Northgate Village Development v. Orem City

2018 UT App 89
THE UTAH COURT OF APPEALS
NORTHGATE VILLAGE D EVELOPMENT LC,
Appellant,
v.
O REM C ITY ,
Appellee.
Opinion
No. 20160408-CA
Filed May 17, 2018
Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 090401127
J. Craig Smith, Kathryn J. Steffey, and Clayton H.
Preece, Attorneys for Appellant
Jody K. Burnett and Robert C. Keller, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN and K ATE A. TOOMEY
concurred.
MORTENSEN, Judge:
¶1 	Northgate Village Development LC purchased property
from 	Orem 	City 	containing 	multiple 	stockpiles 	of 	buried
garbage, 	including 	asphalt 	and 	other 	debris. 	Although 	the
parties anticipated that some cleanup would be necessary, the
amount 	of 	garbage 	ultimately 	discovered 	was 	significant,
generating cleanup costs of nearly $3 million. Northgate and the
City dispute who should pay for the cleanup of what garbage.
The district court entered orders excluding evidence of any
garbage unrelated to asphalt and excluding two of Northgate’s
expert witnesses from testifying. Northgate, on interlocutory

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20160408-CA 	2 	2018 UT App 89
appeal, contends that these rulings were in error. We agree and
reverse.
BACKGROUND
¶2 	Northgate agreed to purchase property from the City to
develop it for mixed use. The City had previously used the
property for its public works facility. The site had apparently
also been used to dump “hundreds of thousands of tons of
debris,” which included removed curb, gutter, sidewalk, asphalt,
trees, tires, and transformers, among other things.
¶3 	Before the sale, the parties anticipated the presence of at
least some of the debris, and the City agreed to “complete any
environmental clean-up responsibilities specified in the written
action plan” for the site. As Northgate discovered more and
more garbage, the parties disputed the meaning of the action
plan and the specific responsibilities the City was required to
perform. Northgate filed suit against the City in 2009,1 asserting
damages of close to $3 million in compensation for cleaning up
garbage.
¶4 	The 	litigation 	proceeded 	through 	discovery 	and 	the
parties eventually submitted competing motions for summary
judgment. The district court, in large part, granted the City’s
motion and denied Northgate’s motion, ruling that the City was
1. The date of filing is important as it informs what version of the
discovery rules should be applied to the case. Rule 26 of the
Utah Rules of Civil Procedure, which governs discovery, was
amended in 2011, after this case was filed. See Utah R. Civ. P. 26.
As we more thoroughly explain below, infra ¶ 27, the pre-
amendment version of the rule applies here because Northgate
originally filed its petition before the amendment’s effective
date.

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responsible only for reimbursing Northgate for removal and
disposal of buried electrical transformers. Northgate appealed
that order, providing this court with its first occasion to review
this case. This court affirmed in part and reversed in part. See
Northgate Village Dev. LC v. Orem City (Northgate I), 2014 UT App
86, ¶ 1, 325 P.3d 123. Because on remand the district court
interpreted the holding of Northgate I as limiting the type of
garbage the City is obligated to clean up, this court’s treatment
of the term “asphalt” in Northgate I is of particular importance.
¶5 	In Northgate I, this court affirmed the district court’s
determination 	that 	the 	sale 	contract 	obligated 	the 	City 	to
perform only those cleanup actions listed on the “Clean-Up List”
attached to the contract. Id. ¶ 31. However, this court reversed
the district court’s first interpretation of the Clean-Up List and
determined 	that 	the 	Clean-Up 	List 	“contains 	ambiguities,”
specifically noting that it “does not clearly indicate how the City
must 	deal 	with 	buried 	asphalt.” 	Id. 	¶¶ 	36, 	39. 	This 	court
explained,
[I]n the section of the Clean-Up List describing the
City’s clean-up responsibilities in the “Soil Borrow
& Landfill Area,” there are three entries:
1. Landfilling 	construction 	materials 	with
pieces of asphalt
2. Permit required for continued landfilling
3. Site assessment and application required
for closure of site
Northgate and the City ascribe contrary meanings
to this section of the Clean-Up List. In the City’s
view, the first and second entries should be read
together, allowing the City to fulfill its obligation
to clean up the asphalt by simply applying for and

