Kuhar v. Thompson Manufacturing

2022 UT App 22

THE UTAH COURT OF APPEALS

NICHOLAS KUHAR AND JULIE KUHAR,
Appellants,
v.
THOMPSON MANUFACTURING INC. AND XYZ CORPORATIONS,
Appellees.

Opinion
No. 20200584-CA
Filed February 17, 2022

Third District Court, West Jordan Department
The Honorable Kristine Johnson
No. 190900751

Matthew Weng, Colin P. King, and Paul M.
Simmons, Attorneys for Appellants
Robert L. Janicki and Michael L. Ford, Attorneys
for Appellees

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and RYAN D. TENNEY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Nicholas and Julie Kuhar appeal the district court’s grant
of summary judgment in favor of Thompson Manufacturing Inc.
(Thompson) on grounds of issue preclusion. We reverse and
remand for further proceedings.

BACKGROUND

¶2 Nicholas Kuhar suffered serious injury when he fell
thirty-seven feet onto crushed concrete after his safety harness
system failed while he was cleaning rain gutters in New Jersey.
Kuhar v. Thompson Manufacturing

Kuhar v. Petzl Co. (Kuhar I), No. 16-0395, 2018 WL 7571319, at *1
(D.N.J. Nov. 27, 2018). The harness consisted of “three
component parts: a ‘micrograb,’ a bolt, and a rope.” Id. The
Kuhars sued several companies involved in the design,
manufacture, production, and distribution of the harness. These
included Thompson, which designed and manufactured the
micrograb, as well as the company that sold the micrograb and
the companies that manufactured and sold a bolt included in the
micrograb. Id. The Kuhars brought their lawsuit in federal court
in New Jersey, where the accident took place.

¶3 Thompson’s principal place of business is in Utah.
Thompson moved to dismiss the Kuhars’ complaint, at least as
stated against Thompson, on the ground that New Jersey lacked
personal jurisdiction over Thompson. The New Jersey federal
court granted the motion and dismissed Thompson from the
case.

¶4 Subsequently, the Kuhars filed the present action against
Thompson in Utah. In the meantime, the case in New Jersey
proceeded against the other defendants.

¶5 The Kuhars submitted an expert report in the New Jersey
case. The expert opined that the bolt failed as a result of two
design defects and a manufacturing defect and that an improper
rope was used with the micrograb kit. Id. at *2. Two of the other
defendants moved to strike the report. Id. They alleged that the
expert’s report was not sufficiently reliable to be admissible
under rule 702 of the Federal Rules of Evidence and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Kuhar I,
2018 WL 7571319, at *2. The New Jersey court agreed and
granted the motion to strike. Id. at *10.

¶6 The remaining New Jersey defendants then filed motions
for summary judgment on the ground that, without expert
testimony, the Kuhars could not establish their claims of design

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Kuhar v. Thompson Manufacturing

defect or failure to warn. Kuhar v. Petzl Co. (Kuhar II), No. 16-
0395, 2019 WL 6211544, at *2 (D.N.J. Oct. 21, 2019). The court
agreed and granted the motions, concluding that the Kuhars
could not establish that the harness’s failure resulted from a
design defect or failure to warn without the assistance of expert
testimony. Id. at *5.

¶7 By the time of the New Jersey court’s ruling, the case in
Utah was in the middle of the discovery phase, with an expert
discovery due date almost a year away. Nevertheless, Thompson
moved for summary judgment in the Utah case on the ground
that the New Jersey ruling collaterally estopped the Kuhars from
establishing their claims against Thompson. The district court
agreed and granted Thompson’s motion for summary judgment.
The Kuhars now appeal.

ISSUE AND STANDARD OF REVIEW

¶8 The Kuhars challenge the district court’s grant of
summary judgment in favor of Thompson, asserting that their
Utah claims against Thompson were not barred by the New
Jersey court’s summary judgment ruling in favor of the other
defendants because the issues in the Utah and New Jersey
cases were not identical. Summary judgment is appropriate
only when “there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.”
Utah R. Civ. P. 56(a). We review a district court’s ruling on
summary judgment for correctness. Rupp v. Moffo, 2015 UT 71,
¶ 5, 358 P.3d 1060. Specifically, the “determination of whether
res judicata bars an action presents a question of law,” which
we review for correctness. Macris & Assocs., Inc. v. Neways Inc.,
2000 UT 93, ¶ 17, 16 P.3d 1214; see also Massey v. Board of Trs. of
Ogden Area Cmty. Action Comm., Inc., 2004 UT App 27, ¶ 5, 86
P.3d 120.

