Date: 03-09-2013

Case Style: Eric Wyatt v. Security Alarms Co., Inc.

Case Number: CJ-2005-5787

Judge: Mary Fitzgerald

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: James E. Weger, Adam Strange and Sara C. Smith

Defendant's Attorney: Robert H. Alexander, John J. Love and Robert W. Ivy for Viking Corporation

Description: Eric Wyatt, Rebecca Wyatt, Eric & Rebecca Wyatt, DDS, P.C., Eastern Oklahoma Dental Institute, P.C. Access Dental Equipment, LLC sued Security Alarms Co., Inc., Southwest Fire Protection, Inc., The Viking Corporation, Security Alarms Monitoriing Co., LLC, Seneca Fire Engineering, LLC, and Assurance Company of America on products liability theories.

The claims made by parties are not available.

The pre-trial order provided in part:


In early 2004, Plaintiffs built a state-of-the-art dental clinic to house their practice. During construction, Plaintiffs purchased and had installed a dry-drop fire sprinkler system for their clinic, which was manufactured by Defendant the Viking Corporation. Southwest Fire Protection, Inc. installed the Viking sprinkler system. On April 30, 2005, one of the sprinkler heads located in an upstairs room of the clinic activated. Water discharged from the sprinkler head for several hours, in excess of 40,000 gallons, causing significant and substantial damage to their building, its contents, and the business, including loss of income from business interruption.

The damage to Plaintiffs’ dental clinic was caused by an activation of one of Viking’s sprinkler heads, which was installed on the second floor of Plaintiffs’ clinic. The activation was caused by a failure of the “frangible bulb,” which upon breaking, is designed to activate the sprinkler. The failure of the frangible bulb was caused by a manufacturing/assembly defect by Viking.

Plaintiffs seek actual damages for the repairs to their cJinic building and the replacement and/or repair of the equipment within the building that was damaged. Plaintiffs further seek loss of business income due to the interruption of business caused by the activation of the sprinkler. In addition, Plaintiffs seek damages for the emotional distress, inconvenience, loss of time, and expenses and costs incurred as a result of this litigation.

C. Defendant, The Viking Corporation’s Statement of Fads:

Plaintiffs allege that a fire sprinkler in their dental clinic activated unexpectedly and caused damage to their clinic. The sprinkler was manufactured by defendant Viking Corporation and installed by Southwest Fire Protection, Inc. Plaintiffs allege that the sprinkler discharged as a result of a manufacturing defect by the Viking Corporation, or as a result of a defect caused during installation of the sprinkler by Southwest Fire Protection, hic. Defendant Viking denies that the sprinkler contained a manufacturing defect and denies that any implied warranty was breached. Plaintiffs allege that their property was damaged and that they lost business profits as a result of the unexpected activation of the sprinkler. Defendants deny that plaintiffs were damaged to the extent alleged and assert that plaintiffs failed to mitigate their damages.

3. Plaintiff’s Contentions:

A. List All Theories of Recovery and the Applicable Statutes, Ordinances, and Common Law Rules Relied Upon.

Plaintiffs relied on products liability, breach of implied warranty and negligence theories.

Plaintiff sought:

1. The amount of the actual damages to the clinic and its contents: in excess of 51 million dollars;

2. Loss of business, in excess of $1.4 million dollars;

3. Punitive damages, in excess of $10,000;

4. Pre-judgment interest, post-judgment interest, all court costs and attorney fees;

5. Such other relief as this Court deems just and proper.

4. Defendant Contented:

List All Theories of Defense and the Applicable Statutes, Ordinances, and Common Law Rules Relied Upon.

A. Plaintiffs affirmatively abandoned claims of negligence against Viking four years ago when they replaced their 3” Amended Petition [alleging negligence against Viking] with their 4th Amended Petition which withdrew all claims of negligence against Viking.

Viking objects to plaintiffs’ introducing a new cause of action after the close of discovery and on the eve of trial. The Supreme Court holds that:

“[Fliling of an amend ginal petition or prior amendments, is an abandonment of all prior averments not contained in the amended petition.”

