Court of Appeal,

Second District, Division 6, California.

Joshua DAVID, Plaintiff and Respondent,

v.

David HERNANDEZ et al., Defendants and Appellants.

2d Civil No. B270133

|

Filed 7/25/2017

 

*1 David Hernandez and D & H Trucking appeal from a $3.3 million personal injury judgment entered against them.1 Appellant’s truck was involved in a collision with a minivan driven by respondent Joshua David, who sustained serious physical injuries.

 

This is the second appeal in this matter. In the first appeal, we reversed a judgment entered in appellant’s favor after a jury trial. (David v. Hernandez (2014) 226 Cal.App.4th 578, 592, 172 Cal.Rptr.3d 204.)

 

On retrial, the jury found that it is reasonably certain respondent will need four future shoulder surgeries. Appellant concedes that one future shoulder surgery is reasonably certain. He contends that the evidence is insufficient to support the need for three subsequent shoulder surgeries. He also contends that the trial court erroneously excluded expert testimony that respondent’s ability to drive was impaired by marijuana use. We affirm.

 

 

Facts

Appellant is a truck driver. At the time of the collision in June 2010, he was driving a tractor that was hauling a flatbed trailer. The trailer was 45 feet long. It was carrying a load of cement that weighed approximately 45,000 pounds.

 

While traveling northbound on Pacific Coast Highway, appellant drove across the southbound lane and pulled into a parking area next to that lane. The tractor-trailer was facing north against oncoming southbound traffic. Appellant parked and took a nap. When he awoke, it was getting dark. He decided to continue northbound on Pacific Coast Highway. Appellant turned on his lights, drove across the southbound lane, and turned left into the northbound lane.

 

Respondent was driving a minivan southbound on Pacific Coast Highway. The left front of the minivan crashed into the middle of the left side of the flatbed trailer. “The point of impact was squarely in the southbound lane.” At the time of impact, appellant’s truck was traveling at about 10 to 15 miles per hour. The minivan was traveling at about 45 miles per hour.

 

Respondent remembered nothing about the collision. Natalie Pierson was in the front passenger seat of the minivan. She saw the tractor’s headlights in the northbound lane. She then “saw [respondent’s] eyes go big.” She looked forward and saw “a dark object that was right in front of [her]” in the southbound lane. The dark object was the left side of the flatbed trailer. In her “peripheral vision,” Pierson saw respondent “turn the wheel to the right.” The next thing that happened was “the crash.”

 

Respondent “was trapped in the driver’s seat.” It took about 45 minutes to extricate him from the vehicle. His injuries included “an open fracture in his [left] shoulder…. [T]he bone was protruding through the skin.”

 

 

Jury Verdict

On retrial the jury found that appellant was negligent and that his negligence was a substantial factor in causing respondent’s injuries. It also found that respondent was negligent but that his negligence was not a substantial factor in causing his injuries. It awarded respondent damages of $3,317,580. The damages include future medical expenses for four shoulder surgeries at a cost of $161,750 per surgery.

 

 

Respondent’s Motion in Limine to Exclude Expert Testimony

*2 At the first trial the court excluded evidence of respondent’s marijuana use. At the retrial appellant again sought to present expert testimony to show that, at the time of the collision, respondent’s ability to drive was impaired by his consumption of marijuana. Appellant’s expert witness was Dr. Marvin Pietruszka.

 

Respondent filed a pretrial motion in limine to exclude Dr. Pietruszka’s testimony. No live testimony was presented at the hearing on the motion. The parties presented written materials. A “physician progress note” shows that, immediately after the collision, respondent told an emergency-room physician that he had “occasional[ly]” used marijuana but had not consumed it within the past 36 hours.

 

A urine sample was collected from respondent in the emergency room. A urine drug screen was positive for THC (tetrahydrocannabinol). THC is “the psychoactive ingredient” in marijuana. (People v. Bergen (2008) 166 Cal.App.4th 161, 164, 82 Cal.Rptr.3d 577.) There are two types of THC-active (also known as hydroxy THC) and inactive (also known as carboxy THC). During oral argument at the hearing on the motion in limine, respondent’s counsel explained to the trial court: “An active metabolite means that the ingredients are there that can potentially make a person impaired. If it’s an inactive metabolite, that means it’s still there in the fatty tissue, but it’s not doing anything to anybody.” Appellant did not dispute counsel’s explanation.2

 

Respondent’s test result does not show the concentration of THC in his urine or the extent to which the THC is active or inactive. To test positive, the THC concentration had to be at least “50 NG/ML”-50 nanograms per milliliter. The Laboratory Report states: “This urine drug screen provides only a preliminary test result. These results are to be used for medical purposes only. [¶] A more specific alternate chemical method must be used in order to obtain a confirmed analytical result.”3

 

 

Dr. Pietruszka’s Proposed Trial Testimony

Dr. Pietruszka’s proposed trial testimony, as set forth in his deposition, was as follows: In the emergency room after the collision, respondent had “very high blood pressure,” a “rapid pulse,” and a “rapid respiratory rate.” These symptoms, as well as his “loss of memory,” are consistent with being under the influence of marijuana. But stress and traumatic injuries can cause the same symptoms. “Obviously stress plays a role. He was under stress … because of the accident.”

 

*3 Based on the urine drug screen test result, “[w]e know that [respondent] had at least 50” nanograms of THC per milliliter of urine. But “in most … of the positives [positive tests] that [Dr. Pietruszka has] seen, … you can easily find 100 nanograms [of THC per milliliter].”

 

The “active component” of THC “is still found 36 hours later in urine samples” and “could be found up to 48 hours later.” “The literature suggests that … [t]here should have been a small amount of active metabolite in [respondent’s] urine.” But the amount of active metabolite “wasn’t measured.” “[T]he literature supports that there is an effect even 36 hours later, and that effect can translate into a negative effect on driving performance, increased risk of accidents, visual difficulties, a delayed … response braking, and that type of response, reaction time. And that would lead to a motor vehicle accident.”

