Al-Imari v. UDOTAl-Imari v. UDOT
George W. Burbidge II and W. Kevin Tanner, Attorneys for Appellee Staker Parson Companies
Joseph E. Minnock and Anna Nelson, Attorneys for Appellee Utah Department of Transportation
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE GREGORY K. ORME concurred. JUDGE DAVID N. MORTENSEN dissented, with opinion.
HARRIS, Judge:
¶1 Jeddie Al-Imari, Kathleen Al-Imari, and Jennifer Al-Imari (collectively, the Al-Imaris) sued the Utah Department of Transportation (UDOT) and Staker Parson Companies (Staker), asserting that UDOT and Staker negligently caused a car accident in which some of them had been involved. The district court dismissed the Al-Imaris’ suit on summary judgment, however, because the court deemed the Al-Imaris’ expert witness
¶2 The Al-Imaris now appeal, challenging both the district court’s decision to exclude their expert witness as well as the court’s order dismissing their case on summary judgment. For the reasons discussed, we agree with the Al-Imaris that—although their designation was indeed initially deficient—the court should not have excluded their expert witness under the circumstances presented here, and on that basis we reverse both the order striking the witness and the order granting summary judgment.
BACKGROUND1
¶3 Jeddie and Kathleen Al-Imari, along with two of their young grandchildren, were driving southbound on Highway 89 in Logan Canyon on a rainy day when their car “encountered oil or [some] other slick substance on the road,” which they claim “caused [their] vehicle to lose traction, spin 180 degrees, travel off the road, and flip over into the adjacent Logan River.” Bystanders had to cut the occupants’ seat belts to extract them from the vehicle, and one of them required resuscitative CPR after being pulled from the water. All four occupants were transported to a nearby hospital for treatment and observation.
¶4 Nearly two years later, the Al-Imaris filed suit against UDOT and Staker for negligence. They alleged that UDOT hired Staker to install a new asphalt surface on Highway 89 and that Staker created an unsafe condition on the road at the site where the car crash occurred. Specifically, the Al-Imaris alleged that the road resurfacing project resulted in oil or some other slick substance being left on the road and that UDOT and Staker failed
¶5 Soon after the close of the fact discovery period, the Al-Imaris timely filed their expert witness disclosures, as required by rule. See
¶6 In those same disclosures, the Al-Imaris included a paragraph purporting to be a “Brief Summary of Opinions” that Expert would offer. That paragraph, in full, states as follows:
[Expert] is expected to testify regarding the conditions present at the incident site, the obligations of construction contractors in sealing roadways, signage requirements, Utah regulations relating to roadway surfacing, and safety conditions necessitated by weather. Expert is also expected to testify regarding the factors contributing to the underlying accident.
Immediately following this summary, the Al-Imaris provided a list of categories of data that Expert would rely upon in reaching his opinions, including the “US DOT Field Guide,” “[c]onstruction site maps and photos,” and “[l]aws, regulations, rules, and industry standards applicable in the subject case.”
¶8 Nevertheless, the very next day both defendants made the election to request an expert report (rather than a deposition) from Expert, although in those election documents each defendant specified that it made its election “out of abundance of caution” and “only in the alternative as necessary,” without intending to “waive” its “rights” regarding the pending motion to strike the Al-Imaris’ designation of Expert.
¶9 The Al-Imaris opposed the motion to strike, arguing that they were “not required to list each specific opinion formulated by [Expert] but rather the summary of what those opinions consist of.” They reiterated that Expert was “expected to opine regarding the conditions present at the incident site, the obligations of construction contractors in sealing roadways, signage requirements, Utah regulations relating to roadway surfacing, and safety conditions necessitated by the weather,” and they argued that this description satisfied the requirements of the governing rule. And a few weeks later, while the motion to strike was still pending, the Al-Imaris served a copy of Expert’s full written report on UDOT and Staker.
¶11 In response, the Al-Imaris argued that the summary of Expert’s opinions was not deficient and that even if it was, the “appropriate remedy” was not to prevent Expert from testifying but, instead, for the court to require them to supplement the disclosure, which they had already offered to do. And they added that, if after reviewing a supplemental summary of Expert’s opinions (as had presumably been included in the already-served full report), UDOT and Staker wished to take Expert’s deposition (thus affording them both a report and a deposition), the Al-Imaris would not oppose that effort.
¶12 At the conclusion of the hearing, the court made an oral ruling—later memorialized in a written order—granting the motion to strike. The court explained that the Al-Imaris’ disclosure “provided a list of areas on which an opinion might be given,” but it “did not provide the meaningful type of summary” that is required by rule. In its written order, the court stated that there were “no opinions expressed in the designation nor facts upon which an opinion would be based” and that “such a designation was improper.” In addition, the court found that the
¶13 A few weeks after entry of the court’s written order precluding Expert from testifying at trial, Staker filed a motion for summary judgment—joined by UDOT—arguing that without Expert’s testimony, the Al-Imaris could not support their claims. Staker argued that “due to the nature of the accident, the actual cause of the accident requires expert testimony as the allegations are not within the customary knowledge of the typical juror.” In turn, Staker argued that because Expert’s designation had been struck, the Al-Imaris could not prove that Staker or UDOT had breached any duty of care involving the road resurfacing or signage. The Al-Imaris opposed the motion, arguing that they needed no expert to establish the standard of care in their case because the Restatement (Second) of Torts provided the applicable standard of care for hazardous conditions on land.
¶14 After full briefing and oral argument, the district court granted the motion for summary judgment. The court found that “this is the type of case which requires an expert opinion or opinions as to the proper standard of care.” It explained that “the understanding of [the relevant] duties is beyond the grasp of a typical jury and requires [the] specialized knowledge of an expert.” The court then rejected the Al-Imaris’ reliance on the Restatement for a standard of care, because, in the court’s view, the Al-Imaris “produced no evidence supporting such a duty in this matter.” The court similarly found that the Al-Imaris’ claim failed as to causation because there was “no evidence that UDOT or Staker created the dangerous condition” on the road or that “it was a dangerous condition that caused . . . [Jeddie] Al-Imari to lose control of his vehicle.”
ISSUES AND STANDARDS OF REVIEW
¶16 The Al-Imaris now appeal, and they ask us to consider two issues. First, they challenge the district court’s order striking their designation of Expert and precluding Expert from testifying at trial. We review for correctness the district court’s conclusion that the designation was inadequate under applicable rules, but we review for abuse of discretion whether any deficiencies in the designation were harmless or justified by good cause. See Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶ 17, 508 P.3d 619.
