Belnap v. Graham

2016 UT App 14

THE UTAH COURT OF APPEALS

DENNIS BELNAP, JENNIFER ABEL, ZACHARY COLLETT, ALICIA
BRIERLEY, AND DEREK BELNAP,
Appellants,
v.
JOSEPH GRAHAM,
Appellee.

Opinion
No. 20140979-CA
Filed January 22, 2016

Second District Court, Ogden Department
The Honorable Scott M. Hadley
No. 100906102

S. Brook Millard, Attorney for Appellants
Robert G. Wright, Brandon B. Hobbs, and Zachary E.
Peterson, Attorneys for Appellee

JUSTICE JOHN A. PEARCE authored this Opinion, in which JUDGE
MICHELE M. CHRISTIANSEN and SENIOR JUDGE RUSSELL W. BENCH
concurred.1

PEARCE, Justice:

¶1 Dennis Belnap, Jennifer Abel, Zachary Collett, Alicia
Brierley, and Derek Belnap brought this wrongful death and
personal injury action against Ogden Regional Medical Center
(ORMC); Joseph Graham, M.D.; and other, unknown

1. Justice John A. Pearce participated in this case as a member of
the Utah Court of Appeals. He became a member of the Utah
Supreme Court before this decision issued. Senior Judge Russell
W. Bench sat by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 11-201(6).
Belnap v. Graham

defendants, following the untimely death of Patricia Belnap. The
district court granted Graham’s motion for summary judgment
on the claims against him after concluding that the plaintiffs had
failed to provide admissible evidence to create a question of fact
with regard to those claims. We affirm.

BACKGROUND

¶2 On January 4, 2008, fifty-three-year-old Patricia Belnap
(Patricia) underwent heart valve replacement surgery at ORMC.
Graham performed the surgery and was Patricia’s post-surgery
treating physician. Initially, Patricia’s recovery at ORMC was
relatively uneventful, although her ongoing low blood platelet
count caused some concern. Before she was discharged from
ORMC, Patricia allegedly complained to the nursing staff that
she was bleeding from her nose and suffering from mouth sores.
The nursing staff did not inform Graham of these symptoms,
and he authorized Patricia’s discharge from ORMC on January
11.

¶3 Upon returning home, Patricia’s nose began to bleed
again. Patricia returned to ORMC and was readmitted in the
early morning hours of January 12. Blood tests revealed that
Patricia’s blood platelet count was at a dangerously low level,
and ORMC administered platelet and blood plasma
transfusions. At about 4:00 a.m. on January 13, a nurse
discovered Patricia in her room, unresponsive. At 8:05 a.m.,
Patricia was pronounced dead.

¶4 Patricia’s husband and four children (collectively, the
Belnaps) sued ORMC, Graham, and unknown defendants for
wrongful death and personal injury. The Belnaps’ complaint
alleged medical negligence in the post-surgical care that the
defendants had provided to Patricia. Particularly, the Belnaps
advanced two theories of negligence against Graham. First, they
alleged that Graham breached his duty of care to properly chart
his treatment of Patricia when he failed to make progress notes

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Belnap v. Graham

on January 8, 9, and 11. Second, the Belnaps alleged that Graham
breached his duty of care by failing to examine Patricia on
January 11, the day that Graham authorized her discharge from
ORMC.

¶5 To support their claims of negligence against Graham, the
Belnaps presented the expert testimony of Paul Brown, M.D. In
his deposition testimony, Brown conceded that the alleged flaws
in Graham’s charting of Patricia’s care did not cause Patricia’s
death. However, Brown testified that it was his expert opinion
that Graham violated the applicable standard of care by failing
to examine Patricia on January 11 before discharging her from
ORMC. Brown testified that in his opinion, if Patricia had been
given the proper treatment, she would likely not have died.

¶6 Brown testified that there were two bases for his opinion
that Graham had failed to examine Patricia on the day of her
discharge. First, Brown relied on statements made by Patricia to
her husband, Dennis Belnap (Husband), and to her daughter,
Alicia Brierley (Daughter): Husband testified that as Patricia was
being discharged on January 11, she told Husband that ‚no
doctor had been to see her that morning, that day.‛ Daughter
testified that later on January 11, once Patricia was at home,
Patricia told Daughter that she had not seen a doctor before she
was discharged. Second, Brown relied on the fact that Patricia’s
medical file did not contain a progress note indicating that
Graham had examined her on January 11. Brown testified to his
opinion that the absence of such a note was evidence that
Graham did not see Patricia on the day of discharge.

