author: CHRISTIANSEN FORSTER, Judge:

text:
    A-1 SEPTIC TANK SERVICES LLC and Auto Owners Insurance Company, Petitioners, v. Kris MESSERSMITH, Respondent.
    No. 20170690-CA
    Court of Appeals of Utah.
    Filed April 25, 2019
    Mark R. Sumsion and Cody G. Kesler, Salt Lake, Attorneys for Petitioners
    Austin B. Egan, Draper, Attorney for Respondent
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 An administrative law judge (ALJ) dismissed with prejudice a request for a hearing on Kris Messersmith's claim for work-related injury and disability benefits following a work accident. Messersmith appealed to the Utah Labor Commission (Commission), and the Commission modified part of the ALJ's decision: the Commission changed the dismissal to one without prejudice, thereby permitting Messersmith to refile his claim. A-1 Septic Tank Services LLC and Auto Owners Insurance Company (collectively, A-1) seek judicial review. Because the Commission effectively eliminated the ALJ's decision on the merits, we set aside the Commission's decision and reinstate the ALJ's disposition of the matter.

BACKGROUND

¶2 A-1 hired Messersmith in 2014 to work as a truck driver, requiring that he clean septic tanks and storm drains as part of his position. In a non-work-related accident sustained on December 25, 2015, Messersmith slipped and landed on his buttocks and was diagnosed as suffering from an "acute right buttock contusion." He obtained a magnetic resonance imaging (MRI) scan that showed he suffered from "early degeneration" and a disc protrusion in the lower back between the last lumbar vertebra and the first sacral segment of the vertebral column (L5-S1).

¶3 Shortly thereafter, Messersmith was diagnosed with a "subacute lumbar contusion," and a physician assistant noted that two of Messersmith's lower vertebrae needed fusion. During a different exam, Messersmith reported to a family nurse practitioner (FNP) that he was in "the worst pain he has ever experienced." Despite the pain, Messersmith took no time off work and continued performing his normal work duties.

¶4 On May 25, 2016, while working and cleaning storm drains, Messersmith pulled on a metal grate weighing "a few hundred pounds," and he felt a "pop" in his low back. He obtained a second MRI on May 31, 2016, which showed a "relatively large" central disc herniation at L5-S1. During an exam, the physician (Doctor 1) noted that Messersmith "was getting by with the pain until [May 25, 2016,] when he reinjured it pulling a storm drain." Doctor 1 performed surgery on August 5, 2016, including discectomy, posterior lumbar fusion, and transforaminal lumbar interbody fusion. Following surgery, Messersmith had several post-operative outpatient medical visits.

¶5 In 2016, Messersmith submitted an application for hearing with the Commission and requested medical benefits, temporary total disability benefits, travel reimbursement, and unpaid interest for the May 25 work-related injury. The Commission processed his application and ordered A-1 to respond to the application for hearing and request for benefits. In its answer to the application, A-1 denied liability for Messersmith's claim and asserted that there was no medical causation between Messersmith's workplace accident and his claimed injuries.

¶6 At A-1's request, Messersmith underwent a separate medical exam (A-1 Exam) in which another physician (Doctor 2) concluded that Messersmith's injuries and his need for surgery were "causally related to the December 25, 2015 injury and not affected" by the May 25 work-related accident. Doctor 2 further concluded that the May 25 accident likely did not cause a permanent or temporary aggravation of Messersmith's preexisting back condition. Relying on the A-1 Exam report, A-1 continued to deny liability.

¶7 The ALJ held a hearing and thereafter determined that there was no "specific record in which a provider opined that [Messersmith's] back issue was medically causally related to the May 25, 2016 industrial accident." Because no medical opinion was admitted that conflicted with Doctor 2's assessment, the ALJ concluded that there was no reason to refer the matter to an impartial medical panel and dismissed Messersmith's claim with prejudice.

¶8 Messersmith petitioned the Commission to review the ALJ's decision, asserting that he had provided sufficient evidence of medical causation and that the Commission should remand the matter to the ALJ with instructions to appoint a medical panel. The Commission agreed with the ALJ that Messersmith had failed to provide evidence of medical causation linking the May 25 accident to his injuries that required surgery. The Commission observed that the medical reports submitted by Messersmith, including those from Doctor 1, "stopped short of opining that Mr. Messersmith's low-back condition was medically causally connected to the [May 25] accident."

¶9 Due to an alleged lack of supporting medical documentation, the Commission determined that Messersmith had failed to meet his initial burden of presenting sufficient supporting documentation of a claim. The Commission observed that "[g]enerally, an application for hearing that is not sufficiently supported by accompanying medical documentation is dismissed prior to an evidentiary hearing." The Commission modified the ALJ's decision; it altered the disposition from a dismissal with prejudice, to a dismissal without prejudice because, in the Commission's view, the ALJ's evidentiary hearing did not "truly [adjudicate] the merits of the claim as there was no medical opinion that actually supported Mr. Messersmith's position."

ISSUE AND STANDARD OF REVIEW

¶10 A-1 seeks judicial review of the Commission's decision. A-1 asks us to set aside the disposition of Messersmith's claim without prejudice and requests that we reinstate the ALJ's decision to dismiss with prejudice. "Whether the Commission applied the correct legal standard in making its determination is ... a question of law, which we review for correctness." A & B Mech. Contractors v. Labor Comm'n , 2013 UT App 230, ¶ 15, 311 P.3d 528.

ANALYSIS

¶11 In Utah, employees who sustain injuries in the course of their employment may be entitled to workers' compensation benefits. Utah Code Ann. § 34A-2-401(1) (LexisNexis 2015). For an employee to receive compensation for an industrial accident, the employee must demonstrate that the injury (1) occurred by accident, and (2) arose "out of and in the course of the employee's employment." Id. ; see also Hutchings v. Labor Comm'n , 2016 UT App 160, ¶ 16, 378 P.3d 1273. The parties here only dispute whether Messersmith's injury arose out of his employment. To show that an injury arose out of his employment, "[t]he claimant must show that the work exertion was both the legal cause and the medical cause of the injury or disability." Hutchings , 2016 UT App 160, ¶ 16, 378 P.3d 1273. Because the parties do not dispute legal causation, we focus our analysis on medical causation.

¶12 "The purpose of the medical causation requirement is to ensure that there is a medically demonstrable causal link between the legally sufficient work-related exertions and the unexpected injuries that resulted from those strains." Id. ¶ 18 (quotation simplified). "A claimant attempting to show that the work-related exertion aggravated a preexisting condition must prove the subsequent disability is medically the result of an exertion or injury that occurred during a work-related activity, and not solely the result of a pre-existing condition." Id. (quotation simplified).

