Coroles v. State

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 48
IN THE
SUPREME COURT OF THE STATE OF UTAH
MICHELLE COROLES,
Appellant,
v.
STATE OF UTAH, UNIVERSITY HEALTH CARE, UNIVERSITY OF UTAH STATE
HOSPITALS AND COMMUNITY, PARKWAY HEALTH CENTER,
UNIVERSITY OF UTAH MEDICAL CENTER, and UNIVERSITY OF UTAH
HEALTH SCIENCES,
Appellees.
No. 20130217
Filed April 21, 2015
Third District, Salt Lake
The Honorable Paul G. Maughan
No. 20130217
Attorneys:
Karra J. Porter, Nathan D. Adler, Sarah E. Spencer,
Salt Lake City, for appellant
Rodney R. Parker, Elizabeth L. Willey, Terence L. Rooney,
Salt Lake City, for appellees
JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PARRISH, and JUDGE ORME joined.
JUSTICE NEHRING did not participate herein due to his retirement;
COURT OF APPEALS JUDGE GREGORY K. ORME sat.
JUSTICE DENO G. HIMONAS became a member of the Court on
February 13, 2015, after oral argument in this matter, and
accordingly did not participate.
COROLES v. STATE
Opinion of the Court
JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 In this medical malpractice suit, the district court struck
two sets of proposed expert witnesses retained by the plaintiff. The
court struck the first set of witnesses because the plaintiff’s attorney
revealed confidential information to them about the proceedings
before a mandatory prelitigation panel. The court also struck two
replacement expert witnesses because they were designated after the
cutoff date established by the scheduling order. Because the plaintiff
was then left without any experts to establish the necessary elements
of her malpractice claim, the district court granted summary
judgment in favor of the defendants and dismissed the plaintiff’s
claim.
¶2 The plaintiff appeals from the judgment, arguing that the
district court erred by striking both the original expert witnesses and
the replacement experts. We agree with the plaintiff on both counts.
The court erred by striking the original experts without inquiring
whether the confidential information revealed to them influenced
their opinions. The court also erred when it excluded the second set
of witnesses because they were designated after the cutoff date.
Although courts have discretion to sanction a party for violating a
scheduling order, the district court applied the wrong rule when it
sanctioned the plaintiff. Moreover, the sanction of witness exclusion
was not warranted in this case.
BACKGROUND
¶3 After suffering from symptoms including coughing,
wheezing, and skin paleness, Thomas Coroles sought treatment at a
medical clinic. He was diagnosed with the flu, prescribed an inhaler
and cough syrup, and told that his symptoms would become worse
before he got better. A few days later, Mr. Coroles died from
pneumonia.
¶4 Mr. Coroles’s wife, Michelle Coroles, decided to sue
several entities she believed to be responsible for her husband’s
death. As required by the Utah Health Care Malpractice Act
(Malpractice Act), Mrs. Coroles first presented her malpractice
claims to a prelitigation panel and participated in an evidentiary
hearing before the panel. See UTAH CODE §§ 78B-3-412, -416. After
completing the required proceedings before the panel, Mrs. Coroles
2
Cite as: 2015 UT 48
Opinion of the Court
initiated a lawsuit against the State of Utah and medical facilities
associated with the State that she alleged were liable for Mr.
Coroles’s death.
¶5 During the ensuing litigation, Mrs. Coroles served
witness designations and expert reports for two expert medical
witnesses. The designations were made on the final day permitted
by the scheduling order. Each of the reports contained an
introductory letter Mrs. Coroles’s counsel had sent to the medical
experts before they were retained. Both letters referenced some
opinions allegedly expressed by members of the prelitigation panel.
¶6 Two months after Mrs. Coroles designated her experts
and served the reports, the defendants moved to strike the
designations. The defendants argued that when Mrs. Coroles
revealed information to her experts about the alleged opinions of the
prelitigation panel, she violated the confidentiality provision of the
Malpractice Act, which provides that the proceedings before the
prelitigation panel are “confidential, privileged, and immune from
civil process.” Id. § 78B-3-416(1)(d). The defendants asserted that the
appropriate remedy for this violation was the exclusion of the two
experts. They also moved for summary judgment, arguing that
because Mrs. Coroles’s experts should be stricken, she could no
longer produce the necessary expert testimony to support her
medical malpractice claim.
