Brinkerhoff v. Fleming

               THE UTAH COURT OF APPEALS

                      KRISTA BRINKERHOFF,
                           Appellant,
                               v.
                     FLOYD EUGENE FLEMING,
                           Appellee.

                             Opinion
                        No. 20210894-CA
                      Filed August 24, 2023

         Second District Court, Farmington Department
               The Honorable David J. Williams
                         No. 180701260

              L. Miles Lebaron and Dallin G. Johnson,
                      Attorneys for Appellant
               Sadé A. Turner and S. Spencer Brown,
                      Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
  in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1      In November 2016, Krista Brinkerhoff was injured as a
passenger in a car accident. Brinkerhoff’s father had pulled the car
to a stop when Floyd Eugene Fleming rear-ended the Brinkerhoff
vehicle. Brinkerhoff suffered serious injuries as a result of the
accident and sued Fleming for negligently causing her injuries.
The district court granted summary judgment in favor of Fleming,
concluding that (1) Brinkerhoff violated rule 26 of the Utah Rules
of Civil Procedure when she failed to disclose the medical articles
and an intake sheet that her expert witness relied on to form his
opinions; (2) Brinkerhoff’s expert’s opinions were equivocal and
speculative and thus excludable under rule 702 of the Utah Rules
                      Brinkerhoff v. Fleming


of Evidence; (3) once Brinkerhoff’s expert witness was excluded,
she no longer had an expert to opine on causation, an essential
element of her claim; and (4) expert testimony was also necessary
to reduce her future medical expenses to present value.
Brinkerhoff appeals the court’s summary judgment order. We
affirm the district court’s rule 26 and causation determinations
and do not reach the remaining issues.


                        BACKGROUND

¶2     Brinkerhoff was involved in one car accident in 2014,
another in the summer of 2016, and then another in November
2016. In the most recent November 2016 accident, when the car
she was riding in was rear-ended, Brinkerhoff lurched forward
and immediately felt dizzy. That night and the next day,
Brinkerhoff’s symptoms worsened. She began experiencing
severe neck, back, and shoulder pain, as well as headaches.

¶3      Despite her symptoms, Brinkerhoff did not seek immediate
treatment for her injuries. Four months later, Brinkerhoff sought
treatment from Dr. Tyler Elmore, a chiropractor. After this first
visit, Brinkerhoff returned an additional thirty times to receive
treatment from Elmore between March 2017 and December 2018,
averaging 1.5 chiropractic visits per month.

¶4     In May 2018, Brinkerhoff sought evaluation from a
different chiropractor, Dr. Jeffrey Clayton. Based on the
information that Brinkerhoff provided in her intake form (in
which she omitted her prior symptoms and treatments she
received following the two car accidents that predated the
November 2016 accident) and the results of x-ray imaging and
several range of motion tests, Clayton determined that
Brinkerhoff’s injuries were permanent and the direct result of the
November 2016 accident with Fleming. Clayton recommended




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                       Brinkerhoff v. Fleming


that Brinkerhoff receive ongoing chiropractic treatment for her
injuries for the remainder of her life.

¶5     Brinkerhoff sued Fleming for negligently causing injury to
her. In addition to requesting compensation for past medical
expenses, based on Clayton’s medical opinion, Brinkerhoff
claimed as damages the cost of future medical care as well as pain
and suffering damages. The parties conducted discovery, and
Clayton prepared an expert report outlining Brinkerhoff’s injuries
and opining that the November 2016 accident with Fleming
caused these injuries, which would require lifelong chiropractic
treatment. In November 2020, Fleming deposed Clayton. At the
deposition, Clayton revealed that he had “looked at a lot of
research” to reach his conclusions, specifically, a number of
“Medical-Legal Flier Bi-Monthly” brochures that were not listed
in Brinkerhoff’s expert witness disclosures. 1 In addition to the
research materials, Clayton relied on an undisclosed handwritten
intake sheet from his initial consultation with Brinkerhoff. At the
deposition, Fleming’s attorney showed Clayton medical records
detailing Brinkerhoff’s chiropractic treatments that pre-dated the
November 2016 car accident and Brinkerhoff’s intake sheet from
Elmore, wherein Brinkerhoff described ongoing chronic pain in
her neck, back, hands, hips, and knees, as well as other symptoms
that she had not disclosed to Clayton, such as tingling in the hands
and feet. After Clayton reviewed the missing portions of
Brinkerhoff’s medical record, Fleming pressed Clayton to recant
his conclusions regarding the causal relationship between
Brinkerhoff’s injuries and the November 2016 accident. Clayton
revised his conclusions, determining that while Brinkerhoff’s



1. Though these materials were marked as exhibits, the deposition
was held over Zoom, and as such, Clayton claims he could not
give the documents to Fleming’s attorney during the deposition
to review or ask questions about how they informed Clayton’s
expert opinion.


