Solis v. Burningham Enterprises Inc.

2015 UT App 11

_________________________________________________________

THE UTAH COURT OF APPEALS

KRIS SOLIS,

Plaintiff and Appellant,

v.

BURNINGHAM ENTERPRISES INC. AND RAYMOND ALAN DAVIS,

Defendants and Appellees.

Opinion

No. 20130649-CA

Filed January 15, 2015

Fourth District Court, Provo Department

The Honorable David N. Mortensen

No. 110402754

Allen K. Young, Tyler S. Young, and Jonah Orlofsky,

Attorneys for Appellant

Nathan S. Morris and Zachary E. Peterson, Attorneys

for Appellees

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

JAMES Z. DAVIS and JOHN A. PEARCE concurred.

TOOMEY, Judge:

¶1 Kris Solis appeals from a jury verdict in favor of

Burningham Enterprises Inc. and Raymond Alan Davis

(collectively, Defendants). Solis argues the trial court exceeded

its discretion in ruling that she failed to disclose an expert

witness and, on this basis, excluded the expert’s testimony.

Additionally, Solis argues the trial court exceeded its discretion

by refusing to extend the disclosure deadlines. We affirm.

Solis v. Burningham Enterprises

BACKGROUND1

¶2 On August 31, 2010, Solis’s husband, Daniel, was driving

in the passing lane, lane one, on northbound I-15 through a

construction zone. As another driver, Nancy Thacker, merged

onto the interstate in lane four, Davis, an employee of

Burningham Enterprises, was driving the company’s semi-truck

in lane three. When Thacker attempted to change lanes into lane

three, her vehicle collided with the semi-truck and slid across the

interstate into lane one, striking Daniel’s vehicle. Daniel died as

a result of the crash.

¶3 In September 2011, Solis sued Defendants for negligence,

gross negligence, and reckless indifference.2 In her initial

disclosures, Solis listed as fact witnesses Officer James Wright

and other Utah Highway Patrol (UHP) officers who responded

to the scene of the accident. Solis later designated several expert

witnesses, including an accident reconstructionist, but did not

designate any UHP officers as potential expert witnesses.

¶4 During the deposition of UHP Officer Matthew Urban,

Solis asked him to outline his expertise and experience in

accident reconstruction. She also asked him to explain his work

on a UHP accident reconstruction diagram of the accident.

Urban indicated that based on his observations at the scene and

his work on the diagram, he believed the Burningham truck left

a 248-foot skid mark on the pavement of the interstate.

1. “On appeal, we recite the facts from the record in the light

most favorable to the jury’s verdict.” Smith v. Fairfax Realty, Inc.,

2003 UT 41, ¶ 3, 82 P.3d 1064 (citation and internal quotation

marks omitted).

2. Because Solis ultimately reached a settlement with Thacker,

Thacker was not a party to this litigation.

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¶5 Defendants filed a motion to exclude Urban’s opinion that

the Burningham truck left the skid mark; they urged the trial

court to exclude the opinion because Solis failed to designate

Urban as an expert witness. Defendants also filed a second

motion to exclude the testimony of Solis’s accident

reconstructionist, Scott Anderson, arguing that Anderson’s

opinions relied exclusively on Urban’s conclusions regarding the

origin of the skid mark.

¶6 In opposing Defendants’ motions, Solis claimed she did

disclose that she would rely on Urban as an expert witness. As

evidence of this, Solis pointed to her initial disclosures indicating

that Wright and other UHP officers involved in reconstructing

the accident were likely to have discoverable information

supporting her claims:

Officers/staff and/or agents of the Utah Highway

Patrol. Any and all officers/staff or agents at the

scene of the incident and/or involved with the

investigation of the incident, reconstruction of the

incident, photos of the incident, written reports

and/or witness statements taken. Testimony is

anticipated to be facts and information about the

incident.

In addition, Solis pointed to her disclosure of the “Utah

Highway Patrol Accident Reconstruction” as a document that

would support her claims. But Solis also asserted that Urban

would offer only his factual observations of his investigation and

although Urban would testify that the skid mark came from the

Burningham truck, he would not opine as to the speed of the

truck.

