*1 81 Dоrado, (of El BANK OF COMMERCE NATIONAL Estate of Linda Arkansas) (only) Conservator Husband; Hoffman; Hoffman, and National Steve Her Dorado, Arkansas) El Guardian of (of of Commerce Bank Hoffman, Brett Hoffman and the Estate Kent (only) Hoffman, Minors v. Dr. Sam BEAVERS Allison Woodiel
Shelby 89-305 S.W.2d 132 Court Arkansas Supreme 10, delivered December Opinion Opinion Rehearing [Supplemental on Denial of January 1991.*] *Newbern, Corbin, and participating. Brown, JJ., *2 Whetstone, P.A., and Bob Bernard Whetstone
Bernard by: Davidson, for appellant. Amsler, Hale,
Barber, P.A., McCaskill, & Jones appel- for lee Dr. Sam Beavers. & Dr. Shelby
Wright, Lindsey Jennings, for apрellee Woodiel. The National Jr., appellants, Chief Justice. Holt,
Jack Hoffman; Commerce, Estate of Linda Bank of Conservator Commerce, Hoffman; of of Guardian Steve and National Bank Kent, Hoffman, minors, Brett, brought Estate Allison Shelby Beavers against suit Dr. Sam appellees, from arising Woodiel to for injuries allegedly recover known for a condition negligent treatment Linda Hoffman “TMJ.” temporomandibular joint dysfunction, treatment contend that Mrs. Hoffman’s Appellants Dr. Woodiel alleged It is phases. “TMJ” consisted of two treated Mrs. one and then during phase Hoffman improperly Beavers, referred her Dr. who was not qualified negligently treat her disorder. It contended that Dr. Beavers rendered care to two negligent during Mrs. Hoffman of her treat- phase ment. found no jury negligence The on the of eithеr Dr. part Woodiel or Dr. Beavers and returned a verdict their favor. error,
On raise six all which appeal, appellants points have no merit.
I. SUPPRESSION OF TESTIMONY first contend that trial court erred suppression testimony that prevented the from being informed the true facts surrounding the *3 They occurrence. claim the jury “only was to be permitted informed of the of the tip This iceberg.” allegation to be on appears based appellants’ assertion that the evidence was admissible suppressed on the issue of punitive i.e. to damages, show wanton and willful conduct on Beavers, the of and part Woodiel a theory rejected the by trial court. See By-Products, National v. Inc. House Searcy Co., Inc., 292 Ark. Moving 731 S.W.2d (1987) (award of punitive damages justified only where evidence indicates defendant acted or wantonly with such conscious indifference to
consequences malice may inferred). be In us, the analyzing record before we note that the appellants do not furnish specific arguments in support proffered court; testimony rather, was excluded the trial court this cited, evidence, to generally, various rules of the to law case the concerning occurrences, admissibility of samе or similar and to from a excerpts Delaware discussing case the of admissibility evidence where are punitive damages involved. Strauss v. See 525 A.2d Biggs, (Del. 1987). Supr. case,
Unlike the present the defendant in Strauss conceded liability compensatory damages, leaving the only amount be to determined. The was plaintiffs theory Strauss that the defendant running was a “podiatric mill” for and profit, the plaintiff was pеrmitted to place into evidence additional acts of negligence to deliberate, show the defendant’s conduct thereby warranting punitive damages.
Here, appellants
theorize that Dr.
similarly
Woodiel and Dr.
testimony regard-
and that
a “dental mill”
running
were
Beavers
of both doctors
of
and the
negligence
competency
acts
various
ing
willful and wanton
their
admitted to show
have been
shоuld
of
support
treatment.
In
surrounding Hoffman’s
misconduct
trial court proposed
furnished
appellants
theory,
their
writings
supported
numerous
testimony
depositions,
and
Punitive
Subjects
(A)
of
Pre-trial Brief
“’’Partial
labeled
of
and Other
Evidence Greed
Damages
(B) Admissibility
brief,
Damages.” In
of Punitive
in Support
Infractions
witnesses, their rela-
various
diagram
name
— in
another,
all
and their purported
one
tionships
damages.
for punitive
claim
of their
support
of this
admissibility
we reach a determination
Before
initial,
damages, our
support
evidence
tendered
must be
on the
admissibility
predicated
inquiry
fundamental
events in question.
not it is relevant to the
of whether or
question
admissible,
necessarily
must
have
the proferred
To be
Evi-
of Linda Hoffman.
treatment
specific
been related
A.R.E. Rule 402. In
not relevant is not admissible.
dence which is
addition,
relevant,
be
if its
may
evidence
excluded
“[although
danger
outweighed by
is substantially
value
probative
issues, misleading
the jury,
confusion
unfair prejudice,
time,
or needless
delay,
considerations of undue
waste
byor
evidence.” A.R.E. Rule 403. The
of cummulative
presentation
*4
admissibility,
of
court has broad discretion in decisions
trial
an
of
discretion.
ruling
will
reverse
abuse
we
its
absent
310,
302
Ins.
v.
