Lead Opinion
opinion of the Court:
INTRODUCTION
1 This сase involves a medical malpractice lawsuit brought by Jerome Wilson and Leilani Wilson on behalf of their son, Jared. The Wilsons allege that employees of IHC Hospitals, Inc. (IHC) breached their duty of care during Ms. Wilson's labor and delivery of Jared. The Wilsons further claim that IHC's negligence caused Jared to suffer severe brain damage. The Wilsons tried their claims to a jury in 2008. The jury found that IHC did not act negligently.
$2 The Wilsons appealed based on legal errors committed during the trial and IHC cross-appealed. Of the issues raised on appeal, we find IHC's violation of the collateral source rule to be dispositive. To ensure enforcement of this well-established common-law rule, the Wilsons sought, and received, an in limine order excluding collateral source evidence at trial. But during trial, IHC persistently and deliberately violated the trial court's order. IHC's counsel made numerous, explicit references to collateral source evidence. He also referenced collateral source evidence by repeatedly asking witnesses about the "out-of-pocket expenses" the Wilsons had incurred in caring for Jared. IHC's trial tactics violated the in limine order, misled the trial court and substantially prejudiced the jury. We hold that the collateral source rule precludes both explicit reference and methodical allusion to collateral source benefits. Because IHC repeatedly disregarded the in limine order and violated the collateral source rule, we vacate the jury's verdict and remand this case to the trial court. |
3 To assist the trial court on remand, we address several additional issues raised by the parties. First, we clarify the circumstances under which opposing counsel may meet with a patient's treating physician. In cases where a treating physician is not an employee of a defendant, the physician must notify the patient prior to meeting ex parte with opposing counsel. However, where the treating physician is employed by a defendant and the defendant is alleged to be vicariously liable for the physician's conduct, it is permissible for defense counsel to meet with defendant's employee without notifying the plaintiff,. Second, we affirm the trial court's decision to exclude IHCs nurse training modules due to a lack of relevance. Finally, we reverse the trial court's decision to admit IHCs neonatal morbidity and mortality statistics because we find these statistics to be protected by the care review privilege.
I. JARED WILSON'S BIRTH
{4 Ms. Wilson became pregnant with her third child, Jared, in 1994. Because Ms. Wilson had experienced complications with her previous pregnancies, she selected a high-risk specialist, Dr. Joseph Glenn, as her doctor. On April 11, 1995, Ms. Wilson's water broke and Mr. Wilson drove her to IHC's Utah Valley Regional Medical Center (the Hospital) where she was admitted for observation. Because Jared was only twenty-five weeks in gestational age, Dr. Glenn recommended that Jared be delivered by cesarean section upon any signs of infection, labor, or fetal distress.
15 On April 19, 1995, Dr. Glenn went on vacation. He arranged for Dr. David Broad-bent and Dr. Steven MacArthur to care for Ms. Wilson in his absence.
T6 On April 20th, shortly after 8:15 a.m., the on-call nurse paged Dr. MacArthur to inform him that Ms. Wilson was completely dilated. When Dr. MacArthur arrived, he determined that vaginal delivery was imminent. Jared was delivered at 9:83 a.m.
T7 Approximately ten days after Jared's birth, Dr. Ronald Stoddard ordered an ultrasound of Jared's brain. The reviewing radiologist identified a hemorrhage in Jared's right cerebral hemisphere, marked dilation of his lateral ventricles, and bleeding in his periventricular soft tissues.
II. THE WILSONS MEDICAL MALPRACTICE LAWSUIT AGAINST IHC
T8 Approximately six years after Jared's birth, the Wilsons filed a complaint against IHC on Jared's behalf. The complaint alleges that, because IHC "failled] to deliver Jared by cesarean section on a timely basis, he suffered [brain] hemorrhages, resulting in permanent and severe brain damage which has produced the many disabilities from which he now suffers."
T9 The parties dispute the cause of Jared's brain hemorrhage. The Wilsons contend that the hemorrhage resulted from inadequate oxygenation of Jared's brain during vaginal delivery. They reason that Jared's brain would have remained properly oxygenated had he been delivered by cesarean seetion. IHC disputes the Wilsons' claim and argues that the hemorrhage occurred after Jared's birth, for reasons unrelated to vaginal delivery.
1 10 After lengthy discovery, this case proceeded to trial in 2008. Following a nineteen-day trial, the jury returned a verdict finding that IHC had not been negligent. The following events that occurred prior to and during trial are relevant to this appeal: (A) IHC cireumvented the trial court's in limine order excluding collateral source evidence, (B) IHC met ex parte with Jared's treating physicians, (C) the trial court excluded Dr. Fred Hyde's testimony, (D) the trial court excluded IHC's nurse training modules, and (E) the trial court determined that IHC's neonatal morbidity and mortality statistics did not qualify for the care review privilege. We discuss each of these below.
A. IHC's References to Collateral Source Evidence
T11 Prior to trial, the Wilsons filed a motion in limine, arguing that evidence of collateral source benefits is prejudicial and requesting that the court exclude evidence of the Wilsons insurance. The trial court granted the Wilsons' motion.
12 At trial, IHC repeatedly violated the in limine order by questioning witnesses
1 13 IHC also violated the in limine order by repeatedly referencing the fact that the Wilsons had not incurred any out-of-pocket costs in providing care for Jared. In total, IHC made ten references to the absence of any out-of-pocket expenses. These questions commenced during cross-examination of Jerome Wilson, Jared's father, who was the Wilsons' first witness. IHC asked Mr. Wilson five times about the out-of-pocket expenses he had incurred in caring for Jared. For example, IHC asked Mr. Wilson the following series of questions:
Q. (by IHC'S COUNSEL) Mr. Wilson isn't it true that in your deposition, in 2008, that you testified that your expenses were minimal?
A. (by JEROME WILSON) Yes.
Q. Okay. And when you were asked if they were around $100, you said, possibly a little more but not much?
A. Yes.
Q. All right. Thank you. And that was seven years into Jared's life.
A. Yes.
{ 14 On the next day of trial, IHC asked Ms. Fox about out-of-pocket expenses four times. For example, while questioning her about a possible gastrostomy for Jared, IHC asked, "do you know how much the parents will have to pay out-of-pocket for that procedure?" Ms. Fox responded "I do not put out-of-pocket costs in the life care plan." Several days later, IHC also questioned Dr. Paul Randle, the Wilsons' economist, about out-of-pocket expenses. IHC's most blatant reference to out-of-pocket expenses occurred during its closing argument, when IHC told the jury "[Jared is] getting the hospital and medical care he needs ... [alnd you have also heard that it's not costing the parents. They're not claiming one cent of out-of-pocket expenses."
15 Throughout trial, the Wilsons maintained that IHC's references violated the trial court's in limine order and they employed several tools in an attempt to mitigate the resulting prejudice. First, the Wilsons objected to IHC's questions. For instance, when IHC asked Mr. Wilson what out-of-pocket expenses his family incurred for Jared's wheelchair, the Wilsons' counsel stated "I'm going to object to this as a direct violation of the Court's order." The Wilsons similarly objected to IHC's references to government benefit programs and out-of-pocket expenses seven more times during the trial. Second, in an effort to stop IHC's repeated references to an absence of out-of-pocket expenses, the Wilsons stipulated that they were not claiming any out-of-pocket expenses. The trial court acknowledged the stipulation. Nevertheless, IHC continued to reference the absence of any out-of-pocket expenses and the availability of government benefit programs during the trial. And the Wilsons continued to object to these references, stating "[ylour Honor, it's irrelevant.... It's been stipulated to." Finally, the Wilsons moved for a mistrial. One of the grounds specified in support of the Wilsons' motion was that "[the collateral source rule, which the Court rule[d on] in response to our motion in liminel[,] ... was blatantly violated." But the trial court denied the motion.
B. IHC's Ex Porte Meetings With Jared's Treating Physicians
16 On February 21, 2003, an MRI was taken of Jared's brain at Primary Children's Medical Center. Dr. Richard Boyer, a physician employed by Primary Children's Neuro-radiology Department, reviewed the MRI. He concluded that the MRI showed that Jared's brain injury was "consistent with pre-term delivery ... [that] appears to be a combination of periventricular leukomalacia
T17 On April 9, 2003, IHC's counsel met ex parte with Dr. Boyer without providing any notice to the Wilsons. That same day, Dr. Boyer added an addendum to Jared's medical record, in which he noted that Jared's February 2008 MRI showed evidence that Jared suffered from a congenital brain defect, While Dr. Boyer's addendum was consistent with an earlier report in which he had indicated that a CT sean showed evidence of a congenital brain defect, the addendum was at odds with his finding that Jared's injury was consistent with inadequate oxygenation of the brain at the time of birth. Dr. Boyer later agreed to testify at trial as an expert for IHC.
1 18 In addition to meeting with Dr. Boyer, IHC's counsel also met ex parte with several of its employee-physicians who had treated Jared. These ex parte meetings involved Dr. Donald Stoddard, Dr. Steven Minton, and Dr. Steven Clark. These meetings also took place without any prior notice to the Wilsons.
C. The Trial Court Excluded Portions of Dr. Hyde's Expert Testimony
T 19 The Wilsons retained Dr. Fred Hyde as an expert witness. They sought to introduce testimony through Dr. Hyde about the standard of care for providing continuity of care when a physician leaves town; about IHCs market share; and about IHC's ability to use its market share to influence the opinions of physicians testifying in this case. The Wilsons intended to use Dr. Hyde's testimony to impeach Dr. Boyer and Dr. Min-ton. During a pretrial hearing, the trial court authorized Dr. Hyde to testify regarding continuity of care, but ruled that Dr. Hyde could not testify regarding IHCs market share and its ability to influence witnesses. Relying on rule 408 of the Utah Rules of Evidence, the trial court found that his testimony would "encompass[] a large collateral discussion" and "represent[ed] a large commitment of time and judicial resources." The trial court also determined that Dr. Hyde did not qualify as an expert regarding IHC's market share under rule 702 of the Utah Rules of Evidence.
