from the District Court of Laramie County The Honorable Peter
G. Arnold, Judge
Representing Appellant: Richard Gage, Richard Gage, P.C.,
Representing Appellee: Curtis B. Buchhammer, Buchhammer &
Ward, P.C., Cheyenne, Wyoming.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Ms. Aubri Vahai was rear-ended twice in the span of fifteen
months, first by Mr. Ryan Gertsch and then by Mr. James
Frew. Ms. Vahai sued Mr. Gertsch and Mr. Frew,
claiming their negligence caused permanent injuries to her
cervical and lumbar spine (neck and lower back) which will
require future surgery. Eventually the case went to a jury
trial. Mr. Gertsch and Mr. Frew admitted negligence. The only
issues for the jury were whether negligence caused damage to
Ms. Vahai and, if so, the amount. The jury awarded Ms. Vahai
a total of $10, 000 in damages and found Mr. Gertsch and Mr.
Frew to be 75% and 25% responsible, respectively. The
district court entered judgment accordingly. Ms. Vahai
appeals from the judgment, but her appeal pertains only to
Mr. Gertsch because she settled with Mr. Frew after the
Ms. Vahai contends the district court erred in allowing Mr.
Gertsch's Wyoming Rule of Civil Procedure 35 examiner to
testify at trial as an expert because Mr. Gertsch did not
comply with the disclosure requirements of Wyoming Rule of
Civil Procedure 26(a)(2)(B). We agree, but conclude the
admission of the examiner's testimony was harmless. Ms.
Vahai also maintains Mr. Gertsch's closing argument was
improper. She did not object to the closing argument and it
was not plainly erroneous. Finally, she asserts the district
court erred in requiring her to disclose her substance abuse
treatment records and in allowing their admission at trial
because they were privileged, not relevant and unduly
prejudicial. The district court did not err with respect to
her treatment records. We affirm.
Ms. Vahai raises five issues which we distill to three:
1. Did the district court err in allowing Mr. Gertsch's
Rule 35 examiner to testify as an expert at trial despite Mr.
Gertsch's failure to comply with Rule 26(a)(2)(B)?
2. Did Mr. Gertsch plainly err by personally attacking Ms.
Vahai, her counsel, her mother, and one of her experts during
3. Did the district court err in requiring Ms. Vahai to
disclose her substance abuse treatment records and in
allowing them to be admitted at trial?
We provide a brief summary of the facts here. Other relevant
facts will be set forth in the discussion of the issues.
November 2011 Accident
On November 29, 2011, Ms. Vahai, then 20 years old, was
driving a 1992 Ford Escort west on Lincolnway in Cheyenne,
Wyoming. She stopped to make a left-hand turn. While she was
waiting for oncoming traffic to clear, Mr. Gertsch, driving a
2005 Dodge Ram pick-up truck with an attached empty trailer,
hit the back of her vehicle, pushing it forward about six
feet. Ms. Vahai declined to go to the hospital immediately
after the accident but did report to the ER later that
evening. CT scans of her head and neck were normal. She was
diagnosed with whiplash and a myofascial cervical strain,
given pain medication and a muscle relaxer, and told to
follow up with her private physician within 2-3 days. She did
not follow-up and, in fact, did not seek further treatment
until three months later. In the meantime, she graduated from
beauty school and began working as a cosmetologist at Great
In March 2012, Ms. Vahai saw Dr. Vincent Ross, a physician at
Smart Sports, who diagnosed her with cervical, thoracic and
lumbar sprains and muscle spasms. He prescribed 8-16 sessions
of physical therapy, but Ms. Vahai completed only four.
During two of those sessions, she reported no pain prior to
or after treatment. On May 2, 2012, she was discharged from
physical therapy because she had met her goals; those goals
included eliminating her pain.
About a month and a half later, on June 21, 2012, she began
treatment with Dr. Michael Thompson, a chiropractor. He took
an X-ray of her cervical spine and diagnosed her with
kyphosis (a reversal of the natural C-shaped curve of the
cervical spine),  a cervical strain/sprain, and dysfunction
of the cervical and thoracic spine (neck and mid-back). Over
the course of twenty-four visits, he performed various
adjustments to her neck and mid-back, which improved her pain
symptoms. Dr. Thompson planned to take additional X-rays and
perform further treatment, but Ms. Vahai did not return to
his office after August 31, 2012.
