Baumann v. The Kroger Company

2016 UT App 165

THE UTAH COURT OF APPEALS

KARI L. BAUMANN,
Appellant,
v.
THE KROGER COMPANY AND GREGORY P. TAYLER,
Appellees.

Opinion
No. 20150078-CA
Filed July 29, 2016

Fourth District Court, Heber Department
The Honorable Fred D. Howard
No. 130500017

Gregory W. Stevens, Attorney for Appellant
Todd C. Hilbig and Andrea M. Keysar, Attorneys for
Appellee The Kroger Company
Elliott J. Williams and John M. Zidow, Attorneys for
Appellee Gregory P. Tayler

SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY
concurred.1

GREENWOOD, Senior Judge:

¶1 Kari L. Baumann appeals the district court’s grant of
summary judgment against her. Baumann failed to designate
any expert witnesses under rule 26 of the Utah Rules of Civil
Procedure, and the district court consequently precluded her

1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
 Baumann v. The Kroger Company

from using undesignated experts to contest summary judgment
under the same rule. We affirm.

BACKGROUND

¶2 Baumann first filed suit against The Kroger Company
(Kroger) and Dr. Gregory P. Tayler (collectively, Defendants) in
2007 after she allegedly suffered ‚hypotension due to
overmedication.‛ That complaint was dismissed upon
stipulation of the parties. In February 2013, Baumann filed the
instant action pursuant to Utah’s one-year savings statute.2 In
her new complaint, Baumann alleged that Dr. Tayler had
breached the applicable standard of care in prescribing her
medications. She also alleged that Kroger had breached its
standard of care, violated Utah’s Pharmacy Practice Act, and
failed to comply with its assumed duties and written assurances
to her. After her attorney withdrew as counsel, Baumann
represented herself pro se.

¶3 A year later, in February 2014, as part of pretrial
discovery, Baumann replied to Defendants’ interrogatories
requesting that she ‚[i]dentify each person [she] intend[ed] to
call as a witness . . . including expert witnesses‛ and their
anticipated testimonies. In reply, Baumann wrote that she would
identify such ‚witnesses and their anticipated testimony . . .
when scheduled to do so by case management order.‛ Two
weeks later, Baumann and Defendants stipulated to a new
schedule for additional time to conduct standard discovery.

2. Utah’s savings statute provides that if ‚any action is timely
filed and . . . the plaintiff fails . . . upon a cause of action
otherwise than upon the merits, and the time limited either by
law or contract for commencing the action has expired, the
plaintiff . . . may commence a new action within one year after
the . . . failure.‛ Utah Code Ann. § 78B-2-111 (LexisNexis 2012).

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 Baumann v. The Kroger Company

Baumann was to provide Defendants with expert disclosures by
June 6, 2014, and expert discovery was to be completed by
September 5, 2014.

¶4 Both June 6 and September 5 passed, and Baumann failed
to disclose expert witnesses and their corresponding reports.
Then, on September 11, 2014, Defendants jointly moved for
summary judgment, arguing that without designated expert
witnesses Baumann could not establish the applicable standards
of care, breach of those standards, or that the breach was the
proximate cause of Baumann’s injuries. Baumann filed an
opposition to the motion for summary judgment. Defendants
responded on October 8, requesting that their motion be
submitted for decision. Two days later, on October 10, Baumann
filed approximately 150 pages of various documents with the
court. The court scheduled a hearing on Defendants’ motion for
summary judgment on November 17, 2014. The day of the
hearing, Baumann submitted an expert report applicable only to
Kroger. No expert report applicable to Dr. Tayler was filed.

