source: Caselaw Access Project

author:
WINCHESTER, J.
      OPALA, V.C.J., KAUGER, J., SUMMERS, J.

license: Public Domain

text:
    2003 OK 19
    Stephanie CLARK, Plaintiff, v. MAZDA MOTOR CORPORATION, a/k/a Mazda Motors Corporation, f/k/a Toyo Kogyo, Ltd., Defendants.
    No. 97,514.
    Supreme Court of Oklahoma.
    March 4, 2003.
    Thomas A. Wallace, Charles F. Moser, John B. Norman, John W. Norman, Bradley E. Norman, Norman, Edem, Meyer, Wallace, Norman, Cox & Moser, PLLC, Oklahoma City, OK, for plaintiff, Stephanie Clark.
    Bert M. Jones and Daniel D. Draper III, Rhodes Hieronymus Jones Tucker & Gable, Tulsa, OK, for defendants Mazda Motor Corp., a/k/a Mazda Motors Corporation, f/k/a Toyo Kogyo, Ltd., and Mazda Motor of America, Inc.
    Rex K. Travis, Oklahoma City, OK, Charles W. Adams, The University of Tulsa College of Law, Tulsa, OK, for amicus curiae Oklahoma Trial Lawyers Association.
    Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Reston, VA, P. Michael Jung, James K. Peden, III, Strasburger & Price, L.L.P., Dallas, Texas, Robert H. Alexander, Jr., John J. Love, The Law Office of Robert H. Alexander, Jr. P.C., Oklahoma City, OK, for amicus curiae Product Liability Advisory Council, Inc.
   WINCHESTER, J.

T1 The instant matter involves a question certified by the United States District Court for the Western District of Oklahoma in a manufacturers' products liability case. We are asked to answer the question of whether 47 O.S.2001, § 12-420 of the Oklahoma Mandatory Seat Belt Act, 47 O.S.2001, § 12-416 et seq., as interpreted in Bishop v. Takata Corp., 2000 OK 71, 12 P.3d 459, bars the admission of evidence of seat belt use or non-use, in a manufacturer's products liability crashworthiness case. The question is answered as follows: Section 12-420 does not bar the admission of evidence of the use or non-use of seat belts in a manufacturer's products liability erashworthiness case, although it prohibits introduction of such evidence to impute negligence or fault to a person who elects not to wear a seat belt.

[ 2 We held § 12-420 of Oklahoma's Mandatory Seat Belt Use Act did not preclude admission of evidence pertaining to seat belt use or nonuse in a manufacturers' products liability action for a defective seat belt restraint system in Bishop v. Takata Corp., 2000 OK 71, 12 P.3d 459. The Bishop matter came to us as a certified question from the United States District Court for the Western District of Oklahoma, Honorable Lee R. West. We discussed the implications of the Mandatory Seat Belt Act and concluded it protects persons in civil proceedings from connotations of fault but does not preclude admission of evidence pertaining to an automobile's design. Bishop, 2000 OK 71, ¶¶ 21-22, 12 P.3d 459, 466. In Bishop, the issue concerned the condition of the seat belt, as opposed to the conduct of the seat belt user. Bishop, 2000 OK 71, ¶ 12, 12 P.3d 459, 463. The plaintiff therein sought to introduce evidence of a defective seat belt that allegedly disengaged and caused her to be thrown from the vehicle. In the instant case, it is the defendant manufacturer who seeks to introduce seat belt evidence. Once again, as in Bishop, it is the design, construction and condition of the seat's occupant restraint system that is at issue herein, and not the conduct of the vehicle occupant who either used or elected not to use the seat belt.

Facts

T3 The facts reported by the United States District Court are as follows. This case arises from a multi-vehicle accident in which the 1989 Mazda 626 driven by plaintiff, Stephanie Clark, (hereinafter "Clark," crossed the center median of the H.E. Bailey Turnpike and was involved in four different collisions. In the first two, Clark's Mazda collided with a southbound pickup and the pickup's stock trailer. The third and fourth collisions occurred when Clark's Mazda was struck twice by a southbound tractor-trailer. The fourth collision ejected Clark out the back window of the Mazda, and amputated her lower left arm. Clark's impact with the pavement paralyzed her.

¶4 The facts reported to the Court establish that the safety restraint system in Clark's Mazda included a shoulder belt that engaged automatically when the driver closed the door. This shoulder belt was across Clark's torso at the time of the collisions. Clark was not wearing the manual lap belt.

T 5 An initial review of the elements essential to a successful manufacturers' products lability claim is necessary as we begin our analysis of the legal issue presented by this federal certified question. We set forth the legal blueprint for a manufacturers' products liability claim in Kirkland v. General Motors Corp., 1974 OK 52, 521 P.2d 1353. In Kirkland, we articulated three elements a plaintiff must prove and determined that upon plaintiff's proof of these elements, a manufacturer incurs strict liability. These three elements, as they pertain to a product manufacturer such as Mazda, are as follows:

1) the product was the cause of the injury;
2) the defect existed in the product at the time the product left the manufacturer's possession and control;
3) the defect made the product unreasonably dangerous to the plaintiff or to the plaintiff's property.

Kirkland, 1974 OK 52, ¶¶ 29-31, 521 P.2d 1353 at 1363.

T 6 Clark brings the instant manufacturers' products liability action alleging a defective seatback and/or seat design, a theory that calls into question the design of the seat's occupant restraint system in the Mazda 626 automobile. Defendants, (hereinafter referred to collectively as "Mazda,") assert it was Clark's failure to wear her lap belt, (a component of the Mazda 626 seat's occupant restraint system) that caused her body to be moved within the vehicle in such a way that the force of the final collision collapsed the driver's seat and ejected her from the car. Mazda seeks to offer evidence that Clark would not have been ejected had she worn the lap belt, to prove the seat back and/or seat design are not defective.

T7 The lap belt, the shoulder belt, the driver's seat and seat back cumulatively comprise the seat's occupant restraint system in the Mazda 626. If we hold that Mazda may present evidence the lap belt was designed to keep occupants from being ejected and that this feature was not utilized by Clark, the holding is harmonious with our decision in Bishop to allow the plaintiff therein to introduce seat belt evidence pertaining to automobile design, as opposed to any negligence or fault of the plaintiff, the latter of which is prohibited by § 12-420.

T8 We are confident that our limitation of evidence regarding seat belt use to those products liability actions in which the vehicle seat's occupant restraint system is at issue adequately safeguards against Clark's concern that auto manufacturers will claim seat belts are "safety components" in all manufacturers' products liability cases. The shoulder belt, lap belt, driver's seat and seat back are either physically connected to each other or are so closely aligned in the Mazda 626 as to be a part of the seat's occupant restraint system.

T9 Clark contends the statute requires only that she wear the shoulder belt. While no legal authority is cited for her conclusion, we note that Clark's compliance with the seat belt statute is not at issue herein. Clark apparently contends she complied with the statute in an effort to demonstrate a defect in Mazda seat's occupant restraint system, reasoning that the shoulder belt alone should have restrained her from being ejected, and since it failed to do so, the driver's seat and/or seat back are defective in design. However, she cannot selectively eliminate evidence pertaining to certain components of the seat's occupant restraint system such as the lap belt, while offering evidence as to other elements such as the shoulder belt, driver's seat and seat bracket. Such an attempt misconstrues our holding in Biskop and ignores the statutory intent pertaining to § 12-420 we articulated therein.

110 The question is answered as follows: 47 O.S.2001, § 12-420, as interpreted in Bishop v. Takata Corp., 2000 OK 71, 12 P.3d 459, does not bar the admission of evidence of the use or non-use of seat belts in a manufacturer's products liability erashwor-thiness case.

QUESTION ANSWERED.

OPALA, V.C.J., HODGES, HARGRAVE, SUMMERS and WINCHESTER, JJ., Concur.

WATT, C.J. (joins KAUGER, J.), LAVENDER (joins KAUGER, J.), KAUGER and BOUDREAU (joins KAUGER, J.) JJ., Concur in Result.

OPALA, V.C.J.,

with whom SUMMERS, J., joins in part, concurring.

11 I concur in today's opinion and write separately to provide an additional analysis of the question to be answered.

12 The manufacturer sued for imposition of products liability must be afforded full opportunity to show that (a) the seat's occupant restraint system was free of the attributed harm-dealing defect and/or (b) the plaintiff's injury is unrelated to the manufacturer's alleged breach of duty. In discharging the onus of showing a Hability-defeating defense, it may likely prove critical also to demonstrate that, at the time in question, the provided restraint mechanism stood disengaged, in whole or in park Due process would indeed mean very little if in the described scenario, a legislatively erected $ 12-420 bar were potent enough to destroy the manufacturer's only means of exoneration through its proof of an absent causal nexus between the plaintiff's harm and the allegedly defective product. Oklahoma's due process is co-extensive with that in the federal constitution. Fair School Finance Council v. State, 1987 OK 114, ¶ 54, 746 P.2d 1135, 1148 n. 48. Statutory barriers to essential proof of one's innocence (in a criminal case) or of one's complete exoneration (in a civil case) must yield to the Constitution's superior gauge of fundamental fairness. See, e.g., Rock v. Arkansas, 483 U.S. 44, 62, 107 S.Ct. 2704, 2714, 97 L.Ed.2d 37 (1987); Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2151-52, 60 L.Ed.2d 738 (1979), Davis v. Alaska, 415 U.S. 308, 319-20, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973); Washington v. State of Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). Similar law-imposed obstacles to those encountered here in § 12-420, which unreasonably impede full disclosure of the truth, are an anathema to due process. In Re Adoption Of C.D.M., 2001 OK 103, ¶ 1, 39 P.3d 802, 813 n. 5 (Opala, J., dissenting); Three M Investments, Inc. v. Ahrend Co., 1992 OK 33, ¶ 9, 827 P.2d 1324, 1335 n. 34 (Opala, C.J., concurring in part and dissenting in part).

