Ellison v. Michael D. Campbell, an Individual, & M.D. Campbell & Assocs., L.P.

326 P.3d 68

Jackie Eugene ELLISON, a/k/a Gene Ellison, individually and as Trustee of the Equivalent Exemption Trust Created Pursuant to Article V, VII, and VIII of the Last Will and Testament of Glen G. Ellison, Deceased; Marcia Ellison, an individual; Richard M. Healy, P.C., an Oklahoma Corporation; Jayne Jarnigan Robertson, P.C., an Oklahoma Professional Corporation; and Michael J. Blaschke, P.C., an Oklahoma Professional Corporation, Plaintiffs/Appellees,

v.Michael D. CAMPBELL, an individual, and M.D. Campbell & Associates, L.P., a Texas Limited Partnership, Defendants/Appellants.

No. 108468.

Supreme Court of Oklahoma.

March 11, 2014.

Rehearing Denied May 12, 2014.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV.

¶ 0 The plaintiffs/appellees, Jackie Eugene Ellison and Marcia Ellison (collectively, Ellisons/landowners) along with Richard M. Healy, P.C. (Healy), Jayne Jarnigan Robertson, P.C. (Robertson), and Michael J. Blascheke, P.C. (Blascheke), sued the defendants/appellants, Michael D. Campbell and M.D. Campbell & Associates, L.P. (collectively, Campbell/expert witness), for breach of contract in Oklahoma County District Court. The plaintiffs/appellees alleged that Campbell failed to render a defensible expert opinion in underlying litigation in Canadian County, Oklahoma, and, thereafter, abandoned the task for which he was hired. Campbell counterclaimed for $34,758.50, characterized as uncompensated professional services. An Oklahoma County jury rendered judgment in the plaintiffs/appellees' favor. Based on the jury's verdict, the trial court entered judgment for the plaintiffs/appellees for $408,748.68, plus statutory interest. Campbell filed a motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict. After hearing argument, the trial court overruled the motions and Campbell appealed. The Court of Civil Appeals reversed, finding that the breach of contract cause of action failed because the plaintiffs/appellees did not prove their cause by presenting an expert witness. Here, the expert witness indicted his own performance in the underlying matter. Supporting testimony made it clear that Campbell did not produce a document which accurately represented the state of the groundwater underlying the Ellisons' property or the source of its pollution. Any lay person could consider the testimony presented and conclude that the Ellisons did not receive the services for which they contracted. The expert witness's testimony was such that any reasonable juror might question his candidness. Under these unique facts, it was unnecessary for plaintiffs/appellees to rely upon expert testimony to prevail in their breach of contract claim.

COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

Jayne Jarnigan Robertson, Jayne Jarnigan Robertson, P.C., Oklahoma City, Oklahoma, for plaintiffs/appellees, Michael J. Blaschke, P.C., Jackie Eugene Ellison, Marcia Ellison, Richard M. Healy, Jayne Jarnigan Robertson, P.C.

Andrew E. Karim, KARIM LAW OFFICE, Oklahoma City, Oklahoma, for defendants/appellants, Michael E. Campbell, M.D. Campbell & Associates, L.P.

WATT, J.

¶ 1 We granted certiorari to consider a single issue.¹ The first impression question presented is: whether, in a suit for breach of contract in which a party seeks compensation for an expert witness's failure to provide competent litigation support services in an underlying suit, the cause must be proven by the presentation of expert testimony.

¶ 2 We emphasize that this matter is grounded on a claim for breach of contract. In so doing, we also stress that this opinion does not stand for the proposition that a losing party may recover monies paid to an expert witness for the formulation and presentation of a professional opinion in the context of litigation merely because the party requesting such opinion did not prevail or recover to the extent anticipated. Nevertheless, we determine that, under the unique facts of this cause, expert testimony demonstrating that Campbell's performance in the underlying litigation was substandard was unnecessary. Campbell's own admissions were sufficient to infer negligence. Furthermore, there was additional, supporting testimony indicating that Campbell did not present an accurate document which could be empirically supported or shown to comply with governmental standards. The testimony presented was most certainly such that a lay person, through common knowledge or experience, could determine that Campbell did not produce the very thing for which the Ellisons' contracted, a supportable expert opinion concerning the state of the groundwater underlying the Ellisons' property and the source of its pollution. ² Finally, Campbell's contradictory statements made at the time of his deposition and at trial were sufficientthat a reasonable juror might well question his veracity.

