2015 UT App 280
THE UTAH COURT OF APPEALS
SINDA LYNN KERBY AND ELLESA E. DAY,
Appellants,
v.
MOAB VALLEY HEALTHCARE, INC.,
Appellee.
Opinion
No. 20131172-CA
Filed November 19, 2015
Seventh District Court, Moab Department
The Honorable Lyle R. Anderson
No. 090700112
Robert D. Strieper, Attorney for Appellants
Robert L. Janicki and Michael L. Ford, Attorneys for
Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES JOHN A. PEARCE and KATE A. TOOMEY concurred.
ORME, Judge:
¶1 A patient died following a medical procedure performed
at Allen Memorial Hospital in Moab. Her daughter and her
mother (Plaintiffs) filed suit against Moab Valley Healthcare, Inc.
(Allen Memorial), which operated Allen Memorial Hospital, for
medical malpractice. Plaintiffs filed a motion for partial
summary judgment and what they characterized as a renewed
motion for partial summary judgment on the issue of causation,
both of which the trial court denied. Following trial, the jury
found that nurses employed by Allen Memorial breached the
standard of care by discharging the patient while she was still
under the influence of drugs that she had received during her
hospitalization but that the breach did not cause her death.
Plaintiffs appeal.
Kerby v. Moab Valley Healthcare
¶2 Plaintiffs contend that the trial court erroneously denied
their motions for partial summary judgment and that the court
erroneously permitted prejudicial evidence regarding the
incarceration of the patient’s son. We affirm.
BACKGROUND
¶3 In 2007, the patient underwent an esophagoscopy and a
bronchoscopy at Allen Memorial Hospital in Moab, Utah.
During the procedure, a doctor removed a ‚fair amount‛ of
mucus from her lungs. Afterward, during her three-hour stay at
Allen Memorial Hospital, the patient received 30 mg of
morphine, 25 mg of Valium, 4 mg of Zofran, 2 mg of Dilaudid, 5
mg of Versed, 50 mg of fentanyl, and, just before she was
wheeled out to her car, 12.5 mg of promethazine. When the
patient was discharged, several nurses observed that she was
drowsy, unable to understand instructions, and acting drunk
and incoherent. One of the nurses later testified that she had to
remind the patient several times to take deep breaths.
¶4 The patient’s ex-husband drove her to her home from the
hospital and helped her to bed. The last time anyone saw the
patient alive was when her daughter went into the patient’s
bedroom around 11:00 p.m. that night. Around 4:00 a.m., the
patient’s ex-husband found her dead. The medical examiner
determined her cause of death to be the ‚combined effects of
asthma, chronic bronchitis, drug toxicity (morphine and
promethazine) and obesity.‛
¶5 In 2009, Plaintiffs filed a complaint against Allen
Memorial alleging medical malpractice for the wrongful death of
the patient. Thereafter, Plaintiffs filed a motion for partial
summary judgment on the issue of causation. Plaintiffs
contended that the nurses at Allen Memorial Hospital ‚breached
the standard of care by discharging a pharmaceutically
inebriated patient . . . from same day surgery prematurely and
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that she should have been admitted for overnight observation.‛
They further contended that ‚if [the patient] had not been
discharged from Allen Memorial and had been fully recovered
from her anesthesia before she was discharged, she would not
have died.‛ In support of their motion, Plaintiffs relied on the
deposition testimony of Allen Memorial’s causation expert, a
toxicologist, who testified at one point during his deposition that
although it was outside the scope of his expertise, ‚being a
physician, [he] would generally have to answer that it’s more
likely that [the patient] would have survived in the hospital.‛
¶6 The trial court denied Plaintiffs’ first motion for partial
summary judgment. During a hearing on the motion, there was
some discussion by Plaintiffs’ counsel regarding the
‚astronomical‛ level of promethazine recorded on the autopsy
report, which ‚could not be accounted for by the one dose
charted in *the patient’s+ record.‛ Allen Memorial’s counsel
observed that Plaintiffs’ motion was ‚a hundred percent
focused‛ on whether the patient received too much
promethazine and that the issue was not whether the
promethazine caused her death but, as the trial court put it,
‚whether, if she hadn’t been discharged, she would have
survived.‛ The trial court considered whether Plaintiffs were
confusing but-for causation with proximate cause and observed
that the issue was ‚whether the hospital should have foreseen
that their discharging [the patient] would have caused this
