2024 UT App 18

THE UTAH COURT OF APPEALS

ALEJANDRA DE LA CRUZ,

Appellant,

v.

ANGELA EKSTROM,

Appellee.

Opinion

No. 20220702-CA

Filed February 15, 2024

Third District Court, Salt Lake Department

The Honorable Amber M. Mettler

No. 200906776

Eric B. Vogeler, Jeffrey J. Steele, Chase A. Adams, 

Justin M. Hosman, and Alyssa J. Wood, Attorneys

for Appellant

Byron G. Martin and Steven M. Edmonds,

Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGE RYAN D. TENNEY concurred. JUDGE RYAN M.

HARRIS concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1 In early 2019, Angela Ekstrom was involved in a car 

accident when she collided with Alejandra De La Cruz, who was 

injured in the accident. Twenty months later, De La Cruz filed suit 

against Ekstrom seeking damages related to the accident. In her

initial damages claim, De La Cruz sought a total of approximately

$11,000, an amount that would cover the costs of her past medical 

treatment. A week before the close of fact discovery, however, De 

La Cruz served supplemental disclosures, seeking—for the first 

time—more than $70,000 in damages for “future special 

damages.” In response, Ekstrom asked the district court to 
De La Cruz v. Ekstrom

20220702-CA 2 2024 UT App 18

exclude De La Cruz’s supplemental disclosures. The court 

granted the motion, and found the disclosures untimely, harmful, 

and undertaken without good cause. De La Cruz now appeals, 

asserting that the court’s exclusion of the evidence of her claim for 

future special damages was an abuse of discretion. For the reasons 

discussed, we reject De La Cruz’s arguments and affirm the 

court’s ruling.

BACKGROUND

¶2 In February 2019, De La Cruz and Ekstrom were involved 

in a car accident. Several days later, De La Cruz sought treatment 

from a chiropractor for her injuries sustained in the accident, but 

she did not otherwise seek emergency medical care.

¶3 In October 2020, De La Cruz filed suit against Ekstrom, 

seeking recovery of damages to compensate her for her injuries.

In her complaint, De La Cruz requested, among other things, 

“past, present, and future special damages including medical 

expenses, consequential damages, lost wages and future care, if 

applicable.” De La Cruz served her initial disclosures in late 

December 2020, indicating that her entire special damages claim 

consisted of approximately $11,000 for the costs of medical 

treatment she had already incurred. During discovery, Ekstrom 

asked De La Cruz to identify and describe “every category and 

amount of damages [she was] claiming,” together with a 

computation of damages. De La Cruz’s response to this request 

was to refer Ekstrom “to her initial disclosures and complaint 

filed in this matter.”

¶4 In May 2021, Ekstrom deposed De La Cruz. During the 

deposition, De La Cruz testified to continued mild shoulder pain. 

Later that same month, Ekstrom asked the court to order that De 

La Cruz submit to a medical examination pursuant to rule 35 of 

the Utah Rules of Civil Procedure, which De La Cruz opposed

because at least some of the injuries she had sustained in the 
De La Cruz v. Ekstrom

20220702-CA 3 2024 UT App 18

accident had resolved. Specifically, in her opposition to the rule 

35 motion, De La Cruz claimed that “[i]t is unclear what a physical 

examination of a body part that no longer experiences symptoms 

related to the collision will do to aid [Ekstrom] in her 

investigation.” After hearing arguments on the motion, the 

district court ordered De La Cruz to submit to the examination. 

After numerous delays, that examination took place in December 

2021, conducted by Ekstrom’s retained medical expert. Sometime 

before January 2022, De La Cruz had hired her own medical 

expert. That expert later evaluated De La Cruz and provided a 

report to her at the end of January.

¶5 In early February 2022, Ekstrom produced her rule 35 

examination report. Several days later, De La Cruz served 

Ekstrom with a supplemental disclosure indicating—for the first 

time—that she was seeking “future special damages” for the 

“future costs of treatment to be incurred” in connection with 

shoulder surgery, estimated to be $73,500. This disclosure did not 

identify any documents or witnesses that would support the 

claim and stated that “the disclosure is based upon estimations 

and will be further detailed through expert discovery.” Then, on 

February 22, 2022, the last day of fact discovery, De La Cruz 

requested a thirty-day discovery extension so that her expert 

could review the rule 35 report and Ekstrom’s deposition 

transcript. The district court granted the extension request.

