Hunter v. Universal Precast: Limiting Dismissal as a Sanction After Mistrial and Reaffirming Gatekeeping in Wyoming

Introduction

In Scott Hunter and Heather Hunter, as Next Friends and Parents of LH, a Minor Child v. Universal Precast Concrete, Inc., et al., 2025 WY 129, the Wyoming Supreme Court addressed three significant issues:

1. Whether the district court properly excluded several of the plaintiffs’ expert witnesses under Wyoming Rule of Evidence 702 and the Daubert framework;
2. Whether summary judgment in favor of the playground equipment manufacturers and suppliers (the “Business Defendants”) was appropriate in a products liability and negligence case arising from a playground injury; and
3. Whether the district court abused its discretion by dismissing the remaining negligence claims against Laramie County School District #1 with prejudice as a sanction for counsel’s conduct, after declaring a mistrial.

The case stems from injuries suffered by LH, an elementary school student who allegedly crushed her T5 vertebra while playing on “Rocks and Ropes,” a rope-and-rock apparatus installed on the playground at Meadowlark Elementary School in Cheyenne. The Hunters sued the product manufacturers and installers (Universal Precast Concrete/UPC Parks, Miracle Recreation, and Churchich Recreation – collectively the “Business Defendants”) under strict liability, breach of warranty, and negligence theories, and sued the School District for negligent operation and supervision of the playground and negligent medical care by the school nurse.

Procedurally, the litigation was long and complex, heavily affected by the COVID-19 pandemic and multiple scheduling extensions. The district court ultimately:

• Excluded a number of the Hunters’ experts under Daubert and W.R.E. 702;
• Granted summary judgment to the Business Defendants on all claims;
• Set the remaining claims against the School District for trial, but declared a mistrial on the first day because of the Hunters’ counsel’s conduct during voir dire and opening statement; and
• Thereafter dismissed the remaining claims with prejudice as a sanction for counsel’s conduct and procedural violations.

On appeal, the Wyoming Supreme Court:

• Affirmed the exclusion of the Hunters’ experts;
• Affirmed summary judgment for the Business Defendants; but
• Reversed the dismissal with prejudice, holding that the district court exceeded the bounds of its discretion by imposing the “nuclear” sanction of dismissal in circumstances that, though serious, did not rise to the “extreme situations” that Wyoming law requires.

This opinion therefore does two important things:

1. It reinforces Wyoming’s Daubert-based expert gatekeeping and the evidentiary rigor required to resist summary judgment in technical products cases; and
2. It meaningfully refines Wyoming law on dismissal as a sanction, emphasizing notice, consideration of lesser sanctions, and the distinction between sanctioning counsel and effectively punishing blameless clients—especially where a mistrial has already been declared.

Summary of the Opinion

The Wyoming Supreme Court’s holdings can be succinctly stated:

• Expert Exclusions (Issue 1). The district court properly applied W.R.E. 702 and the Daubert/Kumho framework in excluding several of the Hunters’ proposed experts. The Hunters’ appellate argument on this point was “abbreviated” and lacked substantive analysis. Reviewing the gatekeeping function de novo, the Court concluded the district court:
  • Understood the correct legal standard;
  • Engaged in a reasoned, expert-by-expert analysis of reliability and “fit”; and
  • Did not abuse its discretion in ultimately excluding the challenged testimony.
• Summary Judgment (Issue 2). The Court affirmed summary judgment in favor of the Business Defendants. Their affidavits (from designer Daniel Christensen and playground safety expert Teresa Hendy) made a prima facie showing that Rocks and Ropes was not defective or unreasonably dangerous and complied with relevant industry standards. Once the plaintiffs’ experts were properly excluded, the Hunters lacked admissible evidence to:
  • Show a product defect in design, manufacture, or warnings;
  • Support their alternate “challenge course” theory with a different applicable standard; or
  • Invoke an “inference of defect” theory under Sims.
  The Court held that conclusory assertions and inadmissible expert opinions cannot create a genuine issue of material fact.
• Dismissal as Sanction (Issue 3). The Court upheld the mistrial but reversed the subsequent dismissal with prejudice. It agreed that:
  • Counsel’s voir dire and opening contained improper “golden rule” and “protect the community” arguments and disregarded the court’s instructions; and
  • A mistrial was a permissible and reasonable sanction.
  But it held that:
  • The lengthy procedural history could not fairly be laid primarily at the Hunters’ feet;
  • Several alleged rule violations were either misapplied or minor;
  • The Hunters themselves bore no culpability; and
  • The district court did not adequately consider less drastic sanctions, especially given that a mistrial had already been imposed.
  Under Wyoming’s longstanding principle that dismissal is the “most severe of penalties,” appropriate only in “extreme situations,” the Court concluded that dismissal exceeded the bounds of reason.

