F I L E D

United States Court of Appeals

Tenth Circuit

MAR 26 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

CRYSTAL STAR PHILLIPS,

individually and as next of kin to

Martin Shane Phillips, by and through

her mother, legal guardian and next

friend, MINNIE CHRISTINA

DACZEWITZ; THE ESTATE OF

MARTIN SHANE PHILLIPS; FRED

MARTIN PHILLIPS, JR., parent of

Martin Shane Phillips,

Plaintiffs - Appellants,

v. 

HILLCREST MEDICAL CENTER, an

Oklahoma corporation doing business

in the State of Oklahoma,

Defendant - Appellee,

and

CAROLYN COBB, a physician;

EMERGENCY PHYSICIANS, INC.,

an Oklahoma corporation doing

business in the State of Oklahoma,

Defendants.

No. 00-5013

_______________________
*

 Honorable Monti L. Belot, United States District Judge for the District of

Kansas, sitting by designation.

- 2 -

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 98-CV-829-H)

_______________________

Gregory Von Copeland, Tulsa, Oklahoma, for Plaintiffs-Appellants.

John R. Paul (Christy L. Butler with him on the brief), The Paul Law Firm, Tulsa,

Oklahoma, for Defendant-Appellee.

_______________________

Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and

BELOT, District Judge.*

_______________________

BELOT, District Judge.

_______________________

Appellants filed this action alleging federal and supplemental Oklahoma

state law claims. See 28 U.S.C. §§ 1331, 1367(a). Prior to submitting the case to

the jury, the district court granted appellee’s Rule 50 motion as to the federal

claim. The jury returned a verdict in appellee’s favor with respect to the

supplemental state law claim. The appeal of the district court’s final judgment is

now properly before this court. See 28 U.S.C. § 1291. We affirm.

I. INTRODUCTION

A. Facts

On Wednesday, September 23,1998, Martin Shane Phillips, accompanied by
1

 When patients arrive at HMC, hospital personnel perform a “triage.” Triage is

a procedure, first used by military hospitals, to perform an initial assessment of a patient’s

symptoms in order to direct the patient to the area of care commensurate with his

condition. See AMERICAN HERITAGE DICTIONARY 1908 (3d ed. 1992).

- 3 -

his friend and co-worker Mike Lulka, walked into the emergency room of

Hillcrest Medical Center (HMC). Phillips complained of severe chest pain and

pneumonia-like symptoms. Prior to examining Phillips, HMC staff took

background information from Phillips, including whether he was covered under

any health insurance plan. Phillips claimed he was covered but could not locate

his insurance card. Lulka, who was covered under the same plan from their

mutual employer, offered his card to provide HMC administrative staff with the

generic information that was equally applicable to the co-workers. HMC staff

allegedly indicated on his file that Phillips was not insured. 

After initial processing, Phillips was “triaged” by Lugenia Cue,1 a

registered nurse, and then examined by Dr. Carolyn Cobb in the minor care side

of the emergency room. After the examination, Phillips was given two

prescriptions, discharged from the emergency room, and referred to an Oklahoma

medical clinic for follow-up treatment. Though his symptoms failed to subside,

Phillips was seen at work on the two days (Thursday and Friday) following his

discharge from HMC. Based upon all accounts, his condition was rapidly

deteriorating through Saturday and Sunday. 
2

 Plaintiffs include Phillips’ surviving daughter (Crystal Star Phillips), his Estate

(the Estate of Martin Shane Phillips), his father (Fred Phillips, Jr.), and the mother of his

daughter (Minnie Christina Daczewitz).

- 4 -

Late Sunday night or early Monday morning, Fred Phillips, decedent’s

father, decided to take Phillips to the emergency room at Tulsa Regional Medical

Center (TRMC). They arrived at TRMC, claiming Phillips had been suffering

from nausea and vomiting for four to five days. Phillips again gave demographic

information and denied, as he had on September 23, the use of illegal drugs. 

Phillips was initially examined by an emergency room doctor, Dr. Phillip Murta. 

Dr. Murta believed Phillips was suffering from pneumonia. Dr. Stan Stacy later

relieved Dr. Murta and became concerned plaintiff’s condition was the result of

something more serious than pneumonia. After performing additional tests, Dr.

