DocketNumber： No. 20120352-CA
Citation Numbers： 320 P.3d 1037, 2014 UT App 40
Judges： Authored, McHugh, Roth, Voros
Filed Date： 2/21/2014
Status： Precedential
Modified Date： 1/12/2023
Opinion
T1 Jonna M. (Shannon) Lawrence
BACKGROUND
12 Shannon went to the emergency room at St. Mark's Hospital on January 22, 2007, seeking treatment for an allergic reaction to Tylenol 3, a common painkiller that she had taken following dental work earlier that day. Dr. Paradise treated Shannon in the emer-geney room and prescribed several medi
T3 Later that day, Dr. Paradise spoke with Shannon about the erroneous administration of the epinephrine and explained that she needed to stay in the hospital for observation. Hospital administrators and risk managers who met with Shannon and her family during her hospitalization also acknowledged that an error had been made. Shannon contacted her family attorney, who may have been present during some of the conversations. Shannon recuperated enough to be discharged within a week, but she complains of ongoing symptoms and serious medical conditions allegedly caused by the intravenous administration of epinephrine.
T4 After her discharge, Shannon made multiple visits to Hospital's emergency room. On the first visit, the attending physician performed a full assessment but found no physical abnormalities except for mouth sores. During the second visit, Shannon underwent a variety of cardiac and neurologic tests, which all came back negative. After four additional visits, Shannon's physicians still could not discover any physical problems, other than an unrelated kidney infection.
T 5 On December 15, 2008, Shannon filed a complaint against Hospital seeking damages under a theory of negligence. In particular, Shannon claimed that the intravenous delivery of the epinephrine caused her to suffer anoxic brain damage,
T7 Shannon also filed a pretrial motion to exclude evidence. Specifically, she moved to exclude any references to her alleged substance abuse that predated the hospitalization, as well as evidence that she had been charged with misdemeanor offenses, which included charges resulting from a July 4, 2011 arrest for driving under the influence (DUI) and possession of drug paraphernalia. At a pretrial hearing, the trial court excluded most of the misdemeanor charges but ruled that the possession of paraphernalia charge "is relevant because it ties into whether or not there is substance abuse as an ongoing issue in [Shannon's] life and whether the substance abuse provides an alternative causation for her symptom{[s]." Although the trial court ruled that the drug paraphernalia charge was "fair for the defense to go into," it excluded evidence of Shannon's DUI charge, her failure to pass the field sobriety test, and the arresting officer's observations stemming from the arrest. The parties later stipulated that the jury could be informed of the paraphernalia charge by the following statement, which the trial court read to the jury: "[OJn July 4, 2011 [Shannon] was in possession of a plastic [pen] straw with opiate residue."
18 During trial, Shannon argued that Nurse's negligence caused the epinephrine to reach her bloodstream too quickly, similar to the effects of a drug overdose, thereby resulting in permanent brain and heart tissue damage. Shannon sought $5.7 million in damages for her injuries. Hospital countered that the "wrong route" delivery of the epinephrine did not cause harm to Shannon and that her lingering medical complaints were due to preexisting conditions. Hospital's counsel read to the jury Shannon's admission that she had suffered from anxiety, hyperventilation, and chest pain since 1995; from neek and shoulder pain since 2002; and from headaches since 2006. Hospital's counsel also read to the jury Shannon's acknowledgment that in the year prior to the intravenous epinephrine injection, she had been treated for headaches, anxiety, and neck and shoulder pain. Hospital argued that Shannon's ongoing physical complaints stem from somatoform disorder, which is a term used when psychological issues are manifested as physical complaints that have no physiological explanation.
T9 Hospital also presented Shannon's medical records from Dr. Shockey, a pulmonary critical care specialist who treated Shannon in the ICU. Dr. Shockey's report stated that his physical examination of Shannon after her transfer to the ICU revealed normal neurological function and no abnormalities relating to her neck or shoulders. However, Dr. Shockey's records indicated that Shannon had pulmonary edema "secondary to intravenous epinephrine."
110 Both sides supported their theories of causation with expert testimony. Shannon called two specialists in physical medicine, rehabilitation, and pain medicine (physiatrists); a neurologist and a neu-ropsychologist. Dr. Fish, one of the phy-siatrists, testified that the intravenous delivery of epinephrine caused Shannon's current symptoms. Dr. Krusz, the neurologist, opined that Shannon had received an epinephrine dose three times larger than normal that led to cardiac and pulmonary problems, which caused anoxic brain injury. On cross-examination, Dr. Krusz acknowledged that it is a "speculative question" how Shannon would have reacted had the epinephrine been administered as ordered and conceded that a person might also react adversely to a normal dose of epinephrine administered subcutaneously. Dr. Loong, the neuropsychologist, testified that all of Shannon's current symptoms are explained by known medical conditions, which he indicated rules out a diagnosis of somatoform disorder. In addition, Dr. An-den, the second physiatrist, who had treated Shannon for musculoskeletal problems, diagnosed Shannon with thoracic outlet syndrome and myofascial pain syndrome.
{11 Hospital presented testimony from five expert witnesses in its defense, including a neuroradiologist, a neuropsychologist, a cardiologist, a neurologist, and a psychiatrist. During eross-examination of three of Hospital's expert witnesses, Shannon used a report prepared by Dr. Dall, a physiatrist retained by Hospital but not called by either party for trial
{12 At trial, Shannon and Hospital each sought to introduce evidence of the other's actions taken in anticipation of litigation. Shannon argued that Hospital's efforts to protect itself from liability explained a gap in the medical records between the time that Nurse administered the epinephrine and the time her replacement began taking notes after Nurse's shift ended. Shannon claims that the harm she suffered during this period was not documented because Nurse was occupied with completing risk management forms. Hospital argued that Nurse's completion of the risk management paperwork was privileged. In contrast, Hospital claimed the evidence that Shannon contacted
{13 At the close of evidence, Shannon moved for a directed verdict on causation, arguing that at least some injury arising out of the incident had been proved. Shannon argued that the jury should be asked to render a verdict only on the issue of damages. The trial court initially responded, "I agree essentially there's going to be some damages in this case-some causation has been proven." However, the trial court then stated that "maybe there is a question about [causation]." Ultimately, the trial court implicitly denied the motion by submitting a special verdict form that required the jury to find causation before it could reach the question of damages.
I 14 The jury returned a verdiet in Hospital's favor, answering "No" to the special verdict form question, "Was St. Mark's Hospital's breach of the standard of care a cause of the plaintiffs injuries?"
ISSUES AND STANDARDS OF REVIEW
115 First, Shannon asserts that the trial court erred in several rulings admitting or excluding evidence. Shannon claims that the trial court erred by excluding Hospital's statements to her and others associated with her while she was hospitalized. Next, Shannon contends that the trial court erred by excluding references to the steps taken by Hospital to manage its legal risk while admitting references to Shannon's early contact with her attorney. Finally, Shannon challenges the trial court's admission of evidence related to pending criminal charges against her for unlawful possession of drug paraphernalia.
116 The trial court is afforded broad discretion to admit or exclude evidence, and we "will disturb its ruling only for abuse of discretion." Daines v. Vincent, 2008 UT 51, ¶21, 190 P.3d 1269; see also Diversified Holdings, LC v. Turner, 2002 UT 129, ¶6, 63 P.3d 686 (reviewing decision to admit or exclude evidence under rule 408 of the Utah Rules of Evidence for abuse of discretion); Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107, ¶95, 37 P.3d 1130 (reviewing admission of evidence as relevant under rules 401 and 402 for abuse of discretion). In reviewing for abuse of discretion, "we will not reverse a trial court's ruling on evidence unless the ruling was beyond the limits of reasonability." Daines, 2008 UT 51, ¶21, 190 P.3d 1269 (citation and internal quotation marks omitted). However, when the trial court's interpretation of an eviden-tiary rule is at issue, we apply a correctness standard of review, affording no deference to the trial court's decision. See Barrientos v. Jones, 2012 UT 33, ¶8, 282 P.3d 50; McKelvey v. Hamilton, 2009 UT App 126, ¶17, 211 P.3d 390 ("A district court's decision to admit or exclude evidence is generally reviewed for an abuse of discretion, unless it involves a legal question, which is reviewed for correctness."). Even when the trial court has erred in its evidentiary decision, "reversal is appropriate only in those cases where, after review of all the evidence presented at trial, it appears that absent the error, there is a reasonable likelihood that a different result would have been reached." Stevenett v. Wal-Mart Stores, Inc., 1999 UT App 80, ¶8, 977 P.2d 508 (citation and internal quotation marks omitted); see also Utah R. Civ. P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.").
