author: APPLEBY, Judge:

text:
    Michele FELIX, Appellee, v. NOVELIS CORPORATION, Appellant.
    No. 20180216-CA
    Court of Appeals of Utah.
    Filed June 20, 2019
    Alexander Dushku and Justin W. Starr, Salt Lake City, Attorneys for Appellant
    Gilbert L. Purcell, James P. Nevin, Daniel J. Morse, Kimberly J. Chu, and Gary Brayton, Attorneys for Appellee
    Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.
    Opinion
   APPLEBY, Judge:

¶1 This lawsuit stems from Raymond Felix's alleged contact with asbestos and resulting death from mesothelioma in 2014. Michele Felix, acting as the personal representative on behalf of Felix's legal heirs (Estate), filed a lawsuit in 2015 against multiple defendants who allegedly exposed Felix to asbestos. The Estate added Novelis Corporation to the lawsuit in 2017 and Novelis moved to dismiss for lack of personal jurisdiction. The district court denied the motion, concluding that Novelis had sufficient minimum contacts with Utah to support specific personal jurisdiction. We reverse.

BACKGROUND

¶2 Felix died in 2014 from mesothelioma. In 2015 the Estate sued multiple defendants who allegedly exposed him to asbestos. The Estate filed an amended complaint in 2017, adding Novelis as a defendant.

¶3 Novelis's predecessor in interest, Metal Goods, allegedly exposed Felix to asbestos in the 1950s through its artificial snow product called "Snow Drift." Metal Goods manufactured Snow Drift until 1954. During its operation, Metal Goods manufactured and packaged Snow Drift in Missouri and sold it to two national companies: Woolworth and Kresge (later re-named Kmart).

¶4 Felix's sibling (Sibling) stated in a declaration that the Felix family used "multiple boxes of 'Snow Drift' " to decorate their Christmas trees "between the years of 1950 and 1955." Sibling "believe[d]" they purchased Snow Drift from a Woolworth department store in Utah. The boxes were labeled "Snow Drift" and contained "Christmas season themed illustrations depicting snow, and text touting the product's properties and uses, including that it was asbestos." Sibling recalled seeing "the name of the manufacturer, 'Metal Goods Corporation, St. Louis' " on the side of the box.

¶5 Novelis moved to dismiss the complaint for lack of personal jurisdiction. Novelis asserted it does not own real property or business offices in Utah, does not have a workforce or manufacturing operations here, or advertise its products here. Novelis asserted it possessed no information "that Metal Goods (or Alcan) sold Snow Drift in Utah, or had offices, employees, inventory, real estate, or facilities in Utah." Novelis similarly asserted that it had no information that Metal Goods sold or advertised any products in Utah. It argued that neither "Novelis, nor its predecessors, have any contacts with the State of Utah," and therefore the Estate's claims against it should be dismissed for lack of personal jurisdiction.

¶6 The district court denied the motion. It ruled that the Estate failed to establish general jurisdiction but concluded that the Estate submitted sufficient evidence to support specific jurisdiction. The court found that the evidence "support[ed] the conclusion that the Snow Drift product was sold for several years at Woolworth stores in Utah." Further, "Snow Drift was sold under the Metal Goods name, to Woolworth stores in Utah, and Utah consumers could reasonably expect Metal Goods and its [successor] in interest [Novelis] to stand behind its product and be answerable for any defects."

¶7 Novelis filed an interlocutory appeal challenging the court's denial of its motion to dismiss.

ISSUE AND STANDARD OF REVIEW

¶8 The issue on appeal is whether the district court erred in denying Novelis's motion to dismiss for lack of personal jurisdiction. "An appeal from a pretrial jurisdictional decision made only on documentary evidence presents legal questions which we review for correctness." Mower v. Nibley , 2016 UT App 174, ¶ 12, 382 P.3d 614 (quotation simplified). "If the trial court proceeds on documentary evidence alone to determine whether personal jurisdiction is proper, the plaintiff is only required to make a prima facie showing of personal jurisdiction." Id. (quotation simplified).

ANALYSIS

¶9 Novelis argues the district court erred in denying its motion to dismiss for lack of specific personal jurisdiction. It asserts the court lacks specific jurisdiction over it because the Estate demonstrated that Metal Goods merely placed its "product into the stream of commerce" and that product "happened to end up in Utah."

¶10 "Specific personal jurisdiction gives a court power over a defendant only with respect to claims arising out of the particular activities of the defendant in the forum state." Venuti v. Continental Motors Inc. , 2018 UT App 4, ¶ 10, 414 P.3d 943 (quotation simplified). Specific jurisdiction must satisfy Utah's long-arm statute, Utah Code Ann. § 78B-3-201(3) (LexisNexis 2018), as well as the Due Process Clause of the Fourteenth Amendment. Venuti , 2018 UT App 4, ¶ 10, 414 P.3d 943. Because Utah's long-arm statute extends jurisdiction to the fullest extent allowed by the Due Process Clause, we move directly to that analysis. Parry v. Ernst Home Center Corp. , 779 P.2d 659, 661 (Utah 1989).

¶11 The Due Process Clause requires that before a court can exercise specific personal jurisdiction over a nonresident defendant, the defendant have "minimum contacts" with the forum state "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quotation simplified). "When a defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws, courts will generally conclude that due process is satisfied." Venuti , 2018 UT App 4, ¶ 12, 414 P.3d 943 (quotation simplified).

¶12 The primary dispute in this appeal is whether the Estate has satisfied the "stream of commerce" test. "The 'stream of commerce' theory of specific jurisdiction developed in product-liability cases to address the situation where the seller does not come in direct contact with the forum state but does so through intermediaries such as retailers or distributors." Id. ¶ 22 (quotation simplified). To satisfy the stream of commerce test, a plaintiff must show that the sale of the product " 'is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States.' " Id. (quoting World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ). "The defendant's transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State." J. McIntyre Mach., Ltd. v. Nicastro , 564 U.S. 873, 882, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011).

¶13 In this case, the Estate has-at most-shown that Metal Goods sold Snow Drift to third-party distributors and the product ended up in Utah. The district court noted during the hearing on the motion to dismiss that "the only contact we have is the fact that Snow Drift was purchased from a Woolworth store here in Utah and that's about it." The court erroneously concluded that this is enough to support specific jurisdiction. "[M]erely placing a product into the stream of commerce knowing that it could be swept into the forum state does not subject a manufacturer to personal jurisdiction." Venuti , 2018 UT App 4, ¶ 27, 414 P.3d 943. The stream of commerce theory requires "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Id. (emphasis added) (quotation simplified).

¶14 Methods of showing the additional act necessary to establish specific jurisdiction include " 'designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as a sales agent in the forum State.' " Parry , 779 P.2d at 663 (emphasis omitted) (quoting Asahi v. Metal Industry Co. v. California , 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) ).

¶15 The Estate argues it has shown the additional act necessary to establish specific jurisdiction through "advertising in the forum State." Id. (quotation simplified). It contends that Metal Goods advertised its product in Utah by placing its company name on boxes of Snow Drift. The packaging also "contained promotional text, on-product advertising, touting Snow Drift's desirable features and uses."

¶16 Simply placing a company label on a package is an insufficient act to subject a manufacturer to specific jurisdiction. The additional act necessary to establish specific jurisdiction must be targeted at the forum in some way. In Parry , our supreme court was confronted with this same issue. 779 P.2d at 660. The plaintiff in Parry was injured in Utah while splitting logs with a maul manufactured by one of the defendants. Id. The defendant was a Japanese manufacturer that had no direct contact with Utah. Id. It knew its "products would be distributed for retail sales throughout the western United States and possibly in any state in the United States." Id. But there "was no evidence proffered that [it] directly sold or advertised any of [its] products in Utah." Id. The supreme court concluded that awareness of potential sales in Utah is insufficient to establish specific jurisdiction. Id. at 667. The court rejected the argument that selling a product in Utah constitutes an advertisement sufficient to support specific jurisdiction. Id. at 666 ; see also Fenn v. Mleads Enters., Inc. , 2006 UT 8, ¶ 22, 137 P.3d 706 (recognizing that an advertising campaign may establish sufficient minimum contacts when the contact includes direct communications between the parties).

¶17 Here, the labeling on the package does not demonstrate that Metal Goods made any deliberate engagement in "significant activities within the state." Fenn , 2006 UT 8, ¶ 13, 137 P.3d 706. While the labeling was specific to the Christmas season, it was not specific to Utah. The Estate argues that putting the name "Metal Goods" on the packaging showed an intent to advertise and stand behind its product. This misses the point. Affixing a company name to the packaging is not aimed at Utah specifically and therefore does not exhibit purposeful availment.

