2024 UT App 90

THE UTAH COURT OF APPEALS

RANDIE HALLETT,

Appellant,

v.

JOHN TULLY,

Appellee.

Opinion

No. 20230364-CA

Filed June 21, 2024

Fifth District Court, St. George Department

The Honorable Gary D. Stott

No. 160500601

Kevin K. Robson and Jennifer R. Johnson,

Attorneys for Appellant

Christian W. Nelson, Brandon B. Hobbs, and

Aaron T. Cunningham, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

ORME, Judge:

¶1 After Randie Hallett presented her case-in-chief against 

John Tully in this medical negligence matter, the trial court 

granted Tully’s motion for judgment as a matter of law. In this 

appeal, Hallett asks this court to reverse several decisions of the 

trial court. In addition to the grant of judgment as a matter of law, 

Hallett also challenges the trial court’s rulings excluding the 

testimony of Hallett’s causation expert and limiting the testimony 

of a fact witness. As to the expert, the trial court concluded that 

Hallett did not make a threshold showing of reliability regarding 

the expert’s opinions on whether her neurological recovery was 

adversely affected by a delay in the diagnosis and treatment of 

Hallett’s medical condition. Because any concerns with the 
Hallett v. Tully

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expert’s causation opinion relate to its weight, not its reliability, 

we reverse and remand the matter for a new trial. But we affirm 

the limitations placed on the testimony of the fact witness 

insofar as she was attempting to offer inadmissible opinion 

testimony.

BACKGROUND

¶2 On November 25, 2015, Hallett fell ill while on a trip with 

friends. She was transported by ambulance to the emergency 

department at Dixie Regional Medical Center, arriving at 

approximately 8:00 a.m. The EMS note described Hallett’s 

symptoms as dizziness, fainting, slurred speech, confusion, and 

numbness of the lip and left hand. The triage notes prepared by 

the nurse who assessed Hallett when she arrived at the hospital 

mentioned left-sided weakness and numbness, a fainting episode 

with nausea, and an altered level of consciousness.

¶3 While in the emergency room, Hallett was seen by Tully, a 

physician assistant working at the hospital on a contract basis 

rather than as an employee of the hospital. Tully ordered a 

non-contrast CT scan for Hallett at approximately 8:30 a.m. After 

reviewing the CT scan and speaking with Hallett, Tully diagnosed 

her with vertigo, gave her the drug Ativan, and discharged her at 

11:24 a.m. The friends with whom she was traveling picked 

Hallett up from the hospital.

¶4 When Hallett’s condition worsened later that day, her 

friends drove her back to the hospital. During her second 

hospitalization, a CT angiogram revealed a blood clot in 

Hallett’s basilar artery and an MRI showed that she had suffered 

a stroke. At approximately 2:30 a.m. on November 26th, a 

neurosurgeon at the hospital performed a thrombectomy and

removed the clot from Hallett’s brain. Hallett alleges that she 

suffered neurological injuries as a result of the delay in 

performing that procedure. 
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¶5 Hallett thereafter brought a medical negligence action 

against Tully and other individuals involved in her care at the 

hospital. Only the claims against Tully are at issue in this appeal.0F

1

¶6 Intending to rely on expert testimony at trial, Hallett 

submitted a disclosure pursuant to rule 26(a)(4)(A) of the Utah 

Rules of Civil Procedure, identifying Dr. Arthur Kowell as a 

retained expert witness. According to the disclosure, Hallett 

anticipated that Dr. Kowell, a board-certified neurologist and a 

clinical professor in neurology at UCLA, would testify on issues 

of causation and damages, including the “damages that were 

caused by the delay in the diagnosis of Ms. Hallett’s stroke.” 

Relevant to this appeal, it was expected that Dr. Kowell’s 

testimony would include his opinion on “the damages caused by 

the defendants’ negligence, including how [Hallett’s] condition 

would have been different had the defendants complied with the 

applicable standard of care and diagnosed her stroke in a timely 

manner.”

¶7 Tully deposed Dr. Kowell in January 2020. When Dr. 

