Andrew v. Depani-Sparkes

2017 OK 42, 396 P.3d 210, 2017 WL 2123981, 2017 Okla. LEXIS 44

Opinions

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE DISTRICT COURT REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS

EDMONDSON, J.

¶ 1 Plaintiffs filed an action in the District Court alleging defendants’ negligence relating to the prenatal care and birth of plaintiffs’ child. That court granted summary judgment to defendant Mercy Health Center and plaintiffs appealed. Plaintiffs argue the trial court did not apply a correct standard for causation and failed to recognize the testimony from their expert witnesses. Mercy argues the tidal court correctly sustained a motion for summary judgment which relied in part on a Daubert¹ motion filed by Mercy. Mercy also argues plaintiffs simply failed to show causation required in a negligence action by an expert opinion. We reverse the summary judgment because plaintiffs’ materials used to object to summary judgment showed expert opinions on causation sufficient to create a question of fact. We also explain a Daubert adjudication may not be applied retroactively to support a prior judgment. We remand the cause for further proceedings.

¶ 2 There were five pending motions in the trial court. Two were motions for summary judgment filed by defendants, and one of these was filed by Mercy. Three were Dau-bert motions. Two Daubert motions were filed by defendants: (1) Mercy’s motion to exclude plaintiffs’ expert concerning causation and the conduct of Mercy’s nursing staff, and (2) Sparkes’ motion to exclude the opinions of a different expert witness for plaintiffs. One Daubert motion was filed by plaintiffs to exclude testimony concerning a causation theory advocated by defendants.

¶ 3 On April 23, 2015, the trial court sent to the parties an email which granted Mercy’s amended motion for summary judgment. The email stated plaintiffs failed to submit “evidence tending to prove that any act of Defendant’s nursing staff was the direct cause of the injury to Plaintiffs’ minor child.”²

¶ 4 The next day on April 24th after granting Mercy’s summary judgment motion, the journal entry of the summary judgment was filed and the trial court held a hearing on the pending Daubert motions. The trial court stated it understood the issues, oral argument was not necessary, but would be provided if any party wanted an oral argument. Tr. at 4-5. All counsel waived argument. The trial court granted Mercy’s Daubert motion.

¶ 5 On April 28, 2015, and four days after the Daubert hearing, plaintiffs filed a “motion to reconsider” the summary judgment granted to Mercy, or in the alternative for the trial court to certify, the court’s ruling for an immediate appeal pursuant to 12 O.S. 994. The motion had additional factual material attached, and Mercy objected to the motion.

¶ 6 On May 13, 2015, the trial court rendered an “Amended Order Granting Mercy Health Center, Inc.’s Amended Motion for Summary Judgment” that was filed June 2, 2015. The amendment repeated'the language on the Court’s April 24th journal entry and added a 12 O.S. 994 certification stating the order was a final adjudication. The trial court also stayed the proceeding until completion of the 994 appeal.

¶7 Plaintiffs appealed and the Court, of Civil Appeals affirmed the trial court with one judge dissenting. Plaintiffs sought certio-rari, three Special Justices were appointed, to participate for three Justices of the Court who recused or disqualified in the matter. The Court granted the'petition for certiorari. We vacate the opinion by the Court of Appeals, reverse the summary judgment, and remand the matter for additional proceedings. ,

I.

¶ 8 For an adjudicated claim to be suitable for immediate appeal pursuant to 12 O.S. 994,³ it must not arise from the same transaction or occurrence as any unadjudieated claims left pending in the trial court.⁴ Both plaintiffs and defendants briefed the issue whether plaintiffs’ suit was brought as single or multiple causes of action against multiple defendants. Both plaintiffs and Mercy argued the cause of action against Mercy is a cause of action separate and distinct from those pled against other defendants in the trial court. The Court has appellate jurisdiction to review the District Court’s judgment,

II.

¶9 Generally, interlocutory orders that are not made subject to immediate appellate scrutiny may nevertheless obtain appellate scrutiny upon an appeal from a subsequent appealable order or judgment.⁵ A trial court’s Daubert order is an evidentiary ruling, and an interlocutory order anterior to judgment which is usually reviewed when a subsequent judgment or appealable order is appealed and after adequate steps have been pursued to preserve the alleged error.⁶

¶ 10 The appellate record and supplemental record filed in this Court do not contain (1) any Daubert motions or responses thereto, or (2) any journal entry of the trial court expressly granting or denying a Dau-bert motion. Generally, error assigned on appeal must be shown by the appellate record.⁷ When the alleged error involves an evidentia-ry issue, the record on appeal must contain the evidence and a trial court record showing the judge’s ruling. For example) an appellate complaint of insufficient evidence to support a judgment must be supported on appeal with the evidence submitted to the trial court.⁸ In the matter before us, we do not review a usual Daubert issue of scientific validity or methodology used in an opinion provided by an expert witness.⁹ Our appellate review of a Daubert issue is limited to the extent it is applicable to the motion for summary judgment and to the extent it may be included in that judgment as we explain herein.

III.

¶ 11 On April 24th, one day after deciding the summary judgment motion, the journal entry for the summary judgment was filed and the trial court also heard a Daubert motion. Four days later plaintiffs filed a motion to reconsider the summary judgment awarded to Mercy. Plaintiffs attached additional factual material. Mercy argued plaintiffs’ April 28th motion to reconsider with an expert witness affidavit could not be considered by the trial court. Mercy argued plaintiffs’ new affidavit attached to the motion conflicted with that expert’s deposition testimony and the motion for reconsideration fell short of the requirements in 12 O.S. 651 (new trial)¹⁰ or 1031 (vacation or modification).¹¹

¶ 12 Prior to the repeal of 12 O.S. 317 in 1984,¹² our law distinguished orders modifying. a judgment and those amending a judgment,¹³ and after that date we explained the function of amending a judgment by an order granting nunc pro tunc relief, to correct a clerical error on the face of a judgment with an amended judgment stating what actually occurred. An amendment (nunc pro tunc) could relate back,¹⁴ but a modification of a judgment did not relate back because it was considered a' final order after an “original judgment.”¹⁵

¶ 13 The. journal entry of the amended judgment filed on June 2nd did not correct a clerical error in the April 24th journal entry, but added a 994 certification of finality which made the adjudication appealable at that time.¹⁶ The “amendment” did not amend or modify a “judgment.” The trial court’s order granting “summary judgment” to Mercy on April 23rd was not a judgment at that time, but a partial summary adjudication granted to one of the-defendants in the action, and the order did not become a judgment until May 13th when the 994 certification was made by the trial court, and then it was made appealable on June 2nd when a journal entry was filed.

