Gallegos v. Brewskis

2026 UT App 120
THE UTAH C OURT OF APPEALS
JERRY GALLEGOS ,
Appellee and Cross-appellant,
v.
BREWSKI ’ S ON HISTORIC 25TH S TREET,
Appellant and Cross-appellee.
Opinion
No. 20240219-CA
Filed August 6, 2026
Second District Court, Ogden Department
The Honorable Reuben Renstrom
The Honorable Craig Hall
No. 200902686
Bruce C. Burt, Attorney for Appellant and
Cross-appellee
Robert W. Gibbons and Lindy W. Hamilton,
Attorneys for Appellee and Cross-appellant
JUDGE A MY J. O LIVER authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN M. HARRIS concurred as to
Parts I, II, III.A.2 and III.C. JUDGE GREGORY K. O RME also
concurred as to Part III.B. JUDGE R YAN M. HARRIS authored a
separate opinion, authoring the Opinion of the Court as to the
issue in Part III.A.1, in which JUDGE GREGORY K. O RME
concurred, and dissenting as to Part III.B.
OLIVER, Judge:
¶1 	Jerry Gallegos sued Brewski’s on Historic 25th Street
(Brewski’s), and others, for injuries he suffered when a Brewski’s
employee forcibly removed him from the business’s premises.
During the litigation, the district court sanctioned Brewski’s for
its spoliation of video evidence. The district court also sanctioned
Gallegos after his counsel improperly terminated the deposition

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of one of his expert witnesses who had come to the deposition
unprepared. Brewski’s eventually moved for summary judgment
on the ground that Gallegos could not prove his claims for
negligence 	and 	negligent 	hiring, 	training, 	and 	supervision
without expert testimony. The district court granted the motion,
dismissing both of Gallegos’s claims against Brewski’s.
¶2 	Despite prevailing on summary judgment, Brewski’s filed
this appeal challenging the district court’s spoliation sanction.
Gallegos then cross-appealed, raising numerous challenges to the
district court’s sanctions and summary judgment rulings. For the
reasons discussed below, we affirm the district court’s sanctions
rulings but we reverse the grant of summary judgment on
Gallegos’s negligent hiring, training, and supervision claim. A
majority of the court also reverses the grant of summary judgment
on the negligence claim.
BACKGROUND1
The Incident and Lawsuit
¶3 	In January 2019, Gallegos went to Brewski’s, a local bar,
with some friends. Later that night, in an attempt to defend his
friend who had been asked to leave the bar, Gallegos began
speaking loudly to the bartender from the table where he was
sitting. The bartender approached Gallegos at his table to speak
to him. As the conversation intensified, a bouncer employed by
Brewski’s (Bouncer) walked over and stood next to Gallegos’s
table. Bouncer then “grabbed . . . Gallegos from behind and
proceeded to the front door to take him outside.” Bouncer put him
1. “In reviewing a district court’s grant of summary judgment, we
view the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (cleaned up).

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in a “full nelson”2 headlock, with Gallegos’s arms above his head,
and then carried and dragged Gallegos to the doorway. Gallegos
buckled his knees as the pair approached the door, causing them
both to lose their balance as Bouncer pushed Gallegos out the
door. Gallegos subsequently fell, and he suffered permanent
injury to his right shoulder as a result of the fall.
¶4 	Gallegos 	filed 	suit 	against 	Brewski’s, 	One 	Commerce
Street, and Harwood Properties, LLC.3 He alleged two claims of
negligence against Brewski’s, one for vicarious liability for its
employees’ negligence and one for direct liability based on the
negligent hiring, training, and supervision of its employees.
Spoliation Sanction
¶5 	Following the incident, Gallegos called the police, and a
police officer (Officer) soon came to Brewski’s to respond to the
incident. Officer informed the manager at Brewski’s (Manager)
that Gallegos wished to bring legal action and gave him a case
number. While there, Manager showed Officer security video
footage (the Footage) of Gallegos’s removal. Officer informed
Manager that he needed a copy of the Footage and told Manager
to make a copy and hold on to it. Officer’s entire interaction,
including 	viewing 	the 	Footage, 	was 	captured 	on 	video 	by
2. A “full nelson” is “a wrestling hold gained from behind an
opponent by thrusting the arms under the opponent’s arms and
clasping the hands behind the opponent’s head.” Full nelson,
Merriam-Webster, https://www.merriam-webster.com/dictionar
y/full%20nelson [https://perma.cc/7XTH-FEX5].
3. Gallegos voluntarily dismissed Harwood Properties, LLC and
obtained a default judgment against One Commerce Street. See
Gallegos v. One Com. St., LLC, 2025 UT App 196, ¶¶ 1, 5 n.2, 585
P.3d 651.

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Officer’s body camera.4 A few days later, Gallegos sent certified
letters to Brewski’s and its owner, Heidi Harwood, requesting a
copy of the Footage. Brewski’s employees signed for receipt of
these letters.
¶6 	Officer returned to Brewski’s within a week of his initial
visit, and Manager informed him that a copy of the Footage had
been made and was with Harwood. However, Officer was unable
to get in contact with Harwood, and no copy of the Footage was
ever provided to him or Gallegos. Brewski’s security system
automatically loops over itself approximately every ten days, so
the Footage was lost and could not be recovered.
¶7 	Gallegos filed a motion for sanctions related to Brewski’s
spoliation of the Footage. The district court found that Brewski’s
had a duty to preserve the Footage and that it violated that duty.
Additionally, the court found that the body camera video of the
Footage was “not equal in quality” to the Footage. As a result, the
court sanctioned Brewski’s with “an adverse inference instruction
. . . that if the jury cannot determine from available evidence
whether [Brewski’s] was negligent, it must assume that the
spoliated evidence would have been unfavorable to [Brewski’s].”
Exclusion of Gallegos’s Expert
¶8 	During discovery, the court granted Gallegos’s request for
additional time to complete expert depositions and extended the
deadline 	to 	March 	3, 	2022. 	Two 	days 	before 	the 	deadline,
Brewski’s deposed Gallegos’s expert witness (Expert), who was
designated 	to 	testify 	about 	“generally 	accepted 	security
protocols” 	and 	opine 	that 	Bouncer 	“was 	negligent 	in 	his
application 	of 	[the] 	procedures 	for 	physically 	removing
[Gallegos] from the premises.” Expert was unprepared for the
deposition and could not answer even basic questions from
4. A copy of the body camera video is not in the record and,
therefore, we have not been able to review it ourselves.

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Brewski’s counsel. Ninety minutes into the deposition, Gallegos’s
counsel “forced a break in an effort to rehabilitate [Expert’s]
testimony off the record,” an action the district court later found
to be “inappropriate[].” After resuming, Gallegos’s counsel took
another break before “abruptly and inappropriately end[ing] the
deposition . . . despite the objection of” Brewski’s counsel.
Gallegos’s counsel “indicated on the record . . . that [Expert] was
‘not 	prepared 	to 	move 	forward 	with the remainder 	of 	the
deposition because he ha[d]n’t reviewed the materials.’” Two
days later, Gallegos filed a motion for an extension of time to
complete Expert’s deposition, claiming that Expert had suffered a
“memory blip.” The court denied the motion.
¶9 	Brewski’s then filed a motion in limine to exclude Expert
from testifying at trial based on the failure to complete expert
depositions by the required deadline and the inappropriate
behavior at the deposition by Expert and Gallegos’s counsel. After
a hearing, the court granted the motion and sanctioned Gallegos.
The court pointed out that Gallegos was required to have Expert
prepared at the time of the deposition and found that Expert was
not prepared. Additionally, the court found Gallegos’s counsel’s
decision to end the deposition was unilateral, made without
seeking court approval, done over the objection of Brewski’s
counsel, and “not substantially justified.” The court found the
actions of Gallegos’s counsel and Expert were “willful and
intentional.” The court also found that Brewski’s was prejudiced
as it was “unable to cross-examine [Expert]” at the deposition and
therefore could not “effectively cross-examine” Expert at trial.
The court determined that Gallegos was the disobedient party
and concluded that “the sanction of exclusion [was] proportional
to the sanctionable conduct.” The court then precluded Expert
from testifying at trial.5
5. This court denied Gallegos’s petition for permission to appeal
from the interlocutory order excluding Expert’s testimony.

