Winn v. McKinlay

2025 UT App 16

THE UTAH COURT OF APPEALS

HOLLY WINN AND STEVE WINN,
Appellants,
v.
RODRICK D. MCKINLAY AND
ROCKY MOUNTAIN ASSOCIATED PHYSICIANS,
Appellees.

Opinion
No. 20221016-CA
Filed February 6, 2025

Third District Court, Salt Lake Department
The Honorable Laura Scott
No. 170902137

G. Eric Nielson and Todd Wahlquist,
Attorneys for Appellants
Troy L. Booher, Beth E. Kennedy, Lashel Shaw,
Stuart H. Schultz, Michael J. Miller, and Karmen
Schmid, Attorneys for Appellees

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1 Dr. Rodrick D. McKinlay performed bariatric surgery on
Holly Winn, who subsequently suffered a pulmonary embolism.
Holly and her husband (the Winns) sued McKinlay and Rocky
Mountain Associated Physicians (Rocky Mountain) for
negligence. During his deposition and in a response to a request
for admission, McKinlay stated that a recommendation from
Holly’s pulmonologist (Pulmonologist) for Holly to be prescribed
anticoagulants following surgery had been placed in Holly’s
insurance file rather than in her separate patient file and that
McKinlay had not, therefore, seen the recommendation before
Winn v. McKinlay

performing Holly’s surgery. At trial, however, McKinlay testified
to a different set of facts, saying instead that for each patient,
Rocky Mountain maintained a patient file containing all of the
patient’s documents and that, per his custom and practice, he
would have looked through Holly’s patient file and seen the
recommendation before surgery. The jury ultimately rejected the
Winns’ claims and found in favor of McKinlay and Rocky
Mountain (collectively, Defendants).

¶2 The Winns moved for a new trial, arguing that Defendants’
counsel had orchestrated McKinlay’s change in testimony and
that this constituted grounds for a new trial under rule 59 of the
Utah Rules of Civil Procedure. The district court agreed that
Defendants’ actions constituted an irregularity and a surprise
under rule 59, but it found that the Winns were not prejudiced by
the conduct, so it denied the Winns’ motion. The Winns now
appeal, contending that they were prejudiced because if they had
been informed before trial that McKinlay planned to change his
testimony, they would have brought an informed consent claim
and likely received a verdict in their favor. Because this argument
was not presented to the district court, we conclude that it is
unpreserved.

¶3 The Winns also assert that the district court improperly
denied them the opportunity to cross-examine McKinlay about
the deaths of two of his prior patients that had been caused by
pulmonary embolisms. However, because the Winns never asked
the court to permit such questioning, the court did not commit the
asserted error. Accordingly, we affirm.

BACKGROUND

The Surgery and Pulmonary Embolism

¶4 In 2015, Holly decided to have bariatric surgery performed
by McKinlay. Previously, Holly had developed a pulmonary

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Winn v. McKinlay

embolism after having knee surgery. Accordingly, she met with
Pulmonologist in April 2015 to discuss risks and possible
treatment related to the bariatric surgery. Pulmonologist
recommended that, among other things, Holly be prescribed
anticoagulation medication after the surgery for a term of one to
two weeks. Pulmonologist gave Holly a copy of this
recommendation, and his office sent a copy to McKinlay’s clinic,
Rocky Mountain.

¶5 In August 2015, McKinlay performed bariatric surgery on
Holly and did not prescribe anticoagulants upon her discharge.
Thirteen days after the surgery, Holly was rushed to the hospital
by paramedics and did not have a pulse for approximately seven
minutes. It was determined that she had suffered a pulmonary
embolism. Holly has experienced lasting mental deficits because
of this episode, and she has not been able to drive, work, or live
independently.

The Winns’ Suit

¶6 The Winns sued Defendants, claiming negligence and
alleging, among other things, that Defendants had “[f]ailed to
properly evaluate [Holly’s] condition prior to discharge” and
“[f]ailed to treat [her] with proper anticoagulation [medication]
after discharge.”

Discovery

¶7 The Winns deposed McKinlay in October 2017. During the
deposition, McKinlay testified that he “didn’t see Pulmonologist’s
recommendation at the time of [Holly’s] surgery.” He explained,

[W]e receive a lot of documentation from physicians
that are in support of a patient undergoing the
operation, and they go into an insurance file to then
allow the patient to go forward with the surgery. . . .

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Winn v. McKinlay

I didn’t have access to his recommendations at the
time that I saw her.

He stated that there were two different files—an insurance file,
which he did not typically look at, and a patient file—and
responded to the question, “[I]t’s your testimony that
Pulmonologist’s recommendation never went into the patient file,
correct?” with, “Correct.” He also declared that if he had seen
Pulmonologist’s recommendation, he “would have probably
called [Pulmonologist] to talk about it and discussed [his own]
concerns about bleeding and [Pulmonologist’s] concerns about
clot.”

¶8 The Winns later amended their complaint to add another
allegation of negligence—this one solely against Rocky
Mountain—based on McKinlay’s deposition testimony “mak[ing]
clear that [Pulmonologist] gave a copy of his recommendation to
[Rocky Mountain] and that an employee negligently filed the
recommendation in an insurance file instead of in [Holly’s]
medical record.”

¶9 In June 2018, the Winns served requests for admission on
McKinlay. Request for Admission No. 3 stated, “Admit that prior
to [Holly’s] surgical procedure on August 14, 2015, you personally
received a copy of [Pulmonologist’s] recommendation regarding
perioperative anticoagulation . . . .” McKinlay denied this request.

¶10 The Winns also deposed a Rocky Mountain staff member
who confirmed that the office kept “an insurance file that [was]
separate from the medical record.” The Winns prepared for trial
assuming this version of the facts.

