Old Dominion Freight Line, Inc.; And Aaron Marvell Foster v. Frank McMillion, Allen Jones, Carlton Pettus, Hunter Bokker, Bengi Bokker, and Zack Billingsley

Cite as 2026 Ark. 169

SUPREME COURT OF ARKANSAS

No. CV-22-305

OLD DOMINION FREIGHT LINE,

INC.; AND AARON MARVELL

FOSTER

APPELLANTS

V.

FRANK MCMILLION, ALLEN JONES,

CARLTON PETTUS, HUNTER

BOKKER, BENGI BOKKER, AND

ZACK BILLINGSLEY

APPELLEES

Opinion Delivered: November 5, 2026

APPEAL FROM THE ST. FRANCIS

COUNTY CIRCUIT COURT

[NO. 62CV-20-141]

HONORABLE E. DION WILSON,

JUDGE

AFFIRMED; COURT OF APPEALS'

OPINION VACATED.

COURTNEY RAE HUDSON, Associate Justice

Appellants Old Dominion Freight Line, Inc. (Old Dominion), and Aaron Marvel Foster appeal from the St. Francis County jury verdict awarding $75 million in damages to appellees Trooper Frank McMillion, Corporal Allen Jones, Carlton Pettus, Hunter Bokker, Bengi Bokker, and Zack Billingsley. For reversal, appellants argue that (1) the circuit court erred in refusing to direct a verdict in their favor on the basis of appellees' failure to establish toxic-tort proximate causation through expert testimony; (2) the circuit court erred in refusing to direct a verdict in their favor or partially direct a verdict in their favor due to appellees' failure to establish proximate causation; (3) the circuit court erred in refusing to direct a verdict in their favor on the basis that appellees' claims were preempted by federal law; (4) the circuit court erred in refusing to direct a verdict in their favor on the basis of

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the professional-rescuer's doctrine; (5) alternatively, the circuit court erred in refusing to instruct the jury on the required showing of proximate cause and on the professional- rescuer's doctrine; (6) the circuit court abused its discretion when it refused to exclude the testimony of appellees' experts, Robert Richard, David Dorrity, and Dr. Scott Manaker; (7) the circuit court abused its discretion when it refused to allow them to cross-examine Trooper Ponder regarding prior specific instances of untruthfulness; (8) the circuit court abused its discretion when it refused to select a new jury pool that had not previously interacted with a court bailiff in his professional capacity when the bailiff was also an essential nonparty witness for appellees; (9) the circuit court abused its discretion when it excluded certain relevant evidence and allowed inadmissible evidence to be admitted; (10) the circuit court abused its discretion in failing to grant a mistrial or give a curative instruction about appellees' use of a "shadow jury"; (11) the circuit court abused its discretion in handling the punitive damages issue when it refused to bifurcate the punitive damages claim in its entirety and refused to preclude appellees' counsel from utilizing the Reptile Theory; and (12) the circuit court erred when it denied their motion for new trial or remittitur. We affirm on all points.

I. Factual and Procedural History This is a case about six men—two law enforcement officers and four members of a towing crew—who responded to a fatal accident involving a tractor-trailer carrying a toxic substance. Those first responders, some as young as twenty-five and twenty-six years old, now suffer from a variety of permanent injuries—reactive airway dysfunction syndrome (RADS), chronic obstructive pulmonary disease (COPD), asthma, and gastroesophageal

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reflux disease (GERD)—all of which were caused or exacerbated by their exposure to that toxic substance. Appellees' injuries will only worsen with age and have already affected every aspect of their lives, from their ability to perform their jobs and serve their communities, to their relationships with friends and family, including their daily activities with their children and/or grandchildren, and even their most intimate interactions with their wives. Expert testimony established that these men will live the rest of their days as if

"breathing through a straw."

The tractor-trailer accident occurred on Highway 70 in St. Francis County on April 20, 2018. At approximately 3:00 p.m. that afternoon, a pickup truck driven by Charles Henley crossed the center line and collided head-on with an Old Dominion semitruck driven by Foster, causing it to overturn and catch fire. The parties stipulated that Henley, who was killed in the collision, was the sole cause of the accident. Foster was able to kick out a window of the semitruck and escape. One of the double trailers that Foster was hauling contained a large barrel of formic acid, which is a hazardous material. The barrel weighed 565 pounds. Because the barrel weighed less than 1001 pounds, the Hazardous Materials Transportation Act (HMTA) did not mandate that the trailer display a hazardous-materials placard, although Old Dominion could have chosen to do so under the federal permissive- placarding rule.

Appellees filed suit against Old Dominion and Foster in July 2020, alleging negligence claims.¹Appellees requested compensatory damages for their permanent injuries

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and pain and suffering. They also sought punitive damages. A jury trial was held on December 7-15, 2021.

At the trial, St. Francis County Sheriff's Deputy Jeff Goff testified that he arrived at the scene of the accident at approximately 3:30 p.m. He stated that he asked Foster whether there were any hazardous materials on the trailers and that Foster responded no. Deputy Goff then reported to dispatch that no hazardous materials were on board. Arkansas State Police Trooper Keith Ponder responded to the scene at 3:32 p.m. He testified that he had also asked Foster whether he had been hauling hazardous materials and that Foster replied that he had not. Trooper Ponder stated that he, too, notified dispatch that no hazardous materials were involved. Foster and another witness denied that Trooper Ponder had asked Foster about the presence of hazardous materials. Arkansas State Trooper Frank McMillion was the first appellee to arrive at the scene at 3:53 p.m. After an hour and a half to two hours, he smelled an unusual odor that he had not experienced when working other crashes involving smoke and fire. Trooper McMillion began feeling lightheaded, dizzy, and nauseous, and he retreated to his vehicle to get some fresh air. He continued his investigation after he began feeling better. Later, after the towing company began clearing the wreckage, Trooper McMillion smelled a strong, pungent odor similar to chlorine that burned his nose and his throat. He testified that it felt as if someone had put their hand over his nose and mouth and that he could not breathe. He also saw the towing company crew quickly leave the area. Trooper McMillion notified dispatch at 7:49 p.m. that they had all inhaled a foreign substance and requested an ambulance.

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Corporal Allen Jones with the St. Francis County Sheriff's Office responded to the scene at 6:45 p.m. He reported that at around 7:30 p.m., the towing crew quickly walked away from the wreckage, complaining about a chemical that had spilled. Although Corporal Jones was one hundred feet away from the trailer, he stated that when the wind changed direction, his nasal passages began burning and he had a metallic taste in his mouth. He then moved farther away to wait for the fire department and the ambulances to arrive. FleetNet America, Old Dominion's provider for roadside and recovery services, contacted White Motor Company, a local family-owned and operated tow-truck company, to assist with cleanup. Bengi Bokker, Hunter Bokker, Zack Billingsley, and Carlton Pettus, the remaining appellees, were employed by White Motor Company and responded to the scene between 4:00 and 4:30 p.m. Billingsley testified that as they were surveying the scene to determine whether the wreckage was cool enough to hook up the tow chains, they suddenly smelled a terrible odor. He described it "as if somebody came up to you with a wet washcloth and stuck it over your nose and mouth and just took your breath completely away." Billingsley further testified that his nose and eyes were burning. Pettus stated that he had been around burning vehicles before; however, he described the odor that he suddenly experienced at this scene as similar to the smell of silicone but much stronger. He testified that it felt "like somebody stuck a sack" over his head because he could not breathe and that his eyes and nose were also burning. Bengi stated that he first noticed the odor after twenty to thirty minutes of working on the scene, and like the others, he described it as different from the smell of burning tires or other wreckage. He testified that, at one point, the

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chemical odor became so intense it was like someone had put a pillow over his face. Bengi stated that he could not breathe and that he felt a burning sensation in his nose and mouth. The appellees all testified that they sought emergency medical treatment that evening. Old Dominion did not notify law enforcement that the trailer contained formic acid until 8:51 p.m. that night--more than five hours after the accident--which is when Trooper Ponder received an email from the company along with the bill of lading and safety data sheet for the formic acid. The safety data sheet indicated that formic acid is a corrosive substance that has "acute toxicity" when inhaled.

Appellees also presented the testimony of several experts at trial. Robert Richard testified with regard to the hazardous-materials statutes and regulations applicable to transportation companies such as Old Dominion, which he stated is the third largest trucking company in the United States. David Dorrity testified about safety standards in the trucking industry, and Dr. Scott Manaker testified that appellees' exposure to the formic acid caused them to suffer permanent injuries. This testimony, along with the evidence regarding each appellee's specific injuries, will be discussed in more detail below. The trial was bifurcated, with phase one to determine liability for compensatory and punitive damages and the amount of compensatory damages, if any, and phase two to determine the amount of punitive damages, if any. At the conclusion of phase one, the jury returned a verdict finding that Old Dominion, through its employees, was negligent for not disclosing to the emergency-response authorities the presence of a hazardous material and that Old Dominion's negligence was a proximate cause of appellees' injuries. The jury awarded a total of $75 million in compensatory damages to appellees but determined that

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Old Dominion was not liable for punitive damages. Therefore, no phase two was necessary. The judgment was entered on December 17, 2021. Appellants filed a timely motion for new trial or remittitur on December 22, arguing that the damages awarded were excessive. The circuit court did not rule on the motion, and it was deemed denied after thirty days. Appellants filed a timely notice of appeal from the judgment, as well as the deemed denial of their posttrial motion. Appellants also filed an amended notice of appeal from the circuit court's May 5, 2022 order disposing of any unresolved claims or cross-claims. On appeal, the court of appeals affirmed in part, reversed in part, and ordered a new trial. Old Dominion Freight Line, Inc. v. McMillion, 2025 Ark. App. 400, 715 S.W.3d 490 (substituted opinion on grant of rehearing). Specifically, the court of appeals held that the circuit court abused its discretion by denying the motion for new trial or remittitur because the damages awarded were not supported by substantial evidence. Id. at 61, 715 S.W.3d at

530. The court of appeals affirmed the remaining points on appeal. We granted appellants' petition for review on September 25, 2025.²When we grant a petition for review, we treat the appeal as though it had been originally filed in this court. Cooper v. Kalkwarf, 2017 Ark. 331, 532 S.W.3d 58.

II. Analysis A. Proximate Causation

2 This case was originally submitted on March 5, 2026, and it was orally argued on that date. It was pulled from submission on October 1, 2026, and Special Justice Cory Cox was appointed to replace Justice Barbara Webb. On October 8, Justice Rhonda Wood denied a motion to recuse filed by appellees. The case was then resubmitted on October 22,

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In appellants' first point on appeal, they argue that the circuit court erred by refusing to direct a verdict in their favor on the basis of appellees' failure to establish toxic tort proximate causation through expert testimony. Specifically, appellants claim that in a case such as this one, appellees were required to prove both general and specific causation. Appellants further contend in their second point on appeal that even if a heightened toxic- tort standard was not required, appellees still did not prove proximate causation. Because these two points are related, we discuss them together.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Calvary Christian Sch., Inc. v. Huffstuttler, 367 Ark. 117, 238 S.W.3d 58 (2006). We review the denial of a motion for directed verdict to determine whether the jury verdict is supported by substantial evidence. City of Little Rock v. Nelson ex rel. Nelson, 2020 Ark. 34, 592 S.W.3d

633. Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty, and it must force the mind to pass beyond mere suspicion or conjecture. Union Pacific R.R. Co. v. Barber, 356 Ark. 268,

149 S.W.3d 325 (2004). When determining the sufficiency of the evidence, we view the evidence in the light most favorable to the party on whose behalf judgment was entered, and we give that evidence the highest probative value. Huffstuttler, supra. In conducting our review, we do not try issues of fact; rather, we examine the record to determine whether there is substantial evidence to support the verdict. Nelson, supra. Questions of law, however, are reviewed de novo. Id.

