OSCN Found Document:SHAWAREB v. SSM HEALTH CARE OF OKLAHOMA
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
¶1 The two primary issues raised on certiorari are whether (1) the trial court's summary judgment procedure created reversible legal error, and (2) an expert medical opinion was necessary for plaintiffs on summary judgment. Plaintiffs argue an expert is not necessary to explain a hospital's standard of care and causation of plaintiff's injury when (1) a hospital employee gave plaintiff, as a hospital patient, a cup of hot water to make hot tea, (2) the patient was receiving narcotic therapy altering her ability to make a cup of hot tea in a safe manner, (3) this was the first cup of hot water received by patient during her hospitalization, (4) the employee fixed a lid securely on the top of the cup, (5) the employee did not assist the patient with the lid, and (6) upon the patient receiving the cup and attempting to remove the lid the water spilled on the patient causing deep second and "potential third degree" burns to patient's thigh.
¶2 We hold the summary judgment must be reversed due to a prejudicial procedural error in the trial court. The trial court granted defendants' motion to strike plaintiffs' witness list when the list did not contain the name of plaintiffs' expert witness used by plaintiffs when responding to defendants' motion for summary judgment. The trial court ruled plaintiffs failed to have an expert witness necessary for a medical negligence action, and then granted summary judgment to defendants. The trial court's ruling granting the motion to strike and summary judgment occurred eight days after the motion to strike was filed. Oklahoma District Court Rule 4(e) allows fifteen days for a party to respond to a motion to strike. We need not adjudicate whether a medical expert's opinion is necessary to explain the standard of care for a hospital or the effect of narcotics on the patient's ability to use hot water in the circumstances presented by the parties in this case. However, we explain the case as presented by the parties for the context of the motion to strike.
¶3 Lamees Shawareb was a patient in the Bone and Joint Hospital at St. Anthony for postoperative care after her knee surgery. This was her second knee surgery at the same hospital where she had obtained favorable results, except for one incident which occurred after her second surgery on the day she was discharged from the hospital. She was handed a cup of hot water by a hospital employee and when Lamees tried to remove the lid from the cup of hot water it spilled on her thigh causing burns. She had not previously been given a cup of hot water to make tea during her hospitalization or warned of the water's temperature when the cup was handed to her.
¶4 The record on appeal states Lamees was "seen at Mercy" the day after she was burned, and she was treated at "Baptist Burn Center" for "deep second degree burns and potential third degree burns" after her discharge from Bone and Joint Hospital.1 Lamees Shawareb and her spouse, Farouk Shawareb, brought an action in District Court alleging the hospital and its employees failed to properly monitor a hot beverage machine, hot beverages were in excess of an acceptable and reasonable temperature for the public and a patient on narcotic therapy, and scalding hot water was served to Lamees without warning her concerning the water's temperature.
¶5 Plaintiffs state the business which monitored the vending machines at the hospital "received a complaint that the liquid coffee machines at St. Anthony's were too hot and needed to be tuned down." An employee of the business servicing the coffee machine testified concerning a work order he received in March of 2016 to make a service call at the hospital because "liquid coffee machines may be too hot, need to be turned down." Further, a comment was made to him from an employee in his dispatch center stating "several people have been burnt by machine." A photocopy of poor quality is attached to plaintiffs' response, and it appears to be a work order identified by the employee and stating "several people have been burnt by the machine."
¶6 The vending machine employee testified that while documents had been previously created relating to servicing a machine's temperature setting there was no longer any document that he knew of showing his test results for the vending machine in March 2016 because the business had been "transitioning from paper to internet." He testified that while he then currently takes video of a machine's temperature settings during servicing no such video was available for when he serviced the machine after Lamees received her burns. He testified his recollection was that the machine was checked "and it was already at the minimum so there was no action [taken at that time to change the temperature]." He testified he serviced the machine again in November 2017 and it was operating at the correct temperature. The vending machine company was a party in the trial court proceeding.
