Harrison v. Barclay

23CA0700 Harrison v Barclay 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0700

Morgan County District Court No. 20CV30062

Honorable Robert C. James, Judge

Elizabeth Harrison,

Plaintiff-Appellant and Cross-Appellee,

v.

Peyton Barclay,

Defendant-Appellee and Cross-Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division VI

Opinion by JUDGE FREYRE

Lipinsky and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 5, 2024

Bachus & Schanker, LLC, Corey A. Holton, Denver, Colorado, for

Plaintiff-Appellant and Cross-Appellee

Hall Booth Smith, P.C., Elizabeth C. Moran, Jeremy J. Balu, Greenwood

Village, Colorado, for Defendant-Appellee and Cross-Appellant

1

¶ 1 Plaintiff, Elizabeth Harrison, appeals the trial court’s judgment

awarding her $13,452.10 in damages against defendant, Peyton

Barclay. We affirm in part, reverse in part, and remand for a new

trial.

I. Background

¶ 2 On July 23, 2019, Barclay turned the wrong way down a

one-way street and collided with Harrison’s vehicle.

¶ 3 Although Harrison declined medical treatment at the scene,

she went to an emergency room, where her right foot was x-rayed.

She was discharged and returned home. The next day, Harrison

returned to the emergency room, complaining of neck and upper

back pain, headaches, nausea, dizziness, and confusion.

¶ 4 On July 26, 2019, Harrison saw her primary care physician,

Dr. Donald Kruglet. Dr. Kruglet diagnosed Harrison with muscle

spasms in the neck and shoulder. He recommended physical

therapy. At a follow-up appointment on August 14, Harrison told

Dr. Kruglet that her neck was better but that she still had

occasional headaches. Dr. Kruglet recommended that Harrison

2

continue with physical therapy and return if her pain did not

subside. Harrison attended two physical therapy sessions.

¶ 5 In September 2019, Harrison sought a second opinion from

Dr. Alicia Feldman. Dr. Feldman referred Harrison to ProActive

Chiropractic and Active Integrated Medicine (ProActive) for neck

pain. On her intake form at ProActive, Harrison reported neck and

back pain. Similarly, on a pictorial diagram, she depicted pain in

her neck and right shoulder. On the intake form, Harrison also

noted a previous lower back injury unrelated to the car accident.

¶ 6 On September 25, Allison Kennedy, a ProActive nurse

practitioner, treated Harrison. Kennedy provided trigger point

injections to Harrison’s cervical spine, neck, and shoulder. On

October 4, Harrison saw Dr. Leif Stephens, a chiropractor at

ProActive, who diagnosed her with subluxations of her cervical

spine and pelvis. Dr. Stephens did not note any complaints of lower

back pain. Then, on October 11, Harrison saw Dr. Jared Gruhl,

another chiropractor at ProActive. Dr. Gruhl’s records did not note

any lower back pain. Nevertheless, Dr. Gruhl performed dry

needling on Harrison’s lower back and pelvic muscles.

3

¶ 7 On October 15, Harrison saw Dr. Gruhl and Dr. Stephens.

Again, neither physician noted any lower back pain or diagnosis in

their records. Nevertheless, Dr. Stephens performed a full-body

adjustment.

¶ 8 On October 17 and 18, Harrison again saw Kennedy and Dr.

Stephens. For the first time, she complained of “sharp, stabbing,

burning” lower back pain radiating to her abdomen. Dr. Stephens

performed another full-body adjustment and ordered x-rays of

Harrison’s lumbar spine. After reviewing the x-rays, Dr. Stephens

ordered an MRI of Harrison’s lower back. Ultimately, Kennedy

noted Harrison suffered from lumbago, lower back pain, and

sciatica.

¶ 9 On April 27, 2020, Harrison asked Dr. Kruglet for a referral to

an orthopedic surgeon for the pain in her neck, back, lower back,

and right buttocks; her headaches; and the numbness in her right

leg.

4

¶ 10 Harrison filed her complaint on September 24, 2020, alleging

that Barclay was negligent in causing the accident.

1

Harrison

claimed injuries to her left foot, left knee, lower back, and right

neck and sought economic, noneconomic, physical impairment, and

disfigurement damages.

¶ 11 Harrison continued to receive treatment for her lower back

issues. Eventually, Harrison was referred for pain management.

On August 6, 2021, she saw Louis C. Seagar, M.D. Dr. Seagar

identified pain levels in Harrison’s lower spine through a technique

called proactive discography. Dr. Seagar also reviewed Harrison’s

medical records and prepared a report for trial. Harrison

designated him as an expert, and the court qualified him at trial as

an expert in pain management and anesthesiology, with a specialty

in interventional pain management and spinal diagnostics. Dr.

