KIRK HARTMAN, Individually, and as Surviving Spouse of Sheri Hartman; KIRK HARTMAN, as Personal Representative of the Estate of Sheri Hartman; ASHLEY HARTMAN ROBERTS; JORDAN HARTMAN; And JOSH HARTMAN, Adult Children of Sheri Hartman v. POCATELLO HOSPITAL, LLC, a Delaware Limited Liability Company Dba PORTNEUF MEDICAL CENTER, LLC; DR. AMBER SCHROEDER, P.A.; DR. WILLIS PARMLEY, ROCKY MOUNTAIN PHYSICIAN GROUP, LLC; DR. STEPHEN HANSEN, IDAHO SPORTS AND SPINE, LLC
CourtIdaho Supreme Court
Date FiledJune 1, 2026
Docket52101
StatusPublished
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Full Opinion
IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 52101
KIRK HARTMAN, individually, and as )
surviving spouse of Sheri Hartman; KIRK )
HARTMAN, as Personal Representative of the )
Estate of Sheri Hartman; ASHLEY )
HARTMAN ROBERTS, adult daughter of )
Sheri Hartman, deceased; JORDAN )
HARTMAN, adult son of Sheri Hartman, )
deceased; JOSH HARTMAN, adult son of )
Sheri Hartman, deceased, )
)
Plaintiffs-Appellants, ) Boise, February 2026 Term
)
v. ) Opinion Filed: June 1, 2026
)
POCATELLO HOSPITAL, LLC, a Delaware ) Melanie Gagnepain, Clerk
limited liability company dba PORTNEUF )
MEDICAL CENTER, LLC; DR. AMBER )
SCHROEDER, P.A.; DR. WILLIS )
PARMLEY, ROCKY MOUNTAIN )
PHYSICIAN GROUP, LLC; DR. STEPHEN )
HANSEN, IDAHO SPORTS AND SPINE, )
LLC, )
)
Defendant-Respondents. )
_______________________________________ )
Appeal from the District Court of the Sixth Judicial District of the State of Idaho,
Bannock County. Rick Carnaroli, District Judge.
The district court’s amended judgment is affirmed in part and vacated in part; the
district court’s summary judgment order is reversed in part and affirmed in part;
the district court’s substitute decision and order is affirmed; and the case is
remanded for further proceedings.
Barton Atkinson & Murdoch, P.C., Rexburg, and DeFriez Law, Caldwell, for
Appellants. Marcia Murdoch, argued.
Tolman Brizee & Cannon, PC, Twin Falls, attorney for Portneuf Medical Center,
LLC. Nicole L. Cannon, argued.
Hawley Troxell Ennis & Hawley, LLP, Pocatello, attorney for Respondents
Stephen Hansen, M.D., and Idaho Sports and Spine, LLC. Mindy M. Muller,
argued.
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Quane McColl Metz, PLLC, Boise, attorney for Respondents Dr. Willis Parmley,
Amber Schroeder, P.A., and Rocky Mountain Physician Group, LLC. Vala L.
Metz, argued.
____________________
BRODY, Justice
In this medical malpractice action, the Hartman family appeals the district court’s
imposition of discovery sanctions and its entry of summary judgment in favor of the medical
providers who prescribed or administered transdermal fentanyl patches to Sheri Hartman,
ultimately leading to her death. This appeal presents two questions. First, whether a plaintiff in a
medical malpractice action must disclose the identities of non-testifying local standard‑of‑care
experts when the plaintiff’s testifying experts rely “primarily” on a defendant’s deposition
testimony to establish familiarity with the local standard of care. Second, whether summary
judgment is properly awarded to defendant medical providers when a plaintiff fails to rebut a
defendant’s evidence that the precise pharmacokinetic mechanism of injury was not foreseeable
to the providers.
Consistent with our holding in Quigley v. Kemp, 162 Idaho 408, 412, 398 P.3d 141, 145
(2017), we reiterate that the identity of a non-testifying local standard-of-care expert must be
disclosed as part of expert‑witness discovery. A plaintiff’s failure to make this disclosure may
result in discovery sanctions, including the exclusion of the plaintiff’s expert witnesses, as
occurred here. See generally I.R.C.P. 37(c)(1). We further hold that, to withstand summary
judgment on the issue of proximate causation, a medical‑malpractice plaintiff must demonstrate
that a reasonable medical provider in a defendant’s position would have foreseen the general risk
of harm arising from the allegedly negligent treatment, not the specific mechanism of injury
through which the harm ultimately occurred. See generally Orthman v. Idaho Power Co., 130
Idaho 597, 601, 944 P.2d 1360, 1364 (1997).
