Hansen v. Harper Excavating

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 180
_________________________________________________________
THE UTAH COURT OF APPEALS
JEFFREY HANSEN,
Plaintiff, Appellant, and Cross-appellee,
v.
HARPER EXCAVATING, INC. AND STACY HENDERSON,
Defendants, Appellees, and Cross-appellants.
Opinion
No. 20130163-CA
Filed July 31, 2014
Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 070907873
April L. Hollingsworth, Attorney for Appellant
and Cross-appellee
Ryan B. Hancey, Adam L. Grundvig, Scott S.
Bridge, and Joseph C. Rust, Attorneys for
Appellees and Cross-appellants
SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in
which JUDGES J. FREDERIC VOROS JR. and MICHELE M.
CHRISTIANSEN concurred.1
BENCH, Senior Judge:
¶1 Jeffrey Hansen appeals from the district court’s order
granting summary judgment in favor of Harper Excavating, Inc.
(Harper) and Stacy Henderson (collectively, Defendants). Hansen
argues that the district court erroneously determined that his

Hansen v. Harper Excavating
20130163-CA 2 2014 UT App 180
claims required expert medical testimony regarding the cause of
his injuries. We affirm.
BACKGROUND
¶2 In November 2003, Harper hired Hansen. In the first few
days of his employment, Hansen submitted application forms to
enroll in the health insurance plans offered by Harper. However,
in February 2004, Hansen noticed that health insurance premiums
were not being deducted from his paychecks, and he so informed
Henderson, who was Harper’s benefits coordinator. Henderson
gave Hansen a second set of enrollment forms for him to complete,
which he did in March 2004. At this point, insurance premiums
began to be deducted from his paychecks, paying for coverage
retroactive to the beginning of February 2004. Premiums continued
to be deducted until Hansen quit working for Harper toward the
end of April 2004.
¶3 Just weeks later, in May 2004, Hansen sought medical
attention for breathing problems and discovered that he did not
have health insurance. Hansen contacted Harper and was told he
had no health insurance coverage. Harper sent Hansen a copy of a
letter Harper had received from its insurer in mid-March 2004,
declining Hansen’s insurance application due to its untimely
submission. Harper also sent Hansen a check to reimburse him for
the amounts deducted from his paychecks as health insurance
premiums.
¶4 Shortly thereafter, in early June 2004, Hansen went to the
hospital seeking treatment for back pain. To help diagnose the back
problem, the hospital recommended Hansen get an MRI, which he
could not afford without insurance, and the hospital refused to
admit him without insurance. But the pain continued over the next
few weeks and eventually caused Hansen to be taken via
ambulance to the hospital. The hospital admitted Hansen and
performed an MRI, which led to the diagnosis of a staph infection
in his spine. Hansen remained in the hospital for several days and

Hansen v. Harper Excavating
2. On appeal Hansen presents no argument contesting the district
court’s denial of his request for leave to designate expert witnesses.
20130163-CA 3 2014 UT App 180
stayed in a convalescent center for several weeks thereafter, but
was still left with permanent back injuries after his recovery.
¶5 In November 2005, Hansen filed a lawsuit in federal court
against Harper under the Employee Retirement Income Security
Act. Hansen was successful in that lawsuit, and Harper was
required to pay Hansen’s medical bills. In the course of that
litigation, Hansen discovered new information underlying his
insurance situation, which prompted him to bring the negligence
claims of this case in state court. Also during the pendency of the
federal case, Hansen lost his sight in one eye, which he alleges was
due to his inability to pay for laser surgery that would have treated
his glaucoma and saved his sight. Hansen further claims that his
mental health has deteriorated due to his lack of insurance and the
problems flowing from it, and that he now suffers from chronic
depression.
¶6 Defendants first moved for summary judgment on res
judicata and judicial estoppel grounds, and the district court
denied their motion. Later, Defendants moved for summary
judgment on the ground that the discovery deadline had passed for
identifying expert witnesses and Hansen had failed to identify any
expert witnesses to show causation. Hansen argued that expert
testimony was not necessary, pointing out that several of his
treating physicians had been identified as fact witnesses during
discovery. Hansen alternatively requested leave to designate expert
witnesses should the district court determine that such witnesses
were necessary to prove causation. The district court determined
that expert testimony was necessary under the facts of this case,
denied Hansen’s request for leave to designate expert witnesses,
and granted summary judgment in favor of Defendants. Hansen
appeals the entry of summary judgment.2

