Baumann v. Kroger Co.

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 80IN THE
SUPREME COURT OF THE STATE OF UTAH
KARI L. BAUMANN,
Appellant,
v.
THE KROGER COMPANY and
GREGORY P. TAYLER,
Appellees.
No. 20160686
Filed November 20, 2017
On Certiorari to the Utah Court of Appeals
Fourth District, Heber
The Honorable Fred D. Howard
No. 130500017
Attorneys:
Gregory W. Stevens, Salt Lake City, for appellant
Todd C. Hilbig, Andrea M. Keysar, Salt Lake City,
for appellee The Kroger Company
Carolyn Stevens Jensen, Jennifer M. Brennan, Salt Lake City,
for appellee Gregory P. Tayler, M.D.
JUSTICE HIMONAS authored the opinion of the Court,
in which JUSTICE DURHAM and JUSTICE PEARCE joined.
ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion,
in which CHIEF JUSTICE DURRANT joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶ 1 Kari Baumann sued her physician and her pharmacy for
overprescribing medication. But Ms. Baumann failed to designate
BAUMANN v. KROGER
Opinion of the Court
any expert on the applicable standards of care until the day on
which the district court had scheduled the summary judgment
hearing. Even then, she only designated an expert on the
pharmacy’s standard of care, not the physician’s. Applying the
standard in rule 26 of the Utah Rules of Civil Procedure, the
district court excluded the late-designated expert. It then awarded
summary judgment to both defendants based on its determination
that without expert testimony Ms. Baumann would be unable to
show that either the physician or the pharmacy had violated the
applicable standard of care.
¶ 2 On appeal to the court of appeals, Ms. Baumann argued
that the district court should have applied rule 16, instead of
rule 26, in assessing whether to exclude the expert that she
designated. She also argued that the district court erred in failing
to give her more of an opportunity to procure and designate an
expert on the physician’s standard of care—even though she did
not ask for more time and did not otherwise give any indication
that such an expert would be forthcoming.
¶ 3 The court of appeals correctly held that Ms. Baumann
had failed to preserve her argument that the district court ought
to have given her more time to find an expert on the physician’s
standard of care. The court of appeals also upheld the district
court’s grant of summary judgment to the pharmacy. But even
though the pharmacy had argued that Ms. Baumann had failed to
preserve her argument that the district court should have applied
rule 16, the court of appeals resolved this issue on the merits. It
also reached out and decided an issue that had not been briefed to
it—whether the district court had abused its discretion under
rule 26—reaching the right result but announcing an erroneous
rule of law in the process.
¶ 4 We correct the court of appeals’ legal error and affirm
the court of appeals on the alternative ground that Ms. Baumann
failed to preserve any of the issues she appealed.
BACKGROUND
¶ 5 Kari L. Baumann sued her physician (Dr. Gregory P.
Tayler) and her pharmacy (Smith’s, nom de guerre of The Kroger
Company), accusing them of overprescribing drugs. But she did
not designate any experts on the applicable standards of care for
physicians or pharmacies until after the discovery deadlines had
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all passed and the defendants’ summary judgment motion—
rooted in the proposition that the standards of care related to
prescribing and dispensing blood pressure medication could only
be proved by expert testimony—had been fully briefed. Indeed, it
was not until the day originally set for the summary judgment
hearing that Ms. Baumann attempted to designate an expert on
the pharmacy’s standard of care. 1 She never designated an expert
on the physician’s standard of care.
¶ 6 The district court granted summary judgment in favor of
the physician and the pharmacy. Based on established Utah law, it
ruled that Ms. Baumann could not make out a prima facie case
without expert testimony about the applicable standards of care.
See, e.g., Dalley v. Utah Valley Reg’l Med. Ctr., 791 P.2d 193, 195–96
(Utah 1990) (“To establish the standard of care required of a
physician in a particular field, breach of that standard, and
proximate cause, the plaintiff is generally required to produce an
expert witness who is acquainted with the standards of care in the
same or a similar field as the defendant doctor.” (citations
omitted)). Based on this law, the court awarded summary
judgment to both the pharmacy and the physician. It awarded
summary judgment to the physician because Ms. Baumann had
never submitted an expert report on the physician’s standard of
care. And it awarded summary judgment to the pharmacy
because, even though Ms. Baumann had submitted an expert
report on the pharmacy’s standard of care, she had submitted it
late for no good reason—which, the district court ruled, meant
that she could not rely on it at trial. See UTAH R. CIV. P. 26(d)(4)
(“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.”).
