Turpin v. Valley Obstetrics and Gynecology

2021 UT App 12
THE UTAH COURT OF APPEALS
BRITTNEY TURPIN ,
Appellee,
v.
VALLEY O BSTETRICS AND GYNECOLOGY , BRIAN L. WOLSEY ,
JENNIFER BOOTH , AND S COTT S. R EES,
Appellants.
Opinion
No. 20200015-CA
Filed February 11, 2021
Fourth District Court, Spanish Fork Department
The Honorable Jared Eldridge
No. 180300203
Jaryl L. Rencher and Benjamin Lusty, Attorneys
for Appellants
John M. Macfarlane, Richard Eric Shelton, and
P. McKay Corbett, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGE DIANA H AGEN and S ENIOR JUDGE K ATE A PPLEBY
concurred.1
POHLMAN, Judge:
¶1 	Brittney Turpin discovered she had ovarian cancer after
undergoing 	surgery 	for 	what 	her 	doctors 	diagnosed 	as 	an
ovarian cyst. Turpin filed a medical malpractice action against
Valley 	Obstetrics 	and 	Gynecology; 	Brian 	L. 	Wolsey, 	M.D.;
1. Senior Judge 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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Jennifer Booth, ACNP; and Scott S. Rees, D.O. (collectively,
Defendants) for their alleged negligence in failing to properly
diagnose and treat her. Nearly six months after filing suit,
Turpin moved to compel arbitration pursuant to the parties’
agreement. Defendants opposed Turpin’s motion, contending
that she had waived her right to arbitrate by substantially
participating in litigation and that they were prejudiced by her
filing. Without reaching the question of prejudice, the district
court granted Turpin’s motion, concluding that she had not
substantially participated in litigation and thus had not waived
her right to arbitrate.
¶2 	We affirm the district court’s decision, albeit on alternate
grounds. Applying this court’s precedent, we conclude that
Turpin 	substantially 	participated 	in 	litigation 	by 	filing 	her
malpractice claims in district court. And having been invited by
Defendants to reach the question of prejudice on the record
before us, we conclude that Defendants have not shown that
they were prejudiced as a result of Turpin’s filing.
BACKGROUND2
¶3 	Turpin visited Valley Obstetrics and Gynecology for an
annual check-up in March 2014. Several days after her visit, she
returned because she was experiencing severe pelvic pain. An
ultrasound revealed free fluid in Turpin’s pelvis and a large
ovarian 	mass. 	Dr. 	Rees 	diagnosed 	Turpin 	with 	polycystic
ovarian syndrome and recommended surgery to remove the
mass.
2. In ruling on Turpin’s motion to compel arbitration, the district
court made few factual findings, and most of the relevant facts
are undisputed procedural facts. For the limited purpose of
providing context for this appeal, we recite some additional facts
as they are alleged in Turpin’s complaint. See infra ¶¶ 3–5.

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¶4 	Two weeks later, Drs. Wolsey and Rees tried to surgically
remove 	Turpin’s 	ovarian 	mass 	using 	a 	technique 	called
morcellation, which involves fragmenting the mass into smaller
pieces to aid removal. The doctors removed what they could but
left 	several 	pieces 	of 	the 	mass 	inside 	Turpin’s 	abdomen.
Subsequent tests performed on the extracted pieces revealed that
the mass was actually a cancerous tumor. Turpin has since
undergone additional surgeries and aggressive chemotherapy
under the care of other doctors.
¶5 	Turpin believes that Defendants were negligent in not
making the correct diagnosis before operating and that the
surgery itself was negligently performed. Accordingly, in 2018,
she served notices of intent to commence legal action against
Defendants pursuant to the Utah Health Care Malpractice Act
(the Act), Utah Code Ann. §§ 78B-3-401 to -426 (LexisNexis 2018
& Supp. 2020).3 Pursuant to statute, the Division of Occupational
and 	Professional 	Licensing 	(DOPL) 	provided 	a 	prelitigation
hearing panel, at which the parties appeared with counsel to
address Turpin’s claims.4 See id. § 78B-3-416 (Supp. 2020).
3. Because recent statutory amendments are not material in this
case, 	we 	cite 	the 	current 	version 	of 	the 	Utah 	Code 	for
convenience.
4. Under the Act, a plaintiff must submit a malpractice claim to a
prelitigation panel as a prerequisite to filing a lawsuit. Utah
Code Ann. § 78B-3-416(1)(c), (2)(a) (LexisNexis Supp. 2020). The
proceedings are “informal and nonbinding but also compulsory
as a condition precedent to commencing litigation.” Jensen v.
Intermountain Healthcare, Inc., 2018 UT 27, ¶ 8, 424 P.3d 885
(cleaned up). “After it completes its review, the hearing panel
issues 	an 	opinion 	and 	a 	certificate 	acknowledging 	that 	the
plaintiff 	has 	complied 	with 	[the 	Act’s] 	prelitigation
requirements.” Id.