%18 Third, Shannon contends that the trial court erred by denying her motion for a directed verdict and her motion for judgment notwithstanding the verdict, because the evidence was insufficient to support the jury's verdict that Hospital's admitted breach of the standard of care caused Shannon no harm.
When a party challenges a trial court's denial of a motion for directed verdict or judgment notwithstanding the verdict on the basis of insufficiency of the evidence, we follow one standard of review: We 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 (citation and internal quotation marks omitted).
ANALYSIS
I. Evidentiary Rulings
A. Statements by Hospital
1. Hospital's Statements Made Prior to Litigation
{19 Shannon challenges the trial court's exclusion of the statements made by Hospital's administrators and employees that she contends were "undisputed admissions of causation and damages." She argues that by excluding the statements, the trial court also unfairly allowed Hospital to contradict and deny those same admissions at trial. Hospital maintains that the statements were properly excluded as irrelevant because Hospital had stipulated that Nurse's improper administration of the epinephrine was a breach of the standard of care and because the statements did not admit that the improper delivery of epinephrine caused injury. Hospital also contends that the statements are expressions of apology and offers to pay medical expenses, which are inadmissible under rule 409 of the Utah Rules of Evidence and seetion 78B-8-422 of the Utah Code.
120 The trial court excluded the statements as irrelevant. See Utah R. Evid. 402 ("Irrelevant evidence is not admissible."). Evidence is relevant "if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Id. R. 401. To establish her claim of medical malpractice, Shannon was required to "prove four elements: (1) the standard of care required of health care providers under the cireumstances; (2) breach of that standard by [Hospital]; (8) injury proximately caused by the breach; and (4) damages." Morgan v. Intermountain Health Care, Inc., 2011 UT App 253, ¶8, 263 P.3d 405. Two of those elements-the standard of care and breach of that standard-were established through the stipulation of the parties. Accordingly, the issue before us is whether the statements are relevant to causation or damages, the two elements of Shannon's claim remaining for trial.
{21 The particular statements Shannon sought to introduce included Hospital's risk manager's assurance, "[DJon't worry about this, we will take care of all of it" and, "[Shannon] can come here" if she needed help. She also sought to introduce testimony from her fiancé (Fiancé) that Hospital's administrators and its CEO reassured him, "[Y¥lou don't have to worry about it. We'll take care of you. Things are going to be okay"; "You don't have anything to worry about on your end. We'll make sure it's taken care of"; and, "[Elverything is going to be okay. Things will be taken care of." In addition, Shannon's father (Father) would have testified that Hospital's CEO called him and said, "[TJhere's been an incident, accident" and, "I want you to know we've given
1 22 Shannon asserts that these statements are "highly relevant" to the issue of causation because they admit that "at least some pain and something adverse was caused by the epinephrine." In contrast, the trial court interpreted the statements simply as concessions that Nurse made a mistake by giving Shannon epinephrine intravenously, which had already been established through the parties' stipulation. Because none of the statements expressly admitted that specific injuries were caused by that negligence, the trial court determined that they did not make it more probable or less probable that Shannon's reactions and ongoing symptoms would not have happened but for the improperly administered epinephrine.
123 While we agree that Hospital's statements do not expressly indicate that Shannon's immediate reaction or any permanent injuries were caused by the intravenous delivery of epinephrine, we are not convinced that they are completely irrelevant to causation and damages. Dr. Paradise indicated that they had "messed up" and there had been "a complication," while Hospital administrators allegedly apologized and assured Shannon and her family that Hospital would take care of "it." These statements create at léast an inference that Hospital connected Shannon's adverse reaction to the fact that Nurse improperly administered the epinephrine. That inference is relevant to prove that her immediate pain and suffering was caused by Nurse's error and to rebut Hospital's argument at trial that Shannon's reaction might have been the same even if the epinephrine had been injected subcutaneously. Furthermore, the statements concerning Shannon's future medical needs and the availability of Hospital's emergency services have some relevance to the issue of whether Nurse's negligence resulted in permanent injuries to Shannon, which Hospital correctly notes was the focus of Shannon's damages claim at trial, Thus, we agree with Shannon that the statements have some relevance to the issues of causation and damages which were tried to the jury. See Utah R. Evid. 401 (providing that evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence"); State v. Jaeger, 1999 UT 1, ¶12, 973 P.2d 404 ("[Elvidence that has even the slightest probative value is relevant under the definition in rule 401." (citation and internal quotation marks omitted)).
124 Nevertheless, most of the statements were inadmissible under rule 409 (apology rule) and section 78B-8-422 (apology statute).
*1048 (a) Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
(b) Evidence of unsworn statements, affirmations, gestures, or conduct made to a patient or a person associated with the patient by a defendant that expresses the following is not admissible in a malpractice action against a health care provider or an employee of a health care provider to prove liability for an injury:
(b)(1) apology, sympathy, commiseration, condolence, compassion, or general sense of benevolence; or
(b)(2) a description of the sequence of events relating to the unanticipated outcome of medical care or the significance of events.
Utah R. Evid. 409.
(2) In any civil action ... relating to an unanticipated outcome of medical care, any unsworn statement, affirmation, gesture, or conduct made to the patient by the defendant shall be inadmissible as evidence of an admission against interest or of liability if it:
(a) expresses:
(1) apology, sympathy, commiseration, condolence, or compassion; or
(ii) a general sense of benevolence; or (b) describes:
() the sequence of events relating to the unanticipated outcome of medical care;
(ii) the significance of events; or
(iii) both.
Utah Code Ann. § 78B-8-422 (LexisNexis 2012).
125 Many of the statements Shannon identified are fairly interpreted as promises or offers to pay Shannon's medical expenses, including the risk manager's statements that "we will take care of all of it" and "[Shannon] can come here" if she needed help; Hospital administrators' assurances that "you don't have to worry about it"; and Hospital's CEO's statement to Father that "you don't need to be concerned about treatment or whatever it takes to get her well." Thus, these statements are inadmissible under subsection (a) of the apology rule. See Utah R. Evid. 409(a) To the extent that the statements are not covered by subsection (a), most of them are covered under subsection (b) as statements of "apology, sympathy, commiseration, condolence, compassion, or general sense of benevolence." See id. R. 409(M)(1);, see also Utah Code Ann. § 78B-38-422(2)(a). Indeed, Fiancé characterized Hospital's statements as attempts at "reassuring" him, and the statements express benevolence and compassion by assuring Shannon and the persons associated with her that Hospital would take care of her. Cf. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 989 N.E.2d 35, 37, 40 (2013) (holding that trial court did not exceed its discretion in determining that doctor's statement that "I take full responsibility for this. Everything will be okay" to a distressed patient was designed to comfort the patient and therefore was inadmissible under Ohio's version of the apology statute). Likewise, Dr. Paradise's statement that he was sorry for what had occurred falls squarely within the exclusion of statements, affirmations, or gestures of apology
126 However, the statements that there had been an accident or complication and that "[wle messed up" do not fall within the categories discussed above. Shannon claims that these statements amount to statements of fault and that Utah's apology rule and apology statute do not exclude statements of fault. For that position, she relies on the legislative history of the apology statute and cases from other jurisdictions.
