This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 48

IN THE

SUPREME COURT OF THE STATE OF UTAH

MICHELLE COROLES,

Appellant,

v.

STATE OF UTAH, UNIVERSITY HEALTH CARE, UNIVERSITY OF UTAH STATE 

HOSPITALS AND COMMUNITY, PARKWAY HEALTH CENTER,

UNIVERSITY OF UTAH MEDICAL CENTER, and UNIVERSITY OF UTAH 

HEALTH SCIENCES, 

Appellees.

No. 20130217

Filed April 21, 2015

Third District, Salt Lake

The Honorable Paul G. Maughan

No. 20130217

Attorneys:

Karra J. Porter, Nathan D. Alder, Sarah E. Spencer,

Salt Lake City, for appellant

Rodney R. Parker, Elizabeth L. Willey, Terence L. Rooney,

Salt Lake City, for appellees

JUSTICE DURHAM authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE PARRISH, and JUDGE ORME joined.

JUSTICE NEHRING did not participate herein due to his retirement;

COURT OF APPEALS JUDGE GREGORY K. ORME sat.

JUSTICE DENO G. HIMONAS became a member of the Court on

February 13, 2015, after oral argument in this matter, and

accordingly did not participate.
COROLES v. STATE

Opinion of the Court

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 In this medical malpractice suit, the district court struck 

two sets of proposed expert witnesses retained by the plaintiff. The 

court struck the first set of witnesses because the plaintiff’s attorney 

revealed confidential information to them about the proceedings 

before a mandatory prelitigation panel. The court also struck two 

replacement expert witnesses because they were designated after the 

cutoff date established by the scheduling order. Because the plaintiff 

was then left without any experts to establish the necessary elements 

of her malpractice claim, the district court granted summary 

judgment in favor of the defendants and dismissed the plaintiff’s 

claim. 

¶2 The plaintiff appeals from the judgment, arguing that the 

district court erred by striking both the original expert witnesses and 

the replacement experts. We agree with the plaintiff on both counts. 

The court erred by striking the original experts without inquiring 

whether the confidential information revealed to them influenced 

their opinions. The court also erred when it excluded the second set 

of witnesses because they were designated after the cutoff date. 

Although courts have discretion to sanction a party for violating a 

scheduling order, the district court applied the wrong rule when it 

sanctioned the plaintiff. Moreover, the sanction of witness exclusion 

was not warranted in this case.

BACKGROUND

¶3 After suffering from symptoms including coughing, 

wheezing, and skin paleness, Thomas Coroles sought treatment at a 

medical clinic. He was diagnosed with the flu, prescribed an inhaler 

and cough syrup, and told that his symptoms would become worse 

before he got better. A few days later, Mr. Coroles died from 

pneumonia.

¶4 Mr. Coroles’s wife, Michelle Coroles, decided to sue 

several entities she believed to be responsible for her husband’s 

death. As required by the Utah Health Care Malpractice Act 

(Malpractice Act), Mrs. Coroles first presented her malpractice 

claims to a prelitigation panel and participated in an evidentiary 

hearing before the panel. See UTAH CODE §§ 78B-3-412, -416. After 

completing the required proceedings before the panel, Mrs. Coroles 

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Opinion of the Court

initiated a lawsuit against the State of Utah and medical facilities 

associated with the State that she alleged were liable for Mr. 

Coroles’s death.

¶5 During the ensuing litigation, Mrs. Coroles served 

witness designations and expert reports for two expert medical 

witnesses. The designations were made on the final day permitted 

by the scheduling order. Each of the reports contained an 

introductory letter Mrs. Coroles’s counsel had sent to the medical 

experts before they were retained. Both letters referenced some 

opinions allegedly expressed by members of the prelitigation panel.

¶6 Two months after Mrs. Coroles designated her experts 

and served the reports, the defendants moved to strike the 

designations. The defendants argued that when Mrs. Coroles 

revealed information to her experts about the alleged opinions of the 

prelitigation panel, she violated the confidentiality provision of the 

Malpractice Act, which provides that the proceedings before the 

prelitigation panel are “confidential, privileged, and immune from 

civil process.” Id. § 78B-3-416(1)(d). The defendants asserted that the 

appropriate remedy for this violation was the exclusion of the two 

experts. They also moved for summary judgment, arguing that 

because Mrs. Coroles’s experts should be stricken, she could no 

longer produce the necessary expert testimony to support her 

medical malpractice claim.

