Colorado Supreme Court weighs in on expert disclosure sanctions

I haven’t done a Colorado Supreme Court Round-Up for months, and probably won’t be doing one again. Truth be told, I have neither the time nor the desire for such efforts. Besides, the folks at Isaacson Rosenbaum, P.C. are doing the legwork on their Colorado Appeals Blog, which covers both the Supreme Court and the Colorado Court of Appeals.

Rest assured, though, that whenever our state’s high court does something totally crazy or otherwise noteworthy in a civil case, I’ll be on it. Yesterday’s decision in Trattler v. Citron (pdf, 39 pages) qualifies for coverage in the “otherwise noteworthy” category.

As in most states, Colorado’s rules of civil procedure contain detailed requirements for disclosure of information regarding expert witnesses a party intends to present at trial. Rule 26(a)(2)(B)(I) requires that, for each expert, a litigant disclose to the other side:

1) the identity of expert witnesses; 2) the qualifications for those witnesses; 3) a summary report of the experts’ findings relative to the case at issue; 4) any exhibits to be used; 5) a list of the experts’ past publications; 6) the compensation received by the expert for work in this case; and 7) a list of the cases in which the experts testified over the previous four years.

Unless the court otherwise directs, the claiming party must make the required disclosures at least 120 days before trial.* C.R.C.P. 26(a)(2)(C)(I).

Rule 37(c)(1) provides the sanctions for failing to make the required disclosures. The first sentence of that rule reads:

A party that without substantial justification fails to disclose information required by C.R.C.P. Rules 26(a) or 26(e) shall not, unless such failure is harmless, be permitted to present any evidence not so disclosed at trial or on a motion made pursuant to C.R.C.P. 56.

Under that provision, a court may exclude undisclosed or improperly disclosed expert evidence unless the proffering party proves to the judge’s satisfaction that the disclosure violation was either “harmless” or “substantially justified.”

The second sentence of Rule 37(c)(1) provides that exclusion isn’t the only option, and grants courts leeway to make the proverbial punishment fit the crime:

In addition to, or in lieu of this action, the court, on motion after affording an opportunity to be heard, may impose other appropriate sanctions, which, in addition to requiring payment of reasonable expenses including attorney fees caused by the failure, may include any of the actions authorized pursuant to subsections (b)(2)(A), (b)(2)(B), and (b)(2)(C) of this rule.

“Other appropriate sanctions” is squishy by design, giving courts plenty of discretion to fashion appropriate remedies for disclosure rule violations based on the facts of each case.

Which brings us to Trattler, a medical negligence/wrongful death case in which the plaintiff alleged that two doctors negligently failed to diagnose a blocked artery that caused her husband’s fatal heart attack. Expert testimony is crucial in medical malpractice cases. In fact, the vast majority of cases can’t even proceed without it. Here in Colorado, the plaintiff or his lawyer must certify to the court within sixty days after filing a lawsuit that an expert has reviewed the evidence and that the claim is substantially justified.

The plaintiff in Trattler hired two doctors who planned to testify that the defendant physicians breached the applicable standard of medical care in treating plaintiff’s husband. The plaintiff provided the defendants with timely disclosure of her experts’ identities, qualifications, opinions and recent publications, but didn’t supply a complete list of all other cases in which her experts had testified during the past four years.

Defense counsel did some digging and found out that the testimony lists that the experts provided were incomplete. Defendants filed, and the trial judge granted, motions to preclude the experts from testifying based on the incomplete prior testimony disclosure. The judge didn’t blame the plaintiff or her lawyer (all the blame belonged to the experts in the judge’s mind), but found Rule 37(c)(1) mandates exclusion under these circumstances. Three days before trial, the plaintiff found herself without her two key experts. The court dismissed the plaintiff’s claims against one of the defendants and the jury found in favor of the other.

By a vote of 6-1 the Supreme Court reversed and remanded the case for a new trial. Noting the obvious, the Court wrote that Rule 37(c)(1) authorized full-blown exclusion only as to “evidence not so disclosed.” Here, the plaintiff disclosed the identity, qualifications and opinions of her experts, and nothing in Rule 37(c)(1) authorized preclusion of disclosed information.

The only item on which plaintiff’s expert disclosure was incomplete was prior testimony. Precluding that evidence is nonsensical seeing as how the defendants might want to use the experts’ testimonial histories to impeach them.

On the facts of this case, precluding the experts from testifying at all was way out of proportion to the severity of the discovery violation. The trial court should have considered (and can consider on remand) alternative sanctions:

When considering an appropriate sanction for nondisclosure or late disclosure of testimonial history, the trial court should be guided by the alternatives specified in Rule 37(c)(1), including the alternatives cross referenced in sections (b)(2)(A), (b)(2)(B), and (b)(2)(C) of the rule. Thus, the court may consider rescheduling depositions or trial, payment of attorney fees and costs, contempt proceedings against the experts, admitting evidence of the noncompliance, instructing the jury that noncompliance may reflect on the credibility of the witness, or any other sanction directly commensurate with the prejudice caused.

All in all, a just result. The case also provides one helluva lesson in the importance of lawyers pushing the hell out of their experts to get the required disclosure information. Cases fall apart in this state all the goddamn time based on failure to comply with disclosure deadlines.

* Beware of places such as the Weld County District Court, which routinely sets the plaintiff’s expert disclosure deadline at 160 days before trial.

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  • Mel Harper  On October 30, 2011 at 10:11 pm

    I think there is a Colorado case that defines what information should be contained in an expert’s listing of prior testimony. Are you aware of that case? If you are, could you give me the cite?
    Mel Harper

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