2015 UT App 280

THE UTAH COURT OF APPEALS

SINDA LYNN KERBY AND ELLESA E. DAY,

Appellants,

v.

MOAB VALLEY HEALTHCARE, INC.,

Appellee.

Opinion

No. 20131172-CA

Filed November 19, 2015

Seventh District Court, Moab Department

The Honorable Lyle R. Anderson

No. 090700112

Robert D. Strieper, Attorney for Appellants

Robert L. Janicki and Michael L. Ford, Attorneys for

Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES JOHN A. PEARCE and KATE A. TOOMEY concurred.

ORME, Judge:

¶1 A patient died following a medical procedure performed 

at Allen Memorial Hospital in Moab. Her daughter and her 

mother (Plaintiffs) filed suit against Moab Valley Healthcare, Inc. 

(Allen Memorial), which operated Allen Memorial Hospital, for 

medical malpractice. Plaintiffs filed a motion for partial 

summary judgment and what they characterized as a renewed 

motion for partial summary judgment on the issue of causation, 

both of which the trial court denied. Following trial, the jury 

found that nurses employed by Allen Memorial breached the 

standard of care by discharging the patient while she was still 

under the influence of drugs that she had received during her 

hospitalization but that the breach did not cause her death. 

Plaintiffs appeal.
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¶2 Plaintiffs contend that the trial court erroneously denied 

their motions for partial summary judgment and that the court 

erroneously permitted prejudicial evidence regarding the 

incarceration of the patient’s son. We affirm.

BACKGROUND

¶3 In 2007, the patient underwent an esophagoscopy and a 

bronchoscopy at Allen Memorial Hospital in Moab, Utah. 

During the procedure, a doctor removed a ‚fair amount‛ of 

mucus from her lungs. Afterward, during her three-hour stay at 

Allen Memorial Hospital, the patient received 30 mg of 

morphine, 25 mg of Valium, 4 mg of Zofran, 2 mg of Dilaudid, 5 

mg of Versed, 50 mg of fentanyl, and, just before she was 

wheeled out to her car, 12.5 mg of promethazine. When the 

patient was discharged, several nurses observed that she was 

drowsy, unable to understand instructions, and acting drunk 

and incoherent. One of the nurses later testified that she had to 

remind the patient several times to take deep breaths. 

¶4 The patient’s ex-husband drove her to her home from the 

hospital and helped her to bed. The last time anyone saw the 

patient alive was when her daughter went into the patient’s

bedroom around 11:00 p.m. that night. Around 4:00 a.m., the 

patient’s ex-husband found her dead. The medical examiner 

determined her cause of death to be the ‚combined effects of 

asthma, chronic bronchitis, drug toxicity (morphine and 

promethazine) and obesity.‛ 

¶5 In 2009, Plaintiffs filed a complaint against Allen 

Memorial alleging medical malpractice for the wrongful death of 

the patient. Thereafter, Plaintiffs filed a motion for partial 

summary judgment on the issue of causation. Plaintiffs 

contended that the nurses at Allen Memorial Hospital ‚breached 

the standard of care by discharging a pharmaceutically 

inebriated patient . . . from same day surgery prematurely and 
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that she should have been admitted for overnight observation.‛ 

They further contended that ‚if [the patient] had not been 

discharged from Allen Memorial and had been fully recovered 

from her anesthesia before she was discharged, she would not 

have died.‛ In support of their motion, Plaintiffs relied on the 

deposition testimony of Allen Memorial’s causation expert, a 

toxicologist, who testified at one point during his deposition that 

although it was outside the scope of his expertise, ‚being a 

physician, [he] would generally have to answer that it’s more 

likely that [the patient] would have survived in the hospital.‛ 

¶6 The trial court denied Plaintiffs’ first motion for partial 

summary judgment. During a hearing on the motion, there was 

some discussion by Plaintiffs’ counsel regarding the 

‚astronomical‛ level of promethazine recorded on the autopsy 

report, which ‚could not be accounted for by the one dose 

charted in *the patient’s+ record.‛ Allen Memorial’s counsel 

observed that Plaintiffs’ motion was ‚a hundred percent 

focused‛ on whether the patient received too much 

promethazine and that the issue was not whether the 

promethazine caused her death but, as the trial court put it,

‚whether, if she hadn’t been discharged, she would have 

survived.‛ The trial court considered whether Plaintiffs were 

confusing but-for causation with proximate cause and observed 

that the issue was ‚whether the hospital should have foreseen 

that their discharging [the patient] would have caused this 

result.‛ The court ultimately denied Plaintiffs’ motion, the judge 

stating, ‚I don’t think someone overdosing by medication they 

get by extra-legal means is something that the hospital can 

foresee. There may be some other reasons, but I should deny the 

motion on that ground alone. So, I’m denying that motion for 

partial summary judgment.‛1

 

