## 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 Plaintif fs-Appellants. John R. Paul (Christy L. Butler with him on the bri ef), 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 s upplemental Oklahoma state law claims. See 28 U.S.C. §§ 1331, 1367(a). Prior to submitting t he case to the jury, the district court granted appellee’s Rul e 50 motion as to the federal claim. The jury returned a verdict in appellee’s f avor with respect to the supplemental state law claim. The appeal of the di strict 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 Phill ips, accompanied by1 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. SeeAMERICAN HERITAGE D ICTIONARY1908 (3d ed. 1992). - 3 - his friend and co-worker Mike Lulka, walked into th e emergency room of Hillcrest Medical Center (HMC). Phillips complaine d of severe chest pain and pneumonia-like symptoms. Prior to examining Philli ps, HMC staff took background information from Phillips, including whe ther 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 t he same plan from their mutual employer, offered his card to provide HMC ad ministrative staff with the generic information that was equally applicable to the co-workers. HMC staff allegedly indicated on his file that Phillips was n ot insured. After initial processing, Phillips was “triaged” byLugenia Cue, 1 a registered nurse, and then examined by Dr. Carolyn Cobb in the minor care side of the emergency room. After the examination, Phil lips was given two prescriptions, discharged from the emergency room, and referred to an Oklahoma medical clinic for follow-up treatment. Though hi s symptoms failed to subside, Phillips was seen at work on the two days (Thursdayand Friday) following his discharge from HMC. Based upon all accounts, his c ondition was rapidly deteriorating through Saturday and Sunday.2Plaintiffs 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 Phi llips, decedent’s father, decided to take Phillips to the emergency r oom at Tulsa Regional Medical Center (TRMC). They arrived at TRMC, claiming Phil lips had been suffering from nausea and vomiting for four to five days. Ph illips again gave demographic information and denied, as he had on September 23, the use of illegal drugs. Phillips was initially examined by an emergency roo m doctor, Dr. Phillip Murta. Dr. Murta believed Phillips was suffering from pneu monia. Dr. Stan Stacy later relieved Dr. Murta and became concerned plaintiff’s condition was the result of something more serious than pneumonia. After perfo rming additional tests, Dr. Stacy confirmed Phillips was suffering from bacteri al endocarditis. Phillips’ condition worsened and he was pronounced dead on Se ptember 28, 1998. All parties agree the cause of death was acute bacteria l endocarditis. B. Procedural History Plaintiffs 2 sued Hillcrest Medical Center, Dr. Carolyn Cobb, a nd Emergency Physicians, Incorporated (later amended t o Tulsa Emergency Physicians, Incorporated (TEP)). The suit related only to the evaluation, diagnosis, and treatment provided Phillips on Septe mber 23, 1998. Plaintiffs alleged defendants violated the Emergency Medical T reatment and Active Labor3 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 tre at Phillips. Prior to trial, the district court dismissed the EM TALA 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 5 0 motion, holding no EMTALA claim existed as a matter of law, and susta ined 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. Appellant s allege the district court erred in (1) granting HMC’s Rule 50 motion as to th e EMTALA claim, (2) admitting allegations of Phillips’ drug use, (3) ex cluding plaintiffs’ expert testimony regarding the cause of bacterial endocard itis, 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 Phillip s differently than similarly situated patients because he was alleged to be uninsured and that HMC’s4The 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 dist rict 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 dis trict court, 4 appellants are now pressing similar argument befor e this court.