Seagar opined that Harrison’s lower back pain resulted from the car

accident.

1

Harrison’s complaint is not in the appellate record, so we take

judicial notice of her amended complaint in the district court file.

See Walker v. Van Laningham, 148 P.3d 397, 397-98 (Colo. App.

2006).

5

¶ 12 In contrast, Dr. Lloyd Westin Mobley III, who was qualified as

an expert in neurosurgery, testified for the defense. After reviewing

Harrison’s medical records, Dr. Mobley opined that Harrison’s lower

back pain was not caused by the car accident but instead was

caused by the chiropractic care she received at ProActive.

¶ 13 Barclay admitted negligence for causing the accident, but she

contested the extent of Harrison’s injuries and the cause of her

lower back pain. Approximately one year before the trial and over

Harrison’s objection, the court granted Barclay’s motion to

designate ProActive as a nonparty at fault and, later, at trial,

instructed the jury accordingly.

¶ 14 A jury found that Harrison was injured in the car accident and

that Barclay and ProActive were the causes of Harrison’s injuries,

damages, and losses. The jury awarded Harrison $75,000 in

noneconomic damages and $47,291.79 in economic damages. The

jury apportioned 11% fault to Barclay and 89% fault to ProActive.

The trial court then reduced the jury award based on the jury’s

allocation of fault to ProActive and entered final judgment against

Barclay in the amount of $13,452.10.

6

¶ 15 Harrison contends that the trial court erred by (1) striking her

request for future damages as a sanction for her repeated discovery

violations and by not reconsidering its ruling; (2) allowing Barclay to

designate ProActive as a nonparty at fault; and (3) incorrectly

instructing the jury regarding the original tortfeasor rule. We

disagree with her first contention and discern no abuse of discretion

in the court’s imposition of the sanction or its ruling denying

reconsideration. Thus, we affirm this portion of the judgment.

¶ 16 However, we agree that the trial court legally erred by granting

Barclay’s motion to designate ProActive as a nonparty at fault

because the designation failed to comply with the statute’s third

factor. Accordingly, we reverse the judgment and remand the case

for a new trial. Because we are reversing the judgment, we need

not address Harrison’s remaining contentions.

II. Claim for Future Damages

¶ 17 Harrison contends that the trial court abused its discretion by

striking her request for future damages and by declining to

reconsider its ruling. We are not persuaded.

7

A. Additional Facts

¶ 18 On December 3, 2021, six weeks before the original trial date,

Barclay requested discovery sanctions or, in the alternative, a

continuance of the trial because Harrison disclosed Dr. Kruglet’s

medical records late, despite having downloaded them a month

earlier. Barclay argued that the late disclosure rendered her unable

to determine the extent of Harrison’s injuries, including the fact

that Harrison made no complaints about lower back pain to Dr.

Kruglet between July and August 2019. This new information, she

argued, required her expert to issue a supplemental opinion that

could not be completed before trial. Additionally, Barclay argued

that Harrison still had not produced (1) records from a workplace

fall and related worker’s compensation claim that occurred after the

car accident; (2) magnetic resonance imaging (MRI) records of her

cervical and lumbar spine; and (3) commercial trucking educational

licensure and employment records.

2

¶ 19 The trial court granted Barclay’s motion to continue the trial,

but it did not impose further sanctions on Harrison. The court

2

Harrison was a commercially licensed truck driver.

8

ordered Harrison to produce records of all of her MRIs from July 11,

2011, to the present; Dr. Kruglet’s medical records from 2015; and

Nationwide’s worker’s compensation claim file. It then set a

disclosure deadline of January 31, 2022. The court also ordered

the parties to confer regarding any further discovery difficulties and

to file a joint status report in February 2022 outlining any

remaining discovery issues and whether further court intervention

was necessary. The trial court warned Harrison that her failure to

meet her future disclosure obligations would result in sanctions.

¶ 20 The parties’ February joint status report, signed by counsel,

stated that all disclosures, with the exception of Nationwide’s

workers’ compensation file, had been provided. In April 2022, the

court continued the trial for reasons unrelated to the disclosure

issues and reset the trial for September 6, 2022.

¶ 21 On July 15, Harrison disclosed, for the first time, that Dr.

Steven Kraljic, a neurosurgeon in North Dakota, evaluated her in

September 2021, and provided a one-page report. At a pretrial

hearing on July 18, Harrison disclosed nine more pages of Dr.

Kraljic’s report. Barclay argued that this late disclosure prejudiced

9

her because it required her expert, Dr. Mobley, to review the newly

disclosed documents and to issue an updated written opinion.

