author: STRUBHAR, Judge: LILE, Vice Presiding Judge: LUMPKIN, J.:

text:
    2004 OK CR 23
    Calvin Lee JOHNSON, Appellant v. STATE of Oklahoma, Appellee.
    No. D-2002-834.
    Court of Criminal Appeals of Oklahoma.
    June 15, 2004.

      James Bowen, Wayne Woodyard, Sapulpa, OK, Attorneys for Appellant at trial.
    Don I. Nelson, Carol Iski, Sapulpa, OK, Attorneys for the State at trial.
    Wayne Woodyard, Sapulpa, OK, Attorney for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Seth S. Branham, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
   OPINION

STRUBHAR, Judge:

¶ 1 Appellant, Calvin Lee Johnson, was convicted of First Degree Murder in the District Court of Creek County, Case No. CF-99-372, after a jury trial held before the Honorable Donald D. Thompson. The State filed a Bill of Particulars alleging three aggravating circumstances: 1) that Appellant had previously been convicted of felonies involving the use or threat of violence; 2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and 3) the existence of a probability that Appellant would commit acts of violence that would constitute a continuing threat to society. The jury found the existence of two of the alleged aggravating circumstances, that Appellant had previously been convicted of felonies involving the use or threat of violence and the existence of a probability that Appellant would constitute a continuing threat to society. The jury assessed punishment at death and the trial court sentenced Appellant accordingly. From this Judgment and Sentence Appellant has perfected his appeal.

FACTS

¶ 2 On October 31, 1999, at approximately 3:10 a.m., Sapulpa Police Officer Jamie Noe responded to a 911 call reporting a homicide. When Noe arrived at the residence from which the call originated, he saw several people standing in the street. One person, Marilyn Howell, seemed particularly upset and agitated. Noe approached Howell and learned that she had discovered the body of the man who had been killed. She directed Noe to the house at 911 West Johnson. Noe and Officer Mark Swafford entered the residence and saw a man, subsequently identified as Russell Milton, on the kitchen floor. He had a large wound to his head and was obviously dead. Noe noted that the victim’s pants pockets were turned inside out and his vehicle outside the house had been vandalized. It was later established that Milton had been shot with a shotgun and .12 gauge wadding was found at the scene of the homicide.

¶ 3 Through their investigation, the police learned that about three weeks before his death Milton received a substantial disability cheek for back pay. It was known throughout the community on “the Hill,” where he lived, that Milton had come into money as he told some people about it and used some of the money to buy a new pickup. Milton was known to carry his money on him, neatly folded in his pants pocket.

¶ 4 When questioned, Marilyn told the police that Appellant might have killed Milton. Appellant was the boyfriend of Marilyn’s sister, Sharon Roberson. Marilyn explained that about two weeks earlier when Appellant and Sharon were at Marilyn’s house the three of them planned to go ask to borrow money from Milton. Appellant said that if he didn’t get money from Milton he was going to “knock him in the head.” Marilyn also said that Appellant had two shotguns which he kept in a shed behind her house. One of them was a sawed-off shotgun Appellant called ‘Shorty.’ Appellant moved the guns out of the shed a few weeks before Milton was killed.

¶ 5 Sapulpa Police Detective Mike Reed first interviewed Appellant around noon on October 31. At this time Appellant denied knowing anything about the homicide. He said the prior evening, he had been over on the Hill working on a vehicle for a relative and then he went to Buford Colony, where his mother lived. Appellant told Reed that later he came back into town, picked up Glenn Pickens and they went to the club and picked up Sharon. He then took Pickens home and he and Sharon went to Sandy Abraham’s house. When they left Abraham’s house they went back to Buford Colony to his mother’s house where they spent the night. They arrived at his mother’s at about 12:30 a.m. Appellant gave this same information when he was interviewed a second time on November 1.

¶ 6 When Appellant was interviewed again on November 19, he talked about ‘Shorty’ and told police that it was a .12 gauge sawed-off shotgun. Wlhen asked where the gun was, Appellant gave several answers. He denied knowing where ‘Shorty’ was, he claimed that ‘Shorty’ had been buried and he said he sold the gun although he later denied this. Appellant also denied knowing that Milton had come into money or killing him.

¶ 7 During Appellant’s final interview with the police on November 21, his account of his knowledge of and activities surrounding Milton’s death changed considerably from the other interviews. During this interview, Appellant acknowledged that he knew Milton had come into some money. He claimed that Sharon planned to either play him out of the money or rob him. Appellant said that he refused to participate in the robbery but offered to do the driving for a cut of the money. He told police that Sharon and a masked man he later learned was Marilyn Howell’s son, Munkin, walked to Milton’s house and went in the front door. Appellant said he watched this from a gray Cutlass he had stolen from the Bartlett hospital. Appellant heard a noise from inside the house. He said that he didn’t know if it was a shot or somebody just hitting the floor. He first said that Munkin came out the back door but then said that they both came out the front door. Appellant said that Sharon put the padlock on the outside of the door and the two walked away from the house. Appellant picked them up, dropped Munkin off at his mother’s house and dropped Sharon off at the Club. At first Appellant said that Sharon got the money but he later said that she had been unable to find the shoebox in which Milton kept the money.

¶ 8 At trial Sharon testified that the week before Russell was killed, she was staying with Appellant. After a fight, she left and spent a week hiding from him and staying with various other people. On Saturday evening, October 30, a friend drove Sharon to Russell’s house so that she could ask for money. His door was locked with a padlock on the outside but his new pickup was there. Although she thought it unusual for Milton to be out after dark, she assumed he was gone because the house was locked and no lights were on. They left and went to a club on the hill where she got into a car with some other friends and they drove to a liquor store. It was between 8:00 and 8:30 p.m. at this time. They drove back to the club and Sharon got out of the car and walked to Sandy Abraham’s house where she stayed for an hour and a half to two hours before she and Sandy walked back to the club. They arrived at about 11:00 to 11:30 p.m. While she was at the club, Appellant’s cousin, Glenn Pickens, came in and told her that Appellant wanted to talk to her. Appellant came in right after that and told her to come with him. She got into the car with him — a tan Lincoln which belonged to his mother — and they drove back to Sandy Abraham’s house. Inside the house, Appellant sold some drugs to Sandy’s cousin, Donald Lee Thomas, Sr. Sharon testified that Appellant was happy and excited' — a little more talkative than usual. They left Sandy’s house at about 1:00 a.m. and went to Appellant’s mother’s house where they smoked crack until 4:00 a.m. The went to bed around 4:30 a.m. and when she woke at about 8:00 a.m., Appellant was gone. Appellant came back shortly thereafter and told her that Russell Milton had been shot and killed. Sharon testified that a couple of days later, Appellant told her that he killed Russell.

PROPOSITIONS

¶ 9 Appellant complains in his first proposition that the evidence presented at trial was insufficient to support his conviction for First Degree Murder. He correctly asserts that the State presented no direct evidence outside of his statements connecting him to the murder of Russell Milton. He alleges that the evidence most heavily relied upon by the State to secure his conviction was the statement he allegedly made to Sharon Roberson that he killed Milton and his statement to the police that Sharon and Munkin killed Milton during a robbery in which he participated by driving the getaway car. He asserts that neither statement is sufficient to support his conviction because his statement to Sharon was uncorroborated and his statement to the police was both uncorroborated and rendered untrustworthy by its inconsistency.

¶ 10 The test to be applied in determining the sufficiency of the evidence is whether, when viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202. Further, the jury is the exclusive judge of the weight and credibility of the evidence and despite conflicts in the evidence, this Court will not disturb the jury’s verdict if there is competent evidence to support it. Smith v. State, 1996 OK CR 50, ¶ 23, 932 P.2d 521, 530, cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997).

¶ 11 Appellant correctly maintains that the State is required to prove beyond a reasonable doubt “every fact necessary to constitute the crime with which [the accused] is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). He further contends that when a statement of an accused is used as sole proof of an element of an offense, corroboration is required. Appellant cites to Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 199, 99 L.Ed. 192 (1954), for its holding that a conviction may not be based solely upon an accused’s extrajudicial uncorroborated confession and all elements of the offense must be established by independent evidence or corroborated admissions. However, the accused in Smith was charged with tax evasion, a crime in which the identity of the accused was inseparable from proving the existence of the crime. The Supreme Court subsequently clarified the application of this ruling to cases such as the one in the present case, where proof of the existence of the crime was entirely separate from proof of the identity of the accused. In Wong Sun v. United States, 371 U.S. 471, 489 n. 15, 83 S.Ct. 407, 418 n. 15, 9 L.Ed.2d 441 (1963) (citations omitted), the Supreme Court held that:

Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it.

