Christine Turner v. Garry Stewart, M.D. ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1469
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Christine Turner, Special Administrator of the Estate of Linda Warner, Deceased
other Linda Warner
lllllllllllllllllllllPlaintiff - Appellee
v.
Faulkner County, Arkansas; Chris Riedmueller; Tim Ryals; Bobbie Spivey; Anita
Wright; Michelle Maher; Teresa Coleman; Maria Hill; Taylor Haney; Eric
Whitcomb; Marissa Parks; Katie Martin; Anna Pope; Christopher Lisembey-Hall;
Thaf Kilpatrick; Tyroneisha Collins; Malik Clemons; Calene Scott; Taneisha
Jernigan; Leanne Dixon
lllllllllllllllllllllDefendants
Garry Stewart, M.D.
lllllllllllllllllllllDefendant - Appellant
Karen Grant, L.P.N.; Monte Munyan, L.P.N.; Does, 1-10; Karen Munyan, In her
capacity as special administrator of the estate of Monte Munyan, Deceased other
Monte Munyan
lllllllllllllllllllllDefendants
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No. 22-1492
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Christine Turner, Special Administrator of the Estate of Linda Warner, Deceased
other Linda Warner
lllllllllllllllllllllPlaintiff - Appellant
v.
Faulkner County, Arkansas; Chris Riedmueller; Tim Ryals; Bobbie Spivey; Anita
Wright; Michelle Maher; Teresa Coleman; Maria Hill; Taylor Haney; Eric
Whitcomb; Marissa Parks; Katie Martin; Anna Pope; Christopher Lisembey-Hall;
Thaf Kilpatrick; Tyroneisha Collins; Malik Clemons; Calene Scott; Taneisha
Jernigan; Leanne Dixon
lllllllllllllllllllllDefendants
Garry Stewart, M.D.
lllllllllllllllllllllDefendant - Appellee
Karen Grant, L.P.N.; Monte Munyan, L.P.N.; Does, 1-10; Karen Munyan, In her
capacity as special administrator of the estate of Monte Munyan, Deceased other
Monte Munyan
lllllllllllllllllllllDefendants
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Appeals from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: April 12, 2023
Filed: August 24, 2023
[Published]
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Before COLLOTON, WOLLMAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Linda Warner’s appendix ruptured during her incarceration, and she
subsequently died from sepsis. Christine Turner, as special administrator of Warner’s
estate, filed suit against the county in which Warner was incarcerated, as well as
against the individuals involved in her incarceration and medical care, alleging civil
rights claims under 42 U.S.C. § 1983 and tort claims under state law. The medical
malpractice claim against the jail physician, Dr. Garry Stewart, went to trial. All
other claims were settled for $500,000. Stewart moved for judgment as a matter of
law at the close of Turner’s evidence. The district court1 granted the motion, in part,
concluding that Turner had not submitted evidence sufficient to support punitive
damages. The jury returned a verdict for Turner and awarded $1.3 million in
damages. The district court granted Stewart a credit against the verdict for the value
of the settlement, amending the judgment to $800,000.
Stewart appeals the denial of judgment as a matter of law on the medical
malpractice claim. Turner appeals the grant of judgment as a matter of law on the
punitive damages claim, as well as the grant of credit against the verdict. We affirm.
Medical Malpractice
We review de novo the district court’s denial of a motion for judgment as a
matter of law. Ryan Data Exch., Ltd. v. Graco, Inc., 913 F.3d 726, 732 (8th Cir.
2019). The court may grant judgment as a matter of law when a party, after being
fully heard, has failed to establish a “legally sufficient evidentiary basis” for her
claim. Fed. R. Civ. P. 50(a)(1). Such motion “may be made at any time before the
1
The Honorable D.P. Marshall, Jr., United States District Judge for the Eastern
District of Arkansas.
