Sprague v. Avalon Care Center

2019 UT App 107
THE UTAH COURT OF APPEALS
C HERYL S PRAGUE,
Appellee,
v.
A VALON C ARE C ENTER ,
Appellant.
Opinion
No. 20180019-CA
Filed June 20, 2019
Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 140908104
Catherine M. Larson and Jennifer R. Carrizal,
Attorneys for Appellant
Karra J. Porter and Kristen C. Kiburtz, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and K ATE A PPLEBY
concurred.
MORTENSEN, Judge:
¶1 	After 	a 	six-day 	trial, 	which 	included 	testimony 	from
seventeen 	witnesses—almost 	half 	of 	whom 	were 	experts—a
nearly unanimous jury1 awarded Cheryl Sprague, individually
and on behalf of the heirs and estate of Morley Reed Sprague
(collectively, Sprague), a $2 million verdict against Avalon Care
Center (Avalon) for Sprague’s injuries and resulting wrongful
1. Although eight of eight jurors found that Avalon breached the
applicable standard of care, only seven found that Avalon’s
breach was the proximate cause of Sprague’s death.

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death. Avalon appeals, arguing that the trial court erred by
denying its motion for partial directed verdict and admitting
various expert testimony. We affirm.
BACKGROUND2
¶2 	Morley Sprague was an elderly man who suffered from
advanced multiple sclerosis (M.S.) and paralysis of his lower
extremities. As a result, he was confined to a bed or wheelchair
and was “unable to reposition himself while sitting or lying
down.” This placed Sprague “at serious risk for developing
pressure ulcers.”3
¶3 	In 2012, Sprague was admitted to Avalon, where he
stayed for twenty-nine days. When he arrived, Sprague suffered
2. “Our recitation of the facts is presented in the light most
favorable to the jury’s verdict, and comes from the testimony
and evidence developed at trial.” Utah Dep’t of Transp. v. Target
Corp., 2018 UT App 24, ¶ 3 n.2, 414 P.3d 1080, cert. granted, 425
P.3d 800 (Utah 2018).
3. Bedsores—also called pressure ulcers and decubitus ulcers—
are injuries to skin and underlying tissue resulting
from prolonged pressure on the skin. Bedsores
most often develop on skin that covers bony areas
of the body, such as the heels, ankles, hips and
tailbone. People most at risk of bedsores are those
with a medical condition that limits their ability to
change positions or those who spend most of their
time 	in 	a 	bed 	or 	chair. 	Bedsores 	can 	develop
quickly. Most sores heal with treatment, but some
never heal completely.
Bedsores 	(pressure 	ulcers), 	Mayo 	Clinic 	(March 	9, 	2018),
https://www.mayoclinic.org/diseases-conditions/bed-sores/symp
toms-causes/syc-20355893 [https://perma.cc/28QD-8BM5].

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from “a small, stage [one] pressure ulcer on his right buttock.”4
Avalon 	assigned 	Sprague 	a 	doctor, 	Scott 	E. 	Southworth; 	a
wound care nurse, Richard Fonoti; and other nurses and nurses’
aides. Southworth relied on Fonoti and the other nurses to keep
him 	informed 	about 	Sprague’s 	condition, 	particularly 	the
pressure ulcer.
¶4 	Within one month of being admitted to Avalon, Sprague’s
stage one pressure ulcer “had significantly deteriorated—to the
point where bone was exposed—and had become infected.”
Sprague’s family removed him from Avalon, but he never fully
recovered. Over the next twenty-two months, attempts to treat
the wound with surgery and antibiotics were unsuccessful and
Sprague 	died. 	His 	heirs 	and 	estate 	subsequently 	filed 	this
medical malpractice and wrongful death action.
Denial of the Partial Directed Verdict
¶5 	At trial, Sprague called expert witness Kevin Emmons—a
board certified wound care nurse and professor of nursing at
Rutgers University—to 	testify 	to 	the 	standard 	of 	care 	of 	a
wound care nurse. On direct examination, Sprague’s counsel
asked,
Based on the materials that you have reviewed,
and your understanding of wound care, have you
formulated any opinions to a reasonable degree of
medical 	probability 	with 	regard 	to 	what 	the
standard of care, or what the standard of care
would have been required of [Avalon] in treating
[Sprague’s] wounds?
4. Bedsores are divided into four stages, one being the least
severe to four being the most severe. Bedsores, Johns Hopkins
Medicine, https://www.hopkinsmedicine.org/health/conditions-a
nd-diseases/bedsores [https://perma.cc/D2LN-RHUK].

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Emmons answered, “Sure,” then expressed and explained those
opinions.
¶6 	Emmons 	opined 	that 	Avalon 	breached 	the 	minimum
standards of care in the following seven respects: (1) inadequate
turning of Sprague, (2) failure to minimize wheelchair time,
(3) failure to provide a ROHO cushion,5 (4) failure to provide an
air 	mattress 	sooner, 	(5) 	failure 	to 	provide 	qualified 	staff,
(6) failure to refer Sprague to a specialist, and (7) failure to
properly 	involve 	Sprague’s 	family 	in 	his 	care. 	Emmons
elaborated on each point by citing medical records, deposition
testimony, and other factual bases for his opinions. Emmons
“vigorously defended these opinions on cross-examination.”
¶7 	At 	the 	conclusion 	of 	Sprague’s 	case-in-chief, 	Avalon
moved for a partial directed verdict on five of the seven alleged
5. A ROHO cushion is
designed to reduce pressure sore (ischemic ulcer)
formation. 	The 	cushion 	uses 	air-fluid
interconnected 	cells 	to 	mimic 	the 	supportive
properties of water and reduce the incidence of
pressure sores. The technology employs four key
principles 	to 	achieve 	this 	end: 	six 	degrees 	of
freedom (cells are independent and can adapt to
the anatomy of the patient), low surface tension
(permits 	immersion 	into 	the 	cushion 	without
deforming tissue), constant restoring force (forces
and pressures pushing back against the patient are
kept constant at all points of contact), and low
friction 	and 	shear 	(the 	slick 	surface 	prevents
friction 	between 	the 	cushion 	and 	the 	patient’s
skin).
J.C. Oleson, The Punitive Coma, 90 Cal. L. Rev. 829, 868 n.219
(2002).

