COVEL v. Rodriguez

OK EL, Individually, Carolyn Joan COV and as Representative

Personal of the Estate of Covel, Deceased, Covel, Toby

H.K. Tonni Covel, Kaye Covel, Tracy Ap

Keith

pellees,

v. RODRIGUEZ, A.

Elias and Pedro d/b/a

Rodriguez Transportes Republic Company, an Ari

Western Insurance Corporation, Appellants.

zona 105,942.

No.

Supreme Court of Oklahoma.

Jan. Mulinix,

Russell L. Armando J. Rosell and Goerke, Joseph K. Ogden Mulinix Hall An- Ludlam, P.L.L.C., drews & City, Oklahoma OK, Appellees.

Clyde Muchmore, Grossman, A. Mark S. Singelmann, Jan E. Dunlevy, Crowe & Okla City, homa Appellants.* OK for EDMONDSON,J.

1 1 wrongful This is a death action in which plaintiffs asserted that defective brakes on the bus owned Elias A. and Pedro Rodri- (defendants) guez caused the death of their decedent, HK. Covel. Covel was traveling northbound on the inside lane of 1-35 when he lost control of his pickup truck and crossed the median and entered the south- bound lanes of traffic. Defendants' bus was traveling lane, in the outside southbound pickup Covel's and the bus collided almost head on. HK. Covel spot. died driver, Plaintiffs asserted that Spar- another lin, bumped HK. Covel in the northbound lane of traffic and caused him to lose control of his responded vehicle. Defendants their bus was not the cаuse of the accident * Only attorneys those are shown along who have filed an tion in appellate error and briefs entry counsel, appearance appeal. Although in the appearance did not enter an in the appeared peti- appeal. counsel there a valid scientific basis for their driver was confronted with a whether opinion.2 They argue expert's They accident

sudden and unavoidable maintained that even if their brakes were expert's opinions were not evi defective, merely a condition and such adequate dence absent an scientific founda five-day After a not a cause of the accident. le tion under Daubert standards and were trial, were awarded $2.8 They gally prove negligence. insufficient $5,000.00 punitive million dollars and dam- no evidence on a assert where there is ages. The trial court denied defendants' mo- causation, it becomes a material issue such judgment notwithstanding the ver- tions for question of law for the trial court rather than (JNOV), remittitur or new trial On dict jury. appeal, Appeals, Civil with one Court of Appeals upon 4 The Court of Civil relied judge dissenting, the evidence of deemed 10, Gray, v. 591. Christian 2003 OK 65 P.3d Strauss, expert, Dr. plaintiffs' Mark on cau- testimony expert did not involve Christian legally to be insufficient on Daubert sation given during that was the course of a trial. grounds and reversed with directions to en- There, granted the district court had defen judgment for ter the defendants. challenging motion in limine the ad dants' Although acknowledging T2 the de missibility testimony plaintiff's expert of of objected plaintiffs' had fendants not to ex moving expert's witness tо exclude the conclusions, and, testimony finding pert's testimony injury. on the cause of We as that admission of the evidence was not funda decided, original jurisdiction sumed as a error, Appeals mental the Court of Civil went impression, proce matter of first plaintiffs' expert's opinions on to hold that dures set forth in Daubert and Kumho Tire were not based on scientific method or foun appropriate determining were for the admis dation and that his on causation was testimony sibility expert proceed of in civil certiorari, ipse petition plain dixit.1 On ings in this state. We said that Daubert argued Appeals tiffs the Court of Civil requires a trial court to make a determina applied an erroneous standard of review and reliability expert's tion of the of an evidence jury. its for that substituted sufficiently challengеd. it when 65 P.3d at argued that Plaintiffs failure to 599, 11. object expert's testimony and conclu sions waived contentions that Dr. ¶ 5 Defendants first raised the Dawu- testimony supported by Strauss' was not arguments in bert their motion for directed Therefore, proper methodology. it was im verdict after all the evidence in. Defen was proper Appeals for the Court of Civil to argued dants there was no disregard testimony expert. of their We negligence pure evidence of it was granted plaintiffs' petition for certiorari. speculation part on the of Dr. wheth Strauss er it have made difference that would argue T3 The defendants are malfunctioning. Although bus' brakes were objecting sufficiency expert's evidence, object did defendants in limine or con presents question which of law that, temporaneously oрinions to Dr. They engi for the court. Strauss' state because regarding neering testimony upon conclusions causation on Daubert rests scientific foun dations, sufficiency grounds, they attempted, testimony competency after the admitted, expert's testimony grounds was Daubert must be serutinized use testimony.3 undermine the Kumho, under Daubert which focus on Ipse resting 1. dixit is a bare assertion chief, In their brief defendants assert authority pretrial of an individual. Black's Law Dictio- raised certain issues in motions in (4th 1951), nary, Gray, arguments 961 ed. Christian v. 2003 limine. The defendants' in their first repair in limine directed to: rec- motion were 10, 591, 607, OK fn. 19. bus; ords for the commercial driver's license and issues; proposition commercial vehicle v. Pharmaceuticals, Inc., Daubert Merrell Dow 579, 2786, opinions regarding testimony Dr. Strauss' 509 U.S. 113 S.Ct. 125 L.Ed.2d 469 eyewitness had no be (1993) reliable basis should Co., and Kumho Tire Ltd. v. Patrick Carmi- excluded; proposition and the that Dr. ‍​‌​‌‌‌​‌​​‌​‌‌​​​​‌​‌‌​​​‌‌​​​‌‌‌‌​‌​​​‌‌‌​‌​​‌​‍Strauss' al., 137, 1167, chael et 526 U.S. S.Ct. 143 119 (1999). test video should be excluded. In Okla- skid L.Ed.2d 238

