The Utah Supreme Court reversed an order precluding the plaintiff in a medical malpractice case from calling two designated expert witnesses.

The basis for the exclusion was the alleged exposure of the witnesses to confidential information.

 In this medical malpractice suit, the district court struck two sets of proposed expert witnesses retained by the plaintiff. The court struck the first set of witnesses because the plaintiff’s attorney revealed confidential information to them about the proceedings before a mandatory prelitigation panel. The court also struck two replacement expert witnesses because they were designated after the cutoff date established by the scheduling order. Because the plaintiff was then left without any experts to establish the necessary elements of her malpractice claim, the district court granted summary judgment in favor of the defendants and dismissed the plaintiff’s claim.

The plaintiff appeals from the judgment, arguing that the district court erred by striking both the original expert witnesses and the replacement experts. We agree with the plaintiff on both counts. The court erred by striking the original experts without inquiring whether the confidential information revealed to them influenced their opinions. The court also erred when it excluded the second set of witnesses because they were designated after the cutoff date. Although courts have discretion to sanction a party for violating a scheduling order, the district court applied the wrong rule when it sanctioned the plaintiff. Moreover, the sanction of witness exclusion was not warranted in this case.

(Mike Frisch)