Jonna M. (Shannon) Lawrence v. MountainStar Healthcare

¶1 Jonna M. (Shannon) Lawrence1 appeals from a jury verdict

in favor of MountainStar Healthcare, Northern Utah Healthcare

Corporation, and St. Mark's Hospital (collectively, Hospital). We

affirm.

Lawrence v. MountainStar Healthcare

2. "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).

3. A portion of Friend's videotaped deposition was played for the

jury in lieu of live testimony.

4. 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://medicaldictionary.

thefreedictionary.com/tetanic+contraction (last visited

Feb. 18, 2014).

20120352-CA 2 2014 UT App 40

BACKGROUND2

¶2 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

emergency room and prescribed several medications. The first,

epinephrine, was to be administered subcutaneously, i.e., under the

skin, and the two others were to be administered intravenously,

i.e., through the vein. Contrary to Dr. Paradise's orders, a nurse

(Nurse) administered all of the medications intravenously.

Shannon's friend (Friend), who was present at the time, testified3

that immediately after Nurse administered the epinephrine

intravenously, Shannon cried out in pain and her back arched up

off the bed. 4 Friend also saw Shannon vomit once or twice.

According to Nurse, Shannon sat up, put her hands on her chest,

said that her heart was palpitating, and became pale, nauseous, and

anxious. Nurse realized her mistake when she noticed the side

effects of epinephrine happen faster than expected. After Nurse

alerted a physician, Shannon was transferred to the intensive care

Lawrence v. MountainStar Healthcare

5. "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/diseasesand-

conditions/anoxic-brain-damage (last visited Feb. 18, 2014).

6. "Thoracic outlet syndrome is a group of disorders that

occur when the blood vessels or nerves in the space between

(continued...)

20120352-CA 3 2014 UT App 40

unit (ICU) where she received further medical attention.

Meanwhile, Nurse's shift ended as scheduled, and she completed

risk management paperwork related to the incident before leaving

the hospital.

¶3 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.

¶4 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.

¶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,5 cardiac

damage, and thoracic outlet syndrome,6 as well as headaches,

Lawrence v. MountainStar Healthcare

6. (...continued)

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.

20120352-CA 4 2014 UT App 40

depression, anxiety, cognitive defects, and neck, shoulder, and back

pain. Subsequently, Shannon and Hospital reached a stipulation

"that the administration of epinephrine to [Shannon] intravenously

rather than subcutaneously by [Nurse] on January 22, 2007 was a

breach of the applicable standard of care.” The parties clarified,

however, that "[t]his stipulation does not constitute, and is neither

intended, nor should it be construed as, an admission that this

breach . . . 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.” The trial court took notice of the joint

stipulation and ordered that only the issues of causation and

damages would be submitted to the jury for decision.

¶6 Before trial, Hospital filed a motion to exclude references to

any statements made by persons associated with Hospital

regarding offers to pay medical expenses on the grounds that such

information was irrelevant and unfairly prejudicial. Shannon, in

turn, moved to admit those and other statements where Hospital

allegedly admitted fault, arguing that the statements were

admissions by a party opponent that should be permitted into

evidence. According to Hospital, the statements Shannon identified

were inadmissible as expressions of apology or compassion. The

trial court granted Hospital's motion and denied Shannon's, ruling

that the statements were irrelevant because "[n]one of [them] are

helpful to resolve any of the issues that are remaining in this case,”

namely "what harm was actually caused by this error.”

¶7 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,

Lawrence v. MountainStar Healthcare

7. See Eve G. Spratt et al., Somatoform Disorder, Medscape Reference

(Jan. 24, 2012), http://emedicine.medscape.com/article/9186

(continued...)

20120352-CA 5 2014 UT App 40

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: "[O]n July 4, 2011

[Shannon] was in possession of a plastic [pen] straw with opiate

residue.”

¶8 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 neck 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.7

Lawrence v. MountainStar Healthcare

7. (...continued)

28-overview. Persons suffering from somatoform disorder have

symptoms that cannot be fully explained by general medical or

neurologic conditions. See id.

