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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 44567

RODNEY HERRETT and JOYCE 

HERRETT, as husband and wife, 

 Plaintiffs-Respondents,

v.

ST. LUKE'S MAGIC VALLEY REGIONAL 

MEDICAL CENTER, LTD., dba ST. 

LUKE’S MAGIC VALLEY,

 Defendant-Appellant,

and

BUSINESS ENTITIES I through X, and 

JOHN DOE and JANE DOE, husband and 

wife, I through X,

 Defendants.

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Boise, November 2017 Term

Filed: September 6, 2018

Karel A. Lehrman, Clerk

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, 

Twin Falls County. Hon. Randy J. Stoker, District Judge.

The judgment of the district court is affirmed.

Gjording Fouser, PLLC, Boise, for appellant. Bobbi Dominick argued. 

Pedersen and Whitehead, Twin Falls, for respondents. Jarom A. Whitehead

argued. 

 _______________________________________________

HORTON, Justice.

St. Luke’s Magic Valley Regional Medical Center (St. Luke’s) appeals a jury verdict 

awarding Rodney and Joyce Herrett $3,775,864.21 in a medical malpractice action wherein St. 

Luke’s admitted liability. In this appeal, St. Luke’s asserts that the district court erred by denying 

its motion for mistrial, admitting certain expert testimony, and improperly instructing the jury as 

to recklessness. We affirm.
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I. FACTUAL AND PROCEDURAL BACKGROUND

Joyce Herrett has suffered from various medical conditions throughout her life and she 

was hospitalized at St. Luke’s in December of 2013 for a septic infection. On December 24, 

2013, Herrett was about to be discharged. Just as Herrett was about to leave her room, she asked 

about the removal of a central venous catheter (CVC) that had been placed in her neck to allow 

the direct introduction of medication and fluids into her blood stream. Marilou Wentz, the nurse

caring for Herrett, testified that she sought guidance from her supervisor, Sheila Dutt, because 

she had not removed a CVC before and that Dutt told her to just pull it out slowly. Dutt denied 

that Wentz had sought such instruction. Wentz removed the CVC while Herrett was seated 

upright in a wheelchair. 

As Wentz was removing the CVC, Herrett began to complain of difficulty in breathing. 

Herrett was placed on the hospital bed and Wentz went for help. A rapid response team was 

called and Herrett was transferred to the intensive care unit. Herrett had suffered a stroke 

resulting from an air embolism introduced during the removal of the CVC. After being treated 

for the stroke, Herrett was readmitted to the rehabilitation unit with Dr. Kim Wiggins as her 

treating physician.

After a course of treatment, Herrett was released to go home but continued to see Dr. 

Wiggins. After initially doing well, Herrett was readmitted to the hospital in September of 2014 

for failure to thrive. Following the stroke, Herrett has had trouble caring for herself and increased

anxiety.

The Herretts filed this suit on February 9, 2015. St. Luke’s admitted that Wentz, its

employee, breached the standard of care when removing the CVC. The case proceeded to trial to

determine whether Wentz’s conduct was reckless and the amount of damages. The jury trial 

lasted nine days.

During trial, the Herretts called Dr. Wiggins to testify about her treatment of Ms. Herrett 

before and after the stroke. Dr. Wiggins testified that the 2014 hospitalization resulted from the 

stroke. During cross-examination, St. Luke’s questioned Dr. Wiggins about other pre-existing 

conditions that may have necessitated the September 2014 hospitalization. St. Luke’s introduced 

some of Herrett’s medical records (exhibits K and L) into evidence during this crossexamination. On redirect, Dr. Wiggins was asked about encephalomalacia, a term appearing in 

the records admitted at St. Luke’s request. St. Luke’s objected, arguing that any opinion
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regarding encephalomalacia was outside the scope of Dr. Wiggins’ expert witness disclosure. 

The district court overruled the objection.

Near the end of their case-in-chief, the Herretts called Debra DeMint-Lee as a witness. 

