United States Court of Appeals

For the Eighth Circuit

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No. 22-1469

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Christine Turner, Special Administrator of the Estate of Linda Warner, Deceased

other Linda Warner

lllllllllllllllllllllPlaintiff - Appellee

v.

Faulkner County, Arkansas; Chris Riedmueller; Tim Ryals; Bobbie Spivey; Anita

Wright; Michelle Maher; Teresa Coleman; Maria Hill; Taylor Haney; Eric

Whitcomb; Marissa Parks; Katie Martin; Anna Pope; Christopher Lisembey-Hall;

Thaf Kilpatrick; Tyroneisha Collins; Malik Clemons; Calene Scott; Taneisha

Jernigan; Leanne Dixon

lllllllllllllllllllllDefendants

Garry Stewart, M.D.

lllllllllllllllllllllDefendant - Appellant

Karen Grant, L.P.N.; Monte Munyan, L.P.N.; Does, 1-10; Karen Munyan, In her

capacity as special administrator of the estate of Monte Munyan, Deceased other

Monte Munyan

lllllllllllllllllllllDefendants

 ___________________________

No. 22-1492

___________________________
Christine Turner, Special Administrator of the Estate of Linda Warner, Deceased

other Linda Warner

lllllllllllllllllllllPlaintiff - Appellant

v.

Faulkner County, Arkansas; Chris Riedmueller; Tim Ryals; Bobbie Spivey; Anita

Wright; Michelle Maher; Teresa Coleman; Maria Hill; Taylor Haney; Eric

Whitcomb; Marissa Parks; Katie Martin; Anna Pope; Christopher Lisembey-Hall;

Thaf Kilpatrick; Tyroneisha Collins; Malik Clemons; Calene Scott; Taneisha

Jernigan; Leanne Dixon

lllllllllllllllllllllDefendants

Garry Stewart, M.D.

lllllllllllllllllllllDefendant - Appellee

Karen Grant, L.P.N.; Monte Munyan, L.P.N.; Does, 1-10; Karen Munyan, In her

capacity as special administrator of the estate of Monte Munyan, Deceased other

Monte Munyan

lllllllllllllllllllllDefendants

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Appeals from United States District Court 

for the Eastern District of Arkansas - Central

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 Submitted: April 12, 2023

Filed: August 24, 2023

[Published]

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Before COLLOTON, WOLLMAN, and GRUENDER, Circuit Judges. 

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PER CURIAM.

Linda Warner’s appendix ruptured during her incarceration, and she

subsequently died from sepsis. Christine Turner, as special administrator of Warner’s

estate, filed suit against the county in which Warner was incarcerated, as well as

against the individuals involved in her incarceration and medical care, alleging civil

rights claims under 42 U.S.C. § 1983 and tort claims under state law. The medical

malpractice claim against the jail physician, Dr. Garry Stewart, went to trial. All

other claims were settled for $500,000. Stewart moved for judgment as a matter of

law at the close of Turner’s evidence. The district court1 granted the motion, in part,

concluding that Turner had not submitted evidence sufficient to support punitive

damages. The jury returned a verdict for Turner and awarded $1.3 million in

damages. The district court granted Stewart a credit against the verdict for the value

of the settlement, amending the judgment to $800,000. 

Stewart appeals the denial of judgment as a matter of law on the medical

malpractice claim. Turner appeals the grant of judgment as a matter of law on the

punitive damages claim, as well as the grant of credit against the verdict. We affirm.

Medical Malpractice

We review de novo the district court’s denial of a motion for judgment as a

matter of law. Ryan Data Exch., Ltd. v. Graco, Inc., 913 F.3d 726, 732 (8th Cir.

2019). The court may grant judgment as a matter of law when a party, after being

fully heard, has failed to establish a “legally sufficient evidentiary basis” for her

claim. Fed. R. Civ. P. 50(a)(1). Such motion “may be made at any time before the

1The Honorable D.P. Marshall, Jr., United States District Judge for the Eastern

District of Arkansas.

