Scruggs v. Edwards

• Decision Date: 13 February 2007
• Docket Number: No. 103,443.,103,443.
• Citation: 154 P.3d 1257,2007 OK 6
• Parties: Preston E. SCRUGGS, Rick C. Wheeler, Orlanda Arriaga, Kevin Hessman, Juan Jaimes, Joe Sumter, and Dewayne L. Bales, Petitioners, v. Honorable Ellen EDWARDS, Judge of The Oklahoma Workers' Compensation Court, Respondent, and Air-X-Changers, Pacific Employers Mutual Insurance Co., Real Parties in Interest.
• Court: Oklahoma Supreme Court

154 P.3d 1257

2007 OK 6

Preston E. SCRUGGS, Rick C. Wheeler, Orlanda Arriaga, Kevin Hessman, Juan Jaimes, Joe Sumter, and Dewayne L. Bales, Petitioners, v. Honorable Ellen EDWARDS, Judge of The Oklahoma Workers' Compensation Court, Respondent, and Air-X-Changers, Pacific Employers Mutual Insurance Co., Real Parties in Interest.

No. 103,443.

Supreme Court of Oklahoma.

February 13, 2007.

Application for Extraordinary Relief.

¶ 0 Claimants for workers' compensation benefits challenge the order of the Honorable Ellen Edwards, Judge of the Workers' Compensation Court, deciding that two 2005 amendments to the Workers' Compensation Act should be applied to all claims regardless of the dates of injury by the claimants. One amendment defines "objective medical evidence" as "evidence which meets the criteria of Federal Rule of Evidence 702 and all U.S. Supreme Court case law applicable thereto," and the second states that compensation for permanent disability must be supported by competent medical testimony which includes application Rule 702 of the Federal Rules of Evidence. The Court holds that the 2005 amendments are procedural and apply to claims pending at the time the amendments were effective.

ORIGINAL JURISDICTION ASSUMED; PETITION FOR EXTRAORDINARY WRIT OF PROHIBITION DENIED

Walt Brune, Northcutt, Clark, Gardner & Hron, Ponca City, OK, & Thomas D. Boettcher, Boettcher, Boettcher & Lobaugh, Tulsa, OK, for Petitioners.

Andrew D. Downing, Rhodes, Hieronymus, Jones, Tucker & Gable, P.L.L.C., Tulsa, OK, for Real Party in Interest.

EDMONDSON, V.C.J.

¶ 1 The sole issue in the case is whether U.S. Supreme Court opinions 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), apply to an Oklahoma workers' compensation claim that is based upon an injury which occurred prior to July, 1, 2005, the effective date of two amendments that year of the Workers' Compensation Act. We conclude that the retroactive application is proper.

¶ 2 In September 2001, Petitioners filed claims with the Workers' Compensation Court alleging that they were injured in July 2001 by exposure to arsine gas while employed by Air-X-Changers (Employer). In an Extraordinary Session in 2005 the Legislature amended 85 O.S. § 3. The amended statute states that:

17. "Objective medical evidence" means evidence which meets the criteria of Federal Rule of Evidence 702 and all U.S. Supreme Court case law applicable thereto;

85 O.S.Supp.2005 § 3(17).

The amendment was effective July 1, 2005. 2005 Okla. Sess. Laws c. §§ 9, 35, (First Extraordinary Session). In that same Session the Legislature amended 85 O.S. § 17 to state that: "Any claim submitted by an employee for compensation for permanent disability must be supported by competent medical testimony which shall be supported by objective medical findings, as defined in Section 3 of this title,...." 85 O.S.Supp.2005 § 17(A)(1), (emphasis added).¹ This amendment was also effective July 1, 2005. 2005 Okla. Sess. Laws c. §§ 19, 35, (First Extraordinary Session).

¶ 3 In January 2006, Employer filed a motion in limine² to exclude the testimony of Dr. H., Petitioner's medical expert. The motion was based upon amended § 3(17) and Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. By a consolidated order affecting seven proceedings before the Workers' Compensation Court, the Respondent determined that the 2005 amendment to 85 O.S. § (17) should be applied to proceedings regardless of the dates of the claimants' injuries. Application of amended § 3(17) requires application of Federal Rule of Evidence 702 and all U.S. Supreme Court case law applicable thereto. Supreme Court case law applicable to Federal Rule of Evidence 702 includes Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, and Kumho Tire Co., Ltd. v. Patrick Carmichael et al., supra. See the discussion of Rule 702, Daubert and Kumho in Christian v. Gray, 2003 OK 10, ¶¶ 6-10, 65 P.3d 591.

