2020 UT App 85

THE UTAH COURT OF APPEALS

ROBERT BERGER, JACK BERGER, AND THE ESTATE OF BONNIE BERGER,

Appellants,

v.

OGDEN REGIONAL MEDICAL CENTER, MOUNTAINSTAR HEALTH 

CARE, MOUNTAINSTAR CARDIOVASCULAR, JOSEPH GRAHAM,

DANIEL J. GREENBERG, AND D. SCOTT STANLEY,

Appellees.

Opinion

No. 20190206-CA

Filed June 4, 2020

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 140904377

Brett D. Cragun, Attorney for Appellants

Eric P. Schoonveld, and Justin W. Pendleton,

Attorneys for Appellees Ogden Regional Medical 

Center, and Mountainstar Health Care

Christian W. Nelson, Brandon B. Hobbs, and Sean C. 

Miller, Attorneys for Appellees Joseph Graham, and 

Mountainstar Cardiovascular

Brian P. Miller, Christopher W. Droubay, and 

Nathanael J. Mitchell, Attorneys for Appellees Daniel 

J. Greenberg and D. Scott Stanley

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

POHLMAN, Judge:

¶1 In this medical malpractice case, Robert Berger, Jack 

Berger, and the Estate of Bonnie Berger (collectively, the Bergers) 

appeal the district court’s summary judgment in favor of Ogden 
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Regional Medical Center, Mountainstar Health Care, 

Mountainstar Cardiovascular, Joseph Graham, Daniel J. 

Greenberg, and D. Scott Stanley (collectively, Defendants). The 

Bergers contend that the district court erred in rejecting their 

effort to rely on the doctrine of res ipsa loquitur, in denying their 

request to extend the expert discovery deadlines, and in granting 

summary judgment to Defendants on the ground that they had 

not designated any expert witnesses and thus could not establish 

their medical malpractice claim. We affirm.

BACKGROUND1

¶2 On May 31, 2011, Bonnie Berger underwent robotic lung 

surgery at Ogden Regional Medical Center under Defendants’

care. The purpose of the surgery was to evaluate her for 

non-small cell carcinoma and to remove the lower lobe of one 

lung. During the surgery, Bonnie2 developed possible arterial 

bleeding, became hypotensive, and suffered an anoxic brain 

injury. She emerged from surgery unresponsive and died a week 

later.

¶3 The Bergers filed a medical malpractice lawsuit against 

Defendants in 2014. In their complaint, the Bergers alleged that 

Defendants had deviated from the standard of care in the 

following ways:

 

1. When reviewing the grant of summary judgment, “this court 

views the facts in a light most favorable to the losing part[ies] 

below”—here, the Bergers. See Goodnow v. Sullivan, 2002 UT 21, 

¶ 7, 44 P.3d 704 (cleaned up).

2. Where relevant individuals share the same last name, we refer 

to them by their first names, with no disrespect intended by the 

apparent informality.
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a. Improper preparation took place prior to 

surgery;

b. Surgical and anesthetic management were not 

properly attentive and responsive to changes in 

[Bonnie’s] hemodynamic status;

c. The resuscitation efforts were not timely given 

the significant loss of blood volume from the 

bleeding artery, there was a lack of readily 

available replacement blood, and there was not 

proper intravenous access to reestablish the 

patient’s blood volume.

d. There is [a] question regarding the continuity of 

care regarding whether the primary anesthesia 

provider was present in the operating room at the 

time [Bonnie] began to decline and/or whether 

there was proper transfer of care of the patient 

from the primary anesthesia provider to his 

replacement; and

e. Other deficiencies which may be noted after 

proper discovery.

¶4 Over the course of the next three years, the parties 

stipulated to extending the discovery deadlines seven times, 

which the district court allowed in each instance. Fact discovery 

finally closed on February 22, 2018. The Bergers’ deadline to 

disclose the identity of any expert witnesses was one week later, 

on March 1, 2018.

