Wallace v. Broyles
Annotate this Case
Jacqueline WALLACE, Individually and as the
Administrator of the Estate of Larry Shannon
Wallace v. J. Frank BROYLES, Individually;
Dean Weber, Individually; James Woody
Woodell, Individually; Harp's Food Stores,
Inc., Dr. John P. Park, Dr. Tom Philip Coker,
Dr. Tom Patrick Coker, Dr. Walter "Duke"
Harris, and Ozark Orthopaedic Sports Medicine
Clinic, Ltd.
97-170 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered January 15, 1998
1. Trial -- trial court used wrong standard when deciding to
grant summary judgment. -- The trial court used the wrong
standard when deciding to grant summary judgment where it
determined there was no evidence upon which reasonable minds
could differ that the decedent consumed any significant amount
of Darvocet prior to his suicide, or that the defendants' acts
caused his suicide; in its oral findings, the trial court also
said that there was no evidence of any malice, and if there
was any evidence, reasonable minds could not differ as to the
conclusions to be drawn that there was no malice shown; the
trial court further held that "there is no evidence,
sufficient evidence, to show that the actions of the
defendants proximately caused suicide because there is no
evidence that reasonable minds could differ to the fact that
he was using Darvocet at the time of his suicide, which was
the proximate cause of that suicide."
2. Judgment -- summary judgment -- when properly granted. --
Summary judgment is to be granted by a trial court only when
it is clear that there are no genuine issues of material fact
to be litigated, and the party is entitled to judgment as a
matter of law; once the moving party has established a prima
facie entitlement to summary judgment, the opposing party must
meet proof with proof and demonstrate the existence of a
material issue of fact; the standard to be applied in summary-
judgment cases is whether there is evidence sufficient to
raise a fact issue, rather than evidence sufficient to compel
a conclusion on the part of the factfinder.
3. Judgment -- summary judgment -- factors on review. -- On
review, the supreme court determines if summary judgment was
appropriate based on whether the evidentiary items presented
by the moving party in support of the motion leave a material
fact unanswered; the supreme 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; the court's review focuses not only on the pleadings,
but also on the affidavits and other documents filed by the
parties.
4. Motions -- correct standard for review of summary judgment --
trial court committed prejudicial error. -- The standard to be
applied in summary-judgment cases is whether there is evidence
sufficient to raise a fact issue, rather than evidence
sufficient to compel a conclusion on the part of the
factfinder; when using the correct standard applicable to the
granting of summary judgment, the trial court committed
prejudicial error.
5. Negligence -- defined -- what constitutes. -- Negligence is
the failure to do something which a reasonably careful person
would do, or the doing of something which a reasonably careful
person would not do; to constitute negligence, an act must be
one from which a reasonably careful person would foresee such
an appreciable risk of harm to others as to cause him not to
do the act, or to do it in a more careful manner; to
constitute actionable negligence, it is not necessary that the
actor foresee the particular injury which occurred, only that
the actor reasonably foresee an appreciable risk of harm to
others; proximate cause in a negligence action may be shown
from circumstantial evidence, and such evidence is sufficient
to show proximate cause if the facts proved are of such a
nature and are so connected and related to each other that the
conclusion therefrom may be fairly inferred.
6. Appeal & error -- review of trial court's grant of summary
judgment -- standard of review. -- Because the supreme court's
review was of the trial court's granting of a summary
judgment, the court needed only to decide if the pleadings and
evidentiary documents raised a fact issue concerning whether
the defendants' acts or omissions were negligence in the
circumstances described, and whether they should have
reasonably foreseen an appreciable risk of harm to others.
7. Negligence -- fact issue as to existence of negligence existed
-- controlled drugs dispensed in illegal and careless manner.
-- Given their expressed and inferred knowledge of the
potential harm that would result to others who would be the
recipients of illegally dispensed drugs, and from the evidence
presented, a fact issue clearly existed concerning whether the
appellees were negligent in the illegal and careless manner in
which they dispensed controlled drugs to university athletes;
to be negligent, the defendants need not be shown to have
foreseen the particular injury which occurred, but only that
they reasonably could be said to have foreseen an appreciable
risk of harm to others.
8. Negligence -- proximate-cause evidence -- decedent had been
supplied with controlled drugs. -- It was clear from the
record that proximate-cause evidence existed to show that the
decedent had been supplied or had consumed the controlled
drugs in controversy; considerable circumstantial evidence was
presented.
9. Torts -- statutory immunity -- liability in tort would stand
if actions of coaches found to be malicious. -- The supreme
court found that the proximate-cause evidence that the
defendant coaches had illegally permitted large orders of
supposedly prescription drugs to be indiscriminately
accessible to anyone entering the athletes' training program
had bearing on the legal issue concerning whether the coaches'
actions were malicious; if so, they would be liable in tort
even though, as state employees, they would otherwise be
statutorily immune from suit.
