This opinion is subject to revision before final

publication in the Pacific Reporter

2018 UT 14

IN THE

SUPREME COURT OF THE STATE OF UTAH

GINA M. ARNOLD,

Appellant and Cross-appellee,

v.

DAVID GRIGSBY, M.D.,

Appellee and Cross-appellant.

No. 20160191

Filed April 11, 2018

On Direct Appeal

Eighth District Court, Duchesne

The Honorable Samuel P. Chiara

No. 020800066

Attorneys:

Roger P. Christensen, Scott Evans, Sarah E. Spencer,

Gabriel K. White, Salt Lake City, for appellant and cross-appellee

Larry R. White, Paul D. Van Komen, Patrick L. Tanner,

Salt Lake City, for appellee and cross-appellant

JUSTICE HIMONAS authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE PEARCE, and JUDGE TOOMEY joined.

Due to her retirement, JUSTICE DURHAM did not participate herein;

COURT OF APPEALS JUDGE KATE A. TOOMEY sat.

JUSTICE PETERSEN became a member of the Court on

November 17, 2017, after oral argument in this matter

and accordingly did not participate.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 Gina Arnold went in for a routine colonoscopy and ended 

up with a potentially fatal condition when her bowel was 

perforated during the procedure. She subsequently filed a medical 
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2

malpractice claim against Dr. David Grigsby. This appeal is from a

medical malpractice suit where the jury concluded that 

Ms. Arnold’s lawsuit against Dr. Grigsby was time-barred. In 

particular, the jury found that Ms. Arnold’s cause of action against 

Dr. Grigsby had accrued—that she should have known of her injury 

and that it was caused by Dr. Grigsby’s negligence—more than two 

years before she filed suit. Because of this, the jury concluded that

the Utah Medical Malpractice Act’s two-year statute of limitations 

barred Ms. Arnold’s claim.

¶2 On appeal, Ms. Arnold argues that the trial court 

committed four errors. First, she argues that the trial court 

erroneously denied her motion for summary judgment on the issue 

of whether she should have known that she had a cause of action 

more than two years before she filed suit. Second, Ms. Arnold 

argues that the trial court made a variety of evidentiary errors: it 

erred in admitting two pieces of evidence that she says were 

impermissible hearsay—(1) her husband’s statement that a nurse 

had told him Ms. Arnold had received substandard care, and (2) a 

document on which a nurse had noted that Ms. Arnold said she 

intended to sue her doctors—and it also erred in excluding 

evidence Ms. Arnold had proffered. Third, she argues that the trial

court erred in denying her motion for a directed verdict regarding 

whether she should have known of her cause of action more than 

two years before she filed suit. Finally, Ms. Arnold argues that the 

trial court gave the jury several misleading instructions pertaining 

to what Dr. Grigsby had to show to prove she should have known 

about her cause of action more than two years before she filed suit.

Dr. Grigsby cross-appealed the trial court’s entry of summary 

judgment for Ms. Arnold on the issue of whether she actually knew 

of her cause of action more than two years before she filed suit.

¶3 We affirm. We hold that a jury could permissibly find for 

Dr. Grigsby based on the evidence before it. We hold that the trial 

court’s decision not to grant summary judgment isn’t reviewable—

and we further explain why an earlier decision by this court, Arnold 

v. Grigsby, 2012 UT 61, 289 P.3d 449, in which we affirmed the court 

of appeals reversal of a grant of summary judgment to Dr. Grigsby 

on this same issue, isn’t to the contrary. We hold that the trial

court’s evidentiary decisions weren’t in error: it wasn’t an abuse of 

discretion for the court to admit Ms. Arnold’s husband’s testimony, 

and the nurse’s report was admissible under the business records 

exception to the bar on hearsay; similarly, the court correctly 

excluded all the evidence Ms. Arnold proffered. We hold that a 

directed verdict isn’t warranted here where sufficient evidence was 
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Opinion of the Court

3

offered to sustain a jury verdict in favor of Dr. Grigsby. And, 

finally, we hold that, read as a whole, the jury instructions in this 

case weren’t misleading. And because we affirm, we dismiss the 

cross-appeal as moot.

BACKGROUND

¶4 In July 1999, Dr. Gary White performed an outpatient 

colonoscopy on Ms. Arnold. During the procedure, Dr. White 

unknowingly perforated Ms. Arnold’s colon when removing a 

small polyp. The next day, Ms. Arnold, experiencing symptoms, 

went to the emergency room where Dr. White diagnosed the 

perforation and admitted her to Uintah Basin Medical Center 

hospital (UBMC), a small rural hospital in Roosevelt, Utah. Initially, 

she was unsuccessfully treated with antibiotics. Dr. White and 

Dr. Grigsby subsequently performed four laparoscopic procedures 

to treat the infection caused by the perforation. Their efforts were 

unsuccessful. Mr. Arnold testified that before his wife was 

transferred to St. Mark’s Hospital, a nurse had told him that she 

needed to be transferred or she’d die, and the nurse was critical of 

the physician’s care. At her husband’s request, she was transferred 

on August 16, 1999, to St. Mark’s Hospital in Salt Lake City, where 

major surgery (a colostomy) commenced within hours to treat her 

perforation and infection. 