 

Dr. Pietruszka continued: “[T]he fact that I believe that [respondent] had active THC … in his system …, the fact that he was in an accident, the fact that he’s got tachycardia [rapid pulse], that he’s got high blood pressure, the fact that his respiratory rate is high, he’s got amnesia, he’s got all these symptoms, his visibility could have been reasonably [a]ffected by … the use of THC, his reaction time could be slowed by a drug that reduces reaction time, his attention is decreased, I believe to a reasonable degree of medical certainty, yes, he was under the influence [of marijuana].”

 

 

Declaration of Dr. McGee

Respondent’s expert, Dr. Terence McGee, declared that, based on the urine drug screen test result, “it [cannot] be determined if the THC [in respondent’s urine] is active or inactive.”

 

 

Declaration of Dr. Tinsley

Dr. Robeson Tinsley is an emergency-room physician who treated respondent immediately after the collision. Dr. Tinsley declared: “[B]ased upon my training, expertise and experience, I am aware that THC can be captured in a patient’s urine for weeks after use.” Respondent “showed no evidence of intoxication.” “I believed within a likely degree of medical certainty that the patient was not impaired in any way.”

 

 

Trial Court’s Ruling

The trial court stated: “I don’t think there’s adequate foundation for the conclusions that the defense wants to put on here. So I will grant the motion in limine.” The court reasoned: “[W]e have a problem with what is only a preliminary test and then we have the problem with no foundation to show a connection between the test result … and any impairment. And it appears that [appellant’s] expert would be reasoning backward from the fact that something untoward happened; therefore, somebody must have been impaired.”

 

 

Exclusion of Expert Testimony

[1] [2]“ ‘Evidence Code section 801, subdivision (b), states that a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on “in forming an opinion upon the subject to which his testimony relates.” … We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.’ [Citation.]” (Sargon Enterprises, Inc. v. University of Southern Cal. (2012) 55 Cal.4th 747, 770, 149 Cal.Rptr.3d 614, 288 P.3d 1237 (Sargon).) “Thus, under Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion.” (Ibid.) “ ‘A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.’ [Citation.]” (Id. at p. 771, 149 Cal.Rptr.3d 614, 288 P.3d 1237.)

 

*4 [3] [4] [5]“A trial court exercises discretion when ruling on the admissibility of expert testimony under Evidence Code section 801, subdivision (b). If [as here] the court excludes expert testimony on the ground that there is no reasonable basis for the opinion, we review the exclusion of evidence under the abuse of discretion standard. [Citations.]” (In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564, 10 Cal.Rptr.3d 34.) “The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation] ….” (People v. McDowell (2012) 54 Cal.4th 395, 426, 143 Cal.Rptr.3d 215, 279 P.3d 547.) “A ruling that constitutes an abuse of discretion has been described as one that is ‘so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.]” (Sargon, supra, 55 Cal.4th at p. 773, 149 Cal.Rptr.3d 614, 288 P.3d 1237.)

 

[6]“The trial court properly acted as a gatekeeper to exclude speculative expert testimony. Its ruling came within its discretion.” (Sargon, supra, 55 Cal.4th at p. 781, 149 Cal.Rptr.3d 614, 288 P.3d 1237.) It is a matter of speculation whether respondent was under the influence of marijuana at the time of the collision. Dr. Pietruszka testified that the “active component” of THC “is still found 36 hours later in urine samples” and “could be found up to 48 hours later.” But there is no evidence that respondent used marijuana within 48 hours before he gave the urine sample. Respondent told an emergency-room physician that he had not used marijuana within the past 36 hours. He did not say when he had last used it. According to Dr. Tinsley, “THC can be captured in a patient’s urine for weeks after use.”

 

Dr. Pietruszka opined that, at the time of the collision, respondent had active THC in his system. Appellant argues that Dr. Pietruszka’s opinion is supported by a medical textbook, Marijuana and the Cannabinoids, edited by Mahmoud ElSohly, Ph.D. Appellant asserts: “That book contains data showing that when a urine test uses a threshold of 50 ng/ml of THC-like the test performed on [respondent] – a positive result indicates that both the inactive and active forms of THC are present. A chart in the book shows that for every patient who had a measurement of 50 ng/ml of the inactive metabolite …, that patient also had some amount of the active metabolite….” “[This] data disproves [respondent’s] argument that he could test positive for metabolites in excess of 50 ng/ml and have only the inactive form of THC in his system.”

 

The chart shows the relative concentrations of THC-COOH (inactive THC) and 11-OH-THC (active THC) in the urine of persons who tested positive for cannabis. Persons with approximately 50 ng/ml of inactive THC also had some amount of active THC in their urine. The chart does not indicate when the tested persons last used marijuana. They may have used it within 36 hours before the test. The chart, therefore, does not prove that respondent had active THC in his system. Respondent denied using marijuana within 36 hours before the test.

 

Even if respondent’s urine contained active THC, it is speculative whether the amount was sufficient to impair his ability to drive a motor vehicle. Dr. Pietruszka testified that the “amount of active metabolite” in respondent’s urine “wasn’t measured.”

 

Moreover, the symptoms of marijuana use displayed by respondent—high blood pressure, rapid pulse, rapid respiratory rate, and memory loss—could have been caused by stress and respondent’s traumatic injuries. Dr. Tinsley, who examined respondent in the emergency room after the collision, declared that he had “showed no evidence of intoxication.”

 

[7]Appellant faults the trial court for granting respondent’s motion in limine “without conducting an evidentiary hearing under Evidence Code section 402 to examine the scientific and medical support for Dr. Pietruszka’s opinions.” The court cannot be faulted because appellant never requested an evidentiary hearing under section 402. (See Doers v. Golden Gate Bridge, Highway & Transp. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261; In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 826, 79 Cal.Rptr.3d 588.)

 

 

Future Medical Expenses

*5 The jury awarded respondent medical expenses for four future shoulder surgeries at a cost of $161,750 per surgery. Appellant argues, “[T]he testimony of [respondent’s] treating physician [Dr. Norris] established that only one future shoulder surgery is reasonably certain.” Thus, appellant asks us to reduce the award for future medical expenses by $485,250.