The case was remanded to the district court to impose some lesser sanction on counsel (e.g., monetary or other non-case-ending penalties), while preserving the Hunters’ remaining claims against the School District for trial.

Analysis

I. Expert Exclusions and the Daubert Gatekeeping Function

A. The Governing Standard Under W.R.E. 702

Wyoming applies the federal Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), framework to expert testimony under W.R.E. 702. The Court reiterated the familiar principles:

• The trial judge must act as a gatekeeper, ensuring expert testimony is both reliable and relevant/fit to the issues in the case.
• Reliability focuses on the methodology or technique: whether it can be tested, subjected to peer review, has known error rates, is accepted in the relevant community, etc. (see ¶¶ 12–13).
• “Fit” addresses whether the testimony helps the trier of fact on issues actually in dispute and whether there is a “valid scientific connection to the pertinent inquiry” (¶ 14).
• The gatekeeping inquiry is flexible; the district court need not recite Daubert as a “magical incantation,” nor apply all listed factors mechanically. What is required is a reasoned explanation rather than conclusory admissibility/inadmissibility rulings (¶ 11).

The Supreme Court reviews whether the gatekeeping function was performed correctly as a matter of law (de novo), but reviews the resulting evidentiary ruling itself for abuse of discretion (¶¶ 10–11, 15–17).

B. Application in Hunter

The Hunters challenged the exclusion of five experts, but their appellate briefing was notably weak:

• They discussed only four of the five experts, and “only briefly” (¶ 15);
• They did not set out or meaningfully analyze the Daubert standard or show how the district court purportedly misapplied it; and
• The Court observed that the argument was so underdeveloped “it makes it appear as if the Hunters have almost abandoned their Daubert arguments on appeal” (¶ 15).

Despite this, the Supreme Court independently reviewed the district court’s Daubert order. It found:

• The district court correctly cited and applied Bunting, Hoy, and other Wyoming Daubert precedents (¶ 16);
• It individually assessed each expert’s report and deposition, considering qualifications, methodology, and whether the testimony fit the facts of this particular case (¶ 16);
• It excluded experts for different reasons, including lack of proper qualification, unreliable methods, and failure to “fit” the case or assist the jury (¶ 16); and
• The order contained far more than “conclusory statements,” thus satisfying the gatekeeping obligation as described in BNSF Railway Co. v. Box Creek Mining Ltd. Partnership (¶¶ 10–11, 16).

Given this record, and with no robust contrary argument from the Hunters, the Court held there was no abuse of discretion in excluding the experts (¶ 17).

C. Significance and Practical Implications

The expert ruling in Hunter is not doctrinally groundbreaking—Wyoming already adheres to Daubert—but it reinforces several practical points:

1. Gatekeeping is substantive, not formulaic.
   Trial courts need not march through every Daubert factor, but they must demonstrate they:
   • Understood the correct legal framework;
   • Engaged with the specific opinions offered; and
   • Explained why particular testimony is or is not reliable and helpful.
   When that is done, appellate courts will be highly deferential.
2. Thin appellate briefing on complex evidentiary issues is fatal.
   The Court highlighted the Hunters’ failure to develop a “robust analysis” (¶ 17). In practice, parties challenging or defending expert rulings must:
   • Walk through the expert’s methodology;
   • Engage specifically with the factors the trial court relied on; and
   • Explain how any alleged error affected the outcome.
3. Expert exclusion can be case-dispositive.
   As the Court later makes explicit, once the Hunters lost their experts, they effectively lost the ability to contest summary judgment on highly technical issues of product design, safety standards, and alternative designs (¶ 31). This underscores the strategic and substantive centrality of Daubert practice in complex tort litigation.

II. Summary Judgment on Products Liability and Negligence Claims

A. Summary Judgment Standards and Procedural Requirements

The Court restated Wyoming’s familiar summary judgment standard: summary judgment is appropriate where there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The burden-shifting framework is:

• The movant makes a prima facie showing that there is no genuine issue of material fact (¶ 20);
• The burden then shifts to the non-movant to present admissible, specific evidence showing a genuine issue for trial (¶¶ 20–21);
• Conclusory assertions, mere opinions, and reliance solely on pleadings are insufficient; and
• The evidence is viewed in the light most favorable to the non-movant with all reasonable inferences in their favor (¶ 21).