Ms. DeMint-Lee is a life-care planner who testified about the cost of Herrett’s future in-home 

medical care. St. Luke’s argues that the district court erred by overruling its objection to DeMintLee’s testimony for lack of foundation for making this kind of opinion. 

Dr. Carl Goldstein was the Herretts’ only rebuttal witness. Dr. Goldstein was called to 

rebut the testimony presented by Dr. Stuart Shankland on behalf of St. Luke’s. The Herretts’ 

pretrial witness disclosure stated that “Dr. Goldstein will opine that Dr. Shankland’s assessment 

of the effect of proteinuria and chronic kidney disease on Joyce Herrett’s life expectancy is 

excessive, unreasonable and based on outdated information. Dr. Goldstein will reference 

materials provided by Dr. Shankland to establish this foundational flaw.” St. Luke’s contends 

that the trial court erred by permitting Dr. Goldstein to testify when the pretrial disclosure did not 

identify which of Dr. Shankland’s articles Dr. Goldstein was going to criticize or explain how he 

intended to utilize Dr. Shankland’s articles.

St. Luke’s objected to the Herrett’s proposed instruction defining the term “reckless,”

arguing that the district court should give the instruction found in Idaho Jury Instruction 2.25. 

The district court gave the instruction proposed by the Herretts, stating that the instruction 

properly stated the law.

The jury found the Herretts were entitled to $3,850,004.83 in damages. This figure was 

subsequently reduced by stipulation to reflect contractual adjustments of medical expenses and 

an amended judgment was entered for $3,775,864.21. St. Luke’s appeals, arguing that the district 

court erred in allowing Dr. Wiggins’ testimony because it was outside the scope of the expert 

witness disclosure. St. Luke’s also argues that Dr. Goldstein’s testimony was not properly 

disclosed as required by rule, the district court’s jury instruction improperly defined recklessness, 

and Ms. DeMint-Lee’s testimony was not supported by proper foundation. 

II. STANDARD OF REVIEW

“When reviewing the trial court’s evidentiary rulings, this Court applies an abuse of 

discretion standard.” Edmunds v. Kraner, 142 Idaho 867, 871, 136 P.3d 338, 342 (2006). “The 

Court reviews a trial court’s decision admitting or excluding evidence, including the testimony of 

expert witnesses, under the abuse of discretion standard.” White v. Mock, 140 Idaho 882, 888, 
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104 P.3d 356, 362 (2004). “Whether a witness is sufficiently qualified as an expert to state an 

opinion is a matter which is largely within the discretion of the trial court.” Egbert v. Idaho State 

Ins. Fund, 125 Idaho 678, 680, 873 P.2d 1332, 1334 (1994) (quoting Sidwell v. William Prym, 

Inc., 112 Idaho 76, 81, 730 P.2d 996, 1001 (1986)). 

“The decision whether to declare or deny a mistrial is a matter within the discretion of the 

trial judge if the court determines that an occurrence at trial has prevented a fair trial.” Van Brunt 

v. Stoddard, 136 Idaho 681, 686, 39 P.3d 621, 626 (2001). “After trial is commenced, at any time 

prior to the rendering of a verdict, the court may declare a mistrial on its own motion or on 

motion of any party if it determines an occurrence at trial has prevented a fair trial.” I.R.C.P. 48.

In order to determine if the district court abused its discretion this Court looks to see: 

Whether the trial court: (1) correctly perceived the issue as one of discretion; (2) 

acted within the outer boundaries of its discretion; (3) acted consistently with the 

legal standards applicable to the specific choices available to it; and (4) reached 

its decision by the exercise of reason.

Lunneborg v. My Fun Life, ___ Idaho ___, ___, 421 P.3d 187, 194 (2018).

“The propriety of jury instructions is a question over which this Court exercises free 

review.” Ballard v. Kerr, 160 Idaho 674, 702, 378 P.3d 464, 492 (2016) (quoting Mackay v. 

