Annotate this Case

2007 OK 6
154 P.3d 1257
Case Number: 103443
Decided: 02/13/2007




¶0 Claimants for workers' compensation benefits challenge the order of the Honorable Ellen Edwards, Judge of the Workers' Compensation Court, deciding that two 2005 amendments to the Workers' Compensation Act should be applied to all claims regardless of the dates of injury by the claimants. One amendment defines "objective medical evidence" as "evidence which meets the criteria of Federal Rule of Evidence 702 and all U.S. Supreme Court case law applicable thereto," and the second states that compensation for permanent disability must be supported by competent medical testimony which includes application Rule 702 of the Federal Rules of Evidence. The Court holds that the 2005 amendments are procedural and apply to claims pending at the time the amendments were effective.


Walt Brune, Northcutt, Clark, Gardner & Hron, Ponca City, Oklahoma, & Thomas D. Boettcher, Boettcher, Boettcher & Lobaugh, Tulsa, Oklahoma, for Petitioners.

Andrew D. Downing, Rhodes, Hieronymus, Jones, Tucker & Gable, P.L.L.C., Tulsa, Oklahoma, for Real Party in Interest.


¶1 The sole issue in the case is whether U. S. Supreme Court opinions Daubert v. Merrell Dow Pharmaceuticals, Inc.,

¶2 In September 2001, Petitioners filed claims with the Workers' Compensation Court alleging that they were injured in July 2001 by exposure to arsine gas while employed by Air-X-Changers (Employer). In an Extraordinary Session in 2005 the Legislature amended

17. "Objective medical evidence" means evidence which meets the criteria of Federal Rule of Evidence 702 and all U. S. Supreme Court case law applicable thereto;

The amendment was effective July 1, 2005. 2005 Okla. Sess. Laws c. §§ 9, 35, (First Extraordinary Session). In that same Session the Legislature amended

¶3 In January 2006, Employer filed a motion in limine

¶4 Petitioners characterized the trial judge's order as a certified interlocutory order and requested our review. This Court may review a certified interlocutory order by a district court affecting a substantial part of the merits of the controversy.

¶5 This Court has original jurisdiction that "shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law." Okla. Const. Art. 7 § 4.

¶6 An extraordinary writ proceeding is not the usual procedure for reviewing the correctness of an order adjudicating a motion in limine. Christian v. Gray,

¶7 In Cole v. Silverado Foods, Inc.,

¶8 An exception to the general rule is that amendments relating solely to remedies and affecting only modes of procedure "are generally held to operate retroactively and apply to pending proceedings." King Mfg. v. Meadows, at ¶ 12, 127 P.3d at 589. We recently observed that "statutes relating solely to remedies and therefore affecting only modes of procedure are generally held to operate retroactively and apply to pending proceedings." Dean v. Multiple Injury Trust Fund,

Legislation that is general in its terms and impacts only matters of procedure is presumed to be applicable to all actions, even those that are pending. Statutes that relate solely to remedies and hence affect only modes of procedure--i.e., enactments which do not create, enlarge, diminish, or destroy accrued or contractual rights--are generally held to operate retroactively and apply to pending proceedings (unless their operation would affect substantive rights).

Cole v. Silverado Foods, Inc.

Thus, the question before us, like that in Cole, is whether the amended statutes represent more than a mere procedural reform and intrude upon substantive rights, specifically, the substantive rights of those claimants challenging the application of Daubert. Cole, at ¶ 11, 78 P.3d at 547. If the challenged amendments are substantive they must be given a prospective application and they have no effect upon the workers' compensation claims before us. Id. If the amendments are procedural they apply to the claimants.

¶9 In 2005 the Legislature made Federal Rule of Evidence, Rule 702, and U.S. Supreme Court opinions construing that Rule part of workers' compensation procedure.

Testimony by Experts

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 thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. R. 702, 28 U.S.C.A. App, (West Ann. 2001), (effective Dec. 1, 2000).

Federal Rule 702 was amended in 2000 in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. Advisory Committee Notes to Rule 702, 28 U.S.C.A. App, p. 40 (West Ann. 2001). Rule 702, as amended, is consistent with both Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, and Kumho Tire Co., Ltd. v. Patrick Carmichael et al., supra. Advisory Committee Notes to Rule 702, 28 U.S.C.A. App, p. 40-44 (West Ann. 2001).