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While we have not specifically addressed the need to present evidence of both general and specific causation in a toxic-tort case, the court of appeals discussed this issue in Richardson v. Union Pacific R.R. Co., 2011 Ark. App. 562, at 3-4, 386 S.W.3d 77, 80:

A toxic tort plaintiff must adduce evidence of both general and specific causation. [Aurand v. Norfolk S. Ry. Co., 802 F. Supp. 2d 950 (N.D. Ind. 2011).] General causation addresses whether a particular agent can cause a particular illness. Id. Specific causation addresses whether that agent in fact caused the particular plaintiff's illness. Id. There is a two-step process in examining the admissibility of causation evidence in toxic-tort cases. First, the trial court must determine whether there is general causation; second, if it concludes that there is admissible general- causation evidence, it must determine whether there is admissible specific-causation evidence. Id. In toxic-tort cases, an expert may be able to testify that a chemical can cause the plaintiff's illness, but not that this chemical caused this particular illness. Id. Differential etiology is a methodology commonly used to determine the cause of an illness. Id. The doctor rules in all of the potential causes, and then, by systematically ruling out causes that would not apply to this plaintiff, the doctor arrives at what is the likely cause of the illness. Id. Whether such a methodology supporting an expert's opinion is reliable is determined on a case-by-case basis. Id. The plaintiff in Richardson alleged that his multiple myeloma was caused by years of exposure to diesel fuel and exhaust, creosote, and pesticides while he was employed with the railroad. The circuit court granted summary judgment to the defendant after ruling that plaintiff's experts were not qualified to testify about the causal relationship, and the court of appeals affirmed. Id. at 34, 386 S.W.3d at 99.

In Chavers v. General Motors Corp., 349 Ark. 550, 79 S.W.3d 361 (2002), this court also applied a heightened causation standard in a toxic-tort case. The plaintiff in Chavers claimed that exposure to asbestos in the defendant's products caused his mesothelioma. We adopted the "frequency, regularity, and proximity" test and held that the plaintiff was required to prove that (1) he was exposed to a particular asbestos-containing product made by the defendant; (2) with sufficient frequency and regularity; (3) in proximity to where he

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actually worked, (4) such that it was probable that the exposure to the defendant's products caused his injuries. Id. Then, in Green v. Alpharma, Inc., 373 Ark. 378, 284 S.W.3d 29 (2008), we extended the frequency, regularity, and proximity test to plaintiffs who alleged that their child had contracted leukemia due to exposure to arsenic-laced chicken litter that was spread on nearby farms and polluted the air, soil, and water in and around the town where they lived.

While appellees' negligence suit is clearly based on their exposure to a toxic chemical, we disagree with appellants that a heightened standard of proof of causation, as was required in Richardson, Chavers, and Green, is necessary in every toxic-tort case. As the court of appeals recognized in TMG Cattle Co., Inc. v. Parker Com. Spraying, LLC, 2018 Ark. App. 144, 540 S.W.3d 754, there is a significant difference between a case in which the plaintiff's injuries are the result of long-term exposure to a toxic substance and a case involving isolated exposure. In TMG Cattle, the appellant discovered eighteen dead cows on his property, all located in and around a pond adjacent to where appellee had sprayed urea fertilizer on a wheat field several days earlier. A veterinarian testified on behalf of the appellant and concluded that "he was 95% certain that that the cows died from ammonia toxicosis, despite the lack of laboratory evidence." Id. at 6, 540 S.W.3d at 758. The court of appeals reversed the circuit court's grant of summary judgment to the appellee, holding that the testimony that the cows were healthy before they died, that the deaths were sudden, that all eighteen cows died at the same time in the same area, that urea fertilizer had been sprayed within days of the deaths in the immediate vicinity of where the cows died, and that urea ingestion can cause the death of a cow were sufficient to raise a factual question on the proximate-

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cause issue. Id. at 9-10, 540 S.W.3d at 760. The court of appeals rejected the appellee's contention that the "frequency, regularity, and proximity" test applied to the isolated or one-time-exposure scenario in that case.

All causal determinations require inferential reasoning, and reasonable inferences are left to the jury's collective experience and common sense. Restatement (Third) of Torts § 28 cmt. b (2025). It is only when the inferential leap from the evidence to the conclusion is too great that courts will intervene to declare that juries may not speculate, and the matter is removed from the province of the jury. Id. As the Restatement notes, cases involving toxic substances can often pose difficult problems with respect to proof of causation as compared to other types of cases:

In most traumatic-injury cases, the plaintiff can prove the causal role of the defendant's tortious conduct by observation, based upon reasonable inferences drawn from everyday experience and a close temporal and spatial connection between that conduct and the harm. Often, no other potential causes of injury exist. When a passenger in an automobile collision suffers a broken limb, potential causal explanations other than the collision are easily ruled out; common experience reveals that the forces generated in a serious automobile collision are capable of causing a fracture. By contrast, the causes of some diseases, especially those with significant latency periods, are generally much less well understood.

Id. cmt. c. However, not all toxic-tort cases involve the same level of proof, and circumstances in individual cases are sufficiently variable that courts must employ a flexible approach to proof of causation. Id. While courts often address "exposure," "general causation," and "specific causation," these are not elements of a plaintiff's cause of action and in some cases may not require separate proof. Id. "So long as the plaintiff introduces admissible and sufficient evidence of factual causation, the burden of production is satisfied."

Id.

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This case involves isolated exposure to a toxic substance, and appellees sought immediate medical treatment following their exposure. This is not a long-term-exposure case and does not involve a disease with a significant latency period, such as in Richardson, Chavers, and Green. Instead, this case is more like TMG Cattle. As is explained in Gerald W. Boston, A Mass-Exposure Model of Toxic Causation: The Content of Scientific Proof and the Regulatory Experience, 18 Colum. J. Env't L. 181, 188-89 (1993), an isolated-exposure case is more like a typical tort case in which the testimony of a treating physician can establish sufficient proof of causation:

In isolated exposure cases, where only a single plaintiff or a few persons have allegedly suffered harm from a toxic exposure, it is fair and reasonable to allow the traditional sporadic accident model to exert greater influence. A medical doctor is permitted to render an opinion as to whether, to a reasonable degree of medical certainty, exposure to Agent X caused the plaintiff's physical disability. This standard of causation will be referred to as the "testifying treating physician" standard[.] . . . In rendering an opinion on causation under this standard, the expert is not typically required to demonstrate the existence of supporting epidemiological data (or even much other toxicological proof) in order to justify admission of that opinion and to reach a jury on that issue.

Here, the testimony of Dr. Manaker, who examined appellees and reviewed their medical records, combined with appellees' testimony and the remaining evidence establishing the close temporal and spatial connection between the toxic exposure and their injuries, presented sufficient evidence of causation to create an issue of fact for the jury. The circuit court therefore did not err by denying appellants' motion for directed verdict based on their argument that a heightened standard of causation was required in this case. We also disagree with appellants' second argument that appellees did not prove proximate causation even under the traditional standard. The jury was required to find that appellants were the proximate cause of appellees' injuries. See AMI Civ. 203 (2022).

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Proximate cause is defined as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produced the injury, and without which the result would not have occurred. Neal v. Sparks Reg'l Med. Ctr., 2012 Ark. 328, 422 S.W.3d 116. Proximate cause may be shown from circumstantial evidence, and such evidence is sufficient if the facts proved are of such a nature and are so connected and related to each other that the conclusion may fairly be inferred. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). Proximate causation is usually a question of fact for the jury. Neal, supra. It is undisputed that Old Dominion's trailer contained a barrel of formic acid, a corrosive substance that has acute toxicity when inhaled, and that this trailer overturned and caught fire. Appellees, all first responders, testified that they smelled an odor that was different from those they had previously experienced when responding to other fiery crash scenes and that the smell almost immediately rendered them unable to breathe and caused their eyes, noses, and mouths to burn. They all sought emergency medical treatment after leaving the scene. Dr. Manaker, a pulmonologist and critical-care physician, physically examined appellees, performed medical tests on them, and reviewed the other evidence in the case, including appellees' medical histories and any preexisting conditions. He testified within a reasonable degree of medical certainty that appellees' permanent injuries were caused by their exposure to the formic acid. Although he had not seen any scientific studies linking their injuries to formic acid or treated any other patients exposed to this specific acid, he described his forty years of experience in treating first responders and other patients with inhalation injuries caused by similar toxic acids. Dr. Manaker reviewed the material safety data sheets (MSDS) for formic acid and opined that all of the medical conditions

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suffered by appellees—RADS, exacerbation of COPD, asthma, GERD, rhinosinusitis, and tonsil stones—were caused or worsened by inhaling and/or swallowing particles of the formic acid that had vaporized. He further testified that the stress of the incident exacerbated Trooper McMillion's coronary artery disease. Viewing the evidence in the light most favorable to appellees, we hold that substantial evidence supports the jury's finding of proximate causation in this case.

B. Preemption

Appellants next argue that the circuit court erred in refusing to direct a verdict in their favor on the basis that appellees' claims were preempted by federal law. Appellants contend that appellees' state common-law tort claims were preempted by the HMTA because they seek to impose additional handling, placarding, and transportation-related requirements for the hazardous materials that appellants transport. Specifically, appellants point to appellees' arguments about permissive placarding and appellants' failure to notify first responders about the presence of hazardous materials.

The doctrine of federal preemption is based on the United States Constitution's Supremacy Clause. United Food & Com. Workers Int'l Union v. Wal-Mart Stores, Inc., 2016 Ark. 397, 504 S.W.3d 573. Preemption can occur in three different ways: (1) express preemption, where Congress defines explicitly the extent to which its enactments preempt state law; (2) field preemption, where Congress's regulation of a field is so pervasive or the federal interest is so dominant that an intent to occupy the entire field can be inferred; and

(3) conflict preemption, where state law stands as an obstacle to the accomplishment of the full purposes and objectives of a federal statute. GSS, LLC v. CenterPoint Energy Gas

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Transmission Co., 2014 Ark. 144, 432 S.W.3d 583. The overriding principle guiding our review in any preemption analysis is whether Congress intended to preempt state law, and the burden is on the moving party to prove preemption. Id. Because this is a legal issue, the standard of review is de novo. United Food & Co. Workers Int'l Union, supra. The purpose of the HMTA, codified at 49 U.S.C. § 1501 et seq., is to protect against the risks to life, property, and the environment that are inherent in the transportation of hazardous materials in intrastate, interstate, and foreign commerce. 49 U.S.C. § 1501. As appellants assert, § 5125(b)(1) of the HMTA contains an express preemption provision that prohibits states from imposing requirements that are not "substantively the same" as a provision of the HMTA or a regulation prescribed thereunder regarding the following subjects:

(A) the designation, description, and classification of hazardous material.

(B) the packing, repacking, handling, labeling, marking, and placarding of hazardous material.

(C) the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents.

(D) the written notification, recording, and reporting of the unintentional release in transportation of hazardous material and other written hazardous materials transportation incident reporting involving State or local emergency responders in the initial response to the incident.

(E) the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.

When a federal statute contains an express preemption clause, our focus is "on the plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive

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intent." Anderson v. BNSF Ry. Co., 375 Ark. 466, 469, 291 S.W.3d 586, 589 (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)).

Appellants first assert that federal law did not require Old Dominion to placard its load of formic acid but that appellees sought to impose more stringent placarding requirements by arguing at trial about permissive placarding. Appellants claim that placarding is one of the subject areas set forth in § 5125(b)(1)(B) and that requiring additional placarding is clearly not "substantively the same" as no placarding. Appellees did not seek to impose placarding requirements in excess of federal law, however. The evidence was undisputed that Old Dominion was not required to placard its load, and appellees' own expert agreed on this issue. Further, the jury instructions included the federal statute stating that placarding is permissive when the hazardous material weighs less than 1001 pounds, which it did here. Appellants' argument is therefore without merit. Appellants also contend that the circuit court imposed a duty of notification in excess of what the HMTA requires and that this was expressly preempted by § 5125(b)(1)(D). According to appellants, 49 U.S.C. § 5110(c) states that they were required to notify others of hazardous materials only "upon request," but appellees also claimed that appellants were negligent for not voluntarily providing the information to the first responders in this case. Appellants argue that "upon request" is not substantively the same as voluntarily disclosing that the load contained hazardous materials.

