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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 36980

JOSE L. AGUILAR, JR., individually, as 

the personal representative of the Estate of 

Jose F. Aguilar, deceased and the Estate of 

Maria A. Aguilar, deceased, JOSE L. 

AGUILAR, JR. and JENNIFER 

AGUILAR, as the legal guardian of 

LORENA AGUILAR, a minor; and 

GUADALUPE MARIA AGUILAR and 

ALEJANDRO AGUILAR, heirs of Maria 

A. Aguilar, deceased.

 Plaintiffs-Respondents,

v.

NATHAN COONROD, M.D., and 

PRIMARY HEALTH CARE CENTER, an 

Idaho corporation,

 Defendants-Appellants,

and

ANDREW CHAI, M.D, STEVEN R. 

NEWMAN, M.D., MITCHELL LONG, 

D.O., and JOHN AND JANE DOES I 

through X, employees of one or more of the 

defendants,

 Defendants.

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Boise, May 2011 Term

2011 Opinion No. 99

Filed: September 14, 2011

Stephen W. Kenyon, Clerk 

Appeal from the District Court of the Third Judicial District, State of 

Idaho, Canyon County. Hon. Gregory M. Culet, District Judge.

District court decision denying motion for new trial, affirmed.

Powers, Tolman, PLLC, Boise, for appellants. Steven J. Hippler and 

David C. Frederick argued.

Comstock & Bush, Boise, for respondents. John A. Bush argued. 

__________________________________
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BURDICK, Chief Justice

This case comes before this Court on appeal from a jury verdict entered in a 

wrongful death case in favor of Jose Aguilar, Guadalupe Aguilar, Alejandro Aguilar, 

Lorena Aguilar and Jose Aguilar, Jr. (collectively, “the Aguilars”) against Dr. Nathan 

Coonrod, his employer Primary Health Care Center (Primary Health) and employees of 

Primary Health (collectively, hereinafter “Dr. Coonrod”). On appeal Dr. Coonrod asserts 

that the district court abused its discretion in barring him from questioning the Aguilars’ 

expert, Dr. Blaylock, about his opinion as to the professional negligence of Dr. Chai and 

Dr. Long (two previous defendants who settled or were dismissed prior to trial) in their 

treatment of Maria Aguilar (Maria), either on cross-examination or during his case in 

chief. Dr. Coonrod alleges that the district court also abused its discretion in forbidding 

him to read portions of Dr. Blaylock’s deposition into the record. Finally, Dr. Coonrod 

alleges that the district court erred in interpreting the statutory cap on non-economic 

damages, I.C. § 6-1603, as applying to each of the Aguilars individually instead of 

collectively. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 23, 2003, Maria saw Dr. Atup-Leavitt at Primary Health due to 

shortness of breath, nausea and dizziness, and was diagnosed with anemia. On April 26, 

2003, Maria was seen by Dr. Blahd at the West Valley Medical Center emergency room, 

and was again discharged with a diagnosis of anemia. Dr. Coonrod first examined Maria 

on April 28, 2003, at Primary Health, where she reported shortness of breath and a rapid 

pulse. Between April 28 and Maria’s death on June 4, 2003, Maria saw Dr. Coonrod an 

additional six times, the last time was on the morning of the day she died. During this 

time, Maria was also seen by: Dr. Gibson (a gastroenterologist) twice; Dr. Long (a doctor 

at Mercy Medical Center’s emergency room); Dr. Chai (a cardiologist at Mercy Medical 

Center); Dr. Thomas (a doctor at Mercy Medical Center’s emergency room); Dr. Field (a 

cardiologist at Mercy Medical Center); and Dr. Newman (a doctor in West Valley 

Medical Center’s emergency room). Maria was determined to have died of a pulmonary 

embolus; a clot had formed at the arch of her pulmonary artery, blocking the flow of 

blood from the right chamber of her heart into her lungs.
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On June 2, 2005, the Aguilars filed suit against Drs. Chai, Newman, Long, 

Coonrod and Atup-Leavitt, along with their employers, alleging that the defendants 

breached the relevant standards of medical care in failing to diagnose Maria’s condition 

and that this negligence resulted in her death. On December 18, 2006, the Aguilars filed 

an amended complaint. Dr. Atup-Leavitt, Mercy Medical Center and West Valley 

Medical Center were dismissed relatively early in the litigation process. Dr. Chai was 

dismissed from the case on June 2, 2009. Dr. Long settled with the Aguilars, and was 

dismissed from the case on June 15, 2009. When trial began the only remaining 

defendants were Dr. Newman, Dr. Coonrod and Primary Health.