D. The Trial Court Excluded Nurse Training Modules Due to Lack of Foundation
120 Before trial, the Wilsons requested that IHC produce any documents or records related to nursing protocols and nurse training. In response, IHC produced a variety of its policies, procedures, and protocols, along with a series of VCR tapes, responsive to the Wilsons' request. The Wilsons complained that IHC had failed to produce its nurse training modules. Thereafter, the Wilsons moved to introduce nurse training modules that their counsel had acquired in other litigation against IHC. The trial court denied the Wilsons' request, finding that the training modules were authentic, but lacked adequate foundation.
E. The Trial Court Admitted IHC's Neonatal Morbidity and Mortality Statistics
1 21 The Wilsons requested that IHC produce statistics for preterm babies born at the Hospital. Although IHC maintained mortality and morbidity statistics for its newborn ICUs, it refused to produce them, claiming they were privileged under section 26-25-3 of the Utah Code. The trial court disagreed, ordered their production, and received them into evidence over IHC's objection. °
III THE JURY'S VERDICT, POSTTRIAL MOTIONS, AND THE WILSONS' APPEAL
[ 22 The jury returned a verdict finding no negligence on the part of IHC, and the Wil-sons moved for a new trial. The Wilsons argued, among other things, that the trial court erroneously admitted collateral source evidence and that IHC's ex parte meetings with Jared's treating physicians prejudiced the jury's verdict. The trial court denied the Wilsons' motion. The Wilsons appealed based on legal errors committed during the trial and IHC cross-appealed. We have ju
STANDARD OF REVIEW
T23 The parties argue that a number of the trial court's evidentiary rulings were erroneous. Specifically, the Wilsons argue that the trial court erroneously failed to enforce the collateral source rule, permitted Jared's treating physicians to meet ex parte with opposing counsel, and excluded nurse training modules as irrelevant. And IHC claims that the trial court erroneously admitted IHC's neonatal morbidity and mortality statistics.
124 In reviewing these claims, we apply several different standards of review.
ANALYSIS
$25 The Wilsons identify five errors that they believe entitle them to a new trial. In particular, the Wilsons make the following claims: (1) the trial court erred in allowing IHC to repeatedly reference collateral source evidence, (2) the trial court erred in granting IHC's motion in limine to exelude portions of Dr. Fred Hyde's testimony,
26 IHC cross-appeals. IHC first appeals the trial court's decision to award costs only against Jared, instead of against Jared's parents. IHC also asks that we award it costs for the Wilsons' use of its trial transcripts on appeal.
1 27 We agree with the Wilsons that IHC's persistent and deliberate references to collateral source evidence in violation of the trial court's in limine order substantially prejudiced the jury. We therefore vacate the jury's verdict and remand for a new trial. We address the remaining issues raised by the parties to guide the trial court on remand.
I. IHC PREJUDICED THE WILSONS BY PERSISTENTLY AND DELIBERATELY INTRODUCING COLLATERAL SOURCE EVIDENCE
1 28 The Wilsons' complaint seeks compensatory damages for past, present, and future medical expenses associated with providing care for Jared. At the time of the trial, the bulk of Jared's medical expenses had been paid by private insurance and public benefit programs. The Wilsons were concerned that, if evidence of private insurance and public benefit program payments was presented at trial, the jury would infer that the Wilsons were seeking a double recovery, thereby prejudicing their case. To avoid this prejudice, the Wilsons filed a pretrial motion in limine asking the trial court to exclude collateral source evidence. The trial court granted the motion and ordered the parties to present "evidence on the subject of health insurance benefits outside the presence of the jury" and to redact health insurance benefits from exhibits submitted to the jury. IHC does not dispute the validity of this order in its cross-appeal.
129 The Wilsons argue that IHC repeatedly violated the in limine order by questioning witnesses about payments the Wilsons received from government benefit programs and by highlighting the lack of out-of-pocket expenses incurred by the Wilsons in providing care for Jared.
30 We address the parties' arguments in four separate sections. First, we hold that IHC made improper references to collateral source evidence at trial. Second, we conclude that IHC's references prejudiced the Wilsons. Third, we hold that the trial court's jury instructions failed to cure the prejudice suffered by the Wilsons. Finally, we conclude that the Wilsons did not forfeit their right to object to IHC's collateral source references on appeal through either waiver or the doctrine of invited error.
131 Under the common law collateral source rule, "a wrongdoer is not entitled to have damages, for which he is liable, reduced by proof that the plaintiff has received or will receive compensation or indemnity for the loss from an independent collateral source." Mahana v. Onyx Acceptance Corp.,
T 32 The Utah Legislature has recognized and statutorily modified the collateral source rule as it applies to medical malpractice cases. Urax CopE § 78B-3-405.
" 33 Our evaluation of whether IHC violated the collateral source rule requires us to address twо questions. First, we determine whether the Wilsons received collateral source benefits. Second, we analyze whether IHC's questions regarding these benefits and the absence of any out-of-pocket expenses violated the collateral source rule.
1 34 We begin by determining whether the Wilsons received collateral source benefits. In the context of medical malpractice cases, the Legislature has defined the phrase "collateral source" to include various types of "payments made to or for the benefit of the plaintiff." Id. § 78B-8-405(8). Two types are relevant here. First, collateral source payments include "medical expenses and disability payments payable under the United States Social Security Act, any federal, state, or local income disability act, or any other public program, except the federal programs which are required by law to seek subrogation." Id. §$ T78B-8-405(8)(a). Second, the phrase includes "any health, sickness, or income replacement insurance ... and any other similar insurance benefits ... whether purchased by the plaintiff or provided by others." Id. § 7T8B-8-405(8)(b).
€35 Both public and private collateral sources have made payments "to or for the benefit" of Jared. These include Medicaid payments made pursuant to the Social Seeu-rity Act, 42 U.S.C. §§ 1896 to 1896w-5, and assistance from the DSPD pursuant to seetion 62A-5-108(1) of the Utah Code.
137 The Wilsons' complaint seeks damages for, inter alia, past medical expenses incurred in providing care for Jared, as well as future anticipated medical expenses. Medical expenses are a form of compensatory damages.
138 How a plaintiff satisfies his medical expense obligations presents a separate issue that is irrelevant to calculation of his damages. A plaintiff may use one or more sources to pay his total medical expenses. For instance, a plaintiff may pay for medical expenses personally, out-of-pocket.
139 Two important conclusions are apparent. First, out-of-pocket expenses refers to how a plaintiff may pay for his medical expenses, but they are not a separate category of damages.
$40 There can be no dispute that IHC made repeated reference to collateral source evidence in violation of the collateral source rule. The transcript reveals at least four explicit references and ten implicit references. For example, IHC cross-examined Laura Fox, the Wilsons' life care planner, about the medical expenses included in her lifecare plan. In concluding its questioning, IHC asked Ms. Fox: "[AJre[you] aware that
{41 An example of IHC's implicit references to collateral source payments is found in its questioning of Jerome Wilson, who is Jared's father. IHC asked Mr. Wilson "we have your medical expenses, but we don't have the amount that you've paid for out-of-pocket expenses....I noticed that Jared had a [special] wheelchair as he came in here today[.] ... How much of that did you pay out of your pocket?" Mr. Wilson replied "[nlone." IHC also asked Ms. Fox questions regarding out-of-pocket expenses. For example, during its cross-examination of Ms. Fox, IHC again brought up Jared's wheelchair. IHC asked Ms. Fox "I note that you've included costs for a wheelchair replaced every five years. Are you aware that Mr. Wilson testified that there was no cost [for] the wheelchair Jared used the day he came into court?"
1 42 IHC also raised the absence of out-of-pocket expenses during cross-examination of Dr. Paul Randle, the Wilsons' economist. And IHC focused on the lack of out-of-pocket expenses in its closing argument. IHC's counsel stated "[Jared is] getting the hospital and medical care he needs ... [alnd you have also heard that it's not costing the parents. They're not claiming one cent of out-of-pocket expenses.... They have stipulated that there are no out-of-pocket costs. So you don't need to worry about that."
43 We cannot escape the conclusion that THC adopted a trial strategy of cireumvent-ing the trial court's in limine order by presenting forbidden collateral source evidence to the jury. We reach this conclusion based on IHC's consistent explicit and implicit references to collateral source evidence throughout trial.
