Sprague v. Avalon Care Center , 446 P.3d 132 ( 2019 )

2019 UT App 107THE UTAH COURT OF APPEALS
CHERYL SPRAGUE,
Appellee,
v.
AVALON CARE CENTER,
Appellant.
Opinion
No. 20180019-CA
Filed June 20, 2019
Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 140908104
Catherine M. Larson and Jennifer R. Carrizal,
Attorneys for Appellant
Karra J. Porter and Kristen C. Kiburtz, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
concurred.
MORTENSEN, Judge:
¶1 After a six-day trial, which included testimony from
seventeen witnesses—almost half of whom were experts—a
nearly unanimous jury 1 awarded Cheryl Sprague, individually
and on behalf of the heirs and estate of Morley Reed Sprague
(collectively, Sprague), a $2 million verdict against Avalon Care
Center (Avalon) for Sprague’s injuries and resulting wrongful
1. Although eight of eight jurors found that Avalon breached the
applicable standard of care, only seven found that Avalon’s
breach was the proximate cause of Sprague’s death.
Sprague v. Avalon Care Center
death. Avalon appeals, arguing that the trial court erred by
denying its motion for partial directed verdict and admitting
various expert testimony. We affirm.
BACKGROUND 2
¶2 Morley Sprague was an elderly man who suffered from
advanced multiple sclerosis (M.S.) and paralysis of his lower
extremities. As a result, he was confined to a bed or wheelchair
and was “unable to reposition himself while sitting or lying
down.” This placed Sprague “at serious risk for developing
pressure ulcers.” 3
¶3 In 2012, Sprague was admitted to Avalon, where he
stayed for twenty-nine days. When he arrived, Sprague suffered
2. “Our recitation of the facts is presented in the light most
favorable to the jury’s verdict, and comes from the testimony
and evidence developed at trial.” Utah Dep’t of Transp. v. Target
Corp., 2018 UT App 24, ¶ 3 n.2, 414 P.3d 1080, cert. granted, 425
P.3d 800 (Utah 2018).
3. Bedsores—also called pressure ulcers and decubitus ulcers—
are injuries to skin and underlying tissue resulting
from prolonged pressure on the skin. Bedsores
most often develop on skin that covers bony areas
of the body, such as the heels, ankles, hips and
tailbone. People most at risk of bedsores are those
with a medical condition that limits their ability to
change positions or those who spend most of their
time in a bed or chair. Bedsores can develop
quickly. Most sores heal with treatment, but some
never heal completely.
Bedsores (pressure ulcers), Mayo Clinic (March 9, 2018),
https://www.mayoclinic.org/diseases-conditions/bed-sores/symp
toms-causes/syc-20355893 [https://perma.cc/28QD-8BM5].
20180019-CA 2 2019 UT App 107Sprague v. Avalon Care Center
from “a small, stage [one] pressure ulcer on his right buttock.” 4
Avalon assigned Sprague a doctor, Scott E. Southworth; a
wound care nurse, Richard Fonoti; and other nurses and nurses’
aides. Southworth relied on Fonoti and the other nurses to keep
him informed about Sprague’s condition, particularly the
pressure ulcer.
¶4 Within one month of being admitted to Avalon, Sprague’s
stage one pressure ulcer “had significantly deteriorated—to the
point where bone was exposed—and had become infected.”
Sprague’s family removed him from Avalon, but he never fully
recovered. Over the next twenty-two months, attempts to treat
the wound with surgery and antibiotics were unsuccessful and
Sprague died. His heirs and estate subsequently filed this
medical malpractice and wrongful death action.
Denial of the Partial Directed Verdict
¶5 At trial, Sprague called expert witness Kevin Emmons—a
board certified wound care nurse and professor of nursing at
Rutgers University—to testify to the standard of care of a
wound care nurse. On direct examination, Sprague’s counsel
asked,
Based on the materials that you have reviewed,
and your understanding of wound care, have you
formulated any opinions to a reasonable degree of
medical probability with regard to what the
standard of care, or what the standard of care
would have been required of [Avalon] in treating
[Sprague’s] wounds?
4. Bedsores are divided into four stages, one being the least
severe to four being the most severe. Bedsores, Johns Hopkins
Medicine, https://www.hopkinsmedicine.org/health/conditions-a
nd-diseases/bedsores [https://perma.cc/D2LN-RHUK].
20180019-CA 3 2019 UT App 107Sprague v. Avalon Care Center
Emmons answered, “Sure,” then expressed and explained those
opinions.
¶6 Emmons opined that Avalon breached the minimum
standards of care in the following seven respects: (1) inadequate
turning of Sprague, (2) failure to minimize wheelchair time,
(3) failure to provide a ROHO cushion, 5 (4) failure to provide an
air mattress sooner, (5) failure to provide qualified staff,
(6) failure to refer Sprague to a specialist, and (7) failure to
properly involve Sprague’s family in his care. Emmons
elaborated on each point by citing medical records, deposition
testimony, and other factual bases for his opinions. Emmons
“vigorously defended these opinions on cross-examination.”
