2014 UT App 243
_________________________________________________________
THE UTAH COURT OF APPEALS
BRADLEY R. CALLISTER,
Plaintiff and Appellant,
v.
SNOWBIRD CORPORATION,
Defendant and Appellee.
Opinion
No. 20130269-CA
Filed October 17, 2014
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 090921989
J. Scott Cottingham, Attorney for Appellant
Adam Strachan, Attorney for Appellee
SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGE JOHN A. PEARCE and SENIOR JUDGE RUSSELL W.
BENCH concurred.1
GREENWOOD, Senior Judge:
¶1 Bradley R. Callister appeals from the district court’s grant of
summary judgment in favor of Snowbird Corporation. Callister
argues that summary judgment was inappropriate because expert
testimony was not necessary to pursue his claims and because his
reliance on the doctrine of res ipsa loquitur should have been
sufficient to withstand summary judgment. He further argues that
1. The Honorable Pamela T. Greenwood and Russell W. Bench,
Senior Judges, sat by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 11-201(6).
Callister v. Snowbird Corp.
if expert testimony was required, then the district court abused its
discretion when it refused to extend the discovery deadlines so that
he could designate an appropriate expert witness.
¶2 For the reasons stated below, we affirm the district court’s
grant of summary judgment in favor of Snowbird.
BACKGROUND
¶3 On January 1, 2006, Callister was skiing at Snowbird, a ski
resort, with a friend.2 At one point, when he was near tram tower
#3 but outside the ropes surrounding the tower, Callister stopped
to take off his goggles and remove an irritant from his eye. He did
not look to see if a tram was approaching. While he was stopped
and facing uphill, the tram approached him from behind and the
tram, or something hanging beneath the tram, hit him. The impact
threw Callister forward toward the tower and he landed face down
in the snow. Callister was in great pain, felt the onset of a massive
headache, experienced vision problems, had difficulty breathing,
and nearly passed out. Callister was able to slowly ski down the
mountain, and his friend transported him to the hospital. There
were no witnesses to the incident.
¶4 On December 30, 2009, Callister filed suit against Snowbird,
alleging causes of action for negligence, gross negligence, premises
liability, respondeat superior, and negligent supervision. In
essence, his argument was that Snowbird had a duty to exercise
reasonable care and had “negligently and carelessly breached that
duty by failing to rope off a larger area around tower #3, failing to
put up signs warning that the tram passes so low that it can hit
skiers, and failing to adequately dig out the snow where [Callister]
got hit.” An Acceptance of Service by Snowbird was filed a few
months later. On January 3, 2011, after about a year had passed
without further filings, the district court issued a notice of order to
2. “When reviewing summary judgment, we recite the facts in a
light most favorable to the nonmoving party.” Kilpatrick v. Wiley,
Rein & Fielding, 909 P.2d 1283, 1286 (Utah Ct. App. 1996).
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show cause why the case should not be dismissed. At the hearing
on the order, which was held on March 14, 2011, the parties
presented a Stipulated Case Management Order that the district
court signed and entered.
¶5 The parties, however, failed to comply with the deadlines
specified in the Stipulated Case Management Order, and there
were no filings for yet another year. On April 3, 2012, the district
court entered a second notice of order to show cause why the case
should not be dismissed. After entry of this order, Callister served
his initial disclosures. At the hearing on the second order to show
cause, the district court ordered counsel to submit another
scheduling order or a certificate of readiness for trial within sixty
days to avoid dismissal of the case. An Amended Case
Management Order was submitted by this deadline, and the parties
thereafter actively participated in discovery.
¶6 After the deadline had passed for disclosing expert
witnesses, Snowbird moved for summary judgment, arguing,
among other things, that Callister’s failure to designate an expert
liability witness was fatal to his claims for negligence. Callister
responded by arguing that because specialized knowledge was not
required to establish negligence in this case, expert testimony was
not necessary. He also requested, in the event the district court
determined that an expert was required, that the deadline for
expert witness designation be extended so that he could identify a
liability expert witness. Finally, at the hearing on Snowbird’s
motion he argued—for the first time, and only after the absence of
the doctrine’s invocation was noted by Snowbird’s counsel—that
the doctrine of res ipsa loquitur applied and urged the district court
to consider denying the motion on that ground as well.
¶7 The district court agreed with Snowbird that expert
testimony was necessary before Callister could proceed on his
negligence claims. It also denied Callister’s request for a deadline
extension, citing the “time lapse since the occurrence of the
accident, combined with the procedural history of this case (which
includes the Complaint being nearly dismissed on two prior
occasions after Orders to Show Cause)” as its reasons for doing so.
