Blank v. Garff Enterprises Inc

2021 UT App 6

THE UTAH COURT OF APPEALS

ANDREW BLANK AND KATHLEEN BLANK,
Appellants,
v.
GARFF ENTERPRISES INC., MERCEDES BENZ US INTERNATIONAL,
AND MERCEDES BENZ USA LLC,
Appellees.

Opinion
No. 20190070-CA
Filed January 22, 2021

Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 110907788

Kevin N. Anderson, Matthew S. Brahana, and
Charles M. Auslander, Attorneys for Appellants
John A. Anderson, Lauren DiFrancesco, Justs N.
Karlsons, Garrett Sanderson III, and David M. Rice,
Attorneys for Appellees

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.

HAGEN, Judge:

¶1 Andrew and Kathleen Blank appeal the district court’s
orders dismissing their products liability claims against the
manufacturer, retailer, and distributor of their vehicle. In their
suit, the Blanks alleged that their vehicle was not crashworthy
and that defects in the vehicle caused them to suffer more severe
injuries than they otherwise would have when a drunk driver
rear-ended them. On appeal, they argue that the district court
abused its discretion by excluding expert declarations and
subsequently granting summary judgment dismissing the claims
 Blank v. Garff Enterprises Inc.

relating to Kathleen’s injuries. They also allege that the court
improperly entered a directed verdict on Andrew’s negligence
claim. Further, they argue that the district court made several
evidentiary errors, the cumulative impact of which requires
reversal. We conclude that the district court correctly granted
summary judgment on the claims related to Kathleen’s injuries,
correctly entered a directed verdict on Andrew’s negligence
claim, and that any evidentiary errors were harmless.
Accordingly, we affirm.

BACKGROUND

¶2 Kathleen and Andrew Blank were involved in an
automobile collision in 2009. Kathleen was driving their 2008
Mercedes sport utility vehicle (the SUV) with Andrew in the
passenger seat. On a freeway near Salt Lake City, the Blanks
were rear-ended by a BMW vehicle traveling over 100 miles per
hour. The driver of the BMW was intoxicated, and the collision
killed one of his passengers. 1

¶3 The force of the BMW’s impact sent the SUV careening
into a metal guardrail. The collision with the guardrail caused
the passenger-side curtain airbag to deploy. Then, the SUV
struck a metal support pole, which caused the driver-side front
airbag to deploy. The BMW once again struck the SUV,
ultimately causing a partial rollover in which the SUV tipped on
its side before righting itself. The Blanks sustained serious
injuries.

1. The driver of the BMW was convicted of manslaughter and
driving under the influence and he is currently serving a prison
term. Prior to the resolution of this case, the Blanks resolved civil
claims against the driver, along with his employer, co-workers,
and the bar where the driver had been drinking.

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¶4 On March 31, 2011, the Blanks filed suit against Mercedes
Benz US International, the manufacturer of the SUV; Mercedes
Benz USA LLC, the United States distributor of the SUV; and
Garff Enterprises Inc., the ultimate seller of the SUV (collectively,
Mercedes). Their complaint alleged claims on behalf of both
Kathleen and Andrew for negligence, strict products liability,
and loss of consortium. The Blanks’ claims relied on the theory
that “their injuries had been enhanced due to the presence of
defects related to the airbag system, the sensor system built into
the passenger seat, and the passenger seat.”

¶5 On December 17, 2016, after liability discovery had
closed, 2 Mercedes moved for summary judgment, seeking
dismissal of Kathleen’s claims and Andrew’s loss of consortium
claim, all of which relied on a theory that a defect on the driver
side of the SUV exacerbated Kathleen’s injuries. Mercedes
argued that Kathleen had presented no evidence that a defect in
the driver side of the SUV contributed to her injuries.

