Smith v. Volkswagen Southtowne , 2022 UT 29 ( 2022 )

2022 UT 29IN THE
SUPREME COURT OF THE STATE OF UTAH
LOIS SMITH,
Appellant & Cross Appellee,
v.
VOLKSWAGEN SOUTHTOWNE, INC.,
Appellee & Cross Appellant.
No. 20190382
Heard February 10, 2021
Filed June 30, 2022
On Direct Appeal
Third District, Salt Lake
The Honorable Barry G. Lawrence
No. 130908362
Attorneys:1
Michael A. Worel, Colin King, Ricky Shelton, Paul M. Simmons,
Salt Lake City, for appellant and cross appellee
Rodney R. Parker, Nathanael J. Mitchell, Salt Lake City,
for appellee and cross appellant
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE HAGEN became a member of the Court on May 18, 2022,
after oral argument in this matter, and accordingly did not
participate.
__________________________________________________________
1 Attorneys for amici curiae: S. Spencer Brown, Axel Trumbo,
Scarlet R. Smith, Salt Lake City, for Utah Defense Lawyers
Association; Tracy H. Fowler, Salt Lake City, Alan J. Lazarus,
San Francisco, CA, for Product Liability Advisory Council, Inc.

Justice Himonas sat on this case and voted prior to his
retirement on March 1, 2022.
SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Volkswagen SouthTowne (SouthTowne) sold Lois Smith
a vehicle that was subject to a safety recall because of a defective
fuel injection line. Shortly after buying the car, Smith drove it to
Washington State to visit family. During the drive, she began
smelling fumes and feeling sick. After seeing smoke coming from
under the hood, she had the car towed to a Volkswagen
dealership along the way. A mechanic found that the safety recall
had not been performed on Smith‘s vehicle, and he observed that
a cracked fuel line had sprayed diesel fuel throughout the engine
compartment. Smith was later diagnosed with carbon monoxide
poisoning. She filed negligence and strict liability claims against
SouthTowne and other Volkswagen entities.
¶2 Smith prevailed at trial and the jury awarded her
$2,700,000 in damages. SouthTowne then moved for judgment as
a matter of law and a new trial. The district court granted
SouthTowne‘s motions because it concluded Smith had failed to
prove causation.
¶3 Smith now appeals the district court‘s reversal of the jury
verdict in her favor. And although it prevailed post-trial,
SouthTowne cross appeals, asserting that the district court
incorrectly rejected some of the arguments it advanced in its post-
trial motions.2 It also challenges some of the district court‘s
__________________________________________________________
2 As the prevailing party, it is not clear that all the arguments
SouthTowne advances in its cross appeal should have been
brought in that manner. Generally, if an appellee wishes to argue
that the district court‘s ruling should be upheld for reasons other
than those relied upon by the district court, but the appellee is not
seeking to challenge the results of the judgment or to enlarge its
rights or lessen the rights of its opponent in some way, then an
appellee should present such arguments as alternative grounds
for affirmance in its response brief rather than in a separate cross
appeal. See State v. South, 924 P.2d 354, 355–57 (Utah 1996)
(adopting the ―Langnes doctrine‖ and holding that a cross appeal
is necessary only where there exists a challenge to the tangible
result of a judgment or decision); Helf v. Chevron U.S.A. Inc.,
2015 UT 81, ¶¶ 61–63, 361 P.3d 63 (finding a cross appeal
inappropriate where the appellee sought an affirmance of the
(continued . . .)
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evidentiary rulings, in the event that there is a new trial.
¶4 We reverse in part and affirm in part. We disagree with
the district court‘s conclusion that Smith failed to prove the
defective fuel injection line caused her to suffer carbon monoxide
poisoning. But we affirm the district court‘s rulings rejecting the
arguments SouthTowne attempts to revive in its cross appeal.
Accordingly, we conclude that SouthTowne is not entitled to
judgment as a matter of law or a new trial, and we order the jury‘s
verdict to be reinstated.
BACKGROUND3
¶5 In October 2011, Volkswagen‘s corporate office sent a
―Mandatory Stop Sale Order‖ and ―Safety Recall‖ to all of its
dealerships, including SouthTowne. In the order, Volkswagen
Corporate warned SouthTowne that certain Volkswagen cars had
a defective fuel-injection line that could crack during operation
and spray high-pressured fuel on the engine. Volkswagen ordered
SouthTowne, ―effective immediately,‖ to quarantine the defective
cars ―in a secure area where [they could not] be made available
for sale, lease, trade, or demo use until the recall repair ha[d] been
performed.‖
¶6 But one month later, SouthTowne sold one of the
defective cars to Lois Smith. In December 2011, a few weeks after
purchasing the defective Volkswagen, Smith drove the car from
district court‘s judgment on alternative grounds, and did not seek
to enlarge its rights or lessen the rights of its opponent under the
judgment).
Smith has not challenged any of SouthTowne‘s cross-appeal
claims as procedurally improper. So we do not analyze this matter
further. We make these observations only to clarify that when a
party prevails below, it should file a cross appeal only where it
seeks to challenge the tangible result of a judgment or decision, see
South, 924 P.2d at 355–57, or seeks to enlarge its rights or lessen
the rights of its opponent under the judgment, see Helf,
2015 UT 81, ¶¶ 61–63.
3 ―On appeal from a trial court‘s entry of a judgment [as a
matter of law], we view the evidence and all reasonable inferences
therefrom in a light most favorable to the party who prevailed at
trial.‖ Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1061–62
(Utah 1996) (citations omitted). We recite the facts accordingly.
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
Salt Lake City to Washington State to visit family. At some point
during this drive, Smith began smelling what she described as ―a
gassy smell‖ and an ―engine smell.‖ Smith was initially
unconcerned, because her stepfather had explained upon
purchase of the vehicle that cars with diesel engines always ―smell
bad‖ and had warned her that any diesel-related odor might take
some time to get used to.
¶7 Soon, however, Smith began to feel ―extremely sick.‖ She
developed a headache ―like [she]‘d never felt before,‖ she ―felt
like [she] was on fire,‖ and she was ―sick to [her] stomach.‖ Smith
also became ―seriously sleepy.‖
¶8 After experiencing these symptoms, Smith pulled off the
highway for a break. She noticed ―a big cloud of smoke‖ coming
from the engine. In reaction to the smoke, Smith had the vehicle
towed to the nearest Volkswagen dealership.
¶9 At the dealership, a Volkswagen mechanic named
Guadalupe Mejia discovered a defective fuel line. Mejia also
observed that fuel had sprayed throughout the engine
compartment. He observed somewhere ―between . . . a pint and a
quart‖ of fuel on various parts of the engine, including where the
engine houses the exhaust manifold and turbocharger, and
another ―foot in diameter‖ of diesel fuel pooled underneath the
car.
¶10 Smith stayed in a motel for a few days as she waited for
the dealership to repair her vehicle. During this time, she
continued to feel symptoms similar to those she had experienced
while driving her vehicle. She ―just wanted to [] sleep‖ and
―didn‘t care about eat[ing].‖ Apart from attending church, during
which she fell asleep more than once, Smith could recall getting
up only once while awaiting the repairs.
¶11 Because her symptoms persisted, Smith eventually went
to an emergency room after arriving in Washington. Although the
E.R. doctor could not detect any lingering or concerning traces of
carbon monoxide in Smith‘s blood, the doctor presumed, based on
her symptoms and description of events, that Smith had suffered
carbon monoxide poisoning. The doctor also treated her for an
upper respiratory infection.
¶12 After Smith returned to Utah, her friends and co-workers
noticed significant changes in her behavior. Smith‘s employer
observed that she was having unprecedented problems with her
speech, memory, job performance, writing, and ability to connect
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with others. According to one supervisor, it was ―like somebody
switched the switch and turned off the light‖ inside her.
¶13 Shortly after her return from Washington, Smith visited
the clinic of her primary-care physician. The clinic noted that
Smith was having ―difficulty talking‖ and that her ―words [were]
jumbled and slurred.‖ Clinic notes also indicated that Smith was
―having a difficult time concentrating,‖ had a ―headache on the
left side of her head,‖ and felt tired. And another physician noted
that Smith was having ―problems with word-finding and speech.‖
¶14 Smith visited a specialist in October 2012, just under a
year after her trip. This specialist, neurologist Dr. John Foley,
noted a ―history of presumed carbon monoxide intoxication‖ from
the year before. And based on Smith‘s reported history, he
performed a neurological exam. Smith failed two of the tests. Dr.
Foley‘s findings noted ―[p]robable carbon monoxide intoxication
with subsequent residual neurological dysfunction,‖ as well as
―ongoing affective disorder, cognitive dysfunction, fatigue and
decreased balance.‖ He recommended ―[f]urther neurological
work-up, including [an] MRI of the brain.‖
¶15 One year after this first consultation, in November 2013,
Smith visited another specialist in carbon monoxide poisoning,
Dr. William Orrison. After ordering an MRI and reviewing the
scans of Smith‘s brain, Dr. Orrison noted that Smith had suffered
brain damage ―consistent with . . . the clinical history of carbon-
monoxide exposure.‖
Pre-Trial Litigation
¶16 Due to her injuries, Smith filed negligence and strict
liability claims against Volkswagen AG, Volkswagen Group of
America, Volkswagen de Mexico, and Volkswagen SouthTowne.4
During the litigation, Smith retained several experts.
¶17 One of these experts was Peter Leiss. Leiss was to opine
on two issues: (1) whether carbon monoxide could be generated
by the alleged diesel fuel leak; and (2) if so, whether there was a
passageway for the carbon monoxide to travel from the engine
compartment into the passenger compartment. Leiss was a
mechanical engineer with twenty years of experience in the
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4 Volkswagen AG, Volkswagen Group of America, and
Volkswagen de Mexico were voluntarily dismissed from the case
during trial.
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
automotive industry, including with diesel engine vehicles and
diesel fuel systems. He had no independent training in chemical
engineering.
¶18 To form an opinion regarding whether carbon monoxide
could have been produced by the diesel fuel leak in Smith‘s car,
Leiss relied on a test conducted by a lab technician he worked
with at Robson Forensics—a firm that employs about ―a hundred
full-time experts.‖ The technician dropped two milliliters of diesel
fuel onto a hot metal plate inside an enclosed, upside-down glass
aquarium, while measuring the amount of carbon monoxide
produced in parts per million (ppm) as the temperature of the hot
plate rose. When the drops of diesel fuel hit the metal surface at a
heat of 344 degrees Fahrenheit, the technician detected 295 ppm of
carbon monoxide.
¶19 Smith also retained Dr. Lindell Weaver, a specialist in
internal medicine, pulmonary critical care, and hyperbaric
medicine with expertise in carbon monoxide poisoning. Dr.
Weaver was to provide medical testimony about the extent of
Smith‘s injuries and to opine on the cause of those injuries. Dr.
Weaver based his conclusions on several factors, including his
own experience in the field, his knowledge of the events
surrounding Smith‘s alleged carbon-monoxide poisoning, his own
interview with and physical examination of Smith, his evaluation
of her brain scans, and the report created by Dr. Orrison, who
passed away before trial and was therefore unavailable to testify.
¶20 Before trial, SouthTowne filed various motions in limine
seeking to limit or exclude testimony from Smith‘s experts,
including Leiss and Dr. Weaver.
¶21 With regard to Leiss, SouthTowne argued that he should
not be permitted to opine that carbon monoxide was created in
Smith‘s engine compartment based on the results of the lab test
because the test was conducted in an enclosed glass aquarium
that lacked airflow, and therefore did not replicate the conditions
under Smith‘s hood on the day in question. SouthTowne also
argued that Leiss should not be allowed to opine on the
concentration of carbon monoxide in Smith‘s passenger
compartment. And it argued that Leiss should not be allowed to
opine that the leaking fuel caused Smith to suffer carbon
monoxide poisoning, because Leiss was not a medical doctor. The
district court denied the motion without prejudice, stating it
would ―assess [Leiss‘s] opinions at trial‖ and noting that the court
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had a concern about whether Leiss could ―quantify the amount of
[carbon monoxide] in the passenger compartment.‖
¶22 With regard to Dr. Weaver, SouthTowne argued in
relevant part that Dr. Weaver‘s opinion that Smith suffered
carbon monoxide poisoning during her drive should be excluded
because he ―appear[ed] to base‖ that opinion on an unreliable
differential diagnosis.5 The district court also denied this motion
without prejudice, but it noted that it was concerned about Dr.
