R. Lane Boice, deceased, et al v. Stephen P. Marble, M.D., et al
Annotate this CaseThis opinion is subject
to revision before final
publication in the
Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
R. Lane Boice, deceased,
by and through
Jolynn Boice, his personal
representative,
Plaintiff and Appellant,
v.
Stephen P. Marble, M.D.;
Healthsouth of Utah, Inc.,
dba Western Rehabilitation
Institution, Inc., nka
Healthsouth Rehabilitation
Hospital
of Utah; Ann Fjelsted, R.N.;
John M. Sanders, M.D.;
IHC Hospitals, Inc, dba
Cottonwood
Medical Center and LDS Hospital;
and John Does 1 through
10,
Defendants and Appellee.
No. 970124
F I L E D
August 3, 1999
1999 UT 71
---
Third District Court, Salt
Lake County
The Honorable Frank G. Noel
Attorneys:
Douglas G. Mortensen, Salt
Lake City, for plaintiff
Jaryl L. Rencher, Stephen
W. Owens, Salt Lake City,
for defendant
---
ZIMMERMAN, Justice:
¶1
R. Lane Boice ("Boice")
asks this court to reverse the trial court's grant of summary judgment
in favor of Dr. Stephen P. Marble ("Marble"). Boice filed a medical malpractice
action against Marble, alleging Marble caused or contributed to Boice's
loss of use and function of his left wrist, hand, and fingers. The trial
court granted summary judgment in Marble's favor, finding that Boice failed
to present expert testimony of a doctor sharing Marble's specialty to establish
the elements of Boice's negligence claim. We find that Boice presented
sufficient testimony to create a triable issue of fact and reverse.
¶2
On September 19, 1992, Boice
fractured his neck and herniated a cervical disc in a recreational accident.
As a result of this injury, Boice lost use of his legs but maintained almost
full use of both arms and hands. Dr. John M. Sanders ("Sanders") performed
cervical spinal surgery on Boice the day after Boice's injury. Sanders
performed an anterior cervical dissectomy and fusion at the c6-7 level
and also inserted a bone plug in Boice's cervical spine. Following surgery,
Sanders placed Boice in a hard cervical collar to stabilize and protect
his neck. On September 24, 1992, Sanders discharged Boice. Boice was then
transferred to Western Rehabilitation Institute ("WRI") under Marble's
care. The next day, Marble removed Boice's hard cervical collar and replaced
it with a Philadelphia collar. A Philadelphia collar is constructed of
Styrofoam, which "gives" and does not completely immobilize its wearer's
neck.
¶3
On September 26, 1992, at
WRI, Boice was transferred from his bed to a wheelchair that had a reclining
back. During the course of the transfer, the wheelchair's back fell abruptly,
causing Boice to drop suddenly backward and to the left. The fall caused
Boice to experience "electricity-type pain," radiating into his left side
and toward both arms, wrists, and hands. X-ray films were taken but did
not conclusively show whether the incident had compromised the surgical
repair of Boice's spine. On the following day, Boice was taken to Cottonwood
Hospital, where additional x-rays were taken. Dr. Sanders, who performed
Boice's spinal surgery, examined Boice and noted "a new contusion of [Boice's]
cord at the same c6-7 level." Boice was transferred back to WRI. A few
days later, Marble noted a significant neurologic change in Boice's left
wrist, hand, and fingers. Boice could no longer extend his left hand--a
condition known as "wrist drop." Marble diagnosed the wrist drop as resulting
from an injury to Boice's radial nerve and not from reinjury of his spinal
cord. Marble did not, however, order any x-rays. Dr. Sanders again examined
Boice on October 14, and recommended an MRI on Boice's upper extremities.
Both the MRI and x-rays taken the following day undoubtedly indicated a
"severe" c6-7 subluxation. Boice underwent another surgery on his cervical
spine, yet he did not regain use of his left wrist, hand, and fingers.
