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Taylor v. University of Utah

Court of Appeals of Utah

January 17, 2019

Richard Taylor and Deanne Taylor, Appellants,
v.
University of Utah, University Hospital, and University of Utah Physical Medicine and Rehabilitation Clinic, Appellees.

          Third District Court, Salt Lake Department The Honorable Robert P. Faust No. 140903769

          James W. McConkie, Bradley H. Parker, and W. Alexander Evans, Attorneys for Appellants

          Curtis J. Drake and Parker A. Allred, Attorneys for Appellees

          Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.

          HAGEN, JUDGE

         ¶1 Richard Taylor and Deanne Taylor (the Taylors) appeal the district court's decision to exclude the testimony of their causation expert in this medical malpractice case. The district court ruled that the Taylors had not made a threshold showing of reliability because the expert testimony was based on insufficient facts and data. Because neither the expert's experience nor the relevant medical literature provided a sufficient factual basis to support the expert's conclusion about causation, we affirm.

         BACKGROUND

         ¶2 The Taylors' daughter (the patient) was diagnosed at a young age with a neurological disorder for which part of her treatment was to receive intrathecal baclofen, a drug administered by a catheter and pumped into the thecal sac located around the spinal cord. In 2013, a neurosurgeon replaced the patient's pump, but not the catheter connected to the pump.

         ¶3 About one month later, the patient experienced increased spasticity in her legs, which can be a side effect of baclofen withdrawal. The patient received an oral dose of baclofen in an attempt to reduce the spasticity. A physician reassessed the patient a few hours later, determined that there had been no change of symptoms, and continued the oral dosages of baclofen. The patient also underwent an x-ray examination, which did not show any obvious problems with the pump or catheter. The physician instructed the patient to return the following day for further evaluation.

         ¶4 On April 18, 2013, the patient "underwent a dye and rotator study of the pump and catheter," but the study showed no obvious signs of a problem. Nevertheless, the physician "thought an undetected problem with the pump and catheter might still be possible." At the same time, the patient had difficulty keeping down the oral doses of baclofen due to vomiting. After discussing the patient's medical history and symptoms with the neurosurgeon, the physician recommended that the patient undergo surgery to replace both the pump and catheter. The following day, the patient underwent the replacement surgery and her intrathecal baclofen dosage was reinstated. According to her sister, the patient was "back to herself" by April 20, 2013.

         ¶5 In early May, a few weeks after the baclofen pump and catheter were replaced, the patient began exhibiting "manic-like, psychotic behavior." The Taylors took the patient to a different doctor (the expert) to monitor the patient's baclofen treatment. Initially, the expert concluded that the patient's "manic-like behavior was caused by baclofen overdose" and, at the expert's "direction, all baclofen was stopped by late May 2013." The expert later concluded that the patient's change in behavior was due to baclofen withdrawal rather than overdose.

         ¶6 The Taylors assert that the patient suffers from a permanent neurological disorder, encephalopathy, and allege that the injury was caused by baclofen withdrawal that occurred between April 18, 2013, and April 19, 2013, before the pump and catheter were replaced. The Taylors sued the University of Utah, University Hospital, University of Utah Physical Medicine and Rehabilitation Clinic, and the agents, employees, and staff employed with those institutions that were involved in the patient's baclofen treatment (collectively, the Defendants). To support their theory of causation, the Taylors sought to present expert testimony at trial. The expert's testimony would explain that her theory of causation was the following sequence of events: "[b]aclofen withdrawal caused a metabolic disturbance, which caused encephalopathy, which produced months-long hallucinations and other abnormal behavior, resulting in or causing permanent memory and cognitive function damage."

         ¶7 After deposing the expert, the Defendants filed a motion in limine to exclude the expert's testimony, arguing that the testimony was not based on medical literature or her personal experience and therefore could not satisfy the threshold showing of reliability under rule 702 of the Utah Rules of Evidence. The expert conceded in her deposition that "there is not a single reported case of baclofen withdrawal in which the patient remained stable throughout the episode and went on to suffer permanent neurological injury" and that she "has never seen a patient experience the injuries that [the patient] claims to have suffered." The expert also conceded that symptoms of baclofen withdrawal generally subside within forty-eight hours after the baclofen levels are reinstated and that baclofen withdrawal does not result in permanent injury if the baclofen levels are properly reinstated. The Defendants argued that, as a result, there "are no facts or data to support [the expert's] opinion" and that her proposed testimony is "the very type of unreliable testimony that Rule 702 is intended to prohibit."

         ¶8 The district court agreed with the Defendants and excluded the expert's testimony. The court concluded that, because the expert "admits she has never seen [this injury] in her practice" and has failed to provide medical literature "to support the argument that encephalopathy-whether caused by a metabolic disturbance or something else-can last more than 48 hours after therapeutic levels of baclofen are restored," she "does not have facts and data sufficient upon ...


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