Holmes v. Smith

2026 UT App 89

THE UTAH COURT OF APPEALS

EMILY S. HOLMES,
Appellant,
v.
CATHERINE B. SMITH,
Appellee.

Opinion
No. 20240613-CA
Filed June 4, 2026

Second District Court, Farmington Department
The Honorable Jennifer L. Valencia
No. 210700347

Shaun L Peck and Loren K. Peck,
Attorneys for Appellant
Kumen L. Taylor, Jeffery J. Owens, and
Emily L. Rutter, Attorneys for Appellee

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

CHRISTIANSEN FORSTER, Judge:

¶1 Emily S. Holmes appeals the jury’s verdict in a lawsuit
arising from an automobile accident in which she sought damages
for economic and noneconomic injuries allegedly caused by
Catherine B. Smith. Holmes challenges one jury instruction and
several evidentiary rulings. We conclude that Holmes did not
preserve her challenge to the jury instruction but that her
evidentiary challenges have merit. We therefore reverse the
judgment and remand for a new trial.
Holmes v. Smith

BACKGROUND

The Accident

¶2 The claims in this case arise from an automobile accident
that occurred in October 2017 in West Point, Utah. While traveling
through a construction zone, Holmes stopped her vehicle, and
Smith’s vehicle struck it from behind, causing damage to both
vehicles.

¶3 At the time of the accident, Holmes, then thirty-six years
old, was unaware that she had scoliosis because she had never
experienced any symptoms related to the condition. Right after
the accident, Holmes was diagnosed with sprain/strain injuries in
her cervical and lumbar spine. She received treatment for those
injuries from November 2017 through May 2018, followed by a
gap until August 2018, when she again sought treatment for pain.

¶4 Holmes filed this action against Smith, alleging that the car
accident was due to Smith’s negligent operation of her vehicle,
that Holmes had suffered injury due to the accident, and that
Holmes was entitled to recover the economic and noneconomic
damages related to that injury. Smith answered, asserting several
affirmative defenses, including that she was “not liable for any
injuries claimed by [Holmes] that pre-existed and were not caused
by this incident.” Smith contended that the treatment beginning
in August 2018 differed from the earlier treatment Holmes had
received after the accident and was attributable to her pre-existing
scoliosis, as well as pre-existing degenerative conditions that
affected her spine.

The Pretrial Motions

¶5 Prior to trial, the parties filed several motions in limine
addressing the admissibility of certain expert testimony and
related evidence. Smith moved to exclude the testimony of

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Holmes’s life care planner, Kourtney Layton. As relevant here,
Smith challenged Layton’s recommendation for an ergonomic
evaluation and the purchase of a VariDesk for Holmes. Smith
argued that because Holmes’s employer had already provided a
VariDesk and there was a high probability that her employer may
have completed an ergonomic assessment, there was “no need to
provide what [Holmes’s] employer [was] already supplying.”
Smith also argued that Layton’s cost calculations were unreliable
because (1) despite the fact that the desk had a five-year warranty,
Layton claimed that the desk manufacturer recommended
replacement every three years and (2) Layton recommended
replacing the desk for the next twenty-five years, yet Layton also
calculated a work-life expectancy for Holmes of only about
fourteen years. Smith also asserted that Layton’s cost calculations
for vocational rehabilitation counseling were similarly flawed and
should be excluded because Layton included amounts for
vocational rehabilitation counseling at ages forty-five, fifty, and
sixty, despite the fact that according to Layton’s calculated work-
life expectancy, Holmes would no longer be working at age sixty.

¶6 Holmes opposed the motion, arguing generally that
Layton’s testimony satisfied the threshold for admissibility under
the rules of evidence. As to the VariDesk issue, Holmes argued
that her employer providing a desk implicated the collateral
source rule and did not make Layton’s related testimony
inadmissible. Holmes further argued that “all that [was] required
for admissibility [was] a threshold showing of the indicia of
reliability” and that because Layton’s opinions were “supported
by facts and data,” her testimony was admissible. As to the
alleged inconsistencies within Layton’s calculations, Holmes
asserted that Smith was likely to argue at trial that Holmes’s
work-life expectancy was longer than the term Layton had
calculated, and that if the jury agreed with Smith, additional years
of workplace accommodations and vocational rehabilitation
counseling would be necessary. Holmes also argued that the

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inconsistencies Smith had introduced regarding the warranty and
longevity of the VariDesk went “to the weight of [Layton’s]
testimony and not its admissibility.”