¶ 12 This rule was followed by Tenth Circuit Court of Appeals in a first degree murder case where the defendant gave numerous and conflicting confessions. See United States v. Treas-Wilson, 3 F.3d 1406, 1409 (10th Cir.1993), cert. denied, 510 U.S. 1064, 114 S.Ct. 739, 126 L.Ed.2d 702 (1994)(the dead body and manner of death supported the conclusion that the victim’s death was the result of criminal conduct, thereby establishing trustworthiness of the defendant’s confessions). See also United States v. Wiseman, 172 F.3d 1196, 1213 (10th Cir.), cert. denied, 528 U.S. 889, 120 S.Ct. 211, 145 L.Ed.2d 177 (1999)(eourt affirmed two robbery convictions although store employees could not identify the accused who had confessed to the robberies). This federal case law indicates that while, in a case such as this, there must be evidence independent of the accused’s confession to establish the corpus delicti or the fact that a crime occurred and that some person was criminally culpable, it need not show any link, outside the confession, between the crime and the accused who admits to having committed it. Further, the independent facts establishing that Milton was killed and that his death was the result of criminal conduct also provide the requisite trustworthiness of the accused’s confession. Treas-Wilson, 3 F.3d at 1409.

¶ 13 In accordance with this body of law, we find that despite an absence of corroborative evidence identifying him as the killer or a participant in the commission of this crime, Appellant’s statements alone were sufficient to prove that he caused the death of Russell Milton, either with malice aforethought or during the commission of a robbery with a dangerous weapon. We also find that there was independent evidence supporting each of the elements of robbery with a dangerous weapon, the underlying felony to the felony murder alternative. When the evidence is viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Thus, Appellant’s conviction need not be reversed with instructions to dismiss.

¶ 14 Appellant complains in his second proposition that the trial court erred by-failing to sequester the jury three times during the course of the proceedings. The first instance occurred during the first stage of trial after the trial court read the instructions to the jury but before the parties gave their closing arguments. Defense counsel requested that the jury be sequestered and in response, the trial court reprimanded defense counsel for making “petty objections,” overruled the request and recessed for the evening allowing the jurors to go home. While sequestration before submission of the cause is provided for by statute, 22 O.S.2001, § 853, the decision whether or not to sequester the jury prior to the time that the cause is submitted is within the discretion of the trial court. See Collums v. State, 1985 OK CR 20, ¶ 13, 695 P.2d 872, 875. This Court will grant relief on this alleged error only upon the defendant’s showing, by clear and convincing evidence, that the jurors were prejudiced by exposure to specific improper influences by the failure to sequester. See Neill v. State, 1994 OK CR 69, ¶ 32, 896 P.2d 537, 550, cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996). See also Malone v. State, 1994 OK CR 43, ¶ 4, 876 P.2d 707, 711. As Appellant has made no such showing relief is not required.

¶ 15 The third instance occurred when, during second stage after the instructions had been read and the closing arguments made, the trial court allowed the jury to separate for approximately ten minutes before beginning their deliberations. As defense counsel did not object to this separation all but plain error is waived. See Wackerly v. State, 2000 OK CR 15, ¶ 18, 12 P.3d 1, 10, cert. denied, 532 U.S. 1028, 121 S.Ct. 1976, 149 L.Ed.2d 768 (2001). See also Day v. State, 1989 OK CR 83, ¶ 15, 784 P.2d 79, 84; Elliott v. State, 1988 OK CR 81, ¶ 15, 753 P.2d 920, 922. Finding no plain error, this allegation requires no relief.

¶ 16 The second complained of instance occurred when, after first stage instructions had been given and closing arguments had been made, the trial court, over defense objection, allowed the jury to leave the courthouse for a one hour and fifteen minute lunch recess. This allegation of error is compelling and is, as the State concedes, more problematic than the other two. Defense counsel complained at trial and it is argued again on appeal that sequestration was required at this time under title 22 O.S. 2001, § 857. This statute provides:

After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.

¶ 17 This statute, or a comparable version of it, has been on the books in Oklahoma since 1890. It is a well established part of this State’s jurisprudence and even the earliest cases found it to mandate that a jury be kept together between the time the cause is submitted and the verdict returned. See Bilton v. Territory, 1909 OK CR 12, 99 P. 163, 1 Okl.Cr. 566; Sample v. State, 1910 OK CR 31, 106 P. 557, 3 Okl.Cr. 430. For almost a century, this Court’s treatment of this statute has remained consistent, perhaps because neither its language nor its intent is ambiguous.

¶ 18 Under the plain language of section 857, after the jury has heard the charge, they are to remain together for deliberation until a verdict is returned. If they do not decide in court they must immediately retire for deliberations after having been put in the charge of an officer sworn to keep them together and away from outside communications. The only portion of section 857 legitimately subject to interpretation has been the point at which the jury is considex-ed to have heard “the charge.” This issue was addressed in the early case of Evans v. State, 1924 OK CR, 221 P. 794, 26 Okla.Crim. 9, overruled in part on other grounds by Neill v. State, 1994 OK CR 69, 896 P.2d 537. In Evans, after the jury had been instructed and had heard closing arguments, the trial court declined defense counsel’s request for sequestration and allowed the jury to separate and go home for the night. This Court found that the trial court’s decision was error under the statute, holding that “as a matter of law ... the ‘submission of the cause to the jury’ occurs at the close of the argument.” Evans, 221 P. at 796. The Court reasoned:

In principle, we can see little difference between a separation of the jury after hearing the charge and argument of counsel, and a separation after the actual retirement of the jury for deliberation.
The plain purpose and intent of the law is to surround a trial by such safeguards as will exclude all external and improper influence from the jury, and thus protect the right of a defendant to a fair and impartial trial.

Id, at 797.

¶ 19 Both the Court’s holding and its underlying rationale have withstood the test of time. In Page v. State, 1958 OK CR 105, 332 P.2d 693, a case which presented a situation identical to that now before us, the jury was allowed to separate, over defense objection, and go to lunch after all evidence had been presented, the instructions read to the jury and closing arguments made. This Court reversed, finding that the mandates of section 857 had been violated since the case had been submitted to the jury at the close of instructions and arguments and the State had not overcome the presumption of prejudice. Page, 1958 OK CR 105, at ¶¶ 4-5, 332 P.2d at 695-96. Before doing so, it reiterated the importance of “guarding trials by juries from improper influences, and in compelling a vigilant observance of all the provisions of the Criminal Code tending to preserve the purity of such trials.” Id, 1958 OK CR 105, at ¶ 4, 332 P.2d at 695, quoting Evans, 221 P. at 797. While we have not, until now, addressed another factually identical situation, we have not departed from the holding of these early cases. See Mooney v. State, 1999 OK CR 34, ¶63, 990 P.2d 875, 892; McCormick v. State, 1993 OK CR 6, ¶ 35, 845 P.2d 896, 902; Bayliss v. State, 1990 OK CR 51, ¶¶ 3-8, 795 P.2d 1079, 1080-81; Tomlinson v. State, 1976 OK CR 206, ¶ 26, 554 P.2d 798, 803.

¶ 20 Section 857 is an important statutory provision “designed to preserve inviolate the right to, and the purity of jury trials,” see Green v. State, 1957 OK CR 116, ¶ 26, 319 P.2d 321, 328, and we continue to find its language to be mandatory. Queen v. State, 1972 OK CR 110, ¶2, 497 P.2d 441, 442. Thus, when a violation of this statute occurs over defense objection prejudice is presumed and the burden falls to the State to prove otherwise. See Wackerly, 2000 OK CR 15, at ¶ 18, 12 P.3d at 10. See also Mooney, 1999 OK CR 34, at ¶ 63, 990 P.2d at 892; Jackson v. State, 1987 OK CR 168, ¶ 10, 741 P.2d 875, 876; Ford v. State, 1958 OK CR 82, ¶ 4, 330 P.2d 214, 216.

¶21 The State attempts to overcome the presumption of prejudice by pointing to the admonishments given the jury by the trial court during the course of the trial. The State asserts that this Court can find these admonishments sufficient to overcome the presumption of prejudice as it did in Jackson, 1987 OK CR 168, at ¶ 11, 741 P.2d at 876, where it was found “significant that the trial court sternly admonished the jury as to the seriousness and importance of their duty before allowing them to separate.” The Jackson Court further noted that the trial judge admonished the jury nine times not to discuss the ease with anyone. Id. Appellant responds that the Jackson case is an aberration as it deviated from previously established jurisprudence of this Court and has not been cited for this proposition in any of this Court’s subsequent published cases dealing with this issue. Appellant is correct. The State’s argument is unpersuasive as the admonishments made by the trial court to the jury during the course of the trial and especially the minimal admonishment made before the jury was improperly allowed to separate cannot be found to overcome the presumption of prejudice caused by the trial court’s failure to sequester the jury.

¶ 22 The State also argues that should this Court find that it failed to overcome the presumption of prejudice, the case should be remanded to the district court for an eviden-tiary hearing to investigate this issue under Rule 3.11(A), Rules of the Court of Criminal Appeals, Title 22, Ch.18, App. (2003). While this Court has never before remanded for an evidentiary hearing in a situation such as the one in the present case, the State directs our attention to cases in which we have done so on other issues. The State’s request is not accompanied by supporting affidavits nor has it indicated that the questioning of every juror is possible or even that each of the jurors is still alive and can be located. The State has provided neither sufficient information supporting its request nor adequate reason why this case should be treated differently than the like eases which have preceded it.

