Opinion No. 86
from the District Court of the Fourth Judicial District of
the State of Idaho, Ada County. Hon. Deborah A. Bail,
judgment of the district court is affirmed in part and
vacated in part, and the case is remanded.
Jones McColl, PLLC, Boise, for appellants. Jeremiah Quane
& Glasser, LLP, Morgantown, West Virginia, and Nevin,
Benjamin, McKay & Bartlett, LLP, Boise, for respondent.
Scott McKay argued.
JONES, Chief Justice
an appeal from a jury verdict entered in a wrongful death
action. Charles Ballard ("Charles") brought suit
for wrongful death and medical malpractice against Silk Touch
Laser, LLP ("Silk Touch") and its owner Dr. Brian
Kerr. In 2010, Charles' wife Krystal Ballard
("Krystal") underwent a liposuction and fat
transfer procedure at Silk Touch in Eagle, Idaho. Krystal
died less than a week later from septic shock caused by
unknown bacteria in her right buttock. Charles' suit
alleged that the bacteria that caused Krystal's death
were introduced into her body during the procedure at Silk
Touch because certain reusable medical equipment was not
properly disinfected and sterilized.
action first went to trial in November 2013, but ended in a
mistrial. The case was retried in September 2014, and the
jury returned a verdict in favor of Charles. The jury
additionally concluded that Dr. Kerr and Silk Touch acted
recklessly and awarded Charles $2, 540, 436 in economic
damages and $1, 250, 000 in non-economic damages. After the
second trial, the district court awarded Charles costs and
attorney fees for the mistrial.
Touch raises twenty-one issues on appeal, challenging several
of the district court's evidentiary rulings, the
sufficiency of the evidence supporting the verdict, several
of the jury instructions, and the district court's award
of costs and attorney fees. Silk Touch also alleges that the
jury verdict should be overturned because the district court
permitted the jurors to submit questions to witnesses and the
district court made improper comments on the evidence during
trial. Charles seeks attorney fees on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Touch is a medical spa in Eagle, Idaho that performs cosmetic
procedures. It was opened in 1999 by Dr. Kerr and his wife
Susan Kerr. Dr. Kerr is a trained anesthesiologist.
Originally, Silk Touch only offered laser hair removal, Botox
treatment, and dermal fillers. However, Silk Touch began
offering liposuction and fat transfers in 2007, after Dr.
Kerr completed training on those procedures.
was a 27-year-old staff sergeant in the U.S. Air Force,
stationed at Mountain Home, Idaho. She lived with her husband
Charles, who was also a staff sergeant with the U.S. Air
Force. On July 13, 2010, Krystal went to Silk Touch for a
consultation for a liposuction and fat transfer procedure.
Krystal sought to have liposuction on her abdomen and flanks
and have some of the fat transferred to her buttocks. She met
with Dr. Kerr, who explained the procedure and determined
that Krystal was a good candidate for the surgery. On July
21, 2010, Dr. Kerr performed the procedure on Krystal. During
the procedure, Dr. Kerr used both disposable and reusable
reusable equipment included a Vaser handpiece, suction
cannulas, and a canister. The Vaser handpiece and cannulas
were used during the liposuction procedure on Krystal's
abdomen. The Vaser handpiece uses ultra-sound waves to break
up fat into smaller pieces and then those pieces are
suctioned out using the cannulas. The Vaser handpiece was not
used during the liposuction on Krystal's flanks because
the fat taken was to be transferred to Krystal's
buttocks. The fat from Krystal's flanks was suctioned out
using the same cannulas used in the abdomen liposuction. The
fat taken from Krystal's flanks was then stored in a
reusable canister until it was injected into Krystal's
Kerr and other Silk Touch staff testified as to the
procedures for disinfecting and sterilizing reusable medical
equipment at Silk Touch. Dr. Kerr testified that Silk Touch
did not have any written policies for disinfecting and
sterilizing reusable medical equipment. The standard practice
at Silk Touch for cleaning the Vaser handpiece was to wipe it
down with an antiseptic wipe and then put the handpiece in an
autoclave. Dr. Kerr testified that other reusable equipment,
including the cannulas and canisters, were soaked in a basin
with Hibiclens and water and then cleaned with a brush before
being placed in the autoclave. An autoclave sterilizes
medical equipment by steam cleaning at a high temperature. A
series of indicators may be used to ensure the autoclave is
functioning correctly, including chemical and biological
indicators. Silk Touch used chemical but not biological
the operation, Krystal was given post-operative instructions
and a post-operative appointment was set for July 23, 2010.