¶7 Two weeks later, Mrs. Coroles filed an opposition to the
defendants’ motion to strike the experts. She also served a
supplemental expert witnesses designation that named two
additional expert witnesses. Mrs. Coroles argued that even if the
district court elected to strike the initial expert witnesses, the court
should not grant summary judgment because the supplemental
experts could testify at trial. The defendants subsequently moved to
strike the supplemental experts, arguing that the supplemental
expert designation was untimely under the scheduling order.
¶8 The district court ruled that because the two original
medical experts had been exposed to confidential information about
the prelitigation proceedings, they could not testify at trial. It also
concluded that the defendants had been prejudiced by the late
designation of the supplemental experts and barred them from
testifying. Because these two rulings deprived Mrs. Coroles of any
expert witnesses to testify at trial, the district court granted summary
judgment in favor of the defendants. Mrs. Coroles appealed from the
judgment against her.
3
COROLES v. STATE
Opinion of the Court
ANALYSIS
I. EXCLUSION OF THE ORIGINAL EXPERT WITNESSES
BECAUSE OF THEIR EXPOSURE TO CONFIDENTIAL
INFORMATION ABOUT THE PRELITIGATION PANEL
PROCEEDINGS
¶9 A plaintiff may not file a lawsuit for medical malpractice
until he or she satisfies the prelitigation requirements of the
Malpractice Act. UTAH CODE § 78B-3-412(1). First, the plaintiff must
serve all defendants with a “notice of intent to commence an action”
at least ninety days before filing the lawsuit. Id. § 78B-3-412(1)(a).
Second, the plaintiff must participate in a hearing before a
prelitigation panel composed of a lawyer, a licensed healthcare
provider, and a lay panelist and obtain a certificate of compliance
from the Utah Division of Occupational and Professional Licensing.
Id. §§ 78B-3-412(1)(b), -416(4), -418(3). The division will issue a
certificate of compliance if (1) the prelitigation panel concludes that
the plaintiff’s claim “has merit,” (2) the plaintiff files an “affidavit of
merit” signed by a licensed health care provider, (3) the defendant
fails to reasonably cooperate in scheduling a prelitigation hearing
within the allotted time, or (4) the plaintiff and the defendant
stipulate to forego a hearing before a prelitigation panel. Id. § 78B-3-
418(2)–(3); see also id. §§ 78B-3-416(3)(c)–(e), -423(2)–(3).
¶10 One of the purposes of this prelitigation process is to
“expedite early evaluation and settlement of claims.” Id. § 78B-3-
402(3). To this end, the Malpractice Act contains a confidentiality
provision, which encourages the parties to fully participate in the
prelitigation hearing and evaluate the strengths and weaknesses of
the claim without fear of giving the opposing party an advantage in
potential future litigation. This confidentiality provision states that
the proceedings before the prelitigation panel “are confidential,
privileged, and immune from civil process.” 1 Id. § 78B-3-416(1)(d).
1 Notably, the Malpractice Act provides that the prelitigation
panel proceedings are both confidential and privileged. The directive
that the proceedings remain confidential indicates that information
about the proceedings is “meant to be kept secret,” and may not be
shared with individuals who did not participate in the prelitigation
hearing. BLACK’S LAW DICTIONARY 339 (9th ed. 2009) (defining
“confidential”); see also id. (defining “confidentiality” as “the state of
having the dissemination of certain information restricted”). The
4
Cite as: 2015 UT 48
Opinion of the Court
The Malpractice Act, however, provides no guidance on what the
consequences of breaching this confidentiality provision should be.
¶11 In this case, Mrs. Coroles does not dispute that her counsel
violated the confidentiality provision of the Malpractice Act when he
revealed the alleged opinions of the prelitigation panel to the
prospective expert witnesses. Instead, she contends that the district
court erred by concluding that exposing an expert to confidential
information “creates an irrebuttable presumption that the expert is
tainted and must be excluded.” In other words, Mrs. Coroles asserts
that the court should not have excluded the experts without first
determining whether the confidential information would affect their
testimony at trial. We first determine the appropriate standard of
review for this issue. We then apply this standard of review to
evaluate whether the district court erred.