¶5 At the November 17, 2014 hearing on Defendants’ joint
motion for summary judgment, Baumann’s husband sought
permission to speak for her in court. The district court denied his
request and granted a continuance for Baumann to find
counsel—pro bono or otherwise.3 The court also told the parties
that it would not consider any materials filed after October 8,
2014, the date Defendants had filed their motion to submit for
decision; that ‚the pleadings have closed on the motion‛; and

3. Baumann’s husband asked to speak for Baumann ‚if there is
no objection.‛ Defendants objected to ‚a nonlawyer representing
a pro se plaintiff.‛ The court sustained the objection, explaining
that while it was true that Baumann was ‚entitled to *speak for
herself] under constitutional protection[,] if you have the
assistance of an individual, [it] ought to be somebody that’s
licensed in the law.‛

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 Baumann v. The Kroger Company

that any new counsel would not ‚be at liberty to supplement this
record‛ but would be there only ‚to speak on the question *that+
has been filed.‛ The court also permitted Baumann to file a
written statement detailing her arguments before the court if she
had not found counsel to speak for her.

¶6 At the rescheduled hearing on January 5, 2015,
Baumann—still unrepresented by counsel—read a written
statement to the court. She contended that summary judgment
was not proper because she had provided documents reflecting
a Social Security Administration decision granting her disability
benefits. She also told the court that she did not designate expert
witnesses or their reports timely because she ‚was just [trying]
to save quite a few thousand dollars,‛ ‚the facts would speak for
themselves,‛ and she thought ‚the Defense would want to move
forward with also a less expensive and more timely speedier
way of getting resolution to this case that’s been personally hard
on [her] also for eight years.‛ Baumann asserted that in any
event ‚[p]rocedural formalities are not the law.‛ ‚In conclusion,‛
she stated, ‚I believe that summary judgment is improper due to
the fact that the defendants’ basis is procedural not evidentiary.‛

¶7 The district court granted Defendants’ motion for
summary judgment, finding that Baumann had ‚failed to make
expert disclosures‛ in accordance with the stipulation and rule
26 and that there was ‚no good cause for *Baumann’s+ failure to
make expert disclosures.‛ ‚Therefore,‛ the court ruled, Baumann
‚was precluded by Rule 26(d)(4) from using any undisclosed
witness, document, or material in opposition to the Motion for
Summary Judgment filed by the Defendants.‛ Because the
‚standards of care related to prescribing and dispensing blood
pressure medication, and what neurological or other biological
effects that blood pressure medications may have, are not within
the common knowledge of laypersons,‛ the district court found
that ‚expert testimony is required in this case.‛ Baumann,
‚having failed to make expert disclosures . . . *thus+ cannot make

20150078-CA 4 2016 UT App 165
 Baumann v. The Kroger Company

a prima facie case for her healthcare malpractice claims.‛
Baumann appeals the district court’s order.4

ISSUES AND STANDARDS OF REVIEW

¶8 Baumann—represented by counsel on appeal—contends
that the district court abused its discretion when it ‚declined to
permit‛ her to disclose and utilize an expert report applicable to
Dr. Tayler and that it erred in its application of law when it
refused to consider or admit her expert report applicable to
Kroger. We review a district court’s decision to impose sanctions
under rule 26(d)(4) for abuse of discretion. Townhomes at Pointe
Meadows Owners Ass’n v. Pointe Meadows Townhomes, LLC, 2014
UT App 52, ¶ 13, 329 P.3d 815.5

4. Baumann does not contest the district court’s determination
that expert witness testimony was necessary to prove her claims
and, thus, that summary judgment was appropriate in the
absence of such testimony, nor does Baumann contest the court’s
ruling that there was no good cause for her failure to disclose her
expert witnesses. We, therefore, do not address those issues here.