Weaver‘s ―ability to identify the source of . . . Smith‘s alleged
[carbon monoxide] poisoning.‖
Trial
¶23 The case proceeded to trial. During her case in chief,
Smith called Leiss as an expert witness. Smith offered the results
of the lab test into evidence, and they were admitted without
objection. Leiss explained that the test had measured 295 ppm of
carbon monoxide when drops of diesel fuel hit the metal surface
at a heat of 344 degrees Fahrenheit. He then testified that parts of
the vehicle‘s engine could reach temperatures beyond 344 degrees
Fahrenheit. Leiss had read the deposition of Volkswagen
mechanic Mejia, who saw between a pint and a quart of diesel fuel
pooled on Smith‘s engine, including on the turbocharger and
exhaust manifold. And he testified that during driving conditions
like Smith‘s drive to Washington, the turbocharger and exhaust
manifold can reach between 500 and 700 degrees Fahrenheit. He
also testified that these parts of the engine receive less air flow
due to their location. On this basis, Leiss opined that the diesel
fuel leaking from the defective fuel line could have produced
carbon monoxide when it came in contact with these extremely
hot surfaces. And he further opined that carbon monoxide created
in the engine compartment could travel to the passenger
compartment.
¶24 Smith also called Dr. Weaver as an expert witness.
Dr. Weaver testified based on objective medical tests, such as an
__________________________________________________________
5 ―‗Differential diagnosis‘ refers to the process by which a
physician ‗rule[s] in‘ all scientifically plausible causes of the
plaintiff‘s injury . . . [and] then ‗rules out‘ the least plausible
causes of injury [,] until the most likely cause remains.‖ Hollander
v. Sandoz Pharms. Corp., 289 F.3d 1193, 1209 (10th Cir. 2002) (first
alteration in original) (citation omitted) (internal quotation marks
omitted).
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
MRI scan of Smith‘s brain, that Smith had in fact suffered carbon
monoxide poisoning.6 And after eliminating other potential
causes, Dr. Weaver opined that Smith had been poisoned by
carbon monoxide while driving her Volkswagen from Utah to
Washington in December 2011.
¶25 In response to the expert testimony put on by Smith,
SouthTowne introduced several experts at trial during its case in
chief. This included two chemical engineers: Dr. Geoffrey Silcox
and John Schumacher. Like Leiss, Dr. Silcox and Schumacher had
conducted experiments prior to trial to determine the temperature
at which diesel fuel would produce carbon monoxide in the
absence of combustion. But while Leiss‘s test had been conducted
in an enclosed space, the tests conducted by Dr. Silcox and
Schumacher were intended to replicate the airflow encountered
by the Volkswagen engine during Smith‘s drive to Washington.
¶26 At trial, Dr. Silcox testified that carbon monoxide can
autogenerate at 469 degrees Fahrenheit in an enclosed space and
at 869 degrees Fahrenheit on a flat surface. He also testified about
the results of his test, which had introduced airflow into the
equation. Dr. Silcox‘s test involved dropping diesel fuel onto a
metal surface calibrated to various temperatures inside a five-
gallon plastic bucket with a carbon-monoxide meter. Outside air
was piped through the bucket with an air compressor. Dr. Silcox
did not detect any carbon monoxide, but he admitted he had not
tested temperatures over 480 degrees Fahrenheit because his
bucket had started to melt. During cross-examination, Silcox
conceded that ―it‘s possible‖ for diesel fuel leaking on an engine
to produce carbon monoxide.
¶27 Schumacher testified that he agreed with Dr. Silcox‘s
testimony about the temperatures at which diesel fuel can
produce carbon monoxide when heated in an enclosed space or
__________________________________________________________
6 We use ―objective‖ here in the sense of ―objective medical
evidence‖ as opposed to ―subjective medical evidence.‖ For
example, the Social Security Administration considers ―objective
medical evidence‖ to be ―‗evidence obtained from the application
of medically acceptable clinical and laboratory diagnostic
techniques, such as evidence of reduced joint motion, muscle
spasm, sensory deficit or motor disruption.‘‖ Consideration of
objective medical evidence, 3 SOC. SEC. LAW & PRAC. § 36:25
(referencing 20 C.F.R. § 404.1529(c)(2)).
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on a flat surface. He also testified about the results of his test,
which, like Dr. Silcox‘s, attempted to account for the influence of
airflow. Schumacher positioned a copper tube above a metal
surface, which was set to various temperatures, to capture vapor
produced when he dropped diesel fuel onto the surface. The
distance between the copper tube and the metal surface was
meant to replicate airflow into the car‘s engine compartment. A
carbon monoxide meter at the top of the cylinder detected carbon
monoxide when the surface was calibrated to 657 degrees
Fahrenheit.
¶28 SouthTowne also offered the expert testimony of Detlef
Kuehn, a mechanical engineer who specialized in automotive
engineering, and who worked at Volkswagen AG as a test
engineer in the vehicle safety department. Before trial, Kuehn had
done field testing to measure engine temperatures of a similar
model Volkswagen under various driving conditions, including
five minutes of ―full blast‖ driving. After the ―full blast‖ driving,
he found that the hottest engine temperature was on the
turbocharger, which reached 653 degrees Fahrenheit.
¶29 Following an eight-day trial, the jury returned a verdict
in Smith‘s favor on both her negligence and strict liability claims.
The jury awarded Smith a total of $2,700,000 in non-economic
damages. SouthTowne subsequently filed three motions under the
Utah Rules of Civil Procedure seeking to overturn the jury‘s
verdict: (1) a rule 50 motion for judgment notwithstanding the
verdict,7 (2) a rule 59 motion for a new trial, and (3) a motion for
relief from judgment under rule 60(b).
Rulings on SouthTowne’s Post-Trial Motions
¶30 After holding oral argument, the district court granted
SouthTowne‘s motion for judgment as a matter of law because it
concluded Smith had provided legally insufficient evidence on the
element of causation. In its ruling, the district court rejected an
__________________________________________________________
7 Rule 50 was amended in 2016 to change the terms ―directed
verdict‖ and ―judgment notwithstanding the verdict‖ to
―judgment as a matter of law.‖ Arnold v. Grigsby, 2018 UT 14, ¶ 10
n.2, 417 P.3d 606 (discussing UTAH. R. CIV. P. 50). This change had
no substantive effect on the existing standard. Id. We use the
updated term ―judgment as a matter of law,‖ but we employ
―directed verdict‖ and ―judgment notwithstanding the verdict‖
when quoting other sources that use those older terms.
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
argument advanced by SouthTowne that Smith had failed to
sufficiently establish the applicable standard of care.
¶31 The court also conditionally granted SouthTowne‘s
motion for a new trial because it determined that two of Smith‘s
experts, Leiss and Dr. Weaver, provided testimony that it should
have excluded.8 Specifically, the court concluded that the
laboratory test relied upon by Leiss was unreliable because it was
performed by a lab technician that the court believed to be
unknown, and Leiss was not an expert in chemistry and therefore
could not assess the reliability of the test performed by the
unidentified technician. The court ruled that it would be unfair for
the verdict to stand where Leiss‘s testimony relied upon an
―obviously unreliable test,‖ and ―where [the test] was the only
evidence supporting the creation of [carbon monoxide].‖
¶32 The court also concluded that it should not have
admitted Dr. Weaver‘s opinion testimony that Smith was
poisoned by carbon monoxide during her drive to Washington.
The court believed Dr. Weaver had failed to consider in his
differential diagnosis the fact that Smith had lived in her car for a
period of time, which the court deemed to be another possible
source of carbon monoxide poisoning.
¶33 In reaching its rulings regarding the testimony of Leiss
and Dr. Weaver, the court rejected a number of arguments
advanced by SouthTowne in support of its new trial motion.
Relevant here, the court rejected SouthTowne‘s arguments that
(1) Smith improperly relied on the deceased Dr. Orrison‘s MRI
report and associated findings, and (2) Dr. Weaver‘s testimony
suffered from reliability defects that rendered his differential
diagnosis inadmissible.
¶34 With regard to SouthTowne‘s rule 60(b) motion, Smith
argued that the court should deny it as untimely because
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8 After granting SouthTowne‘s motion for judgment as a
matter of law, the district court conditionally ruled on
SouthTowne‘s new trial motion in accordance with rule 50(c)(1) of
the Utah Rules of Civil Procedure, which states
If the court grants a renewed motion for judgment
as a matter of law, it must also conditionally rule on
any motion for a new trial by determining whether a
new trial should be granted if the judgment is later
vacated or reversed.
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SouthTowne had filed the motion sixty-eight days after judgment
was entered in the case—forty days later than required under rule
59(b). The court rejected Smith‘s argument and excused the late
filing. But it declined to rule on the 60(b) motion at that time,
concluding that an evidentiary hearing was necessary to resolve
the motion.
¶35 Smith appeals all three orders. And although it prevailed
in the district court, SouthTowne files a cross appeal, re-asserting
arguments that the district court rejected. Specifically,
SouthTowne contends that (1) the court should have granted its
motion for judgment as a matter of law on the ground that Smith
did not provide expert testimony on the standard of care
applicable to a car dealership facing a recall campaign, and that
(2) the district court should have granted its motion for a new trial
on the grounds that (a) reliability defects in Dr. Weaver‘s
differential diagnosis rendered his causation opinions
inadmissible, and (b) presentation of Dr. Orrison‘s findings and
associated imaging should not have been disclosed to the jury
during testimony or otherwise.9 For the same reasons,
SouthTowne also requests that in the event of a new trial, we
instruct the district court to exclude Dr. Weaver‘s opinions in their
entirety and exclude evidence of Dr. Orrison‘s scans and report.
¶36 We exercise jurisdiction under Utah Code section
78A-3-102(3)(j).
STANDARDS OF REVIEW
¶37 This case comes to us on direct appeal from the district
__________________________________________________________
9 We also received amicus briefing from the Product Liability
Advisory Council, Inc. (PLAC), a non-profit professional
association of corporate members representing American and
international products manufacturers, and the Utah Defense
Lawyers Association (UDLA). PLAC requests clarification on
admissibility standards related to expert testimony in product
liability and toxic tort cases, including the admissibility of expert
medical causation opinions and the dose-response evidentiary
foundation needed to prove medical causation in toxic tort cases.
UDLA requests clarification of the proper application of
admissibility determinations under Utah Rule of Evidence 702,
noting confusion over advisory language in the 2007 amendment.
We address these concerns below. See infra ¶¶ 80 n.16; 113 n.19;
131 n.22.
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
court. Because of the variety of issues raised by the parties, we
employ multiple standards of review in this case.
¶38 Smith appeals three of the district court‘s post-trial
orders. First, she challenges the district court‘s order granting
SouthTowne‘s motion for judgment as a matter of law. We review
rulings on such motions for correctness, see ASC Utah, Inc. v. Wolf
Mountain Resorts, L.C., 2013 UT 24, ¶ 18, 309 P.3d 201, and in
doing so ―accept as true all testimony and reasonable inferences‖
that support the jury‘s verdict. Gold Standard, Inc. v. Getty Oil Co.,
915 P.2d 1060, 1066 (Utah 1996).
¶39 In its cross appeal of the district court‘s ruling on its
motion for judgment as a matter of law, SouthTowne contends the
district court erred in rejecting its argument that Smith‘s
negligence claim should not have gone to the jury because she did
not present expert testimony on the standard of care applicable to
an auto dealer implementing a manufacturer‘s recall pursuant to
federal regulations. Whether expert testimony is required to
establish the applicable standard of care in a particular case
presents a question of law, which we review for correctness. See
Grynberg v. Questar Pipeline Co., 2003 UT 8, ¶ 20, 70 P.3d 1(explaining that questions of law are reviewed for correctness).