¶ 14 The timing of the trial court’s creation of a 994 judgment shows that plaintiffs’ motion for reconsideration was not barred or restricted in scope by either 651 or 1031, and wé conclude Mercy’s argument on this point is incorrect, as we now explain. In House v. Town of Dickson, we stated the following.

A partial summary adjudication is not a judgment under title 12, section 681 of the Oklahoma Statutes nor is it a final order under title 12, section 953. Beams, 1979 OK 171 at ¶3, 604 P.2d at 374. A partial summary adjudication is not appealable unless it is an interlocutory order (1) ap-pealable by right under title 12, sections 952(b)(2) or 993 or other statutory provision or (2) certified for immediate appeal under title 12, section 952(b)(3), or (3) it is prepared as a final judgment, order, or decree at the direction of the court with a finding that there is no just reason for delay and disposes of some of the claims pursuant to title 12, section 994. Id. The district court’s partial summary adjudication before us is not appealable by right nor does it contain the necessary language for review as required by title 12, sections 952(b)(3) or 994.

House v. Town of Dickson, 2007 OK 57, ¶9, 193 P.3d 964, 967-968, citing Reams v. Tulsa Cable Television, Inc,, 1979 OK 171, ¶8, 604 P.2d 373, 374, and 12 O.S. 952, 993, & 994.

Our opinion ten years earlier in LCR, Inc. v. Linwood Properties¹⁷ was consistent with House and explained a “motion for a new trial” challenging a partial summary adjudication was not a 12 O.S. 651 motion for new trial or a 12 O.S. 1031.1 motion.¹⁸ A partial summary adjudication which is lacking finality and appealability as a non-appeal-able interlocutory order “is but an intermediate order in the case,” remains within the trial judge’s complete control to modify or alter at any time before judgment,” and a motion to reconsider challenging that intermediate order “is to be treated as a request for reconsideration of an intermediate ruling in the case.”¹⁹

¶ 15 Mercy noted a motion to reconsider may be treated as a 651 motion for new trial or a motion to vacate pursuant to 1031.1 or 1031. Mercy argued plaintiffs’ motion to reconsider was limited in scope to the grounds listed in 12 O.S. 1031. A motion to reconsider may be treated as a 12 O.S. 651 motion for new trial when the motion to reconsider is filed within a ten-day period after the filing of a judgment, decree or appealable order.²⁰ A motion to reconsider may treated as a 12 O.S. 1031 or 1031.1 motion “to modify or to vacate a final order or judgment ... if filed after ten (10) days but within thirty (30) days of the filing of the judgment, decree, or appealable order.”²¹ Plaintiffs’ motion to reconsider was not filed after a “judgment decree, or appealable order” or after a “final order.”

¶ 16 Section 1031 specifies nine causes for vacating or modifying judgments and orders.²² Generally, a trial court’s discretion to modify one of its interlocutory orders anterior to judgment is -within the court’s, “complete control” and not limited to these specific causes,²³ and a party’s right to invoke that judicial discretion to review an interlocutory partial summary adjudication anterior to judgment should not be restricted unless a specific statute provides for such restriction and also provides fixed principles for determining the correctness of its application by the trial court on a subsequent appeal.²⁴

¶ 17 We reject Mercy’s argument that a motion to reconsider requesting a change in an interlocutory order anterior to judgment should be treated as if the motion sought vacation of a judgment pursuant to 1031 when the terms of that statute do not expressly include that interlocutory order within the scope of that statute. A motion to reconsider an interlocutory order anterior to judgment is not a 1031 motion to vacate unless made so by the terms of the statute. We note this conclusion is consistent with our opinions discussing timeliness of appeals relating to 1031 motions and we need not address appealability issues which would arise if we were to hold otherwise as requested by Mercy.²⁵

¶ 18 A motion for new trial filed “after the announcement of the decision on all issues in the case but before the filing of the judgment or decree shall be deemed filed immediately after the filing of the judgment or decree.”²⁶ Plaintiffs’ motion to reconsider was not filed after announcement of a decision “on all the issues in the case.” The motion to reconsider requesting a change to an interlocutory partial summary adjudication is not a premature 651 motion for new trial challenging a decision on all the issues in the case.

¶ 19 A party is not required to file a motion for new trial in order to file a subsequent appeal.²⁷ However, pursuant to 12 O.S. 991 ²⁸ if a party files a motion for new trial, then the assignments of error in a subsequent appeal are limited to those raised in the motion before the trial court.²⁹ Consistent with LCR, Inc. v. Linwood Properties, supra, we reject any implication that a motion to reconsider requesting a change in an interlocutory order anterior to judgment should be the functional equivalent to a 651 motion for new trial, and that ah appeal by a party who sought that interlocutory relief should be procedurally restricted by 651 in raising assignments of error.

¶ 20 Our analysis is consistent with that made by the Court of Civil Appeals in a recent opinion. That court rejected an argument that party’s failure to include certain assignments of error in a motion to reconsider constituted a waiver of those assignments on a subsequent appeal. The appellate court concluded the motion to reconsider was not the functional equivalent to a motion for new trial when it requested a change in a nonfmal (interlocutory) order made in the course of action over which the trial judge had complete control to modify at any time before judgment.³⁰

¶ 21 Because a trial judge has “complete control” to alter a partial summary adjudication prior to judgment, we view the motion to reconsider as invoking that discretion and not as a functional equivalent to a motion for new trial. The trial judge was not procedurally barred by 651 or 1031 from hearing plaintiffs’ motion to reconsider and reviewing the attached material. However, District Court Rule 13 does prohibit a party from engaging in conduct amounting to the proverbial “taking a second bite at the apple.”

