*1 GARRIGAN, Phillip Plaintiff M.D., BOWEN,
Philip Defendant. J.
No. 10SA20. Colorado,
Supreme Court of
En Banc.
Nov. Rehearing Denial of Modifiedon
As
Dec. 2010.* * participate. and Justice Martinez would Chief Justice Bender Marquez grant does not the Petition. Justice *2 data, study's underlying
trol of the trial court nevertheless concluded sanctions produce. were warranted for the failure to Accordingly, prohibited the trial court Dr. testifying Lee from at trial. that, law, conclude a We as matter of Davis, P.C., Killian, Killian & J. Keith holding trial court erred in that the raw data Davis, Martin, Cheryl Damon J. A. Grand underlying study was "considered" Junction, Colorado, Attorneys for Plaintiff. opinions" "in forming [her] Nixon, P.C., Pryor Carney Karr Johnson contemplated by 26(a)(2)(B)(I), C.R.C.P. ren- Karr, Moran, D. David Elizabeth C. Green- dering the data discoverable. Because there Colorado, Village, Attorneys
wood
for Defen-
failing
was no
pro-
violation
to
dant.
data,
duce the
we do not address other issues
parties
involving
raised
possession,
Chief Justice MULLARKEY delivered the
custody, or control of the
propriety
Opinion of the Court.
of the trial court's sanction.
I.
Introduction
accordingly
make the rule absolute.
In
malpractice
medical
ac-
We vacate the trial
precluding
court's order
tion,
plaintiff, Phillip Garrigan, alleged
expert's testimony
based on the failure to
defendant, anesthesiologist
that the
Phil-
Dr.
produce
study's underlying
data.
Bowen,
ip
negligently managed
J.
his care
during
spine surgery
his lumbar
and caused
History
II.
Facts
Procedural
Garrigan to suffer loss of vision as a result of
surgery.
2004, Phillip Garrigan
underwent a six-
spine surgery
hour
lumbar
for which Dr.
original
proceeding
under C.AR.
anesthesiologist. During
Bowen was the
striking
we review the trial court's order
le.,
surgery, Garrigan
placed
prone,
was
in a
of one of Dr. Bowen's
down, position. Following surgery,
face
Gar-
witnesses
as a
violation
rigan discovered that he could not see.1 He
witness,
sanction. The
Dr.
A.
Lorri
diagnosed
having
was
postop
suffered
Lee,
is the lead
author of a
("POVL"),
erative visual loss
spe
and more
post-operative
visual
loss and
("ION")2
cifically
optic neuropathy
ischemic
planned
testify
publication
to
about
trial,.
Her
disclosure statement
listed
Garrigan subsequently brought
this suit
publication
required
as was
under
against Dr.
Mary's Hospital
Bowen and St.
26(a)(2)(B)(I)
expressly
C.R.C.P.
but did not
Center,
Inc.,
and Medical
but
the claims
study's underlying
list the
having
raw data as
against
hospital
were dismissed.
In his
been considered.
complaint, Garrigan alleged that Dr. Bowen
The trial
negligent
treatment,
concluded that
under
his care and
26(a)(2)(B)(I),
Lee had consid-
including failing
properly place
and main-
ered the
raw
data in
opin-
Garrigan
proper position
tain
and fail-
malpractice
ions for the instant
adequately
action and
monitor and administer
required
pro-
therefore the defendant was
input
output.
fluid
Accordingly, Garri-
duce that data
plaintiff requested
gan
when the
alleged that Dr.
negligence
Bowen's
it, Although finding that neither Dr. Bowen
him
permanent physical
caused
to suffer
im-
possession, custody,
nor Dr. Lee had
disfigurement.
or con-
pairment
plaintiff
eye
1. The
eye,
asserts
when he awoke in the
and hand-motion in the left
with bilater-
-
recovery
surgery,
optic atrophy."
room after
he
al
was unable to
eye.
expert summary
see in either
for one of
witnesses,
ophthalmologist
Dr. Bowen's
portions
2. Different
of the record conflict in their
Newman,
Nancy
plaintiff's
J.
stated that the
type
reference to the
fered,
ION
suf-
ophthalmology
most
recent
records
indicated
posterior
whether
it was anterior or
is-
(corrected)
right
optic
neuropathy.
"his vision
in his
chemic
20/30
condition,
that it
could
veloping
Dr. Lee to
retained
Dr. Bowen
anticipated
prevented.
author of
have been
the lead
She was
defense.
A.
Lorri
regarding POVL:
study published
two additional POVL
Dr. Bowen retained
Society Amesthe-
Lee,
al., The American
et
testify in his
defense as
co-authors
*3
Regis
Loss
Postoperative Visual
siologists
in the POVL
their roles
well.