¶7 The trial court determined that Layton was qualified to
offer expert testimony in life care planning and vocational
rehabilitation under rule 702 of the Utah Rules of Evidence. The
court nevertheless excluded certain portions of Layton’s
testimony. First, it excluded testimony regarding an ergonomic
evaluation and therapeutic equipment, including the VariDesk.
The court relied on the fact that “this issue ha[d] been resolved via
the accommodation made by [Holmes’s] employer” and
concluded, “Allowing [Holmes] to recover damages necessary to
purchase something currently being provided to her without cost
would result in a fundamentally unfair result.” Additionally, the
court determined that testimony on these matters should be
excluded because there were “inconsistencies and outright
contradictions related to the recommendation and other sections
of the report related to the work-life expectancy of [Holmes]” that
were “of such an egregious nature to render the recommendation
unreliable and inadmissible under” rules 702 and 403 of the Utah
Rules of Evidence. As to vocational rehabilitation counseling, the
court limited Layton’s testimony to recommendations consistent
with her conclusions regarding Holmes’s remaining work-life
expectancy, reasoning that without such a limitation, the evidence
would confuse the jury.

¶8 Holmes in turn moved to exclude evidence of her pre-
existing conditions, arguing that Smith had produced “no expert
testimony allocating [Holmes’s] current symptoms between or
among pre-existing conditions.” Smith responded that the report
of her expert, Dr. Snook, “was very clear about what conditions
were caused by the auto accident and which ones were caused by
[Holmes’s] pre-existing conditions.” The trial court agreed that
Dr. Snook’s testimony provided “a nonarbitrary basis to
determine the extent of harm that was caused by the accident at

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Holmes v. Smith

issue.” And the court suggested that “to the extent that an
apportionment instruction [was] ultimately requested at the
conclusion of trial,” such an instruction would be appropriate.

¶9 Holmes further moved to exclude Dr. Snook’s opinion that
the collision had been “low speed, low impact.” She argued that
“even if Dr. Snook looked over the crash photographs or damage
estimates, [he was] not qualified to calculate vehicle speeds, and
employed no reliable or accepted methodology to do so.” Holmes
also noted that Dr. Snook had admitted in his deposition that he
had no training “in calculating or estimating impact speeds from
photographs of accidents,” that he was “not a biomechanics
person,” and that he had no “scientific methodology” for
determining impact speed but simply relied on “looking at the
photos and having the crash described to” him.

¶10 The trial court denied Holmes’s motion. It reasoned,
“[Holmes’s] own testimony and statements support the inference
that it was a ‘low speed, low impact’ accident, as well as the
photos [from] which Dr. Snook observed . . . the minimal damage
to both vehicles. Thus, an adequate factual basis exists to support
Dr. Snook’s conclusion that it was a ‘low speed, low impact’
accident . . . .” The court further concluded that Dr. Snook’s
opinion was a general description rather than a technical
reconstruction requiring specialized expertise.

The Trial

¶11 At trial, Smith focused on Holmes’s pre-existing
conditions. Smith argued that those conditions, rather than the
accident, accounted for the conditions of which Holmes
complained after August 2018. Smith’s theory was that the
accident caused Holmes only temporary injury that “resolve[d]
well” within a few months. Smith further argued that the
symptoms Holmes experienced beginning approximately three
months later were caused by “a completely different condition”

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attributable to previously undiagnosed scoliosis and “two
degenerative [discs] in her neck.”

¶12 Smith sought admission of Holmes’s medical records at
trial. She did not, however, provide a certification for the records
or call a records custodian at trial to provide the foundation
required under the business records exception to the hearsay rule.
See Utah R. Evid. 803(6). Instead, Smith attempted to lay
foundation for the admission of the medical records through
Holmes’s medical expert, Dr. Sonnenberg. Dr. Sonnenberg
testified that he had “relied upon” the medical records, that he
“assume[d]” the records were electronically stored when they
were signed, and that they “appear[ed] to be” made in the regular
course of business.

¶13 Holmes objected, arguing that Dr. Sonnenberg’s testimony
did not satisfy the foundational requirements for admission of the
medical records under the business records exception. Holmes
thereafter elicited testimony from Dr. Sonnenberg demonstrating
his lack of knowledge regarding the creation and maintenance of
the records. Dr. Sonnenberg acknowledged that he did not create
the records, did not know when the individual entries were made,
could not identify who created them, and had no knowledge of
the procedures used to compile or store them. He further testified
that multiple individuals may contribute to such records and that
practices vary across providers. Despite this testimony, the court
admitted the medical records. It determined that the foundational
requirements for the business records exception had been met
because nothing in the records suggested they were not records
“of a regularly conducted activity,” because Dr. Sonnenberg
relied on the records, and because Holmes had previously
stipulated to the authenticity of the records.

