{ "id": 236247, "name": "Dr. James Y. SUEN v. Kenneth GREENE", "name_abbreviation": "Suen v. Greene", "decision_date": "1997-07-11", "docket_number": "96-702", "first_page": "455", "last_page": "469", "citations": [ { "type": "official", "cite": "329 Ark. 455" }, { "type": "parallel", "cite": "947 S.W.2d 791" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "261 Ark. 695", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678985 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "702" }, { "page": "540" }, { "page": "701-02" }, { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/ark/261/0695-01" ] }, { "cite": "313 Ark. 445", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914677 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0445-01" ] }, { "cite": "233 Ark. 342", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691600 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/233/0342-01" ] }, { "cite": "277 Ark. 190", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750238 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "195" }, { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/ark/277/0190-01" ] }, { "cite": "289 Ark. 238", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875364 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0238-01" ] }, { "cite": "296 Ark. 571", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892714 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0571-01" ] }, { "cite": "320 Ark. 15", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451223 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0015-01" ] }, { "cite": "313 Ark. 570", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914581 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0570-01" ] }, { "cite": "313 Ark. 154", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914579 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0154-01" ] }, { "cite": "273 Ark. 319", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719317 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/273/0319-01" ] }, { "cite": "324 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9158760 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark/324/0120-01" ] }, { "cite": "311 Ark. 265", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896953 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/311/0265-01" ] }, { "cite": "327 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922823 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark/327/0180-01" ] } ], "analysis": { "cardinality": 998, "char_count": 23716, "ocr_confidence": 0.733, "pagerank": { "raw": 1.306078487617425e-07, "percentile": 0.6232309296796841 }, "sha256": "c55e5aaa74e453e3d560663bd4eb9c93aab74a36da1596c8900c341485960ad8", "simhash": "1:b006a30e750eddea", "word_count": 3929 }, "last_updated": "2023-07-14T20:24:12.305718+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Newbern, Glaze, and Imber, JJ., dissent.", "Newbern and Imber, JJ., join this dissent." ], "parties": [ "Dr. James Y. SUEN v. Kenneth GREENE" ], "opinions": [ { "text": "Ray Thornton, Justice.\nThis is a medical malpractice case. Mr. Kenneth Greene, appellee, was injured during surgery performed by Dr. James Y. Suen, appellant, in November of 1986. He filed this complaint in July of 1990, and the matter was tried before a jury in Crawford County in a fifteen-day trial, which lasted from September 23 to October 13, 1995. The jury returned a verdict absolving appellant of medical malpractice. On appellee\u2019s motion, the trial court granted a new trial, and appellant appeals from that order.\nThe record in this case consists of thirty-four bound volumes containing more than 7,400 pages together.with a box of exhibits. We have reviewed the trial court\u2019s decision to grant a new trial because of side-bar comments by appellant\u2019s counsel, its determination that it had erred in not striking the testimony of one expert witness, and that it had erred in refusing to declare a mistrial after another witness for appellant gave unresponsive answers in testimony. We have concluded that these irregularities do not meet the standard set forth in Ark. R. Civ. P. 59; that is, they do not \u201cmaterially affect the substantial rights of [the] party.\u201d Ark. R. Civ. P. 59(a); Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993). Put another way, the irregularities complained of do not show a reasonable possibility of prejudice to appellee\u2019s right to a fair trial. Nazarenko v. C.T.I. Trucking Co., 313 Ark. 570, 856 S.W.2d 869 (1993). We hold that granting a new trial on these grounds was a clear abuse of discretion and we reverse and dismiss.