¶ 3 It is far from clear why the question we answer today was certified to this court, unless, of course, counsel succeeded in persuading the federal trial judge that in products litigation the provisions of § 12-420 may be regarded as Oklahoma's substantive law. Several extant federal decisions appear to have so concluded with respect to similar enactments from other states. Oklahoma's own precedent militates strongly in favor of an opposite view. If there was ever any doubt about the character of the § 12-420 bar in its application to products cases, it should now appear more clearly resolved than ever before. Today's opinion plainly declares the bar to apply solely to negligence cases. It does not govern products liability litigation. Our conclusion should firmly free the certifying court of any concern about the bar's application to the trial of this case. Once the § 12-420 bar is swept away, admissibility of an occupant's use or non-use of restraints will, in this case, be controlled solely by the federal evidence law's standards of relevance and, in state-court cases, by the standards of relevance under the Oklahoma Evidence Code. They should give ample comfort to the plaintiff and no small amount of protection to the defendant who, much unlike in negligence cases, must wage a forensic battle (for its product's reasonable safety) without the benefit of the comparative fault's Hability-reducing defense Only then will evenhanded fairness, our legal tradition's age-old prophesy, once again carry the day for the claim we make to uncompromising excellence in our adversarial process of adjudication.

'I 4 In short, for products liability litigation § 12-420 is not entitled to a substantive-legal-norm status. This is so because for that class of actions the text of § 12-420, as construed by this court's jurisprudence, leaves entirely unaffected the merits of plaintiffs' claims (and of the defendants' defenses against them).

T5 For negligence cases, on the other hand, the § 12-420's effect is quite different. There the merits are indeed affected by the impact of the section here in contest, which makes the use (or non-use) of seat belts unavailable both as proof of one's due care as well as of its want. In negligence cases, both parties are affected alike by the § 12-420 evidentiary bar. Neither is able to take advantage of the statute that requires seat belts to be fastened. The party plaintiff stands barred from showing compliance (by its use of restraints) and the defendant from demonstrating the plaintiff's nonobservance. On the other hand, in the products lability litigation class, the § 12-420 bar, were it to become applicable, would inure solely to the plaintiff's advantage. There it would most surely exelude a party defendant's tendered proof of an absent causal nexus between its own breach of duty and the plaintiff's harm.

KAUGER, J.,

with whom WATT, C.J., LAVENDER and BOUDREAU, JJ. join, concurring in result:

11 The majority responds to the certified question. Nevertheless, the angwer provided is so broad as to provide confusion rather than clarity. Read in isolation, the answer is so encompassing as to swallow the rule of 47 00.98.2001 § 12-420 that generally the use or nonuse of seat belts is not proper evidentiary material for submission in a civil suit in Oklahoma. Neither the practicing bar nor the bench should read the majority to condone the admission of evidence of the use or non-use of seat belts in all manufacturer's products liability erashworthiness cases.

12 Although the body of the opinion narrows the broad answer contained in the action clause, in the opinion's opening paragraph and in the conclusion of the majority opinion, to conform the answer to the question certified with the applicable law stated in the opinion, the question should be answered as follows:

"Title 47 0.98.2001 § 12-420 prohibits the introduction of the use or non-use of seat belts to impute negligence or fault to a person electing not to wear a seat belt. Nevertheless, if the driver brings a manufacturer's products liability cause which implicates the seat's entire occupant restraint system, the introduction of use or non-use is controlled by our pronouncement in Bishop v. Takata Corp., 2002 [2000] OK 74, 12 P.3d 45 [459]. However, before evidence of the use or non-use of a seat belt may be introduced, the manufacturer must demonstrate that the erashwor-thiness of the device claimed to be defective by the plaintiff is so integrated with the seat's entire occupant restraint system as to require consideration of the allegedly defective device and the seat's entire occupant restraint system as one unit."

SUMMERS, J.

concurring.

§1 Although I concur generally in the opinion, I also agree with the separate concurring opinion insofar as it would impose a due-process requirement to allow a defendant manufacturer to defend the safety, or crashworthiness, of its product by showing any relevant facts bearing upon the causation of the injury alleged to have been caused by the defendant's having provided an unsafe product.

      . 47 0.$.2001, § 12-420 provides:
      "Nothing in this act shall be used in any civil proceeding in this state and the use or nonuse of seat belts shall not be submitted into evidence in any civil suit in Oklahoma."

      . The instant matter involves crashworthiness issues that arise in cases of second impact. We addressed the distinction between injuries received in the "first collision or impact" and those received in a "second collision or impact," in Lee v. Volkswagen of America, Inc., 1984 OK 48, ¶ 11, 688 P.2d 1283, 1286. Lee involved "second impact injuries" that arose in an automobile accident wherein the driver and passenger in a Volkswagen "Beetle" were ejected and suffered injuries as a result. Plaintiff's manufacturers' products liability theory in Lee was that a defective door latch allowed the door to open, thus causing him to be ejected and injured.

      . We note that Clark already has incorporated a component of the seat belt into her theory of the case, by her reliance on the shoulder belt alone, as the restraint system that allegedly failed to preclude her ejection.

      . In Kirkland, we adopted the definition of "unreasonably dangerous" contained in § 402A comment g of the Restatement of Torts, Second Series, to-wit:
      ''The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." '
      Kirkland, 1974 OK 52, ¶ 26, 521 P.2d 1353, 1362,-1363.

      . The provisions of the evidentiary bar in question, found in 47 0.$.2001 § 12-420, are:
      Nothing in this act shall be used in any civil proceeding in this state and the use or nonuse of seat belts shall not be submitted into evidence in any civil suit in Oklahoma.

      . In the trial of a diversity case U.S. courts are governed solely by federal procedural law. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 426-27, 116 S.Ct. 2211, 2219, 135 L.Ed.2d 659 (1996); Bankers Trust Co. v. Lee Keeling & Associates, Inc., 20 F.3d 1092, 1099 (10th Cir.1994).

      . Gardner By and Through Gardner v. Chrysler Corp., 89 F.3d 729, 736 (10th Cir.1996); Barron v. Ford Motor Co. of Canada Ltd., 965 F.2d 195, 199-200 (7th Cir.1992); Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3rd Cir.1992); Milbrand v. Daimlerchrysler Corp., 105 F.Supp.2d 601, 604-05 (E.D.Tex.2000).

      . Bishop v. Takata Corp., 2000 OK 71, 12 P.3d 459, 466.

      . 12 O.S.2001 § 2101 et seq.

      . Kirkland v. General Motors Corp., 1974 OK 52, ¶ 47, 521 P.2d 1353, 1367.

      . See Bishop, supra note 4, at 466, where we held that products liability litigation stands excluded from the purview of § 12-420, explaining that [alt issue in a defective seat products lability case is the condition of the seat belt, and not the conduct of the seat belt user."

      . An enactment that does not change the merits of any claim (or of any defenses available against it) but addresses itself solely to matters of evidence, practice or procedure does not add any contents to the corpus of a state's substantive law. Flick v. Crouch, 1967 OK 131, 434 P.2d 256, 261. For definition of an "issue on the merits," see Shamblin v. Beasley, 1998 OK 88, 967 P.2d 1200, 1207.

      . In short, in negligence litigation, the use or non-use of restraints is removed from the merits of the case both as an element of the claim and of any available defense against it. See Shamblin, supra note 7 at 1207.

      . Title 47 0.$.2001 § 12-420 provides:
      ''Nothing in this act shall be used in any civil proceeding in this state and the use or nonuse of seat belts shall not be submitted into evidence in any civil suit in Oklahoma."

      . The concurring opinion goes well beyond the question certified. The "additional analysis" is utilized to broaden the range of cases in which seat belt evidence may be admitted. . The author of the concurring opinion would allow evidence of the use or nonuse of seat belts in all manufacturer's products liability causes whether or not the seat's restraint system was called into question by the plaintiff. I am unconvinced that 47 ©.S.2001 § 12-420, see note 1, supra, today's opinion or any of this Court's jurisprudence requires such a broad and all encompassing result. Certainly, there is nothing in the language of the statute that would require it be applied to negligence only cases as the concurrence indicates.
      The concurrence cites Bishop v. Takata Corp., see note 3, infra, for the proposition that its language indicates that 47 O.S.2001, § 12-240, see note 1, supra, is not a part of Oklahoma's "substantive" law. The opinion does not address this issue. It's holding is clearly stated in T2 providing in pertinent part:
      "... The question is answered as follows: although the Act prevents a person from being penalized in a civil proceeding for choosing not to wear a seat belt, it does not prohibit the introduction of evidence of the use or nonuse of seat belts in a manufacturers' liability action for a defective seat belt restraint system."
      It does not, as the author of the concurring opinion leads the reader to believe, contain any language indicating the seat belt statute will be inapplicable in all manufacturers' products liability cases.

      . In Bishop v. Takata Corp., 2000 OK 71, 12 P.3d 459, we were asked to answer the certified question: whether 47 O.S.2001 § 12-420 prohibited the admissibility of evidence of the "use or non-use of a seat belt ... in any civil suit in Oklahoma" for a manufacturers' products liability claim based on a defective seat belt restraint system. We answered and determined that the statute prevented a person from being penalized in a civil proceeding for choosing not to wear a seat belt. However, it did not prohibit the introduction of evidence of the use or nonuse of seat belts in manufacturers' liability actions for a defective seat belt restraint system.


author: JOE C. TAYLOR, Judge:

text:
    2003 OK CIV APP 32
    James MINER and Matthew Grudowski, Plaintiffs/Appellants, v. MID-AMERICA DOOR COMPANY, Defendant/Appellee.
    No. 96,502.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Jan. 22, 2002.
    Certiorari Denied March 10, 2003.

      Lori L. Young, Baumert, Cummings, Hiatt & Young, Ponca City, for Plaintiffs/Appellants.
    Rachel C. Mathis, Jason L. CGHlass, Richards & Connor, Tulsa, for Defendant/Appellee.
   Opinion by

JOE C. TAYLOR, Judge:

11 Plaintiffs, James Miner and Matthew Grudowski, appeal from the trial court's order granting summary judgment in favor of Defendant, Mid-America Door Company (Defendant or Mid-America), in this action alleged to have stemmed from sexual harassment by Plaintiffs' co-worker and alleged supervisor. The issue on appeal is whether the evidence, viewed in a light most favorable to Plaintiffs, demonstrates that disputed issues of material fact exist to support Plaintiffs claims. Based on our review of the record and the applicable law, we find that, as to Plaintiffs' theories of recovery based on discrimination and retaliatory discharge under Title VII of the federal Civil Rights Act of 1964 (as amended), disputed facts exist and the trial court erroneously interpreted Oklahoma law. We therefore reverse its judgment in part and remand for further proceedings.