¶18 We conclude the Estate failed to demonstrate that Novelis has sufficient minimum contacts to establish specific jurisdiction in Utah. Haling Novelis into a Utah court under these facts offends "traditional notions of fair play and substantial justice." International Shoe , 326 U.S. at 316, 66 S.Ct. 154 (quotation simplified).

CONCLUSION

¶19 The district court erred in concluding that the Estate made a prima facie showing that the court had specific jurisdiction over Novelis. Because Novelis does not have sufficient minimum contacts with Utah, we reverse.

      Alcan Aluminum Corporation subsequently purchased Metal Goods and Novelis was created through a reorganization of Alcan. Novelis does not dispute that it is the successor in interest to Metal Goods. Novelis is a Texas corporation with its principal place of business in the state of Georgia.

      The Estate does not dispute general jurisdiction on appeal.


source: Caselaw Access Project

author: MORTENSEN, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Randy Lynn HARVEY, Appellant.
    No. 20170733-CA
    Court of Appeals of Utah.
    Filed June 20, 2019
    Emily Adams, Attorney for Appellant
    Sean D. Reyes, Salt Lake City, and Lindsey L. Wheeler, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.
    Opinion
   MORTENSEN, Judge:

¶1 A police officer (Officer) testified at trial, based on information he received in his police training, about the human body's average rate of elimination of alcohol-the "burn-off rate." Randy Lynn Harvey, who was standing trial for driving under the influence (DUI), objected for lack of foundation. The district court overruled the objection, and a jury found Harvey guilty. Harvey subsequently filed a motion for a new trial, asserting that Officer gave expert testimony as a lay witness. The district court denied the motion. Harvey appeals, and we reverse.

BACKGROUND

The Arrest

¶2 Around one o'clock in the morning in late November 2015, Officer, a fourteen-year police veteran with advanced roadside impairment training and about 200 DUI arrests under his belt, spotted a pickup truck traveling without its taillights illuminated and initiated a traffic stop by turning on his overhead lights. Harvey, who was driving the truck, continued for about one block and stopped at a red light as Officer, with his patrol car's lights still flashing, followed him. Harvey proceeded through the light after it had turned green, travelled another half block, and then pulled over, bringing the truck to a stop. Officer noted that the street was "pretty dead" and that there was "quite a bit of parking [at] that time of night on the side of the road."

¶3 When Officer approached the truck, Harvey rolled down the window about two inches, but he did not look Officer in the eye. Officer observed that Harvey's left eye "appeared to be glassy and bloodshot." Officer also detected "a strong odor of an alcoholic beverage emanating from the vehicle" and saw a "passenger attempting to hide a ... half-consumed [bottle of] vodka ... in a bag behind her seat." When asked, Harvey denied that he had been drinking.

¶4 Officer requested that Harvey perform several field sobriety tests (FST). Officer recalled that Harvey appeared to have good balance when he exited his vehicle to take the FSTs. But with regard to his ability to perform the FSTs, Harvey advised Officer that (1) he had a titanium ankle replacement because he had been shot with a .40 caliber bullet in one leg and (2) he had been bitten in the calf on the other leg by a shark when he was a child.

¶5 Officer had Harvey perform three standardized FSTs. The first was the horizontal gaze nystagmus test (HGN test). In administering the HGN test, Officer noticed six out of a possible six indicators that Harvey had alcohol in his system. Officer next administered the vertical gaze nystagmus test (VGN test), but Harvey's performance during this test did not show any indicators of the presence of alcohol. At trial, Officer testified that the VGN test detects when someone has a high level of alcohol in his blood. The third FST was the walk-and-turn test, which Harvey had indicated he could probably complete despite his injuries, but he advised Officer that "numbness" in his calf would "prevent him from feeling when his feet touched heel to toe." Officer recalled telling Harvey that he "would take that into consideration." Harvey's performance during this test showed six out of eight possible indicators of the presence of alcohol in his system. Because Harvey's prior leg injuries prevented him from performing the last standardized FST-the one-leg-stand test-Officer opted to have Harvey recite the letters of the alphabet and count backward. Harvey performed both tests without error.

¶6 Based on Harvey's performance on the walk-and-turn and HGN tests and the odor of the alcoholic beverage, Officer arrested him for DUI. After transporting Harvey to the police station, Officer requested that Harvey take a breath test to determine his blood alcohol content (BAC). Even after being warned that refusal to take the test may result in the loss of his driver license, Harvey refused to submit to it. Officer then obtained a search warrant to collect Harvey's blood for testing, and a sample was drawn at about three o'clock in the morning, two hours after Harvey was pulled over. Harvey's blood was subjected to two identical tests-a screening test and a confirmation test-with each test producing two results. The screening test measured Harvey's BAC at .075 and .076. The confirmation test yielded two BAC results of .081.

¶7 The State charged Harvey with DUI. Under Utah law, Harvey could be found guilty of DUI if (a) a subsequent chemical test showed that he had a BAC of .08 or greater at the time of the test, (b) he was under the influence of alcohol to a degree that rendered him incapable of safely operating a vehicle, or (c) he had a BAC of .08 or greater while operating a vehicle. Utah Code Ann. § 41-6a-502(1) (LexisNexis 2014). In Harvey's case, the DUI was charged as a third-degree felony based on two prior DUI convictions within the last ten years. See id. § 41-6a-503(2)(b).

The Trial

¶8 The State's forensic scientist testified that he could not "rule out the possibility" that Harvey's BAC was below .08 at the time it was tested. He stated that the tests he ran indicated that Harvey's BAC would have been "around [.07 or .08] and probably within those two numbers."

¶9 In addition to recounting the details of the arrest, Officer testified that "the average burn-off rate [for alcohol] is approximately .015" per hour. Harvey's counsel immediately objected to this testimony for lack of foundation. The court asked the State to "lay some foundation with respect to how [Officer] would know" about alcohol burn-off rates. Officer testified that he learned about how the body burns off alcohol in his training at the police academy. Harvey's counsel again objected, but the court overruled the objection, stating, "[I]f this is something he learned in [the police academy], he can testify to it. It goes to the weight." On cross-examination, Officer stated that he could not calculate Harvey's precise alcohol burn-off rate and could provide only the average because rates depend on weight, gender, and what someone has eaten.

¶10 At the close of the State's case, Harvey moved for a directed verdict because the State's forensic scientist testified that Harvey's BAC may have been below .08 and because Officer did not notice a pattern of unsafe driving. Based on the forensic scientist's testimony, the district court determined that there was "a real probability" that Harvey's BAC was under .08. Thus, the court granted the motion in part, finding that a reasonable jury could not find Harvey's BAC was .08 or higher at the time of the blood test. But the district court allowed the case to proceed to the jury on the other two prongs of the statute, namely (1) whether Harvey was under the influence of alcohol to a degree that rendered him incapable of safely operating a vehicle or (2) whether Harvey had a BAC of .08 or greater while operating a vehicle. See Utah Code Ann. § 41-6a-502(1)(b)-(c). The jury found Harvey guilty.

¶11 Subsequently, Harvey moved for a new trial, arguing that Officer's burn-off-rate testimony was improper expert testimony from a lay witness. The district court denied the motion, explaining that Officer had "sufficient training and expertise to relay the information" that he had learned in the police academy "about the average blood alcohol dissipation rate." The district court imposed a suspended prison sentence and placed Harvey on supervised probation. Harvey appeals.

ISSUE AND STANDARD OF REVIEW

¶12 The issue presented on appeal is whether the district court erred in admitting Officer's burn-off-rate testimony. "A decision to admit or exclude expert testimony is left to the discretion of the [district] court, and that decision will not be reversed unless it constitutes an abuse of discretion." Belnap v. Graham , 2016 UT App 14, ¶ 8, 366 P.3d 852 (cleaned up). And "[e]ven if we determine the testimony was erroneously admitted, the defendant must show that the error was prejudicial." State v. Peraza , 2018 UT App 68, ¶ 23, 427 P.3d 276, cert. granted , 429 P.3d 460 (Utah 2018).

ANALYSIS

¶13 The State makes no effort to defend the district court's ruling on the admissibility of Officer's burn-off-rate testimony. Rather, the State's theory is that Officer's burn-off-rate testimony-even if erroneously admitted-was harmless because there was overwhelming evidence to convict Harvey under the alternative impairment theory of DUI, namely, that Harvey was under the influence of alcohol to a degree to render him incapable of safely operating a vehicle. See Utah Code Ann. § 41-6a-502(1)(b) (LexisNexis 2014). In other words, for the burn-off-rate testimony to be harmless, we must conclude that the other evidence presented at trial demonstrating that Harvey was incapable of safely operating a vehicle was so strong that there is no reasonable likelihood that the admission of the burn-off-rate testimony affected the jury's verdict. Thus, the State's argument is a delicate house of cards built on the foundation of showing there was ample evidence of Harvey's incapacity.