On the morning of July 23, 2010, Susan Kerr received a call
from Krystal. Krystal told Susan Kerr that she was
experiencing immense pain in her buttocks, and Krystal's
post-operative appointment was moved to an earlier time that
day. During the appointment, Dr. Kerr examined Krystal,
noting that her wounds seemed to be healing normally. Dr.
Kerr testified that he did not suspect that Krystal had an
infection, but he started Krystal on an antibiotic and an
anti-inflammatory steroid because she complained of pain.
husband Charles had been out of town on a temporary duty
assignment in July 2010 and was unaware of Krystal's
surgery. Charles testified that he returned home on the
evening of July 23, 2010. Charles further testified that
throughout that evening and the next day Krystal seemed to be
ill and in pain. On the evening of July 24, 2010, Krystal
called Dr. Kerr, who spoke with Charles on the phone. Dr.
Kerr informed Charles of the liposuction and fat transfer
procedure and asked Charles to take Krystal's temperature
and make sure she was taking her medication. Krystal's
temperature appeared normal.
that evening, Krystal woke Charles up and asked him to call
911. Krystal told paramedics who arrived on the scene that
she was in pain and was having trouble breathing. Krystal was
transported to Elmore Medical Center in Mountain Home. At
Elmore Medical Center several tests were performed on
Krystal. When the results of the tests showed that Krystal
had signs of an acid-base abnormality, elevated white blood
cell count, and renal failure, the emergency room physician
ordered that Krystal be life-flighted to St. Alphonsus
Regional Medical Center in Boise. The emergency room
physician also noted several possible diagnoses for
Krystal's condition, including sepsis, septic shock, and
acute renal failure. Sepsis occurs when an infection causes a
systemic response in a person, such as shock. When a patient
goes into shock his or her blood pressure lowers, which can
reduce blood flow to vital organs and lead to organ failure.
morning of July 25, 2010, Krystal was admitted to St.
Alphonsus. The emergency room physician noted that Krystal
presented with abnormally low blood pressure, elevated heart
rate, and potential multi-organ failure. The emergency room
physician started treating Krystal for sepsis. Despite
treatment, Krystal's condition worsened, and she was
transferred to the intensive care unit ("ICU").
Krystal's condition did not improve in the ICU. Krystal
showed signs of respiratory and renal failure and eventually
was placed on full life support. While on life support,
Krystal went into cardiac arrest multiple times. The fourth
time Krystal went into cardiac arrest doctors were unable to
resuscitate her. She died on the evening of July 25, 2010.
case was referred to the Ada County Coroner's office. Dr.
Groben, a forensic pathologist, performed an autopsy on
Krystal. During his examination, Dr. Groben found
gram-negative rod bacteria deep in the fat tissue in
Krystal's right buttock, near the injection site for the
fat transfer. Dr. Groben did not note any other signs of
infection or bacteria in Krystal. Based on his examination,
Dr. Groben concluded that the cause of Krystal's death
was sepsis with probable toxic shock syndrome from the
unknown gram-negative bacteria in her right buttock.
Course of Proceedings
March 16, 2012, Charles filed a wrongful death and medical
malpractice suit against Dr. Kerr and Silk Touch
(collectively "Silk Touch"). Charles alleged that
reusable medical equipment used in Krystal's procedure
was not properly disinfected and sterilized. Charles further
alleged that because the equipment was not properly
sterilized, bacteria were introduced into Krystal's right
buttock during the fat transfer procedure, which caused the
infection that ultimately led to Krystal's death.