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¶6 	After 	resolution 	of 	the 	DOPL 	proceedings, 	Turpin
filed 	claims 	for 	medical 	malpractice 	against 	Defendants
in 	district 	court. 	Defendants 	moved 	to 	dismiss 	the
complaint, 	arguing 	that 	the 	claims 	were 	barred 	by 	the
Act’s statute of repose. Turpin opposed Defendants’ motion,
and 	the 	court 	ruled 	in 	her 	favor. 	Defendants 	then
answered Turpin’s complaint and the parties exchanged initial
disclosures.
¶7 	Just a few weeks later, and nearly six months after filing
her complaint, Turpin moved to compel arbitration based on an
agreement 	she 	had 	signed 	during 	her 	third 	visit 	with
Defendants. The agreement provided that Turpin would resolve
any 	medical 	malpractice 	claims 	she 	may 	have 	against
Defendants 	through 	informal 	negotiation, 	non-binding
mediation, 	or 	binding 	arbitration. 	Turpin 	could 	choose 	her
preferred method of resolution, but she waived her right to have
any malpractice claim against Defendants “decided by a judge or
jury.”
¶8 	Defendants opposed Turpin’s motion and argued that
she 	had 	waived 	her 	right 	to 	arbitrate 	by 	filing 	her 	claims
in district court. Citing the two-part test first articulated by
the Utah Supreme Court in Chandler v. Blue Cross Blue Shield
of 	Utah, 	833 	P.2d 	356 	(Utah 	1992), 	Defendants argued 	that
(1) 	Turpin 	had 	substantially 	participated 	in 	litigation 	to
a point inconsistent with the right to arbitrate and (2) her
participation 	had 	prejudiced 	Defendants. 	The 	court
disagreed and ordered the case to arbitration. It concluded
that 	Defendants 	had 	not 	shown 	that 	the 	substantial
participation 	prong 	of 	the 	Chandler 	test 	was 	met,
noting that Turpin “did not participate in written discovery
or 	conduct 	depositions, 	file 	motions 	with 	the 	Court, 	or
engage 	in 	any 	significant 	discovery 	of 	months 	of 	time.”
Having 	reached 	that 	conclusion, 	the 	court 	found 	it
unnecessary 	to 	address 	Defendants’ 	claim 	of 	prejudice.
Defendants appeal.

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ISSUES AND STANDARD OF REVIEW
¶9 	Defendants 	contend 	that 	the 	district 	court 	erred 	in
granting Turpin’s motion to compel arbitration. For the reasons
described below, see infra ¶¶ 12–17, the court’s determination is a
legal conclusion that we review for correctness. ASC Utah, Inc. v.
Wolf Mountain Resorts, LC, 2010 UT 65, ¶ 11, 245 P.3d 184.
¶10 	Defendants also invite us to decide, in the first instance,
whether 	they 	were 	prejudiced 	by 	Turpin’s 	participation 	in
litigation. Because Defendants’ claims of prejudice are based
solely on the assertions made in their legal memoranda, we
accept their invitation and make the determination as a matter of
law. See id.
ANALYSIS
¶11 	The Utah Supreme Court first articulated the test for
whether a party has waived its right to arbitrate in Chandler v.
Blue Cross Blue Shield of Utah, 833 P.2d 356 (Utah 1992). There, the
court stated, “Waiver of a right of arbitration must be based on
both a finding of participation in litigation to a point inconsistent
with the intent to arbitrate and a finding of prejudice.” Id. at 360
(cleaned up). Because policy favors arbitration, “there is also a
strong presumption against waiver of the right to arbitrate.”
Central Fla. Invs. Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 24, 40 P.3d
599. “The party claiming waiver has the burden of establishing
substantial participation and prejudice.” Id.
¶12 	Before we address the two prongs of the Chandler test, we
must first resolve the parties’ dispute over the proper standard
of review.
I. Standard of Review
¶13 	Citing Chandler, Turpin argues that the district court’s
determination 	that 	she 	did 	not 	substantially 	participate 	in