¶13 Here, the ALJ determined that Doctor 2 offered the only medical causation assessment of Messersmith's work-related exertion and injury. Doctor 2 opined that Messersmith's injury, which required back surgery, was medically causally related to Messersmith's December 25 fall and not affected by his May 25 work-related accident. Without an assessment contradicting Doctor 2, the ALJ concluded that Messersmith had not established medical causation and dismissed Messersmith's claim with prejudice. On review, the Commission affirmed the ALJ's findings and conclusions. But it dismissed Messersmith's claim without prejudice to allow him to refile.

¶14 A-1 challenges the Commission's decision to dismiss Messersmith's claims without prejudice as "endeavoring to give Messersmith a 'do-over' at [A-1]'s expense and to its substantial prejudice." A-1 specifically argues that Messersmith's claim for benefits was adjudicated on the merits at the evidentiary hearing held by the ALJ and that the procedural rule employed by the Commission to allow Messersmith to refile his claim does not excuse him from meeting his burden of proof.

¶15 In response, Messersmith contends that the ALJ and the Commission lacked jurisdiction to hear and decide his claims because each determined that his application did not include "supporting medical documentation." While Messersmith "firmly believes the medical documentation he submitted establishes that his claimed injury (herniation at L5-S1) was caused by (or at least aggravated by) the [May 25 accident]," he agrees with the Commission's assessment that it should have rejected Messersmith's application in its initial review.

¶16 We first address whether Messersmith's claim was adjudicated on the merits by the ALJ. Then we consider the Commission's application of a procedural rule to dismiss Messersmith's claim without prejudice to his refiling of that claim.

I. The ALJ's Decision

¶17 Messersmith requested a hearing before the Commission to consider his claim for work-related injury and disability compensation approximately two months after his May 25 work-related accident. He asserted that the May 25 accident caused his back injuries and necessitated surgery. He attached medical records to his application in support of his claim, including reports from FNP and Doctor 1. Following its initial review of Messersmith's application, the Commission ordered A-1 to answer. A-1 did so, and it denied liability for the alleged work-related injury.

¶18 Messersmith's claim proceeded through discovery, and the ALJ set an evidentiary hearing. The parties stipulated to a continuance to allow A-1 to depose Messersmith and to obtain the A-1 Exam, and allow Messersmith to obtain a medical exam to rebut the A-1 Exam report. Although Messersmith asserts that he asked Doctor 1 to read and respond to Doctor 2's report, Doctor 1 never submitted a rebuttal opinion.

¶19 The ALJ held an evidentiary hearing and considered Messersmith's supporting medical documentation, including the reports of Doctor 1 and FNP. The ALJ determined that Messersmith provided no documents in which "a provider opined that [Messersmith]'s back issue was medically causally related to the [May 25 accident]." The ALJ noted Doctor 1's observation that Messersmith "was getting by with the pain until [May 25, 2016,] when he reinjured [his back] pulling a storm drain," but the ALJ determined that this was merely a medical history note and not a causal assessment or diagnosis. Left only with Doctor 2's uncontroverted opinion, the ALJ concluded that Messersmith had failed to carry his burden of proving medical causation.

¶20 The ALJ's decision resolved Messersmith's application on the merits. " 'On the merits' is a term of art that means that a judgment is rendered only after a court has evaluated the relevant evidence and the parties' substantive arguments." Miller v. USAA Cas. Ins. Co. , 2002 UT 6, ¶ 42 n.6, 44 P.3d 663 (citing Black's Law Dictionary 1117 (7th ed. 1999)). Under the circumstances here, the ALJ considered the evidence submitted by the parties and the arguments offered for and against Messersmith's application and concluded that Messersmith's supporting documentation failed to establish medical causation and, consequently, did not support an award of injury and disability compensation.

II. The Commission's Decision

¶21 On review, the Commission agreed with the ALJ that Messersmith failed to present evidence of medical causation. The Commission observed that Messersmith provided treatment reports from FNP and Doctor 1, and noted those reports "stopped short" of assessing medical causation. The Commission nevertheless modified the ALJ's decision, ordering that Messersmith's application be dismissed without prejudice to refiling. It did so because, in its view, the hearing before the ALJ did not "truly" adjudicate the merits of Messersmith's claim and "this matter should have been dismissed without prejudice prior to a hearing." This was error. Because we have already concluded that the ALJ's decision resolved Messersmith's claim on its merits, we focus our review on the Commission's procedural basis for modifying the ALJ's decision.

¶22 The Utah Administrative Code requires that hearing applications for a claim for disability compensation "include supporting medical documentation of the claim where there is a dispute over medical issues." Utah Admin. Code R602-2-1(B)(3). "Supporting medical documentation" is defined as "Adjudication Form 113 Summary of Medical Record or other medical report or treatment note completed by a physician that indicates the presence or absence of a medical causal connection between benefits sought and the alleged industrial injury or occupational disease." Id. R602-2-1(A)(4).

¶23 Applications submitted without supporting medical documentation "may not be mailed to the employer or insurance carrier for answer." Id. R602-2-1(B)(3); see also id. R602-2-1(B)(4) ("When an Application for Hearing with appropriate supporting documentation is filed with the [Division of Adjudication within the Labor Commission], the Division shall forthwith mail to the respondents a copy of the Application for Hearing, supporting documents and Notice of Formal Adjudication and Order for Answer."). But, if a respondent is ordered to answer an application, it may also "file a motion to dismiss the Application for Hearing where there is no supporting medical documentation filed to demonstrate medical causation when such is at issue between the parties." Id. R602-2-1(B)(3).

¶24 Messersmith attached medical documentation to his application, believing those documents supported his claim. He provided treatment notes from both FNP and Doctor 1 that he alleged indicated "the presence ... of a medical causal connection." Id. R602-2-1(A)(4). In June 2016, FNP noted Messersmith's lower back issues and then explained that Messersmith "subsequently continued to work and while lifting off a huge grate while working on some storm drains, hurt his back [and] ended up in the emergency room." Doctor 1 also noted Messersmith's December 25 accident and back injury, explaining that Messersmith "was getting by with the pain until [May 25, 2016,] when he reinjured it pulling a storm drain." Thus, each medical record submitted by Messersmith suggested that a medical causal connection existed between Messersmith's work-related injury and claimed disability. The ALJ and the Commission each noted FNP and Doctor 1's treatment notes, but disagreed with Messersmith that these notes were sufficient to prove Messersmith's disability was medically the result of his May 25 work-related accident. In other words, Messersmith attached the supporting medical documents necessary to proceed with his application for hearing, but in the end those documents did not prove medical causation.

