P. TIMOTHY ENGLISH, M.D.; FAMILY MEDICINE CLINIC, P.A.; JOHN H. BRUNNER, M.D.; AND HERITAGE PHYSICIAN GROUP, P.A., APPELLANTS
BRINDA ROBBINS, APPELLEE
APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT. NO. CV-2010-736-II. HONORABLE VICKI SHAW COOK, JUDGE.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: R.T. Beard and Megan D. Hargraves; and Malcom Law Firm, by: J. Phillip Malcom, for appellants.
The Boyd Law Firm, by: Charles Phillip Boyd, Jr.; and Beacon Legal Group PLLC, by: Benjamin R. McCorkle, for appellee.
COURTNEY HUDSON GOODSON, Associate CORBIN and DANIELSON, JJ., dissent. Justice. CORBIN, J., joins.
COURTNEY HUDSON GOODSON, Associate Justice
Appellants, P. Timothy English, M.D.; Family Medicine Clinic., P.A.; John Brunner, M.D.; and Heritage Physicians Group, P.A., appeal the circuit court's order vacating a judgment entered in favor of appellants. Appellants argue that the circuit court erred in vacating the judgment because the grounds for a new trial were not discovered more than ninety days after the court entered the amended judgment; that Act 1116 of 2013 applies retroactively to allow a third-party complaint for allocation of fault; and finally that any error in instructing the jury was harmless in light of the fact that the jury placed no fault on appellants. Appellee, Brinda Robbins, cross-appeals from the initial judgment, arguing that the circuit court erred in allowing appellants to bring in a third-party defendant shortly before trial; in refusing to instruct the jury on the burden of proof for affirmative defenses; and in allowing expert testimony that exceeded the scope of the expert's deposition. We affirm the circuit court's grant of a new trial, rendering the issues raised on cross-appeal moot.
This is an appeal from a jury verdict in a medical-malpractice case. Robbins is the court-appointed representative of the estate of her deceased mother, Ms. Betty Phillips. Phillips died in 2005 from gastric cancer. In 2006, Robbins filed suit against
Phillips's doctors, Gary Don Slaton, appellants English and Brunner, and their respective clinics. In 2009, Robbins settled with Slaton and dismissed her lawsuit against the remaining defendants without prejudice. In 2010, Robbins refiled her case against appellants, English and Brunner and their clinics. Approximately one month before trial, appellants each filed third-party complaints against Slaton for contribution and an allocation of fault pursuant to the Uniform Contribution Among Tortfeasors Act, found at Ark. Code Ann. § § 16-61-201 et seq., (UCATA) and the Civil Justice Reform Act of 2003, codified at Ark. Code Ann. § § 16-55-201 et seq. (CJRA). Robbins moved to strike the third-party complaints, arguing first, that the complaints were untimely and second, that following the abrogation of joint and several liability, no claim for contribution existed under the UCATA. Less than two weeks before trial, the circuit court denied Robbins's motion and allowed appellants to proceed on their third-party complaints against Slaton.
During the trial, the circuit court submitted instructions to the jury stating that Robbins bore the burden of proof against all doctors, including Slaton, and the court refused to give Arkansas Model Jury Instruction -- Civil 206 placing the burden of proof for affirmative defenses on appellants. Additionally, the circuit court submitted the case to the jury on five interrogatories: three regarding the negligence of each doctor; one allocating fault between the doctors; and one awarding damages to Robbins. The jury answered that Slaton was the only doctor who had violated the standard of care, and the jury apportioned one hundred percent of the fault to him. Additionally, the jury found that Robbins sustained zero dollars in damages. The circuit court entered judgment accordingly on October 3, 2012, and an amended judgment on October 5, 2012. Following the entry of judgment, Robbins filed a motion for new trial, which the circuit court denied, and Robbins filed a timely notice of appeal.
On December 13, 2012, this court handed down its decision in Proassurance Indemnity Co. v. Metheny, 2012 Ark. 461, 425 S.W.3d 689, holding that the CJRA did not create a substantive right to an allocation of fault. Thereafter, on January 2, 2013, Robbins filed a motion for relief from judgment citing the Metheny decision. On February 7, 2013, this court issued the decision of St. Vincent Infirmary Medical Center v. Shelton, 2013 Ark. 38, 425 S.W.3d 761, holding that the UCATA did not allow a third-party claim for contribution following the abrogation of joint and several liability. On March 8, 2013, the circuit court entered an order vacating the judgment and holding that, pursuant to the decisions in Shelton and Metheny, the third-party complaints and the verdict form naming Slaton were erroneous and that the jury instructions in the instant case were " fatally flawed." Appellants filed a motion for reconsideration, which the circuit court denied. They filed a timely notice of appeal from that order.
Subsequently, on April 8, 2013, the General Assembly passed Act 1116 of 2013, modifying the UCATA. Act 1116 modified the definition of " joint tortfeasor" and added a new definition of " several liability," which it defined as " each person or entity is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault." Act of Apr. 11, 2013, No. 1116, § 2, 2013 Ark. Acts 4345, 4346 (codified as amended at Ark. Code Ann. § 16-61-201 (Supp. 2013)). The Act also added a new section providing that " the right to ...