COVEL v. RODRIGUEZ
2012 OK 5
Case Number: 105942
Decided: 01/31/2012

THE SUPREME COURT OF THE STATE OF OKLAHOMA

Cite as: 2012 OK 5, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

 CAROLYN JOAN COVEL, Individually, and as Personal Representative of the Estate of H. K. COVEL, Deceased, TONNI COVEL, TOBY KEITH COVEL, and TRACY KAYE COVEL, Appellees,

v.
ELIAS A. and PEDRO RODRIGUEZ, d/b/a RODRIGUEZ TRANSPORTES and REPUBLIC WESTERN INSURANCE COMPANY, an Arizona Corporation, Appellants.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. IV

¶0 The Hon. Candace L. Blalock, district judge for McClain County, Oklahoma, denied appellants’ motion for judgment notwithstanding the verdict, remittitur or new trial. The Court of Civil Appeals, Div. IV, reversed and remanded with directions to enter judgment for the appellants, finding that the appellees had failed to prove causation because their expert’s evidence on causation was legally insufficient on Daubert grounds. We granted the appellees’ petition for certiorari. We find that the testimony and conclusions of appellees’ accident reconstruction expert were not objected to or challenged on Daubert grounds when admitted and were properly considered by the jury in rendering its verdict and by the trial judge in ruling on the motion for judgment notwithstanding the verdict.

THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED;
MOTION FOR ORAL ARGUMENT DENIED; TRIAL COURT AFFIRMED.

Russell L. Mulinix, Armando J. Rosell and Joseph K. Goerke, MULINIX OGDEN HALL ANDREWS & LUDLAM, P.L.L.C., Oklahoma City, OK, for Appellees.
Clyde A. Muchmore, Mark S. Grossman, Jan E. Singelmann, CROWE & DUNLEVY, Oklahoma City, OK for Appellants.*

*Only those attorneys are shown who have filed an entry of appearance in the appeal. Although defendants’ trial counsel appeared on the petition in error and briefs along with appellate counsel, they did not enter an appearance in the appeal.

EDMONDSON, J.

¶1 This is a wrongful death action in which plaintiffs asserted that defective brakes on the bus owned by Elias A. and Pedro Rodriguez (defendants) caused the death of their decedent, H. K. Covel. Covel was traveling northbound on the inside lane of I-35 when he lost control of his pickup truck and crossed the median and entered the southbound lanes of traffic. Defendants’ bus was traveling in the outside southbound lane, and Covel’s pickup and the bus collided almost head on. H. K. Covel died on the spot. Plaintiffs asserted that another driver, Sparlin, bumped H. K. Covel in the northbound lane of traffic and caused him to lose control of his vehicle. Defendants responded that their bus was not the cause of the accident and that their driver was confronted with a sudden and unavoidable accident. They maintained that even if their brakes were defective, such was merely a condition and not a cause of the accident. After a five-day jury trial, the plaintiffs were awarded $2.8 million dollars and $5,000.00 in punitive damages. The trial court denied defendants’ motions for judgment notwithstanding the verdict (JNOV), remittitur or new trial. On appeal, the Court of Civil Appeals, with one judge dissenting, deemed the evidence of plaintiffs’ expert, Dr. Mark Strauss, on causation to be legally insufficient on Daubert grounds and reversed with directions to enter judgment for the defendants.

¶2 Although acknowledging that the defendants had not objected to plaintiffs’ expert’s testimony or conclusions, and, finding that admission of the evidence was not fundamental error, the Court of Civil Appeals went on to hold that plaintiffs’ expert’s opinions were not based on scientific method or foundation and that his opinion on causation was ipse dixit.¹ On petition for certiorari, plaintiffs argued that the Court of Civil Appeals applied an erroneous standard of review and substituted its judgment for that of the jury. Plaintiffs argued that defendants’ failure to object to the expert’s testimony and conclusions waived any contentions that Dr. Strauss’ testimony was not supported by proper methodology. Therefore, it was improper for the Court of Civil Appeals to disregard the testimony of their expert. We granted the plaintiffs’ petition for certiorari.

¶3 The defendants argue that they are objecting to the sufficiency of the expert’s evidence, which presents a question of law for the court. They state that, because engineering testimony rests upon scientific foundations, the sufficiency and competency of the expert’s testimony must be scrutinized under Daubert and Kumho, which focus on whether there is a valid scientific basis for the expert’s opinion.² They argue that the expert’s opinions were not competent evidence absent an adequate scientific foundation under Daubert standards and were legally insufficient to prove negligence. They assert that where there is no evidence on a material issue such as causation, it becomes a question of law for the trial court rather than the jury.

¶4 The Court of Civil Appeals relied upon Christian v. Gray, 2003 OK 10, 65 P.3d 591. Christian did not involve expert testimony that was given during the course of a trial. There, the district court had granted defendants’ motion in limine challenging the admissibility of testimony of plaintiff’s expert witness and moving to exclude the expert’s testimony on the cause of injury. We assumed original jurisdiction and decided, as a matter of first impression, that the procedures set forth in Daubert and Kumho Tire were appropriate for determining the admissibility of expert testimony in civil proceedings in this state. We said that Daubert requires a trial court to make a determination of the reliability of an expert’s evidence when it is sufficiently challenged. 65 P.3d at 599, ¶ 11.

¶5 Defendants first raised the Daubert arguments in their motion for directed verdict after all the evidence was in. Defendants argued that there was no competent evidence of negligence and that it was pure speculation on the part of Dr. Strauss whether it would have made any difference that the bus’ brakes were malfunctioning. Although defendants did not object in limine or contemporaneously to Dr. Strauss’ opinions or conclusions regarding causation on Daubert grounds, they attempted, after the testimony was admitted, to use Daubert grounds to undermine the testimony.³

¶6 Federal courts have held that a defendant’s failure to object to expert testimony admitted at trial forfeits its opportunity to subject the expert testimony to a Daubert challenge at the close of all the evidence. Macsenti v. Becker, 237 F.3d 1223, 1230-31(10th Cir. 2001), cert. denied, Becker v. Ascenti, 533 U.S. 950 (2001), The Tenth Circuit, quoting from Christopher v. Cutter Laboratories, 53 F.3d 1184, 1191 (11th Cir. 1995), stated that if the defendant believed the testimony was statistically invalid, it should have objected to the testimony, giving the witness the chance to explain his answers or to offer proof in support. Objecting would also have provided the district court with the opportunity not only to make a ruling on the accuracy and admissibility of the challenged testimony, but also to clarify that testimony. Although the trial judge is assigned the task of insuring that an expert’s testimony rests on a reliable foundation and is relevant, Daubert does not mandate an inquiry questioning and challenging the scientific proffer absent a timely request by an objecting party. Macsenti v. Becker, 237 F.3d at 1231-32.

¶7 The Tenth Circuit concluded that where the Daubert objections to expert testimony were made at the close of the evidence, they were untimely and would be reviewed only for plain error. The court found that the expert’s conclusion was not so manifestly unreasonable that its admission constituted plain error. 273 P.3d at 1234. In McKnight v. Johnson Controls, Inc. 36 F.3d 1396, 1407 (8th Cir. 1994), the Eight Circuit held that the failure to object to an expert’s trial testimony on the grounds that the expert lacked a scientific basis for his opinions precluded the court’s consideration of that issue on appeal, absent plain error. They said that a trial court is not required to exercise its gatekeeping authority over an expert’s testimony without an objection. The Ninth Circuit Court of Appeals rejected a defendant’s Daubert challenge raised as an insufficiency-of-the-evidence argument rather than as a challenge to its admissibility. Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir. 1996), cert. denied, Pacific Lumber Co. v. Marbled Murrelet, 519 U.S. 1108 (1997). The defendant there argued that, whether admitted or not, the scientific evidence failed the Daubert test because it was irrelevant and unreliable and therefore was insufficient to support the judgment. The Ninth Circuit reasoned that if permitted to challenge the reliability of the scientific evidence on Daubert grounds in the guise of an insufficiency-of-the-evidence argument, after not objecting at trial, the defendant would receive an unfair advantage. 83 F.3d at 1067.