¶7 Two weeks later, Mrs. Coroles filed an opposition to the 

defendants’ motion to strike the experts. She also served a 

supplemental expert witnesses designation that named two 

additional expert witnesses. Mrs. Coroles argued that even if the 

district court elected to strike the initial expert witnesses, the court 

should not grant summary judgment because the supplemental 

experts could testify at trial. The defendants subsequently moved to 

strike the supplemental experts, arguing that the supplemental 

expert designation was untimely under the scheduling order.

¶8 The district court ruled that because the two original 

medical experts had been exposed to confidential information about 

the prelitigation proceedings, they could not testify at trial. It also 

concluded that the defendants had been prejudiced by the late 

designation of the supplemental experts and barred them from 

testifying. Because these two rulings deprived Mrs. Coroles of any 

expert witnesses to testify at trial, the district court granted summary 

judgment in favor of the defendants. Mrs. Coroles appealed from the 

judgment against her.

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Opinion of the Court

ANALYSIS

I. EXCLUSION OF THE ORIGINAL EXPERT WITNESSES

BECAUSE OF THEIR EXPOSURE TO CONFIDENTIAL 

INFORMATION ABOUT THE PRELITIGATION PANEL 

PROCEEDINGS

¶9 A plaintiff may not file a lawsuit for medical malpractice 

until he or she satisfies the prelitigation requirements of the 

Malpractice Act. UTAH CODE § 78B-3-412(1). First, the plaintiff must 

serve all defendants with a “notice of intent to commence an action” 

at least ninety days before filing the lawsuit. Id. § 78B-3-412(1)(a). 

Second, the plaintiff must participate in a hearing before a 

prelitigation panel composed of a lawyer, a licensed healthcare 

provider, and a lay panelist and obtain a certificate of compliance 

from the Utah Division of Occupational and Professional Licensing. 

Id. §§ 78B-3-412(1)(b), -416(4), -418(3). The division will issue a 

certificate of compliance if (1) the prelitigation panel concludes that 

the plaintiff’s claim “has merit,” (2) the plaintiff files an “affidavit of 

merit” signed by a licensed health care provider, (3) the defendant 

fails to reasonably cooperate in scheduling a prelitigation hearing 

within the allotted time, or (4) the plaintiff and the defendant 

stipulate to forego a hearing before a prelitigation panel. Id. § 78B-3-

418(2)–(3); see also id. §§ 78B-3-416(3)(c)–(e), -423(2)–(3).

¶10 One of the purposes of this prelitigation process is to 

“expedite early evaluation and settlement of claims.” Id. § 78B-3-

402(3). To this end, the Malpractice Act contains a confidentiality 

provision, which encourages the parties to fully participate in the 

prelitigation hearing and evaluate the strengths and weaknesses of 

the claim without fear of giving the opposing party an advantage in 

potential future litigation. This confidentiality provision states that 

the proceedings before the prelitigation panel “are confidential, 

privileged, and immune from civil process.”1 Id. § 78B-3-416(1)(d). 

1 Notably, the Malpractice Act provides that the prelitigation 

panel proceedings are both confidential and privileged. The directive 

that the proceedings remain confidential indicates that information 

about the proceedings is “meant to be kept secret,” and may not be 

shared with individuals who did not participate in the prelitigation 

hearing. BLACK’S LAW DICTIONARY 339 (9th ed. 2009) (defining 

“confidential”); see also id. (defining “confidentiality” as “the state of 

having the dissemination of certain information restricted”). The 

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Opinion of the Court

The Malpractice Act, however, provides no guidance on what the 

consequences of breaching this confidentiality provision should be.

¶11 In this case, Mrs. Coroles does not dispute that her counsel 

violated the confidentiality provision of the Malpractice Act when he 

revealed the alleged opinions of the prelitigation panel to the

prospective expert witnesses. Instead, she contends that the district 

court erred by concluding that exposing an expert to confidential 

information “creates an irrebuttable presumption that the expert is 

tainted and must be excluded.” In other words, Mrs. Coroles asserts 

that the court should not have excluded the experts without first 

determining whether the confidential information would affect their 

testimony at trial. We first determine the appropriate standard of 

review for this issue. We then apply this standard of review to 

evaluate whether the district court erred.