On September 13, 2012, Ms. Vahai saw Dr. Judson Cook, a
neurosurgeon, who diagnosed her with a cervical sprain. Dr.
Cook informed her she had reached maximum medical improvement
but told her to return to his office if her symptoms worsened
or persisted. Ms. Vahai did not return.
March 2013 Accident
On March 1, 2013, Ms. Vahai was driving a 2011 Suzuki Grand
Vitara on Dell Range Boulevard in Cheyenne. Mr. Frew was
driving a 1999 Ford Ranger pick-up truck directly behind her.
Ms. Vahai stopped when traffic in front of her stopped. Mr.
Frew did not stop and rear-ended Ms. Vahai's vehicle. The
collision caused Ms. Vahai's vehicle to hit the pick-up
truck stopped in front of her. Ms. Vahai reported to the ER
after the accident. CT scans of her cervical and lumbar spine
were normal. She was diagnosed with whiplash. By the time of
the second accident, Ms. Vahai had left Great Clips and was
working 30-35 hours per week as a cosmetologist at Super
Cuts. About two weeks after the second accident, she reduced
her hours to 20-25 hours per week.
From March 29 to May 22, 2013, Ms. Vahai received
chiropractic treatment from Dr. Ryan Walton. She did not
receive further treatment for her neck or back until October
21, 2014 (seventeen months later), when she saw a physical
therapist in Fort Collins, Colorado.
On December 9, 2014, Ms. Vahai saw Dr. Timothy Wirt, a
neurosurgeon, who ordered an MRI of her cervical spine. The
radiologist reviewing the MRI reported minimal disk bulges at
C-4/C-5 and C-5/C-6. Dr. Wirt disagreed; he interpreted the
MRI as revealing her to have drier than normal discs in her
neck, a congenital condition which was not a source of pain
and did not require surgery. Ten days later, Ms. Vahai began
seeing neurosurgeons Dr. Fernando Techy and Dr. Kenneth
Pettine. Dr. Techy ordered an MRI of Ms. Vahai's lumbar
spine, which revealed a 4.5 mm central disc protrusion at the
L-5/S-1 joint. Over the course of the next year, Dr. Techy or
Dr. Pettine ordered that Ms. Vahai receive injections in her
neck and lower back. The injections provided temporary
In July 2016, Ms. Vahai returned to Dr. Ross at Smart Sports,
who again referred her to physical therapy. She was
prescribed 8-12 sessions, but completed only four. In
November 2016, Dr. Ross referred Ms. Vahai to Dr. Steven
Beer, a neurosurgeon, who examined her on January 9, 2017.
Dr. Beer ordered new MRIs of her cervical and lumbar spine.
He interpreted the MRIs to show kyphosis, disc herniation at
C-4 through C-7, and a 4.5 mm disc herniation with an annular
tear (a tear in the disc) at L-5/S-1. He ordered injections
to the affected areas. The injections provided Ms. Vahai pain
relief, which confirmed Dr. Beer's diagnosis.
At her last appointment on August 14, 2017, Dr. Beer informed
Ms. Vahai of her treatment options-have surgery to fuse the
afflicted joints in her cervical and lumbar spine or undergo
a procedure called facet rhizotomy to temporarily numb the
pain but which is effective only half of the time. Ms. Vahai
indicated she wanted to delay having surgery until after the
trial in this matter (which was then scheduled for the
following week) but did want to proceed with the facet
rhizotomy procedure. Several weeks later, the trial was
continued to the end of February 2018. Ms. Vahai had not had
surgery or the facet rhizotomy procedure by the time of
Lawsuit and Trial
Ms. Vahai filed a complaint against Mr. Gertsch and Mr. Frew
claiming she sustained permanent injuries to her neck and
back as a result of their negligence. She sought damages for
bodily injury, pain and suffering, loss of enjoyment of life,
loss of earnings and earning capacity, and future medical
care. She did not seek property damages or past medical
At trial, Ms. Vahai presented evidence she did not suffer
from neck or back pain prior to the November 2011 accident
and her pain was exacerbated after the March 2013 accident.
