*1 273 ARTHUR, M.D., Gоcio, M.D., James Allan C. Hot Springs Clinic, P.A., Health Neurosurgery Regional St. Joseph’s Center, Inc., Calcitek, Inc., Medical Mercy Systems, Sisters of — Sisters of Health St. Pooled Mercy System Louis American Medical
Comprehensive Liability Agreement, and International, Inc. d/b/a National Park Medical Center Jo ZEARLEY Herman Brad Cazort Betty Zearley, and Sandra as Administrators of the Estate of Partridge, Cox,
Charlotte Deceased Phillips 94-1012 S.W.2d 895 928 Court of Arkansas
Supreme Opinion delivered April [Rehearing May denied 1995.*] Bullion, Newbern, Glaze, *Special Wright join. Justices Ernie E. and Bruce T. Brown, Roaf, JJ., participating. not *3 Malcom, Clark, S. & J. Robert Friday, Eldredge by: Philip Arthur, M.D., Graves, for James Shafer, appellants and Allison Clinic, Gocio, M.D., P.A.. C. Neurosurgery Allan Hot Springs Lowther, Jr., for & L. Lindsey Jennings, by: Edwin Wright, Center, Inc. and Sisters Health Joseph’s Regional St. appellants Mercy System. Health Williams, Mitchell, by: Lyn P. Woodyard, Gates & Selig, Calcitek, Wheeler, Inc. appellant Pruitt and M. Rhonda P.A., Munson, & Mike Huck- Huckabay, Tilley, by: Rowlett *4 Boone, Medical Interna- abay and Tim for American appellant tional, d/b/a National Park Medical Center. Inc. Jr., Hicks, Wise, Firm, R. George R. by:
Hicks Law Charles Porter, Ellis, George appellees. Lamar Bob Davidson and interlocutory This an appeal Holt, Jr., Chief Justice. Jack Betty Jo Zear- from an action. certifying Appellees order a class in cir- certification Zearley successfully sought and Herman ley medicаl claims centered around variety cuit court of a of tort surgical alleged implan- out of the malpractice arising improper Gocio, tation, of a Allan C. product Drs. James Arthur and patients. known the of several spines as “Orthoblock” into as adminis- acting Partridge, Brad Cazort and Sandra Appellees deceased, Cox, were trators of the estate Charlotte Phillips additional class in and serve as to intervene the lawsuit permitted of the trial stay We representatives. initially granted temporary to file court’s order the parties the class certifying requested merits, that the briefs. In the their we hold examining issues on trial court in allowing аbused its discretion cause as counsel at the and in appellees’ hearing, certifying a class action. clinic,
The are the their appellants hospitals physicians, where the the manufacturer took surgeries place, Orthoblock, who, following assignments make the together, class; (1) (2) that error: that the trial court erred in certifying the trial court erred in and act testify class counsel permitting (3) in erred as advocate the same that the trial court proceeding; in when there were failing deny class certification pending occurrence; (4) lawsuits out arising same transaction or that the trial court erred additional class by adding representa- tives; (5) that the trial court erred in ordering hospitals breach the non- physician-patient privilege by identifying (6) Orthoblock in patients; finding that the trial court erred that venue was proper Saline We hold that trial court County. abused its discretion in testify counsel to allowing appellees’ and acts as advocate in the same proceeding, certifying class where individual issues over common predominated ques- tions of law or fact. In so it is for us to holding, unnecessary address the and we and remand remaining arguments, reverse this case to the trial court with decertify instructions to class.