¶6 Two days before the end of the extended discovery period, 

De La Cruz filed a second supplemental disclosure claiming 

future special damages of $57,591. In support of her updated 

future special damages disclosure, De La Cruz filed an expert 

disclosure identifying both her medical expert and a life care 

planner as retained experts and provided their expert reports. 

Ekstrom filed a motion to exclude De La Cruz’s future medical 

expense evidence, asserting that De La Cruz had failed to comply 

with her pretrial disclosure obligations. In response, De La Cruz 

argued that (1) her supplemental disclosures were timely and 

sufficient; (2) if the disclosures were untimely, any late disclosure 
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20220702-CA 4 2024 UT App 18

was harmless; and (3) she had good cause for any untimely 

disclosure.

¶7 After full briefing and oral argument, the district court 

ruled in favor of Ekstrom and found De La Cruz’s supplemental 

disclosures to be untimely. The court noted that this case 

exemplifies

precisely why the Rules require early disclosure of 

damages—a party necessarily litigates a case 

involving roughly $11,000 in past medical expenses 

plus pain and suffering materially differently than a 

case worth nearly $70,000 in special damages (plus 

pain and suffering), and reasonably so. . . . [A] party 

should not have to litigate a case twice.

¶8 In its ruling, the court also examined whether De La Cruz’s 

untimely disclosures were harmless. The court determined that 

Ekstrom was harmed by De La Cruz’s failure to identify any 

future medical expenses early because Ekstrom “created and 

executed on a discovery and litigation plan that included taking 

written and deposition discovery proportional to the amount at 

issue and retaining an expert who is board certified in physical 

medicine and rehabilitation, not an orthopedic surgeon.” The 

court further concluded that De La Cruz had not shown good 

cause for the untimely disclosures, because it was her own delay 

in investigating her damages before filing her complaint that 

caused the problem:

If a party intends to seek to recover damages that 

will require expert testimony, a party is required to 

do the investigation necessary in order to satisfy the 

requirement of rule 26 [of the Utah Rules of Civil 

Procedure], and such investigation might very well 

necessitate consulting with an expert early in the 

case.
De La Cruz v. Ekstrom

20220702-CA 5 2024 UT App 18

The court therefore excluded De La Cruz’s future damagesrelated evidence. De La Cruz appeals.

ISSUE AND STANDARD OF REVIEW

¶9 The issue in this case is whether the district court exceeded 

its discretion in excluding the evidence contained in De La Cruz’s

supplemental damage disclosures based on its determinations 

that those disclosures were not timely, that the late disclosure was 

not harmless, and that De La Cruz had not shown good cause for 

the delay.

¶10 “As a general rule, we grant district courts a great deal of 

deference in matters of discovery and review discovery orders for 

abuse of discretion.” Dahl v. Dahl, 2015 UT 79, ¶ 63, 459 P.3d 276.

In particular, we review for abuse of discretion district court 

rulings regarding timeliness, harmlessness, and good cause. See

Sleepy Holdings LLC v. Mountain West Title, 2016 UT App 62, ¶ 24, 

370 P.3d 963; see also Supernova Media, Inc. v. Pia Anderson Dorius 

Reynard & Moss, LLC, 2013 UT 7, ¶ 15, 297 P.3d 599 (reviewing a 

district court’s timeliness determination for abuse of discretion). 