¶5 The day before the deadline, the Bergers moved for more 

time to disclose their expert witnesses. In support of their 

motion, the Bergers asserted that, as a result of fact discovery, 

they “believe[d] the injury sustained by Bonnie Berger . . . was of 

a type that did not occur in the absence of negligence and 
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therefore expert testimony may not be necessary in this case 

under the doctrine of res ipsa loquitur.” The Bergers stated their 

intention to file a separate motion asking the court to determine 

whether res ipsa loquitur applied to the facts of the case, and 

they urged the court to extend the expert deadlines “until the 

determination regarding the applicability of res ipsa loquitur is 

reached.” If res ipsa loquitur applied, the Bergers asserted, the 

parties could “avoid the time and expense” of unnecessary 

discovery. On the other hand, if res ipsa loquitur did not apply, 

the parties could “proceed with expert discovery in the normal 

course.”

¶6 On March 7, 2018, the Bergers filed a motion asking the 

court to determine whether there was adequate foundation for a 

jury instruction on the doctrine of res ipsa loquitur. See generally

Model Utah Jury Instructions 2d CV327 (2018). In so doing, the 

Bergers moved from the specific theories set out in their 

complaint to a much more generalized theory premised on the 

doctrine. According to the Bergers, res ipsa loquitur applied to 

the facts of the case because Bonnie’s injury “was of a kind 

which in the ordinary course of events, would not have 

happened had [Defendants] used due care,” and the jury 

therefore could infer Defendants’ fault without the need for 

expert testimony. The Bergers argued that “it is within the 

knowledge and experience of laypersons that a person with a 

healthy brain does not usually go into the operating room for 

lung surgery and emerge with a brain injury without some 

occurrence of negligence.” They further argued that “[t]here is 

no need for an expert to explain what is readily within the 

knowledge of laypersons” and that the burden should shift to 

Defendants to show that they were not negligent.

¶7 Defendants opposed the Bergers’ request for a res ipsa 

loquitur jury instruction. Disagreeing with the Bergers’ position 

that it would be common knowledge that Bonnie’s injury would 

not have occurred absent negligence, Defendants asserted that 
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“[n]one of the issues in this case are within the common 

knowledge of lay jurors,” including “non-small cell carcinoma, 

robotic surgery, anesthesia techniques, and hospital blood 

procedures and administration.” As a result, Defendants 

asserted, res ipsa loquitur had no application to the case and the 

Bergers were subject to the general rule that expert testimony is 

required to establish a medical malpractice claim. In the 

meantime, Defendants disclosed their own experts.

¶8 Defendants also opposed the Bergers’ motion to extend 

the expert discovery deadlines, arguing that no good cause 

existed to justify an extension. Defendants asserted that the 

Bergers had known the facts underlying the motion “for months, 

if not years,” and that the Bergers “should have either 

designated experts or simply expressed their intention to rely on 

the doctrine of res ipsa loquitur.” Noting that “designating 

experts would not necessarily preclude them from relying on the 

doctrine,” Defendants characterized the Bergers’ motion as an 

attempt to have the court “decide for them if they should 

designate experts” and asserted that the Bergers “should not get 

an extension just in case they are wrong” about the applicability 

of res ipsa loquitur.

¶9 After hearing oral argument on the issue of res ipsa 

loquitur, the district court denied the Bergers’ motion for a jury 

instruction on the doctrine. The court agreed with Defendants, 

ruling that “this is not the type of case where a layman could 

determine whether the event causing the damage is of a type 

that ordinarily would not happen except for someone’s 

negligence” and that the doctrine of res ipsa loquitur therefore 

was inapplicable. (Cleaned up.)

¶10 Thereafter, Defendants moved for summary judgment, 

asserting they were entitled to judgment as a matter of law. They 

argued that because the Bergers had not timely disclosed any 

experts, the Bergers would be unable to meet their burden at 
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trial to establish, by expert testimony, the elements of their 

claim, including the applicable standard of care, a breach of that 

standard, and causation.