¶4
Boice filed this medical
malpractice action against Marble and others on March 30, 1995, claiming
that Marble caused or contributed to the loss of use of his left wrist,
hand, and fingers. On April 25, 1996, Boice filed his designation of experts,
which included as experts Dr. Bruce Y. Newton, a physiatrist;(1)
Dr. Robert C. Cantu, a neurosurgeon; and Colleen A. Lowe, a registered
nurse specializing in rehabilitative nursing. However, on November 18,
1996, Dr. Newton informed the parties that he no longer intended to testify
as an expert witness. On November 27, 1996, approximately two months before
the scheduled trial date of February 3, 1997, Boice filed a motion for
leave to designate a substitute expert. At a hearing on December 13, 1996,
Boice proposed that the court allow Dr. Jayne E. Clark, also a physiatrist,
to testify on the standard of care for physiatry. In a minute entry dated
December 20, 1996, the trial court denied the motion to substitute the
new expert. In the pre-trial conference on January 22, 1997, Boice informed
the trial judge that Clark would be Boice's treating physician at the time
of trial. In a ruling from the bench, the trial judge stated that he would
allow Clark to testify as a fact witness, but not as an expert witness.
On January 30, 1997, in a written order, the trial court reaffirmed its
denial of plaintiff's motion to find and designate a substitute expert.
Furthermore, in a combined summary judgment and orders issued on March
3, 1997, the court explained that it denied plaintiff's motion to designate
and offer testimony from the new expert, Dr. Clark, since "she was not
timely designated in the matter."
¶5
Previously, on December
20, 1996, Marble had filed a motion for summary judgment. In opposition,
Boice filed the affidavits of Dr. Cantu and Nurse Lowe. Marble moved to
strike the affidavits. In the joint summary judgment and orders, on March
3, 1997, the trial court granted Marble's motion to strike. The court reasoned
that since Boice did not have an expert witness of Marble's specialty to
testify about the standard of care of a physiatrist, the elements of plaintiff's
medical malpractice claims were not established. See Burton v.
Youngblood, 711 P.2d 245, 248 (Utah 1985). Therefore, summary judgment
was granted for Marble. The other defendants settled with Boice on the
day of trial. Boice then filed this appeal.
¶6
On appeal, Boice argues
that the trial court erred in (i) denying his motion to designate a substitute
expert witness on the standard of care of a physiatrist, (ii) prohibiting
Boice's treating physiatrist, Dr. Clark,(2)
from testifying as an expert at trial, and (iii) striking the Cantu and
Lowe affidavits. Boice argues that each of these three rulings led the
court to erroneously grant summary judgment for Marble. We first address
the court's rulings related to expert testimony and then, given our conclusions
on those issues, review the trial court's grant of summary judgment. We
begin with the trial court's denial of Boice's motion to substitute a new
expert.
¶7
The trial court held a scheduling
conference on April 23, 1996, directing Boice to designate his experts
by April 29. The court also ordered the parties to conclude discovery by
October 15, 1996, and set trial for February 3, 1997. After Boice's designated
physiatry expert decided not to offer expert testimony in mid-November,
Boice moved within eight days to designate a substitute expert. Boice wanted
to use Dr. Jayne E. Clark, a doctor who is board certified in physical
medicine and rehabilitation, as his physiatry expert. The trial court denied
Boice's motion on the grounds that Dr. Clark was not timely designated.
Whether a trial court has erred in granting or denying a motion to designate
a substitute expert is a legal question, which we review for correctness;
however, we afford a trial court very broad discretion in ruling on such
a motion. Cf. Arnold v. Curtis, 846 P.2d 1307, 1309-10 (Utah
1993); State v. Pena, 869 P.2d 932, 938 (Utah 1994). To evaluate
the trial judge's decision, we first set out its context.
¶8
The trial court set a deadline
date for designating expert witnesses pursuant to rule 16 of the Utah Rules
of Civil Procedure. Rule 16 gives the trial judge broad authority to manage
a case and provides, among other things, that courts may establish formal
dates for "the completion of outstanding discovery" and "the identification
of witnesses." Utah R. Civ. P. 16(b)(3), (6). If a party fails to obey
a date set under rule 16, the court may sanction the offending party by
excluding evidence the party intends to present. See id.(3)
¶9
In Arnold v. Curtis,
846 P.2d 1307 (Utah 1993), this court addressed the effect of a party's
failure to obey an expert witness designation deadline set pursuant to
rule 16. The plaintiff in
Arnold alleged that her obstetrician failed
to timely diagnose an adenocarcinoma of her bowel. See id.
at 1308. The obstetrician moved for summary judgment, supported by an affidavit
of an obstetric, gynecology, and gynecologic oncology specialist. See
id. Arnold opposed the summary judgment with an affidavit of a physician
specializing in general surgery. See id. The defendant argued
that the general surgeon was not qualified to testify about the appropriate
standard of care. Plaintiff Arnold then filed the affidavit of another
expert, a specialist in obstetrics, whom Arnold had not previously
designated as an expert. See id. This filing occurred approximately
three months after the expiration of the time for designating experts.
