Taylor v. Univ. of Utah

• Decision Date: 08 May 2020
• Docket Number: No. 20190127,20190127
• Parties: Richard TAYLOR and Deanne Taylor, Petitioners, v. UNIVERSITY OF UTAH, University Hospital, and University of Utah Physical Medicine and Rehabilitation Clinic, Respondents.
• Court: Utah Supreme Court

466 P.3d 124

Richard TAYLOR and Deanne Taylor, Petitioners,

v.UNIVERSITY OF UTAH, University Hospital, and University of Utah Physical Medicine and Rehabilitation Clinic, Respondents.

No. 20190127

Supreme Court of Utah.

Heard January 13, 2020

Filed May 8, 2020

James W. McConkie, Bradley H. Parker, W. Alexander Evans, Salt Lake City, for petitioners

Curtis J. Drake, Parker A. Allred, Salt Lake City, for respondents

Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Justice Petersen joined.

On Certiorari to the Utah Court of Appeals

Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 Utah Rule of Evidence 702 requires district courts to exclude expert testimony that fails to satisfy any one of several threshold requirements. These requirements include "a threshold showing that the principles or methods that are underlying in the testimony ... are based upon sufficient facts or data." UTAH R. EVID. 702(b)(2). We are asked whether such a threshold showing is present where a method of logical deduction is based upon broad and attenuated facts. We hold that it is not.

BACKGROUND¹

¶2 Richard and Deanne Taylor's daughter, Ashley, was diagnosed at a young age with a neurological disorder

that caused her to suffer from spasticity. To control this effect, Ashley received baclofen² through a catheter and an implanted baclofen pump that delivered it into the thecal sac around her spinal cord.

¶3 On April 17, 2013, Ashley woke up suffering from severe shaking in her legs. She saw a physician at the University of Utah Hospital, where she received an oral dose of baclofen

. The physician performed several tests, gave Ashley more oral baclofen, and instructed her to return the next day. Although the following day's tests did not show an obvious sign of a problem, the physician thought there might still be a problem with the pump. During that period of time, Ashley kept vomiting and had difficulty keeping down oral doses of baclofen. After further consultation, the physician recommended surgery to replace the pump and the catheter connected to it. The surgery was performed the following day, April 19, 2013. Ashley's sister later agreed with the statement that Ashley was "back to herself" a day after the surgery.

¶4 Two to three weeks later, however, Ashley began exhibiting unusual behavioral symptoms. The Taylors consulted Dr. Judith Gooch, who had been Ashley's treating physician in the past. Dr. Gooch initially concluded that Ashley suffered from baclofen overdose

and completely stopped the administration of baclofen to Ashley. Later, Dr. Gooch concluded that Ashley's change in behavior was due to baclofen withdrawal—not an overdose as she had initially found. She further concluded that although Ashley had returned to a stable condition, she suffered, and still suffers, from permanent cognitive injuries.

¶5 The Taylors brought suit against the Hospital on Ashley's behalf. They alleged that the Hospital's treatment of Ashley's baclofen

withdrawal between April 17 and April 19, 2013, caused her permanent injuries.

¶6 The Taylors retained Dr. Gooch as a causation expert. The district court summarized Dr. Gooch's proximate cause theory as follows: "Baclofen

withdrawal caused a metabolic disturbance, which caused encephalopathy, which produced months-long hallucinations and other abnormal behavior, resulting in or causing permanent memory and cognitive function damage to [Ashley]."

¶7 After deposing Dr. Gooch, the Hospital filed a motion in limine to exclude her testimony. The Hospital argued that the testimony "should be barred under Rule 702 of the Utah Rules of Evidence because Dr. Gooch's opinion is not based upon sufficient facts or data." In its motion, the Hospital relied on Dr. Gooch's concession in her deposition that "there is not a single reported case of baclofen

withdrawal in which the patient remained stable throughout the episode and went on to suffer permanent neurological injury." Dr. Gooch also conceded that she had "never seen a patient experience the injuries that [Ashley] claims to have suffered."

¶8 The Taylors opposed the motion. With their memorandum, they attached a declaration from Dr. Gooch where she again conceded the facts mentioned by the Hospital but contended they were irrelevant. Dr. Gooch declared that her personal experience allowed her to logically deduce that baclofen

withdrawal can cause encephalopathy with permanent injuries, although she had not witnessed such an occurrence, and could not point to it in the medical literature. Dr. Gooch further explained that she had performed a differential diagnosis to determine proximate cause.

