Anderson-Wallace v. Rusk

2021 UT App 10
THE UTAH C OURT OF APPEALS
MICHELLE A NDERSON-WALLACE ,
Appellee,
v.
K. LYNN R USK AND NEW P RIME INC .,
Appellants.
Opinion
No. 20190361-CA
Filed February 4, 2021
Second District Court, Ogden Department
The Honorable Mark R. Decaria
No. 160905589
Stuart H. Schultz, Peter H. Christensen, Marshall J.
Hendrickson, and S. Spencer Brown, Attorneys
for Appellants
Nathan S. Morris, Lena Daggs, and Zachary E.
Peterson, Attorneys for Appellee
J UDGE KATE A PPLEBY1 authored this Opinion, in which J UDGES
MICHELE M. C HRISTIANSEN FORSTER and D AVID N. MORTENSEN
concurred.
APPLEBY, Judge:
¶1 	K. 	Lynn 	Rusk 	(Rusk) 	and 	New 	Prime 	Inc. 	(Prime)
(collectively, 	Defendants) 	appeal 	from 	the 	jury’s 	verdict
awarding damages for the wrongful death of Kenneth Wallace
1. The Honorable Kate Appleby, began work on this case as an
active member of the Utah Court of Appeals. She completed her
work 	as 	a 	senior 	judge 	sitting 	by 	special 	assignment 	as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).

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(Wallace) to his wife, Michelle Anderson-Wallace (Plaintiff), and
his children. We reverse.
BACKGROUND
¶2 	Shortly after midnight on July 19, 2015, Wallace was
killed in a truck-pedestrian collision when he was struck in the
head by the mirror of a passing semi-truck driven by Rusk and
owned by her employer, Prime. Prior to the collision, the truck
was traveling in the right lane of the interstate freeway. As the
truck approached an exit, Rusk noticed “the flashing hazard
lights of a vehicle” parked on the right shoulder. In response,
she began to decelerate and attempted to move the truck into the
middle lane. Before she could do so, Wallace “bolt[ed]” from the
front end of the disabled vehicle, “running toward [Rusk’s]
vehicle” at an angle. Rusk “jerked the wheel hard to the left” to
avoid Wallace but “lost sight of him” and then “heard the
thump.”
¶3 	When law enforcement personnel arrived they found
Wallace’s body “lying on the fog line of the right shoulder.” An
autopsy identified the manner of death as suicide, caused by
blunt force injuries to his head “sustained when he intentionally
ran into oncoming traffic on the freeway.” It also revealed that
Wallace had a blood alcohol content (BAC) of 0.17 when he died.
¶4 	Plaintiff filed suit against Defendants, seeking damages
for Wallace’s wrongful death. She alleged the collision occurred
“at approximately the fog line on the right side” of the freeway
and 	therefore 	Rusk 	was 	driving 	negligently 	when 	she 	hit
Wallace. Defendants denied any fault, insisting the point of
impact was in the lane of travel and that Wallace’s own conduct,
not Rusk’s alleged negligence, caused his death.
¶5 	Defendants’ 	theory 	was 	that 	Wallace’s 	death 	was 	a
suicide. On the night of the collision, Plaintiff and Wallace
returned 	home 	from 	dinner 	at 	about 	10:30 	p.m. 	Sometime
between Wallace’s return from dinner and the time of the

