Arnold v. Grigsby , 417 P.3d 606 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 14IN THE
SUPREME COURT OF THE STATE OF UTAH
GINA M. ARNOLD,
Appellant and Cross-appellee,
v.
DAVID GRIGSBY, M.D.,
Appellee and Cross-appellant.
No. 20160191
Filed April 11, 2018
On Direct Appeal
Eighth District Court, Duchesne
The Honorable Samuel P. Chiara
No. 020800066
Attorneys:
Roger P. Christensen, Scott Evans, Sarah E. Spencer,
Gabriel K. White, Salt Lake City, for appellant and cross-appellee
Larry R. White, Paul D. Van Komen, Patrick L. Tanner,
Salt Lake City, for appellee and cross-appellant
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUDGE TOOMEY joined.
Due to her retirement, JUSTICE DURHAM did not participate herein;
COURT OF APPEALS JUDGE KATE A. TOOMEY sat.
JUSTICE PETERSEN became a member of the Court on
November 17, 2017, after oral argument in this matter
and accordingly did not participate.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Gina Arnold went in for a routine colonoscopy and ended
up with a potentially fatal condition when her bowel was
perforated during the procedure. She subsequently filed a medical
ARNOLD v. GRIGSBY
Opinion of the Court
malpractice claim against Dr. David Grigsby. This appeal is from a
medical malpractice suit where the jury concluded that
Ms. Arnold’s lawsuit against Dr. Grigsby was time-barred. In
particular, the jury found that Ms. Arnold’s cause of action against
Dr. Grigsby had accrued—that she should have known of her injury
and that it was caused by Dr. Grigsby’s negligence—more than two
years before she filed suit. Because of this, the jury concluded that
the Utah Medical Malpractice Act’s two-year statute of limitations
barred Ms. Arnold’s claim.
¶2 On appeal, Ms. Arnold argues that the trial court
committed four errors. First, she argues that the trial court
erroneously denied her motion for summary judgment on the issue
of whether she should have known that she had a cause of action
more than two years before she filed suit. Second, Ms. Arnold
argues that the trial court made a variety of evidentiary errors: it
erred in admitting two pieces of evidence that she says were
impermissible hearsay—(1) her husband’s statement that a nurse
had told him Ms. Arnold had received substandard care, and (2) a
document on which a nurse had noted that Ms. Arnold said she
intended to sue her doctors—and it also erred in excluding
evidence Ms. Arnold had proffered. Third, she argues that the trial
court erred in denying her motion for a directed verdict regarding
whether she should have known of her cause of action more than
two years before she filed suit. Finally, Ms. Arnold argues that the
trial court gave the jury several misleading instructions pertaining
to what Dr. Grigsby had to show to prove she should have known
about her cause of action more than two years before she filed suit.
Dr. Grigsby cross-appealed the trial court’s entry of summary
judgment for Ms. Arnold on the issue of whether she actually knew
of her cause of action more than two years before she filed suit.
¶3 We affirm. We hold that a jury could permissibly find for
Dr. Grigsby based on the evidence before it. We hold that the trial
court’s decision not to grant summary judgment isn’t reviewable—
and we further explain why an earlier decision by this court, Arnold
v. Grigsby, 2012 UT 61, 289 P.3d 449, in which we affirmed the court
of appeals reversal of a grant of summary judgment to Dr. Grigsby
on this same issue, isn’t to the contrary. We hold that the trial
court’s evidentiary decisions weren’t in error: it wasn’t an abuse of
discretion for the court to admit Ms. Arnold’s husband’s testimony,
and the nurse’s report was admissible under the business records
exception to the bar on hearsay; similarly, the court correctly
excluded all the evidence Ms. Arnold proffered. We hold that a
directed verdict isn’t warranted here where sufficient evidence was
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offered to sustain a jury verdict in favor of Dr. Grigsby. And,
finally, we hold that, read as a whole, the jury instructions in this
case weren’t misleading. And because we affirm, we dismiss the
cross-appeal as moot.
BACKGROUND
¶4 In July 1999, Dr. Gary White performed an outpatient
colonoscopy on Ms. Arnold. During the procedure, Dr. White
unknowingly perforated Ms. Arnold’s colon when removing a
small polyp. The next day, Ms. Arnold, experiencing symptoms,
went to the emergency room where Dr. White diagnosed the
perforation and admitted her to Uintah Basin Medical Center
hospital (UBMC), a small rural hospital in Roosevelt, Utah. Initially,
she was unsuccessfully treated with antibiotics. Dr. White and
Dr. Grigsby subsequently performed four laparoscopic procedures
to treat the infection caused by the perforation. Their efforts were
unsuccessful. Mr. Arnold testified that before his wife was
transferred to St. Mark’s Hospital, a nurse had told him that she
needed to be transferred or she’d die, and the nurse was critical of
the physician’s care. At her husband’s request, she was transferred
on August 16, 1999, to St. Mark’s Hospital in Salt Lake City, where
major surgery (a colostomy) commenced within hours to treat her
perforation and infection.
