MEMORANDUM DECISION
€ 1 Plaintiffs Iris M. and Earl S. Spafford appeal a trial court's order granting Defendant Granite Credit Union's (Granite) motion for summary judgment. They raise an array of claims on appeal, central among them that the trial court erred in excluding their expert witness report and striking Earl Spafford's witness affidavit. We affirm.
12 "In reviewing a grant of summary judgment, we ... view the facts and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party." Sanders v. Leavitt,
T3 The Spaffords allege that on April 4, 2005, Iris Spafford (Iris) was injured in a fall in the parking lot of one of Granite's branches. She was with her husband, Earl Spaf-ford (Earl), who had driven her there. While attempting to step onto the curb, she lost her balance and fell backward toward the drain, hitting her head on the asphalt of the parking lot. The Spaffords' complaint alleged "design and construction defects" and that the parking lot was in a dangerous condition. The Spaffords asserted two causes of action
14 Following a scheduling conference, the first scheduling order was signed by both parties in January 2008. Under it, the Spaf-fords were to serve their expert witness designations and reports by August 31, 2008. However, a second stipulated scheduling order was entered on July 28, 2008, which extended the date for service of the Spaf-fords' expert witness designations and reports to December 1, 2008. Third and fourth stipulated scheduling orders were also entered, extending the due date for the Spaf-fords' expert witness designations and reports to May 15, 2009. The Spaffords did not comply with the May 15, 2009 deadline.
15 On June 4, 2009, approximately three weeks after the Spaffords' expert witness designations and reports were due, counsel for the Spaffords withdrew. Granite timely served its expert witness disclosure and report on June 12, 2009. On June 29, 2009, the Spaffords filed pro se appearances.
16 On August 3, 2009, two and a half months after the expiration of the last scheduled due date, the Spaffords served their expert witness disclosure and report. They designated Clarence Kemp as their expert to testify to the matters set forth in Kemp's letter to the Spaffords' former counsel dated December 3, 2006 (the Kemp Letter). Kemp had provided multiple informal disclosures of his written report to Granite. However, the prior disclosures offered no opinion on the cause of Iris Spafford's fall. Granite filed a motion to strike the Spaffords' expert witness disclosure on the ground that it was untimely and that it failed to comply with the requirements of rule 26(a)(8)(B) of the Utah Rules of Civil Procedure. Two days later, Granite moved for summary judgment. Their motion was supported by a report from Granite's expert referring to, and criticizing, the Kemp Letter.
17 On September 23, 2009, the Spaffords filed an amended expert witness disclosure and a more detailed report from Kemp. Then on October 5, 2009, five months after their expert witness designations and reports were due, the Spaffords moved the trial court to grant them an extension of time until September 23, 2009, to file their expert witness disclosure and report. In addition, in opposition to Granite's motion for summary judgment, the Spaffords submitted the Affidavit of Earl Spafford (the Spafford Affidavit). Granite moved to strike the Spafford Affidavit on the grounds that it was conclusory, that it stated legal conclusions, and that it contained opinions on matters on which lay opinion testimony was inadmissible.
18 The trial court granted Granite's motion to strike the Spaffords' expert disclosure and report, its motion to strike the Spafford Affidavit, and its motion for summary judgment. The trial court also denied the Spaf-fords' motion for an enlargement of time.
19 Following these rulings, the Spaffords filed a motion to disqualify Judge Medley from the case, supported by another affidavit of Earl Spafford (the Affidavit of Prejudice). Granite filed an opposing memorandum. Judge Medley certified the motion to Associate Presiding Judge Paul G. Maughan, who denied the motion based on the "absence of credible evidence of actual bias arising out of Judge Medley's rulings."
910 First, the Spaffords contend that the trial court erred in denying their motion, filed pursuant to rule 6(b)(2) of the Utah Rules of Civil Procedure, seeking a fifth enlargement of the time to file their expert designations and expert reports.
{12 While granting the Spaffords' rule 6(b)(2) motion may well have been within the court's discretion on these facts, we cannot agree that denying it exceeded that discretion. The Spaffords had retained Kemp by December 2006 at the latest, Pursuant to the fourth amended scheduling order, they had until May 15, 2009, to designate him as their expert. Yet they did not designate him until August 3, 2009, and did not seek an extension of the final court-ordered expert disclosure deadline until October 5, 2009.