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litigation 	is 	a 	factual 	one 	to 	which 	we 	owe 	deference. 	In
contrast, Defendants cite ASC Utah, Inc. v. Wolf Mountain Resorts,
LC, 2010 UT 65, 245 P.3d 184, and argue that “[b]ecause this
case 	involved no disputed determinations of fact . . . and
was 	resolved 	solely 	on 	documentary 	evidence 	alone,” 	the
applicable standard of review is correctness. We agree with
Defendants.
¶14 	Turpin 	is 	correct 	that, 	for 	nearly 	two 	decades, 	Utah
appellate courts treated a district court’s decision about a party’s
waiver 	of 	its right 	to 	arbitrate 	as a fact-intensive 	decision.
Beginning with Chandler, our supreme court explained that the
existence of both substantial participation and prejudice “should
be reviewed as factual determinations,” with the “dispositive
issue” being “whether there [was] sufficient support in the
record to uphold the trial court’s findings.” Chandler v. Blue Cross
Blue Shield of Utah, 833 P.2d 356, 360 (Utah 1992). And the court
applied this standard, even though the relevant facts in Chandler
were “not in dispute.”5 Id.
¶15 	Until 2010, Utah appellate courts applied this standard of
review in every case that followed. See Pledger v. Gillespie, 1999
UT 54, ¶ 16, 982 P.2d 572 (“[T]he actions or events allegedly
supporting waiver are factual in nature and should be reviewed
as factual determinations, to which we give a district court
5. In dissent, Justice Zimmerman expressed puzzlement over the
majority’s articulation of the standard of review, observing that
“[t]he trial court made no factual findings on disputed evidence
in determining that the standard for waiver was met, and there
was no dispute as to the relevant facts.” Chandler v. Blue Cross
Blue 	Shield 	of 	Utah, 	833 	P.2d 	356, 	361–62 	(Utah 	1992)
(Zimmerman, J., concurring and dissenting). In his view, “[t]he
trial 	[court] 	was 	either 	correct 	in 	concluding 	that 	the
uncontroverted facts satisfied the legal standard or [it] was not.
There is no room here for the exercise of trial court discretion on
this question.” Id. at 362.

