Oklahoma Tort Law Update 2016

Oklahoma Association for Justice Continuing Legal Education

TORT LAW UPDATE 2016

Written by Paul Kouri and Brennan Clay

Presented by Rex Travis

ABOUT THE SPEAKER

Rex Travis is a graduate of the University of Oklahoma College of Law (1962). He limits his practice in Oklahoma City to plaintiff’s insurance and personal injury claims. He has done this practice more than 50 years.

He writes articles for the Oklahoma County Bar Association Briefcase, frequently writes briefs for the Oklahoma Association for Justice (OAJ) amicus curiae program, writes a regular insurance law column for the OAJ Advocate, teaches Insurance Law at the University of Oklahoma College of Law and frequently teaches CLE programs. He has published chapters in Matthew Bender Company’s Law of Liability Insurance. He is a past president of the OAJ and the Oklahoma County Bar Association and serves on the Legal Ethics Committee of the Oklahoma Bar Association. He received the Earl Sneed Award for CLE from the OBA in 1996. He is a retired Lt. Col. from the U.S. Air Force Reserve.

ABOUT THE AUTHORS

Paul Kouri works alongside Rex Travis at Travis Law Office. He is a 2005 graduate of OU College of Law, where he wrote for the Oklahoma Indian Law Review. Paul regularly writes and presents CLE seminars on insurance law and uninsured/underinsured motorist Coverage.

Brennan Clay is a third-year law student at the University of Oklahoma College of Law and Intern for Travis Law Office.

© 2016 - Rex Travis Law Office

Table of Contents

Informed Consent Doctrine Requires Physician Disclose Reasonable Alternative Not Recommended by that Physician.. 1

Allen v. Harrison, 2016 OK 44, 374 P.3d 812. 1

Nelson v. Enid Medical Associates, Inc., 2016 OK 69, 367 P.3d 212. 1

Notice Time for Governmental Tort Claims Act Tolled by Misleading Acts of Governmental Employee. 2

Watkins v. Central State Griffin Memorial Hospital, 2016 OK 71, ---P.3d--- 2

No Common Law Claim for Misappropriation of Intangible Property Not Arising to Level of Trade Secret; Nor Does Oklahoma Uniform Trade Secrets Act Preempt All Common-Law Remedy. 2

American Biomedical Group, Inc. v. Techtrol, Inc., 2016 OK 55, 374 P.3d 820 2

Officers, Directors, Shareholders, Members of Nursing Home Not Shielded from Direct Negligence Claims By 12 O.S. § 682. 3

Maree v. Neuwirth, 2016 OK 62, 374 P.3d 750. 3

12 O.S. § 682 is Substantive Statute that Cannot Be Retroactively Applied. 3

Sauders v. Mangum Nursing Center, LLC, 2016 OK CIV APP 53, ---P.3d--- 3

Company’s Prior Good Safety Record No Shield to “Parret” Liability. 4

Tiger v. Verdigris Valley Electric Cooperative, 2016 OK 74, ---P.3d--- 4

Lack of Policy to Report Downed Signs Not “Constructive Notice” of Downed Sign in OGTCA Claim... 4

T.L.I. v. Board of County Commissioners, 2016 OK CIV APP 12, 376 P.3d 930 4

No Substantial Compliance with OGTCA Notice Requirement Where Notice of Injury Given to Wrong Entity and Not Treated as Valid Notice. 5

Hill v. State ex rel. Board of Regents, 2016 OK CIV APP 14, 367 P.3d 524. 5

Arbitration Agreement Upheld in Nursing Home Case Where Agreement Purports to Apply FAA.. 5

Weaver v. Doe, 2016 OK CIV APP 30, 371 P.3d 1170. 5

Plaintiff Need Not File Claim in Probate Case of Deceased Defendant in order to Preserve Suit Pending Against Decedent at Time of Death.. 6

Guerra v. Starnes, 2016 OK CIV APP 42, ---P.3d--- 6

Injured Invitee Must Show Some Evidence of Notice of the Defective Condition.. 6

Lewis v. Dust Bowl Tulsa, LLC., 2016 OK CIV APP 43, ---P.3d--- 6

10th Circuit’s Take on Wood v. Mercedes-Benz (Open and Obvious Defense to Premises Liability) 7

Wood v. Mercedes-Benz, 2014 OK 68, 336 P.3d 457 [From Martinez v. Angel Exploration, LLC., 798 F.3d 968 (10th Cir. 2015)]: 7