¶17 Second, the Al-Imaris challenge the district court’s order granting summary judgment in favor of UDOT and Staker. We review a “grant of summary judgment for correctness and afford no deference to the court’s legal conclusions.” Turley v. Childs, 2022 UT App 85, ¶ 16, 515 P.3d 942 (cleaned up).
ANALYSIS
¶18 We first address the Al-Imaris’ challenge to the district court’s order striking their designation of Expert and precluding Expert from testifying at trial. For the reasons discussed, we agree with the Al-Imaris that the district court’s order is infirm and that the court exceeded its discretion by imposing the severe sanction of exclusion under these circumstances. And with Expert’s testimony back in the mix, summary judgment in favor of UDOT and Staker is inappropriate. We therefore reverse both challenged orders and remand the case for further proceedings.
¶19 Under applicable rules, parties who wish to present testimony at trial from retained expert witnesses must make certain disclosures to their litigation opponents. See
¶20 Disclosure requirements like this one are aimed at allowing one’s litigation opponents to “make better informed choices about the discovery they want to undertake or, just as important, what discovery they want to forgo.” RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 25, 392 P.3d 956 (addressing a non-retained expert disclosure); see also
¶21 The retained expert disclosure requirement at issue here is chiefly intended to ensure transmission of information sufficient to inform one specific decision: whether to elect a report or a deposition from the expert witness in question. See
¶22 This choice has not always been part of the rule. Before the 2011 amendments, parties were entitled to receive a written report from every retained expert designated by the other side, and in addition were still allowed, at their option, to take that expert’s deposition. See
¶23 Against this backdrop, we first address whether the Al-Imaris’ designation of Expert met rule 26’s “brief summary of opinions” requirement, and we conclude that the designation was not entirely in compliance with the rule’s requirements. Next, we address the extent to which the designation’s deficiencies caused
A
¶24 As already noted, the applicable rule required the Al-Imaris to provide “a brief summary of the opinions to which [Expert was] expected to testify.” See
¶25 At the outset of our analysis, it bears noting that the Al-Imaris hardly ignored the expert-designation deadline. Indeed, their designation of Expert as their sole retained expert witness was timely and was compliant with the rule in nearly every respect. It contained Expert’s “name and qualifications” and a list of his “publications authored within the preceding 10 years,” as well as a list of the cases in which he had “testified as an expert at trial or by deposition within the preceding four years.”
- “the conditions present at the incident site“;
- “the obligations of construction contractors in sealing roadways“;
- “signage requirements“;
- “Utah regulations relating to roadway surfacing“;
- “safety conditions necessitated by weather“; and
- “the factors contributing to the underlying accident.”
UDOT and Staker assert that this “summary of opinions” doesn’t actually contain any opinions; they characterize it as simply a list of topics that Expert will discuss.
¶27 In a case construing similar language regarding non-retained expert disclosures, we held that a disclosure was deficient because it provided only the witness’s “name, title, and
¶28 In this regard, the Al-Imaris’ designation of Expert was deficient. While it provided a lot of information about Expert, as well as a list of topics about which Expert would offer opinions, the disclosure did not take the extra required step and actually offer UDOT and Staker even a “brief summary” of what those opinions would be. On this basis, we agree with the district court that Expert’s disclosure was out of compliance.
¶29 But we emphasize that—under the specific circumstances presented here—the Al-Imaris wouldn’t have needed to do much to bring this disclosure into compliance. An expert witness designation is, by design, a far cry from an expert report. The rule requires only that the designation include a “brief summary” of the expert’s anticipated opinions, and it therefore need not include “prefiled testimony or detailed descriptions of everything
¶30 In this case, UDOT and Staker knew that Expert was going to be the Al-Imaris’ sole negligence and accident-causation expert; after all, each of the other experts disclosed in the Al-Imaris’ designation were non-retained medical providers who would perhaps discuss damages but who would be in no position to discuss the accident itself. And it stands to reason that, as the Al-Imaris’ sole expert on these key issues, Expert would be offering opinions in favor of the Al-Imaris (and against UDOT and Staker) on the topics listed in the designation; without opinions on these points in the Al-Imaris’ favor, their case would likely be subject to dismissal. For instance, the disclosure indicated that Expert would offer opinions about “the obligations of construction contractors in sealing roadways” and about “signage requirements.” Under the circumstances, after reviewing this designation, UDOT and Staker certainly would have understood that Expert—as opposed to some other witness—intended to offer an opinion that UDOT or Staker breached those obligations by not properly sealing the roadway on the day in question and by not putting up signs as necessary to warn motorists. And had the disclosure included just a few additional words along those lines, the disclosure would have met the rule’s requirement—at least with regard to those topics—that it contain a “brief summary” of Expert’s opinions.3 Stated another way, to be compliant, the
¶31 Nevertheless, and despite the fact that the designation contained quite a bit of information about Expert that could have been used to make the report-or-deposition choice, the Al-Imaris’ designation was in violation of the applicable rule. That rule required the designation to include a “brief summary” of Expert’s anticipated opinions, and it did not. For this reason, the district court committed no error in concluding that the Al-Imaris’ designation of Expert did not comply with the rule.
¶32 But we consider the violation here to have been on the less egregious end of the spectrum, given that (a) this case does not involve a complete failure to disclose, but instead involves an infirmity contained within a timely disclosure that was otherwise completely in compliance; (b) much of the missing information (e.g., that Expert would offer negligence and causation opinions in favor of the Al-Imaris and against UDOT and Staker) could be
B
¶33 With these conclusions in mind, we proceed to address the next issues: whether and to what extent the deficiencies in the Al-Imaris’ expert witness disclosure were harmful to UDOT and Staker, and whether the district court exceeded its discretion by imposing the ultimate sanction of exclusion and dismissal.
¶34 We begin by reciting a fundamental principle, one that in our view bears repeating: not every discovery or disclosure violation deserves a sanction. The rules dictate that a party who “fails to disclose or to supplement timely a disclosure or response to discovery” is subject to sanction, and the rule even specifies what that sanction should ordinarily be: the party will be forbidden from “us[ing] the undisclosed witness, document, or material at any hearing or trial.”