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20160408-CA 	4 	2018 UT App 89
receiving proper permits. In Northgate’s view, the
first 	and 	second 	entries 	impose 	separate
requirements: 	the 	City 	must 	clean 	up 	the
“construction materials with pieces of asphalt” and
must also apply for and receive permits for any
continued landfilling.
Both 	the 	City’s 	reading 	and 	Northgate’s 	are
plausible. Consequently, without reference to parol
evidence of the parties’ intent, we see no way to
select one reading of the asphalt provision over the
other. The Land Sale Contract therefore contains a
facial ambiguity, and resolving this facial contract
ambiguity 	requires 	evidence 	of 	the 	parties’
intent. Because 	the 	intent 	of 	the 	parties 	is 	a
question of fact to be determined by the jury, the
district court erred by determining at summary
judgment that the City could fulfill its asphalt
clean-up responsibilities by securing the proper
permits. We therefore vacate the district court’s
determination on this issue.
Id. ¶¶ 37–38 (cleaned up).2 This court ultimately concluded,
“Because we recognize facial ambiguities in the Clean-Up List,
we 	vacate 	the 	district 	court’s 	determination 	that 	the 	City
satisfied its clean-up obligations. We reverse the district court’s
grant of summary judgment and remand to allow the district
court to hear evidence regarding the parties’ intent with respect
to asphalt clean-up[.]” Id. ¶ 55.
¶6 	After remand, the case proceeded and became focused on
two points of contention, which we review in detail. We first
2. Northgate I contains a detailed description of the potential
environmental hazards of buried asphalt. See 2014 UT App 86,
¶ 37 n.5, 325 P.3d 123.

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20160408-CA 	5 	2018 UT App 89
outline the facts pertaining to the City’s pretrial request to
preclude 	Northgate 	from 	introducing 	evidence 	of 	its
remediation of certain types of buried debris. In ruling on this
issue, the district court considered how this court construed the
term 	“asphalt” 	in 	Northgate 	I. 	Second, 	we 	review the 	facts
surrounding Northgate’s attempt after remand, as required by
Northgate I, to articulate its damages as limited by the geographic
areas specified in the Clean-Up List and the district court’s
eventual exclusion of certain expert testimony.
Exclusion of Evidence Under Rules 401 and 403
¶7 	The 	City 	moved 	to 	exclude 	evidence 	of 	Northgate’s
removal of garbage other than asphalt from the site, arguing the
evidence was improper under rule 403 of the Utah Rules of
Evidence. The City argued that the “[p]resentation of such
evidence, testimony, or argument will . . . unfairly prejudice the
City 	to 	the 	extent 	that 	it 	unnecessarily 	imputes 	actionable
conduct to the City, particularly to the extent that it may be
alleged 	that 	the 	City 	violated 	environmental 	regulations.”
Northgate countered that the construction debris with asphalt
was intermingled with the rest of the garbage—including buried
transformers that the City was required to remove—and that
“the exclusion from evidence of all references to hazardous
materials found on the . . . site would be prejudicial error.” The
district court granted the City’s motion.
¶8 	Although the City had moved to exclude evidence only
under rule 403, the 	district 	court decided 	the 	issue almost
exclusively under rule 401.3 The district court excluded under
rule 	401 	any 	“evidence 	regarding 	Northgate’s 	removal 	of
3. We note that Northgate does not argue that the district court
erred by sua sponte deciding the issue under rule 401. Northgate
argues only the merits of the court’s rule 401 decision, and we
analyze only the arguments Northgate brings on appeal.

Northgate Village Development v. Orem City
20160408-CA 	6 	2018 UT App 89
construction material not containing asphalt.” It reasoned that
“the 	City’s 	responsibility 	regarding 	landfill 	material 	not
containing asphalt is not at question in this case per the Court of
Appeals’ ruling; the Clean-Up List does not include a provision
for such landfill material. Therefore, under the Court of Appeals’
ruling, that material has no bearing in this case.” The district
court 	further 	reasoned 	that, 	despite 	Northgate’s 	claim 	that
removing asphalt without removing other garbage would be
impossible, “the percentage of urban detritus excavated on the
property amounted to only 5–10% of the total debris excavated, a
negligible expense.” The district court also reasoned that any
dumping fees associated with removing garbage other than
asphalt would likely be offset by the “saved costs in crushing the
construction 	material 	containing 	asphalt 	and 	refilling 	the
excavation site with it.” Upon this analysis, the district court
concluded 	that 	“evidence 	regarding 	the 	other 	construction
material aside from the asphalt is not relevant.”
¶9 	The district court also ruled that the evidence of other
garbage should be excluded under rule 403. The district court
provided only one statement on the matter, saying, “[M]oreover,
it would be more prejudicial than probative.” The court did not
analyze how or why that evidence would be prejudicial.
Exclusion of Expert Testimony
¶10 	On remand, Northgate filed a motion to extend discovery
to allow its experts to identify and limit its claim for damages to
the geographic areas outlined in the Clean-Up List in light of the
decision in Northgate I. The district court granted the motion, and
Northgate timely filed supplemental disclosures and reports
from its experts, Expert 1 and Expert 2.
¶11 	Expert 1’s supplemental disclosure refers to, among other
things, Greenfield, an excavation company that Northgate hired
to assist in unearthing and removing garbage. The disclosure
also refers to a bookkeeping and accounting employee for one of