¶7 At the conclusion of Sprague’s case-in-chief, Avalon
moved for a partial directed verdict on five of the seven alleged
5. A ROHO cushion is
designed to reduce pressure sore (ischemic ulcer)
formation. The cushion uses air-fluid
interconnected cells to mimic the supportive
properties of water and reduce the incidence of
pressure sores. The technology employs four key
principles to achieve this end: six degrees of
freedom (cells are independent and can adapt to
the anatomy of the patient), low surface tension
(permits immersion into the cushion without
deforming tissue), constant restoring force (forces
and pressures pushing back against the patient are
kept constant at all points of contact), and low
friction and shear (the slick surface prevents
friction between the cushion and the patient’s
skin).
J.C. Oleson, The Punitive Coma, 90 Cal. L. Rev. 829, 868 n.219
(2002).
20180019-CA 4 2019 UT App 107Sprague v. Avalon Care Center
breaches. 6 Avalon argued that Emmons’s testimony had not
established each alleged breach of the standard of care to a
reasonable degree of medical probability. The trial court denied
the motion. The court agreed that it was Sprague’s burden to
prove the elements to a reasonable degree of medical probability
but that “Emmons’s testimony either explicitly or implicitly met
that standard based on its totality.”
Expert Witness Testimony 7
¶8 Sprague’s counsel elicited extensive testimony from
Southworth—Sprague’s treating physician at Avalon—on direct
examination. Among other things, Southworth answered
questions related to the seven alleged duties and breaches
discussed by Emmons. During this line of questioning,
Southworth was asked, “So these seven [duties and breaches],
you would agree, are basic standards of care for treating
patients, such as [Sprague], that have existing pressure ulcers[?]”
Avalon objected on the ground that Southworth was not a nurse
and therefore could not provide expert testimony on the
standard of care of nurses. The court partially sustained the
objection and provided the following jury instruction:
So I’m going to allow him to answer the question,
but I want to explain something to the jury. You’re
going to be asked to make determinations as to the
nursing standard of care in this case. Dr.
Southworth is not a nurse, okay? I’m going to
6. Avalon concedes that the standard of care and breach were
sufficient to support a prima facie case with respect to Avalon’s
failure to provide a ROHO cushion and its failure to involve
Sprague’s family in his ongoing care.
7. We recite the following expert witness testimony in the same
order as the issues have been presented on appeal rather than
the order in which the witnesses actually testified at trial.
20180019-CA 5 2019 UT App 107Sprague v. Avalon Care Center
allow him to answer these questions for the limited
purpose of answering the question as far as his
knowledge as a doctor about wound care. But as I
said, later in the case you’re going to hear from
experts who are going to talk about nursing
standard of care, and that is what is applicable in
this case.
Southworth then answered, “These are things that I, as a
physician, would expect.”
¶9 A key witness for Avalon was Dr. Kwon Lee—a certified
wound care physician—who testified that the development and
progression of Sprague’s pressure ulcers were “unavoidable.”
Lee testified that he had reviewed “a lot” of Sprague’s records,
including records before, during, and after Sprague’s stay at
Avalon. Lee also reviewed the depositions of Fonoti and other
nurses, Sprague’s experts, Sprague’s wife, and Sprague’s treating
physicians. With that preface, Avalon asked Lee if he had
formed opinions in the case and what those opinions were. Lee
responded, “The care at [Avalon], I believe was reasonable. . . .
And the care rendered by [Fonoti] was appropriate.”
¶10 Lee elaborated on general nursing standards of care in
response to being asked what other interventions could have
been made to prevent a pressure ulcer. Specifically, he offered
that “certainly turning and repositioning is really the standard.
Using pressure reducing mattresses and so forth, cushions . . . .
[I]f there’s skin that’s prone to moisture, you want to use like a
barrier cream, like a thick type of ointment . . . . And there are
dressings that you can use, like foam dressings that will actually
help provide some pressure relief.”
¶11 Next, Lee gave opinions about the standard of care
expected of Fonoti. Lee stated that Fonoti had an obligation as a
wound care nurse to supervise other nurses and to ensure
appropriate preventative measures were in place. He further
opined that Fonoti had not caused the development of, or any
20180019-CA 6 2019 UT App 107Sprague v. Avalon Care Center
additional injury to, Sprague’s pressure ulcer. Finally, Lee
testified that Avalon could not have implemented other
interventions that would have helped to avoid Sprague’s
pressure ulcer.
¶12 On cross-examination, Sprague’s counsel first confirmed
Lee’s testimony on the general nursing standards of care. As a
result, Lee began backtracking on his earlier testimony by
characterizing certain actions as “recommendations” rather than
“standards” as he had previously stated. When Sprague’s
counsel pressed the issue, Avalon objected, claiming the cross-
examination was beyond the scope of the direct examination.
Avalon argued that Sprague’s questions went to general nursing
standards of care, whereas questions to Lee on direct had been
limited to the standard of care as to just Fonoti. The trial court
overruled the objection because Avalon “asked some really
broad standard of care questions” on direct examination.
