Senator Michael S. Kennedy proposes the following substitute bill:


1     
JOINT RESOLUTION AMENDING COURT RULES OF

2     
PROCEDURE AND EVIDENCE TO ADDRESS THE MEDICAL

3     
CANDOR PROCESS

4     
2022 GENERAL SESSION

5     
STATE OF UTAH

6     
Chief Sponsor: Merrill F. Nelson

7     
Senate Sponsor: Michael S. Kennedy

8     

9     LONG TITLE
10     General Description:
11          This joint resolution amends court rules of procedure and evidence to address the
12     medical candor process.
13     Highlighted Provisions:
14          This resolution:
15          ▸     amends Rule 26 of the Utah Rules of Civil Procedure to address communications,
16     materials, and information created for or during a medical candor process;
17          ▸     amends Rule 409 of the Utah Rules of Evidence to address evidence created for or
18     during a medical candor process; and
19          ▸     makes technical and conforming changes.
20     Special Clauses:
21          This resolution provides a contingent effective date.
22     Utah Rules of Civil Procedure Affected:
23     AMENDS:
24          Rule 26, Utah Rules of Civil Procedure
25     Utah Rules of Evidence Affected:

26     AMENDS:
27          Rule 409, Utah Rules of Evidence
28     

29     Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
30     of the two houses voting in favor thereof:
31          As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend
32     rules of procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of
33     all members of both houses of the Legislature:
34          Section 1. Rule 26, Utah Rules of Civil Procedure is amended to read:
35          Rule 26. General provisions governing disclosure of discovery.
36          (a) Disclosure. This rule applies unless changed or supplemented by a rule governing
37     disclosure and discovery in a practice area.
38          (1) Initial disclosures. Except in cases exempt under paragraph (a)(3), a party must,
39     without waiting for a discovery request, serve on the other parties:
40          (A) the name and, if known, the address and telephone number of:
41          (i) each individual likely to have discoverable information supporting its claims or
42     defenses, unless solely for impeachment, identifying the subjects of the information; and
43          (ii) each fact witness the party may call in its case-in-chief and, except for an adverse
44     party, a summary of the expected testimony;
45          (B) a copy of all documents, data compilations, electronically stored information, and
46     tangible things in the possession or control of the party that the party may offer in its
47     case-in-chief, except charts, summaries, and demonstrative exhibits that have not yet been
48     prepared and must be disclosed in accordance with paragraph (a)(5);
49          (C) a computation of any damages claimed and a copy of all discoverable documents or
50     evidentiary material on which such computation is based, including materials about the nature
51     and extent of injuries suffered;
52          (D) a copy of any agreement under which any person may be liable to satisfy part or all
53     of a judgment or to indemnify or reimburse for payments made to satisfy the judgment; and
54          (E) a copy of all documents to which a party refers in its pleadings.
55          (2) Timing of initial disclosures. The disclosures required by paragraph (a)(1) must
56     be served on the other parties:

57          (A) by a plaintiff within 14 days after the filing of the first answer to that plaintiff's
58     complaint; and
59          (B) by a defendant within 42 days after the filing of that defendant's first answer to the
60     complaint.
61          (3) Exemptions.
62          (A) Unless otherwise ordered by the court or agreed to by the parties, the requirements
63     of paragraph (a)(1) do not apply to actions:
64          (i) for judicial review of adjudicative proceedings or rule making proceedings of an
65     administrative agency;
66          (ii) governed by Rule 65B or Rule 65C;
67          (iii) to enforce an arbitration award; or
68          (iv) for water rights general adjudication under Title 73, Chapter 4, Determination of
69     Water Rights.
70          (B) In an exempt action, the matters subject to disclosure under paragraph (a)(1) are
71     subject to discovery under paragraph (b).
72          (4) Expert testimony.
73          (A) Disclosure of retained expert testimony. A party must, without waiting for a
74     discovery request, serve on the other parties the following information regarding any person
75     who may be used at trial to present evidence under Rule 702 of the Utah Rules of Evidence and
76     who is retained or specially employed to provide expert testimony in the case or whose duties
77     as an employee of the party regularly involve giving expert testimony: (i) the expert's name and
78     qualifications, including a list of all publications authored within the preceding 10 years, and a
79     list of any other cases in which the expert has testified as an expert at trial or by deposition
80     within the preceding four years, (ii) a brief summary of the opinions to which the witness is
81     expected to testify, (iii) the facts, data, and other information specific to the case that will be
82     relied upon by the witness in forming those opinions, and (iv) the compensation to be paid for
83     the witness's study and testimony.
84          (B) Limits on expert discovery. Further discovery may be obtained from an expert
85     witness either by deposition or by written report. A deposition must not exceed four hours and
86     the party taking the deposition must pay the expert's reasonable hourly fees for attendance at
87     the deposition. A report must be signed by the expert and must contain a complete statement of