5. Townhomes at Pointe Meadows Owners Association v. Pointe
Meadows Townhomes, LLC, 2014 UT App 52, 329 P.3d 815, was
decided under the pre-2011 versions of rules 26 and 37. See id.
¶ 13 n.2. Prior to 2011, rule 26 did not include a ‚failure to
disclose‛ provision, as it does today. Thus, a party’s failure to
disclose an expert witness under rule 26(a) was then governed
by rule 37(f):
If a party fails to disclose a witness . . . as required
by Rule 26(a) . . . 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.
(continued…)

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 Baumann v. The Kroger Company

ANALYSIS

I. Dr. Tayler Expert Report

¶9 Baumann argues that the district court abused its
discretion by not allowing her to designate an additional expert

(…continued)
Utah R. Civ. P. 37(f) (2010). In 2011, however, amendments to the
Utah Rules of Civil Procedure included a provision similar to
rule 37(f) in rule 26(d)(4), which governs this case:
If a party fails to disclose . . . a [witness], that party
may not use the undisclosed witness . . . at any
hearing or trial unless the failure is harmless or the
party shows good cause for the failure.
Id. R. 26(d)(4) (2012). Furthermore, as part of the 2015
amendments, the former rule 37(f) was deleted, because ‚the
effect of non-disclosure is adequately governed by Rule 26(d).‛
Id. R. 37 (2016) advisory committee’s note to 2015 amendments.
Utah appellate decisions have referred to both rules 26 and 37
when discussing the ramifications of a failure to disclose
witnesses. The district court in this case referred to rule 26(d)(4),
as do we. However, we also utilize rule 37(f) cases in our
analysis because of their similar applicability. Because the
substance of rule 26(d)(4) has remained unaltered since its
inception, unless otherwise noted, we cite the 2016 version of the
rule.
Additionally, the accompanying note to the 2011
amendments explains that the ‚may not use‛ language of rule
26—like the ‚shall not be permitted to use‛ language of rule
37—provides for a mandatory preclusion of materials, not a
permissive sanction. See id. R. 26 (2012) advisory committee’s
note to 2011 amendments (stating that the noncompliant ‚party
cannot use the undisclosed witness . . . absent proof that‛ the
failure was either harmless or for good cause (emphases added)).

20150078-CA 6 2016 UT App 165
 Baumann v. The Kroger Company

report applicable to Dr. Tayler. This argument is unpreserved,
however, as Baumann concedes in her reply brief.6

¶10 Generally, we will not consider an issue on appeal unless
it has been preserved. Patterson v. Patterson, 2011 UT 68, ¶ 12, 266
P.3d 828. ‚Our preservation rule promotes both judicial
economy and fairness. The rule furthers judicial economy by
giv[ing] the [district] court an opportunity to address the
claimed error, and if appropriate, correct it prior to an appeal.‛
Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT
84, ¶ 28, 299 P.3d 990 (alterations in original) (citations and
internal quotation marks omitted). ‚The only exceptions to this
general rule are instances involving exceptional circumstances or
plain error.‛ Id. ¶ 27. The Utah Rules of Appellate Procedure
provide that ‚[t]he brief of the appellant shall contain . . . a
statement of grounds for seeking review of an issue not
preserved in the trial court.‛ Utah R. App. P. 24(a), (a)(5)(B).
Baumann’s opening brief provides us no such statement.7

6. Baumann did not file a motion or otherwise request
permission to designate an expert as to Dr. Tayler during the
proceedings before the district court.

7. In her reply brief, Baumann does argue that exceptional
circumstances—her demonstrated ‚lack of understanding of the
process and the significance of the schedule‛ and her ability as a
disabled pro se plaintiff—justify departure from the preservation
rule. ‚It is well settled that issues raised by an appellant in the
reply brief that were not presented in the opening brief are
considered waived and will not be considered by the appellate
court.‛ Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (citation and
internal quotation marks omitted).
Even so, while pro se appellants are entitled to ‚every
consideration that may reasonably be indulged . . . , [a]s a
general rule, a party who represents [herself] will be held to the
same standard of knowledge and practice as any qualified
(continued…)

20150078-CA 7 2016 UT App 165
 Baumann v. The Kroger Company

¶11 Furthermore, Baumann’s specific argument—that the
district court abused its discretion by refusing to allow her to
submit an expert report applicable to Dr. Tayler—cannot prevail;
the district court could not have abused its discretion in not
making a ruling it was never asked to make. We thus decline to
review Baumann’s contentions as to an expert witness report
applicable to Dr. Tayler.