case proceeded to a jury trial on November 5, 2013. Before
trial, the district court had ruled on the parties'
motions in limine. As relevant here, the district court ruled
that Silk Touch could not present evidence of the absence of
infection in other patients. On November 14, 2013, Silk Touch
presented testimony from Dr. Stiller, its standard of care
expert. During Dr. Stiller's testimony, he stated that
there were no pertinent or persistent infections at Silk
Touch. The court declared a mistrial, concluding that Silk
Touch violated the court's order and that the violation
caused substantial prejudice to Charles that could not be
rectified. Charles asked the district court to award him
costs and attorney fees for the mistrial. At the hearing on
Charles' motion, the court awarded Charles expert-witness
costs but reserved ruling on attorney fees.
case was retried from September 16, 2014 through October 2,
2014. The jury returned a special verdict, concluding that
Silk Touch breached the standard of care for disinfecting and
sterilizing medical equipment and that such breach was the
proximate case of Krystal's death. The jury also
concluded that Silk Touch acted recklessly and awarded
Charles $2, 540, 436 in economic damages and $1, 250, 000 in
non-economic damages. Judgment was entered against Silk Touch
on October 15, 2014, and Silk Touch timely appealed the
judgment. Charles filed a memorandum for costs and attorney
fees. On February 5, 2015, the district court issued an order
awarding Charles $19, 018.91 in costs as a matter of right,
$54, 110.80 in discretionary costs, and $70, 566.50 in
attorney fees for the mistrial. The court entered a
supplemental judgment on February 13, 2015, and Silk Touch
timely filed an amended notice of appeal.
ISSUES ON APPEAL
Whether there was sufficient evidence to support the
1. Whether there was sufficient evidence to support the
jury's conclusion that Silk Touch breached the applicable
standard of care.
2. Whether there was sufficient evidence to support the
jury's conclusion that Silk Touch's breach of the
standard of care was the proximate cause of Krystal's
B. Whether the district court erred in its evidentiary
1. Whether the district court erred in ruling that
Charles' expert, Dr. Sorensen, did not have to
familiarize himself with the local standard of care.
2. Whether the district court erred in excluding Dr.
Kerr's testimony on who establishes the standard of care.
3. Whether the district court erred in ruling that testimony
from Silk Touch's expert, Dr. Stiller, was unnecessarily
4. Whether the district court erred in sustaining
Charles' objection to Silk Touch cross-examining Dr.
Sorensen about E. coli.
5. Whether the district court erred in allowing Charles to
present Dr. Kerr's answer to interrogatory no. 22 to the
6. Whether the district court erred in allowing Dr. Sorensen
to compare Dr. Kerr's interrogatory and deposition
7. Whether the district court erred in excluding Silk
Touch's Exhibits MM and NN.
8. Whether the district court erred in admitting Charles'
Exhibit 5 and excluding Silk Touch's Exhibit H.
9. Whether the district court erred in excluding evidence of
the absence of infection in other Silk Touch patients.
C. Whether the district court erred in its jury instructions:
1. Whether the district court improperly instructed the jury
on the applicable standard of care.
2. Whether the district court gave an erroneous instruction
on circumstantial evidence.
3. Whether the district court gave an erroneous instruction
4. Whether the district court erred in submitting the issue
of recklessness to the jury.
D. Whether the district court's judgment should be
reversed because the court made improper comments on the
E. Whether the district court abused its discretion in
permitting juror questions.
F. Whether the district court's judgment should be
reversed under the doctrine of cumulative error.
G. Whether the district court abused its discretion by
awarding Charles attorney fees and costs for the mistrial.
H. Whether Charles is entitled to attorney fees on appeal.
Whether there was sufficient evidence to support the
Court will not set aside a jury verdict on appeal if it is
supported by substantial and competent evidence."
Van v. Portneuf Med. Ctr., Inc., 156 Idaho 696, 700,
330 P.3d 1054, 1058 (2014). "[W]hen reviewing a jury
verdict on appeal the evidence adduced at trial is construed
in a light most favorable to the party who prevailed at
trial." Id. (quoting Garrett Freightlines,
Inc. v. Bannock Paving Co., Inc., 112 Idaho 722, 726,
735 P.2d 1033, 1037 (1987)). "The evidence supporting
the jury's verdict may be contradicted, but the verdict
will be upheld if it is 'of such sufficient quantity and
probative value that reasonable minds could conclude that the
verdict of the jury was proper.'" Mackay v. Four
Rivers Packing Co., 151 Idaho 388, 391, 257 P.3d 755,
758 (2011) (quoting Mann v. Safeway Stores, Inc., 95
Idaho 732, 736, 518 P.2d 1194, 1198 (1974)). "This Court
will not second guess the jury's determinations as to the
weight of the evidence and witness credibility."