709 plain They error. courts have held that a defen absent said that a trial Federal testimony required object expert gatekeep- court is not to exercise its failure to dant's opportunity ing authority expert's over an testimony trial forfeits its admitted at objection. testimony to a Daubert without an The Ninth subject Circuit Appeals rejected challenge at of all the evidence. Court of a defendant's Dau- the close 1223, Becker, challenge insufficiency-of- 1230-31 bert raised as v. 237 F.3d Macsenti Macsenti, Cir.2001), denied, (10th argument cert. Becker v. the-evidence rather than as a chal 950, 2593, lenge admissibility. 121 S.Ct. 150 to its 3 U.S. Marbled Murrelet 53 Babbitt, 1060, (9th Cir.1996), v. Circuit, 83 F.3d 1066 (2001), quot Tenth L.Ed.2d 752 Laboratories, denied, ing Christopher from v. Cuttеr cert. Lumber Co. v. Marbled Pacific (11th Cir.1995), F.3d 1191 stated Murrelet, 519 U.S. S.Ct. (1997). if defendant believed the L.Ed.2d 831 The defendant there invalid, that, not, statistically argued it should have ob whether admitted or testimony, giving

jected to the the witness scientific evidence failed the Daubert test explain his answers or to offer because it the chance to was irrelevant and unreliable and Objecting proof support. support would also have therefore was insufficient judgment. provided opportu the district court with the The Ninth Cireuit reasoned that only ruling permitted challenge nity reliability to make a on the aceu- scientific on racy admissibility challenged grounds tes evidence Daubert in the timony, clarify testimony. but also to guise insufficiency-of-the-evidence of an ar trial, gument, objecting after not at Although judge assigned the trial is the task de fendant would advantage. receive an unfair insuring expert's testimony rests of that an 83 F.3d at 1067. relevant, and is on a reliable foundation inquiry ques does not mandate an Daubert may Federal court be decisions tioning challenging proffer the scientific persuasive examined for value when by timely request objecting par an absent construe federal evidence rules with lan Becker, ty. Macsenti v. 237 F.3d at 1231- guage substantially similar to our 32. evidence statutes. Title 12 O.S.2001 2702 is ¶ 7 The Tenth Cireuit concluded that "identical in substance" to Federal Rule objections expert the Daubert to testi where 6, Gray, 702.4 Christian v. 2003 OK 10 65 evidence, mony 591, were made at the close of the reasoning P.3d 597. The of the federal untimely were and would be reviewed cited courts above is in accord with Okla jurisprudence. homa This Court has held only plain error. The court found that cannot, expert's manifestly conclusion was not so party that a after introduction of objection, unreasonable its admission constituted evidence without have it stricken plain McKnight error. at 1234. In grounds incompetent. 237 F.3d on it is State v. Controls, 1396, Co., ¶ 15, v. Johnson Inc. 36 F.3d 1407 Planters Gin 1935 OK 1090 175 (8th Cir.1994), Eight Cireuit held that the Okla. 386, 710, 52 P.2d 713. The fact that object expert's testimony failure to to an trial may incompetent evidence be under one or grounds exclusionary on the lacked a more rules of evidence does not opinions precluded destroy probative scientific basis for his its effect if it is admitted appeal, objection. of that court's consideration issue on without Schell v. State ex rel. homa, scientific, upon party aggrieved by provides it is incumbent 4. 12 O.S.2001 2702 an order in limine to raise the issue at sрecialized knowledge technical or other will as trial, appropriate during by time either ob sist the trier of fact to understand the evidence or jecting challenged when the evidence or testimo issue, qualified to determine a fact in a witness ny by making proof is admitted or an offer of skill, expert by knowledge, experience, as an Imler, the excluded matter. Middlebrook v. Ten training may testify or education in the form of Kugler, M.D.'s, ¶ 12, & Inc. 1985 OK 66 713 ny opinion an or otherwise. Section 2702 was 572, trial, P.2d 579. At defendants did § 2009, 228, amended Laws ch. 18, eff. Nov. by reurge objection their to Dr. Strauss' skid test 1, 2009, and remains ‍​‌​‌‌‌​‌​​‌​‌‌​​​​‌​‌‌​​​‌‌​​​‌‌‌‌​‌​​​‌‌‌​‌​​‌​‍identical in substance trial video. The court excluded the video after 702, U.S.C.A., Federal Rule 28 Federal Rules of counsel conducted a Daubert voir Evidence. dire of Dr. Strauss about the video.

