Smith v. Creech

2025 UT App 195

THE UTAH COURT OF APPEALS

GERALD A. SMITH,
Appellee,
v.
FRANCISCO JOSE CREECH AND WALTER CREECH,
Appellants.

Opinion
No. 20240793-CA
Filed December 26, 2025

First District Court, Logan Department
The Honorable Spencer D. Walsh
No. 210100100

Joseph J. Joyce, Bryan J. Stoddard, Michael J. Collins,
Jonathan P. Barnes Jr., Andrew D. Wright, and
Cassidy Ellis, Attorneys for Appellants
Brandon J. Baxter and Loren K. Peck,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.

MORTENSEN, Judge:

¶1 Francisco Jose Creech was driving without a license when
he crashed into a school bus that was stopped and unloading
students. The bus’s driver, Gerald Smith, sustained an injury to
his neck. He sued Francisco and Walter Creech, Francisco’s father,
for negligence. 1 At the conclusion of a four-day trial, a jury

1. Because Francisco and Walter share the same last name, we
refer to them individually by their first names for clarity and with
no disrespect intended by the apparent informality, and we refer
(continued…)
Smith v. Creech

returned a verdict for Smith, awarding him nearly $670,000 in
damages.

¶2 On appeal, the Creeches argue that the district court
(1) erred in denying their motion for a directed verdict related to
some of Smith’s medical expenses and (2) abused its discretion
when it excluded various evidence. Because Smith failed to
establish the reasonableness of the medical expenses he incurred
after March 2020, we agree that the court should have directed a
verdict on this issue in favor of the Creeches. We also agree that
the court abused its discretion when it barred the Creeches from
offering any evidence of Smith’s other medical issues that they
could not connect to the asserted damages with expert testimony.
While we discern no error in the court’s other challenged rulings,
we nonetheless reverse and remand this case for the court to
(1) grant the motion for a directed verdict and (2) hold a new trial
on general damages.

BACKGROUND

The Crash

¶3 Although Francisco had a learner’s permit at one point, he
had not obtained a driver license when Walter bought a Chevrolet
Tracker for Francisco’s and the rest of the family’s use. One day
in March 2018, Francisco was driving the Tracker 55 miles per
hour and adjusting the radio when he struck a school bus that was
stopped to unload students. Smith, the bus’s driver, sustained a

to them together as the Creeches. In the proceedings below, the
Creeches were represented by separate counsel. However, they
have jointly appealed this case. For this reason, and because doing
so does not affect our analysis, we refer to actions taken by either
Francisco or Walter in the proceedings below as actions taken by
the Creeches.

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Smith v. Creech

neck injury in the crash, which required treatment. He also
stopped driving the school bus because doing so exacerbated the
pain caused by the crash. He sued the Creeches, asserting claims
for negligent operation of a motor vehicle against Francisco and
negligent entrustment of a vehicle against Walter.

Smith’s Pretrial Motions

¶4 Smith filed various motions before trial. In one, he asked
the district court to admit a summary of his post-accident medical
bills. The Creeches opposed the motion, arguing that it was
Smith’s “burden to lay proper foundation at trial for each and
every item.” 2 The Creeches also quoted Gorostieta v. Parkinson,
2000 UT 99, ¶ 35, 17 P.3d 1110, for the “general rule” that “once
injuries have been shown, evidence is required to show that the
medical expenses accurately reflect the necessary treatment that
resulted from the injuries and that the charges are reasonable.” In
response, Smith contended that he had disclosed all the bills to
the Creeches and that they had not made a specific objection to
any of them. The court granted the motion, concluding that Smith
properly disclosed “the medical documents that [were] the basis

2. The Creeches also lodged an objection to Smith’s pretrial
disclosure of the medical bills and the related summary on the
ground that Smith would “need to lay proper foundation for
medical bills claimed at trial.” Specifically, the Creeches brought
the “objection to hold [Smith] to his burden at trial to prove,
through adequate foundation, that each medical bill was
reasonable in cost [and] accurately reflective of the treatment
provided, and that the treatment was medically necessary and
causally related to the accident.” The Creeches’ pretrial
opposition and related objection were important because, under
rule 26(a)(5)(B) of the Utah Rules of Civil Procedure, unraised
objections, other than those “under Rules 402 and 403 of the Utah
Rules of Evidence . . . are waived unless excused by the court for
good cause.”