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Summary Judgment
¶10 	Following the district court’s order excluding Expert’s
testimony, Brewski’s filed a motion for summary judgment,
arguing that without Expert, Gallegos could not establish either
the proper standard of care or breach of that standard and thus
could not prove any of his negligence claims. Gallegos opposed
this motion on multiple grounds, including that the motion was
untimely, no expert testimony was needed because the issue in
the case was a simple “trip,” and if expert testimony was needed,
he could call his rebuttal security expert (Rebuttal Expert) in his
case-in-chief.
¶11 	The court acknowledged the untimely filing of Brewski’s
motion 	but 	concluded 	the 	circumstances 	giving 	rise 	to 	the
motion—namely, 	the 	exclusion 	of 	Expert—arose 	after 	the
deadline prescribed in rule 56(b) of the Utah Rules of Civil
Procedure and thus warranted an extension of time. Addressing
the merits of the motion, the court concluded that the central issue
of the case was “what a reasonable bouncer should have done
under the same or similar circumstances and whether [Bouncer]
breached that standard.” The court determined that “an average
layperson would typically not know whether a bouncer can, or
should, remove someone from the premises of the business” or
“what level of force is reasonable under certain circumstances.”
Thus, the court concluded, “expert testimony [was] needed for
[Gallegos] to establish the elements of negligence in this case.”
The court then denied Gallegos’s request to use Rebuttal Expert
in his case-in-chief to establish the standard of care and breach of
that standard.
¶12 	The 	court 	concluded 	Gallegos 	could 	not 	establish
negligence without an expert witness to testify to the standard of
care and to a breach of that standard. The court also concluded
that without Expert’s testimony on “what proper bouncer training
is,” Gallegos could not establish his claim of negligent hiring,

Gallegos v. Brewski’s
20240219-CA 	7 	2026 UT App 120
training, and supervision. The court then granted summary
judgment to Brewski’s on all of Gallegos’s claims.
The Appeals
¶13 	After the district court dismissed all of Gallegos’s claims
against 	Brewski’s, 	Brewski’s 	appealed 	the 	district 	court’s
imposition of the sanction for spoliation of evidence.6 Gallegos
then filed a cross-appeal raising numerous issues. We now
address both appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 	Brewski’s appeals the district court’s imposition of a
sanction against it for spoliation of evidence. “As a general rule,
district courts are granted a great deal of deference in selecting
discovery sanctions, and we overturn a sanction only in cases
evidencing a clear abuse of discretion.” Yuanzong Fu v. Rhodes,
2013 UT App 120, ¶ 8, 304 P.3d 80 (cleaned up), aff’d, 2015 UT 59,
355 P.3d 995.
¶15 	In his cross-appeal, Gallegos raises numerous issues for
our review. First, Gallegos appeals the court’s spoliation sanction
against Brewski’s as being too lenient. Second, Gallegos appeals
the court’s imposition of a sanction against him—exclusion of
Expert—for discovery violations. Again, we review discovery
sanctions for “a clear abuse of discretion.” Id. (cleaned up). “We
6. Where the appellant obtained judgment in its favor, we would
normally 	dismiss 	the 	appeal 	as 	presenting 	an 	insubstantial
question because a ruling reversing a discovery sanction would
not alter the favorable judgment. See Utah R. App. P. 10(a)(2)
(“[T]he court, on its own motion, . . . may dismiss an appeal . . . if
it plainly appears that no substantial question is presented.”). But
because Gallegos filed a timely cross-appeal, we review Brewski’s
appeal of the sanction order on the merits.

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will find an abuse of discretion in a [district] court’s choice of
sanction only when there is either an erroneous conclusion of law
or no evidentiary basis for the [district] court’s ruling.” Hales v.
Oldroyd, 2000 UT App 75, ¶ 16, 999 P.2d 588 (cleaned up).
¶16 	Finally, 	Gallegos 	challenges 	the 	grant 	of 	summary
judgment to Brewski’s on several grounds. “We review a district
court’s decision to grant summary judgment for correctness,
granting no deference to the district court’s conclusions.” Gillmor
v. Summit County, 2010 UT 69, ¶ 16, 246 P.3d 102 (cleaned up).7
ANALYSIS
I. Spoliation Sanction
¶17 	Both 	Brewski’s 	and 	Gallegos 	argue 	the 	district 	court
abused its discretion in entering an adverse jury instruction as a
sanction for Brewski’s spoliation of the Footage. Brewski’s argues
that no sanction was warranted, while Gallegos argues that the
sanction was not severe enough and that the district court should
have “deem[ed] liability admitted.” We disagree with both parties
and conclude the district court did not clearly abuse its discretion.
¶18 	Rule 37(e) of the Utah Rules of Civil Procedure permits a
court to impose sanctions “if a party destroys, conceals, alters,
tampers with, or fails to preserve . . . electronic data, or other
evidence in violation of a duty.” To impose sanctions under this
7. Gallegos also appeals the dismissal of his request for costs
related to his motion to exclude witnesses. However, this issue
was inadequately briefed, and we therefore decline to address the
merits of the argument. See Seamons v. Brandley, 2011 UT App 434,
¶¶ 5–6, 268 P.3d 195 (explaining that an issue is inadequately
briefed “when the overall analysis of the issue is so lacking as to
shift the burden of research and argument to the reviewing court”
and, as a result, declining to address such issues).

Gallegos v. Brewski’s
20240219-CA 	9 	2026 UT App 120
rule, “the court must first find that the custodial party was under
a duty to preserve evidence, and that it violated that duty. At that
point, 	the 	court 	has the 	discretion to 	impose 	sanctions for
spoliation.” Diversified Concepts LLC v. Koford, 2021 UT App 71,
¶ 19, 495 P.3d 755.
A. 	Duty to Preserve Evidence
¶19 	“The duty to preserve evidence begins when litigation is
pending or reasonably foreseeable. This is an objective standard,
asking . . . whether a reasonable party in the same factual
circumstances would have reasonably foreseen litigation.” Id. ¶ 21
(cleaned up). Here, Officer informed Manager of Gallegos’s intent
to pursue legal action and that the police had assigned a case
number to the incident. Officer also specifically requested a copy
of the Footage on the night of the incident. Additionally, within a
week of the incident, Gallegos requested a copy of the Footage
from Brewski’s via two certified letters that were signed for by
Brewski’s employees.8 Brewski’s argues that Manager did not
understand Officer’s request for a copy of the Footage and that
the letters were not received by the relevant people. But the
existence of a duty is judged by an objective standard, not
Manager’s subjective belief. A “reasonable party in the same
factual circumstances would have reasonably foreseen litigation,”
id. (cleaned up), and understood that it needed to preserve the
Footage after requests from both a police officer and the injured
party. Thus, the district court did not abuse its discretion in
finding that Brewski’s had a duty to preserve the Footage.
8. Brewski’s argues the district court erred in relying on these
letters as Gallegos did not produce them in discovery. However,
because the letters were not going to be offered in Gallegos’s case-
in-chief, he was not required to produce them as part of his initial
disclosures. See Utah R. Civ. P. 26(a)(1)(B).