Because the district court acted consistently with Quigley, we affirm its order striking the
Hartmans’ expert witnesses based on their failure to timely disclose the non-testifying local
standard-of-care experts on whom their out‑of‑state experts relied. However, the district court
erred in granting summary judgment to the emergency department providers and to Portneuf
Medical Center (“PMC”) on the ground that the Hartmans failed to controvert the defense’s expert
testimony that no fentanyl from the patch they dispensed and administered would have remained
in Mrs. Hartman’s system at the time of her death. We therefore reverse the district court’s grant
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of summary judgment on causation and remand for further proceedings against PMC since the
claim against the hospital is the only one that remains after we affirmed the district court’s
discovery sanctions.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Kirk Hartman took his wife, Sheri, to the emergency department at PMC on the afternoon
of November 16, 2019, because she was experiencing severe back pain. Physician Assistant Amber
Schroeder (“PA Schroeder”) treated Mrs. Hartman, diagnosing her with “[c]hronic midline low
back pain without sciatica.” Mrs. Hartman had a history of back pain due to a “bulging disc,” but
her pain was “more severe” on this occasion. PA Schroeder administered Dilaudid and Valium to
Mrs. Hartman, which appeared to resolve her pain. PA Schroeder discharged Mrs. Hartman with
a prescription for hydrocodone-acetaminophen to manage future pain.
The following morning, Mrs. Hartman returned to the emergency department, this time by
ambulance. PA Schroeder again diagnosed Mrs. Hartman with “[c]hronic midline low back pain
without sciatica.” PA Schroeder ordered an MRI, which revealed “disc protrusion/extrusion . . .
exhibit[ing] mass effect on the descending right S1 nerve root.” During this second visit, PA
Schroeder administered two Dilaudid injections and also placed a transdermal fentanyl patch,
which is marketed under the brand name Duragesic. PA Schroeder consulted with PMC’s on-call
pharmacist, Susan Wilson, who ultimately dispensed the patch. Mr. Hartman later testified in a
deposition that, once the patch was placed on Mrs. Hartman, they “were told by the ER that [they]
needed to get more [f]entanyl patches” from Mrs. Hartman’s primary care physician. At the time,
Mrs. Hartman was regularly taking escitalopram, a prescription antidepressant. On both of Mrs.
Hartman’s visits to the emergency department, PA Schroeder operated under the supervision of
Dr. Willis Parmley, a board-certified emergency medicine physician who practices at PMC as an
independent contractor through Rocky Mountain Physician Group, LLC (“RMPG”).
Two days after her second visit to the emergency department, Mrs. Hartman was seen by
Dr. Stephen Hansen, an orthopedic surgeon, at Idaho Sports and Spine. At that time, Mrs. Hartman
was still wearing the fentanyl patch applied by PA Schroeder at PMC. Dr. Hansen observed that,
despite the fentanyl patch, Mrs. Hartman was “still . . . doubled over in pain.” He discussed options
for surgical intervention with Mrs. Hartman, and she agreed to surgery. Mr. Hartman commented
to Dr. Hansen that he thought the fentanyl patches were effectively managing his wife’s pain and
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that they “were told by the ER that [they] needed to get more [f]entanyl patches.” Dr. Hansen
prescribed Mrs. Hartman eight additional fifty-microgram (50 mcg) transdermal fentanyl patches
to manage her pain until he could perform surgery.
Mr. Hartman testified that he operated under the belief, based on the “instructions from the
manufacturer[,]” and instructions he received from “Amber [Schroeder] or a nurse” in the
emergency department that a new patch needed to be applied to his wife every seventy-two hours.
Mr. Hartman further testified that at 2:00 p.m. on November 20, he applied a new fentanyl patch—
the first of the eight prescribed by Dr. Hansen—after removing the one PA Schroeder had applied
in the emergency department. He also “put tape around the edges” of the new patch and wrote the
date and time of application on its face. Mr. Hartman applied a new patch—the second of the eight
prescribed by Dr. Hansen—on his wife’s arm on November 23. Mrs. Hartman passed away in the
early morning hours of November 25. Her death certificate lists “respiratory depression,” “acute
fentanyl intoxication,” and “fentanyl overdose,” as causes of death.