Kowell was asked if he was able to separate the damages caused 

by Hallett’s stroke from the damages related to the alleged delay 

in diagnosis, he replied, “[I]f she had had earlier treatment, I think 

it’s more likely than not, way more likely than not, way more 

likely than 50 percent, that she would have little or no residual 

neurologic deficits or problems.” According to Dr. Kowell, recent 

literature “confirms” that the benefits of a thrombectomy are 

“significant” and “had the thrombectomy been performed a lot 

earlier in the course of the stroke development, . . . it’s medically 

probable she would have little or no deficit neurologically at the 

present time.” Dr. Kowell was then asked for his opinion on when 

the thrombectomy should have been performed. He answered, “I 

1. Hallett’s claims against all other defendants were dismissed on 

the parties’ motions either before or during the trial.
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20230364-CA 4 2024 UT App 90

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

emergency room.”

¶8 Dr. Kowell was questioned about the basis for his opinion 

that the delay in performing the thrombectomy caused Hallett’s 

neurologic injuries. He replied that his opinion was “[b]ased on 

experience and the literature” but clarified that he was not relying 

on “specific literature” and would not be pointing to any at trial.

As to the conclusions he drew from the literature, Dr. Kowell 

testified, “There is a lot of literature about thrombectomies, 

certainly in the last few years. But the fact that thrombectomy can 

be considered as long as 24 hours after an event and get good 

results, when you look at these studies, the ones of the patients 

who get earlier intervention do better. A lot better.” According to 

Dr. Kowell, he had reviewed “plenty of literature” over the years 

that supported this opinion.

¶9 Tully also deposed Hallett’s friend (Friend) who was with 

her when she suffered the stroke and accompanied her to the 

hospital. Friend is a chiropractor, but Hallett designated her as a 

fact witness. It was anticipated that Friend would “testify as to her 

personal knowledge of matters relating to [the] case and as to the 

losses . . . Hallett has suffered as a result of [the] incident.” During 

her deposition, however, Friend offered opinions on the care 

Hallett received during her initial hospital admission. 

Specifically, she testified that she did not agree with Tully that 

Hallett was suffering from vertigo, she told Tully she believed 

Hallett “was having a vasovagal response based on her 

symptoms,” and she disagreed with Tully’s decision to give 

Hallett the drug Ativan.

¶10 Prior to the March 2023 trial, Tully filed several motions in 

limine, only two of which are relevant to the issues raised by 

Hallett in this appeal. In the first, Tully asked the trial court to 

exclude Dr. Kowell’s causation opinions. Specifically, Tully 

challenged Dr. Kowell’s opinion testimony on reliability grounds, 

arguing that Dr. Kowell had not reliably applied scientific 
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20230364-CA 5 2024 UT App 90

knowledge to the facts of the case. According to Tully, Dr. 

Kowell’s testimony that Hallett’s neurological outcome would 

have been better if the thrombectomy had been performed within 

three to four hours after she first arrived at the hospital was 

“without scientific basis.” In the second motion, Tully sought 

limitations on Friend’s trial testimony, arguing that Friend did not 

qualify as an expert witness and, thus, should not be permitted to 

offer any opinions concerning the medical care Hallett received.

¶11 The trial court granted both motions. The court ruled that 

Dr. Kowell was “precluded from offering opinions bearing on 

liability, causation, and damages at trial.” The court’s order is 

silent as to the basis for this ruling. Friend was “limited to fact 

witness testimony at trial” and was “precluded from rendering 

opinions that she disagreed with diagnoses, that [Hallett] was not 

experiencing vertigo, that she disagreed with the interpretation of 

the CT scan, the diagnosis of stroke, or any other expert opinions.”

Friend was also “precluded from testifying regarding any 

discussion she had with any health care provider about 

conclusions she drew or disagreements with their decisions, 

analysis, or treatment based upon her training, experience, 

education, or observations.”

¶12 The matter proceeded to trial. Neither Dr. Kowell nor 

Friend testified. At the close of Hallett’s case, Tully moved for 

judgment as a matter of law, arguing Hallett did not present

sufficient evidence from which a reasonable jury could conclude 

that Tully’s alleged negligence was the actual and proximate 

cause of her damages. The trial court granted the motion and 

entered a final order dismissing the claims against Tully. Hallett 

appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Hallett raises three issues on appeal. She first asks this 

court to reverse the grant of judgment as a matter of law in Tully’s 
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20230364-CA 6 2024 UT App 90

favor, arguing that the evidence presented at trial was sufficient 

to establish the causation element of her medical negligence claim.

