The opinion
RHONDA K. WOOD, Judge, concurring.
I write separately to distinguish the circuit court’s error in granting Dr. Smith’s directed-verdict motion. The majority finds that the court improperly weighed evidence and that the court’s comments “crossed the line” similar to State v. Long, 311 Ark. 248 , 844 S.W.2d 302 (1992). I disagree and instead find that the circuit court improperly assessed the nature of the evidence as being insubstantial to create the likelihood that a jury could be compelled to find Dr. Smith liable.
When considering a motion for a directed verdict, the court is charged with determining whether there is substantial evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or another. The Medical Assurance Co., Inc. v. Castro, 2009 Ark. 93 , 302 S.W.3d 592 . A trial court clearly cannot consider credibility or Rweigh opposing evidence. Id. The court is, however, charged with determining whether the evidence presented rises to the level of being substantial enough to compel a jury. Id.
In the present case, the court stated, “I don’t think there is any substantial evidence that Dr. Smith had anything to do with this occurrence.” The court applied the proper rule, but on review, we disagree and find that the evidence was substantial. Although the circuit court went further and stated that even the plaintiff didn’t believe that Dr. Smith was at fault, that comment pointed out an inconsistent theory of the case. In my view, this comment was not an improper weighing of the evidence and should have no bearing on our decision to reverse.
Because I agree with the majority that the evidence presented was substantial, I agree that the directed verdict was in error.