Pete v. Youngblood

• Decision Date: 20 July 2006
• Docket Number: No. 20050268-CA.,20050268-CA.
• Parties: June W. Cox PETE, Plaintiff and Appellant, v. Dr. Robert L. YOUNGBLOOD, St. Mark's Hospital, John Does I-IV, and XYZ Corporations I-V, Defendants and Appellee.
• Court: Utah Court of Appeals

141 P.3d 629

2006 UT App 303

June W. Cox PETE, Plaintiff and Appellant, v. Dr. Robert L. YOUNGBLOOD, St. Mark's Hospital, John Does I-IV, and XYZ Corporations I-V, Defendants and Appellee.

No. 20050268-CA.

Court of Appeals of Utah.

July 20, 2006.

COPYRIGHT MATERIAL OMITTED

John L. Collins and Brian L. Olson, Gallian Westfall Wilcox & Wright, St. George, for Appellant.

Elliott J. Williams and Carolyn S. Jensen, Williams & Hunt, Salt Lake City, for Appellee.

Before GREENWOOD, Associate P.J., McHUGH and ORME, JJ.

OPINION

McHUGH, Judge:

¶ 1 June W. Cox Pete appeals from summary judgment in favor of Dr. Robert L. Youngblood on Pete's claim for medical malpractice based on Youngblood's alleged failure to remove gauze from a surgical site. Pete also challenges the trial court's refusal to allow her treating physician to testify as an expert witness when he was designated only as a fact witness during discovery and did not file an expert report under rule 26(a)(3) of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 26(a)(3). Finally, Pete claims that the trial court abused its discretion by denying her untimely demand for trial by jury. We affirm in part and reverse in part.

BACKGROUND

¶ 2 In 1970, Pete was seriously injured when a horse fell on her during a race. The horse's saddle struck her head, causing extensive facial injuries. Pete was airlifted from Nevada to St. Mark's Hospital for treatment. Youngblood, a plastic surgeon, was on call and performed surgery on Pete to repair her fractured maxilla, nasal bones, orbit, mandible, and crushed sinus cavity. During the surgery, Youngblood wired together a number of bones and placed gauze in the surgical site for stability. Approximately two weeks later, Youngblood removed gauze and sutures. Although Pete saw Youngblood for three follow-up visits, no additional gauze was removed during these appointments.

¶ 3 Over the next thirty years, Pete suffered from persistent and painful sinus infections, swelling, and headaches. Despite treatment by her family physician and a specialist, Pete was unable to determine the cause of her ailments. In December 2001, when the area below her eye had swollen to the size of an egg, Pete consulted her dentist, Troy Savant, to explore whether the problem could be related to her teeth. Upon finding no abnormality with Pete's teeth, Savant lanced the infected portion of her cheek. A large amount of foul-smelling pus oozed from the site. Savant then removed two five-inch pieces of gauze from Pete's cheek at the site of her 1970 surgery. Pete claims to have had no other surgery on her face since Youngblood's operation in 1970. After the gauze was removed, Pete's infection, pain, and headaches stopped.

¶ 4 On February 6, 2003, Pete filed a complaint alleging: "In the course of surgery, Defendant Youngblood was negligent in that he failed to exercise the degree of skill and care ordinarily exercised by physicians and surgeons in the City of Salt Lake, State of Utah, in that Defendant Youngblood negligently and carelessly left surgical gauze packing in Plaintiff's body."¹ Pete did not demand a jury trial and did not pay the statutory jury fee either with her complaint or within ten days of being served with Youngblood's answer.² See Utah R. Civ. P. 38(b). A little over four months later, on August 25, 2003, Pete filed an untimely jury demand. Youngblood opposed the jury demand on the basis that the right to jury trial had been waived. In response, on September 15, 2003, Pete filed a Motion for Jury Demand under Rule 39(b). See id. 39(b). The trial court denied the motion on October 28, 2003, stating that "[Pete] failed to demonstrate sufficient justification to persuade the [c]ourt to exercise its discretion pursuant to [r]ule 39(b), Utah Rules of Civil Procedure, to relieve her of that waiver [of the right to trial by jury]."

¶ 5 During the discovery phase, Pete designated several of her treating physicians as individuals likely to have discoverable information. She did not, however, designate any expert witnesses by the court-imposed deadline of February 20, 2004. Despite written discovery from Youngblood expressly requesting the names of Pete's experts, no witnesses were specifically designated as experts.

