Tamara Savage v. Sms Trucking, Inc.

Cite as 2024 Ark. App. 452
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-23-225

Opinion Delivered September 25, 2024
TAMARA SAVAGE
APPELLANT APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
V. [NO. 35CV-19-275]

SMS TRUCKING, INC. HONORABLE ALEX V. GUYNN,
APPELLEE JUDGE

AFFIRMED IN PART;
REVERSED AND REMANDED
IN PART

STEPHANIE POTTER BARRETT, Judge

Appellant Tamara Savage appeals the grant of summary judgment in favor of appellee,

SMS Trucking, Inc. On appeal, appellant asserts that the circuit court erred in (1) granting

summary judgment based on the appellant’s failure to identify an expert witness, (2) denying

the appellant’s claim for loss of earning capacity, (3) its evidentiary ruling that punitive

damages were not admissible, and (4) denying appellant’s motion for leave to supplement

response to motion for summary judgment. We affirm in part and reverse and remand in

part.

I. Facts

On May 2, 2019, Savage, an employee of the Mondi Bags facility in Pine Bluff, filed

a personal injury lawsuit alleging that on February 2, 2018, she was operating a forklift at the
facility when she suffered injuries as the result of the negligence of James Kirkland, an

employee of SMS. Three safety restraints were used to keep the truck driver from moving his

truck to prevent injury to the forklift operator. Savage alleges Kirkland removed the two

remaining safety restraints himself without her permission or knowledge. Savage alleged she

explained to Kirkland about the locks and specifically cautioned him not to remove the

restraints and or locks. Savage stated in her answers to interrogatories that she was almost

done unloading and was coming back from the secondary fiber and that she saw Kirkland

was “messing” with the control box for the dock board. He stated to her that he was trying

to raise the dock plate. She alleges she told him not to mess with the control box. Savage

said she told Kirkland that was her job, and once she finished, she would unlock everything

and remove the chocks from his tires. When Savage returned, she did not see Kirkland, so

she backed her forklift up on the dock plate to push paper for the last time. Savage alleged

that it was during this final push with her forklift that Kirkland pulled the trailer forward,

causing her forklift to fall out of the truck, causing her injuries. SMS has denied liability for

the accident by its driver, James Kirkland.

After being extracted from the forklift, Savage immediately sought medical treatment

at Jefferson Regional Medical Center and was treated by Dr. Lester Alexander. Savage was

subsequently seen by doctors at Arkansas Specialty Orthopedics on April 4, 2018,

complaining of pain to her left shoulder and neck area. An MRI was conducted on August

13, 2018, at Arkansas Specialty Orthopedics. SMS was subsequently provided with the

2
medical records and medical expenses from the emergency-room visit and from her

examinations at Arkansas Specialty Orthopedics.

In her complaint, Savage alleges Kirkland removed some of the safety restraints

himself after Debbie Reyes had removed the glad hand lock. Without notice to her, Kirkland

pulled away from the dock, causing her and the forklift to fall off out of the truck to the

concrete floor of the dock. Savage alleges that Kirkland was acting within the scope of his

actual or apparent authority granted to him by SMS and that SMS was responsible for his

acts in accordance with the doctrine of respondeat superior. Savage alleged that SMS’s

negligence was the result of Kirkland’s failure to adhere to known rules, industry practices,

and protocols that would have protected her; failing to ensure that the unloading/cleaning

process was complete before moving the truck; failing to warn her before removing the safety

restraints; and failing to exercise ordinary care under the circumstances. Savage alleges that

Kirkland breached the duty of ordinary care by moving the truck without notification to her,

and as a result of this breach in duty, she suffered injuries to her left side, mental and

emotional distress, and pain, and she incurred medical bills now and will continue to incur

medical bills in the future. Kirkland denies that he removed the safety locks as alleged by

Savage. Savage alleges that she’s permanently impaired, had lost wages, and lost earning

capacity and should be awarded punitive damages.

