UDLA Blog

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.

UDLA and DRI respond to the Utah Task Force Report

Michelle Barrus — Thu, 30 Jul 2020 16:14:11 GMT

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.

COVID 19 and Workers Comp

Michelle Barrus — Sat, 30 May 2020 00:41:49 GMT

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

CLE Utah Task Force Report

Michelle Barrus — Wed, 29 Apr 2020 16:46:29 GMT

audio_only.m4a

2019 Annual Meeting

Michelle Barrus — Thu, 06 Jun 2019 21:50:10 GMT

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

Do's and Don'ts of Discovery Objections Slides

Michelle Barrus — Wed, 05 Dec 2018 16:01:46 GMT

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

Power Points From Annual Meeting

Michelle Barrus — Tue, 02 May 2017 17:38:38 GMT

UDLA Weston Opening Closing Statements FINAL 04 28 17.pptx

PP - UDLA Annual Meeting.pptx

2017 Legislative Session

Michelle Barrus — Thu, 02 Feb 2017 17:46:09 GMT

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	5^Th District Judge	Adds a Judge to the 5^th 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.

Willis v. DeWitt

Michelle Barrus — Sat, 06 Jun 2015 04:48:17 GMT

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.

Inadvertent Collision Case

Michelle Barrus — Mon, 02 Feb 2015 20:52:13 GMT

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

Post Judgment interest rates

Michelle Barrus — Thu, 08 Jan 2015 20:46:16 GMT

*Notice of the 2015 post judgment interest rates, Utah Code Ann. 15-1-4, which are:

The general post-judgment interest rate for 2015 is 2.27%.

The post-judgment interest rate for judgments under $10,000 in actions regarding the purchase of goods and services is 10.27%. Hyperlink can be found below

http://www.utcourts.gov/ resources/intrates/ interestrates.htm

*A second post-judgment interest rate may also be news as it went into effect in May 2014 and it is found at 15-1-4(3)(b):

Except as otherwise provided by law or contract, all final judgments under $10,000 in actions regarding the purchase of goods and services shall bear interest at the federal post judgment interest rate as of January 1 of each year, plus 10%. Hyperlink below.

http://le.utah.gov/~code/ TITLE15/htm/15_01_000400.htm

Latest Defense Win

Michelle Barrus — Thu, 08 Jan 2015 20:43:17 GMT

Terry Rooney and Brad Blackham of Snow Christensen & Martineau recently obtained a unanimous no cause jury verdict in a medical malpractice case. Terry and Brad represented the University of Utah Hospitals and Clinics. Plaintiff Ella Turner was represented by Mike Worel and Colin King. Plaintiff presented evidence of $8 million in special damages and requested an additional $8 million in general damages.

Latest Defense Win

Michelle Barrus — Thu, 10 Jul 2014 03:14:22 GMT

Bradley W. Madsen and S. Grace Acosta of the firm Scalley Reading Bates Hansen & Rasmussen, PC, recently obtained a defense verdict on behalf of Sunpeak Association. . The defendant, Sunpeak Association, is an incorporated Homeowners Association of approximately 380 homes located in Park City, Utah. The case was brought by a closely held corporation that owned one of the properties within the Sunpeak community. The case was tried before the Honorable Ryan M. Harris

The plaintiff alleged that Sunpeak Association had violated the terms of the Community Covenants and Restrictions by failing to enforce, or improperly enforcing, multiple provisions. The plaintiff further alleged that Sunpeak Association was in violation of Utah's Community Association Act, Section 57-8a-213, which restricts an association from taking arbitrary or capricious enforcement action. The plaintiff had previously began construction of a garage addition to the property, and the parties disputed whether construction was authorized. Sunpeak Association ultimately fined the plaintiff for its actions and placed a lien on the property. The plaintiff also alleged that other properties in the Sunpeak community were in violation of the Community Covenants and Restrictions, and that Sunpeak Association was liable for not properly enforcing the Community Covenants and Restrictions as to those other properties. In closing arguments, plaintiff's counsel sought $250,000 in damages, which allegedly arose from a diminution in value to the plaintiff's property. The plaintiff also sought punitive damages.