¶14 We first consider the admissibility of Officer's burn-off-rate testimony. Then, having determined that his testimony was improperly admitted, we consider whether its admission was harmless based on the strength of the evidence showing that Harvey was under the influence of alcohol to a degree rendering him incapable of safely operating a vehicle.

I. Erroneous Admission of Officer's Burn-Off-Rate Testimony

¶15 We agree with Harvey that Officer was not a qualified expert on the subject of alcohol burn-off rates and therefore should not have been allowed to testify about this subject. The Utah Rules of Evidence state that "a witness who is qualified as an expert by knowledge, skill, experience, training, or education may 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). The district court reasoned that Officer could testify as an expert about the burn-off rate of alcohol because the metabolism of alcohol was "something he learned in [the police academy], [so] he can testify to it. It goes to the weight." Thus, the district court determined that the alcohol burn-off rate constituted special knowledge that must be provided by an expert.

¶16 Testifying about alcohol burn-off rates is generally viewed by courts as the province of experts. But learning about something in cursory fashion during training does not make a person an expert. Indeed, in Negrini v. State , where an officer attempted to testify about the alcohol burn-off rate based on information he "heard during one lecture at the police academy," a Texas court held that the officer was not qualified as an expert on the subject. 853 S.W.2d 128, 133 (Tex. Ct. App. 1993). And when burn-off-rate testimony has been admitted in Utah, such testimony has been offered by an expert with a scientific background. See State v. Folsom , 2019 UT App 17, ¶ 25, 438 P.3d 992 (noting the admission of burn-off-rate testimony from a forensic toxicologist); State v. Bradley , 578 P.2d 1267, 1268-69 (Utah 1978) (admitting burn-off-rate testimony from a medical examiner).

¶17 We acknowledge that law enforcement officers may offer expert testimony on a range of subjects provided that sufficient foundation is laid for the specific testimony. See United States v. Figueroa-Lopez , 125 F.3d 1241, 1244-45 (9th Cir. 1997) (admitting expert testimony of a special agent opining on the behavior of drug traffickers); State v. Rothlisberger , 2006 UT 49, ¶ 31, 147 P.3d 1176 (admitting expert testimony of a police officer on determining whether a quantity of drugs is for distribution purposes); Salt Lake City v. San Juan , 2015 UT App 157, ¶ 2, 353 P.3d 623 (admitting expert testimony of a police officer on detecting signs of impairment). The question in this case, however, is whether Officer was qualified to testify as an expert on the topic of alcohol burn-off rates based on the foundation provided at trial.

¶18 Unlike signs of impairment or the behavior of drug traffickers, the burn-off rate of alcohol from the human system is not something that an officer can observe and form an expert opinion about based on training and experience. See State v. Ohotto , 261 Or.App. 70, 323 P.3d 306, 310-11 (2014) (stating that testimony regarding "alcohol absorption and elimination rates" is not derived from an individual's "training and prior experience as a police officer"). Instead, it is necessarily scientific testimony derived from lab testing, based on technical training, and presented by an expert qualified in that area. Burn-off-rate testimony requires "a formulaic calculation derived from scientific understandings of physiological processes that cannot be achieved through reading a training manual, conducting routine [DUI] investigations in the course of law enforcement, and attending [a training] course." Id. at 311.

¶19 The error in this case was admitting Officer's burn-off-rate testimony where the State failed to establish a sufficient foundation that Officer had the necessary scientific expertise, based on education, training, or otherwise, to offer burn-off-rate testimony. It is not that officers, as a class, can never be qualified to provide such testimony. See State v. Claybrook , 193 Ariz. 588, 975 P.2d 1101, 1103 (App. 1998) ("The expert witness who presents BAC retroactive extrapolation evidence can be a police officer or the operator of the machine if properly certified and in addition possesses superior knowledge, experience and expertise on the question." (cleaned up)); Commonwealth v. Gonzalez , 519 Pa. 116, 546 A.2d 26, 31-32 (1988) (holding that a police officer was qualified as an expert on the elimination of alcohol from the bloodstream where he worked in the police laboratory and had specific education in the pharmacology and toxicology of alcohol). But here, no evidence was presented to show that Officer "understood the process of alcohol elimination or relevant factors for consideration." See People v. Beck , 418 Ill.Dec. 594, 90 N.E.3d 1083, 1111 (2017). Nor was any testimony offered to explain the nature, extent, or depth of his training and education on burn-off rates of alcohol.

¶20 Participating in a course at the police academy where burn-off rates were generally mentioned shows merely that Officer was exposed to information-not that he is an expert in any of the subjects touched on in the course of study. Thus we agree with Harvey that the testimony at trial failed to establish that Officer had sufficient training to qualify as an expert on the subject of alcohol burn-off rates. Therefore, Officer's testimony about the alcohol burn-off rate was improperly admitted.

II. The Harm From the Admission of Officer's Burn-Off-Rate Testimony

¶21 We must next determine whether the erroneous admission of Officer's burn-off-rate testimony was harmless. See State v. Reece , 2015 UT 45, ¶ 33, 349 P.3d 712 ("Errors are often harmless where there is overwhelming evidence in the record of the defendant's guilt."); see also State v. Dunlap , 2010 UT App 122U, para. 3, 2010 WL 1920043 (stating that improperly admitted evidence is harmless if other evidence provides "overwhelming proof that [a defendant is] guilty of DUI"). In DUI cases, this court has oft stated that a jury may properly consider the entirety of the evidence in determining whether the level of impairment due to consumption of alcohol makes it unsafe for an individual to drive. For example, we have determined that even if a defendant's statements about the number of alcoholic beverages he had consumed was improperly admitted, such error was harmless beyond a reasonable doubt because the prosecution produced other "strong evidence" of the defendant's guilt, including the odor of alcohol on the defendant, blood shot eyes, failure of two out of three field sobriety tests, inability to count to thirty, admission to drinking, slow and slurred speech, failure to stop or slow down at a red light, inability to remember details about the night, and refusal to submit to a breathalyzer test. Salt Lake City v. Kane , 2007 UT App 44U, paras. 4-5, 2007 WL 479633 ; see also Dunlap , 2010 UT App 122U, paras. 5-6 (noting that even if the defendant's intoxilyzer results had been excluded, the jury could have considered all the other evidence, including the defendant's driving in the wrong direction, urinating himself, slurred speech, and lying on the ground next to his vehicle, to determine whether defendant was incapable of safely operating a vehicle).

¶22 Here, the State argues that other evidence-apart from the BAC evidence-conclusively establishes that Harvey was incapable of safely operating a vehicle. The State makes three specific points. First, the State argues that Harvey demonstrated an unusual driving pattern. For example, Officer tried to stop Harvey around one o'clock in the morning, but Harvey did not immediately pull over, even though there was ample room and the streets were empty at that hour. And instead he continued for a block and a half and even stopped at a red light, all while the patrol car's overhead lights were flashing. Second, when Officer approached Harvey's truck, Harvey displayed suspicious behavior. He rolled down his window only a few inches. He maintained his gaze straight ahead and refused to make eye contact with Officer. Officer noticed signs that Harvey had likely been drinking an alcoholic beverage. Not only was the odor of alcohol emanating from Harvey's truck, but Harvey's passenger was trying to hide a half-consumed bottle of vodka as Officer approached. Harvey's left eye-the only one Officer could see because Harvey declined to make eye contact-appeared glassy and bloodshot. Third, even though Harvey denied that he had been drinking alcohol, he refused to take a breath test.