 

 

Testimony of Dr. Norris

Dr. Tom Norris testified as follows: He operated on respondent for the first time in 2011. Respondent’s left “humeral head had collapsed down to a pancake” because of an infection and lack of blood supply. (The humeral head is the ball part of the ball-and-socket shoulder joint.) Respondent “didn’t have a ball and a socket, he had just two flat plates essentially rubbing together.” Dr. Norris removed the “necrotic humeral head” (“[n]ecrosis is something that has died”) and replaced it with a prosthesis. The stem of the prosthesis is titanium and the ball is cobalt chrome. The stem “goes down part way” into the humerus (the bone that runs from the shoulder to the elbow) and is fixed in place with cement. The cobalt-chrome ball is attached to the socket part of the shoulder joint.

 

Dr. Norris continued: Over time, the rubbing of the metal ball against the socket will wear away the socket. According to “published research [that] follows humeral head replacements over a 15-year period,” the ball “will actually shift into the shoulder blade about half a millimeter to a millimeter a year.” “At some point, [respondent] may need a cover for the socket or to replace this kind of prosthesis with what is called a ‘reverse shoulder prosthesis.’ That would depend upon infection, rotator cuff status, how much bone is worn away, whether or not he needs bone grafts.” It is best to wait as long as possible before performing surgery on the shoulder socket “because once he has something done to the socket, that stuff can wear out in 10 or 15 years and then it needs to be redone…. One needs bone grafts … to try to build the bone back.” “Given that he was 19 when [the prosthesis] was put in and that [the socket] will wear, its [sic] probably an 80 to 90 percent chance that he will have additional surgery going forward.”

 

Dr. Norris did not say when the 80 to 90 percent certain shoulder surgery is likely to occur. Nor did he say how many revision surgeries, if any, respondent will need.

 

 

Testimony of Dr. Tauber

Dr. Jacob Tauber, an orthopedic surgeon, testified as an expert for appellant. Dr. Tauber noted that Dr. Norris had performed a partial shoulder replacement on respondent-“[t]he type of shoulder replacement … where you’ve replaced one side [i.e., the ball] of the [ball-and-socket] joint.” “Because the shoulder is a non-weight-bearing joint,” Dr. Tauber expected “to a reasonable degree of medical certainty” that the partial shoulder replacement would “last … if [respondent] acts prudently and takes care of it.” It “could last him his lifetime if he protects it. If he doesn’t protect it, that’s a different issue.” Dr. Tauber disagreed with studies “suggesting that whether he does [protect it] or he doesn’t, the shoulder is going to wear out at anywhere from one to two millimeters a year until it gets to the point where [respondent is] going to need a full shoulder replacement [i.e., replacement of both sides of the ball-and-socket joint].”4 The studies are not “universally accepted.”

 

*6 Dr. Tauber read Dr. Norris’s deposition. Respondent’s counsel asked, “Dr. Norris is suggesting that [respondent] is going to have a full shoulder replacement by the year 2031, isn’t he?” Dr. Tauber replied: “I didn’t remember the year, but that’s what he suggested. I knew that he was recommending that or that he opined that he would need a full replacement.” Counsel asked, “And then several revisions after that?” Dr. Tauber responded, “That’s what he opined.”

 

 

Testimony of Edward Bennett

Edward Bennett testified that he is a “certified life care planner expert.” He prepared a life care plan report for respondent. It covers “future life care costs,” including “costs of surgeries.” The number of future shoulder surgeries is based on Dr. Norris’s statements. The report was not admitted in evidence and is not included in the record on appeal.

 

 

Testimony of John Nordstrand

John Nordstrand, respondent’s forensic economist, testified that the life care plan report prepared by Bennett includes a shoulder “arthroplasty” surgery at age 31 and three subsequent shoulder “revision” surgeries. An arthroplasty is a joint replacement. Thus, the total number of future shoulder surgeries is four. Bennett estimated that the cost of each surgery would be $161,750.

 

 

Sufficiency of the Evidence to Support Four Future Shoulder Surgeries

[8] [9]Civil Code section 3283 provides, “Damages may be awarded … for detriment … certain to result in the future.” “Courts have interpreted this section to mean that a plaintiff may recover if the detriment is ‘reasonably certain’ to occur. [Citations.] It is for the jury to determine the probabilities as to whether future detriment is reasonably certain to occur in any particular case. [Citation.]” (Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 97, 67 Cal.Rptr.3d 100 (Garcia); see also Ostertag v. Bethlehem Shipbuilding Corp. (1944) 65 Cal.App.2d 795, 807, 151 P.2d 647 [“from expert testimony as to the medical probabilities it is for the jury to determine whether future detriment is reasonably certain to occur”].)

 

“A challenge in an appellate court to the sufficiency of the evidence is reviewed under the substantial evidence rule. [Citations.] … ‘ “ ‘[T]he power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor….” [Citation.]’ [Citations.]” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968, 108 Cal.Rptr.2d 34.) Substantial evidence is “evidence which is reasonable, credible, and of solid value … such that some reasonable trier of fact could find that the judgment and each essential element thereof was established by the appropriate burden of proof.” (Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 414, 210 Cal.Rptr. 509 (Rivard).) The appropriate burden of proof here is proof of reasonable certainty by a preponderance of the evidence. (Evid. Code, § 115.)

 

[10]Dr. Norris’s testimony constitutes substantial evidence of reasonable certainty that respondent will undergo one future shoulder surgery (the first surgery) at an undetermined time. Dr. Norris opined, “Given that he was 19 when [the prosthesis] was put in and that [the socket] will wear, its [sic] probably an 80 to 90 percent chance that he will have additional surgery going forward.”

 

*7 Dr. Norris’s testimony does not constitute substantial evidence that, after the first surgery, it is reasonably certain respondent will require three additional surgeries at 15-year intervals for a total of four future shoulder surgeries. Dr. Norris did not opine when the first surgery is likely to occur. He testified that, pursuant to “published research [that] follows humeral head replacements over a 15-year period,” the cobalt-chrome ball “will actually shift into the shoulder blade about half a millimeter to a millimeter a year.” Only an expert can gauge when the shifting of the ball will require further surgery, and Dr. Norris did not testify on this point. Dr. Norris wanted to wait as long as possible before performing surgery on the shoulder socket “because once he has something done to the socket, that stuff can wear out in 10 or 15 years and then it needs to be redone.” (Italics added.) As used in this context, “can” means “may.” Dr. Norris did not indicate the probability that, after the first surgery, respondent’s shoulder socket would need to be redone every 10 to 15 years.