Section 5110(c) states that when an incident involving the transportation of hazardous materials occurs, "the person transporting the material, immediately upon request on appropriate emergency response authorities, shall disclose to the authorities information

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about the material." 49 U.S.C. § 5110(c). The jury was instructed on § 5110(c), as well as

49 C.F.R. § 177.817, which provides that each driver and carrier shall ensure that the shipping papers are readily available to, and recognizable by, authorities in the event of an accident. Appellees presented the testimony of two different law enforcement witnesses, Trooper Ponder and Deputy Goff, who responded to the accident. Both of these witnesses stated that they asked Foster whether hazardous materials were present and that Foster responded no. It is also undisputed that it was not until hours later--after appellees suffered exposure injuries--that appellants provided the emergency response authorities with the shipping papers containing information about the presence of the formic acid. Appellees' claim that appellants were negligent in failing to provide this information is substantively the same as the HMTA's requirements. See Tipton v. CSX Transp., Inc., Nos. 3:15-CV-311- TAV-CCS, -337-TAV-CCS, -497-TAV-CCS & -346-TAV-CCS, 2016 WL 11501426 (E.D. Tenn. July 7, 2016) (holding that imposing a duty on CSX to immediately identify the toxic chemical involved in the derailment and report that identity to emergency responders was substantively similar to the HMTA's requirements and was not preempted). Thus, the circuit court did not impose a duty on appellants in excess of federal law, and we hold that the circuit court did not err in denying appellants' motion for directed motion on this issue.

C. Professional Rescuer's Doctrine

In their fourth point on appeal, appellants contend that the circuit court erred when it denied appellants' motion for directed verdict based on the professional-rescuer's doctrine. The "fireman's rule," which is also known as the "professional-rescuers doctrine," generally

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provides that a professional firefighter may not recover damages from a private party for injuries that the firefighter sustained during the course of putting out a fire even though the private party's negligence may have caused the fire and injury. E.g., Waggoner v. Troutman Oil Co., Inc., 320 Ark. 56, 894 S.W.2d 913 (1995). We adopted this rule on the basis of public-policy considerations, stating that "the party or parties who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter was employed to confront." Id. at 60, 894 S.W.2d at 915. In Nowicki v. Pigue, we extended the professional-rescuer's doctrine to a roadside-assistance worker. 2013 Ark. 499, 430 S.W.3d

765. We held that, in considering whether this doctrine applies, we must evaluate the facts bearing on whether the worker was paid to assume the risk in question. Id. Appellees argue that the professional-rescuer's doctrine did not apply to them because they were not paid to assume the risk of exposure to hazardous materials and did not have a duty to accept that risk as part of their employment. We agree. With regard to the tow crew who responded to the wreck on behalf of White Motor Company, Bengi Bokker testified that he never would have taken his crew to the scene had he been aware that hazardous materials were present. He explained that there are other companies, such as Chemtech, that are specifically paid and trained to clean up hazardous materials and have special equipment, such as suits, gloves, and masks, and that one of these companies would have responded instead.

Trooper McMillion testified that, when responding to accidents, he was trained by the Arkansas State Police to look for a hazardous-materials placard on a trailer and to ask the driver whether they were hauling any hazardous material. He stated that he was not

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qualified to clean up hazardous materials and that had he known that the load contained formic acid, he would have looked it up in his emergency response guide, learned that he needed to evacuate the area, and set up a perimeter around the crash scene. He also testified that he would have notified an emergency manager so that an appropriate company could be called to clean up the toxic substance. While Corporal Allen did not testify about how he was trained to handle hazardous materials, Deputy Goff, who also worked for the St. Francis County Sheriff's Office, stated that if he knew that the accident involved hazardous material, he would retreat and call the fire department to avoid any exposure. It is clear from appellees' testimony that they were not trained, equipped, or paid to assume the risk of exposure to hazardous materials. Furthermore, we agree with appellees that, even if they had a duty to assume the risk of exposure as part of their employment, appellants' failure to disclose the presence of the hazardous material in this case prevents the application of the professional-rescuer's doctrine. See, e.g., Clark v. Corby, 249 N.W.2d 567 (Wis. 1977) (stating that the public-policy considerations behind the professional-rescuer's doctrine do not apply to the added risk of encountering hidden perils, known to the private party and not known to the professional rescuer, when there was an opportunity for the private party to warn the rescuer); Bartels v. Cont'l Oil Co., 384 S.W.2d 667 (Mo. 1964). Accordingly, we affirm the circuit court's denial of appellants' motion for directed verdict based on the professional-rescuer's doctrine.

D. Jury Instructions

Appellants next argue that the circuit court erred by rejecting their proffered jury instructions on toxic-exposure causation and the professional-rescuer's doctrine. A party is

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entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support giving the instruction. Boellner v. Clinical Study Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745. We will not reverse the circuit court's refusal to give a proffered instruction in the absence of an abuse of discretion. Id.

1. Toxic-exposure causation Appellants proffered the following jury instruction on causation:

Each Plaintiff must prove by a preponderance of the evidence: (1) that exposure to a certain minimum amount of formic acid for a certain period of time can cause their particular claimed injuries in the general population and (2) that his actual amount of exposure to formic acid in this case was at least equal to that minimum level and length of time.

Appellants contend that, if not resolved as a matter of law, the issue of toxic-exposure causation should have been presented to the jury through this proffered instruction to determine whether proximate-causation requirements had been met. However, as discussed above under appellants' first point on appeal, a heightened standard of causation was not required in this case. Thus, appellants' proffered instruction was not a correct statement of law, and the circuit court did not abuse its discretion in refusing to give it.

2. Professional-rescuer's doctrine Appellants also proffered a jury instruction on the professional-rescuer's doctrine:

If you find that any one of the Plaintiffs was a first responder paid to respond to accidents such as the one at issue in this case, then you must find for the Defendants on the claims made by that particular Plaintiff.

Appellants further proffered related interrogatories asking the jury to answer whether each appellee was a professional first responder at the time he claimed to have been exposed to formic acid, as well as an instruction stating that if the jury answered each yes to each of

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these interrogatories, the jury should inform the bailiff that its deliberations were complete. The circuit court also denied these proffers.

The circuit court did not abuse its discretion in rejecting appellants' proffered instruction and interrogatories on the professional-rescuer's doctrine. This doctrine did not apply to appellees for the reasons explained above. Accordingly, there was no basis in the evidence to give the instruction and interrogatories. We affirm on this point. E. Admissibility of Expert Testimony

In their sixth point on appeal, appellants contend that the circuit court abused its discretion when it refused to exclude or limit the testimony of appellees' experts, Robert Richard, David Dorrity, and Dr. Scott Manaker. Arkansas Rule of Evidence 702, which governs the admissibility of expert testimony, states that "[if] scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." We review the admission of expert testimony under an abuse-of-discretion standard. Green, supra.

1. Robert Richard Robert Richard testified on behalf of appellees as a hazardous-materials transportation-safety expert with more than thirty years of experience working for, and consulting with, transportation companies and working for the United States Department of Transportation. He described the HMTA requirements applicable to the transportation of hazardous materials such as formic acid as well as a carrier's and its employees' responsibilities in the event of a crash. Richard opined that Old Dominion's employees

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were not adequately trained as to those responsibilities and that they therefore failed to timely communicate with the emergency responders about the presence of the formic acid as required by the HMTA.

Before trial, appellants filed a motion in limine seeking to exclude Richard's testimony, arguing that his opinions about the applicable law and the legal duties owed by appellants invaded the province of both the circuit court and the jury. Alternatively, appellants claimed that the circuit court should limit Richards's testimony by precluding him from using the words "negligent," "careless," and "reckless"; opining on the credibility or weight to be afforded to the evidence; interpreting the law, testifying about the legal duties owed, or opining as to whether appellants complied with the law; opining on the overall safety culture at Old Dominion; offering opinions about whether and when anyone asked appellants for information about the cargo and characterizing or editorializing witness testimony; offering opinions regarding appellees' injuries or Foster's mental state after the accident; offering opinions on any actions or inactions after the date of the accident or any

"other acts" evidence unrelated to the accident; and testifying that Foster did not review the shipping papers upon accepting the load. The circuit court denied appellants' motion to exclude Richards's testimony in its entirety but ruled that Richards could not instruct the jury on whether a party was or was not negligent, opine directly on the credibility of any witness, or opine on any area outside of his expertise in the field of hazardous-materials safety. The court also ruled that no unqualified lay witness would be permitted to give expert medical testimony, that no testimony would be allowed regarding any remedial

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measures taken by appellants after the accident, and that no testimony would be allowed about Old Dominion's prior safety record.

Appellants contend that the circuit court erred by not excluding Richards's testimony. They claim that Richards "served as essentially both judge and jury, by first instructing the jury on the law and then telling the jury that they should conclude Appellants violated his definition of the law." We disagree. We have previously held that an expert witness can testify about the standards of care within an industry and whether a party complied with those standards. See, e.g., NationsBank, N.A. v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001) (affirming the admission of expert testimony about compliance with the National Fire Prevention Standards); Rhine v. Haley, 238 Ark. 72, 378 S.W.2d 655 (1964) (affirming admission of attorney's testimony about attorney standards of conduct in the community). This is precisely what Richards did in this case. He described the HMTA statutes and regulations that govern a carrier and its employees in the event of an accident and offered his opinion on whether appellants' actions complied with those laws. Richards did not instruct the jury on the applicable law. While certain HMTA provisions were included in the jury instructions, the jury was instructed that a violation of these provisions was not necessarily negligence and was instead only evidence of negligence to be considered along with all the other facts and circumstances in the case.³Richards was also not allowed to tell the jury which conclusion to reach because the circuit court had cautioned him not

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to use words such as "negligence," "careless," and "reckless." Appellants have therefore failed to demonstrate that the circuit court abused its discretion in admitting Richards's testimony, and we affirm this ruling.

2. David Dorrity Appellants also challenge the admission of David Dorrity's testimony. Dorrity testified as a trucking-safety expert with more than forty years of experience working for trucking companies, performing accident investigation, conducting safety training, and consulting on transportation safety and compliance. He discussed the importance of training employees on an action plan to be followed in the event of an accident involving hazardous materials and opined that Old Dominion had deviated from industry standards in this regard. Appellants filed a motion in limine seeking to exclude or limit Dorrity's testimony on similar bases as those in their motion to exclude Richards's testimony. The circuit court denied the motion, although it ruled that no witness would be permitted to testify as to whether or not a party was negligent. Appellants contend that the circuit court erred by not excluding Dorrity's testimony because it was based on common knowledge that the jury could understand without his testimony and not on any expertise. The circuit court did not abuse its discretion by allowing Dorrity's testimony. Dorrity testified about his many years of experience related to trucking safety. He described the policies and procedures that a carrier should have in place and the training that employees should receive regarding how to respond if an incident involving hazardous materials occurs. This is not the type of information that is within the jury's common knowledge, and it was therefore proper under Ark. R. Evid. 702 because it assisted the jury in understanding the

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evidence and determining whether appellants were negligent. Accordingly, we affirm the admission of this testimony.

3. Dr. Scott Manaker Finally, appellants contend that the circuit court erred by allowing Dr. Scott Manaker to testify that appellees' injuries were caused by their exposure to formic acid. Appellants moved to exclude Dr. Manaker's testimony on the basis of the same argument discussed earlier in their first point on appeal--a heightened standard of causation is required in a toxic-tort case. According to appellants, appellees' claims necessitated expert testimony regarding their level of exposure to the toxic substance. Appellants argue that Dr. Manaker's causation opinion was unreliable because he could not characterize the necessary amount of exposure to formic acid that would have caused the injuries suffered by appellees and what level of exposure that appellees likely experienced here.

In determining whether to admit expert testimony under Ark. R. Evid. 702, the circuit court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is valid and whether the reasoning and methodology used by the expert has been properly applied to the facts in the case. Green, supra. The objective of this gatekeeping requirement is to ensure the reliability and relevancy of the expert testimony. Id. (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)). The circuit court must make certain that an expert, whether basing his or her testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Id.