¶23 Unlike this case, all the cases we have identified where a driver was convicted of DUI for being under the influence of alcohol to a degree that rendered a person incapable of safely operating a vehicle, see Utah Code Ann. § 41-6a-502(1)(b) (LexisNexis 2014), as opposed to having a BAC over the legal limit, have in common the presence of some evidence of the driver's incapacity to operate the vehicle safely, see State v. Salgado , 2018 UT App 139, ¶¶ 33-35, 37, 427 P.3d 1228 (noting that a defendant's creating a "traffic hazard" by driving considerably below the speed limit, non-responsiveness to several attempts made by an officer to pull over, poor performance on field sobriety tests, maintaining an "intent focus straight ahead," very droopy eyelids, and confusion about being stopped were enough for the State to meet its "burden of producing believable evidence on each element of DUI"); State v. Van Dyke , 2009 UT App 369, ¶¶ 12-13, 15, 36-37, 223 P.3d 465 (holding "[e]ven in the absence of direct evidence that the defendant drove recklessly or violated traffic rules, the jury was free to consider all of the evidence presented," including the defendant's slurred speech, glazed eyes, incoherence, staggering, unsteadiness, "slow and lethargic" movements, "lack of control of his actions," "impaired judgment," and boisterous behavior before driving "to determine whether his level of impairment was such that it was unsafe for him to drive" and that "[u]nder these circumstances, there was sufficient evidence from which the jury could find, beyond a reasonable doubt that [the defendant's] level of intoxication made it unsafe for him to be driving"); Rosengreen v. State , Dep't of Public Safety , 2003 UT App 183U, para. 5, 2003 WL 21373157 (concluding that even assuming an officer failed to comply strictly with the standards for the administration of FSTs, the officer's testimony that the defendant was incapable of safely operating a vehicle based on the odor of alcohol on the defendant's breath and the defendant's performance on three FSTs, admission that he had consumed two or three beers, swaying during and between FSTs, difficulty in maintaining his balance, and chattiness constituted sufficient and reliable evidence of defendant's incapacity to operate a vehicle safely).

¶24 Such evidence of incapacity is lacking in the testimony offered by the State's witnesses against Harvey. And this lack of evidence of Harvey's incapacity is the fundamental problem with all the other non-BAC evidence offered by the State. None of it shows that Harvey was impaired such that he could not safely operate his truck. Officer did not point to any abnormalities in Harvey's driving patterns. Now the State argues that Harvey displayed an unusual driving pattern because he did not immediately pull over after Officer activated the lights on his patrol car. But taking a block and an half to pull over hardly qualifies as an indication of impaired driving. Just as likely is that Harvey was thinking clearly enough to buy some time for his passenger to try to hide the open bottle of vodka before pulling over. And Officer did not note anything unusual about the manner in which Harvey pulled over. Officer offered no indication that Harvey slurred his speech during their interaction; he did not mention the odor of alcohol on Harvey's breath. On the contrary, Officer stated that Harvey kept his balance and did not lean on anything when he got out of his truck in preparation to complete the FSTs. And no mention is made of Harvey struggling to comply with Officer's orders during the FSTs.

¶25 It is beyond question that Harvey had been drinking. In fact, Harvey's counsel admitted, "There was alcohol in [Harvey's] blood. We all acknowledge that. If that were the issue here today[,] ... I couldn't ask you not to find him guilty." Apart from his counsel's concession, there is abundant evidence that Harvey was drinking on the night in question. There was an open container of vodka, the truck reeked of alcohol, Harvey avoided making eye contact, Harvey rolled down the window only two inches, and Harvey's eye appeared to be bloodshot. But at most, these circumstances show that Harvey had been drinking and that he was trying to hide that he had been drinking. We note that Harvey has a rather lengthy criminal history, including two recent DUIs. Thus, he had good reason-at least from his perspective-to be circumspect as he tried to avoid additional interaction with the legal system. But none of these circumstances-even when considered in aggregate-indicate that Harvey was impaired to such an extent that he could not safely drive. And we do not regard Harvey's refusal to submit to a breath test as evidence of impaired driving. It certainly indicates Harvey's consciousness that he had been drinking and driving, but there is no indication that his refusal equates to the necessary level of impairment.

¶26 Thus, the only indication that Harvey was impaired necessarily comes by way of the two failed FSTs. But these two failed tests, standing alone, are insufficient to support a finding beyond a reasonable doubt that Harvey was so impaired that he was incapable of safely operating his vehicle. Although Harvey failed the HGN test, such failure did not show incapacity. Rather, it merely indicated that Harvey had alcohol in his system, a fact that Harvey readily concedes. But Harvey also passed the VGN test. So although there was admittedly alcohol in Harvey's blood, the combination of the two tests could potentially show-at the very most-that there was not a high amount present.

¶27 Harvey also failed the walk-and-turn test. But we deem Harvey's failure of this FST to be an unreliable indication of his impairment because Harvey had suffered some serious previous injuries (i.e., a shark bite and a bullet wound ) to both legs-injuries that likely compromised his ability to complete the walk-and-turn test successfully.

As Harvey points out, studies show that fifty percent of completely sober drivers fail the walk-and-turn test. Steven J. Rubenzer, The Standardized Field Sobriety Tests: A Review of Scientific and Legal Issues , 32 Law & Human Behavior 293, 297 (2008). Thus, it is little surprise that Harvey, given his previous injuries, also failed this test.

¶28 Further, in our survey of cases, courts generally hold that FSTs provide a means of estimating only BAC, not the degree of incapacity. See Coffey v. Shiomoto , 60 Cal.4th 1198, 185 Cal.Rptr.3d 538, 345 P.3d 896, 905 (2015) (recognizing that the HGN test, the walk-and-turn test, and the one-leg-stand test are "extremely accurate in discriminating between BACs above and below 0.08 percent" (cleaned up)); State v. Ortez-Olivia , 2018 WL 5879517, at *3 (Del. Super. Ct. Nov. 8, 2018) ("The standardized field sobriety tests ... are highly accurate and reliable tests for detecting blood alcohol concentrations at or above 0.10%, above the legal limit in this State of 0.08%."); State v. Lasworth , 131 N.M. 739, 42 P.3d 844, 845 (Ct. App. 2001) (recognizing that standardized field sobriety tests "enabled officers in the field to accurately estimate whether a motorist's BAC was at or above 0.08 percent ninety-one percent of the time").

¶29 Thus, in light of the weak evidence of impairment, there is a reasonable likelihood that the jury would have reached a different verdict if Officer's burn-off-rate testimony had been excluded.

CONCLUSION

¶30 Because the evidence of Harvey's incapacity to operate a vehicle safely was not so overwhelming as to render the erroneous admission of Officer's burn-off-rate testimony harmless, we determine that Harvey was prejudiced by the admission of the testimony in question. Therefore, we must vacate his DUI conviction and remand for a new trial.

      Harvey also contends that his counsel was ineffective for failing to move to arrest judgment. Because we reverse on Harvey's first claim of error, it is unnecessary to address the ineffective assistance of counsel claim.

      We certainly acknowledge that sufficient education or training can provide a foundational basis for expert testimony. See Utah R. Evid. 702(a) ("[A] witness who is qualified as an expert by ... training ... or education may testify in the form of an opinion ...."). In the present case, however, Officer's testimony does not establish anything besides the fact that he "learned" of burn-off rates at the police academy.

      Our supreme court has held that the refusal to take an intoxilyzer test is admissible as evidence of consciousness of guilt. Sandy City v. Larson , 733 P.2d 137, 140-41 (Utah 1987) ; see also South Dakota v. Neville , 459 U.S. 553, 565, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (noting that it is not fundamentally unfair for a state to use the refusal to take a test to determine BAC as evidence of guilt).

      We have scoured the transcript of Officer's testimony and confirmed that he testified that the FSTs established only the presence of alcohol, not the blood alcohol level or any indication of inability to operate a motor vehicle safely.

      We note that had the State presented testimony to this point (i.e., that the failure of FSTs is an accurate indicator of BAC in excess of .08), the jury could have convicted Harvey for operating a vehicle while having a BAC of .08 or greater. See Utah Code Ann. § 41-6a-502(1)(c) (LexisNexis 2014). But neither Officer, nor any other witness, so testified.


text:
    Cheryl SPRAGUE, Appellee, v. AVALON CARE CENTER, Appellant.
    No. 20180019-CA
    Court of Appeals of Utah.
    Filed June 20, 2019
    Catherine M. Larson and Jennifer R. Carrizal, Salt Lake City, Attorneys for Appellant
    Karra J. Porter, Salt Lake City, and Kristen C. Kiburtz, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.
    Opinion
   MORTENSEN, Judge:

¶1 After a six-day trial, which included testimony from seventeen witnesses-almost half of whom were experts-a nearly unanimous jury awarded Cheryl Sprague, individually and on behalf of the heirs and estate of Morley Reed Sprague (collectively, Sprague), a $ 2 million verdict against Avalon Care Center (Avalon) for Sprague's injuries and resulting wrongful death. Avalon appeals, arguing that the trial court erred by denying its motion for partial directed verdict and admitting various expert testimony. We affirm.

BACKGROUND

¶2 Morley Sprague was an elderly man who suffered from advanced multiple sclerosis (M.S.) and paralysis of his lower extremities. As a result, he was confined to a bed or wheelchair and was "unable to reposition himself while sitting or lying down." This placed Sprague "at serious risk for developing pressure ulcers."