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breaches.6 Avalon argued that Emmons’s testimony had not
established each alleged breach of the standard of care to a
reasonable degree of medical probability. The trial court denied
the motion. The court agreed that it was Sprague’s burden to
prove the elements to a reasonable degree of medical probability
but that “Emmons’s testimony either explicitly or implicitly met
that standard based on its totality.”
Expert Witness Testimony7
¶8 	Sprague’s 	counsel 	elicited 	extensive 	testimony 	from
Southworth—Sprague’s treating physician at Avalon—on direct
examination. 	Among 	other 	things, 	Southworth 	answered
questions 	related 	to 	the 	seven 	alleged 	duties 	and 	breaches
discussed 	by 	Emmons. 	During 	this 	line 	of 	questioning,
Southworth was asked, “So these seven [duties and breaches],
you 	would 	agree, 	are 	basic 	standards 	of 	care 	for 	treating
patients, such as [Sprague], that have existing pressure ulcers[?]”
Avalon objected on the ground that Southworth was not a nurse
and 	therefore 	could 	not 	provide 	expert 	testimony 	on 	the
standard of care of nurses. The court partially sustained the
objection and provided the following jury instruction:
So I’m going to allow him to answer the question,
but I want to explain something to the jury. You’re
going to be asked to make determinations as to the
nursing 	standard 	of 	care 	in 	this 	case. 	Dr.
Southworth is not a nurse, okay? I’m going to
6. Avalon concedes that the standard of care and breach were
sufficient to support a prima facie case with respect to Avalon’s
failure to provide a ROHO cushion and its failure to involve
Sprague’s family in his ongoing care.
7. We recite the following expert witness testimony in the same
order as the issues have been presented on appeal rather than
the order in which the witnesses actually testified at trial.

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allow him to answer these questions for the limited
purpose of answering the question as far as his
knowledge as a doctor about wound care. But as I
said, later in the case you’re going to hear from
experts 	who 	are 	going 	to 	talk 	about 	nursing
standard of care, and that is what is applicable in
this case.
Southworth 	then 	answered, 	“These 	are 	things 	that 	I, 	as 	a
physician, would expect.”
¶9 	A key witness for Avalon was Dr. Kwon Lee—a certified
wound care physician—who testified that the development and
progression of Sprague’s pressure ulcers were “unavoidable.”
Lee testified that he had reviewed “a lot” of Sprague’s records,
including records before, during, and after Sprague’s stay at
Avalon. Lee also reviewed the depositions of Fonoti and other
nurses, Sprague’s experts, Sprague’s wife, and Sprague’s treating
physicians. With that preface, Avalon asked Lee if he had
formed opinions in the case and what those opinions were. Lee
responded, “The care at [Avalon], I believe was reasonable. . . .
And the care rendered by [Fonoti] was appropriate.”
¶10 	Lee elaborated on general nursing standards of care in
response to being asked what other interventions could have
been made to prevent a pressure ulcer. Specifically, he offered
that “certainly turning and repositioning is really the standard.
Using pressure reducing mattresses and so forth, cushions . . . .
[I]f there’s skin that’s prone to moisture, you want to use like a
barrier cream, like a thick type of ointment . . . . And there are
dressings that you can use, like foam dressings that will actually
help provide some pressure relief.”
¶11 	Next, 	Lee 	gave 	opinions 	about 	the 	standard 	of 	care
expected of Fonoti. Lee stated that Fonoti had an obligation as a
wound care nurse to supervise other nurses and to ensure
appropriate preventative measures were in place. He further
opined that Fonoti had not caused the development of, or any

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additional 	injury 	to, 	Sprague’s 	pressure 	ulcer. 	Finally, 	Lee
testified 	that 	Avalon 	could 	not 	have 	implemented 	other
interventions 	that 	would 	have 	helped 	to 	avoid 	Sprague’s
pressure ulcer.
¶12 	On cross-examination, Sprague’s counsel first confirmed
Lee’s testimony on the general nursing standards of care. As a
result, 	Lee 	began 	backtracking 	on 	his 	earlier 	testimony 	by
characterizing certain actions as “recommendations” rather than
“standards” 	as 	he 	had 	previously 	stated. 	When 	Sprague’s
counsel pressed the issue, Avalon objected, claiming the cross-
examination was beyond the scope of the direct examination.
Avalon argued that Sprague’s questions went to general nursing
standards of care, whereas questions to Lee on direct had been
limited to the standard of care as to just Fonoti. The trial court
overruled the objection because Avalon “asked some really
broad 	standard 	of 	care 	questions” 	on 	direct 	examination.
Sprague continued attempting to discredit Lee, and Avalon
again objected to the questioning as beyond the scope of direct
examination. 	Again, 	the 	court 	overruled 	the 	objection 	and
acknowledged that the purpose of the questions was to impeach
Lee on his earlier testimony.
¶13 	Sprague then attempted to impeach Lee on his position
that no other mitigating measures could have been taken to
prevent the pressure ulcer. Avalon again objected, arguing that
it 	“had 	limited 	[Lee’s] 	testimony 	to 	[Fonoti]” 	and 	that
questions 	about 	the 	other 	attending 	nurses 	were 	therefore
beyond the scope of the initial examination. The trial court again
overruled this objection because Lee had testified broadly on
direct examination, effectively opening the door to the line of
questions 	related 	to 	the 	nurses 	working 	under 	Fonoti’s
supervision.
¶14 	Next, 	the 	trial 	court 	admitted 	Emmons’s 	testimony
related 	to 	Sprague’s 	alleged 	medical 	expenses. 	Emmons’s
transcribed testimony, in total, covered nearly 200 pages in the
record. In addition to testifying about his professional expertise

