2016 UT App 165

THE UTAH COURT OF APPEALS

KARI L. BAUMANN,

Appellant,

v.

THE KROGER COMPANY AND GREGORY P. TAYLER,

Appellees.

Opinion

No. 20150078-CA

Filed July 29, 2016

Fourth District Court, Heber Department

The Honorable Fred D. Howard

No. 130500017

Gregory W. Stevens, Attorney for Appellant

Todd C. Hilbig and Andrea M. Keysar, Attorneys for

Appellee The Kroger Company

Elliott J. Williams and John M. Zidow, Attorneys for 

Appellee Gregory P. Tayler

SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in

which JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY

concurred.

1

GREENWOOD, Senior Judge:

¶1 Kari L. Baumann appeals the district court’s grant of 

summary judgment against her. Baumann failed to designate 

any expert witnesses under rule 26 of the Utah Rules of Civil 

Procedure, and the district court consequently precluded her 

 

1. Senior Judge Pamela T. Greenwood sat by special assignment 

as authorized by law. See generally Utah R. Jud. Admin. 11-

201(6).
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20150078-CA 2 2016 UT App 165

from using undesignated experts to contest summary judgment

under the same rule. We affirm.

BACKGROUND

¶2 Baumann first filed suit against The Kroger Company

(Kroger) and Dr. Gregory P. Tayler (collectively, Defendants) in 

2007 after she allegedly suffered ‚hypotension due to 

overmedication.‛ That complaint was dismissed upon 

stipulation of the parties. In February 2013, Baumann filed the 

instant action pursuant to Utah’s one-year savings statute.2In 

her new complaint, Baumann alleged that Dr. Tayler had 

breached the applicable standard of care in prescribing her 

medications. She also alleged that Kroger had breached its 

standard of care, violated Utah’s Pharmacy Practice Act, and 

failed to comply with its assumed duties and written assurances 

to her. After her attorney withdrew as counsel, Baumann 

represented herself pro se.

¶3 A year later, in February 2014, as part of pretrial 

discovery, Baumann replied to Defendants’ interrogatories 

requesting that she ‚[i]dentify each person [she] intend[ed] to 

call as a witness . . . including expert witnesses‛ and their 

anticipated testimonies. In reply, Baumann wrote that she would 

identify such ‚witnesses and their anticipated testimony . . . 

when scheduled to do so by case management order.‛ Two 

weeks later, Baumann and Defendants stipulated to a new 

schedule for additional time to conduct standard discovery. 

 

2. Utah’s savings statute provides that if ‚any action is timely 

filed and . . . the plaintiff fails . . . upon a cause of action 

otherwise than upon the merits, and the time limited either by 

law or contract for commencing the action has expired, the 

plaintiff . . . may commence a new action within one year after 

the . . . failure.‛ Utah Code Ann. § 78B-2-111 (LexisNexis 2012).
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20150078-CA 3 2016 UT App 165

Baumann was to provide Defendants with expert disclosures by 

June 6, 2014, and expert discovery was to be completed by

September 5, 2014.

¶4 Both June 6 and September 5 passed, and Baumann failed 

to disclose expert witnesses and their corresponding reports. 

Then, on September 11, 2014, Defendants jointly moved for 

summary judgment, arguing that without designated expert

witnesses Baumann could not establish the applicable standards 

of care, breach of those standards, or that the breach was the 

proximate cause of Baumann’s injuries. Baumann filed an 

opposition to the motion for summary judgment. Defendants 

responded on October 8, requesting that their motion be 

submitted for decision. Two days later, on October 10, Baumann 

filed approximately 150 pages of various documents with the 

court. The court scheduled a hearing on Defendants’ motion for 

summary judgment on November 17, 2014. The day of the

hearing, Baumann submitted an expert report applicable only to 

Kroger. No expert report applicable to Dr. Tayler was filed.

¶5 At the November 17, 2014 hearing on Defendants’ joint

motion for summary judgment, Baumann’s husband sought 

permission to speak for her in court. The district court denied his

request and granted a continuance for Baumann to find 

counsel—pro bono or otherwise.