A. Standard of Review

¶12 The defendants argue that the district court’s exclusion of 

the expert witnesses is similar to a discovery sanction under rule 37 

of the Utah Rules of Civil Procedure. The defendants further contend 

that, like a discovery sanction, the district court’s ruling should be 

reviewed for an abuse of discretion. See Goggin v. Goggin, 2013 UT 16, 

¶ 33, 299 P.3d 1079 (discovery sanctions are reviewed for abuse of 

discretion). There is an important distinction, however, between a 

discovery sanction and the district court’s order excluding the expert 

witnesses in this case. Rule 37(e) authorizes a district court to 

sanction a party for disobeying a discovery order and describes an 

array of sanctions to choose from. In light of this explicit grant of 

discretion, it is entirely appropriate to review a district court’s 

discovery-sanction ruling for an abuse of that discretion. In contrast, 

there is no statute, rule, or caselaw authorizing the district court to 

sanction parties for a violation of the confidentiality provision of the 

independent mandate that the proceedings are also privileged has a 

completely different effect. A privilege grants the holder of the 

privilege the legal right to refuse to disclose certain information. Cf.

UTAH R. EVID. 504(b) (attorney-client privilege). Thus, while the 

confidentiality mandate restricts the rights of the parties to reveal 

information concerning the prelitigation proceedings, the privilege 

mandate grants the parties the option to refuse to disclose the 

information. Because this case deals with a violation of the 

confidentiality mandate of Utah Code section 78B-3-416(1)(d), we do 

not interpret or address the privilege mandate. 

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Opinion of the Court

Malpractice Act. Rule 37(e) does not apply because no court order 

was disobeyed, and the Malpractice Act does not explicitly authorize 

the district court to take any particular action in response to a 

violation of the confidentiality provision. The district court, 

therefore, was in the difficult position of choosing a course of action 

with no law to guide it.

¶13 Thus, Mrs. Coroles’s argument that the district court erred 

when it excluded her expert witnesses without examining them 

raises the fundamental legal question of what a court may do when

confidential information about the proceedings before a prelitigation 

panel is shared with a testifying expert. The district court concluded 

as a matter of law that the exposure of an expert to any information 

protected by Utah Code section 78B-3-416(1)(d) requires automatic 

exclusion. Because this court has “the power and duty to say what 

the law is and to ensure that it is uniform throughout the 

jurisdiction,” we examine this legal conclusion de novo. State v. Pena, 

869 P.2d 932, 936 (Utah 1994).

B. Exclusion of Expert Witnesses Exposed to Confidential Information

¶14 As noted above, one of the purposes of the confidentiality 

provision of the Malpractice Act is to prevent the prelitigation-panel 

proceedings from affecting the actual litigation of a claim. Supra ¶ 10.

In this case, the district court’s apparent rationale for excluding the 

expert witnesses exposed to confidential information was to prevent 

the confidential information from tainting the evidence presented to 

the jury. The question presented in this appeal, therefore, is whether 

a district court may achieve this objective by ordering the per se 

exclusion of the experts without first determining whether their 

opinions are in fact based upon the confidential information.

¶15 We have not discovered Utah caselaw addressing this 

question, but cases examining analogous federal statutes are helpful 

and persuasive. Statutes regulating marine casualty reports and 

federal highway safety reports, for example, contain provisions 

forbidding the use of those reports in civil litigation. Thus, “no part 

of a report of a marine casualty investigation conducted under [the 

federal reporting statute] . . . shall be admissible as evidence or 

subject to discovery in any civil or administrative proceedings.” 46 

U.S.C. § 6308(a) (2015). Similarly, certain highway safety reports 

“shall not be subject to discovery or admitted into evidence in a 

Federal or State court proceeding or considered for other purposes in 

any action for damages.” 23 U.S.C. § 409 (2015). The objective of 

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these statutes is the same as the objective of the confidentiality 

provision at issue in this case: to prevent certain information from 

affecting the outcome of civil litigation. See Robertson v. Union Pac. 

R.R. Co., 954 F.2d 1433, 1435 (8th Cir. 1992) (“[T]he underlying 

intent of [23 U.S.C. § 409] is to facilitate candor in administrative 

evaluations of highway safety hazards, and to prohibit federally 

required record-keeping from being used as a tool . . . in private 

litigation.” (third alteration in original) (citations omitted) (internal 

quotation marks omitted)).

