{ "id": 1875364, "name": "Elsie ALEXANDER et al. v. Jerry C. CHAPMAN and CRESTVIEW FAMILY CLINIC, P.A.", "name_abbreviation": "Alexander v. Chapman", "decision_date": "1986-06-16", "docket_number": "85-167", "first_page": "238", "last_page": "248", "citations": [ { "type": "official", "cite": "289 Ark. 238" }, { "type": "parallel", "cite": "711 S.W.2d 765" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "33 Ark. L. Rev. 439", "category": "journals:journal", "reporter": "Ark. L. Rev.", "year": 1979, "opinion_index": 0 }, { "cite": "225 Ark. 547", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642682 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/ark/225/0547-01" ] }, { "cite": "197 Ark. 360", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720294 ], "weight": 2, "year": 1939, "opinion_index": 0, "case_paths": [ "/ark/197/0360-01" ] } ], "analysis": { "cardinality": 816, "char_count": 18687, "ocr_confidence": 0.901, "pagerank": { "raw": 1.86014154204247e-07, "percentile": 0.7247468867876081 }, "sha256": "72840e1011c25b174d29805d4f3b05964974fa1e8ebf428b0b1271695d9ee99d", "simhash": "1:fb6914b2e3ae8421", "word_count": 3141 }, "last_updated": "2023-07-14T19:22:34.211418+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, C.J., and Purtle, J., not participating." ], "parties": [ "Elsie ALEXANDER et al. v. Jerry C. CHAPMAN and CRESTVIEW FAMILY CLINIC, P.A." ], "opinions": [ { "text": "Darrell Hickman, Justice.\nThis is a medical malpractice case. John Alexander was 53 years old when he died on October 1, 1979, from a heart attack. Dr. Jerry Chapman and the clinic with which he was then associated, Crestview Family Clinic, treated Alexander several times for symptoms that could have been heart related. On July 14 and 24,1979, he was hospitalized and treated by Chapman and his associates. He was seen thereafter on August 1, 16 and 19, and September 26. Dr. Chapman was telephoned September 28 because Alexander was weak and had chest pains. He died three days later. Alexander\u2019s widow and son sued, claiming that the appellees failed to diagnose and treat Alexander\u2019s illness and, thus, failed to prevent his death. The trial lasted seven days, and the jury returned a verdict for the appellees.\nThe question on appeal is whether the trial court abused its discretion in failing to deal with the trial tactics of the appellees\u2019 attorney. Among the allegations are that counsel repeatedly and continually led witnesses and violated a pretrial order that prohibited the mentioning of certain matters. We do not, as a matter of course, reverse on the basis of such allegations even if they are borne out by the record. See, e.g., Missouri Pac. R. Co. v. Sullivan, 197 Ark. 360, 122 S.W.2d 947 (1939).\nThis case, however, presents the unique situation where counsel was repeatedly admonished and the court repeatedly sustained objections to the leading questions, was even presented with a motion to strike the testimony, yet counsel\u2019s conduct was not stopped. The trial court decided that striking the testimony was too severe a sanction, yet was unable to stop the leading. Counsel also violated pretrial orders. After the trial, a motion for a new trial was filed, citing violations of the pretrial order, comments by appellees\u2019 counsel, and counsel\u2019s conduct in examination of the witnesses. Now we must decide whether the trial court\u2019s decisions at the trial and in denying the new trial were an abuse of discretion. In doing so we must necessarily decide whether conduct of counsel, ordinarily a matter which lies within the court\u2019s sound discretion, can go so far that some sanction must be taken. There are limits to everything and when counsel cannot or will not abide by the rules of evidence and of the trial court, and the trial court cannot stop the violations, we have to. The contention on appeal is that although no one instance of counsel\u2019s conduct would be cause for reversal, all of the violations combined to deny the appellants a fair trial. We have to agree and the only acceptable course is to reverse the trial court.\nBefore trial, appellants moved that the appellees be prohibited from mentioning certain matters during voir dire, arguments or any part of the trial. In a pretrial order the trial court granted the motion in the following instances relevant to this appeal: (1) there was to be no suggestion that a verdict for the appellants would be tantamount to a \u201cconviction\u201d of the appellees; (2) there was to be no suggestion of any \u201ccredibility enhancing\u201d items such as religious activities; and (3) no suggestion that a verdict for the appellants would have a damaging effect on medical services.\nThe order was clearly violated in closing argument when appellees\u2019 counsel said, \u201cyou see, even $ 1.00 convicts my client of malpractice, doesn\u2019t it?\u201d (Italics supplied.) Upon objection, the trial court asked counsel to rephrase the statement.\nDuring opening and closing arguments, appellees\u2019 counsel stated that next to God, his family and his patients, the law suit was the most important thing in the doctor\u2019s life. No objection was made beyond the motion in limine and in the motion for a new trial. This was not a flagrant violation of the pretrial order.