In response, the defense argued that Sunpeak was not in breach of the Community Covenants and Restrictions, and that none of its actions constituted arbitrary or capricious enforcement action. The defense pointed out that the Community Covenants and Restrictions are primarily the responsibility of individual homeowners, and that the responsibilities of the Association required it to apply sound judgment and discretion when enforcing the Community Covenants and Restrictions. The defense also argued that the alleged violations of the Community Covenants and Restrictions did not cause any discernible diminution of value to the plaintiff's property.

The case was tried over four days. The jury of eight deliberated for approximately eight hours before returning a verdict in favor of Sunpeak Association. The jury concluded that Sunpeak Association did not breach the Community Covenants and Restrictions, and that Sunpeak Association did not take any enforcement action that was arbitrary or capricious. Accordingly, there was no award of damages.

What Every Lawyer should know about Legal Professional Liability Insurance

Michelle Barrus — Mon, 07 Jul 2014 19:27:19 GMT

If you missed our June CLE on Legal Professional Liability Insurance, below you will find a copy of the outline as presented by Michael F. Skolnick of Kipp and Christian.

I. Area of Practice Factor
a. AOP as pricing consideration
b. Plaintiff vs. defense
c. Greatest areas of risk
II. Premium/Deductibles
a. Graduated premium with claims made policies
b. Difference between claims made and occurrence policies
c. Effect of prior acts coverage
d. 5-6 year Amaturation@ process
e. Loss only deductibles - no payment unless settlement or judgment
f. Higher premium; less exposure for out of pocket loss on frivolous claim
g. Higher deductible usually equals lower premium
h. Make sure deductible is amount firm can comfortably handle
i. Assume serious risk of claim every 2-3 years
III. Firm Websites
a. Underwriters will likely scrutinize
b. Know what is on your website
c. Representations about the firm’s experience handling high stakes cases
d. Representations about AOP’s, which may not be identified in application
IV. Applications
a. Be thoughtful and thorough - app. incorporated as part of policy
b. Will ask about conflict checking and calendaring
c. Premium credits for well-conceived, redundant systems
d. Will also ask about fee collection lawsuits
e. Application provides opportunity to Aclean house@
V. Levels of Coverage
a. Policy limits dependent on risk
b. If cannot cover maximum exposure at least cover equivalent of annual net income
c. Discouraging plaintiff=s attorney from rejecting limits offer
d. Per claim limit/aggregate claims limit
e. Risk of multiple claims exposure
f. Defense costs - independent of or inside policy
g. Advantages of having costs outside policy
h. Greater exposure equals greater cost of defense
VI. Submitting Claims or Potential Claims
a. Avoiding risk of non-coverage or policy rescission
b. Consulting coverage counsel if questions arise about need to report
c. Increased premium less expensive than non-coverage
VII. Effect of Claim/Indemnification Payment on Future Premium
a. Effects uncertain - up to underwriters
b. Favorable judgment generally does not wipe slate clean
c. Defense cost considerations/five year rule
d. Generally small claims/low fees don=t have great deal of effect
e. Factors outside your control - actuarial considerations, market factors
f. Multiple claims may indicate high risk practice area or high risk practices
g. Clients= demand for free or discounted services may constitute claim.
h. Read claims reporting requirements in your policy

When Your Fact Witness is Asked to Opine

Michelle Barrus — Tue, 18 Feb 2014 20:04:42 GMT

Occasionally, we represent fact witnesses who also qualify as experts. What do you do when opposing counsel begins asking for expert opinions of such a witness when you have not designated him/her as an expert? Here is my recent experience.

I was asked to represent a design engineer in a deposition taken in a personal injury case. The company for whom the design engineer worked was not a party to the lawsuit but was closely affiliated with the defendant, i.e., his employer does a lot of design work, and oversees a lot of construction, for the defendant. Plaintiffs’ counsel wanted to find out what my client’s personal involvement in the project had been, and whether certain safety issues had been taken into account during the design phase and then the construction phase of the project.

Most of the questions were focused upon issues of fact: What were your responsibilities? Did you visit the construction site? Did you think about putting a railing up? Did you evaluate the cost of making a particular improvement or change in design, etc. Near the end of the deposition counsel for the plaintiffs asked my client for an expert opinion: with the benefit of hindsight, and based upon your years of experience as a design engineer, do you see any way in which the design of this project could have been made safer?