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case is submitted to the jury.” Fed. R. Civ. P. 50(a)(2). If the court does not grant the

motion at that time, the movant may file a renewed motion for judgment as a matter

of law after the entry of judgment. Fed. R. Civ. P. 50(b).

Stewart moved for judgment as a matter of law at the close of Turner’s case-inchief and again at the close of all the evidence. He argued, as relevant here, that

Turner’s expert witness had not established the applicable standard of care in the

locality at issue, as required by Arkansas’ so-called “locality rule.” See Ark. Code

Ann. § 16-114-206(a)(1) (requiring the plaintiff to prove “the degree of skill and

learning ordinarily possessed and used by members of the profession of the medical

care provider in good standing, engaged in the same type of practice or specialty in

the locality in which he or she practices or in a similar locality”). The district court

denied the motions, and Stewart did not renew his motion under Rule 50(b) after

judgment was entered.

Turner argues that we have no basis to review the motion for judgment as a

matter of law because Stewart did not renew it after judgment was entered against

him. See Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407

(2006) (holding that “since respondent failed to renew its preverdict motion as

specified in Rule 50(b), there was no basis for review of respondent’s sufficiency of

the evidence challenge in the Court of Appeals”). Stewart contends that he was not

required to renew his motion because it raised a question of law for the court to

decide—i.e., whether Turner’s expert established the standard of care in the locality

in which the care was provided. We do not address this argument because we

conclude that Stewart has, in effect, challenged the sufficiency of the evidence to

support the standard-of-care element of Turner’s medical malpractice claim. He thus

was required to renew his motion to preserve the issue for appeal.

Under Arkansas law, the local standard of care is an element of a medical

malpractice claim. See Gambill v. Stroud, 531 S.W.2d 945, 949 (Ark. 1976) (“The

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opportunities available to practitioners in a community are certainly matters of fact

and not law and may be shown by evidence under our own locality rule.”) The

Arkansas Model Jury Instructions thus require the jury to “determin[e] the degree of

skill and learning the law required.” AMI 1501. A malpractice-claim plaintiff must

establish that a physician failed to apply with reasonable care the degree of skill and

learning ordinarily used by physicians in the same or similar locality. The district

court gave the model instructions in this case, which are presumed to be correct. 

Thomas v. State, 257 S.W.3d 92, 103 (Ark. 2007). Whether Turner’s expert’s

testimony satisfied the locality rule thus was a question of fact that was submitted to

the jury, which necessarily found by its verdict that the rule had been satisfied.

Stewart misreads Williamson to mean that satisfaction of the locality rule is a

“pure question of law” that is considered only by a judge. Williamson ruled only that

failure to prove the local standard of care is not an objection that must be raised

during the testimony of an expert witness. 72 S.W.3d at 492. Rather, the issue may

be raised in a motion for directed verdict. Id. As the Arkansas Court of Appeals later

explained, the establishment of the local standard of care is not a matter of

“foundation” (i.e., not an evidentiary-type objection), but rather “an issue going to

sufficiency of the evidence” that may be raised in a motion for directed verdict. 

Heritage Physician Grp., P.A. v. Minton, 432 S.W.3d 682, 686 (Ark. Ct. App. 2014). 

Consistent with Heritage, Stewart did not argue that the expert’s testimony was

inadmissible; he raised only a sufficiency argument. See Appellant’s Br. 13 (“Dr.

Stewart did not move to disqualify Dr. Fowlkes as unqualified under the Federal

Rules of Evidence. He moved for directed verdict because Turner failed to meet her

burden of proof.”). His argument thus required a renewed motion for judgment as a

matter of law to be preserved for appeal. Because Stewart did not renew his motion,

he did not preserve his challenge to the sufficiency of the evidence and thus we do

not reach the merits of his appeal.