88     all opinions the expert will offer at trial and the basis and reasons for them. Such an expert may
89     not testify in a party's case-in-chief concerning any matter not fairly disclosed in the report.
90     The party offering the expert must pay the costs for the report.
91          (C) Timing for expert discovery.
92          (i) The party who bears the burden of proof on the issue for which expert testimony is
93     offered must serve on the other parties the information required by paragraph (a)(4)(A) within
94     14 days after the close of fact discovery. Within 14 days thereafter, the party opposing the
95     expert may serve notice electing either a deposition of the expert pursuant to paragraph
96     (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The deposition must
97     occur, or the report must be served on the other parties, within 42 days after the election is
98     served on the other parties. If no election is served on the other parties, then no further
99     discovery of the expert must be permitted.
100          (ii) The party who does not bear the burden of proof on the issue for which expert
101     testimony is offered must serve on the other parties the information required by paragraph
102     (a)(4)(A) within 14 days after the later of (A) the date on which the disclosure under paragraph
103     (a)(4)(C)(i) is due, or (B) service of the written report or the taking of the expert's deposition
104     pursuant to paragraph (a)(4)(C)(i). Within 14 days thereafter, the party opposing the expert may
105     serve notice electing either a deposition of the expert pursuant to paragraph (a)(4)(B) and Rule
106     30, or a written report pursuant to paragraph (a)(4)(B). The deposition must occur, or the report
107     must be served on the other parties, within 42 days after the election is served on the other
108     parties. If no election is served on the other parties, then no further discovery of the expert must
109     be permitted.
110          (iii) If the party who bears the burden of proof on an issue wants to designate rebuttal
111     expert witnesses, it must serve on the other parties the information required by paragraph
112     (a)(4)(A) within 14 days after the later of (A) the date on which the election under paragraph
113     (a)(4)(C)(ii) is due or (B) service of the written report or the taking of the expert's deposition
114     pursuant to paragraph (a)(4)(C)(ii). Within 14 days thereafter, the party opposing the expert
115     may serve notice electing either a deposition of the expert pursuant to paragraph (a)(4)(B) and
116     Rule 30, or a written report pursuant to paragraph (a)(4)(B). The deposition must occur, or the
117     report must be served on the other parties, within 42 days after the election is served on the
118     other parties. If no election is served on the other parties, then no further discovery of the