result.‛ The court ultimately denied Plaintiffs’ motion, the judge
stating, ‚I don’t think someone overdosing by medication they
get by extra-legal means is something that the hospital can
foresee. There may be some other reasons, but I should deny the
motion on that ground alone. So, I’m denying that motion for
partial summary judgment.‛1
1. During the same hearing, the trial court addressed Plaintiffs’
motion to strike Allen Memorial’s attempt to allocate fault to
(continued…)
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¶7 Subsequently, the parties took an additional deposition to
help them understand the discrepancy between the amounts of
promethazine recorded in the patient’s medical record and in
her autopsy report. Based on that deposition, Plaintiffs filed their
renewed motion for summary judgment on the issue of
causation. At a hearing on that motion, the following colloquy
ensued:
[Trial court]: Even the stuff you cited, the guy said,
I don’t know. Obviously, she would have been
more likely to have lived, but more likely doesn’t
mean it makes a difference between living and not
living. So, where do you have evidence that I must
determine, as a matter of law, that had she stayed
in the hospital, she wouldn’t have died?
[Plaintiffs’ counsel]: Because she would have been
able to be monitored. She would have been kept
alive and the evidence is—I mean, even though he
says she may have, more likely than not, that’s the
standard.
(…continued)
Plaintiffs based on the high level of promethazine recorded on
the autopsy report. There was only one 12.5 mg dose of
promethazine recorded in the patient’s medical record, which
could not account for the high level of promethazine found in
her blood stream during her autopsy. Plaintiffs contended that
the patient had access to promethazine only at Allen Memorial
Hospital and that the hospital must have given her more
promethazine than it recorded in her chart. Allen Memorial
contended that the patient somehow acquired and self-
administered promethazine after she was discharged from the
hospital. The trial court concluded that the question of where the
patient received or obtained the promethazine was a jury issue.
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[Trial court]: He didn’t say that. He said she was
more likely to live being in the hospital than not
being in the hospital. So, maybe, the chances go up
from five to ten, from ten to twenty, maybe they go
from forty-five to fifty-five. I don’t know and he
didn’t know.
The court then denied Plaintiffs’ renewed motion for partial
summary judgment on the ground that material facts were in
dispute.
¶8 Additionally, before trial, the patient’s son, who had been
incarcerated during the last years of her life, disclaimed any
interest in the case and any right to claim proceeds from the case.
As a result, on the first day of trial, Plaintiffs asked the trial court
to disallow any mention of the son because ‚any discussion
about [him] would be prejudicial, a waste of time, a waste of
judicial resources and his relationship with [the patient] is not at
issue in this case.‛ The trial court denied Plaintiffs’ request,
stating that the son was
one of the heirs and the difference between heirs,
under the Probate Code, and heirs under the
personal injury code is something I learned about
early in my career. . . . I don’t think you can carve
one person out of a family, as a matter of law, just
because he doesn’t want anything and determine
that anything about his relationship is completely
irrelevant to the evaluation of all of the other
relationships that exist in the family.
Thereafter, during the trial, one of the patient’s daughters
testified that the patient never visited the son while he was in
prison.
¶9 The jury determined that Allen Memorial breached the
standard of care but that the breach did not cause the patient’s
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death. As a result, the jury awarded nothing to Plaintiffs, and
they now appeal.
ISSUES AND STANDARDS OF REVIEW
¶10 First, Plaintiffs contend that the trial court erroneously
denied their motion for partial summary judgment and their
renewed motion for partial summary judgment. 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). We ‚review[] a trial
court’s legal conclusions and ultimate grant or denial of
summary judgment for correctness and view[] the facts and all
reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.‛ Bingham v. Roosevelt City
Corp., 2010 UT 37, ¶ 10, 235 P.3d 730 (citation and internal
quotation marks omitted).
