ConocoPhillips Co. v. Utah Department of Transportation ( 2017 )

2017 UT App 68THE UTAH COURT OF APPEALS
CONOCOPHILLIPS COMPANY AND PIONEER PIPE LINE COMPANY,
Appellees,
v.
UTAH DEPARTMENT OF TRANSPORTATION AND AMES
CONSTRUCTION INC.,
Appellants.
Opinion
No. 20160221-CA
Filed April 20, 2017
Second District Court, Farmington Department
The Honorable Thomas L. Kay
No. 120700141
Miles M. Dewhirst, Rick N. Haderlie, and Kyle L.
Shoop, Attorneys for Appellants
Robert E. Mansfield and Steven J. Joffee, Attorneys
for Appellees
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN
concurred.
CHRISTIANSEN, Judge:
¶1 The appellants seek to set aside the district court’s
judgment against them. They contend that, during the jury trial,
the court erred (1) by ruling that portions of a deponent’s
testimony did not qualify as admissible expert testimony
pursuant to Utah Rule of Evidence 702 and (2) by failing to strike
portions of a percipient witness’s testimony that amounted to an
unsolicited expert opinion. We conclude that the district court
properly excluded the relevant portions of the deposition and
that any error in failing to strike the trial testimony was invited;
ConocoPhillips Company v. UDOT
consequently, we affirm. We remand to the district court for the
limited purpose of calculating attorney fees incurred on appeal.
BACKGROUND
¶2 The Utah Department of Transportation (UDOT) hired
Ames Construction Inc. (collectively, Defendants) as the general
contractor for a highway construction project. Completion of the
project required the relocation of several utilities, including a
pipeline owned by ConocoPhillips Company (Conoco). UDOT
therefore entered into written agreements with Conoco under
which Conoco agreed to relocate the relevant section of pipeline
and UDOT agreed to reimburse Conoco for the costs of doing so.
The pipeline relocation was completed in March 2007; the
pipeline was inspected before, during, and after the relocation to
ensure that it was not damaged. Portions of the new pipeline run
parallel to and under the new highway, approximately 28 feet
underground.
¶3 After the relocation was completed, Defendants installed
wick drains in the ground around the highway project. Wick
drains are used to remove excess moisture from the ground in
construction areas. They are essentially ‚pipes‛ driven into the
ground that allow groundwater to seep through semi-permeable
sides and collect inside the drain for removal or evaporation.
During the highway project, Defendants used hundreds of wick
drains driven up to 100 feet underground.
¶4 On April 3, 2007, one of Conoco’s supervisors noticed that
27 to 30 wick drains had been installed within 7 or 8 feet of the
surface markers indicating the pipeline’s underground location.1
1. In their written agreements, UDOT and Conoco had agreed
that a Conoco-appointed inspector would be ‚required to be
onsite during all phases of work impacting the pipeline,‛
including ‚any time work is being done within 25 *feet+ of the
(continued<)
20160221-CA 2 2017 UT App 68ConocoPhillips Company v. UDOT
At least one of the wick drains was within 4 feet of the pipeline
markings. The supervisor halted all work in the area to
investigate whether the wick-drain installation had damaged the
pipeline or the pipeline’s cathodic anti-corrosion coating. See
generally 49 C.F.R. §§ 195.563, 195.571 (2017) (federal regulations
requiring cathodic protection of certain types of underground
pipelines).
¶5 As part of the investigation, Conoco hired Brent Cathey to
conduct a direct-current-voltage-gradient (DCVG) test. DCVG
testing indirectly detects ‚holidays[2] or voids in a pipeline’s
coating‛ by measuring voltage gradients in the soil. Cathey did
not detect any holiday indications at the site.
¶6 Several years later, in 2010, the pipeline was physically
inspected, and damage to its upper portion was found in two
areas. The first was a 0.6-inch-deep dent at the ‚12:15 position.‛
The second was a 1.05-inch-deep dent ‚located at the 11:00
position.‛ The GPS coordinates of the damaged areas were ‚in
very close proximity‛ to where two of the wick drains had been
installed in April 2007.
