WAL-MART STORES, INC., and Russell White v. Vivian TUCKER, Individually and as Administratrix of the Estate of John Kenneth Tucker, et al.
02-876
Supreme Court of Arkansas
Opinion delivered June 19, 2003
120 S.W.3d 61
Law Offices of E. Ben Franks (Texarkana, Texas), by: E. Ben Franks, for appellee.
ANNABELLE CLINTON IMBER, Justice. This appeal stems from the negligence of a Wal-Mart pharmacist in misfilling a prescription for John Tucker that purportedly resulted in his death. A jury awarded $150,000 to Mr. Tucker‘s estate, $1,000,000 to his wife, and $125,000 to his daughter. Wal-Mart Stores, Inc., and its pharmacist, Russell White, argue on appeal that there was insufficient evidence to support a finding on the element of proximate cause, that the verdict in favor of Mrs. Tucker was a result of passion or prejudice, and that the award to the daughter was not supported by substantial evidence. We affirm.
After working for thirty years in Dallas, Texas, John Tucker and his wife Vivian Tucker retired to DeQueen, Arkansas. While in Dallas, John had undergone cardiac bypass surgery. As of his last check-up in 1996, his cardiologist indicated that John had a life expectancy of five to ten years. When the Tuckers moved to Arkansas, John became a patient of Dr. Keith Mitchell, a family practitioner in Sevier County.
Because John was overweight, Dr. Mitchell prescribed Zaroxolyn to help reduce fluid retention. Zaroxolyn is a diuretic
Shortly after May 15, 1997, John suffered from substantial weight gain due to water retention. He was eventually hospitalized in DeQueen on July 15, 1997, under the care of Dr. Mitchell. Over the course of several days, John‘s doctors were able to reduce his fluid retention and hence his excess weight. He was discharged from the hospital on July 20, 1997. At that time, Dr. Mitchell was unaware of the pharmacist‘s mistake in filling the earlier prescription for Zaroxolyn, so he directed John to return home and double his intake of Zaroxolyn.
John complied with his doctor‘s instructions; however, because of the misfilled prescription, he proceeded to double his intake of Ziac instead of Zaroxolyn. Once again, John experienced a significant gain in weight due to fluid retention. This time, he was hospitalized in Texarkana on July 28, 1997, under the care of Dr. James Hurley. Upon admission to St. Michael Hospital, John was diagnosed with a kidney illness. During this hospitalization, doctors treated him for the kidney condition, and his weight gain due to fluid retention was reduced. John was subsequently released from the hospital on August 9, 1997, and directed to increase his Zaroxolyn intake.
On August 28, 1997, only two capsules remained from the prescription filled on May 15, so John returned to Wal-Mart for a refill. When the pharmacist, Russell White, examined the two remaining capsules, he discovered that he had mistakenly filled the May 15 prescription for Zaroxolyn with Ziac. Upon discovering his error, Mr. White advised the Tuckers that he would contact John‘s doctors. In fact, Mr. White never did talk with any of John‘s doctors, although he did make a call to a doctor‘s office.
John returned home with the properly filled prescription of Zaroxolyn, but without a diminishing supply of Ziac. One week later, on September 4, 1997, he died from a myocardial infarction.
Vivian Tucker, individually and as Administratrix of the Estate of John Tucker, deceased, filed suit against Wal-Mart Stores, Inc., and Russell White. In her capacity as the administratrix of her husband‘s estate, Vivian brought the action on behalf of the estate, John‘s daughter, Johnny Faye Hoffman, and his two granddaughters.1 Following a two-day trial in which four doctors testified as experts, the jury returned a verdict awarding damages in the amount of $150,000 to the estate, $1,000,000 to Vivian Tucker for mental anguish and loss of consortium, and $125,000 to Johnny Faye Hoffman for mental anguish. On March 28, 2002, the circuit court entered judgment against Wal-Mart and Russell White, jointly and severally, for the total amount of damages awarded by the jury, $1,275,000, together with costs and postjudgment interest at the rate of ten percent (10%) per annum. On April 5, 2002, Wal-Mart filed a posttrial motion for judgment notwithstanding the verdict, or in the alternative, a motion for new trial, or a motion for remittitur. All three motions were denied by the circuit court on April 29, 2002.
Wal-Mart and Mr. White (hereinafter referred to collectively as “Wal-Mart“) bring this appeal contending that the trial court erred in refusing to grant a new trial or a remittitur of the total award. First, Wal-Mart contends that Vivian Tucker failed to show that her husband‘s death was proximately caused by the misfilled prescription. Second, Wal-Mart contends that the award of $1,000,000 to Vivian Tucker individually was the result of passion and prejudice. Lastly, Wal-Mart maintains there was no reliable evidence introduced to support the award of $125,000 to Johnny Faye Hoffman for mental anguish.
