Wakefield v. Gutzman

2024 UT App 76

THE UTAH COURT OF APPEALS

ROBERT WAKEFIELD,
Appellant,
v.
DAVID A. GUTZMAN,
Appellee.

Opinion
No. 20220256-CA
Filed May 23, 2024

Fourth District Cou rt, Provo Department
The Honorable Robert A. Lund
No. 150400386

Emily Adams, Sara Pfrommer, and Freyja Johnson,
Attorneys for Appellant
Tawni J. Anderson and Tucker Finch Levis,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN D. TENNEY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Jared Wakefield died while he was undergoing routine
dental surgery. Jared’s father, Robert Wakefield, sued Dr. David
A. Gutzman, the anesthesiologist responsible for sedating Jared
during the procedure, alleging medical malpractice. 1 The case
proceeded to trial, and the jury returned a defense verdict, finding

1. Because Jared and Robert share the same last name, we refer to
them by their first names for clarity, with no disrespect intended
by the apparent informality. We also refer to the doctors by only
their last names throughout this opinion for convenience and
intend no disrespect.
Wakefield v. Gutzman

that Gutzman did not breach the standard of care. Thereafter, the
district court denied Robert’s post-trial motion seeking judgment
as a matter of law or a new trial. Robert now appeals, and we
affirm.

BACKGROUND

Jared’s Dental Surgery and Death

¶2 In June 2014, twenty-two-year-old Jared had surgery at the
Smile Center dental office to repair several cavities, place a crown,
and extract teeth. There were three medical professionals in the
room during the surgery: Dr. Dennis J. Blume, Tia Underwood,
and Gutzman. Blume was the general dentist performing the
dental work on Jared. Underwood was Blume’s dental assistant.
Gutzman was the dental anesthesiologist administering the
anesthesia.

¶3 Before Blume started performing the dental work,
Gutzman sedated Jared and placed a “throat pack” in Jared’s
throat. The throat pack was made up of three to four two-by-two-
inch gauze pads fanned out in the oral cavity above the throat.
The throat pack is used “to protect the airway” during a dental
procedure so that “nothing goes down the throat.”

¶4 After Blume completed the dental work, Gutzman
removed the throat pack. Once the throat pack was removed,
there was no gauze left in Jared’s mouth. But “right after” the
throat pack was removed, Blume or Underwood placed gauze at
the extraction sites to stop bleeding and absorb blood. The size
and type of gauze used to control the bleeding was identical to
that of the gauze used in the throat pack.

¶5 At this point, Jared was still sedated. Gutzman then began
to bring Jared out of sedation. Gutzman stopped the anesthesia,
started administering oxygen, and sat Jared up in his chair.

20220256-CA 2 2024 UT App 76
Wakefield v. Gutzman

Between five and ten minutes after Jared had been sitting up in
the chair recovering, he suddenly started coughing and moving
his arms and hands. Gutzman approached Jared and used his
fingers to remove the gauze that had been placed at the extraction
sites to control the bleeding. Jared continued to cough, which both
Blume and Gutzman encouraged because it meant he was
“moving air.” But then Jared made a “choking sign,” at which
point Gutzman recognized that although Jared was breathing it
“wasn’t adequate”; Jared was not getting enough air and he was
in “respiratory distress.” Thereafter, Gutzman attempted
multiple efforts to restore Jared’s airway, none of which were
successful.

¶6 Sometime after Jared went into respiratory distress, office
personnel at Smile Center called 911 to report that Jared was not
breathing but had a pulse. Shortly after paramedics arrived on
scene, Jared had no pulse. Paramedics transferred Jared to the
hospital, where he was resuscitated. A doctor in the critical care
unit at the hospital performed an evaluation of Jared’s airway. He
discovered a piece of white gauze sitting above the division
between the right and left lung; the gauze was restricting Jared’s
airway. The doctor removed the gauze, but Jared did not recover.
Two days later, Jared died from an anoxic brain injury.

Robert Files Suit Against Gutzman, Blume, and Smile Center

¶7 In 2015, Robert, on behalf of Jared’s estate, filed two
lawsuits. The first suit was against Gutzman and Blume, alleging
claims for medical malpractice and wrongful death. The second
suit was against Smile Center, alleging that Smile Center was
responsible for Jared’s death under the theory of respondeat
superior. Approximately one year after the lawsuits were filed,
the parties had a discovery dispute concerning the release of
Robert’s medical records related to his mental health, suffering,
and treatment, which Gutzman argued were relevant to Robert’s
wrongful death claim. At a hearing on the dispute, the district

20220256-CA 3 2024 UT App 76
Wakefield v. Gutzman

court indicated its belief that Robert’s psychological condition
was irrelevant because the complaint against Gutzman and Blume
alleging wrongful death was filed “on behalf of the decedent” and
not on behalf of Robert as an individual. See Estate of Faucheaux v.
City of Provo, 2019 UT 41, ¶¶ 10–14, 449 P.3d 112 (explaining that
Utah law “precludes an estate from bringing a wrongful death
claim on its own behalf” and holding that a wrongful death claim
“should be filed by the heirs of the decedent or by a personal
representative of an estate on the heirs’ behalf”).

¶8 Following the hearing, Robert moved to amend the
complaints in both cases to add himself and Jared’s mother as
plaintiffs individually. The court granted the motion as to the
Smile Center complaint but denied it as to the Gutzman and
Blume complaint. Thereafter, Robert filed several motions asking
the court to reconsider its ruling in the Gutzman and Blume case,
but the court denied those motions. In 2017, the cases were
consolidated. Shortly before trial, Robert settled the claims against
Blume and Smile Center.

The Department of Professional Licensing Petition and Subsequent
Stipulation

¶9 After Jared’s death, Gutzman self-reported the event to the
Utah Division of Professional Licensing (DOPL), which oversees
medical and dental licensing. In his letter reporting the event to
DOPL, Gutzman stated that Jared’s death was “[a] very
unfortunate, freak accident,” but he did not admit any “medical
malpractice,” “negligence,” or “wrongdoing.”

