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Defense Expert Disclosures

26 Nov 2013 9:38 AM | Michelle Barrus (Administrator)

Defense Expert Disclosures in Personal Injury Cases After Harris v. ShopKo

By Tyler V. Snow

November 25, 2013

I.          Harris I and the “asymptomatic on the date of the accident” standard with respect to preexisting conditions

            In September 2011, the Utah Court of Appeals released its opinion in Harris v. ShopKo, 2011 UT App 329, 263 P.3d 1184 (Harris I), a case that was troubling to many in the Utah defense community.  As summarized by the Utah Supreme Court in Harris v. ShopKo, 2013 UT 34, 308 P.3d 449 (Harris II), in Harris I the Utah Court of Appeals had held that, “because Ms. Harris’s preexisting conditions were asymptomatic on the date of the accident, ShopKo was not entitled to a jury instruction permitting the jury to allocate some portion of the damages to Ms. Harris’s preexisting conditions.”  Harris II, 2013 UT 34, ¶ 2 (emphasis added).  

Short of an admission by a plaintiff, defense counsel is rarely, if ever, able to turn up evidence that the plaintiff’s preexisting conditions were symptomatic “on the date of the accident.”  The court’s holding in Harris I effectively meant that defendants could no longer apportion at least some of a plaintiff’s injuries to his or her preexisting conditions.

II.        Harris II and the defense’s burden of establishing that a plaintiff’s injuries can be apportioned between preexisting conditions and the accident

            Fortunately, in June 2013 the Utah Supreme Court issued its opinion in Harris II and restored balance to this issue of apportioning damages.  The court rejected what it termed the “narrow, bright-line approach” and “the wrong legal standard” that had been applied by the Utah Court of Appeals in Harris IHarris II, 2013 UT 34, ¶¶ 17, 22. 

Instead, the Utah Supreme Court reviewed its prior holdings and stated that “[t]hese cases highlight the fundamental aim in deciding damages: ‘to restore the injured party to the position he would have been in had it not been for the wrong of the other party.’”  Id. ¶ 25 (quoting Park v. Moorman Mfg. Co., 241 P.2d 914, 920 (Utah 1952)).  “Proximate cause plays a central role in determining the precise extent of . . . what the plaintiff’s position would have been absent the defendant’s negligence.”  Id. (citations omitted).  Concluding the thought, the court stated that “[a]n asymptomatic preexisting condition may well be an independent contributor to a plaintiff’s pain and injury, which was also proximately caused to some degree by a tortfeasor’s negligence.”  Id. ¶ 26 (citations omitted).

            The court acknowledged that apportioning damages between preexisting conditions on the one hand and accident-related injuries on the other can be difficultundefinedfor parties and jurors.  Id. ¶¶ 27-28.  However, noting that defendants bear the burden of uncertainty in the amount of a plaintiff’s damages, the court held that defendants have the burden to establish that apportionment is possible where there is any uncertainty.  Id. ¶ 28. 

Continuing, the court stated that “expert testimony may be the jury’s only guide as to whether apportionment is proper and, if so, to what extent.”  Id. ¶ 34 (noting that “the average lay juror is ill-equipped to sift through complicated medical evidence and come to a nonspeculative apportionment decision”).  While an expert need not arrive at exact percentages in opining as to apportionment, the expert should “present[] a reasonable range of percentages . . . or a useful nonnumeric description.”  Id. ¶ 38.  “The determinative question is whether the expert testimony has supplied the jury with a nonarbitrary basis for apportioning damages.”  Id.

Model Utah Jury Instruction CV2018 (9/2013) sums up defendant’s burden as set forth in Harris II as follows: “[Name of defendant] has the burden to prove what portion of the [specific harm] to [name of plaintiff] was caused by the pre-existing condition.”  If the jury is unable to make this apportionment, the jury “must conclude that the entire [specific harm] to [name of plaintiff] was caused by [name of defendant]’s fault.”  MUJI 2d CV2018.

III.       Expert disclosures under the “new” Utah Rules of Civil Procedure after Harris II

            The holding in Harris II, in connection with the “new” Utah Rule of Civil Procedure 26, carries significant implications for defendants.  Rule 26 provides that “[t]he party who bears the burden of proof on the issue for which expert testimony is offered shall serve on the other parties the information required by paragraph (a)(4)(A) within seven days after the close of fact discovery.”  Utah R. Civ. P. 26(a)(4)(C)(i) (2013) (emphasis added). 

As expressed above, Harris II imposes on defendants the burden of establishing, by expert testimony, that apportionment is possible between a plaintiff’s preexisting condition and his or her accident-related injuries.  Because defendants bear the burden on this issue, Rule 26 requires defendants to designate such experts “seven days after the close of fact discovery”undefinedi.e., at the same time plaintiff is required to designate his or experts.  Id. 

Under the “old” Rules of Civil Procedure, defense experts were commonly used to rebut the medical causation opinions set forth in the plaintiff’s damages expert reports.  To avoid any issues, however, defendants should now designate their medical causation experts at the same time that the plaintiff designates his or her experts, i.e., “seven days after the close of fact discovery.”  Id.  The plaintiff then has seven days to elect whether to receive a report or a deposition from the defense experts, to be provided within 28 days of the election.  Id.

            The advisory committee note related to the new Rule 26 indicates that the changes to the rule “seek to remedy” the “ever-increasing component of discovery cost.”  See Utah R. Civ. P. 26 adv. comm. note.  Ironically, however, the holding of Harris II in connection with the new Rule 26 may actually result in increased discovery costs.  Prior to adoption of the new rules, the parties often tried to mediate a case after defendants received the plaintiff’s expert disclosures and before defendants produced their expert disclosures.  Now, absent a stipulation to the contrary, defendants will be required to produce expert reports or depositions on the issue of medical causation at the same time that the plaintiff’s expert report or deposition is due.  Thus, at least on the defense side, parties may find that expert discovery is more costly now than it was prior to the adoption of the new rules.


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