Arreguin-Leon v. Hadco Construction

2018 UT App 225THE UTAH COURT OF APPEALS
NOE ARREGUIN-LEON,
Appellee,
v.
HADCO CONSTRUCTION LLC,
Appellant.
Opinion
No. 20161092-CA
Filed December 13, 2018
Fourth District Court, Provo Department
The Honorable Fred D. Howard
No. 130400816
Karl M. Tilleman, Robert L. Janicki, and Michael L.
Ford, Attorneys for Appellant
Troy L. Booher, Beth E. Kennedy, Leonard E. McGee,
and Peter R. Mifflin, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE A. TOOMEY and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 Working on a ladder involves certain inherent risks.
Working on a ladder on the shoulder of Utah’s largest interstate
freeway magnifies those risks. In this series of unfortunate
events, a car crash into a construction site knocked Noe
Arreguin-Leon (Plaintiff) off a ladder and caused him to sustain
serious bodily injury. Plaintiff sued Hadco Construction LLC
(Hadco) for negligently failing to implement a proper traffic
control plan, which purportedly would have protected against
cars entering the construction site. At trial, the jury awarded
Plaintiff $2.9 million in damages and found Hadco partially
responsible for Plaintiff’s injuries. Hadco appeals, and we
reverse and remand for a new trial.
Arreguin-Leon v. Hadco Construction
BACKGROUND
The Accident
¶2 The Utah Department of Transportation (UDOT)
contracted with Hadco to build a new stretch of road on I-15 (the
Corridor). Hadco subcontracted with Highway Striping & Signs
(HSS) to install all road signs along the Corridor. As principal
contractor of the Corridor, Hadco was responsible for
implementing a traffic control plan to protect the construction
workers but failed to do so. On the day of the accident, because
Hadco had provided them no protection from traffic, the
construction workers parked their semitrailer behind the work
site in an attempt to safeguard themselves while installing a
sign.
¶3 Plaintiff, who was employed by HSS, worked on the
Corridor. He was atop a ladder, installing an exit sign, when a
driver (Driver), who had fallen asleep at the wheel, suddenly
veered off course, drove into the construction site, and crashed
into Plaintiff’s ladder. 1 Plaintiff fell from the ladder and
sustained significant injuries. After resolving his claims against
Driver, Plaintiff brought suit against Hadco for negligently
failing to implement a proper traffic control plan.
The Lawsuit
¶4 During pre-trial discovery, Plaintiff disclosed a traffic
engineer as an expert (Expert). Plaintiff specified that Expert
would testify regarding Hadco’s violation of five engineering
practices, regulatory standards, or contractual provisions,
including that: (1) no traffic control (warning signs, barrels, etc.)
was in place at the accident site; (2) HSS had placed vehicles near
1. Driver stated that he fell asleep while driving and reported
waking up to hear “the grids in the road” and “seeing the back
end of the flatbed.” He further testified that he swerved to avoid
the truck, but lost control and hit Plaintiff’s ladder.
20161092-CA 2 2018 UT App 225Arreguin-Leon v. Hadco Construction
the accident site in violation of a UDOT standard known as a
“work clear zone”; (3) HSS customarily placed its vehicles on the
side of the road to protect workers, and if that were the case, a
UDOT approved traffic control plan should have been designed
to close the shoulder in conformance with “TA-5,” a regulatory
standard governing how to close the shoulder of a highway;
(4) Hadco knew or should have known that HSS would be
working at the accident site on the day of the incident, and
therefore should have taken corrective action; and (5) no traffic
control plan for the accident site had been designed by a
professional engineer or approved by UDOT.
¶5 Because Hadco did not provide a traffic control plan
specific to the Corridor, Expert did not base any opinion on an
actual plan. Plaintiff disclosed that Expert arrived at his opinions
by visiting the accident site and reviewing “(1) UDOT standard
plans and drawings, (2) the Manual on Uniform Traffic Control
Devices (2003 ed.), and (3) information provided by Plaintiff’s
counsel, which consisted of deposition transcripts, the police
report, pictures, subcontract agreements, and daily traffic control
plan inspections.” Plaintiff’s counsel did not disclose that Expert
would offer trial testimony regarding causation.
