Andersen v. Lindenbaum

131 P.3d 1154, 2005 Colo. App. LEXIS 1512, 2005 WL 2298180
CourtColorado Court of Appeals
DecidedSeptember 22, 2005
DocketNo. 04CA1266
StatusPublished
Cited by1 cases

This text of 131 P.3d 1154 (Andersen v. Lindenbaum) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andersen v. Lindenbaum, 131 P.3d 1154, 2005 Colo. App. LEXIS 1512, 2005 WL 2298180 (Colo. Ct. App. 2005).

Opinion

WEBB, J.

In this medical negligence case based solely on lack of informed consent, plaintiffs, Nadine M. Andersen and Tony Andersen, her husband, appeal the summary judgment entered in favor of her treating physician, defendant, Stephen D. Lindenbaum, based on the two-year statute of limitations, § 13-80-102.5(1), C.R.S.2005. We affirm.

For purposes of summary judgment, the parties do not dispute that in 1994 Linden-baum treated Andersen for a left hip fracture. His treatment included surgery shortening her healthy right leg to make it even with her left leg, which had shrunk due to [1156]*1156the fracture. Andersen last saw Linden-baum in 1997. Thereafter, she began experiencing complications from the surgery on her right leg.

Andersen sued Lindenbaum in December 2002, alleging that he failed to inform her of nonsurgical alternatives to having the healthy leg shortened, which were set forth in an April 17, 1995 letter to Lindenbaum from an out-of-state physician with whom Andersen had consulted. The parties agreed to limit initial discovery to statute of limitation issues.

During Andersen’s deposition, defense counsel referred to the statute of limitations in various contexts. Later, he showed her a two-page, single spaced letter that she had written to the consulting physician on November 4, 2002. This letter contested information the physician had given to Andersen’s attorney based on her recollection of the 1995 consultation. The letter included the statement, “I have to tell you that I was incredibly shocked to see your letter dated April 17, 1995 in Dr. Lindenbaum’s file in January 2000” (emphasis supplied). She testified:

Q. Is the information — all of the information in [the November 4, 2002 letter] accurate to the best of your knowledge?
A. I have reread it, yes, sir.

Andersen was not asked a specific question about the January 2000 date referenced in her letter. Her attorney did not examine her about the date. She did not address this date in any change to her deposition under C.R.C.P. 30(e).

Several months later, Lindenbaum moved for summary judgment on the basis that Andersen admitted having seen the letter from the consulting physician in January 2000, more than two years before she had commenced suit, and therefore her lack of informed consent claim was untimely under § 13-80-102.5(1). In opposition to the motion, Andersen submitted an affidavit stating that the January 2000 date in her letter to the consulting physician “[w]as a typographical error and in fact, I affirmatively state that I did not know of [the consultant’s] letter dated April 17, 1995 until January of 2001 when I obtained documents from my Social Security file that was [sic] gathered by the Social Security Administration.” Andersen’s opposition also included an unauthenticated copy of a letter to her from the Social Security Administration confirming a November 17, 2000 appointment at which she was to provide information “to complete your Social Security claim.”

Notwithstanding Andersen’s affidavit, the trial court granted the summary judgment motion, explaining:

The Court finds that Plaintiff has changed her testimony. The Court finds that the Plaintiff was available for cross-examination during the deposition testimony, that the Plaintiff has access to the letter in question, in that Plaintiff authored and sent the letter and that the affidavit was not based on newly discovered evidence, and finally, that there was no confusion about the date on the letter, as was made clear through Plaintiff and Plaintiffs father-in-law’s authentication of the letter.

I.

We review de novo the trial court’s summary judgment ruling. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995).

Under C.R.C.P. 56(c), summary judgment is proper only in the absence of disputed issues of material fact and where the moving party is entitled to judgment as a matter of law.

We review all evidence properly before the trial court in the light most favorable to the nonmoving party, Redmond v. Chains, Inc., 996 P.2d 759 (Colo.App.2000), giving the nonmoving party the benefit of all reasonable inferences that may reasonably be drawn from the evidence, and we resolve all doubts as to the existence of a material fact against the moving party. Schold v. Sawyer, 944 P.2d 683 (Colo.App.1997).

Under the sham affidavit doctrine, a trial court may disregard a disputed issue of material fact in an affidavit opposing a summary judgment motion if the affidavit contradicts the affiant’s previous sworn deposition [1157]*1157testimony. Luttgen v. Fischer, 107 P.3d 1152 (Colo.App.2005).

After examining extensive federal precedent and noting the similarity between C.R.C.P. 56 and Fed.R.Civ.P. 56, another division of this court in Luttgen, supra, adopted the three factors used by federal courts in determining whether an affidavit presents only a sham factual issue:

[W]hether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain.

Luttgen v. Fischer, supra, 107 P.3d at 1156 (quoting Burns v. Bd. of County Comm’rs, 330 F.3d 1275, 1282 (10th Cir.2003)). Although Luttgen was decided during the pen-dency of this appeal, the trial court used the same factors, citing federal authority.

We consider the Luttgen division’s analysis of the sham affidavit doctrine well reasoned and apply it here. However, the Luttgen division did not address the scope of appellate review of a trial court’s decision to disregard an affidavit because it presents only a sham factual issue. The parties have cited no Colorado authority on this specific question, and we have found none.

We review evidentiary rulings in summary judgment proceedings for abuse of discretion. See, e.g., KH.R. v. R.L.S., 807 P.2d 1201 (Colo.App.1990); Annbruster v. Edgar, 731 P.2d 757 (Colo.App.1986).

The Tenth Circuit reviews sham affidavit rulings for abuse of discretion. See, e.g., Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965 (10th Cir.2001); Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc., 131 F.3d 874 (10th Cir.1997).

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Related

Andersen v. Lindenbaum
160 P.3d 237 (Supreme Court of Colorado, 2007)

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Bluebook (online)
131 P.3d 1154, 2005 Colo. App. LEXIS 1512, 2005 WL 2298180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andersen-v-lindenbaum-coloctapp-2005.