¶9 The district court agreed with the Hospital and excluded Dr. Gooch's testimony. It concluded that "Dr. Gooch [did] not have facts and data sufficient upon which to base her opinions or to employ her method for evaluating the causal connection in this case," that "she present[ed] no medical information or reports supporting her position," and that "her personal experience" likewise failed to provide a basis for her testimony.

¶10 The Taylors appealed. In their appeal, they outlined a similar argument to the one they had made at the district court. The court of appeals was unpersuaded and affirmed. Taylor v. Univ. of Utah , 2019 UT App 14, ¶ 1, 438 P.3d 975. The court of appeals explained that although logical deduction was not per se an "unreliable method," in this case, Dr. Gooch lacked "sufficient facts and data to employ such a method." Id. ¶ 10 n.1 ; see also id. ¶ 16.

¶11 The Taylors petitioned for certiorari, which we granted. We exercise jurisdiction under Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶12 On certiorari, "we review the decision of the court of appeals and not that of the district court." State v. Hansen , 2002 UT 125, ¶ 25, 63 P.3d 650 (citation omitted) (internal quotation marks omitted). And "we review the decision of the court of appeals for correctness." Id. (citation omitted) (internal quotation marks omitted).

¶13 But "[t]he correctness of the court of appeals’ decision turns, in part, on whether it accurately reviewed the [district] court's decision under the appropriate standard of review." State v. Apodaca , 2019 UT 54, ¶ 25, 448 P.3d 1255 (citation omitted). In this case, the issue is the admission of evidence. "With regard to the admission of evidence, most decisions involve a threshold statement of the legal principle governing admission or exclusion, findings of facts pertinent to a determination, and the application of the legal principle to the facts at hand with regard to admissibility." Arnold v. Grigsby , 2018 UT 14, ¶ 9, 417 P.3d 606. "We review the legal questions to make the determination of admissibility for correctness." State v. Workman , 2005 UT 66, ¶ 10, 122 P.3d 639 (citation omitted). "We review the questions of fact for clear error." Id. (citation omitted). And finally, "we review the district court's ruling on admissibility for abuse of discretion." Id. (citation omitted).

ANALYSIS

¶14 We granted certiorari on the question of whether the court of appeals erred in affirming the district court's exclusion of Dr. Gooch's expert testimony. We find no error and, consequently, we affirm.

¶15 We hold that given the gaps between the facts Dr. Gooch relied on and her logical deduction, it was not an abuse of discretion for the district court to exclude her testimony. Further, we address two arguments the Taylors make. First, we reject their argument about our case law regarding Utah Rule of Evidence 702 and clarify that the district court and court of appeals properly applied it. Second, we refuse to consider a new argument the Taylors raise in their reply brief, offering differential diagnosis testimony from Dr. Gooch, because it was untimely made.

I. BECAUSE DR. GOOCH'S METHOD WAS NOT BASED ON SUFFICIENT FACTS OR DATA, THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING IT

¶16 Utah Rule of Evidence 702 "assigns to trial judges a ‘gatekeeper’ responsibility to screen out unreliable expert testimony." UTAH R. EVID. 702 advisory committee notes; see also State v. Lopez , 2018 UT 5, ¶ 20, 417 P.3d 116 ; Eskelson v. Davis Hosp. & Med. Ctr. , 2010 UT 59, ¶ 12, 242 P.3d 762. The applicable standard of review for a decision about admissibility, abuse of discretion, reflects the respect we have for a district court's determination in these preliminary issues. See State v. Jones , 2015 UT 19, ¶ 12, 345 P.3d 1195 ; State v. Workman , 2005 UT 66, ¶ 10, 122 P.3d 639.

¶17 The rule provides trial judges the framework to fulfill this assignment. Relevant to this case are subsections (b) and (c). Subsection (b) requires the party seeking admission of the expert testimony to make a "threshold showing that the principles or methods that are underlying in the testimony" are "reliable," "based upon sufficient facts or data," and "have been reliably applied to the facts." UTAH R. EVID. 702(b). Subsection (c) allows satisfaction of subsection (b)’s "threshold showing" if the "underlying principles or methods, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community." Id. 702(c).

¶18 The parties dispute whether the principles or methods underlying Dr. Gooch's expert testimony are based on sufficient facts or data, and whether these facts or data are generally accepted by the relevant expert community as a sufficient basis for the principles or methods underlying her testimony. They are not. The analytical gaps between the facts used as "principles" in Dr. Gooch's opinion and her proximate cause logical deduction from them are too great to be sustained. In other words, the method Dr. Gooch used—logical deduction—is not based on sufficient facts or data. Given these gaps, it cannot be said, and there is no showing, that the relevant expert community generally...