127 Utah is among the majority of states that have adopted laws prohibiting the introduction of statements of sympathy and apology made by health care providers after an unanticipated outcome of medical care. See Davis v. Wooster Orthopaedics & Sports Med., Inc., 193 Ohio App.3d 581, 952 N.E.2d 1216, 1219 (2011) (collecting statutes and rules). Some states explicitly distinguish between statements of sympathy and statements of fault, with some providing that only statements of sympathy are inadmissible and with others excluding both statements of fault and statements of sympathy. See, eg., Cal. Evid.Code § 1160(a) (West 2009) (expressly providing that a "statement of fault," even if part of an expression of sympathy, "shall not be inadmissible pursuant to [California's apology statute]"); Colo.Rev.Stat. § 13-25-185(i) (LexisNexis 2013) (expressly providing that statements "expressing apology, fault, [or] sympathy ... shall be inadmissible" as evidence of an admission of liability or as evidence of an admission against interest); see also Davis, 952 N.E.Z2d at 1219-20 (collecting statutes and rules). Unlike most of those laws, neither the Utah apology statute nor the Utah apology rule expressly addresses whether statements of fault are inadmissible. Accordingly, our task is to determine whether the Utah Legislature intended to extend the protection of the apology statute to statements of fault.
128 Utah's apology statute excludes "un-sworn statement[s], affirmation{s], gesture[s], or conduct" that fall within certain categories of expressions or descriptions. Utah Code Ann. § 78B-3-422(2). Subsection (2)(a) makes such expressions inadmissible if they express "apology, sympathy, commiseration, condolence, or compassion" or "a general sense of benevolence." Id. § T8B-8-422(2)(a). While the listed expressions do not explicitly include statements of fault, an admission of error is included in some definitions of apology. See Merriam-Webster, http://www.merriam-webster.com/dictionary/ apology (last visited Feb. 18, 2014) (defining apology as "1 a: a formal justification: Defense b: Excuse; 2: an admission of error or discourtesy accompanied by an expression of regret"). See generally State v. Canton, 2013 UT 44, ¶13, 308 P.3d 517 ("In determining the ordinary meaning of nontechnical terms of a statute, our 'starting point' is the dictionary." (citation omitted)). However, an apology need not include an admission of fault. See Davis, 952 N.E.2d at 1221 (holding that language in the Ohio apology statute making expressions of apology inadmissible did not preclude the admission of statements of fault). Therefore, we are convinced that "[this is one of those cases where the dictionary fails to dictate the meaning that the statutory term{[ ] 'must bear' in this context." See Canton, 2013 UT 44, ¶14, 308 P.3d 517.
129 Further, we are unable to ascertain from the structure or context of the apology
130 Because either an interpretation of the statute excluding statements of fault or an interpretation admitting them would be reasonable, the Utah apology statute is ambiguous on this point. See State v. Watkins, 2013 UT 28, ¶22, 309 P.3d 209 ("A statute is ambiguous only 'if it is reasonably susceptible of different interpretations.'" (quoting Grant v. Utah State Land Bd., 26 Utah 2d 100, 485 P.2d 1035, 1037 (1971))). If a statute is ambiguous, "we generally resort to other modes of statutory construction and seek guidance from legislative history." Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶15, 267 P.3d 863 (citation and internal quotation marks omitted). The original draft of the bill made inadmissible "any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence." S.B. 41, § 2, 56th Leg., 2006 Gen. Sess. (Utah 2006) (original draft) (emphasis added), available at http://le.utah.gov/2006/bills/sbillint/sb0041. htm. After the judiciary interim committee review of the bill, the sponsor deleted the word "fault" from the list of excluded statements. See S.B. 41 Substitute, § 2, 56th Leg., 2006 Gen. Sess. (Utah 2006) (amended), available at http://le.utah.gov/2006/bills/ sbillamd/sb0041s01.htm; Recording of Utah Senate Floor Debates, S.B. 41 Substitute, 56th Leg., 2006 Gen. Sess. (Jan. 25, 2006) (statement of Sen. David L. Thomas). This history suggests that at least some legislators considered and rejected the idea of making statements of fault inadmissible.
31 The record of the legislative debates of the bill lend some support to this conclusion. The information available from legislative debates often provides the thoughts or interpretations of only a single legislator, and, therefore, it may not significantly contribute to our understanding of what the members of both chambers of the Utah Legislature intended when they approved the final version of the bill. However, in some instances the information gleaned from the legislative history is of interest when we are unable to discern the legislative intent from more traditional methods of statutory construction. Recognizing the deficiencies in legislative history of this nature, we note that there was some discussion of the effect of the statute on the admissibility of admissions of fault before the statute's passage. During the Senate debate, the sponsor of the bill explained that the apology statute was designed to promote full disclosure by the medical industry in the hope of reducing the number of lawsuits and settlement costs. See Recording of Utah Senate Floor Debates, S.B. 41 Substitute, 56th Leg., 2006 Gen. Sess. (Jan. 25, 2006) (statement of Sen. David L. Thomas). In addition, the sponsor explained that if doctors "admit fault, you can actually use that" and stated, "I took that out of the bill." Id.
T32 When the bill was advanced to the House of Representatives, the House sponsor made similar remarks. When asked whether admissions of fault would be admissible "if in this conversation [apologizing or expressing sympathy] he [the doctor] does admit fault," the sponsor responded, "I believe that that
133 Based on the purpose of the statute, the removal of the word "fault" from the bill before passage, and the ambiguous meaning of the term "apology" in this context, we conclude that the Utah Legislature did not intend to exclude statements of fault under section 78B-38-422. The trial court therefore erred in excluding the statements of fault. Cf. Davis v. Wooster Orthopaedics & Sports Med., Inc., 193 Ohio App.3d 581, 952 N.E.2d 1216, 1218, 1220-21 (2011) (holding that the Ohio apology statute's prohibition against the admission of statements expressing "apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence" does not include a prohibition on statements of fault).
134 However, even though the trial court erred in excluding Hospital's statements of fault, Shannon must establish that she was prejudiced by the improper ruling. See Stevenett v. Wal-Mart Stores, Inc., 1999 UT App 80, ¶8, 977 P.2d 508 ("[TJhe person asserting error has the burden to show not only that the error occurred but also that it was substantial and prejudicial."). To address the impact of the exelusion of the statements of fault in this case, we first pause to discuss the dual concepts of fault in the context of a negligence action. A statement accepting fault may, as Hospital claims in this case, be am admission that the health care provider breached the standard of care without also admitting that the breach caused any injury to the patient. In contrast, a health care provider may concede both that it breached that standard of care and that the breach caused the patient's injuries. Under the statute as we have interpreted it, both types of statements of fault are admissible.
In the present case, Shannon identified no statements expressly admitting that the intravenous administration of epinephrine caused Shannon injury. Instead, the statements all relate to the breach of the standard of care. While we have indicated that the statements considered together could raise an inference supportive of a finding of causation for Shannon's alleged short-term injuries, see supra 128, we have also concluded that the majority of these statements are inadmissible offers of payment or expressions of apology. Standing alone, the only statements that acknowledge Hospital's fault are the statement by the CEO that "there's been an incident, accident" and the statement attributed to Dr. Paradise, "There was kind of a complication. We messed up." Taken in context, these statements admit only a breach of the standard of care and thus are simply cumulative of the stipulation that Nurse's intravenous administration of the epinephrine breached the standard of care. Thus, Shannon can show no prejudice from the trial court's decision to exclude these statements.
