insurance expertIn Utah, the trial court excluded an expert witness because the attorney missed the expert disclosure deadline in a title insurance case.  As a result, the defendant won a motion for summary judgment because of failure to prosecute and the plaintiff’s inability to prove damages. The case highlights the importance of having an expert witness early on in the litigation. If a litigator is not able to retain an expert, it is important to request for an extension on the expert disclosure date from the court.

Plaintiff, an outdoor sign owner, purchased commercial property in Salt Lake City in 1999. He obtained a title insurance policy. In 2000, the plaintiff tried to sue a company that had a lease on the outdoor sign since the mid–1970s.  The trial court held that the lease was valid and dismissed the case.


In light of the trial court’s ruling, the outdoor sign owner brought a third-party complaint against the title company in 2005, claiming the sign lease constituted a defect or lien insured by title insurance policy. The title company failed to dismiss the case in 2005 and the Plaintiffs didn’t take any action on their claim for over five years. The title company filed a motion to dismiss for failure to prosecute in 2011. The trial court denied the motion and strongly admonished Plaintiffs but told them that failure to timely prosecute would likely result in dismissal with prejudice. The parties agreed to a deadline for expert witness disclosures.

After initiating the cause of action, Plaintiffs took no immediate steps to pursue it. They did not seek an extension of the expert disclosure deadline nor provide expert disclosures by that date. Plaintiffs provided an expert report and the title company moved to strike it as untimely. The trial court granted title company’s motion to strike, motion to dismiss for failure to prosecute, and motion for summary judgment for inability to prove damages.

Plaintiffs appealed and argued that prior to a trial court imposing discovery sanctions under Rule 37, it was required to first find on the part of the noncomplying party “willfulness, bad faith, … fault, or persistent dilatory tactics frustrating the judicial process.” However, Senior Judge of the Court of Appeals of Utah wrote that their argument confused the requirements for an affirmative sanction by the district court under Rule 37(e)(2)] with the exclusion of untimely disclosed experts by operation of law, mandated by Rule 37(h).

The Court of Appeals Judge stated that the courts held that “the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that the violation of rule 26 [governing disclosure of witnesses] was either justified or harmless.” As a result, the judge held that a finding of willfulness wasn’t necessary for the trial court to exclude an untimely disclosed witness. Where it’s undisputed that the expert witness report was not filed on time, he opined, “The proper inquiry is whether the district court abused its discretion in determining that the [party’s] failure to disclose was not harmless and that good cause did not excuse its failure.”

In this case, the judge said that the cases cited by Plaintiffs weren’t compelling and they didn’t move to extend the deadline for expert disclosures. Furthermore, the judge noted the trial court’s warnings and in light of these, he found that continued delays weren’t justified.

The Court of Appeals Judge went on to say that Plaintiffs’ assertion should have been permitted to disregard the deadline because trial had not yet been scheduled “undermine[s] the significance of scheduling orders and the authority of the trial court to establish deadlines.” In addition, he wrote, just because the Plaintiffs couldn’t establish their claim without their expert­—even though devastating to their case—didn’t require the trial court to excuse them from the discovery deadlines, especially where the delay would be harmful to the title company.

Based on this, the Court of Appeals held that the trial court didn’t abuse its discretion by declining to relieve Plaintiffs of the automatic exclusion of their expert pursuant to Rule 37(h).

The trial court was affirmed.

By:  Kurt Mattson, J.D., LLM

20+ Years of Experience in the Legal Industry