De Adder v. Intermountain Healthcare, Inc. ( 2013 )

2013 UT App 173_________________________________________________________
THE UTAH COURT OF APPEALS
DONALDA DE ADDER,
Plaintiff and Appellant,
v.
INTERMOUNTAIN HEALTHCARE, INC.,
Defendant and Appellee.
Opinion
No. 20110709‐CA
Filed July 11, 2013
Fourth District, Provo Department
The Honorable David N. Mortensen
No. 060401688
Randy S. Kester, Attorney for Appellant
Stuart H. Schultz, Suzette H. Goucher, and
Peter J. Baxter, Attorneys for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which
JUDGES J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN
concurred.
ROTH, Judge:
¶1 Donalda De Adder appeals from the grant of summary
judgment in favor of Intermountain Healthcare, Inc. (IHC). We
affirm.
BACKGROUND
¶2 De Adder underwent total right knee replacement in March
2004 at an IHC facility. Prior to surgery and for two days post‐
operation, De Adder did not have any symptoms of damage to her
right peroneal nerve or of palsy, also referred to as “drop foot” or
“foot drop,” in her right foot. On the third day following surgery,
however, De Adder began complaining of pain in her right lower
De Adder v. IHC
extremity. De Adder’s orthopedic surgeon, Dr. Richard Taylor
Jackson, diagnosed permanent damage to the right peroneal nerve
and palsy to her right foot.1 Dr. Jackson concluded that the damage
resulted from the use of a continuous passive motion (CPM)
device2 that he had ordered as therapy for De Adder’s knee
following surgery. De Adder sued IHC, alleging that its nurses
were negligent in monitoring, managing, and maintaining the CPM
device. De Adder designated Dr. Jackson as her only expert witness
regarding the post‐operative standard of care required of nurses
attending a patient receiving CPM therapy following total knee
replacement surgery, the breach of that standard by IHC’s nurses,
and how the breach caused De Adder’s injuries.
1. As the district court recognized, there was a genuine issue about
whether and when De Adder showed signs of foot drop, but the
district court “determine[d] that the presence or non‐presence of
the foot drop is not material to the motion upon the basis brought
forward.” The parties do not challenge the court’s assessment, and
accordingly, we treat it as a nonmaterial dispute, accepting, for
purposes of appeal, De Adder’s position that she did not
experience any foot drop until three days post‐surgery, see Black v.
Allstate Ins. Co., 2004 UT 66, ¶ 9, 100 P.3d 1163 (explaining that “[i]n
reviewing a grant of summary judgment, an appellate court views
the facts in a light most favorable to the losing party” (citation and
internal quotation marks omitted)).
2. CPM is a type of physical therapy commonly ordered
following knee surgery. It is “[a] technique in which a
joint, usually the knee, is moved constantly in a mechanical
splint to prevent stiffness and to increase the range of
motion.” Random House, Inc., Dictionary.com Unabridged,
available at http://dictionary.reference.com/browse/continuous+
passive+motion (last visited June 27, 2013). CPM is carried
out by “a machine that is used to move a joint without
the patient having to exert any effort.” Jonathan Cluett, CPM ‐
Continuous Passive Motion, ABOUT.COM (June 15, 2009),
http://www.orthopedics.about.com/od/hipkneetreatments/g/cp
m.htm.
20110709‐CA 2 2013 UT App 173De Adder v. IHC
¶3 IHC moved for summary judgment. In its supporting
memorandum, IHC argued that expert testimony was essential to
a negligence claim of this sort and that De Adder had “failed to
produce expert testimony that [IHC] breached the standard of
care.” See generally Jensen v. IHC Hosps., Inc., 2003 UT 51, ¶ 96, 82
P.3d 1076 (“To prove medical malpractice, a plaintiff must establish
(1) the standard of care by which the [health care provider’s]
conduct is to be measured, (2) breach of that standard by the
[provider], (3) injury that was proximately caused by the
[provider’s] negligence, and (4) damages.” (citation and internal
quotation marks omitted)). Specifically, IHC contended that Dr.
Jackson could not provide the required expert testimony because
he does not practice in the same specialty as the nurses and his
deposition testimony did not otherwise establish a sufficient
foundation to admit his testimony about the standard of care
applicable to the nursing staff. See id. (“[T]he plaintiff is required to
prove the standard of care through an expert witness who is
qualified to testify about the standard.”).