¶7 Graham moved for summary judgment, relying on his
own deposition testimony that he had examined Patricia on the
morning of January 11, between 7:00 and 7:30. Graham argued
that the Belnaps’ only evidence to the contrary—Patricia’s
statements to Husband and Daughter and the absence of a
progress note—constituted inadmissible hearsay. According to
Graham, Brown’s expert opinion was premised entirely on the
hearsay evidence and could therefore not serve to make a prima

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Belnap v. Graham

facie showing of medical negligence by Graham. The district
court agreed and granted Graham’s motion for summary
judgment. The district court certified its summary judgment
order with regard to the Belnaps’ claims against Graham as final
pursuant to rule 54(b) of the Utah Rules of Civil Procedure.2 The
Belnaps appeal.

ISSUES AND STANDARDS OF REVIEW

¶8 The Belnaps argue that both Patricia’s statements to
Husband and Daughter and the absence of a January 11 progress
note are admissible because they fall within exceptions to the
prohibition on hearsay. Evaluating the admissibility of evidence
under the hearsay exceptions ‚requires the application of facts to
the legal requirements of the rule,‛ and the district court ‚has
some discretion in making this determination.‛ Salt Lake City v.

2. The Belnaps’ claims against the remaining parties, including
ORMC, remain pending before the district court. The Belnaps
opposed Graham’s motion to certify his summary judgment
order as final, but they did not appeal the district court’s
decision to certify the order. Nevertheless, ‚the failure of a party
to raise an issue of subject matter jurisdiction is not dispositive,‛
and such an issue ‚can be raised at any time by either party or
by the court.‛ Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d
1099, 1100 (Utah 1991) (citation and internal quotation marks
omitted). At oral argument, this court asked a number of
questions concerning the district court’s decision to certify. After
review of the district court’s certification decision, as well as the
memoranda filed in support of and in opposition to Graham’s
motion to certify, we are assured that the district court did not
err in granting the motion and that we have jurisdiction to
consider the merits of the appeal. See generally id. at 1104–05;
Central Utah Water Conservancy Dist. v. Upper E. Union Irrigation
Co., 2013 UT 67, ¶¶ 40–42, 321 P.3d 1113.

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Belnap v. Graham

Williams, 2005 UT App 493, ¶ 10, 128 P.3d 47. The Belnaps
further argue that even if this evidence constitutes inadmissible
hearsay, Brown could nevertheless rely on it to form his expert
opinion and the district court therefore erred by excluding
Brown’s opinion. ‚A decision to admit or exclude expert
testimony is left to the discretion of the trial court, and that
decision will not be reversed unless it constitutes an abuse of
discretion.‛ Ross v. Epic Eng'g, PC, 2013 UT App 136, ¶ 11, 307
P.3d 576 (citation and internal quotation marks omitted).

ANALYSIS

I. Patricia’s Statements

¶9 We first examine the admissibility of Patricia’s statements
to Husband and Daughter that Graham did not examine her on
the day of her discharge from ORMC. The Belnaps concede that
the statements constitute hearsay, which is generally
inadmissible. See Utah R. Evid. 801(c) (‚‘Hearsay’ means a
statement that: (1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence
to prove the truth of the matter asserted in the statement.‛); id. R.
802 (‚Hearsay is not admissible except as provided by law or by
these rules.‛). However, the Belnaps argue that one or both of
the statements qualify under exceptions to the hearsay rule as
statements of present sense impression, see id. R. 803(1);
statements of then-existing mental, emotional, or physical
condition, see id. R. 803(3); and statements made for medical
diagnosis or treatment, see id. R. 803(4).