¶11 In opposing Defendants’ motion, the Bergers countered 

that they had timely moved to extend the discovery deadlines 

before their expert designations were due and that their motion 

remained pending. The Bergers also explained that, while not 

seeking to delay the case, they had pursued their res ipsa 

loquitur theory to see if it could “eliminate or refine the need for 

expert discovery . . . and potentially expedite the disposition” of 

the case. They further argued that Defendants had not been 

harmed by, and the Bergers had not gained advantage from, the 

fact that Defendants were the first to designate expert witnesses. 

The Bergers also maintained that good cause existed to extend 

the expert discovery deadlines. Yet they conceded that if the 

court did not allow them additional time to designate expert 

witnesses, they would be without expert testimony and 

Defendants would be entitled to summary judgment.

¶12 The court heard oral argument on the pending motions 

and entered rulings. First, it denied the Bergers’ motion to 

extend the discovery deadlines, explaining that rule 26 of the 

Utah Rules of Civil Procedure requires that “if a party fails to 

designate a witness by the appropriate deadline, that party may 

not be permitted to use that witness at trial.” The court then 

found that the Bergers’ undisputed failure to designate experts 

by the March 1, 2018 deadline was “not harmless because it 

precipitated Defendants disclosing their expert information out 

of sequence, and without the benefit of the information to which 

they are entitled under Rule 26(a)(4)(C).” It also found that the 

Bergers’ failure to disclose experts “was not the result of good 

cause.” According to the court, the Bergers “had every 

opportunity to designate their experts and they simply failed to 

do so.” Bonnie’s surgery “happened seven years” before, the 

lawsuit itself had been “pending for over four years,” and there 
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had been “a number of extensions for discovery deadlines.” 

Although the Bergers elected to proceed under a res ipsa 

loquitur theory of liability, the court reasoned that their 

“decision to proceed in such a manner did not obviate the 

requirement to designate expert witnesses by the appointed 

deadline.” Under these circumstances, the court decided that 

rule 26 “mandate[d] the exclusion of [the Bergers’] experts at this 

point in the case.”

¶13 The court then granted Defendants’ motion for summary 

judgment. It explained that because it had previously ruled that 

res ipsa loquitur was inapplicable, the Bergers “must present 

their case to the jury via qualified medical experts to opine on 

the applicable standard of care, a breach of that standard and 

causation.” Because the Bergers could not “present any disputed 

issue of material fact as to any element of their prima facie case 

in the absence of expert testimony,” Defendants were entitled to 

summary judgment. The Bergers appeal.

ISSUES AND STANDARDS OF REVIEW

¶14 The Bergers advance three issues on appeal. First, they 

contend that the district court erred when it ruled that they 

failed to establish a prima facie case of res ipsa loquitur and 

declined to instruct the jury on the doctrine. “[W]hether a 

plaintiff has established the requisite foundation for a res ipsa 

loquitur instruction is a question of law.” Walker v. Parish Chem. 

Co., 914 P.2d 1157, 1161 (Utah Ct. App. 1996). We review a 

district court’s resolution of a question of law for correctness. See 

Pilot v. Hill, 2019 UT 10, ¶ 9, 437 P.3d 362.

¶15 Second, the Bergers contend that the district court erred in 

denying their motion to extend the expert discovery deadlines. 

“Trial courts have broad discretion in managing the cases before 

them and we will not interfere with their decisions absent an 

abuse of discretion. When reviewing a district court’s exercise of 
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discretion, we will reverse only if there is no reasonable basis for 

the district court’s decision.” Callister v. Snowbird Corp., 2014 UT 

App 243, ¶ 9, 337 P.3d 1044 (cleaned up).

¶16 Third, the Bergers contend that the district court erred in 

granting summary judgment to Defendants. Summary judgment 

is appropriate “if the moving party shows that there is no 

genuine dispute as to any material fact and the moving party is 

entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). 