\nIn granting appellee\u2019s motion for new trial, the trial court determined (1) that it had committed error in failing to strike testimony of Dr. Ossami Al-Mefty, one of appellant\u2019s expert witnesses; (2) that it had committed error in failing to declare a mistrial for unresponsive and prejudicial responses of Dr. William Friedman, an expert medical witness of appellant\u2019s; and (3) that prejudice to appellee\u2019s right to a fair trial resulted from appellee\u2019s many objections to \u201cside-bar comments\u201d by appellant\u2019s trial counsel. Rule 59(a) of the Arkansas Rules of Civil Procedure provides:\nA new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:\n(1) any irregularity in the proceeding or any order of the court or abuse of discretion by which the party was prevented from having a fair trial;\n(2) misconduct of the jury or prevailing partyf.]\nArk. R. Civ. P. 59(a)(l)-(2).\nWe have held that, while a trial court\u2019s discretion is much broader where the question is whether a jury verdict is supported by a preponderance of the evidence, still, its discretion when granting a new trial under other provisions of Rule 59 should not be disturbed absent manifest abuse of discretion, or \u201cdiscretion improvidently exercised.\u201d Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995). The party moving for a new trial under these provisions must show that his rights have been materially affected by demonstrating that a reasonable possibility of prejudice resulted from the misconduct. Diemer v. Dischler, supra.\nWith this rule in mind, we first examine the court\u2019s order finding that the conduct of Mr. Malcom, attorney for appellant, in making side-bar comments materially affected the substantial rights of the appellee, and prevented the appellee from having a fair trial. The record has been abstracted to include every instance of alleged unresponsiveness of witnesses to questions by appellee\u2019s counsel, and every instance of side-bar comments in both the direct and redirect examinations. We have reviewed all these exchanges, and we observe that the effort to present the qualifications of Dr. Friedman as an expert fairly reflects the general nature of the \u201cunresponsive answers\u201d and side-bar comments with which the record is replete. A few examples follow:\nMr. Malcom [appellant\u2019s attorney]: Doctor, if you could, I\u2019d like you to visit with us a moment. Have you continued through the years, both when you\u2019ve been [in] academics and when you\u2019ve been in private practice, with lecturing or teaching or conducting seminars? I want to cover first the United States with regard to specific areas that would relate to his case.\nMr. Morgan: Your Honor, I object to the side-bar remarks throughout the question. He can ask the question without the side-bar remarks.\nMr. Malcom: I\u2019ll rephrase the question.\nMr. Malcom: Can you tell the ladies and gentlemen of the jury, and I know [there are] references in your curriculum vitae, but please go ahead and tell us what kind of lecture you conduct.\nMr. Morgan: Your Honor, I object to the side-bar remark.\nThe Court: Yes, let\u2019s just ask the questions.\nt- * *\nMr. Malcom: Just give us [a] general overview. You don\u2019t have to cover everything specifically.\nDr. Friedman: Well, I have tried to lecture at major meetings only, because other than that I don\u2019t have time to just go to any meeting.\nMr. Morgan: Objection, nonresponsive, Your Honor.\nThe Court: Yes, let\u2019s just tell us what you\u2019ve done.\n* * *\nMr. Malcom: I thought we\u2019d save some time. Please go to it [the curriculum vitae].\nDr. Friedman: And so we\u2019ll do that, I guess.\nMr. Morgan: Objection to side-bar remark.\nThe Court: Sustained. You just need to go to your curriculum [vitae]. That\u2019s what it\u2019s here for.\nDr. Friedman: I\u2019m going as fast as I can, Your Honor.\nMr. Morgan: Objection to the side-bar, Your Honor.\nThe Court: Yes. Be responsive to questions.\nMr. Morgan: I would ask the Court to instruct the witness just to answer the questions and leave the side-bar remarks off.\nThe Court: Yes. Just answer questions, Doctor.\nDr. Friedman: Okay.\nMr. Morgan: I object to the okay, Your Honor.\nThe Court: Yes. That\u2019ll be sustained.\nHi * *\nMr. Malcom: Continue on, sir, if you could, and we\u2019d like you to just briefly hit some high points?\nMr. Morgan: Objection to the side-bar, Your Honor.\nThe Court: Sustained.\nH\u00ab Hi Hi\nMr. Malcom: Let\u2019s go forward a few pages and let\u2019s go to the early 1980\u2019s. Can you get on page 15 with me?