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for [the] summary” under rule 1006 of the Utah Rules of
Evidence. 3

¶5 In another motion, Smith sought “an order excluding all
evidence, testimony, and/or arguments regarding injuries [he]
suffered . . . that [were] unrelated to the damages sought and that
ha[d] no causal connection to the injuries at issue in this case.”
(Emphasis added.) The Creeches responded that the motion was
“premature” because (1) it was not clear that the experts would
agree that these other issues were unrelated to the damages
claimed by Smith and (2) these issues could “become relevant for
some other” reason at trial. Smith responded that it was “too late”
for the Creeches to designate an expert to testify about the
unrelated medical issues. Relying on Harris v. ShopKo Stores, Inc.,
2013 UT 34, 308 P.3d 449, the district court agreed with Smith and
granted the motion. Specifically, the court explained that Smith
was “not seeking damages related to his carpal tunnel syndrome,
hip degeneration, hip replacements, or medical issues involving
his legs.” “Because the deadline for expert witness disclosures”
had expired, and because the Creeches “failed to previously
disclose how [Smith’s] carpal tunnel syndrome or hip or leg issues
[were] relevant to the case at hand,” the court barred the Creeches
“from discussing these preexisting conditions or any other
preexisting condition at trial which [was] not related to the crash.”

3. Rule 1006 allows a party to “use a summary, chart, or
calculation to prove the content of voluminous writings,
recordings, or photographs that cannot be conveniently examined
in court.” Utah R. Evid. 1006. However, “[t]he proponent must
make the originals or duplicates available for examination or
copying, or both, by other parties at a reasonable time or place.”
Id. The court may also order that the proponent produce those
records in court. Id.

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¶6 In a third motion, Smith asked that the court bar Dr.
Mattingly, the Creeches’ non-retained expert,4 from testifying
about purported surveillance footage of Smith after the accident
because the Creeches never disclosed the video footage. The
Creeches responded that they did not have the videos and had
never reviewed them, but they argued that Dr. Mattingly should
be allowed to testify about what she saw in the footage.5 The court
sustained Smith’s objection under rules 702 and 901 of the Utah
Rules of Evidence and rule 26(d) of the Utah Rules of Civil
Procedure. The court found that there were “simply too many
questions about who took the video surveillance and whether the
videos were edited or altered.” Particularly troubling to the court
was that Smith never received “a copy of the videos” and that Dr.
Mattingly could not confirm “that the videos [were] an accurate
representation of [Smith].”

Smith’s Pretrial Objections

¶7 The parties stipulated to record the deposition testimony
of two expert witnesses—Dr. Mattingly and Smith’s expert, Dr.
Giovanniello—who would not be available to testify at trial. The
Creeches asked Dr. Giovanniello about Smith’s lower back pain
and his related surgery that predated the accident. Smith objected
to the question based on the court’s order barring evidence of the
unrelated medical issues. The court sustained the objection,
concluding that the Creeches’ “experts never disclosed any

4. Dr. Mattingly conducted an “independent medical evaluation”
of Smith in connection with Smith’s workers’ compensation claim.
Dr. Mattingly also authored a report detailing her findings from
the evaluation.

5. The videos were apparently acquired by a private investigator
in connection with the workers’ compensation claim.

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opinion as to how [Smith’s] low back conditions and treatment
[were] relevant to [his] injuries tied to this particular crash.” 6

¶8 Smith also raised several objections to Dr. Mattingly’s
testimony. One centered on her opinions about the undisclosed
surveillance footage that the court had previously resolved.
Another objection related to whether Dr. Mattingly was qualified
to opine on biomechanics under rule 702 of the Utah Rules of
Evidence. Smith argued that the issue was outside Dr. Mattingly’s
“expertise as a medical doctor,” that she “did none of the
work . . . required to reach an opinion about forces or thresholds
of injury,” and that her biomechanical opinions had not been
disclosed. In response, the Creeches asserted that Dr. Mattingly
had significant “experience looking at the biomechanics of
injuries” and that “she commonly view[ed] videos of incidents
and people getting injured” as part of “her role in evaluating
workplace injuries.” Therefore, the Creeches argued, Dr.
Mattingly was qualified to opine about biomechanics. The court
agreed with Smith and sustained the objection under rule 702 and
under rule 26(d)(4) of the Utah Rules of Civil Procedure.

The Trial

¶9 The case proceeded to a four-day jury trial. During the
Creeches’ cross-examination of Smith’s son, Smith became
concerned that the Creeches were treading close to violating the
court’s ruling barring evidence of the other medical issues. Smith
requested a sidebar and asserted the Creeches were “trying to

6. At oral argument on the objection, the Creeches asserted that
evidence of Smith’s lower back pain was relevant in assessing his
credibility. The court conducted a balancing test under rule 403 of
the Utah Rules of Evidence and concluded that the evidence was
relevant but that its probative value was substantially
outweighed by the danger of confusing the issues and wasting
time.

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Smith v. Creech

make an allocation” without an expert. In response, counsel for
the Creeches stated, “I’m not asking for allocation. We’re talking
about life in general. What has changed for the quality of life of
this man? And right now, they’re telling us it’s the bus accident,
and I want to explore that with [Smith’s son].” He also stated, “I
don’t want to violate [the court’s] ruling, but I’m going to get
close, and . . . my intent is not to get there. It’s going to be based
upon what [Smith’s son] tells me.”

