District Court, Provo Department The Honorable Derek P.
Pullan No. 120400620
Leonard E. McGee and Peter R. Mifflin, Attorneys for
J. Porter, Attorney for Appellee.
Stephen L. Roth authored this Opinion, in which Judges J.
Frederic Voros Jr. and Michele M. Christiansen concurred.
Stephen L. Roth, Judge.
Garth Gines appeals from the jury's verdict in a case
involving an automobile accident and a claim of negligence
against Sean Edwards, the driver of the vehicle that collided
with the vehicle in which Gines was a passenger. Gines also
appeals certain of the trial court's decisions related to
Edwards' expert witness. We affirm.
In early December 2009, Gines was a passenger in a vehicle
that was rear-ended by a vehicle driven by Edwards. At trial,
Edwards testified that his vehicle had been moving at
approximately five to ten miles per hour when the accident
Gines had a preexisting spinal condition. Before the
accident, Gines had undergone spinal surgery twice-once in
2005 and once in 2007-to relieve headaches and pain in his
neck. Although the surgeries had temporarily relieved the
pain, his symptoms returned. About six weeks before the
accident, one of Gines' treating physicians recommended
further surgery, opining that Gines' spinal
"condition [was] not static" and was expected to
"get worse." The doctor stated that, although the
effect of surgery was "unpredictable, " it was
"[the] best chance of improvement at this time." He
noted that "all conservative measures and surgery
twice" had failed, and that Gines was "truly
disabled from any regular work."
After the accident, Gines' treating physician described
him as having "neck and upper back pains, some acute and
some chronic, " and an MRI showed "a slight
progression of the central canal narrowing" at the two
spinal levels below the level that had previously been
surgically fused. When Gines' pain did not abate, he had
a third surgery in June 2011 to fuse the two lower levels of
his spine where his treating physician had noted
"degenerative progression." Gines' pain
persisted, however, and five months after the surgery, Gines
was still experiencing significant pain and taking narcotic
In April 2012, Gines filed a complaint alleging that,
"[a]s a direct and proximate result of [Edwards']
negligent actions, " he had "sustained serious
injuries" in the automobile accident. He requested
"past, present, and future" general and special
Before trial, Gines filed two motions relevant to this
appeal. The first was a February 2014 motion in limine
requesting, among other things, that the trial court exclude
one of Edwards' designated expert witnesses, Dr. Goldman,
from testifying at trial. Gines asserted that Edwards had
failed to provide Dr. Goldman's expert report by the
deadline then in effect. In response, Edwards provided an
expert report from Dr. Goldman and argued that the court
should not exclude him as a witness. At an April 2014
hearing, before the October 2014 trial had been scheduled,
the trial court found that the "failure to provide . . .
[Dr. Goldman's] report was harmless" and ruled that
Dr. Goldman would not be "excluded from providing
testimony at trial."
Second, after receiving Dr. Goldman's report, Gines filed
a motion for partial summary judgment. He contended that,
based on the "[a]reas where Dr. Goldman['s] opinion
[is] favorable to [Gines], " he was entitled to judgment
as a matter of law regarding fault, causation of his
injuries, the reasonable necessity of his postaccident
medical treatment, and his need for future medical care. The
trial court agreed that there was no question of material
fact "on the issue of the negligence of [Edwards]"
and "the amount of [Gines'] past medical bills,
" which the court determined were $61, 296.60 (the past
medical expenses). However, the court concluded that there
was a dispute of material fact regarding the reasonableness
and necessity of Gines' medical expenses-that is, whether
the past medical expenses and any future medical expenses
that Gines claimed were in whole or in part caused by the
accident rather than by his preexisting spinal condition. The
court explained that, while "it is undisputed that
[Gines] suffered at least a musculoskeletal injury to the
cervical spine, of the sprain/strain variety with a temporary
aggravation and superimposition upon a previously injured and
altered symptomatic cervical spine anatomy" as a result
of the accident, there was a factual dispute regarding
"[w]hether [Gines] suffered more serious injury."
