Dierl v. Birkin

2023 UT App 6THE UTAH COURT OF APPEALS
MARTIN J. DIERL,
Appellant,
v.
BARRY M. BIRKIN,
Appellee.
Opinion
No. 20210756-CA
Filed January 20, 2023
Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
No. 170500532
David E. Ross II, Attorney for Appellant
George T. Naegle, Cortney Kochevar, Kristina H.
Ruedas, and Aaron T. Cunningham,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 After being injured at a ski resort, Martin J. Dierl
underwent a CT scan, which was interpreted by Dr. Barry M.
Birkin as being normal. In reality, the scan showed a tumor in
Dierl’s brain. Some nine months later, after the tumor became
symptomatic, Dierl learned of the tumor and had surgery to
remove it. He suffered complications associated with the surgery,
including permanent partial loss of vision and pituitary gland
damage. Dierl sued Birkin for malpractice.
¶2 The district court granted summary judgment to Birkin
because Dierl offered no admissible expert testimony establishing
Dierl v. Birkin
that Birkin’s failure to diagnose Dierl’s brain tumor nine months
earlier proximately caused Dierl’s injuries. Dierl appeals, arguing
that two expert witness affidavits should have been admitted to
establish that Dierl sustained worse complications from surgery
than he would have sustained if he had undergone surgery
earlier. Because we conclude that the trial court appropriately
exercised its discretion in excluding both affidavits, we affirm.
BACKGROUND 1
¶3 Dierl was injured at a ski resort in Park City in February
2015 and was taken by ambulance to an emergency room. The
attending physician ordered a CT scan of Dierl’s brain. Birkin, a
radiologist, interpreted Dierl’s CT brain scan and reported it as a
“[n]egative CT,” stating that “[t]here are no intracranial masses.”
¶4 Beginning in November 2015, Dierl began experiencing
“severe headaches, loss of balance, dizziness, speech impediment,
memory loss[,] and loss of vision.” Dierl saw another doctor, who
requested another CT brain scan, along with the records from the
earlier brain scan. This doctor “informed Dierl that he had a large
tumor in his brain and that was the reason for his suffering and
loss of vision.” The doctor “also informed Dierl that the tumor
was visible in the [earlier scan] and inquired whether [anyone
had] informed him of this large brain tumor.” “Dierl stated that
no one had told him” about the tumor after the earlier scan. In
1. “In reviewing the district court’s grant of summary judgment,
we view the facts in the light most favorable to [Dierl], as the
nonmoving party.” Nelson v. 15 White Barn Drive LLC, 2022 UT
App 106, n.3, 517 P.3d 1062 (cleaned up).
20210756-CA 2 2023 UT App 6Dierl v. Birkin
December 2015, “Dierl underwent a right pterional craniotomy[2]
for resection of the tumor.”
¶5 Dierl later filed a complaint for medical negligence against
Birkin. Dierl alleged that Birkin “breached the standard of care in
failing to diagnose Dierl’s brain tumor,” which “grew and placed
pressure against his optic nerves and pituitary [gland].” Dierl
further asserted that Birkin’s “breach of the standard of care [was]
the proximate cause of Dierl’s injuries.”
¶6 Dierl timely disclosed a neurosurgeon (Neurosurgeon 1) as
an expert witness. Birkin elected to take Neurosurgeon 1’s
deposition, wherein Neurosurgeon 1 testified that the tumor grew
by four millimeters—from twenty to twenty-four millimeters—
over the course of the nine months following the February 2015
CT scan. Neurosurgeon 1 also testified that had the tumor been
detected in February 2015, it was “most likely that surgical
treatment, direct craniotomy, would have been carried out,” as it
had been in December 2015. Neurosurgeon 1 agreed that—
regardless of the size of the tumor—this type of surgery carries
certain risks, including “pituitary dysfunction, visual
impairment, fluid leak, incomplete resection, [and] damage to the
hypothalamus.” And Neurosurgeon 1 testified that following
Dierl’s surgery, Dierl did in fact experience “an increase in his
2. A craniotomy is “[a]n operation in which a small hole is made
in the skull or a piece of bone from the skull is removed to show
part of the brain. A craniotomy may be done to remove a brain
tumor or a sample of brain tissue. . . . The piece of bone that is
removed from the skull is usually put back in place after the
surgery has been done.” Craniotomy, Nat’l Cancer Inst.,
https://www.cancer.gov/publications/dictionaries/cancer-terms/
def/craniotomy [https://perma.cc/HCF9-2H9C].
20210756-CA 3 2023 UT App 6Dierl v. Birkin
visual loss and panhypopituitarism.” 3 After this, the following
exchange occurred:
Q. Can you say, to a reasonable degree of medical
probability, that . . . Dierl would not have
experienced an increase in his visual loss or
panhypopituitarism if the surgery had been
performed in February 2015?
