Andrew v. Depani-Sparkes

Wyrick, J.,

concurring in judgment:

¶ 1 Briana Andrews was born with a shoulder injury that has left her with permanent, debilitating nerve damage. Briana’s parents brought suit alleging that Briana’s injury was caused by the negligence of the medical professionals who delivered her. They claim the doctor negligently delivered Briana using techniques that injured her shoulder, and that Mercy Hospital’s nurses negligently administered too much of a labor-inducing drug, causing intense contractions that contributed to the injury.

¶2 The district court concluded that the Andrews lacked evidence that Mercy’s nurses had- contributed to Briana’s injury, and accordingly granted' summary judgment in favor of Mercy. The Andrews appealed, and we directed them to show cause why the order granting summary judgment was immediately appealable, given that it resolved fewer than all the claims in the case. After both parties responded urging us to assume jurisdiction over the case, the majority concludes that we have jurisdiction because the claim against the nurses arises out of a different “transaction or occurrence” than the claim against the doctor.

¶8 I agree that we have jurisdiction to hear the appeal, but not because the claim against the Mercy nurses and the claim against the doctor arise out of different transactions or occurrences. They do not. Rather, we have jurisdiction because the decision being appealed resolved all claims against Mercy and is therefore a “final judgment” appealable pursuant to 12 O.S. 994.1 1 write separately to explain why the transaction-or-occurrence test is no longer determinative of our authority to hear an appeal like this.

¶ 4 I also write separately because I disagree with the majority’s conclusion that the district court erred in granting summary judgment without considering the testimony of an expert witness whose testimony was excluded after a Daubert objection. This conclusion is both unnecessary to the judgment and incorrect. The district court’s exclusion of the expert’s testimony may have been procedurally unusual, but it was not legally deficient.

I.

¶ 5 Where a final judgment, decree, or final order has been entered resolving one but fewer than all claims or parties, the district court has authority to certify the decision for immediate appeal under 12 O.S. 994(A). Here, judgment has been entered for Mercy, and the district court has made the requisite certifications, but our precedent requires that we satisfy ourselves that certification was appropriate.2 This inquiry has two components. First, we review de novo wheth*226er the “final judgment” is in fact a judgment.3 Second, we review for abuse of discretion the district court’s certification that there is “no just reason for delay” of the appeal.4

¶ 6 As to whether a “judgment” exists, prior to the enactment of 994,5 we looked to see whether the lower court’s decision actually resolved an “entire cause of action,”6 which we determined by looking to see whether it resolved all claims arising “from the same transaction or occurrence.”7 This was true even where a decision resolved all claims against one of multiple parties.

¶ 7 For example, in Patmon v. Block,8 we examined a case not dissimilar to this one under the law as it existed prior to the statute. There, a patient brought suit against both her doctors and the hospital, alleging that the doctors committed malpractice and that the hospital negligently hired and credentialed its staff. When summary judgment was entered for the hospital, resolving all claims against it, on appeal we inquired into whether the claims against the hospital arose from the same transaction or occurrence as the claims against the doctors, concluding that the claims were “clearly distinct causes of action founded on separate consecutive rather than concurring transactions or wrongs.”9 Plainly, “cause of action” was defined not by parties, but by the origin of the claims.10

¶ 8 The enactment of 994’s predecessor, 12 O.S.1991 1006, changed this. The Bar Committee’s comment to the new statute specifically noted that, “[wjhere there are multiple parties and a claim as to one of them has been fully adjudicated, the court may direct the filing of a separate judgment under subsection (A) as to that party although the claims by or against the other parties arose out of the same transaction or occurrence.”11 This was a sea change with respect to our jurisdictional analysis. In a case like this one, we no longer needed to look beyond the final judgment, decree, or final order to satisfy ourselves that an entire cause of action has been resolved, i.e., by applying the transaction-or-occurrenee test. We instead needed only to review the district court’s discretionary call as to the appropriateness of immediate review.12 This is because what used to be “non-final adjudications” over which we lacked jurisdiction — i.e., those decisions resolving all claims against a party, but not an entire “cause of action” — were now consid*227ered “final judgments” over which we have jurisdiction.13 As a result, in the years since the enactment of the statute, we have consistently viewed a judgment that resolves all claims against a party as final and appeal-able, and we have not typically inquired in such cases as to whether the claims against that party arose out of the same transaction or occurrence as claims that remained pending against other parties.14

