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Utah Attorney General Torts Team Obtains No-Cause Verdict in Alleged High School Weightlifting Incident

 

On April 28, 2023, after a four-day trial and over seven hours of deliberations, a jury returned a no-cause verdict for Murray City School District in a personal injury case brought by a former high school student who alleged that he sustained an inguinal hernia as a result of participating in an introductory weight lifting course in October 2017. The verdict was 7-1. Plaintiff August Thompsen alleged a negligence claim against Murray City School District. He claimed that he was attempting a “one-rep max” deadlift in class and that his teacher, Danielle Humphries, forced him to lift more weight than he was able to safely handle. Mr. Thompsen first reported to the emergency room four days after the alleged incident with a bulge in his groin area and reporting that both his abdominal pain and the bulge appeared one day prior to his hospital visit (or three days after the alleged incident). Medical imaging did not show any obvious inguinal hernia. He followed up with a general surgeon the next day (five days post-alleged incident) who diagnosed a possible inguinal hernia and opted to do a laparoscopic repair. In surgery, the surgeon did not find a significant inguinal hernia, but instead found a “dimple” in the abdominal wall suggesting possibly the start of an inguinal hernia.

 

Mr. Thompsen had no witnesses in discovery or at trial to corroborate his story. Murray City School District did not have any report of the alleged incident until almost a week after the subject class and was unable to locate any witnesses to corroborate Mr. Thompsen’s version of events.

 

At trial, Mr. Thompsen’s attorneys opted to call Ms. Humphries as the first witness, who testified that she had no memory of the class when the alleged incident occurred and that she had no reason to force Mr. Thompsen to lift any amount of weight for his “one rep max.” The defense focused on evidence that corroborated her version of the story. This included that her training, course curriculum, and the Utah Core Standards for the weightlifting class. None required Mr. Thompsen to lift any amount of weight and, like the class, the focus was on proper form and technique as well as safety. Additionally, the syllabus for the course made it clear to parents and students that all injuries needed to be immediately reported to the teacher. Ms. Humphries testified as to how the course had progressed for almost eight weeks from the start of school to the day of the alleged incident and explained how each class was structured and that the focus of the course was on proper and safe technique. Part of the defense’s presentation involved her demonstrating for the jury the proper and safe technique for a deadlift.

 

Mr. Thompsen’s attorneys then called the treating surgeon (Dr. Roderick McKinlay) who testified as to his treatment and offered testimony as to the general causes of inguinal hernias. The defense had Dr. McKinlay confirm his understanding as to the events leading up to Mr. Thompsen seeking medical treatment, namely that he was experiencing constipation and straining to go to the bathroom just prior to the groin bulge appearing one day before presenting to the emergency room.

 

Mr. Thompsen’s liability expert, Professor Robert Sands, testified that a “one rep max” for the deadlift was not safe or even appropriate for a weightlifter like Mr. Thompsen. He relied on a handful of academic articles (including one from a weightlifting organization in Australia) to support his testimony. He opined that Ms. Humphries did not run the class properly. At one point he told the jury that the teachers at Murray City High School “had puss for brains”.

 

Mr. Thompsen then presented his retained medical expert, Dr. Steven Mintz, who opined that the weightlifting class had caused the inguinal hernia. In his testimony, he related to the jury a chain of events that contradicted what was documented in the medical records and what Mr. Thompsen had testified in deposition in October 2019. Defense was effective in discrediting Dr. Mintz by pointing out this contradiction and evoked a strong emotional reaction from Dr. Mintz.

 

Finally, attorneys called Mr. Thompsen as the last witness in his case-in-chief. Mr. Thompsen related that he developed a bulge in his groin immediately after the weightlifting class and, despite course requirements that all injuries be immediately reported, opted not to report it to his teacher because he was “in a hurry”. He testified that he continued attending school, including another weightlifting class, and still did not report the injury. He testified as to his pain and that he needed additional treatment after complications from the initial surgery. He later required a triple neurectomy. He testified that he was unable to play competitive tennis and needed to take significant time off from school for his treatment. He admitted that he had since made a full recovery and was in college where he was pursuing a degree in psychology. On cross examination, the defense was effective in discrediting Mr. Thompsen’s testimony as to what led him to seek medical treatment by demonstrating that his trial testimony contradicted both his deposition testimony in 2019 and the chain of events documented in the medical records. Mr. Thompsen’s attorneys were unable to effectively rehabilitate him after cross examination.

