Hallett v. Tully

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2024 UT App 90
THE UTAH COURT OF APPEALS

                         RANDIE HALLETT,
                            Appellant,
                                v.
                           JOHN TULLY,
                            Appellee.

                             Opinion
                        No. 20230364-CA
                        Filed June 21, 2024

           Fifth District Court, St. George Department
                  The Honorable Gary D. Stott
                           No. 160500601

             Kevin K. Robson and Jennifer R. Johnson,
                     Attorneys for Appellant
           Christian W. Nelson, Brandon B. Hobbs, and
          Aaron T. Cunningham, Attorneys for Appellee

    JUDGE GREGORY K. ORME authored this Opinion, in which
    JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

ORME, Judge:

¶1      After Randie Hallett presented her case-in-chief against
John Tully in this medical negligence matter, the trial court
granted Tully’s motion for judgment as a matter of law. In this
appeal, Hallett asks this court to reverse several decisions of the
trial court. In addition to the grant of judgment as a matter of law,
Hallett also challenges the trial court’s rulings excluding the
testimony of Hallett’s causation expert and limiting the testimony
of a fact witness. As to the expert, the trial court concluded that
Hallett did not make a threshold showing of reliability regarding
the expert’s opinions on whether her neurological recovery was
adversely affected by a delay in the diagnosis and treatment of
Hallett’s medical condition. Because any concerns with the
                          Hallett v. Tully


expert’s causation opinion relate to its weight, not its reliability,
we reverse and remand the matter for a new trial. But we affirm
the limitations placed on the testimony of the fact witness
insofar as she was attempting to offer inadmissible opinion
testimony.


                         BACKGROUND

¶2     On November 25, 2015, Hallett fell ill while on a trip with
friends. She was transported by ambulance to the emergency
department at Dixie Regional Medical Center, arriving at
approximately 8:00 a.m. The EMS note described Hallett’s
symptoms as dizziness, fainting, slurred speech, confusion, and
numbness of the lip and left hand. The triage notes prepared by
the nurse who assessed Hallett when she arrived at the hospital
mentioned left-sided weakness and numbness, a fainting episode
with nausea, and an altered level of consciousness.

¶3     While in the emergency room, Hallett was seen by Tully, a
physician assistant working at the hospital on a contract basis
rather than as an employee of the hospital. Tully ordered a
non-contrast CT scan for Hallett at approximately 8:30 a.m. After
reviewing the CT scan and speaking with Hallett, Tully diagnosed
her with vertigo, gave her the drug Ativan, and discharged her at
11:24 a.m. The friends with whom she was traveling picked
Hallett up from the hospital.

¶4     When Hallett’s condition worsened later that day, her
friends drove her back to the hospital. During her second
hospitalization, a CT angiogram revealed a blood clot in
Hallett’s basilar artery and an MRI showed that she had suffered
a stroke. At approximately 2:30 a.m. on November 26th, a
neurosurgeon at the hospital performed a thrombectomy and
removed the clot from Hallett’s brain. Hallett alleges that she
suffered neurological injuries as a result of the delay in
performing that procedure.



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¶5    Hallett thereafter brought a medical negligence action
against Tully and other individuals involved in her care at the
hospital. Only the claims against Tully are at issue in this appeal. 1
                                                                     0F




¶6      Intending to rely on expert testimony at trial, Hallett
submitted a disclosure pursuant to rule 26(a)(4)(A) of the Utah
Rules of Civil Procedure, identifying Dr. Arthur Kowell as a
retained expert witness. According to the disclosure, Hallett
anticipated that Dr. Kowell, a board-certified neurologist and a
clinical professor in neurology at UCLA, would testify on issues
of causation and damages, including the “damages that were
caused by the delay in the diagnosis of Ms. Hallett’s stroke.”
Relevant to this appeal, it was expected that Dr. Kowell’s
testimony would include his opinion on “the damages caused by
the defendants’ negligence, including how [Hallett’s] condition
would have been different had the defendants complied with the
applicable standard of care and diagnosed her stroke in a timely
manner.”

