Berrett v. Denver and Rio Grande Western R. Co., Inc.

• Decision Date: 03 April 1992
• Docket Number: No. 910215-CA,910215-CA
• Citation: 830 P.2d 291
• Parties: Robert BERRETT, Gerald Argyle, et al., Plaintiffs and Appellants, v. DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, INC., Defendant and Appellee.
• Court: Utah Court of Appeals

Page 291

830 P.2d 291

Robert BERRETT, Gerald Argyle, et al., Plaintiffs and Appellants, v. DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, INC. Defendant and Appellee.

No. 910215-CA.

Court of Appeals of Utah.

April 3, 1992.

Certiorari Denied July 8, 1992.

Allen K. Young and Randy S. Kester, Springville, for plaintiffs and appellants.

Michael F. Richman and Eric C. Olson, Salt Lake City, for defendant and appellee.

Before BENCH, P.J., and GARFF and JACKSON, JJ.

OPINION

BENCH, Presiding Judge:

Plaintiffs brought suit against defendant for damages suffered as a result of a landslide in Utah County. Defendant prevailed at trial. Plaintiffs appeal the trial court's decision to preclude one of their expert witnesses from testifying. We reverse and remand for a new trial.

BACKGROUND

On April 13, 1983, a massive landslide began to move down the hillside in Spanish Fork Canyon, just downriver of the small town of Thistle. The slide progressed into the canyon and blocked the Spanish Fork River. A small lake formed that inundated and destroyed Thistle. The lake was approximately one hundred feet deep and remained for approximately six months until the slide was breached and the water receded. The town was thereafter designated a flood plain, and no one has been allowed to rebuild. Plaintiffs are the former inhabitants of Thistle.

Plaintiffs claim that the landslide was caused by defendant's construction activities at the toe of the slide. In the late 1800s, a predecessor railroad made a cut near the toe of the slide in order to run its tracks up the canyon. Defendant subsequently made a second cut in the early 1900s and a final cut in 1951. Plaintiffs estimate that the total soil removed by these cuts amounted to between 10,000 and 15,000 cubic yards. In essence, plaintiffs claim that but for the cuts made at the toe of the slide, the slide would not have occurred, or at least it would not have been as massive, and their homes would not have been destroyed.

Defendant, on the other hand, asserts that inasmuch as the slide began at the top and moved downward, the landslide would have occurred even if the soil had not been removed from the toe. Defendant therefore claims that its actions were not the cause of the slide.

Plaintiffs commenced this action against defendant in March of 1986. Trial was initially set for August 10, 1987, but was continued and set for February 21, 1989. Another continuance set trial for August 14, 1989. On June 27, 1989, the trial court conducted a pre-trial hearing. Defendant complained that plaintiffs had not provided defendant with their final witness list in response to its interrogatory. ¹ The trial court warned plaintiffs about their failure to disclose their witnesses, but did not set a deadline for the final disclosure of witnesses. At the suggestion of defense counsel, the trial court instructed the parties to submit a scheduling order and a pre-trial order within ten days. No scheduling order was submitted, nor do we have any record that one was ever discussed by the parties. No pre-trial order was ever submitted because the parties could not agree on its content.

Defendant's counsel indicated to plaintiffs' counsel in a letter dated July 12, 1989, that defendant expected plaintiffs' final witness list no later than August 1st. Counsel for defendant also sent a proposed pre-trial order to plaintiffs' counsel. The proposed order indicated that the names of all witnesses to be called at trial, not already listed in the proposed pre-trial order, be delivered to opposing counsel and filed with the trial court at least ten days prior to trial.

On July 18th and 19th, following the June 27th hearing, plaintiffs' counsel met with one of their expert witnesses, Dr. Olson, and reviewed reports written about the Thistle slide area. Plaintiffs' counsel agreed with Dr. Olson at that time to attempt to locate one of the authors, Dr. John F. Shroder, a geomorphologist and a On August 1, 1989, plaintiffs provided defendant with their final witness list. Dr. Shroder was included on the list along with six other possible witnesses named for the first time. On August 3, 1989, defendant moved to exclude the new witnesses, including Dr. Shroder. The trial court ordered the exclusion of the testimony of Dr. Shroder and any other witnesses not disclosed on or before July 11, 1989.

recognized expert on the Thistle slide area. ² Plaintiffs' counsel contacted Dr. Shroder by telephone and concluded that his testimony would be beneficial to plaintiffs' case.