10. Negligence -- malice -- when inferred. -- Malice may be
inferred where the evidence indicates that the defendant acted
wantonly in causing the injury or with a conscious
indifference to the consequences.
11. Evidence -- seven items of evidence presented at summary-
judgment hearing -- sufficient evidence presented creating
fact issue of whether decedent consumed drugs from the
university athletic department. -- Where at least seven
different items of evidence were produced at the summary-
judgment hearing from which a fact issue could arise regarding
whether the decedent had consumed Darvocet from the university
athletic department, the supreme court, in viewing the
evidence in the light most favorable to the appellant, the
nonmoving party, was compelled to hold that a genuine issue of
material fact existed regarding whether the decedent, prior to
his suicide, had been consuming Darvocet from the university's
supply of the drug.
12. Evidence -- eight items of evidence presented at summary-
judgment hearing -- material issue existed regarding whether
appellees' acted with conscious indifference as to harmful
consequences university athletes could suffer due to athletic
department's drug-dispensing policies. -- In determining
whether the appellees knew or had reason to believe their
conduct would likely cause injury, and whether they had reason
to believe harm could result to the decedent, at least eight
evidentiary items were found that, when viewed in the light
most favorable to the appellant, created a material issue as
to whether the appellees acted with such conscious
indifference to the harmful consequences of the drug-
dispensing procedures employed by the athletic department that
malice could be inferred.
13. Motions -- trial court committed prejudicial error -- trial
court's grant of defendant-appellees' motions for summary
judgment reversed and remanded. -- The trial court committed
prejudicial error in utilizing the wrong standard when ruling
on the defendant-appellees' summary-judgment motions, and
specifically erred in failing to hold the evidence raised fact
issues as to whether the decedent consumed Darvocet illegally
dispensed by the athletic department and whether those drugs
contributed to or caused his death; at the summary-judgment
stage of this litigation, the appellees were not statutorily
immune from suit for tort liability; the trial court's grant
of the defendant-appellees' motions for summary judgment was
reversed and remanded.
Appeal from Washington Circuit Court; Kim M. Smith, Judge;
reversed and remanded.
Joey McCutcheon, Gary L. Richardson and Chad R. Richardson,
for appellants.
Jeffrey A. Bell and Woody Bassett, III, for appellee J. Frank
Broyles.
Jeffrey A. Bell, for appellee Dean Webber.
Davis, Cox & Wright, P.L.C. , by: Walter Cox, Jeffrey A. Bell
and Woody Bassett, III, and Winston Bryant, Att'y Gen., by: Angela
S. Jegley, Asst. Att'y Gen., for appellees James Woody Woodell and
Harp's Food Stores, Inc.
Davis, Cox & Wright, P.L.C. , by: Walter Cox and Constance G.
Clark, for appellees, Dr. John P. Park, Dr. Tom Philip Coker, Dr.
Tom Patrick Coker, Dr. Walter "Duke" Harris, and Ozark Orthopaedic
Sports Medicine Clinic, Ltd.
Tom Glaze, Justice.
Shannon Wright was a varsity football player at the University
of Arkansas who died of a self-inflicted gunshot wound on
October 13, 1993. Shannon's mother, Jacqueline Wallace, filed suit
on March 10, 1995, and an amended complaint on May 11, 1995,
against the nine defendant-appellees, alleging that their
negligent, wilful, wanton, and malicious acts caused Shannon's
death.
In her complaint, Wallace alleged that controlled substances
were stored and dispensed from the Broyles Athletic Complex without
a proper registration from the Drug Enforcement Agency (DEA).
Wallace asserted that, through the DEA registration of defendant-
appellee Dr. John Park, defendant-appellee Dean Weber and others
placed orders for Tylenol #3, Darvocet, and other drugs through
defendant-appellees James Woodell and Harp's Food Stores, and they
had these controlled substances delivered to the athletic
department at the University. Wallace further alleged that, over
a fifteen-month period between November 1992 and January 1994 --
relevant to when and immediately after Shannon played football --
the Arkansas State Police and DEA conducted an audit of these
controlled substances purchased by the athletic department. Their
audit was alleged to reveal that 13,079 dosage units had been
purchased and dispensed, but only 3,352 dosage units could be
documented and accounted for. Wallace also charged that the
controlled substances were kept in an unlocked metal cabinet in the
athletic training room and that University employees and athletes
obtained controlled substances from the athletic department without
prescriptions, labels, instructions, or warnings as to dangers or
side effects. Wallace's complaint further alleged that defendant-
appellees Drs. Tom Philip Coker, Tom Patrick Coker, and Walter
Harris, through defendant-appellee Ozark Orthopaedic Clinic,
authorized Weber to dispense controlled drugs to athletes; they
kept no accurate records on the dosage units dispensed; and they
failed to attend rehabilitation sessions of injured athletes.
