Hill v. Emergency Medicine of Idaho: Idaho rejects children’s loss-of-parental-consortium (nonfatal injury) and deems generic “hindsight bias” expert testimony irrelevant and prejudicial

Court: Idaho Supreme Court

Date: March 27, 2025

Docket No.: 50686-2023

Opinion by: Justice Zahn

Introduction

In Hill v. Emergency Medicine of Idaho, P.A., the Idaho Supreme Court resolved two significant questions at the intersection of tort and evidence law. First, the Court declined to recognize a common-law cause of action by children for loss of parental consortium when a parent suffers a non-fatal injury, reaffirming that such expansions of tort duties and damages are matters for the legislature. Second—and most consequential for trial practice—the Court held that the admission of a defense expert’s generic “hindsight bias” testimony was error because it was irrelevant under Idaho Rules of Evidence 401 and 702, invaded the province of the jury’s common sense, and prejudiced the plaintiffs, requiring a new trial.

The case arises out of a medical malpractice trial in which Jon Hill alleged he was misdiagnosed with peripheral vertigo rather than a stroke in St. Luke’s Meridian emergency department by Dr. Stuart Clive, an EMI-employed physician. After a defense verdict, the Hills appealed, challenging (1) dismissal of their children’s claims, (2) two evidentiary rulings, and (3) denial of a new trial for juror nondisclosure. The Supreme Court affirmed dismissal of the children’s claims, reversed on the hindsight-bias testimony, and remanded for a new trial on Jon and Shawna Hill’s remaining claims. The Court did not reach the remaining appellate issues in light of the remand.

Summary of the Opinion

No loss-of-parental-consortium (nonfatal injury): Idaho does not recognize a child’s common-law claim for loss of parental consortium arising from a nonfatal injury to a parent. Creating such a cause of action implicates policy choices best left to the legislature. The district court’s judgment on the pleadings dismissing the children’s claims was affirmed.
Hindsight-bias expert testimony inadmissible as presented: The district court erred in overruling plaintiffs’ relevancy objections to a defense expert’s testimony about “hindsight bias.” The testimony did not concern the facts, standard of care, or any disputed issue, and offered no specialized knowledge beyond jurors’ common experience. Its erroneous admission prejudiced the Hills’ substantial rights. The judgment was vacated and the case remanded for a new trial.
Unreached issues: Because a new trial was ordered, the Court did not decide the plaintiffs’ other evidentiary challenge (exclusion of certain testimony by Mrs. Hill) or the motion for new trial based on juror nondisclosure.
Attorney fees on appeal: Denied to defendants under Idaho Code § 12-121 because they were not the prevailing party.

Case Background

On May 28, 2017, 44-year-old Jon Hill presented to St. Luke’s Meridian ER with dizziness, nausea, weakness, and balance problems. He was evaluated by Dr. Stuart Clive, an emergency physician employed by Emergency Medicine of Idaho, P.A. (EMI). Dr. Clive diagnosed peripheral vertigo and discharged Mr. Hill. The next day, Mr. Hill was found unresponsive and later diagnosed with a stroke, resulting in severe physical and cognitive impairments.

Jon and Shawna Hill, along with their children, sued EMI, Dr. Clive, and St. Luke’s, alleging negligence, gross negligence, and reckless misconduct, with vicarious liability claims against the institutional defendants. The district court dismissed the children’s claims (treated as claims for loss of parental consortium). After a ten-day trial against EMI and Dr. Clive, the jury returned a defense verdict. The Hills appealed.