On September 30, 2021, Savage’s attorneys submitted plaintiff’s witness lists. The

witness list included nine witnesses, including “Lester Alexander, MD.” The witness list did

not differentiate whether the nine witnesses were fact witnesses or expert witnesses. On

3
October 21, SMS filed a motion for scheduling order. In the motion, SMS alleged that it

had issued written discovery over two years ago and that it had asked Savage to supplement

her prior discovery responses. Included in this motion was the request by SMS for Savage

“to disclose all of their witnesses, expert or lay, that they intend to call at trial no later than

Friday, October 15, 2021.” Savage’s attorneys opposed the motion for scheduling order. A

scheduling order was subsequently entered on October 13, 2021, which included that “[a]ll

discovery should be completed by October 21, 2021” and that all witnesses “including expert

or lay witnesses . . . be exchanged [by October 29, 2021.]

On October 18, SMS moved to compel discovery. SMS argued that it had submitted

interrogatories to Savage on June 17, 2019, and that two years had passed, and Savage had

not supplemented her responses. Specifically, SMS noted interrogatory No. 11 requested

the identity of any expert witness she intended to call at trial and request for production of

documents No. 3 requested the CV of any said expert witness. Savage responded in 2019

that discovery had just begun, and she did not know whether she would call an expert witness

but reserved the right to supplement her response.

The motion to compel stated that SMS attorneys had written the obligatory “good

faith” letter to Savage’s attorneys in compliance with Arkansas Rule of Civil Procedure 37.

The motion also provided Savage’s response to the good-faith letter. In pertinent part,

Savage’s attorney stated: “Lester Alexander, MD, is a physician that will testify about my

client’s treatment and any current, or future, need for medical care, consistent with the

4
medical records. If there is an impairment, I expect Dr. Alexander will testify on this issue

as well.”

On October 28, 2021, SMS filed a motion in limine wherein it argued, inter alia, that

“[s]pecifically, plaintiff never responded to defendant’s interrogatory 11 or related requests

for production 3, 4 or 5 which deal specifically with expert witnesses . . . specifically to

supplement them with any medical expert witnesses she intends to call – has not identified

any expert medical witness in any way. . . .” SMS asked that Savage be “forbidden to offer

any expert medical testimony regarding the causal connection between the accident which

occurred on 2/2/2028, and any injuries, or any treatments which she obtained after that”;

and further, that Savage be forbidden to offer “expert testimony to establish the existence of

an impairment rating . . .” and forbidden to offer “expert testimony of any kind to connect

the accident . . . to any claimed past or future loss of income, any loss of earning capacity or

any future medical needs or expenses.” In response to the motion in limine, Savage stated

that “Dr. Alexander is not an expert by means of Rule 26. . . . Dr. Alexander’s testimony is

that of a treating physician . . . .”

A few days later, Savage moved to continue the three-day jury trial, alleging her

attorney’s illness. Attorneys for SMS did not object to the motion for continuance, but of

importance herein, they did object to the change of any of the discovery deadlines imposed

in the existing scheduling order. On November 9, the motion for continuance was granted,

and the court scheduled the new jury trial for August 22, 2022, but the court maintained

the discovery deadlines set forth in its original order as requested by SMS.

5
The case proceeded. On May 19, 2022, SMS filed the present motion for summary

judgment. Savage moved for a thirty-day extension to respond to the motion for summary

judgment, and on June 9, the motion to extend was granted. On June 22, Savage’s attorney

filed a motion to withdraw. On June 27, before the motion to withdraw was granted,

Savage’s attorney filed a pleading styled “Memorandum Response to Motion to Reconsider.”

However, the substance of the appellant’s pleading was a response to SMS’s motion for

summary judgment. On July 5, 2022, the motion to withdraw was granted. At this point,

SMS had filed a motion for summary judgment, and Savage had filed a response. However,

the summary-judgment pleadings continued.

On July 11, SMS filed a reply to Savage’s response to the motion for summary

judgment. And on August 19, a new attorney entered her appearance for Savage. The new

attorney requested a hearing on the pending and briefed motion for summary judgment.

The court ordered a hearing on the motion for summary judgment to be held on December

14.

On November 29, Savage’s attorney filed a motion to supplement its responses to the

motion for summary judgment. The new attorney argued that “plaintiff has now been able

to locate and retain Dr. Shahryar Ahmadi, an orthopedic surgeon, who treated her for her

injuries arising from the accident that is the subject matter of this litigation” and that Dr.

Ahmadi had prepared an expert report in the matter. As one would anticipate, SMS filed

an objection to the request, citing the previous scheduling order that governed discovery

deadlines.