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and experience, Emmons testified that he reviewed “a few
thousand records” related to this case. Those records included
(1) documents arising from Sprague’s initial hospitalization, his
first 	long-term 	care, 	his 	second 	long-term 	care, 	his 	stay 	at
Avalon, 	his 	hospice 	stay, 	and 	his 	discharge 	to 	home 	care;
(2) Sprague’s death certification; (3) depositions of the nurses,
physicians, and Avalon’s experts; and (4) Sprague’s medical
bills, 	for 	which 	Emmons 	provided 	a 	summarized 	report
(Summary).
¶15 	On voir dire,8 Avalon suggested that Emmons had not
personally reviewed all the documents listed in the Summary
because he had not also listed each provider separately, and by
name, in his expert report. Emmons disagreed and explained
that when a facility orders a medical service it may not always
perform that 	service; 	but, 	that the reports, 	bills, 	and 	other
documents related to that service remain within the ordering
facility’s records. So rather than list each individual provider
who 	performed 	a 	service, 	Emmons’s 	expert 	report 	simply
identified 	the 	facility 	that 	ordered 	the 	service. 	Counsel 	for
Avalon then stated, “I’ve made my point. I would move to just
strike the portions of the [S]ummary that refer to those providers
of whose records were not identified in the [expert] report.” The
trial court then asked Avalon, “Okay. Were you provided those
records in the course of this case?” Avalon responded, “I have
the records. Yes.” The trial court conditionally admitted the
Summary but indicated it would revisit the issue “at the next
break.”
¶16 	At the next recess, Avalon again acknowledged it had
received all the relevant medical bills at issue. The trial court
asked if Avalon had “a good faith basis to believe that any of
these dollar signs on this [S]ummary don’t meet up with the real
8. In this context, voir dire is a “preliminary examination to test
the competence of a witness.” Voir dire, Black’s Law Dictionary
(10th ed. 2014).

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bill?” Avalon admitted, “No. They meet up with the bill.” The
court indicated that it believed Avalon’s contentions with the
medical bills were related to causation, not their admissibility.
Avalon’s counsel responded, “What my point was, was there are
bills in there that are costs for care that’s not related to the
pressure ulcer.” The court advised counsel that “there’s certainly
nothing preventing you, in your case, from having a witness tell
that to a jury.” The court ruled that the Summary was admissible
and advised Avalon that if it wanted to respond to the causation
components of the medical bills, it “certainly [could].” The court
further instructed, “I want [Avalon] to provide to [Sprague] a list
of the items that [it] think[s] are not [medical costs related to
causation] by Monday morning.” Avalon’s counsel suggested,
“[J]ust as another alternative, there’s nothing precluding me
from just raising this issue in closing?” The court responded,
“[I]f you’d rather go that way, that’s fine. By admitting [the
Summary], I’m certainly not foreclosing you the opportunity to
argue 	that 	some of those 	costs were not causally 	related.”
Avalon answered, “Right. Okay. Fair enough.”
¶17 	Sprague also called Dr. Mary Parsons who testified about
Sprague’s cause of death. During Parsons’s testimony, Sprague’s
death certificate—which she had completed and signed—was
also admitted into evidence. Parsons testified to, among other
things, 	her 	general 	training 	and 	experience 	concerning
(1) treating 	patients 	with 	pressure 	ulcers; 	(2) 	interpreting
symptoms of M.S.; (3) treating Sprague as his primary care
physician for “15 to 16 years”; (4) reviewing Sprague’s medical
records from before, during, and after the time he was a patient
at Avalon; (5) completing death certificates generally, and for
Sprague; (6) consulting with Sprague’s other doctors and nurses
about 	his 	ailments, 	treatments, 	and 	cause 	of 	death; 	and
(7) consulting 	with 	Sprague’s 	family 	about 	his 	ailments,
treatments, and cause of death.
¶18 	Next, Parsons testified that Sprague’s cause of death—as
she had indicated on the death certificate—was the pressure
ulcer. 	Avalon 	objected, 	stating, 	“I’ll 	just 	renew 	our 	prior