Stacy confirmed Phillips was suffering from bacterial endocarditis. Phillips’

condition worsened and he was pronounced dead on September 28, 1998. All

parties agree the cause of death was acute bacterial endocarditis.

B. Procedural History

Plaintiffs2 sued Hillcrest Medical Center, Dr. Carolyn Cobb, and

Emergency Physicians, Incorporated (later amended to Tulsa Emergency

Physicians, Incorporated (TEP)). The suit related only to the evaluation,

diagnosis, and treatment provided Phillips on September 23, 1998. Plaintiffs

alleged defendants violated the Emergency Medical Treatment and Active Labor
3

 As such, Dr. Cobb is no longer a party to this case. 

- 5 -

Act (EMTALA) and also brought a claim for wrongful death under Oklahoma

medical malpractice law for failing to properly treat Phillips.

Prior to trial, the district court dismissed the EMTALA claim against Dr.

Cobb and TEP. The remaining claims were presented to a jury. At the close of

evidence, the district court sustained HMC’s Rule 50 motion, holding no

EMTALA claim existed as a matter of law, and sustained appellants’ Rule 50

motion that Dr. Cobb was the agent of HMC.3 The district court submitted the

issue of medical malpractice/wrongful death to the jury and a verdict in favor of

HMC was returned. Plaintiffs filed this appeal.

C. Summary of Issues on Appeal

On appeal, appellants raise four issues. Appellants allege the district court

erred in (1) granting HMC’s Rule 50 motion as to the EMTALA claim, (2)

admitting allegations of Phillips’ drug use, (3) excluding plaintiffs’ expert

testimony regarding the cause of bacterial endocarditis, and (4) refusing to allow

cross-examination of HMC’s nurse regarding Exhibit 25 and Exhibit 26.

II. ANALYSIS

A. EMTALA

Appellants argued at trial that HMC treated Phillips differently than

similarly situated patients because he was alleged to be uninsured and that HMC’s
4

 The court stated to appellants’ counsel “you certainly can amplify [your

argument] many pages over in Denver, but you’ve certainly got a record here.” Vol. II, p.

852, lns. 3-4.

- 6 -

established procedures were not followed. The district court ruled no evidence of

differential treatment was presented and, at most, the complained of conduct

amounted to negligence. See Vol. II, pp. 844-45. At the invitation of the district

court,4 appellants are now pressing similar argument before this court. 

1. Standard of Review

This court reviews the grant of judgment as a matter of law de novo, sitting

in the same position as the trial court. See Tyler v. Re/Max Mountain States, Inc.,

232 F.3d 808, 812 (10th Cir. 2000). Pursuant to Rule 50 of the Federal Rules of

Civil Procedure, a trial judge may grant a motion for judgment as a matter of law

if, after a party has been fully heard on an issue, there is no legally sufficient

evidentiary basis for a reasonable jury to find for the party on that issue. See

Tyler, 232 F.3d at 812; Finley v. United States, 82 F.3d 966, 968 (10th Cir. 1996). 

This court has read FRCP 50(a) to mean judgments as a matter of law may be

granted “only if the evidence points but one way and is susceptible to no

reasonable inferences which may support the opposing party’s position.” Finley,

82 F.3d at 968; see also Tyler, 232 F.3d at 812 (relying upon Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133 (2000)) . As such, the facts and all

reasonable inferences from them are viewed in the light most favorable to the
5

 The parties agree HMC is a participating hospital and is therefore covered by

EMTALA’s requirements. See 42 U.S.C. § 1395dd(e)(2).

- 7 -

appellant. See Finley, 82 F.3d at 968. 

2. Legal Framework

Congress enacted EMTALA in 1986 to address the problem of “dumping”

patients in need of medical care but without health insurance. See Abercrombie

v. Osteopathic Hosp. Founders Ass’n, 950 F.2d 676, 680 (10th Cir. 1991);

Stevison v. Enid Health Sys’s, 920 F.2d 710, 713 (10th Cir. 1990). Though

originally intended to cure the evil of dumping patients who could not pay for

services, the rights guaranteed under EMTALA apply equally to all individuals

whether or not they are insured. See Collins v. DePaul Hosp., 963 F.2d 303, 308

(10th Cir. 1992) (stating EMTALA also applies to those who are covered by

health insurance); see also Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d

1132, 1137 (8th Cir. 1996) (en banc) (stating the statute literally applies to “any

individual” so a lack of indigency or uninsured status does not defeat an

EMTALA claim). Thus, whether Phillips was or was not actually covered by his

employer’s insurance plan is of no consequence to the resolution of this issue on

appeal.