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collision at about 12:10 a.m., Wallace consumed enough alcohol
to reach a 0.17 BAC, drove his car to the freeway, and stopped
on the right shoulder. To support their theory, Defendants
retained 	an 	accident 	reconstructionist, 	whose 	conclusions
corroborated 	eyewitness 	testimony 	that 	Wallace 	was 	inside
Rusk’s lane of travel at the time of the collision. Defendants also
retained an expert toxicologist (Expert) to testify about “the
effects [Wallace] is likely to have experienced [at the time of the
collision], based on the claim . . . that [Wallace] had a [BAC] of
0.17.”
¶6 	Plaintiff filed a motion in limine2 seeking to exclude any
“evidence, testimony or reference to alcohol use by [Wallace]”
and to exclude Expert from testifying at trial. She argued the
evidence 	should 	be 	excluded 	because 	it 	is 	“irrelevant,
completely speculative, and because its probative value, if any, is
substantially 	outweighed 	by 	the 	danger 	of 	unfair 	prejudice
pursuant to Rule 403 of the Utah Rules of Evidence.”
¶7 	Defendants opposed the motion in limine. They argued
that evidence of Wallace’s BAC was not only relevant, but
probative because “it answers an essential question . . . whether
[Wallace] entered the lanes of travel before encountering the
truck,” and thus whether Wallace’s death was caused by his own
negligence 	and 	not 	Rusk’s 	alleged 	negligent 	driving. 	They
further argued that Expert’s testimony would help the jury
understand “the circumstances affecting Wallace at the time of
his death,” including the effects Wallace’s BAC “would have had
over his conduct and decision-making capacity leading up to
and at the time of” his death. Although Expert had conceded in
his deposition that he was unable to describe exactly how
Wallace’s inebriation affected his ability to walk or run, Expert
2. “A motion in limine is a procedure for obtaining a ruling on
the admissibility of evidence prior to or during trial, but before
the evidence has been offered.” State v. Bermejo, 2020 UT App
142, ¶ 8 n.4, 476 P.3d 148 (quotation simplified).

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was unequivocal that Wallace’s judgment and thought processes
would have been altered or impaired, his inhibitions would have
been 	“removed,” 	and 	he 	would 	not 	have 	been 	normally
coordinated.
¶8 	The district court granted Plaintiff’s motion, excluding all
evidence of Wallace’s BAC and Expert’s testimony. It ruled that
although relevant, the evidence “invites too much speculation on
the part of the jury, so its probative value is outweighed by the
danger of unfair prejudice.” The court concluded that there was
a substantial risk the jury would find the decedent negligent just
because he had been drinking.
¶9 	Defendants also filed a motion in limine. They sought to
prevent Plaintiff from presenting any evidence of economic
damages3 because she did not disclose them during discovery.
The district court granted the motion to exclude evidence of
economic damages and instructed the jury that it "may calculate
damages for the loss of such things as love, companionship,
society, comfort, pleasure, advice, care, protection and affection
which the [Plaintiff and the children] have sustained and will
sustain in the future.” The special verdict form also listed the
type of damages the jurors could consider. It asked them to
determine “[w]hat amount fairly compensates [Plaintiff and the
children] for the loss of love, companionship, society, care,
protection and affection of [Wallace].” Neither the instructions
nor 	the 	verdict 	form 	suggested 	that 	the 	jury 	could 	award
damages to compensate Plaintiff for Wallace’s lost wages or loss
of future earning capacity or support.
3. Economic damages “are hard amounts that are subject to
careful 	calculation 	such 	as 	the 	cost 	of 	medical 	and 	other
necessary care or a decrease in earning ability.” Pinney v. Carrera,
2020 UT 43, ¶ 35, 469 P.3d 970 (quotation simplified). In contrast,
noneconomic 	damages 	“measure 	the 	amount 	needed 	to
compensate an individual for a diminished capacity for the
enjoyment of life.” Id. ¶ 36 (quotation simplified).

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¶10 	All parties agreed the primary liability question for the
jury was whether Wallace “died as a result of running out into
the lane of travel or whether the collision occurred on the
shoulder.” Plaintiff argued that Wallace was a “meticulous and
prepared person” and there was nothing in his “history that
might indicate that [he] was the type [who] would run out into
the lane of travel.” Plaintiff’s counsel told the jury they would be
abandoning their common sense if they concluded Wallace ran
into traffic.
¶11 	In 	contrast, 	Defendants’ 	theory 	of 	the 	case 	was 	that
Wallace’s death was a suicide but he “wanted it to look like an
accident.” In Defendants’ view, Wallace had a serious alcohol
problem and his high BAC at the time of the collision explained
why his coordination, judgment, and inhibitions were lowered,
and 	why 	he 	darted 	in 	front 	of 	the 	approaching 	truck.
Additionally, Defendants believed Wallace’s habitual drinking—
which they wanted to show caused trouble in his home life—
provided a motive for suicide and also was relevant to Plaintiff’s
claim for non-economic damages.
¶12 	Defendants were hampered in presenting their theory of
the case to the jury by the district court’s decision to exclude all
evidence of Wallace’s alcohol problems and his BAC at the time
of 	the 	collision. 	But 	Defendants 	nevertheless 	attempted 	to
present 	their 	suicide 	theory 	at 	trial, 	arguing 	that 	Wallace
deliberately ran in front of the approaching truck and the impact
occurred in Rusk’s lane of travel. They also presented evidence
of Wallace’s financial difficulties and obtained a jury instruction
suggesting his vehicle was not actually disabled when he pulled
over and parked on the shoulder of the freeway shortly before
the collision.
¶13 	The special verdict form asked the jury to determine
which of the parties were at fault for the collision and to
apportion 	fault 	among 	all 	responsible 	parties. 	Following 	a
multiday trial, the jury apportioned 55% fault to Rusk, 20% to
Prime, and 25% to Wallace. It awarded total non-economic