¶35 As already noted, we review a district court’s harmlessness determination for abuse of discretion. See Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶ 17, 508 P.3d 619. We have recognized that some measure of deference to a district court’s decision is in this context warranted because “assessment of harm” in the context of a failure to disclose “is a nuanced matter.” Id. ¶ 48. In many cases, a litigant will suffer clear and demonstrable harm from an opponent’s failure to comply with disclosure rules. But in other cases, a litigant might be overstating its claims of harm, all in an effort to win a non-merits dismissal of an opponent’s lawsuit. And
¶36 Indeed, in one case, we concluded that a district court had exceeded its discretion in making a harmlessness determination in this context. See Johansen v. Johansen, 2021 UT App 130, ¶ 19, 504 P.3d 152. In that case, the district court deemed a disclosure violation—there, a complete failure to serve any initial disclosures at all—to be harmless. Id. ¶¶ 3, 14. On appeal, we determined that this ruling was too lenient and represented an abuse of the relatively wide discretion afforded to district courts in making harmlessness determinations. Id. ¶ 19. Thus, Johansen stands for the proposition that a district court’s discretion in this regard is not boundless and that a court can exceed its discretion in making too lenient a decision regarding harmlessness.
¶37 But abuse of discretion is a street on which traffic necessarily runs both ways: a district court can also exceed its discretion in the opposite direction, by making a ruling that exceeds the bounds of discretion by being unduly harsh. We reject the notion that abuse of discretion in the rule 26 context can run in only one direction, and in this vein we are reminded of our supreme court’s admonition to district courts about how they should wield their discretion in the context of discovery sanctions:
It is true that where the authority to perform a proposed action rests within the discretion of the court we must allow considerable latitude in which [the court] may exercise [its] judgment. But this does
not mean that the court has unrestrained power to act in an arbitrary manner. . . . The meaning of the term “discretion” itself imports that the action should be taken within reason and good conscience in the interest of protecting the rights of both parties and serving the ends of justice. It has always been the policy of our law to resolve doubts in favor of permitting parties to have their day in court on the merits of a controversy.
Carman v. Slavens, 546 P.2d 601, 603 (Utah 1976) (cleaned up); see also Davis v. Riley, 437 P.2d 453, 455 (Utah 1968) (“The word ‘discretion’ itself imports that the action should be taken with reason and in good conscience, and with an understanding of and consideration for the rights of the parties, for the purpose of serving the always desired objective of doing justice between them.“); cf. Coroles v. State, 2015 UT 48, ¶¶ 25–29, 349 P.3d 739 (instructing a district court, on remand, that an order excluding a witness would be too harsh under the circumstances and “would be an abuse of discretion“). Indeed, the drafters of the 2011 amendments to rule 26, while instructing that “the usual and expected result” of disclosure violations “should be exclusion of the evidence,” nevertheless emphasized that, despite the existence of a disclosure violation, “a trial court retains discretion to determine how properly to address [disclosure violations] in a given case.” See
¶38 In this case, the only harm identified by UDOT and Staker is their contention that they were unable to make a meaningful election between report and deposition after reviewing the Al-Imaris’ designation of Expert. They contend that the designation did not provide enough information to allow them to adequately prepare for a deposition, and so they (provisionally) chose “the
¶39 But even given these assumptions, the district court still exceeded its discretion, under the circumstances presented here, by imposing a disproportionate sanction—exclusion and dismissal—that was not warranted by the severity of the violation and the level of harm sustained.
¶40 At times, we have referred to the sanction prescribed by
¶42 And it is important here to emphasize that harmlessness, in this context, is to be assessed as of the time the court makes its decision, and not as of the time the disclosure violation occurred. From a textual standpoint, the rule uses present tense and asks a district court to determine whether “the failure is harmless.” See
¶43 From a practical standpoint, this makes perfect sense. When a court assesses the harmfulness of a disclosure violation, it must necessarily assess the harm caused by that failure, which will almost always include events subsequent to the failure. For example, in De La Cruz, we explained that a party was harmed by an untimely damages disclosure because “[f]or nearly the entirety of the fact discovery period,” the innocent party understood the damages to be “around $11,000 and made decisions about how much discovery to conduct and what questions to ask based on that information.” 2024 UT App 18, ¶ 20. The “belated damages disclosures,” however, “increased [the] claimed damages sixfold” and prevented the innocent party from having “an opportunity during the fact discovery period to conduct discovery” on the new damages claims. Id. Obviously, the disclosing party’s failure to adequately disclose the damages preceded the harmful consequences crucial to our analysis—in other words, the inadequate disclosure at the outset inhibited the innocent party’s
ability to tailor their fact discovery proportionally to the case‘s value as discovery unfolded. See id.; see also Erickson v. Erickson, 2022 UT App 27, ¶ 28, 507 P.3d 824 (explaining that the late expert disclosure on the eve of trial was harmful because it “deprived [the innocent party] of a reasonable opportunity to prepare to rebut the newly disclosed expert‘s testimony” at trial).
¶44 By the same token, a disclosure violation may cause some harm in the moment, on the day it was made, but if that harm has been completely ameliorated—on its own, or through actions of the parties—in the intervening time between the disclosure and the eventual court hearing on the matter, then no harm exists at the time the court is asked to make its determination as to harmlessness. See Butler, 2022 UT App 37, ¶ 34 (“Where additional illuminating information was received by an opposing party relatively early during the discovery period, within enough time to allow that party to use that information while taking depositions and propounding other discovery requests, then any inadequacies in a party‘s damages disclosures may turn out to be harmless.” (cleaned up)). For example, in Coroles, our supreme court assessed the harmlessness of a failure to disclose expert witnesses, and in doing so, it considered developments that occurred after the failure to disclose. 2015 UT 48, ¶ 28. There, the plaintiff had “designated her initial expert witnesses by the deadline established in the scheduling order,” but two months later, the defendants moved to exclude those experts. Id. ¶¶ 6, 28. In response, the plaintiff “promptly designated replacement experts two weeks after the defendants moved to exclude her initial experts.” Id. ¶ 28 (emphasis added). In considering whether to allow the replacement experts to testify, the court noted that all of this had occurred before a trial date had even been set. Id. And the court held that “the only prejudice identified by the district court for allowing the replacement experts to testify would be the need for a new scheduling order and a potential delay in the eventual trial date.” Id. That kind of harm, the supreme court held,
¶45 Again, this is intuitive: a harmlessness determination must be made as of the time the assessment is undertaken—in many cases, this will occur on the fly during trial, when (for instance) a party asks to use a theretofore nondisclosed document and the other side objects—and it must take into account not only post-disclosure-violation harm but also post-disclosure-violation mitigation. It would be nonsensical for us to require courts to freeze the harm analysis as of the time the disclosure violation occurred and ignore later developments in the case that either worsened or mitigated any resulting harm. The rules are simply not that wooden; indeed, as noted, the language of the rule imposes no such requirement.