 

Dr. Tauber’s testimony does not fill the gap in Dr. Norris’s testimony. Dr. Tauber testified that in his deposition Dr. Norris had opined that respondent would eventually need a full shoulder replacement (the first surgery), but Dr. Tauber could not remember when Dr. Norris believed the first surgery would occur. Dr. Tauber further testified that Dr. Norris had opined that, after the first surgery, respondent would need “several revisions.” Dr. Tauber did not say that Dr. Norris believed respondent would need three revisions at 15-year intervals. Nor did he say whether Dr. Norris had indicated the probability of the future revisions. Thus, based on Dr. Norris’s and Dr. Tauber’s testimony, a reasonable trier of fact could not find that it is reasonably certain respondent will need three future shoulder revisions.

 

We are left with the testimony of Edward Bennett and John Nordstrand. Before preparing his life care plan report, Bennett spoke to Dr. Norris about the medical care respondent would need over his lifetime. Bennett included in the report only “those things that [respondent] will have to a reasonable degree of medical probability.” Bennett’s “methodology” was to “[l]ook at the records, contact the doctors, ask what is reasonably required within a reasonable degree of medical probability and determine the cost factors.” Bennett asked respondent’s doctors, “[W]ithin a reasonable degree of medical probability what are the needs that [respondent] has futuristically from a medical standpoint [?]” However, in his testimony Bennett said nothing about respondent’s need for future shoulder surgeries.

 

Nordstrand is the only witness who provided information about the number and dates of respondent’s future shoulder surgeries. He relied on Bennett’s life care plan report and did not read Dr. Norris’s deposition. According to Nordstrand, the report includes costs for a shoulder “arthroplasty” surgery at age 31 and three subsequent shoulder “revision” surgeries at 15-year intervals. The first revision would occur at age 46, the second at age 61, and the third at age 76. It is reasonable to infer that Dr. Norris told Bennett that, to a reasonable degree of medical probability, respondent would require these surgeries.

 

[11]Nordstrand’s testimony about respondent’s future surgeries consists of multiple hearsay statements—statements made by Bennett in his life care plan report that were based on statements made by Dr. Norris. Appellant did not object on hearsay grounds to Nordstrand’s or Bennett’s testimony. Therefore, the multiple hearsay statements are competent evidence. (People v. Panah (2005) 35 Cal.4th 395, 476, 25 Cal.Rptr.3d 672, 107 P.3d 790.)

 

Appellant claims that the “hearsay statements attributed to Dr. Norris cannot support the award” because “a party cannot prove case-specific facts by having an expert repeat hearsay statements.” Appellant relies on People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320. There, our Supreme Court held: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay.” (Id. at p. 686, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Appellant forfeited the Sanchez hearsay argument because he never made a hearsay objection. (People v. Stevens (2015) 62 Cal.4th 325, 333, 195 Cal.Rptr.3d 762, 362 P.3d 408.)

 

*8 [12] [13] [14]That the multiple hearsay statements are competent evidence does not mean that they constitute substantial evidence. (See Gregory v. State Bd. of Control (1999) 73 Cal.App.4th 584, 597, 86 Cal.Rptr.2d 575 [“The admissibility and substantiality of hearsay evidence are different issues”].) “ ‘Expert medical opinion … does not always constitute substantial evidence….’ [Citations.]” (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1110, 131 Cal.Rptr.2d 1, 63 P.3d 913.) “[A]n expert’s opinion is no better than the reasons upon which it is based. [Citations.]” (Ferreira v. Workmen’s Comp. Appeals Bd. (1974) 38 Cal.App.3d 120, 126, 112 Cal.Rptr. 232.) “ ‘ “The chief value of an expert’s testimony … rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion….” ’ [Citation.]” (People v. Coogler (1969) 71 Cal.2d 153, 166, 77 Cal.Rptr. 790, 454 P.2d 686.) “Accordingly, whether [Dr. Norris’s, Bennett’s, and Nordstrand’s] testimony was substantial evidence in support of the [jury’s] findings must be determined by the material facts upon which [Dr. Norris’s] opinion was based and by the reasons given for his opinion.” (Hegglin v. Worker’s Comp. App. Bd. (1971) 4 Cal.3d 162, 169-170, 93 Cal.Rptr. 15, 480 P.2d 967.)

 

As to the three future shoulder revisions at 15-year intervals, the record discloses the material facts upon which Dr. Norris’s opinion was based and the reasons for his opinion. Dr. Norris testified that, over time, the rubbing of the metal ball against respondent’s shoulder socket will wear away the socket. The ball “will actually shift into the shoulder blade about half a millimeter to a millimeter a year.” This evidence constitutes a sufficient basis for Dr. Norris’s opinion that, to a reasonable degree of medical probability, respondent will need a shoulder socket replacement at age 31. Dr. Norris also testified that, “once … something is done to the socket, that stuff can wear out in 10 or 15 years and then it needs to be redone.” This evidence constitutes a sufficient basis for his opinion that, to a reasonable degree of medical probability, respondent will need a revision surgery every 15 years for a total of three future revisions.

 

[15] [16]Dr. Norris told Bennett that the four future surgeries were necessary “within a reasonable degree of medical probability.” This standard is not the same as the case law standard requiring that future surgeries be “reasonably certain to occur.” (Garcia, supra, 156 Cal.App.4th at p. 97, 67 Cal.Rptr.3d 100.) But “[i]t is ‘not required’ for a doctor to ‘testify that he [is] reasonably certain that the plaintiff would [need to undergo surgeries] in the future. All that is required to establish future [surgeries] is that from all the evidence, including the expert testimony, … it satisfactorily appears that such [future surgeries] will occur with reasonable certainty. [Citations.]’ [Citation.]” (Id. at pp. 97-98, 67 Cal.Rptr.3d 100, first, second, and second to last brackets in original, other brackets added; accord, Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 602, 207 Cal.Rptr.3d 712 (Regalado).) “ ‘[I]t is generally a question for the [trier of fact] to determine from the evidence whether or not the claimed prospective detriment is reasonably certain to occur.’ [Citation.]” (Ibid., last bracket added.)