Anderson-Wallace v. Rusk
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damages in the amount of $2.5 million. After deducting 25% of
the award based on the jury’s allocation of fault to Wallace,
Plaintiff and Wallace’s two surviving children collectively were
awarded $1.875 million in damages.
ISSUES AND STANDARDS OF REVIEW
¶14 	Defendants 	first 	argue 	the 	district 	court 	erred 	by
excluding evidence of Wallace’s alcohol use and his BAC at the
time of his death. We review a district court’s decision to exclude
evidence under rule 403 for abuse of discretion. Northgate Vill.
Dev., LC v. City of Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117. But “an
erroneous decision to admit or exclude evidence based on rule
403 cannot result in reversible error unless the error is harmful.”
State v. Hamilton, 827 P.2d 232, 240 (Utah 1992).
¶15 	Defendants also argue the district court erred by allowing
Plaintiff’s counsel to raise during closing argument Wallace’s
lost earning capacity. Because “[t]he determination of whether
remarks made during closing argument improperly influenced
the verdict is within the sound discretion of the [district] court,”
Green v. Louder, 2001 UT 62, ¶ 35, 29 P.3d 638, we will not
overturn such a decision absent an abuse of discretion.
ANALYSIS
I. Evidence of Wallace’s Blood Alcohol Content and Alcohol Use
Was Admissible Under Rule 403 of the Utah Rules of Evidence.
¶16 	Defendants argue the district court committed reversible
error when it excluded evidence of Wallace’s struggle with
alcohol and his BAC at the time of his death under rule 403 of
the Utah Rules of Evidence. They contend the court erred in
concluding the evidence was more prejudicial than probative
and assert they were prejudiced by the exclusion because they
could not use the evidence to explain why Wallace ran in front of

Anderson-Wallace v. Rusk
20190361-CA 	7 	2021 UT App 10
the truck, bolster eye-witness testimony placing Wallace in the
lane of travel, or rebut Plaintiff’s testimony “about Wallace’s
virtues as a husband and father.”
¶17 	The district court granted Plaintiff’s motion in limine to
exclude 	Expert 	and 	evidence 	of 	Wallace’s 	alcohol 	abuse,
including evidence of his BAC when he died. Although the court
found the evidence relevant, it nevertheless excluded it under
rule 403, finding that any probative value was substantially
outweighed by the risk of unfair prejudice. The court reasoned
the evidence “invites too much speculation on the part of the
jury” because there was “no evidence of how [Wallace] was
affected by alcohol.” The court also noted that because “[s]ome
Utahns disapprove of alcohol use," there was a “high risk” the
jury would find Wallace negligent just "because he had been
drinking.”
¶18 	Under rule 403 of the Utah Rules of Evidence, a court
“may 	exclude 	relevant 	evidence 	if 	its 	probative 	value 	is
substantially outweighed by a danger of . . . unfair prejudice.”
See 	Utah 	R. 	Evid. 	403. 	“Because 	all 	effective 	evidence 	is
prejudicial in the sense of being damaging to the party against
whom it is offered,” rule 403 does not require a court to exclude
all prejudicial evidence. State v. Burke, 2011 UT App 168, ¶ 34,
256 P.3d 1102 (quotation simplified). “Rather, the rule only
requires that the [district] court measure the danger the evidence
poses of causing unfair prejudice to a defendant. Unfair prejudice
within the context of rule 403 means an undue tendency to
suggest 	decision 	on 	an 	improper 	basis.” 	Id. 	(quotation
simplified).
¶19 	To determine whether the district court erred in excluding
the alcohol evidence, we first must review its probative value.
“The probative value of evidence is judged by the strength of the
evidence and its ability to make the existence of a consequential
fact either more or less probable and the proponent’s need for
the evidence.” State v. Johnson, 784 P.2d 1135, 1140 (Utah 1989)

