Peterson v. Hyundai Motor

2021 UT App 128

THE UTAH COURT OF APPEALS

LARRY PETERSON AND GLORIA PETERSON,
Appellants and Cross-appellees,
v.
HYUNDAI MOTOR COMPANY, HYUNDAI MOTOR AMERICA,
AND MURDOCK HYUNDAI LLC,
Appellees and Cross-appellants.

Opinion
No. 20190979-CA
Filed November 18, 2021

Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 160401657

Trent J. Waddoups, John E. Hansen, and
Bradley W. Madsen, Attorneys for
Appellants and Cross-appellees
Tracy H. Fowler, Paul Shakespear, Annika L. Jones,
Matthew H. Lembke, and Jude S. Halawi, Attorneys
for Appellees and Cross-appellants

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1 A fire that started in their carport—where their hybrid
Hyundai Sonata (the Car) was parked—destroyed Larry and
Gloria Petersons’ home and most of its contents. Believing that
the fire started as a result of a manufacturing defect in the Car,
the Petersons sued Hyundai Motor Company, Hyundai Motor
America, and Murdock Hyundai LLC (collectively, Hyundai)
for, among other things, negligence and products liability. A jury
awarded the Petersons $752,000 in damages, but the trial court
refused to add prejudgment interest to that award. In addition,
Peterson v. Hyundai Motor

the court denied Hyundai’s motion for judgment as a matter of
law, but granted Hyundai’s motion for new trial, determining
that problems with jury instructions and with the Petersons’
expert disclosures warranted a retrial.

¶2 Following entry of the trial court’s order granting
Hyundai’s motion for new trial, the Petersons filed both a notice
of appeal and a petition for leave to file an interlocutory appeal.
The notice of appeal—purporting to directly appeal from both
the new trial order as well as any “subsidiary rulings denying
prejudgment interest and attorney fees”—was broader than the
petition for interlocutory appeal, which sought leave to
challenge only the new trial order. Hyundai, for its part, filed no
petition for interlocutory appeal, but did file a notice of cross-
appeal purporting to directly appeal from the trial court’s order
denying its motion for judgment as a matter of law. A panel of
this court determined that appellate jurisdiction existed over the
direct appeal, but it also granted the Petersons’ petition for
interlocutory appeal and consolidated the two appeals.

¶3 Upon reconsideration of the jurisdictional question, we
conclude that we lack appellate jurisdiction to consider a direct
appeal from an order granting a new trial in a civil case, and that
we must therefore dismiss both the Petersons’ direct appeal—
including their challenge to the ruling regarding prejudgment
interest—and Hyundai’s direct cross-appeal. We proceed to
consider the merits of the issue raised in the Petersons’
interlocutory appeal: whether the trial court properly granted a
new trial. On that issue, we affirm the trial court’s order and
remand for further proceedings, including a new trial.

BACKGROUND

¶4 On the Monday before Thanksgiving, Larry Peterson
woke early to catch a flight to Florida to celebrate the holiday
with his daughter. While in the bathroom, Larry noticed the

20190979-CA 2 2021 UT App 128
Peterson v. Hyundai Motor

lights flickering on and off. He quickly woke Gloria and the two
went to investigate. Soon they could smell “electrical smoke”
and noticed an abnormal light coming from the carport area. As
they looked through a window from the house into the carport,
they saw “a big fire coming out through the top” of the Car’s
sunroof. Larry described the fire as not “a normal fire,” because
it was “like sparklers, like electrical,” and “looked like the 4th of
July.” Gloria called first responders, and the couple only had
time to quickly get dressed and grab the family dog before
fleeing the home. Firefighters were eventually able to extinguish
the blaze, but not before it destroyed the Petersons’ home and
most of its contents.

¶5 The Petersons had purchased the Car just four months
earlier; its entire maintenance history consisted of one oil change
a few weeks before the fire. Gloria was the primary driver of the
Car and, other than one late-summer trip to Wyoming, the
Petersons had used the Car only to travel “around town.” The
day before the fire—a Sunday—Gloria had driven the Car to
church and back, returning for good just after 4:00 p.m. To the
best of Gloria’s recollection, she had turned the car off before
proceeding into the house, although she was not “100 percent”
sure about that. But later that night, after dark, the Petersons’
son-in-law came over and noticed that several cats were sitting
on the car where the windshield met the hood, and he felt the
hood and observed that it was warm.

¶6 After the fire, the Petersons learned that the local fire
marshal who had investigated the blaze had concluded that the
fire had started in the Car, under the hood in the engine
compartment. And the Petersons consulted with two other
experts—Gary Hodson, a fire investigator, and John Palmer, an
electrical engineer—who likewise concluded that the fire had
started in the Car, and who in addition concluded that the likely
cause of the fire was a manufacturing defect: a high-voltage
electrical cable (the Cable) running from the Car’s battery to its

20190979-CA 3 2021 UT App 128
Peterson v. Hyundai Motor

engine had been improperly pinched or crushed between the
Car’s frame and its suspension assembly, causing the Cable’s
insulation to wear away over time. Eventually, the Petersons
sued Hyundai, bringing claims for products liability, negligence,
and breach of warranty, and seeking damages for loss of
property.

¶7 Just a few weeks after filing their complaint, the Petersons
provided initial disclosures to Hyundai. Although at that point
the parties were not yet required to disclose even the names of
their retained experts, let alone any report from them, see Utah R.
Civ. P. 26(a)(1), the Petersons produced a copy of “preliminary”
reports prepared by both Hodson and Palmer. In Hodson’s
report, he offered no opinion as to the precise spot in the Car’s
undercarriage where the Cable had been pinched. But Palmer
did: his report included a photograph with a superimposed
green arrow indicating precisely “where the [C]able had been
crushed.” That photograph showed the pinch point being very
near a particular bolt hole in the Car’s undercarriage; we refer to
this potential pinch point as “Point 1.”

¶8 After the conclusion of fact discovery, the Petersons
formally designated Hodson and Palmer as retained experts, in
keeping with the requirements of Utah procedural rules, see id.
R. 26(a)(4)(C)(i), and stated in that disclosure that both Hodson
and Palmer would “testify consistent with [their] preliminary
report[s].” Following these expert disclosures, Hyundai opted to
take depositions of Hodson and Palmer rather than require them
to submit more complete reports. See id. R. 26(a)(4)(B).

¶9 During Hodson’s deposition, he offered specific opinions
that the fire had started inside the Car and was caused by the
Cable having been pinched or crushed. But Hodson was not
asked to—and did not—identify the precise point at which the
Cable was pinched, stating only generally that it had been
pinched somewhere in “the lower frame area,” a nonspecific

20190979-CA 4 2021 UT App 128
Peterson v. Hyundai Motor

area that Hodson stated was depicted in a series of eleven
different photographs attached to his report.1 At the conclusion
of his deposition, Hodson was asked if, during the deposition, he
had “given [Hyundai] all of the opinions that [he] expect[ed] to
testify to at trial,” and he answered in the affirmative.

¶10 During Palmer’s deposition, he likewise offered specific
opinions that the fire started inside the Car and was caused by
the Cable being pinched or crushed. He also opined that the
Cable had been energized at the time the fire started, although
he could not definitively say how that came to be; in his view,
either Gloria had left the Car on when she came home from
church, or the safety systems built into the Car had
malfunctioned. Palmer, like Hodson, was not directly
asked about the precise location where the Cable had been
pinched; he was, however, asked whether “the entire sheath
[was] pinched, . . . or just the [C]able,” and he responded by

1. Hyundai acknowledges that Hodson was never directly asked
to identify the precise pinch point, but asserts that Hodson
indirectly identified it by referring to two photographs as
showing “the path of the [C]able into the [frame]” of the Car. In
our view, Hyundai is reading too much into Hodson’s
deposition testimony. As an initial matter, the question pending
at the time of Hodson’s statements about the two specific
photographs had to do with his general opinion “that the fire
started in the vehicle,” and not about the precise location of the
pinch point. In this context, Hodson offered only a general
statement that the Cable was pinched “in the lower frame area,”
which area was shown, from different angles, in a series of
eleven photographs. And more to the point, Hodson’s
identification of a part of the “path of the [Cable]” does not
amount to specific identification of the point at which the Cable
was pinched, especially when that statement is viewed in
context.