1. Standard of Review This court reviews the grant of judgment as a matte r 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 f or 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 forthe 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 an d is susceptible to no reasonable inferences which may support the opposin g 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 al l reasonable inferences from them are viewed in the l ight most favorable to the5The parties agree HMC is a participating hospital and is therefore covered by

EMTALA’s requirements. See42 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 prob lem 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 pat ients 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 th ose 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 s tatute 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 n ot actually covered by his employer’s insurance plan is of no consequence to t he resolution of this issue on appeal. Under EMTALA, a participating hospital 5 has two primary obligations. See Ingram v. Muskogee Reg’l Med. Ctr. , 235 F.3d 550, 551 (10th Cir. 2000). First,642 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 examin ation to determine whether the patient is suffering from an emergency medical cond ition. See Abercrombie , 950 F.2d at 680. The second obligation requires the ho spital, if an emergency medical condition exists, to stabilize the patient before t ransporting 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 sec tion 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 court6 (...continued)

7When 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 perfor med an “appropriate medical screening examination,” as defined by EMTALA, varie s with the unique capabilities of the specific hospital. See Repp , 43 F.3d at 522. Further, we give appropriate deference to the existing screening pro cedures 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 proced ures, not whether the procedures were adequate if followed.”). Based upo n those pre-existing procedures, 7adopted and employed by a hospital, the Repp court held EMTALA’s screening requirement is violated “when it does notfollow its own standard procedures.” See id. at 522. The underlying principle behind section 1395dd(a) i s 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 unif orm 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 uniformtreatment for all patients, regardless of ability to pay, is considered “the li nchpin 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 hospit al satisfies the requirements of § 1395dd(a) if its standard scr eening procedure is applied uniformly to all patients in similar medical circum stances.”); Tank v. Chronister , 941 F. Supp. 969, 972 (D. Kan. 1996) (quoting Vicke rs , 78 F.3d at 144) (“EMTALA is implicated only when individuals who ar e 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 ormeasuring a hospital’s duty to abide by its established procedures. Unless each p atient, regardless of perceived ability or inability to pay, is treated in a unifor m manner in accordance with the existing procedures, EMTALA liability attaches. Se e Repp , 43 F.3d at 522.8Interestingly, 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 intoler ance towards those perceived to be uninsured. 8 They also look for support in Christina Daczewit z’s testimony that she saw, some time after Phillips’ death, a no tation of “no insurance” on Phillips’ medical records at HMC. Appellants’ repe ated attempts to introduce evidence regarding HMC’s motives are irrelevant to whether Phillips was treated in a manner consistent with HMC’s existing procedur es. 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 strictliability). EMTALA looks only at the participating hospital’s a ctions, not motives. See Stevison , 920 F.2d at 713 (“We construe [section 1395dd(a)] as imposing a strict liability standard subject to those defenses availa ble in the act.”); see also Roberts v. Galen of Virginia , 525 U.S. 249, 252 (1999) (stating the Sixth Circu it’s requirement of an improper motive is in conflict wi th several circuits, including the First, Fourth, Eighth, and D.C. Circuit). Whil e testimony regarding a- 12 -

hospital’s knowledge of a patient’s lack of insuran ce coverage may be relevant to explain a failure to abide by established procedure s, it alone does not establish a violation of EMTALA’s requirement of uniform treatm ent. Moving to the crux of their EMTALA claim, appellant s attempted to identify certain HMC policies they claim were not f ollowed. During the Rule 50 colloquy, the district court asked appellants to po int 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) a nd an unidentified discharge policy, claiming various aspects of these policies were not followed. The district court repeatedly implored appellants’ counsel to de scribe the evidence showing that HMC failed to screen and evaluate Phillips’ co ndition. In the interest of brevity, it is sufficient to say appellants’ counse l reluctantly conceded HMC, either through Nurse Cue and/or Dr. Cobb, did in fa ct 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 Re pp and Tank v. Chronister , 941 F. Supp. 969 (D. Kan. 1996), the district courtstated that so long as HMC performed a medical screening examination, consiste nt with its policies and in an effort to discern whether Phillips was suffering fr om an emergency medical- 13 -