Facts 24, 1993, On June Jo and Herman Appellees Betty Zearley Zearley filed a complaint Saline Circuit Court County alleg- fraud, ing medical negligence, liability strict battery, outrage, and breach of warranty arising out of the surgical implantation of a medical product called “Orthoblock” into Zearley’s Mrs. Arthur, spine. Zearleys named as defendants Dr. James who Gocio, performed Dr. Allan who in the surgery, pro- assisted cedure, clinic, Clinic, their Hot P.A. Springs Neurosurgery Calcitek, (together, (“Calcitek”), Inc. the man- “physicians”), Orthoblock, ufacturer of and St. Health Cen- Joseph’s Regional ter, Inc., (“St. where the took Joseph’s), procedure place. *5 later, 9, 1994, one Zear-
Approximately year on June leys amended their certification of over 300 complaint request who had similar undergone surgeries physicians’ patients Orthoblock, and added the American Med- involving Appellant International, Inc., Park ical d/b/a National Medical Center (“AMI”), where of the had tdken surgeries some patients’ place. Calcitek that due to 80 other argued response, approximately filed in other counties out of the same circum- arising actions stances, Zearley’s for certification should be denied. request allowed, at which the trial court hearing objec-
After a over Hicks, tion, of Charles one of the for the attorneys seeking and other to become class Zearleys parties representa- tives, 7, 1994, July it announced letter on its inten- opinion AMI, all against tion to a class defendants who certify except Thereafter, had not entered an filed yet appearance. Zearleys a motion to notice to class members and to approve prospective add additional At a on representatives. subsequent hearing Sep- 1994, 15, tember with AMI entered an the trial having appearance, allowed, court notice and over the approved objection appel- lants, Brad Cazort and Sandra and appellees Partridge, attorneys Cox1, deceased, of Charlottе administrators estate Phillips to intervene as and to become additional class parties plaintiff rep- ruled, The trial objection, resentatives. court also over that venue in Saline It County. rulings is from these adverse proper this is taken. appeal Attorney
I. as witness advocate Calcitek, AMI, in a physicians, position adopted by St. that the trial court erred in allege one of Joseph’s, allowing class, Hicks, Charles attorneys representing testify 7, 1994, act advocate at the Dur- July class certification hearing. this Mr. Hicks took the witness stand and testi- ing proceeding, associate, Porter, fied under oath while his Mr. asked questions of him on direct examination. As the in their assert physicians brief, Orthoblock, Mr. Hicks testified as to the characteristics showed, commented on what medical summarized the X-rays clients, anecdotal of his described medical tools complaints pending against Cox, had a and AMI at the Calcitek, 1Ms. action physicians, Partridge, time her Her death. Cazort testified at the attorneys, September hearing of their motion to intervene and to serve as class support representa granted tives, which the trial court in its entirety. *6 Orthoblocks, his on opinion offered to the used insert allegedly com- of potential of trial and the length adequacy the expected this is a “no question that there was and concluded pensation, testimony Mr. Hick’s through It was also situation.” injury mass While Mr. introduced. exhibits were that all of the appellees’ Betty at the hearing, witness undoubtedly the primary Hicks The testimony. physi- Herman also offered Zearley Zearley 7, 1994, hear- at the testimony July to Mr. Hicks’s objected cians and to dis- motion to reconsider ing, again post-hearing counsel, which were overruled the trial him as both of qualify he assisted the merely Mr. Hicks asserts that court. On appeal, the and was trial with an and evaluation of analysis proof, court in not a witness the case. actually Rule of Professional Conduct 3.7 provides Model follows: at a trial in which
A shall not act as advocate lawyer where: except the to be a witness lawyer likely necessary is issue; (1) an relates to uncontested testimony (2) and value of relates to the nature testimony case; or services rendered legal (3) would work sub- lawyer disqualification the client. stantial on hardship lawyer A shall not rule is clear and unmistakable. general likely lawyer at a trial in which the is to be act as advocate rule necessary reasoning underlying general witness. The interest. The professional and a conflict of prevent prejudice exercised, within the bounds of of a should be judgment lawyer law, client and free of compro- for the benefit of his solely tell a witness is to Conversely, influences and mising loyalties. either and without regard the truth without loyalty party the dissimilar Combining which favor. testimony might side attorney opposing party roles of and witness can prejudice and his lawyer can involve a conflict of interest between written that: client. The court of has appeals First, rule. because There are several reasons for the general of interest the outcome of interest or appearance trial, bemay subject the advocate who testifies at trial effect of his evidentiary and the to impeachment Second, weakened, his cliеnt. harming oppos- will be thus cross-examining may handicapped counsel ing who also acts as a of trial counsel credibility arguing Third, may who becomes a witness an advocate witness. *7 own credibil- of his unseemly position arguing be in the Fourth, and witness are incon- the roles of advocate ity. Last, individual. by not be assumed one sistent should and a mate- act both trial counsel attorney should not because of the appearance impropriety. rial witness 135, 340, State, 139, (1982) 342 4 628 S.W.2d v. Ark. App. Ford omitted). (footnotes State, In v. 262
Our case law is
clear.
equally
Enzor
545,
(1977),
earlier ver
in
an
interpreting
Ark.