¶5 On August 26, 1999, a home health care nurse, Denice

Vernieuw, recorded on a sticky note attached to the intake form 

that Ms. Arnold had crossed out portions of the form because she’d 

been told by her lawyer not to sign papers agreeing to pay. This 

note was entered into her record and recorded in Ms. Arnold’s 

electronic patient notes by office staff five days later. Ms. Arnold’s 

friend, daughter of attorney Harold Hintze, visited and assisted 

Ms. Arnold frequently after she returned home to Roosevelt. After 

some form of consultation, Ms. Arnold signed an authorization and 

request for release of medical information in September 1999. 

Mr. Hintze sent a request to UBMC for her medical records on 

November 16, 1999. Mr. Hintze has no recollection of receiving 

Ms. Arnold’s records, and by November 1999, began other legal 

work in Panama. And Ms. Arnold, not having heard back from 

Mr. Hintze, hired another attorney the next spring. 

¶6 Ms. and Mr. Arnold filed their initial complaint on 

December 4, 2001, against three defendants: Dr. Gary White, 

Dr. David Grigsby, and the UBMC. This appeal only encompasses 

the action against Dr. Grigsby. In 2005, Dr. Grigsby moved for 

summary judgment because he purported that the two-year statute 
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4

of limitations had expired. The trial court granted summary 

judgment. The Arnolds subsequently appealed, arguing that the 

statute of limitations had been tolled when Dr. Grigsby left the state 

in July 2000. The court of appeals reversed the trial court, a decision 

Dr. Grigsby appealed. Arnold v. Grigsby, 2008 UT App 58, ¶ 24, 180 

P.3d 188, rev’d, 2009 UT 88, 225 P.3d 192. We reversed the court of 

appeals holding that the tolling provision didn’t apply to the statute 

of limitations period that governed medical malpractice actions 

under the Health Care Malpractice Act, Utah Code section 78-14-4 

(2002), and remanded the case to the court of appeals to review the 

trial court’s grant of summary judgment. Arnold v. Grigsby, 2009 UT 

88, ¶¶ 25–26, 225 P.3d 192. The court of appeals reversed summary 

judgment. Arnold v. Grigsby, 2010 UT App 226, ¶ 24, 239 P.3d 294, 

aff’d on other grounds, 2012 UT 61, 289 P.3d 449. Dr. Grigsby again 

appealed, and we affirmed the court of appeals in part, holding that 

the facts presented couldn’t establish as a matter of law that her 

claim was barred by the statute of limitations, and remanded the 

case to the trial court “so that a jury [could] determine whether 

Ms. Arnold filed her claim more than two years after she 

discovered, or should have discovered, her legal injury.” Arnold v. 

Grigsby, 2012 UT 61, ¶ 32, 289 P.3d 449.

¶7 Upon remand to the trial court, Ms. Arnold filed a motion 

for summary judgment, which the court granted in part: finding 

that Ms. Arnold didn’t actually know of her legal injury two-years 

prior to the date she filed her complaint; and denied in part: finding 

that a genuine issue of material fact remained as to whether 

Ms. Arnold should have discovered her legal injury through 

reasonable diligence more than two years prior to filing her claim. 

After several hearings on the admissibility of evidence, the 

remaining issue was tried to a jury in November 2015. After both 

sides had presented their evidence to the jury, Ms. Arnold moved 

for a directed verdict on the grounds that the evidence admitted at 

trial established as a matter of law that the court should find in her 

favor. The trial court denied the motion, finding that “what a 

reasonable person should have known” according to the evidence 

“is always a jury question.” The issue of whether Ms. Arnold 

should have known of her legal injury then went to the jury for 

deliberation, and the jury returned a unanimous verdict in favor of 

Dr. Grigsby. We have jurisdiction under Utah Code section 78A-3-

102(3)(j).

STANDARD OF REVIEW

¶8 Summary judgment is only appropriate “if the moving 

party shows that there is no genuine dispute as to any material fact 
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5

and the moving party is entitled to judgment as a matter of law.” 

UTAH R CIV. P. 56(a);1 see also Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 

P.3d 600 (“An appellate court reviews a trial court’s legal 

conclusions and ultimate grant or denial of summary judgment for 

correctness . . . .” (citation omitted) (internal quotation marks 

omitted)). “We do not review on appeal, however, whether a 

dispute of material fact existed at the summary judgment stage of a 

litigation if the trial court denies summary judgment.” Kerr v. City of 

Salt Lake, 2013 UT 75, ¶ 29, 322 P.3d 669 (citations omitted).