A. Standard of Review
¶12 The defendants argue that the district court’s exclusion of
the expert witnesses is similar to a discovery sanction under rule 37
of the Utah Rules of Civil Procedure. The defendants further contend
that, like a discovery sanction, the district court’s ruling should be
reviewed for an abuse of discretion. See Goggin v. Goggin, 2013 UT 16,
¶ 33, 299 P.3d 1079 (discovery sanctions are reviewed for abuse of
discretion). There is an important distinction, however, between a
discovery sanction and the district court’s order excluding the expert
witnesses in this case. Rule 37(e) authorizes a district court to
sanction a party for disobeying a discovery order and describes an
array of sanctions to choose from. In light of this explicit grant of
discretion, it is entirely appropriate to review a district court’s
discovery-sanction ruling for an abuse of that discretion. In contrast,
there is no statute, rule, or caselaw authorizing the district court to
sanction parties for a violation of the confidentiality provision of the
independent mandate that the proceedings are also privileged has a
completely different effect. A privilege grants the holder of the
privilege the legal right to refuse to disclose certain information. Cf.
UTAH R. EVID. 504(b) (attorney-client privilege). Thus, while the
confidentiality mandate restricts the rights of the parties to reveal
information concerning the prelitigation proceedings, the privilege
mandate grants the parties the option to refuse to disclose the
information. Because this case deals with a violation of the
confidentiality mandate of Utah Code section 78B-3-416(1)(d), we do
not interpret or address the privilege mandate.
5
COROLES v. STATE
Opinion of the Court
Malpractice Act. Rule 37(e) does not apply because no court order
was disobeyed, and the Malpractice Act does not explicitly authorize
the district court to take any particular action in response to a
violation of the confidentiality provision. The district court,
therefore, was in the difficult position of choosing a course of action
with no law to guide it.
¶13 Thus, Mrs. Coroles’s argument that the district court erred
when it excluded her expert witnesses without examining them
raises the fundamental legal question of what a court may do when
confidential information about the proceedings before a prelitigation
panel is shared with a testifying expert. The district court concluded
as a matter of law that the exposure of an expert to any information
protected by Utah Code section 78B-3-416(1)(d) requires automatic
exclusion. Because this court has “the power and duty to say what
the law is and to ensure that it is uniform throughout the
jurisdiction,” we examine this legal conclusion de novo. State v. Pena,
869 P.2d 932, 936 (Utah 1994).
B. Exclusion of Expert Witnesses Exposed to Confidential Information
¶14 As noted above, one of the purposes of the confidentiality
provision of the Malpractice Act is to prevent the prelitigation-panel
proceedings from affecting the actual litigation of a claim. Supra ¶ 10.
In this case, the district court’s apparent rationale for excluding the
expert witnesses exposed to confidential information was to prevent
the confidential information from tainting the evidence presented to
the jury. The question presented in this appeal, therefore, is whether
a district court may achieve this objective by ordering the per se
exclusion of the experts without first determining whether their
opinions are in fact based upon the confidential information.
¶15 We have not discovered Utah caselaw addressing this
question, but cases examining analogous federal statutes are helpful
and persuasive. Statutes regulating marine casualty reports and
federal highway safety reports, for example, contain provisions
forbidding the use of those reports in civil litigation. Thus, “no part
of a report of a marine casualty investigation conducted under [the
federal reporting statute] . . . shall be admissible as evidence or
subject to discovery in any civil or administrative proceedings.” 46
U.S.C. § 6308(a) (2015). Similarly, certain highway safety reports
“shall not be subject to discovery or admitted into evidence in a
Federal or State court proceeding or considered for other purposes in
any action for damages.” 23 U.S.C. § 409 (2015). The objective of
6
Cite as: 2015 UT 48
Opinion of the Court
these statutes is the same as the objective of the confidentiality
provision at issue in this case: to prevent certain information from
affecting the outcome of civil litigation. See Robertson v. Union Pac.