¶5 On August 26, 1999, a home health care nurse, Denice
Vernieuw, recorded on a sticky note attached to the intake form
that Ms. Arnold had crossed out portions of the form because she’d
been told by her lawyer not to sign papers agreeing to pay. This
note was entered into her record and recorded in Ms. Arnold’s
electronic patient notes by office staff five days later. Ms. Arnold’s
friend, daughter of attorney Harold Hintze, visited and assisted
Ms. Arnold frequently after she returned home to Roosevelt. After
some form of consultation, Ms. Arnold signed an authorization and
request for release of medical information in September 1999.
Mr. Hintze sent a request to UBMC for her medical records on
November 16, 1999. Mr. Hintze has no recollection of receiving
Ms. Arnold’s records, and by November 1999, began other legal
work in Panama. And Ms. Arnold, not having heard back from
Mr. Hintze, hired another attorney the next spring.
¶6 Ms. and Mr. Arnold filed their initial complaint on
December 4, 2001, against three defendants: Dr. Gary White,
Dr. David Grigsby, and the UBMC. This appeal only encompasses
the action against Dr. Grigsby. In 2005, Dr. Grigsby moved for
summary judgment because he purported that the two-year statute
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Opinion of the Court
of limitations had expired. The trial court granted summary
judgment. The Arnolds subsequently appealed, arguing that the
statute of limitations had been tolled when Dr. Grigsby left the state
in July 2000. The court of appeals reversed the trial court, a decision
Dr. Grigsby appealed. Arnold v. Grigsby, 2008 UT App 58, ¶ 24, 180
P.3d 188, rev’d, 2009 UT 88, 225 P.3d 192. We reversed the court of
appeals holding that the tolling provision didn’t apply to the statute
of limitations period that governed medical malpractice actions
under the Health Care Malpractice Act, Utah Code section 78-14-4
(2002), and remanded the case to the court of appeals to review the
trial court’s grant of summary judgment. Arnold v. Grigsby, 2009 UT
88, ¶¶ 25–26, 225 P.3d 192. The court of appeals reversed summary
judgment. Arnold v. Grigsby, 2010 UT App 226, ¶ 24, 239 P.3d 294,
aff’d on other grounds, 2012 UT 61, 289 P.3d 449. Dr. Grigsby again
appealed, and we affirmed the court of appeals in part, holding that
the facts presented couldn’t establish as a matter of law that her
claim was barred by the statute of limitations, and remanded the
case to the trial court “so that a jury [could] determine whether
Ms. Arnold filed her claim more than two years after she
discovered, or should have discovered, her legal injury.” Arnold v.
Grigsby, 2012 UT 61, ¶ 32, 289 P.3d 449.
¶7 Upon remand to the trial court, Ms. Arnold filed a motion
for summary judgment, which the court granted in part: finding
that Ms. Arnold didn’t actually know of her legal injury two-years
prior to the date she filed her complaint; and denied in part: finding
that a genuine issue of material fact remained as to whether
Ms. Arnold should have discovered her legal injury through
reasonable diligence more than two years prior to filing her claim.
After several hearings on the admissibility of evidence, the
remaining issue was tried to a jury in November 2015. After both
sides had presented their evidence to the jury, Ms. Arnold moved
for a directed verdict on the grounds that the evidence admitted at
trial established as a matter of law that the court should find in her
favor. The trial court denied the motion, finding that “what a
reasonable person should have known” according to the evidence
“is always a jury question.” The issue of whether Ms. Arnold
should have known of her legal injury then went to the jury for
deliberation, and the jury returned a unanimous verdict in favor of
Dr. Grigsby. We have jurisdiction under Utah Code section 78A-3-
102(3)(j).
STANDARD OF REVIEW
¶8 Summary judgment is only appropriate “if the moving
party shows that there is no genuine dispute as to any material fact
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and the moving party is entitled to judgment as a matter of law.”