¶6 In response to the motion, the Blanks submitted three new
declarations from their experts that, for the first time, contained
their opinions that a defect in the SUV enhanced Kathleen’s
injuries. Specifically, the Blanks attached declarations from two
liability experts who had confirmed in their prior depositions
that they did not attribute Kathleen’s injuries to any defect in the
vehicle. The Blanks also attached a declaration from one of their
damages experts, a neuropsychologist, who opined that “the
brain injury [Kathleen] sustained was brought on by
multifactorial processes, probably initiated with the first impact

2. The district court had bifurcated expert discovery between
liability discovery and damages discovery. While liability-expert
discovery had closed at the time Mercedes moved for partial
summary judgment, damages-expert discovery was still
ongoing.

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but then also influenced by rotational forces and the secondary
impact associated with the rollover” and that “these
biomechanical factors sum together to result in the significant
traumatic brain injury that Kathleen Blank sustained in this
motor vehicle accident.” Mercedes moved to strike the
declarations, arguing that they were “sham affidavits” or,
alternatively, that they contravened rule 26 of the Utah Rules of
Civil Procedure, which requires parties to timely supplement
their discovery disclosures.

¶7 The district court struck the new declarations, reasoning
that the Blanks failed to comply with rule 26. It further reasoned
that without the new declarations, Kathleen could not establish
that the SUV contained a defect that caused her enhanced
injuries. Therefore, the district court granted Mercedes’s motion
for summary judgment and dismissed Kathleen’s strict liability
and negligence claims, along with Andrew’s loss of consortium
claim.

¶8 Andrew’s remaining claims, along with Kathleen’s loss of
consortium claim, were tried to a jury. At trial, both sides
presented extensive evidence as to whether the SUV contained a
defect, how such a defect enhanced Andrew’s injuries, and the
extent of his damages. The jury also heard evidence describing
the role of the drunk driver, his employer and co-workers, and
the bar that served him alcohol before the collision, so that the
jury could apportion comparative fault if it found Mercedes
liable.

¶9 At the close of evidence, Mercedes moved for a directed
verdict on Andrew’s negligence claim. Mercedes primarily
argued that the Blanks had not presented sufficient evidence as
to the standard of care for an auto manufacturer, whether the
parties breached that standard, and whether a safer alternative
design for the passenger seat existed. The court granted the
directed verdict.

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¶10 The jury ultimately returned a special verdict finding that
the SUV did not contain a defect. Because the jury found that no
defect existed, it did not reach the issues of damages or
comparative fault. On December 28, 2018, the district court
entered a final judgment in favor of Mercedes.

ISSUES AND STANDARDS OF REVIEW

¶11 The Blanks now appeal, raising three issues. First, they
contend that the district court erred by applying rule 26 of the
Utah Rules of Civil Procedure, rather than rule 16, when it struck
the new expert declarations. “Interpretation of the Utah Rules of
Civil Procedure is a question of law that we review for
correctness.” Pete v. Youngblood, 2006 UT App 303, ¶ 7, 141 P.3d
629. The Blanks further argue that, having struck the
declarations, the district court improperly granted Mercedes’s
motion for summary judgment. “This court . . . reviews a district
court’s entry of summary judgment for correctness and gives its
conclusion of law no deference.” Ghidotti v. Waldron, 2019 UT
App 67, ¶ 8, 442 P.3d 1237 (cleaned up).

¶12 Second, the Blanks argue that the district court erred by
granting Mercedes’s motion for a directed verdict on Andrew’s
negligence claim. Specifically, they contend that “there was
sufficient evidence presented on each negligence element.” We
review the district court’s “grant or denial of a motion for
directed verdict for correctness” and “will sustain a directed
verdict if, after examining all evidence in a light most favorable
to the non-moving party, there is no competent evidence that
would support a verdict in the nonmoving party’s favor.”
Francis v. National DME, 2015 UT App 119, ¶ 22, 350 P.3d 615
(cleaned up).