Four Rivers Packing Co., 151 Idaho 388, 391, 257 P.3d 755, 758 (2011)). “Even where an 

instruction is erroneous, the error is not reversible unless the jury instructions taken as a whole 

mislead or prejudice a party.” Id. “If the instructions fairly and adequately present the issues and 

state the law, no reversible error is committed.” Id. (quoting Lakeland True Value Hardware, 

LLC v. Hartford Fire Ins. Co., 153 Idaho 716, 724, 291 P.3d 399, 407 (2012)).

III. ANALYSIS

St. Luke’s argues that the district court erred in two main aspects during the trial. First,

St. Luke’s argues that the district court abused its discretion in admitting expert testimony from 

Dr. Wiggins, Dr. Goldstein, and Ms. DeMint-Lee. Next, St. Luke’s argues that the district court 

erred by giving the jury an incorrect definition of the term “reckless.” These assignments of error 

will be discussed in turn.

A. The district court did not err in the admission of expert testimony.

St. Luke’s argues that Dr. Wiggins’ testimony exceeded the Herretts’ pre-trial disclosures 

and thus violated Idaho Rule of Civil Procedure 26 and the district court’s pre-trial order 

regarding expert testimony. Next, St. Luke’s argues that Dr. Goldstein’s rebuttal testimony 
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likewise exceeded the scope of the pre-trial disclosure. Finally, St. Luke’s contends that the 

Herretts failed to lay proper foundation for Ms. DeMint-Lee’s testimony regarding in-home care 

expenses. 

1. The district court did not err in denying St. Luke’s motion for a mistrial 

based on the admission of Dr. Wiggins’ testimony regarding 

encephalomalacia.

St. Luke’s contends that the district court applied the wrong standard in admitting Dr. 

Wiggins’ testimony regarding encephalomalacia and that the admission of this testimony should 

have resulted in a mistrial. 

Before trial, in response to the parties’ motions in limine, the district court entered an 

order relating to undisclosed expert testimony. In that order, the district court precluded “the 

presentation of expert testimony that has not been disclosed.” The order noted that “the result is 

no more than what the Court’s scheduling order and case law requires.” Thus, the district court’s 

order did not impose any requirement for disclosure beyond that which Idaho law already 

provides.

Expert witness disclosures are governed by Idaho Rule of Civil Procedure 26. This rule 

divides expert witnesses into two categories and requires different levels of disclosure for each. 

I.R.C.P. 26(b)(4)(A). The first category is for retained experts and requires “a complete

statement of all opinions to be expressed and the basis and reasons for the opinion.” I.R.C.P. 

26(b)(4)(A)(i). The second category is non-retained experts. For such witnesses, the rule requires 

a party to disclose “the subject matter on which the witness is expected to present evidence” and 

“a summary of the facts and opinions to which the witness is expected to testify.” I.R.C.P. 

26(b)(4)(A)(ii). The parties agree that Dr. Wiggins was a non-retained expert. 

The Civil Rules Advisory Committee has explained the rationale for distinguishing 

retained experts from non-retained experts, explaining:

The purpose of making two categories of expert witnesses under this rule is to 

distinguish expert witnesses specifically retained in anticipation of litigation from 

those witnesses who offer expert opinions based on their observations with 

respect to the transaction or occurrences that are part of the subject matter of the 

trial, but who are not retained for the purposes of litigation; e.g., a treating 

physician, a police reconstructionist or an in-house engineer or accountant. 

I.R.C.P. 26(b)(4)(A) advisory committee note (Jan. 28, 2014) 
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The Herretts disclosed that Dr. Wiggins was Ms. Herrett’s treating physician and was not 

compensated as an expert. The disclosure stated that Dr. Wiggins was expected to testify about 

her treatment of Ms. Herrett and issues relating to the stroke resulting from the removal of the 

CVC. Dr. Wiggins’ testimony on direct examination was limited to facts concerning her 

treatment of Ms. Herrett. On cross-examination, St. Luke’s questioned Dr. Wiggins about

alternative reasons for the September 2014 hospitalization. In the course of cross-examination, 

St. Luke’s introduced exhibits K and L into evidence. On redirect, the Herretts asked Dr. 