Edwards v. Andrews, Davis, Legg, Bixier, Milsien, & Murrah, 1982 OK 72. ¶4, 650 P.2d 857, 859 (OkIa. 1982); (Affirmed dismissal of Petition with prej udice based on facial violation of statute of limitations, when plaintiff abandoned requisite tolling allegation by filing an amended petition which did not plead tolling). Theories/Grounds for Recovery Applicable Statutes, Ordinances or Common Law Rules

James Weger must be disqualified as Plaintiffs’ trial advocate pursuant to Oklahoma Rule of Professional Conduct 3.7 because he is likely to be a necessary witness at trial. Plaintiffs and their attorneys waived the attorney client privilege on the record. Acting upon that waiver, plaintiffs’ attorneys made themselves necessary fact witnesses by voluntarily testifying and producing their client files and communications with plaintiff concerning the subject incident. The testimony and documents of plaintiffs’ attorneys voluntarily produced during discovery in this case, contradict the plaintiffs’ sworn testimony in this case.

Common Law. (See Defendant’s Motion to Disqualify Plaintiff’s Counsel (pending since March, 14, 2011); Defendant’s Renewed Request for Evidentiary Hearing on Pending Motion to Disqualify Plaintiff’s Attorneys As Trial Counsel and reply (Filed January 13, 2012 and February 3, 2012, respectively), and authority cited therein; transcript of evidentiary hearing held on March 23rd, 2012; and exhibits admitted into evidence at said evidentiary hearing. Plaintiffs failed to mitigate their damages Common Law

Smith-Horton Drilling Th. v. Brooks, 199 OK. 63, ¶65; 182 P.2d 499, 502 (OkIa. 1947) (“One who is injured by the acts of another is required to do that which an ordinarily prudent person would do under similar circumstances to mitigate or lessen damages.”)

Defendant will be entitled to reasonable litigation costs and reasonable attorney fees pursuant to its Offer of Judgment.

120.5. §1101.1 .

Should Viking be held liable to plaintiff, which 23 0.5. §831 common law and liability is specifically denied, Viking would be entitled to a set off from any verdict for the total of all amounts paid to plaintiff by other alleged tortfeasors. equity.

Plaintiffs’ alleged damages, if any, were caused in whole or in part by the acts and omissions of third parties over whom Viking had no authority or control. Common Law

To the extent plaintiffs’ claims are based on a theory providing for liability without proof of causation, the claims violate Viking’s rights under the Oklahoma and United States Constitution. Common Law, Oklahoma and United States Constitution.

Any alleged implied warranty was disclaimed and waived. 12A 0.5. §2-316

Consideration of any punitive damages in this civil action would violate the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution by allowing standardless discretion to the jury to determine punishment and by depriving defendant of prior notice of the consequences of its alleged acts.

United States Constitution Plaintiffs’ claims for punitive damages are limited by 23 O.S. § 9.1 (1995). 23 O.S. § 9.1

— Punitive damages are a punishment, a quasi- criminal sanction for which defendant has not been afforded the specific procedural safeguards prescribed in the Oklahoma Constitution and the Fifth and Sixth Amendments to the United States Constitution.

Oklahoma Constitution and the Fifth and Sixth Amendments to the United States Constitution.

With respect to plaintiffs’ demand for punitive damages, defendant specifically incorporates by reference all standards of limitations regarding the determination or enforceability of punitive damage awards which arose in the decisions of BMI’Vof North America, Inc. v. Gore, 517 U.S. 559 (1996); Cooper Industries, Inc. v. Lea therman Tool Group, Inc., 532 U.S. 424 (2001); State Farm Mid. Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003), and Philip Morris USA v. Williams, 549 U.S. 346 (2007).


United States Constitution and: BlvWVof North America, Inc. v. Gore, 517 U.S. 559 (1996); Cooper Industries, Inc. v. Lea therman Tool Group, Inc., 532 U.S. 424 (2001); State Farm Mut. Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003), and Philip Morris USA v. Williams, 549 U.S. 346 (2007).