¶13 Third, the Blanks argue that the court erred by “admitting
over objection irrelevant and excessively prejudicial evidence the

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cumulative impact of which requires reversal of the jury’s
verdict.” “A district court’s decision to admit or exclude
evidence is generally reviewed for an abuse of discretion, unless
it involves a legal question, which is reviewed for correctness.”
McKelvey v. Hamilton, 2009 UT App 126, ¶ 17, 211 P.3d 390
(cleaned up).

ANALYSIS

I. Summary Judgment on Claims relating to Kathleen’s Injuries

¶14 On appeal, the Blanks first argue that the district court
improperly granted Mercedes’s motion for partial summary
judgment after striking the expert declarations the Blanks
submitted in response to that motion. “Summary judgment is
appropriate if ‘there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of
law.’” Simons v. Sanpete County, 2018 UT App 106, ¶ 8, 427 P.3d
467 (quoting Utah R. Civ. P. 56(a)).

¶15 The Blanks challenge the summary judgment ruling on
two alternative grounds. First, they argue that the district court
abused its discretion in striking their new expert declarations,
asserting that it applied the wrong legal standard. Alternatively,
they argue that even if the court properly struck the declarations,
summary judgment should have been denied because the expert
testimony at issue was not necessary to prove Kathleen’s claims.
We address each argument in turn.

A. Exclusion of Declarations

¶16 The Blanks argue that the district court misapplied the
Utah Rules of Civil Procedure in excluding their expert

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declarations regarding the cause of Kathleen’s enhanced
injuries. 3 The court reasoned that the opinions had not been
timely disclosed pursuant to rule 26, thereby triggering the
application of rule 37, requiring exclusion unless the proponent
can demonstrate that the nondisclosure was either harmless or
excused by good cause. The Blanks argue that their expert
disclosures were merely late under rule 16 and that the court
had the discretion to fashion a less drastic remedy than exclusion
of the evidence. We conclude that the court correctly applied
rules 26 and 37(f) of the Utah Rules of Civil Procedure, rather
than rule 16.

¶17 Subsection (a)(3)(C) of rule 26 requires that expert
testimony disclosures occur within 30 days of the expiration of
fact discovery “or, if the evidence is intended solely to contradict
or rebut evidence on the same subject matter identified by
another party . . . , within 60 days after the disclosure made by
the other party.” Utah R. Civ. P. 26(a)(3)(C) (2010). 4 Further,

3. On appeal, the Blanks contest only the exclusion of the two
declarations from their liability experts. They do not address the
third declaration from their damages expert nor do they attempt
to explain whether the court’s exclusion of that declaration was
erroneous.

4. Rules 26 and 37 of the Utah Rules of Civil Procedure were
amended in 2011; however, these amendments apply only to
cases filed on or after November 1, 2011, and are therefore not
applicable to this case. See Utah R. Civ. P. 1 advisory committee’s
notes to 2011 amendment; see also Townhomes at Pointe Meadows
Owners Ass’n v. Pointe Meadows Townhomes, LLC, 2014 UT App
52, ¶ 13 n.2, 329 P.3d 815 (explaining that revised rules 26 and 37
are not retroactively applicable). Accordingly, we cite the 2010
versions of these rules throughout this opinion.

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subsection (e)(1) creates “a duty to supplement at appropriate
intervals disclosures under subdivision (a) if the party learns
that in some material respect the information disclosed is
incomplete or incorrect.” Id. R. 26(e)(1).

¶18 The advisory committee notes to rule 26 explain that, “if a
party fails to comply with the disclosure rule, Rule 37(f) requires
the court to prohibit the use of the witness or evidence at trial
unless the failure was harmless or there is good cause for the
failure.” Id. R. 26 advisory committee’s notes to 1999
amendments. Rule 37(f) codifies that standard, stating that when

a party fails to disclose a witness, document or
other material as required by Rule 26(a) or Rule
26(e)(1), or to amend a prior response to discovery
as required by Rule 26(e)(2), that party shall not be
permitted to use the witness, document or other
material at any hearing unless the failure to
disclose is harmless or the party shows good cause
for the failure to disclose.