Background Facts and Procedural History

12 Mid-America is a manufacturer of overhead doors. Plaintiffs, both male, are former assembly line workers who were initially employed in late 1999 to work at the company's Ponea City plant. The parties agree that Plaintiffs' claims arise primarily from verbally abusive and physically threatening conduct by Terry Hutson, a male coworker who worked on the line. Though Mid-America denied Hutson was Plaintiffs "supervisor" as Plaintiffs claimed, Plaintiffs presented evidence that Hutson had the authority to direct their daily work activities and assign them tasks. There is no claim that any of the parties is homosexual.

13 In deposition testimony, Plaintiffs testified Hutson regularly verbally abused them and physically threatened them, calling them demeaning and humiliating names that focused on their masculinity and genitalia. Plaintiffs testified this conduct occurred daily and continually, and that their complaints to Mid-America's management were neither taken seriously nor reasonably and promptly addressed. Plaintiff Miner also testified Hutson had physically assaulted him after Miner suggested Hutson should get to work on a project rather than complain about it.

14 Though Plaintiffs testified Hutson generally was rude to everyone on the job, they testified that they did not hear him make sexually explicit comments and genital references to Mid-America employees who were female, nor did he physically threaten female workers. Though Hutson denied directing his conduct at Plaintiffs "because they were male," he also testified that the only employees to whom he directed such conduct were other male workers. He further testified that he recognized such comments were not appropriate for the workplace.

15 In February 2000, both Plaintiffs were terminated, purportedly for reasons related to absenteeism. They filed this action after exhausting their administrative remedies with the Oklahoma Human Rights Commission and the Equal Employment Opportunity Commission.

T6 Plaintiffs' petition alleged hostile work environment sexual harassment and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, specifically under 42 U.S.C. § 2000e-2(a)(1), as implemented in Oklahoma by the state Anti-Discrimination Act, 25 §§ 1101 through 1901. They also asserted state-based, common law tort claims for wrongful termination based on breach of public policy and breach of an implied contract of employment; assault and battery; and intentional infliction of emotional distress. Their allegations included Hutson's abusive behavior; Mid-America's failure to reasonably respond to Plaintiffs' complaints about the behavior; Mid-America's alleged termination of Plaintiffs in retaliation for complaining about Hut-son's behavior and consulting an attorney; and Mid-America's alleged failure to follow the progressive discipline procedure of its employee policy and procedures manual in discharging Plaintiffs.

17 Mid-America denied Plaintiffs' allegations, asserted a number of affirmative defenses, and, following discovery, moved for summary judgment, arguing the undisputed facts showed Plaintiffs could not prove their claims as a matter of law. The trial court granted the motion in part, finding Hutson's "abusive language and actions ... while vile and repugnant, did not constitute gender based discrimination," and thus could not support Plaintiffs' Title VII diserimination claim. The court further found the undisputed facts failed to support Plaintiffs' claim for breach of implied employment contract, assault and battery, and intentional infliction of emotional distress, and thus entered summary judgment in Mid-America's favor on those theories.

¶8 The court, however, denied Mid-America's motion as to Plaintiffs' state-law claim for wrongful (retaliatory) discharge, based in part on its determination that facts were disputed as to whether Plaintiffs' termination was retaliatory, and in part on its determination that the Oklahoma Supreme Court "implicitly" held, in Collier v. Insignia Financial Group, 1999 OK 49, 981 P.2d 321, that Title VII does not provide an adequate remedy for retaliatory discharge. Plaintiffs lodged this appeal, asserting error in the court's rulings on their Title VII, breach of implied contract, and intentional tort theories of recovery.

Standard of Review

T9 On review of an order granting a motion for summary judgment, we "will examine the pleadings and evidentiary materials to determine what facts are material to [the] cause of action, and to determine whether the evidentiary materials introduced indicate whether there is a substantial controversy as to one material fact and that this fact is in the movant's favor." Ross, by and through Ross v. City of Shawnee, 1984 OK 43, ¶ 7, 683 P.2d 535, 536. Review of such a judgment presents this court with a legal issue, meaning that our examination of the trial court's decision is de novo, ie., without deference to the lower court's determination. See Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100, 1103.

¶10 Summary judgment is appropriate only if the record discloses uncontroverted material facts that fail to support any legitimate inference favoring the well-pled theory of the party against whom the judgment was granted. The court must review and construe the evidence presented, together with all inferences and conclusions to be drawn from it, in a light most favorable to the party opposing the motion. See First Nat'l Bank & Trust Co. of Vinita v. Kissee, 1993 OK 96, ¶ 7, 859 P.2d 502, 505; Rose v. Sapulpa Rural Water Co., 1981 OK 85, ¶ 2, 631 P.2d 752, 754. "Even when basic facts are undisputed, motions for summary judgment should be denied, if under the evidence, reasonable persons might reach different conclusions from the undisputed facts." Prichard v. City of Okla. City, 1999 OK 5, ¶ 19, 975 P.2d 914, 917.

Analysis of Plaintiffs' Claims and Theories of Recovery

Title VII-Sexual Harassment

111 Under the Civil Rights Act of 1964, it is an unlawful employment practice to discriminate against an individual "because of such individual's sex." 42 U.S.C. § 2000e-2(a)(1). The Act also prohibits discharge of an employee because the employee "has opposed any practice made an unlawful employment practice" by Title VII. 42 U.S.C. § 2000e-8(a). A claim under federal law for discrimination based on sexual harassment pursuant to § 2000e-2 was first established in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), where the United States Supreme Court recognized that sexual harassment may take two forms: (1) harassment involving the conditioning of employment benefits on sexual favors, known as quid pro quo harassment; and (2) harassment that is so severe and pervasive that, while it may not affect economic benefits, it creates a hostile or offensive working environment that effectively alters the victim's conditions of employment and results in an "abusive working environment." Id. at 65-67, 106 S.Ct. at 2404-05. See also Marshall v. OK Rental & Leasing, 1997 OK 34, ¶¶ 12-13, 989 P.2d 1116, 1119-20 (disapproved of on other grounds by Collier v. Insignia Fin. Group, 1999 OK 49, 981 P.2d 321).

¶12 Plaintiffs claims are based on alleged hostility in their work environment that would not have occurred if they had not been male. In other words, they assert that, because of their gender, they were subjected to harassment in the form of verbal and physical abuse that was sufficiently severe and pervasive to create an abusive working environment, and that they were terminated because they complained to management and hired an attorney.

113 The fact that Plaintiffs and Hutson are all males does not impede Plaintiffs' claim. The United States Supreme Court recognized same-sex sexual harassment as a cognizable claim under Title VII in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). There, a male employee brought an action against his former employer, co-workers, and supervisor based on their conduct of subjecting him to repeated sex-related, humiliating conduct, including threats to his physical well being. Holding specifically that "nothing in Title VII necessarily bars a claim of discrimination 'because of ... sex' merely because the plaintiff and the defendant ... are of the same sex," id. at 79, 118 S.Ct. at 1001-02, the court delineated the critical areas of inquiry under a Title VII claim as being (1) whether members of one sex are exposed to disadvantageous conditions of employment because of their gender, and (2) whether the behavior in question is so objectively and subjectively offensive as to alter the conditions of the victim's employment. See id. at 80-81, 118 S.Ct. at 1002-03.

{14 The court in Oncale emphasized that its decision was not intended to expand Title VII into a "general civility code," however, and that the conduct in question must be viewed in the context of the workplace where it occurs:

, [The statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex....
[It forbids only behavior so objectively offensive as to alter the 'conditions' of the victim's employment....
In same-sex (as in all) harassment cases, [the] inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.... Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.

Id. at 81-82, 118 S.Ct. at 1002-03.

115 The questions of whether harassment is due to gender and whether it is so severe and pervasive as to alter the conditions of employment and create an abusive working environment present issues of fact. See O'Shea v. Yellow Tech. Serv., Inc., 185 F.3d 1093, 1097-98 (10th Cir.1999). "[The severity and pervasiveness evaluation is particularly unsuited for summary judgment because it is 'quintessentially a question of fact."" Id. at 1098 (quoting Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir.1994)).

116 The first area of inquiry, relating to the "because of gender" element of a claim, does not necessarily require evidence that the harassing conduct was "motivated by sexual desire to support an inference of discrimination on the basis of sex." Oncale, 523 U.S. at 80, 118 S.Ct. at 1002. A victim might also offer evidence that the harasser is motivated by a general hostility toward persons of the harasser's own gender in the workplace, or offer comparative evidence about how the harasser treats members of both sexes in a mixed-sex workplace. Id. at 80-81, 118 S.Ct. at 1002. "(Elven if some of the alleged conduct was not 'explicitly sexual in nature, ... if it reasonably could be inferred that the conduct was related to gender or arose out of a context in which admittedly sex and gender-related conduct occurred, then it is for the fact finder to decide whether such an inference should be drawn." O'Shea, 185 F.3d at 1097 (quoting Smith v. St. Louis Univ., 109 F.3d 1261, 1265 (1997).) Stated another way, "[alny harassment of an employee 'that would not occur but for the sex of the employee ... may, if sufficiently patterned or pervasive, comprise an illegal condition of employment under Title VII." Gross v. Burggraf Const. Co., 53 F.3d 1531, 1537 (10th Cir.1995) (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.1987)) (emphasis added).

T17 As to the second area of inquiry-the severity and pervasiveness element-a plaintiff must show that "the environment was both objectively and subjectively hostile" Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (1998). The inquiry would necessarily include an evaluation of the nature of the work environment itself, as contemplated by Oncale However, a plaintiff need not demonstrate psychological harm, nor must he show his work suffered as a result of the harassment. Id. Again, we note that this area of inquiry has been described as being particularly unsuited for treatment by summary judgment. O'Shea 185 F.3d at 1098.

118 The Oklahoma Supreme Court has not addressed the issue of same-sex sexual harassment, nor has it addressed in factual terms what it would consider to be acceptable parameters of workplace behavior in the context of a Title VII claim as a matter of law. The court has, however, referred to the language of Meritor, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49, as defining what constitutes sexual harassment based on hostile work environment-ie, "when sexual conduct has 'the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment'" See Brown v. Ford, 1995 OK 101 n. 27, 905 P.2d 223, 228. In addition, Justice Opala recently suggested that some members of the Court "must surely have had apprehension of embracing much of what is now in the body of federal hostile-work-environment jurisprudence," based on his observation that the federal "decisional law appears destined to reach a collision course" with permissible restrictions on freedom of speech. Clinton v. State ex rel. Logan County Election Bd., 2001 OK 52, ¶ 9, 29 P.3d 543, 549 (Opala, J., concurring in result).

