Svendsen v. Robinson

94 P.3d 1200
CourtColorado Court of Appeals
DecidedMarch 25, 2004
DocketNo. 03CA0365
StatusPublished

This text of 94 P.3d 1200 (Svendsen v. Robinson) 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
Svendsen v. Robinson, 94 P.3d 1200 (Colo. Ct. App. 2004).

Opinion

Opinion by

Judge GRAHAM.

Plaintiff, Linda Svendsen, appeals the order striking her expert witness and the summary judgment entered in favor of defendants, Walter G. Robinson, M.D. and Woodridge Orthopaedic and Spine Center, P.C., on her medical malpractice claim. We affirm.

I.

Plaintiff contends that the trial court erred in granting defendants’ motion to strike her standard of care expert without affording her an opportunity to respond to the motion. We perceive no reversible error.

Defendants filed a motion to strike plaintiffs standard of care expert for failure to comply with C.R.C.P. 26. The court granted the motion before time had expired for plaintiff to file her response, and defendants then filed a motion for summary judgment. After receiving the court’s order, plaintiff filed a motion for reconsideration and a response to [1202]*1202defendants’ motion to strike. The trial court set the matter for hearing. Before the hearing, plaintiff filed a supplement to her motion for reconsideration, a supplemental endorsement of her standard of care expert, and a response to defendants’ motion for summary judgment.

At the hearing, plaintiff explained how her expert disclosures complied with C.R.C.P. 26, or alternatively, why noncompliance was substantially justified or harmless to defendants. After considering all the motions, the court upheld its order striking plaintiffs standard of care expert and entered summary judgment in favor of defendants.

We conclude that, although the court entered its order to strike prematurely, plaintiff was not prejudiced because she had an adequate opportunity to show why the motion should not have been granted. Any error was therefore harmless. See Ferrera v. Nielsen, 799 P.2d 458 (Colo.App.1990)(no error where plaintiff requested and received an opportunity to respond in its summary judgment order to the new issue raised by the trial court).

II.

Plaintiff next contends that the trial court improperly precluded the testimony of her expert witness under C.R.C.P. 37(c) for failure to comply with the disclosure requirements of C.R.C.P. 26(a)(2)(B)(I). We find no error.

The trial court concluded that: (1) plaintiffs failure to comply with C.R.C.P. 26(a)(2)(B)(I) precluded defendants from fully and effectively preparing for the expert’s deposition; (2) plaintiff did not establish that the failure was harmless; (3) the preparation of this case was expensive, and any further delay enabling plaintiff to comply with all pretrial requirements would cause defendants to incur substantial duplicative costs and fees; (4) plaintiff was aware of the disclosure requirements and did not establish difficulty obtaining the information from the experts; and (5) there was no way to easily identify or, more importantly, locate the expert’s prior testimony because the expert disclosures did not provide the jurisdiction, venue, or case numbers, nor was there information regarding where in the United States the listed parties and attorneys might be located.

We review the trial court’s decision to preclude an expert witness for abuse of discretion. Carlson v. Ferris, 58 P.3d 1055 (Colo.App.2002), aff'd, 85 P.3d 504 (Colo. 2003); Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App.1991).

Discovery obligations and the expert disclosure requirements of C.R.C.P. 26(a) are enforced by the sanction mechanisms of C.R.C.P. 37. C.R.C.P. 37(c) provides for the preclusion of nondisclosed evidence unless the nondisclosing party establishes that its failure to disclose was either substantially justified or harmless. Todd v. Bear Valley Vill. Apartments, 980 P.2d 973 (Colo.1999).

C.R.C.P. 26(a)(2)(B)(I) requires that witnesses retained to provide expert testimony submit a disclosure report containing, among other things, “a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.” Failure to comply with this rule warrants precluding the expert’s testimony. C.R.C.P. 37(c)(1); Carlson v. Ferris, supra.

The identification of cases in which an expert has previously expressed opinions should include, at a minimum, the name of the court or administrative agency where the testimony occurred, the names of the parties, the case number, and whether the testimony was by deposition or at trial. Carlson u Ferris, supra.

Here, plaintiffs expert initially provided defendants with a “sales by customer” list that included the attorney’s name and firm, the date of the testimony, the amount charged, and in some instances, the case name. The list also contained a numerical code, which, as the expert later explained during his deposition, identified whether it was arbitration or trial testimony. The list did not contain ease numbers, the name of the court or agency, or the venue or state where the attorneys were located. Furthermore, this list only included testimony taken at trials and arbitrations, not at depositions.

Because of the insufficient disclosures, in connection with their notice of deposition sent to plaintiffs expert, defendants request[1203]*1203ed, among other things, “a listing of deposition and trial testimony expert has provided over the past four years.” Defendants explained that plaintiff was required to provide this information under C.R.C.P. 26(a)(2)(B) and that it was included in the deposition notice because the expert endorsement was insufficient under Carlson v. Ferris, supra. Defendants stated that they would not require the expert to supply the additional information that was requested with the notice of deposition if the expert complied with C.R.C.P. 26 before his deposition. Defendants warned that if the proper disclosures were not made, they would file a motion to strike the expert witness.

Defendants were not given any information regarding the expert’s prior deposition testimony until the day of his deposition in California. That deposition list, however, consisted only of the date and the attorney’s name. Again, there was no case number, ease name, court, or party name listed. This deposition list was never supplemented.

We agree with the trial court that the disclosures of the expert failed to meet the mínimums of C.R.C.P. 26(a)(2)(B)(I) either in the initial or supplemental disclosures, and plaintiff provided no justification for the noncompliance. The expert had a list of the attorneys’ names, as well as sufficient other information so that, with some diligent effort, he could have supplied the information required in C.R.C.P. 26. See Carlson v. Ferris, supra.

Nor was the failure to comply harmless. Failure to comply with the mandate of C.R.C.P. 26 is harmless when there is no prejudice to the party entitled to disclosure. The purpose of providing a list of prior cases is to enable opposing counsel to obtain prior testimony of the expert that may be relevant to the proposed testimony in the pending case and to enable a party to prepare for cross-examination at a deposition or a trial.

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Related

Melville v. Southward
791 P.2d 383 (Supreme Court of Colorado, 1990)
Sheid v. Hewlett Packard
826 P.2d 396 (Colorado Court of Appeals, 1991)
Carlson v. Ferris
58 P.3d 1055 (Colorado Court of Appeals, 2002)
Miller v. ROWTECH, LLC
3 P.3d 492 (Colorado Court of Appeals, 2000)
Ferrera v. Nielsen
799 P.2d 458 (Colorado Court of Appeals, 1990)
Carlson v. Ferris
85 P.3d 504 (Supreme Court of Colorado, 2003)
Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board
901 P.2d 1251 (Supreme Court of Colorado, 1995)
Todd v. Bear Valley Village Apartments
980 P.2d 973 (Supreme Court of Colorado, 1999)
Palmer v. Rhodes Machinery
187 F.R.D. 653 (N.D. Oklahoma, 1999)
Van Nguyen v. IBP, Inc.
162 F.R.D. 675 (D. Kansas, 1995)

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Bluebook (online)
94 P.3d 1200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/svendsen-v-robinson-coloctapp-2004.