condition, EMTALA was satisfied. Appellants’ argument brings into focus the uneasy i ntersection between EMTALA and state law medical negligence claims. Th ey 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 ina dequate examination. EMTALA was not, however, designed for such a claim. Thoug h it created a new cause of action, we have consistently recognized EMTALA’s pr ovisions 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 t o eliminate “patientdumping”). EMTALA does not set a federal standard of care or r eplace 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 st ate law malpractice actions, and was not intended to guarantee proper diagnosis or to provide a federal remedy for misdiagnosis or medical negligence.”). While p roviding a guaranty for an “appropriate medical screening,” EMTALA, unlike tra ditional state negligence or malpractice law, does not provide a remedy for an i nadequate or inaccurate diagnosis. See Vickers , 78 F.3d at 142. For example, in Collins v. DePau l9They 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 scre ening examination “is to determine whether an ‘emergency medical conditio n exists.’ Nothing more, nothing less.” Collins , 963 F.2d 303, 306-07 (10th Cir. 1992) (footnote o mitted). Thus, while appellants were allowed to go to the ju ry 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 P hillips. As an affirmative defense, Dr. Cobb and HMC responded Phillips was atfault, invoking Oklahoma’s comparative negligence defense, for fail ing to notify them of his prior drug use. HMC claimed this failure to provid e relevant medical information contributed to any negligent care it may have provi ded. Prior to trial, appellants moved to exclude any and all evidence of Phillips’ alleged drug use. The district court denied this r equest 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 c ourt ruled the evidence was admissible to support HMC’s defense of comparative negligence. On appeal,- 15 -

appellants argue that the evidence was irrelevant a nd unduly prejudicial.

1. Standard of Review Though appellants moved, inlimine , 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 prese nted to the trial court, (2) is the type of issue that can be finally decided in a pret rial 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 re ly 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 erron eous finding of fact or an erroneous conclusion of law or manifests a clear er ror of judgment.” United States v. Mitchell , 113 F.3d 1528, 1531 (10th Cir. 1997) (internal qu otations omitted). 2. Relevance In Oklahoma, evidence of a patient’s failure to pro vide an accurate medical history is relevant to the defense of contributory negligence in a medical malpractice claim. See O KLA
. S TAT . tit. 23, §§ 13, 14; Graham v. Keuchel , 84710Appellants 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 b y 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 fa cilities did not perform the appropriate diagnostic tests to determine the sourc e” 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 g ive her accurate medical history to the treating physicians. See id. at 362 (applying Oklahoma law). Based upon Oklahoma law, there can be little doubt Philli ps’ failure to inform HMC and/or Dr. Cobb of his medical history was relevantand necessary to the defense of contributory negligence. 10

3. Unfair Prejudice- 17 -

Even assuming Phillips’ failure to inform HMC of hi s prior drug use was relevant, appellants claim the district court erred because evidence of Phillips’ drug use was unfairly prejudicial. Pursuant to Rul e 403, the district court must determine whether the admission of relevant evidenc e would cause unfair prejudice. See F ED
. R. E VID . 403. Due to the district court’s superior posit ion to gauge the testimony’s prejudicial impact in light o f 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 de ference. 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 unfairprejudice.” F ED
. R. E VID . 403. According to the literal language of the rule, ordi nary prejudice alone is insufficient to exclude relevant evidence. The pre judice must be unfair, such that we may conclude the jurors made their decision base d not upon the evidence presented but upon their confusion, passion, or emo tion. 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 probati ve value). Based upon a review of the proceedings appellants h ave identified as most egregious, we are unable to conclude any unfair pre judice occurred. The11 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 not ed the obvious – drug use is an important indicator of a patient’s physical c ondition and is crucial to determining whether to undertake additional testing . See Vol. II, p. 945. 11 While plaintiffs would have preferred evidence of Phillip s’ 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 th e eyes of one party or the other, will be perceived as prejudicial). C. Causation Testimony Appellants next contend the district court erroneou sly excluded testimony of their expert, Dr. Benjamin E. Zola. Dr. Zola ap parently would have testified that Phillips’ alleged drug use did not cause bacte rial 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 wa s whether Dr. Cobb negligently treated Phillips on September 23, 1998 and whether Phillips contributed, by withholding pertinent health inform ation, to the alleged negligent
care. See id. As such, what actually caused bacterial endocardi tis was irrelevant to whether Dr. Cobb’s treatment fell below the reco gnized standard of care.