UTAH R CIV. P. 56(a); 1 see also Orvis v. Johnson, 2008 UT 2, ¶ 6, 177
P.3d 600 (“An appellate court reviews a trial court’s legal
conclusions and ultimate grant or denial of summary judgment for
correctness . . . .” (citation omitted) (internal quotation marks
omitted)). “We do not review on appeal, however, whether a
dispute of material fact existed at the summary judgment stage of a
litigation if the trial court denies summary judgment.” Kerr v. City of
Salt Lake, 2013 UT 75, ¶ 29, 322 P.3d 669 (citations omitted).
¶9 With regard to the admission of evidence, most decisions
involve a threshold statement of the legal principle governing
admission or exclusion, findings of facts pertinent to a
determination, and the application of the legal principle to the facts
at hand with regard to admissibility. “We review the legal
questions to make the determination of admissibility for
correctness. We review the questions of fact for clear error. Finally,
we review the [trial] court’s ruling on admissibility for abuse of
discretion.” State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639(citations omitted).
¶10 A directed verdict is only appropriate “[i]f a party has been
fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis
to find for the party on that issue.” UTAH R. CIV. P. 50(a)(1). 2 This
court reviews trial court rulings on motions for directed verdict for
correctness. State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168 (“We
review a trial court’s ruling on a motion for directed verdict for
correctness.” (citation omitted)).
¶11 “A trial court’s ruling concerning a jury instruction is
reviewed for correctness,” without deference to its interpretation of
1 The 2015 amendments to Utah Rule of Civil Procedure 56
weren’t meant to make any substantive changes to Utah law. UTAH
R. CIV. P. 56 advisory committee notes (2015). Thus, we cite to the
current version of this rule regardless of when the ruling on
summary judgment was made.
2 Effective May 2016, rule 50 was amended to change the term
“directed verdict” to “judgment as a matter of law” along with
other clarifying language. The advisory committee notes that “[i]t
effects no change in the existing standard.” UTAH R. CIV. P. 50
advisory committee notes (2016) (citation omitted). Accordingly, we
cite to the current version of rule 50.
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Opinion of the Court
the law. Butler v. Naylor, 1999 UT 85, ¶ 10, 983 P.2d 41 (citation
omitted). “A new trial will not be granted unless any error of the
trial court was prejudicial, meaning that it misadvised or misled the
jury on the law.” Id. (citation omitted).
ANALYSIS
¶12 The statute of limitations on a medical malpractice suit is
tolled by the discovery rule until it’s time-barred by the four-year
statute of repose. “A malpractice action against a health care
provider shall be commenced within two years after the plaintiff or
patient discovers, or through the use of reasonable diligence should
have discovered[,] the injury, whichever first occurs . . . .” UTAH
CODE § 78B-3-404(1). 3
¶13 The focal issue in this appeal is whether the jury’s
determination that Ms. Arnold’s malpractice action was time-barred
is sustainable. It is. To this end, we first describe why it would be
inappropriate for us to review the trial court’s denial of
Ms. Arnold’s motion for summary judgment. Next, we explain why
the trial court acted within its discretion in admitting certain
evidence to which Ms. Arnold objected and excluding other
evidence Ms. Arnold proffered. We then conclude that the trial
court was correct to deny Ms. Arnold’s motion for directed verdict.
Finally, we determine that none of the jury instructions Ms. Arnold
objects to are misleading.
I. MOTION FOR SUMMARY JUDGMENT
¶14 Ms. Arnold first argues that the trial court erred when it
denied her motion for summary judgment. In support of this
argument, Ms. Arnold attempts to press into service a Utah
Supreme Court decision from an earlier phase of her case: Arnold v.
Grigsby, 2012 UT 61, 289 P.3d 449 (Arnold IV). In Arnold IV, she
argues, we already decided that the same basic evidence
3 The statute in force at the time of the malpractice suit was Utah
Code section 78-14-4 (1979) (“No malpractice action against a health
care provider may be brought unless it is commenced within two
years after the plaintiff or patient discovers, or through the use of
reasonable diligence should have discovered[,] the injury,
whichever first occurs, but not to exceed four years after the date of
the alleged act, omission, neglect or occurrence . . . .”). As there are
no pertinent changes to the language of the statute that would affect
the outcome of this case, we cite to the current version that was
amended and codified in 2012.
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Dr. Grigsby later put before the jury was insufficient, as a matter of
law, to establish that Ms. Arnold should have made the discovery
that her medical complications resulted from negligence more than
two years before she filed her lawsuit. We disagree.