Thus, the case proceeded to trial to resolve the question of
causation and the amount of damages, including past and
future medical expenses and noneconomic damages.
At trial, Gines argued that all of the past medical expenses
were caused by the accident and that future medical expenses
stemming from the accident would be incurred as well. Edwards
countered that "entirely 100 percent [of Gines'
condition is] due to his previous injuries and ongoing
degenerative condition, " and that the accident only
caused "a temporary aggravation of a preexisting
degenerative condition." He agreed that Gines had needed
the surgery and other treatment for which he incurred the
medical bills, but argued that the accident "could not
have injured" Gines, based on the extent of Gines'
preexisting spinal condition. Accordingly, he asked the jury
to award "much, much less" than the $61, 296.60
Gines claimed for past medical expenses and nothing for
future medical costs.
Dr. Goldman was the defense's sole medical expert
witness. Prior to Dr. Goldman's taking the stand, Gines
raised a question about the permissible scope of his
testimony. The trial court conducted a hearing outside the
presence of the jury to consider the objection. Gines argued
that Dr. Goldman's expert report did not fairly disclose
three issues related to apportionment of damages. First, he
asserted that Dr. Goldman's report did not disclose
"apportionment between what injuries were caused by the
accident and what injuries were attributable to [his]
preexisting pathology." Second, he claimed that the
permanent impairment rating in Dr. Goldman's report did
not provide a nonarbitrary basis for apportioning which
injuries were caused by the accident and which were
preexisting-i.e., a percentage rating both of his "whole
person impairment" due to his entire "cervical
spine dysfunction" and the percentage of that
"whole person impairment" attributable to the
accident. Gines argued that the impairment percentages
included in Dr. Goldman's report were arbitrary because
they were stated "as a hypothetical" and without
"fully commit[ting] to it, " and that even if those
percentages were disclosed, they did not provide a reasonable
basis for apportioning the damages under the apportionment
standard set forth in Harris v. ShopKo Stores, Inc.,
2013 UT 34, 308 P.3d 449. Third, Gines asserted that Dr.
Goldman's report did not disclose "what medical
expenses were incurred as a result of the accident and what
medical expenses were due to [Gines'] preexisting
condition." Of the three, Gines indicated that he had
"the greatest objection" to the issue of medical
expenses, because he did not know from Dr. Goldman's
report "what numbers [Dr. Goldman was] going to throw
out there as far as what medical expenses are related and
which ones aren't."
As to Gines' first and second objections, Edwards
countered that Gines had suffered only "a temporary
aggravation of a preexisting degenerative condition"
from the accident, not any permanent injury. Thus, he argued,
"apportionment really isn't necessary" where
"100 percent of what [Gines] is feeling right now"
was due to his preexisting condition. He also pointed out
that, even though Dr. Goldman's report included
impairment ratings, those percentages had been stated only
hypothetically because Dr. Goldman ultimately "ha[d]
committed to the position that [the effect of the accident
was] temporary" and there was no permanent impairment
for which a rating could be assigned. With respect to the
medical expenses, Edwards asserted that, although Dr. Goldman
did not "put numbers to" the costs of treatment, he
did describe in his report the treatment he considered
appropriate for the sort of temporary injury he believed
Gines had suffered in the accident. Edwards contended that
any failure to include the costs of the treatment was
"harmless" and "would [not] be [a] surprise to
the plaintiffs because they deal with this every day in every
case that they have" and "they know what physical
therapy . . . [and] chiropractic [treatment] cost."
Dr. Goldman then told the court that he believed Gines had
suffered only a "temporary exacerbation of a preexisting
injury" which would have required only diagnostic tests,
such as x-rays and an MRI; physical therapy; medication; and
home exercises. He stated that a physical therapist typically
charges, on average, "$125 . . . per session" and
that, including the diagnostic tests and some medication, he
estimated that the total cost for the temporary injury
incurred in the accident would be "somewhere in the
range of 7, 8, maybe $10, 000 at most for the whole diagnosis
The trial court granted in part and denied in part Gines'
motion. The court stated that it agreed "with defense
counsel that apportionment is not an issue, " where
"defendant's position [is] that no part of Mr.