Id. R. 37(f).

¶19 On the other hand, rule 16(d) of the Utah Rules of Civil
Procedure applies “when evidence is produced late under the
scheduling order.” Coroles v. State, 2015 UT 48, ¶ 23, 349 P.3d
739. The rule gives the court discretion to “take any action
authorized by Rule 37(b)(2)” to remedy a late disclosure. See
Utah R. Civ. P. 16(d). Rule 37(b)(2) lists various sanctions
available to the court, including ordering “the party or the
attorney to pay the reasonable expenses . . . caused by the
failure.” See id. R. 37(b)(2)(D). Our supreme court has
highlighted the practical difference between the rules, explaining
that “[w]hile rule 16(d) leaves the decision of whether to

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sanction a party to the broad discretion of the district court,” rule
37(f) 5 “imposes a structure whereby the court ‘shall’ exclude an
undisclosed witness [or document] ‘unless’ the party shows
either harmlessness or good cause.” Coroles, 2015 UT 48, ¶ 22
(quoting Utah R. Civ. P. 37(f)).

¶20 Here, as the district court noted, the Blanks designated
several liability experts who, in their “Rule 26 expert reports,
rebuttal reports, and in deposition, . . . identified purported
defects in the passenger-side seat and restraint systems, but did
not identify any defects in the driver-side seat and restraint
systems,” where Kathleen was seated at the time of the collision.
Mercedes designated its own liability experts, disclosed their
written reports, and made the experts available for depositions.
The last deposition of a liability expert took place on January 7,
2016.

¶21 On December 17, 2016, after expert discovery on liability
issues had closed, Mercedes filed its motion for summary
judgment. At that point, the Blanks’ experts had provided no
testimony to support the claim that a defect contributed to
Kathleen’s injuries. It was not until January 17, 2017—over a
year after deposing the last liability expert—that the Blanks
submitted declarations opining that there was a defect in the
driver-side airbags. This was not a case where the Blanks simply
disclosed new opinions late under a scheduling order. Instead,
they failed to disclose the opinions at all until after liability
discovery had closed and a summary judgment motion had been
filed. By failing to timely supplement their expert disclosures
with evidence that a defect had caused Kathleen’s injuries—and

5. In 2014, subsection (f) of rule 37 was located in subsection (h).
Compare Utah R. Civ. P. 26 (2010), with id. (2014). As a result,
Coroles refers to rule 37(h) when interpreting the relevant
language.

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only doing so after the filing of a dispositive motion that relied
on the fact that no such evidence had been disclosed during
liability discovery—the Blanks plainly violated rule 26.

¶22 The failure to comply with the disclosure requirements of
rule 26 triggered the application of rule 37, requiring the
exclusion of that evidence unless the Blanks showed that their
failure to disclose was either harmless or excused by good cause.
“Accordingly, the proper inquiry [on appeal] is whether the
district court abused its discretion in determining that the
[Blanks’] failure to disclose was not harmless and that good
cause did not excuse [their] failure.” See Sleepy Holdings LLC v.
Mountain West Title, 2016 UT App 62, ¶ 24, 370 P.3d 963 (cleaned
up). We conclude that both determinations were well within the
court’s discretion.