¶15 This summary judgment decision is not reviewable. “We
do not review on appeal . . . whether a dispute of material fact
existed at the summary judgment stage of a litigation if the trial
court denies summary judgment.” Kerr v. City of Salt Lake, 2013 UT
75, ¶ 29, 322 P.3d 669 (citation omitted). A denial of summary
judgment is reviewable following a trial only if it’s based on a
purely legal question or on undisputed facts. Normandeau v. Hanson
Equip., Inc., 2009 UT 44, ¶ 15, 215 P.3d 152 (“[W]hen a court denies a
motion for summary judgment on a purely legal basis, that is where
the court denies the motion based on the undisputed facts, rather
than because of the existence of a disputed material fact, the party
denied summary judgment may challenge that denial on appeal.”);
see also id. ¶ 11 (“Although some jurisdictions have chosen to
implement [a] bright line rule, others recognize that [a] critical
distinction exists between summary judgment motions raising the
sufficiency of the evidence to create a fact question for the jury and
those raising a question of law that the court must decide.” (second
alteration in original) (citations omitted) (internal quotation marks
omitted)); Kerr, 2013 UT 75, ¶ 11 (“We review for correctness a trial
court’s denial of summary judgment when the court bases its ruling
on a purely legal determination.” (citation omitted)). Here, the trial
court expressly denied Ms. Arnold’s motion based on the existence
of disputed facts. We therefore decline to review the trial court’s
summary judgment decision.
¶16 Further, to the extent Ms. Arnold is arguing that Arnold IV
required the trial court to award her summary judgment as a matter
of law, we reject this reading. In Arnold IV, this court upheld the
court of appeals’ decision to reverse an award of summary
judgment to Dr. Grigsby. We held that a reasonable jury confronted
with the facts Dr. Grigsby adduced in support of his motion for
summary judgment—“the existence of symptoms,” “a suspicion
that a doctor’s negligence caused medical complications,” and “the
commencement of an investigation”—still could have concluded
that Ms. Arnold neither knew nor should have known of her injury,
and we specifically remanded for a jury trial on these issues. Arnold
IV, 2012 UT 61, ¶¶ 15, 33.
¶17 Relying on snippets from Arnold IV, Ms. Arnold invites us
to convert it from a decision reversing the trial court’s award of
summary judgment to Dr. Grigsby into a decision awarding her
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Opinion of the Court
summary judgment. In support of this invitation, she notes that, at
times, Arnold IV explains its decision to reverse summary judgment
to Dr. Grigsby by stating that the evidence before the court on
summary judgment was “insufficient to establish” that Ms. Arnold
knew or should have known she had a cause of action against
Dr. Grigsby more than two years before she filed suit.
¶18 We decline this invitation. “[A] denial of summary
judgment is not a decision on the merits; it simply is a decision that
there is a material factual issue to be tried.” 10A CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2712 (4th ed.
2017). When Arnold IV spoke of the “insufficiency” of Dr. Grigsby’s
evidence, it meant that the evidence on the record was insufficient
to establish as a matter of law that Ms. Arnold knew or should have
known that Dr. Grigsby’s negligence had caused her injury more
than two years before she filed suit. Arnold IV, 2012 UT 61, ¶ 33
(“Dr. Grigsby failed to show, as a matter of law, that Ms. Arnold
filed her claim more than two years after she discovered her legal
injury.”). But we didn’t reach this holding because no reasonable
jury could have concluded otherwise based on the specific facts of
Dr. Grigsby’s case. Rather, we held “that material issues of fact in
this case render[ed] the [trial] court’s grant of summary judgment
inappropriate[,] . . . and we remand[ed] for the jury to determine”
the outcome. Id. In denying the grant of summary judgment, we
decided only that the case should go to trial, not that Dr. Grigsby
should lose. And “[l]itigants must be able to present their cases
fully to the court before judgment can be rendered against them
unless it is obvious from the evidence before the court that the party
opposing judgment can establish no right to recovery.” Mountain
States Tel. & Tel. Co. v. Atkin, Wright & Miles, Chartered, 681 P.2d
1258, 1261 (Utah 1984) (citation omitted).
II. EVIDENTIARY DECISIONS
¶19 Ms. Arnold asserts that the trial court erred in admitting
improper hearsay evidence and excluding other evidence that
would have been favorable to her case. We hold that the trial court
correctly determined the law with regard to its evidentiary
decisions, that there was no clear error in its factual findings, and
that it didn’t abuse its discretion in its evidentiary rulings.
Therefore, these rulings do not constitute reversible error.