1. During the same hearing, the trial court addressed Plaintiffs’ 

motion to strike Allen Memorial’s attempt to allocate fault to 

(continued...)
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¶7 Subsequently, the parties took an additional deposition to 

help them understand the discrepancy between the amounts of 

promethazine recorded in the patient’s medical record and in 

her autopsy report. Based on that deposition, Plaintiffs filed their

renewed motion for summary judgment on the issue of 

causation. At a hearing on that motion, the following colloquy 

ensued: 

[Trial court]: Even the stuff you cited, the guy said, 

I don’t know. Obviously, she would have been 

more likely to have lived, but more likely doesn’t 

mean it makes a difference between living and not 

living. So, where do you have evidence that I must 

determine, as a matter of law, that had she stayed 

in the hospital, she wouldn’t have died?

[Plaintiffs’ counsel]: Because she would have been 

able to be monitored. She would have been kept 

alive and the evidence is—I mean, even though he 

says she may have, more likely than not, that’s the 

standard.

 

(...continued)

Plaintiffs based on the high level of promethazine recorded on 

the autopsy report. There was only one 12.5 mg dose of 

promethazine recorded in the patient’s medical record, which 

could not account for the high level of promethazine found in 

her blood stream during her autopsy. Plaintiffs contended that 

the patient had access to promethazine only at Allen Memorial 

Hospital and that the hospital must have given her more 

promethazine than it recorded in her chart. Allen Memorial 

contended that the patient somehow acquired and selfadministered promethazine after she was discharged from the 

hospital. The trial court concluded that the question of where the 

patient received or obtained the promethazine was a jury issue. 
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20131172-CA 5 2015 UT App 280

[Trial court]: He didn’t say that. He said she was 

more likely to live being in the hospital than not 

being in the hospital. So, maybe, the chances go up 

from five to ten, from ten to twenty, maybe they go 

from forty-five to fifty-five. I don’t know and he 

didn’t know. 

The court then denied Plaintiffs’ renewed motion for partial 

summary judgment on the ground that material facts were in 

dispute.

¶8 Additionally, before trial, the patient’s son, who had been 

incarcerated during the last years of her life, disclaimed any 

interest in the case and any right to claim proceeds from the case. 

As a result, on the first day of trial, Plaintiffs asked the trial court

to disallow any mention of the son because ‚any discussion 

about [him] would be prejudicial, a waste of time, a waste of 

judicial resources and his relationship with [the patient] is not at 

issue in this case.‛ The trial court denied Plaintiffs’ request, 

stating that the son was

one of the heirs and the difference between heirs, 

under the Probate Code, and heirs under the 

personal injury code is something I learned about 

early in my career. . . . I don’t think you can carve 

one person out of a family, as a matter of law, just 

because he doesn’t want anything and determine 

that anything about his relationship is completely 

irrelevant to the evaluation of all of the other 

relationships that exist in the family.

Thereafter, during the trial, one of the patient’s daughters 

testified that the patient never visited the son while he was in 

prison. 

¶9 The jury determined that Allen Memorial breached the 

standard of care but that the breach did not cause the patient’s
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death. As a result, the jury awarded nothing to Plaintiffs, and 

they now appeal. 

ISSUES AND STANDARDS OF REVIEW

¶10 First, Plaintiffs contend that the trial court erroneously 

denied their motion for partial summary judgment and their 

renewed motion for partial summary judgment. Summary 

judgment is appropriate when ‚there is no genuine dispute as to 

any material fact and the moving party is entitled to judgment as 

a matter of law.‛ Utah R. Civ. P. 56(a). We ‚review[] a trial 

court’s legal conclusions and ultimate grant or denial of 

summary judgment for correctness and view[] the facts and all 

reasonable inferences drawn therefrom in the light most 

favorable to the nonmoving party.‛ Bingham v. Roosevelt City 

Corp., 2010 UT 37, ¶ 10, 235 P.3d 730 (citation and internal 

quotation marks omitted). 