¶3 In 2012, Sprague was admitted to Avalon, where he stayed for twenty-nine days. When he arrived, Sprague suffered from "a small, stage [one] pressure ulcer on his right buttock." Avalon assigned Sprague a doctor, Scott E. Southworth; a wound care nurse, Richard Fonoti; and other nurses and nurses' aides. Southworth relied on Fonoti and the other nurses to keep him informed about Sprague's condition, particularly the pressure ulcer.

¶4 Within one month of being admitted to Avalon, Sprague's stage one pressure ulcer "had significantly deteriorated-to the point where bone was exposed-and had become infected." Sprague's family removed him from Avalon, but he never fully recovered. Over the next twenty-two months, attempts to treat the wound with surgery and antibiotics were unsuccessful and Sprague died. His heirs and estate subsequently filed this medical malpractice and wrongful death action.

Denial of the Partial Directed Verdict

¶5 At trial, Sprague called expert witness Kevin Emmons-a board certified wound care nurse and professor of nursing at Rutgers University-to testify to the standard of care of a wound care nurse. On direct examination, Sprague's counsel asked,

Based on the materials that you have reviewed, and your understanding of wound care, have you formulated any opinions to a reasonable degree of medical probability with regard to what the standard of care, or what the standard of care would have been required of [Avalon] in treating [Sprague's] wounds ?

Emmons answered, "Sure," then expressed and explained those opinions.

¶6 Emmons opined that Avalon breached the minimum standards of care in the following seven respects: (1) inadequate turning of Sprague, (2) failure to minimize wheelchair time, (3) failure to provide a ROHO cushion, (4) failure to provide an air mattress sooner, (5) failure to provide qualified staff, (6) failure to refer Sprague to a specialist, and (7) failure to properly involve Sprague's family in his care. Emmons elaborated on each point by citing medical records, deposition testimony, and other factual bases for his opinions. Emmons "vigorously defended these opinions on cross-examination."

¶7 At the conclusion of Sprague's case-in-chief, Avalon moved for a partial directed verdict on five of the seven alleged breaches. Avalon argued that Emmons's testimony had not established each alleged breach of the standard of care to a reasonable degree of medical probability. The trial court denied the motion. The court agreed that it was Sprague's burden to prove the elements to a reasonable degree of medical probability but that "Emmons's testimony either explicitly or implicitly met that standard based on its totality."

Expert Witness Testimony

¶8 Sprague's counsel elicited extensive testimony from Southworth-Sprague's treating physician at Avalon-on direct examination. Among other things, Southworth answered questions related to the seven alleged duties and breaches discussed by Emmons. During this line of questioning, Southworth was asked, "So these seven [duties and breaches], you would agree, are basic standards of care for treating patients, such as [Sprague], that have existing pressure ulcers [?]" Avalon objected on the ground that Southworth was not a nurse and therefore could not provide expert testimony on the standard of care of nurses. The court partially sustained the objection and provided the following jury instruction:

So I'm going to allow him to answer the question, but I want to explain something to the jury. You're going to be asked to make determinations as to the nursing standard of care in this case. Dr. Southworth is not a nurse, okay? I'm going to allow him to answer these questions for the limited purpose of answering the question as far as his knowledge as a doctor about wound care. But as I said, later in the case you're going to hear from experts who are going to talk about nursing standard of care, and that is what is applicable in this case.

Southworth then answered, "These are things that I, as a physician, would expect."

¶9 A key witness for Avalon was Dr. Kwon Lee-a certified wound care physician-who testified that the development and progression of Sprague's pressure ulcers were "unavoidable." Lee testified that he had reviewed "a lot" of Sprague's records, including records before, during, and after Sprague's stay at Avalon. Lee also reviewed the depositions of Fonoti and other nurses, Sprague's experts, Sprague's wife, and Sprague's treating physicians. With that preface, Avalon asked Lee if he had formed opinions in the case and what those opinions were. Lee responded, "The care at [Avalon], I believe was reasonable. ... And the care rendered by [Fonoti] was appropriate."

¶10 Lee elaborated on general nursing standards of care in response to being asked what other interventions could have been made to prevent a pressure ulcer. Specifically, he offered that "certainly turning and repositioning is really the standard. Using pressure reducing mattresses and so forth, cushions .... [I]f there's skin that's prone to moisture, you want to use like a barrier cream, like a thick type of ointment .... And there are dressings that you can use, like foam dressings that will actually help provide some pressure relief."

¶11 Next, Lee gave opinions about the standard of care expected of Fonoti. Lee stated that Fonoti had an obligation as a wound care nurse to supervise other nurses and to ensure appropriate preventative measures were in place. He further opined that Fonoti had not caused the development of, or any additional injury to, Sprague's pressure ulcer. Finally, Lee testified that Avalon could not have implemented other interventions that would have helped to avoid Sprague's pressure ulcer.

¶12 On cross-examination, Sprague's counsel first confirmed Lee's testimony on the general nursing standards of care. As a result, Lee began backtracking on his earlier testimony by characterizing certain actions as "recommendations" rather than "standards" as he had previously stated. When Sprague's counsel pressed the issue, Avalon objected, claiming the cross-examination was beyond the scope of the direct examination. Avalon argued that Sprague's questions went to general nursing standards of care, whereas questions to Lee on direct had been limited to the standard of care as to just Fonoti. The trial court overruled the objection because Avalon "asked some really broad standard of care questions" on direct examination. Sprague continued attempting to discredit Lee, and Avalon again objected to the questioning as beyond the scope of direct examination. Again, the court overruled the objection and acknowledged that the purpose of the questions was to impeach Lee on his earlier testimony.

¶13 Sprague then attempted to impeach Lee on his position that no other mitigating measures could have been taken to prevent the pressure ulcer. Avalon again objected, arguing that it "had limited [Lee's] testimony to [Fonoti]" and that questions about the other attending nurses were therefore beyond the scope of the initial examination. The trial court again overruled this objection because Lee had testified broadly on direct examination, effectively opening the door to the line of questions related to the nurses working under Fonoti's supervision.

¶14 Next, the trial court admitted Emmons's testimony related to Sprague's alleged medical expenses. Emmons's transcribed testimony, in total, covered nearly 200 pages in the record. In addition to testifying about his professional expertise and experience, Emmons testified that he reviewed "a few thousand records" related to this case. Those records included (1) documents arising from Sprague's initial hospitalization, his first long-term care, his second long-term care, his stay at Avalon, his hospice stay, and his discharge to home care; (2) Sprague's death certification; (3) depositions of the nurses, physicians, and Avalon's experts; and (4) Sprague's medical bills, for which Emmons provided a summarized report (Summary).

¶15 On voir dire, Avalon suggested that Emmons had not personally reviewed all the documents listed in the Summary because he had not also listed each provider separately, and by name, in his expert report. Emmons disagreed and explained that when a facility orders a medical service it may not always perform that service; but, that the reports, bills, and other documents related to that service remain within the ordering facility's records. So rather than list each individual provider who performed a service, Emmons's expert report simply identified the facility that ordered the service. Counsel for Avalon then stated, "I've made my point. I would move to just strike the portions of the [S]ummary that refer to those providers of whose records were not identified in the [expert] report." The trial court then asked Avalon, "Okay. Were you provided those records in the course of this case?" Avalon responded, "I have the records. Yes." The trial court conditionally admitted the Summary but indicated it would revisit the issue "at the next break."

¶16 At the next recess, Avalon again acknowledged it had received all the relevant medical bills at issue. The trial court asked if Avalon had "a good faith basis to believe that any of these dollar signs on this [S]ummary don't meet up with the real bill?" Avalon admitted, "No. They meet up with the bill." The court indicated that it believed Avalon's contentions with the medical bills were related to causation, not their admissibility. Avalon's counsel responded, "What my point was, was there are bills in there that are costs for care that's not related to the pressure ulcer." The court advised counsel that "there's certainly nothing preventing you, in your case, from having a witness tell that to a jury." The court ruled that the Summary was admissible and advised Avalon that if it wanted to respond to the causation components of the medical bills, it "certainly [could]." The court further instructed, "I want [Avalon] to provide to [Sprague] a list of the items that [it] think[s] are not [medical costs related to causation] by Monday morning." Avalon's counsel suggested, "[J]ust as another alternative, there's nothing precluding me from just raising this issue in closing?" The court responded, "[I]f you'd rather go that way, that's fine. By admitting [the Summary], I'm certainly not foreclosing you the opportunity to argue that some of those costs were not causally related." Avalon answered, "Right. Okay. Fair enough."

