Catholic Health Initiatives Colorado v. Earl Swensson Associates, Inc.
2017 CO 94
| Colo. | 2017Background
- Catholic Health sued architect Earl Swensson Associates (ESA), alleging negligent design that prevented a separately licensed Ambulatory Surgery Center; damages hinge on cost to add an ASC.
- Catholic Health designated Bruce LePage as its damages expert; his report gave an $11 million estimate but lacked detailed factual bases, assumptions, or supporting documents.
- ESA moved to strike LePage 35 days before trial under C.R.C.P. 26(a)(2)(B)(I), arguing the report failed to disclose required detail and therefore his testimony must be excluded.
- The trial court found LePage’s report inadequate and—relying on the 2015 amendment to Rule 26 that says an expert’s testimony “shall be limited to matters disclosed in detail in the report”—excluded his report and precluded his testimony without applying Rule 37(c)(1).
- Catholic Health petitioned under C.A.R. 21; the Colorado Supreme Court granted review to decide whether the Rule 26 amendment mandates automatic exclusion or if Rule 37(c)(1)’s harm/proportionality framework controls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2015 amendment to C.R.C.P. 26(a)(2)(B)(I) mandates automatic exclusion of expert testimony when the expert report lacks required detail | LePage’s opinions derive from experience; Rule 26 does not require itemized assumptions and, if inadequate, Rule 37(c) governs sanctions rather than automatic exclusion | The amended Rule 26 limits expert testimony to matters disclosed in detail, so failure to disclose sufficient basis requires exclusion | The amendment did not create automatic exclusion; Rule 37(c)(1)’s harm and proportionality analysis remains controlling |
| Whether the trial court properly excluded LePage without conducting a Rule 37(c)(1) analysis | Striking the expert is a disproportionate sanction given no bad faith or blatant disregard; court should assess harm and proportionality | Exclusion necessary because report failed to meet Rule 26’s disclosure mandate, impairing cross-examination | Trial court abused its discretion by excluding LePage without applying Rule 37(c)(1); remand for proper analysis |
Key Cases Cited
- Trattler v. Citron, 182 P.3d 674 (Colo. 2008) (Rule 37(c)(1) authorizes preclusion but requires consideration of harm and alternatives)
- Todd v. Bear Valley Vill. Apartments, 980 P.2d 973 (Colo. 1999) (factors for Rule 37(c)(1) proportionality/harm analysis)
- Garrigan v. Bowen, 243 P.3d 231 (Colo. 2010) (procedural rules interpreted de novo)
- St. Jude’s Co. v. Roaring Fork Club, L.L.C., 351 P.3d 442 (Colo. 2015) (abuse-of-discretion standard for discovery sanctions)