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As we explained above, appellants are incorrect that a heightened standard of causation was required in this case, and it was therefore not necessary for appellees to present expert testimony to establish the necessary amount of exposure to formic acid that would have caused their injuries or the level of the formic acid to which they were exposed. Instead, the testimony of their medical expert, Dr. Manaker, along with the other evidence presented regarding the circumstances of appellees' exposure, was sufficient to create a question of fact on causation. Dr. Manaker based his causation opinion on his research into the harmful effects of formic acid and his years of experience treating first responders who suffered inhalation injuries after exposure to similar acids, such as hydrochloric and nitric acids. He personally examined each appellee, conducted lung-function tests, and reviewed their medical records. He also reviewed the details surrounding each appellee's exposure to the formic acid, such as when they arrived on the scene, when they noticed the noxious odor, and what physical symptoms they experienced. He described the mechanism by which acid fumes become liquid acid once the fumes are inhaled through a person's nose and mouth, causing chemical burns to their airways. He stated that some of these acid particles are also swallowed and enter the esophagus. According to Dr. Manaker, the injuries that appellees suffered due to their formic-acid exposure cannot be treated and are permanent. Appellants also argue that Dr. Manaker's testimony was unreliable because he did not properly use differential etiology when reaching his conclusion that appellees' injuries were due to the formic-acid exposure. Specifically, appellants claim that he made no effort to rule out all other potential causes of appellee's injuries. This is not accurate, however. Dr. Manaker testified that he reviewed appellees' medical records, and he explained how he

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considered each appellee's medical history and preexisting conditions when forming his opinions. This included appellees' ages, any history of tobacco use, and prior health issues such as asthma. Also, despite appellants' argument to the contrary, Dr. Manaker did not engage in post hoc, ergo propter hoc reasoning, because he did not rely solely on the temporal connection between the exposure and appellees' injuries in reaching his opinion on causation. See Schmoll v. Hartford Cas. Ins. Co., 104 Ark. App. 215, 290 S.W.3d 41 (2008) (stating that the logical fallacy known as post hoc, ergo propter hoc, which means "after this and therefore because of this," confuses sequence with consequence and assumes a false connection between causation and temporal sequence). Accordingly, the circuit court did not abuse its discretion by determining that Dr. Manaker's expert testimony was reliable and admissible, and we affirm this ruling as well.

F. Exclusion of Evidence Related to Trooper Ponder

Appellants next contend that the circuit court abused its discretion by excluding relevant evidence related to Trooper Ponder, who was employed by the Arkansas State Police at the time of the accident and was dispatched to the scene. Trooper Ponder resigned in May 2018 after an internal investigation for alleged misconduct, and he took a different state job. The investigation included allegations that (1) Trooper Ponder had mishandled drugs used to train his K9, (2) lied to his supervisor on the morning of the accident about the reason that he needed to miss an upcoming work event, (3) persuaded a judge to reduce a friend's bond and to then release the friend on his own recognizance, and (4) lied about the circumstances of an incident wherein a friend called 911 from Ponder's house. The investigation did not result in any official conclusions regarding the truth of the allegations

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or in any criminal charges against Trooper Ponder. Appellants obtained the 183-page investigative file before trial, and appellees filed a motion in limine seeking to prevent appellants from cross-examining Ponder about the allegations or admitting the contents of the file, which included reports and interview transcripts. Appellees argued that the allegations were unrelated to the accident and that any relevance was outweighed by the danger of confusion of the issues and considerations of undue delay and waste of time. Appellants responded that, because Trooper Ponder's testimony that Foster had denied hauling hazardous materials when asked by Ponder was disputed by both Foster and another witness, the allegations against Ponder were relevant to his credibility. The circuit court ruled that the investigative file would be excluded and that appellants could not cross- examine Ponder about the allegations.

Appellants then proffered into evidence the investigative file and the questions they intended to ask Trooper Ponder. In his interview in the investigative file and in his proffered testimony, Ponder could not explain why the drugs that he had possessed to train his K9 weighed less than they should have, but he denied that he consumed them, sold them, or otherwise disposed of them inappropriately. He also denied the second allegation that he had lied about his reason for not attending the work event. He had requested that he be excused from the out-of-town training because he needed to be near his mother, who was in bad health. He stated in his interview and in his proffered testimony that this was true and that he left town only for a few hours one evening when he went to Memphis with friends. As to the third allegation, Trooper Ponder admitted during the investigation that he had encouraged the judge to lower the bail amount for his friend and that his conduct

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was inappropriate. Finally, with regard to the fourth allegation, Trooper Ponder explained during the investigation that his friend had been intoxicated, that Ponder had told him to leave, and that Ponder was unaware that his friend called 911 once outside Ponder's home. Trooper Ponder agreed that he had left before the police arrived and that he had lied when he later told his supervisor that his friend was there because he got into an argument with his wife and wanted to stay at Ponder's house. The investigation revealed that Trooper Ponder and his friend were romantically involved, and Ponder stated in his interview that he had lied about the situation because "[i]t, in my eyes it looked bad, so I, that's what I said . . . I didn't tell the truth." However, when appellants asked Ponder about this quote in their proffer, he stated that he did not remember saying it. He also did not recall admitting during the investigation that he had violated a police policy on truthfulness. Appellants then asked Ponder directly whether he told lies when the truth made him look bad, and Ponder stated that he did not.

Appellants argue that the circuit court erred by excluding evidence of the allegations against Trooper Ponder because it was admissible under Ark. R. Evid. 404(b) as probative of his state of mind on the day of the accident and his "common scheme for lying to get out of trouble." In addition, appellants contend that the evidence was admissible under Ark. R. Evid. 608 because it was relevant to Ponder's character for truthfulness. A circuit court has broad discretion in deciding evidentiary issues, and we will not reverse that decision absent an abuse of discretion. Nichols v. Swindoll, 2026 Ark. 42, 729 S.W.3d 672. Further, we will not reverse unless the appellant demonstrates that he or she was prejudiced by the ruling. Tucker v. State, 2023 Ark. 69, 664 S.W.3d 428.

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We first address appellants' Rule 404(b) argument. Evidence of a person's character is not admissible for the purpose of proving that he acted in conformity therewith. Ark. R. Evid. 404(a). Character evidence may be admissible for other purposes, however, such as

"proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ark. R. Evid. 404(b). Even relevant evidence can be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Ark. R. Evid. 403. We disagree that the investigative file and proffered testimony were admissible under Rule 404(b) to show Trooper Ponder's state of mind on the day of the accident or

"common scheme" of lying. While Ponder's request to be excused from an upcoming work event occurred on the morning of the accident, it is otherwise entirely unrelated to the incident and his testimony about what occurred at the scene, and the remainder of the allegations in the file also have no connection to the accident or his state of mind on that day. Trooper Ponder also denied both in his interview and during his proffered testimony that he had lied regarding the reason for his requested absence. The only false statement that Ponder admitted to in his interview was his description of what occurred the night that his friend called 911. However, in his proffered testimony, he did not recall admitting to any untruthfulness during the investigation. Accordingly, appellants have failed to demonstrate that Ponder had a "common scheme" of lying. Furthermore, any slight probative value of this evidence was outweighed by the danger of confusion of the issues and considerations of undue delay, as its admission would have opened the door to the introduction of even

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more evidence by appellees to rebut the allegations against Ponder. Appellants also cannot demonstrate prejudice from the exclusion of this evidence, as Trooper Ponder was not the only witness who testified regarding Foster's denial that he was hauling hazardous materials. Deputy Goff unequivocally stated that Foster had denied that hazardous materials were present when he asked him as well.

We next turn to appellants' argument that Rule 608 authorized the admission of this evidence. Rule 608(b) provides that

[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross- examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. We have adopted a three-part test for admissibility under this rule: (1) the question must be asked in good faith; (2) the probative value must outweigh its prejudicial effect; and (3) the prior conduct must relate to the witness's truthfulness. Maiden v. State, 2014 Ark. 294, 438 S.W.3d 263.

Because Rule 608(b) does not allow extrinsic evidence of specific instances of conduct, the investigative file itself was not admissible under this rule. We further hold that appellants' proffered cross-examination of Trooper Ponder failed to satisfy the three-part test set out above. While appellants may have had a good-faith basis for questioning Ponder about the allegations, they did not demonstrate that the alleged prior conduct related to his truthfulness because he did not recall making any untruthful statements during his proffered cross-examination. The probative value of this evidence was minimal for the same reason.

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In addition, as noted above, there was evidence other than Trooper Ponder's testimony to establish that Foster had denied that he was hauling hazardous materials. Appellants rely heavily on Hill v. State, 54 Ark. App. 380, 927 S.W.2d 820 (1996), in which the court of appeals reversed the circuit court's exclusion of evidence that an undercover police officer had filed a false police report and made false statements. That case is distinguishable, however. The court in Hill held that it was "without question" that the prior instances of misconduct were related to the witness's veracity, whereas in this case the bulk of the allegations had nothing to do with Ponder's character for truthfulness, and he did not admit making any untruthful statements in his proffered testimony. Id. at 382-83, 927 S.W.2d at

822. Further, the officer in Hill was the only witness who testified in support of the drug sale, while Ponder's testimony was cumulative to other evidence. Thus, the circuit court did not abuse its discretion by excluding evidence of the allegations against Trooper Ponder. G. Motion for a New Jury Pool

In their eighth point on appeal, appellants argue that the circuit court abused its discretion when it refused to select a new jury pool. Appellants raised this issue after discovering that Deputy Goff, a witness for appellees, had previously served as a bailiff with this jury panel in prior trials.⁴The circuit court agreed that Deputy Goff would not be allowed to serve as a bailiff in this trial but denied appellants' motion to empanel a new jury

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pool. While appellants have not alleged that Deputy Goff acted inappropriately, they claim that his prior interactions with the jury panel in his official capacity induced the jury to trust his testimony more than other witnesses' testimony and that the circuit court also implicitly vouched for Deputy Goff's credibility by permitting him to serve as a bailiff in the past. Persons comprising the venire are presumed to be unbiased and qualified to serve, and the burden is on the party challenging a jury's qualifications to prove actual bias. Berry

v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 944 S.W.2d 838 (1997). The issue of a juror's qualifications lies within the sound discretion of the circuit court, and we will not reverse such a decision absent an abuse of discretion. Id.

During voir dire, appellants questioned the potential jurors about whether they remembered interacting with Deputy Goff while in the jury pool or while serving on a jury. Four jurors who served on the venire in this trial had previous interactions with Deputy Goff, but none were significant. Appellants' counsel also asked the panel, "Is there anything about your experience with Mr. Goff that would lead you to believe he is more trustworthy than the average person such as Mr. Foster, a truck driver?" The jurors answered no, and appellants did not ask to strike any of these four jurors for cause. Appellants cite cases in which the Supreme Court has found reversible error when the bailiff both testified as a witness and served as the bailiff in the same trial. See Turner v. State of Louisiana, 379 U.S. 466 (1965); Gonzales v. Beto, 405 U.S. 1052 (1972). That was not the situation in this case, however. Furthermore, this is a civil matter rather than a criminal matter. Because appellants have failed to demonstrate that any of the jurors were improperly influenced by previous

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interactions with Deputy Goff, the circuit court did not err by denying the request for a new jury pool.

H. Other Evidentiary Issues

In their next point on appeal, appellants challenge two separate evidentiary rulings by the circuit court. First, appellants claim that the circuit court erred by excluding appellees' medical bills. Second, appellants argue that the circuit court erred by admitting hearsay testimony from a nonparty witness.

1. Medical bills Appellees filed a motion in limine to prevent appellants from introducing evidence of their medical bills at trial. Appellees claimed that the bills were not relevant because they were not requesting damages for their medical expenses. The circuit court initially granted appellees' motion at a pretrial hearing but then reconsidered and amended its ruling during the trial. The court found that appellees' medical bills would not be admissible unless they testified about their medical treatment. The circuit court stated that, in that event, it would entertain a motion by appellants to admit that appellee's medical bills. Appellants successfully moved to admit the bills for Hunter Bokker, Pettus, and Billingsley but now argue on appeal that the circuit court abused its discretion by excluding the bills for the remaining appellees. Appellants contend that the medical bills were relevant to appellees' claim for pain-and- suffering damages.

We hold that this issue is not preserved for appellate review. To preserve an issue concerning the erroneous exclusion of evidence at trial, a party must generally make a proffer of the evidence sought to be admitted. Sharp v. State, 2018 Ark. 274, 555 S.W.3d

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878. "A proffer is unnecessary, however, when the substance of the evidence is apparent from the context within which it was offered." Id. at 5, 555 S.W.3d at 881. Appellants failed to proffer at trial the medical bills for McMillion, Jones, and Bengi Bokker. Because the substance of this evidence is also not apparent from the context, the argument is not preserved, and we decline to address the merits.

2. Thereasa May's testimony Appellants next challenge testimony from Thereasa May, an employee of White Motor Company, who stated that she called Old Dominion seeking the bills of lading. When she was asked what Old Dominion said, appellants objected to her testimony on the basis of hearsay. The circuit court overruled the objection. May then proceeded to testify that she felt as if the person who answered the phone did not think she knew what she was talking about because May is a woman. May stated that Old Dominion "blew [her] off" and did not give her the bills of lading. She testified that she asked a male coworker to call the company back and that he was able to obtain the documents.