¶17 Sprague also called Dr. Mary Parsons who testified about Sprague's cause of death. During Parsons's testimony, Sprague's death certificate-which she had completed and signed-was also admitted into evidence. Parsons testified to, among other things, her general training and experience concerning (1) treating patients with pressure ulcers ; (2) interpreting symptoms of M.S.; (3) treating Sprague as his primary care physician for "15 to 16 years"; (4) reviewing Sprague's medical records from before, during, and after the time he was a patient at Avalon; (5) completing death certificates generally, and for Sprague; (6) consulting with Sprague's other doctors and nurses about his ailments, treatments, and cause of death; and (7) consulting with Sprague's family about his ailments, treatments, and cause of death.

¶18 Next, Parsons testified that Sprague's cause of death-as she had indicated on the death certificate-was the pressure ulcer. Avalon objected, stating, "I'll just renew our prior objection that we've made previously."

Counsel for each party approached the bench, and the court indicated that it was concerned whether a "reasonable certainty of preponderance [was] entered." Sprague's counsel offered to cure this objection by saying, "I can ask her." The court responded, "[W]hy don't you." When direct examination resumed, Sprague's counsel asked Parsons, "[S]o would you be comfortable saying that what you put on the death certificate is the cause of death to a reasonable degree of medical probability?" Parsons answered, "Yes." The court then admitted the death certificate without objection.

¶19 Dr. David Pegues also testified to Sprague's cause of death. In over seventy pages of testimony, much of which laid the foundation of Pegues's experience and personal knowledge of Sprague's medical records, Pegues opined on Sprague's cause of death, without objection by Avalon. When Sprague's counsel asked Pegues, "[H]ave you formed an opinion to a reasonable degree of medical probability as to what caused [Sprague's] death?" Pegues answered, "[T]he most likely cause of death, was related to the presence of and complications of the ... ulcer that had then been present for 20 months." Pegues later testified-again without objection-that although it was possible that another ailment such as a urinary tract infection, pneumonia, or influenza could have been the cause of death, "the available medical documentation does not support [any of those] as the probable cause of death."

¶20 After a six-day trial, the jury found Avalon liable and awarded $ 2 million in damages. Avalon appeals.

ISSUES AND STANDARDS OF REVIEW

¶21 First, Avalon contends that its motion for partial directed verdict was denied in error. "The grant or denial of a directed verdict is ... a question of law reviewed for correctness." Liley v. Cedar Springs Ranch Inc. , 2017 UT App 166, ¶ 12, 405 P.3d 817. And when, as is the case here, "an appellant challenges the denial of a motion for a directed verdict based on the sufficiency of the evidence, the applicable standard of review is highly deferential." Id. (cleaned up).

¶22 Second, Avalon contends that the trial court erred by admitting testimony from the following experts: Southworth, Lee, Emmons, Parsons, and Pegues. "We review the trial court's decisions regarding the admission of expert witness testimony for an abuse of discretion." Balderas v. Starks , 2006 UT App 218, ¶ 13, 138 P.3d 75.

ANALYSIS

I. Directed Verdict

¶23 Avalon contends that its motion for partial directed verdict should have been granted because Sprague failed to establish that Avalon breached the standard of care as to five of the seven standards identified by Emmons. Avalon specifically argues that because Emmons did not expressly state his opinions in terms of "a reasonable degree of medical probability," Sprague failed to establish a prima facie case. But as discussed below, Utah law does not require that an expert witness expressly invoke that phrase separately and repeatedly in conjunction with each stated opinion, and therefore, we disagree.

¶24 "To establish medical malpractice, a plaintiff must prove four elements: (1) the standard of care required of health care providers under the circumstances; (2) breach of that standard by the defendant; (3) injury proximately caused by the breach; and (4) damages." Morgan v. Intermountain Health Care, Inc. , 2011 UT App 253, ¶ 8, 263 P.3d 405. Owing to the complex nature of medical malpractice cases, plaintiffs generally must establish the standard of care and proximate cause elements through expert testimony. Dalley v. Utah Valley Reg'l Med. Center , 791 P.2d 193, 195-96 (Utah 1990) ; see also Chadwick v. Nielsen , 763 P.2d 817, 821 (Utah Ct. App. 1988) ("Due to the technical and complex nature of a medical doctor's services, expert medical testimony must be presented at trial in order to establish the standard of care and proximate cause ....").

¶25 Our supreme court, in State v. Jarrell , 608 P.2d 218 (Utah 1980), summarized the standard required of medical experts as follows:

The general rule regarding the certainty of an expert's opinion is that the expert may not give an opinion which represents a mere guess, speculation, or conjecture. Expert medical opinion evidence based on a probability, possibility, or likelihood has been admitted, however, where the witnesses expressed statements in language which sufficiently represented their own best judgment to a reasonable certainty.

Id. at 230 (cleaned up). This rule does not require that an expert expressly state the phrase, "to a reasonable degree of medical probability" for their testimony to be admissible or entitled to weight. Indeed, consistent with the trial court's approach here, expert testimony should be viewed as a whole and analyzed on its substance. See, e.g. , Danny's Drywall v. Labor Comm'n , 2014 UT App 277, ¶ 17, 339 P.3d 624 ("When the report is read as a whole, and in light of th[e] clear statement that [the claimant] has the [relevant] medical conditions, it is evident that the medical panel's opinion is based on the panel's assessment of medical probability." (cleaned up)); Johnson v. Montoya , 2013 UT App 199, ¶ 10, 308 P.3d 566 ("The Utah Rules of Evidence do not require expert testimony to exhibit a reasonable degree of certainty to be admissible but only a threshold showing of reliability. This threshold requirement requires only a basic foundational showing of indicia of reliability." (cleaned up)).

¶26 Here, Emmons's expert testimony was sufficiently reliable to establish the prima facie elements of medical malpractice and to survive Avalon's motion for directed verdict. During his direct examination, Sprague's counsel asked,

Based on the materials that you have reviewed, and your understanding of wound care, have you formulated any opinions to a reasonable degree of medical probability with regard to what the standard of care, or what the standard of care would have been required of [Avalon] in treating [Sprague's] wounds ?

Emmons answered, "Sure," and then expressed and explained those opinions. The fact that Emmons did not repeat the phrase "to a reasonable degree of medical probability" each time he stated an opinion is neither here nor there. The question is whether Emmons expressed his opinions in a way that indicated sufficient certainty. Besides the alleged shortcoming of not attaching the incantation of "a reasonable degree of medical probability," the record gives no indication that Emmons's opinions were offered under a different standard than the one with which he prefaced his entire testimony. Avalon argues that because Emmons failed to separately qualify each of his opinions, we cannot know what standard he was applying. We disagree that his testimony, when reviewed as a whole, was compartmentalized in the manner Avalon suggests. And Avalon does not point to any portion of the record that would lead us to conclude that Emmons changed the general qualification that his opinions were formulated to a reasonable degree of medical probability.

¶27 We see no basis to disagree with the trial court's conclusion that Emmons's opinions concerning all seven alleged breaches were offered-either expressly or impliedly-to a reasonable degree of medical certainty. See Liley v. Cedar Springs Ranch Inc. , 2017 UT App 166, ¶ 12, 405 P.3d 817 (stating that when a challenge to the denial of a directed verdict concerns the sufficiency of the evidence presented below, appellate review is "highly deferential" to the trial court's findings (cleaned up)). We conclude that Emmons's testimony, as a whole, displayed the requisite indicia of reliability required to be admissible, and therefore, the directed verdict was properly denied.

II. Expert Testimony

¶28 Next, Avalon contends that the trial court abused its discretion in admitting expert testimony from five witnesses. We discuss each witness in turn.

Utah Dep't of Transp. v. TBT Prop. Mgmt., Inc. , 2015 UT App 211, ¶ 15, 357 P.3d 1032 ("The proper scope of cross-examination is within the sound discretion of the trial court and should not be disturbed absent a showing of abuse [of discretion]." (cleaned up)).

A. Southworth

¶29 Avalon argues that the trial court erred in allowing Southworth to testify to the standard of care for nurses, because he is not a nurse. "In Utah, a practitioner of one school of medicine is ordinarily not competent to testify as an expert in a malpractice action against a practitioner of another school due to the wide variation between schools in both precepts and practices." De Adder v. Intermountain Healthcare, Inc. , 2013 UT App 173, ¶ 16, 308 P.3d 543 (cleaned up) (holding that "a doctor's training as a physician is not sufficient by itself to qualify him or her to testify as an expert in a malpractice action against a nurse" (cleaned up)). An exception to this rule is when an expert "is knowledgeable about the applicable standard of care." Id. ¶ 17 (cleaned up); see, e.g. , Creekmore v. Maryview Hosp. , 662 F.3d 686, 692-93 (4th Cir. 2011) (discerning no abuse of discretion where the doctor, who testified about the nursing standard of care, "regularly perform[ed] the procedure at issue ... and the standard of care for performing the procedure is the same" for doctors and nurses (cleaned up)).