Sprague continued attempting to discredit Lee, and Avalon
again objected to the questioning as beyond the scope of direct
examination. Again, the court overruled the objection and
acknowledged that the purpose of the questions was to impeach
Lee on his earlier testimony.
¶13 Sprague then attempted to impeach Lee on his position
that no other mitigating measures could have been taken to
prevent the pressure ulcer. Avalon again objected, arguing that
it “had limited [Lee’s] testimony to [Fonoti]” and that
questions about the other attending nurses were therefore
beyond the scope of the initial examination. The trial court again
overruled this objection because Lee had testified broadly on
direct examination, effectively opening the door to the line of
questions related to the nurses working under Fonoti’s
supervision.
¶14 Next, the trial court admitted Emmons’s testimony
related to Sprague’s alleged medical expenses. Emmons’s
transcribed testimony, in total, covered nearly 200 pages in the
record. In addition to testifying about his professional expertise
20180019-CA 7 2019 UT App 107Sprague v. Avalon Care Center
and experience, Emmons testified that he reviewed “a few
thousand records” related to this case. Those records included
(1) documents arising from Sprague’s initial hospitalization, his
first long-term care, his second long-term care, his stay at
Avalon, his hospice stay, and his discharge to home care;
(2) Sprague’s death certification; (3) depositions of the nurses,
physicians, and Avalon’s experts; and (4) Sprague’s medical
bills, for which Emmons provided a summarized report
(Summary).
¶15 On voir dire, 8 Avalon suggested that Emmons had not
personally reviewed all the documents listed in the Summary
because he had not also listed each provider separately, and by
name, in his expert report. Emmons disagreed and explained
that when a facility orders a medical service it may not always
perform that service; but, that the reports, bills, and other
documents related to that service remain within the ordering
facility’s records. So rather than list each individual provider
who performed a service, Emmons’s expert report simply
identified the facility that ordered the service. Counsel for
Avalon then stated, “I’ve made my point. I would move to just
strike the portions of the [S]ummary that refer to those providers
of whose records were not identified in the [expert] report.” The
trial court then asked Avalon, “Okay. Were you provided those
records in the course of this case?” Avalon responded, “I have
the records. Yes.” The trial court conditionally admitted the
Summary but indicated it would revisit the issue “at the next
break.”
¶16 At the next recess, Avalon again acknowledged it had
received all the relevant medical bills at issue. The trial court
asked if Avalon had “a good faith basis to believe that any of
these dollar signs on this [S]ummary don’t meet up with the real
8. In this context, voir dire is a “preliminary examination to test
the competence of a witness.” Voir dire, Black’s Law Dictionary
(10th ed. 2014).
20180019-CA 8 2019 UT App 107Sprague v. Avalon Care Center
bill?” Avalon admitted, “No. They meet up with the bill.” The
court indicated that it believed Avalon’s contentions with the
medical bills were related to causation, not their admissibility.
Avalon’s counsel responded, “What my point was, was there are
bills in there that are costs for care that’s not related to the
pressure ulcer.” The court advised counsel that “there’s certainly
nothing preventing you, in your case, from having a witness tell
that to a jury.” The court ruled that the Summary was admissible
and advised Avalon that if it wanted to respond to the causation
components of the medical bills, it “certainly [could].” The court
further instructed, “I want [Avalon] to provide to [Sprague] a list
of the items that [it] think[s] are not [medical costs related to
causation] by Monday morning.” Avalon’s counsel suggested,
“[J]ust as another alternative, there’s nothing precluding me
from just raising this issue in closing?” The court responded,
“[I]f you’d rather go that way, that’s fine. By admitting [the
Summary], I’m certainly not foreclosing you the opportunity to
argue that some of those costs were not causally related.”
Avalon answered, “Right. Okay. Fair enough.”
¶17 Sprague also called Dr. Mary Parsons who testified about
Sprague’s cause of death. During Parsons’s testimony, Sprague’s
death certificate—which she had completed and signed—was
also admitted into evidence. Parsons testified to, among other
things, her general training and experience concerning
(1) treating patients with pressure ulcers; (2) interpreting
symptoms of M.S.; (3) treating Sprague as his primary care
physician for “15 to 16 years”; (4) reviewing Sprague’s medical
records from before, during, and after the time he was a patient
at Avalon; (5) completing death certificates generally, and for
Sprague; (6) consulting with Sprague’s other doctors and nurses
about his ailments, treatments, and cause of death; and
(7) consulting with Sprague’s family about his ailments,
treatments, and cause of death.
¶18 Next, Parsons testified that Sprague’s cause of death—as
she had indicated on the death certificate—was the pressure
ulcer. Avalon objected, stating, “I’ll just renew our prior
20180019-CA 9 2019 UT App 107Sprague v. Avalon Care Center
objection that we’ve made previously.” Counsel for each party
approached the bench, and the court indicated that it was
concerned whether a “reasonable certainty of preponderance
[was] entered.” Sprague’s counsel offered to cure this objection
by saying, “I can ask her.” The court responded, “[W]hy don’t
you.” When direct examination resumed, Sprague’s counsel
asked Parsons, “[S]o would you be comfortable saying that what
you put on the death certificate is the cause of death to a
reasonable degree of medical probability?” Parsons answered,
“Yes.” The court then admitted the death certificate without
objection.