¶7      Tully deposed Dr. Kowell in January 2020. When Dr.
Kowell was asked if he was able to separate the damages caused
by Hallett’s stroke from the damages related to the alleged delay
in diagnosis, he replied, “[I]f she had had earlier treatment, I think
it’s more likely than not, way more likely than not, way more
likely than 50 percent, that she would have little or no residual
neurologic deficits or problems.” According to Dr. Kowell, recent
literature “confirms” that the benefits of a thrombectomy are
“significant” and “had the thrombectomy been performed a lot
earlier in the course of the stroke development, . . . it’s medically
probable she would have little or no deficit neurologically at the
present time.” Dr. Kowell was then asked for his opinion on when
the thrombectomy should have been performed. He answered, “I




1. Hallett’s claims against all other defendants were dismissed on
the parties’ motions either before or during the trial.


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would say three to four hours . . . after she [first] got to the
emergency room.”

¶8      Dr. Kowell was questioned about the basis for his opinion
that the delay in performing the thrombectomy caused Hallett’s
neurologic injuries. He replied that his opinion was “[b]ased on
experience and the literature” but clarified that he was not relying
on “specific literature” and would not be pointing to any at trial.
As to the conclusions he drew from the literature, Dr. Kowell
testified, “There is a lot of literature about thrombectomies,
certainly in the last few years. But the fact that thrombectomy can
be considered as long as 24 hours after an event and get good
results, when you look at these studies, the ones of the patients
who get earlier intervention do better. A lot better.” According to
Dr. Kowell, he had reviewed “plenty of literature” over the years
that supported this opinion.

¶9      Tully also deposed Hallett’s friend (Friend) who was with
her when she suffered the stroke and accompanied her to the
hospital. Friend is a chiropractor, but Hallett designated her as a
fact witness. It was anticipated that Friend would “testify as to her
personal knowledge of matters relating to [the] case and as to the
losses . . . Hallett has suffered as a result of [the] incident.” During
her deposition, however, Friend offered opinions on the care
Hallett received during her initial hospital admission.
Specifically, she testified that she did not agree with Tully that
Hallett was suffering from vertigo, she told Tully she believed
Hallett “was having a vasovagal response based on her
symptoms,” and she disagreed with Tully’s decision to give
Hallett the drug Ativan.

¶10 Prior to the March 2023 trial, Tully filed several motions in
limine, only two of which are relevant to the issues raised by
Hallett in this appeal. In the first, Tully asked the trial court to
exclude Dr. Kowell’s causation opinions. Specifically, Tully
challenged Dr. Kowell’s opinion testimony on reliability grounds,
arguing that Dr. Kowell had not reliably applied scientific



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knowledge to the facts of the case. According to Tully, Dr.
Kowell’s testimony that Hallett’s neurological outcome would
have been better if the thrombectomy had been performed within
three to four hours after she first arrived at the hospital was
“without scientific basis.” In the second motion, Tully sought
limitations on Friend’s trial testimony, arguing that Friend did not
qualify as an expert witness and, thus, should not be permitted to
offer any opinions concerning the medical care Hallett received.

¶11 The trial court granted both motions. The court ruled that
Dr. Kowell was “precluded from offering opinions bearing on
liability, causation, and damages at trial.” The court’s order is
silent as to the basis for this ruling. Friend was “limited to fact
witness testimony at trial” and was “precluded from rendering
opinions that she disagreed with diagnoses, that [Hallett] was not
experiencing vertigo, that she disagreed with the interpretation of
the CT scan, the diagnosis of stroke, or any other expert opinions.”
Friend was also “precluded from testifying regarding any
discussion she had with any health care provider about
conclusions she drew or disagreements with their decisions,
analysis, or treatment based upon her training, experience,
education, or observations.”

¶12 The matter proceeded to trial. Neither Dr. Kowell nor
Friend testified. At the close of Hallett’s case, Tully moved for
judgment as a matter of law, arguing Hallett did not present
sufficient evidence from which a reasonable jury could conclude
that Tully’s alleged negligence was the actual and proximate
cause of her damages. The trial court granted the motion and
entered a final order dismissing the claims against Tully. Hallett
appeals.