¶25 Critically, the Utah Administrative Code does not require an applicant to first prove medical causation in medical documentation submitted with a claim before the request may proceed to an order for the respondents to answer. Rather, it requires that an applicant attach to an application for hearing any medical records, medical reports, or treatment notes, completed by a physician, indicating "the presence or absence of a medical causal connection between benefits sought and the alleged industrial injury or occupational disease." Id. In circumstances where the applicant fails to attach supporting medical documentation to the application, the Commission may not mail that application "to the employer or insurance carrier for answer until the appropriate documents have been provided." Id. R602-2-1(B)(3).

¶26 Because Messersmith attached supporting medical documentation to his application for hearing, flawed as it might have been, his claim was sent to A-1 for a response and ultimately adjudicated in an evidentiary hearing. Consequently, the provision of the Utah Administrative Code relied upon by the Commission-authorizing the Commission to prevent further proceedings on an application for hearing "until the appropriate documents have been provided"-simply was not applicable to Messersmith's claim after the evidentiary hearing. See id.

¶27 The ALJ carefully considered all of the evidence and found that Messersmith did not carry his burden of proof; Messersmith's supporting medical documentation did not establish medical causation. This determination did not mean that Messersmith's application should have been dismissed before a hearing. Nor did the insufficient evidence somehow render the evidentiary hearing something less than an adjudication of Messersmith's claim. Accordingly, the Commission erred when, relying on procedural provisions of the Utah Administrative Code, it effectively eliminated the ALJ's decision on the merits by providing an opportunity for Messersmith to refile his work-related injury and disability compensation claim.

CONCLUSION

¶28 After considering all of the evidence and arguments presented by the parties, the ALJ resolved Messersmith's claim for work-related injury and disability benefits on the merits. The Commission erred when, in its review of the ALJ's decision, it modified the disposition to a dismissal without prejudice to Messersmith's refiling of his claim. Accordingly, we set aside the Commission's decision and reinstate the ALJ's disposition of the matter.

      The parties do not dispute legal causation, that is, that Messersmith's May 25 accident was the legal cause of his injuries. See Allen v. Industrial Comm'n , 729 P.2d 15, 25 (Utah 1986) ("To meet the legal causation requirement, a claimant with a preexisting condition must show that the employment contributed something substantial to increase the risk he already faced in everyday life because of his condition."). But they vigorously dispute whether that accident medically caused his injuries and disability due to the presence of a preexisting condition. See id. at 27 (observing that to meet the medical causation standard, a claimant must "prove the disability is medically the result of an exertion or injury that occurred during a work-related activity").

      In his briefing before this court, Messersmith emphatically argues that he proffered sufficient supporting medical documentation with his application for hearing. Indeed, he "firmly believes the medical documentation he submitted establishes" medical causation.

      Messersmith relatedly posits that "if [his] supporting medical documentation did not establish causation between the benefits he sought and his industrial injury-as both the ALJ and the Labor Commissioner concluded that it did not-then Messersmith's Application should have been rejected from the outset, and the Labor Commission lacked jurisdiction to adjudicate it." (Emphasis added.) Whether an applicant ultimately proves causation is a determination made by an administrative law judge following an evidentiary hearing, unless resolved by stipulation of the parties. See, e.g. , Utah Admin. Code R602-2-1(E)(1) ("The administrative law judge may use the stipulated facts, medical records and evidence in the record to make a final determination of liability or refer the matter to a Medical Panel for consideration of the medical issues pursuant to R602-2-2."); see also Helf v. Industrial Comm'n , 901 P.2d 1024, 1027 (Utah Ct. App. 1995) (approving the order of the Industrial Commission where the claimant "failed to establish, by a preponderance of the evidence," medical causation). In other words, this is precisely the determination that the Commission and the ALJ have jurisdiction to make.


source: Caselaw Access Project

author: HAGEN, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Loretta Rae STEELE, Appellant.
    No. 20170855-CA
    Court of Appeals of Utah.
    Filed May 2, 2019
    C. Sue Crismon, Attorney for Appellant
    Simarjit S. Gill and Curtis M. Tuttle, Attorneys for Appellee
    Judge Diana Hagen authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.
    Opinion
   HAGEN, Judge:

¶1 Loretta Rae Steele was convicted of driving under the influence and leaving the scene of an accident. At trial, after the jury had been empaneled, Steele moved to dismiss the case, claiming that the State's failure to preserve a recording of a 911 call made at the time of the accident (the 911 recording) violated her due process rights. The district court denied the motion, concluding that Steele did not establish that she was prejudiced by the destruction of the 911 recording. Steele was ultimately convicted by a jury and now appeals, challenging the denial of her motion to dismiss. We conclude Steele has not made the necessary threshold showing of a reasonable probability that the 911 recording contained exculpatory evidence. Accordingly, we affirm.

BACKGROUND

¶2 At around 9:00 p.m. on the night of the accident, a woman (the eyewitness) was about to enter her apartment building when she heard a vehicle crash into a parked car. The eyewitness walked toward the SUV that caused the crash and asked if anyone needed medical assistance. The driver, a woman, got partway out of the SUV to inspect the damage, allowing the eyewitness to see the driver "from her waist up." The driver "demanded" the eyewitness help her separate the vehicles. The eyewitness refused. The eyewitness asked again if anyone needed medical assistance, but the driver merely repeated her demand for help separating the vehicles. The eyewitness ignored the request and called 911.

¶3 While the eyewitness called 911, the SUV's three passengers-a man, a woman, and a child-got out and walked away from the scene. The eyewitness was certain that at least one of the passengers exited from the passenger side of the SUV, but she was not certain if all passengers had exited from that side. The driver stayed behind and attempted to start the SUV and separate the vehicles by herself. When her attempts failed, the driver walked away in the same direction as the passengers who had already left.

¶4 While the eyewitness was on the phone with 911 dispatch, she kept an eye on the SUV and all of its occupants. Within five minutes of the 911 call, an officer arrived at the scene. The eyewitness told the responding officer that the driver of the SUV was a Native American woman, was wearing a black-and-white-striped shirt, appeared intoxicated, and left on foot.

¶5 The responding officer and his police dog have special training in tracking people fleeing on foot. After the officer had his dog smell around the SUV and inside the driver's side of the passenger compartment, the dog tracked the scent and led the officer to a woman who was wearing a black-and-white-striped shirt and otherwise matched the eyewitness's description. The woman identified herself as Loretta Steele.