1 The district court initially scheduled oral argument on
defendants’ summary judgment motion for November 17, 2014.
At the hearing, Ms. Baumann’s husband sought to speak for her.
The district court sustained an objection to proceeding in this
manner, but granted Ms. Baumann a continuance to January 5,
2015, to either obtain counsel or represent herself.
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Opinion of the Court
¶ 7 On appeal to the Court of Appeals, Ms. Baumann made
two arguments why the district court erred in excluding her late-
designated expert and granting summary judgment on that basis.
First, citing our recent decision in Coroles v. State, 2015 UT 48, 349
P.3d 739, she argued that the appropriate sanction for late
discovery is the more forgiving standard set forth in rule 16 of the
Utah Rules of Civil Procedure instead of the sanction for late
discovery articulated in rule 26.2 Notwithstanding the fact that
she had never asked the district court to apply rule 16—and,
indeed, attempted to lodge her expert report “under URCP 26”—
Ms. Baumann argued that the district court erred when it
applied the sanction for late discovery in rule 26 instead of the
sanction in rule 16. Noting that she had been proceeding pro se,
Ms. Baumann also argued that the district court abused its
discretion in finding that no good cause excused Ms. Baumann’s
decision to file her expert report late.
¶ 8 In addition to challenging the district court’s decision to
exclude the late-designated expert on the pharmacy’s standard of
care, Ms. Baumann also argued that the district court should have
sua sponte postponed ruling on the physician’s motion for
summary judgment and extended the discovery deadlines to
allow Ms. Baumann the opportunity (if she were so inclined) to
find and designate an expert on the applicable physician’s
standard of care. Even though the district court had not applied
rule 26 to exclude an expert on the physician’s standard of care—
there was, after all, no expert to exclude—Ms. Baumann argued to
the court of appeals that the district court abused its discretion
because it failed to consider whether postponing the summary
judgment hearing and allowing Ms. Baumann to locate an expert
on the physician’s standard of care would have been harmless. See
2 Rule 16 provides that if a party fails to obey a pretrial order
“the court, upon motion or its own initiative, may take any action
authorized by Rule 37(b).” UTAH R. CIV. P. 16(d). Rule 37(b), in
turn, permits (but does not require) a wide array of sanctions,
ranging from dismissal of the action to a stay or payment of
reasonable costs, expenses, and attorney fees caused by the
failure. Id. 37(b). Thus, unlike rule 26, rule 16 gives the court much
wider discretion in deciding what, if any, sanction to impose.
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UTAH R. CIV. P. 26(d)(4) (exclude late-disclosed discovery “unless
the failure is harmless or the party shows good cause for the
failure”).
¶ 9 Both the pharmacy and the physician filed response
briefs. The physician argued, among other things, that
Ms. Baumann’s challenge to the district court’s “exclusion” of a
nonexistent expert on the physician’s standard of care was
unpreserved—a textbook example of an issue that has not been
“presented to the [district] court in such a way that the . . . court
has an opportunity to rule on” it. In re Adoption of Baby E.Z., 2011
UT 38, ¶ 25, 266 P.3d 702 (citation omitted).
¶ 10 The pharmacy likewise argued preservation:
In this case, the only issue that Ms. Baumann seeks
review of on appeal with regard to . . . her claims
against Smith’s Pharmacy is whether ‘the District
Court abused its discretion under Rule 16(d) of the
Utah Rules of Civil Procedure by excluding an
untimely expert report submitted by a pro se party
when the Court decided the Defendants-Appellees’
motion for summary judgment.’ However,
Ms. Baumann . . . does not provide any citation to
the record showing that this issue was preserved in
the district court. Ms. Baumann also fails to set forth
a statement of grounds for seeking review of this
unpreserved issue.