119     expert must be permitted. The court may preclude an expert disclosed only as a rebuttal expert
120     from testifying in the case in chief.
121          (D) Multiparty actions. In multiparty actions, all parties opposing the expert must
122     agree on either a report or a deposition. If all parties opposing the expert do not agree, then
123     further discovery of the expert may be obtained only by deposition pursuant to paragraph
124     (a)(4)(B) and Rule 30.
125          (E) Summary of non-retained expert testimony. If a party intends to present
126     evidence at trial under Rule 702 of the Utah Rules of Evidence from any person other than an
127     expert witness who is retained or specially employed to provide testimony in the case or a
128     person whose duties as an employee of the party regularly involve giving expert testimony, that
129     party must serve on the other parties a written summary of the facts and opinions to which the
130     witness is expected to testify in accordance with the deadlines set forth in paragraph (a)(4)(C).
131     Such a witness cannot be required to provide a report pursuant to paragraph (a)(4)(B). A
132     deposition of such a witness may not exceed four hours and, unless manifest injustice would
133     result, the party taking the deposition must pay the expert's reasonable hourly fees for
134     attendance at the deposition.
135          (5) Pretrial disclosures.
136          (A) A party must, without waiting for a discovery request, serve on the other parties:
137          (i) the name and, if not previously provided, the address and telephone number of each
138     witness, unless solely for impeachment, separately identifying witnesses the party will call and
139     witnesses the party may call;
140          (ii) the name of witnesses whose testimony is expected to be presented by transcript of
141     a deposition;
142          (iii) designations of the proposed deposition testimony; and
143          (iv) a copy of each exhibit, including charts, summaries, and demonstrative exhibits,
144     unless solely for impeachment, separately identifying those which the party will offer and those
145     which the party may offer.
146          (B) Disclosure required by paragraph (a)(5)(A) must be served on the other parties at
147     least 28 days before trial. Disclosures required by paragraph (a)(5)(A)(i) and (a)(5)(A)(ii) must
148     also be filed on the date that they are served. At least 14 days before trial, a party must serve
149     any counter designations of deposition testimony and any objections and grounds for the

150     objections to the use of any deposition, witness, or exhibit if the grounds for the objection are
151     apparent before trial. Other than objections under Rules 402 and 403 of the Utah Rules of
152     Evidence, other objections not listed are waived unless excused by the court for good cause.
153          (6) Form of disclosure and discovery production. Rule 34 governs the form in
154     which all documents, data compilations, electronically stored information, tangible things, and
155     evidentiary material should be produced under this Rule.
156          (b) Discovery scope.
157          (1) In general. Parties may discover any matter, not privileged, which is relevant to
158     the claim or defense of any party if the discovery satisfies the standards of proportionality set
159     forth below.
160          (2) Privileged matters.
161          (A) Privileged matters that are not discoverable or admissible in any proceeding of any
162     kind or character include:
163          (i) all information in any form provided during and created specifically as part of a
164     request for an investigation, the investigation, findings, or conclusions of peer review, care
165     review, or quality assurance processes of any organization of health care providers as defined
166     in [the] Utah Code Title 78B, Chapter 3, Part 4, Utah Health Care Malpractice Act, for the
167     purpose of evaluating care provided to reduce morbidity and mortality or to improve the quality
168     of medical care, or for the purpose of peer review of the ethics, competence, or professional
169     conduct of any health care provider[.]; and
170          (ii) except as provided in paragraph (b)(2)(C), (D), or (E), all communications,
171     materials, and information in any form specifically created for or during a medical candor
172     process under Utah Code Title 78B, Chapter 3, Part 4a, Utah Medical Candor Act, including
173     any findings or conclusions from the investigation and any offer of compensation.
174          (B) Disclosure or use in a medical candor process of any communication, material, or
175     information in any form that contains any information described in paragraph (b)(2)(A)(i) does
176     not waive any privilege or protection against admissibility or discovery of the information
177     under paragraph (b)(2)(A)(i).
178          (C) Any communication, material, or information in any form that is made or provided
179     in the ordinary course of business, including a medical record or a business record, that is
180     otherwise discoverable or admissible and is not created for or during a medical candor process