\nDr. Friedman: Yeah.\nMr. Malcom: This is nine years later, 1981.\nMr. Morgan: Objection. Side-bar remark.\nThe Court: Sustained.\nThese few examples from the abstracted testimony serve as illustrations of strictly enforced rules of procedure, and we do not find any irregularity that would materially affect the substantial rights of appellee, by preventing the appellee from having a fair trial.\nThe record shows that the trial court was firm and decisive in maintaining tight control over the proceedings. Near the end of the fourteenth day of the trial, the following exchange occurred:\nThe Witness: Your Honor, can I have the operative report in front of me, please?\nThe Court: I think that\u2019s reasonable.\nMr. Morgan: Let me show you what has been marked as exhibit. . . well, let me ask you this first and then I will. . .\nMr. Malcom: We have the exhibits that I got yesterday, Your Honor, I can get them to give them to him.\nMr. Morgan: Your Honor. . .\nThe Court: Mr. Malcom. . .\nMr. Malcom: Yes.\nThe Court: Mr. Malcom, if you interrupt again or walk in front of people again I\u2019m going to remove you from the courtroom. You have interrupted his examination at least five times. You know that\u2019s not the way it\u2019s done, don\u2019t you?\nMr. Malcom: Your Honor, I\u2019ve been in the court and a lawyer for 20 years and I know a lot of things, the way they\u2019re not done. Mr. Morgan: Your Honor, I object to that remark.\nThe Court: Mr. Malcom, you are excluded from the courtroom for the rest of this witness. Mr. Ledbetter will have to take over.\nMr. Malcom left the courtroom, and after conference, Mr. Led-better persuaded the trial court to allow him to return on the condition that he only be permitted to make objections.\nAs a ground for a new trial, the order of the trial court does not find any misconduct of counsel, but suggests that his frequent \u201cside-bar\u201d comments violated appellees right to a fair trial. We observe that most of Mr. Malcom\u2019s \u201cside-bar\u201d comments to which appellee objected were casual remarks designed to expedite the proceedings or were referrals to previous testimony.\nThis court has held that the misconduct of the prevailing party includes the misconduct of the prevailing party\u2019s attorney. Hacker v. Hall, 296 Ark. 571, 759 S.W.2d 32 (1988). This case can be compared to Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986), where we held that a new trial should have been granted because prejudice resulted from the cumulative effect of opposing counsel\u2019s conduct. In that case, counsel did not cease his unreasonable courtroom conduct, even though he was repeatedly admonished and the trial court repeatedly sustained objections to his leading questions.\nThe conduct in this case does not rise to the level of Alexander v. Chapman. It is clear from a review of the abstract that in this case counsel for the plaintiff and the defendant were vigorously and professionally advocating the interests of their clients. The trial court maintained a firm control over the proceeding and we are unable to find any reasonable possibility of prejudice against appellee\u2019s rights to a fair trial resulting from the actions of appellant\u2019s attorney. Absent any showing that counsel\u2019s conduct prevented appellee from having a fair trial, the trial court\u2019s action in ordering a new trial for that reason was a manifest abuse of discretion.\nWe next consider whether the trial court abused its discretion in setting aside the jury verdict and ordering a new trial on the ground that its own errors in the conduct of the trial prevented appellee from having a fair trial. We first address the issue whether the trial court committed error which deprived appellees of a fair trial by failing to strike Dr. Ossama Al-Mefty\u2019s testimony. As in the examples referred to during the qualification of Dr. Friedman as an expert, it appeared that appellee\u2019s attorney, through frequent objections, most of which were sustained by the court, insisted upon great precision in phrasing questions and answers. While this high standard of precision resulted in numerous objections, we have not found any examples where the answers provided by Dr. Al-Mefty, or the rulings of the trial court constituted irregularities in the proceedings which prevented appellee from having a fair trial. However, appellee asserts that the cumulative effect of all of appellee\u2019s objections may have had that result. We cannot agree with that argument. It is apparent that in many instances Dr. Al-Mefty, whose primary language is not English, was seeking to answer fully and completely. The trial court imposed sufficient discipline upon his answers to ensure that the appellee was not prevented from having a fair trial because of Dr. Al-Mefty\u2019s tendency to ramble. While Dr. Al-Mefty exhibited some reluctance to give answers during cross examination, the trial court guided and prodded with the result being that the appellee ultimately obtained an answer to each question.