Northgate Village Development v. Orem City
20160408-CA 	7 	2018 UT App 89
Northgate’s 	related 	entities 	(Northgate 	Employee). 	Expert 	1
reported, 	“Based 	on 	work 	location 	designations 	for 	each
Greenfield 	invoice 	prepared 	by 	or 	under 	the 	direction 	of
[Northgate 	Employee], 	and 	associated 	underlying
documentation reviewed by the project supervisor, charges by
Greenfield to Northgate for site remediation were allocated by
pit[.]” 	Expert 2’s report referenced Expert 1’s supplemental
disclosure and made conclusions “[b]ased on the information
provided” in Expert 1’s report.
¶12 	After the close of the extended discovery period, the City
contested the reliability of these expert reports in a motion to
exclude 	Expert 	1’s 	and 	Expert 	2’s 	testimony, 	arguing 	that
Northgate Employee’s bookkeeping, upon which the experts’
opinions were based, was unreliable. Northgate Employee had
testified, in reference to an “apportionment document” that she
had prepared—which demonstrated an allocation of excavation
costs to particular areas—that she “[did not] remember how
[allocating costs by area] was done” or “where [numbers for
yardage 	calculations] 	came 	from.” 	The 	City 	argued 	that
Northgate’s experts were not reliable because they relied on
Northgate 	Employee’s 	report, 	which 	itself 	was 	unreliable.
Northgate responded to the motion to exclude with declarations
from Expert 1 and Expert 2 that they did not rely on Northgate
Employee’s 	“apportionment 	document” 	in 	forming 	their
opinions.
¶13 	The district court excluded the testimony of Expert 1 and
Expert 2. In its ruling, the district court concluded that, based on
the experts’ declarations, their testimony met the threshold for
reliability under rule 702(b) of the Utah Rules of Evidence.
However, while applying the most current version of the Utah
Rules of Civil Procedure, the district court concluded that the
declarations were a form of supplementation after the discovery
deadline and that “[t]he expert reports failed to contain ‘all data
and other information that will be relied upon by the witness in
forming those opinions.’” (Quoting Utah R. Civ. P. 26(a)(4)(A).)

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20160408-CA 	8 	2018 UT App 89
Consequently, the district court “exclude[d] the expert testimony
of [Expert 1] and [Expert 2] under Utah R. Civ. P. 37(f) for failing
to comply with Rule 26 disclosures.” Northgate appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 	Northgate 	presents 	three 	issues 	for 	review. 	First, 	it
contends that “the [district] court erred in finding that evidence
of all buried debris, other than transformers and asphalt, is not
relevant under Utah Rule of Evidence 401.” “The [district] court
has broad discretion in determining the relevancy of offered
evidence, and error will be found only if the [district] court
abused its discretion.” Chapman v. Uintah County, 2003 UT App
383, ¶ 7, 81 P.3d 761 (cleaned up). Generally, the abuse-of-
discretion standard of review includes “review to ensure that no
mistakes of law affected a lower court’s use of its discretion.”
State v. Barrett, 2005 UT 88, ¶ 17, 127 P.3d 682. A district court’s
ruling based on a misunderstanding of the rules of evidence is a
“threshold legal error,” the application of which we owe no
deference. State v. Richardson, 2013 UT 50, ¶ 23, 308 P.3d 526.
Further, “[a] district court’s interpretation of case law presents
an issue of law, which we review for correctness.” Utah Dep’t of
Transp. v. Boggess-Draper Co., 2016 UT App 93, ¶ 12, 373 P.3d 210
(cleaned up).
¶15 	Second, Northgate contends that the district court erred in
excluding evidence of Northgate’s removal of buried debris not
containing asphalt under rule 403. “We review a [district] court’s
decision to admit or exclude evidence under Rule 403 of the
Utah Rules of Evidence under an abuse of discretion standard,
and 	will 	not 	overturn 	a 	lower 	court’s 	determination 	of
admissibility unless it is beyond the limits of reasonability.”
Diversified Holdings L.C. v. Turner, 2002 UT 129, ¶ 6, 63 P.3d 686
(cleaned up). “[L]egal errors, such as the incorrect interpretation
of a statute or the application of an improper legal standard, are

