Montgomery v. Butler, 91-100
| Decision Date | 01 June 1992 |
| Docket Number | No. 91-100,91-100 |
| Parties | Lois MONTGOMERY and Bill Montgomery, Appellants, v. Dr. R.C. BUTLER, Appellee. |
| Court | Arkansas Supreme Court |
Phillip J. Duncan, Little Rock, for appellants.
Colleen M. Barger, R.T. Beard, III, Little Rock, for appellee.
This is an appeal from a jury verdict in favor of the appellee, Dr. R.C. Butler, on a claim of medical malpractice against him by the appellants, Lois and Bill Montgomery.
The underlying facts show that Mrs. Montgomery was referred to Dr. Butler, a gastroenterologist, by her family physician, Dr. Howard R. Harris, for tests and treatment of her complaints of recurrent stomach pains, nausea, and diarrhea, including evaluation for possible Crohn's disease. In February 1987 Dr. Butler performed a colonoscopy, in which he found no evidence of Crohn's disease, and instituted treatment for inflammatory bowel disease. In June 1987, Mrs. Montgomery entered Baptist Medical Center where another gastroenterologist referred by Dr. Harris, Dr. Bill Morton, performed tests that revealed the presence of Crohn's disease.
Dr. Morton treated Mrs. Montgomery for six weeks, and she showed temporary signs of improvement. In late July 1987, however her condition worsened, and she underwent surgery for the removal of a large portion of her small intestine.
The Montgomerys filed suit against Dr. Butler on the basis that he was negligent in not having diagnosed or treated Mrs. Montgomery for her Crohn's disease. After trial, the jury returned a verdict in favor of Dr. Butler, and the Montgomerys now assert four points of error on appeal: 1) the trial court erred in failing to grant a mistrial when Dr. Butler presented inadmissible and prejudicial evidence to the jury, 2) the trial court abused its discretion in allowing certain surgeons to testify as experts on Dr. Butler's behalf concerning the treatment of Crohn's disease by medication as distinguished from treatment by surgery, 3) the trial court erred in allowing and condoning the use of the phrase "guilty of medical malpractice" to be stated as law before the jury, and 4) the trial court erred in unduly limiting their examination of witnesses.
Dr. Butler argues that the Montgomerys' appendix is defective under Ark.Sup.Ct.R. 9 because they failed to include in their appendix the trial court's final judgment, their motion for judgment notwithstanding the verdict or, in the alternative, for new trial, and their notice of appeal.
Rule (9)(d) at the time the Montgomerys filed their appendix provided in pertinent part:
(d) Appendix.--Following the argument portion of the appellant's brief, the appellant shall include an appendix, consisting of those portions of the designated record ... the appellant deems dispositive of or directly relevant to the issue or issues on appeal.... The appendix shall include, in the following order:
* * * * * *
(ii) relevant pleadings;
* * * * * *
(v) the verdict or findings of fact, conclusions of law and judgment or decree;
(vi) relevant post trial motions and orders;
* * * * * *
(ix) the notice of appeal, as well as the petition for review if the case has been decided by the Arkansas Court of Appeals.
Failure to place a copy of a part of the record in the appendix will not preclude the court from referring to it, but the court will not consider itself obligated to go beyond reading the briefs and included or separate appendices to decide a case.
From examination of the Montgomerys' appendix, it is obvious that they have failed to comply with Rule 9(d) by not including any pleadings, the verdict, notice of appeal, or any post-trial motions as required by the rule. The question then arises as to whether we can decide the points of error raised by the Montgomerys in their arguments by reading their briefs. The quick answer is that we find from a reading of the briefs and the appendices that sufficient material parts as are necessary for an understanding of the questions at issue have been presented to us, and we can and should render our decision on the merits. In doing so, we affirm. See generally Harrison Civil Serv. Comm'n v. Reid, 261 Ark. 42, 546 S.W.2d 413 (1977) (); Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972) ().
Initially, the Montgomerys contend that the trial court erred in failing to grant a mistrial when Dr. Butler presented inadmissible and prejudicial evidence to the jury. Specifically, the Montgomerys allude to Exhibit 11, which is not contained in the transcript, and to Court Exhibit 2, which is in the transcript but which is not part of their appendix or Dr. Butler's supplemental abstract.
Arkansas Sup.Ct.R. 9(d) provided that the failure to place a copy of a part of the record in the appendix will not preclude the court from referring to it, but the court will not consider itself obligated to go beyond reading the briefs and included or separate appendices to decide a case. In examining the parties' briefs and appendices, we find that the only reference to these materials that the Montgomerys claim is objectionable is their inclusion in their briefs of the following exchange between counsel and the trial judge in an in-chambers hearing:
As we do not have either Defendant's Exhibit 11 or Court's Exhibit 2 properly before us, we are unable to determine from this exchange the exact nature of the documents in question or their contents. Although we find, in examining the record, Court's Exhibit 2, we are not obliged to consider it because we do not go to the record to reverse. Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984). Consequently, we are unable to decide this issue on the merits.
Next, the Montgomerys argue that the trial court abused its discretion in allowing certain surgeons to testify as experts on Dr. Butler's behalf concerning the treatment of Crohn's disease by medication as distinguished from treatment by surgery.
With regard to the admissibility of expert testimony, we reiterated in Hardy v. Bates, 291 Ark. 606, 727 S.W.2d 373 (1987), that whether a witness may give expert testimony rests largely within the sound discretion of the trial court and that determination will not be reversed unless an abuse of discretion is found. Additionally, we have noted that expert testimony is admissible if it will aid the trier of fact in understanding the evidence or in determining a fact in issue. An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the ability of the trier to understand and draw its own conclusions. Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Finally, we have consistently held that a jury is not bound to accept opinion testimony of experts as conclusive or to believe the testimony of experts any more than the testimony of other witnesses; the jury alone determines the weight to be given the evidence, and it may accept or reject all or any part of it that its members believe to be true. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).
In this case, the Montgomerys presented the expert testimony of Dr. Harris, a family practitioner, and Dr. Morton, a gastroenterologist, as to Mrs. Montgomery's tests, treatments, diagnoses, and surgery. Dr. Butler presented the expert testimony of three witnesses: 1) Dr. Mark Gibbs, a surgeon specializing in the surgical treatment of Crohn's disease who was trained to understand its pathophysiology, etiology, epidemiology, and medical treatment, 2) Dr. Everett Tucker, Jr., a surgeon, who was frequently called to see patients with Crohn's disease, and 3) Dr. Ralph Ligon, a surgeon, who was familiar with the different types of medical regimens prescribed for patients with Crohn's disease.
Simply put, the record reflects that the trial court was extremely evenhanded in qualifying both party's witnesses as experts for the treatment of Crohn's disease. All of the witnesses were qualified to discuss Crohn's disease, their testimony aided the jury in understanding the evidence, and the jury was free to weigh the testimony based upon the particular qualifications of the individual doctor. Accordingly, the trial court did not abuse its discretion.
In their third point of error, the Montgomerys claim that the trial court erred in allowing and condoning the use of the phrase "guilty of medical malpractice" to be stated as law before the jury. During the cross-examination of Dr. Harris by counsel for Dr. Butler, the following exchange occurred:
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