3 The court also told the parties

that it would not consider any materials filed after October 8, 

2014, the date Defendants had filed their motion to submit for 

decision; that ‚the pleadings have closed on the motion‛; and 

 

3. Baumann’s husband asked to speak for Baumann ‚if there is 

no objection.‛ Defendants objected to ‚a nonlawyer representing 

a pro se plaintiff.‛ The court sustained the objection, explaining 

that while it was true that Baumann was ‚entitled to *speak for 

herself] under constitutional protection[,] if you have the 

assistance of an individual, [it] ought to be somebody that’s 

licensed in the law.‛
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20150078-CA 4 2016 UT App 165

that any new counsel would not ‚be at liberty to supplement this

record‛ but would be there only ‚to speak on the question *that+ 

has been filed.‛ The court also permitted Baumann to file a 

written statement detailing her arguments before the court if she 

had not found counsel to speak for her.

¶6 At the rescheduled hearing on January 5, 2015, 

Baumann—still unrepresented by counsel—read a written 

statement to the court. She contended that summary judgment 

was not proper because she had provided documents reflecting 

a Social Security Administration decision granting her disability 

benefits. She also told the court that she did not designate expert 

witnesses or their reports timely because she ‚was just [trying]

to save quite a few thousand dollars,‛ ‚the facts would speak for 

themselves,‛ and she thought ‚the Defense would want to move 

forward with also a less expensive and more timely speedier 

way of getting resolution to this case that’s been personally hard 

on [her] also for eight years.‛ Baumann asserted that in any 

event ‚[p]rocedural formalities are not the law.‛ ‚In conclusion,‛ 

she stated, ‚I believe that summary judgment is improper due to 

the fact that the defendants’ basis is procedural not evidentiary.‛

¶7 The district court granted Defendants’ motion for 

summary judgment, finding that Baumann had ‚failed to make 

expert disclosures‛ in accordance with the stipulation and rule 

26 and that there was ‚no good cause for *Baumann’s+ failure to 

make expert disclosures.‛ ‚Therefore,‛ the court ruled, Baumann

‚was precluded by Rule 26(d)(4) from using any undisclosed 

witness, document, or material in opposition to the Motion for 

Summary Judgment filed by the Defendants.‛ Because the 

‚standards of care related to prescribing and dispensing blood 

pressure medication, and what neurological or other biological 

effects that blood pressure medications may have, are not within 

the common knowledge of laypersons,‛ the district court found 

that ‚expert testimony is required in this case.‛ Baumann, 

‚having failed to make expert disclosures . . . *thus+ cannot make 
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20150078-CA 5 2016 UT App 165

a prima facie case for her healthcare malpractice claims.‛

Baumann appeals the district court’s order.

4

ISSUES AND STANDARDS OF REVIEW

¶8 Baumann—represented by counsel on appeal—contends

that the district court abused its discretion when it ‚declined to 

permit‛ her to disclose and utilize an expert report applicable to 

Dr. Tayler and that it erred in its application of law when it 

refused to consider or admit her expert report applicable to 

Kroger. We review a district court’s decision to impose sanctions

under rule 26(d)(4) for abuse of discretion. Townhomes at Pointe 

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

UT App 52, ¶ 13, 329 P.3d 815.5

 

4. Baumann does not contest the district court’s determination 

that expert witness testimony was necessary to prove her claims 

and, thus, that summary judgment was appropriate in the 

absence of such testimony, nor does Baumann contest the court’s 

ruling that there was no good cause for her failure to disclose her 

expert witnesses. We, therefore, do not address those issues here.

5. Townhomes at Pointe Meadows Owners Association v. Pointe 

Meadows Townhomes, LLC, 2014 UT App 52, 329 P.3d 815, was 

decided under the pre-2011 versions of rules 26 and 37. See id.

