author: JACKSON, Judge:

text:
    2004 UT App 162
    NOVELL, INC., a Delaware corporation, Plaintiff and Appellee, v. The CANOPY GROUP, INC., a Utah corporation, Defendant and Appellant.
    No. 20030211-CA.
    Court of Appeals of Utah.
    May 13, 2004.

      Robert L. Jeffs, Jeffs & Jeffs, Provo, and Ralph H. Palumbo, Philip S. McCune, Lynn M. Engel, and Lawrence C. Locker, Summit Law Group PLLC, Seattle, Washington, for Appellant.
    John P. Mullen, Thomas R. Karrenberg, Seott A. Call, and Jon V. Harper, Anderson & Karrenberg, Salt Lake City, for Appellee.
    Before Judges JACKSON, ORME, and THORNE, Jr.
   OPINION

JACKSON, Judge:

11 The Canopy Group, Inc. (Canopy), a Utah corporation, appeals the district court's grant of summary judgment to Novell, Inc. (Novell), a Delaware corporation, and the district court's denial of Canopy's motion for summary judgment. We affirm.

BACKGROUND

T2 This is a breach of contract action. Novell owned the source code for DR DOS, a computer operating system that was the target of anticompetitive practices by Microsoft in the early 1990s. Novell's board of directors worried that, if they brought suit against Microsoft in a private antitrust action, Microsoft would retaliate with further unfair practices that could neutralize the value of any antitrust recovery. At the same time, however, Novell's board of directors recognized that Novell's shareholders would not permit Novell to simply walk away from such a significant cause of action and potential recovery.

13 Accordingly, Novell entered into negotiations with Caldera, Inc., the predecessor in interest to Canopy, to sell DR DOS to Canopy. The main purposes of this sale were to obligate Canopy to bring suit against Microsoft, to allow Novell to share in the recovery, and at the same time to obfuscate Novell's role in the action against Microsoft. Novell insisted that its role be completely undetectable to avoid retaliation from Microsoft.

1 4 To accomplish this, Novell and Canopy executed two separate documents: the first was a contract of sale, obligating Canopy to pay $400,000 for rights to the source code; the second was a temporary license obligating Canopy to pay $600,000 in license fees and "royalties." The royalties included provisions for payment to Novell of a percentage of any recoveries from lawsuits. The negotiations between the parties were very prolonged, and the parties considered a wide variety of proposed royalty bases.

[5 Upon execution of the final documents, Canopy initiated suit against Microsoft. The dispute was settled by Microsoft's payment of an undisclosed sum of money to Canopy. Before Canopy paid Novell its percentage, Canopy deducted attorney fees, court costs, and other litigation expenses, applying No-vell's percentage against the balance. Novell initiated suit for breach of contract, claiming the two documents that constituted the contract made no allowance for the deductions Canopy made. Canopy counterclaimed for declaratory relief, asserting the existence of an oral agreement permitting deduction of attorney fees, costs, and expenses from the settlement with Microsoft before calculating Novell's share.

T6 The district court first considered a motion for partial summary judgment by Novell to dismiss Canopy's counterclaim based on a contemporaneous oral agreement regarding the calculation of Novell's royalty base. The district court determined that the written contracts together constituted an integration. It therefore granted Novell's motion. The district court then considered Novell's motion for complete summary judgment. To counter that motion, Canopy argued that the terms of the royalty base, as contained in the written agreements, were ambiguous, and that a genuine issue of material fact therefore existed. The district court determined as a matter of law, however, that the terms were not ambiguous, and that Novell was entitled to judgment. It therefore entered - summary - judgment against Canopy, and denied Canopy's motion for summary judgment. Canopy appeals.

ISSUE AND STANDARD OF REVIEW

T7 Canopy challenges the district court's grant of summary judgment to Novell, and the denial of Canopy's motion for summary judgment.

We review the district court's summary judgment ruling for correctness, granting no deference to its legal conclusions. In reviewing a summary judgment decision pursuant to Rule 56(c) of the Utah Rules of Civil Procedure, we consider whether the trial court correctly concluded that no genuine issue of material fact exists and whether it correctly applied the law.

Woodbury Amsource, Inc. v. Salt Lake County, 2003 UT 28, ¶ 4, 73 P.3d 362; see also Utah R. Civ. P. 56(c). ,

ANALYSIS

18 Canopy made two basic arguments for the existence of a genuine issue of material fact. First, it argued that the written contracts were not intended by the parties to be an integration of all their agreements. It claims that the parties entered into an oral agreement regarding the royalty base and that the parties did not intend the final writings to supercede the oral agreement. In its first summary judgment ruling, the district court determined that the contract was in fact integrated, and that no such oral agreement existed. Second, Canopy argues that, even if the contract was integrated, the contract's term defining Novell's percentage of the Microsoft recovery is ambiguous. In its second summary judgment ruling, the district court ruled the term is not ambiguous, and therefore denied the admission of extrinsic evidence to interpret the term.

I. Integration

19 Canopy argues the parties had entered into contemporaneous oral agreements not embodied in the final written contracts. For example, neither of the writings contained an explanation of Canopy's obligation to pursue an antitrust suit against Microsoft, but Novell does not dispute that that obligation is at the center of the parties' agreement. Likewise, Canopy asserts the parties agreed that it would deduct attorney fees, costs and expenses incurred in the Microsoft litigation before calculating Novell's percentage of the recovery. Canopy maintains that, because the parties did not intend the writings to supercede the contemporaneous oral agreements, the district court erred in ruling that the writings constituted the final and complete embodiment of the agreement between the parties. At the least,. Canopy argues, a genuine issue of material fact exists regarding whether the parties in fact agreed to allow the deductions from the Microsoft recovery.

€10 The parol evidence rule "operates in the absence of fraud to exelude [prior and] contemporaneous conversations, statements, or representations offered for the purpose of varying or adding to the terms of an integrated contract." Union Bank v. Swenson, 707 P.2d 663, 665 (Utah 1985) (emphasis omitted). "An agreement is integrated where the parties thereto adopt a writing or writings as the final and complete expression of the agreement." Eie v. St. Benedict's Hosp., 638 P.2d 1190, 1194 (Utah 1981) (quotations and citation omitted).

111 The parol evidence rule, as applied to integrated contracts, is a substantive rule of contract construction, rather than a rule of evidence. See 6 Arthur Linton Corbin, Corbin on Contracts § 573 at 72 (interim ed.2002). Parol evidence is not so much inadmissible to vary the terms of an integrated writing as it is irrelevant, because "the later agreement discharges the antecedent ones in so far as it contradicts or is inconsistent with the earlier ones." Id. at 82.

"[A] court must first determine whether the writing was intended by the parties to be an integration. In resolving this preliminary question of fact, parol evidence, indeed any relevant evidence, is admissible." However, to preserve the integrity of written contracts, we apply "a rebutta-ble presumption that a writing which on its face appears to be an integrated agreement is what it appears to be."

Smith v. D.A. Osguthorpe, 2002 UT App 361, ¶ 18, 58 P.3d 854 (alteration and emphasis in original) (citations omitted); see also Terry's Sales, Inc. v. Vander Veur II, 618 P.2d 29, 32 (Utah 1980) ("Where parties have various claims and obligations to each other, and have had a discussion about resolving their disputes which results in a written agreement signed by them, it is generally to be assumed that their disputes were merged into the written agreement.").

T 12 Canopy produced a great deal of evidence to establish that the written agreements do not contain all the terms to which the parties agreed, such as Canopy's obligation to sue Microsoft. It argues further that the agreements themselves purposely obfuscated Novell's entitlement to a recovery from Microsoft by dealing with Novell's entitlement in very broad, general terms.

T13 Canopy's evidence and arguments, however, do not negate Canopy's concession that it entered into written agreements that provide for the payment of royalties by Canopy to Novell. Canopy's evidence clearly shows the parties participated in prolonged negotiations to settle their disagreements regarding the deductions and Novell's overall percentage. Canopy's evidence may or may not establish the existence of a prior agreement.

114 However, Canopy has not rebutted the presumption of integration. Absent a showing to the contrary, we "assume[ ] that their disputes were merged into the written agreement." Id. at 82. In other words, regardless of whether the parties may have had preliminary agreements about a given subject during the course of negotiations, we will assume that a writing dealing with the same subject was intended by the parties to supercede any prior or contemporaneous agreements,. See id.; see also Smith, 2002 UT App 361 at ¶ 18, 58 P.3d 854. Canopy's arguments and evidence regarding the apparently laborious and convoluted nature of the parties' negotiations are therefore entirely irrelevant to rebut the presumption that the parties intended to replace their prior. agreements with a new agreement in the form of the final writings. See id. (applying the presumption of integration); 6 Arthur Linton Corbin, Corbin on Contracts § 578 at 82 (explaining that evidence of prior agreements is irrelevant to question of integration).

115 Further, a showing that the parties did not include all the terms of their agreement in the writing does not render the writing unintegrated with respect to the terms it does include, because contracts may be partially integrated:

"[Plarol evidence not inconsistent with the writing is admissible to show what the entire contract really was, by supplementing, as distinguished from contradicting, the writing. In such a case parol evidence to prove the part not reduced to writing is admissible, although it is not admissible as to the part reduced to writing."

