Berger v. Ogden Regional Medical Center

2020 UT App 85THE UTAH COURT OF APPEALS
ROBERT BERGER, JACK BERGER, AND THE ESTATE OF BONNIE BERGER,
Appellants,
v.
OGDEN REGIONAL MEDICAL CENTER, MOUNTAINSTAR HEALTH
CARE, MOUNTAINSTAR CARDIOVASCULAR, JOSEPH GRAHAM,
DANIEL J. GREENBERG, AND D. SCOTT STANLEY,
Appellees.
Opinion
No. 20190206-CA
Filed June 4, 2020
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 140904377
Brett D. Cragun, Attorney for Appellants
Eric P. Schoonveld, and Justin W. Pendleton,
Attorneys for Appellees Ogden Regional Medical
Center, and Mountainstar Health Care
Christian W. Nelson, Brandon B. Hobbs, and Sean C.
Miller, Attorneys for Appellees Joseph Graham, and
Mountainstar Cardiovascular
Brian P. Miller, Christopher W. Droubay, and
Nathanael J. Mitchell, Attorneys for Appellees Daniel
J. Greenberg and D. Scott Stanley
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 In this medical malpractice case, Robert Berger, Jack
Berger, and the Estate of Bonnie Berger (collectively, the Bergers)
appeal the district court’s summary judgment in favor of Ogden
Berger v. Ogden Regional Medical Center
Regional Medical Center, Mountainstar Health Care,
Mountainstar Cardiovascular, Joseph Graham, Daniel J.
Greenberg, and D. Scott Stanley (collectively, Defendants). The
Bergers contend that the district court erred in rejecting their
effort to rely on the doctrine of res ipsa loquitur, in denying their
request to extend the expert discovery deadlines, and in granting
summary judgment to Defendants on the ground that they had
not designated any expert witnesses and thus could not establish
their medical malpractice claim. We affirm.
BACKGROUND 1
¶2 On May 31, 2011, Bonnie Berger underwent robotic lung
surgery at Ogden Regional Medical Center under Defendants’
care. The purpose of the surgery was to evaluate her for
non-small cell carcinoma and to remove the lower lobe of one
lung. During the surgery, Bonnie 2 developed possible arterial
bleeding, became hypotensive, and suffered an anoxic brain
injury. She emerged from surgery unresponsive and died a week
later.
¶3 The Bergers filed a medical malpractice lawsuit against
Defendants in 2014. In their complaint, the Bergers alleged that
Defendants had deviated from the standard of care in the
following ways:
1. When reviewing the grant of summary judgment, “this court
views the facts in a light most favorable to the losing part[ies]
below”—here, the Bergers. See Goodnow v. Sullivan, 2002 UT 21,
¶ 7, 44 P.3d 704 (cleaned up).
2. Where relevant individuals share the same last name, we refer
to them by their first names, with no disrespect intended by the
apparent informality.
20190206-CA 2 2020 UT App 85Berger v. Ogden Regional Medical Center
a. Improper preparation took place prior to
surgery;
b. Surgical and anesthetic management were not
properly attentive and responsive to changes in
[Bonnie’s] hemodynamic status;
c. The resuscitation efforts were not timely given
the significant loss of blood volume from the
bleeding artery, there was a lack of readily
available replacement blood, and there was not
proper intravenous access to reestablish the
patient’s blood volume.
d. There is [a] question regarding the continuity of
care regarding whether the primary anesthesia
provider was present in the operating room at the
time [Bonnie] began to decline and/or whether
there was proper transfer of care of the patient
from the primary anesthesia provider to his
replacement; and
e. Other deficiencies which may be noted after
proper discovery.
¶4 Over the course of the next three years, the parties
stipulated to extending the discovery deadlines seven times,
which the district court allowed in each instance. Fact discovery
finally closed on February 22, 2018. The Bergers’ deadline to
disclose the identity of any expert witnesses was one week later,
on March 1, 2018.