Motions in Limine

¶11 In September 2021, Defendants filed a motion in limine
seeking exclusion of, among other things, evidence related to

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Winn v. McKinlay

“other lawsuits or events involving” Defendants. The Winns
responded by saying,

[The Winns] acknowledge that evidence of prior
lawsuits or similar events [is] not generally
admissible to show breach of [the standard of] care.
Nonetheless, [the Winns] reserve the right to
introduce evidence of Defendants’ prior lawsuits or
other acts if Defendants open the door by implying
that [they] are widely respected, always careful, or
otherwise attempt to bolster [their] image.

The court granted the motion in limine as to evidence of other
lawsuits or events, but it stated, “Nonetheless, the [c]ourt
recognizes that evidence of this nature may become admissible if
the trial proceeds in a manner that opens the door to this
evidence.”

¶12 The same month, the Winns filed their own motion in
limine, this one seeking to exclude “evidence of the consent for
surgery form and discussions with [the Winns] regarding the
risks of the procedure.” The Winns argued that they had not
brought a lack of informed consent claim and that evidence of this
nature was irrelevant to the elements of their negligence claims.
The court granted this motion.

Defendants’ Asserted Discovery Prior to Trial of Evidence That
Conflicted with Their Pretrial Disclosures

¶13 “[T]en days before trial, on October 26, 2021,” Defendants
assert on appeal, their trial counsel 1 “physically inspected [Rocky
Mountain’s] filing systems . . . and discovered [that
Pulmonologist’s] note was [actually] in the main [patient] file.”

1. Not all of Defendants’ appellate attorneys represented
Defendants at trial. Michael J. Miller and Karmen Schmid were
Defendants’ trial counsel.

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Winn v. McKinlay

Defendants explain that their trial counsel then “discussed the
matter with [McKinlay]” and that “[a]s a result, [McKinlay]
learned that [Pulmonologist’s] note would likely have been
included in the hard copy file he typically reviewed in
preparation for surgery.” According to Defendants, their trial
“[c]ounsel discussed with [McKinlay] the importance of
correcting his testimony at trial, and his legal and moral
obligation to testify truthfully.” Defendants did not, however,
inform the Winns or the court of this asserted discovery or of their
intent to present evidence at trial that contradicted the evidence
they disclosed during discovery.

McKinlay’s Testimony at Trial

¶14 The trial began on November 5, 2021, and was conducted
over twelve days between November 5 and November 23. On the
second day of trial, the Winns called McKinlay to testify. The
following exchange regarding Pulmonologist’s recommendation
took place between McKinlay and counsel for the Winns:

Q. Who is responsible for the fact that you didn’t
review [Pulmonologist’s recommendation] before
the surgery?

A. I don’t have an independent recollection of
reviewing this note, but I think it’s likely that I
would have reviewed it to say that she was cleared
for bariatric surgery.

Q. Doctor, you have—you didn’t read this note
before the surgery, did you?

A. I did not have an independent recollection of
reading this note.

Q. Does that mean you read it or you didn’t read it?

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Winn v. McKinlay

A. That’s what I don’t remember. I know that it’s my
custom and practice to review all the files that are in
the chart that are put in front of me when I go to talk
to the patient. So given that it is my custom and
practice, it’s likely that I at least reviewed it, but I
don’t have an independent recollection of reading it.

Q. Is that what you told me in your deposition?

A. I told you that I didn’t read it because I did not
have a recollection of having read it.

Q. Forgive me, Doctor. I’m going to take your
deposition out of my brief case. It’s your testimony
that you think you looked at this recommendation
or you can’t remember?

A. I can’t remember, but based on my custom and
practice, it’s likely that I would have reviewed it.

The Winns’ counsel then pressed the point, asking McKinlay,
“You didn’t say to me four years ago that you ordinarily would
have looked at it and that it would have been your custom and
practice to look at it. That’s not what you said four years ago;
correct?” McKinlay conceded, “It’s not what I said four years
ago.”

¶15 After additional questioning regarding the difference
between his deposition testimony and his testimony at trial and
whether he had seen Pulmonologist’s recommendation before the
surgery, McKinlay further acknowledged that at the time of trial
he did not have “an independent recollection” of having seen the
recommendation. And when asked if “it would be pure
speculation” for him to assume that he saw the recommendation,
McKinlay replied, “Yes.”

20221016-CA 7 2025 UT App 16
Winn v. McKinlay

¶16 The Winns’ counsel also asked, “Did you ever . . . call
[Pulmonologist] to ask him what he meant by his
recommendation to give blood thinners until the patient was one
hundred percent ambulatory (likely 7 to 14 days)?” McKinlay
responded, “I made my decision on how to treat Holly based on
my interview with her, my discussion with her. And, no, I didn’t
call [Pulmonologist] about that.” The Winns’ counsel then asked
McKinlay the following question, or one similar to it, several
times: “[I]t would be fair to say, sir, that if you [had] told Holly
that you weren’t going to follow the recommendation of the
pulmonologist, Holly would have had a couple of choices;
correct? Number one, get a different surgeon.” McKinlay
responded to these questions by saying that he “[thought] Holly
always [had] choices” and that “[s]he [was] always free to seek a
different surgeon.” When the Winns’ counsel again asked a
similar question, the court called the attorneys to a sidebar and
said:

I’m really concerned about this line of questioning
given the ruling that I . . . made on the informed
consent. . . . This was not an informed consent case.
This line of questioning is making it sound like it’s
an informed consent case if [information was] not
provided which would have impacted her choice of
proceeding with the surgery[] [or] proceeding with
the different surgeon[.] [A]nd you’re welcome to
continue. I just want to be very clear [that] if it starts
to look like an informed consent issue, then there
may be a revisiting of my ruling upon the informed
consent.

The Winns’ counsel then said he would reorient his questions.