\nWe have stated that \u201c[a] verdict may not be set aside arbitrarily and without reasonable cause.\u201d Martin v. Blackmon, 277 Ark. 190, 195, 640 S.W.2d 435,437 (1982); see also Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S.W.2d 585 (1961). Granting a new trial on the basis that a witness was generally \u201cnonresponsive\u201d is arbitrary and unreasonable. It invites abuse and threatens the right of trial by jury. In practical effect it permits the trial court to substitute its view of the evidence for that of the jury. See Razorback Cab of Fort Smith v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993).\nIt is well established that the trial court should not substitute its view of the evidence for that of the jury. There is no disagreement that the grounds for granting a new trial (a) because of the conduct of appellee\u2019s counsel, and (b) because the trial court decided it committed error in not striking the testimony of Dr. Al-Mefty did not reflect a material irregularity which prevented appellee from having a fair trial. Therefore, the decision of the trial court in ordering a new trial on those grounds was a manifest abuse of discretion.\nWe now turn to the trial court\u2019s determination that it erred in refusing to order a mistrial because Dr. William Friedman\u2019s unresponsive answers and side-bar comments should have resulted in a mistrial, and that the trial court\u2019s failure to order a mistrial was a substantial irregularity that prevented appellee from having a fair trial.\nIn addressing the issue of whether the comments by Dr. Friedman prevented appellee from having a fair trial, we note that much of the dispute centered upon the standard of care, and testimony by a witness for the plaintiff that a \u201ctin-foil\u201d test should have been used. Not only Dr. Friedman, but Dr. Graves Hernsberger, Dr. Edgardo Angtuaco, and Dr. Paul Wills, as well as Dr. Suen and Dr. Al-Mefty testified that Dr. Suen performed the surgery according to the appropriate standard of care. After qualifying as an expert witness, Dr. Friedman testified that if he had been handling the operation he would have followed similar procedures to those employed by the appellant. Fie stated that the standard of care used by appellant was the \u201cstandard of care for ENT surgeons in Little Rock, Arkansas in 1986.\u201d This testimony was eventually stricken and the jury instructed to ignore it. No prejudice to appellee resulted from this ruling.\nDr. Friedman was abrasive while on the witness stand; at one point he testified with reference to the \u201ctin-foil\u201d test \u201cthat a lie had been perpetrated on this court\u201d by an expert witness for appellee. Appellee moved that the testimony be stricken or in the alterative for a mistrial. The testimony was stricken and the jury was instructed to disregard it. Several expert witnesses for appellant agreed that a \u201ctin-foil\u201d test was not referenced in the literature. It is clear that Dr. Friedman was unresponsive and resistant to answering hypothetical questions which were predicated upon assumptions that he could not accept as correct and the trial court struck his testimony. After Dr. Friedman\u2019s entire testimony had been stricken, appellee never renewed his motion for a mistrial, at that point or thereafter, and when appellant moved for a mistrial, appellee responded: \u201cI believe that the court was justified in the position that it took.\u201d The trial court utilized an extreme remedy in striking all of Dr. Friedman\u2019s testimony, and appellee agreed that the matter was properly handled. We find no reasonable possibility that appellee was prejudiced, or prevented from having a fair trial because of Dr. Friedman\u2019s testimony, all of which had been stricken. The trial court did not commit an error in failing to order a mistrial.\n\u201cA mistrial is a proceeding that has miscarried and the consequence is not a trial.\u201d Midwest Line Co. v. Independence County Chancery Court, 261 Ark. 695, 702, 551 S.W.2d 537, 540 (1977). \u201cA new trial is defined by statute as a reexamination in the same court of an issue of fact after a verdict by a jury or a decision by the court.