When can Utah courts exclude expert testimony based on insufficient experience? ConocoPhillips Company v. UDOT Explained

The Utah Court of Appeals recently addressed when courts may properly exclude expert testimony based on insufficient experience in ConocoPhillips Company v. UDOT. The case involved a highway construction project where wick drains were installed near a relocated pipeline, later resulting in discovered damage and litigation over causation.

Background and Facts

UDOT contracted with Ames Construction for highway work that required ConocoPhillips to relocate its pipeline. After completion, Ames installed hundreds of wick drains up to 100 feet underground to remove excess moisture. Several wick drains were placed within 7-8 feet of the pipeline’s surface markers, with at least one within 4 feet. Years later, inspection revealed two dents in the pipeline near where wick drains had been installed. ConocoPhillips sued, claiming the wick drain installation caused the damage.

Key Legal Issues

The central issue was whether expert witness Brent Cathey could testify about wick drains’ potential to damage pipelines under Utah Rule of Evidence 702. Cathey had conducted pipeline coating tests and observed wick drain installation once, but had no specific experience with wick drain-pipeline interactions. The court also addressed whether a percipient witness improperly offered expert opinions about testing effectiveness.

Court’s Analysis and Holding

The Court of Appeals affirmed the exclusion of Cathey’s testimony about wick drains under the abuse of discretion standard. While Cathey qualified as an expert on general pipeline coating issues, he admitted being “not familiar with [wick-drain installation] whatsoever” and had never observed a pipe being struck by a wick drain. The court found Cathey failed to explain how his limited experience led to his conclusions about wick drain damage or demonstrate reliable application of his knowledge to these specific facts.

Regarding the improper opinion testimony, the court applied the invited error doctrine. When defendants initially sought a curative instruction but then agreed to an alternative remedy of prohibiting reference to the testimony in closing arguments, they waived their right to appeal the court’s failure to give the instruction.

Practice Implications

This decision clarifies that experiential expert testimony requires more than general experience in a related field. Under State v. Shepherd, experts must demonstrate how their specific experience led to their conclusions and show reliable application to the case facts. Practitioners should ensure expert witnesses can articulate clear connections between their experience and their opinions, particularly when dealing with specialized equipment or processes outside the expert’s primary field.