Covel v. Rodriguez

• Decision Date: 31 January 2012
• Docket Number: No. 105,942.,105,942.
• Citation: 272 P.3d 705,2012 OK 5
• Parties: Carolyn Joan COVEL, Individually, and as Personal Representative of the Estate of H.K. Covel, Deceased, Tonni Covel, Toby Keith Covel, and Tracy Kaye Covel, Appellees, v. Elias A. and Pedro RODRIGUEZ, d/b/a Rodriguez Transportes and Republic Western Insurance Company, an Arizona Corporation, Appellants.
• Court: Oklahoma Supreme Court

2012 OK 5

272 P.3d 705

Carolyn Joan COVEL, Individually, and as Personal Representative of the Estate of H.K. Covel, Deceased, Tonni Covel, Toby Keith Covel, and Tracy Kaye Covel, Appellees,

v.Elias A. and Pedro RODRIGUEZ, d/b/a Rodriguez Transportes and Republic Western Insurance Company, an Arizona Corporation, Appellants.

No. 105,942.

Supreme Court of Oklahoma.

Jan. 31, 2012.

Certiorari to the Court of Civil Appeals, Div. IV.¶ 0 The Hon. Candace L. Blalock, district judge for McClain County, Oklahoma, denied appellants' motion for judgment notwithstanding the verdict, remittitur or new trial. The Court of Civil Appeals, Div. IV, reversed and remanded with directions to enter judgment for the appellants, finding that the appellees had failed to prove causation because their expert's evidence on causation was legally insufficient on Daubert grounds. We granted the appellees' petition for certiorari. We find that the testimony and conclusions of appellees' accident reconstruction expert were not objected to or challenged on Daubert grounds when admitted and were properly considered by the jury in rendering its verdict and by the trial judge in ruling on the motion for judgment notwithstanding the verdict.THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; MOTION FOR ORAL ARGUMENT DENIED; TRIAL COURT AFFIRMED.Russell L. Mulinix, Armando J. Rosell and Joseph K. Goerke, Mulinix Ogden Hall Andrews & Ludlam, P.L.L.C., Oklahoma City, OK, for Appellees.

Clyde A. Muchmore, Mark S. Grossman, Jan E. Singelmann, Crowe & Dunlevy, Oklahoma City, OK for Appellants.^*

EDMONDSON, J.

¶ 1 This is a wrongful death action in which plaintiffs asserted that defective brakes on the bus owned by Elias A. and Pedro Rodriguez (defendants) caused the death of their decedent, H.K. Covel. Covel was traveling northbound on the inside lane of I–35 when he lost control of his pickup truck and crossed the median and entered the southbound lanes of traffic. Defendants' bus was traveling in the outside southbound lane, and Covel's pickup and the bus collided almost head on. H.K. Covel died on the spot. Plaintiffs asserted that another driver, Sparlin, bumped H.K. Covel in the northbound lane of traffic and caused him to lose control of his vehicle. Defendants responded that their bus was not the cause of the accident and that their driver was confronted with a sudden and unavoidable accident. They maintained that even if their brakes were defective, such was merely a condition and not a cause of the accident. After a five-day jury trial, the plaintiffs were awarded $2.8 million dollars and $5,000.00 in punitive damages. The trial court denied defendants' motions for judgment notwithstanding the verdict (JNOV), remittitur or new trial. On appeal, the Court of Civil Appeals, with one judge dissenting, deemed the evidence of plaintiffs' expert, Dr. Mark Strauss, on causation to be legally insufficient on Daubert grounds and reversed with directions to enter judgment for the defendants.

¶ 2 Although acknowledging that the defendants had not objected to plaintiffs' expert's testimony or conclusions, and, finding that admission of the evidence was not fundamental error, the Court of Civil Appeals went on to hold that plaintiffs' expert's opinions were not based on scientific method or foundation and that his opinion on causation was ipse dixit.¹ On petition for certiorari, plaintiffs argued that the Court of Civil Appeals applied an erroneous standard of review and substituted its judgment for that of the jury. Plaintiffs argued that defendants' failure to object to the expert's testimony and conclusions waived any contentions that Dr. Strauss' testimony was not supported by proper methodology. Therefore, it was improper for the Court of Civil Appeals to disregard the testimony of their expert. We granted the plaintiffs' petition for certiorari.

¶ 3 The defendants argue that they are objecting to the sufficiency of the expert's evidence, which presents a question of law for the court. They state that, because engineering testimony rests upon scientific foundations, the sufficiency and competency of the expert's testimony must be scrutinized under Daubert and Kumho, which focus on whether there is a valid scientific basis for the expert's opinion.² They argue that the expert's opinions were not competent evidence absent an adequate scientific foundation under Daubert standards and were legally insufficient to prove negligence. They assert that where there is no evidence on a material issue such as causation, it becomes a question of law for the trial court rather than the jury.