Detailed Analysis

A. Precedents and Authorities Cited

1) Loss of parental consortium (nonfatal injury)

Conner v. Hodges, 157 Idaho 19, 333 P.3d 130 (2014): The Court reaffirmed that loss of consortium is traditionally “predicated upon the existence of a marriage” and declined to extend it to non-marital partners, emphasizing separation-of-powers concerns—expansion of the cause of action involves policy judgments “best left to the legislature.” Hill relies on Conner’s reasoning to decline extending consortium to the parent-child relationship for nonfatal injury.
Horner v. Sani-Top, 143 Idaho 230, 141 P.3d 1099 (2006): Recognized that in wrongful death, children may recover general damages for loss of companionship. Hill distinguishes wrongful-death damages under statute from a new common-law claim in nonfatal injury cases.
Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952): Allowed recovery for loss of “comfort, society and companionship” in the parent-child context, but that holding rested on a statutory damages provision (then I.C. § 5-311, now amended to govern wrongful death). Hill clarifies that Hayward does not support a common-law parental-consortium claim.
Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974): Recognized spousal loss-of-consortium claims; did not address children’s claims. Hill underscores that Rindlisbaker offers no authority for child-based consortium claims.
Federal district court predictions: Green v. A.B. Hagglund & Soner, 634 F. Supp. 790 (D. Idaho 1986), and Garriott v. W. Med. Assocs., PLLC, 2017 WL 3015872 (D. Idaho July 14, 2017) declined to recognize children’s loss-of-parental-consortium claims, predicting Idaho law. Hill aligns Idaho Supreme Court jurisprudence with those federal predictions.
Treatises: The Court cites authorities noting the common law did not recognize children’s loss-of-parental-consortium claims and that a majority of jurisdictions still decline such claims for nonfatal injuries (Causes of Action 2d; Am. Jur. Proof of Facts 3d).

2) Evidentiary standards and error review

Idaho Rules of Evidence: I.R.E. 401 (relevance), 402 (admissibility), 702 (expert testimony must aid the trier of fact via specialized knowledge).
Relevance reviewed de novo: Martinez v. Carretero, 173 Idaho 87, 539 P.3d 565 (2023).
Definition of relevance: Slack v. Kelleher, 140 Idaho 916, 104 P.3d 958 (2004).
Common sense and expert testimony: Tech Landing, LLC v. JLH Ventures, LLC, 168 Idaho 482, 483 P.3d 1025 (2021) (courts may exclude expert opinions on matters within jurors’ “common sense and normal experience”).
Preservation of objections: Nelsen v. Nelsen, 170 Idaho 102, 508 P.3d 301 (2022) (specific ground must be stated or apparent); Ackerschott v. Mountain View Hosp., LLC, 166 Idaho 223, 457 P.3d 875 (2020) (failure to object for lack of foundation waives that issue).
Harmless error and substantial rights: Slack (harmless error standard); Martinez; Bromund v. Bromund, 167 Idaho 925, 477 P.3d 979 (2020) (a right is substantial if it could affect outcome).
Objection rationale: Stewart v. City of Idaho Falls, 61 Idaho 471, 103 P.2d 697 (1940) (timely, specific objections allow trial courts to prevent or cure error and preserve rulings for review).
Pleadings and summary judgment standards: Elsaesser v. Gibson, 168 Idaho 585, 484 P.3d 866 (2021) (Rule 12(c) reviewed like summary judgment); I.R.C.P. 56(a).
Attorney fees on appeal: I.C. § 12-121 (fees to prevailing party only when the other side acted frivolously, unreasonably, or without foundation).

B. The Court’s Legal Reasoning

1) No common-law cause of action for children’s loss of parental consortium (nonfatal injury)

The Court affirmed dismissal of the children’s claims, which the parties and district court treated as claims for loss of parental consortium. The Court observed:

Such claims were not recognized at common law, and the Idaho Supreme Court has never adopted them.
Idaho precedent recognizes spousal consortium (Summerfield; Rindlisbaker) and, by statute, certain wrongful-death damages for children’s loss of companionship (Horner; I.C. § 5-311), but that does not translate into a new common-law cause of action for nonfatal injuries.
While the Hills cited modern statutes reflecting Idaho’s policy of protecting parent-child relationships (e.g., I.C. §§ 32-1013, 32-102, 32-1003), none creates a tort claim for parental consortium in nonfatal injury cases. Creating a new cause of action would require policy balancing and legislative judgment. The Court emphasized judicial restraint—it does not “legislate from the bench.”

In short, Conner’s separation-of-powers rationale strongly guided the Court’s refusal to extend tort liability and damages beyond established common law. The Court invites the legislature to act if it wishes to recognize such a claim.