Our conclusion is bolstered by IHC's inability to offer a legitimate purpose for the evidence. During a bench conference, IHC contended that out-of-pocket expenses did not relate to medical expenses. But IHC's questions indisputably related to Jared's medical expenses, and IHC consistently paired out-of-pocket expenses and medical expenses in the same question. For instance, IHC asked Dr. Randle if he was "informed that the plaintiffs have stipulated that there are not out-of-pocket expenses for medical in this case." Over the Wilsons objection, Mr. Randle was permitted to reply "I'm aware that insurance and/ or Medicaid ... have paid most of the expenses." Similarly, in cross-examining Mr. Wilson, IHC's counsel stated, "we have your medical expenses, but we don't have the amount that you've paid for out-of-pocket expenses." IHC then asked Mr. Wilson how much he had paid "out of [his] pocket" for Jared's "special wheelchair." Mr. Wilson replied that he had paid nothing for the wheelchair. By eliciting this response, IHC demonstrated that the Wilsons had incurred minimal personal expense in providing care for Jared. It also guided the jury to the inescapable conclusion that the Wilsons' medical expenses were paid for by collateral sources. Reference to the amount of collateral source payments a plaintiff has received is as violative of the collateral source rule as reference to the source of payment. Sheehy v. S. Pac. Transp. Co.,
{45 In summary, the Wilsons received assistance paying for Jared's medical expenses from collateral sources, including private insurers and public benefit programs. By developing testimony that the Wilsons had incurred nominal out-of-pocket expenses caring for Jared, IHC implied that the Wil-sons had received substantial collateral source benefits. IHC also made explicit references to collateral source evidence during
B. IHC's Statements in Violation of the Collateral Source Rule Prejudiced the Wilsons
$46 The Wilsons argue that "IHC hopelessly prejudiced the credibility of [their] case" by "improperly and inaccurately telling the jury [they] never paid one cent for Jared's care." We agree.
1 47 It has long been recognized that evidence of collateral source benefits "involves a substantial likelihood of prejudicial impact." See Eichel v. N.Y. Cent. R.R. Co.,
148 The Legislature implicitly recognized the prejudice that accompanies collateral source evidence in the Utah Health Care Malpractice Act. The Act requires that, a finding of liability and an awarding of damages by the trier of fact" the trial court shall "reduce the amount of the award by the total of all amounts paid to the plaintiff from all collateral sources" Urax CopE § 78B-38-405(1)-(2). But "[Inlo reduction may be made for collateral sources for which a subrogation right exists." Id. § 78B-83-405(1). It is significant that the Legislature placed authority to modify a damages award in the hands of the trial judge, after the jury has already reached its verdict. This procedure prevents the jury from hearing prejudicial collateral source evidence.
49 Courts have recognized that the prejudice resulting from collateral source evidence may impact both a jury's liability and damage determinations. Tipton v. Socony Mobil Oil Co.,
11 50 In Cates, the North Carolina Supreme Court held that the plaintiff's right to a fair trial was compromised by the admission of collateral source evidence.
151 The facts of this case are strikingly similar to Cates. Here, IHC made both explicit and implicit references to collateral source evidence throughout the trial. These included explicit statements that the Wilsons received collateral source benefits from Medicaid, DSPD, and other government-assistance programs and repeated references to the absence of any out-of-pocket costs incurred by the Wilsons. See supra T° 12-14, 40-42. And these references were emphasized in closing argument by IHC's counsel, who stated:
This also isn't a case about whether Jared is happy and well taken care of. That's not what this case is about. You've heard the testimony from Dr. Janzen that Jared is doing fine. He's ... receiving the care that he needs. He's receiving the schooling that he needs. He's getting the therapy he needs. He's getting the hospital and medical care he needs. He has the wheelchair that he needs. He has what he needs. And you have also heard that it's mot costing the parents. They're not claiming one cent of out-of-pocket expenses.
Throughout trial, IHC emphasized that the Wilsons had incurred nominal out-of-pocket expenses for providing care to Jared, but were also claiming nearly $800,000 in medical expenses. IHC's references were calculated to contrast the Wilsons' nominal out-of-pocket expenses with their claimed medical expenses and to emphasize that the Wilsons were seeking to profit from Jared's injuries by obtaining a double recovery. See Cates,
152 The trial court's rulings on the Wilsons' motion for mistrial and later motion for new trial do not upset this conclusion. The Wilsons have not asked us to review these rulings. And the rulings do not inform whether IHC's collateral source references prejudiced the Wilsons. In ruling on the motion for mistrial, the trial court made no findings or conclusions that prejudice did, or did not, result from IHC's collateral source references. Later, when addressing the motion for new trial, the trial court stated "I don't like what's happened but ... I draw the conclusion that it did not result in a substantial error prejudicial to the plaintiff." It is unclear whether the court meant that no substantial legal error occurred or that IHC's references, even if legally impermissible, had no prejudicial effect on the Wilsons. If the latter, the trial court made no factual findings with respect to prejudice to which we owe deference and, as we have explained, the trial court's legal determination that IHC's references to out-of-pocket expenses were somehow legitimate was erroneous.
153 IHC argues that the trial court cured any potential prejudice to the Wilsons by providing jury instructions that were consistent with the law and the parties' stipulation regarding out-of-pocket expenses. In particular, IHC notes that the jury instructions directed the jury to award damages that fully compensated the plaintiff and not to consider other possible sources of benefit. Similarly, IHC points out that the jury instructions identified that Medicaid and private healthcare insurers held liens on the Wilsons' potential recovery. Finally, IHC contends that the trial court properly instructed that the jury could consider evidence regarding future government benefits so long as those benefits are available irrespective of income.
154 "[In a proper case an appropriate instruction could eure the error" that results from improper introduction of collateral source evidence. Riddle v. Exxon Transp. Co.,
1 55 The trial court gave several instructions applicable to collateral source evidence. Instruction No. 48 states "[ilf you find fault that caused injury to the plaintiffs, you shall award damages in an аmount that fully compensates the plaintiffs. Do not ... consider any other possible sources of benefit the plaintiffs may have received. After you have returned your verdict, I will make whatever adjustments may be appropriate." Next, Instruction No. 50 states "(under the law, Medicaid and plaintiffs' healthcare insurers have liens entitling them to be reimbursed from any award in this case for the amounts which they have paid for past medical expenses incurred as a result of Jared Wilson's injuries." Finally, Instruction No. 51 notes that the jury could properly consider "evidence regarding governmental programs that may be of future benefit to the plaintiffs if such programs meet the limited criteria that they will be available irrespective of the recipient's ability to pay. Medicaid is not such a program, and may not be considered."
156 The trial court did not give these instructions to the jury until after closing arguments. But IHC had made references to collateral source benefits and out-of-pocket expenses throughout trial. In response, the Wilsons lodged nine separate objections.
57 In Finley, the defendant "purposeful ly brought up the subject of [plaintiff's] pension [, a collateral source payment,] three different times during his fifteen minute opening argument."
1 58 We similarly conclude in this case that IHC's references to collateral source evidence did not arise from either mistake or inadvertence. Rather, IHC's references to collateral source evidence were deliberate, persisted in the face of the Wilsons' repeated objections, and flaunted the court's in limine order putting the subject out of bounds. IHC made a strategic decision to raise the collateral source evidence as a " dominant theme running" throughout the trial We refuse to condone IHC's behavior by ruling that the jury instructions given at the close of trial cured the prejudice to the Wilsons.
D. The Wilsons Neither Waived Their Objection to IHC's Collateral Source References mor Invited the Error Committed by the Trial Court
159 IHC argues that the Wilsons have forfeited their right to challenge its collateral source references on appeal in two ways. First, IHC argues that the Wilsons waived any challenge to the collateral source evidence by stipulating that they had incurred no out-of-pocket expenses and by developing, through their own witnesses, targeted testimony regarding collateral source benefits. Second, IHC claims that the Wilsons invited the trial court's error by suggesting that any false impression arising from the reference to out-of-pocket expenses could be cured. We disagree.
1. The Wilsons Did not Waive Their Objection to IHC's Improper Collateral Source References
T 60 IHC argues that the Wilsons waived any claim of error by stipulating that they had incurred no out-of-pocket expenses and by soliciting from their own witnesses the most targeted statements of collateral source evidence. The Wilsons maintain that their references to collateral source evidence were merely an attempt to mitigate the prejudice arising from the collateral source evidence introduced by IHC. Specifically, they argue that IHC's violation of the collateral source rule forced them to explain why, despite receipt of collateral source benefits, they still suffered economic damages. We agree and hold that the Wilsons' attempt to mitigate the prejudice caused by IHC's collateral source references does not deprive the Wil-sons of their ability to raise the issue on appeal.
1 61 "Waiver is an intentional relinquishment of a known right." Meadow Valley Contractors, Inc. v. State Dep't of Transp.,
162 "[Thhe intent to relinquish a right must be distinct," id. at 942, "although
163 IHC argues that the Wilsons waived their right to object to collateral source evidence. Specifically, IHC contends that the Wilsons "stipulated to the absence of out-of-pocket expenses in front of the jury." But IHC's characterization of the Wilsons' stipulation is grossly out-of-context and borders on misleading. IHC's brief inaccurately suggests that the Wilsons entered the stipulation prior to any collateral source references by IHC and without regard to such references. The record clarifies, however, that the Wilsons entered the stipulation to mitigate damage caused by IHC's collateral source references.
164 The Wilsons called Mr. Wilson, Jared's father, as their first witness. During cross-examination, IHC asked Mr. Wilson five different questions designed to highlight the lack of any out-of-pocket expenses incurred by the Wilsons in providing care for Jared. The Wilsons objected to IHC's third question as a "direct violation of [the] Court's order."
1 65 Upon receiving the objection, the trial court held a bench conference outside the presence of the jury. During the conference, the Wilsons stipulated that they were not claiming out-of-pocket expenses. The trial court acknowledged that the stipulation made out-of-pocket expenses "irrelevant" and that there would be no claim for them. At the end of the conference, IHC told the court that it needed to ask Mr. Wilson if out-of-pocket expenses would be a claim. The trial court permitted the question even though the stipulation had rendered it irrelevant.