¶7 Conoco filed this lawsuit against Defendants, alleging
breach of contract and negligence. During the three-day jury
trial, Conoco presented evidence suggesting that the wick-drain
installation caused the dents on the pipeline. Defendants
presented contrary evidence including Cathey’s deposition.3 The
(2017 UT App 68ConocoPhillips Company v. UDOT
parties agree that Cathey’s deposition contained eight
statements relevant here:
(1) that his DCVG test followed standards set by
the National Association of Corrosion Engineers;
(2) that the DCVG test did not detect any holiday
issues in the pipeline’s coating in the area where
the wick drains had been installed;
(3) that ‚improper installation‛ is the primary
cause of holidays;
(4) that third-party damage to a pipeline is ‚very
apparent‛ in contrast to damage caused by
improper installation;
(5) that third-party damage caused by ‚some kind
of mechanical machine [is] normally going to
damage the pipe as well as the coating‛;
(6) that installation of a wick drain ‚would
definitely damage a pipeline if it got broken into
it‛;
(7) that, when he conducted the DCVG test, he did
not believe that the wick drains had hit the
pipeline; and
(8) that no pipeline coating can withstand being hit
by a wick drain.
¶8 Conoco filed a motion in limine, seeking in part to
exclude several of Cathey’s statements on the ground that
admission would violate rule 702 of the Utah Rules of Evidence.
Specifically, Conoco argued that Defendants had ‚failed to
demonstrate and lay foundation establishing that Mr. Cathey is
qualified as an expert to testify about the effects that would
20160221-CA 4 2017 UT App 68ConocoPhillips Company v. UDOT
result from a wick drain hitting the *pipeline+.‛ Conoco further
noted that Cathey had ‚offered no analysis or explanation of
how he reached his purported opinion*s+‛ and asserted that the
statements were too speculative and conclusory to satisfy rule
702. The district court reviewed the deposition and noted that
Conoco’s counsel had objected to the questions that elicited
those statements. The court stated that if the same objections had
been made during trial, it would have sustained them. The
district court admitted Cathey’s deposition statements that
discussed holiday damage to a pipeline due to impacts,
detection of holidays via DCVG testing, and the likelihood of
damage to a pipeline and its coating when a ‚mechanical
machine‛ impacts the pipeline. The court excluded the
statements specific to wick drains, wick-drain installation, and
the potential for holidays when a wick drain strikes a pipeline
during installation.4
4. Cathey’s seventh statement was that, because the results of the
DCVG test did not indicate a holiday and because he did not see
wick drains on the surface near the pipeline’s marked path,
Cathey did not believe the wick drains had hit the pipeline. Our
review of the transcript suggests that the district court neither
discussed this seventh statement nor ruled it inadmissible.
Rather, it appears that the court simply admitted portions of
Cathey’s deposition that discussed DCVG testing and pipeline
damage generally and excluded those specific portions touching
on the possibility of damage due to wick-drain installation. On
appeal, both parties treat the seventh statement as excluded, and
we follow their lead. To the extent that the seventh statement
was based on Cathey’s observation of where the wick drains
were installed, we conclude that such percipient testimony was
outside the province of an expert witness because no specialized
knowledge was necessary. And to the extent that the seventh
statement was based on Cathey’s beliefs regarding the process of
wick-drain installation, our determination that those beliefs were
(continued<)
20160221-CA 5 2017 UT App 68ConocoPhillips Company v. UDOT
¶9 Conoco called a percipient witness, Mike Miller, to testify
about the damage he had seen on the pipeline. Although Miller
was called to testify about his observations of the damage,
Conoco also asked him to describe DCVG testing during direct
examination. Miller explained DCVG testing and then opined,
without prompting, ‚Works pretty good for your typical
pipeline, which is three to six foot deep. It’s . . . a crap shoot on a
thirty foot pipe.‛ Defendants objected, asserting that this
statement amounted to expert testimony and was inadmissible
because Miller had not been called as an expert witness and
therefore Conoco had not presented credentials or otherwise
explained why Miller was qualified as an expert in this field.
¶10 Outside the presence of the jury, the district court heard
argument from the parties about the problematic statement. The
court noted that it considered Miller’s statement to be
inadmissible, but expressed concern that instructing the jury not
to consider the statement would only emphasize it. Defendants
agreed, asking instead for ‚an order from the court that it is not
used in closing arguments.‛ After further discussion, the court
and Conoco agreed to Defendants’ proposed course of action.
¶11 The jury returned a verdict in favor of Conoco, and
Defendants timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶12 Defendants contend that the district court misinterpreted
or misapplied Utah Rule of Evidence 702 when it struck the sixth
and eighth statements from Cathey’s deposition. We review a
district court’s decision to admit or exclude expert witness
testimony for an abuse of discretion and will not reverse that
(2017 UT App 68ConocoPhillips Company v. UDOT
decision unless it exceeds the limits of reasonability. State v.
