MARTIN J. DIERL, Appellant, υ. BARRY M. BIRKIN, Appellee.
No. 20210756-CA
THE UTAH COURT OF APPEALS
January 20, 2023
2023 UT App 6
Third District Court, Silver Summit Department; The Honorable Richard E. Mrazik; No. 170500532
David E. Ross II, Attorney for Appellant
George T. Naegle, Cortney Kochevar, Kristina H. Ruedas, and Aaron T. Cunningham, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred.
MORTENSEN,
¶1 After being injured at a ski resort, Martin J. Dierl underwent a CT scan, which was interpreted by Dr. Barry M. Birkin as being normal. In reality, the scan showed a tumor in Dierl‘s brain. Some nine months later, after the tumor became symptomatic, Dierl learned of the tumor and had surgery to remove it. He suffered complications associated with the surgery, including permanent partial loss of vision and pituitary gland damage. Dierl sued Birkin for malpractice.
¶2 The district court granted summary judgment to Birkin because Dierl offered no admissible expert testimony establishing that Birkin‘s failure to diagnose Dierl‘s brain tumor nine months earlier proximately caused Dierl‘s injuries. Dierl appeals, arguing that two expert witness affidavits should have been admitted to establish that Dierl sustained worse complications from surgery than he would have sustained if he had undergone surgery earlier. Because we conclude that the trial court appropriately exercised its discretion in excluding both affidavits, we affirm.
BACKGROUND1
¶3 Dierl was injured at a ski resort in Park City in February 2015 and was taken by ambulance to an emergency room. The attending physician ordered a CT scan of Dierl‘s brain. Birkin, a radiologist, interpreted Dierl‘s CT brain scan and reported it as a “[n]egative CT,” stating that “[t]here are no intracranial masses.”
¶4 Beginning in November 2015, Dierl began experiencing “severe headaches, loss of balance, dizziness, speech impediment, memory loss[,] and loss of vision.” Dierl saw another doctor, who requested another CT brain scan, along with the records from the earlier brain scan. This doctor “informed Dierl that he had a large tumor in his brain and that was the reason for his suffering and loss of vision.” The doctor “also informed Dierl that the tumor was visible in the [earlier scan] and inquired whether [anyone had] informed him of this large brain tumor.” “Dierl stated that no one had told him” about the tumor after the earlier scan. In December 2015, “Dierl underwent a right pterional craniotomy2 for resection of the tumor.”
¶5 Dierl later filed a complaint for medical negligence against Birkin. Dierl alleged that Birkin “breached the standard of care in failing to diagnose Dierl‘s brain tumor,” which “grew and placed pressure against his optic nerves and pituitary [gland].” Dierl further asserted that Birkin‘s “breach of the
¶6 Dierl timely disclosed a neurosurgeon (Neurosurgeon 1) as an expert witness. Birkin elected to take Neurosurgeon 1‘s deposition, wherein Neurosurgeon 1 testified that the tumor grew by four millimeters—from twenty to twenty-four millimeters—over the course of the nine months following the February 2015 CT scan. Neurosurgeon 1 also testified that had the tumor been detected in February 2015, it was “most likely that surgical treatment, direct craniotomy, would have been carried out,” as it had been in December 2015. Neurosurgeon 1 agreed that—regardless of the size of the tumor—this type of surgery carries certain risks, including “pituitary dysfunction, visual impairment, fluid leak, incomplete resection, [and] damage to the hypothalamus.” And Neurosurgeon 1 testified that following Dierl‘s surgery, Dierl did in fact experience “an increase in his visual loss and panhypopituitarism.”3 After this, the following exchange occurred:
Q. Can you say, to a reasonable degree of medical probability, that . . . Dierl would not have experienced an increase in his visual loss or panhypopituitarism if the surgery had been performed in February 2015?
A. Well, my opinion is that his risk of those [complications] would be less, had he had surgery in or around February 2015, as compared to December of 2015.
Q. That‘s fair. And my question is a little bit different, though. I understand that you—it‘s your opinion that there is an increased risk there, but can you say, to a reasonable degree of medical probability, that had . . . Dierl undergone surgery in February of 2015, that he would not have had an increased visual loss?