181     is not privileged by the use or disclosure of the communication, material, or information during
182     a medical candor process.
183          (D) (i) Any information that is required to be documented in a patient's medical record
184     under state or federal law is not privileged by the use or disclosure of the information during a
185     medical candor process.
186          (ii) Information described in paragraph (b)(2)(D)(i) does not include an individual's
187     mental impressions, conclusions, or opinions that are formed outside the course and scope of
188     the patient's care and treatment and are used or disclosed in a medical candor process.
189          (E) (i) Any communication, material, or information in any form that is provided to an
190     affected party before the affected party's written agreement to participate in a medical candor
191     process is not privileged by the use or disclosure of the communication, material, or
192     information during a medical candor process.
193          (ii) Any communication, material, or information described in paragraph (b)(2)(E)(i)
194     does not include a written notice described in Utah Code section 78B-3-452.
195          (F) The terms defined in Utah Code section 78B-3-450 apply to paragraphs
196     (b)(2)(A)(ii), (B), (C), (D), and (E).
197          (G) Nothing in this paragraph (b)(2) shall prevent a party from raising any other
198     privileges provided by law or rule as to the admissibility or discovery of any communication,
199     information, or material described in paragraph (b)(2)(A), (B), (C), (D), or (E).
200          [(2)] (3) Proportionality. Discovery and discovery requests are proportional if:
201          (A) the discovery is reasonable, considering the needs of the case, the amount in
202     controversy, the complexity of the case, the parties' resources, the importance of the issues, and
203     the importance of the discovery in resolving the issues;
204          (B) the likely benefits of the proposed discovery outweigh the burden or expense;
205          (C) the discovery is consistent with the overall case management and will further the
206     just, speedy, and inexpensive determination of the case;
207          (D) the discovery is not unreasonably cumulative or duplicative;
208          (E) the information cannot be obtained from another source that is more convenient,
209     less burdensome, or less expensive; and
210          (F) the party seeking discovery has not had sufficient opportunity to obtain the
211     information by discovery or otherwise, taking into account the parties' relative access to the

212     information.
213          [(3)] (4) Burden. The party seeking discovery always has the burden of showing
214     proportionality and relevance. To ensure proportionality, the court may enter orders under Rule
215     37.
216          [(4)] (5) Electronically stored information. A party claiming that electronically
217     stored information is not reasonably accessible because of undue burden or cost must describe
218     the source of the electronically stored information, the nature and extent of the burden, the
219     nature of the information not provided, and any other information that will enable other parties
220     to evaluate the claim.
221          [(5)] (6) Trial preparation materials. A party may obtain otherwise discoverable
222     documents and tangible things prepared in anticipation of litigation or for trial by or for another
223     party or by or for that other party's representative (including the party's attorney, consultant,
224     surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has
225     substantial need of the materials and that the party is unable without undue hardship to obtain
226     substantially equivalent materials by other means. In ordering discovery of such materials, the
227     court must protect against disclosure of the mental impressions, conclusions, opinions, or legal
228     theories of an attorney or other representative of a party.
229          [(6)] (7) Statement previously made about the action. A party may obtain without
230     the showing required in paragraph [(b)(5)] (b)(6) a statement concerning the action or its
231     subject matter previously made by that party. Upon request, a person not a party may obtain
232     without the required showing a statement about the action or its subject matter previously made
233     by that person. If the request is refused, the person may move for a court order under Rule 37.
234     A statement previously made is (A) a written statement signed or approved by the person
235     making it, or (B) a stenographic, mechanical, electronic, or other recording, or a transcription
236     thereof, which is a substantially verbatim recital of an oral statement by the person making it
237     and contemporaneously recorded.
238          [(7)] (8) Trial preparation; experts.
239          (A) Trial-preparation protection for draft reports or disclosures. Paragraph
240     [(b)(5)] (b)(6) protects drafts of any report or disclosure required under paragraph (a)(4),
241     regardless of the form in which the draft is recorded.
242          (B) Trial-preparation protection for communications between a party's attorney

