Eskelson v. Davis Hospital

2010 UT 59
AMENDED OPINION*
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Lonnie Eskelson, on behalf of 	No. 20080484
Jacob Eskelson, a minor, and
Lavon Eskelson,
Plaintiffs and Appellants,
v.
Davis Hospital and Medical 	F I L E D
Center and Jonathan Apfelbaum,
Defendants and Appellees. 	October 15, 2010
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Second District, Layton Dep’t
The Honorable Thomas L. Kay
No. 060601362
Attorneys: 	Dennis A. Gladwell, Lorraine P. Brown, Ogden, for
plaintiffs
Robert G. Wright, Zachary E. Peterson, Cortney
Kochevar, Salt Lake City, for defendants
---
On Petition for Rehearing
PARRISH, Justice:
INTRODUCTION
¶1 	Lonnie Eskelson sued Dr. Jonathan Apfelbaum on behalf
of his four-year-old son Jacob, alleging that Dr. Apfelbaum
perforated Jacob’s eardrum during an attempt to extract a bead
lodged in Jacob’s ear. 	Mr. Eskelson appeals the district court’s
decision excluding his expert testimony and granting summary
judgment in favor of Dr. Apfelbaum.
* Substantive changes are contained in ¶ 15 and a
grammatical error has been corrected in footnote 2.

No. 20080484 	2
BACKGROUND
¶2 	On May 24, 2004, Jacob Eskelson stuck a bead in his
ear. 	His mother, Lavon Eskelson, first took Jacob to Wee Care
Pediatrics, where a nurse practitioner attempted to remove the
bead with a saline flush and soft curette. 	When this failed,
Mrs. Eskelson took Jacob to the emergency room at Davis Hospital
and Medical Center where Dr. Apfelbaum unsuccessfully attempted
to remove the bead with bayonet forceps and then with a soft
curette. 	Because Jacob was becoming agitated during the
procedures, Dr. Apfelbaum requested that Mrs. Eskelson restrain
him. 	Mrs. Eskelson testified in her deposition that Jacob
suffered intense pain during the procedure and that there was
blood on the soft curette Dr. Apfelbaum used in attempting to
extract the bead, both of which are signs of a perforated
eardrum. 	The following day, Dr. Stoker, an ear nose and throat
specialist, examined Jacob and discovered blood in his ear, but
could not observe the tympanic membrane. 	Several days later, Dr.
Stoker put Jacob under general anesthesia and removed the bead.
At that time, he observed that Jacob’s eardrum had been
perforated.
¶3 	Mr. Eskelson sought to introduce expert testimony from
Dr. Kim Bateman to establish that Dr. Apfelbaum departed from the
standard of care in three ways. 	First, before Dr. Apfelbaum’s
final attempt to remove the bead--the attempt when he allegedly
perforated Jacob’s eardrum--he should have informed Mrs. Eskelson
of the potential consequences of attempted extraction. 	Second,
Dr. Apfelbaum should have stopped the procedure when Jacob became
agitated and difficult to control. 	Third, by continuing to
attempt to extract the bead, Dr. Apfelbaum caused Jacob
unnecessary pain.
¶4 	Dr. Apfelbaum moved to strike Dr. Bateman’s testimony
on the grounds that it was purely speculative and it failed to
meet the requirements of Utah Rule of Evidence 702. 	Dr.
Apfelbaum also moved for summary judgment arguing that if the
court struck Dr. Bateman’s testimony, Mr. Eskelson would be
without the expert testimony necessary to establish medical
malpractice. 	After a two and a half hour hearing, the district
court granted the motion to strike, finding that Dr. Bateman’s
testimony did not comply with rule 702. 	Specifically, the
district court found that Dr. Bateman’s testimony was not based
on any scientific, technical, or other scientific knowledge, that
his testimony would not assist the trier of fact, and that his
methods were not generally accepted by the relevant scientific