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deference.”); Central Fla. Invs. Inc. v. Parkwest Assocs., 2002 UT 3,
¶ 20, 40 P.3d 599 (same); Cedar Surgery Center, LLC v. Bonelli, 2004
UT 58, ¶ 6, 96 P.3d 911 (same); Smile Inc. Asia Pte. Ltd. v.
BriteSmile Mgmt., Inc., 2005 UT App 381, ¶ 20, 122 P.3d 654
(same); see also Baker v. Stevens, 2005 UT 32, ¶ 14, 114 P.3d 580
(“We have noted that the finding of the existence of substantial
participation 	and 	the 	finding 	of 	the 	existence 	of 	prejudice
are 	factual 	in 	nature 	and 	therefore 	should 	be 	reviewed 	as
factual 	determinations.” 	(cleaned 	up)). 	But 	in 	ASC 	Utah,
our 	supreme 	court 	articulated 	a 	different 	standard. 	There,
the court stated, for the first time 	in the Chandler context,
that 	“when 	a 	district 	court 	denies 	a 	motion 	to 	compel
arbitration based on documentary evidence alone, it is a legal
conclusion that is reviewed for correctness.” ASC Utah, 2010 UT
65, ¶ 11.
¶16 	Turpin invites us to overlook this statement, arguing that
“the standard of review in ASC Utah does not apply here”
because the ASC Utah court decided only whether the Chandler
test applied in that case and did not evaluate whether the
evidence supported the district court’s waiver determination.
But we read ASC Utah differently. The supreme court referred to
the district court’s determinations under the Chandler test as
“legal conclusions,” ASC Utah, 2010 UT 65, ¶ 25, and it examined
the undisputed evidence to independently evaluate whether
the defendant had 	substantially participated 	in litigation 	to
a 	point 	inconsistent 	with 	arbitration, 	id. 	¶¶ 	30–34, 	and
whether the plaintiff had been prejudiced as a result, id. ¶ 36.
Further, 	the 	supreme 	court 	ultimately 	determined 	that 	the
district court’s conclusions were “correct,” and it never once
suggested that it was deferring to the district court’s judgment.
Id. ¶¶ 1, 29–40.
¶17 	We acknowledge that the standard of review applied in
ASC Utah is different from the standard applied in Chandler,
even though in each case the waiver question was evaluated
based on undisputed, documentary evidence. But we are bound
to strictly follow the decisions rendered by our supreme court,

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and that includes following its most recent pronouncement on
the applicable standard of review. See Ortega v. Ridgewood Estates
LLC, 2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by
vertical stare decisis to follow strictly the decisions rendered by
the Utah Supreme Court.” (cleaned up)); Gary Porter Constr. v.
Fox Constr., Inc., 2004 UT App 354, ¶ 15 n.2, 101 P.3d 371
(recognizing that this court must follow the Utah Supreme
Court’s 	“most 	recent” 	pronouncement 	on 	an 	issue).6 Thus,
because 	the 	district 	court’s 	substantial 	participation
determination was made based on documents alone, we review
its decision for correctness.
II. The Chandler Test
¶18 	Having identified the applicable standard of review, we
turn our attention to the merits of Defendants’ appeal, which
requires 	our 	application 	of 	the 	Chandler 	two-part 	test. 	As
mentioned above, waiver of a right to arbitrate occurs when both
parts are met. See supra ¶ 11. First, the party seeking arbitration
must substantially participate in litigation to a point inconsistent
with the right to arbitrate. Second, the party’s participation must
cause prejudice to the opposing side. Chandler v. Blue Cross Blue
Shield of Utah, 833 P.2d 356, 360 (Utah 1992).
¶19 	We consider first whether the district court erred in
concluding 	that 	Turpin 	did 	not 	substantially 	participate 	in
litigation. Next, at Defendants’ invitation, we decide in the first
instance whether Turpin’s participation prejudiced Defendants.
6. We note that this court, in Educators Mutual Insurance Ass’n v.
Evans, 	cited 	the 	standard 	of 	review 	from 	Chandler 	and 	its
progeny as the applicable standard, even though that decision
post-dated ASC Utah. See Educators Mutual Ins. Ass’n v. Evans,
2011 UT App 171, ¶ 21, 258 P.3d 598. But unlike this case, it does
not appear that there was a dispute in Educators Mutual about
the appropriate standard of review.