A. No.
Q. And can you say, to a reasonable degree of medical probability, that had . . . Dierl undergone surgery in February of 2015, that he would not have experienced complications related to panhypopituitarism?
A. No.
. . . .
Q. My question is, can you say, to a reasonable degree of medical probability, that had . . . Dierl undergone surgery in February of 2015, that he would not have the exact same injury to his vision today?
A. No, because I would be—I would be speculating.
Q. Okay. Same question in regards to his panhypopituitarism. . . . [H]ad the surgery been completed in February of 2015, can you say, to a reasonable degree of medical probability, that . . . Dierl would not have experienced the exact same injury to his pituitary gland that he experienced following his surgery in December of 2015?
A. No.
¶7 Later, Birkin filed a motion for summary judgment, arguing that Dierl had “failed to establish a prima facie case of medical negligence against Birkin with expert testimony” because “Dierl‘s only causation expert failed to establish that any delay in diagnosis of . . . Dierl‘s tumor caused . . . Dierl actual damages.” Birkin further argued that Dierl‘s “reliance upon merely an increased risk of surgical complication, but nothing more, does not amount to actual damages and cannot sustain a cause of action for medical negligence.”
¶8 Dierl opposed the motion and provided a new affidavit by Neurosurgeon 1 stating, “Affiant opines that due to the significant enlargement of the tumor from February 2015 to December 2015[,] Dierl‘s vision loss was greater than it would have been if the surgery had been conducted in February or thereabouts instead of December 2015.” The affidavit continued, “Affiant states that based only on a February 2015 CT brain scan [without] contrast showing a 20 mm size tumor, he could not opine to any medical degree of certainty or probability as to any injury . . . Dierl may have sustained from a craniotomy in February 2015.”
¶10 Later, Dierl filed a motion under
¶11 The district court held oral arguments on both motions. After argument, the court gave an oral ruling indicating that the “deposition testimony from [Dierl‘s] designated expert shows that [Dierl did] not have any expert testimony” asserting “that the delay in surgery from February 2015 to December 2015 proximately caused any increase in . . . Dierl‘s vision loss or any increase in his pituitary dysfunction or otherwise that the outcome would have been different had the surgery occurred earlier than it did.” Accordingly, the court reasoned, Dierl was “left with a lack of evidence of an essential element of [his] claim.” The court then considered Neurosurgeon 1‘s affidavit testimony, stating that if it was admissible, it would create a “genuine issue of material fact as to whether [Dierl] can prove proximate cause.” However, the court relied on Webster v. Sill, 675 P.2d 1170 (Utah 1983), to exclude the affidavit for this purpose, stating that when one “stakes a clear position in a deposition that is not modified on cross-examination, he may not thereafter raise an issue of fact by his own affidavit which contradicts his deposition unless he can provide an explanation of the discrepancy.” The court reasoned that “[t]here simply [was] no explanation for the about face that [Neurosurgeon 1] makes in . . . his affidavit,” and stated that “[a]bsent any such explanation[,] the Court is left with no other conclusion than [that Dierl] is directly raising a genuine issue of fact through a contradictory statement that is made without explanation or context and under Webster v. Sill that is not permitted.”
¶12 As to the admissibility of Neurosurgeon 2‘s affidavit, the court stated that it had not been “produced as part of [Dierl‘s] initial expert disclosures [related to his] case in chief as required by”
ISSUES AND STANDARDS OF REVIEW
¶14 Dierl asserts that the district court erred in granting Birkin‘s motion for summary judgment. However, Dierl does not ask us to decide whether the district court‘s ultimate grant of summary judgment was erroneous, assuming both expert witnesses’ affidavits were inadmissible. Instead, he presents two issues, both about the admissibility of the experts’ affidavits.4
Therefore, the questions before us are really whether the expert witness affidavits were properly excluded—Neurosurgeon 1‘s for being inconsistent with his deposition testimony and therefore ineligible to create a genuine issue of material fact, and Neurosurgeon 2‘s for being barred from use in Dierl‘s case-in-chief because Neurosurgeon 2 was disclosed only as a rebuttal expert.