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Callister v. Snowbird Corp.
Accordingly, it granted summary judgment to Snowbird and
dismissed all of Callister’s claims with prejudice.3 The district
court’s ruling did not address Callister’s res ipsa loquitur
argument. Callister timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶8 Callister argues that summary judgment should not have
been granted in this case because expert testimony was not
required in order to prevail on his claims for negligence. He also
argues that the inference of negligence arising from the doctrine of
res ipsa loquitur should have been sufficient to withstand
Snowbird’s motion for summary judgment. “We ‘review[] a trial
court’s legal conclusions and ultimate grant or denial of summary
judgment for correctness, and view[] the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party.’” Posner v. Equity Title Ins. Agency, Inc., 2009 UT
App 347, ¶ 8, 222 P.3d 775 (alterations in original) (quoting Orvis
v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600).
¶9 Callister also argues that the district court abused its
discretion when it denied his request to extend the case
management order deadlines so that he could designate an expert
witness. “Trial courts have broad discretion in managing the cases
before them and we will not interfere with their decisions absent an
abuse of discretion. When reviewing a district court’s exercise of
3. The district court also ruled that section 52(1)(e) of the Inherent
Risks of Skiing Act did not preclude liability under the facts
alleged. See Utah Code Ann. § 78-27-52(1)(e) (LexisNexis Supp.
2006) (“‘Inherent risks of skiing’ means those dangers or conditions
which are an integral part of the sport of recreational, competitive,
or professional skiing, including . . . impact with lift towers and
other structures and their components such as signs, posts, fences
or enclosures, hydrants, or water pipes . . . .”); see also id. § 78-27-53
(2002) (“[N]o skier may make any claim against, or recover from,
any ski area operator for an injury resulting from any of the
inherent risks of skiing.”). That ruling is not at issue in this appeal.
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discretion, we will reverse only if there is no reasonable basis for
the district court’s decision.” Townhomes at Pointe Meadows Owners
Ass’n v. Pointe Meadows Townhomes, LLC, 2014 UT App 52, ¶ 9, 329
P.3d 815 (citations and internal quotation marks omitted).
ANALYSIS
I. Necessity of Expert Testimony
¶10 Callister first argues that expert testimony is not needed to
establish Snowbird’s negligence in this case. Specifically, he argues
that the jury could have relied on “[c]ommon sense” to determine
that in a situation where a tram is traveling low enough to strike a
skier, the ski resort has a duty to warn skiers about that danger by
way of “some combination of ropes, warning signs, or digging out
the snow.” Callister then argues that the jury could infer from the
fact that he was struck by the tram that “Snowbird did nothing” to
warn him, and that because it “did nothing,” there is no need for
expert testimony about what Snowbird should have done.
Therefore, Callister concludes that expert testimony was
unnecessary. We disagree.
¶11 “[S]ummary judgment is appropriate only when ‘there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.’” Penunuri v. Sundance
Partners, Ltd., 2013 UT 22, ¶ 8, 301 P.3d 984 (omission in original)
(quoting Utah R. Civ. P. 56(c)). In order to recover for negligence,
the plaintiff must affirmatively establish the following four
elements: “(1) that the defendant owed the plaintiff a duty, (2) that
the defendant breached that duty, (3) that the breach of duty was
the proximate cause of the plaintiff’s injury, and (4) that the
plaintiff in fact suffered injuries or damages.” Warenski v. Advanced
RV Supply, 2011 UT App 197, ¶ 6, 257 P.3d 1096 (citation and
internal quotation marks omitted).
¶12 With respect to the first element, under Utah law if the
applicable standard of care in an action for negligence is not “‘fixed
by law,’” then “the determination of the appropriate standard is a
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factual issue to be resolved by the finder of fact.” Berry v. Greater
Park City Co., 2007 UT 87, ¶ 30, 171 P.3d 442 (quoting Wycalis v.
Guardian Title of Utah, 780 P.2d 821, 825 (Utah Ct. App. 1989)). But
in cases where “the standard of care . . . [is] usually not within the
common knowledge of the lay juror, testimony from relevant
experts is generally required in order to ensure that factfinders
have adequate knowledge upon which to base their decisions.”
Bowman v. Kalm, 2008 UT 9, ¶ 7, 179 P.3d 754.