B. Procedural Background
In May 2021, Mr. Hartman and the Hartmans’ children filed this suit, asserting medical
malpractice claims against Dr. Parmley, PA Schroeder, and their medical group, RMPG
(collectively the “Emergency Providers”); Dr. Hansen and Idaho Sports and Spine (collectively
the “Orthopedic Surgeon”); Dr. Austin Meyers (Mrs. Hartman’s primary care physician who has
since been dismissed from this case); and PMC. They also brought claims for violations of Idaho’s
informed consent laws. The district court later allowed the Hartmans to amend their complaint to
include an additional claim against PMC for the alleged negligence of its in-house pharmacist,
Susan Wilson, based on her dispensing of the fentanyl patch administered to Mrs. Hartman by PA
Schroeder.
In August and July 2021, the medical providers separately served their first discovery
requests on the Hartmans, which requested that the Hartmans “identify each person [they] may
call as an expert witness at the trial” and to “state the substance of their opinions on which the
expert is expected to testify” in accordance with Idaho Rule of Civil Procedure 26(b)(4)(A)(i) and
(ii). The Emergency Providers specifically requested that the Hartmans disclose any physician or
other healthcare provider with whom their expert witnesses have consulted “to become familiar
with the applicable local standard of health care practice for any provider in this case.” The
Hartmans declined to respond to these requests, instead assuring the Emergency Providers that
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they would “supplement” their responses at a later date. The district court’s scheduling order
provided that the Hartmans had until January 19, 2023—or 180 days prior to trial—to disclose this
information.
On January 19, 2023, the Hartmans disclosed out-of-state experts Paul McHale, M.D. (to
speak to the care Dr. Parmley provided) and James Keller, P.A. (to speak to the care PA Schroeder
provided), along with each expert’s report. However, they again declined to disclose the non-
testifying local standard‑of‑care experts on whom these experts relied upon to become familiar
with the applicable standard of care in Pocatello. Instead, the Hartmans stated that they intended
to “seek a protection order from the court under . . . [Rule 26(b)(4)(D)] from disclosing the
information to [Defendants].” The same day, the Hartmans also disclosed an out‑of‑state expert,
Frank Petkovich, M.D., who would address the care provided by Dr. Hansen, along with his report.
But they similarly declined to disclose any non-testifying local standard‑of‑care experts on whom
Dr. Petkovich may have relied. The Hartmans also disclosed causation experts John Wurpel, M.S.,
Ph.D., a pharmacologist, and Paul Uribe, M.D., a forensic pathologist, whose disclosures were not
challenged.
About ten months later, in October 2023, the Hartmans moved the district court for a
protection order approving their refusal to disclose the non-testifying local standard-of-care
experts. The Hartmans’ memorandum in support of the motion elaborated that their local standard-
of-care experts requested the order out of “a serious concern of retribution in their employment,
insurance premiums, and/or licensure with the Board of Medicine all because they were willing to
discuss the standard of care with the plaintiffs’ retained experts.” A few days later, the Emergency
Providers, citing Rules 16(e) and 37(c) of the Idaho Rules of Civil Procedure, moved to strike the
Hartmans’ liability experts based on their failure to disclose the non-testifying local standard-of
care experts upon whom the expert witnesses relied in forming their opinions.
The district court considered the Hartmans’ motion for a protective order and the
Emergency Providers’ motion to strike at a hearing in November 2023. With respect to the motion
for a protective order, the district court denied that motion based on its perceived lack of “a factual
basis” to support a finding of good cause. As to the motion to strike, the Hartmans argued that a
local standard-of-care expert was not necessary because their experts relied on Dr. Parmley’s
deposition testimony in which “he outlined what the standard of care was.” The Hartmans
contended that Dr. Parmley, who was board certified in emergency medicine, testified during his
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deposition that there was no difference in the standard of care in emergency medicine in Pocatello
and nationally.
