The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
BETTYE BEDWELL, Chapter 7 Trustee of the
Bankruptcy Estate of Arthur Levy PLAINTIFF
No. 2:18-cv-108-DPM
G. ADAM COSSEY; HUDSON POTTS &
BERNSTEIN LLP; and JOHN DOES 1-10 DEFENDANTS
ORDER
Affirmed. That would have been the judgment of the Arkansas
Supreme Court on the merits had Cossey and his law firm perfected Dr.
Levy’s appeal by filing the trial court’s record on time. No issue of
jurisdictional significance is presented, and so the case might have been
transferred to the Arkansas Court of Appeals for decision. If so, that
appellate court would have come to the same conclusion.
First, the circuit court did not abuse its discretion by admitting Dr.
William Rutledge’s expert testimony. The Dowd Estate had to establish
Dr. Levy’s alleged malpractice with testimony from another medical
care provider who satisfied Arkansas Rule of Evidence 702 and the
malpractice statute’s criteria, Ark. Code Ann. § 16-114-206(a)(1), which
have been altered and glossed by Arkansas precedent. The statute’s
same-specialty provision fell to constitutional challenge some years
ago. Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 14, 6-
7, 386 S.W.3d 385, 389. But its animating idea remains alive and well:
under Rule 702, a proposed expert must have a solid experiential and
educational basis for his opinions.
When this case was tried, Dr. Rutledge had been practicing
medicine in Arkansas for almost four decades, first as a surgeon and
then as a general practitioner. He had cared for more than one hundred
patients with suspected appendicitis. He had taught at the University
of Arkansas for Medical Sciences. And he was then serving on the
Arkansas State Medical Board. As Dr. Rutledge said, there’s lots of
overlap between his general practice and Dr. Levy’s family practice.
Neither was board certified as an emergency room doctor, but, as Dr.
Levy acknowledged at trial, most ERs are staffed by primary care
physicians and family physicians. Dr. Rutledge’s experience with
diagnosing suspected appendicitis is the core of what made him
qualified to evaluate Dr. Levy’s care of Mrs. Dowd. ARK. R. EVID. 702;
Cathey v. Williams, 290 Ark. 189, 192-93, 718 S.W.2d 98, 101 (1986);
Thomas v. Sessions, 307 Ark. 203, 209, 818 S.W.2d 940, 943 (1991). Unlike
the perinatologist who did not treat babies after birth, but sought to
testify about a failed diagnosis involving an infant more than a year old,
Dr. Rutledge had experience with the circumstances Dr. Levy
confronted when Mrs. Dowd came to the ER in Helena. First
Commercial Trust Co. v. Rank, 323 Ark. 390, 400-01, 915 S.W.2d 262, 266-
67 (1996).
Dr. Rutledge likewise satisfied the statute’s locality requirement,
which is not particularly strict. The Estate didn’t need another doctor
from Helena; it needed a doctor familiar with localities having
facilities, practices, and advantages similar to Helena’s. Rank, 323 Ark.
at 401, 915 S.W.2d at 267. Based on his approximately forty years of
practice in Arkansas, his teaching at UAMS, his service on the State
Medical Board, and his trial attendance during all of Dr. Levy’s
testimony (including about Helena’s medical details), Dr. Rutledge
spoke from a solid local point of view. He knew, in particular, what
diagnostic tools Dr. Levy had at hand in Helena. The circuit court was
well within its discretion in admitting this expert testimony. Brazeal v.
Cooper, 2016 Ark. App. 442, *2, 503 S.W.3d 829, 830-31.
Because Dr. Rutledge was qualified to testify about what Dr. Levy
did right and what he did wrong, the circuit court also did not abuse
its discretion by not granting Dr. Levy’s request for a new trial on the
qualification issues. Suen v. Greene, 329 Ark. 455, 459, 947 S.W.2d 791,
793 (1997).
Second, there was no failure of proof on causation. Dr. Rutledge
was unequivocal: Dr. Levy’s failure to catch Mrs. Dowd’s
appendicitis— by taking an X-Ray, doing a CT scan, or keeping her
overnight for observation —led to the infection that caused her death.
Dr. Levy’s expert agreed that her ruptured appendix was one of two
possible sources for the fatal infection. Dr. Levy placed blame on the
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hospital, the surgeon who eventually operated on her, and those who
transported her to Southaven and then Little Rock. Proximate cause is
almost always a fact question, Coca-Cola Bottling Co. of Memphis,
Tennessee v. Gill, 352 Ark. 240, 254, 100 S.W.3d 715, 724 (2003), and it
was on this record. Whatever may have been the failings of others
involved in caring for Mrs. Dowd, substantial evidence supported the
jury’s conclusion that Dr. Levy’s failure to diagnose her appendicitis
during the first ER visit was a proximate cause of her eventual death.
Stecker v. First Commercial Trust Co., 331 Ark. 452, 458, 962 S.W.2d 792,
796 (1998). The circuit court therefore did not err in denying Dr. Levy’s
motions for judgment as a matter of law either before or after the
verdict.
Third, the jury’s decision not to put any negligence on the
hospital, Helena Regional, or the surgeon, Dr. Major, did not justify a
new trial, either. The Estate dropped its claims against these parties.
