Lee v Williams

Lee appealed the dismissal of her complaint on limitations grounds and challenged several other ruling. The panel affirmed in part, reversed in part and remanded for a new trial on the limitations issue. It held the district court properly granted summary judgment on when Lee learned about Williams’ negligence in not treating her for Rh-sensitivity as negligence and injury can be discovered at different times under Utah Supreme Court precedent and Lee was aware more than two years before filing that the failure to treat was negligent based on her internet investigation. It held that the district court erred in submitting a jury instruction allowing a limitations defense to success on possibility of discovery of injury a the law requires proof of knowledge of injury; did not err in not dismissing a juror for cause as mere acquaintance with Williams, his son and a nurse in his practice did not establish bias and Lee’s attorney was given ample opportunity to explore possible bias at voir dire; that the district court erred in excluding medical records concerning giving Lee medicine to prevent Rh-sensitivity as it was relevant to the issue of Lee’s knowledge of injury and there was no risk of undue prejudice or waste of time; and erred when it failed to consider a sanction for Williams’ attorney making ex parte contact with the nurse who helped treat Lee and testified on Williams’ behalf as the contact involved the substance of this case even if it did not result in disclosing confidential information and as such the contact was prohibited by Utah Supreme Court precedent and analysis of whether a sanction should be imposed is required in this context. It held the instruction error and exclusion of the records error undermine confidence in the outcome here and remanded for a new trial.

Vered v Tooele Hospital Corporation et al.

Tooele brought an interlocutory appeal of an order to turn over certain documents in discovery. The panel affirmed. It held that Tooele only raised the care review privilege and thus the peer review privilege was not proven below. It held the care review privilege can be invoked on proof that a document was specifically prepared for the statutorily protected care review process. It held the district court d not find either a waiver of privilege or that an affidavit was needed to raise the privilege but held there was a lack of proof the privilege applied as the privilege log submitted did not suggest even a possibility the privilege applied. It noted the requirement for a privilege log in Rule of Civil procedure 26(b)(8)(a) is not new and in camera review is not required when the party claiming privilege failed to present evidence the privilege applies. It finally held that the issues involved here were ripe as Tooele failed to meet the standard to prove the care review privilege, admitted the log was inadequate, never raised the meet and confer requirement as a reason to deny and there is no expectation a judge will grant the claiming party more than the required one opportunity to produce a correctly prepared privilege log.

State v Aziz

Aziz appealed his aggravated assault and intoxication convictions. The panel affirmed. Declining to address Aziz’s claims about the inaccuracies in the interpretation of a defense witness’ testimony due to the district court not making any findings about the interpreter’s performance, the panel affirmed on this issue as witness did not see the bite which formed the factual basis for the assault conviction, Aziz gave a statement to police admitting voluntarily biting the security guard and not did not explain how he could have bitten the guard in the face if the guard grabbed him from behind and thus there was no prejudice from any error. It held there was no ineffective assistance of counsel in not objecting the translation as the witness’ testimony was consistent with his preliminary hearing testimony which did not use the asserted description of Aziz being strangled or choked. It finally held there was no error in not allowing a witness to testify as to whether the bite wound was defensive in nature as the witness admitted not being an expert in that field. In a footnote, the panel suggested that litigants may want to use the Nevada approach in situations involving challenges to an interpreter’s performance, but did not adopt the approach as Utah law.

Kahn v Tax Commission

Kahn sought review of commission’s decision rejecting his attempt to deduct certain loses from his income. The panel affirmed holding Kahn’s argument had been rejected in the appeal of a Commission decision also rejecting his attempt to deduct in a prior tax year.