There was substantial evidence to support the jury's
conclusion that Silk Touch breached the applicable standard
Code section 6-1012 requires a plaintiff bringing a medical
malpractice claim to prove, by direct, competent expert
testimony and by a preponderance of the evidence, that the
defendant negligently failed to meet the applicable standard
of health care practice. "That standard is specific to
'the time and place of the alleged negligence' and
'the class of health care provider that such defendant
then and there belonged to. . . .'" Mattox v.
Life Care Ctrs. of Am., Inc., 157 Idaho 468,
473, 337 P.3d 627, 632 (2014) (quoting I.C. § 6-1012).
"The defendant's care is judged against
'similarly trained and qualified providers of the same
class in the same community, taking into account his or her
training, experience, and fields of medical specialization,
if any.'" Id. (quoting I.C. § 6-1012).
The term "community" refers to "that
geographical area ordinarily served by the licensed general
hospital at or nearest to which such care was or allegedly
should have been provided." I.C. § 6-1012. To be
considered competent, the medical expert must show that
"he or she is familiar with the standard of health care
practice for the relevant medical specialty, during the
relevant timeframe, and in the community where the care was
provided" and "must explain how he or she
became familiar with that standard of care." Bybee
v. Gorman, 157 Idaho 169, 174, 335 P.3d 14, 19 (2014)
(internal quotation marks omitted); see also I.C.
There was substantial evidence to support a finding that
Dr. Sorensen was familiar with the applicable standard of
preliminary matter, Silk Touch argues extensively on appeal
that the district court should have excluded testimony from
Charles' standard of care expert Dr. Sorensen because he
did not establish that Dr. Sorensen was familiar with the
applicable standard of care. However, Silk Touch has not
pointed to any instance where it asked the court to exclude
the testimony of Dr. Sorensen on this basis. Silk Touch did
not challenge the admissibility of Dr. Sorensen's
testimony in its motions in limine. Additionally, Silk Touch
does not point to any instance prior to or during trial that
it raised an objection to Dr. Sorensen's testimony on the
applicable standard of care because it failed to meet the
foundational requirements provided in Idaho Code section
6-1013. Under Idaho Rule of Evidence 103(a), error may not be
predicated on a ruling admitting evidence unless "a
timely objection or motion to strike appears of record,
stating the specific ground of objection, if the specific
ground was not apparent from the context." Silk Touch
has failed to point to a timely objection or motion to strike
on the record. Therefore, we decline to address Silk
Touch's arguments that the district court erred in
admitting Dr. Sorenson's testimony on the standard of
there is substantial evidence in the record supporting that
Dr. Sorenson was familiar with the applicable standard of
care. Dr. Sorensen testified that he was familiar with the
standard of care for sterilizing and disinfecting reusable
medical equipment that applied to non-plastic surgeons who
performed cosmetic surgeries in the Boise area in 2010. Dr.
Sorensen is a cosmetic surgeon who practiced in the Boise
area in 2010 and is certified in both plastic surgery and
general surgery. Dr. Sorensen testified that he gained
familiarity with the applicable standard of care by: (1)
having worked with both plastic surgeons and non-plastic
surgeons who perform cosmetic surgeries in the Boise area and
observing how they sterilize equipment and (2) through his
role as an inspector for the American Academy of Accrediting
Surgery Centers, where he observed practices for disinfecting
and sterilizing equipment in facilities performing cosmetic
surgery in the Boise area when inspecting those facilities
for accreditation. Although Silk Touch was not an accredited
facility, Dr. Sorensen testified that based on his experience
working in the Boise area, the standard of care for
disinfecting and sterilizing equipment is the same for
accredited and non-accredited facilities. Silk Touch
alleges that Dr. Sorensen lacked actual knowledge of the
standard of care that applied to Dr. Kerr because Dr. Kerr
was not a cosmetic surgeon and worked in Eagle rather than
Dr. Sorensen is arguably of a different specialty, as he is a
certified plastic surgeon and Dr. Kerr is an anesthesiologist
who performs cosmetic surgery, this would not preclude Dr.