¶6 In lieu of having Expert submit an expert report, Hadco
elected to depose and cross-examine Expert on the five disclosed
traffic-control opinions, see supra ¶ 4. During the deposition,
Expert explained that Hadco should have closed the shoulder.
He further explained that Hadco should have installed a taper, a
buffer zone, signs, and barricades. At the conclusion of the
examination, Hadco’s counsel asked Expert, “Do you have any
other opinions in this case that we have not talked about today?”
Expert responded, “No,” and asked to review the transcript, but
he did not correct or add anything to his deposition testimony. 2
2. Plaintiff argues that the issue of expert disclosure and
discovery is unpreserved because (1) the stated objection went
only to disclosures and not discovery and (2) the deposition was
(continued…)
20161092-CA 3 2018 UT App 225Arreguin-Leon v. Hadco Construction
¶7 After Expert’s deposition—but before trial—Hadco
provided Plaintiff with a supplemental disclosure, containing “a
(…continued)
not put in the trial court record either at trial or by a post-trial
motion. But we determine this issue is preserved based on the
fact that Hadco’s counsel discussed the deposition with the trial
court, see infra ¶ 9, and therefore, had the court allowed Hadco’s
counsel to elaborate on this point, it would necessarily follow
that the deposition would likely have been reviewed by the trial
court.
Rule 46 of the Utah Rules of Civil Procedure states that “if
a party has no opportunity to object to a ruling or order at the
time it is made, the absence of an objection does not thereafter
prejudice [the party].” Utah R. Civ. P. 46. Where a trial court
prevents a party from creating a record, as occurred here, the
opposing party cannot claim that the issue is unpreserved
because of the lack of a record. See id.; see also United States v.
Caper, 571 F. App’x 456, 459–60 (6th Cir. 2014) (“An
‘opportunity’ to object is illusory when the district court cuts off
defense counsel, insisting that counsel need not even articulate
an objection because ‘everything’s preserved.’”); Hanks v.
Christensen, 354 P.2d 564, 566 (Utah 1960) (“[I]f a party has no
opportunity to object to a ruling or order at the time it is made,
the absence of an objection does not thereafter prejudice him.
Under such rule, if counsel was prevented from making
objections, he should be deemed to have done so.” (cleaned up));
Albores v. Bracamontes, 2006 UT App 204, ¶¶ 4–5, 138 P.3d 106(where a party was left “completely without occasion to object,”
the absence of an objection did not prejudice the party).
Further, we acknowledge that the deposition was filed
after the judgment was entered in this matter, but before the
record was prepared. While such filings normally would not put
the deposition before us for consideration, under the unique
facts of this case—in the context of the trial court precluding a
complete record from being made—we choose to exercise our
discretion and consider the deposition. Plaintiff has made no
claim that the deposition transcript is not accurate.
20161092-CA 4 2018 UT App 225Arreguin-Leon v. Hadco Construction
packet . . . consisting of Hadco’s daily traffic control plans . . .
and copies of UDOT standard drawings.” The supplemental
disclosure did not directly or specifically address the Corridor.
Rather, the disclosure contained UDOT’s single-page standard
plan for a lane closure. Hadco also retained a traffic control
expert “to rebut [Expert’s] five disclosed traffic-control
opinions,” but did not retain an expert “to testify on the issue of
whether Hadco’s conduct caused Plaintiff’s injuries because
Plaintiff had not disclosed an expert on that issue.”
The Trial
¶8 At trial, Hadco’s primary defenses were that Driver—not
Hadco—caused Plaintiff’s injuries, and that Hadco was unaware
that HSS was working on the Corridor on the day of the
accident. The jury heard undisputed evidence, from Hadco’s
Director of Operations and Hadco’s own expert witness, that
(1) the purpose of traffic control plans is to protect workers from
traffic, (2) it was Hadco’s responsibility to implement a traffic
control plan for the Corridor, and (3) Hadco did not implement
any plan.