¶ 11 In the event that the court of appeals reached the merits,
the pharmacy further argued that the district court had not
abused its discretion in applying rule 26 instead of rule 16. It
argued that Coroles required the application of the more forgiving
sanctions in rule 16 only when discovery, even though disclosed
late, is nonetheless disclosed well before trial or a hearing on a
dispositive motion (not the case here). And it argued that,
regardless of whether rule 16 or rule 26 applied, the court had
ample justification for excluding the expert report under the
circumstances of the case; Ms. Baumann had agreed to an
extended discovery schedule and still failed to make the requisite
disclosures until the very day that the summary judgment hearing
was first scheduled—months after the applicable discovery
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Opinion of the Court
deadlines and after a summary judgment motion predicated on
Ms. Baumann’s failure to designate experts had been fully briefed.
¶ 12 The court of appeals upheld the district court’s decision.
It first agreed that Ms. Baumann’s appeal was unpreserved as it
pertained to the physician. Baumann v. Kroger Co., 2016 UT App
165, ¶ 10, 381 P.3d 1135. The court of appeals then turned to the
district court’s refusal to consider Ms. Baumann’s late-filed expert
report on the pharmacy’s standard of care. Leaping over the
pharmacy’s preservation argument, the court of appeals held that
the district court did not err in applying rule 26, instead of rule 16,
reasoning that, under Coroles, “rule 26 is controlling” where a
litigant “fail[s] to disclose her expert witness until the day of the
hearing on” a dispositive motion. Id. ¶ 19.
¶ 13 While the court of appeals did not address the
pharmacy’s preservation argument, it did consider an argument
that Ms. Baumann had not made—the argument that the district
court erred in failing to make an explicit finding that allowing
Ms. Baumann to offer the late-designated expert would have been
prejudicial to the pharmacy. 3 Reaching out beyond the briefing
before it, the court of appeals held that the district court was not
required to make this finding: “[i]t is well settled that a district
court’s exclusion of materials may be supported if the court makes
a finding that there is either no good cause for the failure or that
the failure is harmful.” Id. ¶ 18 n.8 (emphases omitted) (citations
omitted). Thus, because the district court had found that there
was no good cause for Ms. Baumann’s violation of the discovery
schedule, the court of appeals held that it did not need to consider
whether that violation was harmless.
¶ 14 We granted certiorari and now affirm the court of
appeals, but on different grounds. Utah Code section 78A-3-
102(3)(a) gives us jurisdiction.
3
Ms. Baumann had argued that the district court erred in
failing to consider whether allowing Ms. Baumann to designate an
expert with respect to the physician would have been harmless,
but she did not make the same argument with respect to the
district court’s exclusion of the late-designated expert on the
pharmacy’s standard of care.
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STANDARD OF REVIEW
¶ 15 “On certiorari, we review for correctness the decision of
the court of appeals, not the decision of the trial court.” State v.
Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096 (citation omitted). “The
correctness of the court of appeals’ decision turns, in part, on
whether it accurately reviewed the trial court’s decision under the
appropriate standard of review.” Id. (citation omitted). It also
turns on whether it correctly assessed preservation of the issues
before it. Prinsburg State Bank v. Abundo, 2012 UT 94, ¶ 11, 296 P.3d
709.
ANALYSIS
¶ 16 But for a set of procedural irregularities that we address
below, this is among the simplest of cases for an appellate court to
resolve. On certiorari to this court, Ms. Baumann argues (1) that
the district court erred in applying rule 26 instead of rule 16 to the
expert report on the pharmacy’s standard of care and (2) even if
rule 26 applies, that the district court abused its discretion in
failing to consider whether allowing the late-designated expert
would have been harmless.
¶ 17 First, Ms. Baumann’s argument that the district court
erred in applying rule 26, instead of rule 16, to the expert report
on the pharmacy’s standard of care is unpreserved. Ms. Baumann
never asked the district court to admit the late-designated expert
report under rule 16. Instead, she virtually invited the court to
apply rule 26. In a document styled “Plaintiff’s URCP 26 Expert
Report in Response to Reply to Memorandum in Support of
Statement Opposing Defendants’ Motion for Summary
Judgment,” Ms. Baumann submitted the expert report “under
URCP 26.” This submission arguably invited the district court to
apply rule 26 instead of rule 16. See State v. McNeil, 2016 UT 3,
¶ 17, 365 P.3d 699 (”Under the doctrine of invited error, an error is
invited when counsel encourages the trial court to make an
erroneous ruling.”). And this error is not excused by
Ms. Baumann’s pro se status. See Allen v. Friel, 2008 UT 56, ¶ 11,
194 P.3d 903 (emphasizing that, “[a]s a general rule, a party who
represents himself will be held to the same standard of knowledge
and practice as any qualified member of the bar” (alteration in
original) (citation omitted)).