¶10 After Smith rested his case, the Creeches moved for a
partial directed verdict related to expenses for Smith’s medical
treatments after March 19, 2020, because Dr. Giovanniello had not
reviewed any of Smith’s medical records beyond that date,
including the records for his 2022 neck surgery. The Creeches
argued that the “jury would simply be speculating about . . .
linkage that is beyond its knowledge and experience” because
Smith failed to offer expert testimony “linking the injury to the
necessity” of the treatments. The Creeches also invoked Gorostieta
and argued, “[Dr. Giovanniello] didn’t talk about the necessity or
reasonableness of the expenses on any of the expenses at all. So in
that context, there might even be a basis for all of the medical
expenses to be struck.”

¶11 In response, Smith pointed to Dr. Giovanniello’s testimony
that he had recommended that Smith get neck surgery to address
injuries he sustained in the accident and that he understood Smith
had undergone that surgery. In their rebuttal, the Creeches did
not address the reasonableness of the expenses and instead
focused on the causal link between the injury and the surgery.
Without commenting on the reasonableness of the expenses, the
court denied the motion for a directed verdict, concluding that Dr.
Giovanniello’s testimony was sufficient to establish the link
between the injury and the necessity of the surgery. After its
ruling, the court asked counsel for both sides if there was
“anything else” that the parties “need[ed] to address on that
point.” Both sides responded in the negative.

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Smith v. Creech

¶12 After the case was submitted, the jury returned a verdict
for Smith, finding the Creeches liable and awarding Smith nearly
$670,000 in damages, including $302,400 in general damages.

ISSUES AND STANDARDS OF REVIEW

¶13 On appeal, the Creeches maintain that the court erred in
denying their motion for a directed verdict, asserting that Smith
did not demonstrate the reasonableness of the medical expenses
he incurred after March 19, 2020. We “review the . . . denial of a
motion for directed verdict for correctness.” Proctor v. Costco
Wholesale Corp., 2013 UT App 226, ¶ 6, 311 P.3d 564. Under this
standard, “we review the evidence and all reasonable inferences
that may fairly be drawn therefrom in the light most favorable to
the party moved against, and [we] will sustain the denial if
reasonable minds could disagree with the ground asserted for
directing a verdict.” Beard v. K-Mart Corp., 2000 UT App 285, ¶ 5,
12 P.3d 1015 (cleaned up). On the other hand, “we will reverse a
[district] court’s denial of a motion for a directed verdict . . . if,
[when] viewing the evidence in the light most favorable to the
prevailing party, we conclude that the evidence is insufficient to
support the verdict.” Neely v. Bennett, 2002 UT App 189, ¶ 14, 51
P.3d 724 (cleaned up).

¶14 The Creeches also argue that the court erroneously
excluded various evidence under rules 403 and 702 of the Utah
Rules of Evidence and rule 26(d) of the Utah Rules of Civil
Procedure. We review a court’s evidentiary rulings and discovery
orders for an abuse of discretion. Anderson v. Larry H. Miller
Commc’ns Corp., 2015 UT App 134, ¶ 17, 351 P.3d 832 (evidentiary
rulings); Phillips v. Skabelund, 2021 UT App 2, ¶ 16, 482 P.3d 237
(discovery orders). However, we review a court’s “exercise of its
discretion . . . to ensure that no mistakes of law affected [the]
court’s use of its discretion.” Eskelson ex rel. Eskelson v. Davis Hosp.
& Med. Center, 2010 UT 59, ¶ 5, 242 P.3d 762 (cleaned up). And as

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Smith v. Creech

is relevant in this case, we review a court’s interpretation of
caselaw for correctness. State v. Cooke, 2025 UT 6, ¶ 19, 567 P.3d
541.

ANALYSIS

I. Directed Verdict

A. Preservation

¶15 Smith argues that the Creeches failed to preserve their
argument on the court’s directed verdict ruling. Specifically, he
argues that the Creeches “did not timely object to the
reasonableness of Smith’s medical bills” and that the directed
verdict “was not a proper objection to the adequacy of foundation
regarding reasonableness of bills.” We disagree. 7

7. Nonetheless, before we proceed to our discussion, we observe
that the Creeches’ principal brief does not comply with rule
24(a)(5) of the Utah Rules of Appellate Procedure. As is relevant
here, the rule provides that “[p]rincipal briefs must contain . . . [a]
statement of the issue” and, for each issue, “(A) the standard of
appellate review with supporting authority; and (B) citation to the
record showing that the issue was preserved for review; or a
statement of grounds for seeking review of an issue not
preserved.” Utah R. App. P. 24(a)(5). In the “Statement of the
Issues” section of their principal brief, the Creeches merely state
the four issues they raise on appeal. They neither set forth the
applicable standards of review nor provide citations to the record
showing where the issues were preserved or otherwise explain
why an exception to the preservation rule applies. However, the
failure to strictly comply with the dictates of rule 24(a)(5) is not
necessarily fatal. See In re B.D., 2024 UT App 104, ¶ 37 n.9, 556 P.3d
(continued…)