Their alleged negligence went to the jury on Dr. Levy’s demand for
apportionment of nonparty fault. He thus had the burden of proof. Dr.
Levy shouldered that burden through testimony from his expert
witness and cross examination of the Estate’s witnesses. But the jury,
of course, wasn’t required to believe this testimony. Rare is the
negligence case where the party with the evidentiary burden is entitled
to judgment as a matter of law. Potlatch Corp. v. Missouri Pacific Railroad
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Co., 321 Ark. 314, 317-18, 902 S.W.2d 217, 220 (1995). The circuit court
didn’t err by denying Dr. Levy’s “I proved my case” motions.
Whether a new trial was justified because the jury’s verdict was
clearly against the preponderance of the evidence is a closer call. ARK.
R. Civ. P. 59(a)(6). The verdict reflects that the jury wrestled with these
issues, at least as to the hospital, because only nine jurors agreed that
Helena Regional wasn’t negligent. Doc. 50-1 at 54. The trial judge saw
and heard all the witnesses. The evidentiary balance in this record is
not so one-sided that an appellate court should second guess his
informed discretion and order a new trial. Switzer v. Shelter Mutual
Insurance Co., 362 Ark. 419, 427-28, 208 S.W.3d 792, 797 (2005).
Fourth, the cases teach that mistrial is a drastic remedy. E.g.,
Stecker, 331 Ark. at 461, 962 S.W.2d at 797. The trial court has wide
discretion here in general and when dealing with counsel’s statements
in particular. National Bank of Commerce v. Quirk, 323 Ark. 769, 787, 918
S.W.2d 138, 148 (1996). Judge Mitchell did not abuse his discretion.
Because Dr. Levy had the burden of proving the negligence of the
others involved in Mrs. Dowd’s case, it was fair comment to argue, as
the Estate’s lawyer did, that Dr. Levy hadn’t called any witnesses
connected with these other parties. The remark, in rebuttal closing,
about Dr. Levy’s failure to testify about his care went too far, though.
The Court is not persuaded that the closing argument for Dr. Levy
invited this remark. It offended the spirit of Ark. Code Ann. § 16-114-
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207(3), which mandates that no medical care provider must give expert
testimony against himself or herself. But, the circuit court promptly
sustained the objection to the remark and told the jury to disregard it.
The court had already told the jury that the lawyers’ words weren't
evidence. It was not an abuse of discretion to conclude that all this was
adequate in the circumstances and that no mistrial was necessary.
Stecker, 331 Ark. at 461, 962 S.W.2d at 797.
Fifth, the trial court did not abuse its discretion by letting the
jury’s $2,805,838.88 damages verdict stand. Giving the evidence its
greatest probative force, substantial evidence supports this award.
Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 742, 120 S.W.3d 61, 68-69
(2003). Mrs. Dowd was a vibrant woman in her mid-forties, devoted to
her husband, children, sister, mother, and friends. She worked, sang in
her church's choir, and enjoyed life. The jury was instructed about all
the elements of damage available to the Estate and the statutory
beneficiaries. The verdict asked the jury only for a bottom line.
The Estate offered proof of slightly more than $800,000 in
pecuniary losses, medical bills, and funeral expenses. That leaves
approximately $2,000,000 for Mrs. Dowd’s pain and suffering, her loss
of life, and her family members’ mental anguish. The Court sees no
indication of passion or prejudice in the jury’s decision. Allstate
Insurance Co. v. Dodson, 2011 Ark. 19, 14-15, 376 S.W.3d 414, 425. Mrs.
Dowd suffered on and off for nine days. Garrison v. Hodge, 2018 Ark.
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App. 556, 14-15, 565 S.W.3d 107, 117. She valued her life. One National
Bank v. Pope, 372 Ark. 208, 214-15, 272 S.W.3d 98, 102-03 (2008). And
her family’s grief was both real and enduring. Tucker, 353 Ark. at 742,
120 S.W.3d at 68. Arkansas has abandoned the notion that grief must
be extreme to qualify. ARK. CODE ANN. § 16-62-102(f)(2); Tucker, 353
Ark. at 745-46, 120 S.W.3d at 71. As Dr. Levy points out, for six of those
nine days Mrs. Dowd was under the care of others. But this is simply
another instance of the proximate cause dispute. The jury could
reasonably have traced all the damages to what it concluded was Dr.
Levy’s original negligence.
Dr. Levy’s lawyers made a serious mistake. Their tardy filing of
the record deprived the Arkansas appellate courts of jurisdiction to
reach the merits. Rose Care, Inc. v. Jones, 355 Ark. 682, 687, 144 S.W.3d
738,741 (2004). On those merits, however, the Dowd Estate would have
prevailed. Because the result in the appeal would have been no
different, his lawyers’ mistake caused Dr. Levy no damage. Swift
Transportation Co. of Arizona, LLC v. Angulo, 716 F.3d 1127, 1133-34 (8th
Cir. 2013) (Arkansas law). Cossey and his law firm are therefore
entitled to summary judgment on count II (appeal-related negligence)
of Bedwell’s amended complaint.
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So Ordered.
D.P. Marshall Jr.
United States District Judge
2( Aecembn AVLV
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