Webb v. R.O.A. Gen., Inc., 804 P.2d 547, 551 (Utah Ct.App.1991) (emphasis in original) (quoting Stanger v. Sentinel Sec. Life Ins. Co., 669 P.2d 1201, 1205 (Utah 1983). "Therefore, in most instances, where a binding agreement exists, whether completely or partially integrated, evidence of prior or contemporaneous agreements or discussions is not admissible to contradict terms of the written agreement." Id. (emphasis added); see also State Bank of Lehi v. Woolsey, 565 P.2d 413, 418 (Utah 1977)(stating "parol evidence of contemporaneous conversations, representations or statements will not be received for the purpose of varying or adding to the terms of the written agreement").

16 Here, the parties entered into a written contract presumed to be the final expression of their agreement with respect to royalties. The terms of that writing obligate Canopy to pay Novell a percentage of its recovery from Microsoft. Indeed, that percentage is the central purpose of, and impetus for creating, the contract. Canopy argues for the existence of a contemporaneous or prior verbal agreement that would reduce the amount to which Novell is entitled. These deductions are nowhere alluded to in the contract, and would result in a payment to Novell of less than the agreed-upon percentage of the overall Microsoft recovery. Thus, the purported oral agreement allowing Canopy to reduce the Microsoft recovery by the amount of its litigation expenses would contradict the terms of the written agreements. Accordingly, the district court was correct not to give force or effect to the alleged oral agreement.

T17 Because Canopy has not presented any evidence that would establish the parties did not intend the writings to be integrated, the district court's first summary judgment ruling was correct. Thus, we affirm the district court's ruling regarding integration.

II. Ambiguity

T18 The license agreement provides for the payment of a royalty to Novell by Canopy. The agreement further provides that the royalty is to be paid on the "Royalty Base," defined in the agreement as "Gross Revenues less the book value of assets sold." "Gross Revenue" is defined as

[all! proceeds, gross receipts, and revenues of [Canopy], net of returns and allowances, relating to any sale, license, transfer, settlement, award, recovery or any other amounts acerued or earned relating to transactions occurring or causes of action arising prior to the fifth anniversary of the Effective Date, including causes of action arising prior to the Effective Date.

{19 Canopy argues that the term "proceeds" is ambiguous, because it "can mean either gross proceeds (before deduction for fees and costs) or net proceeds (after deduction for attorney| ] fees and costs)." Thus, it argues, there is a genuine issue of material fact that renders summary judgment inappropriate.

120 Courts determine whether a term is ambiguous as a matter of law. See Parduhn v. Bennett, 2002 UT 93, ¶ 5, 61 P.3d 982. "The underlying purpose in construing or interpreting a contract is to ascertain the intentions of the parties to the contract. 'In interpreting a contract, the intentions of the parties are controlling." " WebBank v. American Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 17, 54 P.3d 1139 (citations omitted).

If the language within the four corners of the contract is unambiguous, the parties' intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law. However, if the language of the contract is ambiguous such that the intentions of the parties cannot be determined by the plain language of the agreement, extrinsic evidence must be looked to in order to determine the intentions of the parties. If a contract is ambiguous, the court may consider the parties' actions and performance as evidence of the parties' true intention.
An ambiguity exists in a contract term or provision if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies.

Id. at 4 19-20 (internal quotes and citations omitted). "When ambiguity exists, the intent of the parties becomes a question of fact. [A] motion for summary judgment may not be granted if a legal conclusion is reached that an ambiguity exists in the contract and there is a factual issue as to what the parties intended." Id. at 22 (alteration in original) (internal quotes and citations omitted).

"21 To determine whether a contract term is ambiguous, a court is not limited to the document itself; rather, the court may look to all the attendant cireumstances surrounding the execution of the document:

When determining whether a contract is ambiguous, any relevant evidence must be considered.... Although the terms of an instrument may seem clear to a particular reader-including a judge-this does not rule out the possibility that the parties chose the language of the agreement to express a different meaning. A judge should therefore consider any credible evidence offered to show the parties' intention.
[Rlational interpretation requires at least a preliminary consideration of all credible evidence offered to prove the intention of the parties ... so that the court can place itself in the same situation in which the parties found themselves at the time of contracting. If after considering such evidence the court determines that the interpretations contended for are reasonably supported by the language of the contract, then extrinsic evidence is admissible to clarify the ambiguous terms.

Ward v. Intermountain Farmers Assoc., 907 P.2d 264, 268 (Utah 1995) (alteration and second omission in original) (internal quotes and citation omitted).

122 Here, the district court considered evidence presented by both sides concerning the negotiations and drafting of the final written agreement. Specifically, it considered evidence that in earlier drafts of the agreement the parties had agreed that Canopy would deduct litigation expenses from the recovery. Further, it considered evidence of Novell's intention to obfuscate its role in the Microsoft litigation by using "unclear" and general terms in the Canopy-Novell contract. It also considered Canopy's argument that there exist mutually exclusive dictionary definitions of the word "proceeds." Ultimately, the district court determined that the term "proceeds" as contained in the agreement is not ambiguous, and thus that no parol evidence may be introduced to explain the meaning of the contract term. We agree with the district court that this term is not ambiguous.

T23 Canopy has vigorously argued, below and on appeal, that Novell's attempts to disguise its role in the Microsoft litigation have resulted in the inclusion of ambiguous terms in the final written agreement. It has not, however, offered any evidence to support the claim that the parties may have ascribed a meaning to the term "proceeds" that would permit deduction of any expenses other than those already listed in the contract's definition of "Gross Revenue."

124 "[A] contract provision is not necessarily ambiguous just because one party gives that provision a different meaning than another party does. To demonstrate ambiguity, the contrary positions of the parties must each be tenable." R & R Emergies v. Mother Earth Indus., Inc., 986 P.2d 1068, 1074 (Utah 1997). In this case, Canopy has not offered any evidence that would render its position tenable.

4 25 There is no dispute that earlier drafts of the License Agreement included a deduction for litigation expenses in the definition of the term "Royalty Base." There is also no dispute that at the six-hour "marathon" closing, after several drafts of the agreement were proposed and discarded, the litigation expense deduction was removed. Canopy argues this removal was simply part of Novell's scheme to obfuscate its role in the Microsoft litigation. We fail to see how it furthers Novell's obfuscation schemes to include a provision obligating Canopy to pay a percentage of any litigation recovery, but then to conceal the fact that Canopy may deduct litigation expenses. Thus, the obfuscation argument offers no evidentiary basis to conclude the term "proceeds" is ambiguous.

Beyond evidence of the attendant cireumstances surrounding the execution of the writings, Canopy argues the term "proceeds" is ambiguous on its face. It offers several mutually exclusive dictionary definitions that could include deductions for expenses incurred in obtaining the proceeds. The test for determining facial ambiguity in a contract, however, is not whether several definitions of a word exist, but whether the term, in context of the contract, "is capable of more than one reasonable interpretation." WebBank v. American Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 20, 54 P.3d 1139.

27 Here, the term "proceeds" is not capable of reasonably being interpreted to include a litigation expense deduction because the term "Gross Revenue," the definition of which includes "proceeds," describes exactly what should be deducted to arrive at a net. It says "/a/ll proceeds, gross receipts, and revenues of [Canopy], net of returns and allowances." (Emphasis added.) It is unreasonable to say the term "proceeds" might include a deduction when, in the same sentence, the parties expressly inserted deductions for "returns and allowances." If "proceeds" meant "net proceeds," there would be no reason to insert "net of returns and allowances." (Emphasis added.) This would run afoul of our rules of contract construction because it would render meaningless the deductions portion of the definition of "Gross Revenue." See Plateau Mining Co. v. Utah Div. of State Lands & Forestry, 802 P.2d 720, 725 (Utah 1990) ("Each contract provi-gion is to be considered in relation to all of the others, with a view toward giving effect to all and ignoring none." (Internal quotes and citation omitted.)). Indeed, "a word is known by the company it keeps." Hansen v. Wilkinson, 658 P.2d 1216, 1217 (Utah 1983) (internal quotes and citation omitted).

128 Further, even if the term "proceeds" could be reasonably interpreted to mean "net proceeds" or "gross proceeds," as Canopy asserts, the definition of "Gross Revenue" provides for Novell's percentage to be applied against "all proceeds." (Emphasis added.) Even if the term "proceeds" is ambiguous, the term "all" is not. "[All proceeds" would include both "gross proceeds" and "net proceeds," effectively precluding the deductions Canopy seeks. Thus, the district court correctly determined the term "proceeds" is not ambiguous in the context of this contract and susceptible to being interpreted to include deductions for litigation expenses. Accordingly, we affirm the district court's grant of summary judgment to Novell on its affirmative claim against Canopy.