¶40 Smith next argues that the district court erred in
conditionally granting SouthTowne a new trial based on the
court‘s conclusion that it had erroneously admitted certain expert
testimony. ―We apply an abuse of discretion standard in
reviewing a [district court‘s] decision to grant or deny a new trial
. . . .‖ USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 30, 372 P.3d 629(citation omitted).10 In doing so, ―[w]e review the legal standards
__________________________________________________________
10 In the past, we established different standards of review
depending on whether the trial court denied or granted a motion
for a new trial based on alleged insufficiency of evidence under
Utah Rule of Civil Procedure 59(a)(6). See Nelson v. Trujillo,
657 P.2d 730, 731–32 (Utah 1982). In cases where the lower court
denied a motion for a new trial, we affirmed the decision on
appeal ―if there was an evidentiary basis for the jury‘s decision‖
and reversed ―only if the evidence to support the verdict was
completely lacking or was so slight and unconvincing as to make
the verdict plainly unreasonable and unjust.‖ Id. at 732 (citations
omitted) (internal quotation marks omitted). Where the district
court granted a motion for a new trial, however, we sustained the
(continued . . .)
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applied by the [district] court . . . for correctness and the [district]
court‘s factual findings for clear error.‖ State v. Bess, 2019 UT 70,
¶ 17, 473 P.3d 157 (alterations in original) (citation omitted)
(internal quotation marks omitted).
¶41 On cross appeal, SouthTowne contends that the district
court erroneously admitted other expert testimony. ―Two
different standards of review apply to . . . claims regarding the
admissibility of evidence.‖11 Northgate Vill. Dev., LC v. City of
Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117 (citation omitted). ―The first
standard of review, correctness, applies to the legal questions
underlying the admissibility of evidence.‖ Id. (citation omitted)
(internal quotation marks omitted). ―The second standard of
review, abuse of discretion, applies to the [district] court‘s
decision to admit or exclude evidence . . . and to . . .
determination[s] regarding the admissibility of expert
testimony.‖ Id. (first and second alterations in original) (citation
omitted) (internal quotation marks omitted).
¶42 Finally, Smith challenges the timeliness of SouthTowne‘s
rule 60(b) motion and argues the district court should have denied
the motion on that basis. While ―[w]e grant broad discretion to a
[district] court[‘s] rule 60(b) rulings,‖ and ―accordingly review a
district court‘s denial [or grant] of a 60(b) motion under an abuse
of discretion standard,‖ such ―discretion is not unlimited.‖
Archuleta v. Galetka, 2011 UT 73, ¶ 152, 267 P.3d 232 (third
alteration in original) (citations omitted) (internal quotation marks
omitted). ―A decision premised on flawed legal conclusions, for
instance, constitutes an abuse of discretion.‖ Lund v. Brown,
decision on appeal ―if the record contain[ed] substantial
competent evidence which would support a verdict for the
[moving party].‖ Id. (second alteration in original) (citations
omitted) (internal quotation marks omitted).
Neither party invoked Nelson as a standard of review in this
case, but we take the time here to note that, in the ensuing years,
Nelson has been overtaken by our streamlining of our standards of
review. Today, the standard of review for a district court‘s denial
or grant of a motion for a new trial is abuse of discretion.
11Our evidentiary-related standards of review also apply to
SouthTowne‘s cross appeals regarding the testimony of Dr.
Weaver and Smith‘s reliance at trial on the reports of the deceased
Dr. Orrison.
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
2000 UT 75, ¶ 9, 11 P.3d 277. And while ―[w]e review a district
court‘s findings of fact under a clear error standard,‖ we review
―conclusions of law for correctness, affording the [district] court
no deference.‖ Menzies v. Galetka, 2006 UT 81, ¶ 55, 150 P.3d 480.
ANALYSIS
¶43 We first address Smith‘s challenge to the district court‘s
order granting judgment as a matter of law to SouthTowne,
notwithstanding the jury verdict in her favor. Then we address
SouthTowne‘s related cross appeal.
I. ORDER GRANTING JUDGMENT AS A MATTER OF LAW
¶44 The district court granted judgment as a matter of law to
SouthTowne because the court concluded that the evidence
adduced at trial was legally insufficient to prove causation. Smith
argues that the court erred in making this determination because
it failed to consider all the causation-related evidence presented to
the jury. SouthTowne defends the court‘s determination and,
alternatively, argues that the district court should have granted its
motion on the ground that Smith failed to establish the standard
of care applicable to her negligence claim.
¶45 After considering all the evidence presented to the jury,
we conclude that Smith provided legally sufficient evidence of
both causation and the applicable standard of care. Accordingly,
we reverse the district court‘s grant of judgment as a matter of law
to SouthTowne on the basis of causation, but we affirm the court‘s
rejection of SouthTowne‘s standard of care argument as an
alternative reason to grant judgment in its favor on Smith‘s
negligence claim.
¶46 Rule 50 permits a court to grant judgment as a matter of
law only where ―the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party‖ on
a claim or defense. UTAH R. CIV. P. 50(a)(1). In addressing a rule 50
motion, ―a trial court must look at the evidence and all reasonable
inferences in a light most favorable to the nonmoving party.‖
Franklin v. Stevenson, 1999 UT 61, ¶ 6, 987 P.2d 22. And because
this type of motion ―does not raise questions relating to the
competency or admissibility of evidence,‖ courts must take the
evidence ―as it existed at the close of the trial, and evidence
admitted over objection cannot be excluded nor can evidence be
included which was improperly rejected.‖ Id. ¶ 7 (citation
omitted). In other words, ―[w]hether competent or incompetent,
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all evidence submitted to the jury must be considered by the court.‖ Id.(citation omitted).
A. Causation
¶47 We first address the district court‘s conclusion that Smith
failed to present legally sufficient evidence to prove the element
of causation. Smith had to prove causation as an element of both
her negligence and strict liability claims.12
¶48 In ruling on SouthTowne‘s motion for judgment as a
matter of law, the district court concluded that Smith had to prove
four facts by a preponderance of the evidence in order to establish
causation: that (1) carbon monoxide was actually produced under
the hood of her car during the incident in question; (2) once the
carbon monoxide was created, it had a pathway into the
passenger compartment of Smith‘s car; (3) once it entered the
passenger compartment, the carbon monoxide was sufficiently
concentrated to cause Smith harm; and (4) the carbon monoxide
actually caused Smith‘s injury.
¶49 The court found that Smith had provided sufficient
evidence of the second and fourth facts it identified. But it
__________________________________________________________
12 To prove negligence, a plaintiff must show (1) a duty
existed; (2) breach of that duty; (3) causation, which encompasses
both cause-in-fact and proximate cause; and (4) damages. See
Gerbich v. Numed Inc., 1999 UT 37, ¶ 14, 977 P.2d 1205; Raab v. Utah
Ry. Co., 2009 UT 61, ¶¶ 22–23, 221 P.3d 219. In negligence actions,
we employ a ―substantial factor‖ test to determine causation, see,
e.g., Devine v. Cook, 279 P.2d 1073, 1080 (Utah 1955) (applying the
substantial factor test in a negligence case), which rests on the
―principle that causation exists when the defendant‘s conduct is
an important or significant contributor to the plaintiff‘s injuries,‖
Gardner v. Gardner, 2019 UT 61, ¶ 23, 452 P.3d 1134 (quoting
Substantial-cause Test, BLACK‘S LAW DICTIONARY, (11th ed. 2019)).
In a strict product liability suit, a plaintiff must prove three
elements: ―(1) that the product was unreasonably dangerous due
to a defect or defective condition, (2) that the defect existed at the
time the product was sold, and (3) that the defective condition
was a cause of the plaintiff‘s injuries.‖ Blank v. Garff Enters. Inc.,
2021 UT App 6, ¶ 26 n.6, 482 P.3d 258 (citation omitted); see also
UTAH CODE § 78B-6-703. Liability in these cases rests on the
defective product itself, and not on any underlying negligence.
Gudmundson v. Del Ozone, 2010 UT 33, ¶ 45, 232 P.3d 1059.
15
SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
concluded that no evidence was adduced at trial showing that it
was more probable than not that carbon monoxide was actually
produced under the hood of Smith‘s car during her drive to
Washington, or that the carbon monoxide was present in her
passenger compartment in a sufficient quantity to have caused her
injuries.
¶50 With regard to the specific facts identified by the district
court as critical to determining causation, it is important to
remember that a plaintiff‘s burden of proof relates to the required
elements of each claim, not to individual facts. See, e.g.,
Orvis v. Johnson, 2008 UT 2, ¶ 10, 177 P.3d 600 (―Where the moving
party would bear the burden of proof at trial, the movant must
establish each element of his claim in order to show that he is
entitled to judgment as a matter of law.‖). To be sure, certain facts
are ―material‖ in that they are ―significant or essential to the issue
. . . at hand‖ and may ―make[] a difference in the result to be
reached in a given case.‖ Fact, BLACK‘S LAW DICTIONARY (11th ed.
2019). The role that material facts play in a motion for judgment as
a matter of law is the same as in a motion for summary judgment:
the moving party must show there were no genuine issues of
material fact for the factfinder to weigh and that they are entitled
to judgment as a matter of law. See Nay v. Gen. Motors Corp., GMC
Truck Div., 850 P.2d 1260, 1264 (Utah 1993) (explaining that ―both
summary judgment and directed verdicts require that no
questions of material fact exist and that the moving party be
entitled to judgment as a matter of law‖).
¶51 A ―finding of causation cannot be predicated on mere
speculation or conjecture.‖ Lindsay v. Gibbons & Reed, 497 P.2d 28,
31 (Utah 1972). For this reason, a plaintiff fails to provide legally
sufficient evidence of causation ―unless there is evidence from
which the inference may reasonably be drawn that the injury
suffered was caused by the negligent act of the defendant.‖ Id. In
other words, evidence of causation is insufficient if it leaves jurors
to ―speculate as to possibilities.‖ Id. Instead, the evidence must
allow ―reasonable minds‖ to ―make justifiable inferences‖ based
on all the evidence—including direct, circumstantial, and expert
evidence—that a defendant‘s negligence (in a negligence claim) or
the defective condition (in a strict liability claim) caused the harm.
Id.¶52 We first address the district court‘s conclusion that Smith
failed to prove it was more likely than not that that the leaking
diesel fuel produced carbon monoxide when it came in contact
16
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with hot spots in the Volkswagen‘s engine compartment. The
court reasoned that this was ―a mixed issue of chemistry and
automotive engineering.‖ And it concluded that Smith ―failed to
call an expert (properly trained in the relevant discipline) to
support that diesel fuel more likely than not was converted to
[carbon monoxide] under the conditions that were present under
the hood of her vehicle.‖ Rather, Leiss could testify only that it
was possible for this to have happened.
¶53 As a threshold matter, we note that Smith did not have
the burden to prove this particular fact by a preponderance of the
evidence. See supra ¶ 50. But this fact was certainly material to
proving causation.
¶54 And we agree with the district court that expert
testimony was necessary on this point, because the question of
whether diesel fuel leaking onto the Volkswagen‘s engine
compartment could produce carbon monoxide required expertise
beyond the knowledge of a layperson. And where jurors cannot,
without unjustifiable speculation, resolve a dispute based on the
facts of the case and their own experiences, expert testimony is
required. See USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 118,
n.217, 372 P.3d 629 (explaining that ―expert testimony is generally
required to establish complex questions of causation‖); but see
Sheppard v. Geneva Rock, 2021 UT 31, ¶ 31, 493 P.3d 632 (noting,
conversely, that expert testimony is ―not necessarily required‖ to
prove causation ―when the causal connection is readily apparent
using only ‗common knowledge‘‖ (citation omitted) (internal
quotation marks omitted)).
¶55 However, the need for expert testimony in a case neither
diminishes the importance of non-expert evidence nor minimizes
the jury‘s role as the factfinder. Rather, expert testimony is meant
to supplement the jury‘s knowledge so that the jury may decide
the case without resorting to ―mere speculation or conjecture.‖
Lindsay, 497 P.2d at 31.
¶56 Expert testimony that fails to take the case out of the
realm of speculation or conjecture is insufficient on its own to
sustain a plaintiff‘s burden of proof at trial. See, e.g., Fox v. Brigham
Young Univ., 2007 UT App 406, ¶ 23, 176 P.3d 446 (holding that
expert testimony was needed ―to prevent the fact-finder from
resorting to speculation‖ where the medical factors at issue in the
case were ―sufficiently complicated to be beyond the ordinary
senses and common experience of a layperson‖).
17
SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
¶57 But such testimony may nevertheless provide a sufficient
basis for a reasonable inference in combination with other
evidence in the case. See, e.g., Okla. Nat. Gas Co. v. Kelly,
153 P.2d 1010, 1013 (Okla. 1944) (holding that expert testimony
that an accident could have caused curvature of the spine,
combined with evidence that no curvature of the spine existed
prior to—but manifested shortly after—the accident and evidence
that ―reasonably tended to exclude every other possible cause,‖
was sufficient); Ketcham v. Thomas, 283 S.W.2d 642, 649–50 (Mo.