¶15 “Two different standards of review apply to [Dierl‘s] claims regarding the admissibility of evidence. The first standard of review, correctness, applies to the legal questions underlying the admissibility of evidence.” State v. Griffin, 2016 UT 33, ¶ 14, 384 P.3d 186 (cleaned up). “The second standard of review, abuse of discretion, applies to the trial court‘s decision to admit or exclude evidence . . . .” Id.; see also Murdock v. Springville Mun. Corp., 1999 UT 39, ¶ 25, 982 P.2d 65 (applying the abuse of discretion standard to a district court‘s decision rejecting affidavits). “Under the abuse of discretion standard, we will not reverse unless the decision exceeds the limits of reasonability.” Griffin, 2016 UT 33, ¶ 14 (cleaned up).
ANALYSIS
¶16 “If a defendant can show that the plaintiff has no legally sufficient evidentiary basis for its claims at trial, the defendant may establish the lack of a genuine issue of material fact and an entitlement to judgment as a matter of law.” Salo v. Tyler, 2018 UT 7, ¶ 31, 417 P.3d 581. Furthermore, where the plaintiff bears the burden of proof at trial on the issue in question, a defendant “may make that showing without adducing any affirmative evidence of its own.” Id.
¶17 For a prima facie case of “medical malpractice, a plaintiff must establish (1) the standard of care by which the physician‘s conduct is to be measured, (2) breach of that standard by the physician, (3) injury that was proximately caused by the physician‘s negligence, and (4) damages.” See Jensen v. IHC Hosps. Inc., 2003 UT 51, ¶ 96, 82 P.3d 1076 (cleaned up). Birkin asserted, and the district court agreed, that Dierl had not satisfied “the third element of medical malpractice—whether . . . Dierl‘s injury was proximately caused by Birkin‘s purported negligence.” “A plaintiff‘s failure to present evidence that, if believed by the trier of fact, would establish any one of the elements of the prima facie case justifies a grant of summary judgment to the defendant.” Niemela v. Imperial Mfg., Inc., 2011 UT App 333, ¶ 7, 263 P.3d 1191 (cleaned up).
¶18 To satisfy this element and survive Birkin‘s motion for summary judgment,
¶19 In medical malpractice cases, proximate cause is ordinarily established through expert testimony. See Ruiz v. Killebrew, 2020 UT 6, ¶ 11, 459 P.3d 1005 (“To ensure that the jury is not left to speculate, plaintiffs may not provide just any evidence of proximate cause: They must generally produce expert testimony that the medical professional‘s negligence proximately caused the plaintiff injury.” (cleaned up)); Nixdorf v. Hicken, 612 P.2d 348, 354 n.17 (Utah 1980) (“The plaintiff also has the burden of proving the negligence of the defendant was the proximate cause of the injury. This proof requires some expert testimony in medical malpractice cases.“). Accordingly, after the district court excluded the affidavits of both Neurosurgeon 1 and Neurosurgeon 2, it then ruled that Dierl did “not have admissible evidence . . . that the delay in diagnosis of [his] brain tumor would have proximately caused any damage.” We review the district court‘s exclusion of each expert‘s affidavit in turn.
I. Neurosurgeon 1‘s Affidavit
¶20 The district court excluded Neurosurgeon 1‘s affidavit on the basis that it contradicted his deposition testimony and therefore could not be used to raise a genuine issue of fact regarding causation. We agree.5
¶21 In Webster v. Sill, 675 P.2d 1170 (Utah 1983), a tenant sued a landlord after the tenant‘s toe was severed by a lawnmower when the tenant slipped while mowing the lawn. Id. at 1171. “On deposition, the [tenant] testified that when he started to mow, he was unaware that the grass was wet or damp,” that “[h]e first concluded that the grass was wet and slippery only after he had spoken to [two other individuals] seven or eight days after the accident,” and that these individuals “told the [tenant] that the grass had been watered the day of the accident.” Id. at 1172. “On the basis of the [tenant‘s] deposition testimony, [the landlord] moved for summary judgment on the ground that the [tenant‘s] own admission established that there was no genuine issue of fact as to whether a dangerous condition existed which caused the accident.” Id. “After the deposition, the [tenant] filed an affidavit that impliedly, if not directly, contradicted a critical part of his deposition,” stating that an agent of the landlord “without [the tenant‘s] knowledge sprinkled a part of the lawn so that the lawn became wet and slippery,” resulting “in the injury to the [tenant] in that the [tenant] slipped on the wet, slippery grass.” Id. The court identified discrepancies between the tenant‘s deposition and affidavit as to when the tenant attributed the slip to the grass being wet and as to the timing and duration of the watering, concluding that the tenant‘s “theory of a dangerous condition [arose] from speculation based on what others told [him,] and that speculation was contrary to his deposition.” Id. at 1173.