¶7 After hearing arguments on the motions, the trial court

granted Defendants’ motion to exclude Urban’s opinion

testimony, reasoning that Utah law has “drawn a bright line that

you have to designate witnesses to be expert witnesses.” Because

“there was not a designation,” the trial court ruled Urban could

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not testify as an expert witness. As to Defendants’ second

motion, the trial court determined that because Anderson’s

opinions were premised on an independent conclusion that the

skid mark was attributable to the Burningham truck, Anderson

was allowed to offer his opinions regarding the origin of the skid

mark and the speeds of the vehicles at the time of the accident.

But Anderson was not permitted to “disclose to the jury any

opinions of Officer Urban or any other undisclosed expert at

trial.” Likewise, the trial court ruled that the UHP diagram could

be offered as evidence but the court excluded references on the

diagram to Urban’s opinions. As a result, all information

attributing the 248-foot skid mark to the Burningham truck was

redacted from the diagram received at trial.

¶8 A jury trial was held in May 2013. Solis argued to the jury

that before the accident, Davis was driving the Burningham

truck in excess of the fifty-five miles-per-hour speed limit. Solis

theorized that when Thacker’s vehicle pulled in front of the

truck, Davis hit the brakes, leaving the 248-foot skid mark. Had

Davis been driving the speed limit, Solis argued, the

Burningham truck would have been able to slow down enough

to avoid making contact with Thacker’s vehicle. In support of

this theory, Solis presented testimony from Davis, Wright, and

other drivers who witnessed the accident. Solis also called

Urban, who testified about his investigation and contributions to

the diagram without referencing his opinion on the question of

which vehicle made the 248-foot skid mark. Solis then elicited

expert testimony from Anderson, who testified that the

Burningham truck left the skid mark, which showed Davis was

speeding before the truck struck Thacker’s vehicle.

¶9 In their defense, Defendants argued that Davis drove at a

reasonable speed under the circumstances and that the accident

would not have happened if Thacker had stayed in lane four.

Defendants claimed the evidence did not support a finding that

the 248-foot skid mark came from the Burningham truck or a

conclusion that it was speeding at seventy miles per hour before

the collision. Defendants also offered expert testimony from two

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accident-reconstruction experts to support their interpretation of

the evidence. Both defense experts testified that the Burningham

truck did not leave the skid mark, but one also testified that

Thacker caused the accident by making an improper lane

change.

¶10 The jury found in favor of Defendants. The special verdict

form asked the jury, “Were Defendants . . . at fault?” The jury

answered, “No.” The trial court therefore entered judgment

against Solis. Solis appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Solis first argues the trial court exceeded its discretion in

ruling that she failed to disclose Urban as an expert witness.

Solis further contends that even if she should have designated

Urban as an expert witness, the trial court should have admitted

Urban’s testimony and the unredacted diagram. We review the

trial court’s interpretation of a rule of civil procedure for

correctness. Pete v. Youngblood, 2006 UT App 303, ¶ 7, 141 P.3d

629. “We review the trial court’s . . . exclusion of testimony . . .

for an abuse of discretion.” Id.

¶12 Second, Solis argues the trial court exceeded its discretion

in refusing to extend the discovery deadlines. “Trial courts have

broad discretion in managing the cases before them and we will

not interfere with their decisions absent an abuse of discretion.”

Townhomes at Pointe Meadows Owners Ass’n v. Pointe Meadows

Townhomes, LLC, 2014 UT App 52, ¶ 9, 329 P.3d 815 (citation and

internal quotation marks omitted). “When reviewing a district

court’s exercise of discretion, we will reverse only if there is no

reasonable basis for the district court’s decision.” Id.

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ANALYSIS

I. Expert Witness Disclosure

A. Failure to Disclose Urban as an Expert Witness

¶13 Solis challenges the trial court’s conclusion that she did

not timely disclose her intent to rely on Urban as an expert

witness. In doing so, Solis acknowledges “there was no specific

expert disclosure” but contends she nevertheless complied with

the disclosure requirements because “the substance of Officer

Urban’s opinion was fully disclosed.”

¶14 The applicable version of rule 26 of the Utah Rules of

Civil Procedure3 sets forth requirements for the disclosures to be

made during the course of discovery. Subsection (a)(1) requires

disclosure of “the name and, if known, the address and

telephone number of each individual likely to have discoverable

information supporting *a party’s+ claims or defenses.” Utah R.