¶11 Ultimately, as long as the court’s decision “was within the 

broad range of discretion entrusted to” trial judges, even if “we 

think the trial judge made the wrong call” we will affirm because 

“it was, in its essence, a discretionary call.” Gunn Hill Dairy Props., 

LLC v. Los Angeles Dep’t of Water & Power, 2015 UT App 261, ¶ 24, 

361 P.3d 703 (Orme, J., concurring), cert. denied, 369 P.3d 451 (Utah 

2016). It matters not whether “one or more members of this panel 

might have handled the matter differently,” see Hansen v. Kurry 

Jensen Props. LLC, 2021 UT App 54, ¶ 25, 493 P.3d 1131, but only 

whether the decision was “an abuse of discretion,” and thus “we 

will reverse only if there is no reasonable basis for the district 

court’s decision,” see Berger v. Ogden Reg’l Med. Center, 2020 UT 

App 85, ¶ 15, 469 P.3d 1127 (quotation simplified), cert. denied, 474 

P.3d 944 (Utah 2020).
De La Cruz v. Ekstrom

20220702-CA 6 2024 UT App 18

ANALYSIS

¶12 The Utah Rules of Civil Procedure sets forth clearly defined 

directions for the discovery process. Rule 26(a)(1)(C) requires the 

plaintiff to serve on the other party, “without waiting for a 

discovery request, . . . a computation of any damages claimed and 

a copy of all discoverable documents or evidentiary material on 

which such computation is based.” And rule 26(d)(3) further 

elaborates that a “party is not excused from making disclosures 

or responses because the party has not completed investigating 

the case.”

¶13 Importantly, “[i]f a party fails to disclose or to supplement 

timely a disclosure or response to discovery, that 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.” Utah. R. Civ. P. 26(d)(4). See also Bodell 

Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933. We discuss

in turn the district court’s determinations that De La Cruz’s 

supplemental disclosures were untimely, that the late disclosure 

harmed Ekstrom, and that De La Cruz had no good cause for the 

belated disclosures.

I. Timeliness

¶14 Depending on the circumstances, a disclosure produced a 

few days before the close of fact discovery may still not be 

considered timely. That is, a district court retains broad discretion 

to determine whether a party has not had sufficient time to 

complete the investigation of its case or whether filing its future 

damage calculations near the end of the fact discovery period was 

strategically motivated. See generally Advisory Committee 2011 

Amendments to Utah R. Civ. P. 26. “If factual contentions about 

the amount of damages require further investigation or discovery, 

the party must undertake that investigation as early in the 

litigation process as is practicable.” Sleepy Holdings LLC v. 
De La Cruz v. Ekstrom

20220702-CA 7 2024 UT App 18

Mountain West Title, 2016 UT App 62, ¶ 14, 370 P.3d 963 (quotation 

simplified).

¶15 “Timeliness is determined under the facts and 

circumstances of each particular case, and in the sound discretion 

of the court.” Burr v. Koosharem Irrigation Co., 2017 UT App 123, 

¶ 11, 402 P.3d 124 (quotation simplified), cert. denied, 406 P.3d 251 

(Utah 2017). And in other circumstances it is assessed by using a 

number of factors, including “the length of time since the 

applicant knew of [her] interest in the case, prejudice to the 

existing parties, prejudice to the applicant, and the existence of 

any unusual circumstances.” Kane County v. United States, 928 F.3d 

877, 890–91 (10th Cir. 2019) (quotation simplified). Notably, 

“delay in itself“ does not render a request or disclosure untimely. 

Id. (quotation simplified). In general, a request of disclosure will 

be considered timely if the litigant “acted diligently once the basis 

for relief became available,” and can show that any delay in 

seeking relief did not cause undue hardship to the opposing 

party.” Menzies v. Galetka, 2006 UT 81, ¶ 65, 150 P.3d 480

(quotation simplified).0F

1

¶16 Here, it is undisputed that De La Cruz did not disclose the 

fact of her future medical damages and the amount or method of 

calculating those damages until right before the close of fact 

discovery. But De La Cruz knew that her shoulder was still 

hurting in May 2021 at the time of her deposition, yet she opposed 

Ekstrom’s request for a medical examination around that same 

time. De La Cruz also retained and was evaluated by her own 

1. We acknowledge the cases we cite here address timeliness in 

contexts other than discovery disclosures. Compare Utah R. Civ. 

P. 24 (intervention), and id. R. 60 (relief from judgment or order),

with id. R. 26 (general provisions governing disclosure and 

discovery). But we find the timeliness determinations in those 

other contexts analogous and the analysis persuasive.
De La Cruz v. Ekstrom

20220702-CA 8 2024 UT App 18

medical expert by the end of January 2022, yet none of that 

information was disclosed until months later.