On December 29, 2006, Dr. Coonrod filed an answer to the Aguilars’ amended 

complaint raising, inter alia, the affirmative defense of comparative negligence. On 

January 15, 2008, the Aguilars made their first expert witness disclosure, disclosing, 

amongst others, Dr. Blaylock, and noting that he was expected to testify that Dr. Long, 

Dr. Chai, Dr. Coonrod and Dr. Newman violated the standard of care for their respective 

practice areas and that these violations were a substantial factor in Maria’s death. 

Through numerous supplementations of their expert witness disclosures, the Aguilars

consistently indicated that Dr. Blaylock was expected to testify that these four doctors 

were negligent.

On February 27, 2009, the Aguilars made a motion in limine seeking, inter alia, to 

preclude Dr. Coonrod from making any reference to any defendant who settled or was 

dismissed from the case prior to trial. The district court heard argument on that motion 

on April 22, 2009, and Dr. Coonrod argued that he should be permitted to question Dr. 

Blaylock regarding his previously disclosed opinions as to the negligence of any doctor 

who was dismissed or settled prior to trial. At that time the district court specifically 

considered whether Dr. Coonrod could question Dr. Blaylock to establish negligence on 

the part of Dr. Long. The court declined to make a ruling at that time, inviting further 

submission of authority by both parties. During trial the court again heard argument on 

this issue, outside the presence of the jury, and ruled that Dr. Coonrod could not call Dr. 

Blaylock in his case in chief, on the basis that Dr. Coonrod had not adequately disclosed 

Dr. Blaylock as an expert he intended to call at trial. However, the court declined to 

make a final determination as to whether Dr. Coonrod could question Dr. Blaylock on 
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cross-examination as to his opinion of the standard of care provided by Dr. Long and Dr. 

Chai. The court deferred that ruling, finding that it would necessarily depend on what 

was within the scope of direct examination and what seemed like appropriate 

impeachment questioning.

The district court allowed Dr. Coonrod to question Dr. Blaylock outside the 

presence of the jury, on April 29, 2009, to make an offer of proof in the record as to what

he would have asked Dr. Blaylock before the jury had he been given the opportunity. 

This offer of proof was supplemented with additional questioning outside the presence of 

the jury on the morning of April 30, 2009.

The jury returned a verdict against Dr. Coonrod on May 13, 2009, and a judgment 

was entered on May 20, 2009. On May 28, 2009, Dr. Coonrod filed a motion for a new 

trial on the basis that it was an abuse of discretion and/or error in law to bar him from 

asking Dr. Blaylock his opinion as to the negligence of Dr. Long and Dr. Chai. Dr. 

Coonrod also argued that it was an abuse of discretion and/or error in law to list each 

plaintiff individually, rather than collectively, on the jury form for noneconomic 

damages. The jury found that Dr. Newman had not breached the standard of care, and he 

settled with the Aguilars following the conclusion of trial and was dismissed on June 25, 

2009. The district court heard oral argument on Dr. Coonrod’s May 28 motion on July 1, 

2009, and denied that motion in a memorandum decision entered on August 25, 2009. 

An amended judgment was entered on September 19, 2009, and Dr. Coonrod filed his 

notice of appeal with this Court on September 29, 2009.

II. ANALYSIS

A. The district court did not abuse its discretion in refusing to allow Dr. Coonrod to 

cross-examine Dr. Blaylock, or present evidence in its case in chief, about Dr. 

Blaylock’s deposition testimony that Dr. Long and Dr. Chai had acted negligently in 

their treatment of Maria, breaching the standard of care, and that negligent 

treatment was a substantial factor in Maria’s death.

Dr. Coonrod argues that the district court erred in finding that Dr. Coonrod could 

not cross-examine Dr. Blaylock (the Aguilars’ expert witness) about his opinion offered 

during his deposition that two other doctors, Long and Chai, also breached the standard 

of care in failing to diagnose Maria, and that five other doctors who had seen Maria

during the relevant period had not breached the standard of care. The court likewise 

forbade Dr. Coonrod from questioning Dr. Blaylock about his deposition testimony 
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during Dr. Coonrod’s case in chief. Dr. Coonrod contends that the district court 

erroneously found that White v. Mock, 140 Idaho 882, 104 P.3d 356 (2004), compelled it 

to deny this line of questioning on the basis that Dr. Coonrod’s expert disclosures were 

too general. 

1. Standard of Review

As this Court stated in White v. Mock:

The Court reviews a trial court's decision admitting or excluding

evidence, including the testimony of expert witnesses, under the abuse of 

discretion standard. The test for determining whether the district court 

abused its discretion is: (1) whether the court correctly perceived that the 

issue was one of discretion; (2) whether the court acted within the outer 

boundaries of its discretion and consistently with the legal standards 

applicable to the specific choices available to it; and (3) whether it reached 

its decision by an exercise of reason.