 

Viewing all of the evidence in the light most favorable to respondent, we conclude that a “reasonable trier of fact could find” by a preponderance of the evidence that it is reasonably certain respondent will need four future shoulder surgeries. (Rivard, supra, 164 Cal.App.3d at p. 414, 210 Cal.Rptr. 509; see Regalado, supra, 3 Cal.App.5th at p. 603, 207 Cal.Rptr.3d 712 [based on evidence, including doctor’s opinion that “Regalado would more likely than not need future surgery,” the “jury could conclude it was reasonably certain that Regalado would require a future spinal surgery”].)

 

 

Disposition

The judgment is affirmed. Respondent shall recover his costs on appeal.

 

We concur:

GILBERT, P.J.

PERREN, J.

All Citations

2017 WL 3141173, 17 Cal. Daily Op. Serv. 7093

 

 

Footnotes

1

Hernandez is doing business as D & H Trucking. We consider Hernandez to be the sole appellant. All future references to appellant are to Hernandez personally. (See Providence Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42 Cal.App.4th 1194, 1200, 50 Cal.Rptr.2d 192.)

2

See People v. Derror (2006) 475 Mich. 316, 321-322, [715 N.W.2d 822, 826], overruled on other grounds in People v. Feezel (2010) 486 Mich. 184, 188, [783 N.W.2d 67, 71]: “The experts agreed that carboxy THC [inactive THC] is a ‘metabolite,’ or byproduct of metabolism, created in the human body during the body’s biological process of converting marijuana into a water-soluble form that can be excreted more easily. Its presence in the blood conclusively proves that a person ingested THC at some point in time. However, carboxy THC itself has no pharmacological effect on the body and its level in the blood correlates poorly, if at all, to an individual’s level of THC-related impairment. In fact, carboxy THC could remain in the blood long after all THC has gone, as THC quickly leaves the blood and enters the body’s tissues. [Citation.]”

3

In argument before this court, appellant conceded that, based on the type of preliminary urine drug screen test administered to respondent, no California case has permitted an expert to opine that a driver was under the influence of marijuana.

4

According to Dr. Norris, studies suggest that the shoulder will wear out at a rate of one-half to one millimeter, not one to two millimeters, per year.

United States District Court,

E.D. Arkansas, Western Division.

Mayonna BIZZELL, as Personal Representative of the Estate of Willetta Reaves and as Next Friend of G.B., a minor, Plaintiff

v.

TRANSPORT CORPORATION OF AMERICA, INC.; and Jimmie Martin “Marty” Harper, Jr., Defendants

No. 4:16CV00376 JLH

|

Signed 08/04/2017

Attorneys and Law Firms

Eugene L. Tagle, Kevin Kelley, Michael A. Crozier, S. Tomiyo Stoner, The Kelley Law Firm, Dallas, TX, John W. Walker, John W. Walker, P.A., Little Rock, AR, for Plaintiff.

Bruce E. Munson, Kara B. Mikles, Munson, Rowlett, Moore & Boone, P.A., Little Rock, AR, for Defendants.

 

 

OPINION AND ORDER

1. LEON HOLMES, UNITED STATES DISTRICT JUDGE

*1 Mayonna Bizzell brings this action as personal representative of the Estate of Willetta Reaves and as next friend of G.B., a minor, against the defendants, Transport Corporation of America, Inc., and Jimmie Martin Harper, Jr., seeking damages for the death of Willetta Reaves, who sustained fatal injuries in a motor vehicle accident. Late on May 15, 2016, Reaves was traveling east on Interstate 40 in Pulaski County, Arkansas, when her vehicle was rear-ended by a tractor-trailer operated by Harper, an employee of Transport Corporation. Bizzell1 filed suit in the Circuit Court of Pulaski County on June 3, 2016, and the defendants removed the action to this Court on June 15, 2016, based on diversity. Bizzell alleges claims for negligence against Harper and against Transport Corporation in the form of negligent entrustment, as well as claims against both defendants under Arkansas’s wrongful death and survival statutes. She also seeks punitive damages. Transport Corporation has admitted that it is vicariously liable for Harper’s negligence, if any, based on the doctrine of respondeat superior.

 

The defendants have filed two motions for partial summary judgment. In the first, the defendants assert that they are entitled to summary judgment on punitive damages and whether Transport Corporation is directly liable for its own negligence. Document #57. In the second, Transport Corporation argues it is entitled to summary judgment on the wrongful death claim because Bizzell and G.B. are not beneficiaries under Arkansas’s wrongful death statute. Document #62.

 

 

I.

A court should grant summary judgment if the evidence demonstrates that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L.Ed. 2d 265 (1986). If the moving party meets that burden, the nonmoving party must come forward with specific facts that establish a genuine dispute of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L.Ed. 2d 538 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute of material fact exists only if the evidence is sufficient to allow a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). The Court must view the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences that can be drawn from the record. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015). If the nonmoving party fails to present evidence sufficient to establish an essential element of a claim on which that party bears the burden of proof, then the moving party is entitled to judgment as a matter of law. Id.

 

 

II.

1. Punitive Damages

*2 Bizzell seeks “the maximum amount of punitive damages allowed by law.” Document #42-1 at 11, ¶ 45. The defendants maintain that the evidence is insufficient to allow a claim for punitive to go to the jury. Document #58 at 3-9. Bizzell bases her argument for punitive damages largely, though not exclusively, on her claim of negligent entrustment. She says that Transport Corporation ignored Harper’s poor driving history and should have known that Harper’s risky driving habits would result in injury but allowed him to continue driving anyway. Document #71 at 10.

 

Inasmuch as this is a diversity case and the accident occurred in Arkansas, the law of the State of Arkansas governs. See Burger Chef Sys., Inc. v. Govro, 407 F.2d 921, 923 (8th Cir. 1969). In Arkansas, the standard for an award of punitive damages is set by statute:

In order to recover punitive damages from a defendant, a plaintiff has the burden of proving that the defendant is liable for compensatory damages and that either or both of the following aggravating factors were present and related to the injury for which compensatory damages were awarded:

(1) 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; or

(2) The defendant intentionally pursued a course of conduct for the purpose of causing injury or damage.

