Can parties challenge exclusion of expert testimony after agreeing to a joint expert? In re Estate of Anderson Explained

Background and Facts

In In re Estate of Anderson, a dispute arose over the authenticity of a gift letter purportedly transferring Vern Anderson’s properties to his daughter Denise Terry before his death. Anderson’s son Bryan contested the gift letter’s authenticity, and both parties initially designated separate expert witnesses for forensic document examination. However, at a pretrial conference, the court and parties agreed to appoint a single joint expert, James Tarver, with shared costs. At trial, Terry’s attorney voluntarily withdrew her expert George Throckmorton’s report, stating she would not be using the objected-to exhibits.

Key Legal Issues

The case presented two primary issues: whether the trial court improperly excluded Throckmorton’s expert witness report, and whether the court erred in denying Terry’s motion for a new trial based on insufficient evidence. Terry argued that the exclusion of her expert’s report violated her right to present evidence, despite having agreed to the joint expert arrangement.

Court’s Analysis and Holding

The Utah Court of Appeals found that Terry failed to preserve the issue for appeal because she voluntarily withdrew the report at trial. The court emphasized that “an issue is preserved for appeal when it has been presented to the [trial] court in such a way that the court has an opportunity to rule on that issue.” When Terry agreed not to use the report, she effectively withdrew her response to the objection, giving the trial court no opportunity to rule on the merits. Even if preserved, the court found any error harmless because Throckmorton’s report merely stated he “could not determine” if signatures were genuine, while the court-appointed expert concluded the signatures were “highly probable” forgeries. The trial court had sufficient evidence to support its findings, including inconsistencies in the notary block and expert testimony finding the signatures were not genuine.

Practice Implications

This decision underscores the importance of careful preservation of error and strategic decision-making regarding expert witnesses. Once parties agree to a joint expert arrangement, they cannot easily challenge that decision later. Practitioners should ensure clients understand the implications of stipulating to joint experts and avoid voluntarily withdrawing evidence they may later need on appeal. The case also demonstrates that harmless error analysis applies to expert testimony exclusions, requiring appellants to show the excluded evidence would have affected the trial’s outcome.