Carnahan v. Chesapeake Operating, Inc.

347 P.3d 753

2015 OK CIV APP 22

Herb J. CARNAHAN and Bettye M. Carnahan, Plaintiffs/Appellees

v.CHESAPEAKE OPERATING, INC., a Domestic for Profit Corporation, Defendant/Appellant.

110,489

110,989.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

Oct. 28, 2014.

Certiorari Denied March 2, 2015.

Thomas J. McGeady, Donna L. Smith, Michael T. Torrone, Logan & Lowry, L.L.P., Vinita, OK, for Plaintiffs/Appellees.

Kenneth H. Blakley, Robert D. Edinger, Edinger & Blakley, P.C., Oklahoma City, OK, for Defendant/Appellant.

Opinion

WM. C. HETHERINGTON, JR., Vice–Chief Judge.

¶ 1 Chesapeake Operating, Inc. (Chesapeake) appeals entry of a $234,000 judgment following a jury verdict in favor of Herb J. Carnahan and Bettye M. Carnahan (Plaintiffs) in their lawsuit alleging trespass, public nuisance, and private nuisance arising from contamination of their land by a condensate seep from a gas well. Chesapeake claims improper jury instruction and admission of expert opinions over its objections based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), resulted in a lack evidentiary support for the judgment, requiring reversal. Following a review of the experience and education of the challenged experts' qualifications under relevant factors described in Daubert, we determine the trial court did not abuse its wide discretion in admitting the experts' testimony into evidence and there is no reversible error in the jury instructions. The judgment entered on the jury's verdict is AFFIRMED.

FACTS

¶ 2 Chesapeake drilled the Bettye # 1–2 Well on Plaintiffs' property in Beckham County, Oklahoma, in May of 2007, and the well subsequently began producing gas. In late December of 2007, the Oklahoma Corporation Commission (OCC) and Chesapeake began investigations based on Plaintiffs' report of odors indicating a possible leak. Chesapeake hired environmental consultants and OCC sent personnel to conduct tests at a spring and a seep on Plaintiffs' land. The testing confirmed the presence of condensate vapors. OCC's testing did not lead it to identify a source. In late December of 2009, Plaintiffs sued for public and private nuisance and trespass, alleging Chesapeake's oilfield operations had polluted and contaminated part of their ranch land and they were entitled to punitive damages.¹

¶ 3 According to a November 23, 2011 Joint Stipulation Precluding The Presentation of Certain Evidence by Plaintiffs, Plaintiff Herb J. Carnahan, due to his ill health, was not deposed, he would not offer any testimony or exhibits at trial, and Plaintiffs' witnesses, including expert witnesses, would not rely on any statements made by him. Plaintiffs also agreed not to offer “any non-expert testimony or evidence on the computation or amount of any damages sought by Plaintiffs.”

¶ 4 A Third Amended Scheduling Order provided Plaintiffs' experts not previously deposed were “to present material relied upon and give final opinions by September 1, 2011,” and Chesapeake's experts were to be deposed and give final opinions by December 1, 2011. After Plaintiffs' experts were deposed, Chesapeake filed three motions in limine, all of which raised objections under principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), seeking to exclude Plaintiffs' three experts from testifying at trial. Chesapeake also filed a Motion for Summary Judgment As to Causation and Damages in which it argued that if the three motions in limine were granted, then Plaintiffs' claims should fail for lack of supporting evidence. In a separate Alternative Motion for Partial Summary Judgment, Chesapeake also claimed there was no evidence justifying punitive damages. In an Order filed on January 23, 2012, the trial court granted the motion for partial summary judgment regarding punitive damages and denied Chesapeake's three motions in limine and its Motion for Summary Judgment As to Causation and Damages.

¶ 5 The case proceeded to jury trial on January 31, 2012, February 1, 2012, and February 2, 2012. Plaintiffs sought over $482,000, which they contended was the remediation cost to clean up the natural gas condensate. Based upon the grounds previously cited in the denied motions in limine, Chesapeake was given a “continuing and running” objection to the opinions of Plaintiffs' experts so as to avoid disruption of the trial.² When Plaintiffs rested their case, Chesapeake demurred to their evidence, arguing, inter alia, Plaintiffs had failed to produce admissible evidence on every element of their theories for recovery and for causation, and their experts either could not identify the accepted scientific method relied upon for opinions or identified an accepted scientific method but failed to follow it. The trial court overruled the demurrer and Chesapeake presented its own evidence. After Chesapeake rested, it moved for a directed verdict, arguing Plaintiffs had produced no admissible evidence reasonably supporting their claims. Chesapeake contended Plaintiffs' experts failed to present qualified, reliable, scientific, or relevant expert opinions on causation, injury, or damages and the experts' testimony should not have been admitted at trial. After hearing argument, the trial court overruled Chesapeake's motion. The jury returned a verdict in favor of Plaintiffs and against Chesapeake in the amount of $234,000, and judgment was entered accordingly. This appeal followed.

