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State v. Butters; Berger v. Ogden Regional Medical Center; JBS USA & American Zurich Insurance v. Labor Commission presented by The Appellate Group


State v. Buttars, 2020 UT App 87 (Orme, J.)

The defendant was CEO of a small tech company that eventually went under. He thereafter created a new tech company with a friend providing the same service. In both enterprises, the defendant sought small amounts of funding from multiple parties, promising the funds would be used for various business expenses and expansion. He and the friend used that funding to pay for personal bills, as well as to pay for business expenses. The State investigated the use of the enterprises’ investment funds. It subpoenaed to two banks—Chase and Frontier—but those subpoenas included a secrecy clause without seeking or obtaining a secrecy order from the district court. Furthermore, only Chase returned its records with the appropriate custodial affidavit certificates; Frontier’s had no certificates. The State charged the defendant with four counts of securities fraud, four counts of theft, and one count of engaging in a pattern of unlawful activity. Before trial, the State had an expert prepare summary reports and cover sheets containing notations and opinions on certain transactions. The defendant moved to suppress his bank records because they were inadmissible hearsay and violated his Fourth Amendment right to privacy. The court admitted everything, but at trial only the summaries and attached cover sheets were admitted to the jury. He was acquitted of all four theft charges and convicted of the rest. The defendant appealed. The Utah Court of Appeals reversed and remanded for a new trial, holding:

  1. It was error to admit the Frontier bank records under the residual rule without a more compelling explanation for why the business records exception would not suffice. The business records rule applies over the residual rule, because it is the more specific rule dealing with bank records. The residual exception is only intended to be used when the records do not fit into a recognized exception.
  2. Because the Frontier bank records were not admissible under the residual exception, neither were their summaries.Summaries of voluminous writings under Utah Rules of Evidence rule 1006 can only be admitted to prove the content of voluminous writings; expert opinion should not be a part of 1006 summaries because expert opinion is not a part of the content of the actual underlying records. The proponent of a summary must show that it is admissible, typically requiring admissibility under the business records exception to hearsay.
  3. Entry of the Frontier bank records prejudiced the defendant. The State’s case hinged on the Frontier bank records. The majority of the evidentiary backing for the summaries and cover sheets came directly from the inadmissible Frontier records, and it is not reasonably likely that the defendant would have been convicted based on the Chase records alone, which did contain the required certificates. Contrary to the State’s claim on appeal, nothing in the record suggests that the State could have produced a witness to vouch for the Frontier records or a certificate as required by the rules.
  4. Even if the secrecy provision was not included in the subpoenas to both banks, there is no evidence that the defendant could have successfully quashed them had he known about them. The secrecy language did not affect the validity of the subpoenas and the underlying search.
  5. Cover sheets are not substance evidence under rule 1006.
  6. An alternative ground for affirmance must be grounded in the district court’s findings. On appeal, an appellate court may not find new facts or reweigh the evidence in light of a new legal theory or alternate ground forwarded by the State. 


Berger v. Ogden Regional Medical Center, 2020 UT App 85 (Pohlman, J.)

In early 2011, during lung surgery, a patient suffered a brain injury and emerged from surgery unresponsive. She died a week later. In 2014, the plaintiffs—the patient’s estate and two close family members—filed a medical malpractice suit against the hospital and several medical professionals. In 2018, the day before the expert disclosure deadline, the plaintiffs filed a motion asking for a ruling on a res ipsa loquitur jury instruction. They further sought to extend the expert disclosure deadline until the court decided whether res ipsa loquitur applied. The district court ruled that res ipsa loquitur did not apply, denied their request to extend the expert discovery deadlines, and granted summary judgment in favor of the defendants. The plaintiffs appealed. The Utah Court of Appeals affirmed, holding:

  1. The district court correctly ruled that res ipsa loquitur did not apply. Res ipsa loquitur relies on, among other things, an understanding that the accident was of a kind which, in the ordinary course of events, would not have happened had the defendants used due care. Such an understanding allows plaintiffs to bypass admitting expert testimony on a breached standard of care. But here, the medical and standard of care questions are complex and involve a number of subjects with which a lay juror would have no familiarity or expertise, including non-small cell carcinoma, robotic surgery, anesthesia techniques, and hospital blood procedures and administration. It is not within the common understanding of laypersons to determine whether a surgeon correctly performed the robotic evaluation and removal of non-small cell carcinoma, whether anesthesia techniques used during the surgery were appropriate and within the standard of care, and whether a patient was adequately and appropriately monitored during a procedure. It is also not within the common understanding of laypersons to evaluate hospital policies regarding availability of blood product in procedures such as this, including blood bank procedures and the use of a cell saver machine. Res ipsa loquitur did not apply.
  2. The district court did not abuse its discretion in refusing to grant the plaintiff’s motion to extend the expert disclosure deadline. The decision whether to grant such a motion is a discretionary call. And the court articulated reasonable bases for its decision: the plaintiffs had been litigating the case for four years, had every opportunity to designate expert witnesses, and forced the defendants to disclose their witnesses out of order and without the benefit of the plaintiff’s expert disclosures. This was not an abuse of discretion, even if the court of appeals would possibly have made a different call
  3. Because res ipsa loquitur was not available in this case, the grant of summary judgment was appropriate, because the plaintiffs cannot prove all of the elements of a medical malpractice claim without an expert to testify about the standard of care in the medical community.


JBS USA & American Zurich Insurance v. Labor Commission, 2020 UT App 86 (Orme, J.)

Employee was a professional truck driver who had preexisting conditions in her right knee and lower back when she started working for Employer. While working for Employer, Employee’s semi-truck caught on fire and Employee quickly exited the truck by jumping to the ground and away from the truck (a drop of approximately 40 inches) instead of exiting the truck by climbing down steps. Employee filed for worker’s compensation benefits, claiming she had developed pain in her legs and back from jumping and running away from the truck. The Labor Commission affirmed an award of workers’ compensation benefits to Employee. The Utah Court of Appeals affirmed, holding:

  1. Employer failed to demonstrate that the Commission’s finding that Employee exited the truck under exigent circumstances was not supported by substantial evidence where Employer did not marshal the evidence supporting the Commission’s findings and highlighted only the evidence it believed undermined Employee’s credibility.
  2. Employee’s jump out of and away from the truck under exigent circumstances that caused her to hurry and prevented her from taking precautionary measures was sufficient to constitute an unusual exertion that satisfied the heighted legal cause standard required for individuals with preexisting conditions.
  3. It is not dispositive of this case that the height of Employee’s jump from the truck was less than the jumps that constituted an unusual activity in Miera v. Industrial Commission, 728 P.2d 1023 (Utah 1986) because the jumps in Meira were planned events, capable of care in execution, while Employee’s jump in this case was unplanned and the product of an emergency. A jump (like any action) must be evaluated in light of the totality of the circumstances; it is not just a question of height in determining if it is an unusual activity.

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