¶11 Second, Plaintiffs contend that the trial court erroneously
permitted ‚irrelevant and unfairly prejudicial‛ evidence of the
son’s incarceration in violation of rule 403 of the Utah Rules of
Evidence. ‚We review a trial court’s decision to admit or exclude
evidence under Rule 403 of the Utah Rules of Evidence under an
abuse of discretion standard, and will not overturn a lower
court’s determination of admissibility unless it is beyond the
limits of reasonability.‛ Diversified Holdings, LC v. Turner, 2002
UT 129, ¶ 6, 63 P.3d 686 (citation and internal quotation marks
omitted). ‚Additionally, ‘*e+ven if the evidence was erroneously
admitted, that fact alone is insufficient to set aside a verdict
unless it has had a substantial influence in bringing about the
verdict.’‛ Glacier Land Co. v. Claudia Klawe & Assocs., 2006 UT
App 516, ¶ 12, 154 P.3d 852 (alteration in original) (quoting State
v. Bluff, 2002 UT 66, ¶ 47, 52 P.3d 1210). See also Utah R. Evid.
103(a) (providing that an erroneous ruling requires reversal
‚only if the error affects a substantial right of the party‛ claiming
error).
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ANALYSIS
I. Motions for Summary Judgment on Causation
¶12 Plaintiffs argue that the trial court erred when it denied
their motions for partial summary judgment on the question of
causation. According to Plaintiffs, ‚*t+he issue regarding
causation should never have gone to the jury‛ because ‚*t+he
issue regarding causation and whether or not [the patient]
would have survived on June 20, 2007 if she had been admitted
to Allen Memorial Hospital was undisputed.‛2 Plaintiffs contend
that ‚*t+here was absolutely no evidence presented that if [the
patient] had been hospitalized she would have died or that she
would more likely than not have died.‛3
¶13 ‚To sustain a medical malpractice action, a plaintiff must
demonstrate ‘(1) the standard of care by which the [medical
professional’s] conduct is to be measured, (2) breach of that
2. In their briefing, Plaintiffs repeatedly assert that it was also
undisputed that the patient died from the ‚combined effects of
asthma, chronic bronchitis, drug toxicity (morphine and
promethazine) and obesity.‛ However, Plaintiffs concede that
‚*t+he standard of care *they+ alleged was breached was not that
[the patient] received too many medications or that she should
not have received the medications, but that she should not have
been discharged from the hospital.‛ Thus, according to Plaintiffs,
‚although it is informative to know what the process of her
death was, the real issue on causation was whether or not [the
patient] would have lived if she had been admitted to the
hospital.‛
3. We note that the relevant inquiry was not whether the patient
would have died if she had been kept in the hospital but whether
she would have lived if she had been kept in the hospital, as
Plaintiffs contend she should have been.
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standard by the [professional], (3) injury that was proximately