¶46 This ability—indeed, obligation—to assess harm as of a date later than the date the disclosure violation was committed thus allows a court, before ordering full exclusion of a witness or other evidence, to consider the imposition of measures short of full exclusion that are designed to eliminate whatever harm might have originally been present. If those measures succeed in curing the harm, then the violation was indeed harmless and no further sanction is warranted. On the other hand, if those measures are not complied with or do not succeed in eliminating the harm, then harm remains and exclusion would be appropriate.
¶49 We have already explained why we think the Al-Imaris’ rule violation was on the less-egregious end of the spectrum. See supra ¶¶ 29-32. And for similar reasons, we do not think it appropriate here to characterize any harm sustained by UDOT and Staker as severe. In its ruling, the district court did not say much about what specific harm UDOT and Staker supposedly suffered; all the court tells us is that UDOT and Staker were unable to “act on the designation provided.” But in reality, they were able to make a report-or-deposition choice based on the designation provided, as evidenced by the fact that they actually did make such a choice (choosing “report“) the day after filing their motion to strike. To be sure, UDOT and Staker claimed then, and are still claiming now, that this choice was made based on incomplete information, and that they chose “the lesser of two evils” because they didn‘t feel like they could adequately prepare for a deposition based on the designation offered. But the district court didn‘t explain why it found this argument persuasive, and we are less receptive to this argument than the district court was.
¶50 Indeed, as discussed above, UDOT and Staker had—as a practical matter—a lot of information upon which to exercise a meaningful election between a report and a deposition. They had Expert‘s curriculum vitae and testifying history, as well as the compensation structure in effect with the Al-Imaris. They knew that Expert was a “licensed professional engineer with expertise in vehicle collision reconstruction, commercial vehicle crash investigation and analysis, roadway design, . . . traffic controls, . . . and automotive safety and design issues.” And given that all of
¶51 Moreover, by the time their motion to exclude came on for a hearing, UDOT and Staker had had Expert‘s full report in their possession for several weeks, and that report gave them much
¶52 In addition, it is worth noting that UDOT and Staker filed their motion—asking for total exclusion of Expert as a witness—just thirteen days after receiving the designation, and well before any of the following events had taken place: receiving Expert‘s report, taking Expert‘s deposition, the expiration of the expert discovery period, or the setting of a trial date. Thus, this is not a case in which UDOT and Staker had expended significant resources—or any resources at all, really—going down a path laid for them by their litigation opponents that was later determined to be irrelevant or ill-advised. Compare De La Cruz, 2024 UT App 18, ¶ 19 (noting that the defendant had “created and executed on a discovery and litigation plan” that was premised on representations the plaintiff made, and that the defendant sustained harm when the plaintiff made a late disclosure of additional damages). Nor is this a case where a disclosure occurred on the eve of trial, requiring the opposing parties to re-evaluate their litigation strategy late in the game. Compare Erickson, 2022 UT App 27, ¶¶ 27-28 (holding that the untimely
¶53 Finally, any harm sustained here by UDOT and Staker could have been entirely ameliorated with simple measures well short of exclusion of Expert‘s testimony and eventual dismissal of the Al-Imaris’ case. Indeed, one such measure was suggested by the Al-Imaris at the oral argument: allowing UDOT and Staker, already armed with Expert‘s report, to take Expert‘s deposition, presumably at the Al-Imaris’ expense. We agree with the Al-Imaris that this lesser sanction would have completely ameliorated any harm sustained by UDOT and Staker.
¶54 Under the unique circumstances of this case, the district court exceeded its discretion by determining that the harm in this case was severe enough to justify a sanction amounting to dismissal of the Al-Imaris’ case.
¶55 We therefore reverse the order excluding Expert from testifying at trial, and we remand the case to the district court for reassessment of the harmlessness inquiry and for reassessment of what proportional measures might be taken to ameliorate any specific harm found to have been sustained by UDOT and Staker as a result of the Al-Imaris’ disclosure violation. On remand, the district court will continue to have a measure of discretion to determine “harmlessness” and, if it determines that some harm has occurred, to select appropriate measures to ameliorate it. But on this record, that discretion is not broad enough to permit it to impose the ultimate sanction of exclusion and dismissal.
II. The Summary Judgment Order
¶56 Having determined that the district court exceeded its discretion by striking the Al-Imaris’ designation of Expert, we next address the Al-Imaris’ challenge to the district court‘s order granting summary judgment in UDOT and Staker‘s favor.
¶57 In this case, the court‘s summary judgment order was premised on its earlier order barring Expert from testifying at
¶58 But now that we have reversed the district court‘s order forbidding Expert from testifying at trial, the summary judgment landscape has changed. It is no longer true that the Al-Imaris have “no evidence” regarding negligence and causation.
CONCLUSION
¶59 Because the Al-Imaris’ expert designation did not include a brief summary of Expert‘s opinions, it did not meet all the
¶60 Accordingly, we reverse the court‘s order excluding Expert from testifying at trial, and we vacate the court‘s order granting summary judgment in favor of UDOT and Staker. We remand the case for further proceedings consistent with this opinion, including reassessment of whether an appropriate non-terminating sanction should be imposed as a penalty for the Al-Imaris’ noncompliance, and including assessment of any renewed motion for summary judgment that any of the parties might file.
MORTENSEN, Judge (dissenting):
INTRODUCTION
More complete disclosures increase the likelihood that the case will be resolved justly, speedily, and inexpensively. Not being able to use evidence that a party fails properly to disclose provides a powerful incentive to make complete disclosures. This is true only if trial courts hold parties to this standard. Accordingly, although a trial court retains discretion to determine how properly to address this issue in a given case, the usual and expected result should be exclusion of the evidence.
