# Gomes v. Hameed

> Supreme Court of Oklahoma · January 22, 2008 · 184 P.3d 479

URL: https://www.frixlaw.com/law-library/cases/9796766

## Case

- **Full name:** Linda GOMES, Edward B. Gomes, and Joseph Michael Coover, Co-Guardians of the Estate and Person of Alyssa Marie Gomes Coover, the Minor Child and Next of Kin of Georgette Rosa Gomes, Deceased, on Behalf of Alyssa Marie Gomes Coover, and on Behalf of Linda C. Gomes and Edward B. Gomes, Surviving Parents of Georgette Rosa Gomes, Deceased; And Linda Gomes and Edward B. Gomes, Individually, Plaintiffs/Appellants, v. Akhtar HAMEED, M.D. and Jennifer L. Miles Holter, M.D., Defendants/Appellees
- **Court:** Supreme Court of Oklahoma
- **Decided:** January 22, 2008
- **Citations:** 184 P.3d 479; 2008 OK 3; 2008 Okla. LEXIS 4; 2008 WL 187518
- **Precedential status:** Published
- **Opinion:** Dissent by Opala
- **Judges:** Taylor, Edmondson, Hargrave, Kauger, Watt, Colbert, Opala, Reif
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9796766

## Opinion text

OPALA, J.,
dissenting
¶ 1 The court reverses today a trial court order sustaining a physician's (Holter) plea in bar based on her contractual immunity from suit. Today's pronouncement declares and gives retrospective effect to a new rule of Oklahoma common law which requires judicial approval of a covenant not to sue that is made on behalf of a minor plaintiff in tort. The court's opinion gives this plaintiff 1 alone the benefit of the newly crafted norm.
¶ 2 I recede from the court's opinion. State due process is violated by today's retroactive application of a newly erafted norm of Oklahoma common law given birth in the face of a total past jurisprudential silence and absent any testimonial proof of the norm's pre-existence in Oklahoma practice by long-established and widespread antecedent use. Short of such probative underpinnings, a newly pronounced rule of state common law must be applied only prospectively. Lawyers and litigants should be accorded adequate notice before they may be expected to conform their contracts for immunity to some obscure rule of local common law plucked from nowhere which stands unsupported by proof of its actual existence in pre-pronouncement practice. Even if the norm were to be made applicable prospectively only, I would prefer awaiting the completion of an ALI examination and its full consideration of the new norm's impact on the existing common law. 2 Moreover, I would be most hesitant to deal today with the problem of a new norm's recognition. Neither the factum of plaintiff's promise not to sue nor the binding force of the contract that gave birth to the claimed immunity was either directly or obliquely presented to the trial court for its resolution.
I
THE HASTE SHOWN TODAY IN THE PROCESS OF ADOPTING A NEW NORM OF OKLAHOMA'S COMMON LAW IS INCONSISTENT WITH THE LONG ACCEPTED NATIONAL STANDARD OF THE ALL FOR RECOGNIZING CHANGES IN NORMS OF UNENACTED LAW PRIOR TO THEIR INCLUSION IN THE RESTATEMENT
A.
The ALI's Restatements Of Law Carefully And Deliberatively Monitor And Track The Development And Growth Of American Common Law
13 Restatements of the common law on chosen subjects have long been recognized as a material source for tracking or monitoring the development and growth of common-law norms. 3 The American Law Institute (ALT), *492 a private national organization of judges, practitioners, and law teachers The, 4 crafts the restatements, whose purpose is to identify, simplify and clarify selected common-law norms. 5 The restatement process is slow and deliberative. 6 An ALI restatement on a given legal subject is developed gradually over a period of years. 7 Today's hasty ree-ognition of a new state common-law norm shortcuts severely the accepted restatement process by adopting into Oklahoma law a new legal norm on the basis of a single state's jurisprudential development of very recent vintage.
B.