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Kuhar v. Thompson Manufacturing

ANALYSIS

¶9 “Issue preclusion, often referred to as collateral estoppel,
prevents relitigation of issues already determined in a previous
action.” Collins v. Sandy City Board of Adjustment, 2000 UT App
371, ¶ 8, 16 P.3d 1251. To establish issue preclusion, a party must
show

(1) the issue decided in the prior adjudication is
identical to the one presented in the instant action;
(2) the party against whom issue preclusion is
asserted was a party, or in privity with a party, to
the prior adjudication; (3) the issue in the first
action was completely, fully, and fairly litigated;
and (4) the first suit resulted in a final judgment on
the merits.

Buckner v. Kennard, 2004 UT 78, ¶ 13, 99 P.3d 842. 1 As our
supreme court has noted, this doctrine “prevents parties or their
privies from relitigating issues which were once adjudicated on
the merits and have resulted in a final judgment.” Murdock v.
Springville Mun. Corp. (In re General Determination of the Rights to
the Use of All the Water), 1999 UT 39, ¶ 18, 982 P.2d 65 (emphasis
added). Thompson’s collateral estoppel arguments run into
trouble on both the first and the third elements.

¶10 With regard to the first element, the issues actually
decided in the New Jersey litigation were not the same as the

1. Although the collateral estoppel question concerns the
preclusive effect of a New Jersey ruling, no party asserts that we
should apply New Jersey law to answer the collateral estoppel
question. And in any event, no suggestion has been made that
New Jersey law and Utah law differ in application of collateral
estoppel principles.

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Kuhar v. Thompson Manufacturing

issues raised before the district court here. In New Jersey, the
court determined both (1) that a particular expert’s testimony,
proffered by the Kuhars, was inadmissible under rule 702 of the
Federal Rules of Evidence and applicable federal case law, see
Kuhar I, No. 16-0395, 2018 WL 7571319, at *9–10 (D.N.J. Nov. 27,
2018), and (2) that without that expert’s testimony, under New
Jersey law the Kuhars could not satisfy their burden of
establishing their product liability claims, see Kuhar II, No. 16-
0395, 2019 WL 6211544, at *5, *8–9 (D.N.J. Oct. 21, 2019). Those
are not the same issues that the parties raised in the district court
in the present case.

¶11 The Utah case was in its early stages when Thompson
filed its summary judgment motion, and expert disclosure
deadlines had not yet passed. The Kuhars had not yet submitted
any expert report in support of their claims—certainly not the
same expert report that was excluded in New Jersey—and the
district court was not asked to weigh in on whether the specific
testimony of any particular expert was admissible. 2 Thus,

2. Moreover, even if the Kuhars had sought to admit, in Utah,
the same testimony by the same expert based on the same report
they submitted in New Jersey, the question would have been
governed by Utah law and not by federal law. See Utah R. Evid.
702. Our standards for admission of expert testimony are not the
same as—and are arguably somewhat more lenient than—the
standards for admission of expert testimony under federal law.
See State v. Sheehan, 2012 UT App 62, ¶ 22, 273 P.3d 417 (noting
that “Utah’s rule 702 differs from its current federal counterpart
by requiring ‘only a “threshold” showing’” (quoting Utah R.
Evid. 702 advisory committee note)). Thus, the question of
whether a particular expert’s testimony is admissible under
federal law is not necessarily the same as whether that same
testimony is admissible under Utah law. In light of our arguably
(continued…)

20200584-CA 5 2022 UT App 22
Kuhar v. Thompson Manufacturing

because the Kuhars had not been adjudicated to be bereft of
expert testimony, the court had no occasion to consider whether
the Kuhars, in the absence of expert testimony, would be able to
satisfy their burden of proof on the merits of their underlying
claim.

¶12 By contrast, the issue that was the subject of Thompson’s
summary judgment motion—the issue to which Thompson
wished to ascribe preclusive effect—was whether the product in
question was defective. Indeed, even in its briefing on appeal,
Thompson continues to frame the relevant issue as whether the
product in question was defective. But the New Jersey court
never grappled with the merits of that issue; it decided the case
against the Kuhars not because it made a factual determination
that the product was not defective but because it determined
that the Kuhars could not satisfy their burden of proof on that
point without expert testimony. Because the New Jersey court
never concerned itself with the merits of whether the product
was defective, that issue is not one to which Thompson here can
ascribe preclusive effect.

¶13 And it is at this point in the analysis that the third element
of the collateral estoppel test comes into play. That third element
requires Thompson to demonstrate that “the issue in the first
action was completely, fully, and fairly litigated.” See Buckner,
2004 UT 78, ¶ 13; see also Murdock, 1999 UT 39, ¶ 18 (stating that
the elements of collateral estoppel require that the issue in

(…continued)
more lenient standards, it is at least conceivable that a given
expert’s testimony could be admissible under Utah law even if it
is not admissible under federal law. In any event, we need not
consider these issues further here, because the Kuhars have not
sought to admit the same testimony by the same expert whose
report was excluded in New Jersey.