3 	No. 20080484
community. 	The district court then granted summary judgment in
favor of Dr. Apfelbaum because Mr. Eskelson had no expert to
establish that Dr. Apfelbaum breached the applicable standard of
care.
STANDARD OF REVIEW
¶5 	“The trial court has wide discretion in determining the
admissibility of expert testimony. . . .” 	State v. Hollen, 2002
UT 35, ¶ 66, 44 P.3d 794 (internal quotation marks omitted); see
also State v. Gallegos, 2009 UT 42, ¶ 12, 220 P.3d 136 (applying
abuse of discretion review to district court’s exclusion of
expert testimony on relevancy grounds). 	Accordingly, we disturb
the district court’s decision to strike expert testimony only
when it “exceeds the limits of reasonability.” 	Hollen, 2002 UT
35, ¶ 66 (quoting State v. Larson, 865 P.2d 1355, 1361 (Utah
1993)). 	Our review of the district court’s exercise of its
discretion “include[s] review to ensure that no mistakes of law
affected a lower court’s use of its discretion.” 	State v.
Barrett, 2005 UT 88, ¶ 17, 127 P.3d 682. 	Thus, if the district
court erred in interpreting Utah Rule of Evidence 702 when it
granted Dr. Apfelbaum’s motion to strike, it did not act within
the limits of reasonability, and we will not defer to the
evidentiary decision. 	See Carbaugh v. Asbestos Corp., 2007 UT
65, ¶ 7, 167 P.3d 1063 (finding an abuse of the district court’s
discretion when an evidentiary decision was based on an erroneous
interpretation of the law).
¶6 	“We review a district court’s decision to grant summary
judgment for correctness, granting no deference to the district
court’s conclusions, and we view the facts and all reasonable
inferences in the light most favorable to the nonmoving party.”
Bodell Const. Co. v. Robbins, 2009 UT 52, ¶ 16, 215 P.3d 933.
ANALYSIS
¶7 	The district court excluded Dr. Bateman’s testimony
under Rule 702 of the Utah Rules of Evidence. 	Dr. Apfelbaum did
not dispute that Dr. Bateman passed the initial qualification
threshold under rule 702(a), and thus we assume that Dr. Bateman
possessed the requisite “knowledge, skill, experience, training,
or education.” 	Under Rule 702(b), the district court was
required to determine if the specialized knowledge that formed
the basis of Dr. Bateman’s opinion was “reliable, . . . based
upon sufficient facts or data,” and was “reliably applied to the
facts of the case.” 	The district court found that Dr. Bateman’s

1 “To prove medical malpractice, a plaintiff must establish
(1) the standard of care by which the [physician's] conduct is to
be measured, (2) breach of that standard by the [physician], (3)
injury that was proximately caused by the physician's negligence,
and (4) damages . . . . 	[T]he plaintiff is required to prove the
standard of care through an expert witness who is qualified to
testify about the standard.” 	Jensen v. IHC Hosps., Inc., 2003 UT
51, ¶ 96, 82 P.3d 1076 (internal quotation marks
omitted)(alteration in original).
2 Rule 702 of the Utah Rules of Evidence provides:
(a) Subject to the limitations in subsection (b)
if scientific, technical, or other specialized
(continued...)
No. 20080484 	4
testimony was not based on sufficient facts or data and therefore
his specialized knowledge could not be reliably applied to the
facts of the case. 	Additionally, the district court found that
Dr. Bateman’s testimony would not assist the trier of fact
because “[u]nsupportable expert testimony is not helpful to the
jury.” 	After striking Dr. Bateman’s testimony, the district
court then granted Dr. Apfelbaum’s motion for summary judgment on
the grounds that Mr. Eskelson could not present a prima facie
case of medical malpractice without expert testimony. 1 	Thus, if
the district court improperly excluded Dr. Bateman’s expert
testimony, it erred in granting Dr. Apfelbaum’s motion for
summary judgment.
¶8 	We consider first whether Dr. Bateman based his
testimony on reliable scientific, technical, or other specialized
knowledge. 	We then consider whether Dr. Bateman supported his
testimony with sufficient facts. 	Finally, after determining that
the district court erred in excluding the testimony under Utah
Rule of Evidence 702(b), we consider whether the court properly
struck Dr. Bateman’s testimony under rule 702(a) when it found
that because the testimony was “unsupportable,” it would not
assist the trier of fact.
I. 	THE DISTRICT COURT INTERPRETED RULE 702 INCORRECTLY IN
HOLDING THAT DR. BATEMAN’S TESTIMONY DID NOT APPLY SCIENTIFIC
KNOWLEDGE
¶9 	Rule 702, as amended in 2007, requires the court to
consider several factors to determine whether to admit expert
testimony. 2 	Rule 702(a) requires the court to consider whether