CONCLUSION

129 The district court correctly concluded the royalty base provisions of the written agreements were integrated, thus merging any prior oral agreements. It accordingly correctly granted partial summary judgment to Novell on Canopy's counterclaim. The district court also correctly concluded that the contract term "proceeds" contained in the definition of "Gross Revenue" is unambiguous and does not contemplate the deduction of Canopy's litigation expenses. Accordingly, it correctly granted summary judgment on Novell's substantive claim against Canopy. We affirm.

1 30 WE CONCUR: GREGORY K. ORME, Judge and WILLIAM A. THORNE JR., Judge.

      . For convenience, we refer to Caldera and Canopy collectively as Canopy.

      . Because we determine the district court correctly granted summary judgment to Novell, we do not reach the challenge to the district court's denial of Canopy's summary judgment motion.

      . Thus, even if a contract is integrated such that the parol evidence rule precludes the admission of extrinsic evidence to contradict the terms of the written contract, if the integrated contract contains a term which is ambiguous, extrinsic evidence will be admitted to clarify the meaning of the contract.

      . The district court perspicuously noted that the Canopy position "requires the court to reach the anomalous conclusion that by taking the attorney[ ] fee provision out of the agreement it really was writing the provision into the agreement."

      . Canopy does not argue thai litigation expenses are subsumed within the term "returns and allowances."


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    2004 UT App 171
    STATE of Utah, DEPARTMENT OF PUBLIC SAFETY, Petitioner, v. UTAH CAREER SERVICE REVIEW BOARD, Respondent.
    No. 20030155-CA.
    Court of Appeals of Utah.
    May 20, 2004.
    Mark L. Shurtleff, Attorney General, Laurie L. Noda, and Brent A. Burnett, Assistant Attorneys General, Salt Lake City, for Petitioner.
    Mark L. Shurtleff, Attorney General, Joel A. Ferre, and Mark E. Burns, Assistant Attorneys General, Salt Lake City, for Respondent.
    Before Judges DAVIS, GREENWOOD, and THORNE.
   MEMORANDUM DECISION

DAVIS, Judge:

T1 The Utah Department of Public Safety (Department) seeks review of a final decision of the Utah Career Service Review Board (Board) in the matter of Utah Highway Patrol Trooper Ross G. Pace. We reverse and remand.

T2 The Department argues that the Board erred in its interpretation of the Department's pursuit policy (the policy) and its decision to reverse the Department's determination that Pace violated the policy.

Under the Utah Administrative Procedures Act, we must determine whether the [Board], by virtue of its experience or expertise, is in a better position than [we are] to give effect to the regulatory objective to be achieved. If so, we review the [Board]'s decision to see if it was reasonable or rational. If not, we review it for correctness.

Utah Dep't of Corr. v. Despain, 824 P.2d 439, 443 (Utah Ct.App.1991) (second alteration in original) (quotations, citation, and footnotes omitted). In this case, we conclude that the Board is not in a better position than we are to give effect to the policy and, therefore, we review the Board's decision for correctness. See id.

13 The policy defines the term "vehicular pursuit" as "(aln active attempt by an officer in an authorized emergency vehicle to apprehend fleeing suspects who are attempting to avoid apprehension through evasive and unlawful tactics." The policy also sets forth the following requirements for initiation of a "vehicular pursuit":

Any law enforcement officer in a department vehicle with operable emergency vehicle equipment and radio may initiate a vehicular pursuit when the following criteria are met:
a. The suspect exhibits the intention to avoid apprehension through evasive or unlawful tactics.
b. The suspect operating the vehicle refuses to stop at the direction of the officer.
c. The suspect's actions are such that failure to pursue would further enhance the danger presented to the public.

(Emphasis added.) After an officer initiates a "vehicular pursuit" pursuant to the preceding definition and requirements, the policy then requires that the officer adhere to numerous procedures. The Department argues that the Board erred by interpreting the policy to mean that "these required procedures come into effect only after [an officer] makes a subjective decision that he or she is involved in a[ vehicular] pursuit."

$4 Under the plain language of the policy, the preceding definition and requirements focus primarily on the suspect's conduct and the officer's subjective determinations about the suspect's conduct, rather than the officer's conduct. Further, the ultimate decision about whether to initiate a "vehicular pursuit" is left to the officer. However, contrary to the Board's interpretation of the policy, the officer's subjective determination as to whether he or she initiated a "vehicular pursuit" is not the controlling or overriding factor in determining whether the officer was engaged in a "vehicular pursuit"; rather, it is one of several factors that must be considered.

15 Thus, we disagree with the Board's application of the policy to the facts of this case. Pace's "Incident Report" provides: (1) Pace was eastbound in an authorized emer-geney vehicle; (2) Pace noticed the suspect traveling westbound at a high rate of speed; (3) after using his radar to determine that the suspect was speeding, Pace activated his emergency lights and began a U-turn through the median; (4) while passing Pace, the suspect "looked right at [Pace] and then sped up"; (5) after completing his U-turn, Pace "started to chase" the suspect; (6) while chasing the suspect for nearly ten miles, Pace "could keep track of" the suspect in front of him, but could not gain on the suspect at speeds of eighty to one hundred miles per hour; (7) Pace observed the suspect pass two vehicles in the emergency lane and swerve across several lanes of traffic; and (8) after the suspect pulled into a rest area and stopped, Pace arrested the suspect for evading.

16 Accordingly, Pace determined that "Itlhe suspect exhibited] the intention to avoid apprehension through evasive or unlawful tactics"; "[the suspect operating the vehicle refuse[d] to stop at the direction of the officer"; and "[the suspect's actions [were] such that failure to pursue would[ have)] further enhance[d] the danger presented to the public." The report also shows that Pace's actions qualified as "[aln active attempt by an officer in an authorized emergency vehicle to apprehend fleeing suspects who [were] attempting to avoid apprehension through evasive and unlawful tactics." Although Pace later testified that he believed he was not involved in a "vehicular pursuit," this self-serving testimony does not trump the undisputed facts set out in Pace's incident report establishing that both the definition and requirements of a "vehicular pursuit" were satisfied. Because Pace's actions satisfied the definition and requirements of a "vehicular pursuit" under the policy, we conclude that the Board erred by reversing the Department's determination that Pace violated the policy.

17 We reverse and remand to the Board for such proceedings as may now be appropriate.

T8 WE CONCUR: PAMELA T. GREENWOOD and WILLIAM A. THORNE JR., Judges.

      . Despite the Department's assertions to the contrary at oral argument, these requirements clearly supplement the definition of a "vehicular pursuit" under the policy. Because each of the requirements must be satisfied before an officer may initiate a "vehicular pursuit," it logically follows that they help to define what constitutes a "vehicular pursuit."

      . The Department asserts that the Board's interpretation of the policy has made it "unenforcea-bie" "(bly reading into the definition" of a "vehicular pursuit" "an absolute discretion on the part of an officer in determining whether his or her actions meet the definition" of a "vehicular pursuit." Our decision respecting the Board's interpretation of the policy should remedy this concern. Under our interpretation of the plain language of the policy, the officer is left with the discretion to initiate a "vehicular pursuit," but not "absolute discretion" in determining whether his or her actions satisfy the definition and requirements of a "vehicular pursuit."

      . - The relevant part of the statute governing evading provides:
      An operator who receives a visual or audible signal from a peace officer to bring the vehicle to a stop may not:

        (i) operate the vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person; or (ii) attemapt to flee or elude a peace officer by vehicle or other means.
      Utah Code Ann. § 41-6-13.5(1)(a)®M(@Gi) (Supp. 2003).


author: GOLDEN, Justice.

text:
    2004 WY 73
    Jeff EASUM and Lyon Easum, Appellants (Plaintiffs), v. Clay MILLER, d/b/a Prime Power & Communications, LLC, Appellee (Defendant).
    No. 02-242.
    Supreme Court of Wyoming.
    June 24, 2004.

      Representing Appellant: John R. Hursh of Central Wyoming Law Associates, P.C., Riv-erton, Wyoming.
    Representing Appellee: Judith Studer of Schwartz, Bon, Walker & Studer, LLC, Cas-per, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] The primary issue in this appeal is the reliability of the differential diagnosis technique for determining general and specific causation in a general negligence action. Differential diagnosis determined that the severe illness suffered by Appellant Jeff Ea-sum (Easum) was caused by numerous electrical shocks that he received while working on his family-owned dairy. In a summary judgment ruling, the trial court determined that this particular differential diagnosis was inadmissible because it was unreliable.

[12] Easum began suffering severe illness shortly after Appellee Clay Miller's company, Prime Power and Communications, LLC, (Prime Power) replaced a transformer near Easum's family-owned dairy. An unconnected neutral line was determined to be the cause of stray voltage found throughout the dairy that was administering shocks to Ea-sum as he worked at the dairy. After the neutral line was properly connected, the stray voltage and shocks ceased; however, Easum continued to suffer from his symptoms and was ultimately diagnosed with reflex sympathetic dystrophy (RSD) caused by electrical injury. Easum and his wife (Ea-sums) brought suit against Prime Power for personal injury and property damages.

