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Flemons v. Correctional Medical Services

April 16, 2007

AARON ANTHONY FLEMONS PLAINTIFF
v.
CORRECTIONAL MEDICAL SERVICES, ET AL. DEFENDANTS



ORDER

Plaintiff filed the present action pro se under 42 U.S.C. § 1983 (#2). On October 19, 2006, this Court entered an order appointing Plaintiff's current counsel and granting counsel sixty (60) days to file additional motions and responsive pleadings. Pending before the Court are the following motions: (1) Plaintiff's Motion for Leave to File a Fourth Amended Complaint (#162); (2) Plaintiff's Motion for Reconsideration of Order Adopting the Partial Recommended Disposition (#163); (3) Plaintiff's Motion for Extension of Time to Serve Michael Hudson, D.D.S. and Sandra Mangum (#164); and (4) Defendants' Motion for Extension of Time to File Response/Reply to Motion to Extend Time to Serve Michael Hudson, D.D.S. and Sandra Mangum (#170).

Plaintiff seeks leave to file a Fourth Amended Complaint in order to add additional defendants and additional claims that were discovered by newly appointed counsel. The Motion to File Fourth Amended Complaint (#162) will be GRANTED. Plaintiff is directed to file the Fourth Amended Complaint within ten (10) days after entry of this order. Plaintiff shall have thirty (30) days from the date of entry of this Order to serve the Fourth Amended Complaint on all defendants including defendants Michael Hudson, D.D.S. and Sandra Mangum. Accordingly, Plaintiff's Motion to Extend Time to Serve Michael Hudson, D.D.S. and Sandra Mangum (#164) and Defendants' Motion for Extension of Time to File Response/Reply to Motion to Extend Time to Serve Michael Hudson, D.D.S. and Sandra Mangum (#170) are MOOT.

Also pending before the Court is Plaintiff's Motion for Reconsideration (#163) of this Court's Order Adopting Partial Recommended Disposition (#104). The Order granted Plaintiff's Alternative Motion to Dismiss his state law medical malpractice claim (#76), denied as moot Defendants' Motion to Dismiss Medical Malpractice Claim (#70), denied Plaintiff's Alternative Motion to File an Amended Complaint to Reinstate the state law claims at a later date (#77), denied Plaintiff's Alternative Motion to Extend time to Present an Expert Affidavit (#78), and denied Plaintiff's Motion for Court Appointed Expert (#64). The Court's order was based on Plaintiff's failure to file an expert affidavit within thirty (30) days of filing his state law medical malpractice claim as required by Ark. Code Ann. § 16-114-206(a).

In his Motion for Reconsideration, Plaintiff argues that expert testimony is not required in his case to prove medical malpractice because "the standard of care is within the jury's common knowledge." After careful consideration, the Court finds that given the Plaintiff's allegations, expert testimony is required in this case to support the Plaintiff's state law medical malpractice claim. See Spring Creek Living Center v. Sarrett, 319 Ark. 259, 262, 890 S.W.2d 598, 600 (1995); Bailey v. Rose Care Ctr., a Div. of C.A.R.E., Inc., 307 Ark. 14, 18, 817 S.W.2d 412, 414 (1991). Additionally, Plaintiff's motion is untimely under Fed. R. Civ. P. 60(b) because it was not filed within one year of the entry of the order. For these reasons, Plaintiff's Motion for Reconsideration of Order Adopting the Partial Recommended Disposition (#163) is DENIED.

IT IS SO ORDERED this 16th day of April, 2007.

20070416

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