Hall, 174, 690, 1966 OK 418 P.2d In 691. object, appeal, the error is waived on in the objec evidence admitted without absence of fundamental error. tion and without effort to strike it must ¶ 10 Fundamental error is error given Sanley be its natural effect. v. Wil compromises integrity pro kinson, 747, 54, 1924 OK 107 Okla. 229 P. ceeding degree to such a that the error has a 574, objection 576. no Where is made to rights substantial effect on the of one or testimony, testimony is admitted and is parties. Forty-Sec more of the Sullivan v. properly before the trier of fact and must be 801, 48, Corp., ond West 1998 OK 961 P.2d ruling when on a demurrer considered agree Ap with the Court of Civil We Co., Shultz, evidence. D & H Inc. v. peals that there was no fundamental error. 71, 821, OK 579 P.2d 823-24. This Court opinions The admission of Dr. Strauss' object has held that where a fails causation, object where defendants failed to questions opinion that elicit evidence and оpinions, seriously those did not affect the evidence, fails to move to strike such integrity fairness the trial Dr. privileged give consideration to the testimony Strauss' manifestly was not so un evidence, notwithstanding reasonable that its admission constituted fun may properly witness not have quali been may damental error. Defendants have had a give opinion. fied to Nat. Fire Pacific strategy nevertheless, objecting; for not Woods, 824, Ins. Co. v. 1963 OK 381 P.2d opinions objected 829, citing Superior Griffin, Oil Co. v. stand as evidence to be considered OK jury, ruling the trial notwithstanding motion for ¶ 9 Our provide rules evidence verdict. expert may testify by opinion or infer ¶ 11 In ruling on a motion for give ence and pre reasons therefor without verdict, judgment notwithstanding the the underlying vious disclosure of the facts or trial considers all evidence favorable tо data, required underly unless to disclose the nonmoving party disregards the all evi ing facts or data on cross-examination or dence favorable to the movant. That is also the court. 12 0.8.2011 2705.5 It is the re our standard on judge's review of the trial sponsibility opposing party to estab Publications, ruling. Computer Inc. v. Wel expert beyond lish that the expertise is his ton, ¶ 6, 732, 2002 OK 50 735. We or, general expertise, if within his that he jury must affirm a verdict if there is has provide proper failed to basis or reasonably tending evidence to opinions. foundation for Allowing it, support evidence which is relevant and objections defendants to raise Dawbert material to the issue to be determined. Jos. expert's testimony guise in the of an in Coy Younger, A. Co. v. 1943 OK sufficiency-of-the-evidence argument after Okla. weigh 136 P.2d 890. do not We testimony has been admitted without ob the evidence. consider all We the evidence jection deprives expert opportuni verdict, tending support together with ty supporting proof,. to offer other See every it, reasonable inference from and must Murrelet, Marbled 83 F.3d at 1067. Dau affirm unless there is an entire absence of bert a gatekeeping creates function for the proof on a material issue. regarding court the admission of an evidence, expert's when challenged. It does qualified objection Dr. Strauss without enable a expert's allow the tes the fields of accident recon timony struction, attempt to be admitted and then engineering biomechanical and hu discredit that grounds on Daubert man factors. Dr. Strauss has a commercial after all By failing the evidence in. is drivers license with air brake endorsement. § Underly- 2705. Disclosure of Facts or Data data, unless the court otherwise. The requires ing Expert Opinion expert may required event be to disclose expert may testify underlying The in terms of facts or data on cross-examina- give inference and reasons therefor without tion. previous underlying disclosure of the facts or upon Dr. Strauss relied seene photographs Trooper Dennis Dickens testified that there highway patrol taken and reviewed was very one distinct black skidmark from survey data of prepared the accident with the right bus, front tire of the going off to tool, Total surveying Station police reports, right from the outside Trooper lane. statements, witness deposition testimony, Dickens testified that there should have been specifications pickup truck and main- mark, more than one black since the bus did tenance manual for the bus. Dr. Strauss not have an antilock braking system. Dr. also examined maintenance records for the Strauss testified that the brakes on the two bus, including repair ticket from Jefferson rear axles should up have locked on both the Tulsa, Lines in dated more than four months left right they sides if were properly prior accident, which stated that adjusted good and in condition. He testified bus tag "needs steer and urgently." brakes properly adjusted bus brakes there He testified that maintenance records are an would be more uniform skids on right both important piece of information from a recon- left; the air working brakes were standpoint. struction explained He steer and properly, and the driver stepped on the tag brakes for the and advised them brakes all way, one should see long two that all brakes, three axles on the bus have skidmarks on both right and left sides of for a total of six brakes. He used a model of bus; and because the bus was fully portion of an air brake similar to that of loaded it should have up locked easier so that bus to demonstrate how air one should "definitely see skids." Tr. Vol. brakes work and to show how air brakes are p. 232. single preimpact skidmark left inspected, checked or and how can be by the bus was tire, from the right front adjusted. He regular testified that air brake which he said should not have up. locked maintenance important prevent various preimpact single skidmark also veered malfunctions, kinds of training for the right, toward the which Dr. Strauss attrib- commercial driver's requires license daily uted to brake imbаlance. The lack of expect- pretrip inspections knowledge of how to ed skidmarks and pull right indi- check the air brakes during such an inspec- cated to Dr. Strauss that the brakes were not tion. He deemed anyone it critical for who is working. testified, The bus driver by deposi- operating a vehicle with air brakes to under- tion, that he hit the brakes but did not steer stand how work and how to check them to the right. Other tire marks were laid fail, because air brakes can just not from postimpact, down plaintiffs' which expert at- bad, being but being adjusted from not prop- tributed to the pickup's they tires as were erly. Evidence defendants, elicited from the pushed by forward the bus. Pedro and Rodriguez, driver, Elias and the Perez, David showed that pretrip inspec- no ¶ 14 Dr. Strauss testified that the front tion of the bus was conducted and they that passenger side of pickup Covel's collided with did not have commercial drivers' licenses. right the front side of the bus. The collision The driver by deposition testified that he had resulted in an intrusion of engine Covel's into not any specialized received training for driv- passenger the compartment of pickup and ing a bus. Elias Rodriguez stated that he the intrusion of Covel's vehicle into right the had the repaired Mexico, brakes in but there front side of the bus. Dr. Strauss testified repair were no receipts tickets or showing intrusion is thing the worst that can repairs were done. happen in an accident. pushed The bus all ¶ Photographs the taken engine at the contents of the compartment scene of the into by accident Highway passenger the Trooper compartment Patrol Bran "you аnd can't don depicted Schneider single survive preimpact that." Tr. p. Vol. 256. Dr. by skidmark the bus. Highway Strauss Patrol testified that a bus with properly Trooper Douglas George working measured brakes would have enough slowed so preimpact skidmark by left the bus at 98 feet the collision would not have been head- long. He testified that unless there is an on and the bus would have hit the truck bed braking antilock system, generally you will rather than the truck cab. If the truck bed see skidmarks left each of instead, the wheels. had been hit passenger compart- the bus and not the left tires of were from intact, tremendous "so it's a be would ment pickup. opinion from the Dr. Id. It was Strauss' difference." stop