¶17 Defendants’ attorney later asked McKinlay, “[A]t the time
of discharge, what is your decision-making at that point for Holly

20221016-CA 8 2025 UT App 16
Winn v. McKinlay

. . . whether to send her home with blood thinners or not? Is there
a decision you make there?” McKinlay responded,

Yes. There’s a decision that using the regimen based
on my clinical experience with patients like Holly
and many others who have undergone this surgery
that the regimen that we use . . . does significantly
reduce risk and is indicated to help them reduce the
risk of pulmonary embolism and that I don’t choose
them to add risk by putting people on blood
thinners after the time of surgery.

Defendants’ counsel followed up by asking, “Why? What’s the
purpose of this? Why do you do it this way?” McKinlay
responded, “So a lot does have to do with experience . . . . [A]nd
so having seen other patients bleed after discharge . . . , I felt it was
in her best interest [to] not prescribe blood thinners.”

Trial Testimony About Other Deaths

¶18 One of the Winns’ experts (Expert)—a bariatric surgeon—
later testified. On cross-examination, Defendants’ counsel
engaged in the following exchange with Expert:

Q. And you’re saying the risk of a [deep vein
thrombosis 2] is more important than the risk of
bleeding; is that right?

2. “Deep vein thrombosis . . . occurs when a
blood clot (thrombus) forms in one or more of the deep
veins in the body, usually in the legs.” Deep vein
thrombosis (DVT), Mayo Clinic, https://www.mayoclinic.org/dise
ases-conditions/deep-vein-thrombosis/symptoms-causes/syc-
20352557 [https://perma.cc/YY2V-M7TB]. Such clots “can break
loose” and “travel through the bloodstream and get stuck in the
lungs, blocking blood flow (pulmonary embolism).” Id.

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Winn v. McKinlay

A. In Holly Winn’s case for sure.

Q. And—but the risk of bleeding is not zero. You
have established that; correct?

A. Right.

Q. So if she had bled to death, for example, from
postoperative bleeding, then that’s not a breach of
the standard of care . . . ?

A. Well, again, that’s extremely unlikely as I
mentioned before with bleeding. It’s very rare that
that results in a fatal event. I believe in his
deposition [McKinlay] says he’s never had any
deaths due to bleeding but actually has had two
deaths due to blood clots, so that illustrates a point
that we have—

Defendants’ counsel then objected, telling the court in a sidebar
that Expert’s reference to McKinlay having two prior patients
who died due to blood clots was “grounds for a mistrial.” The
Winns’ counsel responded that “McKinlay opened the door to
that by talking about his own experience.” The court said that it
would address Defendants’ request for a mistrial after they
“finish[ed] up for [the day],” and it advised the Winns’ counsel to
caution Expert to “only answer questions that are being asked.”

¶19 The next day, Defendants filed a written motion for a
mistrial, and the court heard oral argument on the motion.
Defendants’ counsel asserted that McKinlay would be prejudiced
by the testimony. Counsel for the Winns, on the other hand,
argued against a mistrial, contending,

It was [McKinlay] who put the evidence in that he
considered other patients he had, who had bled
after being discharged, and that’s why he didn’t put

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Winn v. McKinlay

her on [a] blood thinner. So for [Expert] to then come
in and say, well, he’s also had people die from
[pulmonary embolisms], in the context of analyzing
that risk, the door had been opened.

The court denied the motion for a mistrial and said,

I’m not saying the door is open that then allows the
[Winns] to continue along these lines of question,
but I recognize that with [Expert] it was not a
question elicited by counsel for the [Winns]. In fact,
it was in response to [Defendants’] question, and
there were certainly several times when [Expert]
went beyond and volunteered information.

¶20 When McKinlay testified a week later in Defendants’ case-
in-chief, the Winns did not attempt to question him about his
having had surgery patients die due to pulmonary embolisms.

The Jury’s Verdict

¶21 Ultimately, the jury found that McKinlay had not breached
the standard of care applicable to bariatric surgeons. And while it
did find that Rocky Mountain had “breached the standard of care
applicable to a medical clinic,” it determined that Holly had not
proved that Rocky Mountain’s breach caused her any harm.

The Winns’ Motion for a New Trial

¶22 The court entered judgment on the jury’s verdict in March
2022. In April 2022, the Winns filed a motion for a new trial under
rule 59 of the Utah Rules of Civil Procedure, specifically arguing
that the district court should grant a new trial due to “irregularity
in the proceedings . . . by which a party was prevented from
having a fair trial” and “accident or surprise that ordinary
prudence could not have guarded against.” Utah R. Civ. P.
59(a)(1), (3). The Winns identified as irregularities or surprises

20221016-CA 11 2025 UT App 16
Winn v. McKinlay

(1) the discrepancy between McKinlay’s trial testimony and the
version of facts he supplied during discovery and (2) “[t]he
[c]ourt’s ruling that barred [the Winns] from presenting evidence
of McKinlay’s personal history of two prior patients that had died
as the result of pulmonary embolism[s].” The Winns argued that
McKinlay’s change in testimony amounted to an ambush and that
McKinlay had violated his obligation under the Utah Rules of
Civil Procedure to supplement his discovery responses. The
Winns asserted that the change was not harmless because if they
had been informed ahead of time of McKinlay’s “second version”
of events, they would have conducted “half a dozen additional
depositions” to determine whether any of McKinlay’s staff had
ever seen him “read a patient’s entire paper file before surgery.”
As to the evidence of McKinlay’s other patients who died from
pulmonary embolisms, the Winns contended that “[b]ecause the
[c]ourt determined that [McKinlay’s] testimony had not opened
the door to allow [them] to question [McKinlay] about his
personal experience with two prior deaths caused by pulmonary
embolism[s], [they] were unable to effectively discredit
[McKinlay’s] testimony that he personally believed the risk of
bleeding was greater than the risk of a pulmonary embolism.” The
Winns argued that they should have been able to cross-examine
McKinlay about the deaths related to pulmonary embolisms.

