At oral argument before the Utah Court of Appeals, attorneys for Emily Holmes and Catherine Smith disputed whether Holmes was entitled to a new trial or alternative relief after the trial court refused an apportionment jury instruction and excluded evidence of certain damages.

Lauren Peck, counsel for appellant Emily Holmes, told the court, “Emily Holmes did not get a fair trial on damages,” and urged that the jury should have been instructed how to apportion damages between injuries caused by the crash and preexisting degenerative changes.

The case centers on whether the district court properly (1) refused a preexisting-conditions/apportionment instruction, (2) excluded evidence and expert opinions about future work life and specialized equipment (a sit–stand “VariDesk”) under Utah Rules of Evidence 702 and 403, and (3) excluded certain medical records and foundational proof under rule 803(6). The dispute turns on what evidence was actually presented at trial and whether the excluded material was so contradictory or confusing that the trial court properly exercised its gatekeeping role.

Peck told the court that the record contained conflicting expert testimony about whether degenerative changes had been “lit up” by the accident and that Dr. Sonnenburg “used those words ‘lit up’” when testifying. Peck said the defense changed positions during pretrial proceedings and that the district court allowed the defense to pursue its theory at trial.

Jeffrey Owens, counsel for appellee Catherine Smith, responded that the crucial question is what testimony actually reached the jury. “No. So the only expert testimony that was unrebutted was Dr. Snook’s testimony,” Owens said, arguing that the jury heard unrebutted testimony that the accident produced a transient muscle or ligament strain that had resolved and that later treatment addressed a separate, degenerative condition. Owens urged the court that, without evidence at trial supporting aggravation or a single injury requiring apportionment, an apportionment instruction would have been inappropriate.

Both sides also contested the exclusion of a damages award for a sit–stand desk (referred to in the record as a ‘‘VariDesk’’). Peck argued the desk’s required years of use are tied to work-life-expectancy calculations and therefore were entwined with other damages; Owens emphasized that the trial court found the expert’s calculations contained “egregious inconsistencies” — for example, recommending replacement intervals (every three to five years) that conflicted with warranty and life-expectancy evidence — making those opinions unreliable under rule 702 and properly subject to exclusion under rule 403.

Counsel also debated whether medical records were admissible under the business-records hearsay exception, rule 803(6). Owens contended the party seeking admission had not shown the records’ foundation and that an expert’s reliance on out-of-court materials does not automatically make those materials admissible; Peck argued the treating records and the plaintiff’s expert testimony supplied the necessary foundational indicia.

The judges pressed both sides about the legal standards. At several points the bench asked whether Utah precedent requires proof of aggravation for an apportionment instruction and how the trial court should apply rule 702’s gatekeeping function when experts present alternative scenarios to the jury. Counsel also discussed the interplay between pleading special damages (Rule 9) and later presenting specific items such as workplace accommodations at trial.

The court took the arguments under advisement and said it would issue an opinion in due course.