Surgery
with
Spine
Cases
Analysis
try,
that neither
Study,
court later found
Loss, 105 Amesthesiolo-
Visual
Postoperative
analyz-
role in
played
had
a central
co-author
(the
(2006)
Study"). Submit-
"POVL
gy 652
ing the raw data.
January
the
publication
ted for
placed on the
of the reliance
Because
Study
published
October
POVL
experts,
the
Study
Bowen's
POVL
ac-
Garrigan filed this
month that
the same
to Dr. Bowen a C.R.C.P.
plaintiff submitted
tion.
re-
request for
of information
production
ninety-three
Study examined
The POVL
Study, including,
lating
experts'
to the
POVL
visual
loss
spinal surgery-related
cases
among
things, all medical records sub-
other
registry established
to a
that were submitted
redacted;
registry, albeit
all
mitted to the
Anesthesiologists
Society of
American
by the
notes, analyses,
correspondence
working
and
University
at the
of Wash-
maintained
and
meeting
during
study; all
minutes relat-
the
article
652-58. The
ington. Id. at
even manuals for
registry;
and
the
cases were selected
explained how
programs used in the research.
software
analyzed their
study,
registry for
sum,
all
plaintiff
asked for
documents
characteristics,
demograph-
including patient
registry and the
pertaining to the
POVL
diseases,
ics, coexisting
surgical characteris-
objecting to the broad-
In addition to
ophthalmo-
ties,
management, and
anesthetic
relevance,
ness,
value of
and relative
Although the
findings. Id.
658-56.
logic
responses
sought, Dr. Bowen's
documents
there were limitations
cautioned that
authors
doeu-
explained that the
research
they
study methodology,
con-
experts' posses-
not in his or his
ments were
POVL was associated
cluded that
control.
sion or
prone position.
spine surgery
lengthy
subsequently moved to strike
plaintiff
The
Id. at
658.
experts on reliabili-
testimony of all three
that she
expert disclosure stated
Dr. Lee's
People
ty grounds under C.R.E. 702
Study, that
testify, based on
would
Shreck,
(Colo.2001), or alternative-
within the of C.R.C.P. findings Based on the that Dr. Lee had (8) much plaintiff of the information the considered the raw data Dr. Bowen had sought was contained within the article itself. it, produce failed to prohibited the trial court The motion included an from Dr. affidavit Dr. testifying altogether, per- Lee from but stating Lee that she had not re-reviewed the experts mitted the other two to remain. The raw data or documentation remarked, recognize irony "I opinions in precluding most familiar with cage. The court denied the motion and de- testifying [POVL] from about it. I clined to decide whether Dr. had com- Bowen step necessary believe this in order plied producing those documents that place parties footing on an even at trial." custody, possession, were or control. petitioned sought discovery The then Bowen this court for a rule viola- against why tion sanctions Dr. Bowen on to show cause court's order ground comply that he had failed to with the precluding testimony should not be order, vacated, alternatively seeking default and we issued the rule. We now judgment or of all experts. exclusion three make the rule absolute. 26(b)(1) expert report The court did not return to revive or its earlier even if disclosure alternative assessment the raw data required. was not generally otherwise discoverable under C.R.C.P. (Colo.2010) federal (looking to the Analysis
III -
construing
Crim. P.
guidance
analogue
jurisdiction under
original
our
We exercise
17(c)).
key
of
exclusion
improper
21 because
C.A.R.
required
expert witness disclosures
The
may significantly
witness
26(a)(2)
accompanied by a
must "be
C.R.C.P.
ability
defend
defendant's
undermine
explaining
summary"
report or
written
Adams,
56 P.3d
Benton
case. See
information.
kinds
listing
several
(Colo.2002).
presents a novel
The case
-
-
-
26(a)(2)(B)(I).
report or
sum-
addressed.
previously
have not
we
issue
mary must contain:
must determine
In this
we
(1)
opinions
of all
complete
"a
statement
con
other information
meaning
"data or
and reasons
expressed and the basis
opin
forming the
by the witness
sidered
therefor;"
26(a)(2@)(B)(D.
in C.R.C.P.
forth
ions" as set
(2)
consid-
"the data or other information
26(a)(@2)(B)(I),
under C.R.C.P.