caused by the *professional’s+ negligence, and (4) damages.’‛
Sohm v. Dixie Eye Ctr., 2007 UT App 235, ¶ 15, 166 P.3d 614
(alterations in original) (quoting Jensen v. IHC Hosps., Inc., 2003
UT 51, ¶ 96, 82 P.3d 1076). As to the third element of a medical
malpractice claim, ‚*p+roximate cause is ‘[t]hat cause which in
natural and continuous sequence, unbroken by an efficient
intervening cause, produces the injury and without which the
result would not have occurred.’‛ Harline v. Barker, 854 P.2d 595,
600 (Utah Ct. App. 1993) (second alteration in original) (quoting
Butterfield v. Okubo, 831 P.2d 97, 106 (Utah 1992)). In a medical
malpractice case, ‚the plaintiff is required to prove the standard
of care and proximate cause through expert testimony.‛ Sohm,
2007 UT App 235, ¶ 15.
¶14 ‚Generally, causation cannot be resolved as a matter of
law‛ because it is a ‚highly fact-sensitive element of any cause of
action.‛ Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1292
(Utah Ct. App. 1996) (citation and internal quotation marks
omitted). See also Harline, 854 P.2d at 600 (‚Proximate cause is an
issue of fact.‛). Indeed, Utah courts have recognized that ‚*f+act-
sensitive cases . . . do not lend themselves to a determination on
summary judgment.‛ Draper City v. Estate of Bernardo, 888 P.2d
1097, 1101 (Utah 1995). On the other hand, Utah courts have also
recognized that ‚in appropriate circumstances summary
judgment may be granted on the issue of proximate cause,‛
Jensen v. Mountain States Tel. & Tel. Co., 611 P.2d 363, 365 (Utah
1980), ‚*w+here, for instance, reasonable minds could not differ
that something was or was not the proximate cause of injury,‛
see id. at 365 n.4. In any event, ‚Utah litigants do not easily
dispose of the element of causation on summary judgment.‛
Kilpatrick, 909 P.2d at 1292.
¶15 In this case, Plaintiffs argue that the trial court erred in
denying their motions for partial summary judgment because,
according to Plaintiffs, there was no genuine dispute of material
fact regarding causation in view of the deposition testimony of
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Allen Memorial’s causation expert, a toxicologist. Relying on the
toxicologist’s testimony, Plaintiffs contend that ‚*i+t was
undisputed that had [the patient] stayed the night at Allen
Memorial Hospital she would more likely than not have lived.‛
¶16 During his deposition, the toxicologist answered several
questions from Plaintiffs’ counsel regarding whether the patient
would have fared better if she had stayed at Allen Memorial
Hospital after her procedure rather than going home. Because
the overall tone of the testimony and the context of key
statements are of such importance, we quote the testimony at
length:
Q. Okay. Do you agree with this, if [the patient]
had been kept overnight at Allen Memorial
Hospital on June 20th, 2007, in your opinion do
you believe, more likely than not, that she would
have been alive on June 21st 2007?
....
A. I don’t feel—that’s beyond my level of expertise.
I don’t feel like I can adequately answer that.
....
Q. And so she stood a much better chance of
surviving this if she had been kept in the hospital,
correct?
A. I don’t know the answer to that.
Q. Why don’t you know the answer to that when
you—
A. Because I don’t know that she died from the
promethazine. She could have had a cardiac
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arrhythmia, which may or may not have been
treatable in the hospital, may have been.
....
Q. Okay. So—but the respiratory arrest is more
likely than not, correct; that’s what you said
earlier?
A. I said it’s more likely than a cardiac arrhythmia,
and it’s more likely than—it’s likely that it was a
respiratory death.
Q. Yes. It’s likely that it was a respiratory death,
and a respiratory death can be prevented in the
hospitals, correct?
A. Most of the time. Not always, but most of the
time, yes.
Q. And if it was a respiratory death, if she had
been monitored, would she not have, more likely
than not, survived the respiratory arrest in the
hospital?
....
A. It’s beyond my level of expertise, but it is
possible that she would have survived, yes.
Q. Is it possible or even probable?
....
A. Again, it’s speculative. All respiratory arrests
that occur in the hospital are not—those patients
don’t always survive, so I don’t know the
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percentages of whether she would have survived
or not.
Q. Would she more likely have survived in the
hospital if she had a respiratory arrest than if she
was at home having a respiratory arrest?
A. Yes.
Q. How much more likely?
A. I don’t know. I can’t quantitate. I don’t know the
percentages, the numbers.
Subsequently, after several additional questions, Plaintiffs’
counsel questioned the toxicologist one final time regarding the
patient’s chances of survival at the hospital as compared to her
being at home:
Q. If [the patient] was in the hospital, monitored,
and being observed through the night, at that point
would she stand a better chance of surviving her
respiratory arrest in the hospital than being at
home unmonitored?
....
A. It is outside the scope of my expertise, but,
being a physician, I would generally have to
answer that it’s more likely that she would have
survived in the hospital.