Wallace further claimed that the foregoing improper dispensing
of controlled substances took place even though, as early as June
1992, the NCAA had issued guidelines to defendant-appellees Frank
Broyles, Director of Athletics, and Dean Weber, Head Athletic
Trainer, providing that physicians could not delegate the authority
to dispense prescription medications to athletic trainers. Even
though these guidelines and warnings concerning possible dangers to
athletes were given to University personnel, Wallace alleged no
action was taken to avoid those dangers or to comply with the
guidelines. Wallace specifically stated that Broyles and Weber
knew or should have known of the potential harm to the athletes,
but instead they proceeded with conscious indifference to the
possibility of injury to student athletes and others.
Finally, Wallace alleged that Shannon sustained a severe
shoulder injury during a football game on September 11, 1993, which
later resulted in his undergoing extensive physical therapy
treatments and taking heavy dosages of Darvocet supplied by
University personnel and others without advice or warning of the
drug's potentially dangerous side effects or of dangerous
interactions with other drugs. Wallace's complaint concluded with
allegations asserting that Broyles's and Weber's conduct, which
proximately caused Shannon's death, was negligent, malicious,
wilful and wanton, because among other things, they knew of the
illegal dispensing of drugs in the athletic training room and knew
of its danger to athletes. Wallace further concluded that Drs.
Park, Tom Philip Coker, Tom Patrick Coker, Harris and the Ozark
Orthopaedic Clinic were negligent in illegally dispensing narcotics
with dangerous side effects, and that Shannon was given and he
consumed such drugs, causing his death.
One year after the filing of Wallace's amended complaint, the
appellee doctors and the Ozark Orthopaedic Clinic filed a motion
for summary judgment wherein they claimed no credible evidence
existed upon which a jury could find Shannon had consumed any
Darvocet prior to his suicide on October 13, 1993. Moreover, they
claimed that Joe T. Barnes, a toxicologist, determined that there
was no evidence that Shannon had any Darvocet or other drug except
alcohol in his system at the time of his death. The appellee
doctors asserted it was undisputed that Shannon, upset over
breaking up with his girlfriend, Kit Carson, committed suicide
after consuming large quantities of alcohol. Finally, the doctors
submitted an affidavit given by Dr. Don McMillan, Chairman of the
University Pharmacy and Toxicology Department, wherein McMillan
averred that, based upon Barnes's test, no Darvocet was found in
Shannon's body at the time of death. McMillan opined no depressive
effect could have been present from Darvocet even if the drug had
been consumed by Shannon prior to the forty-eight-hour period
preceding his death.
One day after the doctors filed the motion for summary
judgment, Woodell and Harp's Food Stores filed theirs, also
claiming that there was no evidence that Shannon had taken Darvocet
prior to his suicide or that any of the defendants had provided
Darvocet to Shannon. Subsequently, Broyles and Weber separately
filed motions for summary judgment that essentially adopted the
defenses asserted in the earlier summary judgment motions. Broyles
added that, under Ark. Code Ann. 19-10-305(a) (Repl. 1994), he is
a state employee and immune from suit and civil liability for
damages, from acts or omissions, other than malicious acts or
omissions, occurring within the course and scope of his employment,
except to the extent that he may be covered by liability insurance.
Because he had no liability insurance coverage, Broyles asserted he
was statutorily immune from suit and liability. In his summary
judgment motion, Weber also adopted the defenses contained in the
other defendants' motions, but like Broyles, claimed statutory
immunity. However, because Weber conceded having insurance
coverage, he claimed immunity except to the extent of his coverage.
On October 18, 1996, the circuit court undertook review of the
defendant-appellees' motions for summary judgment, plaintiff-
appellant's responses, along with the parties' respective, numerous
pleadings, affidavits, depositions and exhibits, and after doing so
granted the defendant-appellees' motions. First, the trial court
dismissed suit with prejudice against Broyles, finding him to be a
state employee who enjoyed statutory immunity from tort liability,
since he had no insurance coverage and there was no evidence of
malicious acts or conduct on Broyles's part. Second, the court
found Weber a state employee and, as such, immune from suit, since
there was no evidence of malice on his part. However, because
Weber had liability insurance, the court found suit could lie
against Weber to the extent of his insurance coverage, provided
there was evidence showing he had been negligent. The circuit
court next dismissed with prejudice the plaintiff-appellant's suit
against all defendant-appellees, finding no evidence of negligence
and stating its reasons as follows:
(1) There is no evidence before the court upon
which reasonable minds could differ that [Shannon]
consumed any significant amount of Darvocet prior to his
suicide on October 13, 1993.
(2) There is no evidence before the court upon
which reasonable minds could differ that Darvocet, even
if consumed by [Shannon], caused or contributed to [his]
suicide on October 13, 1993.
(3) There is no evidence before the court upon
which reasonable minds could differ that any act or
omission of any of the defendants caused or contributed
to [Shannon's] suicide on October 13, 1993.