We review the district court’s decision to grant summary 

judgment for correctness. Ruiz v. Killebrew, 2020 UT 6, ¶ 7, 459 

P.3d 1005.

ANALYSIS

I. Res Ipsa Loquitur

¶17 The Bergers contend that the district court erred when it 

ruled that they “did not establish a prima facie case for res ipsa 

loquitur and further erred when it failed to approve the 

proposed jury instruction.” The Bergers’ contention hinges on 

their assertion that Bonnie’s injury “was of a kind that, in the 

ordinary course of events, would not have happened if due care 

had been observed.” This assertion, in turn, rests on the premise 

that “it is within the knowledge and experience of laypersons 

that a person with a healthy brain does not usually go into the 

operating room for routine lung surgery and emerge with a 

brain injury that causes death without some occurrence of 

negligence.” For the reasons below, we reject the Bergers’ 

position and conclude that the district court correctly ruled that 

res ipsa loquitur is inapplicable to this case.

¶18 To prevail on a claim of medical malpractice, “a plaintiff 

must prove four elements: (1) the standard of care required 

of health care providers under the circumstances; (2) breach 

of that standard by the defendant; (3) injury proximately 
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caused by the breach; and (4) damages.” Morgan v. Intermountain 

Health Care, Inc., 2011 UT App 253, ¶ 8, 263 P.3d 405. “To 

establish the standard of care required of a physician in 

a particular field, breach of that standard, and proximate 

cause, the plaintiff is generally required to produce an expert 

witness who is acquainted with the standards of care in the 

same or a similar field as the defendant doctor.” Dalley v. Utah 

Valley Reg’l Med. Center, 791 P.2d 193, 195–96 (Utah 1990). The 

reason for this general rule is that “the nature of the [medical] 

profession removes the particularities of its practice from the 

knowledge and understanding of the average citizen.” Nixdorf v. 

Hicken, 612 P.2d 348, 352 (Utah 1980). The doctrine of res 

ipsa loquitur is an exception to this general rule. Dalley, 791 P.2d 

at 196.

¶19 Through the doctrine of res ipsa loquitur, a plaintiff may 

establish “a prima facie case of negligence using circumstantial 

evidence.” Id. When the doctrine comes into play, it is often 

because “a plaintiff may be unconscious or incapacitated during 

surgery, and therefore unable to identify a defendant’s specific 

negligent acts.” Baczuk v. Salt Lake Reg’l Med. Center, 2000 UT 

App 225, ¶ 6, 8 P.3d 1037. Res ipsa loquitur thus “allows an 

inference of negligence to be drawn when human experience 

provides a reasonable basis for concluding that an injury 

probably would not have happened if due care had been 

exercised.” King v. Searle Pharm., Inc., 832 P.2d 858, 861 (Utah 

1992). This inference of negligence is “rebuttable,” putting “the 

burden of going forward with the evidence” on the defendants. 

Dalley, 791 P.2d at 200. And “[s]ince res ipsa loquitur generally 

raises only an inference and not a presumption of negligence, the 

fact finder may choose either to accept or reject that inference.” 

King, 832 P.2d at 861.

¶20 To rely on the doctrine of res ipsa loquitur, a “plaintiff 

must establish an evidentiary foundation from which a finder of 

fact could logically conclude that an injury was probably caused 
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by negligence.” Baczuk, 2000 UT App 225, ¶ 6. A plaintiff does so 

by showing three elements: 

(1) The accident was of a kind which, in the 

ordinary course of events, would not have 

happened had the defendant[s] used due care, 

(2) the instrument or thing causing the injury was

at the time of the accident under the management 

and control of the defendant[s], and (3) the 

accident happened irrespective of any participation 

at the time by the plaintiff.

Nixdorf, 612 P.2d at 352–53 (cleaned up). Only the first element is 

disputed on appeal.