Today's Adoption of a Yet Untested Legal Norm From a Single State's Jurisprudence Imposes A Severe Restriction On the Freedom of Advocacy
¶ 4 Today's adoption of an untested legal norm from North Carolina 8 imposes a severe restriction upon the freedom of advocacy without the analytical benefit of an ALI examination and full consideration of the new norm's impact on the legal system and on the existing common law. While settled Oklahoma common law recognizes a court's duty to protect a minor from liability for an excessive attorney's fee 9 and from an inadequate in-court settlement of a minor's claim, 10 that *493 is not an issue before us. There is no showing here of a single weighty element of public policy that would convincingly justify judicial intervention in private attorney-client relationships.
¶ 5 The contract tendered in this case as the basis of a physician's plea in bar based on her contractual immunity deals solely with a tort lawyer's trial strategy. By that strategy immunity from suit was allegedly extended to a physician in exchange for her favorable testimony in a minor's tort case against a hospital. 11 I would not restrict an advocate's strategy choices by injecting the judiciary into a field in which it lacks the same quantum of expertise as that possessed by a practitioner. 12
¶ 6 For the reasons to be explained in Part II infra, even if I were inclined to join today's pronouncement, I would not in this case give retrospective sweep to the rule's efficacy in order to relieve this tort plaintiff from her contractual obligation.
II
GIVING RETROSPECTIVE EFFECT TO THE HASTILY ADOPTED NEW NORM OF OKLAHOMA COMMON LAW VIOLATES THE DUE PROCESS CLAUSE OF THE OKLAHOMA CONSTITUTION, ART. 2, § 7
A.
Judicial Development Of Unenacted Law Norms Is Guided By Different Process From That Which Is Employed When Dealing With Enacted Law
¶ 7 Federal constitutional law fails to provide a meaningful precedent for according either retroactivity or prospectivity to a pronouncement of a new common-law norm. We are dealing here not with enacted norms of constitutional law but rather with une-nacted (unwritten 13 ) law rules plucked from a single foreign court decision. Had the norm chosen for today's adoption been one of English common law, which lawyers are presumed to know, it could have been im *494 planted without added study. 14 When we are dealing with a norm of common law in the state, its pre-existence (existence antecedent to today's pronouncement) could be established cither by extant state jurisprudence or, in its absence, by expert testimonial proof of the norm's general acceptance in the state by long-established and widespread use. 15 But if the rule to be adopted today is one of American common law but found neither in Oklahoma jurisprudence nor in the common law of England, litigants and their lawyers should not be bound to notice its existence sams proof.
B.
A Court May Not Give Retroactive Effect To A New Norm Of Oklahoma Common Law Whose Pre-Existence-An-tecedent To Its Judicial Pronouncement-Has Not Been Established of Record
¶ 8 There is no record proof here that shows a pre-existent Oklahoma anchor for the attempted transplantation of the common-law norm. The court applies neither the common law of England nor an established state common law. Instead it recognizes a legal norm plucked from a single sister state's body of common law of which no one may be bound to have knowledge. In the absence of knowledge and testimonial proof of the rule's pre-existence in Oklahoma practice, it is inherently unfair to impose the new norm retroactively and bind the physician in this case. 16 In short, today's retrospective application of the North Carolina common-law norm to benefit the plaintiff violates the due process clause of the Oklahoma Constitution. 17
III
THE TRIAL COURT'S DISMISSAL ORDER FROM WHICH AN APPEAL WAS BROUGHT DETERMINED BUT A SINGLE ISSUE DEHORS THE PLAINTIFF'S CLAIM; NO ISSUE PERTAINING TO THE CLAIM OR DEFENSES AGAINST THE CLAIM WAS DECIDED BELOW
¶ 9 This appeal is neither from a summary judgment nor from any other judgment 18 for Dr. Holter. The trial court's disposition does not deal with a single issue on the merits of the case. 19 The so-called judgment is a *495 claim's dismissal based on the physician's plea in bar-based on her contractual immunity-which is entirely dekors the merits. Before a final order could be rendered in favor of the defendant physician, the trial court would have had to decide, antecedent to trial, (a) whether the parties had in fact entered into a contract for immunity which the doctor pleaded in bar 20 and, if so, (b) whether that contract will qualify for the trial court's approval. That stage had not occurred here before the dismissal order's entry.