8. "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.

20120352-CA 6 2014 UT App 40

¶9 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.” 8 Hospital also presented evidence that the results of

two scans of Shannon's brain and a test to evaluate the blood

vessels of Shannon's head and neck for evidence of vertebral artery

dissection, brain cell death, or abnormal intracranial flow were all

normal. In addition, Hospital presented evidence that before

Shannon was discharged, her chest CT scan and an MRI of her

spine also came back normal aside from "minimal endplate

degenerative changes.”

¶10 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 neuropsychologist. Dr. Fish, one of the physiatrists, 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

Lawrence v. MountainStar Healthcare

9. "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.” Myofascial 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.

10. 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.

11. "Fibromyalgia is a disorder characterized by widespread

musculoskeletal pain accompanied by fatigue, sleep, memory and

(continued...)

20120352-CA 7 2014 UT App 40

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. Anden, the

second physiatrist, who had treated Shannon for musculoskeletal

problems, diagnosed Shannon with thoracic outlet syndrome and

myofascial pain syndrome.9 Shannon also called Dr. Paradise, who

testified that he was unable to determine whether Shannon's

symptoms were complications resulting from the underlying

allergic reaction that brought her into the emergency room, the

epinephrine, or some combination of both. Dr. Paradise further

indicated that complications can occur from epinephrine whether

it is administered intravenously or subcutaneously.

¶11 Hospital presented testimony from five expert witnesses in

its defense, including a neuroradiologist, a neuropsychologist, a

cardiologist, a neurologist, and a psychiatrist. During crossexamination

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.10 In his report, Dr. Dall

diagnosed Shannon with a number of general medical conditions,

including myofascial pain syndrome and fibromyalgia,11 which he

Lawrence v. MountainStar Healthcare

11. (...continued)

mood issues.” Fibromyalgia, Mayo Clinic (Jan. 22, 2011),

http://www.mayoclinic.org/diseases-conditions/fibromyalgia/

basics/definition/CON-20019243.

20120352-CA 8 2014 UT App 40

linked to the tetanic contraction she experienced immediately after

the intravenous administration of epinephrine. Each time Shannon

referred to Dr. Dall's report during her cross-examination of

Hospital's experts, Hospital objected. The first two times, the trial

court allowed the questioning, cautioning that the attorneys'

questions are not evidence. But when Shannon continued this

practice with Hospital's psychiatric expert, Dr. Eisendrath, the trial

court eventually admonished Shannon not to use her questions to

introduce evidence that had not been admitted.

¶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 her attorney

while she was still hospitalized was relevant and admissible. The

trial court agreed with Hospital, ruling that Shannon's early contact

with her lawyer could be admitted because her "claims

mindedness” is "relevant for the fact that it suggests that [she's]

motivated to increase the amount of the claim.” However, the trial

court did not permit Shannon to explain "the fact that [Hospital

was] acting to defend [itself] from early on . . . after the incident”

"[b]ecause this is a case where liability is admitted.”

¶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.

Lawrence v. MountainStar Healthcare

12. 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.

20120352-CA 9 2014 UT App 40

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.

¶14 The jury returned a verdict 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 plaintiff's

injuries?”12 The jury accordingly did not award any damages.

Shannon filed a motion for judgment notwithstanding the verdict

and a motion for a new trial. On April 3, 2012, the trial court denied

both motions. Shannon timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶15 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.

¶16 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 403 of

Lawrence v. MountainStar Healthcare

20120352-CA 10 2014 UT App 40

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

(citation and internal quotation marks omitted). However, when

the trial court's interpretation of an evidentiary 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.”).

¶17 As her second issue for appeal, Shannon argues that the trial

court erred by limiting her cross-examination of one of the

defense's expert witnesses. "While unduly harsh limitation of a key

expert witness can amount to prejudicial error, the proper scope of

cross-examination is within the sound discretion of the trial court

and should not be disturbed absent a showing of abuse.” Whitehead

v. American Motors Sales Corp., 801 P.2d 920, 923–24 (Utah 1990); see

also Perkins v. Fit-Well Artificial Limb Co., 514 P.2d 811, 813 (Utah

1973) ("The trial judge is allowed a wide discretion in his control

over the examination of witnesses—lay and expert alike.”).