[13] Prime Power settled with Easums for property damages; however, it moved for summary judgment on other damages. Ea-sums' suit was dismissed by grant of summary judgment based upon a determination that their expert's testimony regarding specific causation was inadmissible as unreliable. The trial court ruled that the expert's differential diagnosis technique insufficiently satisfied reliability standards because the scientific methodology used to determine that low level electric current could cause RSD was inadequate. We reverse and remand for trial.

ISSUES

[T4] Easums present the following statement of the issues:

1. Did the trial court err in rejecting the Appellants' treating physician's opinions relating to medical causation resulting from their properly performed differential diagnosis as insufficient to satisfy the reliable scientific methodology requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1998) (hereinafter Daubert) and Bunting v. Jamieson, 984 P.2d 467 (Wy.1999) (hereinafter Bunting ).
2. Did the trial court err by redefining medical causation to require general causation based peer reviewed medical literature in addition to the medical causation derived from a differential diagnosis before treating physician testimony will be allowed?
3. In a case when the Appellants' treating physicians' opinions on causation were challenged by the Appellee's forensic experts on their credibility and upon the degree or level of electrical exposures required to cause neurological injury, was it proper for the Trial Court to find that there were no disputed material facts for jury determination and enter a Summary Judgment in this matter?

Appelices Miller and Prime Power state the issues as:

1. Did the district court properly grant summary judgment to the defendant on the basis that plaintiffs could not prove that defendant's conduct was the proximate cause of Plaintiff Jeff Easum's injuries?
(a) Did the district court properly find that plaintiffs' expert opinion that exposure to low levels of electricity causes reflex sympathetic dystrophy ("RSD"), to be based on speculation and contrary to well accepted science?
(b) Is a medical doctor allowed to testify as to causation based on exposure to electricity when he lacks a basic understanding of the physiological effect of electricity on the human body and such conclusion is not based on sound methodology or good science?
(c) Is a causation opinion by a medical doctor exempted from the basic requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993) and Bunting v. Jamieson, 984 P.2d 467 (Wyo.1999) when there exists no sound scientific or medical basis as to the cause of his differential diagnosis?

FACTS

[T5] As required by our standard of review for summary judgment, we view the record, and the reasonable factual inferences drawn from it, in the light most favorable to the Easums as the non-moving party. Roussalis v. Wyoming Medical Center, Inc., 4 P.3d 209, 216 (Wyo.2000).

[16] Easum works and lives at his family-owned dairy. After the dairy decided to upgrade its electrical service, the utility company contracted with Prime Power, a local electrical contractor, to upgrade the transformer that serviced the dairy. On February 26, 1999, Prime Power performed electrical work and hung a transformer on an electrical pole near the ranch. Prime Power admits failing to connect the neutral line to the transformer. Before that failure was discovered, however, the dairy cattle were observed reacting in a manner consistent with animals receiving electrical shocks, such as not eating, not wanting to return to the barn, and not cooperating. Easum also experienced numerous shocks. On March 16, 1999, another electrical contracting firm began investigating the problem and discovered the failure to connect the neutral wire. Prime Power returned to the ranch and, after that connection was made, no further electrical shocks were experienced by Ea-sum or observed to be affecting cattle.

[17] Easum first experienced shocks in the dairy on or about March 1, 1999. Between that date and March 17, 1999, Easum experienced numerous shocks while in the dairy milking stalls, the sinks and the tanks. He received the worst shocks when his hands were in water. On March 12, 1999, Easum developed symptoms of nausea, tremors, headache, and extreme fatigue. His illness caused him to stay home the next day, and his symptoms subsided. He returned to the dairy on March 15, 1999, and was again shocked causing his symptoms to reappear immediately. After the electricians connected the neutral wire, the electric shocks were no longer experienced; however, Easum's symptoms continued and worsened.

[T8] Before receiving the shocks, thirty-year-old Easum's only known health problem was slightly elevated blood pressure. When his symptoms did not subside, his wife called their family physician, Dr. Wurzel, on March 26, 1999, to discuss whether the effects of electrical shock might be long-term or even permanent. Easum saw Dr. Wurzel on May 21, 1999, and the doctor noted numerous symptoms including fatigue, lack of ambition, tremors, difficulties with fine motor skills, vision blurring, lack of libido, weakness, and increased blood pressure. Later, Easum returned with these symptoms and headaches and swollen, painful hands. Laboratory tests were conducted which indicated some abnormalities. Dr. Wurzel referred Easum to Dr. Norris, a board certified rehabilitative medicine physician and psychiatrist.

[19] Dr. Norris noted that these many symptoms occurred after repeated low voltage electrical shocking over a twenty-day period and prepared an extensive medical report. He ordered an EMG and MRI. The EMG returned abnormal, and the MRI indicated a brain cyst. Easum was referred to another specialist who determined that the brain cyst was not causing his symptoms. This specialist also noted that the onset of symptoms occurred soon after exposure to low level electric shocks.

[110] Easum was then referred to a rheumatologist, who again did extensive diagnostic testing and was able to rule out rheumatoid arthritis, which had been suspected as the cause of the laboratory test abnormalities. After the extensive reports of these specialists were discussed with the Ea-sums by Dr. Norris and Dr. Wurzel, Easum was referred to Dr. Hooshmand, a neurologist in Florida, specializing in electrical injury type cases. Dr. Hooshmand has identified electrical injury in thirteen other dairy farmers from different parts of the country suffering similar symptoms as Easum and concluded in all that "stray voltage" was the cause of their medical condition.

[111] Under the direction of Dr. Hoosh-mand, Easum underwent fourteen days of extensive diagnostic testing, including qualitative sensory testing, infrared thermogra-phy imaging on two occasions, electroenceph-lography tests, visual evolved response tests, brain mapping tests, brain stem evoke response tests and neuropsychometric testing. The electroencephlogram test was abnormal, and another specialist, Dr. Weise, reported it to be consistent with electrical injury. The thermography test was also abnormal and determined consistent with tissue responses to electrical injury. From the use of differential diagnosis technique, Dr. Hooshmand concluded that Easum was suffering from Reflex Sympathetic Dystrophy (RSD) and an immune system dysfunction. Doctors Norris and Wurzel concurred in that diagnosis. Ea-sum was prescribed treatment that is administered and monitored by the latter two doe-tors and, while he has shown improvement, continues to be afflicted by many of his symptoms.

[112] Dr. Hooshmand concluded that the cause of Easum's RSD was his exposure to low levels of electrical current; however, RSD has no known etiology other than heredity and repetitive strain injury. Easum, nevertheless, filed suit against Appellees and presented Dr. Hooshmand as his expert on causation. Appellees moved for summary judgment on the basis that the technique of differential diagnosis is unreliable for determining general causation and contended that this technique was too unreliable to admit regarding the specific causation because it has not been scientifically proved that RSD can result from low levels of electrical current.

[T13] The trial court determined that the technique of differential diagnosis is reliable only if the remaining cause is one that is scientifically established and then concluded that the basic research had not been conducted in this case. The trial court stated:

The scientific method consists of 4 steps: gathering information, classifying those data, forming a theory or prediction of behavior, and testing that theory. Dr. Hooshmand skipped the first two steps and arrived at a conclusion based upon the common fallacy in reasoning known as "after this, therefore, because of this."
Dr. Hooshmand has treated 13 dairy farmers with similar symptoms. Even with this limited sample, there has been no rigorous collection of data. We are not told the medical histories of the patients, the durations and intensities of electrical exposure, the reactions of others who were exposed, and the incidence of this condition among the general population compared to the incidence among dairy farmers or some other group exposed to low levels of electricity.

[114] The trial court dismissed Easums' case authority supporting the differential diagnosis as distinguishable either because causation was not an issue in those cases or because the causation diagnosis was supported by medical literature, peer-reviewed articles, clinical trials, and product studies. The trial court concluded that the claim of injury from exposure to low levels of electrical current was not based upon science but was only a matter of speculation. Summary judgment was granted for Appellees, and this appeal followed.

DISCUSSION

Standard of Review

[115] Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Roussalis ,4 P.3d at 228. In reviewing a summary judgment, we do not accord any deference to the district court's decisions on issues of law, and we examine de novo the entire record -the parties' submissions of evidence-in the light most favorable to the parties who opposed the motion. Id. at 229. We give the Easums "the benefit of every reasonable inference and every doubt," which may be drawn from the materials either supporting or opposing the motion. Id. (quoting Fiscus v. Atlantic Richfield, 773 P.2d 158, 161 (Wyo.1989)).

Standard for Admission of Expert Opinion

[116] A qualified expert witness may testify about scientific, technical, or specialized knowledge if such testimony will help the jury understand the case. W.R.E. 702. When determining the admissibility of expert testimony, the district court's gatekeeping function requires it to determine whether the methodology or technique used by the expert to reach his conclusions is reliable and, if so, the court must then determine whether the proposed testimony "fits" the facts of the particular case. Bunting v. Jamieson, 984 P.2d 467, 471-72 (Wyo.1999) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (19983)).

[M17] Daubert provided a non-exclusive list of four criteria to be used to guide the trial court's assessment of reliability:

1) whether the theory or technique in question can be and has been tested;
2) whether it has been subjected to peer review and publication;
38) its known or potential rate of error along with the existence and maintenance of standards controlling the technique's operation; and
4) the degree of acceptance within the relevant scientific community.