¶22 The court acknowledged that “[t]he purpose of summary judgment is not to weigh the evidence.” Id. at 1172. But the court declared that “when a party takes a clear position in a deposition, that is not modified on cross-examination, [the party] may not thereafter raise an issue of fact by [its] own affidavit which contradicts [its] deposition unless [it] can provide an explanation of the discrepancy.” Id. at 1172-73. The court noted that this rule “must be administered with care” as “[i]t is common knowledge that witnesses sometimes misstate themselves, may not properly understand the question propounded, or give equivocal answers.” Id. at 1173. It also stated that this
¶23 Applying this reasoning to the expert testimony here, we reach a similar conclusion. In Neurosurgeon 1‘s deposition, Birkin‘s counsel asked whether Neurosurgeon 1 could “say, to a reasonable degree of medical probability, that had Dierl undergone surgery in February of 2015, . . . he would not have the exact same injury to his vision today.” And Neurosurgeon 1 responded, “No, because I would be—I would be speculating.” Then Birkin‘s counsel asked whether Neurosurgeon 1 could “say, to a reasonable degree of medical probability, that . . . Dierl would not have experienced the exact same injury to his pituitary gland that he experienced following his surgery in December of 2015,” and Neurosurgeon 1 again answered, “No.” This directly contradicts the testimony in Neurosurgeon 1‘s affidavit “that due to the significant enlargement of the tumor from February 2015 to December 2015[,] Dierl‘s vision loss was greater than it would have been if the surgery had been conducted in February or thereabouts instead of December 2015.”
¶24 Dierl asserts that “there are some inconsistencies in the deposition itself” but that Neurosurgeon 1 did “state that the delay caused by Birkin‘s negligent failure to call out the brain tumor . . . cause[d] Dierl harm, increased risk of harm, increased his risk of permanent vision loss, etc.” But Dierl does not provide any statements from Neurosurgeon 1‘s deposition indicating that Dierl‘s actual injuries—as opposed to the risk of injuries—were caused by the delayed diagnosis. Cf. Sohm v. Dixie Eye Center, 2007 UT App 235, ¶ 21, 166 P.3d 614 (“Even if [the doctor‘s] affidavit contradicts his deposition testimony, which we do not think it does, the same inconsistencies existed within the deposition testimony itself.” (cleaned up)). Accordingly, Neurosurgeon 1‘s affidavit contradicts his deposition testimony and cannot be used to raise a genuine issue of material fact unless “there is some substantial likelihood that the deposition testimony was in error for reasons that appear in the deposition or [Neurosurgeon 1 was] able to state in his affidavit an adequate explanation for the contradictory answer in his deposition.” See Webster, 675 P.2d at 1173.
¶25 There is no “substantial likelihood that the deposition testimony was in error for reasons that appear in the deposition.” See id. Like in Webster, Neurosurgeon 1 “testified in his deposition directly on the issue of causation” and gave an “answer [that] was clear and unequivocal.” See id. The text of the deposition makes it clear that Neurosurgeon 1 understood the questions and that his position was that he could not state that Dierl would not have had the same injuries had the surgery been performed in February 2015.