¶10 Without contacting Gutzman, DOPL investigated the
event and filed a notice of agency action to initiate a licensing
action through a formal adjudicative proceeding before an
administrative law judge. The notice explained that the action was
based on allegations contained in a verified petition prepared by
DOPL (the DOPL Petition). Gutzman was invited to respond to

20220256-CA 4 2024 UT App 76
Wakefield v. Gutzman

the “violations alleged” in the DOPL Petition. A two-day
evidentiary hearing was scheduled to allow both sides to present
their cases to a fact finder. At the close of the hearing, an
administrative law judge would make findings of fact,
conclusions of law, and recommendations.

¶11 The DOPL Petition did not include any findings of fact or
conclusions of law but was instead limited to allegations that were
“based upon information provided by witnesses and by a [DOPL]
investigator” as well as “information and belief the investigator
obtained during his investigation.” The allegations generally
summarize the events and, as relevant to this appeal, include an
allegation that Gutzman violated the standard of care in his
treatment of Jared. That allegation states,

A review of [Jared’s] dental records, medical
records, and the statements of [Gutzman and
Blume] was conducted by a board certified oral and
maxillofacial surgeon with significant training and
experience in delivering anesthesia to patients, who
provided an expert opinion to [DOPL] stating that
[Gutzman’s] treatment of [Jared] violated the
applicable standard of care . . . .

The unnamed expert opined that Gutzman violated the standard
of care in five ways, including by failing to place an adequate
throat pack and by failing to account for all the pieces of gauze
used during the procedure.

¶12 Ultimately, Gutzman and DOPL entered into a stipulation
and order (the Stipulation) in 2016, and as a result, the licensing
action never reached an evidentiary hearing. As part of the
Stipulation, DOPL made five findings of fact, three of which are
relevant here: (1) Gutzman sedated Jared during a dental
procedure; (2) “[f]ollowing the procedure, [Jared] aspirated a 2
inch by 2 inch piece of gauze”; and (3) Jared died from an anoxic

20220256-CA 5 2024 UT App 76
Wakefield v. Gutzman

brain injury due to aspiration of the gauze. “[W]hile neither
admitting nor denying the findings of fact,” Gutzman stipulated
that DOPL “believes the findings of fact may be considered
unprofessional conduct,” and he agreed to certain restrictions on
his license during a two-year probationary period.

The DOPL Petition Is Excluded From Trial

¶13 Prior to trial in the lawsuit filed by Robert, Gutzman
filed a motion in limine seeking to exclude “any evidence”
regarding the DOPL proceedings. He first argued that the
allegation in the DOPL Petition referencing the unnamed expert’s
opinion that Gutzman “breached the standard of care” was
hearsay that was not subject to a hearsay exception. Moreover, he
asserted that even if this allegation was excluded, “any mention
of a DOPL proceeding” should be excluded under rule 403 of the
Utah Rules of Evidence as more prejudicial than probative
because lay jurors unfamiliar with administrative proceedings
“would simply assume DOPL’s actions were correct.” He posited
that combatting this assumption would require a “trial within a
trial” to explain “all the reasons why the DOPL proceeding was
not the trial.”

¶14 In response, Robert argued that the DOPL Petition was
admissible under the hearsay exception for investigative reports
of a government agency. Regarding exclusion under rule 403,
Robert asserted that although the DOPL Petition was prejudicial,
it was not unfairly prejudicial and therefore it should be admitted.
According to Robert, “DOPL’s conclusion that the actions of
[Gutzman] fell below the standard of care do not ‘shift the fact
finder’s attention away from the proper method for resolving the
negligence issue.’” (Quoting Woods v. Zeluff, 2007 UT App 84, ¶ 7,
158 P.3d 552.)

¶15 The district court excluded the DOPL Petition but admitted
the Stipulation, reasoning as follows:

20220256-CA 6 2024 UT App 76
Wakefield v. Gutzman

I find as to this issue that the [DOPL Petition is] not
relevant. And [its] probative value is substantially
outweighed by the prejudicial effect because they
are just allegations. I find the converse is true as to
the [Stipulation]. I find the [Stipulation] to be
extremely relevant. In fact, it’s hard to think of any
evidence that would be more probative in this case
other than admissions by the doctor than the
findings of the licensing entity. That evidence is
extremely probative, and that document does fit
squarely within evidence Rule 803(8) as a public
record in that it sets out the factual findings of a
legally authorized investigation. DOPL is a state
agency. They are independent. They retained folks
outside of this case.

Lastly, the court noted that the Stipulation was not unduly
prejudicial because Gutzman “denied the underlying facts” and
he “denied liability.”

Trial

¶16 Having settled his claims against Blume and Smile Center,
Robert proceeded to trial solely against Gutzman. The main
question at trial was whether Gutzman breached the standard of
care in his treatment of Jared.

¶17 Robert called multiple fact witnesses during his case-in-
chief, including himself, Underwood, Blume, and Gutzman.

¶18 Underwood testified that neither she nor Gutzman
counted the number of gauze pieces before placing them in Jared’s
mouth. Relying on her contemporaneous notes from the day of
Jared’s procedure, Underwood testified that Jared began
coughing and choking “[o]nce treatment was completed.”
Although she could not remember precisely when Gutzman

20220256-CA 7 2024 UT App 76
Wakefield v. Gutzman

removed the throat pack, she explained that “[t]ypically it’s
removed when all of the dental work is completed.”

¶19 Blume testified that Gutzman was responsible for placing
and removing the throat pack. He did not remember the exact
point in the procedure when Gutzman had removed the throat
pack, but he agreed with Gutzman’s statement that it had been
removed “prior to Jared coughing and giving the choking sign.”
Blume admitted that “[t]he gauze placed at the extraction sites for
Jared . . . was placed either by [him] or [Underwood],” and he
agreed that Gutzman “[did] not place the gauze at the extraction
sites.” Moreover, Blume acknowledged that he did not count the
number of gauze pieces he placed in Jared’s mouth at the
extraction sites, even though he is “ultimately in charge of the
gauze at the extraction sites.”