¶7 The hospital and its employee filed a combined motion for summary judgment. Defendants stated a nurse assistant (or "nurse aid") brought Lamees a cup of hot water at Lamees' request to make a cup of tea, and Lamees spilled the hot water on herself. Plaintiffs filed a response to defendants' motion for summary judgment on October 4, 2018. Plaintiffs filed their "final witness and exhibit list" on Wednesday, October 17, 2018, and it did not include the name of plaintiffs' expert they relied on in their response to defendants' motion for summary judgment. On October 26, 2018, defendants filed both a motion to strike plaintiffs' expert witnesses and a reply for summary judgment.
¶8 Defendants' motion to strike plaintiffs' expert witnesses was based upon: (1) Plaintiffs did not name this witness in plaintiffs' final witness and exhibit list filed October 17th; (2) No expert witness was named in this filing; (3) The trial court's previously entered scheduling order required preliminary list of witnesses and exhibits be exchanged no later than 60 days prior to pretrial conference (60 days prior to November 14, 2018); and (4) The final exchange of witness lists was required "30 days prior to Pretrial" conference.2 The scheduling order states in the same numbered paragraph setting deadlines for the witness lists that "additional witness/exhibits shall be stricken by the Court, absent extraordinary circumstances." This scheduling order states the pretrial conference is on November 14, 2018. The sole objection of defendants to plaintiffs' expert testifying at trial was plaintiffs' failure to include the name of plaintiffs' expert on the final witness list filed by plaintiffs within the time limit set by the scheduling order.3 Defendants argued "Plaintiffs submitted their Final Witness and Exhibit List two days late on October 17, 2018."4
¶9 Defendants replied to plaintiffs' response on summary judgment. They argued plaintiffs' expert, a "certified nurse assistant" did not possess authority to prescribe or administer narcotics and was "clearly not qualified to render the neurologic and narcotics-related opinions relied upon by Plaintiffs."5 They argued the name of this witness was not included in plaintiffs' final list of witnesses and exhibits. Defendants asserted plaintiffs did not produce any qualified expert testimony to support their claims. They stated Lamees "had not yet taken her narcotics at the time she requested the hot water."6 They argued "It is uncontroverted that Mrs. Shawareb was not under the influence of narcotics at the time she spilled the hot water."7 Further: "Absent a qualified physician expert who can testify about the effects of narcotics on a person's neurological status, Plaintiffs cannot controvert these facts, and her arguments lack adequate evidentiary support."8
¶10 Defendants expressly stated on summary judgment "the affirmative defense of assumption of the risk is dispositive of this matter."9 Assumption of the risk is a defense raising a fact issue decided by a jury as required by the Oklahoma Constitution.10 The two well-known "exceptions" to submitting the defense to a jury are (1) if "the plaintiff fails to present evidence showing primary negligence on the part of the defendant, or (2) if there are no material facts in dispute, and reasonable minds exercising fair and impartial judgment could not reach differing conclusions."11 The first exception, "lack of primary negligence" exception, is not, in a strict sense, an exception for applying or adjudicating the affirmative defense.12 Rather, this exception is the fundamental premise underlying all negligence suits stating a defendant is not liable without primary negligence being shown.13 In other words, the affirmative defense need not be adjudicated by a jury when the negligence of the defendant is not shown by the plaintiff as required for the procedural context, which is summary judgment in the matter before us. The second exception, "no material facts in dispute," relates to no dispute on the facts relating to the assumption of risk affirmative defense, as opposed to the facts relating to primary negligence.14 The trial court focused on this first argument and examined whether a negligence cause of action had been shown by plaintiffs.
¶11 A summary judgment process requires the parties to raise pleaded and unpleaded uncontroverted material facts on the material legal issues relating to whether a single inference is created in favor of the movant for a judgment on the merits.15 Defendants challenged plaintiffs' action and argued no primary negligence of defendants was shown, and in the summary judgment context this challenge argued that plaintiffs' negligence cause of action failed to possess one or more of its required elements.16
¶12 For example, defendants argued and the trial court expressly ruled "Plaintiffs failed to establish a duty on the part of Defendants as to an individual in the same or similar circumstances." We have noted the duty element in the context of a negligence action against a hospital alleging improper medical care: "A hospital has the duty to provide for the care and protection of its patients, and in the performance of this duty the hospital is required to exercise such reasonable care as the patient's known condition requires."17 Hospital does not dispute the existence of this duty in a general sense. Hospital argues that if plaintiffs' action is judicially construed as based upon an alleged breach of a medical professional standard relating to (1) a patient's pain management therapy, or (2) hospital-provided food and beverage service, or (3) a combination of both of pain management therapy and food services; then plaintiffs must provide a qualified expert witness testifying on the nature of this duty and standard by the hospital.