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case is submitted to the jury.” Fed. R. Civ. P. 50(a)(2). If the court does not grant the
motion at that time, the movant may file a renewed motion for judgment as a matter
of law after the entry of judgment. Fed. R. Civ. P. 50(b).
Stewart moved for judgment as a matter of law at the close of Turner’s case-in-
chief and again at the close of all the evidence. He argued, as relevant here, that
Turner’s expert witness had not established the applicable standard of care in the
locality at issue, as required by Arkansas’ so-called “locality rule.” See Ark. Code
Ann. § 16-114-206(a)(1) (requiring the plaintiff to prove “the degree of skill and
learning ordinarily possessed and used by members of the profession of the medical
care provider in good standing, engaged in the same type of practice or specialty in
the locality in which he or she practices or in a similar locality”). The district court
denied the motions, and Stewart did not renew his motion under Rule 50(b) after
judgment was entered.
Turner argues that we have no basis to review the motion for judgment as a
matter of law because Stewart did not renew it after judgment was entered against
him. See Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407
(2006) (holding that “since respondent failed to renew its preverdict motion as
specified in Rule 50(b), there was no basis for review of respondent’s sufficiency of
the evidence challenge in the Court of Appeals”). Stewart contends that he was not
required to renew his motion because it raised a question of law for the court to
decide—i.e., whether Turner’s expert established the standard of care in the locality
in which the care was provided. We do not address this argument because we
conclude that Stewart has, in effect, challenged the sufficiency of the evidence to
support the standard-of-care element of Turner’s medical malpractice claim. He thus
was required to renew his motion to preserve the issue for appeal.
Under Arkansas law, the local standard of care is an element of a medical
malpractice claim. See Gambill v. Stroud, 531 S.W.2d 945, 949 (Ark. 1976) (“The
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opportunities available to practitioners in a community are certainly matters of fact
and not law and may be shown by evidence under our own locality rule.”) The
Arkansas Model Jury Instructions thus require the jury to “determin[e] the degree of
skill and learning the law required.” AMI 1501. A malpractice-claim plaintiff must
establish that a physician failed to apply with reasonable care the degree of skill and
learning ordinarily used by physicians in the same or similar locality. The district
court gave the model instructions in this case, which are presumed to be correct.
Thomas v. State, 257 S.W.3d 92, 103 (Ark. 2007). Whether Turner’s expert’s
testimony satisfied the locality rule thus was a question of fact that was submitted to
the jury, which necessarily found by its verdict that the rule had been satisfied.
Stewart misreads Williamson to mean that satisfaction of the locality rule is a
“pure question of law” that is considered only by a judge. Williamson ruled only that
failure to prove the local standard of care is not an objection that must be raised
during the testimony of an expert witness. 72 S.W.3d at 492. Rather, the issue may
be raised in a motion for directed verdict. Id. As the Arkansas Court of Appeals later
explained, the establishment of the local standard of care is not a matter of
“foundation” (i.e., not an evidentiary-type objection), but rather “an issue going to
sufficiency of the evidence” that may be raised in a motion for directed verdict.
Heritage Physician Grp., P.A. v. Minton, 432 S.W.3d 682, 686 (Ark. Ct. App. 2014).
Consistent with Heritage, Stewart did not argue that the expert’s testimony was
inadmissible; he raised only a sufficiency argument. See Appellant’s Br. 13 (“Dr.
Stewart did not move to disqualify Dr. Fowlkes as unqualified under the Federal
Rules of Evidence. He moved for directed verdict because Turner failed to meet her
burden of proof.”). His argument thus required a renewed motion for judgment as a
matter of law to be preserved for appeal. Because Stewart did not renew his motion,
he did not preserve his challenge to the sufficiency of the evidence and thus we do
not reach the merits of his appeal.
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Punitive Damages
Turner argues that she was entitled to have the jury decide whether to award
punitive damages. The punitive damages question must be submitted to the jury if
there is “substantial evidence to support a punitive damages instruction.” Stein v.