II. Kroger Expert Report

¶12 The district court found that Baumann ‚failed to make
expert disclosures‛ in accordance with the stipulation and rule
26 and that there was ‚no good cause for *Baumann’s+ failure to
make expert disclosures.‛ Accordingly, it precluded Baumann

(…continued)
member of the bar.‛ Jacob v. Cross, 2012 UT App 190, ¶ 4, 283
P.3d 539 (per curiam) (first alteration in original) (citations and
internal quotation marks omitted). ‚Consequently, [r]easonable
considerations do not include . . . attempt[ing] to redress the
ongoing consequences of the party’s decision to function in a
capacity for which [she] is not trained.‛ Id. (first and second
alterations in original) (citation and internal quotation marks
omitted). Our supreme court has explained that
a lay[person] acting as [her] own attorney does not
require the court to interrupt the course of
proceedings to translate legal terms, explain legal
rules, or otherwise attempt to redress the ongoing
consequences of the party’s decision to function in
a capacity for which [she] is not trained. Judges
cannot be expected to perform that function.
Nelson v. Jacobsen, 669 P.2d 1207, 1213–14 (Utah 1983). Thus,
while a pro se plaintiff ‚has the right to appear pro se . . . when a
person chooses to do so, [she] must be held to the same standard
as if [she] were represented by counsel.‛ Johnson v. Aetna Cas.
& Surety Co. of Hartford, 630 P.2d 514, 517 (Wyo. 1981).

20150078-CA 8 2016 UT App 165
 Baumann v. The Kroger Company

‚from using any undisclosed witness, document, or material in
opposition to the Motion for Summary Judgment filed by the
Defendants‛ under rule 26(d)(4). Baumann argues that this was
an abuse of discretion. She argues specifically that the district
court should have applied rule 16(d) instead of rule 26(d) of the
Utah Rules of Civil Procedure in accordance with the Utah
Supreme Court’s decision in Coroles v. State, 2015 UT 48, 349 P.3d
739. As the Coroles court stated, under rule 16(d), ‚a court ‘may’
impose a sanction described in rule 37(e) for a failure to abide by
the scheduling order.‛ Id. ¶ 22. Under rule 26(d), however, a
party who has failed to disclose a witness ‚may not use the
undisclosed witness . . . at any hearing or trial unless the failure
is harmless or the party shows good cause for the failure.‛ Utah
R. Civ. P. 26(d)(4) (emphasis added). Baumann argues that
applying rule 16’s permissive standard rather than rule 26’s
mandatory standard would have led to a more favorable result
for her.

¶13 Rule 26 of the Utah Rules of Civil Procedure requires a
party disclosing an expert witness ‚to submit a written report
that contains specific information, such as the expert’s
qualifications and the basis for and substance of the expert’s
opinion.‛ Townhomes at Pointe Meadows Owners Ass’n v. Pointe
Meadows Townhomes, LLC, 2014 UT App 52, ¶ 13, 329 P.3d 815
(citing Utah R. Civ. P. 26(a)(3)(B)). And importantly, as we stated
above, ‚‘Utah law mandates that a trial court exclude an expert
witness report disclosed after expiration of the established
deadline’ unless the district court, in its discretion, determines
that ‘good cause excuses tardiness’ or that the failure to disclose
was harmless.‛ Id. (quoting Posner v. Equity Title Ins. Agency, Inc.,
2009 UT App 347, ¶¶ 8, 23, 222 P.3d 775).

¶14 Critically, a district court has ‚broad discretion in
selecting and imposing sanctions for discovery violations‛ under
rule 26. Tuck v. Godfrey, 1999 UT App 127, ¶ 15, 981 P.2d 407
(citation and internal quotation marks omitted). ‚Appellate
courts may not interfere with such discretion unless . . . there is

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 Baumann v. The Kroger Company

either an erroneous conclusion of law or no evidentiary basis for
the trial court’s ruling.‛ Id. (internal quotation marks omitted).