            ISSUES AND STANDARDS OF REVIEW

¶13 Hallett raises three issues on appeal. She first asks this
court to reverse the grant of judgment as a matter of law in Tully’s



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favor, arguing that the evidence presented at trial was sufficient
to establish the causation element of her medical negligence claim.
“Appellate courts review the grant or denial of a motion for
judgment as a matter of law for correctness.” Pinney v. Carrera,
2019 UT App 12, ¶ 11
,
438 P.3d 902
(quotation simplified), aff’d,
2020 UT 43
,
469 P.3d 970
. “A trial court is justified in granting
[judgment as a matter of law] only if, examining all evidence in a
light most favorable to the non-moving party, there is no
competent evidence that would support a verdict in the
non-moving party’s favor.” Gables at Sterling Village Homeowners
Ass’n v. Castlewood-Sterling Village I, LLC,
2018 UT 4, ¶ 21
,
417 P.3d
95
(quotation simplified).

¶14 Hallett also challenges the grant of Tully’s motions in
limine that resulted in the exclusion of Dr. Kowell’s expert
testimony and limitations on Friend’s testimony. “A trial court’s
exclusion of expert testimony is reviewed for an abuse of
discretion and is reversed if it exceeds the limits of reasonability.”
State v. Clopten,
2009 UT 84, ¶ 6
,
223 P.3d 1103
(quotation
simplified). We also “review decisions relating to the qualification
of a witness as an expert or as a lay witness for an abuse of
discretion.” State v. Rothlisberger,
2004 UT App 226, ¶ 9
,
95 P.3d
1193
, aff’d,
2006 UT 49
,
147 P.3d 1176
.


                            ANALYSIS

¶15 We turn first to Hallett’s argument that Dr. Kowell’s expert
testimony was wrongfully excluded because our resolution of the
argument is dispositive of this appeal. Hallett argues that Tully’s
challenges to Dr. Kowell’s causation opinion are an attack on the
weight of that evidence rather than its admissibility. We agree.

¶16 The Utah Rules of Evidence permit opinion testimony from
“a witness who is qualified as an expert by knowledge, skill,
experience, training, or education” so long as such testimony will
“help the trier of fact to understand the evidence or to determine



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a fact in issue.” Utah R. Evid. 702(a). In his motion in limine, Tully
did not dispute that Dr. Kowell possesses the required
knowledge, skill, experience, training, or education to form an
opinion as to causation. 2 Nor did Tully argue that Dr. Kowell’s
                          1F




causation testimony would not assist the trier of fact. We thus
focus our review on rule 702(b), which states that a qualified
expert may give opinion testimony “only if there is a threshold
showing that the principles or methods that are underlying in the
testimony (1) are reliable, (2) are based upon sufficient facts or
data, and (3) have been reliably applied to the facts.”
Id.
R. 702(b).

¶17 It is well settled that rule 702(b) “require[s] the plaintiff to
make only a threshold showing of reliability.” Eskelson ex rel.
Eskelson v. Davis Hosp. & Med. Center,
2010 UT 59, ¶ 12
,
242 P.3d
762
(quotation simplified). “This threshold is not so rigorous as to
be satisfied only by methodology or data that are free of
controversy.” California College Inc. v. UCN Inc.,
2019 UT App 39,
¶ 22
,
440 P.3d 825
(quotation simplified). Thus, even if data or
studies are debatable, a qualified medical expert may rely on his
or her interpretation of that information to arrive at an opinion.
See
id.
The expert, however, “cannot give opinion testimony that
flies in the face of uncontroverted facts or data.”
Id.
(quotation
simplified).

¶18 Here, Tully argued in his motion in limine that the studies
on which Dr. Kowell based his causation opinion do not support
his conclusions. Specifically, Tully represented to the trial court
that the “scientific data upon which” Dr. Kowell relied “does not


2. Tully did, however, argue that Dr. Kowell did not possess the
requisite knowledge, skill, experience, training, or education to
offer opinions regarding Hallett’s psychological and emotional
injuries. The trial court’s order does not expressly discuss this or
any other argument made by Tully in his motion. Even assuming
the trial court’s ruling prohibited Dr. Kowell from testifying as to
Hallett’s psychological and emotional injuries, Hallett does not
challenge that implied ruling on appeal, so we do not reach it.