A. Hearsay
¶20 Hearsay, as defined in Utah Rule of Evidence 801(c), is “a
statement that: (1) the declarant does not make while testifying at
the current trial or hearing; and (2) a party offers in evidence to
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prove the truth of the matter asserted in the statement.”4
Sometimes, “statements that appear on the surface to be hearsay . . .
are not. . . . Accordingly, if an out of court statement is offered for
some other purpose—e.g., to [show its effect of the hearer’s state of
mind] and not for its truth—it is not hearsay.” Prosper, Inc. v. Dep’t
of Workforce Servs., 2007 UT App 281, ¶ 12, 168 P.3d 344. “Hearsay is
not admissible except as provided by law or by these rules.” UTAH
R. EVID. 802. There are several exceptions to the hearsay rule
outlined in rules 803–807.
¶21 “Our standard of review on the admissibility of hearsay
evidence . . . ‘often contains a number of rulings, each of which may
require a different standard of review.’” State v. Workman, 2005 UT
66, ¶ 10, 122 P.3d 639 (citation omitted). “We review the legal
questions to make the determination of admissibility for
correctness. We review the questions of fact for clear error. Finally,
we review the district court’s ruling on admissibility for abuse of
discretion.” Id. (citations omitted).
1. Husband’s Recollection of Unknown Nurse’s Statement
¶22 While at UBMC, an unidentified nurse warned Mr. Arnold
that he needed to get Ms. Arnold out of UBMC “or she was going to
die.” Ms. Arnold argues that the statement was inadmissible
hearsay. On the other hand, Dr. Grigsby argues that the statement is
admissible because it directly led Mr. Arnold to request
Ms. Arnold’s transfer to another hospital. The trial court concluded
that the statement wasn’t hearsay because it was “offered to show
the effect on Mr. Arnold, the hearer, rather than for the truth of the
matters asserted in the statement.” The court was correct. See State
v. Hutchison, 655 P.2d 635, 636 (Utah 1982) (“When an out-of-court
statement is offered only to prove that the statement was made,
without regard to its truth or falsity, it is not proscribed by the
hearsay rule.” (citations omitted)). Also, because it wasn’t offered to
establish the truth of Ms. Arnold’s actual risk of death or the
deficiency of medical care, the qualifications of the nurse to make a
medical assessment were irrelevant.
¶23 The trial court also determined that sufficient foundation
was laid under Utah Rule of Evidence 602 and that Utah Rule of
4 The Utah Rules of Evidence regarding hearsay haven’t
changed in substance since their inception. Any changes made were
to the style and renumbering. As such, we quote the current version
of the rules regarding hearsay.
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Evidence 403 didn’t require exclusion of this evidence. Mr. Arnold
himself was able to establish sufficient foundation under rule 602
because he personally participated in the conversation. Moreover,
the probative value of the statement wasn’t substantially
outweighed by its prejudicial effect. The fact that Mr. Arnold
ultimately gave testimony at trial that he never communicated this
statement to Ms. Arnold does not undermine the trial court’s
conclusion, but strengthens it. On appeal, Dr. Grigsby admits that
the nurse’s statement “provided no basis for [Ms. Arnold]
discovering her injury.” Both parties agree that the nurse’s
statement was not communicated to Ms. Arnold, so it wasn’t
prejudicial to her. And the statement had probative value. It was
given to the jury not to prove what the nurse told him was actually
true or whether Ms. Arnold knew of the nurse’s statement, but to
show its effect on Mr. Arnold and present to the jury a possible
reason for the desire to move Ms. Arnold to St. Mark’s Hospital. We
hold that the trial court correctly interpreted the relevant legal
issues and didn’t abuse its discretion in admitting the nurse’s
statement.
2. Nurse’s Document
¶24 Conversely, the “sticky note” on the eight-page pharmacy
document is hearsay because it’s being offered to prove the truth of
the matter asserted—that Ms. Arnold had consulted an attorney
and was considering a lawsuit. To be admissible, then, it must fall
within one of the hearsay exceptions. Further, each statement on the
sticky note may also be hearsay because they weren’t “transmitted
by . . . someone with knowledge” as to their truthfulness, and so
must comply with Utah Rule of Evidence 805: “Hearsay within
hearsay is not excluded by the rule against hearsay if each part of
the combined statements conforms with an exception to the rule.”
We first determine whether the sticky note is admissible under the
business records exception and then determine which, if any,
statements also qualify for admissibility.
¶25 The trial court correctly concluded that a portion of the
sticky note was permissible under rule 803(6), “Records of a
Regularly Conducted Activity,” also known as the business records
exception. To be admissible under the business records exception,
“[a] record of an act, event, condition, opinion, or diagnosis” must
meet the following requirements:
(A) the record was made at or near the time by—or from
information transmitted by—someone with
knowledge;
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(B) the record was kept in the course of a regularly
conducted activity of a business . . . ;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of the
custodian . . . ; and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of
trustworthiness.