6
On December 14, the hearing on SMS’s motion for summary judgment was held. At

the hearing, attorneys for SMS and Savage argued in support of their respective positions.

The court stated in pertinent part that “July was the time to have—before July to have an

expert.” The court then concluded without any additional comment or explanation: “All

right. The court heard the arguments of both parties. The court is going to grant the

defense’s motion for summary judgment.” On December 20, the court entered an order

granting defendant’s motion for summary judgment, finding that

the court being well and fully advised of the appliable law and facts, and the reasons
set forth in the motion, finds that the Defendant’s Motion should be and is hereby,
GRANTED. IT IS THEREFORE ORDERED and ADJUDGED that all of the
plaintiff’s claims against SMS Trucking, Inc., should be and hereby are dismissed with
prejudice.

II. Arguments on Appeal

Savage argues on appeal that (1) the circuit court erred in granting summary judgment

because she did not identify an expert witness; (1)_the circuit court erred in granting

summary judgment on her claim for loss of earning capacity; (2) the circuit court erred in

granting summary judgment on the issue of her claim for punitive damages; and (3) the

circuit court abused its discretion by denying Savage’s motion to supplement her response

to the motion for summary judgment.

We are at somewhat of a disadvantage in this appeal because the circuit court did not

explain why it granted summary judgment other than to respond to Savage’s request at the

hearing for additional time to identify an expert witness, stating, “July was the time to have—

before July to have an expert.” The circuit court did not explain why it granted summary

7
judgment on appellant’s claim for loss of earning capacity or for punitive damages or why

“all of the plaintiff’s claims against SMS Trucking, Inc., should be and hereby are dismissed

with prejudice.” To that end, to understand the import of Savage’s arguments on appeal,

we are forced to review all the pleadings pertinent to the motion for summary judgment filed

by SMS.

To begin the analysis, we first note that SMS did not file a motion for summary

judgment on the issue that SMS or its employee driver, Kirkland, was not negligent. Perhaps,

there are genuine issues of material fact on the issue of negligence. And we note that SMS

did not request that the case be dismissed. Rather, SMS argued in its motion for summary

judgment three specific elements of damages that Savage could not prove without expert-

witness testimony, and because Savage had not identified an expert witness, those three

specific elements of damages should be dismissed on summary judgment.

First, SMS argued that because Savage did not identify an expert witness, Savage could

not prove that the medical treatment she incurred shortly after the accident and the

orthopedic medical treatment she incurred approximately a year later were caused or

necessitated by the accident. SMS essentially argued that without expert testimony, Savage

could not prove that her medical treatment was caused by the accident and that those claims

for damages should be dismissed on summary judgment. Second, SMS argued that because

Savage did not identify an expert witness, Savage could not prove her claim for loss of earning

capacity in the future. And third, SMS claimed that Savage had not met proof with proof

and that Savage’s claim for punitive damages should be dismissed by summary judgment.

8
Rule 56 of the Arkansas Rules of Civil Procedure governs disposition of summary-

judgment cases. The object of summary-judgment proceedings is not to try the issues but to

determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion

should be denied. Ark. R. Civ. P. 56; Rowland v. Gastroenterology Assocs., P.A., 280 Ark. 278,

657 S.W.2d 536 (1983). Therefore, the first consideration in reviewing a motion for

summary judgment is whether the moving party established a prima facie showing that he

was entitled to summary judgment. The standard of review for summary judgment has often

been stated: “In these cases, we need only decide if the granting of summary judgment was

appropriate based on whether the evidentiary items presented by the moving party in support

of the motion left a material question of fact unanswered.” Mashburn v. Meeker Sharkey Fin.

Grp., Inc., 339 Ark. 411, 414, 5 S.W.3d 469, 471 (1999) (citing Nixon v. H&C Elec. Co., 307

Ark. 154, 818 S.W.2d 251 (1991)). The burden of sustaining a motion for summary

judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Ctr., Inc.,

301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in the light most

favorable to the party resisting the motion, and any doubts and inferences must be resolved

against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d

222 (1992); Harvison v. Charles E. Davis & Assocs., Inc., 310 Ark. 104, 835 S.W.2d 284 (1992);

Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991).