¶13 This principle is most clearly demonstrated in medical
malpractice cases, where plaintiffs are almost always required to
establish the applicable standard of care via expert testimony
because “the nature of the [medical] profession removes the
particularities of its practice from the knowledge and
understanding of the average citizen.” King v. Searle Pharms., Inc.,
832 P.2d 858, 862 (Utah 1992) (alteration in original) (citation and
internal quotation marks omitted); see also Dalley v. Utah Valley Reg’l
Med. Ctr., 791 P.2d 193, 195–96 (Utah 1990) (“To establish the
standard of care required of a physician in a particular field, breach
of that standard, and proximate cause, the plaintiff is generally
required to produce an expert witness who is acquainted with the
standards of care in the same or a similar field as the defendant
doctor.”); Hansen v. Harper Excavating, Inc., 2014 UT App 180,
¶¶ 10–15, 332 P.3d 969 (discussing the necessity of expert testimony
in medical malpractice cases). And in cases where the plaintiff has
failed to designate an expert in order to establish the applicable
standard of care, summary judgment may be granted to the
defendant. See, e.g., Dikeou v. Osborn, 881 P.2d 943, 948 (Utah Ct.
App. 1994) (affirming summary judgment where plaintiffs “failed
to establish a prima facie case of medical malpractice because they
presented no reliable testimony to establish the appropriate
standard of care”). But while this principle is most clearly
demonstrated in medical malpractice cases, it is not limited to that
context. Rather, its application depends upon the facts and
circumstances of the individual case and may properly be applied
in other, non-medical malpractice negligence cases.
¶14 For example, in Jenkins v. Jordan Valley Water Conservancy
District, 2013 UT 59, 321 P.3d 1049, the plaintiffs’ home was flooded
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Callister v. Snowbird Corp.
due to a crack in a nearby water pipe. Id. ¶ 4. The plaintiffs argued
that the Water District had been negligent in failing to replace the
pipe but failed to demonstrate the applicable standard of care via
expert testimony. Id. ¶¶ 2, 8. The Utah Supreme Court held that the
plaintiffs were required to establish the applicable standard of care
through expert testimony because “[l]ay persons are not well
equipped to decide whether a cast-iron pipe has gotten so old that
it requires replacement.” Id. ¶¶ 15–16. The court observed that
without expert testimony on this issue, “jurors would be forced to
speculate about how a reasonable water conservancy district would
act,” and “[s]uch speculation has no place in our courtrooms—on
matters of duty, breach, or otherwise.” Id. ¶ 21.
¶15 Following Jenkins, we conclude that expert testimony is
necessary in cases where the jury would be unable to determine the
applicable standard of care without resorting to speculation. Thus,
expert testimony is necessary in any negligence case where the
particularities of the alleged standard of care do not reside within
the common knowledge and experience of a lay juror. See Bowman,
2008 UT 9, ¶ 7.
¶16 We also note that this same principle applies in both simple
and gross negligence cases. “Gross negligence requires proof of
conduct substantially more distant from the appropriate standard
of care than does ordinary negligence.” Berry, 2007 UT 87, ¶ 26. In
other words, “most courts consider that ‘gross negligence’ . . .
differs from ordinary negligence only in degree, and not in kind.”
Black’s Law Dictionary 1134 (9th ed. 2009) (quoting Prosser and
Keeton on the Law of Torts § 34, at 212 (W. Page Keeton et al. eds., 5th
ed. 1984)). Consequently, gross negligence has the same elements
as does ordinary negligence, with an additional element of
egregiousness.
¶17 Two Utah cases have considered claims for gross negligence
involving winter recreational activities similar to the one in this
case and provide guidance regarding the need for expert
testimony. First, in Berry v. Greater Park City Co., 2007 UT 87, 171
P.3d 442, a skier who was injured in a ski race filed suit against the
ski resort and other parties involved in the event, alleging ordinary
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negligence, gross negligence, and common law strict liability.4 Id.
¶ 1. The Utah Supreme Court reversed the district court’s grant of
summary judgment to the defendants on the gross negligence
claim, observing that the standard of care applicable to a skiercross
race course for a gross negligence claim had not been established
by the evidence presented but that the expert testimony presented
would have been sufficient to withstand summary judgment for
ordinary negligence. Id. ¶¶ 28, 30.
