Twyman v. GHK CORP.

• Decision Date: 23 January 2004
• Parties: FLOYD TWYMAN, JOYCE TWYMAN, and ALAN TWYMAN, Plaintiffs/Appellees/Counter-Appellants, v. THE GHK CORPORATION, MOBIL OIL CORPORATION, and DOES I-V, Defendants/Third-Party Plaintiffs/Appellants Counter-Appellees, v. SCHLUMBERGER TECHNOLOGY CORPORATION and BAKER HUGHES COMPANIES, INC. d/b/a BAKER ATLAS, Third-Party Defendants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2004 OK CIV APP 53

93 P.3d 51

FLOYD TWYMAN, JOYCE TWYMAN, and ALAN TWYMAN, Plaintiffs/Appellees/Counter-Appellants, v. THE GHK CORPORATION, MOBIL OIL CORPORATION, and DOES I-V, Defendants/Third-Party Plaintiffs/Appellants Counter-Appellees, v. SCHLUMBERGER TECHNOLOGY CORPORATION and BAKER HUGHES COMPANIES, INC. d/b/a BAKER ATLAS, Third-Party Defendants.

Case Number: 98426, Cons. w/

Court of Civil Appeals of Oklahoma, Division III

Decided: January 23, 2004

Mandate Issued: June 17, 2004

Arthur W. Schmidt, Stephen M. Morris, Deena R. Tyler, MAHAFFEY & GORE, P.C., Oklahoma City, Oklahoma, for The GHK Corporation,

Gary W. Davis, Harvey D. Ellis, L. Mark Walker, CROWE & DUNLEVY, Oklahoma City, Oklahoma, for Mobil Oil Corporation,

Patricia A. Kirch, Ardmore, Oklahoma, David P. Hartwell, Oklahoma City, Oklahoma, Cregg Webb, Shawnee, Oklahoma, Scott McCardle, Edmond, Oklahoma, for Floyd Twyman, Joyce Twyman, and Alan Twyman

CAROL M. HANSEN, JUDGE:

¶1 In this action alleging "toxic contamination" of the Plaintiffs' Twyman dairy farm by oilfield operations under the control of Appellants/Counter-Appellees, GHK Corporation (GHK) and Mobil Oil Corporation (Mobil), GHK and Mobil appeal from trial court judgment in favor of Appellees/Counter-Appellants Floyd, Joyce and Alan Twyman (hereafter collectively Twymans). Twymans counter-appeal from the trial court's order granting remittitur of the jury's award.

¶2 GHK and Mobil conducted oilfield operations on and adjacent to Twymans' property, on which Twymans operated a dairy farm with approximately 170 cows. Beginning in 1995, some of Twymans' cows experienced health problems and some of those died.¹ They made efforts to determine the cause of the problems, but when the problems continued, Twymans disposed of the remainder of the herd.

¶3 Then, in 1998, Twymans filed suit against GHK and Mobil, claiming pollutants migrated from their oilfield "reserve pits", located on adjoining land, and contaminated the Twyman farm's water well. Twymans further alleged this contamination caused them to lose their dairy herd and rendered their entire farm worthless. Twymans sued for negligence, nuisance and deceit.

¶4 The case was tried to a jury. Because of the nature of the claims, the parties introduced testimony of a number of expert witnesses on the question of causation. That evidence was and remains the central issue in this case. The jury returned a general verdict damage award for plaintiffs in the amount of $7,250,000.00 on the claims of negligence and nuisance. No punitive damages were awarded. The jury apportioned negligence liability between GHK and Mobil at 19% and 81%, respectively. The jury found in favor of GHK and Mobil on the deceit claim and on Twymans' negligence claim of damages from a radioactive "logging tool" which allegedly had been lost in a drilling hole during oilfield operations.²

¶5 GHK and Mobil moved, alternatively, for judgment notwithstanding the verdict, new trial, or remittitur of actual damages to $250,000.00. The trial court's order on the alternative motions sets forth the court's rationale as to each motion in some detail. The trial court denied the motions for judgment notwithstanding the verdict and for new trial, finding that while Twymans' "case on liability hung by a thread", they "put on sufficient evidence of causation for the case to go to the jury."

¶6 The trial court did, however, order remittitur of actual damages to $950,000.00. In doing so, the court found the award of $7,250,000.00 was "undoubtedly outrageous, and beyond all measure unreasonable", and that the "award manifestly shows it was actuated by passion, prejudice, or partiality." The court further found, "giving [Twymans] every benefit of the doubt", the maximum damages to the land was $250,000.00, Twymans' own estimate, and the maximum value for the loss of the entire dairy herd was $200,000.00. Recognizing the award for nuisance was the "wild card" as far as determining damages,³ the trial court found $500,000.00 was a reasonable award.