¶5 The day before the deadline, the Bergers moved for more
time to disclose their expert witnesses. In support of their
motion, the Bergers asserted that, as a result of fact discovery,
they “believe[d] the injury sustained by Bonnie Berger . . . was of
a type that did not occur in the absence of negligence and
20190206-CA 3 2020 UT App 85Berger v. Ogden Regional Medical Center
therefore expert testimony may not be necessary in this case
under the doctrine of res ipsa loquitur.” The Bergers stated their
intention to file a separate motion asking the court to determine
whether res ipsa loquitur applied to the facts of the case, and
they urged the court to extend the expert deadlines “until the
determination regarding the applicability of res ipsa loquitur is
reached.” If res ipsa loquitur applied, the Bergers asserted, the
parties could “avoid the time and expense” of unnecessary
discovery. On the other hand, if res ipsa loquitur did not apply,
the parties could “proceed with expert discovery in the normal
course.”
¶6 On March 7, 2018, the Bergers filed a motion asking the
court to determine whether there was adequate foundation for a
jury instruction on the doctrine of res ipsa loquitur. See generally
Model Utah Jury Instructions 2d CV327 (2018). In so doing, the
Bergers moved from the specific theories set out in their
complaint to a much more generalized theory premised on the
doctrine. According to the Bergers, res ipsa loquitur applied to
the facts of the case because Bonnie’s injury “was of a kind
which in the ordinary course of events, would not have
happened had [Defendants] used due care,” and the jury
therefore could infer Defendants’ fault without the need for
expert testimony. The Bergers argued that “it is within the
knowledge and experience of laypersons that a person with a
healthy brain does not usually go into the operating room for
lung surgery and emerge with a brain injury without some
occurrence of negligence.” They further argued that “[t]here is
no need for an expert to explain what is readily within the
knowledge of laypersons” and that the burden should shift to
Defendants to show that they were not negligent.
¶7 Defendants opposed the Bergers’ request for a res ipsa
loquitur jury instruction. Disagreeing with the Bergers’ position
that it would be common knowledge that Bonnie’s injury would
not have occurred absent negligence, Defendants asserted that
20190206-CA 4 2020 UT App 85Berger v. Ogden Regional Medical Center
“[n]one of the issues in this case are within the common
knowledge of lay jurors,” including “non-small cell carcinoma,
robotic surgery, anesthesia techniques, and hospital blood
procedures and administration.” As a result, Defendants
asserted, res ipsa loquitur had no application to the case and the
Bergers were subject to the general rule that expert testimony is
required to establish a medical malpractice claim. In the
meantime, Defendants disclosed their own experts.
¶8 Defendants also opposed the Bergers’ motion to extend
the expert discovery deadlines, arguing that no good cause
existed to justify an extension. Defendants asserted that the
Bergers had known the facts underlying the motion “for months,
if not years,” and that the Bergers “should have either
designated experts or simply expressed their intention to rely on
the doctrine of res ipsa loquitur.” Noting that “designating
experts would not necessarily preclude them from relying on the
doctrine,” Defendants characterized the Bergers’ motion as an
attempt to have the court “decide for them if they should
designate experts” and asserted that the Bergers “should not get
an extension just in case they are wrong” about the applicability
of res ipsa loquitur.
¶9 After hearing oral argument on the issue of res ipsa
loquitur, the district court denied the Bergers’ motion for a jury
instruction on the doctrine. The court agreed with Defendants,
ruling that “this is not the type of case where a layman could
determine whether the event causing the damage is of a type
that ordinarily would not happen except for someone’s
negligence” and that the doctrine of res ipsa loquitur therefore
was inapplicable. (Cleaned up.)
¶10 Thereafter, Defendants moved for summary judgment,
asserting they were entitled to judgment as a matter of law. They
argued that because the Bergers had not timely disclosed any
experts, the Bergers would be unable to meet their burden at
20190206-CA 5 2020 UT App 85Berger v. Ogden Regional Medical Center
trial to establish, by expert testimony, the elements of their
claim, including the applicable standard of care, a breach of that
standard, and causation.