Bunting, 984 P.2d at 472. Because these criteria cannot be applied in every case, "[t]he initial step in reviewing the admissibility of expert testimony is the determination whether the Daubert factors apply to the specific testimony at issue. Where they are reasonable measures of reliability, these factors should be considered." Id. at 475.

[118] It cannot be overemphasized that methodology should be distinguished from the conclusion of the expert. A trial judge need not and should not determine the scientific validity of the conclusions offered by an expert witness. Rather, to decide admissibility, the trial judge should only consider the soundness of the general scientific principles or reasoning on which the expert relies and the propriety of the methodology applying those principles to the specific facts of the case. * Id. at 472-78.

[119] -In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 LEd.2d 238 (1999), the United States Supreme Court further clarified the seope of Daubert and discussed additional factors that may be used by a trial court in fulfilling its gatekeeping function. Bunting, 984 P.2d at 471. Bunting then considered specific factors, including:

1) The experience and specialized expertise of the proffered expert;
2) Whether or not that expert is testifying about matters occurring "naturally and directly" out of research conducted independent of litigation; and
3) Any "non-judicial" utilization of the expert methodology in question.

Id. at 472 (citing Ambrosini v. Labarragque, 101 F.3d 129, 140 (D.C.Cir.1996); Daubert, 43 F.3d 1311, 1317 (9 Cir.) (on remand), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995); and In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 n. 8 (3d Cir.1994)).

[120] The United States Supreme Court favored admission of evidence on the borderline. "Vigorous eross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional, and appropriate means of attacking shaky but admissible evidence." 'Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. At the same time, the Court recognized the significant difference between "the quest for truth in the courtroom and the quest for truth in the laboratory." Id. at 596-97, 118 S.Ct. at 2798. Scientific inquiry must necessarily be broad and far-reaching, with the reliability of theories under continuous study and revision. Resolution of a legal dispute, on the other hand, involves binding, final judgments that cannot be based on conjecture. Consequently, there may well be "authentic insights and innovations" of science that are nonetheless inadmissible in a court of law. Id. at 597, 118 S.Ct. at 2798-99.

[T21]l We review de novo the question whether the district court performed its gatekeeper role and applied the proper legal standard in admitting or exelud-ing an expert's testimony. We then review for an abuse of discretion a district court's decision to admit or reject expert testimony. Seivewright v. State, 7 P.3d 24, 29 (Wyo.2000); Springfield v. State, 860 P.2d 435, 438-39 (Wyo.1993); Betzle v. State, 847 P.2d 1010, 1022 (Wyo.1998). We agree with Kumho Tire Co. that the trial court's broad dis-eretion applies both in deciding how to assess an expert's reliability, including what procedures to use in making that assessment, as well as in making the ultimate determination of reliability. Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. at 1176. Accordingly, we will not disturb the district court's ruling unless it has failed to exercise sound judgment with regard to what is right under the circumstances or has acted arbitrarily or capriciously. Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

Electrical Current

[122] Creating an electric cireuit is a function of force which is measured in voltage, current which is measured in amperes, and resistance which is measured in ohms. Simply stated, electricity involves the flow of energy (electrons) along the path of least resistance toward a natural ground. See Schlader v. Interstate Power Co., 591 N.W.2d 10, 12 (Iowa 1999); see also W.B. Saunders, Nave & Nave Physics For the Health Sciences, Electric Shock Hazards ch. 14 (8d ed.1985). All objects are either resistors or conductors. The electric current is the most important physiological variable for determining the severity of an electric shock. However, this current is in turn determined by the driving voltage and the resistance of the path that the current follows through the body. A voltage that produces only a mild tingling sensation under one circumstance can be a lethal shock hazard under other conditions. This uncertainty is caused because although the skin acts as a natural resistor to flow, i.e., normal skin has a resistance of 25,000 ohms and calloused skin has a resistance of 2,000,000 ohms, wet skin has a resistance of only 1,500 ohms. One hundred and twenty volts delivered to a calloused finger would probably cause a tingling sensation, that voltage delivered to dry skin would cause a painful shock, but that same voltage to wet skin could prove to be a lethal shock. Id.

[123] The reeord shows that when electricians measured voltage in the areas where Easum was working, their readings were consistently between thirty and fifty volts, with the highest reading at sixty-seven volts. The resistance is unknown as is the level of current; however, Easum stood in water and placed his hands in water so presumably resistance was low. As we have already seen, the margin between a minor shock with no effect and electrocution is very narrow. The issue of stray voltage ih connection with dairies and the effect on dairy herds is not new to courts and is explained as follows:

All electricity leaving an electrical substation must return to that substation in order to complete a cireuit. Unless that cireuit is completed, electricity will not flow. The current leaves the substation on a high voltage line which eventually connects to some electrical 'appliance.' After exiting the 'appliance' that current must return to the substation. The neutral-grounded network provides the returning current two choices. Either it can return via the neutral line, which accounts for the second wire on our electrical poles, or it can return through the ground. These two pathways comprise the grounded-neutral network. Electricity flows through the path of lowest resistance. If there exists more resistance in the neutral line than in the ground, the current will flow through the ground to return to the substation. Neutral-to-earth voltage or stray voltage will occur when current moves from either the neutral line to the ground or from the ground to the neutral line. It uses a cow as a pathway if that animal happens to bridge the gap between the two. A cow's hooves provide an excellent contact to the earth while standing on wet concrete or mud, while at the same time the cow is contacting the grounded-neutral system consisting of items such as metal stanchions, stalls, feeders, milkers, and wa-terers. The current simply uses the cow as a pathway in its eventual return to the substation. - Apparently very slight voltages can affect cattle. Evidence [has] suggested anything greater than one volt can be catastrophic to a dairy farm.

Kaech v. Lewis County Public Util. Dist., 106 Wash.App. 260, 23 P.3d 529, 533 n. 3 (2001).

Reflex Sympathetic Dystrophy

[124] Reflex sympathetic dystrophy was first described by medical authorities in 1864 and, until recently, was considered a disorder of the sympathetic nervous system. This network of nerves, located alongside the spinal cord, controls certain functions in our bodies, such as the opening and closing of blood vessels and sweat glands. The disorder is difficult to diagnose because it has many variations, often follows minor injury, and evolves and spreads over time. The disorder is unique in that it simultaneously affects the nerves, skin, muscles, blood vessels, and bones and is characterized by a devastating amount of pain, swelling, discoloration, and stiffness. Robert J. Schwartz man, M.D., New Treatments for Reflex Sympathetic Dystrophy, New Eng. J. Med., Vol. 348, No. 9 (Aug. 31, 2000).

[125] A new name, the complex regional pain syndrome, is gaining recognition because the role of the sympathetic nervous system in many aspects of the illness is not clear, and dystrophy may not occur in all patients. The two types of complex regional pain syndrome are distinguished by whether a definable nerve injury is present. In the early stages of reflex sympathetic dystrophy, the pain is more severe than would be expected for the degree of tissue damage, and the pain spreads progressively from a nerve to a regional distribution. The cause of RSD is unknown. As the illness evolves, pain becomes intense and chronic; nails, hair, skin and bone change; and weakness, swelling, tremors, sleep disruptions, anxiety and depression may be experienced. Id.

Differentiél Diagnosis

[126] Dr. Hooshmand presented a medical opinion that Easum's condition was caused by receiving a significant number of electrical shocks over a sustained period of time. Dr. Hooshmand's research in this case was not "conducted independent of the litigation," and was developed "expressly for purposes of testifying." Also, his research was not "subjected to normal scientific scrutiny through peer review and publication." Ordinarily, these Dawbert factors would indicate unreliability unless good reason existed to explain the absence of independence, peer review and publication. Clausen v. M/V New Carissa, 339 F.3d 1049, 1056 (9th Cir.2003). In the case of Dr. Hooshmand, the trial court found it significant that his causation diagnosis was unsupported by medical literature, peer-reviewed articles, clinical trials, and product studies.

[127] Here, medical ethical rules do not permit conducting clinical testing that administers low levels of sustained electrical current to humans to see if RSD results. Dr. Hooshmand examined and treated a patient complaining of symptoms consistent with RSD following sustained exposure to electric shock and, later, that patient filed suit. Similarly, there may exist good reason why an expert's research may not have been published. Id. In this case, the apparent reason is that Dr. Hooshmand's research involving the phenomenon of electrical injury to dairy farmers is both recent and singular.

[T28] In the absence of these reliability factors, an expert may use an objective source to show that the scientific evidence method has been followed by at least a recognized minority of experts in their field. Id. Objective sources may include "a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like." Id. Here, Dr. Hooshmand followed a differential diagnosis method to determine the cause of Ea-sum's condition.