 

The defense started its case in chief on the afternoon of the second day of trial. The defense called Murray High School Physical Education Department Chair Katie Jepson who testified as to the curriculum for the course, the training requirements to become a physical education teacher, how Ms. Humphries taught the course, and vouched for Ms. Humphries. The defense followed up her presentation with its liability expert, Professor Todd Seidler of the University of New Mexico who opined that Ms. Humphries properly taught and supervised the course. The defense then presented its retained medical expert, Dr. Kyle Dunning, a general surgeon in Ogden who was a surgeon in the U.S. Army and had performed thousands of inguinal hernia repairs. Dr. Dunning testified that inguinal hernias are not “injuries” per se, but a medical condition that develops over time and as a result of multiple factors. He testified that a single incident does not generally cause an inguinal hernia. Pointing to the medical records in evidence, he testified that Mr. Thompsen did not relate the alleged weightlifting incident to any of his treaters (and only in passing to a nurse).

 

The trial concluded with testimony from Dr. Daniel Vargo, a hernia specialist, at the University of Utah who largely corroborated the opinions of Dr. Dunning as to general causation of inguinal hernias. Dr. Vargo performed the triple neurectomy on Mr. Thompsen in July 2018. As a treater, Dr. Vargo could not opine as to the causation of Mr. Thompsen’s hernia, but testified that the causes of inguinal hernias remain unclear and that it is unclear if a single incident causes inguinal hernias.

 

Mr. Thompsen claimed medical specials of just over $100,000. Mr. Thompsen’s attorneys asked the jury to award between $350,000 and $600,000.

 

Michael Driggs, Chris Thresher, and Alan Tucker represented Mr. Thompsen at trial. Michael Stahler and Adam Wentz represented Murray City School District and were assisted by Paralegal Katie Lawyer as well as Ruby Yannie, Samantha Bernards, and Shaine Taylor. The Utah Division of Risk Management insures Murray City School District, as well as many public-school districts in the state.

 

The Utah Defense Lawyers Association (UDLA) is a Utah non-profit organization serving the interests of Utah lawyers principally involved in the defense of civil litigation. UDLA serves its members by promoting professional development through the exchange of information, ideas, and litigation techniques to enhance the knowledge and improve the skills of Utah civil defense lawyers.

DRI is the leading international membership organization of lawyers who represent business in civil litigation. DRI is committed to enhancing the skills, effectiveness, and professionalism of defense lawyers, anticipating and addressing issues germane to defense lawyers and the civil justice system, promoting appreciation of the role of the defense lawyer, improving the civil justice system, and preserving the civil jury.

UDLA and DRI agree with the Utah Supreme Court that access to justice is an area of national concern. But for several reasons, both UDLA and DRI are concerned the proposed changes to Rule 5.4 will erode the quality of legal representation available to Utah legal consumers while failing to meaningfully address individuals’ abilities to afford legal service.

First, there is little evidence that nonlawyer law firm ownership, fee sharing, and entity regulation licensing reforms, if implemented, would increase access to justice. In jurisdictions where nonlawyer ownership of law firms exists, it has not accomplished similar policy goals. Similarly, it is not clear, regardless of the regulatory sandbox framework proposed, that for-profit legal technology services would in any way assist the disadvantaged with legal representation.

In the U.K. and Australia (or in the District of Columbia which has had a relaxed version of Rule 5.4 for many years), where reforms similar to those under consideration here have been enacted, there is no evidence the changes have had any impact whatsoever on the access to justice crisis. Instead, evidence shows the typical alternative business structure in the U.K. competes with the same types of law firms that had been servicing the fee-paying public long before the U.K. recognized nonlawyer ownership, as opposed to providing services to disadvantaged clients. Notably, a recent study concluded that the use of alternative business structures in the U.K. and Australia had been accompanied by no measurable improvement of those countries’ access to justice needs. Robinson, Nick, When Lawyers Don’t Get All the Profits: Non-Lawyer Ownership.

On the contrary, the changes might lead to a decrease in access to justice. Big business and tech could tailor legal services towards individuals and entities most likely to minimize investment risk while avoiding expenses incurred through traditional legal providers. That shift could in turn result in a substantial decrease in pro bono work. Currently, many profitable firms subsidize their attorneys’ pro bono work by permitting or even requiring attorneys to meet their billable requirements through pro bono representation of disadvantaged clients. But under the proposed changes, non-lawyer owned entities would have little incentive to do this given they would not be subject to the same ethical or professional standards to which members of the Utah bar are held. Indeed, the proposed changes do not establish any duties on non-lawyers, let alone duties to provide disadvantaged groups with access to legal services.