R.R. Co., 954 F.2d 1433, 1435 (8th Cir. 1992) (“[T]he underlying
intent of [23 U.S.C. § 409] is to facilitate candor in administrative
evaluations of highway safety hazards, and to prohibit federally
required record-keeping from being used as a tool . . . in private
litigation.” (third alteration in original) (citations omitted) (internal
quotation marks omitted)).
¶16 When interpreting these federal statutes, courts have held
that experts exposed to the inadmissible information should not
automatically be excluded. Instead, experts have been allowed to
testify so long as they are able to form an opinion without relying
upon the inadmissible information. When interpreting the marine
casualty reporting statute (46 U.S.C. § 6308), courts have rejected
attempts to exclude an expert who has reviewed inadmissible
casualty reports. United States v. Egan Marine Corp., 808 F. Supp. 2d
1065, 1074 (N.D. Ill. 2011) (“[A]n expert report that simply cites or
references an [inadmissible casualty report] is not necessarily
inadmissible, nor is the expert automatically barred from
testifying.”); Am. S.S. Co. v. Hallett Dock Co., No. 09-2628 (MJD/LIB),
2013 WL 308907, at *6 (D. Minn. Jan. 25, 2013) (“[T]he portion of any
expert opinion that relies on or is substantially based on the
[inadmissible casualty report] is inadmissible, although the rest of
the expert opinion is still admissible.”); Baker Hughes Oilfield
Operations, Inc. v. Seabulk Tankers, Inc., No. Civ.A.03-1230, 2004 WL
859199, at *1 (E.D. La. Apr. 20, 2004) (striking portions of an expert
report that rely upon an inadmissible casualty report but declining to
strike conclusions that do not rely on the inadmissible casualty
report). At least one court interpreting the highway safety report
statute (23 U.S.C. § 409) has similarly refused to categorically exclude
an expert who reviewed an inadmissible report. Lanasa v. Harrison,
828 So. 2d 602, 605 (La. Ct. App. 2002) (holding that the trial court
did not err by relying upon the conclusions of an expert witness who
reviewed an inadmissible highway safety report because the expert
based his opinions upon his independent assessment of the
evidence); see also Robertson, 954 F.2d at 1435 (rejecting an argument
that an expert should have been allowed to rely upon an
inadmissible highway department materials and concluding “that
the district court did not abuse its discretion by instructing
appellants’ expert witness, pursuant to 23 U.S.C. § 409, to disregard
7
COROLES v. STATE
Opinion of the Court
information compiled or utilized by the [highway depatment] in
formulating his opinion”).
¶17 Moreover, requiring experts to exclude consideration of
confidential information in forming an opinion would not be
impossible, as the defendants in this case suggest. In an analogous
case, Allstate Insurance Co. v. Electrolux Home Products, Inc., a
plaintiff’s expert revealed that he had reviewed information that was
subject to a confidentiality agreement. 840 F. Supp. 2d 1072, 1076
(N.D. Ill. 2012). Because the information was confidential, the expert
did not disclose it to the defendant as required by Federal Rule of
Civil Procedure 26(a)(2). Id. The defendant argued, therefore, that the
federal district court should prohibit the expert from testifying at
trial because the defendant could not properly explore the
foundation of the expert’s opinions. Id. The district court disagreed,
ruling that the “drastic measure” of expert disqualification was
inappropriate. Id. at 1083–84 (internal quotation marks omitted).
Instead, the court ordered the expert to “compartmentalize” the
confidential information and “exclude that information from the
basis for his opinions.” Id. at 1084. The court noted that this task was
similar to that performed by jurors when instructed to disregard
stricken testimony or by a judge when evidence is excluded from a
bench trial. Id. Thus, “[t]o ask an expert to ‘forget’ or exclude
[confidential information] . . . is not an impossibility; rather, it is a
task performed by various individuals in the court system each
day.” Id.
¶18 A similar remedy may be appropriate here. The district
court erred, however, by ordering the per se exclusion of the expert
witnesses without first discovering (1) whether the experts relied
upon the confidential information revealed in the introductory letter
sent by Mrs. Coroles’s attorney or (2) whether the experts are able to
render an opinion without considering the confidential information. 2
In conducting such an investigation, the district court “has
2 It seems unlikely that, in lieu of conducting an independent
assessment of the medical evidence, a reputable medical expert
would rely on a lawyer’s incomplete recitation of some of the
opinions expressed by an anonymous panel composed of a lawyer, a
health care provider, and a lay person tasked with performing an
administrative screening process. Indeed, it is doubtful whether any
substantial reliance upon the opinions expressed by the panel would
support admissible expert testimony. See UTAH R. EVID. 702.