See id. The defendant objected to the court's consideration
of the second, non-designated expert's testimony because the plaintiff
failed to comply with the time set for designating experts. We upheld the
trial court's exclusion of the expert's testimony because the plaintiff
filed the expert affidavit late and never asked the court to excuse the
late designation. See id. at 1309-10.
¶10
Our decision in Arnold,
however, recognizes that there are circumstances in which changes to a
scheduling order are warranted: "While scheduling orders should never be
so inflexible as to not accommodate exigencies that may occur, they are
necessary to expedite the flow of cases through the court system and should
not be lightly disregarded." Id. But unforeseen circumstances do
arise. On occasion, justice and fairness will require that a court allow
a party to designate witnesses, conduct discovery, or otherwise perform
tasks covered by a scheduling order after the court-imposed deadline for
doing so has expired. We believe that this case presents such a circumstance.
¶11
Boice had designated a physiatry
expert, Dr. Bruce Newton, before the court's deadline expired. Boice proceeded
with his case on the assumption that Newton would testify. Unlike the plaintiff
in Arnold, Boice did not "fail[] to obey a scheduling or pretrial
order." Utah R. Civ. P. 16(d). Rather, Boice sought leave to substitute
a new expert only after Newton, his previously designated expert, decided
at the last minute not to testify.(4) Moreover,
Boice moved to substitute witnesses before the postponed discovery cut-off
date,(5) two months before the scheduled
trial date, and before defendants took depositions of three of Boice's
witnesses. Marble argues that allowing Boice to substitute a new expert
would have unfairly prejudiced him because he would not have enough time
to depose Boice's substituted expert and prepare a defense against the
expert's opinions at trial. However, even if it were true that Marble could
take depositions of three other witnesses before trial but not of the new
expert, the trial court could have obviated any prejudice granting a motion
for continuance. Rule 40 of the Utah Rules of Civil Procedure allows a
court to postpone a trial "upon good cause shown."(6)
Utah R. Civ. P. 40(b). In addition, the trial court, acting under either
rule 16 or rule 40, could have required Boice to pay Marble for the expense
of deposing the new expert, costs for expediting the deposition process,
and the like. Given the unexpected nature of Newton's withdrawal, and considering
all the other surrounding circumstances, we conclude that the trial court
abused its discretion in excluding Boice's substitute expert's evidence.
¶12
We also conclude that the
trial court erred in prohibiting Dr. Jayne E. Clark from testifying as
an expert at trial. After Dr. Newton referred Boice to Clark, Clark signed
an affidavit on December 12, 1996, stating that she intended to examine
Boice.(7) On January 6, 1997, Clark examined
Boice. At the pre-trial conference, on January 22, 1997, Boice notified
the court that at the time of trial Dr. Clark would be Boice's treating
physician. Furthermore, on January 28, 1997, Clark sent Newton a fourteen
page letter providing detailed findings and opinions about Boice's injuries
and condition and thanking him for referring Boice to her. Both Boice and
Marble said in their expert designation reports that they reserved the
right to call as experts any of Boice's treating physicians. Boice's expert
designation, for example, stated that "[p]laintiff may call other medical
professionals who provided care to Plaintiff from September 19, 1992 to
the date of the trial . . . ." (Emphasis added). Likewise, Marble's
designation stated that "Dr. Marble anticipates that he may call several
of the treating health providers to Mr. Boice to provide testimony in the
form of opinions regarding causation, injuries, and damages . . . ." Because
both Boice and Marble reserved the right to call any of Boice's
treating medical providers, both faced the possibility of having the other
party call any medical provider who treated Boice prior to the trial as
an expert. For both of these reasons, we conclude that the trial court
erred in denying Boice's motion to call Clark as an expert.
¶13
As an additional claim of
error, Boice argues that the trial court erred in striking the Cantu and
Lowe affidavits filed in opposition to Marble's summary judgment motion.
The trial court struck the affidavits because it concluded that neither
medical provider was competent to testify about the appropriate standard
of care for someone in Marble's specialty.