¶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

Lawrence v. MountainStar Healthcare

20120352-CA 11 2014 UT App 40

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

section 78B-3-422 of the Utah Code.

Lawrence v. MountainStar Healthcare

20120352-CA 12 2014 UT App 40

¶20 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 circumstances; (2) breach of that standard

by [Hospital]; (3) injury proximately caused by the breach; and (4)

damages.” Morgan v. Intermountain Health Care, Inc., 2011 UT App

253, ¶ 8, 263 P.3d 405. 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, "[D]on'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]ou 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,

"[E]verything 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, "[T]here's been an incident,

accident” and, "I want you to know we've given [Shannon] the best

room in the house, that we're going to take care of her, and that

you don't need to be concerned about treatment or whatever it

takes to get her well.” Father was also prepared to testify that when

he inquired about Shannon's need for future medical care,

Hospital's risk manager responded, "[W]e have doctors and

specialists at [Hospital's emergency room]” and that Hospital was

"absolutely” going to take care of Shannon's condition. Father

would have testified that Hospital's insurance adjuster told him,

"[W]e're not going to pay for things unless we can actually prove

they are a medical condition.” The statements Shannon sought to

admit also included Friend's recollection that a doctor told her and

Lawrence v. MountainStar Healthcare

13. 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.

20120352-CA 13 2014 UT App 40

Shannon that they "were really sorry about everything that

happened” and they "would make sure she was well taken care of

from that point forward.” Finally, Shannon wanted to admit the

following statements Dr. Paradise made to her: "I'm really sorry.

There was kind of a complication. We messed up. . . . [D]on't worry

about any of this. We're going to take care of you.”13

¶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.

¶23 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 least 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

Lawrence v. MountainStar Healthcare

14. 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 ("[A]n 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, [t]he record must contain

sufficient and uncontroverted evidence supporting the ground or

theory to place a person of ordinary intelligence on notice that the

prevailing party may rely thereon on appeal.” (alteration in

original) (citation and internal quotation marks omitted)).

20120352-CA 14 2014 UT App 40

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 ("[E]vidence that has even the

slightest probative value is relevant under the definition in rule

401.” (citation and internal quotation marks omitted)).

¶24 Nevertheless, most of the statements were inadmissible

under rule 409 (apology rule) and section 78B-3-422 (apology

statute).14 The apology rule provides,

(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

Lawrence v. MountainStar Healthcare

15. 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, H.J.R. 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.

20120352-CA 15 2014 UT App 40

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. 409.15 The apology statute's language is nearly

identical to subsection (b) of the apology rule:

(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:

(i) apology, sympathy, commiseration,

condolence, or compassion; or

(ii) a general sense of benevolence; or

(b) describes:

(i) the sequence of events relating to the

unanticipated outcome of medical care;

(ii) the significance of events; or

(iii) both.

Utah Code Ann. § 78B-3-422 (LexisNexis 2012).

Lawrence v. MountainStar Healthcare

16. 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 conclude that the exclusion of Dr. Paradise's statement

"I'm really sorry” was harmless for the same reasons discussed

below, see infra ¶ 35.

20120352-CA 16 2014 UT App 40

¶25 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(b)(1); see also Utah

Code Ann. § 78B-3-422(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., 989

N.E.2d 35, 37, 40 (Ohio 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.16 See Utah Code

Ann. § 78B-3-422(2)(a)(i); Utah R. Evid. 409(b)(1).

Lawrence v. MountainStar Healthcare

17. 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

(continued...)

20120352-CA 17 2014 UT App 40

¶26 However, the statements that there had been an accident or

complication and that "[w]e 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.

