UDLA members may submit a blog posting by sending an email to the Executive Director at udlaxd@gmail.com

Recent Developments

A prominent plaintiff's law firm recently referred to a newer law review article on the billed vs. paid issue.  We will likely see more references to the article which is very biased toward the plaintiff's position.  We thought some of you may be interested in reading it.

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  • 18 Feb 2014 1:04 PM | Anonymous

    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 2nd 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

  • 03 Dec 2013 9:18 AM | Anonymous

    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

  • 26 Nov 2013 9:38 AM | Anonymous

    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.

  • 24 May 2013 3:22 PM | Anonymous
    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.
  • 11 Dec 2012 10:16 AM | Lloyd R. Jones (Administrator)

    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.

  • 14 Nov 2012 3:10 PM | Anonymous
    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!
  • 18 Oct 2012 11:33 AM | Deleted user
    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.
  • 21 Sep 2012 3:58 PM | Anonymous
    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

    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.
  • 16 Apr 2012 3:26 PM | Anonymous
    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.
  • 02 Jan 2012 8:36 AM | Anonymous

    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.     

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