2013 UT App 173

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

D ONALDA D E A DDER

, Plaintiff and Appellant,

v.

I NTERMOUNTAIN H EALTHCARE

, I NC

., Defendant and Appellee.

Opinion

No. 20110709

‐ CA

Filed July 11, 2013

Fourth District, Provo Department

The Honorable David N. Mortensen

No. 060401688

Randy S. Kester, Attorney for Appellant

Stuart H. Schultz, Suzette H. Goucher, and

Peter J. Baxter, Attorneys for Appellee

J UDGE S TEPHEN L. R OTH authored this Opinion, in which

J UDGES J. F REDERIC V OROS J R

. and M ICHELE M. C HRISTIANSEN

concurred.

ROTH, Judge:

¶1 Donalda De Adder appeals from the grant of summary

judgment in favor of Intermountain Healthcare, Inc. (IHC). We

affirm.

BACKGROUND

¶2 De Adder underwent total right knee replacement in March

2004 at an IHC facility. Prior to surgery and for two days post

‐ operation, De Adder did not have any symptoms of damage to her

right peroneal nerve or of palsy, also referred to as “drop foot” or

“foot drop,” in her right foot. On the third day following surgery,

however, De Adder began complaining of pain in her right lowerDe Adder v. IHC

1. As the district court recognized, there was a genuine issue about

whether and when De Adder showed signs of foot drop, but the

district court “determine[d] that the presence or non

‐ presence of

the foot drop is not material to the motion upon the basis brought

forward.” The parties do not challenge the court’s assessment, and

accordingly, we treat it as a nonmaterial dispute, accepting, for

purposes of appeal, De Adder’s position that she did not

experience any foot drop until three days post

‐ surgery, see Black v.

Allstate Ins. Co.

, 2004 UT 66, ¶ 9, 100 P.3d 1163 (explaining that “[i]n

reviewing a grant of summary judgment, an appellate court views

the facts in a light most favorable to the losing party” (citation and

internal quotation marks omitted)).

2. CPM is a type of physical therapy commonly ordered

following knee surgery. It is “[a] technique in which a

joint, usually the knee, is moved constantly in a mechanical

splint to prevent stiffness and to increase the range of

motion.” Random House, Inc., Dictionary.com Unabridged

, available at http://dictionary.reference.com/browse/continuous+

passive+motion (last visited June 27, 2013). CPM is carried

out by “a machine that is used to move a joint without

the patient having to exert any effort.” Jonathan Cluett, CPM

‐

Continuous Passive Motion

, A BOUT

. COM (June 15, 2009),

http://www.orthopedics.about.com/od/hipkneetreatments/g/cp

m.htm.

20110709

‐ CA 2013 UT App 173 2 extremity. De Adder’s orthopedic surgeon, Dr. Richard Taylor

Jackson, diagnosed permanent damage to the right peroneal nerve

and palsy to her right foot. 1 Dr. Jackson concluded that the damage

resulted from the use of a continuous passive motion (CPM)

device 2 that he had ordered as therapy for De Adder’s knee

following surgery. De Adder sued IHC, alleging that its nurses

were negligent in monitoring, managing, and maintaining the CPM

device. De Adder designated Dr. Jackson as her only expert witness

regarding the post

‐ operative standard of care required of nurses

attending a patient receiving CPM therapy following total knee

replacement surgery, the breach of that standard by IHC’s nurses,

and how the breach caused De Adder’s injuries.De Adder v. IHC

20110709

‐ CA 2013 UT App 173 3 ¶3 IHC moved for summary judgment. In its supporting

memorandum, IHC argued that expert testimony was essential to

a negligence claim of this sort and that De Adder had “failed to

produce expert testimony that [IHC] breached the standard of

care.” See generally Jensen v. IHC Hosps., Inc.

, 2003 UT 51, ¶ 96, 82

P.3d 1076 (“To prove medical malpractice, a plaintiff must establish

(1) the standard of care by which the [health care provider’s]

conduct is to be measured, (2) breach of that standard by the

[provider], (3) injury that was proximately caused by the

[provider’s] negligence, and (4) damages.” (citation and internal

quotation marks omitted)). Specifically, IHC contended that Dr.

Jackson could not provide the required expert testimony because

he does not practice in the same specialty as the nurses and his

deposition testimony did not otherwise establish a sufficient

foundation to admit his testimony about the standard of care

applicable to the nursing staff. See id. (“[T]he plaintiff is required to

prove the standard of care through an expert witness who is

qualified to testify about the standard.”).