¶ 22 The Court of Civil Appeals and Mercy relied on two opinions, Culpepper and Frey,31 for the principle that appellate review of an order granting a motion for summary judgment is based upon the record before the trial court when granting summary judgment and not on a record which could have been supplied. The Court of Civil Appeals did not consider the affidavit filed in support of plaintiffs’ motion to reconsider. Plaintiffs argue the affidavit should be considered.

¶ 23 In Culpepper we stated: (1) “we find no authority or court rule that requires the trial court to reconsider” and (2) “summary judgment is to be made on the record which parties have actually presented and not on a record which is potentially possible,” citing Weeks v. Wedgewood Village, Inc.32 The first statement is clearly incorrect based upon opinions since Culpepper which allow a party to invoke judicial discretion by a filing a motion to reconsider. The second rests upon District Court Rule 13 procedure for summary judgments.

¶24 District Court Rule 13(b) specifies that when a motion for summary judgment is granted a party opposing summary judgment “cannot on appeal rely on any fact or material that is not referred to or included in the statement in order to show that a substantial controversy exists.”³³ We do not depart from that principle. A party opposing summary judgment must provide the factual statements in support of opposition or seek additional time to present the evidentiary material as provided by Rule 13(d).³⁴ Both the Court of Civil Appeals and Mercy are correct that new submissions in support of the motion to reconsider should not be considered.

¶ 25 This conclusion is consistent with the U.S. Supreme Court’s view that parties should present their best case and “best expert evidence” when the case is in the procedural posture of an adjudication on a Daubert issue. Seventeen years ago the U.S. Supreme Court explained that after the Daubert decision parties were “on notice” they should present their “best expert evidence” when a Daubert objection is made.

Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet. ... It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should them first try fail. ... In this case, for example, although Weisgram was on notice every step of the way that Marley was challenging his experts, he made no attempt to add or substitute other evidence.

Weisgram v. Marley Company, 528 U.S. 440, 455-456, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000), (citations and material omitted).

Ten years prior to Weisgram the High Court observed, “A litigant’s failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant’s own risk.”³⁵ Parties should present their best expert evidence in support of and in response to a motion for summary judgment.³⁶

¶ 26 A 651(7) motion for new trial provides for presenting newly discovered evidence in support of the motion.³⁷ Mercy argued that an affidavit by plaintiffs’ expert witness filed in support of the motion to reconsider was a new and inconsistent opinion, and should be not considered because it was a “sham affidavit.” Our Court of Civil Appeals has developed a sham affidavit doctrine based, in part, on one aspect of the summary adjudication process in federal courts.³⁸ We need not analyze the sham affidavit doctrine, its application to an expert witness affidavit, review the doctrine in Oklahoma and federal courts,³⁹ or discuss application of a 651 provision to a motion to reconsider an interlocutory summary adjudication.

¶27 We are not called upon to review either a 661 or 1031 motion. But we incorporate one element of 651 appellate review when reviewing a motion to reconsider challenging an . interlocutory summary adjudication anterior to judgment. The standard of review when a trial court denies a motion for new trial after granting summary judgment is set out in a recent opinion, Reeds v. Walker.⁴⁰

Summary relief issues stand before us for de novo review. All facts and inferences must be viewed in the light most favorable to the non-movant. Appellate tribunals bear the same affirmative duty as is borne by nisi prius courts to test for legal sufficiency all eviden-tiary material received in summary process in support of the relief sought by the movant. Only if the court should conclude there is no material fact (or inference) in dispute and the law favors the movant’s claim or liability-defeating defense is the moving party entitled to summary relief in its favor. A trial court’s denial of a motion for new trial is reviewed for abuse of discretion. Where, 'as here, our assessment of the trial court’s exercise of discretion in denying defendants a new trial rests on the propriety of the underlying grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication’s correctness. Judicial discretion is abused when a trial court errs with respect to a pure, unmixed question of law.

Reeds v. Walker, 2006 OK 43, at ¶9,157 P.3d at 106-107, notes omitted and emphasis added.

Similar to Reeds v. Walker, we have recently explained that we review a summary judgment de novo, without deference to the lower court; we review the denial of a new trial, for abuse of discretion; and it is an abuse of discretion to deny a new trial where the summary judgment was incorrect.⁴¹ We now examine whether the order granting summary judgment was correct. -

IV.

¶ 28 Thé petition fqr certiorari states the trial court failed to consider all of plaintiffs’ evidentiary material during the partial summary adjudication. The April 24th interlocutory partial summary' adjudication was granted before the trial-court held a scheduled Daubert hearing. Mercy’s motion for summary judgment* states -it is entitled to judgment because plaintiffs did not produce evidence in the form of medical expert testimony that an act of Mercy’s - nursing staff was the direct cause of an injury to plaintiffs’ child. That same motion also states that testimony “tending towards evidence of causation against Defendant” came from one of plaintiffs’ experts, M.M., Ph.D, M.S.N, and Mercy had filed a Daubert motion contending this expert was not qualified to testify concerning causation.

¶ 29 In summary, Mercy’s motion for'summary judgment states one- of plaintiffs’ experts has opined concerning causation-but it has filed a Daubert objection to that opinion, the trial judge granted summary judgment stating that plaintiffs -failed to show causation, .and the decision to grant summary judgment was made prior to the judge’s hearing on whether that expert’s testimony should be excluded under Daubert. The trial judge’s email sent to counsel and granting summary judgment includes the following:

Plaintiffs have provided no evidence- tendí ing to prove that any acts of Defendant’s nursing staff was the direct, cause of the injury to Plaintiffs’ minor child. Indeed, of Plaintiffs’ experts qualified to opine.,as to the causation element .of Plaintiffs’ prima facie case of medical negligence, none point to any evidence supporting Plaintiffs’ assertion that the actions . of Defendant’s nursing staff directly caused the injury to Plaintiffs’ minor child. In the absence of evidence establishing the causation element of Plaintiffs’ prima facie case of medical negligence, evidence which must be proven through expert testimony, Plaintiffs cannot meet their burden of proof, and Defendant is entitled to judgment as a matter of law.