20240793-CA 9 2025 UT App 195
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¶16 We will not review an issue on appeal unless the appellant
shows that it is preserved or can otherwise demonstrate that an
exception applies. Cove at Little Valley Homeowners Ass’n v. Traverse
Ridge Special Services Dist., 2022 UT 23, ¶ 23, 513 P.3d 658. To
preserve an issue, a party must present it “in such a way that the
[district] court has an opportunity to rule on” it. Scott Anderson
Trucking Inc. v. Nielson Constr., 2020 UT App 43, ¶ 23, 462 P.3d 822
(cleaned up). While preservation “does not turn on the use of
magic words or phrases, . . . the party must sufficiently raise the
issue to a level of consciousness before the [district] court.” Id.
(cleaned up).

¶17 When they moved for a directed verdict at trial, the
Creeches read from Gorostieta v. Parkinson, 2000 UT 99, ¶ 35, 17
P.3d 1110, specifically highlighting the proposition that a party
seeking to offer medical expenses into evidence must “show that
the medical expenses [accurately] reflect the necessary treatment
that resulted from the injuries and that the charges are
reasonable.” The Creeches proceeded to argue that Dr.
Giovanniello “didn’t talk about the necessity or reasonableness of
the expenses on any of the expenses at all” and that, consequently,
“there might even be a basis for all of the medical expenses to be
struck.” The court denied the motion without addressing the
reasonableness of the expenses. When asked if there was anything
else that needed to be addressed with respect to the directed
verdict, the Creeches answered in the negative.

¶18 To be sure, the Creeches could have asked the court to rule
specifically on reasonableness when they were asked if anything
else needed to be addressed. But the district court would have

86. And it isn’t in this case because, elsewhere in their briefing, the
Creeches state the applicable standards and demonstrate that the
issues were in fact preserved. See id. But we remind litigants that
it is always best practice to follow the requirements of the rules in
the first instance.

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Smith v. Creech

likely viewed this as the Creeches attempting to reargue their
point after the court had ruled—a practice unwelcome by most
district courts. And their failure to respond to the district court’s
clarifying question must be considered in context. Smith did not
address their reasonableness argument in responding to the
objection, so the Creeches presumably focused on what Smith did
say. Moreover, the Creeches had cited Gorostieta’s rule on
reasonableness in two separate pretrial filings, including once to
specifically argue, among other things, that Smith had the
“burden at trial to prove, through adequate foundation, that each
medical bill was reasonable in cost.” These filings informed the
district court on the issue, thus highlighting that it was an
argument the Creeches intended to make. Against this backdrop,
when they highlighted Gorostieta’s language about
reasonableness and then further argued the reasonableness point,
the Creeches raised the issue to an adequate level of consciousness
before the district court. See Scott Anderson Trucking Inc., 2020 UT
App 43, ¶ 23. Therefore, the issue is preserved.

B. Merits

¶19 On the merits, the Creeches argue that the district court
should have directed a verdict in their favor “for medical
expenses incurred after March 19, 2020,” because Smith “failed to
adduce foundational ‘reasonableness’ evidence for the claimed
medical expenses incurred after that date.” We agree.

¶20 “[O]nce injuries have been shown, evidence is required to
show that the medical expenses accurately reflect the necessary
treatment that resulted from the injuries and that the charges are
reasonable.” Gorostieta v. Parkinson, 2000 UT 99, ¶ 35, 17 P.3d 1110.
As we explained in Stevenett v. Wal-Mart Stores, Inc., 1999 UT App
80, 977 P.2d 508, a party can provide this foundation in a number
of ways. Obviously, it can call the medical provider who rendered
the service or a representative from the insurance company to
testify about the reasonableness of the expenses. Id. ¶ 31. The

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Smith v. Creech

party can also provide foundation by offering the bills and
“testf[ying] that the proffered bills were for medical expenses
arising from the injuries received in the [underlying incident],
were forwarded for payment to [the party’s] insurance company,
and were paid without objection by the insurance company.” Id.
¶ 32.

¶21 In the proceedings below, Dr. Giovanniello testified that he
had recommended that Smith get neck surgery and that he
understood Smith had undergone the procedure. That testimony
related to the necessity of the surgery.8 Dr. Giovanniello offered no
testimony concerning the reasonableness of the expenses; indeed,
he expressly testified he did not review any such records. And
Smith offered no other evidence of the reasonableness of the
incurred expenses, such as whether the bills were actually paid by
the insurance company without objection. 9 A court has no way to
assess whether a medical bill, standing alone, constitutes evidence
of a reasonable charge. Holding otherwise would be tantamount
to a declaration that “necessity” and “reasonableness” are

8. It is worth mentioning that Dr. Giovanniello had not reviewed
any of the medical records of the surgery so it is not even clear
that the surgery he recommended and the surgery that were
performed were the same.