¶ 23 Finally, pursuant to discussion at oral argument, we address the argument that this Court should reject the significant body of established law regarding section 857 and find that the jury is not required to be sequestered after hearing the charge but rather after the bailiff has been sworn to keep them together. Such argument is unpersuasive as it neither follows the plain language of the statute nor serves its intent. After the jury has heard the evidence, instructions and argument they have been provided all the tools they need to decide the case. Once the jury has heard the charge, under the dictates of section 857, it becomes imperative that they remain together away from outside communications and influences. The requirement that the bailiff be sworn to keep the jurors together is not the event which triggers the need for sequestration but rather is part of the procedure mandated to insure that the substantive requirements of the statute are followed. Thus, the fact that the bailiff in the present case was not immediately sworn to keep the jury together after they had heard the charge does not eliminate the error but rather compounds it.

¶24 While 22 O.S.2001, § 857 may, at times, place a burden on the trial courts, it is a burden which has been skillfully managed by the trial judges of this state for over a hundred years. As noted above, the statutory requirement of sequestering jurors after they have heard the charge serves the vital purpose of protecting the purity of jury trials in return for the additional resources it sometimes requires and we will not alter a century of sound law in the interest of judicial economy. Unfortunately, the trial court in this case abused its discretion in failing to grant defense counsel’s request for sequestration and the State has failed to overcome the resulting presumption of prejudice. This e1Tor requires reversal.

¶ 25 Error complained of in proposition seven merits brief comment so that it may be avoided on retrial. In this proposition, Appellant argues that the prosecutor misstated the law by telling the jury that prison population is not ‘society.’ This comment was met with timely objection which the trial court improperly overruled. It is well established that for purposes of continuing threat, the word ‘society’ encompasses society in general, inside and outside of prison, and to tell the jury otherwise is error. See McElmurry v. State, 2002 OK CR 40, ¶ 149, 60 P.3d 4, 34. See also McCarty v. State, 1998 OK CR 61, ¶ 92, 977 P.2d 1116, 1137, cert. denied, 528 U.S. 1009, 120 S.Ct. 509, 145 L.Ed.2d 394 (1999)(the term “society” refers to society as a whole).

¶26 The Judgment and Sentence of the trial court is REVERSED and REMANDED to the district court for a NEW TRIAL.

JOHNSON, P.J. and CHAPEL, J.: concur.

LUMPKIN, J.: concur in part/dissent in part.

LILE, V.P.J.: dissent.

LILE, Vice Presiding Judge:

Dissents.

¶ 1 This jury was allowed to separate following the court’s instructions and prior to closing arguments in the guilt stage, over the objection of the defendant. The trial court’s determination on sequestration at that point is entirely discretionary under 22 O.S.2001, § 853. No facts are asserted to establish that this failure to sequester was an abuse of discretion. There is no claim that anything improper occurred to influence the jury. There is no claim that this is the type of case where public feehng or news coverage would require sequestration.

¶ 2 The jury was again allowed to separate after instructions and after closing arguments in the punishment stage. No one objected. We have repeatedly held that under these circumstances any error is waived. Wackerly v. State, 2000 OK CR 15, 12 P.3d 1, ceit. denied, 532 U.S. 1028, 121 S.Ct. 1976, 149 L.Ed.2d 768 (2001). Again, there is no claim that anything improper happened with the jury. There is no claim that any prejudice arose from these separations.

¶ 3 In the course of a trial, the jury will be allowed to separate many times. These common rest breaks during the day, night recesses and other separations are preceded by repeated admonishments to the jury not to discuss the case among themselves or with others. The admonishments work successfully in thousands of trials. Only very rarely are these admonishments inadequate. Only very rarely does something happen to breach the sanctity of the jury.

¶ 4 In this particular case, there is not even an allegation that anything improper happened and certainly no evidence that the jury was subjected to any improper influence. So, why must this case be retried; why does the Court require such a drastic remedy when nothing went wrong with the trial.

¶ 5 The trial court allowed the jury to go eat lunch after first stage closing argument and before being sequestered for deliberations. No one asserts that there were any improper influences upon the jury. Admonishments which worked throughout the trial are suddenly deemed inadequate to protect the jury during lunch and a later identical separation is no problem for this Court. There is no sound reason for this reversal. It is upon the most technical of grounds and ordered in the absence of even a hint of any prejudice. Any error here lies not with the trial court but with this Court.

LUMPKIN, J.:

Concur in part/dissent in part.

¶ 1 I agree that if the Court applies our prior decisions without asking the underlying question regarding what is the purpose of the provisions of 22 O.S.2001, § 857, then stare decisis would dictate the result reached in this case. However, I would like to submit a deeper analysis of the statutory language in conjunction with the realities of the trial of a criminal case in the District Court of Oklahoma, and propose a more supportable statutory interpretation.

¶ 2 First, we must recognize the question presented is not one of constitutional magnitude, either federal or state. It is the proper application of a state statute. In fact, it is a common practice in federal and other state jurisdictions for jurors to be allowed to separate even during the course of deliberations. See U.S. v. Eldred, 588 F.2d 746, 752 (9th Cir.1978); U.S. v. Phillips, 540 F.2d 319, 332 (8th Cir.1976); U.S. v. Palacio, 477 F.2d 560, 561 (5th Cir.1973); People v. Austin, 185 Colo. 229, 523 P.2d 989, 993 (1974); State v. Bynum, 282 N.C. 552, 193 S.E.2d 725, 729 (1973); State v. Atwood, 83 N.M. 416, 492 P.2d 1279, 1284 (N.M.App.1971); Bryant v. State, 246 Ind. 17, 202 N.E.2d 161, 163-64 (1964); People v. Nick, 360 Mich. 219, 103 N.W.2d 435, 437-38 (1960).

¶ 3 Second, as a matter of law, we presume jurors follow the instructions given to them during the course of the trial. Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993), United States v. Carter, 973 F.2d 1509, 1513 (10th.Cir.1992), cert. denied, 507 U.S. 922, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993); Turrentine v. State, 965 P.2d 955, 968 (Okl.Cr.), cert. denied, 525 U.S. 1057, 119 S.Ct. 624, 142 L.Ed.2d 562 (1998), Jones v. State, 764 P.2d 914, 917 (Okl.Cr.1988).

¶ 4 As the opinion points out, the trial judge in this case repeatedly admonished the jurors not to discuss the case, consider matters other than evidence presented in the courtroom, and not to begin deliberations until the case was finally submitted to them. More importantly, Instruction No. 37, the final instruction in the guilt stage written jury instructions, directed the jurors as follows:

After you have retired to consider your verdict, select one of your number as foreperson and enter upon your deliberations. When you have agreed on a verdict, your foreperson alone will sign it, and you will, as a body, return it in open court. Your verdict must be unanimous. Forms of verdict will be furnished. You will now listen to the argument of counsel which is a proper part of this trial.

¶ 5 This is Oklahoma Uniform Jury Instruction-Criminal 10-10, General Closing Charge — Closing Instruction. In 1958, when Page v. State, 332 P.2d 693 (Okl.Cr.1958) was decided, judges did not have the benefit of these uniform instructions. In fact, it was not until 1981 that the first uniform instructions were adopted. Prior to that time there was no uniformity. Why does that make a difference as we address the issues presented in this case? Today, every juror in a criminal case in Oklahoma knows that deliberations are not to commence until they have been removed to the jury room and selected their foreperson. The sole purpose of Section 857 is to ensure the sanctity of the deliberations of the jury. If, by the instructions given by the Court, those deliberations cannot begin until they have retired and selected a foreperson, then there can be no prejudice.

¶ 6 Third, anyone who has ever tried a criminal case realizes there is a certain sequence of events at the conclusion of the trial whereby the jury is committed into the custody of the bailiff to ensure the provisions of Section 857 are enforced. When the case is to be finally submitted to the jury for deliberation, the bailiff is brought forward and the judge administers an oath, an acknowledgment of which places the jury into the bailiffs custody for movement to the jury room to begin their work. It is clear to everyone by this procedure when the deliberations begin. However, it is not uncommon in the courtrooms of this state, prior to the bailiff taking the oath, for judges to allow restroom breaks, and time for Court reporters to ensure all the exhibits admitted into evidence are delivered to the jury room and time for other necessary administrative matters to be addressed. These are the realities of the everyday life of trials in the District Courts of Oklahoma. And, that is what was done in this case. Prior to the administration of the oath to the bailiff (Tr. Pg.1401), the jury was released to go to lunch, reminded of the prior admonitions, and advised the case would be submitted to them at 1:30 p.m. and they would be allowed to deliberate at that time. When they returned from lunch, the bailiff was sworn and the jury retired to begin deliberations.

¶ 7 I believe our statutes should be applied with a pragmatic understanding of how the trial courts must operate and a view toward what the statute is actually seeking to protect. Needless to say, today no one would expect a jury to reach a decision in the jury box, yet the statute says they can. If a judge tried to get them to come to a verdict in open court, this Court would certainly chastise the judge. Therefore, we all should be able to agree some common sense must be applied in the interpretation of these procedures.