Utah R. Civ. P. 26 advisory committee‘s note to 2011 amendment (emphasis added)
¶62 I begin by articulating the appropriate standard of review. Next, I assess the Al-Imaris’ failure to disclose in this case, which was more than a mere technical failure. I proceed to explain how the majority opinion is at odds with the plain text of the rule. I then summarize the precedent of our appellate courts on these issues, which forecloses the majority‘s holding in this case. I then explain that these principles allow for the admittedly harsh result in this case, namely exclusion of Expert‘s testimony. I then discuss
ANALYSIS
I. Standard of Review
Skeptics believe that appellate standards of review do not really matter; that appellate judges pay lip service to standards of review but then decide cases as they please without real regard for the applicable standard of review. Our votes in this case demonstrate that standards of review really do matter.
Gunn Hill Dairy Props., LLC v. Los Angeles Dep‘t of Water & Power, 2015 UT App 261, ¶ 21, 361 P.3d 703 (Orme, J., concurring, joined by Toomey, J.)
¶63 The majority‘s statement of the standard of review is correct but incomplete. And it matters. The majority correctly states that we review (1) whether a party‘s disclosure was inadequate for correctness as it involves an interpretation of a rule of civil procedure and (2) a district court‘s determination that a deficient disclosure was harmful for an abuse of discretion.
Supra ¶ 37 (alterations and omission in original) (quoting Carman v. Slavens, 546 P.2d 601, 603 (Utah 1976) (cleaned up)). Fair enough. What the majority neglects to mention, however, is that the Carman court—in the very same paragraph—stated that “[t]he language of the rule as presently worded is permissive, rather than mandatory,” which was what gave the court the “discretionary authority to impose” the challenged sanctions in the first place. Carman, 546 P.2d at 603.It is true that where the authority to perform a proposed action rests within the discretion of the court we must allow considerable latitude in which [the court] may exercise [its] judgment. But this does not mean that the court has unrestrained power to act in an arbitrary manner. . . . The meaning of the term “discretion” itself imports that the action should be taken within reason and good conscience in the interest of protecting the rights of both parties and serving the ends of justice. It has always been the policy of our law to resolve doubts in favor of permitting parties to have their day in court on the merits of a controversy.
¶64 Stated otherwise, a district court‘s sanctions ruling is a “discretionary call.” De La Cruz v. Ekstrom, 2024 UT App 18, ¶ 11, 545 P.3d 285 (cleaned up). And we have specifically noted that we will affirm a discretionary call even where we might have reached a different decision. Id.; Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 25, 493 P.3d 1131; Gunn Hill Dairy Props., LLC v. Los Angeles Dep‘t of Water & Power, 2015 UT App 261, ¶¶ 21-24, 361 P.3d 703 (Orme, J., concurring, joined by Toomey, J.); England Logistics, Inc. v. Kelle‘s Transport Service, LLC, 2024 UT App 137, ¶ 59, 559 P.3d 45.
¶65 As I will discuss in more detail, the significant discretion at play here is coupled with a presumption of exclusion. Properly applied, the standard of review allows for but one outcome in this case: affirming the district court‘s decision to exclude Expert‘s testimony.
II. Failure to Disclose
The Disclosure Failed Completely to Disclose the Most Important Thing: An Opinion.
¶66 I agree with one discrete, but significant, holding of the majority opinion: “[T]he district court committed no error in concluding that the Al-Imaris’ designation of Expert did not comply with the rule.”
¶67 Pertaining to experts,
[Expert] is expected to testify regarding the conditions present at the incident site, the obligations of construction contractors in sealing roadways, signage requirements, Utah regulations relating to roadway surfacing, and safety conditions necessitated by weather. Expert is also expected to testify regarding the factors contributing to the underlying accident.
As noted, the majority correctly observes that this disclosure was deficient.
¶68 The majority suggests that UDOT and Staker could have easily inferred all this because they “knew that Expert was going to be the Al-Imaris’ sole negligence and accident-causation expert.” Supra ¶ 30. I would not impose such a guessing game on litigants, especially in this case, where the disclosure contained neither the word “negligence” nor the word “causation.” At the very least, no one can dispute that it would have been much easier for the Al-Imaris to provide the necessary information in the first place, given that they presumably knew the substance of Expert‘s testimony.
¶70 When a party with the burden of proof on an issue serves its initial expert disclosures, it triggers a cascade of other deadlines. A party electing a deposition must depose that expert within forty-two days. See id. In practice, this period will frequently lapse before a motion to exclude can even be briefed and argued. Under the majority‘s approach, a district court will likely need to make a finding of harmlessness because the opposing party will have already taken the expert‘s deposition or received the report. See supra ¶ 53 (describing a measure “short of exclusion” that the district court could have ordered to remedy the Al-Imaris’ deficient disclosure, namely allowing UDOT and Staker “to take Expert‘s deposition, presumably at the Al-Imaris’ expense“).
¶71 And although a party that doesn‘t bear the burden of proof on an issue technically has fourteen days after receiving an expert report or taking a deposition to serve its initial disclosures, see
¶72 In sum, the short deadlines contemplated by
III. Plain Language
We interpret court rules, like statutes and administrative rules, according to their plain language. Courts are, in short, bound by the text of the rule.
Strand v. Nupetco Assocs. LLC, 2017 UT App 55, ¶ 4, 397 P.3d 724 (cleaned up)
¶73 “Trial courts have broad discretion in managing the cases before them . . . .” Solis v. Burningham Enters. Inc., 2015 UT App 11, ¶ 12, 342 P.3d 812 (cleaned up). As noted, this broad discretion generally applies to a trial court‘s sanctions ruling. See supra
¶74 We construe our rules of civil procedure “according to their plain language.” Strand v. Nupetco Assocs. LLC, 2017 UT App 55, ¶ 4, 397 P.3d 724 (cleaned up).
¶75 In contrast to what the plain syntax of the rule indicates, the majority seeks to impose a linguistically unnatural temporal aspect in reading the verb clause “is harmless.” In the majority‘s words,
[H]armlessness . . . is to be assessed as of the time the court makes its decision, and not as of the time the disclosure violation occurred. From a textual standpoint, the rule uses present tense and asks a district court to determine whether “the failure is harmless.”
Supra ¶ 42 (quoting
¶78 Thus, the rule‘s plain text suggests that its drafters also contemplated that parties would make deficient disclosures, and they specified the procedure to be followed in that situation. They made clear that it would be up to the disclosing party to correct a deficient disclosure, see
¶80 The majority concedes that
¶81 The majority also adds substantive content to the rule found nowhere in its language, holding that the point in time to determine harm or good cause is not when the disclosure is made but, instead, as of the time of the hearing at which the district court addresses exclusion. See supra ¶ 42. And even then, if some harm still exists, a district court must nonetheless assess whether the harm can be ameliorated before ordering exclusion. See supra ¶ 55.