¶30 Avalon argues that the trial court erred by overruling its objection and admitting Southworth's "extensive" opinions on the nursing standard of care. But that is not what happened here. Avalon ignores that its objection to Southworth's testimony was partially sustained and that the court gave a curative instruction-it told the jury to consider Southworth's testimony only for the "limited purpose of ... his knowledge as a doctor about wound care." This instruction properly informed the jury that Southworth was permitted to testify to the standard of care only as it pertained to his knowledge as a physician, not as a nurse. See De Adder , 2013 UT App 173, ¶ 17, 308 P.3d 543 (permitting expert testimony to the extent that an expert "is knowledgeable about the applicable standard of care" (cleaned up)). In other words, because Southworth's testimony was limited to his knowledge as a physician on the standard of care owed by Avalon, it was properly admitted. And to the extent that Avalon believed that this testimony was not relevant to the standard of care for nurses, it could have, and should have, made that argument to the jury. Therefore, we conclude that the trial court did not err in admitting Southworth's testimony.

¶31 Further, Avalon's opening brief did not include any analysis, discussion, or even a mention of how admitting Southworth's testimony was prejudicial. See Camco Constr. Inc. v. Utah Baseball Academy Inc. , 2018 UT App 78, ¶ 42 n.13, 424 P.3d 1154 ("Issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court." (cleaned up)). Indeed, even in its reply brief, Avalon only dedicates a single sentence to prejudice: "Moreover, allowing such testimony was highly prejudicial and substantially affecting the likelihood of a different result." This conclusory sentence falls well short of showing a reasonable likelihood that the verdict would have been different if Southworth's testimony had been excluded. See Campbell v. State Farm Mutual Auto. Ins. Co. , 2001 UT 89, ¶ 13, 65 P.3d 1134 ("A trial court will not be reversed for an abuse of discretion unless there is a reasonable likelihood that the verdict would have been different if the trial court had excluded the expert testimony." (cleaned up)), rev'd on other grounds , 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). Thus, even if we were persuaded that the court abused its discretion, Avalon has not shown that the error was prejudicial.

B. Cross-Examination of Lee

¶32 We next turn to the issue of the scope of Lee's cross-examination. Lee testified on direct examination to the standards of care for treating a patient such as Sprague. Specifically, he discussed the general nursing standards of care for treating bedsores and the specific standards of care applicable to Fonoti. On cross-examination, the court permitted Sprague's counsel to ask questions regarding the general nursing standards of care and, importantly, to impeach Lee as he was backtracking on his earlier testimony by phrasing certain actions as "recommendations" rather than "standards." Avalon argues that this testimony was beyond the scope of direct examination because Lee "was designated by [Avalon] in the limited capacity of offering testimony of causation, damages, and the standard of care of [Avalon's] wound care nurse, [Fonoti], ... which differs from the standard of care applicable to [Avalon's] general nursing staff." We disagree.

¶33 The Utah Rules of Evidence provide that "[c]ross-examination should be limited to" (1) "the subject matter of the direct examination" and (2) "matters affecting the witness's credibility." Utah R. Evid. 611(b). In other words, under rule 611(b), a trial court has broad discretion to permit a party, on cross-examination, to ask questions related to the subject matter of direct examination or to impeach the witness. Id. ; see also Whitehead v. American Motors Sales Corp. , 801 P.2d 920, 924 (Utah 1990) ("Having offered his expert opinion, the witness exposes himself to interrogation which ordinarily would have no place in the cross-examination of a factual witness, but the expert exposes himself to the most searching kind of investigation into his qualifications, the extent of his knowledge and the reasons for his opinion, including the facts and other matters upon which it is based." (cleaned up)); Utah Dep't of Transp. v. 6200 S. Assocs. , 872 P.2d 462, 469 (Utah Ct. App. 1994) ("The scope of the cross-examination of experts ... is very broad, since cross-examination is often the only protection of the opposing party against the unwarranted estimates that a certain class of mercenary experts is wont to indulge in." (cleaned up)).

¶34 Here, we conclude that the trial court did not abuse its discretion in permitting Sprague to continue to cross-examine Lee. First, Lee testified on direct-examination about standards of care in general, and as applied to Avalon, Avalon's nursing staff, and Fonoti. Therefore, on cross-examination, Sprague was properly permitted to ask questions on this same subject matter. Second, Sprague was permitted to impeach Lee. Avalon's contention that Sprague was not permitted to highlight that Lee was backtracking on his earlier testimony by phrasing certain actions as "recommendations" rather than "standards"-as he had previously stated-is legally incorrect. We therefore conclude that the trial court did not abuse its discretion in admitting Lee's testimony from cross-examination.

¶35 Further, Avalon's opening brief again does not demonstrate how admitting Lee's testimony was prejudicial. See Camco , 2018 UT App 78, ¶ 42 n.13, 424 P.3d 1154. And again, in its reply brief, Avalon dedicates only a single sentence to prejudice: "[T]he prejudice of [admitting Lee's testimony] is clear as there was a substantial likelihood of a different result." Thus, even if we were persuaded by Avalon on this alleged error, we would still be compelled to affirm. See Campbell , 2001 UT 89, ¶ 13, 65 P.3d 1134 (requiring a showing of prejudice to warrant reversal), rev'd on other grounds , 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).

C. Emmons-Medical Expenses

¶36 Avalon's next contention is that the trial court erred in admitting Emmons's testimony and related Summary concerning Sprague's medical bills. Specifically, Avalon argues that Emmons's testimony and Summary were deficient under rule 703 of the Utah Rules of Evidence and that Emmons's testimony and Summary were improperly admitted because his expert report was deficient under rule 26(a)(4)(B) of the Utah Rules of Civil Procedure.

1. Utah Rule of Evidence 703

¶37 The Utah Rules of Evidence provide, "An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed." Utah R. Evid. 703 ; see also State v. Kelley , 2000 UT 41, ¶ 18, 1 P.3d 546 ("The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." (cleaned up)). Here, the record indicates that Emmons's testimony and Summary satisfied rule 703 because he personally reviewed the medical bills at issue.

¶38 Avalon contends that Emmons did not have personal knowledge of each of Sprague's medical bills that were listed in the Summary because his expert report did not list each provider who generated a medical bill. The record shows otherwise. When Avalon questioned Emmons about his knowledge of the medical bills, he provided a succinct explanation: that he had indeed reviewed each medical bill, but for clarity, had limited references in his expert report to the ordering facility, rather than listing each discrete provider separately. Emmons explained that when a provider performs a service, all records related to that service are retained by that provider and the facility that ordered the service. Thus, on Emmons's expert report, certain facilities were referenced in connection with medical records and services it may have ordered but not actually performed. In other words, Emmons's testimony demonstrates that he did review each of Sprague's medical bills despite the fact that he may have listed only the ordering facility and not the provider who actually performed that service.

¶39 Furthermore, Avalon cannot show prejudice. When the trial court asked Avalon if it had "a good faith basis to believe that any of these dollar signs on this [S]ummary don't meet up with the real bill," Avalon conceded, "No. They meet up with the bill." Accordingly, where Avalon concedes that the figures in the Summary are accurate, we conclude that the trial court did not err in admitting Emmons's testimony or Summary under rule 703.

2. Disclosure Under Rule 26(a)(4)(B)

¶40 Avalon also argues that the trial court erred "in admitting [Sprague's] medical expense summary chart into evidence ... because [Sprague] did not comply with the disclosure requirements of Utah Rule of Civil Procedure 26." Avalon contends that Emmons's expert report was deficient under rule 26(a)(4)(B) because it "did not state that he reviewed the medical expense documentation relating to [various providers], all of which formed much of the medical expense summary." Avalon's contention is unavailing for three reasons.