$350,000 Cap on Non-Economic Damages is in the Supreme Court. 8

Beason v. I.E. Miller Services, Inc., Supreme Court Case. No.114,301. 8

Informed Consent Doctrine Requires Physician Disclose Reasonable Alternative Not Recommended by that Physician

Allen v. Harrison, 2016 OK 44, 374 P.3d 812

Woman swallows nail. Goes to ER at Duncan Regional Hospital. Prescribed high fiber diet “to let the nail pass,” and instructed to return if she had problems. Next day she goes to Southwestern Hospital in Lawton because of severe vomiting. They do emergency surgery to remove the nail. Leaves her with perforated and infected bowel and she has two more surgeries for complications. Woman sues Duncan Regional for failure to advise of risks associated with letting the nail pass and of the alternative treatment options. Doctor defended claim of failure to advise of alternatives by claiming that was not really an option because he was not qualified to perform the surgery, so he had no legal duty to advise of those options. The trial court agreed, granting summary judgment on that basis and because the doctor did not affirmatively injure the patient. COCA affirmed, on another basis, holding doctrine of informed consent only triggered when the doctor provides surgical treatment that causes injury, while failing to disclose alternative, non-surgical options. The Supreme Court reversed, noting “a patient’s right of self-decision is only exercised effectively if the patient possesses enough information to enable an informed choice.” Duty to inform extends to invasive and non-invasive procedures and emergency room physician is not shielded from the duty. Also, physician “affirmatively treated” the patient by prescribing a high fiber diet.

Supreme Court Eases Requirement for Admission After Daubert Challenge

Nelson v. Enid Medical Associates, Inc., 2016 OK 69, 367 P.3d 212

Doctors sued after complications of surgery for incarcerated hernia with bowel obstruction. Estate claims patent overdosed on Vasopressin. Two defendants file Daubert challenge to two experts proposed by plaintiff, and claimed causation cannot be proved. Review of trial court Daubert decision reviewed under “clear abuse of discretion” standard. Supreme Court distinguishes “general causation” (this substance is capable of causing injury) with specific causation (and it caused injury here), and discusses at length the kind of information a medical expert may cite. Ultimately holds science need not be universally accepted to be “generally accepted.”

Court turns to specific causation. Trial court rejected the testimony as “legally insufficient ‘educated guess,’” which failed to “rule out” alternative causes. Supreme Court reverses, holding “differential diagnosis” need not definitively rule out all other causes to survive Dauber challenge.

Watkins v. Central State Griffin Memorial Hospital, 2016 OK 71, ---P.3d---

Male nurse accused of unauthorized pelvic exam at psychiatric hospital. Griffin employees provided false information to civil and criminal investigators and misled family of injured patient, but patient’s GAL was aware of the general allegations during the one-year notice period, but was not made aware until after it ran, that some of what she had been told was false. GAL submitted OGTCA notice, which was rejected as untimely. She filed suit. Supreme Court ultimately holds government estopped to assert untimeliness due to the misleading and false information provided which led GAL to believe there was no wrongdoing by the nurse. Court applies this rule to this “narrow set of facts.”

American Biomedical Group, Inc. v. Techtrol, Inc., 2016 OK 55, 374 P.3d 820

American Biomedical Group developed method to track individual cattle with a “bolus” of electrical transmitters and contracted with Techtrol to manufacture the devices under a non-disclosure agreement, then transferred its technology to Techtrol. The deal went south and the relationship ended. Techtrol started manufacturing and selling the boluses. American sued for misappropriation of its intangible, proprietary information. The Supreme Court holds that Oklahoma common-law does not recognize a tort of misappropriation of intangible property, but does recognize a cause of action for misappropriation of business information. The UTSA preempts the tort of misappropriation of a trade secret, but only as to that information defined in the Act as a “trade secret.” Does not preempt common-law protection of other business information that is not trade secret. Finally, Court holds unjust enrichment not available where the information is acquired involuntarily, or where there is adequate remedy at law, but Techtrol has not shown absence of disputed fact in that regard.

Officers, Directors, Shareholders, Members of Nursing Home Not Shielded from Direct Negligence Claims By 12 O.S. § 682

Maree v. Neuwirth, 2016 OK 62, 374 P.3d 750

Estate of deceased sued nursing home and later (after running of statute) amended to also name individuals and LLCs that had ownership interest in the nursing home. Trial court refused the amendment citing 12 O.S. § 682, which says, essentially, you cannot attempt to pierce corporate veil until after you get judgment against the corporation. Supreme Court issued writ and ordered trial court to allow the amendment. The claims against the new entities were not solely derivative claims, but were based upon claims of direct negligence by those entities. § 682 does not prohibit suit against officers and others “for their own conduct. . . .”

