When does attorney misconduct warrant a new trial in Utah courts? Winn v. McKinlay Explained

In Winn v. McKinlay, the Utah Court of Appeals examined when attorney misconduct during trial constitutes grounds for a new trial under Rule 59 of the Utah Rules of Civil Procedure. The case illustrates the critical requirement that parties demonstrate actual prejudice, not just misconduct, to obtain relief.

Background and Facts

Holly Winn underwent bariatric surgery performed by Dr. McKinlay. Her pulmonologist had recommended post-operative anticoagulants, but McKinlay did not prescribe them. Thirteen days after surgery, Winn suffered a pulmonary embolism that left her with lasting mental deficits. During his deposition, McKinlay testified that he had not seen the pulmonologist’s recommendation because it was filed in an insurance file rather than her patient file. However, at trial, McKinlay changed his testimony, claiming that based on his “custom and practice,” he likely would have reviewed and seen the recommendation in her patient file.

Key Legal Issues

The Winns moved for a new trial under Rule 59(a), arguing that defendants’ counsel orchestrated McKinlay’s change in testimony, constituting an irregularity and surprise. The district court found that the conduct did constitute irregularity and surprise but concluded the Winns were not prejudiced. The Winns also claimed they were denied the opportunity to cross-examine McKinlay about two prior patients who died from pulmonary embolisms.

Court’s Analysis and Holding

The Court of Appeals affirmed, emphasizing that Rule 59 is “limited by Rule 61,” which requires courts to disregard errors that do not affect substantial rights. Even when attorney misconduct creates an irregularity, the complaining party must demonstrate actual prejudice to warrant a new trial. The court rejected the Winns’ argument that they would have brought an informed consent claim had they known of McKinlay’s intended testimony change, finding this theory unpreserved because it was never presented to the district court during the ten-day trial or in post-trial motions.

Practice Implications

This decision reinforces that attorney misconduct alone does not automatically warrant relief—parties must prove they were actually harmed. Practitioners facing surprise testimony should immediately seek relief from the court rather than relying solely on cross-examination strategy. Additionally, all theories of prejudice must be preserved through timely objections or post-trial motions. The court’s analysis demonstrates that strategic choices made during trial cannot later be abandoned on appeal simply because they did not achieve the desired outcome.