“Appellate courts review the grant or denial of a motion for 

judgment as a matter of law for correctness.” Pinney v. Carrera, 

2019 UT App 12, ¶ 11, 438 P.3d 902 (quotation simplified), aff’d, 

2020 UT 43, 469 P.3d 970. “A trial court is justified in granting 

[judgment as a matter of law] only if, examining all evidence in a 

light most favorable to the non-moving party, there is no 

competent evidence that would support a verdict in the 

non-moving party’s favor.” Gables at Sterling Village Homeowners 

Ass’n v. Castlewood-Sterling Village I, LLC, 2018 UT 4, ¶ 21, 417 P.3d 

95 (quotation simplified).

¶14 Hallett also challenges the grant of Tully’s motions in 

limine that resulted in the exclusion of Dr. Kowell’s expert 

testimony and limitations on Friend’s testimony. “A trial court’s 

exclusion of expert testimony is reviewed for an abuse of 

discretion and is reversed if it exceeds the limits of reasonability.” 

State v. Clopten, 2009 UT 84, ¶ 6, 223 P.3d 1103 (quotation 

simplified). We also “review decisions relating to the qualification 

of a witness as an expert or as a lay witness for an abuse of 

discretion.” State v. Rothlisberger, 2004 UT App 226, ¶ 9, 95 P.3d 

1193, aff’d, 2006 UT 49, 147 P.3d 1176.

ANALYSIS

¶15 We turn first to Hallett’s argument that Dr. Kowell’s expert 

testimony was wrongfully excluded because our resolution of the 

argument is dispositive of this appeal. Hallett argues that Tully’s 

challenges to Dr. Kowell’s causation opinion are an attack on the 

weight of that evidence rather than its admissibility. We agree.

¶16 The Utah Rules of Evidence permit opinion testimony from 

“a witness who is qualified as an expert by knowledge, skill, 

experience, training, or education” so long as such testimony will 

“help the trier of fact to understand the evidence or to determine 
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20230364-CA 7 2024 UT App 90

a fact in issue.” Utah R. Evid. 702(a). In his motion in limine, Tully 

did not dispute that Dr. Kowell possesses the required 

knowledge, skill, experience, training, or education to form an 

opinion as to causation.1F

2 Nor did Tully argue that Dr. Kowell’s 

causation testimony would not assist the trier of fact. We thus 

focus our review on rule 702(b), which states that a qualified 

expert may give opinion testimony “only if there is a threshold 

showing that the principles or methods that are underlying in the 

testimony (1) are reliable, (2) are based upon sufficient facts or 

data, and (3) have been reliably applied to the facts.” Id. R. 702(b).

¶17 It is well settled that rule 702(b) “require[s] the plaintiff to 

make only a threshold showing of reliability.” Eskelson ex rel. 

Eskelson v. Davis Hosp. & Med. Center, 2010 UT 59, ¶ 12, 242 P.3d 

762 (quotation simplified). “This threshold is not so rigorous as to 

be satisfied only by methodology or data that are free of 

controversy.” California College Inc. v. UCN Inc., 2019 UT App 39, 

¶ 22, 440 P.3d 825 (quotation simplified). Thus, even if data or 

studies are debatable, a qualified medical expert may rely on his 

or her interpretation of that information to arrive at an opinion. 

See id. The expert, however, “cannot give opinion testimony that 

flies in the face of uncontroverted facts or data.” Id. (quotation 

simplified).

¶18 Here, Tully argued in his motion in limine that the studies

on which Dr. Kowell based his causation opinion do not support 

his conclusions. Specifically, Tully represented to the trial court 

that the “scientific data upon which” Dr. Kowell relied “does not 

2. Tully did, however, argue that Dr. Kowell did not possess the 

requisite knowledge, skill, experience, training, or education to 

offer opinions regarding Hallett’s psychological and emotional 

injuries. The trial court’s order does not expressly discuss this or 

any other argument made by Tully in his motion. Even assuming 

the trial court’s ruling prohibited Dr. Kowell from testifying as to 

Hallett’s psychological and emotional injuries, Hallett does not 

challenge that implied ruling on appeal, so we do not reach it.
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20230364-CA 8 2024 UT App 90

differentiate outcomes with treatment at three to four hours 

versus at 24 hours after onset of symptoms.” But Tully does not 

point to any record evidence supporting this statement, and the 

trial court’s order contains no factual finding on this point.