¶23 First, the district court found that the failure to disclose
was not harmless. As the court aptly noted, “the orderly
resolution of cases, particularly complex cases such as this one,
require[s] timely disclosure and the ability to rely on what has—
and has not—been disclosed to chart out the next steps to move
litigation to conclusion.” At a minimum, the Blanks’
supplemental expert disclosures would have required reopening
liability discovery, delaying the resolution of the case and
increasing the expense of litigation. Parties rely on rule 26
disclosures to “make better informed choices about the
discovery they want to undertake or, just as important, what
discovery they want to forgo.” RJW Media Inc. v. Heath, 2017 UT
App 34, ¶ 25, 392 P.3d 956. If the Blanks had disclosed their
expert testimony linking Kathleen’s injuries to a defect in the
SUV, it would have informed Mercedes’s approach to discovery,
as well as the opinions reached by their own experts. In addition,
Mercedes relied on the lack of expert testimony when it incurred
the effort and expense of preparing a motion for summary
judgment on Kathleen’s claims. See Segota v. Young 180 Co., 2020
UT App 105, ¶ 22, 470 P.3d 479 (affirming the district court’s

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determination that the discovery violations were not harmless,
in part because the failure to disclose “caused the defendants to
file and litigate motions, necessitating the expenditure of
attorney fees and costs”). We agree with the district court that
“[a]llowing parties to disclose expert opinions that are central to
a case only in response to a dispositive motion would seriously
frustrate the orderly resolution of these kinds of cases.” Under
these circumstances, the district court acted well within its
discretion in concluding that the Blanks’ failure to comply with
rule 26 was not harmless.

¶24 Second, the district court found that the Blanks could not
show good cause for their failure to timely supplement the
disclosures. The Blanks contend that good cause exists because
their experts’ new opinions were based on new information
learned after Mercedes’s experts had been deposed. As an initial
matter, the Blanks had the burden of proving the existence of a
defect that contributed to Kathleen’s injuries as part of their
prima facie case, independent from any expert testimony that
Mercedes might offer. See Burns v. Cannondale Bicycle Co., 876
P.2d 415 (“[A] products liability claim requires proof of a specific
defect, which in turn caused the plaintiff’s injury.”). In any
event, the depositions of Mercedes’s experts occurred more than
a year prior to the supplemental disclosure. The district court
found that the experts had “all the information they would have
needed to form these opinions at the time of their reports or by
the time of their depositions (and definitely knew everything
they needed to know after the completion of depositions of
[Mercedes’s] liability experts).” Yet the Blanks did not
supplement their expert disclosures at any of these points and
instead waited until Mercedes’s motion for partial summary
judgment was filed. Because the Blanks have not shown that
the failure to disclose was either harmless or excused by
good cause, the district court correctly excluded the
evidence under rule 37(f).

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B. Necessity of Expert Testimony

¶25 Having excluded the opinions contained in the new
expert declarations, the district court granted Mercedes’s motion
for partial summary judgment on Kathleen’s strict liability and
negligence claims and Andrew’s loss of consortium claim
because the Blanks had presented no evidence to support their
theory that a defect on the driver side of the SUV caused
Kathleen’s enhanced injuries. The Blanks argue that even if the
court properly struck the new declarations, the remaining
evidence supporting those claims was sufficient to defeat
summary judgment.

¶26 “A plaintiff’s failure to present evidence that, if believed
by the trier of fact, would establish any one of the elements of
the prima facie case justifies a grant of summary judgment to the
defendant.” Niemela v. Imperial Mfg., Inc., 2011 UT App 333, ¶ 7,
263 P.3d 1191 (cleaned up). Here, the Blanks asserted three
causes of action relating to the enhanced injuries Kathleen
allegedly sustained in the crash. “An enhanced injury occurs
when an injury caused by some other event is increased or
enhanced due to a defective product.” Egbert v. Nissan Motor Co.,
2010 UT 8, ¶ 23, 228 P.3d 737. To establish a claim for either strict
liability or negligence, Kathleen was required to prove, among
other things, that the SUV was defective and that the defect
caused her enhanced injuries. 6 See Niemela, 2011 UT App 333,

6. “A plaintiff must prove three elements to succeed in a strict
products liability suit: (1) that the product was unreasonably
dangerous due to a defect or defective condition, (2) that the
defect existed at the time the product was sold, and (3) that the
defective condition was a cause of the plaintiff's injuries.”
Niemela v. Imperial Mfg., Inc., 2011 UT App 333, ¶ 8, 263 P.3d 1191
(cleaned up). “A plaintiff claiming negligence in this context
(continued…)

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¶¶ 9–10, 17, 22. Andrew’s derivative claim for loss of consortium
depended on the viability of Kathleen’s products liability claims
as well. See Fox v. Brigham Young Univ., 2007 UT App 406, ¶ 24,
176 P.3d 446 (citing Utah Code Ann. § 30-2-11(5)(a), (b)).