¶20 Robert also called one expert, Dr. Joel E. Colley, to testify
about the standard of care. Colley is a “board-certified
anesthesiologist” with a certification in advanced cardiac life
support. He explained that although his training was slightly
different than Gutzman’s in that Colley had completed a “full
residency” whereas Gutzman had completed only one year of
training, both “occupy the same position with the patient.” In
addition, Colley had “worked with dental patients many times,”
and the responsibilities were always the same: “Airway
management, physiological management.”

¶21 Colley testified that Gutzman’s treatment of Jared fell
below the standard of care for several reasons. First, Jared had a
number of things in his mouth that were “loose” and
“unaccounted for.” Colley explained that the gauze used for
Jared’s throat pack should have been secured together and
“tagged,” meaning that the gauze is attached to “an 8- to 10-inch
string that stays outside the mouth so that it can be retrieved at all
times.” Moreover, every item put in Jared’s mouth, including each
individual piece of gauze, should have been counted both “before

20220256-CA 8 2024 UT App 76
Wakefield v. Gutzman

the procedure and after the procedure” to ensure that nothing was
left in the mouth.

¶22 Second, Colley opined that due to Jared’s size and the type
of procedure, Jared “should have been intubated from the
beginning.” Colley explained that Jared was under general
anesthesia during the procedure and that as a result he was
“totally out” and “not responding.”

¶23 Third, Colley testified that Gutzman’s responsibility to
protect Jared’s airway did not end when he removed the throat
pack. Rather, he testified that the responsibility of an
anesthesiologist “remains in force until the patient is actually
ready to be discharged from the facility.” Thus, according to
Colley, Gutzman was responsible for maintaining awareness of
any gauze left in Jared’s mouth during the recovery period, even
after he had removed the throat pack.

¶24 Fourth, Colley took issue with Gutzman’s care of Jared
after Jared’s airway had been obstructed. Colley opined that
Gutzman should have “quickly” realized that Jared had aspirated
a foreign object, at which point Gutzman was “obligated to do
anything” possible “to get past [the] obstruction.” Colley
concluded that Jared would have lived if Gutzman had followed
the correct emergency protocol.

¶25 During cross-examination, Colley testified that at the time
he was deposed, he had never performed a procedure where he
had personally placed tagged gauze in a patient’s mouth. He also
explained that he formed his opinions about the case before
reviewing the depositions of any of the treating providers,
including Gutzman. He conceded that “[t]he standard of care may
include more than one acceptable method of treatment,” and he
agreed that even “under the best of circumstances, under the best
of care, medical complications can and do occur without any fault
on the part of the medical team.”

20220256-CA 9 2024 UT App 76
Wakefield v. Gutzman

¶26 At the close of his case-in-chief, Robert moved for a
directed verdict on the issue of liability, arguing that he had met
all the elements of res ipsa loquitur, i.e., that Jared’s death would
not have happened unless Gutzman was negligent. The district
court denied the motion, finding it premature because Gutzman
had not yet fully presented his case and because res ipsa loquitur
“only provides an inference” of liability that “[t]he jury is entitled
to accept or reject.”

¶27 Gutzman presented his case-in-chief through his own
testimony and the testimony of two experts. For his part,
Gutzman testified that his “primary function” was to protect
Jared’s airway “during the procedure.” He maintained that he
“protected the airway during the procedure,” and he explained
that “[o]nce the procedure was done,” he “removed the throat
pack” and Blume or Underwood “place[d] the gauze for the
extraction sites.” Gutzman acknowledged that he did not know
the exact number of gauze pieces in Jared’s mouth at the time
Jared aspirated. However, he asserted that he was responsible for
preventing items from going down the airway only during the
procedure, meaning that after the procedure, he was “responsible
for the gauze [he] put in” but not for the gauze placed by Blume.

¶28 Gutzman’s first expert was Dr. Kim Keller, a general
dentist with a license to perform in-office conscious sedation. At
the outset of his testimony, Keller explained that he was qualified
to perform conscious sedation, which is “moderate sedation.” He
explained that a patient under moderate sedation remains awake
during the procedure; it is “unlike general anesthesia” or
unconscious sedation—the type of sedation Jared was under
during his procedure. Keller also stated that when working on a
patient in his own dental practice, he simultaneously performs
both the conscious sedation and the dental work.

¶29 After listening to Keller’s qualifications, Robert moved to
exclude him as an expert, arguing that Keller was “not qualified

20220256-CA 10 2024 UT App 76
Wakefield v. Gutzman

to testify as to the standard of care of anesthesia in the in-office
setting.” He asserted that Keller had never performed a “deep
sedation”; that he had never had a patient experience an
emergency airway blockage; and that even as a dentist, he had
never worked with or alongside an anesthesiologist. In response,
Gutzman noted that Keller would not be “offering any opinions
about deep sedation.” Rather, Keller would talk about the period
of time when Jared was in “moderate sedation,” “which is the
recovery period, which is where [Jared] was when he aspirated
the gauze.” As part of this, Keller would “talk about the gauze,”
including who placed it and whether it should have been tagged.
The district court overruled Robert’s objection and allowed Keller
to testify as an expert in the “limited area” identified by the
defense.

¶30 Keller opined that Jared was not deeply sedated at the time
he aspirated the gauze but rather, that he was “recovering out of
the deep sedation phase and entering into the moderate phase.”
Keller explained that recovery begins “when the medication
begins to flush out of your system,” which in this case occurred
once the dental procedure was complete and Gutzman stopped
administering sedation medication. Moreover, at the time he
aspirated the gauze, Jared was coughing, moving around in the
dental chair, and making a choking sign, all of which are,
according to Keller, “deliberate movements” that do not occur
when a patient is deeply sedated.