Naturally, to prove that I was awake and listening, I objected that this witness was appearing voluntarily as a fact witness, not an expert witness, and was not in a position to be giving expert testimony. Not to be deterred, counsel for the plaintiff pressed me: “are you instructing the witness not to answer?”

“Yes,” I said. “You know the question is inappropriate because this man is here only as a fact witness. You are not entitled to ask for opinions in this circumstance.”

“What is the privilege you rely upon to instruct him not to answer?” was the retort. “You can only instruct a witness not to answer if you have a privilege you are trying to protect.”

Of course, there is no privilege in the common law or statutory sense of the word, at least so far as I know, that prevents an obviously qualified fact witness from giving expert opinions. Nevertheless, it was entirely inappropriate and unfair, both to the witness and to the relationship between the witness’s employer and the defendant, to request such an opinion. It was one of those questions that had no good answer. If the witness said “I don’t have an opinion” then plaintiffs’ counsel would impeach his credibility as a design engineer. If he gave an opinion that was not properly thought out, it would be embarrassing to the witness, his employer and the defendant.

I took the position that U.R.Civ.P. Rule 26(a)(4)(B) was a sufficient justification for an instruction not to answer. It requires the one deposing the expert to pay the witness’s reasonable hourly fees for deposition time. We had a lengthy discussionundefinedcompletely civil, I might addundefinedon the record regarding our respective positions. Neither of us called the judge but counsel for the plaintiff vowed to file a motion and to reconvene the deposition. Since he already had experts I figured nothing would come of this threat. I underestimated his determination.

Within a few weeks I was notified that plaintiffs’ counsel had filed a Statement of Discovery Issues with the court. As a non-party to the lawsuit, I took the position that this procedure was inapplicable and inappropriate, and that the proper approach was to serve my client with a subpoena (we had appeared voluntarily) and to give me an opportunity to object. I argued that the Court did not have jurisdiction over my witness until he was brought before the court on some kind of official process. I did not think it advisable to get involved in the underlying case so I did not respond to the Statement of Discovery Issues. Since the Statement remained unopposed the Court entered an Order requiring my witness to appear for the 2^nd round of his deposition. “Good luck enforcing this order” I told plaintiffs’ counsel.

A few weeks later counsel for the plaintiffs served my client with a formal subpoena directing him to appear for his deposition in Salt Lake County, where he lived. The case was pending in Weber County. I filed a formal objection to the subpoena, relying not only upon Rule 26(a)(4)(B), but also upon Rule 45(e)(3)(I), which makes it improper to require an undisclosed expert to give opinions that the deposing lawyer did not request. Further, I relied upon Rule 37 to point out that the Second District Court does not have jurisdiction to enforce a subpoena served upon a witness in the Third District. The full panoply of briefing ensued. The centerpiece of plaintiffs’ arguments was that there is no privilege that allows a fact witness to refuse to answer questions seeking expert opinions. (He was also unjustifiably critical of me for other reasons which I will not go into.)

Judge DiReda eventually issued an Order denying the plaintiffs’ motion to compel and sustaining my objection to any further questioning of my client for the purpose of eliciting expert testimony. He ruled that the Statement of Discovery Issues was not the correct method to use when dealing with non-party fact witnesses and that plaintiffs’ counsel was unjustified in his efforts to elicit expert opinions from a non-party fact witness. He also ruled that he lacked jurisdiction to enforce the subpoena because it was served upon a witness living in a different district for a deposition that was to take place in the residential district.

I have encountered other circumstances where opposing counsel wanted expert opinions from my fact witnesses but I have never had to put the question to the court nor challenge the axiom that the only basis for instructing a witness not to answer is the existence of a privilege. To the extent that Judge DiReda’s ruling is any indication of the law, I would say that illegal questions are also a sufficient basis for instructing a witness not to answer.

Phillip S. Ferguson

Wells v. Hartford Ins. Co. of the Midwest

Michelle Barrus — Tue, 03 Dec 2013 16:18:34 GMT

In an unpublished ruling, Judge Benson found that failure to both file and serve a complaint for a de novo trial of a UIM/UM arbitration award within 20 days of the award bars the de novo review, and makes it subject to a Rule 12(b)(6) motion to dismiss. In this case, the claimant filed the complaint for a de novo trial within 20 days of the arbitration award as mandated by the statute, but did not serve the UM/UIM insurer until approximately 50 days after award. The complaint was dismissed on a 12(b)(6) motion.