Dr. Thompson testified Ms. Vahai's kyphosis was
indicative of her having experienced a severe trauma like
whiplash. Dr. Beer testified to his interpretation of Ms.
Vahai's injuries and opined she required two surgeries,
one to fuse the afflicted joints in her neck (C-4 through
C-7) and another to fuse the afflicted joint in her lower
back (L-5/S-1). He also testified her injuries were caused by
the accidents but could not opine as to which injuries were
caused by which accident, other than that he believed the
first accident to be more responsible for her injuries than
the second. Ms. Vahai testified that due to her young age,
she had decided to wait 15 years to have the surgeries, which
Dr. Beer opined was appropriate. Ms. Sherry Young, Ms.
Vahai's functional capacity expert, testified Ms.
Vahai's injuries limited her to full-time sedentary work.
Because cosmetology was classified as light-duty work, Ms.
Young opined Ms. Vahai could only work part-time as a
cosmetologist and it was appropriate for her to have reduced
her hours after the second accident.
Ms. Liz Kattman, a rehabilitation counselor, testified to the
life care plan she created for Ms. Vahai based on the
opinions of Dr. Beer and Ms. Young. The plan included the
costs of two spinal fusion surgeries, presurgical care
including office visits, spinal injections and pain
medications, and post-surgical care including X-rays,
physical therapy and household assistance. According to Ms.
Vahai's expert economist, the cost of that life care
plan, in present dollars, was $863, 900. The economist also
testified Ms. Vahai's loss of earnings as a result of
having to work part-time as a cosmetologist until her
surgeries (15 years) was $298, 000, or $137, 200 if she was
able to secure full-time sedentary work.
While there was no explicit testimony as to the amount of
damages for Ms. Vahai's pain and suffering and loss of
enjoyment of life, her counsel suggested during closing
argument that $300, 000 was appropriate given Ms. Vahai's
inability to engage in activities she once enjoyed (sports
and dancing) without pain. He also asked the jury to consider
that Ms. Vahai will have to live with pain until she has
surgery and, even after surgery, will have to live with a
fused spine. As for apportionment of damages between the two
accidents, counsel argued Mr. Gertsch was 80-85% responsible
for Ms. Vahai's injuries and Mr. Frew 15-20% responsible.
This argument was based on Dr. Beer's testimony, as well
as the opinion of Mr. Frew's Rule 35 examiner, Dr. Greg
Reichhardt, who opined Mr. Gertsch was 75% at fault.
Mr. Gertsch and Mr. Frew admitted negligence but presented
expert testimony that the accidents did not cause Ms. Vahai
any permanent injury. Further, their experts indicated that
even if the accidents caused the spine issues Ms. Vahai
claimed, surgery was not required because those injuries
could be treated with stem cell therapy costing approximately
$7, 000. They also provided expert testimony that Ms. Vahai
had no functional limitations preventing her from working
full-time as a cosmetologist. Mr. Gertsch and Mr. Frew
emphasized Ms. Vahai's gaps in medical treatment, her
failure to complete the treatment prescribed, the speculative
nature of her damages given that she had not yet had surgery
at the time of trial, the fact that she smoked and the
negative impact smoking has on healing and the success of
fusion surgery, and her failure to mitigate damages,
including her failure to undergo stem cell therapy and to
pursue a more sedentary full-time job working with troubled
youth which could have earned her $3, 000 a month. They also
introduced evidence attempting to reduce the amount of
damages attributed to them, including that Ms. Vahai had been
involved in a third accident in a Walgreens parking lot and
evidence she abused alcohol and cocaine and suffered from
depression, both of which could negatively affect her ability
to enjoy life and earn a living.
The jury found the first accident (Mr. Gertsch) caused Ms.
Vahai $7, 500 in damages and the second accident (Mr. Frew)
caused $2, 500 in damages.
Did the district court err in allowing Mr. Gertsch's Rule
35 examiner to testify as an expert at trial despite Mr.