8
Cite as: 2015 UT 48
Opinion of the Court
numerous tools it must employ to prevent unwarranted disclosure of
the confidential information, including the use of sealing and
protective orders, limited admissibility of evidence, orders
restricting the use of testimony in successive proceedings, and,
where appropriate, in camera proceedings.” Spratley v. State Farm
Mut. Auto. Ins. Co., 2003 UT 39, ¶ 22, 78 P.3d 603 (internal quotation
marks omitted). If a district court determines that an expert can
express an opinion without relying on the confidential information,
the expert should not be stricken. Instead, any reference to the
confidential information should be stricken from the expert’s report
and the court should instruct the expert to disregard the confidential
information. See Allstate, 840 F. Supp. 2d at 1081, 1084.
II. EXCLUSION OF THE SUPPLEMENTAL EXPERT WITNESSES
AS A SANCTION FOR THEIR UNTIMELY DESIGNATION UNDER
THE SCHEDULING ORDER
¶19 Rule 16 of the Utah Rules of Civil Procedure gives the
district court “broad authority to manage a case.” Boice ex rel. Boice v.
Marble, 1999 UT 71, ¶ 8, 982 P.2d 565. Under this rule, the court may
“establish[] the time to complete discovery” through a scheduling
order. UTAH R. CIV. P. 16(a)(9). If a party fails to obey a scheduling
order establishing a discovery deadline, the district court “may take
any action authorized by Rule 37(e)” of the Utah Rules of Civil
Procedure. UTAH R. CIV. P. 16(d). The permissible sanctions for
providing untimely discovery include “prohibit[ing] the disobedient
party . . . from introducing designated matters into evidence” (e.g.,
exclusion of the evidence disclosed after the deadline), or “order[ing]
the party or the attorney to pay the reasonable expenses, including
attorney fees, caused by the failure.” UTAH R. CIV. P. 37(e)(2)(B), (E);
see also Boice, 1999 UT 71, ¶ 8 (“If a party fails to obey a date set
under rule 16, the court may sanction the offending party by
excluding evidence the party intends to present.”); id. ¶ 11 (noting
that a court may also order monetary sanctions). 3
¶20 Thus, this court has held that rule 16(d) is the source of the
district court’s authority to sanction a party for producing untimely
discovery under a scheduling order Boice, 1999 UT 71, ¶ 8 & n.3;
Arnold v. Curtis, 846 P.2d 1307, 1309–10 (Utah 1993). We review a
court’s decision whether or not to sanction a party under rule 16(d),
3 On May 1, 2015, rule 37 will be renumbered and the wording of
some of the permissible sanctions will change. We cite the version of
rule 37 in effect prior to May 1, 2015.
9
COROLES v. STATE
Opinion of the Court
as well as the selection of an appropriate sanction, for abuse of
discretion. Boice, 1999 UT 71, ¶¶ 7, 11.
¶21 Here, Mrs. Coroles violated the district court’s scheduling
order when she designated the supplemental expert witnesses after
the deadline. As a sanction for the untimely designations, the court
excluded the experts. But the court did not do so pursuant to rule
16(d), nor did it cite this court’s precedent when it struck the
supplemental experts. Instead, the district court relied upon a line of
cases from the court of appeals and excluded the experts under rule
37(h) of the Utah Rules of Civil Procedure. 4 See Spafford v. Granite
Credit Union, 2011 UT App 401, ¶ 16, 266 P.3d 866 (reviewing the
exclusion of an expert witness designated after the scheduling order
deadline under the standard established in current rule 37(h));
Brussow v. Webster, 2011 UT App 193, ¶¶ 3–4, 258 P.3d 615 (same);
Lippman v. Coldwell Banker Residential Brokerage Co., 2010 UT App 89,
at *2 (same); Posner v. Equity Title Ins. Agency, Inc., 2009 UT App 347,
¶ 23, 222 P.3d 775 (same).