Shepherd, 2015 UT App 208, ¶ 11, 357 P.3d 598.
¶13 Defendants also contend that ‚the district court erred by
not striking, and not instructing the jury to disregard, an
unsolicited expert opinion [offered by] fact witness Mike Miller.‛
Pursuant to the invited-error doctrine, we generally will not
review a district court’s action when the party now alleging
error in that action led the court to undertake it. See, e.g.,
Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 12, 163 P.3d 615;
Pratt v. Nelson, 2007 UT 41, ¶¶ 17–18, 164 P.3d 366.
ANALYSIS
I. Wick-Drain Testimony
¶14 Defendants first contend that the district court should
have allowed the jury to consider Cathey’s sixth and eighth
deposition statements about wick drains. Cathey had been called
as an expert witness, and because he was not available at trial,
portions of his deposition were read into evidence. Rule 702 of
the Utah Rules of Evidence governs the admissibility of expert
witness testimony:
[A] witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise
if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue.
Utah R. Evid. 702(a). The rule then goes on to describe limits on
the expert knowledge that may serve as a basis for expert
testimony, i.e., the principles or methods underlying it must be
reliable and properly applied to sufficient facts. See id R. 702(b).
Experiential expert testimony, where prior exposure to a similar
20160221-CA 7 2017 UT App 68ConocoPhillips Company v. UDOT
or nearly identical situation provides the knowledge upon which
the testimony is based, is admissible under this rule. See Eskelson
ex rel. Eskelson v. Davis Hospital & Medical Center, 2010 UT 59,
¶ 15, 242 P.3d 762; State v. Shepherd, 2015 UT App 208, ¶ 34, 357
P.3d 598. This court has recently addressed the requirements for
admitting experiential expert testimony:
The trial court could properly admit
the . . . expert’s testimony if the court reasonably
determined (1) that scientific, technical, or other
specialized knowledge would assist the jury to
understand the evidence or determine a fact in
issue; (2) that the witness was qualified as an
expert by knowledge, skill, experience, training, or
education; and (3) that the [proponent] made a
threshold showing that the principles or methods
underlying the testimony were reliable, were based
on sufficient facts or data, and had been reliably
applied to the facts . . . .
Shepherd, 2015 UT App 208, ¶ 31; see also id. ¶ 34.
¶15 On appeal, the parties each assert that Shepherd supports
their preferred outcome: Defendants contend that Cathey’s work
experience qualified him as an expert; Conoco responds that
Cathey’s work experience did not do so with respect to wick
drains and that Defendants and Cathey failed to make the
threshold showing of reliability and sufficiency.
¶16 Shepherd states the uncontroversial proposition that an
individual’s practical experience can substitute for formal
education when determining if the individual is an expert
pursuant to rule 702. See id. ¶ 34. An experiential expert witness
must explain how his or her experience led to the conclusion
reached, why his or her experience was a sufficient basis for that
conclusion, and how his or her experience was reliably applied
to the facts. Id. The question here is whether Cathey’s prior
20160221-CA 8 2017 UT App 68ConocoPhillips Company v. UDOT
experience with coating holidays and his single observation of
wick drains being installed was a sufficient basis for his
conclusions that a wick drain could ‚definitely‛ damage a
pipeline and that no pipeline could withstand a wick-drain
installation hitting it.
¶17 When ruling on the admissibility of Cathey’s deposition
statements, the district court highlighted the lack of connection
between Cathey’s experience of watching wick drains being
placed and his statements that wick-drain installation could
damage a pipeline. Indeed, Cathey admitted that he was ‚not
familiar with [wick-drain installation+ whatsoever‛ and that he
had not previously observed an instance ‚where a pipe was
struck by a wick drain installer.‛ The district court also noted
that Cathey did not know how much power was used to install
wick drains or what effect 28 feet versus 4 feet of dirt may have
had. More importantly, neither Defendants nor Cathey showed
that ‚the principles or methods underlying the testimony,‛ i.e.,
observing the wick-drain installation, ‚were reliable, were based
on sufficient facts or data, and had been reliably applied to the
facts‛ such that Cathey could be properly deemed an
experiential expert witness on this topic. See Shepherd, 2015 UT
App 208, ¶ 31. On appeal, Defendants extensively review
Cathey’s experience with coating holidays and the fact that on
one occasion Cathey watched wick drains being installed. But
this does not address the problem; although Cathey had some
level of familiarity with wick drains, he never explained how
that familiarity led to a conclusion about this particular pipeline
damage. See id. And because he was not available at trial, this
deficiency could not be remedied on the stand. On this record,
we conclude that the district court did not exceed the limits of
reasonability when it determined that Cathey was not qualified
as an experiential expert witness to testify about the potential for
wick-drain installation to damage the pipeline in these
circumstances.