¶4 De Adder opposed IHC’s summary judgment motion with

a Verified Expert Report from Dr. Jackson, which she attached to

her response. Dr. Jackson stated, “I am familiar with the standard

of care required of surgeons, assistants, post surgery nursing and

physical therapy care required [to] perform and manage a

successful result from [joint] surgeries.” According to Dr. Jackson,

this standard of care “requires [attendant hospital personnel] to

tim[el]y observe and detect malfunctioning, misplacement or any

failure of the CPM machine” through “diligent monitoring of

complaints of pain, discomfort and unusual symptoms.” Dr.

Jackson expressed his opinion, “[t]o a reasonable degree of medical

certainty,” that De Adder’s “injury occurred as a result of the

failure of attendant hospital personnel to properly monitor the post

operative condition of [her] right lower extremity” because De

Adder’s “injury resulted from prolonged pressure of the peroneal

nerve by an element of the CPM machine.” Dr. Jackson further

opined that De Adder’s injury could have been prevented “had

attendant hospital personnel acted within the standard of careDe Adder v. IHC

3. Following the grant of summary judgment, De Adder filed a

motion to amend the judgment, in which she asserted that the court

had erroneously applied the law of summary judgment. The

district court heard argument and denied that motion. In her notice

of appeal, De Adder indicates that she is challenging the court’s

ruling on the motion to amend as well as its summary judgment

decision. In her briefing to this court, however, De Adder does not

address the denial of her motion to amend, other than as

background for her summary judgment claim, and we therefore do

not consider it as a separate matter. Because it raises the same

issues as the grant of summary judgment in favor of IHC, it is

unlikely that our consideration of De Adder’s motion to amend

would yield a different result on appeal.

20110709

‐ CA 2013 UT App 173 4 regarding monitoring the use of the CPM machine, both function

and timing.”

¶5 At the hearing on the summary judgment motion, the

district court admitted into evidence all of Dr. Jackson’s affidavit

statements pertaining to the standard of care and his opinions

regarding the cause of De Adder’s injuries. The court also received,

upon the parties’ stipulation, a copy of Dr. Jackson’s entire

deposition. Finally, the court allowed De Adder to supplement the

record with Dr. Jackson’s post

‐ operative order for CPM therapy.

¶6 In a subsequent written order, the district court granted

summary judgment in favor of IHC on the basis that Dr. Jackson

was “not qualified to testify as an expert against [IHC] because he

is not knowledgeable about the standard of care” that applies to the

nurses who cared for her. The court explained that although a

doctor might be competent to testify about the standard of care

applicable to a nurse under certain circumstances, Dr. Jackson

could not do so here because his verified expert report and

deposition testimony failed to establish either that the standard of

care for a nurse was the same as for an orthopedic surgeon or that

Dr. Jackson otherwise had substantial knowledge of the standard

of care required of a nurse providing CPM therapy. 3 De Adder now

appeals.De Adder v. IHC

20110709

‐ CA 2013 UT App 173 5 ISSUES AND STANDARDS OF REVIEW

¶7 De Adder contends that the district court abused its

discretion in determining that Dr. Jackson’s testimony was

inadmissible to establish the nursing standard of care, thereby

rendering the grant of summary judgment inappropriate.

Specifically, De Adder asserts that “the trial court, under the guise

of a summary judgment proceeding, conduct[ed] a factual

determination as to the adequacy of Dr. Jackson’s credentials to

testify as to the standard of care applicable to [the] nurse.” She

claims the court did this by “initiat[ing] its own [Utah] Rule [of

Evidence] 702 examination” in the absence of a motion and briefing

on the issue and without conducting a formal hearing.

¶8 “We first address the court’s rulings related to the expert

testimony and then, given our conclusions on those issues, review

the trial court’s grant of summary judgment.” Boice ex rel. Boice v.

Marble

, 1999 UT 71, ¶ 6, 982 P.2d 565. “The trial court has wide

discretion in determining the admissibility of expert testimony

. . . . Accordingly, we disturb the district court’s decision [not to admit]

expert testimony only when it exceeds the limits of reasonability.”

Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr.