We hold
forming the
witness
ered
"in
information
expert considers
;"
infor
if the
reviews
opinions"
(8)
summary
used as a
"any exhibits to be
forming opinions
purpose
with the
mation
opinions;"
support
for the
rec
case
issue.
about
*5
witness,
(4)
in-
however,
fact-specific
qualifications of the
a
that this is
"the
ognize,
publications
all
au-
cluding a list of
are not
boundaries
precise
which
inquiry for
pre-
by
within the
thored
the witness
by
clear,
will be informed
and which
always
years;"
ceding ten
review
expert's
of an
purpose
timing
the
question.
in
information
(5)
of the
study and
compensation for the
"the
testimony;"
to the trial
we defer
While
(6)
cases
listing of
other
"a
error, People v.
clear
absent
findings of fact
as an
the
has testified
witness
expert
(Colo.2010),
510,
we
512
227 P.3d
Ferguson,
by deposition within the
at trial or
novo, apply
procedure de
rules of
interpret
years"; and
preceding four
construction,
statutory
of
ing principles
Leaf
(7)
1072,
by
expert
the
report
n. 6
a
is issued
44 P.3d
1078
"if
Zarlengo,
v.
fer
L.L.C,.
(Colo.2002);
provided."
v. Svensk Fil
shall
Litig.,
be
Isis
742,
mindustri,
(Colo.App.2007)
P.3d
744
170
added).
26(a)(@2)(B)(I) (emphasis
C.RGCP.
Shell,
162, 178
148 P.3d
People v.
(citing
made,
oppos-
the
are
expert disclosures
Onee
(Colo.2006)).
Accordingly,
give effect
we
relating to an
discovery
may seek
ing party
rule, considering
language of the
express
the
26(b)(4)(A). For
expert's opinion. C.R.C.P.
consistent
giving
as a whole
the rule
may be ac-
deposition
example, a notice
at
Leaffer, 44 P.3d
parts.
to all of its
effect
that is
production
for
companied by request
a
1078.
subpoena
a
34 or
with C.R.C.P.
compliant
to CRCP.
pursuant
look
ambiguity we
we find
Where
Gall,
see,
45(d)(1);
eg.,
30(b)(1),(5); C.R.C.P.
find mean
aids to
interpretational
to other
(defendant
subpoena
served
eron Dist. unlike there (1977) ("The purposes question P.2d behind no Gall had discovery surprise to eliminate rules are considered information in trial, evidence, simplify opinions. Although interpret at discover relevant we now must issues, promote expeditious settle what it means to consider information in (Gall necessity going opinions, ment of cases without the one's nevertheless trial."). However, discovery, including provides guidance. some experts, from not without joining weight authority from (for 26(b)(2)(F)Gi) good limits. See C.R.C.P. jurisdictions recurring other on the issue of cause, may modify discovery court limita protected attorney product work in the con- tions, considering among things, other disclosures, adopted text of we discovery, op cumulative nature of the bright-line disclosure, favoring rule broad information, portunity to obtain the the bur concluding "opinion product work that is proposed discovery, den of the and the rea reviewed or prep- light sonableness of the aration for at trial is discoverable parties alignment number of the and their 26(a)(2)(B) 26(b)(d)(4)." under Rules Id. Fritz, case); see, e.g., Donelson v. 70 P.3d bright-line supported at 239. This rule was (Colo.App.2002) (upholding a trial only by of authorities on the that, finding although requested subject promotes but also the fact that it income records were relevant to the credibili- fairness, efficiency, truth-seeking and the ty witness, the burdensome process compromising policies without request outweighed nature of the the ree- undergirding product the work doctrine. Id. relevance). ords' 289-41. We further held that "an considers documents or Here, materials challenges Dr. Bowen *6 26(a)(2)(B) purposes of Rule where she reads conclusion or reviews them before or in connection with constituted "data or other information con forming opin forming opinion, rely sidered the witness in her even if she does not 26(a)(2)(B)(I). upon ultimately rejects ions" under C.R.C.P. the documents or "[DJata materials." Id. at 241. necessarily or other information" is an elastic phrase. any Data can refer to kind of infor expressly We therefore discussed infor- mation. See Webster's Third New Interna being mation as discoverable under (2002) Dictionary tional (defining "da 26(a)(2)(B) C.R.C.P. if it was considered "in tum," ways, including several as "a fact or preparation trial," and, put for at principle granted presented," "something way, another if it was read or reviewed "be- argument which an inference or an forming fore or in connection with opin- system based or from which an intellectual of Although ion." in Gall we did not reach constructed," any sort is and "detailed infor question today, implicitly addressed we kind"). any term, mation of general As a logically and encompass- viewed the rule as meaning narrowly is not drawn or directed expert information that an reviews with specifically at raw data or other similar purpose forming opinion of an about the may information that underlie the informa particular case at issue and in preparation expert tion an process reviews in the of testifying. contemplates This two limits Rather, forming an in a case. "data meaning of forming "considered in or other phrase information" is a broad inclu opinions" 26(a)(2)(B)(I), under one tem- sive of whatever information an actu poral purpose and one driven. Information ally opinions. considers in prior that an reviewed learning opportunity about, for,
