Cite as 2024 Ark. App. 419

ARKANSAS COURT OF APPEALS

DIVISION IV

No. CV-23-198

SHARON DENISE DUKE

APPELLANT

V.

RONALD JAY MULLIS, M.D., 

INDIVIDUALLY; NORTH HILLS 

SURGERY CENTER, L.L.C.; OZARK 

SURGICAL ASSOCIATES, LLC; 

RONALD JAY MULLIS, P.A.; 

WASHINGTON REGIONAL MEDICAL 

CENTER; LAMMICO RISK

RETENTION GROUP, INC.; AND 

JOHN/JANE DOES 1–10

APPELLEES

Opinion Delivered September 11, 2024

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT

[NO. 72CV-18-2658]

HONORABLE DOUG MARTIN,

JUDGE

AFFIRMED

KENNETH S. HIXSON, Judge

This is a medical-malpractice case. Appellant Sharon Denise Duke (Sharon) appeals 

from an order granting summary judgment in favor of Ronald Jay Mullis, M.D.; North Hills 

Surgery Center, LLC; Ozark Surgical Associates, LLC; Ronald Jay Mullis, P.A.; Washington 

Regional Medical Center; and LAMMICO Risk Retention Group, Inc. (collectively 

“appellees”). The trial court’s entry of summary judgment was premised on Sharon’s failure 

to produce any expert opinions or testimony in support of her claim of medical negligence 

or that the alleged negligence proximately caused her damages. On appeal, Sharon argues 
2

that the trial court’s order should be reversed because the appellees failed to show there are 

no genuine issues of material fact, discovery was not yet complete, and the court’s ruling was 

premature. We affirm.

I. Facts and Procedural History

On September 28, 2018, Sharon filed a medical-malpractice and negligence action 

naming as defendants all the appellees except LAMMICO Risk Retention Group, Inc. 

Sharon later amended her complaint and added LAMMICO, which is Washington Regional 

Medical Center’s liability-insurance carrier, as a defendant. Sharon alleged that she sustained 

injuries and damages that arose from a series of medical procedures and care related to Dr. 

Mullis’s treatment of her various abdominal and gastrointestinal maladies. The appellees 

filed timely answers to the complaint and amended complaint, generally denying liability.

Almost three years after the commencement of the case, on September 22, 2021, the 

trial court entered an order setting the case for a seven-day jury trial beginning on May 15, 

2023. A year later, on October 3, 2022, separate counsel for Dr. Mullis, Ozark Surgical 

Associates, and Mullis, P.A., sent a letter to the trial court informing it that counsel for all 

parties had agreed to the terms of a scheduling order to keep the case on track for trial, and 

a proposed agreed scheduling order was submitted for the court’s consideration.

Approximately four years after the commencement of the case, on October 5, 2022, the trial 

court entered the proposed agreed scheduling order. Among other provisions, the agreed 

scheduling order stated that Sharon “shall disclose the identity of and provide a summary of 
3

opinions of any expert witnesses no later than October 13, 2022, and shall make all expert 

witnesses available for their depositions no later than November 28, 2022.” 

Sharon failed to provide the required disclosures on or before the agreed deadline of 

November 28, 2022. On November 29, 2022, the appellees collectively filed a joint motion 

for summary judgment. In their motion, the appellees alleged that they were entitled to 

summary judgment because the agreed deadlines had passed, and Sharon had failed to 

produce any expert opinions or testimony in support of her claim for medical negligence or 

that such alleged negligence was the proximate cause of her damages. The appellees asserted 

that they had propounded interrogatories to Sharon in 2018, and they attached to their 

motion Sharon’s November 30, 2018, responses to their discovery requests. In these 

interrogatories, the appellees had requested the names of Sharon’s expert witnesses and a 

summary of their opinions. In Sharon’s response, after objecting to the interrogatories as 

premature, Sharon answered in pertinent part:

Plaintiff has not at this time determined which expert witness Plaintiff will call at a 

hearing or trial in this matter. Plaintiff may call Dr. Richard Newman of Trinity 

Health of New England Group, Hartford, CT, and Plaintiff may call any of Plaintiff’s 

treating physicians as experts in this action. Plaintiff will timely supplement her 

response to this request as discovery continues. 