1955) (stating that collision was a ―possible‖ cause of the
plaintiff‘s constant menstrual bleeding, combined with evidence
―that immediately after the accident her condition changed to
constant bleeding which could not be controlled, and that this
constant bleeding was not common and was not a symptom . . .
before the collision,‖ was sufficient to survive summary judgment
on whether ―the accident was the cause of the constant bleeding‖);
Ideal Food Prods. Co. v. Rupe, 261 P.2d 992, 993–94 (Ariz. 1953)
(explaining that evidence was sufficient to support damages
award where the plaintiff put forward expert testimony that her
injury, which was diagnosed after the fall at issue, was ―caused by
a fall or some injury;‖ there was ―no evidence of a prior trauma or
injury that could have been the cause;‖ and the plaintiff testified
―to extreme pain after the accident and that prior to this fall she
had never experienced any pain in and about her left hip‖);
Rodrigues v. Georgia–Pacific Corp., 661 S.E.2d 141, 143–44 (Ga. Ct.
App. 2008) (holding that expert testimony ―unequivocally stated‖
that chlorine substantially contributed to the plaintiff‘s
pneumonia but noting that ―even if the physician‘s testimony here
were expressed only in terms of the chlorine being a ‗possible‘
cause of [the plaintiff‘s] injuries, other nonexpert evidence . . .
supplemented that testimony . . . [and the plaintiff‘s] testi[mony]
that although he was in apparent good health, he immediately
became ill upon his exposure to the chlorine, which continuously
worsened into the pneumonia he suffered when he presented at
the emergency room‖ was sufficient to survive summary
judgment).
¶58 Such is the case here. Smith identifies several sets of
evidence that, taken together, permitted the jury to make a non-
speculative finding that the leaking diesel fuel produced carbon
monoxide in Smith‘s engine compartment: (1) the expert
testimony of Leiss; (2) the combined testimony of Mejia, the
mechanic who worked on Smith‘s vehicle, Chemical Engineer
Schumacher, and Mechanical Engineer Kuehn, (3) Chemical
18
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Engineer Silcox‘s concession, when confronted with his deposition
testimony at trial, that ―it‘s possible‖ for fuel leaking on an engine
to produce carbon monoxide; and (4) Dr. Weaver‘s differential
diagnosis that Smith suffered carbon monoxide poisoning on her
trip to Washington. Smith also points to her own first-hand
testimony about her drive to Washington and the symptoms she
suffered during and after the drive, and the testimony of other
fact witnesses who noticed a marked difference in Smith before
and after her trip to Washington.
¶59 The district court found that the expert testimony of Leiss
established only that it was possible that carbon monoxide could
be created in Smith‘s engine compartment. Smith argues that
some of Leiss‘s testimony was more conclusive than this, but we
agree with the district court‘s view of the evidence as it relates to
Leiss‘s testimony here. Based on a lab test, which monitored the
production of carbon monoxide in an enclosed space, Leiss
testified that carbon monoxide can be created when diesel fuel
hits a surface heated to 344 degrees Fahrenheit. And he testified
that parts of the engine—the turbocharger and the exhaust
manifold—could reach between 500 and 700 degrees Fahrenheit,
and that the turbocharger was in an area of the engine
compartment that would not receive a lot of air flow. But because
the laboratory test did not replicate the conditions of a vehicle
traveling at highway speeds, the court concluded this evidence
established only that it was ―possible‖ carbon monoxide was
produced in Smith‘s engine compartment during her drive, but
not that it was ―actually created.‖ And the court concluded this
possibility was insufficient to sustain a finding of causation.
¶60 However, there was additional evidence before the jury
that was relevant to whether carbon monoxide was produced in
Smith‘s engine compartment. The jury also heard the recorded
testimony of Mejia, who worked on Smith‘s car after the engine
started smoking. Mejia explained that he found large quantities of
diesel fuel on various parts of the engine, including near the
engine‘s turbocharger and exhaust manifold—locations that Leiss
testified could reach between 500 and 700 degrees Fahrenheit.
¶61 The jury also heard from three of SouthTowne‘s expert
witnesses: Dr. Silcox, Schumacher, and Kuehn. Dr. Silcox testified
that carbon monoxide can autogenerate at 469 degrees Fahrenheit
in an enclosed space and at 869 degrees Fahrenheit on a flat
surface. And on cross-examination, Dr. Silcox—albeit
acknowledging his lack of expertise related to automotive
19
SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
engines—conceded that his deposition testimony had
acknowledged the possibility that parts of the engine could reach
these temperatures.
¶62 Schumacher testified that he agreed with Dr. Silcox‘s
testimony regarding the temperatures at which diesel fuel can
produce carbon monoxide. And he further testified that diesel fuel
on a surface heated to a minimum of 600 degrees Fahrenheit can
produce carbon monoxide in excess of 300 ppm. Schumacher also
testified that the surface of the engine‘s turbocharger can reach
470 to 480 degrees Fahrenheit.
¶63 Finally, Kuehn testified that after driving a similar model
Volkswagen at ―full blast‖ for five minutes, the turbocharger in
the car‘s engine reached 653 degrees Fahrenheit.
¶64 So from SouthTowne‘s three expert witnesses, the jury
heard evidence that carbon monoxide can begin to be produced if
diesel fuel contacts a surface heated to 469 degrees Fahrenheit in
an enclosed space; that the engine‘s turbocharger could reach
temperatures of 470 to 480 degrees Fahrenheit; that carbon
monoxide can be produced at 300 ppm on a 600-plus-degree
Fahrenheit surface; and that the turbocharger can reach up to 653
degrees Fahrenheit after five minutes at ―full blast‖ speeds.
¶65 In addition to the aforementioned expert witnesses, the
jury also heard from a number of fact witnesses who testified
about the circumstances surrounding the alleged carbon
monoxide poisoning. For example, Smith testified that she drove
the vehicle for approximately five hours while smelling noxious
fumes and that upon stopping the vehicle, she observed smoke
pouring from the engine compartment. She also testified that
during her drive to Washington she exhibited symptoms that,
according to her medical expert, were consistent with carbon
monoxide poisoning. Additionally, a number of other individuals
testified to having observed stark differences in Smith‘s health
and behavior before and after her trip to Washington.
¶66 The jury also heard the expert testimony of Dr. Weaver.
Dr. Weaver testified based on objective medical tests, such as an
MRI scan of Smith‘s brain, that Smith had in fact been poisoned
by carbon monoxide. And, after eliminating other potential causes
and considering all the facts presented to him (including the facts
listed above), Dr. Weaver opined that Smith had been poisoned
by carbon monoxide while driving her Volkswagen from Utah to
Washington in December 2011.
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¶67 As part of his testimony, Dr. Weaver explained that
smoldering fuel provides a very inefficient form of oxidation,
which produces much more carbon monoxide than burning fuel
would. He also testified that carbon monoxide poisoning is much
more dangerous at higher altitudes because of the lower amounts
of oxygen in the air. And he testified, based on Smith‘s estimated
exposure time of five hours, that her injuries could have been
caused by a 100-ppm concentration of carbon monoxide, and even
less if the duration of exposure had exceeded the estimated five
hours.
¶68 When we consider this evidence in total, there was
sufficient evidence before the jury to allow it to reasonably infer
that the leaked and heated fuel in Smith‘s engine compartment
produced carbon monoxide.13 In sum, there was evidence that
diesel fuel can produce carbon monoxide when heated to 344 or
469 degrees Fahrenheit (depending on the expert) in an enclosed
space, and that when heated to either 600 or 869 degrees
Fahrenheit (likewise depending on the expert) on a flat surface in
an unenclosed space, the fuel will produce carbon monoxide in
excess of 300 ppm. Mejia, the mechanic, stated that there was
diesel fuel on the turbocharger and exhaust manifold. Leiss
testified that these parts of the engine can reach temperatures
between 500 and 700 degrees Fahrenheit and that the
turbocharger is in an area that receives little airflow. And Kuehn
stated that the turbocharger could reach 653 degrees Fahrenheit
after five minutes of high-velocity driving. This evidence provides
a reasonable basis to conclude that fuel landed on the
turbocharger and exhaust manifold and that these parts of the
engine were heated to a temperature above 600 degrees
Fahrenheit (thus creating conditions that could produce carbon
monoxide in excess of 300 ppm).
¶69 Further, this conclusion is supported by other testimony,
including that Smith experienced symptoms that are consistent
with carbon monoxide poisoning; she observed smoke emanating
from her engine compartment once she stopped her car; a medical
expert found objective evidence that Smith had suffered carbon
__________________________________________________________
13 We note that in its response brief, SouthTowne addresses
Smith‘s arguments regarding Leiss‘s causation testimony but
makes no attempt to address the other sets of evidence discussed
by Smith.
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
monoxide poisoning; people who knew Smith testified that her
behavior dramatically changed after her trip to Washington; and,
after eliminating other potential causes, the medical expert opined
that the December 2011 incident was the cause of the carbon
monoxide poisoning.
¶70 On this record, there was sufficient evidence before the
jury to support a reasonable, non-speculative finding that carbon
monoxide was produced in Smith‘s engine compartment.
Accordingly, this issue could not be decided as a matter of law.
This was a factual dispute properly left to the jury.14
¶71 We next address the district court‘s conclusion that Smith
was required to establish that it was more likely than not that a
dose of carbon monoxide sufficient to poison her was present in
her passenger compartment and that she failed to do so. As
discussed above, Smith was not required to prove this fact by a
preponderance of the evidence. Rather, she had the burden of
proving the element of causation by a preponderance of the
evidence. We agree with the district court that whether Smith was
exposed to a harmful level of carbon monoxide was material to
proving causation. But as we will explain, she did not necessarily
have to prove causation by presenting direct expert testimony
quantifying the concentration of carbon monoxide in her car.
¶72 Smith concedes that she did not provide any expert
evidence of the carbon monoxide levels inside her passenger
compartment during her drive to Washington. But she argues that
such evidence is unnecessary based on our decision in Alder v.
Bayer Corp., AGFA Div., 2002 UT 115, 61 P.3d 1068. SouthTowne
argues that Alder does not apply here.
¶73 In that case, we held that to prove causation in toxic tort
cases, it is not always necessary for plaintiffs to present expert
testimony of the concentration or dosage of the alleged toxin to
which they were exposed. Id. ¶¶ 79–83. We did not create a
blanket rule that such evidence would never be necessary. But we
held that where a plaintiff does not present evidence of a toxin‘s
concentration during the time of alleged exposure, other relevant
circumstantial evidence can be sufficient to take the fact of
__________________________________________________________
14 For these reasons, see infra ¶¶ 60–69, we disagree with
PLAC‘s argument that ―Leiss‘s opinion . . . was an essential
predicate in the chain of causation‖—without which the district
court ―was right to find a failure of proof.‖
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causation out of the realm of speculation. Id. ¶¶ 82–83. These
principles apply here.
¶74 In Alder, medical technicians brought a negligence action
against the manufacturer of an x-ray processing machine, alleging
that fumes from the machine caused harm. Id. ¶¶ 1–2, 19. To
satisfy the causation element, the plaintiffs presented medical
experts who testified, based on the factual circumstances that had
been explained to them and on their diagnosis of the technicians,
―that there is a cause[-]and[-]effect connection, all things
considered, between [plaintiffs‘] exposure in the workplace and
[their] symptoms.‖ Id. ¶ 8 (citation omitted).
¶75 But because the technicians were ―unable to prove
exposure to any chemicals, let alone levels known to cause known
toxic effects,‖ the district court held that they were ―unable to
prove causation‖ and granted summary judgment in the
defendant‘s favor. Id. ¶ 67 (citation omitted). We reversed. Id.
¶ 83.
¶76 In reversing the district court‘s decision, we found
persuasive a Fifth Circuit opinion stating that ―the law does not
require plaintiffs to show the precise level of [toxin] to which they
were exposed.‖ Id. ¶ 76 (referencing Curtis v. M&S Petrol., Inc.,
174 F.3d 661 (5th Cir. 1999)). Rather, we explained all that is
required is ―evidence from which a reasonable person could
conclude that a defendant‘s emission has probably caused a
particular plaintiff the kind of harm of which he or she complains
before there can be a recovery.‖ Id. ¶ 73 (quoting Wright v.