¶8 Federal court decisions may be examined for persuasive value when they construe federal evidence rules with language substantially similar to that in our evidence statutes. Title 12 O.S. 2001§ 2702 is “identical in substance” to Federal Rule 702.⁴Christian v. Gray, 2003 OK 10 ¶ 6, 65 P.3d 591, 597. The reasoning of the federal courts cited above is in accord with Oklahoma jurisprudence. This Court has held that a party cannot, after introduction of evidence without objection, have it stricken on grounds that it is incompetent. State v. Planters Gin Co., 1935 OK 1090 ¶ 15, 52 P.2d 710, 713. The fact that evidence may be incompetent under one or more exclusionary rules of evidence does not destroy its probative effect if it is admitted without objection. Schell v. State ex rel. Hall, 1966 OK 174, 418 P.2d 690, 691. Incompetent evidence admitted without objection and without any effort to strike it must be given its natural effect. Sanley v. Wilkinson, 1924 OK 747, 229 P. 574, 576. Where no objection is made to testimony, the testimony is admitted and is properly before the trier of fact and must be considered when ruling on a demurrer to the evidence. D & H Co., Inc. v. Schultz, 1978 OK 71, 579 P.2d 821, 823-24. This Court has held that where a party fails to object to questions that elicit opinion evidence and fails to move to strike such evidence, the jury is privileged to give consideration to the opinion evidence, notwithstanding that the witness may not have been properly qualified to give the opinion. Pacific Nat. Fire Ins. Co. v. Woods, 1963 OK 40, 381 P.2d 824, 829, citing Superior Oil Co. v. Griffin, 1960 OK 249, 357 P.2d 987, 994.

¶9 Our rules of evidence provide that an expert may testify by opinion or inference and give reasons therefor without previous disclosure of the underlying facts or data, unless required to disclose the underlying facts or data on cross-examination or by the court. 12 O.S. 2011 § 2705.⁵ It is the responsibility of the opposing party to establish that the expert is beyond his expertise or, if within his general expertise, that he has failed to provide the proper basis or foundation for his opinions. Allowing the defendants to raise Daubert objections to the expert’s testimony in the guise of an insufficiency-of-the-evidence argument after the testimony has been admitted without objection deprives the expert of the opportunity to offer other supporting proof. SeeMarbled Murrelet, 83 F.3d at 1067. Daubert creates a gatekeeping function for the trial court regarding the admission of an expert’s evidence, when challenged. It does not enable a party to allow the expert’s testimony to be admitted and then attempt to discredit that testimony on Daubert grounds after all the evidence is in. By failing to object, the error is waived on appeal, in the absence of fundamental error.

¶10 Fundamental error is error that compromises the integrity of the proceeding to such a degree that the error has a substantial effect on the rights of one or more of the parties. Sullivan v. Forty-Second West Corp., 1998 OK 48, 961 P.2d 801, 803. We agree with the Court of Civil Appeals that there was no fundamental error. The admission of Dr. Strauss’ opinions on causation, where defendants failed to object to those opinions, did not seriously affect the fairness or integrity of the trial. Dr. Strauss’ testimony was not so manifestly unreasonable that its admission constituted fundamental error. Defendants may have had a trial strategy for not objecting; nevertheless, the opinions and testimony not objected to stand as evidence to be considered by the jury, and by the trial judge in ruling on the motion for judgment notwithstanding the verdict.

¶11 In ruling on a motion for judgment notwithstanding the verdict, the trial judge considers all evidence favorable to the nonmoving party and disregards all evidence favorable to the movant. That is also our standard on review of the trial judge’s ruling.Computer Publications, Inc. v. Welton, 2002 OK 50 ¶6, 49 P.3d 732, 735. We must affirm a jury verdict if there is any competent evidence reasonably tending to support it, evidence which is relevant and material to the issue to be determined. Jos. A. Coy Co. v. Younger, 1943 OK 160, 136 P.2d 890. We do not weigh the evidence. We consider all the evidence tending to support the verdict, together with every reasonable inference from it, and must affirm unless there is an entire absence of proof on a material issue.

¶12 Dr. Strauss qualified without objection as an expert in the fields of accident reconstruction, biomechanical engineering and human factors. Dr. Strauss has a commercial drivers license with air brake endorsement. Dr. Strauss relied upon scene photographs taken by the highway patrol and reviewed survey data of the accident prepared with the Total Station surveying tool, police reports, witness statements, deposition testimony, specifications on the pickup truck and maintenance manual for the bus. Dr. Strauss also examined maintenance records for the bus, including a repair ticket from Jefferson Lines in Tulsa, dated more than four months prior to the accident, which stated that the bus “needs steer and tag brakes urgently.” He testified that maintenance records are an important piece of information from a reconstruction standpoint. He explained steer and tag brakes for the jury and advised them that all three axles on the bus have brakes, for a total of six brakes. He used a model of a portion of an air brake similar to that of defendants’ bus to demonstrate how air brakes work and to show how air brakes are checked or inspected, and how they can be adjusted. He testified that regular air brake maintenance is important to prevent various kinds of malfunctions, and training for the commercial driver’s license requires daily pretrip inspections and knowledge of how to check the air brakes during such an inspection. He deemed it critical for anyone who is operating a vehicle with air brakes to understand how they work and how to check them because air brakes can fail, not just from being bad, but from not being adjusted properly. Evidence elicited from the defendants, Pedro and Elias Rodriguez, and the driver, David Perez, showed that no pretrip inspection of the bus was conducted and that they did not have commercial drivers’ licenses. The driver testified by deposition that he had not received any specialized training for driving a bus. Elias Rodriguez stated that he had the brakes repaired in Mexico, but there were no repair tickets or receipts showing that the repairs were done.

¶13 Photographs taken at the scene of the accident by Highway Patrol Trooper Brandon Schneider depicted a single preimpact skidmark by the bus. Highway Patrol Trooper Douglas George measured the preimpact skidmark left by the bus at 98 feet long. He testified that unless there is an antilock braking system, generally you will see skidmarks left by each of the wheels. Trooper Dennis Dickens testified that there was one very distinct black skidmark from the right front tire of the bus, going off to the right from the outside lane. Trooper Dickens testified that there should have been more than one black mark, since the bus did not have an antilock braking system. Dr. Strauss testified that the brakes on the two rear axles should have locked up on both the left and right sides if they were properly adjusted and in good condition. He testified that with properly adjusted bus brakes there would be more uniform skids on both right and left; that if the air brakes were working properly, and the driver stepped on the brakes all the way, one should see two long skidmarks on both the right and left sides of the bus; and because the bus was not fully loaded it should have locked up easier so that one should “definitely see skids.” Tr. Vol.1, p. 232. The single preimpact skidmark left by the bus was from the front right tire, which he said should not have locked up. The preimpact single skidmark also veered toward the right, which Dr. Strauss attributed to brake imbalance. The lack of expected skidmarks and the pull to the right indicated to Dr. Strauss that the brakes were not working. The bus driver testified, by deposition, that he hit the brakes but did not steer to the right. Other tire marks were laid down postimpact, which plaintiffs’ expert attributed to the pickup’s tires as they were pushed forward by the bus.