¶31 Keller testified that he had reviewed Gutzman’s deposition
and had no objections to Gutzman’s use of the throat pack. He
explained that Gutzman removed the throat pack at the end of the
procedure, which is when they are “typically” removed. In
addition, Gutzman reported that he counts the pieces of gauze
used in his throat packs, which suggests he exercises “great care.”

¶32 Based on his experience and review of Gutzman’s and
Blume’s depositions, Keller testified—over Robert’s objection—

20220256-CA 11 2024 UT App 76
Wakefield v. Gutzman

that “his understanding” was that the gauze Jared aspirated had
likely been placed by either Blume or Underwood. Keller then
stated that neither Blume nor Underwood counted the gauze
pieces prior to placing them and that it was the responsibility of
both Blume and Underwood to make sure that the gauze was
placed properly. Lastly, again over Robert’s objection, Keller
testified that Gutzman should not have initially suspected that
Jared’s respiratory distress was due to aspirated gauze.

¶33 Gutzman’s second expert was Dr. Jeffrey Anton Kurrus, a
pulmonologist and critical care expert. Kurrus opined that Jared
aspirated the gauze “when he was in recovery after the anesthetic
had been discontinued and when he had the initial cough.” He
explained that the gauze likely went all the way down into Jared’s
windpipe, where it would have been “impossible” for Gutzman
to see during his resuscitation efforts. Lastly, Kurrus testified that
Gutzman complied with the standard of care in his resuscitation
efforts with Jared.

¶34 At the close of the evidence, the district court instructed the
jury on the standard of care and on res ipsa loquitur. As reflected
on the special verdict form, the jury found that Gutzman did not
breach the standard of care in his treatment of Jared.

Post-Trial Motion

¶35 After trial, Robert filed a motion for judgment as a matter
of law or, alternatively, for a new trial. He argued the district court
should grant judgment as a matter of law on the res ipsa loquitur
theory because Robert met the initial burden of putting forth
evidence to invoke res ipsa loquitur and Gutzman did not put
forth any evidence to rebut it. In the alternative, Robert argued
the court should grant a new trial because Gutzman put on no
admissible evidence of the standard of care that rebutted Robert’s
expert.

20220256-CA 12 2024 UT App 76
Wakefield v. Gutzman

¶36 The district court denied the motion. In its ruling, the court
explained that Robert was not entitled to judgment as a matter of
law because the doctrine of res ipsa loquitur “provides only for a
permissive inference rather than a presumption of negligence,
which inference the finder of fact may choose to reject.” And the
court concluded that a new trial was not appropriate because
“ample evidence supports the jury’s verdict that [Gutzman] did
not breach the standard of care.”

ISSUES AND STANDARDS OF REVIEW

¶37 Robert now appeals, raising three issues for our review. 2
First, Robert argues the district court abused its discretion when
it excluded the DOPL Petition from evidence at trial. “We review
a trial court’s decision to admit or exclude evidence under rule
403 using an abuse of discretion standard. We therefore will not
overturn a lower court’s determination of admissibility unless it
is beyond the limits of reasonability.” State v. Downs, 2008 UT App
247, ¶ 6, 190 P.3d 17 (quotation simplified); see also State v. 633 East
640 North, 942 P.2d 925, 929 (Utah 1997) (“Trial courts have wide
latitude in making determinations of relevance, probativeness,
and prejudice under rules 401 and 403.”).

¶38 Second, Robert argues the district court abused its
discretion when it overruled objections to Keller’s expert
testimony. “The trial court has wide discretion in determining the
admissibility of expert testimony, and we will not reverse unless

2. Robert also argues the district court erred in denying his
motions to amend the complaint so that a proper plaintiff could
litigate the wrongful death claim. See supra ¶¶ 7–8. However,
Robert acknowledged in his briefs and again at oral argument
before this court that we need not consider this issue unless we
overturn the jury’s verdict. Because we conclude that the jury’s
verdict should stand, we do not address this issue.

20220256-CA 13 2024 UT App 76
Wakefield v. Gutzman

the decision exceeds the limits of reasonability.” Balderas v. Starks,
2006 UT App 218, ¶ 27, 138 P.3d 75 (quotation simplified).

¶39 Third, Robert argues the district court should have granted
his post-trial motion for judgment as a matter of law or for a new
trial. We review a court’s decision to grant or deny judgment as a
matter of law for correctness. See USA Power, LLC v. PacifiCorp,
2016 UT 20, ¶ 34, 372 P.3d 629. However, a court’s ruling on a
motion for a new trial based on insufficiency of the evidence is
reviewed for abuse of discretion. See id. ¶ 31.

ANALYSIS

¶40 Robert argues the jury’s verdict should be overturned
because the district court abused its discretion when it excluded
the DOPL Petition from evidence and overruled objections to
Keller’s expert testimony. In addition, Robert contends the court
should have granted his post-trial motion for judgment as a
matter of law or for a new trial. We address each argument in turn.

I. The DOPL Petition

¶41 The district court excluded the DOPL Petition from
evidence at trial on the grounds that it was “not relevant” and
because any probative value was substantially outweighed by its
potential prejudicial effect. Robert argues that the court abused its
discretion in making both determinations. Although we agree
with Robert that the court abused its discretion in concluding that
the DOPL Petition was “not relevant,” we do not agree that the
court abused its discretion in excluding the DOPL Petition on the
alternative ground that it did not satisfy the rule 403 balancing
test.

¶42 Under the Utah Rules of Evidence, only “[r]elevant
evidence is admissible.” Utah R. Evid. 402. Evidence is relevant
if “it has any tendency to make a fact more or less probable

20220256-CA 14 2024 UT App 76
Wakefield v. Gutzman

than it would be without the evidence” and “the fact is of
consequence in determining the action.” Id. R. 401. Taken
together, these rules “establish a very low bar that deems even
evidence with the slightest probative value relevant and
presumptively admissible.” State v. Bravo, 2015 UT App 17, ¶ 15,
343 P.3d 306 (quotation simplified), cert. denied, 352 P.3d 106 (Utah
2015).