¶21 Establishing an evidentiary foundation that a plaintiff’s 

injury “was of a kind which, in the ordinary course of events, 

would not have happened had the defendant[s] used due care” 

“presents a peculiar problem to a plaintiff in a medical 

malpractice case because of the necessity of showing what the 

usual outcome of a medical procedure would be when the 

required due care is employed.” Id. (cleaned up). A plaintiff may 

take one of two paths for laying the required evidentiary 

foundation. One path is for the plaintiff to introduce “expert 

medical testimony to establish the fact the outcome is more 

likely the result of negligence than some other cause.” Id. at 353;

see also King, 832 P.2d at 862; Baczuk, 2000 UT App 225, ¶ 7. The 

other path is for the plaintiff to “rely on the common knowledge 

and understanding” of laypersons. Nixdorf, 612 P.2d at 353; see 

also King, 832 P.2d at 862–63. This is because the Utah Supreme 

Court has recognized that “in certain situations, the medical 

procedure is so common or the outcome so affronts our notions 

of medical propriety that expert testimony is not required to 

establish what would occur in the ordinary course of events.” 

Nixdorf, 612 P.2d at 353. “A classic example” of this type of 

situation is “leaving a foreign object in a patient’s body during 
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surgery.” King, 832 P.2d at 862; accord Pete v. Youngblood, 2006 UT 

App 303, ¶¶ 23–24, 30, 141 P.3d 629.3

¶22 Here, because the Bergers maintain “there is no need for 

an expert to explain what is readily within the knowledge of 

laypersons,” they thus are relying on the “common knowledge” 

path for establishing that Bonnie’s injury “was of a kind which, 

in the ordinary course of events,” would not have happened but 

for Defendants’ negligence. See Nixdorf, 612 P.2d at 352–53 

(cleaned up). The Bergers’ theory is as follows: “[Bonnie’s] brain 

was injured during lung surgery. She died from that injury. This 

is not a common occurrence. As such, it is reasonable to infer 

that negligence occurred (subject to [Defendants] being given the 

opportunity to prove otherwise).” In so arguing, the Bergers 

liken this case to two cases in which res ipsa loquitur applied to 

surgical patients who suffered injuries to unrelated parts of their 

bodies.

¶23 First, in Dalley v. Utah Valley Regional Medical Center, 791 

P.2d 193 (Utah 1990), the plaintiff underwent a caesarean section 

and returned from the operating room with a burn on the calf of 

her right leg. Id. at 195. The Utah Supreme Court held that “it is 

within the knowledge and experience of laypersons that a 

woman with a healthy leg does not usually go into an operating 

room for a caesarean section operation and emerge with a burn 

on her leg without some occurrence of negligence.” Id. at 196. 

Concluding that “[t]his type of inference does not require expert 

testimony concerning the standard of care and breach of that 

 

3. Other examples in non-medical contexts include “a barrel of 

flour falling from a warehouse window onto a pedestrian,” “a 

falling elevator,” a “sudden slamming of automatic doors in an 

airport,” and “glass particles found in a loaf of bread.” Walker v. 

Parish Chem. Co., 914 P.2d 1157, 1162 (Utah Ct. App. 1996) 

(collecting cases).
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standard,” id., the court further explained that when “a plaintiff 

receives an injury to a healthy part of the body not involved in 

the operation in an operating room controlled by known 

defendants, res ipsa loquitur establishes a rebuttable inference of 

negligence and causation that puts the burden of going forward 

with the evidence upon [the defendants],” id. at 200.

¶24 Second, in Baczuk v. Salt Lake Regional Medical Center, 2000 

UT App 225, 8 P.3d 1037, the plaintiff underwent hand surgery. 