Ark. Code Ann. § 16-55-206 (2003). Unless a reasonable jury could conclude by clear and convincing evidence that the defendants knew or ought to have known that their conduct would naturally and probably result in injury or damage, and that they continued the conduct with malice or in reckless disregard of the consequences from which malice may be inferred, summary judgment is proper. See Sokol & Assocs., Inc. v. Techsonic Indus., Inc., 495 F.3d 605, 610 (8th Cir. 2007). Negligence alone, even gross negligence, does not justify punitive damages. Alpha Zeta Chapter of Pi Kappa Alpha Fraternity by Damron v. Sullivan, 293 Ark. 576, 587, 740 S.W.2d 127, 132 (1987).

 

Generally, the Arkansas Supreme Court has limited punitive damages in cases arising out of motor vehicle accidents to two situations: racing and drunk driving. See Perry v. Stevens Transport, Inc., No. 3:11CV00048 JLH, 2012 WL 2805026 at *4 (July 9, 2012) (citing Nat’l Bank of Commerce v. McNeil Trucking Co., 309 Ark. 80, 88, 828 S.W.2d 584, 588 (1992)). The Arkansas Supreme Court has, however, affirmed punitive damages in some other contexts and in D’Arbonne Construction Co. v. Foster, the court explained that “[w]hether a vehicle is being operated in such a manner as to amount to wanton or willful conduct in disregard of the rights of other must be determined by the facts and circumstances of each individual case.” 354 Ark. 304, 309, 123 S.W.3d 894, 898 (2003).

 

In D’Arbonne, a logging truck collided head-on with a passenger vehicle, killing a father and his daughter, and injuring two other passengers. Id. at 306, 123 S.W.3d at 896. One of the surviving passengers, the wife and mother of the deceased, filed a personal injury and wrongful death action against the driver and his employer. Id. At trial, the jury found that the driver and his employer were negligent, assigned them each fifty percent of the fault, and awarded punitive damages. Id. The sole issue before the court on appeal was whether the punitive damages award was appropriate. Id. The court recited the evidence produced at trial: The driver was speeding at the time of the accident; the driver received five citations for speeding or defective equipment within the five years preceding the accident; the logging truck had approximately 500,000 miles on it; the company said that it had a weekly maintenance schedule; the company mechanic performed the maintenance; the work performed was recorded in a log; the last log entry indicating maintenance had been performed on the brakes was recorded in 1994, five years before the accident occurred; the driver told the state trooper who reported to the scene of the accident that he had told the company to fix the truck; an expert testified that the condition of the brakes contributed to the accident; and another expert testified that someone had intentionally backed off the brakes instead of performing the proper maintenance. Id. at 309-10, 123 S.W.3d at 898-99.

 

*3 The court held that the evidence—especially testimony that the driver had informed the company about the dangerous condition of the truck and expert testimony that the company had knowingly altered the brakes—was sufficient to support punitive damages. Id. at 311, 123 S.W.3d at 901. See also Potts v. Benjamin, 882 F.2d 1320, 1327 (8th Cir. 1989) (affirming an award of punitive damages). The court distinguished the facts from those before it in another trucking accident case: Nat’l By-Prods., Inc. v. Searcy House Moving Co., 292 Ark. 491, 731 S.W.2d 194 (1987). In that case, the truck weighed 480 pounds over the legal limit, the driver had received six citations in the prior year for driving an overweight truck, and his employer paid all the citations. Id. at 494, 731 S.W.2d at 196. Though the employer had in place a disciplinary procedure for drivers who received too many citations, the employer did not discipline, or even caution, the driver. Id. Employee testimony also revealed that the truck’s brakes were faulty, but there was no evidence that the employer knew the brakes were faulty. Id. at 495, 731 S.W.2d at 196. The court reversed the jury’s award of punitive damages. Id. at 495, 731 S.W.2d at 196-197.

 

Here, Harper has received three traffic citations—two speeding tickets driving his personal vehicle and one lane violation driving a tractor-trailer. Document #57-1 at 4. He was driving for Tyson Foods, Inc., when he received the lane violation, but he failed to disclose it and lost his job. Id. at 6. In addition, he has received citations from the Department of Transportation for continuing to drive though the lights on his tractor-trailer had gone out. Document #29 at 3, ¶ 14. In either 2007 or 2008, while driving his personal truck, Harper was involved in a three-car pile-up and totaled his truck; but another driver was found to be at fault. Document #57-1 at 5. Harper was involved in three preventable accidents while maneuvering a tractor-trailer at low speeds between 2011 and early 2012: (1) he hit a concrete barrier; (2) he backed into the cab of another truck; and (3) he hit a fence. Id. at 4. None of these accidents resulted in personal injury. Id. Harper was struck by another tractor-trailer in 2014. Id. at 5. A sign blew into the side-mirror of his tractor-trailer in 2016. Document #57-2 at 3. The defendants submitted a document recording Harper’s safety performance history at Tyson Foods, Inc., which shows he was involved in seven accidents between March 2012 and January 2014. Document #57-3. Six were not preventable. Id. The accident in which he hit a fence was preventable. Id.

 

In addition to citations, violations, and accidents, Bizzell says that Transport Corporation also knew or should have known that Harper had a “dangerous habit of phone use.” Document #71 at 8. In his deposition, Harper admitted that he had been stopped “back in December” for having a phone in his hand but said that a judge dismissed the citation. The deposition took place on May 24, 2017, and Harper was presumably referring to December 2016. This incident is therefore irrelevant to what Transport Corporation knew about Harper’s driving history and habits in May 2016, when the accident at issue occurred. Second, Bizzell draws a tenuous connection between this fact and Transport Corporation’s knowledge of Harper’s phone use: Transport Corporation had a policy prohibiting the use of cell phones, but Harper’s supervisor did not “immediately report” the violations. Document #71 at 7. Nothing in the record indicates that the supervisor had access to the phone records. Even if the supervisor had access to the records, they would not have been available until after the accident. In any event, the cell phone records indicate, at most, that Harper, in plaintiff’s words, “was making outgoing calls while on duty just hours before the collision.” Id. No evidence shows that Harper was using his cell phone at the time of the accident or that the cell phone had any effect on his driving at the time of the accident.