¶ 13 n.2. Prior to 2011, rule 26 did not include a ‚failure to 

disclose‛ provision, as it does today. Thus, a party’s failure to 

disclose an expert witness under rule 26(a) was then governed 

by rule 37(f):

If a party fails to disclose a witness . . . as required 

by Rule 26(a) . . . that party shall not be permitted 

to use the witness . . . at any hearing unless the 

failure to disclose is harmless or the party shows 

good cause for the failure to disclose.

(continued...)
Baumann v. The Kroger Company

20150078-CA 6 2016 UT App 165

ANALYSIS

I. Dr. Tayler Expert Report

¶9 Baumann argues that the district court abused its 

discretion by not allowing her to designate an additional expert 

 

(...continued)

Utah R. Civ. P. 37(f) (2010). In 2011, however, amendments to the 

Utah Rules of Civil Procedure included a provision similar to 

rule 37(f) in rule 26(d)(4), which governs this case:

If a party fails to disclose . . . a [witness], that party 

may not use the undisclosed witness . . . at any 

hearing or trial unless the failure is harmless or the 

party shows good cause for the failure. 

Id. R. 26(d)(4) (2012). Furthermore, as part of the 2015 

amendments, the former rule 37(f) was deleted, because ‚the 

effect of non-disclosure is adequately governed by Rule 26(d).‛ 

Id. R. 37 (2016) advisory committee’s note to 2015 amendments.

Utah appellate decisions have referred to both rules 26 and 37 

when discussing the ramifications of a failure to disclose 

witnesses. The district court in this case referred to rule 26(d)(4), 

as do we. However, we also utilize rule 37(f) cases in our 

analysis because of their similar applicability. Because the 

substance of rule 26(d)(4) has remained unaltered since its 

inception, unless otherwise noted, we cite the 2016 version of the 

rule. 

Additionally, the accompanying note to the 2011 

amendments explains that the ‚may not use‛ language of rule 

26—like the ‚shall not be permitted to use‛ language of rule 

37—provides for a mandatory preclusion of materials, not a 

permissive sanction. See id. R. 26 (2012) advisory committee’s

note to 2011 amendments (stating that the noncompliant ‚party 

cannot use the undisclosed witness . . . absent proof that‛ the 

failure was either harmless or for good cause (emphases added)).
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20150078-CA 7 2016 UT App 165

report applicable to Dr. Tayler. This argument is unpreserved,

however, as Baumann concedes in her reply brief.

6

¶10 Generally, we will not consider an issue on appeal unless 

it has been preserved. Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 

P.3d 828. ‚Our preservation rule promotes both judicial 

economy and fairness. The rule furthers judicial economy by 

giv[ing] the [district] court an opportunity to address the 

claimed error, and if appropriate, correct it prior to an appeal.‛ 

Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT 

84, ¶ 28, 299 P.3d 990 (alterations in original) (citations and 

internal quotation marks omitted). ‚The only exceptions to this 

general rule are instances involving exceptional circumstances or 

plain error.‛ Id. ¶ 27. The Utah Rules of Appellate Procedure 

provide that ‚[t]he brief of the appellant shall contain . . . a 

statement of grounds for seeking review of an issue not 

preserved in the trial court.‛ Utah R. App. P. 24(a), (a)(5)(B). 

Baumann’s opening brief provides us no such statement.

7

 

6. Baumann did not file a motion or otherwise request 

permission to designate an expert as to Dr. Tayler during the 

proceedings before the district court.

7. In her reply brief, Baumann does argue that exceptional 

circumstances—her demonstrated ‚lack of understanding of the 

process and the significance of the schedule‛ and her ability as a 

disabled pro se plaintiff—justify departure from the preservation 

rule. ‚It is well settled that issues raised by an appellant in the 

reply brief that were not presented in the opening brief are 

considered waived and will not be considered by the appellate 

court.‛ Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (citation and 

internal quotation marks omitted).

Even so, while pro se appellants are entitled to ‚every 

consideration that may reasonably be indulged . . . , [a]s a 

general rule, a party who represents [herself] will be held to the 

same standard of knowledge and practice as any qualified 

(continued...)
Baumann v. The Kroger Company

20150078-CA 8 2016 UT App 165

¶11 Furthermore, Baumann’s specific argument—that the 

district court abused its discretion by refusing to allow her to 

submit an expert report applicable to Dr. Tayler—cannot prevail; 

the district court could not have abused its discretion in not

making a ruling it was never asked to make. We thus decline to 

review Baumann’s contentions as to an expert witness report 

applicable to Dr. Tayler.