Two procedural rules were central:

• W.R.C.P. 56(c), (e). Parties must cite “particular parts” of the record; courts are only obliged to consider the cited materials and may grant summary judgment if a party fails to properly address asserted facts (¶¶ 21, 71).
• Rule 56.1 (Laramie County district court local rule). Requires “short and concise” statements of material fact with “pinpoint citations” to specific portions of the record (¶¶ 32, 69–71). Overlong, non-specific submissions shift the organizing burden onto the court, which the rules are designed to prevent (¶ 70).

The Supreme Court was candidly critical of the Hunters’ submissions, which attached over 1,000 pages of exhibits with sparse or non-specific citations, forcing the district court (and then the Supreme Court) to “sift” through largely unhelpful material (¶ 32).

B. Wyoming Substantive Products Liability Law

The Court reaffirmed several important principles underlying Wyoming products liability:

• Defect is an essential element of any products claim, whether framed as:
  • Strict liability;
  • Breach of express or implied warranty; or
  • Negligent design/manufacture or failure to warn (¶ 22).
  See McLaughlin v. Michelin Tire Corp., 778 P.2d 59 (Wyo. 1989).
• A product is “defective” when it is “not reasonably safe” or “unreasonably dangerous” to its user (¶ 23, citing Rohde, Campbell).
• A product is “not reasonably safe” if its foreseeable risks of harm could have been reduced or avoided by a reasonable alternative design, and failure to adopt that design renders the product unsafe (¶ 23, citing Loredo and Campbell).
• If a product is safe for normal handling and consumption/use, it is not defective (¶ 23).
• Injury alone does not prove defect. A plaintiff must either:
  • Produce specific evidence of a defect; or
  • Rely on a permissible inference of defect—but only after showing no abnormal use and no reasonable secondary causes (¶¶ 24, 36; citing Rohde, Sims).

C. The Business Defendants’ Prima Facie Showing

To meet their initial burden, the Business Defendants relied heavily on affidavits from:

• Daniel Christensen, co-founder of UPC, designer of Rocks and Ropes, and a certified Playground Safety Inspector; and
• Teresa Hendy, a playground designer and safety consultant with over 30 years’ experience, who served as Vice-Chair of the ASTM committee that developed the key playground standard, ASTM F1487 (¶ 25).

Their evidence established, among other things:

• Compliance with Safety Standards.
  • ASTM F1487 is the governing industry standard for public playground equipment (¶ 25);
  • Rocks and Ropes is certified under ASTM F1487 and other relevant safety standards (¶ 25); and
  • CPSC guidelines recognize similar equipment as appropriate for children ages 5–12 (¶ 26).
• Design and Use Characteristics.
  • Rocks and Ropes was designed with multiple users in mind, drawing on long-standing use of rope bridges and similar designs dating to the 1980s (¶¶ 26–27);
  • Load and tension testing for multiple users complied with ASTM and included safety margins (¶ 27); and
  • The installation instructions specify appropriate rope slack/tension (¶ 27).
• Safety and Warnings.
  • Rocks and Ropes is safe for elementary-age children when used as intended (¶ 28);
  • Even a five-year-old can understand how to use it (¶ 28);
  • No special operating instructions or enhanced supervision warnings were necessary beyond standard playground practice (¶ 28); and
  • There were no “hidden dangers” likely to surprise LH (¶ 28).

The Court acknowledged that compliance with industry standards does not automatically preclude defect, but called it “an important consideration,” especially when combined with evidence about alternative designs (¶ 29). Here, the record suggested:

• Rocks and Ropes conformed to widely accepted safety norms;
• Similar configurations had a long history of safe use; and
• The Hunters had not articulated a viable “reasonable alternative design” (¶ 29).

This was sufficient to make a prima facie showing that Rocks and Ropes was not defective, shifting the burden to the Hunters (¶ 30).

D. The Hunters’ Attempted Rebuttal—and Why It Failed

The Hunters’ responsive showing was, in the Court’s view, seriously deficient both procedurally and substantively.

1. Poor Rule 56.1 Compliance

The Court noted that:

• The Hunters’ primary response to the summary judgment motions was “essentially a two-page conclusory argument” (¶ 32);
• They attached over 1,000 pages of exhibits but did not provide helpful, pinpoint citations linking those documents to specific factual disputes (¶ 32); and
• Many citations were to entire lengthy exhibits rather than to specific pages, forcing the court to hunt for relevance (¶ 32).