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20240219-CA 	10 	2026 UT App 120
B. 	Electronic Information Systems
¶20 	Brewski’s argues it should not have been sanctioned under
rule 	37(e) 	because 	the 	Footage 	was 	“electronically 	[stored]
information lost as a result of the routine, good-faith operation of
an electronic information system” and the district court did not
find the required “exceptional circumstances.” (Quoting Utah R.
Civ. P. 37(e).) While there was no dispute that the Footage was
lost because the security system automatically looped over itself,
Brewski’s did not meet the rule’s requirement of “good-faith
operation.” Utah R. Civ. P. 37(e). The district court specifically
found that Brewski’s conduct in failing to preserve the Footage
was “reckless.” And reckless conduct does not qualify as the
“good-faith operation of an electronic information system” as
required by rule 37(e). Id. Thus, the district court was not required
to find “exceptional circumstances” before imposing sanctions
against Brewski’s. Id. Accordingly, the district court did not
clearly abuse its discretion in imposing a sanction under rule
37(e).
C. 	Choice of Sanction
¶21 	“As with all discovery violations, the district court has
broad discretion to choose the sanction it deems appropriate.”
Diversified Concepts, 2021 UT App 71, ¶ 35. Available sanctions for
spoliation 	include 	any 	of 	the 	following: 	“deeming 	facts
established, limiting a party’s argument, prohibiting evidence,
imposing a stay until compliance happens, dismissing an action
(in part or in full), striking pleadings, entering default judgment,
imposing attorney fees, and giving adverse jury instructions.”
Gallegos v. One Com. St., LLC, 2025 UT App 196, ¶ 12, 585 P.3d 651
(citing Utah R. Civ. P. 37(b)). The purpose of spoliation sanctions
is “to punish and deter future violations” from the offending
party and to “even[] the playing field, or rectify[] the prejudice
caused 	by 	the 	spoliation” 	for 	the 	injured 	party. 	Diversified
Concepts, 2021 UT App 71, ¶ 36 (cleaned up).

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¶22 	In determining which sanction to impose, courts are to
consider (1) the fault of the offending party, (2) the prejudice
suffered by the opposing party, and (3) whether a lesser sanction
will be sufficient to fulfill the purposes of sanctioning the conduct
in question. See id. Here, the district court found Brewski’s at fault
for failing to preserve the Footage. Next, the court found that,
although the Footage was partially recorded on Officer’s body
camera, Gallegos was prejudiced because the “secondhand view”
on Officer’s body camera was “not equal in quality” to the
Footage. Finally, the court considered imposing a lesser sanction
against Brewski’s and ultimately did so. The court first considered
Gallegos’s request for a directed verdict against Brewski’s on
liability, but it concluded that such a sanction was “not warranted
under 	the 	circumstances.” 	Instead, 	it 	determined 	that 	“an
instruction with a negative inference [wa]s warranted, given that
there [wa]s some evidence that remain[ed].” Thus, the court
imposed an adverse jury instruction that “if the jury cannot
determine 	from 	available 	evidence 	whether 	[Brewski’s] 	was
negligent, it must assume that the spoliated evidence would have
been unfavorable to [Brewski’s].”
¶23 	The district court grounded its decision in the evidence,
appropriately weighed the relevant factors, and fashioned a
proportionate sanction to cure the prejudice. Accordingly, the
court’s decision to sanction Brewski’s for the spoliation of the
Footage by imposing an adverse jury instruction was not a clear
abuse of discretion.9
9. Brewski’s also argues the district court should have addressed
whether, during trial, it would be permitted to try to rebut the
negative inference permitted by the instruction. However, this
issue is not preserved, and we therefore decline to address it. See
True v. Utah Dep’t of Transp., 2018 UT App 86, ¶¶ 29–31, 427 P.3d
338.

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II. Exclusion of Expert
¶24 	Gallegos 	challenges 	the 	district 	court’s 	exclusion 	of
Expert’s testimony as a sanction under rule 37(b) of the Utah Rules
of Civil Procedure. Under this rule, “[u]nless the court finds that
the failure was substantially justified, the court, upon motion,
may impose appropriate sanctions for the failure to follow its
orders.” Utah R. Civ. P. 37(b). Available 	sanctions for this
disobedience are the same as discussed in paragraph 21. Gallegos
acknowledges that he failed to complete all expert depositions by
the date ordered by the court, but he argues that the court
nonetheless 	abused 	its 	discretion 	by 	sanctioning 	him 	for
“pausing” Expert’s deposition and by not allowing his request for
a continuance to complete Expert’s deposition. We disagree.
¶25 	The behavior of both Expert and Gallegos’s counsel at the
deposition was improper and deliberate. First, Expert did not
have a mere “memory blip” during the deposition. The district
court found that although Gallegos was required to have Expert
prepared to answer questions at the time of his deposition, Expert
“was not prepared.” See Utah R. Civ. P. 26 advisory committee’s
notes to 2011 amendments (“[T]he expert is expected to be fully
prepared on all aspects of his/her trial testimony at the time of the
deposition and may not leave the door open for additional
testimony 	by 	qualifying 	answers 	to 	deposition 	questions.”).
Second, 	Gallegos’s 	counsel 	compounded 	the 	problem 	by
“inappropriately forc[ing] a break in an effort to rehabilitate
[Expert’s] testimony off the record” before finally “abruptly and
inappropriately 	end[ing] 	the 	deposition.” 	The 	district 	court
determined that “[r]ather than allow the defense to question the
unprepared 	[Expert], 	[Gallegos’s 	counsel] 	instead 	chose 	to
unilaterally end the deposition hoping the court would permit
[Expert] more time to prepare himself.” The court also found that
Gallegos’s counsel’s decision to “walk out of [Expert]’s deposition
before defense counsel could conclude it was not substantially

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justified.” Additionally, the court found this behavior by both
Gallegos’s counsel and Expert was “willful and intentional.”
¶26 	Moreover, the district court concluded Brewski’s was
prejudiced by the behavior of Expert and Gallegos’s counsel.
Specifically, the court found that Brewski’s was “unable to cross-
examine [Expert] to inquire about his opinions and the bases for
his opinions” so it could effectively cross-examine Expert at trial
and that the prejudice could not be reversed. The court then
concluded the “sanction of exclusion” was “fair, reasonable, . . .
specifically targeted at the discovery abuse” that occurred at
Expert’s 	deposition, 	and 	“proportional 	to 	the 	sanctionable
conduct.”
¶27 	We have emphasized that “although some of Rule 37’s
discovery sanctions are harsh and extreme, Rule 37 grants the
[district] court broad discretion to impose them . . . and we will
not interfere with the [district] court’s imposition of discovery
sanctions . . . , including its choice of sanctions, unless [an
appellant] clearly shows the [district] court abused its discretion.”
Wright v. Wright, 941 P.2d 646, 650 (Utah Ct. App. 1997) (cleaned
up). On the facts before us—Expert appearing at his deposition
unprepared and the “willful and intentional” misbehavior by
Gallegos’s 	counsel 	at 	the 	deposition—Gallegos 	has 	not
demonstrated that the district court’s decision to sanction him by
excluding Expert’s testimony from trial was a clear abuse of
discretion.10
10. It may also have been appropriate for the court to impose
sanctions under Utah Rule of Civil Procedure 37(d) because
appearing 	at 	a 	deposition 	as 	unprepared 	as 	Expert 	did 	is
tantamount to not appearing at all. See Utah R. Civ. P. 37(d)
(stating that if a witness fails to appear for a deposition, the other
party may move for sanctions under rule 37(b)); see also Black Horse
(continued…)