sooner had been able if the bus opinions of the and T17 The conclusions head-on, Mr. Covel not the collision and Both ex- were in cоnflict. expert witnesses died in the accident. not have would electronic upon Total Station perts relied the accident scene survey measurements of qualified as an By being scene. Nei- taken at the photographs and reconstruction, and biomechanics in accident expert examined the bus' brakes. When ther factors, qualified to Dr. Strauss was human jury to conflicting, it is for the the evidence is on his conclusions based opinions and give Considering all evidence favorable decide. fields. experience those training nonmoving party disregarding all for his expert states the reasons Where movant, we cannot favorable to evidence conclusions, they ipse are opinions and judge's denial of defen- error in the trial find expert's testi of an The factual basis dixit. notwithstanding for dants' motion credibility of the goes to the mony generally plaintiffs did not contend the verdict. opposing can attack accident; bus caused the that defendants' Dr. on eross-examination. factual basis faulty contended that brakes plaintiffs approximately four testified Strauss injury to Mr. Cov- in a more severe resulted not cross-exam defendants did hours. The el; i.e., introduced his death. foundations him the scientific ine about operating bus was evidence that defendants' opin underlying his conclusions methods ur- highway brakes that needed ions. gent repair; that the brakes were work- argue Strauss did not 16 Defendants have; the chance of ing as should recon "typical" accident perform injury present if a collision is head- greater the effect to determine struction calculations vehicle; occurs into the on and intrusion braking the actual malfunction on of brake impact bus caused intrusion with the They argue that their efficiency of the bus. engine compart- pickup's into cab the bus' reflected that expert's calculations ment; an intrusion was not surviv- such acceptable within performed well brakes able; required owners were and that bus only had the bus driver standards pretrip inspections law to conduct federal Defendants' ex to react. seconds which properly adjusted, but keep the brakes Pfeiffer, made measurements pert, Mr. so, failure was failed to do and such using geometry, the road scene and accident It is cause of Mr. Covel's death. the direct measuring sys electronic Total Station en- that a motor carrier would foreseeable that the bus had Mr. Pfeiffer testified tem. wherein it needed to have counter a situation approxi collision and left prior to skidded fail- good working order and that brakes right mately of skidmarks from the 98 feet stop in might result in failure to ure to do so that Mr. Pfeiffer testified front wheel. time, injuries resulting in more severe speed approximate of had slowed from a bus accident. The fatality in the event of an pickup had ly mph mph, and that the to 51 proving that had the burden of plaintiffs mph. It was speed to a of about 62 slowed brakes malfunctioned and defendants' have avoid the bus could not probably than not the malfunction was more collision, it could not have slowed ed Covel's death. Whether the cause Mr. driver could not have and that the faster and, negligent negligent, were defendants than he did. On eross- fаster reacted reasonably consequences could whether examination, expert agreed that defendants' anticipated, were foreseen or have been only one impact there was up point to the jury jury to decide. The questions for the veered to the and that it visible skidmark compe- plaintiffs and there is for the found that, expert maintained right. Defendants' jury's support to verdict. tent evidence right, shape pull to the of the due {18 Appeals did not The Court of Civil right have steered to the driver must bus appellate con- the defendants' other address realizing it. Defendants' without prod- was the jury's verdiet marks tention post-impact tire maintained that passion prejudice uct of unfair and pertained subsequent because: claims to conduct to plaintiffs' appеaled jury during counsel the accident. Each of those defendants arguments punish plaintiffs achieved dismissal or closing the defendants settled with prior award; plaintiffs to trial. The asked the trial damages with a substantial actual judge to reconsider son, Keith, the decision to bifurcate. country singer Toby decedent's objected grounds The defendants siblings improperly and his were named as anticipated trying damages had not with plaintiff's plaintiffs; unfairly counsel con- liability ‍​‌​‌‌‌​‌​​‌​‌‌​​​​‌​‌‌​​​‌‌​​​‌‌‌‌​‌​​​‌‌‌​‌​​‌​‍"celebrity and because of the issue." nationality the defendants' Mexican trasted concern, expressed The court but stated that against patriotism the asserted of the dece- celebrity was a fact of Toby the case and that son; judge's dent his famous the trial courtroom, Keith be in would so the decision not to bifurcate the trial meant that celebrity issue would have to be dealt with in Toby family Keith and the other members any event. We do not find that there was prejudicial testimony during could introduce any abuse of part discretion on the of the phase the initial though trial even judge in reconsidering ultimately not relevant negligence was deciding not to bifurcate the trial. causation; jurors permitted were to learn company the defendants' insurance ¶ 21 complain Defendants plain defendant; a named repeated- the trial court counsel, tiff's during closing argument, urged ly ability pres- constrained the defendants' jury to award a substantial verdict case, theory ent their permitting while order to companies make sure that "op bus range Dr. Strauss far and wide in his properly erate County, McClain in Okla opinions; and the trial did not instruct homa and in the United States." Defendants jury properly objected, and the trial court admonished the on "how to determine negligence whether defendants was the disregard argument of counsel re garding punishment of the bus or insurance cause of the decedent's death." company. complain Defendants also of: ¶ 19 The defendants maintained that plaintiffs' description during opening state Covel children improperly joined were ments about the defendants' bus route to plaintiffs only proper plaintiff Mexico; plaintiffs asking highway patrol Covel, personal was Mrs. representa as the troopers language about obstacles faced with estate, pursuant tive of the to Oklahoma's passengers; asking questions the bus's about statute, wrongful death 12 O.S. 1054.6 The origins ancestry Rodriguez any objection join- defendants did not file defendants; Mrs. Covel's remarks about der of the Covel children as before finding liquor Mexican at stickers the acci the trial. In Mitchell v. Amerada Hess scene; plaintiffs' dent compari counsel's 15, 638 Corp., 441, 446, 1981 OK 149 P.2d son of the compliance with Mexi we said that the existence of an excessive regulations can noncompliance versus party plaintiff is not reversible error when certain regulations. They U.S. assert that issue is not raised before the issues are prejudicial references assured that the joined party on the merits and the real defendants would be seen as Mexican bus appears interest plaintiff. as a transported owners who people Mexican plaintiffs originally sued goods back and forth from Oklahoma to Mex defendаnts, other including several ico, the driver perceived while Mr. Covel would be anas alleged of the car bumped have Covel's patriot avowed country who had served his in vehicle in the prior northbound lanes to the military the and had country sing fathered a judge's accident. The trial initial decision to ing superstar patriotic songs. and writer of upon bifurcate request was made of one of The object defendants did not ques to the parties plaintiffs' those because several of They the tions or argue object- statements. that when, § may state, 6. 1054. Action for being death-Who sue a resident of this no personal representative appoint- In all is or been cases where the has residence of the ed, provided may whose death has been the action in caused as sеt in the said section forth widow, preceding brought by the section of be this article is at the the or where there is no widow, any territory, time of his death in other state the next of kin of such deceased. 714 highlighted complain Defendants that their would have