¶27 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., 952 N.E.2d 1216, 1219 (Ohio Ct. App. 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, e.g., 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. § 13-25-135(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.2d 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.17 See

Lawrence v. MountainStar Healthcare

17. (...continued)

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, H.J.R. 38, § 1, 2011 Utah Laws 3137; Joint Resolution

on Hospital Claims Management, H.J.R. 34, § 1, 2010 Utah Laws

2952.

20120352-CA 18 2014 UT App 40

Grappendorf v. Pleasant Grove City, 2007 UT 84, ¶ 9, 173 P.3d 166

("When interpreting a statute, our goal is to give effect to the

legislature's intent and purpose.”). To discern that intent, we turn

first to the language of the statute. See id.

¶28 Utah's apology statute excludes "unsworn 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. § 78B-3-422(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

"[t]his 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.

¶29 Further, we are unable to ascertain from the structure or

context of the apology statute whether the exclusion of statements

of apology also excludes statements of fault. See generally id. ¶ 21

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20120352-CA 19 2014 UT App 40

("A first resort for selecting among a range of meanings left open

by the dictionary is the structure and context of the statutory

language.”). Either interpretation is plausible based on the plain

language of subsection 422(2)(a). The apology statute excludes

statements describing the "sequence” or "significance” of the

"events relating to the unanticipated outcome of medical care.”

Utah Code Ann. § 78B-3-422(2)(b) (LexisNexis 2012). Based on that

language, the Ohio Court of Appeals interpreted Utah's apology

statute as prohibiting the admission of statements of fault. See

Davis, 952 N.E.2d at 1219. While we agree that the Ohio court's

interpretation is one reasonable construction of subsection

422(2)(b), we are not convinced that it is the only reasonable

interpretation of that language. Just as an apology may or may not

include an admission of fault, a description of the sequence or

significance of events related to an unanticipated medical outcome

may or may not include an admission of fault. Thus, there is

nothing about the context of the statute as a whole that dictates

whether the term "apology” was intended to include statements of

fault.

¶30 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., 485

P.2d 1035, 1037 (Utah 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

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20120352-CA 20 2014 UT App 40

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.

¶32 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

would be admissible.” See Recording of Utah House Floor Debates,

S.B. 41 Substitute, 56th Leg., 2006 Gen. Sess. (Feb. 27, 2006)

(statements by Reps. M. Susan Lawrence and Bradley G. Last). The

House debate also addressed the impact of the exclusion of

Lawrence v. MountainStar Healthcare

20120352-CA 21 2014 UT App 40

descriptions of the sequence or significance of events found in

subsection 422(2)(b). When asked whether "a conversation that

goes beyond apology and explains what happened” would be

excluded, the House sponsor answered, "If there's no fault

admitted,” the conversation would be inadmissible. Id. (statements

by Reps. Jackie Biskupski and Bradley G. Last). After a

representative raised concerns that a doctor could admit

responsibility and then take a contrary position at trial, the House

sponsor stated, "First of all, let me just remind you that the word

'fault' was taken out of this legislation.” Id. (statements by Reps.

Ross I. Romero and Bradley G. Last).

¶33 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-3-422. The trial court therefore erred in excluding the

statements of fault. Cf. Davis v. Wooster Orthopaedics & Sports Med.,

Inc., 952 N.E.2d 1216, 1218, 1220–21 (Ohio Ct. App. 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).

¶34 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 ("[T]he 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 exclusion 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 an 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.

Lawrence v. MountainStar Healthcare

20120352-CA 22 2014 UT App 40

¶35 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 ¶ 23, 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

¶36 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 misrouting 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 claiming that

no pain, no nothing adverse was caused by the epinephrine?”

Hospital's counsel answered,

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 neurologic function

was normal, and everything else that [Shannon is]

claiming is brain damage and such has nothing to do

Lawrence v. MountainStar Healthcare

20120352-CA 23 2014 UT App 40

with that incident. That's what the fight in this case

is.

The trial court responded, "[T]hat'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?”

¶37 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 misrouting 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 circumstances, we cannot conclude that Hospital

changed its position at trial.

