25CA1250 Dworakowski v Sisk 06-25-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1250 Routt County District Court No. 22CV30039 Honorable Brittany A. Schneider, Judge
Eva Dworakowski,
Plaintiff-Appellant,
v.
Michael S. Sisk, M.D.,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE LUM Welling and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 25, 2026
Andrew T. Brake, P.C., Andrew T. Brake, Denver, Colorado, for Plaintiff- Appellant
Hershey Decker Drake, P.L.L.C., C. Todd Drake, Lone Tree, Colorado, for Defendant-Appellee ¶1 Plaintiff, Eva Dworakowski, appeals the judgment entered
after a jury found in favor of defendant, Michael S. Sisk, M.D., on
Dworakowski’s medical malpractice claim. We affirm.
I. Background
¶2 Dworakowski sought care from Dr. Sisk for osteoarthritis of
the right hip and trochanteric bursitis. She began receiving
injections in her right hip bursa and taking anti-inflammatory
medication, both of which were ineffective. Dr. Sisk then
recommended a right hip replacement, which he performed on
August 11, 2020. During the procedure, Dworakowski’s greater
trochanter (a large, boney knob located at the upper, outer side of
the femur) fractured. Dr. Sisk repaired it intraoperatively and
completed the hip replacement surgery.
¶3 Dworakowski met with Dr. Sisk for a follow-up office visit on
August 25, 2020, and reported she was doing well. Dr. Sisk
ordered an x-ray of her right hip (August 25 x-ray) and noted there
was proper alignment and intact hardware. He memorialized the
visit and his impressions of the x-ray in an office note.
¶4 Three days later, Dworakowski’s right hip dislocated, and she
was treated at the emergency room. Dr. Sisk performed a revision
1 surgery on September 1, 2020. Afterward, Dworakowski continued
to have pain and attempted to treat it with several medications
before second revision surgery was performed by a different
doctor — Dr. William Howarth — a few months later.
¶5 Dworakowski filed suit against Dr. Sisk, asserting a claim for
negligence. The jury returned a verdict in Dr. Sisk’s favor.
Dworakowski moved for a new trial, which the trial court denied.
¶6 Dworakowski contends that the trial court erred by precluding
(1) testimony from her expert regarding the August 25 x-ray and
office note; (2) cross-examination of Dr. Sisk and his expert
regarding a declaration created by Dr. Sisk; (3) cross-examination of
Dr. Sisk regarding other civil suits against him, a 2012 disciplinary
letter, and his resignation of surgical privileges at a facility; and
(4) arguments in closing regarding the August 25 x-ray and Dr.
Sisk’s communications at the office visit.
II. Expert Disclosures
¶7 Dworakowski asserts the trial court erred by prohibiting her
expert witness from testifying regarding the August 25 x-ray and
office note. We disagree.
2 A. Additional Background
¶8 In support of her negligence claim, Dworakowski endorsed a
retained expert, Devone Mansour, D.O., who disclosed a report and
testified at trial. In his report, Dr. Mansour opined that “during
surgery on August 11, 2020, Dr. Sisk was negligent in his attempt
to stabilize and repair the Greater Trochanter in the proper
accepted fashion.” According to Dr. Mansour, “[t]he method used
by Dr. Sisk was inappropriate and destined to fail.” He specifically
analyzed and provided opinions about the August 11 surgery, the
imaging and surgical report dated the same day, and Dr. Sisk’s
revision procedure performed on September 1.
¶9 His report included the following language: “I will utilize the
images I provide with my report as exhibits to demonstrate and
show the jury the negligence of Dr. Sisk and show how Dr. Howarth
correctly performed surgery which was successful. I will explain
what the images show.” And it described the materials reviewed as
“Medical Records of Dr. Sisk, UC Health records relating to the
three admissions of Ms. Dworakowski, and related imaging.
Discovery responses of Dr. Sisk. First session of
Ms. Dworakowski’s deposition.” The report also attached images
3 dated August 21, 2019; August 11, 2020; August 28, 2020;
September 1, 2020; October 6, 2020; November 2, 2020; and
January 29, 2021. But it didn’t reference or discuss Dworakowski’s
August 25 office visit, the August 25 x-ray, or the office note.