¶15 Moreover, contrary to Baumann’s argument to the district
court that bypassing her obligation to disclose her expert witness
would have led to a speedier resolution in this case, Utah’s
supreme court-appointed advisory committee on the Utah Rules
of Civil Procedure has stated that

[m]ore complete disclosures increase the likelihood
that the case will be resolved justly, speedily, and
inexpensively. Not being able to use evidence that
a party fails properly to disclose provides a
powerful incentive to make complete disclosures.
This is true only if trial courts hold parties to this
standard. Accordingly, although a trial court
retains discretion to determine how properly to
address this issue in a given case, the usual and
expected result should be exclusion of the
evidence.

Utah R. Civ. P. 26 (2012) advisory committee’s notes to 2011
amendments. Thus, sound policy supports strict enforcement of
this rule.

¶16 So, too, do the facts of this case. This is an old case.
Baumann’s original claim arose in 2007. She filed a second suit
under Utah’s savings statute. Baumann also stipulated to a
discovery schedule requiring her to disclose expert witnesses to
Defendants by June 6, 2014, and providing that expert
discovery—including expert witness depositions—would close
on September 5, 2014. Baumann then failed to provide an expert
witness or report as to either Kroger or Dr. Tayler. Defendants
thus filed for summary judgment on September 11. After
Baumann opposed Defendants’ motion for summary judgment,
Defendants submitted the motion for decision on October 8, and
the court scheduled a hearing on the motion for November 17.

20150078-CA 10 2016 UT App 165
 Baumann v. The Kroger Company

The day of the hearing, Baumann filed an expert report as to
Kroger without seeking leave of court to do so—and contrary to
the district court’s order that it would not consider filings
submitted after October 8. At the rescheduled January 5, 2015
hearing, Baumann’s arguments to the district court—that she
was trying to dispose of the case economically and that
‚[p]rocedural formalities are not the law‛—were unpersuasive
and ultimately, the district court precluded Baumann ‚from
using any undisclosed witness, document, or material in
opposition to the Motion for Summary Judgment filed by the
Defendants.‛

¶17 Nevertheless, Baumann argues that under Coroles v. State,
2015 UT 48, 349 P.3d 739, the district court should have applied
rule 16(d), not rule 26(d)(4), of the Utah Rules of Civil Procedure
and that it abused its discretion in failing to do so. Baumann
specifically argues that, according to Coroles, the source of the
district court’s authority to sanction her ‚for producing untimely
discovery under a scheduling order‛ is rule 16(d), not rule 26(d).
Baumann’s argument is similar to the appellant’s argument in
Sleepy Holdings LLC v. Mountain West Title, 2016 UT App 62, 370
P.3d 963. While Sleepy Holdings dealt with initial disclosures and
not an expert witness report, its analysis is apt and informs our
decision here.

¶18 In Sleepy Holdings, the appellant argued that the district
court abused its discretion when it excluded evidence under rule
26 of the Utah Rules of Civil Procedure and that it ‚should
instead have applied the discretionary sanctions found in rule
16(d).‛ Id. ¶ 19. This court explained that rule 16 ‚governs
pretrial conferences, scheduling, and management conferences,‛
id. ¶ 20, whereas rule 26 ‚governs initial disclosures and
discovery,‛ id. ¶ 21. We indicated that the ‚‘sanction of exclusion
is automatic and mandatory unless the sanctioned party can show
that the violation . . . was either justified or harmless.’‛ Id.

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 Baumann v. The Kroger Company

(emphasis added) (quoting Dahl v. Harrison, 2011 UT App 389,
¶ 22, 265 P.3d 139).8 We further noted that the district court
sanctioned the appellant, Sleepy Holdings, for failure to disclose
and stated that ‚[t]he district court’s ruling repeatedly cites rule
26; it never mentions rule 16.‛ Id. ¶ 22. Thus, this court declined
to apply Coroles, as Sleepy Holdings urged, because ‚Coroles did
not interpret—or even mention—rule 26‛ and because rule 26
appropriately authorized sanctions for failure to disclose. Id.
¶ 23.

