Swanigan v. Avenues Healthcare

2023 UT App 2

THE UTAH COURT OF APPEALS

VALERIE SWANIGAN, CRYSTAL SWANIGAN, COREY SWANIGAN, CARL
SWANIGAN JR., CANDACE SWANIGAN, AND COURTLAND SWANIGAN,
Appellants,
v.
AVENUES HEALTHCARE INC. AND ENSIGN GROUP INC.,
Appellees.

Opinion
No. 20210385-CA
Filed January 6, 2023

Third District Court, West Jordan Department
The Honorable Matthew Bates
No. 160904522

Leonard E. McGee and Peter R. Mifflin,
Attorneys for Appellants
Stephen T. Hester and Bradley M. Strassberg,
Attorneys for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

MORTENSEN, Judge:

¶1 Carl Swanigan developed various injuries to his feet while
residing in a nursing home. It was determined that he would
require amputation to address the condition, but he died of a heart
attack before the surgery could be performed. Swanigan’s family
brought various medical malpractice claims against the nursing
home, alleging that the nursing home’s breach of duty led to
infection that caused clotting, which in turn caused the heart
attack. The district court determined that the expert testimony
Swanigan’s family sought to introduce in this respect was
unreliable and, on that basis, excluded that testimony from trial.
Swanigan v. Avenues Healthcare

The court then determined that, without the excluded testimony,
Swanigan’s estate could not prove its claim, and therefore it
granted summary judgment in favor of the nursing home.
Swanigan’s estate and heirs now appeal, and we affirm.

BACKGROUND

¶2 Swanigan resided in a long-term healthcare facility
operated by Avenues Healthcare Inc. (Avenues) from 2009
through 2013. In early 2013, Swanigan “developed cuts or other
injuries . . . to both of his feet.” When care providers at Avenues
approached Swanigan to treat his wounds, “on numerous
occasions, [he] would not allow Avenues to provide him medical
care, including refusing to allow Avenues staff to change or
inspect the bandage dressing on his feet.” Around October 2013,
Swanigan developed infections in both feet, which required his
transfer to the University of Utah Medical Center for treatment.
Physicians at the hospital determined that both of Swanigan’s feet
would have to be amputated. But just a few days later, before the
surgery was performed, Swanigan died from a heart attack.

¶3 Before his death, Swanigan suffered from coronary disease
and hypertension, smoked heavily, was obese, and led a
sedentary lifestyle. An “[a]utopsy showed an occlusive
thrombus[1] in the proximal left anterior descending coronary
artery,” which the pathologist believed was “likely the acute
cause of death.”

¶4 After Swanigan’s death, Valerie Swanigan, individually
and on behalf of Swanigan’s estate, and others, individually and

1. A thrombus is a “blood clot that adheres to the wall of a blood
vessel or organ.” Thrombus, Taber’s Cyclopedic Medical
Dictionary 2316 (21st ed. 2009). A thrombus is said to be occluding
when it “completely closes the vessel.” Id.

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as heirs (collectively, the Estate), filed several wrongful death and
survival action claims against Avenues and Ensign Group, the
parent company of Avenues, based on negligence. The Estate
designated a medical doctor (Expert) as an expert witness.
Expert’s testimony largely consisted of the assertion that
Swanigan’s infection resulted in inflammation, which in turn
resulted in coronary problems. However, Expert acknowledged
his theory was “not something that’s generally promulgated by
the medical community.”

¶5 As relevant to this appeal, Avenues filed two motions: a
motion to strike the testimony of Expert and a motion to dismiss
all claims for medical malpractice due to the absence of admissible
causation evidence. The district court granted each of these
motions. 2

¶6 In granting Avenues’ motion to strike Expert’s testimony,
the court concluded,

[T]he testimony of [Expert] fails to meet the
requirements for admissible testimony under rules
702(b) or 702(c) of the Utah Rules of Evidence. Per
Utah law, this [c]ourt must act as a “gatekeepe[r] to
screen out unreliable expert testimony.” State v.
Lopez, 2018 UT 5, ¶ 20, 417 P.3d 116. Under rule 702,
expert testimony can be admitted if it is “generally
accepted by the relevant expert community,” Utah
R. Evid. 702(c), or if “the principles or methods
underlying . . . the testimony (1) are reliable, (2) are
based on sufficient facts or data, and (3) have been
reliably applied to the facts.” Lopez, 2018 UT 5, ¶ 29
(quoting Utah R. Evid. 702(b)).