¶ 4 The Court of Civil Appeals relied upon Christian v. Gray, 2003 OK 10, 65 P.3d 591. Christian did not involve expert testimony that was given during the course of a trial. There, the district court had granted defendants' motion in limine challenging the admissibility of testimony of plaintiff's expert witness and moving to exclude the expert's testimony on the cause of injury. We assumed original jurisdiction and decided, as a matter of first impression, that the procedures set forth in Daubert and Kumho Tire were appropriate for determining the admissibility of expert testimony in civil proceedings in this state. We said that Daubert requires a trial court to make a determination of the reliability of an expert's evidence when it is sufficiently challenged. 65 P.3d at 599, ¶ 11.

¶ 5 Defendants first raised the Daubert arguments in their motion for directed verdict after all the evidence was in. Defendants argued that there was no competent evidence of negligence and that it was pure speculation on the part of Dr. Strauss whether it would have made any difference that the bus' brakes were malfunctioning. Although defendants did not object in limine or contemporaneously to Dr. Strauss' opinions or conclusions regarding causation on Daubert grounds, they attempted, after the testimony was admitted, to use Daubert grounds to undermine the testimony.³

¶ 6 Federal courts have held that a defendant's failure to object to expert testimony admitted at trial forfeits its opportunity to subject the expert testimony to a Daubert challenge at the close of all the evidence. Macsenti v. Becker, 237 F.3d 1223, 1230–31 (10th Cir.2001), cert. denied, Becker v. Macsenti, 533 U.S. 950, 121 S.Ct. 2593, 150 L.Ed.2d 752 (2001), The Tenth Circuit, quoting from Christopher v. Cutter Laboratories, 53 F.3d 1184, 1191 (11th Cir.1995), stated that if the defendant believed the testimony was statistically invalid, it should have objected to the testimony, giving the witness the chance to explain his answers or to offer proof in support. Objecting would also have provided the district court with the opportunity not only to make a ruling on the accuracy and admissibility of the challenged testimony, but also to clarify that testimony. Although the trial judge is assigned the task of insuring that an expert's testimony rests on a reliable foundation and is relevant, Daubert does not mandate an inquiry questioning and challenging the scientific proffer absent a timely request by an objecting party. Macsenti v. Becker, 237 F.3d at 1231–32.

¶ 7 The Tenth Circuit concluded that where the Daubert objections to expert testimony were made at the close of the evidence, they were untimely and would be reviewed only for plain error. The court found that the expert's conclusion was not so manifestly unreasonable that its admission constituted plain error. 237 F.3d at 1234. In McKnight v. Johnson Controls, Inc. 36 F.3d 1396, 1407 (8th Cir.1994), the Eight Circuit held that the failure to object to an expert's trial testimony on the grounds that the expert lacked a scientific basis for his opinions precluded the court's consideration of that issue on appeal, absent plain error. They said that a trial court is not required to exercise its gatekeeping authority over an expert's testimony without an objection. The Ninth Circuit Court of Appeals rejected a defendant's Daubert challenge raised as an insufficiency-of-the-evidence argument rather than as a challenge to its admissibility. Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir.1996), cert. denied, Pacific Lumber Co. v. Marbled Murrelet, 519 U.S. 1108, 117 S.Ct. 942, 136 L.Ed.2d 831 (1997). The defendant there argued that, whether admitted or not, the scientific evidence failed the Daubert test because it was irrelevant and unreliable and therefore was insufficient to support the judgment. The Ninth Circuit reasoned that if permitted to challenge the reliability of the scientific evidence on Daubert grounds in the guise of an insufficiency-of-the-evidence argument, after not objecting at trial, the defendant would receive an unfair advantage. 83 F.3d at 1067.

¶ 8 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. Title 12 O.S.2001 2702 is “identical in substance” to Federal Rule 702.⁴ Christian v. Gray, 2003 OK 10 ¶ 6, 65 P.3d 591, 597. The reasoning of the federal courts cited above is in accord with Oklahoma jurisprudence. This Court has held that a party cannot, after introduction of evidence without objection, have it stricken on grounds that it is incompetent. State v. Planters Gin Co., 1935 OK 1090 ¶ 15, 175 Okla. 386, 52 P.2d 710, 713. The fact that evidence may be incompetent under one or more exclusionary rules of evidence does not destroy its probative effect if it is admitted without objection. Schell v. State ex rel. Hall, 1966 OK 174, 418 P.2d 690, 691. Incompetent evidence admitted without objection and without any effort to strike it must be given its natural effect. Sanley v. Wilkinson, 1924 OK 747, 107 Okla. 54, 229 P. 574, 576. Where no objection is made to testimony, the testimony is admitted and is properly before the trier of fact and must be considered when ruling on a demurrer to the...