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A. 	Substantial Participation in Litigation
¶20 	“This first part of the Chandler test looks at the actions of
the 	party 	seeking 	arbitration, 	and 	whether 	those 	actions
evidence an intent to submit to the jurisdiction of the court and
pursue 	redress 	through 	litigation.” 	Central 	Fla. 	Invs. 	Inc. 	v.
Parkwest Assocs., 2002 UT 3, ¶ 26, 40 P.3d 599. The district court
determined 	that 	Turpin 	did 	not 	substantially 	participate 	in
litigation because, it reasoned, she did not engage in significant
discovery or file motions with the court. Defendants argue that
the district court’s focus on the extent of Turpin’s post-filing
activities was misguided and that Turpin filing the complaint,
“by itself,” evidenced a clear intent to litigate her dispute and
waive her right to arbitrate. We agree.
¶21 	Our 	case 	law 	applying 	the 	Chandler 	test 	ordinarily
arises in the context of a defendant seeking to arbitrate after
having answered a plaintiff’s complaint. See, e.g., Chandler, 833
P.2d at 360; Central Fla. Invs. 2002 UT 3, ¶ 28; Baker v. Stevens,
2005 UT 32, ¶¶ 13–15, 114 P.3d 580; Smile Inc. Asia Pte. Ltd. v.
BriteSmile Mgmt., 2005 UT App 381, ¶¶ 22–27, 122 P.3d 654.
Under 	those 	circumstances, 	courts 	are 	called 	upon 	to
evaluate 	the 	defendant’s 	various 	litigation 	activities 	to
assess 	whether 	the 	extent 	of 	its 	participation 	evidences 	an
intent to litigate the dispute. But in Educators Mutual Insurance
Ass’n v. Evans, this court addressed a different scenario—one in
which a plaintiff sought to arbitrate its dispute after having
filed a complaint. 2011 UT App 171, ¶ 66, 258 P.3d 598. And
in 	that case, the court had no trouble concluding that the
first prong of the Chandler test was satisfied by the plaintiff’s
filing of the complaint. Id. The court explained, “By filing the
complaint, [the plaintiff] plainly evidenced an intent to submit
to the jurisdiction of the court and pursue redress through
litigation.” Id. Applying that principle here, Turpin’s filing of
her 	complaint 	likewise 	evidenced 	her 	intent 	to 	pursue
redress through litigation, thus satisfying the first prong of the
Chandler test.

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¶22 	Turpin urges us to reach a different conclusion than that
reached 	in 	Educators, 	arguing 	that 	the 	court’s 	substantial
participation determination “is cursory dictum” and does not set
a precedent we must follow. We disagree. Dicta is nonbinding
language in a court’s opinion that is made “casually and without
analysis, where the statement is uttered in passing without due
consideration of the alternatives, or where it is merely a prelude
to another legal issue that commands the court’s full attention.”
State v. Robertson, 2017 UT 27, ¶ 27, 438 P.3d 491 (cleaned up).
The statement in Educators was not uttered in passing or casually
without analysis. The court was called on to specifically address
whether the first prong of Chandler was met, and the court
concluded, 	without 	equivocation, 	that 	filing 	the 	complaint,
without more, evidenced an intent to litigate. Educators, 2011 UT
App 171, ¶ 66. This determination was a key component of the
court’s analysis on the waiver issue, and we are in no position to
disregard it.
¶23 	Turpin 	also 	suggests 	that 	Educators 	is 	at 	odds 	with
Chandler and its progeny, but we view them as consistent. For
example, 	in 	Central 	Florida 	Investments, 	our 	supreme 	court
affirmed the district court’s determination that the defendant did
not substantially participate in litigation, but the supreme court
considered it to be a “close call.” 2002 UT 3, ¶ 27. The court saw
it that way because the defendant had not just answered the
complaint, but it had filed a counterclaim and a motion to
dismiss before moving to compel arbitration. Id. ¶ 28. Thus, the
defendant “invoked the authority of the court . . . before filing
the motion to compel.” Id. Still, the court ultimately held that the
defendant 	did 	not 	waive 	its 	right 	to 	arbitrate, 	deeming 	it
significant that the defendant did not “invoke[]” “the litigation
machinery” and that “when it did participate in the litigation
process,” “it did so reluctantly” and “while communicating an
intent to arbitrate.” Id. ¶ 34. Given the significance attributed to
the 	defendant’s 	reluctance 	in 	Central 	Florida 	Investments—a
reluctance that was missing from Educators—we do not view
Educators as antithetical to other precedent.