¶82 In sum, the majority‘s assertion that courts should focus on what has occurred since the motion to strike the relevant witness or expert is filed lacks basis in the plain language of the rule and, as I explain in the next part, in our precedent.
Here, also, the applicable provision of law is beyond dispute.
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 411 (1932) (Brandeis, J., dissenting)
¶83 The majority disregards principles of horizontal stare decisis and brushes aside years of precedent. “Stare decisis is a cornerstone of Anglo-American jurisprudence because it is crucial to the predictability of the law and the fairness of adjudication.” State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (cleaned up). “Horizontal stare decisis” refers to the principle “that one panel of this court is bound to follow the previous decisions of another panel of this court, unless we make a specific decision to overrule or disavow the earlier precedent.” In re adoption of BNA, 2018 UT App 224, ¶ 22, 438 P.3d 10. To be sure, however, “horizontal stare decisis only applies if the previous precedent remains robust.” Id.
¶84 In RJW Media Inc. v. Heath, we explained that our discovery “rules embrace the idea of competing risks” and that “[a] disclosing party who endeavors, by stratagem or otherwise, to disclose as little as possible faces a significant risk that the disclosure will be found insufficient and the evidence or the witness may not be allowed.” 2017 UT App 34, ¶ 30, 392 P.3d 956. We also stated that an expert designation should include “specific facts and opinions . . . so that parties can make better informed choices about the discovery they want to undertake or, just as important, what discovery they want to forgo.” Id. ¶ 25.
¶85 To be absolutely clear, RJW Media remains robust. See S6, LLC v. Wing Enters., Inc., 2024 UT App 105, ¶ 55, 556 P.3d 100; Sabour v. Koller, 2024 UT App 26, ¶¶ 28–40, 546 P.3d 28; Dierl v. Birkin, 2023 UT App 6, ¶ 33, 525 P.3d 127; Johansen v. Johansen, 2021 UT App 130, ¶ 32 n.10, 504 P.3d 152; Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶¶ 48–49, 493 P.3d 1131 (Mortensen, J.,
¶86 RJW Media and its progeny strongly suggest that a district court has the affirmative obligation to exclude a witness or evidence if the offending party has failed to demonstrate good cause or harmlessness. See infra ¶¶ 87–95. Even the two cases upon which the majority primarily relies held that the district courts appropriately excluded the relevant witnesses or evidence. See De La Cruz v. Ekstrom, 2024 UT App 18, ¶ 24, 545 P.3d 285; Segota v. Young 180 Co., 2020 UT App 105, ¶ 22, 470 P.3d 479. In short, the majority‘s rule is inconsistent with all of these cases.
¶87 In Hansen v. Kurry Jensen Properties LLC, the trial court had denied a motion to exclude witnesses where the witnesses had not been disclosed. 2021 UT App 54, ¶¶ 5, 7–8, 493 P.3d 1131. The lead opinion acknowledged that
¶88 Just six months later, we recognized the binding nature of the concurring opinion and applied its rationale in Johansen v. Johansen, 2021 UT App 130, 504 P.3d 152. There, the district court had determined that a party‘s failure to disclose was harmless, which this court held erroneous and warranted reversal. Id. ¶¶ 19–20. We held that the district court “should have precluded [the disclosing party‘s] use of the [non-disclosed witness‘s] testimony due to his clear violation of”
¶89 Johansen is binding on this court. While that case dealt with the complete failure to disclose as opposed to an inadequate or incomplete disclosure, it is not meaningfully distinguishable from the instant case because the most critical part of the expert disclosure in both cases—any opinion whatsoever—was missing. For this reason, the result should be the same here. In acknowledging the “harsh” result of exclusion, the Johansen court “warned once more” that disclosing parties face a significant risk that “untimely, inadequate, or skipped” disclosures will be found insufficient and the challenged “evidence or . . . witness may not be allowed.” Id. ¶ 32 n.10 (emphasis added) (cleaned up).
¶91 Specifically, the supreme court explained that the process does not become a “free-for-all” just because a party elects to depose an expert. Id. ¶ 23. The court based its conclusion on the presumption of exclusion found in
¶92 Similarly, in Segota v. Young 180 Co., 2020 UT App 105, 470 P.3d 479, we explained that an opposing party‘s actual notice of witnesses or potential evidence did not render harmless the disclosing party‘s failure to comply with the disclosure rules. Id. ¶ 21.
Although the defendants might have—before receiving Segota‘s disclosures—made some assumptions, or even had suspicions, about the identity of the witnesses and evidence Segota might use in an attempt to prove her claims, they did not actually know the scope of Segota‘s case until finally receiving her belated disclosures. One party‘s ability to guess at what the other party‘s disclosures might be, had they been timely made, does not relieve the other party from its obligation to definitively inform her litigation opponent, through disclosures, about the witnesses and documents she plans to use to prove her case.
Id. (cleaned up).
¶93 Although we acknowledged that another judge might have handled the situation differently, id. ¶ 22, we did not say that the district court was required to blunt or ameliorate that harm created by the disclosure failure. Indeed, even where an appellate court may have ruled differently, a district court‘s “discretionary call” will be affirmed in this context. See, e.g., De La Cruz v. Ekstrom, 2024 UT App 18, ¶ 11, 545 P.3d 285.
¶94 Importantly, the Al-Imaris do not ask us to overrule any of the aforementioned cases. Nor could we overrule the supreme court‘s decision in Arreguin-Leon. See State v. Dickerson, 2022 UT App 56, ¶ 36 n.4, 511 P.3d 1191 (“Vertical stare decisis . . . compels a court to follow strictly the decisions rendered by a higher court.” (cleaned up)). Thus, the applicable precedent makes clear that the district court should be affirmed in this case. Until now, we have never held that a district court can tailor a sanction short of exclusion when it finds some harm under
¶95 Ultimately, the result in Segota obtained even though the outcome was harsh. 2020 UT App 105, ¶ 25. Indeed, without the evidence, the disclosing party could not oppose a motion for summary judgment. Id. The court implicitly brushed aside the objection that the result was overly harsh, explaining that “the court‘s summary judgment decision follow[ed] logically from its imposition of the discovery sanction.” Id. ¶ 24. The same result should obtain here, harsh though it may be.