¶43 In this case, the DOPL Petition meets the low bar for
relevancy. The primary issue at trial was whether Gutzman
breached the standard of care in his treatment of Jared. The
DOPL Petition was created by DOPL, the licensing agency tasked
with determining whether a professional has breached the
standard of care, in response to Gutzman’s self-report of Jared’s
death and complaints that Gutzman had engaged in
unprofessional conduct. DOPL determined that these complaints
warranted further investigation, and after obtaining additional
information from witnesses and a DOPL investigator, DOPL
concluded that it had enough information to file a formal
licensing action against Gutzman. Thus, the DOPL Petition was
relevant because it had some tendency to make it more or less
probable that Gutzman breached the standard of care; indeed, it
was created for the express purpose of initiating an administrative
proceeding to determine whether Gutzman had breached the
standard of care. The district court abused its discretion in
concluding otherwise. 3

3. At oral argument before this court, Gutzman acknowledged
that the DOPL Petition was at least somewhat relevant. Cf. State v.
Bravo, 2015 UT App 17, ¶ 15, 343 P.3d 306 (“Rules [401 and 402]
define relevance in binary terms: Either evidence is relevant
because it makes a fact of consequence more or less probable, or
it is not because it does not.” (quotation simplified)), cert. denied,
352 P.3d 106 (Utah 2015).

20220256-CA 15 2024 UT App 76
Wakefield v. Gutzman

¶44 But even if the DOPL Petition satisfied the relevancy
requirements under rules 401 and 402 and was therefore
presumptively admissible, the district court did not abuse its
discretion by excluding the DOPL Petition under rule 403. Under
rule 403, “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice.” Utah R. Evid. 403. When engaging in this
balancing test, the court “indulges a presumption in favor of
admissibility.” State v. Burke, 2011 UT App 168, ¶ 34, 256 P.3d 1102
(quotation simplified), cert. denied, 263 P.3d 390 (Utah 2011).
Evidence is unfairly prejudicial only if it “creates an undue
tendency to suggest decision on an improper basis.” Anderson-
Wallace v. Rusk, 2021 UT App 10, ¶ 23, 482 P.3d 822 (quotation
simplified), cert. denied, 496 P.3d 716 (Utah 2021). Put differently,
“it is evidence that may cause the jury to base its decision on
something other than the established propositions of the case.” Id.
(quotation simplified).

¶45 The district court concluded that the “probative value” of
the DOPL Petition was “substantially outweighed by the
prejudicial effect” because the statements contained in the DOPL
Petition are “just allegations.” Robert argues the court abused its
discretion in excluding the DOPL Petition on this basis because
the DOPL Petition “did not contain unsupported allegations”
but was instead the “product” of a DOPL investigation. We
disagree.

¶46 First, the probative value of the DOPL Petition was low. As
noted, the DOPL Petition was created by DOPL at the outset of an
administrative proceeding to determine whether Gutzman had
engaged in practices constituting unprofessional conduct. The
DOPL Petition contained unproved “allegations,” the validity of
which were to be determined by an administrative law judge
following an evidentiary hearing. Importantly, any disciplinary
action arising from the allegations would not occur until after the
close of an evidentiary hearing where both parties would be

20220256-CA 16 2024 UT App 76
Wakefield v. Gutzman

permitted to put on evidence. And any action at that point would
be supported by the administrative law judge’s findings of fact
and conclusions of law. 4

¶47 But Gutzman elected to forgo pursuing this route when he
entered into the Stipulation. By virtue of the Stipulation, the
parties’ need to submit evidence demonstrating the veracity of the

4. Robert cites Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), for
the proposition that a court may rely on opinions and conclusions
contained in an investigative report where the report was created
as part of an official investigation. See id. at 164. However, Beech
Aircraft is factually distinguishable from the case at hand. In that
case, an independent investigator, appointed on order of a United
States Navy commanding officer and pursuant to authority
granted in the Manual of the Judge Advocate General, was asked
to investigate a plane crash that occurred while a Navy aircraft
was participating in a flight training exercise. Id. at 156. In the six
weeks following the accident, the investigator completed a
thorough investigation, which included “a detailed
reconstruction of a possible set of events” that could have led to
the crash. Id. at 157. Then, based on this information, the
investigator prepared a comprehensive report outlining
“finding[s] of fact” and detailing his opinion of the cause of the
crash. Id. The report was also “supported by some 60
attachments.” Id. Here, the DOPL Petition was not created in
response to an investigation even remotely as thorough as the one
in Beech Aircraft, and it lacked the same indicia of trustworthiness
as did the investigative report prepared by the identified
investigator. Indeed, the allegation that Gutzman violated the
standard of care was merely based on “[a] review of [Jared’s]
dental records, medical records, and the statements of [Gutzman]
and [Blume].” This stands in stark contrast to the weeks long
investigation in Beech Aircraft and the fact that the investigator’s
opinions in that case were based on data obtained from a
reconstruction of the accident.

20220256-CA 17 2024 UT App 76
Wakefield v. Gutzman

allegations in the DOPL Petition was eliminated. As a result, there
was no way to evaluate the conclusions of the unnamed expert
who opined that Gutzman breached the standard of care. Indeed,
the expert never had to reveal his or her precise expertise or
training, and a finder of fact was not tasked with evaluating the
expert’s credibility, opinion, or bases for the opinion.

¶48 In contrast, the danger of unfair prejudice was high. Robert
sought to admit the DOPL Petition largely because he wanted the
jury to hear the unnamed expert’s opinion that Gutzman had
breached the standard of care. The district court could reasonably
conclude that admitting the DOPL Petition would “suggest
decision on an improper basis” by masking the untested
allegation as a finding by DOPL. See id. (quotation simplified).
And as Gutzman noted prior to trial, combatting such an
assumption would require a trial within a trial to explain the
difference between an administrative proceeding initiated by
DOPL and a judicial action, to say nothing of the difference
between a stipulated resolution and an administrative
determination following an evidentiary hearing.