¶9 Expert testified regarding the five disclosed traffic-control
opinions. Plaintiff then asked Expert to give his opinion on
whether Hadco’s failure to implement a traffic control plan
caused the accident and Plaintiff’s injuries. Hadco’s counsel
immediately objected to the testimony regarding causation for
three reasons: (1) Plaintiff had not disclosed that Expert would
offer any opinions regarding causation, (2) Expert had not
disclosed any data or information upon which he allegedly
relied to formulate his surprise causation trial opinion, and
(3) Expert testified at his deposition that he had no opinions in
the case beyond those discussed at his deposition, which did not
include any opinion relating to causation. The following bench
conference ensued:
Hadco’s counsel: Seems to me like this testimony is
going toward causation—would traffic control
have prevented the accident—and it goes beyond
20161092-CA 5 2018 UT App 225Arreguin-Leon v. Hadco Construction
any opinion that he’s ever disclosed in this case.
There’s a list of his items of testimony, and he
doesn’t touch on that at all.
Plaintiff’s counsel: Your Honor, [Expert] was
deposed in this case. [Hadco’s counsel] had every
opportunity to ask any question he wanted, and—
he’s not limited to the initial disclosure. If he had—
if [Hadco’s counsel] had elected a report, he would
be limited to the contents of the report, but because
a deposition has been elected, [Expert] is not so
limited.
Hadco’s counsel: That’s not correct, your Honor.
Plaintiff’s counsel: And—and there were
documents provided to [Expert] after (inaudible).
Hadco’s counsel: Then he needs to supplement his
disclosure.
The court: Your objection is noted and is, frankly,
overruled.
Hadco’s counsel: Can I make a record—a record on
this? I think it’s very important.
The court: This record is the record here now.
¶10 Expert went on to testify that if the required traffic control
plan had been implemented, “[t]here might have been an
accident still. There’s no question about that. I don’t think the
accident would have taken place where this happened” and
therefore, Plaintiff’s injury would not have occurred. Expert then
explained that the traffic control plan required Hadco to place
barrels over nearly 900 feet around the work site. To identify
where Driver fell asleep, Expert relied upon Hadco’s incident
report, which stated that Driver fell asleep about 200 yards from
20161092-CA 6 2018 UT App 225Arreguin-Leon v. Hadco Construction
the worksite. Expert noted that this was “within that 900-foot
area” where there should have been barrels, and if Hadco had
implemented the standard plan, he “would fully expect” that
Driver would have hit “at least one, if not more, of these plastic
barrels.”
¶11 Expert further opined that, based on his own experience
with hitting barrels, Driver would have awakened if he hit a
barrel. As Expert put it, “[t]here’s a hellacious racket that erupts
when you hit one of these things. . . . they make quite a noise.
And so, had this area been, in fact, barricaded, as was suggested
by the standard drawing, this driver would have been aware
immediately upon impact of one of those barrels.”
¶12 Expert then described what would have happened after
Driver awakened on impact, based upon his professional
training and experience. First, he explained that “normal
perception, judgment, reaction time is about 2.5 seconds. That’s
the average that traffic engineers use to say, ‘Okay. I’m seeing
something. I need to adjust to it. I need to then take corrective
action.’” Next, Expert opined that during the 2.5 seconds it likely
took for Driver to awaken, Driver “would have had close to six
seconds to wake up and take corrective action,” which included
“jerk[ing] hard left to get back on [I-15].” This opinion was based
on the area’s speed limit of 65 miles per hour, 3 in combination
with the report stating where Driver left the road. He
acknowledged that his expert opinion was based upon
assumptions, both from his professional experience and from
facts provided to him in the case.
¶13 On cross-examination, Hadco’s questions were designed
to emphasize that Expert did not know (1) precisely where
3. Driver testified that he had no reason to believe he was
traveling any slower than the speed limit, and furthermore,
Hadco stated in closing argument that Driver was “in a vehicle
that was traveling at 65 miles an hour that caused all of the harm
we’re talking about today.”