Id. ¶ 2. An anesthesiologist “had used a heating pad to prevent 

vasoconstriction during the surgery,” and after surgery, the 

plaintiff discovered “a pressure injury and/or a burn to his 

buttocks.” Id. On appeal, this court agreed with the plaintiff that 

“it is within the understanding of laypersons that his burn 

and/or pressure injury on an originally uninjured part of his 

body not involved in the surgery more probably than not 

resulted from negligence.” Id. ¶ 8. This court reasoned, “It 

requires no medical or technical expertise to understand that a 

person may suffer a burn and/or a pressure injury from lying in 

the same position for too long on a heating pad. Nor does it 

require medical expertise to understand the steps that must be 

taken to avoid such injuries.” Id. ¶ 11. Accordingly, this court 

concluded that the plaintiff was “justified in relying on the 

understanding of laypersons” to set forth the evidentiary 

foundation for res ipsa loquitur. Id. ¶¶ 7–8, 11.

¶25 Relying on Dalley and Baczuk, the Bergers argue that “it 

would also appear that it is within the knowledge and 

experience of laypersons that a person with a healthy brain does 

not usually go into the operating room for routine lung surgery 

and emerge with a brain injury that causes death without some 

occurrence of negligence.” We disagree.

¶26 This case is dissimilar to Dalley and Baczuk. Dalley turned 

on the existence of a simple injury (a burn on the leg) that would 

clearly not occur during the specific type of procedure (a 
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caesarean section), see Dalley, 791 P.2d at 196, 200, and Baczuk

turned primarily on the simplicity of the injury (burn and/or 

pressure injury on the buttocks) and its lack of connection to the 

procedure (hand surgery), see Baczuk, 2000 UT App 225, ¶¶ 7–8, 

11. In contrast, this case presents more complex questions about 

the procedure and injury that non-medically trained persons 

would be unable to evaluate without assistance. Laypersons 

would be unable to assess whether an anoxic brain injury clearly 

would not occur during a robotic lung surgery and whether that 

injury had any connection to the procedure. Indeed, whether 

and how an anoxic brain injury could occur during a robotic 

procedure on a patient’s lung do not fall within the common 

understanding of laypersons. This injury is not an obvious one 

that a non-medically trained person could automatically 

associate with negligence, like “leaving a foreign object in a 

patient’s body during surgery.” See King, 832 P.2d at 862. 

Moreover, laypersons likely do not understand “the steps that 

must be taken to avoid” injuries like Bonnie’s. See Baczuk, 2000 

UT App 225, ¶ 11.

¶27 Although the Bergers claim that, like Dalley and Baczuk, 

this case involves an injury to an otherwise healthy part of the 

body that is uninvolved with the procedure, we cannot agree. 

Defendants point out—and the Bergers do not dispute—that a 

procedure removing the lower lobe of a lung necessarily 

involves the respiratory and circulatory systems, which supply 

oxygen to the brain, and that, as a matter of biology, the proper 

functioning of the lungs is crucial to the health of the brain. 

Thus, unlike the procedures and sites of injury in Dalley and 

Baczuk, the brain is not a remote, uninvolved part of the body 

when a patient is undergoing lung surgery.

¶28 We thus agree with the district court that this is “a 

medically complicated malpractice case” and that the issues “are 

not within the common knowledge of lay jurors.” The medical 

and standard of care questions are complex and involve a 
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number of subjects “with which a lay juror would have no 

familiarity or expertise,” including “non-small cell carcinoma, 

robotic surgery, anesthesia techniques, and hospital blood 

procedures and administration.” We agree that it is not within 

the common understanding of laypersons to determine 

“whether a surgeon correctly performed the robotic evaluation 

and removal of non-small cell carcinoma,” whether “anesthesia 

techniques used during the surgery were appropriate and within 

the standard of care,” and whether a patient was adequately and 

appropriately “monitored during a procedure.” It is also not 

within the common understanding of laypersons to evaluate 

“hospital policies regarding availability of blood product in 

procedures such as this, including blood bank procedures and 

the use of a cell saver machine.”