We have had one being to address retained Gall, meaning of "considered." we case is not information that was considered "in forming opinions" analyzed for the case or meaning of "considered" in the protected attorney context of otherwise work "before or connection with [an] opinion." A question, product closer which we do given was to and reviewed an testify. here, after she had been retained to not address arise in- bearing on as underlying data reviewed had might have including the formation preparing articles them reviewed and considered opinion because expert's an selves, position in a with, plaintiff might different for a but contemporaneously from, expert's respect to all such information separately demand purpose as considered articles referenced of a case. of review Langbord expert disclosure. in her Cf. logically inferred are limitations These Treasury, No. 06-CV- Dept. U.S. of purpose language *3 & n. 4 WL 26(a)(2)(B)(I). disclosed is must be What (after 2008) (E.D.Penn. rejecting dis- Oct. expert has ever information all data and book, expert's drafts of the coverability of information but rather and discov- rejecting general relevance also forming her while expert considered 26(b)(1)by dis- erability under Fed.R.Civ.P. If disclosures the case. opinions for job expert's as a tinguishing between expert's of an advance notice provide serve wit- employment as writer and opinions, those the bases for opinionsand ness) ("In professions experts where make disclosure is information for relevant largely publishing arti- livelihood from specifically expert reviewed information cles, discov- approach [would Plaintiffs' allow in which she particular case assessing the every ery every draft of article and described, this view of retained. So conjunction, would re- 26(a)(2)(B)(D) and] used sources properly acknowl- CRCP. poten- of the drafts pur- sult temporality and edges the relevance span tially of articles written over the so dozens when it is not provides guidance pose, and career."). This is an expert's entire must be of information whether certain clear ultimately produced. that even the most liberal construc- disclosed extreme permit. rules cannot tion of the the sources suggests that require To more knowledge open are general expert's anof us, does not the record before this case On discovery, cannot be the case. limitless question to whether Dr. present a close analogized: As one Lee considered the POVL (and hope- analogy An to which Court connection with this Dr. Lee's first data. counsel) attor- involves an fully can relate by Dr. Bowen. case was her retention personal ju- about ney opinion to a client part expert opinion, she relied forming her knowledge *7 a claim. The risdiction over Study and dis- upon published the POVL opinion will look expertise for such accordingly. article No published closed the attorney's law to the for its foundation part in exists-perhaps because evidence past work on cases training and his school deposed-supporting Lee has not been Rule graduation. In the law school after that Dr. Lee's reliance objective conclusion 26(a)(2)(B) sense, however, this does not equivalent to her published is on the his ca- attorney considered mean that the Nor is having the raw data. re-reviewed notes, sebook, outline from class or course had re-reviewed evidence that Dr. Lee there course; a bench memo- procedure his civil during Study's for and the raw data POVL jurisdiction prepared personal randum on did sub- pendency of the case. Lee the clerkship; briefs judge during a for a carefully stated in which she mit an affidavit defending opposing in cases filed other itself, published article than the that other Only if and reviewed jurisdiction. he read underlying any data had not reviewed she forming his in archival documents such Study publication relating to the POVL they "considered." current are in Al- this case. regard to her involvement otherwise, Techs., he has though Garrigan speculates Co. v. Vector Corrosion Euclid Chem. 1:05CV80, Inc., at *6 not suggesting 2007 WL No. submitted evidence 2007). case, the raw data since (N.D.Ohio Dr. Lee has re-reviewed In the May Study, whether con- completing the POVL upon publication- one plaintiff has seized purposes. or for other nection with this case key article-authored perhaps the although findings, factual making In give her upon which she relies by Dr. Lee veracity Dr. Lee's 26(a)(2)(B)(T) did not dismiss is viewed opinion. If C.R.C.P. Instead, noting truth-seeking purposes judicial sys- affidavit. after the narrow of our statement, scope tem. of Dr. Lee's the trial court
proceeded to conclude that Dr. Lee must troubling This is result even more because that, who concede co-author reviewed court, trial excluding after Dr. Lee's tes- forms," underlying "all she saw timony, explained permit it would study data. plaintiff to cross-examine one of the defen- remaining Study dant's POVL co-authors stated, Dr. Lee As court most based on the fact that the had never certainly Study's did consider the POVL raw Thus, Study reviewed the POVL data. But, study. data when she co-authored the provide exeluded one witness who could her detailed review of the raw data was not simultaneously stating such while done connection with this case another the witnesses could be im- yet about which she could not have learned. peached inability for to do so. light scope of C.R.GCP. 26(a)(2)(B)(I), erred, the trial court as a mat- note that also the trial court's reliance law, concluding on the ter of that Dr. Lee neces- statements "data" in Dr. sarily opin- "considered the data to form the misplaced. disclosure is con- expressed study, opinions text, ions in the disclosure discussed the she reiterates this case." The trial court's Study and the authors' conclusions reviewing pub- conclusion follows if applied Garrigan's those conclusions to lished article is the same as language case. The in Dr. Lee's disclosure underlying Starting article's data. from this was similar to that of another of Dr. Bowen's premise, incorrectly mistaken experts, the trial court who also relied on the POVL if opinions opinions concluded that Dr. Lee drew on her in this case. The expressed way suggests she disclosure in no to form that Dr. Lee case, opinions reaching beyond publication her in this then she also must underlying develop raw data itself have considered