[129] " 'Differential diagnosis' refers to the process by which a physician 'rules in' all scientifically plausible causes of the plaintiff's injury. The physician then 'rules out' the least plausible causes of injury until the most likely cause remains. The remaining cause is the expert's conclusion." Hollander v. Sandoz Pharmaceuticals, 289 F.3d 1193, 1209 (10th Cir.2002) (citation omitted). The Fourth Cireuit describes it this way:

Differential diagnosis, or differential etiology, is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated. A reliable differential diagnosis typically, though not invariably, is performed after physical examinations, the taking of medical histories, and the review of clinical tests, including laboratory tests, and generally is accomplished by determining the possible causes for the patient's symptoms and then eliminating each of these potential causes until reaching one that cannot be ruled out or determining which of those that cannot be excluded is the most likely.

Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir.1999) (internal quotation marks omitted). Most physicians use the term differential diagnosis to describe the process of determining which of several diseases is causing a patient's symptoms while courts use the term more generally to describe the process by which causes of the patient's condition are identified. Clausen, 339 F.3d at 1057 n. 4; see, e.g., Westberry, 178 F.3d at 262.

[130] In general terms, the reliability of differential diagnoses is easily resolved. "Most cireuits have held that a reliable differential diagnosis satisfies Daubert and provides a valid foundation for admitting an expert opinion. The circuits reason that a differential diagnosis is a tested methodology, has been subjected to peer review/publication, does not frequently lead to incorrect results, and is generally accepted in the medical community." Turner v. Towa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir.2000); see Westberry, 178 F.8d at 262-63. Physicians routinely determine medical causation by this technique, and we have previously determined that the technique of differential diagnosis for establishing causation can be reliable under Daubert. See Reichert v. Phipps, 2004 WY 7, ¶ 18, 84 P.3d 353, ¶ 18 (Wyo.2004).

[T381] Although courts have reached contrasting conclusions about reliability under Daubert, the Daubert reliability inquiry is case-specific, and, in general terms, the reliability of a proper differential diagnoses need not be addressed. Hollander, 289 F.3d at 1210 (citing Kumho Tire Co., 526 U.S. at 150, 119 S.Ct. at 1175); see also Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89, 105 (2004). Our task is only to decide whether the trial court abused its discretion by characterizing the specific diagnosis at issue here as unreliable. Hollander, 289 F.3d at 1210. "A fundamental assumption underlying this method is that the final, suspected 'cause' remaining after this process [differential diagnosis] of elimination must actually be capable of causing injury. That is, the expert must 'rule in' the other suspected cause as well as 'rule out' other possible causes. And, of course, expert opinion on this issue of general causation must be derived from scientifically valid methodology." Id. at 1211 (quoting Siharath v. Sandoz Pharmaceuticals, 131 F.Supp.2d 1347, 1362-63 (N.D.Ga.2001)).

[1382] Reliable differential diagnosis alone may provide a valid foundation for a causation opinion, even when no epidemiological studies, peer-reviewed published studies, animal studies, or laboratory data are offered in support of the opinion. Hollander, 289 F.3d at 1212 (citing Westberry, 178 F.3d at 262). As the Eighth Cireuit has written:

We do not believe that a medical expert must always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness. The first several victims of a new toxic tort should not be barred from having their day in court simply because the medical literature, which will eventually show the connection between the victims' condition and the toxic substance, has not yet been completed. If a properly qualified medical expert performs a reliable differential diagnosis through which to a reasonable degree of medical certainty, all other possible causes of the victims' condition can be eliminated, leaving only the toxic substance as the cause, a causation opinion based on that differential diagnosis should be admitted.

Hollander, 289 F.3d at 1212 (quoting Turner, 229 F.3d at 1209).

[T83] "Even with all the advances of medical science, the practice of medicine remains an art. A properly conducted and explained differential diagnosis is not "junk science. If a differential diagnosis provides a sufficient basis on which to prescribe medical treatment with potential life- or-death consequences, it should be considered reliable enough to assist a fact finder in understanding certain evidence or determining certain fact issues." Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 604-05 (Tex.App.2002). Courts that accept the differential diagnosis as reliable will permit it to establish legal causation when applied to an illness with some unknown causes. "Such a bright-line rule would be unduly restrictive in a world in which many things are not or cannot be known with absolute certainty." Id. at 605 n. 25; see Westberry, 178 F.3d at 265; cf., Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 202 (4th Cir.2001) (outside toxic-tort context, relying on Westberry for same). "A differential diagnosis that fails to take serious account of other potential causes may be so lacking that it cannot provide a reliable basis for an opinion on causation. However, a medical expert's causation conclusion [based on a differential diagnosis] should not be excluded because he or she has failed to rule out every possible alternative cause of a plaintiff's illness. The alternative causes suggested by a defendant affect the weight that the jury should give the expert's testimony and not the admissibility of that testimony." - Westberry, 178 F.3d at 265 (citation and internal quotation marks omitted); see also Cooper, 259 F.3d at 202.

[134] Depending on how the injury occurred, a tort action involves either general negligence, product liability or a toxic tort. Most of the law that we have recited above involved either product liability or toxic tort actions prosecuted in federal courts where federal courts require that proof of causation be produced for two components, general and specifics. AA. White, The Admissibility of Differential Diagnosis Testimony to Prove Causation in Toxic Tort Cases: The Interplay of Adjective and Substantive Law, 64 Law & Contemp. Probs. 107, 110 (2001). We have previously held that electricity is not a product and plainly this case does not involve toxic tort allegations. Wyrulec Co. v. Schutt, 866 P.2d 756, 760 (Wyo.1993). Ea-sum's injuries present a general tort claim; however, we believe that this case requires that we determine both general and specific causation.

Reliability of Dr. Hooshmand's Differential Diagnosis

[185] Dr. Hooshmand's conclusions established both general and specific causation. He established general causation with evidence that electrical shock can cause harm to humans receiving them and established specific causation by evidence that the electrical shocks received by Easum did in fact cause the onset of his RSD. As our previous discussion indicates, the harm produced on dairy farms by stray voltage is well-established. For many years, Dr. Hooshmand has studied the effects of electrical injury on human patients and concluded that electrical injury can produce disease or disorders in patients. Among his patients were a number of dairy farmers, all of whom received electrical shocks of varying degrees and later suffered illnesses. Dr. Hooshmand believed that the shocks caused the illnesses in those particular patients. Studies show that elec-trie shock can cause trauma to nerve and tissue, and animal studies, usually involving dairy herds, show that very low voltages can have devastating physical effects upon cattle. Dr. Hooshmand properly relied upon studies finding that electrical voltage can seriously harm dairy herds and his own studies as support for the general proposition that electricity, even at low levels, can harm humans. Whether his conclusion is sound presents a jury question; however, reliance upon these studies is not an improper methodology.

[136] Dr. Hooshmand determined that Easum had suffered illness as the result of harm caused by sustained incidences of electric shock and further concluded that Ea-sum suffered from RSD. From this conclusion, the district court determined that no reliable scientific methodology established that low levels of electric current will cause RSD. These last two conclusions, however shaky, present jury questions. The district court's proper focus should have been the reliability of Dr. Hooshmand's opinion that Easum's condition was caused by sustained incidences of electric shock. To make that determination, the focus must be on whether Dr. Hooshmand properly used the technique of differential diagnosis to decide that sustained electric shocks produced illness in Ka-sum.

[137] A differential diagnosis is properly performed when objective tests are used to rule out as many causes as possible. Ea-sum's medical history indicated that he had no symptoms before experiencing shocks and began experiencing symptoms while receiving shocks over a sustained period. Several doctors and Dr. Hooshmand performed numerous objective tests that ruled out other causes of injury and confirmed physical injury consistent with electrical shock. Dr. Hooshmand reviewed Easum's medical history, conducted days of physical examination and testing, relied upon this testing and that of other specialists to eliminate other possible diagnoses, and reviewed electrical injury information and medical studies. Dr. Hoosh-mand properly evaluated and diagnosed Ea-sum using standard medical procedure and his methodology was based upon valid scientific method. Although the district court believed that the timing between Easum's electrical shocks and the onset of his symptoms discredited Dr. Hooshmand's diagnosis, a temporal relationship remains a factor that can support Dr. Hooshmand's conclusion.

[138] Even though science remains unsure how RSD develops, Dr. Hooshmand has personally conducted research in this area and has had numerous patients with this condition. Dr. Hooshmand does not believe that Easum's condition is unique to dairy farmers and has researched this particular injury to this particular group of patients. Dr. Hooshmand's conclusions may indeed be wrong; however, his methodology is reliable and the accuracy of his conclusions presents a jury question that must be presented at trial.

[139] The district court's order is reversed, and this case is remanded for trial.

      . "The word 'amp' is a household word. A French physicist named Andre Ampere (1775-1836) is credited with describing.-the flow of electrical current; his name became attached to the description of electrical flow and the word 'ampere' is the standard measure of electric current everywhere. An ampere is equivalent to a flow of one coulomb per second or to the steady current produced by one volt applied across a resistance of one ohm (Webster's 7th New Collegiate Dictionary, 1967)." Amp, Inc. v. Foy, 379 F.Supp. 105, 108 (W.D.N.C.1974) (emphasis added).