Northgate Village Development v. Orem City
20160408-CA 	9 	2018 UT App 89
usually an abuse of discretion.” Schroeder v. Utah Attorney Gen.’s
Office, 2015 UT 77, ¶ 49, 358 P.3d 1075.
¶16 	Third, Northgate contends that the district court erred
when it excluded Northgate’s expert witnesses by applying rule
26 of the Utah Rules of Civil Procedure as amended after 2011,
arguing that the court should instead have applied the pre-
amendment rule. “Generally, the [district] court is granted broad
latitude in handling discovery matters, and we will not find
abuse of discretion absent an erroneous conclusion of law or
where there is no evidentiary basis for the [district] court’s
rulings.” Thurston v. Workers Comp. Fund of Utah, 2003 UT App
438, ¶ 11, 83 P.3d 391. “The proper interpretation of a rule of
procedure is a question of law, and we review the [district]
court’s decision for correctness.” State v. White, 2016 UT App 241,
¶ 10, 391 P.3d 311 (cleaned up). Again, the “application of an
improper 	legal 	standard” 	usually 	constitutes 	“an 	abuse 	of
discretion.” Schroeder, 2015 UT 77, ¶ 49.
ANALYSIS
I. Exclusion of Evidence Under Rule 401
¶17 	The district court ruled that the evidence of any garbage
Northgate removed from the site other than asphalt was not
relevant—and therefore inadmissible—under rule 401 of the
Utah Rules of Evidence. Northgate contends that this exclusion
was in error, specifically arguing that “[t]he [district] court’s
ruling misinterprets and misapplies the Court of Appeals’ ruling
by improperly limiting the type of buried debris listed on the
Clean-Up List.”4 We agree.
4. 	The 	City 	claims 	that 	Northgate 	failed 	to 	preserve 	this
argument. However, Northgate specifically argued to the district
(continued…)

Northgate Village Development v. Orem City
20160408-CA 	10 	2018 UT App 89
¶18 	Evidence is relevant if (1) “it has any tendency to make a
fact 	more 	or 	less 	probable 	than 	it 	would 	be 	without 	the
evidence” and (2) “the fact is of consequence in determining the
action.” Utah R. Evid. 401. Based on the district court’s reading
of this court’s ruling in Northgate I, the district court ruled that
evidence regarding Northgate’s removal of other construction
material 	that 	was 	not 	asphalt 	was 	not 	relevant 	to 	decide
“whether the City was bound under the Agreement to remove
asphalt from the property.” The district court ruled, “[T]he
City’s responsibility regarding landfill material not containing
asphalt is not at question in this case per the Court of Appeals’
ruling; the Clean-Up List does not include a provision for such
landfill material. Therefore, under the Court of Appeals’ ruling,
that material has no bearing in this case.” But, we determine that
the district court incorrectly interpreted Northgate I and thus
erroneously excluded evidence as irrelevant.
¶19 	This court’s decision in Northgate I did not narrow the
scope of relevant evidence solely to asphalt, as the district court
determined. 	Instead, 	this 	court 	specifically 	ruled 	(1) 	that
Northgate’s interpretation of the contract—that the City must
clean up “‘construction materials with pieces of asphalt’ and
must also apply for and receive permits for any continued
landfilling”—was “plausible,” Northgate I, 2014 UT App 86,
¶¶ 37–38, 	325 	P.3d 	123, 	and 	(2) 	that 	“[t]he 	Land 	Sale
Contract . . . contains a facial ambiguity, and resolving this facial
(…continued)
court, “If you look at the Court of Appeals’ opinion . . 	.
paragraph 37 states, ‘In Northgate’s view, the first and second
entries impose separate requirements. The City must clean up
the, quote, “construction materials with pieces of asphalt,” end
quote, and must also apply for and receive permits for any
continued land filling.’ So it’s not just asphalt.” We therefore
conclude that the City’s preservation argument is meritless.