The Hartmans previously relied on this testimony in a motion for partial summary
judgment in which they asked the court to affirmatively rule “that the plaintiff’s expert can reply
[sic] upon Defendant Willis Parmley’s response in his deposition that there are no deviations in
the standard of care in Pocatello, Idaho in 2019 as it applied to a board-certified emergency room
physician.” The district court declined to rule on that issue because, in its view, the Hartmans were
improperly “asking [the] [c]ourt to rule on a foundational evidentiary issue through a summary
judgment motion.” The Hartmans re-presented this argument for the purposes of opposing the
Emergency Providers’ motion to strike, again arguing that they were not required to disclose their
non-testifying local standard-of-care expert because their liability experts relied on the deposition
testimony of Dr. Parmley to familiarize themselves with the local standard of care:
Defendant Parmley’s own statements can be used by the plaintiffs’ expert,
and in deed [sic], were used by the expert to help determine the standard of care.
Dlouhy v. Kootenai Hosp. Dist., 167 Idaho 639, 474 P.3d 711 (2020). Regardless
if the [sic] Dr. McHale’s report doesn’t identify the local consultant, “an affidavit
that fails to identify an anonymous consultant does not categorically fail to comply
with the foundation requirements for admissibility of an out-of-area expert’s
testimony under Idaho Code section 6-1013.” Bybee v. Gorman, 157 Idaho 169,
178, 157 P.3d 14, 23 (2014). As such, the failure of the Plaintiffs’ expert regarding
the statement of the local consultant’s identity, by itself, required [sic] at this point
of the case as it pertains to Defendant Parmley. Defendants know this to be the case,
but they are seeking to obtain a sanction without supporting the requirements to
support such a severe sanction.
The district court took the motion to strike under advisement in order “to take a closer look
at” whether the “drastic remedy to strike a witness” was warranted in this case. Immediately after
the hearing, the Hartmans filed notice with the district court that they had disclosed the identity
and contact information of their non-testifying local standard-of-care experts.
The district court subsequently issued an order granting the Emergency Providers’ motion
to strike the Hartmans’ liability experts pursuant to Rules 16(e) and 37(c) of the Idaho Rules of
Civil Procedure. In doing so, the district court noted that the parties stipulated to the scheduling
order, and that the order adopting their stipulated schedule required the Hartmans to disclose their
non-testifying local standard-of-care experts by January 19, 2023 (180 days prior to trial). The
district court also found that because the disclosure of the Hartmans’ non-testifying local standard-
of-care experts was required by the Idaho Rules of Civil Procedure, the Hartman’s disclosures
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were “incomplete” under the rules. Significantly, the district court also found the Hartmans
intentionally failed to timely disclose this information.
Following the district court’s decision to grant the Emergency Providers’ motion to strike,
Dr. Hansen (the orthopedic surgeon) followed suit and moved to strike the Hartmans’ liability
expert, Dr. Petkovich, who sought to testify about the care Dr. Hansen provided to Mrs. Hartman.
The district court granted this motion on the same grounds, namely, the Hartmans’ intentional
failure to timely and completely disclose the identity of the non-testifying local standard-of-care
expert in accordance with the scheduling order and the Idaho Rules of Civil Procedure. Although
the Hartmans moved the district court to reconsider both orders, the district court denied their
motions, stating “[o]nce again the [c]ourt concludes that it must treat Plaintiffs’ evasive and
incomplete discovery response and expert witness disclosure as failure to respond to discovery or
to disclose under the Amended Scheduling Order.”
After granting the two motions to strike, the district court proceeded to rule on two
summary judgment motions. The first, advanced by the Emergency Providers and joined by PMC,
contended that the testimony of Dr. Wurpel and Dr. Uribe, the Hartmans’ causation experts, was
inadmissible; therefore, it could not create a genuine issue of material fact that “the single 72-hour
[f]entanyl patch ordered by PA Schroeder on November 17, 2019,” was the proximate or actual
cause of Mrs. Hartman’s death several days later. The second motion, brought by the Emergency
Providers and the Orthopedic Surgeon, contended that the striking of the Hartmans’ liability
experts as a sanction for the discovery violations was fatal to their medical malpractice and
informed consent claims. The district court granted both motions.
As to the first motion for summary judgment concerning causation, the district court agreed
that the Hartmans “have offered no expert testimony that raises a genuine issue of material fact
concerning whether the single [f]entanyl patch prescribed and administered by [the Emergency
Providers] on November 17, 2019, proximately caused or contributed to Mrs. Hartman’s accidental
[f]entanyl overdose and her resulting death.”
On the second summary judgment motion, the district court ruled that the Hartmans had
“failed to frame a genuine issue of material fact as to their medical malpractice and informed
consent claims” because they could not offer admissible expert testimony showing that these
providers “breached the applicable community standards of health care when treating Mrs.