ing to each comment jurors. requested supplemental in minds of the instruction on the remarks the causa They that it was incumbent on the given. contend The tion was not defendants wished that, court to "rein in" the whenever trial jury even if all the to instruct they line." "crossed the true, negligent complained of were acts jury against the defendants could find ¶ 22 Attorneys have wide latitude they negligence unless found that their was statements, subject to opening closing in proximate injuries. Mr. cause of Covel's control, and limitation of the court's proposed The instruction statеd: scope arguments is within the trial v. Wal-Mart court's discretion. Lerma proximate injury The cause of an must Stores, Inc., 84, 880, P.3d 2006 OK 885. the efficient which in be cause sets motion jury disregard An admonition to the leading chain of circumstances improper argument any prejudice cures injury. negligence complained If the of thereby might be created since it cannot be merely furnishes a condition which the jury of law that presumed as matter injury possible subsequent was made and a given by fail to the admonition will heed independent injury, act caused the then Imler, Tenny court. Middlebrook v. & Ku the existence of such a condition is not the M.D.'s, Inc., 66, 572, gler 1985 OK proximate injury. cause of the alleged In order for the of misconduct argument jury plaintiffs responded requested in a The counsel to effect appear it reversаl of must instruction is not a uniform instruction and prejudice substantial resulted therefrom and unnecessary because the standard in- thereby jury was influenced negligence struction on the elements of suffi- party complaining. material detriment ciently jury instructs on causation. Daniel, Turnpike Authority Oklahoma v. Plaintiffs contend that the instruction does 7, 1965 OK 398 P.2d 518. That the fit the facts because there was no subse- transporting pas defendants' business was quent independent negligence act after the of sengers to and from Mexico was a fact in the defendants. Toby case. That Keith is the son of the neg 24 Defendants also contend that the jury decedent was a fact in the case. The ligence per jury se instructions to the about hearing was aware of these facts. At the regulations that violated should JNOV, defendants motion for the trial remarked given not have been because were not that, although initially she was concerned applicable in Jury to the issues the case. celebrity having about the issue and an inter styled Negligence Instruction No. 9 was Per defendants, preter for the she felt that it was Regulation. Se-Violation of Statute or This problem not a in the conduct of the trial instruction informed the addition everyone because conducted in a themselves duty ordinary to exercise care there professional manner and tried to avert statute, imposed by are also duties prejudice being part kind of of the trial.7 We person found violated one have reviewed the matter and we conclude following regulo- statutes or of un statements counsel were not so of federal tions, аnd that the violation was the direct fairly prejudicial jury's as to render the ver injury, cause then such violation in product passion prejudice. dict a person negli and of itself would make such object defendants did not or move for a added). gent. (emphasis Instruction 9 listed Alleged prejudicial mistrial. remarks statutes force effect the State of preserved counsel are not for review in this Oklahoma at the time of the occurrence that objected Court to at the time the unless licensed; Glenn, require commercial chauffeurs to be statements are made. Bateman v. OK P.2d defen prohibit crossing oppos the median into ing driving dants are deemed to have taken their traffic lanes when on divided jury. highways prohibit driving speed chances and that at a Tr., 7. April p. -Required