Q. If she was in the hospital at Allen Memorial,
monitored and watched overnight, would you say
that she, more likely than not, would not have died
on June 20th, 2007, or June 21st, 2007?
....
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A. . . . I’m sorry. . . . I can’t answer that.
Q. Even as a physician, knowing what she died
from—
A. Not actually certain what she died from. She
died from multiple causes, so I don’t feel that I can
answer that.
¶17 Plaintiffs contend that the toxicologist’s testimony that
‚being a physician, I would generally have to answer that it’s
more likely that she would have survived in the hospital‛ was
sufficient to establish causation and that, therefore, the trial court
should have granted their motions for partial summary
judgment.4 And at oral argument before this court, Plaintiffs’
counsel relied heavily on the argument that although the
toxicologist originally qualified his testimony by stating that it
was outside the scope of his expertise, he provided this
particular testimony based on his knowledge generally as a
physician, and thus, without qualification.
¶18 Plaintiffs’ characterization of the record is flawed. The
toxicologist began this particular statement by stating that it was
‚outside the scope of [his] expertise.‛ But in any event, we
conclude that the toxicologist’s testimony, as a whole, was
insufficient to establish causation as a matter of law. Both before
and after this statement, the toxicologist either qualified his
answers to trial counsel’s questions on causation as being
outside the scope of his expertise or indicated that he did not
know the answer to, or could not answer, trial counsel’s
questions. Indeed, for the majority of his testimony, the
4. As a general proposition, we note that it is rather unusual that
Plaintiffs would try to prevail on summary judgment based
primarily on the testimony of the defendant’s expert witness.
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Kerby v. Moab Valley Healthcare
toxicologist was rather adamant that the answers trial counsel
sought were outside the scope of his expertise.
¶19 Thus we cannot agree that the toxicologist changed his
view about the limitations presented by his credentials during
the course of his testimony. Therfore, we conclude that once the
toxicologist qualified his testimony by stating that it was outside
the scope of his expertise, the trial court was effectively entitled
to disregard any and all of the toxicologist’s subsequently
expressed opinions regarding causation. Given the qualified
manner in which the toxicologist gave his deposition testimony,
there was no definitive evidence establishing causation, i.e., that
the patient would have more likely survived if she had not been
discharged from the hospital even though the toxicologist
acknowledged the general accuracy of the proposition—
seemingly inarguable—that patients with significant respiratory
problems do better in hospitals than at home. Accordingly, the
trial court did not err when it denied Plaintiffs’ motions for
partial summary judgment.
II. Evidence of Incarceration
¶20 Plaintiffs argue that the trial court erred in allowing
testimony regarding the son’s incarceration because it was
unfairly prejudicial, in violation of rule 403 of the Utah Rules of
Evidence. The son was incarcerated when the patient died, and
before trial he had ‚disclaimed and waived any rights to any
settlement or any type of recovery at all in the wrongful death
case of his mother.‛
¶21 On the first day of trial, Plaintiffs moved the trial court to
disallow any mention of the son because ‚any discussion about
[him] would be prejudicial, a waste of time, a waste of judicial
resources and his relationship with [the patient] is not at issue in
this case.‛ Allen Memorial argued that ‚[the patient+’s
relationship with her children is what this case is about and her
relation[ship] with one of her children . . . has an impact on the
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Kerby v. Moab Valley Healthcare
relationship with all of her children.‛ Allen Memorial further
argued, ‚Generally speaking, . . . her relationship with each of
her kids will form the basis of the jury’s understanding of that
relationship and of their assessment of that value.‛ The trial
court denied Plaintiffs’ motion, the judge concluding, as
previously noted, ‚I don’t think you can carve one person out of
a family, as a matter of law, just because he doesn’t want
anything and determine that anything about his relationship is
completely irrelevant to the evaluation of all of the other
relationships that exist in the family.‛
¶22 Thereafter, during the trial, Allen Memorial elicited
testimony from one of the patient’s daughters that the son was
not living at home at the time of the patient’s death, that he
might have been incarcerated at the time, and that she herself
did not ‚have that great of a relationship‛ with the son. And
when asked, ‚Did your mom ever go to see your brother in
prison?,‛ she replied, ‚She never went and visited him in prison,
no.‛
¶23 Plaintiffs contend that evidence of the son’s incarceration
was irrelevant, that it ‚was there to pollute the trial,‛ and that
‚the jury verdict was likely impacted by the inappropriate
questions.‛ Noting that ‚the jury did not find causation,‛
Plaintiffs argue that ‚*w+hen one family member makes a
mistake, not all the family members should have to pay for that
mistake, yet that is exactly what happened in this trial.‛
¶24 The trial court ‚has broad discretion to admit or exclude
evidence.‛ Avalos v. TL Custom, LLC, 2014 UT App 156, ¶ 19, 330
P.3d 727. ‚To obtain relief based on alleged errors in the district
court’s evidentiary rulings, *Plaintiffs+ must shoulder the burden
of demonstrating both error by the district court and prejudice,
i.e., that there is a reasonable likelihood that a different result
would have been reached absent the error.‛ Anderson v. Larry H.