Hansen v. Harper Excavating
20130163-CA 4 2014 UT App 180
ISSUE AND STANDARD OF REVIEW
¶7 Hansen challenges the district court’s grant of summary
judgment in favor of Defendants. “‘Because summary judgment is
a conclusion of law, we give no deference to the trial court’s
conclusions of law but review those conclusions for correctness.’”
Kent v. Pioneer Valley Hosp., 930 P.2d 904, 906 (Utah Ct. App. 1997)
(quoting Dalley v. Utah Valley Reg’l Med. Ctr., 791 P.2d 193, 195
(Utah 1990)).
ANALYSIS
I. The Summary Judgment Standard
¶8 Hansen initially argues that summary judgment was
inappropriate because Defendants “fail[ed] to provide facts to
suggest their conduct did not cause Mr. Hansen’s injuries.”
However, such a showing by Defendants is not necessary. Because
Hansen would bear the burden of proof at trial, Defendants “may
satisfy [their] burden on summary judgment by showing, by
reference to ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ that
there is no genuine issue of material fact.” Orvis v. Johnson, 2008 UT
2, ¶ 18, 177 P.3d 600 (quoting Utah R. Civ. P. 56(c)). “Upon such a
showing, whether or not supported by additional affirmative factual
evidence, the burden then shifts to [Hansen], who . . . ‘must set forth
specific facts showing that there is a genuine issue for trial.’” See id.
(emphasis added) (quoting Utah R. Civ. P. 56(e)).
¶9 Hansen’s complaint alleged that due to Defendants’
misconduct he was unable to obtain necessary medical care, which
caused him damage to his back, his sight, and his mental health.
“Causation is a highly fact-sensitive element of any cause of action.
. . . To establish causation, plaintiffs must persuade a fact finder
that their injury was a natural result of the defendant’s breach.”
Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1292 (Utah Ct.
App. 1996). “‘[T]he causal connection between the alleged
negligent act and the injury is never presumed and . . . this is a

Hansen v. Harper Excavating
20130163-CA 5 2014 UT App 180
matter the plaintiff is always required to prove affirmatively.’” Fox
v. Brigham Young Univ., 2007 UT App 406, ¶ 21, 176 P.3d 446
(alteration and omission in original) (quoting Jackson v. Colston, 209
P.2d 566, 568 (Utah 1949)). “‘[T]he trial court may rule as a matter
of law on this issue . . . if . . . there is no evidence to establish a
causal connection, thus leaving causation to jury speculation.’” Id.
(omissions in original) (quoting Clark v. Farmers Ins. Exch., 893 P.2d
598, 601 (Utah Ct. App. 1995)). Defendants’ motion for summary
judgment referenced the relevant pleadings, depositions, and
answers to interrogatories in the record to show that expert
testimony is required to establish causation in this case and that
Hansen has not provided this evidence. Therefore, Defendants
have met their summary judgment burden.
II. The Necessity of Expert Testimony
¶10 Hansen argues that expert testimony is not necessary to
prove causation here.
In Utah, “[t]he need for positive expert testimony to
establish a causal link between the defendants’
negligent act and the plaintiff’s injury depends on the
nature of the injury.” Thus, “[w]here the injury
involves obscure medical factors which are beyond
an ordinary lay person’s knowledge, necessitating
speculation in making a finding, there must be expert
testimony that the negligent act probably caused the
injury.” . . . It is only in “the most obvious cases” that
a plaintiff may be excepted from the requirement of
using expert testimony to prove causation.
Fox v. Brigham Young Univ., 2007 UT App 406, ¶ 22, 176 P.3d 446
(alterations in original) (quoting Beard v. K-Mart Corp., 2000 UT
App 285, ¶ 16, 12 P.3d 1015).
¶11 Hansen asserts that “causation is obvious when a party
causes another to be unable to adequately treat his medical
conditions.” However, there must be evidence indicating that the
inability to get treatment resulted in the injuries of which Hansen