¶11 In opposing Defendants’ motion, the Bergers countered
that they had timely moved to extend the discovery deadlines
before their expert designations were due and that their motion
remained pending. The Bergers also explained that, while not
seeking to delay the case, they had pursued their res ipsa
loquitur theory to see if it could “eliminate or refine the need for
expert discovery . . . and potentially expedite the disposition” of
the case. They further argued that Defendants had not been
harmed by, and the Bergers had not gained advantage from, the
fact that Defendants were the first to designate expert witnesses.
The Bergers also maintained that good cause existed to extend
the expert discovery deadlines. Yet they conceded that if the
court did not allow them additional time to designate expert
witnesses, they would be without expert testimony and
Defendants would be entitled to summary judgment.
¶12 The court heard oral argument on the pending motions
and entered rulings. First, it denied the Bergers’ motion to
extend the discovery deadlines, explaining that rule 26 of the
Utah Rules of Civil Procedure requires that “if a party fails to
designate a witness by the appropriate deadline, that party may
not be permitted to use that witness at trial.” The court then
found that the Bergers’ undisputed failure to designate experts
by the March 1, 2018 deadline was “not harmless because it
precipitated Defendants disclosing their expert information out
of sequence, and without the benefit of the information to which
they are entitled under Rule 26(a)(4)(C).” It also found that the
Bergers’ failure to disclose experts “was not the result of good
cause.” According to the court, the Bergers “had every
opportunity to designate their experts and they simply failed to
do so.” Bonnie’s surgery “happened seven years” before, the
lawsuit itself had been “pending for over four years,” and there
20190206-CA 6 2020 UT App 85Berger v. Ogden Regional Medical Center
had been “a number of extensions for discovery deadlines.”
Although the Bergers elected to proceed under a res ipsa
loquitur theory of liability, the court reasoned that their
“decision to proceed in such a manner did not obviate the
requirement to designate expert witnesses by the appointed
deadline.” Under these circumstances, the court decided that
rule 26 “mandate[d] the exclusion of [the Bergers’] experts at this
point in the case.”
¶13 The court then granted Defendants’ motion for summary
judgment. It explained that because it had previously ruled that
res ipsa loquitur was inapplicable, the Bergers “must present
their case to the jury via qualified medical experts to opine on
the applicable standard of care, a breach of that standard and
causation.” Because the Bergers could not “present any disputed
issue of material fact as to any element of their prima facie case
in the absence of expert testimony,” Defendants were entitled to
summary judgment. The Bergers appeal.
ISSUES AND STANDARDS OF REVIEW
¶14 The Bergers advance three issues on appeal. First, they
contend that the district court erred when it ruled that they
failed to establish a prima facie case of res ipsa loquitur and
declined to instruct the jury on the doctrine. “[W]hether a
plaintiff has established the requisite foundation for a res ipsa
loquitur instruction is a question of law.” Walker v. Parish Chem.
Co., 914 P.2d 1157, 1161 (Utah Ct. App. 1996). We review a
district court’s resolution of a question of law for correctness. See
Pilot v. Hill, 2019 UT 10, ¶ 9, 437 P.3d 362.
¶15 Second, the Bergers contend that the district court erred in
denying their motion to extend the expert discovery deadlines.
“Trial courts have broad discretion in managing the cases before
them and we will not interfere with their decisions absent an
abuse of discretion. When reviewing a district court’s exercise of
20190206-CA 7 2020 UT App 85Berger v. Ogden Regional Medical Center
discretion, we will reverse only if there is no reasonable basis for
the district court’s decision.” Callister v. Snowbird Corp., 2014 UT
App 243, ¶ 9, 337 P.3d 1044 (cleaned up).