¶19 Dr. David Pegues also testified to Sprague’s cause of
death. In over seventy pages of testimony, much of which laid
the foundation of Pegues’s experience and personal knowledge
of Sprague’s medical records, Pegues opined on Sprague’s cause
of death, without objection by Avalon. When Sprague’s counsel
asked Pegues, “[H]ave you formed an opinion to a reasonable
degree of medical probability as to what caused [Sprague’s]
death?” Pegues answered, “[T]he most likely cause of death, was
related to the presence of and complications of the . . . ulcer that
had then been present for 20 months.” Pegues later testified—
again without objection—that although it was possible that
another ailment such as a urinary tract infection, pneumonia, or
influenza could have been the cause of death, “the available
medical documentation does not support [any of those] as the
probable cause of death.”
¶20 After a six-day trial, the jury found Avalon liable and
awarded $2 million in damages. Avalon appeals.
ISSUES AND STANDARDS OF REVIEW
¶21 First, Avalon contends that its motion for partial directed
verdict was denied in error. “The grant or denial of a directed
verdict is . . . a question of law reviewed for correctness.” Liley v.
Cedar Springs Ranch Inc., 2017 UT App 166, ¶ 12, 405 P.3d 817.
20180019-CA 10 2019 UT App 107Sprague v. Avalon Care Center
And when, as is the case here, “an appellant challenges the
denial of a motion for a directed verdict based on the sufficiency
of the evidence, the applicable standard of review is highly
deferential.” Id. (cleaned up).
¶22 Second, Avalon contends that the trial court erred by
admitting testimony from the following experts: Southworth,
Lee, Emmons, Parsons, 9 and Pegues. “We review the trial court’s
decisions regarding the admission of expert witness testimony
for an abuse of discretion.” Balderas v. Starks, 2006 UT App 218,
¶ 13, 138 P.3d 75.
ANALYSIS
I. Directed Verdict
¶23 Avalon contends that its motion for partial directed
verdict should have been granted because Sprague failed to
establish that Avalon breached the standard of care as to five of
the seven standards identified by Emmons. Avalon specifically
argues that because Emmons did not expressly state his opinions
in terms of “a reasonable degree of medical probability,”
Sprague failed to establish a prima facie case. But as discussed
below, Utah law does not require that an expert witness
expressly invoke that phrase separately and repeatedly in
conjunction with each stated opinion, and therefore, we
disagree.
9. Avalon also contends that Sprague’s death certificate—which
was signed by Parsons—was erroneously admitted “because it
sets forth an opinion as to [Sprague’s] cause of death that does
not meet [rule] 702’s requirements for expert causation
testimony.” Because this is the same argument against Parsons’s
expert testimony in general, and because the death certificate is
cumulative evidence of Parsons’s testimony, we address these
points together. Infra ¶¶ 44–47.
20180019-CA 11 2019 UT App 107Sprague v. Avalon Care Center
¶24 “To establish medical malpractice, a plaintiff must prove
four elements: (1) the standard of care required of health care
providers under the circumstances; (2) breach of that standard
by the defendant; (3) injury proximately caused by the breach;
and (4) damages.” Morgan v. Intermountain Health Care, Inc., 2011
UT App 253, ¶ 8, 263 P.3d 405. Owing to the complex nature of
medical malpractice cases, plaintiffs generally must establish the
standard of care and proximate cause elements through expert
testimony. Dalley v. Utah Valley Reg’l Med. Center, 791 P.2d 193,
195–96 (Utah 1990); see also Chadwick v. Nielsen, 763 P.2d 817, 821
(Utah Ct. App. 1988) (“Due to the technical and complex nature
of a medical doctor’s services, expert medical testimony must be
presented at trial in order to establish the standard of care and
proximate cause . . . .”).
¶25 Our supreme court, in State v. Jarrell, 608 P.2d 218 (Utah
1980), summarized the standard required of medical experts as
follows:
The general rule regarding the certainty of an
expert’s opinion is that the expert may not give an
opinion which represents a mere guess,
speculation, or conjecture. Expert medical opinion
evidence based on a probability, possibility, or
likelihood has been admitted, however, where the
witnesses expressed statements in language which
sufficiently represented their own best judgment to
a reasonable certainty.
Id. at 230 (cleaned up). This rule does not require that an expert
expressly state the phrase, “to a reasonable degree of medical
probability” for their testimony to be admissible or entitled to
weight. Indeed, consistent with the trial court’s approach here,
expert testimony should be viewed as a whole and analyzed on
its substance. See, e.g., Danny’s Drywall v. Labor Comm’n, 2014 UT
App 277, ¶ 17, 339 P.3d 624 (“When the report is read as a whole,
and in light of th[e] clear statement that [the claimant] has the
20180019-CA 12 2019 UT App 107Sprague v. Avalon Care Center
[relevant] medical conditions, it is evident that the medical
panel’s opinion is based on the panel’s assessment of medical
probability.” (cleaned up)); Johnson v. Montoya, 2013 UT App 199,
¶ 10, 308 P.3d 566 (“The Utah Rules of Evidence do not require
expert testimony to exhibit a reasonable degree of certainty to be
admissible but only a threshold showing of reliability. This
threshold requirement requires only a basic foundational
showing of indicia of reliability.” (cleaned up)).