¶14 The following day, Holmes called Layton to testify. When
Holmes’s counsel began to question Layton about Holmes’s
expected work life after the crash, Smith objected, asserting that

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such testimony had been excluded by the trial court’s prior ruling.
Holmes responded that this was “the first time” the methodology
and data underlying the work-life calculation “ha[d] ever been
addressed,” explaining that the prior ruling had excluded certain
other testimony as inconsistent with Layton’s work-life
assessment but that there were no “inconsistencies in the work-
life opinion itself.” The trial court disagreed, relying on its prior
findings of “inconsistencies and outright contradictions” that
“render[ed] the recommendations unreliable and inadmissible,”
and stating that the prior ruling precluded testimony regarding
work-life expectancy. Layton was therefore not permitted to offer
her opinion on work-life expectancy.

¶15 Later, when Dr. Snook testified, he characterized the
collision as “very low impact,” consistent with the court’s prior
ruling permitting such testimony. He based this opinion on his
review of photographs of the vehicles and Holmes’s deposition
testimony. Dr. Snook testified that the photographs showed only
minor damage and suggested a low-impact, glancing collision
rather than a direct rear-end impact. He further testified that
Holmes’s description of the accident, including her uncertainty
about vehicle movement and her recollection that the occupants
were merely “rattled,” was not indicative of a high-impact
collision.

¶16 At the conclusion of trial, the parties reviewed the jury
instructions with the court. The parties’ discussion of jury
instructions focused on whether the evidence supported an
instruction on aggravation of a pre-existing condition. Holmes
had submitted a proposed instruction explaining her damage
theory: that a plaintiff may recover for aggravation of a pre-
existing condition and that the defendant bears the burden to
apportion any damages attributable to unaggravated pre-existing
conditions. On the final day of trial, however, Smith argued that
this instruction should not be given because there was no
evidence of aggravation.

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¶17 The trial court declined to give Holmes’s requested
instruction. The court referenced its earlier ruling as to pre-
existing conditions and explained, “I was waiting for Dr. Snook’s
testimony to see if that is how he would testify. His testimony did
not appear to me to warrant [this instruction].” The court
explained, “We don’t have an individual who has a preexisting
injury with a doctor who then says, ‘It was exacerbated as a result
of this injury’ and then allocating the percent of fault between the
two injuries. We have Dr. Snook’s testimony, which is the
testimony at issue on this issue, saying that—he testified
negatively, that it didn’t exacerbate it.”

¶18 After some additional discussion, Smith argued as follows:

The problem with this instruction is it talks about an
aggravation of a preexisting condition. They have
no evidence to put in front of the jury that there was
an aggravation. Dr. Snook is the only one that
testified about it. He said, “No, it was not an
aggravation. It didn’t start until long after the
accident.”

The court concurred, stating, “That was my feeling as well . . . . I
don’t know what expert opinion you would have to hang your
hat on the preexisting condition.” Holmes argued that Dr. Snook’s
testimony supported giving the instruction, but she did not argue
that a separate instruction on burden of proof was required absent
evidence of aggravation, nor did she propose a modified
instruction omitting the aggravation language.

¶19 The jury returned a verdict finding that Smith was
negligent and that her negligence caused injury to Holmes. The
jury awarded both economic and noneconomic damages, totaling
more than $60,000. Holmes now appeals.

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Holmes v. Smith

ISSUES AND STANDARDS OF REVIEW

¶20 Holmes first argues that the jury instructions were infirm
because they failed to inform the jury that Smith bore the burden
of proof on the affirmative defense of pre-existing conditions.
Appellate review of jury instructions depends on the nature of the
issue presented. “A district court generally has discretion in
deciding how it will instruct a jury at trial, as jury instructions
require no particular form so long as they accurately convey the
law. . . . Jury instruction issues that fall within the district court’s
discretion will, of course, be subject to an abuse of discretion
standard.” State v. Hunt, 2025 UT 54, ¶ 45, 582 P.3d 772 (quotation
simplified). But when a challenge concerns whether the
instructions correctly state the law, the issue presents a question
of law reviewed for correctness. See id. ¶ 46. Because Holmes’s
claim concerns the legal adequacy of the instructions, we review
it for correctness. See id.

¶21 Holmes also challenges several of the trial court’s
evidentiary rulings. She argues that the trial court (1) misapplied
the collateral source rule in excluding evidence of
accommodations provided by Holmes’s employer; (2) admitted
Holmes’s medical records without a proper foundation under
rule 803(6) of the Utah Rules of Evidence; (3) improperly excluded
Layton’s testimony regarding workplace accommodations,
vocational rehabilitation, and work-life expectancy; and
(4) improperly allowed Dr. Snook to offer opinions regarding the
speed and impact of the collision. Two standards of review apply
to these issues. “The first standard of review, correctness, applies
to the legal questions underlying the admissibility of evidence.”
State v. Griffin, 2016 UT 33, ¶ 14, 384 P.3d 186 (quotation
simplified). This includes the question of whether the trial court
correctly applied the collateral source rule. See Mahana v. Onyx
Acceptance Corp., 2004 UT 59, ¶ 35, 96 P.3d 893. “The second
standard of review, abuse of discretion, applies to the trial court’s
decision to admit or exclude evidence, to the trial court’s

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determination that there was a proper foundation for the
admission of evidence, and to the trial court’s determination
regarding the admissibility of expert testimony.” Griffin, 2016 UT
33, ¶ 14 (quotation simplified).

