FROM THE BENTON COUNTY CIRCUIT COURT [NO. CV 2013-1854-5]
HONORABLE XOLLIE DUNCAN, JUDGE.
E. Keever and Ken Swindle, for appellant.
Cox & Estes, PLLC, by: Walter B. Cox and James R. Estes,
for appellees Scott Cooper, M.D. and Ozark Orthopaedic
G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for
amicus curiae Arkansas Trial Lawyers Association.
LARRYD. VAUGHT, Judge.
Brazeal appeals from a 2013 Benton County jury verdict in
favor of Dr. Scott Cooper and his clinic, Orthopaedic Clinic,
Ltd. (collectively referred to as appellees), on
Brazeal's medical-negligence claim stemming from
complications from a total knee replacement. On appeal,
Brazeal argues that (1) the trial court erred in refusing to
strike the trial testimony of Dr. Cooper's expert
witness, and (2) the trial court erred by refusing to strike
three jurors for cause. We affirm.
sued appellees for medical negligence related to a total
knee-replacement surgery that Dr. Cooper performed on him on
December 20, 2011. The case went to trial in August 2015.
After voir dire, Brazeal asked the court to strike a total of
nine potential jurors for cause, of which the court excused
two. Of the remaining seven, four were drawn for the jury
panel. Brazeal used one of his peremptory challenges to
remove one of these jurors but did not use his remaining two
peremptory strikes. Three jurors to whom Brazeal had raised
challenges were ultimately seated on the jury.
the trial, appellees called Dr. Frank Griffin as an expert
witness. Dr. Griffin is an orthopedic surgeon who Brazeal
stipulated was qualified under Rule 702 to testify as an
expert. Dr. Griffin testified that he grew up in Arkansas,
attended medical school in Arkansas, did his orthopedic
residency in Arkansas, and had practiced orthopedic medicine
in Van Buren since 1997. He testified that he was familiar
with the standard of care in Benton County, Arkansas, and
that there were no appreciable differences in how orthopedic
surgery is practiced in the Rogers/Bentonville area versus
Van Buren. He also testified that the communities of
Rogers/Bentonville and Van Buren were similar in terms of the
orthopedic services provided. Finally, he testified that he
was active in the Arkansas Medical Society and had been on
the Board of Trustees of the Arkansas Medical Society since
the conclusion of Dr. Griffin's testimony, Brazeal moved
to strike all of Dr. Griffin's testimony because it
failed to meet the requirements of the locality rule found in
Arkansas Code Annotated section 16-114-206 (Repl. 2006).
Appellees responded that the locality rule applies only to
the plaintiff and alternatively, Dr. Griffin's testimony
was sufficient to meet the locality rule. The court denied
Brazeal's motion without comment.
jury returned a defense verdict. Brazeal filed a motion for
new trial, again arguing that Dr. Griffin's testimony had
failed to meet the requirements of the locality rule and
should have been stricken. The court did not rule on the
motion, and it was therefore deemed denied. Brazeal then
filed a timely notice of appeal. On appeal, Brazeal raises
two points for reversal: (1) the trial court erred in
refusing to strike for cause the three jurors to whom he had
objected who were ultimately seated on the jury, and (2) the
court erred by refusing to strike Dr. Griffin's expert
testimony in its entirety.
the refusal to strike jurors, in Herrington v. Ford Motor
Co., 2010 Ark.App. 407, at 3-4, 376 S.W.3d 476, 479, we
Persons comprising the venire are presumed to be unbiased and
qualified to serve, and the burden is on the party
challenging a juror to prove actual bias. Berry v. St.
Paul Fire & Marine Insurance Co., 328 Ark. 553, 944
S.W.2d 838 (1997). The issue of a juror's qualifications
lies within the sound discretion of the trial court and we
will not reverse absent an abuse of discretion. Id.
in this case, we cannot address the merits of Brazeal's
objections to the three jurors because Brazeal admittedly
chose not to use all of his peremptory challenges. Brazeal
argues that, because there were three jurors to whom he had
objected, he could not possibly have remedied the error by
exhausting his two remaining peremptory challenges.
case law is clear that failure to exhaust one's
peremptory challenges waives the right to challenge the trial
court's refusal to strike jurors for cause. In
Sovereign Camp, W.O.W.v. Cole, 192 Ark.
268, 90 S.W.2d 769 (1936), the Arkansas Supreme Court
explained that "where the record fails to show that the
defendant had exhausted his peremptory challenges, his
objection that a juror was improperly held competent is
unavailing in the appellate court, because the failure to
challenge is an implied admission that the juror was
unobjectionable." Sovereign Camp, 192 Ark. at
270, 90 S.W.2d at 770 (citing Mabry v. State, 50
Ark. 492, 8 S.W. 823 (1888)). This rule has been subsequently
reaffirmed. See Mason v. Loving, 251 Ark. 356, 473
S.W.2d 169 (1971); Burdick v. Little Switzerland Realty,
Inc., 2009 Ark.App. 553 ("We will not consider
arguments concerning jurors either accepted by appellant
while he had peremptory challenges remaining or ...