20161092-CA 7 2018 UT App 225Arreguin-Leon v. Hadco Construction
Driver fell asleep or (2) that hitting a barrel would have
awakened him. But Expert responded by stating that his
conclusion—that Driver would have awakened if he hit a
barrel—did not depend on that location, explaining that, if
Driver fell asleep anywhere along the 900-foot stretch where
Hadco should have placed barrels, Driver would have hit a
barrel, creating a “hellacious sound” that was “going to wake
him up.”
¶14 At the close of Plaintiff’s case, Hadco moved for a
directed verdict on the ground that Plaintiff had not presented
“sufficient evidence that a jury should conclude that the lack of
traffic control devices caused this accident.” After a recess, the
trial judge denied Hadco’s motion. The jury went on to find
Hadco partially at fault and apportioned 40% of Plaintiff’s total
$2,940,018.18 in damages to Hadco based on causation. Hadco
appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 Hadco brings several issues on appeal. First, it argues that
the trial court erred, under rule 26 of the Utah Rules of Civil
Procedure, in allowing Expert’s undisclosed causation opinion to
be elicited during trial. “While interpretations of the Utah Rules
of Civil Procedure are questions of law reviewed for
correctness,” we recognize that trial courts have “a great deal of
deference in matters of discovery.” RJW Media Inc. v. Heath, 2017
UT App 34, ¶ 18, 392 P.3d 956 (cleaned up). We therefore
“review discovery orders for abuse of discretion . . . [and] will
not find abuse of discretion absent an erroneous conclusion of
law or where there is no evidentiary basis for the trial court’s
ruling.” Id. (cleaned up). 4
4. Hadco also argues that the trial court erred, under rule 702 of
the Utah Rules of Evidence, in admitting Expert’s undisclosed
causation opinion. “The trial court has wide discretion in
(continued…)
20161092-CA 8 2018 UT App 225Arreguin-Leon v. Hadco Construction
¶16 Lastly, Hadco argues that the trial court erred in denying
Hadco’s motion for directed verdict “where the jury would have
had to speculate to make a causation finding against Hadco.”
We review a trial court’s ruling on a motion for directed verdict
for correctness. Blackmore v. L & D Dev. Inc., 2016 UT App 198,
¶ 24, 382 P.3d 655. On appeal from a denial of a motion for a
directed verdict based on the sufficiency of the evidence, “the
applicable standard of review is highly deferential.” State v.
McCallie, 2016 UT App 4, ¶ 39, 369 P.3d 103 (cleaned up). The
evidence is to be viewed in the light most favorable to the party
moved against. Mahmood v. Ross, 1999 UT 104, ¶ 16, 990 P.2d 933.
ANALYSIS
I. Admission Under Rule 26
¶17 Hadco first argues that the trial court abused its discretion
under rule 26 of the Utah Rules of Civil Procedure when it
allowed Expert to give his causation opinion at trial. We first
address whether the court abused its discretion, conclude that it
did, and then analyze whether the error was harmless.
A. Abuse of Discretion
¶18 Rule 26 governs disclosure, discovery, and use of
documents, testimony, and other evidence in hearings or at trial.
(…continued)
determining the admissibility of expert testimony, and such
decisions are reviewed under an abuse of discretion standard.
Under this standard, we will not reverse a decision to admit or
exclude expert testimony unless the decision exceeds the limits
of reasonability.” State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794(cleaned up). Here, there is a significant question of
preservation, as well as inadequate briefing. Because we are
already reversing and vacating the judgment on other grounds,
we decline to further address this issue.
20161092-CA 9 2018 UT App 225Arreguin-Leon v. Hadco Construction
See Utah R. Civ. P. 26. In short, the rule requires a party wishing
to use an expert witness to make initial disclosures, participate in
discovery, and supplement those disclosures and discovery
responses as necessary. See id. R. 26(a)(4)(A)–(B), (d)(5). If a party
does not comply with the rules, the party will likely not be
allowed to use the evidence—exclusion is the presumed remedy.
See id. R. 26(d)(4); see also Williams v. Anderson, 2017 UT App 91,
¶ 16, 400 P.3d 1071; RJW Media Inc. v. Heath, 2017 UT App 34,
¶ 21, 392 P.3d 956.