2. The court also granted Ensign Group’s motion for dismissal of
all claims against it.

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[The Estate] cannot make the requisite threshold
showing under Utah R. Evid. 702(b) or (c). There is
no dispute that [Expert’s] opinion is not based on
general acceptance in the relevant expert
community. Moreover, [the Estate has] failed to
provide any facts to show this testimony is
otherwise reliable. [Expert’s] theory is largely based
on one article published in 2004 in the New England
Journal of Medicine . . . that simply shows a
correlation between inflammation and heart-related
events. [Expert’s] theory is otherwise based on his
own untested and unproven hypothesis. This is
insufficient to allow such testimony to go to a jury
and requires this [c]ourt to grant Avenues’ Motion
to Strike.

¶7 In dismissing the Estate’s medical malpractice claims, the
court stated that because the testimony of Expert was stricken, the
Estate had “no expert testimony to support its claims for medical
malpractice or wrongful death.” See Butterfield v. Okubo, 831 P.2d
97, 102 (Utah 1992) (“To recover for medical malpractice, the
plaintiff must produce expert testimony that the medical
professional’s negligence proximately caused the plaintiff
injury.”). In a later ruling, the court dismissed the Estate’s
remaining survival claims because the Estate had “failed to
provide any evidence of causation.”

¶8 The Estate challenges these rulings on Avenues’ motions
for summary judgment.

ISSUES AND STANDARDS OF REVIEW

¶9 The first issue is whether the district court erred in granting
Avenues’ motion to strike the testimony of Expert. “We review
the district court’s decision to admit expert testimony under an

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abuse-of-discretion standard, and we will not reverse a decision
to admit or exclude expert testimony unless the decision exceeds
the limits of reasonability.” State v. Wall, 2020 UT App 36, ¶ 50,
460 P.3d 1058 (cleaned up).

¶10 The second issue is whether the district court erred in
granting summary judgment in favor of Avenues with regard to
the Estate’s claims for medical malpractice and wrongful death.
“We review a trial court’s legal conclusions and ultimate grant or
denial of summary judgment for correctness, viewing the facts
and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.” Heartwood Home Health
& Hospice LLC v. Huber, 2020 UT App 13, ¶ 11, 459 P.3d 1060
(cleaned up). 3

3. At trial, the Estate asserted that Swanigan was incompetent to
make his own medical decisions, including his decision to decline
care for his injured feet. This assertion was largely based on a
determination—made two years before Swanigan’s residency in
Avenues—that he had been incompetent to stand trial in a
criminal proceeding. In opposition to this purported
incompetency, Avenues filed a motion for partial summary
judgment. The district court granted the motion, concluding that
the Estate had failed “to provide any evidence that could create
an issue of fact as to whether the presumption of competency has
been overcome.” The court determined that “[n]o evidence was
presented that could prove incompetence to make medical
decisions at any relevant time.” Because there was “no evidence
presented to overcome the legal presumption of competency,” the
court ruled that Swanigan was competent to make his own
medical decisions.
On appeal, the Estate alleges that the district court erred in
granting Avenues’ motion. Given our determination that the
Estate has failed to produce evidence that Avenues’ alleged
(continued…)

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ANALYSIS

I. Exclusion of Expert Testimony

¶11 The Estate claims that the district court abused its
discretion in excluding Expert’s testimony when it “required
[Expert’s] opinion to be conclusively scientifically proven instead
of making a threshold showing of reliability or general
acceptance.” But as we explain—and contrary to the Estate’s

breach of duty to Swanigan resulted in his injuries, it is
unnecessary for us to address this issue at length. But we observe
that Utah law makes clear that “[a]n adult is presumed to have . . .
health care decision making capacity,” see Utah Code Ann. § 75-
2a-104(1)(a) (LexisNexis Supp. 2022), and this presumption
remains in place until there is a “judicial determination after proof
by clear and convincing evidence that an adult’s ability to”
“receive and evaluate information”; “make and communicate
decisions”; or “provide for necessities such as food, shelter,
clothing, health care, or safety” “is impaired to the extent that the
individual lacks the ability . . . to meet the essential requirements
for financial protection or physical health, safety, or self-care,” see
id. § 75-1-201(22). Moreover, the presumption of competence
requires healthcare providers to abide by a patient’s directives.
See Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278 (1990)
(“[A] competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment . . . .”); see also
Utah Admin. Code R432-150-12(3)(c) (“The facility shall ensure
that each resident admitted to the facility . . . be informed . . . of
. . . the right to refuse treatment . . . .”).
Here, no order from a court—or even the documentation
of Swanigan’s alleged incompetency from the criminal
proceeding—was presented to Avenues. And in the absence of
any indication of incompetence, Avenues was obligated to respect
Swanigan’s “constitutionally protected liberty interest in refusing
unwanted medical treatment.” See Cruzan, 497 U.S. at 278.