The Arkansas Reports
replete
attorney
of an
tes-
registered
this Court hаs
its disapproval
Canal
in which he
an advocate. See:
an action
is
tifying
Hall,
797,
fied in behalf of We must appellant. attorney reiterate our of an tunity strongly to disapproval in which he an advocate. An attor- an action is testifying from who to in an action should withdraw testify is ney hand, On the other if an to litigation. attorney going client, an advocate for his he should refrain from serve as in the action. testifying 551,
Id. at
281
Tinder,
994,
(1974);
McWilliams v.
256 Ark.
S.W.2d
511
480
911,
(1974);
Alford,
Watson v.
255 Ark.
(1) A if lawyer testify can solely relates matter; (2) an A uncontested can nature lawyer testify to the value legal services rendered the case client; (3) or firm the A lawyer can if lawyer testify refusal would work client substantial on the hardship because of the distinctive value his firm lawyer or as counsel in the case. particular Not one of the three before exceptions is the case applicable *8 us. These three are the the rule. exceptions only provided by ones It is a rule settled of construction when certain that exceptions rule, are in a specified all others are excluded. The Latin maxim is expressio unius est exclusio alterius. us,
In the case before the trial court allowed Hicks’s Mr. on the basis that he had in a on “testified deal- hearing ing with a procedural consideration Accordingly, the court.” by the appellees ask us to that agree because class certification trial,” was and, Mr. Hicks did an “procedural,” not act as “advocate such, as rule general an from testi- prohibiting attorney fying is not applicable. In we rejecting appellees’ аrgument, recognize that there is no that an to exception attorney allows testify about of a class certification a contested propriety case, and note that the an creation of such would not exception be a An legitimate construction of the rule. in our attorney sys- tem of jurisprudence is to serve as an to have advocate and is law, complete loyalty, within the bounds of the client. The his attorney so acted at the on direct hearing. certification He testified Orthoblock; examination about the testified characteristics of showed; about what medical x-rays summarized the anecdotal clients; complaints his testified foundation for intro- exhibits; duction of testified about the medical in the tools used an procedure; even that testified there was “no this is a question of his cross-examination The beginning mass situation.” injury as follows: is abstracted on all on the record plead-
I am the counsel plaintiff’s Porter, me asking Mr. who’s been in these 80 cases. ings firm by law . . . my employed questions [on direct] . . . litigation in all this I have a interest financial I very to as a witness. At this moment I’m testifying that and not acting as to factual issues strictly am testifying I fee my contingency I not renounce before advocate. did my credibility put that stand ... As I’ve testified and took stand, an I have maintained that witness still as issue from differ- 80-something with attorney/client relationship added.) in the lawsuits. litigants (Emphasis ent be certified. The was whether a class should issue contested all at the parties The even fully, bitterly, issue contains ten vol hearing The record of the certification hearing. the certification con ruling The to this court of appeal umes. abstract, Mr. in full eight engaged briefs. Hicks tains one his clients with all known advocacy, representing and complete interests, he ability. Aside from clients’ of his considerable He only had close interest. not something very personal certification, he sought identity also all sought pos class class, as he who become members asked might sible clients obtained, for, order to disclose requiring appellants an numbers, addresses, names, num security social telephone other had this same three hundred who patients pro bers of over become members of this lawsuit. cedure so would they with Under ability. a class action all of his advocating witness was *9 circumstances, we hold that it was error to Mr. Hicks permit these In act proceeding. and as advocate in the same declar testify error, we the trial ruling acknowledge judge’s that this was ing of he have certified the in the absence that would class finding case, That we must now exam testimony. being Mr. Hicks’s ine evidence to determinе whether trial court remaining certifying erred in the class. requirements
II. Class certification We of class under an review certification questions See Summons v. Missouri abuse of discretion standard. Pacific
283 Railroad, (1991). Arkansas Rule Ark. 813 S.W.2d 23(a) to a class of Civil sets out prerequisites Procedure action:
(1) that members is joinder the class is so numerous of all (2) of law or fact com- questions there are impracticable; class; (3) of the the claims or repre- mon to the defenses of the defenses sentative are claims or parties typical class, (4) and will and parties fairly representative of the the interests class. adequately protect R.R., See v. supra. also Missouri Pac. Summons In addition to these class action must also be prerequisites, 23(b), which maintainable under Rule states in part pertinent that:
An
may
action
maintained as
class action if the pre-
satisfied,
(a)
are
requisites
subdivision
and the court
that the
law or
questions
finds
fact
to the mem-
common
bers of the class
over
predominate
any questions affecting
members,
individual
only
and that a class action is supe-
rior to other available
for the
and
methods
fair
efficient
adjudication
controversy.