¶18 In the second case, Pearce v. Utah Athletic Foundation, 2008
UT 13, 179 P.3d 760, the plaintiff was injured while riding a bobsled
at the Utah Winter Sports Park. Id. ¶ 6. The district court dismissed
the plaintiff’s action for gross negligence due to insufficient
evidence.5 Id. ¶ 9. The Utah Supreme Court reversed, explaining
that “[w]ithout an identified, applicable standard of care, it was
error for the district court to rule on summary judgment that, as a
matter of law, [plaintiff] could not show gross negligence.” Id. ¶ 26.
The court also opined in a footnote that “[i]n order to determine
what a reasonable bobsled ride operator would do, the finder of
fact would likely need to hear testimony from expert witnesses
before it could determine the operator’s deviation from the
standard,” presumably because “what a reasonable bobsled ride
operator would do” is not within the ordinary experience or
knowledge of a lay juror. Id. ¶ 26 n.2; cf. Kidd v. Taos Ski Valley, Inc.,
88 F.3d 848, 850, 852–53 (10th Cir. 1996) (holding that the plaintiff,
who was injured skiing into a single-strand diversionary rope,
could not avoid summary judgment by simply arguing that
multiple ropes should have been used, and stating, “[The plaintiff]
produced [o]nly speculation, not expert testimony . . . in attempting
to rebut Defendant’s submitted compliance with the [Ski Safety]
4. The plaintiff’s ordinary negligence claim was dismissed because
he had signed a valid Release of Liability and Indemnity
Agreement. Berry v. Greater Park City Co., 2007 UT 87, ¶¶ 3, 7, 171
P.3d 442.
5. As in Berry, the plaintiff’s ordinary negligence claim was rejected
because he had signed a liability release. Pearce v. Utah Athletic
Found., 2008 UT 13, ¶ 10, 179 P.3d 760.
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Act and . . . the record [is] absent of competent evidence that the
closure fell outside industry norms” (first omission and second and
fourth alterations in original) (internal quotation marks omitted)).
¶19 From these cases we deduce that, in both ordinary and gross
negligence cases, if the standard of care involves issues that do not
fall within the common knowledge and experience of lay jurors,
then expert testimony is required to establish the applicable
standard of care. We further deduce that in negligence cases
against ski resorts and related industries with specialized
equipment and operations, expert testimony is required because an
average person would not have knowledge of standards of care in
those industries and thus would be “forced to speculate about how
a reasonable [ski resort operator] would act.” See Jenkins v. Jordan
Valley Water Conservancy Dist., 2013 UT 59, ¶ 21, 321 P.3d 1049.
¶20 Applying the foregoing to this case, we agree with the
district court that without expert testimony, the jury would have
been forced to speculate about the applicable standard of care. This
is so because, in the district court’s words, “the issues involved in
this case such as standards regarding aerial trams, the type and size
of warning ropes, and the size, content and placement of warning
signs, just to name a few, are beyond the common experience of lay
people.” Accordingly, Callister bore the burden of establishing the
applicable standard of care via expert testimony. But because he
failed to do so, summary judgment in favor of Snowbird was
appropriate.
¶21 Furthermore, Callister cannot avoid this evidentiary burden
simply by pointing to Snowbird’s alleged failure to act, as he
attempted to do in his brief. In order to prevail on his negligence
claims, Callister is required to prove that Snowbird breached the
applicable standard of care and that its breach proximately caused
his injuries. See Warenski v. Advanced RV Supply, 2011 UT App 197,
¶ 6, 257 P.3d 1096. Thus, regardless of whether Snowbird acted or
failed to act, Callister must still establish the applicable standard of
care and show how the alleged action or inaction breached that
standard and caused his injuries. And because, as discussed above,
that standard involves concepts and procedures that do not lie
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Callister v. Snowbird Corp.
within the knowledge and experience of a lay juror, he was
required to establish the applicable standard via expert testimony.
The district court, therefore, did not err in requiring Callister to
provide expert testimony.
II. Res Ipsa Loquitur
¶22 Callister next argues that it was error for the district court to
grant summary judgment to Snowbird because his reliance on the
doctrine of res ipsa loquitur should have been sufficient to defeat
that motion. Snowbird argues that this issue has not been
preserved because Callister did not plead res ipsa loquitur in his
complaint or argue it in his opposition to Snowbird’s summary
judgment motion. Callister counters by arguing that his invocation
of the doctrine during the summary judgment hearing was
sufficient to preserve this issue for appeal. We agree with
Snowbird.
¶23 In order to properly preserve an issue for appeal, a party
must (1) raise the issue in a timely fashion, (2) raise the issue
specifically, and (3) introduce supporting evidence or relevant legal
authority. Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366. In other
words, “the issue must be presented to the trial court in such a way
that the trial court has an opportunity to rule on that issue.” 438
Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation
and internal quotation marks omitted).