¶ 10 At trial, Dworakowski’s counsel sought to question
Dr. Mansour regarding the August 25 x-ray and office note.
Dr. Sisk’s counsel objected, arguing that any of Dr. Mansour’s
opinions about the visit, office note, or x-ray should be excluded
under C.R.C.P. 37 because they hadn’t been disclosed. The trial
court sustained the objection and excluded the testimony.
B. Applicable Law and Standard of Review
1. C.R.C.P. 26 and 37
¶ 11 C.R.C.P. 26(a)(2)(B)(I) governs pretrial disclosure of experts —
like Dr. Mansour — who are retained or specifically employed to
provide expert testimony. The rule requires that a party shall
disclose, by written report signed by the witness, “a complete
statement of all opinions to be expressed and the basis and reasons
therefor” and “a list of the data or other information considered by
the witness in forming the opinions.” C.R.C.P. 26(a)(2)(B)(I)(a)-(b).
4 If an expert’s opinions and facts supporting the opinions are disclosed in a manner that gives the opposing party reasonable notice of the specific opinions and supporting facts, the purpose of the rule is accomplished. In the absence of substantial prejudice to the opposing party, this rule does not require exclusion of testimony merely because of technical defects in disclosure.
C.R.C.P. 26 cmt. 21. These disclosures must occur within the
deadlines laid out in C.R.C.P. 26(a)(2)(C), unless otherwise provided
by the court.
¶ 12 C.R.C.P. 37(c)(1) authorizes sanctions for failures to disclose
information required by C.R.C.P. 26(a) when such failure is not
substantially justified or harmless to the opposing party. Saturn
Sys., Inc. v. Militare, 252 P.3d 516, 523 (Colo. App. 2011). The
burden is on the party who failed to disclose to show substantial
justification or harmlessness. Todd v. Bear Valley Vill. Apartments,
980 P.2d 973, 978 (Colo. 1999). The question of harm is not
whether the undisclosed evidence is “potentially harmful to the
opposing side’s case,” but “whether the failure to disclose the
evidence in a timely fashion will prejudice the opposing party by
denying that party an adequate opportunity to defend against the
evidence.” Id. at 979.
5 2. Standard of Review
¶ 13 We review the trial court’s imposition of a discovery sanction
for an abuse of discretion. Cath. Health Initiatives Colo. v. Earl
Swensson Assocs., Inc., 2017 CO 94, ¶ 8. A court abuses its
discretion when its ruling is “manifestly arbitrary, unreasonable, or
unfair, or based on a misapprehension of the law.” Id.
C. Analysis
¶ 14 Dworakowski contends the trial court violated CRE 401 and
402 by excluding testimony from Dr. Mansour regarding the
August 25 x-ray and office note. She asserts that both were
disclosed as bases for her expert’s opinion, and she argues that the
x-ray was “critical” because it “showed the failure of the [first]
surgery; and the progressive greater trochanter displacement which
caused . . . Dworakowski’s hip displacement.”
¶ 15 However, while ten x-ray images were attached to
Dr. Mansour’s report, the August 25 x-ray wasn’t. And while the
report generally discloses that Dr. Mansour reviewed various
medical records and imaging, it doesn’t mention the August 25 x-
ray, office note, or visit, much less disclose that he believed the x-
ray showed the failure of the first surgery. Thus, Dr. Sisk didn’t
6 have reasonable notice that Dr. Mansour would offer opinions on
this visit and related documentation. See C.R.C.P. 26 cmt. 21.
Moreover, Dworakowski doesn’t explain why her failure to disclose
this information was justified or harmless. See Saturn Sys., 252
P.3d at 523; Todd, 980 P.2d at 978. For these reasons, we discern
no error.
III. Attorney-Client Privilege
¶ 16 Dworakowski next contends that the trial court improperly
prevented her counsel from asking Dr. Sisk and his expert,
Dr. Ronald R. Hugate, questions about the “origin, preparation,
delay[,] and circumstances” of Dr. Sisk’s declaration describing the
surgical techniques he used. The trial court concluded that this
inquiry invaded attorney-client privilege. We conclude that any
error is harmless.