Miller Communications Corp., 2015 UT App 134, ¶ 30, 351 P.3d 832
(citations and internal quotation marks omitted).
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Kerby v. Moab Valley Healthcare
¶25 Under rule 403 of the Utah Rules of Evidence, ‚a court
may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.‛ Utah R.
Evid. 403. In this case, the trial court did not overtly undertake
the customary analysis required under rule 403. And we note
that had the court done so, it very likely would have concluded
that the limited probative value of the daughter’s testimony
about the son was substantially outweighed by the danger of
undue prejudice. The son was not looking to recover anything
from the lawsuit, and it would have been easy enough to
address his disclaimer without the daughter’s testimony or,
better yet, simply make no mention of him in front of the jury.
¶26 Nevertheless, Plaintiffs have not demonstrated any
resulting prejudice, i.e., that disallowing the testimony about the
son’s incarceration was reasonably likely to have led to a more
favorable result at trial. See Covey v. Covey, 2003 UT App 380,
¶ 21, 80 P.3d 553 (‚On appeal, the appellant has the burden of
demonstrating an error was prejudicial—that there is a
reasonable likelihood that the error affected the outcome of the
proceedings.‛) (citation and internal quotation marks omitted).
Although Plaintiffs imply that the jury did not find causation as
a result of the daughter’s testimony about the son’s incarceration
and the son’s strained relationship with the patient, we are not
persuaded. Specifically, we do not believe that a jury would
refrain from finding that Allen Memorial caused the patient’s
death based on information about the son’s incarceration and
her strained relationship with him. Indeed, as Plaintiffs
acknowledge, if anything the information about the son ‚would
have only gone to damages,‛ an issue the jury did not reach
given its finding on causation.
¶27 Moreover, Plaintiffs assume that the jury would judge
them and the patient harshly because the son was or had been an
imprisoned felon. However, even if we accept the accuracy of
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Plaintiffs’ premise that juries disfavor imprisoned felons, it
seems likely that the jurors would just as readily have viewed
Plaintiffs and the patient quite favorably. After all, they did the
‚right‛ thing, in the view cynically ascribed to the jury, by
having nothing to do with the son and apparently having done
all they could to distance themselves from him.
¶28 Ultimately, we are not persuaded that absent the few
references to the son’s incarceration, the jury would have found
in Plaintiffs’ favor. Consequently, because Plaintiffs have failed
to carry their burden of demonstrating that the trial court’s
alleged error was prejudicial, we conclude that the trial court did
not commit reversible error in allowing testimony about the
son’s incarceration.
CONCLUSION
¶29 The trial court did not err when it denied Plaintiffs’
motions for partial summary judgment. In addition, Plaintiffs
have not demonstrated that any errors in the trial court’s
evidentiary rulings were prejudicial. Accordingly, we affirm.
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