UTAH R. EVID. 803(6). Ms. Vernieuw, the home healthcare nurse,
testified that she handwrote the sticky note to explain the changes
made to the standard form. 5 She then gave the paperwork to the
pharmacy, which was scanned into the pharmacy’s electronic
records within days of the visit. Thus, “the record was made at or
near the time by—or from information transmitted by—someone
with knowledge.” Id. 803(6)(A). Ms. Vernieuw also testified that the
“papers belong[ed] to the pharmacy” for which she worked and
that they were completed “in the ordinary course of . . . rendering
services,” satisfying rule 803(6)(B)–(D). The trial court didn’t abuse
its discretion in finding that the source of information, the method,
or the circumstances were trustworthy.
¶26 After finding that the sticky note qualified under the
business records exception, the trial court analyzed the note as
5 Ms. Arnold argues that the nurse, Ms. Vernieuw, shouldn’t
have been allowed to testify because her testimony was unduly
prejudicial, outweighing its probative value. See UTAH R. EVID. 403.
We disagree that the trial court abused its discretion in allowing
Ms. Vernieuw to testify. Far from it. The note was highly probative
of key issues: Ms. Arnold’s understanding that she had a
malpractice claim and when she came to hold that view. See State v.
Hamilton, 827 P.2d 232, 239–40 (Utah 1992) (“In reviewing a trial
court’s ruling on the admissibility of evidence under rule 403, we
will not overturn the court’s determination unless it was an abuse
of discretion. To state the matter more precisely, we review the trial
court’s 403 ruling admitting or denying admission to evidence by
deciding whether, as a matter of law, the trial court’s decision that
the unfairly prejudicial potential of the evidence outweighs [or does
not outweigh] its probativeness was beyond the limits of
reasonability.” (alteration in original) (citations omitted) (internal
quotation marks omitted)).
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hearsay within hearsay. There are four separate independent
clauses that the trial court analyzed individually for admissibility
under a hearsay exception: (1) “Client has been told by her lawyer,
not to sign any papers indicating she’ll pay”; (2) “therefore she
crossed out those sections or would not sign them”; (3) “Apparently
she’s preparing a suit for problems in beginning of illness”; and
(4) “After billing any expense after insurance pays, you may need to
go through her lawyer for pay.” This note was signed “Denice.”
¶27 The trial court determined that the first clause, “Client has
been told by her lawyer, not to sign any papers indicating she’ll
pay,” was admissible under rule 803(3). This rule allows hearsay
statements that demonstrate “the declarant’s then-existing state of
mind (such as motive, intent, or plan).” Id. 803(3). There was no
abuse of discretion in admitting this evidence.
¶28 The trial court also correctly concluded that the second
clause, “therefore she crossed out those sections or would not sign
them” was an “event” as described in rule 803(6), and therefore
admissible. The third clause, “Apparently she’s preparing a suit for
problems in beginning of illness” was originally determined
inadmissible hearsay, but was later allowed for jury consideration
under rules 801(d)(2) 6 and 803(6) when Ms. Vernieuw was able to
provide foundation for the statement in her trial testimony. We
therefore don’t find any abuse of discretion in the application of the
hearsay rules to the facts at hand.
¶29 The fourth clause, “After billing any expense after
insurance pays, you may need to go through her lawyer for pay,”
was deemed to be only the opinion of Ms. Vernieuw, and was
therefore stricken and the jury didn’t consider it in its deliberations.
We give the trial court deference and uphold its ruling.
B. Exclusion of Evidence
1. Testimony of Dr. White and Dr. Grigsby on Their Negligence
¶30 First, Ms. Arnold argues that the trial court erred in
determining that testimony by Dr. White and Dr. Grigsby about
whether they believed they had been negligent was irrelevant.
While relevant evidence is generally admissible, irrelevant evidence
isn’t. UTAH R. EVID. 402. “Evidence is relevant if . . . it has any
tendency to make a fact [of consequence] more or less probable than
it would be without the evidence.” UTAH R. EVID. 401. We have said
6Utah Rule of Evidence 801(d)(2) defines statements of an
opposing party to not be hearsay if it meets certain conditions.
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that “[t]rial courts have wide latitude in making determinations of
relevance, probativeness, and prejudice.” Diversified Holdings, L.C. v.
Turner, 2002 UT 129, ¶ 38, 63 P.3d 686 (alteration in original)
(citation omitted).