¶9 With regard to the admission of evidence, most decisions 

involve a threshold statement of the legal principle governing 

admission or exclusion, findings of facts pertinent to a 

determination, and the application of the legal principle to the facts 

at hand with regard to admissibility. “We review the legal 

questions to make the determination of admissibility for 

correctness. We review the questions of fact for clear error. Finally, 

we review the [trial] court’s ruling on admissibility for abuse of 

discretion.” State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639 

(citations omitted).

¶10 A directed verdict is only appropriate “[i]f a party has been 

fully heard on an issue during a jury trial and the court finds that a 

reasonable jury would not have a legally sufficient evidentiary basis 

to find for the party on that issue.” UTAH R. CIV. P. 50(a)(1).2 This 

court reviews trial court rulings on motions for directed verdict for 

correctness. State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168 (“We 

review a trial court’s ruling on a motion for directed verdict for 

correctness.” (citation omitted)).

¶11 “A trial court’s ruling concerning a jury instruction is 

reviewed for correctness,” without deference to its interpretation of 

1 The 2015 amendments to Utah Rule of Civil Procedure 56 

weren’t meant to make any substantive changes to Utah law. UTAH 

R. CIV. P. 56 advisory committee notes (2015). Thus, we cite to the 

current version of this rule regardless of when the ruling on 

summary judgment was made.

2 Effective May 2016, rule 50 was amended to change the term 

“directed verdict” to “judgment as a matter of law” along with 

other clarifying language. The advisory committee notes that “[i]t 

effects no change in the existing standard.” UTAH R. CIV. P. 50 

advisory committee notes (2016) (citation omitted). Accordingly, we 

cite to the current version of rule 50.
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the law. Butler v. Naylor, 1999 UT 85, ¶ 10, 983 P.2d 41 (citation 

omitted). “A new trial will not be granted unless any error of the 

trial court was prejudicial, meaning that it misadvised or misled the 

jury on the law.” Id. (citation omitted).

ANALYSIS

¶12 The statute of limitations on a medical malpractice suit is 

tolled by the discovery rule until it’s time-barred by the four-year 

statute of repose. “A malpractice action against a health care 

provider shall be commenced within two years after the plaintiff or 

patient discovers, or through the use of reasonable diligence should 

have discovered[,] the injury, whichever first occurs . . . .” UTAH 

CODE § 78B-3-404(1).3

¶13 The focal issue in this appeal is whether the jury’s 

determination that Ms. Arnold’s malpractice action was time-barred

is sustainable. It is. To this end, we first describe why it would be 

inappropriate for us to review the trial court’s denial of

Ms. Arnold’s motion for summary judgment. Next, we explain why 

the trial court acted within its discretion in admitting certain 

evidence to which Ms. Arnold objected and excluding other 

evidence Ms. Arnold proffered. We then conclude that the trial

court was correct to deny Ms. Arnold’s motion for directed verdict. 

Finally, we determine that none of the jury instructions Ms. Arnold 

objects to are misleading. 

I. MOTION FOR SUMMARY JUDGMENT

¶14 Ms. Arnold first argues that the trial court erred when it 

denied her motion for summary judgment. In support of this 

argument, Ms. Arnold attempts to press into service a Utah 

Supreme Court decision from an earlier phase of her case: Arnold v. 

Grigsby, 2012 UT 61, 289 P.3d 449 (Arnold IV). In Arnold IV, she 

argues, we already decided that the same basic evidence 

3 The statute in force at the time of the malpractice suit was Utah 

Code section 78-14-4 (1979) (“No malpractice action against a health 

care provider may be brought unless it is commenced within two 

years after the plaintiff or patient discovers, or through the use of 

reasonable diligence should have discovered[,] the injury, 

whichever first occurs, but not to exceed four years after the date of 

the alleged act, omission, neglect or occurrence . . . .”). As there are 

no pertinent changes to the language of the statute that would affect 

the outcome of this case, we cite to the current version that was 

amended and codified in 2012.
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Opinion of the Court

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Dr. Grigsby later put before the jury was insufficient, as a matter of 

law, to establish that Ms. Arnold should have made the discovery 

that her medical complications resulted from negligence more than 

two years before she filed her lawsuit. We disagree. 