Under EMTALA, a participating hospital5 has two primary obligations. See

Ingram v. Muskogee Reg’l Med. Ctr., 235 F.3d 550, 551 (10th Cir. 2000). First,
6

 42 U.S.C. section 1395dd(a) reads as follows:

Medical screening requirement

In the case of a hospital that has a hospital emergency department, if

any individual (whether or not eligible for benefits under this

subchapter) comes to the emergency department and a request is made

on the individual's behalf for examination or treatment for a medical

condition, the hospital must provide for an appropriate medical

screening examination within the capability of the hospital's

emergency department, including ancillary services routinely available

to the emergency department, to determine whether or not an

emergency medical condition (within the meaning of subsection (e)(1)

of this section) exists.

(continued...)

- 8 -

the hospital must conduct an initial medical examination to determine whether the

patient is suffering from an emergency medical condition. See Abercrombie, 950

F.2d at 680. The second obligation requires the hospital, if an emergency medical

condition exists, to stabilize the patient before transporting him or her elsewhere. 

See Urban v. King, 43 F.3d 523, 525 (10th Cir. 1994). To ensure compliance

with these obligations, Congress created a private cause of action. See 42 U.S.C.

§ 1395dd(d); Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 521-22 (10th Cir.

1994). Appellants’ only claim under EMTALA is for an alleged failure to

provide an appropriate screening as required by section 1395dd(a).

Pursuant to section 1395dd(a), HMC was required to conduct an

“appropriate medical screening examination . . . to determine whether or not an

emergency medical condition . . . exists.” 42 U.S.C. § 1395dd(a).6 This court
6

(...continued)

7

 When a procedure has not been established by a participating hospital, the

inquiry is somewhat different. See, e.g., Power v. Arlington Hosp. Ass’n, 42 F.3d 851,

858 (4th Cir. 1994); Griffith v. Mt. Carmel Med. Ctr., 831 F. Supp. 1532, 1539-40 (D.

Kan. 1993). Such is not the case here as the parties agree a policy was in place at HMC.

- 9 -

has stated that whether a given hospital has performed an “appropriate medical

screening examination,” as defined by EMTALA, varies with the unique

capabilities of the specific hospital. See Repp, 43 F.3d at 522. Further, we give

appropriate deference to the existing screening procedures utilized by the

hospital, because it, not a reviewing court, is in a superior position to determine

its own capabilities and limitations. See id. at 522 & n.4 (“A court should ask

only whether the hospital adhered to its own procedures, not whether the

procedures were adequate if followed.”). Based upon those pre-existing

procedures,7

 adopted and employed by a hospital, the Repp court held EMTALA’s

screening requirement is violated “when it does not follow its own standard

procedures.” See id. at 522. 

The underlying principle behind section 1395dd(a) is to ensure all patients,

regardless of their perceived ability or inability to pay for medical care, are given

consistent attention. EMTALA’s requirement of an “appropriate screening

examination” undeniably requires HMC to “apply uniform screening procedures

to all individuals coming to the emergency room.” Vickers v. Nash Gen. Hosp.
- 10 -

Inc., 78 F.3d 139, 143 (4th Cir. 1996) (stating uniform treatment for all patients,

regardless of ability to pay, is considered “the linchpin of an EMTALA claim”). 

While this court has never expressly described the obligation under EMTALA in

terms of uniform or disparate treatment, several of our sister circuits, as well as

numerous district courts within this circuit, have. See id.; Marshall v. East

Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 323 (5th Cir. 1998); Summers, 91

F.3d at 1138; Holcomb v. Monahan, 30 F.3d 116, 117 (11th Cir. 1994); Scott v.