A. Well, my opinion is that his risk of those
[complications] would be less, had he had surgery
in or around February 2015, as compared to
December of 2015.
Q. That’s fair. And my question is a little bit
different, though. I understand that you—it’s your
opinion that there is an increased risk there, but can
you say, to a reasonable degree of medical
probability, that had . . . Dierl undergone surgery in
February of 2015, that he would not have had an
increased visual loss?
A. No.
Q. And can you say, to a reasonable degree of
medical probability, that had . . . Dierl undergone
surgery in February of 2015, that he would not have
experienced complications related to
panhypopituitarism?
3. Panhypopituitarism is “[a] rare condition in which the pituitary
gland stops making most or all hormones.” Panhypopituitarism,
Nat’l Cancer Inst., https://www.cancer.gov/publications/dictiona
ries/cancer-terms/def/panhypopituitarism [https://perma.cc/HH
Q7-XS88].
20210756-CA 4 2023 UT App 6Dierl v. Birkin
A. No.
....
Q. My question is, can you say, to a reasonable
degree of medical probability, that had . . . Dierl
undergone surgery in February of 2015, that he
would not have the exact same injury to his vision
today?
A. No, because I would be—I would be speculating.
Q. Okay. Same question in regards to his
panhypopituitarism. . . . [H]ad the surgery been
completed in February of 2015, can you say, to a
reasonable degree of medical probability, that . . .
Dierl would not have experienced the exact same
injury to his pituitary gland that he experienced
following his surgery in December of 2015?
A. No.
¶7 Later, Birkin filed a motion for summary judgment,
arguing that Dierl had “failed to establish a prima facie case of
medical negligence against Birkin with expert testimony” because
“Dierl’s only causation expert failed to establish that any delay in
diagnosis of . . . Dierl’s tumor caused . . . Dierl actual damages.”
Birkin further argued that Dierl’s “reliance upon merely an
increased risk of surgical complication, but nothing more, does
not amount to actual damages and cannot sustain a cause of action
for medical negligence.”
¶8 Dierl opposed the motion and provided a new affidavit by
Neurosurgeon 1 stating, “Affiant opines that due to the significant
enlargement of the tumor from February 2015 to December 2015[,]
. . . Dierl’s vision loss was greater than it would have been if the
20210756-CA 5 2023 UT App 6Dierl v. Birkin
surgery had been conducted in February or thereabouts instead
of December 2015.” The affidavit continued, “Affiant states that
based only on a February 2015 CT brain scan [without] contrast
showing a 20 mm size tumor, he could not opine to any medical
degree of certainty or probability as to any injury . . . Dierl may
have sustained from a craniotomy in February 2015.”
¶9 About a month later, Dierl designated another
neurosurgeon (Neurosurgeon 2) as a rebuttal expert witness and
filed an affidavit from Neurosurgeon 2, which stated that
Neurosurgeon 2 had “determined to a medical degree of certainty
. . . [t]hat the failure of [Birkin] to diagnose the head CT scan and
report the tumor in . . . Dierl’s brain on February 12, 2015[,]
allowed the tumor to enlarge in the cephalo-caudal dimension
from 15.8 mm to 23 mm by the time it was diagnosed in late
November 2015.” Neurosurgeon 2 continued by stating, “[i]t is
more likely than not that . . . Dierl suffered a worse outcome with
respect to his vision than had the tumor been diagnosed and
treated in February of 2015.” Neurosurgeon 2 also declared that
the changes in the tumor “were significant and decreased the
chances of a better outcome from surgery” and “[t]hat the failure
of [Birkin] to diagnose the tumor in February 2015 contributed
post tumor resection in December 2015 to a poor visual outcome
and significantly enhanced the chance of permanent vision loss to
. . . Dierl.”
¶10 Later, Dierl filed a motion under rule 56 of the Utah Rules
of Civil Procedure asking the court to allow him “to cite to
[Neurosurgeon 2’s] Affidavit in support of [Dierl’s] position that
genuine issues of material fact exist.” See Utah R. Civ. P. 56(e)(1).
In response to Birkin’s point that Dierl had failed to establish
causation and damages as necessary for his prima facie case, Dierl
stated, “Assuming arguendo . . . that [Dierl] has failed to properly
support an assertion of fact, the Court should give [Dierl] an
opportunity to support or address the fact.” Dierl’s disclosure of
Neurosurgeon 2 had been timely for rebuttal expert witnesses but
20210756-CA 6 2023 UT App 6Dierl v. Birkin
had been made some three months after the deadline for
disclosures of experts in Dierl’s case-in-chief.