20190979-CA 5 2021 UT App 128
Peterson v. Hyundai Motor

stating that “[t]he entire assembly” was pinched, and
volunteered that when he looked at the undercarriage of the Car,
he “could see the [C]able goes right up to this frame member
and comes out the other side,” and that he “took the nut off,
opened it up, and lo and behold here it was.” He referred to a
“mark on the frame” and on “the lower arm,” and stated that
“[r]ight in there is where it was,” but the record does not reveal
whether Palmer was referring to any specific diagram or
photograph during that portion of his testimony. At the
conclusion of his deposition, Palmer was asked whether he had
“expressed all of the opinions today that [he expected] to express
at trial,” and he stated that “[n]othing else comes to mind right
now” and “obviously my report contains a lot of the information
we’ve already discussed” but that he could not “think of
anything that’s in the report that we haven’t already discussed.”

¶11 To rebut the opinions of Hodson and Palmer, Hyundai
designated engineer Jeff Colwell as an expert witness. Colwell
prepared a report setting forth his conclusions; Hyundai
provided that report to the Petersons, in lieu of a deposition. In
his report, Colwell opined that the Car was not the cause of the
fire, and that the fire had instead been the result of one of several
other potential causes, although he could not say which one. In
particular, Colwell took issue with Hodson’s and Palmer’s
conclusion that the fire had been caused by the Cable being
pinched, specifically opining that the Cable could not have been
“crushed in the location [Point 1] in which [Palmer] alleges the
fault occurred” because that location was too far away from
where the Cable was routed. He also opined that the Cable could
not have been energized at the time of the fire, and therefore
could not have caused the fire in any event.

¶12 Some nine months after issuance of Colwell’s report, the
case proceeded to a five-day jury trial. The Petersons called eight
witnesses to support their case, including themselves as well as
Hodson, Palmer, and the local fire marshal. The bulk of the

20190979-CA 6 2021 UT App 128
Peterson v. Hyundai Motor

Petersons’ damages evidence came in through Gloria. With
regard to the value of the damaged real property, Gloria testified
about certain cost estimates that had been obtained regarding
the repair of their home, and that, in her view as a property
owner, the home had been worth more than the repair cost
estimates. With regard to the value of the damaged personal
property, the Petersons offered into evidence a spreadsheet
detailing some 1,500 items that had been damaged or destroyed,
their respective replacement values, and an estimate regarding
each item’s depreciation prior to the fire. While Gloria had
provided some of the information used to create the spreadsheet,
she had not prepared it and testified only briefly about it, stating
that some of the items on the list were “not entirely accurate” but
were the “best estimate” she knew of, and that she had “no idea”
where the depreciation figures came from. The Petersons called
no expert to testify about the computation of their claimed
damages.

¶13 Hodson testified on the second day of trial. During his
testimony, as he did at his deposition, Hodson opined that the
fire had started in the Car, and that its origin could be traced to
the pinched Cable. This time, though, Hodson identified a
particular location as the pinch point: a spot near a different bolt
hole than the one Palmer had identified in his report. We refer to
this potential pinch point as “Point 2.” During the testimony,
Hyundai lodged no objection to Hodson’s identification of the
pinch point; Hyundai later explained that, in the moment, it did
not realize (due to the configuration of the photographs to which
Hodson was pointing) that Hodson was identifying a different
pinch point than Palmer had identified in his report.

¶14 Later that evening, after court had adjourned for the day,
the Petersons’ counsel emailed to Hyundai’s counsel a set of
PowerPoint slides that Palmer planned to use during his trial
testimony, which was scheduled for the following day. When
Hyundai examined those slides, it realized that Palmer intended

20190979-CA 7 2021 UT App 128
Peterson v. Hyundai Motor

to testify that the pinch point was actually Point 2, and not Point
1 as his report indicated. That evening, a Hyundai attorney
drafted a “bench brief” regarding Palmer’s “changed and
undisclosed expert opinions,” which Hyundai presented to the
court and to the Petersons’ counsel when court reconvened the
next morning. In that brief, as well as orally, Hyundai asked the
trial court to bar Palmer from testifying, or at least limit his
testimony by preventing him from opining that the pinch point
was at Point 2. Hyundai asserted that Palmer’s Point 2 opinion
had not been previously disclosed and contradicted an opinion
Palmer had set forth in his report.

¶15 In response, the Petersons’ counsel acknowledged that
Palmer had attached the wrong photograph (the one identifying
the pinch point location as Point 1) to his report, but
characterized Hyundai’s argument as “a straw man” and
asserted that Colwell had known all along where the true pinch
point was because he had been present during disassembly of
the Car and had seen it for himself. The trial court accepted the
Petersons’ representation that Colwell had been present during
disassembly and had seen the actual pinch point, and on that
basis, despite concluding that there had “been some misleading
testimony about which bolt hole was at issue,” the court
substantially denied Hyundai’s motion and allowed Palmer to
testify that Point 2 was the actual pinch point location.

¶16 Thereafter, Palmer took the stand and, as he did at his
deposition, opined that the fire had started in the Car, and had
been caused by the Cable being pinched. This time, though, he
testified that the Cable was pinched at or near Point 2. He
explained that this opinion was different from what had been
expressed in his report because he “put the wrong picture in
[his] report.” Palmer also opined that the Cable had been
energized at the time of the fire, and listed reasons for that
opinion, although he could not say “precisely what led to the
[C]able being energized.” On cross-examination, when asked

20190979-CA 8 2021 UT App 128
Peterson v. Hyundai Motor

why he did not have a photograph of the Cable stuck in the
pinch point, Palmer acknowledged that the Cable had “come
loose” due to fire damage and had “come out of the pinch point”
before disassembly of the Car, and that therefore none of the
experts, including Colwell, had been able to actually observe the
Cable in its pinched state.

¶17 Immediately following Palmer’s direct examination, and
outside the presence of the jury, the trial court, sua sponte, stated
that it was “not really happy with the direction that this has
taken,” and offered its view that the Petersons should have
supplemented their disclosures as soon as they learned that
Palmer had attached the wrong photograph to his report and
that he intended to offer testimony inconsistent with that
photograph. The Petersons’ counsel, in response, proffered that
the Petersons’ litigation team had learned of the error only “last
week as [they were] preparing for trial.” Discussion about the
issue continued at the conclusion of the Petersons’ case, when
Hyundai not only asked for a directed verdict on the merits of
the Petersons’ claims but also renewed its motion to exclude all
or part of Palmer’s testimony, this time styled as a motion to
strike. Hyundai argued that the Petersons had not disclosed
Palmer’s Point 2 opinion until the day before Palmer testified,
and asserted that “in so doing, [the Petersons] severely
prejudiced” Hyundai. The court denied Hyundai’s motion for
directed verdict, but granted in part Hyundai’s motion to strike,
determining that because of the Petersons’ late disclosure of
Palmer’s Point 2 opinion “it’s appropriate to strike Dr. Palmer’s
testimony with respect to the routing of the [C]able.” The court
indicated that it would give the jury a “supplemental jury
instruction[]” to that effect when the time came to instruct the
jury. Hyundai later asked the court to include within its
instruction a command to disregard not only Palmer’s testimony
about the pinch point, but Hodson’s as well; the court declined
that invitation, although it stated that Hyundai was free to argue

20190979-CA 9 2021 UT App 128
Peterson v. Hyundai Motor

that, “to the extent” Hodson was merely “previewing” Palmer’s
testimony, then Hodson’s testimony is “equally flawed.”