Sorensen from testifying on the applicable standard of
care. "[I]t is unnecessary for an expert
witness to be of the same specialty as the defendant so long
as the expert establishes he possesses actual knowledge of
the standard of care to be applied." Newberry v.
Martens, 142 Idaho 284, 292, 127 P.3d 187, 195 (2005).
An expert of a different specialty may obtain actual
knowledge of the standard of care through interacting and
practicing with physicians of the applicable specialty.
Id. Dr. Sorensen stated that he was familiar with
the applicable standard of care through practicing in the
Boise area in 2010, interacting with both plastic surgeons
and non-plastic surgeons who perform cosmetic surgery, and
through inspecting facilities in the Boise area that perform
Dr. Sorensen testified that he practiced at St. Luke's in
Meridian, Idaho, which frequently saw patients from Eagle.
Dr. Kerr also testified that Silk Touch advertised to
patients throughout Boise, Nampa, Caldwell and surrounding
areas. Silk Touch argues on appeal that St. Alphonsus has a
hospital in Eagle, and Dr. Sorenson had not testified that he
was familiar with the standard of care applied specifically
in Eagle. This Court recently clarified the standard for
determining the applicable community:
Rather than choosing to define community by means of distance
from the nearest licensed general hospital, the legislature
chose to define community by reference to the locations from
which the patient base of the hospital is derived. If users
of the hospital's services commonly go from one location
to the place where the hospital is located, then that
location falls within the geographical area which constitutes
the community. As we implicitly recognized in Ramos,
it is because people residing at one location may commonly
use the services provided by more than one hospital,
communities may overlap one another.
Bybee, 157 Idaho at 176, 335 P.3d at 21 (citing
Ramos v. Dixon, 144 Idaho 32, 35, 156 P.3d 533, 536
(2007)). Evidence was presented that patients from Eagle go
to hospitals in neighboring areas and Silk Touch solicited
patients throughout the Boise area. Therefore, there was
substantial evidence in the record to support that the
applicable community included the greater Boise area.
on the foregoing, there was substantial evidence to support
that Dr. Sorensen was familiar with the standard of care for
disinfecting and sterilizing medical equipment that applied
to similarly trained and qualified providers of the same
class and in the same community as Dr. Kerr.
There was substantial evidence to support a finding that
Silk Touch breached the applicable standard of care.
Sorensen opined that Silk Touch breached the applicable
standard of care for disinfecting and sterilizing medical
equipment. Specifically, Dr. Sorensen testified that in order
to meet the applicable standard of care, Silk Touch needed to
follow the guidelines for disinfecting and sterilizing
medical equipment provided by the Center for Disease Control
("CDC"), the Idaho Department of Health and
Welfare, and the manufacturers of equipment Silk Touch used
such as the Vaser handpiece. On appeal, Silk Touch argues
that under Idaho Code section 6-1014, guidelines or standards
established by the state or federal government cannot be used
or considered as a basis for establishing an applicable
community standard of care. This is inaccurate.
Code section 6-1014(1) provides in relevant part:
In determining whether a health care practitioner has met a
standard of care under this chapter or under any other Idaho
statute, no criteria, guideline, standard or other metric
established or imposed by the patient protection and
affordable care act (PPACA), P.L. 111-148, established or
imposed by or pursuant to any other law or regulation of the
United States or any entity or agency thereof and used for
the purpose of determining reimbursement or a rate of
reimbursement for the care provided, or established or
imposed by another state or by a third party payor, shall be
used as a basis for establishing an applicable community
standard of care.
plain language of this statute states that no criteria,
guideline, standard or other metric shall be used to
establish an applicable standard of care if the standard is:
(1) established or imposed by the PPACA or any other law or
regulation of the United States or an entity thereof
and used for the purpose of determining
reimbursement or a rate of reimbursement for the care
provided or (2) established or imposed by another state or by
a third party payor. Section 6-1014 was expressly enacted to
prevent quality metrics adopted in the Affordable Care Act or
by insurers from being used to establish the standard of
health care practice in Idaho. Statement of Purpose, S.B.