¶10 Rule 803(1) of the Utah Rules of Evidence provides an
exception to the rule against hearsay for statements ‚describing
or explaining an event or condition, made while or immediately
after the declarant perceived it.‛ Id. R. 803(1). The Belnaps argue
that Patricia’s statements fall within this exception because each
‚described the event of discharge, at the time of discharge
(while) with [Husband], and upon arrival home from discharge

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(immediately after) to [Daughter].‛ However, we agree with the
district court’s determination that Patricia’s statements did not
qualify for admission under rule 803(1) for the purpose the
Belnaps sought to use them.

¶11 As the district court noted, rule 803(1) contemplates a
statement that is made during or immediately after a discrete
event or condition, such that the statement is offered to describe
the event or condition as the declarant is perceiving it or
immediately thereafter. See Utah R. Evid. 803(1). The Belnaps
argue that the event Patricia was describing in her statements
was the ‚event of discharge.‛ But Graham did not seek summary
judgment on the ground that he had examined Patricia at the
precise time she was discharged; rather, he presented competent
evidence that he had examined her earlier on January 11,
between 7:00 and 7:30 a.m. Therefore, to defeat Graham’s motion
for summary judgment, the Belnaps needed to present
admissible evidence that Graham did not examine her during
that timeframe,3 and it is that timeframe that is relevant to our
rule 803(1) analysis.

¶12 The record on appeal does not indicate the exact time of
Patricia’s statements, but Husband testified that he did not even
arrive at ORMC on January 11 until ‚[a]round noon,‛ and
Patricia’s statement to Daughter occurred even later than that.
Thus, Patricia made her statement several hours after the
purported examination that Graham described in his testimony.
This is too great of a time interval to allow the statements to
qualify for admission under rule 803(1). See Scott v. HK
Contractors, 2008 UT App 370, ¶ 8, 196 P.3d 635 (holding that
statements made two hours after an event did not qualify for

3. Brown, the Belnaps’ expert witness, conceded that if Graham
examined Patricia ‚on the day of discharge, as he’s testified,‛
then he ‚met the standard of care by examining and seeing the
patient.‛

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admission under rule 803(1), because ‚the exception requires
that the statement be contemporaneous with the event‛); see also
State v. Smith, 909 P.2d 236, 240 (Utah 1995) (noting that rule
803(1)’s ‚‘present sense impression’‛ exception requires
statements to be ‚strictly contemporaneous‛ with the event or
condition described). For this reason, we affirm the district
court’s ruling that rule 803(1) does not render Patricia’s
statements admissible to defeat Graham’s summary judgment
motion.

¶13 Rule 803(3) of the Utah Rules of Evidence also excepts
from the hearsay rule

statement[s] of the declarant’s then-existing state of
mind (such as motive, intent, or plan) or emotional,
sensory, or physical condition (such as mental
feeling, pain, or bodily health), but not including a
statement of memory or belief to prove the fact
remembered or believed unless it relates to the
validity or terms of the declarant’s will.

Utah R. Evid. 803(3). The Belnaps argue that Husband ‚testified
that in conjunction with the release process wherein [Patricia]
was describing her condition to the nurse that she stated that she
did not see a doctor that day.‛ ‚As such,‛ the Belnaps argue,
‚the hearsay statements are within this exception and
admissible.‛

¶14 Again, we agree with the district court that the exception
does not apply. Patricia’s statements that Graham had not
examined her prior to discharge do not, on their face, appear to
be the kind of ‚statement[s] of the declarant’s then-existing state
of mind (such as motive, intent, or plan) or emotional, sensory,
or physical condition (such as mental feeling, pain, or bodily
health)‛ that are admissible under rule 803(3). See Utah R. Evid.
803(3). However, to the extent that Patricia’s statements could
qualify as statements of her then-existing state of mind or

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personal condition, the Belnaps offered them to refute Graham’s
testimony that he had examined Patricia on January 11. The
statements have evidentiary value for that purpose only because
they relay Patricia’s reflections on the events (or non-events) of
January 11—i.e., her memories or beliefs about whether she had
been examined that day. Thus, the Belnaps sought to use
Patricia’s statements as, in the language of rule 803,
‚statement*s+ of memory or belief [offered] to prove the fact
remembered or believed.‛ See id. But such statements are
expressly excluded from rule 803(3)’s hearsay exception unless
they pertain to the validity or terms of the declarant’s will
(which these statements clearly do not). See id.