¶18 In Hyundai’s presentation of its case to the jury, it called
two witnesses, including Colwell, who offered his opinions that
the Car could not have been the cause of the fire; that there was
no defect in the Cable; and that, even if there had been, it could
not have started the fire because it had not been energized at the
time the fire started.

¶19 After all evidence had been presented, the court
instructed the jury. With regard to Palmer, the court gave the
following specific instruction: “The testimony of Dr. Palmer
regarding the routing of the high-voltage [C]able and the
placement of the alleged fault point is stricken. You are
instructed . . . to disregard that portion of Dr. Palmer’s
testimony.”

¶20 At the outset of the case, the court had given a general
instruction regarding the “preponderance of the evidence”
burden of proof that applies in civil cases. That instruction, taken
directly from the Model Utah Jury Instructions (MUJI),2 explains
what “preponderance of the evidence” means, but that
introductory instruction—unlike its criminal counterparts3—

2. See Model Utah Jury Instructions 2d CV117 (2018),
https://www.utcourts.gov/resources/muji/inc_list.asp?action=sho
wRule&id=1#117 [https://perma.cc/L6FD-LWS9].

3. See id. CR102, https://www.utcourts.gov/resources/muji/inc_lis
t.asp?action=showRule&id=29#102 [https://perma.cc/8WVF-
SQQC] (stating that “[t]he prosecution must prove each
element beyond a reasonable doubt” and that “[t]he defendant
does not have to prove anything”); id. CR103,
https://www.utcourts.gov/resources/muji/inc_list.asp?action=sh
(continued…)

20190979-CA 10 2021 UT App 128
Peterson v. Hyundai Motor

does not mention which party bears the burden; instead, it states
simply that “the party” with the burden of proof “must
persuade you, by the evidence, that the fact is more likely to be
true than not true.” And the specific MUJI instructions that set
forth the elements of negligence and strict liability in the
products liability context—unlike many other MUJI instructions,
including the MUJI elements instruction in the general
negligence context4 and the MUJI elements instruction for breach
of warranty in the products liability context5—likewise do not
specify which party bears the burden of proof; instead, those
instructions state simply that the jury “must decide whether” the
elements of the claim are met.6 With this in mind, Hyundai had
asked that specific language be added to these two MUJI

(…continued)
owRule&id=29#103 [https://perma.cc/274B-PMFS] (“The
prosecution has the burden of proving the defendant guilty
beyond a reasonable doubt.”).

4. See id. CV202A, https://www.utcourts.gov/resources/muji/inc_
list.asp?action=showRule&id=2#202A [https://perma.cc/AE47-
L3SQ] (stating that, “[t]o establish negligence, [name of plaintiff]
has the burden of proving” several elements).

5. See id. CV1028, https://www.utcourts.gov/resources/muji/inc_l
ist.asp?action=showRule&id=10#1028 [https://perma.cc/WM55-
RA3C] (stating that, to establish a claim of breach of express
warranty in the products liability context, “[name of plaintiff]
must prove” several elements).

6. See id. CV1002, https://www.utcourts.gov/resources/muji/inc_l
ist.asp?action=showRule&id=10#1002 [https://perma.cc/85PU-
7HY7]; id. CV1016, https://www.utcourts.gov/resources/muji/inc
_list.asp?action=showRule&id=10#1016 [https://perma.cc/J2HY-
526X].

20190979-CA 11 2021 UT App 128
Peterson v. Hyundai Motor

elements instructions in order to make clear that the Petersons—
and not Hyundai—bore the burden of proof on those claims. The
court—as trial judges often do—took refuge in MUJI, and denied
Hyundai’s request; rather, the court determined to simply give
the instructions as they appear in MUJI, stating that it thought
that “the MUJI instructions address [the burden of proof]
properly,” even though “it’s not all encapsulated in one
instruction.” The court also declined to use Hyundai’s proposed
special verdict form—which would have specified that the
Petersons bore the burden of proof on their claims—and instead
gave the jury a different special verdict form that did not so
specify.

¶21 Several days earlier, during his opening statement,
Hyundai’s counsel—perhaps due to his awareness of the jury
instructions’ failure to speak to the topic—stated that he wanted

to pause and emphasize one thing that you heard
in the judge’s preliminary jury instructions. There’s
a burden of proof that’s important to keep in mind
in this case, and all of the things you just heard [the
Petersons’] counsel say that they intend to prove to
you, they have the burden to persuade you that
that’s true by a preponderance of the evidence.

During closing arguments, which took place immediately after
the post-evidence jury instructions were given, Hyundai’s
counsel again emphasized that the Petersons bore the burden of
proof, stating specifically that it was the Petersons’ “burden to
prove that there’s a defect. It’s their burden to prove that that
defect was unreasonably dangerous. It’s their burden to prove
that that defect caused this fire.”

¶22 Following closing arguments, the jury deliberated until
almost midnight. Eventually, the jury returned a verdict in favor
of the Petersons on the strict liability and negligence claims, but
in favor of Hyundai on the breach of warranty claim. The jury

20190979-CA 12 2021 UT App 128
Peterson v. Hyundai Motor

awarded the Petersons $752,000: $368,000 for damage to their
house, and $384,000 for damage to their personal property.

¶23 Following the verdict, both parties sought additional
relief from the court. The Petersons filed a motion and a
proposed judgment that asked the court to add prejudgment
interest to the jury’s award of damages, asserting that their
losses were “fixed in time” and quantifiable through
mathematical computation, and therefore eligible for
prejudgment interest. The trial court denied the Petersons’
motion and refused to award prejudgment interest, concluding
that “[t]he jury did not use a formula put forward by either
party, but used its own judgment” to calculate damages.

¶24 For its part, Hyundai filed a motion “for judgment as a
matter of law or, in the alternative, for a new trial.” In arguing
for judgment notwithstanding the verdict, Hyundai asserted
(among other things) that the Petersons had produced
insufficient evidence to show that any manufacturing defect—
even if one were presumed to have existed—had caused the fire,
claiming that insufficient evidence existed to support the
contention that the Cable had been energized at the time of the
fire. In arguing for a new trial, Hyundai asserted that the
admission of Hodson’s and Palmer’s Point 2 opinions, as well as
infirmities in the jury instructions, required a retrial. The trial
court, after reviewing voluminous briefing and holding oral
argument, denied Hyundai’s motion for judgment as a matter of
law, concluding that the Petersons’ evidence “provided a legally
sufficient basis for the jury to find that there was a defect in the
[Car] . . . and that such defect caused the fire.”

¶25 But the court granted Hyundai’s motion for new trial.
With regard to the expert disclosure and testimony issue, the
court concluded that “the trial testimony offered by [Palmer]
and [Hodson] differed from the opinions disclosed in their
respective written reports as well as the testimony offered at

20190979-CA 13 2021 UT App 128
Peterson v. Hyundai Motor

deposition,” and that any new opinion should have been timely
disclosed and was not. The court offered its view that the
Petersons’ actions during trial gave “all the appearances of an
ambush,” and that the court’s “curative instruction” striking
Palmer’s testimony had not effectively remedied the problem.
And with regard to the jury instructions, the court stated that it
had “placed its faith in MUJI,” but concluded upon
reconsideration that the MUJI instructions regarding negligence
and strict liability in the products liability context contained a
lacuna: they did not inform the jury that the Petersons bore the
burden of proof on those claims.

¶26 Following entry of the trial court’s order granting
Hyundai’s motion for new trial, the Petersons filed both a notice
of appeal—purporting to directly appeal—and a petition for
interlocutory appeal. In their notice of appeal, the Petersons
stated that they were challenging the trial court’s order granting
Hyundai’s motion for new trial, as well as certain “subsidiary
rulings denying prejudgment interest and attorney fees.” In their
petition for interlocutory appeal, the Petersons asked for leave to
appeal only from the trial court’s order granting Hyundai’s
motion for new trial; their petition made no mention of
attempting to challenge any other orders, including the court’s
order denying their request for prejudgment interest. Later,
Hyundai filed a notice of cross-appeal, purporting to directly
appeal from the trial court’s order denying its motion for
judgment as a matter of law. Hyundai did not seek leave to file
an interlocutory appeal.