The language in this email was used for the April 24th journal entry as well as the June 2nd journal entry. The supplemental record on appeal contains a transcript of the hearing on plaintiffs’ motion to reconsider and request for 994 certification. The transcript shows opposing counsel addressing the opinions of various experts concerning causation, the court denying the motion to reconsider, and then the trial court certifying a 994 judgment for an immediate appeal.

¶ 30 The trial judge’s language granting summary judgment contains language stating “of Plaintiffs’ experts qualified to opine as to the causation element ... none point to any evidence supporting Plaintiffs’ assertion.” However, defendant’s motion for summary judgment states that plaintiffs’ expert, M.M., Ph.D, M.S.N, gave an opinion concerning causation relating to Mercy’s employees and their actions as to shoulder dystocia.

¶ 31 According to Mercy’s motion for summary judgment, expert witness, M.M. stated the use of Pitocin “contributed to the condition of shoulder dystocia.” Plaintiffs’ response on summary judgment contains part of the deposition of another expert, Dr. H., who distinguishes between shoulder dystocia and brachial plexus injury, states that one may occur without the other, and then answers affirmatively to the question that it is his opinion that “excessive lateral traction on the neck during the delivery of the infant, after the head has been delivered, and shoulder dystocia is encountered, is the direct and proximate cause of the permanent brachial plexus injury [in this case].” This is an opinion that the shoulder dystocia was a factor in creating the injury to the infant.

¶ 32 Mercy elicited testimony that shoulder dystocia and brachial plexus injury may each occur when the other one is absent. However, this testimony relating to general causation did not negate the claim that a shoulder dystocia could be a factor in brachial plexus injury in either the population in general or in this specific instance, which was the claim made by plaintiffs in their summary adjudication response. Witness M.M. provided an opinion on the nature of Pitocin, that it became contraindicated and the nursing staff should have called the physician for it to be discontinued, and that the Pitocin use “is the contribution to impacting the shoulder” relating to the shoulder dystocia. The plaintiffs’ response on summary adjudication cited to depositions allegedly indicating the Pitocin dosage was increased by the nursing staff nine times in violation of Mercy’s written policy on Pitocin use and contrary to the order of the prescribing physician. Material attached to plaintiffs’ response on summary judgment states that Pitocin may be used to initiate and improve uterine contractions, Material from two depositions by doctors attached to that same response state that both contractions and pushing caused the brachial plexus injury.

¶ 33 An adjudication on summary judgment settles only questions of law.⁴² Summary judgment is not proper when material facts are disputed.⁴³ A trial court determination that no fact exists of record to support the issue of fact submitted for resolution is a determination of an issue of law and requires a de novo review.⁴⁴ The trial court’s determination no fact showed a causal link between the actions of Mercy’s employees and the injury to the infant requires de novo review. The materials submitted with plaintiffs’ response on summary adjudication are sufficient to show a disputed fact on the issue of causation, i.e., whether the alleged abnormal Pitocin exposure created contractions which in turn contributed to the creation of the brachial plexus injury.

V.

¶ 34 When the trial court made the partial summary adjudication and stated “of Plaintiffs’ experts qualified to opine as to the causation” did not show causation, the language appears to be either (1) not applying precedent that a defendant whose conduct allegedly contributed to cause a plaintiffs injury is liable for the injury even if his or her conduct was not sufficient by itself to cause the injury, or (2) using a Daubert analysis (or some other standard) to exclude testimony of one or more of plaintiffs’ expert witnesses. The trial court’s adjudication of Mercy’s Daubert motion to exclude testimony by plaintiffs’ experts may not be used on appeal to support affirming the grant of partial summary adjudication that was later certified as a final appealable judgment.

¶35 Because the trial court’s language granting summary judgment occurred prior to the hearing on the Daubert motions filed by the parties, the court’s language creating a class of proper experts on the issue of causation from the larger class of all of plaintiffs’ experts, appeal’s to be a sua sponte Daubert assessment excluding the testimony of at least one of plaintiffs expert witnesses. The trial court’s language, taken by itself, could merely show a recognition that not every expert witness for plaintiffs was a causation expert. But the trial court’s language appears in a context of granting Mercy’s motion for summary judgment which was expressly predicated by Mercy upon its Daubert motion excluding at least one of plaintiffs’ experts on the issue of causation which creates the appearance that the trial court did not consider that witness on the issue of causation. Facts showing such exclusion, if made, were not expressly stated by the trial court as part of its summary adjudication, raising a due process issue.⁴⁵ We need not determine whether a trial court possesses discretion to make a sua sponte Daubert assessment,⁴⁶ or whether such sua sponte inquiry would be consistent with the general concept that a party may waive an objection to evidence by failing to timely object,⁴⁷ or application of District Court Rule 13(c) with notice to the parties.⁴⁸ A trial court commits reversible error by making a sua sponte Daubert decision as a basis for granting summary judgment without notice to a party that the party’s testimony is subject to being excluded as part of that adjudication.

¶36 In Jahn v. Equine Servs.,⁴⁹ defendants moved for summary judgment based on the assertion plaintiff failed to show causation. The trial court determined sua sponte, and without allowing additional briefing, that the proposed testimony of two doctors was inadmissible under Daubert, rejected their expert testimony, and then granted summary judgment to defendants because plaintiff did not show causation.⁵⁰ Plaintiff successfully appealed the trial court’s summary judgment and its sua sponte decision to strike the experts’ testimony as inadmissible under the standard set forth in Daubert.

