Clark v. Continental Tank Co.

• Decision Date: 13 October 1987
• Docket Number: No. 62720,62720
• Citation: 744 P.2d 949
• Parties: Max A. CLARK, Appellant, v. CONTINENTAL TANK COMPANY, Appellee.
• Court: Oklahoma Supreme Court

Page 949

744 P.2d 949

1987 OK 93

Max A. CLARK, Appellant, v. CONTINENTAL TANK COMPANY, Appellee.

No. 62720.

Supreme Court of Oklahoma.

Oct. 13, 1987.

As Corrected Oct. 20, 1987.

Duke Halley, Woodward, for appellant.

W.D. Greenwood, Huckaby, Fleming, Frailey, Chaffin & Darrah, Oklahoma City, for appellee.

SUMMERS, Justice.

By this decision we hold that the Oklahoma Evidence Code did not change the long-standing rule that gave a trial court discretion as to whether an expert witness may be excepted from the rule requiring sequestration of witnesses. Upon review of other allegations of error as well, we affirm.

FACTS AND HISTORY

While working in the oil fields plaintiff was severely burned by a flash fire occurring while he was manually draining a piece of production equipment known as a heater/treater. He sued the defendant/manufacturer in products liability, claiming defective design and failure to warn. Defendant in response alleged alteration since manufacture, misuse, and voluntary assumption of a known risk. The jury trial resulted in a defendant's verdict. Plaintiff's appeal went to the Court of Appeals, which affirmed the lower judgment. We have granted certiorari to address the first impression procedural question.

I.

At the outset counsel for the plaintiff "invoked the rule," which is the phrase customarily used to require witnesses to remain outside the courtroom until they are finished testifying. In the law this is known as the rule of sequestration, or, more recently, the rule of exclusion of witnesses. Defendant's counsel, however, requested leave of the court to allow one of its expert witnesses to remain in the courtroom during the testimony of plaintiff and plaintiff's expert witness, as part of the basis for forming his own opinions. The court granted that request. Plaintiff claims this was error of a reversible nature in his quest on appeal for another trial.

The first statute in the evidence code requiring our analysis is 12 O.S.1981 § 2615, Exclusion of Witnesses:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. The court may make the order of its own motion. This rule does not authorize exclusion of:

1. A party who is a natural person; or

2. An officer or employee of a party which is not a natural person designated as its representative by its attorney.

Plaintiff argues that the statute forbids the presence of the expert in the courtroom other than during his own testimony, period. He urges that such legislative intent may be inferred by the fact that the Oklahoma Code in § 2615 omits what would have been a third exception to the rule and what remains as such an exception in the comparable Rule 615, Federal Rules of Evidence, namely:

3. A person whose presence is shown by a party to be essential to the presentation of his cause.

First let us look at the origins of the rule and its purposes. As a truth seeking device it seems to have been early discovered and long practiced ¹ going as far back as the days of Daniel and the story of Susanna. ²

Its purpose is described in Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 1347, 47 L.Ed.2d 592 (1976):

"The aim of imposing the rule on witnesses, as the practice of sequestering witnesses is sometimes called, is twofold. It exercises a restraint on witnesses tailoring their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid."

Acknowledging that there is always the possibility of perjured but consistent testimony being worked out in detail in advance, Professor Wigmore maintains:

"But when all allowances are made it remains true that the expedient of sequestration is (next to cross-examination) one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice." Wigmore Vol. 6 § 1838 (P. 463)

As universally accepted as this doctrine was in the common law, however, it was equally as widely held that the trial judge had discretion in authorizing individual exceptions to the rule. Wigmore, supra § 1841. For example, trial courts frequently allowed witnesses to remain in court where their assistance in management of the case was deemed essential, such as a key law enforcement officer, ³ or the complaining witness ⁴ in a crimnal prosecution. This set of exceptions found its way into the Federal Rule 615 above mentioned.

