Welsh v. Hosp. Corp. Of Utah Dba Lakeview Hosp.

• Decision Date: 24 June 2010
• Docket Number: No. 20090361-CA.,20090361-CA.
• Citation: 2010 UT App 171,235 P.3d 791
• Parties: Wayne L. WELSH and Carol Welsh, Plaintiffs and Appellants,v.HOSPITAL CORPORATION OF UTAH dba Lakeview Hospital, Defendant and Appellee.
• Court: Utah Court of Appeals

235 P.3d 791

2010 UT App 171

Wayne L. WELSH and Carol Welsh, Plaintiffs and Appellants,v.HOSPITAL CORPORATION OF UTAH dba Lakeview Hospital, Defendant and Appellee.

No. 20090361-CA.

Court of Appeals of Utah.

June 24, 2010.

Rodney G. Snow, Matthew A. Steward, and Aaron D. Lebenta, Salt Lake City, for Appellants.

Tawni J. Anderson, Stephen D. Alderman, and Shelley M. Doi, Salt Lake City, for Appellee.

Before Judges DAVIS, THORNE, and VOROS.

OPINION

VOROS, Judge:

¶ 1 We granted interlocutory appeal to review the trial court's order (1) denying the plaintiffs' Motion for Enlargement of Time to designate expert witnesses and submit expert reports, and (2) excluding the plaintiffs' experts from testifying at trial as a sanction for failure to adhere to discovery deadlines. We reverse and remand.

BACKGROUND

¶ 2 Plaintiffs Wayne L. Welsh and Carol Welsh (the Welshes) filed suit in February 2006 against Lakeview Hospital (Lakeview) claiming negligence and loss of consortium for injuries Mr. Welsh allegedly suffered while being treated there. Mr. Welsh sought treatment at Lakeview for temporary loss of consciousness, dizziness, and nausea. The Welshes allege that, during treatment, Mr. Welsh was left alone on an elevated examination table and fell. They further allege that, as a result, he suffered a fractured skull and a subdural hematoma and lapsed into a coma. Mr. Welsh underwent brain surgery and remained in a coma for several days. The Welshes allege that Mr. Welsh has suffered extensive brain damage, requiring significant continued medical care.

¶ 3 In August 2006, the trial court entered its first scheduling order. This scheduling order set deadlines for the completion of discovery, including designation of expert witnesses and submission of initial expert reports. By stipulation of the parties, the order was amended in May 2007 and again in February 2008 to allow more time for expert discovery. In June 2008, the Welshes' attorney, Nathan Wilcox, moved from the firm of Anderson & Karrenberg to the firm of Clyde Snow & Sessions, taking this case with him. On September 10, 2008, the parties submitted a proposal to amend the scheduling order for a third time. The trial court initially denied it. But after a telephone conference on September 30, 2008, the trial court entered a third amended scheduling order. The order warned that the case would be dismissed if it did not move forward:

[T]he case is 2 1/2 years old and we have received the 4th scheduling order. The Court will dismiss this case if it doesn't start moving forward. If the Court doesn't see some action, it will notice the case for Pretrial and determine what has been done and if it isn't moving forward, the Court will dismiss the action.

¶ 4 This scheduling order required the Welshes to submit their initial expert reports and designations no later than December 1, 2008. On November 26, 2008, Matthew Steward and Rodney Snow of Clyde Snow & Sessions entered their appearances as new counsel for the Welshes. On the same day and despite the court's warning, they filed a motion seeking an enlargement of time until January 9, 2009, to submit expert reports and designations. That motion stated two grounds: (1) the Welshes had new counsel and (2) Lakeview had contributed to the delay in the case by not making its employees available for depositions. The motion did not seek to extend the deadlines for submission of rebuttal expert reports or completion of expert discovery, or to affect the scheduling of trial.

¶ 5 On December 1, 2008, Lakeview filed a motion for summary judgment, arguing that no experts had been timely designated and that without expert testimony the Welshes would be unable to establish a prima facie case of negligence. The trial court later denied this motion on the ground that although the Welshes could not call expert witnesses at trial, they could pursue a res ipsa loquitur theory of liability.

¶ 6 While these motions were pending, the Welshes submitted their expert designations. They designated three experts: (1) a certified physician to testify to the standard of care and its alleged violation by Lakeview; (2) a life care specialist to testify to Mr. Welsh's future injury-related expenses; and (3) a forensic accountant to testify to Mr. Welsh's economic loss as a result of the injury.

¶ 7 On December 29, 2009, the court clerk made the following entry on the court's docket: “[The Welshes'] Motion to Enlarge Time is granted, last time. He needs to submit an order. I called his office this date.” Based on this phone call and docket entry, the Welshes submitted a proposed order extending their expert cutoff date to January 9, 2009. On January 9, 2009, the Welshes submitted their expert reports.