T19 Though not in a same-sex context, the Tenth Cireuit Court of Appeals has addressed hostile environment sexual harassment in a number of cases. The court has recognized that evidence a plaintiff has been repeatedly subjected to verbal abuse and physical threats, which would not have occurred but for the plaintiff's gender, is sufficient to establish a Title VII claim. See, e.g., Winsor v. Hinckley Dodge, Inc., 79 F.3d 996 (10th Cir.1996) (evidence that supervisor continuously subjected woman to sexual epithets and offensive, explicit references to genitals and sexual conduct, but that supervisor did not subject male employees to similar treatment even though he also was rude to males, was sufficient to establish hostile environment sexual harassment); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1539 (10th Cir.1995) ("[Elvidence [of being] subjected to a steady stream of vulgar and offensive epithets because of [one's] gender" is sufficient to establish a hostile environment claim, though admissible evidence of such was not presented in case); see also O'Shea v. Yellow Tech. Serv., Inc., 185 F.3d 1093 (10th Cir.1999) (court reversed summary judgment for defendant because fact issues existed from which a jury could find plaintiff had been harassed because of her gender, resulting in an abusive working environment).

¶20 The federal district court for the Western District of Oklahoma, when presented with a same-sex harassment case, found the evidence sufficient to overcome a summary judgment motion in Wehrle v. Office Depot, Inc., 954 F.Supp. 234 (W.D.Okla.1996). There, although the allegation was made that the male supervisor allegedly perpetrating the harassment was homosexual, the conduct involved comments of a sexual nature and physical touching of male employees, which the court found sufficient to raise a fact issue as to whether the supervisor's conduct was directed at those employees only because they were male.

¶21 Similarly, the Seventh Cireuit Court of Appeals found evidence sufficient to overcome summary judgment in Shepherd v. Slater Steels Corp., 168 F.3d 998 (Tth Cir.1999). The court was careful, however, to note the distinction between "nothing other than vulgar provocations" and harassment that "leaves room for the inference that the sexual overlay was not incidental-that the harasser was genuinely soliciting sex from the plaintiff or was otherwise directing harassment at the plaintiff because of the plaintiff's sex." Id. at 1010-11. In the former situation, if mere non-discriminatory vulgar prov-ccations are "plain on the record," then the issue may be appropriate for summary judgment. Id. If the latter situation is presented, however, "then the task of deciding whether the harassment amounts to sex discrimination will fall to the finder of fact." Id. at 1011.

122 Other federal courts of appeal dealing with the matter have reached varied conclusions, all of which depend entirely on the particular facts of each case. In Lack v. Wal-Mart Stores, Inc., 240 F.3d 255 (4th Cir.2001), for example, the Fourth Cireuit Court of Appeals refused to affirm a jury's verdict in favor of a male employee who claimed harassment by another heterosexual male, when the only evidence of alleged harassment were isolated comments that even the plaintiff acknowledged could be characterized as lewd humor, and similar complaints lodged by female employees concerning the conduct. The court noted that the fact female employees had complained, while not absolutely precluding the plaintiff's claim, nonetheless "undereut" his claim "to a substantial extent." Id. at 262. The- court held that the evidence "in its totality" compelled the conclusion that the plaintiff's supervisor "was just an indiscriminately vulgar and offensive supervisor, obnoxious to men and women alike." Id.

¶23 In Quick v. Donaldson Co., Inc., 90 F.3d 1372 (8th Cir.1996), on the other hand, the Eighth Circuit Court of Appeals reversed a summary judgment that had been entered against a male heterosexual plaintiff who had frequently been taunted by male co-workers about his masculinity and physically grabbed and jabbed in the genital area. In a pre-Oncale opinion recognizing same-sex harassment as actionable, the court held, "Evidence that members of one sex were the primary targets of the harassment is sufficient to show that the conduct was gender based for purposes of summary judgment." Id. at 1378. The court of appeals rejected the district court's imposition of a requirement that a plaintiff must show evidence of an anti-male or predominantly female work environment and that the challenged conduct was of a sexual nature or involved sexual favors or comments. "A worker 'need not be propositioned, touched offensively, or harassed by sexual innuendo' in order to have been sexually harassed," the court stated, finding that and hostility may occur without explicit sexual advances or acts of an explicitly sexual nature," and "physical aggression, violence, or verbal abuse may amount to sexual harassment." Id. at 1378-79 (quoting Burns v. McGregor Elec. Ind., 989 F.2d 959 (8th Cir.1993)); see also Schmedding v. Tnemec Co., 187 F.3d 862 (8th Cir.1999) (allegations of harassment, which included taunts intended to debase the plaintiff's masculinity and teasing about his "perceived sexual preference," were sufficient to state Title VII discrimination claim).

¶ 24 Applying the foregoing to the case at bar, we conclude that the evidence, viewed in a light most favorable to Plaintiffs, was sufficient to survive Mid-America's summary judgment motion on the issue of gender discrimination, and the trial court erred in holding otherwise. Plaintiffs testified they were subjected to Hutson's verbally abusive and sexually derisive comments on a daily and continual basis. The comments appearing in the record clearly were intended to attack Plaintiffs' masculinity, question their virility, and generally make them feel intimidated and uncomfortable. There also is eviderice suggesting that Hutson only treated other male employees in this manner and did not act in the same way toward females. Although there is conflicting testimony as to how frequently and intensely Hutson's conduct occurred, we are constrained to review the evidence only.in a light most favorable to Plaintiffs, and we believe the evidence is such that a reasonable juror might conclude that, but for the fact that Plaintiffs were men, they would not have been taunted, teased, and abused.

125 We reject Mid-America's contention that, because the evidence showed Hutson exhibited harassing behavior to men and women alike-Le., that he was an "equal opportunity harasser"-Plaintiffs® claims should fail as a matter of law. In the first place, as noted above the evidence submitted by the parties on this issue was conflicting, and there was evidence in the record which would support an inference that Hutson was verbally and physically abusive only to the men but not the women in the workplace. Further, even if Hutson did harass both sexes equally, such conduct is not necessarily fatal to Plaintiffs' case as long they can fulfill the requirement that harassment would not have occurred at all but for the fact that they were male. See (Gross, 53 F.3d at 1537. And, specifically in regard to Mid-America's argument on this point, see Steiner v. Showboat Operating Co., 25 F.3d 1459, 1468-64 (9th Cir.1994), where the Court held that an alleged harasser's abusive behavior to members of both sexes did not preclude a Title VII claim where the evidence demonstrated that, while his abuse of male employees "in no way related to their gender, his abuse of female employees ... centered on the fact that they were females."

Title VII-Retaliatory Discharge

126 The trial court found that, although the evidence demonstrated material facts in dispute as to Plaintiffs' retaliatory discharge claim, the Oklahoma Supreme Court in Collier v. Insignia Financial Group, 1999 OK 49, 981 P.2d 321, had "implicitly" held Title VII did not provide a remedy for retaliatory discharge in Oklahoma. It therefore entered judgment against Plaintiffs on that aspect of their Title VII claim. We disagree with the trial court on its legal conclusion as to Collier's holding.

127 As the trial court itself recognized in its summary judgment order, the Supreme Court in Collier explicitly addressed only the adequacy of state law statutory remedies for sexual harassment. The Court made no specific holding as to remedies under federal law, a fact which was pointed out at the time by the Collier dissent, id. at ¶¶ 2, 6, 981 P.2d at 327-28 (Kauger, J., dissenting), and more recently by the majority in Clinton v. State ex rel. Logan County Election Board, 2001 OK 52, ¶ 7, 29 P.3d 543, 545-46.

128 Further, Title VII clearly prohibits discharge of an employee because the employee "has opposed any practice made an unlawful employment practice" by Title VII, and contemplates a private right of action for retaliatory discharge which is separate from a claim for gender discrimination. 42 U.S.C. § 2000c-8(a); see Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1263-64 (10th Cir.1998); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1313-14 (7th Cir.1989). Federal courts do not have exclusive jurisdiction to enforce Title VII claims, Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990), and similar, analogous claims have been enforced by Oklahoma courts, Willbourn v. City of Tulsa, 1986 OK 44, ¶ 6, 721 P.2d 803, 805.

129 We thus conclude that retaliatory discharge is available as a ground of action in a Title VII claim in Oklahoma, and it may be brought and enforced in Oklahoma state courts. To the extent the trial court held otherwise on this issue, its decision is reversed. We do not address, however, the propriety of the trial court's determination that Plaintiffs could continue to pursue their public policy wrongful termination theory pursuant to Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24, as that issue is not before us for review.

130 Because the trial court's judgment as to the Title VII claim was based on its determination that the undisputed facts showed a lack of gender discrimination and that there was no retaliatory discharge claim available in Oklahoma, we also do not address the other assertions of Mid-America's motion for summary judgment, relating to whether Hutson was a supervisory employee, and whether the company's response to Plaintiffs' complaints was sufficient to relieve it from liability as a matter of law. The trial court's judgment was based on its finding that Plaintiffs failed to establish they had been subjected to "gender-based" discrimination; hence, we do not address the other contentions of Mid-America's motion other than to note our review of the record indicates facts were in dispute on the other issues, as well.

Breach of Implied Contract of Employment

€81 Plaintiffs presented evidence that Mid-America failed to follow the progressive discipline policy, as set out in the company's employee handbook, prior to terminating them. Specifically, they claim that the policy manual provided that a certain number of written "warnings" would be given to an employee prior to termination due to absence or tardiness, and Plaintiffs did not receive the required number of warnings. Plaintiffs contend the policy manual constituted an implied contract between Mid-America and them, and that Mid-America's failure to follow the technical aspects of its progressive discipline policy in terminating them constituted a breach of implied contract.