II. Kroger Expert Report

¶12 The district court found that Baumann ‚failed to make 

expert disclosures‛ in accordance with the stipulation and rule 

26 and that there was ‚no good cause for *Baumann’s+ failure to 

make expert disclosures.‛ Accordingly, it precluded Baumann 

 

(...continued)

member of the bar.‛ Jacob v. Cross, 2012 UT App 190, ¶ 4, 283 

P.3d 539 (per curiam) (first alteration in original) (citations and 

internal quotation marks omitted). ‚Consequently, [r]easonable 

considerations do not include . . . attempt[ing] to redress the 

ongoing consequences of the party’s decision to function in a 

capacity for which [she] is not trained.‛ Id. (first and second 

alterations in original) (citation and internal quotation marks 

omitted). Our supreme court has explained that 

a lay[person] acting as [her] own attorney does not 

require the court to interrupt the course of 

proceedings to translate legal terms, explain legal 

rules, or otherwise attempt to redress the ongoing 

consequences of the party’s decision to function in 

a capacity for which [she] is not trained. Judges 

cannot be expected to perform that function.

Nelson v. Jacobsen, 669 P.2d 1207, 1213–14 (Utah 1983). Thus, 

while a pro se plaintiff ‚has the right to appear pro se . . . when a 

person chooses to do so, [she] must be held to the same standard 

as if [she] were represented by counsel.‛ Johnson v. Aetna Cas. 

& Surety Co. of Hartford, 630 P.2d 514, 517 (Wyo. 1981).
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20150078-CA 9 2016 UT App 165

‚from using any undisclosed witness, document, or material in 

opposition to the Motion for Summary Judgment filed by the 

Defendants‛ under rule 26(d)(4). Baumann argues that this was 

an abuse of discretion. She argues specifically that the district 

court should have applied rule 16(d) instead of rule 26(d) of the 

Utah Rules of Civil Procedure in accordance with the Utah 

Supreme Court’s decision in Coroles v. State, 2015 UT 48, 349 P.3d 

739. As the Coroles court stated, under rule 16(d), ‚a court ‘may’

impose a sanction described in rule 37(e) for a failure to abide by 

the scheduling order.‛ Id. ¶ 22. Under rule 26(d), however, a 

party who has failed to disclose a witness ‚may not use the 

undisclosed witness . . . at any hearing or trial unless the failure 

is harmless or the party shows good cause for the failure.‛ Utah 

R. Civ. P. 26(d)(4) (emphasis added). Baumann argues that 

applying rule 16’s permissive standard rather than rule 26’s

mandatory standard would have led to a more favorable result 

for her.

¶13 Rule 26 of the Utah Rules of Civil Procedure requires a 

party disclosing an expert witness ‚to submit a written report 

that contains specific information, such as the expert’s 

qualifications and the basis for and substance of the expert’s 

opinion.‛ Townhomes at Pointe Meadows Owners Ass’n v. Pointe 

Meadows Townhomes, LLC, 2014 UT App 52, ¶ 13, 329 P.3d 815

(citing Utah R. Civ. P. 26(a)(3)(B)). And importantly, as we stated 

above, ‚‘Utah law mandates that a trial court exclude an expert 

witness report disclosed after expiration of the established 

deadline’ unless the district court, in its discretion, determines 

that ‘good cause excuses tardiness’ or that the failure to disclose 

was harmless.‛ Id. (quoting Posner v. Equity Title Ins. Agency, Inc., 

2009 UT App 347, ¶¶ 8, 23, 222 P.3d 775).

¶14 Critically, a district court has ‚broad discretion in 

selecting and imposing sanctions for discovery violations‛ under 

rule 26. Tuck v. Godfrey, 1999 UT App 127, ¶ 15, 981 P.2d 407 

(citation and internal quotation marks omitted). ‚Appellate 

courts may not interfere with such discretion unless . . . there is 
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20150078-CA 10 2016 UT App 165

either an erroneous conclusion of law or no evidentiary basis for 

the trial court’s ruling.‛ Id. (internal quotation marks omitted).