Hansen v. Harper Excavating
3. Hansen also states that due to his lack of insurance he was
unable to afford the eye drops prescribed for his glaucoma. But he
also states that this is “beside the point” and that his theory of
liability is based on the inability to obtain the recommended
surgery.
20130163-CA 6 2014 UT App 180
complains. We are not convinced that this connection is within the
ordinary lay person’s knowledge and can be made without expert
testimony. Simply because certain treatment had been
recommended does not establish that such treatment would have
been successful in avoiding, or even mitigating, the injuries that
arose without treatment. Thus, Hansen needed to present evidence
from which the jury could find, without speculation, that he would
have avoided his injuries had he received the recommended
treatment.
¶12 For example, Hansen claims that the actions of Defendants
led to his permanently damaged back because without insurance
he was unable to get an MRI or be admitted to the hospital when
he sought medical attention in early June 2004. When Hansen
ultimately did get an MRI and was admitted to the hospital later
that month after returning to the hospital with more extreme back
pain, he was diagnosed with a staph infection in his spine and
began recovery from this infection. But it is not within an ordinary
lay person’s knowledge as to whether the infection was present
when Hansen first started feeling back pain, whether an MRI at
that early date would have led to earlier diagnosis, whether the
type of injury sustained is likely a result of the spinal infection, or
whether earlier commencement of treatment would likely have
prevented any portion of the damages to Hansen’s back.
¶13 Hansen similarly claims that Defendants’ actions ultimately
resulted in his blindness in one eye. Hansen suffered from
glaucoma and argues that due to his lack of insurance he was
unable to get the recommended surgical procedure on his eye.3
However, it is not within an ordinary lay person’s knowledge as to
the specifics or severity of glaucoma, the procedure recommended
here, or the likelihood of whether, considering the normal

Hansen v. Harper Excavating
4. Rule 26 was amended in 2011, but these amendments are only
applicable to cases filed on or after November 1, 2011. See Utah R.
Civ. P. 1 advisory comm. note (“Due to the significant changes in
the discovery rules, the 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.”). We therefore cite the version
(continued...)
20130163-CA 7 2014 UT App 180
progression of the disease prior to Defendants’ actions, Hansen
would have been able to maintain his sight in his eye had the
procedure been done at the time it was recommended.
¶14 Hansen likewise claims that the lack of insurance caused
damages resulting from depression. We again are not convinced
that an ordinary lay person would have knowledge sufficient to
assess the cause of this injury. Depression is a complex ailment that
could conceivably stem from any one of or a combination of an
innumerable set of factors (including other challenges faced by
Hansen). An ordinary lay person would not know which factor or
factors likely caused Hansen’s depression and would therefore be
unable to determine, without speculation, whether Hansen would
have avoided his depression had he been covered by a health
insurance policy.
¶15 Thus, because the connection between Defendants’ actions
and Hansen’s injuries is not within the knowledge of an ordinary
lay person, Hansen needed to present expert testimony to establish
causation. Because he failed to designate any witnesses to provide
such testimony, judgment in favor of Defendants on his negligence
claims was appropriate as a matter of law.
III. Testimony of Treating Physicians
¶16 Hansen also argues that even if expert testimony is required
in this case, he may show causation through those physicians he
designated as fact witnesses. The applicable version of rule 26 of
the Utah Rules of Civil Procedure discusses different types of4

Hansen v. Harper Excavating
4. (...continued)
in effect prior to November 2011.
5. Rule 702 provides,
[A] witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if
the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue.
Utah R. Evid. 702(a). This is in contrast to opinion testimony
allowed by ordinary witnesses, which is specifically defined as
those opinions “not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Id. R. 701(c).
The opinion testimony Hansen suggests he would elicit from his
treating physicians is based on specialized knowledge and would
fall within the scope of rule 702.
20130163-CA 8 2014 UT App 180
disclosures relating to witnesses. See Utah R. Civ. P. 26(a)(1)(A),
(a)(3)(A), (a)(3)(B) (2011). Subsection (a)(1) is titled “Initial
disclosures” and requires disclosure of “the name and, if known,
the address and telephone number of each individual likely to have
discoverable information supporting [a party’s] claims or
defenses.” Id. R. 26(a)(1)(A). Subsection (a)(3) is titled “Disclosure
of expert testimony” and requires further disclosures. Id. R.
26(a)(3). Subsection (a)(3)(A) states that “[a] party shall disclose to
other parties the identity of any person who may be used at trial to
present evidence under [r]ules 702, 703, or 705 of the Utah Rules of
Evidence.” Id. R. 26(a)(3)(A). And subsection (a)(3)(B) provides5
that generally “this disclosure shall, with respect to a witness who is
retained or specially employed to provide expert testimony in the case or
whose duties as an employee of the party regularly involve giving expert
testimony, be accompanied by a written report prepared and signed
by the witness or party.” Id. R. 26(a)(3)(B) (emphasis added). “Thus,
rule 26(a)(3) contemplates that all persons who may provide
opinion testimony based on experience or training will be
identified, but that only retained or specially employed experts are

