Sovde v. Scott, D.O, 2017 COA 90

Newborn Shawn Sovde developed skin lesions shortly after birth; doctors Sarka and Scott diagnosed them as benign (cradle cap/baby acne) and did not test for herpes.
On July 5 the infant was hospitalized and diagnosed with herpes simplex SEM and CNS disease; he later suffered seizures and other complications.
Plaintiff (mother on behalf of child) sued for medical negligence, alleging earlier misdiagnosis prevented timely treatment that could have averted CNS disease; defendants contended lesions developed only on July 4–5.
Defendants had earlier endorsed two retained experts (Dr. Reiley, neurologist; Dr. Molteni, neonatologist) as “may call” witnesses, then withdrew them shortly before/during trial. Plaintiff sought to call them or use their depositions; the trial court denied those requests.
Plaintiff also sought to admit hearsay statements the father made to a pediatric medical assistant (for medical diagnosis/treatment); the court excluded that testimony. The jury found for defendants; plaintiff appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a party may call an opposing party’s withdrawn "may call" expert or use that expert’s deposition at trial	Sovde: Once an expert is endorsed and deposed, it’s too late to prohibit the opposing party from calling that expert after withdrawal; exclusion was improper	Defendants: They properly withdrew "may call" experts; no rule requires making "may call" experts available; allowing Sovde to call them would be prejudicial and unnecessary	Court: Apply a discretionary balancing test (considering cumulativeness, unfair prejudice, and whether the non‑endorsing party failed to endorse its own expert). Here exclusion was within trial court’s discretion because testimony would be cumulative and Sovde was not unfairly prejudiced
Whether statements by the father to a pediatric medical assistant were admissible under the medical‑diagnosis hearsay exception (CRE 803(4))	Sovde: The call sought medical advice; the assistant’s repetition of the father’s statements was made for diagnosis/treatment and thus admissible	Defendants: The substance includes non‑diagnostic assertions (assigning fault) and is hearsay	Held: Symptom descriptions to the assistant fell within CRE 803(4) but statements ascribing fault did not; exclusion of the assistant’s testimony was harmless because other witnesses testified to the same symptoms

House v. Combined Ins. Co. of Am., 168 F.R.D. 236 (N.D. Iowa 1996) (describes and applies a discretionary/balancing approach for allowing opposing party to call a withdrawn expert)
Peterson v. Willie, 81 F.3d 1033 (11th Cir. 1996) (court has discretion to permit opposing party to call a de‑designated expert; discusses potential prejudice to original endorsing party)
McClendon v. Collins, 372 P.3d 492 (Nev. 2016) (endorses balancing test and identifies relevant factors like cumulativeness, prejudice, and piggybacking)
Estate of Ford v. Eicher, 220 P.3d 939 (Colo. App. 2008) (trial courts have broad discretion to admit or exclude expert testimony)