I. Motion for New Trial
In any action for medical injury, the plaintiff must prove the applicable standard of care; that the medical provider failed to act in accordance with that standard; and that such failure was a proximate cause of the plaintiff‘s injuries. See Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002) (applying
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: . . . (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.
The distinction between a motion for new trial and a directed-verdict motion is a fine one. When a defendant makes an argument that the verdict is clearly against the preponderance of the evidence because the evidence is insufficient to establish one element of a prima facie case to support the cause of action, that argument is in substance a challenge to the sufficiency of the evidence.
In 1983,
A. THE TRIAL COURT ERRED IN REFUSING TO GRANT WAL-MART‘S MOTION FOR NEW TRIAL WHEN THE PLAINTIFF FAILED TO INTRODUCE EVIDENCE THAT THE DECEASED‘S DAMAGES, IF ANY, WERE PROXIMATELY CAUSED BY WAL-MART.
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Before a party may prevail and obtain a verdict, the party seeking recovery must offer sufficient evidence to prove each and every necessary element of the cause of action for which that party has the burden of proof. To recover for negligence, the plaintiff is required to offer sufficient evidence to prove each and all of the following elements: . . . The failure of any one of these elements is sufficient to deny any recovery to the deceased.
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The evidence presented at trial clearly failed to prove that Wal-Mart‘s negligence was the proximate cause of Mr. Tucker‘s death. In fact, not one expert testified within one reasonable degree of medical certainty that the mis-fill was the proximate cause of Mr. Tucker‘s death. To the contrary, the expert testimony established that Mr. Tucker‘s death was not caused by the mis-fill or that, at least, the cause of Mr. Tucker‘s death could not be definitively stated under the circumstances.
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Not one expert, however, testified to a reasonable degree of medical certainty that the mis-fill proximately caused Mr. Tucker‘s death. In fact, if the expert testimony established any-thing, it established that the mis-fill was not the proximate cause of his death. Only one expert stated a conclusion based on a reasonable degree of medical probability as to the proximate cause of Mr. Tucker‘s death and his conclusion was that the mis-fill did not cause Mr. Tucker‘s death.
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Not only does the testimony of every expert fail to eliminate other potential causes of death, but all the experts agree that there were other factors that contributed to or caused Mr. Tucker‘s death.
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[T]his is a case questioning whether Appellees can establish proximate cause when they have offered no evidence regarding proximate cause. That makes it a question regarding whether the evidence was substantial in that it did not exist and not whether it was sufficient.3
The appropriate time to challenge the sufficiency of the evidence to support each element of a cause of action is by a directed-verdict motion. See Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002). The failure to move for a directed verdict at the conclusion of all the evidence, or to move for judgment notwithstanding the verdict, because of insufficiency of the evidence, will constitute a waiver of any question pertaining to the sufficiency of the evidence to support a jury verdict.
II. Damages — Excessive as a Result of Passion and Prejudice
For its second point, Wal-Mart argues that the $1,000,000 verdict in favor of Vivian Tucker was the result of passion and prejudice on the part of the jury. We recognize that a new trial may be granted if a verdict awards excessive damages appearing to have been given under the influence of passion or prejudice.
The verdict in favor of Vivian Tucker was for mental anguish and loss of consortium. Generally, the amount of damages growing out of mental anguish is left to the determination of the jury. Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997). Wal-Mart points out that Vivian Tucker‘s award was almost seven times that of the award to her husband‘s estate. Wal-Mart‘s brief also references various verdicts from unreported trial court cases to buttress its claim that the award in this case was excessive. Evidence of those awards was not introduced below and is not a part of the record on appeal. We do not consider matters outside the record on appeal. Black v. Steenwork, 333 Ark. 629, 970 S.W.2d 280 (1998). Moreover, we are unable to rely on awards made in other cases in determining whether an award of damages is excessive because a comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value. Kelley v. Wiggins, 291 Ark. 280, 724 S.W.2d 443 (1987). More pointedly stated, our determination of whether a jury verdict is excessive is made on a case-by-case basis. See Smith v. Galaz, 330 Ark. 222, 953 S.W.2d 576. (1997).
Next, Wal-Mart complains that Vivian Tucker‘s counsel inflamed passion in the jury by giving the members a direc-
Nine of the twelve empaneled jurors signed the verdict in this case. Based on a colloquy between the court and the jury‘s foreperson, Wal-Mart suggests that the nine jurors who voted in favor of the plaintiff‘s verdict did not want to hear from the remaining three jurors on the amount of damages. Article 2, section 7, of the Arkansas Constitution states:
[I]n all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.