¶14
We first address the Cantu
affidavit. The trial court struck Dr. Cantu's affidavit because it concluded
that Cantu was not qualified to testify about the standard of care for
a physiatrist. Boice states that he submitted Cantu's affidavit to establish
that Marble breached his duty in providing post-surgical follow-up care
to Boice. An expert witness belonging to one school may testify against
a member of another school once the expert provides sufficient foundation
to show that the method of treatment at issue is common to both schools
or that the expert is knowledgeable about the standard of care of the other
school. See Burton v. Youngblood, 711 P.2d 245, 248 (Utah
1985), cited in Arnold v. Curtis, 846 P.2d 1307, 1310 (Utah
1993).
¶15
In Burton v. Youngblood,
711 P.2d at 247, the plaintiff claimed that a general plastic surgeon negligently
performed a blepharoplasty, a type of eye surgery. The plaintiff sought
to introduce the expert testimony of an ocular plastic surgeon and the
trial court excluded it. We affirmed the trial court's exclusion, not because
the two physicians were of different schools, but because the ocular plastic
surgeon did not provide the necessary foundation "to establish that any
plastic surgeon performing a blepharoplasty would employ the same methods
and follow the same procedure as those [the ocular plastic surgeon] proposed
to describe." Id. at 249. Under this principle, we conclude the
trial court erred in striking Cantu's affidavit. Boice, unlike the Burton
plaintiff, provided sufficient foundation to show that the method of treatment
at issue--post-operative care of a spinal cord injury victim--is the same
for a neurosurgeon, like Cantu, or a physiatrist. And he provided the foundation
that the standard of care for a physician providing post-operative treatment
to a patient recovering from spinal cord surgery is the same whether the
physician was a neurosurgeon or a physiatrist. Cantu's affidavit stated:
I have performed
the very type of surgery which was performed on Lane Boice's cervical spine
in September of 1992. I have also provided follow-up care and treatment
to patients who have had such surgery. Post-surgery care of patients who
have sustained cervical spinal injury is sometimes provided by the neurosurgeon
who performed the surgery and sometimes provided by a physiatrist or other
specialist . . . . The standard of care expected of the attending physician
for a post-surgery cervical spine injury patient who is not in the immediate
post-operative period but has entered the rehabilitative phase is the same
whether the attending is a neurosurgeon, neurologist, orthopedist or physiatrist.
The method of treating the patient is the same regardless of the specialty
in which the treating physician has been trained.
We conclude that the Cantu affidavit
satisfied the test set out in Burton.
¶16
Marble asserts that it would
be inequitable to allow Cantu to testify as an expert because Cantu previously
stated he would not testify as to a physiatrist's standard of care. In
making this argument, Marble relies on the form of Cantu's testimony and
overlooks its substance. During Cantu's deposition, counsel for Marble
took great care to ask Cantu specific questions about his knowledge of
a physiatrist's standard of care. In doing so, however, Marble's counsel
overlooked areas where a neurosurgeon's and physiatrist's practices overlap
and areas where a neurosurgeon is well-qualified to testify. Although Cantu
did state in his deposition that he would not testify about the standard
of care of a physiatrist, he also offered opinions on and testified about
his expertise in post-operative surgical care. Counsel for Marble and counsel
for Boice even discussed Boice's intent to use Cantu as an expert against
Marble. During Cantu's deposition, Marble's counsel implied that Cantu
could not testify against Marble because Cantu is not a physiatrist. Boice's
counsel maintained that Cantu could indeed testify against Marble. He stated:
"By the time I get through with my questions of Dr. Cantu you will see
how he can answer your questions the way he has [about a physiatrist's
standard of care] and still provide very useful information that might
continue to implicate Dr. Marble." After reading Cantu's entire deposition,
and not just the simple refusal of Cantu to testify about "the standard
of care of a physiatrist," we conclude that Marble should have been well
aware that Cantu intended to offer expert testimony about the standard
of care as it related to Marble's post-surgical treatment of Boice.
¶17
Boice next argues that the
trial court erred in striking nurse Lowe's affidavit. We disagree. As we
have explained under Burton, an expert affidavit must provide sufficient
foundation to show that the expert is qualified to testify as to the standard
of care. Lowe is an advanced-practice registered nurse specializing in
rehabilitative care for victims of spinal cord injury. Although Lowe is
well-qualified in rehabilitative care, her affidavit lacks the necessary
facts to establish that the standard of care for a registered nurse specializing
in rehabilitative care is the same for a physician providing post-operative
care. Because Lowe's affidavit did not provide the necessary foundation
to establish her competency to testify about Marble's standard of care,
we affirm the striking of her affidavit.