¶6 The officer walked Steele back to the scene of the accident and noticed she "[had] a hard time walking," her speech was "slurred," and she had "glassy, glazed eyes." Still at the scene, the eyewitness confirmed to the officer that Steele was the driver of the SUV. During the search incident to the arrest, the officer found the keys to the SUV in Steele's possession. The passengers were not located.

¶7 The State charged Steele with driving under the influence and leaving the scene of an accident involving property damage. Almost two years later, the case went to a jury trial. After the jury had been empaneled, defense counsel moved to dismiss the case based on an alleged due process violation that resulted from the State's failure to preserve the 911 recording of the eyewitness's call to dispatch. Defense counsel explained that she had discovered only the week before that the 911 recording requested during discovery had yet to be disclosed. Two days before trial, she was informed that the recording was destroyed in accordance with the standard one-year record retention policy for recordings of 911 calls. The day before trial, the State sent defense counsel a computer-aided dispatch report (the report) made by the dispatcher who answered the eyewitness's call. In the report, there was no description of the SUV's occupants, other than noting the gender of the adults and the presence of a child. The report also provided the time the eyewitness called dispatch and the time the responding officer arrived on the scene, which was within five minutes of the call being placed.

¶8 Given the destruction of the recording, the State and defense counsel agreed not to question the eyewitness about what she told dispatch when she called 911. The parties had informed the district court of the stipulation before jury selection, and the court had already entered an order in limine excluding that evidence. In making her oral motion to dismiss after the jury was empaneled, defense counsel explained that she was experiencing "angst about [her] stipulation." On reconsideration, she believed dismissal was a more appropriate remedy and wished to withdraw the stipulation.

¶9 Defense counsel asserted that the 911 recording was exculpatory because it "allegedly contained a description of the driver ... [and we] don't know if that description actually conformed with [Steele's appearance] or not." Defense counsel argued that, under State v. Tiedemann , 2007 UT 49, 162 P.3d 1106, there was a reasonable likelihood that the 911 recording contained exculpatory evidence; that the State was culpable in failing to preserve it; and that, without it, Steele could not present her defense.

¶10 The court denied Steele's request to withdraw the stipulation. In light of the arguments presented, the report, and the parties' stipulation to avoid asking the eyewitness about the details she might or might not have provided to dispatch, the district court denied Steele's motion to dismiss, focusing largely on the lack of prejudice. It explained that "if [the eyewitness] gave a description to the [911] operator, and we don't know if she did or not, ... the officer shows up just a matter of minutes later and she gives a description again. It would seem ... to be unlikely that a different description is given." The court also explained that the eyewitness, who would testify at trial, gave the officer a description of what she saw and there "appear[ed] to be no reason why that eyewitness ... would say something different to a [911] dispatcher one minute and a few minutes later would say something different to a police officer."

¶11 At trial, defense counsel's opening statement suggested to the jury that the other female occupant of the SUV was actually the driver, not Steele. As trial progressed, defense counsel developed this theory. She first attempted to discredit the eyewitness's identification of Steele on cross-examination by asking the eyewitness numerous times to provide descriptions of the other SUV passengers, but the eyewitness could not provide anything other than their race, gender, and that there was a child present. Defense counsel further sought to discredit the eyewitness's identification of Steele by providing testimony from an eyewitness identification expert. The expert testified to the stages of memory; how memory can be affected by distractions, stressors, and the suggestibility of "show ups" ; and the phenomenon of "change blindness." But the jury rejected the defense's theory and convicted Steele of both charges.

¶12 Steele appeals the denial of her motion to dismiss.

ISSUE AND STANDARDS OF REVIEW

¶13 Steele contends the district court erroneously denied her motion to dismiss, arguing that her right to a fair trial was violated because the State destroyed exculpatory evidence. Steele's contention presents a mixed question of law and fact. State v. Mohamud , 2017 UT 23, ¶ 10, 395 P.3d 133. "Whether the State's destruction of potentially exculpatory evidence violates due process is a question of law that we review for correctness, though we incorporate a clearly erroneous standard for the necessary subsidiary factual determinations." State v. DeJesus , 2017 UT 22, ¶ 18, 395 P.3d 111 (quotation simplified).

ANALYSIS

¶14 Steele asserts that the 911 recording "likely recorded [the] eyewitness's first description of the driver," which she contends might have been different from the description given to the officer when he arrived on the scene. Because such evidence might have been exculpatory, she argues that the State's failure to preserve that recording "violated [her] due process right to a fundamentally fair trial."

¶15 To determine whether "the State's destruction of potentially exculpatory evidence violates due process," the Utah Supreme Court has established a threshold requirement that is followed by a balancing test. State v. DeJesus , 2017 UT 22, ¶¶ 18, 27, 395 P.3d 111. First, under State v. Tiedemann , 2007 UT 49, 162 P.3d 1106, "the defendant must demonstrate a reasonable probability that the lost evidence would have been exculpatory." DeJesus , 2017 UT 22, ¶ 27, 395 P.3d 111 ; see also Tiedemann , 2007 UT 49, ¶ 44, 162 P.3d 1106. This threshold showing "will be met so long as the defendant's proffer as to what the lost [or destroyed] evidence would have shown is not pure speculation or wholly incredible." State v. Mohamud , 2017 UT 23, ¶ 20, 395 P.3d 133 (quotation simplified). Once this threshold has been satisfied, the district court must "determine the seriousness of the due process violation and fashion the appropriate remedy" by balancing both: "(1) the culpability of the State in the loss or destruction of the evidence and (2) the prejudice to the defendant as a result of the missing evidence." Id. ¶ 18.

¶16 The district court's determination that Steele could not establish prejudice appears to assume, without deciding, that Steele could meet the threshold requirement by demonstrating a reasonable probability that the 911 recording would have been exculpatory. On appeal from the denial of a motion to dismiss, we may affirm on any basis apparent in the record. See Bailey v. Bayles , 2002 UT 58, ¶ 10, 52 P.3d 1158 (explaining that we "may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record" even if "such ground or theory ... was not considered or passed on by the lower court" (quotation simplified)). We conclude Steele has not satisfied the threshold requirement and therefore do not address whether the court correctly balanced the culpability of the State in the destruction of the evidence against the prejudice to Steele.

¶17 In DeJesus , the Utah Supreme Court clarified "what constitutes a reasonable probability for purposes of a defendant's due process right to exculpatory evidence." 2017 UT 22, ¶ 39, 395 P.3d 111. The court explained that "a reasonable probability standard defies a precise definition or quantifiable value" and "though it is more than a mere possibility, it falls substantially short of the more probable than not standard." Id. (quotation simplified). Ultimately, the defendant must establish "a probability sufficient to undermine confidence in the outcome" of the case. Id. (quotation simplified). In applying that standard to the defendant's case in DeJesus , the court concluded that the defendant had satisfied the threshold showing of a reasonable probability that the destroyed evidence would have been exculpatory. Id. ¶ 41.