Wells v. Hartford Ins. Co. of the Midwest, 2013 WL 5962961 (D. Utah Nov. 7, 2013)

Submitted by Rick Vazquez

Defense Expert Disclosures

Michelle Barrus — Tue, 26 Nov 2013 16:38:02 GMT

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 I. Harris 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.

2013 Annual Meeting Report

Michelle Barrus — Fri, 24 May 2013 21:22:15 GMT

The UDLA would like to thank all of our members who participated in the May 10 Annual Meeting in downtown Salt Lake City. We enjoyed CLE presentations from a nationally-recognized speaker and from many of our own great Utah attorneys and judges. We want to thank everyone who put so much time and effort into making this year's annual meeting a great success.

At each annual conference, we take the opportunity to recognize a few of our members who exemplify the highest standards of professionalism and excellence. The 2013 Legacy Award was presented to Baird Morgan of Richards Brandt Miller & Nelson. The recipient of the 2013 Horizon Award was Scott Powers of Snow Christensen & Martineau (presented at the CLE seminar on April 26, 2013). We are privileged to count these fine attorneys among our colleagues, and we appreciate their tremendous contributions to the defense bar and the community.

Legacy Award Winner Baird Morgan

Horizon Award Winner Scott Powers

The UDLA embraces the goal of assisting each member in the development of a successful and rewarding defense practice. We appreciate the ongoing support of our members as we work together to achieve that goal.

UM/UIM Litigation vs. Arbitration

Tue, 11 Dec 2012 17:16:58 GMT

If anyone is receiving push back from Plaintiff's counsel on whether Defendants have a right to ask for arbitration under the UM/UIM statutes, I received a very favorable decision from Judge Hadley in the 2nd District in which he stated that the clear language of the statute provided that either party to the insurance contract could demand arbitration, if it was allowed in the policy. This is up on appeal, but my case is being referred to the Court of Appeals mediation, so it may not continue. However, I feel that this issue is going to be something that is going to be addressed ultimately on appeal. We need to make sure we are ready to address it and the legislative history that spawned the UM/UIM statutory provisions regarding the choice of arbitration and trial.

Save the Date - 2013 UDLA Annual Meeting

Michelle Barrus — Wed, 14 Nov 2012 22:10:23 GMT

UDLA's 2013 Annual Meeting is scheduled for May 10, 2013, in downtown Salt Lake City. This will be an excellent opportunity for you to get the CLE credits you need before reporting is due in June. More detailed information on the full-day program will follow. Mark your calendar now!

Report on Insurance Issues in Construction Law CLE

Thu, 18 Oct 2012 17:33:27 GMT

On October 17, 2012, the UDLA hosted a CLE presentation, "Insurance Issues in Construction Law." The CLE was taught by Joe Minnock of Morgan, Minnock, Rice & James. Joe was engaging and thorough, and the course was surprisingly interesting. Those in attendance learned a great deal about the structure of insurance policies and how to analyze some of the common issues that contractors and insurers face when making difficult coverage decisions. Thank you to Joe and all the ULDA members in attendance for making this a successful CLE event.

Annual Meeting Report

Michelle Barrus — Fri, 21 Sep 2012 21:58:18 GMT

The UDLA would like to thank all of our members who participated in the annual meeting last Friday in Park City. We enjoyed CLE presentations from nationally-recognized speakers and from some of our own great Utah attorneys. The conference was so enjoyable that one of our members commented, "It was like stealing CLEs." We want to thank everyone who put so much time and effort into making this year's annual meeting a great success.

At each annual conference, we take the opportunity to recognize a few of our members who exemplify the highest standards of professionalism and excellence. This year, we were honored to recognize three of our members. The 2012 Legacy Awards were presented to Phil Ferguson of Christensen & Jensen and Paul Belnap of Strong & Hanni. The recipient of the 2012 Horizon Award was Cortney Kochevar of Richards Brandt Miller Nelson. We are privileged to count these fine attorneys among our colleagues, and we appreciate their tremendous contributions to the defense bar and the community.

