Colores v State

Colores sued State and several health care providers alleging medical negligence in the death of her husband. In the letter to experts, Colores’ attorney revealed certain opinions stated during the mandatory confidential pre-litigation proceeding. The district court excluded the experts from testifying and excluded the substitute experts from testifying for late designation. It then granted summary judgment to the defendants. The Court reversed. It held that barring the initial experts was incorrect as the controlling statute, Utah Code 78B-3-412(1) does not require exclusion or indeed any sanction and the correct rule in the situation is to strike the confidential information and require the expert to form his opinion only on the nonconfidential information in the case. Exclusion would only be available if the expert could not so form an opinion. The Court noted this is consistent with the federal approach to statutes imposing confidentiality on investigation or other pre-litigation information. As to the substitute experts, the Court held the district court erred in following Utah Court of Appeals precedent holding Rule of Civil Procedure 37 controls because that rule controls concealed evidence while rule 16 controls late disclosures and the Court of Appeals precedent must therefore be overruled. It finally held that exclusion here was inappropriate as the late designation was caused circumstances beyond Colores control, no trial date had been set and any sanction should fall on the attorney not Colores.

Davis & Sanchez, PLLC v University of Utah Health Care

Davis sought attorney fees from Care arguing its representation of a client in a worker’s compensation case resulted in Care receiving monies for care provided and thus under the common fund theory Care owed Davis fees. The district court ruled the claim had to be made before the Utah Labor Department and the Utah Court of Appeals affirmed. Davis did not seek review by the Utah Supreme Court. After losing at the Labor Department and not seeking review of that decision, Davis sued Care again in district court. The district court dismissed based on issue preclusion. The Court affirmed holding issue preclusion applied here as the parties are identical, the issue is identical, Davis received a full and fair opportunity to litigate the issue in eh first case and the decision in that case was final. The Court left open the question of whether the fee claim had to be litigated before the Labor Department.