9. We think it important that Smith has not pointed to any other
documentary evidence or testimony related to the reasonableness
of the expenses. And while we are under no obligation to comb
through the record to ascertain whether Smith testified that the
bills had been paid without objection, see, e.g., Allen v. Friel, 2008
UT 56, ¶ 9, 194 P.3d 903 (“An appellate court is not a depository
in which a party may dump the burden of argument and
research.” (cleaned up)), we have done so and have been unable
to identify any such testimony.

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Smith v. Creech

synonymous. To the extent that Stevenett did not make it clear, the
two concepts are indeed distinct.

¶22 Smith relies on two cases to argue that he “laid sufficient
foundation” to establish that the post-March 2020 medical
expenses he incurred were reasonable. In Klein v. Harper, 186
N.W.2d 426 (N.D. 1971)—a negligence case that we cited in
Stevenett, 1999 UT App 80, ¶ 31—the court determined “that there
[was] evidence of causal connection and necessity but no evidence
as to reasonable value of the services except the actual amount”
of the incurred medical expenses. Klein, 186 N.W.2d at 432.
Nonetheless, the court admitted the evidence because there was
no objection to “[t]he reasonableness of the expenses.” Id. By
contrast, the Creeches objected no fewer than three times to
evidence of Smith’s medical expenses on reasonableness grounds.
Therefore, Klein does not help Smith’s argument.

¶23 The other case upon which Smith relies is Florez v. Schindler
Elevator Corp., 2010 UT App 254, 240 P.3d 107. There, the
defendant had moved for a directed verdict because the plaintiff
allegedly provided neither “an evidentiary basis for . . . past [and]
future medical expenses” nor any “expert testimony regarding
[the plaintiff’s] life expectancy.” Id. ¶ 33. The court denied the
motion, and we affirmed. Id. ¶¶ 1, 9, 33. We noted that the parties
stipulated to submit summaries of the plaintiff’s medical bills to
the jury that “broke down [the plaintiff’s] various medical bills by
date and provider.” Id. ¶ 33.

¶24 Smith argues that “[i]f the billing summary discussed in
Florez was sufficient foundation for reasonableness,” then the
foundation he laid in the instant case “was also sufficient.” But the
facts here are demonstrably different because the Creeches did
not stipulate to the reasonableness of the expenses or any
summary of the bills. In fact, they expressly objected to Smith’s
use of a summary in this case. The reasonableness of the expenses

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Smith v. Creech

simply was not at issue in Florez, so that case does also not help
Smith here.

¶25 In short, Smith did not adduce evidence of the
reasonableness of the medical expenses he incurred after March
19, 2020. 10 Consequently, the evidence—even when we view it in
the light most favorable to Smith—was not sufficient to support
the district court’s denial of the directed verdict motion. We
therefore reverse the denial of that motion and remand this matter
so that the judgment may be amended accordingly. 11

II. Evidentiary Rulings and Discovery Orders

¶26 The Creeches also argue that the district court abused its
discretion in excluding (1) any evidence of Smith’s preexisting
and subsequent medical issues that the Creeches did not link to
Smith’s asserted damages with expert testimony, (2) Dr.
Mattingly’s testimony about the surveillance footage of Smith,
and (3) Dr. Mattingly’s biomechanical-engineering opinions. We
address each argument in turn.

10. Smith is correct that “expert testimony is not required to lay
foundation for the reasonableness of medical bills” under Utah
law. See Stevenett v. Wal-Mart Stores, Inc., 1999 UT App 80, ¶ 31,
977 P.2d 508 (declining to require expert medical testimony to
establish reasonableness of medical expenses). The problem is
that Smith has not pointed us to anything in the record suggesting
that he offered any evidence that the post-March 2020 expenses
were reasonable. See supra note 9.

11. We also acknowledge that this reversal necessitates a
reconsideration of general damages since the evidentiary
landscape in which the jury made its general damages assessment
has materially changed.

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A. Other Medical Issues

¶27 The Creeches maintain that the district court abused its
discretion when it excluded all evidence of Smith’s “separate
injuries that occurred before and after the crash.” We agree
because the court’s ruling relied on an erroneous interpretation of
Harris v. ShopKo Stores, Inc., 2013 UT 34, 308 P.3d 449. See State v.
Cooke, 2025 UT 6, ¶ 19, 567 P.3d 541 (“A district court’s
interpretation of . . . caselaw presents [a] question[] of law that we
review for correctness.”). And that error demonstrably harmed
the Creeches because it fundamentally altered the complexion of
the evidence considered by the jury as it pertained to general
damages in this case.