the POVL raw data opinions. The trial court did not opinions. contrary, to form these 'To the strike the basis, other on this and it should not in this Dr. Lee have stricken Dr. Lee on upon relied this basis. analysis expressed published study, underlying plaintiff argues only way he Nothing data. in the record before us shows meaningfully can challenge Dr. Lee's testi- was, therefore, otherwise. It sufficient for mony by having access to the information produce only Dr. Bowen to disclose and However, the POVL published article. plaintiff provided no sufficient reason under 26(a)(2)(B)(TI) needing the infor- Additionally, experience Dr. Lee's in con- mation. ducting Study, apart from what reported in publication, part forms To the extent he is entitled to cross-exam- *8 general knowledge, regardless of how Study, ine Dr. Lee the POVL experience recent was. The rules re- plaintiff grounds has several which he garding expert contemplate witnesses do not can study examining attack the without a result where a researcher is underlying study plaintiff forbidden to data. The has re- expert as an peatedly forcefully because she too "suspi- and asserted the directly researching involved in and author- cious" context which the POVL particular study. Indeed, reported, alleging gross conducted and bias recognized irony court exeluding of Dr. very beginning and claiming that Society the American Anesthesiologists testimony. of Lee's Under the trial court's rea- registry created the soning, had Dr. Lee not been the to further efforts to lead author Study, of the POVL she liability would have been reduce the anesthesiologists of who permitted testify. The result patients. is to exclude harm their The has also likely the individual most rejected to render a com- by asserted that the has been plete explanation and reliable peer journals of the POVL other review and that at least contrary Such a result runs public expert rejected to the one health has requires rule that jority creates absolute In addi- as erroneous. study's conclusions only the data and infor- assertions, expert to disclose noted it should be to these tion specifically mation the candidly acknowl- itself par- opinion to formulate an weaknesses, reviewed including the of its edges several for which the was re- ticular case voluntarily reported the cases were fact that ap- Moreover, Although principle tained. retrospective. study was and the instances, ex- provides comprehensive many applies it to all study itself propriate in irrespective of the facts and cases methodology source planations thereby pre- of that case and cireumstances analyses and the authors' underpinning data exercising dis- courts from vents trial conclusions, objective re- thereby permitting information an to determine what cretion by others. and criticism view and, hence, what in fair- expert considered improperly exclud- Although the trial adversary. should be disclosed ness case, testimony nothing in this Dr. Lee's ed view, unsup- my In this new construction trial court from forecloses the in this language of C.R.C.P. ported presentation limit the deciding to otherwise 26(a)(2)(B)(I), procedural it eliminates a testimony permitted grounds, manage trial courts use to civil tool which 408 which example pursuant to C.R.E. addition, majority's analysis cases. evidenceon of relevant permits the exelusion departure ap- from our normal represents a confusion, waste of grounds prejudice, pellate standard of review which we con- appears to the defendant note that time. We discovery for an a trial court's orders sider testify in experts to designated three have disagree I of discretion. Because with abuse defense, might suggest unnecessar- majority's construction of Rule - - testimony. duplicative ily 26(a)(2)(B)(I), I In ad- respectfully dissent. dition, apply I would the abuse-of-discretion IV. Conclusion order in this case to the trial court's standard that Dr. Lee did not conclude Because we that his decision to exclude and would hold Study's underlying data consider the POVL manifestly testimony Dr. Lee's was neither formulating connection unreasonable, unfair, and was arbitrary, nor 26(a)(2)(B)(I) did not in this view, my the defen- based in reason. produce the require Dr. Bowen to failure to disclose the raw data dant's production request. response to a data in methodology recent illus- Lee's Therefore, was not in violation of Dr. Bowen adversary who the dilemma of an trates Accordingly, we do not rule. opinion with- of an wants the benefit question of whether this data was reach the oppo- full to his the burden of disclosure out possession, custody, defendant's opinion. of how the reached nent control, question reach the nor do we trial court's viola- propriety of the I. tion sanction. First, I misconstrues believe excluding trial court erred The 26(a)(2)(B)(I). language rule Rule testimony. there- proposed trial disclose "the requires proponent absolute, direct the trial make the rule fore by the or other information considered excluding Dr. Lee's court to vacate its order opinions"; does witness failure to a sanction for the particular case in the words in "the contain proceed- produce, and remand the case *9 By limiting disclo- which she was retained." opinion. ings consistent with the only or other information sure to data forming in her expert considered dissents, BENDER and Justice Justice being particular in case- after retained the joins in the dissent. MARTINEZ contrary majority rule to construes the the wording. with its BENDER, purpose its and inconsistent dissenting. Justice ex majority relies our case Gall particular The adding words in "the By the (Colo.2002) Jamison, rule, 233 44 P.3d the ma- rel. Gall expert disclosure case" to the 240 reads, support holding. upon,
to
I read this case
uses in connection with
and/or
Gall,
differently.