¶10 Recent U. S. Supreme Court opinions construing or applying Rule 702 predate the effective date of the amended version.

¶11 Daubert provided a nonexhaustive list of factors for a trial judge to consider when determining the admissibility of evidence from a witness qualified as an expert by knowledge, skill, experience, training or education. The purpose of examining these factors is a determination whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue. The four factors are 1. Can the expert's theory or technique be, or has it been, tested; 2. Has the expert's theory or technique been subjected to peer review and publication; 3. Is there a "known or potential rate of error ... and the existence and maintenance of standards controlling the technique's operation;" and 4. Is there widespread acceptance of the theory or technique within the relevant scientific community. Christian v. Gray, at ¶ 8, 65 P.3d at 597 - 598, citing, Daubert,

¶12 Kumho explained that in Rule 702 "scientific" was merely one type of expert testimony, and that "technical or other specialized knowledge" were also types of expert testimony in Rule 702, and were thus governed by the Daubert opinion. This language [in the Rule] makes no relevant distinction between "scientific" knowledge and "technical" or "other specialized" knowledge. Christian v. Gray, at ¶ 10, 65 P.3d at 599, quoting Kumho Tire Co., Ltd. v. Carmichael,

¶13 Similar to Daubert, challenges to the reliability of an expert's opinion occurred in The Workers' Compensation Court prior to the 2005 amendment. Generally, evidence provided there is governed by the Oklahoma Evidence Code,

¶14 Of course, some procedures for the Workers' Compensation Court mandated by statute or rule are more specific than provisions of the Evidence Code, and the Rules of the Workers' Compensation Court recognize that the more specific procedure controls over any conflicting requirements.

¶15 Prior to the 2005 amendments, objections to evidence in the Workers' Compensation Court were often classified as either to "competency" or to "probative value." Lacy v. Schlumberger Well Service,

Alternatively, an objection to an exhibit's "probative value" is used to challenge the evidence for insufficiency as legal proof of (a) medical findings with respect to the presence or absence of compensable disability, or of (b) the compensable impairment's rating. In other words, when evidence is objected to as lacking in probative value, the issue is whether it is probative of the elements it seeks to establish once admitted.
Lacy, 839 P.2d at 159-160, note omitted.

A Daubert objection is similar to the well-known competency objection in the Workers' Compensation Court in that both objections determine the admissibility of evidence. A Daubert objection is also similar to the well-known probative-value objection in that both involve an inquiry whether the evidence offered is probative of the elements the evidence seeks to establish.

¶16 Claimants argue that Dr. H's medical report would have been admitted in July 2001 without a Daubert-required reliability determination on the issue of causation. Specifically, and with reference to respiratory claims in July 2001, they argue that Dr. H. could have determined causation and impairment based upon the "nature of exposure" as opposed to a "chemical analysis of toxic substance."

¶17 Prior to the 2005 amendments, the 2001 AMA Guides

The AMA Guides state the following:

Medical or scientifically based causation requires a detailed analysis of whether the factor could have caused the condition, based upon scientific evidence and, specifically, experienced judgment as to whether the alleged factor in the existing environment did cause the permanent impairment. Determining medical causation requires a synthesis of medical judgment with scientific analysis.

AMA Guides

¶18 In Zebco v. Houston,

While a physician need not predicate his opinion on a chemical analysis of the toxic substances claimed to have caused the employee's respiratory impairment, the medical expert must have enough information to show that the claimant had inhaled some particles known to be harmful. Here, the physician referred to the machine's emission as merely a "spray," a "mist," and as "various respiratory particulates." From his descriptions it is apparent the physician could not have known the substance claimed to have been injurious. For all we know from the history he considered, the spray could have been composed merely of water. Although he had drawn a causal nexus between the claimant's condition and some agent he called a "respiratory irritant," we conclude that the described source of functional loss is too indefinite for a probative medical assessment of causation.
Zebco v. Houston,

Prior to the 2005 amendments, a physician's opinion on injury from inhalation of a harmful substance was based upon (1) information that the claimant actually inhaled a particular substance, (2) information that this substance was harmful, and (3) information showing that claimant's medical condition is consistent with inhalation of a harmful substance so that the physician could draw a "causal nexus" between the claimant's post-exposure medical condition and the inhaled substance. Zebco, 800 P.2d at 247.