¶18 It is worth noting that the district court ruled Cathey was
qualified as an experiential expert witness on other topics. For
20160221-CA 9 2017 UT App 68ConocoPhillips Company v. UDOT
example, the court ruled admissible Cathey’s statements that
damage to a pipeline would also damage the anti-corrosion
coating, because the court determined Cathey had sufficient
‚experience in seeing third party damage to a pipeline.‛ Thus,
the statements concerning the general cause of holidays were
admissible, including the fifth statement—that damage caused
by ‚some kind of mechanical machine [is] normally going to
damage the pipe as well as the coating.‛ The court’s ruling
therefore properly (1) allowed the jury to hear that items striking
the pipeline, particularly those driven by machinery, were likely
to cause damage to the anti-corrosion coating while
(2) excluding any possible suggestion from Cathey’s deposition,
based on his alleged expertise, that wick-drain installation posed
a different or greater danger.
II. Improper Expert Opinion
¶19 Defendants next contend that ‚the district court erred by
not striking, and not instructing the jury to disregard, an
unsolicited expert opinion [offered by+ fact witness Mike Miller.‛
Conoco responds that Defendants invited any error when they
waived the giving of a curative instruction by agreeing with the
district court that ordering the parties not to refer to the
objectionable testimony during closing arguments was a
sufficient remedy.
¶20 The invited-error doctrine precludes a party from taking
advantage of an error committed at trial when that party led the
trial court into committing the error. See Cea v. Hoffman, 2012 UT
App 101, ¶ 13, 276 P.3d 1178. The invited-error doctrine ‚is
crafted to discourage parties from intentionally misleading the
trial court so as to preserve a hidden ground for reversal on
appeal, as well as to give the trial court the first opportunity to
address the claim of error.‛ Id. ¶ 13 (citation and internal
quotation marks omitted). An affirmative representation that a
party has no further objection to the proceedings falls within the
ambit of the invited-error doctrine ‚because such representations
reassure the trial court and encourage it to proceed‛ without
20160221-CA 10 2017 UT App 68ConocoPhillips Company v. UDOT
further consideration of alternative or additional remedial
measures. See id. (citation and internal quotation marks omitted).
¶21 Here, Miller was asked to describe DCVG testing and did
so. But Miller continued by expressing doubt about the efficacy
of DCVG testing on this pipeline: ‚Works pretty good for your
typical pipeline, which is three to six foot deep. It’s . . . a crap
shoot on a thirty foot pipe.‛
¶22 Defendants objected and, outside the presence of the jury,
‚move*d+ to strike the opinion of this witness about
the . . . effectiveness of the DCVG test.‛ Defendants also noted
that Miller had not been designated as an expert pursuant to rule
702. In essence, Defendants initially appeared to raise two
challenges: first, that Miller should not have been allowed to
describe DCVG testing and second, that Miller should not have
been allowed to opine on the efficacy of DCVG testing on thirty-
foot deep pipelines. However, after the court expressed
confusion, Defendants clarified that they ‚only objected when he
said about the validity of [DCVG testing] at 28 to 30 feet‛
because Miller was ‚commenting, giving expert opinion, really
attacking another expert’s opinion when he doesn’t have his
own expert opinion.‛
¶23 The court agreed that Miller’s statement regarding the
DCVG testing at thirty feet was inadmissible but worried that,
‚if I do what you say, I’m going to say, okay, ladies and
gentlemen, I want you to strike from your memory the
testimony of Mr. Miller regarding the usefulness of the DCVG at
28 feet. And so I’m just going to emphasize the issue.‛ After
further discussion, the district court repeated its concern and
Defendants interrupted to propose a solution:
THE COURT: [I]f you want me to—if you want me
to right now say, jury, forget what he said about
this, then I’m emphasizing it. I don’t know what—
if that’s what you want me to do—
20160221-CA 11 2017 UT App 68ConocoPhillips Company v. UDOT
[Defendants’ counsel]: I agree, your Honor, and I
don’t think that’s appropriate, but I would say I
would like an order from the Court that it is not
used in closing arguments: Remember when Mr.