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III. Summary Judgment
¶28 	Gallegos challenges the district court’s grant of summary
judgment to Brewski’s on two grounds: (A) he argues he was not
required to produce expert testimony on the standard of care and
breach 	elements 	of 	either 	his 	vicarious 	liability 	claim 	for
negligence 	or 	his direct 	liability 	claim 	for 	negligent 	hiring,
training, and supervision and (B) he argues the motion should
have been denied as untimely. We address each argument in turn.
A. 	Necessity of Expert Testimony
¶29 	To prove his two claims of negligence, Gallegos “must
establish four elements: the existence of a duty, a breach of the
standard of care, causation, and damages.” Jensen v. Walgreen Co.,
2025 UT 41, ¶ 17, 579 P.3d 305. With respect to the first element,
“in cases where the standard of care is usually not within the
common knowledge of the lay juror, testimony from relevant
experts is generally required.” Callister v. Snowbird Corp., 2014 UT
App 243, ¶ 12, 337 P.3d 1044 (cleaned up). This expert testimony
requirement “ensures that factfinders have adequate knowledge
upon which to base their decisions.” Ruiz v. Killebrew, 2020 UT 6,
¶ 11, 459 P.3d 1005 (cleaned up). In short, “expert testimony is
Lane Assocs., LP v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000)
(stating that if a “witness is unable to give useful information he
is no more present for the deposition than would be a deponent
who physically appears for the deposition but sleeps through it,”
and that “producing an unprepared witness is tantamount to a
failure to appear” for a deposition and is “sanctionable under
Rule 	37(d)” 	(cleaned 	up)); 	Eid 	v. 	Koninklijke 	Luchtvaart
Maatschappij NV, 310 F.R.D. 226, 228 (S.D.N.Y. 2015) (stating that
courts may “treat the production of an unprepared . . . witness as
tantamount to a failure to appear,” as long as “the inadequacies
in a deponent’s testimony [are] egregious and not merely lacking
in desired specificity in discrete areas” (cleaned up)).

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20240219-CA 	15 	2026 UT App 120
necessary in cases where the jury would be unable to determine
the applicable standard of care without resorting to speculation.”
Callister, 2014 UT App 243, ¶ 15. “An appellate court reviews a
district court’s conclusion that expert testimony is required for
correctness.” Clifford P.D. Redekop Fam. LLC v. Utah County Real
Est. LLC, 2016 UT App 121, ¶ 10, 378 P.3d 109.
1. 	Negligence Claim—Bouncer’s Conduct11
¶30 	Gallegos had designated Expert to testify about “generally
accepted security protocols” and to opine that Bouncer “was
negligent in his application of [the] procedures for physically
removing [Gallegos] from the premises.” After the district court
excluded Expert as a sanction for the inappropriate behavior at
Expert’s 	deposition, 	see 	supra 	Part 	II, 	Brewski’s 	moved 	for
summary judgment. It asserted that Gallegos could not meet his
burden of proof on his vicarious liability negligence claim against
Brewski’s based on Bouncer’s conduct without expert testimony
to establish the appropriate standard of care for what a bouncer
“should or should not do.” In opposing the motion for summary
judgment, Gallegos argued that no expert witness testimony was
required because “the act of negligence alleged by [Gallegos] is
that [Bouncer] caused [Gallegos] to trip” and a 	jury could
“understand it is unreasonable to trip someone.”
¶31 	The district court agreed with Brewski’s that Gallegos was
required 	to 	present 	expert 	testimony 	to 	establish 	“what 	a
reasonable bouncer should have done under the . . . circumstances
and whether [Bouncer] breached that standard.” In reaching that
conclusion, the district court determined “an average layperson
would typically not know whether a bouncer can, or should,
remove someone from the premises of the business,” nor would
they know “what level of force is reasonable,” know “when a
11. Part III.A.1. is the dissenting opinion of Judge Oliver. The
majority opinion on this issue appears in paragraphs 54–63.

Gallegos v. Brewski’s
20240219-CA 	16 	2026 UT App 120
bouncer should use only verbal warnings with an unruly patron,”
know “when physical force might be justified,” or “understand
proper holds and techniques to ensure minimal injuries to a
person being removed from the premises.”
¶32 	On appeal, Gallegos asserts the district court erred in
concluding he needed an expert witness on the standard of care
and on breach of that standard because this case is simply a
question of whether it was reasonable for Bouncer to “trip”
Gallegos on his way out the door of Brewski’s.12 The essence of
Gallegos’s argument is that this case involves a “simple dispute”
about “who stepped on whose foot,” so a jury could easily decide
whether Bouncer acted reasonably. I disagree.
¶33 	“[I]n a typical negligence case we ask a jury of reasonable
people to draw upon their collective expertise to conclude how a
reasonable person would have acted in that circumstance.” Gables
at Sterling Vill. Homeowners Ass’n, Inc. v. Castlewood-Sterling Vill. I,
LLC, 2018 UT 04, ¶ 57, 417 P.3d 95. Were this a simple physical
altercation between bar patrons, “a jury of reasonable people
[could] draw upon their collective expertise to conclude how a
reasonable 	person 	would 	have 	acted 	in 	that 	circumstance.”
Duennebeil v. Paramount Fin. Servs., Inc., 2025 UT App 141, ¶ 10,
579 P.3d 784 (cleaned up). But this is not such a simple case. The
situation here involves a bouncer physically removing an unruly
patron from a bar using specialized techniques. This is neither a
“professional task [that] is so common [n]or [an] alleged breach
12. This was not Gallegos’s original theory of the case. He
designated 	Expert 	to 	offer 	opinions 	on 	“generally 	accepted
security protocols” and to testify that Bouncer “was negligent in
his application 	of 	[the] 	procedures for 	physically 	removing
[Gallegos] from the premises.” It was not until after the district
court excluded Expert’s testimony and Brewski’s moved for
summary judgment that Gallegos shifted to his “tripping” theory
of negligence.

Gallegos v. Brewski’s
20240219-CA 	17 	2026 UT App 120
[that] is so egregious that specialized knowledge is not required
to conclude that the conduct fell below the applicable standard of
care.” Id. (cleaned up).
¶34 	Indeed, the question of what a reasonable bouncer would
do under the circumstances involves more than the final act in the
process of physically removing an unruly bar patron; it includes
numerous decisions along the way. Here, Bouncer made the
decision to (1) intervene when Gallegos was speaking loudly to
the bartender from his table, (2) physically intervene by walking
over to the table and standing behind Gallegos, (3) remove
Gallegos from Brewski’s after observing his behavior toward the
bartender, (4) use physical force by grabbing Gallegos from
behind and carrying him to the exit, and (5) use specialized
techniques—the full nelson—in accomplishing the removal. To
determine whether Bouncer acted negligently in the final moment
of removing Gallegos from the premises, the jury must consider
the reasonableness of each step along the way because each action
Bouncer took that night affected the next, all with a cumulative
impact on the final moment.
¶35 	According to the majority, the jury need only consider
whether Bouncer acted reasonably when he “tripped” Gallegos.
See infra ¶ 63. To do so, the majority acknowledges the district
court 	“would 	of 	course 	need 	to 	strictly 	police 	Gallegos’s
presentation, so as to prevent Gallegos . . . from introducing any
evidence 	or 	argument 	about 	security 	protocols” 	or 	similar
allegations. See infra note 15. While I have the utmost confidence
in our district court bench, this is a task that cannot so easily be
accomplished. In the moment that Bouncer allegedly tripped
Gallegos at the exit, Bouncer was holding Gallegos in a full nelson.
And Bouncer’s decision to use this technique would certainly
affect the jury’s assessment of his reasonableness. After all, if one
person has physical control of the other person, their relative
physical positions would unquestionably affect the determination
of whether one of them acted negligently. Thus, the jury cannot

