Representative Cases of Baker Schulze & Murphy
What we mean by “our firm.
These were cases we were involved in at the trial level or on appeal, but almost always working with another lawyer in the firm with which we practiced. The firm name changed frequently as people went their separate ways. But we consider our firm to be the successor of all of these firms for the simple reason that we kept the telephone number (501) 537-1000 and the logo that was originally associated with the firm. We began in 2000 as Eubanks, Welch, Baker & Schulze. Then Morgan E. “Chip” Welch (now Judge Welch) left to form his own firm, but we still continued to work closely with that firm on the cases we had already undertaken as a team. As mentioned above, Chip Welch later was elected Circuit Judge.
Eubanks, Baker & Schulze operated until Herman Eubanks left to form his own firm. Then Ruthanne Murphy joined us, and we formed Baker Schulze & Murphy. Ruthanne has recently begun to retire, but retirement isn’t all that easy in this business.
Here are some typical and significant cases I have been involved in with “our firm.”
One National Bank v. Pope, 372 Ark. 208, 272 S.W.3d 98 (2008). This case is significant because of the roughly $2.5 million dollar verdict that was affirmed, but because it clarified damages for loss of life under Arkansas law.
This was a tragic case. A mother and her two daughters were killed when a minister, driving back from a church fishing trip with a passenger from his church, fell asleep at the wheel. His car collided with the car driven by the mother, Lorrie Kaz, and her daughters, Dusti and Julianne. All three were killed instantly. One National Bank was appointed administrator of their estates. This case was pursued against the minister, the church, and its insurance company. The church and the insurer denied liability, contending that the minister was an independent contractor and that he was outside the course and scope of his employment at the time of the accident. Another issue was the question of “loss of life” damages under Arkansas law. The question was what evidence was necessary to prove entitlement to loss of life damages. The trial judge held that the evidence was sufficient to submit the issue to the jury as to the daughters, but as to the mother, the judge held the evidence insufficient. The jury awarded loss of life and mental anguish damages on the estates of the two daughters, but was only allowed to award mental anguish damages to the mother’s surviving children. After the verdict, the church and insurer appealed the judgment on the issue of their responsibility for the minister. The estate appealed the trial judge’s decision not to submit the loss of life element to the jury. On appeal, the Arkansas Supreme Court upheld the jury’s determination that the church and its insurer should have been responsible for the minister’s actions. The Supreme Court also held that the evidence for loss of life for the mother had been sufficient to submit the case to the jury. This case will be significant as it will help lawyers and judges know what evidence is necessary to prove entitlement to “loss of life” damages under Arkansas law. As to the church’s liability, this case is somewhat unusual as it occurred at a time that Arkansas law on charitable immunity was unclear. In more recent decisions, the Arkansas Supreme Court has clarified the law and made it clear that charitable immunity does exist, and that the proper defendant is the charity’s liability insurance carrier. During the time this case was pending, the law was unclear, so the only safe procedure was to maintain the lawsuit against both. Further, we contended that the language of the church’s insurance policy made the minister himself an “insured” under the policy. There was collateral litigation about that issue as well.
The Trial Judge decided that we had not introduced enough information about one of the three people who died in the accident to submit her estate’s claim for damages for loss of life to the jury. The Supreme Court reversed and remanded the case for trial on that issue.
Broussard v. St. Edward Mercy Health Svs., Inc, 2012 Ark. 14, 386 S.W.2d 385
We successfully argued before the Arkansas Supreme Court that the requirement that an expert witness be of the same specialty as the defendant was unconstitutional. This case has been relied on numerous times since it was decided.
Aon Risk Services, Inc. v. Meadors, 100 Ark.App. 272, 267 S.W.3d 603 (2007). This was a business case. Neither party was happy with the result. The jury awarded us $2.5 million, but the trial court reduced the award to $1.2 million. Both we and the defendant appealed the case to the Court of Appeals. At the Court of Appeals, our judgment was reinstated in the amount of $2.4 million.