somewhat
opinions").
this court
the formulation of his
it
expert
construed what
means for an
There are a
require
number of reasons to
in
"consider"
or other information form
full
broadly interpret
disclosure and to
concluded,
ing
opinion.
as the ma
phrase
forming
"considered ...
in
opin
have,
jority of courts
that the drafters of the
First,
ions."
by
ensures fairness
eliminat
(in 1993)
equiv
amended federal rule
and the
ing "hide-the-ball
and 'bardball'
tactics."
(in 1995)
alent amended Colorado rule
in
16,
emt.;
Committee
see also Tratt
scope
tended to broaden
discoverable
Citron,
674,
(Colo.2008)
ler v.
182 P.3d
679
including
by
the word
information
"consid
("Among
many
important purposes of
(Gall
ered,"
was in
albeit
the context of
discovery, the most central to a fair trial
attorney
product
by
work
considered
an ex
parties' production
of all relevant evi-
pert witness.
Id.
241. We held that an
dence."). Second, full disclosure is essential
expert "considers documents or materials for
to conduct a full and fair eross-examination.
26(a)(2)(B)
purposes
of Rule
where she
See, e.g.,
Co.,
Ingersoll-Rand
Karn v.
168
reads or reviews them
or in connec
633,
(N.D.Ind.1996)
F.R.D.
639
before
(stating that
tion
forming
opinion,
if
even
she
"useful cross
possible
examination and
im-
rely upon
ultimately rejects
does not
peachment
only
can
accomplished by gain-
documents
(emphasis
or materials." Id.
add
ing access to all of the information that
ed)
Gmeinder,
(citing Johnson v.
191 F.R.D.
shaped
potentially
expert
influenced the
(D.Kan.2000)).
We did not limit this
opinion").
witness's
holding
expert
to information the
The rule the
announces works
being
specific
after
retained
case or with
against
these
encourages
considerations.
It
purpose
forming
an
about a
a "hide-the-ball" tactic in which an expert can
case;
instead,
particular
we defined "consid-
just
shield information considered
before be
ered" to include
expert
documents the
reads
retained,
formally
but which
still be
or reviews "before."
holding, my
This
in
expert's
mind and
expert's
bear on the
view, implies
contrary
that we intended a
opinion, a tactic other courts have discour
today
conclusion to the one
reached
aged
See,
analogous
e.g.,
context.
majority.
