District Court, Provo Department The Honorable Fred D. Howard
M. Tilleman, Robert L. Janicki, and Michael L. Ford,
Attorneys for Appellant.
L. Booher, Beth E. Kennedy, Leonard E. McGee, and Peter R.
Mifflin, Attorneys for Appellee.
David N. Mortensen authored this Opinion, in which Judges
Kate A. Toomey and Ryan M. Harris concurred.
Working on a ladder involves certain inherent risks. Working
on a ladder on the shoulder of Utah's largest interstate
freeway magnifies those risks. In this series of unfortunate
events, a car crash into a construction site knocked Noe
Arreguin-Leon (Plaintiff) off a ladder and caused him to
sustain serious bodily injury. Plaintiff sued Hadco
Construction LLC (Hadco) for negligently failing to implement
a proper traffic control plan, which purportedly would have
protected against cars entering the construction site. At
trial, the jury awarded Plaintiff $2.9 million in damages and
found Hadco partially responsible for Plaintiff's
injuries. Hadco appeals, and we reverse and remand for a new
The Utah Department of Transportation (UDOT) contracted with
Hadco to build a new stretch of road on I-15 (the Corridor).
Hadco subcontracted with Highway Striping & Signs (HSS)
to install all road signs along the Corridor. As principal
contractor of the Corridor, Hadco was responsible for
implementing a traffic control plan to protect the
construction workers but failed to do so. On the day of the
accident, because Hadco had provided them no protection from
traffic, the construction workers parked their semitrailer
behind the work site in an attempt to safeguard themselves
while installing a sign.
Plaintiff, who was employed by HSS, worked on the Corridor.
He was atop a ladder, installing an exit sign, when a driver
(Driver), who had fallen asleep at the wheel, suddenly veered
off course, drove into the construction site, and crashed
into Plaintiff's ladder. Plaintiff fell from the ladder
and sustained significant injuries. After resolving his
claims against Driver, Plaintiff brought suit against Hadco
for negligently failing to implement a proper traffic control
During pre-trial discovery, Plaintiff disclosed a traffic
engineer as an expert (Expert). Plaintiff specified that
Expert would testify regarding Hadco's violation of five
engineering practices, regulatory standards, or contractual
provisions, including that: (1) no traffic control (warning
signs, barrels, etc.) was in place at the accident site; (2)
HSS had placed vehicles near the accident site in violation
of a UDOT standard known as a "work clear zone";
(3) HSS customarily placed its vehicles on the side of the
road to protect workers, and if that were the case, a UDOT
approved traffic control plan should have been designed to
close the shoulder in conformance with "TA-5," a
regulatory standard governing how to close the shoulder of a
highway; (4) Hadco knew or should have known that HSS would
be working at the accident site on the day of the incident,
and therefore should have taken corrective action; and (5) no
traffic control plan for the accident site had been designed
by a professional engineer or approved by UDOT.
Because Hadco did not provide a traffic control plan specific
to the Corridor, Expert did not base any opinion on an actual
plan. Plaintiff disclosed that Expert arrived at his opinions
by visiting the accident site and reviewing "(1) UDOT
standard plans and drawings, (2) the Manual on Uniform
Traffic Control Devices (2003 ed.), and (3) information
provided by Plaintiff's counsel, which consisted of
deposition transcripts, the police report, pictures,
subcontract agreements, and daily traffic control plan
inspections." Plaintiff's counsel did not disclose
that Expert would offer trial testimony regarding causation.
In lieu of having Expert submit an expert report, Hadco
elected to depose and cross-examine Expert on the five
disclosed traffic-control opinions, see supra ¶
4. During the deposition, Expert explained that Hadco should
have closed the shoulder. He further explained that Hadco
should have installed a taper, a buffer zone, signs, and
barricades. At the conclusion of the examination, Hadco's
counsel asked Expert, "Do you have any other opinions in
this case that we have not talked about today?" Expert
responded, "No," and asked to review the
transcript, but he did not correct or add anything to his
After Expert's deposition-but before trial-Hadco provided
Plaintiff with a supplemental disclosure, containing "a
packet . . . consisting of Hadco's daily traffic control
plans . . . and copies of UDOT standard drawings." The
supplemental disclosure did not directly or specifically
address the Corridor. Rather, the disclosure contained
UDOT's single-page standard plan for a lane closure.
Hadco also retained a traffic control expert "to rebut
[Expert's] five disclosed traffic-control opinions,"
but did not retain an expert "to testify on the issue of
whether Hadco's conduct caused Plaintiff's injuries
because Plaintiff had not disclosed an expert on that
At trial, Hadco's primary defenses were that Driver-not
Hadco-caused Plaintiff's injuries, and that Hadco was
unaware that HSS was working on the Corridor on the day of
the accident. The jury heard undisputed evidence, from
Hadco's Director of Operations and Hadco's own expert
witness, that (1) the purpose of traffic control plans is to
protect workers from traffic, (2) it was Hadco's
responsibility to implement a traffic control plan for the
Corridor, and (3) Hadco did not implement any plan.
Expert testified regarding the five disclosed traffic-control
opinions. Plaintiff then asked Expert to give his opinion on
whether Hadco's failure to implement a traffic control
plan caused the accident and Plaintiff's injuries.
Hadco's counsel immediately objected to the testimony
regarding causation for three reasons: (1) Plaintiff had not
disclosed that Expert would offer any opinions regarding
causation, (2) Expert had not disclosed any data or
information upon which he allegedly relied to formulate his
surprise causation trial opinion, and (3) Expert testified at
his deposition that he had no opinions in the case beyond
those discussed at his deposition, which did not include any
opinion relating to causation. The following bench conference
Hadco's counsel: Seems to me like this testimony is going
toward causation-would traffic control have prevented the
accident-and it goes beyond any opinion that he's ever
disclosed in this case. There's a list of his items of
testimony, and he doesn't touch on that at all.
Plaintiff's counsel: Your Honor, [Expert] was deposed in
this case. [Hadco's counsel] had every opportunity to ask
any question he wanted, and- he's not limited to the
initial disclosure. If he had- if [Hadco's counsel] had
elected a report, he would be limited to the contents of the
report, but because a deposition has been elected, [Expert]
is not so limited.
Hadco's counsel: That's not correct, your Honor.
Plaintiff's counsel: And-and there were documents
provided to [Expert] after (inaudible).
Hadco's counsel: Then he needs to supplement his
The court: Your objection is noted and is, frankly,