¶27 This court issued a sua sponte motion for summary
disposition of the direct appeal, positing that the court may not
have appellate jurisdiction due to absence of finality at the
district court level. After considering briefing from the parties, a
panel of this court—in an unpublished interim order, and
relying on Kerr v. City of Salt Lake, 2013 UT 75, ¶¶ 35–37, 322 P.3d
669—concluded that “[t]his matter is appropriate as a direct

20190979-CA 14 2021 UT App 128
Peterson v. Hyundai Motor

appeal, as a matter of right,” but in an abundance of caution
granted the petition for interlocutory appeal and consolidated
the two appeals.

ISSUES AND STANDARDS OF REVIEW

¶28 On appeal, the parties present three issues for our review.
First, the Petersons challenge the trial court’s grant of Hyundai’s
motion for new trial. Second, the Petersons challenge the court’s
denial of their own motion for prejudgment interest. And third,
Hyundai challenges the court’s denial of its motion for judgment
as a matter of law. The Petersons’ petition for interlocutory
appeal raised only the first of these issues; the other two issues
were identified only in the direct appeal and cross-appeal.

¶29 While a panel of this court, earlier in this appellate case,
determined that we have jurisdiction to consider a direct appeal
under these circumstances, we now conclude otherwise. The first
part of our opinion discusses our appellate jurisdiction, and our
consideration of this issue is plenary. See Trapnell & Assocs., LLC
v. Legacy Resorts, LLC, 2020 UT 44, ¶¶ 29, 31, 469 P.3d 989
(explaining that appellate courts “have an independent
obligation to ensure [they] have jurisdiction over all matters
before [them],” and stating that evaluating the scope of our
appellate jurisdiction “presents a question of law”); Zion Village
Resort LLC v. Pro Curb USA LLC, 2020 UT App 167, ¶ 50, 480 P.3d
1055 (“We have an independent obligation to assess our own
appellate jurisdiction at any time . . . .” (quotation simplified)).

¶30 Because we conclude that we lack jurisdiction over the
direct appeal, the only issue we must confront on its merits is the
one raised in the interlocutory appeal: the Petersons’ challenge
to the court’s order granting a new trial. Generally speaking, “[a]
trial court’s decision to grant or deny a motion for a new trial is
reviewed for an abuse of discretion.” See Clayton v. Ford Motor
Co., 2009 UT App 154, ¶ 5, 214 P.3d 865. But there are two

20190979-CA 15 2021 UT App 128
Peterson v. Hyundai Motor

aspects to a court’s decision-making process in ruling on a
motion for new trial, and there are differences in the manner in
which we review each aspect.

¶31 First, a trial court must determine that there exists a
problem—an error of law, say, or a trial impropriety—that may
require a retrial. Under our rules of civil procedure, “a new trial
may be granted” for any one of seven enumerated reasons, see
Utah R. Civ. P. 59(a), and some of these listed grounds—for
instance, jury misconduct, unfair surprise, and excessive or
inadequate damages—cannot be found to exist without some
sort of factual determination on the part of the trial court. In this
context, we afford deference to a trial court’s factual
determinations. See, e.g., ASC Utah, Inc. v. Wolf Mountain Resorts,
LC, 2013 UT 24, ¶ 22, 309 P.3d 201 (“The district judge who
presided over a trial is in a far better position than an appellate
court to determine, for example, whether the evidence was
sufficient to justify the verdict or whether the jury awarded
damages ‘under the influence of passion or prejudice.’” (quoting
Utah R. Civ. P. 59(a)(5)–(6))); USA Power, LLC v. PacifiCorp, 2016
UT 20, ¶ 83, 372 P.3d 629 (discussing the standard of review on
motions for new trial and explaining that where the motion
implicates a legal question we review for correctness, but for
“evidentiary question[s], we review for abuse of discretion”).
Other grounds—for instance, the existence of legal errors, see
Utah R. Civ. P. 59(a)(7)—require no factual determination on the
part of the trial court, and we review such determinations for
correctness, see ASC Utah, 2013 UT 24, ¶ 23 (stating that a trial
court “is not necessarily in a better position than an appellate
court to identify its own errors of law,” and that “we review an
appellant’s allegations of legal error under URCP 59(a)(7) for
correctness”), but we have often stated that a trial court abuses
its discretion when it makes a legal error, see, e.g., State v. De La
Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (stating that “trial
courts do not have discretion to misapply the law” (quotation
simplified)); Maak v. IHC Health Services, Inc., 2016 UT App 73,

20190979-CA 16 2021 UT App 128
Peterson v. Hyundai Motor

¶ 26, 372 P.3d 64 (“The [trial] court abuses its discretion when its
decision rests on an erroneous legal determination.”).

¶32 Second, after determining that an error or impropriety of
some kind exists, a trial court must determine whether the
identified errors or improprieties are significant enough to
warrant a retrial. Indeed, rule 59 is, by its terms, “limited by Rule
61,” the rule discussing harmless error. See Utah R. Civ. P. 59(a);
id. R. 61 (stating that courts are to “disregard any error or defect
in the proceeding which does not affect the substantial rights of
parties”); see also Camco Constr. Inc. v. Utah Baseball Academy Inc.,
2018 UT App 78, ¶ 59, 424 P.3d 1154 (stating that the rule
granting new trials is “subject to the provisions of Rule 61”
(quotation simplified)). Sometimes, a trial impropriety’s
harmfulness will be self-evident; for instance, a finding that the
jury’s damages award was excessive and given under the
influence of passion or prejudice may naturally encompass a
determination that the problem mattered. But in other
situations—say, jury misconduct or legal error—it will not
follow, simply from the existence of an impropriety, that a new
trial is warranted. In such situations, a trial court must
undertake a second analytical step, and must assess whether the
error or impropriety was significant enough to warrant a retrial.
See ASC Utah, 2013 UT 24, ¶ 23 (stating that new trials should be
granted for legal errors only where “the error resulted in
prejudice necessitating a new trial” (quotation simplified)). And
on this score, we afford deference to a trial court’s
determination, reviewing only for abuse of discretion. See De La
Rosa, 2019 UT App 110, ¶¶ 5, 9 (stating that a trial court’s
assessment of “whether the jury misconduct in the present case
merited a new trial” is “inherently difficult for appellate courts
to second guess,” and that such questions are “entirely within
the discretion of the trial court due to its advantaged position to
judge the impact of legal errors on the total proceedings”
(quotation simplified)); see also State v. Maestas, 2012 UT 46,
¶ 325, 299 P.3d 892 (“Trial courts have discretion in granting or

20190979-CA 17 2021 UT App 128
Peterson v. Hyundai Motor

denying a motion for a mistrial . . . because of [their] advantaged
position . . . to determine the impact of events occurring in the
courtroom on the total proceedings . . . .” (quotation simplified)).

ANALYSIS

¶33 We begin, in the first section, by evaluating the scope of
our appellate jurisdiction and conclude that, although we
have jurisdiction to address the Petersons’ interlocutory appeal,
we lack jurisdiction over the Petersons’ direct appeal and
Hyundai’s direct cross-appeal. In the second section, we address
the merits of the issue raised in the Petersons’ interlocutory
appeal, namely, whether the trial court properly granted a
new trial.