¶22 The difference between the standard for sanctioning a
party under rule 16(d) and the standard for sanctioning a party
under rule 37(h) is meaningful. Rule 16(d) provides that a court
“may” impose a sanction described in rule 37(e) for a failure to abide
by the scheduling order. Rule 37(h), on the other hand, states:
If a party fails to disclose a witness, document or other
material, . . . 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. In addition to or in
lieu of this sanction, the court on motion may take any
action authorized by paragraph (e)(2).
(Emphasis added). While rule 16(d) leaves the decision of whether to
sanction a party to the broad discretion of the district court, rule
37(h) imposes a structure whereby the court “shall” exclude an
4 In its order excluding the supplemental experts, the district
court actually cites rule 37(f), which is the former location of the
current rule 37(h). See UTAH R. CIV. P. 37(f) (2010). It is clear from the
court of appeals cases the district court also cites, as well as a
discussion of the same issue in an order denying a motion for
reconsideration, that the court intended to cite the current rule 37(h).
We note that on May 1, 2015, rule 37(h) will be deleted.
10
Cite as: 2015 UT 48
Opinion of the Court
undisclosed witness “unless” the party shows either harmlessness or
good cause. In other words, rule 37(h) shifts the burden to the
nondisclosing party to show why the undisclosed evidence should
not be excluded.
¶23 The preliminary issue before us, therefore, is whether the
district court employed the correct standard when it applied rule
37(h) rather than rule 16(d) to the question of whether Mrs. Coroles
or her counsel should be sanctioned for violating the scheduling
order. We conclude that there is no reason to deviate from our prior
caselaw endorsing the application of rule 16(d) to these types of
questions. Rule 16 authorizes a district court to set discovery
deadlines, while subsection (d) of this rule specifically permits the
court to sanction a violation of these deadlines. Rule 37(h), on the
other hand, governs when a party “fails to disclose a witness,
document or other material.” Thus, rule 16(d) is applied when
evidence is produced late under the scheduling order, while rule
37(h) is applied when evidence is not disclosed at all. 5 We therefore
repudiate Spafford, Brussow, Lippman, and Posner to the extent that
those cases suggest that rule 37(h) should be applied where
discovery is produced after a scheduling order deadline. See Spafford,
2011 UT App 401, ¶ 16; Brussow, 2011 UT App 193, ¶¶ 3–4; Lippman,
2010 UT App 89, at *2; Posner, 2009 UT App 347, ¶ 23.
¶24 Because those cases led the district court to apply rule
37(h), the court used the wrong standard when it sanctioned Mrs.
Coroles by excluding her supplemental expert witnesses. Although
courts have discretion to sanction parties for violating a scheduling
order, an exercise of discretion guided by an erroneous legal
conclusion is reversible. See State v. Barrett, 2005 UT 88, ¶¶ 15–17, 127
P.3d 682. We therefore reverse the district court’s order excluding
the supplemental experts.
¶25 Because this issue may arise again on remand, we also
address whether the district court has discretion to award the
extreme sanction of witness exclusion on the facts of this case. See
State v. James, 819 P.2d 781, 795 (Utah 1991) (“Issues that are fully
5 Federal caselaw has similarly concluded that the rule
authorizing courts to sanction a party for the untimely designation of
an expert witness under the scheduling order is the analogous rule
16(f) of the Federal Rules of Civil Procedure. Geiserman v. MacDonald,
893 F.2d 787, 790–91 (5th Cir. 1990); see also 3 JAMES WM. MOORE ET
AL., MOORE’S FEDERAL PRACTICE § 16.92[6][a] (3d ed. 2014).
11
COROLES v. STATE
Opinion of the Court
briefed on appeal and are likely to be presented on remand should
be addressed by this court.”).
¶26 We addressed a somewhat analogous factual scenario in
Boice, 1999 UT 71. In that case, a plaintiff in a medical malpractice
case timely designated his expert witnesses. Id. ¶¶ 4, 7. But about
six-and-a-half months after the deadline to designate expert
witnesses, and about two months before trial, one of the plaintiff’s
experts informed him that he no longer intended to testify. Id. Eight
days later, the plaintiff moved to designate a substitute expert, but
the district court denied the motion because it was not timely under
the scheduling order. Id. ¶ 7. The court subsequently granted
summary judgment in favor of the defendants because the plaintiff
could no longer produce a necessary expert witness. Id. ¶ 5.