in Knowledgeand Skills for CDL mph excess of 70 on a four-lane divided highway. applicants; license requirement -Road test for driver of com- styled 25 Instruction 10 was Negligence vehicles; mercial motor Per Se-Violation of Statute Regulation or -Equipment, ‍​‌​‌‌‌​‌​​‌​‌‌​​​​‌​‌‌​​​‌‌​​​‌‌‌‌​‌​​​‌‌‌​‌​​‌​‍inspection and use.8 and listed certain federal motor carrier safe- ty regulations in force and effect at the time Instruction No. 9 applicable set out laws of the occurrence: plaintiff's decedent as well as to the defen- dants. Instruction 10 Standards;

-Commercial Driver's set out License the federal regulations Requirements applicable and Penalties to commercial vehicle operators and drivers. -Qualifications Longer Drivers and (LCV) Combination Vehicle It duty is the Driver In- of the trial structors; give court to instructions that accurately re- provided, (c) pertinent Instruction No. 10 part: Air Except provided brake skills. as in Sec. 393.95, applicants all shall demonstrate the fol- TITLE 49-TRANSPORTATION lowing respect inspection skills with oper- and CHAPTER III FEDERAL MOTOR CARRIER ation of air brakes: ADMINISTRATION, SAFETY (1) Pre-trip inspection Applicants skills. shall DEPARTMENT OF TRANSPORTATION necessary demonstrate the skills to conduct a Part 383 Commercial Driver's License Stan- pre-trip inspection which ability includes the to: dards; and Penalties (1) Requirements verbally Locate identify and oper- air brake Purpose Scope: Sec. 383.1 ating devices; monitoring controls and (a) purpose part help of this is to reduce or (ii) Determine the motor sys- vehicle's brake accidents, prevent fatalities, truck and bus tem proper adjustments condition for injuries by requiring single drivers to have a system air connections between motor vehicles commercial by motor vehicle secured; driver's license and properly have been made and disqualifying operate drivers who Sec. commercial 393.31 Road Test. (a) person motor vehicles an unsafe A manner. shall not drive a commercial motor qualifications Sec. 391.11 vehicle General unless successfully has drivers. first he/she com- (a) pleted person a A road test and shall has been not drive a issued a commercial motor certifi- cate of driver's road test in qualified vehicle unless accordance is with this he/she to drive a com- section. Except mercial provided motor vehicle. as (b) The given road test shall be the motor Sec. 391.63, a motor carrier shall not require person However, carrier designated by or a it. a permit person а to drive a commercial motor driver who is a given motor carrier must be a person qualified vehicle unless that is to drive a person test a other than himself/herself. commercial motor vehicle. given by person test shall be who is (5) currently has a valid commercial motor to evaluate and person determine whether operator's vehicle only by license issued one who takes the test has demonstrated that he/she jurisdiction. State or capable operating the commercial motor (8) successfully completed Has a driver's road vehicle, equipment, and associated that the mo- test and has been issued a certificate of driver's assign tor carrier intends to him/her. 391.31, road test in accordance with Sec. or has (c) The road test must be of sufficient duratiоn to presented operator's license or a certificate of person enable gives who it to evaluate the road test which the employs motor carrier person skill of the handling who takes it at accepted equivalent has him/her to a road test commercial motor vehicle, and associated equip- in accordance with Sec. 391.33. ment, the motor assign carrier intends to Required Sec. 383.113 skills minimum, person As him/her. who takes (a) Basic vehicle applicants control skills. All tested, the test must be operating type while possess for a CDL must and demonstrate basic of commercial motor vehicle the motor carrier motor vehicle control skills for each vehicle him/her, assign intends to skill at his/her group operates which the expects driver pеrforming following operations: each of the operate. These ability skills should include the (1) pretrip inspection required by Sec. start, stop, and to move the vehicle forward subchapter. 392.7 of this and backward in a safe manner. Equipment, Sec. inspection 392.7 and use. (b) driving applicants Safe skills. All for a CDL No commercial motor vehicle shall be driven possess must driving demonstrate the safe unless the driver following is satisfied that group. skills for their vehicle These skills should parts order, good working accessories are in proper methods, include visual appropri- search nor shall driver fail to use or make use of signals, speed ate use of control for weather and parts such and accessories when and as needed: conditions, traffic ability position the mo- including Service brakes, trailer brake connec- correctly tor changing vehicle when lanes or tions. turning. (hand) Parking brake.