¶ 10 Because there is clearly a factual dispute over whether there had been an offer, acceptance and a meeting of the minds on the terms of the immunity agreement and the trial court had not been urged to consider the norm of common law pronounced today, I would abstain from dealing with that issue but would allow the parties to press it on remand. The physician's contractual immunity and the retrospective application of its judicial approval, if one is given, are both prematurely tendered and dealt with by the court.
IV
SUMMARY
¶ 11 Today's adoption of a new legal norm-taken from a single sister state's common-law jurisprudence-shorteuts severely the multiple-stage process of the ALI restatement work. The court's hasty and premature injection of a new Oklahoma norm of unwritten law without any consideration of its impact on existing common law throws to the winds the safeguards built into the ALI restatement system. I would await a careful and thorough ALI examination before adopting the tendered norm into the body of Oklahoma's common law.
¶ 12 Neither can I accede to the retroactive adoption of a new legal norm of Oklahoma's unwritten law whose pre-existence is without record proof and whose effect on freedom of forensic advocacy is likely to be stifling. Moreover, the retroactive application of the new common-law norm clearly violates the due process clause of the Oklahoma Constitution.
¶ 13 would reverse the dismissal order that falsely parades here as a "summary judgment" but in reality does not qualify either as summary judgment or as any other kind of judgment. I would direct that the trial judge first reach for its resolution on remand-and only upon an evidentiary hearing-the defendant physician's plea in bar based on a contract that confers upon her immunity from suit. If the trial court should conclude that immunity by contract was not conferred on the doctor, the claim could go on to trial of its erits. If the trial court should decide that there wa an executed oral agreement by which the plaintiff agreed to release the physician from liability in return for her favorable testimony in a tort case against the hospital, I would afford the plaintiff an opportunity to demonstrate on remand the pre-existence in Oklahoma practice of the common-law norm that requires judicial approval of the agreement for the physician's immunity in this case.
. Because originally there was only one plaintiff in this tort case (the minor), all references made here to the plaintiffs are in the singular.
. See Part I infra for a discussion of the ALI's [American Law Institute] restatement-of-law process for recognition of additions to the accepted norms of common law.
. Shirley S. Abrahamson, Refreshing Institutional Memories: Wisconsin and the American Law Institute, The Fairchild Lecture, 1995 Wis. L.Rev. 1, 3 (1995), where the author states: "... The restatements 'provide lawyers and judges with carefully formulated descriptions of the [common] law and traditionally have served as authoritative guides for both legal briefs and judicial opinions.'" (emphasis supplied). The ALI restatements are scholarly "codifications of American common law in various substantive law areas, based upon the decisions of the courts of last resort of the states." {emphasis added). Winters, The Contribution of Professional Organizations To Stability And Change Through Law 265, 269 (1963). As one legal commentator noted, "Because of the reputation enjoyed by the ALI among judges and practitioners, and because restatement 'black letter' rules are accompanied by thorough research, they are often used and cited. In this fashion, an ALI restatement of a rule can confirm that it is accepted by all or nearly all of the states. When such a degree of acceptance does not exist, the restatement makes that clear as well." David Gruning, Pure Economic Loss in American Tort Law: An Unstable Consensus, 54 Am. J. Comp.L. 187, 190 (2006). According to Chief Justice Wilkins (of the Massachusetts Supreme Judicial Court), "The American Law Institute has been a major force in the sound development of American law. Its monumental first Restatements, pronouncing on the fundamental principles of the common law, have *492 greatly influenced the advancement and unification of legal principles in this country. Revisions of the initial Restatements have permitted the Institute to reassess stated principles and to recognize developing concepts." Herbert P. Wilkins, Symposium On the American Law Institute: Process, Partisanship, and the Restatements of Law, 26 Hofstra L.Rev. 567 (1998).
. Founded in 1923, the ALI is a non-profit organization of approximately 3,500 lawyers, law professors and judges. The ALI was established during a period when both the federal and state courts were developing and administering common law. Swift v. Tyson, 41 U.S. 1, 18 , 16 Pet. 1 , 10 L.Ed. 865 (1842)(the Court articulated a doctrine of general federal common law). Erie R. Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), which ended the Swift era, required federal courts in deciding a diversity case to apply state substantive law except in matters governed by the federal constitution or by acts of Congress. For a history of the ALI, see Herbert F. Goodrich, The Story of the American Law Institute, 1951 Wash.U.L.Q. 283 (1951); Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, 1 The American Law Of Torts § 1:18 at 61 (1983); Abrahamson, supra note 3, at 7-24.