¶16 Third, the Bergers contend that the district court erred in
granting summary judgment to Defendants. Summary judgment
is appropriate “if the moving party shows that there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a).
We review the district court’s decision to grant summary
judgment for correctness. Ruiz v. Killebrew, 2020 UT 6, ¶ 7, 459
P.3d 1005.
ANALYSIS
I. Res Ipsa Loquitur
¶17 The Bergers contend that the district court erred when it
ruled that they “did not establish a prima facie case for res ipsa
loquitur and further erred when it failed to approve the
proposed jury instruction.” The Bergers’ contention hinges on
their assertion that Bonnie’s injury “was of a kind that, in the
ordinary course of events, would not have happened if due care
had been observed.” This assertion, in turn, rests on the premise
that “it is within the knowledge and experience of laypersons
that a person with a healthy brain does not usually go into the
operating room for routine lung surgery and emerge with a
brain injury that causes death without some occurrence of
negligence.” For the reasons below, we reject the Bergers’
position and conclude that the district court correctly ruled that
res ipsa loquitur is inapplicable to this case.
¶18 To prevail on a claim of medical malpractice, “a plaintiff
must prove four elements: (1) the standard of care required
of health care providers under the circumstances; (2) breach
of that standard by the defendant; (3) injury proximately
20190206-CA 8 2020 UT App 85Berger v. Ogden Regional Medical Center
caused by the breach; and (4) damages.” Morgan v. Intermountain
Health Care, Inc., 2011 UT App 253, ¶ 8, 263 P.3d 405. “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.” Dalley v. Utah
Valley Reg’l Med. Center, 791 P.2d 193, 195–96 (Utah 1990). The
reason for this general rule is that “the nature of the [medical]
profession removes the particularities of its practice from the
knowledge and understanding of the average citizen.” Nixdorf v.
Hicken, 612 P.2d 348, 352 (Utah 1980). The doctrine of res
ipsa loquitur is an exception to this general rule. Dalley, 791 P.2d
at 196.
¶19 Through the doctrine of res ipsa loquitur, a plaintiff may
establish “a prima facie case of negligence using circumstantial
evidence.” Id. When the doctrine comes into play, it is often
because “a plaintiff may be unconscious or incapacitated during
surgery, and therefore unable to identify a defendant’s specific
negligent acts.” Baczuk v. Salt Lake Reg’l Med. Center, 2000 UT
App 225, ¶ 6, 8 P.3d 1037. Res ipsa loquitur thus “allows an
inference of negligence to be drawn when human experience
provides a reasonable basis for concluding that an injury
probably would not have happened if due care had been
exercised.” King v. Searle Pharm., Inc., 832 P.2d 858, 861 (Utah
1992). This inference of negligence is “rebuttable,” putting “the
burden of going forward with the evidence” on the defendants.
Dalley, 791 P.2d at 200. And “[s]ince res ipsa loquitur generally
raises only an inference and not a presumption of negligence, the
fact finder may choose either to accept or reject that inference.”
King, 832 P.2d at 861.
¶20 To rely on the doctrine of res ipsa loquitur, a “plaintiff
must establish an evidentiary foundation from which a finder of
fact could logically conclude that an injury was probably caused
20190206-CA 9 2020 UT App 85Berger v. Ogden Regional Medical Center
by negligence.” Baczuk, 2000 UT App 225, ¶ 6. A plaintiff does so
by showing three elements:
(1) The accident was of a kind which, in the
ordinary course of events, would not have
happened had the defendant[s] used due care,
(2) the instrument or thing causing the injury was
at the time of the accident under the management
and control of the defendant[s], and (3) the
accident happened irrespective of any participation
at the time by the plaintiff.
Nixdorf, 612 P.2d at 352–53 (cleaned up). Only the first element is
disputed on appeal.