Hartman or in obtaining her informed consent.” The district court dismissed all the Hartmans’
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claims, except for the informed consent claim against PMC, because PMC had not yet moved for
summary judgment on that claim.
The Hartmans filed a timely notice of appeal. The district court subsequently entered an
amended judgment, certifying the judgment as final in accordance with Idaho Rule of Civil
Procedure 54(b)(1). The district court stayed adjudication of the informed consent claim during
the pendency of this appeal.
II. STANDARDS OF REVIEW
The imposition of sanctions for a party’s violation of the rules of discovery is committed
to the district court’s discretion. Gem State Roofing, Inc. v. United Components, Inc., 168 Idaho
820, 830, 488 P.3d 488, 498 (2021) (citing State Ins. Fund v. Jarolimek, 139 Idaho 137, 138, 75
P.3d 191, 192 (2003)). This Court reviews a district court’s decision to impose sanctions to
determine whether it is supported by substantial and competent evidence and whether the court
otherwise abused its discretion. Id. (citing Easterling v. Kendall, 159 Idaho 902, 909, 367 P.3d
1214, 1221 (2016)).
Accordingly, we review a district court’s decision to impose discovery sanctions under a
four-part inquiry, which considers “[w]hether the trial court: (1) correctly perceived the issue as
one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with
the legal standards applicable to the specific choices available to it; and (4) reached its decision by
the exercise of reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3 187, 194 (2018)
(citations omitted).
Next, Rule 56 of the Idaho Rules of Civil Procedure allows for a grant of summary
judgment when “the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a). “When considering whether the
evidence shows a genuine issue of material fact, the trial court must liberally construe the facts,
and draw all reasonable inferences in favor of the nonmoving party.” Fragnella v. Petrovich, 153
Idaho 266, 271, 281 P.3d 103, 108 (2012) (citation omitted). To establish that a genuine dispute
of material fact exists, a party must present evidence upon which a jury could reasonably rely; a
“mere scintilla of evidence or merely casting a slight doubt of the facts” will not suffice. Id.
(citation omitted). We review a district court’s grant of a motion for summary judgment under “the
same standard of review used by the district court originally ruling on the motion.” Id. (citation
omitted).
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III. ANALYSIS
A. The district court did not abuse its discretion by striking the Hartmans’ expert
witness testimony.
The Hartmans insist that the dispositive issue in their appeal of the district court’s ruling
on the motions to strike is whether their expert witnesses could rely on the deposition testimony
of the defendant medical providers to obtain actual knowledge of the local standard of care. In
their view, the district court erred by focusing exclusively “on the undisclosed identities of [their]
consultants.” And because those local consultants were not “the primary basis through which their
experts familiarized themselves” with the local standard of care, the Hartmans maintain that their
discovery and scheduling violations should not have been “controlling” when the district court
ruled on the motions to strike.
The Defendants take the opposite position. They assert that the district court struck the
Hartmans’ experts as a sanction for failing to comply with their discovery obligations and the
expert‑disclosure requirements of the scheduling order. In their view, the disclosures omitted
crucial information about the bases of the experts’ opinions, even when those opinions relied, in
whole or in part, on non‑testifying local standard‑of‑care experts.
We conclude that the district court did not abuse its discretion in striking the Hartmans’
expert witnesses under the Idaho Rules of Civil Procedure. At bottom, this issue concerns a
discovery dispute, not the admissibility of expert testimony. At least two of the Hartmans’ experts
relied on non-testifying local standard-of-care experts to familiarize themselves with the applicable
standard of care for prescribing narcotics in Pocatello at the time of Mrs. Hartman’s treatment.
Whether those consultants were the primary or secondary source informing the testifying experts’
opinions is immaterial. The Idaho Rules of Civil Procedure require disclosure of the identity of
these non-testifying experts regardless of the extent to which they informed the experts’ opinions.
And when that obligation is disregarded, the district court is authorized to impose sanctions,
including the striking of those experts, even if that decision will ultimately result in the failure of
a plaintiff’s case. Accordingly, we affirm the district court’s decision to do so in this case.
Like its federal analogue, the discovery procedures of Rule 26 of the Idaho Rules of Civil
Procedure are intended to “make a trial less a game of blind man’s bluff and more a fair contest
with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter
& Gamble Co., 356 U.S. 677, 682 (1958) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).