Hutchinson Hosp., 959 F. Supp. 1351, 1357 (D. Kan. 1997) (“A hospital satisfies

the requirements of § 1395dd(a) if its standard screening procedure is applied

uniformly to all patients in similar medical circumstances.”); Tank v. Chronister,

941 F. Supp. 969, 972 (D. Kan. 1996) (quoting Vickers, 78 F.3d at 144)

(“EMTALA is implicated only when individuals who are perceived to have the

same medical condition receive disparate treatment . . . .”). To the extent it was

unclear before, this court holds, as it implicitly did in Repp, a hospital’s

obligation under EMTALA is measured by whether it treats every patient

perceived to have the same medical condition in the same manner. “Disparate

treatment” is simply another term for describing or measuring a hospital’s duty to

abide by its established procedures. Unless each patient, regardless of perceived

ability or inability to pay, is treated in a uniform manner in accordance with the

existing procedures, EMTALA liability attaches. See Repp, 43 F.3d at 522.
8

 Interestingly, however, Lulka further stated the fact that Phillips did not have on

his person the insurance card was not a problem and did not appear to affect the care of

Phillips.

- 11 -

3. Appellants’ Claims

Appellants argued to the district court, as they have here, that evidence of a

bias towards those who are uninsured is sufficient to state an EMTALA claim.

They point to the testimony of Mike Lulka regarding the initial intake procedures

HMC undertook and attempt to extrapolate an intolerance towards those perceived

to be uninsured.8

 They also look for support in Christina Daczewitz’s testimony

that she saw, some time after Phillips’ death, a notation of “no insurance” on

Phillips’ medical records at HMC. Appellants’ repeated attempts to introduce

evidence regarding HMC’s motives are irrelevant to whether Phillips was treated

in a manner consistent with HMC’s existing procedures. This circuit, like many

others, does not require any particular motive for EMTALA liability to attach. 

See Repp, 43 F.3d at 522 n.5 (stating EMTALA imposes strict liability). 

EMTALA looks only at the participating hospital’s actions, not motives. See

Stevison, 920 F.2d at 713 (“We construe [section 1395dd(a)] as imposing a strict

liability standard subject to those defenses available in the act.”); see also Roberts

v. Galen of Virginia, 525 U.S. 249, 252 (1999) (stating the Sixth Circuit’s

requirement of an improper motive is in conflict with several circuits, including

the First, Fourth, Eighth, and D.C. Circuit). While testimony regarding a
- 12 -

hospital’s knowledge of a patient’s lack of insurance coverage may be relevant to

explain a failure to abide by established procedures, it alone does not establish a

violation of EMTALA’s requirement of uniform treatment.

Moving to the crux of their EMTALA claim, appellants attempted to

identify certain HMC policies they claim were not followed. During the Rule 50

colloquy, the district court asked appellants to point to the evidence adduced in

support of the EMTALA claim. See Vol. II, p. 827. As they have before this

court, appellants pointed to Exhibit 47 (Vol. IV) and an unidentified discharge

policy, claiming various aspects of these policies were not followed. The district

court repeatedly implored appellants’ counsel to describe the evidence showing

that HMC failed to screen and evaluate Phillips’ condition. In the interest of

brevity, it is sufficient to say appellants’ counsel reluctantly conceded HMC,

either through Nurse Cue and/or Dr. Cobb, did in fact make a determination as to

Phillips’ condition with respect to each and every allegation of failure to abide by

existing policy requirements. See Vol. II, p 829, ln. 19-20; Id. at p. 830, ln. 11 -

p. 831, ln. 4; Id. at p. 831, ln. 5 - p. 832, ln. 4; Id. at p. 843, ln. 11 - p. 844, ln. 12. 

Based upon these admissions and in reliance upon Repp and Tank v. Chronister,

941 F. Supp. 969 (D. Kan. 1996), the district court stated that so long as HMC

performed a medical screening examination, consistent with its policies and in an

effort to discern whether Phillips was suffering from an emergency medical
- 13 -

condition, EMTALA was satisfied. 

Appellants’ argument brings into focus the uneasy intersection between

EMTALA and state law medical negligence claims. They argue HMC staff failed

to appropriately identify and/or appreciate the gravity of Phillips’ condition. In

other words, while they concede HMC technically complied with their preexisting standards, the practical effect was an inadequate examination. EMTALA

was not, however, designed for such a claim. Though it created a new cause of

action, we have consistently recognized EMTALA’s provisions have only a

limited reach and purpose. See Ingram, 235 F.3d at 552 (citing several cases for

the proposition that EMTALA’s limited purpose was to eliminate “patientdumping”). 