132 It is undisputed, however, that both Plaintiffs read and were aware of the terms of Mid-America's employee handbook. The handbook states on its initial pages that it was developed to describe expectations of employees, to "outline Company policies, programs and benefits," and as a "guide." The handbook also contains the following language:

- Mid-America Door Company is an at-will, non-union employer and reserves the right to terminate the employment of any employee at any time subject to state laws. Each employee must understand that the policies and benefits described in this handbook are not conditions of employment and do not and are not intended to create a contract between Mid-America Door Company and its employees or any specific employee. The policies and procedures do not give rise to vested or implied contractual rights nor create any property rights at any time during employment with the Company. All policies and procedures are subject to change without notice and may be altered or varied by management to address particular situations.
(Located in the "Forward" portion of the handbook, p. 6.)
- Either the employee or Mid-America Door Company may end the employment relationship at will at any time during or after the introductory period, with or without cause or advance notice.
(Located in the "Introductory Period" seetion of handbook, p. 11)
-_ Employment with Mid-America Door Company is based on mutual consent. Both the employee and the Company have the right to terminate employment at will, with or without cause, at any time.
(Located in the "Employment Termination" section of handbook, p. 55.)

Further, at the time of their employment, Plaintiffs each signed an "Acknowledgment by Employee of Receipt of Policies" which states:

I have entered into my employment relationship with Mid-America Door voluntarily and acknowledge that there is no specified length of employment. Accordingly, either I or Mid-America Door Company can terminate the relationship at will, with or without cause, at any time. Since the information, policies, and benefits described here are necessarily subject to change, I acknowledge that revisions to the handbook may occur, except for [the] policy of employment-at-will.
Furthermore, I acknowledge that this handbook is neither a contract of employment nor a legal document.

The general rule in Oklahoma is that an employment contract of indefinite duration is terminable at will, without cause, by either party, without incurring liability for breach of contract. Burk v. K-Mart Corp., 1989 OK 22, ¶ 5, 770 P.2d 24, 26. "Such indefinite employment contracts are deemed terminable-at-will. The classic statement of the at-will rule was that an employer may discharge an employee for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.". Id.

¶ 33 The Oklahoma Supreme Court has recognized that implied contractual provisions may restrict an employer's freedom to discharge an employee at will, and that such restrictions may arise from employee manuals, oral assurances, and the like. See Hinson v. Cameron, 1987 OK 49, 742 P.2d 549; see also Johnson v. Nasca, 1990 OK CIV APP 87, 802 P.2d 1294. At the same time, however, the Court has recognized that an employer may disclaim or deny any intent to make the provisions of a personnel manual a binding part of the employment relationship, as long as the disclaimer is clear and the company has not engaged in conduct negating the disclaimer's effect. Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶ 24, 952 P.2d 492, 502.

¶34 We believe the disclaimer in the Mid-America policy manual governs the outcome in the case at bar. Though Plaintiffs contend Mid-America's conduct negated these provisions, they point only to testimony by Mid-America supervisors stating it was the supervisors' understanding that the manual's procedures should be followed but admitting that the manner of carrying them out in individual cases varied. The handbook does not state the procedures were binding and would be followed in all cases, nor was there evidence that Plaintiffs were orally assured that such was the case. We find the evidence, even when viewed in a light most favorable to Plaintiffs, insufficient to demonstrate that a factual issue existed as to whether Mid-America's conduct negated the handbook's disclaimer and limited the company's right to terminate Plaintiffs without notice. See Bowen v. Income Producing Mgmt. of Okla., Inc., 202 F.3d 1282 (10th Cir.2000) (applying Oklahoma law); Avey v. Hillcrest Med. Cir., 1991 OK CIV APP 48, 815 P.2d 1215.

1 35 The disclaimer language of the Mid-America handbook is clear and unambiguous that the manual was not intended to change the parties' status from terminable-at-will (subject, obviously, to the lawfulness of the termination otherwise). While Plaintiffs undoubtedly will use the handbook and its terms as evidence to support their claim that their termination on grounds of excessive absentecism was merely a pretext for alleged retaliatory discharge, we reject their theory that the handbook's terms or Mid-America's conduct imposed contractual restrictions on Mid-America's ability to terminate them without notice or cause. The trial court's entry of summary judgment on this issue therefore was correct and is affirmed.

Assault and Battery

$836 James Miner alleged a claim of assault and battery against Mid-America under the doctrine of respondeat superior, claiming that Hutson, while at work, grabbed Miner by the shirt and chest hair, pulled him into Hutson's face, and threatened to beat him. Miner testified the incident occurred after Hutson complained about having to perform a work chore and Miner suggested they should go ahead and get the work done. Hutson, on the other hand, testified he recalled physically picking Miner up, but that he had done so after he had asked Miner to move out of his way, and Miner "told me to move him"-i.e., that Miner had invited him to pick him up.

T37 The trial court, relying on Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, 867 P.2d 1241, held Hutson's conduct was not in the seope of his employment as a matter of law. The court found that "[uln-like the employee in Rodebushk [a nursing home aide], Mr. Hutson's duties did not include physical contact or confrontation with other employees," and Hutson's "decision to grab or push Mr. Miner cannot be considered to be fairly and naturally incident to" Mid-America's business. We agree that the undisputed facts do not support Plaintiff Miner's assault and battery claim against Mid-America for Hutson's alleged attack on Miner.

188 As noted by the trial court, Rodebush sets forth guidance as to an employer's liability under the doctrine of re-spondeat superior for the intentional torts of an employee. Although, generally, an employer may be held vicariously liable for the actions of an employee acting in the seope of his employment, it also is the general rule that "it is not within the scope of an employee's employment to commit an assault upon a third person." Id. at ¶ 12, 867 P.2d at 1245. However, the latter rule will not apply if the assault was committed while the employee was engaged in the employer's business, and was committed " 'with a view to further the [employer's] interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the [employer's] business'" Id. (quoting Russell-Locke Super. Serv., Inc., 1935 OK 90, 170 Okla. 377, 40 P.2d 1090).

139 As applied to this case, even if we presume that Miner's version of the facts is true, we cannot find that a reasonable juror could interpret Hutson's conduct as "furthering Mid-America's interest" when his assault on his fellow employee allegedly was prompted by his resistance to a co-employee's encouragement to "get to work." We therefore agree that the evidence does not support Miner's claim against Mid-America for Hut-son's intentional tort in these cireumstances.

Intentional Infliction of Emotional Distress

140 Finally, in support of their intentional infliction of emotional distress claim, Plaintiffs alleged Mid-America's knowledge of and failure to remedy the "hostile environment, assault and battery, and retaliatory discharge" constituted "extreme and outrageous conduct" which caused "severe emotional distress" to Plaintiffs. Mid-America's summary judgment motion was based on its contention that the evidence was insufficient to support this theory as a matter of law.

T41 Oklahoma recognizes as an independent tort the intentional infliction of emotional distress, also known as the tort of oulrage. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 45, 958 P.2d 128, 149. Recovery under the theory is governed by very narrow standards, however, and it is the trial court's responsibility in the first instance to determine whether a defendant's conduct may reasonably be regarded as "sufficiently extreme and outrageous" to meet the standards. Id. To successfully pursue an action on this ground, a plaintiff must show the defendant engaged in conduct that was not only unreasonable but also was " 'beyond all possible bounds of decenecy' in the setting in which it occurred" and was such that it can be "'regarded as utterly intolerable in a civilized community.'" Id. (quoting Restatement (Second) of Torts § 46(1) and emt. d).

$42 In recent years, Oklahoma courts have examined a variety of conduct claimed to be outrageous. To borrow a phrase from the Court of Civil Appeals' recent decision in Gabler v. Holder & Smith, Inc., 2000 OK CIV APP 107, ¶ 64, 11 P.3d 1269, 1280, however, "olur, appellate courts have consistently found employment related facts similar to those here do not meet the [Restatement's] § 46 criteria." Id. Examples of conduct that was not sufficiently outrageous to meet the standard include: Eddy v. Brown, 1986 OK 3, 715 P.2d 74, involving a supervisor and foreman ridiculing the plaintiff in the workplace; Anderson v. Oklahoma Temporary Services, Inc., 1996 OK CIV APP 90, 925 P.2d 574, involving six events over a two-year period that included a supervisor making lewd remarks about the plaintiff and embarrassing her by discussing her faults with coworkers; and Mirzaie v. Smith Cogeneration, Inc., 1998 OK CIV APP 123, 962 P.2d 678, involving conduct that included an employer calling the plaintiff in the middle of the night and browbeating him for hours, requiring him to do unnecessary work, and making derogatory sexual comments about the plaintiff's fiancee. In all these cases, the reviewing court determined the conduct was not sufficiently outrageous to hold the defendants liable under the tort.

143 The trial court in the case at bar found in its judgment that the undisputed facts showed Plaintiffs started complaining about Hutson's conduct shortly after they were initially employed (Miner in September 1999; Grudowski in December 1999), and that Mid-America "remedied the conflict ... by reassigning Hutson to another shift on February 8, 2000." The court suggested that Mid-America's action as such was timely and held the facts did not demonstrate the kind of conduct necessary to support an intentional infliction of emotional distress claim as a matter of law. Though we do not agree with the trial court's determination that the facts are undisputed on the issue of how reasonable and timely Mid-America's response was, we nonetheless agree that the company's conduct, even if untimely and unreasonable, was not such conduct as could reasonably be found to be "beyond all possible bounds of decency in the setting in which it occurred" or "utterly intolerable in a civilized community." We therefore affirm the entry of summary judgment against Plaintiffs on this theory, as well.

Conclusion

{44 The trial court's judgment against Plaintiffs on their claims of sexual harassment and retaliatory discharge under Title VII of the Civil Rights Act is reversed. The judgment in favor of Mid-America on Plaintiffs' claims of breach of implied contract of employment, assault and battery, and intentional infliction of emotional distress is affirmed. This cause is remanded for further proceedings consistent with the view expressed herein.

{45 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

STUBBLEFIELD, P.J., and RAPP, J., concur.

      . Plaintiffs testified Hutson called them names such as "pussy," "little dick," "little nuts," "dickhead," "bastard," "asshole," "cocksucker," and "motherfucker;" that Hutson said he could show them "what a real man was like" and claimed he (Hutson) had been having sex with Plaintiffs' wives; that Hutson asked Miner if he was afraid of Hutson, and told him he was a "better man" than Miner; that Hutson told Miner and Grudowski that their respective children were not theirs, but were Hutson's; told Grudowski to "suck his dick"; and physically threatened each man, claiming he could "whip your a ass.

      . See Marshall v. OK Rental & Leasing, 1997 OK 34 n. 3, 939 P.2d 1116, 1122 (disapproved of on other grounds by Collier v. Insignia Fin. Group, 1999 OK 49, 981 P.2d 321), noting the Anti-Discrimination Act was intended to implement the provisions of Title VIH in this state.

