In the November 17, 2010 opinion Young v. Kajkenova, 2010 Ark. App. 783, the Arkansas Court of Appeals held that a circuit court must weigh the facts and circumstances before making a discovery sanctions order.
In November 2008, appellant and estate representative Lawrence Young, refiled his previously nonsuited medical malpractice lawsuit. After appellee Oumitana Kajkenova, M.D. filed his answer, the circuit court entered a scheduling order and set an October 27, 2009 jury trial.
Kajkenova propounded discovery in January 2009. In June, Kajkenova still had not received any responses. Kajkenova’s attorney sent repeated letters to Young’s attorney asking for the responses and stating that he wanted to depose any experts Young would call at trial.
Kajkenova finally filed a motion to compel on August 10, 2009 to which Young did not respond. On September 4, 2009, the court entered an order compelling responses to the discovery requests and requiring that all Young’s witnesses be made available for deposition by September 25, 2009. Continue reading ACOA: Court Must Weigh Circumstances Before Imposing Discovery Sanctions
In the December 9, 2010 opinion Orr v. Hudson, 2010 Ark. 484, the Arkansas Supreme Court held that when a plaintiff appeals a dismissal when he or she had the opportunity to plead further (i.e., by filing a new lawsuit), an affirmance of the dismissal means that the dismissal is with prejudice.
Appellant Tasha Orr, individually and as an estate representative, brought a medical negligence and wrongful death suit in Lee County Circuit Court against two doctors, Appellee Stephen Hudson, M.D., and Appellee Timothy Calicott, M.D. Per Rule 12(b)(3) of the Arkansas Rules of Civil Procedure, the Lee County Circuit Court granted the doctors’ motion to dismiss the complaint due to improper venue. Orr appealed, and the dismissal was affirmed.
Orr then filed her complaint in Faulkner County Circuit Court. The circuit court granted the doctors’ motion to dismiss that complaint on the basis that Orr had waived her right to plead further when she appealed the first dismissal and there was an affirmance. In Orr v. Calicott, 2009 Ark.App. 857, the Arkansas Court of Appeals disagreed, affirming the circuit court in part and reversing and remanding in part. Continue reading SCOA: Appeal of 1st Dismissal, If Affirmed, Bars Further Pleading
In the December 9, 2010 opinion Looney v. Blair, 2010 Ark. 479, the Arkansas Supreme Court affirmed a circuit court’s order granting a Rule 12(f) motion to strike an untimely answer to a counterclaim.
Appellants Shane and Monica Looney had been served with a counterclaim filed by Appellee Faye Blair on February 9, 2009. The Looneys did not file their answer until April 23, 2009, about seven weeks after the March 4 due date. Blair filed a motion to strike the untimely answer, but did not file a motion for default. Continue reading SCOA: Striking Untimely Counterclaim Answer Is Proper