Segota v. Young 180 Co., 2020 UT App 105, ¶ 10, 470 P.3d 479 (cleaned up). We will find abuse of discretion where there exists an erroneous conclusion of law or "where there is no evidentiary basis for the trial court's ruling." Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 15, 438 P.3d 25 (cleaned up), aff'd 2020 UT 59, 472 P.3d 927.
¶18 Thus, had Kathy been informed that she would be Colten's only case-in-chief witness, she would have been given a better opportunity to decide whether she needed to hire an attorney and investigate what Colten's case really hinged on, better preparing herself for trial. Not being provided this information until 28 days before trial-months past the rule 26 deadline for initial disclosures-went against the purpose of rule 26, "which is to preclude parties from trying to gain an advantage by offering 'surprise' testimony at trial that has not been [properly] disclosed." Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 24, 438 P.3d 25, aff'd, 2020 UT 59, 472 P.3d 927. See also Utah R. Civ. P. 26 advisory committee notes ("The intent of [initial disclosures] is to give the other side basic information concerning the subjects about which the witness is expected to testify at trial, so that the other side may determine
But "causation is generally determined by an examination of the facts, and questions of fact are to be decided by the jury." Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 30, 438 P.3d 25 (cleaned up), aff'd, 2020 UT 59, 472 P.3d 927; see also Nielsen v. LeBaron, 2023 UT App 29, ¶ 21, 527 P.3d 1133, cert. denied, 534 P.3d 751 (Utah 2023) ("In short, rarely can proximate cause be resolved without a finder of fact making that determination . . . ."); Godesky v. Provo City Corp., 690 P.2d 541, 544 (Utah 1984) ("[P]roximate causation is generally a matter of fact to be determined by the jury.").
That Copp was represented by three sets of counsel does not explain why any individual counsel was unable to identify the additional witnesses until the last day of discovery. In essence, Copp is asking us to disregard "the intent of rule 26, which is to preclude parties from trying to gain an advantage by offering 'surprise' testimony at trial that has not been disclosed to, or evaluated by, the opposing party," Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 24, 438 P.3d 25, aff'd, 2020 UT 59, 472 P.3d 927, to make up for her counsel's failure to follow disclosure rules. This we will not do.
¶14 "We will affirm the denial of a motion for judgment as a matter of law when a review of the evidence in a light most favorable to the non-moving party demonstrates that reasonable minds could disagree with the ground asserted for the motion." Pinney v. Carrera, 2019 UT App 12, ¶ 20, 438 P.3d 902 (quotation simplified), aff'd, 2020 UT 43, 469 P.3d 970; accord Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 29, 438 P.3d 25, aff'd, 2020 UT 59, 472 P.3d 927.
¶18 To satisfy this element and survive Birkin's motion for summary judgment, Dierl needed to show that the alleged breach, "in the natural and continuous sequence (unbroken by an efficient intervening cause), produce[d] the injury" and that without it, "the result would not have occurred." Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 30, 438 P.3d 25 (cleaned up), aff'd, 2020 UT 59, 472 P.3d 927. While "proximate cause is ordinarily a question of fact for the jury, summary judgment is appropriate . . . where the proximate cause of the injury is left to conjecture." Thurston v. Workers Comp. Fund, 2003 UT App 438, ¶ 13, 83 P.3d 391 (cleaned up).
See Franklin v. Stevenson, 1999 UT 61, ¶ 7, 987 P.2d 22 (stating that a motion for a directed verdict "does not raise questions relating to the competency or admissibility of evidence," and that, in considering such a motion, "the evidence must be taken as it existed at the close of the trial," and that therefore "all evidence submitted to the jury must be considered by the court in ruling on a motion for [a directed verdict]" (quotation simplified)); see also Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 29, 438 P.3d 25 ("In considering [a motion for a directed verdict], we view the evidence as it existed at the close of evidence, without determining whether it was properly admitted."), aff'd, 2020 UT 59, 472 P.3d 927. Accordingly, it is appropriate to consider the evidence found on the gray phone in evaluating the soundness of the trial court's denial of Hoffman's motion for a directed verdict.
If a party requires the expert to prepare a report, that report "must contain a complete statement of all opinions the expert will offer at trial and the basis and reasons for them." Id.; see also Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 21, 438 P.3d 25 ("The election of a report locks in the scope of the expert's testimony by operation of the rule itself . . . ."), aff'd, 2020 UT 59, 472 P.3d 927. If a party elects to take the expert's deposition, "it is up to the party deposing the expert to 'lock in' the expert's opinion," and the expert "is bound by the testimony" given in a deposition. See Arreguin-Leon, 2018 UT App 225, ¶ 21.
And no predicate discovery order is required before the exclusionary sanction may be imposed. See Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, ¶ 18, 445 P.3d 434 (upholding exclusion under rule 26(d)(4) without requiring violation of a prior court order); Segota v. Young 180 Co. , 2020 UT App 105, ¶¶ 16–23, 470 P.3d 479 (same); see also Arreguin-Leon v. Hadco Constr. LLC , 2018 UT App 225, ¶¶ 22, 24–25, 438 P.3d 25 (concluding admission of expert's testimony was improper where the plaintiff failed to supplement his initial discovery response), aff'd 2020 UT 59, 472 P.3d 927.¶49 Unlike rule 26, rule 37 conditions the availability of discovery sanctions upon the failure of a party to follow a discovery order.