¶29 In short, the district court correctly ruled that “this is not 

the type of case where a layman could determine whether the 

event causing the damage is of a type that ordinarily would not 

happen except for someone’s negligence.” (Cleaned up.) The 

situation surrounding Bonnie’s injury is not one in which the 

Bergers “can rely on the common knowledge and understanding 

of laymen to establish” that Bonnie’s injury was probably caused 

by negligence. See Nixdorf, 612 P.2d at 353. Therefore, the Bergers 

cannot rely on the doctrine of res ipsa loquitur to exempt them 

from the general rule that expert testimony is required to 

support their medical malpractice claim.4 Accordingly, we affirm 

the district court’s ruling on the issue of res ipsa loquitur.

 

4. In arguing that they should have been able to rely on res ipsa 

loquitur without expert testimony, the Bergers emphasize that 

evidence was conflicting at the end of fact discovery, “there were 

still questions about what actually caused [Bonnie’s] injury,” and 

those facts “are only known by [Defendants].” Because of these 

circumstances, the Bergers suggest that their potential experts 

(continued...)
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II. Expert Disclosure Deadlines

¶30 Next, the Bergers contend that the district court erred in 

denying their motion to extend the expert discovery deadlines. 

They assert that their motion was justified by good cause 

because, as a matter of “fairness, a plaintiff should be able to 

obtain a ruling on invocation of the doctrine of res ipsa loquitur

before expert discovery is required.” According to the Bergers, 

the doctrine of res ipsa loquitur “cannot be effectively invoked 

before the close of fact discovery (because facts may be learned 

which make the doctrine inappropriate) and logically should be 

invoked before expert discovery begins (to allow expert 

discovery to proceed effectively).” They also assert that 

extending the discovery deadlines would have “maintain[ed] the 

status quo,” resulted in only a “short delay,” and caused no 

prejudice to any party.

¶31 District courts generally may extend deadlines “for good 

cause.”5 Utah R. Civ. P. 6(b)(1). In exercising its discretion to 

 

(...continued)

“would only be able to speculate and infer what happened to 

[Bonnie]” and therefore “it is only reasonable that [Defendants] 

be required to explain how [Bonnie’s] injury occurred in a 

non-negligent way.” We are not persuaded. Instead, we agree 

with Defendants that “experts reach opinions based on 

conflicting facts as a matter of course” and that, specific to this 

case, “the possibility of conflicting opinions supports the 

argument that the procedure and injuries in this case could be 

explained by multiple potential causes,” underscoring the extent 

to which “the medical issues fall outside the realm of common 

knowledge or experience.”

5. In their opening brief, the Bergers claim that the district court 

“applied the wrong standards in denying the motion to extend 

(continued...)
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deny the Bergers’ motion to extend the discovery deadlines, 

the district court articulated reasonable bases to support its 

decision that the Bergers’ failure to disclose experts “was not 

the result of good cause.” The court determined that the 

Bergers “had every opportunity to designate their experts and 

they simply failed to do so.” See Townhomes at Pointe Meadows 

Owners Ass’n v. Pointe Meadows Townhomes, LLC, 2014 UT 

App 52, ¶ 12, 329 P.3d 815 (affirming the denial of a motion to 

extend the discovery deadlines when the district court 

determined, among other things, that “the discovery period in 

[the] case ha[d] afforded the parties a fair and reasonable 

opportunity to prepare for trial” (cleaned up)), superseded on 

other grounds by rule as stated in Ghidotti v. Waldron, 2019 UT 

App 67, 442 P.3d 1237. Indeed, the events in question “happened 

seven years” earlier, the parties had been litigating “for over 

four years,” and there had already been “a number of extensions 

for discovery deadlines.” Additionally, the court determined 

that the Bergers’ undisputed failure to designate experts by 

the March 1, 2018 deadline was “not harmless” given that 

it forced Defendants to make their expert disclosures “out of 

sequence” and “without the benefit of” the Bergers’ expert 

disclosures.