ANALYSIS

I. Jury Instruction Regarding Pre-existing Conditions

¶22 Holmes first argues that the jury instructions were
deficient because they did not inform the jury that Smith bore the
burden of proof on apportionment related to pre-existing
conditions. Holmes contends that she alerted the trial court “that
a pre-existing condition instruction was consistent with the
evidence and Utah law” but that the court nonetheless “refused
to instruct the jury regarding pre-existing conditions, how to
properly apportion damages, or who bore the burden to prove an
apportionment.” We do not read the record quite so broadly.

¶23 As an initial matter, we agree that jury instructions “must
inform the jury which party bears the burden of proof on which
claims and defenses.” Peterson v. Hyundai Motor Co., 2021 UT App
128, ¶ 56, 502 P.3d 320. We also agree that the legal principles
reflected in Holmes’s proposed instruction are consistent with
Utah law. See Model Utah Jury Instructions 2d CV2018 (2013),
https://legacy.utcourts.gov/muji/?cat=1 [https://perma.cc/425K-
QYBE]. But the trial court did not suggest otherwise. The record
shows that the court declined to give Holmes’s proposed
instruction because it agreed with Smith that there was no
evidentiary basis for an instruction addressing aggravation of a
pre-existing condition, that is, that no evidence had been
presented to the jury that the accident may have aggravated
Holmes’s pre-existing conditions. See Harris v. ShopKo Stores, Inc.,
2011 UT App 329, ¶ 15, 263 P.3d 1184 (“All parties are entitled to
have their theories of the case submitted to the jury in the court’s

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instructions, provided there is competent evidence to support
them.” (quotation simplified)), aff’d but criticized on other grounds,
2013 UT 34, 308 P.3d 449. In context, the court’s ruling reflects a
determination about the sufficiency of the evidence to support the
particular instruction proposed by Holmes, not a broader refusal
to instruct the jury on pre-existing conditions or burden of proof.

¶24 The broader argument that Holmes now advances on
appeal—that the jury instructions were infirm because they failed
to instruct the jury as to Smith’s burden of proof on pre-existing
conditions—was not specifically raised before the trial court. The
record does not show that Holmes, either during the discussion
regarding the proposed instruction or at any other time, advised
the court that the jury should be instructed on the burden of proof
as it related to pre-existing conditions generally and that without
such instruction, the jury instructions as a whole would be
incorrect. Nor did Holmes suggest, as she does on appeal, that the
court could simply delete the sentences regarding aggravation
and retain the remaining parts of the proposed instruction that
were applicable to this case. Because Holmes did not adequately
raise this issue before the trial court, the issue has not been
properly preserved for appeal, and we do not consider it further.
See Cove at Little Valley Homeowners Ass’n v. Traverse Ridge Special
Service Dist., 2022 UT 23, ¶ 23, 513 P.3d 658 (“An appellant must
properly preserve an issue in the district court before it will be
reviewed on appeal. An issue is preserved for appeal when it has
been presented to the district court in such a way that the court
has an opportunity to rule on it. To provide the court with this
opportunity, the issue must be specifically raised and must be
supported by evidence and relevant legal authority.” (quotation
simplified)).

II. Third-Party Benefits

¶25 Holmes next argues that the trial court erred in excluding
evidence of workplace accommodations on the ground that the

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issue had already “been resolved via the accommodation made
by [her] employer” and that “[a]llowing [Holmes] to recover
damages necessary to purchase something currently being
provided to her without cost would result in a fundamentally
unfair result.” Holmes contends that this ruling misapplied the
collateral source rule. We agree.

¶26 The collateral source rule “prevents a plaintiff’s recovery
from being reduced by proof that the plaintiff has received or will
receive compensation or indemnity for the loss from an
independent collateral source.” Gardner v. Norman, 2025 UT 47,
¶ 34, 582 P.3d 717 (quotation simplified). The rule reflects the
principle that a tortfeasor should not benefit from payments or
benefits provided by third parties. See id. Thus, even if Holmes’s
employer provided workplace accommodations at no cost to her,
such a benefit does not reduce the damages recoverable from
Smith. 1

¶27 The trial court’s concern that Holmes might recover
damages for costs she did not personally incur does not justify
departure from this rule. “The [collateral source] rule applies even
in those cases where it results in a windfall to the plaintiff based
on the premise that the plaintiff victim, rather than the defendant
tortfeasor, should be the beneficiary of any windfall.” Mahana v.
Onyx Acceptance Corp., 2004 UT 59, ¶ 37, 96 P.3d 893; accord
Gardner, 2025 UT 47, ¶ 34. The court therefore erred in excluding
the evidence on this basis.