      . In order to bring this appeal, Plaintiffs dismissed without prejudice the state-law wrongful termination claim based on retaliatory discharge. The Supreme Court allowed the appeal to proceed on that basis.

      . A possible exception to this statement might be presented in a situation-not present in the case at bar-in which a plaintiff claims that he or she was harassed because of his or her sexual orientation. Several courts have held discrimination due to sexual orientation is not within the purview of Title VII's gender-discrimination prohibition and have denied claims on that ground as a matter law. See e.g., Rene v. MGM Grand Hotel, Inc., 243 F.3d 1206, reh. en banc granted, 255 F.3d 1069 (9th Cir.2001); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir.1999).

      . Collier v. Insignia Fin. Group, 1999 OK 49, 981 P.2d 321, answered a certified question from a federal district court about the availability of a state-law public policy tort claim for retaliatory constructive discharge if state and federal statutory remedies were available. The Court, in the portion of its opinion addressed to the availability of statutory remedies, addressed only the adequacy of remedies under Oklahoma's Anti-Discrimination Act, but did not discuss the federal Civil Rights Act.

      . We note, however, that the trial court's judgment was entered before the decision of the Oklahoma Supreme Court in Clinton v. State ex rel. Logan County Election Board, 2001 OK 52, 29 P.3d 543, where the court held a state-law claim for wrongful discharge based on breach of public policy is not cognizable when there is an adequate federal statutory remedy available.

      . In Rodebush v. Okla. Nursing Homes, Ltd., 1993 OK 160, 867 P.2d 1241, the plaintiff was a nursing home resident who suffered from Alzheimer's disease, which caused him to be occasionally combative. The plaintiff was injured when a male nurse's aid, in response to the plaintiff's combativeness while the aide was bathing him, delivered several blows to his face. The plaintiff sued the home based on the doctrine of responde-at superior and successfully held it liable for the aide's intentional battery.

      . We note our holding as to Miner's assault and battery claim is limited to determining that Hutson was not acting within the scope of his employment for purposes of imposing vicarious liability on Mid-America under the doctrine of respondeat superior. The parties do not raise, and our holding does not consider, the company's potential lability under worker's compensation law.


author: MITCHELL, J.:

text:
    2003 OK CIV APP 33
    Angela BRANNON, Plaintiff/Appellant, v. Joe MUNN, an individual d/b/a Munn's Auto Sales, Ford Motor Credit Company, a foreign corporation, USAA Casualty Insurance Company, a foreign corporation, Gordon's Auto Salvage, Inc. d/b/a I-35 Insurance Pool, Defendants/Appellees.
    No. 96,524.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Nov. 8, 2002.
    Rehearing Denied Dec. 20, 2002.
    Certiorari Denied March 3, 2003.

      J. Matthew DeVilliers, Oklahoma City, for Plaintiff/Appellant.
    Ronald D. Fulkerson, Shawn D. Fulkerson, Fulkerson & Fulkerson, Oklahoma City, for Defendant/Appellee, Ford Motor Company, and Gordon's Auto Salvage, Inc.
    Bruce A. Robertson, Wilson, Cain & Ac-quaviva, Oklahoma City, for Defendant/Ap-pellee, USAA Casualty Insurance Co.
   MITCHELL, J.:

T1 Angela Brannon, Plaintiff/Appellant or "Brannon", appeals a judgment entered on a jury verdict as well as the order denying her motion for new trial against Defendants/Appellees: Joe Munn, d/b/a Munn's Auto Sales or "Munn"; Ford Motor Credit Company or "Ford"; USAA Casualty Insurance Company or "USAA"; and, Gordon's Auto Salvage, Inc. d/b/a 1-85 Insurance Pool or "Gordon's Auto Salvage. Brannon brought an action against Munn for fraud, violation of the Consumer Protection Act, the "Act", 15 0.8.1991 § 751 et seq., breach of contract in connection with the purchase of a car and revocation of acceptance of the car. She sued Ford and USAA for fraud and breach of the Act. Later, in an amended petition, Brannon filed an action against Gordon's Auto Salvage for fraud and breach of the Act.

12 In September, 1999, Brannon purchased a car from Joe Munn, d/b/a Munn's Auto Sales. She alleged that Munn represented the car to have minor damage, with the right side doors repaired or replaced. Brannon later learned the car had been involved in a collision while leased from Ford and, as a result of the collision, declared a total loss. The liable party in the accident was insured by USAA. Neither Ford nor USAA obtained a title for the car reflecting that it was salvage, as required by 47 O.S. Supp.1998 § 1111(C) (since amended with changes not material here). Ford then sold the car to Gordon's Auto Salvage who in turn sold it to Munn, who repaired it and offered the car for sale with its original title. Bran-non filed this action.

T3 Several cross-claims were filed between the various defendants. On the day of trial, the trial court, sua sponte, bifurcated all cross-claims and ordered the matter to proceed on Brannon's claims only. The trial court sustained demurrers to the evidence for Ford, USAA and Gordon's Auto Salvage on Brannon's claim under the Consumer Protection Act. The jury found against Brannon on her other claims and delivered a verdict for Ford, USAA, Gordon's Auto Salvage and Munn. Judgment was entered thereon, Bran-non's motion for new trial was overruled and prevailing-party attorney fees were awarded to Munn based on 12 0.8.1991 § 986.

14 This court will not disturb a jury's verdict, or the judgment based thereon, where there is any competent evidence reasonably tending to support the verdict. Florafax Int'l, Inc. v. GTE Mkt. Resources, Inc., 1997 OK 7, 933 P.2d 232, 287. Motions for new trial are addressed to the sound discretion of the trial court. This court will not reverse the denial of a motion for new trial in the absence of a showing of an abuse of that discretion. Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2002 OK 31, 46 P.3d 698, 701.

$5 Brannon first takes issue with the ruling sustaining demurrers for Ford, USAA and Gordon's Auto Salvage on the Consumer Protection Act claims. The basis for this ruling was a "lack of privity" between Brannon and those defendants. This is a legal issue which requires a de novo review. Brannon's argument that privity is not required is well-taken. Conatzer v. American Mercury Insurance Co., Inc., 2000 OK CIV APP 141, 15 P.3d 1252, has considered this issue. There, the insurer of the vehicle paid insurance proceeds to the insured and took possession of the vehicle. The insurer then caused the damaged vehicle to be placed into the stream of commerce for sale, without obtaining a salvage certificate of title. The ultimate purchaser sued the insurance company and the auto broker for "title laundering". The case was dismissed below. On appeal, the Court of Civil Appeals found insurance company's claim of no privity to be inconsequential because the "claims of Plaintiffs are not based upon contract or any legal relationship." Id. at 1255. The Court allowed the case to proceed saying:

. there is clear authority that acts nearly identical to those alleged to have been committed by AMI [insurance company] and Prestige [auto broker] do provide a basis for a fraud-based consumer protection claim. In O'Brien v. B.L.C. Insurance Co., 768 S.W.2d 64 (Mo.1989), the insurance company settled a claim with its insured as a total loss. The insurer then sold the vehicle to a salvage company but did not send the certificate to the Division of Motor Vehicles with the notation that it was a salvage vehicle, nor did it obtain a certificate in its own name prior to marketing the vehicle. Id. at 66. In that case, as herein, the vehicle was subsequently sold to a consumer, who discovered the true status of the vehicle and filed suit, based upon negligence and fraud, against the insurer and the purchaser from the insurer who rebuilt the vehicle. Id. at 66-67. The appellate court upheld a damages award against the defendants for compensatory and punitive damages.

Id. (emphasis added).

T6 The Consumer Protection Act provides a private right of action. See, 15 O.S. Supp.1999 § 761.1(A). Four elements must be proved in such an action: (1) the defendant engaged in an unlawful practice (which is defined at 15 O.S. Supp.1996 § 753); (2) that the practice occurred in the course of defendant's business; (8) the plaintiff, as a consumer, suffered an injury in fact; and (4) the challenged practice caused the plaintiff's injury. The Act is remedial in nature and is to be liberally construed to effectuate its underlying purpose. See, Patterson v. Beall, 2000 OK 92, 19 P.3d 839, 846.

T7 Brannon's claim alleges all required elements-that Defendants, acting in unison and in the course of their respective businesses, violated the statutory mandate to show the car as "salvage" on its title, and that they did so to perpetuate an unfair or deceptive trade practice upon her, the ultimate consumer. She also claims to have sustained damages as a result of Defendants' deceptive trade practices Evidence was presented tending to establish these elements. Whether "privity" is needed for Brannon's claim to proceed is a question of law which we have answered in the negative. The trial court erred in sustaining the demurrers.

T8 Brannon's next alleged error is that an election of remedies was foreed upon her, i.e. to choose whether to proceed on her claim of revocation of acceptance against Munn, or to proceed with the other claims of fraud and breach of the Consumer Protection Act against Munn and the other defendants. Brannon does not contend she was denied the opportunity to put on evidence supporting the revocation claim. In fact, her casein-chief at trial included evidence satisfying the elements of the revocation claim. It was the trial court's refusal to instruct the jury on this theory that is problematic. Brannon offered requested jury instructions on revocation of acceptance but the judge refused to instruct on that issue. She made a record objecting to the judge's decision on the instructions preserving the error for review. In Howell v. James, 1991 OK 47, 818 P.2d 444, 447, the Supreme Court examined the doctrine of election of remedies and found:

"A litigant may plead inconsistent defenses, and rely on these defenses throughout the trial. While inconsistent judgments or double recovery may not be permissible, the party is not prevented from fully litigating the inconsistent theories or defenses at trial."

In her claim for revocation of acceptance, Brannon contends when she discovered the car's history she returned the vehicle to Munn on the day of purchase and told him she revoked acceptance of the car. She also brought an action pursuant to fraud and violation of the Consumer Protection Act. She may proceed with both claims at trial. It was reversible error for the trial court to refuse to instruct the jury on the revocation claim.

