Robson v. Tinnin

• Court: Arkansas Supreme Court
• Writing for the Court: CORBIN; ROAF
• Citation: Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (Ark. 1995)
• Decision Date: 04 December 1995
• Docket Number: No. 95-580,95-580
• Parties: Joe ROBSON, Appellant, v. Robert P. TINNIN, D.D.S., Individually, and d/b/a Family Dental Center, Appellee,

Page 246

911 S.W.2d 246

322 Ark. 605

Joe ROBSON, Appellant, v. Robert P. TINNIN, D.D.S., Individually, and d/b/a Family Dental Center, Appellee,

No. 95-580.

Supreme Court of Arkansas.

Dec. 4, 1995.

Sam Sexton, III, Fort Smith, for appellant.

Constance G. Clark, Fayetteville, for appellee.

CORBIN, Justice.

Appellant, Joe Robson, appeals the order of the Washington County Circuit Court granting summary judgment to appellee, Robert P. Tinnin, D.D.S., individually and d/b/a Family Dental Center, on appellant's claim for dental malpractice. Jurisdiction of this appeal was properly certified to this court as it involves a question about the law of torts. Ark.Sup.Ct.R. 1-2(a)(16). Appellant raises four points for reversal of the summary judgment, none of which has merit. Therefore, we affirm.

Appellant filed a complaint alleging he had contracted with appellee in Fayetteville, Arkansas, for appellee to repair teeth on appellant's lower jaw by means of an implant. In the complaint, appellant did not challenge the installation of the implant. Rather, he claimed appellee failed to carefully "change" the implant and failed to warn him of the risks involved. Significantly, appellant did not allege that appellee was negligent for failing to treat a fractured bicuspid, although he did allege that appellee's negligence caused him to lose healthy teeth.

After appellant answered appellee's interrogatories, appellee moved for summary judgment on the basis that appellant had not offered proof of essential elements of his case, that being expert testimony to establish the standard of care and breach thereof. Relying on Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991), the trial court agreed with appellee that expert testimony was required to establish the standard of care and appellee's breach thereof after appellee had made a prima facie case that the standard of care had been met, and further agreed that appellant had failed to produce any expert testimony on those two elements of his malpractice claim. The trial court therefore granted appellee's motion for summary judgment.

Appellant's first point for reversal is that appellee did not meet his burden of showing he was entitled to summary judgment because the affidavits presented in support of the motion were conclusory and therefore insufficient to withstand summary judgment. It is well settled that affidavits that are conclusory rather than factual are insufficient to support a motion for summary judgment. Swindle v. Lumbermens Mut. Casualty Co., 315 Ark. 415, 869 S.W.2d 681 (1993).

According to appellee's motion, the two dental experts appellant identified in his answers to interrogatories were Dr. Henry Matthews, D.D.S., of Fayetteville, Arkansas, and Dr. Joe Massad, D.D.S., of Tulsa, Oklahoma. In his motion, appellee pointed out that, according to appellant's answers to interrogatories, Dr. Massad had not yet presented appellant with any written reports and had not yet formed an opinion about the case. Attached to appellee's motion were an affidavit from Dr. Matthews denying that he had ever agreed to testify as an expert in this case on the issues of the applicable standard of care of dental treatment in Fayetteville and appellant's alleged breach thereof, and appellee's own affidavit to the effect that he had not been negligent in treating appellant.

Appellant's first argument is without merit. Appellee concedes that his own affidavit is largely conclusory. However, Dr. Matthews's affidavit contains statements of fact that he has not been asked to testify as to the applicable standard of care nor as to the breach thereof in this case. Dr. Matthews further averred that he found no indication that appellee's treatment of appellant fell below the applicable standard of care. The only other dental expert identified by appellant, Dr. Massad, had not yet formed any opinions about this case. Thus, the foregoing factual statements in Dr. Matthews's affidavit were sufficient to make a prima facie case and support appellee's motion for summary judgment.

For his second point for reversal, appellant contends the trial court erred in ruling that his affidavit, which was attached to his response to appellee's motion, contained hearsay. Appellant stated in his affidavit that he suffered a fractured bicuspid while under appellee's treatment, that appellee took no action to repair the fractured tooth, and that Dr. Matthews informed him about the appropriate treatment for the fractured bicuspid, which Dr. Matthews informed him, appellee should have followed. The trial court did not consider appellant's affidavit, ruling that it contained hearsay and was therefore in violation of ARCP Rule 56(e), which requires that affidavits set forth facts admissible in evidence. Appellant argues that Dr. Matthews's reported statements pertaining to a fractured bicuspid are not hearsay and are admissible as prior inconsistent statements under A.R.E. Rule 801(d)(1). Appellant argues further that when his affidavit is considered, he has demonstrated that issues of material fact, namely the applicable standard of care and appellee's breach, are in dispute.

Appellant does not cite any authority or offer any convincing argument that Rule 801(d)(1) is applicable to affidavits presented in summary judgment proceedings. Rule 801(d)(1) is expressly applicable to declarants who testify at trial or hearing and are subject to cross-examination. In any event, we need not decide the applicability of Rule 801(d)(1) to this summary judgment case because, as the trial court recognized, even when appellant's affidavit is considered, it does not demonstrate a disputed issue of material fact. Quite simply, a statement that a dentist should have given a particular treatment or taken a particular course of action is not the equivalent of stating the applicable standard of care and breach thereof. Moreover, appellant's affidavit is completely silent regarding the standard of care for the act of negligence alleged in his complaint--the failure to adequately effect the change of an implant for his lower jaw and the failure to warn of the risks involved--and the complaint is completely silent on the fractured bicuspid discussed by Dr. Matthews.

Appellant's third point for reversal is that the affidavit of Dr. Massad, which was attached to appellant's response to appellee's motion, was sufficient to withstand the motion for summary judgment. Included in this argument is a "reminder" to this court that appellant's claim was for appellee's omissions in treating the fractured bicuspid. Again, we emphasize that the words "fractured bicuspid" do not appear in appellant's complaint. It may well be that a fractured bicuspid was the reason for the change of the implant. However, there is nothing in this record that remotely suggests that relationship. Because Dr. Massad's affidavit...