¶18 In DeJesus , the defendant was charged with assaulting a correctional officer after an altercation broke out between the defendant and another inmate in a prison cell. Id. ¶¶ 4-5. The correctional officer intervened in the altercation and after he pushed the defendant to the ground, the defendant kicked the officer twice, "once in the abdomen and once in the thigh." Id. ¶ 4. The prison had a video recording of the altercation and assault, but the video was destroyed before the investigating officer could review it and before it could be turned over to the defense. Id. ¶¶ 4-6. The defendant moved to dismiss the assault charge under Tiedemann , "claiming that the loss or destruction of the [video recording] constituted a due process violation" because the video recording would have shown that "if she kicked [the officer], she did so unintentionally, merely seeking to defend herself from" the other inmate. Id. ¶ 9.

¶19 At the evidentiary hearing on the motion to dismiss, the defendant provided testimony from her fiancée, a fellow inmate, who explained that the defendant, the officer, and the other inmate were all on the ground at the time of the assault and that the other inmate remained on the officer's back while the defendant kicked at her, striking the officer by accident. Id. ¶¶ 12, 41. The court determined the fiancée was not credible because she was biased. Id. ¶ 14. The State elicited testimony from the officer, who at first said that the inmate fighting with the defendant was six feet behind him when the defendant kicked him, but on cross-examination the officer said the other inmate "was on his back." Id. ¶ 11 (quotation simplified). The officer attempted to clarify that he "did not know precisely where" the other inmate was standing but after he had reviewed the video recording-prior to its destruction-"he could see that [the other inmate] was standing four to six feet behind him." Id. ¶¶ 5, 11 (quotation simplified). The district court denied the defendant's motion to dismiss, and the defendant appealed. Id. ¶ 17.

¶20 On appeal, our supreme court determined that the testimony of the defendant's fiancée that contradicted the "arguably inconsistent testimony of" the officer was "sufficient to establish a reasonable probability that the lost [video recording] would have been exculpatory." Id. ¶ 44. The court explained that the testimony of the fiancée and the officer, when taken together, "provide[d] a reasonably probable explanation of both what the lost evidence might have shown and how that evidence could have benefitted [the defendant]." Id. Under these facts, the court concluded that the threshold showing was satisfied.

¶21 By contrast, in State v. Mohamud , 2017 UT 23, 395 P.3d 133, an opinion issued the same day as DeJesus , our supreme court held that another defendant challenging the destruction of a prison video recording had not satisfied the threshold showing. In Mohamud , the defendant "was charged with one count of possessing a prohibited item in a correctional facility" after a correctional officer discovered a shank on the defendant's person while transporting the defendant from one cell to another. Id. ¶¶ 2-5. The defendant "submitted a discovery request seeking all video recordings of the event" and learned that the surveillance video, if one existed, had been destroyed before the charges were filed, pursuant to the facility's thirty-day retention policy. Id. ¶¶ 4-5.

¶22 The defendant moved to dismiss, arguing that "a video recording of the incident would have been exculpatory because it could have impeached the testimony of the officers, though he provided no further details as to what specific testimony would have been impeached." Id. ¶ 6. The only evidence before the district court regarding what the surveillance video could or would have contained came from the investigating officer who testified that the surveillance cameras "generally record and are on" and "they possibly could have recorded the incident, [but] he did not know if those cameras were actually recording that day, he never viewed any recordings for [the date in question], and he had no knowledge whether or not there was an actual recording made." Id. ¶ 7 (quotation simplified). The district court found "that there [was] not even evidence that there was a videotape. There may have been a videotape. There is no evidence the cameras were on or [whether] they were off at the time, nothing to indicate what the camera would have [recorded]." Id. ¶ 8 (quotation simplified). The district court denied the motion to dismiss, and the defendant appealed. Id. ¶¶ 8-9.

¶23 On appeal, the Utah Supreme Court held that the district court correctly denied the motion to dismiss, concluding that the defendant did not satisfy the threshold showing under Tiedemann that there was a reasonable probability that the surveillance video would have contained exculpatory evidence. Mohamud , 2017 UT 23, ¶ 19, 395 P.3d 133. Even assuming "that the alleged video footage both existed and captured the incident at issue," the court held that the defendant did not establish a "reasonable probability that it would have been exculpatory." Id. Instead, the defendant "proffered only speculation as to what the footage might have shown." Id. The defendant stated that the "video evidence would have contradicted, discredited or called the correctional officers' memory into question in some way," but he "provide[d] no description, testimony, or other evidence establishing what the video would have shown and how that would have impeached the officers' testimony." Id. ¶ 22 (quotation simplified). While "[i]t is certainly true that a video recording of the incident would have been highly probative of what truly happened," the court explained that "simply stating that video recordings can be helpful to determine truth does not establish that this particular video recording would have been helpful to [the defendant] in the specific circumstances of his case." Id. ¶ 21.

¶24 The court explained that the defendant could have made a threshold showing that the destroyed evidence had a reasonable probability of being exculpatory "by offering the testimony of other inmates who witnessed the event" or he "could have testified on his own behalf as to what the video would have shown, which would not have waived his Fifth Amendment right against self-incrimination." Id. ¶ 23. But "a defendant cannot rest on the claim that the evidence could have undermined confidence in a witness's testimony in some possible way, but must instead make some proffer as to what testimony would have been contradicted and how such a contradiction would have aided the defendant." Id. ¶ 22. "Although the showing required of defendants is low, there must be something more than speculation about how the evidence could conceivably be exculpatory," and the defendant offered only "speculation about potential impeachment." Id. ¶ 24.

¶25 Like the defendant in Mohamud , Steele has not satisfied the threshold requirement under Tiedemann of showing a reasonable probability that the 911 recording would have contained exculpatory evidence. Steele did not provide any evidence that the eyewitness gave a description of the driver to dispatch when she called 911, much less that the description would contradict the eyewitness's testimony. Instead, she claims only that the 911 recording "very well may include" details about the other female passenger. The only evidence to support this assertion was the officer's statement that dispatch usually asks callers for a description of the suspects. Just as in Mohamud , where the investigator explained that cameras at the facility "generally record and are on" but could not say whether "those cameras were actually recording that day" or whether they would have recorded the incident, see 2017 UT 23, ¶ 7, 395 P.3d 133 (quotation simplified), whether the eyewitness gave dispatch a description of the driver in this case is purely speculative. Indeed, the only evidence as to what occurred during this particular call suggests that no such description was given. The dispatch notes contained no description of the SUV's occupants other than the gender of the adults and the presence of a child. Moreover, at trial, the officer never testified that he was given a description of the SUV's occupants from dispatch; he recounted only the description of the driver he received from the eyewitness when he arrived on scene.