¶21 Establishing an evidentiary foundation that a plaintiff’s
injury “was of a kind which, in the ordinary course of events,
would not have happened had the defendant[s] used due care”
“presents a peculiar problem to a plaintiff in a medical
malpractice case because of the necessity of showing what the
usual outcome of a medical procedure would be when the
required due care is employed.” Id. (cleaned up). A plaintiff may
take one of two paths for laying the required evidentiary
foundation. One path is for the plaintiff to introduce “expert
medical testimony to establish the fact the outcome is more
likely the result of negligence than some other cause.” Id. at 353;
see also King, 832 P.2d at 862; Baczuk, 2000 UT App 225, ¶ 7. The
other path is for the plaintiff to “rely on the common knowledge
and understanding” of laypersons. Nixdorf, 612 P.2d at 353; see
also King, 832 P.2d at 862–63. This is because the Utah Supreme
Court has recognized that “in certain situations, the medical
procedure is so common or the outcome so affronts our notions
of medical propriety that expert testimony is not required to
establish what would occur in the ordinary course of events.”
Nixdorf, 612 P.2d at 353. “A classic example” of this type of
situation is “leaving a foreign object in a patient’s body during
20190206-CA 10 2020 UT App 85Berger v. Ogden Regional Medical Center
surgery.” King, 832 P.2d at 862; accord Pete v. Youngblood, 2006 UT
App 303, ¶¶ 23–24, 30, 141 P.3d 629. 3
¶22 Here, because the Bergers maintain “there is no need for
an expert to explain what is readily within the knowledge of
laypersons,” they thus are relying on the “common knowledge”
path for establishing that Bonnie’s injury “was of a kind which,
in the ordinary course of events,” would not have happened but
for Defendants’ negligence. See Nixdorf, 612 P.2d at 352–53
(cleaned up). The Bergers’ theory is as follows: “[Bonnie’s] brain
was injured during lung surgery. She died from that injury. This
is not a common occurrence. As such, it is reasonable to infer
that negligence occurred (subject to [Defendants] being given the
opportunity to prove otherwise).” In so arguing, the Bergers
liken this case to two cases in which res ipsa loquitur applied to
surgical patients who suffered injuries to unrelated parts of their
bodies.
¶23 First, in Dalley v. Utah Valley Regional Medical Center, 791
P.2d 193 (Utah 1990), the plaintiff underwent a caesarean section
and returned from the operating room with a burn on the calf of
her right leg. Id. at 195. The Utah Supreme Court held that “it is
within the knowledge and experience of laypersons that a
woman with a healthy leg does not usually go into an operating
room for a caesarean section operation and emerge with a burn
on her leg without some occurrence of negligence.” Id. at 196.
Concluding that “[t]his type of inference does not require expert
testimony concerning the standard of care and breach of that
3. Other examples in non-medical contexts include “a barrel of
flour falling from a warehouse window onto a pedestrian,” “a
falling elevator,” a “sudden slamming of automatic doors in an
airport,” and “glass particles found in a loaf of bread.” Walker v.
Parish Chem. Co., 914 P.2d 1157, 1162 (Utah Ct. App. 1996)
(collecting cases).
20190206-CA 11 2020 UT App 85Berger v. Ogden Regional Medical Center
standard,” id., the court further explained that when “a plaintiff
receives an injury to a healthy part of the body not involved in
the operation in an operating room controlled by known
defendants, res ipsa loquitur establishes a rebuttable inference of
negligence and causation that puts the burden of going forward
with the evidence upon [the defendants],” id. at 200.
¶24 Second, in Baczuk v. Salt Lake Regional Medical Center, 2000
UT App 225, 8 P.3d 1037, the plaintiff underwent hand surgery.