We initially point out the trial court's use of the wrong
standard when deciding to grant summary judgment. As discerned
from the foregoing findings, the trial court determined there was
no evidence upon which reasonable minds could differ that Shannon
consumed any significant amount of Darvocet prior to Shannon's
suicide, or that the defendants' acts caused his suicide.
(Emphasis added.)
In its oral findings, the trial court also said that there is
no evidence of any malice, and if there is any evidence, reasonable
minds could not differ as to the conclusions to be drawn that there
was no malice shown. (Emphasis added.) In addition, the trial
court further held that "there is no evidence, sufficient evidence,
to show that the actions of the defendants proximately caused
[Shannon's] suicide because there is no evidence that reasonable
minds could differ to the fact that he was using Darvocet at the
time of his suicide, which was the proximate cause of that
suicide." The law is well settled that summary judgment is to be
granted by a trial court only when it is clear that there are no
genuine issues of material fact to be litigated, and the party is
entitled to judgment as a matter of law. Pugh v. Griggs, 327 Ark.
577, 824 S.W.2d 387 (1992). Once the moving party has established
a prima facie entitlement to summary judgment, the opposing party
must meet proof with proof and demonstrate the existence of a
material issue of fact. Id. On review, this court determines if
summary judgment was appropriate based on whether the evidentiary
items presented by the moving party in support of the 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. Our review focuses not only on the pleadings, but also
on the affidavits and other documents filed by the parties.
Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997).
Significantly, and especially relevant in the present case,
the standard to be applied in summary judgment cases is whether
there is evidence sufficient to raise a fact issue, rather than
evidence sufficient to compel a conclusion on the part of the
factfinder. Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995). When using the correct standard applicable to
the granting of summary judgment, we must hold the trial court
committed prejudicial error.
We first consider Wallace's negligence claims as alleged
against Weber, Woodell, Harp's Food Stores, Drs. Park, T. Philip
Coker, T. Patrick Coker, Harris and the Ozark Orthopaedic Clinic,
and whether a fact issue exists as to how these defendants'
negligence proximately caused Shannon's death.
Negligence is defined to mean the failure to do something
which a reasonably careful person would do, or the doing of
something which a reasonably careful person would not do, under
circumstances similar to those shown by the evidence in this case.
See AMI Civil 3rd 301. To constitute negligence, an act must be
one from which a reasonably careful person would foresee such an
appreciable risk of harm to others as to cause him not to do the
act, or to do it in a more careful manner. Id. This court has
held that to constitute actionable negligence, it is not necessary
that the actor foresee the particular injury which occurred, only
that the actor reasonably foresee an appreciable risk of harm to
others. Jordan v. Adams, 259 Ark. 407, 533 S.W.2d 210 (1976).
Proximate cause in a negligence action may be shown from
circumstantial evidence, and such evidence is sufficient to show
proximate cause if the facts proved are of such a nature and are so
connected and related to each other that the conclusion therefrom
may be fairly inferred. White River Rural Water Dist. v. Moon, 310
Ark. 624, 839 S.W.2d 211 (1992). Once again, because our review is
of the trial court's granting of a summary judgment, we need only
decide if the pleadings and evidentiary documents raise a fact
issue concerning whether the defendants' acts or omissions were
negligence in the circumstances described, and whether they should
have reasonably foreseen an appreciable risk of harm to others.
In our review, the record reflects that Weber and others
connected with the University athletic department had been given a
memorandum circulated by the National Collegiate Athletic
Association (NCAA) and that memo showed controlled substances were
being illegally dispensed to athletes. Subsequently, the Arkansas
State Police and the DEA investigated this matter, and their
investigation revealed that, between November 1992 and January
1994, the University athletic department had purchased 13,079
dosage units of controlled substances, but that records could be
found accounting for only 3,352 units. The fifteen-month audit
showed that while the University training room bought 8,500 dosage
units of Darvocet, only 1,025 of the units had been accounted for
by appropriate records. The investigators determined that athletic
trainers would place orders with Harp's pharmacy department, and
the drugs would be delivered to the athletic department. Defendant
Woodell related that he filled prescriptions for the University
athletic training room two or three times a week, nothing was in
writing, and some drugs bore no labels or names. Defendant Dr.
Park admitted giving trainers authorization to dispense drugs and
said that he, individually, never dispensed medication to the
athletes.
Officer Chris Anderson averred that Weber pled guilty to
violating the Federal Controlled Substance Act by failing and
refusing to keep records for storing and dispensing of controlled
drugs. Dr. Park, the University team physician, admitted that he
violated the federal drug act, and as a result, the DEA imposed
restrictions on Park's DEA registration, prohibiting him from
dispensing controlled drugs for two years. The State Police
investigation reflected that the controlled drugs were kept in
unlocked metal cabinets freely accessible by the athletes, and that
packets of drugs bore no instructions or warnings and were
dispensed by Weber and trainers without authorization or doctor's
orders.