¶16 When interpreting these federal statutes, courts have held 

that experts exposed to the inadmissible information should not 

automatically be excluded. Instead, experts have been allowed to 

testify so long as they are able to form an opinion without relying 

upon the inadmissible information. When interpreting the marine 

casualty reporting statute (46 U.S.C. § 6308), courts have rejected 

attempts to exclude an expert who has reviewed inadmissible 

casualty reports. United States v. Egan Marine Corp., 808 F. Supp. 2d 

1065, 1074 (N.D. Ill. 2011) (“[A]n expert report that simply cites or 

references an [inadmissible casualty report] is not necessarily 

inadmissible, nor is the expert automatically barred from 

testifying.”); Am. S.S. Co. v. Hallett Dock Co., No. 09-2628 (MJD/LIB), 

2013 WL 308907, at *6 (D. Minn. Jan. 25, 2013) (“[T]he portion of any 

expert opinion that relies on or is substantially based on the 

[inadmissible casualty report] is inadmissible, although the rest of 

the expert opinion is still admissible.”); Baker Hughes Oilfield 

Operations, Inc. v. Seabulk Tankers, Inc., No. Civ.A.03-1230, 2004 WL 

859199, at *1 (E.D. La. Apr. 20, 2004) (striking portions of an expert 

report that rely upon an inadmissible casualty report but declining to 

strike conclusions that do not rely on the inadmissible casualty 

report). At least one court interpreting the highway safety report 

statute (23 U.S.C. § 409) has similarly refused to categorically exclude 

an expert who reviewed an inadmissible report. Lanasa v. Harrison, 

828 So. 2d 602, 605 (La. Ct. App. 2002) (holding that the trial court 

did not err by relying upon the conclusions of an expert witness who

reviewed an inadmissible highway safety report because the expert 

based his opinions upon his independent assessment of the 

evidence); see also Robertson, 954 F.2d at 1435 (rejecting an argument 

that an expert should have been allowed to rely upon an 

inadmissible highway department materials and concluding “that 

the district court did not abuse its discretion by instructing 

appellants’ expert witness, pursuant to 23 U.S.C. § 409, to disregard 

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information compiled or utilized by the [highway depatment] in 

formulating his opinion”).

¶17 Moreover, requiring experts to exclude consideration of 

confidential information in forming an opinion would not be 

impossible, as the defendants in this case suggest. In an analogous 

case, Allstate Insurance Co. v. Electrolux Home Products, Inc., a 

plaintiff’s expert revealed that he had reviewed information that was 

subject to a confidentiality agreement. 840 F. Supp. 2d 1072, 1076

(N.D. Ill. 2012). Because the information was confidential, the expert 

did not disclose it to the defendant as required by Federal Rule of 

Civil Procedure 26(a)(2). Id. The defendant argued, therefore, that the 

federal district court should prohibit the expert from testifying at 

trial because the defendant could not properly explore the 

foundation of the expert’s opinions. Id. The district court disagreed, 

ruling that the “drastic measure” of expert disqualification was 

inappropriate. Id. at 1083–84 (internal quotation marks omitted). 

Instead, the court ordered the expert to “compartmentalize” the 

confidential information and “exclude that information from the 

basis for his opinions.” Id. at 1084. The court noted that this task was 

similar to that performed by jurors when instructed to disregard 

stricken testimony or by a judge when evidence is excluded from a 

bench trial. Id. Thus, “[t]o ask an expert to ‘forget’ or exclude 

[confidential information] . . . is not an impossibility; rather, it is a 

task performed by various individuals in the court system each 

day.” Id.

¶18 A similar remedy may be appropriate here. The district 

court erred, however, by ordering the per se exclusion of the expert 

witnesses without first discovering (1) whether the experts relied 

upon the confidential information revealed in the introductory letter 

sent by Mrs. Coroles’s attorney or (2) whether the experts are able to 

render an opinion without considering the confidential information.2

In conducting such an investigation, the district court “has 

2 It seems unlikely that, in lieu of conducting an independent 

assessment of the medical evidence, a reputable medical expert 

would rely on a lawyer’s incomplete recitation of some of the 

opinions expressed by an anonymous panel composed of a lawyer, a 

health care provider, and a lay person tasked with performing an 

administrative screening process. Indeed, it is doubtful whether any 

substantial reliance upon the opinions expressed by the panel would 

support admissible expert testimony. See UTAH R. EVID. 702.