140 Idaho at 888, 104 P.3d at 362 (internal citations omitted). Typically, where the 

disclosure requirements of I.R.C.P. 26 are not met, an improperly disclosed expert will be 

excluded from testifying. Id. The decision to grant or deny a motion for a new trial is 

likewise reviewed by this Court under an abuse of discretion standard. Kuhn v. Coldwell 

Banker Landmark, Inc., 150 Idaho 240, __, 245 P.3d 992, 999 (2010). Where an 

incorrect ruling was made regarding evidence, a new trial is only merited if the error 

affects a party’s substantial right. Clark v. Klein, 137 Idaho 154, 156, 45 P.3d 810, 812 

(2002).

2. The district court did not abuse its discretion in barring Dr. Coonrod from 

calling Dr. Blaylock during his case in chief.

i. The district court did not abuse its discretion in barring Dr. Coonrod 

from calling Dr. Blaylock during his case in chief, based on his finding 

that Dr. Coonrod had provided inadequate notice of his intent to call Dr. 

Blaylock, pursuant to I.R.C.P. 26(b)(4)(A)(i).

Here, the first and third parts of the abuse of discretion test were clearly met by 

the district court; it recognized that the decision whether or not to allow evidence to be 

presented to the jury was one of discretion, and it exercised considerable reason in 

reaching that decision. Our only remaining inquiry is whether the court acted consistent

with the applicable legal standards. The court noted that it was barring Dr. Coonrod from 

calling Dr. Blaylock during his case in chief because Dr. Coonrod had not properly 
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disclosed Dr. Blaylock as an expert witness he expected to call at trial under I.R.C.P. 

26(b)(4)(A). 

Idaho Rule of Civil Procedure 26(b)(4) provides, inter alia:

Discovery of facts known and opinions held by experts, expected to 

testify, otherwise discoverable under the provisions of subdivision (b)(1) 

of this rule and acquired or developed in anticipation of litigation or for 

trial, may be obtained by interrogatory and/or deposition, including:

(A) (i) A complete statement of all opinions to be expressed and the basis 

and reasons therefore; the data or other information considered by the 

witness in forming the opinions; any exhibits to be used as a summary of 

or support for the opinions; any qualifications of the witness, including a 

list of all publications authored by the witness within the preceding ten 

years; the compensation to be paid for the testimony; and a listing of any 

other cases in which the witness has testified as an expert at trial or by 

deposition within the preceding four years.

It is clear that Dr. Coonrod’s disclosures did not comply with the requirements of 

I.R.C.P. 26(b)(4)(A)(i). 

The Aguilars sent Dr. Coonrod several interrogatories pertaining to both his 

affirmative defense and his retained experts, requesting information regarding which 

other doctors Dr. Coonrod alleged had breached the standard of care and the experts that 

would testify as such. Although Dr. Coonrod disclosed numerous experts, he never 

identified an expert he intended to call to establish his affirmative defense that other 

medical providers had violated the standard of care. The most that Dr. Coonrod did was 

claim a general reservation of rights to call the experts disclosed by the Aguilars, which 

this Court specifically found to be insufficient to comply with the requirements of 

I.R.C.P. 26(b)(4). White, 140 Idaho at 889, 104 P.3d at 363. See also Gallo v. Peninsula 

Hospital, 211 Cal. Rptr. 27, 30–31 (Cal. Ct. App. 1985).

These are the disclosures Dr. Coonrod offered, as they pertain to Dr. Blaylock: 

(1) on April 22, 2008, in his expert witness disclosure, “RESERVATIONS Defendants 

reserve the right to call any and all expert witnesses disclosed by Plaintiffs . . . .”; (2) in a 

supplemental disclosure filed October 17, 2008, “Any and all individuals identified as an 

expert witness by plaintiff in their present and future discovery answers or formal 

disclosure documents. Any and all individuals called to testify as an expert witness by 

plaintiffs.” Clearly these disclosures do not offer sufficient detail to comply with the 

requirements of the Idaho Rules of Civil Procedure.
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Dr. Coonrod did offer some additional disclosures regarding Dr. Blaylock, in 

response to interrogatories, though these responses were not received until after: (1) the 

discovery deadline had passed, and (2) the Aguilars filed a motion in limine seeking to 

preclude Dr. Coonrod from offering the affirmative defense of comparative fault due to 

his failure to disclose any experts who would be testifying to such. The disclosures were 

as follows: (1) In a supplemental answer to interrogatory no. 3 of the Aguilars, which 

asks for disclosure of those expected to testify along with the general nature of the facts 

to which they will testify, on March 9, 2009,1 Dr. Coonrod included “Paul Blaylock, MD: 

It is anticipated that Dr. Blaylock will testify consistent with his opinions previously 

disclosed.”; (2) In supplemental response to an interrogatory asking for disclosure of 

experts and the subject matter, facts and opinions as to which they will testify, Dr. 