2) “Hindsight bias” expert testimony: irrelevant and prejudicial

The defense called an emergency physician expert, Dr. Opeolu M. Adeoye, who testified solely about “hindsight bias” in the abstract: that reviewers often have more information than the treating physician and, after poor outcomes, tend to judge more harshly. The testimony did not address the case facts or the local standard of care, despite the defense’s expert disclosure indicating he would do so. Plaintiffs objected for relevance; the district court overruled those objections.

On appeal, the Court held:

Preservation: Plaintiffs did not preserve a “lack of foundation” argument because they failed to object on that ground at trial. But their relevancy objections were preserved.
Relevance and Rule 702: The hindsight-bias testimony was not tied to any disputed fact, the standard of care, or case-specific opinions. It therefore did not make any material fact more or less probable (I.R.E. 401–402) and offered no “scientific, technical, or other specialized knowledge” helpful to jurors (I.R.E. 702). The concept that “hindsight is 20/20” lies within the “common sense and normal experience” of jurors (Tech Landing), not a domain requiring expert help.
Prejudice to substantial rights: The defense wove “hindsight bias” throughout opening and closing, and the expert’s imprimatur turned the theme into pseudo-proof. The Court characterized the testimony as an improper “expert endorsement” of a legal argument. Because the error could have affected the outcome, it affected the Hills’ substantial rights and required reversal for a new trial.

Notably, during a bench conference the trial court acknowledged that had it known the defense would elicit only generic hindsight-bias opinions untethered to the standard of care or facts, it might not have allowed the testimony at all. The Supreme Court’s opinion formalizes that instinct into a rule of evidence: generic bias lectures from experts, disconnected from factual disputes and offering no specialized aid, are inadmissible.

C. Impact and Implications

1) Tort law: parental-consortium claims

Clarification of Idaho law: The Court expressly declines to recognize children’s claims for loss of parental consortium in nonfatal injury cases. Prior ambiguity (including incorrect inferences from Hayward, Conner, or Rindlisbaker) is resolved. Absent legislative action, such claims are not cognizable in Idaho.
Legislative prerogative: Stakeholders seeking damages for children’s relational harms in nonfatal injury cases must pursue a statutory remedy. The Court signposts separation-of-powers boundaries and signals deference to the Legislature on expansions of duty and damages.

2) Evidence law and trial practice: “hindsight bias” testimony

Expert testimony boundaries: Idaho trial courts should exclude generic “hindsight bias” testimony offered by experts when it:
- Is untethered to the case’s facts or standard-of-care issues;
- Adds nothing beyond common juror experience; and
- Functions as advocacy cloaked in expert garb.
Scope of argument: Lawyers may still argue, in opening or closing, that a case should not be judged with 20/20 hindsight. But they may not bolster that theme by proffering a stand-alone expert “tutorial” that contributes no specialized knowledge and risks unfairly amplifying a legal argument.
Expert disclosures and trial strategy: Disclosures that preview standard-of-care testimony but then pivot at trial to generic bias themes risk exclusion and, if admitted over objection, reversal. Counsel must ensure that expert opinions at trial match disclosed topics and are moored to disputed facts.
Beyond medical malpractice: The reasoning applies broadly to professional negligence, product liability, and other civil cases where parties may be tempted to call “cognitive bias” experts. The opinion signals Idaho’s skepticism toward using experts for concepts within ordinary common sense unless those opinions are concretely applied and genuinely assist the jury.