¶15 This summary judgment decision is not reviewable. “We 

do not review on appeal . . . whether a dispute of material fact 

existed at the summary judgment stage of a litigation if the trial 

court denies summary judgment.” Kerr v. City of Salt Lake, 2013 UT 

75, ¶ 29, 322 P.3d 669 (citation omitted). A denial of summary 

judgment is reviewable following a trial only if it’s based on a 

purely legal question or on undisputed facts. Normandeau v. Hanson 

Equip., Inc., 2009 UT 44, ¶ 15, 215 P.3d 152 (“[W]hen a court denies a 

motion for summary judgment on a purely legal basis, that is where 

the court denies the motion based on the undisputed facts, rather 

than because of the existence of a disputed material fact, the party 

denied summary judgment may challenge that denial on appeal.”); 

see also id. ¶ 11 (“Although some jurisdictions have chosen to 

implement [a] bright line rule, others recognize that [a] critical 

distinction exists between summary judgment motions raising the 

sufficiency of the evidence to create a fact question for the jury and 

those raising a question of law that the court must decide.” (second 

alteration in original) (citations omitted) (internal quotation marks 

omitted)); Kerr, 2013 UT 75, ¶ 11 (“We review for correctness a trial 

court’s denial of summary judgment when the court bases its ruling 

on a purely legal determination.” (citation omitted)). Here, the trial 

court expressly denied Ms. Arnold’s motion based on the existence 

of disputed facts. We therefore decline to review the trial court’s 

summary judgment decision.

¶16 Further, to the extent Ms. Arnold is arguing that Arnold IV

required the trial court to award her summary judgment as a matter 

of law, we reject this reading. In Arnold IV, this court upheld the 

court of appeals’ decision to reverse an award of summary 

judgment to Dr. Grigsby. We held that a reasonable jury confronted 

with the facts Dr. Grigsby adduced in support of his motion for 

summary judgment—“the existence of symptoms,” “a suspicion 

that a doctor’s negligence caused medical complications,” and “the 

commencement of an investigation”—still could have concluded 

that Ms. Arnold neither knew nor should have known of her injury, 

and we specifically remanded for a jury trial on these issues. Arnold 

IV, 2012 UT 61, ¶¶ 15, 33.

¶17 Relying on snippets from Arnold IV, Ms. Arnold invites us 

to convert it from a decision reversing the trial court’s award of 

summary judgment to Dr. Grigsby into a decision awarding her 
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summary judgment. In support of this invitation, she notes that, at 

times, Arnold IV explains its decision to reverse summary judgment 

to Dr. Grigsby by stating that the evidence before the court on 

summary judgment was “insufficient to establish” that Ms. Arnold 

knew or should have known she had a cause of action against 

Dr. Grigsby more than two years before she filed suit. 

¶18 We decline this invitation. “[A] denial of summary 

judgment is not a decision on the merits; it simply is a decision that 

there is a material factual issue to be tried.” 10A CHARLES ALAN 

WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2712 (4th ed. 

2017). When Arnold IV spoke of the “insufficiency” of Dr. Grigsby’s 

evidence, it meant that the evidence on the record was insufficient 

to establish as a matter of law that Ms. Arnold knew or should have 

known that Dr. Grigsby’s negligence had caused her injury more 

than two years before she filed suit. Arnold IV, 2012 UT 61, ¶ 33 

(“Dr. Grigsby failed to show, as a matter of law, that Ms. Arnold 

filed her claim more than two years after she discovered her legal 

injury.”). But we didn’t reach this holding because no reasonable 

jury could have concluded otherwise based on the specific facts of 

Dr. Grigsby’s case. Rather, we held “that material issues of fact in 

this case render[ed] the [trial] court’s grant of summary judgment 

inappropriate[,] . . . and we remand[ed] for the jury to determine” 

the outcome. Id. In denying the grant of summary judgment, we 

decided only that the case should go to trial, not that Dr. Grigsby 

should lose. And “[l]itigants must be able to present their cases 

fully to the court before judgment can be rendered against them 

unless it is obvious from the evidence before the court that the party 

opposing judgment can establish no right to recovery.” Mountain 

States Tel. & Tel. Co. v. Atkin, Wright & Miles, Chartered, 681 P.2d 

1258, 1261 (Utah 1984) (citation omitted).

II. EVIDENTIARY DECISIONS

¶19 Ms. Arnold asserts that the trial court erred in admitting 

improper hearsay evidence and excluding other evidence that 

would have been favorable to her case. We hold that the trial court 

correctly determined the law with regard to its evidentiary 

decisions, that there was no clear error in its factual findings, and 

that it didn’t abuse its discretion in its evidentiary rulings. 

Therefore, these rulings do not constitute reversible error. 

A. Hearsay 

¶20 Hearsay, as defined in Utah Rule of Evidence 801(c), is “a 

statement that: (1) the declarant does not make while testifying at 

the current trial or hearing; and (2) a party offers in evidence to 
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9

prove the truth of the matter asserted in the statement.”4

Sometimes, “statements that appear on the surface to be hearsay . . . 

are not. . . . Accordingly, if an out of court statement is offered for 

some other purpose—e.g., to [show its effect of the hearer’s state of 

mind] and not for its truth—it is not hearsay.” Prosper, Inc. v. Dep’t 

of Workforce Servs., 2007 UT App 281, ¶ 12, 168 P.3d 344. “Hearsay is 

not admissible except as provided by law or by these rules.” UTAH 

R. EVID. 802. There are several exceptions to the hearsay rule 

outlined in rules 803–807. 

