Task Force Recommends Adding “Same Specialty” Requirement to A.R.E. 702

The final report (2014 Ark. 47) of the Supreme Court Task Force on Practice and Procedure in Civil Cases was released today.   The prior interim report and proposals were previously discussed here:


This final report chronicles the history of the “same specialty” requirement in medical malpractice cases from Justice George Rose Smith’s decision in Cathey v. Williams, 290 Ark. 189 (1986), the enactment of Act 649, to the invalidation of the “same specialty” requirement in Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 14 (as impinging on the authority of the court to decide who may testify under what conditions pursuant to Amendment 80).

The Task Force proposes to incorporate the “same specialty” requirement into Rule 702 of the Arkansas Rules of Evidence.   The proposed new rule can be found at page 11-12 of the report linked here:


The Supreme Court has requested comments from the bench and bar.  They should be directed to:

Les Steen, Clerk of the Supreme Court
Attention: Task Force
Justice Building
625 Marshall Street
Little Rock, AR 72201

Court of Appeals Reversed: Hollandsworth Presumption Does Not Apply in Joint Custody

I previously blogged about Bishop v. Singletary, 2013 Ark. App. 394, a custody case where the parents shared joint custody, the mother proposed a move out-of-state, and the trial court changed custody to the father.


On appeal, a split en banc panel of the Court of Appeals reversed the trial court, saying the Hollandsworth presumption would apply even in a joint-custody situation.   Recall Hollandsworth v. Knyzweski, 353 Ark. 470, 109 S.W.3d 653 (2003), announced a presumption in favor of a custodial parent’s relocation, and that relocation alone would not constitute a material change of circumstances to justify a change of custody.

But that decision (and blog post) can be relegated to the dust bin of history because the Court of Appeals decision in Bishop was taken on review by the Arkansas Supreme Court and the Supreme Court reached the opposite conclusion.

A 5-2 decision of the Supreme Court vacated the Court of Appeals opinion and affirmed the trial court.   The majority held: “We clarify today that the Hollandsworth relocation presumption applies only in those cases where a parent has been granted sole or primary custody of a child.   We further clarify that the Hollandsworth relocation presumption simply does not apply when the parents share joint custody of a child.”   The decision goes on to announce the analysis to be applied when a court faces a change in custody request involving a joint custody arrangement.   The trial court must first find a material change in circumstances, and then determine if a change of custody is in the best interests of the child, citing Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002).

The full text of the Supreme Court’s decision can be found here:


Special Task Force on Practice and Procedure Issues Report

The Arkansas Supreme Court published an interim report of the special task force appointed last year to address several recurring issues in the civil justice system.   Their report includes recommended changes to several important rules, and a discussion of the rationale for the proposed changes.   The Court is now soliciting comments and further reports from the task force before deciding whether to implement the proposed changes.

The full report can be found here:


Comments should be submitted in writing to Les Steen, Clerk of the Supreme Court,
Attention: Task Force, Justice Building, 625 Marshall Street, Little Rock, AR 72201. The
comment period shall expire on March 14, 2014.

Here are some verbatim excerpts from the report:

In a per curiam order issued August 2, 2013, the Supreme Court established the Task Force to
consider problems with and recommend changes in the court-adopted procedural rules that
pertain to “parties, liability, and damages in civil litigation involving negligence, medical
malpractice, and related cases.”

The Task Force devoted more time to allocation of nonparty fault than to any other issue but
in the end could not reach consensus. Nevertheless, seven of the nine voting members agreed on
the recommendation included in this report.

In brief, the Task Force recommends adding new provisions to three Rules of Civil
Procedure: Rule 9(h), Rule 49(c), and Rule 52(a)(2). Rule 9(h) would be the exclusive procedural
mechanism for asserting the substantive right to an allocation of nonparty fault under Ark. Code
Ann. §§ 16-60-201 & 16-60-202(c), as amended by Act 1116 of 2013. Like similar rules in other
states, Rule 9(h) requires a defendant to assert a contribution claim for allocation of nonparty fault
in an answer or amended answer.

This pleading requirement assures notice to all parties and must be met if a nonparty’s fault
is to be determined by the trier of fact, as provided in proposed Rules 49(c) and 52(a)(2).
However, it does not apply to a nonparty whose status stems from a settlement with the plaintiff;
by statute, the trier of fact must determine a released joint tortfeasor’s “pro rata share of
responsibility” for the plaintiff’s damages. Ark. Code Ann. § 16-61-204(d).

The proposed additions to Rules 49 and 52 provide that, in actions for personal injury,
medical injury, wrongful death, or property damage, the trier of fact must “determine the fault of
all persons or entities, including those not made parties, who may have joint liability or several
liability” for the alleged harm if: (1) the plaintiff has settled with the nonparty, or the defendant
has given the notice required by Rule 9(h), and (2) the defendant has carried its burden of
establishing a prima facia case of the nonparty’s fault. The italicized language within the quotation
is taken from Ark. Code Ann. § 16-61-201 and is intended to be coextensive with the statute.

Under both rules, apportionment of fault to a nonparty is to be used only for determining
the percentage of fault of the parties, and a finding of fault can neither subject a nonparty to
liability in any action nor be introduced as evidence of liability in any action. These provisions are
based on Section 2 of Act 649 of 2003, the Civil Justice Reform Act. Section 2, codified at Ark.
Code Ann. § 16-55-202, was invalidated on separation-of-powers grounds in Johnson v. Rockwell
Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).