¶ 8 Due to the fact the Uniform Jury Instructions, approved and adopted by this Court, now provide a uniform direction to juries throughout this state as to when the deliberative process begins, I submit the arbitrary and impractical time alluded to in Page, etal., should be overruled. Instead, this Court should recognize the actual practice in the District Courts of Oklahoma and hold that the provisions of Section 857 apply upon the bailiff taking the oath and the trial judge remanding the jury to the custody of the bailiff to commence their deliberations in the ease. This fulfills both the legislative intent and preserves the sanctity of the jury deliberations. Applying this more tenable interpretation, and one that will not only be accepted but respected by lawyers and lay persons alike, I would find no prejudice has been shown and affirm the judgment and sentence in this case. For these reasons,' I respectfully dissent to the Court’s decision to reverse and remand this case for a new trial.

      . 21 O.S.1991, § 701.12(1).

      . 21 O.S.1991, § 701.12(5).

      .21 O.S.1991, § 701.12(7).

      . Appellant's Petition-in-Error was filed in this Court on August 29, 2002. His Brief-in-Chief was filed on July 28, 2003, and the State's Response Brief was filed on November 25, 2003. Appellant’s Reply Brief was filed on December 15, 2003. The case was submitted to this Court on December 4, 2003, and oral argument was heard on March 30, 2004.

      . Appellant's gun, 'Shorty,' was never recovered nor was any gun identified as the murder weapon in this case.

      . The blue ski mask Appellant claimed was used in the robbeiy was later recovered from the tan Lincoln that he drove.

      . This statement was later proven false as the car stolen from Bartlett Hospital had actually been recovered by the police and was in the custody of the police at the time that the homicide occurred.

      . The house was padlocked on the outside when Milton’s body was discovered.

      . Sandy Abraham testified that while Appellant and Sharon were talking to each other at his house Appellant pulled out a stack of neatly folded bills which was about one to one and a half inches thick.

      . In Van White v. State, 1999 OK CR 10, ¶ 25, 990 P.2d 253, 263-64, this Court remanded the case to the district court for an evidentiary hearing to determine whether the prosecutor had a race-neutral reason for excusing a black juror and in Young v. State, 2000 OK CR 17, ¶¶ 104-05, 12 P.3d 20, 47, cert. denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001), this Court remanded the case to the district court for an evidentiary hearing to determine whether some of the jurors had used a Bible during deliberations.

      . In fact, there are a total of forty-four (44) states that follow this majority view. While Oklahoma is one of only six (6) states that adhere to the minority position that does not allow separation during deliberations, I acknowledge this has no impact on the language of Section 857, however, it should at least bring into question the application of presumed prejudice upon violation of the statute.

      . See 12 O.S.Supp.1968, § 577.1 (authorizes Court of Criminal Appeals to adopt uniform jury instructions.)


source: Caselaw Access Project

author: CAROL M. HANSEN, Judge.

license: Public Domain

text:
    2004 OK CIV APP 53
    Floyd TWYMAN, Joyce Twyman, and Alan Twyman, Plaintiffs/Appellees/Counter-Appellants, v. The GHK CORPORATION, Mobil Oil Corporation, and Does I-V, Defendants/Third-Party Plaintiffs/Appellants Counter-Appellees, v. Schlumberger Technology Corporation and Baker Hughes Companies, Inc. d/b/a Baker Atlas, Third-Party Defendants.
    Nos. 98,426, 98,434, 98,445.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Jan. 23, 2004.
    Rehearing Denied March 26, 2004.
    Certiorari Denied June 7, 2004.

      Arthur W. Schmidt, Stephen M. Morris, Deena R. Tyler, Mahaffey & Gore, P.C., Oklahoma City, OK, for The GHK Corporation.
    Gary W. Davis, Harvey D. Ellis, L. Mark Walker, Crowe & Dunlevy, Oklahoma City, OK, for Mobil Oil Corporation.
    Patricia A. Kirch, Ardmore, David P. Hart-well, Oklahoma City, Cregg Webb, Shawnee, Scott McCardle, Edmond, OK, for Floyd Twyman, Joyce Twyman, and Alan Twyman.
   Opinion by

CAROL M. HANSEN, Judge.

¶ 1 In this action alleging “toxic contamination” of the Plaintiffs’ Twyman dairy farm by oilfield operations under the control of Appellants/Counter-Appellees, GHK Corporation (GHK) and Mobil Oil Corporation (Mobil), GHK and Mobil appeal from trial court judgment in favor of Appellees/Coun-ter-Appellants Floyd, Joyce and Alan Twy-man (hereafter collectively Twymans). Twy-mans counter-appeal from the trial court’s order granting remittitur of the jury’s award.

¶ 2 GHK and Mobil conducted oilfield operations on and adjacent to Twymans’ property, on which Twymans operated a dairy farm with approximately 170 cows. Beginning in 1995, some of Twymans’ cows experienced health problems and some of those died. They made efforts to determine the cause of the problems, but when the problems continued, Twymans disposed of the remainder of the herd.

¶ 3 Then, in 1998, Twymans filed suit against GHK and Mobil, claiming pollutants migrated from their oilfield “reserve pits”, located on adjoining land, and contaminated the Twyman farm’s water well. Twymans further alleged this contamination caused them to lose their dairy herd and rendered their entire farm worthless. Twymans sued for negligence, nuisance and deceit.

¶ 4 The case was tried to a jury. Because of the nature of the claims, the parties introduced testimony of a number of expert witnesses on the question of causation. That evidence was and remains the central issue in this case. The jury returned a general verdict damage award for plaintiffs in the amount of $7,250,000.00 on the claims of negligence and nuisance. No punitive damages were awarded. The jury apportioned negligence liability between GHK and Mobil at 19% and 81%, respectively. The jury found in favor of GHK and Mobil on the deceit claim and on Twymans’ negligence claim of damages from a radioactive “logging tool” which allegedly had been lost in a drilling hole during oilfield operations.

¶ 5 GHK and Mobil moved, alternatively, for judgment notwithstanding the verdict, new trial, or remittitur of actual damages to $250,000.00. The trial court’s order on the alternative motions sets forth the court’s rationale as to each motion in some detail. The trial court denied the motions for judgment notwithstanding the verdict and for new trial, finding that while Twymans’ “case on liability hung by a thread”, they “put on sufficient evidence of causation for the case to go to the jury.”

¶ 6 The trial court did, however, order remittitur of actual damages to $950,000.00. In doing so, the court found the award of $7,250,000.00 was “undoubtedly outrageous, and beyond all measure unreasonable”, and that the “award manifestly shows it was actuated by passion, prejudice, or partiality.” The court further found, “giving [Twymans] every benefit of the doubt”, the maximum damages to the land was $250,000.00, Twy-mans’ own estimate, and the maximum value for the loss of the entire dairy herd was $200,000.00. Recognizing the award for nuisance was the “wild card” as far as determining damages, the trial court found $500,000.00 was a reasonable award.

¶ 7 The parties now appeal from the trial court’s order on the post-judgment motions and the underlying judgment. GHK and Mobil, in separate but substantively similar briefs, first argue they were entitled to judgment notwithstanding the verdict because the trial court erred in admitting expert scientific testimony on causation which failed to meet the reliability standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)(hereafter DaubeH). Daubert was adopted for application in Oklahoma state court civil actions by Christian v. Gray, 2003 OK 10, 65 P.3d 591 (hereafter Christian ).

¶8 While the crux of the arguments by GHK and Mobil is that the lack of reliable and admissible expert evidence results in a fatal deficiency of evidence to prove their oilfield activities caused Twymans’ injuries, a threshold question is what evidentiary rule applies. Twymans assert the Daubert standards should not be applied here because trial was concluded in 2002, before Christian adopted Daubert for use in Oklahoma civil actions. We find Daubert should be applied retrospectively.

¶ 9 Christian does not address either prospective or retrospective application of Daubert, nor have our appellate courts subsequently decided that question. We then look to our sister courts for guidance. The Louisiana Court of Appeals determined DaubeH should be applied retroactively in Young v. Logue, 660 So.2d 32 (La.Ct.App. 4th Cir.1995), a case with facts very similar to those here. Louisiana’s basic rule of evidence respecting expert testimony tracks Federal Rule of Evidence 702, as does ours — 12 O.S. 2001 § 2702 (hereafter § 2702).

¶ 10 Louisiana adopted Daubert in State v. Foret, 628 So.2d 1116 (La.1993). Daubert was decided before the trial in Young, Foret was decided after. As noted above, that is the same sequence as here, except here it was Christian which was decided after trial. The Young Court held Daubert must nonetheless be applied retroactively because Daubert and Foret announce a 'procedural rule of law. The Christian Court likewise found whether Daubert applied to civil actions was a new procedural question. Christian, 65 P.3d at 596, note 4.

¶ 11 The one distinction in Young and the case before us is that Louisiana statutorily provides that “[pjrocedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” La.C.C. art. 6. This distinction does not, however, distinguish Young for persuasive effect because Oklahoma has, by common law, adopted a similar rule.