, 2010 UT 59, ¶ 5,

242 P.3d 762 (citations and internal quotation marks omitted).

Summary judgment is appropriate only when “there is no genuine

issue as to any material fact and

. . . the moving party is entitled to

a judgment as a matter of law.” Utah R. Civ. P. 56(c). We therefore

review a court’s summary judgment ruling for correctness. State ex

rel. School & Inst. Trust Land Admin. v. Mathis

, 2009 UT 85, ¶ 10, 223

P.3d 1119.

ANALYSIS

I. The District Court’s Rulings on the Admissibility of Dr.

Jackson’s Testimony

¶9 IHC’s motion for summary judgment challenged Dr.

Jackson’s qualifications to present expert testimony regarding theDe Adder v. IHC

20110709

‐ CA 2013 UT App 173 6 standard of care for nurses using the CPM device on the basis that

Dr. Jackson is an orthopedic surgeon with “no training or

experience as a nurse” or any experience with operating or

monitoring the CPM device. The district court agreed with IHC

and excluded Dr. Jackson’s testimony. Ordinarily, because of the

district court’s discretion in this area, we afford the court

considerable latitude in determining the admissibility of expert

testimony. Eskelson

, 2010 UT 59, ¶ 5. De Adder, however, contends

that the court’s determination of Dr. Jackson’s qualifications

involved impermissible fact finding at the summary judgment

stage of proceedings. Therefore, we are presented with a threshold

issue of whether the court properly evaluated Dr. Jackson’s

qualifications for purposes of the summary judgment motion.

A. The District Court Properly Evaluated Dr. Jackson’s

Qualifications as an Expert on the Nursing Standard of

Care.

¶10 To survive a motion for summary judgment, the nonmoving

party “must set forth specific facts showing that there is a genuine

issue for trial” through “affidavits or as otherwise provided” by

rule 56 of the Utah Rules of Civil Procedure. Utah R. Civ. P. 56(e);

see also Orvis v. Johnson

, 2008 UT 2, ¶ 18, 177 P.3d 600 (explaining

that when the nonmoving party bears the burden of proof at trial,

the moving party must show “that there is no genuine issue of

material fact” and “[u]pon such a showing,

. . . the burden then

shifts to the nonmoving party who ‘may not rest upon the mere

allegations or denials of the pleadings,’ but ‘must set forth specific

facts showing that there is a genuine issue for trial’” (quoting Utah

R. Civ. P. 56(e))). Specifically, to recover on a claim of medical

malpractice, “the plaintiff must produce expert testimony” to show

that there is at least an issue of fact regarding whether “the medical

professional’s negligence proximately caused the plaintiff injury.”

Butterfield v. Okubo

, 831 P.2d 97, 102 (Utah 1992).

¶11 In Butterfield

, the Utah Supreme Court addressed the

question of what a plaintiff must include in an expert affidavit withDe Adder v. IHC

20110709

‐ CA 2013 UT App 173 7 regard to the underlying data supporting an expert’s opinion in

order to withstand summary judgment. Id. at 102–03. The court

ruled that an expert affidavit must contain “specific evidentiary

facts” supporting the expert’s opinions and cannot “merely reflect[]

the affiant’s conclusions.” Id.

To hold that [the rules of evidence] prevent[] a court

from granting summary judgment against a party

who relies solely on an expert’s opinion that has no

more basis in or out of the record than [the plaintiff’s

expert’s] theoretical speculations would seriously

undermine the policies of Rule 56

. . . . The position

that an expert’s opinion that lacks any credible

support creates an issue of ‘fact’ is clearly untenable.

Id. at 103 (alterations and omission in original) (citation and

internal quotation marks omitted). This principle is as applicable

to an expert’s qualifications as it is to the reliability of the expert’s

opinion. For example, in Hubbard v. Wansley

, 2005

‐ CA

‐ 01055

‐ SCT,

954 So. 2d 951 (Miss. 2007) (en banc), the Mississippi Supreme

Court observed,

The law empowers a trial judge to determine

whether a proffered expert is qualified to testify and

does not restrict exercise of this power to the trial

stage only. That is, a judge has as much power to

resolve doubts on qualifications of proffered experts

during the summary judgment stage as he has

during the trial stage. And of course, the standard

which [the appellate court] must apply when

reviewing a trial judge’s decision to disqualify

remains unchanged—notwithstanding that the

decision was made during the summary judgment

stage. That is, this Court will determine whether the

trial judge abused his discretion.De Adder v. IHC

4. Hubbard v. Wansley

, 2005

‐ CA

‐ 01055

‐ SCT, 954 So. 2d 951 (Miss.