¶26 Here, Emmons’s expert testimony was sufficiently reliable
to establish the prima facie elements of medical malpractice and
to survive Avalon’s motion for directed verdict. During his
direct examination, Sprague’s counsel asked,
Based on the materials that you have reviewed,
and your understanding of wound care, have you
formulated any opinions to a reasonable degree of
medical probability with regard to what the
standard of care, or what the standard of care
would have been required of [Avalon] in treating
[Sprague’s] wounds?
Emmons answered, “Sure,” and then expressed and explained
those opinions. The fact that Emmons did not repeat the phrase
“to a reasonable degree of medical probability” each time he
stated an opinion is neither here nor there. The question is
whether Emmons expressed his opinions in a way that indicated
sufficient certainty. Besides the alleged shortcoming of not
attaching the incantation of “a reasonable degree of medical
probability,” the record gives no indication that Emmons’s
opinions were offered under a different standard than the one
with which he prefaced his entire testimony. Avalon argues that
because Emmons failed to separately qualify each of his
opinions, we cannot know what standard he was applying. We
disagree that his testimony, when reviewed as a whole, was
compartmentalized in the manner Avalon suggests. And Avalon
does not point to any portion of the record that would lead us to
20180019-CA 13 2019 UT App 107Sprague v. Avalon Care Center
conclude that Emmons changed the general qualification that his
opinions were formulated to a reasonable degree of medical
probability.
¶27 We see no basis to disagree with the trial court’s
conclusion that Emmons’s opinions concerning all seven alleged
breaches were offered—either expressly or impliedly—to a
reasonable degree of medical certainty. See Liley v. Cedar Springs
Ranch Inc., 2017 UT App 166, ¶ 12, 405 P.3d 817 (stating that
when a challenge to the denial of a directed verdict concerns the
sufficiency of the evidence presented below, appellate review is
“highly deferential” to the trial court’s findings (cleaned up)).
We conclude that Emmons’s testimony, as a whole, displayed
the requisite indicia of reliability required to be admissible, and
therefore, the directed verdict was properly denied.
II. Expert Testimony
¶28 Next, Avalon contends that the trial court abused its
discretion in admitting expert testimony from five witnesses. We
discuss each witness in turn. Utah Dep’t of Transp. v. TBT Prop.
Mgmt., Inc., 2015 UT App 211, ¶ 15, 357 P.3d 1032 (“The proper
scope of cross-examination is within the sound discretion of the
trial court and should not be disturbed absent a showing of
abuse [of discretion].” (cleaned up)).
A. Southworth
¶29 Avalon argues that the trial court erred in allowing
Southworth to testify to the standard of care for nurses, because
he is not a nurse. “In Utah, a practitioner of one school of
medicine is ordinarily not competent to testify as an expert in a
malpractice action against a practitioner of another school due to
the wide variation between schools in both precepts and
practices.” De Adder v. Intermountain Healthcare, Inc., 2013 UT
App 173, ¶ 16, 308 P.3d 543 (cleaned up) (holding that “a
doctor’s training as a physician is not sufficient by itself to
qualify him or her to testify as an expert in a malpractice action
20180019-CA 14 2019 UT App 107Sprague v. Avalon Care Center
against a nurse” (cleaned up)). An exception to this rule is when
an expert “is knowledgeable about the applicable standard of
care.” Id. ¶ 17 (cleaned up); see, e.g., Creekmore v. Maryview Hosp.,
662 F.3d 686, 692–93 (4th Cir. 2011) (discerning no abuse of
discretion where the doctor, who testified about the nursing
standard of care, “regularly perform[ed] the procedure at issue
. . . and the standard of care for performing the procedure is the
same” for doctors and nurses (cleaned up)).
¶30 Avalon argues that the trial court erred by overruling its
objection and admitting Southworth’s “extensive” opinions on
the nursing standard of care. But that is not what happened here.
Avalon ignores that its objection to Southworth’s testimony was
partially sustained and that the court gave a curative
instruction—it told the jury to consider Southworth’s testimony
only for the “limited purpose of . . . his knowledge as a doctor
about wound care.” This instruction properly informed the jury
that Southworth was permitted to testify to the standard of care
only as it pertained to his knowledge as a physician, not as a
nurse. See De Adder, 2013 UT App 173, ¶ 17 (permitting expert
testimony to the extent that an expert “is knowledgeable about
the applicable standard of care” (cleaned up)). In other words,
because Southworth’s testimony was limited to his knowledge
as a physician on the standard of care owed by Avalon, it was
properly admitted. And to the extent that Avalon believed that
this testimony was not relevant to the standard of care for
nurses, it could have, and should have, made that argument to
the jury. Therefore, we conclude that the trial court did not err in
admitting Southworth’s testimony.
