Arthur v. Zearley, 94-1012
| Decision Date | 10 April 1995 |
| Docket Number | No. 94-1012,94-1012 |
| Parties | James ARTHUR, M.D., Allan C. Gocio, M.D., Hot Springs Neurosurgery Clinic, P.A., St. Joseph's Regional Health Center, Inc., Calcitek, Inc., Sisters of Mercy Medical Systems, Sisters of Mercy Health System--St. Louis Pooled Comprehensive Liability Agreement, and American Medical International, Inc. d/b/a National Park Medical Center, Appellants, v. Betty Jo ZEARLEY and Herman Zearley, Brad Cazort and Sandra Partridge, as Administrators of the Estate of Charlotte Phillips Cox, Deceased, Appellees. |
| Court | Arkansas Supreme Court |
James M. Moody, Edwin L. Lowther, Jr., Kathryn A. Pryor, Little Rock, for St. Joseph's Reg.
J. Phillip Malcom, Little Rock, for James Arthur, M.D.
Robert S. Shafer, Lyn P. Pruitt, for Allan C. Gocio, M.D., Hot Springs Neurosurgery and Calcitek, Inc Rhonda M. Wheeler, Mike Huckabay, Tim Boone, Little Rock, for American Medical Intern., Inc.
George Ellis, Benton, Charles R. Hicks, George R. Wise, Jr., Lamar Porter, Bob Davidson, Little Rock, for appellees.
This is an interlocutory appeal from an order certifying a class action. Appellees Betty Jo Zearley and Herman Zearley successfully sought certification in circuit court of a variety of tort claims centered around medical malpractice arising out of the alleged improper surgical implantation, by Drs. James Arthur and Allan C. Gocio, of a product known as "Orthoblock" into the spines of several patients. Appellees Brad Cazort and Sandra Partridge, acting as administrators of the estate of Charlotte Phillips Cox, deceased, were permitted to intervene in the lawsuit and serve as additional class representatives. We initially granted a temporary stay of the trial court's order certifying the class and requested the parties to file briefs. In examining the issues on their merits, we hold that the trial court abused its discretion in allowing the testimony of appellees' counsel at the hearing, and in certifying the cause as a class action.
The appellants are the physicians, their clinic, the hospitals where the surgeries took place, and the manufacturer of Orthoblock, who, together, make the following assignments of error: (1) that the trial court erred in certifying the class; (2) that the trial court erred in permitting class counsel to testify and act as advocate in the same proceeding; (3) that the trial court erred in failing to deny class certification when there were pending lawsuits arising out of the same transaction or occurrence; (4) that the trial court erred by adding additional class representatives; (5) that the trial court erred in ordering the hospitals to breach the physician-patient privilege by identifying non-Orthoblock patients; and (6) that the trial court erred in finding that venue was proper in Saline County. We hold that trial court abused its discretion in allowing the appellees' counsel to testify and acts as advocate in the same proceeding, and in certifying a class where individual issues predominated over common questions of law or fact. In so holding, it is unnecessary for us to address the remaining arguments, and we reverse and remand this case to the trial court with instructions to decertify the class.
On June 24, 1993, Appellees Betty Jo Zearley and Herman Zearley filed a complaint in Saline County Circuit Court alleging medical negligence, battery, fraud, outrage, strict liability and breach of warranty arising out of the surgical implantation of a medical product called "Orthoblock" into Mrs. Zearley's spine. The Zearleys named as defendants Dr. James Arthur, who performed the surgery, Dr. Allan Gocio, who assisted in the procedure, their clinic, Hot Springs Neurosurgery Clinic, P.A. (together, the "physicians"), Calcitek, Inc. ("Calcitek"), the manufacturer of Orthoblock, and St. Joseph's Regional Health Center, Inc. ("St. Joseph's), where the procedure took place.
Approximately one year later, on June 9, 1994, the Zearleys amended their complaint to request certification of over 300 of the physicians' patients who had undergone similar surgeries involving Orthoblock, and added the Appellant American Medical International, Inc., d/b/a National Park Medical Center ("AMI"), where some of the patients' surgeries had taken place. In response, Calcitek argued that due to approximately 80 other actions filed in other counties arising out of the same circumstances, the Zearley's request for certification should be denied.