2. Hospital's Statements Made During Litigation
136 Shannon next argues that Hospital conceded that it caused her some harm at a pretrial hearing and then changed its position at trial,. Hospital responds that it "never admitted that its mistake in misrout-ing the epinephrine caused 'some' or any injury" and that "at most, [Hospital] agreed that Shannon experienced a reaction after she received the epinephrine." During oral argument on the motions relating to the statements, the trial court asked Hospital's counsel, "Correct me if I'm wrong. You're
No, Your Honor.... [Shannon] got the epinephrine and she got a reaction and she went into the ICU for two days. The big fight in this case is over the fact that when she was discharged from the ICU, her cardiac function was normal, her neurolog-ie function was normal, and everything else that [Shannon is] claiming is brain damage and such has nothing to do with that incident. That's what the fight in this case is.
The trial court responded, "[TJhat's my point. These statements all beg the very question that this case is about, which is, what precise harm was caused by this incident?"
137 Contrary to Shannon's assertion, counsel's statement at the pretrial hearing was not inconsistent with Hospital's defense that Nurse's error did not cause Shannon any harm. The trial court's question was whether Hospital claimed that Shannon suffered no harm as a result of the epinephrine itself-and not as a result of its erroneous method of delivery. In response, Hospital acknowledged that Shannon had a reaction to the epinephrine, but it did not concede that the intravenous administration of the drug was the cause. While Hospital's pretrial position is somewhat unclear and may have been refined at trial, there is nothing in its statement to the trial court that foreclosed the argument that Shannon's severe reaction to the epinephrine might have occurred even if Nurse had administered the drug subcutaneously. That question was not resolved during discovery or pretrial proceedings because, as Hospital correctly indicated, the focus of the litigation was on whether misr-outing the epinephrine-rather than the epinephrine itself-caused the significant permanent injuries that Shannon alleges. In addition, the parties' stipulation, entered over a year before trial, expressly states that it
does not constitute, and is neither intended, nor should it be construed as, an admission that this breach of the standard of care was the direct, proximate, or contributing cause of any damages allegedly sustained by [Shannon], which such causation and damages are denied by [Hospital], both generally and specifically, to exist.
Under these cireumstances, we cannot conclude that Hospital changed its position at trial.
138 In summary, even though the trial court erred by excluding Hospital's statements of fault, Shannon has not established that she was prejudiced. Furthermore, we are not persuaded that Hospital conceded the issue of causation before trial or changed its position at trial.
B. Actions Taken in Anticipation of Litigation
T39 Shannon next argues that the trial court exceeded its discretion in its rulings on the admissibility of each party's actions taken in anticipation of litigation. She contends that the trial court's rulings are inconsistent because, on the one hand, it admitted references to Shannon's early contact with her attorney as relevant to causation and damages but, on the other hand, it excluded references to Hospital's early risk management efforts as irrelevant. We consider these issues as separate evidentiary rulings and review each for an abuse of discretion. See Daines v. Vincent, 2008 UT 51, ¶21, 190 P.3d 1269 (stating that decisions to admit or exclude evidence will be disturbed only for an abuse of discretion).
1. Admission of Shannon's Actions
40 On appeal, Shannon advances two arguments as to why evidence of Shannon's early consultation with an attorney should have been excluded. First, she asserts that the evidence was inadmissible under Utah Rule of Evidence 608 because Hospital used it to attack her character for truthfulness and to paint her medical complaints as exaggerated and untrustworthy. Hospital responds that the evidence was not introduced as evidence of Shannon's character for truthfulness.
141 Rule 608 of the Utah Rules of Evidence provides that "extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witmess's character for truthful
[ 42 Second, Shannon argues that the timing of her consultation with legal counsel was irrelevant to the issues of causation and damages. As discussed, evidence is relevant if it has any tendency to make a fact of consequence more probable or less probable. Utah R. Evid. 401. Shannon argues that the timing of the conversations with her attorney does not make it more probable or less probable that the intravenous administration of epinephrine caused her injury. In response, Hospital notes that Dr. Eisendrath relied on Shannon's early consultation with counsel in reaching his conclusion that Shannon suffered from somatization disorder-a type of somatoform disorder-rather than any physical condition."
T48 The parties have pointed us to two decisions from Utah's appellate courts that address whether evidence of a plaintiff's first contact with an attorney is admissible in an action arising from personal injuries In Pennington v. Allstate Insurance Co., 973 P.2d 932 (Utah 1998), the Utah Supreme Court considered the actions taken by the plaintiff after he retained his father-in-law as counsel to be relevant in upholding the trial court's imposition of sanctions against them for, among other things, inflating the plaintiff's damages claim. See id. at 984-89. Subsequently, in Ottens v. McNeil, 2010 UT App 237, 239 P.3d 308, this court distinguished Pennington and, in providing guidance to the trial court on remand, stated that because there was no claim that the plaintiff in Oftens had unethically inflated her damages, the evidence of when she first consulted counsel was irrelevant. See id. 171-72. These decisions stand for the unremarkable proposition that the relevance of evidence is dependent upon its probative value in establishing or refuting a matter at issue in a particular case. See Utah R. Evid. 401 (defining relevant evidence). Accordingly, neither is controlling here.
T44 "Because Utah case law is not fully developed on this issue, we look to the case law from other jurisdictions for guidance." State v. Montiel, 2005 UT 48, ¶15, 122 P.3d 571 (citation and internal quotation marks omitted). Courts that have considered this
45 Unlike the evidence at issue in these decisions, the evidence of when Shannon first consulted counsel was identified by a testifying expert as part of the basis of the expert's opinion. Under similar cireumstances, jurisdictions have reached conflicting conclusions on the admissibility of such evidence. In Yingling v. Hartwig, 925 S.W.2d 952 (Mo.Ct.App.1996), the trial court allowed the defense to introduce expert testimony from a doctor who opined that patients who are involved in litigation have subjective complaints that last longer than patients who do not sue. Id. at 954-55. On appeal, the Missouri Court of Appeals held that the trial court exceeded its discretion by admitting the testimony because the "(statements about unidentified people with unidentified injuries and complaints are irrelevant to prove whether [the plaintiff] continues to suffer from her injuries." Id. at 956. The appellate court further reasoned that even if the testimony were somehow logically relevant, any probative value was far outweighed by its prejudicial effect to the plaintiff because the testimony "essentially constituted the doctor's personal opinion as to whether the jury should believe [this] plaintiff ... when she testifies about her injuries and complaints." Id.
146 The federal district court in Kansas took a contrary approach in Watson v. Taylor, 477 F.Supp.2d 1129 (D.Kan.2007), holding that the plaintiff was not entitled to a new trial based on the admission of expert testimony about the secondary gain theory and the admission of evidence that she hired an attorney to file a worker's compensation claim. See id. at 1182, 1185-37. Specifically, the expert explained that under the secondary gain theory some patients, including the plaintiff, "may not be very motivated to get well because of how it might adversely impact pending worker's compensation and related civil litigation." Id. at 1182, 1136-37. The Watson court acknowledged that "as a general proposition, access to the legal system is a fundamental right that should not be discouraged." Id. at 1135. Nevertheless, it concluded that the timing of when the plaintiff hired her attorney and filed her worker's compensation claim was pertinent to the issue of whether a subsequent surgery caused her injuries and to the defense's secondary gain theory. Id.; see also Beller v. Saari, No. 92-2234-L, 1994 WL 608598, at *2 (D.Kan. Oct. 27, 1994) (finding no unfair prejudice stemming from evidence of personal injury plaintiff's contact with an attorney because that fact was consistent with the defense's theory of secondary gain as an explanation of plaintiff's complaints). The Watson court specifically rejected the holdings of
147 In this case, Dr. Eisendrath testified that his psychological evaluation takes into account when an individual first contacts an attorney because that fact "influence[s] that individual's trajectory." According to Dr. Eisendrath, "[i]f they're aiming to maximize their litigation, it's different from maximizing their recovery." Dr. Eisendrath explained that onee litigation is filed, there may be "competing motivations," with the goal of physical recovery conflicting with the goal of litigation success. He further testified that Shannon's early consultation with an attorney was one factor he found consistent with his diagnosis that she suffers from somatization disorder. In light of Dr. Eisen-drath's expertise and his testimony about his consideration of this fact in his diagnosis, we cannot conclude that the trial court's decision that this evidence is relevant was "beyond the limits of reasonability," see Daines v. Vincent, 2008 UT 51, ¶21, 190 P.3d 1269 {citation and internal quotation marks omitted). See also Utah R. Evid. 401 (providing that relevant evidence need only make a consequential fact more probable or less probable).