At the outset, we decline to infer that merely because the verdict was signed by nine of twelve jurors, it was given under the influence of passion or prejudice. When an award is alleged to be excessive as a result of passion or prejudice, this court views the proof and all reasonable inferences most favorably to the appellees and determines whether the verdict is so great as to demonstrate passion or prejudice on the part of the trier of fact. Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997). As to our review of damages awarded for mental anguish in wrongful-
(1) The duration and intimacy of their relationship and the ties of affection between decedent and survivor.
(2) Frequency of association and communication between an adult decedent and an adult survivor.
(3) The attitude of the decedent toward the survivor, and of the survivor toward the decedent.
(4) The duration and intensity of the sorrow and grief.
(5) Maturity or immaturity of survivor.
(6) The violence and suddenness of the death.
(7) Sleeplessness or troubled sleep over an extended period.
(8) Obvious extreme or unusual nervous reaction to the death.
(9) Crying spells over an extended period of time.
(10) Adverse effect on survivor‘s work or school.
(11) Change of personality of the survivor.
(12) Loss of weight by survivor and other physical symptoms.
(13) Age and life expectancy of the decedent.
Kelley v. Wiggins, 291 Ark. 280, 724 S.W.2d 443 (1987) (citing Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986); St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977)).
The testimony elicited at trial revealed that John and Vivian Tucker had a very close relationship, and that Vivian suffered greatly from the loss of her husband. They had met in high school, and were married for 41 years. According to Vivian, the only time they were ever apart was for a short period when John moved to Arkansas in order to clear their land. Vivian described the loss of her husband as the most horrible period in her life. She testified that John was her best friend and fishing buddy. During the period that John was taking the misfilled prescription, Vivian took care of him. John was terrified throughout the experience, and she became upset upon learning about the pharmacist‘s mistake. Moreover, since her husband‘s death, Vivian has been forced to learn how to live by herself, but she has not been able to make
Other testimony confirmed the couple‘s close friendship, as well as Vivian‘s deeply-felt loss after her husband‘s death. One grandchild testified that John and Vivian seemed very happy together and loved to do things together. One of their good friends, Marty Brown, testified that Vivian was extremely upset and not ready for her loss. Marty described the loss as horrible. Another friend, Rusty Williams, testified that the Tuckers had a close relationship, and that he did not think Vivian had ever completely gotten over the loss. Vivian‘s sister, Glenda Gschnell, described the two as a classic married couple.
Viewing this evidence in the light most favorable to Vivian Tucker, it is evident that she and John had a very close relationship, and that she has been severely affected by her husband‘s death. Accordingly, we are unable to say that the $1,000,000 jury verdict was given under the influence of passion or prejudice.
III. Damages — Proof of Mental Anguish
The final point on appeal is Wal-Mart‘s claim that an award of $125,000 to the decedent‘s daughter, Johnny Faye Hoffman, for mental anguish is not supported by substantial evidence. Wal-Mart failed to move for a directed verdict at the conclusion of all the evidence. Thus, to the extent that the argument under this point is a claim that the plaintiff presented no evidence of damages, it is really a challenge to the sufficiency of the evidence that has not been properly preserved for the reasons already stated under section I of this opinion. See Benton v. Barnett, 53 Ark.App. 146, 920 S.W.2d 30 (1996). Nonetheless, Wal-Mart also appears to be contending that the amount of damages awarded by the jury is not supported by the evidence. Wal-Mart cites Jefferson Hosp. Ass‘n, Inc. v. Garrett, 304 Ark. 679, 804 S.W.2d 711 (1991), for the proposition that recovery for mental anguish must be based on something more than normal grief occasioned by the loss of a loved one. Additionally, Wal-Mart points this court to Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), and Moore v. Robertson, 244 Ark. 837, 427 S.W.2d 796 (1968), which rely on the premise that mental anguish means something more than the normal grief occasioned by the loss of a loved one. Pursuant to
Wal-Mart further contends that Peugh v. Oliger, supra, stands for the proposition that an award of mental anguish based on testimony other than that of the aggrieved party is insufficient. We disagree. In that case, the court reversed an award in favor of two of the decedent‘s sons where they did not attend their father‘s funeral, did not appear at the trial, and did not testify. Peugh v. Oliger, supra. Moreover, the court qualified its conclusion based on the definition of “mental anguish” that has since been superseded. Compare
Wal-Mart‘s argument under this point hinges entirely on cases that have been legislatively superseded. Consequently, we find the argument to be without merit.