Willamette Indus., Inc., 91 F.3d 1105 (8th Cir. 1996)).
¶77 We also explained that
[i]t is well established that causation ―may be
proved by circumstantial evidence,‖ . . . and that
―[t]he causal relation between an injury and its later
physical effects may be established by the direct
opinion of a physician, by his deduction by the
process of eliminating causes other than the
traumatic agency, or by his opinion based upon a
hypothetical question.‖ Id. ¶ 87 (second and third
alterations in original) (quoting Zuchowicz v. United
States, 140 F.3d 381, 389 (2d Cir. 1998)).
¶78 As an example of the type of circumstantial evidence that
can supplement an expert‘s opinion, we cited a case where
causation was established through expert opinion based ―on the
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
temporal relationship between the [alleged breach] and the start
of the disease and the differential etiology method of excluding
other possible causes.‖ Alder, 2002 UT 115, ¶ 86 (quoting
Zuchowicz, 140 F.3d at 385).
¶79 With these legal principles in mind, we concluded that
the technicians had presented sufficient evidence that they were
exposed to a harmful dose of chemicals to create a dispute of fact
for the jury. Specifically, we noted that the x-ray machine used
chemicals known to cause the technicians‘ symptoms and that the
machine ―produced an exhaust stream at least potentially laced
with chemicals.‖ Alder, 2002 UT 115, ¶ 70 (emphasis added). And
we noted that the technicians‘ medical experts had testified, after
eliminating other potential causes, that there was a reasonable
medical probability that the technicians‘ exposure to the x-ray
machine caused the symptoms. Id. ¶¶ 8, 71. Based on this
evidence, we concluded that the plaintiff technicians had
provided sufficient evidence to support their theory of causation,
even though they had no direct evidence of the quantity of the
chemicals to which they were exposed.15 See id. ¶ 87.
__________________________________________________________
15 In summarizing our decision in Alder, we offered a helpful
insight to future courts dealing with complicated causation issues,
which warrants repetition in full:
Individuals routinely feel the effects of a wide array
of common phenomena whose mechanisms remain
unexplained by science, including, for example, the
law of gravity, the nature of light, the source of
personality, and the process of cell differentiation. If
a bicyclist falls and breaks his arm, causation is
assumed without argument because of the temporal
relationship between the accident and the injury.
The law does not object that no one measured the
exact magnitude and angle of the forces applied to
the bone. Courts do not exclude all testimony
regarding the fall because the mechanism of gravity
remains undiscovered. Legally, an observable
sequence of condition → event → altered condition,
has been found sufficient to establish causation even
when the exact mechanism is unknown. Therefore,
we hold that Technicians enjoy the same
opportunity to prove that which they can, as do the
victims of more prosaic injuries.
(continued . . .)
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¶80 The district court in this case distinguished Alder on
factual grounds. But the rationale of Alder applies here.16 That case
holds that plaintiffs provide sufficient evidence of causation even
where they do not have an expert who can quantify their level of
toxic exposure, as long as the evidence that was presented
provided a reliable basis from which the jury could reasonably
infer that the alleged toxin was present and that it harmed the
plaintiff. As we explained, because ―one who injures another
takes him as he is,‖ a ―toxic level‖ of a chemical ―becomes any
level that is harmful to the[] specific plaintiff[].‖ Id. ¶ 81 (citation
omitted).
¶81 Based on the principles articulated in Alder and our other
causation cases, we conclude the evidence at trial here was
sufficient to permit the jury to find without speculation that Smith
was exposed to a harmful dose of carbon monoxide during her
drive. We first note that Smith did present some evidence of the
level at which carbon monoxide generally becomes harmful, and
some evidence of the concentration of carbon monoxide produced
under her hood. According to Dr. Weaver, exposure to a 100-ppm
concentration of carbon monoxide over a five–hour period could
have caused Smith‘s carbon monoxide poisoning. And, as we
explained above, the evidence supported a reasonable inference
that the smoldering fuel could produce carbon monoxide at a
concentration of about 300 ppm. As the district court recognized,
Leiss testified that there was a pathway for this carbon monoxide
to enter the passenger compartment of the vehicle. While this
evidence could not account for certain variables and therefore
could not quantify the concentration of carbon monoxide to which
Smith was actually exposed in the passenger compartment of the
vehicle, it did constitute some evidence of the possible amount of
Smith‘s exposure.
Alder v. Bayer Corp., AGFA Div., 2002 UT 115, ¶ 88, 61 P.3d 1068.
16 PLAC likewise argues that Alder is ―the exception, not the
rule,‖ and that the exception carved out in that case should not
apply here. But the overarching principles we articulated in Alder
remain applicable to these facts. And it is the totality of evidence
presented in this case—admittedly lacking precise quantification
of the dose of carbon monoxide to which Smith was exposed—
that supports a non-speculative finding of causation.
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
¶82 Further, the harmful chemical at issue in this case—
carbon monoxide—is ―known to cause‖ the symptoms Smith
suffered. And there is ample circumstantial evidence that Smith
suffered carbon monoxide poisoning during the drive. Smith
testified that she experienced symptoms consistent with carbon
monoxide poisoning during and after the drive; she and other fact
witnesses testified to a significant change in her behavior
immediately after the drive; and Dr. Weaver concluded, based on
brain scans (among other things), that Smith had indeed
experienced carbon monoxide poisoning.
¶83 Finally, as in Alder, in this case a medical expert testified
that, after eliminating other potential causes, there was a
reasonable medical probability that Smith‘s carbon monoxide
poisoning was caused by the incident in question. Alder,
2002 UT 115, ¶ 8.
¶84 This evidence was sufficient to provide the jury with a
reasonable basis to find that Smith was exposed to a harmful dose
of carbon monoxide during her drive. See id. ¶ 80 (―[W]herever
chemicals are part of the environment, victims‘ toxic symptoms
are themselves evidence of harmful levels, at least as an issue of
triable fact.‖); see also id. ¶ 87 (―[I]t is well established that
causation ‗may be proved by circumstantial evidence,‘ . . . and
that ‗[t]he causal relation between an injury and its later physical
effects may be established by the direct opinion of a physician, by
his deduction by the process of eliminating causes other than the
traumatic agency, or by his opinion based upon a hypothetical
question.‖ (alterations in original) (quoting Zuchowicz, 140 F.3d at
389). Indeed, this evidence was sufficient to permit the jury to find
that the carbon monoxide produced by the leaking diesel fuel
reached Smith and caused her to suffer carbon monoxide
poisoning. And while SouthTowne argues that Leiss‘s evidence
alone was not sufficient to establish this point, it does not address
at all the remainder of the relevant evidence presented to the jury.
¶85 Under Alder, Smith was not required to prove the level of
carbon monoxide to which she was exposed. To prove her theory
of causation, Smith needed to adduce evidence that would permit
the jury to find, without speculation or guesswork, that she was
exposed to enough carbon monoxide to harm her. We conclude
that she did so.
¶86 Accordingly, we conclude that Smith presented legally
sufficient evidence of causation. And we reverse the grant of
judgment as a matter of law to SouthTowne.
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B. Standard of Care
¶87 On cross appeal, SouthTowne argues that an alternative
basis for granting judgment in its favor is that Smith was required
to present an expert who could opine on the standard of care
applicable to a car dealership handling a vehicle recall, and she
failed to do so. The district court rejected this argument,
concluding that expert testimony on this issue was unnecessary
and that, regardless, this argument was superfluous because
―even if the [c]ourt directed a verdict as to negligence, [Smith‘s
strict liability] claim would still stand.‖
¶88 We agree with the district court. The evidence before the
jury, which included testimony from a Volkswagen service
manager and a Volkswagen senior manager of product analysis,
was sufficient to provide the jury with a reasonable basis to find
that SouthTowne acted unreasonably in selling the recalled
vehicle to Smith. And even if SouthTowne had prevailed on this
argument it would still be liable for Smith‘s injuries based on
strict liability.
¶89 ―To determine the relevant standard of care in negligence
cases, the essential question is the care that a reasonable person
would undertake in the defendant‘s circumstances.‖ Gables at
Sterling Vill. Homeowners Ass’n, Inc. v. Castlewood-Sterling Vill. I,
LLC, 2018 UT 04, ¶ 57, 417 P.3d 95 (citation omitted) (internal
quotation marks omitted). This is generally a question of fact for
the jury. See id. (―[B]ecause the essential question is the care that a
reasonable person would undertake in the defendant‘s
circumstances, we generally leave it to jurors—as ordinary
persons representing a particular community—to make that
judgment.‖ (citation omitted)). Therefore, in ordinary negligence
cases, ―we ask a jury of reasonable people to draw upon their
collective expertise to conclude how a reasonable person would
have acted in [a given] circumstance.‖ Id.¶90 But SouthTowne argues that the complicated procedures
involved with a vehicle recall prevented the jury from reliably
answering the standard-of-care question here without the aid of
expert testimony. We have recognized that, in limited cases,
expert testimony may be needed to establish a standard of care.
See id. ¶ 58 (―Our case law recognizes a limited exception to this
general rule.‖). But those types of cases tend to implicate scientific
or technical matters ―not within the common knowledge of the lay
juror,‖ id. ¶ 58 (citation omitted) (internal quotation marks
omitted), or require the plaintiff to establish ―a particularized and
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
enhanced duty of care,‖ id. ¶ 56 (citation omitted). In other words,
expert testimony is required only in cases where the average
layperson lacks the technical or scientific knowledge to determine
what a reasonable person would have done in the defendant‘s
situation. See id. ¶ 59 (―[T]he need for expert testimony turns on
the nature of the standard to be addressed by the jury. . . . Where
the standard implicates scientific matters beyond the capacity of
an ordinary juror . . . expert testimony may be required.‖ (citation
omitted)).
¶91 In this case, there was sufficient evidence for the jury to
determine how a reasonable person would have acted in response
to the vehicle recall. The jury heard the testimony that
Volkswagen Corporate issued a recall through a mandatory stop-
sale order for a number of listed vehicles. This order prohibited
the dealership from selling, leasing, or trading any of the covered
vehicles—identified by the vehicle‘s vehicle identification number
(VIN)—until a certain fuel line was replaced. And a Volkswagen
service manager testified that a dealership could use the VIN to
identify the vehicles on its lot that were subject to the recall.
Additionally, a Volkswagen senior officer testified that Smith
should not have been sold the vehicle at issue in this case. This is
enough evidence for the jury to decide the standard-of-care
question in Smith‘s favor.
¶92 In addressing SouthTowne‘s argument below, the district
court concluded that ―there was nothing to indicate that a recall
standard of care expert was required‖ in this case. We agree.
SouthTowne has failed to show that the jury needed the help of
expert testimony to determine what a reasonable person should
have done in response to a mandatory stop-sale order.
¶93 In essence, SouthTowne‘s argument on this point is that it
did not breach a standard of care when it sold the vehicle because,
under SouthTowne‘s interpretation of applicable federal statutes,
regulations, and industry safety standards, Volkswagen‘s stop-
sale order did not apply to Smith‘s vehicle. But whether
Volkswagen complied with applicable statutes or regulations is
not an ultimate issue in this negligence case.
¶94 It is true, of course, that in some negligence cases a court
may adopt a statute or regulation as a standard of care in addition
to the typical reasonable-person standard. See, e.g., Colosimo v.
Gateway Cmty. Church, 2018 UT 26, ¶ 44, 424 P.3d 866 (discussing
the circumstances in which it is appropriate to adopt a statute as a
standard of care in a negligence case). But the existence of a
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relevant statute does not mean that a plaintiff is barred from
proving negligence using the default reasonable-person standard.
See generally id. (discussing plaintiff‘s negligence claim under the
typical reasonable-person standard of care as well as under an
alleged statutory standard of care).
¶95 So, notwithstanding the various laws that may have also
governed SouthTowne‘s conduct in this case, the only
standard-of-care evidence Smith needed to present was evidence
that a reasonable person would not have sold the vehicle to Smith
after receiving the mandatory stop-sale order. Smith presented
this evidence. And although SouthTowne presented contrary
evidence, Smith‘s evidence provided the jury with a reasonable
basis to rule in Smith‘s favor on this point.