Coonrod responded, in relevant part: “[P]lease see Plaintiffs’ Expert Witness Disclosures 

(original disclosure and all supplements thereto) and Plaintiffs’ Rebuttal Expert Witness 

Disclosures, which are incorporated by reference as if fully set forth herein. To the 

extent any other defendant in this action is dismissed prior to trial, this defendant reserves 

the right to call or cross-examine plaintiffs’ expert witnesses at trial.”; and (3) In response 

to an interrogatory concerning Dr. Coonrod’s affirmative defense of comparative fault, he 

again identifies the Aguilars’ expert witness disclosures and states that they are 

incorporated by reference, and specifically directs the Aguilars to the deposition 

testimony of Dr. Blaylock, and this same information is provided in response to several 

more interrogatories. 

The final reference made to Dr. Blaylock by Dr. Coonrod was filed on April 27, 

2009, in his supplemental trial brief: “It is the defendants’ intent to utilize plaintiffs’ 

expert witnesses to show that non-parties were negligent in the above-entitled case. 

Specifically, defendants propose to call plaintiffs’ expert witness, Dr. Paul Blaylock, 

M.D., to establish the negligence of the non-parties in this case.” Even if all of the above 

had been timely filed, and properly included as expert disclosures, it would have been 

insufficient to meet the standard articulated in I.R.C.P. 26(b)(4). Therefore, we hold that 

the district court’s decision was consistent with the applicable legal standards and did not 

 1 It is noted by the parties that this document was provided to the Aguilars on March 3, 2009, though it 

wasn’t officially filed until March 9. The stipulated discovery deadline was March 1, 2009.
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constitute an abuse of discretion. Dr. Coonrod was properly barred from calling Dr. 

Blaylock in his case in chief.

Where a medical-care-provider defendant wishes to plead an affirmative defense 

of comparative negligence, it is incumbent upon them to obtain an expert to testify as to 

the negligence of other medical-care providers. Best policy would be for such a 

defendant to retain their own expert, but in the event they wish to attempt to meet their 

burden of proof by calling the expert of their opponent, they must fully comply with the 

requirements of the Idaho Rules of Evidence. A defendant must be just as specific in 

their disclosures of an opponent’s retained expert, whom the defendant intends to call, as 

they would be if disclosing their own independently retained expert. Without such 

disclosures, and adequate interrogatory responses, it is difficult for a plaintiff to properly 

prepare its strategy for countering a comparative negligence affirmative defense. 

Here, Dr. Coonrod had the burden of proof to offer expert testimony that another 

medical-care provider was negligent, in order to establish his affirmative defense of 

comparative negligence. He chose not to engage an expert to testify on that issue, and 

failed to provide responses to interrogatories that timely notified the Aguilars which 

medical-care providers Dr. Coonrod was alleging had violated the standard of care. A 

substantial policy consideration underlying the expert witness disclosure requirements of 

the rules of evidence is to provide each party with fair notice and an opportunity to 

prepare for trial. Dr. Coonrod’s general reservation of the right to call “any expert” or his 

blanket and generic notice that he might call each expert (individually named) “consistent 

with his opinions previously disclosed” did not fairly provide the Aguilars with an 

opportunity to prepare their case. Dr. Coonrod made the tactical decision not to retain an 

expert on the issue of comparative negligence, and he must deal with the consequences of 

that decision.

ii. Whether the district court abused its discretion in failing to allow Dr. 

Coonrod to call Dr. Blaylock during his case in chief on other grounds.

Aside from his failure to properly disclose Dr. Blaylock as an expert he expected 

to call at trial under the Idaho Rules of Civil Procedure, Dr. Coonrod argued that he still 

should have been permitted to read Dr. Blaylock’s deposition into the record himself 

under I.R.C.P. 32(a)(3)(B). Idaho Rule of Civil Procedure 32(a) is titled “Use of 

depositions” and provides, in relevant part:
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At trial or upon the hearing of a motion for an interlocutory 

proceeding, any part or all of a deposition, so far as admissible under the 

rules of evidence applied as though the witness were then present and 

testifying, may be used against any party who was present or represented 

at the taking of the deposition or who had reasonable notice thereof, in 

accordance with any of the following provisions: . . .