\u201d Id. at 701-02, 551 S.W.2d at 540. It seems clear that the decision by the trial court during the trial that Dr. Friedman\u2019s unresponsive answers and side-bar comments did not call for a mistrial was correct.\nThe trial court exercised great discipline and required strict compliance with rules of procedure. When confronted with difficult decisions, such as striking appellant\u2019s main expert witness, removing appellant\u2019s counsel from the courtroom, and sustaining objections to, and striking portions of the testimony of other witnesses for the appellant, the court reacted in such a way as to ensure that appellee received a fair trial.\nBecause we find in this case no reasonable possibility that appellee was deprived of a fair trial by reason of the conduct of appellant\u2019s attorney, or by the actions of the trial court in failing to grant a mistrial, and failing to strike Dr. A-Mefty\u2019s testimony, we conclude that the order of the trial court granting a new trial on those grounds was a manifest abuse of discretion, and reverse and dismiss this appeal. Since we uphold the jury verdict and overrule the grant of the motion for a new trial, the venue issue raised in the alternative is moot.\nReversed and dismissed.\nNewbern, Glaze, and Imber, JJ., dissent.", "type": "majority", "author": "Ray Thornton, Justice." }, { "text": "Tom Glaze, Justice,\ndissenting. This case is one where the trial court granted a new trial, and this court\u2019s standard is simple \u2014 in granting the new trial, did the judge manifestly and clearly abuse his discretion by acting improvidently or thoughtlessly without due consideration? The majority court says yes, but if the majority was right, based upon the record before us now, a judge could never order a new trial.\nIn pertinent part, Rule 59(a) provides that a new trial may be granted (1) for any irregularity in the proceeding which caused the party from having a fair trial, or (2) for jury or party misconduct. Here, as the majority court concedes, the defendant\u2019s medical expert witnesses, Doctors Sam Al-Mefty and William Friedman, were reluctant to answer questions on cross-examination, and indeed, Friedman openly and defiantly refused to respond to questioning. Both of these doctors had willingly and convincingly given testimony on direct examination that not only was designed to establish the defendant\u2019s, Dr. James Y. Suen\u2019s, competence (lack of negligence) in his performance of plaintiff Kenneth Greene\u2019s surgery, but also was designed to impeach and discredit Greene\u2019s expert witnesses, Doctors Martin Lazar and Roger Rose. As the majority opinion relates, \u201cDr. Friedman was unresponsive and resistant to answering hypothetical questions which were predicated upon assumptions he could not accept as correct.\u201d\nMost important, Dr. Friedman, in challenging Greene\u2019s case and medical experts, accused Dr. Rose of \u201cinventing a tin-foil test for this case,\u201d and when referring further to the test, told the jury, \u201cI feel a terrible lie has been perpetrated in this court.\u201d After this last Friedman remark, the trial judge recessed and met with counsel in conference to study and consider his options in minimizing the remark\u2019s prejudicial impact on the jury. At defense counsel\u2019s urging, the judge rejected Greene\u2019s motion for mistrial, and instead framed a cautionary instruction by which he informed the jury that Dr. Friedman was wrong in making his remark that a lie had been perpetrated, and the jury should not consider it. The judge\u2019s instruction was to no avail because Friedman, on further questioning by plaintiffs counsel, refused to answer plaintiffs hypothetical questions that tended to place blame on Dr. Suen for plaintiffs injury. He said, \u201cI can\u2019t make those assumptions because it\u2019s too hard, given what I know.\u201d\nWhile the trial judge instructed the jury that Dr. Friedman\u2019s testimony \u201cwill be stricken from the record\u201d and directed the jury not to consider it, this court has repeatedly reversed cases because the \u201cmetaphorical or proverbial bell\u201d had been rung and prejudice ensued from the improper remarks. See Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997); Synergy Gas Corp. v. Lindsey, 311 Ark. 265, 843 S.W.2d 825 (1992). Here, if any \u201clie\u201d or fraud occurred in this case, that was within the province of the jury, not for Friedman, to decide.