¶19 Even if Tully could support the representations made, i.e., 

that Dr. Kowell relied on studies that do not specifically 

distinguish outcomes among stroke patients who receive a 

thrombectomy at any time within a twenty-four-hour period, that 

would not result in the exclusion of Dr. Kowell’s causation 

testimony. Dr. Kowell, a board-certified neurologist with more 

than forty years’ experience, testified that patients who receive 

thrombectomies within twenty-four hours have “good results” 

but “patients who get earlier intervention do . . . [a] lot better.” 

This opinion was based on his experience as a neurologist and his 

interpretation of “plenty of literature.” Thus, Hallett satisfied her 

initial burden of making a threshold showing of reliability. See

Eskelson, 2010 UT 59, ¶ 12. In a situation like that presented here, 

unless Tully can point to uncontroverted data showing that 

patients who receive thrombectomies at any time within a 

twenty-four-hour period have identical outcomes, he cannot 

successfully challenge the admissibility of Dr. Kowell’s causation 

opinion on reliability grounds. See California College, 2019 UT App 

39, ¶ 22 (stating that unreliable testimony is that which “flies in 

the face of uncontroverted facts or data”) (quotation simplified).

¶20 Dr. Kowell’s opinion testimony on causation was wrongly 

excluded because Hallett made a threshold showing that the 

testimony is reliable, and Tully has not demonstrated that the 

facts or data on which Dr. Kowell relied are irrelevant or 

demonstrably incorrect.2F

3 Tully’s arguments, correctly viewed, are 

3. When exercising their gatekeeping responsibilities under rule 

702(b), trial courts should be wary of challenges to the reliability 

of opinions offered by medical professionals who are qualified to 

give expert testimony. The purpose of rule 702(b) is to weed out 

(continued...)
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20230364-CA 9 2024 UT App 90

directed at the weight of Dr. Kowell’s testimony, not its 

admissibility. Tully can use the studies he alludes to in his motion 

in limine to challenge the conclusions Dr. Kowell drew from his 

experience and the literature, but that challenge must be made at 

trial via cross-examination.

¶21 Because the trial court exceeded the sound exercise of its 

discretion in excluding Dr. Kowell’s testimony, Hallett is entitled 

to a new trial. The entire basis for the court’s grant of judgment as 

a matter of law to Tully was that, in the court’s view, Hallett did 

not present sufficient evidence from which a reasonable jury 

could conclude that Tully’s alleged negligence was the actual and 

proximate cause of her damages. But with Dr. Kowell’s testimony 

in evidence, Hallett would have sufficient support for her 

assertion that Tully’s negligence caused her to sustain damages. 

We, therefore, not only reverse the grant of Tully’s motion in 

limine as to Dr. Kowell’s causation opinion but also reverse the 

grant of judgment as a matter of law in Tully’s favor. Accordingly, 

it is unnecessary to address Hallett’s fallback argument that the 

evidence she presented at trial was sufficient to prove the 

causation element of her medical negligence claim even without 

Dr. Kowell’s testimony.

¶22 Because Hallett is entitled to a new trial, we also consider 

whether the trial court abused its discretion in limiting Friend’s 

testimony as that question may arise again. See State v. Ogden, 2018 

UT 8, ¶ 49, 416 P.3d 1132 (“Although it is unnecessary to our 

expert opinions grounded in facts or data categorically proved to 

be incorrect—not medical opinions that are reasonably debatable.

See Utah R. Evid. 702 advisory committee note (stating that rule 

702(b) “is broad enough to permit testimony that is the product of 

competing principles or methods in the same field of expertise”). 

“Rule 702’s threshold showing requires only a basic foundational 

showing of indicia of reliability for the testimony to be admissible, 

not that the opinion is indisputably correct.” State v. Woodard, 2014 

UT App 162, ¶ 23, 330 P.3d 1283 (quotation simplified).
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20230364-CA 10 2024 UT App 90

decision, we retain the authority to reach issues when we believe 

our analysis could prove helpful on remand.”). Friend was 

disclosed as a fact witness, not an expert witness. Yet during her 

deposition, Friend offered opinions regarding Hallett’s initial 

diagnosis and the care Hallett received during her initial

hospitalization. Friend also testified that she expressed these 

opinions to Tully. When the trial court granted Tully’s motion in 

limine as to Friend’s testimony, it precluded Friend from 

testifying about “any discussion she had with any health care 

provider about conclusions she drew or disagreements with their 

decisions, analysis, or treatment based upon her training, 

experience, education, or observations.”

