holding that a physician was not entitled to a proposed defamation instruction that contained language regarding defamation per se, which had been abolished
How later courts described this case
- holding that a physician was not entitled to a proposed defamation instruction that contained language regarding defamation per se, which had been abolished
- discussing factors to consider when evaluating whether defendant’s conduct was “improper” for purposes of tortious interference claim
- “Corporate agents may not be held liable for civil conspiracy in the absence of evidence showing that they were acting for their own personal benefit rather than for the benefit of the corporation.”
- no civil conspiracy between a corporation and its agents
Written by the judges who cited it.
The opinion
Mike Kinard, Special Justice, concurring in part; dissenting in part. While I concur with the majority opinion on all other points on appeal, I must respectfully dissent with the majority’s disposition of the sixth point on appeal. Thus, I write only to say that I believe it was error for the trial court to disallow Sid McMath’s testimony concerning a summary of 6,000 pages of records that had been introduced and received into evidence.
As a witness, Mr. McMath was accepted as an expert and the trial court allowed him to testify about the 6,000 pages of records, denying him only the right to utilize the summaries he had acknowledged and adopted. I believe that this was error for several reasons.
First, not allowing Mr. McMath’s testimony violates the purpose of Rule 1006 of the Arkansas Rules of Evidence. Rule 1006 controls the admissibility of summaries. The purpose of Rule 1006 is to allow the trier of facts to better understand the admissible evidence otherwise made available to the court. Ward v. Gerald E. Prince Construction, Inc., 293 Ark. 59 , 732 S.W.2d 163 (1987). The requirements of Ward were met when the 6,000 pages of business records had been made a part of the record before the jury and testimony had been allowed regarding their contents.
Second, an expert may rely on facts and data made known to him at or before the trial. Rule 703 of the Arkansas Rules of Evidence in relevant part states:
The facts on data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing
Id. (emphasis added). We have held that the lack of personal knowledge does not require exclusion of the testimony, it merely presents a jury question as to the weight of the testimony. Scott v. State, 318 Ark. 747 , 888 S.W.2d 628 (1994); see also Ark. Highway Comm. v. Schell, 13 Ark. App. 293 , 683 S.W.2d 618 (1985).
Finally, the trial court has broad discretion in determining whether summaries should be admitted. However, the trial court in exercising this discretion should remain mindful of the fact that there is no requirement in the rule that it be impossible to examine underlying records before summaries may be used and the requirement for the rule to apply is that underlying “writings” be “voluminous” and that in-court examination not be convenient. United Sates v. Scales, 594 F.2d 558 (S.D. Ohio 1979).
In the case now before us, the jury was presented 6,000 pages of documents and the trial court allowed testimony regarding their contents. Mr. McMath was eminently qualified and appropriately grounded in the summaries and he could have provided the jury-assistance in understanding the evidence. Additionally, we note that if Mr. McMath had been permitted to testify his testimony would have been subjected to cross examination, and his opinions would have been subjected to the jury’s evaluation as to validity and credibility. Considering the voluminous and technical nature of the documents, the jury’s ability to examine and appreciate the evidence was throughly hampered without Mr. McMath’s testimony. Thus, I would hold that to withhold Mr. McMath’s testimony constituted an abuse of discretion. Accordingly, I would reverse the trial court on this point and I would remand with instructions to allow Mr. McMath to testify about the contents of the summaries.
I am authorized to state that Justice THORNTON joins in this opinion.