Sprague v. Avalon Care Center
20180019-CA 	10 	2019 UT App 107
objection that we’ve made previously.” Counsel for each party
approached the bench, and the court indicated that it was
concerned whether a “reasonable certainty of preponderance
[was] entered.” Sprague’s counsel offered to cure this objection
by saying, “I can ask her.” The court responded, “[W]hy don’t
you.” When direct examination resumed, 	Sprague’s counsel
asked Parsons, “[S]o would you be comfortable saying that what
you put on the death certificate is the cause of death to a
reasonable degree of medical probability?” Parsons answered,
“Yes.” The court then admitted the death certificate without
objection.
¶19 	Dr. David Pegues also testified to Sprague’s cause of
death. In over seventy pages of testimony, much of which laid
the foundation of Pegues’s experience and personal knowledge
of Sprague’s medical records, Pegues opined on Sprague’s cause
of death, without objection by Avalon. When Sprague’s counsel
asked Pegues, “[H]ave you formed an opinion to a reasonable
degree of medical probability as to what caused [Sprague’s]
death?” Pegues answered, “[T]he most likely cause of death, was
related to the presence of and complications of the . . . ulcer that
had then been present for 20 months.” Pegues later testified—
again 	without objection—that although it was possible that
another ailment such as a urinary tract infection, pneumonia, or
influenza could have been the cause of death, “the available
medical documentation does not support [any of those] as the
probable cause of death.”
¶20 	After a six-day trial, the jury found Avalon liable and
awarded $2 million in damages. Avalon appeals.
ISSUES AND STANDARDS OF REVIEW
¶21 	First, Avalon contends that its motion for partial directed
verdict was denied in error. “The grant or denial of a directed
verdict is . . . a question of law reviewed for correctness.” Liley v.
Cedar Springs Ranch Inc., 2017 UT App 166, ¶ 12, 405 P.3d 817.

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And when, as is the case here, “an appellant challenges the
denial of a motion for a directed verdict based on the sufficiency
of the evidence, the applicable standard of review is highly
deferential.” Id. (cleaned up).
¶22 	Second, Avalon contends that the trial court erred by
admitting testimony from the following experts: Southworth,
Lee, Emmons, Parsons,9 and Pegues. “We review the trial court’s
decisions regarding the admission of expert witness testimony
for an abuse of discretion.” Balderas v. Starks, 2006 UT App 218,
¶ 13, 138 P.3d 75.
ANALYSIS
I. Directed Verdict
¶23 	Avalon 	contends 	that 	its 	motion 	for 	partial 	directed
verdict should have been granted because Sprague failed to
establish that Avalon breached the standard of care as to five of
the seven standards identified by Emmons. Avalon specifically
argues that because Emmons did not expressly state his opinions
in 	terms 	of 	“a 	reasonable 	degree 	of 	medical 	probability,”
Sprague failed to establish a prima facie case. But as discussed
below, 	Utah 	law 	does 	not 	require 	that 	an 	expert 	witness
expressly 	invoke 	that 	phrase 	separately 	and 	repeatedly 	in
conjunction 	with 	each 	stated 	opinion, 	and 	therefore, 	we
disagree.
9. Avalon also contends that Sprague’s death certificate—which
was signed by Parsons—was erroneously admitted “because it
sets forth an opinion as to [Sprague’s] cause of death that does
not 	meet 	[rule] 	702’s 	requirements 	for 	expert 	causation
testimony.” Because this is the same argument against Parsons’s
expert testimony in general, and because the death certificate is
cumulative evidence of Parsons’s testimony, we address these
points together. Infra ¶¶ 44–47.

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¶24 	“To establish medical malpractice, a plaintiff must prove
four elements: (1) the standard of care required of health care
providers under the circumstances; (2) breach of that standard
by the defendant; (3) injury proximately caused by the breach;
and (4) damages.” Morgan v. Intermountain Health Care, Inc., 2011
UT App 253, ¶ 8, 263 P.3d 405. Owing to the complex nature of
medical malpractice cases, plaintiffs generally must establish the
standard of care and proximate cause elements through expert
testimony. Dalley v. Utah Valley Reg’l Med. Center, 791 P.2d 193,
195–96 (Utah 1990); see also Chadwick v. Nielsen, 763 P.2d 817, 821
(Utah Ct. App. 1988) (“Due to the technical and complex nature
of a medical doctor’s services, expert medical testimony must be
presented at trial in order to establish the standard of care and
proximate cause . . . .”).
¶25 	Our supreme court, in State v. Jarrell, 608 P.2d 218 (Utah
1980), summarized the standard required of medical experts as
follows:
The 	general 	rule regarding 	the 	certainty 	of 	an
expert’s opinion is that the expert may not give an
opinion 	which 	represents 	a 	mere 	guess,
speculation, or conjecture. Expert medical opinion
evidence based on a probability, possibility, or
likelihood has been admitted, however, where the
witnesses expressed statements in language which
sufficiently represented their own best judgment to
a reasonable certainty.
Id. at 230 (cleaned up). This rule does not require that an expert
expressly state the phrase, “to a reasonable degree of medical
probability” for their testimony to be admissible or entitled to
weight. Indeed, consistent with the trial court’s approach here,
expert testimony should be viewed as a whole and analyzed on
its substance. See, e.g., Danny’s Drywall v. Labor Comm’n, 2014 UT
App 277, ¶ 17, 339 P.3d 624 (“When the report is read as a whole,
and in light of th[e] clear statement that [the claimant] has the