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¶24 	Finally, Turpin alternatively asks us to distinguish her
case from Educators, explaining that she “is not a large insurance
company,” as was the plaintiff in that case, and that she filed her
lawsuit shortly before the statute of limitations expired while
changing law firms and fighting cancer. We are sympathetic to
Turpin’s situation, but we fail to see how these differences are
material to the substantial participation prong of the Chandler
test.7 The question posed is whether a party’s actions evidence
an intent to submit to the jurisdiction of the court and pursue
one’s claims through litigation. Absent some outward indication
by Turpin that she was pursuing litigation reluctantly or did not
want 	to 	waive 	her 	right 	to 	arbitrate, 	we 	see 	no 	relevant
difference between this case and Educators,8 and we are bound
by its precedent. See State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592
(“Under the doctrine of horizontal stare decisis, the first decision
by a court on a particular question of law governs later decisions
by the same court.” (cleaned up)).
7. That Turpin may have been an unsophisticated litigant and
may not have recalled signing the arbitration agreement seems
relevant to whether she relinquished a “known” right. See ASC
Utah, Inc. v. Wolf Mountain Resorts, LC, 2010 UT 65, ¶ 26, 245 P.3d
184 (cleaned up) (“A waiver is the intentional relinquishment of
a known right. To constitute a waiver, there must be an existing
right, benefit or advantage, a knowledge of its existence, and an
intention to relinquish it.” (cleaned up)). But Turpin conceded
knowledge 	for 	purposes 	of 	this 	appeal, 	and 	she 	has 	not
otherwise shown how these facts are relevant to the substantial
participation question.
8. We note that unlike Turpin, the plaintiff in Educators had
participated in other litigation activities, including a year of
“pleadings and discovery.” 2011 UT App 171, ¶ 13. But the court
did not view the other activities as material to its analysis. It
concluded that filing the complaint was sufficient to satisfy the
first prong of Chandler. Id. ¶ 66.

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¶25 	In sum, we conclude that the district court erred in
deciding 	that 	Turpin 	had 	not 	substantially 	participated 	in
litigation.9 	By 	invoking 	the 	litigation 	machinery, 	Turpin
evidenced her intent to pursue her medical malpractice claims
against Defendants through litigation, thus satisfying the first
prong of the Chandler two-part test.
B. 	Prejudice
¶26 	Having determined that Defendants did not satisfy the
first prong of the Chandler test, the district court declined to
reach the second prong, which required Defendants to show that
they were prejudiced by Turpin initiating litigation. Aware that
they 	ultimately 	must 	prevail 	on 	both 	prongs 	of 	the 	test,
Defendants invite us to decide the question of prejudice rather
than remand the issue for resolution in the first instance by the
district court.
¶27 	We accept Defendants’ invitation for two reasons. First,
Defendants offered no evidence in support of their claims of
prejudice, but instead they asked the district court to decide the
question based on the docket and counsel’s representations.
Because this posture presents us with a question of law, we are
well suited to decide it. See ASC Utah, Inc. v. Wolf Mountain
Resorts, LC, 2010 UT 65, ¶ 11, 245 P.3d 184 (holding that “when a
district court denies a motion to compel arbitration based on
documentary evidence alone, it is a legal conclusion that is
reviewed for correctness”). Second, “when reviewing a decision
made on one ground, we have the discretion to affirm the
judgment on an alternative ground if it is apparent in the
record.” Madsen v. Washington Mutual Bank fsb, 2008 UT 69, ¶ 26,
199 P.3d 898 (cleaned up); see also Bodell Constr. Co. v. Robbins,
2009 UT 52, ¶ 26 n.17, 215 P.3d 933 (“To serve judicial economy,
we may affirm a district court’s decision whenever the decision
9. 	In 	fairness 	to 	the 	district 	court, 	neither 	party 	cited 	the
Educators case in briefing Turpin’s motion to compel arbitration.

