Arreguin-Leon v. Hadco Constr., LLC

Decision Date17 August 2020
Docket NumberNo. 20190121,20190121
Citation472 P.3d 927
Parties Noe ARREGUIN-LEON, Petitioner, v. HADCO CONSTRUCTION, LLC, Respondent.
CourtUtah Supreme Court

Troy L. Booher, Beth E. Kennedy, Salt Lake City, Leonard McGee, Peter Mifflin, Sandy, for petitioner

Robert L. Janicki, Michael L. Ford, Sandy, Harry Lee, Shannen W. Coffin, Mark C. Savignac, Washington D.C., for respondent

Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.

On Certiorari to the Utah Court of Appeals

Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 Noe Arreguin1 was injured while working on a highway construction site. He sued Hadco Construction, LLC, the general contractor, for failing to take necessary safety measures to protect workers from highway traffic. Arreguin prevailed at trial. But during trial, he elicited undisclosed testimony from his expert witness. The court of appeals found this error to be harmful and reversed and remanded for a new trial. We affirm.

BACKGROUND

¶2 Noe Arreguin was injured while installing an exit sign on the shoulder of I-15. A driver fell asleep at the wheel and veered off the road and into the ladder on which Arreguin was standing.

¶3 Arreguin worked for a company called Highway Striping & Signs. The company had been hired by Hadco to install signage for a Utah Department of Transportation roadway project in Utah County. In its role as general contractor, Hadco was responsible for implementing a "traffic control plan" composed of various safety measures to protect workers from traffic and drivers from the construction site. Hadco did not do so. At the time of the accident, there were no traffic control measures in place at the accident site, such as barrels or barriers.

¶4 As a result of the accident, Arreguin sustained significant injuries. He sued the driver and Hadco (along with others who are not relevant to this appeal).

¶5 Arreguin retained Bruce Reading as an expert witness on traffic control standards. Hadco's counsel elected to depose Reading rather than receive an expert report.

¶6 The case proceeded to a jury trial, at which Arreguin called Reading to testify. Reading opined that Hadco or its subcontractor had violated five specific engineering practices, regulatory standards, and contractual provisions and that there was no traffic control plan in place at the accident site.

¶7 During direct examination, Arreguin's counsel asked Reading, "If [200 yards from the construction project is] where [the driver] started to exit the roadway, what effect would a correctly installed buffer zone have had on his driving?" Hadco's counsel objected and asked to approach the bench. The following sidebar ensued:

[DEFENSE COUNSEL]: Seems to me like this testimony is going toward causation—would traffic control have prevented the accident—and it goes beyond 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 COUNSEL]: Your Honor, Mr. Reading was deposed in this case. [Defense counsel] had every opportunity to ask any question he wanted, and—and he's not limited to the initial disclosure. If he had—if [defense counsel] had elected a report, he would be limited to the contents of the report, but because a deposition has been elected, Mr. Reading is not so limited.
[DEFENSE COUNSEL]: That's not correct, your Honor.
[PLAINTIFF COUNSEL]: And—and there were documents provided to Mr. Reading after (inaudible).
[DEFENSE COUNSEL]: Then he needs to supplement his disclosure.
THE COURT: Your objection is noted and is, frankly, overruled.
[DEFENSE 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.
[DEFENSE COUNSEL]: Okay. Thank you.

¶8 Reading then testified about the effect that a proper traffic control plan would have had, including that if the accident occurred where Hadco's "safety person"2 suggested it did, it would have been within a 900-foot area where the driver would have hit "at least one, if not more, of th[e] plastic barrels" that would have been in place. He explained that after hitting at least one of the plastic barrels, the driver "would have had close to six seconds to wake up and take corrective action." And he concluded that if traffic control had been in place, "[t]here might have been an accident still," but it would not have taken place where it did.

¶9 The trial continued and the jury ultimately found that Hadco was partially liable for Arreguin's injury. The jury allocated 60 percent of the fault to the driver and 40 percent to Hadco. Hadco appealed.

¶10 Approximately four months after filing its notice of appeal, Hadco filed Reading's deposition transcript and Arreguin's expert disclosures in the district court. They were included in the record that was certified to the court of appeals.

