The opinion
ROBERT L. BROWN, Justice, concurring.
I agree with the majority opinion in every respect but one and that concerns whether ProAssurance preserved an objection to the disallowance of the use of Dr. Kim Bingaman’s deposition. A look at the procedure in this ease convinces me that the issue was preserved.
Dr. Bingaman was initially the Methe-nys’ expert witness regarding physician liability. She was deposed, but the Methe-nys decided not to call her as a witness or use her testimony in the ensuing trial against ProAssurance, the insurance carrier for Arkansas Childrens’ Hospital. The Methenys filed a motion in limine to prevent ProAssurance from using the depositions of its non-testifying experts at trial to establish the liability of the physicians and not Arkansas Childrens’ Hospital.
ProAssurance responded to the motion and stated that it would not use the depositions of non-testifying experts but that it expected Dr. Bingaman to testify and be subject to crossjexamination.27 Dr. Binga-man was not called as a witness at trial, and ProAssurance sought to use her deposition as part of its defense.
When part of Dr. Bingaman’s deposition was proffered to the trial court during the defense case, defense counsel said, “My proffer is accepted, but we would not be allowed to present that testimony, correct?” The trial court responded, “That’s correct.” To me this was a rejection of ProAssurance’s efforts to use part of Dr. Bingaman’s deposition in its defense. Accordingly, I disagree with the majority on this point.
Having said that, I question whether the trial court was not correct in its ruling. Use of a deposition of an expert witness taken by an opposing party may be used to establish the standard of care in certain instances, but I question that the circumstances in the instant case qualify. Initially, this court has held that a party need not be placed in the position of explaining why it is not calling a deposed witness at trial. See Western Sizzlin Corp. v. Parks Land Co., LLLP, 2009 Ark. 277 , 309 S.W.3d 193 . In the instant case, it appears that the Methenys would be placed in that position. As a second matter, Dr. Adada, the leading neurosurgeon, forthrightly testified at trial that he was negligent. As a consequence, it would seem that Dr. Bingaman’s testimony to that effect would be cumulative. Accordingly, the prejudice from disallowing part of this deposition into evidence would be nonexistent. For that reason, I concur in the result reached by the majority.