¶17 The district court opined that “[w]hile it [was] true that [De 

La Cruz’s] supplemental disclosures were made a few days prior 

to the end of fact discovery, the Court [was] not persuaded that 

this renders the disclosure timely.” In fact, the court noted that

“[p]rior to the first supplemental disclosure in February 2022, [De 

La Cruz] never indicated that she was seeking damages for future 

medical expenses.” Yet just “days before the end of fact discovery 

and then . . . days before the end of the 30-day extension,” De La 

Cruz disclosed that she was seeking an additional “$57,591 in 

future medical expenses.” The court determined that De La Cruz’s

“belated disclosure” of the computation of previously unsought 

future special damages was untimely because Ekstrom had

already “retained an expert,“ conducted depositions, “and 

completed all other discovery . . . deemed necessary based on the 

damages previously claimed” by De La Cruz.

¶18 Under the circumstances, we do not perceive an abuse of 

discretion in the district court’s determination that De La Cruz’s 

disclosures were untimely. Here, the district court exercised its 

broad discretion to assess her disclosures of future special 

damages as untimely against the backdrop of the “[t]ime, place 

and manner requirements relating to discovery” in the case. See 

Bennion v. Utah State Board of Oil, Gas & Mining, 675 P.2d 1135, 

1144 (Utah 1983). As such, we will not disturb the district court’s 

ruling that De La Cruz’s supplemental disclosures were untimely.

II. Harmlessness

¶19 The district court found that De La Cruz’s untimely 

disclosures harmed Ekstrom. This is based on the fact that, by the 

time De La Cruz disclosed her need for future medical care, 

Ekstrom had already “created and executed on a discovery and 

litigation plan that included taking written and deposition 

discovery proportional to the amount at issue”—which was at 
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20220702-CA 9 2024 UT App 18

that point approximately $11,000—“and retaining an expert who 

is board certified in physical medicine and rehabilitation, not an 

orthopedic surgeon.” Likewise, Ekstrom “did not question” De La 

Cruz during her deposition “on any planned future medical 

expenses since none were disclosed,” and she “did not subpoena 

other witnesses who might be able to offer personal observations

on [De La Cruz’s] physical condition,” such as “supervisor(s) at 

her work.” The district court determined that “without a specific 

damages claim relating to [future damages], it would be 

unreasonable to expect [Ekstrom] to retain an orthopedic surgeon, 

ask [De La Cruz] questions about this unasserted claim, or 

attempt to depose other witnesses on this topic.” Moreover, 

“without an orthopedic surgeon expert, [Ekstrom would] be 

hampered in her ability to” “refute [De La Cruz’s] specific 

damages claim.” We perceive no abuse of discretion in this 

determination.

¶20 When contemplating the question of harmlessness, district 

courts should consider “whether the defense was able to 

adequately (1) question witnesses, (2) determine the case’s tier 

status under the applicable rules of civil procedure, 

(3) understand the nature and quantity of the plaintiff’s claimed 

damages, and (4) understand the scope and cost of the litigation 

pursued.” Chard v. Chard, 2019 UT App 209, ¶ 45, 456 P.3d 776. 

For nearly the entirety of the fact discovery period, Ekstrom 

understood De La Cruz’s damages claim to be around $11,000 and

made decisions about how much discovery to conduct and what 

questions to ask based on that information. De La Cruz’s belated 

damages disclosures increased her claimed damages sixfold. 

Importantly to the district court, Ekstrom did not have an 

opportunity during the fact discovery period to conduct 

discovery on De La Cruz’s new damages claims, and in order to 

do so, Ekstrom would have had to “litigate [the] case twice,” as—

in the court’s language—“a party necessarily litigates a case 

involving roughly $11,000 in past medical expenses plus pain and 
De La Cruz v. Ekstrom

20220702-CA 10 2024 UT App 18

suffering materially differently than a case worth nearly $70,000 

in special damages (plus pain and suffering).”

¶21 As the district court provided adequate rationale for the

determination that De La Cruz’s belated disclosures were 

harmful, we see no abuse of discretion in the district court’s 

decision.