While the Supreme Court “sifted” through the materials—as the district court had done—it bluntly noted this kind of submission is contrary to the purpose of Rule 56 and local Rule 56.1 (¶¶ 70–71).

2. Reliance on Excluded Experts

Substantively, the Hunters argued:

• The ropes were defective because there was insufficient tension (too much slack) for multiple users (¶ 33); and
• Rocks and Ropes was not “playground equipment” but a “challenge course,” allegedly triggering different industry standards (¶¶ 33, 38).

Both points depended almost entirely on their excluded experts’ opinions. Because those experts were properly excluded under Daubert, their opinions were not “competent evidence” that could be considered at summary judgment (¶¶ 31, 34). The Court emphasized:

• Parties resisting summary judgment must rely on evidence that would be admissible at trial (¶¶ 21, 34); and
• When a trial court has correctly excluded expert testimony, those opinions cannot be repackaged as summary judgment evidence.

Even if the Court assumed, as the district court had for some purposes, that the excluded experts could be considered, it found that:

• None of the experts provided reliable testimony explaining how or why Rocks and Ropes was unreasonably dangerous (¶ 35);
• None rebutted that the product met ASTM and CPSC standards or explained why those standards were insufficient (¶ 35); and
• None identified a concrete, feasible alternative design that would have eliminated the risk at issue (¶ 35).

3. The “Inference of Defect” Theory

On appeal, the Hunters invoked Sims v. General Motors Corp., 751 P.2d 357 (Wyo. 1988), arguing that they could rely on an inference of defect even without pinpointing a specific flaw (¶ 36). Under Sims and Rohde:

• A plaintiff may be entitled to an inference that a product was defective when it left the seller’s hands; but only if they make a prima facie showing that:
  • There was no abnormal use of the product; and
  • There were no reasonable secondary causes for the alleged defect or injury (¶ 36).
• The inference is not available simply because a product failed or someone was injured (¶ 36).

The Court observed that the Hunters:

• Did not develop the inference-of-defect theory below (¶ 37); and
• Failed to prove the absence of abnormal use or reasonable secondary causes, especially given that the incident involved another child allegedly jumping or falling onto the ropes (¶¶ 3, 37).

Thus, they could not invoke the inference doctrine to cure their lack of direct defect evidence.

4. Negligence and Failure-to-Warn Claims

The Hunters also asserted negligence and failure-to-warn claims against the Business Defendants, embedded within their strict liability theories (¶ 40). On appeal, they suggested these negligence theories had not been addressed. The record showed otherwise:

• The Business Defendants expressly included negligence claims in their summary judgment motions (¶ 40); and
• The district court found that the Hunters had offered no admissible evidence of:
  • A breach of any duty; or
  • Causation linking any such breach to LH’s injuries (¶ 40).

The Supreme Court confirmed it could not find admissible evidence to support negligence either (¶ 40). Because the alleged negligent design/failure to warn overlapped with the same product-defect and warning issues already resolved against the Hunters, those claims necessarily failed as well (¶¶ 39–41).

E. Overall Lessons from the Summary Judgment Ruling

The summary judgment portion of Hunter sends clear signals:

1. In technical products cases, admissible expert evidence is often indispensable.
   Once the experts fell away under Daubert, the Hunters had no viable path to prove defect, alternative design, or causation. Plaintiffs in such cases must:
   • Secure properly qualified experts early;
   • Ground their theories of defect and causation in accepted methodologies; and
   • Prepare to show how those opinions meet Daubert and fit Wyoming’s design-defect framework.
2. Compliance with well-recognized industry standards is powerful defense evidence.
   While not conclusive, documented compliance with ASTM/CPSC standards, along with a long track record of similar designs, can strongly support a prima facie showing that a product is not unreasonably dangerous.
3. Summary judgment procedure matters.
   Courts will not rescue parties who submit massive, poorly organized evidentiary dumps without clear, pinpoint citations and cogent argument. This can be outcome-determinative even when substantive issues are close.

III. Sanctions, Mistrial, and the Limits of Dismissal With Prejudice

A. The Legal Framework for Sanctions and Dismissal

The district court grounded its dismissal in:

• W.R.C.P. 37(b)(2)(A)(v) – permitting dismissal for failure to obey discovery orders;
• W.R.C.P. 41(b)(1) – permitting involuntary dismissal for failure to prosecute or comply with rules or court orders; and
• U.R.D.C. 901 – permitting sanctions, including dismissal, for violation of the Uniform Rules for District Courts (¶ 46).