Civ. P. 26(a)(1) (2011). Subsection (a)(3) requires disclosure of

expert testimony, and provides, “A party shall disclose to other

parties the identity of any person who may be used at trial to

present evidence under Rules 702, 703, or 705 of the Utah Rules

3. The Utah Rules of Civil Procedure were amended in 2011, but

the amendments are applicable only to cases filed on or after

November 1, 2011. See Utah R. Civ. P. 1 advisory committee note

(“Due to the significant changes in the discovery rules, the

Supreme Court order adopting the 2011 amendments makes

them effective only as to cases filed on or after the effective date,

November 1, 2011, unless otherwise agreed to by the parties or

ordered by the court.”). Because this action was filed on

September 28, 2011, the amendments do not apply to this case.

Accordingly, we refer to the pre-amendment version of the rules

throughout this decision.

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of Evidence.” Id. R. 26(a)(3)(A).4 Accordingly, “[a] party must

disclose to an opposing party the identity of any witness who

may testify as an expert at trial.”5 Brussow v. Webster, 2011 UT

App 193, ¶ 3, 258 P.3d 615.

¶15 In Pete v. Youngblood, 2006 UT App 303, 141 P.3d 629, this

court considered whether a party could rely on expert testimony

from a witness who was disclosed only as a fact witness. Id.

¶¶ 11–18. A plaintiff in a medical malpractice action designated

several treating physicians as fact witnesses but did not

designate any expert witnesses before the discovery cut-off

deadline. Id. ¶ 5. The defendant later moved for summary

judgment based on the plaintiff’s failure to establish a prima

facie case because she had not designated an expert to opine on

the relevant standard of care and breach of that standard. Id. ¶ 6.

In response, the plaintiff offered an affidavit from one of her

treating physicians addressing the standard of care and breach

issues. Id. But because the plaintiff did not designate the treating

physician as an expert, the trial court struck the affidavit and

granted summary judgment. Id. On appeal, the plaintiff argued

she had substantially complied with rule 26 by identifying the

treating physician as a fact witness and by providing the

defendant with copies of the medical records. Id. ¶ 10. This court

rejected the plaintiff’s argument and held that she “was required

under rule 26(a)(3)(A) . . . to identify [the treating physician] as a

person who may be used at trial to present expert testimony.” Id.

4. Rules 702, 703, and 705 of the Utah Rules of Evidence govern

the admission of expert witness testimony, that is, the testimony

of witnesses who are qualified to offer opinions based on

scientific, technical, or other specialized knowledge. Utah R.

Evid. 702; id. R. 703; id. R. 705.

5. This court recently summarized these rules governing the

disclosure of witnesses in Hansen v. Harper Excavating, Inc., 2014

UT App 180, ¶ 16, 332 P.3d 969.

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¶ 15. Furthermore, the Pete court concluded that the “trial court

did not abuse its broad discretion by striking [the treating

physician’s+ affidavit.” Id. ¶ 18.

¶16 Since Pete, this court has consistently held that disclosing

a treating physician as a fact witness does not satisfy the

requirements of rule 26(a)(3)(A). See, e.g., Hansen v. Harper

Excavating, Inc., 2014 UT App 180, ¶ 17, 332 P.3d 969 (“Hansen’s

disclosure of his intent to call treating physicians as fact

witnesses is not sufficient to allow the admission of their expert

opinions.”); Ladd v. Bowers Trucking, Inc., 2011 UT App 355, ¶ 13,

264 P.3d 752 (“*I+n order for any of Ladd’s treating physicians to

offer [expert] testimony as to causation, Ladd was required to

designate them as expert witnesses.”). This court reached the

same conclusion in a different context in Warenski v. Advanced RV

Supply, 2011 UT App 197, 257 P.3d 1096. The plaintiff in Warenski

designated a fact witness and then sought to rely on that same

witness’s expert opinion regarding the installation of a part on

an all-terrain vehicle. Id. ¶¶ 2, 8. In affirming summary judgment

against the plaintiff, the Warenski court explained that if the

plaintiff wished to rely on that witness’s expert opinion, he was

“required to take the necessary steps to properly designate [the

witness+ as an expert witness.” Id. ¶ 9.