¶96 Accordingly, we conclude that the district court correctly
rejected SouthTowne‘s argument regarding the standard of care.
And this does not provide an alternative basis for affirming the
order of judgment as a matter of law in its favor.
II. CONDITIONAL NEW TRIAL ORDER
¶97 Next, the district court conditionally granted
SouthTowne a new trial because it concluded that certain
testimony from two of Smith‘s experts—Leiss and Dr. Weaver—
should have been excluded, and that without this testimony there
was insufficient evidence to support Smith‘s claims. 17 Smith
argues this was error because SouthTowne never made the
objections that formed the basis of the court‘s ruling (therefore
waiving them), the district court was wrong on the merits, and
she was not given an opportunity to respond to the court‘s
reasons for retroactively excluding the testimony. We find Smith‘s
final argument to be persuasive. And because we reverse the
__________________________________________________________
17 The trial court analyzed SouthTowne‘s motion for a new
trial under rule 59(a)(6) of the Utah Rules of Civil Procedure,
which permits a new trial to be granted for ―insufficiency of the
evidence to justify the verdict or other decision.‖ (The court
identified the applicable rule as 59(a)(5), possibly due to a
typographical error.) However, in its motion, SouthTowne argued
it was deprived of a fair trial under rule 59(a)(1), which allows a
court to grant a new trial based on ―irregularity in the
proceedings of the court, jury or opposing party, or any order of
the court, or abuse of discretion by which a party was prevented
from having a fair trial.‖ UTAH R. CIV. P. 59(a)(1).
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
court‘s rulings excluding testimony from Leiss and Dr. Weaver on
this basis, we must reverse the court‘s grant of a conditional new
trial.
¶98 On cross appeal, SouthTowne argues that the district
court should have granted its new trial motion on two other
grounds, which the court rejected: (1) that Dr. Weaver should not
have been permitted to opine on causation due to alleged
reliability defects in his differential diagnosis, and (2) that Dr.
Orrison‘s brain scans and opinions should not have been
disclosed to the jury because he was a non-testifying witness and
Smith did not make the necessary foundational showing of
authenticity or reliability. SouthTowne also argues that in the
event of a new trial, we should correct these erroneous rulings.
But we conclude the court correctly rejected the arguments
SouthTowne advances in its cross appeal. So they do not provide
an alternative basis for affirming the grant of a conditional new
trial.
¶99 Rule 50 requires a court that has granted a motion for
judgment as a matter of law to ―also conditionally rule on any
motion for a new trial by determining whether a new trial should
be granted if the judgment is later vacated or reversed.‖ UTAH R.
CIV. P. 50(c)(1). In doing so, ―[t]he court must state the grounds for
conditionally granting or denying the motion for a new trial‖
under rule 59. Id. A court may grant a new trial if it determines
―evidence has been erroneously admitted during the course of a
trial.‖ Franklin v. Stevenson, 1999 UT 61, ¶ 10, 987 P.2d 22. But
―[n]o error in either the admission or the exclusion of evidence . . .
is ground for granting a new trial . . . unless refusal to take such
action appears to the court inconsistent with substantial justice.‖
UTAH R. CIV. P. 61.
¶100 ―Granting a new trial is an extreme remedy.‖ Boyle v.
Christensen, 2011 UT 20, ¶ 17, 251 P.3d 810. And while we will not
disturb a ruling on a motion for a new trial absent an abuse of
discretion, we have made clear that ―[t]he power of a trial judge to
order a new trial is to be used in those rare cases when a jury
verdict is manifestly against the weight of the evidence.‖
Braithwaite v. W. Valley City Corp., 921 P.2d 997, 1001 (Utah 1996)
(citation omitted). An abuse of discretion exists where ―the district
court relied on an erroneous conclusion of law,‖ Northgate Vill.
Dev., LC v. City of Orem, 2019 UT 59, ¶ 27, 450 P.3d 1117 (citation
omitted), or ―where there is no evidentiary basis for the trial
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court‘s ruling.‖ Dahl v. Dahl, 2015 UT 79, ¶ 63, 459 P.3d 276(citation omitted).
¶101 In its new trial ruling, the district court noted that the
―area of most concern‖ to the court was ―the testimony of Mr.
Leiss.‖ We therefore begin with Leiss‘s expert testimony.
A. Leiss
¶102 As discussed, at trial Smith offered the opinion
testimony of Peter Leiss—an accident reconstruction expert and
mechanical engineer with twenty years of experience in the
automotive engineering industry, including in quality control for
diesel fuel systems. Leiss was called to testify as to whether the
diesel fuel spill could have generated carbon monoxide, and if so,
whether there was a passageway for the carbon monoxide to
travel from the engine compartment into the passenger
compartment of Smith‘s car. The district court held that the latter
issue was ―well within [Leiss‘s] bailiwick as an automotive
engineer,‖ rendering its resolution a ―factual determination for
the jury.‖ But the court found fault with Leiss‘s reliance on the test
conducted by the lab technician at Robson Forensics, see supra
¶ 18, which the court referred to as the ―fish tank test.‖
¶103 The district court concluded that it had erred in
admitting Leiss‘s testimony ―as it relates to the alleged production
of [carbon monoxide] based on the fish tank test . . . because it was
unreliable and prejudicial‖ to SouthTowne. In reaching its ruling,
the court took particular umbrage at Leiss‘s reliance on an
―unidentified ‗lab technician‘ . . . working at [Leiss‘s] place of
employment‖ who performed the test. The court also deemed the
test inadmissible because Leiss was not a chemist and therefore
was not qualified to assess the reliability of the test himself. The
court also noted that during his trial testimony, Leiss was unable
to answer a number of questions about the testing methods used.
¶104 The court essentially determined that Leiss‘s reliance on
the test did not meet the standards of Utah Rule of Evidence 703,
which permits experts to ―base an opinion on facts or data in the
case that the expert has been made aware of or personally
observed.‖ Under this rule, an expert‘s opinion may be based on
otherwise inadmissible ―facts or data‖ that the expert has been
made aware of, provided that ―experts in the particular field
would reasonably rely on those kinds of facts or data in forming
an opinion on the subject.‖ UTAH R. EVID. 703. If the proponent of
the opinion intends to disclose the underlying ―facts or data‖ to
the jury, and the facts or data are otherwise inadmissible (for
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
example, because they are hearsay), the proponent may do so
―only if their probative value in helping the jury evaluate the
opinion substantially outweighs their prejudicial effect.‖ Id.
¶105 The district court then concluded that because Leiss‘s
opinion was based on an unreliable test for which he had
provided insufficient foundation, his opinion that carbon
monoxide could have been produced under Smith‘s hood was
inadmissible under Utah Rule of Evidence 702(b). This rule
mandates that any ―[s]cientific, technical, or other specialized
knowledge‖ serving as the basis for expert testimony must meet
―a threshold showing that the principles or methods . . .
underlying . . . the testimony (1) are reliable, (2) are based upon
sufficient facts or data, and (3) have been reliably applied to the
facts.‖ UTAH R. EVID. 702(b).
¶106 Smith first argues that SouthTowne waived this
argument because it did not object to the test for the reasons relied
upon by the district court either before or during trial or in its
post-trial motions, and that, therefore, the district court‘s order
should be reversed on this basis.
¶107 SouthTowne does not respond to Smith‘s waiver
argument in its appellee brief. And it does not dispute Smith‘s
assertion that it did not raise the particular objections relied upon
by the district court.
¶108 Our independent review of the record confirms that
SouthTowne did not raise these specific objections to Leiss‘s
testimony. To be clear, in its pre-trial motion in limine,
SouthTowne did object to Leiss testifying that the leaking diesel
fuel created carbon monoxide in Smith‘s car. But it objected for a
different reason. SouthTowne argued not that the laboratory test
was unreliable, that the qualifications or identity of the lab
technician were unknown, or that, as a non-chemist, Leiss was
unqualified to judge whether the test was reliable or whether the
technician was qualified. Rather, SouthTowne argued that Leiss
should not be allowed to opine about carbon monoxide
production in Smith‘s engine compartment because the test did
not replicate the conditions inside the engine compartment of a
moving vehicle. In this regard, SouthTowne and its experts took
particular issue with the fact that the aquarium test was done in
an enclosure and therefore did not account for air flow. In its
reply brief in support of its motion in limine in the district court,
SouthTowne explained:
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The reliability issue with respect to Mr. Leiss
concerns the manner in which he proposes to apply
his aquarium test to the facts of this case . . . . There
are problems with this detection method . . . .
Defendants concede, however, that this particular
problem with the test goes to weight and will
counter it with [expert] testimony . . . . The Rule 702
problem arises from the way in which Mr. Leiss
proposes to extrapolate from his aquarium results to
conditions under the hood, and inside the passenger
compartment, of the Smith vehicle.
¶109 So, in its motion in limine, SouthTowne did not challenge
the admissibility of the test itself, the qualifications of the lab
technician, or Leiss‘s reliance on the test. In fact, in criticizing one
of the methods the lab technician used, SouthTowne recognized
this went only to the weight to be given the evidence rather than
the admissibility of the test itself.
¶110 SouthTowne also did not object to the admission of the
test results during trial. During Leiss‘s direct examination, Smith
offered the laboratory test results as an exhibit. The court asked
SouthTowne if it had any objection to the exhibit, to which
SouthTowne answered, ―No.‖18
¶111 So Smith is correct that SouthTowne did not challenge
Leiss‘s testimony for the reasons relied upon by the district court
either before or during trial. And SouthTowne also did not make
an argument on this basis in its motion for a new trial.
¶112 Usually, this would be dispositive. See UTAH R. EVID.
103(a)(1) (requiring a party to ―timely object[] or move[] to strike‖
evidence it claims was erroneously admitted, and to ―state[] the
specific ground‖ upon which the objection was lodged). But here,
it is not the end of the analysis. Under civil rule 59(d), a court may
grant a motion for a new trial ―for a reason not stated‖ in a party‘s
motion ―[a]fter giving the parties notice and an opportunity to be
heard.‖ UTAH R. CIV. P. 59(d).
¶113 In scrutinizing Leiss‘s testimony as it did, the district
court was properly observing its role as gatekeeper with respect
__________________________________________________________
18 This may have been because SouthTowne‘s experts relied on
similar tests, with variations to account for air flow. See supra
¶¶ 25–27.
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
to the admissibility of expert testimony.19 The court raised
concerns with Leiss‘s reliance on the aquarium test based on its
front-row seat at the trial. And rule 59(d) permitted the court to
grant a new trial for a reason not raised by SouthTowne in its new
trial motion. So SouthTowne‘s failure to preserve this issue is not
dispositive. However, as we will discuss, when a court proceeds
under rule 59(d), it must give the non-moving party notice of its
concerns and an opportunity to be heard.
__________________________________________________________
19 In its amicus brief, UDLA requests clarification of the proper
application of admissibility determinations under rule 702, noting
confusion over advisory language in the 2007 amendment.
Specifically, UDLA argues that our advisory language
―incorrectly downplays the district court‘s important gatekeeping
function,‖ thereby encouraging trial judges to include expert
testimony ―so long as it can be said that any basic indication of
reliability exists, no matter how far-fetched.‖ UDLA asks us to
―reject any reading of the advisory language that would
discourage judges from asserting [their gatekeeping] role.‖
UDLA accurately notes that our advisory language departs
from the federal rule by broadening the scope of ―[s]cientific,
technical, or other specialized knowledge‖ on which an expert
may rely. See UTAH R. EVID. 702 & original advisory committee
notes. But this does not suggest that trial judges should abdicate
their gatekeeping role. Instead, rule 702 permits judges, as
gatekeepers, to err on the side of admission within the confines of
rule 702. ―[T]he rigor of [the rule‘s application] ‗will vary
depending on the complexity of the particular case.‘‖ State v.
Roberts, 2015 UT 24, ¶ 54, 345 P.3d 1226 (quoting Eskelson ex rel.
Eskelson v. Davis Hosp. & Med. Ctr., 2010 UT 59, ¶ 15, 242 P.3d 762).
