Taylor v. University of Utah

2019 UT App 14
THE UTAH COURT OF APPEALS
R ICHARD TAYLOR
AND DEANNE TAYLOR ,
Appellants,
v.
U NIVERSITY OF U TAH , U NIVERSITY HOSPITAL,
AND U NIVERSITY OF U TAH PHYSICAL
M EDICINE AND R EHABILITATION C LINIC,
Appellees.
Opinion
No. 20170678-CA
Filed January 17, 2019
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 140903769
James W. McConkie, Bradley H. Parker, and
W. Alexander Evans, Attorneys for Appellants
Curtis J. Drake and Parker A. Allred,
Attorneys for Appellees
JUDGE DIANA H AGEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and DAVID N.
M ORTENSEN concurred.
HAGEN, Judge:
¶1 	Richard Taylor and Deanne Taylor (the Taylors) appeal
the district court’s decision to exclude the testimony of their
causation expert in this medical malpractice case. The district
court ruled that the Taylors had not made a threshold showing
of 	reliability 	because 	the 	expert 	testimony 	was 	based 	on
insufficient 	facts 	and 	data. 	Because 	neither 	the 	expert’s
experience 	nor 	the 	relevant 	medical 	literature 	provided 	a

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20170678-CA 	2 	2019 UT App 14
sufficient factual basis to support the expert’s conclusion about
causation, we affirm.
BACKGROUND
¶2 	The Taylors’ daughter (the patient) was diagnosed at a
young age with a neurological disorder for which part of her
treatment 	was 	to 	receive 	intrathecal 	baclofen, 	a 	drug
administered by a catheter and pumped into the thecal sac
located around the spinal cord. In 2013, a neurosurgeon replaced
the patient’s pump, but not the catheter connected to the pump.
¶3 	About one month later, the patient experienced increased
spasticity in her legs, which can be a side effect of baclofen
withdrawal. The patient received an oral dose of baclofen in an
attempt to reduce the spasticity. A physician reassessed the
patient a few hours later, determined that there had been no
change 	of 	symptoms, 	and 	continued 	the 	oral 	dosages 	of
baclofen. The patient also underwent an x-ray examination,
which did not show any obvious problems with the pump or
catheter. The physician 	instructed the patient to return the
following day for further evaluation.
¶4 	On April 18, 2013, the patient “underwent a dye and
rotator study of the pump and catheter,” but the study showed
no obvious signs of a problem. Nevertheless, the physician
“thought an undetected problem with the pump and catheter
might still be possible.” At the same time, the patient had
difficulty 	keeping 	down 	the 	oral 	doses 	of 	baclofen 	due 	to
vomiting. After discussing the patient’s medical history and
symptoms with the neurosurgeon, the physician recommended
that the patient undergo surgery to replace both the pump and
catheter. 	The 	following 	day, 	the 	patient 	underwent 	the
replacement surgery and her intrathecal baclofen dosage was
reinstated. According to her sister, the patient was “back to
herself” by April 20, 2013.

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20170678-CA 	3 	2019 UT App 14
¶5 	In early May, a few weeks after the baclofen pump and
catheter were replaced, the patient began exhibiting “manic-like,
psychotic behavior.” The Taylors took the patient to a different
doctor (the expert) to monitor the patient’s baclofen treatment.
Initially, the expert concluded that the patient’s “manic-like
behavior was caused by baclofen overdose” and, at the expert’s
“direction, all baclofen was stopped by late May 2013.” The
expert later concluded that the patient’s change in behavior was
due to baclofen withdrawal rather than overdose.
¶6 	The 	Taylors 	assert 	that 	the 	patient 	suffers 	from 	a
permanent neurological disorder, encephalopathy, and allege
that the injury was caused by baclofen withdrawal that occurred
between April 18, 2013, and April 19, 2013, before the pump and
catheter were replaced. The Taylors sued the University of Utah,
University Hospital, University of Utah Physical Medicine and
Rehabilitation 	Clinic, 	and 	the 	agents, 	employees, 	and 	staff
employed with those institutions that were involved in the
patient’s baclofen treatment (collectively, the Defendants). To
support their theory of causation, the Taylors sought to present
expert testimony at trial. The expert’s testimony would explain
that her theory of causation was the following sequence of
events: “[b]aclofen withdrawal caused a metabolic disturbance,
which caused encephalopathy, which produced months-long
hallucinations and other abnormal behavior, resulting in or
causing permanent memory and cognitive function damage.”
¶7 	After deposing the expert, the Defendants filed a motion
in limine to exclude the expert’s testimony, arguing that the
testimony was not based on medical literature or her personal
experience and therefore could not satisfy the threshold showing
of reliability under rule 702 of the Utah Rules of Evidence. The
expert conceded in her deposition that “there is not a single
reported 	case 	of 	baclofen 	withdrawal 	in 	which 	the 	patient
remained stable throughout the episode and went on to suffer
permanent neurological injury” and that she “has never seen a
patient experience the injuries that [the patient] claims to have