¶11 The district court held oral arguments on both motions.
After argument, the court gave an oral ruling indicating that the
“deposition testimony from [Dierl’s] designated expert shows
that [Dierl did] not have any expert testimony” asserting “that the
delay in surgery from February 2015 to December 2015
proximately caused any increase in . . . Dierl’s vision loss or any
increase in his pituitary dysfunction or otherwise that the
outcome would have been different had the surgery occurred
earlier than it did.” Accordingly, the court reasoned, Dierl was
“left with a lack of evidence of an essential element of [his] claim.”
The court then considered Neurosurgeon 1’s affidavit testimony,
stating that if it was admissible, it would create a “genuine issue
of material fact as to whether [Dierl] can prove proximate cause.”
However, the court relied on Webster v. Sill, 675 P.2d 1170 (Utah
1983), to exclude the affidavit for this purpose, stating that when
one “stakes a clear position in a deposition that is not modified on
cross-examination, he may not thereafter raise an issue of fact by
his own affidavit which contradicts his deposition unless he can
provide an explanation of the discrepancy.” The court reasoned
that “[t]here simply [was] no explanation for the about face that
[Neurosurgeon 1] makes in . . . his affidavit,” and stated that
“[a]bsent any such explanation[,] the Court is left with no other
conclusion than [that Dierl] is directly raising a genuine issue of
fact through a contradictory statement that is made without
explanation or context and under Webster v. Sill that is not
permitted.”
¶12 As to the admissibility of Neurosurgeon 2’s affidavit, the
court stated that it had not been “produced as part of [Dierl’s]
initial expert disclosures [related to his] case in chief as required
by” rule 26(a)(4)(C)(i) of the Utah Rules of Civil Procedure. The
court noted that Neurosurgeon 2 “was disclosed as a rebuttal
expert, not as an expert as part of [Dierl’s] case in chief” and
20210756-CA 7 2023 UT App 6Dierl v. Birkin
concluded that under rule 26(d)(4) Neurosurgeon 2’s testimony
“cannot be used in [Dierl’s] case in chief[,] including to show
proximate cause at summary judgment[,] unless [Dierl] can show
that there was good cause for . . . the late disclosure of his opinions
or that the late disclosure of his opinions was harmless to
[Birkin].” The court found that Dierl had “not made either of those
showings” and ruled Neurosurgeon 2’s testimony inadmissible in
Dierl’s case-in-chief, stating, “[T]herefore, [it] cannot be used to
fill the gap left in [Dierl’s] case in chief by [Neurosurgeon 1’s]
deposition testimony.”
¶13 “[T]aking all of that in[to] account,” the court stated, it was
“persuaded that [Birkin] has shown that [Dierl did] not have
admissible evidence as part of [his] case in chief that the delay in
diagnosis of . . . Dierl’s brain tumor would have proximately
caused any damage to . . . Dierl.” So the court concluded that
“based upon that lack of admissible evidence of an essential
element,” Dierl’s claim “fail[ed] as a matter of law.” Accordingly,
the court granted summary judgment in Birkin’s favor and
dismissed Dierl’s claim with prejudice.
ISSUES AND STANDARDS OF REVIEW
¶14 Dierl asserts that the district court erred in granting
Birkin’s motion for summary judgment. However, Dierl does not
ask us to decide whether the district court’s ultimate grant of
summary judgment was erroneous, assuming both expert
witnesses’ affidavits were inadmissible. Instead, he presents two
issues, both about the admissibility of the experts’ affidavits. 4
4. Dierl also states in the conclusion of his principal brief that the
district court erred “in determining [that] increased surgical risk
in this case is not a cognizable injury.” However, he does not
include this issue as presented for review, and his briefing on this
(continued…)
20210756-CA 8 2023 UT App 6Dierl v. Birkin
Therefore, the questions before us are really whether the expert
witness affidavits were properly excluded—Neurosurgeon 1’s for
being inconsistent with his deposition testimony and therefore
ineligible to create a genuine issue of material fact, and
Neurosurgeon 2’s for being barred from use in Dierl’s case-in-
chief because Neurosurgeon 2 was disclosed only as a rebuttal
expert.
¶15 “Two different standards of review apply to [Dierl’s]
claims regarding the admissibility of evidence. The first standard
of review, correctness, applies to the legal questions underlying
the admissibility of evidence.” State v. Griffin, 2016 UT 33, ¶ 14,
384 P.3d 186 (cleaned up). “The second standard of review, abuse
of discretion, applies to the trial court’s decision to admit or
exclude evidence . . . .” Id.; see also Murdock v. Springville Mun.