2 (...continued)
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
(b) Scientific, technical, or other specialized
knowledge may serve as the basis for expert
testimony if the scientific, technical, or other
principles or methods underlying the testimony
meet a threshold showing that they (I) are
reliable, (ii) are based upon sufficient facts or
data, and (iii) have been reliably applied to the
facts of the case.
(c) The threshold showing required by subparagraph
(b) is satisfied if the principles or methods on
which such knowledge is based, 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.
5 	No. 20080484
expert testimony is necessary to assist the trier of fact and
whether the proposed expert has the necessary “knowledge, skill,
experience, training, or education” to provide such assistance to
the trier of fact. 	After determining that the expert is so
qualified, the court then turns to the reliability of the
“scientific, technical, or other specialized knowledge” that
serves as the basis for the expert’s testimony. 	Utah R. Evid.
702(b).
¶10 	Prior to the 2007 amendment, Rule 702 consisted only of
subsection (a) with the first phrase omitted. 	Under that version
of rule 702, the standard for determining the admissibility of
technical or scientific expert testimony was that announced in
State v. Rimmasch. 	775 P.2d 388, 402-405 (Utah 1989). 	The
Rimmasch standard first required the court to determine whether
the party had met its threshold burden by examining
the correctness of the scientific principles
underlying the testimony, the accuracy and
reliability of the techniques utilized in

No. 20080484 	6
applying the principles to the subject matter
before the court and in reaching the
conclusion expressed in the opinion, and the
qualifications of those actually gathering
the data and analyzing it.
Id. at 403. 	Rimmasch then required that the court determined
whether “the scientific principles or techniques [had] been
properly applied to the facts of the particular case by qualified
persons and [whether] the testimony [was] founded on that work.”
Id. ¶ 398 n.7. 	Third, the Rimmasch standard required a
determination that the scientific evidence be more probative than
prejudicial as required by rule 403 of the Utah Rules of
Evidence. 	Id. at 398 n.8.
¶11 	In amending rule 702, the court did not intend to make
it more difficult to admit expert testimony, but rather to
clarify the requirements for admission. 	Aspects of the Rimmasch
test continue to be applicable under amended rule 702. 	For
example, rule 702(b), like Rimmasch, requires a determination to
determine whether a party has met its threshold burden to show
the reliability of the principles that form the basis for the
expert’s testimony and the reliability of applying those
principles to the facts of the case. 	And, similar to the
Rimmasch standard, rule 702(c) allows the court to take judicial
notice of principles that have been accepted by the relevant
expert community.
¶12 	The advisory committee notes make clear that the new
rule 702 “assigns to trial judges a ‘gatekeeper’ responsibility
to screen out unreliable expert testimony”--not just scientific
expert testimony. 	Utah R. Evid. 702 advisory committee notes,
¶ 3. 	When applying the new rule 702, judges should approach
expert testimony with “rational skepticism”. 	Id. 	But the
“degree of scrutiny [that should be applied to expert testimony
by trial judges] is not so rigorous as to be satisfied only by
scientific or other specialized principles or methods that are
free of controversy or that meet any fixed set of criteria
fashioned to test reliability.” 	Id. 	Importantly, both
subsections (b) and (c) require the plaintiff to make only a
“threshold showing” of reliability. 	Utah R. Evid. 702(b)-(c).
¶13 	In this case, Dr. Bateman’s testimony satisfied rule
702 and should not have been excluded. 	In considering the
scientific basis for Dr. Bateman’s testimony, the district court
found that it fell short of the requirements of 702(b). 	The