¶14 Dr. Strauss testified that the front passenger side of Covel’s pickup collided with the right front side of the bus. The collision resulted in an intrusion of Covel’s engine into the passenger compartment of his pickup and the intrusion of Covel’s vehicle into the right front side of the bus. Dr Strauss testified that intrusion is the worst thing that can happen in an accident. The bus pushed all the contents of the engine compartment into the passenger compartment and “you can’t survive that.” Tr. Vol. 1, p. 256. Dr. Strauss testified that a bus with properly working brakes would have slowed enough so that the collision would not have been head-on and the bus would have hit the truck bed rather than the truck cab. If the truck bed had been hit instead, the passenger compartment would be intact, “so it’s a tremendous difference.” Id. It was Dr. Strauss’ opinion that if the bus had been able to stop sooner and the collision not head-on, Mr. Covel would not have died in the accident.

¶15 By being qualified as an expert in accident reconstruction, biomechanics and human factors, Dr. Strauss was qualified to give opinions and conclusions based on his training and experience in those fields. Where the expert states the reasons for his opinions and conclusions, they are not ipse dixit. The factual basis of an expert’s testimony generally goes to the credibility of the testimony and the party opposing can attack the factual basis on cross-examination. Dr. Strauss testified for approximately four hours. The defendants did not cross-examine him about the scientific foundations or methods underlying his conclusions and opinions.

¶16 Defendants argue that Strauss did not perform any of the “typical” accident reconstruction calculations to determine the effect of brake malfunction on the actual braking efficiency of the bus. They argue that their expert’s calculations reflected that the bus’ brakes performed well within acceptable standards and that the bus driver only had seconds in which to react. Defendants’ expert, Mr. Pfeiffer, made measurements of the accident scene and the road geometry, using the electronic Total Station measuring system. Mr. Pfeiffer testified that the bus had skidded prior to collision and left approximately 98 feet of skidmarks from the right front wheel. Mr. Pfeiffer testified that the bus had slowed from a speed of approximately 65 mph to 51 mph, and that the pickup had slowed to a speed of about 62 mph. It was his opinion that the bus could not have avoided the collision, that it could not have slowed any faster and that the driver could not have reacted any faster than he did. On cross-examination, defendants’ expert agreed that up to the point of impact there was only one visible skidmark and that it veered to the right. Defendants’ expert maintained that, due to the shape of the pull to the right, the bus driver must have steered to the right without realizing it. Defendants’ expert maintained that the post-impact tire marks were from the left tires of the bus and not from the pickup.

¶17 The conclusions and opinions of the expert witnesses were in conflict. Both experts relied upon Total Station electronic survey measurements of the accident scene and photographs taken at the scene. Neither expert examined the bus’ brakes. When the evidence is conflicting, it is for the jury to decide. Considering all evidence favorable to the nonmoving party and disregarding all evidence favorable to the movant, we cannot find error in the trial judge’s denial of defendants’ motion for judgment notwithstanding the verdict. The plaintiffs did not contend that defendants’ bus caused the accident; plaintiffs contended that the faulty brakes resulted in a more severe injury to Mr. Covel; i.e., his death. The plaintiffs introduced evidence that defendants’ bus was operating on the highway with brakes that needed urgent repair; that the brakes were not working as they should have; that the chance of greater injury is present if a collision is head-on and intrusion occurs into the vehicle; that the impact with the bus caused intrusion of the pickup’s engine into the cab compartment; that such an intrusion was not survivable; and that the bus owners were required by federal law to conduct pretrip inspections and keep the brakes properly adjusted, but that they failed to do so, and such failure was the direct cause of Mr. Covel’s death. It is foreseeable that a motor carrier would encounter a situation wherein it needed to have brakes in good working order and that failure to do so might result in failure to stop in time, resulting in more severe injuries or a fatality in the event of an accident. The plaintiffs had the burden of proving that defendants’ brakes malfunctioned and that the malfunction was more probably than not the cause of Mr. Covel’s death. Whether defendants were negligent and, if negligent, whether the consequences could reasonably have been foreseen or anticipated, were questions for the jury to decide. The jury found for the plaintiffs and there is competent evidence to support the jury’s verdict.

¶18 The Court of Civil Appeals did not address the defendants’ other appellate contention that the jury’s verdict was the product of unfair passion and prejudice because: plaintiffs’ counsel appealed to the jury during closing arguments to punish the defendants with a substantial actual damages award; the decedent’s son, country singer Toby Keith, and his siblings were improperly named as plaintiffs; plaintiff’s counsel unfairly contrasted the defendants’ Mexican nationality against the asserted patriotism of the decedent and his famous son; the trial judge’s decision not to bifurcate the trial meant that Toby Keith and the other family members could introduce prejudicial testimony during the initial phase of trial even though that testimony was not relevant to negligence or causation; jurors were permitted to learn that the defendants’ insurance company was a named defendant; the trial court repeatedly constrained the defendants’ ability to present their theory of the case, while permitting Dr. Strauss to range far and wide in his opinions; and the trial judge did not instruct the jury properly on “how to determine whether negligence by defendants was the cause of the decedent’s death.”

¶19 The defendants maintained that the Covel children were improperly joined as plaintiffs and that the only proper plaintiff was Mrs. Covel, as the personal representative of the estate, pursuant to Oklahoma’s wrongful death statute, 12 O.S. § 1054.⁶ The defendants did not file any objection to joinder of the Covel children as plaintiffs before the trial. In Mitchell v. Amerada Hess Corp., 1981 OK 149 ¶15, 638 P.2d 441, 446, we said that the existence of an excessive party plaintiff is not reversible error when that issue is not raised before the issues are joined on the merits and the real party in interest appears as a party plaintiff.

¶20 The plaintiffs originally sued several other defendants, including the driver of the car alleged to have bumped Covel’s vehicle in the northbound lanes prior to the accident. The trial judge’s initial decision to bifurcate was made upon request of one of those parties because several of the plaintiffs’ claims pertained to conduct subsequent to the accident. Each of those defendants achieved dismissal or settled with plaintiffs prior to trial. The plaintiffs asked the trial judge to reconsider the decision to bifurcate. The defendants objected on the grounds that they had not anticipated trying damages with liability and because of the “celebrity issue.” The court expressed concern, but stated that celebrity was a fact of the case and that Toby Keith would be in the courtroom, so the celebrity issue would have to be dealt with in any event. We do not find that there was any abuse of discretion on the part of the trial judge in reconsidering and ultimately deciding not to bifurcate the trial.

¶21 Defendants complain that plaintiff’s counsel, during closing argument, urged the jury to award a substantial verdict in order to make sure that bus companies “operate properly in McClain County, in Oklahoma and in the United States.” Defendants objected, and the trial court admonished the jury to disregard argument of counsel regarding punishment of the bus or insurance company. Defendants also complain of : plaintiffs’ description during opening statements about the defendants’ bus route to Mexico; plaintiffs asking the highway patrol troopers about language obstacles faced with the bus’s passengers; asking questions about the origins and ancestry of the Rodriguez defendants; Mrs. Covel’s remarks about finding Mexican liquor stickers at the accident scene; and plaintiffs’ counsel’s comparison of the defendants’ compliance with Mexican regulations versus noncompliance with certain U.S. regulations. They assert that the prejudicial references assured that the defendants would be seen as Mexican bus owners who transported Mexican people and goods back and forth from Oklahoma to Mexico, while Mr. Covel would be perceived as an avowed patriot who had served his country in the military and had fathered a country singing superstar and writer of patriotic songs. The defendants did not object to the questions or statements. They argue that objecting to each comment would have highlighted the remarks in the minds of the jurors. They contend that it was incumbent on the trial court to “rein in” the plaintiffs whenever they “crossed the line.”