1. Standard of Review Ordinarily, this court would review the exclusion o f expert testimony under the standards set forth in Daubert v. Merrell Dow P harmaceuticals, 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. Carmicha el , 526 U.S. 137, 152 (1999)). Here, however, the district court did notexclude Dr. Zola’s testimony based upon the merits of his expert opinion but rat her because the proffered testimony was irrelevant to the issue at hand. Thi s court reviews rulings excluding testimony under an abuse of discretion st andard. 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 testi fy that, based upon a reasonable degree of medical certainty, Phillips’ d rug 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 D r. Cobb might present to the effect Phillips caused his own death. The districtcourt 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 th e 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 withhe ld 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, th en 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 fel l well within this ruling. Without evidence alleging Phillips caused his own d eath, appellants’ sole justification for Dr. Zola’s testimony vanishes. A ccordingly, we hold the district court’s decision fell well within his wide discreti on. Furthermore, while it may have been appropriate to offer a limiting instructi on to the jury, there is no indication appellants requested one. Given appella nts’ 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) wou ld have been shown if the district court had allowed them to cross-examine HM C’s triage nurse, Lugenia Cue, with Exhibits 25 and 26. These exhibits were summaries, prepared by HMC’s counsel at the request of appellants, indicat ing 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 descr iption of their symptoms, and which side of the hospital they were sent to after initial “triaging.” Upon consulting the record, it appears appellants soughtto submit these two documents to the jury as definitive proof of differential tre atment by HMC. See Vol. I, p. 370-77. The district court ruled this method was u nduly confusing to the jurors but invited appellants to question Cue as to Philli ps’ condition and whether, as a general matter, more patients with those symptoms w ere 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 p ain 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 wh at standard of review this court should use to analyze appellants’ claim of er ror. 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 bef ore, “[e]rror may not be based on a ruling excluding evidence unless ‘the substanc e of the evidence was made known to the court by offer [of proof] or was appar ent from the context within which questions were asked.’” Inselman v. S & J Ope rating Co. , 44 F.3d 894, 896 (10th Cir. 1995) (quoting F ED
. R. E VID
. 103(a)(2)); United States v. Janusz , 135 F.3d 1319, 1323 (10th Cir. 1998) (quoting F ED
. R. E VID . 103(a)(2)). The purpose of this rule is obvious – it allows the district co urt to make an informed evidentiary ruling and creates an adequate record f or appellate review to determine whether the trial court’s ruling was reve rsible error. See Inselman , 44 F.3d at 896. In order to satisfy Rule 103(a)(2), we have held th at “‘merely telling the court the content of . . . proposed testimony’ is n ot 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, t he proponent of the excluded evidence must explain what he expects the evidence to show and the grounds for which he believes the evid ence is admissible. See Polys , 941 F.2d at 1407. If appellants have failed to m eet this hurdle, this court can reverse the district court’s ruling only if the re was plain error that affected appellants’ substantial rights. See id. at 1408; F ED
. R. E VID . 103(d). The plain error exception in civil cases “has been limited to errors which seriously affect the fairness, integrity or public reputation of jud icial proceedings.” Polys , 941 F.2d at 1408 (internal quotation omitted). It is a n 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 admissi bility was made. See Vol. I, pp. 369-76. We hold this more than sufficiently me t the demands of Polys . As such, appellants’ allegation of error will be revie wed 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 ex hibits is that they were rough summaries made by HMC’s counsel, were utterlyambiguous, and, without12The 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 misleadin g.” Vol. I., p. 374. Though not expressed, it appears the court relied upon Rul e 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 differentia l 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 releva nt evidence, it was not an abuse of discretion, especi ally considering the viable and- 25 -

effective alternatives discussed and agreed to by c ounsel. 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.