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numerous tools it must employ to prevent unwarranted disclosure of 

the confidential information, including the use of sealing and 

protective orders, limited admissibility of evidence, orders 

restricting the use of testimony in successive proceedings, and, 

where appropriate, in camera proceedings.” Spratley v. State Farm 

Mut. Auto. Ins. Co., 2003 UT 39, ¶ 22, 78 P.3d 603 (internal quotation 

marks omitted). If a district court determines that an expert can 

express an opinion without relying on the confidential information, 

the expert should not be stricken. Instead, any reference to the 

confidential information should be stricken from the expert’s report 

and the court should instruct the expert to disregard the confidential 

information. See Allstate, 840 F. Supp. 2d at 1081, 1084.

II. EXCLUSION OF THE SUPPLEMENTAL EXPERT WITNESSES 

AS A SANCTION FOR THEIR UNTIMELY DESIGNATION UNDER 

THE SCHEDULING ORDER

¶19 Rule 16 of the Utah Rules of Civil Procedure gives the 

district court “broad authority to manage a case.” Boice ex rel. Boice v. 

Marble, 1999 UT 71, ¶ 8, 982 P.2d 565. Under this rule, the court may 

“establish[] the time to complete discovery” through a scheduling 

order. UTAH R. CIV. P. 16(a)(9). If a party fails to obey a scheduling 

order establishing a discovery deadline, the district court “may take 

any action authorized by Rule 37(e)” of the Utah Rules of Civil 

Procedure. UTAH R. CIV. P. 16(d). The permissible sanctions for 

providing untimely discovery include “prohibit[ing] the disobedient 

party . . . from introducing designated matters into evidence” (e.g., 

exclusion of the evidence disclosed after the deadline), or “order[ing]

the party or the attorney to pay the reasonable expenses, including 

attorney fees, caused by the failure.” UTAH R. CIV. P. 37(e)(2)(B), (E); 

see also Boice, 1999 UT 71, ¶ 8 (“If a party fails to obey a date set 

under rule 16, the court may sanction the offending party by 

excluding evidence the party intends to present.”); id. ¶ 11 (noting 

that a court may also order monetary sanctions).3

¶20 Thus, this court has held that rule 16(d) is the source of the 

district court’s authority to sanction a party for producing untimely 

discovery under a scheduling order Boice, 1999 UT 71, ¶ 8 & n.3; 

Arnold v. Curtis, 846 P.2d 1307, 1309–10 (Utah 1993). We review a 

court’s decision whether or not to sanction a party under rule 16(d), 

3 On May 1, 2015, rule 37 will be renumbered and the wording of 

some of the permissible sanctions will change. We cite the version of 

rule 37 in effect prior to May 1, 2015.

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Opinion of the Court

as well as the selection of an appropriate sanction, for abuse of 

discretion. Boice, 1999 UT 71, ¶¶ 7, 11.

¶21 Here, Mrs. Coroles violated the district court’s scheduling 

order when she designated the supplemental expert witnesses after 

the deadline. As a sanction for the untimely designations, the court 

excluded the experts. But the court did not do so pursuant to rule 

16(d), nor did it cite this court’s precedent when it struck the 

supplemental experts. Instead, the district court relied upon a line of 

cases from the court of appeals and excluded the experts under rule 

37(h) of the Utah Rules of Civil Procedure.4 See Spafford v. Granite 

Credit Union, 2011 UT App 401, ¶ 16, 266 P.3d 866 (reviewing the 

exclusion of an expert witness designated after the scheduling order 

deadline under the standard established in current rule 37(h)); 

Brussow v. Webster, 2011 UT App 193, ¶¶ 3–4, 258 P.3d 615 (same); 

Lippman v. Coldwell Banker Residential Brokerage Co., 2010 UT App 89,

at *2 (same); Posner v. Equity Title Ins. Agency, Inc., 2009 UT App 347, 

¶ 23, 222 P.3d 775 (same).