¶37 That appellate court noted a trial court is hot required to hold a Daubert hearing. We agree with both our Court of Criminal Appeals and the U.S. Supreme Court that a Daubert hearing is not required in every circumstance when a party makes an objection and argues for application of Daubert.51 In 'John, the appellate court noted “the' record was incomplete because the court gave plaintiff no notice that it would be ruling on the admissibility of her experts as part of its summary judgment adjudication.⁵² In our base today, there is no notice the trial court would decide the summary judgment motion utilizing an application of Daubert prior to the Dcmbert hearing.

¶ 38 The maimer by which a trial court controls its docket, including the timing or order of its decisions, is within the court’s inherent power to control so long as the reasonable exercise of this inherent power does not prejudice the rights of the parties involved.⁵³ District Court Rule 13(c) expressly provides the following.

Evidentiary material that does not appear to be convertible to admissible evidence at trial shall- be challenged by objection or motion to strike, or the objection shall be deemed waived for the purpose of the decision on the motion for summary judgment or summary disposition. If a trial of factual issues is required after proceedings on a motion for summary judgment or summary disposition, evidentiary rulings in the content of the summary procedure shall be treated as rulings in limine....

A party has a procedural right to have his or her admissible evidence be considered on summary judgment unless challenged by an opposing party. Fundamental fairness cannot be afforded except within a framework of orderly procedure, and that fairness includes giving notice of certain judicial events altering legally cognizable rights.⁵⁴ The trial court could not sua sponte exclude plaintiffs’ witnesses and its subsequent ruling on Mercy’s Daubert motion could not be applied retroactively as a ground to support the partial summary adjudication. Since the summary judgment is reversed herein, we need not engage in additional analysis on this issue because any.trial court Daubert determination used sub silentio for summary judgment is' also an interlocutory order anterior to judgment and advisory on a motion in limine, and the Daubert causation issue is not a conclusively established issue on this record for the trial court upon remand.⁵⁵

VI.

¶ 39 We hold that (1) a question of fact was presented by the summary judgment filings, and (2) a trial court’s pretrial ruling on a Daubert objection to evidence may not be used as grounds to retroactively support a summary judgment granted prior to the trial court's Daubert adjudication. Cer-tiorari was previously granted. We vacate the opinion of the Court of Civil Appeals. The summary judgment granted to Mercy is reversed and the matter is remanded to the District Court for additional proceedings.

¶ 40 WATT, WINCHESTER, EDMONDSON, COLBERT, and REIF, JJ.; and CUNNINGHAM, MCCALL, and BASS, S.J.J., concur. ¶ 41 WYRICK, J., concur in judgment. ¶ 42 CUNNINGHAM, MCCALL, and BASS as Special Justices in lieu of COMBS, C. J. who certified his disqualification, and GURICH, V.C.J., and KAUGER, J„ who certified their recusal.

1 . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

2 . Record on Accelerated Appeal, Tab- 7, Plaintiffs' Exhibit 1, trial judge's email-to counsel for the parties.

3 . 12 O.S. 2011 994:

A. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-parly claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment, decree, or final order as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of a final judgment, decree, or final order. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the final judgment, decree, or final order adjudicating all the claims and the rights and liabilities of all the parties is filed with the court clerk.

B. When a court has ordered a final judgment, decree, or final order under the conditions stated in subsection A of this section, the court may stay enforcement of that final judgment, decree or final order until the filing of a subsequent final judgment, decree or final order and may prescribe such conditions as are necessary to protect the interests of all parties to the action. If the court stays the enforcement of a final judgment, decree, or final order until the filing of a subsequent final judgment, decree, or final order, notice of the vacation or modification of the stay or of any condition that was imposed on the enforcement of the final judgment, decree, or final order shall be given to the parties affected by the stay or condition.

4 . Casey v. Casey, 2005 OK 13, n.5, 109 P.3d 345, 347; Liberty Bank and Trust Co. of Oklahoma City, N.A. v. Rogalin, 1996 OK 10, 912 P.2d 836, 838.

5 . In re Guardianship of Berry, 2014 OK 56, ¶34, n. 11, 335 P.3d 779, 790.

6 . Christian v. Gray, 2003 OK 10, 1145, 65 P.3d 591, 609 (review of Daubert order sought by certified interlocutory order was recast to extraordinary writ proceeding, and Court explained "it will not serve as a pre-trial reviewing court for orders adjudicating motions in li-mine."). Cf. Ellison v. Ellison, 1996 OK 64, 919 P.2d 1, 2 ("Evidentiary rulings during trial are reviewable when the subsequent judgment or appealable order is appealed"); Collier v. Reese, 2009 OK 86, 223 P.3d 966 (admissibility of evidence addressed in the context of an appeal where the order was an appealable interlocutory order); Martin v. Johnson, 1998 OK 127, ¶18, 975 P.2d 889, 894 (interlocutory order anterior to judgment may be reviewed on appeal from the judgment).

A ruling on a motion in limine is advisory and preliminary, and error is committed, if at all, when a ruling on the issue is made during the trial subsequent to adjudication of the motion in limine. Worsham v. Nix, 2006 OK 67, n. 6, 145 P.3d 1055, 1061. See also Middlebrook v. Imler, Tenny & Kugler M.D.'s, Inc., 1985 OK 66, 713 P.2d 572, 579, and the discussion at note 55 infra.

7 . Legal error may not be presumed from a silent appellate record, and absent a record affirmatively showing error this Court presumes that the trial court did not err. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, 497 (appeal dismissed because appellate record presents nothing for our review).

8 . Powers v. District Court of Tulsa County, 2009 OK 91, n. 24, 227 P.3d 1060, citing Harrison v. Harman, 1925 OK 937, 115 Okla. 40, 241 P. 476.

9 . See, e.g., Christian v. Gray, 2003 OK 10, V1I7-8, 65 P.3d 591, 597-598 (discussing evidentiary reliability based upon "scientific reliability” and Daubert’s four-part non-exhaustive test: 1. Can the expert's theory or technique be, or has it been, tested; 2. Has that theory or technique been subjected to peer review and publication; 3. Is there a known or potential rate of error ... and the existence and maintenance of standards controlling the technique’s operation; and 4. Is there widespread acceptance of the theory or technique within the relevant scientific community.).