¶11 Second, Plaintiffs contend that the trial court erroneously 

permitted ‚irrelevant and unfairly prejudicial‛ evidence of the 

son’s incarceration in violation of rule 403 of the Utah Rules of 

Evidence. ‚We review a trial court’s decision to admit or exclude 

evidence under Rule 403 of the Utah Rules of Evidence under an 

abuse of discretion standard, and will not overturn a lower 

court’s determination of admissibility unless it is beyond the 

limits of reasonability.‛ Diversified Holdings, LC v. Turner, 2002 

UT 129, ¶ 6, 63 P.3d 686 (citation and internal quotation marks 

omitted). ‚Additionally, ‘*e+ven if the evidence was erroneously 

admitted, that fact alone is insufficient to set aside a verdict 

unless it has had a substantial influence in bringing about the 

verdict.’‛ Glacier Land Co. v. Claudia Klawe & Assocs., 2006 UT 

App 516, ¶ 12, 154 P.3d 852 (alteration in original) (quoting State 

v. Bluff, 2002 UT 66, ¶ 47, 52 P.3d 1210). See also Utah R. Evid. 

103(a) (providing that an erroneous ruling requires reversal 

‚only if the error affects a substantial right of the party‛ claiming 

error).
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20131172-CA 7 2015 UT App 280

ANALYSIS

I. Motions for Summary Judgment on Causation

¶12 Plaintiffs argue that the trial court erred when it denied 

their motions for partial summary judgment on the question of 

causation. According to Plaintiffs, ‚*t+he issue regarding 

causation should never have gone to the jury‛ because ‚*t+he 

issue regarding causation and whether or not [the patient]

would have survived on June 20, 2007 if she had been admitted 

to Allen Memorial Hospital was undisputed.‛2 Plaintiffs contend 

that ‚*t+here was absolutely no evidence presented that if [the 

patient] had been hospitalized she would have died or that she 

would more likely than not have died.‛3

¶13 ‚To sustain a medical malpractice action, a plaintiff must 

demonstrate ‘(1) the standard of care by which the [medical 

professional’s] conduct is to be measured, (2) breach of that 

 

2. In their briefing, Plaintiffs repeatedly assert that it was also 

undisputed that the patient died from the ‚combined effects of 

asthma, chronic bronchitis, drug toxicity (morphine and 

promethazine) and obesity.‛ However, Plaintiffs concede that 

‚*t+he standard of care *they+ alleged was breached was not that 

[the patient] received too many medications or that she should 

not have received the medications, but that she should not have 

been discharged from the hospital.‛ Thus, according to Plaintiffs, 

‚although it is informative to know what the process of her 

death was, the real issue on causation was whether or not [the 

patient] would have lived if she had been admitted to the 

hospital.‛ 

3. We note that the relevant inquiry was not whether the patient 

would have died if she had been kept in the hospital but whether 

she would have lived if she had been kept in the hospital, as 

Plaintiffs contend she should have been. 
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standard by the [professional], (3) injury that was proximately 

caused by the *professional’s+ negligence, and (4) damages.’‛ 

Sohm v. Dixie Eye Ctr., 2007 UT App 235, ¶ 15, 166 P.3d 614 

(alterations in original) (quoting Jensen v. IHC Hosps., Inc., 2003 

UT 51, ¶ 96, 82 P.3d 1076). As to the third element of a medical 

malpractice claim, ‚*p+roximate cause is ‘[t]hat cause which in 

natural and continuous sequence, unbroken by an efficient 

intervening cause, produces the injury and without which the 

result would not have occurred.’‛ Harline v. Barker, 854 P.2d 595, 

600 (Utah Ct. App. 1993) (second alteration in original) (quoting 

Butterfield v. Okubo, 831 P.2d 97, 106 (Utah 1992)). In a medical 

malpractice case, ‚the plaintiff is required to prove the standard 

of care and proximate cause through expert testimony.‛ Sohm, 

2007 UT App 235, ¶ 15.

¶14 ‚Generally, causation cannot be resolved as a matter of 

law‛ because it is a ‚highly fact-sensitive element of any cause of 

action.‛ Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1292 

(Utah Ct. App. 1996) (citation and internal quotation marks 

omitted). See also Harline, 854 P.2d at 600 (‚Proximate cause is an 

issue of fact.‛). Indeed, Utah courts have recognized that ‚*f+actsensitive cases . . . do not lend themselves to a determination on 