. Abrahamson, supra note 3, at 3.
. When the ALI Council (the ALI's 60-member governing body) selects a project, a reporter is appointed to draft the restatement. The reporter is "generally a law professor" and "should be an expert in the field" who has "in all probability, written extensively about the subject." Abra-hamson, supra note 3 at 2. For a discussion of the restatement process see James A. Henderson, Jr. and Aaron D. Twerski, What Europe, Japan,, and Other Countries Can Learn from the New American Restatement of Products Liability, 34 Tex. Int'l LJ. 1, 6 (1999). "Altogether, at least a dozen formal drafts, published in softcover and widely circulated among ALI members, were discussed, debated, criticized, and revised over the five-year life of the project. The Reporters met with one group or another in formal sessions at least six times each year and presented drafts at Annual Meetings in 1994, 1995, 1996, and 1997. Thousands of written suggestions were received and considered by the Reporters, and countless hours were spent in person and on the telephone discussing every conceivable aspect of the project. Reported appellate court decisions and statutes spanning a thirty-year period were examined, classified, and relied on as the basis for the black letter rules and supporting comments. All of this research is included in the finished form of extensive Reporters' Notes." Id at 6. See also 1 Madden & Owen on Products Liability § 5:10 Restatement Third, Torts: Products Liability-Generally; Michael F. Sturley, Restating the Law of Marine Insurance: A Workable Solution to the Wilburn Boat Problem, 29 J. Mar. L. & Com. 41 , 52 (1998).
. Id.
. The affidavit by plaintiff's counsel attacks the "purported agreement" as invalid because it was neither "investigated nor approved by the trial court." For this view counsel relies solely on a North Carolina common-law rule announced in Creech v. Melnik, M.D., 147 N.C.App. 471 , 556 S.E.2d 587 (2001). There the court held that an implied contract not to sue a physician in exchange for information and for her favorable medical opinion, which the parents' attorney allegedly entered into on behalf of a minor, was invalid without "investigation and approval by the trial court."
. A counsel-fee contract on behalf of a minor need only be approved for its reasonableness. Abel v. Tisdale, 1980 OK 151 , ¶¶ 14-17, 619 P.2d 608, 610-11 ; Sneed v. Sneed, 1984 OK 22, ¶¶ 3-4 , 681 P.2d 754, 756 .
. Settled Oklahoma common law requires only that an in-court settlement of a minor's claim be *493 approved by the trial court. Abel v. Tisdale, supra note 9 , at ¶¶ 14-17, 619 P.2d at 610 ; Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 19 , 920 P.2d 122 , 129 n. 4.
. There appears to be no need for judicial intrusion upon a lawyer's freedom to choose strategy by electing which is more valuable-a right to sue a physician or that doctor's favorable testimony in a trial against another party charged with the same tort. Moreover it would be injurious to the development of an effective litigation course to create a filed court record of matters that relate to one party's strategy. An imposition of such rigid and onerous requirement for all litigation strategy choices in lawsuits brought for minors would enlarge a lawyer's liability for an improvident granting of immunity and may create new liability for those professionals who fail to submit for judicial approval every component of their litigation game plan.
. Today's pronouncement calls on a judge to act in restraint of advocacy without in-depth knowledge of the strategy choices available to a lawyer. Lawyers who are advocates in practice are in the best position to assess the advantage to be derived from testimony against the weaker defendant. There is no general principle of common law, and none has been shown here, that subjects to judicial supervision any major or minor trial strategy decisions in the prosecution or defense of a case for a minor. The common law of England and its equivalent in other states do not generally restrict a lawyer's freedom to make critical strategy choices in the course of litigating for a minor by requiring that there be judicial approval of every decision. Neither is there any Oklahoma jurisprudence that declares a party's decision on trial strategy to be a matter of judicial concern.