10 . 12 O.S. 2011 651:

A new trial is a reexamination in the same court, of an issue of fact or of law or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of the party:

1. Irregularity in the proceedings of the court, juty, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial;

2. Misconduct of the jury or a prevailing party;

3. Accident or surprise, which ordinary prudence could not have guarded against;

4. Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice;

5. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property;

6. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law;

7. Newly-discovered evidence, material for the party applying, which could not, with reasonable diligence, have been discovered and produced at the trial;

8. Error of law occurring at the trial, and objected to by the party making the application; or

9. When, without fault of the complaining party, it becomes impossible to prepare a record for an appeal.

11 .12 O.S. 2011 1031:

The district court shall have power to vacate or modify its own judgments or orders within the times prescribed hereafter:

1. By granting a new trial for the cause, within the time and in the manner prescribed in Sections 651 through 655 of this title;

2. As authorized in subsection C of Section 2004 of this title where the defendant had no actual notice of the pendency of the action at the time of the filing of the judgment or order;

3. For mistake, neglect, or omission of the clerk or irregularity in obtaining a judgment or order;

4. For fraud, practiced by the successful party, in obtaining a judgment or order;

5. For erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the'proceedings;

6. For the death of one of the parties before the judgment in the action;

7. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending;

8. For errors in a judgment, shown by an infant in twelve (12) months after arriving at full age, as prescribed in Section 700 of this title; or

9. For taking judgments upon warrants of attorney for more than was due to the plaintiff, when the défendant was not summoned or otherwise legally notified of the time and place of taking such judgment.

12 . 12 O.S. 1981 317, (Repealed by Laws 1984, c. 164, 32, eff. Nov. 1, 1984), stated in part: "The court, may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding. ...”

13 . See, e.g., Cartwright v. Atlas Cheynical Industries, Inc., 1981 OK 4, 623 P.2d 606, 609-610 (Court discussed 12 O.S. 1031 and 317 [now repealed] and distinguished amendment of a . judgment roll pursuant to 317 and modification of a judgment pursuant to 1031).

14 . See, e.g., Stork v. Stork, 1995 OK 61, 898 P.2d 732, 736-737 (A nunc pro tunc order could be used to amend a judgment and supply an inadvertent clerical omission in recording a judicial act that actually took place, but a nunc pro tunc could not be used as a vehicle to review a judgment for legal error or as a means to enter a different judgment.); Ex parte Harris, 1947 OK CR. 1, 83 Olda.Crim. 280, 176 P.2d 508, 511 (quoting, a legal encyclopedia and stating "A nunc pro tunc entry of an order relates back and operates to make the order effective as of the date when it should have been entered.”); State ex rel. Oklahoma Bar Assn v. Cantrell, 1987 OK 17, n. X 734 P.2d 1292, 1294 (Opala, L, joined by Hargrave, V.C.J., Hodges and Simms, JJ„ concurring in part and dissenting in part, citations including Black’s Law Dictionary and explaining the relation-back doctrine is "a principle that an act done today is considered to have been done at an earlier time.” Black’s Law Dictionary, 1158 (5th ed. 1979)).

15 . See, e.g., Salyer v. National Trailer Convoy, Inc., 1986 OK 70, 727 P.2d 1361, 1363 citing Ye¡y v. Yery, 1981 OK 46, 629 P.2d 357, 363 (on a timely appeal from a court's order disposing of a 12 O.S. 1031.1 motion filed more than 10 days after the trial,court’s original ruling, the appellate review does not examine the original ruling or “original judgment" and the review is limited to the correctness of the trial court’s order denying 1031.1 relief); 12 OlS. Supp. 2015, Ch. 15, App. 1, Okla. Sup. Ct. R. 1.20 (b)(3) (defining a "final order” as including an order modifying or refusing to modify a judgment).

16 . 12 O.S. 2011 696.2 (D): The filing with the court clerk of a written judgment, decree or appealable order, prepared in conformance with Section 696.3 of this title and signed by the court, shall be a jurisdictional prerequisite to the commencement of an appeal. The following shall not constitute a judgment, decree or appealable order: A minute entry; verdict; informal statement of the proceedings and relief awarded, including, but not limited to, a letter to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order.

17 . LCR, Inc. v. Linwood Properties, 1996 OK 73, 918 P.2d 1388, 1393 (a trial court's order addressing a motion for “new trial" challenging a partial summary adjudication "is not addressed to a judgment, decree or appealable order, ... neither can it pass muster under the rubric of 12 O.S.1991 651 as a judicial response to a true new trial motion ... [and] may not hence be treated as an appealable ruling made upon a 651 or a 1031.1 motion.'1) (material omitted).

18 . 12 O.S. Supp.2013 1031.1:

A. A court may correct, open, modify or vacate a judgment, decree, or appealable order on its own initiative not later than thirty (30) days after the judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title has been filed with the court clerk. Notice of the court's action shall be given as directed by the court to all affected parties.

B. On motion of a parly made not later than thirty (30) days after a judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title has been filed with the court clerk, the court may correct, open, modify, or vacate the judgment, decree, or appealable order. If the moving party did not prepare the judgment, decree, or appealable order, and Section 696.2 of this title required a copy of the judgment, decree, or appealable order to be mailed to the moving party, and the court records do not reflect the mailing of a copy of the judgment, decree, or appealable order to the moving party within three (3) days, exclusive of weekends and holidays, after the filing of the judgment, decree, or appealable order, the motion to correct, open, modify, or vacate the judgment, decree, or appealable order may be filed no later than thirty (30) days after the earliest date on which the court records show that a copy of the judgment, decree, or appealable order was mailed to the moving party. The moving party shall give notice to all affected parties. A motion to correct, open, modify, or vácate a judgment or decree filed after the announcement of the decision on all issues in the case but before the filing of the judgment or decree shall be deemed filed immediately after the filing of the judgment or decree.