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Opinion of the Court
¶ 18 At minimum, Ms. Baumann did not preserve her
argument that the district court erred in applying rule 26’s
sanctions instead of the more forgiving standard set forth in rule
16. And, on appeal, she does not argue that the plain error
doctrine or exceptional circumstances warrant our reaching this
unpreserved issue. Cf. Coleman ex rel. Schefski v. Stevens, 2000 UT
98, ¶ 9, 17 P.3d 1122 (“[B]ecause Mr. Coleman did not properly
raise these three issues in the trial court and thereby preserve
them for appellate review, and because he argued plain error or
manifest injustice for the first time in his reply brief, we decline to
review them.”). Therefore, even if the invited error doctrine does
not apply, see McNeil, 2016 UT 3, ¶ 17 (purpose of invited error
doctrine is to discourage “intentionally”—not inadvertently—
“misleading” the district court) (citation omitted), Ms. Baumann
has waived this issue.
¶ 19 Second, Ms. Baumann did not argue to the court of
appeals that the trial court abused its discretion when it failed to
consider whether allowing the late-designated expert to testify
would have been harmless—i.e., when it failed to expressly hold
that exclusion was appropriate under rule 26 because allowing the
expert to testify would have prejudiced the pharmacy. Instead,
Ms. Baumann argued that the district court abused its discretion
in applying rule 26 to exclude “an additional expert report
applicable to the doctor,” not the pharmacy. At one point, she
(somewhat confusingly) argued that this decision was error
because the district court’s “sole basis . . . was that Ms. Baumann
. . . did not establish good cause that excused her failure to file”—
when, in fact, this was the basis for the court’s decision to exclude
the late-designated expert on the pharmacy’s standard of care. But
it is clear in context that Ms. Baumann’s argument to the court of
appeals was that the district court’s conclusion that “an additional
expert report [, i.e., an expert report on the physician’s standard of
care,] should be excluded . . . constitute[d] an abuse of discretion.”
Indeed, in her court of appeals reply brief, Ms. Baumann
conceded that this portion of her argument focused on the
undisclosed expert on the physician’s standard of care, and she
asked the court of appeals to apply the exceptional circumstances
doctrine to reach this issue—a request she does not renew before
us.
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¶ 20 In any event, Ms. Baumann made no attempt to show
that admitting the late-designated expert evidence on the
pharmacy’s standard of care—evidence on whose absence the
pharmacy relied in briefing multiple trial court memoranda in
support of summary judgment—would have been harmless.
Indeed, as we have explained, Ms. Baumann makes the argument
that the district court should have applied rule 26 to find that
allowing expert testimony on the pharmacy’s standard of care
would have been harmless for the first time before this court. And
she does not ask us either to apply the plain error doctrine or to
find that exceptional circumstances exist. Accordingly, this point,
too, is waived.
¶ 21 Finally, there is no question that the court of appeals got
it right when it affirmed the district court’s decision to grant
summary judgment in favor of the physician in this case. As the
court of appeals put it, “the district court could not have abused
its discretion in not making a ruling it was never asked to make.”
Baumann v. Kroger Co., 2016 UT App 165, ¶ 11, 381 P.3d 1135.
Moreover, Ms. Baumann’s brief to this court does not ask us to
accord any relief that would require the district court to exhume
the cause of action Ms. Baumann pleaded against her physician.
We therefore affirm the court of appeals on this ground; the
district court was right to grant summary judgment in favor of Dr.
Tayler.