¶4 De Adder opposed IHC’s summary judgment motion with
a Verified Expert Report from Dr. Jackson, which she attached to
her response. Dr. Jackson stated, “I am familiar with the standard
of care required of surgeons, assistants, post surgery nursing and
physical therapy care required [to] perform and manage a
successful result from [joint] surgeries.” According to Dr. Jackson,
this standard of care “requires [attendant hospital personnel] to
tim[el]y observe and detect malfunctioning, misplacement or any
failure of the CPM machine” through “diligent monitoring of
complaints of pain, discomfort and unusual symptoms.” Dr.
Jackson expressed his opinion, “[t]o a reasonable degree of medical
certainty,” that De Adder’s “injury occurred as a result of the
failure of attendant hospital personnel to properly monitor the post
operative condition of [her] right lower extremity” because De
Adder’s “injury resulted from prolonged pressure of the peroneal
nerve by an element of the CPM machine.” Dr. Jackson further
opined that De Adder’s injury could have been prevented “had
attendant hospital personnel acted within the standard of care
20110709‐CA 3 2013 UT App 173De Adder v. IHC
regarding monitoring the use of the CPM machine, both function
and timing.”
¶5 At the hearing on the summary judgment motion, the
district court admitted into evidence all of Dr. Jackson’s affidavit
statements pertaining to the standard of care and his opinions
regarding the cause of De Adder’s injuries. The court also received,
upon the parties’ stipulation, a copy of Dr. Jackson’s entire
deposition. Finally, the court allowed De Adder to supplement the
record with Dr. Jackson’s post‐operative order for CPM therapy.
¶6 In a subsequent written order, the district court granted
summary judgment in favor of IHC on the basis that Dr. Jackson
was “not qualified to testify as an expert against [IHC] because he
is not knowledgeable about the standard of care” that applies to the
nurses who cared for her. The court explained that although a
doctor might be competent to testify about the standard of care
applicable to a nurse under certain circumstances, Dr. Jackson
could not do so here because his verified expert report and
deposition testimony failed to establish either that the standard of
care for a nurse was the same as for an orthopedic surgeon or that
Dr. Jackson otherwise had substantial knowledge of the standard
of care required of a nurse providing CPM therapy.3 De Adder now
appeals.
3. Following the grant of summary judgment, De Adder filed a
motion to amend the judgment, in which she asserted that the court
had erroneously applied the law of summary judgment. The
district court heard argument and denied that motion. In her notice
of appeal, De Adder indicates that she is challenging the court’s
ruling on the motion to amend as well as its summary judgment
decision. In her briefing to this court, however, De Adder does not
address the denial of her motion to amend, other than as
background for her summary judgment claim, and we therefore do
not consider it as a separate matter. Because it raises the same
issues as the grant of summary judgment in favor of IHC, it is
unlikely that our consideration of De Adder’s motion to amend
would yield a different result on appeal.
20110709‐CA 4 2013 UT App 173De Adder v. IHC
ISSUES AND STANDARDS OF REVIEW
¶7 De Adder contends that the district court abused its
discretion in determining that Dr. Jackson’s testimony was
inadmissible to establish the nursing standard of care, thereby
rendering the grant of summary judgment inappropriate.
Specifically, De Adder asserts that “the trial court, under the guise
of a summary judgment proceeding, conduct[ed] a factual
determination as to the adequacy of Dr. Jackson’s credentials to
testify as to the standard of care applicable to [the] nurse.” She
claims the court did this by “initiat[ing] its own [Utah] Rule [of
Evidence] 702 examination” in the absence of a motion and briefing
on the issue and without conducting a formal hearing.
¶8 “We first address the court’s rulings related to the expert
testimony and then, given our conclusions on those issues, review
the trial court’s grant of summary judgment.” Boice ex rel. Boice v.
Marble, 1999 UT 71, ¶ 6, 982 P.2d 565. “The trial court has wide
discretion in determining the admissibility of expert testimony . . . .
Accordingly, we disturb the district court’s decision [not to admit]
expert testimony only when it exceeds the limits of reasonability.”
Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr., 2010 UT 59, ¶ 5,
242 P.3d 762 (citations and internal quotation marks omitted).
Summary judgment is appropriate only when “there is no genuine
issue as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law.” Utah R. Civ. P. 56(c). We therefore
review a court’s summary judgment ruling for correctness. State ex
rel. School & Inst. Trust Land Admin. v. Mathis, 2009 UT 85, ¶ 10, 223
P.3d 1119.
ANALYSIS
I. The District Court’s Rulings on the Admissibility of Dr.
Jackson’s Testimony
¶9 IHC’s motion for summary judgment challenged Dr.
Jackson’s qualifications to present expert testimony regarding the
20110709‐CA 5 2013 UT App 173De Adder v. IHC
standard of care for nurses using the CPM device on the basis that
Dr. Jackson is an orthopedic surgeon with “no training or
experience as a nurse” or any experience with operating or
monitoring the CPM device. The district court agreed with IHC
and excluded Dr. Jackson’s testimony. Ordinarily, because of the
district court’s discretion in this area, we afford the court
considerable latitude in determining the admissibility of expert
testimony. Eskelson, 2010 UT 59, ¶ 5. De Adder, however, contends
that the court’s determination of Dr. Jackson’s qualifications
involved impermissible fact finding at the summary judgment
stage of proceedings. Therefore, we are presented with a threshold
issue of whether the court properly evaluated Dr. Jackson’s
qualifications for purposes of the summary judgment motion.
A. The District Court Properly Evaluated Dr. Jackson’s
Qualifications as an Expert on the Nursing Standard of
Care.
¶10 To survive a motion for summary judgment, the nonmoving
party “must set forth specific facts showing that there is a genuine
issue for trial” through “affidavits or as otherwise provided” by
rule 56 of the Utah Rules of Civil Procedure. Utah R. Civ. P. 56(e);
see also Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d 600 (explaining
that when the nonmoving party bears the burden of proof at trial,
the moving party must show “that there is no genuine issue of
material fact” and “[u]pon such a showing, . . . the burden then
shifts to the nonmoving party who ‘may not rest upon the mere
allegations or denials of the pleadings,’ but ‘must set forth specific
facts showing that there is a genuine issue for trial’” (quoting Utah
R. Civ. P. 56(e))). Specifically, to recover on a claim of medical
malpractice, “the plaintiff must produce expert testimony” to show
that there is at least an issue of fact regarding whether “the medical
professional’s negligence proximately caused the plaintiff injury.”
Butterfield v. Okubo, 831 P.2d 97, 102 (Utah 1992).
¶11 In Butterfield, the Utah Supreme Court addressed the
question of what a plaintiff must include in an expert affidavit with
20110709‐CA 6 2013 UT App 173De Adder v. IHC
regard to the underlying data supporting an expert’s opinion in
order to withstand summary judgment. Id. at 102–03. The court
ruled that an expert affidavit must contain “specific evidentiary
facts” supporting the expert’s opinions and cannot “merely reflect[]
the affiant’s conclusions.” Id.To hold that [the rules of evidence] prevent[] a court
from granting summary judgment against a party
who relies solely on an expert’s opinion that has no
more basis in or out of the record than [the plaintiff’s
expert’s] theoretical speculations would seriously
undermine the policies of Rule 56 . . . . The position
that an expert’s opinion that lacks any credible
support creates an issue of ‘fact’ is clearly untenable.
Id. at 103 (alterations and omission in original) (citation and
internal quotation marks omitted). This principle is as applicable
to an expert’s qualifications as it is to the reliability of the expert’s
opinion. For example, in Hubbard v. Wansley, 2005‐CA‐01055‐SCT,
954 So. 2d 951 (Miss. 2007) (en banc), the Mississippi Supreme
Court observed,
The law empowers a trial judge to determine
whether a proffered expert is qualified to testify and
does not restrict exercise of this power to the trial
stage only. That is, a judge has as much power to
resolve doubts on qualifications of proffered experts
during the summary judgment stage as he has
during the trial stage. And of course, the standard
which [the appellate court] must apply when
reviewing a trial judge’s decision to disqualify
remains unchanged—notwithstanding that the
decision was made during the summary judgment
stage. That is, this Court will determine whether the
trial judge abused his discretion.