¶26 Significantly, in arguing her motion to dismiss, Steele never asked to present any evidence outside the presence of the jury as to whether the eyewitness gave a description to dispatch that would have been captured on the recording. Unlike the defendant in DeJesus , who elicited testimony from eyewitnesses about what the video recording would show, 2017 UT 22, ¶ 45, 395 P.3d 111, Steele never asked to present testimony from the eyewitness or other witnesses who could have testified as to what description, if any, the eyewitness gave to dispatch during the 911 call. Nor did Steele offer her own testimony or that of the other occupants of the SUV to support the idea that the eyewitness might have confused her with the other female occupant, such as evidence that their clothing was similar or that Steele switched places with the driver after the eyewitness called 911. Thus, even if we were to assume that the eyewitness described the driver to dispatch, we must further assume that the description given to dispatch was inconsistent with the eyewitness's testimony at trial in order to conclude that there is a reasonable probability that the recording was exculpatory. There is no actual evidence in this case to support either assumption.

¶27 We note that any lost or destroyed evidence-including the evidence here-has the potential to contain exculpatory evidence. Although the threshold reasonable probability standard presents a low bar, a defendant must provide "more than speculation," Mohamud , 2017 UT 23, ¶ 20, 395 P.3d 133 (quotation simplified), and present some evidence that would explain "both what the lost evidence might have shown and how that evidence could have benefitted [the defendant]," DeJesus , 2017 UT 22, ¶¶ 39, 44, 395 P.3d 111. Here, Steele has not established a reasonable probability that the 911 recording included a description of the driver, much less one that would have assisted her in impeaching the eyewitness's testimony at trial.

CONCLUSION

¶28 Because Steele did not demonstrate a reasonable probability that the lost evidence would have been exculpatory, we affirm the district court's denial of her motion to dismiss.

      At trial, defense counsel stipulated that Steele was intoxicated.

      A "show up" is when an eyewitness identifies a suspect in a "single-suspect showup rather than a multi-suspect lineup." See State v. King , 2017 UT App 43, ¶ 28 n.4, 392 P.3d 997.

      "Change blindness" is an individual's "failure to notice even substantial changes in objects or scenes[ ] when [his or her] attention is otherwise engaged." Jennifer K. Robbennolt, Apologies and Reasonableness: Some Implications of Psychology for Torts , 59 DePaul L. Rev. 489, 504 (2010).

      At oral argument on appeal, Steele argued that even "the absence of a description" on the 911 recording could be exculpatory. Steele has not explained how the absence of a description of Steele and the other female passenger supports the defense's theory that the 911 recording contained exculpatory evidence of misidentification.

      The court's order accepting the parties' stipulation to refrain from asking the eyewitness such questions at trial would not have precluded the admission of that evidence outside the presence of the jury in support of the motion to dismiss.

      In doing so, Steele "would not have waived [her] Fifth Amendment right against self-incrimination." State v. Mohamud , 2017 UT 23, ¶ 23, 395 P.3d 133.


author: Appleby, Judge:

text:
    Jodie K. LEVITT, Appellant, v. IASIS HEALTHCARE HOLDINGS INC., Salt Lake Regional Medical Center LP, Alan Davis, and Wanda Updike, Appellees.
    No. 20180260-CA
    Court of Appeals of Utah.
    Filed May 2, 2019
    Cecil R. Hedger, Midvale, and John Robinson Jr., Salt Lake City, Attorneys for Appellant
    Jonathan A. Dibble, Elaina M. Maragakis, and Erin M. Adams, Salt Lake City, Attorneys for Appellees
    Judge Kate Appleby authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.
    Opinion
   Appleby, Judge:

¶ 1 Jodie K. Levitt is a neurosurgeon with a medical staff appointment and privileges at Salt Lake Regional Medical Center (SLRMC). After Levitt's privileges at SLRMC were temporarily suspended, she sued Salt Lake Regional Medical Center LP, Iasis Healthcare Holdings Inc., Alan Davis, and Wanda Updike (collectively, Defendants). Following discovery, the district court entered summary judgment in favor of Defendants. Specifically, the court concluded that Utah's statutory care review immunity protects them from Levitt's lawsuit absent a showing of bad faith or malice and concluded that Levitt had failed to produce evidence of bad faith or malice. Levitt appeals, arguing that summary judgment was inappropriate because there were genuine disputes of material fact as to whether Defendants acted in good faith and without malice. We affirm.

BACKGROUND

¶ 2 In 2011, Levitt applied for a two-year renewal of her medical staff appointment and privileges at SLRMC. Around December 29, 2011, she received a letter dated November 23, 2011, (the November 23 Letter) from SLRMC's chief executive officer (CEO)

granting her a "six-month conditional reappointment." The November 23 Letter explained that Levitt's reappointment was "conditional" because she had "several peer reviews pending." That is, SLRMC had asked independent "neurosurgeons with fellowships in spinal surgery" to review several of Levitt's medical cases that SLRMC thought were potentially problematic.

¶ 3 After receiving the November 23 Letter, Levitt requested further information about why her reinstatement was conditional. Various SLRMC representatives "informed her that [they] could not talk with her about her cases that were being peer reviewed." These individuals generally denied Levitt's requests for information because they believed it was "a requirement to protect the peer review privilege." On two occasions, however, SLRMC provided Levitt with a list of her cases that had been sent for peer review.

¶ 4 Around February 10, 2012, Levitt received a letter dated January 30, 2012 (the January 30 Letter) from SLRMC's Credentials Committee informing her that the Committee had reviewed six of her peer reviewed cases as well as "two other recent occurrences that [were] pending review." The January 30 Letter identified two issues of concern from Levitt's cases. First, several of her patients had experienced "CSF leaks." To address this, the Committee requested that Levitt submit "a written protocol for handling CSF leaks in the future." Second, Levitt had performed "three wrong-site surgeries." The letter said that wrong-site surgeries "are serious events and if another wrong-site occurrence happens, the Committee [would] discuss further action which could include termination of privileges." To address this issue, the Committee requested that Levitt submit "a written protocol as to how [she would] establish confirmation of correct site surgery in the operating room." The January 30 Letter informed Levitt that if she submitted the requested written protocols by March 1, 2012, she would receive "a three-month conditional reappointment." But it noted that the Credentials Committee would continue to review her cases "in a concurrent fashion."