2. Exclusion of Evidence of Hospital's Actions
$48 Next, Shannon contends that the trial court exceeded its discretion by "exclud[ing] all references to [Hospital's] own immediate legal preparations and immediate general acts of risk management activity." Shannon argues that this evidence was relevant and necessary to explain the absence of critical information in her medical records that would have described her symptoms and provided proof that the intravenous delivery of epinephrine caused her injuries. According to Shannon, the "risk management module"
150 Furthermore, any presumed error in excluding references to the fact that Hospital quickly initiated its risk management procedures was harmless. Contrary to Shannon's claims, Nurse testified that her shift ended as scheduled shortly after she incorrectly administered the epinephrine and that another nurse began caring for Shannon.
151 There is nothing about Hospital's compliance with its risk management procedures that suggests Hospital's error caused Shannon's alleged permanent injuries or refutes Hospital's theory that her immediate reaction might have occurred even if the epinephrine had been administered as directed. There was extensive evidence that Shannon's test results were normal when she was discharged, that she suffered from most of her complaints long before the intravenous administration of epinephrine, and that one of her own witnesses could not exclude the possibility that her immediate adverse reaction may bave occurred even if Nurse had administered the epinephrine subcutaneously. It is also significant that Shannon did not testify at trial and the jury therefore did not hear Shannon's own description of her symptoms. Under these cireumstances, even if the jury had been informed about Nurse's completion of risk management paperwork, we are not convinced that there is a reasonable likelihood that the outcome would have been more favorable to Shannon.
152 Next, Shannon argues that the trial court abused its discretion by admitting evidence of her pending misdemeanor charge for possession of drug paraphernalia In doing so, Shannon overstates the evidence that was admitted at trial. In fact, the trial court significantly limited the evidence that could be presented. Shannon and Hospital then stipulated that the jury could be informed only that "on July 4, 2011 [Shannon] was in possession of a plastic [pen] straw with opiate residue." Shannon contends that the trial court erred by admitting even this fact. Hospital argues that we should not reach the merits of this issue because Shannon either waived her argument or invited any error when she introduced evidence of prior drug use through her own expert witness and stipulated to the language informing the jury about her drug paraphernalia possession charge.
1538 We are not persuaded that Shannon has waived this issue or invited error. Shannon adjusted her opening statement and witness questioning and agreed to the stipulation after the trial court had refused to exclude all of the evidence related to Shannon's arrest. In an effort to control the impact of the evidence that would be admitted, Shannon introduced her drug use in her opening statement, elicited testimony from her experts that such drug use, if true, would be an indication of poor decision-making as a result of her brain injury, and consented to the language of the stipulation. However, Shannon's counsel clarified, "[Wle still re-servel ] all our earlier objections and I'm not waiving any of that for appeal purposes...." Shannon's attempt to mitigate any harm from the trial court's adverse ruling by introducing the evidence, asking her witnesses about it, and stipulating to the precise language the jury would hear did not amount to a waiver or an invited error. Cf. Wilson v. IHC Hosps., Inc., 2012 UT 43, ¶¶67, 76, 289 P.3d 369 (concluding that the appellants' "strategic decision to attempt to mitigate the damage arising from improperly admitted evidence does not reflect an intent to waive their right to appeal the admission of that evidence" and that the appellants "did not invite error because their agreement to enter [the challenged] evidence was made after and was, in fact, in response to improper ... evidence introduced by [the appellee]"); see also Kobashigawa v. Silva, 129 Hawaii 313, 300 P.3d 579, 599 (2013) ("[OInce a trial court makes an unequivocal ruling admitting evidence over a party's motion in limine to exclude, that party's subsequent introduction of the evidence does not constitute a waiver of its objection for appellate review."). Shannon did not concede that the evidence was admissible; she merely agreed to the way in which it would be presented to the jury and attempted to mitigate any harm from the adverse ruling. Accordingly, Shannon's challenge to the trial court's denial of her motion to exclude the pen straw evidence is properly before us.
1. Admissibility Under Rules 402 and 403
954 Shannon attacks the trial court's admission of the pen straw evidence on relevancy grounds.
1 55 One of Hospital's experts, Dr. Eisen-drath, testified that Shannon's substance abuse may have motivated her to complain about pain to various physicians in order to
156 However, relevant evidence must also be admissible under rule 408. Under that rule, relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Id. R. 403.
157 Shannon argues that the pen straw evidence was "used solely to prejudice the jury against Shannon and confuse the issues before it." However, the trial court effectively mitigated the risk of unfair prejudice. First, the trial court allowed Hospital to present only the fact that Shannon was found in possession of paraphernalia with drug residue. This limited the admissible evidence to the fact most relevant to Hospital's causation theory-Shannon's recent drug abuse. The trial court excluded evidence not relevant to that theory, including Shannon's DUI charge,
In summary, the evidence of Shannon's possession of drug paraphernalia was relevant to refuting Shannon's claim that the intravenous administration of epinephrine caused her reported symptoms. Furthermore, the trial court narrowly tailored the extent of the evidence that could be admitted, thereby minimizing the tendency of the evidence to lead to unfair prejudice. Thus, the trial court did not exceed its discretion in admitting this evidence.
2. Admissibility Under Rule 703
159 As an additional ground for excluding this evidence, Shannon contends that it is "not the type of evidence that can be relied upon by any medical expert in reaching a diagnosis or opinion." Rule 708 provides,
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion sub*1059 stantially outweighs their prejudicial effect.
Utah R. Evid. 703. Therefore, the relevant inquiry in this case is "whether there was evidence supporting the trial court's ruling that [this type of information is] of the sort experts in [Dr. Eisendrath's] field reasonably and regularly rely upon." See State v. Kelley, 2000 UT 41, ¶20, 1 P.3d 546 (emphasis added); ef Green v. Louder, 2001 UT 62, ¶¶28-29, 29 P.3d 638 ("The proper inquiry is whether accident reconstructionists reasonably and regularly rely on computer software programs ... to verify the accuracy of their findings.... [OJnce an expert renders an opinion, [he] must be allowed to explain the foundation for that opinion." (second alteration in original) (citation and internal quotation marks omitted)).
T 60 The trial court ruled that Shannon's possession of drug paraphernalia was "fair for the defense to go into," provided that a proper foundation would be laid at trial to establish that "this is evidence of a type that is typically relied upon by experts in the field." Thereafter, Dr. Eisendrath testified that all the categories of evidence he reviewed, including police reports and court document reports, are records that he typically relies on in forming his professional medical opinions. Dr. Eisendrath also stated,
Those things are very useful in terms of when we try to come to a comprehensive assessment of somebody, the more data you can get the better so that [you are] getting data from as many sources as possible, including collateral sources, beyond what the individual patient tells you. What they tell you is very important but sometimes getting information from other sources is also critically important.
Dr. Eisendrath then testified that when he examined Shannon in August 2010 his opinion was that Shannon's substance abuse problem was in remission, but that he had no way to corroborate Shannon's self-report that she no longer abused controlled substances. Hospital asked whether Dr. Eisen-drath had seen any new evidence that changed his opinion. Dr. Eisendrath responded that Shannon's July 4, 2011 possession of a plastic pen straw with opiate residue indicated that "the substance abuse is certainly, as of July, a pretty active problem." By testifying that this information is useful "when [trying] to come to a comprehensive assessment of somebody," Dr. Eisen-drath set forth an adequate foundation to establish that "experts in [his] particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject." See Utah R. Evid. 7083. Accordingly, we reject Shannon's argument that Dr. Eisendrath could not properly rely on this evidence in forming his opinion.