¶19 In City of Nichols Hills v. Hill,

¶20 The method to show causation in both Zebco and City of Nichols Hills is consistent with Daubert. In Christian v. Gray,

¶21 In City of Nichols Hills, the employer argued that the employee's injury was caused by exposure prior to the date claimed by the employee and in circumstances other than his employment. Id. 534 P.2d at 935. The physicians for both the employee and employer examined the same medical records, medical and employment history, medical test results, etc., but they arrived at different conclusions regarding when the employee was exposed. Id. 534 P.2d at 935. The method used by physicians for both employee and employer was proper for determining causation. As we indicated in Christian, experts may possess opinions that comply with Daubert but they may disagree on the issue of causation when they use either similar or dissimilar methods for arriving at their conclusions. Christian, at n. 20, 65 P.3d at 607. The fact that physicians could have admissible opinions with varying probative value prior to Daubert has not been changed by applying Daubert to proceedings in the Workers' Compensation Court.

¶22 We conclude that both before and after the 2005 amendments a workers' compensation claim for injury resulting from inhalation of a toxic substance is based upon scientific evidence and involves an experienced judgment as to whether the alleged factor in the existing environment caused the injury. Application of Daubert and Kumho by the 2005 amendments made no substantive change in the law. The Workers' Compensation Court correctly determined that Daubert and Kumho applied to the claims of Petitioners. We assume original jurisdiction to answer the question presented, and deny the petition for prohibition.


¶24 WINCHESTER, C.J., HARGRAVE, J. - Dissent


1 85 O.S.Supp.2005 § 17 (A)(1):

A. 1. The determination of disability shall be the responsibility of the Workers' Compensation Court. Any claim submitted by an employee for compensation for permanent disability must be supported by competent medical testimony which shall be supported by objective medical findings, as defined in Section 3 of this title, and which shall include an evaluation by the treating physician or an independent medical examiner if there is no evaluation by the treating physician, stating his or her opinion of the employee's percentage of permanent impairment and whether or not the impairment is job-related and caused by the accidental injury or occupational disease. A copy of any written evaluation shall be sent to both parties within seven (7) days of issuance. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. For purposes of this section, a physician shall have the same meaning as defined in Section 14 of this title and shall include a person licensed by another state who would be qualified to be a licensed physician under the laws of this state.

2 In its broadest sense, a motion in limine is any motion, whether used before or during trial, by which exclusion of anticipated prejudicial evidence is sought. Christian v. Gray, 2003 OK 10, n. 22, 65 P.3d 591, 610; Braden v. Hendricks, 1985 OK 14, 695 P.2d 1343, 1349.

3 This Court also possesses administrative authority over the Workers' Compensation Court. Okla. Const. Art. 7 § 6; Workers' Compensation Court v. Merit Protection Com'n, 1993 OK 145, 863 P.2d 1226 (original jurisdiction assumed an writ issued to the Merit Protection Commission to prevent proceedings against Workers' Compensation Court because administrative jurisdiction over that court is constitutionally vested in the Supreme Court).

4 See, e.g., Frasier & Frasier v. Oklahoma Workers' Compensation Court, 1993 OK 108, 859 P.2d 1098 (original jurisdiction assumed and prohibition issued to prevent unauthorized exercise of jurisdiction); City of Oklahoma City v. Sturm, 1979 OK 90, 596 P.2d 877 (original jurisdiction assumed and a writ of prohibition issued to prevent unauthorized re-litigation of claim); National Zinc Co., Inc. v. Sparger, 1977 OK 15, 560 P.2d 191, 193, 195 (original jurisdiction assumed, prohibition issued to prevent enforcement of a subpoena, and mandamus issued requiring transfer of proceeding).

5 The relief selected upon recasting must be procedurally proper, and this Court has recast a petition for certiorari to review a certified interlocutory order to a petition for writ of prohibition. Christian v. Gray, 2003 OK 10, n. 3, 65 P.3d 591. When deciding to recast a proceeding the Court has considered whether the issue is of first impression. Christian v. Gray, 2003 OK 10, n. 4, 65 P.3d at 596-597; S.W. v. Duncan, 2001 OK 39, ¶ 13, 24 P.3d 846. This Court has adjudicated a first-impression issue involving the Workers' Compensation Act in the context of assuming original jurisdiction and issuing a supervisory writ to a judge of The Workers' Compensation Court. Morrison v. Swank, 1971 OK 121, 489 P.2d 1328. The concept of judicial economy is present in those procedures designed to prevent an appellate court from hearing the same matter more than once. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 22, 987 P.2d 1185, 1195.