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assertion on appeal—the district court did not exclude Expert’s
testimony on the grounds that it lacked “scientific certainty” but
because Expert’s “opinion [was] not based on general acceptance
in the relevant expert community” and because the Estate “failed
to provide any facts to show this testimony is otherwise reliable.”

¶12 Rule 702 of the Utah Rules of Evidence permits “a witness
who is qualified as an expert by knowledge, skill, experience,
training, or education” to “testify in the form of an opinion or
otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue.” Utah R. Evid. 702(a). However,
such expert testimony is admissible “only if there is a threshold
showing that the principles or methods that are underlying in the
testimony (1) are reliable, (2) are based upon sufficient facts or
data, and (3) have been reliably applied to the facts.” Id. R. 702(b).
This “threshold showing” is considered to have been made “if the
underlying principles or methods, including the sufficiency of
facts or data and the manner of their application to the facts of the
case, are generally accepted by the relevant expert community.”
Id. R. 702(c).

¶13 District court judges act as “gatekeepers to screen out
unreliable expert testimony,” a role that “requires our judges to
view proposed expert testimony with rational skepticism.” See
State v. Lopez, 2018 UT 5, ¶ 20, 417 P.3d 116 (cleaned up). Thus,
“before admitting [expert] testimony, the judge must determine
that the proponent has made a threshold showing of reliability,”
either by demonstrating that the “principles underlying the
expert’s testimony are reliable, based upon sufficient facts or data,
and have been reliably applied to the facts” of the case or by
showing that the underlying principles or methods are “generally
accepted by the relevant expert community.” See Taylor v.
University of Utah, 2019 UT App 14, ¶¶ 13–14, 438 P.3d 975
(cleaned up), aff’d, 2020 UT 21, 466 P.3d 124.

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¶14 The gist of Expert’s testimony was that the infection in
Swanigan’s feet caused the heart attack that led to his death:

Yeah. I believe that his infection—and he had
quite a severe infection of both legs—made him
more likely to develop clots, and he developed clots
both in his leg as a function of a deep vein
thrombosis, as well as in his coronary arteries,
which I believe was the proximal cause of his death.
So I believe that the infections that he had
contributed to—ultimately to his cause of death.

....

So I believe that he would not have suffered
a myocardial infarction on that specific day had it
not been that he was also suffering from a serious
infection at the same time. I believe that the infection
triggered the heart attack.

¶15 Expert explained that his opinions were based on the
principle “that infection causes inflammation, and inflammation
causes heart disease.” Expert noted that while “there’s certainly a
fairly large [amount of] literature” showing that “inflammation is
directly associated with atherosclerotic[4] events,” “there’s less
literature on whether or not infection itself is related to thrombotic
events.” Despite the dearth of literature, Expert asserted,

4. “Atherosclerosis is the buildup of fats, cholesterol and other
substances in and on the artery walls. This buildup is called
plaque. The plaque can cause arteries to narrow, blocking blood
flow. The plaque can also burst, leading to a blood clot.”
Arteriosclerosis/atherosclerosis, Mayo Clinic, https://www.mayocli
nic.org/diseases-conditions/arteriosclerosis-atherosclerosis/symp
toms-causes/syc-20350569 [https://perma.cc/9JM5-BZMJ].

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But my own personal belief, just simply, is that
everybody, I think, would agree that infection
causes inflammation. We know that. I mean, that’s
one of the causes of inflammation in general, is
having an active infection. And if you have
inflammation, now, again, there is going to be at
least some relationship with a coronary disease and
thrombosis.

Though he held the belief that infection had a causal relationship
with coronary disease, he nevertheless conceded that the notion
that “having an infection might increase [a person’s] risk of a heart
attack” is “not something that’s generally promulgated by the
medical community.” But to support his theory, Expert pointed to
a 2004 article in the New England Journal of Medicine, which
concluded that “acute lower respiratory tract infections and
urinary tract infections are associated with a transient increase in
the risk of a vascular event.” See Liam Smeeth et al., Risk of
Myocardial Infarction and Stroke After Acute Infection or Vaccination,
351 New Eng. J. Med. 2611, 2615–16 (2004).

¶16 Here, the district court determined that Expert’s opinion
failed to reach the reliability threshold of either being based on
sufficient facts or data or being generally accepted by the relevant
expert community. See supra ¶ 6. We find no abuse of discretion
in this determination.

¶17 First, by his own admission, Expert’s theory about the
causal relationship between infection and cardiac events was
untested. When questioned whether the journal article he had
cited in support of his theory “establish[ed] a causal relationship
between infection and the development of coronary thrombosis,”
Expert replied that studies like the one in the article “usually look
for associations and not exactly cause and effect.” Expert clarified
that to establish causation, “You need randomized trials.”