¶17 Here, Solis does not dispute that she failed to designate

Urban as an expert witness. As a consequence of this failure, the

trial court correctly determined that she did not comply with

rule 26(a)(3)(A). Notwithstanding this, Solis asserts that her

initial disclosures informed Defendants that she “intended to

present at trial the facts concerning the Highway Patrol’s

accident reconstruction” and “*i+f that accident reconstruction

contained any opinions, . . . that [Solis] intended to rely on those

opinions.” (Emphasis omitted.) But even if Urban was arguably

disclosed as one of the officers or agents of UHP “involved with

the investigation of the incident [and] reconstruction of the

incident,” those UHP officers were disclosed only as witnesses

likely to provide “facts and information about the incident.”

Solis’s initial disclosures did not describe these UHP officers as

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witnesses who may be used at trial to present evidence involving

scientific, technical, or other specialized knowledge. See Utah R.

Civ. P. 26(a)(3)(A) (2011); see also Utah R. Evid. 702(a) (providing

that qualified experts “may testify in the form of an opinion . . . if

the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to

determine a fact in issue”).

¶18 Solis also claims that because her initial disclosures

included the UHP diagram, Defendants were notified of her

intent to rely on Urban’s opinions contained therein. Notations

on the diagram indicate it was drawn by “M. Urban.” But similar

to Pete, where the plaintiff disclosed her treating physician as a

fact witness and delivered the medical records from that treating

physician to the defendant, 2006 UT App 303, ¶ 16, Solis’s

disclosure of the UHP diagram does not satisfy her obligation

under rule 26(a)(3)(A) to “identi*fy+ . . . any witness who may

testify as an expert at trial,” Brussow, 2011 UT App 193, ¶ 3.

¶19 Finally, Solis contends the advisory committee notes to

the current version of rule 26 support her substance-over-form

argument. Solis relies on the language stating that rule 26(a) is

“not intended to elevate form over substance.” See Utah R. Civ.

P. 26 advisory committee notes (2014). Even if we were to

consider these notes in applying the prior version of rule 26 to

this case, see supra note 3, the advisory committee notes also state

that “all that *the disclosure rules+ require is that a party fairly

inform its opponent that opinion testimony may be offered from

a particular witness.” Utah R. Civ. P. 26 advisory committee

notes (2014). By disclosing UHP officers as fact witnesses and by

omitting Urban from her expert witness list, the substance of

Solis’s disclosures did not “fairly inform *Defendants+ that

opinion testimony may be offered from *Urban+.” See id. We

therefore affirm the trial court’s determination that Solis did not

comply with rule 26(a)(3)(A) with respect to Urban when she

failed to designate him as an expert witness.

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B. The Exclusion of Urban’s Expert Testimony

¶20 Solis contends that despite her failure to designate Urban

as an expert witness, the trial court exceeded its discretion in

excluding his testimony6 and the unredacted diagram.7

Specifically, Solis argues that her failure to disclose was harmless

and should be excused because Urban’s opinion was explored

during his deposition, where Defendants cross-examined him.

Defendants counter that Solis’s failure was harmful because had

they known Solis would later rely on Urban’s expert opinion,

they would have asked Urban more questions about his

qualifications and the basis of his opinion during the deposition.

¶21 Rule 37(f) instructs that “*i+f a party fails to disclose a

witness, document or other material as required by Rule 26(a) or

Rule 26(e)(1),” “that party shall not be permitted to use the

witness, document or other material at any hearing unless the

failure to disclose is harmless or the party shows good cause for

the failure to disclose.” Utah R. Civ. P. 37(f) (2011) (emphasis

6. Solis also argues she was prejudiced because the jury would

have given Urban’s testimony more weight as he was a

“neutral,” non-retained expert. Because we determine that the

trial court did not err, we need not address this argument.

7. Defendants also raise a counter-argument on appeal that the

entire diagram was inadmissible under Utah Code section 41-6a-

404. See Utah Code Ann. § 41-6a-404(4)(a) (LexisNexis 2010)

(“*A+ccident reports . . . may not be used as evidence in any civil

or criminal trial arising out of an accident.”). Because Defendants

have not demonstrated they raised this argument before the trial

court or filed a cross-appeal from the trial court’s decision to

admit the redacted diagram, we do not consider this argument.