III. Good Cause

¶22 The district court disagreed with De La Cruz’s assertion 

that there was good cause for her belated disclosures as she “did 

not know for certain about [her own] injuries until receiving the 

information found within her expert’s reports.” But even if this 

were the case, the court concluded that “such investigation might 

very well necessitate consulting with an expert early in the case.” 

This is unlike what De La Cruz did when she “delay[ed] in 

seeking input on or investigation of any such [future damages] 

claim.” See, e.g., Stichting Mayflower Mountain Fonds v. United Park 

City Mines Co., 2017 UT 42, ¶¶ 16, 49, 424 P.3d 72 (explaining that 

where a party had “waited so long to add [additional] claims and 

lacked a good explanation for the delay,” these “new claims . . . 

were barred by” the trial court, and that our review of such a 

decision is “deferential”); Gunn Hill Dairy Props., LLC v. Los 

Angeles Dep’t of Water & Power, 2015 UT App 261, ¶¶ 21, 24, 361 

P.3d 703 (Orme, J., concurring) (emphasizing that “standards of 

review really do matter” and even where “we think the trial judge 

made the wrong call,” it remains “a discretionary call” and so long 

as it is “within the broad range of discretion entrusted to [the 

judge],” we must affirm), cert. denied, 369 P.3d 451 (Utah 2016).

¶23 De La Cruz failed to persuade the district court that she 

had good cause to delay the disclosure that she was seeking 

special damages to cover her future medical expenses. And 

though some members of this panel may have made a different 

call, we find that the district court acted within its discretion when 

it determined that De La Cruz did not show good cause for the 
De La Cruz v. Ekstrom

20220702-CA 11 2024 UT App 18

belated supplemental disclosures. Accordingly, we affirm the 

district court’s good-cause ruling.

CONCLUSION

¶24 The district court did not abuse its broad discretion when 

it determined that De La Cruz’s supplemental disclosures were 

not timely, that her delayed disclosures were not harmless, and 

that she did not show good cause for the delayed disclosures. As 

such, we affirm the court’s exclusion of De La Cruz’s future 

special damages evidence as a proper sanction under rule 26(d)(4)

of the Utah Rules of Civil Procedure.

HARRIS, Judge (concurring):

¶25 As the lead opinion explains, district courts enjoy wide 

discretion in determining whether, under the circumstances 

presented in the case at hand, a party’s disclosures are timely 

and—if deemed untimely—whether their tardiness is harmless or 

excused by good cause. I agree with my colleagues that the district 

court’s determinations here were not outside the scope of its wide 

discretion. 

¶26 But in my view, the court’s rulings were harsh, and lie 

somewhere near the outer boundary of a district court’s discretion 

in such matters. All three of the court’s rulings—the ones 

regarding timeliness, harmlessness, and good cause—could easily 

have gone the other way. I write separately to encourage district 

courts to exercise their discretion, in close cases, in ways kinder 

and gentler than exercised here, and in ways aimed at resolution 

of matters on their merits. 
De La Cruz v. Ekstrom

20220702-CA 12 2024 UT App 18

I

¶27 Utah appellate courts have recently issued a number of 

decisions interpreting the discovery disclosure provisions of the 

Utah Rules of Civil Procedure. See, e.g., Keystone Ins. Agency, LLC 

v. Inside Ins., LLC, 2019 UT 20, 445 P.3d 434; Butler v. Mediaport Ent.

Inc., 2022 UT App 37, 508 P.3d 619; Segota v. Young 180 Co., 2020 

UT App 105, 470 P.3d 479. In many of these cases—including our 

decision in this case—we have upheld district court orders that 

have sanctioned parties for nondisclosure or untimely disclosure, 

and sometimes these sanctions have been severe. See Butler, 2022 

UT App 37, ¶ 57 (upholding a district court’s order dismissing a 

party’s damages claims due to inadequate damages disclosures). 

And we have often emphasized the applicable rule’s strong 

language that, if a party fails to make a required disclosure, “that 

party may not use the undisclosed witness” or evidence at trial 

“unless the failure is harmless or the party shows good cause for 

the failure.” See Utah R. Civ. P. 26(d)(4). 