Lawrence v. MountainStar Healthcare

20120352-CA 24 2014 UT App 40

¶38 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

¶39 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.

¶41 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 witness's

character for truthfulness.” Utah R. Evid. 608(b) (emphases added).

"[B]y its plain language, rule 608 applies only to a witness's

character for truthfulness.” State v. Perea, 2013 UT 68, ¶ 56. Shannon

was not a witness at trial; she was not present and did not testify at

trial either in person or by deposition. Accordingly, rule 608 is not

Lawrence v. MountainStar Healthcare

18. 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.

20120352-CA 25 2014 UT App 40

applicable. Cf. id. ¶¶ 56–58 (acknowledging the policies behind rule

608 may be implicated in admitting out-of-court statements of nontestifying

individuals but declining to determine in that case

whether to apply rule 608's prohibition beyond its plain language).

¶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.18

Thus, Hospital claims that the evidence was admissible under rule

703 as the facts or data relied upon by an expert. See Utah R. Evid.

703 (providing that an expert may base his opinion on facts or data

relied upon by experts in the field and that such facts or data may

be disclosed to the jury even if otherwise inadmissible if their

probative value in helping the jury evaluate the opinion

Lawrence v. MountainStar Healthcare

20120352-CA 26 2014 UT App 40

substantially outweighs their prejudicial effect). Shannon does not

respond to Hospital's rule 703 argument, instead limiting her

challenge on appeal to rules 402 and 608. See Utah R. Evid. 402

(providing that irrelevant evidence is inadmissible); id. R. 608(b)

(excluding evidence of specific instances of conduct to attack or

support a witness's character for truthfulness). Because we

conclude below that the trial court did not exceed its discretion in

determining that the evidence was relevant, we do not address

Hospital's alternative position that it was admissible under rule

703.

¶43 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 934–39. 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 Ottens had

unethically inflated her damages, the evidence of when she first

consulted counsel was irrelevant. See id. ¶¶ 71–72. 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.

¶44 "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 issue

are not in agreement. Those that have held that evidence of actions

taken in anticipation of litigation is inadmissible have reasoned that

it is improper for parties to "attempt[] to discredit plaintiffs for

exercising rights fundamental to or granted by the legal system.”

Lawrence v. MountainStar Healthcare

20120352-CA 27 2014 UT App 40

Carlyle v. Lai, 783 S.W.2d 925, 929–30 (Mo. Ct. App. 1989) (holding

that the admission of evidence of when the plaintiffs in a wrongful

death action hired counsel was irrelevant and prejudicial); see also

Watson v. Builders Square, Inc., 563 So. 2d 721, 722–23 (Fla. Dist. Ct.

App. 1990) (holding that trial court abused its discretion in

admitting irrelevant evidence of when plaintiff contacted an

attorney); Nguyen v. Haworth, 916 S.W.2d 887, 888–89 (Mo. Ct. App.

1996) (affirming trial court's order granting a new trial due to the

admission of testimony that plaintiff planned to sue defendant

soon after defendant struck plaintiff's minor son with an

automobile); Martinez v. Williams, 312 S.W.2d 742, 752 (Tex. Civ.

App. 1958) (affirming trial court's exclusion of evidence of when

plaintiff hired counsel as unfairly prejudicial because "it is not

proper to show in evidence that a personal injury litigant is 'claims

minded' in an effort to attack his credibility”). In Carlyle v. Lai, 783

S.W.2d 925 (Mo. Ct. App. 1989), the Missouri Court of Appeals

explained, "Accessing the legal system is normally not to be

discouraged and, exercising one's right to utilize the legal system

within established rules and procedures should normally not . . . be

used to attempt to discredit a litigant with a jury.” Id. at 928–30

(reversing and remanding for a new trial because defendant

injected an improper issue into the trial by cross-examining

plaintiff and arguing in summation about the fact that plaintiff

hired an attorney fifteen days after the death of her son).

¶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 circumstances, 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 "[s]tatements 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

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20120352-CA 28 2014 UT App 40

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.