¶ 9 Because the summary judgment in this case resolved all claims against Mercy and can thus qualify as a “final judgment” for purposes of 994, all we need to do is ensure the district court did not abuse its discretion in finding “no just cause for delay.” To do so, we look to “1) the interrelationship or overlap among the various legal and factual issues involved in the advanced and pending claims; and 2) the equities and efficiencies implicated by the requested piecemeal review.”15 Given that the district court and all parties are of the opinion that the litigation is best served by an immediate appeal of the judgment against Mercy, and given that the time has passed to concern ourselves with conserving judicial resources by avoiding piecemeal appeals, I cannot say that the district court abused its discretion in concluding that there was “no just cause for delay” of the appeal. Thus, I agree with the majority’s conclusion that the appeal can proceed.

¶ 10 I note, however, that the transaction- or-occurrenee test under 994 has confused litigants and judges for as long as we have imposed it — probably because it does not obviously flow from the text of 994.16 This case presented us with an opportunity to unmud-dy the waters, but I fear we have done the opposite by (1) insisting that the transaction- or-occurrence test applies, and (2) concluding that the test is satisfied when, under the plain meaning of “transaction or occurrence,” the claim against Mercy and the claim against the doctor arise out of the same transaction or occurrence: the delivery of Briana Andrews.

¶ 11 The verbal gymnastics the parties employ in order to deny the common origin for these claims illustrate the point. Mercy divides the occurrence into two parts: (1) everything that occurred prior to the “crowning” stage of delivery, and (2) everything that happened after17 — a splitting of hairs that renders the transaction-or-occurrenee test virtually meaningless.- The Andrews, meanwhile, concede an “overlap” in the time periods giving rise to their suit, admitting that both the claim against the doctor and the claim against Mercy relate to what happened during the delivery,18 but argue that they are nonetheless distinct enough for individual appeal because they involve different defendants and different standards of care— i.e., different theories of recovery.19 The An*228drews conclude that “[a]ny appearance that the claims on appeal and the allegations against the physician defendant arise from the same transaction or occurrence is perfunctory, and simply the produce of chronology and location.”20 But a “transaction or occurrence” is nothing if not some series of events demarcated by time and place.21

¶ 12 In sum, the claim against Mercy arises from the same transaction or occurrence as the claim still pending against the doctor, but that does not mean the judgment in Mercy’s favor is unappealable. The judgment is appealable because it is a final judgment within the meaning of 994 and there is no just reason to delay our review.

II.

¶ 13 I also write separately to address the majority’s decision to fault the district court for the sequence in which it memorialized its decisions on Mercy’s motion for summary judgment and Daubert motion. Because the testimony of the non-excluded expert witnesses was enough to preclude summary judgment in Mercy’s favor,22 there is no need to reach the issue of whether the district court erred in not considering the testimony of the excluded expert witness. In any event, the district court’s decision to exclude that expert’s testimony was not procedurally deficient.

¶ 14 First, while it may well be that 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,”23 that is not what happened here. The district court’s decision on the Daubert issue was not sua sponte,24 but rather the product of a fully briefed and ripe-for-decision Daubert motion. The Andrews had notice that the admissibility of their expert opinion on causation was being challenged and that it might be excluded from consideration at the summary judgment stage. Mercy, in fact, originally moved for summary judgment and raised its Daubert objection in a single filing, putting the Andrews on notice that Mercy’s request for summary judgment turned in part on the admissibility of the challenged expert’s testimony.25 The Andrews then responded to Mercy’s Daubert motion, did so prior to the court deciding the motion for summary judgment,26 and in their response explicitly acknowledged the intertwined nature of the two motions:

Plaintiffs incorporate by reference herein, Plaintiffs’ Response and Objection to Defendant Mercy’s Motion for Summary Judg*229ment, as many of the same issues raised in this Motion mirror that of Defendant’s Motion for Summary Judgment.27

The Andrews were thus fully on notice that the admissibility of their expert’s testimony was integral to the district court’s decision on Mercy’s motion for summary judgment, and they fully participated in the adjudication of the Daubert motion. The district court’s Daubert decision was thus anything but sua sponte.28

¶ 15 Second, the majority departs from our usual practice of giving trial judges the benefit of the doubt in matters of procedural regularity.29 In a typical case, we presume “that a trial court’s decision is correct arid the proceedings are regular,”30 that the trial court “acted properly and did all that was necessary to sustain the proceedings,”31 and that the trial court “found every special thing necessary to be found” in order to arrive at its conclusion.32 The majority affords the district court none of these presumptions.

¶ 16 For example, when.analyzing the trial court’s initial summary judgment order, the majority offers two plausible interpretations: either the court considered the expert’s testimony but failed to appreciate its import ,under the proper causation standard,, or the court made a “sua sponte Daubert assessment” tp exclude the expert testimony.33, But the trial court’s order can be read a.third way: the court — after receiving and reviewing the briefs of both parties on both summary judgment and the Dombert, objection— granted both motions simultaneously, excluding the expert’s testimony and concluding that the remaining evidence was insufficient to create a fact dispute as to causation. This interpretation does not have to be correct; it merely has to be plausible.34 And plausible it is. Read that way, any concerns about the ordering of the district court’s decisions disappear because, as explained above, the Andrews were on notice of the Daubert motion and fully briefed their objection to its granting,35 and the district court was under no *230obligation to hold a Daubert hearing prior to granting the motion.36

¶ 17 Lastly, because the majority does not address the merits of the district court’s Daubert decision, but rather merely finds it procedurally deficient, the excluded expert’s testimony will remain excluded on remand. I thus struggle to find the utility of the majority’s expenditure of substantial judicial resources to provide pronouncements that are neither necessary to its judgment nor destined to alter the course of the litigation below.

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¶ 18 For these reasons, I concur in the judgment only.

. See 12 Okla. Stat. Ann. 1006 (West Supp. 1991) Bar Committee's cmt. (“Where there are multiple parties and a claim as to one of them has been fully adjudicated, the court may direct the filing of a separate judgment under subsection (A) as to that party although the claims by or against the other parties, arose out of the same transaction or occurrence.”). Section 994 was originally 12 O.S. 1006 and was renumbered as 994 in 1993. Act of June 10, 1993, ch. 351, 30, 1993 O.S.L. 2031, 2053.

. Okla. City Urban Renewal Auth. v. City of Oklahoma City, 2005 OK 2, ¶12, 110 P.3d 550, 558, as corrected on denial of reh’g (Mar. 28, 2005) ("[A]n appellate court is not required to accept a trial court’s direction for entry of judgment.”).

. Id. ¶12 n.24, 110 P.3d at 558 n.24. In other words, whether there is a "final judgment, decree, or final order” is the jurisdictional question, and we review such questions de novo. See 12 O.S. 952 (outlining this Court's appellate jurisdiction); Reeds v. Walker, 2006 OK 43, ¶10, 157 P.3d 100, 107 (defining the standard of review for jurisdictional questions).

. Okla. City Urban Renewal Auth., 2005 OK 2, ¶12, 110 P.3d at 558 (in certifying that a decision is ready for appeal, "[t]he trial court is required to balance judicial administrative interests and relevant equitable concerns” and "[o]ur review of the trial court’s evaluation is for an abuse of discretion.”).

. Section 994 was originally numbered as 12 O.S. 1006. See supra note 1.

. Mann v. State Farm Mut. Auto. Ins. Co., 1983 OK 84, ¶11, 669 P.2d 768, 771.

