Kilpatrick v. Bullough

1 Because there are many defendants involved in these
proceedings, there are also many attorneys. We list only counsel
for the above-listed appellees involved in this appeal.
2008 UT 82
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Margaret Kilpatrick, individually, No. 20060887
and as personal representative
on behalf of the legal heirs
of James Kilpatrick, Deceased,
Plaintiff and Appellant,
v.
Bullough Abatement, Inc., et al.,
Defendants and Appellees.
_____________________________________
Marvin Kirkham and Carolyn Kirkham, No. 20070156
Plaintiffs and Appellants,
v.
Garlock Sealing Technologies, LLC, F I L E D
et al.,
Defendants and Appellees. December 12, 2008
---
Third District, Salt Lake
The Honorable Glenn K. Iwasaki
Nos. 20060887, 20070156
Attorneys:1 Robert G. Gilchrist, S. Brook Millard, Bronson D.
Bills, Alan R. Brayton, Courtney G. Broaden, Salt
Lake City, for appellants
Michael F. Skolnick, Shawn McGarry, David Bernstein,
Salt Lake City, for appellee Bullough Abatement,
Inc.;
Joseph J. Joyce, Salt Lake City, for appellee Garlock
Sealing Technologies, LLC
---
PARRISH, Justice:

No. 20060887, 20070156 2
INTRODUCTION
¶1 These cases are two of several asbestos-related cases
governed by a Case Management Order (the “CMO”) that was adopted
in 2001 and applies routinely to all asbestos-related litigation
brought by the firms involved in drafting the CMO. One of the
“Additional Discovery” obligations imposed by the CMO was an
autopsy following the death of any plaintiff. Margaret
Kilpatrick and Carolyn Kirkham (collectively, the “plaintiffs”)
both failed to procure an autopsy before their husbands were
respectively cremated and buried. As a sanction for the
violation of the CMO, the district court dismissed both cases.
Plaintiffs appealed, arguing that their violations of the CMO
were neither willful nor in bad faith. The two cases were
consolidated on appeal. We hold that the district court’s
dismissal lacked an evidentiary basis to establish fault and we
therefore reverse.
FACTS
I. CASE MANAGEMENT ORDER
¶2 The facts are not in dispute. In 2001, anticipating a
substantial increase in asbestos litigation, the Third District
Court created a “Master Case File” for asbestos litigation, In re
Asbestos Litigation, Third District No. 010900863-AS. In an
effort to efficiently manage these cases, the district court
directed counsel for the plaintiffs and the defendants to develop
a case management order that would be applicable to all asbestos
cases. In May 2001, the district court adopted the first version
of the CMO, which was intended to facilitate the administration
of asbestos cases by reducing multiple filings and hearings,
minimizing discovery disputes, and setting out a standard for the
orderly disposition of cases.
¶3 One of the discovery provisions in the CMO required an
autopsy upon the death of a plaintiff (the “autopsy
requirement”). Section III-5 of the CMO provides:
Notice of Death and Autopsy: Plaintiff’s
attorney, upon learning of the death of
Plaintiff shall immediately notify counsel
for Defendants of Plaintiff’s death.
a. Plaintiff’s spouse or another of
plaintiff’s representatives shall produce the
body of the deceased for one full and
complete autopsy, including the thoracic and
abdominal cavities, to be performed by the

3 No. 20060887, 20070156
state medical examiner or a competent
pathologist designated by plaintiff’s counsel
unless otherwise ordered by the Court upon
good cause shown.
b. A showing of “good cause” may include
religious beliefs and family preferences
regarding autopsies, although these factors
are not necessarily determinative of the
issue.
c. Appropriate and adequate quantities
of tissue shall be obtained and preserved for
inspection and review by pathologists
selected by the parties and all tissue
samples selected and preserved at the autopsy
shall be made available to all parties for
appropriate medical and pathological testing.
[CMO 1, 10]
The CMO was amended twice, most recently in September 2003;
however, the autopsy requirement remained unaltered.
¶4 The CMO was the product of negotiation among all
interested parties. As one of the primary law firms for
asbestos-related litigation in Utah, Brayton Purcell participated
in developing the CMO. For this reason, the CMO applies to all
asbestos related cases filed by Brayton Purcell in Salt Lake
County. Margaret Kilpatrick and Carolyn Kirkham are two of
several plaintiffs represented by Brayton Purcell in asbestos-
related law suits.
II. KILPATRICK
¶5 James Kilpatrick and his wife Margaret filed a
complaint in February 2001 for personal injury and loss of
consortium due to Mr. Kilpatrick’s alleged exposure to asbestos.
During the course of litigation, Mr. Kilpatrick signed an
authorization for his counsel to procure a full and complete
autopsy upon his death. Mrs. Kilpatrick neither signed nor knew
of the authorization. On July 5, 2003, Mr. Kilpatrick passed
away and was cremated before an autopsy was performed. Following
Mr. Kilpatrick’s death, Mrs. Kilpatrick substituted herself as
the named plaintiff and amended the complaint to include claims
for survival and wrongful death. In 2005, Defendant Burlington
Northern & Santa Fe Railway Company (“BNSF”) filed a motion to
dismiss the amended complaint for failure to comply with the CMO
by providing Mr. Kilpatrick’s body for an autopsy.
¶6 The court dismissed Mrs. Kilpatrick’s suit in 2006 in
two separate orders relating to two separate parties. First, in