¶46 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 1132, 1135–37. 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 1132, 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 608593, 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

Yingling and Carlyle, concluding instead that "given the types of

damages plaintiff is seeking to recover,” the defense's questions

about "whether secondary gain was playing any kind of role in

plaintiff's situation” were relevant and not unduly prejudicial.

Watson, 477 F. Supp. 2d at 1136; see also Williams v. McCoy, 550

S.E.2d 796, 800 (N.C. Ct. App. 2001) ("[E]vidence concerning when

a litigant seeks legal counsel can, in some instances, be

admissible. . . . [I]nquiry concerning when plaintiff hired an

attorney is admissible to impeach a litigious plaintiff and is relevant

Lawrence v. MountainStar Healthcare

19. 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)

("[W]here 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

(continued...)

20120352-CA 29 2014 UT App 40

to rebut the existence and extent of plaintiff's injuries from the

accident, if evidence exists to support the inquiry on either basis.”).

¶47 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 once 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. Eisendrath'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).19

Lawrence v. MountainStar Healthcare

19. (...continued)

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).

20. 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.

20120352-CA 30 2014 UT App 40

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” allowed 20 Hospital to cover its own potential liability

preemptively and to shield details of Shannon's adverse reaction

as legally privileged material. Shannon suggests that Nurse was

replaced so that she could complete risk management paperwork

and that Shannon's care suffered as a result. She also suggests that

Hospital's act of preparing for litigation soon after the erroneous

drug administration is itself an admission of causation. Hospital

disputes these allegations and asserts that there was no

interruption in Shannon's medical care. It further responds that the

risk management process was irrelevant because of the stipulation

that Hospital violated the standard of care by administering the

epinephrine intravenously.

¶49 In her opening statement, Shannon stated that Hospital

focused on legal issues shortly after Nurse incorrectly administered

the epinephrine. Hospital objected to these comments. After

Lawrence v. MountainStar Healthcare

21. The trial court offered to give a curative instruction, but

Hospital declined.

22. Shannon concedes that she did not seek to introduce specific

information from the risk management paperwork.

23. Nurse's replacement was not called by either party to testify at

trial.

20120352-CA 31 2014 UT App 40

opening statements, the trial court ruled that Hospital's risk

management activities were privileged and prohibited Shannon

from asking about them or suggesting that Hospital had

wrongfully withheld information about them.21 See generally Utah

Code Ann. § 78B-1-137 (LexisNexis 2012) (describing privileged

communications that are inadmissible in court); Utah R. Civ. P.

26(b)(1) (providing that information "created specifically as part of

a request for an investigation, the investigation, findings, or

conclusions of peer review, care review, or quality assurance

processes of any organization of health care providers” are

privileged matters that are not discoverable or admissible). Apart

from her vague claims of unfairness, Shannon has not pointed to

any authority to support her assertion that the trial court exceeded

its discretion by limiting Shannon's references to Hospital's risk

management paperwork.22

¶50 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.23 In addition, the trial court permitted

Shannon to highlight the absence of notations of vital-sign readings

in her medical records, and trial counsel examined at least two

witnesses about those gaps. Nurse acknowledged a sixty-minute

period during which there are no notes of Shannon's blood

pressure and a seventy-minute period with no oxygen-saturation

readings, but she also testified that she did not observe Shannon's

blood pressure or oxygen saturation drop below normal levels,

Lawrence v. MountainStar Healthcare

24. 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.

25. Friend also testified that Shannon's blood pressure dropped at

one point.

20120352-CA 32 2014 UT App 40

even after the intravenous administration of epinephrine.24 Dr.

Paradise explained that Shannon would have been monitored

remotely and that any abnormal readings would have set off

alarms. In addition, Shannon presented testimony regarding her

early physical response to the epinephrine. Friend and Nurse both

witnessed her reaction and described those events in detail. Dr.

Paradise also testified about Shannon's medical condition

immediately after the intravenous administration of the

epinephrine and his treatment of her symptoms. He indicated that

he treated Shannon for low blood pressure,25 elevated heart rate,

shortness of breath, chest pain, nausea, vomiting, headache, and

pulmonary edema.

