Solis v. Burningham Enterprises Inc. ( 2015 )

2015 UT App 11_________________________________________________________
THE UTAH COURT OF APPEALS
KRIS SOLIS,
Plaintiff and Appellant,
v.
BURNINGHAM ENTERPRISES INC. AND RAYMOND ALAN DAVIS,
Defendants and Appellees.
Opinion
No. 20130649-CA
Filed January 15, 2015
Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 110402754
Allen K. Young, Tyler S. Young, and Jonah Orlofsky,
Attorneys for Appellant
Nathan S. Morris and Zachary E. Peterson, Attorneys
for Appellees
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
JAMES Z. DAVIS and JOHN A. PEARCE concurred.
TOOMEY, Judge:
¶1 Kris Solis appeals from a jury verdict in favor of
Burningham Enterprises Inc. and Raymond Alan Davis
(collectively, Defendants). Solis argues the trial court exceeded
its discretion in ruling that she failed to disclose an expert
witness and, on this basis, excluded the expert’s testimony.
Additionally, Solis argues the trial court exceeded its discretion
by refusing to extend the disclosure deadlines. We affirm.
Solis v. Burningham Enterprises
BACKGROUND1
¶2 On August 31, 2010, Solis’s husband, Daniel, was driving
in the passing lane, lane one, on northbound I-15 through a
construction zone. As another driver, Nancy Thacker, merged
onto the interstate in lane four, Davis, an employee of
Burningham Enterprises, was driving the company’s semi-truck
in lane three. When Thacker attempted to change lanes into lane
three, her vehicle collided with the semi-truck and slid across the
interstate into lane one, striking Daniel’s vehicle. Daniel died as
a result of the crash.
¶3 In September 2011, Solis sued Defendants for negligence,
gross negligence, and reckless indifference.2 In her initial
disclosures, Solis listed as fact witnesses Officer James Wright
and other Utah Highway Patrol (UHP) officers who responded
to the scene of the accident. Solis later designated several expert
witnesses, including an accident reconstructionist, but did not
designate any UHP officers as potential expert witnesses.
¶4 During the deposition of UHP Officer Matthew Urban,
Solis asked him to outline his expertise and experience in
accident reconstruction. She also asked him to explain his work
on a UHP accident reconstruction diagram of the accident.
Urban indicated that based on his observations at the scene and
his work on the diagram, he believed the Burningham truck left
a 248-foot skid mark on the pavement of the interstate.
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict.” Smith v. Fairfax Realty, Inc.,
2003 UT 41, ¶ 3, 82 P.3d 1064 (citation and internal quotation
marks omitted).
2. Because Solis ultimately reached a settlement with Thacker,
Thacker was not a party to this litigation.
20130649-CA 2 2015 UT App 11Solis v. Burningham Enterprises
¶5 Defendants filed a motion to exclude Urban’s opinion that
the Burningham truck left the skid mark; they urged the trial
court to exclude the opinion because Solis failed to designate
Urban as an expert witness. Defendants also filed a second
motion to exclude the testimony of Solis’s accident
reconstructionist, Scott Anderson, arguing that Anderson’s
opinions relied exclusively on Urban’s conclusions regarding the
origin of the skid mark.
¶6 In opposing Defendants’ motions, Solis claimed she did
disclose that she would rely on Urban as an expert witness. As
evidence of this, Solis pointed to her initial disclosures indicating
that Wright and other UHP officers involved in reconstructing
the accident were likely to have discoverable information
supporting her claims:
Officers/staff and/or agents of the Utah Highway
Patrol. Any and all officers/staff or agents at the
scene of the incident and/or involved with the
investigation of the incident, reconstruction of the
incident, photos of the incident, written reports
and/or witness statements taken. Testimony is
anticipated to be facts and information about the
incident.
In addition, Solis pointed to her disclosure of the “Utah
Highway Patrol Accident Reconstruction” as a document that
would support her claims. But Solis also asserted that Urban
would offer only his factual observations of his investigation and
although Urban would testify that the skid mark came from the
Burningham truck, he would not opine as to the speed of the
truck.
¶7 After hearing arguments on the motions, the trial court
granted Defendants’ motion to exclude Urban’s opinion
testimony, reasoning that Utah law has “drawn a bright line that
you have to designate witnesses to be expert witnesses.” Because
“there was not a designation,” the trial court ruled Urban could
20130649-CA 3 2015 UT App 11Solis v. Burningham Enterprises
not testify as an expert witness. As to Defendants’ second
motion, the trial court determined that because Anderson’s
opinions were premised on an independent conclusion that the
skid mark was attributable to the Burningham truck, Anderson
was allowed to offer his opinions regarding the origin of the skid
mark and the speeds of the vehicles at the time of the accident.
But Anderson was not permitted to “disclose to the jury any
opinions of Officer Urban or any other undisclosed expert at
trial.” Likewise, the trial court ruled that the UHP diagram could
be offered as evidence but the court excluded references on the
diagram to Urban’s opinions. As a result, all information
attributing the 248-foot skid mark to the Burningham truck was
redacted from the diagram received at trial.
¶8 A jury trial was held in May 2013. Solis argued to the jury
that before the accident, Davis was driving the Burningham
truck in excess of the fifty-five miles-per-hour speed limit. Solis
theorized that when Thacker’s vehicle pulled in front of the
truck, Davis hit the brakes, leaving the 248-foot skid mark. Had
Davis been driving the speed limit, Solis argued, the
Burningham truck would have been able to slow down enough
to avoid making contact with Thacker’s vehicle. In support of
this theory, Solis presented testimony from Davis, Wright, and
other drivers who witnessed the accident. Solis also called
Urban, who testified about his investigation and contributions to
the diagram without referencing his opinion on the question of
which vehicle made the 248-foot skid mark. Solis then elicited
expert testimony from Anderson, who testified that the
Burningham truck left the skid mark, which showed Davis was
speeding before the truck struck Thacker’s vehicle.
¶9 In their defense, Defendants argued that Davis drove at a
reasonable speed under the circumstances and that the accident
would not have happened if Thacker had stayed in lane four.
Defendants claimed the evidence did not support a finding that
the 248-foot skid mark came from the Burningham truck or a
conclusion that it was speeding at seventy miles per hour before
the collision. Defendants also offered expert testimony from two
20130649-CA 4 2015 UT App 11Solis v. Burningham Enterprises
accident-reconstruction experts to support their interpretation of
the evidence. Both defense experts testified that the Burningham
truck did not leave the skid mark, but one also testified that
Thacker caused the accident by making an improper lane
change.
¶10 The jury found in favor of Defendants. The special verdict
form asked the jury, “Were Defendants . . . at fault?” The jury
answered, “No.” The trial court therefore entered judgment
against Solis. Solis appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 Solis first argues the trial court exceeded its discretion in
ruling that she failed to disclose Urban as an expert witness.
Solis further contends that even if she should have designated
Urban as an expert witness, the trial court should have admitted
Urban’s testimony and the unredacted diagram. We review the
trial court’s interpretation of a rule of civil procedure for
correctness. Pete v. Youngblood, 2006 UT App 303, ¶ 7, 141 P.3d
629. “We review the trial court’s . . . exclusion of testimony . . .
for an abuse of discretion.” Id.¶12 Second, Solis argues the trial court exceeded its discretion
in refusing to extend the discovery deadlines. “Trial courts have
broad discretion in managing the cases before them and we will
not interfere with their decisions absent an abuse of discretion.”
Townhomes at Pointe Meadows Owners Ass’n v. Pointe Meadows
Townhomes, LLC, 2014 UT App 52, ¶ 9, 329 P.3d 815 (citation and
internal quotation marks omitted). “When reviewing a district
court’s exercise of discretion, we will reverse only if there is no
reasonable basis for the district court’s decision.” Id.20130649-CA 5 2015 UT App 11Solis v. Burningham Enterprises
ANALYSIS
I. Expert Witness Disclosure
A. Failure to Disclose Urban as an Expert Witness
¶13 Solis challenges the trial court’s conclusion that she did
not timely disclose her intent to rely on Urban as an expert
witness. In doing so, Solis acknowledges “there was no specific
expert disclosure” but contends she nevertheless complied with
the disclosure requirements because “the substance of Officer
Urban’s opinion was fully disclosed.”
¶14 The applicable version of rule 26 of the Utah Rules of
Civil Procedure3 sets forth requirements for the disclosures to be
made during the course of discovery. Subsection (a)(1) requires
disclosure of “the name and, if known, the address and
telephone number of each individual likely to have discoverable
information supporting *a party’s+ claims or defenses.” Utah R.
Civ. P. 26(a)(1) (2011). Subsection (a)(3) requires disclosure of
expert testimony, and provides, “A party shall disclose to other
parties the identity of any person who may be used at trial to
present evidence under Rules 702, 703, or 705 of the Utah Rules
3. The Utah Rules of Civil Procedure were amended in 2011, but
the amendments are applicable only to cases filed on or after
November 1, 2011. See Utah R. Civ. P. 1 advisory committee note
(“Due to the significant changes in the discovery rules, the
Supreme Court order adopting the 2011 amendments makes
them effective only as to cases filed on or after the effective date,
November 1, 2011, unless otherwise agreed to by the parties or
ordered by the court.”). Because this action was filed on
September 28, 2011, the amendments do not apply to this case.
Accordingly, we refer to the pre-amendment version of the rules
throughout this decision.
20130649-CA 6 2015 UT App 11Solis v. Burningham Enterprises
of Evidence.” Id. R. 26(a)(3)(A).4 Accordingly, “[a] party must
disclose to an opposing party the identity of any witness who
may testify as an expert at trial.”5 Brussow v. Webster, 2011 UT
App 193, ¶ 3, 258 P.3d 615.
¶15 In Pete v. Youngblood, 2006 UT App 303, 141 P.3d 629, this
court considered whether a party could rely on expert testimony
from a witness who was disclosed only as a fact witness. Id.¶¶ 11–18. A plaintiff in a medical malpractice action designated
several treating physicians as fact witnesses but did not
designate any expert witnesses before the discovery cut-off
deadline. Id. ¶ 5. The defendant later moved for summary
judgment based on the plaintiff’s failure to establish a prima
facie case because she had not designated an expert to opine on
the relevant standard of care and breach of that standard. Id. ¶ 6.
In response, the plaintiff offered an affidavit from one of her
treating physicians addressing the standard of care and breach
issues. Id. But because the plaintiff did not designate the treating
physician as an expert, the trial court struck the affidavit and
granted summary judgment. Id. On appeal, the plaintiff argued
she had substantially complied with rule 26 by identifying the
treating physician as a fact witness and by providing the
defendant with copies of the medical records. Id. ¶ 10. This court
rejected the plaintiff’s argument and held that she “was required
under rule 26(a)(3)(A) . . . to identify [the treating physician] as a
person who may be used at trial to present expert testimony.” Id.
4. Rules 702, 703, and 705 of the Utah Rules of Evidence govern
the admission of expert witness testimony, that is, the testimony
of witnesses who are qualified to offer opinions based on
scientific, technical, or other specialized knowledge. Utah R.
Evid. 702; id. R. 703; id. R. 705.
5. This court recently summarized these rules governing the
disclosure of witnesses in Hansen v. Harper Excavating, Inc., 2014
UT App 180, ¶ 16, 332 P.3d 969.
20130649-CA 7 2015 UT App 11Solis v. Burningham Enterprises
¶ 15. Furthermore, the Pete court concluded that the “trial court
did not abuse its broad discretion by striking [the treating
physician’s+ affidavit.” Id. ¶ 18.
¶16 Since Pete, this court has consistently held that disclosing
a treating physician as a fact witness does not satisfy the
requirements of rule 26(a)(3)(A). See, e.g., Hansen v. Harper
Excavating, Inc., 2014 UT App 180, ¶ 17, 332 P.3d 969 (“Hansen’s
disclosure of his intent to call treating physicians as fact
witnesses is not sufficient to allow the admission of their expert
opinions.”); Ladd v. Bowers Trucking, Inc., 2011 UT App 355, ¶ 13,
264 P.3d 752 (“*I+n order for any of Ladd’s treating physicians to
offer [expert] testimony as to causation, Ladd was required to
designate them as expert witnesses.”). This court reached the
same conclusion in a different context in Warenski v. Advanced RV
Supply, 2011 UT App 197, 257 P.3d 1096. The plaintiff in Warenski
designated a fact witness and then sought to rely on that same
witness’s expert opinion regarding the installation of a part on
an all-terrain vehicle. Id. ¶¶ 2, 8. In affirming summary judgment
against the plaintiff, the Warenski court explained that if the
plaintiff wished to rely on that witness’s expert opinion, he was
“required to take the necessary steps to properly designate [the
witness+ as an expert witness.” Id. ¶ 9.
¶17 Here, Solis does not dispute that she failed to designate
Urban as an expert witness. As a consequence of this failure, the
trial court correctly determined that she did not comply with
rule 26(a)(3)(A). Notwithstanding this, Solis asserts that her
initial disclosures informed Defendants that she “intended to
present at trial the facts concerning the Highway Patrol’s
accident reconstruction” and “*i+f that accident reconstruction
contained any opinions, . . . that [Solis] intended to rely on those
opinions.” (Emphasis omitted.) But even if Urban was arguably
disclosed as one of the officers or agents of UHP “involved with
the investigation of the incident [and] reconstruction of the
incident,” those UHP officers were disclosed only as witnesses
likely to provide “facts and information about the incident.”
Solis’s initial disclosures did not describe these UHP officers as
20130649-CA 8 2015 UT App 11Solis v. Burningham Enterprises
witnesses who may be used at trial to present evidence involving
scientific, technical, or other specialized knowledge. See Utah R.
Civ. P. 26(a)(3)(A) (2011); see also Utah R. Evid. 702(a) (providing
that qualified experts “may testify in the form of an opinion . . . 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”).
¶18 Solis also claims that because her initial disclosures
included the UHP diagram, Defendants were notified of her
intent to rely on Urban’s opinions contained therein. Notations
on the diagram indicate it was drawn by “M. Urban.” But similar
to Pete, where the plaintiff disclosed her treating physician as a
fact witness and delivered the medical records from that treating
physician to the defendant, 2006 UT App 303, ¶ 16, Solis’s
disclosure of the UHP diagram does not satisfy her obligation
under rule 26(a)(3)(A) to “identi*fy+ . . . any witness who may
testify as an expert at trial,” Brussow, 2011 UT App 193, ¶ 3.
¶19 Finally, Solis contends the advisory committee notes to
the current version of rule 26 support her substance-over-form
argument. Solis relies on the language stating that rule 26(a) is
“not intended to elevate form over substance.” See Utah R. Civ.
P. 26 advisory committee notes (2014). Even if we were to
consider these notes in applying the prior version of rule 26 to
this case, see supra note 3, the advisory committee notes also state
that “all that *the disclosure rules+ require is that a party fairly
inform its opponent that opinion testimony may be offered from
a particular witness.” Utah R. Civ. P. 26 advisory committee
notes (2014). By disclosing UHP officers as fact witnesses and by
omitting Urban from her expert witness list, the substance of
Solis’s disclosures did not “fairly inform *Defendants+ that
opinion testimony may be offered from *Urban+.” See id. We
therefore affirm the trial court’s determination that Solis did not
comply with rule 26(a)(3)(A) with respect to Urban when she
failed to designate him as an expert witness.
20130649-CA 9 2015 UT App 11Solis v. Burningham Enterprises
B. The Exclusion of Urban’s Expert Testimony
¶20 Solis contends that despite her failure to designate Urban
as an expert witness, the trial court exceeded its discretion in
excluding his testimony6 and the unredacted diagram.7
Specifically, Solis argues that her failure to disclose was harmless
and should be excused because Urban’s opinion was explored
during his deposition, where Defendants cross-examined him.
Defendants counter that Solis’s failure was harmful because had
they known Solis would later rely on Urban’s expert opinion,
they would have asked Urban more questions about his
qualifications and the basis of his opinion during the deposition.
¶21 Rule 37(f) instructs that “*i+f a party fails to disclose a
witness, document or other material as required by Rule 26(a) or
Rule 26(e)(1),” “that party shall not be permitted to use the
witness, document or other material at any hearing unless the
failure to disclose is harmless or the party shows good cause for
the failure to disclose.” Utah R. Civ. P. 37(f) (2011) (emphasis
6. Solis also argues she was prejudiced because the jury would
have given Urban’s testimony more weight as he was a
“neutral,” non-retained expert. Because we determine that the
trial court did not err, we need not address this argument.
7. Defendants also raise a counter-argument on appeal that the
entire diagram was inadmissible under Utah Code section 41-6a-
404. See Utah Code Ann. § 41-6a-404(4)(a) (LexisNexis 2010)
(“*A+ccident reports . . . may not be used as evidence in any civil
or criminal trial arising out of an accident.”). Because Defendants
have not demonstrated they raised this argument before the trial
court or filed a cross-appeal from the trial court’s decision to
admit the redacted diagram, we do not consider this argument.
See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801;
Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 49, 70
P.3d 904.
20130649-CA 10 2015 UT App 11Solis v. Burningham Enterprises
added).8 Additionally, “the court on motion may take any action
authorized by Subdivision (b)(2),” including prohibiting a party
from introducing designated matters into evidence. Id. R. 37(f),
(b)(2). Thus, “Utah law mandates that a trial court exclude an
expert witness . . . disclosed after expiration of the established
deadline unless the district court, in its discretion, determines
that good cause excuses tardiness or that the failure to disclose
was harmless.” Townhomes at Pointe Meadows Owners Ass’n v.
Pointe Meadows Townhomes, LLC, 2014 UT App 52, ¶ 13, 329 P.3d
815 (citation and internal quotation marks omitted); see also Dahl
v. Harrison, 2011 UT App 389, ¶ 22, 265 P.3d 139 (“*T+he sanction
of exclusion is automatic and mandatory unless the sanctioned
party can show that the violation of rule 26(a) was either
justified or harmless.”).9
¶22 The trial court in this case followed rule 37(f) in ruling
that because she failed to disclose Urban as an expert, Solis
would not be permitted at trial to introduce Urban’s expert
8. Rule 26(e)(1) requires a party to supplement disclosures “if the
party learns that in some material respect the information
disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to
the other parties during the discovery process or in writing.”
Utah R. Civ. P. 26(e)(1) (2011). Therefore, even if Solis did not
know at the time of her expert witness disclosures that she
wanted to rely on Urban’s expert opinion, she had a duty to
supplement once she realized she would seek to use Urban as an
expert witness at trial.
9. This court has recently disavowed any implication from prior
case law that the trial court must make a finding of willfulness
before it strikes an untimely expert report. See R.O.A. Gen., Inc. v.
Dai, 2014 UT App 124, ¶ 11 & n.5, 327 P.3d 1233; see also Callister
v. Snowbird Corp., 2014 UT App 243, ¶ 29 n.8, 337 P.3d 1044(same).
20130649-CA 11 2015 UT App 11Solis v. Burningham Enterprises
opinion or any document disclosing his opinion. The trial court
did not, however, analyze on the record whether Solis showed
good cause for her failure to designate Urban as an expert
witness or whether Solis’s failure was harmless.
¶23 On appeal, Solis asserts the trial court should have
deemed her failure harmless because Defendants effectively
cross-examined Urban during his deposition and therefore had
notice of his opinion and Solis’s intent to rely on it. But this court
has previously stated,
“Formal disclosure of experts is not pointless.
Knowing the identity of the opponent’s expert
witnesses allows a party to properly prepare for
trial. . . . The failure to disclose experts prejudic[es
a defendant] because there are countermeasures
that could . . . be[] taken that are not applicable to
fact witnesses, such as attempting to disqualify the
expert testimony . . . , retaining rebuttal experts,
and holding additional depositions to retrieve the
information not available because of the absence of
a report.”
Pete v. Youngblood, 2006 UT App 303, ¶ 17, 141 P.3d 629 (first and
third omission in original) (emphasis omitted) (quoting Musser v.
Gentiva Health Servs., 356 F.3d 751, 757–58 (7th Cir. 2004)).
¶24 Because rule 26(a)(3)(A) entitled Defendants to notice of
Solis’s intent to call Urban to offer an expert opinion regarding
which vehicle left the skid mark on the interstate, we are not
persuaded the trial court exceeded its discretion by declining to
find Solis’s failure harmless. In light of this court’s recognition
that the “manner in which discovery is conducted concerning a
fact witness and an expert is quite different,” id., Defendants’
cross-examination of Urban during his deposition does not
necessarily render harmless Solis’s failure to designate him as an
expert. At oral argument, Defendants’ counsel explained they
would have explored Urban’s credentials as an expert and the
20130649-CA 12 2015 UT App 11Solis v. Burningham Enterprises
foundation for his opinion. Additionally, Defendants would
have taken the depositions of two other officers on whom Urban
relied in forming his opinion. We therefore cannot say the trial
court exceeded its authority in concluding that Solis’s failure to
designate was not harmless and in excluding all forms of
Urban’s expert opinion.10
II. Request for Deadline Extension
¶25 Last, Solis argues the trial court should have granted her
request to extend the discovery deadlines so she could amend
her expert designation list to include Urban. In general, “*t+rial
courts have broad discretion in managing the cases assigned to
their courts.” Posner v. Equity Title Ins. Agency, Inc., 2009 UT App
347, ¶ 23, 222 P.3d 775 (alteration in original) (citation and
internal quotation marks omitted). We therefore do not disturb
their decisions absent an abuse of discretion. Callister v. Snowbird
Corp., 2014 UT App 243, ¶ 9, 337 P.3d 1044.
¶26 This court considered whether a trial court exceeded its
discretion in denying a plaintiff’s motion to extend the deadline
for disclosing expert witnesses in Townhomes at Pointe Meadows
Owners Ass’n v. Pointe Meadows Townhomes, LLC, 2014 UT App
52, 329 P.3d 815. In that case, the defendants filed a motion for
10. Solis also argues that the UHP diagram should have been
admitted because it was admissible as a public record under rule
803(8) of the Utah Rules of Evidence. But Solis does not identify
any authority for the proposition that admissible evidence under
rule 803(8) is somehow exempt from the consequences of a
failure to disclose. We therefore do not consider this argument
further. See Utah R. App. P. 24(a)(9) (requiring briefs to contain
reasoned analysis based on relevant legal authority); see also
Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (refusing to “assume
an appellant’s burden of argument and research” (citation and
internal quotation marks omitted)).
20130649-CA 13 2015 UT App 11Solis v. Burningham Enterprises
summary judgment, arguing that expert testimony was required
for the plaintiff to establish its claims. Id. ¶ 6. In response, the
plaintiff moved to extend the discovery deadlines and provided
an expert affidavit with a preliminary report. Id. ¶ 7. The trial
court denied the plaintiff’s motion, struck the affidavit and
report, and granted summary judgment. Id. ¶ 8. In denying the
motion to extend the expert disclosure deadline, the trial court
rejected the plaintiff’s claim that it had reasonably relied on a
stipulation to extend the disclosure deadlines because the
stipulation existed with some of the defendants while the
plaintiff had no such agreement with other defendants. Id. ¶ 10.
The trial court also found that the plaintiff had procrastinated.
Id. ¶ 11. On appeal, this court ruled that the trial court did not
abuse its discretion, based on the plaintiff’s pattern of delay and
its failure to demonstrate a reasonable justification for its
noncompliance with the case management order. Id. ¶ 12.
¶27 Here, the trial court determined that Solis failed to
designate Urban as an expert witness as required by rule
26(a)(3)(A) and did not extend the discovery deadlines for Solis
to amend her rule 26 disclosures. In her opening brief, Solis
asserts that despite the notation on the UHP diagram that Urban
was the person who drew it, she did not learn until Wright’s
deposition that Urban was the person most knowledgeable
about the diagram. Solis asserts that this revelation later led her
to depose and “solicit*+ from Officer Urban the exact testimony
[she] sought to present at trial.” The fact that Solis overlooks is
that the depositions of both UHP officers took place before Solis’s
expert disclosures and reports were due.11 Consequently, Solis
was aware of Urban’s expert opinion on the origin of the 248-
11. Wright was deposed in May 2012, and Urban’s deposition
took place on August 17, 2012. Solis’s expert disclosures and
reports were due more than a month later, on September 27,
2012.
20130649-CA 14 2015 UT App 11Solis v. Burningham Enterprises
foot skid mark before her deadline to disclose expert witnesses.
In other words, Solis could have designated Urban as an expert
witness in her disclosures before the deadline, and thereby
complied with rule 26(a)(3)(A). Given these facts and Solis’s
inability to demonstrate a reasonable justification12 for her failure
to include Urban among her designated expert witnesses, we are
not convinced the trial court exceeded its discretion in declining
to extend the deadline for expert disclosure.
CONCLUSION
¶28 In sum, the trial court did not err in concluding that Solis
failed to timely designate Urban as an expert witness. The trial
court properly exercised its discretion in excluding all references
to Urban’s opinions and in denying Solis’s request to extend the
disclosure deadlines. We therefore affirm.
12. Solis argues that her good cause for failing to include Urban
in her expert designation is that she “in good faith considered
Officer Urban a fact witness not an expert witness.”
20130649-CA 15 2015 UT App 11