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[relevant] medical conditions, it is evident that the medical
panel’s opinion is based on the panel’s assessment of medical
probability.” (cleaned up)); Johnson v. Montoya, 2013 UT App 199,
¶ 10, 308 P.3d 566 (“The Utah Rules of Evidence do not require
expert testimony to exhibit a reasonable degree of certainty to be
admissible but only a threshold showing of reliability. This
threshold 	requirement 	requires 	only 	a 	basic 	foundational
showing of indicia of reliability.” (cleaned up)).
¶26 	Here, Emmons’s expert testimony was sufficiently reliable
to establish the prima facie elements of medical malpractice and
to survive Avalon’s motion for directed verdict. During his
direct examination, Sprague’s counsel asked,
Based on the materials that you have reviewed,
and your understanding of wound care, have you
formulated any opinions to a reasonable degree of
medical 	probability 	with 	regard 	to 	what 	the
standard of care, or what the standard of care
would have been required of [Avalon] in treating
[Sprague’s] wounds?
Emmons answered, “Sure,” and then expressed and explained
those opinions. The fact that Emmons did not repeat the phrase
“to a reasonable degree of medical probability” each time he
stated an opinion is neither here nor there. The question is
whether Emmons expressed his opinions in a way that indicated
sufficient 	certainty. 	Besides 	the 	alleged 	shortcoming 	of 	not
attaching the incantation of “a reasonable degree of medical
probability,” 	the 	record 	gives 	no 	indication 	that 	Emmons’s
opinions were offered under a different standard than the one
with which he prefaced his entire testimony. Avalon argues that
because 	Emmons 	failed 	to 	separately 	qualify 	each 	of 	his
opinions, we cannot know what standard he was applying. We
disagree that his testimony, when reviewed as a whole, was
compartmentalized in the manner Avalon suggests. And Avalon
does not point to any portion of the record that would lead us to

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conclude that Emmons changed the general qualification that his
opinions were formulated to a reasonable degree of medical
probability.
¶27 	We 	see 	no 	basis 	to 	disagree 	with 	the 	trial 	court’s
conclusion that Emmons’s opinions concerning all seven alleged
breaches 	were 	offered—either 	expressly 	or 	impliedly—to 	a
reasonable degree of medical certainty. See Liley v. Cedar Springs
Ranch Inc., 2017 UT App 166, ¶ 12, 405 P.3d 817 (stating that
when a challenge to the denial of a directed verdict concerns the
sufficiency of the evidence presented below, appellate review is
“highly deferential” to the trial court’s findings (cleaned up)).
We conclude that Emmons’s testimony, as a whole, displayed
the requisite indicia of reliability required to be admissible, and
therefore, the directed verdict was properly denied.
II. Expert Testimony
¶28 	Next, Avalon contends that the trial court abused its
discretion in admitting expert testimony from five witnesses. We
discuss each witness in turn. Utah Dep’t of Transp. v. TBT Prop.
Mgmt., Inc., 2015 UT App 211, ¶ 15, 357 P.3d 1032 (“The proper
scope of cross-examination is within the sound discretion of the
trial court and should not be disturbed absent a showing of
abuse [of discretion].” (cleaned up)).
A. 	Southworth
¶29 	Avalon 	argues 	that 	the 	trial 	court 	erred 	in 	allowing
Southworth to testify to the standard of care for nurses, because
he is not a nurse. “In Utah, a practitioner of one school of
medicine is ordinarily not competent to testify as an expert in a
malpractice action against a practitioner of another school due to
the 	wide 	variation 	between 	schools 	in 	both 	precepts 	and
practices.” De Adder v. Intermountain Healthcare, Inc., 2013 UT
App 173, ¶ 16, 308 P.3d 543 (cleaned up) (holding that “a
doctor’s training as a physician is not sufficient by itself to
qualify him or her to testify as an expert in a malpractice action

Sprague v. Avalon Care Center
20180019-CA 	15 	2019 UT App 107
against a nurse” (cleaned up)). An exception to this rule is when
an expert “is knowledgeable about the applicable standard of
care.” Id. ¶ 17 (cleaned up); see, e.g., Creekmore v. Maryview Hosp.,
662 F.3d 686, 692–93 (4th Cir. 2011) (discerning no abuse of
discretion where the doctor, who testified about the nursing
standard of care, “regularly perform[ed] the procedure at issue
. . . and the standard of care for performing the procedure is the
same” for doctors and nurses (cleaned up)).
¶30 	Avalon argues that the trial court erred by overruling its
objection and admitting Southworth’s “extensive” opinions on
the nursing standard of care. But that is not what happened here.
Avalon ignores that its objection to Southworth’s testimony was
partially 	sustained 	and 	that 	the 	court 	gave 	a 	curative
instruction—it told the jury to consider Southworth’s testimony
only for the “limited purpose of . . . his knowledge as a doctor
about wound care.” This instruction properly informed the jury
that Southworth was permitted to testify to the standard of care
only as it pertained to his knowledge as a physician, not as a
nurse. See De Adder, 2013 UT App 173, ¶ 17 (permitting expert
testimony to the extent that an expert “is knowledgeable about
the applicable standard of care” (cleaned up)). In other words,
because Southworth’s testimony was limited to his knowledge
as a physician on the standard of care owed by Avalon, it was
properly admitted. And to the extent that Avalon believed that
this testimony was not relevant to the standard of care for
nurses, it could have, and should have, made that argument to
the jury. Therefore, we conclude that the trial court did not err in
admitting Southworth’s testimony.
¶31 	Further, 	Avalon’s 	opening 	brief 	did 	not 	include 	any
analysis, 	discussion, 	or 	even 	a 	mention 	of 	how 	admitting
Southworth’s testimony was prejudicial. See Camco Constr. Inc. v.
Utah Baseball Academy Inc., 2018 UT App 78, ¶ 42 n.13, 424 P.3d
1154 (“Issues raised by an appellant in the reply brief that were
not presented in the opening brief are considered waived and
will not be considered by the appellate court.” (cleaned up)).
Indeed, even in its reply brief, Avalon only dedicates a single