¶19 Plaintiff argues that under rule 26, “[a]n expert’s trial
testimony is limited by an expert report, not expert disclosures.”
Because the trial court cut off any effort to make a complete
record, we must assume that the court ruled consistent with the
argument of opposing counsel. In response to Hadco’s objection,
Plaintiff’s counsel argued, “[I]f [Hadco’s counsel] had elected a
report, he would be limited to the contents of the report, but
because a deposition has been elected, [Expert] is not so limited.”
Thus, Plaintiff argued at trial—and continues to argue on
appeal—that when a party elects to depose an expert under rule
26, any limitation on the scope of an expert’s testimony
evaporates because the deposing party has the opportunity to
ask anything it wants to during the deposition. We disagree.
¶20 This may have been the way things worked in days past,
but under the current rule that is no longer the case. We reject
Plaintiff’s argument and hold that the trial court misinterpreted
rule 26 as a matter of law and thereby abused its discretion. As
we now set out to explain, although rule 26 may be more express
in limiting expert testimony when a report is at issue, when a
party locks in an expert’s opinions in a deposition, the same
limitations on the scope of expert testimony attach.
¶21 Rule 26 states, in relevant part,
(a)(4)(A) Disclosure of expert testimony. A party shall,
without waiting for a discovery request, serve on
the other parties the following information
regarding any person who may be used at trial to
20161092-CA 10 2018 UT App 225Arreguin-Leon v. Hadco Construction
present evidence under Rule 702 of the Utah Rules
of Evidence and who is retained or specially
employed to provide expert testimony in the
case . . . : (i) the expert’s name and
qualifications, . . . (ii) a brief summary of the
opinions to which the witness is expected to testify,
(iii) all data and other information that will be
relied upon by the witness in forming those
opinions . . . .
(a)(4)(B) Limits on expert discovery. Further
discovery may be obtained from an expert witness
either by deposition or by written report. . . . A
report shall be signed by the expert and shall
contain a complete statement of all opinions the
expert will offer at trial and the basis and reasons
for them. Such an expert may not testify in a
party’s case-in-chief concerning any matter not
fairly disclosed in the report. . . .
(a)(4)(C) Timing for expert discovery.
(i) The party who bears the burden of proof
on the issue for which expert testimony is
offered shall serve on the other parties the
information required by paragraph (a)(4)(A)
within seven days after the close of fact
discovery. Within seven days thereafter, the
party opposing the expert may serve notice
electing either a deposition of the expert
pursuant to paragraph (a)(4)(B) and Rule 30,
or a written report pursuant to paragraph
(a)(4)(B). The deposition shall occur, or the
report shall be served on the other parties,
within 28 days after the election is served on
the other parties. If no election is served on
20161092-CA 11 2018 UT App 225Arreguin-Leon v. Hadco Construction
the other parties, then no further discovery
of the expert shall be permitted.
Utah R. Civ. P. 26(a)(4)(A)–(C). Thus, rule 26 provides a
mechanism for the disclosure of anticipated expert testimony
and the determination of whether an opposing party will elect to
obtain a report from the expert or depose the expert. To be sure,
and as the advisory committee notes acknowledge, 5 rule 26 is
drafted to encourage the use of reports instead of depositions in
an effort to simplify and reduce costs associated with litigation. 6
5. See Burns v. Boyden, 2006 UT 14, ¶ 18 n.6, 133 P.3d 370(explaining that although the advisory committee notes are not
authoritative, they are “a . . . reliable indicator of [the Utah
Supreme Court’s] intent in adopting the rules.”).
6. See the advisory committee notes to rule 26, which state:
Expert disclosures and timing. Rule 26(a)(3). Expert
discovery has become an ever-increasing
component of discovery cost. . . . However, [under
the previous rules] because the expert was not
required to sign these disclosures, and because
experts often were allowed to deviate from the
opinions disclosed, attorneys typically would take
the expert’s deposition to ensure the expert would
not offer “surprise” testimony at trial. . . . The
amendments seek to remedy this and other costs
associated with expert discovery by, among other
things, allowing the opponent to choose either a
deposition of the expert or a written report, but not
both; in the case of written reports, requiring more
comprehensive disclosures, signed by the expert,
and making clear that experts will not be allowed
to testify beyond what is fairly disclosed in a
report, all with the goal of making reports a
reliable substitute for depositions . . . .