After a hearing at which the trial court allowed, over objection, testimony of Charles Hicks, one of the attorneys for the Zearleys and other parties seeking to become class representatives, it announced by letter opinion on July 7, 1994, its intention to certify a class against all defendants except AMI, who had not yet entered an appearance. Thereafter, the Zearleys filed a motion to approve notice to prospective class members and to add additional representatives. At a subsequent hearing on September 15, 1994, with AMI having entered an appearance, the trial court approved notice and allowed, over the objection of appellants, appellees Brad Cazort and Sandra Partridge, attorneys and administrators of the estate of Charlotte Phillips Cox 1, deceased, to intervene as parties plaintiff and to become additional class representatives. The trial court also ruled, over objection, that venue was proper in Saline County. It is from these adverse rulings that this appeal is taken.
The physicians, in a position adopted by Calcitek, AMI, and St. Joseph's, allege that the trial court erred in allowing one of the attorneys representing the class, Charles Hicks, to testify and act as advocate at the July 7, 1994, class certification hearing. During this proceeding, Mr. Hicks took the witness stand and testified under oath while his associate, Mr. Porter, asked questions of him on direct examination. As the physicians assert in their brief, Mr. Hicks testified as to the characteristics of Orthoblock, commented on what medical X-rays showed, summarized the anecdotal complaints of his clients, described medical tools allegedly used to insert the Orthoblocks, offered his opinion on the expected length of trial and the adequacy of potential compensation, and concluded that there was "no question this is a mass injury situation." It was also through Mr. Hick's testimony that all of the appellees' exhibits were introduced. While Mr. Hicks was undoubtedly the primary witness at the hearing, Betty Zearley and Herman Zearley also offered testimony. The physicians objected to Mr. Hicks's testimony at the July 7, 1994, hearing, and again a post-hearing motion to reconsider and to disqualify him as counsel, both of which were overruled by the trial court. On appeal, Mr. Hicks asserts that he merely assisted the trial court with an analysis and evaluation of the proof, and was not actually a witness in the case.
Model Rule of Professional Conduct 3.7 provides as follows:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
The general rule is clear and unmistakable. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. The reasoning underlying the general rule is to prevent prejudice and a conflict of interest. The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Conversely, a witness is to tell the truth without loyalty to either party and without regard to which side his testimony might favor. Combining the dissimilar roles of attorney and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and his client. The court of appeals has written that:
There are several reasons for the general rule. First, because of interest or the appearance of interest in the outcome of the trial, the advocate who testifies at trial may be subject to impeachment and the evidentiary effect of his testimony will be weakened, thus harming his client. Second, opposing counsel may be handicapped in cross-examining andarguing the credibility of trial counsel who also acts as a witness. Third, an advocate who becomes a witness may be in the unseemly position of arguing his own credibility. Fourth, the roles of advocate and witness are inconsistent and should not be assumed by one individual. Last, the attorney should not act as both trial counsel and a material witness because of the appearance of impropriety.
Ford v. State, 4 Ark.App. 135, 139, 628 S.W.2d 340, 342 (1982) (footnotes omitted).
Our case law is equally clear. In Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977), in interpreting an earlier version of the same rule, we wrote:
The Arkansas Reports are replete with cases where this Court has registered its disapproval of an attorney testifying in an action in which he is an advocate. See: Canal Insurance Company v. Hall, 259 Ark. 797, 536 S.W.2d 702 (1976); Watson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974).
In this action, one of the appellant's attorneys testified in behalf of appellant. We must again take this opportunity to reiterate strongly our disapproval of an attorney testifying in an action in which he is an advocate. An attorney who is to testify in an action should withdraw from the litigation. On the other hand, if an attorney is going to serve as an advocate for his client, he should refrain from testifying in the action.
Id. at 551, 559 S.W.2d at 151.
Other cases where we have made similar statements include the following: Purtle v. McAdams, 317 Ark. 499, ...
To continue reading
Request your trial
- Arthur v. Zearley
-
Directv, Inc. v. Murray ex rel. an Ark. Class Persons
... ... Vickers, 2009 Ark. 259, 308 S.W.3d 573, and Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995), two cases in which this court held that the ... ...
-
Mega Life & Health Ins. Co. v. Jacola
... ... In support of this argument, the dissent cites Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995). The Arthur opinion, however, is devoid of any ... ...
- Hernandez v. Cnty. of Monterey