EMTALA does not set a federal standard of care or replace pre-existing

state medical negligence laws. See, e.g., Repp v. Anadarko Mun. Hosp., 43 F.3d

519, 522 (10th Cir. 1994); Power v. Arlington Hosp. Ass’n, 42 F.3d 851, 856

(4th Cir. 1994) (“EMTALA is not a substitute for state law malpractice actions,

and was not intended to guarantee proper diagnosis or to provide a federal remedy

for misdiagnosis or medical negligence.”). While providing a guaranty for an

“appropriate medical screening,” EMTALA, unlike traditional state negligence or

malpractice law, does not provide a remedy for an inadequate or inaccurate

diagnosis. See Vickers, 78 F.3d at 142. For example, in Collins v. DePaul
9

 They did and the jury returned a verdict in favor of HMC and Dr. Cobb.

- 14 -

Hospital, we stated the purpose of section 1395dd(a)’s screening examination “is

to determine whether an ‘emergency medical condition exists.’ Nothing more,

nothing less.” Collins, 963 F.2d 303, 306-07 (10th Cir. 1992) (footnote omitted). 

Thus, while appellants were allowed to go to the jury with their medical

malpractice claim for the alleged conduct of HMC’s staff,9 the district court was,

as a matter of law, correct in stating no evidence of an EMTALA claim was

presented. 

B. Drug Use

In addition to the EMTALA claim, appellants alleged Dr. Cobb and HMC

violated the standard of care in the treatment of Phillips. As an affirmative

defense, Dr. Cobb and HMC responded Phillips was at fault, invoking

Oklahoma’s comparative negligence defense, for failing to notify them of his

prior drug use. HMC claimed this failure to provide relevant medical information 

contributed to any negligent care it may have provided. 

Prior to trial, appellants moved to exclude any and all evidence of Phillips’

alleged drug use. The district court denied this request and allowed testimony

that Phillips had used “street drugs” and failed to inform Dr. Cobb of this

information when he sought treatment at HMC. The court ruled the evidence was

admissible to support HMC’s defense of comparative negligence. On appeal,
- 15 -

appellants argue that the evidence was irrelevant and unduly prejudicial.

1. Standard of Review

Though appellants moved, in limine, to exclude evidence of drug testimony,

they failed to renew their objection at trial. HMC admits this has sufficiently

preserved the issue for appellate review. See United States v. Mejia-Alarcon, 995

F.2d 982, 986 (10th Cir. 1993) (stating a motion in limine may preserve the ruling

for review when the issue (1) has been fairly presented to the trial court, (2) is the

type of issue that can be finally decided in a pretrial hearing, and (3) is ruled upon

without equivocation). By presenting the issue to the district court and receiving

a definitive ruling, appellants were entitled to rely upon the ruling as the law of

the case and to have this court review the decision under an abuse of discretion

standard. See id. Under this standard, we will not reverse unless there has been

“a distinct showing it was based on a clearly erroneous finding of fact or an

erroneous conclusion of law or manifests a clear error of judgment.” United

States v. Mitchell, 113 F.3d 1528, 1531 (10th Cir. 1997) (internal quotations

omitted).

2. Relevance

In Oklahoma, evidence of a patient’s failure to provide an accurate medical

history is relevant to the defense of contributory negligence in a medical

malpractice claim. See OKLA. STAT. tit. 23, §§ 13, 14; Graham v. Keuchel, 847
10 Appellants have attempted to avoid this result by claiming their negligence

claim was based upon Dr. Cobb’s failure to “test,” not “diagnose,” Phillips. It is unclear

to this court what, if any, significance this alleged distinction would make to the

relevance of Phillips’ withholding pertinent medical information from his treating

physicians. Because appellants have failed to support this distinction with any authority,

legal or otherwise, we need not consider it. See, e.g., Pelfresne v. Village of Williams

Bay, 917 F.2d 1017, 1023 (7th Cir. 1990) (“A litigant who fails to press a point by

supporting it with pertinent authority, or by showing why it is sound despite a lack of

supporting authority or in the face of contrary authority, forfeits the point. [The court]

will not do his research for him.”); Capps v. Cowley, 63 F.3d 982, 984 (10th Cir. 1995)

(citing Pelfresne); Robinson v. Tenantry (In re Robinson), 987 F.2d 665, 668 (10th Cir.

