Whitt v. Colorado Retina Associates

• Court: Colorado Court of Appeals
• Decided: January 29, 2026
• Docket: 24CA1256
• Status: Unpublished

Opinion

24CA1256 Whitt v Colorado Retina 01-29-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1256 City and County of Denver District Court No. 22CV33294 Honorable Andrew J. Luxen, Judge

Yvonne Whitt,

Plaintiff-Appellee and Cross-Appellant,

v.

Colorado Retina Associates, PLLC,

Defendant-Appellant and Cross-Appellee,

and

David Johnson, MD; Brian Joondeph, MD; Curtis Hagedorn, MD; and Mimi Liu, MD,

Defendants and Cross-Appellees.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division VII Opinion by JUDGE PAWAR Gomez and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 29, 2026

Leventhal Puga Braley P.C., Jim Leventhal, Nathaniel E. Deakins, Jed Greenblatt, Robert S. Peck, Denver, Colorado, for Plaintiff-Appellee and Cross- Appellant

Hershey Decker Drake, PLLC, C. Todd Drake, Lone Tree, Colorado, for Defendant-Appellant and Cross-Appellee and Defendants and Cross-Appellees *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 In this negligence action, plaintiff, Yvonne Whitt, sued a health

care corporation and the individual doctors involved in her care

after she lost her eye following eye surgery. A jury found in favor of

Whitt on one of her claims against the corporation, defendant

Colorado Retina Associates, PLLC (CRA), and in favor of the

individual doctors, defendants Dr. David Johnson, Dr. Brian

Joondeph, Dr. Curtis Hagedorn, and Dr. Mimi Liu, on the claims

against them. CRA appeals the judgment against it, and Whitt

cross-appeals the judgment in favor of the individual doctors. We

reverse the judgment against CRA and affirm the judgment in favor

of the doctors.

I. Background

¶2 Whitt underwent surgery at CRA to address floaters in her left

eye. The day after surgery, Whitt had an in-person post-op follow

up with Dr. Joondeph, one of the doctors associated with CRA.

Later that evening, Whitt called CRA several times reporting

decreased vision in her eye. The parties dispute whether she also

reported worsening pain — a symptom of infection that all parties

agree should be addressed immediately.

1 ¶3 When Whitt called, she spoke with Curtis Brobst, a CRA triage

technician. Brobst told her she likely had bleeding in the eye, a

common post-operative condition. Brobst also reached out to one

of CRA’s on-call doctors, Dr. Liu, who suggested it was safe for

Whitt to be seen the following day. Brobst scheduled Whitt to see a

doctor the next morning.

¶4 Whitt developed a serious infection and saw three other

doctors for follow-up treatment. She ultimately lost her eye several

months later. She brought negligence claims against the four

doctors who treated her, based on their failure to timely evaluate

and diagnose the infection. She also brought two negligence claims

against CRA — one for vicarious liability related to Brobst’s conduct

and one for direct negligence.

¶5 The case proceeded to trial, where a jury rejected Whitt’s

vicarious liability claim against CRA as well as her negligence

claims against the individual doctors. The jury found CRA liable for

direct negligence, however, and awarded Whitt $902,126.00 in

damages.

¶6 CRA appeals, arguing it was entitled to a directed verdict on

Whitt’s direct negligence claim as a matter of law because the

2 corporate practice of medicine doctrine prohibits a corporation from

interfering with — or being held liable for — a doctor’s independent

medical judgment. Whitt cross-appeals the judgment in favor of the

individual doctors, arguing the trial court’s evidentiary errors

unfairly skewed the jury’s verdict in their favor.

¶7 We conclude that CRA was entitled to a directed verdict on

Whitt’s direct negligence claim. We disagree with Whitt’s

arguments on cross-appeal. We therefore reverse the judgment in

part, affirm it in part, and remand for entry of a directed verdict.1

II. Directed Verdict

A. Standard of Review and Governing Law

¶8 The corporate practice of medicine doctrine provides that a

corporation cannot practice medicine. Est. of Harper v. Denv.

Health & Hosp. Auth., 140 P.3d 273, 275 (Colo. App. 2006). As a

result, a corporation may not supervise physicians, perform medical

services, or otherwise interfere with a physician’s independent

medical judgment. Id.; see Smith v. Surgery Ctr. at Lone Tree, LLC,

1 Whitt does not appeal the judgment entered in favor of CRA on her

negligence claim based on vicarious liability. Accordingly, that portion of the judgment is undisturbed.