20110709‐CA 7 2013 UT App 173De Adder v. IHC
Id ¶ 11.4 And our supreme court approved a similar approach in
Boice ex rel. Boice v. Marble, 1999 UT 71, 982 P.2d 565, where it
explained that appellate courts afford broad discretion to a district
court’s ruling on the admissibility of expert testimony, even in the
context of a summary judgment ruling. Id. ¶¶ 6–7.
¶12 According to De Adder, however, rule 702 of the Utah Rules
of Evidence, which was amended in 2007, no longer demands that
an expert affidavit contain “specific evidentiary facts” showing the
expert’s knowledge of the standard of care as required by
Butterfield. Rather, she contends, rule 702 requires merely a
“threshold showing” of reliability. To support her position, De
Adder relies on the Utah Supreme Court’s decision in Eskelson ex
rel. Eskelson v. Davis Hospital & Medical Center, 2010 UT 59, 242 P.3d
762, which addresses the amended rule 702.
¶13 In Eskelson, the Utah Supreme Court explained that rule 702
“‘assigns to trial judges a “gatekeeper” responsibility to screen out
unreliable expert testimony.’” Id. ¶ 12 (quoting Utah R. Evid. 702
advisory committee note). In its role as a gatekeeper, a trial court
should employ a “degree of scrutiny . . . [that] is not so rigorous as
to be satisfied only by scientific or other specialized principles or
methods that are free of controversy or that meet any fixed set of
criteria fashioned to test reliability” but rather should look for
“only a ‘threshold showing’ of reliability.” Id. (quoting Utah R.
Evid. 702(b)–(c)). De Adder asserts that Dr. Jackson’s statements
that he was familiar with the standard of care and that the nurses’
breach of that standard caused De Adder’s injury were sufficient
to meet this threshold requirement.
4. Hubbard v. Wansley, 2005‐CA‐01055‐SCT, 954 So. 2d 951 (Miss.
2007) (en banc), addressed the interrelationship between rule 56 of
the Mississippi Rules of Civil Procedure and rule 702 of the
Mississippi Rules of Evidence, which governs the admissibility of
expert testimony. Id. ¶¶ 9–13. Mississippi and Utah employ the
same standard for granting summary judgment. Compare Miss. R.
Civ. P. 56(c), with Utah R. Civ. P. 56(c). Moreover, Mississippi’s
evidence rule 702 is virtually identical in substance to Utah’s
version. Compare Miss. R. Evid. 702, with Utah R. Evid. 702(a)–(b).
20110709‐CA 8 2013 UT App 173De Adder v. IHC
¶14 We disagree. The plaintiff in Eskelson sought to introduce the
testimony of Dr. Bateman to establish that Dr. Apfelbaum, the
emergency room physician who had surgically removed a bead
from the plaintiff’s son’s ear, had performed negligently. Id. ¶¶ 2–3.
There was no dispute that Dr. Bateman had the “‘knowledge, skill,
experience, training, or education’” to testify about Dr.
Apfelbaum’s standard of care. Id. ¶ 7 (quoting Utah R. Evid.
702(a)). The district court, however, granted summary judgment to
the defendant on the basis that “Dr. Bateman’s testimony was not
based on any scientific, technical, or other [specialized] knowledge
. . . and that his methods were not generally accepted by the
relevant scientific community.” Id. ¶ 4. The supreme court
reversed, concluding that because Dr. Bateman had established that
he had “experience with the removal of foreign objects from the
ears of children” and his opinion was based on facts contained in
the record, he had made a threshold showing of the reliability of
his expert opinion sufficient to survive summary judgment. Id.
¶¶ 15–16.
¶15 Thus, Eskelson does not seem to add anything of substance
to the analysis of the qualifications issue before us. See id.; see also
Butterfield v. Okubo, 831 P.2d 97, 102–03 (Utah 1992) (explaining that
an expert affidavit must contain “specific evidentiary facts”
supporting the expert’s opinions and cannot “merely reflect[] the
affiant’s conclusions”). While Eskelson specifically addresses the
threshold level of evidence on the reliability of an expert’s opinions
necessary to survive summary judgment, it does not undermine
Butterfield’s holding that such a threshold showing must be made.