Defendant objects that plaintiff is entitled to prejudgment interest on its claims. Defendant objects to plaintiffs’ claim that plaintiff can recover attorney fees on its product liability and breach of implied warranty claims. Plaintiff has not pled a negligence claim in its operative Fourth Amended Petition and should not be allowed to inject a long abandoned and (arguably) attorney fee bearing claim at this stage.

Defendant objects to plaintiffs’ claimed damages because plaintiffs failed to mitigate their damages. Defendant also objects to presentation of any damages evidence which plaintiffs and their experts did not disclose during discovery.

Common Law; Smith-Horton Drilling Co. v. Brooks, 199 OK. 63, ¶65; 182 P.2d 499, 502 (Okla. 1947)

Defendant objects to presenting the issue of punitive damages to the jury, because there is no “clear and convincing evidence” to support punitive damages.

23 0.5. § 9.1. McLaughlin v. National Ben. Lifr Ins. Co. , 1988 OK 41, §18; 772 P.2d 383, 389 (Okla. 1988).

Viking adopts and asserts all theories and legal positions to be set forth in Viking’s motions in limine and Daubert motions.

Outcome: FITZGERALD, MARY: CASE CALLED FOR JURY TRIAL ON 2-4-2013 THROUGH 2-8-2013. BOTH SIDES PRESENT IN OPEN COURT AND ANNOUNCE READY FOR TRIAL. PLAINTIFF PRESENT AND REPRESENTED BY JAMES WEGER/ SARAH SMITH. DEFENDANT PRESENT AND REPRESENTED BY ROBERT ALEXANDER/ ROBERT IVY. THE JURORS ARE CALLED AND SWORN TO QUALIFICATIONS. THE JURY IS IMPANELED AND EXAMINED FOR CAUSE. THE JURORS ARE ACCEPTED FOR CAUSE.

PEREMPTORY CHALLENGES WERE MADE AND 1 JURORS WERE EXCUSED FOR CAUSE. 12 JURORS WERE ACCEPTED AND SWORN TO TRY THE CASE.


FILE MINUTE: PEREMPTORY CHALLENGES

PLAINTIFF: 3 DEFENDANT: 3


THE FOLLOWING JUROR WAS EXCUSED FOR CAUSE: 1 THE FOLLOWING JURORS ARE ACCEPTED AND SWORN TO TRY THE CAUSE: 12 ALTERNATES: 1 OPENING STATEMENTS ARE MADE. 16 WITNESSES SWORN. RULE IS INVOKED. COURT REPORTER LISA FOSTER. PLAINTIFF PRESENTS EVIDENCE AND RESTS. DEFENDANT MOVES FOR DIRECTED VERDICT AND IS OVERRULED DEFENDANT PRESENTS EVIDENCE AND RESTS.

BOTH SIDES REST.

THE JURY IS INSTRUCTED AS TO THE LAW. CLOSING ARGUMENTS ARE MADE. THE SWEARING OF THE BAILIFF IS WAIVED AND ON 2-8-2013 AT 2:35PM, THE JURY RETIRES FOR DELIBERATION IN CUSTODY OF THE BAILIFF. ON 2-8-2013 AT 5:35 PM., THE JURY RETURNS INTO OPEN COURT WITH THEIR VERDICT, WHICH IS READ IN OPEN COURT, ORDERED RECORDED AND FILED, AND IS TO WIT:


VERDICT FORM

WE, THE JURY, IMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE PLAINTIFF FOR $1,500,000.00


11 JURORS CONCURRING, SIGNED THE FOREPERSON. JURY DISCHARGED.

WITNESSES SWORN: 16


ALL PER JOURNAL ENTRY TO BE SUBMITTED BY PLAINTIFF'S ATTORNEY WITHIN THIRTY (30) DAYS.

Plaintiff's Experts: Donald DeSelms, CPA; Bill Coleman, Analytical and Materials Engineering, Inc.; Gregory J. Cahanin, fire suppression

Defendant's Experts: Roland Huet, P.E., engineering

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