Kuhar v. Thompson Manufacturing

2022 UT App 22
THE UTAH COURT OF APPEALS
NICHOLAS K UHAR AND JULIE K UHAR ,
Appellants,
v.
THOMPSON M ANUFACTURING I NC . AND XYZ CORPORATIONS,
Appellees.
Opinion
No. 20200584-CA
Filed February 17, 2022
Third District Court, West Jordan Department
The Honorable Kristine Johnson
No. 190900751
Matthew Weng, Colin P. King, and Paul M.
Simmons, Attorneys for Appellants
Robert L. Janicki and Michael L. Ford, Attorneys
for Appellees
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES R YAN M. HARRIS and R YAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	Nicholas and Julie Kuhar appeal the district court’s grant
of summary judgment in favor of Thompson Manufacturing Inc.
(Thompson) on grounds of issue preclusion. We reverse and
remand for further proceedings.
BACKGROUND
¶2 	Nicholas 	Kuhar 	suffered 	serious 	injury 	when 	he 	fell
thirty-seven feet onto crushed concrete after his safety harness
system failed while he was cleaning rain gutters in New Jersey.

Kuhar v. Thompson Manufacturing
20200584-CA 	2 	2022 UT App 22
Kuhar v. Petzl Co. (Kuhar I), No. 16-0395, 2018 WL 7571319, at *1
(D.N.J. 	Nov. 	27, 	2018). 	The 	harness 	consisted 	of 	“three
component parts: a ‘micrograb,’ a bolt, and a rope.” Id. The
Kuhars 	sued 	several 	companies 	involved 	in 	the 	design,
manufacture, production, and distribution of the harness. These
included Thompson, which designed and 	manufactured the
micrograb, as well as the company that sold the micrograb and
the companies that manufactured and sold a bolt included in the
micrograb. Id. The Kuhars brought their lawsuit in federal court
in New Jersey, where the accident took place.
¶3 	Thompson’s 	principal 	place 	of 	business 	is 	in 	Utah.
Thompson moved to dismiss the Kuhars’ complaint, at least as
stated against Thompson, on the ground that New Jersey lacked
personal jurisdiction over Thompson. The New Jersey federal
court granted the motion and dismissed Thompson from the
case.
¶4 	Subsequently, the Kuhars filed the present action against
Thompson in Utah. In the meantime, the case in New Jersey
proceeded against the other defendants.
¶5 	The Kuhars submitted an expert report in the New Jersey
case. The expert opined that the bolt failed as a result of two
design defects and a manufacturing defect and that an improper
rope was used with the micrograb kit. Id. at *2. Two of the other
defendants moved to strike the report. Id. They alleged that the
expert’s report was not sufficiently reliable to be admissible
under rule 702 of the Federal Rules of Evidence and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Kuhar I,
2018 WL 7571319, at *2. The New Jersey court agreed and
granted the motion to strike. Id. at *10.
¶6 	The remaining New Jersey defendants then filed motions
for summary judgment on the ground that, without expert
testimony, the Kuhars could not establish their claims of design

Kuhar v. Thompson Manufacturing
20200584-CA 	3 	2022 UT App 22
defect or failure to warn. Kuhar v. Petzl Co. (Kuhar II), No. 16-
0395, 2019 WL 6211544, at *2 (D.N.J. Oct. 21, 2019). The court
agreed and granted the motions, concluding that the Kuhars
could not establish that the harness’s failure resulted from a
design defect or failure to warn without the assistance of expert
testimony. Id. at *5.
¶7 	By the time of the New Jersey court’s ruling, the case in
Utah was in the middle of the discovery phase, with an expert
discovery due date almost a year away. Nevertheless, Thompson
moved for summary judgment in the Utah case on the ground
that the New Jersey ruling collaterally estopped the Kuhars from
establishing their claims against Thompson. The district court
agreed and granted Thompson’s motion for summary judgment.
The Kuhars now appeal.
ISSUE AND STANDARD OF REVIEW
¶8 	The 	Kuhars 	challenge 	the 	district 	court’s 	grant 	of
summary judgment in favor of Thompson, asserting that their
Utah claims against Thompson were not barred by the New
Jersey court’s summary judgment ruling in favor of the other
defendants because the issues in the Utah and New Jersey
cases were not identical. Summary judgment is appropriate
only when “there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.”
Utah R. Civ. P. 56(a). We review a district court’s ruling on
summary judgment for correctness. Rupp v. Moffo, 2015 UT 71,
¶ 5, 358 P.3d 1060. Specifically, the “determination of whether
res judicata bars an action presents a question of law,” which
we review for correctness. Macris & Assocs., Inc. v. Neways Inc.,
2000 UT 93, ¶ 17, 16 P.3d 1214; see also Massey v. Board of Trs. of
Ogden Area Cmty. Action Comm., Inc., 2004 UT App 27, ¶ 5, 86
P.3d 120.