¶ 6 On September 29, 2004, Youngblood filed a motion for summary judgment, claiming that Pete had failed to state a prima facie case of medical malpractice because she had not designated an expert to opine as to the standard of care and breach. Pete's response was twofold. First, she offered an affidavit from one of her treating physicians, Dr. Paul Doxey, opining as to the standard of care. Second, Pete argued that no expert testimony was required because an inference of negligence was appropriate under the theory of res ipsa loquitur. Because Doxey had not been designated as an expert, the trial court struck the affidavit. The trial court then granted Youngblood's motion for summary judgment on the grounds that Pete had offered no expert testimony and because "after reviewing the record in this matter, the [c]ourt is not persuaded that the doctrine of res ipsa loquitur has any application." Pete filed this appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 7 First, Pete contends that it was error for the trial court to strike Doxey's expert affidavit even though he had been identified only as a fact witness under rule 26 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 26(a)(1)(A), (a)(3)(A). Interpretation of the Utah Rules of Civil Procedure is a question of law that we review for correctness. See Goldberg v. Jay Timmons & Assocs., 896 P.2d 1241, 1242 (Utah Ct.App. 1995). We review the trial court's imposition of sanctions for failure to comply with those rules, including the exclusion of testimony, for an abuse of discretion. See Featherstone v. Schaerrer, 2001 UT 86, ¶ 31, 34 P.3d 194; Tuck v. Godfrey, 1999 UT App 127, ¶ 15, 981 P.2d 407.

¶ 8 Pete next challenges the trial court's entry of summary judgment in favor of Youngblood. "Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Beltran v. Allan, 926 P.2d 892, 895 (Utah Ct.App.1996) (citations omitted).

When reviewing summary judgment, we review the facts in the light most favorable to the losing party. Because summary judgment is granted as a matter of law, we review the trial court's ruling on legal issues for correctness. We determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact.

Id. (quotations and citation omitted).

¶ 9 Finally, Pete argues that the trial court erred by denying her Motion for Jury Demand under Rule 39(b). See Utah R. Civ. P. 39(b). "[T]he granting or denial of a jury trial, in the absence of proper procedural requirements, is within the sound discretion of the trial court." James Mfg. Co. v. Wilson, 15 Utah 2d 210, 390 P.2d 127, 128 (1964); see also Thompson v. Anderson, 107 Utah 331, 153 P.2d 665, 667 (1944). We will not overturn the trial court's decision to deny an untimely jury demand absent an abuse of discretion. See Aspenwood, L.L.C. v. C.A.T., L.L.C., 2003 UT App 28, ¶ 33, 73 P.3d 947.

ANALYSIS

I. Use of Treating Physician as Expert

¶ 10 Pete argues that it was error for the trial court to strike Doxey's affidavit that Pete offered to establish the appropriate standard of care and to opine that Youngblood's conduct fell below that standard. The trial court excluded the Doxey affidavit because Pete did not identify him as an expert witness until after Youngblood filed his Motion for Summary Judgment. Pete first claims that Doxey is not a "retained expert" and therefore no expert designation was necessary. Pete also argues that she substantially complied with the requirements of Utah Rule of Civil Procedure 26 by identifying Doxey as a fact witness and providing copies of his medical records to Youngblood. See Utah R. Civ. P. 26. We address each of these arguments in turn.

A. Identification of Experts

¶ 11 Rule 26 of the Utah Rules of Civil Procedure requires the disclosure of three types of information relating to witnesses. See id. Rule 26(a)(1)(A) mandates that each party disclose the name, address, and telephone number of "each individual likely to have discoverable information supporting its claims or defenses." Id. 26(a)(1)(A). There is no dispute that Pete identified Doxey as a fact witness as required by this section. Rule 26(a)(3) relates to the disclosure of expert testimony and creates two distinct requirements: (1) disclosure of the identity of experts and (2) provision of an expert report. See id. 26(a)(3)(A)-(B).³ Pete neither identified Doxey as an expert witness nor provided an expert report, contending that treating physicians are always exempt from the requirements of rule 26(a)(3). We disagree.

¶ 12 "A party shall disclose to other parties the identity of any person who may be used at trial to present evidence under [r]ules 702, 703, or 705 of the Utah Rules of Evidence." Utah R. Civ. P. 26(a)(3)(A).⁴ Nothing in rule 26(a)(3)(A) limits the obligation to identify persons who may be used to give expert opinions. In contrast, rule 26(a)(3)(B) states:

Unless otherwise stipulated by the parties or ordered by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness or party.

Utah R. Civ. P. 26(a)(3)(B) (emphasis added). Thus, rule 26(a)(3) contemplates that all persons who may provide opinion testimony based on experience or training will be...