¶23 The court denied the motion for a new trial. It stated its
agreement with the Winns that (1) McKinlay made it clear during
discovery that there were two separate files for each patient, one
of which McKinlay had not seen prior to the surgery, and
(2) “McKinlay and his counsel entered the courtroom on the first
day of trial fully prepared to present the jury with an entirely new
version of facts,” specifically, that all of a patient’s records were
kept in a single hard-copy file that McKinlay routinely reviewed
before surgery. The court noted that “[u]nfortunately, it is not that
unusual for a witness to change his testimony at trial” but that
what was “irregular in this case [was] the apparent active
involvement of counsel in that . . . change in testimony.” The court

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Winn v. McKinlay

further indicated that “[o]nce [McKinlay] ‘realized’ that [he] must
have personally reviewed [Pulmonologist’s] recommendation
because it was in the ‘hard copy paper file,’ he had an absolute
duty to supplement Response to Request No. 3” under rule 26 of
the Utah Rules of Civil Procedure. The court then continued,
“And while his obligation to correct his deposition testimony may
be less clear, [McKinlay’s] failure to take any steps to notify [the
Winns about the change] . . . looks an awful lot like an attempted
trial by ambush that the disclosure rules are designed to prevent.”
Accordingly, the court found both irregularity and surprise under
rule 59(a). 3

3. The court further noted that counsel for Defendants “also may
have breached their obligations under rule 3.3(b) of the Utah
Rules of Professional Conduct,” saying,
[T]he court shares [the Winns’] concerns that
[McKinlay’s] counsel may have either (1) learned
that [McKinlay’s] testimony under oath during his
deposition was not true but ignored their obligation
to amend Response to Request No. 3 and “take
remedial measures” under rule 3.3(b); or
(2) knowingly assisted [McKinlay] in providing
false testimony at trial in violation of rule 3.3(b).
The court stated that it could not “simply ignore the ethical
implications of what may have happened in this case.” Therefore,
based on its “obligation to meaningfully address abuses of the
discovery process,” the court determined that “a sanction may be
appropriate,” such as “a monetary sanction in the form of an order
declining to award [McKinlay] certain costs that are otherwise
recoverable.” Accordingly, after the court denied the Winns’
motion for a new trial, the Winns filed a motion asking “that the
[c]ourt sanction [McKinlay] and his counsel by ordering them to
return the costs that were previously awarded to them in this
matter.” And the court granted this motion.

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Winn v. McKinlay

¶24 But the court did not end its analysis there. It stated that
“[i]t is not enough . . . for [the Winns] to show there was [a]
‘problem’ with the trial in the form of an irregularity or surprise”
but that “[t]he court must also determine that this ‘irregularity’ or
‘surprise’ prevented [the Winns] from having a fair trial.” The
court then said, “After carefully considering the entirety of the
trial . . . , the court concludes that these problems are not
significant enough to warrant a new trial.”

¶25 It explained,

[The Winns] learned about [McKinlay’s] new
version of events on the second day of trial[,] when
he testified. Despite their surprise, [the Winns] were
able to effectively cross examine [McKinlay] and
employ his inconsistent testimony to their full
advantage. Indeed, under skillful questioning by
counsel for [the Winns], [McKinlay] was forced to
admit that his testimony was inconsistent, that he
never mentioned this “hard copy file” or his
“custom and practice” in his deposition, . . . and that
he had no “independent recollection” of reviewing
[Pulmonologist’s] recommendation. Importantly,
[McKinlay] was forced to admit that “it would be
pure speculation” on his part to assume that he saw
[Pulmonologist’s] recommendation.

The next day, knowing they had been
ambushed with this new version of events, [the
Winns] nevertheless opposed [McKinlay’s] motion
for a mistrial. . . . And during [the] following ten
days of trial—which included two weekends—[the
Winns] did not seek any relief from the court
regarding [McKinlay’s] changed testimony. They
did not move to strike the testimony. They did not
request a continuance. They did not seek to recall

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any witness at [McKinlay’s] expense or otherwise.
They did not ask for any curative jury instructions.

Rather, it appears that counsel for [the
Winns], who are very experienced and successful
trial lawyers, believed the damage to [McKinlay’s]
credibility outweighed any irregularity or surprise.
And from the court’s vantage point, this was a
sound trial strategy. Given . . . the jury’s finding that
[Rocky Mountain] breached the standard of care, it
is reasonable to assume the jury did not believe
[McKinlay’s] new version of events or otherwise
find him credible on this issue.

(Footnotes omitted.) Ultimately, the court found that the Winns
“were not prejudiced by the alleged misconduct.”

¶26 As to two of McKinlay’s prior patients dying from
pulmonary embolisms, the court stated that the Winns “never
requested the opportunity to pursue this line of questioning.” It
explained that the Winns’ “assertion that ‘the door was opened’
was in response to [McKinlay’s] objection and in opposition to
[McKinlay’s] motion for a mistrial” following Expert’s testimony
on this topic. And it determined that the Winns could not
“transform their ‘the door was opened’ argument in opposition to
a mistrial motion into an affirmative but unspoken request to
explore this line of questioning when [McKinlay] testifie[d] a
week later in his case-in-chief.” Regarding the court’s statement
made in denying the mistrial motion that it was “not saying the
door is open that then allows the [Winns] to continue along these
lines of questions,” the court highlighted the context of its
statement, noting that it was made when evaluating whether
Expert’s “unresponsive statement” warranted a mistrial, not
when deciding the never-presented question of whether the
Winns should be able to question McKinlay about the deaths.
Thus, the court concluded, “it is not fair to say that the court

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‘denied’ [the Winns] the opportunity ‘to qualify, explain, or limit
the impact of [McKinlay’s] misleading testimony.’” Finally, the
court observed that the jury actually heard Expert’s testimony
that two of McKinlay’s prior patients died from pulmonary
embolisms, and that the court “did not strike [this testimony] or
instruct the jury to disregard it.”

