Andrew v. Depani-Sparkes

Decision Date16 May 2017
Docket NumberCase Number: 114082
Citation396 P.3d 210
Parties Brandon and Danielle ANDREW, as Guardians of B.A., a Minor Child, and Individually, as her Parents, Plaintiffs/Appellants, v. Elisa DEPANI–SPARKES, D.O., The Physician Group, PLLC, a/k/a Occo Healthcare Network, and Integris Ambulatory Care Corporation d/b/a Integris Family Care Edmond, Defendants, and Mercy Health Center, Inc., d/b/a Mercy Health Center, Defendant/Appellee.
CourtOklahoma Supreme Court

Glendell D. Nix, Jacob Diesselhorst, Andy J. Campbell, Nicole R. Snap–Holloway, Maples, Nix & Diesselhorst, PLLC, for Plaintiffs/Appellants.

Kyle Sweet, Curtis Dewberry, Naureen Hubbard, Jasper Abbott, Sweet Law Firm, Oklahoma City, Oklahoma, for Defendant/Appellee.



¶ 1 Plaintiffs filed an action in the District Court alleging defendants' negligence relating to the prenatal care and birth of plaintiffs' child. That court granted summary judgment to defendant Mercy Health Center and plaintiffs appealed. Plaintiffs argue the trial court did not apply a correct standard for causation and failed to recognize the testimony from their expert witnesses. Mercy argues the trial court correctly sustained a motion for summary judgment which relied in part on a Daubert1 motion filed by Mercy. Mercy also argues plaintiffs simply failed to show causation required in a negligence action by an expert opinion. We reverse the summary judgment because plaintiffs' materials used to object to summary judgment showed expert opinions on causation sufficient to create a question of fact. We also explain a Daubert adjudication may not be applied retroactively to support a prior judgment. We remand the cause for further proceedings.

¶ 2 There were five pending motions in the trial court. Two were motions for summary judgment filed by defendants, and one of these was filed by Mercy. Three were Daubert motions. Two Daubert motions were filed by defendants: (1) Mercy's motion to exclude plaintiffs' expert concerning causation and the conduct of Mercy's nursing staff, and (2) Sparkes' motion to exclude the opinions of a different expert witness for plaintiffs. One Daubert motion was filed by plaintiffs to exclude testimony concerning a causation theory advocated by defendants.

¶ 3 On April 23, 2015, the trial court sent to the parties an email which granted Mercy's amended motion for summary judgment. The email stated plaintiffs failed to submit "evidence tending to prove that any act of Defendant's nursing staff was the direct cause of the injury to Plaintiffs' minor child."2

¶ 4 The next day on April 24th after granting Mercy's summary judgment motion, the journal entry of the summary judgment was filed and the trial court held a hearing on the pending Daubert motions. The trial court stated it understood the issues, oral argument was not necessary, but would be provided if any party wanted an oral argument. Tr. at 4–5. All counsel waived argument. The trial court granted Mercy's Daubert motion.

¶ 5 On April 28, 2015, and four days after the Daubert hearing, plaintiffs filed a "motion to reconsider" the summary judgment granted to Mercy, or in the alternative for the trial court to certify the court's ruling for an immediate appeal pursuant to 12 O.S. 994. The motion had additional factual material attached, and Mercy objected to the motion.

¶ 6 On May 13, 2015, the trial court rendered an "Amended Order Granting Mercy Health Center, Inc.'s Amended Motion for Summary Judgment" that was filed June 2, 2015. The amendment repeated the language on the Court's April 24th journal entry and added a 12 O.S. 994 certification stating the order was a final adjudication. The trial court also stayed the proceeding until completion of the 994 appeal.

¶ 7 Plaintiffs appealed and the Court of Civil Appeals affirmed the trial court with one judge dissenting. Plaintiffs sought certiorari, three Special Justices were appointed to participate for three Justices of the Court who recused or disqualified in the matter. The Court granted the petition for certiorari. We vacate the opinion by the Court of Appeals, reverse the summary judgment, and remand the matter for additional proceedings.


¶ 8 For an adjudicated claim to be suitable for immediate appeal pursuant to 12 O.S. 994,3 it must not arise from the same transaction or occurrence as any unadjudicated claims left pending in the trial court.4 Both plaintiffs and defendants briefed the issue whether plaintiffs' suit was brought as single or multiple causes of action against multiple defendants. Both plaintiffs and Mercy argued the cause of action against Mercy is a cause of action separate and distinct from those pled against other defendants in the trial court. The Court has appellate jurisdiction to review the District Court's judgment.