Taylor v. University of Utah
20170678-CA 	4 	2019 UT App 14
suffered.” The expert also conceded that symptoms of baclofen
withdrawal generally subside within forty-eight hours after the
baclofen levels are reinstated and that baclofen withdrawal does
not result in permanent injury if the baclofen levels are properly
reinstated. The Defendants argued that, as a result, there “are no
facts or data to support [the expert’s] opinion” and that her
proposed testimony is “the very type of unreliable testimony
that Rule 702 is intended to prohibit.”
¶8 	The 	district 	court 	agreed 	with 	the 	Defendants 	and
excluded 	the 	expert’s 	testimony. 	The 	court 	concluded 	that,
because the expert “admits she has never seen [this injury] in her
practice” and has failed to provide medical literature “to support
the 	argument 	that 	encephalopathy—whether 	caused 	by 	a
metabolic disturbance or something else—can last more than 48
hours after therapeutic levels of baclofen are restored,” she
“does not have facts and data sufficient upon which to base her
opinions or to employ her method for evaluating the causal
connection in this case.”
¶9 	The Taylors appeal.
ISSUE AND STANDARD OF REVIEW
¶10 	The Taylors contend the district court erred in excluding
the expert’s “opinions on proximate cause pursuant to Rule 702
of the Utah Rules of Evidence on the ground that her opinions
were 	not 	based 	on 	facts 	and 	data 	sufficient 	to 	satisfy 	the
threshold showing of reliability.”1 “We review a district court’s
1. The Taylors also contend the expert’s testimony should not
have 	been 	excluded 	because 	the 	“principles 	and 	methods”
underlying her opinion were reliable. Specifically, they argue
that the expert’s opinion on causation was based upon “logical
deduction,” which is a “standard technique[]” that is “generally
accepted by the relevant community of medical experts.” But the
(continued…)

Taylor v. University of Utah
20170678-CA 	5 	2019 UT App 14
decision to admit or exclude expert witness testimony for an
abuse of discretion and will not reverse that decision unless it
exceeds the limits of reasonability.” KTM Health Care Inc. v. SG
Nursing 	Home 	LLC, 	2018 	UT 	App 	152, 	¶ 	28 	(quotation
simplified).
ANALYSIS
¶11 	We are asked to determine whether the district court
correctly ruled that neither the expert’s experience nor medical
literature supported the expert’s opinion regarding causation
under rule 702(b) or 702(c) of the Utah Rules of Evidence.
¶12 	District 	courts 	have 	“wide 	discretion 	to 	determine
whether expert testimony is admissible” under rule 702. KTM
Health Care Inc. v. SG Nursing Home LLC, 2018 UT App 152, ¶ 59
(quotation simplified). The role of the district court is to serve as
a “gatekeeper” and “screen out unreliable expert testimony.”
Eskelson v. Davis Hosp. & Med. Center, 2010 UT 59, ¶ 12, 242 P.3d
762 	(quotation 	simplified). 	District 	courts 	should 	therefore
“approach 	expert 	testimony 	with 	rational 	skepticism.” 	Id.
(quotation simplified).
¶13 	Rule 702 of the Utah Rules of Evidence governs the
admissibility of expert witness testimony. An expert who is
qualified “by knowledge, skill, experience, training, or education
(…continued)
district court did not exclude the expert’s testimony on the basis
that her principles and methods were not reliable. Instead, the
court concluded that the expert lacked sufficient facts and data
“upon which to base her opinions or to employ her method for
evaluating the causal connection in this case.” In other words,
the 	court 	did 	not 	determine 	that 	“logical 	deduction” 	is
necessarily an unreliable method, only that the expert lacked
sufficient facts and data to employ such a method.