Wiggins about Ms. Herrett’s encephalomalacia. 

As discussed above, Idaho Rule of Civil Procedure 26 requires a summary of facts and 

opinions to which a non-retained expert is expected to testify. I.R.C.P. 26(b)(4)(A)(ii). The rule 

does not require a disclosure of everything that the expert may testify about; rather, it requires 

disclosure of that which the expert is expected to testify about. Here, it was impossible for the 

Herretts to know precisely what subjects St. Luke’s would choose to cross-examine Dr. Wiggins 

about. Because it is impossible to predict what opposing counsel will ask during crossexamination, it is impossible to predict what will be asked during redirect examination. In short, 

questions on redirect may address matters not included in the pretrial disclosure, if those 

questions are fairly within the scope of issues explored by opposing counsel during crossexamination.

The Wyoming Supreme Court addressed the issue of the scope of permissible redirect 

examination in Sanville v. State, 593 P.2d 1340 (Wyo. 1979). In Sanville, a defendant was 

charged with obtaining money by false pretenses by passing bad checks. Id. at 1342. Part of the 

evidence tying Sanville to the checks was the presence of his fingerprints on a check. Id. The 

fingerprint identification was performed by the FBI, but the fingerprint examiner did not testify 

at the trial. Id. Ordinarily, testimony about these findings would have been excluded as hearsay. 

Id. at 1344. However, during cross-examination of a bank officer, defense counsel asked about 

the FBI performing a fingerprint analysis of the check but not for the results of that analysis. 

Id.at 1343. By doing so, the defense sought to create a “negative pregnant” in the minds of the 

jury by suggesting that the FBI analysis implicated someone other than Sanville. Id. at 1344. 

On redirect examination, the bank officer was permitted to testify that the FBI analysis 

showed the presence of Sanville’s fingerprints on the check. Id. at 1343. The trial court found 

that the defense had “opened the door” by asking about the FBI analysis. Id. Affirming, the 
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Wyoming Supreme Court stated, “[i]t is usually a basic function of redirect examination to allow 

a witness to explain his testimony elicited on cross-examination.” Id. at 1344 (citing State v. 

Price, 513 S.W.2d 392 (Mo. 1974)). The Wyoming Court continued: “the opening the door rule 

is that a party who in some way permits the trial judge to let down the gates to a field of inquiry 

that is not competent but relevant cannot complain if his adversary is also allowed to avail 

himself of the opening of its scope.” Id. (internal quotations and citations omitted).

This Court has taken a similar approach. “[O]ne may not successfully complain of errors 

one has consented to or acquiesced in.” State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460 

(1985). “In other words, invited errors are not reversible.” Id. Here, although Dr. Wiggins’

testimony exceeded the scope of the pretrial disclosure, the error was invited by St. Luke’s. St. 

Luke’s opened the door by questioning Dr. Wiggins about causation on cross-examination. St. 

Luke’s introduced exhibits discussing encephalomalacia in its cross-examination of Dr. Wiggins, 

leading the Herretts to ask her about the condition during redirect examination. 

St. Luke’s relies heavily on Radmer v. Ford Motor Co., 120 Idaho 86, 813 P.2d 897 

(1991), for the proposition that expert opinions not disclosed prior to trial must be excluded. In 

Radmer, the plaintiff’s expert conducted an examination and analysis of a crash scene days 

before the first day of trial. Id. at 88, 813 P.2d at 899. The opinions formed during this analysis 

were not disclosed until the morning of the first day of trial. Id. In holding that the district court 

abused its discretion by admitting the testimony, we focused on the continuing duty of parties to 

supplement responses to discovery where an expert’s opinion has been altered. Id. at 89, 813 

P.2d at 900. In this case, Dr. Wiggins’ opinion was not changed; rather, the scope of Dr. 