Miller said at 28, it’s a crap shoot.
¶24 The parties and the court then discussed the scope of the
proposed order, including if Miller could testify regarding
whether he would have used DCVG testing on a pipeline buried
28 to 30 feet deep and whether Miller ‚considered *DCVG
testing+ to be, in essence, conclusive *as to+ if there was or wasn’t
damage to the pipeline.‛ The district court eventually ruled that
Miller would not be allowed to opine on those issues by cutting
off further examination of Miller regarding DCVG testing: ‚I’m
going to say what he’s testified, he’s testified, and that’s where
I’m going to leave it. I’m not going to—let it be your next
question. I think he’s already said what he’s said.‛ Conoco then
agreed to drop the DCVG line of questioning. Defendants’
counsel responded, somewhat cryptically, ‚I agree, I think that
solves *the+ problem.‛
¶25 We recognize that it is not clear to which ‚problem‛
Defendants’ counsel was referring. For the purposes of our
analysis, we assume that Defendants were agreeing that
Conoco’s abandonment of the DCVG line of questioning would
solve the problem of whether Miller could testify about his use
of DCVG testing and his opinion of the conclusiveness of its
results. Consequently, unlike Conoco, we do not assume that
this agreement constituted Defendants’ acquiescence to the
court’s adoption of Defendants’ proposed solution regarding
Miller’s opinion that DCVG testing was ineffective at depths of
30 feet.
¶26 We nevertheless conclude that Defendants had already
invited any error by waiving the giving of a curative instruction.
The district court began by agreeing with Defendants that
Miller’s opinion that DCVG testing was ‚a crap shoot on a thirty
foot [deep] pipe‛ was inadmissible. The court then discussed the
20160221-CA 12 2017 UT App 68ConocoPhillips Company v. UDOT
viability of remedying the situation with a curative instruction
but noted that this risked highlighting the problematic statement
in the jury’s eyes. Defendants’ counsel responded, ‚I agree, your
Honor, and I don’t think that’s appropriate*.+‛ By doing so,
Defendants affirmatively represented to the court that they no
longer sought a curative instruction but would prefer instead to
have the order. See State v. McNeil, 2013 UT App 134, ¶ 23 & n.3,
302 P.3d 844 (‚A claim is not preserved for appeal if a party
initially objects but later, while ‘the wheel’s still in spin,’
abandons the objection and stipulates to the court’s intended
action.‛ (Quoting Bob Dylan, The Times They Are A–Changin’
(Columbia Records, 1964)), aff’d, 2016 UT 3, 365 P.3d 699); see also
Andersen v. Andersen, 2016 UT App 182, ¶ 27, 379 P.3d 933; In re
Estate of Anderson, 2016 UT App 179, ¶ 9, 381 P.3d 1179. This
statement, in conjunction with Defendants’ counsel’s
simultaneous proposal of an alternative remedy that did not
involve a curative instruction, constituted a waiver. Because
Defendants, through counsel, waived the giving of a curative
instruction, they invited the court to take the action they now
claim was error. The invited-error doctrine therefore forecloses
an appeal predicated on this alleged error.5
5. Defendants assert that we may review this issue for plain
error. See, e.g., State v. Waterfield, 2014 UT App 67, ¶ 18, 322 P.3d
1194 (‚The plain error standard of review requires an appellant
to show the existence of a harmful error that should have been
obvious to the district court.‛). They identify the admission of
Miller’s statement as the ‚harmful error.‛ However, on appeal,
the issue is whether the court’s remedy was appropriate, not
whether the admission of the underlying statement was
erroneous. And, in any event, because Defendants invited any
error in selecting a remedy, they cannot assert the plain-error
doctrine as a means to escape the consequences of that
invitation. See State v. Brooks, 2012 UT App 34, ¶ 14, 271 P.3d 831(‚*R+eview under the plain error doctrine is not available when
counsel invites the error by affirmatively representing to the
(continued<)
20160221-CA 13 2017 UT App 68ConocoPhillips Company v. UDOT
¶27 Defendants also argue that rule 103(d) of the Utah Rules
of Evidence required the district court to issue a curative
instruction. See Utah R. Evid. 103(d) (‚To the extent practicable,
the court must conduct a jury trial so that inadmissible evidence
is not suggested to the jury by any means.‛). In Defendants’
words:
Rule 103(d) provides a procedural imperative that
once a court determines evidence to be
inadmissible, then ‘by any means’ it must conduct
the trial so that the inadmissible testimony is not
suggested to or heard by the jury. [A] curative
instruction would have done so with the jury. . . .