Corp., 1999 UT 39, ¶ 25, 982 P.2d 65 (applying the abuse of
discretion standard to a district court’s decision rejecting
affidavits). “Under the abuse of discretion standard, we will not
reverse unless the decision exceeds the limits of reasonability.”
Griffin, 2016 UT 33, ¶ 14 (cleaned up).
point is cursory. We conclude that this argument is either not
submitted for our review or is inadequately briefed because Dierl
has “fail[ed] to provide any factual or legal basis to support [his]
conclusory statement[]” and “has completely shifted the burden
of researching the record and applicable law to the court” on this
point. See Jacob v. Cross, 2012 UT App 190, ¶ 3, 283 P.3d 539 (per
curiam). Therefore, we do not address this point. In any event,
Dierl acknowledges that if we conclude that both affidavits were
properly excluded, it would “effectively result[] in the [proper]
dismissal of Dierl’s medical malpractice lawsuit.”
20210756-CA 9 2023 UT App 6Dierl v. Birkin
ANALYSIS
¶16 “If a defendant can show that the plaintiff has no legally
sufficient evidentiary basis for its claims at trial, the defendant
may establish the lack of a genuine issue of material fact and an
entitlement to judgment as a matter of law.” Salo v. Tyler, 2018 UT
7, ¶ 31, 417 P.3d 581. Furthermore, where the plaintiff bears the
burden of proof at trial on the issue in question, a defendant “may
make that showing without adducing any affirmative evidence of
its own.” Id.¶17 For a prima facie case of “medical malpractice, a plaintiff
must establish (1) the standard of care by which the physician’s
conduct is to be measured, (2) breach of that standard by the
physician, (3) injury that was proximately caused by the
physician’s negligence, and (4) damages.” See Jensen v. IHC Hosps.
Inc., 2003 UT 51, ¶ 96, 82 P.3d 1076 (cleaned up). Birkin asserted,
and the district court agreed, that Dierl had not satisfied “the third
element of medical malpractice—whether . . . Dierl’s injury was
proximately caused by . . . Birkin’s purported negligence.” “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.”
Niemela v. Imperial Mfg., Inc., 2011 UT App 333, ¶ 7, 263 P.3d 1191(cleaned up).
¶18 To satisfy this element and survive Birkin’s motion for
summary judgment, Dierl needed to show that the alleged breach,
“in the natural and continuous sequence (unbroken by an efficient
intervening cause), produce[d] the injury” and that without it,
“the result would not have occurred.” Arreguin-Leon v. Hadco
Constr. LLC, 2018 UT App 225, ¶ 30, 438 P.3d 25 (cleaned up), aff’d,
2020 UT 59, 472 P.3d 927. While “proximate cause is ordinarily a
question of fact for the jury, summary judgment is appropriate . . .
where the proximate cause of the injury is left to conjecture.”
20210756-CA 10 2023 UT App 6Dierl v. Birkin
Thurston v. Workers Comp. Fund, 2003 UT App 438, ¶ 13, 83 P.3d
391 (cleaned up).
¶19 In medical malpractice cases, proximate cause is ordinarily
established through expert testimony. See Ruiz v. Killebrew, 2020
UT 6, ¶ 11, 459 P.3d 1005 (“To ensure that the jury is not left to
speculate, plaintiffs may not provide just any evidence of
proximate cause: They must generally produce expert testimony
that the medical professional’s negligence proximately caused the
plaintiff injury.” (cleaned up)); Nixdorf v. Hicken, 612 P.2d 348, 354
n.17 (Utah 1980) (“The plaintiff also has the burden of proving the
negligence of the defendant was the proximate cause of the injury.
This proof requires some expert testimony in medical malpractice
cases.”). Accordingly, after the district court excluded the
affidavits of both Neurosurgeon 1 and Neurosurgeon 2, it then
ruled that Dierl did “not have admissible evidence . . . that the
delay in diagnosis of [his] brain tumor would have proximately
caused any damage.” We review the district court’s exclusion of
each expert’s affidavit in turn.
I. Neurosurgeon 1’s Affidavit
¶20 The district court excluded Neurosurgeon 1’s affidavit on
the basis that it contradicted his deposition testimony and
therefore could not be used to raise a genuine issue of fact
regarding causation. We agree. 5
¶21 In Webster v. Sill, 675 P.2d 1170 (Utah 1983), a tenant sued
a landlord after the tenant’s toe was severed by a lawnmower
5. The case law on this point has sometimes used the language of
a “sham affidavit.” See Blank v. Garff Enters. Inc., 2021 UT App 6,
¶ 6, 482 P.3d 258; Uintah Basin Med. Center v. Hardy, 2005 UT App
92, ¶ 6, 110 P.3d 168. We find such language to be ill-fitting
because it implies pejorative intent that we do not feel is
appropriate here.