¶13 Hospital indicates a qualified medical expert must testify on the causation element in the negligence action and link the alleged breach of duty to the cause of plaintiffs' injury. Plaintiffs expressly raise the issue of Lamees' exposure to pain medication as a causal element in her negligence action. We explained in Christian v. Gray,18 causation of a person's legal injury resulting from exposure to a substance is usually analyzed in terms of both (1) general causation, which relates to whether a substance is "capable of causing a particular injury in the general population," and (2) specific causation, which "is whether that substance caused the particular individual's injury."19 We have recently repeated specific causation is the cause of the particular individual's injury.20 There is no discussion before us from an expert identifying typical, but not necessarily required, information to support a cause of action based upon a prescribed drug,21 such as long-acting or short-acting narcotics, narcotic metabolization, half-lives of narcotics, or the effects of named and prescribed narcotics on Lamees during hospitalization at the time of her injury.22
¶14 Plaintiffs rely upon the statement of their expert witness, an argument no medical expert witness is necessary, and an argument based upon an alleged improper procedure by the trial court. They assert their expert possessed "just as much training and experience" as the hospital employee who served Lamees the hot water. They also rely upon one exception to the necessity of providing an expert's opinion when the fact to be shown "lies within the common knowledge of lay persons."23 Plaintiffs' arguments are essentially that (1) a lay jury has a common knowledge of opiates and their properties on individuals as well as the steps for making hot tea, and (2) Lamees will testify on the effect of hospital-provided pain medication upon her ability to safely make a cup of hot tea when hot water was served to her in the manner used by the hospital's employee.
¶15 Upon review of the appellate record and arguments made by the parties on certiorari, we conclude an error in the trial court's procedure when rendering summary judgment requires a reversal of judgment with remand to the District Court for further proceedings without this Court adjudicating issues relating to the necessity of an expert witness for plaintiffs' cause of action.
¶16 Plaintiffs state on certiorari the District Court ruled on the defendants' motion to strike six days after it was filed without allowing plaintiffs fifteen days to respond to the motion in violation of District Court Rule 4(e). The motion to strike plaintiffs' experts was filed October 26, 2018, the hearing on defendants' motion for summary judgment occurred on November 3, 2018, and the motion to strike was granted at the same hearing. Rule 4(e) provides as follows.
e. Any party opposing a motion, except those enumerated in Section c above, shall serve and file a brief or a list of authorities in opposition within fifteen (15) days after service of the motion, or the motion may be deemed confessed.
12 O.S.Supp.2013, Ch. 2, App., Rules of the District Courts, Rule 4(e).
Rule 4(e) references motions in Rule 4(c) as outside the scope of Rule 4(e), but a motion to strike plaintiffs' experts is not listed as one of the motions in Rule 4(c).24 The fifteenth day after October 26, 2018, was Saturday November 10, 2018. Plaintiffs filed an "Amended Final Witness and Exhibit List" on Thursday, November 8, 2018, and included the expert plaintiffs used in their response to defendants' motion for summary judgment. This filing appears to have been without express permission of the trial court.
¶17 Two challenges to plaintiffs' expert were made by defendants with two requests to strike and they must be analyzed separately. The first is defendants' separately filed motion to strike on October 26, 2018,and this motion was for the purpose of testimony occurring at a trial. The sole basis for the motion to strike was plaintiffs' failure to place the name of their expert on their filed expert list. The second request to strike was part of defendants' reply on summary judgment which was also filed on October 26, 2018. Defendants' motion to strike plaintiffs' expert became a part of a motion incorporated into the summary judgment procedure by defendants' reply.
