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                ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CV-14-930


ROCHELLE THOMPSON and                            Opinion Delivered   AUGUST 26, 2015
TIMOTHY THOMPSON
                 APPELLANTS                      APPEAL FROM THE JEFFERSON
                                                 COUNTY CIRCUIT COURT
V.                                               [NO. CV-11-571]

                                                 HONORABLE JODI RAINES
TYSON FOODS, INC.                                DENNIS, JUDGE
                                 APPELLEE
                                                 REVERSED AND REMANDED


                             DAVID M. GLOVER, Judge


       Timothy Thompson was employed by Tyson Foods in September 2008 when he

began exhibiting signs of confusion as he was clocking out from his late-night shift at

approximately 2:00 a.m. A concerned fellow employee took him to the nursing station,

which federal regulations undisputedly require Tyson to provide. The licensed practical nurse

administered a drug test, which was negative, but did not take Timothy’s vital signs and did

not summon emergency-medical personnel. Rather, Timothy was driven home. His wife,

appellant Rochelle Thompson, subsequently drove him to the hospital. At approximately

6:00 a.m., Timothy suffered a major stroke and remains paralyzed on his right side. He filed

a complaint against Tyson, alleging three counts of negligence and one count of breach of

implied contractual obligations. He appeals from the trial court’s grant of summary judgment

in favor of Tyson Foods, Inc. We reverse and remand.
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                                    Procedural Background

       The Thompsons filed their complaint against Tyson Foods on September 16, 2011.

It alleged three counts of negligence based on 1) lack of training, supervision, and

monitoring; 2) failure to provide emergency medical treatment; and 3) failure to provide

appropriate medical assistance. It also alleged the breach of implied contractual obligations.

       Tyson filed its motion for summary judgment on September 19, 2013. The motion

argued that the complaint constituted a medical-malpractice case against Tyson; that the only

expert identified by the Thompsons was a registered nurse, who was not qualified to give an

expert opinion on the element of proximate causation pursuant to Arkansas Code Annotated

section 16-114-206 and Ark. R. Evid. 702; that the report from Dr. Hank Simmons, which

was attached to the motion as an exhibit, opined that there was no causal connection

between any act or omission by Tyson and Timothy’s alleged medical injuries; and that,

accordingly, Timothy could not meet his “burden of proof under the AMMA [Arkansas

Medical Malpractice Act] as a matter of law, and [could not] meet proof with proof as

required by Rule 56 of the Arkansas Rules of Civil Procedure,” entitling Tyson to summary

judgment.

       On November 5, 2013, the Thompsons filed their response to the motion for

summary judgment. They contended that Tyson Foods was not a medical-care provider as

defined by section 16-114-201(2); that this action was not one for medical injury arising out

of or sustained in the course of the professional services rendered by a medical-care provider;

and that, accordingly, the Medical Malpractice Act was not applicable. Instead, they


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countered that this was an action against Tyson for negligence and breach of implied

contract; that they had previously identified the registered nurse as their expert, but in light

of Tyson coming forward with Dr. Simmons, they also identified Dr. Bob Gale, to respond

to Dr. Simmons’s report; that material issues of fact remained regarding whether Timothy’s

injuries were proximately caused by Tyson’s negligence; and that, accordingly, Tyson was

not entitled to summary judgment.

       Dr. Gale’s deposition was taken in February 2014. On April 10, 2014, Tyson filed

a “Supplemental Brief in Support of Motion for Summary Judgment and Motion to Strike

Plaintiff’s Expert Dr. Bob Gale.” In the supplemental brief, Tyson maintained the position

that this was a medical-malpractice case and argued that Dr. Gale was not qualified to provide

the requisite expert testimony on causation and that he must be stricken as an expert in this

case. In addition, Tyson argued that even if Dr. Gale were qualified to testify, he could not

testify regarding the issue of causation within a reasonable degree of medical certainty as

required by Arkansas law. Included in the exhibits Tyson attached to its supplemental brief

were Dr. Gale’s curriculum vitae and deposition.

       In a nutshell, Dr. Simmons’s report concluded that Timothy was not a candidate for

the thrombolytic (clot-busting) agent and nothing Tyson did, or did not do, proximately

caused his injuries. Dr. Gale’s deposition, on the other hand, concluded that Tyson did not

provide Timothy with the opportunity for appropriate treatment that more likely than not

would have helped him avoid the injuries he suffered. Dr. Gale explained that Timothy was

not given the thrombolytic agent because the hospital physicians presumed it was beyond the


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three-hour time frame, but stated, “If we take what happened after they started the

treatment, only started it at 2:40 or 2:45 or actually a little bit earlier in the ambulance, then

it’s more likely than not, to a reasonable degree of medical certainty, that they would have

offered the TPA [thrombolytic drug].”