II. The Seope of Cross-Examination
1 61 Next, Shannon contends that the trial court erred by limiting the scope of her cross-examination of Hospital's psychiatric expert, Dr. Eisendrath. She argues that this error prevented her from demonstrating that "Dr. Eisendrath ignored Dr. Dall's diagnosis that Shannon suffered from specific generally known physical medical conditions" and that therefore "there could be no diagnosis of any type of psychological somatization disorder." Hospital argues that Shannon was permitted to cross-examine Dr. Eisendrath
162 "An assertion or opinion given on direct testimony that bears on a key issue in the case is a proper subject of cross-examination," and parties are permitted to conduct cross-examination into the bases of opinions offered by their opponents' expert witnesses. Whitehead v. American Motors Sales Corp., 801 P.2d 920, 925 (Utah 1990). The opponent of the expert testimony may challenge the suitability or reliability of the materials relied upon by the expert, even if those materials are not in evidence. State v. Clayton, 646 P2d 728, 726 (Utah 1982). However, the trial court is granted considerable discretion in exercising control over the examination of both lay and expert witnesses. See Perkins v. Fit-Well Artificial Limb Co., 30 Utah 2d 151, 514 P.2d 811, 813 (1973); accord Paulos v. Covenant Transp., Inc., 2004 UT App 35, ¶20, 86 P.3d 752; see also Utah R. Evid. 611(a) (indicating that the trial court "should exercise reasonable control over the mode and order of examining witnesses" so as to "make those procedures effective for determining the truth," "avoid wasting time," and "protect witnesses from harassment or undue embarrassment").
163 In the present case, Shannon cross-examined Dr. Weight, Hospital's neu-ropsychologist, and Dr. Lawton, Hospital's neurologist, by reading or referring to portions of Dr. Dall's report and then asking the expert to explain his contrary conclusions. In particular, Shannon established through her cross-examination of Dr. Weight and Dr. Lawton that Dr. Dall had diagnosed Shannon with known medical conditions. Shannon asked Dr. Lawton to explain his contrary conclusion and asked Dr. Weight to explain why Dr. Dall's diagnosis does not eliminate somatoform disorder as a viable diagnosis. Hospital objected on the ground that Shannon was reading Dr. Dall's report to the jury even though it had not been admitted into evidence. The trial court initially overruled the objection, explaining, "They're all covered in the general caution that ... just because a fact is stated in [counsel's] question, that's not evidence." When Shannon continued her practice of reading portions of Dr. Dall's report during her cross-examination of Dr. Eisendrath, Hospital again objected. The trial court overruled the objection, indicating that although Dr. Dall's report was not in evidence, the witness's responses to the attorney's questions were. But when Shannon continued reading Dr. Dall's report to Dr. Eisendrath, the trial court interrupt ed, stating, "Wait a minute. That's been asked and answered.... [Y¥Jou've already established that he has the report. Don't just read the report to get the report in front of the jury." Shannon resumed her cross-examination of Dr. Eisendrath, and when she later read from Dr. Dall's report again, the trial court issued yet another warning, "You can bring information to the witness' attention to get his opinions on it, but it has to be a legitimate question ..., not simply reading things to the jury that aren't in evidence. Don't do it again, or you're done." Shannon then asked about Dr. Dall's conclusions in the form of a hypothetical question, but Hospital eventually objected to that form of questioning as well. The trial court then sustained the objection, and Shannon moved on.
164 The trial court did not unduly limit Shannon's cross-examination of Dr. Eisen-drath. Shannon was permitted to question Dr. Eisendrath about the fact that he had reviewed Dr. Dall's report when forming his own opinion and that Dr. Eisendrath's opinion was contrary to Dr. Dall's conclusions. In particular, Shannon's cross-examination focused Dr. Eisendrath on the fact that Dr. Dall had diagnosed Shannon with "known medical conditions," including myofascial pain syndrome and fibromyalgia. She then required Dr. Eisendrath to explain his diagnosis of somatization disorder in light of Dr. Dail's contrary diagnosis of physical conditions that would exclude somatization disorder as a possible diagnosis. Thus, despite the trial court's concern with the form of her questions, Shannon was allowed to probe Dr.
T65 Nevertheless, Shannon cites rule 708 of the Utah Rules of Evidence in support of her argument that the trial court improperly admonished her for reading Dr. Dall's report to the jury. While it provides that an expert may base his opinion on inadmissible evidence of the kind reasonably relied on by experts in the particular field, see Utah R. Evid. 703, "[rlule 703 cannot be used to introduce evidence through an expert for purposes other than the expert's conclusions and thus cireumyvent other rules of evidence," Patey v. Lainhart, 1999 UT 31, ¶33, 977 P.2d 1193. The trial court did not exceed its discretion in cautioning Shannon not to use her cross-examination of Hospital's experts as a way to cireumyvent the lack of foundation for Dr. Dall's report caused by the failure of either party to require his presence at trial Cf. Clayton v. Ford Motor Co., 2009 UT App 154, ¶24, 214 P.3d 865 (excluding a non-testifying expert's report for lack of foundation despite fact that another defense expert testified that he was aware of the report and rejected it in forming his own opinion).
T 66 Another deficiency in Shannon's challenge to the trial court's caution against reading Dr. Dall's report into the record is that she cannot establish that she was prejudiced by it. Shannon admits that she "extensively" and "fully" eross-examined two other defense experts regarding Dr. Dall's report. Indeed, Shannon questioned Dr. Lawton about Dr. Dall's report and the records or reports of seven other doctors who treated or examined Shannon after the incident and who, like Dr. Dall, had reached different conclusions from those reached by Dr. Lawton. Specifically, she asked Dr. Lawton, "[Dlid you know [Dr. Dall] indicated that he thought [Shannon's] present injury with regards to her neck and such was consistent with the tetanic contraction as described?" After Dr. Lawton explained his disagreement with that aspect of Dr. Dall's report, Shannon asked whether Dr. Lawton also disagreed with Dr. Dall's medical diagnosis of fibromyalgia. Dr. Lawton responded, "I agree that [Shannon has] complained of a lot of pain{,] which is what [Dr. Dall is] talking about." Shannon also used Dr. Dall's report in cross-examining Dr. Weight. During that line of questioning, Shannon attempted to undermine Dr. Weight's diagnosis of somatoform disorder by eliciting testimony from Dr. Weight that a person can have somatoform disorder only if her symptoms cannot be "fully explained" by a known general medical condition. Dr. Weight then acknowledged that Dr. Dall's diagnosis of myofascial pain syndrome would qualify as a known general medical condition but criticized Dr. Dall's diagnosis as "one that is purely a report by the patient." Shannon also questioned Dr. Weight about Dr. Dall's diagnosis that Shannon suffers from fibro-myalgia, but Dr. Weight testified that fibro-myalgia "is not an established diagnosis" and therefore Shannon's symptoms were "not fully explained." Thus, prior to Dr. Eisen-drath's testimony, Shannon had described Dr. Dall's report during her questioning of two other defense experts, and the jury had heard enough to understand that Hospital's experts held opinions contrary to those of some other doctors, including a doctor hired by Hospital. Shannon reiterated Dr. Dall's conclusions during her cross-examination of Dr. Eisendrath despite the trial court's admonitions and elicited his admission that his opinion was contrary to that of Dr. Dall. Under these cireumstances, the trial court's caution that she not use her cross-examination of Dr. Eisendrath to get the contents of Dr. Dall's report in front of the jury was not harmful to Shannon.