1. Furthermore, a conclusion that all workplace accommodation
costs were “resolved” by the actions of Holmes’s employer fails
to account for the real possibilities that (1) Holmes may at some
point change jobs and begin working for an employer unwilling
to provide the same accommodations or (2) Holmes’s current
employer may at some point cease to provide these
accommodations.

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¶28 In response, Smith does not defend the trial court’s
application of the collateral source rule. Instead, she offers
alternative grounds for affirmance.

¶29 First, Smith argues that the trial court properly excluded
the evidence of workplace accommodations based on the court’s
alternative reasoning that Layton’s recommendations were
“unreliable and inadmissible” under rules 702 and 403 of the Utah
Rules of Evidence. Specifically, Smith points to Layton’s
recommendation that a VariDesk be replaced every three years
for twenty-five years despite her estimate that Holmes’s work-life
expectancy was approximately fourteen years, as well as
conflicting information regarding the product’s warranty. 2 But
these points do not render Layton’s opinions inadmissible.
Differences between replacement intervals, warranty periods,
and projected work-life expectancy bear on the weight of the
testimony, not its admissibility. These points provide ample
opportunity for cross-examination, but they are not a basis for
exclusion. Moreover, as discussed below, Layton’s inclusion of
calculations beyond her estimated work-life expectancy reflects
an effort to account for the possibility that the jury might adopt a
different work-life figure. See infra ¶¶ 40–41. This likewise does
not support exclusion.

¶30 Second, Smith contends that the exclusion may
alternatively be affirmed because the claimed workplace
accommodation damages were not specifically pleaded as special
damages under rule 9(h) of the Utah Rules of Civil Procedure. See
generally Utah R. Civ. P. 9(h) (“If an item of special damage is
claimed, it must be specifically stated.”). Although we may affirm

2. Smith also asserts that the warranty on a VariDesk has now
increased to a lifetime warranty. But we do not see how such an
after-the-fact change would in any way inform the issue as to
whether the court erred when it determined that exclusion here
was appropriate, and we therefore do not further address it.

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on any ground apparent on the record, see Bailey v. Bayles, 2002 UT
58, ¶ 10, 52 P.3d 1158, that principle does not apply here. The
parties dispute whether such damages were required to be
pleaded with specificity, and even assuming they were (and we
are dubious of this proposition), the record does not support
affirmance on that basis.

¶31 Under our rules, trial courts are to freely permit
amendments to pleadings when justice requires. See Utah R. Civ.
P. 15 (providing that a trial court “should freely give permission”
to a pretrial amendment of the pleadings “when justice requires”
and that even during trial “[t]he court should freely permit an
amendment when doing so will aid in presenting the merits and
the objecting party fails to satisfy the court that the evidence
would prejudice that party’s action or defense on the merits”).
Here, Holmes disclosed workplace accommodation damages in
her initial disclosures, and Smith deposed Layton regarding them.
Under these circumstances, any pleading deficiency would not
warrant exclusion because the issue of Holmes’s damages was
disclosed and litigated and the court could have permitted
amendment under rule 15 or treated the pleadings as amended to
conform to the evidence. See id.; see also Cohn v. J. C. Penney Co.,
537 P.2d 306, 311 (Utah 1975) (explaining that the sufficiency of
pleading special damages turns on whether the defendant was
adequately apprised of the claimed damages). The asserted
pleading deficiency is therefore not an alternative basis for
affirmance apparent on this record.

III. Holmes’s Medical Records

¶32 We next turn to the admission of Holmes’s medical
records. When medical records are offered “to prove the truth of
the matter asserted” therein, the records constitute hearsay. See
Utah R. Evid. 801(c); see also Community Ass’n Underwriters of Am.,
Inc. v. Queensboro Flooring Corp., No. 10-CV-01559, 2016 WL
1728381, at *8 (M.D. Pa. Apr. 29, 2016) (“[I]t is clear that hospital

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records, being a compilation of written accounts of acts,
narrations, and observations of various individuals, which are
offered to prove the truth of the matters asserted therein,
constitute hearsay.”); Ceaser v. Marshalltown Med. & Surgical
Center, No. 18-2101, 2020 WL 1310299, at *3 (Iowa Ct. App. Mar.
18, 2020) (“Medical records offered to prove the truth of the
matters asserted are hearsay.”). Such records are therefore
admissible at trial only if they fall within an exception to the rule
against hearsay. See Utah R. Evid. 802. Holmes argues that the trial
court erred in admitting her medical records under the business
records exception to the hearsay rule because Smith failed to
establish the required foundation for their admission. 3 We agree.