6 Some authority states that the 2000 amendment to Rule 702 was designed to make that rule consistent with the U. S. Supreme Court's construction of the pre-amended Rule 702. See, e.g., U.S. v. Brownlee, 454 F.3d 131, n. 10, 143 (3d Cir. 2006), ("In 2000, Rule 702 was amended to incorporate the holding in Daubert"); Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. ) ("Effective December 1, 2000, Rule 702 was amended to reflect the Supreme Court's recent decisions in Daubert and Kumho Tire Co."); Guy v. Crown Equipment Corp., 394 F.3d 320, 325 (5th Cir. 2004), ("The Daubert factors remain relevant to the determination of the reliability of expert testimony under Rule 702, as amended."); U.S. v. Conn, 297 F.3d 548, 555 (7th Cir. 2002) ("Rule 702 has been amended to reflect the Supreme Court's decision in Daubert").

7 We also have not construed the amended version of Federal Rule 702. The version of Federal Rule 702 in the Oklahoma Evidence Code, 12 O.S.2001 § 2702, is identical in substance to former Federal Rule 702 when that section was adopted. Christian v. Gray, ¶¶ 4, 6, 65 P.3d at 597. In Christian we stated that "The Oklahoma Evidence Code was adopted in 1978 by our Legislature and was modeled, in most parts, after the then current Federal Rules of Evidence. Id. at ¶ 4, 65 P.3d at 597, citing, 1 L. Whinery, Oklahoma Evidence, The Guide to the Oklahoma Evidence Code, Preface, (1985).

8 See, e.g., Weisgram v. Marley Co., 528 U.S. 440, 120 S. Ct. 1011, 145 L. Ed. 2d 958 (2000); Kumho Tire Co., Ltd. v. Patrick Carmichael et al., 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999); General Elec. Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

9 See 12 O.S.2001 § 2103(A): "Except as otherwise provided in subsection B of this section, this Code shall apply in both criminal and civil proceedings, conducted by or under the supervision of a court, in which evidence is produced." Professor Whinery commented on this language and stated that: "The word 'court' includes all courts in Oklahoma in which evidence is produced, including the Workers' Compensation Court, the district courts, and the municipal courts." 2 L. Whinery, Oklahoma Evidence, Commentary on the Law of Evidence, § 3.01, 41 (2d ed., 2000).

10 See, e.g., Zebco v. Houston, 1990 OK 113, n. 4, 800 P.2d 245, 247 (where we cited 12 O.S.1981 § 2705 and stated that an opinion by claimant's physician was admissible without an explanation of its basis, and explained that the Evidence Code cast on the cross-examining counsel the burden of showing that the opinion, once elicited, lacks probative value).

11 Rule 2, Workers' Compensation Court Rules. 85 O.S.2001 Ch. 4 App.: "Any matter of practice or procedure not specifically dealt with either by the Workers' Compensation Act or by these Rules will be guided by practice or procedure followed in the district courts of this state." Cf. Phillips v. Hedges, 2005 OK 77, ¶ 12, 124 P.3d 227, 231 (When there is a conflict between two statutes, one specific (or special) and one general, the statute enacted for the purpose of dealing with the subject matter controls over the general statute.; State ex rel. State Ins. Fund v. Accord Human Resources, Inc., 2003 OK 109, ¶ 15, 82 P.3d 1015, 1019 (same).

12 Probative evidence consists of both fact and reason possessing a quality of having the effect of proof, or tending to prove, or actually proving. See Blacks Law Dictionary, 1367 (4th ed. 1951) (defining probative); Globe Indem. Co. v. Daviess, 243 Ky. 356, 47 S.W.2d 990, 992 (1932) (defining probative evidence). In a Daubert sense, admissibility is dependent upon a probative value analysis, i.e., whether an expert's testimony possesses the quality of having the effect of proof, which in turn is based upon whether the expert's reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue.

13 The premises of claimants' example are in error. Daubert does not necessarily require a "chemical analysis of the toxic substance at issue" with regard to amount of exposure, and prior to Daubert evidence that a substance was indeed toxic, i.e., capable of causing the particular injury claimed to have been caused, was required for workers' compensation claims for exposure to a toxic substance. See the discussion herein of Christian v. Gray, infra., Martin v. Stratton, infra., Zebco v. Houston, infra. and City of Nichols Hills v. Hill, infra.