Eskelson v. Davis Hospital and Medical Center, 2010 UT 15 (Utah 3/12/2010)

• Decision Date: 12 March 2010
• Docket Number: No. 20080484.,20080484.
• Citation: 2010 UT 15
• Parties: Lonnie Eskelson, on behalf of Jacob Eskelson, a minor, and Lavon Eskelson, Plaintiffs and Appellants, v. Davis Hospital and Medical Center and Jonathan Apfelbaum, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1

2010 UT 15

Lonnie Eskelson, on behalf of Jacob Eskelson, a minor, and Lavon Eskelson, Plaintiffs and Appellants, v. Davis Hospital and Medical Center and Jonathan Apfelbaum, Defendants and Appellees.

No. 20080484.

Supreme Court of Utah.

Filed March 12, 2010.

This opinion is subject to revision before final

publication in the Pacific Reporter

Appeal from the Second District, Layton Dep't The Honorable Thomas L. Kay, No. 060601362.

Dennis A. Gladwell, Lorraine P. Brown, Ogden, for plaintiffs

Robert G. Wright, Zachary E. Peterson, Cortney Kochevar, Salt Lake City, for defendants.

PARRISH, Justice:

INTRODUCTION

¶ 1 Lonnie Eskelson sued Dr. Jonathan Apfelbaum on behalf of his four-year-old son Jacob, alleging that Dr. Apfelbaum perforated Jacob's eardrum during an attempt to extract a bead lodged in Jacob's ear. Mr. Eskelson appeals the district court's decision excluding his expert's testimony and granting summary judgment in favor of Dr. Apfelbaum.

BACKGROUND

¶ 2 On May 24, 2004, Jacob Eskelson stuck a bead in his ear. His mother, Lavon Eskelson, took Jacob to Wee Care Pediatrics, where a nurse practitioner attempted to remove the bead with a saline flush and soft curette. When this failed, Mrs. Eskelson took Jacob to the emergency room at Davis Hospital and Medical Center where Dr. Apfelbaum unsuccessfully attempted to remove the bead with bayonet forceps and then with a soft curette. Because Jacob was becoming agitated during the procedures, Dr. Apfelbaum requested that Mrs. Eskelson restrain him. Mrs. Eskelson testified in her deposition that Jacob suffered intense pain during the procedures and that there was blood on the soft curette Dr. Apfelbaum used in attempting to extract the bead, both of which are signs of a perforated eardrum. The following day, Dr. Stoker, an ear nose and throat specialist, examined Jacob and discovered blood in his ear, but could not observe the tympanic membrane. Several days later, Dr. Stoker put Jacob under general anesthesia and removed the bead. At that time, he observed that Jacob's eardrum had been perforated.

¶ 3 Mr. Eskelson sought to introduce expert testimony from Dr. Kim Bateman to establish that Dr. Apfelbaum departed from the standard of care in three ways. First, before Dr. Apfelbaum's final attempt to remove the bead—the attempt that allegedly perforated Jacob's eardrum—he should have informed Mrs. Eskelson of the potential consequences of attempted extraction. Second, Dr. Apfelbaum should have stopped the procedure when Jacob became agitated and difficult to control. Third, by continuing to attempt to extract the bead, Dr. Apfelbaum caused Jacob unnecessary pain.

¶ 4 Dr. Apfelbaum moved to strike Dr. Bateman's testimony on the grounds that it was purely speculative and that it failed to meet the requirements of Utah Rule of Evidence 702. Dr. Apfelbaum also moved for summary judgment arguing that if the court struck Dr. Bateman's testimony, Mr. Eskelson would be without the expert testimony necessary to establish medical malpractice. After a two and a half hour hearing, the district court granted the motion to strike, finding that Dr. Bateman's testimony did not comply with rule 702. Specifically, the district court found that Dr. Bateman's testimony was not based on any scientific, technical, or other specialized knowledge, that his testimony would not assist the trier of fact, and that his methods were not generally accepted by the relevant scientific community. The district court then granted summary judgment in favor of Dr. Apfelbaum because Mr. Eskelson had no expert to establish that Dr. Apfelbaum breached the applicable standard of care.

STANDARD OF REVIEW

¶ 5 "The trial court has wide discretion in determining the admissibility of expert testimony. . . ." State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794 (internal quotation marks omitted); see also State v. Gallegos, 2009 UT 42, ¶ 12, 220 P.3d 136 (applying abuse of discretion review to district court's exclusion of expert testimony on relevancy grounds). Accordingly, we disturb the district court's decision to strike expert testimony only when it "exceeds the limits of reasonability." Hollen, 2002 UT 35, ¶ 66 (quoting State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993)). Our review of the district court's exercise of its discretion "include[s] review to ensure that no mistakes of law affected a lower court's use of its discretion." State v. Barrett, 2005 UT 88, ¶ 17, 127 P.3d 682. Thus, if the district court erred in interpreting Utah Rule of Evidence 702 when it granted Dr. Apfelbaum's motion to strike, it did not act within the limits of reasonability, and we will not defer to its evidentiary decision. See Carbaugh v. Asbestos Corp., 2007 UT 65, ¶ 7, 167 P.3d 1063 (finding an abuse of the district court's discretion when an evidentiary decision was based on an erroneous interpretation of the law).