¶19 So too here, where the district court refused to allow
Baumann to disclose or utilize any expert witnesses. The court’s
order references only rule 26, not rule 16. Thus, rule 26 is
controlling here because Baumann failed to disclose her expert
witness until the day of the hearing on Defendants’ joint motion
for summary judgment on November 17, without seeking the
court’s permission to do so. Consequently, the district court did
not err in applying rule 26 when it found that Baumann was
‚precluded by Rule 26(d)(4) from using any undisclosed witness,
document, or material‛ to contest summary judgment at that
hearing.

8. Baumann also argues that in addition to making a finding of
no good cause, the district court was also required to make a
finding of harmfulness. This, however, is not the case. See Sleepy
Holdings LLC v. Mountain West Title, 2016 UT App 62, ¶ 21, 370
P.3d 963. It is well settled that a district court’s exclusion of
materials may be supported if the court makes a finding that
there is either no good cause for the failure or that the failure is
harmful. See Utah R. Civ. P. 26(d)(4) (explaining that a ‚party
may not use the undisclosed witness, document or material at
any hearing or trial unless the failure is harmless or the party
shows good cause for the failure.‛ (emphasis added)); Bodell
Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933. Thus, it is
unnecessary for us to examine whether there was harm. This is
not to suggest that the failure was harmless.

20150078-CA 12 2016 UT App 165
 Baumann v. The Kroger Company

¶20 Furthermore, Bodell Construction Co. v. Robbins, 2009 UT
52, 215 P.3d 933, supports the district court’s characterization of
Baumann’s action as a ‚failure to make expert report‛
disclosures rather than a failure to produce discovery timely
under a scheduling order. In Bodell, the court affirmed the
district court’s exclusion of plaintiff’s expert report in accordance
with rule 37(f)—now subsumed in rule 26(d)(4)9—characterizing
an expert report submitted only three weeks after close of fact
discovery as a ‚failure to disclose.‛ Id. ¶¶ 13, 34–37, 40. Using
the same metric, Baumann’s report was filed twenty-five weeks
after the close of fact discovery.

¶21 In this case, the district court’s order did not address
Baumann’s violation of the scheduling order, but instead relied
upon rule 26(d)(4), stating that Baumann could not now use
‚any undisclosed witness, document, or material‛ to contest
summary judgment. Thus, we believe Sleepy Holdings’
framework provides us with an alternate, more precise way to
approach the question of which rule applied in this case, i.e., not
whether the district court made its ruling because Baumann
violated a scheduling order or because she violated the rules of
discovery, but because she did not disclose expert witnesses
within the time confines of both the stipulated discovery
schedule and the district court’s order cutting off filings after
October 8. See supra ¶¶ 17–19.

¶22 Because the district court correctly precluded Baumann
from using her undisclosed expert witness report to contest
summary judgment under rule 26(d)(4) of the Utah Rules of
Civil Procedure, we affirm.

9. See supra note 5 for our analysis of the applicability to this
discussion of pre-2011 amendment cases affirming under rules
26 and 37.

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 Baumann v. The Kroger Company

CONCLUSION

¶23 Baumann’s argument as to any expert report applicable to
Dr. Tayler was not preserved in the district court, and we
therefore do not consider it. As to the expert report applicable to
Kroger, under the order of the district court, rule 26(d)(4)—not
rule 16(d)—of the Utah Rules of Civil Procedure applied when
Baumann failed to disclose the details of her proposed expert.
The district court did not abuse its discretion in precluding her
from using expert witness testimony to contest summary
judgment under rule 26. For the foregoing reasons, we affirm.

20150078-CA 14 2016 UT App 165