Another exception to the rule has widely been considered to be within the discretion of the trial court, and that is for an expert witness, testifying not as to the truthfulness of facts in controversy, but rendering an opinion based upon a stated or assumed set of facts. In fact such exception has become the general rule, according to Lewis v. Owen, 395 F.2d 537, 541 (10th Cir.Okl.1958)

"The general rule is that, notwithstanding a court order excluding witnesses from the court room during the presentation of evidence, it is within the sound discretion of the court to permit an expert witness to remain in the court room while other witnesses are testifying, and the court's action is reviewable only for abuse of discretion and prejudice to the complaining party." 88 C.J.S. Trial §§ 65-67; Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452, 117 S.E.2d 685; 85 A.L.R.2d 469, Anno. 478. This rule is recognized by the Oklahoma courts. Sharp v. Pawhuska Ice Co., 90 Okl. 211, 217 P. 214; Oskison v. Bagby, 172 Okl. 569, 46 P.2d 331.

In addition to the Sharp and Oskison Oklahoma Supreme Court cases therein cited, there is the earlier case of Colley v. Sapp, 44 Okl. 16, 142 P. 989 (1914) in which this court said "[I]t is within the discretion of the trial judge, 'when it does fair justice,' to permit a witness to give his opinion upon testimony which he has heard or read, when there is no material conflict in the evidence to which the witness is referred, and from which his opinion is to be formed. Wigmore on Evidence, § 681."

The expert witness exception to the rule is based on sound logic. He is not in court to say what happened or did not happen. He wasn't there. He may only give his opinion based upon "what if" this or that particular set of facts is true. The traditional way to elicit his opinion testimony was by asking him a hypothetical question, which question by law must be based on facts in evidence. Sooner Const. Co. v. Brown, 544 P.2d 500 (Okl.1975). Hypothetical questions were sometimes considered cumbersome ⁵ or subject to abuse, ⁶ and an alternative to the use of them was in letting the witness hear an uncontradicted portion of the testimony on which to base his opinion, or part of it. Sharp v. Pawhuska Ice Co., Oskison v. Bagby, Colley v. Sapp, all supra. The purpose of the rule in preventing collusion was not thereby defeated, since the expert witness must perforce base his opinion on facts that are in the record and before the trier of facts--how is one prejudiced if the expert hear them from the witness stand instead of from friendly counsel?

Disenchantment with the hypothetical question has resulted in such reform as § 2702 of the Oklahoma Evidence Code:

Testimony by Experts.

"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 in the form of an opinion or otherwise."

This section's last few words indicate that the expert need not testify in any one particular form, such as responding by opinion to a hypothetical question. ⁷ Which leads us to the following Code § 2703--Bases of Opinion Testimony by Experts:

"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." (emphasis added)

This is the final Code provision we must deal with in resolving the alleged error in allowing defendant's expert witness to listen to plaintiff and plaintiff's expert testify. It is clear that under the common law in Oklahoma such would have been allowed, absent abuse of the trial court's discretion. Only if the 1978 Oklahoma Evidence Code changed that part of the law could plaintiff be correct.

He cites § 2615 to show it has. Section 2615 says the court "shall order witnesses excluded." Does that not mean "all witnesses"? Firstly, it doesnt' say "all." Secondly, the word witness is subject to at least two meanings: (1) One who being present personally sees, hears or otherwise observes a thing; a beholder, spectator or eyewitness ⁸ and (2) persons sworn to testify for any purpose in a cause, ⁹ including, for example, an interpreter. ¹⁰ It is that first classification of witnesses that has been almost universally excluded from hearing the other witnesses, for the reasons as demonstrated by Daniel. The expert opinion giver, a member of the second classification of witnesses, has historically ¹¹ been allowed to remain in the courtroom or not within the discretion of the trial judge.

Reading the two sections together we conclude the law has not been so changed in this regard. If under § 2703, the facts or data upon which the expert bases his opinion "may be those perceived by ... him at ... the hearing" it cannot be error to allow him to perceive such facts by listening to the testimony. We cannot conclude that the legislature, either intentionally or unintentionally, altered that rule of procedure by adoption of the Evidence Code.

II.

Plaintiff on appeal takes exception to Instruction No. 10 which defined direct cause. Although plaintiff failed to specifically object to Instruction No. 10 he did timely offer his own requested Instruction No. 8 on the subject of direct...