De Adder v. Intermountain Healthcare, Inc.
308 P.3d 543
Utah Ct. App.2013Background
- Donalda De Adder had a total right knee replacement at an Intermountain Healthcare (IHC) facility in March 2004 and received continuous passive motion (CPM) therapy post‑op.
- She developed signs of right peroneal nerve injury (foot drop) three days after surgery; her surgeon, Dr. Richard T. Jackson, attributed the injury to prolonged pressure from the CPM device.
- De Adder sued IHC for negligence in monitoring/managing the CPM device and designated Dr. Jackson as her sole expert on the post‑operative nursing standard of care and causation.
- IHC moved for summary judgment arguing De Adder failed to present admissible expert testimony establishing the nursing standard of care and breach; district court excluded Dr. Jackson’s testimony on that subject as insufficiently founded.
- The district court granted summary judgment for IHC because, without a qualified expert on the nursing standard, De Adder could not establish a prima facie malpractice claim; De Adder appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Dr. Jackson qualified to testify about the nursing standard of care for CPM therapy? | Dr. Jackson stated he was familiar with the applicable standard and his affidavit/opinion sufficed as a threshold under Rule 702. | Dr. Jackson is an orthopedic surgeon with no nursing training or experience and gave only conclusory opinions without foundational facts. | Court excluded Dr. Jackson: his assertions lacked specific factual foundation showing knowledge of nursing standards or that nursing and surgical standards are the same. |
| Could the district court evaluate expert qualifications at summary judgment without a separate Rule 702 motion/hearing? | Court erred by conducting a Rule 702 inquiry sua sponte and denying an evidentiary hearing. | The Rule 702 analysis was plainly raised by IHC’s summary judgment motion and by De Adder’s own submissions; no separate motion or hearing was required. | Court properly exercised discretion to assess admissibility at summary judgment and decline an evidentiary hearing. |
| Did Rule 702’s post‑2007 “threshold showing” standard eliminate the need for factual foundation in expert affidavits? | The amended Rule 702 requires only a threshold reliability showing, and Dr. Jackson’s statements met it. | Even under Rule 702, the expert must provide factual support; Butterfield still requires specific evidentiary facts to survive summary judgment. | Court applied the correct standard: the expert must make a factual, not merely conclusory, showing of qualification and reliability. |
| Was summary judgment appropriate given exclusion of expert testimony? | Excluding Dr. Jackson was error; thus summary judgment was improper. | Without admissible expert proof of the nursing standard of care, De Adder cannot make out malpractice and summary judgment is proper. | Summary judgment affirmed because plaintiff failed to present admissible expert proof of the nursing standard of care. |
Key Cases Cited
- Black v. Allstate Ins. Co., 100 P.3d 1163 (Utah 2004) (standard for viewing facts on summary judgment)
- Butterfield v. Okubo, 831 P.2d 97 (Utah 1992) (expert affidavit must include specific evidentiary facts beyond conclusions)
- Jensen v. IHC Hosps., Inc., 82 P.3d 1076 (Utah 2003) (elements of medical malpractice claim)
- Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr., 242 P.3d 762 (Utah 2010) (Rule 702 gatekeeper role and ‘‘threshold showing’’ of reliability)
- Boice ex rel. Boice v. Marble, 982 P.2d 565 (Utah 1999) (trial court discretion over expert admissibility)
- Dikeou v. Osborn, 881 P.2d 943 (Utah Ct. App. 1994) (limitations on cross‑specialty expert testimony)
- Dairy Prod. Servs., Inc. v. City of Wellsville, 13 P.3d 581 (Utah 2000) (conclusory affidavits insufficient to create issue of fact)
- Turner v. University of Utah Hosps., 271 P.3d 156 (Utah Ct. App. 2011) (physician testimony about nursing care requires foundation)