Id. ¶ 2. An anesthesiologist “had used a heating pad to prevent
vasoconstriction during the surgery,” and after surgery, the
plaintiff discovered “a pressure injury and/or a burn to his
buttocks.” Id. On appeal, this court agreed with the plaintiff that
“it is within the understanding of laypersons that his burn
and/or pressure injury on an originally uninjured part of his
body not involved in the surgery more probably than not
resulted from negligence.” Id. ¶ 8. This court reasoned, “It
requires no medical or technical expertise to understand that a
person may suffer a burn and/or a pressure injury from lying in
the same position for too long on a heating pad. Nor does it
require medical expertise to understand the steps that must be
taken to avoid such injuries.” Id. ¶ 11. Accordingly, this court
concluded that the plaintiff was “justified in relying on the
understanding of laypersons” to set forth the evidentiary
foundation for res ipsa loquitur. Id. ¶¶ 7–8, 11.
¶25 Relying on Dalley and Baczuk, the Bergers argue that “it
would also appear that it is within the knowledge and
experience of laypersons that a person with a healthy brain does
not usually go into the operating room for routine lung surgery
and emerge with a brain injury that causes death without some
occurrence of negligence.” We disagree.
¶26 This case is dissimilar to Dalley and Baczuk. Dalley turned
on the existence of a simple injury (a burn on the leg) that would
clearly not occur during the specific type of procedure (a
20190206-CA 12 2020 UT App 85Berger v. Ogden Regional Medical Center
caesarean section), see Dalley, 791 P.2d at 196, 200, and Baczuk
turned primarily on the simplicity of the injury (burn and/or
pressure injury on the buttocks) and its lack of connection to the
procedure (hand surgery), see Baczuk, 2000 UT App 225, ¶¶ 7–8,
11. In contrast, this case presents more complex questions about
the procedure and injury that non-medically trained persons
would be unable to evaluate without assistance. Laypersons
would be unable to assess whether an anoxic brain injury clearly
would not occur during a robotic lung surgery and whether that
injury had any connection to the procedure. Indeed, whether
and how an anoxic brain injury could occur during a robotic
procedure on a patient’s lung do not fall within the common
understanding of laypersons. This injury is not an obvious one
that a non-medically trained person could automatically
associate with negligence, like “leaving a foreign object in a
patient’s body during surgery.” See King, 832 P.2d at 862.
Moreover, laypersons likely do not understand “the steps that
must be taken to avoid” injuries like Bonnie’s. See Baczuk, 2000
UT App 225, ¶ 11.
¶27 Although the Bergers claim that, like Dalley and Baczuk,
this case involves an injury to an otherwise healthy part of the
body that is uninvolved with the procedure, we cannot agree.
Defendants point out—and the Bergers do not dispute—that a
procedure removing the lower lobe of a lung necessarily
involves the respiratory and circulatory systems, which supply
oxygen to the brain, and that, as a matter of biology, the proper
functioning of the lungs is crucial to the health of the brain.
Thus, unlike the procedures and sites of injury in Dalley and
Baczuk, the brain is not a remote, uninvolved part of the body
when a patient is undergoing lung surgery.
¶28 We thus agree with the district court that this is “a
medically complicated malpractice case” and that the issues “are
not within the common knowledge of lay jurors.” The medical
and standard of care questions are complex and involve a
20190206-CA 13 2020 UT App 85Berger v. Ogden Regional Medical Center
number of subjects “with which a lay juror would have no
familiarity or expertise,” including “non-small cell carcinoma,
robotic surgery, anesthesia techniques, and hospital blood
procedures and administration.” We agree that it is not within
the common understanding of laypersons to determine
“whether a surgeon correctly performed the robotic evaluation
and removal of non-small cell carcinoma,” whether “anesthesia
techniques used during the surgery were appropriate and within
the standard of care,” and whether a patient was adequately and
appropriately “monitored during a procedure.” It is also not
within the common understanding of laypersons to evaluate
“hospital policies regarding availability of blood product in
procedures such as this, including blood bank procedures and
the use of a cell saver machine.”