(emphasis added). The appellees alleged in their motion that, since answering their 

interrogatories on November 30, 2018, Sharon had not stated that she would call Dr. 

Newman as an expert witness at trial nor had she supplemented her discovery responses or 

provided any opinions of Dr. Newman or any other expert. Noting that the case had been 

pending for more than four years and that the agreed deadlines had passed for Sharon to 
4

produce expert testimony to support her claims, the appellees argued that Sharon could not 

prove the essential elements of her case and that the appellees were entitled to judgment as 

a matter of law.

On December 15, 2022, Sharon filed a response to the appellees’ summary-judgment 

motion asking that it be denied. In her response, Sharon acknowledged that her malpractice 

claim required her to present evidence from medical experts to support her allegations. 

However, Sharon argued that genuine disputes over material facts still existed, that discovery 

had not been completed, and that the appellees’ motion was premature. Sharon also stated 

that she had provided the appellees with the name of an expert witness in November 2018 

(Dr. Richard Newman) but that the appellees had failed to depose her expert despite having 

more than four years to do so.

On December 29, 2022, the appellees filed a reply to Sharon’s response. In their 

reply, the appellees argued that Sharon had attempted to shift the burden of discovery in her 

malpractice case to the appellees, and the appellees were under no obligation to request a 

deposition of someone who was never specifically identified as a testifying expert. The 

appellees asserted that Sharon never stated she would, in fact, call Dr. Newman as an expert 

witness nor did she provide any expert opinions in response to the appellees’ interrogatories 

and pursuant to the agreed scheduling order.

On December 30, 2022, separate counsel for Dr. Mullis, Ozark Surgical Associates, 

and Mullis, P.A., sent a letter to the trial court stating that the joint motion for summary 

judgment had been filed, Sharon had responded, a reply had been filed, the motion was ripe 
5

for consideration, and the issues were straightforward and could be ruled on by the court 

based on the pleadings. Sharon did not respond to the request for the trial court to rule on 

the pleadings nor did she request a hearing. On January 12, 2023, separate counsel for 

North Hills Surgical Center, Washington Regional Medical Center, and LAMMICO also 

sent a letter to the trial court informing it that all parties were in agreement that there was 

no need for a hearing, and the parties were asking the court to rule on the pending summaryjudgment motion.

On January 12, 2023, the trial court entered an order granting the appellees’ motion 

for summary judgment and dismissed Sharon’s amended complaint as to all defendants with 

prejudice. This appeal followed.

II. Standard of Review

Summary judgment is appropriate if no genuine issues of material fact exist for trial.

Valentine v. White Cnty. Med. Ctr., 2020 Ark. App. 565, 615 S.W.3d 729. Once the moving 

party has demonstrated an entitlement to summary judgment pursuant to Arkansas Rule of 

Civil Procedure 56, Arkansas law shifts the burden to the nonmoving party, who must show 

that a genuine issue of material fact remains. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 

563, 11 S.W.3d 531 (2000). At this point, the responding party “must discard the shielding 

cloak of formal allegations and meet proof with proof by showing a genuine issue as to a 

material fact.” Id. at 569, 11 S.W.3d at 536.

To establish a prima facie case of negligence, the plaintiff must demonstrate that the 

defendant breached a standard of care, that damages were sustained, and that the 
6

defendant’s actions were a proximate cause of those damages. Reggans v. Schlesinger, 2024 

Ark. App. 227, 687 S.W.3d 387. Proximate causation is an essential element for a cause of 

action in negligence. Id. 