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differentiate outcomes with treatment at three to four hours
versus at 24 hours after onset of symptoms.” But Tully does not
point to any record evidence supporting this statement, and the
trial court’s order contains no factual finding on this point.

¶19 Even if Tully could support the representations made, i.e.,
that Dr. Kowell relied on studies that do not specifically
distinguish outcomes among stroke patients who receive a
thrombectomy at any time within a twenty-four-hour period, that
would not result in the exclusion of Dr. Kowell’s causation
testimony. Dr. Kowell, a board-certified neurologist with more
than forty years’ experience, testified that patients who receive
thrombectomies within twenty-four hours have “good results”
but “patients who get earlier intervention do . . . [a] lot better.”
This opinion was based on his experience as a neurologist and his
interpretation of “plenty of literature.” Thus, Hallett satisfied her
initial burden of making a threshold showing of reliability. See
Eskelson,
2010 UT 59, ¶ 12
. In a situation like that presented here,
unless Tully can point to uncontroverted data showing that
patients who receive thrombectomies at any time within a
twenty-four-hour period have identical outcomes, he cannot
successfully challenge the admissibility of Dr. Kowell’s causation
opinion on reliability grounds. See California College,
2019 UT App
39, ¶ 22
(stating that unreliable testimony is that which “flies in
the face of uncontroverted facts or data”) (quotation simplified).

¶20 Dr. Kowell’s opinion testimony on causation was wrongly
excluded because Hallett made a threshold showing that the
testimony is reliable, and Tully has not demonstrated that the
facts or data on which Dr. Kowell relied are irrelevant or
demonstrably incorrect. 3 Tully’s arguments, correctly viewed, are
                         2F




3. When exercising their gatekeeping responsibilities under rule
702(b), trial courts should be wary of challenges to the reliability
of opinions offered by medical professionals who are qualified to
give expert testimony. The purpose of rule 702(b) is to weed out
                                                    (continued…)


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directed at the weight of Dr. Kowell’s testimony, not its
admissibility. Tully can use the studies he alludes to in his motion
in limine to challenge the conclusions Dr. Kowell drew from his
experience and the literature, but that challenge must be made at
trial via cross-examination.

¶21 Because the trial court exceeded the sound exercise of its
discretion in excluding Dr. Kowell’s testimony, Hallett is entitled
to a new trial. The entire basis for the court’s grant of judgment as
a matter of law to Tully was that, in the court’s view, Hallett did
not present sufficient evidence from which a reasonable jury
could conclude that Tully’s alleged negligence was the actual and
proximate cause of her damages. But with Dr. Kowell’s testimony
in evidence, Hallett would have sufficient support for her
assertion that Tully’s negligence caused her to sustain damages.
We, therefore, not only reverse the grant of Tully’s motion in
limine as to Dr. Kowell’s causation opinion but also reverse the
grant of judgment as a matter of law in Tully’s favor. Accordingly,
it is unnecessary to address Hallett’s fallback argument that the
evidence she presented at trial was sufficient to prove the
causation element of her medical negligence claim even without
Dr. Kowell’s testimony.

¶22 Because Hallett is entitled to a new trial, we also consider
whether the trial court abused its discretion in limiting Friend’s
testimony as that question may arise again. See State v. Ogden,
2018
UT 8, ¶ 49
,
416 P.3d 1132
(“Although it is unnecessary to our


expert opinions grounded in facts or data categorically proved to
be incorrect—not medical opinions that are reasonably debatable.
See Utah R. Evid. 702 advisory committee note (stating that rule
702(b) “is broad enough to permit testimony that is the product of
competing principles or methods in the same field of expertise”).
“Rule 702’s threshold showing requires only a basic foundational
showing of indicia of reliability for the testimony to be admissible,
not that the opinion is indisputably correct.” State v. Woodard,
2014
UT App 162, ¶ 23
,
330 P.3d 1283
(quotation simplified).


