Garrigan v. Bowen
243 P.3d 231
| Colo. | 2010Background
- Garrigan sued Dr. Bowen for POVL after lumbar surgery; Bowen used Dr. Lee, lead author of the POVL Study, as an expert.
- POVL Study analyzed 93 spine-surgery POVL cases from ASA registry; authors concluded long surgery in prone position linked to POVL but causation not proven.
- Dr. Lee disclosed relying on the POVL Study but did not expressly list underlying raw data as having been considered.
- Plaintiff served Rule 34 discovery for all POVL Study data, notes, and data forms; Bowen claimed data not in possession or control.
- Trial court found data was “considered” under 26(a)(2)(B)(I) and ordered disclosure; court then precluded Dr. Lee’s testimony when data wasn’t produced.
- Colorado Supreme Court granted rule to review, vacated the exclusion, and held no discovery violation occurred because Dr. Lee did not consider the raw data in forming opinions for this case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of data considered under 26(a)(2)(B)(I) | Garrigan argues data must be disclosed if considered in forming opinions. | Bowen argues only data actually reviewed for this case matters. | Data must be considered for this case; court adopts case-specific standard. |
| Whether Dr. Lee considered the POVL Study's raw data in forming opinions | Plaintiff contends Lee relied on raw data; thus data must be produced. | Lee relied on the published study; no need to disclose raw data. | Lee did not consider the raw data for this case; publication sufficed. |
| Sanction for failure to disclose data | Excluding Lee’s testimony is appropriate if data was necessary. | No violation since no data was required to be disclosed. | Trial court erred in excluding Lee’s testimony; no basis to sanction. |
| Scope of trial court’s discretion in discovery decisions | Courts should broadly compel disclosure to ensure fairness. | Trial court has managerial discretion to control discovery. | Court’s exclusion sanction was not proper; remand to proceed consistent with opinion. |
Key Cases Cited
- Gall ex rel. Gall v. Jamison, 44 P.3d 233 (Colo. 2002) (defines ‘considered’ to include materials read before forming an opinion)
- Benton v. Adams, 56 P.3d 81 (Colo. 2002) (affirms original jurisdiction to review discovery orders impacting defense)
- Cameron v. Dist. Ct., 193 Colo. 286, 565 P.2d 925 (Colo. 1977) (liberal construction of discovery rules and purposes of discovery)
- People v. Ferguson, 227 P.3d 510 (Colo. 2010) (uses de novo review for interpretation of procedural rules; defers to factual findings)
- Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002) (sanctions standards and abuse of discretion in discovery)
- KN Energy, Inc. v. Great W. Sugar Co., 698 P.2d 769 (Colo. 1985) (abuse of discretion standard for discovery orders)
- Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698 (Colo. 2009) (sanctions standard for discovery violations)