A. Failing to Designate an Expert Witness

Savage argues that summary judgment should not have been granted on the issue of

medical causation for failing to designate an expert witness. Initially, we note that there are

9
two different medical treatments at issue in this motion. First, Savage received medical

treatment immediately after the accident. Second, approximately a year later, Savage

received medical treatment from an orthopedical surgeon. Our analysis is different for each

of these claims for medical treatment as explained below.

Summary judgment may be granted only if the moving party has shown by evidentiary

items that there is not a material question unanswered. Mashburn, 339 Ark. at 414, 5 S.W.3d

at 471. Here, the trial court entered a summary judgment that dismissed Savage’s personal-

injury claims in toto rather than identifying which of the two distinct times of treatment

required expert testimony concerning causation. SMS relies on the Federal Employer

Liability Act cases of Pryor v. Union Pac. R.R. Co., 2020 WL 5834248 (E.D. Ark. Sept. 30,

2020), and Crago v. Union Pac. R.R. Co., 2010 WL 147900 (D. Neb. Jan. 11, 2010), which

require that an injured party must have an expert witness to prove causation. We disagree

that these FELA cases are dispositive. Pryor was a toxic-tort case where the allegation was that

Pryor’s bladder cancer was caused by working around corrosive chemicals. This was beyond

the knowledge of the average juror, so expert testimony was required to establish causation.

Likewise, Crago was a cumulative-injury case, and an expert was necessary to show how

cumulative injuries could result in his damages. Therefore, we find these FELA cases

unpersuasive on this issue.

First, we address the medical treatment Savage received on the day of the accident.

Arkansas courts have consistently held that proximate cause is that which, in a natural and

continuous sequence unbroken by any efficient intervening cause, produces the injury, and

10
without which, the result would not have occurred. When there is evidence to establish a

causal connection between the negligence of the defendant and the damages, it is proper for

the case to go the jury. Chamber v. Stern, 347 Ark. 395, 64 S.W.3d 737 (2002). The testimony

of the injured party alone, in some cases, can provide a sufficient foundation for the

introduction of medical expenses incurred. Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700

(1984). In Bell, our supreme court gave the following example:

[I]f a litigant suffered a specific injury in an accident and was immediately taken to a
hospital emergency room for treatment of only that specific injury the injured party's
testimony would be sufficient to establish the necessity of the medical expense as a
result of the accident. However, expert testimony would normally be required to
prove the necessity of the expense when, as here, expenses for hospital tests were
incurred many months after the accident, none of the physicians in attendance
immediately after the accident referred the litigant either to the admitting doctor or
to the hospital, and the expenses on their face do not appear to be related to the
accident.

284 Ark. at 199, 680 S.W.2d 702–03.

Under the supreme court’s reasoning in Bell, Savage was competent to testify to the

issue of the necessity of the medical expenses that she incurred shortly after the accident.

“Necessary” means causally related to the tortfeasor’s negligence. Id. Arkansas Code

Annotated section 16-46-107(a) (Repl. 1999) provides that if a patient shows that she

received medical bills from a provider of medical services and that such expenses were

incurred in connection with the treatment of the injury that is the subject of the litigation,

then she is considered a competent witness to identify the medical bills. Further, testimony

from an expert witness in this situation regarding the reasonableness and necessity of medical

expenses is not required. Ark. Code Ann. § 16-46-107(b). Williams v. Walker, 77 Ark. App.

11
95, 72 S.W.3d 131 (2002). As to the issue of the necessity of an expert witness to establish

causation to the medical treatments by Dr. Alexander and Arkansas Orthopedics shortly

after the accident, we find that this issue was not appropriate for summary judgment. There

are issues of material fact that remain unanswered as to the nature and extent of Savage’s

injuries and medical expenses. Savage was competent to testify to her medical expenses

incurred shortly after the accident that the summary judgment quashed under the mistaken

belief that an expert witness was necessary to establish causation. The circuit court failed to

differentiate between the necessary medical expenses incurred immediately after the accident

with Dr. Alexander and Arkansas Orthopedics and from those incurred a year later. We

have held that matters of causation are questions of fact for the jury to decide. See, e.g., First

Com. Tr. Co. v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996); see also Catlett v. Stewart, 304

Ark. 637, 804 S.W.2d 699 (1991). The same holds true for matters of credibility. Diamond