¶49 Based on the foregoing, the district court did not abuse its
discretion when it excluded the DOPL Petition from evidence at
trial. 5

5. Robert further contends that even if the district court properly
excluded the DOPL Petition under rule 403, it was nevertheless
an abuse of the court’s discretion to prohibit Colley from
consulting or relying upon the DOPL Petition to formulate his
expert opinion. Specifically, Robert posits that the court’s blanket
prohibition prevented Colley from testifying that Gutzman’s
actions “violated the standard of care as established by DOPL.”
But this argument again conflates the import of the allegations in
the DOPL Petition. At no point did DOPL ever conclude that
(continued…)

20220256-CA 18 2024 UT App 76
Wakefield v. Gutzman

II. Expert Testimony

¶50 Next, Robert argues the district court abused its discretion
when it admitted certain portions of Keller’s testimony over
Robert’s objection. Specifically, Robert contends the court
allowed testimony from Keller that was (1) outside the scope of
Keller’s expertise and (2) speculative. We address each objection
in turn.

A. Scope of Expertise

¶51 At trial, defense counsel asked Keller his opinion on
“whether or not [Gutzman] should have initially suspected an
aspirated gauze.” Robert objected to the question on the basis that
it went to “the standard of care,” which was beyond the scope of
Keller’s expertise. The district court overruled the objection.
Keller then testified that Gutzman “wouldn’t have been able to
know” that Jared aspirated gauze. Robert contends the court
should not have admitted this testimony because Keller “was not
qualified to opine on the standard of care for an anesthesiologist
obligated to protect the airway of a patient undergoing a dental
procedure that required unconscious deep sedation.” This
argument misses the mark.

¶52 “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.” Sprague
v. Avalon Care Center, 2019 UT App 107, ¶ 29, 446 P.3d 132
(quotation simplified). However, “an exception to this rule is

Gutzman’s actions fell below the standard of care. Rather, the only
finding actually admitted on this point came in through the
Stipulation, wherein Gutzman agreed with DOPL that his actions
“may be considered unprofessional conduct.”

20220256-CA 19 2024 UT App 76
Wakefield v. Gutzman

when an expert is knowledgeable about the applicable standard
of care.” Id. (quotation simplified).

¶53 Under rule 702(a) of the Utah Rules of Evidence, the district
court must “consider whether 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.” Eskelson ex rel. Eskelson
v. Davis Hosp. & Med. Center, 2010 UT 59, ¶ 9, 242 P.3d 762 (quoting
Utah R. Evid. 702(a)). The court is given wide discretion under
this rule “to determine the admissibility of expert testimony, and
to determine if the expert witness is qualified to give an opinion
on a particular matter.” Dikeou v. Osborn, 881 P.2d 943, 947 (Utah
Ct. App. 1994) (quotation simplified). We “will not reverse that
determination on appeal in the absence of a clear showing of
abuse.” Robb v. Anderton, 863 P.2d 1322, 1326 (Utah Ct. App. 1993)
(quotation simplified).

¶54 Here, it is undisputed that Keller was not licensed to
perform deep sedation. But the issue in this case did not concern
Gutzman’s administration of general anesthesia. Rather, the issue
was what occurred after Blume had completed Jared’s dental work
and Gutzman had stopped giving Jared sedation medication—or,
put differently, once Jared was moderately sedated and in the
recovery period.

¶55 Keller testified extensively about his qualifications and
experience performing moderate sedation. And Keller’s
opinions—including whether Gutzman should have suspected
that Jared aspirated gauze—were based on only the events that
occurred when Jared was in a moderately sedated state. Indeed,
Keller explained that at the time Jared aspirated the gauze, he was
coughing, moving around, and choking, which are “deliberate
movements” that are not present when a patient is deeply
sedated. Thus, because Keller was opining on an issue that was
squarely within his scope of expertise, we cannot say it was an

20220256-CA 20 2024 UT App 76
Wakefield v. Gutzman

abuse of discretion for the court to admit this portion of Keller’s
challenged testimony.

B. Speculative Testimony

¶56 During Keller’s testimony, defense counsel asked, “[W]hat
is your understanding [of] who placed [the] gauze [that Jared
aspirated]?” Keller responded, “It would have been either
[Blume] or [Underwood], the assistant.” Robert objected on the
ground that the question called for speculation since Keller “has
no idea who placed the gauze.” The district court overruled the
objection because that statement was “in the deposition
testimony” of Keller. Robert contends this was an abuse of the
court’s discretion because “whether or not [Keller] discussed this
point in his deposition had nothing to do with whether the
testimony was too speculative to allow its admission.”

¶57 To be admissible, expert testimony must be “reliable,”
“based upon sufficient facts or data,” and the opinions must be
“reliably applied to the facts.” Utah R. Evid. 702(b). The party
wishing to rely on the expert’s testimony must make a “threshold
showing” on each point. See id. That threshold requires “only a
basic foundational showing” of reliability, and it does not require
that “the opinion is indisputably correct.” Utah R. Evid. 702
advisory committee’s notes. “Indeed, we allow experts latitude to
interpret the facts before them.” Eskelson, 2010 UT 59, ¶ 16.
“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.” Id.
(quotation simplified).

¶58 Keller’s testimony was sufficient to satisfy the threshold
showing required to qualify for admission under rule 702(b). As
noted, Keller was admitted as an expert based on his experience
as a general dentist administering moderate sedation. And Keller

20220256-CA 21 2024 UT App 76
Wakefield v. Gutzman

explained at trial that the opinions provided in his deposition
were based on his review of Jared’s medical records and the
depositions of, among other experts, Gutzman and Blume.
Importantly, both Gutzman and Blume had testified that
Gutzman removed the throat pack prior to Blume placing gauze
at the extraction sites. Based on the timing of Jared’s respiratory
distress, i.e., that it occurred after the throat pack was removed
and while Jared was moderately sedated and in the “recovery
phase,” Keller concluded that Gutzman did not place the gauze
Jared aspirated. Thus, Keller’s opinion was expressly based on the
application of his “specialized knowledge” dealing with patients
in the recovery period to the testimony provided by Gutzman and
Blume, which were “the facts in evidence.” See id. ¶ 19. As a result,
the district court did not abuse its discretion in admitting this
testimony.

