This opinion is subject to revision before final

p ublication in the Pacific Reporter

201 5 UT 48

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

M ICHELLE C OROLES
, Appellant

,

v.

S TATE OF U TAH
, U NIVERSITY H EALTH C ARE
, U NIVERSITY OF U TAH S TATE

H OSPITALS AND C OMMUNITY
, P ARKWAY H EALTH C ENTER
, U NIVERSITY OF U TAH M EDICAL C ENTER , and U NIVERSITY OF U TAH

H EALTH S CIENCES
, Appellees

.

No. 20130217

Filed April 21, 2015

Third District, Salt Lake The Honorable Paul G. Maugh a n
No. 20130217

Attorneys:

Karra J. Porter, Nathan D. A l d er, Sarah E. Spencer, Salt Lake City, for appellant

Rodney R. Parker, Elizabeth L. Willey, Terence L. Rooney, Salt Lake City, for appellees

J USTICE D URHAM authored the opinion of the Court , in which

C HIEF J USTIC E D URRANT
, A SSOCIATE C HIEF J USTICE L EE
, J USTICE P ARRISH , and J UDGE O RME joined

.

J USTICE N EHRING did not participate herein due to his retirement ;
C OURT OF A PPEALS J UDGE G REGORY K. O RME sat.

J USTICE D ENO G. H IMO NAS became a member of the Court on

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

a ccordingly did not participate.C OROLES v

. S TATE

Opinion of the Court

J USTICE D URHAM , 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 pr oceedings 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 esta blish 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

sa nctioned 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 diagno sed 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, M r. Coroles died from pneumonia.

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

several entities she believ ed 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. S ee U TAH C ODE §§ 78B

- 3

- 412,

- 416. After completing the required proceedings before the panel, Mrs. Coroles

2Cite as: 2015 UT 48

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 lett er Mrs. Coroles’s counsel had sent to the medical experts before they were retained. Both letters referenced some opinions allegedly expressed by memb ers of the prelitigation panel.

¶6 Two months after Mrs. Coroles designated her experts and served the repor ts, 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 provis ion 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

exp erts. The y 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 opposit ion 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 o rder

. ¶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 M r s. 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.

3C OROLES v

. S TATE

Opinion of the Court

ANALYSIS

I. E XCLUSION OF THE ORIG INAL EXPERT WITNESSE S

BECAUSE OF THEIR EXP OSURE TO CONFIDENTIA L

INFORMATION ABOUT TH E PRELITIGATION PANE L

PROCEEDINGS

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

until he or she satisfies the prelitigation requirements of the Malpractice Act. U TAH C ODE § 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

pre litigation panel composed of a lawyer, a licen sed healthcare provider, and a lay panelist and obtain a certificate of compliance from the Utah Division of Occupational and Professi onal 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 licen sed 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 stat es 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. B LACK ’ S L AW D ICTIONARY 339 (9th ed. 2009) (defining “confidential”); see also id. (defining “confidentiality” as “the sta te of having the dissemination of certain information restricted”). The

4Cite as: 2015 UT 48

Opinion of the Court

The Malpractice Act, however, provides no guidance on what the consequences of breaching this confidentiality prov ision 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 c ontends 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 ha ve 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 th e 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 rul ing 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 revi ew 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 provis ion 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 cer tain information

. Cf.

U TAH R. E VID . 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.

5C OROLES v

. S TATE

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 fundame ntal legal questi on 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 informatio n 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 pres ented to the jury. The question presented in this appeal, therefore, is whether a district court may achi eve this objective by ordering the per se exclusion of the experts without first determining whether their opinions are in fact based upon the confiden tial 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 prov isions forbidding the use of tho se 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

a ny action for damage s .” 23 U.S.C. § 409 (2015) . The objective of

6Cite as: 2015 UT 48

Opinion of the Court

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

evaluat ions of highway safety hazards, and to prohibit federally required recor d

