Baumann v. Kroger Co.
2017 UT 80
| Utah | 2017Background
- Kari Baumann sued her physician (Dr. Tayler) and her pharmacy (The Kroger Co./Smith’s) for overprescribing medication but failed to designate any experts on standards of care until after discovery deadlines and after defendants’ summary-judgment motion had been fully briefed.
- Baumann attempted to designate an expert for the pharmacy on the originally scheduled day of the summary-judgment hearing; she never designated an expert for the physician.
- The district court excluded the late-designated pharmacy expert under Utah R. Civ. P. 26(d)(4) (no late disclosure unless harmless or good cause) and granted summary judgment to both defendants because expert proof was required to establish applicable standards of care.
- On appeal, Baumann argued the court should have applied the more flexible sanctions framework of Rule 16 (per Coroles v. State) rather than Rule 26, and that the court abused its discretion by not giving her time to obtain a physician expert.
- The Utah Court of Appeals affirmed the exclusion and summary judgment, applying Rule 26 where disclosure occurred on the day of a dispositive hearing; it also addressed whether both good cause and harmlessness must be shown under Rule 26.
- The Utah Supreme Court granted certiorari, held Baumann had not preserved her Rule 16 argument or the harmlessness argument as to the pharmacy expert, affirmed the Court of Appeals’ judgment (particularly as to the physician), and clarified that Rule 26 requires either good cause or harmlessness (not both) to avoid exclusion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 16 (more forgiving sanctions) should govern exclusion of late expert disclosed the day of a dispositive hearing, rather than Rule 26 | Baumann: Coroles requires applying Rule 16’s remedial flexibility when late expert disclosure occurs | Kroger/Dr. Tayler: Coroles applies only where late disclosures occur well before trial/hearing; here disclosure was on day of hearing so Rule 26 applies | Unpreserved by Baumann (she submitted the report under Rule 26); court declined to reach on merits and affirmed exclusion on preservation grounds |
| Whether the district court abused its discretion by excluding the late pharmacy expert under Rule 26 without finding harmlessness | Baumann: Even if Rule 26 applies, exclusion was an abuse because court should have considered whether admission would be harmless | Kroger: Baumann never showed harmlessness; disclosure was untimely and prejudicial; exclusion was justified | Unpreserved by Baumann as to pharmacy harmlessness claim; waived on appeal; court also clarified Rule 26 requires either harmlessness or good cause (not both) but did not rely on that to reverse |
| Whether the district court should have postponed summary judgment to allow Baumann to obtain a physician expert | Baumann: Court should have sua sponte extended deadlines or postponed hearing to let her find a physician expert | Dr. Tayler: Issue unpreserved; Baumann never sought continuance or raised it below; no expert was designated | Unpreserved; affirmed summary judgment for physician because no expert was ever designated |
| Preservation/doctrine questions about appellate courts reaching unpreserved issues and appropriate standard | Baumann: (argued various errors on appeal) | Defendants: preserved objections to preserve; Court of Appeals wrongly reached some unbriefed issues | Utah Supreme Court emphasized preservation: Baumann waived issues by failing to present them below or invoke plain-error/exceptional-circumstances; vacated Court of Appeals’ misleading footnote but affirmed judgment |
Key Cases Cited
- Coroles v. State, 349 P.3d 739 (Utah 2015) (discusses when Rule 16’s remedial flexibility applies to late discovery disclosures)
- Dalley v. Utah Valley Reg’l Med. Ctr., 791 P.2d 193 (Utah 1990) (plaintiff generally must present expert testimony to prove medical standard of care and breach)
- State v. McNeil, 365 P.3d 699 (Utah 2016) (doctrine of invited error bars a party from challenging a ruling it encouraged)
- Allen v. Friel, 194 P.3d 903 (Utah 2008) (pro se litigants are held to same standards as attorneys for preservation and procedural rules)
- Dahl v. Harrison, 265 P.3d 139 (Utah Ct. App. 2011) (Rule 26(d)(4) allows party to avoid exclusion by showing either harmlessness or good cause)