The Role of Expert Witnesses in Utah Summary Judgment Practice

Expert witnesses are central to many categories of Utah civil litigation — medical malpractice, construction defect, products liability, professional negligence, business valuation. But the role of expert testimony at the summary judgment stage is frequently misunderstood. Some parties assume that having an expert is automatically enough to survive summary judgment. Others assume that their own expert declaration will be dispositive in their favor. Neither assumption is reliable.

Expert testimony at the MSJ stage operates under specific rules that parallel — but are not identical to — trial testimony standards. A well-founded expert declaration can create a genuine dispute of material fact that defeats summary judgment. A conclusory expert declaration that lacks proper foundation can be struck from the record, eliminating the factual dispute it was supposed to create and potentially handing the movant a summary judgment victory.

This post explains how expert testimony functions in Utah summary judgment practice, what courts look for, and how the Daubert/Rule 702 motion interacts with the MSJ.

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Expert Testimony as Summary Judgment Evidence

Under URCP Rule 56(c), parties may support or oppose summary judgment with affidavits or declarations made on personal knowledge that set out facts that would be admissible in evidence by a person competent to testify. Expert declarations and affidavits satisfy these requirements when the expert is qualified and the opinion meets the foundational standards of Utah Rule of Evidence 702 — the same foundation required for expert testimony at trial.

A well-founded expert declaration can create a genuine dispute of material fact that defeats summary judgment. The court cannot resolve competing expert opinions on a motion for summary judgment — doing so would require weighing evidence, a function reserved for the jury. When one party produces a qualified expert who disagrees with another expert about a material fact, that disagreement is typically enough to send the case to trial.

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The Foundation Requirement: What Makes Expert Testimony Valid at the MSJ Stage

The most common error in using expert testimony at the summary judgment stage is submitting a declaration that states conclusions without explaining the basis for them. A valid expert declaration under URE 702 must:

1. Establish qualifications. The expert must have the training, experience, or education that qualifies her to offer an opinion in the relevant field. A general medical doctor opining on a specialized surgical procedure, or an engineer without structural experience opining on building failures, may face qualification challenges.

2. Identify the specific facts and data relied upon. The expert must describe what she examined: records reviewed, inspections conducted, data analyzed, literature consulted. “Based on my review of materials in this case” is inadequate. The specific materials matter.

3. Explain the methodology. The expert must describe the analytical approach used to reach the opinion — the process by which the specific facts and data lead to the conclusion stated. Methodology that is not generally accepted in the relevant field, or that is not reliably applied to the facts of the case, is vulnerable under Rule 702’s gatekeeping requirement.

4. State a specific opinion. The conclusion must be a factual opinion — not a legal conclusion. An expert can opine that the defendant’s conduct fell below the standard of care in a malpractice case. The expert cannot opine that the defendant was negligent — that is the ultimate legal conclusion the jury draws from the expert’s factual opinion.

EXPERT DECLARATION CHECKLIST FOR SUMMARY JUDGMENT

• Qualification: Expert’s credentials and relevant experience in the specific field
• Facts relied upon: Specific documents, data, records, or observations — not “materials in this case”
• Methodology: The analytical approach used to reach the opinion
• Opinion: A specific, well-founded conclusion — not a legal conclusion
• Admissibility: Would this testimony be admitted at trial under URE 702?

A conclusory declaration missing any of these elements may be struck entirely.

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When Expert Testimony Is Required to Survive Summary Judgment

Some claims in Utah cannot survive summary judgment without expert evidence. The clearest example is medical malpractice: without expert testimony establishing the applicable standard of care and the defendant’s deviation from it, the plaintiff cannot establish essential elements of the claim as a matter of law. If a medical malpractice plaintiff fails to produce a qualified expert declaration, the defendant’s MSJ will be granted.

Similar expert-required categories:

• Legal malpractice: standard of care and causation typically require expert testimony about what competent counsel would have done and how the attorney’s failure caused the harm
• Construction defect: cause and nature of defects, standard of care in the industry, and appropriate repairs typically require expert analysis
• Products liability: design defect and manufacturing defect claims often require engineering or scientific expertise to establish that the product deviated from the intended design or that a safer alternative design existed
• Business valuation: lost profits and business value damages typically require expert analysis meeting the reasonable certainty standard

In these categories, the summary judgment deadline is effectively an expert deadline. If your qualified expert declaration is not in the record when the court rules on the MSJ, you may lose even if the expert exists and could testify.