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appealed from is sustainable on any legal ground or theory
apparent on the record.” (cleaned up)). In the interest of judicial
economy, we exercise that discretion here.
¶28 	Because 	Turpin 	participated 	in 	litigation 	to 	a 	point
inconsistent with the intent to arbitrate, “whether waiver has
occurred rests solely on a finding of prejudice.”10 See Chandler,
833 P.2d at 358–59. “[T]he prejudice must relate to the delay in
the assertion of the right to arbitrate,” and “the prejudice [must]
be of such a nature that the party opposing arbitration suffers
some real harm.” Id. at 360. “[A]ctual prejudice or real harm”
may 	be 	shown 	by 	the 	party opposing 	arbitration 	if 	it 	has
incurred “significant expenses in the district court litigation that
would not have been incurred in arbitration,” Pledger v. Gillespie,
1999 UT 54, ¶¶ 19, 23, 982 P.2d 572, or if it has participated in
discovery “that would not have been available in arbitration,”
ASC Utah, 2010 UT 65, ¶ 35. Finally, “prejudice can occur if a
party gains an advantage in arbitration through participation in
pretrial 	procedures.” 	Chandler, 	833 	P.2d 	at 	359. 	The 	party
opposing 	arbitration 	has 	the 	burden 	of 	proving 	prejudice.
Central Fla. Invs., 2002 UT 3, ¶ 24.
10. 	During 	oral 	argument, 	we 	asked 	counsel 	whether 	the
Chandler 	prejudice 	prong 	had 	been 	abrogated 	by 	Mounteer
Enterprises, Inc. v. Homeowners Ass’n, 2018 UT 23, 422 P.3d 809. In
Mounteer, the Utah Supreme Court stated generally that “[t]he
prejudice requirement is a doctrinal misfit in the law of waiver,”
and it thus “repudiate[d] [its] prior decisions that speak of
prejudice as an element of waiver.” Id. ¶¶ 33–34. Mounteer,
however, was not an arbitration case, and the court did not
specifically address whether prejudice remains an element of the
Chandler test. Id. ¶¶ 9–10, 31–34. Because the parties did not raise
this issue in the district court or on appeal, we consider it waived
and assume for purposes of our review that the prejudice prong
still applies in the Chandler context. Still, without expressing any
opinion on it, we flag the issue for possible exploration in a
future case.

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20200015-CA 	14 	2021 UT App 12
¶29 	Defendants first contend that they were prejudiced by
Turpin’s delay in pursuing arbitration because they participated
in the DOPL hearing. Defendants claim that they “were required
to incur attorney fees preparing for the hearing” and that they
lost revenue from having to “take time away from their clinical
practices” to attend. Additionally, Defendants claim that Turpin
“gained 	an 	informational 	advantage” 	because 	there 	was 	a
“candid 	discussion” 	of 	Defendants’ 	“defenses 	and 	medical
assessments” during the DOPL hearing.
¶30 	We do not share Defendants’ view that they have shown
actual prejudice arising from their participation in the DOPL
hearing. For one thing, Defendants have not shown that the time
spent preparing for and attending the DOPL hearing is not time
that would have been spent preparing for arbitration. Even if
Turpin 	had 	immediately 	asserted 	her 	right 	to 	arbitrate,
Defendants still would have invested time examining the facts of
the case and considering their potential defenses. Only generally
alleging that they incurred costs preparing for and attending the
hearing does not establish that the time was wasted and that
they suffered “real harm.” See Chandler, 833 P.2d at 360.
¶31 	Further, even if Defendants incurred some expense to
participate in the DOPL hearing that they would not have
incurred preparing for arbitration, Defendants have not shown
that those expenses were “significant.” See Pledger, 1999 UT 54,
¶ 23. Defendants bear the burden of proof, and by producing no
evidence to substantiate their claims of lost revenue or attorney
fees, their generalized representations make it impossible for us
to conclude that the expenses incurred were significant.11
11. There may be instances where the extent of the litigation
could suggest, even without detailed proof, that the expenses
incurred were significant. For example, in Smile Inc. Asia Pte. Ltd.
v. BriteSmile Management, Inc., 2005 UT App 381, 122 P.3d 654,
this court affirmed a determination of prejudice based on a
(continued…)