¶26 And Neurosurgeon 1 did not provide “in his affidavit an adequate explanation for the contradictory answer in his deposition.” See id. We have stated that “[w]e do not have to be persuaded by the explanation or even find it compelling,” and “[a]s long as it is plausible, the fact finder should be allowed to weigh the credibility of the explanation.” Gaw v. Department of Transp., 798 P.2d 1130, 1141 (Utah Ct. App. 1990). But the only statement in the affidavit that seems to attempt to explain the discrepancy is one stating that “based only on a February 2015 CT brain scan [without] contrast showing a 20 mm size tumor, [Neurosurgeon 1] could not opine to any medical degree of certainty or probability as to any injury . . . Dierl may have sustained from a craniotomy in February 2015.” This does not adequately explain the discrepancy, as Neurosurgeon 1 does not state that his affidavit testimony was based
II. Neurosurgeon 2‘s Affidavit
¶27 Dierl presents three arguments as to why Neurosurgeon 2‘s affidavit should not have been excluded. First, Dierl argues that the affidavit was improperly excluded under Rule 26 the Utah Rules of Civil Procedure. He asserts that rule 16 applies instead and that the affidavit is admissible under this rule. Second, Dierl argues that Neurosurgeon 2‘s testimony can be used as rebuttal evidence. Third, Dierl argues that the court erred in “granting Birkin‘s motion for summary judgment without addressing Dierl‘s . . . Rule 56 Motion.” We address each argument in turn.
A. Rules 16 and 26
¶28 Dierl first notes that the district court “determined that since [Neurosurgeon 2‘s] disclosure was late, it could not be used in Dierl‘s case-in-chief pursuant to . . . [r]ule 26(d)(4), unless Dierl could show that there was good cause for the late disclosure or the late disclosure was harmless,” but he argues that “[r]ule 26(d)(4) on its face provides that only undisclosed witnesses are excluded and as [Neurosurgeon 2] was disclosed this [r]ule is inapplicable in this case.” Dierl asserts that his late disclosure of Neurosurgeon 2 falls instead under rule 16, which permits sanctions if a party violates a judge‘s scheduling order. See
¶29
¶30
¶31 Dierl bore the burden of proof on his medical negligence claim, so he was responsible for satisfying the terms of rule 26 for his case-in-chief. Dierl disclosed Neurosurgeon 2, but he did so only as a rebuttal expert and only after Dierl‘s disclosures for his case-in-chief were due. So while Neurosurgeon 2 was eventually disclosed as a rebuttal witness, he was not timely disclosed as
¶32 But Dierl disputes that he was required to show harmlessness, arguing that “[r]ule 26(d)(4) is clear on its face that if the ‘failure is harmless’ without any showing by Dierl, then the party may use the witness, document or material.” However, this position is at odds with applicable case law. “Under a plain language reading of rule 26(d)(4), the burden to demonstrate harmlessness or good cause is clearly on the party seeking relief from disclosure requirements . . . .” Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, 18 n.7, 445 P.3d 434; see also Vanlaningham v. Hart, 2021 UT App 95, ¶ 20, 498 P.3d 27 (“As the party seeking relief from her rule 26 disclosure requirements, [the plaintiff] bears the burden to demonstrate harmlessness or good cause.“); Blank v. Garff Enters. Inc., 2021 UT App 6, ¶ 22, 482 P.3d 258 (“The failure to comply with the disclosure requirements of rule 26 require[es] the exclusion of that evidence unless the [plaintiffs] show[] that their failure to disclose was either harmless or excused by good cause.“);
¶33 And this is for good reason. In Blank v. Garff Enterprises Inc., 2021 UT App 6, 482 P.3d 258, we noted that “the orderly resolution of cases, particularly complex cases . . ., requires timely disclosure and the ability to rely on what has—and has not—been disclosed to chart out the next steps to move litigation to conclusion.” Id. ¶ 23 (cleaned up); see also
¶34 Additionally, it is notable that Dierl‘s disclosure of Neurosurgeon 2 came after Birkin had filed his motion for summary judgment and after the hearing on that motion had been scheduled. We have noted that “allowing parties to disclose expert opinions that are central to a case only in response to a dispositive motion would seriously frustrate the orderly resolution of these kinds of cases.” Blank, 2021 UT App 6, ¶ 23 (cleaned up). Like the defendant in Blank, Birkin “relied on the lack of expert testimony when [he] incurred the effort and expense of preparing a motion for summary judgment on [Dierl‘s] claims.” Id.; see Segota v. Young 180 Co., 2020 UT App 105, ¶ 22, 470 P.3d 479 (concluding discovery violations were not harmless where they “caused the defendants to file and litigate motions, necessitating the expenditure of attorney fees and costs“). Dierl wants us to allow through the back door what should have been disclosed upfront, and permitting Dierl to use his rebuttal expert to establish an essential element of his prima facie case essentially renders rule 26‘s deadline for a plaintiff‘s expert disclosures meaningless. We decline to invite parties bearing the burden of proof to leave essential elements of their claims unsupported until after opposing parties have filed dispositive motions. Accordingly, we conclude that the district court properly exercised its discretion in ruling that Dierl violated rule 26 and could not use Neurosurgeon 2‘s testimony for his case-in-chief.