C. If more than thirty (30) days have passed since the filing of a judgment, decree, or appealable order, proceedings to vacate or modify the judgment, decree, or appealable order shall be by petition in conformance with Section 1033 of this title unless approved by all parties who have entered an appearance in the lawsuit.

D, The party that prevails in an action to vacate any judgment, decree or appealable order shall only be considered the prevailing party for the purpose of the award of costs, to include a reasonable attorney fee, if such party prevails on the merits in the underlying action.

19 . LCR, Inc. v. Linwood Properties, 1996 OK 73, 918 P.2d 1388, 1393.

20 . Smith v. City of Stillwater, 2014 OK 42, ¶10, 328 P.3d 1192, 1196.

21 . Smith v. City of Stillwater, at ¶10, 328 at 1196, emphasis added and material omitted.

22 . 12 O.S.2011 1031, note 11, supra.

23 . LCR, Inc. v. Linwood Properties, 1996 OK 73, 918 P.2d 1388, 1393.

24 . The exercise of a discretionary power by trial judge is not one without fixed principles by which its correctness may be determined upon appellate review. Christian v. Gray, 2003 OK 10, ¶45, 65 P.3d 591, 609.

25 . We have explained an order appealable by right when the order on a motion to partially vacate a decision is analogous or the functional equivalent to an order granting a new trial. Chemco-Products, Inc. v. Moley Produce Co., Inc., 1980 OK 122, 615 P.2d 300, 301.

26 . 12 O.S. 2011 653 (C): “A motion for new trial filed after the announcement of the decision on all issues in the case but before the filing of the judgment or decree shall be deemed filed immediately after the filing of the judgment or decree.”

27 . 12 O.S. Supp. 2016, Ch. 15, App. 1, Okla. Sup. Ct. R. 1.22 (c)(1) states in part: “The right of a party to perfect an appeal from a judgment or final order is not conditioned upon the filing of a motion for new trial."

28 . 12 O.S.2011 991:

(a) The right of a party to perfect an appeal from a judgment, order or decree of the trial court to the Supreme Court shall not be conditioned upon his having filed in the trial court a motion for a new trial, but in the event a motion for a new trial is filed in the trial court by a party adversely affected by the judgment, order or decree, no appeal to the Supreme Court may be taken until subsequent to the ruling by the trial court on the motion for a new trial. This provision shall not apply, however, to an appeal from an order of the Corporation Commission.

(b) If a motion for a new trial be filed and a new trial be denied, the movant may not, on the appeal, raise allegations of error that were available to him at the time of the filing of his motion for a new trial but were not therein asserted.

29 . See, e.g., Slagell v. Slagell, 2000 OK 5, ¶¶7-8, 995 P.2d 1141, 1142 (appeal dismissed because assignments of error in the appeal were not raised by that party’s motion for new trial and Court relied in part on 12 O.S. 991(b)); City of Broken Arrow v. Bass Pro Outdoor World, L.L.C., 2011 OK 1, ¶11, 250 P.3d 305, 311 (motion for new trial acts to limit the issues reviewed on appeal to those raised by that motion).

30 . In re Marriage of Murphy, 2010 OK CIV APP 1, ¶6, 225 P.3d 820 (published by order of the Court of Civil Appeals).

31 . Culpepper v. Lloyd, 1978 OK 90, 583 P.2d 500, and Frey v. Independence Fire and Cas. Co., 1985 OK 25, 698 P.2d 17.

32 . Weeks v. Wedgewood Village, Inc., 1976 OK 72, 554 P.2d 780.

33 . 12 O.S. Supp. 2013 Ch. 2, App. Rules for District Courts of Oklahoma, Rule 13(b):

b. Any party opposing summary judgment or summary disposition of issues shall file with the court clerk within fifteen (15) days after service of the motion a concise written statement of the material facts as to which a genuine issue exists and the reasons for denying the motion; provided, however, that a responsive statement shall not be due from a party earlier than forty-five (45) days after service of the first summons by, or upon, that party. Unless otherwise ordered by the court, the adverse party shall attach to, or file with, the statement evidentiary material justifying the opposition to the motion, but may incorporate by reference material attached to or filed with the papers of another party. In the statement, the adverse party or parties shall set forth and number each specific material fact which is claimed to be in controversy and reference shall be made to the pages and paragraphs or lines of the evidentiary materials. All material facts set forth in the statement of the movant which are supported by acceptable evidentiary material shall be deemed admitted for the puipose of summary judgment or summary disposition unless specifically controverted by the statement of the adverse party which is supported by acceptable evidentiaiy material. If the motion for sum-maty judgment or summary disposition is granted, the parly or parties opposing the motion cannot on appeal rely on any fact or material that is not referred to or included in the statement in order to show that a substantial controversy exists.

34 .12 O.S. Supp. 2013, Ch. 2, App. Rules for District Courts of Oklahoma, Rule 13(d):

d. Should it appear from an affidavit of a party opposing the motion that for reasons stated the party cannot present evidentiary material sufficient to support the opposition, the court may deny the motion for summary judgment or summary disposition without prejudice or may order a continuance to permit affidavits to be obtained or depositions to be-taken or discovery to be had or may make such other order as is just. A motion filed pursuant to this paragraph shall not be deemed a consent to the exercise by the court of jurisdiction over the party, or a waiver of the right to file a motion to dismiss the action.

35 . Weisgram, 528 U.S. at 456, 120 S.Ct. 1011, quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 897, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

More than twenty years ago, one author opined that courts should generally refuse to grant the plaintiff additional opportunity to present a newly retained expert at trial if the court excludes the original expert. Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L.Rev. 1345, n. 155, 1375 (1994) citing Tabatchnick v. G.D. Searle & Co., 67 F.R.D. 49 (D.N.J.1975) (refusing to permit testimony by expert retained by plaintiffs after trial began when plaintiffs should have known that testimony by other expert retained prior to trial was insufficient as to causation).