12 O.S. § 682 is Substantive Statute that Cannot Be Retroactively Applied

Sauders v. Mangum Nursing Center, LLC, 2016 OK CIV APP 53, ---P.3d---

Betty Lowell died at Mangum Nursing Center on May 8, 2013. The pertinent amendment to Section 682 took effect in November, 2013. COCA determined the statute was substantive since it limits which parties may be sued for nursing home negligence. As such it cannot apply to a claim which arose before the effective date of the statute.

Company’s Prior Good Safety Record No Shield to “Parret” Liability

Tiger v. Verdigris Valley Electric Cooperative, 2016 OK 74, ---P.3d---

2008 injury, before Parret abolished by legislature with 85 O.S. § 302 (now in 85A O.S. § 5). Electrician’s apprentice killed attempting to connect high voltage cable. Evidence that company Field Engineer and crew foreman allowed job to proceed despite known, unsafe, conditions, and compounded that by allowing untrained apprentice to attempt to connect live high voltage cable. Supreme Court holds evidence sufficient for jury to find employer acted with knowledge that injury was substantially certain to result. Conduct rises to level of intent necessary to escape workers’ compensation exclusive remedy.

This was an older injury that predated the statutory abrogation of Parret v. Unicco. That statutory abrogation is now before the Supreme Court, after a trial court held the abrogation violates the Oklahoma Constitution.

Also, the new workers’ compensation code purports to apply only to “unforeseeable injury.” At least one court has held that means any foreseeable injury not subject to exclusive remedy.

Lack of Policy to Report Downed Signs Not “Constructive Notice” of Downed Sign in OGTCA Claim

T.L.I. v. Board of County Commissioners, 2016 OK CIV APP 12, 376 P.3d 930

Minor, T.L.I. was hurt when car he was riding in crashed into an embankment at the end of a dead-end road. The dead end road sign had apparently fallen over long before the wreck. In OGTCA suit that resulted, trial court granted summary judgment to county since plaintiff could not show actual or constructive notice that the sign was missing. Plaintiff conceded no actual notice, but claimed county had constructive notice by virtue of failure to implement any procedures for its employees to report downed signs. Plaintiff argued failure to implement such policy constitutes willful ignorance, resulting in imputation of constructive notice. COCA explains constructive notice is a legal inference from established facts. Since the board had no policy to in place to report downed signs there are no established facts from which to derive constructive notice. COCA puts it to the legislature to “expand” constructive notice to include such circumstances.

No Substantial Compliance with OGTCA Notice Requirement Where Notice of Injury Given to Wrong Entity and Not Treated as Valid Notice

Hill v. State ex rel. Board of Regents, 2016 OK CIV APP 14, 367 P.3d 524

Plaintiff was injured by campus police at OU Health Sciences Center. Instead of giving written notice to the Office of Risk Management, she sent notice to the school itself, and other entities. Her GTCA action was later dismissed for failure to provide the jurisdictional notice to the entity listed in the statute. COCA affirmed, distinguishing case where notice given to correct entity, but to president of the entity instead of to the clerk of the entity. But there, the entity discussed the claim at board meetings, hired an attorney, and entered a general appearance, thereby treating the improper notice as proper notice. By contrast, no action was taken with Hill’s notice. COCA also notes whole doctrine of substantial compliance called into question by 1985 change to OGTCA which requires written notice.

Arbitration Agreement Upheld in Nursing Home Case Where Agreement Purports to Apply FAA

Weaver v. Doe, 2016 OK CIV APP 30, 371 P.3d 1170

Plaintiff filed suit alleging injury at nursing home. Nursing home moves to dismiss citing binding arbitration provision, voluntarily entered into, in contract. Plaintiff cited Oklahoma Case, Bruner v. Timberline Manor Limited Partnership, 2006 OK 90, 155 P.3d 16. Bruner negated arbitration provision which applied Oklahoma law, because the Oklahoma Nursing Home Care Act controls over the Oklahoma Uniform Arbitration Act. In Weaver, though, the contract at issue did not apply Oklahoma law, but applied the FAA. The United States Supreme Court, in a similar case, says this mandates application of federal arbitration law. Marmet Health Care Center v. Brown, ---U.S.---, 132 S. Ct. 1201, 182 L.Ed. 2d 42 (2012).