Drs. Park, Harris, Tom Philip Coker and Tom Patrick Coker of
the Ozark Orthopaedic Clinic kept no accurate records to account
for the drugs taken by the athletes, nor did these physicians
attend the rehabilitation sessions for injured players after
football games. Officer Anderson reported that Weber and these
named physicians had been given the NCAA guidelines for dispensing
drugs by Dr. Allen March, a physician at the University Student
Health Center. Dr. March also gave the same information to the
women's athletic department, and while the men's athletic
department failed to comply with the guidelines and federal drug
law, the women's athletic department immediately removed all
prescription medication from its training room. Anderson further
reported that Weber, Dr. Harris and Associate Athletic Director Don
Phillips met with Dr. March, but Weber actively resisted the idea
of complying with the federal laws and new NCAA guidelines, or of
hiring a new physician. Anderson said that Weber had a financial
relationship as a sports medicine consultant with the Ozark
Orthopaedic Clinic, and was paid $1,000.00 per month.
From the foregoing evidence, a fact issue clearly arises
concerning whether Weber, Harper's Food Stores and the named
defendant-doctors were negligent in the illegal and careless manner
in which they dispensed controlled drugs to University athletes.
This is especially so given their expressed and inferred knowledge
of the potential harm that would result to others who would be the
recipients of illegally dispensed drugs. As noted earlier, to be
negligent, the defendants here need not be shown to have foreseen
the particular injury which occurred, but only that they reasonably
could be said to have foreseen an appreciable risk of harm to
others.
And while Weber, Woodell, Harp's Food Stores and the
defendant-doctors urge that no proximate-cause evidence was shown
that Shannon had been supplied or had consumed any of the
controlled drugs in controversy, the record undermines that
assertion. Although Wallace offered no direct testimony that
Shannon received and consumed the Darvocet that was possessed and
dispensed by the University's athletic department, considerable
circumstantial evidence was presented. First, we mention the
evidence that Darvocet was the acknowledged painkiller used in the
athletic program and that it is a mind-altering drug which contains
the active ingredient of propoxyphene. The warning connected to
such ingredient and made a part of the record reads as follows:
Propoxyphene products in excessive doses either
alone or in combination with other CNS depressants
(including alcohol), are a major cause of drug-related
deaths. Judicious prescribing of Propoxyphene is
essential for safety. Consider nonnarcotic analgesics
for depressed or suicidal patients. Do not prescribe
Propoxyphene for suicidal or addition [sic] prone
patients. Because of added CNS depressant effects,
cautiously with concomitant sedatives, tranquilizers,
muscle relaxants, antidepressants or other CNS depressant
drugs. Advise patients of additive depressant effects of
these combinations with alcohol. Many Propoxyphene
related deaths have occurred in patients with histories
of emotional disturbances, suicidal ideation or attempts,
or misuse of tranquilizers, alcohol, or other CNS active
drugs. Do not exceed the recommended dosage. (Emphasis
added.)
As previously discussed, given the potentially harmful side
effects that could result from the unsupervised taking of Darvocet
by the athletes, in general, a fact issue is posed that such harm
could reasonably have been expected in the circumstances described
here, where, it has been said, these defendants had illegally
permitted large orders to be indiscriminately accessible to anyone
entering the athletes' training room. However, this circumstantial
evidence is even stronger than showing the defendants' acts or
omissions might cause an appreciable risk to other athletes; it
further raises the additional, narrow factual issue that Shannon,
in particular, had obtained Darvocet from the athletic department
and consumed it. This proximate-cause evidence bears, too, on the
legal issue concerning whether the actions of Broyles and Weber
were malicious, thus, making them liable in tort even though, as
state employees, they otherwise would be statutorily immune from
suit.
This court has held that malice may be inferred where the
evidence indicates that the defendant acted wantonly in causing the
injury or with a conscious indifference to the consequences. See
Stein v. Lucas, 308 Ark. 74, 823 S.W.2d 832 (1992); National By-
Products, Inc. v. Searcy House Moving Company, Inc., 292 Ark. 491,
731 S.W.2d 194 (1987); Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983). We list the following items of evidence
produced at the summary judgment hearing from which a fact issue
could arise regarding whether Broyles and Weber knew or had reason
to believe their conduct would likely cause injury, whether they
had reason to believe harm could result to Shannon and whether
Shannon had consumed Darvocet from the University athletic
department. We first set out that evidence bearing on the fact
issue of whether Shannon consumed Darvocet that was dispensed from
the athletic program. That evidence is as follows:
(1) Large orders of Darvocet were distributed and
unaccounted for by the athletic department.
(2) Darvocet was the acknowledged painkiller used
in the athletic program.
(3) Weber and Park admitted to violating federal
drug laws related to the storing, dispensing and
accounting of Darvocet.
(4) Joe Toher, a strength coach, averred that,
after Shannon injured his shoulder in a football game,
Toher noticed Shannon's erratic behavior, and Shannon
told Toher that the University had Shannon on Motrin and
"another pain medication."