¶18
We now address the ultimate
issue in this case: whether the trial court erred in granting Marble's
summary judgment motion. A trial court may grant summary judgment only
if the moving party shows that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a matter of law.
Utah R. Civ. P. 56(c). In reviewing a grant of summary judgment, we review
the facts in the light most favorable to the nonmoving party. See
Jensen v. IHC Hosp., Inc., 944 P.2d 327, 339 (Utah 1997). In this
case, the trial court granted Marble's motion for summary judgment because
it concluded that Boice "failed to properly present expert testimony as
required by law (of one sharing Dr. Marble's specialty) willing to establish
the requisite elements of plaintiff's claim against Dr. Marble." Since
we have found that the trial court erred in striking the Cantu affidavit
and denying Boice's motion to substitute a new expert, we conclude that
the grant of summary judgment was erroneous. If the trial court had considered
expert testimony from either Cantu or Clark, it could not have granted
summary judgment because either doctor's testimony raised a material issue
of fact. For example, Cantu's affidavit stated:
Dr. Marble's failure
to conform to the standard of care expected of a physician providing post-surgery
rehabilitative follow-up care to Lane Boice was a significant contributing
cause of Mr. Boice's permanent left wrist, hand and finger impairments.
Dr. Marble's substandard care was, in my opinion, a substantial factor
in causing the permanency of such impairments.
In short, Cantu presented admissible
testimony that Marble had a duty in providing post-surgical care to Boice,
that Marble breached that duty, and that Marble's breach was a significant
cause of Boice's impairment.
¶19
The trial court erred in
granting Marble's motion for summary judgment.(8)
The court should have permitted Boice to substitute a new expert and allowed
Dr. Jayne E. Clark to testify as an expert at trial. Likewise, the court
erred as a matter of law in concluding that Cantu was not qualified to
offer expert testimony against Marble and therefore erred in striking Cantu's
affidavit. We reverse and remand for further proceedings consistent with
this opinion.
---
¶20
Associate Chief Justice
Durham and Justice Russon concur in Justice Zimmerman's opinion.
---
HOWE, Chief Justice, concurring and dissenting:
¶21
I concur except I do not
subscribe to the characterization in footnote five of the statement in
Marble's brief that Boice sought to substitute a new expert "10 weeks after
the cut-off" date as being "misleading." At another place in that same
brief, Marble acknowledged that some depositions were taken after the discovery
cut-off date.
¶22
While the first above-mentioned
statement in Marble's brief was not a wholly accurate statement of the
facts since the cut-off date had been extended for at least some purposes,
the statement is of no consequence in the context of this case and therefore
is not "misleading." What is important and material is that Boice's motion
to substitute a new expert came seven months after the cut-off date for
the parties to designate their expert witnesses. This deadline had not
been extended and was controlling on the substitution of experts--not the
cut-off date of discovery.
---
¶23
Justice Stewart concurs
in Chief Justice Howe's concurring and dissenting opinion.
---
1. A physiatrist is a physician specializing in physical medicine, rehabilitation, and nonsurgical spine care.
2. While Dr. Jayne E. Clark was not Boice's treating physician at the time the motion for leave to designate a substitute expert was filed, Boice would have been under Dr. Clark's care at the time of trial.
3. Rule
16 provides:
If a party fails
to obey a scheduling or pretrial order, . . . the court, upon motion or
its own initiative, may make such orders with regard thereto as are just,
and among others, any of the orders provided in Rule 37(b)(2)(B), (C),
(D). In lieu of or in addition to any other sanctions, the court shall
require the party or the attorney representing him or both to pay the reasonable
expenses incurred because of any noncompliance with this rule, including
attorney fees, unless the court finds that the noncompliance was substantially
justified or that other circumstances make an award of expenses unjust.
Utah R. Civ. P. 16(b).
Rule 37(b)(2) provides the
following sanctions:
(B) an order refusing
to allow the disobedient party to support or oppose designated claims or
defenses, or prohibiting him from introducing designated matters in evidence;
(C) an order striking out pleadings or parts thereof, staying further proceedings until the order is obeyed, dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination . . . . Utah R. Civ. P. 37(b)(2)(B), (C), (D).