\nIn closing, appellees\u2019 counsel also said, \u201cA judge once said, we\u2019ve got to be careful in these cases not to make doctors guarantors of good results or a cure.\u201d Appellants\u2019 counsel objected that what another judge said is not the law. The trial court essentially overruled the objection and then appellees\u2019 counsel said, \u201cAnd we must, therefore, be careful lest we find very few, if any, who would accept the responsibility of being a doctor, you see.\u201d The appellants contended in their motion for a new trial and argue on appeal that this violated the pretrial order prohibiting any suggestion that a verdict for the appellants would have a damaging effect on medical services. Again the statement is not a clear and undisputable violation of the pretrial order, but it does touch on a subject that was ruled prohibited. When these violations are considered along with the continued leading of witnesses during the trial, the errors become more significant.\nLeading questions were continually used in the examination of appellees\u2019 experts. During direct examination of the appellees\u2019 expert witnesses, there were 28 objections to leading questions. Once the court admonished counsel without being prompted by an objection. Fourteen objections were sustained. Three times there was no ruling. Twice the question was withdrawn by appellees\u2019 counsel. The appellants\u2019 objections were overruled nine times.\nBefore appellants\u2019 counsel asked for the sanction that appellees\u2019 counsel be prohibited from continuing to inquire after leading, the court admonished appellees\u2019 counsel five times, four times of which were of the court\u2019s own volition. For instance, once the court said, \u201c[appellees\u2019 counsel], it is [leading], sir. I would appreciate it if you would ask questions rather than making statements and asking is that true.\u201d Another time the court said, \u201cYes, and I think that was pretty blatant leading that last time, [appellees\u2019 counsel]. Please, sir, let\u2019s please confine your questions to this gentleman to be questions.\u201d Finally appellants\u2019 counsel requested that if appellees\u2019 counsel continued to lead, that he be prohibited from inquiring further into the subject. The court responded to the request by admonishing appellees\u2019 counsel:\nThe Court: Well, let\u2019s just take the last question, [appellees\u2019 counsel]. \u2018State whether or not millions have been spent in research into the causes of arteriosclerosis. . .\u2019or whatever, however it ended. You know, obviously he\u2019s going to say. And in effect you\u2019re telling him what the fact is and you\u2019re telling the jury what the fact is and that has nothing to do with experts or anything else. That\u2019s just telling the witness, isn\u2019t this true, isn\u2019t this true, isn\u2019t this true. And that\u2019s what they\u2019re objecting to and that\u2019s what we\u2019re seeing a lot of. I suppose the proper way to ask that question is, what\u2019s being done in medical science to cure arteriosclerosis? And he would say, well, we\u2019re spending millions of dollars; rather than saying isn\u2019t millions of dollars being spent; isn\u2019t this a disease that\u2019s hard to cure; aren\u2019t people dying everyday from this disease, you know. Instead of saying, what\u2019s the effects of this disease; well, people die everyday. That\u2019s the reverse of it. That\u2019s what you\u2019re objecting to.\nAfter an interjection by appellants\u2019 counsel, the court continued:\nWell, I know but I\u2019m saying that\u2019s the last question that was asked and that\u2019s just clearly a leading question, whether you say, state whether or not or isn\u2019t it true or whatever.\nI don\u2019t know what the solution is because we\u2019re seeing a lot of leading questions and I certainly don\u2019t want to resort to that. Would it suffice if I just say, let\u2019s please, without having to go through this again, just please be circumspect in the questions you ask so that we\u2019re asking the party to state his testimony rather than yes or no, or yes, that\u2019s a fact, or no, that\u2019s not a fact, I agree with that or I don\u2019t agree. Which is really what you\u2019re asking yes, I agree with what you say, when you say state whether or not; yes, I agree with what you\u2019re saying, [counsel]. In which case as I said earlier, what we\u2019re doing is you\u2019re testifying or [appellees\u2019 counsel] testifying when he says it and all he\u2019s saying is, yeah, I agree with that fact you\u2019ve just stated. And the jury says, well, [appellees\u2019 counsel] says that\u2019s true and the doctor says it\u2019s true, so \u2014\nThe Court: I don\u2019t think [appellees\u2019 counsel] is intentionally leading these witnesses. He\u2019s a tried and true trial attorney and he\u2019s trying the case as he best knows how. I don\u2019t think he\u2019s intentionally saying, I\u2019m going to get another one in here and do this. But the problem arises and the question is \u2014 it\u2019s an ongoing problem \u2014 how to deal with this question. And I\u2019m just advising [appellees\u2019 counsel] I think we\u2019re getting a lot of leading questions and relying upon him to protect us from that in the future.