Plaintiff Need Not File Claim in Probate Case of Deceased Defendant in order to Preserve Suit Pending Against Decedent at Time of Death

Guerra v. Starnes, 2016 OK CIV APP 42, ---P.3d---

Plaintiff filed real estate disclosure breach case, then Defendant dies. Plaintiff substituted the PR or the estate, but did not file claim in probate. Defendant seeks dismissal because Plaintiff did not file claim in Decedent’s probate action (per 58 O.S. § 331). COCA holds this used to be required, but no longer in light of changes to legislation. After 1984, there was no requirement that a plaintiff present such a claim in probate, but only that the PR be timely (90 days after receipt of notice of suggestion of death) substituted in the pending action.  

Injured Invitee Must Show Some Evidence of Notice of the Defective Condition

Lewis v. Dust Bowl Tulsa, LLC., 2016 OK CIV APP 43, ---P.3d---

Plaintiff injured by splinter in approach area of bowling lane. Evidentiary materials showed Plaintiff had noticed no problem and staff claimed to have mopped and cleaned without noticing the splinter. Plaintiff argued there were “questions whether the [Dust Bowl[] sufficiently maintained, inspected, and removed hazards from the flooring . . . .” COCA noted lack of evidence in that regard and that claim that the fact of “a three inch” splinter negates an inference of proper maintenance, is just conjecture. On rehearing, the COCA also rejected “new evidence” in the form of an affidavit by the injured plaintiff’s son stating that an employee of the bowling alley admitted they knew about “a defect.” The affidavit did not satisfy the requirement of “new evidence” since the information was available to the plaintiff long before the original motion was heard.

10th Circuit’s Take on Wood v. Mercedes-Benz (Open and Obvious Defense to Premises Liability)

Wood v. Mercedes-Benz2014 OK 68, 336 P.3d 457 [From Martinez v. Angel Exploration, LLC., 798 F.3d 968 (10th Cir. 2015)]:

(Following is the 10th Circuit’s take on Wood v. Mercedes Benz) That rule [open and obvious] is now in doubt. Finding that the open and obvious danger doctrine is “not absolute,” the Oklahoma Supreme Court recently concluded that even where an invitee is injured by an open and obvious condition, a landowner may still have a duty to warn of or otherwise protect the invitee from the dangerous condition if the injury suffered was reasonably foreseeable to the landowner. Wood v. MercedesBenz, 336 P.3d 457, 459–60 (Okla.2014). In Wood, the plaintiff was a catering employee who had been sent to a car dealership to assist with an event. The night before her arrival, the dealership’s sprinklers activated in freezing temperatures, leaving a layer of ice on the grass, pavement, and sidewalks surrounding the dealership. The plaintiff testified that she saw the ice, was aware of the danger it posed, and knew to be very careful in navigating her way in and out of the dealership. Despite her caution, she slipped and was injured. Afterwards, an employee of the dealership told her that he should have put salt down when he got to work.

… [T]he majority cautioned that its opinion “should not be construed as abrogating the open and obvious defense in all cases,” it again reasoned that “[t]he icy condition is not dispositive of Mercedes–Benz’ duty in this case because Wood was required to cross the hazardous condition in furtherance of her employment.” Id. At 460 n. 8 (emphasis added). That is different than “a random customer appearing at the dealership” because the dealership “knew that employees of Ned’s Catering would be arriving and would be required to enter the building.” Id.

Four justices dissented from the court’s holding, saying the new exception announced by the majority “ignore[d] ... long-standing laws regarding the open-and-obvious doctrine and the duty in a premises-liability action.” Id. At 461 (Taylor, J., dissenting). That seems correct. Wood appears to represent a significant shift in Oklahoma premises liability law. Before Wood, the Oklahoma Supreme Court had consistently rejected attempts by plaintiffs to merge ordinary negligence principles with the common law of premises liability. See, e.g., Scott, 191 P.3d at 1213 (“We are not persuaded by plaintiffs’*976 attempt to change a landowner’s duty to an invitee with respect to open and obvious dangers by characterizing the issue as one of ordinary negligence and urging application of concepts of ordinary negligence.”); Sutherland, 595 P.2d at 781; see also Gobble v. Chesapeake Energy Corp., 311 P.3d 454, 457 (Okla.Civ.App.2013) (rejecting plaintiff’s foreseeability argument in a pre-Wood decision because “[d]efining a duty based on foreseeability is a principle of general negligence which does not govern when the harm occurs on the premises of others”).

$350,000 Cap on Non-Economic Damages is in the Supreme Court

Beason v. I.E. Miller Services, Inc., Supreme Court Case. No.114,301

Claims raised: Violates Right to Jury, Equal Protection, and Separation of Powers; Requires Illegal Special Verdict; is a Special Law.