ConocoPhillips Co. v. Utah Department of Transportation, 397 P.3d 772

UDOT hired Ames as general contractor; ConocoPhillips agreed to relocate a pipeline and be reimbursed by UDOT; pipeline relocated in 2007 and inspected before/during/after the move.
Ames installed hundreds of wick drains (up to ~100 ft deep) near the project; some were placed within a few feet of the pipeline markings without a Conoco inspector present.
Conoco investigated and had Brent Cathey perform DCVG testing; Cathey detected no coating holidays then. Years later (2010), two dents were found near locations of earlier wick drains.
Conoco sued Ames and UDOT for negligence and breach of contract, asserting wick-drain installation caused pipeline damage. Cathey’s deposition (he was unavailable at trial) contained several statements implicating wick drains.
At trial the court admitted some of Cathey’s deposition testimony (general DCVG and third‑party impact opinions) but excluded statements specific to wick‑drain installation causing damage. A percipient witness (Mike Miller) volunteered an unsolicited opinion that DCVG is unreliable at ~30 ft; the court deemed that opinion inadmissible but, after discussion, the parties agreed the court would order it not be used in closing rather than give a curative instruction.
Jury returned a verdict for Conoco; defendants appealed arguing erroneous exclusion of parts of Cathey’s deposition and error in not striking / instructing about Miller’s unsolicited opinion.

Issue	Conoco's Argument	Defendants' Argument	Held
Admissibility of Cathey’s wick‑drain opinions under Utah R. Evid. 702	Cathey not shown qualified to opine about wick‑drain effects; testimony lacked reliable basis	Cathey’s experiential expertise on coating holidays and observation of wick drains suffice to qualify him	Court affirmed exclusion: Cathey lacked sufficient experience/threshold showing to be an experiential expert about wick‑drain installation effects
Admission of general DCVG and third‑party impact opinions from Cathey	These general opinions are admissible as experiential expert testimony	Defendants sought broader testimony tying wick drains specifically to the damage	Court admitted general DCVG/impact testimony but excluded wick‑drain‑specific statements as not reliably supported
Failure to strike and/or give curative instruction for Miller’s unsolicited opinion that DCVG is a “crap shoot” at 30 ft	Conoco implicitly: Miller’s descriptive testimony was permissible; parties agreed on remedy	Defendants: trial court should have struck and given curative instruction	Court held defendants invited any error by waiving a curative instruction and proposing alternative relief; issue barred on appeal
Cumulative‑error claim	N/A (Conoco)	Defendants: combined errors undermined fairness of trial	Court rejected cumulative‑error claim: either no error or only invited error, so doctrine inapplicable

Eskelson ex rel. Eskelson v. Davis Hospital & Medical Center, 242 P.3d 762 (Utah 2010) (experiential expert testimony can substitute for formal education if reliably connected to opinion)
State v. Shepherd, 357 P.3d 598 (Utah Ct. App. 2015) (framework for admitting experiential expert testimony under Rule 702)
State v. McNeil, 302 P.3d 844 (Utah Ct. App. 2013) (invited‑error doctrine and preservation of objections)
Cea v. Hoffman, 276 P.3d 1178 (Utah Ct. App. 2012) (invited‑error doctrine discourages inducing rulings to preserve appeal)
State v. Wright, 304 P.3d 887 (Utah Ct. App. 2013) (cumulative‑error analysis requires errors that together undermine trial fairness)
Allen v. Friel, 194 P.3d 903 (Utah 2008) (procedural rules restrict raising new appellate arguments in reply brief)