In medical-malpractice actions, unless the asserted negligence could be 

comprehended by a jury as a matter of common knowledge,1a plaintiff has the additional 

burden of proving three propositions by expert testimony: the applicable standard of care; 

the medical provider’s failure to act in accordance with that standard; and that the failure 

was the proximate cause of the plaintiff’s injuries. Ark. Code Ann. § 16-114-206(a) (Repl. 

2016).2 In such cases, it is not enough for an expert to opine that there was negligence that 

was the proximate cause of the alleged damages; the opinion must be stated within a 

reasonable degree of medical certainty. Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 148 

S.W.3d 754 (2004). When the defendant demonstrates the plaintiff’s failure to produce the 

requisite expert testimony, the defendant has demonstrated that no genuine issues of 

material fact exist and is therefore entitled to summary judgment as a matter of law. Gonzales 

v. Cont’l Cas. Co., 2022 Ark. App. 501, 659 S.W.3d 277. The moving party is not required 

to support its motion with affidavits or other materials further negating the plaintiff’s claim. 

Hamilton v. Allen, 100 Ark. App. 240, 267 S.W.3d 627 (2007). 

 

1

In this case Sharon did not argue either below or on appeal that the asserted 

negligence could be comprehended by a jury as a matter of common knowledge. 

2The portion of this statute limiting expert opinions to medical-care providers of the 

same specialty as the defendant was held unconstitutional in Broussard v. St. Edward Mercy 

Health Sys., 2012 Ark. 14, 386 S.W.3d 385.
7

III. Arguments on Appeal

In this appeal, Sharon argues that summary judgment should not have been granted

because genuine issues of material fact remained to be resolved. Although Sharon 

acknowledges that she was required to produce expert testimony to establish her claims for 

medical negligence and that she had not produced such expert testimony when the appellees 

filed their motion for summary judgment, she characterizes this as a discovery issue and 

contends that, although she missed a discovery deadline, that is an insufficient basis for 

granting summary judgment. Sharon states that, prior to filing their motion for summary 

judgment, the appellees were first required to avail themselves of Rule 37 of the Arkansas 

Rules of Civil Procedure, which requires a party to apply for an order compelling discovery 

before certain sanctions are invoked, including but not limited to, dismissal of an action.

Sharon further asserts that, although she had not produced expert testimony, she did disclose 

her prospective expert, Dr. Richard Newman, in her November 2018 discovery responses 

and that the appellees never attempted to depose Dr. Newman. Sharon also states that the 

appellees presented no evidence to support their summary-judgment motion, which she 

claims relieved her of her duty to meet proof with proof. Sharon cites several cases in which

summary judgment was upheld on appeal where the plaintiff had submitted proposed expert 

testimony that was deemed insufficient,3and she attempts to differentiate this case because,

here, there was no expert testimony from any party. Finally, Sharon argues that summary 

judgment was entered prematurely because the parties had not completed discovery, and she 

 

3

See, e.g., Dodd v. Sparks Reg’l Med. Ctr., 90 Ark. App. 191, 204 S.W.3d 579 (2005).
8

was not given the opportunity to fully develop her case and seek redress for the damages she 

incurred as a result of the appellees’ negligence. We do not agree with any of Sharon’s 

arguments.

This case is fairly straightforward. Sharon filed her medical-malpractice action in 

September 2018, and in her November 2018 discovery responses, she stated that she had 

not determined which expert witness she would call, that she may call Dr. Richard Newman 

as an expert, and that she would timely supplement her response as discovery continued. 

Despite the passage of four intervening years, Sharon never produced any expert opinions 

or testimony to satisfy her burden of establishing that there was medical negligence that 

proximately caused her alleged damages. This is true despite her agreement as reflected in 

the October 5, 2022, agreed scheduling order that she would disclose the identity of and 

provide a summary of opinions of any expert witnesses no later than October 13, 2022, and 

that she would make all expert witnesses available for their depositions no later than 

November 28, 2022. When the appellees moved for summary judgment on November 29, 

2022, and when the trial court granted the appellees’ summary-judgment motion on January 

12, 2023, Sharon—by her own admission—had not produced the requisite expert testimony. 