T 66 IHC then asked Mr. Wilson "in your deposition, you indicated that your out-of-pocket expenses were minimal. Is that correct?" The Wilsons again objected, reiterating that their stipulation rendered evidence regarding the amount of out-of-pocket expenses irrelevant. Nevertheless, the trial court permitted IHC to continue its questioning. In addition to their objections, the Wil-sons moved for a mistrial. The motion was based on several grounds, including that "[t]he collateral source rule, which the Court rule[d on] in response to our motion in limine .... was blatantly violated."
T67 In context, the Wilsons' stipulation and motion for mistrial do not evince an unequivocal intent to waive their right to appeal the admission of the collateral source
T68 IHC also complains that the Wilsons solicited the most targeted collateral source evidence from their own witnesses. IHC points to the following exchange between Mr. Wilson and the Wilson's counsel:
Q. (by the WILSONS® COUNSEL): Have the bulk of Jared's medical expenses been paid by health insurance or Medicaid?
A. (by JEROME WILSON): Yes.
According to IHC's brief, this targeted exchange occurred on the "first day of evidence" during "examination" of the trial's first witness by the Wilsons' own counsel. Thus, IHC suggests that the Wilsons introduced targeted collateral source evidence pri- or to any reference by IHC. But this is simply untrue. Rather, the Wilsons' counsel asked Mr. Wilson this question on the second day of evidence during redirect examination in order to rebut IHC's suggestion that the Wilsons were improperly seeking a double recovery. The question prompted the trial court to initiate a bench conference. During the conference, the Wilsons' counsel emphasized that IHC's references to out-of-pocket expenses had created a "false impression" that the Wilsons had not suffered any damages. The Wilsons also argued that they needed to examine witnesses regarding collateral source benefits and liens held by private health insurers and Medicaid to correct this false impression.
{ 69 In summary, the targeted question to Mr. Wilson occurred after IHC's numerous collateral source references. And the Wil-sons' arguments during the bench conference illustrate that the question was intended to mitigate the damage caused by IHC's violation of the in limine order. We therefore hold that the Wilsons' attempt to ameliorate the prejudice caused by IHC does not evince an unequivocal intent to waive their objection to the improperly admitted collateral source evidence.
2. The Wilsons Did not Invite Error by Attempting to Mitigate Prejudice Caused by IHC's Improper Collateral Source References
170 IHC also contends that the Wilsons' collateral source rule claim is barred by the invited error doctrine. Specifically, IHC claims that the Wilsons invited error by agreeing that any false impression concerning out-of-pocket expenses could be cured. As previously discussed, IHC's repeated references to the Wilsons' lack of out-of-pocket costs suggested to the jury that the Wilsons were seeking to obtain a double recovery. In response to this implication, the Wilsons suggested that the trial court advise the jury of the liens that collateral sources held against any judgment. We disagree with IHCs contention that such a suggestion invited any error.
¶ 71 "Our invited error doctrine arises from the principle that a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." Pratt v. Nelson, 2007 UT
172 The invited error doctrine serves two policy goals. First, the doctrine "discouragles] parties from intentionally misleading the trial court so as to preserve a hidden ground for reversal on appeal." Pratt,
173 IHC correctly notes that the Wilsons agreed that "any false impression concerning the absence of out-of-pocket expenses ... would be resolved by advising the jury of liens against any judgment [held] by Medicaid and insurers." The Wilsons made two statements to this effect. The first occurred during a bench conference. During the conference, the Wilsons explained that IHC's collateral source references created a "false impression" thаt they had not suffered damages. In response to the Wilsons' contention, the trial court stated "the false impression is going to be resolved" with the presentation of evidence about liens held on the Wilsons' recovery. The Wilsons replied "Itlhat's fine. If we can present it through the Blue Cross and Medicaid people, then that's fine."
T 74 The Wilsons made a similar statement the following day. Again, the statement was made during a bench conference discussing the propriety of IHC's out-of-pocket expense references. The trial court permitted IHC to ask "[wlhat [the Wilsons] would have to pay themselves, personally." The Wilsons responded "(then we have introduced insurance, which, as I indicated yesterday, I'm willing to do, but it's got to be the whole package."
175 IHC argues that these statements invited any error that may have been committed by the trial court. But, onee again, IHC takes the record out of context.
176 The Wilsons did not invite error because their agreement to enter lien evidence was made after and was, in fact, in response to improper collateral source evidence introduced by IHC. The Wilsons first agreed to the introduction of lien evidence during the redirect examination of their first witness, Mr. Wilson, after IHC had already made five references to out-of-pocket expenses during cross-examination. IHC's references violated the trial court's in limine order and the Wilsons duly objected. Despite the Wilsons objections, the trial court continued to permit IHC to make collateral source references. It was at this time, after IHC had introduced significant error into the trial, that the Wil-sons agreed to introduction of lien evidence in an effort to mitigate the damage caused by IHC. It is well-established that "a party does
177 We also note that application of the invited error doctrine in this case would not advance the policies supporting it. The doctrine is intended to prevent parties from "misleading the trial court so as to preserve a hidden ground for reversal on appeal" and to encourage parties to "raise any possible error at the time of its occurrence," thereby providing the trial court with "the first opportunity to address a claim of error." Pratt,
178 In summary, the Wilsons received collateral source benefits "to or for the benefit of Jared" from both private health insurance and public benefit programs. IHC made persistent and deliberate references to these benefits throughout the trial of this case. We hold that IHC's remarks violated the collateral source rule, disregarded the trial court's in limine order, and substantially prejudiced the Wilsons by erroneously suggesting to the jury that they were seeking to obtain a double recovery. We also conclude that the trial court's jury instructions, delivered after closing, came too late to cure the prejudice resulting from IHC's "persistent and studied attempts" to place collateral source evidence before the jury. Finally, contrary to IHC's claim, we hold that the Wilsons neither waived their challenge to collateral source evidence nor invited the trial court's error when they attempted to mitigate the prejudice caused by IHC's remarks. Accordingly, we vacate the jury's verdict and remand this case for a new trial.
II. GUIDANCE FOR THE TRIAL COURT ON REMAND
T79 IHC and the Wilsons raise several other issues on appeal. Because these issues will likely arise again on remand, we address them here to assist the trial court. UTaH R.App. P. 30(a) ("If a new trial is granted, the court may pass upon and determine all questions of law involved in the case presented upon the appeal and necessary to the final determination of the case."); see also State v. James,
1 80 We address the following three issues: (1) whether IHC's ex parte meetings with Jared's treating physicians were improper and prejudicial, (2) whether the trial court erred in excluding IHC's nurse training modules from evidence, and (8) whether the trial court erred in admitting the Hospital's neonatal morbidity and mortality statistics.
A. IHC's Ex Parte Meeting with Dr. Boyer, a Physician It Did not Employ, Was Improper, but Itis Ex Parte Meetings with Physicians It Employed Were Proper
4 81 We first consider whether it was appropriate for IHC's counsel to meet ex parte with Jared's treating physicians. During the course of this litigation, IHC's counsel met ex parte with Dr. Boyer, a physician it did not employ. IHC's counsel also met ex parte with Dr. Stoddard, Dr. Clark, and Dr. Min-ton, three physicians it employed (Employed
182 We address the permissibility of IHC's ex parte meetings with Dr. Boyer and the Employed Physicians separately. We conclude that it was improper for IHC to meet ex parte with Dr. Boyer without first notifying and obtaining consent from the Wilsons. But we hold that IHC's ex parte meetings with the Employed Physicians were permissible because the Wilsons were attempting to hold IHC vicariously liable for the physicians' conduct.
1. IHC's Ex Parte Meeting with Dr. Boyer Was Improper
¶ 83 We now turn to the issue of whether IHC's ex parte meeting with Dr. Boyer, who IHC did not employ, was permissible. The Wilsons contend that, by meeting ex parte with IHC's counsel, Dr. Boyer violated his fiduciary duty of confidentiality to Jared under Debry v. Goates,
184 A physician is bound by both a duty to preserve the "physician-patient testimonial privilege" and a "healthcare fiduciary duty of confidentiality." Sorensen,
185 In contrast, "[a] physician's duty of confidentiality encompasses the broad principle that prohibits a physician from disclosing information received through the physician-patient relationship." Sorensen,
[86 In Sorensen, we specifically considered whether a treating physician's ex parte communications with opposing counsel violated the healthcare duty of confidentiality. Id. 118. We held that "Dr. Barbuto's ex parte communications with opposing counsel in Sorensen's personal injury action [were] a violation of Dr. Barbuto's healthcare fiduciary duty of confidentiality." Id. 125. In reaching this conclusion, we emphasized that our holding did not foreclose opposing counsel "from obtaining relevant medical information from a treating physician." Id. 124. We noted that "[sluch information may still be obtained through traditional forms of formal discovery." Id.
87 In Sorensen, we identified two policy rationales supporting the requirement that a plaintiff's physician provide notice to the plaintiff before meeting ex parte with defense counsel. Id. 121. First, we reasoned that preventing ex parte communications without prior notice would protect the patient-physician relationship by providing the patient with "assurance that their candid responses to questions important to determining their appropriate medical treatment would remain confidential." Id. 122. Second, we acknowledged that "permitting ex parte communications between a treating physician and an opposing counsel would make it impossible for a patient or a court to appropriately monitor the scope of the physician's disclosures." Id. 1283. Monitoring the seope of communications between a treating physician and opposing counsel is important because
[aln unauthorized ex parte interview could disintegrate into a discussion of the impact of a jury's award upon a physician's professional reputation, the rising cost of malpractice insurance premiums, the notion that the treating physician might be the next person to be sued, and other topics which might influence the treating physi-clan's views.