¶21 “Our standard of review on the admissibility of hearsay 

evidence . . . ‘often contains a number of rulings, each of which may 

require a different standard of review.’” State v. Workman, 2005 UT 

66, ¶ 10, 122 P.3d 639 (citation omitted). “We review the legal

questions to make the determination of admissibility for 

correctness. We review the questions of fact for clear error. Finally, 

we review the district court’s ruling on admissibility for abuse of 

discretion.” Id. (citations omitted). 

1. Husband’s Recollection of Unknown Nurse’s Statement

¶22 While at UBMC, an unidentified nurse warned Mr. Arnold 

that he needed to get Ms. Arnold out of UBMC “or she was going to 

die.” Ms. Arnold argues that the statement was inadmissible 

hearsay. On the other hand, Dr. Grigsby argues that the statement is 

admissible because it directly led Mr. Arnold to request 

Ms. Arnold’s transfer to another hospital. The trial court concluded 

that the statement wasn’t hearsay because it was “offered to show 

the effect on Mr. Arnold, the hearer, rather than for the truth of the 

matters asserted in the statement.” The court was correct. See State 

v. Hutchison, 655 P.2d 635, 636 (Utah 1982) (“When an out-of-court 

statement is offered only to prove that the statement was made, 

without regard to its truth or falsity, it is not proscribed by the 

hearsay rule.” (citations omitted)). Also, because it wasn’t offered to 

establish the truth of Ms. Arnold’s actual risk of death or the 

deficiency of medical care, the qualifications of the nurse to make a 

medical assessment were irrelevant. 

¶23 The trial court also determined that sufficient foundation 

was laid under Utah Rule of Evidence 602 and that Utah Rule of 

4 The Utah Rules of Evidence regarding hearsay haven’t 

changed in substance since their inception. Any changes made were 

to the style and renumbering. As such, we quote the current version 

of the rules regarding hearsay.
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Evidence 403 didn’t require exclusion of this evidence. Mr. Arnold 

himself was able to establish sufficient foundation under rule 602 

because he personally participated in the conversation. Moreover, 

the probative value of the statement wasn’t substantially 

outweighed by its prejudicial effect. The fact that Mr. Arnold 

ultimately gave testimony at trial that he never communicated this 

statement to Ms. Arnold does not undermine the trial court’s 

conclusion, but strengthens it. On appeal, Dr. Grigsby admits that 

the nurse’s statement “provided no basis for [Ms. Arnold] 

discovering her injury.” Both parties agree that the nurse’s 

statement was not communicated to Ms. Arnold, so it wasn’t

prejudicial to her. And the statement had probative value. It was 

given to the jury not to prove what the nurse told him was actually 

true or whether Ms. Arnold knew of the nurse’s statement, but to 

show its effect on Mr. Arnold and present to the jury a possible 

reason for the desire to move Ms. Arnold to St. Mark’s Hospital. We 

hold that the trial court correctly interpreted the relevant legal 

issues and didn’t abuse its discretion in admitting the nurse’s 

statement.

2. Nurse’s Document

¶24 Conversely, the “sticky note” on the eight-page pharmacy 

document is hearsay because it’s being offered to prove the truth of 

the matter asserted—that Ms. Arnold had consulted an attorney 

and was considering a lawsuit. To be admissible, then, it must fall 

within one of the hearsay exceptions. Further, each statement on the 

sticky note may also be hearsay because they weren’t “transmitted 

by . . . someone with knowledge” as to their truthfulness, and so 

must comply with Utah Rule of Evidence 805: “Hearsay within 

hearsay is not excluded by the rule against hearsay if each part of 

the combined statements conforms with an exception to the rule.” 

We first determine whether the sticky note is admissible under the 

business records exception and then determine which, if any, 

statements also qualify for admissibility.

¶25 The trial court correctly concluded that a portion of the 

sticky note was permissible under rule 803(6), “Records of a 

Regularly Conducted Activity,” also known as the business records 

exception. To be admissible under the business records exception, 

“[a] record of an act, event, condition, opinion, or diagnosis” must 

meet the following requirements:

(A) the record was made at or near the time by—or from 

information transmitted by—someone with 

knowledge;
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(B) the record was kept in the course of a regularly 

conducted activity of a business . . . ;

(C) making the record was a regular practice of that 

activity;

(D) all these conditions are shown by the testimony of the 

custodian . . . ; and

(E) neither the source of information nor the method or 

circumstances of preparation indicate a lack of 

trustworthiness.

