337 P.3d 616
Idaho2014Background
- Plaintiff Samuel Zylstra was a Boise State University wrestler who sustained a head injury (concussion) during a Feb. 26, 2010 tournament; trainers examined him, found no concussion, and he continued to compete. He later was diagnosed with a significant concussion and alleges continuing symptoms.
- Zylstra filed a notice of claim (Oct. 22, 2010) and sued BSU/State in Feb. 2012 under the Idaho Tort Claims Act alleging negligence for allowing him to continue wrestling.
- The Scheduling Order set expert disclosures by April 3 (extended to April 8), discovery cutoff June 2, and dispositive motions deadline June 4, 2013; BSU moved to compel more detailed expert disclosures in April/May 2013.
- BSU moved for summary judgment (June 4, 2013) on causation and statute of limitations. Zylstra opposed with newly submitted expert affidavits (July 1, 2013) from Drs. Epperson and Brzusek.
- The district court struck those expert affidavits as untimely under I.R.C.P. 26, granted summary judgment to BSU on causation (dismissing the case) and denied BSU summary judgment on statute-of-limitations tolling. Zylstra’s motion for reconsideration was denied; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion by striking expert affidavits | Epperson/Brzusek opinions were disclosed sufficiently earlier (claim letter, 2011 report, April 2013 disclosures); any supplementation was timely/harmless | Experts’ definitive opinions were first provided after discovery closed and dispositive deadline, prejudicing BSU; strike appropriate under I.R.C.P. 26 | Affirmed: court did not abuse discretion — affidavits were new/untimely and properly excluded |
| Whether judge showed disqualifying bias | Judge was partial and prejudiced the case | No disqualification motion made below; issue not preserved | Not reviewed — issue waived for failure to move to disqualify below |
| Whether summary judgment on statute-of-limitations (tolling/competency) should have been granted to BSU (cross-appeal) | Zylstra argued factual dispute exists about his competency post-injury that could toll filing period | BSU argued inexcusable delay and insufficiency of tolling evidence | Moot — court declined to reach because causation ruling disposed of case |
| Whether causation could be proven without the stricken experts | Zylstra contended other evidence and prior reports put BSU on notice of causation opinions | BSU argued plaintiff lacked admissible expert proof to establish medical causation | District court granted summary judgment to BSU on causation; affirmed on appeal |
Key Cases Cited
- Campbell v. Kvamme, 155 Idaho 692 (Idaho 2013) (summary judgment relies on admissible evidence)
- Fragnella v. Petrovich, 153 Idaho 266 (Idaho 2012) (admissibility of affidavit/deposition evidence is threshold for summary judgment)
- Radmer v. Ford Motor Co., 120 Idaho 86 (Idaho 1990) (Rule 26 continuing duty to supplement expert disclosures; failure typically leads to exclusion)
- Schmechel v. Dille, 148 Idaho 176 (Idaho 2009) (exclusion of undisclosed expert testimony is within trial court's sound discretion)
- Duspiva v. Fillmore, 154 Idaho 27 (Idaho 2013) (I.R.C.P. 26(e) expert disclosure requirements described)
- McLean v. Maverik Country Stores, Inc., 142 Idaho 810 (Idaho 2006) (issues in cross-appeal may be moot where principal appeal disposes of case)
- McPheters v. Maile, 138 Idaho 391 (Idaho 2003) (failure to move for judge's disqualification below waives appellate review)