UTAH SUPREME COURT DEFINES WHAT IT MEANS TO BE A "RETAINED OR SPECIALLY EMPLOYED" EXPERT PURSUANT TO RULE 26(b) OF THE UTAH RULES OF CIVIL PROCEDURE
Posted by: Susan Patterson
July 19, 2011

In Drew v. Lee, 2011 UT 15 (March 15, 2011), the Utah Supreme Court interpreted Rule 26 of the Utah Rules of Civil Procedure with respect to what it means to be "retained or specially employed to provide expert testimony." Utah R. Civ. P. 26(a)(3)(B). The issue was whether the trial court properly excluded plaintiff's treating physician who offered opinions on causation of injury when the physician did not provide a written report with those opinions as required by Rule 26. The Supreme Court first distinguished Pete v. Youngblood, which requires a party to designate an expert witness prior to trial, on the grounds that the issue before it was not a question of designation but rather on whether an expert report was required. Because plaintiff had properly designated his treating physician as an expert witness, the Court held that Pete did not answer the question. See id. at ?15. Interpreting the language of Rule 26, the Court determined that Rule 26 contemplates two classes of experts: those who are retained or employed specifically for litigation and those who are not. See id. at ?18. In determining whether an expert was retained or employed for purposes of litigation, the Court discussed that other jurisdictions follow either the substance-based approach or the status-based approach. The majority approach uses a substance-based approach which examines the substance of the expert's testimony; however, the Court noted this approach often produces varying results as it necessarily involves a case-by-case analysis. See id. at ?22. Rejecting the substance-based approach, the Court adopted the status-based approach because of its ease of application. As applied to treating physicians, this approach creates two categories: "(1) physicians the party visited for purposes of medical treatment ("treating physicians") and (2) other physicians who are 'specially retained or employed' for purposes of litigation." Id. at ?23. Those physicians a party seeks out for medical treatment are not retained or employed for purposes of litigation, and thus, they are not required to produce an expert report.

Permalink

New Mexico Jury Verdict Against Swift Transportation Upheld by 10th Circuit
Posted by: Nathan S. Morris
August 19, 2010

The law firm of Richards Brandt Miller Nelson has a long history of representing the interests of trucking companies, truck drivers, and the insurance companies who insure them. In a recent case entitled Frederick v. Swift (issued on August 10, 2010), the 10th Circuit affirmed a New Mexico jury verdict in favor of the Plaintiffs for a total of $23,500,000. That amount was reduced to $15,275,000 due to plaintiffs' comparative fault. Though the injury claims are unspecified, the jury award included $4 million in loss of consortium damages. Our trucking clients and insurance clients should be aware of the following holdings by the 10th Circuit Court:

(1) Course and scope of employment: A driver who consumed methamphetamines was "engaged in her employer's business with the view of furthering her employer's interest" and was therefore acting within the scope of her employment;

(2) Under the doctrine of respondeat superior, "Swift is liable for all the negligent behavior of its employee, which includes violations of the FMCSR," despite Swift's argument that "these regulations apply to drivers and not employers." (The jury was instructed that if it found, Swift's driver violated any one of several FMCS regulations, "then the driver's conduct constitutes negligence as a matter of law.");

(3) Although a court should ordinarily grant an employer summary judgment on claims for negligent entrustment, hiring, and retention when the employer admits the applicability of respondeat superior, a plaintiff may be allowed to continue pursuing these claims when the plaintiff "has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee." (The court considered issues unique to New Mexico);

(4) The trial court allowed evidence of prior convictions, drug use, license suspensions, and failures on different portions of the necessary licensing exams; and

(5) The trial court did not err in providing a jury instruction that Swift would be negligent if it "failed to use ordinary care in promoting its driver to [a more difficult cross country fleet that involved important clients, increased pay, and provided drivers with the best miles]."

There are other issues that the opinion addresses, including the court's Daubert gate keeping responsibilities and seatbelt issues unique to New Mexico statutory law. Feel free to contact a lawyer at Richards Brandt Miller Nelson for questions about this case or if we can assist you or your business in any way.

Attachments:
frederickvswift_20100812091953.pdf
Frederickv.Swift(VerdictSummary).pdf

Permalink