1355, 2014 Leg., RS Doc. No. 22854C1. This statute does not apply
to guidelines established by the CDC, the Idaho Department of
Health and Welfare, or manufacturers of medical equipment.
Sorensen opined that these guidelines require reusable
medical equipment, such as the Vaser handpiece, cannulas, and
reusable canisters used in Krystal's procedure, to be
soaked in an enzymatic cleaner before such equipment is
placed in the autoclave for steam sterilization.
Additionally, Dr. Sorensen testified that the CDC guidelines
suggest the use of biological indicators in the autoclave to
ensure that the steam sterilization process is killing
bacteria and that using biological indicators was the
standard of practice in the Boise area in 2010.
trial, Charles published deposition testimony from Dr. Kerr
that described the procedures used at Silk Touch for
disinfecting and sterilizing medical equipment. That
testimony went as follows:
Question: I think you wipe down the handpiece because it
can't be submerged with an aseptic wipe.
Question: Okay. Now, what's the next step in the
cleaning, disinfecting, and sterilizing the handpiece from
the Vaser system?
Answer: To autoclave it, V-a-s-e-r.
Question: Okay. Is there anything between wiping down with
aseptic wipes and autoclaving?
Answer: With the handpiece, no.
Question: Okay. What about the rod and cap, the wrench, the
suction cannulas, and the handles and collar? Are all of
those -- after you wipe them down with Hibiclens, are those
cleaned, disinfected, and sterilized in the same manner?
Answer: Are they all cleaned? No.
Question: Okay. Let's separate them out. For instance,
once you use the Hibiclens, as you've described with the
rod, the cap, wrench, cannulas, handles, and collars,
what's the next step in the cleaning, disinfecting, and
Answer: They are washed in a bath of Hibiclens and hot water.
. . . .
Question: Okay. Do you use any -- anything else other than
Hibiclens and water to soak those particular pieces of
. . . .
Question: Okay. Let me get to that. After you soak them in
this water Hibiclens, you use the brush to kind of scrub off
any additional debris that may be there?
Question: All right. And then where do you go after you use a
brush to scrub them off?
Answer: They are rinsed off and placed in the autoclave.
Question: Okay. Rinsed off with tap water?
Question: All right. After you rinse them off with tap water,
are they then immediately placed in the autoclave?
Answer: They are placed in the autoclave cassette, then
placed in the autoclave.
. . . .
Question: Okay. Now, going back a couple of steps. As far as
the Hibiclens and water, is there any type of other cleaner
that is used in that process before those pieces of equipment
get into the autoclave?
Question: All right. Do you use any type of enzymatic cleaner
in the process?
Sorensen testified that the procedures described by Dr. Kerr
during his deposition do not meet the standard of care. Dr.
Sorensen stated that Hibiclens is not an appropriate solution
to disinfect and sterilize reusable medical equipment and
that it is not approved by the CDC for such use. He further
testified that the use of Hibiclens is inappropriate because
it is not designed to clean or sterilize instruments, but
rather is designed to remove bacteria from a person's
skin before a minor surgery. Dr. Sorensen also testified that
Dr. Kerr did not mention soaking reusable medical equipment
in an enzymatic cleaner or other detergent. Dr. Sorensen
testified that the use of an enzymatic cleaner is important
because its purpose is to dissolve material from the human
body, known as proteinaceous debris, which cannot be removed
by cleaning the equipment with a brush. Dr. Sorensen further
stated that if proteinaceous debris is not removed it
insulates bacteria from being killed during the steam
sterilization process in the autoclave.
trial, Dr. Kerr and Briana Dumas testified that Silk Touch
used chemical indicators in the autoclave system but not
biological indicators. Dr. Sorensen opined that this fell
below the standard of care. Dr. Sorensen testified that an
autoclave sterilizes medical equipment by steam cleaning at a
high temperature. Dr. Sorensen also stated that a series of
indicators may be used to ensure the autoclave is functioning
correctly, including chemical and biological indicators.