Anderson-Wallace v. Rusk
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(quotation simplified). Under this standard, the evidence was
highly probative.
¶20 	All parties agreed the primary liability question for the
jury was whether Wallace “died as a result of running out into
the lane of travel or whether the collision occurred on the
shoulder.” 	Because 	the 	liability 	determination 	turned 	on
Wallace’s conduct at the time of the collision, evidence of his
BAC was highly probative because the BAC data allowed Expert
to reach conclusions about how this level of alcohol directly
influenced Wallace’s conduct. Expert was prepared to testify that
based 	on 	Wallace’s 	0.17 	BAC 	he 	was 	“likely 	experiencing
emotional-swings, blunted feelings, disinhibition, gross and fine
motor control impairment, and slurred speech.” Thus, Wallace’s
elevated BAC had direct bearing on why Wallace may have been
in the lane of travel rather than on the shoulder at the time of the
collision, either because his judgment was likely clouded or his
natural inhibition against suicide may have been blunted. Such
information also is consistent with the eyewitness testimony that
Wallace ran into the path of the oncoming truck and provides an
explanation or motive for Wallace’s behavior that night. Finally,
the evidence that Wallace had consumed enough alcohol to
cause him to have an elevated BAC at the time of the collision
directly rebutted Plaintiff’s testimony that running into the lane
of travel “doesn’t sound like something [Wallace] would do.”
¶21 	Expert was questioned extensively during his deposition
as to the effect of a 0.17 BAC. He testified as follows:
Q: . . . I understand that you believe he was not fit
to drive there, but once he’s there, do you have any
opinion as to how the alcohol affected or impacted
this overall accident?
A: Well, certainly his judgment isn’t going to be
what 	it 	was 	when 	he 	was 	sober, 	his 	thought
processes aren’t going to be what they were, he’s
removed the social brakes, you’ve removed the

Anderson-Wallace v. Rusk
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part of us, I guess, that would make us interact,
you know, in a civil fashion. He’s not going to be
as 	coordinated 	most 	certainly, 	he 	might 	be
nauseous, he might throw up. I don’t believe there
was any evidence of that at the crime scene.
How his, you know, inability–not inability, but to
walk, to run, how that might affect this situation,
I’m not—it would be impaired. Whether that made
any difference or not in the end, I don’t—
Q: You don’t know?
A: I don’t know.
Q: That would require speculation in that respect?
A: In that respect, yeah.
Although Expert was unable to articulate exactly how Wallace’s
inability to walk or run played a role in the collision, nothing
suggests that the broader effect of Wallace’s 0.17 BAC was
uncertain. Expert testified without equivocation that Wallace’s
judgment was “certainly” diminished and his high BAC would
have impaired his thought processes and his coordination. The
fact that Expert was not able to articulate the precise manner in
which Wallace’s certain impairment caused the collision did not
deprive the evidence of its probative value in a case where the
jury 	was 	asked 	to 	apply 	a 	preponderance 	of 	the 	evidence
standard. Neither did it undermine the probative value of the
evidence 	as 	to 	Wallace’s 	lack 	of 	judgment 	and 	general
impairment or to Defendant’s theory that the collision was a
suicide.
¶22 	Wallace’s 	history 	of 	alcohol 	abuse 	also 	was 	highly
probative on the issue of Plaintiff’s damages. Plaintiff sought
non-economic damages for herself and the children for the loss