V. A Warning of a Harsh Result
Implicit in all of this is that neither the district court in this case, nor any district court, is required by the rules to make any attempt to ameliorate or blunt the resultant prejudice which occurs when a party ignores disclosure requirements.
Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 48, 493 P.3d 1131 (Mortensen, J., concurring, joined by Pohlman, J.)
¶97 On appeal, the Al-Imaris do argue—briefly—that a harmlessness analysis “leans firmly” in their favor because they “requested the opportunity to file a supplemental disclosure.” For reasons I have already explained, however, it is not enough merely to offer to supplement a disclosure. Under
¶98 To be sure, the rule speaks to exclusion, not to the consequence of exclusion (e.g., the proverbial civil “death penalty“). But we have previously acknowledged that the consequence for violating our disclosure rules can be harsh. And I think the consequence is implied: let the chips fall as they may. If anyone knows whether evidence or a particular witness is critical to—or even potentially determinative of—a legal claim or defense, it‘s the disclosing party. That party should therefore be doubly sure that its disclosure is sufficient. On this point, we have expressly counseled that, if anything, a party should over-disclose. See RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 30, 392 P.3d 956 (“A disclosing party who endeavors, by stratagem or otherwise, to disclose as little as possible faces a significant risk that the disclosure will be found insufficient and the evidence or the witness may not be allowed. To minimize this risk, disclosing parties should be liberally forthcoming rather than minimally compliant and risk the possible consequences of testimony exclusion.” (cleaned up)). Here, the disclosing parties were remarkably lackadaisical, given their failure to disclose any opinion whatsoever. And disclosing this extra information would have been so easy that it makes the failure to do so seem all the more conspicuously inexplicable.
¶99 Utah‘s appellate caselaw repeatedly reflects such harsh results. In addition to Johansen, De La Cruz, and Arreguin-Leon, this court affirmed a grant of summary judgment—obviously a harsh result—where an expert was not disclosed in Ghidotti v. Waldron, 2019 UT App 67, ¶ 1, 442 P.3d 1237. One of the plaintiffs, Darnell, desired to testify as a non-retained expert. Id. ¶ 7. The Ghidottis maintained that they implicitly disclosed Darnell as an expert
¶100 Circling back, in Johansen, this court expressly recognized,
This result may seem harsh, but as this court recently stated, if litigants are tempted to play fast and loose with our discovery rules, then they run the risk of losing it all. And the fact that we sometimes uphold a district court‘s ruling in this regard should offer no solace or refuge to parties if they determine to ignore the rules. Our discovery rules are written to be followed, and if parties determine that they want to skirt around them, then let them be warned once more that they face a
significant risk that an untimely, inadequate, or skipped disclosure will be found insufficient and the evidence or the witness may not be allowed.
2021 UT App 130, ¶ 32 n.10 (cleaned up). The Johansen court‘s warnings anticipated this case. Despite its acknowledgment that the disclosure in this case was deficient, the majority declines to follow through on these long-announced warnings.
VI. The Future: Practical Implications of the Majority Opinion
What‘s a District Court to Do?
¶101 The majority‘s holding really seems to be based on the apparent drawbacks of the policy of presumed exclusion under
¶102 Reading presumed exclusion out of the rule will likely make RJW Media‘s, Hansen‘s, and Johansen‘s warnings completely illusory. See RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 30, 392 P.3d 956 (warning litigants about the danger of making “minimally compliant” disclosures—i.e., exclusion of witnesses and evidence); Hansen, 2021 UT App 54, ¶ 49 (Mortensen, J., concurring, joined by Pohlman, J.) (cautioning litigants against “play[ing] fast and loose with our discovery rules“); Johansen v.
¶103 Similarly, the majority‘s approach will undoubtedly cause confusion among district courts and practitioners alike. Indeed, the majority‘s analysis suggests that a district court, when it finds a disclosure inadequate, can be unreasonable when it excludes the inadequately disclosed evidence, even when that sanction is presumed under the applicable rule. The exception to exclusion will always swallow the rule. Witness disclosures that do not include any actual opinion whatsoever will not result in exclusion as long as a supplementation to the vague “summary” is offered before the trial court rules on exclusion. A defective damages disclosure—or worse yet, a failure to provide any calculation of damages—will easily pass muster so long as the required numbers and calculations are provided before the trial court rules on a motion to exclude the challenged damages. This, again, contravenes long-established precedent. See, e.g., Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, ¶¶ 2, 8, 445 P.3d 434 (affirming district court‘s exclusion of damages based on plaintiff‘s failure to disclose and court‘s subsequent grant of summary judgment on all of plaintiff‘s legal claims); Sleepy Holdings LLC v. Mountain West Title, 2016 UT App 62, ¶¶ 1, 3–4, 370 P.3d 963 (affirming district court‘s grant of summary judgment when disclosing party failed to disclose $2 million damages computation until a year after discovery closed).
¶104 Stated simply, the majority‘s approach will invite ambush tactics and potentially incentivize recipient parties to defer
¶105 In sum, I doubt the trial bench will look forward to returning to the days of ambush by both sides rather than the orderly disclosure of information that rule 26 attempted to achieve. As long as the standard allows for any defects in disclosure to be cured up to (and apparently beyond) the time of a ruling on exclusion, litigants will game the system and foist a much more onerous and indecorous burden on our trial judges. Lazy or gaming disclosing parties will now know that as long as they fix the issue before the hearing on the motion to strike, they‘ll likely still be able to use the witness. Ever conscious of this possibility, calculating recipients will wait until trial to spring their objections on the trial courts and disclosing parties. The majority may accuse me of exaggerating the potential implications of its opinion, but its approach provides no logical limiting principles.
¶106 Thus, for very practical reasons, I simply cannot sign on to an approach that is inconsistent with the clear purpose of protecting the orderly unfolding of trials that the plain language of
Because she timely disclosed no witnesses or documents, and because the district court imposed the rule 26(d)(4) sanction upon her, [the plaintiff] was not entitled to use any witnesses or documents at trial. A litigant in such a situation has no way to prove her case. And under such circumstances, the district court did not err by granting summary judgment in the defendants’ favor.
¶107 Based on its holding that the district court erroneously excluded Expert‘s testimony, the majority does not address whether summary judgment was appropriate in light of the remaining evidence. As I‘ve explained, however, the district court properly excluded that testimony when the Al-Imaris failed to demonstrate harmlessness or good cause for the deficient disclosure. I therefore address the Al-Imaris’ fallback arguments, which can be boiled down to a single assertion: based on the particulars of this case, Expert‘s testimony was not necessary to stave off summary judgment. In this part, I briefly re-recite the relevant background, set forth the applicable legal standards, and explain why the district court properly granted summary judgment in this case.