      . This definition was provided in the context of a product liability claim. The federal courts appear to be in dispute whether the "rule in before rule out" method applies in all types of claims and some apply the rule differently depending on whether the claim is products liability, toxic torts, or general negligence. Hollander, 289 F.3d at 1210.

      . General causation deals with whether the substance at issue, eg., silicone, can cause diseases or disorders in people in general. Specific causation focuses upon whether the substance, eg., silicone, was in fact the cause of the ailments or symptoras in the particular patient. Claims must provide admissible evidence of both general and specific causation for these two types of claims. White, supra, at 110.


author: LEHMAN, Justice.

text:
    2004 WY 74
    In the Interest of KC, a minor, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. C-03-11.
    Supreme Court of Wyoming.
    June 28, 2004.
    Representing Appellant: Harry G. Bondi of Harry G. Bondi Law Offices, P.C., Casper, WY. Argument by Mr. Bondi.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General. Argument by Mr. Pauling.

      Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[11] After trial before the juvenile court, KC, a minor, was adjudicated a juvenile delinquent. KC appeals that determination, raising procedural errors. Upon our review, we reverse and remand.

ISSUES

[12] A summary of the issues presented by the parties is as follows:

1. Did the court abuse its discretion when it prohibited two of KC's proposed witnesses from testifying for violating its sequestration order?
2. Did reversible error occur because the prosecutor failed to provide KC with a copy of the tape-recorded police interview with the alleged victim?

FACTS

[13] On October 8, 2002, a juvenile petition was filed alleging that KC was a juvenile delinquent. The petition stemmed from allegations that KC subjected a female minor to sexual contact in violation of Wyo. Stat. Ann. § 6-2-3183 (LexisNexis 20083) and immodest, immoral, or indecent liberties in violation of Wyo. Stat. Ann. § 14-8-105 (LexisNexis 2008). An affidavit of Casper Police Detective Seott Jones supporting the petition was also filed on that date. In his affidavit Detective Jones stated that he interviewed the alleged victim in the presence of her grandmother concerning the incident and that this interview was tape recorded. The affidavit also detailed that the alleged victim had advised Detective Jones that on October 3, 2002, while KC and the victim were attending high school, KC touched her inappropriately, and caused the victim to touch him inappropriately. That same day, KC's counsel filed a joint entry of appearance and motion for discovery. Trial was subsequently scheduled for February 20, 20083.

[14] Just before trial was to commence, and also during the middle of trial, KC's counsel requested relief from the court because the State had failed to produce the taped statement. The court denied this relief because the court found the motion untimely and, based on the State's representation that the tape had been lost, it would be impossible for the court to order its production. The court further ruled that even if the tape were available, it would not be allowed into evidence. -

[15] During trial, the alleged victim's testimony varied only slightly from what Officer Jones had reported the alleged victim originally advised him during the taped interview. Officer Jones was not called to testify during the trial, neither were two other students that reportedly witnessed the incident.

[16] KC intended to call four minor witnesses, all students who had supposedly heard the alleged victim state on two separate occasions that the incident did not happen. KC called witness # 1, and she briefly began to testify she had heard the alleged victim speak about the incident with KC. However, before witness # 1 could finish testifying, it was determined that the alleged victim was required to testify further. While an attempt to locate the alleged victim was being made, witness #1 spoke with witness #2. Thereafter, the court refused to hear the testimony of witness # 1 and witness # 2, ruling that witness #1 had violated the court's oral order regarding witnesses by speaking with witness #2. Later, in explaining this ruling, the court reasoned that the testimony of witness # 1 and witness # 2 would be of no assistance to the court because the court found that the testimony would duplicate that offered by witness #3 and would be of no help to KC. The court further concluded that the testimony would be immaterial to its determination because the victim's statements were made in response to, and in an atmosphere of, intimidation.

[T7] During the trial, witness #3 was allowed to testify that when she confronted the alleged victim and used profane language, the alleged victim denied that she had made any statements about KC. Witness # 4 confirmed that this conversation occurred. Finally, KC testified that he was in the room before the alleged victim and that the incident simply did not occur. KC further indicated that he believed that the alleged victim had made up the incident in order to seek revenge for an apparent altercation that had previously occurred between KC and a friend of the alleged victim.

[T8] Upon conclusion of the trial, the court held that there were insufficient facts to support the immodest, immoral, or indecent liberties allegation, but that the evidence supported the allegation that KC committed an improper sexual touching of the victim. On March 3, 2008, KC filed a Combined Motion for New Trial, Renewed Motion to Dismiss for Failure to Provide Crucial Evidence to the Minor Child, Renewed Motion for Judgment of Acquittal, and Motion for New Trial Based on Court's Refusal to Admit the Testimony of the Minor Child's Witnesses, [witness #1 and witness #2]. This combined motion was apparently denied. On April 21, 2003, KC filed another separate motion for production of the interview tape; this motion was also denied. The court ultimately adjudicated KC a juvenile delinquent. This appeal followed.

STANDARD OF REVIEW

[19] We stated in Cook v. State, 7 P.3d 53, 58-59 (Wyo.2000):

Violations of sequestration orders, and the sanctions therefor, are left to the sound discretion of the trial court, and we will reverse only if that discretion is abused. Madrid v. State, 910 P.2d 1340, 1345 (Wyo.1996). A search for an abuse of discretion calls upon this court "to determine whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious." Vaughn v. State, 962 P.2d 149, 152 (Wyo.1998).

DISCUSSION

Prohibition of Witness Testimony

[110] KC contends that the court abused its discretion when it prohibited two of his proposed witnesses, witness #1 and witness #2, from testifying for violating the court's oral order. KC complains that the court's ruling prohibited him from presenting a full defense and, therefore, resulted in an unfair trial. We agree.

[T11] We addressed a very similar argument in Towner v. State, 685 P.2d 45, 47-49 (Wyo.1984) (footnotes omitted):

The question presented to us is whether the trial court erred in excluding the defense witnesses' testimony due to their apparent violation of the sequestration order. Rule 615, W.R.E., provides for exclusion of witnesses. Under this rule, sequestration of witnesses is a matter of right for either party. The purpose is to prevent the tailoring of evidence to conform to prior testimony and to assist the parties in detecting falsehoods and testimony which is less than candid. United States v. Ell, 718 F.2d 291 (9th Cir.1983); Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); 3 Louisell & Mueller § 370 (1979). Although Rule 615, W.R.E., does not provide for sanctions for violations of the rule, the most often invoked remedies are (1) to hold the witness in contempt; (2) to make the violation a subject for cross-examination and comment; and (8) to disallow the testimony altogether. 83 Louisell & Mueller § 371; 13 Land & Water L.Rev. 909 (1978), "Article VI of the Wyoming Rules of Evidence: Witnesses."
The United States Supreme Court held in Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893):
"If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt, and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground, merely, although the right to exclude under particular cireumstances may be supported as within the sound discretion of the trial court." 14 8.Ct. at 10.
We have previously addressed this question in circumstances where the judge allowed witnesses to testify although they had been in the courtroom in violation of a sequestration order. We affirmed the al-lowanece of that testimony, stating that permitting witnesses to testify was a matter addressed to the discretion of the court and that we would reverse only for gross abuse of that discretion. Whiteley v. State, Wyo., 418 P.2d 164 (1966); Pixley v. State, Wyo., 406 P.2d 662 (1965). We have not, however, addressed the question of the propriety of excluding testimony because of a violation of a sequestration order.
The general rule is that a party who does not know of nor procures the violation should .not be deprived of essential testimony. 88 C.J.S. Trial § 70. However, when a party knows that a witness is violating the rule and allows the violation to continue, he may lose the right to present the witress or to object on those grounds. 23 C.J.S. Criminal Law § 1013.
"A party should not be denied his witness because of misconduct which the party has not caused. 'Refusal to permit a witness to testify in a criminal case on the ground that he had violated the order excluding witnesses is reversible error where neither the state nor the defendant was responsible for the violation of the order and did not know he was present.' Excluding testimony is not an appropriate remedy. Rather, the jury should be instructed on the ecredibility of the witness. If the order is willfully violated, the court may properly hold the witness in contempt of court." (Citations omitted.) State v. Wells, Mont., [202 Mont. 337] 658 P.2d 381 (1983).
Exclusion of the witness' testimony is too grave a sanction where the violation was not intentional and was not procured by the connivance of the party or his counsel. A practical and sensitive accommodation between the defendant's right to present a defense and the trial court's need to control the proceedings must be maintained. Exclusion should be allowed only when it is necessary to preserve the integrity of the fact finding process. State v. Burdge, 295 Or. 1, 664 P.2d 1076 (1983).
United States v. Schaefer, 299 F.2d 625, 631, 14 A.L.R.3d 1 (7th Cir.1962), held that exclusion of testimony was too harsh in situations where the witness did not willfully violate the sequestration order and there was no indiction that the witness was in court with
" 'the consent, connivance, procurement or knowledge of the appellant or his counsel.! . [Dlisqualification of the offending witness absent particular circumstances is too harsh a penalty on the innocent litigant." See also, [United States v. Johnston, 578 F.2d 1352 (10th Cir.1978), cert. denied 439 U.S. 931, 99 S.Ct. 321, 58 L.Ed.2d 325.
Braswell v. Wainwright, 463 F.2d 1148 (5th Cir.1972), found error in excluding testimony because of a sequestration violation on grounds of Sixth Amendment rights and due process, stating that the defendant's right to obtain witnesses in his behalf was violated. Since neither the defendant nor his counsel was involved in the violation, there could not have been a waiver of a constitutional right which would render the exclusion proper. Testimony was considered properly excluded when the court found connivance of the government's counsel and prejudice to the defendant, United States v. Blasco, 702 F.2d 1315 (11th Cir.1983), and where a defendant violated the sequestration order by comparing testimony with another witness. United States v. Torbert, 496 F.2d 154 (9th Cir.1974), cert. denied 419 U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91.
United States v. Gibson, 675 F.2d 825 (6th Cir.1982), cert. denied 459 U.S. 972, 103 S.Ct. 805, 74 L.Ed.2d 285, stated that most authorities agree that the "particular circumstances" of Holder v. United States, supra, sufficient for exclusion are indications that the witness violated the order with the consent, connivance, procurement or knowledge of the party seeking the testimony. This case held there was no abuse of discretion in exeluding testimony because the witness stayed in the courtroom with the knowledge of the defendant and another witness gave substantially identical testimony. Excluding two witnesses for a violation was held not to deprive the defendant of his right to obtain witnesses in his behalf where three other witnesses testified to the same facts and the defendant and his counsel knew of their presence in the courtroom. Calloway v. Blackburn, 612 F.2d 201 (5th Cir.1980).