¶15 Finally, rule 803(4) of the Utah Rules of Evidence allows
for the admissibility of hearsay statements that are ‚made for—
and [are] reasonably pertinent to—medical diagnosis or
treatment‛ and describe ‚medical history; past or present
symptoms or sensations; their inception; or their general cause.‛
Id. R. 803(4); see also Hansen v. Heath, 852 P.2d 977, 979 (Utah
1993) (‚If the statement meets both *of rule 803(4)’s+
qualifications, it is admissible because of the ‘patient’s strong
motivation to be truthful’ when discussing his or her medical
condition with a doctor.‛ (quoting Fed. R. Evid. 803(4) advisory
committee note)). The Belnaps argue that Patricia’s statements
satisfy this exception because ‚the statements were describing
[Patricia’s+ medical history, to wit; no doctor had seen her before
she was discharged from the hospital.‛

¶16 As to this exception, the district court stated that Patricia’s
statements ‚pertained to her general concern that she was not
examined and not the existence of symptoms and sensations for
the purposes of obtaining treatment and diagnosis.‛ The district
court also noted that the statements ‚were not made to health
care providers, but instead to family members.‛ Based on these
findings, the district court ruled that the exception did not apply.

¶17 We agree with the district court’s ultimate ruling, if not
every step of its reasoning. Patricia’s statements could be

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characterized as statements of her (very recent) medical history,
and we see no express requirement in rule 803(4) that limits the
exception to statements made directly to medical providers, cf.
Fed. R. Evid. 803(4) advisory committee note (‚Under the
[medical diagnosis or treatment] exception the statement need
not have been made to a physician. Statements to hospital
attendants, ambulance drivers, or even members of the family
might be included.‛). Nevertheless, there is nothing about
Patricia’s statements to suggest that they were made for
purposes of medical treatment or diagnosis, as opposed to a
more general purpose of informing Husband and Daughter
about Patricia’s recollection of her experience leading up to her
discharge. We cannot say that the district court exceeded its
discretion when it found that the statements were not made for
purposes of medical diagnosis or treatment as required by rule
803(4).

¶18 In sum, we affirm the district court’s rulings that
Patricia’s hearsay statements to Husband and Daughter that she
had not seen a doctor on the day of her discharge do not fall
within any identified exception to the hearsay rule. Because
Patricia’s statements constitute hearsay and no exception
applies, the district court properly refused to consider the
statements as evidence opposing Graham’s summary judgment
motion.

II. The Absence of a January 11 Progress Note

¶19 The Belnaps also seek to use the absence of a January 11
progress note in Patricia’s hospital records to demonstrate that
Graham had failed to examine Patricia on that day, the day of
her discharge. The district court acknowledged that the absence
of such a record can be admitted into evidence if its proponent
satisfies the requirements of rule 803(6) and rule 803(7) of the
Utah Rules of Evidence. However, the district court ruled that
the Belnaps had failed to provide adequate foundation under

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those rules and determined that the absence of the progress note
was therefore inadmissible as hearsay.

¶20 Rule 803(6) of the Utah Rules of Evidence establishes an
exception to the rule against hearsay evidence for records of
regularly conducted activity.4 Pursuant to rule 803(6), the
hearsay rule does not bar admission of ‚*a+ record of an act,
event, condition, opinion, or diagnosis,‛ if

(A) the record was made at or near the time by—or
from information transmitted by—someone with
knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization,
occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of
that activity;
(D) all these conditions are shown by the testimony
of the custodian or another qualified witness, or by
a certification that complies with Rule 902(11)
or (12) or with a statute permitting certification;
and
(E) neither the source of information nor the
method or circumstances of preparation indicate a
lack of trustworthiness.

Utah R. Evid. 803(6).

¶21 Rule 803(7), on which the Belnaps rely, is essentially the
inverse of rule 803(6). Whereas rule 803(6) allows a regularly
kept record to show that an event occurred, rule 803(7) permits

4. The hearsay exception set forth in rule 803(6) of the Utah Rules
of Evidence is commonly known as the ‚business records
exception.‛ See, e.g., Portfolio Recovery Assocs., LLC v. Migliore,
2013 UT App 255, ¶¶ 7–9, 314 P.3d 1069.