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¶18 To be clear, Expert’s theory that infection causes
inflammation, which causes blood clots, which can lead to
thrombotic events, was based on logical reasoning and made
intuitive sense (at least to him). But this was not enough to make
it admissible. For admissibility, there must be sufficient facts and
data to back up the conclusion. “[L]ogical deduction may be a
reliable method when supported by sufficient facts or data,” but
it is not enough on its own. See Taylor, 2019 UT App 14, ¶ 16. In
other words, even though Expert’s reasoning may be logically
sound, without “sufficient facts or data” to support his premises,
the court did not abuse its discretion in determining that his
opinion was inadmissible. See id.

¶19 Second, Expert’s opinion was not based on general
acceptance in the relevant expert community. Expert conceded
that the theory that “having an infection might increase [a
person’s] risk of a heart attack” is “not something that’s generally
promulgated by the medical community.” Even the article cited
by Expert was limited to a consideration of respiratory and
urinary tract infections. See Liam Smeeth et al., Risk of Myocardial
Infarction and Stroke After Acute Infection or Vaccination, 351 New
Eng. J. Med. 2611, 2612 (2004).

¶20 Because Expert’s opinion was based on a theory that had
not been tested and was not generally accepted by the medical
community and because it otherwise lacked reliability, we
conclude that the district court did not abuse its discretion in
striking his opinion under rule 702.

II. Dismissal of Wrongful Death and Medical Malpractice Claims

¶21 Even without Expert’s testimony, the Estate argues that it
“had expert testimony from other designated experts to provide
the jury with foundation to conclude that it was ‘poor care’ that
caused . . . Swanigan’s injury.” This additional expert testimony,
the Estate asserts, supported the causation element of its medical

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malpractice claim. Thus, the Estate alleges that the district court
erred in granting Avenues’ motion for summary judgment with
regard to the Estate’s claims for medical malpractice and
wrongful death.

¶22 The Estate argues that the court erred in discounting the
testimony of a nursing home administrator and a physician who
had attended Swanigan at the University of Utah Medical Center.
In advancing this position, the Estate largely ignores the reason
that the court discounted the testimony of these two witnesses
with regard to the Estate’s medical malpractice claims: neither
testified as to causation. And not having expert causation
testimony of Swanigan’s injuries—from Expert or from the other
two experts—is fatal to the Estate’s claims.

¶23 The court noted that the nursing home administrator, who
was designated by the Estate as an expert witness, testified to the
standard of care for nursing homes but his “deposition testimony
[fell] far short of establishing actual or proximate cause.” This
witness opined that even if Avenues had notified Swanigan’s
doctor that he was refusing care, there was no way of knowing if
it would have made a difference for Swanigan’s health: “I do not
know what [Swanigan’s doctor] would have done. . . . But she
could have made a decision whether that would be
hospitalization, one-on-one care, I.V. antibiotics. We don’t know.”
As the court concluded, this “testimony does not establish that but
for the breach the injury would not have occurred.” In other
words, this expert’s testimony did not establish that any of
Swanigan’s injuries—either his foot injuries or his heart attack
and death—would not have occurred if not for the allegedly
inadequate care provided by Avenues.

¶24 The court found that the testimony of the university
physician—who incidentally was not designated as a causation
expert by the Estate—was “similarly unhelpful.” She merely
stated that the injuries to Swanigan’s feet were long-standing and

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had developed due to comorbidities, but “[s]he made no effort to
connect any breach of [Avenues’] duty of care to [Swanigan’s]
injuries.”

¶25 Without expert testimony on causation, the Estate’s
wrongful death and medical malpractice claims necessarily failed.
See Kent v. Pioneer Valley Hosp., 930 P.2d 904, 906 (Utah Ct. App.
1997) (“Because of the complex issues involved in a determination
of proximate cause in a medical malpractice case, the plaintiff
must provide expert testimony establishing that the health care
provider’s negligence proximately caused plaintiff’s injury.”).
Here, the Estate has presented no admissible evidence that any
particular injury to Swanigan was attributable to a breach of duty
on the part of Avenues. Given this lack of evidence as to causation,
we find no error in the district court’s grant of summary judgment
in favor of Avenues as to the Estate’s medical malpractice and
wrongful death claims. See Ruiz v. Killebrew, 2020 UT 6, ¶ 11, 459
P.3d 1005 (“To ensure that the jury is not left to speculate,
plaintiffs may not provide just any evidence of proximate cause:
They must generally produce expert testimony that the medical
professional’s negligence proximately caused the plaintiff injury.”
(cleaned up)).

CONCLUSION

¶26 The district court did not abuse its discretion in striking
Expert’s opinion. Because the Estate has failed to produce
acceptable expert testimony of medical causation, its challenges
to the district court’s grant of the summary judgment necessarily
fail. Affirmed.

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