Complex Concepts Simplified

Loss of consortium: Damages for the loss of love, companionship, society, and services arising from injury to a close family member. Historically recognized in Idaho for spouses; by statute, certain relational damages are recoverable in wrongful death. The Court declines to extend this common-law claim to children for a parent’s nonfatal injury.
Respondeat superior: A doctrine making an employer liable for torts of an employee committed within the scope of employment. EMI’s liability tracks the negligence claim against Dr. Clive.
Judgment on the pleadings (Rule 12(c)) vs. summary judgment: A Rule 12(c) motion tests the legal sufficiency of claims on the pleadings; Idaho reviews it under the summary judgment standard when no material facts are disputed.
Relevance (I.R.E. 401–402): Evidence is relevant if it tends to make a material fact more or less probable. Irrelevant evidence is inadmissible.
Expert assistance (I.R.E. 702): Expert testimony must provide specialized knowledge that helps jurors resolve disputes. If jurors can rely on common sense without expert help, the testimony may be excluded.
Foundation vs. relevance objections: “Foundation” challenges whether an expert’s opinions are properly supported and connected to the case; “relevance” challenges whether the testimony makes a material fact more or less probable. Each ground must be clearly stated to preserve it for appeal.
Harmless error and substantial rights: Erroneous admission of evidence warrants reversal only if it affects substantial rights—i.e., it could have influenced the outcome.
Hindsight bias: A well-known cognitive tendency to view past decisions as obviously right or wrong after outcomes are known. The Court held that jurors understand this concept without expert assistance unless the testimony provides case-specific, specialized insights.

Practical Guidance

For plaintiffs

Object to “hindsight bias” expert testimony on both relevance (I.R.E. 401/402/702) and foundation if it is not tied to the facts, standard of care, or a reliable methodology. Preserve each ground explicitly.
If the defense discloses case-specific expert opinions but at trial elicits only generic bias commentary, renew objections and request a curative instruction or exclusion. Consider moving in limine to preclude such testimony pretrial.
Frame closing arguments to highlight that expert “bias” lectures are advocacy, not evidence, and that the jury must decide based on the contemporaneous information and standard-of-care evidence.

For defendants

If addressing hindsight concerns, do so through case-specific standard-of-care experts who explain what information was available to the clinician at the time, how reasonable differentials are formulated, and why particular tests or imaging were or were not indicated.
Avoid standalone “cognitive bias” tutorials by experts unless they are concretely applied to disputed facts and genuinely assist the jury beyond common sense.
Ensure expert testimony at trial conforms to disclosures; deviations can invite exclusion or, if admitted, appellate reversal.

For trial courts

Apply I.R.E. 401/402/702 gatekeeping rigorously to generic bias testimony. Exclude opinions that are not connected to material facts or do not provide specialized assistance.
Consider permitting parties to argue “no 20/20 hindsight” in openings/closings while precluding expert endorsements of that legal argument.
Be attentive to prejudice where an expert’s imprimatur may transform advocacy themes into pseudo-facts.

For the Legislature

If Idaho public policy favors allowing children to recover for loss of parental consortium in nonfatal injury cases, a statutory cause of action should be considered. Hill reaffirms the Court will not create this claim judicially.

Unresolved or Unreached Issues

Excluded testimony by Mrs. Hill: The Court did not reach whether exclusion of her testimony about a doctor-friend’s advice (and her relay of that advice to Dr. Clive) was error.
Juror nondisclosure: The Court did not decide whether a juror’s undisclosed friendship with plaintiffs’ counsel warranted a new trial under I.R.C.P. 59(a)(1)(c), because reversal was already required on the evidentiary ground.

Conclusion

Hill v. Emergency Medicine of Idaho is a dual-significance decision. On the tort side, the Idaho Supreme Court definitively declines to recognize a child’s common-law claim for loss of parental consortium arising from a nonfatal injury to a parent, reserving any such policy expansion to the Legislature. On the evidence side, the Court articulates a clear limitation on expert testimony: generic “hindsight bias” opinions, detached from the facts and standard-of-care questions and offering no expertise beyond jurors’ common experience, are irrelevant and prejudicial. Because the defense’s hindsight-bias expert testimony permeated the trial and could have influenced the verdict, the Court vacated the judgment and remanded for a new trial.

The decision will immediately influence Idaho trial practice, particularly in medical malpractice and other professional negligence cases. Parties should confine expert opinions to specialized, fact-driven analyses that help jurors resolve disputed issues, and avoid using experts as conduits for legal argument. On consortium, the ruling clarifies Idaho law while inviting legislative consideration if broader remedies for children’s relational harms are to be recognized.