Chemical indicators are used to determine whether the
autoclave is reaching the required temperature for
sterilization. Biological indicators are small tubes with
resistant bacteria that are placed in the autoclave. If the
bacteria in the tube are killed during the autoclave cycle,
it indicates that the sterilization process is killing any
bacteria on the equipment. Dr. Sorensen opined that the use
of a biological indicator was particularly important because
it was the only indicator that tested whether the autoclave
was actually killing bacteria.
foregoing testimony provided substantial evidence to support
the jury's finding that Silk Touch breached the
applicable standard of care by not using an enzymatic cleaner
and by not using biological indicators in its autoclave.
There was substantial evidence to support the jury's
finding that Silk Touch's breach of the standard of care
was a proximate cause of Krystal's death.
a medical malpractice case, a 'plaintiff has the burden
of proving not only that a defendant failed to use ordinary
care, but also that the defendant's failure to use
ordinary care was the proximate cause of damage to the
plaintiff.'" Easterling v. Kendall, 159
Idaho 902, 914, 367 P.3d 1214, 1226 (2016) (quoting
Pearson v. Parsons, 114 Idaho 334, 339, 757 P.2d
197, 202 (1988)).
To establish proximate cause, a plaintiff must demonstrate
that the provider's negligence was both the actual and
legal (proximate) cause of his or her injury. Actual cause is
a factual question focusing on the antecedent factors
producing a particular consequence. Legal cause exists when
it is reasonably foreseeable that such harm would flow from
the negligent conduct.
Id. (citations and internal quotation marks
omitted). Proximate cause may be proved by direct evidence or
a "chain of circumstances from which the ultimate fact
required to be established is reasonably and naturally
inferable." Weeks v. E. Idaho Health Servs.,
143 Idaho 834, 839, 153 P.3d 1180, 1185 (2007) (quoting
Sheridan v. St. Luke's Reg'l Med. Ctr., 135
Idaho 775, 785, 25 P.3d 88, 98 (2001)).
trial, Dr. Sorensen opined that Silk Touch breached the
applicable standard of care for disinfecting and sterilizing
medical equipment by failing to soak reusable medical
equipment in an enzymatic cleaner and by not using biological
indicators to ensure that the autoclave was killing bacteria.
Dr. Kerr testified that reusable medical equipment was used
in Krystal's procedure, including a Vaser handpiece,
suction cannulas, and canisters. Dr. Kerr testified that he
used the Vaser handpiece during the liposuction on
Krystal's abdomen to break up fat into smaller pieces,
which were then suctioned out using the cannulas. The same
cannulas were used to suction fat from Krystal's flanks
and that fat was stored in a canister until it was injected
into Krystal's right and left buttocks.
Sorensen stated that he reviewed Krystal's medical
records from Elmore Medical Center and St. Alphonsus Regional
Medical Center where treating physicians recorded that
Krystal presented with extremely low blood pressure and
potential organ failure and recorded sepsis and septic shock
as possible diagnoses. Dr. Sorensen explained that sepsis is
an infection that causes a systemic response. Dr. Sorensen
further explained that septic shock is a continuation of
sepsis where an infection causes the body to go into shock
which causes extremely low blood pressure and decreased blood
flow to vital organs. Dr. Sorensen also reviewed the autopsy
report prepared by Dr. Groben, which concluded that Krystal
died from septic shock and organ failure caused by
gram-negative rod bacteria found in Krystal's right
buttock, near the injection site for the fat transfer. Based
on this information, Dr. Sorensen opined that bacteria were
introduced into Krystal's buttock during the fat transfer
procedure because Silk Touch failed to properly sterilize its
reusable medical equipment and that bacteria caused the
infection that led to Krystal's death.
was also presented from Dr. Groben, the forensic pathologist
who performed Krystal's autopsy, and Dr. Nichols, another
forensic pathologist retained by Charles for this proceeding.
