Wal-Mart Stores, Inc. v. Tucker

Decision Date19 June 2003
Docket NumberNo. 02-876.,02-876.
Citation120 S.W.3d 61,353 Ark. 730
PartiesWAL-MART STORES, INC., and Russell White v. Vivian TUCKER, Individually and as Administratrix of the Estate of John Kenneth Tucker, et al.
CourtArkansas Supreme Court

Jones & Hudspeth (Texarkana, Texas), by: Michael F. Jones; and Kutak Rock, LLP (Lincoln, Nebraska), by: Norman M. Krivosha, Lincoln, NE, for appellants.

Law Offices of E. Ben Franks (Texarkana, Texas), by: E. Ben Franks, for appellee.


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 checkup 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 designed to prevent fluid build up in patients with congestive heart failure. On May 15, 1997, John went to a Wal-Mart pharmacy to have the Zaroxolyn prescription filled. Russell White, the pharmacist on duty, misfilled the prescription; instead of Zaroxolyn, John's prescription was filled with Ziac, a beta-blocker.

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 Ark.Code Ann. § 16-114-206). For its first point on appeal, Wal-Mart argues that Vivian Tucker failed to put on evidence that her husband's death was proximately caused by the misfilled prescription. In effect, Wal-Mart's motion for a new trial is an attack on the sufficiency of the evidence supporting the proximate-cause element of the cause of action for medical injury. As such, Wal-Mart's argument challenges the sufficiency of the evidence to support the jury verdict, and has not been properly preserved.

Rule 59 of the Arkansas Rules of Civil Procedure provides eight grounds for a new trial. Rule 59 states in pertinent part:

(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.

Ark. R. Civ P. 59(a) (2003). However, a motion for new trial is not a challenge to the sufficiency of the evidence. Yeager v. Roberts, 288 Ark. 156, 702 S.W.2d 793 (1986). The proper vehicle to contest the sufficiency of the evidence is a directed-verdict motion or a motion for judgment notwithstanding the verdict (JNOV). See Ark. R. Civ. P. 50 (2003).

Rule 50(e) states that "[w]hen there has been a trial by jury, the failure of a party to move for a directed verdict at the conclusion of all the evidence, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict." Ark. R. Civ. P. 50(e) (2003) (emphasis added). The purpose of a motion for directed verdict is to provide a procedure for determining whether the plaintiff has met the burden of establishing a prima facie case. Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990). Moreover, Rule 50(a) requires that a party moving for a directed verdict state specific grounds in order to bring the issue to the trial court's attention. See Ark. R. Civ. P. 50(a) (2003); Ouachita Wilderness Institute, Inc., v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). A trial court is to evaluate the motion for directed verdict by deciding whether the evidence would be sufficient for the case to go to the jury. First United Bank v. Phase II, 347 Ark. 879, 69 S.W.3d 33 (2002).

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, Rule 50 was amended and we stated: "Rule 50 will no longer allow the sufficiency of the evidence to be challenged by a motion for a new trial, only by a motion for a directed verdict and motion for judgment notwithstanding the verdict." In re Amendments to the Rules of Civil Procedure, 279 Ark. 470, 471, 651 S.W.2d 63 (1983); see also Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987) ("[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.").2 In Yeager v. Roberts, 288 Ark. 156, 702 S.W.2d 793 (1986), we enunciated the subtle distinction between a sufficiency challenge under Rule 50 and a motion for new trial under Rule 59. We stated that "[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." Yeager v. Roberts, 288 Ark. at 157, 702 S.W.2d at 794. A motion for a new trial under Rule 59 based on the verdict being clearly contrary to the preponderance of the evidence does not test the sufficiency of the evidence, and is not precluded by Rule 50(e). Yeager v. Roberts, supra; see also Ark. R. Civ. P. 50 Addition to Reporter's Notes, 1983 ...

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