2007) (en banc), addressed the interrelationship between rule 56 of

the Mississippi Rules of Civil Procedure and rule 702 of the

Mississippi Rules of Evidence, which governs the admissibility of

expert testimony. Id. ¶¶ 9–13. Mississippi and Utah employ the

same standard for granting summary judgment. Compare Miss. R.

Civ. P. 56(c), with Utah R. Civ. P. 56(c). Moreover, Mississippi’s

evidence rule 702 is virtually identical in substance to Utah’s

version. Compare Miss. R. Evid. 702, with Utah R. Evid. 702(a)–(b).

20110709

‐ CA 2013 UT App 173 8 Id ¶ 11. 4 And our supreme court approved a similar approach in

Boice ex rel. Boice v. Marble

, 1999 UT 71, 982 P.2d 565, where it

explained that appellate courts afford broad discretion to a district

court’s ruling on the admissibility of expert testimony, even in the

context of a summary judgment ruling. Id. ¶¶ 6–7.

¶12 According to De Adder, however, rule 702 of the Utah Rules

of Evidence, which was amended in 2007, no longer demands that

an expert affidavit contain “specific evidentiary facts” showing the

expert’s knowledge of the standard of care as required by

Butterfield

. Rather, she contends, rule 702 requires merely a

“threshold showing” of reliability. To support her position, De

Adder relies on the Utah Supreme Court’s decision in Eskelson ex

rel. Eskelson v. Davis Hospital & Medical Center

, 2010 UT 59, 242 P.3d

762, which addresses the amended rule 702.

¶13 In Eskelson

, the Utah Supreme Court explained that rule 702

“‘assigns to trial judges a “gatekeeper” responsibility to screen out

unreliable expert testimony.’” Id. ¶ 12 (quoting Utah R. Evid. 702

advisory committee note). In its role as a gatekeeper, a trial court

should employ a “degree of scrutiny

. . . [that] is not so rigorous as

to be satisfied only by scientific or other specialized principles or

methods that are free of controversy or that meet any fixed set of

criteria fashioned to test reliability” but rather should look for

“only a ‘threshold showing’ of reliability.” Id. (quoting Utah R.

Evid. 702(b)–(c)). De Adder asserts that Dr. Jackson’s statements

that he was familiar with the standard of care and that the nurses’

breach of that standard caused De Adder’s injury were sufficient

to meet this threshold requirement.De Adder v. IHC

20110709

‐ CA 2013 UT App 173 9 ¶14 We disagree. The plaintiff in Eskelson sought to introduce the

testimony of Dr. Bateman to establish that Dr. Apfelbaum, the

emergency room physician who had surgically removed a bead

from the plaintiff’s son’s ear, had performed negligently. Id. ¶¶ 2–3.

There was no dispute that Dr. Bateman had the “‘knowledge, skill,

experience, training, or education’” to testify about Dr.

Apfelbaum’s standard of care. Id. ¶ 7 (quoting Utah R. Evid.

702(a)). The district court, however, granted summary judgment to

the defendant on the basis that “Dr. Bateman’s testimony was not

based on any scientific, technical, or other [specialized] knowledge

. . . and that his methods were not generally accepted by the

relevant scientific community.” Id. ¶ 4. The supreme court

reversed, concluding that because Dr. Bateman had established that

he had “experience with the removal of foreign objects from the

ears of children” and his opinion was based on facts contained in

the record, he had made a threshold showing of the reliability of

his expert opinion sufficient to survive summary judgment. Id.

¶¶ 15–16.

¶15 Thus, Eskelson does not seem to add anything of substance

to the analysis of the qualifications issue before us. See id. ; see also

Butterfield v. Okubo

, 831 P.2d 97, 102–03 (Utah 1992) (explaining that

an expert affidavit must contain “specific evidentiary facts”

supporting the expert’s opinions and cannot “merely reflect[] the

affiant’s conclusions”). While Eskelson specifically addresses the

threshold level of evidence on the reliability of an expert’s opinions

necessary to survive summary judgment, it does not undermine

Butterfield ’s holding that such a threshold showing must be made.

Both Eskelson and Butterfield establish that the proposed expert

must present some factual basis to meet the threshold requirements

of rule 702. De Adder has not satisfied this threshold burden with

regard to the qualifications of Dr. Jackson to testify as to the

applicable nursing standard of care.