Separately, Wyoming law recognizes courts’ inherent authority to sanction severe litigation abuse, including dismissal, as discussed in Dollarhide v. Bancroft (“Dollarhide II”), 2010 WY 126, ¶¶ 21–23, 239 P.3d 1168 (Wyo. 2010). That inherent power, however, must be exercised with restraint.

The Court reiterated Wyoming’s general approach:

• Dismissal is “the most severe of penalties, which ought to be assessed only in the most extreme situations” (¶ 44, quoting Dollarhide I and Glatter);
• Wyoming strongly favors resolving cases “on the merits” and resolving doubts in favor of giving parties their day in court (¶ 44, citing Corley, Waldrop);
• Courts must balance:
  • The need to manage dockets and prevent undue delay; against
  • The policy of merit-based adjudication (¶ 44, citing Corley, Nw. Bldg. Co.);
• Courts “should not go beyond the necessities of the situation” in foreclosing trial “merely as punishment for general misbehavior” (¶ 44, quoting Waldrop).

The district court also invoked the Tenth Circuit’s Cohen/Ehrenhaus factors (¶ 78), first articulated in Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992) and reaffirmed in Cohen v. Longshore, 621 F.3d 1311 (10th Cir. 2010). Those factors, adopted as “helpful criteria,” are:

1. The degree of actual prejudice to the defendant;
2. The amount of interference with the judicial process;
3. The culpability of the litigant;
4. Whether the court warned in advance that dismissal was a likely sanction; and
5. The efficacy of lesser sanctions (¶ 78).

The Wyoming Supreme Court confirmed that these factors are not rigid but are a useful checklist; the ultimate question remains whether the sanction decision was reasonable under all the circumstances (¶ 79).

B. Counsel’s Misconduct: Voir Dire and Opening Statements

The trial phase revealed significant misconduct by the Hunters’ counsel, beginning with voir dire and continuing into opening statement. The Supreme Court provides detailed excerpts, which underscore the issues.

1. Voir Dire Violations

During voir dire, counsel:

• Repeatedly asked potential jurors about safety rules, supervision expectations, and whether it was “fair” for the School District to “take advantage of” a lack of supervision as a defense (¶¶ 48–49);
• Continued lines of questioning even after the court sustained objections and told him to “move on” (¶ 50); and
• Used voir dire to argue the Hunters’ contentions and condition jurors to particular factual and legal assumptions (¶ 51).

The Court agreed with the district court that this violated W.R.C.P. 47(c), which strictly limits voir dire to selecting fair and impartial jurors and forbids counsel from:

• Arguing the merits of the case during voir dire; or
• Preconditioning jurors to specific factual or legal conclusions (¶¶ 51–52).

2. Improper Opening and Golden Rule / “Protect the Community” Themes

Counsel’s opening statement was more problematic. Among other things, he:

• Told jurors that safety rules “protect us and our children only if jurors have the courage to enforce them” (¶ 52);
• Attempted to use a storyboard demonstrative the court had already limited, and then verbally described what “would” be on it, in apparent defiance of that ruling (¶ 53);
• Suggested “if it wasn’t LH hurt that day, it could have been any one of the other 250 kids at recess” and analogized to other areas where “failing to supervise at school is dangerous,” such as building security, computers, and teacher hiring (¶¶ 54–55); and
• Described part of the jury’s job as deciding “for the community” whether safety rules were broken (¶ 56).

The district court repeatedly sustained objections and admonished counsel not to:

• Inflame the passions of the jury;
• Engage in argument during opening; or
• Try to turn the case into a referendum on community safety generally (¶¶ 55–57).

Ultimately, when counsel persisted—e.g., emphasizing that the playground equipment is used by children from “all over this community” at all hours (¶ 57)—the court excused the jury and warned counsel he risked being held in contempt. Counsel responded that the court was acting “extraordinarily inappropriate[ly]” and that he had “never had this kind of problem” with any judge in 46 years (¶ 57).

The School District moved for a mistrial, arguing that counsel’s statements:

• Violated the court’s rulings;
• Were designed to inflame jurors and encourage a verdict to “protect the community”; and
• Impugned the School District’s integrity (¶ 58–59).

The Supreme Court expressly characterized these as improper “golden rule”-type arguments and “protect the community” rhetoric:

• Opening is not for argument but to outline what evidence will be presented (¶¶ 61–61);
• It is “entirely inappropriate” to appeal to jurors’ prejudice or passions, especially by asking them to rule to protect the community or themselves (¶¶ 62–63); and
• Such arguments encourage jurors to depart from neutrality and decide the case based on bias rather than evidence (¶ 62, relying on Buszkiewic and Burton).