STANDARD OF REVIEW

¶ 6 “[T]he clear abuse of discretion appellate standard applies when we review a decision on the admissibility of expert testimony.” Christian v. Gray, 2003 OK 10, ¶ 42, 65 P.3d 591, 608. “An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.” Spencer v. Oklahoma Gas & Electric Company, 2007 OK 76, ¶ 13, 171 P.3d 890, 895 (Emphasis omitted).

¶ 7 “[T]he sufficiency of the evidence to sustain a judgment in an action of legal cognizance is determined by an appellate court in light of the evidence tending to support it, together with every reasonable inference deducible therefrom, rejecting all evidence adduced by the adverse party which conflicts with it. Park v. Security Bank and Trust Company, , 512 P.2d 113, 118 (Okla.1973).” Florafax International, Inc. v. GTE Market Resources, Inc., 1997 OK 7, ¶ 3, 933 P.2d 282, 287.

¶ 8 “We must affirm a jury verdict if there is any competent evidence reasonably tending to support it, evidence which is relevant and material to the issue to be determined.” Ellison v. Campbell, 2014 OK 15, ¶ 14, 326 P.3d 68, 73. (Emphasis and footnotes omitted.) “A jury verdict is conclusive as to all disputed facts and all conflicting statements, where there is any competent evidence tending to support the jury verdict. Where a jury has tried a cause, it is the exclusive arbiter of the credibility of the witnesses.” Id. (Footnotes omitted.)

¶ 9 “We review assigned errors in jury instructions to consider whether the instructions in their entirety accurately reflect the law and whether it is reasonably evident that the jury was mislead by an erroneous instruction.” Gilbert v. Security Finance Corporation of Oklahoma, Inc., 2006 OK 58, ¶ 2, 152 P.3d 165, 171. (Footnote omitted.) “We inquire on review whether the instructions reflect the Oklahoma law on the relevant issue, not whether the instructions were perfect.” Myers v. Missouri Pacific Railroad Company, 2002 OK 60, ¶ 29, 52 P.3d 1014, 1029. (Footnote omitted.) “The test of reversible error in giving jury instructions is whether the jury was misled to the extent of rendering a different verdict than it would have rendered if the errors alleged had not occurred. Johnson v. Ford Motor Co., 2002 OK 24 ¶ 14, 45 P.3d 86, 92–93.” Covel v. Rodriguez, 2012 OK 5, ¶ 26, 272 P.3d 705, 716.

THE APPEAL

¶ 10 Summarized, Chesapeake's appeal raises two main issues for consideration. Chesapeake argues Plaintiffs' expert's evidence was improperly admitted, causing a failure of competent and sufficient evidence of causation, injury or damages, and the jury was not properly instructed about damages. We address these contentions in turn.

Expert Testimony and Daubert

¶ 11 Chesapeake argues the evidence provided by Plaintiffs' three experts, petroleum engineer Earl Gary Keen (Keen), environmental consultant Jerry James Black (Black), and real estate appraiser Jim R. Artman (Artman), was incompetent, insufficient, and inadmissible under the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As a result, Chesapeake contends, the trial court abused its discretion by admitting the experts' opinions into evidence, Plaintiffs did not meet their burden of proof, and a directed verdict should have been entered.

¶ 12 Factors to consider when assessing the admissibility of expert testimony are set forth in cases such as Daubert and Kumho Tire Co., Ltd. v. Patrick Carmichael et al., 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), both of which were explicitly adopted for application in Oklahoma civil actions in Christian v. Gray, 2003 OK 10, ¶ 14, 65 P.3d 591, 600.

¶ 13 The Kumho court held Daubert's general holding setting forth the trial judge's general “gatekeeping” obligation “applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge” and cautions Daubert's “list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” 526 U.S. at 141, 119 S.Ct. at 1171. The Kumho Court notes, 526 U.S. at 142, 119 S.Ct. at 1171, how

[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See

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