UDLA and DRI are also concerned that these changes may exacerbate the decline of access to legal services for rural Utahns. Unlike lawyers along the Wasatch Front, many “country lawyers” cannot afford to specialize in only one type of law and instead offer services across the legal spectrum, from criminal defense, to preparing wills and trusts, to defending their clients in a range of civil disputes. The proposed changes may alter this balance by shifting certain types of work (for example, estate planning) away from the rural lawyers and into the hands of corporations in far-off cities. In doing so, country lawyers may find they can no longer afford to practice law in rural areas, leaving entire areas of Utah without access to any local legal practitioner (even today, there are counties in Utah with few, if any, lawyers living in their boundaries). While the individual who has procured discounted estate planning might be said to have benefited from such a situation, the same individual might not find the tradeoff worth it next time they find themselves in need of representation not easily provided by a smartphone app.

Second, UDLA and DRI are concerned the proposed changes would erode the ethical protections the Utah Rules of Professional Conduct currently ensure. Although the committee charged with addressing the rule changes insists a Utah lawyer’s ethical obligations would theoretically remain unchanged should the new rules be adopted, this would be practically impossible in practice. Under the current system, legal services providers are owned and controlled by the lawyers representing the client. Thus, while outside entities (like insurance companies) may pay a lawyer’s legal fees or litigation expenses, the case is always ultimately controlled by the lawyer and client, to whom the lawyers owe an ethical, non-delegable duty.

But a lawyer may not be practically capable of performing this duty should ultimate control be delegated to a non-lawyer. When the outcome of a case is driven by profit as opposed to client benefit, business interests will often win out even if the client is disadvantaged as a result. One possible example would be a lawyer who is incentivized to seek medical interventions for his client to increase claimed special tort damages, even if that attorney (or the client’s treating doctor) believes those medical interventions to be unnecessary. A lawyer employed in an environment that prioritizes financial outcomes over the client’s interest would potentially be forced to jeopardize their job should their ethical duty to put their client’s interest first conflict with their employer’s business interest.

Utah’s Rules of Professional Conduct reflect the core values of our profession, and they are designed to protect the public whom we, as licensed Utah attorneys, are all privileged to serve. As attorneys, we are sworn to serve as key members of a legal system on whom our society relies for justice and fairness. Lawyers must complete a rigorous program of education just to be permitted to sit for a bar examination. Our bar admission system is designed to test knowledge and competency, determine character and fitness to practice law, and assess adherence to a prescribed set of rules of professional conduct throughout an attorney’s tenure. This system not only serves to protect the public from untrained and unscrupulous would-be practitioners, but it also far surpasses what is required for a typical business. Fundamental change to our profession should not compromise our core values and enable profit-seeking by entrepreneurs who are unencumbered by our rules of ethical responsibility.

Finally, consequences to the practicing bar should be a major concern of any access to justice review. The impact of changing law firm ownership and fee sharing rules would bring major upheaval to the practice of law. The effect of the ownership, fee sharing, and entity regulation recommendations would not simply involve channeling legal practice revenues from lawyers to private investors or legal tech companies. These revenue shifts would likely also result in both the Utah State Bar and local bar organizations realigning their focuses away from service to and regulation of practicing attorneys and toward the novel (and as yet unknown) consequences of these fundamental changes to Utah legal practice. This would represent a profound disruption to the traditional work of Utah Bar and local bar associations, which could better work through the current regulatory framework to encourage and support licensed attorneys’ efforts to deploy technologies and non-traditional legal services directly, instead of through intermediary business and technology firms.

In sum, UDLA and DRI are concerned that the proposed rule changes will not lead to an increase in access to justice and would likewise negatively impact both the legal profession and the profession’s reputation.

Here you will find a link to the CLE we had as well as the power point and PDF. 

COVID-19 Resources.pdf

COVID 19 audio.m4a

Covid-19.pptx

audio_only.m4a

Thank you again for attending our 2019 Annual Meeting. For your convenience, we have links below for all the power points and documents referenced at the meeting. For additional Questions about materials, contact Michelle Barrus at udlaxd@gmail.com

De-Escalation of Disputes (UDLA).doc

2018-2019 Appellate Review.pptx

ETHICS-CLE-5-3 Linda Smith.pptx

Preparing for the Verdict.pptx

Transforming Your Practice Powerpoint State Defense Meeting 2019.pptx

Thank you to all of you who attended our luncheon. Below is a link to the slides from Alex Leeman's excellent presentation. If you have anymore questions, please don't hesitate to contact Michelle Barrus at udlaxd@gmail.com

CLE - Discovery Do's and Don'ts.pdf

UDLA Weston Opening Closing Statements FINAL 04 28 17.pptx

PP - UDLA Annual Meeting.pptx

Below is a list of bills UDLA is keeping our eye on. Click here to go to the Legislative page and you can sign up to track bills for yourself. 

