Bedwell v. Cossey

BETTYE BEDWELL, Chapter 7 Trustee ofthe Bankruptcy Estate of Arthur Levy PLAINTIFF v. G. ADAM COSSEY; HUDSON POTTS & BERNSTEIN LLP;and JOHN DOES 1-10 DEFENDANTS

No. 2:18-cv-108-DPM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS DELTA DIVISION

December 21, 2020

ORDER

Affirmed. That would have been the judgment of the Arkansas Supreme Court on the merits had Cossey and his law firm perfected Dr. Levy's appeal by filing the trial court's record on time. No issue of jurisdictional significance is presented, and so the case might have been transferred to the Arkansas Court of Appeals for decision. If so, that appellate court would have come to the same conclusion.

First, the circuit court did not abuse its discretion by admitting Dr. William Rutledge's expert testimony. The Dowd Estate had to establish Dr. Levy's alleged malpractice with testimony from another medical care provider who satisfied Arkansas Rule of Evidence 702 and the malpractice statute's criteria, Ark. Code Ann. § 16-114-206(a)(1), which have been altered and glossed by Arkansas precedent. The statute's same-specialty provision fell to constitutional challenge some years ago. Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 14, 6- 7, 386 S.W.3d 385, 389. But its animating idea remains alive and well: under Rule 702, a proposed expert must have a solid experiential and educational basis for his opinions.

When this case was tried, Dr. Rutledge had been practicing medicine in Arkansas for almost four decades, first as a surgeon and then as a general practitioner. He had cared for more than one hundred patients with suspected appendicitis. He had taught at the University of Arkansas for Medical Sciences. And he was then serving on the Arkansas State Medical Board. As Dr. Rutledge said, there's lots of overlap between his general practice and Dr. Levy's family practice. Neither was board certified as an emergency room doctor, but, as Dr. Levy acknowledged at trial, most ERs are staffed by primary care physicians and family physicians. Dr. Rutledge's experience with diagnosing suspected appendicitis is the core of what made him qualified to evaluate Dr. Levy's care of Mrs. Dowd. ARK. R. EVID. 702; Cathey v. Williams, 290 Ark. 189, 192-93, 718 S.W.2d 98, 101 (1986); Thomas v. Sessions, 307 Ark. 203, 209, 818 S.W.2d 940, 943 (1991). Unlike the perinatologist who did not treat babies after birth, but sought to testify about a failed diagnosis involving an infant more than a year old, Dr. Rutledge had experience with the circumstances Dr. Levy confronted when Mrs. Dowd came to the ER in Helena. First Commercial Trust Co. v. Rank, 323 Ark. 390, 400-01, 915 S.W.2d 262, 266-67 (1996).

Dr. Rutledge likewise satisfied the statute's locality requirement, which is not particularly strict. The Estate didn't need another doctor from Helena; it needed a doctor familiar with localities having facilities, practices, and advantages similar to Helena's. Rank, 323 Ark. at 401, 915 S.W.2d at 267. Based on his approximately forty years of practice in Arkansas, his teaching at UAMS, his service on the State Medical Board, and his trial attendance during all of Dr. Levy's testimony (including about Helena's medical details), Dr. Rutledge spoke from a solid local point of view. He knew, in particular, what diagnostic tools Dr. Levy had at hand in Helena. The circuit court was well within its discretion in admitting this expert testimony. Brazeal v. Cooper, 2016 Ark. App. 442, *2, 503 S.W.3d 829, 830-31.

Because Dr. Rutledge was qualified to testify about what Dr. Levy did right and what he did wrong, the circuit court also did not abuse its discretion by not granting Dr. Levy's request for a new trial on the qualification issues. Suen v. Greene, 329 Ark. 455, 459, 947 S.W.2d 791, 793 (1997).

Second, there was no failure of proof on causation. Dr. Rutledge was unequivocal: Dr. Levy's failure to catch Mrs. Dowd's appendicitis—by taking an X-Ray, doing a CT scan, or keeping her overnight for observation—led to the infection that caused her death. Dr. Levy's expert agreed that her ruptured appendix was one of two possible sources for the fatal infection. Dr. Levy placed blame on thehospital, the surgeon who eventually operated on her, and those who transported her to Southaven and then Little Rock. Proximate cause is almost always a fact question, Coca-Cola Bottling Co. of Memphis, Tennessee v. Gill, 352 Ark. 240, 254, 100 S.W.3d 715, 724 (2003), and it was on this record. Whatever may have been the failings of others involved in caring for Mrs. Dowd, substantial evidence supported the jury's conclusion that Dr. Levy's failure to diagnose her appendicitis during the first ER visit was a proximate cause of her eventual death. Stecker v. First Commercial Trust Co., 331 Ark. 452, 458, 962 S.W.2d 792, 796 (1998). The circuit court therefore did not err in denying Dr. Levy's motions for judgment as a matter of law either before or after the verdict.

Third, the jury's decision not to put any negligence on the hospital, Helena Regional, or the surgeon, Dr. Major, did not justify a new trial, either. The Estate dropped its claims against these parties. Their alleged negligence went to the jury on Dr. Levy's demand for apportionment of nonparty fault. He thus had the burden of proof. Dr. Levy shouldered that burden through testimony from his expert witness and cross examination of the Estate's witnesses. But the jury, of course, wasn't required to believe this testimony. Rare is the negligence case where the party with the evidentiary burden is entitled to judgment as a matter of law. Potlatch Corp. v. Missouri Pacific RailroadCo., 321 Ark. 314, 317-18, 902 S.W.2d 217, 220 (1995). The circuit court didn't err by denying Dr. Levy's "I proved my case" motions.

Whether a new trial was justified because the jury's verdict was clearly against the preponderance of the evidence is a closer call. ARK. R. CIV. P. 59(a)(6). The verdict reflects that the jury wrestled with these issues, at least as to the hospital, because only nine jurors agreed that Helena Regional wasn't negligent. Doc. 50-1 at 54. The trial judge saw and heard all the witnesses. The evidentiary balance in this record is not so one-sided that an appellate court should second guess his informed discretion and order a new trial. Switzer v. Shelter Mutual Insurance Co., 362 Ark. 419, 427-28, 208 S.W.3d 792, 797 (2005).

Fourth, the cases teach that mistrial is a drastic remedy. E.g., Stecker, 331 Ark. at 461, 962 S.W.2d at 797. The trial court has wide discretion here in general and when dealing with counsel's statements in particular. National Bank of Commerce v. Quirk, 323 Ark. 769, 787, 918 S.W.2d 138, 148 (1996). Judge Mitchell did not abuse his discretion. Because Dr....