UTAH R. EVID. 803(6). Ms. Vernieuw, the home healthcare nurse, 

testified that she handwrote the sticky note to explain the changes 

made to the standard form.5 She then gave the paperwork to the 

pharmacy, which was scanned into the pharmacy’s electronic 

records within days of the visit. Thus, “the record was made at or 

near the time by—or from information transmitted by—someone 

with knowledge.” Id. 803(6)(A). Ms. Vernieuw also testified that the 

“papers belong[ed] to the pharmacy” for which she worked and 

that they were completed “in the ordinary course of . . . rendering 

services,” satisfying rule 803(6)(B)–(D). The trial court didn’t abuse 

its discretion in finding that the source of information, the method, 

or the circumstances were trustworthy.

¶26 After finding that the sticky note qualified under the 

business records exception, the trial court analyzed the note as 

5 Ms. Arnold argues that the nurse, Ms. Vernieuw, shouldn’t

have been allowed to testify because her testimony was unduly 

prejudicial, outweighing its probative value. See UTAH R. EVID. 403. 

We disagree that the trial court abused its discretion in allowing 

Ms. Vernieuw to testify. Far from it. The note was highly probative 

of key issues: Ms. Arnold’s understanding that she had a 

malpractice claim and when she came to hold that view. See State v. 

Hamilton, 827 P.2d 232, 239–40 (Utah 1992) (“In reviewing a trial 

court’s ruling on the admissibility of evidence under rule 403, we 

will not overturn the court’s determination unless it was an abuse 

of discretion. To state the matter more precisely, we review the trial 

court’s 403 ruling admitting or denying admission to evidence by 

deciding whether, as a matter of law, the trial court’s decision that 

the unfairly prejudicial potential of the evidence outweighs [or does 

not outweigh] its probativeness was beyond the limits of 

reasonability.” (alteration in original) (citations omitted) (internal 

quotation marks omitted)).
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hearsay within hearsay. There are four separate independent 

clauses that the trial court analyzed individually for admissibility 

under a hearsay exception: (1) “Client has been told by her lawyer, 

not to sign any papers indicating she’ll pay”; (2) “therefore she 

crossed out those sections or would not sign them”; (3) “Apparently 

she’s preparing a suit for problems in beginning of illness”; and 

(4) “After billing any expense after insurance pays, you may need to 

go through her lawyer for pay.” This note was signed “Denice.” 

¶27 The trial court determined that the first clause, “Client has 

been told by her lawyer, not to sign any papers indicating she’ll 

pay,” was admissible under rule 803(3). This rule allows hearsay 

statements that demonstrate “the declarant’s then-existing state of 

mind (such as motive, intent, or plan).” Id. 803(3). There was no 

abuse of discretion in admitting this evidence.

¶28 The trial court also correctly concluded that the second 

clause, “therefore she crossed out those sections or would not sign 

them” was an “event” as described in rule 803(6), and therefore 

admissible. The third clause, “Apparently she’s preparing a suit for 

problems in beginning of illness” was originally determined 

inadmissible hearsay, but was later allowed for jury consideration 

under rules 801(d)(2)6 and 803(6) when Ms. Vernieuw was able to 

provide foundation for the statement in her trial testimony. We

therefore don’t find any abuse of discretion in the application of the 

hearsay rules to the facts at hand.

¶29 The fourth clause, “After billing any expense after 

insurance pays, you may need to go through her lawyer for pay,” 

was deemed to be only the opinion of Ms. Vernieuw, and was 

therefore stricken and the jury didn’t consider it in its deliberations. 

We give the trial court deference and uphold its ruling.

B. Exclusion of Evidence

1. Testimony of Dr. White and Dr. Grigsby on Their Negligence

¶30 First, Ms. Arnold argues that the trial court erred in 

determining that testimony by Dr. White and Dr. Grigsby about 

whether they believed they had been negligent was irrelevant. 

While relevant evidence is generally admissible, irrelevant evidence 

isn’t. UTAH R. EVID. 402. “Evidence is relevant if . . . it has any 

tendency to make a fact [of consequence] more or less probable than 

it would be without the evidence.” UTAH R. EVID. 401. We have said 

6 Utah Rule of Evidence 801(d)(2) defines statements of an 

opposing party to not be hearsay if it meets certain conditions.
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that “[t]rial courts have wide latitude in making determinations of 

relevance, probativeness, and prejudice.” Diversified Holdings, L.C. v. 

Turner, 2002 UT 129, ¶ 38, 63 P.3d 686 (alteration in original) 

(citation omitted).