¶ 12 In Cox v. Brockway, Inc. (N.Y.), 1985 OK 80, 708 P.2d 1085, the Oklahoma Supreme Court approved retroactive application of a federal statute of limitation determined controlling by the United States Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In the absence of an express statutory limitation period applicable to “section 301(a) of the Labor Management Relations Act”, the DelCostello Court adopted an analogous limitation period from “section 10(b) of the National Labor Relations Act.” The DelCostello Court retroactively applied the limitation period to the cases before it.

¶ 13 The Court in Cox, at 1088, noted that “whether and to what extent a new rule shall be given retroactive effect is [a question] of judicial policy”, and that “retroactive application of a newly announced rule is the traditional common law approach, rather than the exception.” The Court further noted that in considering arguments against retroactive application, the court should consider (a) the novelty of the rule, (b) the purpose of the rule and whether it will be furthered by retroactive application, and (c) possible inequities from retroactive application.

¶ 14 As to novelty, adoption of the Daubert standards in Christian was not, as expressed in Cox, a “bolt out of the blue.” Daubert was decided almost ten years before trial here and its possible adoption in the various states has been discussed widely during that period. The Oklahoma Court of Criminal Appeals, considering the same evidentiary statutes now before us, mandated use of Daubert for novel scientific evidence in state court criminal matters in 1995, and has reexamined its holding in a number of cases. In Cities Service Co. v. Gulf Oil Corp., 1999 OK 14, 980 P.2d 116, the Oklahoma Supreme Court, although not adopting Daubert standards, cited Daubert positively by footnote for the responsibility of trial courts as “the ‘gatekeeper’ of the evidentiary process to screen evidence, i.e., to determine its relevance and reliability.”

¶ 15 In Christian, the court noted:

... a trial judge’s decision to prevent improper testimony from an expert witness is not new to our jurisprudence, (citation omitted) Our Evidence Code currently recognizes the gatekeeping capacity of a trial judge, and Daubert is but a refinement of this role. Christian, at 598.
Nothing in Daubert or Kumho conflicts with our Evidence Code. Christian, at 600.

¶ 16 In Daubert, the Court observed that the previously used “general-acceptance” test for admissibility of novel scientific evidence, set forth in Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013 (1923), had been displaced by the Federal Rules of Evidence. Christian, 65 P.3d at 597. The purpose of Daubert was to establish a framework in which the trial courts could, under the Federal Rules of Evidence, “ensure that any and all scientific testimony or evidence admitted is not only relevant, but must be ‘scientific’ and reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786.

¶ 17 In Christian, at 612, the Oklahoma Supreme Court determined Daubert would be the evidentiary standard in the matter before it and remanded it to the trial court to allow the parties to present evidence in support of and in opposition to the reliability of the offered expert evidence. As the Court noted in Cox v. Brockway, Inc. (N.Y.), 708 P.2d at 1088, referring to the DelCostello Court, “implicit in the Court’s application of the rule to the cases before it for decision [is] that this purpose is furthered by retroactive application.” The need for scientifically reliable expert evidence in accordance with § 2702 justifies retroactive application of Daubert and Christian here.

¶ 18 We do not believe inequities will result from retroactive application of Daubert and Christian. GHK and Mobil argued applicability of Daubert at all appropriate stages in the trial court. Twymans argued for the Frye standard, but addressed Dau-bert and the related evidence in support of its expert witnesses meeting the Daubert standards. In fact, because the trial court did not specify what standard it used in ruling on the admissibility of Twymans’ experts, we cannot be certain the trial court did not apply Daubert.

¶ 19 Further, as to possible inequities, the Frye general acceptance standard, which Twymans asserted to be applicable, has been found to be less “flexible” than the standards set in Daubert. See, Taylor v. State, 889 P.2d at 329. Under Frye, “novel” scientific evidence could be admitted only if the uncommon procedure or theory about which the expert planned to testify was “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Id., at 327. General acceptance is only one of the indicia of reliability under Daubert, none of which are deemed definitive. Lastly, as to this point, Twymans have not shown here how the contested expert testimony would satisfy the Frye general acceptance test, if that is the evidentiary standard which they still propound.

¶ 20 The Oklahoma Court of Criminal Appeals, in Romano v. State, 1995 OK CR 74, 909 P.2d 92, declined to retroactively apply Daubert “to scientific subjects previously accepted as valid for expert testimony.” Also see, e.g., Hanson v. State, 2003 OK CR 12, 72 P.3d 40. However, that Court determined in Taylor v. State, 889 P.2d at 329, it would adopt Daubert for novel scientific evidence. Christian, 65 P.3d at 599. Scientific subjects previously accepted as valid would not be novel, therefore, there would be no need for Daubert scrutiny. The Court of Criminal Appeals has not decided if it would apply Daubert retroactively to novel scientific evidence. Additionally, there is no showing the controverted evidence here was previously accepted as valid.

¶ 21 Having found Daubert to be applicable, we must determine if the expert testimony in controversy satisfies its dictates. Expert evidence was necessary to assist the trier of fact here. The central issue was whether Twymans’ alleged losses resulted from contamination of their water well by oilfield operations under the control of GHK and Mobil. The determination can be made only through data derived from several disparate scientific disciplines and is beyond the ability of the average juror without the aid of those knowledgeable in those disciplines. The Christian Court, 65 P.3d at 601, citing Matchen v. McGahey, 1969 OK 48, 455 P.2d 52, held:

When an injury is of a nature requiring a skilled and professional person to determine cause and the extent thereof, the scientific question presented must necessarily be determined by testimony of skilled and professional persons.

¶ 22 Finding expert evidence necessary, we must decide if the trial court acted properly here in allowing the jury to consider such evidence in reaching its verdict. We have set out above some of the legal parameters the U.S. Supreme Court established in Daubert. In Christian, the Oklahoma Supreme Court examined those Daubert parameters at length and restated some of the more prominent pronouncements for guidance.

¶ 23 The Christian Court, at 597, quoting Daubert, noted that “[i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.” The Court provided this list of factors from Daubert, 509 U.S. at 593-594, 113 S.Ct. 2786 for trial courts to consider when determining admissibility:

1. Can the theory or technique be, or has it been, tested;
2. Has the theory or technique been subjected to peer review and publication;
3. Is there a “known or potential rate of error ... and the existence and maintenance of standards controlling the technique’s operation”; and
4. Is there widespread acceptance of the theory or technique within the relevant scientific community.

¶24 Christian, 65 P.3d at 598, further noted the trial court’s Daubert inquiry is a flexible one, focusing on evidentiary relevance and reliability underlying the proposed submission and not on the conclusions they generate. The trial court’s inquiry:

... entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Daubert, 509 U.S. at 592-593,113 S.Ct. 2786.

¶ 25 Generally, the burden of showing evidence is admissible is on the party offering it. Christian, at 603, citing 'Wofford v. Lewis, 1962 OK 265, 377 P.2d 37. More specifically, the proponent of expert scientific testimony must satisfy the test for admissibility, i.e., “must prove by a preponderance of the evidence that the testimony is reliable.” Christian, 65 P.3d at 603, quoting Moore v. Ashland Chem., Inc., 151 F.3d 269 (5th Cir.1998).

¶ 26 In reviewing a decision on the admissibility of expert evidence, we will apply the clear abuse of discretion standard. Christian, at 608. “In order to determine whether there was an abuse of discretion, a review of the facts and the law is essential.” Id., quoting Board of Regents of University of Oklahoma v. National Collegiate Athletic Association, 1977 OK 17, 561 P.2d 499. “An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.” Christian, 65 P.3d at 608. In either ease, the question is one of law and will be reviewed de novo. Id.

¶ 27 Twymans utilized a number of expert scientific witnesses in attempting to prove their allegations that pollutants from oilfield operations controlled by GHK and Mobil caused their losses. Their general assertion was that heavy metals, hydrocarbons and radioactive materials migrated, from a well site on adjoining property, through geological subsurface fractures, and polluted their well. They further asserted the polluted water caused the health problems of their dairy cows, which eventually resulted in the loss of their dairy business.

¶ 28 GHK and Mobil do not concede their actions resulted in contamination of Twymans’ well, nor that the well was contaminated at all, but rely primarily on their argument that Twymans’ evidence as to proximate causation was fatally unreliable. We agree. While GHK and Mobil contest the entire evidentiary trail from well site to the cows’ demise, we need only look to the evidence Twymans relied on to prove the well water was the cause of the cows’ illness. Because this latter evidence was scientifically unreliable, and thus inadmissible under Dau- bert, Twymans failed to prove the requisite element of proximate causation.

¶29 Twymans’ experts, relating to the question of how the well water may have affected their cows, were Howard Zent (Dr. Zent) and Norbert Page (Dr. Page), both veterinary doctors. Both opined Twymans’ cows became sick because of the combined effects of components in the well water. Dr. Zent additionally testified that manganese in the water could have been responsible for the cows’ illnesses. For the following reasons we find these theories without sufficient scientific basis to be reliable and therefore, in accordance with Daubert and Christian, should not have been presented to the jury.

¶ 30 Dr. Zent testified on cross-examination, “Well, we knew we didn’t have anything above safe drinking water levels, so we felt it was a combination effect possibly, yes.” The extended theory was that this combined effect of otherwise safe levels of heavy metals was toxic to the bacteria in the cows’ digestive system, leading the cows to lose weight and develop other problems. Dr. Zent acknowledged heavy metals naturally exist in ground water and that low levels of these heavy metals do not equate to pollution.