(5) Steve Robison, a neighbor of Shannon's parents,
said that Shannon told him he was "taking stuff" for his
shoulder injury for pain and the [medicine] was given to
him through the University training room. Shannon told
Robison that he was taking more than he should, and that
he had to "load up on painkillers just to practice with
the team." Robison further averred Shannon said drugs
were available to him at any time.
(6) Wallace testified that, while she had no
personal knowledge Shannon ever took Darvocet, she saw
him take two white caplets in August of 1993, and she
later identified the caplets as looking like Darvocet
pills shown her by the United States District Attorney.
(7) Although Drs. Joe T. Barnes, Chief Toxicologist
for the State Crime Laboratory, and Don McMillan,
Chairman of the University Pharmacy and Toxicology
Department, respectively related that Shannon's blood
stream after death showed an alcohol content of .23% and
no other drugs, and opined that Shannon had no depressant
effect from Darvocet, Wallace furnished rebuttal
statements. In this respect, Andrew Mason, a forensic
toxicologist, testified that Barnes's and McMillan's
interpretations were erroneous conclusions based on
flawed and inadequate analytical studies and were
scientifically unsupported. Mason questioned the
defendants' experts' chain of custody as well as their
testing procedures. In addition, Wallace's other expert,
a professor at the University of Oklahoma Pharmacy and
Medicine College, opined that, even if the active
ingredients in Darvocet had not been detected in
Shannon's blood sample, behavioral effects, including
depression, could last for up to four weeks after an
individual had stopped taking the drug.
In viewing the above evidence in the light most favorable to
Wallace, the nonmoving party, we are compelled to hold a genuine
issue of material fact exists regarding whether Shannon, prior to
his suicide, had been consuming Darvocet from the University's
supply of the drug.
We next list those evidentiary items that create a fact issue
on whether Broyles and Weber acted with such conscious indifference
to the consequences that malice may be inferred. Those items are
as follows:
(1) State investigation showed Weber reported only
to Broyles.
(2) Broyles and Weber were knowledgeable of the
1992 NCAA guidelines and findings concerning the illegal
dispensing of controlled substances, and while Broyles
denied knowing about the dispensing of medication
procedures in the training room until December 1993
(after Shannon's death), he had requested recommendations
in response to the NCAA memo.
(3) Broyles took no steps to change the illegal
medication dispensing procedures and said that none of
his staff or medical professionals advised him that
changes should be made. In contrast, upon receipt of the
NCAA guidelines, the women's athletic department
immediately removed all prescription medication from its
training room.
(4) Broyles is alleged to have had prior knowledge
of an earlier incident involving a football player's
taking Darvocet from the University athletic department's
drug supply and becoming addicted to Darvocet. Debbie
Burns averred her husband, Billy, had played football for
Broyles from 1971 to 1974, and Billy became addicted to
Darvocet through the University football program. Ms.
Burns claims Broyles offered her a legal settlement not
to take legal action against him.
(5) Weber admitted that individuals in the training
center were not qualified to dispense drugs to athletes
and conceded he knew the practice was potentially
harmful. In fact, Weber would use placebos in place of
Darvocet when he thought a football player was requesting
Darvocet too often.
(6) Kelli Sheffield, an assistant trainer and
University instructor, stated that, because of Weber's
opposition, no changes were made in the handling and
dispensing of medication.
(7) Weber pled guilty to a federal criminal charge
of failing to keep records related to the dispensing of
controlled drugs.
(8) Weber knew Shannon had an alcohol problem and
suicidal tendencies, and was aware of the danger when
giving medication to a person experiencing such problems.
Again, when reviewing the foregoing evidentiary items in the light
most favorable to Wallace, we conclude that, at the least, a
material issue exists regarding whether Broyles and Weber acted
with a conscious indifference as to the consequences that
University athletes, and Shannon in particular, could suffer harm
due to the drug-dispensing procedures employed by the athletic
department.
In conclusion, we hold the trial court committed prejudicial
error in utilizing the wrong standard when ruling on the
defendants-appellees' summary judgment motions, and specifically
erred in failing to hold the evidence raised fact issues as to
whether Shannon consumed Darvocet illegally dispensed by the
athletic department and whether those drugs contributed to or
caused Shannon's death. In so holding, we further conclude, as
previously discussed, that at the summary judgment stage of this
litigation, Broyles and Weber are not statutorily immune from suit
for tort liability.
For the foregoing reasons, the trial court's grant of the
defendant-appellees' motions for summary judgment is reversed and
remanded.
Arnold, C.J., Corbin and Thornton, JJ., dissent.
W.H. "Dub" Arnold, Chief Justice, dissenting.