1993); Phillips v. Calhoun, 956 F.2d 949, 953 (10th Cir. 1992) (citing Pelfresne).

- 16 -

P.2d 342, 358 & n.78 (Okla. 1993) (stating patient’s failure to inform the medical

staff about her rare blood type may be considered by the jury as an indication of

her contributory negligence). In Bointy-Tsotigh v. United States, for example, the

plaintiff claimed “[p]hysicians at the defendant facilities did not perform the

appropriate diagnostic tests to determine the source” of plaintiff’s medical

condition. Bointy-Tsotigh, 953 F. Supp. 358, 362 (W.D. Okla. 1996) Despite the

defendants’ failure to adequately test (or perform “diagnostic tests”), the court

reduced plaintiff’s damages because she failed to give her accurate medical

history to the treating physicians. See id. at 362 (applying Oklahoma law). Based

upon Oklahoma law, there can be little doubt Phillips’ failure to inform HMC

and/or Dr. Cobb of his medical history was relevant and necessary to the defense

of contributory negligence.10 

3. Unfair Prejudice
- 17 -

Even assuming Phillips’ failure to inform HMC of his prior drug use was

relevant, appellants claim the district court erred because evidence of Phillips’

drug use was unfairly prejudicial. Pursuant to Rule 403, the district court must

determine whether the admission of relevant evidence would cause unfair

prejudice. See FED. R. EVID. 403. Due to the district court’s superior position to

gauge the testimony’s prejudicial impact in light of the evidence presented

throughout trial and the jurors’ perception of the case as a whole, we give the

district court’s determination a large degree of deference. See, e.g., Joseph v.

Terminix Int’l Co., 17 F.3d 1282, 1284 (10th Cir. 1994).

Under Rule 403, relevant evidence may be excluded “if its probative value

is substantially outweighed by the danger of unfair prejudice.” FED. R. EVID. 403. 

According to the literal language of the rule, ordinary prejudice alone is

insufficient to exclude relevant evidence. The prejudice must be unfair, such that

we may conclude the jurors made their decision based not upon the evidence

presented but upon their confusion, passion, or emotion. See, e.g., Stump v.

Gates, 211 F.3d 527, 534 (10th Cir. 2000); see also Securities and Exchange

Comm’n v. Peters, 978 F.2d 1162, 1171 (10th Cir. 1992) (noting the unfair

prejudice must “substantially outweigh” the probative value). 

Based upon a review of the proceedings appellants have identified as most

egregious, we are unable to conclude any unfair prejudice occurred. The
11 Specifically, the identified portion of the record reads:

Q: All right. Before we move on, I want to go back to bacterial

endocarditis and just ask you for diagnostic purposes is it

important for you, the clinician, to know whether or not the

patient is using street drugs?

A: I think it is. And much as I indicated earlier in terms of the

historic or the setting, the use of street drugs raises your

suspicion for infectious processes with particular regard to the

heart and much like if you have a history of abnormal heart

valves or previous heart surgery.

Vol. II, p. 945, lns. 8-16. In addition, counsel for Dr. Cobb, in opening statement,

claimed drug use was relevant to the case because, “for diagnostic purposes the clinician

needs to know that because it’s well known that [the use of] street drugs is a well known

predisposing factor for various infections including bacterial endocarditis, and they need

to know that.” Vol. I, p. 56, lns. 8-13.

- 18 -

testimony from HMC and Dr. Cobb’s expert simply noted the obvious – drug use

is an important indicator of a patient’s physical condition and is crucial to

determining whether to undertake additional testing. See Vol. II, p. 945.11 While

plaintiffs would have preferred evidence of Phillips’ drug use not be presented to

the jury, simple prejudice alone is insufficient to warrant exclusion. See Peters,

978 F.2d at 1171 (noting almost all evidence, in the eyes of one party or the other,

will be perceived as prejudicial).

C. Causation Testimony

Appellants next contend the district court erroneously excluded testimony

of their expert, Dr. Benjamin E. Zola. Dr. Zola apparently would have testified

that Phillips’ alleged drug use did not cause bacterial endocarditis. The district
- 19 -

court, however, ruled that evidence of what caused plaintiff’s fatal condition was

not at issue. See Vol. II, p. 755-56. The court stated the issue was whether Dr.