Both Eskelson and Butterfield establish that the proposed expert
must present some factual basis to meet the threshold requirements
of rule 702. De Adder has not satisfied this threshold burden with
regard to the qualifications of Dr. Jackson to testify as to the
applicable nursing standard of care.
¶16 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.” Dikeou v.
Osborn, 881 P.2d 943, 947 (Utah Ct. App. 1994); see also MUJI CV302
20110709‐CA 9 2013 UT App 173De Adder v. IHC
(2d. ed. 2011), available at http://www.utcourts.gov/resources/muji
(requiring that a nurse be shown to have acted with the “same
degree of learning, care, and skill ordinarily used by other qualified
nurses in good standing providing similar care”). Although Utah
appellate courts have not yet addressed the application of this rule
to a situation where it is proposed that a doctor testify as to the
standard of care for a nurse, the underlying rationale seems to
support similar treatment. Rule 702 contemplates the testimony of
an expert having “knowledge, skill, experience, training, or
education” on the particular subject matter on which he or she
intends to opine. Utah R. Evid. 702(a). Nurses receive different
training, have different licensing qualifications, and fulfill different
functions in patient care than do doctors. See Sullivan v. Edward
Hosp., 806 N.E.2d 645, 658–59 (Ill. 2004) (“Physicians often have no
first‐hand knowledge of nursing practice except for [limited]
observations made in patient care settings. The physician rarely, if
ever, teaches in a nursing program nor is a physician responsible
for content in nursing texts. In many situations, a physician would
not be familiar with the standard of care or with nursing policies
and procedures which govern the standard of care.” (citation and
internal quotation marks omitted)); see also Turner v. University
of Utah Hosps., 2011 UT App 431, ¶¶ 16–17, 21, 271 P.3d 156(observing that a doctor’s testimony about the nursing standard of
care might have been inappropriate because no foundation had
been laid under rule 702 to demonstrate that the physician was
familiar with the nursing standard of care but ultimately
concluding that its admission was harmless), cert. granted, 280 P.3d
421 (Utah May 18, 2012) (No. 20120120); MUJI CV302 (2d. ed. 2011).
We therefore conclude 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 against” a nurse. See Dikeou, 881 P.2d at 947.
¶17 However, there is an exception to the general rule that a
physician cannot testify as an expert against another provider who
has a different specialty. The exception applies when “a medical
expert witness brought in to testify on the applicable standard of
care . . . is knowledgeable about the applicable standard of care or
[where] the standard of care in the expert’s specialty is the same as
the standard of care in the alleged negligent doctor’s specialty.” Id.;
20110709‐CA 10 2013 UT App 173De Adder v. IHC
see also, e.g., Creekmore v. Maryview Hosp., 662 F.3d 686, 692–93 (4th
Cir. 2011) (finding 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 (citation and
internal quotation marks omitted)); Staccato v. Valley Hosp., 170 P.3d
503, 504 (Nev. 2007) (per curiam) (stating that a physician is
“qualified to testify as to the accepted standard of care for a
procedure or treatment [by another health care provider] if the
physician’s . . . experience, education, and training establish the
expertise necessary to perform the procedure or render the
treatment at issue”). A natural corollary, however, is that where the
physician proffered as an expert lacks the requisite familiarity with
the nursing standard of care for a particular procedure and his or
her field of expertise does not share a similar standard with the
nursing field at issue, the physician’s opinions are not admissible.
Pendley v. Southern Reg’l Health Sys., Inc., 704 S.E.2d 198, 203 (Ga. Ct.
App. 2010) (holding that the court did not abuse its discretion in
excluding a physician‐expert’s testimony on the standard of care
for the treating nurse where the doctor “did not train or practice as
a nurse, did not train nurses, did not supervise nurses outside of
normal nurse–physician interactions, and did not hold himself out
to be an expert in nursing or in the standard of care of nurses”);
Simonson v. Keppard, 225 S.W.3d 868, 873–74 (Tex. App. 2007)
(concluding that the district court abused its discretion in allowing
the doctor to testify as to the standard of care for a nurse
practitioner where the doctor’s affidavit showed that he was not
familiar with the standard of care).