¶28 In the wake of these recent rulings, there has been some 

measure of grumbling, amongst lawyers and trial judges, that the 

disclosure rules have become a nest of traps for the unwary 

litigant; that defendants file motions alleging inadequate or 

untimely disclosures in nearly every case; and that too many cases 

are now being resolved by resort to non-merits discovery rulings 

rather than by resort to the legal principles governing the 

substantive causes of action at issue. 

¶29 While there may be a kernel of truth to these complaints, I 

instead urge bench and bar to view these recent cases—which 

have, by and large, involved affirmances of district court rulings—

simply as sustaining district court discretion in such matters, and 

not as an indication of any appellate-level preference for 

harshness. In the cases I have authored, I have endeavored to 

emphasize the discretionary standard of review governing 

discovery cases, noting in particular “that assessment of harm in 

this context is a nuanced matter, and that it is sometimes difficult 
De La Cruz v. Ekstrom

20220702-CA 13 2024 UT App 18

to tell if a defendant has really been harmed” by a late or 

inadequate disclosure or is, instead, “just feigning harm for the 

purposes of trying to get the plaintiff’s damages claims dismissed 

on non-merits grounds prior to trial.” See Butler, 2022 UT App 37, 

¶ 48. District courts will “almost always have a better vantage 

point than we do to make such a call,” and for this reason “we 

review a district court’s harmlessness determination for abuse of 

discretion.” Id. And in conducting review for abuse of discretion, 

the question is not whether we would have done the same thing 

had we been in the district court’s shoes; rather, the question is 

whether the district court’s chosen remedy constituted an abuse 

of its wide discretion in such matters. See id. (noting that the 

court’s decision, “while perhaps not the only possible permissible 

decision under the circumstances, was not outside the bounds of 

the court’s discretion”); see also Segota, 2020 UT App 105, ¶ 22 

(affirming the court’s order, even while acknowledging that 

“another judge might have determined that the defendants’ harm 

could have been remedied in a different way”). 

¶30 Because of the lenient standard of review, district courts 

possess great power in making decisions regarding discovery, 

disclosures, and sanctions; those decisions are statistically quite 

likely to be affirmed on appeal. With great power, however, 

comes great responsibility. Our decisions giving voice to district 

court discretion will make sense, in the long run, only if district 

courts elect to exercise that discretion in ways commensurate with 

both justice and mercy. 

¶31 Specifically, I encourage district courts, in close cases, to 

exercise their discretion in favor of hearing cases on their merits. 

In so doing, district courts should, in my view, explore creative 

solutions that appropriately penalize non-disclosing parties while 

still allowing claims to proceed to adjudication on their merits. See

Segota, 2020 UT App 105, ¶ 22 (suggesting that the harm sustained 

by the defendant as a result of the plaintiff’s nondisclosure “could 

have been remedied” in a way short of dismissal, such as 

“through an assessment of attorney fees and costs” against the 
De La Cruz v. Ekstrom

20220702-CA 14 2024 UT App 18

non-disclosing party “imposed in connection with an extension 

of” relevant deadlines). 

¶32 In this same vein, I encourage attorneys to assist district 

courts in facilitating the judicious exercise of this discretion. In 

particular, attorneys should not neglect to make “harmlessness” 

or “good cause” arguments when appropriate, and in that context

attorneys—especially the ones who made the substandard 

disclosures—should propose creative solutions that might serve 

to ameliorate the harm caused by the infirm disclosures while still 

allowing the relevant issues to move forward on their merits. 

II

¶33 In this case, I agree with the lead opinion’s conclusion that 

the district court’s rulings were within the broad discretion 

afforded it in this context. But in my view, the court would have 

been well within its discretion had it come out a different way in

its rulings regarding timeliness/good cause and harmlessness. 

¶34 With regard to timeliness and good cause, it bears noting 

that De La Cruz’s disclosure occurred before the end of the fact 

discovery period. Depending on the situation, it may not 

necessarily be dilatory for a party to disclose a new issue just a 

few days before the end of fact discovery. Sometimes, of course, 

waiting until the eve of the discovery cutoff to make a disclosure 

will result in a determination that the disclosure was untimely. 