¶31 Further, Avalon’s opening brief did not include any
analysis, discussion, or even a mention of how admitting
Southworth’s testimony was prejudicial. See Camco Constr. Inc. v.
Utah Baseball Academy Inc., 2018 UT App 78, ¶ 42 n.13, 424 P.3d
1154 (“Issues raised by an appellant in the reply brief that were
not presented in the opening brief are considered waived and
will not be considered by the appellate court.” (cleaned up)).
Indeed, even in its reply brief, Avalon only dedicates a single
20180019-CA 15 2019 UT App 107Sprague v. Avalon Care Center
sentence to prejudice: “Moreover, allowing such testimony was
highly prejudicial and substantially affecting the likelihood of a
different result.” This conclusory sentence falls well short of
showing a reasonable likelihood that the verdict would have
been different if Southworth’s testimony had been excluded. See
Campbell v. State Farm Mutual Auto. Ins. Co., 2001 UT 89, ¶ 13, 65
P.3d 1134 (“A trial court will not be reversed for an abuse of
discretion unless there is a reasonable likelihood that the verdict
would have been different if the trial court had excluded the
expert testimony.” (cleaned up)), rev’d on other grounds, 538 U.S.
408 (2003). Thus, even if we were persuaded that the court
abused its discretion, Avalon has not shown that the error was
prejudicial.
B. Cross-Examination of Lee
¶32 We next turn to the issue of the scope of Lee’s cross-
examination. Lee testified on direct examination to the standards
of care for treating a patient such as Sprague. Specifically, he
discussed the general nursing standards of care for treating
bedsores and the specific standards of care applicable to Fonoti.
On cross-examination, the court permitted Sprague’s counsel to
ask questions regarding the general nursing standards of care
and, importantly, to impeach Lee as he was backtracking on his
earlier testimony by phrasing certain actions as
“recommendations” rather than “standards.” Avalon argues that
this testimony was beyond the scope of direct examination
because Lee “was designated by [Avalon] in the limited capacity
of offering testimony of causation, damages, and the standard of
care of [Avalon’s] wound care nurse, [Fonoti], . . . which differs
from the standard of care applicable to [Avalon’s] general
nursing staff.” We disagree.
¶33 The Utah Rules of Evidence provide that “[c]ross-
examination should be limited to” (1) “the subject matter of the
direct examination” and (2) “matters affecting the witness’s
credibility.” Utah R. Evid. 611(b). In other words, under rule
611(b), a trial court has broad discretion to permit a party, on
20180019-CA 16 2019 UT App 107Sprague v. Avalon Care Center
cross-examination, to ask questions related to the subject
matter of direct examination or to impeach the witness. Id.;
see also Whitehead v. American Motors Sales Corp., 801 P.2d 920, 924
(Utah 1990) (“Having offered his expert opinion, the witness
exposes himself to interrogation which ordinarily would have
no place in the cross-examination of a factual witness, but
the expert exposes himself to the most searching kind
of investigation into his qualifications, the extent of his
knowledge and the reasons for his opinion, including the facts
and other matters upon which it is based.” (cleaned up)); Utah
Dep’t of Transp. v. 6200 S. Assocs., 872 P.2d 462, 469 (Utah Ct.
App. 1994) (“The scope of the cross-examination of experts . . . is
very broad, since cross-examination is often the only protection
of the opposing party against the unwarranted estimates that a
certain class of mercenary experts is wont to indulge in.”
(cleaned up)).
¶34 Here, we conclude that the trial court did not abuse
its discretion in permitting Sprague to continue to cross-examine
Lee. First, Lee testified on direct-examination about standards
of care in general, and as applied to Avalon, Avalon’s nursing
staff, and Fonoti. Therefore, on cross-examination, Sprague
was properly permitted to ask questions on this same subject
matter. Second, Sprague was permitted to impeach Lee.
Avalon’s contention that Sprague was not permitted to highlight
that Lee was backtracking on his earlier testimony by
phrasing certain actions as “recommendations” rather than
“standards”—as he had previously stated—is legally incorrect.
We therefore conclude that the trial court did not abuse
its discretion in admitting Lee’s testimony from cross-
examination.
¶35 Further, Avalon’s opening brief again does not
demonstrate how admitting Lee’s testimony was prejudicial. See
Camco, 2018 UT App 78, ¶ 42 n.13. And again, in its reply brief,
Avalon dedicates only a single sentence to prejudice: “[T]he
prejudice of [admitting Lee’s testimony] is clear as there was a
substantial likelihood of a different result.” Thus, even if we
20180019-CA 17 2019 UT App 107Sprague v. Avalon Care Center
were persuaded by Avalon on this alleged error, we would still
be compelled to affirm. See Campbell, 2001 UT 89, ¶ 13 (requiring
a showing of prejudice to warrant reversal), rev’d on other
grounds, 538 U.S. 408 (2003).