A. Additional Background
¶ 17 Dr. Sisk’s declaration stated that on the day of the first
surgery, the medical center did not have a particular piece of
equipment (a “claw plate”) available for his use in repairing the
greater trochanter fracture, so instead he used a technique
involving screws, washers, sutures, and a “standard figure eight
7 tension band” (figure eight technique). He disclosed the declaration
on February 2, 2023. Four days later, Dr. Sisk disclosed his expert,
Dr. Hugate, and his report. Dr. Hugate’s report was dated the same
day as the declaration: January 27, 2023. The report relied on the
information contained in the declaration and opined that the figure
eight technique was “appropriate and within the standard of care
under the circumstances.” Dr. Hugate testified at trial. Dr. Sisk
disclosed himself as a nonretained expert and also testified.1
¶ 18 During Dr. Sisk’s cross-examination, Dworakowski’s counsel
questioned him about inconsistencies between his surgical report,
created just after the surgery, and the declaration, created more
than two years later. Specifically, counsel highlighted that the
surgical report didn’t discuss using the figure eight technique.
Then, counsel asked why Dr. Sisk decided to “put . . . that
description” into his declaration. Dr. Sisk’s counsel objected,
arguing the information was protected by attorney-client privilege.
Dworakowski’s counsel argued, “[W]hat I’m trying to establish is
ironically, on the same day that the expert’s report comes out, the
1 While Dr. Sisk was disclosed as a nonretained expert, it’s unclear
from the record whether he testified in his lay or expert capacity.
8 expert is able to say that he did that technique. And without
having that documented, he probably could not have said that.”
¶ 19 The trial court sustained the objection, explaining that counsel
could question Dr. Sisk about the “date of the affidavit, the date of
the report, and make any argument and make any inference you’d
like to in closing. But asking why [Dr. Sisk wrote the declaration] I
think does go into attorney-client privilege.”
¶ 20 Dworakowski’s counsel used a similar line of questioning with
Dr. Hugate, eventually asking him whether the declaration “came to
be as a result of maybe your requesting it be put in writing?” The
court concluded that this question also asked for attorney-client
privileged communications.
¶ 21 The attorney-client privilege protects confidential
communications between attorneys and their clients by preventing
their disclosure without the client’s consent. Wesp v. Everson, 33
P.3d 191, 196-98 (Colo. 2001). The privilege “extends only to
matters communicated by or to the client in the course of gaining
counsel, advice, or direction with respect to the client’s rights or
9 obligations.” Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000);
accord People v. Trujillo, 144 P.3d 539, 542 (Colo. 2006).
¶ 22 However, the privilege “protects only the communications to
the attorney; it does not protect any underlying and otherwise
unprivileged facts that are incorporated into a client’s
communication to his attorney.” Gordon, 9 P.3d at 1123. And it
applies only to “statements made in circumstances giving rise to a
reasonable expectation that the statements will be treated as
confidential.” People v. Tucker, 232 P.3d 194, 198 (Colo. App. 2009)
(quoting Wesp, 33 P.3d at 197). The party claiming the attorney-
client privilege has the burden of establishing it. Wesp, 33 P.3d at
197.
¶ 23 We review a trial court’s conclusions regarding the attorney-
client privilege for an abuse of discretion. Affiniti Colo., LLC v.
Kissinger & Fellman, P.C., 2019 COA 147, ¶ 23. A court abuses its
discretion when its ruling is “manifestly arbitrary, unreasonable, or
unfair, or based on a misapprehension of the law.” Cath. Health
Initiatives Colo., ¶ 8. However, a “determination of the proper legal
standard to be applied in a case and the application of that
10 standard to the particular facts of the case are questions of law that
we review de novo.” A.R. v. D.R., 2020 CO 10, ¶ 37.
¶ 24 Even if we assume, without deciding, that the trial court erred
by precluding testimony about why Dr. Sisk prepared the
declaration, any error is harmless. See C.A.R. 35(c).