¶51 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 have 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

circumstances, 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.

Lawrence v. MountainStar Healthcare

20120352-CA 33 2014 UT App 40

C. Admission of Shannon's Possession of Drug Paraphernalia

¶52 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.

¶53 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, "[W]e still

reserve[] 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 . . .

Lawrence v. MountainStar Healthcare

26. 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).

20120352-CA 34 2014 UT App 40

evidence introduced by [the appellee]”); see also Kobashigawa v.

Silva, 300 P.3d 579, 599 (Haw. 2013) ("[O]nce 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

¶54 Shannon attacks the trial court's admission of the pen straw

evidence on relevancy grounds.26 The record in this case shows that

the trial court carefully examined the evidence of Shannon's July 4,

2011 arrest. The trial court reasoned that the possession of

paraphernalia "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].” In

other words, the trial court concluded that the evidence that

Shannon possessed the pen straw with drug residue was offered by

the defense to prove that the cause of Shannon's claimed injuries

was unrelated to Nurse's breach of the standard of care.

¶55 One of Hospital's experts, Dr. Eisendrath, testified that

Shannon's substance abuse may have motivated her to complain

about pain to various physicians in order to obtain the medication.

He also testified that Shannon's substance abuse could explain her

complaints about impaired cognitive functions. Furthermore, Dr.

Eisendrath's diagnosis included his opinion that Shannon suffers

Lawrence v. MountainStar Healthcare

27. 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.”

20120352-CA 35 2014 UT App 40

from substance abuse disorder, something he considered relevant

to his assessment of her psychological condition generally and his

specific opinion that her symptoms were caused by somatization

disorder. The trial court determined that the evidence was "highly

relevant” to the issues before the jury. The cause of Shannon's

symptoms was a key question for the jury to decide. Based on Dr.

Eisendrath's testimony and the low threshold necessary to establish

relevance, the trial court did not exceed its discretion in concluding

that the evidence of Shannon's drug use was relevant to the issue

of causation. See Utah R. Evid. 401; id. R. 402.

¶56 However, relevant evidence must also be admissible under

rule 403. 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.

¶57 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,27 her failure to pass the field sobriety test, and the arresting

officer's observations stemming from the July 4, 2011 arrest. Next,

the court urged the parties to reach a stipulation so that the jury

would have no need to consider the credibility of the information.

Lawrence v. MountainStar Healthcare

20120352-CA 36 2014 UT App 40

The result of those efforts was a carefully worded factual

statement: "[O]n July 4, 2011 [Shannon] was in possession of a

plastic [pen] straw with opiate residue.” By reducing the admissible

evidence to one unemotional statement, the trial court properly

assured that the probative value of the evidence was not

substantially outweighed by the danger of unfair prejudice. See

Glacier Land Co. v. Claudia Klawe & Assocs., 2006 UT App 516, ¶ 24,

154 P.3d 852 ("[T]he trial court is granted broad discretion when

weighing the probative value of evidence against the reasons for

exclusion enumerated in rule 403.”).

¶58 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

¶59 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 703 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 substantially outweighs

their prejudicial effect.

Lawrence v. MountainStar Healthcare

20120352-CA 37 2014 UT App 40

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); cf. 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. . . . [O]nce 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)).

¶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. Eisendrath 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

Lawrence v. MountainStar Healthcare

28. 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 ¶ 41, 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 crossexamination

on a witness's dismissed charge under rule 608).

20120352-CA 38 2014 UT App 40

of July, a pretty active problem.” By testifying that this information

is useful "when [trying] to come to a comprehensive assessment of

somebody,” Dr. Eisendrath 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. 703. Accordingly, we reject Shannon's

argument that Dr. Eisendrath could not properly rely on this

evidence in forming his opinion.28

II. The Scope of Cross-Examination

¶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

Lawrence v. MountainStar Healthcare

20120352-CA 39 2014 UT App 40

diagnosis of any type of psychological somatization disorder.”