Anderson-Wallace v. Rusk
20190361-CA 	10 	2021 UT App 10
of Wallace’s “love, companionship, society, care, protection and
affection.” Her damages claim therefore depended on the quality
of the relationship the Wallace family shared. Plaintiff testified to
a harmonious family life. But Defendants obtained Plaintiff’s
Facebook posts that, in their view, painted a different picture. In
Defendants’ estimation, the posts indicated that Wallace had a
drinking 	problem 	and 	was 	attempting 	to 	save 	money 	for
addiction treatment, and Defendants planned to use the posts to
directly impeach Plaintiff’s damages testimony. While we accept
that a history of common casual consumption of alcohol may be
of such small consequence that evidence of such consumption
might be well within the discretion of a trial court to exclude,
where claims of extensive abuse and its effects on intrafamilial
relationships can be shown or inferred, the history of alcohol use
becomes far more probative. See Marlow v. Cerino, 313 A.2d 505,
515 (Md. Ct. Spec. App. 1974) (claim for loss of consortium by
spouse “placed squarely in issue the nature and details of the
relationship” and how the alcoholism evidence affected spouse’s
claim for damages).
¶23 	Having 	concluded 	that 	the 	excluded 	evidence 	of
Wallace’s 	BAC 	and 	history 	of 	alcohol 	abuse 	was 	highly
probative as to both liability and damages, we turn to the second
step 	of 	our 	rule 	403 	analysis. 	This 	involves 	balancing 	its
probative value against its potential for unfair prejudice. See
State v. Downs, 2008 UT App 247, ¶ 11, 190 P.3d 17. The type of
prejudicial evidence that “calls for exclusion” is evidence that
creates “an undue tendency to suggest decision on an improper
basis, commonly but not necessarily an emotional one, such as
bias, sympathy, hatred, contempt, retribution or horror.” State v.
Maurer, 770 P.2d 981, 984 (Utah 1989) (quotation simplified). In
short, it is evidence that “may cause the jury to base its decision
on something other than the established propositions of the
case.” State v. Lindgren, 910 P.2d 1268, 1272 (Utah Ct. App. 1996)
(quotation simplified).
¶24 	Though 	the 	evidence 	of 	Wallace’s 	alcohol 	use 	was
damaging to Plaintiff’s theory of the case, the prejudicial nature

Anderson-Wallace v. Rusk
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of that evidence did not substantially outweigh the probative
value of that evidence. Rather, evidence of Wallace’s high BAC
and 	resulting 	effect 	was 	damaging 	precisely 	because 	such
evidence was highly probative of the very questions the jury was
required to decide. The excluded evidence made it more likely
that Wallace ventured into the highway before being struck by
the truck. The evidence of Wallace’s consumption of alcohol on
the night of the accident and his habitual use also bore directly
on the question of damages. Where evidence is undeniably
probative of the central issue in a case, the danger of unfair
prejudice substantially outweighing the probative value of the
evidence is low. Here, while we recognize the prejudicial effect
of this evidence in that the jury may have thought less of
Wallace, we do not believe information about Wallace’s BAC at
the time of the accident or his struggle with alcohol would have
aroused the jury’s emotions or caused it to “base its decision on
something other than the established propositions of the case.”
See id. (quotation simplified); see also Colley v. Peacehealth, 312
P.3d 989, 998 (Wash. Ct. App. 2013) (“While prejudice always
clings to alcohol abuse to some degree, the trial court could
reasonably 	conclude 	that 	the 	evidence 	of 	Colley's 	heavy
consumption of alcohol in the past had probative value that
outweighed 	the 	prejudice.”). 	In 	short, 	the 	danger 	of 	unfair
prejudice 	does 	not 	substantially 	outweigh 	the 	evidence’s
probative value.
¶25 	We conclude the district court exceeded its discretion by
focusing 	on 	the 	alcohol 	evidence’s 	potential 	for 	prejudice
without 	considering 	or 	correctly 	appreciating 	its 	highly
probative value. See generally Woods v. Zeluff, 2007 UT App 84,
¶ 8, 158 P.3d 552 (“The exclusion of relevant evidence under
Rule 403 is an extraordinary remedy to be used sparingly.”
(quotation simplified)). Indeed, the district court appeared to
focus exclusively on the damage the evidence may have on
Plaintiff’s 	case 	without 	balancing 	it 	against 	the 	damage 	its
exclusion would cause to Defendants’ theory of the case. This
was error because rule 403 analysis requires that the evidence be
viewed “in the light most favorable to its proponent, maximizing