Affirmed.
GLAZE, THORNTON, and HANNAH, JJ., concur.
CORBIN, J., not participating.
TOM GLAZE, Justice, concurring. It does not appear that we have done anything to clarify this court‘s cases dealing with motions for directed verdict, judgment NOV, and new trial. What seems apparent to me is the courts have mixed what standards a trial judge employs when considering these procedural motions and the standards this court uses when it reviews these matters on appeal. Because I agree with the result reached in this case, I simply concur and ask our Civil Practice Committee to address this area of procedural confusion and offer its insight as to a solution.
Whether There Was a Motion for a New Trial
The majority concludes that while the motion may be captioned a motion for new trial, it is actually a motion for a directed verdict challenging the sufficiency of the evidence that was submitted to the jury. I agree that the discussion in the brief includes argument that is couched in terms of a challenge to the sufficiency of the evidence submitted to the jury. There is no doubt that Wal-Mart‘s brief mixes arguments, as the majority shows by quoting portions of the brief. However, even if some portions of Wal-Mart‘s brief may be interpreted to impermissibly challenge the sufficiency of the evidence submitted to the jury, that does not mean that the court may simply dismiss other portions of the brief that argue the trial court erred in denying the new-trial motion.
I first note that Wal-Mart cites Gibson Appliance Co. v. Nationwide Insurance Co., 341 Ark. 536, 20 S.W.3d 285 (2000), for the proposition that this court reviews the denial of a motion for
The standard of review for a motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict, is the same for each, i.e., whether there is substantial evidence to support the jury verdict.
Gibson, 341 Ark. at 544-45. The majority agrees that this is the correct standard of review. Wal-Mart notes evidence submitted in the case and then argues that “the jury‘s verdict is not supported by substantial evidence, and the trial court‘s denial of Wal-Mart‘s motion for new trial must be reversed.” Wal-Mart also argues that, “[n]ot only does the testimony of every expert fail to eliminate other potential causes of death, but all the experts agree that there were other factors that contributed to or caused Mr. Tucker‘s death.” While Wal-Mart goes on to argue about proximate cause at this point, Wal-Mart is also arguing that the jury decided the case incorrectly in contradiction to the expert testimony that was submitted, or in other words, the decision of the jury was contrary to the preponderance of the evidence.
The majority is correct in stating that a failure to make a motion for a directed verdict precludes this court from reviewing whether the evidence was sufficient to submit the issue to the jury. A challenge to the sufficiency of the evidence submitted to
“[t]he experts’ testimony is not of sufficient force to compel a conclusion that Mr. Tucker‘s death was a proximate cause of the mis-fill. As a result, the jury‘s verdict is not supported by substantial evidence and the trial court‘s denial of the Wal-Mart‘s motion for new trial must be reversed.”
The standard of review on a directed verdict motion is whether the jury‘s verdict is supported by substantial evidence.
A directed-verdict motion is a challenge to the sufficiency of the evidence, and when reviewing a denial of a motion for a directed verdict, this court determines whether the jury‘s verdict is supported by substantial evidence.
D.B. Griffin, 349 Ark. at 104 (emphasis added); Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002); Southern Farm Bureau Cas. Ins. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996). However, on appeal from the denial of a motion for a new trial, this court also determines whether the jury‘s verdict is supported by substantial evidence. Gibson Appliance Co. v. Nationwide Ins. Co., 341 Ark. 536, 20 S.W.3d 285 (2000); Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999); Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997); see also Bearden v. J.R. Grobmyer Lumber Co., 331 Ark. 378, 961 S.W.2d 760 (1998); Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30 (1988).
Substantial evidence in the case of a directed verdict motion is “evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other.” Southern Farm Bureau, 326 Ark. at 1027. With respect to reviewing the denial of a motion for a new trial, this court stated in Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989):
When acting upon a motion for new trial challenging a jury‘s verdict, the trial court is required by
Ark. R. Civ. P. 59(a)(6) to set aside the verdict if it is clearly against the preponderance of the evidence or contrary to law. Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987). The test on review, where the motion is denied, is whether the verdict is supported by substantial evi-
Pineview, 298 Ark. at 89. The motion for new trial asks the trial court to determine whether the jury‘s award “was contrary to the preponderance of the evidence.”
The phrase “was contrary to the preponderance of the evidence” was quoted verbatim in Wal-Mart‘s motion for a new trial. The motion for new trial was presented and denied by the trial court. The issue is presented and laid out sufficiently that this court should hear the denial of the motion for a new trial.