Northgate Village Development v. Orem City
20160408-CA 	11 	2018 UT App 89
contract ambiguity requires evidence of the parties’ intent,” id.
¶ 38. 	This 	court 	concluded, 	“Because 	we 	recognize 	facial
ambiguities in the Clean-Up List, we vacate the district court’s
determination . . . and remand to allow the district court to hear
evidence regarding the parties’ intent with respect to asphalt
clean-up[.]” Id. ¶ 55. Thus, the ultimate holding of Northgate I is
that 	the 	Clean-Up 	List 	is 	ambiguous, 	meaning 	that 	the
interpretation of the Clean-Up List should be left to the jury. Id.
¶¶ 35, 38.
¶20 	Further demonstrating that Northgate I did not narrow the
type of relevant evidence, nowhere in the opinion is there any
analysis of the phrase “construction materials with pieces of
asphalt.” 	Although 	Northgate 	I 	referred 	to 	the 	phrase
“construction 	materials 	with 	pieces 	of 	asphalt,” 	by 	way 	of
shorthand, as “the asphalt provision” or “asphalt clean-up,” it
never substantively analyzed or limited that term of the contract.
Id. ¶ 38. Instead, as stated, the Northgate I court (1) concluded the
Clean-Up List is ambiguous as to what the parties intended to
include and (2) identified the interpretation and determination
of the scope of that provision as an issue to be decided by the
jury, 	not 	the 	court. 	We 	therefore 	reject 	the 	district 	court’s
conclusion 	that 	Northgate 	I 	narrowed 	the 	type 	of 	relevant
evidence.
¶21 	The district court’s analysis of the question of relevance
was based on a misreading of Northgate I. Accordingly, because
the 	district 	court 	based 	its 	determination 	on 	an 	incorrect
interpretation of the law, we conclude that the court abused its
discretion 	by 	excluding 	the 	evidence. 	See 	Schroeder 	v. 	Utah
Attorney Gen.’s Office, 2015 UT 77, ¶ 49, 358 P.3d 1075 (“[L]egal
errors, such as the incorrect interpretation of a statute or the
application of an improper legal standard, are usually an abuse
of discretion.”); State v. Richardson, 2013 UT 50, ¶ 23, 308 P.3d 526
(reversing the trial court’s rulings under rules 401 and 402 based
on a “threshold legal error”); State v. Barrett, 2005 UT 88, ¶ 17,
127 P.3d 682 (explaining that the abuse-of-discretion standard of

Northgate Village Development v. Orem City
20160408-CA 	12 	2018 UT App 89
review generally includes “review to ensure that no mistakes of
law affected a lower court’s use of its discretion”).
II. Exclusion of Evidence Under Rule 403
¶22 	While the district court based its decision to exclude
evidence primarily under rule 401, the court also summarily
concluded that the evidence should be excluded under rule 403.
Northgate argues that this ruling should be reversed because the
district court “appl[ied] the wrong standard in requiring only a
showing that [such] evidence ‘would be more prejudicial than
probative’ rather than the correct legal standard that the alleged
prejudice ‘substantially outweighs the probative value.’” We
agree.
¶23 	Relevant evidence may be excluded “if its probative value
is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, 	undue 	delay, 	wasting 	time, 	or 	needlessly 	presenting
cumulative evidence.” Utah R. Evid. 403. “A district court abuses
its discretion under rule 403 only where it applies the wrong
legal 	standard 	or 	its 	decision 	is 	beyond 	the 	limits 	of
reasonability.” Met v. State, 2016 UT 51, ¶ 96, 388 P.3d 447
(cleaned up).
¶24 	Here, 	the 	district 	court 	applied 	the 	incorrect 	legal
standard. Its only reference to the issue was its conclusion that
admitting evidence of all the types of garbage “would be more
prejudicial than probative.” The court did not explain whether it
determined the prejudice to be “unfair,” nor did it explain
whether the probative value was “substantially outweigh[ed]”
by the danger of any unfair prejudice, as the rule requires. See
Utah 	R. 	Evid. 	403. 	Instead, 	the 	court 	stated 	only 	that 	the
evidence “would be more prejudicial than probative.” Thus, the
district court applied the incorrect legal standard by failing to
determine 	whether 	the 	probative 	value 	was 	substantially