Anderson-Wallace v. Rusk
20190361-CA 	12 	2021 UT App 10
its probative value and minimizing its prejudicial effect.” Id.
(quotation simplified).
¶26 	Plaintiff argues the district court properly excluded the
alcohol evidence because it “invite[d] too much speculation from
the jury.” It is unclear from the district court’s ruling whether the
possibility of speculation constituted an independent ground for
its exclusion of the evidence or simply an explanation as to why
it believed the evidence was more prejudicial than probative. But
if it were an independent ground for exclusion, the court's
decision to exclude evidence on that basis was also erroneous.
Wallace’s autopsy revealed that at the time of the collision he
had a 0.17 BAC. Expert’s opinion about Wallace’s condition at
the time of the collision was based on this uncontested finding
and thus was not speculation.
¶27 	Accordingly, we conclude that the trial court exceeded its
discretion in excluding both types of alcohol evidence—evidence
of use (the BAC) on the night in question (liability) and evidence
of Walace’s alcohol use in general (wrongful death damages).4
Although Expert was unable to articulate exactly how Wallace’s
impaired coordination played a role in the collision, nothing
suggests the broader effect of Wallace’s 0.17 BAC required
speculation. Expert testified without equivocation that Wallace’s
judgment was “certainly” diminished and that his high BAC
would 	have 	impaired 	his 	thought 	processes 	and 	his
coordination.
¶28 	Standing alone, the district court’s erroneous decision to
exclude the alcohol evidence under rule 403 does not warrant
4. In the appropriate case, a court might be required to give a
jury a limiting 	instruction. For example, where the alcohol
evidence 	only 	is 	probative 	regarding 	its 	effect 	on 	family
relationships, a limiting instruction would inform the jury that
that same evidence could not be considered on the issue of
liability.

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reversal. 	Reversal 	is 	warranted 	only 	where 	the 	erroneous
evidentiary 	ruling 	is 	harmful, 	meaning 	that 	“absent 	the
erroneous 	exclusion, 	there 	is 	a 	reasonable 	likelihood 	of 	an
outcome more favorable to [its proponent].” Id. ¶ 10 (quotation
simplified).
¶29 	In 	this 	case, 	the 	erroneous 	exclusion 	of 	the 	alcohol
evidence and Expert's testimony was harmful to Defendants on
issues of both liability and damages. As previously discussed,
the alcohol evidence was the lynchpin of Defendants’ theory
regarding the cause of the collision and explained why Wallace
entered the lane of travel. Indeed, having convinced the trial
court here to exclude the BAC evidence, Plaintiff’s counsel then
argued to the jury that Wallace was a “meticulous and prepared
person” 	and 	there 	was 	nothing 	in 	his 	“history 	that 	might
indicate that [he] was the type [who] would run out into the lane
of travel.” Plaintiff’s counsel then told the jury they would be
abandoning their common sense if they concluded Wallace ran
into traffic. Of course, significant alcohol consumption might
explain the lapse of judgment. The BAC evidence was therefore
highly probative regarding apportionment of fault. Although the
district court excluded any evidence of Wallace’s high BAC at
the time of the collision, the jury nevertheless apportioned
25% fault to Wallace, likely based on the suggestion of Plaintiff’s
counsel that Wallace was standing too close to the fog line. There
is a reasonable likelihood that the jury would have apportioned
at least some additional fault to Wallace had it been aware that
he had consumed enough alcohol for him to reach a 0.17 BAC
and the effect that his BAC would have had on his judgment and
thought processes. In short, we conclude there would have been
a 	reasonable 	likelihood 	of 	a 	more 	favorable 	outcome 	for
Defendants on the liability issue if the alcohol evidence had been
admitted.
¶30 	Exclusion of the alcohol evidence was equally harmful to
Defendants 	in 	defending 	against 	Plaintiff’s 	claim 	for 	non-
economic damages. Plaintiff capitalized on the district court’s
exclusion of the alcohol evidence by painting a picture of an