Kuhar v. Thompson Manufacturing
20200584-CA 	4 	2022 UT App 22
ANALYSIS
¶9 	“Issue preclusion, often referred to as collateral estoppel,
prevents relitigation of issues already determined in a previous
action.” Collins v. Sandy City Board of Adjustment, 2000 UT App
371, ¶ 8, 16 P.3d 1251. To establish issue preclusion, a party must
show
(1) the issue decided in the prior adjudication is
identical to the one presented in the instant action;
(2) the party against whom issue preclusion is
asserted was a party, or in privity with a party, to
the prior adjudication; (3) the issue in the first
action was completely, fully, and fairly litigated;
and (4) the first suit resulted in a final judgment on
the merits.
Buckner v. Kennard, 2004 UT 78, ¶ 13, 99 P.3d 842.1 As our
supreme court has noted, this doctrine “prevents parties or their
privies from relitigating issues which were once adjudicated on
the merits and have resulted in a final judgment.” Murdock v.
Springville Mun. Corp. (In re General Determination of the Rights to
the Use of All the Water), 1999 UT 39, ¶ 18, 982 P.2d 65 (emphasis
added). 	Thompson’s 	collateral 	estoppel 	arguments 	run 	into
trouble on both the first and the third elements.
¶10 	With 	regard 	to 	the 	first 	element, 	the 	issues 	actually
decided in the New Jersey litigation were not the same as the
1. 	Although 	the 	collateral 	estoppel 	question 	concerns 	the
preclusive effect of a New Jersey ruling, no party asserts that we
should apply New Jersey law to answer the collateral estoppel
question. And in any event, no suggestion has been made that
New Jersey law and Utah law differ in application of collateral
estoppel principles.

Kuhar v. Thompson Manufacturing
20200584-CA 	5 	2022 UT App 22
issues raised before the district court here. In New Jersey, the
court determined both (1) that a particular expert’s testimony,
proffered by the Kuhars, was inadmissible under rule 702 of the
Federal Rules of Evidence and applicable federal case law, see
Kuhar I, No. 16-0395, 2018 WL 7571319, at *9–10 (D.N.J. Nov. 27,
2018), and (2) that without that expert’s testimony, under New
Jersey 	law 	the 	Kuhars 	could 	not 	satisfy 	their 	burden 	of
establishing their product liability claims, see Kuhar II, No. 16-
0395, 2019 WL 6211544, at *5, *8–9 (D.N.J. Oct. 21, 2019). Those
are not the same issues that the parties raised in the district court
in the present case.
¶11 	The Utah case was in its early stages when Thompson
filed 	its 	summary 	judgment 	motion, 	and 	expert 	disclosure
deadlines had not yet passed. The Kuhars had not yet submitted
any expert report in support of their claims—certainly not the
same expert report that was excluded in New Jersey—and the
district court was not asked to weigh in on whether the specific
testimony 	of 	any 	particular 	expert 	was 	admissible.2 	Thus,
2. Moreover, even if the Kuhars had sought to admit, in Utah,
the same testimony by the same expert based on the same report
they submitted in New Jersey, the question would have been
governed by Utah law and not by federal law. See Utah R. Evid.
702. Our standards for admission of expert testimony are not the
same as—and are arguably somewhat more lenient than—the
standards for admission of expert testimony under federal law.
See State v. Sheehan, 2012 UT App 62, ¶ 22, 273 P.3d 417 (noting
that “Utah’s rule 702 differs from its current federal counterpart
by requiring ‘only a “threshold” showing’” (quoting Utah R.
Evid. 702 advisory committee note)). Thus, the question of
whether a particular expert’s testimony is admissible under
federal law is not necessarily the same as whether that same
testimony is admissible under Utah law. In light of our arguably
(continued…)

Kuhar v. Thompson Manufacturing
20200584-CA 	6 	2022 UT App 22
because the Kuhars had not been adjudicated to be bereft of
expert testimony, the court had no occasion to consider whether
the Kuhars, in the absence of expert testimony, would be able to
satisfy their burden of proof on the merits of their underlying
claim.
¶12 	By contrast, the issue that was the subject of Thompson’s
summary 	judgment 	motion—the 	issue 	to 	which 	Thompson
wished to ascribe preclusive effect—was whether the product in
question was defective. Indeed, even in its briefing on appeal,
Thompson continues to frame the relevant issue as whether the
product in question was defective. But the New Jersey court
never grappled with the merits of that issue; it decided the case
against the Kuhars not because it made a factual determination
that the product was not defective but because it determined
that the Kuhars could not satisfy their burden of proof on that
point without expert testimony. Because the New Jersey court
never concerned itself with the merits of whether the product
was defective, that issue is not one to which Thompson here can
ascribe preclusive effect.
¶13 	And it is at this point in the analysis that the third element
of the collateral estoppel test comes into play. That third element
requires Thompson to demonstrate that “the issue in the first
action was completely, fully, and fairly litigated.” See Buckner,
2004 UT 78, ¶ 13; see also Murdock, 1999 UT 39, ¶ 18 (stating that
the elements of collateral estoppel require that the issue in
(…continued)
more lenient standards, it is at least conceivable that a given
expert’s testimony could be admissible under Utah law even if it
is not admissible under federal law. In any event, we need not
consider these issues further here, because the Kuhars have not
sought to admit the same testimony by the same expert whose
report was excluded in New Jersey.