Gertsch's failure to comply with Rule 26(a)(2)(B)?
The district court created a scheduling order which
established a deadline for the designation of expert
witnesses under Rule 26 and a separate deadline for Rule 35
examinations and reports. In his Rule 26 designation, Mr.
Gertsch disclosed one expert and reserved the right to have
Ms. Vahai examined by Dr. J. Tashof Bernton under Rule 35.
Ms. Vahai agreed to be examined by Dr. Bernton. His
examination, which occurred on February 29, 2016, included
not only a physical exam but also psychological testing.
Dr. Bernton prepared a written report of his examination. He
opined Ms. Vahai suffered a myofascial cervical strain from
the first accident, which required only emergency room
treatment but, in any case, did not require treatment beyond
September 2012, and certainly not surgery. His psychological
testing revealed Ms. Vahai to have "a heightened report
of negative information and elevated functional complaints,
as well as depression." As a result, he opined
"psychological factors probably play a fairly big role
in [her] pain complaints and presentations and functional
Mr. Gertsch disclosed Dr. Bernton's report and designated
him as a testifying witness. These actions prompted various
motions from Ms. Vahai either to prohibit Dr. Bernton from
testifying based on Mr. Gertsch's failure to comply with
the disclosure requirements of Rule 26(a)(2)(B), or to
require Mr. Gertsch to comply with the rule. She also
complained of Dr. Bernton's psychological testing because
he was not a psychologist, she was not seeking psychological
damages, and she had not been provided notice that she would
be subjected to such testing. Mr. Gertsch opposed Ms.
Vahai's motions, arguing he was not required to comply
with Rule 26(a)(2)(B) because Dr. Bernton was a Rule 35
examiner, not a Rule 26(a)(2) expert. He also maintained the
psychological testing was appropriate because Ms. Vahai
placed no limitations on the examination and her
psychological condition was relevant as it could affect her
physical complaints. The district court denied Ms.
Vahai's motions "despite some deficiencies in [Mr.
Gertsch's] sharing of materials." It did, however,
allow Ms. Vahai to designate Dr. Jerry Post, Ph.D., as an
expert to rebut Dr. Bernton's testimony.
Dr. Bernton's trial testimony was taken via video
deposition. During that deposition, Mr. Gertsch's direct
examination remained mostly within the scope of Dr.
Bernton's report. Mr. Frew, however, cross-examined Dr.
Bernton on matters outside the scope of direct examination
and his report. Those matters included Dr. Bernton's
testimony that (1) stem cell therapy is an effective
treatment which is starting to be covered by more insurance
companies; (2) Ms. Vahai did not have any work restrictions;
(3) many doctors will not perform fusion surgery on patients
who smoke because of the greater risk of the fusion failing;
and (4) Ms. Vahai had not informed Dr. Bernton of a potential
job opportunity working with troubled youth which would not
require her to stand and use her arms like she does as a
cosmetologist. Ms. Vahai moved to strike these matters, but
the district court denied the motion and Dr. Bernton's
video deposition was played for the jury at trial.
In this appeal, Ms. Vahai contends the district court erred
in allowing Dr. Bernton to testify as an expert because Mr.
Gertsch failed to comply with Rule 26(a)(2)(B). She also
claims Dr. Bernton should not have been allowed to testify
regarding the results of the psychological testing because he
failed to provide all of the results or the underlying data
of that testing as required by Rules 26(a)(2)(B)(ii) and
35(b). She further argues the district court should have
stricken Dr. Bernton's cross-examination testimony which
went beyond the scope of direct examination and his report.
Because we agree with Ms. Vahai that the district court erred
in allowing Dr. Bernton to testify at trial despite Mr.
Gertsch's non-compliance with Rule 26(a)(2)(B), we need
not address her other complaints about his testimony-he
should not have testified at all. Although we find error in
permitting Dr. Bernton to testify, we conclude all of his
testimony, including his psychological opinions and matters
raised on cross examination, was harmless.
Between Rule 26(a)(2)(B) and Rule 35
We normally review a district court's discovery orders
and evidentiary rulings for an abuse of discretion.