Sprague v. Avalon Care Center
20180019-CA 	16 	2019 UT App 107
sentence to prejudice: “Moreover, allowing such testimony was
highly prejudicial and substantially affecting the likelihood of a
different result.” This conclusory sentence falls well short of
showing a reasonable likelihood that the verdict would have
been different if Southworth’s testimony had been excluded. See
Campbell v. State Farm Mutual Auto. Ins. Co., 2001 UT 89, ¶ 13, 65
P.3d 1134 (“A trial court will not be reversed for an abuse of
discretion unless there is a reasonable likelihood that the verdict
would have been different if the trial court had excluded the
expert testimony.” (cleaned up)), rev’d on other grounds, 538 U.S.
408 (2003). Thus, even if we were persuaded that the court
abused its discretion, Avalon has not shown that the error was
prejudicial.
B. 	Cross-Examination of Lee
¶32 	We next turn to the issue of the scope of Lee’s cross-
examination. Lee testified on direct examination to the standards
of care for treating a patient such as Sprague. Specifically, he
discussed the general nursing standards of care for treating
bedsores and the specific standards of care applicable to Fonoti.
On cross-examination, the court permitted Sprague’s counsel to
ask questions regarding the general nursing standards of care
and, importantly, to impeach Lee as he was backtracking on his
earlier 	testimony 	by 	phrasing 	certain 	actions 	as
“recommendations” rather than “standards.” Avalon argues that
this testimony was beyond the scope of direct examination
because Lee “was designated by [Avalon] in the limited capacity
of offering testimony of causation, damages, and the standard of
care of [Avalon’s] wound care nurse, [Fonoti], . . . which differs
from 	the 	standard 	of 	care 	applicable 	to 	[Avalon’s] 	general
nursing staff.” We disagree.
¶33 	The 	Utah 	Rules 	of 	Evidence 	provide 	that 	“[c]ross-
examination should be limited to” (1) “the subject matter of the
direct examination” and (2) “matters affecting the witness’s
credibility.” Utah R. Evid. 611(b). In other words, under rule
611(b), a trial court has broad discretion to permit a party, on

Sprague v. Avalon Care Center
20180019-CA 	17 	2019 UT App 107
cross-examination, 	to 	ask 	questions 	related 	to 	the 	subject
matter of direct examination or to impeach the witness. Id.;
see also Whitehead v. American Motors Sales Corp., 801 P.2d 920, 924
(Utah 1990) (“Having offered his expert opinion, the witness
exposes himself to interrogation which ordinarily would have
no place in the cross-examination of a factual witness, but
the 	expert 	exposes 	himself 	to 	the 	most 	searching 	kind
of 	investigation 	into 	his 	qualifications, 	the 	extent 	of 	his
knowledge and the reasons for his opinion, including the facts
and other matters upon which it is based.” (cleaned up)); Utah
Dep’t of Transp. v. 6200 S. Assocs., 872 P.2d 462, 469 (Utah Ct.
App. 1994) (“The scope of the cross-examination of experts . . . is
very broad, since cross-examination is often the only protection
of the opposing party against the unwarranted estimates that a
certain 	class 	of 	mercenary 	experts 	is 	wont 	to 	indulge 	in.”
(cleaned up)).
¶34 	Here, we conclude that the trial court did not abuse
its discretion in permitting Sprague to continue to cross-examine
Lee. First, Lee testified on direct-examination about standards
of care in general, and as applied to Avalon, Avalon’s nursing
staff, 	and 	Fonoti. 	Therefore, 	on 	cross-examination, 	Sprague
was properly permitted to ask questions on this same subject
matter. 	Second, 	Sprague 	was 	permitted 	to 	impeach 	Lee.
Avalon’s contention that Sprague was not permitted to highlight
that 	Lee 	was 	backtracking 	on 	his 	earlier 	testimony 	by
phrasing 	certain 	actions 	as 	“recommendations” 	rather 	than
“standards”—as he had previously stated—is legally incorrect.
We 	therefore 	conclude 	that 	the 	trial 	court 	did 	not 	abuse
its 	discretion 	in 	admitting 	Lee’s 	testimony 	from 	cross-
examination.
¶35 	Further, 	Avalon’s 	opening 	brief 	again 	does 	not
demonstrate how admitting Lee’s testimony was prejudicial. See
Camco, 2018 UT App 78, ¶ 42 n.13. And again, in its reply brief,
Avalon dedicates only a single sentence to prejudice: “[T]he
prejudice of [admitting Lee’s testimony] is clear as there was a
substantial likelihood of a different result.” Thus, even if we

