CONSIDERED ON BRIEFS ON NOVEMBER 12, 2018
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA THE HONORABLE MICHELLE K. COMER
L. CLAGGETT of Claggett & Dill, Prof. LLC Spearfish,
South Dakota Attorneys for plaintiff and appellant.
HEATHER LAMMERS BOGARD of Costello, Porter, Hill,
Heisterkamp, Bushnell & Carpenter, LLP Rapid City, South
Dakota Attorneys for defendant and appellee Andrew Cory
JEFFERY D. COLLINS of Lynn, Jackson, Shultz, & Lebrun,
P.C. Rapid City, South Dakota Attorneys for defendant and
appellee Jason Utecht.
In this personal injury action following a car accident,
plaintiff Robert Cooper obtained default judgments against
defendants Jason Utecht and Andrew Brownell. Thereafter,
Defendants filed a motion to set aside the default judgments,
which the circuit court granted. Defendants later moved for
summary judgment, arguing that Cooper could not prove
causation absent an expert opinion showing his injuries were
caused by the collision. The circuit court granted
Defendants' motion and dismissed Cooper's suit.
Cooper appeals. We affirm.
and Procedural History
While Cooper was stopped at an intersection in Deadwood in
2009, a vehicle driven by Utecht collided with a vehicle
driven by Brownell. The collision caused Brownell's
vehicle to strike the front bumper of Cooper's vehicle.
Cooper claimed the impact caused him to hit his head between
the driver's door and passenger's door with such
force it rendered him unconscious. Cooper was transported by
ambulance to the Lead-Deadwood Hospital, where he was treated
and released after approximately four hours. The record does
not disclose the treatment Cooper received at the hospital.
In September 2012, Cooper brought suit against Utecht and
Brownell, alleging he "sustained personal injuries as a
result of" the accident. Cooper sought to recover for
medical bills and other expenses, as well as damages for past
and future pain and suffering he claimed arose from the
accident. Cooper served Brownell with a summons and complaint
on September 28, 2012. Utecht was served on October 26, 2012.
Neither Brownell nor Utecht filed an answer.
In August 2014, Cooper obtained new counsel and moved for a
default judgment against Brownell and Utecht. He did not
serve notice of the motion on either defendant. On September
25, the circuit court entered findings of fact, conclusions
of law, and a default judgment in the amount of $403, 848.68
against both Defendants. The award included Cooper's
filing fees, service fees, costs, medical and counseling
expenses, future medical bills and expenses, and future
counseling expenses. The amount also included damages for
permanent injuries, past and future pain and suffering, and
After receiving notice of the entry of the default judgment,
Brownell and Utecht filed separate motions to set the
judgment aside. Brownell claimed Cooper's previous
attorney had informed him that he need not worry about filing
an answer because Cooper's suit was more directed at
Utecht as the negligent driver. Utecht claimed his attorney
had obtained an open-ended extension from Cooper's
previous attorney to file an answer. Cooper stipulated to
setting aside the default judgment against Utecht, subject to
Cooper's right to contest the issue in the future or on
appeal. However, he resisted Brownell's motion. After the
hearing, the court entered an order setting aside the default
judgment against Brownell. The court also entered an order
setting aside the default judgment against Utecht pursuant to
the parties' stipulation.
Utecht filed an answer denying liability and asserting
multiple affirmative defenses. Brownell did not file an
answer but engaged in discovery and began actively defending
the case. A trial date was set for March 2018. In February
2018, Brownell filed a motion for summary judgment, which
Utecht joined. Defendants noted Cooper had not disclosed an
expert witness by the disclosure deadline. According to
Defendants, Cooper's failure to identify an expert and
disclose expert opinions was fatal to his claim because an
expert was necessary to establish the causal relationship
between this accident and Cooper's injuries.
In response, Cooper relied on his personal deposition
testimony and his medical records to support causation for
his claimed injuries. He argued expert testimony was
unnecessary because his treating physicians would testify to
the facts concerning his treatment and the jury would
determine the extent to which the accident caused his
injuries. Cooper did not present any testimony, ...