¶16 In Utah, “a practitioner of one school of medicine is

[ordinarily] not competent to testify as an expert in a malpractice

action against a practitioner of another school” due to the “wide

variation between schools in both precepts and practices.” Dikeou v.

Osborn

, 881 P.2d 943, 947 (Utah Ct. App. 1994); see also MUJI CV302De Adder v. IHC

20110709

‐ CA 2013 UT App 173 10 (2d. ed. 2011), available at http://www.utcourts.gov/resources/muji

(requiring that a nurse be shown to have acted with the “same

degree of learning, care, and skill ordinarily used by other qualified

nurses in good standing providing similar care”). Although Utah

appellate courts have not yet addressed the application of this rule

to a situation where it is proposed that a doctor testify as to the

standard of care for a nurse, the underlying rationale seems to

support similar treatment. Rule 702 contemplates the testimony of

an expert having “knowledge, skill, experience, training, or

education” on the particular subject matter on which he or she

intends to opine. Utah R. Evid. 702(a). Nurses receive different

training, have different licensing qualifications, and fulfill different

functions in patient care than do doctors. See Sullivan v. Edward

Hosp.

, 806 N.E.2d 645, 658–59 (Ill. 2004) (“Physicians often have no

first

‐ hand knowledge of nursing practice except for [limited]

observations made in patient care settings. The physician rarely, if

ever, teaches in a nursing program nor is a physician responsible

for content in nursing texts. In many situations, a physician would

not be familiar with the standard of care or with nursing policies

and procedures which govern the standard of care.” (citation and

internal quotation marks omitted)); see also Turner v. University

of Utah Hosps.

, 2011 UT App 431, ¶¶ 16–17, 21, 271 P.3d 156

(observing that a doctor’s testimony about the nursing standard of

care might have been inappropriate because no foundation had

been laid under rule 702 to demonstrate that the physician was

familiar with the nursing standard of care but ultimately

concluding that its admission was harmless), cert. granted

, 280 P.3d

421 (Utah May 18, 2012) (No. 20120120); MUJI CV302 (2d. ed. 2011).

We therefore conclude that a doctor’s training as a physician is not

sufficient by itself to qualify him or her “to testify as an expert in a

malpractice action against” a nurse. See Dikeou

, 881 P.2d at 947.

¶17 However, there is an exception to the general rule that a

physician cannot testify as an expert against another provider who

has a different specialty. The exception applies when “a medical

expert witness brought in to testify on the applicable standard of

care

. . . is knowledgeable about the applicable standard of care or

[where] the standard of care in the expert’s specialty is the same as

the standard of care in the alleged negligent doctor’s specialty.” Id. ;De Adder v. IHC

5. The record contains only five pages of Dr. Jackson’s deposition,

which are attached as an exhibit to IHC’s reply to De Adder’s

opposition to the motion for summary judgment. Apparently, upon

the parties’ stipulation to have the district court review Dr.

Jackson’s full deposition testimony, the court accepted IHC’s copy,

(continued...)

20110709

‐ CA 2013 UT App 173 11 see also, e.g.

, Creekmore v. Maryview Hosp.

, 662 F.3d 686, 692–93 (4th

Cir. 2011) (finding no abuse of discretion where the doctor, who

testified about the nursing standard of care, “regularly perform[ed]

the procedure at issue

. . . and the standard of care for performing

the procedure is the same” for doctors and nurses (citation and

internal quotation marks omitted)); Staccato v. Valley Hosp.

, 170 P.3d

503, 504 (Nev. 2007) (per curiam) (stating that a physician is

“qualified to testify as to the accepted standard of care for a

procedure or treatment [by another health care provider] if the

physician’s

. . . experience, education, and training establish the

expertise necessary to perform the procedure or render the

treatment at issue”). A natural corollary, however, is that where the

physician proffered as an expert lacks the requisite familiarity with

the nursing standard of care for a particular procedure and his or

her field of expertise does not share a similar standard with the

nursing field at issue, the physician’s opinions are not admissible.

Pendley v. Southern Reg’l Health Sys., Inc.

, 704 S.E.2d 198, 203 (Ga. Ct.