The Court held that the district court did not abuse its discretion in declaring a mistrial in response to this conduct (¶¶ 60–64). The impact on the jury and the overall fairness of the proceeding justified that remedy.

C. The Dismissal Order and Its Problems

After declaring a mistrial, the district court indicated it would entertain a motion to dismiss based on counsel’s conduct. The School District so moved, and the court ultimately dismissed all remaining claims with prejudice, citing:

1. Failure to prosecute (lengthy delays);
2. Rule violations (Rule 26 expert designations, Rule 56/56.1 summary judgment practice, Rule 47 voir dire limits);
3. Repeated violation of court orders (including pretrial orders about discovery, experts, and demonstratives); and
4. Violations of URDC 801 civility requirements (¶¶ 65–77).

The Supreme Court analyzed each category.

1. Delay and Failure to Prosecute

While the case had an undeniably “tortuous pretrial progress” (¶ 67), the Court emphasized:

• Not all delay was attributable to the Hunters;
• Many extensions were unopposed and granted without comment by the court (¶ 67);
• The Hunters frequently opposed vacating trial dates; and
• The early phase occurred during the COVID-19 pandemic, which seriously impacted scheduling and discovery (¶ 66).

The record did not resemble cases where a plaintiff allowed an action to lie “completely dormant for extended periods” (¶ 66). The Court concluded:

• It would be “not reasonable” to assign a large share of the delay to the Hunters (¶ 67); and
• All participants, including the court, bore some responsibility for the protracted timeline (¶ 67 & n.3).

2. Alleged Violations of Rule 26 and 56/56.1

The district court found that counsel violated:

• Rule 26(a)(3)(A) – by failing to “promptly” file his initial expert designation; and
• Rule 56(c) and Rule 56.1 – by submitting voluminous, inadequately cited materials and some inadmissible evidence (¶¶ 68–69).

The Supreme Court agreed in part and disagreed in part:

• As to Rule 26:
  • Rule 26(a)(2) requires disclosure of experts to other parties, not necessarily filing with the court; and
  • Rule 26(a)(3)(A) requires pretrial witness and exhibit lists to be filed 30 days before trial unless the court orders otherwise (¶ 68);
  • Because trial dates moved repeatedly, the deadlines moved as well, and “it appears the Hunters complied with the adjusted deadlines” (¶ 68);
  • Thus, the record did not support a Rule 26 violation in this respect (¶ 68).
• As to Rule 56/56.1:
  • The Court agreed that the Hunters’ summary judgment filings were deficient and not a “model to be followed” (¶¶ 69–70);
  • However, it noted that Rule 56 itself provides built-in remedies for such failures:
    • The court may reject uncited or improperly cited materials;
    • It may accept the movant’s statement of facts as undisputed; and
    • It may grant summary judgment if the movant is otherwise entitled to it (¶ 71).
  • Because Rule 56 contemplates these responses, general summary judgment-briefing deficiencies typically call for those tools, or other targeted sanctions, not case-ending dismissal entered long after the fact (¶¶ 71–72).

3. Violations of Pretrial Orders

The district court cited counsel’s violations of various pretrial orders, including:

• Designating additional experts and exhibits after the court granted a trial continuance but explicitly forbade additional discovery or supplementation (¶ 75);
• Attempting to use demonstrative exhibits at trial despite the court’s requirement that opposing counsel consent (¶ 75); and
• Filing a motion to reconsider expert exclusions that the court deemed untimely under Rule 60(b) (¶ 75).

The Supreme Court acknowledged that trial courts have inherent power to sanction failure to comply with pretrial orders, citing Glatter. But it emphasized:

• Ordinarily, the appropriate response is lesser sanctions, such as costs or other penalties, particularly absent evidence of bad faith, intentional delay, or repeated dilatory tactics (¶ 76);
• The record here did not show fraudulent or abusive misconduct on par with cases involving falsified documents, perjury, or deliberate obstruction (¶¶ 76, 84); and
• Instead, the violations looked more like a “collection of minor transgressions, general misbehavior, or an inept attempt to create an appellate record,” for which dismissal is too severe (¶ 76, citing Corley and Waldrop).

4. Civility Violations (URDC 801)

The district court also found counsel violated URDC 801, particularly:

• Failing to confer in good faith and reasonably cooperate with opposing counsel; and
• Failing to demonstrate respect for the dignity and authority of the court (¶¶ 77–78).