 

*4 Bizzell also argues that Harper’s failure to brake in time indicates that he was inattentive. Document #71 at 6-7. Perhaps so. But that does not show that he was using his cell phone; nor is his inattentiveness sufficient to meet the high standard for punitive damages.

 

The citations, violations, and accidents upon which Bizzell relies to establish that Transport Corporation knew, or had reason to believe, that allowing Harper to continue driving would probably cause injury to a motorist are no more serious than those the driver received in Nat’l By-Prods., Inc., nor in other vehicle accident cases in which either Arkansas courts or courts applying Arkansas law have refused punitive damages. See Elrod v. G & R Constr. Co., 275 Ark. 151, 155, 628 S.W.2d 17, 19 (1982); Perry, 2012 WL 2805026 at *6; Wheeler v. Carlton, No. 3:06CV00068 GTE, 2007 WL 30261 at *10 (E.D. Ark. Jan. 4, 2007). While Harper does not have a spotless driving record, the blemishes are limited to collisions with stationary objects, collisions at low speeds, minor citations, and accidents for which he was not at fault. Transport Corporation had no reason to believe that allowing Harper to continue driving a truck would likely result in injury or death.

 

Nor was Harper’s conduct on the night in question sufficiently reckless to justify an award of punitive damages against him. Bizzell argues that Harper was going too fast for the conditions. Document #71 at 8-9. He was traveling at 68 miles per hour, which was three miles per hour above the speed limit. His headlights were on low beam, which, according to Bizzell, means that he could only see 250 feet in front of him, whereas at the rate of 68 miles per hour he would travel nearly 700 feet in 7 seconds. Thus, according to Bizzell, Harper “was bound to collide with any object in the 450 feet ahead of his headlights.” Id. at 9. Assuming those facts to be true, they are not sufficient to support submitting a punitive damage claim to the jury. Driving at the rate of 68 miles per hour in a zone in which the maximum speed limit is 65 miles per hour may be negligent, but it is not the kind of speeding that would justify an award of punitive damages. Cf. Nat’l By-Prods., 292 Ark. at 494-95, 731 S.W.2d at 196. Nor would the fact that Harper’s headlights were on low beam, rather than high beam, while traveling on Interstate 40 in Pulaski County justify an award of punitive damages.

 

Bizzell has failed to provide clear and convincing evidence to show that the defendants knew or ought to have known, in the light of surrounding circumstances, that their conduct would naturally and probably result in injury or damage and that they continued that conduct in reckless disregard of the consequences from which malice may be inferred; and she has failed to present evidence to show that the defendants intentionally pursued a course of conduct for the purpose of causing injury or damage. Therefore, the defendants are entitled to summary judgment on the issue of punitive damages.

 

 

1. Direct Liability

Bizzell alleges claims against Transport Corporation both for the negligence of its agent, Harper, and for its own act of negligence in entrusting Harper with driving the truck. When a defendant denies liability, a plaintiff may proceed under two consistent theories of recovery, such as respondeat superior (vicarious liability) and negligent entrustment (direct liability). Elrod, 275 Ark. at 154, 628 S.W.2d at 18-19. When the defendant has admitted vicarious liability, however, a plaintiff may proceed only on a theory of respondeat superior. Id. (citing Kyser v. Porter, 261 Ark. 351, 548 S.W.2d 128 (1977)). “[A]n exception exists to this rule when a plaintiff has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee.” Wheeler, 2007 WL 30261 at *12 (citing Elrod, 275 Ark. at 155, 628 S.W.2d at 19). Here, Transport Corporation has admitted that it is vicariously liable for Harper’s negligence, if any, based on the doctrine of respondeat superior, and the Court has determined that the evidence is insufficient to support a claim for punitive damages. Therefore, the defendants are entitled to summary judgment on the negligent entrustment claim. Bizzell may proceed against Transport Corporation only on a theory of respondeat superior.

 

 

III.

*5 In the second motion for summary judgment, Transport Corporation argues that it is entitled to judgment as a matter of law on the wrongful death claim because Bizzell and G.B. do not qualify as beneficiaries under Arkansas’s wrongful death statute. Document #62. Bizzell and G.B. are biological children of the decedent, Willetta Reaves. But in 2006, Willetta Reaves relinquished her parental rights, and her parents, Altha and Willie Reaves, adopted them.2

 

An action for wrongful death is a statutory creation; it did not exist at common law. Babb v. Matlock, 340 Ark. 263, 265, 9 S.W.3d 508, 509 (2000). Therefore, Arkansas courts construe the statute strictly, which “ ‘requires nothing to be taken as intended that is not clearly expressed.’ ” Id. (quoting Lawhon Farm Servs. v. Brown, 335 Ark. 276, 279, 984 S.W.2d 1, 4 (1998)). The statute allows certain persons—statutory beneficiaries—to recover for personal losses they endure due to a person’s death. See Ark. Code Ann. § 16-62-102(a)(1) (2013).

 

Persons considered statutory beneficiaries include the surviving spouse, children, father, mother, brothers, and sisters of the deceased person; persons, regardless of age, standing in loco parentis to the deceased; and persons, regardless of age, to whom the deceased stood in loco parentis at any time during the life of the deceased. Id. § 102(d). Bizzell says that even if she and G.B. legally are not the decedent’s children, legally they are her sisters. Document #71 at 2, 3. She argues further that the decedent stood in loco parentis to them. Id.

 

Ark. Code Ann. § 9-9-215(a)(1) (2011) explains that the effects of an adoption decree are:

[T]o relieve the biological parents of the adopted individual of all parental rights and responsibilities, and to terminate all legal relationships between the adopted individual and his or her biological relatives, including his or her biological parents, so that the adopted individual thereafter is a stranger to his or her former relatives for all purposes. This includes inheritance and the interpretation or construction of documents, statutes, and instruments….