1 13 By way of exeuse for their nonecompliance with the final scheduling order, the Spaffords rely on the affidavit of their counsel stating that she believed the parties were operating under an informal, open-ended discovery schedule. In its oral findings, the trial court described that claim as "wholly inconsistent with the procedural history of this case, which included the scheduling order being amended on four occasions by written stipulation." The court additionally noted that "there is no written record whatsoever of any kind of open-ended flexible deadline schedule, ... not even a letter acknowledging any such verbal agreement, not even a fax communication." Furthermore, the court reminded the parties that it "had previously denied the plaintiffs' motion to vacate all scheduling orders and this question or issue of there being a verbal open-ended extension was not raised." In sum, considering "the totality of those cireum-stances" together with "the importance of expert disclosure deadline dates and a scheduling order in this kind of a case," where designation of an expert witness is "extraordinarily important," the court found "that there in fact was no such open-ended deadline schedule." On this record, we cannot agree that the court abused its discretion in concluding that the Spaffords' or their counsel's neglect of the court-ordered cutoff was not excusable.
114 Second, the Spaffords contend that the trial court abused its discretion in striking the disclosure of their expert witness and his report under rule 37(f) of the Utah Rules of Civil Procedure rather than imposing some lesser sanction. In particular, they argue that (1) their failure to timely serve their expert witness report was harmless because Granite had previously received a copy of the report and (2) the court should have fashioned a less "draconian" remedy, such as limiting Kemp's testimony to the seope of his report.
1 15 The Spaffords served their expert disclosure more than two months after the deadline, a date that had been extended four times by stipulation of the parties and order of the court. The trial court struck the disclosure and expert witness report as untimely. In addition, it ruled that the report did not conform to the requirements of rule 26(a)(8)(B) of the Utah Rules of Civil Procedure. This rule requires that an expert witness report include, among other information, "the qualifications of the witness ...; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years" Utah R. Civ. P. 26(a)(8)(B). Finally, the court ruled that, "at least in the initial report, the breach of duty or causation is not included within the scope of that report. So, even if that were consid
116 As a general rule, "(trial courts have broad discretion in managing the cases assigned to their courts." Preston & Chambers, P.C. v. Koller,
If a party fails to disclose a witness ... as required by Rule 26(a) or Rule[ ] 26(e)(1), ... that party shall not be permitted to use the witness ... at any hearing unless the failure to disclose is harmless or the party shows good cause for the failure to disclose. In addition to or in lieu of this sanction, the court on motion may take any action authorized by [rule 37](b)(2).
Utah R. Civ. P. 37(F). "This language mandates that a trial court exclude late-filed evidence, but also gives a trial court discretion to employ an alternative sanction 'in addition to or in lieu of exclusion." Posner v. Equity Title Ins. Agency, Inc.,
117 The Spaffords focus their argument on the prejudice prong of rule 37(f). They contend that their late expert witness disclosure did not prejudice Granite because Granite was already aware of the contents of Kemp's expert report. In support of this assertion, the Spaffords point to the fact that the report of Granite's expert, Larry Smilt-neek, refers to what the Spaffords refer to as the "Kemp report."
T 18 The Spaffords' brief is vague in referring to the various documents produced by Kemp. However, the sequence of expert disclosures is crucial,. The Kemp Letter is dated December 3, 2006. This letter was disclosed to Granite early on. However, on November 17, 2008, the Spaffords advised Granite that they had not yet selected their trial experts. The Spaffords filed their Disclosure of Expert Witness on August 8, 2009. This document attached the Kemp Letter. The Affidavit of Granite's expert, Larry Smiltneek, is dated August 19, 2009. The Spaffords' Amended Disclosure of Expert Witness is dated September 23, 2009. Finally, the Affidavit of Clarence Kemp, which is different from the Kemp Letter, is dated October 12, 2009. Accordingly, so far as we can tell from the record, only the Kemp Letter was served on Granite before May 15, 2009, or for that matter before Granite's expert filed his report. Accordingly, we are not convineed, as the Spaffords contend, that Granite "had foreknowledge of the Spaffords' expert and Mr. Kemp's report in its entirety" (Emphasis added.) It appears to us that what Granite had knowledge of was the Kemp Letter.