¶15 Moreover, contrary to Baumann’s argument to the district 

court that bypassing her obligation to disclose her expert witness 

would have led to a speedier resolution in this case, Utah’s 

supreme court-appointed advisory committee on the Utah Rules 

of Civil Procedure has stated that

[m]ore complete disclosures increase the likelihood 

that the case will be resolved justly, speedily, and 

inexpensively. Not being able to use evidence that 

a party fails properly to disclose provides a 

powerful incentive to make complete disclosures. 

This is true only if trial courts hold parties to this 

standard. Accordingly, although a trial court 

retains discretion to determine how properly to 

address this issue in a given case, the usual and 

expected result should be exclusion of the 

evidence.

Utah R. Civ. P. 26 (2012) advisory committee’s notes to 2011

amendments. Thus, sound policy supports strict enforcement of 

this rule.

¶16 So, too, do the facts of this case. This is an old case. 

Baumann’s original claim arose in 2007. She filed a second suit 

under Utah’s savings statute. Baumann also stipulated to a 

discovery schedule requiring her to disclose expert witnesses to 

Defendants by June 6, 2014, and providing that expert 

discovery—including expert witness depositions—would close 

on September 5, 2014. Baumann then failed to provide an expert 

witness or report as to either Kroger or Dr. Tayler. Defendants

thus filed for summary judgment on September 11. After 

Baumann opposed Defendants’ motion for summary judgment, 

Defendants submitted the motion for decision on October 8, and 

the court scheduled a hearing on the motion for November 17. 
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20150078-CA 11 2016 UT App 165

The day of the hearing, Baumann filed an expert report as to 

Kroger without seeking leave of court to do so—and contrary to 

the district court’s order that it would not consider filings 

submitted after October 8. At the rescheduled January 5, 2015

hearing, Baumann’s arguments to the district court—that she 

was trying to dispose of the case economically and that

‚[p]rocedural formalities are not the law‛—were unpersuasive

and ultimately, the district court precluded Baumann ‚from 

using any undisclosed witness, document, or material in 

opposition to the Motion for Summary Judgment filed by the 

Defendants.‛

¶17 Nevertheless, Baumann argues that under Coroles v. State, 

2015 UT 48, 349 P.3d 739, the district court should have applied

rule 16(d), not rule 26(d)(4), of the Utah Rules of Civil Procedure

and that it abused its discretion in failing to do so. Baumann 

specifically argues that, according to Coroles, the source of the 

district court’s authority to sanction her ‚for producing untimely 

discovery under a scheduling order‛ is rule 16(d), not rule 26(d).

Baumann’s argument is similar to the appellant’s argument in

Sleepy Holdings LLC v. Mountain West Title, 2016 UT App 62, 370 

P.3d 963. While Sleepy Holdings dealt with initial disclosures and 

not an expert witness report, its analysis is apt and informs our 

decision here.

¶18 In Sleepy Holdings, the appellant argued that the district 

court abused its discretion when it excluded evidence under rule

26 of the Utah Rules of Civil Procedure and that it ‚should 

instead have applied the discretionary sanctions found in rule 

16(d).‛ Id. ¶ 19. This court explained that rule 16 ‚governs 

pretrial conferences, scheduling, and management conferences,‛ 

id. ¶ 20, whereas rule 26 ‚governs initial disclosures and 

discovery,‛ id. ¶ 21. We indicated that the ‚‘sanction of exclusion 

is automatic and mandatory unless the sanctioned party can show 

that the violation . . . was either justified or harmless.’‛ Id.
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20150078-CA 12 2016 UT App 165

(emphasis added) (quoting Dahl v. Harrison, 2011 UT App 389, 

¶ 22, 265 P.3d 139).8 We further noted that the district court 

sanctioned the appellant, Sleepy Holdings, for failure to disclose

and stated that ‚[t]he district court’s ruling repeatedly cites rule

26; it never mentions rule 16.‛ Id. ¶ 22. Thus, this court declined 

to apply Coroles, as Sleepy Holdings urged, because ‚Coroles did 

not interpret—or even mention—rule 26‛ and because rule 26 

appropriately authorized sanctions for failure to disclose. Id.