Judges are compelled to exclude expert testimony where it is
unhelpful, unreliable, unduly prejudicial, or has improperly
invaded the province of the jury. See State v. Martin, 2017 UT 63,
¶¶ 30–31, 423 P.3d 1254. But judges may not ―displace the
province of the factfinder to weigh . . . evidence.‖ State v. Jones,
2015 UT 19, ¶ 26, 345 P.3d 1195. And although ―the line between
assessing reliability and weighing evidence can be elusive‖ under
rule 702, ―the factfinder [and not arbiter] bears the ultimate
responsibility for evaluating the accuracy, reliability, and weight
of the testimony.‖ Id. (quoting Gunn Hill Dairy Props., LLC v. L.A.
Dep’t of Water & Power, 2012 UT App 20, ¶ 47, 269 P.3d 980).
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¶114 Smith next argues that the district court was wrong on
the merits. She contends that Leiss did know who performed the
lab test and it was reasonable for Leiss to rely on the results of the
test. First, Smith proffers Leiss‘s deposition testimony, in which he
identifies the technician conducting the lab test as the ―test lab
manager, Brett Johnson,‖ and she highlights a portion of Leiss‘s
trial testimony in which he states that the technician does this
kind of testing ―very often,‖ he is ―knowledgeable‖ and ―well
versed‖ in this kind of testing, and experts at Robson Forensics
typically rely on the technician. And she argues that she never
had the opportunity to offer this response to the district court‘s
concerns.
¶115 We ultimately do not resolve whether the district court‘s
conclusion that it should have excluded this portion of Leiss‘s
testimony was correct. This is because we find Smith‘s related
argument—that she was not given the opportunity to respond to
the court‘s concerns—to be dispositive.
¶116 While rule 59(d) permits a district court to grant a
motion for a new trial for a reason not advanced by the moving
party, a court may do this only ―[a]fter giving the parties notice
and an opportunity to be heard.‖20 UTAH R. CIV. P. 59(d). See also
Salt Lake Legal Def. Ass’n v. Atherton, 2011 UT 58, ¶ 12, 267 P.3d 227(explaining that due process mandates a party ―be given notice
and an opportunity to be heard‖ before a judge ―adjudicate[s] its
interests‖). This means that the non-moving party must be given
―timely and adequate notice‖ and an ―opportunity to be heard in
a meaningful way.‖ Nelson v. Jacobsen, 669 P.2d 1207, 1211 (Utah
1983). We have described this as ―the very heart of procedural
fairness.‖ Id.¶117 Here, Smith was not on notice of the substance of the
court‘s concerns prior to the hearing on SouthTowne‘s post-trial
motions because SouthTowne had not raised these issues in its
new trial motion. We recognize that an issue may become
apparent to a court during argument on a post-trial motion, and
thus make prior notice impossible. In such a situation, a court can
__________________________________________________________
20 We do not explicate upon the issues a court may properly
raise sua sponte when granting a motion for a new trial, except to
emphasize that it may do so only after giving the parties fair
notice and a meaningful opportunity to be heard.
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
ensure procedural fairness by giving the non-moving party
additional time to address the new issue raised by the court.
¶118 In addition to lack of notice, Smith did not have a
meaningful opportunity to be heard on the court‘s objections to
the lab test. After the hearing, Smith attempted to submit an
affidavit from Leiss to respond to the district court‘s concerns, but
the court rejected the affidavit as an inappropriate attempt to add
substantive evidence to the trial record. However, deposition
testimony, affidavits, or other pertinent evidence may be admitted
as information relevant to the court‘s legal determination
regarding the admissibility of evidence. See UTAH R. EVID. 104(a)
(―The court must decide any preliminary question about whether
a witness is qualified . . . or evidence is admissible. In so deciding,
the court is not bound by evidence rules, except those on
privilege.‖); see also State v. Sheehan, 2012 UT App 62, ¶ 28,
273 P.3d 417 (―[T]here are two separate reliability determinations:
admissibility, which is a legal determination the court makes, and
the weight assigned to the evidence admitted at trial, which is a
factual determination made by the fact finder.‖); Goebel v. Denver
& Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000) (―It
is within the discretion of the trial court to determine how to
perform its gatekeeping function under Daubert. The most
common method for fulfilling this function is a Daubert hearing,
although such a process is not specifically mandated. The district
court may also satisfy its gatekeeper role when asked to rule on a
motion in limine, on an objection during trial, or on a post-trial
motion so long as the court has sufficient evidence to perform ‗the
task of ensuring that an expert‘s testimony both rests on a reliable
foundation and is relevant to the task at hand.‘‖ (second emphasis
added) (citations omitted)).
¶119 Where a court is considering granting a new trial based
on concerns outside those raised by the moving party, rule 59(d)
requires the court to ensure that the non-moving party has
adequate notice of the new issues and a meaningful opportunity
to address them before granting the motion. Because this did not
happen here, we reverse the court‘s new trial ruling excluding the
portion of Leiss‘s testimony that relied on the aquarium test.21
__________________________________________________________
21 However, we note that even if this portion of Leiss‘s
testimony were excluded, it would not necessarily render the
evidence at trial insufficient to justify the verdict under rule
(continued . . .)
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B. Dr. Weaver
¶120 Smith next challenges the district court‘s grant of
SouthTowne‘s new trial motion based on the court‘s conclusion
that it should not have admitted Dr. Weaver‘s testimony. We
reverse this ruling as well, because it is based on an issue
SouthTowne did not raise in its new trial motion, and Smith did
not have notice of or a meaningful opportunity to respond to the
court‘s concerns with Dr. Weaver‘s testimony.
¶121 Dr. Weaver opined that Smith had suffered carbon
monoxide exposure while driving her Volkswagen to Washington
in December 2011. He based this opinion on a review of Smith‘s
medical files, on his experience diagnosing carbon monoxide
poisoning, on an in-person evaluation of Smith—which included
physical and neurological examinations, an interview about
Smith‘s medical history, and on a battery of written
questionnaires and assessments, and on his elimination of other
potential causes. The process of identifying the cause of an injury
by eliminating other potential causes—a process referred to as a
―differential diagnosis‖—is generally considered a reliable
method supporting expert testimony. See Alder v. Bayer Corp.,
AGFA Div., 2002 UT 115, ¶ 63, 61 P.3d 1068.
¶122 But although this method is generally accepted, the
district court found Dr. Weaver‘s diagnosis problematic because
the court believed Dr. Weaver was unaware of ―a second possible
source of [carbon monoxide] poisoning‖—a period of time in
which Smith became homeless and lived in her car. For this
reason, the court ruled that SouthTowne‘s motion for a new trial
should be granted because ―Dr. Weaver‘s testimony regarding the
source of Plaintiff‘s [carbon monoxide] poisoning was not properly
supported by substantial competent evidence.‖
¶123 Smith argues that SouthTowne waived this objection.
She is correct. SouthTowne‘s argument at trial and in its motion
for a new trial was that Dr. Weaver‘s differential diagnosis was
unreliable because Smith had an upper respiratory infection when
she drove to Washington, and Dr. Weaver failed to reliably rule
59(a)(6). As discussed above, see supra ¶¶ 58–70, the lab test
results and Leiss‘s corresponding testimony were not the only
evidence from which the jury could have reasonably inferred that
the diesel fuel leaking onto Smith‘s engine compartment
produced carbon monoxide.
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SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
out the respiratory infection as the cause of Smith‘s symptoms.
And that is a substantively different argument than the court‘s
concern that Dr. Weaver had not ruled out the period when Smith
lived in her car.
¶124 But again, waiver is not dispositive here. See supra ¶ 112.
The court had the authority under rule 59(d) to grant a new trial
for reasons not raised by SouthTowne in its new trial motion.
¶125 Smith also challenges the merits of the court‘s ruling. She
asserts that the court‘s objection to Dr. Weaver‘s differential
diagnosis was factually incorrect because Dr. Weaver did consider
that Smith lived in her car for a period of time and ruled it out as a
possible cause of her carbon monoxide poisoning. Smith proffers
evidence in support of her argument, and again protests that she
was not given the opportunity to respond to the court‘s concern.
¶126 As with Leiss, we do not resolve this issue on the merits.
Rather, we again find dispositive Smith‘s argument that she did
not have an adequate opportunity to be heard on this issue.
Because SouthTowne did not raise this issue in its post-trial
motion, the court was required to give Smith ―notice and an
opportunity to be heard‖ before granting the motion for this
reason. See UTAH R. CIV. P. 59(d). But since SouthTowne did not
ask for a new trial on this basis, Smith did not have notice prior to
the hearing that this would be an issue. And although she stated
at the hearing that the issue had not been briefed and she was
learning of it for the first time, she was not given any additional
time to respond to it. Accordingly, we conclude that the
requirements of rule 59(d) were not met. And we reverse the
court‘s new trial ruling excluding Dr. Weaver‘s testimony.
¶127 The court‘s grant of a new trial was based on its
exclusion of testimony from Leiss and Dr. Weaver. Because we
have reversed these underlying rulings, we reverse the
conditional grant of a new trial in favor of SouthTowne.
C. SouthTowne’s Cross Appeal
1. Dr. Weaver
¶128 On cross appeal, SouthTowne argues that the district
court should have excluded Dr. Weaver‘s testimony because he
failed to reliably apply the methodology of a differential diagnosis
to account for Smith‘s other illnesses and symptoms around the
same time she allegedly suffered carbon monoxide poisoning.
SouthTowne made this argument in its motion for a new trial, and
the district court rejected it.
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¶129 Under Utah Rule of Evidence 702(b)(2), a court may
exclude expert testimony if that testimony is not based on
sufficient facts or data. As such, expert testimony must rest on a
reliable foundation. See Patey v. Lainhart, 1999 UT 31, ¶ 23,
977 P.2d 1193. Speaking specifically about the foundation
necessary to opine on the issue of causation, in Patey, we
explained that a ―declaration about causation is inadmissible
‗where an expert witness has not testified to sufficient facts on
which to base his opinion.‘‖ Id. (citation omitted). In other words,
under rule 702, ―[t]he expertise of the witness, his degree of
familiarity with the necessary facts, and the logical nexus between
his opinion and the facts adduced must be established.‖ Id.(citation omitted).
¶130 A differential diagnosis is a presumptively admissible
diagnostic technique. See Alder, 2002 UT 115, ¶¶ 62–64
(―[D]ifferential diagnosis is one of the oldest and most widely
used and recognized of all [diagnostic] methods.‖). And here, Dr.
Weaver‘s expert testimony, ―based on accepted and standard
methods and techniques‖ alongside sufficient facts and data to
underpin those techniques, does not run afoul of rule 702. See id.
¶ 66.
¶131 SouthTowne is correct that simple temporal proximity is
insufficient support for a differential diagnosis.22 See Taylor v.
Univ. of Utah, 2020 UT 21, ¶ 56, 466 P.3d 124. But as the district
court accurately observed, Dr. Weaver considered more than the
timing of Smith‘s alleged exposure and her reported symptoms—
including by conducting an extensive review of Smith‘s medical
history and preexisting conditions. The court of appeals has found
such testimony admissible under rule 702 where it is based on
__________________________________________________________
22 PLAC also asserts that temporal proximity is an insufficient
basis for determining causation. But Dr. Weaver considered
information and data that went beyond the temporal connection
between Smith‘s alleged carbon monoxide exposure and the onset
of her symptoms when forming his causation opinion. See supra
¶ 121. We are not holding that a causation opinion is per se
admissible simply because an expert employs a differential
diagnosis methodology. That methodology must be grounded in
sufficient facts and data. The district court found that this was the
case here. And we cannot conclude that it abused its discretion in
so holding.
39
SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
patient statements, temporal proximity, physical examination,
and imaging studies. See Majors v. Owens, 2015 UT App 306, ¶ 20,
365 P.3d 165. Similarly here, Dr. Weaver relied on Smith‘s
statements and recorded medical history, related imaging studies,
the temporal proximity of her alleged carbon monoxide exposure
to her constellation of symptoms, and his own physical and
neurological examination of Smith to conclude that Smith had
suffered carbon monoxide poisoning during her drive to
Washington. Based on these facts, we do not disturb the district
court‘s assessment that it ―cannot conclude that the manner in
which [Dr. Weaver] conducted his differential medical diagnosis
was so inappropriate or prejudicial as to require a new trial.‖
2. Dr. Orrison
¶132 Lastly, on cross appeal, SouthTowne argues that the
district court should not have permitted Smith to rely on the scans
and related opinions of Dr. Orrison, who ordered an MRI of Smith
in November 2013 but was unable to testify at trial because he
passed away prior to its start. Specifically, SouthTowne asks us to
hold that the district court abused its discretion in (1) failing to
apply rule 703‘s balancing test when it denied SouthTowne‘s
motion in limine seeking to exclude Dr. Orrison‘s scans, and
(2) failing to grant SouthTowne a new trial based on the improper
introduction of evidence of Dr. Orrison‘s assessment.