4. Marble argues that Boice never intended to use Newton as an expert on liability and causation issues. The record belies that assertion. For example, a number of letters sent from Boice's counsel to defendants indicate Boice's intention of using Newton as a liability and causation expert. On October 11, 1996, Boice's counsel stated: "In March of 1995 . . . I shared with you reports, diagnostic studies and opinions of medical experts including Drs. Cantu and Newton. . . . In short, you have all had the benefit of knowing for a long time the opinions of the experts I have asked to review this case." Moreover, in Boice's Answers to Interrogatories of Defendant Sanders, dated March 11, 1996, Boice specifically stated that he intended to call Newton to testify "[a]s to Plaintiff's claim that the Defendants or one or more of them are liable for his injury." On May 21, 1996, Boice's counsel sent defendants another letter wherein he outlined Newton's findings and opinions; the letter also informed defendants that "Newton has necessarily become familiar with [Boice's] medical history and has reviewed [his] pertinent medical records."
5. Boice
filed his motion to designate a substitute expert on November 27, 1996.
Although this date was after the original discovery cut-off date, Sanders
had earlier, on October 15, 1996, asked the court to extend discovery cut-off
for 45 days. At a hearing held on December 20, 1996, the court heard argument
on Sanders's motion to extend discovery cut-off. The parties argued that
an extension of discovery had already been acquiesced to by the parties
inasmuch as depositions were scheduled to be taken after the original cut-off
date. Boice's attorney maintained that he was waiting for responses to
interrogatories, that he might need to take additional depositions of Sanders's
experts, and that defendants wished to depose Dr. Newton, Boice's expert.
In a minute entry dated the same day, the court granted the extension "as
agreed upon"; he offered no further elaboration of what was agreed upon.
Presumably, the court intended to extend discovery for all of the purposes
discussed at the hearing.
Counsel for Marble attended
and participated in this hearing and was thus well aware that the discovery
cut-off had been extended, at the very least for some purposes, including
defendants' deposing some of Boice's witnesses. Because the court subsequently
granted the extension of the discovery cut-off, the parties had until November
29, 1996, to complete discovery. In his brief to this court, counsel for
Marble stated that Boice sought to substitute a new expert "10 weeks after
the discovery cut-off." This statement by counsel for Marble was technically
true, because it was after the original discovery cut-off. However, it
was misleading because the original cut-off had been extended at least
for some purposes. The same is true of the statement of facts in Marble's
brief, where it is represented that "plaintiff did not file a motion .
. . to depose a new expert until November 27, 1996, more than a month and
a half after the discovery cut-off." These factual assertions are troubling
because counsel for Marble relies heavily in his brief on Boice's asserted
tardiness in seeking to designate a substitute expert as a basis for urging
us to sustain the trial court's rejection of Boice's request. While Marble's
counsel may have honestly believed that the discovery extension did not
apply to his client or did not affect Marble, it did apply to counsel for
Boice, the party Marble's counsel asserts acted tardily. For that reason,
counsel for Marble had an obligation to candidly inform this court of the
fact that the trial court was permitting some discovery to continue after
the initial cut-off and after it denied Boice's request. See Rule
3.3(a)(1) of the Utah Rules of Professional Responsibility.
While Justice Howe finds these statements unimportant and therefore not "misleading," they might have been outcome-determinative. Had we accepted as true counsel for Marble's statements, we might not have found that the trial court abused its discretion when it denied Boice's motion to designate a substitute expert.
6. In fact, rule 40 specifically provides for postponement for lack of evidence: "If the motion is made upon the ground of the absence of evidence, such motion shall also set forth the materiality of the evidence expected to be obtained and shall show that due diligence has been used to procure it." Utah R. Civ. P. 40(b).
It seems that Boice was not planning on making a motion for continuance, and there is no evidence that Marble made such motion either. If the trial court allowed for a substitution of a new expert, it could have conditioned that grant on a continuation of the trial to give all sides time to adequately prepare.
7. Boice's counsel had a copy of that affidavit delivered to Marble's counsel on the following day.
8. Because we reverse summary judgment based on the trial court's error in excluding expert testimony, we do not reach Boice's other arguments on appeal.
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