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                       Brinkerhoff v. Fleming


neck injuries were likely caused by the November 2016 accident,
her back injury was no longer something he could attribute solely
to the most recent car accident.

¶6      In August 2021, Fleming moved for summary judgment,
arguing that the suit should be dismissed because
(1) Brinkerhoff’s expert did not properly disclose all the data and
other information he relied on in forming his opinion, and thus
his testimony should be excluded under rule 26(d)(4) of the Utah
Rules of Civil Procedure; (2) Clayton’s deposition testimony was
equivocal and speculative and thus should be excluded under
rule 702 of the Utah Rules of Evidence; (3) expert testimony was
necessary in this case, and without Clayton’s testimony,
Brinkerhoff could not adequately prove causation; and
(4) Brinkerhoff did not designate an expert to calculate future
medical expenses and damages.

¶7     In its ruling on the motion, the district court found in favor
of Fleming, striking Clayton as an expert witness on both rule 26
and rule 702 grounds. The court also determined that (1) without
Brinkerhoff’s expert witness, as a matter of law, Brinkerhoff could
not prove causation and (2) Brinkerhoff could not meet her
burden to prove medical damages as she had not designated an
expert to reduce future expenses to present value.


            ISSUES AND STANDARDS OF REVIEW

¶8     On appeal, Brinkerhoff contends that the district court
erred in granting summary judgment and dismissing her suit.
Specifically, she asserts the court erred by improperly weighing
the evidence to grant summary judgment in Fleming’s favor, in
excluding Clayton as an expert witness, in finding that
Brinkerhoff could not prove causation without expert testimony,
and in requiring that Brinkerhoff present the testimony of an
expert to reduce her future medical expenses to present value.



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                        Brinkerhoff v. Fleming


¶9     Because the district court has wide discretion in
determining the admissibility of expert testimony, this court
reviews a district court’s exclusion of such evidence for an abuse
of discretion. See Solis v. Burningham Enters. Inc., 

, 

. We review the district court’s interpretation of
the Utah Rules of Civil Procedure for correctness. See 

 And we
review the district court’s sanction decision under rule 26 for
abuse of discretion. See Keystone Ins. Agency, LLC v. Inside Ins., LLC,

, 

.

¶10 Moreover, we review summary judgment decisions for
correctness, “view[ing] the facts in a light most favorable to the
losing party below and giv[ing] no deference to the [district]
court’s conclusions of law.” See Zilleruelo v. Commodity
Transporters, Inc., 

, 

 (quotation
simplified).


                             ANALYSIS

¶11 Brinkerhoff alleges that the district court erred in excluding
her expert witness’s report and testimony and in subsequently
granting summary judgment in favor of Fleming on the ground
that she could not prove causation without an expert witness. We
examine these issues in turn.

                I. Rule 26 Disclosure Requirements

¶12 The district court excluded Clayton’s expert testimony
under rule 26(d)(4) of the Utah Rules of Civil Procedure because,
prior to his deposition, Brinkerhoff did not disclose the medical
articles and intake sheet that Clayton relied on in forming his
opinions on Brinkerhoff’s injuries. The court determined that the
failure to disclose these documents prejudiced Fleming’s
deposition strategy and that letting Fleming re-depose Clayton
would harm Fleming. We agree.



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                       Brinkerhoff v. Fleming


¶13 Brinkerhoff was required to disclose “all data and other
information that will be relied upon by the witness in forming
those opinions.” Utah R. Civ. P. 26(a)(4)(A)(iii) (2015). 2 Under rule
24(d)(4), “[i]f a party fails to disclose or to supplement timely a
disclosure or response to discovery, that 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.” 

 The district court was well within its discretion to
exclude Clayton’s testimony because in forming his opinions,
Clayton relied on materials that Brinkerhoff did not disclose in
her expert designations and about which Fleming could not
substantively question Clayton during his deposition. Several of
the medical articles appear to support Clayton’s opinion that the
November 2016 accident caused Brinkerhoff’s permanent neck
injuries—which opinion Clayton intended to provide at trial.
Thus, we see no abuse of discretion in the court’s assessment that
the “[u]ndisclosed materials were substantive in nature and
impacted [Fleming]’s strategic approach and deposition
preparation in prejudicial ways.”

¶14 Moreover, we also agree that, as the medical articles
informed Clayton’s causation opinion, to exclude the documents
but then allow Clayton to testify as an expert at trial when
Fleming was unable to question him about those undisclosed
documents would be harmful.