Gallegos v. Brewski’s
20240219-CA 	18 	2026 UT App 120
determine whether Bouncer acted reasonably when he allegedly
“tripped” Gallegos in the exit without also determining whether
it was reasonable for Bouncer to have placed Gallegos in a full
nelson headlock beforehand as the two actions are inextricably
intertwined, just like the arms of Bouncer and Gallegos in that
moment. So, for the jury to determine who tripped whom at the
exit, 	the 	jury 	necessarily 	would 	have 	to 	consider 	the
reasonableness of 	Bouncer’s actions leading 	up 	to 	that 	last
moment in an interaction that began minutes before and in a
different part of the bar.
¶36 	Put simply, Bouncer removing Gallegos from the bar
involved a series of decisions and actions in a continuous event
where each decision affected the next. Whether Bouncer acted
reasonably in making each of these decisions—both individually
and collectively—“is not a question that a lay person can answer.”
Clifford P.D. Redekop Fam. LLC v. Utah County Real Est. LLC, 2016
UT App 121, ¶ 20, 378 P.3d 109; see also id. (holding expert
testimony was required for the question of the correct square
footage calculation in a commercial real estate dispute “even
though [lay] persons would likely be able, without an expert’s
help, to find a tape measure and a friend and measure the square
footage of their own living room”). Without expert testimony,
jurors would be “left to their own devices, [and] would be forced
to speculate about how a reasonable [bouncer] would act, and
about whether [Bouncer] failed to conform to that standard” in
his series of interactions with Gallegos. Jenkins v. Jordan Valley
Water Conservancy Dist., 2013 UT 59, ¶ 21, 321 P.3d 1049; see also
id. (holding expert testimony was required to establish the
standard of care for replacing broken pipe). And jurors are not
permitted to engage in such speculation “on matters of duty,
breach, or otherwise.” Id.
¶37 	The majority relies on our court’s decision in Collins v. Utah
State Developmental Center, to support its conclusion that an expert
is not required for Gallegos’s “tripping” theory. 1999 UT App 336,

Gallegos v. Brewski’s
20240219-CA 	19 	2026 UT App 120
992 P.2d 492; see infra ¶¶ 57–59. But Collins involved a very
different type of activity. In Collins, the guardian of an adult with
intellectual disabilities sued the care center where she lived for
negligence, asserting that the center acted negligently when it
failed to protect her “from a swing injury.” 1999 UT App 336,
¶¶ 4, 8. The guardian argued that the center “was negligent in
failing to take the necessary safety precautions for this very
common recreational activity.” Id. ¶ 9. Here, Gallegos argues that
Bouncer was negligent in the course of his employment at
Brewski’s for “tripping” him as Bouncer was removing him from
the premises because he was an unruly patron. In contrast to
playing on swings—an admittedly common activity that most
people have enjoyed at some point in their lives—very few people
have removed an unruly patron from the premises of a bar while
holding the person in a full nelson or have themselves been the
person 	removed 	under 	those 	same 	circumstances. 	The 	two
activities are simply not comparable. Thus, I do not find Collins
instructive here.
¶38 	I would affirm the district court’s determination that the
question 	of 	whether 	Bouncer 	acted 	reasonably 	in 	allegedly
“tripping” Gallegos while removing him from the bar is not
within the knowledge and experience of a lay juror and requires
expert testimony.
2. 	Negligent Hiring, Training, and Supervision Claim
¶39 	On Gallegos’s direct liability claim that Brewski’s was
negligent in the hiring, training, and supervision of its employees,
the district court also concluded that Gallegos was required to
produce expert testimony “because that knowledge is beyond the
training and experience of an average layperson.” This conclusion
was in error.
¶40 	Our supreme court has held that the “question of what a
reasonable person would do in performing background checks in
hiring 	and 	in 	training 	and 	supervising 	employees 	is 	one

Gallegos v. Brewski’s
20240219-CA 	20 	2026 UT App 120
permissibly 	resolved 	on 	the 	basis 	of 	the 	knowledge 	and
experience of lay persons.” Graves v. N. E. Servs., Inc., 2015 UT 28,
¶ 41, 345 P.3d 619. Therefore, we must reverse the grant of
summary judgment to Brewski’s on Gallegos’s claim of negligent
hiring, training, and supervision.
B. 	Use of Rebuttal Expert in Case-in-Chief13
¶41 	Gallegos argues that once the district court ruled he was
required to produce expert testimony to support his negligence
claim, it should have granted his request to use Rebuttal Expert in
his case-in-chief to meet that requirement. Specifically, Gallegos
argues 	that 	rule 	26(a)(4)(C)(iii) 	of 	the 	Utah 	Rules 	of 	Civil
Procedure 	gives 	courts 	the 	discretion 	to 	allow 	an 	expert
designated as a rebuttal witness to testify in the case-in-chief, and
that the court here abused its discretion by not doing so. We
disagree that the court abused its discretion here.
¶42 	First, the text of rule 26(a)(4)(C)(iii) states, “The court may
preclude an expert disclosed only as a rebuttal expert from
testifying in the case in chief.” Utah R. Civ. P. 26(a)(4)(C)(iii)
(emphasis 	added). 	It 	does 	not 	specifically 	provide 	for 	the
accommodation that Gallegos requested, namely that the court
permit Rebuttal Expert to testify in his case-in-chief. For purposes
of our analysis, however, we assume without deciding that where
the district court may decide to preclude a rebuttal expert from
testifying in the case-in-chief, it may also decide not to preclude
such testimony.
13. While the majority believes this issue is moot because Gallegos
asked to use Rebuttal Expert in his case-in-chief only as an
alternative if the district court (or this court) determined that he
was required to produce expert testimony to prove his case, Judge
Harris’s dissent takes a contrary view. See infra ¶ 64. We therefore
address Gallegos’s challenge to the district court’s denial of his
request.

Gallegos v. Brewski’s
20240219-CA 	21 	2026 UT App 120
¶43 	Second, the text in rule 26(a)(4)(C)(iii) is permissive; it
expressly 	provides 	that 	the 	court 	“may 	preclude 	an 	expert
disclosed only as a rebuttal expert from testifying in the case in
chief.” Id. (emphasis added). The use of the “word ‘may’ is
commonly understood as being one that grants discretionary
power to a court.” North Fork Meadows Owners Ass’n, Inc. v. Dove,
2023 UT App 107, ¶ 19, 537 P.3d 258 (cleaned up). Moreover, a
court’s decision in managing discovery is “a discretionary call,
reviewed only for abuse of discretion.” Berger v. Ogden Reg’l Med.
Ctr., 2020 UT App 85, ¶ 33, 469 P.3d 1127 (cleaned up).
¶44 	Here, the district court concluded that allowing Rebuttal
Expert to testify in Gallegos’s case-in-chief was akin to reopening
discovery long after it had closed and after the trial date had been
set. It noted that while Brewski’s had deposed Rebuttal Expert, it
had done so with the expectation that the testimony would be
presented only in rebuttal to its own expert witness’s testimony.
Brewski’s did not take the deposition of Rebuttal Expert with the
understanding that he would testify in the case-in-chief, and
Brewski’s 	was 	therefore 	only 	“prepared 	to 	cross-examine
[Rebuttal Expert] as a rebuttal witness.”
¶45 	The dissent finds the district court’s reasons for denying
Gallegos’s request “unpersuasive.” See infra ¶ 65. We disagree.
Here, Brewski’s elected to depose Rebuttal Expert and did so in
good faith, believing that Rebuttal Expert was just that, a rebuttal
expert who may or may not testify at trial. Brewski’s also retained
its own expert witness to respond to Expert—not to respond to
Rebuttal Expert—and disclosed their expert’s opinions to counter
Expert’s. Thus, Brewski’s—through no fault of its own—would
have to respond at trial to Rebuttal Expert’s opinions in Gallegos’s
case-in-chief without the benefit of having deposed Rebuttal
Expert for that purpose and without the opportunity for its own
expert to offer opinions in response. We think these reasons are
well taken.