20161092-CA 12 2018 UT App 225Arreguin-Leon v. Hadco Construction
But this emphasis does not turn the choice of a deposition into a
free-for-all. Instead, while the election of a report locks in the
scope of the expert’s testimony by operation of the rule itself
(rule 26(a)(4)(B)), when an election is made to proceed with a
deposition, it is up to the party deposing the expert to “lock in”
the expert’s opinion. The expert witness is bound by the
testimony she gives in a deposition and, similarly, the party
sponsoring the expert remains responsible, under penalty of
exclusion of testimony, to supplement any disclosures or
discovery responses previously made—including responses given
in a deposition.
¶22 Rule 26 expressly provides, in relevant part,
(d)(3) A party is not excused from making
disclosures or responses because the party has not
completed investigating the case or because the
party challenges the sufficiency of another party’s
disclosures or responses or because another party
has not made disclosures or responses.
(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.
Id. R. 26(d)(3)–(4). These provisions of rule 26 make clear that
disclosure and supplementation of both disclosures and
discovery responses are required and that if a party fails to
disclose or supplement a discovery response, the evidence or
testimony may not be used.
¶23 In this case, the specific disclosure was the initial
disclosure of Expert’s anticipated testimony and the specific
discovery response was Expert’s deposition testimony. More
particularly, the discovery was limited by Expert’s answer of
20161092-CA 13 2018 UT App 225Arreguin-Leon v. Hadco Construction
“No” to the question of whether he had any other opinions.
Because Expert never supplemented his deposition answer—the
discovery response—the causation testimony should not have
been allowed at trial, absent a determination that Plaintiff’s
failure to supplement his discovery responses was harmless or
excused by good cause—a determination that the trial court
never made. See id. R. 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.”).
¶24 The advisory committee notes support this interpretation
and expressly address the “lock in” issue in expert depositions.
The committee notes state,
The intent is not to require a verbatim transcript of
exactly what the expert will say at trial; instead the
expert must fairly disclose the substance of and
basis for each opinion the expert will offer. The
expert may not testify in a party’s case in chief
concerning any matter that is not fairly disclosed in
the report. To achieve the goal of making reports a
reliable substitute for depositions, courts are
expected to enforce this requirement. If a party
elects a deposition, rather than a report, it is up to
the party to ask the necessary questions to “lock
in” the expert’s testimony. But the expert is
expected to be fully prepared on all aspects of
his/her trial testimony at the time of the deposition
and may not leave the door open for additional
testimony by qualifying answers to deposition
questions.
Utah R. Civ. P. 26 Advisory Committee Notes. These notes
reinforce the intent of rule 26, which is to preclude parties from
trying to gain an advantage by offering “surprise” testimony at
20161092-CA 14 2018 UT App 225Arreguin-Leon v. Hadco Construction
trial that has not been disclosed to, or evaluated by, the opposing
party.
¶25 Here, the opinions that Expert disclosed in his deposition
limited the scope of his trial testimony, and he deviated from
those opinions. During the deposition, Hadco asked, “Do you
have any other opinions in this case that we have not talked
about today?” and Expert responded, “No.” Because the
causation testimony presented at trial exceeded both the scope of
the disclosure and scope of the deposition as “locked in” by
questioning, subsection (d)(4) was triggered, which (absent good
cause or harmlessness) should have resulted in any testimony
which exceeded the scope being excluded at trial. See Utah R.
Civ. P. 26(d)(4). 7
¶26 Accordingly, the trial court’s ruling—which implied that
because Hadco elected a deposition, rather than an expert report,
it could not object to the scope of Expert’s testimony—
constituted an erroneous interpretation of rule 26 and exceeded
its discretion. See Kilpatrick v. Bullough Abatement, Inc., 2008 UT
82, ¶ 23, 199 P.3d 957 (“An abuse of discretion may be
demonstrated by showing that the district court relied on an
erroneous conclusion of law or that there was no evidentiary
basis for the trial court’s ruling.” (cleaned up)).