¶18 Although Dr. Jackson states that he is familiar with the
standard of care applicable to the nurses who attended to De
Adder, nowhere in his verified expert report or in his deposition5
5. The record contains only five pages of Dr. Jackson’s deposition,
which are attached as an exhibit to IHC’s reply to De Adder’s
opposition to the motion for summary judgment. Apparently, upon
the parties’ stipulation to have the district court review Dr.
Jackson’s full deposition testimony, the court accepted IHC’s copy,
(continued...)
20110709‐CA 11 2013 UT App 173De Adder v. IHC
does Dr. Jackson set out any facts that establish that he has either
training or experience to support that conclusion or that the
applicable nursing standard of care is the same or similar to the
standard applicable to his own specialty. See Butterfield, 831 P.2d at
102 (requiring an affidavit to be supported with “specific
evidentiary facts”). He does not testify that he has worked or
trained as a nurse or that he has experience training nurses.
Instead, De Adder simply argued to the district court that Dr.
Jackson, by virtue of performing the knee surgery, acted as the
“captain of the ship,” who “knows the functions of each member
of the team” and is “in charge of delegating tasks . . . [and]
determin[ing] what the proper procedures are.” De Adder’s
“captain of the ship” argument, however, only establishes that Dr.
Jackson knows each member of the medical team’s general
“obligations and duties” to successfully care for the patients and
“where one [team member]’s acts stop and the next person[’s]
begins,”6 not that he is familiar with the particular standard by
which each team member is expected to carry out those obligations
and duties.
¶19 Furthermore, Dr. Jackson’s report opined, “The standard of
care of the attendant hospital personnel requires them to tim[el]y
observe and detect malfunctioning, misplacement or any failure of
5. (...continued)
which counsel had brought with her to the hearing, and even
marked it as exhibit 1 to the hearing. The transcript was apparently
then returned to IHC. However, other than the five pages, De
Adder has not included the deposition transcript as a part of the
record on appeal. See Utah R. App. P. 11(a), (c), (e) (explaining the
appellant’s duty to “take any . . . action necessary to enable the
clerk of the trial court to assemble and transmit” to the appellate
court the complete record). Therefore, we consider only the
excerpts contained within the record.
6. But, as discussed below, Dr. Jackson did not appear to know
whether the nursing staff and the physical therapists had distinct
roles in the management of the CPM process or whether (and how)
their duties might overlap.
20110709‐CA 12 2013 UT App 173De Adder v. IHC
the CPM machine,” which includes “diligent monitoring of
complaints of pain, discomfort and unusual symptoms.” “[H]ad
[the nurses] been timely in their attendant observation and
interaction with the patient, this prolonged pressure on the nerve
while attached to th[e CPM] machine, would not have occurred
and Ms. De Adder would not have suffered this injury.” Dr.
Jackson’s report and deposition testimony, however, do not include
facts that explain what it means to “tim[el]y observe” or
“diligent[ly] monitor[]” the CPM device. For example, Dr. Jackson
does not explain how frequently a nurse is required by the
applicable standard of care to check the CPM device’s operation.
Nor does he provide any description of how a nurse following the
proper standard should assess whether the patient has been
subjected to “prolonged pressure” in the course of treatment with
the CPM machine. Indeed, Dr. Jackson acknowledges in his
deposition that “I really don’t know what the protocol is now” for
CPM therapy because “I don’t order [the protocol]. I just order
CPM,” which he acknowledges is “done under the direction of the
physical therapy” by “the nurses on the floor.” In fact, he explains
that his post‐operative order for CPM “doesn’t say how often it
should be on and off the patient” but instead those decisions are
“left . . . up to [physical] therapy.” And although De Adder argued
at the summary judgment hearing that Dr. Jackson merely
“misstate[d]” his role when he testified that he simply orders CPM
and leaves it to the physical therapists and nurses to perform, when
pressed on whether that “misstatement” was ever corrected, De
Adder indicated that a formal correction had not been made but
that other parts of the deposition supported his claim that he was
familiar with the standard of care in operating a CPM device. De
Adder then asked for leave to supplement the record with Dr.
Jackson’s post‐operative order and the entire deposition, which the
court granted.