Cobb negligently treated Phillips on September 23, 1998 and whether Phillips

contributed, by withholding pertinent health information, to the alleged negligent

care. See id. As such, what actually caused bacterial endocarditis was irrelevant

to whether Dr. Cobb’s treatment fell below the recognized standard of care.

1. Standard of Review

Ordinarily, this court would review the exclusion of expert testimony under

the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Incorporated,

509 U.S. 579, 589 (1993) . See, e.g., Hynes v. Energy West, 211 F.3d 1193,1202

(10th Cir. 2000) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

(1999)). Here, however, the district court did not exclude Dr. Zola’s testimony

based upon the merits of his expert opinion but rather because the proffered

testimony was irrelevant to the issue at hand. This court reviews rulings

excluding testimony under an abuse of discretion standard. See Dodoo v. Seagate

Tech., Inc., 235 F.3d 522, 528 (10th Cir. 2000). “We will not overturn the trial

court unless it has made ‘an arbitrary, capricious, whimsical, or manifestly

unreasonable judgment[.]’” Id. (citing Woodworker’s Supply, Inc. v. Principal

Mut. Life Ins. Co., 170 F.3d 985, 992 (10th Cir. 1999)).

2. Causation of Disease
- 20 -

Appellants made a proffer that Dr. Zola would testify that, based upon a

reasonable degree of medical certainty, Phillips’ drug use did not cause bacterial

endocarditis. See Vol. II, p. 753-55. This testimony was necessary, appellants

argue, to rebut arguments or evidence that HMC or Dr. Cobb might present to the

effect Phillips caused his own death. The district court stated that the cause of

Phillips’ bacterial endocarditis was irrelevant to the negligence claim at issue and

that Phillips’ use of drugs was relevant only to the extent that he failed to inform

Dr. Cobb of a pertinent medical condition. See id. at 755. While counsel for

HMC and Dr. Cobb were free to argue Phillips withheld pertinent information, the

district court rule that “if [counsel for HMC or Dr. Cobb] start even for a moment

suggesting that the cause of death was drug use, then there will be serious old

testament stuff.” Id. 

Because appellant has failed to indicate any events contrary to this ruling

actually occurred, we are assured all arguments fell well within this ruling. 

Without evidence alleging Phillips caused his own death, appellants’ sole

justification for Dr. Zola’s testimony vanishes. Accordingly, we hold the district

court’s decision fell well within his wide discretion. Furthermore, while it may

have been appropriate to offer a limiting instruction to the jury, there is no

indication appellants requested one. Given appellants’ failure, we can not say

plain error occurred. See Gilbert v. Cosco Inc., 989 F.2d 399, 404 (10th Cir.
- 21 -

1993); see also United States v. Pedraza, 27 F.3d 1515, 1526 (10th Cir. 1994)

(stating the failure to seek a limiting instruction, in a criminal case, may be the

result of a tactical decision).

D. Cross-examination

In their fourth and final point, appellants allege evidence of disparate

treatment (applicable only to the EMTALA claim) would have been shown if the

district court had allowed them to cross-examine HMC’s triage nurse, Lugenia

Cue, with Exhibits 25 and 26. These exhibits were summaries, prepared by

HMC’s counsel at the request of appellants, indicating the number of patients

admitted to the emergency room (Exhibit 25) and the minor care area of HMC

(Exhibit 26) on September 28, 1998. See Vol. IV, Exs. 25 and 26. The

information contained in these exhibits showed the time the unnamed patients

were admitted and released, a one to two word description of their symptoms, and

which side of the hospital they were sent to after initial “triaging.” Upon

consulting the record, it appears appellants sought to submit these two documents

to the jury as definitive proof of differential treatment by HMC. See Vol. I, p.

370-77. The district court ruled this method was unduly confusing to the jurors

but invited appellants to question Cue as to Phillips’ condition and whether, as a

general matter, more patients with those symptoms were triaged to the emergency

room on that day or otherwise. See id. at pp. 375-78. Appellants then asked Cue
- 22 -

whether she typically sent more people with chest pain to the minor side or to the

emergency side, but when she responded she could make no categorical statement,

the issue was pressed no further. See id. at 378. 