¶ 8 On January 22, 2009, nearly two weeks after the Welshes had submitted their expert reports, the trial court entered an order denying their motion for an enlargement. In addition, citing rule 37(b)(2) of the Utah Rules of Civil Procedure, the court barred any use of the Welshes' “belated expert discovery materials at trial” as a sanction for missing the December 1, 2008 deadline. The Welshes filed a Motion for Relief from this order. The trial court denied their motion in an order entered April 14, 2009. The April 14 order reaffirmed the court's earlier rulings and, for the first time, ruled that the Welshes' “failure to comply with the discovery order was willful in that the plaintiffs' failure to comply was not due to involuntary noncompliance.” We granted review of this interlocutory order.

ISSUE AND STANDARD OF REVIEW

¶ 9 The Welshes contend that the trial court erred by denying their motion to extend the deadline and by excluding their experts from testifying. “Trial courts have broad discretion in managing the cases assigned to their courts.” Posner v. Equity Title Ins. Agency, Inc., 2009 UT App 347, ¶ 23, 222 P.3d 775 (alteration and internal quotation marks omitted). As part of that discretion, rule 16 of the Utah Rules of Civil Procedure allows the trial court to set dates for the completion of discovery. See Utah R. Civ. P. 16(b)(3). Rule 16 also authorizes the trial court to impose the sanctions listed in rule 37(b)(2) of the Utah Rules of Civil Procedure if a party “fails to obey a scheduling or pretrial order.” Id. R. 16(d). Under rule 37, excluding evidence is one of the sanctions that may be imposed on a party who violates rule 16: “If a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may take such action in regard to the failure as are [sic] just, including ... prohibit the disobedient party ... from introducing designated matters in evidence....” Id. R. 37(b)(2), (b)(2)(B). However, “[b]efore a trial court can impose discovery sanctions under rule 37, the court must find on the part of the noncomplying party willfulness, bad faith, ... fault, or persistent dilatory tactics frustrating the judicial process.” Morton v. Continental Baking Co., 938 P.2d 271, 274 (Utah 1997) (citations and emphasis omitted). Once that finding is made, “the choice of an appropriate discovery sanction is primarily the responsibility of the trial judge,” id. (internal quotation marks omitted), and we will then only disturb that discovery sanction if “abuse [is] clearly shown.” Kilpatrick v. Bullough Abatement Inc., 2008 UT 82, ¶ 23, 199 P.3d 957 (alteration in original).

¶ 10 However, a trial court's discretion to exclude expert witness testimony is not absolute. “Excluding a witness from testifying is ... extreme in nature and ... should be employed only with caution and restraint.” Berrett v. Denver & Rio Grande W. R.R., 830 P.2d 291, 293 (Utah Ct.App.1992) (internal quotation marks omitted). “On occasion, justice and fairness will require that a court allow a party to designate witnesses, conduct discovery, or otherwise perform tasks covered by a scheduling order after the court-imposed deadline for doing so has expired.” Boice v. Marble, 1999 UT 71, ¶ 10, 982 P.2d 565.

ANALYSIS

¶ 11 The Welshes challenge the trial court's finding of willfulness on two grounds. They first argue that the trial court's reliance on its finding of willfulness is “improper” because the April 14 finding of willfulness was an “after-the-fact” justification for the sanction imposed by the court on January 22. They also argue that the facts do not support a finding of willfulness. Lakeview counters that the trial court need not make a finding of willfulness at all and that, in any event, the facts here demonstrate willfulness.

¶ 12 The willfulness standard in this context is low. Wilfulness has been interpreted to mean “any intentional failure as distinguished from involuntary noncompliance. No wrongful intent need be shown.” Utah Dep't of Transp. v. Osguthorpe, 892 P.2d 4, 8 (Utah 1995). And a trial court need not specifically state that willfulness, bad faith, fault, or persistent dilatory tactics are present to impose sanctions under rule 37(b)(2). See Preston & Chambers, PC v. Koller, 943 P.2d 260, 263 (Utah Ct.App.1997) (affirming sanctions for dilatory tactics where the trial court did not specifically articulate a finding that dilatory tactics were present but where findings supporting that conclusion were located in the record). We will affirm so long as “the findings appear in the lower court's opinion or elsewhere to sufficiently indicate the factual basis for the ultimate conclusion.” Id. Here, however, we need not resolve the question of willfulness, because whether the Welshes' noncompliance was voluntary or not, we conclude that the trial court abused its discretion in its “choice of an appropriate discovery sanction,” See Morton, 938 P.2d at 275.

¶ 13 A number of factors separate this case from others of this type. First, this is not a case where the sanctioned party “assume[d] that the trial judge had some duty to allow [it] to violate the discovery orders for any or no reason.” DeBry v. Cascade Enters., ...