A. Relevant Background
¶108 The Al-Imaris sued UDOT and Staker for negligence. The complaint alleged that Staker—and by extension, UDOT23—owed
¶109 The Al-Imaris disclosed that Expert would testify about various topics that the majority assumes related to the standard of care and causation. Supra ¶ 30. The district court excluded Expert‘s testimony based on what the majority concedes was a deficient disclosure. E.g., supra ¶ 28. UDOT and Staker then moved for summary judgment, arguing that the Al-Imaris could not establish a prima facie negligence claim without expert testimony. The court agreed and granted the motion from the bench. In a written order memorializing the ruling, the court explained,
As to duty, the [c]ourt finds that this is the type of case which requires an expert opinion or opinions as to the proper standard of care as to the road conditions, actions of Staker and/or UDOT, including signage before, during or after the road project, the application of materials including paving, the treatment of asphalt and other materials, or the application of any of the foregoing given the weather conditions, including inclement weather at the time of the subject accident. The [c]ourt finds that the understanding of these duties is beyond the grasp of a typical jury and requires . . . specialized knowledge of an expert.
B. Standard of Review
¶110 We have consistently explained that “summary judgment is appropriate if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Nassi v. Hatsis, 2023 UT App 9, ¶ 20, 525 P.3d 117 (cleaned up). While “the moving party always bears the burden of establishing the lack of a genuine issue of material fact, . . . the burden of production of evidence may fall on the nonmoving party (if that party will bear the burden of production at trial).” Salo v. Tyler, 2018 UT 7, ¶ 2, 417 P.3d 581. In such cases, “the moving party may carry its burden of persuasion without putting on any evidence of its own—by showing that the nonmoving party has no evidence to support an essential element of a claim.” Id.
¶111 “In order to prevail in an action for negligence, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused (4) the plaintiff to suffer legally compensable damages.” Cope v. Utah Valley State College, 2014 UT 53, ¶ 11, 342 P.3d 243. “Where the average person has little understanding of the duties owed by particular trades or professions, expert testimony must ordinarily be presented to establish the standard of care.” Ross v. Epic Eng‘g, PC, 2013 UT App 136, ¶ 14, 307 P.3d 576 (cleaned up). We have often required expert testimony “to establish the standard of care for medical doctors, architects, engineers, insurance brokers, and professional estate executors.”
C. Discussion
¶112 The Al-Imaris argue that summary judgment was inappropriate even without Expert‘s testimony for two reasons. First, they claim that the “well pled facts” of their complaint “plainly allege[d] that [UDOT and Staker] created the situation that caused” their damages. Second, they maintain that they cited some evidence to support their negligence claim in their opposition to the motion. Both arguments are fatally flawed.
¶113 The Al-Imaris’ first argument is easily addressed. When opposing a motion for summary judgment, a party may not rely on “mere allegations or denials” from its pleading. Evans v. Huber, 2016 UT App 17, ¶ 10, 366 P.3d 862 (cleaned up). Instead, the party “must set forth specific facts showing that there is a genuine issue for trial” by pointing “to relevant materials, such as affidavits or discovery materials.” Id. (cleaned up). The allegations in the complaint simply were not competent evidence for purposes of the court‘s summary judgment ruling.
¶114 The Al-Imaris’ second argument fares little better than their first. They state generally that UDOT and Staker “knew or had reason to know that the conditions created by [Staker‘s] construction were unsafe for motorists.” In fact, nothing in the cited materials suggests that UDOT or Staker knew or had reason to know about the allegedly unsafe condition prior to the accident. The closest the Al-Imaris have come to establishing this fact is a journal entry from an alleged Staker employee in which the
¶115 The Al-Imaris also argue that “uncontroverted testimony on the record [showed] that no signage or other warnings for motorists existed relating to the conditions present on the road where [the Al-Imaris] were injured.” This represents a closer call. In their opposition to the motion for summary judgment, the Al-Imaris cited deposition testimony from a witness who stated that there were no “Slippery When Wet” or “Caution” signs around the area where Staker repaved the road. Moreover, the police report indicated that the crash had not occurred in a work zone, which lends further support to a conclusion that the Al-Imaris had no warning of a potentially unsafe condition created by Staker. In a vacuum, this evidence may have helped preclude summary judgment. See United Fire Group, 2014 UT App 170, ¶¶ 13–14 (explaining that a negligence claim in an ostensibly similar case didn‘t require expert testimony when it was based on the defendant‘s failure to place “signs or devices to warn or guide [the plaintiff] away from danger“).
¶116 The problem, however, is twofold. First, as already noted, the Al-Imaris adduced no competent evidence that Staker created the condition that caused the crash. Second, while the police report suggests that “a very slick patch of oil” caused the crash, the Al-Imaris conceded that “[i]t started raining 10–15 minutes before the subject accident” and that the “rain was heavy and one could see the water running off the road.” Without an expert to testify in this situation, the factfinder would have been left to speculate as to which factor—the rain or the oil—caused the crash, which necessitated summary judgment. See, e.g., Scott v. HK Contractors, 2008 UT App 370, ¶ 17, 196 P.3d 635 (“A finding of
¶117 The Al-Imaris’ second argument is also based on a flawed understanding of the law on summary judgment in Utah. As noted above, “where the burden of production falls on the nonmoving party, . . . the moving party may carry its burden of persuasion without putting on any evidence of its own—by showing that the nonmoving party has no evidence to support an essential element of a claim.” Salo, 2018 UT 7, ¶ 2 (emphasis added). The Al-Imaris read far too much into the “no evidence” language from Salo. There, the court expressly adopted the summary judgment standard articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Salo, 2018 UT 7, ¶ 2.
¶118 In the Celotex and Salo context, the party moving for summary judgment must show that the nonmoving party lacks the evidence to make out a prima facie case. See Celotex, 477 U.S. at 322 (“In our view, the plain language of
CONCLUSION
¶119 The majority correctly holds that the Al-Imaris’ expert disclosure was deficient. Because the Al-Imaris do not meaningfully attack the district court‘s finding that the deficiency was harmful, that should be the end of the matter. The majority‘s holding to the contrary is at odds with the plain language of