¶18 Defendants' reply on summary judgment stated plaintiffs' expert had not been endorsed as an expert for trial and as a result the expert's "declaration is not what the evidence will be at trial, and the declaration is inadmissible."25 Defendants' reply combined this failure to endorse as a reason to strike with an additional assertion "such declaration must be stricken" because plaintiffs' expert was no expert. Defendants argued plaintiffs could not defeat summary judgment sought by defendants because of the absence of an expert for plaintiffs. Their argument relied on the rule that in responding to a motion for summary judgment a plaintiff need only show evidence of disputed material facts that, if proven at trial, would allow plaintiff to succeed on plaintiff's claim,26 but plaintiffs could not succeed without an expert witness.
¶19 We address first the summary judgment challenge to the expert's qualifications and the defendants' request to strike the expert's statement as such relates to the procedure used in the trial court. A challenge to a witness testifying as an expert includes a factual inquiry including an examination of the knowledge, skill, experience, training, and education possessed by the witness.27 An opinion may be provided by an ordinary person whose experience or perception provides him or her with knowledge which concerns some matter involved in the trial,28 and a trial court adjudicates both a lay person's experience and an expert's experience (and any other factors) qualifying the person as an expert and whether expert's opinion assists the trier of fact.29
¶20 It is well-settled that the qualification of an expert witness is generally within the sound discretion of the trial court, and the exercise of discretion will not be reversed on appeal except when an abuse of discretion occurs.30 Appellate review to determine an abuse of a trial court's discretion requires an actual antecedent exercise of that judicial discretion by the trial court on the issue reviewed. We do not make first instance determinations of disputed non-jurisdictional law issues or contested fact issues.31 When looking first to the trial court's judgment and construing it to determine if judicial discretion was actually exercised on the issue we are asked to review, we examine the clear and unambiguous language of the instrument, since such language is controlling.32
¶21 The clear language used in the trial court's judgment shows no exercise of judicial discretion on defendants' challenge to the qualifications of plaintiffs' expert witness. The summary judgment order states in part the following.
1. Plaintiffs did not endorse .., [name of the witness] as an expert witness to testify at trial; therefore her declaration is stricken as inadmissible.
2. Plaintiffs have not endorsed any expert witnesses. As a result, Plaintiffs have no qualified medical expert testimony to support their claims.
3. Plaintiffs have failed to provide sufficient evidence in support of their "medical negligence" action against Defendants.
The trial court order grants defendants' request to strike plaintiffs' expert, but solely on the ground the name of the witness was not on plaintiffs' filed list of witnesses. The trial court did not adjudicate whether plaintiffs' expert was qualified as an expert, and we may not give that issue a first-instance adjudication.
¶22 A party must be afforded a reasonable opportunity to respond to an opposing party's motion for summary judgment.33 During the summary judgment hearing, plaintiffs' counsel affirmatively requested additional time "to list somebody specifically" as a witness.34 Plaintiffs' counsel also made the argument plaintiffs need not use in a summary judgment proceeding the actual expert witness plaintiffs would also use at trial, and counsel could pick which expert the plaintiffs would use for summary judgment and which expert(s) for trial. Plaintiffs' counsel also argued it was permissible to designate experts without a name but by professional degree or certification such as R.N. or M.D., and submit the name to the court and opposing counsel at a later date.
¶23 Plaintiffs' counsel argued discovery was ongoing and he had requested a deposition of one of the hospital's nurses. Defendants' counsel at the hearing stated he had no recollection of the deposition request and a discussion on the subject. He agreed he received a written request from plaintiffs' counsel the day before the hearing. Plaintiffs' counsel stated he had discussions relating to additional discovery with defense counsel for the vending machine company.
¶24 Counsel for the hospital argued the interpretation of District Court Rule 13 by plaintiffs' counsel was "fundamentally unfair" to a defendant who had met the pretrial deadlines set by the trial court. While agreeing plaintiffs could select any expert witness they wanted, he argued plaintiffs must pick at least one expert witness in a timely manner for a party's list of witnesses at trial and also place this name in a timely filed witness list. Defendants argued plaintiffs could not use an expert witness for plaintiffs' response on summary judgment if no expert witness was listed by name as an expert witness at trial.