. . . . Once the Court determined that Mr. Miller’s
opinion was inadmissible, it should have complied
with [rule 103(d)] by striking the opinion and
issuing a curative instruction, irrespective of any
input from counsel.
¶28 Thus, in Defendants’ view, the parties’ agreement as to
the best remedial measure was immaterial, and the court should
have overridden Defendants’ own proposed course of action.
The problems with such an interpretation of rule 103(d) are
legion; however, for the purposes of this case, we need only note
that Defendants did not raise this argument in their opening
brief. Instead, it is raised in their reply brief. ‚Reply briefs shall
be limited to answering any new matter set forth in the opposing
brief.‛ See Utah R. App. P. 24(c) (emphasis added). Because this
is a fresh argument for reversal, it was improper to raise it only
(791 P.2d 155, 158 (Utah 1989) (stating that, ‚if
a party through counsel . . . has led the trial court into error, we
will then decline to save that party from the error‛).
20160221-CA 14 2017 UT App 68ConocoPhillips Company v. UDOT
in the reply brief. See id.; Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d
903. We consequently reject it.
III. Cumulative Error
¶29 Defendants also seek relief pursuant to the cumulative-
error doctrine. This argument is inadequately briefed, being
confined to a single conclusory sentence in Defendants’ opening
brief. Defendants then improperly place the discussion and
analysis of the cumulative-error doctrine in their reply brief. See
Utah R. App. P. 24(c); Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903.
We therefore reject it. But even if we were to consider the
additional arguments improperly made in Defendants’ reply
brief, we would nevertheless conclude that the cumulative-error
doctrine is inapplicable here.
¶30 The cumulative-error doctrine requires us to reverse if
(1) we determine, or assume without deciding, that two or more
errors occurred and (2) we determine that the cumulative effect
of those errors undermines our confidence that a fair trial was
had. See, e.g., State v. McNeil, 2013 UT App 134, ¶¶ 16, 70, 302
P.3d 844, aff’d, 2016 UT 3, 365 P.3d 699. Our confidence is more
likely to be shaken when the errors work together in a pernicious
manner so as to cause more prejudice than the mere sum of the
individual errors. Cf. State v. Wright, 2013 UT App 142, ¶ 45, 304
P.3d 887 (cumulating two errors and determining that they
‚d*id+ not take on significance when considered together‛ and
were ‚relatively minor in the context of the trial as a whole.‛)
¶31 The gist of Defendants’ contention is that the two alleged
errors reinforced one another. Specifically, Defendants argue
that the exclusion of Cathey’s expert opinion and the inclusion of
Miller’s speculative opinion couched in expert terms worked
together to misinform the jury. However, we have determined
that the district court’s decision to exclude portions of Cathey’s
expert opinion was not erroneous, because the decision did not
exceed the limits of reasonability. See supra ¶ 17. And we
determined that Defendants invited any error in the district
20160221-CA 15 2017 UT App 68ConocoPhillips Company v. UDOT
court’s failure to give the jury a curative instruction. See supra
¶ 26. Even assuming, without deciding, the dubious proposition
that an invited error should be considered in the cumulative-
error analysis, there would still be only a single error in this case.
Because the cumulative-error doctrine does not apply when
there is only one error demonstrated or assumed on appeal, the
doctrine would have no application here. See, e.g., McNeil, 2013
UT App 134, ¶¶ 16, 70–71.
CONCLUSION
¶32 The district court’s decision to exclude the wick-drain
installation portions of Cathey’s deposition did not exceed the
limits of reasonability and was therefore proper. Defendants’
waiver of a curative instruction invited any error in the district
court’s failure to instruct the jury to disregard certain improper
testimony. Finally, the cumulative-error doctrine has no
application when only a single error has been determined or
assumed on appeal.
¶33 Affirmed.6
6. The written agreements between UDOT and Conoco stated
that ‚*t+he prevailing party in any litigation arising hereunder
shall be entitled to its reasonable attorney fees and court costs,
including fees and costs incurred through any applicable appeal
process.‛ We therefore award Conoco its attorney fees
reasonably incurred on appeal and remand to the district court
for the limited purpose of calculating the amount of those fees.
20160221-CA 16 2017 UT App 68