¶24 Under Utah law, the doctrine of res ipsa loquitur is an
evidentiary rule that does not need to be separately pleaded in a
complaint. See Pete v. Youngblood, 2006 UT App 303, ¶ 28, 141 P.3d
629 (noting, adopting, and citing “the overwhelming weight of
authority from other jurisdictions that hold the doctrine of res ipsa
loquitur is a rule of evidence rather than a cause of action and need
not be pleaded in the complaint”). Nevertheless, our supreme court
has cautioned litigants that they must provide adequate notice of
an intent to invoke the doctrine:
To set out by way of inducement a situation which
itself may bespeak a prima facie case of negligence and
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then follow with allegations of specific negligence and
allege that by “reason of such negligent acts and
omissions on the part of the defendant [referring to
those specifically alleged] the plaintiff was injured”,
etc., does not sufficiently put the defendant on notice
that the plaintiff is going to rely on the situation itself
to furnish any inference of negligence.
Loos v. Mountain Fuel Supply Co., 108 P.2d 254, 259 (Utah 1940)
(alteration in original).
¶25 In Pete v. Youngblood, 2006 UT App 303, 141 P.3d 629, this
court reversed the district court’s grant of summary judgment
because the facts of that case supported an inference of negligence
under the doctrine of res ipsa loquitur. Id. ¶ 36. This court also
specifically noted that the concerns expressed in Loos were
inapplicable because only general allegations of negligence were
made in the complaint (as opposed to general and specific
allegations), and because the plaintiff raised the issue in a timely
manner (as opposed to after trial). Id. ¶ 27. The same cannot be said
here.
¶26 In its memorandum decision, the district court determined
that “it is agreed by the parties that the key issue [in this case] is
‘what [Snowbird] should have done.’” (Second alteration in
original.) And in both his complaint and in his brief, Callister made
specific allegations of Snowbird’s negligence: “[Snowbird]
negligently and carelessly breached [its] duty by failing to rope off
a larger area around tower #3, failing to put up signs warning that
the tram passes so low that it can hit skiers, and failing to
adequately dig out the snow where [Callister] got hit.”
Accordingly, under Loos, if Callister intended to rely on the
doctrine of res ipsa loquitur in addition to the specific allegations of
negligence contained in his complaint, he had the obligation to at
least argue that theory in his opposition to summary judgment.
Loos, 108 P.2d at 259. Otherwise, neither Snowbird nor the court
would know of Callister’s intention to invoke the doctrine and
would instead proceed on the theory that he was going to prove
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negligence by affirmative evidence, which is precisely what
happened here.
¶27 Furthermore, Callister failed to raise the issue of res ipsa
loquitur in a timely manner. Similar to Loos, where the plaintiff
waited until after trial to raise the issue, here Callister did not raise
the issue until the hearing on Snowbird’s summary judgment
motion, and even then it was only raised in response to Snowbird’s
oral observation of its absence and discussed without any analysis
of supporting authorities. Accordingly, we conclude that Callister
failed to meet the first and third requirements for preservation.
Further, given the impromptu way in which this issue was
presented to the district court, we cannot say that it had an
opportunity to rule on the issue or that Callister provided adequate
notice of his intention to rely on the doctrine to Snowbird. See id.
We therefore conclude that this issue was not adequately preserved
for appeal and do not address it further.
III. Request for Deadline Extension
¶28 Finally, Callister argues that the district court should have
granted his request for an extension of time to designate an expert
witness given the district court’s determination that expert
testimony was necessary to pursue his claim.6 If a party fails to
designate an expert witness as required by rule 26(a) of the Utah
Rules of Civil Procedure, see Utah R. Civ. P. 26(a)(3),7 rule 37(f)
6. The district court noted in its memorandum decision that
“although [Callister] appears to request that the deadlines in the
amended case management order be extended to permit his
obtaining a liability expert, no Rule 60 motion has been filed.” It
further stated that an extension was “not appropriate.”
7. The Utah Rules of Civil Procedure were amended in 2011, but
these amendments are applicable only to cases filed on or after
November 1, 2011. See Utah R. Civ. P. 1 advisory committee note
(“Due to the significant changes in the discovery rules, the
Supreme Court order adopting the 2011 amendments makes them
(continued...)
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provides that “that party shall not be permitted to use the witness
. . . 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).