The Supreme Court:

• Could not definitively resolve the first point from the record (¶ 77); but
• Agreed that counsel’s conduct in open court—describing the court’s rulings as “extraordinarily inappropriate,” ignoring instructions, and repeating statements the court found offensive—demonstrated a lack of respect in violation of Rule 801(b) (¶ 77).

D. Applying the Cohen/Ehrenhaus Factors

Turning to the Cohen/Ehrenhaus factors, the Supreme Court largely accepted the district court’s findings on the first three but disagreed on the final two:

1. Prejudice to the Defendant. The Court agreed that counsel’s conduct caused some prejudice to the School District (¶ 80) – notably, wasted trial preparation costs and delay arising from the mistrial.
2. Interference with the Judicial Process. The Court agreed that counsel’s behavior interfered with the proper administration of the trial (¶ 80).
3. Culpability of the Litigant. The Court concurred that the Hunters themselves were blameless; any blame was on counsel (¶ 80).
4. Advance Warning of Dismissal.
   • The Supreme Court held that the Hunters did not receive a meaningful warning that dismissal was a likely sanction for trial misconduct (¶ 81);
   • In-trial warnings about contempt or mistrial were given, but dismissal was only mentioned after the mistrial was already declared, when the judge said he would consider a dismissal motion (¶ 81);
   • Pretrial warnings related to Daubert and expert issues did not reasonably put counsel on notice that voir dire/opening misconduct could lead to outright dismissal (¶ 82).
5. Efficacy of Lesser Sanctions.
   • The Court found the district court had not meaningfully considered lesser sanctions, such as:
     • Contempt sanctions;
     • Assessment of costs and attorney’s fees; or
     • Other non-case-ending penalties (¶ 83).
   • The district court reasoned that counsel showed a “propensity” not to follow orders and so would not comply with future orders (¶ 83). But the Supreme Court noted this ignored:
     • The already-imposed, severe sanction of a mistrial (¶¶ 83–85); and
     • The availability of monetary sanctions specifically contemplated by URDC 503 after a mistrial (¶ 83 n.4).

In short, the Court concluded that, viewing all circumstances:

• This was not the sort of “extreme situation” that justifies dismissal;
• The district court effectively “rounded up” assorted minor and major infractions to justify an additional, drastic sanction on top of a mistrial (¶ 84); and
• There was a “definite and firm conviction that a clear error of judgment was committed” in imposing dismissal (¶ 85).

E. Impact: Clarifying the Limits of Dismissal as a Sanction

The Court’s reversal on dismissal clarifies and tightens Wyoming law in several ways:

1. Dismissal after a mistrial requires particularly careful justification.
   A mistrial is already a “drastic sanction,” especially in civil cases, consuming resources and delaying resolution. Adding dismissal on top of that, especially where the clients are not personally at fault, demands:
   • Clear prior warning of dismissal as a possible consequence;
   • Specific, well-supported findings of extreme misconduct, akin to fraud, perjury, or chronic defiance; and
   • Explicit consideration and rejection of lesser sanctions, including monetary assessments and contempt.
2. Trial courts must distinguish between sanctioning counsel and punishing clients.
   Where the litigant is blameless and misconduct is localized to counsel, especially in courtroom advocacy, remedies should focus on:
   • Controlling courtroom behavior (e.g., striking statements, admonishing jurors, mistrial where necessary); and
   • Sanctioning counsel directly (fees, fines, reporting to disciplinary authorities) rather than disposing of the client’s claims.
3. Procedural missteps during motion practice rarely justify case-ending sanctions by themselves.
   Rule 56 already gives courts tools to deal with defective summary judgment filings. Post hoc reliance on those same defects to justify dismissal, especially where the movant has already secured summary judgment on the merits, risks double-counting and over-punishment.
4. Golden rule and “protect the community” arguments are squarely off-limits in Wyoming civil trials.
   Although the cited cases were largely criminal, this opinion clearly applies their reasoning to civil negligence trials. Counsel must avoid:
   • Asking jurors to decide “for the community” or to enforce broad societal norms;
   • Implying the verdict’s primary function is to prevent future harm to others; or
   • Encouraging jurors to imagine themselves or their children in the plaintiff’s position.

Complex Concepts Simplified

1. The Daubert Gatekeeping Role

Under W.R.E. 702, a judge must ensure expert testimony is:

• Reliable – based on sound methods accepted in the expert’s field (e.g., tested, peer-reviewed, with known error rates); and
• Relevant/Helpful – actually helps the jury decide an issue in the case and is tailored (“fits”) to the facts.

