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Breckenridge v. Lowery

Court of Appeals of Arkansas, Division III

March 4, 2015

GERALD BRECKENRIDGE APPELLANT
v.
ROBERT D. LOWERY APPELLEE

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT [NO. CV-13-262] HONORABLE THOMAS MORGAN HUGHES, JUDGE

Gerald Breckenridge, pro se appellant.

Wright, Lindsey & Jennings, LLP, by: Edwin L. Lowther, Jr., and W. Carson Tucker, for appellee.

WAYMOND M. BROWN, JUDGE

Appellant appeals from the circuit court's order granting appellee's motion for summary judgment. On appeal, appellant argues that (1) the circuit court abused its discretion in deeming appellee's requests for admissions admitted when there was no proof in the record that appellant ever received the requests, and (2) the circuit court failed to liberally construe the pleadings so as to do substantial justice as required by Arkansas Rule of Civil Procedure 8(f).

We affirm.

Appellant filed a complaint for medical malpractice and negligence against appellee on July 1, 2013, asserting that "[a]s a result of [appellee's] negligence and violation of the applicable standard of care, [appellant's] vision remains impaired." A summons was dated July 11, 2013.[1] Proof of service was filed on July 12, 2013.

Appellee filed his answer on July 17, 2013, denying that surgery took forty-five minutes and admitting that he advised appellant that the posterior capsule had torn during the procedure, denying that he told appellant his vision would be normal within two days of his surgery, denying that appellant's vision remained impaired due to his negligence and violation of the applicable standard of care, and denying that appellant's damages were in excess of federal diversity jurisdiction. Appellee adopted all affirmative defenses available to him under the Arkansas Medical Malpractice Act.[2] Finally, he asserted that appellant had failed to state facts upon which relief could be granted, and therefore, moved to dismiss appellant's complaint pursuant to Arkansas Rule of Civil Procedure 12(b)(6).[3]

Also on July 17, 2013, appellee filed his requests for admissions. Therein, appellee made the following requests for admission:

REQUEST FOR ADMISSION NO. 1: Admit that you have not engaged a qualified medical care provider who will state, within a reasonable degree of medical certainty, that Dr. Robert D. Lowery failed to comply with the standard of care required of an ophthalmologist in his care and treatment of you. If you deny this Request, state with specificity the reason for your denial.
REQUEST FOR ADMISSION NO. 2: Admit that you have not engaged a qualified medical care provider who will state, within a reasonable degree of medical certainty, that Dr. Robert D. Lowery breached the applicable standard of care in his performance of corrective cataract surgery on you on July 14, 2010. If you deny this Request, state with specificity the reason for your denial.
REQUEST FOR ADMISSION NO. 3: Admit that you do not have any support through a qualified medical care provider for your allegation against Dr. Robert D. Lowery that there was an act of negligence on his part that was a proximate cause of injury to you. If you deny this Request, state with specificity the reason for your denial.

The certificate of service reflected that a copy of the requests for admission had been served on appellant at the address of 127 Highway 169, McCrory, Arkansas 72101. Appellant failed to respond.

On September 24, 2013, appellee filed a motion for summary judgment and accompanying brief in support, asserting that appellee's requests for admissions should be deemed admitted due to appellant's failure to respond within thirty days pursuant to Arkansas Rule of Civil Procedure 36(a).[4] Therein, appellee argued that because his requests for admissions should be deemed admitted, appellant was unable to meet his standard of care or ...


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