3. Statements within medical records that originate from a patient
can constitute an additional level of hearsay. See United States v.
Blechman, 657 F.3d 1052, 1065 (10th Cir. 2011) (“Double hearsay in
the context of a business record exists when the record is prepared
by an employee with information supplied by another person. . . .
Accordingly, the general rule is that any information provided by
an outsider to the business preparing the record must itself fall
within a hearsay exception to be admissible.” (quotation
simplified)); Ceaser v. Marshalltown Med. & Surgical Center, No. 18-
2101, 2020 WL 1310299, at *3 (Iowa Ct. App. Mar. 18, 2020) (stating
that when medical records “include statements allegedly made by
others,” those statements are “double hearsay” and are
“inadmissible unless [they] independently fall[] under one of the
recognized exceptions to the hearsay rule” (quotation
simplified)). But patient statements recorded by others are
generally covered by other established hearsay exceptions. See
Utah R. Evid. 803(3) (hearsay exception for statements of a
declarant’s then-existing mental, emotional, or physical
condition); id. R. 803(4) (hearsay exception for statements a
declarant made for medical diagnosis or treatment). Holmes’s
(continued…)

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¶33 Rule 803(6), the business records exception to the rule
against hearsay, permits admission of “[a] record of an act, event,
condition, opinion, or diagnosis” only if several conditions are
met, including that the record was made at or near the time by
someone with knowledge, kept in the course of a regularly
conducted activity, and made as part of a regular practice. See id.
R. 803(6)(A)–(C). Critically, these conditions must be established
“by the testimony of the custodian or another qualified witness,
or by a certification.” Id. R. 803(6)(D). Although the trial court was
correct that the foundational witness need not be “the custodian
of the records,” the witness must be qualified to testify that the
record was made under the required conditions.

¶34 Here, Dr. Sonnenberg’s testimony did not establish the
requisite foundation. Dr. Sonnenberg acknowledged that he did
not know who created the records, when the individual entries
were made, or whether they were created at the time of the events
recorded. He further testified that he only “assume[d]” the
records were kept in the ordinary course of business and had no
knowledge of how the records were stored or if others may have
added to them after they were signed. In fact, at one point he
stated plainly, “I have no knowledge of this record other than
what sits before me, no.” Thus, this testimony does not satisfy the
requirements of rule 803(6).

¶35 The trial court relied on three considerations in admitting
the records: that they appeared to be records of a regularly
conducted activity, that Dr. Sonnenberg relied on them, and that
Holmes stipulated to their authenticity. But none of these is
sufficient for foundation. The business records exception allowing
the admission of hearsay does not turn on the apparent regularity
of a document; rather, the exception requires either testimony of

argument does not concern a second level of hearsay but, instead,
focuses simply on the admissibility of the records themselves
under the business records exception.

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a qualified witness or certification establishing the conditions of
rule 803(6). See id. And just because Dr. Sonnenberg relied on the
records does not mean that he had any specific knowledge of the
conditions under which the records were created. See Belnap v.
Graham, 2016 UT App 14, ¶ 24, 366 P.3d 852 (finding no error in
the trial court’s determination that an expert’s testimony did not
meet the requirements of the business records exception where
the expert “laid a foundation to testify about what [the medical
providers’] regular practices should have been (if they followed
industry standards) but did not provide a foundation to testify
about what [the providers’] practices actually were”); cf. Utah R.
Evid. 703 (providing that an expert’s opinions may be based on
inadmissible evidence so long as “experts in the particular field
would reasonably rely on” that kind of evidence).

¶36 Finally, authenticity is distinct from admissibility under
the hearsay exceptions. See Hansen v. Heath, 852 P.2d 977, 981
(Utah 1993) (recognizing that the parties stipulated to the
authenticity of the medical records, but concluding that the
requirements of the business records exception still applied to
those medical records), superseded on other grounds by statute as
recognized in Lancer Ins. Co. v. Lake Shore Motor Coach Lines, Inc.,
2017 UT 8, 391 P.3d 218. Authenticity involves a showing “that the
item is what the proponent claims it is,” Utah R. Evid. 901(a),
whereas the hearsay exceptions focus on testimonial reliability,
see State v. Smith, 909 P.2d 236, 239 (Utah 1995) (“Exceptions to the
hearsay rule are based on factors that provide assurances of
testimonial reliability sufficient to dispense with the usual means
of purging testimony of error . . . .”). And it is entirely possible for
a party to agree that certain records are, indeed, a party’s medical
records, while at the same time contesting the reliability of those
records due to the conditions under which the records were
created.