Thus, “Utah law mandates that a trial court exclude an expert
witness . . . disclosed after expiration of the established deadline
unless the trial court otherwise chooses to exercise its equitable
discretion.” Posner v. Equity Title Ins. Agency, Inc., 2009 UT App 347,
¶ 8, 222 P.3d 775; see also Townhomes at Pointe Meadows Owners Ass’n
v. Pointe Meadows Townhomes, LLC, 2014 UT App 52, ¶ 13, 329 P.3d
815.
¶29 Rule 37(f) also allows for the entry of the more extreme
sanctions listed in rule 37(b)(2), including dismissal of a case. See
Utah R. Civ. P. 37(f) (“In addition to or in lieu of this sanction, the
court on motion may take any action authorized by Subdivision
(b)(2).”). Rule 37(b)(2) states, “[T]he court in which the action is
pending may take such action in regard to the failure as are just,
including . . . dismiss the action or proceeding or any part
thereof . . . .” The imposition of sanctions under rule 37(b)(2),
however, is more restrictive and requires a finding of “willfulness,
bad faith, . . . fault, or persistent dilatory tactics frustrating the
judicial process” on the part of the noncomplying party. See Welsh
v. Hospital Corp. of Utah, 2010 UT App 171, ¶ 9, 235 P.3d 791
(omission in original) (citation and internal quotation marks
omitted).8
¶30 Callister argues that dismissal was inappropriate because
“[t]here was no willfulness, bad faith, fault, or persistent dilatory
7. (...continued)
effective only as to cases filed on or after the effective date,
November 1, 2011, unless otherwise agreed to by the parties or
ordered by the court.”). Because this case was filed before that date,
we apply the prior version of the applicable rules.
8. We have disavowed any implication in our prior cases that the
willfulness requirement applies to all rule 37 sanctions and not just
those addressed by rule 37(b)(2). See R.O.A. Gen., Inc. v. Dai, 2014
UT App 124, ¶ 11 n.5, 327 P.3d 1233.
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tactics frustrating the judicial process.” Such discussion, however,
“confuses the requirements for an affirmative sanction by the
district court under rule 37(b)(2)” with the refusal to grant a motion
to extend the deadline for designating an expert witness. See
Townhomes, 2014 UT App 52, ¶ 14. Here, the district court refused
to grant Callister’s implicit motion to extend the scheduling order’s
deadline for designating an expert witness. This same scenario
existed in Townhomes, where a motion was made to amend the case
management order to extend the deadline for disclosing expert
witnesses. Id. ¶ 6. While that motion was pending, the plaintiff
provided an expert affidavit and an “‘amended preliminary
report.’” Id. ¶ 7. The district court denied the motion to extend the
expert report deadline, struck the expert report and accompanying
affidavit, and granted summary judgment against the plaintiff on
the basis that expert testimony was required in order for the
plaintiff to prove its case. Id. ¶ 8.
¶31 On appeal, this court first addressed the district court’s
denial of the motion to extend deadlines, applying an abuse of
discretion standard. Id. ¶ 9. We acknowledged the district court’s
conclusion that “the discovery period in this case has afforded the
parties a fair and reasonable opportunity to prepare for trial and
should therefore have an end,” concluding that “[g]iven the pattern
of delay identified by the district court,” there was no abuse of
discretion in denying the motion to extend the expert witness
designation deadline. Id. ¶ 12 (internal quotation marks omitted).
¶32 In accordance with Townhomes, we conclude that denial of
a motion to extend deadlines is not a sanction under rule 37
requiring “willfulness, bad faith, . . . fault, or persistent dilatory
tactics frustrating the judicial process.” Welsh, 2010 UT App 171, ¶ 9
(omission in original) (citation and internal quotation marks
omitted); see also Townhomes, 2014 UT App 52, ¶ 14. Ultimately
granting summary judgment because of a failure to provide a
required expert witness does not change the character of the
district court’s action in denying the motion.
¶33 In this case, the district court noted that “given the time
lapse . . . (which includes the Complaint being nearly dismissed on
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two prior occasions after Orders to Show Cause), amending the
case management order is not appropriate.” We see no abuse of
discretion in the district court’s action.
CONCLUSION
¶34 The district court was correct that expert testimony was
required in this case to establish a standard of care, and the district
court did not exceed its discretion in refusing to extend the
deadline for disclosure of expert testimony. In addition, the theory
of res ipsa loquitur was not properly preserved. Accordingly, the
district court’s grant of summary judgment in favor of Snowbird
was appropriate, and we affirm.
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