III. Post-Judgment Motion

¶59 Lastly, Robert argues the district court should have
granted his motion for judgment as a matter of law or, in the
alternative, for a new trial. We disagree and accordingly affirm
the court’s denial of this motion.

A. Motion for Judgment as a Matter of Law

¶60 In a post-trial motion, Robert asked the district court to
grant judgment as a matter of law on his medical malpractice
claim because he had established that Gutzman was negligent
under the principle of res ipsa loquitur and the evidence was “so
strong as to compel a finding of negligence.” The court denied the
motion, reasoning that (1) res ipsa loquitur “provides only for a
permissive inference rather than a presumption of negligence,
which the finder of fact may choose to reject” and (2) “ample
evidence supports the jury’s verdict that [Gutzman] did not
breach the standard of care.” The court was correct in both
regards.

20220256-CA 22 2024 UT App 76
Wakefield v. Gutzman

¶61 Rule 50 of the Utah Rules of Civil Procedure permits a
district court to grant judgment as a matter of law only where “the
court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party” on a claim or
defense. Utah R. Civ. P. 50(a)(1). When considering a rule 50
motion, the “court must look at the evidence and all reasonable
inferences in a light most favorable to the nonmoving party.”
Franklin v. Stevenson, 1999 UT 61, ¶ 6, 987 P.2d 22. “We will affirm
the denial of a motion for judgment as a matter of law when a
review of the evidence in a light most favorable to the non-moving
party demonstrates that reasonable minds could disagree with the
ground asserted for the motion.” Accesslex Inst. v. Philpot, 2023 UT
App 21, ¶ 34, 526 P.3d 1282 (quotation simplified).

¶62 “In a medical malpractice action, the plaintiff must
establish that the physician performed below the applicable
standard of care, proximately causing injury to the plaintiff.” Pete
v. Youngblood, 2006 UT App 303, ¶ 20, 141 P.3d 629. As a general
rule, “the standard of care and the defendant’s breach of that
standard must be established through expert testimony.” Id. “Res
ipsa loquitur is an exception to the general rule.” Dalley v. Utah
Valley Reg’l Med. Center, 791 P.2d 193, 196 (Utah 1990).

¶63 “Res ipsa loquitur is essentially an evidentiary rule that
allows an inference of negligence to be drawn when human
experience provides a reasonable basis for concluding that an
injury probably would not have happened if due care had been
exercised.” King v. Searle Pharms., Inc., 832 P.2d 858, 861 (Utah
1992). To invoke the doctrine, the plaintiff must establish

(1) the accident was of a kind which in the ordinary
course of events, would not have happened had the
defendant[] used due care, (2) the instrument or
thing causing the injury was at the time of the
accident under the management and control of the
defendant, and (3) the accident happened

20220256-CA 23 2024 UT App 76
Wakefield v. Gutzman

irrespective of any participation at the time by the
plaintiff.

Youngblood, 2006 UT App 303, ¶ 22 (quotation simplified). A
plaintiff who makes a prima facie showing of these elements
is “entitled to a rebuttable inference of negligence under the
doctrine of res ipsa loquitur.” Id. ¶ 24 (emphasis added)
(quotation simplified); see also Stevens-Salt Lake City, Inc. v. Wong,
259 P.2d 586, 588 (Utah 1953) (“The doctrine of res ipsa
loquitur merely allows an inference of negligence from the
happening of the accident.”); cf. Ballow v. Monroe, 699 P.2d 719, 723
(Utah 1985) (“Res ipsa does not establish a presumption, either
rebuttable or irrebuttable.” (quotation simplified)). Ultimately,
however, “it is the province of the fact finder (the jury or the
court where no jury is sitting) to draw or to reject such inference.”
Loos v. Mountain Fuel Supply Co., 108 P.2d 254, 258 (Utah 1940)
(citing Zoccolillo v. Oregon Short Line R.R. Co., 177 P. 201 (Utah
1918)).

¶64 Here, the bulk of Robert’s complaint with the district
court’s decision to not grant judgment as a matter of law concerns
the court’s application of res ipsa loquitur. In essence, it is Robert’s
position that the doctrine of res ipsa loquitur compels a finding of
strict liability against Gutzman. But as explained above, this
position is simply not supported by Utah law. Instead, our
jurisprudence is replete with decisions holding the exact opposite.
That is, several decisions show that even where a plaintiff makes
a prima facie case for res ipsa loquitur, the plaintiff is not entitled
to judgment as a matter of law because res ipsa loquitur
“establishes only an inference of negligence which the trier of fact
may accept or reject.” Ballow, 699 P.2d at 723 (emphasis added);
see also id. (explaining that the jury instructions, which “directed
the jury to find for the plaintiff if the requisite elements of res ipsa
were proved,” incorrectly stated the law (quotation simplified)).
To credit Robert’s position on this point would require us to

20220256-CA 24 2024 UT App 76
Wakefield v. Gutzman

depart from over a hundred years of caselaw. 6 This we will not
do.