Appellants argue that May's testimony was inadmissible hearsay. We disagree. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c). May did not recount any out-of-court statements; she testified only about her actions, her inability to obtain the documents, and the timing of their eventual receipt. Because no statement was offered for the truth of the matter asserted, the testimony was not hearsay. Furthermore, appellants cannot demonstrate prejudice from the admission of this evidence. May's testimony was brief, and it was cumulative of other evidence showing attempts to

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obtain the hazardous-materials information. See, e.g., Dollar Gen. Corp. v. Elder, 2020 Ark. 208, 600 S.W.3d 597 (stating that prejudice cannot be shown when the challenged evidence is cumulative of other properly admitted evidence). The circuit court therefore did not abuse its discretion in admitting May's testimony.

I. Use of Shadow Jury Appellants contend in their tenth point on appeal that the circuit court abused its discretion by failing to grant a mistrial or give a curative instruction about appellees' use of a "shadow jury." A "shadow jury" is a group of mock jurors paid to observe the trial and report their reactions to counsel for one of the parties. See Black's Law Dictionary (12th ed. 2024). On the sixth day of trial, the circuit court observed papers being passed among spectators in the gallery, which the court found distracting. The court recessed the proceedings and took up the matter in chambers, learning that the papers were lunch menus being circulated among shadow jurors employed by appellees' counsel. The circuit court reprimanded appellees' counsel for failing to inform the court of these individuals' presence. Appellants moved for a mistrial, arguing that they had not had the opportunity to observe how the shadow jurors reacted during the trial or whether they had any contact with the jury. Appellants further claimed that the presence of the shadow jurors could be interpreted by the jury as a show of support from the community for the opposing party. The court denied appellants' motion, stating that it had instructed the jurors to report any attempted contact with them during recesses in the trial and that no contact had been reported. Appellants then requested that the jury be instructed that the interruption was unrelated to the testimony being presented. The circuit court gave that instruction, advising

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jurors that the recess involved "external issues" and had nothing to do with the testimony or evidence. Trial then resumed at the point where questioning had been interrupted. A mistrial is an extreme and drastic remedy that is appropriate only when there is an error so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the proceedings has been manifestly affected. Smith v. State, 2024 Ark. 1, 680 S.W.3d 711. The decision to deny a mistrial is within the sound discretion of the circuit court, and its ruling will not be reversed in the absence of an abuse of discretion or manifest prejudice to the movant. Id. An admonition to the jury usually cures any potential prejudice. Williams v. State, 2011 Ark. 432, 385 S.W.3d 157. The failure to request a curative instruction may negate the mistrial motion. Id.

There is no merit to appellants' claim that the circuit court erred by failing to grant their motion for mistrial or instruct the jury about the shadow jury. Appellants requested an admonition and received precisely that relief. The circuit court instructed the jury that the interruption concerned external matters unrelated to the evidence, and appellants neither requested a different instruction nor demonstrated that the admonition was inadequate. Appellants have also failed to identify any evidence that the presence of the shadow jury influenced deliberations or otherwise affected the fairness of the trial. Thus, the circuit court did not abuse its discretion, and we affirm on this point.

J. Handling of Punitive-Damages Claim

Appellants next argue that the circuit court committed two separate errors in the way it handled appellees' claim for punitive damages. First, appellants contend that the circuit court abused its discretion by refusing to bifurcate the punitive-damages claim in its entirety.

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Second, appellants claim that the circuit court "compounded the error by allowing Appellees to utilize the improper Reptile Theory to manipulate the jury into awarding a large verdict based in part on their ability to raise punitive damages arguments about the need to punish Appellants."

1. Bifurcation of liability for punitive damages Before trial, appellants filed a motion requesting complete bifurcation of the punitive-damages issue. The circuit court granted the motion in part and denied it in part. The court ruled that in phase one of the trial, the jury would be asked to determine liability and the amount of compensatory damages; if the jury found appellants liable, it would also decide whether punitive damages should be awarded. In phase two of the trial, if necessary, evidence would be presented regarding appellants' financial condition, and the jury would determine the amount of punitive damages to be awarded. The circuit court found that "the evidence of compensatory and punitive liability is so inextricably intertwined that it would not be possible, convenient, nor in the interest of judicial economy to attempt to separate the presentation of compensatory and punitive liability to separate trials."

Arkansas Rule of Civil Procedure 42(b)(2) provides that

all actions tried before a jury in which punitive damages are sought shall, on the motion of any party and if warranted by the evidence, be conducted in a bifurcated trial before the same jury. The jury shall first determine the liability of the defendant or defendants for compensatory damages, the amount of compensatory damages to be awarded, and, at the discretion of the circuit court, the liability of the defendant or defendants for punitive damages. Should it be necessary, the jury will then determine in a separate proceeding, the liability of the defendant or defendants for punitive damages, if that issue was not decided previously, and the amount of punitive damages to be awarded. Evidence of a defendant's financial condition shall not be admitted in the first proceeding unless relevant to an issue other than the amount of punitive damages.

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A circuit court's decision regarding bifurcation will not be reversed absent an abuse of discretion. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). We have held that the purpose of Rule 42(b) is to further convenience, avoid delay and prejudice, and serve the needs of justice and that the primary concern is efficient judicial administration, as long as no party suffers prejudice. Id.

While appellants recognize that Rule 42(b) gives the circuit court discretion to decline to bifurcate the question of liability for punitive damage, they contend that Ark. Code Ann. § 16-55-211 mandates complete bifurcation. However, as appellants concede, the 2015 amendment to Rule 42(b) superseded this statute. Ark. R. Civ. P. 42, rep. note, 2015 Amendment. Rule 42(b)(2) expressly permits the procedure used here. The circuit court found it would not be in the interest of judicial economy to separate the presentation of compensatory and punitive liability, which is consistent with the rule's purpose. Alter, supra. Appellants also acknowledge that the same evidence would support both compensatory and punitive liability and that no additional factual proof would have been introduced in the second phase of the trial. Although appellants argue that appellees' references to deterrence unfairly emphasized punishment during the first phase, we disagree that they have demonstrated sufficient prejudice given that the jury ultimately rejected punitive liability. We therefore hold that the circuit court did not abuse its discretion in its ruling on bifurcation.

2. Use of the Reptile Theory Appellants also argue that the circuit court erred by denying their motion in limine seeking to prohibit appellees from employing "Reptile Theory" trial tactics. The Reptile

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Theory, as it relates to lawsuits, was discussed by David Ball and Don Keenan in their book, Reptile: The 2009 Manual of the Plaintiff's Revolution. See Louis J. Sirico, Jr., The Trial Lawyer and the Reptilian Brain, 65 Clev. St. L. Rev. 411, 412-17 (2017). According to this theory, the human brain consists of three parts: the reptilian brain, the limbic system, and the neocortex. Id. at 414. The reptilian portion of the brain controls "the fight or flight response" and other instinctive behavior. Id. Essentially, the authors encourage trial counsel to tap into the "reptilian brain" of the jurors by framing liability arguments in terms of community safety and danger in order to appeal to their instinctive responses rather than purely analytical reasoning. Id. at 417.

In their motion in limine, appellants moved to exclude use of this strategy, arguing that it invited improper Golden Rule arguments and imposed duties beyond those recognized by law.⁵The circuit court granted the motion in part, prohibiting Golden Rule arguments but permitting trial strategies—including reptilian-style arguments—as long as they complied with the Rules of Evidence and Civil Procedure. As with the other evidentiary issues, we review the circuit court's ruling for abuse of discretion. We hold that no abuse of discretion occurred here. The circuit court expressly barred improper Golden Rule arguments, and when appellants objected to such arguments at trial, those objections were sustained. To the extent that appellants now contend that particular testimony or arguments violated evidentiary or procedural rules, those claims are not preserved. Although the denial of a motion in limine preserves objections to specifically

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identified evidence, parties must still object when allegedly improper evidence or argument is introduced so that the circuit court has an opportunity to rule. Harlan v. State, 2024 Ark. 69, 686 S.W.3d 810; Schichtl v. Slack, 293 Ark. 281, 737 S.W.2d 628 (1987). Appellants failed to make contemporaneous objections to the challenged conduct, leaving nothing for appellate review. Moreover, the jury was properly instructed on the governing law and is presumed to have followed those instructions. KW-DW Props., LLC v. Ark. State Highway Comm'n, 2019 Ark. 95, 571 S.W.3d 6. Because the circuit court in this case limited improper argument and no preserved error or resulting prejudice has been demonstrated by appellants, the court did not abuse its discretion.

L. Motion for New Trial or Remittitur

Finally, appellants contend that the circuit court abused its discretion by denying their motion for new trial or remittitur. Appellants assert that they are entitled to a new trial pursuant to Ark. R. Civ. P. 59(a)(4)-(5), which provides that a new trial may be granted based on "(4) excessive damages appearing to have been given under the influence of passion or prejudice;" or "(5) error in the assessment of the amount of recovery, whether too large or too small[.]" They also argue that courts have an obligation, beyond the Rules of Civil Procedure, to review substantial awards of compensatory damages to determine whether a jury award is clearly excessive. Appellants urge us to reduce the damages awarded through remittitur as an alternative to ordering a new trial.

We review the circuit court's denial of a motion for new trial for a manifest abuse of discretion. KW-DW Props., supra. When an award of damages is alleged to be excessive, we review the proof and all reasonable inferences most favorable to the appellees and determine

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whether the verdict is so great as to shock our conscience or demonstrate passion or prejudice on the part of the jury. Carr v. Nance, 2010 Ark. 497, 370 S.W.3d 826. There is no definite and satisfactory rule to measure compensation for pain and suffering, and the amount of damages must depend on the circumstances of each case. Advocat, Inc. v. Sauer,

353 Ark. 29, 111 S.W.3d 346 (2003). We have emphasized that "precedents are of scant value in appeals of this kind." Builder's Transp., Inc. v. Wilson, 323 Ark. 327, 328, 914 S.W.2d 742, 743 (1996) (quoting Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453, 457 (1983)). Additionally, compensation for pain and suffering must be left to the sound discretion of the jury, and its conclusion should not be disturbed unless the award is clearly excessive. Id. Remittitur is appropriate only when the compensatory damages awarded are excessive and cannot be sustained by the evidence. Carr, supra. The standard of review in such a case is that appropriate for a new trial motion, that is, whether there is substantial evidence to support the verdict. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d

239.

Appellees presented the following testimony in support of their compensatory- damages claims.

1. Trooper Frank McMillion Trooper Frank McMillion, who is also a volunteer firefighter and an associate pastor at New Hope Missionary Baptist Church, where he has been a member for forty-nine years, was the first appellee to arrive at the scene of the accident and remained there for more than three hours. He noticed an unusual odor about ninety minutes after he arrived and began feeling dizzy, lightheaded, and nauseous. Trooper McMillion stated that later, after the

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towing-crew appellees began clearing the wreckage, the strong chlorine smell grew more intense, he could not breathe, and his nose and throat were burning. He was transported by ambulance to the hospital that evening and returned the next day, reporting a headache and chest pains that began the night of the accident and continued into the following day, unlike anything he had ever previously experienced. He again sought treatment in 2019 for shortness of breath and was examined by Dr. Manaker in 2020. Trooper McMillion testified that while he can still perform his essential job duties, his life has changed drastically, and he continues to experience difficulty breathing and must take medication. He described feeling

"like a fish out of water," especially when exerting himself. He complained that his shortness of breath has limited his preaching at his church and has prevented him from enjoying hobbies, such as visiting local schools to speak to children, hunting and fishing, and spending time with his family, including playing with his grandchildren and visiting his aging parents as he once did.

Trooper McMillion's wife, Sandra, also described the drastic changes in her husband since his exposure to the formic acid. She stated that he used to be a "very strong, vibrant man" who enjoyed helping others, exercising, going out to eat and exploring with his wife, and playing with his grandchildren but that he can no longer do these things or even help her around the house or in the yard. She further testified that before the accident, he visited his grandchildren at least twice a month; now, he sees them only every few months and primarily speaks with them by phone because playing with them is too exhausting for him. She stated that he coughs up mucus after he eats and that his snoring at night is so severe that she has to sleep in a separate bedroom in order to get a decent rest, which is emotionally

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difficult for them both. Sandra testified that she is concerned he may require supplemental oxygen in the future.