Wiggins’ testimony was expanded by St. Luke’s questioning. Because this case presents a 

different issue than that which we considered in Radmer, we do not find that case to be

instructive.

St. Luke’s further argues that it was denied a fair trial based on Dr. Wiggins’ testimony 

and that the district court abused its discretion by denying its motion for a mistrial. As discussed 

above, any error that may have resulted from admitting Dr. Wiggins’ testimony was invited. 

Thus, the district court did not abuse its discretion in denying the motion for mistrial.

2. The district court did not abuse its discretion when it admitted Dr. 

Goldstein’s rebuttal testimony.
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The Herretts called one rebuttal witness, Dr. Carl Goldstein. Dr. Goldstein was called to 

testify regarding the opinions presented by St. Luke’s expert, Dr. Stuart Shankland. The Herretts’ 

retained expert disclosure stated that “Dr. Goldstein will opine that Dr. Shankland’s assessment 

of the effect of proteinuria and chronic kidney disease on Joyce Herrett’s life expectancy is 

excessive, unreasonable and based on outdated information. Dr. Goldstein will reference 

materials provided by Dr. Shankland to establish this foundational flaw.” St. Luke’s objected to 

Dr. Goldstein’s testimony, arguing that this disclosure was deficient because it did not identify 

which of Dr. Shankland’s publications Dr. Goldstein was going to criticize or how Dr. Goldstein 

was going to use those articles. We hold that the rule does not require the level of specificity 

which St. Luke’s contends.

For retained experts, Idaho Rule of Civil Procedure 26(b)(4)(A)(i) requires parties to 

disclose:

A complete statement of all opinions to be expressed and the basis and reasons for 

the opinions must be disclosed; the data or other information considered by the 

witness in forming the opinions; any exhibits to be used as a summary of or 

support for the opinions; any qualifications of the witness, including a list of all 

publications authored by the witness within the preceding ten years; the 

compensation to be paid for the testimony; and a listing of any other cases in 

which the witness has testified as an expert at trial or by deposition within the 

preceding four years.

I.R.C.P. 26(b)(4)(A)(i)..

Based upon the pretrial disclosures, it was impossible for the Herretts to know precisely

what Dr. Shankland’s testimony would be. St. Luke’s disclosure for Dr. Shankland identified ten 

articles and chapters from various medical treatises and publications. When he testified, Dr. 

Shankland devoted considerable time to discussing one article in particular, referencing charts 

within the article. On rebuttal, Dr. Goldstein addressed this article and opined that the study was 

not designed to provide the type of support necessary for Dr. Shankland’s opinion on life 

expectancy. After receiving an offer of proof, the district court held that Dr. Goldstein’s

testimony was properly disclosed. 

Discussing the reasoning for Idaho Rule of Civil Procedure 26 disclosures, we have said: 

“[i]t is fundamental that opportunity be had for full cross-examination, and this cannot be done 

properly in many cases without resort to pre-trial discovery particularly when expert witnesses 

are involved.” Easterling v. Kendall, 159 Idaho 902, 912, 367 P.3d 1214, 1224 (2016) (quoting 
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Clark v. Klein, 137 Idaho 154, 158, 45 P.3d 810, 814 (2002)). At oral argument, St. Luke’s 

argued that Dr. Shankland was deposed prior to trial. The outcome of this appeal may have been

different if St. Luke’s had shown that Dr. Shankland’s testimony during his deposition was 

similar to that presented on cross-examination. If this was the case, then the Herretts may well 

have known which article Dr. Shankland’s testimony would focus on and a more complete 

disclosure of Dr. Goldstein’s opinion may have been required. However, Dr. Shankland’s 

deposition is not in the record before this Court. “Where an incomplete record is presented to an 

appellate court, missing portions of the record are presumed to support the action of the trial 

court.” Idaho Military Historical Soc’y v. Maslen, 156 Idaho 624, 629, 329 P.3d 1072, 1077 

(2014) (quoting Peasley Transfer & Storage Co. v. Smith, 132 Idaho 732, 744, 979 P.2d 605, 617 

(1999)). Therefore, we hold that the district court did not abuse its discretion in allowing Dr. 