¶20 The court subsequently reviewed both the order and the
deposition testimony and concluded that “Dr. Jackson fail[ed] to
provide the foundational basis whereupon this court can conclude
that he is competent to testify as to the standard of care for a nurse”
administering CPM. We agree. The post‐operative order simply
prescribes, “TKA Protocol: CPM to begin day of surgery.” And
20110709‐CA 13 2013 UT App 173De Adder v. IHC
nowhere in the portion of Dr. Jackson’s deposition transcript
included in the record (or elsewhere in the record) does he give any
indication that the term “TKA Protocol” in his order incorporates
or expresses a particular regimen or schedule of therapy. Because
De Adder has not included the full deposition transcript on appeal,
we presume that the remainder of the deposition testimony
supports the district court’s conclusion that there was a lack of
foundation for Dr. Jackson’s testimony on the nursing standard of
care. See Goodman v. Wilkinson, 629 P.2d 447, 449 (Utah 1981)
(explaining that when the record is incomplete on appeal, appellate
courts presume the omitted portions support the district court’s
ruling).
¶21 Thus, the specific facts elicited in Dr. Jackson’s deposition
testimony substantially undermine the later statement in his expert
report that he is familiar with the nursing standard of care for
administering CPM therapy. And that conclusory statement,
unsupported by facts, cannot create an issue of material fact to
survive summary judgment. See Dairy Prod. Servs., Inc. v. City of
Wellsville, 2000 UT 81, ¶ 54, 13 P.3d 581 (“An affidavit that merely
reflects the affiant’s unsubstantiated opinions and conclusions is
insufficient to create an issue of fact.”); see also Butterfield v. Okubo,
831 P.2d 97, 103 (Utah 1992) (“The position that an expert’s opinion
that lacks any credible support creates an issue of fact is clearly
untenable.” (citation and internal quotation marks omitted)).
B. The District Court Did Not Otherwise Abuse Its Discretion
in Precluding Dr. Jackson from Testifying as an Expert.
¶22 De Adder nevertheless claims that the district court erred in
granting summary judgment because the court “initiated its own
[Utah] Rule [of Evidence] 702 examination” without a motion and
in the absence of any briefing on the issue. In support of her claim,
De Adder asserts that “[i]t was impossible for [her], in responding
to the Motion for Summary Judgment to have predicted that the
trial court would . . . unilaterally conduct its own Rule 702
examination based on the summary judgment pleadings” where
IHC never “allude[d] to or mention[ed] Rule 702” in its
memorandum supporting its motion for summary judgment or
20110709‐CA 14 2013 UT App 173De Adder v. IHC
made a “separate motion to strike Dr. Jackson’s affidavit or
evaluate the same under Rule 702.”
¶23 Although the best practice is for parties to identify the rule
upon which a motion is based, we are not convinced that “[i]t was
impossible for [De Adder]” to “predict[]” that the district court
would conduct a rule 702 assessment of Dr. Jackson’s
qualifications. In the introduction to its summary judgment
memorandum, IHC explained that it was entitled to summary
judgment because “Dr. Jackson is not qualified to testify regarding
the standard of care applicable to [IHC nurses]” and without such
an expert, De Adder could not succeed on her negligence claim as
a matter of law. In its argument section, IHC sets forth the standard
by which a medical professional’s expertise to testify about a
standard of care is judged and specifically addresses why Dr.
Jackson’s deposition testimony does not demonstrate that he is
qualified. Thus, based on the subject matter of the summary
judgment motion and IHC’s specific arguments, it was quite clear
that Dr. Jackson’s qualifications as an expert were at issue. And De
Adder, in fact, understood this. In her opposition to the motion for
summary judgment, De Adder argued the case for Dr. Jackson’s
qualification as an expert to testify as to the standard of care
expected of the nurses providing CPM therapy. Further, she
attached to her opposition memorandum Dr. Jackson’s verified
expert report, in which he asserted his familiarity with the nurses’
standard of care. Though the parties inexplicably omitted specific
reference to rule 702, both IHC’s arguments and De Adder’s
response invited the district court to consider Dr. Jackson’s
qualifications to render an expert opinion under the most directly
pertinent authority, rule 702. We therefore conclude that the district
court’s rule 702 analysis was both appropriate and entirely
predictable under the circumstances.
¶24 Furthermore, we cannot agree with De Adder’s argument
that she was improperly “precluded from seeking a Rule 702
hearing in which to conduct a more detailed examination of Dr.