I. Appellate Jurisdiction

¶34 As a general matter, litigants dissatisfied with a trial
court’s ruling are allowed to appeal only after the court has
completely resolved the case and its judgment has become final.
See Utah R. App. P. 3(a)(1) (“Except as otherwise provided by
law, a party may appeal a final order or judgment . . . .”). A
“final judgment” is a court decision that “end[s] the controversy
between the litigants.” See Loffredo v. Holt, 2001 UT 97, ¶ 12, 37
P.3d 1070; see also Utah R. Civ. P. 54(a) (“‘Judgment’ . . . includes
a decree or order that adjudicates all claims and the rights and
liabilities of all parties or any other order from which an appeal
of right lies.”). In other words, for a judgment to be considered
“final,” the subject of the litigation must be fully disposed of on
the merits for all the claims and all the parties. See Mike’s Smoke,
Cigar & Gifts v. St. George City, 2015 UT App 158, ¶ 8, 353 P.3d
626. This “final judgment rule” is “jurisdictional.” Powell v.
Cannon, 2008 UT 19, ¶ 12, 179 P.3d 799. That is, our jurisdiction is
limited to appeals taken from a final judgment, unless the appeal

20190979-CA 18 2021 UT App 128
Peterson v. Hyundai Motor

“qualifies for an exception to the final judgment rule.”7 Loffredo,
2001 UT 97, ¶ 10. If, after entry of the order or judgment in
question, “any issue remains pending, the final judgment rule is
not satisfied.” See American Family Ins. v. S.J. Louis Constr., Inc.,
2015 UT App 115, ¶¶ 6–7, 349 P.3d 772 (quotation simplified).

¶35 An “order granting a new trial is not a final judgment,”
because “it but sets aside the verdict and places the parties in the
same [legal] position as if there had been no previous trial.”
Haslam v. Paulsen, 389 P.2d 736, 736 (Utah 1964); see Dalton v.
Herold, 934 P.2d 649, 650 (Utah 1997) (stating that “the grant of a
motion for a new trial” is not immediately appealable “because it
is not a final judgment”). After a new trial has been ordered, the
case is nowhere near finished: there remain issues still to be
adjudicated in the new trial. See Kerr v. City of Salt Lake, 2013 UT
75, ¶ 37, 322 P.3d 669. Many orders that grant a new trial—the
ones that nullify a jury verdict—are eventually subject to
appellate review, but not until after the trial court finishes its
work and finally adjudicates the remaining issues, which may
not be until after the retrial is complete. See Stubbs v. Third Jud.
Dist., 150 P.2d 783, 785 (Utah 1944); see also Kerr, 2013 UT 75,
¶¶ 36–37.

¶36 The Petersons take a different view, and rely principally
on Kerr to support their position. But the Petersons’ reliance on
Kerr is misplaced. The question presented in that case was

7. Our supreme court recognizes three categories of exceptions to
the final judgment rule: (1) exceptions set forth in statute, (2)
orders properly certified as final under rule 54(b) of the Utah
Rules of Civil Procedure, and (3) interlocutory appeals for which
permission has been obtained pursuant to rule 5 of the Utah
Rules of Appellate Procedure. See Copper Hills Custom Homes,
LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶¶ 12–15, 428 P.3d
1133.

20190979-CA 19 2021 UT App 128
Peterson v. Hyundai Motor

whether a trial court ruling granting a new trial after a directed
verdict was reviewable at all, or whether that decision—like trial
court decisions denying summary judgment motions on the
basis that there exists a material factual dispute—was not ever
subject to appellate review. See Kerr, 2013 UT 75, ¶ 34 (stating
that the question at hand was “whether an appellate court may
review an order granting a new trial where a jury did not enter a
verdict in the first trial”). In Kerr, the first trial came to an end
when the court granted a motion for a directed verdict, but it
later—after the losing party filed a motion for a new trial—
determined that its directed verdict had been mistaken and
ordered a new trial. See id. ¶¶ 7–8. No party mounted an appeal
at that point; instead, the case proceeded to a second trial, where
the case came out differently: the party against whom directed
verdict was entered in the first trial prevailed before a jury at the
second trial. Id. ¶¶ 9–10. Only after the second trial ended, and a
final order was entered, did anyone attempt to seek appellate
review of the trial court’s original order granting a new trial. Id.
¶ 10.

¶37 On appeal, all the justices agreed that an order granting a
new trial after a jury verdict is (eventually) subject to appellate
review, id. ¶¶ 36, 55, but the majority determined that an order
granting a new trial that did not nullify a jury verdict was—like
an order denying a summary judgment motion on the basis that
there exists a material factual dispute—never subject to appellate
review, id. ¶¶ 35–37. There is no suggestion in Kerr that an order
granting a motion for new trial is a final order, or that such an
order is appealable right away, before the newly ordered retrial
has been completed. See generally id. Indeed, the cases cited in
Kerr supporting the proposition that an order granting a new
trial is appealable were all cases in which the appeal was
not filed until after the second trial. See id. ¶ 36 (collecting cases).
And, as noted, that was the procedural posture of Kerr itself.

20190979-CA 20 2021 UT App 128
Peterson v. Hyundai Motor

See id. ¶ 10. Thus, Kerr (and the cases cited therein) stands for the
proposition that, in civil cases,8 a trial court’s order granting a
motion for new trial is (eventually) subject to appellate review—
at least where the order nullifies the result of a jury trial—but
that any appeal of such an order must take place, if at all, only
after the second trial is finished and the case has become final.

¶38 We therefore conclude that the trial court’s order granting
Hyundai’s motion for new trial was not a final order, and was
not appealable as a matter of right in a direct appeal. Thus, the
Petersons’ attempt to mount a direct (as opposed to an
interlocutory) appeal from that order is unavailing, as is
Hyundai’s attempt to mount a direct cross-appeal from other
aspects of that same order. Direct appellate review of that order,
and of any other non-final orders entered in the case, will need
to await the entry of a final judgment disposing of all the claims
made by all the parties. See Utah R. App. P. 3(a); see also Mike’s
Smoke, 2015 UT App 158, ¶ 8.

¶39 We do, however, have appellate jurisdiction to consider
interlocutory appeals approved pursuant to rule 5 of the Utah
Rules of Appellate Procedure. See Copper Hills Custom Homes,
LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 14, 428 P.3d 1133

8. The situation is different in criminal cases, but not because
such orders are final; the difference arises only because our
legislature has created a statutory exception to the final
judgment rule authorizing prosecutors, “as a matter of right,” to
“appeal from . . . an order granting a new trial.” See Utah Code
Ann. § 77-18a-1(3)(f) (LexisNexis Supp. 2021); see also Copper
Hills, 2018 UT 56, ¶ 13 (stating that there is an “exception to the
final judgment rule” in situations where “the legislature
provides a statutory avenue for appealing nonfinal orders”
(quotation simplified)). As far as we are aware, no such statutory
exception exists in civil cases.

20190979-CA 21 2021 UT App 128
Peterson v. Hyundai Motor

(stating that interlocutory appeals are an “exception” to the final
judgment rule, but noting that such appeals are “discretionary,”
“meaning that the appellate court has the discretion to hear the
appeal as it is not an appeal as a matter of right”). Earlier in this
case, we approved the Petersons’ request to bring an
interlocutory appeal from the trial court’s order granting a new
trial, and no party asks us to revisit that grant of approval. But
the Petersons’ request for interlocutory appeal was narrower
than their direct appeal, asking us to review only the trial court’s
order granting a new trial. In that request, the Petersons did not
ask for permission to take an interlocutory appeal from any
other non-final order, such as the trial court’s order refusing to
add prejudgment interest to the judgment amount. And
although the trial court’s decision regarding its motion for
judgment as a matter of law was set forth in the same order from
which the Petersons were attempting to interlocutorily appeal,
Hyundai did not file its own request for interlocutory review of
that order.9

¶40 Our appellate jurisdiction is therefore limited to review of
the Petersons’ interlocutory appeal, and that appeal in turn is
limited to review of only the trial court’s decision to grant
Hyundai’s motion for new trial. See Houghton v. Department of
Health, 2005 UT 63, ¶ 16, 125 P.3d 860 (“On interlocutory appeal,
we review only those specific issues presented in the petition.”).