¶27 Before the Blanks’ opposition to Mercedes’s motion for
partial summary judgment, no expert witness had opined that a
defect in the driver side of the SUV caused Kathleen to suffer
enhanced injuries. It was only in the three declarations attached
to their opposition, which the court ultimately excluded, that the
experts opined that the non-deployment of the driver-side
curtain airbag constituted a defect rendering the SUV
unreasonably dangerous and that the defect had enhanced
Kathleen’s injuries. Once the court struck the three declarations,
the Blanks had no expert testimony to establish a defect in the
SUV that caused Kathleen’s enhanced injuries.

¶28 However, the Blanks contend that “even in the absence of
conflicting plaintiffs’ expert testimony, the facts presented by
[Mercedes] sufficed to defeat summary judgment.” Specifically,
the Blanks contend that there was a question of fact as to
whether, in the absence of a defect, the driver-side curtain airbag
should have deployed during the partial rollover. Although
Mercedes’s experts opined that Kathleen’s curtain airbag should
not have deployed, the Blanks argue that the jury was free to
reject that testimony because “it could be obvious to the
layperson that a high-speed crash resulting in several impacts
and a rollover event recognized by the airbag control unit but
nonetheless not directing the airbag to deploy, was unreasonably
dangerous and a foreseeable cause” of Kathleen’s enhanced
injuries.

(…continued)
must prove the ordinary elements of negligence, including duty
and causation.” Id. ¶ 17.

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¶29 Utah courts have not squarely decided whether a plaintiff
can prove the existence of a defect in a products liability action
without expert testimony. 7 But generally in cases involving
“scientific matters beyond the capacity of an ordinary juror,”
expert testimony is needed for plaintiffs to make out a prima
facie case. See Graves v. North E. Services, Inc., 2015 UT 28, ¶ 40,
345 P.3d 619. In particular, expert testimony may be necessary in
cases that involve trades or professions that require specialized
knowledge, “such as medicine, architecture, and engineering.”
See Townhomes at Pointe Meadows Owners Ass'n v. Pointe Meadows
Townhomes, LLC, 2014 UT App 52, ¶ 20, 329 P.3d 815 (cleaned
up) (holding that expert testimony was required to prove
construction defect claims). As the district court recognized,
“[i]ssues related to the forces necessary to trigger these kinds of

7. In a federal case applying Utah law, the United States Court of
Appeals for the Tenth Circuit concluded that expert testimony is
not required to prove the existence of a defect in a products
liability case. See Taylor v. Cooper Tire & Rubber Co., 130 F.3d 1395,
1398 (10th Cir. 1997). In Taylor, the federal district court excluded
the plaintiff’s expert testimony, finding that the expert was not
“qualified to testify that the tire failure in this case was the result
of a manufacturing defect.” Id. It then granted a motion to
dismiss, believing “that to recover for manufacturing defect
under Utah law, a plaintiff is required to prove the element of
product defect with expert testimony.” Id. The Tenth Circuit
affirmed the exclusion of the expert’s testimony but reversed the
dismissal. Id. at 1397–98. The court explained, “Our reading of
Utah law persuades us that no such rule has been established in
Utah and that the general trend in the law is that plaintiffs may
prove product defect through circumstantial evidence.” Id. at
1398. There are no Utah cases citing Taylor or otherwise
addressing whether the Tenth Circuit’s interpretation of Utah
law is correct.