¶ 6 "We review a district court's decision to grant summary judgment for correctness, granting no deference to the district court's conclusions, and we view the facts and all reasonable inferences in the light most favorable to the nonmoving party." Bodell Const. Co. v. Robbins, 2009 UT 52, ¶ 16, 215 P.3d 933.

ANALYSIS

¶ 7 The district court excluded Dr. Bateman's testimony under rule 702 of the Utah Rules of Evidence. Dr. Apfelbaum did not dispute that Dr. Bateman passed the initial qualification threshold under rule 702(a), and thus we assume that Dr. Bateman possessed the requisite "knowledge, skill, experience, training, or education." Under rule 702(b), the district court was required to determine if the specialized knowledge that formed the basis of Dr. Bateman's opinion was "reliable, . . . based upon sufficient facts or data," and was "reliably applied to the facts of the case." The district court found that Dr. Bateman's testimony was not based on sufficient facts or data and therefore his specialized knowledge could not be reliably applied to the facts of the case. Additionally, the district court found that Dr. Bateman's testimony would not assist the trier of fact because "[u]nsupportable expert testimony is not helpful to the jury." After striking Dr. Bateman's testimony, the district court then granted Dr. Apfelbaum's motion for summary judgment on the grounds that Mr. Eskelson could not present a prima facie case of medical malpractice without expert testimony.¹ Thus, if the district court improperly excluded Dr. Bateman's expert testimony, it erred in granting Dr. Apfelbaum's motion for summary judgment.

¶ 8 We consider first whether Dr. Bateman based his testimony on reliable scientific, technical, or other specialized knowledge. We then consider whether Dr. Bateman supported his testimony with sufficient facts. Finally, after determining that the district court erred in excluding the testimony under Utah Rule of Evidence 702(b), we consider whether the court properly struck Dr. Bateman's testimony under rule 702(a) when it found that because the testimony was "unsupportable," it would not assist the trier of fact.

I. THE DISTRICT COURT INTERPRETED RULE 702 INCORRECTLY IN HOLDING THAT DR. BATEMAN'S TESTIMONY DID NOT APPLY SCIENTIFIC KNOWLEDGE

¶ 9 Rule 702, as amended in 2007, requires the court to consider several factors in determining whether to admit expert testimony.² Rule 702(a) requires the court to consider whether expert testimony is necessary to assist the trier of fact and whether the proposed expert has the necessary "knowledge, skill, experience, training, or education" to provide such assistance to the trier of fact. After determining that the expert is so qualified, the court then turns to the reliability of the "scientific, technical, or other specialized knowledge" that serves as the basis for the expert's testimony. Utah R. Evid. 702(b).

¶ 10 Prior to the 2007 amendment, rule 702 consisted only of subsection (a) with the first phrase omitted. Under that version of rule 702, the standard for determining the admissibility of technical or scientific expert testimony was that announced in State v. Rimmasch. 775 P.2d 388, (Utah 1989). The Rimmasch standard first required the court to determine whether the party had met its threshold burden by examining

the correctness of the scientific principles underlying the testimony, the accuracy and reliability of the techniques utilized in applying the principles to the subject matter before the court and in reaching the conclusion expressed in the opinion, and the qualifications of those actually gathering the data and analyzing it.

Id. at 403. Rimmasch then required that the court determine whether "the scientific principles or techniques [had] been properly applied to the facts of the particular case by qualified persons and [whether] the testimony [was] founded on that work." Id. at 398 n.7. Third, the Rimmasch standard required a determination that the scientific evidence was more probative than prejudicial as specified by rule 403 of the Utah Rules of Evidence. Id. at 398 n.8.

¶ 11 In amending rule 702, this court did not intend to make it more difficult to admit expert testimony, but rather to clarify the requirements for admission. Aspects of the Rimmasch test continue to be applicable under amended rule 702. For example, rule 702(b), like Rimmasch, requires a determination of whether a party has met its threshold burden to show the reliability of the principles that form the basis for the expert's testimony and the reliability of applying those principles to the facts of the case. And, similar to the Rimmasch standard, rule 702(c) allows the court to take judicial notice of principles that have been accepted by the relevant expert community.

¶ 12 The advisory committee notes make clear that the new rule 702 "assigns to trial judges a `gatekeeper' responsibility to screen out unreliable expert testimony"—not just scientific expert testimony. Utah R. Evid. 702 advisory committee's note, ¶ 3. When applying the...