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the absence of a regularly kept record to show that an event did
not occur. See id. R. 803(7). In order for the absence of a record to
be admissible under rule 803(7), it must satisfy the definition set
forth in that rule:

Evidence that a matter is not included in a record
described in paragraph (6) if:
(A) the evidence is admitted to prove that the
matter did not occur or exist;
(B) a record was regularly kept for a matter of that
kind; and
(C) neither the possible source of the information
nor other circumstances indicate a lack of
trustworthiness.

Id.

¶22 Because rule 803(7) incorporates rule 803(6)’s
requirements for admission as a ‚record,‛ the proponent of
evidence under rule 803(7) must establish each of the
foundational requirements enumerated in rule 803(6). See id.
(providing for the admissibility of ‚[e]vidence that a matter is
not included in a record described in paragraph (6)‛ (emphasis
added)); cf. United States v. Regner, 677 F.2d 754, 762 (9th Cir.
1982) (explaining that ‚testimony as to the nature of
recordkeeping‛ is necessary under rule 803(7) of the Federal
Rules of Evidence, because ‚803(7) is based on 803(6)‛); Morris v.
B.C. Olympiakos, SFP, 721 F. Supp. 2d 546, 551 (S.D. Tex. 2010)
(‚Since Rule 803(7) is based on Rule 803(6), the testimony of the
custodian of the records or qualified witness is required before
evidence may be received under Rule 803(7).‛ (footnote
omitted)).

¶23 ‚The trial judge is given great deference on the issue of
the adequacy of foundation.‛ State v. Sutton, 707 P.2d 681, 684
(Utah 1985); see also In re Marquez, 560 P.2d 342, 342–43 (Utah
1977) (reviewing a foundational ruling for abuse of discretion).

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Here, the only foundation the Belnaps offered was Brown’s
expert opinion that there should have been a note in Patricia’s
file if Graham had examined her on the day of discharge. Brown
testified,

[M]edically and legally, we need to have notes.
And that is what proves you were there, shows the
thought process, shows that you did it. So, you
know, I think the fact that the medical records
business of the discharge summary, the operative
notes, three times where you weren’t there, either
shows a complete lack of concern for the medical
record, or in fact you weren’t really there.

The district court ruled that Brown’s opinion testimony did not
satisfy the foundational requirements of rule 803(6) and 803(7).
The court’s order explained,

*N+othing in *the Belnaps’+ memorandum or
attached exhibits demonstrates that these records—
specifically medical progress notes—were
regularly conducted and kept (as shown by the
testimony of the custodian of the records or other
qualified witness). Instead, [they] jump right to the
absence of a medical progress note, without benefit
of the proper procedural foundation which assures
the veracity of such an assertion, and rely upon the
opinion of an expert to bolster the claim.

(Citation omitted.)

¶24 We cannot say that the district court exceeded the bounds
of its discretion in ruling that there was insufficient foundation
to admit the evidence of the absent note. Brown’s testimony was
based on the standard of care for medical providers, i.e., what
should have happened if Graham and ORMC followed industry
practices regarding medical charting. The district court did not

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err in determining that Brown’s testimony failed to establish the
actual regular record-keeping practices at ORMC, as required by
rule 803(6) and 803(7). It is the unlikelihood of deviation from
actual regular practices that underlies the rule 803(7) exception
for absent records. The Belnaps presented no testimony as to
ORMC’s actual recordkeeping practices. In other words, Brown
laid a foundation to testify about what ORMC’s and Graham’s
regular practices should have been (if they followed industry
standards) but did not provide a foundation to testify about
what ORMC’s and Graham’s practices actually were. The district
court did not abuse its discretion in determining that there was
insufficient foundation to admit the absence of a January 11
progress note under rule 803(7).

III. Brown’s Reliance on Hearsay

¶25 Finally, the Belnaps argue that even if Patricia’s
statements and the absence of a January 11 progress note are not
admissible under exceptions to the hearsay rule, Brown could
still rely on that evidence to form his expert opinion. The
Belnaps rely on rule 703 of the Utah Rules of Evidence, which
provides that when an expert bases his or her opinion on facts or
data upon which ‚experts in the particular field would
reasonably rely,‛ the facts or data ‚need not be admissible for
the opinion to be admissible.‛ Utah R. Evid. 703.

