SALT LAKE CITY (Legal Newsline) – Testimony prejudiced a construction company sued after a worker fell because a sleeping driver took out his ladder.
That was the ruling of the Utah Supreme Court on Aug. 17, reversing a jury verdict that found Hadco Construction 40% liable for the injuries of Noe Arreguin-Leon.
The worker was hurt while installing an exit sign on Interstate 15. Hadco was responsible for implementing a traffic control plan, pursuant to its contract with the Utah Department of Transportation.
But a sleeping driver veered off the road and into the ladder on which Arreguin-Leon was standing, causing him to fall.
At trial, the plaintiff’s expert Bruce Reading on traffic control standards testified. He was asked what impact a correctly installed buffer would have if a driver veered off the road and toward the work zone.
Hadco’s lawyers objected, claiming the answer would go toward causation. They told the trial judge the answer “goes beyond any opinion that he’s ever disclosed in this case.”
Arreguin-Leon’s lawyers noted that the defendants chose to depose Reading rather than have him file an expert report – if they “had elected a report, he would be limited to the contacts of the report, but because a deposition has been elected, Mr. Reading is not so limited.”
The trial judge sided with the plaintiffs. Reading testified that a safety plan might not have prevented an accident but it would have kept it from happening where it did.
The Court of Appeals decided the trial judge made the wrong choice to allow the expert to answer the question and that it prejudiced the jury. The Supreme Court agreed.
“Arreguin’s counsel did not put the contents of the disclosures or deposition at issue by asserting that a causation opinion had in fact been disclosed at some point or that Hadco had not properly ‘locked in’ Reading at his deposition and therefore he was free to offer new opinions at trials,” Justice Paige Petersen wrote.
“Rather, Arreguin made a very broad assertion to the district court that if a party opponent elects to depose an expert witness, then the expert witness is not limited during trial testimony. This is an incorrect interpretation of rule 26(a)(4)(b), which the district court should have rejected.”