Sprague v. Avalon Care Center
20180019-CA 	18 	2019 UT App 107
were persuaded by Avalon on this alleged error, we would still
be compelled to affirm. See Campbell, 2001 UT 89, ¶ 13 (requiring
a 	showing 	of 	prejudice 	to 	warrant 	reversal), 	rev’d 	on 	other
grounds, 538 U.S. 408 (2003).
C. 	Emmons—Medical Expenses
¶36 	Avalon’s next contention is that the trial court erred in
admitting 	Emmons’s 	testimony 	and 	related 	Summary
concerning Sprague’s medical bills. Specifically, Avalon argues
that Emmons’s testimony and Summary were deficient under
rule 703 of the Utah Rules of Evidence and that Emmons’s
testimony and Summary were improperly admitted because his
expert report was deficient under rule 26(a)(4)(B) of the Utah
Rules of Civil Procedure.10
1. 	Utah Rule of Evidence 703
¶37 	The Utah Rules of Evidence provide, “An expert may
base an opinion on facts or data in the case that the expert has
been made aware of or personally observed.” Utah R. Evid. 703;
see also State v. Kelley, 2000 UT 41, ¶ 18, 1 P.3d 546 (“The facts or
data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known
to the expert at or before the hearing.” (cleaned up)). Here, the
record 	indicates 	that 	Emmons’s 	testimony 	and 	Summary
10. Avalon also contends that Emmons’s testimony should have
been excluded under rule 702 of the Utah Rules of Evidence.
Avalon, however, never made a rule 702 objection at trial, and
therefore this issue is not preserved, and we decline to address
it. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a
party fails to raise and argue an issue in the trial court, it has
failed to preserve the issue, and an appellate court will not
typically 	reach 	that 	issue 	absent 	a 	valid 	exception 	to
preservation.”).

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20180019-CA 	19 	2019 UT App 107
satisfied rule 703 because he personally reviewed the medical
bills at issue.11
¶38 	Avalon contends that Emmons did not have personal
knowledge of each of Sprague’s medical bills that were listed
in the Summary because his expert report did not list each
provider 	who 	generated 	a 	medical 	bill. 	The 	record 	shows
otherwise. 	When 	Avalon 	questioned 	Emmons 	about 	his
knowledge 	of 	the 	medical 	bills, 	he 	provided 	a 	succinct
explanation: that he had indeed reviewed each medical bill, but
for clarity, had limited references in his expert report to the
ordering 	facility, 	rather 	than 	listing 	each 	discrete 	provider
separately. Emmons explained that when a provider performs a
service, all records related to that service are retained by that
provider and the facility that ordered the service. Thus, on
Emmons’s expert report, certain facilities were referenced in
connection 	with 	medical 	records 	and 	services 	it 	may 	have
ordered but not actually performed. In other words, Emmons’s
testimony demonstrates that he did review each of Sprague’s
medical bills despite the fact that he may have listed only the
ordering facility and not the provider who actually performed
that service.
¶39 	Furthermore, Avalon cannot show prejudice. When the
trial court asked Avalon if it had “a good faith basis to believe
that any of these dollar signs on this [S]ummary don’t meet up
with the real bill,” Avalon conceded, “No. They meet up with
the bill.” Accordingly, where Avalon concedes that the figures in
the Summary are accurate, we conclude that the trial court did
not err in admitting Emmons’s testimony or Summary under
rule 703.
11. Other than an argument that Emmons had not personally
reviewed or was otherwise made aware of particular expenses,
Avalon argues no other basis for exclusion under rule 703 on
appeal.

Sprague v. Avalon Care Center
20180019-CA 	20 	2019 UT App 107
2. 	Disclosure Under Rule 26(a)(4)(B)
¶40 	Avalon also argues that the trial court erred “in admitting
[Sprague’s] medical expense summary chart into evidence . . .
because 	[Sprague] 	did 	not 	comply 	with 	the 	disclosure
requirements 	of 	Utah 	Rule 	of 	Civil 	Procedure 	26.” 	Avalon
contends that Emmons’s expert report was deficient under rule
26(a)(4)(B) because it “did not state that he reviewed the medical
expense documentation relating to [various providers], all of
which formed much of the medical expense summary.” Avalon’s
contention is unavailing for three reasons.
¶41 	First, Avalon abandoned its rule 26 disclosure objection at
trial, and therefore the issue is not preserved for appeal. See State
v. McNeil, 2013 UT App 134, ¶ 23, 302 P.3d 844 (“A claim is not
preserved for appeal if a party initially objects but later . . .
abandons the objection and stipulates to the court’s intended
action.”), aff’d on other grounds, 2016 UT 3, 365 P.3d 699. Avalon
initially objected and moved the court to “strike the portions of
the [S]ummary that refer to those providers whose records were
not 	identified 	in 	the 	report.” 	But 	Avalon 	abandoned 	this
objection when it conceded that Sprague had disclosed all of the
medical records, the medical records were accurate, and the
point it intended to make to the court was that there “are costs
for care that are not related to the pressure ulcer” contained in
the Summary. Then, after Avalon conceded to the trial court that
its objection concerned causation rather than admissibility, it did
not pursue its original disclosure objection. Accordingly, Avalon
abandoned 	its 	disclosure 	objection, 	and 	it 	is 	therefore 	not
preserved for appeal. See ConocoPhillips Co. v. Utah Dep’t of
Transp., 	2017 	UT 	App 	68, 	¶ 26, 	397 	P.3d 	772 	(“Defendants
affirmatively represent[ing] to the court that they no longer
sought 	a 	curative 	instruction 	. 	. 	. 	in 	conjunction 	with
[d]efendants’ counsel’s simultaneous proposal of an alternative
remedy that did not involve a curative instruction, constituted a
waiver.”). Under such circumstances, we cannot conclude that
the trial court abused its discretion in allowing the Summary
into evidence.