FACTS AND PROCEDURAL HISTORY

¶ 3 On April 29, 1999, the Ellisons filed suit in Canadian County against an oilfield waste disposal facility alleging it was responsible for polluting the groundwater on their property. The Ellisons believed that the polluted ground water explained the deaths of cattle grazing on their property and drinking from its streams. They hired Campbell, an expert hydrogeologist,³ in January of 2001 to conduct tests and to drill monitoring wells to establish empirical data which would allow him to render a scientifically supportable expert opinion to confirm their suspicions and provide support for their suit.

¶ 4 Campbell recommended that several monitoring wells be drilled on the Ellisons' property to provide groundwater samples for pollution measurements. In an attempt to control litigation costs, the Ellisons agreed to the drilling of two monitoring wells. Samples were collected from the wells for a period of several years while a partial summary judgment in the cause was considered on appeal. At the request of the Ellisons, Campbell prepared his expert report and presented it to the defendants in the Canadian County cause in September of 2006.

¶ 5 On December 4, 2006, Campbell appeared for his deposition. The defendants grilled the expert witness over a three-day period. During that time, Campbell testified that he did not know whether certain protocols were followed in sample testing.⁴ He also pointed out errors in the report he submitted to the defense prior to his deposition, including the utilization of a value of 4,000 cubic feet in a calculation when it should have been 8,000 cubic feet. ⁵ When asked if he thoroughly researched industry knowledge in regard to mud pits and their relationship to leakage and pollution, Campbell responded that it was “difficult to say” and that “serendipity has a lot to do with finding articles when you need them.” ⁶

¶ 6 At the end of the first day of his deposition testimony, Campbell was asked to verify some of his calculations and to check errors in his written report. When asked about these items the next morning, Campbell told counsel: he “was too tired” to go over his report; he was “a busy person;” he knew the report contained misplaced bars on graphs, questionable concentrations, and the only way to be certain that all the charts in his materials were not riddled with errors would be to go back and look at them.⁷ Initially, when asked if the monitoring wells complied with Oklahoma Water Resources Board and Environmental Protection Act standards, Campbell testified he “didn't know” because he hadn't read them and that the Environmental Protection Agency would not accept his data as reliable.⁸

¶ 7 Shortly after Campbell's deposition concluded on December 6, 2006, Campbell discontinued his assistance in the Canadian County litigation. While Campbell insists this occurred because he was fired, the Ellisons contend Campbell quit. The plaintiffs/appellees' allegation was supported by testimony presented at trial.⁹

¶ 8 The Ellisons settled the Canadian County matter in January of 2007. In July of the same year, they filed their petition in Oklahoma County in the instant cause alleging negligence, tortious breach of contract, and breach of contract for the expert witness's failure to provide them with a scientifically supportable product which could be utilized in the Canadian County suit. The Ellisons sought actual and consequential damages. Campbell moved to dismiss the cause arguing that the Ellisons had not stated a claim upon which relief could be granted and that the claim sounded in contract rather than in tort. The trial court agreed in part, finding that the Ellisons' cause should proceed as a simple breach of contract case. Campbell counterclaimed arguing that he was owed some $34,758.50 for services rendered, together with prejudgment interest, reasonable attorney's fees, and costs.

¶ 9 The jury heard testimony in the instant cause over a four-day period, February 8th through the 11th, 2010. On March 11, 2010, based on the jury's verdict in the Ellisons' favor, the trial court entered judgment for the plaintiffs/appellees in the sum of $408,748.68,¹⁰ plus statutory interest. Campbell timely filed a motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict. Campbell argued that the Ellisons' claim for breach of contract failed because they did not present an expert in hydrogeology to counter his scientific conclusions. Unconvinced, the trial court denied the motions.

¶ 10 Campbell appealed. In an unpublished opinion, the Court of Civil Appeals reversed the trial court on September 6, 2013. It determined that the trial court committed error by failing to require the Ellisons to present an expert to refute Campbell's testimony for the purpose of establishing that his actions in the underlying cause amounted to a breach of contract.

¶ 11 On September 26, 2013, the Ellisons filed their petition for certiorari with this Court. The petition was granted on December 3, 2013. We received the...