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safety restraint systems, when they should trigger, and when
they should not trigger lest they themselves cause injury to
vehicle occupants are complicated engineering issues that are
not within the knowledge or experience of average jurors.” We
agree with the district court that the functioning of an
automobile restraint system is the type of specialized knowledge
beyond the ken of the average juror.

¶30 In any event, even if the alleged defect had been self-
evident, the Blanks provided no evidence to meet their burden
of proof on causation. The question of causation is generally
reserved for the jury, but the district court “may rule as a matter
of law on this issue if there is no evidence to establish a causal
connection, thus leaving causation to jury speculation.” Niemela,
2011 UT App 333, ¶ 22 (cleaned up). “Utah courts generally
require expert testimony to prove causation in tort cases in all
but the most obvious cases.” Ladd v. Bowers Trucking, Inc., 2011
UT App 355, ¶ 10, 264 P.3d 752 (cleaned up). Whether “a
plaintiff may be excepted from the requirement of using expert
testimony to prove causation” often depends on the nature of
the injury. See Niemela, 2011 UT App 333, ¶ 22 (cleaned up).

¶31 For example, we have required expert witnesses to defeat
summary judgment in a “complex case involving obscure
medical details, including several brain injuries, and three
automobile accidents, each of which could have potentially
caused some or all of [the plaintiff’s] injuries.” Ladd, 2011 UT
App 355, ¶ 12. In Ladd, the plaintiff, a passenger in a pickup
truck, was injured after the driver lost control of the vehicle. Id.
¶ 2. The pickup rolled and then was struck by two different
vehicles. Id. The plaintiff sustained substantial injuries. Id. The
district court granted summary judgment to the defendant
because the plaintiff had failed to designate an expert witness
regarding causation. Id. ¶ 5. We affirmed, agreeing with the
district court that without expert testimony establishing
causation, the factfinder is invited “not to simply infer that the

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impact caused his injuries but to speculate as to which injuries it
caused.” Id. ¶ 12.

¶32 As in Ladd, the district court here recognized that the
“jury ultimately will need to decide the degree to which the
injuries were caused by a defect . . . and whether those injuries
would have been different had the same crash occurred in a
crashworthy vehicle.” And, as the district court concluded,
“[w]ithout the guidance of expert testimony on these
complicated questions, the jury would be left to speculate.” We
agree. Differentiating between any injuries caused by the non-
deployment of the airbag and the injuries that would have
otherwise occurred as a result of the collision is not within the
common knowledge of the average layperson. Thus, expert
testimony on causation was required to defeat Mercedes’s
motion for partial summary judgment.

¶33 Without any expert testimony establishing a causal
connection between the claimed defect in the driver-side airbag
and Kathleen’s alleged enhanced injuries, there was no genuine
issue of material fact for trial on those claims. Therefore, the
court properly granted Mercedes’s motion for partial summary
judgment on Kathleen’s strict liability and negligence claims, as
well as on Andrew’s derivative claim for loss of consortium.

II. Directed Verdict

¶34 Next, the Blanks argue that the district court erroneously
granted Mercedes’s directed verdict motion on Andrew’s
negligent design claim. “A motion for directed verdict can be
granted only when the moving party is entitled to judgment as a
matter of law.” Gables at Sterling Village Homeowners Ass’n, Inc. v.
Castlewood-Sterling Village I, LLC, 2018 UT 04, ¶ 21, 417 P.3d 95
(cleaned up). Further, “a trial court is justified in granting a
directed verdict only if, examining all evidence in a light most
favorable to the non-moving party, there is no competent

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evidence that would support a verdict in the non-moving party’s
favor.” Id. (cleaned up).