¶ 19 As the trial court correctly pointed out, however, the Kemp Letter omits much of the information required by rule 26(a)(8)(B). For example, the Kemp Letter does not include
the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Utah R. Civ. P. 26(a@)(8)(B). Nor does the Kemp Letter include "the substance of the facts and opinions to which the expert [wals expected to testify." Id. In fact, the Kemp Letter does not address causation at all. It does not mention the location of Iris's fall, nor does it state any opinion as to whether the condition of any portion of the Granite property caused her injuries. These facts refute the Spaffords' contention that Granite suffered no prejudice because it had received the "Kemp report" in a timely manner, or at least before its own expert produced his report. In short, the Kemp Letter did not serve the purpose of an expert disclosure.
1 20 In addition, the Spaffords argue that the trial court should have crafted a narrower sanction, such as limiting Kemp's testimony to "just what was contained in his [letter]." However, had Kemp's testimony in
121 Further, the Spaffords contend that "[the most draconian remedy the court could impose would be to strike the entire testimony of expert witness Clarence Kemp." This is far from the case. Although both parties cite Morton v. Continental Baking Co.,
{ 22 Third, the Spaffords contend that the trial court erred in striking Mr. Spafford's affidavit (or portions of it) as conclusory, stating legal conclusions, and containing matters that are not properly the subject of lay opinion testimony. Affidavits supporting or opposing summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Utah R. Civ. P. 56(e). Accordingly, affidavits containing allegations that "are not based on personal knowledge, lack foundation, are conclusory, and contain hearsay" may be stricken. Murdock v. Springville Mun. Corp. (In re Rights to Use of All Water),
[ 23 Here, the Spaffords contend that Mr. Spafford's affidavit contained well-founded factual observations made from personal knowledge that entitled him to testify to his personal observations of a lack of maintenance. Granite raised various objections to the competency of the affidavit, including that the affidavit's allegations of personal knowledge actually constitute legal or expert conclusions rather than statements of observed fact. The trial court struck Mr. Spaf-ford's affidavit to "the extent that Mr. Spaf-ford's affidavit attempts to offer those legal conclusions or expert conclusions on breach of duty and causation."
{24 The Spaffords' opening brief devotes two pages to this issue. It includes an apt summary of the law pertaining to affidavits submitted on summary judgment. However, it fails to apply that law to the affidavit at issue. It identifies no particular allegations in the five-page Spafford affidavit that the Spaffords contend were wrongly struck. It states merely that Earl "spoke in the verified affidavit, with proper foundation, as to the date, time, cireumstances, and personal observations he had made. There were multiple well founded factual observations made from personal knowledge from his affidavit alone that created competing inferences in favor of plaintiffs." Nor does the brief make any attempt to explain why, under the prevailing rules, the trial court abused its discretion in striking particular allegations. Finally, the Spaffords' argument makes no attempt to demonstrate prejudice, that is, the reasonable likelihood of a more favorable result on summary judgment had the allegations not been struck.
125 The argument is thus not adequately briefed. An adequately briefed argument "contain[(s] the contentions and rea
$26 Fourth, the Spaffords contend that the trial court erred in requiring expert witness testimony on the questions of breach of duty and causation. The Spaffords alleged that the curb in question was unusually tall, "tapered aggressively," and was "in a state of disrepair"; that Iris attempted to step up onto the curb with her right foot; that "as she went to lift her left foot, she did not get her foot up completely onto the higher part of the curb"; and that she "lost her balance and fell backward towards the drain hitting her head on the asphalt of the parking lot."
127 In moving for summary judgment, Granite relied on the affidavit of its expert witness, Larry Smiltneek. Smiltneck alleged that the top of the curb is nearly perfectly level, that he had observed many pedestrians negotiate it without hesitation or difficulty, and that the height of the curb in question is about the same height as an ordinary step. He opined that the asphalt pavement, curb, and sidewalk were not dangerous or defective and were not in violation of building code requirements. He further opined that Iris's backward fall was not caused by the condition of the pavement but by her loss of forward momentum due to something in her own physical condition.
1 28 In arguing that an expert witness was not necessary to establish causation, the Spaffords cite no cases involving curb or parking lot design or maintenance. Rather, they limit their argument to challenging the trial court's reliance on Fox v Brigham Young University,
129 On appeal the Spaffords contend that "there was not a sceintilla of evidence of Iris's medical condition including testimony nor records before the court on the motion for summary judgment, and Fox was wholly inapplicable to this matter." Unlike the plaintiff in Fox, the only evidence of Iris Spafford's medical condition before her fall, according to the Spaffords, was the Spafford Affidavit "testifying that Iris had no history of fractures, and that prior to the fall, she was an active, vibrant woman."