of the
Wood,
See also Lemarco Inc. v.
305 Ark.
adopted by
by
Joseph’s,
St.
is that
the issue of informed consent
foundational
to the individual
claims and cannot be tried
class
and find
on a
basis. We agree,
persuasive the cases cited
physicians
their
support
States,
argument.
(E.D.Pa.
Harrigan
United
Whether class relied particular tation, what scrutiny will close require example A member and class said between a class his physician. method of treat- member’s medical condition and particular in order determine proximate ment must examined extent of such and the actual any damage cause claimed of what All of involve damage. foregoing questions under his par- for a medically particular patient appropriate . ticular circumstances . . with issues rеlating
. . . court must grapple complex [T]he the need surgery, to a medical condition patient’s prior medical extent of such care required for condition, care and the between dialogue nature of the variable *11 itself, the and surgical post- physician patient, process and care. surgical complications 198 Cal. 920. Rptr. brief, the by
In their the that the cases cited argue appellees consent, the of informed while involved the sole issue physicians of Orthoblock in the here the “common surgeries provides use itself was They argue link.” that because the use of this product in FDA for use by in that it was not the approved exрerimental to obtain duty the breached their surgeries, physicians spinal in informed consent to use the word by failing “experimental” for We not find this argument persuasive, conferences. do patient the are in in the no to know what was said appellees position Arthur, oral conferences with other Dr. in physicians’ as patients, stated that each of the communications with the deposition Orthoblocks were oral and not written. The appellees’ argument is further weakened their own by as issue complaints, informed throughout negligence, consent is woven their claims and fraud battery, outrage, tort or fraudulent concealment. In of their that thе of com- support position requirements met, have monality predominance not been the physicians (1987), Ark. which out the refer to Code Ann. 16-114-206 sets § in medical as injury, burden of for a an action for proof plaintiff a framework for of informed con- considering well as issue states, (b), in follows: in which pertinent part, sent subsection (a) (b)(1) Without of subsection limiting applicability section, a medical of this where the claims that plaintiff care failed information to adequate provider supply obtain the informed of the consent injured person, plain- treatment, tiff shall have the burden of that the proving than an emer- or other surgery performed proсedure, did not that the medical care provider situation and gency treatment, of information supply type regarding given or as would have been surgery customarily procedure, other in the or injured person to patient position for such a patient authorized to consent persons give training expe- medical care with similar providers other treatment, surgery or at the time procedure, rience in which the medical care locality provider practices or in a locality. similar has satisfied whether
(2) determining plaintiff section, (b)(1) the fol- of this of subdivision requirements as material issues: be considered matters shall also lowing aware- ordinary intelligence (A) person Whether injured person or to that position in a similar ness reasonably on his behalf could persons giving consent or hazards inherent such to know of the risks expected treatment, surgery; or procedure, *12 or con- (B) party person giving the the injured Whether inherent such treat- the or hazards knew of risks sent ment, surgery; or procedure the undergone have (C) injured party Whether would treatment, risk procedure, surgery regardless or thereof; informed whether he did not to be or wish involved care (D) it for medical Whether reasonable provider was information because such disclosure limit disclosure of to adversely substantiаlly to and affect be expected could condition. person’s injured added.) (Emphasis statute, called with will be jury upon this accordance vary factors which will with each individual plain-
assess several tiff, of the under section “position injured person” including and (b)(2)(A), will have a medical history as each patient unique condition, The complaints pre- treatment diagnosis, plan. and trial indicate that while had patients to the court some sented vertebrae, at level of the had the Orthoblock inserted one others at two three levels. The Orthoblock also device inserted or fit the shaped patient part in different sizes and was used while аnd some had patients repeat of the surgical procedure, others, Mrs. had the Orthoblock Zearley, surgeries, including removed. would type