{16 con- defendants were persuaded that the The not apply to the issues. flect the law and presenting their court in jury by the trial giving in instruc strained reversible error test of theory to the jury was misled of the case. whether tions is it rendering verdict than a different extent of Defendants assert alleged if errors have rendered would jury that improperly informed the plaintiffs v. Ford Motor not occurred. Johnson had a Company was Insurance Republic Western Co., 92-93. The 2002 OK. parties in the case. The named defendant negligence, jury on judge trial instructed collision, that, of the stipulated at the time causation, negligence comparative direct Company pro Insurance Republic Western (whiсh contributory negligence), included defendants, liability to the insurance vided se, accident. negligence per and unavoidable as Rodriguez Transportes, doing business as jury their decision The was instructed stipulations were required per The statute. possi and not probabilities on must be based trial, jury beginning of the to the at the read bilities, guess upon speculation or and not We objection from the defendants. without jury instructed on con work. The was also merit. argument to be without find this causes, proof the burden current conclude weight of evidence. We trial agree with the 129 We of law prejudicial no misstatement there was proceed- in the trial irregularity no there was in the instructions and no fundamental error damages awarded were not ings and that the jury negligence per was given on se. appear to have been excessive and do on causation.9 We three times instructed passion prejudice. given as a result of refusing in the trial did not err find jury award plaintiffs $1.7 asked requested on give the defendants' instruction jury plaintiff. The award- per million dollars causation. considerably find no error in the ed less. We argue that the trial court 1 27 Defendants motion for trial court's denial of defendants' ability "repeatedly constrained Defendants' trial, remittitur or JNOV. new case, theory present their while appeal record on was trans- 1 30 After the range far permitting Dr. Strauss to and wide Clerk, the de- Supreme Court mitted argument opinions." We find this his to direct transmission fendants filed a motion merit. The defendants did not be without inclu- depositions trial court for of redacted opin- object to Dr. Strauss' Ruling appeal. on on sion the record parties would ions about what witnesses reviewing court motion was deferred might or what have been able to observe May The Court of by order dated lanes of happened have the northbound Appeals did not rule on the motion. Civil asserted that Mr. Covel traffic. Defendants in the defendants' The issue was not raised may have had a medical event caused paperwork filed with this Court certiorari accident, Mrs. cross-examined for hereby Defendants moved and is denied. history. health Covel about her husband's en bane and argument oral before this Court They did not call Mr. Covel's doctors as objection. find that filed an We medical witnesses or introduce of his materially argument assist the oral would jury records at trial. The was instructed deny motion. Court and we contributory negligenсe negli- that it was conclusion, we affirm the wrong 131 In gence per se for a driver to be on road, of the defendants' motion Mr. was. We are court's denial side of the Covel cause, necessary negligence jury a direct it is that a to be Instruction No. 5 instructed the damages prov- party claiming injury person has the burden of in HK. Covel's that some injury, ing reasonably he or she has sustained have been a foresee- situation must from whom he or she seeks to recover negligence. able result of negligence negligent was a direct and that such No. instructed Instruction party. injury sustained cause person the Oklahoma statutes or violated a cause No. 7 defined direct cause as listed, Instruction regulations and the violation was federal which, sequence, in a and continuous natural injury, then such violation direct cause of the injury injury produces which the and without person negligent. would make such happened, have and instructed that for would not verdict, 2012 OK 7 notwithstanding the new compe- there was or remittitur because Application RE- In the Matter of the for support jury's verdict tent evidence OF Gina Ann COW- INSTATEMENT pas- product was not and the verdiet LEY, Membership in the Oklahoma prejudice. sion or Bar Association and to the Roll of At- torneys. THE COURT OF OF THE OPINION No. 5724. VACATED; SCBD MO- IS APPEALS