- 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 exc luded. 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

ina dmissible, 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. C iv .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 concl usions of an expert witness who

reviewe d 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

in admissible highway department materials and concluding “ that the district court did not abuse its discretion by i nstructing appellants’ expert witness, pursuant to 23 U.S.C. § 409, to disregard

7C OROLES v

. S TATE

Opinion of the Court

information compiled or utilized by the [highway depatment ] in

formulati ng 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 Produc ts, 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 cou rt 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 i nformation 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

be nch 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 reve a led in the introductory letter sent by Mrs. Coroles’s attorney or (2) w hether 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 conduct ing an independent assessment of the medical evidence, a reputa ble 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 w ith 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 U TAH R. E VID . 702

. 8Cite as: 2015 UT 48

Opinion of the Court

numerous tools it must employ to prevent unwarranted disclosure of

the confide ntial 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. I ns. Co., 2003 UT 39, ¶ 22, 78 P.3d 603 (internal quotation marks omitted) . If a district court determines that an expert can

expre ss an opinion without relying on the confidential information, the expert should not be stricken. Instead, any reference to th e 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 SUP PLEMENTAL EXPERT WIT NESSES

AS A SANCTION FOR THEIR U NTIMELY 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. U TAH R. C IV

. 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)” o f the Utah Rules of Civil

Procedure. U TAH R. C IV

. 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 di sclosed after the deadline), or “ order [ing] the party or the attorney to pay the reasonable expenses, including attorney fees, caused by the failure .” U TAH R. C IV

. P . 37(e)(2)(B), (E);

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

u nder 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 sa nction 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.

9C OROLES v

. S TATE

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 witnes ses 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 c ourt 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 , 201 1 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, 25 8 P.3d 615 (same); Lippman v. Coldwell Banker Residential Br okerage 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 rul e 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

mat eri al, . . . 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 “shal l” exclude an

4 I n its order excluding the supplemental experts, the district court actually cites rule 37(f), which is t he former location of the

current rule 37(h). See U TAH R. C IV

. 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 int ended to cite the current rule 37(h). We note that on May 1, 2015, rule 37(h) will be deleted.

10Cite as: 2015 UT 48

Opinion of the Court

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 th ere 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 sanc tion a violation of these deadlines. Rule 37(h), on the other hand, governs when a party “ fails to disclose a witness,

document or other mat erial.” Thus, rule 16(d) is applied when evidence is produced late under the scheduling order, while rule 37(h) is a pplied when evidence is not disclosed at all. 5 We therefore repudiate Spafford

, Brussow

, Lippman

, and Po sner 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

, 201 1 UT App 401, ¶ 16 ; Brussow , 2011 UT App 193, ¶¶ 3

– 4; Lippman

, 2010 UT App 89

, at *2; Po sner , 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.

Coro les 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 th is issue may arise again on remand, we also

address whether the district court has discretion to award the

extreme sanction of witness exclu sion on the facts of this case. See State v. James , 819 P.2d 781, 795 (Utah 1991) (“ Issues that are fully

5 F ederal caselaw has similarly concluded that the rule authorizing courts to sanction a party for the untimely designation of an expert witness under the schedu ling 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 J AMES W M

. M OORE ET

AL
., M OORE ’ S F EDERAL P RACTICE § 16.92[6][a] (3d ed. 2014).

11C OROLES v

. S TATE

Opinion of the Court

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.

Moreove r, we observed that the plaintiff moved to substitute

wit nesses before the discovery cut off 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

ad ditional 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 s cheduling 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 w ould be the need for a new scheduling order and a potential de lay 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 th is 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

12Cite as: 2015 UT 48

Opinion of the Court

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 J AMES W M

. M OORE ET AL
., M OORE ’ S F EDERAL P RACTICE § 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 q uotation 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 o pinions 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. B ut if the district court excludes the original experts, w e 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 o rder, 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 b efore serving a late designation. In that hypothetical scenario, a court could choose to sanction a party for violating that requirement.

13C OROLES v

. S TATE

Opinion of the Court

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

determines a sanction i s appropriate under rule 16(d).

14