T 67 Our confidence in the jury's verdict is further supported by Shannon's introduction of other evidence corroborating Dr. Dall's conclusion that Shannon had a recognized medical condition. Shannon's expert, Dr. Anden, testified
168 In summary, the trial court acted within its discretion by cautioning Shannon on the use of Dr. Dall's report in her cross-examination of Dr. Eisendrath,. See Perkins v. Fit-Well Artificial Limb Co., 30 Utah 2d 151, 514 P.2d 811, 813 (1973) ("The trial judge is allowed a wide discretion in his control over the examination of witnesses-lay and expert alike. Unless he abuses that discretion and prevents the witness from answering a proper question on a material matter, he should not be reversed."); see also Utah R. Evid. 611 ("The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence. ..."). Even if the trial court had exceeded its discretion in that regard, Shannon cannot establish that she was prejudiced. The jury was aware of the pertinent contents of Dr. Dall's report and that he and other physicians had diagnosed Shannon with recognized medical conditions rather than the psychological condition of somatoform disorder advanced by Hospital's experts.
III. Sufficiency of the Evidence
169 Finally, Shannon argues that the trial court erred by denying both her motion for directed verdict and her motion for judgment notwithstanding the verdict on the issue of causation, because the evidence was insufficient to support a conclusion that Hospital caused her no injury. According to Shannon, the evidence showed that "at a minimum, Hospital caused some harm to Shannon that was foreseeable." Hospital argues that there was abundant evidence to support the jury's conclusion that Shannon's immediate reaction to the epinephrine would have been the same whether it was administered intravenously or subcutaneously, that Shannon did not suffer any permanent injuries from the erroneous administration of epinephrine, and that Shannon "did not seek to recover for her initial reaction after the epinephrine administration."
170 Because "(ilt is the exclusive function of the jury to weigh the evidence and to determine the credibility of the witnesses, ... we will not overturn a verdiet on a challenge to the sufficiency of the evidence [slo long as some evidence and reasonable inferences support the jury's findings." Brewer v. Denver & Rio Grande W. R.R., 2001 UT 77, ¶36, 31 P.3d 557 (alterations in original) (citations and internal quotation marks omitted). Furthermore, "[the existence of contradictory evidence or of conflicting inferences does not warrant disturbing the jury's verdiet when the sufficiency of the evidence is challenged on appeal." Id. (alteration in original) (citation and internal quotation marks omitted). Here, there is sufficient evidence to support the jury's verdict.
T71 Contrary to Hospital's contention, Shannon did seek to recover for her immediate reaction. She submitted an exhibit listing more than $80,000 in past medical expenses, including expenses incurred at the hospital on January 22, 2007, and the ensuing days, weeks, and months. Shannon reiterated this figure to the jury in closing arguments. However, we agree with Hospital that the evidence is sufficient to support the jury's finding of no causation. Several physi-clans testified that Shannon's immediate reaction could have resulted from the same dose of epinephrine delivered subcutaneously and that Nurse's error in administering the epinephrine intravenously may not have caused Shannon any injury. Specifically, Dr. Paradise, who testified as a treating physician, indicated that he was unable to determine whether the immediate symptoms Shannon experienced were complications resulting from the underlying allergic reaction that brought her into the emergency room, the epinephrine, or some combination of both. He also testified that complications can occur from epinephrine whether it is administered intravenously or subcutaneously. Likewise, Dr. Hartman, a defense expert, testified that Shannon's symptoms after she received the epinephrine could have occurred from the original allergic reaction, from epinephrine delivered either intravenously or subcutaneously, or from some combination. Although Dr. Krusz, a neurologist serving as Shannon's expert witness, testified that he believed Shannon had received an epinephrine dose three times larger than normal, resulting in anoxic brain injury, he
172 Moreover, Hospital provided multiple experts who testified that Shannon does not suffer from any permanent injuries caused by the intravenous administration of epinephrine. And there was extensive evidence presented that the results of myriad medical tests administered by different physicians were negative for any medical condition. Finally, Hospital presented expert testimony that Shannon suffers from somatoform disorder, a condition in which psychological issues are manifested as physical complaints that have no physiological explanation. In light of the conflicting evidence from which the jury could draw either conclusion as to causation, the trial court properly denied Shannon's motions for directed verdict and judgment notwithstanding the verdict.
CONCLUSION
T 73 Hospital's statements of apology, compassion, and offers to pay are inadmissible under rule 409 of the Utah Rules of Evidence and Utah Code section 78B-3-422, and Hospital's statements of fault are merely cumulative of the parties' stipulation that Hospital's intravenous administration of epinephrine was a breach of the standard of care. Evidence of when Shannon hired legal counsel was not inadmissible under rules 401 or 608, and the exclusion of Hospital's risk management procedures was neither an abuse of discretion nor harmful. Under the unique facts of this case, the narrowly tailored evidence on Shannon's possession of drug paraphernalia was admissible. The trial court also did not exceed its discretion in controlling Shannon's eross-examination of Dr. Ei-sendrath. Finally, the trial court was correct in denying Shannon's motion for directed verdiet and motion for judgment notwithstanding the verdiet because there was sufficient evidence to support the verdict that Hospital's breach did not cause Shannon any injury.
1 74 Affirmed.
. Appellant's last name changed from Shannon to Lawrence after the incident that gave rise to this suit but before the suit was filed. Because counsel and witnesses referred to her at trial by the name of Shannon, we do the same.
. "On appeal from a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to that verdict." Water & Energy Sys. Tech., Inc. v. Keil, 2002 UT 32, ¶2, 48 P.3d 888 (citation and internal quotation marks omitted). ''We present conflicting evidence only to the extent necessary to understand the issues raised on appeal." Ortiz v. Geneva Rock Prods., Inc., 939 P.2d 1213, 1215 (Utah Ct.App.1997) (citation and internal quotation marks omitted).
. A portion of Friend's videotaped deposition was played for the jury in lieu of live testimony.
. At trial, one of Shannon's expert witnesses described this event as a tetanic contraction. A tetanic contraction is a "sustained muscular contraction without intervals of relaxation." See Tetanic Contraction, The Free Dictionary, http:// medical-dictionary.thefreedictionary.com/ tetanic + contraction (last visited Feb. 18, 2014).
. "Anoxic brain damage is injury to the brain due to a lack of oxygen." Anoxic Brain Damage, Mount Sinai Hospital, http://www.mountsinai. , org/patient-care/health-library/diseases-and-conditions/anoxic-brain-damage (last visited Feb. 18, 2014).
. "Thoracic outlet syndrome is a group of disorders that occur when the blood vessels or nerves in the space between your collarbone and your first rib (thoracic outlet) become compressed. This can cause pain in your shoulders and neck and numbness in your fingers." Thoracic Outlet Syndrome, Mayo Clinic (Aug. 1, 2013), http:// www.mayoclinic.org/diseases-conditions/ thoracic-outlet-syndrome/basics/definition/con-20040509.
. See Eve G. Spratt et al., Somatoform Disorder, Medscape Reference (Jan. 24, 2012), http:/ emedicine.medscape.com/article/91 8628 overview. Persons suffering from somatoform disorder have symptoms that cannot be fully explained by general medical or neurologic conditions. See id.
. "Pulmonary edema is a condition caused by excess fluid in the lungs. This fluid collects in the numerous air sacs in the lungs, making it difficult to breathe." Pulmonary Edema, Mayo Clinic (July 29, 2011), http:/www.mayoclinic. org/diseasesconditions/pulmonary-edema/basics/ definition/con-20022485.
. "Myofascial pain syndrome is a chronic pain disorder" in which "pressure on sensitive points in your muscles (trigger points) causes pain in seemingly unrelated parts of your body." Myo-fascial Pain Syndrome, Mayo Clinic (Jan. 5, 2012), http://www.mayoclinic.org/diseases-conditions/myofascial-painsyndrome/basics/ definition/CON-20033195. This condition "typically occurs after a muscle has been contracted repetitively." Id.