¶29 In short, the district court correctly ruled that “this is not
the type of case where a layman could determine whether the
event causing the damage is of a type that ordinarily would not
happen except for someone’s negligence.” (Cleaned up.) The
situation surrounding Bonnie’s injury is not one in which the
Bergers “can rely on the common knowledge and understanding
of laymen to establish” that Bonnie’s injury was probably caused
by negligence. See Nixdorf, 612 P.2d at 353. Therefore, the Bergers
cannot rely on the doctrine of res ipsa loquitur to exempt them
from the general rule that expert testimony is required to
support their medical malpractice claim. 4 Accordingly, we affirm
the district court’s ruling on the issue of res ipsa loquitur.
4. In arguing that they should have been able to rely on res ipsa
loquitur without expert testimony, the Bergers emphasize that
evidence was conflicting at the end of fact discovery, “there were
still questions about what actually caused [Bonnie’s] injury,” and
those facts “are only known by [Defendants].” Because of these
circumstances, the Bergers suggest that their potential experts
(continued…)
20190206-CA 14 2020 UT App 85Berger v. Ogden Regional Medical Center
II. Expert Disclosure Deadlines
¶30 Next, the Bergers contend that the district court erred in
denying their motion to extend the expert discovery deadlines.
They assert that their motion was justified by good cause
because, as a matter of “fairness, a plaintiff should be able to
obtain a ruling on invocation of the doctrine of res ipsa loquitur
before expert discovery is required.” According to the Bergers,
the doctrine of res ipsa loquitur “cannot be effectively invoked
before the close of fact discovery (because facts may be learned
which make the doctrine inappropriate) and logically should be
invoked before expert discovery begins (to allow expert
discovery to proceed effectively).” They also assert that
extending the discovery deadlines would have “maintain[ed] the
status quo,” resulted in only a “short delay,” and caused no
prejudice to any party.
¶31 District courts generally may extend deadlines “for good
cause.” 5 Utah R. Civ. P. 6(b)(1). In exercising its discretion to
(…continued)
“would only be able to speculate and infer what happened to
[Bonnie]” and therefore “it is only reasonable that [Defendants]
be required to explain how [Bonnie’s] injury occurred in a
non-negligent way.” We are not persuaded. Instead, we agree
with Defendants that “experts reach opinions based on
conflicting facts as a matter of course” and that, specific to this
case, “the possibility of conflicting opinions supports the
argument that the procedure and injuries in this case could be
explained by multiple potential causes,” underscoring the extent
to which “the medical issues fall outside the realm of common
knowledge or experience.”
5. In their opening brief, the Bergers claim that the district court
“applied the wrong standards in denying the motion to extend
(continued…)
20190206-CA 15 2020 UT App 85Berger v. Ogden Regional Medical Center
deny the Bergers’ motion to extend the discovery deadlines,
the district court articulated reasonable bases to support its
decision that the Bergers’ failure to disclose experts “was not
the result of good cause.” The court determined that the
Bergers “had every opportunity to designate their experts and
they simply failed to do so.” See Townhomes at Pointe Meadows
Owners Ass’n v. Pointe Meadows Townhomes, LLC, 2014 UT
App 52, ¶ 12, 329 P.3d 815 (affirming the denial of a motion to
extend the discovery deadlines when the district court
determined, among other things, that “the discovery period in
[the] case ha[d] afforded the parties a fair and reasonable
opportunity to prepare for trial” (cleaned up)), superseded on
other grounds by rule as stated in Ghidotti v. Waldron, 2019 UT
App 67, 442 P.3d 1237. Indeed, the events in question “happened
seven years” earlier, the parties had been litigating “for over
four years,” and there had already been “a number of extensions
for discovery deadlines.” Additionally, the court determined
that the Bergers’ undisputed failure to designate experts by
the March 1, 2018 deadline was “not harmless” given that
it forced Defendants to make their expert disclosures “out of
sequence” and “without the benefit of” the Bergers’ expert
disclosures.