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The Daubert / Rule 702 Motion: Attacking the Opposing Party’s Expert

If the opposing party’s expert declaration is the primary obstacle to summary judgment, the movant should consider filing a motion to exclude or limit the expert’s testimony under Utah Rule of Evidence 702 before the court rules on the MSJ.

Utah courts apply a gatekeeping function to expert testimony: the trial judge must determine whether the expert’s opinion is based on sufficient facts, reliable methodology, and appropriate application to the case. The judge is not required to accept any expert’s opinion at face value. Opinions that rely on speculation, cherry-picked data, methodologies not accepted in the relevant field, or conclusions that do not follow from the stated methodology are vulnerable to exclusion.

Timing matters. A Rule 702 motion filed concurrently with or shortly after the MSJ can change the evidentiary foundation the court is working with when it evaluates the summary judgment motion. If the expert is excluded or significantly limited before the court rules on the MSJ, the factual dispute the expert was supposed to create may no longer exist — potentially making summary judgment available.

The appellate interaction is layered. If the trial court excludes an expert and grants summary judgment, the appellate court first reviews the exclusion for abuse of discretion — a more deferential standard. If the exclusion is upheld, the appellate court then reviews the resulting summary judgment de novo on the modified record. If the exclusion is reversed, the expert’s declaration goes back into the record and the summary judgment ruling is reviewed de novo with that evidence included — likely requiring reversal of the MSJ as well.

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The Sham Affidavit Doctrine

A specific risk arises when a party submits an expert declaration that directly contradicts the expert’s prior deposition testimony. Utah courts apply the sham affidavit doctrine: a party cannot manufacture a factual dispute by submitting an affidavit that flatly contradicts prior sworn testimony, where the contradiction is unexplained and appears designed solely to avoid summary judgment.

The doctrine applies to expert witnesses as well as lay witnesses. If an expert conceded at deposition that a key element cannot be established — that the standard of care was met, that causation is speculative, that the damages figure is unsupported — a later declaration attempting to walk that concession back is vulnerable to being struck as a sham.

This has an important practical implication for expert preparation: the expert’s deposition and the summary judgment declaration must be consistent. If the expert’s deposition testimony is problematic, the solution is to address it before the declaration is filed — not to contradict it after the fact.

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Expert Testimony and Damages at the MSJ Stage

Expert testimony is especially important on the damages side of summary judgment. Lost profits, business valuation, diminution in property value, and future medical expenses all typically require expert testimony to establish with the reasonable certainty required under Utah law. Damages that are speculative — that rest on projections about future market conditions without a basis in actual historical data or reliable modeling — are vulnerable to exclusion.

Defendants should scrutinize opposing damages experts carefully in cases where liability cannot be resolved on summary judgment. Even if the liability motion fails, a partial motion targeting a specific category of damages — supported by a Rule 702 challenge to the plaintiff’s damages expert — can significantly limit trial exposure. For the strategy of targeting specific damages categories through partial MSJ, see our post on partial summary judgment in Utah.

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KEY RULE

URCP Rule 56(c) and Utah Rule of Evidence 702

Expert declarations in Utah summary judgment practice must establish the expert’s qualifications, identify the specific facts and data relied upon, explain the methodology, and state a specific factual opinion — not a legal conclusion. Conclusory declarations without this foundation may be struck under URE 702. In cases requiring expert proof, failure to produce a qualified declaration is independently fatal to surviving summary judgment. The sham affidavit doctrine prohibits contradicting prior deposition testimony by post-deposition declaration. A Rule 702 motion to exclude the opposing expert — filed concurrently with the MSJ — can change the evidentiary foundation and determine the outcome.

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If Expert Testimony Is at Issue in Your Summary Judgment Proceeding

Whether you are defending against a motion by establishing your expert’s foundation or attacking the opposing party’s expert through Rule 702, the interaction between expert testimony and summary judgment requires careful strategy and coordination. Lotus Appellate Law works with Utah litigants and trial counsel on summary judgment proceedings involving expert witnesses and on the appellate review that follows. Contact us to discuss your case.