Although the majority correctly notes that the trial court
applied the wrong evidentiary standard, it incorrectly concludes
that Wallace offered proof of any genuine issue of material fact as
to the essential element of causation. The majority's attention to
the irrelevant, albeit unsavory, practices of the Athletic Complex,
ultimately eclipses the well-settled rules of causation and logical
legal argument that settle this case. Proximate causation cannot
be based on mere coincidence. Wirth v. Reynolds Metals Co., 58
Ark. App. 161, 169, 947 S.W.2d 401 (1997). Fair-minded people
could not conclude, without speculation, that allegedly negligent
distribution of narcotics by the Athletic Complex caused Shannon
Wright's suicide.
In meeting its burden of proof, Wallace and this Court engage
in the logical fallacy known as post hoc, ergo propter hoc,
literally "after this, therefore because of this." The fallacy
results from confusing sequence with consequence. See Bryan A.
Garner, A Dictionary of Modern Legal Usage (2d ed. 1995). To accept the
argument that the mere timing of these two events, (i) negligent
distribution of narcotics by the Athletic Complex and (ii) Wright's
suicide, is sufficient to establish a causal connection, is to have
this Court accept the faulty reasoning of post hoc, ergo propter
hoc.
This fallacy in reasoning is aptly described as "Hydra-headed,
and although cut off again and again, has the characteristic of an
endless removal." Kramer Service Co. v. Wilkins, 186 So. 625, 627
(Miss. 1939). See also Wirth v. Reynolds Metals Company, 58 Ark.
App. 161, holding that appellants failed to offer proof of
proximate causation to support their negligence claim, relying on
the persuasive authority of Western Geophys. Co. of America v.
Martin, 174 So. 2d 706 (Miss. 1965), and the precedents upon which
it relies, including Wilkins.
The Mississippi Supreme Court, in the Wilkins case, said:
That heresy is that proof that a past event possibly happened,
or that a certain result was possibly caused by a past event,
is sufficient in probative force to take the question to a
jury. Such was never the law in this state, and we are in
accord with almost all of the other common-law states....
"Post hoc ergo propter hoc" is not sound as evidence or
argument.... Possibilities will not sustain a verdict. It
must have a better foundation....
Wilkins, 186 So. at 627.
The Mississippi Supreme Court also noted, "It is not enough
that negligence of one person and injury to another coexisted, but
the injury must have been caused by the negligence." The mere
possibility that the injury complained of was caused by negligence
is not sufficient to establish proximate causation or to sustain a
verdict. Id.
First, the majority adheres its argument to the testimony of
Wallace that she saw Wright with "two white caplets," which she
claims to have identified later as Darvocet. However, Wallace
failed to present any evidence to the trial court that Wright
obtained the two white caplets from the Athletic Complex.
Second, the majority relies on the affidavit of a professor at
the University of Oklahoma Pharmacy and Medicine College, who
averred that propoxyphene, the active ingredient in Darvocet, may
not be detected in a blood sample although behavioral effects could
persist for four weeks. This line of argument begs the question.
Although the drug's effect may allegedly linger in the body, there
remains no evidence showing that Wright received any Darvocet from
the Athletic Complex.
Further, the Chief Toxicologist for the State Crime Laboratory
and the Chairman of the University Pharmacy and Toxicology
Department presented evidence that Wright's blood stream after
death revealed an alcohol content of .23% and no other drugs.
Additional forensic evidence suggested that Wright had no allergic
reaction. Wallace testified that Wright was allergic to the drug
Wygesic and that he had an earlier episode of a fine, red rash all
over his body when he took that drug. The Dean of the College of
Pharmacy at UAMS testified that the two major active ingredients in
Wygesic are the same as those found in Darvocet, and that if a
person is highly allergic or sensitive to Wygesic, he would have a
high probability of suffering the same or similar allergic or
sensitivity reaction to Darvocet. Moreover, Wallace noted that
Wright had no reaction that she observed after taking the þtwo
white caplets.þ The medical evidence and testimony fail to offer
proof of Wallace's assertion that Wright took Darvocet or received
Darvocet from the Athletic Complex.
Assuming, arguendo, that we permit a jury to reach the
question of Wright's tenuous identification of the two caplets as
Darvocet, we must then permit a jury to consider whether two
caplets constitute "excessive doses" of Darvocet, the amount of the
product identified in the product warning as linked to a "major
cause of drug-related deaths." Again, note that no drugs were
found in Wright's system. There is no evidence that Wright's death
was a "drug-related death," and the only evidence alleged is that
Wallace saw Wright on one occasion with a total of two caplets that
she later identified as Darvocet. There is no genuine issue of
material fact for the jury to weigh.
Third, the majority poises its argument on the affidavit of
the strength coach who stated that Wright told him that he was
taking Motrin and "another pain medication." There is no evidence
presented that this "pain medication" was Darvocet. Additionally,
there remains the absence of any shred of evidence that the "two
white caplets" identified by Wallace were obtained from the
Athletic Complex.