Legacy Award Winner Paul Belnap

Legacy Award Winner Phil Ferguson

Horizon Award Winner Cortney Kochevar

Save the Date

Michelle Barrus — Mon, 16 Apr 2012 21:26:08 GMT

UDLA's Annual Meeting is scheduled for September 14-15, 2012. Join us at the Newpark Hotel in Park City, Utah, for an excellent full-day program on Friday followed by an evening social and Saturday morning golf. Plan now to stay overnight and enjoy all that Park City offers. More detailed information will follow.

President's Message

Mon, 02 Jan 2012 15:36:07 GMT

By Anne Armstrong, UDLA President

Welcome to the Utah Defense Lawyers Association. I and the other members of the Board of Directors are looking forward to serving and working with you throughout the coming year. The practice of civil defense law in Utah is changing dramatically as 2011 comes to a close. Recent amendments to the Utah Rules of Civil Procedure will have a significant impact on future litigation. Emerging case law related to expert witnesses, communication with health care providers, Medicare secondary payer provisions, and other fundamental issues will reshape the law in many practice areas. As 2012 begins, UDLA is committed to helping its members navigate the shifting landscape. One quote in particular captures the sentiment of the Board as we plan for the year ahead: “Standing still is the fastest way of moving backwards in a rapidly changing world.” Lauren Bacall

Before I describe how UDLA plans to keep up, and help you keep up, in a dynamic legal environment, I’d first like to remind you of our roots. UDLA is one of the many state/local organization affiliates of DRITM. Our relationship with DRI connects us with a national network of defense attorneys and in-house counsel. Through DRI we have access to superior CLE offerings and other valuable resources. Those of you who attended UDLA’s Annual CLE Conference this year at the University Park Marriott know that the caliber of that program is due in large part to DRI’s support. I urge you to visit the DRI web site at www.dri.org to get acquainted or reacquainted with all that organization has to offer. If you have never been a member of DRI and would like to join, you should know that your UDLA membership allows you to take advantage of promotional DRI membership fee and CLE discounts.

Second, I’d like to introduce you to the UDLA board. The officers currently serving along with me are Ryan J. Schriever – President Elect, Peter Christensen – Vice President and Lloyd Jones – Immediate Past President. Board members are Chris Purcell, Robert Thompson, Kristine Larsen, Harold “Pete” Petersen, Gary Johnson, Anna Nelson, Todd Turnblom, David Bridge and Bruce Burt who is our current DRI Utah State Representative. Board committees include a Legislative Action Committee, Annual CLE Conference Committee, CLE Luncheon Committee, Amicus Brief Committee and Membership Committee. Our contact information can be found on the Leadership page and we welcome your input and feedback.

The UDLA officers assumed their new duties immediately after the Annual CLE Conference in September which means that the transition into 2012 is well underway. Almost immediately after the Annual Conference, UDLA sponsored a brown bag luncheon seminar on the amendments to Rule 26 and other changes to the Utah Rules of Civil Procedure. With the assistance of Andrew Wright of Strong & Hanni, who is credited with the vast majority of the time and labor, the UDLA Board prepared and submitted a comment to recently proposed Rule 26.2. The provisions of the new rule will ameliorate some of the problems recent amendments to the discovery rules created for personal injury litigation. Among other things, Rule 26.2 will require the early disclosure of specific information, including Social Security Numbers, by plaintiffs pursuing personal injury claims. The UDLA comment generally supports the additional disclosures mandated by Rule 26.2 and also suggests several modifications to the proposed language of the rule. The comment can be viewed on the Recent Developments page.

Our plans for 2012 include some changes we believe are necessary in order for the organization to continue to grow. Reconstruction of our web site will take place this coming spring. The new web site will have more content and more frequent updates. It will include news feeds, social media links and discussion forums. While we will continue the popular New Yorker luncheon CLE program, we are planning to offer additional CLE opportunities during the year. We are also developing the 2012 Annual Meeting and CLE Conference and look forward to an expanded program this coming September with nationally ranked presenters and a new venue. There are many opportunities to participate and we invite you to join a committee or project or to contact the Board with your suggestions and ideas.

While the Board is enthusiastically implementing improvements, we remain committed to our core functions. We will continue to monitor the activities of the legislature and judiciary and communicate developments to our members. We will strive to provide a forum for our members to share information and ideas and a platform for launching the efforts necessary to achieve our shared goals.