HB 140	Motorist Insurance Amendments	Modifies the Insurance Code to remove the option of an insured to reject uninsured or underinsured coverage
HB 144	Administrative Law Judge Qualifications	Requires an individual to have a law degree in order to serve as an administrative law judge; and exempts current administrative law judges from the requirement to be a law school graduate.
HB 153	Uninsured and Underinsured Motorist Coverage Requirements	Disallows a person from rejecting uninsured and underinsured motorist coverage if that person: employs an employee; and the employee drives a vehicle insured by the employer.
HB 155	Driving Under the Influence and Public Safety Revisions	Reduces BAC for DUI to .05
HB 157	Homeowners Association Revisions (My favorite one so far.)	Provides that a condominium or community association shall comply with certain requirements before bringing a legal action against a declarant related to a period of declarant control or period of administrative control.
HB 170	Small Claims Amendments	Modifies a provision regarding a motor vehicle accident.
H.B. 77	5Th District Judge	Adds a Judge to the 5th District Court
H.B. 79	Private Attorney General Doctrine	Repeals a provision that disavows the private attorney general doctrine
H.B.90	Insurance Opioid Regulation	This bill requires commercial insurers, the state Medicaid program, workers' compensation insurers, and public employee insurers to implement policies to minimize the risk of prescribing certain controlled substances
HB0202	Trespass Amendments	Enacts provisions related to trespass by a guest in a residence
SB0098	Excess Damages Claims	Establishes a process for addressing personal injury claims to the extent that they exceed a statutory limit.
SB0111	Unmanned Aircraft Amendments	This is a fairly significant bill. It will be interesting to see how homeowners insurance policies, and coverage disputes, will address this subject.

The Utah Court of Appeals affirmed the district court ruling in Willis v. DeWitt stating Utah Code Section 78B-2-225 (3)(a) is a statute of repose and therefore may not be tolled by application of a discovery rule. The contract claims were not brought within 6 years of completion of construction as required by statute, and are thus time barred. Full opinion linked here. 

A Summit County Jury found that the Defendant was not negligent arising from a collision that occurred with the Plaintiff during an adult hockey game in the Park City Hockey no check league.  Plaintiff was on a breakaway towards the goal.  Defendant was on defense and attempted to establish a position between Plaintiff and the goal and placed his stick to attempt to block the Plaintiff's shot.  He was unable to block the puck,  Unfortunately, both players attempted to occupy the same spot of ice at the same time.  As a result of the collision, both fell to the ice.  Defendant had a laceration to his cheek from Plaintiff's stick.  Plaintiff received 2 cracked ribs and, a sprained AC Joint. Defendant was called for a check, a minor penalty.  The league rules specifically state that playing the puck rather than the body is the rule.  Although there is incidental body contact, if players can avoid body conduct, they are required to do so.  Plaintiff hired the State Supervisor of referees to state that Defendant should not have gone so aggressively towards Plaintiff's position, particularly if Plaintiff was shooting the puck.  The video of the game had been sent to the league administrator, who reviewed it and did not escalate the call on the ice. 


The interesting aspect of this case, was Judge Harris's decision to try it under a simple negligence standard rather than a reckless standard.  So, the jury was instructed with the MUJI negligence instruction with a couple of interesting modifications.  First, if the activity was within the ordinary range of activity of a no check league, then that was evidence that would not support a negligence finding.  However, the jury was also instructed that a violation of  a safety rule can be evidence of negligence, but it is not required.  Because Utah does not have a specific statute, rule or case precedence on using the Reckless standard, the court determined that the default was negligence.  A take away is if you are going to rely upon the referees in the game and the players in a specified recreational activity, to be safe, you should designate them as unretained experts so that they can specifically state that such activity is not out of the ordinary.  Wisconsin has a statute specifically applying the reckless standard to apply to recreational/sporting activities. 

It was interesting to try this as a negligence case and argue that an inadvertent collision was not negligence. 


If you have any questions, feel free to let me know. 

PETERSEN & ASSOCIATES
Lloyd R. Jones,
Attorney
(801)  517-3032