Can pro se litigants avoid preservation requirements when challenging procedural rulings? Baumann v. Kroger Explained

The Utah Supreme Court’s decision in Baumann v. Kroger serves as a critical reminder that preservation requirements apply equally to pro se and represented litigants. This medical malpractice case demonstrates how procedural missteps can doom an appeal regardless of the underlying merits.

Background and Facts

Kari Baumann, proceeding pro se, sued her physician and pharmacy for allegedly overprescribing blood pressure medication. However, she failed to designate expert witnesses on the applicable standards of care until after discovery deadlines had passed and defendants’ summary judgment motions were fully briefed. On the day originally scheduled for the summary judgment hearing, Baumann attempted to designate an expert on the pharmacy’s standard of care under “URCP 26,” but never designated an expert regarding the physician’s standard of care.

Key Legal Issues

The case presented two main issues: whether the district court should have applied Rule 16 sanctions instead of Rule 26 exclusion for the late-disclosed expert, and whether the court abused its discretion in failing to consider if allowing the late expert testimony would be harmless. Baumann also argued the district court should have postponed ruling to allow her to find an expert on the physician’s standard of care.

Court’s Analysis and Holding

The Utah Supreme Court affirmed on preservation grounds, finding that Baumann had failed to preserve any of her appellate arguments. Critically, the court noted that by submitting her expert report “under URCP 26,” Baumann had invited application of Rule 26 rather than Rule 16. The court emphasized that pro se litigants are held to the same standards as represented parties and cannot avoid preservation requirements based on their self-represented status.

Practice Implications

This decision underscores the importance of preserving arguments at the trial court level. Even when dealing with sympathetic pro se litigants, appellate courts will not excuse failures to properly present legal theories below. The invited error doctrine applies when parties encourage courts to make specific rulings they later challenge on appeal. Practitioners should ensure that alternative legal theories are explicitly raised in the district court, particularly when seeking application of different procedural rules for the same conduct.