20210756-CA 11 2023 UT App 6Dierl v. Birkin
when the tenant slipped while mowing the lawn. Id. at 1171. “On
deposition, the [tenant] testified that when he started to mow, he
was unaware that the grass was wet or damp,” that “[h]e first
concluded that the grass was wet and slippery only after he had
spoken to [two other individuals] seven or eight days after the
accident,” and that these individuals “told the [tenant] that the
grass had been watered the day of the accident.” Id. at 1172. “On
the basis of the [tenant’s] deposition testimony, [the landlord]
moved for summary judgment on the ground that the [tenant’s]
own admission established that there was no genuine issue of fact
as to whether a dangerous condition existed which caused the
accident.” Id. “After the deposition, the [tenant] filed an affidavit
that impliedly, if not directly, contradicted a critical part of his
deposition,” stating that an agent of the landlord “without [the
tenant’s] knowledge sprinkled a part of the lawn so that the lawn
became wet and slippery,” resulting “in the injury to the [tenant]
in that the [tenant] slipped on the wet, slippery grass.” Id. The
court identified discrepancies between the tenant’s deposition
and affidavit as to when the tenant attributed the slip to the grass
being wet and as to the timing and duration of the watering,
concluding that the tenant’s “theory of a dangerous condition
[arose] from speculation based on what others told [him,] and that
speculation was contrary to his deposition.” Id. at 1173.
¶22 The court acknowledged that “[t]he purpose of summary
judgment is not to weigh the evidence.” Id. at 1172. But the court
declared that “when a party takes a clear position in a deposition,
that is not modified on cross-examination, [the party] may not
thereafter raise an issue of fact by [its] own affidavit which
contradicts [its] deposition unless [it] can provide an explanation
of the discrepancy.” Id. at 1172–73. The court noted that this rule
“must be administered with care” as “[i]t is common knowledge
that witnesses sometimes misstate themselves, may not properly
understand the question propounded, or give equivocal
answers.” Id. at 1173. It also stated that this rule “does not apply
20210756-CA 12 2023 UT App 6Dierl v. Birkin
when there is some substantial likelihood that the deposition
testimony was in error for reasons that appear in the deposition
or the party-deponent is able to state in [an] affidavit an adequate
explanation for the contradictory answer in [a] deposition.” Id.However, finding that the tenant “testified in his deposition
directly on the issue of causation” and gave an “answer [that] was
clear and unequivocal that he did not notice that the grass was
wet or slippery at the time of the accident,” the court concluded
that the tenant’s “affidavit wholly failed to explain the
discrepancy between the deposition and the affidavit,” and thus
there was no genuine issue of material fact and dismissal of the
tenant’s case was appropriate. See id.¶23 Applying this reasoning to the expert testimony here, we
reach a similar conclusion. In Neurosurgeon 1’s deposition,
Birkin’s counsel asked whether Neurosurgeon 1 could “say, to a
reasonable degree of medical probability, that had . . . Dierl
undergone surgery in February of 2015, . . . he would not have the
exact same injury to his vision today.” And Neurosurgeon 1
responded, “No, because I would be—I would be speculating.”
Then Birkin’s counsel asked whether Neurosurgeon 1 could “say,
to a reasonable degree of medical probability, that . . . Dierl would
not have experienced the exact same injury to his pituitary gland
that he experienced following his surgery in December of 2015,”
and Neurosurgeon 1 again answered, “No.” This directly
contradicts the testimony in Neurosurgeon 1’s affidavit “that due
to the significant enlargement of the tumor from February 2015 to
December 2015[,] . . . Dierl’s vision loss was greater than it would
have been if the surgery had been conducted in February or
thereabouts instead of December 2015.”
¶24 Dierl asserts that “there are some inconsistencies in the
deposition itself” but that Neurosurgeon 1 did “state that the
delay caused by Birkin’s negligent failure to call out the brain
tumor . . . cause[d] Dierl harm, increased risk of harm, increased
his risk of permanent vision loss, etc.” But Dierl does not provide
20210756-CA 13 2023 UT App 6Dierl v. Birkin
any statements from Neurosurgeon 1’s deposition indicating that
Dierl’s actual injuries—as opposed to the risk of injuries—were
caused by the delayed diagnosis. Cf. Sohm v. Dixie Eye Center, 2007
UT App 235, ¶ 21, 166 P.3d 614 (“Even if [the doctor’s] affidavit
contradicts his deposition testimony, which we do not think it
does, the same inconsistencies existed within the deposition
testimony itself.” (cleaned up)). Accordingly, Neurosurgeon 1’s
affidavit contradicts his deposition testimony and cannot be used
to raise a genuine issue of material fact unless “there is some
substantial likelihood that the deposition testimony was in error
for reasons that appear in the deposition or [Neurosurgeon 1 was]
able to state in his affidavit an adequate explanation for the
contradictory answer in his deposition.” See Webster, 675 P.2d at
1173.