Goldstein’s testimony.

3. The district court did not abuse its discretion when it held there was 

sufficient foundation for Ms. DeMint-Lee’s testimony.

Near the end of their case-in-chief, the Herretts called Debra DeMint-Lee to testify. Ms. 

DeMint-Lee is a life-care planner who testified about the cost of Herrett’s future in-home 

medical care. St. Luke’s objected to this testimony, arguing that the Herretts had not laid the 

proper foundation for DeMint-Lee’s opinion. The district court overruled the objection and

admitted the testimony. 

Idaho Rule of Evidence 7031 discusses the basis of expert testimony:

The facts or data in the particular case upon which an expert bases an 

opinion or inference may be those perceived by or made known to the expert at or 

before the hearing. If of a type reasonably relied upon by experts in the particular 

field in forming opinions or inferences upon the subject, the facts or data need not 

be admissible in order for the opinion or inference to be admitted.

I.R.E. 703. “When reviewing the trial court’s evidentiary rulings, this Court applies an abuse of 

discretion standard.” Edmunds v. Kraner, 142 Idaho 867, 871, 136 P.3d 338, 342 (2006).

Although Ms. DeMint-Lee testified that she had not consulted with Ms. Herrett’s treating 

physician, she reviewed Herrett’s medical records and consulted with other healthcare providers 

who had reviewed the records. St. Luke’s did not demonstrate that experts in the life-care 

planning field do not rely on this type of information in forming their opinions. As such, the 

 1 The rule was amended, effective July 1, 2018. We consider the rule in effect at the time of the trial of this action.
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district court did not abuse its discretion in allowing Ms. DeMint-Lee to testify about Ms. 

Herrett’s future care.

Further, even if Ms. DeMint-Lee’s testimony lacked the proper foundation as to causation 

or necessity of in-home care, any error in admitting the testimony was harmless. The Herretts 

introduced other testimony regarding the cause of Ms. Herrett’s disability and the necessity for 

future in-home care. Dr. Wiggins testified that Ms. Herrett’s condition declined dramatically 

following the stroke. Additionally, as noted by the district court, Mr. Herrett also testified 

regarding his wife’s deteriorating condition following the stroke. While Mr. Herrett could not 

testify as to medical causation as a lay witness, he could testify as to the deterioration that he 

witnessed. The bulk of Ms. DeMint-Lee’s testimony dealt with the cost of future in-home care 

and St. Luke’s does not challenge the foundation for Ms. DeMint-Lee’s testimony relating to the 

cost of such, only the foundation for the cause and necessity of that care.

B. The district court did not err in its instruction defining “reckless.”

St. Luke’s objected to the instruction defining recklessness, arguing that the district court 

should give the instruction found in Idaho Jury Instruction 2.25. The district court gave the 

instruction proposed by the Herretts, stating that the instruction properly stated the law and that it 

thought it was better than the pattern instruction. That instruction stated:

Conduct is reckless when a person makes a conscious choice as to his or 

her course of action under circumstances where the person knew or should have 

known that such action created a high probability that harm would actually result. 

The term “reckless” does not require an intent to cause harm. Reckless means 

more than ordinary negligence.

St. Luke’s argues that this instruction was an incorrect statement of the law and reduced

the burden on the Herretts. 

“The propriety of jury instructions is a question of law over which this Court exercises 

free review.” Ballard v. Kerr, 160 Idaho 674, 702, 378 P.3d 464, 492 (2016) (quoting Mackay v. 