¶31 Accordingly, we conclude there was no abuse of discretion 

in the trial court allowing testimony from Dr. White and 

Dr. Grigsby regarding what they communicated to Ms. Arnold with 

respect to their standard of care and not allowing their personal 

opinions regarding their care. The purpose of this trial wasn’t to 

determine whether the doctors breached a standard of care, but 

whether Ms. Arnold should have known about her legal injury 

within the specified timeframe. The court decided that the doctors’

personal beliefs about their standard of care were irrelevant to a 

determination of when the statute of limitations began to run. We 

agree. 

2. Mr. Hintze’s Expert Testimony

¶32 Second, Ms. Arnold contends that the trial court erred in 

prohibiting Mr. Hintze from testifying about the general steps an 

attorney takes in a malpractice case. The trial court ruled that 

Mr. Hintze could testify about his own actions and motivations, but 

hadn’t been qualified as an expert witness and therefore couldn’t 

establish what an attorney’s standard of care would be in this type 

of case or what a reasonable attorney would do when litigating a 

case similar to Ms. Arnold’s. We find no abuse of discretion in the 

court’s application of the evidentiary rule regarding expert 

witnesses to Mr. Hintze. See UTAH R. EVID. 702.

III. DIRECTED VERDICT

¶33 A directed verdict wasn’t warranted here. The issue of 

when Ms. Arnold knew of her legal injury is a question of fact, but 

the applicability of the discovery rule to the statute of limitations—

whether she should have known about her legal injury—is a mixed 

question of law and fact. See In re Adoption of Baby B, 2012 UT 35, 

¶¶ 51–52, 308 P.3d 382; Colosimo v. Roman Catholic Bishop of Salt Lake 

City, 2007 UT 25, ¶ 11, 156 P.3d 806; see also State v. Pena, 869 P.2d 

932, 935 (Utah 1994) (“Factual questions are generally regarded as 

entailing the empirical, such as things, events, actions, or conditions 

happening, existing, or taking place, as well as the subjective, such 

as state of mind. Legal determinations, on the other hand, are 

defined as those which are not of fact but are essentially of rules or 

principles uniformly applied to persons of similar qualities and 

status in similar circumstances.” (citations omitted)), abrogated on 
ARNOLD v. GRIGSBY

Opinion of the Court

14

other grounds by USA Power, LLC, v. PacifiCorp, 2016 UT 20, 372 P.3d 

629. 

¶34 “Trial courts are given primary responsibility for making 

determinations of fact.” Pena, 869 P.2d at 935. In this case, the trial 

court determined that Dr. Grigsby had presented enough evidence 

at trial to give “a reasonable jury . . . a legally sufficient evidentiary 

basis to find” that Ms. Arnold should have discovered her injury 

more than two years before filing her complaint. UTAH R. CIV. P.

50(a)(1). “When a party challenges a trial court’s denial of a motion 

for directed verdict . . . on the basis of insufficiency of evidence, . . . 

[w]e reverse only if, viewing the evidence in the light most 

favorable to the prevailing party, we conclude that the evidence is 

insufficient to support the verdict.” Brewer v. Denver & Rio Grande 

W. R.R., 2001 UT 77, ¶ 33, 31 P.3d 557 (citations omitted) (internal 

quotation marks omitted).

¶35 Indeed, when the question, as here, is whether a jury 

should be allowed to decide whether the overall syndrome of 

evidence before it establishes that a plaintiff’s medical malpractice 

suit is time-barred, we look to whether the particular evidence before 

the jury could support such a verdict. For example, in Collins v. 

Wilson, we upheld a jury’s verdict because the evidence before it—

notably, evidence that the plaintiff suspected that a doctor acted 

negligently and evidence that the plaintiff’s expectations about how 

long he’d have to stay in the hospital were “dashed soon after the 

surgery” (and over two years before the plaintiff filed suit)—could 

license a jury’s inference that the plaintiff’s suit was time-barred. 

1999 UT 56, ¶ 18, 984 P.2d 960. The mode of analysis in Collins 

unambiguously comports with the mode of analysis in Arnold IV, 

where this court emphasized that a similar syndrome of evidence 

could also be interpreted as giving rise only to a “mere suspicion.”

¶36 And this distinction makes sense. We trust, and it will 

typically be the province of, a jury to parse the whole scheme of 

individualized evidence before it to reach a just result regarding 

whether a plaintiff in a medical malpractice action should have 

known of a cause of action more than two years before filing suit. 

It’s not the prerogative of either the trial court or the appellate 

courts to “weigh evidence or assess credibility.” Mountain States Tel. 