. Id. ¶13, 669 P.2d at 772 ("Oklahoma has adopted the general rule that a cause of action includes all theories of recovery or types of damages stemming from one occurrence or transaction .... ”).

. 1993 OK 53, 851 P.2d 539.

. Id. ¶5, 851 P.2d at 542.

. Id. ¶5 n.11, 851 P.2d at 542 n.ll (noting that prior to the enactment of Section 1006, "where interrelated claims are left pending, summary judgment for less than all of the defendants is not an appealable event.”).

. 12 Okla. Stat. Ann. 1006 (West Supp. 1991) Bar Committee’s cmt. (emphasis added).

. See 12 O.S. 994 ("[Tjhe court may direct tire preparation and filing of a final judgment, decree, or final order as to one of more but fewer than all of the claims or parties ....” (emphasis added)); 12 Okla. Stat. Ann. 1006 (West Supp. 1991) Bar Committee’s cmt. ("[Tjhe court may direct the filing of a separate judgment under subsection (A) as to that party although the claims by or against the other parties arose out of the same transaction or occurrence," but "where the claims arose out of the same transaction or occurrence, the trial court might well exercise its discretion to decide that an appeal should be delayed until all the claims are adjudi*227cated so that the appellate court would not have to review the same case more than once.”).

. 12 O.S. 994; 12 Okla. Stat. Ann. 1006 (West Supp. 1991) Bar Committee's cmt.

. E.g., Jennings v. Badgett, 2010 OK 7, 230 P.3d 861; Schovanec v. Archdiocese of Okla. City, 2008 OK 70, 188 P.3d 158; Binder v. Shepard's Inc., 2006 OK 17, 133 P.3d 276; Daniels v. Union Baptist Ass'n, 2001 OK 63, 55 P.3d 1012; Lykins v. Saint Francis Hosp., Inc., 1995 OK 135, 917 P.2d 1; Anderson v. Eichner, 1994 OK 136, 890 P.2d 1329.

. Okla. City Urban Renewal Auth., 2005 OK 2, ¶17, 110 P.3d at 560.

. Section 994's expansive language authorizes a district court to carve out distinct claims — as opposed to causes of action — and certify them for appeal, no matter whether the claim is "a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved." Section 994 thus can be read to expand the class of judgments subject to review beyond just those which we defined as appealable prior to the enactment of the statute — i.e., to include judgments resolving some but not all claims arising out of a cause of action, even where there is but a single defendant in the case — and that is the way federal courts have interpreted 994's federal analogue, Fed. R. Civ. P. 54(b). See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 433-35, 76 S.Ct. 895, 100 L.Ed. 1297 (1956).

. Appellee’s Supp. Br. 4.

. Appellants' Supp. Br. 4.

. Id. at 10. Earlier in their brief, however, the Andrews cite Retherford v. Halliburton Co., 1977 OK 178, 572 P.2d 966, and Rodgers v. Higgins, 1993 OK 45, 871 P.2d 398, both of which stand for the proposition that no matter how many theories of liability appear from a single harm, they all arise from a single transaction or occurrence. See Rodgers, 1993 OK 45, ¶4, 871 P.2d at 402-03 ("Oklahoma jurisprudence utilizes the *228transactional approach for its definition of a 'cause of action.' Although different theories of liability may be pressed in support of each claim, only a single cause of action can ordinarily be predicated upon one occurrence or transaction.”); Retherford, 1977 OK 178, 1l, 572 P.2d at 968-69 ("[A] single wrong gives rise to one cause of action for which one suit may be maintained to recover all damages which had then accrued because of the commission of such wrong, however numerous the elements or items of damage resulting therefrom.” (internal marks omitted)).

. Appellants’ Supp. Br. 12 (emphasis added).