. Because Dr. Dall's report is not in the record, our description of its content is based on the portions of the report that Shannon's trial counsel read into the record.
. "Fibromyalgia is a disorder characterized by widespread musculoskeletal pain accompanied by fatigue, sleep, memory and mood issues." Fibromyalgia, Mayo Clinic (Jan. 22, 2011), http:// www.mayoclinic.org/diseases-conditions/ fibromyalgia/basics/definition/CON-20019243.
. Because the verdict form signed by the jury is not part of the record, we quote the transcript of the trial court's reading of it into the record.
. These statements are found in the depositions of Shannon, Fiancé, Father, and Friend, which are included in the record as attachments to Shannon's memorandum in support of her motion to admit the statements.
. Shannon and Hospital both briefed the apology rule and the apology statute in the trial court and on appeal, but this was not the basis of the trial court's decision. However, we may properly affirm on any basis apparent on the record. Bailey v. Bayles, 2002 UT 58, ¶10, 52 P.3d 1158 ("[Aln appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record...." (citation and internal quotation marks omitted)); see also Francis v. State, 2010 UT 62, ¶10, 248 P.3d 44 ("To be apparent on the record, [tlhe record must contain sufficient and uncontrovert-ed evidence supporting the ground or theory to
. Subsection (b) of rule 409 was added in 2010, after the 2007 intravenous epinephrine injection. See Utah R. Evid. 409 amend. notes; Joint Resolution on Hospital Claims Management, HJR. 34, § 1, 2010 Utah Laws 2952. However, Shannon does not challenge Hospital's contention that the rule is procedural and, therefore, that subsection (b) applies to Shannon's attempt to admit the statements at her 2011 trial.
. Shannon argues that the apology rule and apology statute do not apply to statements by Dr. Paradise, because Dr. Paradise is not a defendant and the rule and statute apply only to statements 'by the defendant." See Utah Code Ann. § 78B-3-422(2) (LexisNexis 2012); Utah R. Evid. 409(b). Hospital does not directly respond to this argument but implies that Dr. Paradise should be viewed as a "representative" of Hospital. We need not resolve this issue because we
. The Utah Legislature first enacted the apology statute in 2006. See Restrictions on Use of Physician Disclosures, ch. 225, § 2, 2006 Utah Laws 1077, 1078 (now codified at Utah Code Ann. § 78B-3-422 (LexisNexis 2012)). The legislature later amended the apology rule, in accordance with the Utah Constitution's allocation of powers. See Utah Const. art. VIII, § 4 (providing that the supreme court shall adopt rules of evidence and procedure and that the legislature may amend those rules upon a vote of two thirds of all members of both houses of the legislature); Joint Resolution to Amend Rule of Evidence, HJR. 38, § 1, 2011 Utah Laws 3137; Joint Resolution on Hospital Claims Management, HJR. 34, § 1, 2010 Utah Laws 2952.
. Dr. Eisendrath's testimony also addressed the January 31, 2007 standard lien form that Shannon signed for her chiropractor, Dr. Clayton, providing that Dr. Clayton would be paid from any settlement or judgment against Hospital. Dr. Eisendrath explained that the lien might influence a patient in a way similar to the filing of litigation and that it also calls into question the impartiality of any diagnosis by the chiropractor. Shannon argues that Dr. Eisendrath's discussion of the lien exacerbated the harm from admitting evidence of her first contact with her attorney. However, the subject of the standard lien had been explored without objection during Dr. Clayton's cross-examination, and the form itself was later admitted into evidence without objection. Dr. Eisendrath's discussion of the lien was not unduly prejudicial and was relevant to show Dr. Clayton's potential bias. Accordingly, the trial court did not exceed its discretion in admitting it.
. Despite.its relevance, evidence should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Utah R. Evid. 403; see also Yingling v. Hartwig, 925 S.W.2d 952, 956 (Mo.Ct.App.1996) (stating that even if it were relevant, expert testimony on how litigation affects a person's subjective complaints of physical injury was unfairly prejudicial); Martinez v. Williams, 312 S.W.2d 742, 752 (Tex.Civ.App.1958) ("[Where the defendant merely seeks to show that the plaintiff is a chronic personal injury litigant the evidence will be excluded on the theory that its slight probative value is outweighed by the danger of unfairly prejudicing the claim of an innocent litigant." (citation and internal quotation marks omitted)). We do not consider whether the evidence of when Shannon consulted counsel is unduly prejudicial, however, because Shannon has not argued on appeal that this evidence was inadmissible under rule 403. See Utah R.App. P. 24(a)(9) ("The argument shall contain the contentions and reasons of the appellant with respect to the issues presented ... with citations to the authorities, statutes, and parts of the record relied on."); Gilley v. Blackstock, 2002 UT App 414, ¶10 n. 2, 61 P.3d 305 (declining to address an issue that was not argued in the appellant's brief).
. At trial, Hospital's counsel referred to the paperwork as "peer review protocol" that Hospital's policies require "when there's some incident," such as a medical mistake.
. The trial court offered to give a curative instruction, but Hospital declined.
. Shannon concedes that she did not seek to introduce specific information from the risk management paperwork.
. Nurse's replacement was not called by either party to testify at trial.
. Nurse testified that Shannon had an elevated heart rate and palpitations after receiving the epinephrine. Although she did not observe Shannon's blood pressure readings drop, Nurse believed that Shannon's blood pressure was a little low later, when Nurse was not there.
. Friend also testified that Shannon's blood pressure dropped at one point.
. On appeal, Shannon also argues that the pen straw evidence should have been excluded under rule 404(b) of the Utah Rules of Evidence. However, Shannon did not present this argument to the trial court, and we therefore do not consider it further. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶51, 99 P.3d 801 (explaining that issues that are not raised at trial are usually deemed waived).
. In spite of the trial court's order to exclude references to Shannon's DUI, Hospital's expert, Dr. Lawton, testified during cross-examination that he saw "videos when [Shannon] got the DUI." In response, Shannon asked the court to exclude any further references to substance abuse. The trial court refused to "tak[e) something that is potentially very relevant off the table because of ... an inadvertent slip."
. Shannon also contends that her possession of the pen straw was inadmissible under rules 608 and 609 of the Utah Rules of Evidence. As discussed, supra 141, rule 608 governs the use of extrinsic evidence to attack or support a witness's character for truthfulness. Utah R. Evid. 608(b). Because Shannon did not testify, this rule does not apply. Rule 609 controls the impeachment of a witness by evidence of her conviction of a crime. Utah R. Evid. 609. Again, this rule is limited by its terms to impeachment of witnesses. Furthermore, under rule 609, "the final judgment of the court on a guilty verdict or plea ... constitutes a conviction for impeachment purposes." State v. Duncan, 812 P.2d 60, 64 (Utah Ct.App.1991). Rule 609 does not apply where, as here, the evidence did not pertain to a criminal conviction, let alone even indicate that Shannon had been charged with a crime. See Utah R. Evid. 608 ("Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness." (emphasis added)); cf. State v. Valdez, 2006 UT App 290, ¶¶9-12, 141 P.3d 614 (analyzing defendant's argument that the trial court abused its discretion by disallowing cross-examination on a witness's dismissed charge under rule 608).
. Dr. Anden's deposition was read to the jury in lieu of live testimony.
. Shannon also claims that she is entitled to a new trial due to the cumulative harm caused by the trial court's errors. "'Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence ... that a fair trial was had." State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (omission in original) (citation and internal quotation marks omitted); see also Radman v. Flanders Corp., 2007 UT App 351, ¶20, 172 P.3d 668. "In assessing a claim of cumulative error, we consider all the identified errors, as well as any errors we assume may have occurred." Dunn, 850 P.2d at 1229. Even viewing the effect of the trial court's exclusion of Hospital's statements of fault in conjunction with any assumed errors, our confidence in the fairness of the trial is not undermined.