¶22 The difference between the standard for sanctioning a 

party under rule 16(d) and the standard for sanctioning a party 

under rule 37(h) is meaningful. Rule 16(d) provides that a court 

“may” impose a sanction described in rule 37(e) for a failure to abide 

by the scheduling order. Rule 37(h), on the other hand, states: 

If a party fails to disclose a witness, document or other 

material, . . . that party shall not be permitted to use the 

witness, document or other material at any hearing 

unless the failure to disclose is harmless or the party shows 

good cause for the failure to disclose. In addition to or in 

lieu of this sanction, the court on motion may take any 

action authorized by paragraph (e)(2). 

(Emphasis added). While rule 16(d) leaves the decision of whether to 

sanction a party to the broad discretion of the district court, rule 

37(h) imposes a structure whereby the court “shall” exclude an 

4 In its order excluding the supplemental experts, the district 

court actually cites rule 37(f), which is the former location of the 

current rule 37(h). See UTAH R. CIV. P. 37(f) (2010). It is clear from the 

court of appeals cases the district court also cites, as well as a 

discussion of the same issue in an order denying a motion for 

reconsideration, that the court intended to cite the current rule 37(h). 

We note that on May 1, 2015, rule 37(h) will be deleted.

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undisclosed witness “unless” the party shows either harmlessness or 

good cause. In other words, rule 37(h) shifts the burden to the 

nondisclosing party to show why the undisclosed evidence should 

not be excluded.

¶23 The preliminary issue before us, therefore, is whether the 

district court employed the correct standard when it applied rule 

37(h) rather than rule 16(d) to the question of whether Mrs. Coroles 

or her counsel should be sanctioned for violating the scheduling 

order. We conclude that there is no reason to deviate from our prior 

caselaw endorsing the application of rule 16(d) to these types of 

questions. Rule 16 authorizes a district court to set discovery 

deadlines, while subsection (d) of this rule specifically permits the 

court to sanction a violation of these deadlines. Rule 37(h), on the 

other hand, governs when a party “fails to disclose a witness, 

document or other material.” Thus, rule 16(d) is applied when 

evidence is produced late under the scheduling order, while rule 

37(h) is applied when evidence is not disclosed at all.5 We therefore 

repudiate Spafford, Brussow, Lippman, and Posner to the extent that 

those cases suggest that rule 37(h) should be applied where 

discovery is produced after a scheduling order deadline. See Spafford, 

2011 UT App 401, ¶ 16; Brussow, 2011 UT App 193, ¶¶ 3–4; Lippman, 

2010 UT App 89, at *2; Posner, 2009 UT App 347, ¶ 23.

¶24 Because those cases led the district court to apply rule 

37(h), the court used the wrong standard when it sanctioned Mrs. 

Coroles by excluding her supplemental expert witnesses. Although 

courts have discretion to sanction parties for violating a scheduling 

order, an exercise of discretion guided by an erroneous legal 

conclusion is reversible. See State v. Barrett, 2005 UT 88, ¶¶ 15–17, 127 

P.3d 682. We therefore reverse the district court’s order excluding 

the supplemental experts. 

¶25 Because this issue may arise again on remand, we also 

address whether the district court has discretion to award the 

extreme sanction of witness exclusion on the facts of this case. See 

State v. James, 819 P.2d 781, 795 (Utah 1991) (“Issues that are fully 

5 Federal caselaw has similarly concluded that the rule 

authorizing courts to sanction a party for the untimely designation of 

an expert witness under the scheduling order is the analogous rule 

16(f) of the Federal Rules of Civil Procedure. Geiserman v. MacDonald, 

893 F.2d 787, 790–91 (5th Cir. 1990); see also 3 JAMES WM. MOORE ET 

AL., MOORE’S FEDERAL PRACTICE § 16.92[6][a] (3d ed. 2014).

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briefed on appeal and are likely to be presented on remand should 

be addressed by this court.”).

¶26 We addressed a somewhat analogous factual scenario in

Boice, 1999 UT 71. In that case, a plaintiff in a medical malpractice 

case timely designated his expert witnesses. Id. ¶¶ 4, 7. But about 

six-and-a-half months after the deadline to designate expert 

witnesses, and about two months before trial, one of the plaintiff’s 

experts informed him that he no longer intended to testify. Id. Eight 

days later, the plaintiff moved to designate a substitute expert, but 

the district court denied the motion because it was not timely under 

the scheduling order. Id. ¶ 7. The court subsequently granted 

summary judgment in favor of the defendants because the plaintiff 

could no longer produce a necessary expert witness. Id. ¶ 5.