C. Emmons—Medical Expenses
¶36 Avalon’s next contention is that the trial court erred in
admitting Emmons’s testimony and related Summary
concerning Sprague’s medical bills. Specifically, Avalon argues
that Emmons’s testimony and Summary were deficient under
rule 703 of the Utah Rules of Evidence and that Emmons’s
testimony and Summary were improperly admitted because his
expert report was deficient under rule 26(a)(4)(B) of the Utah
Rules of Civil Procedure. 10
1. Utah Rule of Evidence 703
¶37 The Utah Rules of Evidence provide, “An expert may
base an opinion on facts or data in the case that the expert has
been made aware of or personally observed.” Utah R. Evid. 703;
see also State v. Kelley, 2000 UT 41, ¶ 18, 1 P.3d 546 (“The facts or
data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known
to the expert at or before the hearing.” (cleaned up)). Here, the
record indicates that Emmons’s testimony and Summary
10. Avalon also contends that Emmons’s testimony should have
been excluded under rule 702 of the Utah Rules of Evidence.
Avalon, however, never made a rule 702 objection at trial, and
therefore this issue is not preserved, and we decline to address
it. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a
party fails to raise and argue an issue in the trial court, it has
failed to preserve the issue, and an appellate court will not
typically reach that issue absent a valid exception to
preservation.”).
20180019-CA 18 2019 UT App 107Sprague v. Avalon Care Center
satisfied rule 703 because he personally reviewed the medical
bills at issue. 11
¶38 Avalon contends that Emmons did not have personal
knowledge of each of Sprague’s medical bills that were listed
in the Summary because his expert report did not list each
provider who generated a medical bill. The record shows
otherwise. When Avalon questioned Emmons about his
knowledge of the medical bills, he provided a succinct
explanation: that he had indeed reviewed each medical bill, but
for clarity, had limited references in his expert report to the
ordering facility, rather than listing each discrete provider
separately. Emmons explained that when a provider performs a
service, all records related to that service are retained by that
provider and the facility that ordered the service. Thus, on
Emmons’s expert report, certain facilities were referenced in
connection with medical records and services it may have
ordered but not actually performed. In other words, Emmons’s
testimony demonstrates that he did review each of Sprague’s
medical bills despite the fact that he may have listed only the
ordering facility and not the provider who actually performed
that service.
¶39 Furthermore, Avalon cannot show prejudice. When the
trial court asked Avalon if it had “a good faith basis to believe
that any of these dollar signs on this [S]ummary don’t meet up
with the real bill,” Avalon conceded, “No. They meet up with
the bill.” Accordingly, where Avalon concedes that the figures in
the Summary are accurate, we conclude that the trial court did
not err in admitting Emmons’s testimony or Summary under
rule 703.
11. Other than an argument that Emmons had not personally
reviewed or was otherwise made aware of particular expenses,
Avalon argues no other basis for exclusion under rule 703 on
appeal.
20180019-CA 19 2019 UT App 107Sprague v. Avalon Care Center
2. Disclosure Under Rule 26(a)(4)(B)
¶40 Avalon also argues that the trial court erred “in admitting
[Sprague’s] medical expense summary chart into evidence . . .
because [Sprague] did not comply with the disclosure
requirements of Utah Rule of Civil Procedure 26.” Avalon
contends that Emmons’s expert report was deficient under rule
26(a)(4)(B) because it “did not state that he reviewed the medical
expense documentation relating to [various providers], all of
which formed much of the medical expense summary.” Avalon’s
contention is unavailing for three reasons.
¶41 First, Avalon abandoned its rule 26 disclosure objection at
trial, and therefore the issue is not preserved for appeal. See State
v. McNeil, 2013 UT App 134, ¶ 23, 302 P.3d 844 (“A claim is not
preserved for appeal if a party initially objects but later . . .
abandons the objection and stipulates to the court’s intended
action.”), aff’d on other grounds, 2016 UT 3, 365 P.3d 699. Avalon
initially objected and moved the court to “strike the portions of
the [S]ummary that refer to those providers whose records were
not identified in the report.” But Avalon abandoned this
objection when it conceded that Sprague had disclosed all of the
medical records, the medical records were accurate, and the
point it intended to make to the court was that there “are costs
for care that are not related to the pressure ulcer” contained in
the Summary. Then, after Avalon conceded to the trial court that
its objection concerned causation rather than admissibility, it did
not pursue its original disclosure objection. Accordingly, Avalon
abandoned its disclosure objection, and it is therefore not
preserved for appeal. See ConocoPhillips Co. v. Utah Dep’t of
Transp., 2017 UT App 68, ¶ 26, 397 P.3d 772 (“Defendants
affirmatively represent[ing] to the court that they no longer
sought a curative instruction . . . in conjunction with
[d]efendants’ counsel’s simultaneous proposal of an alternative
remedy that did not involve a curative instruction, constituted a
waiver.”). Under such circumstances, we cannot conclude that
the trial court abused its discretion in allowing the Summary
into evidence.