Manion v. N.P.W. Med. Ctr. of N.E. Pa., Inc.,
188 In this case, Dr. Boyer, who was not an IHC employee, failed to provide Jared with notiee prior to meeting ex parte with IHC's counsel. As a result, Dr. Boyer violated his fiduciary duty of confidentiality.
[89 IHC argues that we should not apply our Sorensen decision, which was announced in 2008, to its ex parte meeting with Dr. Boyer, which occurred in April 2008. IHC contends that our decision should instead be governed by a Utah State Bar Ethics Advisory Opinion, which was approved by the Ethics Advisory Committee in May 1999.
190 We are unpersuaded by IHC's argument because the court of appeals' March 2000 decision in Debry superseded Opinion 99-03R and filled the gap identified by the Ethics Advisory Committee IHC
T91 This case raises the related question of what duties opposing counsel has if she wants to meet ex parte with a plaintiffs treating physician. This question was not directly addressed in either Sorensen or De-bry. Rather, both cases involved a direct lawsuit alleging that either a doctor or therapist had breached the duty of confidentiality to their patient during an underlying lawsuit. But the holdings of Sorensen and Debry implied that opposing counsel has a duty in the underlying lawsuit to neither instigate nor facilitate a treating physician's breach of the duty of confidentiality to his patient through an improper ex parte meeting. See id. ¶ 23; Debry,
192 In this case, Dr. Boyer incorrectly thought that he could meet ex parte with IHC's counsel without first notifying Jared based on his "accumulated body of understanding from visiting with attorneys." IHC's counsel met with Dr. Boyer and participated in Dr. Boyer's breach of the duty of confidentiality by failing to correct his misunderstanding of the law. By so doing, IHC's counsel breached its duty to refrain from conducting improper ex parte meetings and by encouraging disclosure of confidential information. While we recognize that IHC breached its duty, the record does not reveal in any detail the cireumstances of the breach. For instance, we do not know who initiated the ex parte meeting between IHCs counsel and Dr. Boyer.
198 Having determined that IHC acted improperly to some degree, we next consider the appropriate sanction.
$94 Selection of an appropriate sanction requires fact-finding combined with the exercise of discretion. Such a decision is best made in the first instance by a trial court. Accordingly, we decline to sanction IHC and instead grant leave to the trial court to consider on remand whether sance-tions are appropriate. In doing so, the trial court should consider argument from the parties regarding available and appropriate sanctions. In deciding whether sanctions are appropriate and the nature of any sanction it may impose, the court should consider, among other things, the willfulness of counsel's conduct; the degree to which its impropriety was apparent at the time; the likelihood that evidence or testimony was altered as a result of the meeting; the prejudice to the opposing party; and the detrimental effect of the ex parte contact on the trial and the judicial process. Upon hearing from the parties, completing its fact-finding, and assessing the extent of IHC's breach of duty, the trial court may exercise its "inherent power" and levy sanctions. Griffith v. Griffith,
2. IHC's Ex Parte Communications with Its Employed Physicians Were Proper Because Its Alleged Liability Derives From Their Conduct
T95 We next consider whether IHC's ex parte meetings with its Employed Physicians were appropriate under our decision in Sorensen. IHC contends that Soren-sen does not prohibit ex parte communications between a physician and his hospital-employer if a plaintiff alleges the hospital is vicariously liable for the physician's conduct. The Wilsons reply that carving a vicarious liability exception out of Sorensen would con-tradiet the policies underlying that decision, which include preservation of the patient-physician relationship and regulation of a treating physician's disclosures to opposing counsel. We agree with IHC.
T 96 We start by addressing the source of IHC's alleged liability in this case. The Wil-sons argue that they did not seek to hold IHC vicariously liable for the Employed Physician's conduct. But the broad language of
197 Because of its potential liability for their conduct, IHC may permissibly meet ex parte with the Employed Physicians. A hospital has the right to defend itself and may communicate with its employees to determine the extent of its vicarious liability for their conduct.
198 Permitting disclosure to a hospital-employer conforms with the settled expectations of patients. While the public correctly expects that information disclosed to a physi-clan will not be shared with third parties absent legal process, they do not have a similar expectation with respect to information shared between a physician and his hospital-employer. Because the patient has impliedly consented to disclosure and disclosure does not violate the settled expectations of patients, ex parte meetings with the Employed Physicians do not implicate the policy concerns we identified in Sorensen. Likewise, such meetings do not require prior notice to the patient Thus, we hold that IHC's ex parte meetings with the Employed Physicians were permissible to the extent that the Wilsons sought to hold IHC vicariously liable for the Employed Physicians' conduct.
199 The Wilsons also argue that permitting Jared's treating physicians to testify on behalf of IHC damages their credibility and prejudices their case. They assert that Sor-ensen created a per se rule that prohibits a physician from testifying for a patient's adversaries. In support of their position, the Wilsons cite a footnote in Sorensen that states "[al physician's ability to act as an expert for a patient's antagonist in litigation is ... limited" by his obligation to protect confidential medical information. Sorensen,
100 The Wilsons read too much into the footnote. Immediately following the passage cited by the Wilsons, we state "[al treating physician may still be called as a factual witness by a party opposing a patient in litigation." Id. Indeed, we go on to acknowledge that/ "[als part of that testimony, physi-clans are permitted to provide opinions regarding the medical information that has been released through rule 506(d)(1)." Id. In short, Sorensen does not support a per se rule preventing a treating physician from testifying as a fact witness on behalf of an opposing party.
T101 We also reject the Wilsons' argument on practical grounds. We acknowledge that it may be damaging if Jared's treating physicians testify on behalf of IHC. But we refuse to fashion a rule that would prevent a treating physician from testifying for the defense merely because the doctor's
{102 Next, the Wilsons contend - that IHC's ex parte meetings improperly influenced Dr. Stoddard's expert opinion. Specifically, they argue that when Dr. Stoddard testified on the ninth day of trial, he had not established an opinion regarding the cause of Jared's brain injuries. Then, on the eighteenth day of trial, after meeting ex parte with IHC, Dr. Stoddard testified that "there's nothing to support" Jared's theory of causation. While troubling, this allegation is not sufficient to upset our holding because it raises only a cireumstantial inference that IHC improperly influenced Dr. Stoddard. The Wilsons have not produced any direct evidence suggesting that IHC's counsel attempted to tamper with the substance of Dr. Stoddard's testimony through - bribery, threats, coercion, or collusion. And the Wil-sons retained the option of impeaching Dr. Stoddard by pointing out on eross-examination the ex parte meeting and subsequent change in testimony.
[103 In summary, IHC met ex parte with two categories of treating physicians, those it did not employ and those it did. IHC's ex parte meetings with Dr. Boyer, whom IHC did not employ, were improper. However, its ex parte meetings with the Employed Physicians were permissible to the extent that the Wilsons placed the conduct of the Employed Physicians at issue under a theory of viearious liability.
B. The Trial Court Did not Abuse Its Discretion in Excluding IHC's Nurse Training Modules
1104 We next consider whether the trial court abused its discretion when it refused to admit IHC's nurse training modules (Training Modules) into evidence. The trial court determined that the Training Modules were authentic, but denied their admission due to a lack of foundation. On appeal, the Wilsons contend that evidence is admissible when it is authentic and relevant. The Wil-sons claim that the foundation for evidence is sufficiently established whenever it is proven to be authentic and assert that the trial court acknowledged the authenticity and relevancy of the Training Modules. They therefore urge that the Training Modules should have been admitted. IHC responds that the Training Modules were not relevant because they applied to a different time period and to a different facility from the Hospital at issue here. We agree with IHC.
1105 The Wilsons correctly state the test for admissibility. But they misstate the relationship between foundation, authenticity, and relevance. Both authenticity and relevance are prerequisites to admissibility. Urag R. Evin. 402
{106 The parties do not dispute the trial court's finding that the Training Modules were authentic. But the Wilsons incorrectly claim that the trial court also found the Training Modules were relevant. It did not. In considering the Training Modules, the trial court stated "I understand there's a low threshold for relevance, but I need to get through foundation. - Respectfully, they're not received." Accordingly, we focus our analysis on whether the Training Modules had sufficient foundation to be relevant.
1107 Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Utax R. Evin. 401. In some instances, an item of evidence does not become relevant until preliminary facts have been established. Urtax R. Evin. 104(b) ("When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.") An item of evidence, therefore, may not become relevant if its proponent fails to prove the necessary preliminary facts.
108 Here, the Wilsons offered the Training Modules to show that IHC's nurses' "conduct was directly contrary to the Hospital's own written nursing protocols which required [it] to [nJotify [the] physician of presence of decelerations in [fetal heart rate] tracings." But the Training Modules appear on their face to be from Orem Community Hospital, not this Hospital. Moreover, Lisa Fullmer, the IHC employee responsible for labor and delivery training, testified that, at the time Jared was born, training in the labor and delivery unit at the Hospital was conducted by video. Ms. Fullmer also stated that no training modules existed at the Hospital at the time of Jared's birth In short, the Wilsons failed to establish that IHC used the Training Modules in the Labor and Delivery Unit at the Hospital. As a result, IHC did not establish the conditional facts required by rule 104(b) to lay the foundation necessary to link the Training Modules to the Wilsons' claims. We therefore hold that the trial court did not abuse its discretion by refusing to admit them as evidence of the nursing protocols in place at the Hospital.
1109 In the alternative, the Wilsons contend that the Training Modules provide "the best available evidence of IHC's 1995 nursing protocols and policies," and they "should have been received as secondary evidence." The Wilsons further claim that admission of the Training Modules would be consistent with the "concept" embodied in rule 1004 of the Utah Rules of Evidence. We disagree.