\nAfter that there were five more objections to leading questions until appellants\u2019 counsel asked that the responses be stricken. The trial court refused but admonished appellees\u2019 counsel to \u201cplease confine your questions to questions.\u201d There were seven objections to leading questions after that. At one time appellants\u2019 counsel renewed their motion and the following colloquy occurred:\n[Appellants\u2019 counsel]: Secondly, I despair of what to do with respect to leading questions. If I continue to object, I\u2019m going to not only alienate the jury, but it\u2019s my impression that the defense counsel is trying to beat the Court down on leading questions. And not only do I run the risk of alienating the jury, but if the Judge overrules me when they\u2019re leading, then that makes my other objections look bad. So I move to strike the testimony of all of the defense witnesses on the grounds that their testimony has been warped completely out of kilter by suggestive, leading questions. (Italics supplied.)\nThe Court: Well, of course I\u2019m not going to do that. I don\u2019t think it\u2019s that serious. I think there is a constant problem with leading questions, [appellees\u2019 counsel]. And I don\u2019t know what to do about it either. I certainly don\u2019t want to strike your witnesses, but there are a lot of comments \u2014 and I forget the one about the nurse, but, you know, I thought, gee whiz, what does that have to do with the case, which is harmless in itself, but I don\u2019t know. Tell me what I do, [appellees\u2019 counsel]. Tell me how to handle it. You tell me. (Italics supplied.)\n[Appellees\u2019 counsel]: Your honor, you\u2019ve shown that counsel has a continuing objection to this and \u2014\nThe Court: I don\u2019t think you\u2019re intentionally saying, I\u2019m going to lead this man and lead this man. It\u2019s just the patterns of the questions that keep coming up. I\u2019m getting sensitive to it now because I expect [appellants\u2019 counsel] to jump up every time there\u2019s a leading question and say, oop, here we go again. And I\u2019m getting sensitive to it and I\u2019m getting overreactive to it in the sense I\u2019m waiting for it each time because I\u2019m waiting for [appellants\u2019 counsel] to jump up. And they\u2019re getting oversensitive to it because they\u2019re very sensitive about the leading situation.\n[Appellants\u2019 counsel]: That\u2019s the very importance of it right there, Your Honor. I know the jury is getting irritated with me for making what is a proper objection.\nThe Court: I don\u2019t think they are frankly. Unfortunately my experience has been that the most obnoxious \u2014 of course you\u2019re certainly not this \u2014 but the most obnoxious lawyers I have, in the sense I just finally said, sit down, we\u2019ll note you object to everything, they win big verdicts. They\u2019ve bothered the devil out of me. They don\u2019t bother the jury at all. So anyway the most extreme cases of objection I\u2019ve seen have apparently not bothered the juries at all. And of course, you\u2019re not anywhere near anything like that. I\u2019m just saying the worse case scenario I\u2019ve seen has gotten some of the biggest verdicts, so I don\u2019t know that even has an effect on the juries, much against our common belief in the legal profession.\nBut in any event all I can do is encourage [appellees\u2019 counsel] to be more circumspect in your questions in the sense they\u2019re not leading, and to ask the witness a proper question which elicits a statement from him rather than asking him to agree with your statement, and to avoid any gratuitous comments like we had of the nurse about whatever it was, which necessitated another bench conference.\nI don\u2019t think any great damage is being done to be honest with you, [appellants\u2019 counsel]. I don\u2019t think this is turning the case around and it\u2019s a situation in which the questions would not have been answered the same way if they\u2019d been asked properly. It\u2019s not a situation where these witnesses are being led down the path. I know it\u2019s annoying to you and [appellants\u2019 counsel] and I know it\u2019s bothering the devil out of you and I\u2019m getting to be bothered now because I\u2019m sensitive to you all jumping up, and properly so, and I\u2019m getting sensitive to the whole thing myself. I don\u2019t think it\u2019s determining the outcome of this case by any way, mean shape or form. It\u2019s just an annoying thing that\u2019s bothering you and it\u2019s beginning to bother me.\nSo I\u2019m not going to strike the testimony. I\u2019m going to caution [appellees\u2019 counsel] once again to watch that and avoid any sidebar comments and to quit leading his witnesses. And we\u2019ll note your objection for the record.\nThe motion was renewed one other time, and the trial court instructed the witness not to answer the leading question. Appellants\u2019 counsel asked that a continued objection be noted, which it was.\nImproper leading includes improper suggestion and improper ratification. Wigmore, Treatise on the Law of Evidence \u00a7 769: Callahan v. Farm Equipment, Inc., 225 Ark. 547, 283 S.W.2d 692 (1955). Suggestion occurs when a question indicates the answer desired and ratification occurs when a question is suggestive, contains factual detail which could and should originate with the witness and the witness adopts the detail and the form in which it is expressed. Denbeaux and Risinger, Questioning Questions: Objections to Form in Interrogation of Witnesses, 33 Ark. L. Rev. 439 (1979).