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20180019-CA 	21 	2019 UT App 107
¶42 	Second, 	and 	in 	the 	same 	vein, 	Avalon 	invited 	any
perceived error concerning the trial court’s decision to admit
Emmons’s testimony and Summary. See State v. Winfield, 2006
UT 4, ¶ 15, 128 P.3d 1171 (“Invited error . . . 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.” (cleaned up)). Although Avalon made its
initial objection on the ground that Sprague’s expert disclosures
were 	deficient, 	it 	later 	conceded 	that 	its 	concern 	went 	to
causation, not admissibility. And when the court offered to
ameliorate these concerns by allowing Avalon’s expert to opine
on whether the medical bills related to causation, Avalon instead
asked if it could rebut Emmons’s testimony and Summary in its
closing argument. The court responded, “[I]f you’d rather go
that way, that’s fine. By admitting [the Summary], I’m certainly
not foreclosing you the opportunity to argue that some of those
costs 	were 	not 	causally 	related.” 	Avalon 	answered, 	“Right.
Okay. Fair enough.” Avalon thereafter did not raise similar
concerns with the trial court, nor has it argued on appeal that it
did. 	Accordingly, 	we 	conclude 	that 	Avalon 	invited 	any
perceived error by signaling to the trial court that concerns over
Emmons’s testimony and Summary were cured by allowing
Avalon to rebut that testimony in closing arguments and not
thereafter renewing its disclosure objection. In short, the court
gave Avalon the remedy it asked for.
¶43 	Third, Avalon has not argued that it was prejudiced by
the admission of Emmons’s testimony or Summary, nor, in our
view, can prejudice be found on these facts. See Campbell, 2001
UT 89, ¶ 13 (requiring a showing of prejudice to warrant
reversal), rev’d on other grounds, 538 U.S. 408 (2003).
D. 	Parsons
¶44 	Avalon, in its opening brief, contends that the trial court
abused its discretion by “allow[ing] [Parsons] to offer opinions
about the cause of [Sprague’s] death” and admitting Sprague’s
death certificate. Avalon argues that Parsons failed to “meet a

Sprague v. Avalon Care Center
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threshold showing of reliability” to testify to Sprague’s cause of
death and that her testimony and the death certificate were
therefore admitted in error.
¶45 	We 	reject 	Avalon’s 	position 	for 	three 	reasons. 	First,
Parsons’s foundational testimony satisfied rules 702 and 703 of
the Utah Rules of Evidence. Specifically, Parsons testified that
she had extensive experience as a treating physician and had
specifically treated patients with pressure ulcers. Parsons also
testified that she had extensive experience and history with
Sprague; she had consulted with Sprague’s family and medical
care providers; and she had reviewed all of the relevant medical
records in this case. Thus, we conclude that Parsons’s testimony
established 	a 	basic 	“foundational 	showing 	of 	indicia 	of
reliability” 	and 	therefore, 	the 	trial 	court 	did 	not 	abuse 	its
discretion in admitting her testimony. See Johnson v. Montoya,
2013 UT App 199, ¶ 10, 308 P.3d 566 (“The Utah Rules of
Evidence . . . require[] only a basic foundational showing of
indicia of reliability.” (cleaned up)).
¶46 	Second, 	although 	Avalon 	has 	argued 	that 	Parsons’s
testimony was not sufficiently reliable, it has failed to directly
point to specific objections or “engage with” the trial court’s
specific rulings on those objections sufficient to satisfy its burden
on appeal. See Gines v. Edwards, 2017 UT App 47, ¶ 31, 397 P.3d
612 	(explaining 	that 	“the 	appellant 	must 	engage 	with 	and
challenge the actual bases of the [trial] court’s decisions” to
persuade 	a 	reviewing 	court 	on 	appeal 	(cleaned 	up)). 	For
example, Avalon’s opening brief points out various criticisms of
Parsons, including that “[h]er clinical practice does not include
the management of [M.S.]” and that “Parsons has only treated a
few 	patients 	with 	advanced 	[M.S.] 	like 	[Sprague].” 	These
critiques, however, go only to the weight of the testimony
offered by Parsons, see Gunn Hill Dairy Props., LLC v. Los Angeles
Dep’t of Water & Power, 2012 UT App 20, ¶ 45, 269 P.3d 980, not
the 	indicia 	of 	reliability 	required 	for 	admissible 	expert
testimony, see Johnson, 2013 UT App 199, ¶ 10.

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20180019-CA 	23 	2019 UT App 107
¶47 	Third, Avalon has not explained why any alleged error on
this 	issue 	was 	prejudicial. 	See 	Campbell, 	2001 	UT 	89, 	¶ 	13
(requiring a showing of prejudice to warrant reversal), rev’d on
other grounds, 538 U.S. 408 (2003). Therefore, we conclude that
the trial court did not err in admitting Parsons’s testimony.
E. 	Pegues
¶48 	Finally, Avalon argues that Pegues’s testimony—about
Sprague’s cause of death—was erroneously admitted. This issue
was not preserved below. The record shows that Pegues testified
at least two separate times—without objection—that Sprague’s
cause of death was the pressure ulcer and not one of the other
ailments that Avalon argued could have been the cause of his
death. Where Avalon has not preserved this issue or argued that
an exception to preservation applies, we decline to address it
further. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443
(“When a party fails to raise and argue an issue in the trial court,
it has failed to preserve the issue, and an appellate court will not
typically 	reach 	that 	issue 	absent 	a 	valid 	exception 	to
preservation.”).
CONCLUSION
¶49 	The 	trial 	court 	properly 	denied 	Avalon’s 	motion 	for
directed verdict because Sprague sufficiently established the
elements of its claim. We also conclude that the trial court did
not abuse its discretion in admitting expert testimony challenged
by Avalon. Affirmed.