State Towing Co. v. Cash, 324 Ark. 226, 919 S.W.2d 510 (1996). The burden of sustaining a

motion for summary judgment is always the responsibility of the moving party. Cordes, 301

Ark. 26, 781 S.W.2d 31. Here, Dr. Alexander was the treating physician immediately after

the accident and was listed as a fact witness. As such, Dr. Alexander can testify to the

reasonableness and causation of the medical treatment he provided. We find that the

combined testimony of Savage and Dr. Alexander create a material issue of fact that remains

unanswered as to Savage’s recovery of compensatory damages for the injury itself and for any

medical expenses provided by Dr. Alexander for treatment. We reverse and remand

12
summary judgment on the issues of damages for injuries sustained in the accident and the

initial medical expenses for the treatment of the injury.

As to the subsequent surgeries on her left shoulder, Bell held expert testimony would

normally be required to prove the necessity of the expense when the treatment was many

months after the accident. Here, Savage’s subsequent surgeries were over a year past the date

of the accident, and there was no showing that she had been referred to Dr. Ahmadi by the

treating physician, Dr. Alexander, or to UAMS for continued treatment. In essence, because

Savage failed to identify an expert witness, there is no competent testimony that this medical

treatment incurred over a year after the accident was necessary or related to the accident.

Summary judgment may be granted only if the moving party has shown by evidentiary items

that there is not a material question unanswered. Mashburn, 339 Ark. at 414, 5 S.W.3d at

471. Savage’s testimony, standing alone, cannot establish that the necessity of the

subsequent treatment was causally related to her fall. Dollar Gen. Corp. v. Elder, 2020 Ark.

208, 600 S.W.3d 597. While there was some suggestion that the subsequent surgeries were

related to the accident, as shown by the MRI taken shortly after the accident, Savage has the

burden to provide competent evidence that the surgeries were related to her injury. To do

so, in this situation, she must have expert testimony to show causation and that the three

surgeries and corresponding medical expenses were necessary. Id. Because Savage did not

meet proof with proof on this essential element, summary judgment was properly granted

on Savage’s claims. Cross v. W. Waste Indus., 2015 Ark. App. 476, 469 S.W.3d 820 (affirming

13
summary judgment for the defendants on the basis of lack of causation evidence). We affirm

partial summary judgment on this issue.

B. Loss of Earning Capacity

Savage argues that the circuit court erred in granting a summary judgment on the

issue of loss of earning capacity. Specifically, Savage has alleged in her responses to SMS’s

interrogatories that for five years since the accident, the left side of her body, left arm, left

shoulder, left leg, left hip, and left side of her head continue to cause pain, and she states

that she has limited movement in her arm, walking for long periods of time is painful, and

sitting too long is painful, and she has been unable to work.

Arkansas Model Jury Instruction–Civil 2207 provides that the measure of damages

for “Loss of Earning Capacity is ‘the present value of any loss of ability to earn in the future.’”

Damages for loss of earning capacity may be recovered only upon proof that an injury is

permanent. Wheeler v. Bennett, 312 Ark. 411, 849 S.W.2d 952 (1993). A permanent injury

is one that deprives the plaintiff of her right to live her life in comfort and ease without

added inconvenience or diminution of physical vigor. Id. The Arkansas Supreme Court has

stated that permanency must be proved with reasonable certainty, e.g., Welter v. Curry, 260

Ark. 287, 539 S.W.2d 264 (1976), but that the seriousness of the injury itself may establish

permanency, e.g., Bailey v. Bradford, 244 Ark. 8, 423 S.W.2d 565 (1968); Duckworth v. Stephens,

182 Ark. 161, 30 S.W.2d 840 (1930). The jury may rely on lay testimony without expert

corroboration in finding permanency. E. Tex. Motor Freight Lines, Inc. v. Freeman, 289 Ark.

539, 545, 713 S.W.2d 456, 460 (1986). Although whether a permanent injury exists is not

14
to be left up to speculation and conjecture on the part of the jury or court, proof of this

element does not require the same specificity or detail as does proof of loss of future wages.

Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983). This is because a jury can observe the

appearance of the plaintiff, her age, and the nature of the injuries that will impair her

capacity to earn. Id. Proof of specific pecuniary loss is not indispensable to recovery for this

element. Id. It is to be determined by the application of the common knowledge and

experience of the jurors to the facts and circumstances of the case. Coleman v. Cathey, 263

Ark. 450, 565 S.W.2d 426 (1978). Moreover, lay testimony without expert corroboration is

sufficient to show permanent injury. Viewing that testimony in a light most favorable to

Savage, a jury could conclude that consequences of an injury that continued over five years

will occur in the future. Bailey, 244 Ark. 8, 423 S.W.2d 565.

SMS argued but did not introduce any evidence, expert or otherwise, to show that

Savage did not have permanent injuries and loss of earning capacity. SMS relies on Cates,

supra, for the proposition that expert testimony is required to prove loss of earning capacity.

SMS’s reliance on Cates is misplaced. Initially, we observe that Cates discusses loss of future

wages and not loss of earning capacity. Those are separate elements of damages. Further, in

Cates, although the supreme court reversed an award of damages for loss of earnings, the

judgment was reversed because neither the plaintiff nor his physicians testified that Cates

would suffer a loss of earnings in the future, and the supreme court held that the award was,

therefore, speculative.

15
Here, Savage has stated in her verified responses to SMS’s interrogatories that for five

years since the accident, the left side of her body, left arm, left shoulder, left leg, left hip, and

left side of her head continue to cause pain, and she states that she has limited movement

in her arm, walking for long periods of time is painful, and sitting too long is painful, and

she has been unable to work. As a result, the burden of sustaining a motion for summary

judgment on the issue of permanent injury and loss of earning capacity was not met, and

summary judgment was not appropriate since issues of fact remain to be determined. We

reverse and remand the summary judgment on the issue of loss of earning capacity.

C. Punitive Damages

Savage argues that the circuit court erred in granting summary judgment on the issue

of punitive damages. The pleadings, depositions, and answers to interrogatories showed that

Savage noticed Kirkland was attempting to remove the dock restraint by attaching the trailer

to the dock before Savage was through unloading the trailer. Savage said she saw Kirkland

“messing” with the control box on the dock restraint and told him to leave it alone and that

she would unlock it when she was finished. She also told him that he could not leave until

she had him sign the documents verifying the load had been removed. Debbie Reyes,

Savage’s coworker, testified she unlocked the glad safety lock with Savage’s permission. Reyes

testified in her deposition that she also told Kirkland that he could not leave until Savage

was through unloading and he had been given the unloading documents. She denied that

she removed any of the other restraints. Kirkland denied in his deposition that he had

removed any of the safety locks. The undisputed testimony shows that his truck had been

16
released from the docking restraint and that the chocks on his tires had also been removed,

allowing him to pull away from the dock, causing the accident.

In order to warrant a submission of the question of punitive damages, there must be

an element of willfulness or reckless conduct. The Arkansas Supreme Court has defined

wantonness and conscious indifference to the consequences:

Wantonness is essentially an attitude of mind and imparts to an act of
misconduct a tortuous character, such conduct as manifests a “disposition of
perversity.” Such a disposition or mental state is shown by a person, when,
notwithstanding his conscious and timely knowledge of an approach to an unusual
danger and of common probability of injury to others, he proceeds into the presence
of danger, with indifference to consequences and with absence of all care. . . . It is
not necessary to prove that the defendant deliberately intended to injure the plaintiff.
It is enough if it is shown that, indifferent to consequences, the defendant
intentionally acted in such a way that the natural and probable consequence of his
act was injury to the plaintiff.

Nat’l By-Products, Inc. v. Searcy House Moving Co., Inc., 292 Ark. 491, 493–94, 731 S.W.2d

194, 195–96 (1987) (quoting Ellis v. Ferguson, 238 Ark. 776, 778–79, 385 S.W.2d 154, 155

(1964)). On appeal, we view the evidence in the light most favorable to the party against

whom the motion was filed, resolving all doubts and inferences against the moving party.

Akers v. Butler, 2015 Ark. App. 650, 476 S.W.3d 183. The burden of sustaining a motion

for summary judgment is always the responsibility of the moving party. Flentje v. First Nat’l

Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). With this standard in mind, we turn

to the evidence presented by the parties in their depositions and other documents filed in

connection with the summary-judgment motion. Id. The standard is whether the evidence

is sufficient to raise a factual issue, not whether the evidence is sufficient to compel a

17
conclusion. Wagner v. Gen. Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (2007). When there

are genuine questions of material fact with regard to a party’s intent, summary judgment is

improper. Dodson v. Allstate Ins. Co., 365 Ark. 458, 463, 231 S.W.3d 711, 715 (2006).