¶23 Although Hallett interprets the trial court’s limitations on 

Friend’s testimony as prohibiting Friend from testifying about her 

“personal knowledge of [Hallett’s] symptoms based on her 

observations,” Friend’s testimony was not so limited. Friend was 

free to testify about her observations; the limitations imposed by 

the trial court only prohibited her from testifying about any 

opinions or conclusions she drew from those observations and 

any conversations she had with Hallett’s care team during which 

she expressed such opinions or conclusions. But Hallett also 

argues that the trial court abused its discretion in so limiting 

Friend’s testimony.

¶24 In her principal brief, Hallett contends that Friend “would 

simply be providing testimony about her observations as a 

percipient eyewitness to [Hallett’s] stroke symptoms and the 

treatment or lack thereof, that [Hallett] received at [the hospital] 

and of conversations that [Friend] had at that time.” But in her

memorandum opposing Tully’s motion in limine, Hallett asserted 

Friend should be permitted to testify regarding statements she 

made to Tully that were based on Friend’s “personal knowledge 

of vertigo symptoms having herself treated patients for that 

medical condition in her chiropractic practice.” It is noteworthy, 

however, that Hallett expressly concedes in her principal brief 

that Friend is not qualified to offer expert opinions on the 
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20230364-CA 11 2024 UT App 90

standard of care for stroke patients. And a review of Friend’s 

deposition testimony shows that the conversations between 

Friend and Tully involved that very topic. 

¶25 By arguing that Friend should be permitted to testify about 

conversations she had with Tully concerning Hallett’s diagnosis 

and treatment, Hallett is attempting to use those conversations as 

a backdoor means of introducing opinion testimony that does not 

meet the requirements of rule 702. Because Friend is not a 

qualified expert, her opinion on the standard of care for stroke 

patients is inadmissible under rule 702. Accordingly, the trial 

court did not abuse its discretion in prohibiting Friend from 

testifying about her opinions on Hallett’s diagnosis or treatment, 

either through direct testimony or by recounting conversations 

she had with Tully during which Friend expressed her 

disagreements or opinions.3F

4

4. Attempting to avoid this result, Hallett argues that Friend’s 

opinion testimony is permissible under rule 701 of the Utah Rules 

of Evidence. Hallett did not rely on rule 701 before the trial court,

but we briefly address her appellate argument because it is clear 

Friend’s testimony does not comply with the rule. State v. Kitches, 

2021 UT App 24, ¶ 28, 484 P.3d 415 (“If the merits of a claim can 

easily be resolved in favor of the party asserting that the claim was 

not preserved, we readily may opt to do so without addressing 

preservation.”) (quotation simplified), cert. denied, 496 P.3d 718 

(Utah 2021). Rule 701 permits opinion testimony by a lay witness 

if the testimony is “(a) rationally based on the witness’s 

perception; (b) helpful to clearly understanding the witness’s 

testimony or to determining a fact in issue; and (c) not based on 

scientific, technical, or other specialized knowledge within the 

scope of Rule 702.” Utah R. Evid. 701. Friend’s testimony about 

her conversations with Tully is not admissible under rule 701 

because, as we have concluded, the substance of those 

conversations goes to the standard of care for stroke patients, and 

(continued...)
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20230364-CA 12 2024 UT App 90

CONCLUSION

¶26 The trial court did not abuse its discretion when it limited 

the testimony of Friend, a fact witness, insofar as it might concern 

her opinions on the standard of care. But, under the circumstances 

present in this case, the court abused its discretion when it 

precluded Hallett’s medical expert, Dr. Kowell, from offering his 

opinion on causation, and it therefore also erred by granting 

Tully’s motion for judgment as a matter of law. Accordingly, we 

reverse the court’s order dismissing Hallett’s claims and remand 

the matter for a new trial.

rule 701 expressly prohibits testimony “based on scientific, 

technical, or other specialized knowledge within the scope of Rule 

702.” Id.