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20170678-CA 	6 	2019 UT App 14
may testify in the form of an opinion . . . if the expert’s scientific,
technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.”
Utah R. Evid. 702(a). Before admitting such testimony, the judge
must 	determine 	that 	the 	proponent 	has 	made 	a 	threshold
showing of reliability. State v. Lopez, 2018 UT 5, ¶ 20, 417 P.3d
116.
¶14 	The threshold showing of reliability can be satisfied “if
the underlying principles or methods, including the sufficiency
of facts or data and the manner of their application to the facts of
the 	case, 	are 	generally 	accepted 	by 	the 	relevant 	expert
community.” Utah R. Evid. 702(c). Alternatively, the threshold
showing 	can 	be 	met 	“by 	establishing 	that 	the 	principles
underlying [the expert’s] testimony are ‘reliable, . . . based upon
sufficient facts or data, and . . . have been reliably applied to the
facts.’” Lopez, 2018 UT 5, ¶ 22 (quoting Utah R. Evid. 702(b)).
“What is required for a threshold showing of reliability will vary
depending on the complexity of the particular case.” Eskelson,
2010 UT 59, ¶ 15. For example, an expert witness testifying
“regarding 	his 	experience 	as 	a 	physician[] 	in 	dealing 	with
similar situations” as the patient in the underlying case does not
need to identify a specific methodology to opine on causation of
the patient’s injuries so long as the expert’s “exposure to a nearly
identical situation forms the basis of the expert’s opinion.” Id.
¶15 	Here, the district court ruled that the Taylors had not
made the requisite threshold showing under rule 702(b) because
the expert’s opinion was not “based upon sufficient facts or
data.” Utah R. Evid. 702(b)(2); see also id. R. 702(c) (providing
that, 	where 	the 	threshold 	showing 	is 	based 	on 	general
acceptance in the relevant expert community, “the sufficiency of
facts or data” must also be generally accepted). We agree.
Neither 	the 	expert’s 	experience 	nor 	the 	medical 	literature
provided a sufficient factual basis on which to base her opinion
that the baclofen withdrawal caused the patient’s injury.

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20170678-CA 	7 	2019 UT App 14
¶16 	The 	Taylors 	sought 	to 	offer 	the 	expert’s 	opinion 	of
causation based on her experience treating other patients with
baclofen 	withdrawal. 	Relying 	on 	her 	experience, 	the 	expert
claimed to know that baclofen withdrawal can cause metabolic
disturbances. 	She 	also 	claimed 	to 	know 	that 	metabolic
disturbances can cause permanent neurological injury, such as
encephalopathy. 	Employing 	“logical 	deduction,” 	the 	expert
concluded 	that 	encephalopathy 	can 	be 	caused 	by 	baclofen
withdrawal. 	Although 	such 	“logical 	deduction” 	may 	be 	a
reliable method when supported by sufficient facts or data, the
expert conceded in her deposition that “[n]one” of her patients
“have suffered any type of permanent injury from an episode of
[b]aclofen 	withdrawal 	. 	. 	. 	[or] 	overdose.” 	Thus, 	her 	own
experience did not provide her with “exposure to a nearly
identical situation” to form the basis of her opinion. See Eskelson,
2010 UT 59, ¶ 15.
¶17 	Nor 	did 	the 	expert 	provide 	any 	supporting 	medical
literature 	documenting 	examples 	of 	patients 	suffering
permanent encephalopathy caused, either directly or indirectly,
by baclofen withdrawal when the baclofen level was reinstated,
as it was in this case. To the contrary, the expert stated that she
had “looked for” but was not “aware of any case similar to [the
patient’s] reported anyplace in the [medical] literature.” Further,
the 	expert 	conceded 	that, 	according 	to 	medical 	literature,
“patients 	who 	suffer 	[baclofen] 	withdrawal 	typically 	have
symptoms resolved within 48 hours of having [b]aclofen levels
reinstituted.” In fact, “there is not a single reported case of
baclofen 	withdrawal 	in 	which 	the 	patient 	remained 	stable
throughout 	the 	episode 	and 	went 	on 	to 	suffer 	permanent
neurological injury,” such as encephalopathy.
¶18 	Because the expert’s opinion regarding causation of the
patient’s injuries was not supported by any personal experience
or 	medical 	literature, 	the 	district 	court 	did 	not 	exceed 	its
discretion 	in 	excluding 	the 	expert’s 	testimony 	for 	lack 	of
sufficient facts and data.

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CONCLUSION
¶19 	We 	conclude 	the 	district 	court 	did 	not 	exceed 	its
discretion when it excluded the expert’s testimony for lack of
sufficient facts or data. Accordingly, we affirm.