Ark.
790
Heslip,
Northwestern Nat’l
Co.
Lifе
(1990).
152
S.W.2d
and,
negligence
found no
jury
We further note that the
no award
no
Since there can be
damages.
awarded
consequently,
dam
damages,
compensatory
absent an award for
for punitive
275,
McManus,
v.
Ark.
II. DISMISSAL OF reversal, contend the In their second for point appellants the Hoffman children from dismissing trial court erred in claim the children via summary judgment. Appellants lawsuit Wоodiel Dr. Beavers and Dr. against had a valid cause of action in a domino-effect in motion a chain of events “setting fashion,” Mrs. Hoffman to inflict the effect of which was to cause and emotional on her children. injuries physical, psychological, Dr. Beavers’ maltreatment resulted such Allegedly, pain Mrs. Hoffman as to cause her to lose control and abuse the children, be under the cаre of a thereby requiring they placed psychologist. concede the Arkansas does not a cause recognize
of action for loss of v. (see Gray consortium parental Suggs, and, instead, (1987)) Ark. characterize the above constituting mentioned “domino effect” as a claim for infliction of emotional distress. our Notwithstanding unwilling- advocate, ness to extend this cause of action far аs we need not consider its merits and whether dismissal was proper since the jury’s verdict renders error harmless. See any potential Mena, Haseman v. Union Bank supra.
The jury negligent found that Dr. Beavers was not his treatment of Mrs. Hoffman. The children’s claim that Dr. Beavers either their mother negligently intentionally treated and thus inflicted emotional distress on improperly, indirectly them, becomes irrelevant. evidence introduced Any children, distress, in furtherance of their claims emotional *5 would not regard have affected the decision with to the issue jury’s Beavers’ conduct. We will not reverse for error where it is Lloyds evident that such error did not affect the verdict. Insured Ark. Mayo, v.
III. VOIR DIRE in prohib- that the trial court erred next contend Appellants counsel, dire, names from reading voir during their iting of the law firms representing members of each individual also without merit. This claim is defendants. following in their brief and provide appendix during voir dire examination: with the trial court
exchange MR. WHETSTONE: here are two represented by
Now the defendants though even law here in town. And different firms — not be involved this case you may in lawyers present — are you any with them if in way, you anywise in any have been your family represented member immediate ,or member of their way been with any any involved firm, we should it would be information рertinent we should know. know properly — true, to the names being going That I’m call Whetstone, Mr. I don’t want to you THE COURT: firm, law through every the name of sir. go every lawyer know or have ever they any attorneys I’ve asked them if firms in those law and I represented by any attorneys been with. they’re trust this know who I acquainted just every want lawyer don’t to take the time naming off that, a That’d take time to do sir. the law long firms. I into go MR. WHETSTONE: shouldn’t that any furthеr at all? No,
THE sir. asked them and we’ve COURT: I’ve in those law both asked them if know they any lawyers I who know of the they firms and trust these know people attorneys like a lot of out attorneys. they It’s not know time, there, we Mr. I’m I’d rather didn’t take sure. Whetstone. sir. move on. sorry, I’m Let’s [Emphasis added.] error, from charging quote
In the trial court (1987), challenges Ark. Code Ann. 16-33-304 which pertains § *6 rather than Rule 47 of jurors to the trial criminal proceedings Rules of Civil Procedure. Rule provides: the Arkansas The Court (a) EXAMINATION OF JURORS. shall either or their to conduct permit parties attorneys jurors the examination or itself conduct the prospective event, In examination. the latter the court shall permit or their to parties attorneys examination supplement such further as it deems inquiry proper. instance, It is obvious in this that the court conducted the voir dire examination in which he asked the panel whether or not knew, or had been they represented by, any or law attorneys firms involved in this litigation, and then determined that he did not deem it or proper to necessary permit attorneys supplement his inquiry.
There are no indications from the record that any of did, fact, the jurors know any the attorneys Dr. representing Beavers, Woodiel and Dr. nor did they identify any rеlationships firms, the attorneys’ law and we think it is sufficient to say that the appellants have not demonstrated any The prejudice. extent of juror examination rests within the trial court’s discre and, abuse, tion absent a showing we will not reverse the matter Harrison, Goodwin v. appeal. 300 Ark.