20200584-CA 6 2022 UT App 22
Kuhar v. Thompson Manufacturing

question have been “adjudicated on the merits”). If we define the
“issue” as Thompson asks us to—namely, whether the product
in question was defective—it becomes clear that this issue was
never the subject of full and complete litigation in New Jersey.
The court simply never reached the merits of that issue—i.e.,
holding a trial to weigh the evidence and make a finding as to
the alleged defective nature of the product—because it
determined that the Kuhars’ overarching claim failed on what
amounted to a procedural ground.

¶14 A court that dismisses a party’s claim on nonmerits
procedural grounds (say, for instance, because a party’s answer
has been stricken as a sanction for discovery abuses or because a
party fails to appear at a hearing) has not fully litigated the
merits of the underlying substantive issue, even though its
dismissal of the overarching claim may operate as an “on the
merits” dismissal. 3 See, e.g., Schuh v. American Express Bank, FSB,

3. Had Thompson asked for application of claim preclusion
(instead of issue preclusion), it would have a fair point that the
Kuhars had raised a defective product claim and had lost on the
merits—whether on a procedural or substantive ground—and
that they are attempting to raise the same defective product
claim here. See Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93,
¶ 19, 16 P.3d 1214 (stating that claim preclusion “precludes the
relitigation of all issues that could have been litigated as well as
those that were, in fact, litigated in the prior action” (quotation
simplified)). But there is no such thing as nonmutual claim
preclusion; we presume that the reason Thompson does not ask
for application of claim preclusion here is that the parties to the
New Jersey decision are not the same as the parties to this case,
due to Thompson’s dismissal from the New Jersey case on
personal jurisdiction grounds. See id. (“Claim preclusion
involves the same parties or their privies . . . .”). Had Thompson
(continued…)

20200584-CA 7 2022 UT App 22
Kuhar v. Thompson Manufacturing

806 F. App’x 973, 974 (11th Cir. 2020) (stating that the order of
dismissal in the first case “cannot serve as collateral estoppel” in
the second case “because [the first] case was not actually fully
litigated and decided” but “was dismissed as a sanction”); cf.
Zufelt v. Haste, Inc., 2006 UT App 326, ¶ 15, 142 P.3d 594 (holding
that the issue to which the court was being asked to ascribe
preclusive effect “was not the central issue in the” previous
proceeding and “was only superficially addressed in discussions
pertaining to” another determination the court made, and that
therefore the court could not “say that [the party] had an
opportunity to completely and fully litigate the issue”);
Restatement (Second) of Judgments § 27 cmt. d (Am. L. Inst.
1982) (stating that an “issue is actually litigated” when it “is
properly raised . . . and is submitted for determination, and is
determined”). Reaching the merits of an issue is not always the
same thing as reaching the merits of a claim. A court can decide
the merits of an underlying issue without making a
determination as to the merits of the overarching claim (for
instance, when a court dismisses a case for lack of personal
jurisdiction, it has decided the issues related to the jurisdictional
question, but its dismissal is not on the merits and it may not
have reached the substance of the underlying claim), and a court
can dismiss a claim on its merits without reaching the merits of
one or more of the underlying issues that formed the basis for
the complaint (for instance, when a court dismisses a claim as a
sanction, the dismissal may operate as an “on the merits”
dismissal, but the court may never have reached the merits of
any of the substantive issues). To keep the doctrines of claim
preclusion and issue preclusion separate, it is important to keep

(…continued)
remained involved in the New Jersey case and not sought
dismissal on jurisdictional grounds, it would have a good
argument for application of claim preclusion here.

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Kuhar v. Thompson Manufacturing

these distinctions in mind. See 18 James Wm. Moore et al.,
Moore’s Federal Practice § 131.13[1] (2021) (“The basic difference
between claim preclusion and issue preclusion is simply put:
claim preclusion applies to whole claims, whether litigated or
not, whereas issue preclusion applies to particular issues that
have been contested and resolved.”).

¶15 Here, while the New Jersey decisions certainly disposed
of, on its merits, the Kuhars’ product liability claim against the
defendants named in that action, they never reached the merits
of the underlying issue to which Thompson points: whether the
product was defective. And as long as Thompson persists in
defining the “issue”—for purposes of issue preclusion—as
whether the product was defective, Thompson can never win a
motion for summary judgment on issue preclusion grounds.

CONCLUSION

¶16 Because the issue to which Thompson wishes to ascribe
preclusive effect was not identical to the issues actually decided
by the New Jersey court and was never fully and fairly litigated
there, the district court erred in determining that issue
preclusion barred the Kuhars’ claims. We therefore reverse the
district court’s grant of summary judgment and remand for
further proceedings.

20200584-CA 9 2022 UT App 22