Dr. Manaker diagnosed Trooper McMillion with RADS, which can cause coughing, shortness of breath, wheezing, mucus production, and reduced exercise tolerance. He also diagnosed him with worsening rhinosinusitis, which is inflammation in the sinus cavity, and worsening GERD. Finally, Dr. Manaker testified that the exposure caused an acceleration and exacerbation of Trooper McMillion's coronary artery disease.

2. Corporal Allen Jones Corporal Allen Jones, who arrived at the scene after Trooper McMillion, was treated at the emergency room on the day of the accident and had a chest x-ray the next day. He testified that due to his airway injuries from the accident, he experiences shortness of breath, a sensation that his sinuses are "on fire," and a dry, sore throat. He stated that his voice has become so raspy that co-workers do not recognize him when he communicates over the radio. He continues to see a physician every few months. Corporal Jones stated that his law enforcement duties are adversely affected because he has difficulty chasing suspects, he now often makes reports over the phone instead of responding in person to calls, and he no longer initiates as many traffic stops. His shortness of breath and constant exhaustion have also interfered with his intimacy with his wife, which he finds humiliating. Corporal Jones further testified that he feels embarrassed and inadequate because his wife now has to care for and wait on him. He also stated that he has difficulty sleeping due to his respiratory issues and wakes up almost every hour.

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Corporal Jones's wife, Angela, testified that when she met him at the hospital the night of the accident, he was pale around the mouth, his face was very red, and he stated that it felt like he had a blow torch up his nose. About a week later, Angela stated that the skin began sloughing off his nasal passages and that he had a burning, tingling sensation in his throat. She then noticed blood stains on his pillow and realized that his nose was draining blood-stained mucus. Angela explained that this was still happening and that she has to wash the pillowcases every day and buy new pillows frequently. Angela also testified that her husband has constant dry mouth and hoarseness and must continually drink water or otherwise keep his mouth moist and that he becomes short of breath from simple activities such as getting dressed, tying his shoes, or getting the mail. She further testified that although their children are very athletic and enjoy playing sports and being outdoors, he is no longer able to participate with them, so she now does so in his place. She also described the medications and inhalers that he has to take each day to treat his symptoms. Dr. Manaker testified that the formic-acid exposure caused Corporal Jones's GERD, rhinosinusitis, and COPD to worsen, even though he had quit smoking since the accident.

3. Bengi Bokker Bengi Bokker, one of the owners of White Motor Company, the family-owned and operated towing company that responded to the scene, testified that when he was exposed to the formic-acid fumes, he could not breathe and experienced a burning sensation in his nose and throat. He described the sensation as feeling like "someone had a pillow over your face and held it there" until you passed out, or like someone covering your nose and mouth so that you could not breathe. He sought emergency medical treatment that night. Benji

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further testified that since the accident, he coughs, has shortness of breath, and feels like he has an obstruction in his throat every day. Bengi described how his injuries have drastically affected his endurance and his ability to perform his job, requiring him to seek assistance from other employees for tasks he previously handled on his own. He testified that at least once a week, he overexerts himself and experiences chest pains. He stated that his business has been adversely impacted by his physical limitations and that he can no longer work hands-on with his employees to train and teach them. Dr. Manaker diagnosed Bengi with RADS and worsening GERD.

4. Hunter Bokker Hunter Bokker, Bengi's son who was also part of the towing crew, testified that he was also injured by exposure to the formic acid. He went to the emergency room that night with a burning throat and headache. He explained that, as a result of his burned airways, the skin in his nasal passages peels off, and even light contact, such as scratching or rubbing his nose causes pain. Hunter further testified that he experiences shortness of breath, describing it as feeling "like the air is thin, and you can't get enough no matter how hard [you] try to breathe." He stated that this causes tightness in his chest and makes his daily job duties more difficult and time-consuming than before the accident because he must frequently stop to catch his breath. Hunter explained that he is the fourth generation to be employed at White Motor Company and that he is concerned the family business may be at risk if he is unable to continue working in the future due to his limitations. Hunter testified that although he was only twenty-six years old, he worries about his health and his future family, especially because he hopes to raise his children in the family business as his

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father did for him. Dr. Manaker diagnosed Hunter with rhinosinusitis, GERD, and tonsil stones due to the exposure.

5. Zack Billingsley Zack Billingsley, another member of the White Motor Company towing crew, testified that, at the time of his exposure to the formic acid, he could not breathe at all and that his eyes and nose were burning and his face became very flushed. He explained that the formic acid had a very terrible odor, and he described the exposure as feeling like "somebody came up to you with a wet washcloth, stuck it over your nose and mouth, and just took your breath completely away." He was taken by ambulance to the hospital that night, and he later sought additional medical treatment for shortness of breath. He testified that since the accident, he continues to suffer from shortness of breath and burning airways . Billingsley further explained that while he and his seven-year-old son enjoy deer hunting, he can no longer walk long distances, must park near his deer stand, and has to use a rescue inhaler while hunting. He stated that he would not even attempt to duck hunt anymore because it requires walking about a mile, which he knows that he can no longer do. Billingsley testified that he is scared about how much worse his airway injuries will be in the future and about whether he will need supplemental oxygen. Dr. Manaker diagnosed Billingsley with RADS.

6. Carlton Pettus Finally, Carlton Pettus, a firefighter and the fourth member of the towing crew, described his exposure to the formic acid as having an extreme silicone-like odor. He testified that "automatically you couldn't breathe and your eyes are burning and your nose is burning. It's like somebody stuck a sack over your face, and you [c]ouldn't breathe at all."

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He sought emergency medical treatment that night and later saw a pulmonologist. Pettus testified that he continues to suffer from lung damage, shortness of breath, and wheezing and that he experienced nasal problems for several months after his exposure. Pettus further testified that at only twenty-five years old, he is very concerned about his future, including whether he will be able to continue in his childhood dream of working for the fire department or whether his injuries will cut his career short. He described how the accident has affected his daily life, including an instance when he was doing simple household tasks and was unable to carry his one-year-old daughter around the house for more than twenty to thirty minutes due to shortness of breath. He testified that it is very difficult emotionally that he can no longer hold his baby when she is crying or do simple activities as he once could. Dr. Manaker testified that the exposure had caused Pettus's rhinosinusitis and asthma to worsen.

Dr. Manaker stated that the injuries suffered by appellees from their exposure were permanent and that no medical treatment could cure them. He further testified that their conditions would likely worsen as they age. He stated that the tests he performed revealed a concerning deterioration in pulmonary function in several of the appellees just since their last visit with their treating physicians. When asked about the shortness of breath experienced by all of the appellees, Dr. Manaker described it as trying to breathe through a straw or through a pillow that is placed over your face. He testified that appellees' shortness of breath increases when they exert themselves and that "an individual who is struggling to breathe will experience panic because they can't get enough air."

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With regard to appellees' request for compensatory damages, the jury was instructed as follows:

If an interrogatory requires you to assess the damages of the Plaintiffs, you must then fix the amount of money which will reasonably and fairly compensate each one of them for any of the following two elements of damage sustained which you find were proximately caused by the fault of Old Dominion Freight Line, Inc. through its employees:

First: The nature, extent, duration, and permanency of any injury and whether it is temporary or permanent.

Second: Any pain and suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future.

Whether any of these two elements of damage has been proved by the evidence is for you to determine.

In this regard you should consider the full extent of any injury sustained, even though the degree of injury is found by you to have proximately resulted from the aggravation of a condition or disease that already existed and that predisposed a Plaintiff to injury to a greater extent than another person. However, you may not award any specific plaintiff damages for any pain and suffering which that specific plaintiff would have suffered even though the accident had not occurred. AMI Civ. 2201, 2202, 2203, and 2205 (2022). Following deliberations, the jury awarded $25 million to Trooper McMillion, $20 million to Bengi Bokker, $15 million to Corporal Jones, and $5 million each to Hunter Bokker, Billingsley, and Pettus. Appellants argue that the damages awarded by the jury are excessive and shock the conscience. They claim that the officers' and towing crew's injuries here are not nearly as significant as those in other cases where the damages awarded were reduced, and they point to the testimony that appellees have continued to work and engage in other activities, albeit with some limitations. Appellants further contend that the jury "clearly sought to punish"

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them and that a new trial must be granted because the verdicts were based on passion or prejudice rather than the evidence presented.

We disagree and hold that the circuit court did not abuse its discretion by denying appellants' motion for new trial or remittitur. The jury heard evidence about these first responders' acute chemical-exposure symptoms, emergency medical treatment, and continuing respiratory symptoms, in addition to expert testimony that the injuries were permanent or permanently worsened. The jury also heard about how those injuries reverberate through appellees' daily lives, literally with every breath they take. Appellees detailed their new limitations at work, overexertion performing routine household chores, problems sleeping, and crushing restrictions on marital intimacy and family activities affecting generations. The jury was instructed on, and tasked with, translating that lifelong impairment into dollar awards. We have also recognized the jury's unique and difficult role in assessing damages for pain and suffering:

Pain and suffering have no market price. They are not capable of being exactly and accurately determined, and there is no fixed rule or standard whereby damages for them can be measured. Hence, the amount of damages to be awarded for them must be left to the judgment of the jury, subject only to correction by the courts for abuse and passionate exercise. One of the most difficult decisions facing the jury in a personal injury case is the size of the monetary award for pain and suffering, since there is no objective method of evaluating such damages. The question in any given case is not what sum of money would be sufficient to induce a person to undergo voluntarily the pain and suffering for which recovery is sought or what it would cost to hire someone to undergo such suffering, but what, under all the circumstances, should be allowed the plaintiff in addition to the other items of damage to which he or she is entitled, in reasonable consideration of the pain and suffering necessarily endured or to be endured. The amount allowed must be fair and reasonable, free from sentimental or fanciful standards, and based upon the facts disclosed. Advocat, 353 Ark. at 46-47, 111 S.W.3d at 355 (quoting 2 Stein on Personal Injury Damages § 8:8, at 8-19 (3d ed. 1997)).

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The jury in this case clearly credited appellees' testimony and placed a high value on their lifetime of breathing limitations. The dissent callously characterizes appellees' injuries as "modest health concerns," "temporary pain," and "lingering discomfort" simply because they have continued earning a living and engaging in other activities, albeit with some new limitations. That characterization reflects the dissent's own revisionist view of the evidence, not the record before the jury. The record contains substantial evidence of permanent injury and meaningful loss of normal life, and we disagree that the damages awarded in this case are excessive or shock the conscience. The jury's deliberate choice to award differing amounts of damages to each appellee demonstrates that the jury properly utilized its discretion and that its verdicts were based on the individualized evidence presented. We decline to second-guess that discretion or to substitute our judgment for the jurors who sat through the trial and heard the live testimony of each witness. In fact, unlike the dissent, we refuse to believe that we know better.⁶Furthermore, contrary to appellants' argument, nothing in this record compels the conclusion that the verdicts were driven by passion or

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prejudice or to punish appellants. Notably, the jury chose not to award punitive damages for appellants' conduct. While appellants also urge us to compare the verdicts in this case with those in other cases, we have emphasized that such comparisons are not appropriate and that damages must instead be based on the facts in each case. E.g., Advocat, supra; Builder's Transport, supra.⁷Accordingly, we affirm the circuit court's denial of appellants' motion for new trial or remittitur.

Affirmed; court of appeals' opinion vacated.

Special Justice CORY COX joins.

WOOD, HILAND, and BRONNI, JJ., dissent.

WEBB, J., not participating.

CODY HILAND, Justice, dissenting. The law does not permit juries to convert transitory or moderate injuries into generational wealth, but that is what this court just ⁷We note that the dissenting opinion's lengthy discussion of the damages awarded in other cases is therefore irrelevant. Even if we were to engage in such comparisons, the two cases primarily relied upon by appellants, Advocat, supra, and Vaccaro Lumber v. Fesperman,

100 Ark. App. 267, 267 S.W.3d 619 (2007), are distinguishable. There was no evidence of permanent injuries in Vacarro, and although there was considerable evidence of pain and suffering in Advocat, Mrs. Sauer had a life expectancy of two years before she died. The plaintiffs here have a much longer life expectancy, and the testimony showed that they suffered from permanent injuries that will only worsen as they age. Likewise, the dissent's obsession with medical expenses is misplaced. It treats medical bills as a yardstick for human suffering. Arkansas law does not. Medical expenses are but one factor in assessing compensatory damages, and they are often a poor proxy for non- economic harm. They reflect the course of treatment, not necessarily the severity of the injury. A plaintiff may suffer serious, even permanent harm with minimal medical intervention, just as another may incur significant expenses for relatively minor conditions. Simply put, pain, suffering, and loss of enjoyment of life do not come with receipts.