summary judgment.‛ Draper City v. Estate of Bernardo, 888 P.2d 

1097, 1101 (Utah 1995). On the other hand, Utah courts have also 

recognized that ‚in appropriate circumstances summary 

judgment may be granted on the issue of proximate cause,‛ 

Jensen v. Mountain States Tel. & Tel. Co., 611 P.2d 363, 365 (Utah 

1980), ‚*w+here, for instance, reasonable minds could not differ 

that something was or was not the proximate cause of injury,‛

see id. at 365 n.4. In any event, ‚Utah litigants do not easily 

dispose of the element of causation on summary judgment.‛ 

Kilpatrick, 909 P.2d at 1292.

¶15 In this case, Plaintiffs argue that the trial court erred in 

denying their motions for partial summary judgment because, 

according to Plaintiffs, there was no genuine dispute of material 

fact regarding causation in view of the deposition testimony of 
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Allen Memorial’s causation expert, a toxicologist. Relying on the 

toxicologist’s testimony, Plaintiffs contend that ‚*i+t was 

undisputed that had [the patient] stayed the night at Allen 

Memorial Hospital she would more likely than not have lived.‛ 

¶16 During his deposition, the toxicologist answered several 

questions from Plaintiffs’ counsel regarding whether the patient

would have fared better if she had stayed at Allen Memorial 

Hospital after her procedure rather than going home. Because 

the overall tone of the testimony and the context of key 

statements are of such importance, we quote the testimony at 

length:

Q. Okay. Do you agree with this, if [the patient]

had been kept overnight at Allen Memorial 

Hospital on June 20th, 2007, in your opinion do 

you believe, more likely than not, that she would 

have been alive on June 21st 2007? 

. . . .

A. I don’t feel—that’s beyond my level of expertise. 

I don’t feel like I can adequately answer that. 

. . . .

Q. And so she stood a much better chance of 

surviving this if she had been kept in the hospital, 

correct? 

A. I don’t know the answer to that.

Q. Why don’t you know the answer to that when 

you—

A. Because I don’t know that she died from the 

promethazine. She could have had a cardiac 
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20131172-CA 10 2015 UT App 280

arrhythmia, which may or may not have been 

treatable in the hospital, may have been.

. . . . 

Q. Okay. So—but the respiratory arrest is more 

likely than not, correct; that’s what you said 

earlier?

A. I said it’s more likely than a cardiac arrhythmia, 

and it’s more likely than—it’s likely that it was a 

respiratory death.

Q. Yes. It’s likely that it was a respiratory death, 

and a respiratory death can be prevented in the 

hospitals, correct?

A. Most of the time. Not always, but most of the 

time, yes.

Q. And if it was a respiratory death, if she had 

been monitored, would she not have, more likely 

than not, survived the respiratory arrest in the 

hospital?

. . . . 

A. It’s beyond my level of expertise, but it is 

possible that she would have survived, yes.

Q. Is it possible or even probable? 

. . . . 

A. Again, it’s speculative. All respiratory arrests 

that occur in the hospital are not—those patients 

don’t always survive, so I don’t know the 
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percentages of whether she would have survived 

or not.

Q. Would she more likely have survived in the 

hospital if she had a respiratory arrest than if she 

was at home having a respiratory arrest?

A. Yes.

Q. How much more likely?

A. I don’t know. I can’t quantitate. I don’t know the 

percentages, the numbers.

Subsequently, after several additional questions, Plaintiffs’

counsel questioned the toxicologist one final time regarding the 

patient’s chances of survival at the hospital as compared to her 

being at home:

Q. If [the patient] was in the hospital, monitored, 

and being observed through the night, at that point 

would she stand a better chance of surviving her 

respiratory arrest in the hospital than being at 

home unmonitored?

. . . .