¶65 Moreover, viewing the evidence in a light most favorable
to Gutzman as we must, we agree with the district court that
“ample evidence supports the jury’s verdict.” As the court
explained in its written decision denying Robert’s motion, the
“uncontroverted testimony at trial” established that the gauze
Jared aspirated was placed by Blume or Underwood, not
Gutzman, and that Jared began choking on the gauze only after
Gutzman stopped administrating anesthesia. In addition,
Gutzman testified that he “[a]bsolutely” maintained the standard

6. Indeed, Robert’s argument is based primarily on language from
Simmons v. Neuman, 855 N.Y.S.2d 189 (App. Div. 2008), a non-
binding slip opinion issued by an intermediate appellate court in
New York. See id. at 190 (stating that res ipsa loquitur may support
a directed verdict “only when the plaintiff’s circumstantial proof
is so convincing and the defendant’s response so weak that the
inference of [the] defendant’s negligence is inescapable”
(quotation simplified)). But in selectively quoting language from
this case, Robert conveniently ignores the fact that the Simmons
court declined to grant the plaintiff the relief which Robert now
seeks. Id. The court instead upheld the trial court’s decision to
deny summary judgment on the issue of liability pursuant to the
doctrine of res ipsa loquitur, reasoning that “since the doctrine
concerns circumstantial evidence which allows, but does not
require, the fact finder to infer that the defendant was negligent,
res ipsa loquitur evidence does not ordinarily or automatically entitle the
plaintiff to summary judgment or a directed verdict, even if the plaintiff’s
circumstantial evidence is unrefuted.” Id. (emphasis added)
(quotation simplified). And as illustrated, see supra ¶ 63, all the
Utah cases cited by Robert reject his position outright. See Ballow
v. Monroe, 699 P.2d 719, 723 (Utah 1985); Stevens-Salt Lake City, Inc.
v. Wong, 259 P.2d 586, 587–88 (Utah 1953); Zoccolillo v. Oregon Short
Line R.R. Co., 177 P. 201, 210 (Utah 1918).

20220256-CA 25 2024 UT App 76
Wakefield v. Gutzman

of care during the procedure, and expert testimony corroborated
Gutzman’s account of the events. Based on these facts, the jury
could have reasonably concluded that the gauze Jared aspirated
had been placed by either Blume or Underwood and that the
individual who placed the gauze (either Blume or Underwood)
was responsible for ensuring that Jared did not choke on it. As
such, the court correctly denied Robert’s motion for judgment as
a matter of law.

B. Motion for a New Trial

¶66 Robert argues the district court further erred in denying his
motion for a new trial because the evidence was insufficient to
support the jury’s verdict that Gutzman complied with the
standard of care. We disagree.

¶67 Under rule 59(a)(6) of the Utah Rules of Civil Procedure, a
district court may grant a new trial when the evidence is
insufficient to justify the verdict. Because “the district judge who
presided over a trial is in a far better position than an appellate
court to determine . . . whether the evidence was sufficient to
justify the verdict,” appellate review of such decisions is “quite
limited.” ASC Utah, Inc. v. Wolf Mountain Resorts, LC, 2013 UT 24,
¶¶ 21–22, 309 P.3d 201 (quotation simplified); accord USA Power,
LLC v. PacifiCorp, 2016 UT 20, ¶ 31, 372 P.3d 629. “A party claiming
that the evidence does not support a jury’s verdict carries a heavy
burden.” Jessop v. Hardman, 2014 UT App 28, ¶ 10, 319 P.3d 790
(quotation simplified). To satisfy this burden, the party
challenging the verdict must show that “viewing the evidence in
the light most supportive of the verdict, . . . the evidence . . . was
completely lacking or was so slight and unconvincing as to make
the verdict plainly unreasonable and unjust.” Id. ¶ 13 (quotation
simplified).

¶68 The district court denied Robert’s motion for a new trial for
the same reason that it denied his motion for judgment as a matter

20220256-CA 26 2024 UT App 76
Wakefield v. Gutzman

of law—that is, because “ample evidence supports the jury’s
verdict that [Gutzman] did not breach the standard of care.”
Viewed in the light most favorable to the verdict, we conclude that
the evidence discussed above was sufficient to support the jury’s
verdict. See supra ¶ 65. The evidence showed that the gauze that
Jared aspirated was placed by Blume or Underwood, not
Gutzman, and the jury could therefore have reasonably
concluded that Gutzman was not in control of that gauze.

¶69 Notwithstanding this evidence, Robert contends he was
entitled to a finding in his favor because Colley offered
“unrebutted expert testimony” that Gutzman’s treatment of Jared
fell below the applicable standard of care. But this position
undermines a key principle of our justice system, that “the jury is
entrusted to resolve all relevant questions of fact presented to the
court,” including “findings of negligence, apportionment of fault,
witness credibility and the weight and inferences to be drawn
from the evidence.” Moa v. Edwards, 2011 UT App 140, ¶ 6, 256
P.3d 242 (quotation simplified), cert. denied, 262 P.3d 1187 (Utah
2011). To that end, juries are given an “extraordinarily broad”
latitude to weigh the credibility of witnesses, and that “latitude is
even broader” when assessing expert testimony. Lyon v. Bryan,
2011 UT App 256, ¶ 10, 262 P.3d 1199. And “a jury is free to
disregard expert testimony in whole or in part.” State v. Carter, 707
P.2d 656, 663 (Utah 1985). Even where an “expert’s opinion is
unchallenged by the opinion of an opposing expert,” the jury “is
not required to believe [that] expert.” Lyon, 2011 UT App 256,
¶ 10; see also DeBry v. Cascade Enters., 879 P.2d 1353, 1360 (Utah
1994) (“[T]he jury was not bound under the law to accept the
plaintiffs’ evidence . . . or even to view that evidence in the light
most favorable to the plaintiffs’ case.”). Thus, even if Colley’s
testimony was unrebutted, the jury was not required to simply
accept it wholesale. “Rather, it was the jury’s prerogative to probe,
test, weigh, and evaluate any evidence presented, including the
testimony of expert witnesses.” Lyon, 2011 UT App 256, ¶ 11.

20220256-CA 27 2024 UT App 76
Wakefield v. Gutzman

¶70 The district court did not abuse its discretion by denying
Robert’s motion for a new trial. The jury’s verdict was supported
by substantial evidence. And even though Colley’s testimony was
unrebutted, Robert is not entitled to a finding in his favor on this
basis because the jury was not obligated to accept Colley’s
testimony as true.

CONCLUSION

¶71 The district court did not abuse its discretion when it
excluded the DOPL Petition from evidence at trial or when it
overruled objections to Keller’s expert testimony. And the district
court’s decision to deny Robert’s post-trial motion was proper.

¶72 Affirmed.

20220256-CA 28 2024 UT App 76