¶ 31 Dr. Zent further acknowledged this particular theory of synergistic effect was developed in this case by “everyone working on this investigation.” He stated it was not his theory and that he could not attribute it to any individual. Dr. Zent could not identify the specific heavy metals which he contended combined to have toxic effect, and conceded he was not trained in toxicity of heavy metals.

¶ 32 While not determinative, we look to the Daubert factors adopted by the Christian Court to consider when assessing scientific reliability. Dr. Zent was not aware of any scientific literature that supported the synergism theory with respect to the components involved and the effect on animals, and was also not aware of anyone else advancing such a theory. There is no evidence this theory has been tested in any manner, nor does there appear to be any reason why it could not have been tested. There has been no peer review outside the body of Twymans’ own experts. In that it is an entirely new theory, it obviously does not have general or widespread acceptance in the relevant scientific community.

¶ 33 Dr. Zent, who had been brought in by Twymans after their regular treating veterinarian could not determine the cause of the cows’ problems, reached the conclusion that the cows’ illness was caused by the combined effect of the well water’s components by differential diagnoses, that is, by ruling out the likely causes “until the most probable one is isolated.” Christian, 65 P.3d at 604. To rule out “dairy management”, which Dr. Zent conceded was “the first thing you look at”, he in turn sought the assistance of Dr. Dan Waldner, a Dairy Extension Specialist from Oklahoma State University, and an acknowledged dairy management expert.

¶ 34 Dr. Waldner visited Twymans’ farm and provided them a written report concluding, among other things, that their feeding regimen was improper and could be causing the weight loss exhibited as the primary symptom by their cows. Dr. Zent admitted, however, he never saw the actual report until it was provided to him by GHK and Mobil during preparation for trial. He had relied on Twymans’ oral representations that the report was positive. Thus, although he later said he disagreed with Dr. Waldner’s conclusions, Dr. Zent did not have the benefit of the expert advice he had himself sought when formulating his theory. He failed to consider another possible cause for the cows’ health problem when proceeding through the differential diagnosis. His diagnostic methodology was, therefore, at best, suspect.

¶ 35 Christian, at 605, citing Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th Cir.2002), states:

... where differential diagnosis is used to show specific causation the party has also provided “independently reliable evidence that the allegedly dangerous drug or substance had harmful effects”, i.e. general causation was also shown.

¶36 Similarly, Christian, 65 P.3d at 607, holds that:

if expert testimony is necessary to show cause of an injury from exposure to a toxin, the testimony of the expert should reveal a reliable method for determining the quantity of the toxin necessary to cause injuries of the type experienced by plaintiff (general causation), unless plaintiff can show that the circumstances are such that general causation should not be necessary.

¶ 37 Dr. Zent provided no evidence as to how much of the purportedly polluted well water, or how much of the constituent elements of the combined heavy metals, would be required to cause the illness Twymans contend their cows suffered. There is no independently reliable evidence that the well water was harmful. Further, Twymans failed to show the circumstances did not require a showing of general causation. “An expert’s opinion on causation must be more than ipse dixit.” Christian, at 607. The reliability of the method is not shown merely because the expert states that causation exists. Id.

¶ 38 Dr. Page’s testimony by deposition was equally unsupportive of scientific reliability as to the synergism theory. Dr. Page also had expertise in radiation toxicology and included radioactivity in putting forth his theory of synergistic or combined effect. He was retained in 2000, after the herd was disposed of, and never visited Twymans’ farm. He formulated his opinion on the records provided by Twymans.

¶ 39 Dr. Page testified he believed the affected cows “had a background instance of bovine leukemia virus.” This condition is common in dairy herds at the “subclinical” stage, that is, “not actually a medical problem at the time.” Dr. Page further testified he believed “something” caused the condition to become clinical as the result of immune system “suppression”. On direct, he replied, “radiation is one possibility’, but that it was “difficult to say if and how much radiation was present in the water that the cattle drank.”

¶ 40 Dr. Page noted there were no analy-ses of the well water in 1996-97 that had any measurements for radiation. He went on to note the analyses he had seen were performed in 2000 or early 2001. Dr. Page concluded, “[s]o it’s pure speculation as to what was present in the water that the cattle consumed in 1996 and 1997.” Even' when asked to assume the constituent levels were the same in 1996 and 1997 as in 2000, he could only state “I think it’s highly possible that there were enough of the three types of pollutants (radiation, hydrocarbons and heavy metals) to have caused some immune suppression.”

¶ 41 In Daubert, on remand, the Ninth Circuit Court of Appeals held the trial court properly rejected “epidemiological evidence .. that Benedectin could possibly have caused plaintiffs’ injuries.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1322 (9th Cir.l995)(Emphasis added). The Ninth Circuit Court of Appeals found the evidence lacking because it proffered a possibility rather than a probability. Id. In a similar holding, our Court of Civil Appeals has noted, “Speculation is the antithesis of proximate cause.” Butler v. Oklahoma City Public School System, 1994 OK CIV APP 22, 871 P.2d 444. In Dr. Page’s theory, we have the uncertainty of possible causation based on the uncertainty of an unproven assumption. In the absence of some independently reliable evidence that the well water caused the harm, Dr. Page’s opinion falls short of Dau-bert’s admissibility standards.

¶ 42 Dr. Page’s scientific evaluation additionally suffered from the same shortcoming as Dr. Zent in that he also failed to consider the alternative explanation for the cattle’s illness set forth in Dr. Waldner’s report on herd management. Dr. Page testified he had not seen the report, only a reference to it, and it was his “understanding that [Dr. Waldner] really didn’t find any really poor management practices.” Dr. Page acknowledged that if the report was not positive, “it would have to be a factor to consider along with the other information.”

¶ 43 Dr. Page, who did not do independent research or testing of his synergistic theory, relied on “information ... derived from other animal studies or what we know from human effects.” He did not identify animal studies, but did testify he based his opinion on studies of “various chemicals ... that may be given plus estrogen” which resulted in human breast cancer, and “[ejxposure to iron oxide dust and then radiation” resulting in human lung cancer. Dr. Page opined from these otherwise unidentified studies that “there’s no reason to think there would not be a combined or synergistic effect.”

¶44 By way of analogy, although with a reversal of species, the Third Circuit Court of Appeals has held, “in order for animal studies to be admissible to prove causation in humans, there must be good grounds to extrapolate from animals to humans, just as the methodology of the studies must constitute good grounds to reach conclusions about the animals themselves.” In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3rd Cir.1994).

¶ 45 Twymans provides no evidence that Dr. Page’s extrapolation from human studies to animal illness is scientifically sound, particularly where the combination of substances in the human studies have not been shown to be in any way related to the substances he was considering as part of his combined effect theory. Also, Dr. Page offered nothing on the efficacy of the methodologies used in the human studies from which he extrapolated his own theory.

¶ 46 Dr. Zent testified, it appears at least to some degree alternatively to his combined effect theory, that Twymans’ cows were harmed by manganese in the well water. During voir dire by GHK and Mobil, Dr. Zent stated “It’s the reduced form of manganese that is toxic.” The trial court ruled Dr. Zent could not testify as to reduced manganese because of an order granting a motion in limine and barring such testimony by another witness as a new theory.

¶ 47 Dr. Zent then testified that oxidized manganese was toxic at certain levels, but on cross-examination admitted that he did not know at what level oxidized manganese would be toxic to dairy cows. Dr. Zent acknowledged manganese is included as an essential element in dairy feed, and conceded it would be speculation to state the cows were getting more manganese from the water than the feed because “we don’t know how much of that black sludge was being brought up at different times when it would build up on the [water well] pump.”

¶ 48 The reliability of Dr. Zent’s theory concerning possible detrimental effects of oxidized manganese is made problematic by his own statements on voir dire that it was reduced, not oxidized manganese which carried the toxic effect. Although he testified manganese in the Twymans’ well water exceeded federal human drinking standards, he admitted he was unaware of the difference between primary and secondary standards and that the standard to which he was referring may have had nothing to do with health. Dr. Zent further admitted he had not identified any levels of oxidized manganese in Twymans’ well that had been established to be harmful to dairy cows.

¶49 Dr. Zent had done no independent research or testing to support his manganese theory, nor did he establish there was widespread acceptance of such a theory. Christian, 65 P.3d at 599. He based his theory on a two-phase study done by others. The first phase of the study indicated increased dry oxidized manganese intake caused decreased cow weight at some undetermined level between 820 parts per million (ppm) and 2460 ppm. The second phase found that at the highest level tested, 3000 ppm, there was no adverse effect on the cows. The highest level found in Twymans’ well water was 1.5 ppm. Dr. Zent had not determined the ppm of manganese in the feed Twymans’ cows were getting, so he was unable to state with any scientific certainty that the water contained more manganese than the feed. Dr. Zent’s theory of increased oxidized manganese intake seems to be little more than additional speculation in the absence of proof of a more definitive cause. We have noted above that “Speculation is the antithesis of proximate cause.” Butler v. Oklahoma City Public School System, 871 P.2d at 446. Dr. Zent’s theory does not meet the Daubert standards for scientific reliability and should not have been allowed in evidence.