Northgate Village Development v. Orem City
20160408-CA 	13 	2018 UT App 89
outweighed by the danger of unfair prejudice—mere prejudice is
not enough.
¶25 	We therefore conclude that the district court abused its
discretion by excluding evidence under rule 403. See Met, 2016
UT 51, ¶ 96.
III. Exclusion of Expert Testimony
¶26 	Northgate contends that the district court erred when it
excluded the testimony of its experts, Expert 1 and Expert 2.
Specifically, Northgate argues that the district court applied the
wrong version of the Utah Rules of Civil Procedure and, in so
doing, applied an inapplicable, heightened disclosure standard.
Northgate further argues that, because its disclosures satisfied
the old rule pertaining to disclosure of expert testimony, the
district court’s error was not harmless. We agree.
¶27 	The Utah Rules of Civil Procedure were amended in 2011.
Among the rules affected by the 2011 amendment was rule 26,
which generally governs disclosure and discovery. Compare Utah
R. Civ. P. 26(a)(3)(B) 	(2009) (requiring the expert report to
contain “the subject matter on which the expert is expected to
testify[,] the substance of the facts and opinions to which the
expert is expected to testify[, and] a summary of the grounds for
each opinion”),5 with id. R. 26(a)(4)(A) (2018) (requiring the
expert report to contain “a brief summary of the opinions to
which the witness is expected to testify[ and] all data and other
information that will be relied upon by the witness in forming
those opinions”). The purpose of the 2011 amendments was
to reduce discovery costs by requiring each party
to produce, at an early stage in the case, and
5. Northgate originally filed its petition in 2009. Thus, we cite the
2009 version of the Utah Rules of Civil Procedure.

Northgate Village Development v. Orem City
20160408-CA 	14 	2018 UT App 89
without a discovery request, all of the documents
and physical evidence the party may offer in its
case-in-chief and the names of witnesses the party
may call in its case-in-chief, with a description of
their 	expected 	testimony. 	In 	this 	respect, 	the
amendments 	build 	on 	the 	initial 	disclosure
requirements of the prior rules.
Id. R. 26 advisory committee notes. “Due to the significant
changes in the discovery rules, the [Utah] Supreme Court order
adopting the 2011 amendments makes them effective only as to
cases filed on or after the effective date, November 1, 2011,
unless otherwise agreed to by the parties or ordered by the
court.” Id. R. 1 advisory committee notes.
¶28 	Here, 	the 	district 	court 	excluded 	the 	testimony 	of
Northgate’s experts after applying the current rule. The district
court stated, “The expert reports failed to contain ‘all data and
other information that will be relied upon by the witness in
forming 	those 	opinions.’” 	(Quoting 	id. 	R. 	26(a)(4)(A).) 	The
language that the district court quoted is not found in the old
rule, but is a direct quote from the current rule. Because this
matter 	has 	been 	pending 	since 	2009, 	prior 	to 	the 	2011
amendments, the old rule applies, and therefore the district
court erroneously applied the post-amendment standard.6
¶29 	Such an error in the application of the law is an abuse of
discretion. See Schroeder v. Utah Attorney Gen.’s Office, 2015 UT 77,
¶ 49, 358 P.3d 1075 (explaining that the “application of an
improper 	legal 	standard” 	usually 	constitutes 	“an 	abuse 	of
discretion”); Thurston v. Workers Comp. Fund of Utah, 2003 UT
App 438, ¶ 11, 83 P.3d 391 (explaining that a district court abuses
6. We note that the parties refer to no agreement between one
another, nor any order from the district court, establishing that
the amended rule should apply.