¶28 In ShopKo, the plaintiff was sitting on a display chair at a
store when the chair broke and she fell to the ground. 2013 UT 34,
¶ 3. She suffered “deep abdominal pain” as a result and believed
that “something had come loose from a previous surgery.” Id. She
sued the store, asserting a claim for negligence. Id. ¶ 6. After the
parties rested, the district court instructed the jury on
apportionment. Id. ¶ 12. The plaintiff objected to the instruction
because “there was no expert testimony to guide the jury on how
to apportion damages” and because the instruction addressed “an
aggravation of symptomatic preexisting conditions” when “the
evidence . . . [did] not support that finding.” Id. ¶ 13. The court
overruled the objection, concluding that one of the plaintiff’s
treating providers testified that her fall “may have aggravated a
degenerative disc disorder,” which meant that there was
“evidence of a preexisting condition.” Id. The jury found in favor
of the plaintiff but awarded her less than half of her requested
medical expenses and just $1,000 in general damages. Id. ¶ 14.

¶29 On appeal, this court reversed and ordered a new trial, and
the supreme court affirmed our reversal. Id. ¶ 41. The supreme
court explained that there was “no expert testimony in the record
on the extent to which [the plaintiff’s other] conditions contributed

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to her pain, if at all.” Id. ¶ 37. Without such testimony, the court
concluded that the instruction on apportionment was erroneous
because “the evidence failed to supply the jury with a
nonarbitrary basis for apportioning damages.” Id. ¶ 41.

¶30 As we have explained elsewhere, “the issue in ShopKo was
whether there was sufficient evidence to support giving an
apportionment instruction to the jury.” Schreib v. Whitmer, 2016
UT App 61, ¶ 17, 370 P.3d 955 (citing ShopKo, 2013 UT 34, ¶ 31).
“Although the ShopKo court observed that evidence of preexisting
conditions must overcome the standard evidentiary hurdles in
order to be admissible, the court rendered no holding as to
whether the evidence of the plaintiff’s prior car accidents and
preexisting conditions was admissible at trial.” Id. (cleaned up).
Instead, the case centered on “whether there was sufficient
evidence to support giving an apportionment instruction to the
jury.” Id. 12

12. Like the instant case, Schreib involved a car accident where the
plaintiff was rear ended by the defendant. Schreib v. Whitmer, 2016
UT App 61, ¶ 2, 370 P.3d 955. The defendant sought to offer
evidence of the plaintiff’s “preexisting medical conditions and
prior automobile accidents.” Id. ¶ 4. The plaintiff “argued that the
evidence was not relevant and should be excluded because [the
defendant] had not designated an expert who could provide
testimony that any preexisting condition, of which might be
adduced by [the defendant], contributed in any way to [the
plaintiff’s] present condition and/or the injuries received in the
collision at issue.” Id. (cleaned up). The district court determined
that the evidence was relevant and admitted it. Id. ¶ 5. On appeal,
we distinguished ShopKo and affirmed. Id. ¶¶ 1, 16–17. We
explained that the evidence was relevant because it “had a
tendency to disprove [the plaintiff’s] contention that the
[defendant’s negligence] was the sole cause of her injuries and the
resulting medical care costs.” Id. ¶ 21.

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Smith v. Creech

¶31 Here, the district court relied on ShopKo to bar all evidence
of Smith’s previous and subsequent medical issues that the
Creeches could not connect to Smith’s asserted damages with
expert testimony. In so ruling, the district court appears to have
conflated admissibility and relevance on the one hand with
apportionment on the other. On appeal, Smith’s argument suffers
from the same flaw. For example, he contends that “[t]he general
rule is that evidence of a pre-existing condition is irrelevant unless
the defendant presents a ‘nonarbitrary basis for apportioning the
cause of [the plaintiff’s] postaccident condition . . . between the
accident and his preexisting condition.’” (Quoting Gines v.
Edwards, 2017 UT App 47, ¶ 48, 397 P.3d 612 (omission and second
alteration in original).) In fact, the “general rule” of which the
Gines court spoke was that a plaintiff “is entitled to recover for all
harm . . . proximately caused by a defendant’s negligence,
including aggravation of a preexisting condition.” 2017 UT App
47, ¶ 35 (cleaned up). We do not read that language to require that
a district court bar a defendant from adducing relevant evidence
of a plaintiff’s preexisting condition that it cannot necessarily tie
to the plaintiff’s asserted damages with expert testimony. Cf.
Schreib, 2016 UT App 61, ¶ 17 (explaining that the plaintiff’s
reliance on ShopKo’s “apportionment language” was “misplaced”
because “the issue in ShopKo was whether there was sufficient
evidence to support giving an apportionment instruction to the
jury”).

¶32 Despite Smith’s argument to the contrary, the evidence of
his other medical issues was plainly relevant in this case, even on
those issues for which the Creeches didn’t have expert testimony.
In its computation of general damages, for example, the jury
didn’t need expert testimony to be able to determine whether
Smith’s quality of life was affected by the accident. Cf. Smith v.
Ingersoll-Rand Co., 214 F.3d 1235, 1245 (10th Cir. 2000) (“Attempts
to quantify the value of human life have met considerable
criticism in the literature of economics as well as in the federal

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Smith v. Creech

court system. Troubled by the disparity of results reached in
published value-of-life studies and skeptical of their underlying
methodology, the federal courts which have considered expert
testimony on hedonic damages in the wake of [Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),] have unanimously
held quantifications of such damages inadmiss[i]ble.”).