¶25 There is no “substantial likelihood that the deposition
testimony was in error for reasons that appear in the deposition.”
See id. Like in Webster, Neurosurgeon 1 “testified in his deposition
directly on the issue of causation” and gave an “answer [that] was
clear and unequivocal.” See id. The text of the deposition makes it
clear that Neurosurgeon 1 understood the questions and that his
position was that he could not state that Dierl would not have had
the same injuries had the surgery been performed in February
2015.
¶26 And Neurosurgeon 1 did not provide “in his affidavit an
adequate explanation for the contradictory answer in his
deposition.” See id. We have stated that “[w]e do not have to be
persuaded by the explanation or even find it compelling,” and
“[a]s long as it is plausible, the fact finder should be allowed to
weigh the credibility of the explanation.” Gaw v. Department of
Transp., 798 P.2d 1130, 1141 (Utah Ct. App. 1990). But the only
statement in the affidavit that seems to attempt to explain the
discrepancy is one stating that “based only on a February 2015 CT
brain scan [without] contrast showing a 20 mm size tumor,
[Neurosurgeon 1] could not opine to any medical degree of
20210756-CA 14 2023 UT App 6Dierl v. Birkin
certainty or probability as to any injury . . . Dierl may have
sustained from a craniotomy in February 2015.” This does not
adequately explain the discrepancy, as Neurosurgeon 1 does not
state that his affidavit testimony was based on any additional
information. Indeed, the record indicates that Neurosurgeon 1
had access to all the relevant medical files before his deposition.
Dierl indicated in his designation of Neurosurgeon 1 as an expert
witness that “[i]n forming his opinions on this matter,
[Neurosurgeon 1] ha[d] reviewed and considered the relevant
medical records,” and Neurosurgeon 1 agreed that he had access
to and reviewed “the documents, correspondence, and medical
records related to . . . Dierl’s [hospital] admission and treatment
in February 2015” and the “medical treatment and medical
records” related to Dierl’s December craniotomy. Accordingly,
and like in Webster, Neurosurgeon 1’s “affidavit wholly failed to
explain the discrepancy between the deposition and the
affidavit.” See Webster, 675 P.2d at 1173. Consequently, we
conclude that the district court appropriately exercised its
discretion in excluding Neurosurgeon 1’s affidavit.
II. Neurosurgeon 2’s Affidavit
¶27 Dierl presents three arguments as to why Neurosurgeon
2’s affidavit should not have been excluded. First, Dierl argues
that the affidavit was improperly excluded under Rule 26 the
Utah Rules of Civil Procedure. He asserts that rule 16 applies
instead and that the affidavit is admissible under this rule.
Second, Dierl argues that Neurosurgeon 2’s testimony can be used
as rebuttal evidence. Third, Dierl argues that the court erred in
“granting Birkin’s motion for summary judgment without
addressing Dierl’s . . . Rule 56 Motion.” We address each
argument in turn.
20210756-CA 15 2023 UT App 6Dierl v. Birkin
A. Rules 16 and 26
¶28 Dierl first notes that the district court “determined that
since [Neurosurgeon 2’s] disclosure was late, it could not be used
in Dierl’s case-in-chief pursuant to . . . [r]ule 26(d)(4), unless Dierl
could show that there was good cause for the late disclosure or
the late disclosure was harmless,” but he argues that “[r]ule
26(d)(4) on its face provides that only undisclosed witnesses are
excluded and as [Neurosurgeon 2] was disclosed this [r]ule is
inapplicable in this case.” Dierl asserts that his late disclosure of
Neurosurgeon 2 falls instead under rule 16, which permits
sanctions if a party violates a judge’s scheduling order. See Utah
R. Civ. P. 16(d). And regarding rule 16, he asserts that the court
“did not enter a scheduling order and therefore, Dierl did not
disobey such an order by a late disclosure of [Neurosurgeon 2].”
¶29 Rule 16 of the Utah Rules of Civil Procedure indicates that
“[i]f a party or a party’s attorney fails to obey an order, . . . the
court, upon motion or its own initiative, may take any action
authorized by Rule 37(b).” Id. Rule 37(b) states that “the court,
upon motion, may impose appropriate sanctions for the failure to
follow its orders” and provides a list of such sanctions, which
includes “dismiss[ing] all or part of the action, strik[ing] all or part
of the pleadings, or render[ing] judgment by default on all or part
of the action.” Id. R. 37(b)(4). Here, however, rule 16 plays no role.