[112] Here, just as in Towner, there was no evidence presented nor was it claimed that one witness spoke to the other witness with the knowledge or consent of KC or his counsel. In addition, a review of the record discloses that reasonable confusion remained on the part of KC and his counsel regarding the extent of the oral order entered by the court.

[113] When entering the order, the court simply stated:

I'll go ahead and state for the record that we have entered an order of sequestration under Wyoming statute allowing only parents and the alleged victim, the alleged defendant 'and his parents, and counsel present in the courtroom.

Later, KC's counsel somewhat understandably indicated that he believed the order merely excluded the witnesses from the courtroom, as is required in juvenile proceedings in Wyoming, and that the order did not prohibit the witnesses from speaking to one another about what had occurred in court. KC's counsel correctly reminded the court that it had not given any instruction to the parties or their respective counsel to advise their witnesses not to discuss their testimony with others. Moreover, although a sign was posted on the courtroom door explaining that the pending matter was a confidential closed juvenile action, it only indicated that no one was allowed to enter. In fact, the court admitted that it had entered an oral exclusionary order and did not enter a separate sequestration order, but it believed that the purpose of the exelusionary order was also to sequester the witnesses.

[T14] We certainly identify with the court's frustration when faced with the prospect that the confidentiality of the juvenile proceeding had been compromised. We further support the court's concerns that if witnesses are allowed to speak to others about what occurred when they are before a juvenile court, the required sanctity and confidentiality of a juvenile proceeding would be quickly eroded. However, we cannot agree that the appropriate remedy in this instance was the exclusion of the witnesses' testimony. The result of such a sanction was that KC was unable to fully present a defense to the criminal allegations made against him when he played no part in the violation of the court's order. We, therefore, hold that the court abused its discretion by excluding the witnesses as a sanction for violating the court's oral order.

[115] We further do not agree with the court's characterization that the testimony of witness #1 and witness #2 would be of no assistance to the court because the court found the testimony would duplicate that offered by witness # 3 and would be of no help to KC. KC's counsel informed the court during trial that witness #1 and witness #2 were prepared to testify about a separate and distinct incident than that addressed by witness #3. Therefore, it was unreasonable for the court to conclude that the testimony of witness #1 and witness #2 would be cumulative.

[116] The State argues that the court's perspective permitted the court to reasonably conclude that the proposed testimony of witness # 1 and witness # 2, even if accepted as true, would be viewed as having limited, if any, impeachment value. In particular, the State asserts that the alleged victim's later denial of her accusations against KC could also be explained as an effort to avoid an uncomfortable situation, rather than untruth, fulness on the alleged victim's part, given the intimidating and confrontational nature. of witness # 1 and witness # 2 when they interacted with the alleged victim. While the alleged victim clearly testified about the confrontation, we believe it a better practice for the court to elicit testimony from all concerned before making any ultimate conclusions or characterizations, particularly in a criminal action. It appears, moreover, that this procedure would have been particularly appropriate because KC's sole defense was his insistence that the incident simply never occurred. Such a practice is obviously preferred because it allows the court to consider the differing perspectives of the witnesses. Allowing all those concerned to testify further permits the defendant to fully present a defense to the charges levied against him as constitutionally mandated. In addition, a full and complete record may then be developed if this court is later required to address any issues on appeal.

[117] We also are not persuaded by the State's argument that Towner is distinguishable from the instant case because the Town-er matter involved a jury and this action was tried before the court. Obviously the presence of a jury requires the court to consider how the jury might be affected by any court ruling excluding testimony or later explanatory jury instructions, if testimony is allowed. However, - such concerns are nonexistent when a matter is tried before the court. When a matter is presented only to a judge with experience in assessing the credibility of witnesses and weighing of evidence, there would appear no reason not to allow the proffered witnesses to testify and provide the criminal defendant every opportunity to fully present a defense to the allegations asserted.

Non-Production of Investigatory Tape

[T18] KC also argues that his rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and the Sixth and Tenth See-tions of Article 1 of the Wyoming Constitution were violated as a result of the court denying him access to the alleged victim's tape-recorded statement. We do not agree.

[119] As pointed out by the State, the case of Hensley v. State, 2002 WY 96, 111 14-15, 48 P.3d 1099, ¶¶ 14-15 (Wyo.2002), sets forth that when advancing a Brady claim, a defendant is required to establish three things: 1) that the loss or destruction of the evidence occurred because of the calculated, bad faith effort of authorities to deny the defendant exculpatory evidence, rather than through accident or negligence or as a normal course of handling such evidence; 2) the evidence was constitutionally material and its exeulpatory value was apparent to authorities prior to its loss or destruction; and 3) the defendant had no reasonably available alternative means of obtaining comparable evidence or otherwise demonstrating his innocence. See also Young v. State, 849 P.2d 754, 763-64 (Wyo.1993). The record evidences that KC failed to show any of the required elements.

[120] Initially, KC was unable to establish that the investigatory tape was lost or destroyed because of the calculated, bad faith effort of authorities with the intent to deny him the tape. Rather, all that was established was that Detective Jones was unable to locate the investigatory tape for production. Further, while it is true that the alleged victim testified at minor variance with what Officer Jones had reported, KC was unable to establish that this evidence was constitutionally material and that its exculpatory value was apparent to authorities prior to its loss or destruction. Finally, KC had a reasonably available alternative means of obtaining comparable evidence or otherwise demonstrating his innocence. For instance, KC could have subpoenaed Detective Jones and required him to testify.

[T21] KC's solitary defense was his assertion that the events did not occur as averred between the alleged victim and himself. KC chose to testify on his own behalf. Likewise, KC called upon witness #3 and witness #4 to testify and attempted to call witness # 1 and witness # 2. KC could have performed his own investigation, located the other persons who were in the room during the alleged incident, and required their testimony at trial through subpoena. Therefore, it is clear that KC had a reasonably available alternative means of obtaining comparable evidence or otherwise demonstrating his innocence.

[122] Hence, we hold that the court acted properly when it denied KC's requested relief and ruled that the tape would not be allowed into evidence. Further, we agree with the court that KC's requested relief was untimely, as counsel for KC waited until just before trial was to begin to bring this issue to the court's attention. The court appropriately admonished KC's counsel that such important matters should have been formally brought before the court well in advance of the trial date.

CONCLUSION

[123] For the foregoing reasons, we reverse the adjudication of KC as a juvenile delinquent and remand this matter for further proceedings that are consistent with this opinion.

      . Because KC's intended witnesses were all minors and we desire to keep their anonymity, as well as for purposes of clarity in this opinion, we will simply refer to these witnesses by numerical order.

      . The alleged victim testified that both witness # 1 and witness #2 as well as others confronted her about the incident with KC.

      . Although the court questioned numerous witnesses regarding the statements of witness # 1 to witness #2, it was never ascertained if witness #1 discussed her testimony with witness #2 or simply indicated that the alleged victim was needed in order to give further testimony and was not immediately present to do so. Witness # 1 further indicated that she was not aware that she could not speak to anyone about her testimony in court.

      . In hindsight, this case also points out the necessity for a court to give explicit instructions to the parties and their counsel concerning both the exclusionary and sequestration elements that apply to parties, counsel, and witnesses in juvenile proceedings.

      . Our holding concerning the exclusion of witnesses by the court is dispositive; however, because we remand this matter, presumably for new trial, we choose to address this issue..

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Evidence is considered "constitutionally material" only if there is a reasonable probability that, had the evidence been made available to the defendant, the result of the trial would have been different. Relish v. State, 860 P.2d 455, 460 (Wyo.1993).