3 2020 COA 145M, ¶ 19. Likewise, a corporation may not be held

liable for lapses in a physician’s professional judgment. Smith,

¶ 19. “The doctrine thus shields corporations from vicarious

liability for the negligent acts of their physician employees.” Est. of

Harper, 140 P.3d at 275.

¶9 To prevail on a negligence claim, a plaintiff must show that (1)

the defendant owed her a legal duty of care; (2) the defendant

breached that duty; (3) the plaintiff suffered injury; and (4) the

cause of that injury was the defendant’s conduct. Smith, ¶ 9.

¶ 10 We review a trial court’s denial of a motion for directed verdict

de novo. Id. at ¶ 8.

B. Discussion

¶ 11 As discussed, Whitt brought two separate negligence claims

against CRA — one for vicarious liability and one for direct

negligence. The unsuccessful vicarious liability claim is not at

issue on appeal. Nevertheless, we begin by explaining the difference

between these two theories of liability.

¶ 12 A claim for vicarious liability asserts that an employer is liable

for a tort, such as negligence, committed by an employee within the

scope of employment. See Stokes v. Denv. Newspaper Agency, LLP,

4 159 P.3d 691, 693 (Colo. App. 2006). Direct negligence, by

contrast, asserts that an entity — in this case, a corporation — is

itself liable for negligent conduct. See Brown v. Long Romero, 2021

CO 67, ¶ 22 (in this context, a direct negligence claim might include

allegations of negligent hiring, training, or supervision or other acts

that constitute negligence and cause the plaintiff’s injuries).

¶ 13 With this distinction in mind, we note that the jury rejected

Whitt’s vicarious liability claim. That is, it concluded that CRA

should not be held liable for Brobst’s conduct. Therefore, to the

extent Whitt argues that she presented a viable direct negligence

claim based on Brobst’s or another employee’s failure to return her

calls quickly or accurately relay or apply the information she

provided, we disagree. Whitt’s direct negligence claim cannot be

based on what Brobst (or another employee) did or did not do.

See Settle v. Basinger, 2013 COA 18, ¶ 28 (to prove a direct tort, as

opposed to one based on vicarious liability, “it must be shown that

the [employer] had a duty and personally breached that duty, not

merely that the . . . employee had and breached a duty”).

Concluding otherwise would erase the boundary between direct and

vicarious liability. And, in any event, the jury’s verdict on the

5 vicarious liability claim indicates it did not believe Brobst’s conduct

was negligent.

¶ 14 We further agree with CRA that Whitt’s direct negligence

claim, as it relates to the doctors’ actions or failure to act, is barred

by the corporate practice of medicine doctrine. Whitt acknowledges

that Brobst consulted with Dr. Liu and Dr. Liu determined, based

on the information she received, that Whitt could be seen the

following morning. But Whitt argues that CRA was required to

provide additional access to medical care — including an in-person

diagnosis, a direct telephone conversation with a doctor, or a

second opinion regarding whether she required immediate

attention. We conclude CRA had no such duty.

¶ 15 Under the corporate practice of medicine doctrine, a

corporation cannot require a doctor to see and evaluate a patient —

whether in person or over the phone. See Est. of Harper, 140 P.3d

at 277 (the practice of medicine includes the “diagnosis and

treatment of human illness” (citing Austin v. Litvak, 682 P.2d 41,

(Colo. 1984))). And it cannot interfere with a doctor’s independent

medical determination that a patient need not be seen immediately,

even if that determination is negligent. See id. at 275 (the doctrine

6 shields a corporation from liability even if the doctor is negligent).

While Whitt attempts to frame her claim as one of failure to provide

“access,” we see no distinction between requiring Dr. Liu or another

doctor to see her emergently and intervening with Dr. Liu’s

determination that Whitt could be seen in the morning.

¶ 16 Whitt relies on Estate of Harper and United Blood Services v.

Quintana, 827 P.2d 509, 524 (Colo. 1992), to argue that CRA’s

triage policy created a duty to ensure patients with signs of

infection be seen right away. We are not persuaded. See Est. of

Harper, 140 P.3d at 275 (to the contrary, even a statute including

provision of access to healthcare as part of a corporation’s mission

did not create an exception to the corporate practice of medicine

doctrine); see also Quintana, 827 P.2d at 523 (applying a

professional standard of care because blood bank was in the

business of providing a “medical service,” not based on its

engagement in the practice of medicine).

¶ 17 Likewise, Whitt’s allegation that CRA was liable for failing to

train its staff, establish policies and procedures for returning calls

quickly, or otherwise “have a system in place” to ensure that she

was evaluated and treated emergently does not save her claim. Any

7 corporate policy or system directing a doctor’s care rather than

deferring to their independent exercise of medical judgment is

barred by the corporate practice of medicine doctrine. Because

Whitt’s direct negligence claim is not legally viable, CRA is entitled

to a directed verdict.

