Berger v. Ogden Reg'l Med. Ctr.

• Decision Date: 04 June 2020
• Docket Number: No. 20190206-CA,20190206-CA
• Citation: 469 P.3d 1127
• Parties: 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.
• Court: Utah Court of Appeals

469 P.3d 1127

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.

No. 20190206-CA

Court of Appeals of Utah.

Filed June 4, 2020

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.

Opinion

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 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.

BACKGROUND¹

¶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, Bonnie² 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:

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 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 "[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 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 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...