¶27 The Winns now appeal.

ISSUES AND STANDARDS OF REVIEW

¶28 First, the Winns contend that the district court abused its
discretion by denying their motion for a new trial. “We apply an
abuse of discretion standard in reviewing a trial judge’s decision
to grant or deny a new trial . . . .” USA Power, LLC v. PacifiCorp,
2016 UT 20, ¶ 30, 372 P.3d 629 (cleaned up).

¶29 Second, the Winns assert that the district court “abused its
discretion in preventing [the] Winn[s] from inquiring into
McKinlay’s experience of having two prior patients die from a
pulmonary embolism.” “We grant a trial court broad discretion to
admit or exclude evidence and will disturb its ruling only for
abuse of discretion.” Daniels v. Gamma West Brachytherapy, LLC,
2009 UT 66, ¶ 32, 221 P.3d 256 (cleaned up).

ANALYSIS

I. Denial of the Winns’ Motion for a New Trial

¶30 The Winns contend that the district court abused its
discretion by denying their motion for a new trial. We disagree.

A. The Prejudice Requirement

¶31 The district court determined that the change in
McKinlay’s testimony regarding his presumably having seen

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Winn v. McKinlay

Pulmonologist’s recommendation prior to Holly’s surgery—
which change apparently involved the participation of
Defendants’ counsel—constituted both an irregularity and a
surprise under rule 59(a) of the Utah Rules of Civil Procedure. But
the court was correct that this determination alone was not a
sufficient basis upon which to order a new trial.

¶32 When a district court identifies an irregularity or surprise
in the proceedings, it must also find that the complaining party
was prejudiced by those circumstances before it orders a new trial.
See Peterson v. Hyundai Motor Co., 2021 UT App 128, ¶ 32, 502 P.3d
320 (“[A]fter 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.”), cert. denied, 509 P.3d 768 (Utah 2022). “Indeed, rule 59 is,
by its terms, ‘limited by Rule 61,’ the rule discussing harmless
error.” Id. (quoting Utah R. Civ. P. 59(a)); see generally Utah R. Civ.
P. 61 (requiring courts to “disregard any error or defect in the
proceeding which does not affect the substantial rights of
parties”).

¶33 The Winns argue that although the district court “is
granted deference in ruling on a motion for a new trial, when
attorney misconduct is involved[,] that deference should be
viewed more narrowly on appeal.” But even the cases the Winns
cite do not support an abandonment of the prejudice requirement
in situations where an irregularity or surprise is tied to attorney
misconduct. See Nelson v. Trujillo, 657 P.2d 730, 734 (Utah 1982)
(“The proper remedy for prejudicial attorney misconduct is to
order a new trial.” (emphasis added)), abrogated on other grounds
by Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, 513 P.3d 729;
Kearl v. Okelberry, 2010 UT App 197U, para. 11 (“The irregularity
must be such that either party was prevented from having a fair
trial. Attorney misconduct warranting a new trial must be real
and substantial and such as may reasonably be supposed would
affect the result.” (cleaned up)); Pope v. Babick, 178 Cal. Rptr. 3d

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42, 51 (Cal. Ct. App. 2014) (“But when attorney misconduct is at
issue, we must independently consider whether the misconduct
resulted in prejudice. Prejudice exists if it is reasonably probable
that the jury would have arrived at a verdict more favorable to the
moving party in the absence of the irregularity or error.”). Even
in a recent case involving an asserted irregularity based on
attorney misconduct—the intentional flouting of a court order—
we expressly analyzed whether the misconduct was prejudicial,
determined that it was not, and affirmed the outcome at trial. See
Ameritech College Holdings, LLC v. Aiken, 2025 UT App 6, ¶¶ 51‒60.
So here, the Winns were required to demonstrate prejudice to
warrant a new trial.

B. The Winns’ Failure to Preserve Their Prejudice Argument

¶34 After finding an irregularity and surprise, the district court
determined that the Winns were not prejudiced by this
circumstance. The Winns contend that they were prejudiced
because if they had known McKinlay’s trial version of events
prior to trial, they would have brought an informed consent claim
that likely would have succeeded. The Winns explain,

[I]f McKinlay had timely amended his deposition
testimony and/or his response to the admission
request, [the] Winn[s] would have amended [their]
complaint to include claims for lack of informed
consent. . . . Because it is undisputed that McKinlay
failed to have an informed consent conversation
with [Holly], it is almost certain the outcome of the
trial would have been different if the jury had been
answering the question of McKinlay’s negligence
based on an informed consent claim rather than a
claim of bad clinical judgment.

¶35 In response, Defendants contend that the Winns have not
preserved this argument because they did not raise it during trial
or in their motion for a new trial. We agree.

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Winn v. McKinlay

¶36 “Under our preservation rule, any issue brought on appeal
must be sufficiently raised to a level of consciousness before the
trial court such that the court has an opportunity to rule on it.”
State v. Centeno, 2023 UT 22, ¶ 54, 537 P.3d 232 (cleaned up).
Because the Winns did not present their informed consent theory
of prejudice to the district court, our preservation rule requires
that we decline to consider it unless an exception to the
preservation rule applies. See id. ¶ 57.

¶37 In an effort to avoid the preservation rule’s preclusion of
our consideration of their informed consent theory of prejudice,
the Winns argue (1) that the policies underlying the preservation
rule will not be served if we do not consider their informed
consent theory and, alternatively, (2) that we should apply the
exceptional circumstances exception to the preservation rule or
create a new exception to the preservation rule for instances of
attorney misconduct. We address these arguments in turn.