7. We recognize that where testimony is but a mere elaboration,
supplemental disclosures might be unnecessary in some cases.
See Conners v. Poticha, 689 N.E.2d 313, 316–18 (Ill. App. Ct. 1997)
(holding that an expert may provide an opinion as to causation
where the opinion constitutes “an elaboration or refinement of a
well-established theory”). But that is not the case here. Expert’s
trial testimony was not merely an elaboration on his deposition
testimony concerning what Hadco should have done to protect
Plaintiff and the other HSS employees. At trial, Expert provided
additional, new opinions regarding a causative connection
between Hadco’s alleged negligence and Plaintiff’s fall.
20161092-CA 15 2018 UT App 225Arreguin-Leon v. Hadco Construction
B. Harmless Error
¶27 And we are unable to classify the trial court’s error as
harmless. “Even if the trial court exceeded its discretion, an
appellant has the burden to show that the error was substantial
and prejudicial, meaning that the appellant was deprived in
some manner of a full and fair consideration of the disputed
issues by the trier of fact.” RJW Media Inc. v. Heath, 2017 UT App
34, ¶ 33, 392 P.3d 956 (cleaned up). An error is harmful “only if
the likelihood of a different outcome is sufficiently high as to
undermine our confidence in the verdict.” Id. (cleaned up).
¶28 It is difficult for this court to determine what quantum of
evidence tipped the scales for the jury to find in Plaintiff’s favor
or to apportion fault in the manner the jury did. Ultimately, for
several reasons, we cannot conclude that the jury would have
inevitably reached the same result without Expert’s testimony.
First, causation was a central and hotly contested issue at trial.
Second, Expert’s opinion was not cumulative of any other
witness, and carried the imprimatur of coming from an “expert.”
Finally, Expert’s opinion provided a logical roadmap that the
jury could—and likely did—follow in deciding the issues of
liability and in apportioning fault. Accordingly, any error caused
by the trial court allowing Expert to testify regarding causation
was not harmless and warrants reversal. 8
II. Motion for Directed Verdict
¶29 Hadco also argues that the trial court erred in denying
Hadco’s motion for directed verdict because Plaintiff’s reliance
on Expert’s opinion left a “fatal gap in his prima facie negligence
8. We express no opinion regarding whether further discovery,
supplementation, or even additional expert disclosures should
be allowed by the trial court on remand. We leave it to the able
determination and discretion of the trial court to decide how to
proceed.
20161092-CA 16 2018 UT App 225Arreguin-Leon v. Hadco Construction
case.” 9 A trial court may properly grant a motion for directed
verdict only when, after “examining all evidence in a light most
favorable to the non-moving party, [the court concludes that]
there is no competent evidence that would support a verdict in
the non-moving party’s favor.” Gables at Sterling Village
Homeowners Ass’n, Inc. v. Castlewood-Sterling Village I, LLC, 2018
UT 04, ¶ 21, 417 P.3d 95 (cleaned up). We “will sustain the denial
[of a motion for directed verdict] if reasonable minds could
disagree with the ground asserted for directing a
verdict. . . . [W]e review the trial court’s decision to determine if
the evidence at trial raised a question of material fact which
9. In contrast, Plaintiff attempts to argue on appeal that all of
Hadco’s issues are unpreserved because Hadco failed to renew
its motion for directed verdict after trial and, therefore, did not
meet the procedural requirements set forth in rule 50(b) of the
Utah Rules of Civil Procedure. We decline to address this issue
because Hadco’s argument fails for other reasons. But we
observe that although the United States Supreme Court imposes
such a requirement under the analogous federal rule, see
Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400–01
(2006) (holding that in the absence of a post-verdict motion
under rule 50(b), an “appellate court [is] without power to direct
the District Court to enter judgment contrary to the one it had
permitted to stand” (cleaned up)), that holding is untethered to
the language of the rule itself, and we have our doubts that our
supreme court would reach the same conclusion if it were asked
to interpret the Utah rule, see Burns v. Boyden, 2006 UT 14, ¶ 19,
133 P.3d 370 (“We interpret court rules, like statutes and
administrative rules, according to their plain language.”); see also
Strand v. Nupetco Assocs. LLC, 2017 UT App 55, ¶ 4, 397 P.3d 724(“Courts are, in short, bound by the text of the rule.”); State v.