Gallegos v. Brewski’s
20240219-CA 	22 	2026 UT App 120
¶46 	Additionally, Utah’s appellate courts have repeatedly said
that the question on appeal is not whether a different judge would
have reached the same result as the district court but rather,
whether the district court “articulated reasonable bases for its
decision.” Berger, 2020 UT App 85, ¶ 33; see also State v. Cochran,
2019 UT App 92, ¶ 12, 443 P.3d 1269 (holding that “[p]erhaps
another judge might have granted” the motion but “that does not
make it an abuse of discretion for the court to deny the motion”).
Indeed, we have made clear that “so long as the district court
could reasonably decide the question in the manner that it did, we
will affirm even if we or another court might have made a
different decision in the first instance.” England Logistics, Inc. v.
Kelle’s Transp. Serv., LLC, 2024 UT App 137, ¶ 59, 559 P.3d 45
(cleaned up). And even where “we think the [district] judge made
the wrong call,” we will affirm if the decision was “a discretionary
. . . one that was within the broad range of discretion entrusted”
to the district court. Gunn Hill Dairy Props., LLC v. Los Angeles
Dep’t of Water & Power, 2015 UT App 261, ¶ 24, 361 P.3d 703
(Orme, J., concurring).
¶47 	So, regardless of whether any of us would have made the
same decision the district court did here, the court provided
reasonable bases for its decision and acted within its broad
discretion 	in 	precluding 	Rebuttal 	Expert 	from 	testifying 	in
Gallegos’s case-in-chief.
C. 	Untimely Summary Judgment Motion
¶48 	Finally, 	Gallegos 	argues 	the 	district 	court 	erred 	in
considering Brewski’s motion for summary judgment because it
was filed “more than eight months past the end of all discovery.”
Rule 56(b) of the Utah Rules of Civil Procedure provides that
“[u]nless the court orders otherwise, a party may file a motion for
summary judgment at any time no later than 28 days after the
close of all discovery.” The pertinent language here is “[u]nless

Gallegos v. Brewski’s
20240219-CA 	23 	2026 UT App 120
the court orders otherwise.” Id. This language plainly allows
courts discretion to permit motions outside of this timing.
¶49 	The district court addressed the untimely nature of the
summary judgment motion in its order. Specifically, the court
concluded that the basis for the summary judgment (the exclusion
of Expert) did not occur until long after the close of discovery so
it was not possible for Brewski’s to have filed the motion in
compliance with rule 56(b). Additionally, the court found that
Gallegos’s petition for an interlocutory appeal of the sanction
excluding 	Expert—which 	was 	denied—contributed 	to 	the
lateness of the summary judgment motion. We see no error in the
district court’s application of rule 56(b). The facts giving rise to the
motion for summary judgment arose after the deadline set forth
in rule 56(b). And the rule expressly permits the district court to
allow motions for summary judgment after the deadline. Id.
Accordingly, we affirm the district court’s decision to consider
Brewski’s motion for summary judgment.
CONCLUSION
¶50 	We affirm the district court’s imposition of sanctions
against Brewski’s for the spoliation of the Footage and against
Gallegos for failing to timely complete Expert’s deposition. We
affirm the district court’s decision to allow the untimely summary
judgment motion. We reverse the grant of summary judgment on
Gallegos’s negligent hiring, training, and supervision claim. And,
as explained in a separate opinion below, a majority reverses the
grant of summary judgment on Gallegos’s negligence claim,
concluding that expert testimony is not required. We thus remand
this 	case 	for 	further 	proceedings 	in 	accordance 	with 	the
controlling portions of this opinion and the separate opinion.

Gallegos v. Brewski’s
20240219-CA 	24 	2026 UT App 120
HARRIS, Judge (concurring in part, authoring the Opinion of the
Court as to the issue in Part III.A.1., which Orme, J., joined, and
dissenting as to Part III.B.):
¶51 	I join Parts I and II of the lead opinion in full. I agree that
the district court did not abuse its discretion in sanctioning
Brewski’s with a negative inference instruction. And I agree
that—given 	the 	truly 	remarkable 	behavior 	by 	Expert 	and
Gallegos’s counsel at the scheduled deposition—the court did not
abuse its discretion by forbidding Expert from testifying at trial.
¶52 	Furthermore, I join Parts III.A.2 and III.C in full. I agree
that, pursuant to Graves v. North Eastern Services, Inc., 2015 UT 28,
345 P.3d 619, expert testimony is not required in order to support
Gallegos’s direct liability claim for negligent hiring. And I agree
that the court did not abuse its discretion in overruling Gallegos’s
timeliness-based 	objection 	to 	the 	court’s 	consideration 	of
Brewski’s summary judgment motion.
¶53 	I part ways with the lead opinion in only two respects.
First, Judge Orme and I disagree with the lead opinion’s analysis
in Part III.A.1 because, in our view, expert testimony is not
required in order to support Gallegos’s now-narrowed vicarious
liability negligence claim. And second, I disagree with the lead
opinion’s analysis in Part III.B because, in my view, the district
court should have allowed Gallegos the opportunity to prove his
case-in-chief through testimony from Rebuttal Expert, and the
court 	should 	afford 	Gallegos 	that 	same 	opportunity—if
requested—in any trial that takes place on remand. I discuss these
two issues in turn.

Gallegos v. Brewski’s
20240219-CA 	25 	2026 UT App 120
I. Expert Testimony Regarding Gallegos’s
Narrowed Vicarious Liability Claim14
¶54 	The lead opinion correctly sets forth the legal standard
applicable in this situation: “In cases where the standard of care
is usually not within the common knowledge of the lay juror,
testimony from relevant experts is generally required.” Callister v.
Snowbird Corp., 2014 UT App 243, ¶ 12, 337 P.3d 1044 (cleaned up);
see supra ¶ 29. And we agree with the lead opinion that, as
Gallegos described the gravamen of his vicarious liability claim
prior 	to 	the 	district 	court’s 	order 	excluding 	Expert, 	expert
testimony would have been required to prove significant parts of
it. Indeed, in his designation of Expert, Gallegos indicated that his
case depended, in large part, on proving that “there are generally
accepted security protocols” that businesses must follow and that
employees 	of 	Brewski’s 	had 	“failed 	to 	follow 	the 	proper
protocols.” As Gallegos described at least that part of his case, it
depended on evidence—namely, the existence and breach of
“generally accepted security protocols”—that are not within the
common knowledge of lay jurors. We therefore agree that after
the district court excluded Expert’s testimony from trial, Gallegos
had no way to prove the part of his case-in-chief that depended
upon demonstrating the existence and breach of such security
protocols. And we also agree that, as to that discrete portion of his
vicarious liability claim, summary judgment in Brewski’s favor
was 	appropriate 	once 	Expert 	was 	excluded 	(assuming, 	for
purposes of this part of the discussion, that either (a) Rebuttal
Expert remains excluded from testifying in Gallegos’s case-in-
chief or (b) Rebuttal Expert doesn’t have anything to say about
security protocols in any event, see infra Part II).
¶55 	But in this case, as in many cases, there is more than one
way to prove negligence; indeed, in response to Brewski’s motion
14. Judge Orme joins this section of the separate opinion, and
therefore this section represents the majority view of the court.