No. 20060887, 20070156 4
March, the court issued a memorandum decision concluding that
Mrs. Kilpatrick’s failure to obtain an autopsy was prejudicial to
the defendants because it hindered their ability to defend
against the claim that Mr. Kilpatrick suffered from an asbestos-
related disease. Based on this memorandum decision, the court
dismissed Defendant BNSF. In September, also relying on the
memorandum decision, the court filed a minute entry granting
Defendant Bullough Abatement, Inc.’s (“Bullough”) motion to
dismiss. Bullough was the last remaining defendant in Mrs.
Kilpatrick’s case. She filed a notice of appeal in September
2006.
III. KIRKHAM
¶7 Marvin Kirkham and his wife Carolyn, filed their
complaint in December 2005, alleging injuries and loss of
consortium due to Marvin’s alleged exposure to asbestos. Mr.
Kirkham was diagnosed with mesothelioma in October 2005. During
the course of litigation, Mr. Kirkham’s health declined
precipitously, and he passed away on May 13, 2006. In January
2006, both Mr. and Mrs. Kirkham had signed an authorization for
their counsel to procure an autopsy following Mr. Kirkham’s
death. Mrs. Kirkham stated in her affidavit that she was so
distraught following Mr. Kirkham’s death that she forgot about
the autopsy requirement and failed to notify her attorneys of Mr.
Kirkham’s death until after he was buried. As a result, no
autopsy was performed. Following Mr. Kirkham’s death, Mrs.
Kirkham filed a motion to substitute herself as the named
plaintiff. Defendant Hamilton Materials, Inc., joined by several
other defendants, filed a motion to dismiss for failure to comply
with the autopsy requirement. In a January 2007 minute entry,
the court dismissed Mrs. Kirkham’s claims as a sanction for her
failure to procure an autopsy. Mrs. Kirkham filed her notice of
appeal in February 2007.
¶8 These cases were consolidated for appeal. We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(j) (Supp.
2008).
ANALYSIS
I. JURISDICTION OVER THE BNSF DISMISSAL IN THE KILPATRICK CASE
¶9 The first issue is whether we have jurisdiction over
Mrs. Kilpatrick’s appeal of the order dismissing her claims
against BNSF. After the district court entered its memorandum
decision and its order dismissing BNSF, Mrs. Kilpatrick moved to
certify the BNSF dismissal under rule 54(b) of the Utah Rules of
Civil Procedure. BNSF did not oppose the motion, and the

2 The Notice of Appeal read in its entirety as follows:
Plaintiffs, MARGARET KILPATRICK and heirs,
hereby appeal from the Order Granting
Defendant’s Motion to Dismiss which
extinguished all claims against Bullough
Abatement, Inc. (“Bullough”) with prejudice.
The Court’s Order was entered September 21,
2006, and provided that Plaintiffs’ failure
to perform an autopsy was fatal to the causes
of action against Bullough. The Court relied
on its decision with regard to Defendant
Burlington Northern and Santa Fe Railway
Company (“BNRR”), in which it found that a
full autopsy was required pursuant to Case
Management Order no. 1, and that the
destruction of Mr. Kilpatrick’s body was
prejudicial to Defendant.
The Court’s September 21, 2006 Decision
provides that “this Minute Entry constitutes
the Order regarding the matters addressed
herein. No further Order is required.” As
such, this matter is now ripe for appeal.
Dated this 25th day of September, 2006.
5 No. 20060887, 20070156
district court certified the decision in June 2006. The district
court’s order stated in its entirety, “Plaintiff’s unopposed
motion to enter final judgment as to [BNSF] and to certify matter
as ready for appeal is granted. Plaintiff’s counsel is directed
to prepare the appropriate order.” (Emphasis removed.) Mrs.
Kilpatrick’s counsel never prepared the order.
¶10 Three months later, the district court dismissed
Bullough, the final defendant in the Kilpatrick case. The
court’s minute order relied on the reasons set forth in the
memorandum decision dismissing BNSF and designated the dismissal
as a final order. The minute entry clarified that “[n]o further
order [was] required.” Mrs. Kilpatrick filed a notice of appeal
five days later. Her notice of appeal indicated that she was
appealing the “Order Granting Defendant’s Motion to Dismiss which
extinguished all claims against Bullough Abatement, Inc.”
Although the notice of appeal referenced the court’s decision
regarding BNSF, the notice did not explicitly state that Mrs.
Kilpatrick intended to appeal the dismissal of BNSF.2
¶11 BNSF argues that we do not have jurisdiction over the
appeal because it was untimely and because the notice did not
indicate an intent to appeal the dismissal of BNSF. “‘Whether
appellate jurisdiction exists is a question of law which we