¶37 Because Smith did not present testimony from a qualified
witness or certification establishing the requirements of rule

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Holmes v. Smith

803(6), the trial court exceeded its discretion in admitting the
medical records based upon Dr. Sonnenberg’s testimony.

IV. Layton’s Opinions Regarding Workplace Accommodations,
Vocational Rehabilitation, and Work-Life Expectancy

¶38 Holmes next argues that the trial court erred in excluding
Layton’s expert opinions regarding workplace accommodations,
vocational rehabilitation, and work-life expectancy. She contends
that Layton’s opinions were not internally inconsistent and that it
was appropriate for Layton to provide alternative calculations for
the jury to apply to its ultimate determination of Holmes’s work-
life expectancy. Holmes further argues that the trial court’s
concern that the evidence would “confuse the jury” did not justify
exclusion of the evidence under rule 403 of the Utah Rules of
Evidence. We agree as to each point.

¶39 Rule 702 of the Utah Rules of Evidence provides that
“[s]cientific, technical, or other specialized knowledge may serve
as the basis for expert testimony only if there is a threshold
showing that the principles or methods that are underlying in the
testimony (1) are reliable, (2) are based upon sufficient facts or
data, and (3) have been reliably applied to the facts.” Utah R. Evid.
702(b). The trial court did not identify any deficiencies in Layton’s
methodology or in the data underlying her opinions. Instead, it
excluded portions of her testimony based on perceived
inconsistencies within her conclusions, reasoning that those
inconsistencies rendered the opinions unreliable.

¶40 We are not persuaded that Layton’s opinions were
internally inconsistent, much less so inconsistent as to render
them inadmissible. The court relied on the fact that Layton
calculated a work-life expectancy of approximately fourteen years
while also providing cost projections for the VariDesk and the
vocational rehabilitation counseling extending beyond those
fourteen years. But those projections were presented as

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alternative calculations that the jury could apply depending on
the work-life expectancy it ultimately found. The various
calculations were clearly stated and contained sufficient
information that, should the jury decide on a longer work-life
projection, it would be able to understand which additional
vocational rehabilitation counseling would be required and what
the cost of the VariDesk would be for that longer timeframe.
Providing such ranges does not undermine reliability; after all,
such modeling is common in a life care planning and damages
analysis. Rather, providing these ranges reflects a permissible
effort to assist the jury in calculating damages under differing
factual assumptions.

¶41 Nor was exclusion warranted under rule 403. That rule
permits exclusion only when the probative value of the evidence
“is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Id. R. 403. The trial court determined that
Layton’s extended projections “would only serve to confuse the
jury.” But presenting alternative damages calculations tied to
different work-life assumptions does not create a substantial risk
of confusing the issues or misleading the jury. Juries are routinely
asked to evaluate competing evidence and perform calculations
based on alternative scenarios. On this record, the probative value
of Layton’s testimony was not substantially outweighed by any
danger identified in rule 403.

¶42 Smith argues that Holmes waived her challenge, at least as
to vocational rehabilitation, by failing to present testimony
regarding rehabilitation after the trial court had specifically stated
that such testimony would be allowed. We are not persuaded. The
trial court initially ruled that Layton could testify regarding
vocational rehabilitation “to the extent such recommendations
comport with her other employment-related recommendations
and conclusions regarding [Holmes’s] estimated remaining

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Holmes v. Smith

working years.” But the court later precluded Layton from
testifying about Holmes’s work-life expectancy altogether. In
light of these rulings, Holmes was left with testimony conditioned
on a foundation the court had removed. Under these
circumstances, Holmes’s decision not to present additional
testimony does not constitute waiver.

¶43 Accordingly, Holmes did not waive her argument as to
vocational rehabilitation and the trial court exceeded its discretion
in excluding Layton’s expert opinions under both rule 702 and
rule 403.

V. Dr. Snook’s Testimony Regarding Speed and Impact

¶44 Finally, Holmes argues that the trial court erred in allowing
Dr. Snook to testify that the collision was “low speed, low
impact.” The court reasoned that there was “an adequate factual
basis” for this conclusion and that it was “a relatively general
characterization in comparison to conclusions offered by an
accident reconstruction expert.” Holmes contends that this
testimony was improperly admitted under rules 701 and 702 of
the Utah Rules of Evidence. We agree.

¶45 “Lay opinion testimony, which is treated under rule 701, is
opinion or inference testimony not based on scientific, technical,
or other specialized knowledge. Expert testimony, which is
treated under rule 702, is opinion or fact testimony based on
scientific, technical, or other specialized knowledge.” 4 State v.