¶ 50 In their Reply Brief Twy-mans assert this Court should restrict its review of the evidence relating to Daubert admissibility to that presented at the hearings on the motions in limine. We find no merit in this assertion. A motion in limine is a motion preliminary to trial to prevent introduction of prejudicial matters, and an order ruling on such motion is advisory until finally determined at trial. Christian, 65 P.3d at 610, note 22. The trial court did not rule finally on admissibility of testimony from Dr.’s Zent and Page until GHK and Mobil objected to their testimony at trial. The trial court could properly consider all matters in evidence at the time of trial objection, as can we on appeal. In fact, we are not aware of any rule precluding our consideration of any matter of record in determining admissibility under Daubert.

[18,19] ¶ 51 The evidence in controversy from Dr.’s Zent and Page did not meet the Daubert reliability standards which Christian directs to be applied. Our review of the record reveals that without that evidence, Twymans fail to establish the requisite causal nexus between any action by GHK and Mobil and Twymans’ losses. When there is no evidence from which the jury could reasonably find a causal nexus between the alleged negligent act and the resulting injury, it becomes a question of law for the court. Christian, at 610, quoting McKellips v. Saint Francis Hosp., Inc., 1987 OK 69, 741 P.2d 467. A verdict will be' directed for the defendants if plaintiffs fail to meet the burden of producing evidence that a reasonable person could believe in the existence of the causal link. Id.

¶ 52 Twymans have failed to adduce scientifically reliable and admissible evidence that their well’s water caused them any harm. Therefore, they also failed in their burden to prove proximate causation, an essential element of the negligence and nuisance claims, the only claims remaining after the jury’s verdict. Twymans have not appealed the jury’s determination on their claims and the verdict is binding on them. The trial court erred in not granting GHK and Mobil judgment notwithstanding the verdict. Accordingly, the trial court’s judgment is REVERSED. The trial court is directed to enter judgment in favor of GHK and Mobil. Twymans’ appeal from the trial court’s grant of remittitur is rendered MOOT.

¶ 53 REVERSED AND REMANDED with instructions.

JOPLIN, J., and MITCHELL, P.J., concur.

      . The exact number of cows that died is unclear from the record, but apparently 19-20 at most, and some of those admittedly died from causes unrelated to this suit.

      . The jury’s finding on the "logging tool” claim mooted the third-party claims. The third-party defendants are not party to this appeal.

      . Recovery under a nuisance theory may be for, inter alia, such intangibles as inconvenience, annoyance and discomfort. Thompson v. Andover Oil Co., 1984 OK CIV APP 51, 691 P.2d 77.

      . Causation is a necessary element in proving both negligence and nuisance actions. See, Mason v. State ex rel. Bd. of Regents of University of Oklahoma, 2001 OK CIV APP 33, 23 P.3d 964 (negligence) and Thompson v. Andover Oil Co., note 3, Supra (nuisance).

      . Daubert was adopted for use in Oklahoma state court criminal cases in Taylor v. State, 1995 OK CR 10, 889 P.2d 319.

      . See also, State v. Coon, 974 P.2d 386 (Alaska 1999)(Prohibition on ex post facto legislation does not bar retroactive application of Daubert, a judicial decision, and further, "changes to rules governing the admissibility of evidence do not violate [the prohibition on ex post facto laws].")

      . See, Christian, at 594, note 2, for an extensive list of cases in which various states have considered adoption of Daubert.

      . See, note 5, supra.

      . See, e.g. Gilson v. Slate, 2000 OK CR 14, 8 P.3d 883; Young v. State, 1998 OK CR 62, 992 P.2d 332; and Wood v. State, 1998 OK CR 19, 959 P.2d 1.

        . Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct 1167, 143 L.Ed.2d 238 (1999), “held that Daubert's general principles apply to all expert matters described in Federal Rule 702, that is, 'scientific, technical or other specialized knowledge’.” Hurlbut v. Morrow, 2002 OK CIV APP 83, 55 P.3d 455.

      . See, Hurlbert v. Morrow, note 10, supra (Even before adoption of Daubert for mandatory application in Oklahoma state civil cases, there were no general constraints on trial courts looking to Daubert for guidance in determining admissibility of expert witnesses pursuant to § 2702.)

      . See also, e.g. State v. Coon, note 6, supra {Frye is potentially capricious because it excludes scientifically reliable evidence which is not yet generally accepted, and admits scientifically unreliable evidence which although generally accepted, cannot meet rigorous scientific scrutiny.)

      . Twymans alone used experts from the fields of, among others, veterinary medicine, radiation toxicology and biology, chemistry, petroleum engineering, geology, hydrology and environmental engineering.

      . Note 4, supra. The question of proximate cause is one of law for the court if no admissible evidence has been produced from which a jury could reasonably find a causal link between the alleged wrongful act and the injury. Hampton by and Through Hampton v. Hammons, 1987 OK 77, 743 P.2d 1053.

      . Ipse dixit — "He himself said it; a bare assertion resting on the authority of an individual.” Christian, at 607, note 19, quoting Black’s Law Dictionary, 961 (4th ed.1951).

      . We have not been directed to any evidence to support this assumption.

        .Cf., Downs v. Longfellow Corporation, 1960 OK 107, 351 P.2d 999 (It is fundamental that a plaintiff, in order to impose liability upon a defendant, is required to establish, by a preponderance of the evidence, that the defendant was guilty of negligence which probably, not merely possibly, caused plaintiff's injury).

      . See also, Rider v. Sandoz Phamiaceuticals Corporation, 295 F.3d 1194 (11th Cir.2002)(It is necessary for plaintiffs to offer some rationale for the suggestion that the vascular structure of humans and animals are sufficiently similar ... to conclude that bromocriptine's effect on animals may be extrapolated to humans.)


author: PARRISH, Justice:

text:
    2004 UT 19
    REGAL INSURANCE COMPANY, Plaintiff and Petitioner, v. CANAL INSURANCE COMPANY, Defendant and Respondent.
    No. 20020198.
    Supreme Court of Utah.
    Feb. 27, 2004.

      Trent J. Waddoups, Salt Lake City, for plaintiff.
    Heinz J. Mahler, Salt Lake City, for defendant.
   On Certiorari to the Utah Court of Appeals

PARRISH, Justice:

¶1 In this case, we address the statutory procedure applicable to Utah insurers seeking reimbursement of no-fault or personal injury protection (“PIP”) benefits from other insurers. An insurer paid a PIP benefit claim to its insured and then, by filing suit, sought reimbursement for that payment from the tortfeasor’s insurer. We are called upon to decide whether binding arbitration is the exclusive forum for an insurer seeking such reimbursement. We hold that it is.

BACKGROUND

¶2 While waiting at the curb with her bicycle, Christina Chatwin was struck and injured by the right rear tire of a tractor-trailer rig as it turned the corner. Chatwin made a claim for $3,000 in PIP benefits to her own insurance carrier, Regal Insurance Company (“Regal”). Regal paid Chatwin’s claim and sought reimbursement for that payment from Canal Insurance Company (“Canal”), the insurer of the trailer that struck Chatwin. Canal refused to reimburse Regal, asserting that its policy covering the trailer did not include PIP benefits. Regal then filed suit against Canal, seeking reimbursement under the equitable theory of sub-rogation. In response, Canal argued that any common law right of subrogation had been foreclosed by Utah’s statutory scheme, which requires that insurers submit PIP reimbursement disputes to binding arbitration. See Utah Code Ann. § 31A-22-309(6) (1999).

¶ 3 The trial court held that Utah Code section 31A-22-309(6) did not extinguish Regal’s common law right of subrogation to press Chatwin’s claims against Canal. The court reasoned that while the binding arbitration procedure mandated by statute applied to reimbursement disputes over allocation of fault, it did not apply to reimbursement disputes based upon issues of coverage. Because the dispute between Regal and Canal is a covex-age dispute, the trial court held that Regal was entitled to press its claim in court. After considering the coverage issue, the trial court entered summary judgment in favor of Regal.

¶ 4 Canal appealed, and the court of appeals reversed. The court of appeals held that Utah Code section 31A-22-309(6) and this court’s interpretation of that provision in Allstate Insurance Co. v. Ivie, 606 P.2d 1197 (Utah 1980), replaced an insurer’s common law right of subrogation for recovery of PIP benefits with the right to seek reimbursement through arbitration. Accordingly, the court of appeals held that binding arbitration was the exclusive avenue through which Regal could seek reimbursement of its PIP payments from Canal. We agree and affirm the judgment of the court of appeals.

STANDARD OF REVIEW

¶ 5 Because no facts are in dispute, this case presents only questions of law. We review the court of appeals’ interpretation of the relevant statute for correctness, according no deference to its conclusions. State v. Ostler, 2001 UT 68, ¶5, 31 P.3d 528. We review the court of appeals’ interpretation of our case law under the same standard. State v. Redd, 2001 UT 113, ¶13, 37 P.3d 1160.