3 Code v. Utah Dep’t of Health, 2007 UT 43, ¶ 3, 162 P.3d
1097 (quoting Pledger v. Gillespie, 1999 UT 54, ¶ 16, 982 P.2d
572).
4 2007 UT 43, ¶ 5.
5 See id. ¶ 9 (“[U]nless a court explicitly directs that no
order needs to be submitted, no finality will be ascribed to a
memorandum decision or minute entry for purposes of triggering
the running of the time for appeal.”).
6 Id. ¶ 7.
7 Id. ¶ 9.
No. 20060887, 20070156 6
review for correctness, giving no deference to the decision
below.’”3
A. The Appeal Against BNSF Was Not Untimely Because the District
Court’s Minute Entry Granting Certification Was Never Entered as
an Order in Compliance with Rule 7(f)
¶12 Rule 7(f)(2) of the Utah Rules of Civil Procedure
states that “unless otherwise directed by the court, the
prevailing party shall, within fifteen days after the court’s
decision, serve upon the other parties a proposed order in
conformity with the court’s decision.” In Code v. Utah
Department of Health, we clarified that the time for appeal
begins to run with the entry of the prepared order, unless the
court either approves a proposed order submitted with the initial
memorandum or explicitly directs that no order is required.4
Thus, the minute entry or the memorandum decision alone does not
trigger the time for appeal.5 If the prevailing party fails to
enter an order within the fifteen-day period prescribed by rule
7(f)(2), the time for appeal does not begin to run. In such a
case, “any party interested in finality . . . may submit an
order.”6 Thus, if BNSF had desired finality, it could have
submitted the necessary order. In its absence, however, no
finality is ascribed to the court’s minute entry.7 Because the
final order was never prepared in compliance with rule 7(f)(2),
the order never became final; thus, the time for appeal did not
begin to run until the district court’s final order dismissing
Bullough, the final defendant in the case.
B. Mrs. Kilpatrick’s Notice of Appeal Sufficiently Conveyed Her
Intent to Appeal BNSF’s Dismissal
¶13 BNSF also argues that Mrs. Kilpatrick did not perfect
her appeal of the BNSF dismissal because she did not explicitly

8 Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 7, 977
P.2d 474.
9 Hardinger v. Scott (State ex rel. B.B.), 2004 UT 39, ¶ 10,
94 P.3d 252.
10 Id. ¶ 11.
11 Id.
12 Id.
13 2004 UT 69, ¶ 15, 98 P.3d 28.
7 No. 20060887, 20070156
state that she intended to appeal the court’s minute entry
dismissing BNSF. We hold that Mrs. Kilpatrick did perfect her
appeal because her notice of appeal sufficiently indicated her
intent to appeal the dismissal of BNSF and because BNSF was not
prejudiced.
¶14 The purpose of the notification requirement “is to
advise the opposite party that an appeal has been taken from a
specific judgment in a particular case . . . [because the
opposing party] is entitled to know specifically which judgment
is being appealed.”8 Rule 3(d) of the Utah Rules of Appellate
Procedure requires that the notice of appeal specify the “parties
taking the appeal;” the “judgment or order, or part thereof,
appealed from;” the court from which the appeal is taken; and the
court to which the appeal is directed. In determining whether
the notification requirement has been met, we have “long adhered
to the policy that where the notice of appeal sufficiently
identifies the final judgment at issue and the opposing party is
not prejudiced, the notice of appeal is to be liberally
construed.”9
¶15 Where the appealing party’s intent is clear and the
appellee suffers no prejudice, the notice of appeal is
sufficient. For example, in Hardinger v. Scott (State ex rel.
B.B.), the appellant did not identify the orders appealed from by
name.10 We reasoned that although “the notice of appeal was not
a model of clarity, it adequately notified the [appellees] of the
issues to be reviewed.”11 Moreover, the appellees did not claim
that they were misled or in anyway prejudiced by the failure to
list the orders separately.12 Similarly, in Speros v. Fricke, we
held that a notice in which the appellant used an incorrect date
in reference to the final order was sufficient.13 We reasoned
that the order appellant intended to appeal was evident in