The universe of discoverable “matter” extends to “any nonprivileged matter that is relevant to any
9
party’s claim or defense, including . . . the identity and location of persons who know of any
discoverable matter.” I.R.C.P. 26(b)(1)(A).
When a party intends to offer expert testimony, Rule 26 permits the opposing party to
obtain, through an interrogatory, the expert’s identity and specified information related to the
anticipated testimony, including the “basis and reasons” for the expert’s opinion and any “data or
other information” the expert considered. I.R.C.P. 26(b)(4)(A)(i); see Lands v. Sunset Manor, LP,
173 Idaho 658, 668, 546 P.3d 670, 680 (2024). In a medical malpractice action, Rule 26(b)(4)(A)(i)
requires the plaintiff to disclose “the names of any non-testifying medical experts who provide
information concerning the local standard of care.” Quigley v. Kemp, 162 Idaho 408, 412, 398 P.3d
141, 145 (2017). A party cannot avoid this obligation simply because their expert witness did not
primarily rely on the non-testifying local standard of care expert to become acquainted with the
local standard of care. The plain language of Rule 26(b)(4)(A)(i) draws no such distinction. Rather,
when a testifying expert relies, to any degree, on consultation with a local standard-of-care expert,
the identity of that expert must be disclosed as part of both the “basis and reasons” for the opinion
and the “data and information” considered. See Quigley, 162 Idaho at 412, 398 P.3d at 145.
Rule 37 provides district courts with the enforcement mechanisms necessary to effectuate
this Court’s “admonition that discovery should not be a game played by lawyers.” Gem State
Roofing, Inc. v. United Components, Inc., 168 Idaho 820, 829, 488 P.3d 488, 497 (2021).
Ordinarily, trial courts will exercise their Rule 37 authority to sanction parties that unjustifiably
resist discovery requests, but the ultimate decision to do so is discretionary. State Ins. Fund v.
Jarolimek, 139 Idaho 137, 138–39, 75 P.3d 191, 192–93 (2003). When a party’s resistance takes
the form of a failure to disclose or to supplement a disclosure under the trial court’s scheduling
order, Rule 37 provides that the offending party “is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” I.R.C.P. 37(c)(1). Alternatively, the trial court may impose more severe
sanctions “on motion and after giving an opportunity to be heard,” including staying further
proceedings until compliance is achieved, dismissing the action in whole or in part, or entering a
default judgment against the offending party. I.R.C.P. 37(c)(1)(B), (b)(2)(A)(iv)–(vi).
Finally, Rule 16 empowers the trial court to “establish[] timetables by which the case
should proceed.” See 6A Wright & Miller’s Federal Practice & Procedure § 1522.1 (3d ed. 2025)
(discussing Fed. R. Civ. P. 16). In particular, the trial court may set deadlines for completing
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discovery, including the disclosure of expert witnesses. I.R.C.P. 16(a)(2)(B). When a party fails to
comply with these deadlines, the district court may impose sanctions. I.R.C.P. 16(e). These
sanctions may include any of those listed in Rule 37(b)(2)(A) or any other sanction the court deems
appropriate. I.R.C.P. 16(e)(2) (“The court may make such orders as are just, and may, along with
any other sanction, make any of the orders allowed under Rule 37(b)(2)(A).”).
In this case, the district court’s scheduling order required the Hartmans to disclose their
expert witnesses under Rule 26(b)(4) by January 19, 2023:
1. 180 days prior to trial, plaintiffs shall disclose each person plaintiffs
intend to call as an expert witness at trial, the subject matter on which the expert is
expected to testify and all information required by Rule 26(b)(4) of the Idaho Rules
of Civil Procedure.
In July 2021, the Orthopedic Surgeon requested, via interrogatory, that the Hartmans identify their
expert witnesses and provide the information incident to their testimony required by Rule
26(b)(4)(A)(i) and (ii). The Emergency Providers made the same request the following month,
specifically requesting that the Hartmans disclose any physician or other healthcare provider with
whom their expert witnesses have consulted “to become familiar with the applicable local standard
of health care practice for any provider in this case.”
The Hartmans responded in December 2021 that they would provide a supplementary
response with the information requested “upon completion of their expert reviews and reports.”