Rammell v. Mountainaire Animal Clinic, P.C., 2019 WY
53, ¶ 29, 442 P.3d 41, 49 (Wyo. 2019) ("District
courts have discretion in determining the admissibility of
evidence, controlling discovery, and selecting the proper
means of sanctioning a discovery violation.")
(quotations omitted); Matter of GAC, 2017 WY 65,
¶ 32, 396 P.3d 411, 419 (Wyo. 2017) ("A trial
court's rulings on the admissibility of evidence are
entitled to considerable deference, and, as long as there
exists a legitimate basis for the trial court's ruling,
that ruling will not be disturbed on appeal."
(quotations omitted)). In this case, however, the issue
requires an interpretation of our rules of procedure, which
is a question of law reviewed de novo. Busch v.
Horton Automatics, Inc., 2008 WY 140, ¶13, 196 P.3d
787, 790 (Wyo. 2008) (citing Bixler v. Oro Management,
LLC, 2006 WY 140, ¶ 5, 145 P.3d 1260, 1262 (Wyo.
We have yet to address whether a Rule 35 examiner who
provides expert testimony at trial is required to comply with
the disclosure requirements of Rule 26(a)(2)(B).
Surprisingly, there is a dearth of case law addressing this
particular issue. Courts which have addressed the
relationship between Rule 26 and Rule 35 have done so in the
context of whether a Rule 35 examination and report are
subject to the deadline applicable to Rule 26(a)(2) expert
disclosures. The results are mixed. Some courts have
concluded that a Rule 35 examination may be subject to the
Rule 26(a)(2) expert disclosure deadline if a party intends
to call the examiner as a witness at trial. See, e.g.,
Diaz v. Con-Way Truckload, Inc., 279 F.R.D. 412, 418-19
(S.D. Tex. 2012); Shumaker v. West, 196 F.R.D. 454,
456-457 (S.D. W.Va. 2000). Other courts, however, have
concluded Rule 35 examinations and reports are not subject to
the Rule 26(a)(2) deadline. See, e.g., Bush v.
Pioneer Human Servs., No. C09-0518, RSM, 2010 WL 324432,
at *5 (W.D. Wash. 2010) (unpublished); Waggoner v. Ohio
Cent. R.R., Inc., 242 F.R.D. 413, 414 (S.D. Ohio 2007).
While the former cases provide some support for the
proposition that a party seeking to offer a Rule 35 examiner
as a testifying expert must comply with Rule 26(a)(2)(B), we
need not rely on these cases because the same result ensues
from the plain language of our rules.
In interpreting our rules of procedure, "we apply the
same rules used in statutory construction."
Busch, ¶ 13, 196 P.3d at 790 (citing Cotton
v. McCulloh, 2005 WY 159, ¶14, 125 P.3d 252, 257
(Wyo. 2005)). Our rules of statutory construction are
We first decide whether the statute is clear or ambiguous . .
. . A statute is unambiguous if its wording is such that
reasonable persons are able to agree as to its meaning with
consistency and predictability. A statute is ambiguous only
if it is found to be vague or uncertain and subject to
If we determine that a statute is clear and unambiguous, we
give effect to the plain language of the statute.
We begin by making an inquiry respecting the ordinary and
obvious meaning of the words employed according to their
arrangement and connection. We construe the statute as a
whole, giving effect to every word, clause, and sentence, and
we construe together all parts of the statute in pari
If we determine that the statute is ambiguous, we resort to
general principles of statutory construction to determine the
State v. Bannon Energy Corp., 999 P.2d 1306, 1308-09
(Wyo. 2009) (citations and quotations omitted).
Rule 35 states in relevant part:
(a)Order for an Examination. -
(1) In General. - The court where the action is
pending may order a party whose mental or physical
condition--including blood group--is in controversy to submit
to a physical or mental examination by a suitably licensed or
certified examiner. The court has the same authority to order
a party to produce for examination a person who is in its
custody or under its legal control. . . . .
(b) Examiner's Report. -
(1) Request by the Party or Person Examined. The
party who moved for the examination must, on request, deliver
to the requester a copy of the examiner's report,
together with like reports of all earlier examinations of the
same condition. The request may be made by the party against