14 Id. ¶¶ 15-16 & n.2; see also Price v. W. Loan & Sav. Co.,
100 P. 677, 679 (Utah 1909) (allowing appeal to proceed, even
though the notification improperly referred to the order appealed
from, because the notification sufficiently identified the final
judgment at issue and because the appellee was not prejudiced by
the failure).
15 Scudder v. Kennecott Copper Corp., 886 P.2d 48, 50 (Utah
1994); Utah R. App. P. 3(e).
16 Cf. Jenson v. Intermountain Power Agency, 1999 UT 10,
¶¶ 8-9, 977 P.2d 474 (finding that the rule 3 notification
requirement was not met where the notice of appeal did not
indicate an intent to appeal an earlier summary judgment decision
and where the appellee was prejudiced because the late
notification of the appeal limited the time available for filing
cross-appeal).
No. 20060887, 20070156 8
context and that no prejudice occurred as a result of the
error.14
¶16 In this case, Mrs. Kilpatrick’s intent was clear and
BNSF has not argued that it was prejudiced by her failure to
explicitly reference BNSF in the notice. In context, Mrs.
Kilpatrick’s notice of appeal provided sufficient notification of
her intent to appeal the dismissal of BNSF for four reasons.
First, it would be worthless to appeal the Bullough dismissal
without appealing the BNSF dismissal because the district court
relied on the memorandum decision dismissing BNSF to dismiss
Bullough. Second, Mrs. Kilpatrick served BNSF with her notice of
appeal in accordance with rule 3(e), which “requires that all
parties to the judgment or order being appealed be served a copy
of the notice of appeal.”15 If Mrs. Kilpatrick did not intend to
appeal the dismissal of BNSF, there would be no reason for her to
serve her notice of appeal on BNSF. Third, Mrs. Kilpatrick
referenced the BNSF memorandum decision in her notice of appeal.
Finally, BNSF has not shown any way in which it was prejudiced by
Mrs. Kilpatrick’s omission.16 We therefore reject BNSF’s claim
that Mrs. Kilpatrick did not perfect her appeal.
II. DOES THE DISTRICT COURT HAVE AUTHORITY TO REQUIRE AN AUTOPSY
IN EVERY ASBESTOS-RELATED CASE?
¶17 Mrs. Kirkham and Mrs. Kilpatrick challenge the district
court’s authority to enforce the autopsy requirement. Bullough
and BNSF argue that the challenge to the autopsy requirement is
untimely because it was not preserved in district court and
because Brayton Purcell waived the right to challenge the CMO by

17 Tuck v. Godfrey, 1999 UT App 127, ¶ 28, 981 P.2d 407.
18 Uckerman v. Lincoln Nat’l Life Ins. Co., 588 P.2d 142,
144 (Utah 1978); see also Koulis v. Standard Oil Co. of Cal., 746
P.2d 1182, 1184 (Utah Ct. App. 1987) (“If a party fails to make a
concise statement of the facts and citation of the pages in the
record where those facts are supported, the court will assume the
correctness of the judgment below.”).
19 State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551 (“Under
(continued...)
9 No. 20060887, 20070156
participating in its creation and by endorsing the CMO in its
entirety in other communications with the court.
¶18 We will not address the argument that the district
court did not have authority to enforce the autopsy requirement
because it was not raised before the district court. “Any
challenge to the merits of a discovery request must be timely
filed and put before the trial court, or the claim will be
waived.”17
¶19 Plaintiffs have not provided any record citations to
support their assertion that they challenged the autopsy
requirement before the district court. In contrast, defendants
have pointed out several occasions when Brayton Purcell urged the
district court not to approve amendments to the CMO because
amendments would upset the negotiated compromises agreed to by
the parties. For example, in a February 14, 2003 memorandum in
opposition to a motion to amend the CMO, Brayton Purcell
referenced the autopsy provision and explicitly requested that
the court not change it. Brayton Purcell concluded the memo by
explaining that “it is the plaintiffs’ position that the CMO and
its amendments have been exhaustively discussed. As part of
these discussions there has been much give-and-take and
compromise. . . . [I]t was felt that without such compromises,
there would be no case management order . . . .”
¶20 Rule 24(a)(5)(A) of the Utah Rules of Appellate
Procedure requires that parties demonstrate preservation of an
issue by providing a citation to the record showing that the
issue was presented to the district court. Rule 24(a)(7)
requires that “[a]ll statements of fact and references to the
proceedings below shall be supported by citations to the record.”
We have made it clear that “[t]his court need not, and will not,
consider any facts not properly cited to, or supported by, the
record.”18 Nor will we entertain issues raised for the first
time on appeal absent exceptional circumstances.19 Because the

