Christian v. Gray
| Decision Date | 11 February 2003 |
| Docket Number | No. 96,813.,96,813. |
| Parties | Dwain Lee CHRISTIAN, III, individually and as parent and next friend of Malorie Christian and Michah Christian, minors, Petitioners, v. Karl GRAY, Judge of the District Court of Oklahoma County, Respondent, and Mid-South Abatement Company, Inc., Lippert Bros., Inc., State Fair of Oklahoma, Inc., and the City of Oklahoma City, Real Parties In Interest. |
| Court | Oklahoma Supreme Court |
Mickey James and Andrew W. Gass, Green, James & Williams, Oklahoma City, OK, for Petitioners.
Henry D. Hoss, Shawn E. Harrell, and Amy D. White, McAffee & Taft, Oklahoma City, OK, for Real Party in Interest State Fair of Oklahoma, Inc.
Christian S. Huckaby, Looney, Nichols & Johnson, Oklahoma City, OK, for Real Party in Interest City of Oklahoma City.
Robert D. Looney, Jr., Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City, OK, for Real Party in Interest City of Oklahoma City.
Rex K. Travis, Oklahoma City, OK (Thomas A. Wallace, Norman & Edem, Oklahoma City, of counsel on the brief) for Amicus Curiae Oklahoma Trial Lawyers Association.
Karen M. Grundy & Jon Starr, Tulsa, OK, for Amicus Curiae Oklahoma Association of Defense Counsel.
¶ 1 The Christians brought suit in the District Court of Oklahoma County after they had attended a circus performance at the State Fair Arena in Oklahoma City. They alleged that they were injured by airborne chemicals they inhaled while attending the circus. The trial court ruled that Plaintiffs' expert witness was not competent to give a medical opinion on the cause of injury. We assume original jurisdiction on Plaintiffs' application, and issue a writ to the trial court with instructions to provide the parties an opportunity to present the determinative issues as we view them to be proper under the Daubert and Kumho cases.
¶ 2 Defendants filed a motion in limine to exclude the testimony of Plaintiffs' expert witness on the issue of the causation of Plaintiffs' injuries. The trial court granted the motion, and stated that the expert was not competent to give a medical opinion on the cause of Plaintiffs' injuries. The trial court relied upon Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co., Ltd. v. Patrick Carmichael et al., 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). This Court has not previously determined whether Daubert and its progeny apply to civil proceedings in this State.1 Several states have adopted or use Daubert when determining admissibility of an expert's opinion.2
¶ 3 By previous order of the Court this controversy was recast from a proceeding seeking certiorari of an interlocutory order to an application for extraordinary relief and assumption of original jurisdiction. This matter is one of first impression. Recasting such a proceeding is procedurally proper,3 and assuming original jurisdiction serves the interests of judicial economy and clarifying new procedural questions for courts statewide.4 An extraordinary writ proceeding is not the usual procedure for reviewing the correctness of an order that limits testimony to be presented at a subsequent trial. Ellison v. Ellison, 1996 OK 64, 919 P.2d 1, 2. Our assumption of jurisdiction in this matter is tied to the importance of this first-impression issue for a procedure to be used by courts statewide, and we caution parties that this Court will not serve as a pre-trial reviewing court for orders adjudicating motions in limine. We thus assume original jurisdiction to decide the controversy before us. We determine that oral argument will not materially assist the Court, and deny the application of State Fair of Oklahoma Inc. for en banc oral argument.
¶ 4 Plaintiffs alleged that they were injured by airborne chemicals that they inhaled while attending a circus in the State Fair Arena. Defendants filed a motion in limine to exclude the testimony, opinions, and exhibits of Plaintiffs' expert on the issue of the causation of Plaintiffs' injuries. The trial court granted the motion, stating that plaintiffs' expert "is not competent to give a medical opinion on the cause of injury based upon the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),Kumho Tire Co., Ltd. v. Patrick Carmichael et al., 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) and their progeny." First, we must determine if Daubert and its progeny apply, and then if so, whether Daubert was applied correctly.
¶ 5 In Oklahoma the testimony of an expert is controlled by the applicable statutes found in the Oklahoma Evidence Code, 12 O.S.2001 § 2702 (Testimony by Experts);5 § 2703 (Bases of Opinion Testimony by Expert);6 § 2704 (Opinion on Ultimate Issue);7 and § 2705 (Disclosure of Facts or Data Underlying Expert Opinion).8 The Oklahoma Evidence Code was adopted in 1978 by our Legislature and was modeled, in most parts, after the then current Federal Rules of Evidence. 1 L. Whinery, Oklahoma Evidence, The Guide to the Oklahoma Evidence Code, Preface, (1985); 1978 Okla.Sess.Laws c. 285 (eff.Oct.1, 1978).
¶ 6 Professor Whinery has explained that § 2702 is "identical in substance" to Federal Rule 702, §§ 2703 and 2704 are identical to Rules 703 and 704, and § 2705 has slightly different language than that in Rule 705 but "[t]here is no indication that the Legislature intended a substantive change" by the modification. 1 L. Whinery, Evidence, at 238, 243, 247, 255. We have said that federal court decisions may be examined for persuasive value when they construe federal evidence rules with language substantially similar to that in our evidence statutes. Willoughby v. Oklahoma City, 1985 OK 64, 706 P.2d 883, 887. We thus turn to the discussion of Daubert.
¶ 7 In Daubert the Court observed that the previously used general-acceptance test in Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013 (1923), for the admissibility of scientific evidence had been displaced by the Federal Rules of Evidence. The Court explained that Federal Rules imposed certain limits on the admissibility of such evidence. The Court also explained the trial judge's role in applying these limits. First, the trial judge examines the relevance and reliability of the evidence: "under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but must be `scientific' and reliable." Daubert, 509 U.S. 579, at 589, 113 S.Ct. 2786. The Court said that "[t]he primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify." Id. The Court noted that "In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity." Daubert, 509 U.S. at n. 9, 590, 113 S.Ct. 2786, (emphasis in original).
¶ 8 Daubert provided a list of factors for the trial judge to consider when determining the admissibility of evidence. They include: 1. Can the theory or technique be, or has it been, tested; 2. Has the theory or technique been subjected to peer review and publication; 3. Is there a "known or potential rate of error ... and the existence and maintenance of standards controlling the technique's operation;" and 4. Is there widespread acceptance of the theory or technique within the relevant scientific community. Daubert, 509 U.S. at 593-594,113 S.Ct. 2786.9 The inquiry is a flexible one, and focuses on the evidentiary relevance and reliability underlying the proposed submission, and not on the conclusions they generate. Id.509 U.S. at 595,113 S.Ct. 2786.
¶ 9 The evidence must also "assist the trier of fact to understand the evidence or to determine a fact in issue." This requirement "goes primarily to relevance." Daubert, 509 U.S. at 591, 113 S.Ct. 2786. Rule 702 thus "requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Daubert, 509 U.S. at 592, 113 S.Ct. 2786.
The Court then explained the trial judge's role:
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.
Daubert, 509 U.S. at 592-593, 113 S.Ct. 2786, notes omitted.
Daubert explained that preliminary questions concerning the qualification of a person to be a witness and the admissibility of evidence is determined by the court. Daubert, 509 U.S. 579, n. 10, 593, 113 S.Ct. 2786, citing, Federal Rule 104. We have a similar requirement in our Evidence Code at 12 O.S.Supp.2002 § 2105.
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