¶35 The designer of a product “has a duty to design its
product so as to eliminate any unreasonable risk of foreseeable
injury.” Hunt v. ESI Eng’g, Inc., 808 P.2d 1137, 1139 (Utah Ct.
App. 1991) (cleaned up). “However, it is . . . clear that one cannot
be held liable for a [negligent] defective design if one did not, in
fact, create such design.” Id.

¶36 Here, the Blanks concede that none of the parties to this
action was responsible for designing the SUV or its components.
Indeed, during the court’s discussion of whether to grant the
directed verdict on Andrew’s negligence claim, the court asked
the Blanks to identify what evidence was presented of a
negligent design claim against the three entities, to which their
counsel replied, “absolutely nothing” and that it “wouldn’t be a
negligent design claim.” Yet in their opening brief on appeal, the
Blanks argue solely that evidence supporting a “breach of a duty
of care in designing a safe passenger seat” precluded a directed
verdict. 8 Because none of the entities designed the SUV or its
component parts, they could not be held liable for negligent

8. In their reply brief, the Blanks argue that Andrew’s negligence
claim was not limited to negligent design but also encompassed
negligent manufacturing and negligent failure to warn.
However, “[w]e do not consider issues raised for the first time in
reply briefs.” State v. Boyer, 2020 UT App 23, ¶ 83 n.13, 460 P.3d
569. In any event, the Blanks’ negligent failure to warn claim was
dismissed prior to trial, a ruling they do not appeal. And, at oral
argument on appeal, counsel for the Blanks conceded that the
SUV was manufactured in accordance with design plans and
that any negligent manufacturing claim was based on a design
defect.

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 Blank v. Garff Enterprises Inc.

design. Accordingly, we affirm the directed verdict on Andrew’s
negligence claim.

III. Evidentiary Errors

¶37 Lastly, the Blanks contend that the court made several
evidentiary errors, the cumulative impact of which requires a
new trial. However, “an erroneous decision to admit or exclude
evidence does not constitute reversible error unless the error is
harmful.” Jensen v. IHC Hosps., Inc., 2003 UT 51, ¶ 100, 82 P.3d
1076 (cleaned up). “An error is harmful if it is reasonably likely
that the error affected the outcome of the proceedings.” Id.
(cleaned up).

¶38 The Blanks contend that the court erred in allowing
Mercedes to introduce three categories of improper evidence: (1)
evidence relating to the non-party tortfeasors’ “immoral and
criminal behavior,” including evidence related to the drunk
driver’s behavior before and after the collision; (2) collateral
source evidence related to the Blanks’ previous lawsuit and
settlement with the drunk driver and evidence related to their
efforts to obtain additional compensation from their insurance
company; and (3) “evidence relating to the Blanks’ ‘privileged’
lifestyle.” 9

¶39 However, none of the challenged evidence relates to
whether the SUV contained a defect, which was the only
question the jury reached in returning its special verdict. Instead,
the challenged evidence went to the amount of damages and the

9. The Blanks further argue that the district court erroneously
granted Mercedes’s motion to exclude evidence of lost profits of
Andrew’s business. However, because we affirm the jury’s
verdict, and this evidence relates only to the amount of damages
suffered by the Blanks, we need not reach this issue.

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 Blank v. Garff Enterprises Inc.

relative fault of third parties, questions that the jury had no
occasion to reach once it found there was no defect. Even
assuming, without deciding, that the challenged evidence was
erroneously admitted, the Blanks cannot demonstrate a
reasonable likelihood that the evidence impacted the jury’s
verdict. Therefore, the alleged errors were harmless and do not
warrant reversal.

CONCLUSION

¶40 The district court correctly excluded the new expert
declarations under rule 37(f) of the Utah Rules of Civil
Procedure and properly granted summary judgment on
Kathleen’s claims and Andrew’s loss of consortium claim.
Further, the court correctly granted a directed verdict on
Andrew’s negligent design claim. Lastly, any error made by the
district court in admitting certain evidence was harmless.
Accordingly, we affirm.

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