Lukas, 823 S.W.2d 832, 834 (Ark. 1992); Lockley v. Deere & Co., 933 F.2d 1378,
1389 (8th Cir. 1991) (looking to state law for standard). Substantial evidence is that
which is “of sufficient force and character to compel a conclusion one way or the
other with reasonable certainty.” D’Arbonne Constr. Co. v. Foster, 123 S.W.3d 894,
897 (Ark. 2003). A jury may award punitive damages when the plaintiff has shown
that the “defendant knew or ought to have known, in light of the surrounding
circumstances, that his or her conduct would naturally and probably result in injury
or damage and that he or she continued the conduct with malice or in reckless
disregard of the consequences, from which malice may be inferred.” Ark. Code Ann.
§ 16-55-206(1).
Turner argues that the evidence supports the instruction because it creates an
inference that Stewart knew that Warner had a serious medical problem but did not
treat her. Warner was in fact offered treatment for her known medical needs,
including her diabetes, incontinence, and rash. Stewart did not examine her when she
came for an appointment because he considered her uncooperative, but he prescribed
Prozac to address her behavior and followed up with her family doctor to discuss it.
Warner did not complain of abdominal pain, and Stewart did not know of her
appendicitis. The evidence thus does not “compel a conclusion . . . with reasonable
certainty” that Stewart acted with malice or reckless disregard of the consequences
of his conduct such that malice could be inferred. See D’Arbonne Constr. Co., 123
S.W.3d at 897.
Turner argues in the alternative that the district court erred in limiting the
testimony of her expert witness, Dr. Thomas Fowlkes. After Fowlkes described
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Stewart’s conduct as “reckless,” the court instructed him not to use legal terms,
though it did not strike the testimony. We find no abuse of discretion in the district
court’s limitation of the expert’s testimony. Jacobson Warehouse Co., Inc. v.
Schnuck Mkts., Inc., 13 F.4th 659, 675 (8th Cir. 2021) (standard of review).
Although Fowlkes was not permitted to express his opinion in legal terms such as
“reckless” or “negligent,” he nevertheless offered ample testimony regarding
Stewart’s conduct and any deviations from the standard of care. We do not believe
that the court’s decision to preclude the use of legal terms like “reckless” would have
had any bearing on its decision to grant judgment as a matter of law on punitive
damages.
Credit Against the Verdict
Turner appeals the district court’s decision to give Stewart a credit against the
verdict for the amount of settlement, arguing that Stewart and the settled parties were
not joint tortfeasors and so Arkansas’s Uniform Contribution Among Tortfeasors Act
(UCATA) does not apply. UCATA requires the court to reduce the damages
recoverable against a defendant when the plaintiff releases a joint tortfeasor. Ark.
Code Ann. § 16-61-204(c). Joint tortfeasors are those “who may have joint liability
or several liability in tort for the same injury to person or property, whether or not
judgment has been recovered against all or some of them.” Id. § 16-61-201(1). We
review de novo the district court’s application of state law. Cnty. of Ramsey v.
MERSCORP Holdings, Inc., 776 F.3d 947, 950 (8th Cir. 2014).
Turner’s complaint alleged claims against Faulkner County, the Faulkner
County Sheriff, officers at the Faulkner County Detention Center (FCDC), and
medical staff at FCDC (collectively, the Faulkner County Defendants), as well as
Stewart, the FCDC’s contract physician. The complaint included § 1983 claims
against all defendants for deliberate indifference to serious medical needs, cruel and
unusual punishment, and equal protection violations; a negligence claim against all
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defendants; and a medical malpractice claim against medical staff and Stewart.
Turner’s complaint alleged that each of these claims resulted in Warner’s pain,
suffering, and death; she also alleged that the medical malpractice and negligence
claims resulted in bodily harm. Turner and the parties reached a settlement agreement
resolving all claims except the medical malpractice claim against Stewart.