¶27 On appeal, we held that the district court had abused its 

discretion. We noted that the plaintiff had obeyed the scheduling 

order and that he was required to designate a replacement expert 

only because of circumstances beyond his control. Id. ¶ 11. 

Moreover, we observed that the plaintiff moved to substitute 

witnesses before the discovery cutoff date, and two months before 

the trial date. Id. Finally, we noted that the district court could have 

postponed the trial date or ordered the plaintiff to pay any 

additional costs associated with the substitution of the expert 

witness in order to obviate any prejudice to the defendants. Id.

¶28 Similar to the plaintiff in Boice, Mrs. Coroles also 

designated her initial expert witnesses by the deadline established in 

the scheduling order. She likewise promptly designated replacement 

experts two weeks after the defendants moved to exclude her initial 

experts. In some respects, Mrs. Coroles was even less deserving of a 

witness exclusion sanction than the Boice plaintiff. Mrs. Coroles 

designated her replacement experts three months before the 

deadline to complete expert depositions, and a trial date had not 

even been set. Thus, the only prejudice identified by the district 

court for allowing the replacement experts to testify would be the 

need for a new scheduling order and a potential delay in the 

eventual trial date.

¶29 It is true that Mrs. Coroles’s situation is somewhat less 

sympathetic than that of the plaintiff in Boice because the potential 

need for replacement experts in this case was caused by her lawyer’s 

violation of a confidentiality statute. But there is every indication 

that counsel’s decision to reveal the confidential information was 

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based upon his misreading of the law rather than any intentional 

misconduct. And, “[a]s a general rule, when the fault lies solely with 

the attorneys, the impact of the sanction should be lodged with the 

attorneys.” 3 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE

§ 16.92[4] (3d ed. 2014) (describing caselaw interpreting rule 16 of the 

Federal Rules of Civil Procedure). Moreover, where the exclusion of 

an expert is tantamount to the dismissal of the lawsuit, as is the case 

here, the district court should exercise restraint in choosing this 

grave step rather than a lesser sanction. Id. § 16.92[5][c][i]; see also 

Welsh v. Hosp. Corp. of Utah, 2010 UT App 171, ¶ 10, 235 P.3d 791

(“Excluding a witness from testifying is . . . extreme in nature and . . .

should be employed only with caution and restraint.” (alterations in 

original) (internal quotation marks omitted)). Thus, under the facts 

of this case, the exclusion of Mrs. Coroles’s supplemental witnesses 

as a sanction for violating the scheduling order would be an abuse of 

discretion.6

CONCLUSION

¶30 We reverse both the district court’s order excluding Mrs. 

Coroles’s original expert witnesses and the resulting summary 

judgment. On remand, the district court may exclude these experts 

only if it finds that they relied upon the confidential information in 

forming their opinions and that the experts cannot express an 

opinion at trial without relying upon the confidential information. 

¶31 If the district court permits the original experts to testify, 

the court’s exclusion of the supplemental experts will become a moot 

issue. But if the district court excludes the original experts, we also 

6 In the district court’s order excluding the supplemental 

experts, the court noted that Mrs. Coroles never sought leave to 

serve the late expert witness designations. It appears that the district 

court took this into account when sanctioning Mrs. Coroles. We are 

aware of no rule, however, requiring a party to seek permission or 

forgiveness before serving a late designation. Nor does the 

scheduling order contain any such requirement. Because rule 16(d) 

only authorizes a court to sanction a party for a failure to obey a 

scheduling order, the fact that Mrs. Coroles did not seek permission 

to serve the untimely witness designations is not an independent 

reason to sanction her. District courts could, of course, include in the 

scheduling order a requirement that a party seek permission before 

serving a late designation. In that hypothetical scenario, a court 

could choose to sanction a party for violating that requirement. 

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reverse the district court’s order excluding the supplemental expert 

witnesses. If it becomes necessary for the court to address the issue 

of sanctions for the untimely designation of the replacement experts,

the court may choose a sanction short of exclusion of the experts if it 

determines a sanction is appropriate under rule 16(d).

14