1. Standard of Review

As an initial matter, the parties disagree as to what standard of review this

court should use to analyze appellants’ claim of error. HMC contends no offer of

proof was made as to the content of these exhibits and therefore this court may

review only for plain error. As we have stated before, “[e]rror may not be based

on a ruling excluding evidence unless ‘the substance of the evidence was made

known to the court by offer [of proof] or was apparent from the context within

which questions were asked.’” Inselman v. S & J Operating Co., 44 F.3d 894, 896

(10th Cir. 1995) (quoting FED. R. EVID. 103(a)(2)); United States v. Janusz, 135

F.3d 1319, 1323 (10th Cir. 1998) (quoting FED. R. EVID. 103(a)(2)). The purpose

of this rule is obvious – it allows the district court to make an informed

evidentiary ruling and creates an adequate record for appellate review to

determine whether the trial court’s ruling was reversible error. See Inselman, 44

F.3d at 896.

In order to satisfy Rule 103(a)(2), we have held that “‘merely telling the

court the content of . . . proposed testimony’ is not an offer of proof.” Polys v.

Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1407 (10th Cir. 1991) (quoting
- 23 -

Gates v. United States, 707 F.2d 1141, 1145 (10th Cir. 1983)). Rather, the

proponent of the excluded evidence must explain what he expects the evidence to

show and the grounds for which he believes the evidence is admissible. See

Polys, 941 F.2d at 1407. If appellants have failed to meet this hurdle, this court

can reverse the district court’s ruling only if there was plain error that affected

appellants’ substantial rights. See id. at 1408; FED. R. EVID. 103(d). The plain

error exception in civil cases “has been limited to errors which seriously affect

the fairness, integrity or public reputation of judicial proceedings.” Polys, 941

F.2d at 1408 (internal quotation omitted). It is an extraordinary, nearly

insurmountable burden. See id. at 1408 n.5 (collecting cases).

Based upon a review of the record, appellants have sufficiently preserved

this issue for appeal. Specifically, the exhibits were identified, their contents and

origins discussed, and argument as to their admissibility was made. See Vol. I,

pp. 369-76. We hold this more than sufficiently met the demands of Polys. As

such, appellants’ allegation of error will be reviewed under the less stringent

abuse of discretion standard. See Polys, 941 F.2d at 1407. Even under this more

lenient standard, however, appellants’ argument is unavailing.

2. Exclusion of Testimony

The district court’s rationale for excluding the exhibits is that they were

rough summaries made by HMC’s counsel, were utterly ambiguous, and, without
12 The colloquy between appellants counsel and the district court went as follows:

Court: Right. So the question – I mean, you can ask her why it is that

she chose, in the face of chest pain, to send him to minor care. And

you can even ask her if in more circumstances than not, chest pain

goes to the emergency room. But your goal here is to talk about what

she saw and heard and what decision she made and why she made

them, and whether or not those decisions in the normal course were

different than what she normally does.

Counsel: Is Your Honor saying I can ask her typically do more people

go to the emergency side with chest pain?

Court: Does she send more people to the emergency side.

Counsel: Yes sir.

Court: And what was it about this patient that caused her not to do

that. 

. . . 

Court: [] The point is, is that with that the one word entry doesn’t tell

us anything about whether or not somebody should go to the minor

care side or ER side; right?

Counsel: Well, I mean, I think that’s something that the witness would

certainly be able to explain. But I understand. With my objection

noted, Your Honor, I understand the court’s ruling.

Court: No. I understand your objection. All Right.

Vol. I, pp. 375-76.

- 24 -

more information, would be “fundamentally misleading.” Vol. I., p. 374. Though

not expressed, it appears the court relied upon Rule 403 and determined the

evidence, in the form of exhibits 25 and 26, would have painted a distorted

picture. In order to allow the alleged differential treatment evidence to be

presented to the jury, however, the district court provided a sufficiently effective

alternative method.12 While the district court excluded arguably relevant

evidence, it was not an abuse of discretion, especially considering the viable and
- 25 -

effective alternatives discussed and agreed to by counsel. See Deters v. Equifax

Credit Information Servs. Inc., 202 F.3d 1262, 1274 (2000).

III. CONCLUSION

After a thorough review and analysis of all issues fairly presented, we

AFFIRM.