¶35 Dierl next argues that Neurosurgeon 2‘s testimony should be admitted as rebuttal evidence against Birkin‘s expert witness, who “opin[ed] generally no tumor growth between February 2015 and December 2015, thus concluding no harm to Dierl.” Dierl asserts that “he did not and could not have anticipated the evidence [Neurosurgeon 2] disclosed for his rebuttal evidence; in particular that there was substantial growth of Dierl‘s brain tumor in the [cephalo-caudal] dimension” between February 2015 and December 2015. Dierl argues that this “evidence should not be excluded from rebuttal merely because it could have been made part of the case-in-chief.”
¶36 But Dierl‘s argument here is misguided in several ways. First, the district court was not restricting what Neurosurgeon 2 would be able to testify on rebuttal, if the case were to proceed, but rather ruled that Neurosurgeon 2‘s testimony was not admissible in Dierl‘s case-in-chief. Second, and relatedly, the issue Dierl claims to rebut with Neurosurgeon 2‘s testimony is not the dispositive issue. The district court dismissed the case because Dierl had not provided admissible evidence of causation. So Dierl‘s claim that Neurosurgeon 2‘s testimony rebutted Birkin‘s expert‘s opinion about “no tumor growth” is irrelevant to our inquiry. Dierl‘s case failed for lack of proof in the case-in-chief; in such a situation, there is nothing to rebut.
C. Rule 56
¶37 Finally, Dierl argues that the district court should have admitted Neurosurgeon 2‘s affidavit under rule 56 of the Utah Rules of Civil Procedure. He also argues that the district court did not actually rule on his motion on this point.
¶38
¶39 As to Dierl‘s argument that the district court erred in not admitting Neurosurgeon 2‘s testimony under rule 56, we are not persuaded. While rule 56 does indeed provide judges with discretion to “give [parties] an opportunity to properly support or address the fact,” id., the rule also provides other options for dealing with unsupported assertions of fact—including considering a fact undisputed and granting a motion for summary judgment. See
¶40 Furthermore, Dierl is incorrect that the district court failed to rule on his motion. First, because granting summary judgment is one of the options available under rule 56, the district court‘s grant of summary judgment was, in effect, a ruling on this motion. But even more clearly, the district court‘s order—titled “Order Granting Defendant‘s Motion for Summary Judgment and Denying Plaintiff‘s Motion to Support Factual Position“—states that the court heard argument on both matters, and it clearly issued a ruling on both matters. The transcript of the hearing further indicates that the court considered and ruled on Dierl‘s motion to admit Neurosurgeon 2‘s affidavit. Therefore, we are convinced that the district court ruled on Dierl‘s motion and that its decision was reasonable.
CONCLUSION
¶41 The district court properly exercised its discretion in excluding the affidavits of both experts. Neurosurgeon 1‘s affidavit contradicted his deposition testimony without explanation, so it cannot be used to create a genuine issue of material fact. And Neurosurgeon 2 was not disclosed as a witness for Dierl‘s case-in-chief, so his testimony was properly excluded from consideration in Dierl‘s case-in-chief. Accordingly, the district