36 . Of course, restrictions on when matters are presented to the trial court may arise from authority other than Rule 13. For example, Rules for District Courts of Oklahoma, 12 O.S. Supp. 2016, Ch. 2, App., Rule 5, Pretrial Proceedings, (C) (Scheduling): ("As soon as any civil case is at issue, the Court may schedule any conference it deems appropriate and enter a scheduling order which establishes, insofar as feasible, the time: ... 2. to file and hear motions....").

37 . 12 O.S'. 2011 651(7), note 10 supra.

38 . Savage v. Burton, 2005 OK CIV APP 106, ¶13, 125 P.3d 1249, 1253 (published by order of the Court of Civil Appeals), citing Franks v. Nimmo, 796 F.2d 1230 (10th Cir.1986). See also Kutz v. Deere & Co., 2015 OK CIV APP 6, ¶9, 342 P.3d 1018, 1021 (published by order of the Court of Civil Appeals) and quoting Tortorelli v. Mercy Health Center, Inc., 2010 OK CIV APP 105, ¶30, 242 P.3d 549, 561 (published by order of the Court of Civil Appeals) and citing Ishmael v. Andrew, 2006 OK CIV APP 82, ¶16, 137 P.3d 1271, 1276 (published by order of tire Court of Civil Appeals).

39 . Compare Grogan v. KOKH, LLC, 2011 OK CIV APP 34, ¶18, 256 P.3d 1021, 1030 (Approved for publication by order of the Oklahoma Supreme Court) (a credibility determination is a function of a jury and not a judge, regardless whether the judge is ruling on a motion for summary judgment or for a directed verdict) with Rating v. Municipal Utility Board of Pryor, 1999 OK CIV , 977 P.2d 1142 (published by order of me Court of Civil Appeals), me court stated some "federal summary judgment standards ... are not specifically applicable in Oklahoma appellate review of summary judgments." Id. at ¶8, 977 P.2d at 1144, citing Weldon v. Dunn, 1998 OK 80, ¶22, 962 P.2d 1273, 1283 (Opala, J„ dissenting) and opinions from" Alabama, California, Indiana, Kentucky, and Texas.

40 . Reeds v. Walker, 2006 OK 43, 157 P.3d 100.

41 . State, ex rel. Pruitt v. Native Wholesale Supply, 2014 OK 49, ¶11, 338 P.3d 613, 618

42 . American Biomedical Group, Inc. v. Techtrol, Inc., 2016 OK 55, ¶2, 374 P.3d 820, 822. See also Horton v. Hamilton, 2015 OK 6, ¶8, 345 P.3d 357, 360 (summary judgment settles only questions of law).

43 . Samson Investment Co. v. Chevaillier, 1999 OK 19, ¶4, 988 P.2d 327, 329.

44 . Christian v. Gray, 2003 OK 10, ¶44, 65 P.3d at 609.

45 . Towne v. Hubbard, 2000 OK 30, n. 41, 3 P.3d 154, 163 ("For one to enjoy the opportunity of meaningful appellate review, another stage of proceedings protected by due process, it is essential that the facts relied upon by the trial court appear in a record that is available in one's quest for corrective relief.”).

46 . For example, both the United States Court of Appeals for the Seventh and Eight Circuits have upheld a judge's sua sponte Daubert decision. Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998) ("we have not required that the Dau-bert inquiry take any specific form and have, in fact, upheld a judge’s sua sponte consideration on the admissibility of expert testimony”), cert. denied, 526 U.S. 1065, 119 S.Ct. 1456, 143 L.Ed.2d 542 (1999), citing O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir.1994); Miller v. Baker Implement Co., 439 F.3d 407, 413 (8th Cir.2006) ("sua sponte consideration of the .admissibility of expert testimony is permissible so long as the court has an adequate record on which to base its ruling”).

47 . Covel v. Rodriguez, 2012 OK 5, ¶9, 272 P.3d 705, 710 (by failing to make a timely Daubert objection the alleged error was waived on appeal in the absence of fundamental error). Cf. Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1349 (11th Cir. 2003) (a court may decline to consider an untimely Daubert motion); Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir.2001) ("[Bjecause Daubert generally contemplates a 'gatekeeping' function, not a 'gotcha' [fjunction, [our caselaw] permits a district court to reject as untimely Daubert motions raised late in the trial process; only in rare circumstances will such tardy motions ... be warranted.”).

48 . See discussion herein of Rule 13 (c) and required notice to parties when a Daubert adjudication occurs sua sponte.

49 . Jahn v. Equine Servs., PSC, 233 F.3d 382 (6th Cir. 2000).

50 . Jahn, 233 F.3d at 387.

51 . Day v. State, 2013 OK CR 8, ¶4-9, 303 P.3d 291, 295-297; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (A trial judge must possess the discretion to avoid unnecessary "reliability” proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and the discretion to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises.).

52 . John, 233 F.3d at 393.

53 . In re Lotice T. Wallace Revocable Trust, 2009OK 34, ¶7, 219 P.3d 536, 538.

54 . Tucker v. Cochran Firm-Criminal Defense Birmingham L.L.C., 2014 OK 112, n. 63, 341 P.3d 673, 688.

55 . Where, on the judgment's reversal, a cause is remanded, it returns to the trial court as if it had never been decided, save only for the settled law of the case. Smedsrud v. Powell, 2002 OK 87, ¶13, 61 P.3d 891, 896. A Daubert issue may be raised by a pretrial motion in limine. Christian v. Gray, 2003 OK 10, ¶48, 65 P.3d 591, 610. A pretrial motion in limine excluding evidence does not conclusively decide an issue of admissibility because the issue must be raised during a subsequent trial. Middlebrook v. Imler, Tenny & Kugler M.D.’s, Inc., 1985 OK 66, 713 P.2d 572, 579 (party aggrieved by an order in limine should raise the issue at the appropriate time during the trial, either by objecting when the challenged evidence or testimony is admitted .or by making an offer of proof of the excluded matter); Badillo v. Mid Century Ins. Co., 2005 OK 48, n. 16, 121 P.3d 1080, 1103 (same).