1. The policies underlying the preservation rule

¶38 The Winns contend that, notwithstanding their failure to
present their informed consent theory of prejudice to the district
court, we should still consider the theory because “the purposes
of the preservation rule [will not be] served” if we do not.

¶39 When determining whether an issue has been preserved
for appeal, both this court and our supreme court have
occasionally conducted a case-specific analysis based on the
policies underlying the preservation rule. See, e.g., Kell v. State,
2012 UT 25, ¶¶ 10‒12, 285 P.3d 1133; Patterson v. Patterson, 2011
UT 68, ¶¶ 10‒21, 266 P.3d 828; McKell v. McKell, 2024 UT App 72,
¶¶ 21‒30, 549 P.3d 654, cert. denied, 558 P.3d 89 (Utah 2024); State
v. Granere, 2024 UT App 1, ¶¶ 28‒32, 543 P.3d 177, cert. denied, 558
P.3d 87 (Utah 2024). However, such case-specific application of
those policies is not typically required. When it is clear that an
appellant is raising an entirely new legal theory on appeal, we
may simply apply the preservation rule and decline to address the

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Winn v. McKinlay

newly raised issue. See, e.g., Whittingham, LLC v. TNE Ltd. P’ship,
2024 UT 23, ¶¶ 54, 56‒65, 554 P.3d 924 (declining to review four
distinct legal theories raised for the first time on appeal, without
conducting an analysis based on the policies underlying the
preservation rule); Hillam v. Hillam, 2024 UT App 102, ¶¶ 34, 37,
554 P.3d 1137 (determining that the appellant’s theory on appeal
was “an issue, not an argument, and [that] it therefore needed to
be preserved below,” and “declin[ing] to consider” the theory
based solely on the fact that it had not been raised below). Only in
close cases might it be necessary for us to conduct case-specific
analyses based on the policies underlying the preservation rule.
See McKell, 2024 UT App 72, ¶ 30 (observing that where the appeal
presented a “close case[]” as to whether the appellant was
asserting “a new argument” in support of a preserved theory or “an
entirely distinct [and therefore unpreserved] legal theory,” it was
appropriate to “look at the underlying policies” to make that
determination (cleaned up)). Because the Winns’ informed
consent theory of prejudice is clearly a distinct legal theory that
was not raised below, the preservation rule requires us not to
consider that theory on appeal, regardless of any particularized
application of the policies underlying the rule.

¶40 Moreover, even if we were to deem this a close case and
base our preservation determination on a particularized
application of the policies underlying the preservation rule, we
would reach the same decision. In Patterson v. Patterson, 2011 UT
68, 266 P.3d 828, our supreme court indicated that “[t]he two
primary considerations underlying the [preservation] rule are
judicial economy and fairness.” Id. ¶ 15. Regarding judicial
economy, the court noted that “requiring a party to raise an issue
or argument in the trial court gives the trial court an opportunity
to address the claimed error, and if appropriate, correct it,” thus
“avoid[ing] unnecessary appeals and retrials.” Id. (cleaned up).
And regarding fairness, the court declared that “[i]t generally
would be unfair to reverse a district court for a reason presented
first on appeal” because “[u]nder our adversary system, the

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Winn v. McKinlay

responsibility for detecting error is on the party asserting it, not
on the court.” Id. ¶ 16. “Notions of fairness [also] dictate that a
party should be given an opportunity to address the alleged error
in the trial court.” Id. Moreover, “requiring preservation of an
issue prevents a party from avoiding the issue at trial for strategic
reasons only to raise the issue on appeal if the strategy fails.” Id.
(cleaned up). Specific application of these principles in this case
likewise compels the conclusion that the Winns did not preserve
the issue of whether the irregularity and surprise in this case
prejudiced them by forestalling their pursuit of an informed
consent claim.

¶41 As to judicial economy, not only did the Winns fail to
provide the district court with an opportunity to address whether
the irregularity and surprise prejudiced them in this way, but they
specifically steered around the issue of informed consent when
the court, noticing the direction of the Winns’ counsel’s questions
to McKinlay, said,

This line of questioning is making it sound like it’s
an informed consent case if [information was] not
provided which would have impacted her choice of
proceeding with the surgery[] [or] proceeding with
the different surgeon[.] [A]nd you’re welcome to
continue. I just want to be very clear [that] if it starts
to look like an informed consent issue, then there
may be a revisiting of my ruling upon the informed
consent.

Rather than grasp this opportunity to develop testimony on and
put before the district court the issue they now ask us to resolve,
the Winns decided to reorient their questions and avoid the issue
of informed consent. The Winns also did not raise the issue in

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Winn v. McKinlay

their post-trial motion.4 If the court had confronted this question
at either juncture—during trial or in the post-trial motion—and
ruled in the Winns’ favor, the Winns’ appeal would have been
avoided. 5

¶42 As to fairness, we acknowledge an equitable appeal to the
Winns’ argument that the traditional notion of what is fair to an
opponent in the preservation context—i.e., that the opponent be
given an opportunity in the district court to address an alleged
error arising at trial—may hold less weight when the opponent
has itself acted unfairly by engaging in an attorney-assisted
ambush. However, there are remedies for that unfairness that do

4. We are somewhat sympathetic to the difficulty the Winns point
to of responding during the “heat of battle” to irregularities and
surprises at trial. But the trial continued for ten days, with two
intervening weekends, after McKinlay’s surprise testimony. And
the Winns did not file their rule 59 motion until some five months
after the conclusion of the trial. Thus, the Winns had ample
opportunity to raise this issue outside the immediate heat of
battle.