. See Black's Law Dictionary 1107 (7th ed. 1999) (defining "occurrence” as "[sjomething that happens or takes place; specif., an accident, event, or continuing condition that results in personal injuty or property damage that is neither expected nor intended from the standpoint of an insured party”); Webster’s New International Dictionary 1684 (2d ed. 1959) (defining "occurrence” as "3. Any incident or event”); Id. at 885 (defining “event” as "1. The fact of taking place or occurring; ... 2. That which comes, arrives, or happens”),

. Maj ority Op. ¶¶ 31 -3 3.

. Id. ¶ 35.

. Even if it were, there is no per se bar to a trial court making evidentiary rulings sua sponte. See id. c 35 n.46. Trial courts in fact have an obligation to examine the admissibility of expert testimony and exclude that which is not reliable. Worsham v. Nix, 2006 OK 67, ¶37, 145 P.3d 1055, 1068.

. See ROA, Doc. 11, p, 15 (Docket Sheet for Case No. CJ-2009-10713, Defendant Mercy Health Center, Inc.’s Daubert Motion and Motion for Summary Judgment (filed Feb. 5, 2015)); see also Majority Op. ¶ 28 (noting that Mercy's amended motion for summary judgment also references and relies on its Daubert motion in arguing that it was entitled to judgment as a matter of law).

. See ROA, Doc. 11, p. 18 (Docket Sheet for Case No. CJ-2009-10713, Plaintiffs' Objection and Response to Defendant Mercy’s Amended *229Daubert Motion Regarding M.M., R.N. (filed Apr. 15, 2015)).

. Pls.' Objection & Resp. to Def. Mercy's Am. Daubert Mot. Regarding M.M., R.N. 4 (filed Apr. 15, 2015).

. When at the April 24th hearing the Andrews' counsel was offered the opportunity to provide additional argument to the district court, he declined, choosing to rest on the briefing. Majority Op. ¶ 4. Thus, the Andrews were deprived of nothing — nothing at all — by the district court’s exclusion of their expert prior to that hearing. This should be reason enough for us to ignore any perceived error on appeal. See 12 O.S. 78 ("The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”); id. 2104(A) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected”); Badillo v. Mid Century Ins. Co., 2005 OK 48, ¶47, 121 P.3d 1080, 1098-99 ("A judgment is not subject to reversal for error in the rejection of evidence unless it appears from review of the whole record that the error has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.” (internal marks omitted)).

. Willis v. Sequoyah House, Inc., 2008 OK 87, ¶15, 194 P.3d 1285, 1290 ("A trial judge's decision comes to a court of review clothed with a presumption of correctness.”).

. F.D.I.C. v. Jernigan, 1995 OK 54, ¶8 n.13, 901 P.2d 793, 796 n.13.

. Armstrong v. Gill, 1964 OK 88, ¶8, 392 P.2d 737, 738.

. KMC Leasing, Inc. v. Rockwell-Standard Corp., 2000 OK 51, ¶13, 9 P.3d 683, 688-89 (quoting Monarch Ins. Co. of Ohio v. Rippy, 1962 OK 6, ¶11, 369 P.2d622, 625).

. Majority Op. ¶¶ 34-35.

. See Jernigan, 1995 OK 54, ¶8 n.13, 901 P.2d at 796 n.13 ("On appeal we indulge in the presumption that a trial court's decision' is correct an.d the proceedings are .regular.”);. Boorigie v. Boyd, 1914 OK 77, ¶2, 41 Okla. 550, 139 P. 253, 253-54 ("We must presume, in the "absence of a contrary showing, that the court's proceedings were regular."); see also Willis, 2008. OK 87, ¶15, 194 P.3d at 1290 (noting that the party seeking to overturn.a decision bears the burden of “overr coming the law’s presumption of correctness”); Kahre v. Kahre, 1995 OK 133, ¶45, 916P.2d 1355, 1365 ("Before any claimed error-concerning the admission or exclusion of evidence will be deemed reversible error, an affirmative showing of prejudicial error must be made.”).

. See supra 14.

. Majority Op. ¶ 37 (citing Day v. State, 2013 OK CR 8, ¶¶4-9, 303 P.3d 291. 295-97; Kumko Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).