¶ 22 In a clean case, this would be the end of the matter. The
problem is that the court of appeals looked past the pharmacy’s
preservation arguments to the merits of whether the district court
should have applied rule 16 instead of rule 26 in deciding to
exclude the late-designated expert. See id. ¶¶ 17–22. The court of
appeals also chose to address an issue that neither party had
briefed—whether a litigant must show both good cause and
harmlessness before his or her discovery violation is excused
under rule 26. See id. ¶ 18 n.8. 4 And, on appeal, the pharmacy does
4
The court of appeals was wrong to hold that a litigant may
obtain relief from a discovery violation under rule 26 only if he or
she can show both that the violation was excused by good cause
and that no prejudice would come from excusing the violation. See
Baumann v. Kroger Co., 2016 UT App 165, ¶ 18 n.8, 381 P.3d 1135(cont.)
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BAUMANN v. KROGER
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not expressly argue that the court of appeals erred in disregarding
the preservation requirement or in resolving an issue that had not
been briefed to it—a failure that raises the specter of inadequate
briefing, given that, on certiorari, our court sits to review the court
of appeals. See Butterfield v. Okubo, 831 P.2d 97, 101 n.2 (Utah 1992)
(“[W]hen exercising our certiorari jurisdiction . . . we review a
decision of the court of appeals, not of the trial court. Therefore,
the briefs of the parties should address the decision of the court of
appeals, not the decision of the trial court.” (citation omitted)).
(Because “[i]t is well settled that a district court’s exclusion of
materials may be supported if the court makes a finding that there
is either no good cause for the failure or that the failure is harmful
. . . . it is unnecessary for us to examine whether there was harm.”
(citations omitted)). But as the court of appeals has recognized
elsewhere, a showing of either one of good cause or harmlessness
is enough to avoid sanction under rule 26. Both do not need to be
shown. See Dahl v. Harrison, 2011 UT App 389, ¶ 22, 265 P.3d 139(“[T]he language of rule [26(d)(4) of the Utah Rules of Civil
Procedure] makes the filing of adequate expert reports a condition
precedent to testimony by the experts at trial, unless the failure to
disclose is harmless or the party shows good cause for the failure
to disclose. Here, the court expressly found that neither of those
exceptions was applicable.” (emphasis added) (footnote omitted)
(citation omitted) (internal quotation marks omitted)).
We are not unaware that we have now reached out to correct
the court of appeals’ erroneous statement of law on an issue that
we have found unpreserved, even as we explain that appellate
courts ought not to reach unpreserved issues. While we are
tempted, on this point, simply to take solace in our infallibility, see
Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring)
(“We are not final because we are infallible, but we are infallible
only because we are final.”), we ultimately conclude that it is
appropriate to reach this question because it is squarely within the
purview of a supreme court to superintend the proper
interpretation of the procedural rules by correcting misleading
dicta in appellate opinions. Cf. Patterson v. Patterson, 2011 UT 68,
¶ 20, 266 P.3d 828 (“As the state’s highest court, we have a
responsibility to maintain a sound and uniform body of precedent
. . . .”).
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¶ 23 Notwithstanding these irregularities, we ultimately
conclude that we may—and should—pierce through the court of
appeals’ merits decision to reach the preservation problems
within.
¶ 24 First, while the pharmacy has not explicitly stated that
the court of appeals erred in failing to affirm the district court on
preservation grounds, it has done everything short of that. It has
cogently explained why the issues were unpreserved at the
district court level, and it has pointed out deficiencies in
Ms. Baumann’s appellate briefs—thereby giving Ms. Baumann
ample opportunity to respond. Moreover, unlike in a case where a
party ignores analysis undertaken by the court of appeals, here
the court of appeals simply did not analyze the preservation
problems that had been put before it. Cf. Scott v. Scott, 2017 UT 66,
¶ 19, —P.3d— (we will be less inclined to conclude that the court
of appeals erred in reaching an unpreserved issue “where the
court of appeals explain[s] its rationale for reaching [that]
arguably unpreserved issue”). While that was the misstep around
which the pharmacy should have oriented its brief to this court, in
this case neither judicial economy nor fairness would be advanced
by declining to resolve this case on preservation grounds—
especially given that the preservation issue is otherwise squarely
briefed to us. See Fort Pierce Indus. Park Phases II, III & IV Owners
Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218 (the point of
preservation is to promote fairness and judicial economy).