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Punitive Damages

Turner argues that she was entitled to have the jury decide whether to award

punitive damages. The punitive damages question must be submitted to the jury if

there is “substantial evidence to support a punitive damages instruction.” Stein v.

Lukas, 823 S.W.2d 832, 834 (Ark. 1992); Lockley v. Deere & Co., 933 F.2d 1378,

1389 (8th Cir. 1991) (looking to state law for standard). Substantial evidence is that

which is “of sufficient force and character to compel a conclusion one way or the

other with reasonable certainty.” D’Arbonne Constr. Co. v. Foster, 123 S.W.3d 894,

897 (Ark. 2003). A jury may award punitive damages when the plaintiff has shown

that 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.” Ark. Code Ann.

§ 16-55-206(1). 

Turner argues that the evidence supports the instruction because it creates an

inference that Stewart knew that Warner had a serious medical problem but did not

treat her. Warner was in fact offered treatment for her known medical needs,

including her diabetes, incontinence, and rash. Stewart did not examine her when she

came for an appointment because he considered her uncooperative, but he prescribed

Prozac to address her behavior and followed up with her family doctor to discuss it. 

Warner did not complain of abdominal pain, and Stewart did not know of her

appendicitis. The evidence thus does not “compel a conclusion . . . with reasonable

certainty” that Stewart acted with malice or reckless disregard of the consequences

of his conduct such that malice could be inferred. See D’Arbonne Constr. Co., 123

S.W.3d at 897.

Turner argues in the alternative that the district court erred in limiting the

testimony of her expert witness, Dr. Thomas Fowlkes. After Fowlkes described

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Stewart’s conduct as “reckless,” the court instructed him not to use legal terms,

though it did not strike the testimony. We find no abuse of discretion in the district

court’s limitation of the expert’s testimony. Jacobson Warehouse Co., Inc. v.

Schnuck Mkts., Inc., 13 F.4th 659, 675 (8th Cir. 2021) (standard of review). 

Although Fowlkes was not permitted to express his opinion in legal terms such as

“reckless” or “negligent,” he nevertheless offered ample testimony regarding

Stewart’s conduct and any deviations from the standard of care. We do not believe

that the court’s decision to preclude the use of legal terms like “reckless” would have

had any bearing on its decision to grant judgment as a matter of law on punitive

damages.

Credit Against the Verdict

Turner appeals the district court’s decision to give Stewart a credit against the

verdict for the amount of settlement, arguing that Stewart and the settled parties were

not joint tortfeasors and so Arkansas’s Uniform Contribution Among Tortfeasors Act

(UCATA) does not apply. UCATA requires the court to reduce the damages

recoverable against a defendant when the plaintiff releases a joint tortfeasor. Ark.

Code Ann. § 16-61-204(c). Joint tortfeasors are those “who may have joint liability

or several liability in tort for the same injury to person or property, whether or not

judgment has been recovered against all or some of them.” Id. § 16-61-201(1). We

review de novo the district court’s application of state law. Cnty. of Ramsey v.

MERSCORP Holdings, Inc., 776 F.3d 947, 950 (8th Cir. 2014).

Turner’s complaint alleged claims against Faulkner County, the Faulkner

County Sheriff, officers at the Faulkner County Detention Center (FCDC), and

medical staff at FCDC (collectively, the Faulkner County Defendants), as well as

Stewart, the FCDC’s contract physician. The complaint included § 1983 claims

against all defendants for deliberate indifference to serious medical needs, cruel and

unusual punishment, and equal protection violations; a negligence claim against all

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defendants; and a medical malpractice claim against medical staff and Stewart. 

Turner’s complaint alleged that each of these claims resulted in Warner’s pain,

suffering, and death; she also alleged that the medical malpractice and negligence

claims resulted in bodily harm. Turner and the parties reached a settlement agreement

resolving all claims except the medical malpractice claim against Stewart.