& Tel. Co. v. Atkin, Wright & Miles, Chartered, 681 P.2d 1258, 1261 

(Utah 1984) (citation omitted); see also Bailey v. Bayles, 2002 UT 58, 

¶ 19, 52 P.3d 1158 (“It is inappropriate for an appellate court . . . to 

assume the role[s] of weighing evidence and making its own 

findings of fact.” (citations omitted)). 
Cite as: 2018 UT 14

Opinion of the Court

15

¶37 Although the evidence presented to the trial court in this 

case wasn’t sufficient to sustain as a matter of law a summary 

judgment for either party, it was sufficient to present to the jury to 

weigh the evidence and make determinations of disputed material 

facts; therefore the trial court correctly decided a directed verdict 

was inappropriate and the jury’s verdict stands. Moreover, the 

evidence before the jury was more than enough for a reasonable 

jury to find in favor of Dr. Grigsby. As in Collins, the jury heard that 

Ms. Arnold’s expectations about the complications she would suffer 

from her colonoscopy—as well as the length of her stay in the 

hospital—were repeatedly dashed more than two years before she 

filed suit. First, she was told that it was a routine procedure and 

that she was fine to be discharged. Then, a complication arose, she 

entered the hospital for another stay, and she was again told she 

was cured. And then yet another complication arose. She went back 

in for another hospital stay. She was told she was “clean as a 

whistle.” Not ten days later, she required emergency life-saving 

surgery that resulted in a colostomy.

¶38 And, also like the plaintiff in Collins, Ms. Arnold suspected 

that her doctors had acted negligently well over two years before 

she filed suit—going so far as to refuse to sign any paperwork 

because she planned to sue. The home healthcare nurse assigned to 

her case noted on the paperwork that Ms. Arnold “has been told by 

her lawyer not to sign any papers indicating she’ll pay. . . . 

Apparently she’s preparing a suit for problems in the beginning of 

the illness.” This evidence informs the significance a reasonable jury 

might have ascribed to the troublesome course of Ms. Arnold’s 

treatment—it reflects that her experience of the objectively 

suspicious treatment she received had been of such a nature as to 

put her on the alert that her complications might well have been 

caused by her doctors’ negligence. This accumulated evidence 

could have led a jury to believe that she had been put on alert of all 

the facts necessary to lead an ordinary person using reasonable 

diligence to conclude that a claim for negligence may exist. 

¶39 In short, a reasonable jury, when confronted with these 

pieces of evidence, could have inferred that Ms. Arnold should 

have known that her injury was attributable to negligence over two 

years before she initiated her medical malpractice action. Thus, it 

would have been inappropriate for the judge to “weigh [the]

evidence or assess [the] credibility,” which would have effectively 

usurped the jury’s role. Mountain States Tel. & Tel. Co., 681 P.2d at 

1261. The trial court correctly denied her motion for directed 

verdict. 
ARNOLD v. GRIGSBY

Opinion of the Court

16

IV. JURY INSTRUCTIONS

¶40 Ms. Arnold claims that the trial court abused its discretion 

in issuing the jury instructions. A trial court abuses its discretion 

when it “relie[s] on an erroneous conclusion of law.” USA Power, 

LLC v. PacifiCorp, 2016 UT 20, ¶ 75, 372 P.3d 629 (citation omitted) 

(internal quotation marks omitted). When determining whether a 

set of jury instructions sufficiently inform the jury, “we look at the 

jury instructions in their entirety and will affirm when the 

instructions taken as a whole fairly instruct the jury on the law

applicable to the case.” Id. (citation omitted) (internal quotation 

marks omitted). This means that “a trial court does not err by 

refusing a proposed instruction if the point is properly covered in 

other instructions.” Id. (citation omitted) (internal quotation marks 

omitted). 

¶41 Ms. Arnold’s claims that the jury instructions were an 

abuse of discretion are unsubstantiated. Ms. Arnold attempts to 

show the insufficiency of the jury instructions by evaluating each 

instruction separately, challenging the specific language in each 

instruction rather than looking at them as a coherent set of 

instructions. But taken as a whole, the jury instructions correctly 

stated the law. In fact, the language in the instructions she 

challenges are direct quotes from our opinion in Arnold IV. Because 

of this, our “confidence in the jury’s verdict is [not] undermined” as 

the instructions sufficiently informed the jury regarding to the 

applicable law. Turner v. Univ. of Utah Hosps. & Clinics, 2013 UT 52, 

¶ 17, 310 P.3d 1212 (citation omitted). Thus, the trial court didn’t

abuse its discretion with regard to the jury instructions. 

CONCLUSION

¶42 We hold that there were material facts in dispute and that a 

jury could permissibly find for Dr. Grigsby based on the evidence 

before it. Therefore summary judgment and directed verdict were 

unwarranted. We further hold that it wasn’t an abuse of discretion 

for the court to admit Ms. Arnold’s husband’s testimony and the 

nurse’s report. The trial court didn’t err in excluding the evidence 

Ms. Arnold asserts should have been admitted. Finally, we 

conclude that read as a whole, the jury instructions in this case 

correctly stated the law of the case. We affirm the trial court and we 

dismiss the cross-appeal as moot.