App. 2010) (holding that the court did not abuse its discretion in

excluding a physician

‐ expert’s testimony on the standard of care

for the treating nurse where the doctor “did not train or practice as

a nurse, did not train nurses, did not supervise nurses outside of

normal nurse–physician interactions, and did not hold himself out

to be an expert in nursing or in the standard of care of nurses”);

Simonson v. Keppard

, 225 S.W.3d 868, 873–74 (Tex. App. 2007)

(concluding that the district court abused its discretion in allowing

the doctor to testify as to the standard of care for a nurse

practitioner where the doctor’s affidavit showed that he was not

familiar with the standard of care).

¶18 Although Dr. Jackson states that he is familiar with the

standard of care applicable to the nurses who attended to De

Adder, nowhere in his verified expert report or in his deposition 5De Adder v. IHC

5. (...continued)

which counsel had brought with her to the hearing, and even

marked it as exhibit 1 to the hearing. The transcript was apparently

then returned to IHC. However, other than the five pages, De

Adder has not included the deposition transcript as a part of the

record on appeal. See Utah R. App. P. 11(a), (c), (e) (explaining the

appellant’s duty to “take any

. . . action necessary to enable the

clerk of the trial court to assemble and transmit” to the appellate

court the complete record). Therefore, we consider only the

excerpts contained within the record.

6. But, as discussed below, Dr. Jackson did not appear to know

whether the nursing staff and the physical therapists had distinct

roles in the management of the CPM process or whether (and how)

their duties might overlap.

20110709

‐ CA 2013 UT App 173 12 does Dr. Jackson set out any facts that establish that he has either

training or experience to support that conclusion or that the

applicable nursing standard of care is the same or similar to the

standard applicable to his own specialty. See Butterfield

, 831 P.2d at

102 (requiring an affidavit to be supported with “specific

evidentiary facts”). He does not testify that he has worked or

trained as a nurse or that he has experience training nurses.

Instead, De Adder simply argued to the district court that Dr.

Jackson, by virtue of performing the knee surgery, acted as the

“captain of the ship,” who “knows the functions of each member

of the team” and is “in charge of delegating tasks

. . . [and]

determin[ing] what the proper procedures are.” De Adder’s

“captain of the ship” argument, however, only establishes that Dr.

Jackson knows each member of the medical team’s general

“obligations and duties” to successfully care for the patients and

“where one [team member]’s acts stop and the next person[’s]

begins,” 6 not that he is familiar with the particular standard by

which each team member is expected to carry out those obligations

and duties.

¶19 Furthermore, Dr. Jackson’s report opined, “The standard of

care of the attendant hospital personnel requires them to tim[el]y

observe and detect malfunctioning, misplacement or any failure ofDe Adder v. IHC

20110709

‐ CA 2013 UT App 173 13 the CPM machine,” which includes “diligent monitoring of

complaints of pain, discomfort and unusual symptoms.” “[H]ad

[the nurses] been timely in their attendant observation and

interaction with the patient, this prolonged pressure on the nerve

while attached to th[e CPM] machine, would not have occurred

and Ms. De Adder would not have suffered this injury.” Dr.

Jackson’s report and deposition testimony, however, do not include

facts that explain what it means to “tim[el]y observe” or

“diligent[ly] monitor[]” the CPM device. For example, Dr. Jackson

does not explain how frequently a nurse is required by the

applicable standard of care to check the CPM device’s operation.

Nor does he provide any description of how a nurse following the

proper standard should assess whether the patient has been

subjected to “prolonged pressure” in the course of treatment with

the CPM machine. Indeed, Dr. Jackson acknowledges in his

deposition that “I really don’t know what the protocol is now” for

CPM therapy because “I don’t order [the protocol]. I just order

CPM,” which he acknowledges is “done under the direction of the

physical therapy” by “the nurses on the floor.” In fact, he explains

that his post

‐ operative order for CPM “doesn’t say how often it

should be on and off the patient” but instead those decisions are

“left

. . . up to [physical] therapy.” And although De Adder argued

at the summary judgment hearing that Dr. Jackson merely

“misstate[d]” his role when he testified that he simply orders CPM

and leaves it to the physical therapists and nurses to perform, when

pressed on whether that “misstatement” was ever corrected, De

Adder indicated that a formal correction had not been made but

that other parts of the deposition supported his claim that he was

familiar with the standard of care in operating a CPM device. De

Adder then asked for leave to supplement the record with Dr.

Jackson’s post

‐ operative order and the entire deposition, which the

court granted.