Moreover, summary judgment is not proper where it is necessary to weigh the credibility of

statements to resolve an issue. Wade v. Bartley, 2020 Ark. App. 136, 596 S.W.3d 555 (citing

Adams v. Wolf, 73 Ark. App. 347, 353, 43 S.W.3d 757, 762 (2001)). Kirkland denied that

he removed the safety restraints as alleged by Savage. Here, Savage alleges the following facts:

Kirkland was told that he was not to leave until his loading documents had been signed by

him; Savage told him specifically told not to disengage the safety locks when she saw him

“messing” with the control box on the dock restraint; Kirkland failed to check the trailer to

see if Savage was clear of his trailer; and Kirkland moved his truck away from the dock and

failed to remove the dock plate, which was still attached to the truck when the accident

occurred. Reyes also testified she told him he was not free to leave until Savage had him sign

the paperwork and that she removed the glad hand lock but not the other two locks.

Kirkland denied that he removed the safety restraints. Depending on the credibility as

determined by the jury, the facts could support the allegation that Kirkland acted with a

wanton and conscious disregard for Savage’s safety by his reckless conduct of removing the

safety restraints and attempting to drive away from the dock while Savage was still in the

trailer. Thus, a genuine issue of fact remains as to Kirkland’s intent by moving his truck

without following the safety protocols in place to prevent injury and thereby causing the

injury to Savage. We reverse and remand the summary judgment as to punitive damages.

18
D. Motion to Supplement Record

Savage argues that the circuit court improperly denied her motion to supplement her

response to SMS’s motion for summary judgment and that this was an abuse of discretion

by the circuit court. An abuse of discretion is a high threshold that does not simply require

error in the court’s decision but requires that the circuit court act improvidently,

thoughtlessly, or without due consideration. As noted above, the motion for summary

judgment was filed by SMS on May 19, 2022. Six months later on the eve of the hearing,

on November 29, 2022, Savage filed a motion to supplement the record with the identity of

a new expert medical witness. Savage first identified her witnesses on September 30, 2021.

She did not identify any expert witnesses. For the next year, SMS attempted in vain to obtain

the identity of an expert witness. Then, on the eve of the hearing, Savage moved to supply

the name of a new expert witness.

Savage sought leave, claiming she has been “able to locate and retain Dr. Shahryar

Ahmadi, an orthopedic surgeon who treated Savage for injuries arising from the accident”

and therefore should be permitted to untimely respond to SMS’s motion for summary

judgment. Savage divulged she had retained Dr. Ahmadi one week prior to the trial. In the

motion for leave to supplement, Savage also sought permission from the circuit court to

conduct additional discovery. The disclosure of Dr. Ahmadi was significantly past the date

allowed by the circuit court’s scheduling order. Savage bears the burden of showing that the

circuit court’s denial of a continuance for additional discovery was an abuse of discretion.

Here, Savage did not show that the circuit court acted improvidently, thoughtlessly, or

19
without due consideration. Further, contrary to the clear and unambiguous language of

Arkansas Rule of Civil Procedure 56(f), Savage failed to satisfy the requirement of an affidavit

to demonstrate additional discovery was necessary. See McWilliams v. Schmidt, 76 Ark. App.

173, 189, 61 S.W.3d 898, 910 (2001) (“If the appellant cannot demonstrate how additional

discovery would have changed the outcome of the case, we cannot say that the trial judge

abused his discretion [in granting summary judgment.]”); Loghry v. Rogers Grp., Inc., 348 Ark.

369, 374, 72 S.W.3d 499, 502 (2002). Further, Savage had over a year to “find” Dr. Ahmadi

and identify him as an expert witness. We do not find that the denial of the motion for

additional discovery and motion to supplement response to motion for summary judgment

was an abuse of discretion. We affirm.

Affirmed in part; reversed and remanded in part.

WOOD and HIXSON, JJ., agree.

Sheila F. Campbell, for appellant.

Barber Law Fim, PLLC, by: Scott M. Strauss and Casey L. Mynatt, for appellee.

20