It also that the of information that significant under “at the time treatment” section given customarily (b)(1) to the vary According will from patient patient. also Arthur, were surgeries per- of Dr. the Orthoblock deposition 1993. this January During November 1989 formed between months, .expe- and two both the years physicians’ of three span rience with the of Orthoblocks and the available knowledge use concerning cervical fusion were surgeries constantly changing, which affected the content of their disclosures to the patients standard of care. For Dr. Arthur applicable example, stated Hall, that he offered one Mr. three deposition patient, which could be options regarding materials used the fusion bone, freeze-dried bone procedure: from his and Orthoblock. hip, Dr. Arthur further how explained medical of HIV knowledge via transmission freeze-dried bone had since the time of changed Mr. Hall’s surgery. (b)(2)(B),
Referencing section the knowledge of the patient or other authorized to will person give consent necessarily vary by virtue of and contact with prior experience other patients, this difference will likely affect the of fact finding regarding the individual of the patient’s appreciation risks the adequacy of the disclosures that were made. Also variance is whether the would have chosen the patient Orthoblock surgery regardless of risk, if or he or she would have not to be simply preferred (b)(2)(C) informed. The application section requires inquiry case, into all the circumstances each individual surrounding including testimony and credibility the dis- patient, *13 circumstances, tress of the and patient’s the assessment of jury’s what at the informed transpired consent conference. Referring to Dr. Arthur’s the again deposition, doctor related that Mr. Hall was in extreme cussed, when the pain Orthoblock procedure was dis- him,
and that Mr. Hall stated to “I don’t care you what there; use in make arm just my quit hurting.” fact,
The ultimate trier of in whether determining limitation disclosure in any upon was reasonable of the light pa (b)(2)(D), in tient’s condition section will undoubtedly take into account the available the alternatives to particular patient, or her for the prognosis recovery, degree of the patient’s pain the suffering, patient’s emotional and other individual stability, main, medical or in factors. We cannot psychological say, that these facts alone provide which requisite commonality sum, the certification of a In warrants class. when applying case, informed сonsent Arkansas’s statute to facts in this it clear that individual is issues over com predominate questions the members of the mon to class on the issue of informed con sent alone.
288 consent, informed there surrounding
In to the facts addition For uncommon to the class members. are which are other issues uncommon, instance, such that of appears the issue causation had not made a that the physicians if were to find even the jury disclosure, use of Orthoblock resulting a failure and such proper injury of the patient’s in not be the cause may proximate surgery loss; rather, medical con- the patient’s or other factors peculiar Moreover, damages. or cause оf dition be sole may proximate are against of Calcitek warranty claims for breach appellees’ treatment, class for inappropriate likewise uncommon fit- a breach the warranties of each claim alleges individual in damages. which resulted merchantability proximately ness and reasons, we need to further discuss issue For see no these reference the warranty. adopts by physi- breach While Calcitek this it in its brief that the emphasizes cians’ on argument point, not suitable for class liability claims for are products individual v. Raye well. cites the case of Medtronic treatment as Calcitek (D.Minn. 1988), in F. 1273 its Corp., Supp. support рosi- tion, court, liability in a products which Minnesota district reasoned as follows: involving pacemaker, action cited This case is similar the cases defen- very in which refused to classes in actions certify dant courts defective medical those cases and alleging products. case, not questions there are common simply enough this fact to mechanism. Issues justify of law or use class with separately litigated respect which would need to be causation, member liability, damages. to each include: F. at 1275. Supp. Raye analyzing The rationale of decision helpful us, here, dif potential liability facts before as Calcitek’s could сlaims, the physicians, fer the individual actions of among AMI will vari likely St. as intermediaries Joseph’s, stated in Rose Medtron Appeal ance. the California Court As *14 ics, 150, Inc., (1980): Cal. 166 Cal. 16 App.3d 107 Rptr. manufacturer of defective any potentially product,
Like of varying periods defendant face claimants with may needs vary- for its product, varying replacement, use causation, of of degrees injury, elements varying ing amounts damages. of varying
289 at 20. Cal.Rptr. Orthoblock, individ- will face As manufacturer of Calcitek ual at levels of claimants who had the devices inserted various needs their over a who had varying spines three-year period, As stated subsequent surgicаl previously, procedures. issue of informed will from vary consent likewise patient causation, affecting injury, the elements of patient, degree damages.