Bismarck Sch. Dist v. Sims, 2012 Ark. App. 239, 406 S.W.3d 805; Sims v. Director, 2013 Ark. App. 241; Sims v. Dir., 2014 Ark. App. 512. We represented a high school counselor who was the scapegoat for problems that were not his fault and that he had no control over. The Plaintiff was fired for not noticing an error involving Arkansas Department of Education changes in the rules for graduation. Plaintiff’s supervisors had been given notice of the change, but Plaintiff had not. The Trial Court overturned the Bismarck School District’s decision. That was affirmed by the Arkansas Court of Appeals.
Not only was he fired, his unemployment was denied. We were able to get him compensation under the Teacher Fair Dismissal Act. We also prevailed in the Employment Security case, but it took two trips to the Court of Appeals to do it. This case teaches the value of persistence.
Smith v. Rebsamen Med. Ctr., Inc., 2012 Ark. 441, 424 S.W.3d 876;
Smith v. Rebsamen Med. Ctr, Inc., 2011 Ark. App 722, 387 S.W.3d 193. See below. This was a case we inherited when Ruthanne Murphy joined the firm. Ruthanne was working with Dr. James Keever, who was both a lawyer and a physician. For details see the section Arkansas Supreme Court Review, below.
Shelton v. Kennedy Funding, Inc., 622 F.3d 943 (8th Cir. 2010). The “significance” of this case to me is an adventure I had getting to the Eighth Circuit. Our client was elderly, and if there was any way to move this case forward quickly, we needed to take it. I went to the airport to fly to St. Louis for this oral argument. Unfortunately, my flight was canceled because of the weather. I decided to drive to St. Louis. On my way, I ran into an ice storm and my car slid off the road. I scraped the paint off of the front of the car. Fortunately, a tow truck came by and pulled me out of the ditch. I drove on to St. Louis and made it in time for the oral argument. After I got home, I never got around to having the car repainted. It still has the paint missing on the front of the car as of this writing (April 6, 2022). I have had this car since 2004, and I plan to keep driving it until it wears out.
Warnock v. Archer, 397 F.3d 1024 (8th Cir., 2005); This case gave me the chance to have an interesting oral argument at the United States Court of Appeals for the Eighth Circuit. This case involved the enforcement of a judgment in a previous case that we handled, see Warnock v. Archer, 380 F.3d 1076 (8th Cir., 2004).
Landers v. Stone, 2016 Ark. 272, 496 S.W.3d 370. We lost this case. Why are we including a case that we lost? The reason is that four sitting Circuit Judges hired our firm to challenge the judicial retirement statutory scheme which in effect forces judges to retire when they pass a certain age or forfeit their pensions. This scheme is contrary to the public interest in that it essentially assumes that judges become unfit once they reach retirement age. This has cost our state many talented and experienced judges. The only remedy now is with the General Assembly, and we’ll take this chance, once again, to ask that they correct this injustice.
Cases in which we worked with other trial lawyers
McCoy v. Montgomery, 370 Ark. 333, 259 S.W.3d 430 (2007). This is one of many cases in which we have had the privilege of working with Bobby McDaniel, one of the most active and successful tort lawyers in the state.
The plaintiff lost a leg because of unnecessary surgery. The jury awarded $2,800,000 in actual damages, $200,000 in loss of consortium, and $500,000 in punitive damages. This case was tried by Bobby McDaniel and John Burnett, and we were brought in to draft motions and briefs at the trial level, and for the appeal. There were some complex procedural issues dealing with service of process, but this case is remarkable for the award of punitive damages against a physician in a medical negligence case. The evidence was that the physician falsified records to make an unnecessary surgery seem necessary and performed a “botched” surgery ultimately resulting in the amputation of the plaintiff’s leg. After an exhaustive review of all the evidence, the Arkansas Supreme Court held that, “In viewing the evidence in the light most favorable to the Montgomerys, we hold there was sufficient evidence for the jury to have determined that McCoy engaged in malicious conduct in his treatment of Montgomery, warranting an award of punitive damages.” This case is worthy of study. It will be a landmark for many years in determining under what circumstances a physician can be held liable for punitive damages. This case is also notable for the highly unusual behavior of one of the expert witnesses for the defendant, who unilaterally refused to answer questions posed to him at his deposition.
Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754 (2004). A pharmacist gave the plaintiff the wrong medication. Plaintiff took the medication for approximately two days. His symptoms did not improve and finally his wife inspected the medication and discovered that he had been given the wrong medication. As a result of the error, the plaintiff suffered damage that ultimately resulted in post-traumatic stress disorder. The case was handled at trial by John Burnett. We were brought in for the appeal. A verdict of $840,000 was affirmed.
Barner v. Thompson Center, LLC, 796 F.3d 897 (8th Cir. 2015), On this case we had the privilege of working with Gary Holt and Connie Grace of Gary Holt and Associates (the successor firm of Gary Eubanks and Associates, my former employer), as well as Addison Goff of Ruston, Louisiana. After problems with service of process on the predecessor corporation of the defendant, the trial court dismissed the case with prejudice. Our firm was brought into the case. We appealed to the Eighth Circuit and reversed the dismissal. The case was remanded for trial. One of the reasons this case is here, though, is that this was one of the most enjoyable oral arguments we’ve ever had the opportunity to present. Go to 25:30 if you want to skip to the part we like.
Cases we handled when we were with previous employers.
Boerner v. Brown & Williamson Tobacco Co., 260 F.3d 837 (8th Cir. 2001). I was at Gary Eubanks and Associates for seventeen years. While I was there, I was involved in a lot of mass tort litigation (breast implants, tobacco, and fen phen). This was a wrongful death case against a tobacco company. The trial court granted summary judgment to the cigarette manufacturer. We appealed to the Eighth Circuit. I wrote the brief. I left the firm after that. Gary Holt handled the oral argument. The Eighth Circuit reversed and remanded the case for trial. Gary Holt got a verdict in one of the few individual victories against a tobacco company outside California or Florida. The jury awarded $4,015,000 in compensatory damages and $15,000,000 in punitive damages. The Court of Appeals affirmed the compensatory damages award, but reduced the punitive award to $5,000,000.
First Commercial Trust Co. v. Rank, 323 Ark. 390, 915 S.W.3d 262 (1996). This is an important medical malpractice case on the question of the locality rule. Arkansas requires that a medical malpractice plaintiff prove that the defendant medical provider fell below the standard of care in the locality in which he or she practices, or a similar locality. In order to make the proof, the plaintiff must ordinarily have an expert witness testify as to what the standard of care is, that the defendant failed to meet the standard, and that the failure to meet the standard of care proximately caused the injury suffered by the plaintiff. The issue here was what constituted proof of a similar locality. The trial court found that plaintiff’s expert did not know the standard in Hot Springs or a similar community. The Supreme Court reversed and remanded the case for trial. Gary Holt tried the case. On retrial, the jury found for the plaintiff. The judgment for the plaintiff was affirmed on appeal in Stecker v. First Commercial Trust Co., 962 S.W.2d 792, 331 Ark. 452 (Ark. 1998).
Jacuzzi Bros., Inc. v. Todd, 316 Ark. 785, 875 S.W.2d 67 (1994). This is an important premises liability case. My partner, then a co-employee at Gary Eubanks and Associates, Darryl E. “Chip” Baker tried the case and got a judgment of $612,500. The verdict was affirmed on the condition that we accept a reduction of $12,500.
Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993). There are very few circumstances in which a plaintiff is entitled to a directed verdict on an issue. This was one of those very few circumstances. We appealed the trial court’s failure to direct a verdict on the issue of our client’s fault. The Supreme Court agreed with us and reversed the case for a new trial. Hugh Spinks tried the case.
The significance of the cases I have chosen
What are “reported cases”?