¶32 Likewise, the district court rejected the notion that 

the Bergers’ motion on their res ipsa loquitur theory provided 

good cause for extending the disclosure deadlines. The court 

reasoned that the “decision to proceed in such a manner did not 

obviate the requirement to designate expert witnesses by the 

appointed deadline.” It explained that while the Bergers could 

have avoided calling an expert at trial if they had prevailed on 

 

(...continued)

expert discovery deadlines.” But in oral argument before this 

court, the Bergers conceded that the district court applied the 

correct standard in deciding the motion.
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the res ipsa loquitur motion, they could have “at least 

designated an expert to comply with the discovery rules,” 

especially when medical malpractice cases commonly “end up 

being a battle of experts.” But where the Bergers “roll[ed] the 

dice and wait[ed] to see” whether they prevailed on their res 

ipsa loquitur motion before designating experts, the court did 

not see “any wiggle room” to “give [them] more time to come up 

with an expert.”

¶33 We appreciate the Bergers’ perceived dilemma concerning 

their attempt to rely on res ipsa loquitur and their impending 

expert disclosure deadlines. These considerations might have 

weighed in favor of extending the deadlines in this case 

and might have provided a reasonable basis for doing so. Yet 

the district court’s decision on the matter was “a discretionary 

call,” reviewed only for abuse of discretion. See Gunn Hill Dairy 

Props., LLC v. Los Angeles Dep’t of Water & Power, 2015 UT App 

261, ¶ 24, 361 P.3d 703 (Orme, J., concurring) (opining that 

the district court “made the wrong call” on a motion to 

change venue but that “it was, in its essence, a discretionary 

call—and one that was within the broad range of discretion 

entrusted to [it]”). While we cannot say that we necessarily 

would have denied the Bergers’ motion had we been in the 

district court judge’s position considering it in the first instance, 

we affirm the district court’s decision under the deferential 

standard of review that we are obliged to apply. See id. ¶ 21 

(emphasizing that “standards of review really do matter”). 

Under that standard, “we will reverse only if there is no 

reasonable basis for the district court’s decision.” See Townhomes, 

2014 UT App 52, ¶ 9. Here, the district court articulated 

reasonable bases for its decision, including that the case had 

been pending “for over four years” and the Bergers “had every 

opportunity to designate their experts.” We thus conclude that 

the district court did not exceed the bounds of its discretion 

when it denied the Bergers’ motion to extend the expert 

discovery deadlines.
Berger v. Ogden Regional Medical Center

20190206-CA 18 2020 UT App 85

III. Summary Judgment

¶34 Finally, the Bergers challenge the district court’s grant of 

summary judgment to Defendants, making their challenge 

contingent on their success on the first issue raised on appeal. 

They assert that “if this court determines that the Bergers have 

established the requisite foundation to invoke the doctrine of res 

ipsa loquitur then the trial court’s determination that summary 

judgment for lack of designation of an expert should be 

reversed.”

¶35 As discussed, a plaintiff must prove four elements to 

prevail on a medical malpractice claim. Morgan v. Intermountain 

Health Care, Inc., 2011 UT App 253, ¶ 8, 263 P.3d 405. “A 

plaintiff’s failure to present evidence that, if believed by the trier 

of fact, would establish any one of the elements of the prima 

facie case justifies a grant of summary judgment to the 

defendant.” Id. (cleaned up). In light of our affirmance of the 

district court’s decision that the res ipsa loquitur theory is 

unavailable to the Bergers, and in light of our affirmance of its 

decision denying the Bergers further opportunity to designate 

expert witnesses, we also affirm the district court’s decision 

granting summary judgment to Defendants.

CONCLUSION

¶36 We conclude that the district court correctly determined 

that the Bergers could not rely on the doctrine of res ipsa 

loquitur. We also conclude that the court did not exceed its

discretion in denying the Bergers’ motion to extend the expert 

discovery deadlines. Given the Bergers’ need for expert 

testimony and their failure to designate any expert witnesses, the 

district court correctly granted summary judgment in favor of 

Defendants. Accordingly, we affirm the district court in all 

respects.