IV. IMPEACHMENT For error, the fourth point of appellants argue that the trial court erred in permitting defense counsel to impeаch Melissa Rollins through questioning witness, of a Hall, subsequent Peggy without first a laying proper foundation. Hall,
Peggy Dr. Beavers’ officemanager, testified that either time, at the or after Melissa Rollins was discharged Beavers, Ms. Hall, Rollins told Ms. “I will get Beavers.”
Appellants contend that Ms. Hall’s testimony with regard statement was in error of Rule 613(b) of the Arkansas Uniform Evidence, Rules of which states:
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a inconsistent prior statement by a witness is not admissible unless the witness the same deny to explain an opportunity
is afforded interrogate an opportunity is afforded party the opposite thereon, require otherwise justice interests or the him *7 given Rollins was that Ms. argue Appellants Ms. Hall was before the statement deny explain opportunity 613(b) inapplicаble Rule disagree. it. We about questioned Ms. Rollins record indicates nothing in the since situation to, with, or in opposition either in accordance a remark ever made Therefore, no “prior Ms. Hall. to by testified the statement issue, overruling of and the court’s was at statement” inconsistent basis was correct. on this objection the appellants’ TESTIMONY V. REPUTATION error, the trial that submit, their fifth point for Appellants George Dr. Lay from erred suppressing court for truthful- Dr. Beavers’ knowledge reputation his regarding among his associates. ness was questioned a witness for Lay, appellants,
Dr. honesty Dr. Beavers’ knowledge reputation his regarding stated Lay When Dr. direct examination. during the community once, his and was not aware of Dr. Beavers he had met only that court refused the trial community large, in the reputation objеcted subject. Appellants further on this testify him to allow will We Lay. additional from failed to proffer but when excludes evidence ruling trial court’s that not find error on a Co., 287 Ark. Bank & Trust McIlroy v. Flynn there is no proffer. 190, (1985). EVIDENCE NEWLY DISCOVERED
VI. erred in trial court argue Finally, appellants of newly for a new trial on basis their motion refusing grant consisted of a video tape The evidence discovered evidence. ABC’s documentary produced of a television transcript “20/ following which aired 20,” The program, a news weekly program. trial, was Rogel that a Dr. Owen revealed the conclusion similar, to the alleged, dental mill” running a “TMJ Beavers and Woodiel. one Drs. being operated by authority as an acknowledged expert Rogel
88-A
witnesses; however,
neither a
he was
the appellant’s expert
one of
lawsuit,
the relevance
in the
and we fail to see
nor a witness
party
of a new trial
granting
case. The
present
of the t.v. program
is not
favored
and a
remedy,
discovered evidence
a
newly
based
acting
discretion in
on such a
great
trial
is vested
judge
White,
St. Louis Southwestern
Co. v.
Rwy.
778 S.W.2d
motion.
483,
denied.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
JANUARY *8 Whetstone, P.A., Bernard by: Bernard Whetstone and Bob Davidson, for appellant.
No response. Holt, Jr.,
Jack Chief Justice. The National appellants, Bank of Hoffmann, Commerce and Steve a request rehearing on
88-B in opinion. two errоrs our perceived of the basis their of First, theory that we overlooked argue the appellants held inadmissible testimony, which certain the case upon court, was offered. trial claim, that the in that opinion appellants’ We stated our “ the iceberg’ of tip to be informed of ‘only permitted was that assertion the sup- to be based on appellants’
appear [ed] damagеs, on the issue punitive evidence was admissible pressed Dr. of Woodiel part wanton willful conduct on i.e. to show and (and law it . We the rule of made explained Dr. Beavers. . .” and where there is no award holding) compensa- of our that part case, award for punitive this there can be no damages, tory on the testimony and thus issue damages the suppression most, would, harmless error. See damages constitute punitive Mena, Ark. v. Union Bank Haseman appellee, out that rightfully point The appellants Woodiel, for punitive was not claim appellants’ included requesting that damages appellants’ complaint the portion against only. directed Dr. Beavers Appel argue thus that our consideration of the proffered lants and, that we overlooked this basis was error as to Woodiel “the allegations instances of suppressed supporting negligent treat illegal that Melissa Rollins was performing that his was the ment to Linda Hoffman.” claim “[t] Dr. Beavers his unlicensed assistant (the negligence issue via We note Rollins) Melissa punitive damages.” —not brief argument appellate was not raised the appellants’ specific *9 we not consider on ordinarily arguments rehearing do Motor, raised on Inc. v. International Harvester appeal. Burks Granted, Co., 641, Ark. the issue (1971). 466 S.W.2d out was raised in which was set in their appellants’ complaint, brief, and alluded to in statement that Woodiel appellants’ done if services were regarding damage might testified the be Rollins). (such an unlicensed assistant as Melissa performed as arguably “argu Since such allusions be considered may ments”, we will the merits of contеntion. appellants’ discuss the in we that our was overbroad
Initially, acknowledge opinion both in our discussion of including Dr. Beavers and Woodiel
88-C Dr. Woodiel from excluded damages appellants since punitive damages claim. Our discussion of punitive this of their part “dental mill” should have alleged and the operation claim Dr. Beavers. The issue of punitive been confined to not, however, trial court’s affirming our sole basis for in as the suppression question, appellants contend.