¶ 25 Dworakowski argues, as she did below, that the purpose of
asking about the declaration’s origins was to undermine
Dr. Hugate’s conclusion that Dr. Sisk wasn’t negligent in repairing
the greater trochanter fracture that occurred during the first
surgery. She wanted to elicit testimony about “whether or not”
Dr. Hugate had asked for the declaration so that he could opine
that Dr. Sisk had used the figure eight technique — the appropriate
standard of care — to repair the fracture. And, although
Dworakowski doesn’t explicitly say as much, we presume that she
wanted the jury to infer that Dr. Sisk didn’t use the figure eight
technique and that he lied on his declaration so that Dr. Hugate
could render a favorable expert report.
11 ¶ 26 The trial court only precluded questions about whether
Dr. Hugate had requested that Dr. Sisk prepare the declaration.2
Dworakowski’s counsel extensively questioned Dr. Sisk about his
failure to mention the figure eight technique in his post-surgical
report and the subsequent inclusion of that information in the
declaration. This included the following colloquy:
[COUNSEL, discussing the post-surgical report]: Doctor, if you look at the description of the procedure . . . do you see where it says, [‘]This was repaired with Number 2 Ethibond and some 5.5-millimeter partially threaded cancellous screws with washers to secure that trochantic . . . fracture back to the made base and the femur.[’] Do you see that?
[DR. SISK]: Yes.
[COUNSEL]: That was your entire description of that repair, wasn’t it?
[COUNSEL]: Then, Doctor, on January 27, 2023, the same day as your expert report was
2 Dworakowski also asserts that the trial court erred by sustaining
Dr. Sisk’s objection to the question, “Took you several years to finally put in that description, didn’t it, Doctor?” We won’t address this argument because the court sustained Dr. Sisk’s objection that the question was argumentative, and Dworakowski doesn’t explain how the court erred in that respect. People v. Gingles, 2014 COA 163, ¶ 29 (declining to address undeveloped arguments).
12 published, you decided you wanted to do a better description, didn’t you?
Likewise, counsel elicited testimony from Dr. Hugate that the
declaration was the first time he “saw in writing” that a claw plate
wasn’t available and that Dr. Sisk has used the figure eight
technique. Further, Dr. Hugate acknowledged that the declaration
is dated the same day as his report and that he didn’t receive the
declaration until “a little bit after [his] report was done.”
¶ 27 This evidence amply permitted Dworakowski to undermine
Dr. Hugate’s opinion and cast doubt on whether Dr. Sisk adhered
to the standard of care. And we note that the trial court expressly
permitted counsel to draw “any inference you’d like to” regarding
the declaration in closing argument. Given that, we can’t see how
any error in precluding testimony about whether Dr. Sisk authored
the declaration at Dr. Hugate’s behest “substantially influenced the
outcome of the case.” In Interest of L.B., 2017 COA 5, ¶ 58.
IV. Impeachment of Dr. Sisk
¶ 28 Dworakowski next argues that the trial court reversibly erred
by preventing her counsel from cross-examining Dr. Sisk about a
13 pending medical malpractice case against him, a 2012 disciplinary
letter from the Colorado Medical Board, and Dr. Sisk’s resignation
of privileges from the relevant medical facility. She contends that
the pending case, resignation, and letter were admissible to
undermine Dr. Sisk’s credibility and expertise. We aren’t
persuaded.
¶ 29 Before trial, Dr. Sisk submitted a motion in limine to preclude
evidence or argument about prior lawsuits filed against him. The
trial court granted his motion, concluding that Dworakowski had
failed to demonstrate “that the prior incidents involved the same or
similar medical procedures to make testimony about those
incidents relevant.”
¶ 30 At trial, Dworakowski’s counsel sought to introduce a 2012
disciplinary letter from the Colorado Medical Board concerning a
knee surgery and Dr. Sisk’s April 2021 resignation of surgical
privileges from the relevant medical facility. Counsel argued he
would use the disciplinary letter to impeach any expert who gave
any opinion about Dr. Sisk’s record. And he said that he planned
to cross-examine Dr. Sisk using the resignation, arguing that it was
14 relevant because Dr. Sisk resigned four months after Dworakowski
made a complaint to the hospital.