Motion for New Trial
The new-trial motion tests the jury verdict after it is rendered. The directed-verdict motion tests the evidence before it is submitted to the jury.
A motion for a new trial asks the trial court to rule on whether the jury returned a verdict clearly contrary to the preponderance of the evidence.
A motion for a directed verdict is brought before the jury is charged and retires to render a decision. Wilson Safety Prods. v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990); see also Cathey v. State, 351 Ark. 464, 95 S.W.3d 753 (2003). A motion for a directed verdict asks not whether the verdict reached by the jury is clearly contrary to the preponderance of the evidence, but rather asks whether there is sufficient evidence to submit an issue to the jury. A motion for a directed verdict is granted where the evidence is so insubstantial that a jury verdict on that evidence would have to be set aside. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992). A motion for a new trial is granted where the jury received sufficient evidence upon which to render a verdict,
A party does not have to make a motion testing the sufficiency of the evidence to go to the jury as a prerequisite to making a motion for a new trial. Motions for directed verdict and judgment notwithstanding the verdict are made to preserve a later argument on the sufficiency of the evidence to go to the jury. ARCP 59 specifically states a motion for a new trial may be granted for eight reasons, one of which is where the verdict is clearly contrary to the preponderance of the evidence. Such a motion does not test the sufficiency of the evidence and is not precluded by Rule 50(e).
Still, some confusion has arisen in the law by the use of the term “sufficiency of the evidence,” with respect to both a motion for a directed verdict and a motion for a new trial. As the majority notes,
in order for an appellant to challenge the sufficiency of the evi-dence in a jury trial, he must either move for a directed verdict at the conclusion of all the evidence, move for a judgment notwithstanding the verdict, or move for a new trial because of insufficiency of the evidence. The failure to do one of these three requirements precludes raising the issue on appeal. Rule 50(e) (ARCP).
McFall, 271 Ark. at 470-471.1 While the language of the court of appeals is not clear, it appears the court of appeals was indicating that a motion for new trial may be used to attack the sufficiency of
We note appellant‘s additional reference to a motion for new trial when discussing the sufficiency of evidence, and take this opportunity to mention our amendment of ARCP Rule 50(e) that omitted any reference to the motion for new trial. That amendment makes it clear that a party must test the sufficiency of the evidence by motions for directed verdict and judgment notwithstanding the verdict, not by a motion for new trial. See In Re: Amendments to the Rules of Civil Procedure, 279 Ark. 470, 651 S.W.2d 63 (1983).
Majewski, 293 Ark. at 363. The sufficiency of the evidence submitted to the jury must be tested by a motion for a directed verdict before the jury is charged. Willson, supra. Nonetheless, this court has continued to use the term “sufficiency of the evidence” in reference to a motion for a new trial. In Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997), this court stated:
A motion for new trial based on
Rule 59(a)(4) or(a)(5) challenges the sufficiency of the evidence to support a jury‘s factual determination of damages. Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994); National Bank of Commerce v. McNeill Trucking Co., 309 Ark. 80, 828 S.W.2d 584 (1992).
Coca-Cola, 328 Ark. at 669. While continuing to use the term “sufficiency of the evidence” has not resulted in greater clarity in this court‘s decisions, the decisions are not in error. As is evident in the above cite to Coca-Cola, in that case this court was examining whether the jury erred in reaching its verdict. This court was determining whether the verdict reached by the jury was supported by substantial evidence. This court was not examining whether there was sufficient evidence to submit the case to the jury. In a given case, there might be sufficient evidence to submit
The standard of review of a motion for a directed verdict and a motion for a new trial is stated in precisely the same words. The standard of review for both the denial of a directed-verdict motion and the denial of a motion for new trial is whether there was substantial evidence to support the jury‘s verdict. However, in the case of a directed-verdict motion, this court must determine whether there was substantial evidence to submit to the jury; in the case of a new trial motion, this trial court must determine whether the jury‘s verdict is supported by substantial evidence, or in other words, whether the verdict is clearly contrary to the preponderance of the evidence. The cases are not as clear on this point as they might be. See Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003) and Pearson, supra; see also, Dorton, supra. However, one need only look to the nature of the two motions to understand that they test two very different events at trial. The directed-verdict motion tests whether the jury was left to speculation and conjecture and thus had no evidence on which to base a decision. See St. Paul Fire & Marine Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995). The motion for a new trial tests whether the jury erred in reaching a decision on the evidence before it.
I would decide the issue of whether the jury‘s verdict was clearly against the preponderance of the evidence, and I would hold that the jury‘s verdict is supported by substantial evidence.
THORNTON, J., joins this concurrence.