243     and expert witnesses. Paragraph [(b)(5)] (b)(6) protects communications between the party's
244     attorney and any witness required to provide disclosures under paragraph (a)(4), regardless of
245     the form of the communications, except to the extent that the communications:
246          (i) relate to compensation for the expert's study or testimony;
247          (ii) identify facts or data that the party's attorney provided and that the expert
248     considered in forming the opinions to be expressed; or
249          (iii) identify assumptions that the party's attorney provided and that the expert relied on
250     in forming the opinions to be expressed.
251          (C) Expert employed only for trial preparation. Ordinarily, a party may not, by
252     interrogatories or otherwise, discover facts known or opinions held by an expert who has been
253     retained or specially employed by another party in anticipation of litigation or to prepare for
254     trial and who is not expected to be called as a witness at trial. A party may do so only:
255          (i) as provided in Rule 35(b); or
256          (ii) on showing exceptional circumstances under which it is impracticable for the party
257     to obtain facts or opinions on the same subject by other means.
258          (8) Claims of privilege or protection of trial preparation materials.
259          (A) Information withheld. If a party withholds discoverable information by claiming
260     that it is privileged or prepared in anticipation of litigation or for trial, the party must make the
261     claim expressly and must describe the nature of the documents, communications, or things not
262     produced in a manner that, without revealing the information itself, will enable other parties to
263     evaluate the claim.
264          (B) Information produced. If a party produces information that the party claims is
265     privileged or prepared in anticipation of litigation or for trial, the producing party may notify
266     any receiving party of the claim and the basis for it. After being notified, a receiving party must
267     promptly return, sequester, or destroy the specified information and any copies it has and may
268     not use or disclose the information until the claim is resolved. A receiving party may promptly
269     present the information to the court under seal for a determination of the claim. If the receiving
270     party disclosed the information before being notified, it must take reasonable steps to retrieve
271     it. The producing party must preserve the information until the claim is resolved.
272          (c) Methods, sequence, and timing of discovery; tiers; limits on standard
273     discovery; extraordinary discovery.

274          (1) Methods of discovery. Parties may obtain discovery by one or more of the
275     following methods: depositions upon oral examination or written questions; written
276     interrogatories; production of documents or things or permission to enter upon land or other
277     property, for inspection and other purposes; physical and mental examinations; requests for
278     admission; and subpoenas other than for a court hearing or trial.
279          (2) Sequence and timing of discovery. Methods of discovery may be used in any
280     sequence, and the fact that a party is conducting discovery must not delay any other party's
281     discovery. Except for cases exempt under paragraph (a)(3), a party may not seek discovery
282     from any source before that party's initial disclosure obligations are satisfied.
283          (3) Definition of tiers for standard discovery. Actions claiming $50,000 or less in
284     damages are permitted standard discovery as described for Tier 1. Actions claiming more than
285     $50,000 and less than $300,000 in damages are permitted standard discovery as described for
286     Tier 2. Actions claiming $300,000 or more in damages are permitted standard discovery as
287     described for Tier 3. Absent an accompanying damage claim for more than $300,000, actions
288     claiming non-monetary relief are permitted standard discovery as described for Tier 2.
289     Domestic relations actions are permitted standard discovery as described for Tier 4.
290          (4) Definition of damages. For purposes of determining standard discovery, the
291     amount of damages includes the total of all monetary damages sought (without duplication for
292     alternative theories) by all parties in all claims for relief in the original pleadings.
293          (5) Limits on standard fact discovery. Standard fact discovery per side (plaintiffs
294     collectively, defendants collectively, and third-party defendants collectively) in each tier is as
295     follows. The days to complete standard fact discovery are calculated from the date the first
296     defendant's first disclosure is due and do not include expert discovery under paragraphs
297     (a)(4)(C) and (D).
298      TierAmount of
Damages
Total Fact
Deposition
Hours
Rule 33
Interrogatories
including all
discrete subparts
Rule 34
Requests for
Production
Rule 36
Requests for
Admission
Days to
Complete
Standard
Fact
Discovery
299      1$50,000 or less3055120
300      2More than
$50,000 and less
than $300,000 or
non-monetary
relief
15101010180
301      3$300,000 or
more
30202020210
302      4Domestic
relations actions
410101090
303          (6) Extraordinary discovery. To obtain discovery beyond the limits established in
304     paragraph (c)(5), a party must:
305          (A) before the close of standard discovery and after reaching the limits of standard
306     discovery imposed by these rules, file a stipulated statement that extraordinary discovery is
307     necessary and proportional under paragraph (b)(2) and, for each party represented by an
308     attorney, a statement that the attorney consulted with the client about the request for
309     extraordinary discovery;
310          (B) before the close of standard discovery and after reaching the limits of standard
311     discovery imposed by these rules, file a request for extraordinary discovery under Rule 37(a);
312     or
313          (C) obtain an expanded discovery schedule under Rule 100A.
314          (d) Requirements for disclosure or response; disclosure or response by an
315     organization; failure to disclose; initial and supplemental disclosures and responses.
316          (1) A party must make disclosures and responses to discovery based on the information
317     then known or reasonably available to the party.
318          (2) If the party providing disclosure or responding to discovery is a corporation,
319     partnership, association, or governmental agency, the party must act through one or more
320     officers, directors, managing agents, or other persons, who must make disclosures and
321     responses to discovery based on the information then known or reasonably available to the
322     party.
323          (3) A party is not excused from making disclosures or responses because the party has
324     not completed investigating the case, the party challenges the sufficiency of another party's