¶7 The parties now appeal from the trial court's order on the post-judgment motions and the underlying judgment. GHK and Mobil, in separate but substantively similar briefs, first argue they were entitled to judgment notwithstanding the verdict because the trial court erred in admitting expert scientific testimony on causation⁴ which failed to meet the reliability standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113, S.Ct. 2786, 125 L.Ed.2d 469 (1993)(hereafter Daubert). Daubert was adopted for application in Oklahoma state court civil actions by Christian v. Gray, 2003 OK 10, 65 P.3d 591 (hereafter Christian).⁵

¶8 While the crux of the arguments by GHK and Mobil is that the lack of reliable and admissible expert evidence results in a fatal deficiency of evidence to prove their oilfield activities caused Twymans' injuries, a threshold question is what evidentiary rule applies. Twymans assert the Daubert standards should not be applied here because trial was concluded in 2002, before Christian adopted Daubert for use in Oklahoma civil actions. We find Daubert should be applied retrospectively.

¶9 Christian does not address either prospective or retrospective application of Daubert, nor have our appellate courts subsequently decided that question. We then look to our sister courts for guidance. The Louisiana Court of Appeals determined Daubert should be applied retroactively in Young v. Logue, 660 So.2d 32 (La.Ct.App. 4th Cir. 1995), a case with facts very similar to those here.⁶ Louisiana's basic rule of evidence respecting expert testimony tracks Federal Rule of Evidence 702, as does ours — 12 O.S. 2001 §2702 (hereafter §2702).

¶10 Louisiana adopted Daubert in State v. Foret, 628 So.2d 1116 (La. 1993). Daubert was decided before the trial in Young, Foret was decided after. As noted above, that is the same sequence as here, except here it was Christian which was decided after trial. The Young Court held Daubert must nonetheless be applied retroactively because Daubert and Foret announce a procedural rule of law. The Christian Court likewise found whether Daubert applied to civil actions was a new procedural question. Christian, 65 P.3d at 596, note 4.

¶11 The one distinction in Young and the case before us is that Louisiana statutorily provides that "[p]rocedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary." La.C.C. art. 6. This distinction does not, however, distinguish Young for persuasive effect because Oklahoma has, by common law, adopted a similar rule.

¶12 In Cox v. Brockway, Inc. (N.Y.), 1985 OK 80, 708 P.2d 1085, the Oklahoma Supreme Court approved retroactive application of a federal statute of limitation determined controlling by the United States Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed. 2281 (1983). In the absence of an express statutory limitation period applicable to "section 301(a) of the Labor Management Relations Act", the DelCostello Court adopted an analogous limitation period from "section 10(b) of the National Labor Relations Act." The DelCostello Court retroactively applied the limitation period to the cases before it.

¶13 The Court in Cox, at 1088, noted that "whether and to what extent a new rule shall be given retroactive effect is [a question] of judicial policy", and that "retroactive application of a newly announced rule is the traditional common law approach, rather than the exception." The Court further noted that in considering arguments against retroactive application, the court should consider (a) the novelty of the rule, (b) the purpose of the rule and whether it will be furthered by retroactive application, and (c) possible inequities from retroactive application.

¶14 As to novelty, adoption of the Daubert standards in Christian was not, as expressed in Cox, a "bolt out of the blue." Daubert was decided almost ten years before trial here and its possible adoption in the various states has been discussed widely during that period.⁷ The Oklahoma Court of Criminal Appeals, considering the same evidentiary statutes now before us, mandated use of Daubert for novel scientific evidence in state court criminal matters in 1995⁸, and has reexamined its holding in a number of cases.⁹ In Cities Service Co. v. Gulf Oil Co., 1999 OK 14, 980 P.2d 116, the Oklahoma Supreme Court, although not adopting Daubert standards, cited Daubert positively by footnote for the responsibility of trial courts as "the 'gatekeeper' of the evidentiary process to screen evidence, i.e., to determine its relevance and reliability."

¶15 In Christian, the court noted:

...a trial judge's decision to prevent improper testimony from an expert witness is not new to our jurisprudence. (citation omitted) Our Evidence Code currently recognizes the gatekeeping capacity of a trial judge, and Daubert is but a refinement of this role. Christian, at 598.

Nothing in Daubert or Kumho¹⁰ conflicts with our Evidence Code. Christian, at 600.

¶16 In Daubert, the Court observed that the previously used "general-acceptance" test for admissibility of novel scientific evidence, set forth in Frye v. United States, 54 App.D.C. 46, 47, 293 F.1013 (1923), had been displaced by the Federal Rules of Evidence. Christian, 65 P.3d at 597. The purpose of Daubert was to establish a framework in which the trial courts could, under the Federal Rules of Evidence, "ensure that any and all scientific testimony or evidence admitted is not only relevant, but must be 'scientific' and reliable." Daubert, 509 U.S. at 589.

¶17 In Christian, at 612, the Oklahoma Supreme Court determined Daubert would be the evidentiary standard in the matter before it and remanded it to the trial court to allow the parties to present evidence in support of and in opposition to the reliability of the offered expert...