See, e.g., Keystone, 2019 UT 20, ¶ 19 (deeming a disclosure untimely

that was made in “the twilight hours of fact discovery” (quotation 

simplified)). But other times, a litigant may discover new facts, for 

the first time, near the end of the fact discovery period that form 

the basis for a new claim or the expansion of an existing claim; in 

that situation, a party’s attempt to inject new material into the case 

late in the fact discovery period may not be untimely. See, e.g., 

Evans v. B&E Pace Inv. LLC, 2018 UT App 37, ¶¶ 22–24, 424 P.3d 

963, cert. denied, 425 P.3d 803 (Utah 2018). 
De La Cruz v. Ekstrom

20220702-CA 15 2024 UT App 18

¶35 The timeliness/good cause question, in this case, came 

down to whether De La Cruz should have been more aware, at an 

earlier point in the process, of the possibility that she might need 

shoulder surgery. In situations like this, it is important to 

remember that personal injury cases are often dynamic and 

usually involve human beings in various stages of healing. A 

different district judge may have seen the matter differently and 

concluded that De La Cruz did not know until relatively late in 

the case, and should not reasonably have discovered any sooner, 

that she needed future shoulder surgery, a conclusion that in my 

view would have been within the court’s discretion on these facts. 

¶36 With regard to harmlessness, the court was concerned that 

allowing De La Cruz to inject the shoulder surgery issue into the 

case at a late stage would have required Ekstrom to “litigate [the] 

case twice.” See supra ¶¶ 7, 20. I certainly acknowledge the validity 

of this concern; tardy disclosure does often necessitate repetition 

of various litigation activities, and such repetition adds to the cost 

of the litigation and can, in many cases, constitute real harm. 

¶37 But in this case, much of the work that would have been 

necessitated by introduction of the shoulder issue into the case 

would not have been redundant. For instance, in its ruling the 

court noted that Ekstrom—from the beginning and due to the 

small amount of damages apparently at issue—made the decision 

not to “subpoena other witnesses who might be able to offer 

personal observations” about De La Cruz’s physical condition, 

including De La Cruz’s work colleagues, and implied that 

Ekstrom would be harmed by incurring the costs of that discovery 

after De La Cruz’s belated disclosure. But Ekstrom would have 

had to do that work even if De La Cruz had disclosed a potential 

shoulder issue from the very beginning; discovery that does not 

have to be repeated ordinarily should not count in any tally of 

repetitive costs. In assessing harm, district courts must take care 

to base their decisions only on matters that were actually 

harmful—here, matters that really would have been redundant. 
De La Cruz v. Ekstrom

20220702-CA 16 2024 UT App 18

¶38 In this case, some matters would have had to have been 

repeated. Certainly, Ekstrom’s expert would have needed to do a 

second rule 35 examination, and Ekstrom would have needed to 

re-depose De La Cruz. But Ekstrom doesn’t identify any other

redundant activities, and I wonder whether these two 

redundancies, standing alone, are enough to render the late 

disclosure truly harmful. These two activities could have been 

accomplished relatively quickly and would have necessitated 

only a short and targeted extension of the fact discovery deadline; 

such extensions are usually not, standing alone, prejudicial. And 

the court could easily have required De La Cruz, as a sanction for 

her less-than-timely disclosure, to shoulder the costs of these two 

activities. Such a resolution would have both (a) alleviated all 

harm that is apparent to me on these facts, as well as (b) allowed 

adjudication of De La Cruz’s new claim on its merits. In my view, 

such a resolution would not only have been well within the 

court’s discretion, but it would have been an ideal way to resolve 

the situation. Before closing the courthouse door entirely to a 

party’s claim, courts should explore the possibility of imposing 

this sort of creative solution to any “harmfulness” problem 

created by a late or inadequate disclosure. 

¶39 In sum, I concur in the resolution reached by the lead 

opinion, but I do so largely on the strength of the generous 

standard of review applicable here: district courts have wide 

discretion in these matters, and I agree with the lead opinion that 

the court’s ruling here was within—although perhaps near the 

edges of—the boundaries of that discretion. But I urge district 

courts to exercise that discretion, in close cases, in aid of deciding 

cases on their merits, and I caution them to impose punitive 

rulings closing the courthouse door to litigants only when such 

rulings are truly deserved and only after exploring other less 

draconian ways, short of dismissal, of punishing the nondisclosing party.