2. Brinkerhoff cites the 2022 version of this rule in her briefing on
appeal, which requires disclosure of “the facts, data, and other
information specific to the case that will be relied upon by the
witness in forming those opinions.” See Utah R. Civ. P.
26(a)(4)(A)(iii) (2022) (emphasis added). But Brinkerhoff made
disclosures in 2020. At that time, the rule required her to provide
“all data and other information that will be relied upon by the
witness in forming those opinions.” 

 R. 26(a)(4)(A)(iii) (2015).


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                       Brinkerhoff v. Fleming


¶15 Accordingly, we affirm the district court’s decision to
exclude Clayton’s testimony under rule 26. 3

                            II. Causation

¶16 Once the district court excluded Clayton, Brinkerhoff had
no other expert to testify about causation, an essential element of
her claim. The court determined that Brinkerhoff needed an
expert to testify about causation because her medical history
included preexisting injuries, inconsistent medical reporting, and
multiple accidents.

¶17 Brinkerhoff argues that the district court’s determination
was in error because she did not need an expert to prove causation
based on our supreme court’s recent decision in Sheppard v. Geneva
Rock, 

, 

. There, the court reaffirmed the
standard it had set forth in Bowman v. Kalm, 

, 

, namely that expert testimony is not necessarily required to
prove that a particular injury caused certain damages when the
link between injury and treatment “would be clear to a lay juror
who has no medical training—i.e., when the causal connection is
readily apparent using only common knowledge.” Sheppard, 

 (quotation simplified); see Bowman, 

.
Whether this “limited common knowledge exception . . . will
excuse a lack of expert testimony in some circumstances” is a factbased inquiry. Sheppard, 

 (quotation simplified).

¶18 Given the factual circumstances here, Brinkerhoff was still
required to present expert testimony to prove causation, as her
injuries were not such that they would fall under that limited
common knowledge exception. Unlike the plaintiff in Sheppard,


3. As we find the district court’s rule 26 ruling determinative, it is
unnecessary for us to analyze the court’s decision to exclude
Clayton’s testimony on the cause and seriousness of Brinkerhoff’s
neck injuries under rule 702 of the Utah Rules of Evidence.


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                       Brinkerhoff v. Fleming


who had no pre-existing injuries, suffered injuries in a violent car
accident, was transported by ambulance to a hospital for
immediate treatment, and experienced back pain that lasted more
than three years despite ongoing treatment, see 

 ¶¶ 4–7,
Brinkerhoff did not immediately seek medical treatment for her
injuries and had a history of prior accidents and treatment relating
to those injuries. Accordingly, Brinkerhoff is mistaken when she
asserts that a jury could on its own, without the aid of expert
testimony, determine that her persistent pain requiring future
chiropractic treatment was due to the November 2016 accident.
And, without expert testimony to support this theory of
causation, the district court was correct to grant summary
judgment in favor of Fleming. See Zendler v. University of Utah
Health Care, 

, 

 (holding that
when a party that does not carry the burden of proof at trial moves
for summary judgment, that party “may carry its burden of
persuasion without putting on any evidence of its own—by
showing that the nonmoving party has no evidence to support an
essential element of a claim” (quotation simplified)), cert. denied,

 (Utah 2021).

¶19 Because Brinkerhoff could not prove causation without an
expert, we affirm the district court’s grant of summary judgment
to Fleming. 4



4. Brinkerhoff also challenges the district court’s ruling that she
needed to submit expert testimony to reduce her future medical
expenses to present value. As we affirm on causation, we do not
need to reach the medical expenses issue. But we do note our
disagreement with the court’s determination that Brinkerhoff
needed an expert to reduce her future medical damages to present
value. Model Utah Jury Instruction CV2021 provides direction on
how to calculate future damages, and while having an expert
testify about that calculation is usually preferred, such expert
                                                     (continued…)


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                      Brinkerhoff v. Fleming


                        CONCLUSION

¶20 The district court did not err in concluding that, under rule
26 of the Utah Rules of Civil Procedure, the report and testimony
of Brinkerhoff’s expert witness should be excluded. And given the
factual circumstances here, the lack of expert medical testimony
was fatal to Brinkerhoff’s case. We therefore affirm the court’s
grant of summary judgment and dismissal of Brinkerhoff’s
claims.




testimony is not required when a party like Brinkerhoff claims
future damages. See Model Utah Jury Instructions 2d CV2021
(2023), https://legacy.utcourts.gov/muji/inc_list.asp?action=show
Rule&id=20#2021 [https://perma.cc/C2UA-63AZ].


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