The opinion
Layton Roaf, Judge, concurring. I agree that this case must be affirmed, but write separately to express my concern that Gail Parkerson has been made, through the mechanism of summary judgment, to jump through the same hoop twice. The affidavit of her expert witness, now deceased, established that there was a genuine issue of material fact on the question of informed consent, as this court so held in reversing the trial court’s first grant of summary judgment. In Reeder v. Harper, 788 N.E.2d 1236 (Ind. 2003), a case factually similar to Parkerson’s, the Supreme Court of Indiana reversed a grant of summary judgment, holding that a deceased physician’s affidavit, although inadmissible at trial, could properly be considered in opposition to a renewed motion for summary judgment where there was no evidence suggesting that the substance of the affidavit would not be admissible at trial in another form, most likely through the testimony of another expert witness. In Parkerson’s case, the appellees are certainly entitled to know who her expert witness will be in a timely fashion prior to trial — that Is called “discovery” — and to conduct whatever further discovery they deem appropriate. However, Parkerson has already established that she “has a case” insofar as informed consent is concerned and should not be made to do so twice. This is apparently not the law in Arkansas in regard to renewed or serial summary-judgment motions, as the majority points out, albeit in reference to cases that are factually dissimilar to the one before us. See, e.g., Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802 , 957 S.W.2d 700 (1997); Bushong v. Garman Co., 311 Ark. 228 , 843 S.W.2d 807 (1992); Short v. Little Rock Dodge, Inc., 297 Ark. 104 , 759 S.W.2d 553 (1988). Closer on point is Head v. United States Fidelity & Guaranty Co., 247 Ark. 928 , 448 S.W.2d 941 (1970), in which the supreme court affirmed a grant of summary judgment on a second motion. The supreme court held that the denial of the first motion was not res judicata; however, the court noted that the issues in the second motion were not the same. It may well be that the sound reasoning of Reeder v. Harper, supra, should be employed when considering an identical summary judgment motion for the second time. However, it is not for this court to make that call, and I agree that we must affirm on this issue.
I also note that Parkerson is proceeding pro se, although she appears from the record before us to have been diligent in seeking counsel after her earlier attorneys withdrew from the case. Indeed, she had obtained an attorney who was prepared to represent her after this court reversed the trial court’s first grant of summary judgment. However, the attorney requested a continuance in January 2002 of the March 2002 trial setting, and determined that he could not adequately prepare for trial when the trial court denied the continuance. After his withdrawal, the trial court granted Parkerson’s pro se request for continuance by order dated two weeks before the March 2002 trial date. The appellees’ “Renewed Motion for Summary Judgment” was filed on February 14, 2002, and summary judgment was granted on June 13, 2002, nearly five months before the new trial date. Parkerson apparently was not able to obtain another lawyer in the three-month period between the trial court’s grant of continuance and the time in which she was to respond to the renewed summary-judgment motion. Nevertheless, I agree that a pro se litigant can receive no special consideration on appeal, see, e.g., Gidron v. State, 312 Ark. 517 , 850 S.W.2d 331 (1993), and that this case must be affirmed.