9. Although interlocutory cross-appeals were once allowed, see
Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power,
2012 UT App 20, ¶¶ 17–24, 269 P.3d 980, they are no longer
permitted under our rules, see Utah R. App. P. 5(i) (“A cross-
petition for permission to appeal a non-final order is not
permitted by this rule.”). If Hyundai had wanted to seek
interlocutory review of those portions of that order that were
decided adverse to its requests, it would have had to file its own
petition for permission to file an interlocutory appeal. See id.

20190979-CA 22 2021 UT App 128
Peterson v. Hyundai Motor

We have no appellate jurisdiction, at this point, to entertain
either party’s direct appeal, including their attempts to appeal
from the trial court’s order regarding prejudgment interest10 or
denying Hyundai’s motion for judgment as a matter of law. We
therefore dismiss the direct appeal for lack of jurisdiction, and
proceed to consider the merits of the Petersons’ interlocutory
appeal.

II. The Grant of a New Trial

¶41 We now turn to the merits of the issue properly before us
on interlocutory appeal: the Petersons’ challenge to the trial
court’s order granting a new trial.11 In that order, the court
identified two separate trial-related improprieties that it believed
warranted a retrial. We first assess the court’s determination that
these trial improprieties existed, and conclude that they did.
Next, we assess whether the identified problems were, viewed
collectively, prejudicial enough to warrant a new trial; on that

10. We cannot consider the Petersons’ challenge to the trial
court’s prejudgment interest order for jurisdictional reasons. In
addition, however, we note that the Petersons’ damages
evidence may be presented differently in a second trial, and
given our affirmance (discussed infra Part II) of the trial court’s
order granting a new trial, it makes practical—as well as
jurisdictional—sense to wait to assess the propriety of adding
prejudgment interest to any award the Petersons might win at a
second trial.

11. As part of this challenge, the Petersons also raise various
procedural arguments, claiming that Hyundai did not properly
invoke rule 59 of the Utah Rules of Civil Procedure and that the
court overstepped its bounds by injecting new matters into the
proceedings. We consider these arguments without merit and do
not discuss them further.

20190979-CA 23 2021 UT App 128
Peterson v. Hyundai Motor

score, we perceive no abuse of discretion in the trial court’s
order.

A. Trial Improprieties

¶42 In its order granting a new trial, the court determined that
two separate problems had arisen during trial. First, the court
concluded that the opinions Hodson and Palmer offered at trial
that the Cable had been pinched near Point 2 had not been
disclosed to Hyundai prior to trial; that the Petersons’ failure to
disclose these opinions earlier violated expert disclosure rules;
and that those opinions should have therefore been excluded.
Second, the court concluded that some of the jury instructions it
had given were incorrect, and failed to communicate to the jury
the fact that the Petersons bore the burden of proof on all their
claims. We discuss each of these problems, in turn.

1. Expert Disclosures

¶43 The trial court determined that the Petersons—by failing
to disclose to Hyundai until after the trial’s second day that their
experts would testify that the Cable was pinched near Point 2—
violated our rules of civil procedure regarding expert witness
disclosures, and that those new expert opinions should have
been excluded. Whether the Petersons’ disclosures violated the
rules presents, at root, a question of interpretation of our rules of
civil procedure. “The proper interpretation of a rule of
procedure is a question of law, and we review the trial court’s
decision for correctness.” Ostler v. Buhler, 1999 UT 99, ¶ 5, 989
P.2d 1073. Whether exclusion of testimony is the proper sanction
for a rules violation is a matter upon which we defer to the trial
court. See VT Holdings LLC v. My Investing Place LLC, 2019 UT
App 37, ¶ 18, 440 P.3d 767 (stating that trial courts “have broad
discretion in selecting and imposing sanctions for discovery
violations under rule 26, such as the exclusion of expert
testimony, and we will not interfere with such discretion unless

20190979-CA 24 2021 UT App 128
Peterson v. Hyundai Motor

there is either an erroneous conclusion of law or no evidentiary
basis for the trial court’s ruling” (quotation simplified)).

¶44 Under our rules, parties must disclose certain information
regarding retained expert witnesses. See Utah R. Civ. P.
26(a)(4)(A). These disclosures must occur long before trial,
generally just days after fact discovery has been completed, see
id. R. 26(a)(4)(C), and they must include “a brief summary of the
opinions to which the witness is expected to testify,” as well as
“the facts, data and other information specific to the case that
will be relied upon by the witness in forming those opinions,” id.
R. 26(a)(4)(A). Upon receiving expert disclosures from an
opposing litigant, a party may seek further information from the
expert “either by deposition or by written report.” See id. R.
26(a)(4)(B). If a party requires the expert to prepare a report, that
report “must contain a complete statement of all opinions the
expert will offer at trial and the basis and reasons for them.” Id.;
see also Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225,
¶ 21, 438 P.3d 25 (“The election of a report locks in the scope of
the expert’s testimony by operation of the rule itself . . . .”), aff’d,
2020 UT 59, 472 P.3d 927. If a party elects to take the expert’s
deposition, “it is up to the party deposing the expert to ‘lock in’
the expert’s opinion,” and the expert “is bound by the
testimony” given in a deposition. See Arreguin-Leon, 2018 UT
App 225, ¶ 21.

¶45 Rule 26 imposes a duty on all parties to supplement their
expert disclosures, if necessary, as the lawsuit proceeds. Indeed,
“[i]f a party learns that a disclosure . . . is incomplete or incorrect
in some important way, the party must timely serve on the other
parties the additional or correct information if it has not been
made known to the other parties.” Utah R. Civ. P. 26(d)(5); see
also Dahl v. Dahl, 2015 UT 79, ¶ 71, 459 P.3d 276 (“Parties must
supplement only if they discover their initial responses were
incomplete or incorrect in some important way and that the
corrective information was not already known to the other

20190979-CA 25 2021 UT App 128
Peterson v. Hyundai Motor

party.” (quotation simplified)). A party who fails to meet its
disclosure obligations, including its obligation to seasonably
supplement those disclosures, faces the probability of having its
expert witness barred, in whole or in part, from testifying at trial.
See Utah R. Civ. P. 26(d)(4) (stating that “[i]f a party fails to . . .
supplement timely a disclosure” when the duty is present, the
party may not later use the “document or material at any
hearing or trial unless the failure is harmless or the party shows
good cause for the failure”); see also Arreguin-Leon, 2018 UT App
225, ¶ 21 (“[T]he party sponsoring the expert remains
responsible, under penalty of exclusion of testimony, to
supplement any disclosures or discovery responses previously
made—including responses given in a deposition.” (quotation
simplified)).

¶46 These rules, taken together, provide that a retained expert
witness generally may not testify at trial regarding matters not
“fairly disclosed” to the other side prior to trial. See Utah R. Civ.
P. 26(a)(4)(B) (“[A]n expert may not testify in a party’s case-in-
chief concerning any matter not fairly disclosed in the report.”);
see also Arreguin-Leon, 2018 UT App 225, ¶ 21 (stating that an
“expert witness is bound by the testimony she gives in a
deposition”). Indeed, “the intent of rule 26 . . . is to preclude
parties from trying to gain an advantage by offering ‘surprise’
testimony at trial that has not been disclosed to, or evaluated by,
the opposing party.” Arreguin-Leon, 2018 UT App 225, ¶ 24.

¶47 In this case, the trial court correctly determined that the
Petersons had violated their duty to supplement their
disclosures regarding Palmer’s expert opinions. When the
Petersons designated Palmer as a testifying expert, they
provided a preliminary report that included a picture of the
Car’s undercarriage with a superimposed arrow identifying
Point 1 as the location “where the [C]able had been crushed.”
Hyundai then elected to depose Palmer, and at the deposition—
although it did not ask Palmer about the pinch point directly—it

20190979-CA 26 2021 UT App 128
Peterson v. Hyundai Motor

asked Palmer whether he had “expressed all of the opinions
today that [he expected] to express at trial,” and he responded
by stating that “[n]othing else comes to mind right now” and
“obviously my report contains a lot of the information we’ve
already discussed” but that he could not “think of anything
that’s in the report that we haven’t already discussed.” Fairly
construed, Palmer’s deposition testimony indicates that he was
planning to stick to his opinion—clearly expressed in the
preliminary report—that the Cable had been crushed near Point
1. And prior to trial, the Petersons never issued supplemental
expert disclosures indicating that Palmer had changed his
opinion on that issue.