7 	No. 20080484
district court first found that the scientific methodology
underlying Dr. Bateman’s testimony was not reliable because Dr.
Bateman could not articulate a specific methodology. 	It then
determined that Dr. Bateman’s testimony was not based on specific
facts and data because Dr. Bateman relied heavily on Mrs.
Eskelson’s deposition testimony. 	Specifically, the district
court found that Dr. Bateman chose to believe only facts in the
record that supported his argument that Dr. Apfelbaum caused the
injury while disregarding testimony that Jacob was tearful and
whiney before he arrived at Davis County Medical Center and that
Dr. Apfelbaum did not observe a sudden indication of pain.
Finally, in considering under rule 702(b)(iii) whether Dr.
Bateman reliably applied scientific principles to the facts of
the case, the district court found that Dr. Bateman could not do
so because he did not use any scientific principles. 	In
addition, the district court found that Dr. Bateman could not
testify about Dr. Apfelbaum’s breach of the standard of care
because he based his testimony solely on Mrs. Eskelson’s
deposition testimony.
¶14 	Each of these rulings by the district court constituted
error. 	Specifically the district court erred in concluding that
Dr. Bateman needed to identify a scientific methodology beyond
his experience as a physician. It further erred in finding that
Dr. Bateman’s testimony was not based on sufficient facts.
Finally, it erred in determining that Dr. Bateman’s expert
testimony could not be reliably applied to the facts of this
case.
A. 	Dr. Bateman Did Not Need to Identify a Specific Methodology
in Order to Opine on the Cause of Jacob’s Injuries
¶15 	Dr. Bateman’s testimony regarding his experience as a
physician, in dealing with similar situations as Jacob’s,
constitutes a threshold showing of reliability. 	In this case,
amended rule 702 requires no more. 	Under Utah Rule of Evidence
702(b)(I), the district court was required to determine whether
the methods and principles underlying Dr. Bateman’s specialized
knowledge were reliable. 	What is required for a threshold
showing of reliability will vary depending on the complexity of
the particular case. 	In this case, the fact that Dr. Bateman had
experience with the removal of foreign objects from the ears of
children satisfies the threshold showing that his testimony was
reliable. 	Identification of a methodology is not necessary where
exposure to a nearly identical situation forms the basis of the
expert’s opinion. 	Because Dr. Bateman’s expertise was

3 Although the federal rule differs from the Utah rule with
regard to the procedure for determining the reliability of expert
testimony, it does not necessarily follow that a federal
gatekeeper judge would consider different factors from a state
gatekeeper. 	Indeed, federal cases explaining that a gatekeeper
judge does not have the latitude to strike expert testimony
because it is based on disputed fact are not in conflict with
Utah’s requirements.
No. 20080484 	8
unchallenged, his specialized knowledge met the threshold showing
of reliability required for the admission of his expert
testimony.
B. 	Dr. Bateman Could Base His Opinion on Facts Alleged in Mrs.
Eskelson’s Deposition Testimony
¶16 	The district court found that Dr. Bateman did not base
his testimony on sufficient facts and data because he selectively
relied on only certain testimony in the record to come to his
opinion. 	This finding was erroneous. 	Although an expert cannot
give opinion testimony that “flies in the face of uncontroverted
physical facts also in evidence,” an expert can rely on his own
interpretation of facts that have a foundation in the evidence,
even if those facts are in dispute. 	Yowell v. Occidental Life
Ins. Co., 110 P.2d 566, 569 (Utah 1941). 	Indeed, we allow
experts latitude to interpret the facts before them. 	See State
v. Schreuder, 726 P.2d 1215, 1223 (Utah 1986) (allowing expert to
base testimony on inadmissible facts based on the assumption that
“the particular facts relied on will be trustworthy because the
integrity and specialized skill of the expert will keep him or
her from basing his or her opinion upon questionable matter”).
“When . . . the parties’ experts rely on conflicting sets of
facts, it is not the role of the trial court to evaluate the
correctness of facts underlying one expert’s testimony.” 	Micro
Chem, Inc. v. Lextron, Inc., 317 F.3d 1387, 1392 (Fed. Cir. 2003)
(interpreting similar Federal Rule of Evidence 702) 3; see also
Atkinson Warehousing & Distrib., Inc. v. Ecolab, Inc., 99 F.
Supp. 2d 665, 670 (D. Md. 2000)(“[A]n opinion based upon a
disputed fact may not be excluded simply because it pertains to
an issue to be decided by the jury”); TK-7 Corp. v. Estate of
Barbouti, 993 F.2d 722, 732 (10th Cir. 1993)(allowing expert
testimony based on disputed facts so long as there was evidence
tending to establish the disputed fact in the record).

