# Wallace v. Broyles > Supreme Court of Arkansas · January 15, 1998 · 331 Ark. 58 URL: https://www.frixlaw.com/law-library/cases/7826628 ## Case - **Full name:** Jacqueline WALLACE, Individually and as the Administrator of the Estate of Larry Shannon Wallace v. J. Frank BROYLES, Individually Dean Weber, Individually James Woody Woodell, Individually Harp's Food Stores, Inc., Dr. John P. Park, Dr. Tom Philip Coker, Dr. Tom Patrick Coker, Dr. Walter "Duke" Harris, and Ozark Orthopaedic Sports Medicine Clinic, Ltd. - **Court:** Supreme Court of Arkansas - **Decided:** January 15, 1998 - **Citations:** 331 Ark. 58; 961 S.W.2d 712; 1998 Ark. LEXIS 12 - **Precedential status:** Published - **Opinion:** Dissent by Dubarnold - **Judges:** Arnold, Corbin, Dub, Glaze, Thornton - **Cited by:** 102 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7826628 ## How later opinions describe it (automated extraction) - holding that an “actor [must] reasonably foresee an appreciable risk of harm to others” ## Opinion text W.H. “Dub” Arnold, Chief Justice, dissenting. Although the majority correctly notes that the trial court applied the wrong evidentiary standard, it incorrectly concludes that Wallace offered proof of any genuine issue of material fact as to the essential element of causation. The majority’s attention to the irrelevant, albeit unsavory, practices of the Athletic Complex, ultimately eclipses the well-settled rules of causation and logical legal argument that settle this case. Proximate causation cannot be based on mere coincidence. Wirth v. Reynolds Metals Co., 58 Ark. App. 161, 169 , 947 S.W.2d 401 (1997). Fair-minded people could not conclude, without speculation, that allegedly negligent distribution of narcotics by the Athletic Complex caused Shannon Wright’s suicide. In meeting its burden of proof, Wallace and this Court engage in the logical fallacy known as post hoc, ergo propter hoc, literally “after this, therefore because of this.” The fallacy results from confusing sequence with consequence. See Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995). To accept the argument that the mere timing of these two events, (i) negligent distribution of narcotics by the Athletic Complex and (ii) Wright’s suicide, is sufficient to establish a causal connection, is to have this Court accept the faulty reasoning of post hoc, ergo propter hoc. This fallacy in reasoning is aptly described as “Hydra-headed, and although cut off again and again, has the characteristic of an endless removal.” Kramer Service Co. v. Wilkins, 186 So. 625, 627 (Miss. 1939). See also Wirth v. Reynolds Metals Company, 58 Ark. App. 161 , holding that appellants failed to offer proof of proximate causation to support their negligence claim, relying on the persuasive authority of Western Geophys. Co. of America v. Martin, 174 So. 2d 706 (Miss. 1965), and the precedents upon which it relies, including Wilkins. The Mississippi Supreme Court, in the Wilkins case, said: That heresy is that proof that a past event possibly happened, or that a certain result was possibly caused by a past event, is sufficient in probative force to take the question to a jury. Such was never the law in this state, and we are in accord with almost all of the other common-law states. . . . “Post hoc ergo propter hoc” is not sound as evidence or argument. . . . Possibilities will not sustain a verdict. It must have a better foundation. . . . Wilkins, 186 So. at 627 . The Mississippi Supreme Court also noted, “It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence.” The mere possibility that the injury complained of was caused by negligence is not sufficient to establish proximate causation or to sustain a verdict. Id. First, the majority adheres its argument to the testimony of Wallace that she saw Wright with “two white caplets,” which she claims to have identified later as Darvocet. However, Wallace failed to present any evidence to the trial court that Wright obtained the two white caplets from the Athletic Complex. Second, the majority relies on the affidavit of a professor at the University of Oklahoma Pharmacy and Medicine College, who averred that propoxyphene, the active ingredient in Darvocet, may not be detected in a blood sample although behavioral effects could persist for four weeks. This line of argument begs the question. Although the drag’s effect may allegedly linger in the body, there remains no evidence showing that Wright received any Darvocet from the Athletic Complex. Further, the Chief Toxicologist for the State Crime Laboratory and the Chairman of the University Pharmacy and Toxicology Department presented evidence that Wright’s blood stream after death revealed an alcohol content of .23% and no other drugs. Additional forensic evidence suggested that Wright had no allergic reaction. Wallace testified that Wright was allergic to the drug Wygesic and that he had an earlier episode of a fine, red rash all over his body when he took that drug. The Dean of the College of Pharmacy at UAMS testified that the two major active ingredients in Wygesic are the same as those found in Darvocet, and that if a person is highly allergic or sensitive to Wygesic, he would have a high probability of suffering the same or similar allergic or sensitivity reaction to Darvocet. Moreover, Wallace noted that Wright had no reaction that she observed after taking the “two white caplets.” The medical evidence and testimony fail to offer proof of Wallace’s assertion that Wright took Darvocet or received Darvocet from the Athletic Complex. Assuming, arguendo, that we permit a jury to reach the question of Wright’s tenuous identification of the two caplets as Darvocet, we must then permit a jury to consider whether two caplets constitute “excessive doses” of Darvocet, the amount of the product identified in the product warning as linked to a “major cause of drug-related deaths.” Again, note that no drugs were found in Wright’s system. There is no evidence that Wright’s death was a “drug-related death,” and the only evidence alleged is that Wallace saw Wright on one occasion with a total of two caplets that she later identified as Darvocet. There is no genuine issue of material fact for the jury to weigh. Third, the majority poises