¶22 Attorneys have wide latitude in opening and closing statements, subject to the trial court’s control, and limitation of the scope of the arguments is within the trial court’s discretion. Lerma v. Wal-Mart Stores, Inc., 2006 OK 84, 148 P.3d 880, 885. An admonition to the jury to disregard an improper argument cures any prejudice that might be created thereby since it cannot be presumed as a matter of law that the jury will fail to heed the admonition given by the court. Middlebrook v. Imler, Tenny & Kugler M.D.’s, Inc., 1985 OK 66, 713 P.2d 572, 583. In order for the alleged misconduct of counsel in argument to the jury to effect a reversal of the judgment it must appear that substantial prejudice resulted therefrom and that the jury was influenced thereby to the material detriment of the party complaining. Oklahoma Turnpike Authority v. Daniel, 1965 OK 7, 398 P.2d 515, 518. That the defendants’ business was transporting passengers to and from Mexico was a fact in the case. That Toby Keith is the son of the decedent was a fact in the case. The jury was aware of these facts. At the hearing on motion for JNOV, the trial judge remarked that, although she initially was concerned about the celebrity issue and having an interpreter for the defendants, she felt that it was not a problem in the conduct of the trial because everyone conducted themselves in a professional manner and tried to avert any kind of prejudice being part of the trial.⁷ We have reviewed the matter and we conclude that statements of counsel were not so unfairly prejudicial as to render the jury’s verdict a product of passion and prejudice. The defendants did not object or move for a mistrial. Alleged prejudicial remarks of counsel are not preserved for review in this Court unless objected to at the time the statements are made. Bateman v. Glenn, 1969 OK 158, 469 P.2d 854, 858. The defendants are deemed to have taken their chances with the jury.

¶23 Defendants complain that their requested supplemental instruction on causation was not given. The defendants wished to instruct the jury that, even if all the negligent acts complained of were true, the jury could not find against the defendants unless they found that their negligence was the proximate cause of Mr. Covel’s injuries. The proposed instruction stated:

The proximate cause of an injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury. If the negligence complained of merely furnishes a condition by which the injury was made possible and a subsequent independent act caused the injury, then the existence of such a condition is not the proximate cause of the injury.

The plaintiffs responded that the requested instruction is not a uniform instruction and was unnecessary because the standard instruction on the elements of negligence sufficiently instructs the jury on causation. Plaintiffs contend that the instruction does not fit the facts because there was no subsequent independent act after the negligence of defendants.

¶24 Defendants also contend that the negligence per se instructions to the jury about regulations that defendants violated should not have been given because they were not applicable to the issues in the case. Jury Instruction No. 9 was styled Negligence Per Se – Violation of Statute or Regulation. This instruction informed the jury that in addition to the duty to exercise ordinary care there are also duties imposed by statute, and that if they found that a person violated any one of the following statutes or federal regulations, and that the violation was the direct cause of the injury, then such violation in and of itself would make such person negligent. (emphasis added). Instruction 9 listed statutes in force and effect in the State of Oklahoma at the time of the occurrence that require commercial chauffeurs to be licensed; that prohibit crossing the median into opposing traffic lanes when driving on divided highways and that prohibit driving at a speed in excess of 70 mph on a four-lane divided highway.

¶25 Instruction 10 was styled Negligence Per Se – Violation of Statute or Regulation and listed certain federal motor carrier safety regulations in force and effect at the time of the occurrence:

–Commercial Driver’s License Standards; Requirements and Penalties
–Qualifications of Drivers and Longer Combination Vehicle (LCV) Driver Instructors;
–Required Knowledge and Skills for CDL license applicants;
–Road test requirement for driver of commercial motor vehicles;
–Equipment, inspection and use.⁸

Instruction No. 9 set out laws applicable to plaintiff’s decedent as well as to the defendants. Instruction 10 set out the federal regulations applicable to commercial vehicle operators and drivers.

¶26 It is the duty of the trial court to give instructions that accurately reflect the law and apply to the issues. The test of reversible error in giving jury instructions is whether the jury was misled to the extent of rendering a different verdict than it would have rendered if the errors alleged had not occurred. Johnson v. Ford Motor Co., 2002 OK 24 ¶14, 45 P.3d 86, 92-93. The trial judge instructed the jury on negligence, direct causation, comparative negligence (which included contributory negligence), negligence per se, and unavoidable accident. The jury was instructed that their decision must be based on probabilities and not possibilities, and not upon speculation or guesswork. The jury was also instructed on concurrent causes, the burden of proof and weight of the evidence. We conclude that there was no prejudicial misstatement of law and no fundamental error in the instructions given on negligence per se. The jury was instructed three times on causation.⁹ We find that the trial did not err in refusing to give the defendants’ requested instruction on causation.

¶27 Defendants argue that the trial court “repeatedly constrained Defendants’ ability to present their theory of the case, while permitting Dr. Strauss to range far and wide in his opinions.” We find this argument to be without merit. The defendants did not object to Dr. Strauss’ testimony or his opinions about what witnesses and parties would have been able to observe or what might have happened in the northbound lanes of traffic. Defendants asserted that Mr. Covel may have had a medical event that caused the accident, and they cross-examined Mrs. Covel about her husband’s health history. They did not call Mr. Covel’s doctors as witnesses or introduce any of his medical records at trial. The jury was instructed on contributory negligence and that it was negligence per se for a driver to be on the wrong side of the road, as Mr. Covel was. We are not persuaded that the defendants were constrained by the trial court in presenting their theory of the case.

¶28 Defendants assert that the plaintiffs improperly informed the jury that Republic Western Insurance Company was a named defendant in the case. The parties stipulated that, at the time of the collision, Republic Western Insurance Company provided liability insurance to the defendants, doing business as Rodriguez Transportes, as required per statute. The stipulations were read to the jury at the beginning of the trial, without objection from the defendants. We find this argument to be without merit.

¶29 We agree with the trial judge that there was no irregularity in the trial proceedings and that the damages awarded were not excessive and do not appear to have been given as a result of passion or prejudice. The plaintiffs asked the jury to award $1.7 million dollars per plaintiff. The jury awarded considerably less. We find no error in the trial court’s denial of defendants’ motion for new trial, remittitur or JNOV.

¶30 After the record on appeal was transmitted to the Supreme Court Clerk, the defendants filed a motion to direct transmission of redacted trial court depositions for inclusion in the record on appeal. Ruling on the motion was deferred to the reviewing court by order dated May 13, 2009. The Court of Civil Appeals did not rule on the motion. The issue was not raised in the defendants’ certiorari paperwork filed with this Court and is hereby denied. Defendants moved for oral argument before this Court en bancand the plaintiffs filed an objection. We find that oral argument would not materially assist the Court and we deny the motion.

¶31 In conclusion, we affirm the trial court’s denial of the defendants’ motion for judgment notwithstanding the verdict, new trial or remittitur because there was competent evidence to support the jury’s verdict and the verdict was not the product of passion or prejudice.

THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; MOTION FOR ORAL ARGUMENT DENIED; TRIAL COURT AFFIRMED.

¶ VOTE: COLBERT, V.C.J., WATT, EDMONDSON, REIF, COMBS, and GURICH, JJ., concur; KAUGER and WINCHESTER, JJ., concur in result;
TAYLOR, C.J., by separate writing, dissents.

TAYLOR, C. J., dissenting.

Mr. Covell was northbound on I-35. He crossed the median and went into the southbound outside lane and collided head-on with the bus. It is undisputed that the bus was obeying all traffic laws and had brakes that met all federal standards. The brakes on the bus had absolutely nothing to do with this collision. Mr. Covell uncontrollably careened in front of the bus and crashed into the bus. This was a sudden, instantaneous and unavoidable event. No matter what kind of brakes the bus may have had, there is nothing the bus driver can do about a flying car instantly appearing from the other side of the highway. It is fundamentally unfair for the bus insurance company to be required to pay over $2.8 million because Mr. Covell lost control of his vehicle. The Court of Civil Appeals properly found that the plaintiff’s expert opinions were not based on scientific foundation and that the opinion on causation was a bare assertion and totally insufficient to support this huge verdict.

FOOTNOTES

¹ Ipse dixit is a bare assertion resting on the authority of an individual. Black’s Law Dictionary, 961 (4th ed. 1951), Christian v. Gray, 2003 OK 10, 65 P.3d 591, 607, fn. 19.

² Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469(1993) and Kumho Tire Co., Ltd. v. Patrick Carmichael et al., 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

³ In their brief in chief, defendants assert that they raised certain issues in pretrial motions in limine. The defendants’ arguments in their first motion in limine were directed to: repair records for the bus; commercial driver’s license and commercial vehicle issues; the proposition that Dr. Strauss’ opinions regarding the testimony of eyewitness had no reliable basis and should be excluded; and the proposition that Dr. Strauss’ skid test video should be excluded. In Oklahoma, it is incumbent upon a party aggrieved by an order in limine to 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. Middlebrook v. Imler, Tenny & Kugler, M.D.’s, Inc. 1985 OK 66 ¶12, 713 P.2d 572, 579. At trial, the defendants did reurge their objection to Dr. Strauss’ skid test video. The trial court excluded the video after defendants’ counsel conducted a Daubert voir dire of Dr. Strauss about the video.

⁴ 12 O.S. 2001 § 2702 provides that if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise. Section 2702 was amended by Laws 2009, ch. 228, § 18, eff. Nov. 1, 2009, and remains identical in substance to Federal Rule 702, 28 U.S.C.A., Federal Rules of Evidence.

⁵ § 2705. Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefor without previous disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

⁶ § 1054. Action for death-Who may sue

In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this article is at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow, or where there is no widow, by the next of kin if such deceased.

⁷ Tr., April 2, 2008, p. 38.

⁸ Instruction No. 10 provided, in pertinent part:

TITLE 49 -TRANSPORTATION
CHAPTER III – FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION

Part 383 – Commercial Driver’s License Standards; Requirements and Penalties
Sec. 383.1 Purpose and Scope:

(a) the purpose of this part is to help reduce or prevent truck and bus accidents, fatalities, and injuries by requiring drivers to have a single commercial motor vehicle driver’s license and by disqualifying drivers who operate commercial motor vehicles in an unsafe manner.

Sec. 391.11 General qualifications of drivers.

(a) A person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle. Except as provided in Sec. 391.63, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.

(5) has a currently valid commercial motor vehicle operator’s license issued only by one State or jurisdiction.

(8) Has successfully completed a driver’s road test and has been issued a certificate of driver’s road test in accordance with Sec. 391.31, or has presented an operator’s license or a certificate of road test which the motor carrier that employs him/her has accepted as equivalent to a road test in accordance with Sec. 391.33.

Sec. 383.113 Required skills

(a) Basic vehicle control skills. All applicants for a CDL must possess and demonstrate basic motor vehicle control skills for each vehicle group which the driver operates or expects to operate. These skills should include the ability to start, to stop, and to move the vehicle forward and backward in a safe manner.

(b) Safe driving skills. All applicants for a CDL must possess and demonstrate the safe driving skills for their vehicle group. These skills should include proper visual search methods, appropriate use of signals, speed control for weather and traffic conditions, and ability to position the motor vehicle correctly when changing lanes or turning.

(c) Air brake skills. Except as provided in Sec. 393.95, all applicants shall demonstrate the following skills with respect to inspection and operation of air brakes:

(1) Pre-trip inspection skills. Applicants shall demonstrate the skills necessary to conduct a pre-trip inspection which includes the ability to:

(i) Locate and verbally identify air brake operating controls and monitoring devices;

(ii) Determine the motor vehicle’s brake system condition for proper adjustments and that air system connections between motor vehicles have been properly made and secured;

Sec. 393.31 Road Test.

(a) A person shall not drive a commercial motor vehicle unless he/she has first successfully completed a road test and has been issued a certificate of driver’s road test in accordance with this section.

(b) The road test shall be given by the motor carrier or a person designated by it. However, a driver who is a motor carrier must be given a test by a person other than himself/herself. The test shall be given by a person who is competent to evaluate and determine whether the person who takes the test has demonstrated that he/she is capable of operating the commercial motor vehicle, and associated equipment, that the motor carrier intends to assign him/her.

(c) The road test must be of sufficient duration to enable the person who gives it to evaluate the skill of the person who takes it at handling the commercial motor vehicle, and associated equipment, that the motor carrier intends to assign him/her. As a minimum, the person who takes the test must be tested, while operating the type of commercial motor vehicle the motor carrier intends to assign him/her, on his/her skill at performing each of the following operations:

(1) The pretrip inspection required by Sec. 392.7 of this subchapter.

Sec. 392.7 Equipment, inspection and use.

No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed:

Service brakes, including trailer brake connections.

Parking (hand) brake.

⁹ Instruction No. 5 instructed the jury that a party claiming damages has the burden of proving that he or she has sustained injury, that the party from whom he or she seeks to recover was negligent and that such negligence was a direct cause of the injury sustained by the party.

Instruction No. 7 defined direct cause as a cause which, in a natural and continuous sequence, produces injury and without which the injury would not have happened, and instructed that for negligence to be a direct cause, it is necessary that some injury to a person in H.K. Covel’s situation must have been a reasonably foreseeable result of negligence.

Instruction No. 9 instructed the jury that if a person violated any of the Oklahoma statutes or federal regulations listed, and the violation was the direct cause of the injury, then such violation would make such person negligent.

Citationizer^© Summary of Documents Citing This Document

Here is the scoop:

Oklahoma judge approves Chesapeake settlement in shareholders’ lawsuit

An Oklahoma County judge has signed off on a settlement in lawsuit filed by Chesapeake Energy Corp. investors upset over CEO Aubrey McClendon’s compensation in 2008.

BY JAY F. MARKS     0

Published: January 31, 2012

 The fight over Chesapeake Energy Corp. CEO Aubrey McClendon’s 2008 compensation appears to be winding down.

An Oklahoma County judge on Monday accepted a settlement in a lawsuit filed by several institutional investors that objected to McClendon’s $75 million bonus in 2008 even though the company’s stock price plummeted that year along with natural gas prices.

Aubrey McClendon

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 The fall forced McClendon to sell the bulk of his holdings in the company because of a margin call.

The company’s board gave McClendon a $75 million bonus and bought his antique map collection for another $12 million, drawing outrage from investors.