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allowed. The appellees had less than $15,200 in total medical expenses, yet they walked away with $75 million.¹That signals a sea change in our jurisprudence, and it transforms our civil justice system into something far more arbitrary—an institutionalized lottery, dispensing windfalls untethered from actual damages and the rule of law.

One might be forgiven for hearing "$75 million" and assuming the court is deciding how six individuals are to split a winning Powerball^®lottery ticket. Or perhaps that this case must be about a horrific and painful death or life-altering disfigurement caused by utterly reprehensible conduct. But neither is true. Instead, this case centers on this court's refusal to adhere to the rule of law and rein in an unfathomable tort award by a runaway jury on a record that cannot for a moment sustain it—something this court has done for over fifty years.²What resonates far more strongly to me, however, is the potential erosion of public

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confidence in a judiciary charged with preventing precisely this kind of conscious-shocking result.

But even that is putting the cart before the horse. Before a jury may award damages, a plaintiff must first establish that the defendant caused the alleged injury. That requirement is not merely procedural; it is constitutional. The Due Process Clause forbids depriving a party of property absent proof sufficient to justify that deprivation. That proof is absent here, and this case should never have been allowed to reach a jury on damages. Indeed, the failure was foundational: the absence of proof of proximate causation. The appellees' case rested on the testimony of an "expert witness" who relied on an internet-accessible "safety data sheet"—not empirical scientific studies—to reach his conclusion that a toxic substance caused injuries. And no, he is not a toxicologist, nor has he ever treated a patient with exposure to this toxic substance. Yet he was permitted to supply the indispensable causal link. Without it, the case collapses. The law requires more than speculation. Because the appellees failed to prove causation, the circuit court should have granted a verdict for Old Dominion long before the jury was allowed to deliberate on damages unsupported by legally sufficient evidence.

I. $75 Million in Damages Shocks the Conscience When an award of damages is alleged to be excessive, we review the proof and all reasonable inferences in a light most favorable to the appellee and determine whether the be reduced to $3,500); Mo. Pac. Transp. Co. v. Miller, 227 Ark. 351, 364, 299 S.W.2d 41, 49 (1957) (remitting a $25,000 loss-of-consortium award to $15,000); Union Motor Co. v. Turbiville, 223 Ark. 92, 97, 264 S.W.2d 592, 595 (1954) (reducing award of $800 to $647.18); Daniels v. Allen, 206 Ark. 1155, 1159, 178 S.W.2d 853, 855 (1944) (reducing judgment from $20,000 to $10,000).

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verdict is so great as to shock the conscience of the court or demonstrate passion or prejudice on the part of the trier of fact.³We have stated "our rules and caselaw make it clear that it is incumbent upon the courts to determine whether a jury award is clearly excessive."⁴That responsibility is not discretionary, and it is certainly not new. We exercise it regularly.⁵ The majority's refusal to do the same here is not restraint; it is abdication. Remittitur is appropriate when the compensatory damages awarded are excessive and cannot be sustained by the evidence.⁶Our standard of review is the same as that for reviewing a motion for new trial: determining whether there is substantial evidence to support the jury's verdict.⁷Further, the Arkansas Rules of Civil Procedure provide for the trial court, and our court on review, to consider whether there are "excessive damages appearing to have been given under the influence of passion or prejudice and an error in the assessment of the amount of recovery, whether too large or too small."⁸When a court overturns an award, it is generally expected to provide an amount that "a reasonable person would estimate as fair compensation."⁹If the standard the majority follows today is that any

3 Advocat, Inc. v. Sauer, 353 Ark. 29, 43, 111 S.W.3d 346, 353 (2003); Smith v. Galaz,

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verdict—no matter how untethered from proof—must be affirmed, then our remittitur jurisprudence is not merely weakened, it is effectively abolished without acknowledgment. In making this determination, we consider familiar guideposts: past and future medical expenses, permanent injury, loss of earning capacity, disfigurement, pain and suffering, and mental anguish.¹⁰These are not hollow factors—they are guardrails that prevent juries from divorcing damages from reality.

First, the bookends. In Advocat, Inc., a ninety-three-year-old nursing-home patient died under conditions that can only be described as utterly inhumane. The record reflected systemic neglect: dried feces under her fingernails, lack of regular feeding, large open pressure sores from lying in her own waste, prolonged failure to bathe, severe genital infection, and profound deterioration in basic health. A jury awarded her family $15 million in compensatory damages for pain and suffering. This court reduced the award to $5 million on remittitur—not because the jury acted out of passion, but because the amount nonetheless shocked the conscience.¹¹In Vaccaro Lumber v. Fesperman, the plaintiff suffered a minor vehicle accident resulting in a lower-back strain, underwent conservative case is not what sum of money would be sufficient to induce a person to undergo voluntarily the pain and suffering for which recovery is sought or what it would cost to hire someone to undergo such suffering, but what, under all the circumstances, should be allowed the plaintiff in addition to the other items of damage to which he or she is entitled, in reasonable consideration of the pain and suffering necessarily endured or to be endured. The amount allowed must be fair and reasonable, free from sentimental or fanciful standards, and based upon the facts disclosed."

(emphasis added)); accord Stein on Personal Injury Damages § 8:8, at 8-19 (3d ed. 1997).

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chiropractic treatment, and incurred approximately $4,800 in medical expenses.¹²She was released without restrictions, required no ongoing care, and continued her normal daily activities. Nevertheless, a jury awarded $50,000 in damages. The court of appeals reversed, holding that the award—nearly ten times the proven damages—was unsupported by the evidence and could not stand. Even though some objective injury existed, the court refused to allow damages to drift beyond the bounds of reason.

At the other end of the spectrum, we have chosen not to remit in some cases. In Galaz, a long-haul truck driver suffered a ruptured spinal disc. Though her medical expenses were modest, the injury stripped her of her livelihood, forced her into lower- paying work, and curtailed both her independence and quality of life. An award of $300,000 was affirmed because the evidence demonstrated real and lasting economic and personal loss.¹³Likewise, in Builder's Transportation, Inc. v. Wilson, the plaintiff endured a torn rotator cuff, widespread injury, surgery, permanent impairment, and a temporary loss of independence.¹⁴There, a $245,000 award did not shock the conscience.¹⁵In Morrison v. Lowe, the plaintiff suffered catastrophic injury—both hands effectively destroyed—along with extreme pain, permanent disability, and substantial medical expense.¹⁶We therefore upheld a $350,000 award, noting the plaintiff "suffered gross and gory disfigurement" when

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his hands were "blown away[.]"¹⁷And in Carr v. Nance, where the plaintiff was nearly decapitated by a negligently strung steel cable, required emergency air transport, lost the ability to speak for months, and endured lasting impairment to basic functions, a $400,000 award did not shock the conscience.¹⁸In none of these cases were the awards in the tens of millions of dollars for compensatory damages.

No appellee here suffered injuries approaching the severity seen in Advocat, Inc. None experienced the kind of life-altering economic displacement present in Galaz. None endured the surgical intervention, permanent impairment, or loss of independence found in Wilson. None suffered the loss of limb or near decapitation like those in Lowe and Nance. Indeed, the common thread among the appellees is not catastrophic injury but relatively modest health concerns with subjective complaints.

Reviewing the evidence presented, McMillion testified to shortness of breath and the need to shorten his weekly sermons. Yet he admitted he passed the fitness portion of his duty tests with the Arkansas State Police. Bengi Bokker reported mild breathing difficulties. Jones described drainage during sleep and shortness of breath, while acknowledging a history of significant smoking through 2020. And although Jones testified about intimacy issues with his wife, recall that we have remitted for excessive loss-of- consortium awards.¹⁹Hunter Bokker likewise reported shortness of breath but conceded

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he has lost no income, and his "injuries" do not prevent him from hunting roughly thirty days a year. Billingsley testified to similar symptoms yet continues employment with United Parcel Service, even performing deliveries at a jog. For most of the appellees, these self- reported symptoms were not entirely new: four of them had noted preexisting conditions for many of the symptoms they complained about. And as noted above, their total medical expenses did not exceed $15,200. The majority attempts to dismiss my concerns about the disparity between damages and proof as an "obsession" with medical expenses. That obtuse portrayal wholly misses the point. Medical expenses matter here not because they are dispositive but because they are the only objective evidence of injury in this record. When a court is asked to uphold tens of millions of dollars in damages, it must look somewhere for evidentiary support. Here, there is nowhere else to look.

Now, let's review what is absent: the objective markers that typically justify substantial awards. No surgeries. No permanent disability requiring filing for benefits. No loss of earning capacity. No permanent disfigurement. No future medical expenses. No deprivation of livelihood, independence, or the ordinary activities of daily life. No pharmaceutical dependence arising out of the accident or recurring medical treatment with a physician, keeping in mind that some never saw a physician after the accident outside of their consultation with their expert witness. And no wrongful death. Here, there are only minimal past medical damages for some of the appellees.

even allowing for a 3 percent increase over fifty years would allow an award of only just over $40,000); Mo. Pac. Transp. Co., 227 Ark. at 364, 299 S.W.2d at 49 (remitting an identical award to $15,000).

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Most critically, those minimal past medical damages do not amount to proof of substantial economic or personal harm.²⁰As I noted earlier, medical expenses are not dispositive, but they are often the only objective anchor that courts have to assess the existence and extent of injury. Here, they are not merely minimal; they are the only concrete evidence of harm presented for half of the appellees. And for the other half, even that anchor was deliberately withheld from the jury. Old Dominion was able to introduce modest medical expenses for three of the appellees totaling roughly $15,200. The other three successfully excluded theirs. Yet the latter group received the largest awards. If $15,200 in total economic damages can sustain a $75 million verdict, then the phrase "shocks the conscience" has lost all meaning and, therefore, any limiting function. It becomes not a standard but a slogan—invoked when convenient but never applied.

To be clear, the appellees' exposure may very well have caused temporary pain or some lingering discomfort. But again, the law does not permit juries to convert transitory or moderate injuries into generational wealth. An award of $5 million to $25 million per

20 See Gladstone v. W. Bend Mut. Ins. Co., 166 N.E.3d 362, 368 (Ind. Ct. App. 2021) ("Common sense and experience dictate that a more serious injury generally brings with it greater medical expenses as well as greater pain and suffering."); see also Hannah v. Haskins,

612 F.2d 373, 375 (8th Cir. 1980) ("Evidence relating to such [medical] payments . . . [have] been held to be admissible for the purpose of establishing the extent of injury or to show that the plaintiff had a motive for feigning injury."); accord Luther v. Lander, 373 P.3d 495, 501 (Alaska 2016) (where the Supreme Court of Alaska held that "evidence of medical expenses is admissible when it is relevant to the severity of an injury."); Warren v. Ballard,

467 S.E.2d 891, 893 (Ga. 1996) (where the Supreme Court of Georgia held that "the amount of medical bills may be admissible on a claim of pain and suffering to show the seriousness of the injury"); Meek v. Montana Eighth Jud. Dist. Ct., 349 P.3d 493, 495 (Mont.

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plaintiff—unbridled by the evidentiary benchmarks this court has long required—does not merely stretch the bounds of reason—it obliterates them. A unanimous six-member panel of the court of appeals agreed.²¹Specifically, the court noted that the appellees in this case

"have not presented evidence of severe pain and suffering that will last their entire lives. The only evidence they have presented is that . . . a few activities are affected, though not enough to change their life expectancies or earning capacities."²²Furthermore, Arkansas courts have "reduced awards or ordered new trials for excessive pain-and-suffering verdicts in considerably less dramatic cases" than the present case.²³Ultimately, the court of appeals addressed the award to each appellee and found that every single one "shocked the conscience,"

was "excessive," and was "not supported by substantial evidence."²⁴I agree entirely. This court often grapples with substantial legal questions of constitutional significance or complex novel issues of first impression. This case presents neither. In short, this is not a close case. The verdict does not simply exceed reasonable compensation; it shocks the conscience in the most literal sense. What remains is a result driven not by the measured application of law to fact, but by passion, sympathy, or speculation. It bears repeating: If these facts justify an award of $75 million, then the concept of "shocking the conscience"

has lost all meaning. Accordingly, even if I were to agree with the majority's analysis on

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the merits, which I do not, I would apply the doctrine of remittitur and radically reduce the appellees' awards. This case does not simply affirm a jury verdict; it signals to the bench and the bar that meaningful judicial review of damages awards has ceased to exist. The result is predictable. When juries are told, whether implicitly or explicitly, that their awards will not be scrutinized against the evidence, the limiting principles that define our civil justice system erode making this indispensable institution vulnerable to a loss of trust from the very people it is designed to serve. The judiciary's role is not to blindly ratify verdicts, but to ensure they comport with the law. When that role is abandoned, the law does not evolve—it devolves into ad hoc decision-making.

