apportionment instruction in Utah

2025Without such testimony, the court concluded that the instruction on apportionment was erroneous because “the evidence failed to supply the jury with a nonarbitrary basis for apportioning damages.” Id. ¶ 41. ¶30 As we have explained elsewhere, “the issue in ShopKo was whether there was sufficient evidence to support giving an apportionment instruction to the jury.” Schreib v. Whitmer, 2016 UT App 61, ¶ 17 , 370 P.3d 955 (citing ShopKo, 2013 UT 34, ¶ 31 ).

2025Instead, the case centered on “whether there was sufficient evidence to support giving an apportionment instruction to the jury.” Id. 12 12.

2023And finally, public policy supports placing the burden of proof on the employer: issues of apportionment can be unusually complicated because of the 20220242-CA 7 2023 UT App 31 Barker v. Labor Commission difficulty in attributing and apportioning disability among various causes, so it should be “the employer whose working conditions have admittedly caused harm to the employee” who should bear the burden of “medical imprecision” inherent in the apportionment analysis.

2023See Cowin, 860 P.2d at 538 ; cf. Walls v. Hodo Chevrolet Co., 302 So. 2d 862 , 865–66 (Miss. 1974) (concluding that it was appropriate to place the burden on the employer to not only prove the existence of a pre-existing condition for purposes of apportionment but to present medical evidence that the pre- existing disease contributed to the employee’s disability).

2022While it is true that we do not “judge an attorney’s performance based only on settled law,” Silva, 2019 UT 36, ¶ 19 , we agree with the State that without a clear basis in the statutory language and given the lack of legal precedent, defense counsel’s performance here did not fall below an objective standard of reasonableness, see Jones, 2020 UT App 31 , ¶¶ 46–47 (explaining that counsel could reasonably conclude there was no legal problem to correct and that “such a conclusion is particularly reasonable given that no Utah appellate court has squarely addressed” the relevant legal issue). ¶34

2022And while the supreme court in Ogden concluded that the legislature “intended that the same causation standard apply in a restitution hearing that would apply in a parallel civil action,” 2018 UT 8, ¶ 38 , it did not hint that the apportionment standard should likewise be imported into the Restitution Act’s causation analysis. ¶33 Given the lack of clarity in the law and the difficulty defense counsel would have faced in advocating for the application of the apportionment standard in restitution proceedings, we are unpersuaded that it was unreasonable for defense counsel to not make the argume

2022While it is true that we do not “judge an attorney’s performance based only on settled law,” Silva, 2019 UT 36, ¶ 19 , we agree with the State that without a clear basis in the statutory language and given the lack of legal precedent, defense counsel’s performance here did not fall below an objective standard of reasonableness, see Jones, 2020 UT App 31 , ¶¶ 46–47 (explaining that counsel could reasonably conclude there was no legal problem to correct and that “such a conclusion is particularly reasonable given that no Utah appellate court has squarely addressed” the relevant legal issue). ¶34

2013On the facts of Ms. Harris’s case, an apportionment instruction requires expert testimony on the portion of the plaintiff’s injury that is accurate as it might have been.” (emphasis added) (internal quotation marks omitted)). 47 Harris, 2011 UT App 329, ¶ 25 . 48 At closing argument, counsel for ShopKo argued that Ms. Harris was “asking to be compensated for conditions that existed before the accident, and under the law that’s not proper.” 49 See Cal Wadsworth Constr. v. City of St.

2013George, 898 P.2d 1372 , 1378–79 (Utah 1995) (“An error is harmful if it is reasonably likely that the error affected the outcome of the proceedings.”). 50 Tingey, 1999 UT 68, ¶ 16 . 17 HARRIS v. SHOPKO Opinion of the Court attributable to her preexisting conditions.

2013We accordingly conclude that whether a preexisting condition is symptomatic or asymptomatic on the date of the accident is not the determinative factor in granting an apportionment instruction.25 tort liability generally, a finding of proximate cause must be made by the trier of fact before an award for damages is granted.”). 23 See, e.g., Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175 , 1192– 93 (9th Cir. 2002) (discussing the eggshell plaintiff doctrine and recognizing that “[t]he defendant of course is liable only for the extent to which the defendant’s conduct has resulted in an aggravatio

2013Ct. 1992) (same). 42 Cf. Bowman v. Kalm, 2008 UT 9, ¶ 7 , 179 P.3d 754 (stating that the “general requirement in medical malpractice cases that the element of proximate cause be supported by expert testimony” is grounded in the idea that “the causal link between the negligence and the injury [is] usually not within the common knowledge of the lay juror”). 14 Cite as: 2013 UT 34 Opinion of the Court apportionment instruction to be given.

2013Ct. 1992) (same). 42 Cf. Bowman v. Kalm, 2008 UT 9, ¶ 7 , 179 P.3d 754 (stating that the “general requirement in medical malpractice cases that the element of proximate cause be supported by expert testimony” is grounded in the idea that “the causal link between the negligence and the injury [is] usually not within the common knowledge of the lay juror”). 14 Cite as: 2013 UT 34 Opinion of the Court apportionment instruction to be given.

2004Wasatch argues that the court of appeals erred in basing its rejection of this legal argument on Wasatch's failure to marshal the evidence. "[T]he marshaling requirement applies only to challenges of factual findings, not to conclusions of law." Peirce v. Peirce, 2000 UT 7 , ¶ 17 n. 4, 994 P.2d 193 .

2004Wasatch argues that the court of appeals erred in basing its rejection of this legal argument on Wasatch's failure to marshal the evidence. "[T]he marshaling requirement applies only to challenges of factual findings, not to conclusions of law." Peirce v. Peirce, 2000 UT 7 , ¶ 17 n. 4, 994 P.2d 193 .