See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801;

Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 49, 70

P.3d 904.

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added).8 Additionally, “the court on motion may take any action

authorized by Subdivision (b)(2),” including prohibiting a party

from introducing designated matters into evidence. Id. R. 37(f),

(b)(2). Thus, “Utah law mandates that a trial court exclude an

expert witness . . . disclosed after expiration of the established

deadline unless the district court, in its discretion, determines

that good cause excuses tardiness or that the failure to disclose

was harmless.” Townhomes at Pointe Meadows Owners Ass’n v.

Pointe Meadows Townhomes, LLC, 2014 UT App 52, ¶ 13, 329 P.3d

815 (citation and internal quotation marks omitted); see also Dahl

v. Harrison, 2011 UT App 389, ¶ 22, 265 P.3d 139 (“*T+he sanction

of exclusion is automatic and mandatory unless the sanctioned

party can show that the violation of rule 26(a) was either

justified or harmless.”).9

¶22 The trial court in this case followed rule 37(f) in ruling

that because she failed to disclose Urban as an expert, Solis

would not be permitted at trial to introduce Urban’s expert

8. Rule 26(e)(1) requires a party to supplement disclosures “if the

party learns that in some material respect the information

disclosed is incomplete or incorrect and if the additional or

corrective information has not otherwise been made known to

the other parties during the discovery process or in writing.”

Utah R. Civ. P. 26(e)(1) (2011). Therefore, even if Solis did not

know at the time of her expert witness disclosures that she

wanted to rely on Urban’s expert opinion, she had a duty to

supplement once she realized she would seek to use Urban as an

expert witness at trial.

9. This court has recently disavowed any implication from prior

case law that the trial court must make a finding of willfulness

before it strikes an untimely expert report. See R.O.A. Gen., Inc. v.

Dai, 2014 UT App 124, ¶ 11 & n.5, 327 P.3d 1233; see also Callister

v. Snowbird Corp., 2014 UT App 243, ¶ 29 n.8, 337 P.3d 1044

(same).

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opinion or any document disclosing his opinion. The trial court

did not, however, analyze on the record whether Solis showed

good cause for her failure to designate Urban as an expert

witness or whether Solis’s failure was harmless.

¶23 On appeal, Solis asserts the trial court should have

deemed her failure harmless because Defendants effectively

cross-examined Urban during his deposition and therefore had

notice of his opinion and Solis’s intent to rely on it. But this court

has previously stated,

“Formal disclosure of experts is not pointless.

Knowing the identity of the opponent’s expert

witnesses allows a party to properly prepare for

trial. . . . The failure to disclose experts prejudic[es

a defendant] because there are countermeasures

that could . . . be[] taken that are not applicable to

fact witnesses, such as attempting to disqualify the

expert testimony . . . , retaining rebuttal experts,

and holding additional depositions to retrieve the

information not available because of the absence of

a report.”

Pete v. Youngblood, 2006 UT App 303, ¶ 17, 141 P.3d 629 (first and

third omission in original) (emphasis omitted) (quoting Musser v.

Gentiva Health Servs., 356 F.3d 751, 757–58 (7th Cir. 2004)).

¶24 Because rule 26(a)(3)(A) entitled Defendants to notice of

Solis’s intent to call Urban to offer an expert opinion regarding

which vehicle left the skid mark on the interstate, we are not

persuaded the trial court exceeded its discretion by declining to

find Solis’s failure harmless. In light of this court’s recognition

that the “manner in which discovery is conducted concerning a

fact witness and an expert is quite different,” id., Defendants’

cross-examination of Urban during his deposition does not

necessarily render harmless Solis’s failure to designate him as an

expert. At oral argument, Defendants’ counsel explained they

would have explored Urban’s credentials as an expert and the

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foundation for his opinion. Additionally, Defendants would