To deny appellees' motion for summary judgment, we must have
some evidence linking these "two white caplets" to the Athletic
Complex. The majority enumerates the evidence that thousands of
units of prescription drugs were distributed to athletes, that
large orders of Darvocet were distributed, and that Darvocet was
the acknowledged painkiller. However, the mere allegation that
Darvocet was available at the Athletic Complex is insufficient to
establish proximate causation or to sustain a verdict. Moreover,
Wallace failed to offer any testimony from any physical trainer,
fellow athlete, or University personnel in support of her theory
that Wright obtained these "two white caplets" from the Athletic
Complex. Indeed, the record is devoid of any testimony
substantiating a causal connection. A myriad of possibilities
remains as to where Wright could have gotten the "two white
caplets." A jury could only conclude based on mere speculation and
conjecture that he got the caplets from the Athletic Complex.
In St. Paul Fire & Marine Insurance Co. v. Brady, 319 Ark.
301, 891 S.W.2d 351 (1995), this Court considered proof of
proximate causation in the negligence context. St. Paul involved
an elderly man whose injury and death might have been attributable
to either a fall at a hospital, an earlier fall at home, or an
aneurysm. The medical testimony indicated that a conclusion
concerning the cause of the injury would be purely speculative, and
all that remained was anecdotal information from a variety of
witnesses. Noting that the jury was left to speculation and
conjecture in deciding between two equally probable possibilities,
this Court held that the trial court erred in failing to direct a
verdict on the issue of the sufficiency of the medical evidence of
proximate causation of injury and death.
Although proximate cause may be proved by either
circumstantial or direct evidence, the proof must tend to eliminate
other causes that may fairly arise from the evidence. St. Paul,
319 Ark. at 306 (citing McAway v. Holland, 266 Ark. App. 878, 599 S.W.2d 387 (1979)). Arguably, the evidence in St. Paul was more
compelling than that in the instant case. The jury in St. Paul had
testimony relating to the two falls as possibilities to consider.
Here, we have no evidence of any causal connection with the one
theory advanced by Wallace. The appellee in St. Paul could at
least prove that the decedent had fallen twice. Here, we have no
evidence that Wright obtained any Darvocet from the Athletic
Complex or that he ever took any Darvocet obtained from any source
whatsoever.
One cause of Wright's death that fairly arises from the
evidence is that Wright committed suicide because he was depressed
over the breakup of his girlfriend, Kit Carson. Wright was a
troubled young man who had been an alcoholic for years. His
alcohol and emotional problems existed prior to his September 11,
1993, football injury and continued until his death. He had
threatened to commit suicide on several occasions. On one
occasion, after an argument with his girlfriend, he slit his
wrists. Prior to his suicide, he had broken up with his
girlfriend. The night he shot himself, Wright told a friend that
he was þvery hurtþ over the breakup þand didnþt care what was going
to happen from then on . . .þ As Wright stated in a note he wrote
shortly before his death, þI have recently just suffered the
biggest loss of my life. Her name was Kit. There is nothing left
but one of two alternatives. Either death or dedication to work.
For now Iþll choose the ladder [sic], so I will plan out every step
of the day . . .Condition -- miserable, empty, burdened.þ He
unfortunately chose the first option. The evidence offered by
Wallace does not tend to eliminate this conceivable yet tragic
possible cause of Wrightþs death.
In another apposite case, a person who had been in an
automobile wreck and no longer had "any get-up-and-go" suddenly
died four weeks after the wreck. McAway v. Holland, 266 Ark. App.
878, 599 S.W.2d 387 (1979). In McAway, the Arkansas Court of
Appeals affirmed the trial court's finding that the death was not
proximately caused by the accident and observed that lay testimony
on cause of death is unacceptable. The court noted:
There is no circumstantial evidence -- even the most
scant -- which suggests a causal connection between the
accident and death. The mere fact both happened about a month
apart proves nothing. If there had been some evidence of
causal connection maybe the lay testimony might have been
slight corroboration. However, standing alone it is
nothing....
McAway, 266 Ark. App. at 883.
The majority opinion clouds the dispositive issues in this
case that mandate affirmance. Even if appellees' failure to
implement appropriate procedures for handling the distribution of
prescription drugs amounted to negligence, Wallace fails to make
the causal connection between that negligence and her son's
suicide, an essential element in her negligence action. Moreover,
the majority's conclusion that appellees acted with malice is
wholly unsupported by the evidence.
A review of the pleadings, depositions, and other filings
reveals, in my opinion, that there is no genuine issue of any
material fact. Viewing all evidence in the light most favorable to
Wallace, and resolving doubts against the appellees, the appellees
are entitled to summary judgement as a matter of law. After
appellees made a prima facie showing of entitlement to summary
judgment, Wallace failed to meet proof with proof, and she is not
entitled to rest on mere allegations or conjecture but must set
forth specific facts demonstrating a genuine issue of fact.
Accordingly, I believe that the trial court's judgment
granting summary judgment in favor of appellees should be affirmed.
Corbin and Thornton, JJ., join.
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