(3) The deposition of a witness, whether or not a party, may be 

used by any party for any purpose if the court finds: . . . (B) that the 

witness is at a greater distance than 100 miles from the place of trial or 

hearing, or is out of the state of Idaho, unless it appears that the absence of 

the witness was procured by the party offering the deposition . . . .

(Emphasis added). Dr. Coonrod argues that because Dr. Blaylock resides outside of 

Idaho and was more than 100 miles away from the locus of the trial, following Dr 

Blaylock’s testimony at that trial, Dr. Coonrod should have been permitted to read Dr. 

Blaylock’s deposition into the record. Idaho Rule of Civil Procedure 32 makes the 

following condition for the use of any deposition testimony: “so far as admissible under 

the rules of evidence applied as though the witness were then present and testifying”.

Here Dr. Blaylock was present, and did testify, and the court found that Dr. Coonrod 

could not properly call him to ask about his deposition testimony. Thus, having already 

determined that the rules of civil procedure precluded Dr. Coonrod from calling Dr. 

Blaylock to ask him about his opinion as to the negligence of Dr. Chai and Dr. Long, 

those rules would also preclude reading the deposition into the record for the same 

purpose. It is evident from the structure of the rule that it is anticipated that a deposition 

of a potential witness will be read into the record only where that potential witness does 

not actually testify.

Dr. Coonrod also argues that Dr. Blaylock’s testimony should have been 

permitted as it was necessary to allocate fault fairly and avoid a duplicate recovery. Dr. 

Coonrod points out that without expert testimony opining that another party was 

negligent, he could not have anyone else placed on the special verdict form for 

comparative negligence purposes, see I.C. §§ 6-1012, 6-1013, and that there is a general 

policy to have all potentially responsible parties included on the special verdict form. See 

Pocatello Indus. Park Co. v. Steel West, Inc., 101 Idaho 783, 621 P.2d 399 (1980). This 

argument lacks merit. It was Dr. Coonrod’s burden to proffer expert testimony that other 

healthcare providers were negligent, if he wished for those providers to be included on 

the special verdict form. 
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3. The district court did not abuse its discretion in barring Dr. Coonrod from 

questioning Dr. Blaylock at cross-examination as to his opinion that Dr. Long and 

Dr. Chai had breached the standard of care.

Dr. Coonrod argues that he should have been permitted to question Dr. Blaylock 

at cross-examination regarding Dr. Blaylock’s previously expressed belief that Dr. Chai 

and Dr. Long had breached the standard of care, on the basis that such cross-examination 

would not have exceeded the scope of direct examination, and that it was relevant 

information for impeachment. Dr. Coonrod asserts that the district court abused its 

discretion in barring him from cross-examining Dr. Blaylock on these issues. We 

disagree.

The district court declined to rule as to whether Dr. Coonrod could cross-examine

Dr. Blaylock on this subject matter during the pretrial hearing. During trial, on the 

morning of April 29, 2009, immediately prior to Dr. Blaylock’s testimony, the district 

court again considered the issue, and again deferred making a final ruling as to what 

would be permitted on cross-examination, noting that it would necessarily depend upon 

what was brought up during direct examination and what seemed like appropriate 

impeachment questioning. At the end of cross-examination, Dr. Coonrod’s counsel made 

an offer of proof into the record, outside the presence of the jury, to show what he would 

have asked Dr. Blaylock if he had been given the opportunity to do so.

Idaho Rule of Evidence 611(b) governs the scope of cross-examination, and 

provides that “[c]ross-examination should be limited to the subject matter of the direct 

examination and matters affecting the credibility of the witness. The court may, in the 

exercise of discretion, permit inquiry into additional matters as if on direct examination.”

In the offer of proof Dr. Blaylock testified that he had previously opined that Dr. 

Chai and Dr. Long had each breached the standard of care. Dr. Blaylock had not been 

questioned as to his opinion of the conduct of Dr. Chai or Dr. Long on direct 

examination; it was clearly beyond the scope of direct. Dr. Coonrod argues that the issue 

was proper impeachment questioning because it “would have directly contradicted Dr. 

Blaylock’s trial testimony and was thus proper impeachment.” Nowhere in Dr. 

Blaylock’s testimony offered at trial did he offer the opinion that Dr. Chai or Dr. Long 

had not breached the standard of care, nor did he ever state that Dr. Coonrod and Dr. 

Newman’s negligence alone was the cause of Maria’s death. This line of proposed 
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questioning did nothing to impeach Dr. Blaylock as it was not inconsistent with anything 

he offered in his direct testimony. 

Likewise, Dr. Coonrod argues that if he had been permitted to ask Dr. Blaylock 

about his opinion as to the negligence of Dr. Long, Dr. Newman and the five other 

doctors who had seen Maria during the relevant time period, it would have shown bias. 