A. It is outside the scope of my expertise, but, 

being a physician, I would generally have to 

answer that it’s more likely that she would have 

survived in the hospital.

Q. If she was in the hospital at Allen Memorial, 

monitored and watched overnight, would you say 

that she, more likely than not, would not have died 

on June 20th, 2007, or June 21st, 2007?

. . . . 
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20131172-CA 12 2015 UT App 280

A. . . . I’m sorry. . . . I can’t answer that.

Q. Even as a physician, knowing what she died 

from—

A. Not actually certain what she died from. She 

died from multiple causes, so I don’t feel that I can 

answer that.

¶17 Plaintiffs contend that the toxicologist’s testimony that 

‚being a physician, I would generally have to answer that it’s 

more likely that she would have survived in the hospital‛ was 

sufficient to establish causation and that, therefore, the trial court 

should have granted their motions for partial summary 

judgment.

4 And at oral argument before this court, Plaintiffs’ 

counsel relied heavily on the argument that although the 

toxicologist originally qualified his testimony by stating that it 

was outside the scope of his expertise, he provided this 

particular testimony based on his knowledge generally as a 

physician, and thus, without qualification. 

¶18 Plaintiffs’ characterization of the record is flawed. The 

toxicologist began this particular statement by stating that it was 

‚outside the scope of [his] expertise.‛ But in any event, we

conclude that the toxicologist’s testimony, as a whole, was 

insufficient to establish causation as a matter of law. Both before 

and after this statement, the toxicologist either qualified his 

answers to trial counsel’s questions on causation as being

outside the scope of his expertise or indicated that he did not 

know the answer to, or could not answer, trial counsel’s 

questions. Indeed, for the majority of his testimony, the 

 

4. As a general proposition, we note that it is rather unusual that 

Plaintiffs would try to prevail on summary judgment based 

primarily on the testimony of the defendant’s expert witness.
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toxicologist was rather adamant that the answers trial counsel 

sought were outside the scope of his expertise. 

¶19 Thus we cannot agree that the toxicologist changed his 

view about the limitations presented by his credentials during 

the course of his testimony. Therfore, we conclude that once the 

toxicologist qualified his testimony by stating that it was outside 

the scope of his expertise, the trial court was effectively entitled 

to disregard any and all of the toxicologist’s subsequently 

expressed opinions regarding causation. Given the qualified 

manner in which the toxicologist gave his deposition testimony, 

there was no definitive evidence establishing causation, i.e., that 

the patient would have more likely survived if she had not been 

discharged from the hospital even though the toxicologist 

acknowledged the general accuracy of the proposition—

seemingly inarguable—that patients with significant respiratory 

problems do better in hospitals than at home. Accordingly, the 

trial court did not err when it denied Plaintiffs’ motions for 

partial summary judgment.

II. Evidence of Incarceration

¶20 Plaintiffs argue that the trial court erred in allowing 

testimony regarding the son’s incarceration because it was 

unfairly prejudicial, in violation of rule 403 of the Utah Rules of 

Evidence. The son was incarcerated when the patient died, and 

before trial he had ‚disclaimed and waived any rights to any 

settlement or any type of recovery at all in the wrongful death 

case of his mother.‛ 

¶21 On the first day of trial, Plaintiffs moved the trial court to 

disallow any mention of the son because ‚any discussion about 

[him] would be prejudicial, a waste of time, a waste of judicial 

resources and his relationship with [the patient] is not at issue in 

this case.‛ Allen Memorial argued that ‚[the patient+’s 

relationship with her children is what this case is about and her 

relation[ship] with one of her children . . . has an impact on the 
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20131172-CA 14 2015 UT App 280