¶ 23.

¶19 So too here, where the district court refused to allow

Baumann to disclose or utilize any expert witnesses. The court’s 

order references only rule 26, not rule 16. Thus, rule 26 is 

controlling here because Baumann failed to disclose her expert

witness until the day of the hearing on Defendants’ joint motion 

for summary judgment on November 17, without seeking the 

court’s permission to do so. Consequently, the district court did 

not err in applying rule 26 when it found that Baumann was 

‚precluded by Rule 26(d)(4) from using any undisclosed witness, 

document, or material‛ to contest summary judgment at that 

hearing.

 

8. Baumann also argues that in addition to making a finding of 

no good cause, the district court was also required to make a 

finding of harmfulness. This, however, is not the case. See Sleepy 

Holdings LLC v. Mountain West Title, 2016 UT App 62, ¶ 21, 370 

P.3d 963. It is well settled that a district court’s exclusion of 

materials may be supported if the court makes a finding that 

there is either no good cause for the failure or that the failure is 

harmful. See Utah R. Civ. P. 26(d)(4) (explaining that a ‚party 

may not use the undisclosed witness, document or material at 

any hearing or trial unless the failure is harmless or the party 

shows good cause for the failure.‛ (emphasis added)); Bodell 

Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933. Thus, it is 

unnecessary for us to examine whether there was harm. This is 

not to suggest that the failure was harmless.
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20150078-CA 13 2016 UT App 165

¶20 Furthermore, Bodell Construction Co. v. Robbins, 2009 UT 

52, 215 P.3d 933, supports the district court’s characterization of 

Baumann’s action as a ‚failure to make expert report‛

disclosures rather than a failure to produce discovery timely 

under a scheduling order. In Bodell, the court affirmed the 

district court’s exclusion of plaintiff’s expert report in accordance 

with rule 37(f)—now subsumed in rule 26(d)(4)9—characterizing

an expert report submitted only three weeks after close of fact 

discovery as a ‚failure to disclose.‛ Id. ¶¶ 13, 34–37, 40. Using 

the same metric, Baumann’s report was filed twenty-five weeks 

after the close of fact discovery.

¶21 In this case, the district court’s order did not address 

Baumann’s violation of the scheduling order, but instead relied 

upon rule 26(d)(4), stating that Baumann could not now use 

‚any undisclosed witness, document, or material‛ to contest 

summary judgment. Thus, we believe Sleepy Holdings’ 

framework provides us with an alternate, more precise way to

approach the question of which rule applied in this case, i.e., not 

whether the district court made its ruling because Baumann 

violated a scheduling order or because she violated the rules of 

discovery, but because she did not disclose expert witnesses 

within the time confines of both the stipulated discovery 

schedule and the district court’s order cutting off filings after 

October 8. See supra ¶¶ 17–19.

¶22 Because the district court correctly precluded Baumann 

from using her undisclosed expert witness report to contest 

summary judgment under rule 26(d)(4) of the Utah Rules of 

Civil Procedure, we affirm.

 

9. See supra note 5 for our analysis of the applicability to this 

discussion of pre-2011 amendment cases affirming under rules 

26 and 37.
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CONCLUSION

¶23 Baumann’s argument as to any expert report applicable to 

Dr. Tayler was not preserved in the district court, and we 

therefore do not consider it. As to the expert report applicable to 

Kroger, under the order of the district court, rule 26(d)(4)—not 

rule 16(d)—of the Utah Rules of Civil Procedure applied when 

Baumann failed to disclose the details of her proposed expert. 

The district court did not abuse its discretion in precluding her 

from using expert witness testimony to contest summary 

judgment under rule 26. For the foregoing reasons, we affirm.