Gallegos v. Brewski’s
20240219-CA 	26 	2026 UT App 120
for 	summary 	judgment, 	Gallegos 	argued 	that 	his 	vicarious
liability negligence claim was broader than just the “breach of
protocols” argument and that he could still prove negligence even
without discussing security protocols. At that point, Gallegos
insisted that “the act of negligence alleged . . . [was] that
[Brewski’s] employee caused [Gallegos] to trip.” And Gallegos
argued that a plaintiff could prove up a case about negligent
tripping without the necessity of presenting expert testimony.
¶56 	We find this argument persuasive. We agree with Gallegos
that expert testimony is not required to support a tort case about
an allegedly negligent trip on the part of a bouncer at a bar.
“Expert testimony is especially considered unnecessary, although
helpful, in cases involving trades or professions that do not
require a high degree of specialized knowledge, as opposed to
trades or professions that do, such as medicine, architecture, and
engineering.” Ortiz v. Geneva Rock Prods., Inc., 939 P.2d 1213, 1217
n.2 (Utah Ct. App. 1997); see also Smith v. Volkswagen SouthTowne,
Inc., 2022 UT 29, ¶ 90, 513 P.3d 729 (“[E]xpert testimony is
required only in cases where the average layperson lacks the
technical or scientific knowledge to determine what a reasonable
person would have done in the defendant’s situation.”). As long
as the discussion isn’t centered on a bouncer’s compliance with
“generally accepted security protocols,” bouncers do not belong
to the sort of specialized profession that generally requires expert
testimony for evaluation of the reasonableness of their behavior;
stated 	another 	way, 	evaluation 	of 	a 	bouncer’s 	behavior 	is
generally not outside the ken of a layperson in the same way
evaluation of a doctor’s or engineer’s behavior would be. While
we are unaware of any caselaw specific to bouncers in this
context, analogous cases suggest that expert testimony is not
required for a jury to be able to evaluate the reasonableness of a
bouncer’s alleged trip of a patron. See, e.g., Smith, 2022 UT 29, ¶ 92
(holding that the jury did not “need[] the help of expert testimony
to determine what a reasonable person should have done in
response to a mandatory stop-sale order”); Graves v. North Eastern

Gallegos v. Brewski’s
20240219-CA 	27 	2026 UT App 120
Servs., Inc., 2015 UT 28, ¶ 41, 345 P.3d 619 (“The question of what
a reasonable person would do in performing background checks
in hiring and in training and supervising employees is one
permissibly 	resolved 	on 	the 	basis 	of 	the 	knowledge 	and
experience of lay persons.”); Collins v. Utah State Developmental
Ctr., 1999 UT App 336, ¶¶ 2–10, 992 P.2d 492 (holding that no
expert was required for a jury to be able to evaluate whether an
employee of a group home was negligent in allowing a resident
with an intellectual disability to use a swing).
¶57 	Collins is particularly instructive here. In that case, a
woman 	with 	an 	intellectual 	disability 	was 	residing 	at 	“an
intermediate care facility” for individuals with such disabilities.
Collins, 1999 UT App 336, ¶ 2. One day, the resident “joined seven
other residents outside to play under the supervision of two staff
members.” Id. ¶ 3. While outside, the resident “went to the swings
and began swinging,” but she later “fell from the swing and was
seriously injured.” Id. The resident’s guardian sued the care
facility for negligence. See id. ¶ 4. The complaint invoked the Utah
Health Care Malpractice Act, “presumably because the [facility
was] a health care provider covered by the Act.” Id. At trial, the
facility “filed a motion in limine seeking to exclude the testimony
of [the plaintiffs’] designated expert witness, . . . who was
prepared to testify regarding the standard of care owed to [the
resident] and a breach of that standard” of care. Id. The trial court
granted that motion and later directed a verdict in the facility’s
favor because, in “the absence of expert testimony, [the plaintiffs]
did not establish the applicable standard of care and a breach
thereof.” Id.
¶58 	On appeal, this court reversed. See id. ¶ 13. We noted that,
to the extent that the plaintiff was assailing the treatment team’s
plan for the resident, expert testimony may well have been
required. See id. ¶¶ 3, 9. But instead, this court appropriately
focused on the plaintiff’s “simpl[e]” contention that the facility
“was negligent in failing to take the necessary safety precautions”

Gallegos v. Brewski’s
20240219-CA 	28 	2026 UT App 120
for swinging in the yard, which we referred to as a “very common
recreational activity.” Id. ¶ 9. We stated that, while the plaintiff
“filed her claim under the Malpractice Act, it [was] clear” from
her allegations that her case “was one of simple negligence,”
asserting 	merely 	that 	the 	facility’s 	employees 	had 	acted
negligently by, for instance, “placing [the resident] on a swing
which did not contain adequate safety devices” and by “failing to
adequately supervise” the resident. Id. Based on these facts, we
held that the plaintiff “did not need expert testimony to establish
the appropriate standard of care and any breach thereof,” because
“[m]ost jurors could easily ascertain the standard of care owed to
[an individual with an intellectual disability] when supervising
her on a swing.” Id. ¶¶ 10–11.
¶59 	Similarly here, while an expert witness would have been
required to support Gallegos’s negligence claim as it concerned
the breach of generally accepted security protocols, no such
witness is required to support Gallegos’s negligence claim as it
concerns the allegation that a bouncer at Brewski’s negligently
tripped him as the bouncer was removing him from the premises.
¶60 	The lead opinion disagrees, on two principal grounds.
First, 	the 	lead 	opinion 	resists 	Gallegos’s 	post-exclusion
characterization of his case as being limited to a negligent trip,
offering its view that “this is not such a simple case.” See supra
¶ 33. But Gallegos is the master of his case, and he gets to describe
it however he wants to. To be sure, now that Expert has been
excluded, Gallegos apparently no longer has the evidence to
support a negligence claim grounded in breach of specific security
protocols. But if he wants to attempt to proceed with a narrower
case, he is entitled to do so. It is not our place to countermand
Gallegos’s own assertion regarding what his case is now about.
Both this court, as well as the district court, must evaluate
Gallegos’s case based on his description and characterization of
how he intends to prove negligence, and we think the lead

Gallegos v. Brewski’s
20240219-CA 	29 	2026 UT App 120
opinion 	oversteps 	by 	inserting 	its 	own 	characterization 	of
Gallegos’s case in place of Gallegos’s.
¶61 	Second, 	the 	lead 	opinion 	seems 	to 	view 	pejoratively
Gallegos’s post-exclusion shift in the characterization of his case,
observing that the “trip” theory “was not Gallegos’s original
theory of the case” and that “[i]t was not until after the district
court excluded Expert’s testimony and Brewski’s moved for
summary judgment that Gallegos shifted to his ‘tripping’ theory
of negligence.” Supra note 12. But even taking the lead opinion’s
factual recitation as accurate—Gallegos resists it—we fail to see
any reason for holding this against Gallegos. Attorneys and
litigants are entitled to react to adverse evidentiary rulings,
including by adapting their legal theories to fit the evidence that
the court will allow. In theory, there is nothing nefarious about
this practice. And in this case, Brewski’s makes no argument that
it was unfairly surprised or prejudiced by the particular change in
theory Gallegos attempts to advance.
¶62 	As noted, we agree that Expert and Gallegos’s attorney
acted poorly in connection with Expert’s deposition, and that the
district court did not abuse its discretion by excluding Expert
from trial. And we also agree that—given the assumptions
referred to earlier, see supra ¶ 54—the court’s exclusion order must
necessarily result in summary judgment in favor of Brewski’s on
Gallegos’s negligence theory that was dependent upon proving a
breach of specific security protocols. These are appropriate and
significant penalties for the improper conduct.
¶63 	But the district court went—and now the lead opinion
would go—too far by imposing an additional penalty on Gallegos:
forbidding him from advancing an alternative negligence theory
that isn’t dependent on expert testimony, from Expert or anyone
else. In our view, the district court’s ruling was unfairly punitive
and unsupported by rule or caselaw and should therefore be