On January 19, 2023—the deadline for expert witness disclosure—the Hartmans disclosed their
experts: Dr. McHale (who would testify about Parmley’s breach of standard of care), PA Keller
(who would testify about PA Schroeder’s breach of standard of care), and Dr. Petkovich (who
would testify about Dr. Hansen’s breach of standard of care). Each of these experts reside and
practice medicine outside of Idaho. The Hartmans did not disclose the identities of their non-
testifying local experts who consulted with these out-of-state experts; instead, they notified the
Defendants that they would seek a protective order to avoid doing so.
The district court found that the Hartmans intentionally omitted “information particular to
the identification of [their] local consulting experts,” in violation of both the court’s scheduling
order and Rule 26(b)(4)(A)(i). The district court further found that their omission had no
“substantial justification,” and that the consequences of the incomplete disclosure prejudiced the
Emergency Providers and Orthopedic Surgeon. Relying on Rules 16(e) and 37(c), the district court
11
struck the testimony of Dr. McHale, PA Keller, and Dr. Petkovich as a sanction for the Hartmans’
failure to comply with the discovery rules and scheduling order.
Perceiving the matter before it as a Rule 26 violation, the district court acted within its
discretion and consistent with the enforcement tools granted by Rules 16 and 37. To begin, the
Hartmans had no legal basis upon which to refuse to disclose the identity of the non-testifying
local standard-of-care experts—the district court found their motion for a protective order entirely
without merit, and it rightfully dismissed the Hartmans’ contention that the Defendants’ motions
to strike should have been preceded by motions to compel. See Clark v. Klein, 137 Idaho 154, 158
n.1, 45 P.3d 810, 814 n.1 (2002) (holding that “the district court abused its discretion in indicating
that a motion to compel is required by the party seeking exclusion of an expert witness for
noncompliance with Rule 26”).
On appeal, the Hartmans advance a novel argument challenging the district court’s ruling
on the Defendants’ motions to strike:
The District Court should not have focused solely on the undisclosed identities of
the Hartmans’ consultants, as that ignored the primary basis through which their
experts familiarized themselves in the matter. Any non-disclosure of consultants
should have been a secondary consideration; it certainly should not have been
controlling when it came to familiarization through review of transcripts.
Put differently, the Hartmans contend that, because their experts primarily relied on the
Defendants’ deposition testimony to familiarize themselves with the local standard of care, they
had no obligation under Rule 26(b)(4)(A)(i) to disclose the identities of their non-testifying local
standard-of-care experts, who purportedly provided only secondary information on the local
standard of care. This argument contradicts the plain language of Rule 26. Nowhere does the rule
distinguish between primary and secondary “bas[es],” “reasons,” “data,” or “other information,”
let alone excuse disclosure based on the degree to which a testifying expert relies on them in
forming an opinion. To the contrary, Rule 26(b)(4)(A)(i) imposes a broad mandate: it requires “a
complete statement of all opinions to be expressed and the basis and reasons for the opinion” and
“the data or other information considered by the witness in forming the opinions[.]” I.R.C.P.
26(b)(4)(A)(i) (emphasis added). The repeated use of the definite article in these commands
confirms that both “the basis and reasons” and “the data or other information” extends to all such
information, regardless of its relative weight in supporting the expert’s opinion. Consistent with
this language, we decline to find that the district court abused its discretion by refusing to consider
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whether the Hartmans’ local experts were the primary or secondary source of information
regarding the local standard of care in evaluating the propriety of discovery sanctions.
The Hartmans further attempt to obscure their disclosure obligations by relying on Phillips
v. Eastern Idaho Health Services., Inc., 166 Idaho 731, 463 P.3d 365 (2020). There, we held that
“the identity of local consulting physicians is discoverable under [Rule] 26(b)(1)(A)’s general
scope of discovery.” Id. at 745, 463 P.3d at 379. The Hartmans interpret this statement to mean
that Phillips “take[s] the disclosure of local consultants . . . outside the realm of mandatory expert
disclosures under [Rule] 26(b)(4)(A)(i), or scheduling order violations under [Rule] 16, and puts
it squarely in the realm of ordinary fact discovery.” Under that reading, the Hartmans contend that
the eventual disclosure of their local consultants complied with the more generous deadline
applicable to “general supplementation under the Scheduling Order,” and that the district court
erred in imposing sanctions pursuant to Rules 16 and 37, following the example of Easterling v.