¶31 Accordingly, we conclude there was no abuse of discretion
in the trial court allowing testimony from Dr. White and
Dr. Grigsby regarding what they communicated to Ms. Arnold with
respect to their standard of care and not allowing their personal
opinions regarding their care. The purpose of this trial wasn’t to
determine whether the doctors breached a standard of care, but
whether Ms. Arnold should have known about her legal injury
within the specified timeframe. The court decided that the doctors’
personal beliefs about their standard of care were irrelevant to a
determination of when the statute of limitations began to run. We
agree.
2. Mr. Hintze’s Expert Testimony
¶32 Second, Ms. Arnold contends that the trial court erred in
prohibiting Mr. Hintze from testifying about the general steps an
attorney takes in a malpractice case. The trial court ruled that
Mr. Hintze could testify about his own actions and motivations, but
hadn’t been qualified as an expert witness and therefore couldn’t
establish what an attorney’s standard of care would be in this type
of case or what a reasonable attorney would do when litigating a
case similar to Ms. Arnold’s. We find no abuse of discretion in the
court’s application of the evidentiary rule regarding expert
witnesses to Mr. Hintze. See UTAH R. EVID. 702.
III. DIRECTED VERDICT
¶33 A directed verdict wasn’t warranted here. The issue of
when Ms. Arnold knew of her legal injury is a question of fact, but
the applicability of the discovery rule to the statute of limitations—
whether she should have known about her legal injury—is a mixed
question of law and fact. See In re Adoption of Baby B, 2012 UT 35,
¶¶ 51–52, 308 P.3d 382; Colosimo v. Roman Catholic Bishop of Salt Lake
City, 2007 UT 25, ¶ 11, 156 P.3d 806; see also State v. Pena, 869 P.2d
932, 935 (Utah 1994) (“Factual questions are generally regarded as
entailing the empirical, such as things, events, actions, or conditions
happening, existing, or taking place, as well as the subjective, such
as state of mind. Legal determinations, on the other hand, are
defined as those which are not of fact but are essentially of rules or
principles uniformly applied to persons of similar qualities and
status in similar circumstances.” (citations omitted)), abrogated on
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ARNOLD v. GRIGSBY
Opinion of the Court
other grounds by USA Power, LLC, v. PacifiCorp, 2016 UT 20, 372 P.3d
629.
¶34 “Trial courts are given primary responsibility for making
determinations of fact.” Pena, 869 P.2d at 935. In this case, the trial
court determined that Dr. Grigsby had presented enough evidence
at trial to give “a reasonable jury . . . a legally sufficient evidentiary
basis to find” that Ms. Arnold should have discovered her injury
more than two years before filing her complaint. UTAH R. CIV. P.
50(a)(1). “When a party challenges a trial court’s denial of a motion
for directed verdict . . . on the basis of insufficiency of evidence, . . .
[w]e reverse only if, viewing the evidence in the light most
favorable to the prevailing party, we conclude that the evidence is
insufficient to support the verdict.” Brewer v. Denver & Rio Grande
W. R.R., 2001 UT 77, ¶ 33, 31 P.3d 557 (citations omitted) (internal
quotation marks omitted).
¶35 Indeed, when the question, as here, is whether a jury
should be allowed to decide whether the overall syndrome of
evidence before it establishes that a plaintiff’s medical malpractice
suit is time-barred, we look to whether the particular evidence before
the jury could support such a verdict. For example, in Collins v.
Wilson, we upheld a jury’s verdict because the evidence before it—
notably, evidence that the plaintiff suspected that a doctor acted
negligently and evidence that the plaintiff’s expectations about how
long he’d have to stay in the hospital were “dashed soon after the
surgery” (and over two years before the plaintiff filed suit)—could
license a jury’s inference that the plaintiff’s suit was time-barred.
1999 UT 56, ¶ 18, 984 P.2d 960. The mode of analysis in Collins
unambiguously comports with the mode of analysis in Arnold IV,
where this court emphasized that a similar syndrome of evidence
could also be interpreted as giving rise only to a “mere suspicion.”
¶36 And this distinction makes sense. We trust, and it will
typically be the province of, a jury to parse the whole scheme of
individualized evidence before it to reach a just result regarding
whether a plaintiff in a medical malpractice action should have
known of a cause of action more than two years before filing suit.
It’s not the prerogative of either the trial court or the appellate
courts to “weigh evidence or assess credibility.” Mountain States Tel.
& Tel. Co. v. Atkin, Wright & Miles, Chartered, 681 P.2d 1258, 1261
(Utah 1984) (citation omitted); see also Bailey v. Bayles, 2002 UT 58,
¶ 19, 52 P.3d 1158 (“It is inappropriate for an appellate court . . . to
assume the role[s] of weighing evidence and making its own
findings of fact.” (citations omitted)).