       A hearing on Tyson’s motion for summary judgment was held on May 22, 2014, with

counsel for both sides presenting their arguments for and against summary judgment. On

July 21, 2014, the trial court entered its order, which provided:

              On May 22, 2014, the Court heard arguments from counsel for both parties
       regarding the Motion for Summary Judgment of Tyson Foods, Inc. currently
       pending. After reviewing all filings and evidence of both parties and considering the
       arguments made at that hearing, the Court hereby orders that the Motion for
       Summary Judgment of Tyson Foods, Inc. is GRANTED. This case is dismissed with
       prejudice pursuant to Rule 56 of the Arkansas Rules of Civil Procedure.

The motion to strike Dr. Gale’s testimony was never ruled upon.

                                           Discussion

       The Thompsons challenge the trial court’s grant of summary judgment to Tyson

Foods, Inc. We find merit in the argument that the trial court erred in granting summary

judgment.

       A circuit court may grant summary judgment only when it is clear that there are no

genuine issues of material fact to be litigated and that the party is entitled to judgment as a

matter of law. Druyvestein v. Gean, 2014 Ark. App. 559, 445 S.W.3d 529. The burden of

sustaining a motion for summary judgment is always the responsibility of the moving party.

Id. Once the moving party has established prima facie entitlement to summary judgment by

affidavits, depositions, or other supporting documents, the opposing party must meet proof

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with proof and demonstrate the existence of a material issue of fact. Id. When the proof

supporting a motion for summary judgment is insufficient, there is no duty on the part of the

opposing party to meet proof with proof. Id. Summary judgment is not granted because the

opposing party fails to respond to the motion. Id. On appellate review, we determine if

summary judgment was appropriate based on whether the evidentiary items presented by the

moving party in support of its motion leave a material fact unanswered. Id. This court views

the evidence in a light most favorable to the party against whom the motion was filed,

resolving all doubts and inferences against the moving party. Id.

       Here, the major thrust of Tyson’s motion for summary judgment was its contention

that the case against it was a medical-malpractice case, and, as such, it was governed by

Arkansas Code Annotated sections 16-114-201 et seq. Tyson argued that the only expert

identified by the Thompsons at that time was a registered nurse; that a registered nurse was

not qualified to give expert causation testimony in a medical-malpractice case, citing section

16-114-206(a)(3); that without expert causation testimony, it was impossible for the

Thompsons to “meet their legal burden of proof in this case as defined by the AMMA

[Arkansas Medical Malpractice Act]”; and that the report of Dr. Hank Simmons, attached to

the motion, opined that there was no causal connection between any act or omission of

Tyson and Timothy’s alleged medical injuries.

       The grant of summary judgment, quoted previously, provides us with no explanation

for the basis upon which it was granted. We have no way of knowing whether the trial

court accepted the premise that this is a medical-malpractice case, or whether it accepted the


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alternative argument offered by Tyson in its reply that, regardless of whether it was treated

as a medical-malpractice case, the Thompsons had not met proof with proof, i.e., the

Thompsons had not provided proof to rebut Dr. Simmons’s report.

       Dr. Simmons’s report, which was in the form of a May 31, 2013 letter from him to

defense counsel, was not a deposition, was not an affidavit, nor was it submitted as an exhibit

to an affidavit from Dr. Simmons. However, the Thompsons never challenged the “proof”

offered by Tyson to support its motion for summary judgment; rather, the primary focus of

their response was to argue that the Medical Malpractice Act was not applicable to this case,

followed by the assertion that in light of Tyson presenting evidence from Dr. Simmons, they

would be presenting Dr. Bob Gale, to respond. Dr. Gale’s deposition was subsequently

taken, and it was Tyson that actually put Gale’s deposition before the trial court by attaching

it to Tyson’s reply.

       Thus, at the end of the summary-judgment-motion process and in spite of the

unconventional manner in which the “proof” was received, the trial court had before it an

unsworn report from Dr. Simmons, which concluded that Timothy was not a candidate for

receiving a thrombolytic agent, and a deposition from Dr. Gale, which concluded that Tyson

did not provide Timothy with the opportunity for appropriate treatment, including the

opportunity to receive the thrombolytic drug, that more likely than not, to a reasonable

degree of medical certainty, would have helped him. Although we have questions about the

applicability of the Medical Malpractice Act in this case, on the record that is before us, we

decline to rule on that issue. We do, however, conclude that the evidence presented to the


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trial court demonstrated that a material issue of fact regarding causation existed in this case.

We hold, therefore, that the trial court erred in granting summary judgment.

       Reversed and remanded.

       HARRISON and KINARD, JJ., agree.

       Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellants.

       Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Benjamin D. Jackson and Brian
A. Pipkin, for appellee.




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