¶20 The court subsequently reviewed both the order and the

deposition testimony and concluded that “Dr. Jackson fail[ed] to

provide the foundational basis whereupon this court can conclude

that he is competent to testify as to the standard of care for a nurse”

administering CPM. We agree. The post

‐ operative order simply

prescribes, “TKA Protocol: CPM to begin day of surgery.” AndDe Adder v. IHC

20110709

‐ CA 2013 UT App 173 14 nowhere in the portion of Dr. Jackson’s deposition transcript

included in the record (or elsewhere in the record) does he give any

indication that the term “TKA Protocol” in his order incorporates

or expresses a particular regimen or schedule of therapy. Because

De Adder has not included the full deposition transcript on appeal,

we presume that the remainder of the deposition testimony

supports the district court’s conclusion that there was a lack of

foundation for Dr. Jackson’s testimony on the nursing standard of

care. See Goodman v. Wilkinson

, 629 P.2d 447, 449 (Utah 1981)

(explaining that when the record is incomplete on appeal, appellate

courts presume the omitted portions support the district court’s

ruling).

¶21 Thus, the specific facts elicited in Dr. Jackson’s deposition

testimony substantially undermine the later statement in his expert

report that he is familiar with the nursing standard of care for

administering CPM therapy. And that conclusory statement,

unsupported by facts, cannot create an issue of material fact to

survive summary judgment. See Dairy Prod. Servs., Inc. v. City of

Wellsville

, 2000 UT 81, ¶ 54, 13 P.3d 581 (“An affidavit that merely

reflects the affiant’s unsubstantiated opinions and conclusions is

insufficient to create an issue of fact.”); see also Butterfield v. Okubo

, 831 P.2d 97, 103 (Utah 1992) (“The position that an expert’s opinion

that lacks any credible support creates an issue of fact is clearly

untenable.” (citation and internal quotation marks omitted)).

B. The District Court Did Not Otherwise Abuse Its Discretion

in Precluding Dr. Jackson from Testifying as an Expert.

¶22 De Adder nevertheless claims that the district court erred in

granting summary judgment because the court “initiated its own

[Utah] Rule [of Evidence] 702 examination” without a motion and

in the absence of any briefing on the issue. In support of her claim,

De Adder asserts that “[i]t was impossible for [her], in responding

to the Motion for Summary Judgment to have predicted that the

trial court would

. . . unilaterally conduct its own Rule 702

examination based on the summary judgment pleadings” where

IHC never “allude[d] to or mention[ed] Rule 702” in its

memorandum supporting its motion for summary judgment orDe Adder v. IHC

20110709

‐ CA 2013 UT App 173 15 made a “separate motion to strike Dr. Jackson’s affidavit or

evaluate the same under Rule 702.”

¶23 Although the best practice is for parties to identify the rule

upon which a motion is based, we are not convinced that “[i]t was

impossible for [De Adder]” to “predict[]” that the district court

would conduct a rule 702 assessment of Dr. Jackson’s

qualifications. In the introduction to its summary judgment

memorandum, IHC explained that it was entitled to summary

judgment because “Dr. Jackson is not qualified to testify regarding

the standard of care applicable to [IHC nurses]” and without such

an expert, De Adder could not succeed on her negligence claim as

a matter of law. In its argument section, IHC sets forth the standard

by which a medical professional’s expertise to testify about a

standard of care is judged and specifically addresses why Dr.

Jackson’s deposition testimony does not demonstrate that he is

qualified. Thus, based on the subject matter of the summary

judgment motion and IHC’s specific arguments, it was quite clear

that Dr. Jackson’s qualifications as an expert were at issue. And De

Adder, in fact, understood this. In her opposition to the motion for

summary judgment, De Adder argued the case for Dr. Jackson’s

qualification as an expert to testify as to the standard of care

expected of the nurses providing CPM therapy. Further, she

attached to her opposition memorandum Dr. Jackson’s verified

expert report, in which he asserted his familiarity with the nurses’

standard of care. Though the parties inexplicably omitted specific

reference to rule 702, both IHC’s arguments and De Adder’s

response invited the district court to consider Dr. Jackson’s

qualifications to render an expert opinion under the most directly

pertinent authority, rule 702. We therefore conclude that the district

court’s rule 702 analysis was both appropriate and entirely

predictable under the circumstances.

