Agrawal v. Duke Energy Field Servs., L.P.

• Decision Date: 27 June 2013
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,No. 109,053.,109,053.
• Citation: 307 P.3d 371
• Parties: Kris AGRAWAL and Vimala Agrawal, Plaintiffs/Appellants, v. DUKE ENERGY FIELD SERVICES, L.P., Kimray, Inc., and Hanover Compression Limited Partnership, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

307 P.3d 371

Kris AGRAWAL and Vimala Agrawal, Plaintiffs/Appellants,

v.DUKE ENERGY FIELD SERVICES, L.P., Kimray, Inc., and Hanover Compression Limited Partnership, Defendants/Appellees.

No. 109,053.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

March 15, 2013.

Certiorari Denied June 27, 2013.

Appeal from the District Court of Creek County, Oklahoma; Honorable Douglas W. Golden, Judge.

AFFIRMED.

G. Steven Stidham, Tulsa, Oklahoma, for Appellants.

Ryan A. Ray, Tulsa, Oklahoma, for Appellee, Duke Energy Field Services, L.P.

Stephen R. McCalla, Margaret C. Kerr, Chickasha, Oklahoma, for Appellee, Kimray, Inc.

J. Christopher Davis, Jonathan Cartledge, Tulsa, Oklahoma, for Appellee, Hanover Compression Limited Partnership.

LARRY JOPLIN, Chief Judge.

¶ 1 Appellants seek review of the trial court's orders dismissing Kris Agrawal's personal injury claim and Vimala Agrawal's corresponding loss of consortium claim upon the Defendants' Renewed Motion to Dismiss based upon fabrication of evidence related to perjury. Plaintiff/Appellant Kris Agrawal's claim was dismissed by the trial court on January 22, 2009. Agrawal appealed this decision and the appellate court dismissed the appeal as premature because the trial court failed to address the loss of consortium claim of Plaintiff's wife in the original order of dismissal.¹ On December 2, 2010, the trial court issued a “supplemental order of dismissal” as to Vimala Agrawal's derivative loss of consortium claim.²

¶ 2 After the dismissal of Vimala Agrawal's loss of consortium claim, Appellants appealed the dismissal of both Kris Agrawal's claims and Vimala Agrawal's loss of consortium claim. Defendants objected to Appellants' (Kris and Vimala Agrawal) amended petition in error and asserted the trial court was not authorized to accept Appellants' designation of record and that Kris Agrawal was not properly listed as an appellant on the December 29, 2010 petition in error, rendering the amended petition in error, filed January 24, 2011, ineffective for the pursuit of Kris Agrawal's appeal. Defendants argued only Vimala Agrawal's loss of consortium claim was addressed in the December 29, 2010 petition in error and no additional parties could be added. By order of the Oklahoma Supreme Court, March 10, 2011, the court order stated that the trial court was authorized to accept the designation of record and “[b]oth Kris and Vimala Agrawal are listed as appellants in the style on the petition in error filed on December 30, 2010. Bane v. Anderson, Bryant & Co., 1989 OK 140, 786 P.2d 1230. This appeal shall proceed.” ³

¶ 3 This case arose on September 16, 2001, when Plaintiff/Appellant, Kris Agrawal, and his former co-plaintiff, William Green, were injured as a result of a gas pressure vessel explosion while working on an oil and gas lease in Jenks, Oklahoma. Agrawal lost his right leg as a result of the explosion and spent weeks in the hospital. Green was injured as well. Agrawal and Green brought suit against the above named Defendants in January 2002. Vimala Agrawal brought her derivative loss of consortium claim on September 15, 2003 under a different case, which was consolidated with the earlier case of her husband on January 8, 2004.

¶ 4 On December 11, 2003, William Green, Agrawal's former co-plaintiff, gave his first deposition in the case. One of the subjects of the deposition was a Taylor safety valve, a type of pressure valve, attached to the tank remnants and visible in photos of the exploded tank. During Green's deposition, Defendants' counsel asked Green questions about the safety valve, when it had been installed and who had installed it. Green testified he had installed the valve about three weeks prior to the explosion. Six months after the deposition, on May 12, 2004, Green and Agrawal's counsel submitted a correction sheet for the Green deposition, stating Green had actually installed the Taylor valve to the tank remnant after the explosion. Green submitted to another deposition on May 26, 2004, confirming he had installed the valve after the explosion, instead of prior to the accident as he had originally testified, and admitted he had done so to mislead the Defendants, the court, and eventually a jury:

Q: You wanted to hide from the defendants and the jury and this court the fact that you substituted—that you manipulated the evidence after the explosion, didn't you, Mr. Green?