Dr. Coonrod’s argues that by demonstrating that Dr. Blaylock had only found those 

doctors who were named in the lawsuit had acted negligently, and that other doctors who 

saw Maria during the relevant period had not, he could have shown that Dr. Blaylock was 

biased in his opinion. This argument is without merit. A showing that Dr. Blaylock had 

found that the non-party doctors were not negligent does not indicate bias; rather, it 

shows that the Aguilars’ expert did not believe these medical providers had breached the 

standard of care, and thus the Aguilars did not include them in the lawsuit. It is clear that 

the real purpose for which Dr. Coonrod wanted to cross-examine Dr. Blaylock was to get 

him to offer his opinion that Dr. Chai and Dr. Long had acted negligently, so that they 

might be included on the special verdict form. We therefore find that the district court 

did not abuse its discretion in barring Dr. Coonrod from questioning Dr. Blaylock on 

cross-examination regarding his opinion as to the negligence of Dr. Chai and Dr. Long, 

or the five non-party doctors.

B. The noneconomic damages cap in Idaho Code § 6-1603 limits the noneconomic 

damages award available in a wrongful death case as it applies to each heir 

individually.

Dr. Coonrod next argues that the district court erred in applying the I.C. § 6-1603 

cap on noneconomic damages to each individual plaintiff rather than to the Aguilars as a 

collective group.

1. Standard of Review

Interpretation of statute is purely a question of law over which this Court 

exercises free review. State, ex rel. Wasden v. Maybee, 148 Idaho 520, 528, 224 P.3d 

1109, 1117 (2010). Statutory interpretation begins with the literal words of the statute, 

giving those words their ordinary meaning, and construing the statute as a whole. Id. 

Where the literal words of a statute provide clear guidance the statute is deemed 

unambiguous and shall be interpreted according to its plain meaning. Id. Where a statute 

is capable of more than one reasonable construction, this Court will look beyond the 
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literal words of the statute and consider the reasonableness of each proposed 

construction, the public policy underlying the statute and its legislative history. Id. 

2. Idaho Code § 6-1603 imposes a noneconomic damages cap on an individual 

basis.

At the time relevant to this action, I.C. § 6-1603 read, inter alia, as follows:

LIMITATIONS ON NONECONOMIC DAMAGES. (1) In no action 

seeking damages for personal injury, including death, shall a judgment for 

noneconomic damages be entered for a claimant exceeding the maximum 

amount of four hundred thousand dollars ($400,000); provided, however, 

that beginning on July 1, 1988, and each July 1 thereafter, the cap on 

noneconomic damages established in this section shall increase or 

decrease in accordance with the percentage amount of increase or decrease 

by which the Idaho industrial commission adjusts the average annual wage 

as computed pursuant to 72-409(2), Idaho Code. (2) The limitation 

contained in this section applies to the sum of: (a) noneconomic damages 

sustained by a claimant who incurred personal injury or who is asserting a 

wrongful death; (b) noneconomic damages sustained by a claimant, 

regardless of the number of persons responsible for the damages or the 

number of actions filed.

Act of 1987, ch. 278, S.L. pp. 575–76. The parties both agree that the applicable 

maximum amount of damages available, per claimant, under the relevant version of I.C. §

6-1603 is $682,200.65. Idaho Code § 6-1601 defines “claimant” as “any party to a civil 

action making a claim for relief, legal or equitable, compensatory or noncompensatory.”

The literal words of I.C. § 6-1603 provide clear guidance as to its meaning, as 

such we decline to consider any argument pertaining to legislative intent or public policy. 

Although Dr. Coonrod argues that the history of wrongful death actions suggests that this 

Court should interpret “claimant” differently in a wrongful death case than it would in a 

personal injury case, nothing in the language of I.C. § 6-1603 itself suggests this 

distinction. If the legislature had intended for this Court to interpret a term differently 

depending on the type of action brought, it would have written the statute accordingly. 

From a plain reading of I.C. § 6-1603, the noneconomic damages cap applies to each 

individual bringing a cause of action, not on a per-claim basis.

C. Attorney fees.

Dr. Coonrod seeks attorney fees on appeal, citing I.A.R. 40 and 41 and I.C. § 12-

121, but offers no argument supporting his request. “[I]n order to be entitled to attorney 

fees on appeal, authority and argument must be presented in the first brief filed by a party 
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with this Court. A citation to statutes and rules authorizing fees, without more, is 

insufficient.” Carroll v. MBNA Am. Bank, 148 Idaho 261, 270, 220 P.3d 1080, 1089 

(2009) (emphasis added) (internal citation omitted). As Dr. Coonrod merely cites to 

statutes and makes no argument concerning attorney fees, he is not entitled to attorney 

fees. In addition Dr. Coonrod is not the prevailing party.

