Warden v. Exempla, Inc.
2012 CO 74
| Colo. | 2012Background
- Wardens sue Exempla for medical malpractice arising from Noah Warden’s birth injuries and alleged intrapartum negligence.
- Noah suffered hypoxic-ischemic injury at birth after nine hours of labor and emergency C-section; MRI suggested HIE.
- Exempla’s experts attributed Noah’s injuries to non-intrapartum causes; NEACP criteria formed key part of their causation theory.
- Wardens disclosed eight initial experts, including Cokely and Wilson; Opp provided a life-expectancy cost analysis.
- Wardens later disclosed four rebuttal experts, including Shott, who attacked NEACP validity; life-expectancy testimony by Cokely and Wilson was expanded.
- Trial court struck Shott’s rebuttal testimony and the life-expectancy testimony; court then denied expedited review; this original proceeding challenges those sanctions and seeks reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Shott’s rebuttal testimony was properly disclosed | Shott rebutted NEACP-based causation theory | Rebuttal testimony was unresponsive/ambush-like | Yes; Shott proper rebuttal evidence; reversed |
| Whether Cokely and Wilson’s late-disclosed life expectancy testimony was harmless | Late disclosure should be admitted due to importance | Late disclosure prejudicial; sanctions warranted | Harmless; reversed and admitted |
| Whether the trial court abused its discretion under Rule 37(c) in sanctions | Discretion should favor admission of key rebuttal and life-expectancy evidence | Discretion to sanction for late disclosures stands | Abused discretion; sanctions vacated |
Key Cases Cited
- Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698 (Colo. 2009) (abuse-of-discretion standard for sanctions under Rule 37)
- Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo. 1999) (harmlessness factors for late-disclosure sanctions)
- Berry v. Keltner, 208 P.3d 247 (Colo. 2009) (continuance as factor weighing against prejudice)
- 103 Investors I, L.P. v. Square D Co., 372 F.3d 1213 (10th Cir. 2004) (rebuttal disclosures not necessarily create new theories)
- Welsh v. Welh, 80 P.3d 296 (Colo. 2003) (rebuttal evidence may address specific portion of disclosures)
- Leaffer v. Zarlengo, 44 P.3d 1072 (Colo. 2002) (discovery scope broad; relevance to subject matter)
- Trattler v. Citron, 182 P.3d 674 (Colo. 2008) (broad discovery purpose; fairness in evidence)
- Mayer v. Dist. Court, 198 Colo. 199, 597 P.2d 577 (Colo. 1979) (trial court discovery management discretion)
- In re Marriage of Wiggins, 279 P.3d 1 (Colo. 2012) (interlocutory discovery rulings generally not reviewable)
- Berry v. Keltner, 208 P.3d 247 (Colo. 2009) (discussed above for prejudice and continuance)