III. Whitt’s Cross-Appeal

¶ 18 On cross-appeal, Whitt challenges the judgment in favor of the

individual doctors, arguing that the court erred by admitting

undisclosed impeachment evidence, admitting cumulative expert

testimony, and preventing her from testifying about text messages

she sent after surgery. We are not persuaded by these arguments.

A. Standards of Review and Reversal

¶ 19 We review a trial court’s evidentiary rulings and imposition of

discovery sanctions for an abuse of discretion. See Settle, ¶ 64;

Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698, 702 (Colo.

2009). A trial court abuses its discretion if its decision is manifestly

arbitrary, unreasonable, or unfair. Pinkstaff, 211 P.3d at 702. We

do not reverse unless the error “substantially influenced the

outcome of the case or impaired the basic fairness of the trial itself.”

8 Gebert v. Sears, Roebuck & Co., 2023 COA 107, ¶ 30 (quoting CORE

Elec. Coop. v. Freund Invs., LLC, 2022 OA 63, ¶ 41).

B. Undisclosed Impeachment Evidence

¶ 20 Whitt first argues the trial court reversibly erred by admitting

undisclosed evidence that her expert witness, Dr. Chalam, was

previously subject to two administrative complaints involving

similar conduct to that alleged in this case. We disagree.

¶ 21 While Whitt argues this evidence was inadmissible under CRE

608(b) and CRE 403, she makes no attempt, other than a

conclusory statement, to demonstrate prejudice — i.e., how the

court’s admission of the challenged evidence affected her

substantial rights.2 See C.A.R. 28(a)(7)(B) (an opening brief must

include “a clear and concise discussion of the grounds upon which

the party relies in seeking a reversal”). Because she has not

sufficiently explained why any error is reversible, we reject her

claim as undeveloped. See Barnett v. Elite Props. of Am., Inc., 252

2 In her opening brief, Whitt asserts only that the court’s error in

admitting the undisclosed evidence “powerfully led the jury to discount Dr. Chalam’s testimony and thus render a decision on an improper basis.” But she does not indicate how the brief reference to this evidence cast doubt on the jury’s verdict, nor does she offer any developed response to CRA’s harmlessness argument on reply.

9 P.3d 14, 19 (Colo. App. 2010) (we need not consider arguments

presented without development as to “why any such alleged error

requires reversal”).

¶ 22 In any event, we conclude that any error was harmless.

Dr. Chalam’s cross-examination about his administrative

complaints was brief — just six of approximately sixty-three pages

of cross-examination; Dr. Chalam explained in his testimony that

he did not admit any wrongdoing; and the defense did not mention

the complaints in closing argument. Moreover, the record shows

that this portion of his cross-examination was inconsequential

compared to other aspects of his cross-examination challenging his

credibility. For example, Dr. Chalam testified that a surgical wound

like Whitt’s should be closed by sutures, but, on cross-examination,

he admitted that he previously published a letter opining that a lack

of suture material may reduce the risk of infection. He was also

cross-examined about an American Academy of Ophthalmology

publication that suggested patients with symptoms like Whitt’s did

not necessarily benefit from surgery, contrary to his testimony that

surgery should have been offered to improve her condition. See

Locke v. Vanderark, 843 P.2d 27, 32 (Colo. App. 1992) (improperly

10 admitted evidence of unrelated litigation nevertheless harmless

under substantially similar circumstances). For these reasons,

Whitt is not entitled to relief on this claim.

C. Cumulative Expert Testimony

¶ 23 Whitt next asserts the trial court abused its discretion and

violated the case management order by allowing two defense-

retained expert witnesses and each defendant doctor to testify that

the defendants met the standard of care in treating her. Again, we

disagree.

¶ 24 The case management order provided only that the defense did

not anticipate calling more than one retained expert per subject and

provided that the parties would confer if additional expert witnesses

became necessary. Defendants disclosed their expert witnesses —

two retained experts (one on general ophthalmology and another on

the subspecialty of vitreoretinal medicine) and the four nonretained

defendant doctors — and Whitt did not object. We see no abuse of

discretion in the court’s management of trial. See Jackson v. Unocal

Corp., 262 P.3d 874, 882 n.5 (Colo. 2011).