5. The Winns assert that if they “had argued, and if the trial court
had agreed, that prejudice resulted from not having the
opportunity to assert a claim based on lack of informed consent,
the only difference in the proceedings would be the [parties’]
respective positions on appeal.” But we do not assume an
opponent’s potential appeal to be a foregone conclusion when
assessing a party’s actions related to judicial economy. Instead,
we ask whether the district court received a proper opportunity
to address the question and whether the party’s actions likely
caused unnecessary additional litigation. See Patterson v. Patterson,
2011 UT 68, ¶ 15, 266 P.3d 828. Regardless of what Defendants
may or may not have done if the Winns had raised this issue to
the district court, this appeal may have been avoided if the Winns
had raised the issue below.

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Winn v. McKinlay

not include abandonment of the preservation requirement.6 On
the other hand, the preservation rule is the sole mechanism for

6. Rule 26 of the Utah Rules of Civil Procedure dictates that “[i]f a
party learns that a disclosure or response 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).
This mandate applies to “responses given in a deposition.”
Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 21, 438
P.3d 25 (cleaned up), aff’d, 2020 UT 59, 472 P.3d 927. “If a party
fails to disclose or to supplement timely a disclosure or response
to discovery, that party may not use the undisclosed witness,
document, or material at any hearing or trial unless the failure is
harmless or the party shows good cause for the failure.” Utah R.
Civ. P. 26(d)(4).
In this case, the number and nature of the patient files Rocky
Mountain maintained for Holly was undeniably important. We
therefore agree with the district court that “[o]nce [McKinlay]
‘realized’ that [he] must have personally reviewed
[Pulmonologist’s] recommendation because it was in the ‘hard
copy paper file,’ he had an absolute duty to supplement Response
to Request No. 3.” See Peterson v. Hyundai Motor Co., 2021 UT App
128, ¶¶ 48–49, 502 P.3d 320 (concluding that “in the ebb and flow
of [the] particular case, [the plaintiffs’ expert’s] opinion about the
precise location of [a] pinch point was important enough to
trigger supplementation obligations” and that when the plaintiffs
learned “at least a week prior to trial” of the expert’s intent to
change his opinion, they had an “obligation to supplement their
expert disclosures . . . earlier than” “the night before [the expert’s]
scheduled trial testimony”), cert. denied, 509 P.3d 768 (Utah 2022).
McKinlay likewise had a duty to supplement his relevant
deposition testimony prior to trial. See id.; Arreguin-Leon, 2018 UT
App 225, ¶ 21. We cannot condone McKinlay’s failures to fulfill
these obligations, and we encourage parties facing such rule
(continued…)

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Winn v. McKinlay

preventing the unfairness of “a party . . . avoiding [an] issue at
trial for strategic reasons only to raise the issue on appeal if the
strategy fails.” Id. (cleaned up). Thus, notwithstanding the
ambush, the Winns were not absolved of their own
“responsibility for detecting error” and giving the district court
an opportunity to provide appropriate relief. Id.

¶43 As the district court noted, the Winns had ten days of trial
after their discovery of McKinlay’s change in testimony to raise
the issue, and during that time they “did not seek any relief from
the court regarding [McKinlay’s] changed testimony.” Instead, as
the district court explained, “[d]espite their surprise, [the Winns]
were able to effectively cross examine [McKinlay] and employ his
inconsistent testimony to their full advantage” by forcing him “to
admit that his testimony was inconsistent” and “that ‘it would be
pure speculation’ on his part to assume that he saw
[Pulmonologist’s] recommendation.” As the district court further
noted, “it appears that counsel for [the Winns], who are very
experienced and successful trial lawyers, believed the damage to
[McKinlay’s] credibility outweighed any irregularity or surprise.”
We agree that the Winns’ trial counsel applied a sound—and at
least somewhat successful—strategy, since the jury’s finding that
Rocky Mountain breached the applicable standard of care
suggests that the jury did not find McKinlay credible on this issue.
To now allow the Winns to try a different strategy because they
did not obtain the result they desired would frustrate the
purposes of our preservation rule.

¶44 For the foregoing reasons, we conclude that the Winns’
informed consent theory of prejudice was not preserved.

violations to seek appropriate relief, including the application of
rule 26(d)(4).

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Winn v. McKinlay

2. Exceptions to the preservation requirement

¶45 The Winns next contend that we should apply the
exceptional circumstances exception to the preservation rule or
create a new exception for instances of attorney misconduct.

¶46 Our supreme court has stated, “Our preservation
requirement is self-imposed and is therefore one of prudence
rather than jurisdiction. Consequently, we exercise wide
discretion when deciding whether to entertain or reject matters
that are first raised on appeal. We have exercised this discretion
to recognize some limited exceptions to our general preservation
rule.” Patterson, 2011 UT 68, ¶ 13. The exceptional circumstances
doctrine is one of those exceptions. Id. We apply this doctrine “to
reach an unpreserved issue where a rare procedural anomaly has
either prevented an appellant from preserving an issue or excuses
a failure to do so.” State v. Hararah, 2023 UT App 77, ¶ 22, 534 P.3d
1129 (cleaned up), cert. denied, 540 P.3d 79 (Utah 2023).

¶47 Even assuming arguendo that the circumstances here
qualify as a rare procedural anomaly, the exceptional
circumstances exception does not apply. The Winns were not
prevented from raising this issue to the district court. And they
have not presented us with reasoning as to why they should be
excused for their failure to do so, other than their assertion that
“McKinlay (and his insurer . . . ), [should not be allowed to] get
away with the very type of ambush the rules were designed to
prevent.” But excusing the Winns’ failure to raise this issue to the
district court would ignore the strategic choices they made,
particularly in light of the length of the trial and their rule 59
motion. We are unprepared to accept a sweeping rule that
changed testimony offered with the knowledge or
encouragement of counsel automatically qualifies as an
exceptional circumstance that obviates the need to comply with
our preservation requirement. We therefore decline to apply the
exceptional circumstances exception here.