ANALYSIS

I. THE SCOPE OF THE MANDATORY ARBITRATION PROVISION

¶ 6 We construe the mandatory arbitration provision of Utah Code section 31A-22-309(6) broadly, holding that it applies to reimbursement disputes based on issues of coverage, as well as reimbursement disputes based on issues of fault. Our construction is based on the plain language of the statute and on the fact that a narrower interpretation would frustrate the statutory purpose of increasing efficiency in the resolution of PIP reimbursement disputes among insurers.

¶ 7 We begin with the language of the statute itself. Section 31A-22-309(6) of the Utah Code provides:

Every policy providing personal injury protection [PIP] coverage is subject to the following:
(a) that where the insured under the policy is or would be held legally liable for the personal injuries sustained by any person to whom benefits required under personal injury protection have been paid by another insurer ... the insurer of the person who would be held legally liable shall reimburse the other insurer for the payment ...; and
(b) that the isstie of liability for that reimbursement and its amount shall be decided by mandatory, binding arbitration between the insurers.

Utah Code Ann. § 31A-22-309(6) (1999) (emphasis added).

¶ 8 We examined this statutory language in Allstate Insurance Co. v. Ivie, where we held that subsection 31A-22-309(6) “cannot be deemed as conferring subrogation rights on the no-fault insurer.” 606 P.2d 1197, 1202 (Utah 1980). Rather, we held that the statute confers on first-party insurers a “limited, equitable right to seek reimbursement in arbitration.” Id.

¶ 9 While Regal acknowledges that reimbursement claims arising from disputes over liability are subject to arbitration, Regal argues that its claim against Canal is not subject to arbitration because its reimbursement dispute with Canal is not a dispute over fault, but rather a dispute over coverage. Regal argues that neither the statutory language nor our interpretation of that language in Ivie extends to cases where the PIP insurer disputes the question of whether the victim is an “insured” under the policy, rather than the question of who would be held legally liable for the victim’s injuries.

¶ 10 Because the statute mandates binding arbitration of “the issue of liability for ... reimbursement,” Utah Code Ann. § 31A-22-309(6)(b) (1999), Regal’s argument presents the question of how broadly to interpret that phrase. Both parties agree that the question of who was at fault for causing Chatwin’s injuries constitutes an “issue of liability for ... reimbursement.” See Laub v. S. Cent. Utah Tel. Ass’n, 657 P.2d 1304, 1309 (Utah 1982) (“The no-fault insurer’s only right of reimbursement through subrogation is against the liability insurer in an arbitration proceeding.”); Ivie, 606 P.2d at 1202. They disagree, however, as to whether the issue of liability for reimbursement also includes questions about who is an “insured,” or in other words, whether an accident victim is covered by a particular insurance policy. In short, the parties ask us to decide whether the statute contemplates a scheme where disputes over coverage are to be resolved in a different forum than disputes over fault.

¶ 11 The plain statutory language requires us to interpret the statute broadly to encompass disputes over coverage as well as disputes over fault. Under subsection 309(6)(b), mandatory arbitration is not limited to the narrower question of liability for an injury. Rather, the statute mandates arbitration for the broader issue of liability for reimbursement. Whether an alleged tortfea-sor’s insurer is liable to reimburse an accident victim’s insurer for PIP payments necessarily encompasses both the question of fault and the question of coverage, i.e., whether the tortfeasor’s insurance policy covers the accident victim at all.

¶ 12 Our interpretation of the statute is also supported by considerations of economy, which are a primary reason for employing an arbitration system to resolve disputes between insurers. See Docutel Olivetti Corp. v. Dick Brady Sys., Inc., 731 P.2d 475, 479 (Utah 1986) (stating that arbitration “provides] a method more expeditious and less expensive [than the court system] for the resolution of disputes” (internal quotations and citations omitted)). Arbitration is intended to be a more efficient method than the judicial system for insurers seeking to sort out how much one company owes another. See Giannopulos v. Pappas, 80 Utah 442,15 P.2d 353, 356 (Utah 1932) (“[Arbitration is favored in the law as a speedy and inexpensive method of adjudicating differences .... ”); see also Ivie, 606 P.2d at 1204 (Stewart, J., concurring) (explaining why arbitration is an efficient way of handling claims for reimbursement of PIP payments).

¶ 13 The statutory purpose of achieving efficiency in the resolution of insurer reimbursement disputes applies equally to cases presenting issues of coverage and cases presenting issues of fault. Moreover, some reimbursement disputes present issues of both fault and coverage, and it would be particularly inefficient for such claims to be divided and resolved in separate proceedings. In short, an interpretation that would require resolution of coverage disputes in court, while requiring resolution of fault disputes in arbitration, would defeat the very purpose of the statute — greater efficiency in the resolution of insurer disputes.

¶ 14 In subjecting reimbursement disputes based on coverage to binding arbitration, we are aware that some coverage disputes turn on issues of statutory interpretation, which are expressions of the state’s public policy on insurance. While requiring arbitrators to rule on such issues is not ideal, the statutory language employed by the legislature requires such a result.

II. THE APPLICABILITY OF THE MANDATORY ARBITRATION PROVISION

¶ 15 Regal also attempts to escape the requirement of mandatory arbitration by arguing, in the alternative, that the terms of the mandatory arbitration provision, Utah Code Ann. § 31A-22-309(6), do not apply to this case at all. Instead, Regal argues that its claim against Canal is governed by an entirely different statutory provision, Utah Code Ann. § 31A-22-309(4). That provision, which addresses the concept of “primary coverage,” provides that “[w]hen a person injured is also an insured party under any other policy, ... primary coverage is given by the policy insuring the motor vehicle in use during the accident.” Regal relies on this provision to argue that Canal, rather than Regal, was Chatwin’s primary PIP carrier and that Regal is therefore entitled to recover from Canal the PIP benefits it paid to Chatwin without regard to the mandatory arbitration provisions of subsection 309(6).

¶ 16 Regal’s argument is entirely misplaced. The question of which PIP coverage is primary is not relevant to the question of whether Regal has the right to recover its PIP payments from Canal by filing suit. The mandatory arbitration scheme imposed by subsection 309(6) applies to “[e]very policy providing [PIP] coverage” (emphasis added). It contains no distinction between policies providing primary coverage and those providing secondary coverage. Rather, the mandatory arbitration requirement is triggered as soon as any insurer, other than the tortfeasor’s insurer, pays a PIP claim. At that point, the law requires the tortfeasor’s PIP insurer to reimburse any other insurer that has paid PIP benefits to the accident victim and provides that binding arbitration is the exclusive vehicle for enforcing that reimbursement obligation.

III. ATTORNEY FEES

¶ 17 In addition to seeking reimbursement from Canal for the PIP benefits it paid to Chatwin, Regal also seeks interest and attorney fees from Canal under Utah Code section 31A-22-309(5). This section entitles a claimant to interest and attorney fees if her insurer does not pay a PIP claim within thirty days of receiving reasonable proof of expenses. Utah Code Ann. § 31A-22-309(5) (1999). Because Regal’s exclusive forum for seeking reimbursement of Chatwin’s PIP benefits is in arbitration, we do not reach Regal’s claim for interest and attorney fees. We do, however, agree with the court of appeals that the availability of interest and attorney fees under subsection 309(5) is limited to those situations where an insurer fails to timely pay PIP benefits to an “injured party.” Subsection 309(5) does not provide for an award of interest or attorney fees to an insurer seeking reimbursement of PIP benefits from another insurer. Regal Ins. Co. v. Canal Ins. Co., 2002 UT App 27, ¶¶ 10-11, 42 P.3d 387.

CONCLUSION

¶ 18 We agree with the court of appeals that “Regal may not pursue a subrogation suit against Canal for the $3,000 in PIP benefits Regal paid to Chatwin.” Id. at ¶ 12. Utah Code section 31A-22-309(6) requires that any insurer’s claim to reimbursement of PIP benefits from another insurer be decided by binding arbitration between the insurers. Accordingly, we affirm the opinion of the court of appeals.

¶ 19 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Judge DAVIS concur in Justice PARRISH’s opinion.

¶ 20 Having disqualified himself, Justice NEHRING does not participate herein; District Judge LYNN W. DAVIS sat.

      . The text now found in section 31A-22-309(6) " ‘differs slightly from [the statute at issue in Ivie ] in wording but not in substance.' " Regal Ins. Co. v. Canal Ins. Co., 2002 UT App 27, ¶ 8 n. 1, 42 P.3d 387 (quoting Bear River Mut. Ins. Co. v. Wall, 1999 UT 33, ¶2 n. 2, 978 P.2d 460).

      . The insurance statutes reflect legislative decisions regarding which party’s insurer should carry coverage burdens in certain circumstances. In this case, in refusing to reimburse Regal, Canal relies on a clause in its policy that attempts to limit its coverage to only those vehicles for which such coverage is required under Utah law. Regal contends that Utah law prohibits Canal from limiting coverage by incorporating minimum statutory coverage requirements. In such cases, where a coverage dispute presents issues of statutory interpretation, sending the dispute to arbitration leaves the arbitrator with the task of interpreting and executing state public policy.