Gines' condition today is attributable to the
accident." The court also decided that "adequate
foundation has been laid for Dr. Goldman to testify about
apportionment. Zero percent if we are talking about a
temporary aggravation and 20 percent" for permanent.
Additionally, the court permitted Dr. Goldman to testify
"that a healthy person who suffered a temporary
sprain/strain of the cervical spine would incur diagnostic
costs and receive treatment consisting of physical therapy,
medication, and home exercises, " as those issues were
"fairly disclosed in his report." However, the
court excluded any testimony "as to what treatment would
have been reasonable and necessary for a person with Mr.
Gines' altered anatomy" as "[t]here is just
nothing in the report that goes to that issue." Finally,
the court found "the failure to disclose the progression
rate generally charged by physical therapists" was
harmless, where counsel for both parties were
"experienced attorneys, " and this information
"is generally known to them." The court accordingly
allowed Dr. Goldman to testify about the costs of treatment
for a healthy person who had experienced the kind of
temporary injury Dr. Goldman believed Gines had suffered from
When called to the stand at the jury trial, Dr. Goldman
testified that Gines had suffered only a temporary
"sprain/strain injury" from the accident; that
normal treatment would have required physical therapy,
medication, and a "home exercise program"; and
that, including physical therapy and diagnostic costs such as
x-rays or an MRI, the entire treatment he had described would
cost approximately seven to ten thousand dollars.
Edwards' counsel complied with the court's order not
to elicit testimony about the course of treatment for a
person with Gines' altered anatomy, but Gines'
counsel raised the issue during cross examination, and
Edwards' counsel followed up on redirect. Dr. Goldman
testified that the course of treatment for someone with
altered spinal anatomy, such as Gines, would be similar as
for a person with normal anatomy and that the treatment would
cost essentially the same. Dr. Goldman was not asked and
provided no opinion regarding a permanent impairment rating
for Gines; the issue was not raised on direct or cross
The jury awarded Gines $10, 000 in past medical expenses,
nothing for future medical expenses, and $7, 500 for
noneconomic damages (i.e., pain and suffering). Gines then
moved for a directed verdict, judgment notwithstanding the
verdict, or, in the alternative, a new trial. Gines contended
that "Dr. Goldman was unfairly allowed to testify
outside the scope of his report" and that he was
"entitled to a directed verdict on the issue of special
damages"-essentially the full amount of the past medical
expenses-"because [Edwards] failed to provide the jury
with a non-arbitrary basis for apportioning damages."
The trial court denied Gines' motion, and Gines appeals.
AND STANDARDS OF REVIEW
Gines argues that the trial court erred when it allowed
Edwards' expert witness, Dr. Goldman, to testify at trial
after the defense failed to provide his expert report before
the deadline. Gines further contends that, even if Dr.
Goldman was allowed to testify, the court should not have
permitted him to specifically testify about cost of the
treatment for a person without altered cervical anatomy when
those opinions were not disclosed in his expert report.
"A trial court's decisions about the admissibility
of expert testimony are reviewed for abuse of
discretion." Johnson v. Montoya, 2013 UT App
199, ¶ 6, 308 P.3d 566.
Gines also argues that the trial court erred when it denied
his motion for directed verdict, judgment notwithstanding the
verdict, or a new trial, because Edwards' evidence
regarding apportionment of injury and costs of the harm
caused by the accident was too speculative to support the
jury's verdict. We review a trial court's ruling on a
motion for a directed verdict and a judgment notwithstanding
the verdict for correctness. Blackmore v. L & D Dev.
Inc., 2016 UT App 198, ¶ 24, 382 P.3d 655;
State v. Bossert, 2015 UT App 275, ¶ 12, 362
P.3d 1258. We review a trial court's decision whether to
grant a new trial for abuse of discretion. Bossert,
2015 UT App ...