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Winn v. McKinlay

¶48 The Winns further contend that we should recognize a new
exception to preservation, saying, “An additional exception
should be recognized when attorney misconduct is involved.”
They explain, “When an attorney is involved in breaking the rules
and walks into the courtroom on the first day of trial with designs
on presenting a previously undisclosed new version of facts for
the jury to consider, fairness is impossible and prejudice is
unavoidable.”

¶49 The Winns have not briefed the question of whether this
court, as opposed to the supreme court, has the authority to create
new exceptions to the preservation rule. Regardless, we are not
persuaded that we should create the proposed new exception
here. The Winns’ stated rationale for doing so—that “[w]hen an
attorney is involved in breaking the rules . . . , fairness is
impossible and prejudice is unavoidable”—is squarely at odds
with our cases that do not presume prejudice but, instead, require
a showing of prejudice to merit a new trial based on attorney
misconduct. See supra ¶ 33. To adopt the exception the Winns
request, we would have to implicitly or explicitly overrule those
cases—something we are not prepared to do on the briefing
before us, which includes no analysis regarding “the
persuasiveness of [that] authority” and “how firmly [it] has
become established in the law since it was handed down.”
Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553; see generally id.
(setting forth the factors that a Utah appellate court must consider
before overruling precedent).

¶50 In sum, because the Winns have not satisfied the
preservation requirement, we decline to consider the informed
consent theory of prejudice that they raise for the first time on

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Winn v. McKinlay

appeal. We therefore affirm the district court’s denial of the
Winns’ motion for a new trial. 7

II. Evidence of Two Deaths Related to Pulmonary Embolisms

¶51 The Winns also argue that the district court abused its
discretion by “[p]reventing” them from asking McKinlay about
two prior patients of his who had died from pulmonary
embolisms. But we agree with the district court that it never
denied such a request.

¶52 Before trial, the Winns did not request that they be allowed
to present such evidence. Instead, they agreed for purposes of
Defendants’ motion in limine that “evidence of prior lawsuits or

7. The Winns’ appellate challenge to the denial of their motion for
a new trial also includes the assertion that if McKinlay had timely
supplemented his discovery responses, the Winns “would have
engaged in [additional] discovery about McKinlay’s ‘custom and
practice’ and disproved the notion that he actually read and chose
to disregard the recommendation of [Pulmonologist].” In other
words, the Winns cursorily assert on appeal the additional
discovery theory of prejudice that they relied on in their rule 59
motion. But that theory is arguably unpreserved as well. See State
v. Fullerton, 2018 UT 49, ¶ 49 n.15, 428 P.3d 1052 (“[A]n objection
that could have been raised at trial cannot be preserved in a post-
trial motion.”). And even if it was preserved, we are unpersuaded
by it. The district court thoughtfully explained its reasoning in
response to that argument, see supra ¶ 25, and the Winns mount
no attack on the court’s reasoning. Therefore, to the extent that the
Winns rely on appeal on their additional discovery theory of
prejudice, their argument falls short. See Big Game Forever v.
Peterson, 2024 UT App 78, ¶ 19, 551 P.3d 411 (“An appellant who
does not meaningfully engage with the district court’s reasoning
falls short of demonstrating any error on the part of the district
court.” (cleaned up)).

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Winn v. McKinlay

similar events [is] not generally admissible to show breach of [the
standard of] care,” though they “reserve[d] the right to introduce
evidence of Defendants’ prior lawsuits or other acts if Defendants
open[ed] the door by implying that [they] are widely respected,
always careful, or [if they] otherwise attempt[ed] to bolster [their]
image.” Likewise, the court granted the motion but “recognize[d]
that evidence of this nature [might] become admissible if the trial
proceed[ed] in a manner that open[ed] the door to this evidence.”

¶53 While the Winns asserted during trial that McKinlay had
opened the door, they did not request an opportunity to question
McKinlay on this topic. We agree with the district court that the
Winns’ assertion at trial “that ‘the door was opened’ was in
response to [McKinlay’s] objection and in opposition to
[McKinlay’s] motion for a mistrial” and that the Winns “cannot
transform their ‘the door was opened’ argument in opposition to
a mistrial motion into an affirmative but unspoken request to
explore this line of questioning when [McKinlay] testifie[d] a
week later in his case-in-chief.” Likewise, the district court’s
statement in response—namely, that it was “not saying the door
[was] open that then allow[ed] the [Winns] to continue along
these lines of question”—was related to Expert’s testimony and
whether it constituted grounds for a mistrial. It was not a ruling
on a request that the Winns be allowed to question McKinlay
about the same subject. 8 That request was never presented to the

8. The Winns argue that “[b]ecause McKinlay was allowed to
mislead the jury into believing his experience included prior
patients that had post-operative bleeds, but not any deaths from
a pulmonary embolism, confidence in the jury’s verdict is greatly
undermined when the truth would have removed this false
impression.” We note, however, as did the district court, that the
jury actually heard evidence that two of McKinlay’s prior patients
had died from pulmonary embolisms and that this testimony was
not stricken or subject to a curative instruction. Thus, even had
(continued…)

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Winn v. McKinlay

court. Because the Winns never asked the district court to permit
them to question McKinlay about patients who had died due to
pulmonary embolisms, the court did not commit the error the
Winns assert.

CONCLUSION

¶54 The district court did not abuse its discretion in denying
the Winns’ motion for a new trial, and the court did not deny the
Winns an opportunity to cross-examine McKinlay about patients
who died due to pulmonary embolisms. We therefore affirm.

there been an error, the Winns would have difficulty
demonstrating that they were prejudiced by it.

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