Kendall, 159 Idaho 902, 367 P.3d 1214 (2016) (affirming the district court’s imposition of Rule
37 sanctions against plaintiff who failed to timely and sufficiently disclose expert witness in
accordance with scheduling order and Rule 26(b)(4)(A)).
The Hartmans’ argument misapprehends this Court’s caselaw regarding a medical-
malpractice plaintiff’s disclosure obligations under Rule 26(b)(4)(A). For starters, the statement in
Phillips that “the identity of local consulting physicians is discoverable under [Rule] 26(b)(1)(A)’s
general scope of discovery” derives from Quigley, which should have been the Hartmans’ starting
point. In Phillips, this Court considered whether the plaintiff in a medical-malpractice action could
depose a local consultant. 166 Idaho at 745, 463 P.3d at 379. By contrast, Quigley addressed the
more directly relevant question of whether Rule 26(b)(4)(B) protects the identity of a non-
testifying local standard of care expert in a medical malpractice action and held that it did not. 162
Idaho at 410, 398 P.3d at 143.
In Phillips, we held, consistent with Rule 26(b)(4)(D)(ii), that a non-testifying local
standard of care expert cannot be deposed absent “a showing of exceptional circumstances under
which it is impracticable for the party to obtain facts or opinions on the same subject by other
means.” 166 Idaho at 746, 463 P.3d at 380 (citation modified) (quoting I.R.C.P. 26(b)(4)(D)(ii)).
In reaching that holding, the Court relied on a fragment of the holding in Quigley to clarify that,
while a local consultant may not be deposed absent exceptional circumstances, their identity
remains discoverable under Rule 26(b)(1)(A). Id. at 745–46, 463 P.3d at 379–80. But Phillips
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omitted an equally important—though less relevant to the deposition issue in that case—holding
in Quigley regarding the role of a local expert in the formation of a testifying expert’s opinion:
Our discovery rules require a testifying witness to disclose the basis and reasons
for all opinions and all of the data and information considered by the witness in
forming the opinions. See I.R.C.P. 26(b)(4)(A)(i) (2015). This requirement fairly
encompasses the names of any non-testifying medical experts who provide
information concerning the local standard of care.
Quigley, 162 Idaho at 412, 398 P.3d at 145.
The Hartmans attempt to read Quigley through Phillips to evade this important rule. But a
more careful reading of Quigley instructs that the identity of a non-testifying local expert is both
discoverable as a general matter under Rule 26(b)(1)(A) and subject to the disclosure requirements
of Rule 26(b)(4)(A)(i) because they provide important input into the formation of the testifying
expert witness’s opinion. Quigley, 162 Idaho at 412, 398 P.3d at 145. Phillips, addressing an
entirely unrelated question, does not change the dual nature of our holding in Quigley; the
Hartmans were required to disclose the identity of their non-testifying local experts. Accordingly,
the district court had reason to follow the example of Easterling in striking the expert testimony
in light of the Hartmans’ violations of Rule 26(b)(4) and the deadlines set forth in the district
court’s scheduling order. The Hartmans’ reading of Quigley, filtered through Phillips, does not
alter this conclusion.
Next, the Hartmans rely on Bybee v. Gorman, 157 Idaho 169, 335 P.3d 14 (2014), to
suggest that the district court erred in striking their expert testimony because “the failure of a party
to identify their testifying expert’s local consultants is not fatal to the admissibility of the proposed
expert’s testimony.” But the present case has little to do with admissibility and everything to do
with the rules of discovery. While Bybee may have held that “an affidavit that fails to identify an
anonymous consultant does not categorically fail to comply with the foundation requirements for
admissibility of an out-of-area expert’s testimony under Idaho Code section 6–1013,” it says
nothing about a district court’s authority to exclude testimony as a sanction for a party’s violations
of discovery rules. Id. at 178, 335 P.3d at 23. Put simply, Bybee is inapt.
Lastly, the Hartmans made a last-ditch effort at oral argument to excuse their failure to
timely disclose local consultants by citing language in the second stipulated scheduling order
stating: “The parties agree plaintiffs have fully disclosed their standard of care experts.” The
Hartmans contend this language relieved them of their obligation to disclose the identity of their
non-testifying local standard-of-care experts in accordance with Rule 26(b)(4)(A)(i). We decline
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to consider this argument because it appears to have been raised only briefly at a January 8, 2024,
hearing before the district court and it was not addressed at all in the Hartmans’ opening or reply
briefs on appeal to this Court. Therefore,