Kallas v. Spinozzi, 2014 COA 164

Background

Kallas sued optometrist Spinozzi for malpractice, battery, and lack of informed consent after an eye procedure; action filed September 2010.
Original jury trial was continued after Kallas's first expert withdrew; Kallas retained a new expert who produced reports in 2012; deposition was scheduled for December 2012 in Utah.
Kallas's counsel, a solo practitioner, suffered a serious fall and prolonged hospitalization; he told the court he would not substitute or employ other counsel and that he or an associate would schedule the expert deposition.
Counsel failed to supply the expert's telephone number or office address and did not produce the expert file despite court orders; efforts to subpoena and serve the expert were unsuccessful.
The trial court struck Kallas's expert under C.R.C.P. 37, denied a continuance, and on the first day of trial dismissed the case with prejudice for failure to prosecute. Kallas appealed and the court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether striking Kallas's expert was an abuse of discretion	Strike was too severe given counsel's serious medical condition and efforts to schedule	Expert depositions and file were not provided; prejudice to defense; sanctions warranted	Court affirmed strike: counsel failed to comply with orders; violation was not justified or harmless; extreme circumstances justified litigation-ending sanction
Whether court abused discretion by denying continuance	Second fall of counsel was unforeseen and exceptional, justifying continuance	Counsel’s health problems were ongoing/foreseeable; plaintiff previously received a continuance; further delay prejudicial	Denial affirmed: no good cause shown; counsel refused to substitute or add counsel; prejudice to defendant established
Whether dismissal for failure to prosecute was proper	Dismissal was improper; plaintiff sought continuance and was impaired by counsel’s condition	Plaintiff lacked counsel at trial, lacked expert, failed to comply with discovery and court orders; defendant prejudiced by delay	Dismissal affirmed: plaintiff unprepared, had not shown other grounds to proceed; dismissal within court’s discretion
Whether lesser sanctions were considered/required	Court should have imposed lesser remedies (fees, limited sanction) instead of striking expert/dismissing	Court considered continuance but rejected it given case age and prejudice; lesser sanctions would not cure prejudice so close to trial	Affirmed: record shows court considered alternatives and reasonably rejected them given timing, prior continuance, and prejudice

Key Cases Cited

Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698 (Colo. 2009) (trial courts have broad discretion on discovery sanctions; sanctions must be proportional)
Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo. 1999) (undisclosed evidence should not be excluded if substantially justified or harmless; guides sanction analysis)
Nagy v. Dist. Court, 762 P.2d 158 (Colo. 1988) (sanctions are within trial court discretion; abuse of discretion standard explained)
Cornelius v. River Ridge Ranch Landowners Ass'n, 202 P.3d 564 (Colo. 2009) (litigation-ending sanctions may be appropriate for willful, flagrant discovery violations)
Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo. App. 2000) (dismissal justified for deliberate disobedience of discovery rules)
Trattler v. Citron, 182 P.3d 674 (Colo. 2008) (courts should strive to decide cases on the merits but may impose sanctions in extreme cases)
Lake Meredith Reservoir Co. v. Amity Mut. Irrigation Co., 698 P.2d 1340 (Colo. 1985) (plaintiff bears burden to prosecute without unreasonable delay)
Cherry Creek Sch. Dist. No. 5 v. Voelker, 859 P.2d 805 (Colo. 1993) (continuance review uses abuse-of-discretion; weigh prejudice and fairness)
Warden v. Exempla, Inc., 291 P.3d 30 (Colo. 2012) (trial courts have broad authority to manage discovery and impose sanctions)