Turner argues that Stewart and the Faulkner County Defendants were not joint

tortfeasors because they were not liable for the same injury. With respect to the

§ 1983 claims, she argues that the constitutional violations occurred at a different

time and independently of Stewart’s medical malpractice. Timing is not dispositive

of the joint tortfeasor question, however. In Applegate v. Riggall, a patient sued her

physician for medical malpractice after he allegedly damaged her ureter during

surgery, requiring her to undergo a second surgery for the removal of her kidney. 318

S.W.2d 596, 597 (Ark. 1958). The physician filed a third party complaint against the

physician who removed the kidney, arguing that the second physician’s negligent

diagnosis and recommendations led to the unnecessary removal of the kidney and the

related harms. Id. at 598. The Supreme Court of Arkansas wrote,

The sole question to be determined is simply whether [the second

physician] is a proper party defendant in this action. [He] argues that the

two doctors cannot be held to be joint tortfeasors, because any alleged

injuries received from either by plaintiff were separate and distinct

injuries; that under the law, tortfeasors, acting independently, are jointly

liable to a plaintiff, and liable to each other in contribution, only when

the independent acts of each, cause or contribute to the same injury

obtained by a plaintiff. We consider the latter assertion to be a correct

statement of the law, but even so, we do not agree that [the first

physician] is precluded from filing his third party complaint. While it

is true that a part of plaintiff’s complaint deals with alleged injuries

occurring before [the second physician] entered the picture, nonetheless,

it is apparent from reading the portions of the complaint heretofore

quoted, that a substantial part of the damage complained of was

allegedly caused by the loss of the kidney. In other words, the suit is

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based upon all the injuries received by plaintiff, and suffering

occasioned thereby.

Id.2

Applying Applegate here, we conclude that Stewart and the Faulkner County

Defendants caused the same injuries. Like the plaintiff in Applegate, Turner’s

original suit against the Faulkner County Defendants was based on all of her injuries,

a substantial part of which were allegedly caused by Stewart. Even if some of her

injuries occurred prior to or independently of Stewart’s conduct, Arkansas law does

not preclude the Faulkner County Defendants from being joint tortfeasors. We

conclude that Stewart and the Faulkner County Defendants were liable for the same

injuries and were thus joint tortfeasors with regard to the § 1983 claims.

Moreover, it matters not that separate wrongdoings caused Warner’s

injuries—that is, that the § 1983 claims arose from constitutional violations and the

medical malpractice claims arose from negligence. UCATA does not focus on the

cause of the injury or the policy reason for imposing liability. It focuses on the injury,

which Turner has alleged is the same for the § 1983 claims as it is for the medical

malpractice claim.

Finally, Turner argues that because the Faulkner County Defendants were not

liable for the negligence and medical malpractice claims, they could not be joint

tortfeasors with Stewart. See Indus. Iron Works, Inc. v. Hodge, 595 S.W.3d 9, 12

(Ark. Ct. App. 2020) (A nonparty that is statutorily immune from liability in tort

“cannot have joint or several ‘liability’ in tort and therefore does not meet the

definition of ‘joint tortfeasor’ in the UCATA.”). Arkansas counties are statutorily

“immune from liability and from suit for damages except to the extent that they may

2Although post-Applegate the statutory definition of “joint tortfeasor” has been

amended and recodified, the definition does not differ in any way material to this

case.

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be covered by liability insurance.” Ark. Code Ann. § 21-9-301(a). Before settling

with Turner, the Faulkner County Defendants asserted this immunity as an affirmative

defense, but the issue was never litigated and decided. 

We decline to decide whether the defendants would have succeeded in their

affirmative defense had they not settled. Turner asserted that the parties were liable

when she brought her claims. Because the claims raised the same injuries as were

alleged to have been caused by Stewart, the parties were joint tortfeasors. We

conclude that the district court did not err in granting Stewart a credit against the

verdict for the settlement.

The judgment is affirmed.

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