¶ 25 Second, the pharmacy prevailed in the district court and
the court of appeals. And while the court of appeals ultimately
reached the merits of Ms. Baumann’s unpreserved argument, it
did not explain why. Because of this, Ms. Baumann has
consistently born the burden of persuasion throughout her
appeal. See Broderick v. Apartment Mgmt. Consultants, L.L.C., 2012
UT 17, ¶ 19, 279 P.3d 391 (“[A]ppellants bear the burden of
persuasion on appeal . . . .” (citations omitted)); see also Scott, 2017
UT 66, ¶ 19 (when the court of appeals gives reasons for reaching
an arguably unpreserved issue, the appellee on certiorari may
sometimes have a burden to “do more than just point out that the
issue was unpreserved in the district court”). But she has never
sought to argue that we should reach the obviously unpreserved
issues in this case under either our plain error or exceptional
circumstances doctrine. An appellant can hardly carry her burden
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of persuasion on an unpreserved issue if she does not do a plain
error or exceptional circumstances analysis because, in failing to
do such an analysis, she will have necessarily failed to explain
why we should reach the issue of which she complains. See State v.
Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (“As we have noted many
times before, this court is not a depository in which the appealing
party may dump the burden of argument and research.” (internal
quotation marks omitted) (citations omitted)); see also State v.
Crabb, 2011 UT App 440, ¶ 7 n.2, 268 P.3d 193 (inadequate briefing
where “reasoned analysis and application of the plain error
elements are lacking”). Moreover, we do not believe it would be
prudent to follow the court of appeals’ lead and reach the
unpreserved issue in this case. One of the most important
purposes of preservation is that it allows an issue to be fully
factually, procedurally, and legally developed in the district court.
The preservation rule thus enables us to analyze both the
application of a legal rule or principle to a concrete and well-
developed dispute and, nearly as important, the effect of the
district court’s ruling on the overall course of the proceedings
below. The preservation rule also gives the appellate court the
benefit of a trial judge’s reasoning and analysis on the issue at
hand. This is especially helpful in a case, like this one, involving
the correct interpretation and application of precedent
interpreting the Utah Rules of Civil Procedure—rules that our
district courts live and breathe every day.
¶ 26 On the merits, this case calls for a clarification of Coroles
v. State, 2015 UT 48, 349 P.3d 739. The issue is under what
circumstances Coroles requires district courts to apply the
sanctions set forth in rule 16 of the Utah Rules of Civil Procedure
as opposed to those articulated in rule 26. This is the kind of
procedural issue on which it would be helpful for this court to
have a full record developed below—one that illustrates the
thinking of our district courts on this question and contains
factual development bearing on what range of sanctions might fall
within the appropriate exercise of a district court’s discretion.
Such a developed record will naturally sharpen the issues and
help us reach a wiser and better considered opinion.
CONCLUSION
¶ 27 Ms. Baumann did not preserve her claims that the
district court ought to have applied rule 16 instead of rule 26 and
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that it abused its discretion in declining to find, on the record, that
admitting a late-filed expert report whose absence had been the
very predicate of all summary judgment proceedings would have
been harmless. The court of appeals’ decision is affirmed on these
alternative grounds; footnote 8 is vacated.
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring in
the judgment:
¶ 28 I concur in every element of the majority opinion except
for footnote 4. That footnote, as the court concedes, “reache[s]
out” to decide an issue “that we have found
unpreserved.” Supra ¶ 22 n.4. We are doing so, moreover, in a
case in which we are reversing the court of appeals for
improperly reaching an unpreserved issue.
¶ 29 This strikes me as a double standard. We are an
appellate court. And we are as subject to the law of preservation
as is the court of appeals. We should heed the lessons of our own
opinions. When we fail to do so we create the impression that we
have confused the finality of our decisions with the infallibility of
our decisionmaking.
¶ 30 Our court does have power to “superintend the proper
interpretation of the procedural rules.” Supra ¶ 22 n.4. But our
authority to do so is hardly unbounded. We “superintend” the
rules through the proper exercise of appellate jurisdiction. Or by
the promulgation or amendment of our rules of procedure. But
not by dropping a footnote resolving an issue that is not properly
presented for our decision.
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