Y9 Brannon next alleges it was error for the trial court to, sua sponte, bifurcate for separate trial the cross-claims of Defendants. Brannon contends this was in violation of the pretrial conference order. Generally, parties rely on pretrial conferences to inform them precisely what is in controversy and what issues are to be tried. Dailey v. Barnhart, 1988 OK CIV APP 17, 768 P.2d 907, 909. Balancing the requirement that a pretrial order be followed is the trial court's discretion to order separate trials which will be disturbed only for clear abuse of discretion. Faulkenberry v. Kansas City Southern Ry. Co., 1983 OK 26, 661 P.2d 510, cert. den. 464 U.S. 850, 104 S.Ct. 159, 78 L.Ed.2d 146. Here, in the interest of judicial economy, the trial court ordered the trial to proceed on Brannon's claims only. If Brannon was unsuccessful in her claims, Defendants' eross-claims need not proceed. If she was successful, however, the cross-claims could then (or later) be tried. This is the type of case contemplated by 12 O.8.1991 § 2018(D) for which bifurcation is allowed. Brannon has not met her appellate burden of showing clear abuse of the trial court's discretion to bifurcate these claims.

T10 Similarly, on the day of trial, Brannon moved for an order compelling Ford to respond to certain production requests and interrogatories. Brannon sought records which would show a pattern of improper practices regarding titles of salvage vehicles. The trial court sustained the motion only as to an indemnity agreement between Ford and Gordon's Auto Salvage which showed Gordon's agreed to hold Ford harmless for any damages. Brannon contends it was reversible error for the trial court to fail to sustain her motion to compel for the other requested documents. The pretrial conference order, however, entered more than two weeks before trial, shows discovery as being complete. The pretrial conference order "govern{s] the trial of the case unless departure therefrom is permitted by the Court to prevent manifest injustice." Tit. 12, Ch. 2, App. 1, Rules for District Courts, Rule 5(I). Brannon has not shown the necessary "manifest injustice" to entitle her to an additional departure from the pretrial conference order. Ultimately, the trial court has wide discretion to enforce its pretrial orders. Short v. Jones, 1980 OK 87, 613 P.2d 452, 457. No abuse of discretion is shown.

{11 Shortly before pretrial conference, counsel for Gordon's Auto Salvage was allowed to substitute for Ford's counsel and entered an appearance to also represent Ford. Brannon contends the trial court committed reversible error in allowing such representation. Apparently, Gordon's Auto Salvage purports to be the fully disclosed agent of USAA, and as such there does not appear to be a conflict. Regardless, there is no showing of any prejudice to Brannon and no showing of reversible error. However, counsel is cautioned to take note of Tit. 5, Ch. 1, App. 3-A, Rules of Professional Conduct, Rule 1.7 which deals with conflicts of interest.

{12 Brannon's next allegation of error is an evidentiary issue. During trial, counsel for Gordon's Auto Salvage asked Brannon about an offer of compromise. An objection to the question was overruled and the trial court required Brannon to answer. The objected-to question follows:

Q: Ms. Brannon, isn't it true before Mr. Terry [owner of Gordon's Auto Salvage] died he had offered to buy back this vehicle?
A: He didn't ask me.

She contends this was reversible error under 12 0.8.1991 $ 2408 which provides in pertinent part:

Evidence of:
1. Furnishing, offering or promising to furnish; or
2, Accepting, offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for the claim, invalidity of the claim or the amount of the claim.

The question was probably impermissible under § 2408, but in answering the question Brannon denied receiving such an offer, nor was there any other evidence tending to prove such an offer. Further, Brannon has made no showing of prejudice by the question nor do we find any in our review.

T13 Finally, Brannon contends it was error for the trial court to award attorney fees to Munn based on 12 O.S. § 986. Because we are reversing this case on other grounds, and remanding for a new trial, the award of attorney fees must be vacated.

T14 AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

HANSEN, P.J., and ADAMS, J., concur.

      . Other defendants at trial are not part of this appeal, thus only claims against USAA, Ford, Gordon's Auto Salvage and Munn will be discussed.

      . 47 O.S. Supp.1998 § 1111 provides in pertinent part:
      C. 1. If an insurance company pays a claim for a loss which is less than a total loss but the cost of repairing the vehicle for safe operation on the highway exceeds sixty percent (60%) of the fair market value of the vehicle, or if any vehicle not insured is damaged to the extent that the cost of repair for safe operation on the highway exceeds sixty percent (60%) of the fair market value of the vehicle, any holder of the certificate of title for the vehicle shall return the certificate of title to the Oklahoma Tax Commission or a motor license agent within thirty (30) days from receipt of payment for the loss.
      2. Upon receipt of the certificate, the Tax Commission or motor license agent shall issue a salvage title for the vehicle. The title for any vehicle damaged by flooding shall be stamped with the words "Flood Damaged", and for any such vehicle which was recovered from a theft, the salvage title or rebuilt title shall be stamped with the words "Recovered Theft". A licensed dealer subject to the provisions of the Automotive Dismantlers and Parts Recycler Act, Section 591.1 et seq. of this title, shall not be required to pay registration fees, excise taxes, back taxes, or penalties on a vehicle as a prerequisite to obtaining a salvage title. (emphasis added).

      . Tit, 12 O.S.1991 Sec.2018(D) provides: "SEPARATE TRIALS. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury."

      . On appeal, both Ford and Gordon's Auto Salvage are represented by the same counsel.


author: ADAMS, Presiding Judge.

text:
    2003 OK CIV APP 35
    STATE of Oklahoma, ex rel., DEPARTMENT OF HUMAN SERVICES, Child Support Enforcement, Plaintiff/Appellee, v. Gilbert Santana HERNANDEZ, Defendant/Appellant.
    No. 97,351.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    March 13, 2003.
    Dorinda K. Morris, Fairview, OK, for Plaintiff/ Appellee.
    Randolph S. Meacham, Clinton, OK, for Defendant/Appellant.
   OPINION

ADAMS, Presiding Judge.

T1 This is an appeal from a trial court order which affirmed an administrative order issued by the Office of Administrative Proceedings: Child Support (OAH) in an action filed by the Child Support Emforeement Division of the Department of Human Services (DHS) against Gilbert Hernandez, seeking to establish his paternity of a child born to Bege Flynn (Mother) in November of 1987. The OAH order only determined Hernandez was the child's father and left unresolved the issue of child support for subsequent hearing, even though DHS had requested a child support order in its application.

12 Hernandez's appeal from the OAH order was authorized, if at all, by the provisions of 56 0.8.2001 § 240.3(A)(1), which states: "Final orders of the OAH may be appealed to the district court pursuant to this section and Sections 318 through 323 of Title 75 of the Oklahoma Statutes by any party directly affected and showing aggrievement by the order." (Emphasis added). A similar limitation is found in 75 § 318(A)(1), which allows appeals from "a final agency order in an individual proceeding."

8 We have a duty to inquire into the jurisdiction of the district court in this case. Muskogee Fair Haven Manor Phase I, Inc. v. Scott, 1998 OK 26, 957 P.2d 107. In fulfilling that duty we must examine whether the OAH order in this case is a "final order" inasmuch as it did not resolve all of the issues raised in the DHS application. In response to our order directing the parties to address this issue, DHS concedes the OAH order was not a "final order." Hernandez does not argue that the OAH order was a final order. However, he suggests "[alll issues have been determined or are calculable" as a result of "Temporary Child Support Order" he says was filed by OAH offer the District Court order appealed in this case. However, he cited no authority to support any conclusion that an order purportedly filed after the District Court had already completed its review could cure a jurisdictional defect in his appeal.

14 An order that resolves less than all of the issues arising out of a controversy between the parties may not generally be treated as a final order. Mann v. State Farm Mutual Automobile Insurance Company, 1983 OK 84, 669 P.2d 768. Hernandez has not cited any authority or made any argument demonstrating any reason this general principle is inapplicable here, and we have discovered none. The OAH order appealed by Hernandez to the District Court was not a final order, and the District Court had no jurisdiction to consider Hernandez's appeal. The District Court's order is reversed, and the case is remanded with instructions to dismiss Hernandez's appeal for lack of jurisdiction.

REVERSED AND REMANDED.

JOPLIN, C.J., and BUETTNER, J., concur.


author: THORNE, Judge:

text:
    2003 UT App 75
    STATE of Utah, in the interest of L.M., a person under eighteen years of age. T.M. and J.M., Appellants, v. State of Utah, Appellee.
    No. 20020431-CA.
    Court of Appeals of Utah.
    March 20, 2003.

      G. Brent Smith and Steven C. Russell, Affordable Legal Advocates, Salt Lake City, for Appellants.
    Mark L. Shurtleff, Attorney General, Carol L. Verdoia, and John M. Peterson, Assistant Attorneys General, Salt Lake City, for Appellee.
    Martha Pierce and Janice A. Ventura, Salt Lake City, Guardians Ad Litem.
    Before Judges JACKSON, DAVIS, and THORNE.
   OPINION

THORNE, Judge:

11 The Parents of LM. (Parents) appeal from the trial court's denial of their motion for a new trial. We affirm.

BACKGROUND

2 Following the disposition of their first, direct appeal in this matter, see In re L.M., 2001 UT App 314, 37 P.3d 1188, Parents filed a motion for a new trial based on newly discovered evidence. In support of their motion, Parents submitted affidavits from Dr. Ellen Clark, a Nevada pathologist, and Kathleen Peele, an Associate Professor of Pediatrics at the University of Nevada, Reno, and an expert in the field of child sexual abuse.

3 Dr. Clark, through her affidavit, stated that she had received the following items from the Parents:

1. Cover letter, pathology protocol, autopsy diagrams, and microscopic slides (18 total, 4 GMS and 14 H & E) from the State of Utah, Department of Health, Office of the Medical Examiner.
2. Cover letter and retainer fee from Steven C. Russell [Parent's attorney] (dated "09/27/1999", but received 03/29/2000).
3. Faxed letter from Steven C. Russell, two pages (4/14/"1999").
4. Cover letter with eight glossy print 3 inch by 5 inch photographs, indicated to show "[K.M.] case", undated.

Based upon the material delivered to Dr. Clark, she concluded that K.M.'s injuries were caused by diaper rash and bacteria, and were not the result of "inflicted trauma" or "sexual abuse."

T4 Kathleen Peele, through her affidavit, stated that she had reviewed the videocolpo-seope and medical report recorded during the post-mortem examination of K.M.'s body. In her opinion, K.M.'s injuries were not consistent with non-accidental trauma or sexual abuse.

15 After reviewing this information, the juvenile court concluded that Parents had presented "no newly discovered evidence." Instead, the court found that Parents proffered only additional expert opinion that supported their version of the injuries' origin. Moreover, the proffered opinions merely interpreted substantive evidence that had been presented at the adjudication hearing. The trial court further concluded that Parents had failed to demonstrate that the additional expert testimony could not have been presented at trial. Finally, the trial court concluded that had the post-trial opinions submitted by Parents been considered at trial there was no reasonable likelihood that the result would have been different. Thus, the trial court denied the motion for a new hearing. Parents now appeal.