Turner argues that Stewart and the Faulkner County Defendants were not joint
tortfeasors because they were not liable for the same injury. With respect to the
§ 1983 claims, she argues that the constitutional violations occurred at a different
time and independently of Stewart’s medical malpractice. Timing is not dispositive
of the joint tortfeasor question, however. In Applegate v. Riggall, a patient sued her
physician for medical malpractice after he allegedly damaged her ureter during
surgery, requiring her to undergo a second surgery for the removal of her kidney. 318
S.W.2d 596, 597 (Ark. 1958). The physician filed a third party complaint against the
physician who removed the kidney, arguing that the second physician’s negligent
diagnosis and recommendations led to the unnecessary removal of the kidney and the
related harms. Id. at 598. The Supreme Court of Arkansas wrote,
The sole question to be determined is simply whether [the second
physician] is a proper party defendant in this action. [He] argues that the
two doctors cannot be held to be joint tortfeasors, because any alleged
injuries received from either by plaintiff were separate and distinct
injuries; that under the law, tortfeasors, acting independently, are jointly
liable to a plaintiff, and liable to each other in contribution, only when
the independent acts of each, cause or contribute to the same injury
obtained by a plaintiff. We consider the latter assertion to be a correct
statement of the law, but even so, we do not agree that [the first
physician] is precluded from filing his third party complaint. While it
is true that a part of plaintiff’s complaint deals with alleged injuries
occurring before [the second physician] entered the picture, nonetheless,
it is apparent from reading the portions of the complaint heretofore
quoted, that a substantial part of the damage complained of was
allegedly caused by the loss of the kidney. In other words, the suit is
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based upon all the injuries received by plaintiff, and suffering
occasioned thereby.
Id.2
Applying Applegate here, we conclude that Stewart and the Faulkner County
Defendants caused the same injuries. Like the plaintiff in Applegate, Turner’s
original suit against the Faulkner County Defendants was based on all of her injuries,
a substantial part of which were allegedly caused by Stewart. Even if some of her
injuries occurred prior to or independently of Stewart’s conduct, Arkansas law does
not preclude the Faulkner County Defendants from being joint tortfeasors. We
conclude that Stewart and the Faulkner County Defendants were liable for the same
injuries and were thus joint tortfeasors with regard to the § 1983 claims.
Moreover, it matters not that separate wrongdoings caused Warner’s
injuries—that is, that the § 1983 claims arose from constitutional violations and the
medical malpractice claims arose from negligence. UCATA does not focus on the
cause of the injury or the policy reason for imposing liability. It focuses on the injury,
which Turner has alleged is the same for the § 1983 claims as it is for the medical
malpractice claim.
Finally, Turner argues that because the Faulkner County Defendants were not
liable for the negligence and medical malpractice claims, they could not be joint
tortfeasors with Stewart. See Indus. Iron Works, Inc. v. Hodge, 595 S.W.3d 9, 12
(Ark. Ct. App. 2020) (A nonparty that is statutorily immune from liability in tort
“cannot have joint or several ‘liability’ in tort and therefore does not meet the
definition of ‘joint tortfeasor’ in the UCATA.”). Arkansas counties are statutorily
“immune from liability and from suit for damages except to the extent that they may
2
Although post-Applegate the statutory definition of “joint tortfeasor” has been
amended and recodified, the definition does not differ in any way material to this
case.
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be covered by liability insurance.” Ark. Code Ann. § 21-9-301(a). Before settling
with Turner, the Faulkner County Defendants asserted this immunity as an affirmative
defense, but the issue was never litigated and decided.
We decline to decide whether the defendants would have succeeded in their
affirmative defense had they not settled. Turner asserted that the parties were liable
when she brought her claims. Because the claims raised the same injuries as were
alleged to have been caused by Stewart, the parties were joint tortfeasors. We
conclude that the district court did not err in granting Stewart a credit against the
verdict for the settlement.
The judgment is affirmed.
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