III. CONCLUSION

We affirm the district court’s denial of Dr. Coonrod’s motion for a new trial, 

finding that the district court did not abuse its discretion in barring Dr. Coonrod from 

questioning Dr. Blayock on the issue of the purported negligence of Dr. Chai and Dr. 

Long. Dr. Coonrod failed to properly disclose Dr. Blaylock as an expert he intended to 

call, and he was thus barred from calling him during his case in chief. The areas that Dr. 

Coonrod was barred from questioning Dr. Blaylock about on cross-examination went 

beyond the scope of Dr. Blaylock’s direct testimony and were not proper impeachment. 

We hold that the district court correctly found that I.C. § 6-1603’s limitation on 

noneconomic damages applies on a per claimant basis, rather than a per claim basis. 

Costs to the Aguilars.

Justices EISMANN, J. JONES and HORTON, CONCUR.

Justice W. JONES, concurring in part and dissenting in part. 

I concur in part and respectfully dissent in part from the Opinion of the Majority. 

Although I concur with the Majority’s holding that the district court did not abuse 

its discretion in preventing Dr. Blaylock from being called in Dr. Coonrod’s case-inchief, I must dissent from its conclusion that the district court did not abuse its discretion 

when it prevented Dr. Coonrod from questioning Dr. Blaylock on cross-examination, 

because I believe the subject matter of the questioning would have been well within the 

scope of direct examination. 

First, I concur in the holding regarding timeliness and the adequacy of expert 

disclosures solely because the decision regarding disclosure of expert witnesses and their 

opinions is within the discretion of the trial judge and I cannot say that the judge abused 

his discretion as to this matter. However, I do believe the holding rests on shaky 

reasoning. The Majority holds that Dr. Coonrod’s disclosure of Dr. Blaylock as a witness 
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is inadequate because “even if [the disclosures] had been timely filed, and properly 

included as expert disclosures, it would have been insufficient to meet the standard 

articulated in I.R.C.P. 26(b)(4).” 

I respectfully disagree. Dr. Coonrod explicitly and specifically identified Dr. 

Blaylock as a witness he intended to call and he identified the subject matter of his 

testimony, the facts and data upon which that testimony was based, as well as the 

qualifications of Dr. Blaylock. The fact that Dr. Coonrod provided that information by 

way of reference to and incorporation of the content of the deposition and the content of 

the plaintiff’s expert witness disclosures, under the facts of this case, was sufficient to 

comply with the discovery rules. It seems nonsensical to me, under the circumstances of 

this case, to require a defendant to re-type the entire relevant content of the deposition as 

well as the entire content of plaintiff’s disclosure as to Dr. Blaylock when those 

documents were clearly incorporated. 

The plaintiffs were already well aware of the content of Dr. Blaylock’s expected 

testimony long before trial. Certainly then, there is no prejudice to plaintiffs that Dr. 

Coonrod did not fully regurgitate all of the information already known to and supplied by 

the plaintiff. In the present case, whether the timeliness of these disclosures as well the 

adequacy of the responses to interrogatories caused any prejudice to plaintiffs is highly 

questionable. I defer to the trial court’s ruling on this issue solely because it was within 

his discretion. If I were entitled to substitute my discretion, I clearly would have held the 

disclosures adequate, even though slightly late, unless the plaintiff could show some 

prejudice. State v. Anderson, 145 Idaho 99, 105, 175 P.3d 788, 794 (2008) (holding that 

the magistrate did not abuse his discretion by not excluding expert testimony from trial 

even though it was not properly disclosed because the aggrieved party “was unable to 

show any prejudice as a result” of the violation). Since they already knew the full 

content of Dr. Blaylock’s testimony and the parts favorable to the defendant, I see no way 

they could have been prejudiced. In nearly every trial there are issues of adequacy and 

timeliness of discovery and disclosures on both sides of the controversy. Although I 

believe the rules should be enforced, I also recognize reality in the trial process, having 

tried more than 120 cases to a jury verdict in private practice, and believe that unless 

there is some prejudice to a party there should be some laxity allowed in the requirements 
15

of such rules, simply because the primary objective is to reach the truth based on all of 

the substantive admissible evidence rather than on strict adherence to procedural rules 

when no prejudice is involved. Id. 