¶24 Furthermore, we cannot agree with De Adder’s argument

that she was improperly “precluded from seeking a Rule 702

hearing in which to conduct a more detailed examination of Dr.

Jackson and other witnesses to meet the burden imposed by the

court.” In a motion to amend the judgment, filed after the district

court’s ruling granting summary judgment to IHC, De AdderDe Adder v. IHC

7. Because IHC was seeking dismissal of De Adder’s claim based

on the lack of an expert, it was not necessary for it to file a motion

to strike Dr. Jackson’s expert report. Litster v. Utah Valley Cmty.

Coll.

, 881 P.2d 933, 936 n.2 (Utah Ct. App. 1994) (explaining that

(continued...)

20110709

‐ CA 2013 UT App 173 16 asked the court to conduct a rule 702 hearing, at which she would

“present [Dr. Jackson] and have him testify.” The district court

responded that such a hearing seemed both unnecessary and

improper. The court reasoned that at the summary judgment stage,

an expert affidavit need only contain information that indicates the

expert is qualified, and because the affidavit is not subject to cross

‐

examination, its contents are completely within the control of the

proffering party and the expert, who can include any information

relating to qualifications they deem pertinent. Further, the court

expressed concern about holding a hearing “to take evidence” as

part of a summary judgment proceeding. The district court’s

reluctance to conduct such a proceeding seems appropriate where

De Adder was aware of the basis for the summary judgment

motion and had the unimpeded opportunity to submit her expert’s

affidavit and any other pertinent evidence. That the affidavit lacked

factual support for Dr. Jackson’s purported familiarity with the

nursing standard of care is a result of De Adder’s choices in

crafting a response to IHC’s motion for summary judgment, and

she has not persuaded us that the district court was required to

conduct an evidentiary hearing to make up for deficiencies in that

response. Rather, holding such a hearing under the circumstances

would distort the established summary judgment process and

undermine its purposes. See generally Stevens

‐ Henegar Coll. v. Eagle

Gate Coll.

, 2011 UT App 37, ¶ 25, 248 P.3d 1025 (“A major purpose

of summary judgment is to avoid unnecessary trial by allowing the

parties to pierce the pleadings to determine whether there is a

genuine issue to present to the fact finder. In accordance with this

purpose, specific facts are required to show whether there is a

genuine issue for trial. The allegations of a pleading or factual

conclusions on an affidavit are insufficient to raise a genuine issue

of fact.” (emphasis, citation, and internal quotation marks

omitted)). Therefore, the court’s decision to deny De Adder’s

request for an evidentiary hearing was well within its discretion. 7De Adder v. IHC

7. (...continued)

where the “motion for summary judgment alone required the trial

court to address whether any affidavits submitted in opposition to

the motion” created issues of material fact, a separate motion to

strike or an objection to the affidavit itself were not required).

Accordingly, IHC’s failure to file a motion to strike Dr. Jackson’s

expert report or affidavit does not provide a basis for reversal, as

De Adder claims.

20110709

‐ CA 2013 UT App 173 17 II. The District Court’s Ruling on Summary Judgment

¶25 Finally, we address whether the district court correctly

granted summary judgment in favor of IHC. In a medical

malpractice case, summary judgment may be granted if a plaintiff

fails to present prima facie evidence of “the standard of care by

which the [health care provider]’s conduct is to be measured.”

Dikeou v. Osborn

, 881 P.2d 943, 946 (Utah Ct. App. 1994) (citation

and internal quotation marks omitted); see also Jensen v. IHC Hosps.,

Inc.

, 2003 UT 51, ¶ 96, 82 P.3d 1076 (“To prove medical malpractice,

a plaintiff must establish (1) the standard of care by which the

[health care provider’s] conduct is to be measured, (2) breach of

that standard by the [provider], (3) injury that was proximately

caused by the [provider’s] negligence, and (4) damages.” (citation

and internal quotation marks omitted)). A standard of care must be

established by an expert. Jensen

, 2003 UT 51, ¶ 96. Because we

conclude that there was no error in the district court’s decision that

Dr. Jackson’s expert testimony on the standard of care for the

nurses providing the CPM therapy was inadmissible, De Adder

could not make out a prima facie case of medical malpractice, and

summary judgment was proper.

CONCLUSION

¶26 De Adder did not present qualified expert testimony to

support her claim of medical negligence. We therefore affirm the

grant of summary judgment in favor of IHC.