¶ 9 Generally, interlocutory orders that are not made subject to immediate appellate scrutiny may nevertheless obtain appellate scrutiny upon an appeal from a subsequent appealable order or judgment.5 A trial court's Daubert order is an evidentiary ruling, and an interlocutory order anterior to judgment which is usually reviewed when a subsequent judgment or appealable order is appealed and after adequate steps have been pursued to preserve the alleged error.6

¶ 10 The appellate record and supplemental record filed in this Court do not contain (1) any Daubert motions or responses thereto, or (2) any journal entry of the trial court expressly granting or denying a Daubert motion. Generally, error assigned on appeal must be shown by the appellate record.7 When the alleged error involves an evidentiary issue, the record on appeal must contain the evidence and a trial court record showing the judge's ruling. For example, an appellate complaint of insufficient evidence to support a judgment must be supported on appeal with the evidence submitted to the trial court.8 In the matter before us, we do not review a usual Daubert issue of scientific validity or methodology used in an opinion provided by an expert witness.9 Our appellate review of a Daubert issue is limited to the extent it is applicable to the motion for summary judgment and to the extent it may be included in that judgment as we explain herein.


¶ 11 On April 24th, one day after deciding the summary judgment motion, the journal entry for the summary judgment was filed and the trial court also heard a Daubert motion. Four days later plaintiffs filed a motion to reconsider the summary judgment awarded to Mercy. Plaintiffs attached additional factual material. Mercy argued plaintiffs' April 28th motion to reconsider with an expert witness affidavit could not be considered by the trial court. Mercy argued plaintiffs' new affidavit attached to the motion conflicted with that expert's deposition testimony and the motion for reconsideration fell short of the requirements in 12 O.S. 651 (new trial)10 or 1031 (vacation or modification).11

¶ 12 Prior to the repeal of 12 O.S. 317 in 1984,12 our law distinguished orders modifying a judgment and those amending a judgment,13 and after that date we explained the function of amending a judgment by an order granting nunc pro tunc relief to correct a clerical error on the face of a judgment with an amended judgment stating what actually occurred. An amendment (nunc pro tunc ) could relate back,14 but a modification of a judgment did not relate back because it was considered a final order after an "original judgment."15

¶ 13 The journal entry of the amended judgment filed on June 2nd did not correct a clerical error in the April 24th journal entry, but added a 994 certification of finality which made the adjudication appealable at that time.16 The "amendment" did not amend or modify a "judgment." The trial court's order granting "summary judgment" to Mercy on April 23rd was not a judgment at that time, but a partial summary adjudication granted to one of the defendants in the action, and the order did not become a judgment until May 13th when the 994 certification was made by the trial court, and then it was made appealable on June 2nd when a journal entry was filed.

¶ 14 The timing of the trial court's creation of a 994 judgment shows that plaintiffs' motion for reconsideration was not barred or restricted in scope by either 651 or 1031, and we conclude Mercy's argument on this point is incorrect, as we now explain. In House v. Town of Dickson , we stated the following.

A partial summary adjudication is not a judgment under title 12, section 681 of the Oklahoma Statutes nor is it a final order under title 12, section 953. Reams , 1979 OK 171 at ¶3, 604 P.2d at 374. A partial summary adjudication is not appealable unless it is an interlocutory order (1) appealable by right under title 12, sections 952(b)(2) or 993 or other statutory provision or (2) certified for immediate appeal under title 12, section 952(b)(3), or (3) it is prepared as a final judgment, order, or decree at the direction of the court with a finding that there is no just reason for delay and disposes of some of the claims pursuant to title 12, section 994. Id. The district court's partial summary adjudication before us is not appealable by right nor does it contain the necessary language for review as required by title 12, sections 952(b)(3) or 994.

House v. Town of Dickson , 2007 OK 57, ¶9, 193 P.3d 964, 967–968, citing Reams v. Tulsa Cable Television, Inc. , 1979 OK 171, ¶3, 604 P.2d 373, 374, and 12 O.S. 952, 993, & 994.

Our opinion ten years earlier in LCR, Inc. v. Linwood Properties17 was consistent with House and explained a "motion for a new trial" challenging a partial summary adjudication was not a 12 O.S. 651 motion for new trial or a 12 O.S. 1031.1 motion.18 A partial summary adjudication which is lacking finality and appealability as a non-appealable interlocutory order "is but an intermediate...

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