Anderson-Wallace v. Rusk
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idyllic home life that Defendants were hamstrung in refuting.5 It
is reasonable to conclude the jury would have agreed on a lower
award of non-economic damages had it been aware of Wallace’s
habitual 	drinking 	and 	its 	adverse 	effect 	on 	his 	family
relationships.
¶31 	Because 	we 	find 	that 	the 	erroneous 	exclusion 	of 	the
evidence was harmful, we vacate the jury’s verdict and remand
the matter for a new trial.
II. Plaintiff’s Counsel’s Comments About Wallace’s Earning
Capacity During Closing Argument Were Not Improper.
¶32 	Defendants also argue the district court erred when it
allowed Plaintiff's counsel to raise Wallace’s lost future earnings
in her closing argument. Defendants contend this was improper
because it “confused the jury” and called to its attention facts
about Wallace’s earning capacity that were “not in evidence and
not relevant to any claim before the jury.” Because we have
determined that Defendants are entitled to a new trial, we
address this issue only to guide the district court should the
issue arise again on remand.
¶33 	“In 	closing 	argument, 	attorneys 	have 	considerable
latitude concerning the issues they raise and have the right to
fully 	discuss 	from 	their 	perspectives 	the 	evidence 	and 	all
inferences and deductions it supports.” State v. Reid, 2018 UT
App 146, ¶ 49, 427 P.3d 1261 (quotation simplified). “However,
that 	latitude 	does 	not 	extend 	to 	counsel 	calling 	the 	jury’s
attention to material that the jury would not be justified in
5. 	The 	district 	court 	acknowledged 	the 	family 	dysfunction
resulting 	from 	Wallace’s 	alcohol 	use 	was 	“fair 	game” 	for
Defendants, but nevertheless excluded any evidence of Wallace’s
habitual drinking after Plaintiff’s counsel argued that admitting
the evidence “would just ruin everything.”

Anderson-Wallace v. Rusk
20190361-CA 	15 	2021 UT App 10
considering in its verdict.” Boyle v. Christensen, 2011 UT 20, ¶ 18,
251 P.3d 810 (quotation simplified).
¶34 	Before trial, the district court granted Defendants’ motion
to exclude evidence of Plaintiff’s economic damages, and the
jury 	instructions 	and 	special 	verdict 	form 	stated 	that
compensable 	damages 	were 	those 	designed 	to 	compensate
Plaintiff for the loss of Wallace’s “love, companionship, society,
care, 	protection 	and 	affection.” 	Plaintiff 	complied 	with 	the
court’s ruling and did not introduce such evidence. But in
closing argument, Plaintiff’s counsel told the jury it should not
“penalize” Plaintiff because Wallace “only made $19 an hour,
$20 an hour, and over the next 20 years would have made about
$800,000.” 	Defendants 	objected 	there 	was 	“no 	evidence” 	of
Wallace’s future income, but the district court overruled the
objection and Plaintiff’s counsel continued, comparing Wallace’s
hourly 	rate 	with 	that 	of 	one 	of 	Defendants’ 	experts 	and
explaining that Wallace’s income “is no indication” of what his
family members “are entitled to in this case.”
¶35 	We 	see 	no 	error 	here. 	Plaintiff’s 	counsel 	made 	the
argument 	in 	response 	to 	evidence 	that 	Defendants 	offered
during trial. It was Defendants who opened the door by offering
evidence of Wallace’s hourly wage, limited earning capacity, and
Plaintiff’s 	corresponding 	financial 	problems. 	In 	opening
statement, Defendants’ counsel told the jury it would hear about
Wallace’s employment, that he “was making about 19 to $20 an
hour” and that the collision occurred during a time of year when
work 	was 	“very 	slow” 	for 	him. 	During 	Plaintiff’s 	cross-
examination, Defendants’ counsel specifically asked whether
Wallace’s “regular hourly rate was about $19,” whether Wallace
was “guaranteed 40 hours a week,” and whether “finances were
a struggle” for the family. Finally, Defendants’ counsel elicited
testimony from a responding officer that when informed about
Wallace’s death, Plaintiff mentioned Wallace “had not been in a
good financial state.”

Anderson-Wallace v. Rusk
20190361-CA 	16 	2021 UT App 10
¶36 	Based 	on 	the 	foregoing, 	the 	arguments 	raised 	by
Plaintiff’s counsel during closing argument regarding Wallace’s
future 	earning 	capacity 	were 	not 	improper. 	The 	statements
relied on evidence offered by Defendants and were made in
response to arguments raised by Defendants in the first instance.
The jury instructions and the special verdict form expressly
limited the jury’s consideration to non-economic damages, and
nothing in the record suggests that the jury disregarded those
instructions.
CONCLUSION
¶37 	The district court erred in excluding evidence of Wallace’s
alcohol use and Expert's testimony under rule 403 of the Utah
Rules of Evidence because the significant probative value of the
evidence was not substantially outweighed by its potential for
unfair prejudice. Because this error was harmful, we vacate the
jury’s verdict and remand the case for a new trial.
¶38 	Reversed.