¶133 But the district court‘s ruling was correct. As
SouthTowne notes in its brief, ―[a]s a general principle, medical
experts often rely on data provided by specialists from other
fields, treating providers, or data obtained from imaging scans or
diagnostic tests.‖ And, as mentioned, under rule 703, expert
opinion may be based on otherwise inadmissible ―facts or data‖
that the expert has been made aware of provided that other
―experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject.‖ UTAH.
R. EVID. 703. In fact, ―[m]uch of what experts rely upon in
formulating opinions is inadmissible evidence.‖ Patey, 1999 UT 31,
¶ 33; see also State v. Kelley, 2000 UT 41, ¶ 23, 1 P.3d 546 (noting
that we have held expert testimony based on psychological and
medical records not performed by the testifying expert to be
admissible). And while rule 703 cannot be used to circumvent
other rules of evidence, ―experts may recite hearsay evidence in
order to lay a foundation for the opinions they give to the jury,‖
Patey, 1999 UT 31, ¶ 33, provided the ―probative value in helping
40
Cite as: 2022 UT 29Opinion of the Court
the jury evaluate the opinion substantially outweighs [any]
prejudicial effect.‖ UTAH R. EVID. 703.
¶134 SouthTowne does not contest that Dr. Orrison was
qualified to order and interpret the results of Smith‘s brain
imaging. Nor does it dispute that MRI reports are reasonably
relied on by experts in the field as part of the diagnostic process.
As the district court aptly pointed out, SouthTowne‘s own
medical expert relied on the records and opinions of other
non-testifying experts in this case—including that of Dr. Orrison.
And while the ―opposing party may challenge the suitability or
reliability of such materials on cross-examination, [any] such
challenge goes to the weight to be given the testimony, not to its
admissibility.‖ Green v. Louder, 2001 UT 62, ¶ 28, 29 P.3d 638(emphasis omitted) (citation omitted).
¶135 Importantly, SouthTowne overstates the extent to which
Smith‘s medical experts relied on the findings of Dr. Orrison.
Neither the scans Dr. Orrison ordered, nor his report of the scan
findings were entered into evidence. As noted, Dr. Weaver
provided medical testimony about the magnitude of Smith‘s
injuries and opined on the cause of those injuries. See supra ¶ 121.
But although Dr. Weaver based his conclusions in part on the
report created by Dr. Orrison, he also interpreted Smith‘s imaging
himself;23 conducted his own interview with and physical
examination of Smith; and, coupled with his extensive personal
experience in the field, relied on his knowledge of the events
surrounding Smith‘s alleged carbon monoxide poisoning in
forming his opinion.
¶136 The district court found that because ―[Dr.] Weaver used
the report in forming [his own] opinions regarding [Smith], and
because such evidence is the type that is reasonably relied on by
experts in the field,‖ any potential prejudice to SouthTowne ―was
outweighed by the probative value in assisting the jury to
evaluate the opinions at issue.‖ We review legal standards
applied by the district court for correctness. State v. Bess,
2019 UT 70, ¶ 17, 473 P.3d 157. And here, the district court was
correct in its application of rule 703 to its admissibility
__________________________________________________________
23 Indeed, in its motion for a new trial, SouthTowne argued
that Dr. Weaver lacked sufficient qualifications to opine on
Smith‘s brain imaging. The district court correctly held this
argument specious.
41
SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
determination regarding Dr. Orrison‘s reports and scans.
Accordingly, we affirm the district court‘s evidentiary rulings
with respect to Dr. Orrison.
¶137 In sum, we reverse the underlying bases for the district
court‘s conditional grant of a new trial, and therefore we reverse
the district court‘s conditional new trial order. Further, we affirm
the district court‘s rejection of SouthTowne‘s alternative
arguments for a new trial with respect to Dr. Weaver and Dr.
Orrison‘s scans and opinions. Accordingly, SouthTowne‘s request
that we correct these evidentiary rulings in the event of a new trial
is moot. And as we have explained, those arguments would
nevertheless fail on the merits.
III. RULE 60(B) MOTION
¶138 Finally, Smith argues the district court should have
dismissed SouthTowne‘s motion to set aside the judgment under
rule 60(b) as untimely. We agree.
¶139 On November 21, 2018—fifty-eight days after the district
court entered judgment in favor of Smith—SouthTowne moved
for relief from judgment under rules 60(b)(2) and (6) of the Utah
Rules of Civil Procedure. Rule 60(b) allows a court to ―relieve a
party or its legal representative from a judgment, order, or
proceeding‖ for any of the enumerated reasons listed in
subsections (1) through (5)—including, under subsection (2),
―newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule
59(b)‖—or for ―any other reason that justifies relief‖ as provided
by subsection (6). UTAH R. CIV. P. 60(b).
¶140 A rule 60(b) motion ―must be filed within a reasonable
time,‖ and, if predicated on ―one of the reasons [listed] in
paragraph (b)(1), (2), or (3), not more than 90 days after entry of
the judgment or order . . . .‖ UTAH R. CIV. P. 60(c). Rule 60(b)(2)
contains an additional, internal time limit. Under rule 60(b)(2), a
district court may set aside a judgement based on newly
discovered evidence ―which by due diligence could not have been
discovered in time to move for a new trial under [r]ule 59(b).‖ Id.
60(b)(2) (emphasis added). Thus, while a motion under 60(b)(2)
must be filed ―not more than 90 days after entry of the judgment,‖
id. 60(c), if the evidence could have been discovered in time to
move for a new trial under rule 59(b), the motion is subject to that
rule‘s strict twenty-eight-day time limit. See id. 59(b) (―A motion
for a new trial must be filed no later than 28 days after entry of the
judgment.‖).
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¶141 SouthTowne‘s rule 60(b) motion asserted that two jurors
engaged in misconduct because they allegedly ―concealed
material bias‖ against Volkswagen. While SouthTowne largely
argued its 60(b) motion under subsection (2)‘s ―newly discovered
evidence‖ exception to the strict twenty-eight-day deadline of rule
59, it reasoned that, if the court found that ―the request does not
fall within [r]ule 60(b)(2), then . . . the misconduct would be one of
the ‗unusual and exceptional circumstances‘ justifying relief
under [the catchall provision of] subparagraph (6).‖
¶142 The district court declined to reach the merits of
SouthTowne‘s rule 60(b) motion, concluding that an evidentiary
hearing was necessary to ―resolve . . . competing [juror]
testimony‖ under the McDonough standard,24 but that such a
hearing was unwarranted because the court had already granted
SouthTowne a new trial on other grounds. In reaching this
conclusion, the court excused the untimeliness of SouthTowne‘s
filing date, noting that while the motion might have been
untimely under the rubric of 60(b)(2), ―60(b)(6) is not limited or
otherwise prescribed by the same timeframe,‖ and SouthTowne
had brought the motion pursuant to both subsections.
¶143 But ―[r]ule 60(b)(6) is designed to remedy a judgment
[only] when exceptional circumstances are present.‖ Menzies v.
Galetka, 2006 UT 81, ¶ 77, 150 P.3d 480; see also Kell v. State,
2012 UT 25, ¶ 18, 285 P.3d 1133 (―Subsection (6) [of rule 60(b)],
particularly, should be very cautiously and sparingly invoked by
the [c]ourt only in unusual and exceptional circumstances.‖
(second alteration in original) (citation omitted) (internal
quotation marks omitted)). And ―[a] party may not resort to
subsection (6)‘s catchall provision when the grounds for relief fall
within subsections (1) through (5),‖ Carter v. State, 2015 UT 38,
¶ 17, 345 P.3d 737; see also Laub v. S. Cent. Utah Tel. Ass’n, Inc.,
657 P.2d 1304, 1306–07 (Utah 1982) (holding that the residuary
clause of rule 60(b) may be employed only if the ground asserted
for relief is ―one other than those listed in [the preceding]
__________________________________________________________
24 In State v. Thomas, this court adopted the two-part test
articulated by the United States Supreme Court in McDonough
Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984) to
determine when a juror‘s failure to answer honestly a question on
voir dire entitles the defendant to a new trial. 830 P.2d 243, 245
(Utah 1992).
43
SMITH v. VOLKSWAGEN SOUTHTOWNE, INC.
Opinion of the Court
subdivisions‖). ―Otherwise, a party could use subsection (6) to
circumvent the ninety-day time limitation for filing motions
grounded in the reasons set forth in subsections (1) through (3).‖
Carter, 2015 UT 38, ¶ 17; see also Kanzee v. Kanzee, 668 P.2d 495, 497
(Utah 1983) (holding that, because appellant asserted grounds for
relief that were listed in rule 60(b)(1), the appellant was ―not
entitled to use [the rule‘s residuary clause] to circumvent the
three-month limitation‖).
¶144 Here, the substance of SouthTowne‘s motion, alleging
juror misconduct based on newly discovered evidence, falls
squarely within the ambit of subsection (2). As such, SouthTowne
had to satisfy rule 60(b)(2)‘s timing requirements.
¶145 SouthTowne argues that we should not rule on Smith‘s
challenge to its rule 60(b) motion because the issue is moot, and
―[i]f this court reaches the issue, it should hold that the district
court did not abuse its discretion in concluding that
SouthTowne‘s motion was timely, and remand for an evidentiary
hearing.‖ But the record shows that SouthTowne had notice of the
basis of its allegations before judgment was entered and five
months before it filed its rule 60 motion. While we could remand
to have the district court consider SouthTowne‘s motion under
rule 60(b)(2), for the sake of judicial economy, we use the record
evidence to do so here instead.
¶146 The trial in this case ended on June 20, 2018. One day
later, a juror informed one of SouthTowne‘s paralegals about
concerns of misconduct by another juror. On August 27, 2018—
sixty-eight days after SouthTowne first heard concerns about
potential juror misconduct—the district court entered judgment in
favor of Smith, starting the twenty-eight-day clock for new trial
motions under rule 59. So from the day SouthTowne first had
notice of potential juror misconduct, it had roughly ninety-seven
days to investigate and file a motion under rule 59.25 However,
__________________________________________________________
25 SouthTowne argues that it spent this time attempting to
corroborate the reporting juror‘s statements. But records indicate
that by August 18, 2018, after initial attempts failed, SouthTowne
ceased efforts to contact the rest of the jury panel. And while
SouthTowne finally received corroboration from a second juror on
October 4, 2018, SouthTowne did not follow up with the original,
reporting juror to get her full statement and declaration until
November 14, 2018—a full 40 days later, and nearly five months
(continued . . .)
44
Cite as: 2022 UT 29Opinion of the Court
SouthTowne elected to pursue other avenues of relief from
judgment instead. This was a perfectly legitimate choice. But it is
insufficient to establish that ―by due diligence‖ the evidence of
juror misconduct ―could not have been discovered in time to
move for a new trial under [r]ule 59(b).‖ Accordingly,
SouthTowne did not meet the requirements of rule 60(b)(2) and
was required to raise these allegations by the new trial deadline.
Because it did not do so, its rule 60(b) motion must be dismissed
as untimely.
CONCLUSION
¶147 We reverse the district court‘s grant of judgment as a
matter of law to SouthTowne because the cumulative evidence
adduced at trial was legally sufficient to satisfy the element of
causation. However, we affirm the court‘s rejection of
SouthTowne‘s argument that it was entitled to judgment as a
matter of law because Smith had produced insufficient evidence
of the standard of care.
¶148 We also reverse the court‘s conditional grant of a new
trial to SouthTowne because the court‘s ruling was based on
issues that SouthTowne did not raise in its new trial motion, and
Smith was not given notice and an opportunity to be heard on the
new issues. However, we affirm the court‘s rejection of
SouthTowne‘s argument that it was entitled to a new trial because
of the improper admission of portions of Dr. Weaver‘s testimony
and Dr. Orrison‘s scans and opinions.
¶149 Finally, we conclude that SouthTowne‘s rule 60(b)
motion must be dismissed as untimely.
¶150 Accordingly, we reverse in part, affirm in part, and order
the jury‘s verdict reinstated.
after the juror had initially expressed concern over potential
misconduct.
45