Paget v. Department of Transportation

ORME, Judge (dissenting): ¶ 5 I disagree with my colleagues’ determination to meddle in what should be the business of the trial court on remand. I do acknowledge that there is a certain logic to their underlying position and that it makes sense to affirm a grant of summary judgment in most cases when a plaintiff needs an expert to establish a prima facie ease and the plaintiff does not have such an expert. But this case is on a different footing than such eases generally. ¶ 6 The theory of UDOT’s summary judgment motion was not that the Pagets lacked a viable expert to opine as to UDOT’s standard of care and thus could not prevail as a matter of law. UDOT’s sole theory4 in bringing its motion for summary judgment was that AASHTO, as explained by its expert, established UDOT’s duty of care and that UDOT met its duty in opting not to install a median barrier at the crash site. The Pagets, like UDOT, had lined up an expert, and he countered the views expressed by UDOT’s expert. In considering the motion for summary judgment, the trial court concluded that the AASHTO standard governed and had been met by UDOT, and that there was nothing left for trial because the Pagets’ expert’s testimony was legally flawed and thus UDOT’s theory stood unrefuted. In other words, the trial court’s critique of the Pagets’ expert’s testimony was in the context of evaluating whether a dispute war 1183 ranting trial had been shown by the Pagets, and the court concluded it had not.5 ¶ 7 What makes this case somewhat unique is that, while affirming the trial court’s rejection of the testimony from the Pagets’ expert, we also ruled that it should have rejected that of UDOT’s expert centered on the flawed AASHTO “standard.” As that was the sole basis for the trial court’s grant of summary judgment to UDOT, it followed— and still follows — that the judgment as entered by the trial court cannot stand. ¶ 8 Could UDOT bring a second motion for summary judgment, contending that the Pa-gets could not establish a prima facie ease in the absence of an expert witness and that the time for designating experts has run? Of course. And that was the thrust of UDOT’s petition for rehearing — that we should affirm the summary judgment on the alternative ground that the Pagets were destined to lose without an expert even though we concluded that UDOT was not entitled to summary judgment on the ground that it advanced and that the trial court accepted. As UDOT put it in its petition for rehearing, “[Rjemand to the district court will be a needless waste of the partie[s’] time and money and judicial resources because the Pagets will be unable to withstand either a second motion for summary [judgment] or a motion for directed verdict at trial.” UDOT may well be right about that, but I see no compelling need to cut short the normal flow of events on the basis of UDOT’s self-serving concern over judicial economy. ¶ 9 The flaw in the thinking of UDOT and my colleagues is that the deadline for designation of experts in this case is not a product of natural law, constitutional requirement, statutory mandate, the Utah Rules of Civil Procedure, or even a local rule. The deadline was simply a provision contained in the trial court’s scheduling order. And as such, it is entirely within the purview of the trial court to adjust or revise it as the trial court may deem appropriate. On remand, would the Pagets ask the trial court to give them a second chance to find an expert? I don’t know. If they did ask, would the trial court accommodate them? I don’t know. But I do know that it is appropriate for that to play out, as it will, in the trial court, rather than to be micromanaged by this court. ¶ 10 The focus of the debate between UDOT and the Pagets on summary judgment was whether the AASHTO standard, as interpreted by UDOT’s expert, meant that UDOT was free to install a median barrier at the accident site or not to install one, as a matter — essentially—of whim. The trial court did not buy the Pagets’ expert’s attack on that theory because his approach was flawed. We affirmed that determination. But we reversed the trial court’s conclusion that AASHTO set the applicable standard, concluding that the “standard” was circular nonsense. And on that basis we vacated the summary judgment in favor of UDOT and remanded the case to the trial court so that it could decide what should happen next. Trial courts are very adept at managing the cases pending before them and I see no need for this court to wrest control of this ease from the trial court. ¶ 11 If I were the trial judge and the ease were sent back to me in the posture envisioned in our initial opinion, maybe I would decline to give the Pagets a new opportunity to engage an expert. That done, I might then grant a renewed motion for summary 1184 judgment by UDOT, this time premised on the Pagets’ need for an expert and their lack of one. But I might well be amenable to the suggestion that the sea change in the posture of the case, prompted by unanticipated appellate intervention, necessitates taking a step back and giving both sides a chance to regroup, including giving both sides a chance to engage new experts who would focus on the actual gravamen of UDOT’s alleged negligence — was UDOT negligent for not installing a median barrier at the crash site before it did? — rather than on the sideshow that was the flawed AASHTO “standard.” Or I might conclude that the Pagets were not to blame for the fact that their expert’s methodology and opinions were flawed and that, in the interest of justice, they should have ninety days, say, to line up a new one. ¶ 12 We ruled correctly in the first instance in this case. We set aside the summary judgment in favor of UDOT because UDOT was not entitled to judgment as a matter of law on the theory it advanced. That done, perhaps there was no need to also opine about the merit of disallowing the Pa-gets’ expert witness. Having reversed the summary judgment for lack of merit on its own terms, we could simply have remanded without considering the bona tides of the Pagets’ expert. But the Pagets had contended that the trial court erred in disallowing his testimony, and the question was fully briefed. It seemed appropriate to resolve it. Still, our decision in UDOT’s favor on that issue should not trump its failure to establish its entitlement to judgment as a matter of law on the ground it advanced in the trial court. And our answering the two questions presented to us in the manner we did should not deprive the tidal court of its opportunity to consider where those two answers leave the parties as they proceed to final resolution of the matter. Footnotes [4] My colleagues assert in footnote 3 that I have this wrong, that UDOT also contended that the Pagets’ claim would fail as a matter of law if their expert were disqualified. Here is the only substantive paragraph in UDOT’s motion for summary judgment in its entirety, and the emphasis of the singular is mine: The reason for this motion is as follows: This case involves a motor vehicle accident in which a vehicle crossed a median and collided with plaintiffs’ oncoming car. Because a median barrier may have prevented the accident, the issue for the trier of fact is whether the lack of a median barrier fell below the highway engineering standards of care. The State of Utah has adopted a standard,, promulgated by the American Association of State Highway and Transportation Officials (AASHTO), which did not require median barriers for medians greater than 30 feet wide. Here, the median was over 40 feet wide, and so no barrier was required. Thus, UDOT did not breach any applicable standard and cannot be held liable as a matter of law. [5] My colleagues, in footnote 3, also contend the trial court premised its grant of summary judgement to UDOT on the alternative ground that "the claim fails as a matter of law” if Pagets have no expert. This is a real stretch. The lynchpin of the trial court’s analysis, as set forth in its memorandum decision, is that "UDOT met the AASHTO standard adopted by the State of Utah” and, again, that "UDOT complied with the adopted governing standard pertaining to median barriers in the State of Utah.” The thrust of its rejection of the Pagets’ expert’s testimony was that the expert "cannot contravene published standards based upon his unsupported opinion alone.” It was in the context of having just concluded that AASHTO set the standard governing UDOT’s duty, and having concluded that the Pagets’ expert did not succeed in undercutting it, that the trial court determined that "there is no evidence that UDOT’s design of 1-80 fell below a recognized standard of care." It is clear to me that the trial court’s erroneous acceptance of AASHTO as setting forth a meaningful standard drove its decision, and we unanimously rejected that conclusion in our initial opinion. Of course, to the extent that the trial court’s memorandum decision is amenable to differing interpretations, it is only another reason why it makes sense to let the trial court revisit the matter.