(...continued)
ordinary circumstances, we will not consider an issue brought for
the first time on appeal unless the trial court committed plain
error or exceptional circumstances exist.” (internal quotation
marks omitted)).
20 Morton v. Cont’l Baking Co., 938 P.2d 271, 274 (Utah
1997) (alteration in original) (internal quotation marks
omitted).
21 Utah R. Civ. P. 37(b)(2)(C).
22 Morton, 938 P.2d at 274 (alteration in original)
(internal quotation marks omitted).
No. 20060887, 20070156 10
plaintiffs either failed to challenge the autopsy provision
before the district court, or failed to provide to this court a
record citation to their challenge, we will not address their
argument.
III. THE DISTRICT COURT ABUSED ITS DISCRETION BY DISMISSING THE
CASES FOR FAILURE TO COMPLY WITH THE AUTOPSY REQUIREMENT
¶21 Mrs. Kirkham and Mrs. Kilpatrick both argue that the
district court abused its discretion by dismissing their claims
as a sanction for their failures to obtain autopsies following
their husbands’ deaths absent evidence of willfulness, bad faith,
or fault. On the other hand, defendants argue that the district
court had “broad discretion” to dismiss and that the decision
should only be overturned if “abuse of discretion [is] clearly
shown” or there is “no evidentiary basis for the trial court’s
ruling.”20
¶22 Rule 37(b)(2) of the Utah Rules of Civil Procedure
authorizes the district court to sanction a party who “fails to
obey an order” of the court during discovery “unless the court
finds that the failure was substantially justified.” The court
may take any action that is “just,” including onerous sanctions
such as dismissing the action or rendering judgment by default
against the disobedient party.21
¶23 Our review of a district court’s imposition of
sanctions follows a two-step process. First, we ensure that the
district court has made a factual finding that the party’s
behavior merits sanctions. Second, once the factual finding has
been made, we will only disturb the sanction if “abuse of
discretion [is] clearly shown.”22 As a general rule, district
courts are granted a great deal of deference in selecting

23 First Fed. Sav. & Loan Ass’n of Salt Lake City v.
Schamanek, 684 P.2d 1257, 1266 (Utah 1984) (“The choice of an
appropriate discovery sanction is primarily the responsibility of
the trial judge and will not be reversed absent an abuse of
discretion.”).
24 Morton, 938 P.2d at 274 (internal quotation marks
omitted).
25 Utah Dep’t of Transp. v. Osguthorpe, 892 P.2d 4, 6 (Utah
1995) (internal quotation marks omitted).
26 Morton, 938 P.2d at 276.
11 No. 20060887, 20070156
discovery sanctions, and we overturn a sanction only in cases
evidencing a clear abuse of discretion.23 An abuse of discretion
may be demonstrated by showing that the district court relied on
“an erroneous conclusion of law” or that there was “no
evidentiary basis for the trial court’s ruling.”24 Our
deferential review recognizes that “trial courts must deal first
hand with the parties and the discovery process.”25
¶24 We hold that the district court’s order was an abuse of
discretion because it lacked an evidentiary basis. It was
improper for the district court to dismiss the plaintiffs’ claims
absent a factual finding that plaintiffs’ failures to procure the
autopsies were willful. The willfulness requirement cannot be
satisfied by showing mere prejudice. Rather, there must be
evidence that the noncompliance was the product of willful
failure.
A. The District Court’s Dismissal Lacked an Evidentiary Basis
Because the District Court Made No Factual Findings as to
Willfulness, Bad Faith, or Fault
¶25 Sanctions are warranted when “(1) the party’s behavior
was willful; (2) the party has acted in bad faith; (3) the court
can attribute some fault to the party; or (4) the party has
engaged in persistent dilatory tactics tending to frustrate the
judicial process.”26
¶26 In this case, the district court did not make the
threshold factual finding as to whether plaintiffs’ failures to
procure autopsies were the result of willfulness, bad faith,
fault or persistent dilatory tactics on the part of Mrs.
Kilpatrick and Mrs. Kirkham.