CIVIL DENIED; ORAL ARGUMENT TION FOR Supreme Court of Oklahoma. AFFIRMED. TRIAL COURT

Jan. V.C.J., WATT, COLBERT,

1132VOTE: REIF, COMBS,

EDMONDSON, JJ., concur;

GURICH, KAUGER and

WINCHESTER, JJ., result; concur

TAYLOR, C.J., by separate writing, dissents.

TAYLOR, C.J., dissenting.

¶ 33 Mr. Covel was northbound on I-85. the median and went into the

He crossed outside lane and collided head-on

southbound undisputed It the bus

with the bus. and had brakes obeying all traffic laws all standards. The brakes

that met federal absolutely nothing to do with

on the bus had uncontrollably Covel car

this collision. Mr. the bus and crashed into

eened front of sudden, bus. This was a instantaneous No matter what kind

and unavoidable event. had, may have there is

of brakes the bus

nothing flying driver can do about a the ‍​‌​‌‌‌​‌​​‌​‌‌​​​​‌​‌‌​​​‌‌​​​‌‌‌‌​‌​​​‌‌‌​‌​​‌​‍bus instantly appearing the other side

car from fundamentally unfair highway. It is company required insurance to be bus pay Mr. Covel over million because $2.8 vehicle. The Court of Civil

lost control

Appeals properly plaintiff's found that

expert opinions were not based scientific and that the on causation

foundation totally insufficient

was a bare assertion support huge verdict. this

Case Details

Case Name: COVEL v. Rodriguez

Court Name: Supreme Court of Oklahoma

Date Published: Jan 31, 2012

Citation: 272 P.3d 705

Docket Number: 105,942

Court Abbreviation: Okla.