Granted, there when are looking pleadings, common class cer questions among law the individuals seeking tification, as all the same theories of complaints allege legal — fraud, recovery medical strict negligence, battery, outrage, and breach liability We have said that under our warranty. Rule class that there party seeking certification has to show were common questions of law or fact. See Union International Elec., Hudson, & Radio Mach. Workers v. 295 Ark. of S.W.2d 81 925, (1988), Communities, quoting Ross Ark. 258 Ark. (1975). However,
III. Conclusion Granted, we have held that a trial court has broad discretion to allow or disallow an action to as a Sum proceed class action. R.R., mons v. Missouri Pac. supra, International Union Elec trical, Hudson, Radio and Machine Workers v. supra. While our apprоach taken recently questions of class action certification liberal2, has been described as we held have not that a trial court’s discretion so broad it cannot subject proper R.R., review. See Summons v. Pac. supra. us,
On the record before we no have hesitation in holding — Gould, 2See Kenneth S. Wine in an — New Old Bottle Arkansas's Liberalized Action?, Class Action Treatment A Procedure Boon to Consumer Class 17 U. (1994). Ark. Little L.J. 1 Rock *15 290 Mr. Hicks’s allowing in
that the trial court abused its discretion In hold- certification. so ordering in testimony, subsequently the and remand and reverse stay we the ing, dissolve temporary to the class. decertify with trial court’s order instructions in this T. Bullion joins opinion. Justice Bruce Special Wright in dis- part concurs Justice Special Ernie E. in sents part. JJ., not participating. Glaze, Brown, Roaf,
Newbern, Justice, in concurring Wright, Associate Special Ernie E. revers- in the Majority opinion I concur dissenting part. part, this case a class the court certifying the trial ing action; however, judgment court that the trial disagree holding I with its Hicks, Mr. an for the attorney its in allowing abused discretion on the testify proceeding procedural to at the appellees, pretrial The certified as a class action. issue of whether the case should be trial to the word “pretrial” suggests proceedings preliminary itself, trial the merits. to a on nоrmally which refers the in a trial of jury
Mr.
was not before
testimony
Hicks’s
merits,
trial
offered and received
the case on its
as it was
I believe an
appli
court
issue.
only
procedural
appropriate
on
testimony
cation of
3.7 is to
it as applicable
Rule
construe
incident
final
disposition
trial of a case on its merits or
case,
author
There is substantial
judgment.
such as
summary
Enter.,
&
637
v. C O
Kapco Mfg.
this view. See
ity supporting
Harmon,
361,
(N.D.
1985); Mobley
313 Ark.
F.
Ill.
v.
Supp. 1231
State,
(1993);
Ark.
S.W.2d
v.
271
607
1987), refus- reversed the trial court for Court Supreme Ohio that on attorney testify ground to allow the ing party Responsibility. it in violation of the Code Professional might be rule does not togo competency The court stated com- must determine the judge and that the trial testimony to the disciplinary without reference petency rule. rule, courts, with with model look dealing federal *16 client;
disfavor
an
on
attorney testifying
behalf of
how-
upon
ever,
do not
rule as
they
going
construe the
to the competency
In
testimony. See
The trial judge has considerable discretion
regarding
evidence, and,
admission of
on
when
appeal,
fails
appellant
him,
establish that
attorney’s tеstimony prejudiced
admission of the testimony
ground
is not a
for reversal. In Re
Lee,
(Ill.
Marriage
481 N.E.2d
1985).
App. Dist.
Arkansas,
accord,
the rule on
review in
appellate
as this court
Pierce,
does not reverse
absent
showing of
prejudice. Peters
(1993);
314 Ark.