Kodak,
(re-
Eastman
241 Carmichael, 187, 147-48, 526 119 U.S. a trial Co. v. that we review novo, it is well settled (1999)). rules, 1167, and the 238 148L.Ed.2d of these S.Ct. application court's violations, imposes for it sanctions majority strips by the The rule announced See, e.g., Pink discretion. abuse of for an by limiting dis- of this discretion trial courts (U.S.) Inc., 211 P.3d Black & Decker v. staff 26(a)(2)(B)(I) only to in- under Rule closure Matlack, Inc., (Colo.2009); 698, Scott v. 702 expert reviewed "with the that an formation (Colo.2002); Energy, 1160, KN 1172 P.3d 39 par- forming opinion an about the purpose of 769, Co., 787 Sugar 698 P.2d Inc. v. Great W. preparation and in ticular case at issue (Colo.1985). abuse of discretion To find an irrespective particular fac- testifying," trial court's deci that the must determine we cireumstances, unreasonable, closely or how connected tual arbitrary, "manifestly is sion to her expert's previous 702. Un research be Pinkstaff, 211 P.3d at or unfair." standard, Maj. op. a trial court at we reverse in a case. 286- this der court "exceeded ruling only majority's if the trial that the concern "sources 37. The rationally choices." available general knowledge" bounds would be expert's anof (Colo.2009) 453, Shari, 465 204P.3d People discovery" subject without to "limitless Big Sky (Bender, J., (quoting dissenting) arguably limitation is at least case-specific Can., Provincial Ltd. v. Sichuan Network Trial Id. at 287. courts rou- questionable. (10th Cir.2008)). 1183, Gov't, 1186 533 F.3d relevancy, tinely make decisions of admissi- necessarily be cases, there "will In most They discoverability, privilege. bility, and answer, possible range a single right but a daily distinguish a required are basis fairly at can and law issue outcomes the facts knowledge expert's general between an among pick than and choose support; rather education, directly relating from information ourselves, de- appellate court] will [an them litigation subject matter of the long judgment so fer to the district expert's directly informing the conclusions rationally realm of these falls within the find Because trial courts facts given a case. Sky, (quoting Big 533 Id. choices." available they testimony, I should take live believe 1186). occurs of discretion An abuse F.3d to determine whether given the discretion a "fails to articulate the trial court when other informa- expert considered data or is and no such reason for his decision reason tion, absolute limitation an- without articu- record or readily apparent majority. by the nounced no in fact or which has basis lates a reason contrary to law. is reason so articulated IH, however, need not be one given, The reason Id. court." agreeable that is Here, as a fact that the trial court found Bueno, 581, B.R. 582-83 248
(quoting In re (D.Colo.2000)). the raw data Dr. Lee considered her supports rationale for this standard Thus, court held that Dr. Lee this case. to act broad discretion the trial court's her source to the adversaries must disclose discovery process. "managerial role" study methodology as a Valley Village Apartments, Bear Todd v. See for her to on behalf precondition (Colo.1999). The com P.2d Noting Dr. Lee is the the defendant. procedure rules of civil the revised ments to Study and one of author of the POVL lead judges expected that trial is state "ilt reviewed all of the co-authors that two assertively management of cases lead the will found, data, "I raw source justice served." C.R.C.P. to ensure concluding [Dr. no hesitation have managerial role is emt. This Committee which underlie the considered the data Lee] "gatekeep role as a to a trial court's similar opinions in this decidingwhether to admit scientific when er" produce the Dr. Lee failed to case." When prevent the testimony and to data, prohibited Elsayed Mukh "junk science." admission of parties testifying place "in order Univ., from Hoyward, 299 F.3d v. Cal. State tar Cir.2002) (9th (citing Kumho Tire footing at trial." on an even *11 finding The trial court's that Dr. only Lee con- disclosure Study, means the POVL not Study data, sidered the POVL source data in form- its underlying raw position id. ing opinions supported in this case is well I suggest appears at odds with this record. by the record. Dr. Lee majority is the director of the While the bolsters this rationale registry and lead author of the POVL with the fact that Dr. Lee's disclosure used Study, published journal which was in the similar language to that of one of the defen- Anesthesiology in October 2006. experts, She is one dant's other undisputed it is that Dr. only two co-authors of the POVL only expert Lee is the to have seen the raw who patient addition, collected and reviewed all of the data. majority places on the comprising forms the raw source data for the the burden proving that Dr. Lee study. Maj. considered the raw op. data. at 287-38. This seems counterintuitive. The defendant The defendant's regard- disclosures duty has the to disclose all the information ing testify regard- Dr. Lee state that will she experts, his only the de- ing not the "conclusions" reached in the possesses fendant necessary the facts but, Study, moreover, "from the data prove Lee, essential what data Dr. study." Twice the defendant's expert, considered. Tyson See Oklahoma v. disclosures also testify state that Dr. Lee will Foods, Inc., 05-CV-829-GKF-PJC, No. that study "there is no data" sup- (N.D.Okla. WL at *4 n. 6 June porting plaintiff's theory negligence. 