Moreover, Barclay noted that Harrison had never communicated at

previous conferences any difficulties in obtaining these records, and

she requested that the court dismiss all of Harrison’s claims as a

sanction. Harrison responded that Barclay had been on notice of

Dr. Kraljic because, in Harrison’s deposition, she said a doctor in

North Dakota had treated her. And Harrison conceded that she

originally requested Dr. Kraljic’s records in September 2021.

¶ 22 The court sanctioned Harrison’s counsel by ordering counsel

to pay Barclay’s fees and costs incurred from July 18 forward

relating to fact and expert discovery, as well as fees and costs

incurred in any motions practice reasonably related to her untimely

disclosure of Dr. Kraljic and his records. The court further ordered

counsel to confirm by August 1 that all of Harrison’s treating

providers had been disclosed and that all their medical records had

been produced. The court also extended Barclay’s discovery

deadline related to Dr. Kraljic’s treatment to August 30.

10

¶ 23 On July 29, Harrison produced Dr. Kraljic’s records, along

with a new set of records identifying additional providers, including

Luke Roller, M.D. Dr. Kraljic’s records included a reference to Dr.

Roller’s review of an MRI of Harrison’s lumbar spine.

¶ 24 On August 15, Barclay submitted a renewed motion to dismiss

Harrison’s complaint or, in the alternative, to strike plaintiff’s

request for future damages. Barclay argued that Harrison’s counsel

had failed to disclose the MRI images requested at the December

2021 hearing and had untimely disclosed Dr. Kraljic and Dr. Roller.

She further argued that she was prejudiced because the untimely

disclosures, particularly the MRIs, denied her an adequate

opportunity to defend against Harrison’s requests for future

damages, specifically the damages related to Harrison’s lower back

pain.

¶ 25 In a thorough written order, the trial court granted the motion

in part and struck Harrison’s request for future damages. It first

noted that counsel admitted the January 2021 MRI was “not on her

radar” and that she never requested it before the court’s January

31, 2022, deadline. The court found, “There simply is no excuse for

11

failing to provide, yet again, relevant medical records or imaging

after the Court already held a hearing for the exact same issue nine

months ago and issued very specific orders regarding the regulation

of discovery in this case.”

¶ 26 The court noted counsel’s failures to adequately explain why

she

• signed a joint discovery statement indicating there were

no outstanding issues except for the workers’

compensation file, when subsequent events revealed that

not to be true;

• failed to confer or contact the defense to explain the

multitude of issues that kept arising from her failed

attempts to obtain medical records;

• failed to follow-up with her client to ensure that all

provider information was accounted for; and

• failed to request any extension of the discovery deadlines

to keep the court apprised of the discovery issues that

were cropping up.

12

¶ 27 The trial court then found that the untimely disclosures

prejudiced Barclay in multiple ways. It found that Barclay’s expert,

Dr. Mobley, could not render an opinion because he had never seen

the recent MRIs, and it refused to speculate that he could do so by

simply reading a written summary of them. The court also found

that defense counsel was left with limited time to depose Dr. Kraljic

and Dr. Roller, whose records tended to support Barclay’s position

in the case, and that merely barring their testimony would reward

counsel’s bad actions. The court noted it had previously attempted

to cure the discovery violations with continuances and specific

discovery orders, to no avail. It then denied Barclay’s request to

dismiss all claims, but it dismissed Harrison’s request for future

damages.

¶ 28 On September 1, Barclay informed the court that she was still

missing MRI images of Harrison’s lower back from January 2021

and July 2022 and asked the court to strike any claim and

damages related to Harrison’s lower back pain. When the court

refused to do so, Barclay requested a continuance and said her

counsel needed more time to receive the MRIs and to depose Dr.

13

Roller. Barclay also informed the court that one of her attorneys

had tested positive for COVID-19. Harrison did not object to

continuing the trial for that reason. Without objection, the court

continued the trial and extended the deadline for disclosure of the

MRIs and Dr. Roller’s deposition.

¶ 29 Harrison then filed a motion to reconsider and to set aside the

order striking her request for future damages. She asserted that

Barclay had suffered no harm from the late disclosures because the

court cured any harm through the continuance and extended

discovery deadline. She noted that the court had chosen one of the

severest sanctions possible and urged it to consider lesser

sanctions. The court denied the motion.

B. Standard of Review and Controlling Law

¶ 30 We review the trial court’s sanctions for discovery violations

for an abuse of discretion. Pinkstaff v. Black & Decker (U.S.) Inc.,

211 P.3d 698, 702 (Colo. 2009). A trial court abuses its discretion

if its decision is manifestly arbitrary, unreasonable, or unfair. Sch.

