Eskelson v. Davis Hosp. & Medical Center

2010 UT 59, 242 P.3d 762, 667 Utah Adv. Rep. 11, 2010 Utah LEXIS 160
CourtUtah Supreme Court
DecidedOctober 15, 2010
Docket20080484
StatusPublished
Cited by10 cases

This text of 2010 UT 59 (Eskelson v. Davis Hosp. & Medical Center) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eskelson v. Davis Hosp. & Medical Center, 2010 UT 59, 242 P.3d 762, 667 Utah Adv. Rep. 11, 2010 Utah LEXIS 160 (Utah 2010).

Opinion

242 P.3d 762 (2010)
2010 UT 59

Lonnie ESKELSON, on behalf of Jacob ESKELSON, a minor, and Lavon Eskelson, Plaintiffs and Appellants,
v.
DAVIS HOSPITAL AND MEDICAL CENTER and Jonathan Apfelbaum, Defendants and Appellees.

No. 20080484.

Supreme Court of Utah.

October 15, 2010.

*763 Dennis A. Gladwell, Lorraine P. Brown, Ogden, for plaintiffs.

Robert G. Wright, Zachary E. Peterson, Cortney Kochevar, Salt Lake City, for defendants.

AMENDED OPINION[*]

On Petition for Rehearing

PARRISH, Justice:

INTRODUCTION

¶ 1 Lonnie Eskelson sued Dr. Jonathan Apfelbaum on behalf of his four-year-old son Jacob, alleging that Dr. Apfelbaum perforated Jacob's eardrum during an attempt to extract a bead lodged in Jacob's ear. Mr. Eskelson appeals the district court's decision excluding his expert testimony and granting summary judgment in favor of Dr. Apfelbaum.

BACKGROUND

¶ 2 On May 24, 2004, Jacob Eskelson stuck a bead in his ear. His mother, Lavon Eskelson, first took Jacob to Wee Care Pediatrics, where a nurse practitioner attempted to remove the bead with a saline flush and soft curette. When this failed, Mrs. Eskelson took Jacob to the emergency room at Davis Hospital and Medical Center where Dr. *764 Apfelbaum unsuccessfully attempted to remove the bead with bayonet forceps and then with a soft curette. Because Jacob was becoming agitated during the procedures, Dr. Apfelbaum requested that Mrs. Eskelson restrain him. Mrs. Eskelson testified in her deposition that Jacob suffered intense pain during the procedure and that there was blood on the soft curette Dr. Apfelbaum used in attempting to extract the bead, both of which are signs of a perforated eardrum. The following day, Dr. Stoker, an ear nose and throat specialist, examined Jacob and discovered blood in his ear, but could not observe the tympanic membrane. Several days later, Dr. Stoker put Jacob under general anesthesia and removed the bead. At that time, he observed that Jacob's eardrum had been perforated.

¶ 3 Mr. Eskelson sought to introduce expert testimony from Dr. Kim Bateman to establish that Dr. Apfelbaum departed from the standard of care in three ways. First, before Dr. Apfelbaum's final attempt to remove the bead—the attempt when he allegedly perforated Jacob's eardrum—he should have informed Mrs. Eskelson of the potential consequences of attempted extraction. Second, Dr. Apfelbaum should have stopped the procedure when Jacob became agitated and difficult to control. Third, by continuing to attempt to extract the bead, Dr. Apfelbaum caused Jacob unnecessary pain.

¶ 4 Dr. Apfelbaum moved to strike Dr. Bateman's testimony on the grounds that it was purely speculative and it failed to meet the requirements of Utah Rule of Evidence 702. Dr. Apfelbaum also moved for summary judgment arguing that if the court struck Dr. Bateman's testimony, Mr. Eskelson would be without the expert testimony necessary to establish medical malpractice. After a two and a half hour hearing, the district court granted the motion to strike, finding that Dr. Bateman's testimony did not comply with rule 702. Specifically, the district court found that Dr. Bateman's testimony was not based on any scientific, technical, or other scientific knowledge, that his testimony would not assist the trier of fact, and that his methods were not generally accepted by the relevant scientific community. The district court then granted summary judgment in favor of Dr. Apfelbaum because Mr. Eskelson had no expert to establish that Dr. Apfelbaum breached the applicable standard of care.