have taken the depositions of two other officers on whom Urban

relied in forming his opinion. We therefore cannot say the trial

court exceeded its authority in concluding that Solis’s failure to

designate was not harmless and in excluding all forms of

Urban’s expert opinion.10

II. Request for Deadline Extension

¶25 Last, Solis argues the trial court should have granted her

request to extend the discovery deadlines so she could amend

her expert designation list to include Urban. In general, “*t+rial

courts have broad discretion in managing the cases assigned to

their courts.” Posner v. Equity Title Ins. Agency, Inc., 2009 UT App

347, ¶ 23, 222 P.3d 775 (alteration in original) (citation and

internal quotation marks omitted). We therefore do not disturb

their decisions absent an abuse of discretion. Callister v. Snowbird

Corp., 2014 UT App 243, ¶ 9, 337 P.3d 1044.

¶26 This court considered whether a trial court exceeded its

discretion in denying a plaintiff’s motion to extend the deadline

for disclosing expert witnesses in Townhomes at Pointe Meadows

Owners Ass’n v. Pointe Meadows Townhomes, LLC, 2014 UT App

52, 329 P.3d 815. In that case, the defendants filed a motion for

10. Solis also argues that the UHP diagram should have been

admitted because it was admissible as a public record under rule

803(8) of the Utah Rules of Evidence. But Solis does not identify

any authority for the proposition that admissible evidence under

rule 803(8) is somehow exempt from the consequences of a

failure to disclose. We therefore do not consider this argument

further. See Utah R. App. P. 24(a)(9) (requiring briefs to contain

reasoned analysis based on relevant legal authority); see also

Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (refusing to “assume

an appellant’s burden of argument and research” (citation and

internal quotation marks omitted)).

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summary judgment, arguing that expert testimony was required

for the plaintiff to establish its claims. Id. ¶ 6. In response, the

plaintiff moved to extend the discovery deadlines and provided

an expert affidavit with a preliminary report. Id. ¶ 7. The trial

court denied the plaintiff’s motion, struck the affidavit and

report, and granted summary judgment. Id. ¶ 8. In denying the

motion to extend the expert disclosure deadline, the trial court

rejected the plaintiff’s claim that it had reasonably relied on a

stipulation to extend the disclosure deadlines because the

stipulation existed with some of the defendants while the

plaintiff had no such agreement with other defendants. Id. ¶ 10.

The trial court also found that the plaintiff had procrastinated.

Id. ¶ 11. On appeal, this court ruled that the trial court did not

abuse its discretion, based on the plaintiff’s pattern of delay and

its failure to demonstrate a reasonable justification for its

noncompliance with the case management order. Id. ¶ 12.

¶27 Here, the trial court determined that Solis failed to

designate Urban as an expert witness as required by rule

26(a)(3)(A) and did not extend the discovery deadlines for Solis

to amend her rule 26 disclosures. In her opening brief, Solis

asserts that despite the notation on the UHP diagram that Urban

was the person who drew it, she did not learn until Wright’s

deposition that Urban was the person most knowledgeable

about the diagram. Solis asserts that this revelation later led her

to depose and “solicit*+ from Officer Urban the exact testimony

[she] sought to present at trial.” The fact that Solis overlooks is

that the depositions of both UHP officers took place before Solis’s

expert disclosures and reports were due.11 Consequently, Solis

was aware of Urban’s expert opinion on the origin of the 248-

11. Wright was deposed in May 2012, and Urban’s deposition

took place on August 17, 2012. Solis’s expert disclosures and

reports were due more than a month later, on September 27,

2012.

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foot skid mark before her deadline to disclose expert witnesses.

In other words, Solis could have designated Urban as an expert

witness in her disclosures before the deadline, and thereby

complied with rule 26(a)(3)(A). Given these facts and Solis’s

inability to demonstrate a reasonable justification12 for her failure

to include Urban among her designated expert witnesses, we are

not convinced the trial court exceeded its discretion in declining

to extend the deadline for expert disclosure.

CONCLUSION

¶28 In sum, the trial court did not err in concluding that Solis

failed to timely designate Urban as an expert witness. The trial

court properly exercised its discretion in excluding all references

to Urban’s opinions and in denying Solis’s request to extend the

disclosure deadlines. We therefore affirm.

12. Solis argues that her good cause for failing to include Urban

in her expert designation is that she “in good faith considered

Officer Urban a fact witness not an expert witness.”

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