To be clear, I do not condone the practice of late and/or inadequate disclosures 

because I believe that under normal circumstances the opposing party could perhaps be 

prejudiced. While I agree that it is clearly better practice to completely comply with 

deadlines and the requirements of the rules, I think the unique facts of the present case 

indicate that sufficient leeway should have been allowed in order to reach a decision on 

the merits of the case. However, as I have already stated, given the standard of review, I 

concur with the Majority that there was no abuse of discretion 

Another matter on which I wish to comment is the statement in the Majority 

Opinion that “[i]n the event they [defendants] wish to attempt to meet their burden of 

proof by calling the expert of their opponent, they must fully comply with the 

requirements of the Idaho Rules of Evidence.” I do not see anything in the Rules of 

Evidence that would preclude the admissibility of Dr. Blaylock’s proffered testimony, 

even though under the Idaho Rules of Civil Procedure the disclosures may not have been 

timely. Again, I do not think any violation of the timeliness requirements created any 

prejudice. I note that the discovery deadline was March 1, 2009 and Dr. Coonrod served 

his answers to interrogatories on the Aguilars on March 3, 2009, even though the answers

were not officially filed, which is not normally required anyway, until March 9. Missing 

the deadline by two days can hardly be prejudicial when the plaintiffs already knew all of 

the substantive material and trial was still approximately two months away.

Although it may be the better practice for a defendant asserting the defense of 

comparative negligence to retain his or her own expert, I see nothing in the rules or the 

case law that would prevent a defendant from relying upon testimony of the opposing 

party’s expert, if desired. 

Idaho Rule of Civil Procedure 1(a) states that the “rules shall be liberally

construed to secure the just, speedy and inexpensive determination of every action and 

proceeding.” (emphasis added). This Court has reaffirmed the purpose of this rule. Sines 

v. Blaser, 98 Idaho 435, 439, 566 P.2d 758, 762 (1977) (stating that I.R.C.P. 1 “is a 

constant reminder that the rules are to be liberally construed, and a just result is always 
16

the ultimate goal to be accomplished.”). This Court has previously endorsed a liberal 

application of the disclosure rules by affirming the district court’s decision to allow an 

expert witness who was not timely disclosed to testify on rebuttal. McDonald v. Safeway 

Stores, Inc., 109 Idaho 305, 309, 707 P.2d 416, 420 (1985). The relevant inquiry should 

be whether or not the interests of justice are served. See Edmunds v. Kraner, 142 Idaho 

867, 873, 136 P.3d 338, 344 (2006) (“The purpose of our discovery rules is to facilitate 

fair and expedient pretrial fact gathering. It follows, therefore, that discovery rules are not 

intended to encourage or reward those whose conduct is inconsistent with that purpose.”). 

I must dissent from that part of Section A holding that Dr. Coonrod could not read 

Dr. Blaylock’s deposition to the jury on cross-examination. Idaho Rule of Civil 

Procedure 32(a)(1) provides under certain circumstances that a deposition can be used 

“by any party for the purpose of contradicting or impeaching the testimony of deponent 

as a witness, or for any other purpose under the Idaho Rules of Evidence” (emphasis 

added). The only Rule of Evidence applicable to this matter would seem to be whether 

the deposition was being used for cross examination that was outside the scope of direct 

examination or was irrelevant. As for the scope of direct, I believe the trial court and this 

Court apply the rule regarding scope of cross-examination too narrowly, or at least do not 

apply it liberally, and thus I would hold that the trial court abused its discretion. The rule 

states that “[c]ross-examination should be limited to the subject matter of the direct 

examination.” I.R.E. 611(b) (emphasis added). Indeed, cross-examination “is limited to 

facts stated in the direct examination or connected therewith,” but “this allows crossexamination not only as to all facts stated by a witness in his original examination, but as 

to other facts connected with them, directly or indirectly tending to explain, modify, or 

qualify the inference resulting from the facts stated by the witness in his direct 

examination.” Towne v. Nw. Mut. Life Ins. Co., 58 Idaho 83, 70 P.2d 364, 367 (1937). 

On direct, Dr. Blaylock testified regarding the standard of care for recognizing 

pulmonary emboli, testified that Dr. Coonrod was negligent for not diagnosing Maria, 

and that he caused her death by failing to do so. Cross-examination of Dr. Blaylock 

would have allowed Dr. Coonrod to show that at least at one time, Dr. Blaylock believed 

the treatment of two doctors other than Dr. Coonrod contributed to the cause of Maria’s 

death by breaching the standard of care. That fact goes directly to the issue of causation 
17

which was a subject matter clearly raised on direct. I fail to see how this crossexamination intended to prove comparative causation among tortfeasors is outside the 

scope of direct examination, and I would hold that the district court abused its discretion 

in determining that it was. 

I concur with Part B of the Majority’s Opinion.