4. Lay fact testimony is a third type of testimony, and it need not
comply with either rule 701 or rule 702. See State v. Rothlisberger,
2006 UT 49, ¶ 16, 147 P.3d 1176. However, such testimony must
comply with “rule 602’s requirement that a witness have personal
knowledge of the matter about which he or she is testifying.” Id.
Because Dr. Snook clearly had no personal knowledge about the
(continued…)

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Holmes v. Smith

Rothlisberger, 2006 UT 49, ¶ 11, 147 P.3d 1176 (footnote omitted).
Thus, “any part of a witness’s testimony that is based upon
scientific, technical, or other specialized knowledge within the
scope of rule 702 is governed by the standards of rule 702.” Id. ¶ 25
(quotation simplified).

¶46 Here, the challenged testimony regarding the speed and
impact of the collision was offered by Dr. Snook as an expert and
drew conclusions about the nature of the collision based on
photographs and Holmes’s account of the accident. Indeed, Smith
acknowledges that Dr. Snook was not providing lay testimony.
The testimony must therefore satisfy rule 702.

¶47 But the trial court did not evaluate the challenged
testimony under rule 702, which requires assessing the reliability
of “the principles or methods” underlying the expert testimony.
Utah R. Evid. 702(b). Instead, the court determined that Dr.
Snook’s opinions as to collision speed and impact were admissible
because they were “a relatively general characterization” and
were supported by photographs and Holmes’s statements. But
that is not the inquiry rule 702 demands. The rule requires a
threshold showing that the expert’s opinion rests on reliable
principles or methods and that those principles have been reliably
applied to the facts. See id.

¶48 That showing was not made here. Although Dr. Snook is
qualified as an orthopedic surgeon, there was no showing that he
possesses expertise in accident reconstruction, biomechanics, or
any other discipline that would permit him to estimate the speed
or impact of a collision based on vehicle photographs or a
patient’s description of the accident. See id. R. 702(a) (“[A] witness
who is qualified as an expert by knowledge, skill, experience,

speed or impact of the collision, his testimony regarding this issue
would also not qualify for admission under this third category of
witness testimony.

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Holmes v. Smith

training, or education may testify in the form of an opinion or
otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue.” (emphasis added)). Nor was there
any testimony identifying a reliable methodology for drawing
such conclusions. Instead, his opinion rested on a visual
assessment of vehicle damage and general impressions about the
accident.

¶49 To be sure, a medical expert may rely on patient history
and other information in forming opinions about diagnosis and
causation. But that principle does not extend to offering
independent conclusions about the mechanics of a collision
without a reliable foundation. Here, the condition of the vehicles
and Holmes’s recollection of the event did not, without more,
provide a reliable basis for expert testimony about the speed or
impact of the collision by a medical expert.

¶50 Smith pushes back, arguing that Dr. Snook’s conclusions
regarding the speed and impact of the collision were supported
by the absence of acute injury indicators, such as no emergency
treatment after the accident or physical signs of trauma in an exam
several days later. But these considerations were not part of the
stated basis for the trial court’s admission of the testimony.
Moreover, also at trial, Dr. Snook’s conclusions regarding
collision speed and impact continued to be directly tied to the
post-accident pictures of the vehicles and to Holmes’s deposition
testimony, with counsel specifically asking, “And from these
photographs, what impressions did you have, if any, as to what
type of accident this was in terms of speed or impact?” and,
“[W]here [Holmes] testified she doesn’t recall whether the car
moved forward, . . . is that suggestive of a hard impact based on
your experience as an orthopedic surgeon dealing with these type
of injuries?” But these are not questions related to medical
causation; they ask for opinions about the speed or impact of the
collision itself.

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Holmes v. Smith

¶51 Because the testimony was admitted without the
foundational showing required by rule 702, the trial court
exceeded its discretion in allowing Dr. Snook to offer opinions
regarding the speed and impact of the collision.

CONCLUSION

¶52 Holmes did not preserve her challenge to the jury
instructions, so we do not address her related argument on
appeal. But we conclude that the trial court erred in multiple
respects, including its exclusion of evidence under the collateral
source rule, its admission of medical records without a proper
foundation under rule 803(6), its exclusion of Layton’s expert
testimony under rules 702 and 403, and its admission of Dr.
Snook’s testimony regarding the speed and impact of the collision
without the required showing under rule 702. These errors
materially affected the presentation of both liability and damages
at trial and are reasonably likely to have affected the jury’s
verdict.5 We therefore reverse the judgment and remand for a new
trial.

5. To sustain a reversal, we must determine that there is a
“reasonable likelihood” that error “altered the jury verdict.” State
v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86 (quotation simplified). This
determination involves a “counterfactual” analysis wherein we
consider “an alternative universe in which the trial went off
without the error.” Id. ¶ 42. Given the number and impact of the
errors involved here, we are confident there is a reasonable
likelihood that the verdict would have been different had the
errors not occurred.

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