Reported cases refer to cases published in the case reporters. In Arkansas, those cases are all cases on appeal. In the federal system some District Court (trial court) decisions are published. In Arkansas, publication was in the official Arkansas Reporter up until 2010, and online since then. In the Federal system, private publishers (primarily West’s) choose the cases for publication.
The meaning of “reported cases” has evolved. At one time, almost all cases of the Arkansas Supreme Court were published in the official reporter. Shortly before I began practicing, the Arkansas Court of Appeals was created. The Arkansas Court of Appeals did not publish all of its decisions. The goal was to limit the number of opinions. Only opinions with substantial precedential value were to be published. Only published decisions could be cited as precedent. There was some dissatisfaction with the concept of unpublished decisions, and on at least one occasion I won a case that I thought was very significant. The Court of Appeals did not, and did not designate it for publication. A motion to publish was filed with the Court. The motion was denied. The case is not the law, except for my individual clients. In 2009 the Arkansas Supreme Court abolished the distinction between published and unpublished decisions. From July 1, 2009 on, all opinions issued are precedent.
Many law firms like to post results of trials, settlements, and appeals on their webpages. We have no problem with that. But we respectfully suggest that what should be interesting to the public is cases that have actually had an impact on the law. For this reason, we are restricting this list to cases that you can actually read in the official reports.
Before the Arkansas Supreme Court switched to online publication, official reporters were published. The format of the official reporters is the volume number, Ark. or Ark. App. and the page number. If you see 372 Ark. 208, you can go to the law library (or the Internet) and read the case. Many cases have parallel citations for the Southwest Reporter (West’s). The format is the same. Volume number S.W. (2d or 3d) and page number. So 272 S.W.3d 98 is in volume 272 of the Southwest Reporter (3rd series), on page 98.
Once the Arkansas appellate courts switched to online publication, the format changed. The format is now the year, Ark. or Ark.App, then the number. Each case is paginated separately. With the cite 2012 Ark. 441 you can find the case easily online. It is the 441th case decided by the Arkansas Supreme Court in the year 2012. Citations to West’s Southwest Reporter may be available, but West’s does not publish all cases. We think they intend to only publish important cases, but that their judgment of what is important is not very persuasive.
We also have some federal cases in the list. At the appellate level, the cases are reported in the Federal Reporter (F, F2d, and F3d. We suspect before long we’ll have a 4th). The arrangement is the same. The volume, the series of the reporter, then the page number. So 397 F.3d 1024 means volume 397 of Federal Reporter, third series, starting on page 1024.
Arkansas Supreme Court Review
The Arkansas Supreme Court is the highest court in the Arkansas appellate system. From time to time, the Arkansas Supreme Court reviews cases decided by the Court of Appeals. The review is usually granted because there is a significant issue to be resolved.
The grant of review is not necessarily a sign that the Arkansas Supreme Court wants to change the result. As can be seen from our cases in which the Supreme Court granted review, the Supreme Court often reaches the same result, and sometimes even for the same reason. As a technical matter, the decision of the Court of Appeals is always vacated, and the Supreme Court decision becomes the final decision. We have been involved in cases which have gone from the Court of Appeals to the Supreme Court. Some relevant samples follow.
Berryhill v. Synatzske, 2014 Ark. 169, 432 S.W.3d 637 and Berryhill v. Synatzske, 2013 Ark. App. 483. This is a case in which I worked with Bud Whetstone and Kevin Odum. Mary Berryhill sued Frances Synatzke, alleging that Synatzke was responsible for a car accident between Berryhill and Synatzke. Berryhill also sued a “John Doe” that was designated to represent the estate of any defendant who predeceased the service of the complaint. At the time the complaint was filed, however, Synatzke had died. After the statute of limitations had passed, Berryhill filed an amended complaint naming Synatzke’s estate as a party. The estate filed a motion for summary judgment asserting that the original complaint was a nullity because Synatzke had died prior to the filing of the original complaint, and therefore, the complaint could not be transformed into a valid suit by amending the complaint after the statute of limitations had passed. The circuit court granted summary judgment for the estate. The Court of Appeals reversed, holding (1) because the identity of the tortfeasor, the estate, was unknown to Berryhill at the time she filed her original complaint, Ark. Code Ann. 16-56-125 was applicable to her claim and tolled the statute of limitations; and (2) because there was a valid pleading to relate back to, the real party, the estate, could be substituted for the John Doe defendant in the original complaint. The Estate of Synatzske asked the Arkansas Supreme Court to review the decision. The Arkansas Supreme Court did review the decision, and reached the same result as the Court of Appeals for the same reasons. The decision was close, though. It was a 4-3 decision in our favor.