¶27 On appeal, we held that the district court had abused its
discretion. We noted that the plaintiff had obeyed the scheduling
order and that he was required to designate a replacement expert
only because of circumstances beyond his control. Id. ¶ 11.
Moreover, we observed that the plaintiff moved to substitute
witnesses before the discovery cutoff date, and two months before
the trial date. Id. Finally, we noted that the district court could have
postponed the trial date or ordered the plaintiff to pay any
additional costs associated with the substitution of the expert
witness in order to obviate any prejudice to the defendants. Id.
¶28 Similar to the plaintiff in Boice, Mrs. Coroles also
designated her initial expert witnesses by the deadline established in
the scheduling order. She likewise promptly designated replacement
experts two weeks after the defendants moved to exclude her initial
experts. In some respects, Mrs. Coroles was even less deserving of a
witness exclusion sanction than the Boice plaintiff. Mrs. Coroles
designated her replacement experts three months before the
deadline to complete expert depositions, and a trial date had not
even been set. Thus, the only prejudice identified by the district
court for allowing the replacement experts to testify would be the
need for a new scheduling order and a potential delay in the
eventual trial date.
¶29 It is true that Mrs. Coroles’s situation is somewhat less
sympathetic than that of the plaintiff in Boice because the potential
need for replacement experts in this case was caused by her lawyer’s
violation of a confidentiality statute. But there is every indication
that counsel’s decision to reveal the confidential information was
12
Cite as: 2015 UT 48
Opinion of the Court
based upon his misreading of the law rather than any intentional
misconduct. And, “[a]s a general rule, when the fault lies solely with
the attorneys, the impact of the sanction should be lodged with the
attorneys.” 3 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE
§ 16.92[4] (3d ed. 2014) (describing caselaw interpreting rule 16 of the
Federal Rules of Civil Procedure). Moreover, where the exclusion of
an expert is tantamount to the dismissal of the lawsuit, as is the case
here, the district court should exercise restraint in choosing this
grave step rather than a lesser sanction. Id. § 16.92[5][c][i]; see also
Welsh v. Hosp. Corp. of Utah, 2010 UT App 171, ¶ 10, 235 P.3d 791
(“Excluding a witness from testifying is . . . extreme in nature and . . .
should be employed only with caution and restraint.” (alterations in
original) (internal quotation marks omitted)). Thus, under the facts
of this case, the exclusion of Mrs. Coroles’s supplemental witnesses
as a sanction for violating the scheduling order would be an abuse of
discretion. 6
CONCLUSION
¶30 We reverse both the district court’s order excluding Mrs.
Coroles’s original expert witnesses and the resulting summary
judgment. On remand, the district court may exclude these experts
only if it finds that they relied upon the confidential information in
forming their opinions and that the experts cannot express an
opinion at trial without relying upon the confidential information.
¶31 If the district court permits the original experts to testify,
the court’s exclusion of the supplemental experts will become a moot
issue. But if the district court excludes the original experts, we also
6 In the district court’s order excluding the supplemental
experts, the court noted that Mrs. Coroles never sought leave to
serve the late expert witness designations. It appears that the district
court took this into account when sanctioning Mrs. Coroles. We are
aware of no rule, however, requiring a party to seek permission or
forgiveness before serving a late designation. Nor does the
scheduling order contain any such requirement. Because rule 16(d)
only authorizes a court to sanction a party for a failure to obey a
scheduling order, the fact that Mrs. Coroles did not seek permission
to serve the untimely witness designations is not an independent
reason to sanction her. District courts could, of course, include in the
scheduling order a requirement that a party seek permission before
serving a late designation. In that hypothetical scenario, a court
could choose to sanction a party for violating that requirement.
13
COROLES v. STATE
Opinion of the Court
reverse the district court’s order excluding the supplemental expert
witnesses. If it becomes necessary for the court to address the issue
of sanctions for the untimely designation of the replacement experts,
the court may choose a sanction short of exclusion of the experts if it
determines a sanction is appropriate under rule 16(d).
14