¶ 5 On February 14, 2012, Levitt submitted the requested written protocols. That same day, CEO, Davis, and Updike met with Levitt to discuss their concerns about a recent incident that "required immediate action." During the meeting, CEO, Davis, and Updike issued a twenty-eight day suspension of Levitt's surgical and medical privileges.

¶ 6 The following day, SLRMC sent Levitt a letter summarizing the suspension "per the [February 14] meeting." It said the suspension would last "at least 14 days," but that Levitt's privileges would be reinstated if she completed certain "criteria," including a "proctorship." That is, Levitt was to submit a plan for proctoring by a neurosurgeon of "one lumbar case," "one cervical case," and "four other cases to be proposed by [Levitt] and approved by the Chief of Staff that would pertain to the areas of clinical or procedural concern as discussed with [Levitt] in the meeting."

¶ 7 Levitt requested a hearing on her temporary suspension. Davis responded by email and informed her that a hearing would "not be done on an emergent basis." Instead, he told Levitt that she needed to request a hearing "within the 30-day window described in [the] bylaws," and it "would be scheduled for some time in the future." The email also said that, if Levitt completed her six proctored cases during the twenty-eight day suspension, she would "not be reported to the National Practitioner Data Bank [ (the NPDB) ] as having been suspended." Davis cautioned her that "proceeding with the hearing process would probably postpone a decision on her privileges beyond 30 days, which would then make her summary suspension reportable." Levitt did not respond to Davis's email or make any further request for a hearing. Instead, she "successfully completed the proctorship," and her medical staff appointment and privileges were reinstated.

¶ 8 In 2016, Levitt sued Defendants for breach of contract, breach of the implied covenant of good faith and fair dealing, tortious interference with economic relations, and civil conspiracy. She alleged that Defendants' actions against her "were taken to accomplish the objective of destroying [her] reputation and of the wrongful goal of terminating [her] active staff membership at SLRMC and removing her from the hospital and marketplace."

¶ 9 After discovery, Defendants filed a motion for summary judgment. They asserted that they were immune from Levitt's claims under Utah's Health Care Providers Immunity from Liability Act, which protects health care providers from liability regarding decisions made about physician licensing and care review absent "clear and convincing evidence" of "bad faith" or "malice." (Citing Utah Code section 58-13-4.) And they argued that "the undisputed evidence show[ed] that [their] primary and sole purpose was to restrict incompetent behavior and protect patients."

¶ 10 In her opposition to the motion for summary judgment, Levitt argued that there were genuine disputes of fact regarding whether Defendants acted in bad faith and with malice. To support her argument, she asserted that she was suspended "without prior notice" or "any explanation as to the reason," that she was denied a fair hearing under the medical staff bylaws, and that she was "forced to perform [the proctorship] within an arbitrarily restricted time frame in order to mitigate the damage done ... to her professional reputation."

¶ 11 The district court granted Defendants' motion for summary judgment, concluding that they were "immune from [Levitt's] claims." Specifically, the court determined there was "no evidence that [Defendants] acted from any motive other than healthcare quality improvement and concern for patient care." Thus, Levitt "failed to rebut the presumption of good faith and lack of malice under Utah Code Ann. § 58-13-4."

¶ 12 Levitt appeals.

ISSUE AND STANDARD OF REVIEW

¶ 13 Levitt argues that the district court erred in granting summary judgment in favor of Defendants because "there were genuine disputed issues of material fact." Specifically, she asserts that, based on the evidence presented, "a reasonable jury could decide that there was clear and convincing evidence of [SLRMC's] bad faith and malice."

¶ 14 We review a district court's decision to grant summary judgment "for correctness, viewing the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Nelson v. Target Corp. , 2014 UT App 205, ¶ 11, 334 P.3d 1010 (quotation simplified). Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). "In assessing whether [a party] has made a sufficient showing to withstand summary judgment, we take into account the substantive evidentiary standard of proof that would apply at a trial on the merits ...." Christiansen v. Union Pac. R.R. , 2006 UT App 180, ¶ 6, 136 P.3d 1266 (quotation simplified). We will reverse a district court's decision to grant summary judgment "if we conclude that a fair-minded jury could return a verdict for [the non-moving party] on the evidence presented." Id. (quotation simplified).

ANALYSIS

¶ 15 Under Utah Code section 58-13-4, health care providers serving in certain capacities, and the organizations or entities sponsoring them, are entitled to qualified immunity. Utah Code Ann. § 58-13-4(2) (LexisNexis 2016). For example, while "serving on committees ... established to evaluate and improve the quality of health care," id. § 58-13-4(2)(a)(ii), health care providers "are immune from liability with respect to deliberations, decisions, or determinations made ... in good faith and without malice ," id. § 58-13-4(2) (emphasis added). Further, "[h]ealth care providers serving on committees ... described in [ section 58-13-4 ] are presumed to have acted in good faith and without malice, absent clear and convincing evidence to the contrary." Id. § 58-13-4(4) (emphasis added).

¶ 16 Levitt acknowledges that Defendants are entitled to a presumption of immunity under Utah Code section 58-13-4. And she attempts to rebut that presumption by arguing there is clear and convincing evidence of their bad faith and malice. Specifically, Levitt asserts that sufficient "bad faith [and malice] can be inferred from the totality of the circumstances regarding the conduct of the Defendants toward her." As discussed below, we conclude that Levitt has failed to produce sufficient evidence of bad faith and malice, and that Defendants are therefore immune from her claims as a matter of law. See id. ; see also Andalex Res., Inc. v. Myers , 871 P.2d 1041, 1047 (Utah Ct. App. 1994) (explaining that "a party must prove a claim with clear and convincing evidence at the summary judgment stage if that is the burden required at trial").

¶ 17 Levitt makes various arguments attempting to show Defendants' bad faith or malice. We discuss each in turn.

¶ 18 First, she asserts that Defendants "refused to provide [her] with the reasons for [their] decisions ... and refused to provide any justification for such refusal." She argues that a jury could infer bad faith from this "conspiracy of silence." We reject this argument because the record does not support it. The undisputed evidence shows that Defendants informed Levitt of the reasons supporting each of their decisions and actions. For example, the November 23 Letter said that Levitt's six-month reinstatement was "conditional" because several of her cases had been sent for peer review. The January 30 Letter explained further that Levitt's peer reviewed cases revealed "several CSF leaks" as well as "three wrong-site surgeries." Levitt even acknowledges that, on two occasions, Defendants provided her with lists of her potentially problematic cases that had been sent for peer review. And CEO, Davis, and Updike each testified in sworn declarations that, prior to issuing Levitt's temporary suspension, they discussed with her the issues from her peer reviewed cases as well as a more recent incident that "required immediate action."