Jackson and other witnesses to meet the burden imposed by the
court.” In a motion to amend the judgment, filed after the district
court’s ruling granting summary judgment to IHC, De Adder
20110709‐CA 15 2013 UT App 173De Adder v. IHC
asked the court to conduct a rule 702 hearing, at which she would
“present [Dr. Jackson] and have him testify.” The district court
responded that such a hearing seemed both unnecessary and
improper. The court reasoned that at the summary judgment stage,
an expert affidavit need only contain information that indicates the
expert is qualified, and because the affidavit is not subject to cross‐
examination, its contents are completely within the control of the
proffering party and the expert, who can include any information
relating to qualifications they deem pertinent. Further, the court
expressed concern about holding a hearing “to take evidence” as
part of a summary judgment proceeding. The district court’s
reluctance to conduct such a proceeding seems appropriate where
De Adder was aware of the basis for the summary judgment
motion and had the unimpeded opportunity to submit her expert’s
affidavit and any other pertinent evidence. That the affidavit lacked
factual support for Dr. Jackson’s purported familiarity with the
nursing standard of care is a result of De Adder’s choices in
crafting a response to IHC’s motion for summary judgment, and
she has not persuaded us that the district court was required to
conduct an evidentiary hearing to make up for deficiencies in that
response. Rather, holding such a hearing under the circumstances
would distort the established summary judgment process and
undermine its purposes. See generally Stevens‐Henegar Coll. v. Eagle
Gate Coll., 2011 UT App 37, ¶ 25, 248 P.3d 1025 (“A major purpose
of summary judgment is to avoid unnecessary trial by allowing the
parties to pierce the pleadings to determine whether there is a
genuine issue to present to the fact finder. In accordance with this
purpose, specific facts are required to show whether there is a
genuine issue for trial. The allegations of a pleading or factual
conclusions on an affidavit are insufficient to raise a genuine issue
of fact.” (emphasis, citation, and internal quotation marks
omitted)). Therefore, the court’s decision to deny De Adder’s
request for an evidentiary hearing was well within its discretion.7
7. Because IHC was seeking dismissal of De Adder’s claim based
on the lack of an expert, it was not necessary for it to file a motion
to strike Dr. Jackson’s expert report. Litster v. Utah Valley Cmty.
Coll., 881 P.2d 933, 936 n.2 (Utah Ct. App. 1994) (explaining that
(continued...)
20110709‐CA 16 2013 UT App 173De Adder v. IHC
II. The District Court’s Ruling on Summary Judgment
¶25 Finally, we address whether the district court correctly
granted summary judgment in favor of IHC. In a medical
malpractice case, summary judgment may be granted if a plaintiff
fails to present prima facie evidence of “the standard of care by
which the [health care provider]’s conduct is to be measured.”
Dikeou v. Osborn, 881 P.2d 943, 946 (Utah Ct. App. 1994) (citation
and internal quotation marks omitted); see also Jensen v. IHC Hosps.,
Inc., 2003 UT 51, ¶ 96, 82 P.3d 1076 (“To prove medical malpractice,
a plaintiff must establish (1) the standard of care by which the
[health care provider’s] conduct is to be measured, (2) breach of
that standard by the [provider], (3) injury that was proximately
caused by the [provider’s] negligence, and (4) damages.” (citation
and internal quotation marks omitted)). A standard of care must be
established by an expert. Jensen, 2003 UT 51, ¶ 96. Because we
conclude that there was no error in the district court’s decision that
Dr. Jackson’s expert testimony on the standard of care for the
nurses providing the CPM therapy was inadmissible, De Adder
could not make out a prima facie case of medical malpractice, and
summary judgment was proper.
CONCLUSION
¶26 De Adder did not present qualified expert testimony to
support her claim of medical negligence. We therefore affirm the
grant of summary judgment in favor of IHC.
7. (...continued)
where the “motion for summary judgment alone required the trial
court to address whether any affidavits submitted in opposition to
the motion” created issues of material fact, a separate motion to
strike or an objection to the affidavit itself were not required).
Accordingly, IHC’s failure to file a motion to strike Dr. Jackson’s
expert report or affidavit does not provide a basis for reversal, as
De Adder claims.
20110709‐CA 17 2013 UT App 173