Kari L. Baumann, Appellant,
The Kroger Company and Gregory P. Tayler, Appellees.
Certiorari to the Utah Court of Appeals Fourth District,
Heber The Honorable Fred D. Howard No. 130500017
Gregory W. Stevens, Salt Lake City, for appellant
C. Hilbig, Andrea M. Keysar, Salt Lake City, for appellee The
Carolyn Stevens Jensen, Jennifer M. Brennan, Salt Lake City,
for appellee Gregory P. Tayler, M.D.
Justice Himonas authored the opinion of the Court, in which
Justice Durham and Justice Pearce joined.
1 Kari Baumann sued her physician and her pharmacy for
overprescribing medication. But Ms. Baumann failed to
designate any expert on the applicable standards of care
until the day on which the district court had scheduled the
summary judgment hearing. Even then, she only designated an
expert on the pharmacy's standard of care, not the
physician's. Applying the standard in rule 26 of the Utah
Rules of Civil Procedure, the district court excluded the
late-designated expert. It then awarded summary judgment to
both defendants based on its determination that without
expert testimony Ms. Baumann would be unable to show that
either the physician or the pharmacy had violated the
applicable standard of care.
2 On appeal to the court of appeals, Ms. Baumann argued that
the district court should have applied rule 16, instead of
rule 26, in assessing whether to exclude the expert that she
designated. She also argued that the district court erred in
failing to give her more of an opportunity to procure and
designate an expert on the physician's standard of
care-even though she did not ask for more time and did not
otherwise give any indication that such an expert would be
3 The court of appeals correctly held that Ms. Baumann had
failed to preserve her argument that the district court ought
to have given her more time to find an expert on the
physician's standard of care. The court of appeals also
upheld the district court's grant of summary judgment to
the pharmacy. But even though the pharmacy had argued that
Ms. Baumann had failed to preserve her argument that the
district court should have applied rule 16, the court of
appeals resolved this issue on the merits. It also reached
out and decided an issue that had not been briefed to
it-whether the district court had abused its discretion under
rule 26-reaching the right result but announcing an erroneous
rule of law in the process.
4 We correct the court of appeals' legal error and affirm
the court of appeals on the alternative ground that Ms.
Baumann failed to preserve any of the issues she appealed.
5 Kari L. Baumann sued her physician (Dr. Gregory P. Tayler)
and her pharmacy (Smith's, nom de guerre of The
Kroger Company), accusing them of overprescribing drugs. But
she did not designate any experts on the applicable standards
of care for physicians or pharmacies until after the
discovery deadlines had all passed and the defendants'
summary judgment motion- rooted in the proposition that the
standards of care related to prescribing and dispensing blood
pressure medication could only be proved by expert
testimony-had been fully briefed. Indeed, it was not until
the day originally set for the summary judgment hearing that
Ms. Baumann attempted to designate an expert on the
pharmacy's standard of care. She never designated an
expert on the physician's standard of care.
6 The district court granted summary judgment in favor of the
physician and the pharmacy. Based on established Utah law, it
ruled that Ms. Baumann could not make out a prima facie case
without expert testimony about the applicable standards of
care. See, e.g., 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."
(citations omitted)). Based on this law, the court awarded
summary judgment to both the pharmacy and the physician. It
awarded summary judgment to the physician because Ms. Baumann
had never submitted an expert report on the physician's
standard of care. And it awarded summary judgment to the
pharmacy because, even though Ms. Baumann had submitted an
expert report on the pharmacy's standard of care, she had
submitted it late for no good reason-which, the district
court ruled, meant that she could not rely on it at trial.
See Utah R. Civ. P. 26(d)(4) ("If 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
7 On appeal to the Court of Appeals, Ms. Baumann made two
arguments why the district court erred in excluding her
late-designated expert and granting summary judgment on that
basis. First, citing our recent decision in Coroles v.
State, 2015 UT 48, 349 P.3d 739, she argued that the
appropriate sanction for late discovery is the more forgiving
standard set forth in rule 16 of the Utah Rules of Civil
Procedure instead of the sanction for late discovery
articulated in rule 26. Notwithstanding the fact that she had
never asked the district court to apply rule 16-and, indeed,
attempted to lodge her expert report "under URCP
26"- Ms. Baumann argued that the district court erred
when it applied the sanction for late discovery in rule 26
instead of the sanction in rule 16. Noting that ...