A: Yes.

¶ 5 Appellant, Kris Agrawal, gave his first deposition in the case on January 14, 2004, approximately a month after Green's initial untrue deposition testimony and prior to submission of Green's correction sheet. Agrawal was asked about the valve in his January 2004 deposition as well:

Q: Let me have you refer to DEFS Number 25, which is a picture of a valve that was connected to the vessel on the day that it exploded. Were you involved in any way in connection with the installation of that valve?

A: No.

Q: Do you know who installed it?

A: Nope.

Q: Do you know whether that valve has ever been tested in any way to determine at what pressure it will operate?

A: I don't know.

Q: Do you know who installed the valve?

A: No, I don't.

...

Q: And we had talked about this blue valve on DEFS Number 25 that was connected to the tank. Did you notice that valve open up or hear anything from that valve?

A: I do not know that.

Q: Pardon me?

A: I do not know. I don't have any recollection.

Q: Okay. So as we sit here today, you don't recall the blue valve in DEFS Number 25, you don't recall that opening or venting pressure or anything like that?

A: Nope. I was just not there at that point when things happened.

¶ 6 It became apparent after Mr. Green's evidence manipulation came to light in the Spring of 2004 that Agrawal may have found out about Green's improper actions prior to his January 2004 deposition. Agrawal indicated during his June 2006 deposition that he and Green had discussed the matter of Green's post-explosion evidence manipulation in December 2003, after Green's deposition and prior to Agrawal's deposition:

Q: [to Agrawal] This discussion that you were talking about, is that the one that took place in the parking garage of this building after Mr. Green's initial deposition?

A: [Agrawal's response] I think so.

However, Agrawal did not inform Defendants at his own January 2004 deposition of his possible concern about the inaccuracy of Green's December 2003 testimony. The record does not reveal any example in Agrawal's January 2004 deposition wherein he comes forward with regard to Green's dishonesty or at least informed the Defendants that he had reason for concern regarding Green's previous testimony and the possibility the tank was manipulated after the explosion.

¶ 7 Agrawal later denied having known about Green's post-explosion valve installation until after his own deposition, indicating he had mis-spoken or misunderstood when he answered the questions at his 2006 deposition. In an apparent effort to clarify when he found out about the valve installation and explain why no correction of his previous testimony had been made or was necessary, Agrawal submitted the following affidavit on the matter in March 2008:

Kris Agrawal, being of lawful age and first duly sworn, hereby deposes and states as follows:

1. I am one of the Plaintiffs in the captioned cause. I am making this affidavit on the basis of direct personal knowledge.

2. I was severely injured when the pressure vessel exploded on September 16, 2001. I lost my right leg. My left leg was reattached, but rotated inward 30 degrees.

3. I have no direct personal knowledge of when a blue Taylor pressure relief valve was installed on the pressure vessel that exploded. I was not present when the valve was installed.

4. I learned that the valve had been installed after the explosion[,] which was confirmed upon investigation on or about March 18, 2004. I told my lawyers, when such information was still a suspect and when the information was confirmed.

5. All of the questions I have answered are in accordance with the Court Ordered deposition pertaining to my knowledge prior to and to the date of the explosion.

(Emphasis in original).⁴

¶ 8 In March 2004, shortly before Green submitted his correction sheet, admitting the valve was installed after the explosion, Defendants became aware there may have been manipulation of evidence after having spoken with one of Green's former co-workers, whom Green had first approached and asked to attach the valve after the explosion. This former co-worker was apparently concerned about the propriety of installing the valve after the accident and refused to do so, upon which Green then installed it himself.

¶ 9 On February 15, 2008, Defendants filed a motion to dismiss the case based upon Plaintiffs' fabrication of evidence and related perjury. Green and his wife dismissed their claims without prejudice prior to the trial court's first order dismissing Kris Agrawal's claim on January 22, 2009.⁵ However, Kris and Vimala Agrawal continued to pursue their claims against the above-named Defendants.⁶ The trial court conducted a hearing on April 4, 2008, at which time the court made “a factual determination that both Mr. Green and Mr. Agrawal have acted improperly, and pursuant to at least [ § ] 2011, should be sanctioned appropriately.” The trial court declined to grant Defendants' motion to dismiss at the April 2008 proceeding, instead holding the matter in “abeyance,” for a determination of one of two things: a) a determination that the only issue is that of the tank and that it would have otherwise acted properly, if the valve had been installed prior to the explosion or b) if this determination is not made and the matter proceeds to trial, then the court stated it would conduct a factual hearing to determine monetary sanctions, considering the amount of money the Defendants had to spend “chasing...