Five groups, led by the Louisiana Municipal Police Employees’ Retirement System, filed lawsuits against Chesapeake and its board.

The parties reached a settlement in the case last fall, calling for McClendon to buy back his map collection while the company adopted “significant” governance reforms.

“This is a rare concession by Mr. McClendon,” said attorney Marc Gross, who represented the plaintiffs in the case. “We’re very proud to have gotten this settlement.”

Oklahoma County District Judge Dan Owens accepted the settlement Monday morning, despite objections from two shareholders.  Owens said Chesapeake has about 660 million outstanding shares, but only two shareholders voiced any complaint with the settlement, leading him to conclude it is fair and reasonable.

The judge is ready to sign off on the agreement, although the Chesapeake shareholders who objected to the deal still can appeal his ruling.  Attorneys on both sides of the case were pleased the judge agreed to accept their settlement agreement.  Gross said it is unusual for companies or executives in such securities cases to make significant payments like McClendon has agreed to do. He will pay $12.1 million, plus interest, for his map collection.  Gross also said Chesapeake has taken steps to establish a review process to avoid such compensation issues in the future.  “We’re very pleased with the outcome,” he said.  Chesapeake did not admit any wrongdoing in the settlement.

“Chesapeake stands behind its board’s approval of Chief Executive Officer Aubrey McClendon’s 2008 incentive award, but feels this settlement is in the company’s and its shareholders’ best interest,” said Henry Hood, the company’s general counsel. “We are pleased to put this matter behind us and hope shareholders and the public will focus on our efforts to promote natural gas as the clean fuel of choice for power generation and transportation, creating American jobs and reducing dependence on foreign oil.”

Read more: http://newsok.com/article/3644908#ixzz1l9lvhKyK

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ARDMORE, OK – Lawmakers in Oklahoma are aiming to expand the right to use deadly force against intruders. They want to give even more protections to business owners and employees.

Three years ago, lawmakers gave homeowners the right to use deadly force against intruders. Last April, the law was amended to include business owners but only when they thought they were were in great bodily harm.

Now lawmakers hope to extend it even further. They worry if a business owner has to wait until they’re in serious danger, it could be too late.

New Year’s Eve, 18-year-old Sarah McKinley shot and killed a man who entered her Blanchard, OK home and police said under Oklahoma law McKinely’s actions were justified.

Ardmore Police Captain Eric Hamblin said, “People should to be able to defend themselves with any force necessary up to and including deadly force if they believe or feel that they are in fear of their life of great bodily injury from another subject in their own home.”

The ‘Make My Day’ law was named after the Clint Eastwood’s character “Dirty” Harry Callahan in the 1983 film “Sudden Impact”.

Last April, it was amended to give business owners the right to use deadly force only when in fear of great bodily harm or death.

Now following the series of high profile cases like McKinely’s, Oklahoma lawmakers want to take the ‘Make My Day’ law one step further.

Oklahoma State Senator Frank Simpson said, “My concern is if they have to wait until someone actually enters their house it may be too late.”

The law which allows a homeowner or business employee to shoot an intruder when they think they are in great bodily harm could soon be amended to allow an employee of a business to shoot someone who enters “peacefully but with violent intent.”

“If someone enters your store with a gun in hand its pretty obvious what their intent is,” Simpson said. “Any proposed legislation should include someone who enters peacefully and look like an ordinary customer but demonstrates some violent intent and that would give the business owner right to protect themselves and its employees.”

Law enforcement say this may make criminals think twice.

“There have been business owners in Ardmore that have armed weapons on them at various times that I am aware of,” Hamblin said.

“We have actually seen a decrease in violent crime over the years and part of that can be attributed to criminals don’t know who is carrying a concealed weapon and who’s not,” Simpson said.

For now business owners are only protected under the law to use deadly force when they feel they are in danger of great bodily harm or death.

Lawmakers will look at amending ‘Make My Day’ when they return to legislative session in February.

Open carry gun law bill called crime deterrent

BY WAYNE GREENE - Tulsa World     0

The Tulsan is committed to extending Second Amendment rights, including passage of an open carry law in Oklahoma.

Scott Hannaford sits last week with his holster and gun magazines in Tulsa. Photo by JAMES GIBBARD, Tulsa World

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at a glance

PROPOSED OPEN CARRY LAW

Sen. Steve Russell, R-Oklahoma City, has proposed Senate Bill 1092, which would allow Oklahomans who are at least 21 years old to openly carry loaded or unloaded shotguns, rifles or pistol, if they have taken gun safety instructions from the National Rifle Association or other authorized instructors and carry a card verifying their training. The guns must be carried in a holster that is wholly or partially visible or in a scabbard or case designed for carrying guns. Under the proposal, guns could not be carried into government buildings, to government meetings, to prisons or jails, to elementary or secondary schools, to professional sports events, to pari-mutuel betting facilities or anyplace where guns are specifically prohibited by law. To make his point, he wears an empty holster when he walks through his daily life — anywhere it would be legal to carry a gun if the state Legislature were to pass a pending open carry law this year.

He wears it to stores and on the streets, and, yes, it draws a lot of strange looks, Hannaford said.  “It’s a great conversation starter,” he said.  Some people joke that he’s lost something, but Hannaford said he’s had a lot of good open discussions about what he believes and why he believes it.  In his efforts, Hannaford also is active in OK2A, a local gun rights group; writes on the opencarrry.org forum and carries on email conversations with people for and against gun rights.

His best argument for open carry is deterrence.  Criminals won’t be willing to victimize armed citizens. Police are good, but they can’t be everywhere, and openly armed citizens will naturally stop crimes from occurring, Hannaford said.

Oklahoma is one of only seven states without some sort of open carry law, according to opencarry.org

Sen. Steve Russell, R-Oklahoma City, has proposed a straightforward open carry law for consideration by the Legislature this year.

LAST YEAR’S CONTROVERSY

Open carry law was the centerpieces of one of the most dramatic and controversial moments in the Legislature last year.

House Bill 1647 would have allowed people “in fear of bodily harm” to carry guns.

The bill had been bottled up in a House committee, but its author, Rep. John Bennett, R-Sallisaw, was able to use parliamentary procedure to force the bill onto the House floor as the deadline for its consideration came near.

In a confusing, late-night flurry of floor action, Bennett ended up mistakenly accepting an amendment that essentially crippled his own bill, which then passed, although some of those voting for the measure said they didn’t realize what was going on.

The action essentially sidelined the issue for the rest of the legislative year.

‘WHATEVER IT TAKES’ Hannaford said he has hopes that this year the issue will be decided differently.  Oklahoma is largely rural state, and most of the people are comfortable with guns and are ready to extend gun rights, he said.  If the law passes, Hannaford said he won’t hesitate to fill his holster and then use that gun when necessary.  If it comes down to defending his life or those of his loved ones or even strangers, Hannaford said he’s willing to step forward.  “I’m willing to do whatever it takes to reduce crime and help those around me,” he said.

He can be emailed at ok2a2oc@yahoo.com.

Read more: http://newsok.com/article/3642669#ixzz1l5I7iKFy

Open carry law asking for problems

 Published: January 29, 2012

Those who want to carry a gun should get a concealed carry license and go through the test and background checks. If he can’t pass the requirements, he shouldn’t be able to carry a gun, open or concealed.