II. Lack of Proximate Causation Causation is a rather simple concept,²⁵grounded in the Fifth Amendment to the U.S. Constitution and applied to the States through the Fourteenth Amendment.²⁶Thus, we

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have a constitutional command that no person shall be deprived of their property without

"due process of law."²⁷Without a requirement that a plaintiff prove causation, there can be no procedural due process. In this country, private property is fundamental to the maintenance of our liberty. John Adams once said, "Property must be secured, or liberty cannot exist."²⁸And more appropriate here, Ludwig von Mises plainly stated, Private property creates for the individual a sphere in which he is free from the state. It sets limits to the operation of the authoritarian will. It allows other forces to arise side by side with and in opposition to political power. It thus becomes the basis of all those activities that are free from violent interference on the part of the state.²⁹

Thus, as a fundamental principle, we do not take property from Entity A and award it to Persons B through G without proof of why it should be taken. Yet that is precisely what occurred at trial. In this case, the majority strips the causation requirement from Arkansas law and, in doing so, strips due process with it.

It is first necessary to set out the undisputed facts that underscore the failure of proof. A nonparty caused the underlying accident that resulted in Old Dominion's semitruck overturning and catching fire. The truck carried a lawful quantity of formic acid. The liability that deprives a defendant of property absent a legally sufficient connection between that defendant's conduct and the plaintiff's injury. Liability disconnected from causation is liability without due process.

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appellees—six first responders—alleged that exposure to fumes from that substance caused breathing difficulties at the scene and for a short time thereafter. Thus, causation is not simply incidental; it is the entire case.

This case also presents this court with its first opportunity to address causation in the context of a one-time exposure to a toxic substance. Old Dominion urges adoption of a two-step causation framework requiring that general causation (i.e., whether a substance is capable of causing a particular injury) and specific causation (i.e., whether it did cause a particular injury in a particular case) be shown.³⁰That framework is logical, particularly where alternative causes abound, such as preexisting asthma, smoking, or vaping. A. General Causation

To establish general causation, the appellees were required to show that exposure to formic acid can cause the alleged breathing issues. Their sole expert was Dr. Scott Manaker.³¹To be scientifically reliable, a theory must rest on principles that (1) can be or have been tested; (2) have been subjected to peer review and publication; (3) have known or potential error rates or standards; (4) are governed by established standards controlling

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the technique's operation; and (5) enjoy general acceptance within the relevant scientific community.³²

Dr. Manaker's testimony supplied none of this.

He did not rely on any scientific studies establishing that formic acid can cause— much less did cause—the injuries alleged here. His own testimony confirms as much:

OLD DOMINION'S TRIAL COUNSEL: Have you ever seen a

scientific study that connected exposure to formic acid to any

of the conditions complained of by the plaintiffs in this case?

DR. MANAKER: No, not specifically. [Emphasis added.]

OLD DOMINION'S TRIAL COUNSEL: Have you yourself

conducted any studies, lab work, anything to test the effect of formic acid on someone's respiratory system?

DR. MANAKER: No. [Emphasis added.]

. . .

OLD DOMINION'S TRIAL COUNSEL: Have you ever treated a patient for exposure to formic acid?

DR. MANAKER: No. [Emphasis added.]

. . .

APPELLEES' TRIAL COUNSEL: [W]hat is formic acid, and how is it dangerous to the human body?

DR. MANAKER: So[,] I think that's a great question. And I have to confess that I had the same question after seeing the

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gentlemen here. Again, as a part of my routine process, when I'm not familiar with a substance that someone has been exposed to, I just go on the internet, and I pull down something called the safety data sheet. . . . [T]he safety data sheet said it was harmful. It had the LD50, the lethal dose at which 50 percent of the rodents, the rats, died upon inhalation exposure.^[33]It listed all of the precautions you're supposed to have if you are accidentally inhaling it or exposed to it. [Emphasis added.] And in many ways, it is a typical acid. You don't want to breathe it. You don't want to splash it on your skin or eyes and get a burn. You certainly don't want to breath[e] it or drink it. So that's what formic acid is. It's an acid. It's a chemical. . . . And when it is in pure form and it splashes on your skin or in your eye, you will get a chemical burn. . . . I saw that on the safety data sheet, and I said okay, that sounds like something which clearly could produce the range of injuries that we're going to be talking about[.] [Emphasis added.]

Dr. Manaker's causation testimony, distilled, was that formic acid sounds like something that could produce the alleged injuries. That is the entirety of the appellees' proof on causation. The result is unavoidable: the jury was left to do what the law forbids—speculate.³⁴Reliable

33 Courts have repeatedly recognized that reliance on animal studies to establish human causation is "very problematic." David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 Brook. L. Rev. 51, 62 (2008). Likewise, reasoning by analogy to other chemicals is no substitute for proof. "Such reasoning is fallacious." Id. at 64. Because "not only are animal studies typically conducted at much higher levels than relevant human exposure, but a substance that is carcinogenic or teratogenic (causing birth defects) in one species (e.g., rabbits) is not necessarily carcinogenic or teratogenic in another (e.g., humans)." Id. at 62 (internal citations omitted).

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expert testimony must rest on more than intuition or anecdote. It must be grounded in scientifically valid methods and principles.³⁵Dr. Manaker's opinion satisfies none of those hallmarks. Chief Judge Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit clearly stated the failure to link a plaintiff's diagnosis of Parkinson's disease to a toxic- tort exposure to manganese:

That is a plausible hypothesis. It may even be right. But it is no more than a hypothesis, and it thus is not 'knowledge,' nor is it 'based upon sufficient facts or data' or the 'product of reliable principles and methods . . . applied . . . reliably to the facts of the case.'³⁶

The explanation for this failure is not difficult to find. Dr. Manaker is not a toxicologist; he is a pulmonologist. That distinction matters.³⁷Toxicologists study chemical substances, such as poisons, and their effects on the human body; pulmonologists study diseases of the lungs.³⁸Those are serious credentials, but they do not qualify him to opine such substantial facts, on which to base a verdict, before it will be permitted to stand." Mo. Pac. R.R. Co. v. Davis, 208 Ark. 86, 186 S.W.2d 20 (1945).

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on the toxicological properties of a chemical he had admittedly never encountered. Take a moment to digest that. That is not expert testimony; it is a Google search with a medical degree. A board-certified physician, testifying as an expert, relied on an internet printout to supply the critical causal link despite his lack of knowledge about the substance at issue. And the circuit court permitted it.³⁹

By Dr. Manaker's logic, all acids are created equal and are equally dangerous in all contexts.⁴⁰Under the reasoning endorsed today, any substance bearing the label "acid"

could be presented to a jury as inherently harmful, unlinked to dose, exposure, or scientific proof. That is not science. That is word association masquerading as expert testimony. Speculation is not substantial evidence.⁴¹On that ground alone, reversal is required.

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B. Specific Causation But the circuit court's failure runs deeper still. Even if the majority stretches to find general causation satisfied, the appellees wholly failed to establish specific causation. Specific causation requires proof of exposure: the amount of the substance present, the manner in which it dispersed, the degree of contact, and the duration of any effects.⁴²Without that evidence, a fact-finder cannot determine whether the substance—rather than some other cause—produced the alleged injury. There was no such evidence here. Again, Dr. Manaker's testimony is dispositive:

OLD DOMINION'S TRIAL COUNSEL: [I] want to know[,] can

you tell the jury quantitatively how much formic acid came in

contact with the internal airways of those two plaintiffs?

DR. MANAKER: There's no way to figure that out. [Emphasis

added.]

. . .

OLD DOMINION'S TRIAL COUNSEL: So[,] depending on where someone was standing or which way the wind was blowing or which way the gas may have risen from its origination point, there's really no way to say how much exposure an individual actually had?

DR. MANAKER: Correct.

When asked how much formic acid the appellees were exposed to, his answer was unequivocal: "There's no way to figure that out." When asked whether exposure levels could vary based on position, wind, or dispersion, he agreed there was "no way to say" how

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much any individual actually encountered. That concession is not a minor evidentiary gap. It is a vast evidentiary gulf that represents a complete failure of proof. Indeed, Dr. Manaker relied on another physician's report suggesting that some portion of a barrel had dissipated over time while conceding he had no idea whether any formic acid was, in fact, actually burning at the scene:

OLD DOMINION'S TRIAL COUNSEL: [C]an you tell the jury

what the quantitative amount of formic acid [the appellees]

were exposed to?

DR. MANAKER: No. The only quantitation that I'm aware of

is in Dr. Kind's report where there were, on one occasion I

believe, about a quarter of the barrel was empty, and on another occasion, it was visualized to be about one quarter remaining, so it was clearly going down over time. [Emphasis added.]

That is neither evidence of exposure nor evidence that it caused the appellees' current health conditions. It is conjecture layered on assumption.⁴³

Even if the majority does not dispute the appellees' health conditions, it should have held that the appellees utterly failed to present substantial evidence of causation and reversed as a matter of law. Or, it could have explained why the proof failed under any recognized framework for toxic-exposure claims. It did neither. Instead, it permits six plaintiffs to recover millions based on the opinion of an expert who had never encountered the substance at issue, conducted zero studies, cited no literature, could not quantify exposure in any meaningful way, or exclude any other cause for the appellees' health status (i.e.,

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smoking, vaping, age, prior asthmatic conditions).⁴⁴That is not a refinement of our causation standards—it is their abandonment. And when causation is abandoned, due process is not far behind. The failure of proof on causation does more than undermine liability; it renders the damages award indefensible. Without a reliable causal link, there is no principled basis to attribute any portion of the $75 million verdict to Old Dominion's purported tortious conduct. What remains is not fair compensation, but speculation cloaked in the form of a judgment.

III. Conclusion This was not a close case. No reliable causal link. No legally supportable damages. No basis for a $75 million verdict. Yet the majority affirms it anyway. In doing so, it replaces law with wishful thinking, evidence with assumption, and judgment with guesswork. If this is what now passes for proof, then the word has lost its formerly concrete meaning. If this is what passes for justice, then I fear the concept is muddied beyond understanding.

Decisions like this do not reside in a vacuum. They reflect a judiciary that has drifted from its obligation to apply the law as written and instead slouches toward results untethered from principle. The rule of law demands courts that adhere to legal standards, not outcomes, and that resist the temptation to affirm verdicts that cannot be justified by the record. Almost forty years ago, Justice Darrell Hickman of this court said, "The courts cannot solve all of society's ills, and we should not lend them to those who do not seek justice. By becoming

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purpose of the courts."⁴⁵If courts abandon their roles as neutral arbiters of the law, that responsibility will not disappear; it will shift and invite legislative intervention and correction where judicial restraint should have sufficed. When courts decline to enforce principled limits on damages, the pressure to impose those limits through legislation becomes inevitable. If this case becomes a catalyst for sweeping tort reform, it will not be because the law demanded it, but because the majority abdicated its duty to apply the law as written. Accordingly, the majority's decision today does not misapply settled law—it discards it. In its place, the majority offers no limiting principle, no meaningful standard, and no assurance that similar cases will be decided alike. What remains is a system in which liability is imposed without proof, damages are awarded without measure, and appellate review exists in name only. That is not the rule of law. It is the rule of the majority's will. And it has no place in our jurisprudence.

I dissent.

WOOD and BRONNI, JJ., join.

Munson, Rowlett, Moore and Boone, P.A., by: Zachary Hill; Wright Close & Barger, LLP, by: Eva M. Guzman, pro hac vice, for appellants.

Bailey & Oliver Law Firm, by: Sach D. Oliver, Frank H. Bailey, T. Ryan Scott, Geoff Hamby, and Samuel W. Mason; Easley & Houseal, PLLC, by: John I. Houseal, B. Michael Easley, and Austin H. Easley; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellees.