Gines v. Edwards , 835 Utah Adv. Rep. 29 ( 2017 )

2017 UT App 47THE UTAH COURT OF APPEALS
GARTH GINES,
Appellant,
v.
SEAN EDWARDS,
Appellee.
Opinion
No. 20150259-CA
Filed March 16, 2017
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 120400620
Leonard E. McGee and Peter R. Mifflin, Attorneys
for Appellant
Karra J. Porter, Attorney for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.
ROTH, Judge:
¶1 Garth Gines appeals from the jury’s verdict in a case
involving an automobile accident and a claim of negligence
against Sean Edwards, the driver of the vehicle that collided
with the vehicle in which Gines was a passenger. Gines also
appeals certain of the trial court’s decisions related to Edwards’
expert witness. We affirm.
BACKGROUND
¶2 In early December 2009, Gines was a passenger in a
vehicle that was rear-ended by a vehicle driven by Edwards. At
trial, Edwards testified that his vehicle had been moving at
Gines v. Edwards
approximately five to ten miles per hour when the accident
occurred.
¶3 Gines had a preexisting spinal condition. Before the
accident, Gines had undergone spinal surgery twice—once in
2005 and once in 2007—to relieve headaches and pain in his
neck. Although the surgeries had temporarily relieved the pain,
his symptoms returned. About six weeks before the accident,
one of Gines’ treating physicians recommended further surgery,
opining that Gines’ spinal “condition [was] not static” and was
expected to “get worse.” The doctor stated that, although the
effect of surgery was “unpredictable,” it was “[the] best chance
of improvement at this time.” He noted that “all conservative
measures and surgery twice” had failed, and that Gines was
“truly disabled from any regular work.”
¶4 After the accident, Gines’ treating physician described
him as having “neck and upper back pains, some acute and
some chronic,” and an MRI showed “a slight progression of the
central canal narrowing” at the two spinal levels below the level
that had previously been surgically fused. When Gines’ pain did
not abate, he had a third surgery in June 2011 to fuse the two
lower levels of his spine where his treating physician had noted
“degenerative progression.” Gines’ pain persisted, however, and
five months after the surgery, Gines was still experiencing
significant pain and taking narcotic pain relievers.
¶5 In April 2012, Gines filed a complaint alleging that, “[a]s a
direct and proximate result of [Edwards’] negligent actions,” he
had “sustained serious injuries” in the automobile accident. He
requested “past, present, and future” general and special
damages.
¶6 Before trial, Gines filed two motions relevant to this
appeal. The first was a February 2014 motion in limine
requesting, among other things, that the trial court exclude one
of Edwards’ designated expert witnesses, Dr. Goldman, from
testifying at trial. Gines asserted that Edwards had failed to
20150259-CA 2 2017 UT App 47Gines v. Edwards
provide Dr. Goldman’s expert report by the deadline then in
effect. In response, Edwards provided an expert report from Dr.
Goldman and argued that the court should not exclude him as a
witness. At an April 2014 hearing, before the October 2014 trial
had been scheduled, the trial court found that the “failure to
provide . . . [Dr. Goldman’s] report was harmless” and ruled that
Dr. Goldman would not be “excluded from providing testimony
at trial.”
¶7 Second, after receiving Dr. Goldman’s report, Gines filed
a motion for partial summary judgment. He contended that,
based on the “[a]reas where Dr. Goldman[’s] opinion [is]
favorable to [Gines],” he was entitled to judgment as a matter of
law regarding fault, causation of his injuries, the reasonable
necessity of his postaccident medical treatment, and his need for
future medical care. The trial court agreed that there was no
question of material fact “on the issue of the negligence of
[Edwards]” and “the amount of [Gines’] past medical bills,”
which the court determined were $61,296.60 (the past medical
expenses). However, the court concluded that there was a
dispute of material fact regarding the reasonableness and
necessity of Gines’ medical expenses—that is, whether the past
medical expenses and any future medical expenses that Gines
claimed were in whole or in part caused by the accident rather
than by his preexisting spinal condition. The court explained
that, while “it is undisputed that [Gines] suffered at least a
musculoskeletal injury to the cervical spine, of the sprain/strain
variety with a temporary aggravation and superimposition upon
a previously injured and altered symptomatic cervical spine
anatomy” as a result of the accident, there was a factual dispute
regarding “[w]hether [Gines] suffered more serious injury.”
Thus, the case proceeded to trial to resolve the question of
causation and the amount of damages, including past and future
medical expenses and noneconomic damages.
¶8 At trial, Gines argued that all of the past medical expenses
were caused by the accident and that future medical expenses
20150259-CA 3 2017 UT App 47Gines v. Edwards
stemming from the accident would be incurred as well. Edwards
countered that “entirely 100 percent [of Gines’ condition is] due
to his previous injuries and ongoing degenerative condition,”
and that the accident only caused “a temporary aggravation of a
preexisting degenerative condition.” He agreed that Gines had
needed the surgery and other treatment for which he incurred
the medical bills, but argued that the accident “could not have
injured” Gines, based on the extent of Gines’ preexisting spinal
condition. Accordingly, he asked the jury to award “much, much
less” than the $61,296.60 Gines claimed for past medical
expenses and nothing for future medical costs.
¶9 Dr. Goldman was the defense’s sole medical expert
witness. Prior to Dr. Goldman’s taking the stand, Gines raised a
question about the permissible scope of his testimony. The trial
court conducted a hearing outside the presence of the jury to
consider the objection. Gines argued that Dr. Goldman’s expert
report did not fairly disclose three issues related to
apportionment of damages. First, he asserted that Dr. Goldman’s
report did not disclose “apportionment between what injuries
were caused by the accident and what injuries were attributable
to [his] preexisting pathology.” Second, he claimed that the
permanent impairment rating in Dr. Goldman’s report did not
provide a nonarbitrary basis for apportioning which injuries
were caused by the accident and which were preexisting—i.e., a
percentage rating both of his “whole person impairment” due to
his entire “cervical spine dysfunction” and the percentage of that
“whole person impairment” attributable to the accident. Gines
argued that the impairment percentages included in Dr.
Goldman’s report were arbitrary because they were stated “as a
hypothetical” and without “fully commit[ting] to it,” and that
even if those percentages were disclosed, they did not provide a
reasonable basis for apportioning the damages under the
apportionment standard set forth in Harris v. ShopKo Stores, Inc.,
2013 UT 34, 308 P.3d 449. Third, Gines asserted that Dr.
Goldman’s report did not disclose “what medical expenses were
incurred as a result of the accident and what medical expenses
20150259-CA 4 2017 UT App 47Gines v. Edwards
were due to [Gines’] preexisting condition.” Of the three, Gines
indicated that he had “the greatest objection” to the issue of
medical expenses, because he did not know from Dr. Goldman’s
report “what numbers [Dr. Goldman was] going to throw out
there as far as what medical expenses are related and which ones
aren’t.”
¶10 As to Gines’ first and second objections, Edwards
countered that Gines had suffered only “a temporary
aggravation of a preexisting degenerative condition” from the
accident, not any permanent injury. Thus, he argued,
“apportionment really isn’t necessary” where “100 percent of
what [Gines] is feeling right now” was due to his preexisting
condition. He also pointed out that, even though Dr. Goldman’s
report included impairment ratings, those percentages had been
stated only hypothetically because Dr. Goldman ultimately
“ha[d] committed to the position that [the effect of the accident
was] temporary” and there was no permanent impairment for
which a rating could be assigned. With respect to the medical
expenses, Edwards asserted that, although Dr. Goldman did not
“put numbers to” the costs of treatment, he did describe in his
report the treatment he considered appropriate for the sort of
temporary injury he believed Gines had suffered in the accident.
Edwards contended that any failure to include the costs of the
treatment was “harmless” and “would [not] be [a] surprise to the
plaintiffs because they deal with this every day in every case that
they have” and “they know what physical therapy . . . [and]
chiropractic [treatment] cost[].”
¶11 Dr. Goldman then told the court that he believed Gines
had suffered only a “temporary exacerbation of a preexisting
injury” which would have required only diagnostic tests, such as
x-rays and an MRI; physical therapy; medication; and home
exercises. He stated that a physical therapist typically charges,
on average, “$125 . . . per session” and that, including the
diagnostic tests and some medication, he estimated that the total
cost for the temporary injury incurred in the accident would be
20150259-CA 5 2017 UT App 47Gines v. Edwards
“somewhere in the range of 7, 8, maybe $10,000 at most for the
whole diagnosis and treatment.”
¶12 The trial court granted in part and denied in part Gines’
motion. The court stated that it agreed “with defense counsel
that apportionment is not an issue,” where “defendant’s position
[is] that no part of Mr. Gines’ condition today is attributable to
the accident.” The court also decided that “adequate foundation
has been laid for Dr. Goldman to testify about apportionment.
Zero percent if we are talking about a temporary aggravation
and 20 percent” for permanent. Additionally, the court
permitted Dr. Goldman to testify “that a healthy person who
suffered a temporary sprain/strain of the cervical spine would
incur diagnostic costs and receive treatment consisting of
physical therapy, medication, and home exercises,” as those
issues were “fairly disclosed in his report.” However, the court
excluded any testimony “as to what treatment would have been
reasonable and necessary for a person with Mr. Gines’ altered
anatomy” as “[t]here is just nothing in the report that goes to
that issue.” Finally, the court found “the failure to disclose the
progression rate generally charged by physical therapists” was
harmless, where counsel for both parties were “experienced
attorneys,” and this information “is generally known to them.”
The court accordingly allowed Dr. Goldman to testify about the
costs of treatment for a healthy person who had experienced the
kind of temporary injury Dr. Goldman believed Gines had
suffered from the accident.
¶13 When called to the stand at the jury trial, Dr. Goldman
testified that Gines had suffered only a temporary “sprain/strain
injury” from the accident; that normal treatment would have
required physical therapy, medication, and a “home exercise
program”; and that, including physical therapy and diagnostic
costs such as x-rays or an MRI, the entire treatment he had
described would cost approximately seven to ten thousand
dollars. Edwards’ counsel complied with the court’s order not to
elicit testimony about the course of treatment for a person with
20150259-CA 6 2017 UT App 47Gines v. Edwards
Gines’ altered anatomy, but Gines’ counsel raised the issue
during cross examination, and Edwards’ counsel followed up on
redirect. Dr. Goldman testified that the course of treatment for
someone with altered spinal anatomy, such as Gines, would be
similar as for a person with normal anatomy and that the
treatment would cost essentially the same. Dr. Goldman was not
asked and provided no opinion regarding a permanent
impairment rating for Gines; the issue was not raised on direct
or cross examination.
¶14 The jury awarded Gines $10,000 in past medical expenses,
nothing for future medical expenses, and $7,500 for noneconomic
damages (i.e., pain and suffering). Gines then moved for a
directed verdict, judgment notwithstanding the verdict, or, in the
alternative, a new trial. Gines contended that “Dr. Goldman was
unfairly allowed to testify outside the scope of his report” and
that he was “entitled to a directed verdict on the issue of special
damages”—essentially the full amount of the past medical
expenses—“because [Edwards] failed to provide the jury with a
non-arbitrary basis for apportioning damages.” The trial court
denied Gines’ motion, and Gines appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 Gines argues that the trial court erred when it allowed
Edwards’ expert witness, Dr. Goldman, to testify at trial after the
defense failed to provide his expert report before the deadline.
Gines further contends that, even if Dr. Goldman was allowed to
testify, the court should not have permitted him to specifically
testify about cost of the treatment for a person without altered
cervical anatomy when those opinions were not disclosed in his
expert report. “A trial court’s decisions about the admissibility of
expert testimony are reviewed for abuse of discretion.” Johnson v.
Montoya, 2013 UT App 199, ¶ 6, 308 P.3d 566.
¶16 Gines also argues that the trial court erred when it denied
his motion for directed verdict, judgment notwithstanding the
20150259-CA 7 2017 UT App 47Gines v. Edwards
verdict, or a new trial, because Edwards’ evidence regarding
apportionment of injury and costs of the harm caused by the
accident was too speculative to support the jury’s verdict. We
review a trial court’s ruling on a motion for a directed verdict
and a judgment notwithstanding the verdict for correctness.
Blackmore v. L & D Dev. Inc., 2016 UT App 198, ¶ 24, 382 P.3d 655;
State v. Bossert, 2015 UT App 275, ¶ 12, 362 P.3d 1258. We review
a trial court’s decision whether to grant a new trial for abuse of
discretion. Bossert, 2015 UT App 275, ¶ 13. We will uphold a
jury’s decision as to damages “so long as there is competent
evidence to sustain it.” Cornia v. Wilcox, 898 P.2d 1379, 1386
(Utah 1995). 1
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion by Admitting Dr.
Goldman’s Report.
¶17 Gines argues that the trial court abused its discretion
when it refused to exclude Dr. Goldman’s expert report. The trial
court found that Dr. Goldman’s report had not been timely
provided to Gines but concluded that the late disclosure was
harmless. Gines contends that the court’s conclusion “is without
reasonable basis.” Gines explains that, because he “did not know
the several material opinions Dr. Goldman was going to offer at
1. Gines identified two additional issues in his opening brief
which we do not further address. First, Gines raised the issue of
“whether the Court erred when it instructed the jury on
apportionment,” but he did not analyze it in his opening brief.
Second, Gines contended that Dr. Goldman’s apportionment of
Gines’ rating for permanent whole body impairment between
the accident and the preexisting condition was arbitrary.
However, while Dr. Goldman included such an opinion in his
written report, he did not offer an opinion about it at trial. We
therefore do not address either issue.
20150259-CA 8 2017 UT App 47Gines v. Edwards
trial,” he was prevented from “designat[ing] a rebuttal expert
during expert discovery”; consequently, Edwards, not Gines,
was left “with the last word” at trial. Edwards responds that
Gines has not met his burden of showing that the trial court
abused its discretion because he failed to provide the transcript
of the hearing in which the trial court articulated its reasons for
finding that the nondisclosure was harmless. He argues that it is
“impossible” for this court to “know what was presented to the
trial court, what the court found, or why the court exercised its
discretion as it did,” and therefore it is “impossible to say that
the trial court abused that discretion.” We agree with Edwards.
¶18 Generally, “[w]hen a defendant predicates error to [an
appellate court], he has the duty and responsibility of
supporting such allegation by an adequate record. Absent that
record, defendant’s assignment of error stands as a unilateral
allegation which the review[ing] court has no power to
determine.” See State v. Linden, 761 P.2d 1386, 1388 (Utah 1988)
(per curiam) (citation and internal quotation marks omitted). As
a consequence, “when an appellant fails to provide an adequate
record on appeal, we presume the regularity of the proceedings
below.” State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278.
¶19 The importance of this requirement is particularly
apparent here. In its written ruling allowing the late disclosure
of Dr. Goldman’s expert report and permitting him to testify at
trial, the trial court expressly stated that “[t]he basis for the
Court’s ruling is set out in greater detail in the record of the
hearing of April 28, 2014.” The ruling itself provided no analysis
of the circumstances before the court or the reasoning
supporting its finding of harmlessness. Instead, the ruling
simply states that the nondisclosure was harmless—“[f]or the
reasons set forth in the record of the April 28, 2014 hearing”—
and ruled that Dr. Goldman would be permitted to testify.
¶20 Nonetheless, Gines argues that the failure to provide a
transcript of that hearing “should not automatically be
dispositive in whether or not the court can review the
20150259-CA 9 2017 UT App 47Gines v. Edwards
underlying decision,” because this court was otherwise provided
“the entire record of the trial and more than 2,000 pages of
record materials.” In essence, he contends that the failure to
provide the hearing transcript is harmless because appellate
courts can review trial court decisions where there was no
hearing held on the matter by simply referring to other materials
provided in the record.
¶21 But it is the appellant’s burden to assemble, transmit, and
perfect the record on appeal. See Utah R. App. P. 11(c), (e); see
also State v. Wetzel, 868 P.2d 64, 67 (Utah 1993) (“Parties claiming
error below and seeking appellate review have the duty and
responsibility to support their allegations with an adequate
record.”). While an appellant is not required to provide the
transcript from every proceeding that occurred in a case, see
Utah R. App. P. 11(e)(1), the appellant is required to “include in
the record a transcript of all evidence relevant to [a] finding or
conclusion” that is being challenged on appeal, see id. R. 11(e)(2)
(“Neither the court nor the appellee is obligated to correct
appellant’s deficiencies in providing the relevant portions of the
transcript.”). In this case, Gines is challenging the trial court’s
decision permitting Dr. Goldman to testify and the finding of
harmlessness underlying that decision. The trial court held a
hearing relevant to those issues where it articulated “the basis”
for that decision—which was incorporated by reference into the
court’s summary written decision—and Gines has not provided
the transcript of that hearing. It is well established that in the
absence of a transcript of a crucial proceeding, we will presume
that a trial court’s decision is reasonable, supported by the
evidence, and did not constitute an abuse of discretion. 2 See
Linden, 761 P.2d at 1388 (per curiam).
2. We note that the trial court allowed Dr. Goldman to testify
despite the late disclosure of his report in an April 2014 motion
hearing that took place before the October 2014 trial was even
(continued…)
20150259-CA 10 2017 UT App 47Gines v. Edwards
¶22 Accordingly, we affirm the trial court’s decision to permit
Dr. Goldman to testify at trial.
II. The Trial Court Did Not Abuse Its Discretion When It
Permitted Dr. Goldman to Testify Regarding the Costs of
Reasonable and Necessary Treatment for a Person Without
Gines’ Preexisting Condition.
¶23 Gines next argues that the trial court abused its discretion
when, at trial, it permitted Dr. Goldman “to testify outside the
contents of his [expert] report.” In particular, he asserts that rule
26 of the Utah Rules of Civil Procedure required the trial court to
exclude Dr. Goldman’s testimony regarding certain “key
opinions necessary to support the defendant’s affirmative
defenses,” including that “Gines suffered a mere temporary
sprain/strain” and what constituted “reasonable and necessary
treatment . . . for a person”—unlike Gines—“without altered
cervical anatomy.” He contends that the trial court abused its
discretion when it permitted Dr. Goldman to testify that
“reasonable and necessary medical treatment for a normal
person [with a musculoskeletal strain similar to Gines’] would
amount to approximately $10,000.” 3 Gines contends that this
figure “was not contained in [Dr. Goldman’s] report” and that
“[i]t was a complete and total surprise” that “hurt [his] ability to
rebut Dr. Goldman’s opinions and is directly reflected in the
(…continued)
scheduled and six months before the trial occurred. Thus, Gines’
argument that the court’s decision prevented him from
adequately responding to the opinions described in Dr.
Goldman’s report is not facially compelling.
3. Gines has not challenged the scope of Dr. Goldman’s
testimony under any rule of evidence. Rather, he argues this
alleged error as a violation of the discovery rules in the Utah
Rules of Civil Procedure. We limit our discussion accordingly.
20150259-CA 11 2017 UT App 47Gines v. Edwards
jury’s award.” We conclude that Gines has not adequately
engaged with the bases of the trial court’s determinations, and
we are therefore unpersuaded by his arguments.
¶24 During the trial, and outside the presence of the jury, the
court heard arguments from both parties regarding the scope of
Dr. Goldman’s testimony and, in particular, the cost of treatment
issue. As discussed above, Gines argued that Dr. Goldman
should not be permitted to testify regarding apportionment
between the injuries attributable to the accident and those
attributable to Gines’ preexisting condition, any permanent
impairment rating, and the costs of medical treatment necessary
to treat Gines’ existing medical condition versus those required
to treat the injuries caused by the accident.
¶25 In response, Edwards argued that Dr. Goldman would
testify that apportionment was not at issue—the accident had a
temporary effect and did not contribute to the spinal condition
for which Gines sought compensation at trial. And as to the
medical expenses issue, Edwards argued that, although Dr.
Goldman’s report had not included the cost of the course of
treatment he opined to be reasonable and necessary for a person
with normal cervical anatomy, that omission was harmless
because Gines’ counsel “routinely present damages for all of
their various clients who have been treated by all kinds of
doctors” and accordingly were familiar with the “whole gamut”
of treatment costs. Gines’ counsel did not rebut this contention.
After the trial court confirmed with Dr. Goldman that he did not
include in his report a cost estimate—particularly as to physical
therapy—the trial court specifically asked Gines’ counsel if he
was “really surprised [by] what a physical therapist charges”
and explained to counsel that the answer to that question “goes
to the harmlessness” of Edwards’ omissions. Gines’ counsel
answered, “no, I’m not surprised.” And, apart from reasserting
that before that day he “didn’t know what [Dr. Goldman] was
going to answer” to the question of approximate cost, Gines’
counsel did not otherwise explain to the court why he was
20150259-CA 12 2017 UT App 47Gines v. Edwards
nonetheless unprepared to deal with Dr. Goldman’s cost
estimate.
¶26 The court permitted Dr. Goldman to testify as to the fact
that Gines only suffered a temporary sprain/strain and as to the
reasonable and necessary treatment related to treating a
temporary sprain/strain for a person with normal cervical
anatomy, because it determined that those opinions had been
fairly disclosed in Dr. Goldman’s report. The court decided that
Dr. Goldman would not be permitted to testify about what
treatment would be required for someone with Gines’ altered
anatomy, because that opinion was not in his report. And as to
the costs of the treatment for the temporary injury, the court
concluded that even if Dr. Goldman had not included an exact
cost for the treatment he recommended, he had fairly disclosed
in his report that a person with “a temporary sprain/strain of the
cervical spine would incur diagnostic costs and receive
treatment consisting of . . . physical therapy, medication, and
home exercises.” The court then determined that the failure to
disclose the $10,000 estimate for the cost for reasonable medical
treatment for a normal person was harmless in light of both
counsel’s experience litigating tort cases.
¶27 To support his arguments on appeal, Gines cites the
advisory committee notes to rule 26 of the Utah Rules of Civil
Procedure, which state that “courts are expected to enforce [the]
requirement” that the expert provide “a signed report containing
a complete statement of all the opinions the expert will express”
by “making clear that experts will not be allowed to testify
beyond what is fairly disclosed in a report.” Gines appears to
argue that this statement indicates that the provisions applicable
to expert reports in rule 26 unequivocally required the court not
to permit Dr. Goldman to testify outside of the contents of his
report under any circumstances. He also claims that the 2011
amendments to rule 26 “drastically altered civil discovery
practice in Utah” and that “[t]he most significant changes deal
with expert discovery.” But he does no more than that. He does
20150259-CA 13 2017 UT App 47Gines v. Edwards
not cite the actual language from rule 26 itself or attempt to
analyze the rule in light of his argument that the trial court erred.
¶28 As an initial matter, we observe that while the advisory
committee notes to our rules of civil procedure “merit great
weight in any interpretation” of the rules, we are not bound by
them. Burns v. Boyden, 2006 UT 14, ¶ 18 n.6, 133 P.3d 370. Thus,
in order to persuade us that the trial court erred, he must do
more than simply quote the advisory committee notes. He must
at least support his argument with the language of the rules
themselves.
¶29 Rule 26 states that the expert’s report “shall contain a
complete statement of all opinions the expert will offer at trial
and the basis and reasons for them” and further provides that
the expert “may not testify in a party’s case-in-chief concerning
any matter not fairly disclosed in the report.” Utah R. Civ. P.
26(a)(4)(B). However, rule 26 also specifically addresses the
consequences for failing to disclose a matter in discovery and
exceptions to those consequences, something Gines does not
acknowledge in his analysis. Subsection (d)(4) provides two
exceptions to the imposition of the penalty for failure to disclose:
“If a party fails to disclose or to supplement timely a disclosure
or response to discovery, that party may not use the undisclosed
witness, document or material at any hearing or trial unless the
failure is harmless or the party shows good cause for the
failure.” We have also consistently applied the “harmless” and
“good cause” exceptions when analyzing disclosure errors
regarding expert witnesses. See, e.g., Baumann v. The Kroger
Company, 2016 UT App 165, 381 P.3d 1135, cert. granted, 384 P.3d
566 (Utah Oct. 31, 2016) (No. 20160686); Sleepy Holdings LLC v.
Mountain West Title, 2016 UT App 62, 370 P.3d 963; R.O.A.
General, Inc. v. Chung Ji Dai, 2014 UT App 124, 327 P.3d 1233.
¶30 Here, the trial court permitted Dr. Goldman to testify
regarding the temporary nature of Gines’ injury attributable to
the accident and the reasonable course of treatment for such an
injury because it determined that the substance of that testimony
20150259-CA 14 2017 UT App 47Gines v. Edwards
was fairly disclosed in Dr. Goldman’s report. And invoking the
“harmless” exception under rule 26(d)(4), the court permitted
testimony regarding costs of the recommended treatment to
resolve a temporary strain for a person with normal cervical
anatomy because it determined that the costs of the treatment
outlined by Dr. Goldman were not a surprise to Gines’ counsel.
¶31 Gines does not engage with the bases for these
determinations—either that certain subjects had been fairly
disclosed in Dr. Goldman’s expert report or that the failure to
disclose the cost estimate for treatment did not harm Gines. See
Allen v. Friel, 2008 UT 56, ¶ 4, 194 P.3d 903 (noting that, in order
for an appellant to persuade a reviewing court that the district
court’s determinations were in error, the appellant must engage
with and challenge the actual bases of the district court’s
decisions); Duchesne Land, LC v. Division of Consumer Prot., 2011
UT App 153, ¶ 8, 257 P.3d 441 (concluding that the appellants
had failed to persuade the court “that the district court’s ruling
constituted error” where the appellants failed to address “the
actual basis for the district court’s ruling”). Instead, after quoting
the advisory committee notes, Gines simply asserts that the court
should not have permitted Dr. Goldman to testify outside of the
contents in his report. This is not sufficient to carry the burden of
persuasion in light of the actual language in rule 26 and the trial
court’s invocation of both the “fairly disclosed” standard in
subsection (a)(4)(B) and the “harmless” exception in subsection
(d)(4) as bases for his decision.
¶32 Further, Gines only briefly and generally contends, for the
first time in his reply brief, that it was error for the court to rely
on the sophistication of counsel in its harmlessness analyses. But
the primary basis for the trial court’s decision to admit Dr.
Goldman’s testimony regarding costs of treatment was that, in
light of Gines’ counsel’s actual knowledge and experience in the
area, there was no surprise about the cost of treatment or harm
through the lack of disclosure, a conclusion that counsel did not
dispute and even appeared to concede at the time. See
20150259-CA 15 2017 UT App 47Gines v. Edwards
Commonwealth Prop. Advocates, LLC v. U.S. Bank Nat’l Ass’n, 2013
UT App 300, ¶¶ 4, 6, 318 P.3d 770 (declining to reach appellant’s
“belatedly raised arguments” in its reply brief where the
appellant “failed to challenge the primary basis for [the court’s]
decision in its opening brief”).
¶33 Accordingly, we affirm the trial court’s determinations
regarding the admissibility of the challenged portions of Dr.
Goldman’s testimony.
III. The Trial Court Did Not Err When It Denied Gines’ Motions
for Judgment as a Matter of Law on Apportionment and
Medical Damages.
¶34 Gines argues that “the trial court erred when it denied
[his] multiple motions for judgment as a matter of law on
apportionment and medical economic damages.” Gines contends
that, with regard to the apportionment of his back condition and
associated medical expenses, “[t]he central issue of this case was
to determine what was caused by the accident and what was not
caused by the accident.” He argues that the evidence Edwards
provided would allow the jury to apportion damages on no
more than an arbitrary or speculative basis. As a result, he
asserts that under Harris v. ShopKo Stores, Inc., 2013 UT 34, 308
P.3d 449, this uncertainty entitled him to judgment as a matter of
law in the full amount of the past medical expenses found by the
trial court—$61,296.60.
¶35 As a general rule, in a tort case “a plaintiff is entitled to
recover for all harm that is proximately caused by [a]
defendant’s negligence,” including aggravation of a preexisting
condition. See id. ¶¶ 23–24. It is the plaintiff’s burden to prove
causation in an action for negligence. See Fox v. Brigham Young
Univ., 2007 UT App 406, ¶ 21, 176 P.3d 446. Furthermore, “[a]
plaintiff may not recover damages for any pre-existing condition
or disability she may have had which did not result from any fault
of the defendant,” and although a plaintiff may recover damages
for aggravation of a preexisting condition, “[he] may only do so
20150259-CA 16 2017 UT App 47Gines v. Edwards
to the extent that the aggravation was proximately caused by the
defendant’s negligence.” ShopKo, 2013 UT 34, ¶ 24 (citation and
internal quotation marks omitted).
¶36 Thus, in cases where apportionment of the damages
between a plaintiff’s preexisting condition and a defendant’s
negligence is at issue, the jury should apportion damages in a
way that reflects the relative contribution of both the historical
condition and the intervening event. See Tingey v. Christensen,
1999 UT 68, ¶ 15, 987 P.2d 588 (“[I]f the jury can find a reasonable
basis for apportioning damages between a preexisting condition
and a subsequent tort, it should do so[.]”). And where the
evidence adequately raises a question of apportionment, “the
burden is on the defendant to demonstrate that apportionment is
possible.” ShopKo, 2013 UT 34, ¶ 28. This approach stems from
the principle that “once the fact of damage is established, a
defendant should not escape liability because the amount of
damage cannot be proved with precision.” Tingey, 1999 UT 68,
¶ 14 (citation and internal quotation marks omitted). As a result,
if a defendant does not carry his burden—if, despite the evidence
provided by the defendant, the jury still “finds it impossible to
apportion damages”—then the jury “should find that the
tortfeasor is liable for the entire amount of damages.” Id. ¶ 15.
¶37 Nevertheless, the Utah Supreme Court has recognized
that “it is rarely easy to determine the causal contribution of a
preexisting condition to a plaintiff’s pain and injury.” ShopKo,
2013 UT 34, ¶ 27 (“The ‘[o]bjective symptoms and the physical
basis of . . . ailment[s] are often difficult to discover, analyze and
demonstrate to others.’” (alterations and omission in original)
(quoting Brunson v. Strong, 412 P.2d 451, 453 (Utah 1966))). Thus,
in cases requiring allocation of “causation between preexisting
pathologies and a subsequent accident,” the defendant must
provide medical expert testimony, id. ¶ 34, and the expert
testimony must provide the jury “some nonarbitrary evidentiary
basis . . . to apportion damages,” id. ¶ 32. This does not mean
that the expert must “opine on the exact percentage . . . of the
20150259-CA 17 2017 UT App 47Gines v. Edwards
injury attributable to [the plaintiff’s] preexisting conditions.” Id.
¶ 38. “In an ideal world, an expert would provide a precise
estimation,” but as a practical matter “we must account for the
reality of medical uncertainty.” Id. As a result, presentation of “a
reasonable range of percentages” or “a useful nonnumeric
description” allocating causal attribution between an accident
and the plaintiff’s preexisting condition will be sufficient to
provide the jury with a nonspeculative basis to apportion. Id.Thus, the “determinative question [here] is whether the expert
testimony has supplied the jury with [such] a nonarbitrary basis
for apportioning damages.” See id.
¶38 In ruling on Gines’ pretrial motion for partial summary
judgment, the trial court concluded that Gines had already
established certain components of his negligence claim against
Edwards as a matter of law. The court determined that Edwards
had been negligent and that there was no dispute of material fact
regarding the dollar amount of the past medical expenses.
However, the court decided that there was a dispute of material
fact as to whether Edwards’ negligence was “the cause in fact
and proximate cause of the injuries suffered by [Gines].” In
particular, the court concluded that while it was undisputed that
Gines suffered “at least a musculoskeletal injury to [his] cervical
spine, of the sprain/strain variety” along with “a temporary
aggravation and superimposition upon [Gines’] previously
injured and altered symptomatic cervical spine anatomy,” a
dispute remained about whether “Gines suffered more serious
injury as a result of this accident” requiring the surgery and
related treatment that formed the bulk of the past medical
expenses he sought to recover. As a result, the court concluded
that Gines was not entitled to judgment as a matter of law on the
issues of causation and whether he was entitled to the full
amount of the past medical expenses or future medical care.
¶39 The case then went to trial on the issues of causation and
damages. Specifically, the jury was asked to determine the extent
of Gines’ injuries caused by the accident—in other words,
20150259-CA 18 2017 UT App 47Gines v. Edwards
whether the accident caused Gines any harm beyond a
“sprain/strain” and a temporary aggravation of his preexisting
back condition. Depending on the answer to that question, the
jury was then required to determine the amount of damages
associated with the injury it decided had resulted from Edwards’
negligence. The jury ultimately awarded Gines $10,000 for his
past medical expenses and $7,500 for noneconomic damages,
with no award for future medical expenses. In other words, by
awarding so much less than the full amount of past medical
damages and no future damages, the jury must have concluded
that the accident did cause Gines some injury but not much more
than the limited musculoskeletal sprain and temporary
aggravation of his preexisting spinal condition that Edwards had
argued for.
¶40 Gines’ claims of error on appeal implicate both the jury’s
apparent causation determination and its damages award. He
challenges the jury’s damages award by arguing that Edwards
provided the jury only an arbitrary basis on which to conclude
that the accident did not result in long-term effects, including the
spinal condition that required the 2011 surgery. He also argues
that the jury’s actual medical economic damages award of
$10,000 is “nonsense,” because it does not rationally correlate
with the actual past medical bills he incurred or the treatment he
actually received. Thus, the errors Gines identifies on appeal
seem to fall into two categories related to apportionment:
evidence of the nature and extent of the injury or harm he
suffered from the accident and the evidentiary basis for the
jury’s resulting damages award.
¶41 Gines’ characterization of the components of an
apportionment analysis is consistent with the way our supreme
court described the apportionment of damages between an
accident and a plaintiff’s preexisting condition in Harris v.
ShopKo Stores, Inc., 2013 UT 34, 308 P.3d 449. There, the supreme
court determined that the apportionment of damages necessarily
depends on expert evidence regarding the relative extent to
20150259-CA 19 2017 UT App 47Gines v. Edwards
which the potential sources of a plaintiff’s claimed injury
contributed to the condition for which he or she seeks
compensation at trial, the possible causes in that case being a fall
on the defendant’s premises and a preexisting back condition. Id.
¶ 37. In particular, the court held that a defendant claiming
apportionment cannot meet his or her burden by providing
expert testimony that does no more than establish that the
plaintiff had a relevant preexisting condition which could have
contributed to the plaintiff’s current pain. Id. Rather, in order for
the jury to consider the apportionment of damages between an
accident and a preexisting condition, there must be evidence
regarding “the extent to which [a plaintiff’s] [preexisting]
conditions contributed to her pain, if at all” by providing “a
relative comparison between the proposed causes of [a plaintiff’s]
pain.” Id. Thus, “the determinative question is whether the expert
testimony has provided the jury with a nonarbitrary basis for
apportioning damages” between the results of the defendant’s
negligence and the harm caused by the plaintiff’s preexisting
condition. Id. ¶ 38.
¶42 Accordingly, to determine whether the jury properly
awarded damages, we must first consider the evidence
presented by Edwards about the extent of harm caused by
Gines’ preexisting condition versus Edwards’ negligence. We
will then address whether the jury’s damages award finds
adequate support in the evidence presented at trial.
A. Apportionment of Injury
¶43 On appeal, neither party questions whether Gines was
suffering from a preexisting spinal condition at the time of the
accident. Rather, Gines contends that Edwards provided only a
speculative basis to apportion the harm (and thus the damages)
between the accident and Gines’ preexisting condition. See
ShopKo, 2013 UT 34, ¶ 28 (explaining that “the burden is on the
defendant to demonstrate that apportionment is possible where
there is any uncertainty”).
20150259-CA 20 2017 UT App 47Gines v. Edwards
¶44 At trial, Gines argued that the accident caused all of the
cognizable harm he suffered from the point of the accident
forward by permanently aggravating his preexisting back
condition, and that, but for the accident, he would not have had
to undergo surgery in 2011. Gines invoked the “eggshell
plaintiff” concept to support his argument, which he described
as requiring that “you take your plaintiff as you find them.” He
compared himself to a “walnut that[] already [had] three or four
or five cracks in it” at the time of the accident and stated that the
accident itself was a hammer blow that “shatter[ed]” the walnut.
Gines focused on convincing the jury that all of the injury
associated with the past medical expenses was a result of
Edwards’ negligence. To that end, Gines’ treating physicians
testified that, in their opinion, the accident “changed [Gines’]
story” by exacerbating the symptoms associated with Gines’
spinal condition to the point that he needed additional surgery.
¶45 The defense countered that the injury caused by Edwards’
negligence was nothing “more serious” than a temporary
aggravation of Gines’ preexisting spinal condition, characterizing
the injury as merely a temporary overlay on an ongoing and
rapidly degenerating spinal condition that, before the accident,
was already inevitably on its way toward another surgery.
Defense counsel pointed to evidence that Gines’ own doctor,
“just a month before this accident[,] . . . was noting that [Gines’
preexisting spinal] condition was getting worse and worse” and
had already determined that “surgery would be best for
[Gines].” Edwards also supported his theory of injury with the
expert testimony of Dr. Goldman. Dr. Goldman testified that, in
his opinion, “whatever Mr. Gines is experiencing right now is
entirely 100 percent due to his previous injuries, his ongoing
degenerative condition,” and not due to Edwards’ negligence.
He noted that at the time of the accident, Gines “already had
significantly altered spinal anatomy” and that before the
accident there had already been “a lot of discussion” between
20150259-CA 21 2017 UT App 47Gines v. Edwards
Gines and his treating physicians about “his progression and his
problems, and even the question of surgery being raised.” 4 He
testified that, based on his review of the pertinent records and
the physical examination, he believed that Gines had suffered no
more than a “temporary exacerbation of his preexisting already
injured anatomy,” or, in other words, an injury that had been
merely “superimposed upon his prior cervical status.” Dr.
Goldman stated that, in his opinion, Gines’ injury was consistent
with similar “musculoskeletal dysfunction” injuries that
typically resolve within a three-to-six month period following
the accident. And he testified that, even if it was ultimately
reasonable and necessary for Gines to undergo spinal surgery,
that surgery was required by his preexisting spinal condition,
not the accident, because “[y]ou don’t operate on” a
“musculoskeletal sprain/strain injury” like the kind Gines
suffered in the collision.
¶46 Gines is correct that Edwards had the burden of
providing the jury with “a reasonable basis for apportioning
damages between a preexisting condition and a subsequent
tort.” Tingey v. Christensen, 1999 UT 68, ¶ 15, 987 P.2d 588. But
the evidence Edwards provided to the jury regarding the extent
of harm caused by the accident was not uncertain in a way that
would make damages “impossible to apportion.” Rather, this
seems to be one of those rare cases in which, however
4. For example, one of Gines’ primary care physicians testified
that Gines’ pain had been “escalating” before the December 2009
car accident, that “[h]e was not getting better,” and that only a
couple of months before the accident the physician had
discussed with Gines that either physical therapy or surgery
were options to attempt to alleviate the pain. The jury also
received copies of Gines’ medical records, which showed that, in
the few months before the accident, the two lower levels in his
neck (that were later fused in the postaccident surgery) were
already degenerating and causing him significant pain.
20150259-CA 22 2017 UT App 47Gines v. Edwards
complicated the underlying medical evidence may have been,
the jury’s determination of “the causal contribution of a
preexisting condition to a plaintiff’s pain and injury” came down
to a simple choice: either the preexisting condition caused all the
harm related to Gines’ need for surgery, as Edwards argued, or
the accident did, as Gines argued. See ShopKo, 2013 UT 34, ¶ 27.
Neither party presented evidence or argument to support a more
nuanced apportionment of causation between the accident and
Gines’ preexisting condition. And, importantly, given Gines’
argument that Edwards failed to meet the ShopKo burden, the
defense presented expert evidence that Gines’ progressively
degenerating spine, not the accident, was the entire cause of the
condition which led to the 2011 surgery and that the accident
only caused a temporary aggravation that would have resolved
within months.
¶47 In other words, by presenting evidence that the accident
caused zero percent of the lasting harm that ultimately led to
Gines’ surgery and that preexisting conditions were 100 percent
responsible, Edwards’s expert provided the jury with “a useful
nonnumeric description” as well as “a reasonable range of
percentages” from which it could determine the relative
contributions of Edwards’ negligence and Gines’ preexisting
condition to the permanent harm for which Gines sought
compensation at trial. See id. ¶ 38. Similarly, Edwards’ expert
provided the jury with a nonarbitrary basis to determine the
extent of harm that was caused by the accident—all, or 100
percent, of the sprain/strain that temporarily aggravated Gines’
preexisting spinal condition.
¶48 Accordingly, we reject Gines’ contention that there was
insufficient evidence to provide the jury with a nonarbitrary
basis for apportioning the cause of Gines’ postaccident
condition—and his consequent need for surgery—between the
accident and his preexisting condition. We now consider
whether, in light of this conclusion, the jury’s actual damage
award is supported by the evidence.
20150259-CA 23 2017 UT App 47Gines v. Edwards
B. Damages Award
¶49 It is well settled that we “will uphold [a jury’s] calculation
of damages so long as there is competent evidence to sustain it.”
Cornia v. Wilcox, 898 P.2d 1379, 1386 (Utah 1995); see also Brunson
v. Strong, 412 P.2d 451, 453 (Utah 1966) (“The courts are and
should be reluctant to interfere with a jury verdict and will not
do so as long as there is any reasonable basis in the evidence to
justify it.”). “Within the limits of reason it is [the jury’s]
prerogative to place [its] own appraisal upon the evidence which
impresses [it] as credible and to draw conclusions therefrom in
accordance with [its] own best judgment.” Balderas v. Starks, 2006
UT App 218, ¶ 24, 138 P.3d 75 (alterations in original) (citation
and internal quotation marks omitted). “[A]n award of damages
will not be deemed unreasonably low as long as it comports
with some rational appraisal or estimate of damages based on
evidence before the jury.” 25A C.J.S. Damages § 466 (2016).
¶50 The jury awarded Gines $10,000 in medical economic
costs, $7,500 in pain and suffering, and $0 in future costs. Gines
argues that even if the jury determined that his injury from the
accident was only temporary, the damages award cannot stand,
because Edwards did not provide the jury with a reasonable way
to apportion the medical costs between the temporary injury that
Edwards urged and the treatment Gines received for his ongoing
back condition. He contends that Dr. Goldman provided no
opinion about when his temporary aggravation resolved or what
treatment he would have required, given his altered anatomy—
information Gines argues is essential to calculation of any
medical economic damages award. He claims this uncertainty in
the evidence supporting apportionment of damages should have
been resolved in his favor, resulting in an award of all the past
medical expenses as a matter of law. As a corollary, he claims
that the $10,000 the jury awarded for past medical expenses is a
“nonsense answer” to the question of how much Gines should
have been awarded due to Edwards’ negligence, because there
was no rational basis in the evidence to allow the jury to allocate
20150259-CA 24 2017 UT App 47Gines v. Edwards
specific components of the medical treatment he received after
the accident between temporary injury and preexisting condition
so as to arrive at a figure of $10,000 for treatment related only to
the accident.
¶51 As we noted above, it is a reasonable inference from the
jury’s limited award for past medical expenses and its decision
not to award anything for future medical expenses that the jury
accepted Edwards’ theory that the accident caused only a
temporary injury and that Gines’ preexisting spinal degeneration
was the sole cause of his 2011 surgery. Further, it is reasonable to
infer that because the jury did not accept Gines’ theory that the
accident caused his need for surgery, it also rejected his position
that the past medical procedures and costs related to Gines’
surgery were the result of Edwards’ negligence. Thus, the jury
had a reasonable basis for rejecting Gines’ position that it ought
to award him the entirety of the postaccident medical expenses.
The question then becomes whether there was sufficient
evidence to support the jury’s $10,000 award for the costs of
resolving the temporary injury caused by Edwards’ negligence.
We conclude that there was.
¶52 First, the jury could have based its award on Dr.
Goldman’s testimony. Dr. Goldman opined about the length of
time reasonably necessary to resolve the temporary sprain/strain
he believed the accident had caused, the kind of treatment that
would have been required during that time frame, and the costs
associated with such treatment. Although the treatment and the
cost estimates Dr. Goldman described did not correlate precisely
with the actual medical bills that Gines had incurred after the
accident, they did provide a cap on the costs that Gines would
reasonably have incurred as a result of Edwards’ negligence had
treatment focused solely on the temporary effects of the accident
rather than the need for surgery to resolve the symptoms of the
preexisting condition.
¶53 To begin with, Dr. Goldman testified about the amount of
time it would have taken to resolve the temporary aggravation
20150259-CA 25 2017 UT App 47Gines v. Edwards
of Gines’ condition. He indicated that 85 to 90 percent of
temporary musculoskeletal injuries (of the kind he concluded
Gines had suffered from the accident) typically resolve within a
three-to-six month period and that, in his opinion, Gines’ injury
fell within that range “for musculoskeletal dysfunction.” He
further stated that in his experience, even patients with “a very,
very similar” or an “even worse” preexisting spinal condition
than Gines, who had then been in similar accidents, usually
returned to baseline “within a three or four, maximum six month
window of time” after suffering temporary aggravation of a
preexisting condition.
¶54 Dr. Goldman also provided the jury with a useful
nonnumeric description of what the treatment would normally
be like for a person who had suffered a temporary spinal
sprain/strain and further explained that the treatment for
someone with Gines’ altered anatomy would not substantially
differ. Dr. Goldman testified that the course of treatment to
resolve the sprain/strain would include diagnostic tests, such as
an x-ray or an MRI; medications, such as muscle relaxants and
anti-inflammatories; and physical therapy, which would include
“stretching, flexion, extension, [and] graduated strengthening
exercises” that the patient could continue with at home. Dr.
Goldman stated that all patients with a temporary sprain/strain
would be approached “the same way” and given “the same
treatment,” regardless of whether the patient had a preexisting
spinal condition like Gines, the only difference being how to
modify the treatment plan based upon what the patient is or is
not able to do as a result of such altered anatomy and associated
conditions such as pain, for example. And Dr. Goldman testified
that Gines may not have needed any additional treatment to
resolve the temporary aggravation from the accident beyond
what he would already have been doing “medication-wise and
exercise-wise” to treat his preexisting condition.
¶55 Finally, having provided the time frame in which a
temporary aggravation would have resolved and a description
20150259-CA 26 2017 UT App 47Gines v. Edwards
of the course of treatment necessary, the defense then provided
the jury a cap on how much the treatment Dr. Goldman
described would have cost. Dr. Goldman testified that the cost of
the treatment reasonably necessary to return a person to baseline
from a sprain/strain that temporarily aggravated a preexisting
spinal injury would be from $7,000 to $10,000. This estimate
included diagnostic costs as well as those for physical therapy
and medication over the three-to-six month period he thought
reasonably necessary to resolve the condition. And Dr. Goldman
testified that the “[t]he numbers [he] gave” for treatment costs
“basically[] . . . are all the same” for a person with altered
anatomy—that “there may [only] be a variation, a little up, a
little down depending on what the patient can or cannot do.”
¶56 In sum, although Dr. Goldman’s testimony provided only
a range of costs to resolve a temporary aggravation as opposed
to an exact calculation, his cost estimate nonetheless provided a
reasonable basis for the jury to determine the amount that would
compensate Gines for the medical costs of Edwards’ negligence.
Dr. Goldman’s estimate was supported by testimony about “a
reasonable range” of time necessary to resolve a temporary
aggravation of the kind he believed Gines suffered as well as “a
useful nonnumeric description” of the kind of treatment
required. Cf. Harris v. ShopKo Stores, Inc., 2013 UT 34, ¶ 38, 308
P.3d 449 (acknowledging “the reality of medical uncertainty”
and reasoning that “a reasonable range of percentages” or a
“useful nonnumeric description” of the relative contribution of a
preexisting injury and an accident can be enough to provide “the
jury with a nonarbitrary basis for apportioning damages”).
¶57 Thus, we conclude that the evidence that the defense
presented through Dr. Goldman provided the jury with a
“reasonable basis . . . to justify” awarding Gines $10,000 in past
medical costs as well as no award for future costs. See Brunson v.
Strong, 412 P.2d 451, 453 (Utah 1966).
¶58 Moreover, the jury could reasonably have based its
medical costs award on testimony that Gines’ own witness
20150259-CA 27 2017 UT App 47Gines v. Edwards
provided. One of Gines’ treating physicians testified that the
hospital component of the surgery would cost “around $35,000
or $40,000” and that the surgery itself cost $12,100—that is,
Gines’ surgery and related hospital costs likely totaled between
about $47,100 and $52,100. Subtracting the estimated hospital
and surgery costs from the approximately $61,000 Gines
incurred in total past medical expenses leaves a range of
between $8,900 and $13,900 in past medical costs not directly
related to the surgery. The jury’s $10,000 medical economic
damages award fell within this range. See Cornia v. Wilcox, 898
P.2d 1379, 1386 (Utah 1995). In other words, the jury need not
have relied solely upon Dr. Goldman’s testimony to arrive at its
award; rather, the award for past medical expenses found
support in the evidence as a whole.
¶59 Accordingly, because there was a “reasonable basis in the
evidence to justify” the jury’s damages award, see Brunson, 412
P.2d at 453, we see no reason to disturb it. As a result, we
conclude that the court did not err in denying Gines’ motions for
directed verdict, judgment notwithstanding the verdict, and new
trial.
CONCLUSION
¶60 Gines has not persuaded us that the trial court exceeded
its discretion by admitting Dr. Goldman’s expert report or in
determining the scope of Dr. Goldman’s testimony during trial.
We also conclude that the trial court did not err when it denied
Gines’ motions for judgment as a matter of law on the issues of
apportionment and medical economic damages. Thus, we affirm.
20150259-CA 28 2017 UT App 47