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Poff v. Elkins

Court of Appeals of Arkansas, Division IV

November 19, 2014

SUE POFF, APPELLANT
v.
JAMES P. ELKINS, M.D., and JAMES P. ELKINS, P.A., APPELLEES

Page 316

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CV-12-261. HONORABLE JOHN R. SCOTT, JUDGE.

James E. Keever and Ken Swindle, for appellant.

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

PHILLIP T. WHITEAKER, Judge. HIXSON and BROWN, JJ., agree.

OPINION

Page 317

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 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 nonsuited. 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

Page 318

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 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 ...


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