\nFollowing are examples where counsel improperly suggested the desired answers from his expert witnesses:\nQ. All right. In your experience, does the computer overread or under read EKGs?\nA. The computer tended to overread EKGs:\nQ. And that\u2019s the way it should be, don\u2019t you agree?\nA. I would prefer it that way.\nQ. So that all doubt is resolved on behalf of the patient to try to give patient help if he needs it?\nA. Every benefit of the doubt.\n# * # % * *\nQ. Now we know that there was no myocardial infarctions within one year prior to July of 1979 as a matter of truth and fact, don\u2019t we?\nQ. Then Doctor, it\u2019s unfortunate but true that in heart attack cases we really don\u2019t know about prior heart attacks and whether or not for sure the patient had one until, unfortunately, some day the patient dies and you can do an autopsy on him, isn\u2019t that true?\n\u2021 * * % H\u00ed \u2021\nQ. And the practice of medicine is based on what, Doctor?\nA. The practice of medicine is based on, as nearly as possible, gathering objective data and then you have to interpret that data.\nQ. And who has to interpret it?\nA. The physician.\nQ. And that\u2019s judgment, isn\u2019t it?\nA. And that\u2019s judgment.\nQ. Professional judgment.\nA. That\u2019s professional judgment.\nQ. Human judgment.\nA. Human judgment.\nSome of the sanctions for leading questions recommended by the authors of the cited law review article are: striking the improper question and permitting a proper one, admonishment at the bench or before the jury, striking the improper question and refusing to allow counsel to reask, contempt, and mistrial. Denbeaux and Risinger, supra.\nHere counsel repeatedly ignored the trial court\u2019s warnings concerning leading questions. The court conceded it could not or would not take action beyond admonishment. Only once did it instruct the witness not to respond. If counsel will not comply with the trial court\u2019s requests, then some sanction, with teeth, must be used against him. We are certain the leading would have stopped had the trial court granted appellants\u2019 motion to preclude further inquiry. The appellants were entitled to have the leading stopped.\nTrial courts by necessity are granted great power and discretion to preserve the order of their courtrooms. They have at their command numerous sanctions to see that rules are followed. Because the sanctions exist they are usually not necessary, but sometimes they must be used. Some sanctions should have been used in this case. The appellants were entitled to have the case presented to the jury in the words of witnesses not counsel. In finding an abuse of discretion in not employing those sanctions, we emphasize that our decision is necessarily limited to the facts this record presents.\nThe appellees urge us to find no error because the appellants failed to move for a mistrial, to object during closing argument, or to demonstrate prejudice. In this case, as counsel for the appellants pointed out, it would have been to the appellees\u2019 benefit to have a mistrial declared since it is they who are seeking to preserve the status quo. Repeated objections were made and timely motions made giving the trial judge an opportunity to stop the tactics. The trial judge essentially conceded he could not stop counsel. The impression left with the jury could not help but prejudice the appellants\u2019 case.\nWhile the responsibility for the conduct of the trial falls on the trial court, experienced counsel should not go too far in testing the patience of the system. Besides continued leading and violating the pretrial order, appellees\u2019 counsel asked an expert whether he believed Dr. Chapman to be negligent. Counsel knew full well that the answer was an impermissible opinion on the ultimate issue and withdrew the question upon objection. There should be no attempt to elicit such evidence on retrial.\nAppellants make other arguments about sidebar comments of appellees\u2019 counsel and statements made in argument that were allegedly unsupported by the evidence. The instances will not occur on retrial, and, even so, the trial court\u2019s ruling will not be disturbed on appeal. We have no way to determine simply from the record the effect of these comments or the spirit in which they were made and we must rely on the trial court\u2019s sound discretion.\nReversed and remanded.\nHolt, C.J., and Purtle, J., not participating.", "type": "majority", "author": "Darrell Hickman, Justice." } ], "attorneys": [ "Perroni & Rauls, P.A., by: Samuel A. Perroni-, and Wilson, Engstrom & Corum, by: William R. Wilson, Jr., for appellants.", "Friday, Eldredge & Clark, by: W.A. Eldredge, Jr. and Calvin J. Hall, for appellees." ], "corrections": "", "head_matter": "Elsie ALEXANDER et al. v. Jerry C. CHAPMAN and CRESTVIEW FAMILY CLINIC, P.A.\n85-167\n711 S.W.2d 765\nSupreme Court of Arkansas\nOpinion delivered June 16, 1986\nPerroni & Rauls, P.A., by: Samuel A. Perroni-, and Wilson, Engstrom & Corum, by: William R. Wilson, Jr., for appellants.\nFriday, Eldredge & Clark, by: W.A. Eldredge, Jr. and Calvin J. Hall, for appellees." }, "file_name": "0238-01", "first_page_order": 264, "last_page_order": 274 }