W.H. "Dub" Arnold

“ Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992) . If a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. ”

“ In Jones, we specifically addressed the guideposts for determining whether a trial court has abused its discretion. We noted that although the relevancy and admission of photographs is a matter within the sound discretion of the trial court and that we are highly deferential to that discretion, we have rejected a carte blanche approach to the admission of photographs. ”

“ Accordingly, our review must focus, first, on an issue of law, namely, whether the trial court properly granted Dr. Washington immunity, and, second, on whether there remains any genuine issue of material fact precluding summary judgment.
[17] Article 5, section 20, of the Arkansas Constitution provides that "Nile State of Arkansas shall never be made defendant in any of her courts." Ark. Const. art. 5, § 20, grants sovereign immunity and a general prohibition against awards of money damages in lawsuits against the State of Arkansas and its institutions. ”

“ However, appellant and amid curiae contend that this decision must be overruled to effectuate the remedial purposes of the wrongful-death statute, to bring Arkansas in line with the majority of states that have considered the issue [2] , and, most importantly, to honor subsequent legislative developments suggesting that a viable fetus is a "person." ”

“ Three jurisdictions prohibit an action for an unborn nonviable fetus but have not reached the issue of whether a viable fetus may maintain an action (Alaska, Oregon, and Rhode Island) . Four jurisdictions have no case law on the issue (Colorado, Guam, Puerto Rico, and Wyoming) . Only nine jurisdictions, including Arkansas,reject a wrongful-death action for a viable fetus.
↑ Appellant also points out that Arkansas law enhances responsibility for the crime of battery if the victim is pregnant. ”

“ Appellant next challenges the trial court's decision to exclude an autopsy photograph and Dr. Frank Peretti's related testimony. The decision to admit evidence is within the trial court's discretion. On appeal, we will not reverse a trial court's ruling on the admission of evidence absent an abuse of that discretion nor will we reverse absent a showing of prejudice. ”

“ The Court of Appeals certified this first-impression case for us to consider appellant's arguments urging the reversal of precedent. Specifically, appellant asks this court to overrule our holding in Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995) , that a viable fetus is not a "person" within the meaning of Arkansas's wrongful-death statute. ”

“ Four jurisdictions permit an action, even for unviable fetuses, but have a live birth or stillbirth requirement (Louisiana, Maryland, Oklahoma, and Pennsylvania) . One jurisdiction permits an alternative remedy by allowing an action for damages resulting in stillbirth caused by negligence (Florida) . ”

“ Here, the trial court found that Dr. Washington was, at all relevant times, acting as a uninsured contract employee by supervising family-practice residents for the State of Arkansas. Accordingly, she was granted immunity from suit. Appellant counters that Dr. Washington wore at least two "hats" on the evening Mrs. Aka died. As a result, he posits that the question of which hat Dr. Washington was wearing is an issue for the jury to resolve. We agree. Genuine issues of material fact remain unresolved regarding whether Dr. ”

“ Essentially, appellant's complaint alleged that the defendant doctors' and institutions' medical negligence in unnecessarily inducing his wife's labor, failing to discontinue the induction, failing to perform a cesarean section, failing to resuscitate her or the unborn baby, and failing to obtain informed consent, proximately caused Mrs. Aka's and her unborn son's deaths. Appellant also averred that JRMC's, AHEC's, and AHEC's faculty supervisors' failure to train and supervise AHEC resident physicians proximately caused both deaths. ”