20180019-CA 20 2019 UT App 107Sprague v. Avalon Care Center
¶42 Second, and in the same vein, Avalon invited any
perceived error concerning the trial court’s decision to admit
Emmons’s testimony and Summary. See State v. Winfield, 2006
UT 4, ¶ 15, 128 P.3d 1171 (“Invited error . . . arises from the
principle that a party cannot take advantage of an error
committed at trial when that party led the trial court into
committing the error.” (cleaned up)). Although Avalon made its
initial objection on the ground that Sprague’s expert disclosures
were deficient, it later conceded that its concern went to
causation, not admissibility. And when the court offered to
ameliorate these concerns by allowing Avalon’s expert to opine
on whether the medical bills related to causation, Avalon instead
asked if it could rebut Emmons’s testimony and Summary in its
closing argument. The court responded, “[I]f you’d rather go
that way, that’s fine. By admitting [the Summary], I’m certainly
not foreclosing you the opportunity to argue that some of those
costs were not causally related.” Avalon answered, “Right.
Okay. Fair enough.” Avalon thereafter did not raise similar
concerns with the trial court, nor has it argued on appeal that it
did. Accordingly, we conclude that Avalon invited any
perceived error by signaling to the trial court that concerns over
Emmons’s testimony and Summary were cured by allowing
Avalon to rebut that testimony in closing arguments and not
thereafter renewing its disclosure objection. In short, the court
gave Avalon the remedy it asked for.
¶43 Third, Avalon has not argued that it was prejudiced by
the admission of Emmons’s testimony or Summary, nor, in our
view, can prejudice be found on these facts. See Campbell, 2001
UT 89, ¶ 13 (requiring a showing of prejudice to warrant
reversal), rev’d on other grounds, 538 U.S. 408 (2003).
D. Parsons
¶44 Avalon, in its opening brief, contends that the trial court
abused its discretion by “allow[ing] [Parsons] to offer opinions
about the cause of [Sprague’s] death” and admitting Sprague’s
death certificate. Avalon argues that Parsons failed to “meet a
20180019-CA 21 2019 UT App 107Sprague v. Avalon Care Center
threshold showing of reliability” to testify to Sprague’s cause of
death and that her testimony and the death certificate were
therefore admitted in error.
¶45 We reject Avalon’s position for three reasons. First,
Parsons’s foundational testimony satisfied rules 702 and 703 of
the Utah Rules of Evidence. Specifically, Parsons testified that
she had extensive experience as a treating physician and had
specifically treated patients with pressure ulcers. Parsons also
testified that she had extensive experience and history with
Sprague; she had consulted with Sprague’s family and medical
care providers; and she had reviewed all of the relevant medical
records in this case. Thus, we conclude that Parsons’s testimony
established a basic “foundational showing of indicia of
reliability” and therefore, the trial court did not abuse its
discretion in admitting her testimony. See Johnson v. Montoya,
2013 UT App 199, ¶ 10, 308 P.3d 566 (“The Utah Rules of
Evidence . . . require[] only a basic foundational showing of
indicia of reliability.” (cleaned up)).
¶46 Second, although Avalon has argued that Parsons’s
testimony was not sufficiently reliable, it has failed to directly
point to specific objections or “engage with” the trial court’s
specific rulings on those objections sufficient to satisfy its burden
on appeal. See Gines v. Edwards, 2017 UT App 47, ¶ 31, 397 P.3d
612 (explaining that “the appellant must engage with and
challenge the actual bases of the [trial] court’s decisions” to
persuade a reviewing court on appeal (cleaned up)). For
example, Avalon’s opening brief points out various criticisms of
Parsons, including that “[h]er clinical practice does not include
the management of [M.S.]” and that “Parsons has only treated a
few patients with advanced [M.S.] like [Sprague].” These
critiques, however, go only to the weight of the testimony
offered by Parsons, see Gunn Hill Dairy Props., LLC v. Los Angeles
Dep’t of Water & Power, 2012 UT App 20, ¶ 45, 269 P.3d 980, not
the indicia of reliability required for admissible expert
testimony, see Johnson, 2013 UT App 199, ¶ 10.
20180019-CA 22 2019 UT App 107Sprague v. Avalon Care Center
¶47 Third, Avalon has not explained why any alleged error on
this issue was prejudicial. See Campbell, 2001 UT 89, ¶ 13
(requiring a showing of prejudice to warrant reversal), rev’d on
other grounds, 538 U.S. 408 (2003). Therefore, we conclude that
the trial court did not err in admitting Parsons’s testimony.
E. Pegues
¶48 Finally, Avalon argues that Pegues’s testimony—about
Sprague’s cause of death—was erroneously admitted. This issue
was not preserved below. The record shows that Pegues testified
at least two separate times—without objection—that Sprague’s
cause of death was the pressure ulcer and not one of the other
ailments that Avalon argued could have been the cause of his
death. Where Avalon has not preserved this issue or argued that
an exception to preservation applies, we decline to address it
further. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443(“When a party fails to raise and argue an issue in the trial court,
it has failed to preserve the issue, and an appellate court will not
typically reach that issue absent a valid exception to
preservation.”).
CONCLUSION
¶49 The trial court properly denied Avalon’s motion for
directed verdict because Sprague sufficiently established the
elements of its claim. We also conclude that the trial court did
not abuse its discretion in admitting expert testimony challenged
by Avalon. Affirmed.
20180019-CA 23 2019 UT App 107