Pursuant to this provision, the adoption terminated the parent-child relationship between the decedent and her children. Webb v. Harvell, 563 F. Supp. 172, 175 (W.D. Ark. 175) (holding that biological child of decedent, who was adopted by decedent’s sister, could not recover as a child of decedent under wrongful death statute). See also Vice v. Andrews, 328 Ark. 573, 577, 945 S.W.2d 914, 916 (1997) (“[W]ith very narrow and specific exceptions, all legal relationships between the adopted individual and her natural relatives are terminated upon adoption.”). Therefore, Bizzell and G.B. may not recover for the wrongful death of the decedent, their biological mother, as her children.

 

Bizzell also maintains that the decedent acted in loco parentis to herself and G.B., so they may recover as wrongful death beneficiaries under section 102(d)(3). Document #71 at 3-5. The Arkansas Supreme Court has defined “in loco parentis” as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties, and responsibilities.” Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d 496, 500 (1991) (quoting Black’s Law Dictionary 708 (5th ed. 1979)). The court explained that in making the determination whether a person stands in loco parentis to a child, courts consider the totality of the circumstances and “do not lightly infer the intent of the person seeking to be considered as standing in loco parentis.” Daniel v. Spivey, 2012 Ark. 39, 7, 386 S.W.3d 424, 428. The wrongful death statute says that persons to whom the deceased stood in loco parentis at any time during the life of the deceased are beneficiaries. Ark. Code Ann. § 16-62(102)(d)(3). Prior to amendment in 2001, the statute did not include the modifier “at any time during the life of the deceased.” Zulpo v. Blann, 2013 Ark. App. 750, 4, 2013 WL 6712532 at * *2. The relevant time during the life of the decedent in this case is from the adoption until her death. Prior to the adoption, the decedent was naturally charged with a parent’s rights, duties, and responsibilities, so she could not have stood in loco parentis. After the adoption, she was no longer naturally charged with those rights, duties, and responsibilities but could assume them in loco parentis.

 

*6 In Daniel v. Spivey, a step-parent sought in loco parentis status. 2012 Ark. at 8, 386 S.W.3d at 429. There was testimony that the child and stepparent were close, that they participated in recreational activities together, and that the stepparent disciplined the child “when necessary and praised her when justified.” Id. The trial court characterized the relationship as one in loco parentis. Id. On appeal, the Arkansas Supreme Court also considered that the stepparent occasionally provided necessities, babysat, attended school programs, and attended to the child’s needs. Id. The court held that the facts did not rise to the level necessary to establish an in loco parentis relationship; rather, the facts demonstrated a caring stepparent-stepchild relationship and fell “well short” of establishing that the stepparent “embraced the rights, duties, and responsibilities of a parent.” Id. at 9, 386 S.W.3d at 429-30. Cf. Webb, 563 F. Supp. at 175-76.

 

Here, the record includes deposition testimony from Bizzell and from G.B. Bizzell testified that she and G.B. had lived with their grandmother since they were born. Some time after the adoption, Bizzell and G.B. moved to Michigan with their grandparents where they lived for five years. The decedent remained in Little Rock. When the grandparents and children returned to Little Rock, they and the decedent lived together. Bizzell was in the ninth grade and G.B. was in the sixth grade when they moved back to Little Rock. Bizzell testified that either the decedent or their grandmother would take them shopping, depending on who had money at the time. Bizzell testified that the decedent was her confidante and that she felt comfortable discussing topics with the decedent that she would not discuss with her grandmother. Bizzell called the decedent “mom” or “mama” and called Altha Reaves “granny.” G.B. testified that the decedent visited them three times when they lived in Michigan. When the family moved back, G.B. says that the decedent “was there for [her] more,” took her to school, and attended cheerleading events. Her grandmother got sick and the decedent began to step in and help more.

 

These facts do not support a finding that the decedent fully assumed the obligations incident to the parental relationship and discharged those obligations after she consented to the adoption of her children. As in Daniel, the facts show that the decedent occasionally provided Bizzell and G.B. with necessities, attended school programs, provided transportation, and maintained a friendly relationship with Bizzell. See 2012 Ark. at 9, 386 S.W.3d at 429-30. This is not enough to establish in loco parentis relationships between the decedent and Bizzell and G.B. Therefore, Bizzell and G.B. may not recover for the wrongful death of the decedent as beneficiaries under Ark. Code Ann. § 16-62-102(d)(3).

 

Transport Corporation says that just as Bizzell and G.B. cannot be considered the children of the decedent for the purposes of wrongful death recovery, neither can they be considered her sisters. It focuses on the portion of Ark. Code Ann. § 9-9-215(a)(1) that says the adopted child is a stranger to her former relatives for all purposes. That argument overlooks section 215(a)(2), which explains that an adoption decree “create[s] the relationship of parent and child between petitioner and the adopted individual, as if the adopted individual were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments….” The purpose of the provision in section 215(a)(1) stating that an adopted child becomes a stranger to her biological relatives is “to strengthen the adoptive family against interference from blood kin.” In the Matter of the Adoption of Perkins/Pollnow, 300 Ark. 390, 391, 779 S.W.2d 531, 532 (1989). It would not serve that purpose here to disregard section 215(a)(2) and preclude Bizzell and G.B. from any recovery under the wrongful death statute. They were adopted by Willetta Reaves’s parents and thereby, in the eyes of the law, became her sisters. They may recover under the wrongful death statute as her sisters.

 

 

CONCLUSION

*7 For the foregoing reasons, the defendants’ motion for partial summary judgment is GRANTED. Document #57. Transport Corporation’s motion for partial summary judgment is DENIED. Document #62.

 

IT IS SO ORDERED this 4th day of August, 2017.

 

All Citations

Slip Copy, 2017 WL 3381358

 

 

Footnotes

1

The personal representative was originally Altha Reaves, who died after this action was commenced.

2

Bizzell does not concede that a legally valid adoption occurred. Document #71 at 3. She surmises that “further investigation and discovery” might show that the adoption was invalid. Document #78 at 2. Transport Corporation has submitted a certified copy of an Amended Decree of Adoption entered by the Probate Court of Pulaski County, Arkansas, on July 17, 2006. See Defendant’s Exhibit F, filed under seal on July 24, 2017. Bizzell has offered nothing to show that this decree is invalid, nor has she presented an affidavit or declaration under Fed. R. Civ. P. 56(d).