¶ 31 Dr. Sisk’s counsel objected, arguing that the evidence was
irrelevant and prejudicial. The trial court sustained the objection
and explained that Dworakowski’s attorney may ask where Dr. Sisk
had privileges to practice at the time of trial, but not whether he
had resigned his privileges. The trial court also excluded the
disciplinary letter, reasoning that it didn’t concern the same or a
similar medical procedure and was therefore improper character
evidence under CRE 404(b).
¶ 32 To be admissible, evidence must be relevant. CRE 402.
Evidence is relevant when it has any tendency to make a fact of
consequence more or less probable than it would be without the
evidence. CRE 401. Still, even relevant evidence “may be excluded
if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay.” CRE 403. Consistent with
these principles, courts should allow wide latitude in cross-
examination of witnesses, but counsel should not be permitted to
15 inquire about “subjects which are totally unrelated to the resolution
of the issues in the trial.” Locke v. Vanderark, 843 P.2d 27, 31
(Colo. App. 1992).
¶ 33 That an expert has previously been sued for malpractice may
be relevant to impeach an expert’s credibility if the prior lawsuits
involve the same procedures as the ones at issue in the trial. See
Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1257 (Colo. 1994).
However, prior litigation that doesn’t involve the same medical
procedures isn’t relevant and injects confusion into the
proceedings. Locke, 843 P.2d at 31. And even if relevant,
inquiry into unrelated litigation requires, in fairness, that the witness be permitted to explain the nature, circumstances, and the decision, if any, in each case to rehabilitate the challenged credibility. Conversely, if any case was settled, explanation would be necessary regarding the reasons for and terms of any compromise agreement. As a result, this evidence would divert the jury’s attention from the dispositive issues in the case and trial preparation and cost could be extensive. In short, the “sideshow would take over the circus.”
Id. (citation omitted).
¶ 34 The scope and limits of cross-examination and the admission
or exclusion of evidence are within the sound discretion of the trial
16 court and will not be disturbed absent a showing of an abuse of
that discretion. Int’l Network, Inc. v. Woodard, 2017 COA 44, ¶ 42.
¶ 35 Dworakowski contends that the trial court erred by excluding
evidence about Olsen v. Sisk, Moffat County Case No. 22CV30025, a
medical malpractice case pending against Dr. Sisk at the time of
Dworakowski’s trial.3 Dworakowski argues she should have been
able to impeach Dr. Sisk’s credibility about his expertise in hip
replacements because this case also concerned a hip replacement.
We disagree, but for a slightly different reason than the one relied
on by the trial court. See Roque v. Allstate Ins. Co., 2012 COA 10,
¶ 7 (“We can affirm for any reason supported by the record, even
reasons not decided by the trial court.”).
¶ 36 Unlike cases in which prior lawsuits have been deemed
admissible for the purposes of impeaching credibility, Olsen was
still pending at the time of the trial, and there had been no finding
that Dr. Sisk was negligent in performing the surgery. Thus, the
3 To the extent Dworakowski asserts the trial court erred by
excluding evidence of other prior lawsuits against Dr. Sisk, we decline to address her argument because it’s undeveloped. Gingles, ¶ 29.
17 case had minimal probative value. And any probative value was
substantially outweighed by the danger of unfair prejudice and
confusing the issues. See CRE 403; Locke, 843 P.2d at 31.
¶ 37 Similarly, Dworakowski contends that the disciplinary letter
and resignation were also relevant to Dr. Sisk’s credibility as an
expert. But we agree with Dr. Sisk that the disciplinary letter is
irrelevant because it concerns a completely different procedure (a
knee replacement) and was issued eight years before Dworakowski’s
surgery.
¶ 38 As for Dr. Sisk’s resignation, Dworakowski’s counsel admitted
at trial that he could not “represent that the reason [Dr. Sisk]
resigned was because of” her procedure. See Hock, 876 P.2d at
1257; cf. Locke, 843 P.2d at 31. For this reason, we also agree with
Dr. Sisk that the court didn’t abuse its discretion by excluding this
evidence as irrelevant.
