Poff v. Elkins
| Decision Date | 19 November 2014 |
| Docket Number | No. CV–13–924.,CV–13–924. |
| Citation | 449 S.W.3d 315,2014 Ark. App. 663 |
| Parties | Sue POFF, Appellant v. James P. ELKINS, M.D., and James P. Elkins, P.A., Appellees. |
| Court | Arkansas Court of Appeals |
James E. Keever and Ken Swindle, for appellant.
Lisle Rutledge P.A., by: Stephen Lisle, for appellees.
This appeal involves a medical-malpractice case. In January 2009, the appellant, Sue Poff, sought the services of the appellees, James P. Elkins, M.D., and James P. Elkins, P.A., for the treatment of sun-damaged skin on her face, neck, and chest. She claims that the appellees negligently performed a laser skin resurfacing procedure which resulted in third-degree burns to her skin. Her initial suit for compensatory and punitive damages was voluntarily dismissed pursuant to Arkansas Rule of Civil Procedure 41(a). She re-filed her cause of action in February 2012. A jury trial was held in March 2013. At the conclusion of the trial, the jury returned a verdict in favor of the appellees.
Sue Poff appeals the jury verdict. On appeal, she contends that the circuit court erred by: (1) refusing to allow her to conduct meaningful discovery, (2) preventing her from presenting evidence that appellees' surgery center did not have a license, (3) allowing the appellees to introduce evidence of her other cosmetic and elective surgeries, (4) refusing to pre-admit exhibits and prohibiting the use of exhibits and demonstrative aids in opening statements, and (5) granting a directed verdict on her claim for punitive damages. Finding no error, we affirm.
When the appellant filed the present case, the parties stipulated that all previous discovery could be used in the current action. Yet, the appellant continued to conduct discovery. Eventually, the appellees filed a motion for limitation of discovery, and over the objections of the appellant, the circuit court entered an order restricting discovery to matters that had changed or developed since December 7, 2011—the day the first trial was non-suited. The appellant argued that this ruling prohibited her from conducting meaningful discovery (1) by restricting her ability to conduct further discovery regarding whether the appellees had or were required to have a license, (2) by restricting her ability to depose Dr. Elkins as an expert witness, and (3) by not requiring the appellees to supplement discovery. Our review of these issues is limited to whether the circuit court abused its discretion. Grand Valley Ridge, LLC v. Metropolitan Nat'l Bank, 2012 Ark. 121, at 11, 388 S.W.3d 24, 32.
The appellant first argues that the circuit court's ruling restricted her ability to conduct further discovery on the issue of the appellees' licensing status. She maintains that the court's ruling limited her right to a non-suit pursuant to Arkansas Rule of Civil Procedure 41(a) because it limited her discovery to that which was completed in the previous case. In support of this argument, she cites Arkansas Rule of Civil Procedure 36(b) which provides that “an admission made in a case is for the purpose of the pending action only.” We disagree with the appellant and do not find that the circuit court unduly limited her discovery. The parties stipulated to the use of discovery from the previous case. Moreover, an order limiting discovery was not entered until an additional eight interrogatories, requests for production, and requests for admission were made. We find that the circuit court did not abuse its discretion in limiting discovery.
Likewise, we easily dispose of the appellant's argument that the circuit court abused its discretion by not allowing the appellant to propound requests for admissions on the issue of the appellees' license. The circuit court ordered the appellees to answer these requests for admission, and the appellees answered them. This issue is moot.
Next, the appellant claims that when she deposed Dr. Elkins in the previously non-suited action, she did so only as a fact witness. As a result, she argues that the circuit court erred in not allowing her to take a second deposition of him on his expert testimony in the re-filed cause of action. We disagree. There were no court-imposed restrictions on the appellant when she took Dr. Elkins's deposition. Prior to the deposition, the appellees informed her that Dr. Elkins was expected to testify as an expert. During the deposition, Dr. Elkins was thoroughly questioned and no limitations were in place. If the appellant did not elicit answers to questions concerning his expert testimony, it was at her own choosing. Additionally, the appellant fails to demonstrate any prejudice to her. Her attorney only identified one question he wished to ask Dr. Elkins, and it pertained to the appellant's sedation level. The appellant had access to her medical records that contained this information at the time of the deposition. Additionally, Dr. Elkins did not offer any opinions regarding sedation level at trial. The circuit court did not abuse its discretion in limiting the appellant to one deposition of Dr. Elkins, but even if it did, it amounted to harmless error.
Finally, the appellant argues that the appellees failed to adequately supplement Dr. Elkins's expected expert testimony, and she filed a motion to compel on this issue. The appellees argued in their response that they had supplemented the interrogatory and that the appellant was using this as a means to try to obtain discovery on the issue of sedation which had been previously restricted by the court. The circuit court denied the motion to compel. The circuit court did not abuse its discretion in denying this request for supplementation. It had previously ruled that the appellant could not conduct additional discovery on the issue of sedation. This came after lengthy discovery conducted by the appellant. The goal of discovery is to permit a litigant to obtain whatever information he or she may need to prepare adequately for issues that may develop without imposing an onerous burden on his adversary. Id. at 12, 388 S.W.3d at 32. The trial court has a duty in lengthy and complex cases, where the possibility of abuse is present, to protect parties and witnesses from annoyance, excessive expense, and harassment. Rush v. Wallace, 23 Ark.App. 61, 66, 742 S.W.2d 952, 954 (1988). Because the trial court has a duty to protect parties from annoyance, excessive expense, and harassment, and because the appellant had ample opportunities to adequately prepare for trial and obtain this information, we find no abuse of discretion.
Throughout the course of this proceeding, the parties engaged in an evidentiary dispute over the issue of whether the appellees' surgical center was required to operate under a license from the Arkansas Department of Health. Both parties agree that the appellee surgical center did not operate under a license. The appellant contends that the Arkansas Department of Health required the appellee center to be licensed due to the sedation levels used during the procedure performed on the appellant. The appellant further contends that Dr. Elkins was under a restriction by the Arkansas Medical Board to perform procedures only within a licensed facility, and that, since the appellees' center was not a licensed facility, Dr. Elkins's performance of this procedure upon the appellant was in violation of this restriction from the Medical Board. The appellees contend that no restriction existed from the Arkansas Medical Board and that the surgical center was not required to be licensed by the Arkansas Department of Health.
The appellees filed a motion in limine to exclude any evidence on the issue of its licensure and sanction. The appellant responded that the evidence was necessary and relevant to show that she did not give her informed consent for the procedure. However, the circuit court granted the appellees' motion in limine and excluded the evidence.
Trial courts are accorded wide discretion in evidentiary rulings, and those rulings should not be reversed absent a manifest abuse of discretion. Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (1999) (citing Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999) ). Nor should a trial court's ruling on evidentiary matters be reversed absent a showing of prejudice. Id.
On the issue of a purported sanction by the Arkansas Medical Board, the evidence was in dispute. The appellant intended to produce evidence that Dr. Elkins had been sanctioned by the Arkansas Medical Board in 2005 and that the sanction required him to perform all procedures in a hospital or surgery center licensed by the Arkansas Health Department. The appellees did not dispute these facts but assert that the restriction was lifted in 2006 when the Arkansas Medical Board released Dr. Elkins from any further monitoring. The trial court reviewed the orders and determined that the restriction ended in 2006. We do not find this to be a manifest abuse of discretion.
The issue of necessity of licensure and the level of sedation is also in dispute. The appellant argues that the level of sedation used required that the procedure be performed in a licensed facility and that had she known that the appellees' surgical center was not licensed, she would not have consented to the procedure. A material...
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