¶32 Likewise, the district court rejected the notion that
the Bergers’ motion on their res ipsa loquitur theory provided
good cause for extending the disclosure deadlines. The court
reasoned that the “decision to proceed in such a manner did not
obviate the requirement to designate expert witnesses by the
appointed deadline.” It explained that while the Bergers could
have avoided calling an expert at trial if they had prevailed on
(…continued)
expert discovery deadlines.” But in oral argument before this
court, the Bergers conceded that the district court applied the
correct standard in deciding the motion.
20190206-CA 16 2020 UT App 85Berger v. Ogden Regional Medical Center
the res ipsa loquitur motion, they could have “at least
designated an expert to comply with the discovery rules,”
especially when medical malpractice cases commonly “end up
being a battle of experts.” But where the Bergers “roll[ed] the
dice and wait[ed] to see” whether they prevailed on their res
ipsa loquitur motion before designating experts, the court did
not see “any wiggle room” to “give [them] more time to come up
with an expert.”
¶33 We appreciate the Bergers’ perceived dilemma concerning
their attempt to rely on res ipsa loquitur and their impending
expert disclosure deadlines. These considerations might have
weighed in favor of extending the deadlines in this case
and might have provided a reasonable basis for doing so. Yet
the district court’s decision on the matter was “a discretionary
call,” reviewed only for abuse of discretion. See Gunn Hill Dairy
Props., LLC v. Los Angeles Dep’t of Water & Power, 2015 UT App
261, ¶ 24, 361 P.3d 703 (Orme, J., concurring) (opining that
the district court “made the wrong call” on a motion to
change venue but that “it was, in its essence, a discretionary
call—and one that was within the broad range of discretion
entrusted to [it]”). While we cannot say that we necessarily
would have denied the Bergers’ motion had we been in the
district court judge’s position considering it in the first instance,
we affirm the district court’s decision under the deferential
standard of review that we are obliged to apply. See id. ¶ 21
(emphasizing that “standards of review really do matter”).
Under that standard, “we will reverse only if there is no
reasonable basis for the district court’s decision.” See Townhomes,
2014 UT App 52, ¶ 9. Here, the district court articulated
reasonable bases for its decision, including that the case had
been pending “for over four years” and the Bergers “had every
opportunity to designate their experts.” We thus conclude that
the district court did not exceed the bounds of its discretion
when it denied the Bergers’ motion to extend the expert
discovery deadlines.
20190206-CA 17 2020 UT App 85Berger v. Ogden Regional Medical Center
III. Summary Judgment
¶34 Finally, the Bergers challenge the district court’s grant of
summary judgment to Defendants, making their challenge
contingent on their success on the first issue raised on appeal.
They assert that “if this court determines that the Bergers have
established the requisite foundation to invoke the doctrine of res
ipsa loquitur then the trial court’s determination that summary
judgment for lack of designation of an expert should be
reversed.”
¶35 As discussed, a plaintiff must prove four elements to
prevail on a medical malpractice claim. Morgan v. Intermountain
Health Care, Inc., 2011 UT App 253, ¶ 8, 263 P.3d 405. “A
plaintiff’s failure to present evidence that, if believed by the trier
of fact, would establish any one of the elements of the prima
facie case justifies a grant of summary judgment to the
defendant.” Id. (cleaned up). In light of our affirmance of the
district court’s decision that the res ipsa loquitur theory is
unavailable to the Bergers, and in light of our affirmance of its
decision denying the Bergers further opportunity to designate
expert witnesses, we also affirm the district court’s decision
granting summary judgment to Defendants.
CONCLUSION
¶36 We conclude that the district court correctly determined
that the Bergers could not rely on the doctrine of res ipsa
loquitur. We also conclude that the court did not exceed its
discretion in denying the Bergers’ motion to extend the expert
discovery deadlines. Given the Bergers’ need for expert
testimony and their failure to designate any expert witnesses, the
district court correctly granted summary judgment in favor of
Defendants. Accordingly, we affirm the district court in all
respects.
20190206-CA 18 2020 UT App 85