325     disclosures or responses, or another party has not made disclosures or responses.
326          (4) If a party fails to disclose or to supplement timely a disclosure or response to
327     discovery, that party may not use the undisclosed witness, document, or material at any hearing
328     or trial unless the failure is harmless or the party shows good cause for the failure.
329          (5) If a party learns that a disclosure or response is incomplete or incorrect in some
330     important way, the party must timely serve on the other parties the additional or correct
331     information if it has not been made known to the other parties. The supplemental disclosure or
332     response must state why the additional or correct information was not previously provided.
333          (e) Signing discovery requests, responses, and objections. Every disclosure, request
334     for discovery, response to a request for discovery, and objection to a request for discovery must
335     be in writing and signed by at least one attorney of record or by the party if the party is not
336     represented. The signature of the attorney or party is a certification under Rule 11. If a request
337     or response is not signed, the receiving party does not need to take any action with respect to it.
338     If a certification is made in violation of the rule, the court, upon motion or upon its own
339     initiative, may take any action authorized by Rule 11 or Rule 37(b).
340          (f) Filing. Except as required by these rules or ordered by the court, a party must not
341     file with the court a disclosure, a request for discovery, or a response to a request for discovery,
342     but must file only the certificate of service stating that the disclosure, request for discovery, or
343     response has been served on the other parties and the date of service.
344          Section 2. Rule 409, Utah Rules of Evidence is amended to read:
345          Rule 409. Payment of Medical and Similar Expenses; Expressions of Apology;
346     Medical Candor Process.
347          (a) Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or
348     similar expenses resulting from an injury is not admissible to prove liability for the injury.
349          (b) Evidence of unsworn statements, affirmations, gestures, or conduct made to a
350     patient or a person associated with the patient by a defendant that expresses the following is not
351     admissible in a malpractice action against a health care provider or an employee of a health
352     care provider to prove liability for an injury[.]:
353          (b) (1) apology, sympathy, commiseration, condolence, compassion, or general sense
354     of benevolence; or
355          (b) (2) a description of the sequence of events relating to the unanticipated outcome of

356     medical care or the significance of events.
357          (c) Evidence of any communication, information, material, or conduct created for or
358     during a medical candor process under Utah Code Title 78B, Chapter 3, Part 4a, Utah Medical
359     Candor Act, is not admissible in a malpractice action against a health care provider or an
360     employee of a health care provider to prove liability for an injury, including:
361          (c) (1) any findings or conclusions of an investigation under Utah Code section
362     78B-3-451 that are shared with a patient or a representative of a patient; or
363          (c) (2) any offer of compensation made to the patient or a representative of a patient
364     during or as part of the medical candor process.
365          (d) The terms defined in Utah Code section 78B-3-450 apply to paragraph (c).
366          Section 3. Effective date.
367          This resolution takes effect upon approval by a constitutional two-thirds vote of all
368     members elected to each house, only if H.B. 344, Utah Medical Candor Act (2022 General
369     Session), passes the Legislature and becomes law on May 4, 2022.