Northgate Village Development v. Orem City
20160408-CA 	15 	2018 UT App 89
its discretion in deciding matters of discovery where it makes
erroneous conclusions of law).
¶30 	The City argues that any error was harmless because
Northgate’s disclosures failed even under the old rule. Indeed, if
Northgate’s disclosures were insufficient under the old rule, the
district court’s misapplication of the post-amendment standard
would be harmless. However, we conclude that Northgate’s
disclosure satisfied the pre-amendment standard. On this basis,
the district court’s application of the new rule was harmful.
¶31 	The pre-amendment rule required that a written report
from retained experts contain
the subject matter on which the expert is expected
to testify; the substance of the facts and opinions to
which the expert is expected to testify; a summary of
the grounds for each opinion; the qualifications of the
witness, 	including 	a 	list 	of 	all 	publications
authored by the witness within the preceding ten
years; the compensation to be paid for the study
and testimony; and a listing of any other cases in
which the witness has testified as an expert at trial
or by deposition within the preceding four years.
Utah R. Civ. P. 26(a)(3)(B) (2009) (emphasis added). Thus, while
the district court excluded the experts’ testimony based on
insufficient disclosure of complete “data and other information,”
the applicable rule requires only the disclosure of “a summary of
the grounds for each opinion.” Id. Accordingly, the substantive
change in the rule altered the quantum and quality of the
disclosure requirement.
¶32 	Northgate’s 	expert 	disclosure 	states, 	“Based 	on 	work
location designations for each Greenfield invoice prepared by or
under the direction of [Northgate Employee], and associated
underlying documentation reviewed by the project supervisor,

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20160408-CA 	16 	2018 UT App 89
charges by Greenfield to Northgate for site remediation were
allocated 	by 	pit[.]” 	The 	disclosure 	explains 	that 	Expert 	1
“reviewed relevant documents contained in [his] files, met with
consulting 	engineers 	regarding 	boundaries 	for 	[the 	areas
outlined in the Clean-Up List] along with associated surface area
including required excavation ‘angles of repose.’” The disclosure
then explains how Expert 1 used both “[a] document prepared
by 	Greenfield 	. 	. 	. 	show[ing] 	a 	designation 	for 	each 	site
remediation cost invoice by ‘pit’” and “[a] second allocation
factor 	corresponding 	to 	surface 	areas 	from 	which 	material
volumes were moved.” These are not “cursory” or “vague”
descriptions as the City argues. See Dahl v. Dahl, 2015 UT 79,
¶¶ 80–81 	(affirming 	the 	trial 	court’s 	order 	limiting 	expert
testimony where, as grounds for his opinion, the expert cited his
“education, 	knowledge, 	training, 	and 	experience”). 	Instead,
Expert 1 explained that he used invoices, documents from the
excavation company, and a surface-area-allocation method to
calculate costs. It is wholly plausible from a plain reading of the
report that Expert 1, in forming his opinion, did not rely on the
“apportionment document” prepared by Northgate Employee—
the subject of the City’s principle objection. We therefore reject
the 	City’s 	argument 	and 	conclude 	that 	Expert 	1’s 	report
sufficiently stated a summary of the grounds Expert 1 applied to
arrive at his conclusions.7
¶33 	Similarly, we conclude that Expert 2’s report also satisfied
the 	pre-amendment 	disclosure 	standard. 	The 	district 	court
excluded Expert 2’s testimony based on its incorporation of
7. The district court also ruled that the experts’ declarations in
response to the City’s motion to exclude were a form of untimely
supplementation to the initial disclosures. We need not address
this because we conclude that the initial disclosures complied
with the rule. Therefore, no supplementation was necessary
under the 2009 rule to bring the disclosures into compliance.

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20160408-CA 	17 	2018 UT App 89
Expert 1’s report, which the court had determined was flawed.
Because we have determined that Expert 1’s disclosure satisfied
the pre-amendment disclosure standard, Expert 2’s reliance on
Expert 1’s report does not render Expert 2’s report inadmissible.
Consequently, we reverse the district court’s ruling excluding
Expert 2’s testimony.
¶34 	We conclude that the district court abused its discretion
by 	erroneously 	applying 	the 	post-amendment 	disclosure
standard. Further, we hold that Northgate’s disclosures satisfied
the pre-amendment standard.
CONCLUSION
¶35 	The district court abused 	its discretion by basing 	its
decision 	to 	exclude 	evidence 	under 	rule 	401 	on 	a
misinterpretation of this court’s prior decision in Northgate I. We
therefore reverse its rule 401 ruling. We also reverse the district
court’s rule 403 ruling because it applied the incorrect standard.
Finally, the district court abused its discretion by erroneously
applying the post-amendment disclosure rules when it excluded
the 	testimony 	of 	Northgate’s 	experts. 	Because 	Northgate’s
disclosures were sufficient under the pre-amendment rules, the
district court’s misapplication of the disclosure standard was not
harmless. Consequently, we reverse the court’s order excluding
the testimony of Northgate’s experts.
¶36 	Reversed and remanded.