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Cite as: 2018 UT 14Opinion of the Court
¶37 Although the evidence presented to the trial court in this
case wasn’t sufficient to sustain as a matter of law a summary
judgment for either party, it was sufficient to present to the jury to
weigh the evidence and make determinations of disputed material
facts; therefore the trial court correctly decided a directed verdict
was inappropriate and the jury’s verdict stands. Moreover, the
evidence before the jury was more than enough for a reasonable
jury to find in favor of Dr. Grigsby. As in Collins, the jury heard that
Ms. Arnold’s expectations about the complications she would suffer
from her colonoscopy—as well as the length of her stay in the
hospital—were repeatedly dashed more than two years before she
filed suit. First, she was told that it was a routine procedure and
that she was fine to be discharged. Then, a complication arose, she
entered the hospital for another stay, and she was again told she
was cured. And then yet another complication arose. She went back
in for another hospital stay. She was told she was “clean as a
whistle.” Not ten days later, she required emergency life-saving
surgery that resulted in a colostomy.
¶38 And, also like the plaintiff in Collins, Ms. Arnold suspected
that her doctors had acted negligently well over two years before
she filed suit—going so far as to refuse to sign any paperwork
because she planned to sue. The home healthcare nurse assigned to
her case noted on the paperwork that Ms. Arnold “has been told by
her lawyer not to sign any papers indicating she’ll pay. . . .
Apparently she’s preparing a suit for problems in the beginning of
the illness.” This evidence informs the significance a reasonable jury
might have ascribed to the troublesome course of Ms. Arnold’s
treatment—it reflects that her experience of the objectively
suspicious treatment she received had been of such a nature as to
put her on the alert that her complications might well have been
caused by her doctors’ negligence. This accumulated evidence
could have led a jury to believe that she had been put on alert of all
the facts necessary to lead an ordinary person using reasonable
diligence to conclude that a claim for negligence may exist.
¶39 In short, a reasonable jury, when confronted with these
pieces of evidence, could have inferred that Ms. Arnold should
have known that her injury was attributable to negligence over two
years before she initiated her medical malpractice action. Thus, it
would have been inappropriate for the judge to “weigh [the]
evidence or assess [the] credibility,” which would have effectively
usurped the jury’s role. Mountain States Tel. & Tel. Co., 681 P.2d at
1261. The trial court correctly denied her motion for directed
verdict.
15
ARNOLD v. GRIGSBY
Opinion of the Court
IV. JURY INSTRUCTIONS
¶40 Ms. Arnold claims that the trial court abused its discretion
in issuing the jury instructions. A trial court abuses its discretion
when it “relie[s] on an erroneous conclusion of law.” USA Power,
LLC v. PacifiCorp, 2016 UT 20, ¶ 75, 372 P.3d 629 (citation omitted)
(internal quotation marks omitted). When determining whether a
set of jury instructions sufficiently inform the jury, “we look at the
jury instructions in their entirety and will affirm when the
instructions taken as a whole fairly instruct the jury on the law
applicable to the case.” Id. (citation omitted) (internal quotation
marks omitted). This means that “a trial court does not err by
refusing a proposed instruction if the point is properly covered in
other instructions.” Id. (citation omitted) (internal quotation marks
omitted).
¶41 Ms. Arnold’s claims that the jury instructions were an
abuse of discretion are unsubstantiated. Ms. Arnold attempts to
show the insufficiency of the jury instructions by evaluating each
instruction separately, challenging the specific language in each
instruction rather than looking at them as a coherent set of
instructions. But taken as a whole, the jury instructions correctly
stated the law. In fact, the language in the instructions she
challenges are direct quotes from our opinion in Arnold IV. Because
of this, our “confidence in the jury’s verdict is [not] undermined” as
the instructions sufficiently informed the jury regarding to the
applicable law. Turner v. Univ. of Utah Hosps. & Clinics, 2013 UT 52,
¶ 17, 310 P.3d 1212 (citation omitted). Thus, the trial court didn’t
abuse its discretion with regard to the jury instructions.
CONCLUSION
¶42 We hold that there were material facts in dispute and that a
jury could permissibly find for Dr. Grigsby based on the evidence
before it. Therefore summary judgment and directed verdict were
unwarranted. We further hold that it wasn’t an abuse of discretion
for the court to admit Ms. Arnold’s husband’s testimony and the
nurse’s report. The trial court didn’t err in excluding the evidence
Ms. Arnold asserts should have been admitted. Finally, we
conclude that read as a whole, the jury instructions in this case
correctly stated the law of the case. We affirm the trial court and we
dismiss the cross-appeal as moot.
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