\nIn addition to the pernicious remarks made by Dr. Friedman, the trial judge had to decide, when faced with Greene\u2019s new trial motion, if Greene had been prevented from having a fair trial because of Al-Mefty\u2019s and Friedman\u2019s misconduct by refusing to answer questions on cross-examination. In reviewing the trial judge\u2019s ruling that Greene had been denied a fair trial and was entided to a new trial, it becomes this court\u2019s duty to determine if the judge acted improvidently or thoughtlessly without due consideration. This court further is guided by the controlling principle that a showing of a judge\u2019s abuse of discretion in this respect is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). And finally, this court gives deference to the trial judge in these new-trial matters because the judge has heard all the testimony and was in a position far superior to ours to know whether the proof was so nearly balanced that the misconduct of a witness and juror might have tipped the scales one way or another. Moody Equip. & Sup. v. Union Nat\u2019l Bk., Adm\u2019r, 273 Ark. 319, 619 S.W.2d 637 (1981). As Justice George Rose Smith stated in Moody, \u201cIt is fundamental that the latitude of the trial judge\u2019s discretion increases proportionately as the situation presents to him a question that cannot equally be presented to us by the printed record.\u201d\nHere, Dr. Friedman\u2019s credentials are impeccable, and the importance of his testimony cannot be overstated. Again, he not only served to bolster Dr. Suen\u2019s theory of the case that Suen did not commit malpractice, Friedman also attacked the medical testimony and opinions given by Greene\u2019s doctors. When he refused to answer questions on cross-examination, plaintiffs counsel was denied any opportunity to test Friedman\u2019s opinions and other damaging remarks.\nEven defense counsel recognized the import of Friedman\u2019s appearance and testimony before the jury when they, too, moved for mistrial after the trial judge struck Friedman\u2019s testimony. In this connection, defense counsel argued that, without Dr. Friedman\u2019s testimony, defendant was deprived of a fair trial. Although defense counsel was likely correct in this regard, the trial judge in granting plaintiff a mistrial recognized the corresponding effect and prejudice to plaintiff when plaintiff was denied the opportunity to test Friedman\u2019s direct testimony. In these circumstances, the trial judge was clearly in the best position to hear the defendant\u2019s expert witnesses and to observe the impact of their continuing misconduct before the jury. The trial judge made a fair decision and should be affirmed.\nIn short, the majority is in an impossible position to weigh and determine the impact Friedman\u2019s remarks had on the jury; nor is this court positioned to balance the testimonies of all the expert witnesses and how the trial\u2019s outcome could have been affected by Friedman\u2019s testimony after it was stricken. To ask the jury to forget and not consider such prejudicial testimony was a worthless admonition. To his credit, the trial judge reached that conclusion when confronted with the issue on Greene\u2019s new-trial motion.\nIn conclusion, I note that the majority mentions that Greene did not renew his motion for mistrial after Friedman\u2019s testimony was stricken. However, I want to make it clear that the majority does not conclude Greene waived his objections, nor does it cite cases in support of such an idea. Greene twice moved for mistrial, and twice his motions were denied. He was not required again to move for mistrial. The majority reference in this respect is irrelevant.\nFor the foregoing reasons, I would affirm.\nNewbern and Imber, JJ., join this dissent.", "type": "dissent", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: Charles R. Ledbetter; and Friday, Eldredge & Clark, by: Philip Malcom and Robert S. Shafer, for appellant.", "Robert S. Blatt; Morgan & Weisbrod, by: Les Weisbrod, Michael S. Box, and William A. Newman; and The Keenan Law Firm, by: Don C. Keenan, for appellee." ], "corrections": "", "head_matter": "Dr. James Y. SUEN v. Kenneth GREENE\n96-702\n947 S.W.2d 791\nSupreme Court of Arkansas\nOpinion delivered July 11, 1997\nShaw, Ledbetter, Hornberger, Cogbill & Arnold, by: Charles R. Ledbetter; and Friday, Eldredge & Clark, by: Philip Malcom and Robert S. Shafer, for appellant.\nRobert S. Blatt; Morgan & Weisbrod, by: Les Weisbrod, Michael S. Box, and William A. Newman; and The Keenan Law Firm, by: Don C. Keenan, for appellee." }, "file_name": "0455-01", "first_page_order": 479, "last_page_order": 493 }