27 768 P.2d 950, 962 (Utah Ct. App. 1989) (quoting Texas
Extrusion Corp. v. Palmer, Palmer & Coffee, 836 F.2d 217, 221
(5th Cir. 1988)).
No. 20060887, 20070156 12
¶27 In the Kilpatrick case, the district court implied
fault simply because the CMO required an autopsy, Mrs. Kilpatrick
failed to procure one, and her failure prejudiced defendants.
This reasoning is illustrated by one of the trial judge’s
comments at the hearing: “I think I have an understanding of the
issues. It’s not complicated. CMO said autopsy. There was no
autopsy, motion to dismiss. Is that your motion?” In dismissing
Bullough, the district court did not make any factual inquiry
into the willfulness of Mrs. Kilpatrick’s failure. Notably,
there is unchallenged evidence that Mrs. Kilpatrick’s failure may
not have been willful because when she cremated Mr. Kilpatrick,
she was unaware of either the autopsy requirement or the fact
that Mr. Kilpatrick had signed an agreement to have an autopsy
performed. Her affidavit states, “I was unaware that James
signed an authorization consenting to an autopsy. He did not
inform me of his wish to have an autopsy.”
¶28 Similarly, in Mrs. Kirkham’s case, the district court’s
minute entry made no finding of willfulness, bad faith, fault or
dilatory tactics. The district court merely said that “[a]fter
reviewing the record in this matter, the Court is persuaded
[that] dismissal of this action for failure to comply with the
autopsy requirement is appropriate.” The only evidence in the
record, however, is Mrs. Kirkham’s affidavit, in which she
testifies that her failure to procure an autopsy was inadvertent,
not willful. Her affidavit states, “The failure to perform an
autopsy . . . was not due to any purposeful violation of the
agreement with our attorneys, but instead was the result of the
fact that our family was grieving and was ill-prepared for [Mr.
Kirkham’s] sudden death.” She explained that Mr. Kirkham’s
“illness progressed extremely rapidly, and the expediency of his
death took our family by surprise.” She also explained that
“[a]lthough I had authorized an autopsy four months prior, at the
time of my husband’s death, I was very distraught and did not
recall the agreement until after he was buried.”
¶29 A failure to make factual findings regarding
willfulness is not always grounds for reversal. In Amica Mutual
Insurance Co. v. Schettler, the court of appeals held that the
district court’s failure to make a specific finding of
willfulness, bad faith, or fault “is not grounds for reversal if
‘a full understanding of the issues on appeal can nevertheless be
determined by the appellate court.’”27 In Schettler, the court
of appeals upheld the district court’s dismissal of a case

28 Id.
29 Societe Internationale Pour Participations Industrielles
et Commerciales, S. A. v. Rogers, 357 U.S. 197, 209 (1958).
30 Id. at 212.
31 Morton, 938 P.2d at 274 (emphasis added) (citations and
internal quotation marks omitted).
32 See, e.g., Nephi City v. Hansen, 779 P.2d 673, 675 (Utah
1989) (“But where general terms follow specific ones, the rules
of construction, including noscitur a sociis, ‘it is known from
(continued...)
13 No. 20060887, 20070156
despite the absence of a finding of willfulness where the record
“clearly demonstrate[d] a pattern of aggravated misconduct in the
form of willful and deliberate disobedience of discovery orders,
fabricated testimony, and attempted witness tampering.”28
¶30 In contrast, the record in this case does not
demonstrate willful disobedience of the CMO. The district
court’s opinion is devoid of any discussion demonstrating either
a pattern of misconduct or any willful or deliberate disobedience
of the court’s discovery orders.
B. The Fault Requirement Cannot Be Satisfied by Mere
Noncompliance Absent Any Additional Evidence of Willful Behavior
¶31 “[T]here are constitutional limitations upon the power
of the courts . . . to dismiss an action without affording a
party the opportunity for a hearing on the merits of his
cause.”29 The Supreme Court has held that rule 37 of the
Federal Rules of Civil Procedure “should not be construed to
authorize dismissal . . . when it has been established that
failure to comply has been due to inability, and not to
willfulness, bad faith, or any fault of petitioner.”30
¶32 Defendants focus on the language in our cases stating
that sanctions will be upheld on a showing of “willfulness, bad
faith, or fault, or persistent dilatory tactics”31 and argue that
failure to obtain an autopsy demonstrates fault. We reject this
strict liability approach.
¶33 The strict liability interpretation of “fault” ignores
the principle that a general term included within a list of more
specific terms should be given a meaning that is analogous to the
other terms within the list.32 In this list, willfulness, bad