¶ 25 We further conclude that the trial court properly overruled

Whitt’s objection to cumulative expert testimony. Whitt argues

11 each doctor testified to the same thing and the jury was inundated

with expert opinions from the defense, while she was limited in her

presentation of the issue. Despite Whitt’s arguments, however,

each doctor, as a party to the lawsuit, was entitled to testify in their

own defense, including testimony that they believed their conduct

met the standard of care. While their testimony overlapped, it was

related to their individual interactions with Whitt and resulting

treatment decisions. Because this testimony was “decidedly

different in character and impact,” People v. Genrich, 2019 COA

132M, ¶ 117 (Berger, J., specially concurring), the trial court

properly concluded it was not needlessly cumulative. We further

assume the jury understood and followed the court’s instruction

that “[t]he weight of evidence is not necessarily determined by the

number of witnesses testifying to a particular fact.” See People v.

Licona-Ortega, 2022 COA 27, ¶ 91.

D. Exclusion of Evidence Under C.R.C.P. 37

¶ 26 Finally, we see no abuse of discretion in the trial court’s

exclusion of evidence that Whitt told people she was in pain the day

after surgery as a sanction for her last-minute disclosure.

12 1. Applicable Law

¶ 27 A party must disclose evidence before trial and, if necessary,

supplement any incomplete disclosures. C.R.C.P. 26(a), (e). If a

party fails to disclose evidence or supplement their disclosures, the

undisclosed evidence will not be admitted at trial unless the failure

to disclose was either substantially justified or harmless. C.R.C.P.

37(c); see also Todd v. Bear Valley Vill. Apartments, 980 P.2d 973,

978 (Colo. 1999) (it is the nondisclosing party’s burden to establish

these elements). A trial court has considerable discretion in

determining whether the failure to disclose evidence was

substantially justified or harmless. Todd, 980 P.2d at 978.

2. Additional Facts

¶ 28 During discovery, the defense requested Whitt produce all text

messages related to her medical condition and claims. Whitt

produced no text messages in response. Then, three days into trial

and the night before her testimony, Whitt located three text

messages to separate people in which she expressed that she was in

pain. She provided screenshots of the messages to her attorneys,

who immediately sent them to the defense. Outside the presence of

the jury, Whitt’s counsel sought to introduce this evidence. He

13 argued that, while the court may be inclined to disallow the

screenshots themselves, Whitt should be allowed to testify about

her prior communications.

¶ 29 Defense counsel objected, arguing the defense was prejudiced

by the late disclosure because he had no opportunity to question

Whitt or any of the message recipients or investigate whether the

messages were legitimate.

¶ 30 Quoting C.R.C.P. 37(c), the trial court concluded that Whitt’s

failure to disclose the evidence was not substantially justified or

harmless. It therefore found the messages inadmissible and

concluded that, while Whitt could testify about the fact that she

was in pain, she could not testify to messaging other people to that

effect.

3. Discussion

¶ 31 Whitt argues that because the evidence demonstrating she

was in pain was highly relevant to the issues, preclusion was

unwarranted. She asserts that, instead, the trial court should have

remedied the harm caused by her nondisclosure by allowing

defense counsel to interview her before she took the stand or by

granting a short continuance.

14 ¶ 32 Critically, however, Whitt did not request a continuance or

alternative remedy before the trial court. To the contrary, her

attorney appeared to concede that the court might be inclined to

preclude the messages. Whitt made no response at all to defense

counsel’s argument that the defense would be significantly

prejudiced by the inability to conduct a forensic analysis of her

phone or to call the purported message recipients as witnesses.

Under these circumstances, we conclude she failed to meet her

burden to establish harmlessness under C.R.C.P. 37(c), despite

being afforded an opportunity to do so.3 See Todd, 980 P.2d at 978.

¶ 33 In her reply brief, Whitt also argues the trial court erred by

failing to review the nonexhaustive factors described in Todd to help

guide a court in applying C.R.C.P. 37(c). We do not consider

arguments made for the first time in a reply brief. Flagstaff Enters.

Constr. Inc. v. Snow, 908 P.2d 1183, 1185 (Colo. App. 1995).

Nevertheless, we observe that the court’s use of C.R.C.P. 37(c)’s

3 Whitt does not challenge the court’s finding that her failure to

disclose the text messages was not substantially justified, so we do not review this element.

15 language suggests that it properly considered and applied the law.

Therefore, we will not disturb its conclusion.

IV. Disposition

¶ 34 The judgment is reversed as to Whitt’s direct negligence claim

against CRA, and the case is remanded for entry of a directed

verdict on that claim in CRA’s favor. In all other respects, the

judgment is affirmed.

JUDGE GOMEZ and JUDGE BERNARD concur.