Hospital argues that Shannon was permitted to cross-examine Dr.

Eisendrath extensively and that Shannon was properly "required

to ask an appropriate question rather than read wholesale portions

of Dr. Dall's report, which was not in evidence.” Thus, Hospital

argues that the trial court's only limitation on Shannon's crossexamination

was the form of counsel's questions.

¶62 "An assertion or opinion given on direct testimony that

bears on a key issue in the case is a proper subject of crossexamination,”

and parties are permitted to conduct crossexamination

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 P.2d 723, 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., 514 P.2d 811, 813 (Utah 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”).

¶63 In the present case, Shannon cross-examined Dr. Weight,

Hospital's neuropsychologist, 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

Lawrence v. MountainStar Healthcare

20120352-CA 40 2014 UT App 40

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 crossexamination

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 interrupted,

stating, "Wait a minute. That's been asked and answered. . . .

[Y]ou'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.

¶64 The trial court did not unduly limit Shannon's crossexamination

of Dr. Eisendrath. 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. Dall'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. Eisendrath's

opinion at length and effectively demonstrate that Dr. Dall

disagreed with it.

Lawrence v. MountainStar Healthcare

20120352-CA 41 2014 UT App 40

¶65 Nevertheless, Shannon cites rule 703 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, "[r]ule 703 cannot be used to

introduce evidence through an expert for purposes other than the

expert's conclusions and thus circumvent 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 circumvent 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 nontestifying

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).

¶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” cross-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, "[D]id 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

Lawrence v. MountainStar Healthcare

29. Dr. Anden's deposition was read to the jury in lieu of live

testimony.

20120352-CA 42 2014 UT App 40

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

fibromyalgia, but Dr. Weight testified that fibromyalgia "is not an

established diagnosis” and therefore Shannon's symptoms were

"not fully explained.” Thus, prior to Dr. Eisendrath'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 crossexamination

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 circumstances, 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.

¶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, testified29 that Shannon suffered

from myofascial pain syndrome, and other testimony established

that Shannon had been prescribed medication used primarily to

treat fibromyalgia. Consequently, the jury was aware that other

medical professionals either diagnosed or treated Shannon for both

fibromyalgia and myofascial pain syndrome, the same medical

conditions that Dr. Dall's report included in its diagnosis of

Shannon's condition.

¶68 In summary, the trial court acted within its discretion by

cautioning Shannon on the use of Dr. Dall's report in her crossexamination

of Dr. Eisendrath. See Perkins v. Fit-Well Artificial Limb

Lawrence v. MountainStar Healthcare

20120352-CA 43 2014 UT App 40

Co., 514 P.2d 811, 813 (Utah 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

¶69 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.”

¶70 Because "[i]t is the exclusive function of the jury to weigh

the evidence and to determine the credibility of the

witnesses, . . . we will not overturn a verdict on a challenge to the

sufficiency of the evidence [s]o 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, "[t]he existence of contradictory evidence or of

Lawrence v. MountainStar Healthcare

20120352-CA 44 2014 UT App 40

conflicting inferences does not warrant disturbing the jury's verdict

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.

¶71 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 physicians 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 also acknowledged the

possibility that subcutaneous injection could have led to adverse

reactions. Dr. Krusz testified that it is a "speculative question” how

Shannon would have reacted had the epinephrine been

administered as ordered. In other words, multiple witnesses

acknowledged weaknesses in Shannon's causation theory, and at

least two witnesses testified that they could not say which of

several possibilities caused Shannon's immediate reaction.

Lawrence v. MountainStar Healthcare

30. 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.

20120352-CA 45 2014 UT App 40

¶72 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.30

CONCLUSION

¶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

Lawrence v. MountainStar Healthcare

20120352-CA 46 2014 UT App 40

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 cross-examination of

Dr. Eisendrath. Finally, the trial court was correct in denying

Shannon's motion for directed verdict and motion for judgment

notwithstanding the verdict because there was sufficient evidence

to support the verdict that Hospital's breach did not cause Shannon

any injury.

¶74 Affirmed.