1 30 We agree with the Spaffords that Fox is factually distinguishable from this case. However, the question before the trial court was whether the Spaffords could establish
131 The trial court was correct that "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." Wycalis v. Guardian Title of Utah,
{ 32 The Spaffords have not demonstrated that this general rule should not apply here. Indeed, the case at bar is similar to Lay v. Jordan's Furniture, Inc., No. 10-P-1344,
€33 Fifth, the Spaffords contend that the trial court erred in granting Granite's motion for summary judgment. "Summary judgment is appropriate only where (1) 'there is no genuine issue as to any material fact' and (2) 'the moving party is entitled to judgment as a matter of law.'" Poteet v. White,
135 Sixth, the Spaffords contend that their rights under the Due Process Clause and rule 68(b) of the Utah Rules of Civil Procedure were violated when Granite was allowed to file a memorandum in opposition to the Spaffords' motion to disqualify Judge Medley.
1 36 To begin with, this case presents nothing remotely approaching a violation of the Due Process Clause. Cf. Caperton v. A.T. Massey Coal Co.,
137 Nor do we agree that Granite's memorandum in opposition to the Spaffords' motion for judicial disqualification created an appearance of impropriety requiring disqualification. "Obviously, actual bias need not be found to support disqualification. An appearance of bias or prejudice is sufficient for disqualification, but even disqualification because of appearance must have some basis in fact and be grounded on more than mere conjecture and speculation." Madsen v. Prudential Fed. Sav. & Loan Ass'n,
We are not convinced that the Utah Rules of Civil Procedure prohibit the non-moving party from filing papers in opposition to a motion for judicial disqualification. The governing rule makes no mention of a responsive memorandum one way or the other. Under rule 68(b)(1)(A) of the Utah Rules of Civil Procedure, a party "may file a motion to disqualify a judge. The motion shall be accompanied by a certificate that the motion is filed in good faith and shall be supported by an affidavit stating facts sufficient to show bias, prejudice or conflict of interest." Utah R. Civ. P. 68(b)(1)(A). A later subsection of the rule directs that "[the judge against whom the motion and affidavit are directed shall, without further hearing, enter an order granting the motion or certifying the motion and affidavit to a reviewing judge. The judge shall take no further action in the case until the motion is decided." Id. R. 68(b)(2).
1 40 We leave for another day the question of whether these rules prohibit a response to a motion for judicial disqualification. Assuming without deciding that they do, we conclude that the Spaffords' claim of an appearance of impropriety here has no basis in fact, and was grounded on nothing more than "mere conjecture and speculation." Madsen,
{41 Moreover, the Affidavit of Prejudice relies largely if not exclusively on adverse rulings of the trial judge: "In summary, the court denied each and every procedural request, motion, objection, and any other nuance, which would afford plaintiffs any advantage, let alone create a level playing field." "However, 'no deduction of bias and prejudice may be made from adverse rulings by a judge.'" In re Affidavit of Bias,
142 Finally, the Spaffords contend that various rulings of the trial court violated their rights under the state and federal constitutions. The Spaffords acknowledge that these claims of error are unpre-served and seek review under the plain error doctrine. To demonstrate plain error, a defendant must establish that "G) [aln error exists; (i) the error should have been obvious to the trial court; and (iii) the error is harmful, ie., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." State v. Dunn,
143 Here, the Spaffords' brief does not demonstrate or even contend that any ruling of the trial court violated settled appellate law. They cite Butler v. Sports Haven International,
€ 44 Affirmed.
45 WE CONCUR: STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN, Judges.
Notes
. Under Utah law, a "spouse's action for loss of consortium ... is derivative from the cause of action existing in behalf of the injured person[] and ... may not exist in cases where the injured person would not have a cause of action." Utah Code Ann. § 30-2-11(5)(a)-(b) (2007).
. Although not a member of the Utah Bar at the time of this litigation, Earl practiced law in Utah for more than forty years.
. We have somewhat reordered the Spaffords' claims for analytical clarity.
. We assume for purposes of this argument that the trial court did not strike these observations in the Spafford affidavit.
. Because the Spaffords offer no separate state constitutional analysis, we consider only their federal due process claim. See State v. Lafferty,
. The Spaffords rely on State v. Poteet,