¶11 One of Hadco's arguments on appeal was that the district court erred under Utah Rule of Civil Procedure 26 when it allowed Reading to offer an undisclosed opinion on causation. Arreguin argued that Hadco could not prevail on this argument without relying on his expert disclosures and Reading's deposition transcript. But he asserted it was improper for the court of appeals to consider these documents because they were not actually part of the trial record.

¶12 The court of appeals decided to consider the disclosures and the deposition transcript. It "acknowledge[d] that [Reading's] deposition was filed after the judgment was entered in this matter, but before the record was prepared" and that "such filings normally would not put the deposition before [the court of appeals] for consideration." Arreguin-Leon v. Hadco Constr. LLC , 2018 UT App 225, ¶ 6 n.2, 438 P.3d 25. But it decided that "under the unique facts of this case" it would "exercise [its] discretion and consider the deposition." Id.

¶13 The court of appeals concluded that the district court abused its discretion in allowing Reading to testify about causation at trial. Id. ¶ 20. And it determined that the error was "harmful enough to warrant reversal and a new trial." Id. ¶ 32.

¶14 Arreguin petitioned this court for certiorari, which we granted to address three questions: (1) "[w]hether the Court of Appeals erred in considering a deposition transcript that was not included in the record prior to the filing of the appeal"; (2) "[w]hether the Court of Appeals erred in construing [Hadco's] arguments on appeal to present a sufficient basis for its conclusion that [Arreguin's] expert testimony should have been excluded"; and (3) "[w]hether the Court of Appeals erred in its construction and application of the standard for demonstrating harmful error on appeal."

¶15 We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶16 "On certiorari, we review the court of appeals’ decision for correctness, without according any deference to its analysis." Vander Veur v. Groove Entm't Techs. , 2019 UT 64, ¶ 7, 452 P.3d 1173 (citation omitted) (internal quotation marks omitted).

ANALYSIS
I. CONSIDERATION OF ARREGUIN'S EXPERT DISCLOSURES AND THE EXPERT'S DEPOSITION TRANSCRIPT

¶17 The first question before us is whether the court of appeals erred in considering Arreguin's expert disclosures and Reading's deposition transcript. Arreguin argues that the court of appeals should not have considered these documents because they were not truly part of the trial record, in that neither party submitted either document for the district court's consideration at any point. Rather, Arreguin notes that Hadco filed the documents five months after the district court entered the final judgment in the case and four months after Hadco filed its notice of appeal.

¶18 We take Arreguin's point. When the district court ruled on Hadco's objection, it did not actually have these documents before it. The court of appeals decided to consider this extra-record evidence because it determined Hadco's counsel had attempted to make a further record during the sidebar but had been prevented from doing so by the district court. See Arreguin-Leon v. Hadco Constr. LLC , 2018 UT App 225, ¶ 6 n.2, 438 P.3d 25. The court of appeals analogized this situation to one in which a party is prevented from objecting, and thereafter should not be prejudiced by the lack of an objection. See id. ; see also UTAH R. CIV. P . 46. Arreguin rejects this as a valid basis for considering the extra-record materials.

¶19 We conclude that we do not need to resolve this dispute. We can affirm the court of appeals’ ruling on the disputed expert testimony without resort to the expert disclosures or deposition transcript. Arreguin's premise is that the content of these documents is essential to Hadco's argument—in other words, that Hadco cannot successfully argue that the district court erred in permitting Reading to testify about causation without relying on the content of (1) the expert disclosures to prove that Arreguin did not in fact disclose a causation opinion and (2) the deposition transcript to prove that Hadco had "locked in" Reading to only those opinions he offered during his deposition. But as we will discuss, Arreguin never put the content of these documents at issue in the district court. Arreguin essentially contends that Hadco must refute arguments he never made.

¶20 The court of appeals did rely upon the documents in its reasoning, Arreguin-Leon , 2018 UT App 225, ¶ 23, 438 P.3d 25. But we disagree with the premise that they are necessary to Hadco's argument or the court of appeals’ holding. As Hadco has argued, we can resolve the rule 26 issue based solely on the transcript of the sidebar between counsel and the district court at trial.

¶21 Looking only at the sidebar, we agree with the court of appeals that the district court committed legal error in overruling Hadco's objection. During the sidebar, Hadco argued that Arreguin's question to...

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