As Dierl himself points out, there was no pretrial order in place
upon which a violation could be based. Therefore, rule 16 is
irrelevant to the issues presented in this case.
¶30 Rule 26 mandates that “[t]he party who bears the burden
of proof on the issue for which expert testimony is offered must
serve on the other parties the information required by paragraph
(a)(4)(A) within 14 days after the close of fact discovery.” Id.R. 26(a)(4)(C)(1). The rule indicates what information the party
must serve regarding a witness “retained or specially employed
to provide expert testimony in the case.” Id. R. 26(a)(4)(A).
20210756-CA 16 2023 UT App 6Dierl v. Birkin
Subsection (d)(4) specifies that “[i]f 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)(4).
¶31 Dierl bore the burden of proof on his medical negligence
claim, so he was responsible for satisfying the terms of rule 26 for
his case-in-chief. Dierl disclosed Neurosurgeon 2, but he did so
only as a rebuttal expert and only after Dierl’s disclosures for his
case-in-chief were due. So while Neurosurgeon 2 was eventually
disclosed as a rebuttal witness, he was not timely disclosed as an
expert for Dierl’s case-in-chief, and Dierl’s expert disclosures for
his case-in-chief were not timely supplemented. In other words,
Dierl’s intended use of Neurosurgeon 2’s testimony violates rule
26. Accordingly, the district court was correct that rule 26
presumptively barred the use of Neurosurgeon 2’s testimony for
Dierl’s case-in-chief unless he made the necessary showing of
harmlessness or good cause.
¶32 But Dierl disputes that he was required to show
harmlessness, arguing that “[r]ule 26(d)(4) is clear on its face that
if the ‘failure is harmless’ without any showing by Dierl, then the
party may use the witness, document or material.” However, this
position is at odds with applicable case law. “Under a plain
language reading of rule 26(d)(4), the burden to demonstrate
harmlessness or good cause is clearly on the party seeking relief
from disclosure requirements . . . .” Keystone Ins. Agency, LLC v.
Inside Ins., LLC, 2019 UT 20, ¶ 18 n.7, 445 P.3d 434; see also
Vanlaningham v. Hart, 2021 UT App 95, ¶ 20, 498 P.3d 27 (“As the
party seeking relief from her rule 26 disclosure requirements, [the
plaintiff] bears the burden to demonstrate harmlessness or good
cause.”); Blank v. Garff Enters. Inc., 2021 UT App 6, ¶ 22, 482 P.3d
258 (“The failure to comply with the disclosure requirements of
rule 26 . . . require[es] the exclusion of that evidence unless the
[plaintiffs] show[] that their failure to disclose was either harmless
20210756-CA 17 2023 UT App 6Dierl v. Birkin
or excused by good cause.”); Utah R. Civ. P. 26 advisory
committee’s notes to 2011 amendment (“If a party fails to disclose
or to supplement timely its discovery responses, that party cannot
use the undisclosed witness, document, or material at any hearing
or trial, absent proof that non-disclosure was harmless or justified by
good cause.” (emphasis added)).
¶33 And this is for good reason. In Blank v. Garff Enterprises Inc.,
2021 UT App 6, 482 P.3d 258, we noted that “the orderly
resolution of cases, particularly complex cases . . . , requires timely
disclosure and the ability to rely on what has—and has not—been
disclosed to chart out the next steps to move litigation to
conclusion.” Id. ¶ 23 (cleaned up); see also Utah R. Civ. P. 26
advisory committee’s notes to 2011 amendment (“More complete
disclosures increase the likelihood that the case will be resolved
justly, speedily, and inexpensively. Not being able to use evidence
that a party fails properly to disclose provides a powerful
incentive to make complete disclosures. This is true only if trial
courts hold parties to this standard. Accordingly, although a trial
court retains discretion to determine how properly to address this
issue in a given case, the usual and expected result should be
exclusion of the evidence.”). Parties rely on timely disclosures to
“make better informed choices about the discovery they want to
undertake or, just as important, what discovery they want to
forgo.” RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 25, 392 P.3d
956.