Quinonez-Gaiton, 2002 UT App 273, ¶ 11, 54 P.3d 139 (“We
interpret a rule by examining the rule’s plain language . . . .”
(cleaned up)); State v. Parker, 936 P.2d 1118, 1119, 1122 (Utah Ct.
App. 1997) (declining to adopt a United States Supreme Court
interpretation of a rule because the interpretation was “not
consistent with the plain language” of the Utah rule).
20161092-CA 17 2018 UT App 225Arreguin-Leon v. Hadco Construction
precluded judgment as a matter of law.” Hall v. Peterson, 2017 UT
App 226, ¶ 19, 409 P.3d 133 (cleaned up). In considering this
issue, we view the evidence as it existed at the close of evidence,
without determining whether it was properly admitted. Franklin
v. Stevenson, 1999 UT 61, ¶ 7, 987 P.2d 22.
¶30 Here, the evidence presented at trial—even without
Expert’s causation opinion—was sufficient to create a jury
question as to causation, and therefore, the issue was properly
submitted to the jury and Hadco’s motion for directed verdict
was correctly denied. Causation is that “which, in the natural
and continuous sequence (unbroken by an efficient intervening
cause), produces the injury and without which the result would
not have occurred. It is the efficient cause—the one that
necessarily sets in operation the factors that accomplish the
injury.” Mahmood v. Ross, 1999 UT 104, ¶ 22, 990 P.2d 933(cleaned up). Causation is “generally determined by an
examination of the facts, and questions of fact are to be decided
by the jury.” Id. Thus, trial courts should deny a motion for
directed verdict on issues of causation “if there is any evidence
which might lead a reasonable jury to find a causal connection
between a breach and a subsequent injury.” Id.¶31 Based on the testimony of witnesses, there was certainly
evidence that might lead a reasonable jury to find a causal
connection between the absence of a traffic control plan and
Plaintiff’s injuries. It is certainly possible, at least in some cases,
to demonstrate such a causal connection without retaining an
accident reconstruction expert. Here, the jury heard undisputed
evidence, from a Hadco employee as well as Hadco’s own expert
witness, that (1) the purpose of traffic control plans is to protect
workers from traffic, (2) it was Hadco’s responsibility to
implement a traffic control plan for the Corridor, and (3) Hadco
did not implement any plan. Furthermore, the jury heard
evidence from percipient witnesses about the configuration of
the accident, the dimensions of the work site, where Driver
veered off the road, and generally how the accident unfolded.
On that evidence, the jury was entitled to draw conclusions
regarding whether implementation of a traffic control plan
20161092-CA 18 2018 UT App 225Arreguin-Leon v. Hadco Construction
would have prevented the accident. 10 It necessarily follows that
the evidence was sufficient to support the denial of Hadco’s
motion for directed verdict. See Utah Dep’t of Transp. v. Target
Corp., 2018 UT App 24, ¶ 12, 414 P.3d 1080, cert. granted, 425 P.3d
800 (Utah 2018). Therefore, the trial court correctly denied
Hadco’s motion.
CONCLUSION
¶32 The court abused its discretion in allowing Expert’s
causation testimony. Further, the error was harmful enough to
warrant reversal and a new trial. Lastly, based upon the totality
of the evidence presented at trial, the court correctly denied
Hadco’s motion for directed verdict.
10. While the expert testimony presented may have informed the
jury’s consideration of the facts, the jury as fact finder was free to
accept or reject part or all of any of the experts’ opinions. See SA
Group Props. Inc. v. Highland Marketplace LC, 2017 UT App 160,
¶ 24, 424 P.3d 187; Woodward v. LaFranca, 2016 UT App 141, ¶ 13,
381 P.3d 1125.
20161092-CA 19 2018 UT App 225