¶41 First, Avalon abandoned its rule 26 disclosure objection at trial, and therefore the issue is not preserved for appeal. See State v. McNeil , 2013 UT App 134, ¶ 23, 302 P.3d 844 ("A claim is not preserved for appeal if a party initially objects but later ... abandons the objection and stipulates to the court's intended action."), aff'd on other grounds , 2016 UT 3, 365 P.3d 699. Avalon initially objected and moved the court to "strike the portions of the [S]ummary that refer to those providers whose records were not identified in the report." But Avalon abandoned this objection when it conceded that Sprague had disclosed all of the medical records, the medical records were accurate, and the point it intended to make to the court was that there "are costs for care that are not related to the pressure ulcer" contained in the Summary. Then, after Avalon conceded to the trial court that its objection concerned causation rather than admissibility, it did not pursue its original disclosure objection. Accordingly, Avalon abandoned its disclosure objection, and it is therefore not preserved for appeal. See ConocoPhillips Co. v. Utah Dep't of Transp. , 2017 UT App 68, ¶ 26, 397 P.3d 772 ("Defendants affirmatively represent[ing] to the court that they no longer sought a curative instruction ... in conjunction with [d]efendants' counsel's simultaneous proposal of an alternative remedy that did not involve a curative instruction, constituted a waiver."). Under such circumstances, we cannot conclude that the trial court abused its discretion in allowing the Summary into evidence.

¶42 Second, and in the same vein, Avalon invited any perceived error concerning the trial court's decision to admit Emmons's testimony and Summary. See State v. Winfield , 2006 UT 4, ¶ 15, 128 P.3d 1171 ("Invited error ... arises from the principle that a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." (cleaned up)). Although Avalon made its initial objection on the ground that Sprague's expert disclosures were deficient, it later conceded that its concern went to causation, not admissibility. And when the court offered to ameliorate these concerns by allowing Avalon's expert to opine on whether the medical bills related to causation, Avalon instead asked if it could rebut Emmons's testimony and Summary in its closing argument. The court responded, "[I]f you'd rather go that way, that's fine. By admitting [the Summary], I'm certainly not foreclosing you the opportunity to argue that some of those costs were not causally related." Avalon answered, "Right. Okay. Fair enough." Avalon thereafter did not raise similar concerns with the trial court, nor has it argued on appeal that it did. Accordingly, we conclude that Avalon invited any perceived error by signaling to the trial court that concerns over Emmons's testimony and Summary were cured by allowing Avalon to rebut that testimony in closing arguments and not thereafter renewing its disclosure objection. In short, the court gave Avalon the remedy it asked for.

¶43 Third, Avalon has not argued that it was prejudiced by the admission of Emmons's testimony or Summary, nor, in our view, can prejudice be found on these facts. See Campbell , 2001 UT 89, ¶ 13, 65 P.3d 1134 (requiring a showing of prejudice to warrant reversal), rev'd on other grounds , 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).

D. Parsons

¶44 Avalon, in its opening brief, contends that the trial court abused its discretion by "allow[ing] [Parsons] to offer opinions about the cause of [Sprague's] death" and admitting Sprague's death certificate. Avalon argues that Parsons failed to "meet a threshold showing of reliability" to testify to Sprague's cause of death and that her testimony and the death certificate were therefore admitted in error.

¶45 We reject Avalon's position for three reasons. First, Parsons's foundational testimony satisfied rules 702 and 703 of the Utah Rules of Evidence. Specifically, Parsons testified that she had extensive experience as a treating physician and had specifically treated patients with pressure ulcers. Parsons also testified that she had extensive experience and history with Sprague; she had consulted with Sprague's family and medical care providers; and she had reviewed all of the relevant medical records in this case. Thus, we conclude that Parsons's testimony established a basic "foundational showing of indicia of reliability" and therefore, the trial court did not abuse its discretion in admitting her testimony. See Johnson v. Montoya , 2013 UT App 199, ¶ 10, 308 P.3d 566 ("The Utah Rules of Evidence ... require[ ] only a basic foundational showing of indicia of reliability." (cleaned up)).

¶46 Second, although Avalon has argued that Parsons's testimony was not sufficiently reliable, it has failed to directly point to specific objections or "engage with" the trial court's specific rulings on those objections sufficient to satisfy its burden on appeal. See Gines v. Edwards , 2017 UT App 47, ¶ 31, 397 P.3d 612 (explaining that "the appellant must engage with and challenge the actual bases of the [trial] court's decisions" to persuade a reviewing court on appeal (cleaned up)). For example, Avalon's opening brief points out various criticisms of Parsons, including that "[h]er clinical practice does not include the management of [M.S.]" and that "Parsons has only treated a few patients with advanced [M.S.] like [Sprague]." These critiques, however, go only to the weight of the testimony offered by Parsons, see Gunn Hill Dairy Props., LLC v. Los Angeles Dep't of Water & Power , 2012 UT App 20, ¶ 45, 269 P.3d 980, not the indicia of reliability required for admissible expert testimony, see Johnson , 2013 UT App 199, ¶ 10, 308 P.3d 566.

¶47 Third, Avalon has not explained why any alleged error on this issue was prejudicial. See Campbell , 2001 UT 89, ¶ 13, 65 P.3d 1134 (requiring a showing of prejudice to warrant reversal), rev'd on other grounds , 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). Therefore, we conclude that the trial court did not err in admitting Parsons's testimony.

E. Pegues

¶48 Finally, Avalon argues that Pegues's testimony-about Sprague's cause of death-was erroneously admitted. This issue was not preserved below. The record shows that Pegues testified at least two separate times-without objection-that Sprague's cause of death was the pressure ulcer and not one of the other ailments that Avalon argued could have been the cause of his death. Where Avalon has not preserved this issue or argued that an exception to preservation applies, we decline to address it further. See State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443 ("When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.").

CONCLUSION

¶49 The trial court properly denied Avalon's motion for directed verdict because Sprague sufficiently established the elements of its claim. We also conclude that the trial court did not abuse its discretion in admitting expert testimony challenged by Avalon. Affirmed.

      Although eight of eight jurors found that Avalon breached the applicable standard of care, only seven found that Avalon's breach was the proximate cause of Sprague's death.

      "Our recitation of the facts is presented in the light most favorable to the jury's verdict, and comes from the testimony and evidence developed at trial." Utah Dep't of Transp. v. Target Corp. , 2018 UT App 24, ¶ 3 n.2, 414 P.3d 1080, cert. granted , 425 P.3d 800 (Utah 2018).

      Bedsores-also called pressure ulcers and decubitus ulcers-
      are injuries to skin and underlying tissue resulting from prolonged pressure on the skin. Bedsores most often develop on skin that covers bony areas of the body, such as the heels, ankles, hips and tailbone. People most at risk of bedsores are those with a medical condition that limits their ability to change positions or those who spend most of their time in a bed or chair. Bedsores can develop quickly. Most sores heal with treatment, but some never heal completely.
      Bedsores (pressure ulcers ) , Mayo Clinic (March 9, 2018), https://www.mayoclinic.org/diseases-conditions/bed-sores /symptoms-causes/syc-20355893 [https://perma.cc/28QD-8BM5].

      Bedsores are divided into four stages, one being the least severe to four being the most severe. Bedsores , Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/bedsores [https://perma.cc/D2LN-RHUK].

      A ROHO cushion is
      designed to reduce pressure sore (ischemic ulcer) formation. The cushion uses air-fluid interconnected cells to mimic the supportive properties of water and reduce the incidence of pressure sores. The technology employs four key principles to achieve this end: six degrees of freedom (cells are independent and can adapt to the anatomy of the patient), low surface tension (permits immersion into the cushion without deforming tissue), constant restoring force (forces and pressures pushing back against the patient are kept constant at all points of contact), and low friction and shear (the slick surface prevents friction between the cushion and the patient's skin).
      J.C. Oleson, The Punitive Coma , 90 Cal. L. Rev. 829, 868 n.219 (2002).

      Avalon concedes that the standard of care and breach were sufficient to support a prima facie case with respect to Avalon's failure to provide a ROHO cushion and its failure to involve Sprague's family in his ongoing care.

      We recite the following expert witness testimony in the same order as the issues have been presented on appeal rather than the order in which the witnesses actually testified at trial.

      In this context, voir dire is a "preliminary examination to test the competence of a witness." Voir dire , Black's Law Dictionary (10th ed. 2014).

      Avalon also contends that Sprague's death certificate-which was signed by Parsons-was erroneously admitted "because it sets forth an opinion as to [Sprague's] cause of death that does not meet [rule] 702's requirements for expert causation testimony." Because this is the same argument against Parsons's expert testimony in general, and because the death certificate is cumulative evidence of Parsons's testimony, we address these points together. Infra ¶¶ 44-47.

      Avalon also contends that Emmons's testimony should have been excluded under rule 702 of the Utah Rules of Evidence. Avalon, however, never made a rule 702 objection at trial, and therefore this issue is not preserved, and we decline to address it. See State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443 ("When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.").

      Other than an argument that Emmons had not personally reviewed or was otherwise made aware of particular expenses, Avalon argues no other basis for exclusion under rule 703 on appeal.