Dr. Groben testified that he found large numbers of
gram-negative rod bacteria in the subcutaneous fat in
Krystal's right buttock, near the injection site of the
fat transfer. Dr. Groben also testified that he found large
numbers of white blood cells in that area indicating an
infection. Dr. Groben further testified that there were no
other signs of infection or other gram-negative rod bacteria
in Krystal's body except early neutrophils in her lungs,
which is common in someone who has been recently
hospitalized. Dr. Groben ultimately concluded that the cause
of Krystal's death was sepsis with probable toxic shock
syndrome from unknown gram-negative rod bacteria.
Nichols testified that the tissue sample taken from
Krystal's right buttock during the autopsy showed
evidence of a bacterial process associated with infection and
that the bacteria were placed horizontally, parallel to the
skin surface. Dr. Nichols found this to be significant
because the bacteria did not show a vertical path from the
skin, but rather, looked like they had been introduced deep
into the fat tissue, parallel to the skin. Dr. Nichols opined
that if the bacteria were introduced through Krystal's
skin there would be signs of bacteria traveling in a vertical
line from the skin to the subcutaneous tissue. Dr. Nichols
further opined that the types of white blood cells in the
sample showed that the infectious process had been ongoing
for two to three days before Krystal died. Based on this
information, Dr. Nichols concluded that the only plausible
way the bacteria could have been introduced into
Krystal's buttock was through the injection of
contaminated fat during the fat transfer procedure performed
at Silk Touch. Dr. Nichols also stated that the localized
bacteria found in Krystal's buttock likely contained a
toxin that caused her body to go into shock which led to the
progressive failure of her vital organs. Dr. Nichols
testified that these localized bacteria could cause a lethal
reaction because the toxin could be diffused throughout the
body without the bacteria spreading.
preliminary matter, Silk Touch alleges that Dr.
Sorensen's and Dr. Nichols' testimony should have
been excluded because their opinions are unreliable and
speculative. There is no indication in the record that Silk
Touch objected to the admission to Dr. Nichols'
testimony. Therefore, we affirm the district court's
admission of his testimony. See I.R.E. 103(a). Silk
Touch did object to the admission of Dr. Sorenson's
causation opinions, but only on the basis of "lack of
foundation." As we recently stated in Hansen v.
Roberts, "[f]or an objection to be preserved for
appellate review, either the specific ground for the
objection must be clearly stated, or the basis of the
objection must be apparent from the context." 154 Idaho
469, 473, 299 P.3d 781, 785 (2013) (internal quotation marks
omitted). This Court has previously held "that an
objection that 'no proper foundation has been laid, '
was not sufficiently specific because it failed to state
'wherein the foundation for the opinion was
insufficient.'" Id. (quoting Hobbs v.
Union Pac. R.R. Co., 62 Idaho 58, 74, 108 P.2d 841, 849
(1940)). Silk Touch's objection to Dr. Sorensen's
causation opinions based on "lack of foundation" is
not sufficient to preserve its argument on appeal that Dr.
Sorensen's testimony should have been excluded because it
was unreliable and speculative.
appeal, Silk Touch alleges that there was insufficient
evidence to establish proximate cause because Dr.
Sorensen's testimony did not establish that bacteria was
actually on the reusable medical equipment used in
Krystal's procedure. Additionally, Silk Touch argues that
the evidence presented by Charles fails to establish how the
bacteria actually got into Krystal's right buttock or to
address why the bacteria was not also found in Krystal's
left buttock if the bacteria were introduced during the fat
contends that Dr. Sorensen's testimony was sufficient to
show a chain of circumstances that allowed a jury to
reasonably conclude that the reusable equipment used in
Krystal's procedure was contaminated because Silk Touch
did not soak the equipment in an enzymatic cleaner and did
not ensure bacteria were being killed in the autoclave by
using biological indicators. Additionally, Charles argues
that testimony from Dr. Groben and Dr. Nichols was sufficient
to establish that the bacteria found in Krystal's right
buttock were injected during the fat transfer because the
bacteria were found deep in the fat tissue near the injection
site and ran parallel to the skin.
Court stated in F ...