¶48 It was not until the evening after the second day of trial
(the night before Palmer’s scheduled trial testimony), when the
Petersons’ counsel emailed a set of PowerPoint slides to
Hyundai’s counsel, that the Petersons disclosed that Palmer
would be offering a different opinion as to the precise location of
the pinch point. We agree with the trial court that the Petersons’
obligation to supplement their expert disclosures regarding
Palmer arose earlier than that; indeed, the Petersons
acknowledge that they learned of Palmer’s intent to change his
opinion regarding the pinch point at least a week prior to trial.
And there is no evidence in the record that Hyundai knew of
that change at any point prior to receiving the PowerPoint slides.

¶49 Moreover, the difference in Palmer’s opinion appears to
be important. We acknowledge the Petersons’ point that, at some
level, the precise location of the pinch point does not matter to
their theory of causation—according to the Petersons, Hyundai
should be liable regardless of whether the Cable was pinched at
Point 1, at Point 2, or someplace else. But the precise location of
the pinch point mattered to the cohesiveness of Palmer’s overall
theory of how the fire started, and to his credibility; indeed, in
rebutting Palmer’s opinions, Hyundai (and Colwell) spent a lot
of energy arguing that Palmer’s theory was infirm given that

20190979-CA 27 2021 UT App 128
Peterson v. Hyundai Motor

Point 1 was located too far from the routing of the Cable for it to
have possibly been pinched there. Our rules require
supplementation if the original disclosure is “incomplete or
incorrect in some important way,” see Utah R. Civ. P. 26(d)(5),
and we have no trouble concluding that, in the ebb and flow of
this particular case, Palmer’s opinion about the precise location
of the pinch point was important enough to trigger
supplementation obligations.

¶50 With regard to Hodson, the analysis is slightly different,
but we reach the same result. One difference between Hodson’s
situation and Palmer’s is that Hodson, in his preliminary report,
offered no opinion—via photographs or otherwise—regarding
the precise location of the pinch point. After the Petersons
disclosed Hodson as one of their retained experts, Hyundai
opted to take Hodson’s deposition, and a litigant who makes
that election assumes the burden of “‘ask[ing] the necessary
questions to “lock in” the expert’s testimony.’” See Arreguin-Leon,
2018 UT App 225, ¶ 24 (quoting Utah R. Civ. P. 26 advisory
committee notes). At the deposition, Hyundai did not ask
Hodson whether he had any opinion about the precise location
of the pinch point. See supra note 1. But Hyundai did ask
Hodson, at the end of his deposition, whether he had the chance
to set forth “all of the opinions that [he] expect[ed] to testify to at
trial,” and Hodson answered in the affirmative, without
indicating that he had an opinion regarding the precise location
of the pinch point. In Arreguin-Leon, we concluded that such a
question was sufficient to “lock in” an expert’s testimony to only
those opinions that had been offered at the deposition. See id.
¶ 25. Indeed, we held that an expert who attempted to offer an
opinion not set forth either in the expert disclosure or at a
deposition in which that “lock-in” question had been asked had
“exceeded both the scope of the disclosure and scope of the
deposition as ‘locked in’ by questioning.” Id.

20190979-CA 28 2021 UT App 128
Peterson v. Hyundai Motor

¶51 Unlike Palmer, Hodson in his trial testimony did
not contradict any opinion he offered in his preliminary
report or in his deposition. But he did offer a new opinion not
set forth in either his preliminary report or his deposition,
even after having been asked at his deposition if he had shared
with Hyundai all the opinions he intended to share at trial. Our
rules require supplementation when expert disclosures are
“incomplete or incorrect in some important way.” See Utah R.
Civ. P. 26(d)(5). Palmer’s disclosures (as the Petersons eventually
conceded) were incorrect, and the supplementation obligation
was triggered on that basis. Hodson’s disclosures were
not incorrect, but they were materially incomplete, an
eventuality that also triggers supplementation obligations. And
we have already explained, in our discussion of Palmer’s
opinions and disclosures, why these experts’ opinions regarding
the precise location of the pinch point were important in
this case.

¶52 Accordingly, we agree with the trial court that the
Petersons violated disclosure supplementation obligations with
regard to both Palmer and Hodson, and that those experts’
opinions, expressed at trial, that the Cable had been pinched
near Point 2 constituted “‘surprise’ testimony” that, prior to trial,
had “not been disclosed to, or evaluated by” Hyundai. See
Arreguin-Leon, 2018 UT App 225, ¶ 24. And we discern no reason
not to defer to the trial court’s conclusion that, in this instance,
the proper remedy for the disclosure violation should have been
exclusion of the undisclosed opinions.12

12. The Petersons make no argument, in their briefing, that they
had good cause for their failure to supplement, or that such
failure was harmless. See Utah R. Civ. P. 26(d)(4).

20190979-CA 29 2021 UT App 128
Peterson v. Hyundai Motor

2. Jury Instructions

¶53 The second trial-related infirmity the trial court identified
concerned potential errors in the jury instructions regarding
products liability. This infirmity is an “error in law,” see Utah R.
Civ. P. 59(a)(7), and we review for correctness a trial court’s
determination regarding legal error, see ASC Utah, Inc. v. Wolf
Mountain Resorts, LC, 2013 UT 24, ¶ 23, 309 P.3d 201.

¶54 As explained above, see supra ¶ 20, the jury instructions
did not fully explain that the Petersons bore the burden of proof
on their claims for negligence and strict liability in the products
liability context. The introductory burden of proof instruction
given in this case did not specify which party bore the burden of
proof; that instruction stated simply that “the party” with the
burden of proof “must persuade you, by the evidence, that the
fact is more likely true than not true.” One of the specific cause-
of-action-level instructions—the one regarding the Petersons’
claim for breach of warranty in the products liability context—
did specify that the Petersons bore the burden of proof on that
claim. But on the Petersons’ other two claims—for negligence
and strict liability in the products liability context—the
instructions did not specify that the Petersons bore the burden of
proof; instead, those instructions stated that the jury “must
decide whether” the elements of the claim were met.

¶55 We acknowledge that these instructions were taken
directly from MUJI. But our supreme court has noted that the
model instructions are not always entirely correct. See Jones v.
Cyprus Plateau Mining Corp., 944 P.2d 357, 359 (Utah 1997)
(“[T]he MUJI are merely advisory and do not necessarily
represent correct statements of Utah law.”). Trial judges, with
some justification, often take refuge in the model instructions, as
the trial court in this case initially did. But trial judges should do
so warily, and should be open to the possibility—whether raised
by counsel or discovered sua sponte—that the MUJI instructions

20190979-CA 30 2021 UT App 128
Peterson v. Hyundai Motor

might need improvement. We commend the trial court, in this
case, for being willing to take a second look at the instructions in
connection with the post-trial motions.

¶56 We agree with the trial court’s assessment that the jury
instructions—even viewed as a whole and in conjunction with
the verdict form, see State v. Garcia, 2001 UT App 19, ¶ 13, 18 P.3d
1123 (“Jury instructions must be evaluated as a whole to
determine their adequacy.”)—were infirm regarding the burden
of proof. Although the instructions did inform the jury that the
applicable burden of proof was “preponderance of the
evidence,” the instructions failed to inform the jury that the
Petersons—and not Hyundai—bore that burden with regard to
the Petersons’ claims for negligence and strict liability. The two
cause-of-action-level instructions on those counts did not so
specify (even though the instruction regarding breach of
warranty did so specify). And as the trial court eventually
determined, the general introductory instruction didn’t either,
stating simply that “the party” bearing the burden “must
persuade you.” Moreover, the special verdict form likewise did
not tell the jury that the Petersons bore the burden of proof on
those two claims. All of this is problematic, because instructions
must inform the jury which party bears the burden of proof on
which claims and defenses. See id. ¶¶ 14, 16 (stating that “burden
of proof instructions should be made plain to the jury,” and are
infirm if they do not “clearly communicate to the jury what the
burden of proof is and who carries the burden” (quotation
simplified)); cf. State v. Ramos, 2018 UT App 161, ¶ 19 n.8, 428
P.3d 334 (“Jury instructions should, at all times, clearly express
that the State bears the burden of proof.”).

