*1 247 period limitation two-year minimum of a tates a Assembly's choice the General flicts with actions, respectfully I injury dis- being the mini period personal limitations two-year Reg'l Transp. period. applicable mum sent. Jones, 669; at 828 P.2d Dist., at that CHIEF JUS- to state I am authorized (2008) ("In 2-4-201(1)(c), en 223; C.R.S. § joins in this dissent. TICE MULLARKEY ... statute, presumed [al it is acting a intended."). result just and reasonable District, we Transportation Regional limi longer in favor of
resolved (recognizing P.2d at 668 period.
tations limitations are "because statutes claim, a valid presumptively derogation of prevail should of limitations
longer period arguably applicable"); statutes are where BERRY, K. Michelle Jones, Dawson, 214; also P.2d at see see con "buttressed" this at 222. We Reg'l fairness." "notions of clusion KELTNER, Defendant. Jennifer Dist., at 669. We observed Tranps. No. 09SA5. "timely notified the RTD plaintiffs commence their intent to injuries and of their Colorado, Supreme Court of RTD it. The thus proceedings civil En Banc. itself." prepare to defend ample time had May26,2009. "(all- Thus, concluded that Id. at 669-70. was filed respondents' civil action though the they after discovered years than two
more suggested injuries, RTD has not
their at prejudiced." Id. case it was
669-70.. in Pana- injured
In this Jenkins he there because
ma and refused sign a form required to first release speak-and language he did not
Spanish-a to Colora- until he returned
was not treated as defen- businesses such Sophisticated
do. dants, Railway Company Panama Canal Railway City Com- the Kansas Southern persons reasonably assume the
pany, could
injured utilizing their services while injuries. redress for their some sort of
seek
Jenkins, plaintiffs, had to tort like most claim, de- pursue his tort
decide whether counsel, it, pursue seek out where to
cide facts, Particu- and file his case.
gather the foreign injury in a
larly occurs when period this in a short
country, accomplishing Assembly not what the General
of time is Assembly included a
intended. General to address provision in the UCLLA
fairness in this case. as exists
just such unfairness is the
Accordingly, the UCLLA the Gener- specific and because
more statute dic- Assembly that fairness has concluded
al
248 973, On the facts this we hold that Plaintiff's substantially justified
disclosure was in that by it was progressive occasioned nature alleged injuries. Furthermore, of her expert question potentially is central to Plaintiff's case. We also hold that comply failure to with the discov ery deadline was harmless to Defendant Jen nifer Keltner because the trial date has not been set and opportunity Defendant's to de fend the evidence has not been com promised. Thus, the trial court abused its discretion expert when it barred the witness. Proceedings I.. Facts and Below injuries This case concerns alleg- Plaintiff edly sustained a 2004 traffic accident while riding passenger as a in Defendant's car. accident, Since the Plaintiff has been treated by physicians, several but she claims contin- head, neck, back, ued in her and shoul- der. alleged injuries, Defendant refutes the asserting treating physician that no has been objective able to evidence of Plain- tiff's 2007, August Plaintiff sued Defendant P.C., Cooper Clough, & Clough, John E. County Larimer District Court. Pursuant
Wendy Lewis, Denver, Colorado, J. Attor- County's to Larimer management pro- case neys for Plaintiff. cedure, the court indicated it would not set a Trautwein, LLC, Wick & Camp- Kent N. until discovery date completed. was bell, Kimberly Schutt, parties Collins, The filed a B. Compliance Certificate of Fort Colo- rado, Attorneys for Defendant. designating 17, 2008, April as the deadline disclosures; expert 16,
for Plaintiffs June 2008, Justice RICE Opinion deadline; delivered the discovery as the August Court. 15, 2008, projected as the date the case would ready for trial.