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Hallett v. Tully


decision, we retain the authority to reach issues when we believe
our analysis could prove helpful on remand.”). Friend was
disclosed as a fact witness, not an expert witness. Yet during her
deposition, Friend offered opinions regarding Hallett’s initial
diagnosis and the care Hallett received during her initial
hospitalization. Friend also testified that she expressed these
opinions to Tully. When the trial court granted Tully’s motion in
limine as to Friend’s testimony, it precluded Friend from
testifying about “any discussion she had with any health care
provider about conclusions she drew or disagreements with their
decisions, analysis, or treatment based upon her training,
experience, education, or observations.”

¶23 Although Hallett interprets the trial court’s limitations on
Friend’s testimony as prohibiting Friend from testifying about her
“personal knowledge of [Hallett’s] symptoms based on her
observations,” Friend’s testimony was not so limited. Friend was
free to testify about her observations; the limitations imposed by
the trial court only prohibited her from testifying about any
opinions or conclusions she drew from those observations and
any conversations she had with Hallett’s care team during which
she expressed such opinions or conclusions. But Hallett also
argues that the trial court abused its discretion in so limiting
Friend’s testimony.

¶24 In her principal brief, Hallett contends that Friend “would
simply be providing testimony about her observations as a
percipient eyewitness to [Hallett’s] stroke symptoms and the
treatment or lack thereof, that [Hallett] received at [the hospital]
and of conversations that [Friend] had at that time.” But in her
memorandum opposing Tully’s motion in limine, Hallett asserted
Friend should be permitted to testify regarding statements she
made to Tully that were based on Friend’s “personal knowledge
of vertigo symptoms having herself treated patients for that
medical condition in her chiropractic practice.” It is noteworthy,
however, that Hallett expressly concedes in her principal brief
that Friend is not qualified to offer expert opinions on the



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Hallett v. Tully


standard of care for stroke patients. And a review of Friend’s
deposition testimony shows that the conversations between
Friend and Tully involved that very topic.

¶25 By arguing that Friend should be permitted to testify about
conversations she had with Tully concerning Hallett’s diagnosis
and treatment, Hallett is attempting to use those conversations as
a backdoor means of introducing opinion testimony that does not
meet the requirements of rule 702. Because Friend is not a
qualified expert, her opinion on the standard of care for stroke
patients is inadmissible under rule 702. Accordingly, the trial
court did not abuse its discretion in prohibiting Friend from
testifying about her opinions on Hallett’s diagnosis or treatment,
either through direct testimony or by recounting conversations
she had with Tully during which Friend expressed her
disagreements or opinions. 43F




4. Attempting to avoid this result, Hallett argues that Friend’s
opinion testimony is permissible under rule 701 of the Utah Rules
of Evidence. Hallett did not rely on rule 701 before the trial court,
but we briefly address her appellate argument because it is clear
Friend’s testimony does not comply with the rule. State v. Kitches,
2021 UT App 24, ¶ 28
,
484 P.3d 415
(“If the merits of a claim can
easily be resolved in favor of the party asserting that the claim was
not preserved, we readily may opt to do so without addressing
preservation.”) (quotation simplified), cert. denied,
496 P.3d 718
(Utah 2021). Rule 701 permits opinion testimony by a lay witness
if the testimony is “(a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Utah R. Evid. 701. Friend’s testimony about
her conversations with Tully is not admissible under rule 701
because, as we have concluded, the substance of those
conversations goes to the standard of care for stroke patients, and
                                                       (continued…)


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                         CONCLUSION

¶26 The trial court did not abuse its discretion when it limited
the testimony of Friend, a fact witness, insofar as it might concern
her opinions on the standard of care. But, under the circumstances
present in this case, the court abused its discretion when it
precluded Hallett’s medical expert, Dr. Kowell, from offering his
opinion on causation, and it therefore also erred by granting
Tully’s motion for judgment as a matter of law. Accordingly, we
reverse the court’s order dismissing Hallett’s claims and remand
the matter for a new trial.




rule 701 expressly prohibits testimony “based on scientific,
technical, or other specialized knowledge within the scope of Rule
702.”
Id.
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