¶57 Accordingly, the trial court correctly determined that the
jury instructions were erroneous, because they did not inform

20190979-CA 31 2021 UT App 128
Peterson v. Hyundai Motor

the jury that the Petersons bore the burden of proof on their
claims for negligence and strict liability.13

B. Prejudice

¶58 After determining that the trial court did not err in
concluding that there were two trial improprieties, we now turn
our attention to the second part of the inquiry: whether these
improprieties were significant enough to warrant a retrial. The
trial court determined that they were and, as noted, on this part
of the inquiry we review the trial court’s determination for abuse
of discretion. See State v. De La Rosa, 2019 UT App 110, ¶¶ 5, 9,
445 P.3d 955. We discern no abuse of the trial court’s discretion.

¶59 First, with regard to the expert disclosure issues, the trial
court was clearly quite concerned, at one point jumping in sua
sponte to express its view that it was “not really happy with the
direction that this has taken,” and later describing the Petersons’
disclosure failures as “giv[ing] all the appearances of an
ambush.” In its written ruling, the court noted that it had
allowed Palmer to offer his Point 2 opinion to the jury after
taking at face value the Petersons’ initial justification for the
nondisclosure—that Colwell had personally witnessed the
pinched Cable—and it expressed disappointment and frustration
after it was determined, through Palmer’s own testimony, that
the facts underlying this justification were untrue. The court also
noted that one of the primary contentions in Colwell’s rebuttal to

13. We urge the Advisory Committee on Model Civil Jury
Instructions to consider amending model instructions CV1002
and CV1016 to match model instruction CV1028. Such an
amendment may include removing the “you must decide
whether” language from model instructions CV1002 and
CV1016, and replacing it with language indicating that “[name
of plaintiff] must prove” the elements of the claim.

20190979-CA 32 2021 UT App 128
Peterson v. Hyundai Motor

Palmer’s opinions was that Point 1 was too far from the Cable
for the Cable to have possibly been pinched there, and that
Colwell had prepared his rebuttal report in reliance on Palmer’s
original Point 1 opinion. The court stated that it would not have
allowed the Petersons’ experts to offer their Point 2 opinions had
the court been properly informed about Colwell’s inability to
have ever personally viewed the pinched Cable, commenting
that the matter “ought to have resulted with exclusion of” the
undisclosed testimony.

¶60 The court did give a curative instruction, after Palmer had
testified, commanding the jury to “disregard” those parts of
Palmer’s testimony “regarding the routing of the [Cable] and the
placement of the alleged fault point.” But the court later
determined that “the horse, as they say, had already left the
barn,” and was concerned that the jury had relied on Palmer’s
testimony notwithstanding its curative instruction, noting that
“[i]t is difficult to know how effective a curative instruction
under these circumstances can ever be.” The effectiveness of
curative instructions is a subject of some judicial and academic
debate. See, e.g., Wilson v. IHC Hosps., Inc., 2012 UT 43, ¶ 56, 289
P.3d 369 (stating that, at least where “the potential prejudice is
the result of a party’s deliberate strategy, . . . any substantial
doubt about the effectiveness of curative instructions should be
resolved in favor of the disadvantaged party in order to protect
the integrity of the judicial process”); State v. Harmon, 956 P.2d
262, 277–78 (Utah 1998) (Durham, J., concurring) (reviewing
“some of the literature and empirical evidence” and arguing that
judicial confidence in the efficacy of curative instructions is
“unjustified”); see also David Alan Sklansky, Evidentiary
Instructions and the Jury as Other, 65 Stan. L. Rev. 407, 429 (2013)
(stating that “sometimes” curative instructions work,
“sometimes they fail, and sometimes they backfire,” and their
effectiveness depends on a host of variables, including “the
seriousness of the charge” and “the personality of the jurors”).
We do not intend to wade into that debate here. Indeed, under

20190979-CA 33 2021 UT App 128
Peterson v. Hyundai Motor

current Utah law, a court’s use of a curative instruction can be a
factor in determining that no prejudice resulted from jurors
having heard something that they shouldn’t have. See, e.g., State
v. Almaguer, 2020 UT App 117, ¶ 13, 472 P.3d 326 (“The trial
court may determine that a curative instruction is sufficient to
alleviate any prejudice . . . .”). But it strikes us that a trial judge is
in a better position than we are to evaluate the efficacy of a
curative instruction in the context of a trial that the judge just
conducted, and that a trial judge’s determination that a curative
instruction is unlikely to have alleviated the prejudice is worthy
of our deference. See, e.g., State v. Winter, 477 A.2d 323, 327 (N.J.
1984) (“[W]hen weighing the effectiveness of curative
instructions, a reviewing court should give equal deference to
the determination of the trial court.”); see also Wilson, 2012 UT 43,
¶ 56 (stating that “any substantial doubt about the effectiveness
of curative instructions should be resolved in favor of the
disadvantaged party”).

¶61 Second, with regard to whether the errors contained in
the jury instructions made a difference to the outcome of the
trial, the trial court noted that the jury found in favor of the
Petersons on the two causes of action for which they were not
informed that the Petersons bore the burden of proof, and found
in favor of Hyundai on the breach of warranty claim, for which
they were instructed that the Petersons bore the burden of proof.
Because of the split verdict, the trial court was left with “an
unsettling concern” that the erroneous instructions had made a
difference, especially given the court’s perception that “the
elements for [the breach of warranty claim] and the strict liability
claim are essentially the same.”

¶62 On the other side of the ledger, we acknowledge that
Hyundai’s counsel, during both opening statement and closing
argument, specifically told the jury that the Petersons bore the
burden of proof on all three of their causes of action. Where
attorneys, during closing argument, fill a gap in the jury

20190979-CA 34 2021 UT App 128
Peterson v. Hyundai Motor

instructions, the presence of that argument can be a factor in
determining that no prejudice resulted from the erroneous
instructions. See, e.g., Martinez v. Wells, 2004 UT App 43, ¶ 26, 88
P.3d 343 (stating that the defendant argued to the jury a matter
that the jury instructions erroneously omitted, and that the
defendant in that instance “has not shown that failing to give the
requested instructions prejudiced him”).

¶63 When we examine both of these issues in combination, we
discern no abuse of discretion in the trial court’s determination
that the improprieties were prejudicial enough to warrant a
retrial. The second issue—the erroneous jury instructions—may
not have been enough, on its own, to warrant retrial, especially
given Hyundai’s statements correcting that oversight during
argument. But taken together, these issues could very well have
made a difference to the outcome of the trial. We are especially
concerned with the expert disclosure issue, and defer to the trial
court’s determinations that it would have excluded Palmer’s
testimony had it been properly informed during the argument
that occurred on the morning of the trial’s third day, and that the
curative instruction was not necessarily effective. Had the jury
not heard Hodson and Palmer testify that the Cable was pinched
near Point 2, the outcome of the trial could well have been
different.

CONCLUSION

¶64 We lack appellate jurisdiction to consider either the
Petersons’ direct appeal or Hyundai’s direct cross-appeal, and
therefore dismiss those appeals. Accordingly, we do not reach
the parties’ challenges to the trial court’s rulings regarding
prejudgment interest or judgment as a matter of law. We do,
however, have jurisdiction to consider the Petersons’
interlocutory appeal, and on that issue we affirm the trial court’s
order granting a new trial. The case is remanded for further
proceedings consistent with this opinion.

20190979-CA 35 2021 UT App 128