2009) (noting in apparent dicta this tension of later, Only response to the trial court's placing proof the burden of party on the not determination required that she was to dis- data). possession of the Here the trial data, close the POVL did Dr. Lee explicit court made the finding factual submit stating an affidavit that she had not Dr. Lee considered the raw data in formulat- underlying "reviewed" ing expert opinion. majority in ef- "forming opinions [her] in this matter." This fect disregards finding despite this its record affidavit failed to convince the trial court that support. Dr. Lee had not "considered" the data. Cit- ing both Dr. in reviewing Lee's role all of the Next, the trial prohibit court's order to source data and the defendant's dis- testimony, Lee's as a sanction for failure to stating closures Dr. Lee will disclose her source data and methodol based on study," "the data in this ogy, was within its appears discretion and minimum, court found that "[alt a she consid- given reasonable the broader context of this ered these data to form the ex- case. The Society American of Anesthesiolo pressed in study, opinions which she gists Committee on Liability Professional reiterates this case." created and now registry, funds the POVL my view, majority fails to credit provides the data for appropriately findings these factual when it The ASA formed the Committee on Profes states that support- "[n]o evidence exists ... Liability sional to minimize malprac medical objective conclusion" that Dr. Lee re- tice against claims anesthesiologists reviewed or relied on the raw data in thereby this reduce the anesthesiologists' cost of Maj. op. case. at 237. The con- malpractice insurance. The committee then upon cludes that "Dr. analysis Lee relied Project, founded the Closed Claims a data expressed in study, not base of case malpractice summaries of closed data." claims, Id. at 238. It reasons primary as its approach to achieve the word "data" in objective.1 The Committee on Profes record, Although part pert article on publishing testimony witnesses and the ASA origin website discusses approach ASA newsletter. This failed be- Project. Closed initially Claims It states that cause the charged members of the committee Liability sought Committee on Professional testimony were not they "expert solve what prob- termed the witness questionable often convinced that the claimed by soliciting deposition lem" Thereafter, trial and testimony lacked merit. the commit- from members of the ASA who claimed to have approach, tee turned to its current the Closed testimony by been plaintiffs' victims of false Project. ex- Claims A second article states that *12 unreasonable, unfair, registry and it is based Liability sponsors sional Project.2 reason. the Closed Claims part of as publish was addition, the POVL majority assigns fault to Lastly, Anesthesiology. journal, own in the ASA's ed of Dr. Lee be- exclusion its the article claims the defendant Although fact that she was spite and in cause of it has publication, reviewed for peer
was Study, which author of the POVL the lead journal's peer review provided the never likely most to ren- her the "individual made Anesthesiology is court.3 methodology to the explanation of complete and reliable a der peer reviewed journal that has Maj. op. sug- I Study." 288. POVL study has publication, Sinee its article. much. The proves too that this claim gest study data has the replicated, nor not been experts, Drs. two other retained defendant that other public so to the released been Roth, testify to the ultimate Newman methodology and its review researchers trial of the POVL conclusions conclusions. testimony is admis- ruled that their court has my context, light this Given us. reliability is not before and their sible 26(a)(2)(B)(I) pro- of Rule interpretation frequently more have testified Both doctors disclosure, it was within full viding Lee, Dr. experts than as forensic that Dr. (Dr. to determine court's discretion trial Lee of Dr. Lee hourly exceed that rates data and methodol- had "considered" Lee trial, charges Dr. Roth $2000/day of charges pre- and to POVL ogy trial, charges Dr. Newman $750/hour unless she disclosed testifying trial). However, her from vent unlike $6000/day of study is by the reached The conclusion it. Lee, Dr. Roth has Dr. Newman nor neither produce novel, has failed the defense underlying study data and knowledge of the of its method- reviews independent scientific indicate that methodology. This seems to Commit- findings, and the ASA and its ology value to the defendant probative Dr. Lee's Liability, which funded Professional tee on testify to the raw ability to this case is her Study, directly benefits from study and her direct underlying the circumstances, the trial findings. In these If Dr. testi- analyzing it. involvement reasonably determined have could essential, court the defendant mony then effectively cross-exam- could not raw and disclosed the have obtained should if Even the raw data. Lee without ine Dr. plaintiff would have data so re-review Dr. Lee did not one assumes fairly. conclusions to test her opportunity in this being retained data since the source MAR- to state that Justice I am authorized | found, a there is as the trial joins in dissent. TINEZ this that her to conclude basis reasonable litigation sufficiently connected directly on her enough bear and recent Although the in this case. court's decision agree
may not testimony, I believe Dr. Lee's
to exelude for this court is not one decision
this Rather, lies within the sanction
make. to ensure trial discretion court's
ambit such, the trial impartial trial. As fair and arbitrary, manifestly order here is not of the com- are members seven authors Project through the committee the Closed Claims mittee, including Lee. been that "have published several studies has attorneys to de- extensively by defense utilized anesthesiologists malpractice." fend Anesthesiology three retracted In March falsified the author because articles it Armstrong, Top Winstein & David data. Keith J. a list of registry's contains website 2. The POVL Profes- Studies, Data of the ASA Committee Hospi- Scientist Fabricated the members Pain at A12. 11, 2009, Liability. that five of the J., Mar. It shows Wall Street sional tal Says,