¶33 It appears that the district court’s ruling had the practical
effect of keeping the Creeches from eliciting this type of testimony
at trial, not just from expert witnesses, but also from fact witnesses
such as Smith’s son or Smith himself. 13 This effect can be seen in
how Smith briefs the issue. He argues that the court “allowed
extensive ‘before and after’ evidence about [his] function at work
and at home.” But we think it telling that, of the eleven citations
to the record in support of this assertion, ten are based on
testimony elicited by Smith, not the Creeches. 14 In fact, Smith

13. It also isn’t clear why the Creeches should have been barred
from asking Dr. Giovanniello questions about Smith’s unrelated
medical issues. By Dr. Giovanniello’s own admission, he
reviewed Smith’s medical records from “before the crash” and
“after the crash.” However, we discern no error in the court’s
ruling on the motion in limine to the extent it barred the Creeches’
experts from opining on Smith’s unrelated medical issues based
on a lack of disclosure under rule 26(d)(4) of the Utah Rules of
Civil Procedure. See Utah R. Civ. P. 26(d)(4) (“If 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.”).

14. The lone instance cited by Smith of such testimony elicited by
the Creeches was that Smith “had to quit driving [the] bus” after
the accident, which did not relate to any of his conditions or other
health limitations.

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Smith v. Creech

likely would have had trouble finding many such instances in the
record, given the Creeches’ comment during trial that they were
careful with their questioning so as not to run afoul of the court’s
ruling. See supra ¶ 9.

¶34 This does not end the inquiry, however, as the Creeches
must show that the error was harmful to obtain reversal. See
Glacier Land Co. v. Claudia Klawe & Assocs., LLC, 2006 UT App 516,
¶ 13, 154 P.3d 852. We conclude that the error was in fact harmful
in this case.

¶35 The Creeches assert that Smith falsely “painted the picture
that . . . everything that[] [had] changed since the bus accident
[was] because of the bus accident.” They also argue that “[i]f the
jury would have heard the full extent of [Smith’s] non-accident
injuries, which arose before and after the crash, it very likely
would not have awarded such a substantial amount in damages”
to Smith. In response, Smith argues that the Creeches “could not
be harmed by an inability to seek an apportionment of damages
. . . because [they] chose not to seek an apportionment” and
because they were still allowed to “vigorously cross examine
Smith without getting into an impermissible area that the [court]
already found to not be relevant to this jury’s determination.”

¶36 Smith’s argument overlooks that the district court’s
decision fundamentally altered the evidentiary landscape with
respect to general damages, which are meant to “compensate an
individual for a diminished capacity for the enjoyment of life.”
Pinney v. Carrera, 2020 UT 43, ¶ 36, 469 P.3d 970 (cleaned up). Such
damages seek to quantify the “difference between what life would
have been like without the harm done and what it is like as a result
of the harm.” Id. (cleaned up). By barring all testimony about
Smith’s other medical issues, the court kept the jury from getting
the full picture on how Smith’s enjoyment of life was actually
affected by the Creeches’ negligence. In a case where the jury

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Smith v. Creech

awarded Smith more than $300,000 in general damages, the
court’s error was clearly harmful.

¶37 In sum, the district court relied on an erroneous
interpretation of Harris v. ShopKo to prevent the Creeches from
eliciting relevant testimony from lay witnesses about Smith’s
other medical issues. Because that ruling dramatically altered the
evidentiary picture of general damages in this case, we conclude
that the error was harmful. Therefore, the Creeches are entitled to
a new trial on general damages. 15

B. Dr. Mattingly’s Surveillance-Based Opinions

¶38 The Creeches argue that the district court abused its
discretion when it excluded Dr. Mattingly’s opinions about the
surveillance footage. We disagree.

¶39 Under rule 702(b) of the Utah Rules of Evidence, a party
introducing expert testimony based on “[s]cientific, technical, or

15. Smith also argues that the court properly excluded evidence
of his lower back pain under rule 403 of the Utah Rules of
Evidence because its “probative value was substantially
outweighed by confusing the issues, . . . confusing the jury, and
wasting time.” We disagree. The court conducted the balancing
test on a faulty premise—that evidence of Smith’s other medical
issues, like the lower back pain, was only marginally relevant. As
we have explained, such evidence was highly relevant as it related
to general damages. We think the court’s calculus would have
changed on the balancing test, particularly because it stated that
it was “concerned about having a trial within a trial[,] . . .
confusing the issues, [and] wasting the jury’s time on issues that
don’t amount to much.” (Emphasis added.) It appears upon this
record that the court’s assessment was too narrowly focused on
issues of potential apportionment and did not consider how its
ruling would affect the jury’s consideration of general damages.