This entitled the appellees to summary judgment as a matter of law. See Gonzales, supra.

Although Sharon attempts to characterize the issue as simply one of discovery, we 

disagree. With respect to Sharon’s argument that the appellees were required to file a motion 

to compel discovery under Rule 37 before filing their motion for summary judgment, we 

observe that this issue is not preserved for review because it was not raised below. See Worden 
9

v. Kirchner, 2013 Ark. 509, 431 S.W.3d 243 (stating the well-settled rule that we will not 

consider arguments raised for the first time on appeal). Because this issue was not raised 

below, it is not before this court on appeal; hence, we will not address the issue of whether 

Rule 37 is implicated in this situation. Furthermore, we do not agree with Sharon’s claim 

that the appellees’ failure to depose Dr. Newman precluded summary judgment. Sharon 

never stated she would in fact call Dr. Newman as an expert witness, and it was Sharon’s burden

to produce the expert testimony, which never occurred in this case.

With respect to Sharon’s claim that the appellees were not entitled to summary 

judgment because they offered no proof in support of their motion, this argument also misses 

the mark. When the defendant demonstrates the plaintiff’s failure to produce the requisite

expert testimony, the defendant has demonstrated that no genuine issues of material fact 

exist and is therefore entitled to summary judgment as a matter of law. Gonzales, supra. 

Therefore, when the appellees demonstrated that Sharon had failed to produce the expert 

testimony, they were entitled to summary judgment. Further, Sharon’s assertion that no 

expert testimony was offered by either party (as opposed to proposed expert testimony that 

was deemed insufficient)—if anything—draws further attention to the insufficiency of her 

case. Contrary to Sharon’s claim, the complete failure to identify an expert and offer expert 

testimony on negligence and proximate causation is a proper ground for granting summary 

judgment in a medical-malpractice action. See Reagan v. City of Piggott, 305 Ark. 77, 805 

S.W.2d 77 (1991). 
10

Finally, we also disagree with Sharon’s claim that the trial court’s ruling was 

premature. In the agreed scheduling order, which was entered more than four years after 

Sharon had filed her action, she agreed to disclose her experts, provide a summary of her 

expert testimony, and make her expert witnesses available for depositions by a certain date—

and Sharon admittedly failed to comply with these agreed directives. When Sharon 

responded to the appellees’ summary-judgment motion, she did not request a continuance 

as permitted by Rule 56(f)4nor did she submit an affidavit stating the reasons why she could 

not present by affidavit facts essential to justify her opposition. Although Sharon claims that 

she was not given the opportunity to fully develop her case, the record shows otherwise as 

she had more than four years to produce the required expert testimony in support of her 

claims.

IV. Conclusion

Having reviewed the record, we hold that because the appellees demonstrated that 

Sharon failed to produce the requisite expert testimony, the appellees established that no 

genuine issues of material fact existed, and they were therefore entitled to summary judgment 

as a matter of law. Moreover, for the reasons stated herein, we conclude that the trial court’s 

entry of summary judgment was not premature. We find no error by the trial court;

accordingly, the order of summary judgment is affirmed.

 

4Rule 56(f) provides, “Should it appear from the affidavits of a party opposing the 

motion that he cannot for reasons stated present by affidavit facts essential to justify his 

opposition, the court may refuse the application for judgment or may order a continuance 

to permit affidavits to be obtained or depositions to be taken or discovery to be had or may 

make such other order as is just.”
11

Affirmed.

THYER and MURPHY, JJ., agree.

Putman Law Office, by: William B. Putman, for appellant.

Cox & Estes, PLLC, by: James R. Estes, for separate appellees Ronald Jay Mullis, M.D.; 

Ozark Surgical Associates, LLC; and Ronald Jay Mullis, PA.

Carithers Johnson Davenport, by: Kelly Carithers, for separate appellees North Hills 

Surgery Center, LLC; Washington Regional Medical Center; and LAMMICO Risk 

Retention Group.