Poff v. Elkins

Cite as 2014 Ark. App. 663

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-924

SUE POFF Opinion Delivered November 19, 2014
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. CV-12-261]

JAMES P. ELKINS, M.D., and JAMES P. HONORABLE JOHN R. SCOTT,
ELKINS, P.A. JUDGE
APPELLEES
AFFIRMED

PHILLIP T. WHITEAKER, Judge

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
Cite as 2014 Ark. App. 663

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.

I. Discovery

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

2
Cite as 2014 Ark. App. 663

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

3
Cite as 2014 Ark. App. 663

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.

II. Evidence of the Licensure

Throughout the course of this proceeding, the parties engaged in an evidentiary

4
Cite as 2014 Ark. App. 663

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

5
Cite as 2014 Ark. App. 663

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 issue on the question of

proximate cause in medical-negligence cases involving informed consent is whether the

injured party would have undergone the surgery or procedure if she had known of the risk

involved. Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995). However, whether

the appellant’s level of sedation required that her procedure be performed in a licensed clinic

is disputed, and the appellant offered no evidence that a license was required. Admittedly,

her expert Dr. Kris Shewmake opined that, “If Dr. Elkins’s surgery center was not licensed

and if there were a requirement for such licensing, I am of the opinion that knowledge of

such information would have a bearing on whether or not the average patient would consent

to have surgery by Dr. Elkins.” While this opinion may have some relevance on the issue of

informed consent, it does not answer the question of whether the appellees were required

6
Cite as 2014 Ark. App. 663

to have a license.

A trial court may exclude relevant evidence under Arkansas Rule of Evidence 403 if

its probative value is substantially outweighed by the danger of unfair prejudice. The issue

of licensing was a peripheral issue that was also complex and could have caused jury

confusion. Weighing the probative value of this evidence against the prejudicial effect of it,

we conclude that the circuit court did not abuse its discretion in excluding the evidence

regarding whether Dr. Elkins had a license to conduct surgery.

III. Evidence of Poff’s Other Cosmetic and Elective Procedures

Prior to the trial, the appellant petitioned the circuit court through a motion in limine

to exclude any evidence of her prior cosmetic and elective procedures. The court denied

the motion finding that the evidence was relevant to the issue of informed consent. During

direct examination of the appellant, her attorney inquired about her previous cosmetic and

elective procedures. The appellant now challenges the court’s denial of her motion in

limine.

The appellant is barred from arguing that this ruling was in error. When a party opens

the door to a line of questioning, the opposing party may introduce testimony on that issue.

Pursley v. Price, 283 Ark. 33, 34, 670 S.W.2d 448, 449 (1984). The appellant argues that the

circuit court’s ruling on the motion in limine forced her to introduce this evidence on direct

examination. This argument is not persuasive. A trial court’s ruling on a motion in limine

is not a final ruling on the admissibility of the evidence in question, but only interlocutory,

tentative, or preliminary in nature. ConAgra v. Strother, 68 Ark. App. 120, 126, 5 S.W.3d 69,

7
Cite as 2014 Ark. App. 663

73 (1999). As such, it is subject to reconsideration and change by the court during the course

of the trial, as the evidence in the trial is fully developed. Id.

IV. Pre-Admitting Exhibits and Opening Statements

The appellant argues that the circuit court erred by refusing to pre-admit exhibits that

had been admitted in the previous case and disallowing the use of exhibits and demonstrative

aids during opening statements. Our review of these issues is limited to whether there has

been a manifest abuse of discretion. Chapman v. Ford Motor Co., 368 Ark. 328, 245 S.W.3d

123 (2006).

First, we consider whether the circuit court abused its discretion by refusing to pre-

admit exhibits. This was a contentious case with many discovery disputes. The appellees

objected to the pre-admission of exhibits, and it was within the circuit court’s discretion to

require that exhibits be admitted during the course of the trial. Furthermore, no prejudice

resulted from this ruling as the jury had all admissible evidence at its disposal at the close of

the case. We find no error in the circuit court’s refusal to pre-admit exhibits.

The appellant also requested that the circuit court allow the use of exhibits during her

opening statement. Arkansas courts may allow the use of exhibits in opening statements if

they are admitted during the trial. Ark. State Highway Comm’n v. Basin Dev. Corp., 264 Ark.

253, 571 S.W.2d 578 (1978). However, a reference to inadmissible evidence during an

opening statement is grounds for reversal. Clark v. State, 256 Ark. 658, 509 S.W.2d 812

(1974). The appellant argues that because it is within a circuit court’s discretion to allow

exhibits in opening statements if they are later admitted in the trial, it is error to disallow

8
Cite as 2014 Ark. App. 663

exhibits in opening statements when they are later admitted during the trial. This is not a

correct recitation of the law. The circuit court did not abuse its discretion because the ruling

served to ensure that no inadmissible evidence was produced in opening statements.

Furthermore, the appellant is again unable to demonstrate that any prejudice resulted because

the exhibits were ultimately introduced into evidence for the jury’s consideration.

We apply the same analysis when deciding whether it was error for the circuit court

to deny the request to use demonstrative aids in opening statements. A trial court has wide

discretion in determining whether to allow the use of demonstrative aids in opening

statements. Miller v. Hometown Propane Gas, Inc., 86 Ark. App. 189, 167 S.W.3d 172 (2004).

The circuit court did not abuse its discretion by disallowing demonstrative aids in opening

statements, and the appellant can point to no prejudice that resulted from the exclusion of

demonstrative aids in her opening statement.

V. Punitive Damages

By stipulation of the parties and pursuant to Arkansas Code Annotated section 16-55-

211(Repl. 2005), the circuit court bifurcated the trial of compensatory and punitive damages.

Following the close of the appellant’s case-in-chief, the circuit court granted a directed verdict

on her punitive damages claim sua sponte. The appellant contends that this ruling constituted

error. We disagree. Because the trial was bifurcated, the appellant was not entitled to present

evidence to support an award of punitive damages until the jury returned a verdict on liability.

Punitive damages are dependent upon the recovery of compensatory damages, as an award of

actual damages is a predicate for the recovery of punitive damages. Bayer CropScience LP v.

9
Cite as 2014 Ark. App. 663

Schafer, 2011 Ark. 518, 385 S.W.3d 822. Because the jury ultimately returned a verdict for the

appellees on the issue of liability, this issue is moot.

Affirmed.

HIXSON and BROWN, JJ., agree.

James E. Keever and Ken Swindle, for appellant.

Lisle Rutledge P.A., by: Stephen Lisle, for appellees.

10