Turpin v. Valley Obstetrics and Gynecology
20200015-CA 	15 	2021 UT App 12
¶32 	Similarly, Defendants have not identified any particular
information that Turpin gleaned from the DOPL hearing that she
would not have learned otherwise or that would give her an
unfair advantage in arbitration. Defendants’ mere assertion that
the discussion was “candid” does not reveal whether Turpin left
the hearing with any kind of advantage. And even if we assume
that Turpin did learn something unique in the DOPL hearing,
any 	alleged 	harm 	is 	mitigated 	by 	the 	Act 	because 	the
proceedings are confidential and the evidence of the proceedings
and the panel’s findings and determinations “are not admissible
as evidence in any civil action or arbitration proceeding.” See
Utah Code Ann. § 78B-3-419(1) (LexisNexis 2018); id. § 78B-3-
417(5)(a). Given those limitations, Defendants must do more to
demonstrate actual harm. See Chandler, 833 P.2d at 360.
¶33 	Next, Defendants argue that their lost “right to conduct
discovery 	under 	the 	Utah 	Rules 	of 	Civil 	Procedure” 	in
arbitration is prejudicial. But that alleged loss12 is not a harm
cognizable under Chandler. The Chandler court stated that the
“prejudice must relate to the delay in the assertion of the right to
(…continued)
review of the record that demonstrated that the parties had
engaged in “two years of active litigation,” including exchanging
“significant and extensive discovery” and filing and arguing
“numerous motions.” Id. ¶¶ 35–36. In contrast, the record in this
case does not, without more, show that Defendants incurred
significant expense.
12. We describe this as an alleged loss because, as Defendants
note, 	Turpin 	“explicitly 	stated 	that 	she 	will 	stipulate 	[in
arbitration] to full discovery under the Utah Rules of Civil
Procedure.” Defendants concede that they “have no reason to
believe that Ms. Turpin or her counsel would renege on this
stipulation,” and thus Defendants’ claim that they will not be
able to conduct the same amount of discovery in arbitration is
speculative at best.

Turpin v. Valley Obstetrics and Gynecology
20200015-CA 	16 	2021 UT App 12
arbitrate.” Id. This alleged harm is not related to Turpin’s delay;
the 	alleged 	harm 	would 	exist 	regardless 	of 	when 	Turpin
demanded arbitration. Thus, alleged prejudice of this kind does
not support a determination of waiver.
¶34 	Lastly, Defendants argue that they have been prejudiced
by Turpin’s delay in compelling arbitration because they “have
already devoted extensive briefing to the question of whether
Ms. Turpin 	filed 	her 	complaint 	outside 	of 	the 	statute 	of
repose.”13 Defendants assert that they “likely” would not have
briefed 	this 	issue 	if 	the 	claim 	had 	proceeded 	directly 	to
arbitration, but they acknowledge that they would have raised it
as a legal defense in arbitration. Once again, Defendants have
not shown actual harm. Where they admit that they would have
raised this issue in arbitration, and may have even briefed it, any
claims of prejudice are speculative and inadequate to meet their
burden 	of 	showing 	actual 	harm. 	And 	even 	if 	the 	costs
Defendants incurred to brief their district court motion would
exceed 	the 	costs they 	would 	have 	expended 	in 	arbitration,
Defendants have not demonstrated that the difference is in any
way “significant.” See Pledger, 1999 UT 54, ¶ 23.
¶35 	In sum, Defendants bear the burden of proving that they
suffered “real” and “actual” prejudice resulting from Turpin’s
six-month delay in asserting her right to arbitrate. See Chandler,
833 P.2d at 360; Pledger, 1999 UT 54, ¶ 19. Defendants have
generally identified one or two activities in which they may or
may not have participated had Turpin immediately proceeded to
arbitration. Without more, Defendants have not established that
13. Defendants also argue that they will be prejudiced because
arbitration limits certain options, such as the ability to appeal.
But like their discovery argument, this argument is unavailing.
A limitation on the ability to appeal an arbitration award is not a
cognizable prejudice under Chandler because it does not relate to
Turpin’s delay in initiating arbitration. Chandler, 833 P.2d at 360.

Turpin v. Valley Obstetrics and Gynecology
20200015-CA 	17 	2021 UT App 12
they have suffered actual harm as a result of the delay, and thus
the Chandler prejudice prong has not been met.
CONCLUSION
¶36 	Turpin showed her intent to submit to the jurisdiction of
the court and pursue redress through litigation by filing a
complaint against Defendants in district court. But Defendants
have not shown that they were prejudiced as a result. Thus,
Defendants have not satisfied both prongs of the Chandler test
and we therefore affirm on this alternative ground the district
court’s order compelling arbitration.