¶ 19 Granted, Defendants acknowledge that, on occasion, they "informed [Levitt] that [they] could not talk with her about her cases that were being peer reviewed." But this fact, without more, does not support an inference of bad faith or malice. See Everett v. St. Ansgar Hosp. , 974 F.2d 77, 80 (8th Cir. 1992) (declining to adopt the plaintiff's argument "that because the third-party review was conducted in secret, without his input as to who the reviewers should be, there is a necessary inference of malice"). Defendants presented undisputed evidence that "the lack of response to Levitt's inquiries for peer review information was to protect the peer review privilege."

¶ 20 On appeal, Levitt claims the peer review privilege "is a post hoc justification, not the reason for [Defendants'] secrecy." The problem with this theory is that Levitt has produced no evidence of an ulterior motive.

Instead, she simply alleges that the "conspiracy of silence" was intended "to vex and frustrate [her] professional aspirations and damage [her] professional reputation." Such "bare allegations" are insufficient to support a reasonable inference of bad faith or malice. See Nelson v. Target Corp. , 2014 UT App 205, ¶ 25, 334 P.3d 1010. "[A] plaintiff cannot avoid summary judgment based on doubtful, vague, speculative or inconclusive evidence." Id. (quotation simplified).

¶ 21 Levitt also identifies "missteps" in communication, asserting that "Defendants made adverse decisions concerning [her] hospital privileges and repeatedly delayed sending notice of these decisions." That is, Levitt argues she "is entitled to an inference of bad faith" because she did not receive the November 23 Letter until late December and she received the January 30 Letter around February 10. These "delays in communication" lend little support to Levitt's position. As Defendants note on appeal, "there is no evidence in the record showing the reason for these delays." Instead, Levitt simply asserts that Defendants delayed notifying her of their decisions as part of the alleged "conspiracy" against her. This argument is speculative at best, and we are not convinced that it supports even an inference of bad faith or malice. See Kranendonk v. Gregory & Swapp, PLLC , 2014 UT App 36, ¶ 15, 320 P.3d 689 ("A reasonable inference exists when there is at least a foundation in the evidence upon which the ultimate conclusion is based ...." (quotation simplified)). But even granting Levitt every favorable inference, any "delayed communication" does little to help Levitt meet her burden of establishing bad faith and malice by clear and convincing evidence.

¶ 22 Next, Levitt argues that a jury could infer bad faith from the "outright denial of her request for the fair hearing required in the bylaws." Again, the record does not support this argument. The evidence shows that, after Levitt was suspended, she requested an immediate hearing. In response, Davis informed her by email that a hearing "would not be done on an emergent basis." He explained that Levitt had "to request a fair hearing ... within the 30-day window described in the bylaws," which would "be scheduled for some time in the future." It is undisputed that Levitt did not respond to Davis's email or make any further request for a hearing. Instead, she proceeded to "successfully complete the proctorship," which allowed her to regain her privileges at SLRMC and avoid having her suspension reported to the NPDB. Thus, the evidence seems to show that Levitt decided against a hearing, and we see no support for her allegation that her request for a hearing "was summarily, and maliciously denied by [Davis]."

¶ 23 Finally, we reject as unsupported by the evidence Levitt's argument that Defendants "maliciously" and "wrongfully" issued the conditional reappointment and the temporary suspension. The November 23 Letter shows that Levitt's reappointment was "conditional" because several of her cases had been sent for peer review. The January 30 Letter shows that those peer reviewed cases revealed "several CSF leaks" as well as "three wrong-site surgeries." Further, the undisputed evidence shows that Levitt's temporary suspension resulted from yet another incident that "required immediate action." And the proctorship requirement was designed to address "the areas of clinical and procedural concern" that Defendants had identified and discussed with Levitt. Given this uncontroverted evidence, the only reasonable conclusion is that Defendants acted for the purpose of improving the quality of healthcare at SLRMC.

¶ 24 In short, no "fair minded jury," Christiansen v. Union Pac. R.R. , 2006 UT App 180, ¶ 6, 136 P.3d 1266 (quotation simplified), could conclude there is "clear and convincing evidence" that Defendants acted in bad faith or with malice, Utah Code Ann. § 58-13-4(4) (LexisNexis 2016). Accordingly, under Utah Code section 58-13-4, Defendants are immune from Levitt's claims.

CONCLUSION

¶ 25 The district court did not err in entering summary judgment in favor of Defendants. Under Utah Code section 58-13-4, Defendants are immune from Levitt's claims because Levitt failed to produce sufficient evidence of bad faith or malice. We affirm.

      "Because this matter was decided on summary judgment, we recite the facts and inferences in the light most favorable to the nonmoving party," Bahnmaier v. Northern Utah Healthcare Corp. , 2017 UT App 105, ¶ 2 n.1, 402 P.3d 796 (quotation simplified), which in this case is Levitt.

      "CSF" means cerebrospinal fluid, which is "a watery fluid that circulates through the brain's ventricles (cavities or hollow spaces) and around the surface of the brain and spinal cord." Cerebrospinal Fluid (CSF) Leak, What is a cerebrospinal fluid (CSF) leak? , Johns Hopkins Medicine, https://www.hopkinsmedicine.org/neurology_neurosurgery/centers_clinics/brain_tumor/center/skull-base/types/csf-leak.html [https://perma.cc/YAC5-RJLE]. "A CSF leak is a condition that occurs when the CSF leaks through a defect in the dura or the skull and out through the nose or ear." Id.

      Wrong-site surgeries are "operations conducted on a different organ or body part than intended by the surgeon and patient." Peter J. Pronovost & Bryan Sexton, Rx for Wrong-Site Surgery: Two Minutes of Conversation , Johns Hopkins Medicine, https://www.hopkinsmedicine.org/news/media/releases/rx_for_wrong_site_surgery_two_minutes_of_conversation [https://perma.cc/WR2D-CKK2].

      At this time, Davis was the chair of SLRMC's Medical Executive Committee and Updike was a member of that committee.

      The NPDB "is a web-based repository of reports ... that prevents practitioners from moving state to state without disclosure or discovery of previous damaging performance." About Us , National Practitioner Data Bank, https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp [https://perma.cc/94DY-6GJT].

      Levitt's reply brief argues that the district court erred when it determined that certain documents were privileged and therefore not subject to discovery. Because Levitt did not raise this issue in her opening brief, we do not consider it on appeal. See Brown v. Glover , 2000 UT 89, ¶ 23, 16 P.3d 540 ("Generally, 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.").