¶26 The Utah Supreme Court has recognized that ‚expert
evidence is sometimes justifiably based in part on evidence
obtained outside the courtroom—even evidence of the
adjudicatory facts in dispute.‛ Edwards v. Didericksen, 597 P.2d
1328, 1332 n.2 (Utah 1979). ‚But such evidence is usually the type
that an expert relies upon as a matter of course in forming
opinions and is sufficiently reliable to warrant an opinion based
thereon.‛ Id.

¶27 With respect to Patricia’s statements to Husband and
Daughter, we see nothing about Brown’s testimony that would
have allowed the district court to conclude that those were the

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types of statements upon which a medical expert would
ordinarily, reasonably rely. Instead, it appears that the Belnaps
were seeking to use Brown’s testimony as a ‚conduit‛ for the
very hearsay statements that they would be prohibited from
otherwise introducing. See State v. Schreuder, 726 P.2d 1215, 1225
(Utah 1986). The Utah Supreme Court has rejected the
proposition that otherwise inadmissible hearsay may come into
evidence as a matter of course under the guise of expert
testimony. See id. (‚A psychiatrist or a psychologist of course
cannot be made a conduit for testifying in court as to any and all
out-of-court statements made.‛). Here, Brown’s reliance on
Patricia’s statements evokes the expert testimony the supreme
court rejected in Edwards v. Didericksen, 597 P.2d 1328 (Utah
1979), wherein the court stated that ‚*t+he interjection of such
hearsay testimony, cloaked in the form of an expert opinion,
would have been impermissible and potentially highly
prejudicial,‛ id. at 1332. The district court did not err in
disregarding Brown’s testimony to the extent it was based on
Patricia’s statements.

¶28 Brown’s inference from the absence of a January 11
progress note presents a somewhat closer issue, in that the
inference arises from Brown’s application of his medical
expertise to materials—Patricia’s medical records—that are
regularly relied upon by experts in his field. Nevertheless, we
affirm the district court’s determination that the Belnaps failed to
lay an adequate foundation for Brown’s interpretation of the
absence of a progress note.

¶29 ‚The determination of whether a proper foundation has
been laid for an expert opinion is . . . within the trial court’s
discretion and will not be disturbed absent a showing of clear
abuse.‛ Vitale ex rel. Christensen v. Belmont Springs, 916 P.2d 359,
361 (Utah Ct. App. 1996). As the district court noted, Brown’s
testimony failed to establish that progress notes ‚were regularly
conducted and kept‛ such that the absence of a note reliably
indicated that Graham failed to see Patricia on January 11. In this

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context, an adequate foundation could have included
knowledgeable testimony that Graham regularly made progress
notes each time he examined a patient, that Graham’s notes
regularly made their way into ORMC’s records, and that ORMC
regularly maintained those records.5 Absent such a foundational
showing by the Belnaps, we cannot conclude that the district
court abused its discretion in ruling that Brown’s opinion
regarding the absence of a medical progress note lacked
adequate foundation.

CONCLUSION

¶30 Patricia’s statements that no doctor saw her on the day of
her discharge are hearsay and do not qualify for admission
under the hearsay exceptions found in rules 803(1), 803(3), and
803(4) of the Utah Rules of Evidence. The absence of a progress
note from January 11 is also hearsay, and the Belnaps failed to
satisfy the admissibility requirements for such evidence found in
rules 803(6) and 803(7) of the Utah Rules of Evidence. Although
expert witnesses are not barred from considering some types of
hearsay in forming their opinions, the district court did not
abuse its discretion in disregarding Brown’s testimony in this
case.

¶31 Affirmed.

5. We reiterate that Brown’s testimony about the industry
standard of care—i.e., that these things should have happened—
is not the same as competent evidence that Graham and ORMC
did, in fact, regularly make and keep progress notes regarding
the type of patient examinations that Graham claims to have
conducted on the morning of Patricia’s discharge.

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