Hansen v. Harper Excavating
6. The 2011 amendments to rule 26 “curb[] excessive expert
discovery,” see Utah R. Civ. P. 1 advisory comm. note, and give
more flexibility to how a party must provide notice that treating
physicians will provide expert testimony, see id. R. 26 advisory
comm. notes (“If a party has disclosed possible opinion testimony
in its Rule 26(a)(1)(A)(ii) disclosures, that party is not required to
prepare a separate [expert witness] disclosure for the witness.”).
But even under the amended version, a party must disclose the
(continued...)
20130163-CA 9 2014 UT App 180
required to also provide an expert report.” Pete v. Youngblood, 2006
UT App 303, ¶ 12, 141 P.3d 629.
¶17 Hansen is correct in his assertion that treating physicians do
not fall into the category of “retained or specially employed”
expert witnesses and that expert reports as mentioned in subsection
(a)(3)(B) are therefore not required for treating physicians who will
testify as experts. See Drew v. Lee, 2011 UT 15, ¶¶ 23–25, 250 P.3d
48. Nonetheless, treating physicians must still be disclosed as
expert witnesses under subsection (a)(3)(A) if they will “provide
opinion testimony based on [their] experience or training.” Pete,
2006 UT App 303, ¶ 12; see also Utah R. Civ. P. 26(a)(3)(A) (2011).
This court has previously held that naming a treating physician as
a fact witness does not satisfy the requirements of subsection
(a)(3)(A): “‘[T]reating physicians and treating nurses must be
designated as experts if they are to provide expert testimony.’”
Pete, 2006 UT App 303, ¶ 17 (quoting Musser v. Gentiva Health
Servs., 356 F.3d 751, 758 (7th Cir. 2004)). See generally id. (“Formal
disclosure of experts is not pointless. Knowing the identity of the
opponent’s expert witnesses allows a party to properly prepare for
trial. . . . The failure to disclose experts prejudiced [defendant]
because there are countermeasures that could have been taken that
are not applicable to fact witnesses, such as attempting to
disqualify the expert testimony . . . , retaining rebuttal experts, and
holding additional depositions to retrieve the information not
available because of the absence of a report.” (alteration and
omissions in original) (emphasis, citation, and internal quotation
marks omitted)). Thus, Hansen’s disclosure of his intent to call6

Hansen v. Harper Excavating
6. (...continued)
planned use of treating physicians to give expert testimony:
If a party intends to present evidence at trial under
Rule 702 of the Utah Rules of Evidence from any
person other than an expert witness who is retained
or specially employed to provide testimony in the
case or a person whose duties as an employee of the
party regularly involve giving expert testimony, that
party must serve on the other parties a written
summary of the facts and opinions to which the
witness is expected to testify in accordance with the
deadlines [for expert disclosure].
Id. R. 26(a)(4)(E); see also id. R. 26 advisory comm. notes (“[A] party
should receive advance notice if their opponent will solicit expert
opinions from a particular witness so they can plan their case
accordingly.”).
7. Because we affirm the grant of summary judgment in favor of
Defendants based on Hansen’s failure to establish a prima facie
case of negligence, we need not address Defendants’ cross-appeal,
which argued that the district court erred in refusing to grant an
alternate summary judgment motion based on res judicata and
judicial estoppel grounds.
20130163-CA 10 2014 UT App 180
treating physicians as fact witnesses is not sufficient to allow the
admission of their expert opinions, and Hansen remains without
any witnesses designated to give expert testimony as to causation.
CONCLUSION
¶18 We determine that Hansen’s negligence claims required
expert testimony supporting the causation element, that Hansen
did not designate any witnesses to provide such testimony, and
that the district court therefore did not err in granting summary
judgment in favor of Defendants due to Hansen’s failure. We
affirm.7