Smith v. Rebsamen Med. Ctr., Inc., 2012 Ark. 441, 424 S.W.3d 876 and Smith v. Rebsamen Med. Ctr, Inc., 2011 Ark. App 722, 387 S.W.3d 193. This case was significant because it helped to solidify the law that one division of the circuit court cannot disregard the orders of another division of the Circuit Court. Plaintiff petitioned to be special administrator of the estate of the decedent. The Probate Division notified Plaintiff’s counsel that the order appointing Plaintiff as the special administrator had been entered. On the basis of that, Plaintiff filed a medical malpractice wrongful death case against the Defendants. Plaintiff’s counsel then learned that the Probate order had not been entered, and asked the Probate Court for an order that the appointment was effective “nunc pro tunc” before the filing of the malpractice case. The judge in the malpractice case found that the Probate order was ineffective and dismissed the case. The Arkansas Court of Appeals ruled that the Circuit Judge in the malpractice case could not disregard the ruling of the Circuit Judge in the Probate case and remanded the case for trial. Defendants asked the Supreme Court to review the case. The Supreme Court did review the case, and held that “The civil division of circuit court lacked any authority to invalidate or disregard the order from the probate division, which established that Appellants had been appointed as co-special administrators prior to the filing of the wrongful-death complaint.” Again, the Supreme Court reached the same conclusion as the Court of Appeals.
Nat’l Bank of Ark. v. River Crossing Partners, LLC, 2011 Ark. 475, 384 S.W.3d 754 and Nat’l Bank of Ark v. River Crossing Partners, LLC, 2010 Ark. App. 841. This is an example of a case in which the Supreme Court granted review for the purpose of making a subtle correction. The Court of Appeals held that the “clean up doctrine” applied in the case. The “clean up doctrine” allowed a chancery court to resolve all issues when a case involved both legal and equitable claims. Under the law before Amendment 80, chancery courts and circuit courts were different courts. After Amendment 80, the circuit and chancery courts were merged, and all are circuit courts. We asked the Arkansas Supreme Court to review on the basis that the “clean up doctrine” should not have survived Amendment 80. The Arkansas Supreme Court took the case and reviewed it. The Court reached the same result, but did not base its decision on the “clean up doctrine.” Whether the “clean-up doctrine” survives Amendment 80 remained undecided. The Court of Appeals decision that applied the “clean-up doctrine” in this case was vacated.
Campbell v. Entergy Ark., Inc., 363 Ark. 132, 211 S.W.3d 500 (2005); court of appeals decision unpublished. We appealed a defense verdict, arguing that the circuit court erred when it submitted the issue of comparative fault to the jury by special interrogatories without affording him the opportunity to argue the effect of answers to those interrogatories as provided by Ark.Code Ann. § 16-64-122(d)(Supp.2003). The Arkansas Court of Appeals reversed the verdict, and Entergy filed a petition for review, which the Supreme Court granted because it presented an important issue of law. The Arkansas Supreme Court agreed with us and the Court of Appeals that the procedure used by the circuit court violated section 16-64-122(d). Again, the same result was reached for the same reason.
Certainly the Supreme Court can reach a different result from the Court of Appeals, and often does. But just because the Supreme Court grants a request for review is no reason to celebrate (if you lost) or panic (if you won). Each case turns on its own facts and the relevant law.