. The unwritten law-earlier known by the Latin name of lex non scripta regni Angliae-is the non-statutory law of the kingdom of England and Wales, also called the common law, which originated from custom and judicial decisions. Brown v. Ford, 1995 OK 101 , ¶ 10 n. 32, 905 P.2d 223, 229 ; Great Plains Federal Sav. and Loan Ass'n v. Dabney, 1993 OK 4, ¶ 4, n. 19 , 846 P.2d 1088, 1096 (Opala, J., concurring); McCormack v. Oklahoma Pub. Co., 1980 OK. 98, ¶ 7 , 6 13 P.2d 737, 740 . The common law is distinct from written (constitutional or statutory) law in that the doctrines of the former are open to judicial repudiation, modification and expansion, while the constitution and statutes are not so elastic. Deffenbaugh v. Hudson, 1990 OK 37, ¶ 15 , 791 P.2d 84, 88 . "The common law, followed in Oklahoma, refers not only to the ancient unwritten law of England, but also to that body of law created and preserved by decisions of courts. The common law is not static, but is a dynamic and growing thing and its rules arise from the application of reason to the changing conditions of society. Flexibility and capacity for growth and adaptation is its peculiar boast and excellence." McCormack, supra.
. By the mandate of 12 0.$.2001, § 2, the common law remains in full force in this state, "unless a statute explicitly provides to the contrary." The common law is drawn from three sources-the common law of England, of other states and of Oklahoma. Had the norm sought to be adopted here been one of English common-law origin, there would be no impediment to making it retroactive because lawyers should know the common law of England which stands recognized in Oklahoma practice.
. The existence of a rule of Oklahoma common law cannot be drawn from a vacuum. The sources for the common-law norm advanced by the plaintiff should have been offered to establish its existence to the satisfaction of the trial court. There is no proof in this record that the rule sought to be imposed as an Oklahoma norm is Oklahoma's common law. It would be improper to give recognition to some local common-law rule in the absence of elicited supporting proof of a statewide custom that has been widely followed by nisi prius judges over a reasonable length of time.
. Generally, when a newly announced rule of law appears obscure, prospective effect will be given to the pronouncement to protect those who would otherwise suffer from the law's abstruse or obscure contours. McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK. 30, ¶ 12, 979 P.2d 252, 257 ; Isbell v. State, Etc., 1979 OK 156, ¶ 1 , 603 P.2d 758, 760-61 (Opala, J., concurring). Prospective application of a decision is not reserved solely for situations that deal with conflicting statutes nor with interpretation of a legislative ambiguity. It is equally commended to those situations where issues of first impression are not clearly foreshadowed by decisional law and where it serves to protect the public's reasonable expectation of reliance on prior judicial decisions. Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16 , ¶¶ 19-22, 732 P.2d 438, 446-49 .
. Due process is the gauge of fundamental fairness,. McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 14 , 979 P.2d 252 ; Shamblin v. Beasley, 1998 OK 88, ¶ 12 , 967 P.2d 1200, 1209 ; Joiner v. Brown, 1996 OK 112, ¶ 6 , 925 P.2d 888, 889-890 .
. By statutory definition, a "judgment is the final determination of the rights of the parties in an action" 12 0.$.2001 § 681.
. The word "merits" has a well-defined meaning in law. What is on or dehors the merits depends on whether the issue at hand affects one *495 or more elements of the claim for relief or those of the defenses that may be interposed against it. See, e.g., Sommer v. Sommer, 1997 OK 123 , 947 P.2d 512, 522 (Opala, J., dissenting); Pryse Monument Company v. District Court of Kay County, 1979 OK 71 , 595 P.2d 435, 437-38 (when a case is terminated as time-barred, the disposition is "on the merits" because the statute of limitations is an affirmative defense). Neither the title given an instrument by which the issue is tendered nor the stage of the process at which that issue was raised below can conclusively determine whether the question is on or off the merits. Sommer v. Sommer, supra, at 522-23 (Opala, J., dissenting); Roark v. Shelter Mutual Ins. Co., 1986 OK 82 , 731 P.2d 389, 390 (Opala, J., concurring).
. Dr. Holter's defense against the tort for which recovery is sought rests on contractual immunity from plaintiff's suit to recover for harm to the minor. For her immunity she promised to and did testify against the Hospital. The factum of the promise's existence is disputed by the plaintiff.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796766. Public record. Not legal advice.