Plaintiff Berry Michelle brought origi- proceeding nal challenge pretrial Plaintiff filed expert the initial disclosure precluding testimony expert from an deadline, witness two months after listing she did applicable disclose experts-but dead- medical expert not the in question her e.1 Plaintiff then submitted an Tine. As past, we have held in the C.R.C.P. 37(c) dictates that a be sanctioned for Amended Compliance Certificate of in Au failure comply discovery gust with certain sought discovery 2008 and a new cut-off deadlines preclusion evidence or date and disclosure deadline. Defen witnesses, party's unless the stipulated failure to com- dant the new deadline ply 30, is either 2008, or harm- of November proposed and the new less. Valley Apartments, 15, Todd Bear 2008, Vill. trial date of December but she accident, experts 1. explained by The number of sought resolution of her college factors. Plaintiff was a pain through chiropractic student when she chronic medi- injured cine, inju- and received massage therapy, physical therapy, for her occupa- ries in both her therapy, acupuncture, hometown and the town where orthopedic tional college. years she attended Over the four since medicine. motion, court denied The extension requested opposed late disclosure stating that the declined trial court disclosures. The court substantially justified. extension, expert disclosure approve November filed her noted discovery had been of time length citing the ap- Compliance Amended Certificate fact and the opposition, Defendant's *3 ongoing, initiated after she week one proximately expert ex- one already obtained had Plaintiff Lewis, filing yet that Dr. with treatment initial filing. tension to further the need of no mention made treating 2008, ortho- Plaintiff's In October deadline. expert disclosure the extend upper Plaintiff's sean of a CT reviewed pedist reject- in rationale to its referred court also calcifica- "corticated a new and detected back the to extend prior motion Plaintiffs ing a conducted radiologist A spine. on her tion" numerous to the pointed and deadline expert Novem- on the CT sean secondary of review Af- already endorsed. providers treatment of the 2008, 6, and confirmed ber the court unjustified, motion finding the ter signifi- potential the Due to the calcification. late en- the permitting also concluded case, Plaintiff to her results of the sean cance delay trial and dorsement discovery deadline the of sought an extension particular, the In a result. and further to conduct in order expose delayed trial would that a noted court Novem- On calcification. the of assessment inter- prejudgment to increased Amended Cer- 2008, filed an 24, Plaintiff order, ber the trial court's contests est. by agreed again Compliance, of tificate and prohibition of in the nature seeking relief discovery dead- Defendant, the pushed mandamus. 2008, proposed 31, and the to December line 31, 2009. January Analysis trial date II. - jurisdiction original This court assessment, Plaintiff further part of the As a review whether under C.A.R. M.D., manage- Lewis, pain a Kenneth saw in cireumstances court abused expert question. in the and specialist ment prove inad appeal would remedy on a where treatment, commene- diagnostic Lewis's Dr. Court, 638 Dist. Margolis v. equate. in- 2008, 18, of consisted ing November 297, "Issuance 300-01 course over the area the calcified jections to disadvan significantly orders pretrial the to delineate in order weeks of three aof litigating the merits tage claimants be controlled that could pain degree exercising provides a basis controversy object. After anesthetizing the calcified proceeding." original in an jurisdiction reported Dr. Lewis injections, the completing v. Dist. Todd, (citing J.P. at 975 2008, 10, December counsel on Plaintiffs (Colo.1994)). 745, Court, 747 n. only reduction minimal achieved that he had the calcifica testimony concerns Dr. Lewis's direct anesthe- pain with overall in Plaintiff's provides report, that, according to his tion opined the calcification. sia onto chron- of Plaintiffs physical evidence the probably was the calcification precluding The trial court's pain. ie physi- a rather pain, but source potential testimony thus Lewis's Specifically, of that manifestation cal ability to recov substantially limit stated, not believe "I do report Dr. Lewis's therefore exercise injuries. We er for her nodule the calcified in time that at this if the to determine jurisdiction original may but of her actually source its discretion. court to that injury suffered a result simply be 37(c) with- party "A vehicle acci- states: during motor C.R.C.P. joint capsule fails to disclose justification healing pro- substantial an abnormal out was [sic] dent 26(a) Rules required C.R.C.P. immediately faxed information Plaintiffs counsel cess." harm- 26(e) not, failure is 11, unless such or shall December On report to Defendant. any evidence less, present permitted a motion with filed at trial...." disclosed an not so Lewis as to endorse requesting leave for eval- factors useful series of recognized a expert. medical additional uating whether a failure to disclose is either significance to evaluate the testimony of the harmless, including: or weigh and to importance against its the cost
(1) importance delay. of the witness's testi- mony; perceive no bad faith or willfulness on (2) explanation of the for its part presents find that she comply required failure to with the dis- explanation credible for her comply failure to closure; with the disclosure deadline. Defen- (3) potential prejudice surprise or dant accuses Plaintiff shopping" of "doctor party against whom the the eve of the trial-setting an effort to find is offered that would arise from allow- an to substantiate Plaintiff's claims. ing testimony; contrary, On the Plaintiff saw Dr. Lewis *4 (4) availability the of a continuance to cure response to new CT sean results on referral prejudice; such from orthopedist an began treating who her (5) the extent to introducing such in 2006. There is no evidence that the No- testimony trial; disrupt would the and vember 2008 CT sean was connected to (6) non-disclosing party's strategy, the Plaintiffs previous bad faith or as CT
willfulness.
scans were
during
taken
the course of Plain-
tiff's treatment.
Plaintiff asserts
that
the
Applying
during those compen- of the use of had the benefit found might she damages
satory has en- defendant] entitled, [the while to be Thus, we Id. amount." of that the use
joyed based no perceive inter- prejudgment exposure increased the State The PEOPLE est. Colorado, Plaintiff trial court a finally that acknowledge management closely control must SUMMERS, Defendant. Eugene "timely to ensure in order and cases dockets Windustrial Denver v. S. Burchett justice." No. 08SA169. However, Co., Colorado, Supreme Court set, yet been has not trial date a because Banc. En of the importance potential we fore- and because question, testimony in May26,2009. the endorse- delay associated see to be additional single of a ment minimal, hold significant present does
disclosure