We stated that before a determination of admissi- reaching initial, “our fundamental bility damages, support (of us) as the evidence before must be inquiry admissibility on the whether or not it is relevant to the predicated question 403, events in Arkansas Rules of Evidence 402 and question.” cited, regarding were with the along relevancy, appropriate standard for review that the trial court has broad discretion in decisions of and we will not admissibility, ruling reverse its absent an abuse of this discretion. Northwestern Nat’l Ins. Co. v. Life 302 Ark. Heslip, In summarizing our holding we point, stated:
Examination of this evidence reflects that it either failed to meet the threshold test of relevancy under A.R.E. Rule or, relevant, if was subject to exclusion under A.R.E. Rule 403 or that it was tendered by the fоr the appellants purpose establishing issue of punitive damages, which, mentioned, as previously of no moment. considered, court, we
Clearly, as did the trial threshold issue of relevancy regard to all of the proffered testimony. Evidence proffered support appellants’ theory of negligence, without evidence, conforming the rules of is not enough to warrant its admission at trial. cite,
The appellants as an of their example support “theory”, the testimony of Dr. Woodiel in which he testified that he considered Dr. Beavers to be and that Dr. incompetent Beavers was allowing Melissa Rollins to perform illegal and negligent work on note, Linda Hoffmann. We again as we did in our opinion, that the from Dr. excerpt Woodiel’s deposition referred the appellants was merеly quoted length in their brief without any argument or reference as to exactly portion of the testimony the felt was excluded or the wrongly rationale. underlying The court was left to speculate *10 88-D the together general by piecing exact arguments
appellants’ the brief and the rules of evidence in to various citations transcript. the and contained in pleadings information Furthermore, testimony that some of Dr. Woodiel’s we note testimony”) of other (as majority “suppressed well as the at issue verbatim, brief entitled in the appellants’ pre-trial was quoted, Punitive and subjects (A) Damages Brief on “Partial Pre-trial of Greed other Infractions Evidence and (B) Admissions court, as the trial well as Damages,” leading of Punitive Support court, damages for was the that a claim punitive believe this testimony. the proffered basis for trial court these the Notwithstanding prоblems, prop other testimony as well as testimony, excluded Woodiel’s erly 403, which states the on the basis of Rule by proffered appellants, relevant, evidence, excluded if its be although “may proba that outweighed danger the unfair tive value substantially issues, or the or misleading jury, confusion of the prejudice, time, waste needless of undue or delay, presen considerations evidence.” Dr. Woodiel’s admitted lack of tation of cumulative orthodontics, the addition to fact that field of expertise other as rendered his experts, called several dentists appellants misleading both cumulative. refer of other The also to “dozens such brief,” that summarily concluding instances overlooked in the (most, if Judge Bogard “. . . abused his discretion in suppressing all, brief) This broad of) (in testimony.” the indicated R. doеs of Ark. Ct. requirement Sup. statement not meet “dis 20(f), rehearing must petition states that Moreover, .” grounds state the relied . . . tinctly upon testimony” “other consists almost entirely assistants, who former and associates of Beavers patients, Hoffmann, were unconnected the treatment of Linda issues bar. was thus excluded as irrelevant to the properly reasons, holding For these we leave undisturbed our excludеd either proffered testimony appellants’ properly because it was submitted on the issue of Rules 402 and Dr. Beavers because it was inadmissible under 403. *11 holding our challenge
The also appear submit of Melissa Rollins. Appellants regard impeachment from again, but our argument simply quote opinion, no We 20(f) arguments. distinct violation Rule requires thus decline to address this second point.
Petition for is denied. rehearing
Newbern, Corbin, Brown, JJ., not participating. Katrina Margie (Lewis) McCORMAC v. Michael Bryan
McCORMAC
90-225 Court of
Supreme Arkansas delivered Opinion December