€ 110 Rule 1004 specifies the circumstances under which a court may admit secondary evidence of the contents of a writing. The rule authorizes presentation of "other evidence" when an original writing is not obtainable. Utax R. Evin. 1004. But this rule does not apply here because the Wilsons failed to establish that training modules for the Hospital ever existed in the first place. In short, the Wilsons may not offer the Training Modules as "other evidence" absent proof that an "original" existed at the Hospital and is no longer available.
T111 The trial court did not abuse its discretion by excluding the Training Modules as evidence of the Hospital's nursing protocols. To introduce the Training Modules for this purpose, the Wilsons needed to establish
C. The Hospital's Neonatal Morbidity and Mortality Statistics Are Privileged Under Section 26-25-1 of the Utah Code
{112 During discovery, the Wilsons requested that THC produce any information related to the outcome of preterm births at the Hospital. While IHC maintained neonatal morbidity and mortality statistics for the Hospital, it refused to produce them, claiming they were privileged under section 26-25-1 of the Utah Code. The trial court disagreed, ruling that these documents were not privileged. The trial court erred.
{113 The Legislature has created a "care review privilege." The privilege authorizes "[alny person, health facility, or other organization" to provide enumerated "persons and entities" with the following information: "interviews," "reports," "statements," "memo-randa," and "any other data relating to the condition and treatment of any person." Urax Cop® § 26-25-1(1)(a)-(£)(2001).
1114 Utah courts have twice addressed the care review privilege. In Benson v. I.H.C. Hospitals, Inc.,
1 115 The court of appeals addressed the steps a party must take to establish the care review privilege in Cannon v. Salt Lake Regional Medical Center, Inc.,
1] 116 The court of appeals then applied the rule to the defendant-hospital's claim that the care review privilege protected incident reports related to the plaintiff's claim. Id. ¶¶ 11, 18-24. The hospital had supported its privilege claim with an affidavit asserting the incident reports were created specifically for the hospital's Quality Assurance Department. Id. The affidavit also stated that the incident reports were used for the purpose of evaluating and improving the quality of health care at the hospital. Id. 112. Although the court of appeals found that the affidavit was sufficient to make a prima facie showing that the privilege applied, it concluded that the affidavit lacked "'the evidentiary basis necessary for the trial court to make its determination of the issue of privilege." " Id. ¶¶ 19, 21 (quoting Benson,
€ 117 Here, the trial testimony of Dr. Min-ton and Dr. Stoddard, along with our review of the data, convinces us that the Hospital's neonatal statistics qualify for the care review privilege. Dr. Minton and Dr. Stoddard both testified regarding the statistics. Dr. Minton testified that the Hospital gathers the statistics "for peer review, quality improvement, quality assurance, all of those mechanisms in order to give feedback to physicians and to staff." He also noted that the Hospital uses the statistics to identify "sudden changes in trends and increases in morbidity in a certain area or increased complications in a certain area or improvements in a certain area so we cаn go back and figure out what we are doing right" Similarly, Dr. Stoddard testified that the Hospital uses the statistics to "gauge [its] performance with [that] of other hospitals to find out if there are significant variations." This testimony establishes that the statistics are provided to statutorily authorized "peer review committees" and "in-house staff committee[s]." Urax Cope § 26-25-1(2)(e),(b) (2001). The testimony also shows that the Hospital uses the data for "study, with the purpose of reducing morbidity and mortality" and "improvement of ... health care rendered by {[the Hospital] Id. § 26-25-1(8)(a)-(b)..
1118 The statistics here differ from the incident reports at issue in Cannon. In Can-mon, the incident reports related to a single patient. In contrast, the material at issue here is a compilation of individual patient data. The statistics include morbidity and mortality data for the years 1995 through 1999. While they include the name, time of death, and diagnosis of individual patients, the individual data is compiled into an annual summary. Further, the Hospital compiles the annual data into summary tables. One table tracks cumulative mortality from a base year of 1986 to the current year. Another summarizes, for the period 1995 through 1999, whether an infant survived and, if so, tracks the infant's need for ventilation, surgery or feedings, its neurological outcome, and its length of stay in the intensive care unit.
119 In summary, the reports at issue in Cannon related to individual patients. But here, the Hospital has compiled the data on individual patients into summary form. And trial testimony supports that the Hospital uses the summaries for "peer review" and "quality improvement." - Because the evi-denee supports the conclusion that IHC prepared the statistics "specifically ... for review purposes," Benson,
120 The Wilsons next argue that, even if the neonatal statistics qualify for the privilege, IHC waived it. Specifically, the Wil-sons contend that IHC waived the privilege by sharing the statistics with patients and through Dr. Minton's and Dr. Stoddard's detailed references to the statistics in their depositions. But the Wilsons provide no ree-ord citations to support their claim that IHC
{121 Rule 24(@)(9) of the Utah Rules of Appellate Procedure states that the appellant's argument "shall contain the contentions and reasons of the appellant with respect to the issues presented ... with citations to the authorities, statutes, and parts of the record relied on." To satisfy rule 24(a)(9), the argument "must providе meaningful legal analysis" - W. Jordan City v. Goodman,
{122 The Wilsons also claim that IHC waived any privilege by publishing "its morbidity and mortality statistics for its newborn ICUs in a public 2003 Annual Report." This claim is without either factual or legal basis. Publication of an annual report cannot constitute waiver because the statute specifically authorizes release of "a summary of studies conducted in accordance with Section 26-25-1 ... for general publication." Utax Cop® § 26-25-2(2) (2001); see also id. § 26-25-1(5)(c) ("No liability may arise against any person or organization as a result of ... releasing or publishing a summary of these studies in accordance with this chapter."). And there is no evidence that IHC published the statistics in any event. The Annual Report referenced by the Wilsons refers to morbidity and mortality ratios for the Newborn Intensive Care Unit at the McKay-Dee Hospital Center, not the Hospital in which Jared was born. We therefore hold that, on remand, IHC's neonatal statistics are "privileged communications and are not subject to discovery, use, or receipt in evidence." Id. § 26-25-83.
CONCLUSION
1 123 During the trial of this matter, IHC's counsel adopted a strategy of persistently and deliberately referring to collateral source evidence. These references violated the trial court's in limine order, misled the trial court, and substantially prejudiced the Wilsons' case. As a result, we vacate the jury's verdict and remand this case to the trial court.
1124 While our decision to reverse rests on the collateral source rule, we address the remaining issues raised by the parties to provide guidance to the trial court on remand. We hold that IHC's ex parte meetings with its employed physicians were permissible so long as IHC could be held vicariously liable for their conduct. But we conclude that it was improper for IHC to meet ex parte with Dr. Boyer, a physician whom it did not employ, without first providing notice to the Wilsons. We also hold that the trial court did not abuse its discretion by excluding from evidence IHC's nurse training modules. Finally, we conclude that the trial court erred in permitting the discovery and admission of IHC's neonatal morbidity and mortality statistics inasmuch as these statistics are protected by the care review privilege.
Notes
. IHC filed a motion pursuant to rule 24(k) of the Utah Rules of Appellate Procedure requesting that we strike sections 4, 7, 10, 11, and 12 from the statement of facts in the Wilsons' opening brief. IHC's motion also asks that we assess attorney fees against the Wilsons. Rule 24(k) of the Utah Rules of Appellate Procedure requires briefs to be "free from burdensome, irrelevant, immaterial or scandalous matters." Furthermore, the rule provides that "[bjriefs which are not in compliance may be disregarded or stricken, on motion or sua sponte by the court, and the court may assess attorney fees against the offending lawyer." The decision to assess attorney fees under rule 24(k) is a matter of discretion. We decline to assess attorney fees in the instant case. But we have disregarded any facts presented in the Wilsons' brief that are irrelevant to our determination of the issues on appeal.
. We provide a standard of review only for the issues we address substantively.
. The trial court excluded Dr. Hyde's proffered testimony that IHC has a dominant market share in Utah County and could use its market power to influence the opinions of physicians testifying in this case. The trial court rooted its decision in rules 403 and 702 of the Utah Rules of Evidence. On appeal, the Wilsons reiterate the purpose for Dr. Hyde's testimony. They also explain that Dr. Hyde's testimony may permissibly show bias under rule 608(c) of the Utah Rules of Evidence. But their brief fails to address rule 403, rule 702, and the trial court's decision. Rule 24(a)(9) of the Utah Rules of Appellate Procedure states that the appellant's argument "shall contain the contentions and reasons of the appellant with respect to the issues presented ... with citations to the authorities, statutes, and parts of the record relied on." To satisfy rule 24(a)(9), the argument "must provide meaningful legal analysis." W. Jordan City v. Goodman,
. Because we remand for a new trial based on IHC's violation of the collateral source rule, it is not necessary for us to address the Wilsons' claim of cumulative error.
. Because we vacate the jury's verdict and remand this case for a new trial, we need not address whether the trial court erred by only awarding costs against Jared. See Uran R.CW.P. 54(d). Similarly, we need not address whether IHC should be awarded costs for the Wilsons' use of its trial transcriрts on appeal. See Utan R.App. P. 34(c).
. IHC asserts that the Wilsons failed to preserve the collateral source issue for appeal. Specifically, IHC claims that the Wilsons failed to make a timely, specific objection to the introduction of collateral source evidence and that the Wilsons' motion for mistrial did not preserve the issue. We are unpersuaded by IHC's claim. "An issue is preserved for appeal when it has been presented to the [trial] court in such a way that the court has an opportunity to rule on [it]." Patterson v. Patterson,
. The Wilsons filed their complaint on March 8, 2001. While the section at issue here has been amended, changed stylistically, and renumbered since the Wilsons filed their complaint, it has not been changed substantively. As a result, we refer to the current version of section 78B-3-405.