Four Rivers Packing Co., 151 Idaho 388, 391, 257 P.3d 755, 758 (2011)). “If the instructions 

fairly and adequately present the issues and state the law, no reversible error is committed.” Id. 

(quoting Lakeland True Value Hardware, LLC v. Hartford Fire Ins. Co., 153 Idaho 716, 724, 

291 P.3d 399, 407 (2012)). Idaho Rule of Civil Procedure 51(g) provides: 

Whenever the latest edition of Idaho Jury Instruction (IDJI) contains an 

instruction applicable to a case and the court determines that the jury should be 

instructed on the subject, the court should use the IDJI instruction unless it finds a 
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different instruction more adequately, accurately or clearly states the law. 

Whenever the latest edition of IDJI does not contain an instruction on a subject 

upon which the court determines that the jury should be instructed, or when an 

IDJI instruction cannot be modified to submit the issue properly, the instruction 

given on that subject should be simple, brief, impartial and free from argument.

I.R.C.P. 51(g). Here, St. Luke’s argues that IDJI 2.25 defines reckless. However, IDJI 2.25 

provides a definition of “willful and wanton.” IDJI 2.25. It reads:

The words “willful and wanton” when used in these instructions and when applied 

to the allegations in this case, mean more than ordinary negligence. The words mean 

intentional or reckless actions, taken under circumstances where the actor knew or should 

have known that the actions not only created an unreasonable risk of harm to another, but 

involved a high degree of probability that such harm would actually result.

IDJI 2.25. While we have said that IDJI 2.25 would be acceptable as a jury instruction defining 

the term reckless, we have never held that this is the only definition. Hennefer v. Blaine Cnty.

Sch. Dist., 158 Idaho 242, 249, 346 P.3d 259, 266 (2015). As this Court has not yet adopted an

instruction defining reckless, the district court did not err so long as its definition was simple, 

brief, impartial, and free from argument. I.R.C.P. 51(g).

In considering the definition of reckless, this Court has said that it is an objective 

standard rather than a subjective one. Hennefer, 158 Idaho at 249, 346 P.3d at 266. “Though the 

actor must make a conscious choice as to his or her course of action, the actor need not 

subjectively be actually aware of the risk or the high probability that harm will result.” Id. In 

Carillo v. Boise Tire Co. Inc., 152 Idaho 741, 274 P.3d 1256 (2012), we stated that “reckless 

misconduct is a form of negligence that involves both intentional conduct and knowledge of a 

substantial risk of harm.” Carillo, 152 Idaho at 751, 274 P.3d at 1266.

The district court’s instruction properly informed the jury that recklessness is more than 

ordinary negligence. Additionally, the instruction set forth an objective standard requiring the 

Herretts to show that Wentz either knew or should have known that harm would actually result. 

Because this Court has not specifically adopted an instruction defining recklessness and because 

the instruction used by the district court comports with the requirements of Idaho Rule of Civil 

Procedure 51(g) and is an accurate statement of the law, the district court did not err in giving 

this instruction.

C. Attorney Fees on appeal

The Herretts seek attorney fees under Idaho Code section 12-121, arguing that St. Luke’s 

brought or pursued this appeal frivolously, unreasonably, or without foundation. Under Idaho 
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Code section 12-121 attorney fees may be awarded to a prevailing party where this Court 

determines that the appeal was “brought or pursued frivolously, unreasonably, or without 

foundation. Ballard, 160 Idaho at 720, 378 P.3d at 510. Because the questions presented in this 

appeal are not areas of well-settled law, we find that St. Luke’s has not brought this appeal 

frivolously, unreasonably, or without foundation. As such, an award of attorney fees is not 

appropriate.

IV. CONCLUSION

We affirm the judgment of the district court and award costs, but not fees, to the Herretts.

Chief Justice BURDICK, and Justices BRODY and BEVAN CONCUR. JONES, J. sat, 

but did not participate due to his untimely death.