Kuhar v. Thompson Manufacturing
20200584-CA 	7 	2022 UT App 22
question have been “adjudicated on the merits”). If we define the
“issue” as Thompson asks us to—namely, whether the product
in question was defective—it becomes clear that this issue was
never the subject of full and complete litigation in New Jersey.
The court simply never reached the merits of that issue—i.e.,
holding a trial to weigh the evidence and make a finding as to
the 	alleged 	defective 	nature 	of 	the 	product—because 	it
determined that the Kuhars’ overarching claim failed on what
amounted to a procedural ground.
¶14 	A 	court that 	dismisses a 	party’s claim 	on 	nonmerits
procedural grounds (say, for instance, because a party’s answer
has been stricken as a sanction for discovery abuses or because a
party fails to appear at a hearing) has not fully litigated the
merits of 	the 	underlying 	substantive 	issue, 	even 	though 	its
dismissal of the overarching claim may operate as an “on the
merits” dismissal.3 See, e.g., Schuh v. American Express Bank, FSB,
3. Had Thompson asked for application of claim preclusion
(instead of issue preclusion), it would have a fair point that the
Kuhars had raised a defective product claim and had lost on the
merits—whether on a procedural or substantive ground—and
that they are attempting to raise the same defective product
claim here. See Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93,
¶ 19, 16 P.3d 1214 (stating that claim preclusion “precludes the
relitigation of all issues that could have been litigated as well as
those that were, in fact, litigated in the prior action” (quotation
simplified)). But there is no such thing as nonmutual claim
preclusion; we presume that the reason Thompson does not ask
for application of claim preclusion here is that the parties to the
New Jersey decision are not the same as the parties to this case,
due to Thompson’s dismissal from the New Jersey case on
personal 	jurisdiction 	grounds. 	See 	id. 	(“Claim 	preclusion
involves the same parties or their privies . . . .”). Had Thompson
(continued…)

Kuhar v. Thompson Manufacturing
20200584-CA 	8 	2022 UT App 22
806 F. App’x 973, 974 (11th Cir. 2020) (stating that the order of
dismissal in the first case “cannot serve as collateral estoppel” in
the second case “because [the first] case was not actually fully
litigated and decided” but “was dismissed as a sanction”); cf.
Zufelt v. Haste, Inc., 2006 UT App 326, ¶ 15, 142 P.3d 594 (holding
that the issue to which the court was being asked to ascribe
preclusive effect “was not the central issue in the” previous
proceeding and “was only superficially addressed in discussions
pertaining to” another determination the court made, and that
therefore the court could not “say that [the party] had an
opportunity 	to 	completely 	and 	fully 	litigate 	the 	issue”);
Restatement (Second) of Judgments § 27 cmt. d (Am. L. Inst.
1982) (stating that an “issue is actually litigated” when it “is
properly raised . . . and is submitted for determination, and is
determined”). Reaching the merits of an issue is not always the
same thing as reaching the merits of a claim. A court can decide
the 	merits 	of 	an 	underlying 	issue 	without 	making 	a
determination as to the merits of the overarching claim (for
instance, when a court dismisses a case for lack of personal
jurisdiction, it has decided the issues related to the jurisdictional
question, but its dismissal is not on the merits and it may not
have reached the substance of the underlying claim), and a court
can dismiss a claim on its merits without reaching the merits of
one or more of the underlying issues that formed the basis for
the complaint (for instance, when a court dismisses a claim as a
sanction, 	the 	dismissal 	may 	operate 	as an 	“on 	the 	merits”
dismissal, but the court may never have reached the merits of
any of the substantive issues). To keep the doctrines of claim
preclusion and issue preclusion separate, it is important to keep
(…continued)
remained involved in the New Jersey case and not sought
dismissal 	on 	jurisdictional 	grounds, 	it 	would 	have 	a 	good
argument for application of claim preclusion here.

Kuhar v. Thompson Manufacturing
20200584-CA 	9 	2022 UT App 22
these distinctions in mind. See 18 James Wm. Moore et al.,
Moore’s Federal Practice § 131.13[1] (2021) (“The basic difference
between claim preclusion and issue preclusion is simply put:
claim preclusion applies to whole claims, whether litigated or
not, whereas issue preclusion applies to particular issues that
have been contested and resolved.”).
¶15 	Here, while the New Jersey decisions certainly disposed
of, on its merits, the Kuhars’ product liability claim against the
defendants named in that action, they never reached the merits
of the underlying issue to which Thompson points: whether the
product was defective. And as long as Thompson persists in
defining 	the 	“issue”—for 	purposes 	of 	issue 	preclusion—as
whether the product was defective, Thompson can never win a
motion for summary judgment on issue preclusion grounds.
CONCLUSION
¶16 	Because the issue to which Thompson wishes to ascribe
preclusive effect was not identical to the issues actually decided
by the New Jersey court and was never fully and fairly litigated
there, 	the 	district 	court 	erred 	in 	determining 	that 	issue
preclusion barred the Kuhars’ claims. We therefore reverse the
district court’s grant of summary judgment and remand for
further proceedings.