V. Closing Argument
¶ 39 Finally, Dworakowski contends the trial court improperly
limited the scope of her closing argument by prohibiting her from
(1) arguing what the August 25 x-ray showed and (2) implying or
arguing that Dr. Sisk was negligent because he failed to tell her that
18 her hip was unstable at her August 25 office visit. We discern no
error.
¶ 40 Before closing arguments, Dr. Sisk sought to exclude any
reference to negligence in his communications with Dworakowski
because she hadn’t introduced any evidence that his
communications were negligent. Dworakowski argued that any
closing remarks about Dr. Sisk’s communication with her, or lack
thereof, would target his credibility, not negligence. The trial court
ruled that counsel could refer to Dr. Sisk’s communications in
closing argument for credibility purposes only.
¶ 41 Similarly, Dr. Sisk sought to exclude any criticism of his
interpretation of the August 25 x-ray because Dworakowski hadn’t
introduced any evidence that his interpretation was negligent. The
trial court ruled Dworakowski’s counsel could show the x-ray but
cautioned counsel against drawing any conclusions that were
unsupported by the record.
¶ 42 During closing argument, Dworakowski’s counsel used a
series of slides. One of the slides contained the following text:
EVA DWORAKOWSKI
19 Placed her trust in Dr. Sisk
8/11/2020 Surgery – Was not told that the surgery was unsuccessful – Alyssa Minor told her that Dr. Sisk had cut too far into her femur, which no one has denied in this case – Was led to believe that she would recover – Alyssa Minor did not testify
8/25/2020 Office Visit – Was misled – not told that Imaging showed that the Screws had come out of the bone and her hip was unstable
8/28/2020 Hip dislocated and she had to be transported to the ER.
9/1/2020 2nd Surgery by Dr. Sisk – Negligently performed
11/3/2020 Last visit with Dr. Sisk – Not told that surgery had failed, and he told her about the Heterotopic Ossification after it had reached the point of interfering with her ability to function.
12/18/2020 Surgery by Dr. Howarth
¶ 43 Dr. Sisk’s counsel objected to the slide, arguing that it violated
the court’s order about the content of closing argument. The court
ordered counsel take the slide down and instructed the jury to
disregard it.
¶ 44 During closing argument, counsel may reference “the facts in
evidence and any reasonable inferences” that can be drawn from
20 them. Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005).
This includes highlighting pieces of evidence and explaining their
significance to the case. Id. But “[c]losing argument can never be
used to mislead or unduly influence the jury.” Id. at 1048-49. And
counsel may not introduce new evidence or reference facts not in
evidence during closing argument. People v. Vergari, 2022 COA 95,
¶ 32.
¶ 45 “A trial court’s decisions regarding the scope of closing
arguments will not be disturbed absent an abuse of discretion.”
Blood v. Qwest Servs. Corp., 224 P.3d 301, 322 (Colo. App. 2009),
aff’d, 252 P.3d 1071 (Colo. 2011).
¶ 46 Dworakowski argues that she was entitled to argue that
Dr. Sisk had “misled” her about her recovery because it was a
reasonable inference drawn from the evidence. But Dworakowski
doesn’t dispute that she didn’t present any evidence that Dr. Sisk
was negligent in his communications with her, including at the
August 25 office visit. Thus, the trial court didn’t abuse its
discretion by ruling that the slide inappropriately suggested as
much.
21 ¶ 47 Dworakowski also contends that (1) the part of the slide
describing the August 25 x-ray was also a reasonable inference
drawn from the evidence and (2) the court erred by not allowing her
to argue that the August 25 x-ray “showed that her greater
trochanter had continued to be dislocated.” But although the x-ray
itself was an exhibit at trial, counsel’s lay interpretation of it isn’t a
reasonable inference that can be drawn from the image. Any such
interpretation required expert testimony, which Dworakowski didn’t
present. Accordingly, the trial court didn’t abuse its discretion by
excluding the slide and related argument from Dworakowski’s
closing.
VI. Disposition
¶ 48 The judgment is affirmed.
JUDGE WELLING and JUDGE SCHOCK concur.