¶34 Additionally, it is notable that Dierl’s disclosure of
Neurosurgeon 2 came after Birkin had filed his motion for
summary judgment and after the hearing on that motion had been
scheduled. We have noted that “allowing parties to disclose
expert opinions that are central to a case only in response to a
dispositive motion would seriously frustrate the orderly
resolution of these kinds of cases.” Blank, 2021 UT App 6, ¶ 23
(cleaned up). Like the defendant in Blank, Birkin “relied on the
lack of expert testimony when [he] incurred the effort and
20210756-CA 18 2023 UT App 6Dierl v. Birkin
expense of preparing a motion for summary judgment on [Dierl’s]
claims.” Id.; see Segota v. Young 180 Co., 2020 UT App 105, ¶ 22, 470
P.3d 479 (concluding discovery violations were not harmless
where they “caused the defendants to file and litigate motions,
necessitating the expenditure of attorney fees and costs”). Dierl
wants us to allow through the back door what should have been
disclosed upfront, and permitting Dierl to use his rebuttal expert
to establish an essential element of his prima facie case essentially
renders rule 26’s deadline for a plaintiff’s expert disclosures
meaningless. We decline to invite parties bearing the burden of
proof to leave essential elements of their claims unsupported until
after opposing parties have filed dispositive motions.
Accordingly, we conclude that the district court properly
exercised its discretion in ruling that Dierl violated rule 26 and
could not use Neurosurgeon 2’s testimony for his case-in-chief.
B. Rebuttal Evidence
¶35 Dierl next argues that Neurosurgeon 2’s testimony should
be admitted as rebuttal evidence against Birkin’s expert witness,
who “opin[ed] generally no tumor growth between February 2015
and December 2015, thus concluding no harm to Dierl.” Dierl
asserts that “he did not and could not have anticipated the
evidence [Neurosurgeon 2] disclosed for his rebuttal evidence; in
particular that there was substantial growth of Dierl’s brain tumor
in the [cephalo-caudal] dimension” between February 2015 and
December 2015. Dierl argues that this “evidence should not be
excluded from rebuttal merely because it could have been made
part of the case-in-chief.”
¶36 But Dierl’s argument here is misguided in several ways.
First, the district court was not restricting what Neurosurgeon 2
would be able to testify on rebuttal, if the case were to proceed,
but rather ruled that Neurosurgeon 2’s testimony was not
admissible in Dierl’s case-in-chief. Second, and relatedly, the issue
Dierl claims to rebut with Neurosurgeon 2’s testimony is not the
20210756-CA 19 2023 UT App 6Dierl v. Birkin
dispositive issue. The district court dismissed the case because
Dierl had not provided admissible evidence of causation. So
Dierl’s claim that Neurosurgeon 2’s testimony rebutted Birkin’s
expert’s opinion about “no tumor growth” is irrelevant to our
inquiry. Dierl’s case failed for lack of proof in the case-in-chief; in
such a situation, there is nothing to rebut.
C. Rule 56
¶37 Finally, Dierl argues that the district court should have
admitted Neurosurgeon 2’s affidavit under rule 56 of the Utah
Rules of Civil Procedure. He also argues that the district court did
not actually rule on his motion on this point.
¶38 Rule 56 states that “[i]f a party fails to properly support an
assertion of fact or fails to properly address another party’s
assertion of fact . . . the court may” do any of the following:
“(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show
that the moving party is entitled to it; or (4) issue any other
appropriate order.” Utah R. Civ. P. 56(e).
¶39 As to Dierl’s argument that the district court erred in
not admitting Neurosurgeon 2’s testimony under rule 56, we
are not persuaded. While rule 56 does indeed provide judges
with discretion to “give [parties] an opportunity to properly
support or address the fact,” id., the rule also provides other
options for dealing with unsupported assertions of fact—
including considering a fact undisputed and granting a motion
for summary judgment. See id. The district court exercised its
discretion in granting summary judgment, and for the reasons
stated above, see supra ¶¶ 28–32, we conclude that this action was
reasonable.
20210756-CA 20 2023 UT App 6Dierl v. Birkin
¶40 Furthermore, Dierl is incorrect that the district court failed
to rule on his motion. First, because granting summary judgment
is one of the options available under rule 56, the district court’s
grant of summary judgment was, in effect, a ruling on this motion.
But even more clearly, the district court’s order—titled “Order
Granting Defendant’s Motion for Summary Judgment and
Denying Plaintiff’s Motion to Support Factual Position”—states
that the court heard argument on both matters, and it clearly
issued a ruling on both matters. The transcript of the hearing
further indicates that the court considered and ruled on Dierl’s
motion to admit Neurosurgeon 2’s affidavit. Therefore, we are
convinced that the district court ruled on Dierl’s motion and that
its decision was reasonable.
CONCLUSION
¶41 The district court properly exercised its discretion in
excluding the affidavits of both experts. Neurosurgeon 1’s
affidavit contradicted his deposition testimony without
explanation, so it cannot be used to create a genuine issue of
material fact. And Neurosurgeon 2 was not disclosed as a witness
for Dierl’s case-in-chief, so his testimony was properly excluded
from consideration in Dierl’s case-in-chief. Accordingly, the
district court correctly granted summary judgment for Birkin. We
affirm.
20210756-CA 21 2023 UT App 6