Arthur Schofield, Oklahoma City

Read more: http://newsok.com/open-carry-law-asking-for-problems/article/3643953#ixzz1l5DE1ATC

There are pitfalls and caveats.  A recent article published by the Daily Oklahoman shows that there may be some danger in shooting an intruder.  Recent developments in the Ersland Case would be instructive.  Check out the news story:

Some seek expansion of state ‘Make My Day’ law

 By SEAN MURPHY     0

Following a series of high-profile shootings deemed justified under the state’s “Make My Day” law, some lawmakers are looking to expand the state’s gun laws to allow citizens to defend themselves beyond just their homes.

This year, lawmakers are looking to expand the protections the law provides to include people who may enter a business peacefully but with “violent intent.”

Supporters say several recent high-profile cases underscore the importance of the law.

On New Year’s Eve, a young widow armed with a shotgun and a pistol gunned down a knife-wielding intruder at her rural Blanchard mobile home in a shooting Grady County prosecutors said was clearly justified under the law. It also was cited after a shooting Thursday in which a Midwest City resident shot and killed an armed invader who broke into his duplex.

“This is the third shooting in the last 15 months where a homeowner or resident has killed a suspect trying to unlawfully enter their home,” Midwest City Police Chief Brandon Clabes said after the shooting. “The Oklahoma ‘Make My Day’ law is doing what it was exactly designed to do — allow our law-abiding citizens the right to protect themselves from immediate danger while in the security of their home.”

STATE’S HISTORY

With a colorful state history that includes hardscrabble pioneer settlers with the lawless days of the wild West, the use of firearms to protect one’s home and family is interwoven into the fabric of Oklahoma society.

“Just look at the thieves, outlaws, vagabonds and gangsters that have seeded Oklahoma’s history,” said state Sen. Steve Russell, an Oklahoma City Republican who has been a fierce proponent of expanding gun rights. “We understand the need to protect ourselves, as do these innocent victims who had to kill these criminals as they burst into their homes.”

Russell says he intends to push this year for fewer restrictions on those who can purchase a concealed carry permit and an “open carry” bill that will allow law abiding citizens over the age of 21 to openly carry a firearm.

Don Spencer, who teaches classes that are required to obtain a concealed carry permit, said students frequently ask about the state’s “Make My Day” law.

“Most people are curious about the point at which it’s absolute that they can defend themselves,” said Spencer, who is also the deputy director of the Oklahoma Second Amendment Association. “Obviously, if the Girl Scouts appear on your door step, you don’t have the right to blow them away.

“But if a guy tries to kick down your door, absolutely you do.”

Spencer said his organization offered a free class to the Blanchard widow, 18-year-old Sarah Dawn McKinley, who was at her rural home with her 3-month-old son on New Year’s Eve when an intruder broke into her home. Authorities suspect the intruder, 24-year-old Justin Shane Martin, was looking for prescription drugs he believed belonged to McKinley’s late husband.

McKinley, who was armed with a small-caliber pistol and a shotgun, fired the shotgun as Martin burst through the door.

“She’s been through a lot, and I have a lot of respect for that young lady,” Spencer said.

And while McKinley’s case was a relatively simple one for prosecutors to determine justified, that’s not always the case, said Cleveland County District Attorney Greg Mashburn.

“Those are the easiest calls, because the stranger obviously brought the threat to the homeowner who was there,” Mashburn said. “But each case is different.

“It may be a true situation where it’s one defending their home, but you have to look at if it’s someone they had an argument with earlier in the day, or if there’s a prior relationship or bad blood. That could fuel it, and sometimes makes us skeptical.”

Oklahoma also has a so-called “Stand Your Ground” law that applies outside of the home and allows people to meet force with force, even deadly force, if they feel their life is threatened. And Mashburn said those cases can be even more difficult to determine, especially if one of the parties is killed.

“You have to look at all the surrounding circumstances and see what happened,” he said. “You have to really turn it inside out and look at it from every angle.”

Criminals also are familiar with state law and can often tailor their story to investigators to cover up a killing.

“We’ve even had situations where people try to bait someone to come over to their house and then claim ‘Make My Day,’” Mashburn said.

Read more: http://newsok.com/article/3644653#ixzz1l57lrNYM

A recent burglar met his untimely fate at the hands of a prepared, locked and loaded resident in Midwest City, Oklahoma.  The Daily Oklahoman published a story detailing the sordid series of events:

MIDWEST CITY — A resident alerted to a break-in by his growling dog shot and killed an armed burglar as the intruder kicked in the front door Thursday morning, police said.

Reginald Keith Joseph Jr.

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Burglar shot and killed in Midwest City

Jan 26A man inside his home said he fatally shot an intruder…

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 Midwest City Police Chief Brandon Clabes said Thursday’s shooting marks the third time in 15 months someone was killed by a resident while trying to break into a home in Midwest City.

“Maybe next time, these violent offenders will think twice about committing first-degree burglaries in Midwest City,” Clabes said.

The resident at a duplex in the 300 block of N Kendra Drive said he heard his dog growl then heard two hard kicks on his front door about 7:45 a.m.

He grabbed a gun from his bedroom and confronted a man who broke in. The intruder was also armed with a handgun, Clabes said.

The resident opened fire and hit the intruder once in the chest. The intruder, Reginald Keith Joseph Jr., 27, was taken to Midwest Regional Medical Center, where he died, Clabes said.

The name of the resident who shot the intruder has not been released. Clabes said the man is afraid of retribution from those who might have known Joseph.

Shooting appears to have been justified Clabes said it appears the shooting was justifiable.

“Based on the facts that we know, the suspect did actually kick the front door in as he entered the residence,” Clabes said. “The suspect was also armed with a handgun.”

Oklahoma County District Attorney David Prater will determine whether the shooting was justified after police have finished their investigation.

Dan Stephens said his sister-in-law is engaged to the shooter and lives at the duplex. Stephens said the woman was not home during the shooting. He said they had never seen the man, and the break-in was random.

Stephens said his sister-in-law does not want her name released because she fears retaliation from those who might know the intruder.

“She doesn’t want nobody else, I’m sure, to come, you know, and try to retaliate,” Stephens said. “They’re pretty shook up. He just took somebody’s life.”

Clabes said Joseph had previous arrests, including one in Edmond in 2010 for possession of a firearm after a previous conviction.  Similar cases in Midwest City

Read more: http://newsok.com/midwest-city-resident-fatally-shoots-burglar/article/3643628#ixzz1l53dREPP

Similar cases in Midwest City In the two most recent “make my day” cases in Midwest City before Thursday, prosecutors ruled the shootings by the residents were justified.

Two 15-year-old stepbrothers were shot in October 2010 by Midwest City resident Amanda Walworth, who found them in her living room. One of the teens, Marquis Lee Patterson, was killed. The other, Dewayne Edward Kemp, survived. Kemp and another man accused of being involved in the burglary are currently on trial, accused of murder, in the case.

In April 2011, a dispute between two men ended when one tried to force his way into the other’s home and was shot to death. Mark Wilkinson, 32, of Norman, was reportedly angry at Raymond Stauffer, 38, because of comments he made about Wilkinson’s wife possibly being involved in drugs.

Wilkinson tried to force his way into Stauffer’s Midwest City home and was shot to death.

“The Oklahoma ‘make my day’ law is doing what it was exactly designed to do — allow our law-abiding citizens the right to protect themselves from immediate danger while in the security of their home,” Clabes said.

Read more: http://newsok.com/midwest-city-resident-fatally-shoots-burglar/article/3643628#ixzz1l55CrBta

New law made Oklahoma City councilman’s felony DUI charge automatic

An Oklahoma law that took effect in November automatically made Oklahoma City Councilman Ronald “Skip” Kelly’s DUI charge a felony.

BY MICHAEL KIMBALL     0

Published: January 29, 2012

Oklahoma City Councilman Ronald “Skip” Kelly is among the first people affected by a new state law that makes a felony charge automatic against arrestees with previous DUI convictions.

Ronald “Skip” Kelly The city councilman was arrested Jan. 20.

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The law, which took effect Nov. 1, mandates a felony charge for anyone arrested on a drunken driving complaint within 10 years of the end of their sentence for a previous DUI conviction.

Those convicted of the felony face punishment of up to five years in prison, a fine of up to $2,500 and must be evaluated at their own expense for possible substance abuse treatment.

Kelly, 62, was charged last week in Oklahoma County District Court with felony DUI after his arrest Jan. 20 in northwest Oklahoma City.

He had previously pleaded guilty to a misdemeanor count of DUI in 2009, and his 10-year clock created by the new law started ticking when his two-year deferred sentence ended in May.

Some, but not all, repeat DUI offenders were charged with felonies before the new law took effect.

Kelly, who will lose his council seat if convicted of the felony, did not respond late last week to messages seeking comment. It isn’t clear whether he has hired an attorney. A pretrial conference for the new DUI charge is set for Feb. 16.

Defendants in criminal cases often negotiate with prosecutors to plead guilty to lesser charges.

TOUGHER DUI LAWS

The new law affecting Kelly is one of several changes state lawmakers made last year to make Oklahoma’s DUI laws tougher.

The Erin Elizabeth Swezey Act, named after a 20-year-old Edmond woman killed by a drunken driver in 2009, requires an interlocking ignition device installed on the vehicles of first-time DUI offenders. The offenders’ driver’s licenses also say “Interlock required,” signaling to a police officer the driver isn’t allowed to drive vehicles without the lock.

The device, which already was required for all repeat offenders and part of the sentences of some first-time offenders, requires a person’s blood alcohol content to be below the legal limit of 0.08 for the car to start.

The Swezey Act also lengthens the amount of time the devices are installed on the cars, which is longest for the most serious offenses and for those convicted multiple times.

BACKGROUND

Kelly was arrested Jan. 20 when a patrolling police officer found him in his wrecked car on NW 63 east of Western Avenue. Kelly has denied he was drunk, and said he was trying to avoid another vehicle that almost hit him at Shartel Avenue.

Police concluded Kelly’s account of the crash didn’t match the physical evidence. Police reported Kelly showed signs of being drunk and failed sobriety tests, and Kelly refused to take a breath or blood test.

Kelly has said he won’t resign and will serve out the remainder of his term, which expires in 2013. He has not committed to running for re-election.

His colleagues on the Oklahoma City Council who have commented about his arrest have expressed support for him, and some suggested he has a problem with alcohol and should receive the community’s support if he seeks treatment. Kelly has publicly denied being an alcoholic.

Read more: http://newsok.com/article/3644372#ixzz1kyTzUa88

These broadsides were directed at environmentalists who in the words of McClendon  say that fracking and the drilling boom it’s created has led to polluted air, has tainted groundwater and has made people sick.

McClendon made a point.  The criticism and protests of the environmentalists added nothing to the wealth of the nation, found an alternate source of energy or created jobs.

McClendon accused those critics of distorting the facts. He asserted there have been only a few dozen cases of methane migration of well-water supplies in northeastern Pennsylvania, and that residents were merely inconvenienced.  “Looking back, was anybody hurt? Was there any permanent or even temporary environmental damage? No, no and no. Some folks were inconvenienced, for sure, and for that we’re deeply sorry,” McClendon said. But he said the industry’s benefits — including lower home-heating bills, tens of thousands of new jobs, and millions of dollars of landowner wealth — more than outweigh the isolated cases of contamination.

Read more: http://newsok.com/chesapeake-ceo-takes-on-anti-drilling-extremists/article/3602038#ixzz1XUBgn2qC

The oil was always there, however, the economics and the technology were missing.  Oil and Gas prices were low in 1999, when George Mitchell put his company up for sale and there were no takers.  Larry Nichols, aka, Devon Energy, like a shark, smelled blood in the water, however, he bided his time until the price was right.  At the time he closed on the purchase of Mitchell Energy, paying $3.5 Billion Bucks, not many investment pundits were impressed.  However, Nichols’s vision and implementation of his vision proved the philistines of wallstreet wrong.

It would be three years after Devon purchased Mitchell Energy before the “modern era” of horizontal drilling with huge, AC/DC power and the robust construction to drill 30,000 feet would appear on the scene.

Horizontal drilling and slick water fracking technology was in its infancy in 1999 and it was not until about 2004 that the big rigs made their appearance.  Big rigs had always been around, however, they were few and far between.

Mechanical drilling rigs, where diesel engines powered the draw works, turntable, pumps and provided incidental electricity to operate the rig were the primary rigs available. Diesel electric rigs, primarily DC current rigs were bigger, more expensive and available for deep holes, however, it would be later before the big AC/DC rigs would be available for contract or lease.  For example a recent ad for the sale of a modern drilling rig shows:

Today’s new drilling realities require more power
than conventional wells and have given rise to
the development of the AC/DC SCR drill rig
powered by multiple generator sets. Deep
horizontal drilling is a growing practice around
the world and in areas of North America such as
the Barnett Shale in Texas, the Haynesville Shale
in Louisiana, the Fayetteville Shale in Arkansas and
the Marcellus Shale in Pennsylvania/New York.
While AC/DC electric rigs with SCR controls
dominate petroleum exploration today, operators
are constantly looking for ways to increase total
power availability, reliability and fuel efficiency.
The economics of petroleum exploration demand
that drilling costs be minimized and that drilling
speed be maximized. Savings won on the drill rig
translate directly to the bottom line for the
exploration company or well service provider.
These economic realities require generator sets
to deliver high specific power, low fuel
consumption and less maintenance.
n the search for new petroleum supplies and
better production from existing wells, drillers
have transitioned from boring simple vertical
wells to boring horizontal wells using relatively
new steerable drill motors. By drilling down and
then turning horizontally once the petroleum
structure has been located, more of the well
bore is exposed to the oil- or gas-producing
zone. Horizontal wells can therefore significantly
increase production from a fossil fuel deposit
while also reducing the number of secondary
wells needing to be drilled.
Other techniques, such as hydraulic fracturing of
the petroleum-bearing rock structure to increase
the flow of oil or gas, are now almost routinely
done as soon as drilling is completed. Today’s
wells are also significantly deeper than in the
past — up to 30,000 feet — involving heavier well
strings, higher drilling power requirements and
higher mud pumping pressures.

Devon’s drilling engineer, David Fortenberry said the first rig H&P developed for Devon is still working for the company in western Oklahoma‘s Cana play.

“That was the first application of the high-efficiency rig to an unconventional horizontal play,” he said. “We really feel like we set the standard. “That’s the model that most companies are following now.”

In addition to breaking in new technology, Fortenberry said Devon had to learn the nuances of operating horizontal wells. Many of their intricacies are the opposite of vertical wells.

He said input from H&P and other consultants helped to cut its well completion time from 33 days in 2004 down to 12 days.

David Foster a Devon engineer has been quoted, that wells in some shallower areas of the Barnett can be completed in about seven days.  From Spud to Completion in seven days?  Incredible.

Devon currently has more than 4,200 producing wells in the Barnett Shale.

Thanks to Jay F. Marks for some of the content of this article.