ANALYSIS

16 We first address certain allegations contained in Parents' brief. On appeal, Parents, through their attorney Steven Russell, assert that the trial court's conclusions were "ridiculous," that the court's chronology was "bizarre," and that in making the decision the trial court "ignored the evidence," ignored Mr. Russell, and essentially led to support its conclusion. Such assertions are not supported by the trial court record and are entirely irrelevant and inappropriate to these proceedings. See State v. Cook, 714 P.2d 296, 297 (Utah 1986). Moreover, counsel's unsupported assertions concerning the trial judge's conduct border on violating rule 8.2 of the Rules of Professional Conduct, and we would eaution counsel against such unsupported comments in the future. Finally, we remind counsel that

[dlerogatory references to others or inappropriate language of any kind has no place in an appellate brief and is of no assistance to this Court in attempting to resolve any legitimate issues presented on appeal.

Cook, 714 P.2d at 297. Accordingly, we do not consider these assertions further.

T7 Parents' substantive argument centers on the trial court's decision to deny their motion for a new trial on the issue of the custody of LL.M. Motions for a new trial in the juvenile court are submitted and considered pursuant to Utah Code Ann. § 78-32-908 (2002). The language and intent of section 78-82-908 clogely correspond to rule 59 of the Utah Rules of Civil Procedure; thus, we review motions submitted pursuant to section 78-82-908 under the same standard applied to rule 59 motions. See In re J.P., 921 P.2d 1012, 1016-17 (Utah Ct.App.1996) (citing In re S.R., 735 P.2d 53, 57-58 (Utah 1987)).

18 Under rule 59, when a party bases its motion for a new trial on newly discovered evidence, the "party must prove the evidence offered meets three requirements for a new trial to be granted." In re J.P., 921 P.2d at 1017. The evidence must first be "material," "competent," and " 'in fact newly discovered." " Id. (citation omitted). Second, the moving party must show that the evidence " 'could not, by due diligence, have been discovered and produced at trial." " Id. (citation omitted). Finally, even if the party is able to meet the first two elements, they must then show that the evidence is not "cumulative or incidental," and that it is " 'of sufficient substance that with it there is a reasonable likelihood that there would have been a different result! " Id. (citation omitted). Moreover, while not relevant to the instant case, we have determined that the moving party must show that the new evidence " 'relate[(s] to facts [that] were "in existence at the time of trial." ' " Id. (citations omitted). So long as the trial court considers these factors, its decision is granted a wide range of discretion. See id. at 1016.

19 Here, following the disposition of Parents' first appeal, Parents submitted to the trial court a motion for a new trial ace-companied by affidavits from two expert witnesses. These experts, after reviewing portions of the available evidence and reports, concluded that K.M.'s injuries were not indicative of inflicted trauma. Furthermore, in the opinion of Dr. Clark, K.M's injuries were most likely caused by diaper rash. Assuming, without deciding, that these opinions satisfy the first element necessary to qualify for a new trial" we address whether the trial court abused its discretion in denying Parents' motion.

§10 "IH is essential that the parties seeking a new trial on the basis of newly discovered evidence meet the due diligence component of the rule, '[nlo matter how material or beneficial the [evidence would be} on a new trial" " ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 253 (Utah Ct.App.1997) (second and third alterations in original) (quoting Shields v. Ekman, 67 Utah 474, 248 P. 122, 125 (1926)). Parents argue that they could not have discovered these experts or accessed their opinions, because they were unaware of the existence of either Dr. Clark or Ms. Peele until Dr. Leis approached Parents at the conclusion of the trial. At that time, Dr. Leis suggested for the first time that Parents submit the evidence .to Dr. Clark for further review. Parents' argument misunderstands the meaning of due diligence.

111 For the due diligence requirement to be satisfied, Parents must show that they thoroughly investigated every available avenue to support their claim. See id. Waiting for Dr. Leis to approach them concerning other possible interpretations of the evidence, rather than approaching Dr. Leis, or any other possible expert, and requesting such a recommendation before the- trial, does not satisfy the due diligence requirement. Moreover, when determining compliance with the due diligence requirement, we are not interested in the date the evidence was discovered, or in the date the additional expert was contacted. Rather, we focus our analysis on what could have been discovered by the party prior to the trial had the party fully pursued an active investigation. See id. at 253-54; In re J.P., 921 P.2d at 1017.

112 Here, Parents offer nothing to suggest that the opinions of either Dr. Clark or Ms. Peele, or those of any similar expert, were out of reach or unavailable prior to trial. Nor do Parents suggest that obtaining reports from Dr. Clark and Ms. Peele would have been especially costly if obtained prior to trial. See ProMax, 948 P.2d at 254. Finally, we see nothing in the record that would support a conclusion that the effort that would have been required to obtain the opinions prior to the trial date would have been any greater than that required after trial. See In re Adoption of McKinstray, 628 P.2d 1286, 1287 (Utah 1981) (stating that "when it appears that the degree of activity or inquiry which led to the discovery of a witness or evidence after trial would have produced the same evidence had it been exercised prior thereto, due diligence has not been exercised"). Thus, we see no reason to conclude that the trial court acted outside its permitted range of discretion in concluding that Parents failed to satisfy the due diligence requirement of rule 59.

113 Finally, the trial court concluded that even considering the "newly discovered evidence" proffered by Parents, there was no reasonable likelihood of a different result. The trial court found that neither Dr. Clark, nor Ms. Peele, had been provided with the entirety of the evidence submitted at trial. Thus, both expert opinions were based on incomplete information. The trial court also noted that both Dr. Clark and Dr. Leis were pathologists and not experts in the area of child abuse. The trial court therefore concluded that their opinions concerning the origin of K.M's injuries were less reliable than the opinion of the State's child abuse expert, Dr. Karen Hansen of the Child Protection Team at Primary Children's Hospital Dr. Hansen had testified that K.M's injuries were consistent with inflicted trauma, an opinion Dr. Leis deferred to at trial,. The court further determined that the testimony of Ms. Carver was more credible than the opinion of Ms. Peele because Ms. Carver had reviewed all of the available evidence and her opinion was supported by Dr. Hansen. Having reviewed the record, including the affidavits submitted with Parents' motion for a new trial, we conclude that the trial court acted within its permitted range of discretion in concluding that Parents' "newly discovered evidence" would not have changed the outcome of the trial.

CONCLUSION

114 The trial court properly determined that Parents' motion for a new trial failed to satisfy the due diligence requirement of rule 59. The trial court also acted within its permitted range of discretion in determining that the "newly discovered evidence" proffered by Parents did not create a reasonable likelihood of a different trial outcome.

T 15 Accordingly, we affirm the trial court order denying Parents' motion for a new trial.

T 16 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JAMES Z. DAVIS, Judge.

      . As it is unnecessary to the issues presented, we do not discuss the incident leading to the removal of LM. from Parents' home and eventual permanent placement with her maternal grandparents. A full discussion of these facts is available at In re L.M., 2001 UT App 314, 37 P.3d 1188.

      . Parents also argue that a letter submitted by Dr. Edward Leis, the State's Deputy Chief Medical Examiner, as well as the earlier testimonies of Dr. Edward Freidlander and Dr. J. Wallace Graham should be considered. However, Dr. Leis testified at the hearing, and in the letter to the Parents he stands by his testimony from the hearing-stating, "I would still hold true to the statement from the hearing and the autopsy report that there were injuries to the genital area and that I do not know the etiology of these injuries." He does, however, assert in the letter that he "would personally favor [Dr. Clark's] opinion." We see no reason to consider the letter as "newly discovered evidence." The testimonies of both Dr. Graham and Pr. Freidlander were also before the juvenile court prior to the adjudication. Thus, neither qualifies as "newly discovered evidence" for consideration in Parents' motion for new trial.

      . Parents assert that the trial court, in its order denying their motion, "concluded that the expert testimony [was] not evidence." We disagree. The trial court stated only that the newly submitted expert opinions did not qualify as "newly discovered evidence." (Emphasis added). The trial court determined that the opinions had merely interpreted some of the evidence available at the time of trial and had arrived at conclusions that ran parallel to the opinion offered by Dr. Freidlander at trial While the question of whether a post-trial expert opinion interpreting evidence submitted during the trial constitutes "newly discovered evidence" under rule 59 has yet to be addressed in Utah, in light of the conclusions reached by other courts, it is possible that we would conclude such opinions do not constitute "newly discovered evidence" under the rule. See State v. Blasus, 445 N.W.2d 535, 543 (Minn.1989) (concluding "{glenerally[,] expert testimony does not constitute newly discovered evidence justifying a new trial"); State v. Fosnow, 2001 WI App 2, ¶ 16, 240 Wis.2d 699, 624 N.W.2d 883 (same). However, because we conclude that Parents could have, with due diligence, garnered the proffered opinions prior to trial, and because we conclude that the trial court acted within its permitted range of discretion in determining that there was no reasonable likelihood of a different result even if the opinions had been considered, we do not today address whether new or different interpretations of old evidence constitute "newly discovered evidence" satisfying the mandate of rule 59.

      . Parents' due diligence argument, in-large part, focuses on the dates on which their post-trial experts were contacted. However, our analysis focuses not on the date of actual contact. Rather, we are concerned only with whether it would have been unreasonably difficult for Parents to discover the information prior to the trial. See In re Adoption of McKinstray, 628 P.2d 1286, 1287-88 (Utah 1981). Thus, we conclude that the trial court's determination that the expert opinions were discoverable prior to trial is within its discretion. Cf. American Rural Cellular, Inc. v. Systems Comm. Corp., 939 P.2d 185, 191 (Utah Ct.App.1997) (explaining that the plaintiff "would ... be expected to diligently seek out any evidence available regarding" their claim).

      . While not clearly stated in the record, the findings also suggest that the proffered opinions were cumulative of the opinions of Dr. Graham and Dr. Freidlander. This conclusion alone would be sufficient to support the trial court's denial of Parents' motion for a new trial. See Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832, 841 (Utah 1984) (affirming the trial court's denial of a motion for a new trial based on the finding that the "newly discovered evidence" was merely cumulative of evidence introduced at trial).