STANDARD OF REVIEW

¶ 5 "The trial court has wide discretion in determining the admissibility of expert testimony. . . ." State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794 (internal quotation marks omitted); see also State v. Gallegos, 2009 UT 42, ¶ 12, 220 P.3d 136 (applying abuse of discretion review to district court's exclusion of expert testimony on relevancy grounds). Accordingly, we disturb the district court's decision to strike expert testimony only when it "exceeds the limits of reasonability." Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794 (quoting State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993)). Our review of the district court's exercise of its discretion "include[s] review to ensure that no mistakes of law affected a lower court's use of its discretion." State v. Barrett, 2005 UT 88, ¶ 17, 127 P.3d 682. Thus, if the district court erred in interpreting Utah Rule of Evidence 702 when it granted Dr. Apfelbaum's motion to strike, it did not act within the limits of reasonability, and we will not defer to the evidentiary decision. See Carbaugh v. Asbestos Corp., 2007 UT 65, ¶ 7, 167 P.3d 1063 (finding an abuse of the district court's discretion when an evidentiary decision was based on an erroneous interpretation of the law).

¶ 6 "We review a district court's decision to grant summary judgment for correctness, granting no deference to the district court's conclusions, and we view the facts and all reasonable inferences in the light most favorable to the nonmoving party." Bodell Const. Co. v. Robbins, 2009 UT 52, ¶ 16, 215 P.3d 933.

ANALYSIS

¶ 7 The district court excluded Dr. Bateman's testimony under Rule 702 of the Utah Rules of Evidence. Dr. Apfelbaum did not dispute that Dr. Bateman passed the initial qualification threshold under rule 702(a), and thus we assume that Dr. Bateman *765 possessed the requisite "knowledge, skill, experience, training, or education." Under Rule 702(b), the district court was required to determine if the specialized knowledge that formed the basis of Dr. Bateman's opinion was "reliable, . . . based upon sufficient facts or data," and was "reliably applied to the facts of the case." The district court found that Dr. Bateman's testimony was not based on sufficient facts or data and therefore his specialized knowledge could not be reliably applied to the facts of the case. Additionally, the district court found that Dr. Bateman's testimony would not assist the trier of fact because "[u]nsupportable expert testimony is not helpful to the jury." After striking Dr. Bateman's testimony, the district court then granted Dr. Apfelbaum's motion for summary judgment on the grounds that Mr. Eskelson could not present a prima facie case of medical malpractice without expert testimony.[1] Thus, if the district court improperly excluded Dr. Bateman's expert testimony, it erred in granting Dr. Apfelbaum's motion for summary judgment.

¶ 8 We consider first whether Dr. Bateman based his testimony on reliable scientific, technical, or other specialized knowledge. We then consider whether Dr. Bateman supported his testimony with sufficient facts. Finally, after determining that the district court erred in excluding the testimony under Utah Rule of Evidence 702(b), we consider whether the court properly struck Dr. Bateman's testimony under rule 702(a) when it found that because the testimony was "unsupportable," it would not assist the trier of fact.

I. THE DISTRICT COURT INTERPRETED RULE 702 INCORRECTLY IN HOLDING THAT DR. BATEMAN'S TESTIMONY DID NOT APPLY SCIENTIFIC KNOWLEDGE

¶ 9 Rule 702, as amended in 2007, requires the court to consider several factors to determine whether to admit expert testimony.[2]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Gaines
2026 UT App 44 (Court of Appeals of Utah, 2026)
Smith v. Creech
2025 UT App 195 (Court of Appeals of Utah, 2025)
State v. Francis
2025 UT App 104 (Court of Appeals of Utah, 2025)
State v. Bowdrey
2024 UT App 113 (Court of Appeals of Utah, 2024)
S6 v. Wing Enterprises
2024 UT App 105 (Court of Appeals of Utah, 2024)
Hallett v. Tully
2024 UT App 90 (Court of Appeals of Utah, 2024)
State v. Kufrin
2024 UT App 86 (Court of Appeals of Utah, 2024)
Wakefield v. Gutzman
2024 UT App 76 (Court of Appeals of Utah, 2024)
Smith v. Volkswagen Southtowne
2022 UT 29 (Utah Supreme Court, 2022)
Phillips v. Skabelund
2021 UT App 2 (Court of Appeals of Utah, 2021)
Taylor v. University of Utah
2020 UT 21 (Utah Supreme Court, 2020)

Cite This Page — Counsel Stack

Bluebook (online)
2010 UT 59, 242 P.3d 762, 667 Utah Adv. Rep. 11, 2010 Utah LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eskelson-v-davis-hosp-medical-center-utah-2010.