its argument on the affidavit of the strength coach who stated that Wright told him that he was taking Motrin and “another pain medication.” There is no evidence presented that this “pain medication” was Darvocet. Additionally, there remains the absence of any shred of evidence that the “two white caplets” identified by Wallace were obtained from the Athletic Complex. To deny appellees’ motion for summary judgment, we must have some evidence finking these “two white caplets” to the Athletic Complex. The majority enumerates the evidence that thousands of units of prescription drugs were distributed to athletes, that large orders of Darvocet were distributed, and that Darvocet was the acknowledged painkiller. However, the mere allegation that Darvocet was available at the Athletic Complex is insufficient to establish proximate causation or to sustain a verdict. Moreover, Wallace failed to offer any testimony from any physical trainer, fellow athlete, or University personnel in support of her theory that Wright obtained these “two white caplets” from the Athletic Complex. Indeed, the record is devoid of any testimony substantiating a causal connection. A myriad of possibilities remains as to where Wright could have gotten the “two white caplets.” A jury could only conclude based on mere speculation and conjecture that he got the caplets from the Athletic Complex. In St. Paul Fire & Marine Insurance Co. v. Brady, 319 Ark. 301 , 891 S.W.2d 351 (1995), this Court considered proof of proximate causation in the negligence context. St. Paul involved an elderly man whose injury and death might have been attributable to either a fall at a hospital, an earlier fall at home, or an aneurysm. The medical testimony indicated that a conclusion concerning the cause of the injury would be purely speculative, and all that remained was anecdotal information from a variety of witnesses. Noting that the jury was left to speculation and conjecture in deciding between two equally probable possibilities, this Court held that the trial court erred in failing to direct a verdict on the issue of the sufficiency of the medical evidence of proximate causation of injury and death. Although proximate cause may be proved by either circumstantial or direct evidence, the proof must tend to eliminate other causes that may fairly arise from the evidence. St. Paul, 319 Ark. at 306 (citing McAway v. Holland, 266 Ark. App. 878 , 599 S.W.2d 387 (1979)). Arguably, the evidence in St. Paul was more compelling than that in the instant case. The jury in St. Paul had testimony relating to the two falls as possibilities to consider. Here, we have no evidence of any causal connection with the one theory advanced by Wallace. The appellee in St. Paul could at least prove that the decedent had fallen twice. Here, we have no evidence that Wright obtained any Darvocet from the Athletic Complex or that he ever took any Darvocet obtained from any source whatsoever. One cause of Wright’s death that fairly arises from the evidence is that Wright committed suicide because he was depressed over the breakup of his girlfriend, Kit Carson. Wright was a troubled young man who had been an alcoholic for years. His alcohol and emotional problems existed prior to his September 11, 1993, football injury and continued until his death. He had threatened to commit suicide on several occasions. On one occasion, after an argument with his girlfriend, he slit his wrists. Prior to his suicide, he had broken up with his girlfriend. The night he shot himself, Wright told a friend that he was “very hurt” over the breakup “and didn’t care what was going to happen from then on . . .” As Wright stated in a note he wrote shortly before his death, “I have recently just suffered the biggest loss of my life. Her name was Kit. There is nothing left but one of two alternatives. Either death or dedication to work. For now I’ll choose the ladder [sic], so I will plan out every step of the day . . .Condition — miserable, empty, burdened.” He unfortunately chose the first option. The evidence offered by Wallace does not tend to eliminate this conceivable yet tragic possible cause of Wright’s death. In another apposite case, a person who had been in an automobile wreck and no longer had “any get-up-and-go” suddenly died four weeks after the wreck. McAway v. Holland, 266 Ark. App. 878 , 599 S.W.2d 387 (1979). In McAway, the Arkansas Court of Appeals affirmed the trial court’s finding that the death was not proximately caused by the accident and observed that lay testimony on cause of death is unacceptable. The court noted: There is no circumstantial evidence — even the most scant — which suggests a causal connection between the accident and death. The mere fact both happened about a month apart proves nothing. If there had been some evidence of causal connection maybe the lay testimony might have been slight corroboration. However, standing alone it is nothing. . . . McAway, 266 Ark. App. at 883. The majority opinion clouds the dispositive issues in this case that mandate affirmance. Even if appellees’ failure to implement appropriate procedures for handling the distribution of prescription drugs amounted to negligence, Wallace fails to make the causal connection between that negligence and her son’s suicide, an essential element in her negligence action. Moreover, the majority’s conclusion that appellees acted with malice is wholly unsupported by the evidence. A review of the pleadings, depositions, and other filings reveals, in my opinion, that there is no genuine issue of any material fact. Viewing all evidence in the light most favorable to Wallace, and resolving doubts against the appellees, the appellees are entitled to summary judgement as a matter of law. After appellees made a prima facie showing of entitlement to summary judgment, Wallace failed to meet proof with proof, and she is not entitled to rest on mere allegations or conjecture but must set forth specific facts demonstrating a genuine issue of fact. Accordingly, I believe that the trial court’s judgment granting summary judgment in favor of appellees should be affirmed. Corbin and Thornton, JJ., join. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7826628. Public record. Not legal advice.