9 	No. 20080484
¶17 	The district court suggested that because Dr. Bateman
relied more heavily on the testimony of certain witnesses, he was
thereby expressing his opinion as to the truthfulness of those
witnesses in violation of Utah Rule of Evidence 608(a), which
governs testimony relating to a witnesses’ character for
truthfulness. 	We disagree. 	An expert’s decision to rely on the
testimony of a particular witness does not constitute the
expression of an opinion as to the credibility of that witness.
Moreover, once Dr. Bateman’s testimony is admitted at trial, Dr.
Apfelbaum will have the opportunity to explore the factual basis
for Mr. Bateman’s testimony and point out the dispute over the
facts on which he relies. 	In sum, the district court erred in
finding that Dr. Bateman’s testimony was not reliable because he
based it on his interpretation of the facts at issue.
C. 	Dr. Bateman’s Testimony Reliably Applied His Experience to
the Facts of This Case
¶18 	Although the district court found that it need not
reach rule 702(b)(iii), its erroneous determination that Dr.
Bateman’s specialized knowledge was not reliable is correctly
interpreted as a determination under rule 702(b) (iii) that Dr.
Bateman did not reliably apply his specialized knowledge to the
facts of this case. 	Dr. Apfelbaum cites Beard v. K-Mart Corp.,
2000 UT App 285, 102 P.3d 1015, to support the district court’s
decision that Dr. Bateman’s testimony was mere speculation and
not sufficient to show causation. 	In Beard, the plaintiff’s
expert testified that the injuries the plaintiff sustained in a
K-Mart parking lot could have been the cause of some subsequent
medical problems, but did not say with any certainty that they
actually did cause the problems. 	Id. ¶¶ 18-19. 	In fact, the
expert listed a number of other potential causes of the
plaintiff’s injuries. 	Id. 	The court of appeals reversed the
jury verdict for the plaintiff because the expert’s testimony was
insufficient to demonstrate a causal link between the plaintiff’s
injury and her subsequent medical problems. 	Because “[t]he
expert medical testimony merely established a chronological
relationship between the accident and her symptoms” without
“linking the injury to the necessity of the surgery,” the jury
engaged in speculation rather than finding fact. 	Id. ¶ 	20.
¶19 	Unlike the expert testimony in Beard, Dr. Bateman’s
testimony did more than establish a chronological relationship
between Jacob’s visit to Dr. Apfelbaum and his perforated
eardrum. 	Rather, based on his specialized knowledge in removing
foreign objects from childrens’ ears, Dr. Bateman testified that

No. 20080484 	10
a sudden instance of pain accompanies a perforated eardrum. 	As a
result of his analysis of the evidence, he identified Dr.
Apfelbaum’s examination as the point in time when this sudden
instance of pain occurred. 	This testimony clearly applies Dr.
Bateman’s specialized knowledge to the facts in evidence in a way
that satisfies the threshold showing of reliability required by
rule 702.
II. 	THE DISTRICT COURT ERRED IN FINDING THAT DR. BATEMAN’S
TESTIMONY WOULD NOT ASSIST THE TRIER OF FACT
¶20 	A district court may admit expert testimony only if it
“will assist the trier of fact to understand the evidence or to
determine a fact in issue.” 	Utah R. Evid. 702(a); see also State
v. Gallegos, 2009 UT 42, ¶ 35, 220 P.3d 136. 	An expert’s
testimony will not assist the trier of fact if the evidence is
cumulative or more prejudicial than probative. 	See Gallegos,
2009 UT 42, ¶¶ 35-38. 	We have held that expert testimony assists
the trier of fact when the expertise is “beyond the common
knowledge of ordinary jurors and usually cannot be effectively
elicited through cross-examination alone.” 	State v. Clopton,
2009 UT 84, ¶ 32, 223 P.3d 1103.
¶21 	In this case, the district court found that the
evidence would not assist the trier of fact because it did not
meet the reliability requirements of rule 702. 	However, as
discussed above, the court erred in determining that Dr.
Bateman’s testimony was not admissible under rule 702. 	The
testimony regarding the applicable standard of care, the breach
of that standard, and the resulting damages would enhance the
jurors’ understanding of the medical procedures at issue and
would thereby assist the trier of fact. 	The district court
therefore erred in excluding such testimony.
CONCLUSION
¶22 	The district court erred in excluding Dr. Bateman’s
testimony under rule 702(b). 	Dr. Bateman’s specialized knowledge
was reliable, his testimony was based on facts in evidence, and
he reliably applied his specialized knowledge to those facts.
Because the court erred in excluding Dr. Bateman’s testimony, it
also erred in granting summary judgment in favor of Dr. Apfelbaum
based on the lack of expert testimony. 	We accordingly reverse
and remand for proceedings consistent with this opinion.
---

11 	No. 20080484
¶23 	Chief Justice Durham, Associate Chief Justice Durrant,
and Justice Nehring concur in Justice Parrish’s opinion.
¶24 	Justice Wilkins concurred in the court’s original
opinion but retired prior to the issuance of this amended
opinion.