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20240219-CA 	30 	2026 UT App 120
reversed. On remand, Gallegos should be allowed to proceed with
the “negligent trip” version of his vicarious negligence claim.15
II. Use of Rebuttal Expert as an Alternative16
¶64 	Additionally, I disagree with the lead opinion’s analysis in
Part III.B, in which the majority affirms the district court’s ruling
forbidding Gallegos from using Rebuttal Expert in his case-in-
chief. 	In 	my 	view, 	Gallegos 	should 	be 	allowed 	to 	present
testimony from Rebuttal Expert during his case-in-chief if he
wishes, so long as Rebuttal Expert doesn’t stray from (or add to)
the conclusions he offered in his deposition.
¶65 	The district court issued an order precluding Gallegos from
calling Rebuttal Expert as part of his case-in-chief, reasoning that
allowing Rebuttal Expert “to be a case-in-chief witness now
would essentially reopen discovery as [Brewski’s] is prepared to
cross-examine [Rebuttal Expert] as a rebuttal witness, but not as a
case-in-chief witness.” I find this reasoning unpersuasive.
¶66 	As to the district court’s first point, I don’t see how
allowing Rebuttal Expert to testify as a case-in-chief witness
would “essentially reopen discovery.” After Gallegos designated
Rebuttal Expert as a rebuttal witness, Brewski’s opted to depose
Rebuttal Expert rather than ask for a report. And Brewski’s took
15. In any such trial, the court would of course need to strictly
police Gallegos’s presentation, so as to prevent Gallegos—at least
during his case-in-chief, as opposed to rebutting an argument
Brewski’s 	might 	make—from 	introducing 	any 	evidence 	or
argument about security protocols (or other allegations that
would be dependent on expert testimony). But district courts are
certainly capable of enforcing such limits, and we have full
confidence that such a trial could be fairly conducted.
16. This section of the separate opinion contains the views of
Judge Harris alone and thus represents a dissenting opinion.

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20240219-CA 	31 	2026 UT App 120
that deposition, availing itself of the opportunity to ask Rebuttal
Expert about his opinions and the basis for them. Brewski’s thus
knows what Rebuttal Expert is prepared to testify about and is
presumably fully prepared to examine him about those opinions.
¶67 	By asking the court to allow Rebuttal Expert to testify in his
case-in-chief, Gallegos was not—as I understand it—asking for
permission to have Rebuttal Expert testify to anything new or
different from what he had said at his deposition. And notably, at
the 	district 	court 	level, 	Brewski’s 	made 	no 	argument 	that
Gallegos’s request—to have Rebuttal Expert testify in his case-in-
chief—would necessitate a second deposition of Rebuttal Expert
or in any other way require the reopening of discovery. The
district court appears to have come up with that argument
entirely on its own.17 And I see no support for it.
17. Nor did Brewski’s argue, in its district court briefing, that it
would somehow be unprepared to examine Rebuttal Expert were
he to testify as a case-in-chief witness rather than as a rebuttal
witness. The district court appears to have come up with that
argument on its own too. Instead, the argument advanced by
Brewski’s at the district court level—which argument Brewski’s
continues to advance here on appeal—is that allowing Gallegos to
substitute Rebuttal Expert for Expert, as a case-in-chief witness,
would “completely obviate[]” the sanction imposed by the district
court. But this argument wasn’t accepted by the district court,
presumably because the district court saw it as unpersuasive.
After all, the sanction imposed by the district court for Expert’s
(and Gallegos’s attorney’s) bad behavior at the deposition was
exclusion of Expert. That sanction still holds, even if Rebuttal
Expert is allowed to replace Expert in Gallegos’s case-in-chief.
Indeed, it is worth pointing out that, on at least one occasion, our
supreme court has deemed it an abuse of discretion for a district
court to forbid a litigant from obtaining a replacement expert after
(continued…)

Gallegos v. Brewski’s
20240219-CA 	32 	2026 UT App 120
¶68 	As 	for 	the 	district 	court’s 	second 	point—that 	while
Brewski’s was prepared to cross-examine Rebuttal Expert “as a
rebuttal witness,” it was not prepared to do so “as a case-in-chief
witness”—I must confess I don’t understand what that means.
Either you’re prepared to cross-examine a witness about his or her
opinions, or you aren’t. As long as the witness’s opinions don’t
change, an attorney’s level of preparation should be entirely
unaffected by whether a witness testifies at the beginning of the
trial or at the end. There is no question that Brewski’s had fully
deposed 	Rebuttal 	Expert 	about 	his 	opinions 	and 	was 	fully
prepared 	to 	cross-examine 	him 	on 	those 	opinions. 	Neither
Brewski’s nor the district court has explained how or why it
matters to an attorney’s preparation whether a witness testifies as
a 	case-in-chief 	witness 	or 	a 	rebuttal 	witness. 	As 	Gallegos
persuasively argues in his reply brief, “Brewski’s has never
identified any area of testimony that it would be unprepared for
if [Rebuttal Expert] testified during Gallegos’s case-in-chief.”
¶69 	I understand that district courts have discretion in making
discovery 	orders 	such 	as 	this 	one. 	See 	Utah 	R. 	Civ. 	P.
26(a)(4)(C)(iii). But for such orders to pass abuse-of-discretion
muster, there must be at least some sensible reason for them,
whether articulated by the court or apparent from review of the
record. See Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 19, 243 P.3d 1275
(“[W]hen a district court does not provide any reasons for
denying 	leave 	to 	amend, 	the 	denial 	is 	a 	per 	se 	abuse 	of
discretion.”); cf. State v. Ruiz, 2012 UT 29, ¶ 24, 282 P.3d 998 (noting
that a district court’s failure to “give reasons on the record for
discretionary rulings” is excusable “where the basis for [the]
ruling is apparent on the record”). Here, all the reasons articulated
by Brewski’s and the district court are entirely unpersuasive to
me. And in the absence of any solid justification for the order, I
the original expert had been excluded. See Coroles v. State, 2015 UT
48, ¶¶ 25–29, 349 P.3d 739.

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20240219-CA 	33 	2026 UT App 120
have little choice but to conclude that it exceeded the district
court’s discretion.
¶70 	To be sure, if Gallegos were allowed to present testimony
from Rebuttal Expert in his case-in-chief, the district court would
need to ensure that Rebuttal Expert did not stray from the
opinions he discussed in his deposition. And whether Rebuttal
Expert’s testimony alone (and without Expert’s testimony about
protocols) would be enough to support resurrection of Gallegos’s
“violation-of-protocols” theory is unclear to me; this issue has not
been briefed by the parties. But these are issues that are well
within the ken of the district court to handle. I simply see no
reason why Gallegos, on remand, shouldn’t be allowed to at least
try to prove his case-in-chief through use of Rebuttal Expert’s
already-thoroughly-explored opinions.