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Smith v. Creech

other specialized knowledge” must make a “threshold showing”
that “the principles or methods . . . underlying . . . the testimony
(1) are reliable, (2) are based upon sufficient facts or data, and
(3) have been reliably applied to the facts.” Here, the district court
concluded that there were “too many questions about who took
the video surveillance and whether the videos were edited or
altered.” To be sure, the court could have been clearer about the
specific basis for its ruling. It noted that there were “not sufficient
indicia of reliability to permit Dr. Mattingly to testify about what
she saw on the videos and what conclusions she drew from those
observations.” (Emphasis added.) As the Creeches note, “rule
702(b)’s reliability requirement does not apply to expert
witnesses’ conclusions, but rather to the principles and methods
underlying their conclusions.” Taylor v. University of Utah, 2020
UT 21, ¶ 40, 466 P.3d 124 (cleaned up).

¶40 But the “indicia of reliability” also go to the sufficiency of
the underlying facts and data. Dr. Mattingly could not confirm
that the surveillance videos accurately depicted Smith. And the
Creeches do not assert that they themselves tried to verify that
Smith was in the videos. Under these circumstances, we cannot
say that the district court’s ruling exceeded the limits of
reasonability. See ConocoPhillips Co. v. Utah Dep’t of Transp., 2017
UT App 68, ¶ 12, 397 P.3d 772 (noting that we will not reverse a
district court’s decision to exclude expert testimony under rule
702 “unless it exceeds the limits of reasonability”). 16

16. Because the district court properly excluded Dr. Mattingly’s
surveillance-based opinions under rule 702, we need not address
whether it abused its discretion in concluding that the Creeches’
expert disclosure was deficient under rule 26 of the Utah Rules of
Civil Procedure or that the Creeches were required to lay
foundation for the testimony under rule 901 of the Utah Rules of
Evidence.

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Smith v. Creech

C. Dr. Mattingly’s Biomechanical Opinions

¶41 The Creeches argue that the district court abused its
discretion when it excluded Dr. Mattingly’s biomechanical
opinions. We again disagree.

¶42 Rule 26(a)(4)(E) of the Utah Rules of Civil Procedure
requires “a party intend[ing] to present evidence at trial” from a
non-retained expert witness to “serve on the other parties a
written summary of the facts and opinions to which the witness
is expected to testify.” Smith observes that “the Creeches stated
that Dr. Mattingly would testify consistent with a prior report and
deposition, leaving Smith to sift through voluminous materials.”

¶43 In the deposition, Dr. Mattingly testified that she did not
“have a degree in biomechanics” or otherwise “do research or
publish in the field of biomechanics.” In the report, Dr. Mattingly
(1) detailed the results of the physical examination that she
performed on Smith, (2) summarized Smith’s medical records
dating back to July 1998, (3) summarized her review of the
accident and surveillance videos noted above, and (4) offered her
general impressions. The Creeches point to a snippet in the report
to claim that they provided notice to Smith that Dr. Mattingly
would testify about biomechanical issues. In that snippet, she
states, “I was provided with a copy of video taken inside the bus
at the time of the accident. . . . The driver of the bus is seen at the
time of impact being jerked forward quickly, but [his] whole
upper body moves forward, not just the neck. There is no
significant neck flexion or extension noted.”

¶44 We take the Creeches’ point that “the distinction between
motion and force that [Smith] attempts to draw is without a
difference, as the motion depicted in the accident video was
determined by (and illustrative of) the level of force involved in
the collision.” But given that the only references to
“biomechanics” during her deposition make clear that Dr.

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Smith v. Creech

Mattingly did not have a formal background in the topic, we
cannot say that the district court abused its discretion when it
excluded Dr. Mattingly’s biomechanical opinions under rule
26(d)(4) of the Utah Rules of Civil Procedure. See Green v. Louder,
2001 UT 62, ¶ 37, 29 P.3d 638 (explaining that “[district] courts
have broad discretion in matters of discovery” and that we “will
not find abuse of discretion absent an erroneous conclusion of law
or where there is no evidentiary basis for the [district] court’s
ruling” (cleaned up)). 17

CONCLUSION

¶45 The district court should have granted the Creeches’
motion for a directed verdict because Smith offered no evidence
of the reasonableness of the medical expenses he incurred after
March 19, 2020. The court also abused its discretion when it
excluded all evidence of Smith’s other medical issues that the
Creeches could not connect to the asserted damages with expert
testimony. The error was harmful because it fundamentally
altered the evidentiary landscape regarding general damages in
this case. While we discern no error in the other challenged
rulings, we reverse and remand this matter for the district court
to (1) direct a verdict on Smith’s post-March 2020 medical
expenses in the Creeches’ favor and (2) hold a new trial on general
damages.

17. Because the district court acted within its discretion in
excluding Dr. Mattingly’s biomechanical opinions under rule
26(d)(4), we need not address whether the court erroneously
excluded the opinions under rule 702 of the Utah Rules of
Evidence.

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