relationship with all of her children.‛ Allen Memorial further 

argued, ‚Generally speaking, . . . her relationship with each of 

her kids will form the basis of the jury’s understanding of that 

relationship and of their assessment of that value.‛ The trial 

court denied Plaintiffs’ motion, the judge concluding, as 

previously noted, ‚I don’t think you can carve one person out of 

a family, as a matter of law, just because he doesn’t want 

anything and determine that anything about his relationship is 

completely irrelevant to the evaluation of all of the other 

relationships that exist in the family.‛

¶22 Thereafter, during the trial, Allen Memorial elicited 

testimony from one of the patient’s daughters that the son was 

not living at home at the time of the patient’s death, that he 

might have been incarcerated at the time, and that she herself

did not ‚have that great of a relationship‛ with the son. And 

when asked, ‚Did your mom ever go to see your brother in 

prison?,‛ she replied, ‚She never went and visited him in prison, 

no.‛

¶23 Plaintiffs contend that evidence of the son’s incarceration 

was irrelevant, that it ‚was there to pollute the trial,‛ and that 

‚the jury verdict was likely impacted by the inappropriate 

questions.‛ Noting that ‚the jury did not find causation,‛

Plaintiffs argue that ‚*w+hen one family member makes a 

mistake, not all the family members should have to pay for that 

mistake, yet that is exactly what happened in this trial.‛ 

¶24 The trial court ‚has broad discretion to admit or exclude 

evidence.‛ Avalos v. TL Custom, LLC, 2014 UT App 156, ¶ 19, 330 

P.3d 727. ‚To obtain relief based on alleged errors in the district

court’s evidentiary rulings, *Plaintiffs+ must shoulder the burden 

of demonstrating both error by the district court and prejudice, 

i.e., that there is a reasonable likelihood that a different result 

would have been reached absent the error.‛ Anderson v. Larry H. 

Miller Communications Corp., 2015 UT App 134, ¶ 30, 351 P.3d 832 

(citations and internal quotation marks omitted). 
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20131172-CA 15 2015 UT App 280

¶25 Under rule 403 of the Utah Rules of Evidence, ‚a court 

may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of . . . unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence.‛ Utah R. 

Evid. 403. In this case, the trial court did not overtly undertake 

the customary analysis required under rule 403. And we note 

that had the court done so, it very likely would have concluded 

that the limited probative value of the daughter’s testimony 

about the son was substantially outweighed by the danger of 

undue prejudice. The son was not looking to recover anything 

from the lawsuit, and it would have been easy enough to 

address his disclaimer without the daughter’s testimony or, 

better yet, simply make no mention of him in front of the jury. 

¶26 Nevertheless, Plaintiffs have not demonstrated any 

resulting prejudice, i.e., that disallowing the testimony about the 

son’s incarceration was reasonably likely to have led to a more 

favorable result at trial. See Covey v. Covey, 2003 UT App 380, 

¶ 21, 80 P.3d 553 (‚On appeal, the appellant has the burden of 

demonstrating an error was prejudicial—that there is a 

reasonable likelihood that the error affected the outcome of the 

proceedings.‛) (citation and internal quotation marks omitted). 

Although Plaintiffs imply that the jury did not find causation as 

a result of the daughter’s testimony about the son’s incarceration

and the son’s strained relationship with the patient, we are not 

persuaded. Specifically, we do not believe that a jury would 

refrain from finding that Allen Memorial caused the patient’s

death based on information about the son’s incarceration and 

her strained relationship with him. Indeed, as Plaintiffs 

acknowledge, if anything the information about the son ‚would 

have only gone to damages,‛ an issue the jury did not reach

given its finding on causation.

¶27 Moreover, Plaintiffs assume that the jury would judge 

them and the patient harshly because the son was or had been an 

imprisoned felon. However, even if we accept the accuracy of 
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20131172-CA 16 2015 UT App 280

Plaintiffs’ premise that juries disfavor imprisoned felons, it 

seems likely that the jurors would just as readily have viewed

Plaintiffs and the patient quite favorably. After all, they did the 

‚right‛ thing, in the view cynically ascribed to the jury, by 

having nothing to do with the son and apparently having done 

all they could to distance themselves from him. 

¶28 Ultimately, we are not persuaded that absent the few

references to the son’s incarceration, the jury would have found 

in Plaintiffs’ favor. Consequently, because Plaintiffs have failed 

to carry their burden of demonstrating that the trial court’s 

alleged error was prejudicial, we conclude that the trial court did 

not commit reversible error in allowing testimony about the 

son’s incarceration. 

CONCLUSION

¶29 The trial court did not err when it denied Plaintiffs’ 

motions for partial summary judgment. In addition, Plaintiffs 

have not demonstrated that any errors in the trial court’s 

evidentiary rulings were prejudicial. Accordingly, we affirm.