The judge is not deciding who is “right”; the judge is deciding whether the jury will hear the opinion at all. If the methods or fit are too weak, the expert can be excluded, and that can effectively end a party’s case where technical expertise is required.

2. Summary Judgment and Admissible Evidence

Summary judgment is a pretrial procedure used to decide cases (or parts of cases) without trial when:

• Even if all evidence is viewed in the nonmoving party’s favor, no reasonable jury could find for that party on a key element of the claim.

To resist summary judgment, you must:

• Point the court to specific, admissible evidence (depositions, documents, affidavits) that contradict the moving party’s version of critical facts;
• Use clear citations so the Judge can quickly see what you rely on; and
• Avoid relying solely on unsupported arguments or the allegations in your complaint.

3. Design Defect and “Reasonable Alternative Design”

In a design-defect case, you generally must show:

• The product was more dangerous than it reasonably should have been; and
• There was a practical, safer alternative design that:
  • Was technologically and economically feasible; and
  • Would have reduced or avoided the harm.

Simply pointing to an injury is not enough.

4. Inference of Defect

Sometimes a product is destroyed or hard to analyze. In such cases, Wyoming allows an “inference of defect” when:

• The product failed in a way that ordinarily doesn’t happen without a defect;
• The plaintiff used the product normally; and
• There are no reasonable other causes (e.g., misuse, external interference).

The plaintiff bears the burden to rule out abnormal use and other causes before the inference arises.

5. Mistrial vs. Dismissal

• Mistrial – Stops the current trial because something has happened (e.g., severe jury prejudice, attorney misconduct) that makes a fair verdict impossible. The case may be tried again.
• Dismissal with prejudice – Ends the case permanently. The plaintiff cannot refile. It is considered the harshest sanction, reserved for exceptional cases of abuse or prolonged neglect.

6. Golden Rule / “Protect the Community” Arguments

These are improper trial arguments where a lawyer:

• Asks jurors to imagine themselves or loved ones in the plaintiff’s situation; or
• Urges them to render a verdict to “send a message,” “protect the community,” or prevent future harm generally.

They are banned because they invite jurors to decide cases based on personal fear, sympathy, or policy preferences rather than the evidence and law.

7. Cohen/Ehrenhaus Factors for Dismissal Sanctions

When a court considers dismissing a case as a sanction, it looks at:

1. How much the other side was actually harmed (prejudice);
2. How much the misconduct disrupted the court’s work;
3. Whether the client (not just the lawyer) was at fault;
4. Whether the court clearly warned that dismissal could happen; and
5. Whether lesser sanctions (fees, fines, orders) would have been enough.

Only when the record shows that lesser steps will not work and the misconduct is extreme should dismissal be used.

Conclusion

Hunter v. Universal Precast is a multifaceted decision with several important takeaways:

• Expert Gatekeeping and Products Liability. The Wyoming Supreme Court reaffirmed robust Daubert gatekeeping and underscored that technical products liability claims require admissible, methodologically sound expert evidence. Compliance with industry standards and a well-documented safety record are influential in defeating claims of defect, especially when plaintiffs cannot propose a concrete reasonable alternative design.
• Summary Judgment Practice. The decision highlights the importance of disciplined summary judgment practice: concise statements, pinpoint citations, and reliance on admissible evidence. Poor briefing can undermine otherwise viable claims, and courts are not obligated to mine voluminous exhibits to reconstruct a party’s arguments.
• Sanctions and Dismissal. The Court strongly reaffirmed that dismissal with prejudice is an extraordinary sanction in Wyoming, reserved for the rare “extreme situation.” Even in the face of serious trial misconduct justifying a mistrial, courts must:
  • Provide clear advance warning when dismissal is on the table;
  • Carefully distinguish between counsel’s wrongdoing and the client’s culpability; and
  • Consider and explain why lesser sanctions (including the mistrial itself plus monetary or contempt sanctions) would not suffice.
• Trial Advocacy Boundaries. The opinion sends a sharp message to litigators: golden rule, “protect the community,” and other passion-stirring arguments are out of bounds in Wyoming civil trials. Voir dire and opening must remain focused on selecting impartial jurors and outlining anticipated evidence, not on arguing liability or appealing to broader societal fears.

On remand, the Business Defendants remain out of the case due to affirmed summary judgment, but the Hunters retain their remaining claims against the School District. The district court must impose some lesser sanction on counsel for his misconduct but may not deny LH and her parents their day in court based on conduct that, while serious and sanctionable, did not constitute the kind of extreme litigation abuse warranting permanent dismissal.