(...continued)
its associates,’ and ejusdem generis, ‘of the same kind,’ require
that the general terms be given a meaning that is restricted to a
sense analogous to the preceding specific terms.”).
33 M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 872
(10th Cir. 1987) (alteration in original) (internal quotation
marks omitted).
34 Osguthorpe, 892 P.2d at 8 (quoting Schettler, 768 P.2d at
961).
35 Id. at 7.
36 Id. at 8.
37 768 P.2d at 962.
No. 20060887, 20070156 14
faith, and persistent dilatory tactics all involve intentional
behavior. Thus, the meaning of “fault” should not be interpreted
to include unintentional behavior.
¶34 This approach is consistent with case law that requires
intentional behavior in order to satisfy the fault requirement
when the sanction imposed is dismissal or a default judgment. As
the Tenth Circuit has explained, “Because a default judgment is a
harsh sanction, due process requires that failure is a sufficient
ground only when it is the result of willfulness, bad faith, or
[some] fault of petitioner rather than inability to comply.”33
While this standard does not require wrongful intent, “willful
failure” is “‘any intentional failure as distinguished from
involuntary noncompliance.’”34
¶35 In cases meriting sanctions, there is often a
consistent pattern of behavior disregarding discovery
requirements or court orders, as well as evidence that the
sanctioned party is on notice that its pattern of behavior will
result in sanctions if it continues. For example, in Osguthorpe,
the district court found that Osguthorpe had received “numerous
notices, motions, and orders” from the court and the opposing
party during sixteen months of delay.35 Moreover, Osguthorpe was
on notice that this pattern would result in sanctions because he
had received, and failed to respond to, a motion to compel and a
motion to enter default as a discovery sanction.36 In Schettler,
the district court explained that the record “clearly
demonstrates a pattern of aggravated misconduct in the form of
willful and deliberate disobedience of discovery orders,
fabricated testimony, and witness tampering.”37 Moreover, the
opposing party had filed a motion for sanctions for client and

38 Id. at 954-55.
39 684 P.2d at 1261.
40 2000 UT App 75, ¶ 3, 999 P.2d 588.
41 938 P.2d at 272-73.
42 915 P.2d 508, 512, 515 (Utah Ct. App. 1996).
43 Id. at 511-12.
44 2003 UT App 152, ¶¶ 36-37, 71 P.3d 601.
15 No. 20060887, 20070156
attorney misconduct and a motion to compel, and the court had
entered an order--to which Schettler did not respond--requesting
a more thorough response to the motions.38 In Schamanek, the
sanctioned party refused to respond to requests for admission,
refused to produce documents, refused to answer deposition
questions, and continued this pattern of refusal after the court
entered an order compelling discovery.39 In Hales v. Oldroyd,
over the course of about three and one-half years, the sanctioned
party failed to respond to two sets of interrogatories for
several months, failed to return medical release forms, failed to
respond to two separate motions to compel, failed to respond to
an order to compel and sanctions for the costs of the motions to
compel, and failed to respond to a motion to dismiss as a
discovery sanction.40 In Morton, the sanctioned party requested
continuances twice, thereby delaying the trial for a year, failed
to respond to interrogatories, failed to respond to a motion to
compel or face dismissal, and failed to provide a timely response
to a court order threatening dismissal if no response was
received by a certain date.41 In Marshall v. Marshall, the
plaintiff listed thirteen instances of the defendant’s failure to
provide discovery documents, as well as other instances where the
defendant failed to comply with court discovery orders, such as
hiding $180,000 from the court over the course of two years,
while claiming that he could not afford alimony and child support
payments.42 The defendant was on notice that this behavior could
result in default because the plaintiff submitted two motions,
six months apart, requesting that he be defaulted.43
¶36 Finally, our case law resists sanctioning a party whose
noncompliance is due to someone else’s failure. For example, in
Depew v. Sullivan, a client failed to provide tax returns in
satisfaction of a discovery request despite a court order
compelling a response.44 The district court ordered sanctions
against the client and the attorney. The court of appeals
remanded the sanctions against the attorney for a factual finding

45 Id. ¶ 37 n.14.
46 Id.
47 834 F.2d at 870.
48 Id.
49 Id. at 873.
No. 20060887, 20070156 16
as to whether the attorney was actually to blame for the
discovery violation.45 The court of appeals explained, “We
believe that [a sanction] is unjust when it is imposed against a
person who had absolutely no fault for the discovery violation at
issue . . . .”46
¶37 Similarly, in M.E.N. Co., the federal district court
dismissed the case under rule 37 of the Federal Rules of Civil
Procedure.47 The defendants-appellants had failed to provide
discovery or appear for noticed depositions, failed to obey a
court order to appear for depositions, failed to file a pretrial
memorandum, and failed to pay sanctions to the other party.48
The defendants-appellants challenged the dismissal of their case
by blaming their attorneys for the failure, arguing that their
attorneys never notified them of their discovery obligations.
The Tenth Circuit confirmed that the clients’ knowledge was
integral to imposing sanctions by remanding for factual findings
as to whether the clients knew about their discovery obligations
in order to determine whether their conduct satisfied the
“willful noncompliance standard.”49
¶38 The willfulness requirement gives us particular concern
in this case, where plaintiffs’ failures to comply with the CMO
may have been the result of inadequate communication between
plaintiffs’ attorneys and their clients. The circumstances
surrounding an autopsy differ substantially from the
circumstances surrounding a failure to produce tax returns or
attend a deposition. In the Kilpatrick case, the party who
signed the autopsy agreement was dead and incapable of reminding
his survivors about the agreement. In Mrs. Kirkham’s case, her
affidavit states that the surprise and grief accompanying her
husband’s death caused her to forget about obtaining an autopsy.
While we do not suggest that bereavement is an excuse for failure
to comply with court orders, it would be unjust to ignore the
reality of grief and surprise in determining whether the failure
to procure an autopsy was willful. Careful counsel would be sure
to avoid this situation by preparing their clients for this
event--underscoring and frequently reminding their clients about
the importance of an autopsy upon the death of the plaintiff.