. The statute did not come into play in this case because the Wilsons did not receive a damages award.
. Ura Cope § 62A-5-103(1) (2001). We reference the version of section 62A-5-103 in effect in 2001, when the Wilsons filed their complaint, because the Legislature rewrote portions of the section in 2005. See id. § 62A-5-103.
. Compensatory damages seek to "place the plaintiff in the same position he would have occupied had the tort not been committed." Mahana v. Onyx Acceptance Corp.,
. We note that the trial court properly instructed the jury regarding medical expenses. The instruction stated "[eJconomic damages include reasonable and necessary expenses for medical and other care."
. An "out-of-pocket expense" is [aln expense paid from one's own funds." Brack's Law DictioNary 659 (9th ed. 2009)..
. We reject any contention that out-of-pocket expenses refers to a category of damages distinct from the Wilsons' medical expenses. Indeed, IHC consistently referred to out-of-pocket expenses in tandem with medical expenses. Infra T 44.
. And even if IHC had an independent purpose for developing out-of-pocket expense evidenсe, that evidence was not relevant. The Wilsons eliminated any potentially relevant purpose for examination regarding out-of-pocket expenses by stipulating on the fourth day of trial that they would not claim them. Despite this, IHC continued to make reference to out-of-pocket expenses on subsequent days of trial and in its closing argument.
. To the extent that our resolution of this issue required review of the trial court's denial of the Wilsons' motion for new trial, our review is for an abuse of discretion. See Sanpete Am., LLC v. Willardsen,
. Two of these objections came before the Wil-sons stipulated that they did not claim any out-of-pocket expenses, IHC's questions were, nevertheless, impermissible. It was not the stipulation that made them improper. Rather, the questions violated the pretrial in limine order prohibiting collateral source references.
. That IHC withdrew some of its questions in no way changes the fact that IHC continually attempted to present collateral source evidence to the jury. Moreover, it is undisputed that the trial court permitted IHC to present collateral source evidence over the Wilsons' objections in other instances.
. See also Stong v. Freeman Truck Line, Inc.,
. IHC notes a second instance where the Wil-sons '"'injected other specific collateral source evidence" into the trial. Specifically, the Wil-sons' counsel asked Ms. Fox "lis the $8,000 a year provided [by DSPD] paid to the Wilsons or is it paid to the people that come in to help." This question does not change our decision. The Wilsons were entitled to ask the question to mitigate the damage caused by IHC's references to out-of-pocket expenses.
. See also Mary M. v. City of Los Angeles,
. On these facts, we apply the invited error doctrine in a manner similar to our waiver doctrine. That is, we permit a party to respond to opposing counsel's errors without inviting error or waiving their right to appeal the issue.
. IHC argues that "the appeal of this issue as to Dr. Clark is moot .... [because] Dr. Clark was never called to testify." IHC also argues that "the appeal of this issue as to Dr. Minton is ... moot" because the trial court found that Dr. Minton's treatment of Jared "was not within the scope of care placed at issue." Even if IHC is correct, it is still necessary for us to address the propriety of IHC's meetings with the Employed Physicians because of IHC's ex parte meetings with Dr. Stoddard.
. We decline to address IHC's statutory argument because Utah appellate courts have twice held that rule 506 of the Utah Rules of Evidence supersedes section 78B-1-137(4). Sorensen v. Barbuto,
. Urax State Bar Apvisory Or 99-03 (1999).
. The trial court admitted into evidence an April 10, 2000 order issued by the Fourth District Court in an unrelated proceeding. That order permitted defense counsel to conduct ex parte meetings with a plaintiff's treating physicians, regardless of the employment relation ship between the defendant and the physician. The order contradicts the rule announced in Debry,
. The requirements of the physician's duty of confidentiality, as discussed in paragraphs 85-88, apply to physicians who are not employed by a defendant-hospital. A different rule applies to physicians who are employed by a defendant-hospital, as discussed in paragraphs 95-103.
. The Ethics Advisory Committee affirmed its opinion on rehearing in October 1999. Utan State Bar Etaics Apvisory Orinion Or. 99-03R (1999).
. Sorensen vacated Opinion 99-03 in 2008.
. IHC argues that Debry was not extended to cover ex parte meetings with treating physicians until the court of appeals decision in Sorensen v. Barbuto,
. - On cross-appeal, IHC asserts that a portion of Jury Instruction No. 39 is erroneous. IHC's claim relates to the last paragraph of Instruction No. 39, which states "(al physician has the duty to protect their patient's confidential information. Since at least March 2000, Utah law has required a physician to notify his patient before disclosing confidential records or communications to the patient's adversary in litigation." IHC argues that Instruction No. 39 is incorrect as a matter of law with respect to its ex parte meeting with Dr. Boyer. IHC is incorrect. As we have articulated, the court of appeals' decision in Debry required a treating physician to provide notice to his patient prior to meeting ex parte with defense counsel. Sorensen,
. IHC argues that any error associated with admission of Dr. Boyer's testimony was harmless. Specifically, IHC argues that "Dr. Boyer's testimony did not affect the verdict because the jury never reached causation." We disagree. We have reversed and remanded for a new trial on the independent ground that IHC violated the collateral source rule. Supra 178. And Dr. Boyer may testify on retrial. Accordingly, IHC may not avail itself of the harmless error rule.
. Because we hold that IHC permissibly met ex parte with its Employed Physicians, we need not address IHC's argument that the Wilsons waived any objection to ex parte meetings with the Employed Physicians.
. Our holding raises the following related issues: (1) whether a hospital-employer may permissibly engage in ex parte communications with physicians whose conduct is not a basis for the hospital's liability, and (2) whether a hospital-employer may permissibly communicate ex parte with non-physician employees about pending litigation where the hospital-employer may be vicariously liable for the employee's conduct and where the hospital-employer is not alleged to be liable for the employee's conduct. Because these questions were not presented here, we express no opinion on them.
. Certainly in cases where evidence tampering can be established, sanctions would be appropriate. Cf. Harlan v. Lewis,
. Rules 104, 401, 402, 901, and 1004 of the Utah Rules of Evidence were amended in 2011. We refer here to the version of those rules in effect in 2008, at the time the parties tried this case.
. See, e.g., State v. Fedorowicz,
. Our decision does not foreclose the Wilsons from offering the Training Modules for other appropriate purposes on remand.
. The Legislature amended sections 26-25-1 and 26-25-2 in 2002, 2003, and 2008. In this opinion, we rely on the version of the sections in effect in 2001 when the Wilsons filed their complaint. See Ura Cope § 26-25-1 (2001). While the Legislature has not amended section 26-25-3 since the Wilsons filed their complaint, we cite the 2001 version of the section for consistency.
. In their reply brief, the Wilsons assert that section 26-25-3 of the Utah Code is unconstitutional under the open courts provision, the separation of powers clause, and due process clause of the Utah Constitution and the due process clause of the United States Constitution. But they have failed to adequately brief any of these arguments. In support of their wide-ranging constitutional arguments, the Wilsons cite case law, but they provide nothing more. To satisfy rule 24(a)(9) of the Utah Rules of Appellate Procedure the appellant's argument "must provide meaningful legal analysis." W. Jordan City v. Goodman,
Dissenting Opinion
dissenting:
1125 Today the court overturns a jury verdict entered in a complex medical malpractice trial spanning three weeks, awarding plaintiffs a new trial based on the conclusion that defense counsel's references to collаteral source evidence prejudiced the jury and deprived plaintiffs of a fair trial. In remanding for a new trial, the majority also prescribes new standards to be applied in deciding whether to disqualify a witness as a sanction for a breach of fiduciary duty.
127 I am also troubled by the court's articulation of standards for disqualification of a witness who breached a fiduciary duty. Plaintiffs never sought to disqualify Dr. Boyer in the proceedings below, but called him as a witness in their case-in-chief, so the question whether Boyer should have been disqualified was waived and is not properly before us. And even if this issue were ripe for our decision, I would not feel comfortable articulating standards for disqualification of a witness as a sanction for breach of fiduciary duty. That is a matter governed by our rules of evidence and procedure, and best left to the process of amendment of our rules.
I
1128 In reversing and awarding a new trial, the majority first finds error in the trial court's response to defense counsel's references to collateral source evidence and then concludes that such error requires a new trial because of its prejudicial impact on plaintiffs' right to a fair trial. I disagree on both points. First, I would affirm the trial court's treatment of defense counsel's reference to collateral source evidence because the trial judge did everything within his power-and everything he was asked to do by plaintiffs' counsel at trial-to keep collateral source references from coming into evidence or from affecting the jury. Second, I would affirm the district judge's finding that the references to collateral source evidence at trial was insufficiently prejudicial to deprive plaintiffs of a new trial. That finding is entitled to substantial deference on appeal, yet the court makes only a passing reference to it. In light of that finding, I would affirm under an abuse of discretion standard, as the trial judge was in a much better position than we are to assess the impact on the jury of the handful of references to collateral source material in the course of a three-week trial.
A
1 129 The majority's finding of error in the trial judge's treаtment of collateral source evidence is rooted in its premise that "[slome errors may be too prejudicial for curative instructions to mitigate their effect, and a new trial may be the only remedy." Supre I 54 (quoting State v. Harmon,
T 1830 The majority's analysis is unsupported by the trial record as I understand it. It may be true that only two of the nine objections made by plaintiffs' counsel at trial were sustained by the trial judge. Supra 156. But almost all of the other objections were resolved by withdrawal of the question by defense counsel, leaving no need for a ruling on the objection or an immediate admonishing instruction.
