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Baumann v. The Kroger Co.

Supreme Court of Utah

November 20, 2017

Kari L. Baumann, Appellant,
v.
The Kroger Company and Gregory P. Tayler, Appellees.

         On 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

          Todd C. Hilbig, Andrea M. Keysar, Salt Lake City, for appellee The Kroger Company

          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.

         OPINION

          HIMONAS JUSTICE

         INTRODUCTION

         ¶ 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 forthcoming.

         ¶ 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.

         BACKGROUND

         ¶ 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.[1] 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 failure.").

         ¶ 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.[2] 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 ...


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