50 Counsel’s performance before this court, however, makes
us wonder whether such communication occurred. On the morning of
oral argument, counsel did not arrive. Despite several phone
calls from the court to counsel’s office, we did not receive an
explanation for the failure to appear until two days later, when
we received a letter referencing the wrong case number and
assuring “this Honorable Court that [the] non-appearance was an
honest mistake” that should be blamed on a “recently hired
paralegal” for failing to schedule the hearing on the correct
calendar. Moreover, the apology was not signed by any of the
lawyers whose names appeared on the briefs.
51 Menzies v. Galetka, 2006 UT 81, ¶ 76, 150 P.3d 480; see
also Peters v. Pine Meadow Ranch Home Ass’n, 2007 UT 2, ¶1, 151
P.3d 962 (striking briefs for counsel’s unfounded accusations of
judicial impropriety and declining to reach the merits on
certiorari review as sanction for counsel’s misconduct).
52 M.E.N. Co., 834 F.2d at 873 (internal quotation marks
omitted).
53 See Peters, 2007 UT 2, ¶ 20 (acknowledging that “the
egregiousness of counsel’s conduct has led to sanctions that have
directly caused a detrimental result for his clients” and
recognizing that even in cases where sanctions are not imposed,
unprofessionalism “often will nevertheless diminish [a lawyer’s]
effectiveness”).
54 Societe Internationale, 357 U.S. at 212-13 (acknowledging
(continued...)
17 No. 20060887, 20070156
This is particularly true in the case of a firm like Brayton
Purcel, which holds itself out as an expert in asbestos
litigation.50
¶39 We are not blind to the conceptual tension presented by
application of the willful noncompliance standard in this case.
We recognize that “a party voluntarily chooses [his or] her
attorney and therefore is generally bound by the acts or
omissions of his or her attorney.”51 But, where discovery
sanctions are concerned, “if the fault lies with the attorneys,
that is where the impact of the sanction should be lodged.”52
Moreover, even in the absence of a direct sanction against a
client, the truth of the matter is that an attorney’s failure
will typically impact the client.53 For example, even in cases
where the failure to procure an autopsy is inadvertent, the only
fair way to address the missing evidence is to direct the fact-
finder that the defendants are entitled to a favorable inference
in place of the missing evidence.54 This remedy will serve the

54 (...continued)
that in the absence of complete discovery, the district court
would be justified in drawing unfavorable inferences as to the
missing evidence).
55 See Nat’l Hockey League v. Metro. Hockey Club Inc., 427
U.S. 639, 643 (1976) (“[S]anctions . . . must be available to the
district court in appropriate cases, not merely to penalize those
whose conduct may be deemed to warrant such a sanction, but to
deter those who might be tempted to such conduct in the absence
of such a deterrent.”).
No. 20060887, 20070156 18
dual purpose of mitigating any prejudice experienced by the
defendants and providing a sufficient deterrent to others who may
be tempted to purposely destroy important evidence.55 Indeed, in
some cases, an unfavorable inference may, as a practical matter,
preclude the plaintiff from pursuing his claims against the
defendants.
¶40 In summary, while the plaintiffs may have to live with
the consequences of their attorneys’ failures, the trial court
erred in dismissing plaintiffs’ claims as a sanction for their
failures to obtain autopsies, absent a factual determination that
the failures were due to willful, rather than unintentional,
noncompliance with the CMO.
IV. DID THE DISTRICT COURT WRONGFULLY DEPRIVE MR. KILPATRICK’S
HEIRS OF THEIR CONSTITUTIONAL RIGHT TO A WRONGFUL DEATH SUIT?
¶41 Finally, the parties disagree as to whether the
district court’s dismissal of Mrs. Kilpatrick’s claims could
preclude Mr. Kilpatrick’s heirs from bringing a wrongful death
claim. Because we reverse, we do not reach this issue.
CONCLUSION
¶42 In conclusion, we have jurisdiction over the Kilpatrick
case because the notice of appeal was timely and it sufficiently
conveyed an intent to appeal the dismissal of BNSF. We reverse
the dismissal of both the Kilpatrick and the Kirkham cases.
---
¶43 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Judge Orme concur with Justice Parrish’s
opinion.

19 No. 20060887, 20070156
¶44 Justice Nehring does not participate herein; Court of
Appeals Judge Gregory K. Orme sat.