The plaintiffs' claim was tried to a jury from August 14th through August 29th of 1989. At the conclusion of trial, the jury rendered a special verdict in favor of defendant. The trial court entered judgment in favor of defendant, dismissing all claims with prejudice. Plaintiffs unsuccessfully moved for a new trial. They now raise several issues on appeal, including whether the trial court abused its discretion in excluding the testimony of expert witness Dr. Shroder. Inasmuch as our resolution of this issue demands a new trial, we do not reach the remaining allegations of error at trial.

STANDARD OF REVIEW

Trial courts have broad discretion in managing the cases assigned to their courts. See generally Utah R.Civ.P. 16. We will not interfere with a trial court's case management unless its actions amount to an abuse of discretion. See Dugan v. Jones, 615 P.2d 1239, 1244 (Utah 1980). Excluding a witness from testifying is, however, "extreme in nature and ... should be employed only with caution and restraint." Plonkey v. Superior, 106 Ariz. 310, 475 P.2d 492, 494 (1970). See also Nickey v. Brown, 7 Ohio App.3d 32, 454 N.E.2d 177 (1982) (exclusion is severe sanction which should be invoked only to enforce willful noncompliance).

If a trial court erroneously excludes a witness, we will reverse if the error was prejudicial to the substantial rights of a party. See generally Utah R.Civ.P. 61.

It is not always easy to tell when an error should be regarded as prejudicial.... [If] the error appears to be of such a nature that it can be said with assurance that it was of no material consequence in its effect upon the trial because reasonable minds would have arrived at the same result, regardless of such error, it would be harmless and the granting of a new trial would not be warranted. On the other hand, if it appears to be of sufficient moment that there is a reasonable likelihood that in the absence of such error a different result would have eventuated, the error should be regarded as prejudicial and relief should be granted. Measured by such considerations we assay the possible effect of the error complained of, realizing of course that it is now quite impossible to tell definitely whether the verdict would have been different.

....

[If] we cannot, with any degree of assurance, affirm that the use of such evidence would not have been helpful to the plaintiff, the doubt should be resolved in favor of allowing him to have a full and fair presentation of his cause to the jury.

Joseph v. W.H. Groves Latter-day Saints Hosp., 7 Utah 2d 39, 44, 318 P.2d 330, 333 (1957). ³ See also Morton Int'l, Inc. v.

State Tax Comm'n, 814 P.2d 581, 584 (Utah 1991) ("an error will be harmless if it is 'sufficiently inconsequential that there is no reasonable likelihood that the error affected the outcome of the proceedings' " (quoting State v. Verde, 770 P.2d 116, 120 (Utah 1989)) (emphasis added)).

ANALYSIS

Timeliness of Disclosure

Plaintiffs contend that inasmuch as there was no court order mandating disclosure by a certain date, they acted reasonably in relying on representations from defendant that August 1, 1989, was an acceptable date for submitting the final witness list. In particular, plaintiffs rely upon the July 12th letter referring to August 1st as the date defendant expected plaintiffs' final witness list. Plaintiffs also assert that their disclosure was reasonable inasmuch as it would have been timely under the proposed pre-trial order prepared by defendant's counsel indicating that new witnesses should be disclosed no later than ten days before trial.

Defendant, on the other hand, contends that despite any representations it may have made, plaintiffs were bound by a deadline set by the trial court. Cf. Christenson v. Jewkes, 761 P.2d 1375, 1377 (Utah 1988) (trial court had discretion to deny motion to continue trial despite parties' separate agreement to continue). According to defendant, the trial court set a deadline for the disclosure of witnesses when it indicated at the June 27th hearing that a pre-trial order was to be prepared within ten days. The trial court itself indicated at the August 3rd hearing on defendant's motion to exclude Dr. Shroder's testimony that it "expected" the witnesses to be listed in the pre-trial order.

A trial court's power to sanction a party for failure to cooperate in discovery comes from rule 37(b)(2) of the Utah Rules of Civil Procedure, which provides that if a party fails to obey an order entered under rule 26(f), the court may prohibit the offending party from introducing designated matters into evidence. Rule 26(f) addresses discovery conferences and directs that following a discovery conference the trial court shall enter an order "establishing a plan and schedule for discovery." As has been recognized by other states, ⁴ the necessary prerequisite to the imposition of a sanction is an order that "brings the offender squarely within possible contempt of court." Sexton v. Sugar Creek Packing Co., 38 Ohio App.2d 32, 311 N.E.2d 535, 538 (1973) (absent an order, a party may believe that the court has no objection to the information as supplied). See also Whitehead v. American Motors Sales Corp., 801 P.2d 920, 925-26 (Utah 1990) (improper to sanction defendant for not producing test films which did not fall within express terms of order). Cf. 8 Charles A. Wright and Arthur R. Miller, Federal Practice and...