€ 132 In light of the trial judge's rulings on the Wilsons' objections, the remaining references to collateral source material at trial were attorney statements or proposed questions to witnesses that were never answered. Those statements and unanswered questions, however, were not evidence, and the jury was properly instructed to disregard counsel's statements and questions. See infro T 141. The trial court's instructions to that effect, in fact, were the sum and substance of what the judge was asked to do to rectify these lingering remnants of references to collateral source material. We should not fault the judge for adopting the remedial measures requested by plaintiffs' counsel. Nor should we assume that the jury did anything but follow the court's instructions.
133 Thus, in my view the trial judge did all that he was appropriately asked to do in response to objections to defense counsel's questions about collateral source material, It may well be, as the majority suggests, that the court could have done more, but the fact of the matter is that plaintiffs' counsel never asked the trial judge to undertake additional curative measures. And since the trial judge was never asked to do so, he cannot in my view be reversed for failing to undertake further measures sua sponte.
134 The majority implicitly holds otherwise in concluding that the collateral source references at trial were too prejudicial to be overcome by curative instructions. Specifically, the majority faults the trial court for failing to give prompt instructions to the jury, noting that the "court did not give these instructions to the jury until after closing arguments." Supra 156. Yet no such instructions were requested at the time of counsel's objections, leaving us in no position to fault the court for failing to give them.
{135 In Utah and elsewhere, the judge's gatekeeping responsibility is defined and shaped by the objections and motions made by counsel.
{136 A trial judge should not be deemed to have erred when he sustains all viable evidentiary objections and no further relief is requested by counsel.
B
1137 I also dissent from the majority's finding of prejudice sufficient to sustain a new trial. Without reference to the trial court's own findings on the prejudice question, the court concludes that "IHC's trial strategy substantially prejudiced the Wil-sons' verdict-worthiness before the jury." Supra T51. Only after it has reached its own independent conclusion on this question does the majority make reference to the trial court's determination that the collateral source evidence "did not result in a substantial error prejudicial to the plaintiff." Supra 152. But instead of deferring to the trial court's finding, the majority glosses over the applicable standard of review, holding that "(tlhe trial court's ruling on the Wilsons motion for mistrial and later motion for new trial doles] not upset [our] conclusion [of prejudice]." Supra 152.
{138 That conclusion is problematic (not to mention backwards), as the trial judge had a front-row seat in the three-week trial culminating in the judgment before us on appeal, and thus a firsthand sense of the impact of the collateral source references on the fairness of the trial.
€139 Unlike the majority, I see nothing "unclear" in the trial court's conclusions on this issue. Supro 152. In context, there is no doubt about whether the court "meant that no substantial legal error occurred" or
"[ 140 I do not doubt that the presentation of "evidence of collateral source benefits 'involves a substantial likelihood of prejudicial impact."" Supra ¶ 47 (quoting Eichel v. New York Cent. R. Co.,
141 Finally, I cannot agree with the majority's conclusion that the trial court's jury instructions were not enough to cure any latent prejudice. See supra 156. Even if the trial court's actions were not perfectly or immediately curative, they were sufficient and timely. As noted above, the trial court sustained objections where necessary and correctly instructed the jury on issues of evidence and the collateral sourcе rule both before the trial commenced and immediately before the jury's deliberation. See supra 155. At the beginning of trial, the jury was instructed that "[s]tatements and arguments of lawyers are not evidence in the case unless made as an admission or stipulation of fact"
{142 We should presume that the jury followed these instructions. Our case law, in fact, prescribes a presumption to that effect absent "overwhelming" proof of the jury's inability to do so and "a strong likelihood that the effect of the evidence would be 'devastating' to the defendant." State v. Harmon,
II
11483 I also take issue with the court's decision to prescribe standards for disqualification of a witness (Dr. Boyer) for an alleged breach of fiduciary duty. That remedy was not sought below, as the Wilsons never moved to disqualify Dr. Boyer, but instead called him as a witness in their case-in-chief.
1144 That is reason enough to decline to proceed down the path the court follows today. But even if the question of disqualifying a doctor who breached a fiduciary duty were properly presented, I still would not agree with the majority's decision. I read the rules of evidence to occupy the field regarding the competency of a witness to testify.
{145 Today's decision strikes me as an effort to sidestep those procedures in the interest of punishing what the court sees as improper conduct by one of the parties. But the remedy for any breach of fiduciary duty lies outside the matters before us on this appeal, A remedy for any breach of fiduciary duty should be meted out in a separate suit filed on that claim.
1 146 As a general rule, a witness who has breached a fiduciary duty of confidentiality is not incompetent to testify, but simply subject to sanctions and remedies for the harm caused by the breach.
T147 The majority gets off on the wrong foot in asserting that this case presents the question whether IHC's ex parte meetings were "permissible" under the law governing a physician's fiduciary duties to his patients. Supra ¶ 83. That is not an issue before us on this appeal. This is not a case like Sorensen v. Barbuto,
4 148 Thus, the court ventures into advisory dicta in assessing whether and to what extent Boyer may have breached a fiduciary duty. That is a matter to be addressed, if at all, in a future case filed against him on a fiduciary duty claim. Under our rules of evidence and procedure as they currently stand, there is no basis for disqualifying Dr. Boyer from testifying on the basis of an alleged breach of fiduciary duty.
T 149 I do not doubt that this court possesses "inherent" judicial power to manage the parties and counsel in cases before the courts. Supra 194. But we have settled mechanisms for exercising that power when it impacts established rules of evidence and procedure. When we see a need to adapt our rules, we do so through a structured amendment process that involves the advisory committees we have appointed for that purpose, with time and opportunity for comments from the bench and bar in an orderly process of amendment. We follow that process for good reason. We should defer to that process if we see a need to adopt a new rule on sanctions against a witness or counsel or on competency of a witness to testify. I dissent from the court's decision to sidestep that process in its decision today.
. These instances include one-involving a question posed to Dr. Randle-that the majority cites as involving testimony given "[over the Wilsons' objection." Supra 144. This exchange did involve a problematic question about whether Ran-dle knew that the plaintiffs had "stipulated that there are no out-of-pocket expenses for medical [damages]." But the Wilsons' timely objection ultimately spurred defense counsel to voluntarily "withdraw the question," which in turn prompted a "thank you" from plaintiff's counsel, with no further request for a curative instruction or motion to strike. In this and many other instances, then, the court's failure to sustain the objection or immediately instruct the jury was not error, but merely an acknowledgment that an objectionable question had been withdrawn.
. - See State v. King,
. See Greer v. Miller,
. - See Rosert J. MartinEay Et aL, Appercate Practice & Proceoure, Cases & Matertats 101 (2d. ed. 2005) ("[The cases are legion in holding that if an
. Granted, there was one other set of requests made by plaintiffs' counsel that was rejected by the trial court-in the form of motions for a mistrial and for a new trial. The denial of those motions, however, rested principally on the trial judge's assessment of the prejudicial effect of the collateral source references on the jury, an assessment that I address below.
. See State v. Kohl,
. See Smith v. Fairfax Realty, Inc.,
. And this was not the only time the court considered this question. It reached the same conclusion in denying plaintiffs' mid-trial motion for mistrial.
. Attorney statements are not generally admissible as evidence. See State v. Horr,
. See also State v. Harmon,
. It appears that the Wilsons did not ask the trial court to preclude Dr. Boyer from testifying, but instead pressed only to be permitted to challenge his credibility on cross-examination by noting Boyer's ex parte communications with IHC and asking the jury to deem his testimony biased. And it appears that is exactly what the district court allowed and what happened at trial. Plaintiffs' counsel called Dr. Boyer as a witness and challenged him for meeting with IHC's counsel in a manner that was "unethical, illegal, and dishonest." Counsel challenged Boyer on this point at some length, indicating that the ex parte meeting was improper under Utah Supreme Court precedent.
If plaintiffs never sought to exclude Dr. Boyer, but only to be permitted to challenge his credibility on cross-examination by suggesting that he breached a fiduciary duty, then it cannot be error to have given plaintiffs exactly what they asked for.
. State v. King,
. See, eg., Utak R. Evin 601(a) ("Every person is competent to be a witness unless these rules provide otherwise.") (emphasis added).
. See, eg., Utak R. Civ. P. 37(e) (authorizing and suggesting the kinds of appropriate sanctions when a party violates a court discovery order).
. The court's decision to the contrary will likely generate extensive satellite litigation in medical malpractice cases. The focus of such cases ought to be the merits of the malpractice case. If the majority's suggested remedy is adopted, it will require trial courts to evaluate whether there was a breach of a fiduciary duty by a witness, who instigated the breach, to what extent that breach played into the evidentiary picture of the current trial, how the evidence impacts the case under the appropriate burden of proof, and what the appropriate remedy would be. These questions are at least arguably best resolved in a separate suit for breach of fiduciary duty. We should not be requiring such satellite litigation by judicial fiat. At a minimum, such a question ought to be addressed through the normal process of amendment to our rules of evidence and procedure.
. See R. Corum Manorum & Dez Benson, Manorum & Benson on Uta Evipence, 351-52 (2010-2011 ed.).
. Id. ('The question remains whether lawyers are incompetent to testify where disciplinary rules proscribe such testimony. The short answer is no."); see also Universal Athletic Sales Co. v. Am. Gym, Recreational & Athletic Equip. Corp.,