¶ 4 Petitioners characterized the trial judge's order as a certified interlocutory order and requested our review. This Court may review a certified interlocutory order by a district court affecting a substantial part of the merits of the controversy. 12 O.S.2001 § 952(b). This Court may answer a question of law certified "by a court of the United States, or by an appellate court of another state, or of a federally recognized Indian tribal government, or of Canada, a Canadian province or territory, Mexico, or a Mexican state." Scottsdale Ins. Co. v. Tolliver, 2005 OK 93, ¶ 2, 127 P.3d 611, 612, quoting, 20 O.S.2001 § 1602. No similar provision exists for review of certified orders from the Oklahoma Workers' Compensation Court. However, we decline to dismiss the proceeding.

¶ 5 This Court has original jurisdiction that "shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law." Okla. Const. Art. 7 § 4.³ Proceedings before The Oklahoma Workers' Compensation Court are subject to this Court's superintending control, and the Court has exercised this jurisdiction by extraordinary writs.⁴ By previous order, we recast this controversy from a proceeding seeking certiorari of an interlocutory order to an application for extraordinary relief and assumption of original jurisdiction. The parties were afforded an opportunity to submit briefs and a record conforming to a request for extraordinary relief. This matter is one of first impression. Recasting such a proceeding is procedurally proper, and assuming original jurisdiction serves the interests of judicial economy and clarifying new procedure for the Workers' Compensation Court.⁵ The Court assumes original jurisdiction.

¶ 6 An extraordinary writ proceeding is not the usual procedure for reviewing the correctness of an order adjudicating a motion in limine. Christian v. Gray, 2003 OK 10, ¶ 3, 65 P.3d 591, 596. The trial judge did not determine whether Dr. H.'s testimony satisfied the Daubert criteria, and that requested relief in the motion in limine appears to remain pending. Absent exigent and unusual circumstances not present here, this Court does not make first-instance assessments of applying legal principles to facts, but allows the parties to develop issues of fact and law in the trial court. Scott v. Peterson, 2005 OK 84, ¶ 27, 126 P.3d 1232, 1240; Christian v. Gray, 2003 OK 10, ¶ 26, 65 P.3d 591, 604. We thus do not reach the issue whether Dr. H.'s testimony satisfies Federal Rule 702, Daubert, and Kumho.

¶ 7 In Cole v. Silverado Foods, Inc., 2003 OK 81, 78 P.3d 542, this Court explained that the right of an employee to workers' compensation arises from the contractual relation between the employee and employer on the date of injury. Id. at ¶ 7, 78 P.3d at 546. The statute in effect on the date of injury forms a portion of the contract of employment and determines the substantive rights and obligations of the parties. Id. Thus, the general rule is that no subsequent statutory amendment can operate retrospectively to affect in any way the substantive rights and obligations which are fixed on the date of injury. King Mfg. v. Meadows, 2005 OK 78, ¶¶ 11-12, 127 P.3d 584, 589.

¶ 8 An exception to the general rule is that amendments relating solely to remedies and affecting only modes of procedure "are generally held to operate retroactively and apply to pending proceedings." King Mfg. v. Meadows, at ¶ 12, 127 P.3d at 589. We recently observed that "statutes relating solely to remedies and therefore affecting only modes of procedure are generally held to operate retroactively and apply to pending proceedings." Dean v. Multiple Injury Trust Fund, 2006 OK 78, n. 4, 145 P.3d 1097, 1103. In Cole we stated the following:

Legislation that is general in its terms and impacts only matters of procedure is presumed to be applicable to all actions, even those that are pending. Statutes that relate solely to remedies and hence affect only modes of procedure—i.e., enactments which do not create, enlarge, diminish, or destroy accrued or contractual rights—are generally held to operate retroactively and apply to pending proceedings (unless their operation would affect substantive rights).

Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 8, 78 P.3d 542, 546, (notes omitted, emphasis in original).

Thus, the question before us, like that in Cole, is whether the amended statutes represent more than a mere procedural reform and intrude upon substantive rights, specifically, the substantive rights of those claimants challenging the application of Daubert. Cole, at ¶ 11, 78 P.3d at 547. If the challenged amendments are substantive they must be given a prospective application and they have no effect upon the workers' compensation claims before us. Id. If the amendments are procedural they apply to the claimants.

¶ 9 In 2005 the Legislature made Federal Rule of Evidence, Rule 702, and U.S. Supreme Court opinions construing that Rule part of workers' compensation procedure. 85 O.S.Supp.2005 § 3(17). When the amendment to § 3(17) was created the version of Federal Rule 702 in effect, and now, states as follows.

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 thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. R. 702, 28 U.S.C.A. App, (West Ann.2001), (effective Dec. 1, 2000).

Federal Rule 702 was amended in 2000 in response to Daubert v. Merrell Dow...