¶25 During the hearing the trial court stated to plaintiffs' counsel the court was striking the affidavit of plaintiffs' expert "for purposes of this Motion for Summary Judgment" because she was "not timely listed in compliance with the Scheduling Order and no request formally having been previously submitted to the Court." We construe the language referencing a formal request as no previous written request by counsel filed with the court. Some motions may be made by an oral motion in court pursuant to 12 O.S. § 2007, 35 however District Court Rule 5 (C), Pretrial Proceedings, states in part: "The scheduling order shall issue as soon as feasible after the case is at issue. A schedule shall not be modified except upon written application by counsel and by leave of the judge assigned to the case upon a showing of good cause.36 There is nothing in the appellate record before us suggesting that plaintiffs' counsel followed this rule.
¶26 The purpose of the summary adjudication procedure is to avoid unnecessary jury trials,37 and narrow the scope of a subsequent trial by a pre-trial identification of non-triable fact issues.38 Generally, a plaintiff has a right to select which witnesses to use39 in support of his or her case, subject of course to the usual restrictions as to evidence and witnesses.40 The issue in this appeal is not what plaintiffs indicated at the hearing, i.e., a limitation on a plaintiff's ability to call and present witnesses selected by plaintiff. Neither is the issue what defendants indicated at the hearing, i.e., a plaintiff failing to follow a scheduling order, failing to seek a written application for additional time, and attempting to control the judicial docket. Clearly, a trial court may enforce its pretrial order by excluding a trial witness not listed on its pretrial order.41 The issue is a trial court simultaneously ruling on a motion to strike witnesses and a motion for summary judgment when the merits of the latter motion were based upon the former, and the date of the simultaneous ruling occurred when the opposing party had not responded to the motion to strike but still possessed time to do so pursuant to a Uniform District Court Rule.
¶27 The trial court made the motion to strike the expert witness a part of the summary judgment process when the court used the motion to strike as a basis for adjudicating no expert witness statement was submitted by plaintiffs on summary judgment. A flaw with using this procedure is: (1) The trial court granted the motion eight days after it was filed when plaintiffs possessed a Rule 4(e) fifteen days to respond to the motion, and (2) The trial court used this procedure as a basis for stating plaintiffs' failed to provide facts in support of their cause of action, and then granted a judgment on the merits to defendants based upon the court's action granting the motion to strike.
¶28 In Andrew v. Depani-Sparkes,42 a summary judgment was granted to a defendant prior to the trial court's Daubert hearing on excluding plaintiffs' experts. Defendants' motion for summary judgment was based upon excluding one of plaintiffs' experts on the issue of causation.43 We held: "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."44 The trial court used the principle of Daubert and its progeny as a basis for granting summary judgment prior to the scheduled hearing on the Daubert issue. In our case today, the District Court granted summary judgment to defendants on the basis of a motion when on the date of summary judgment hearing the plaintiffs still had an opportunity to respond for an additional seven days.
¶29 What we said in Andrew v. Depani-Sparkes, applies herein as well: "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."45 A core element is an opportunity to be heard as well as notice of the judicial altering event.46 Plaintiffs' petition in error and petition for certiorari raised their lack of an opportunity to respond to the motion to strike. Defendants responded to this argument on certiorari and stated the trial court had discretion to enforce its scheduling order. Whether a party's procedural due process right was violated by a judicial procedure is reviewed by this Court de novo,47 and we may review the issue although an appellant has failed to preserve the error in the lower tribunal.48
¶30 Procedural error may be harmless for the purpose of appellate review, and probability of a change in the outcome of a lawsuit is the test of prejudice this Court has long employed when analyzing alleged errors of practice and procedure.49 There is no doubt the failure to provide plaintiffs their rule-mandated time to respond to the motion to strike was prejudicial when the trial court used its ruling on the motion to strike as a basis for granting summary judgment on the merits. A party's reasonable opportunity to respond on summary judgment includes "a reasonable opportunity to present all material made pertinent to such a motion by the rules for summary judgment," and a failure to provide this opportunity is reversible error.50
¶31 The petition for certiorari to the Court of Civil Appeals was previously granted. The opinion of the Court of Civil Appeals is vacated, the judgment of the District Court is reversed, and the matter is remanded to the District Court for further proceedings consistent with this opinion.
¶32 CONCUR: GURICH, C.J.; DARBY, V.C.J.; KAUGER, WINCHESTER, EDMONDSON, COLBERT, and COMBS, JJ.
¶33 DISSENT: KANE, and ROWE, JJ.