Dist. No. 12 v. Sec. Life of Denver Ins. Co., 185 P.3d 781, 787 (Colo.

2008).

14

¶ 31 Sanctions under C.R.C.P. 37 “should be applied in a manner

that effectuates proportionality between the sanction imposed and

the culpability of the disobedient party.” Pinkstaff, 211 P.3d at 702

(quoting Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 677 (Colo.

1987)). The court “must craft an appropriate sanction by

considering the complete range of sanctions and weighing the

sanction in light of the full record in the case.” Id. (quoting Nagy v.

Dist. Ct., 762 P.2d 158, 161 (Colo. 1988)). Courts should “impose

the least severe sanction that will ensure there is full compliance

with a court’s discovery orders and is commensurate with the

prejudice caused to the opposing party.” Id.

¶ 32 Trial courts have broad discretion in imposing sanctions for

noncompliance. Id. However, this discretion is not unlimited.

People v. Lee, 18 P.3d 192, 196 (Colo. 2001).

¶ 33 A party’s mandatory disclosures under C.R.C.P. 26(a)(1) are

broad, are self-executing, and require disclosure of information

“whether or not supportive of the disclosing party’s claims or

defenses.”

15

C. Analysis

¶ 34 We conclude, for three reasons, that the trial court did not

abuse its discretion by striking Harrison’s request for future

damages. First, Harrison’s counsel’s failure to comply with the

original disclosure deadlines necessitated a continuance of the first

trial setting — a lesser sanction than dismissal of all Harrison’s

claims that Barclay had requested for the violation. To ensure

future compliance, the trial court entered a specific discovery order

that required the parties to complete discovery by January 31,

2022; to confer; and to submit a status report in February

confirming compliance and the lack of outstanding discovery

issues.

¶ 35 Second, despite the court’s specific discovery order, the status

report counsel submitted in February stated that the only

outstanding item was production of Nationwide’s workers’

compensation file — a statement the record reveals was not true.

Harrison’s counsel never advised Barclay, and omitted from the

status report, that six days before the discovery deadline, she had

requested MRIs that were taken a year earlier. Further, Harrison’s

16

counsel never informed Barclay’s counsel of the existence of these

images, the professionals who reviewed them, or any difficulties in

obtaining them in direct contravention of the trial court’s discovery

order.

¶ 36 Third, this omitted information did not come to light until five

months later (and less than two months before the September trial

date), when Harrison’s counsel revealed that Dr. Kraljic and Dr.

Roller had treated Harrison and ordered MRIs. But at this point,

Barclay could not take further depositions until the end of August,

which impacted the September trial date. Moreover, counsel also

disclosed that Harrison had another MRI scan in July 2022 that

had not yet been provided.

¶ 37 Given the record of counsel’s repeated discovery violations,

lack of candor to the court and opposing counsel, and Harrison’s

appellate counsel’s

3

concession in the opening brief that it was “at

least arguably” within the trial court’s discretion to strike Harrison’s

request for future damages, we conclude that dismissing the

request for future damages was appropriate under C.R.C.P. 37 and

3

Trial and appellate counsel are not the same individual.

17

that it effectuated proportionality between the sanction and the

misconduct. See Kwik Way Stores, 745 P.2d at 677. Accordingly,

we discern no abuse of discretion in the trial court’s decision to

dismiss Harrison’s request for future damages. See Pinkstaff, 211

P.3d at 702.

¶ 38 We further conclude that the trial court did not abuse its

discretion by denying Harrison’s motion for reconsideration. She

claims that the continuance of the trial “ameliorated” the reasons

the court struck her request for future damages and the resulting

prejudice to Barclay. For the first time on appeal, Harrison argues

that the trial would have been continued despite the nondisclosures

due to Barclay’s co-counsel’s COVID-19 infection. Even assuming,

without deciding, that we may consider co-counsel’s illness, we are

not persuaded because the court’s decision to strike the request for

future damages constituted the culmination of a series of

progressive sanctions for Harrison’s counsel’s continued disregard

of the court’s orders. The continuance of the September trial

constituted yet another sanction for additional discovery violations

that did not cure the prejudice to Barclay. Moreover, nothing in the

18

record supports Harrison’s assertion on appeal that co-counsel’s

COVID-19 illness would have necessitated a continuance of the

September trial date or that co-counsel could not have proceeded to

trial absent the recent discovery violations.

¶ 39 We are not persuaded otherwise by Harrison’s reliance on

Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo. 1999).

In Todd, the supreme court recognized that failure to meet a

discovery deadline is harmless to the other party when the trial is

continued for reasons independent of discovery matters. Id. at 980.

But as previously stated, the trial was continued because of

Harrison’s failure to comply with discovery disclosures, not

Barclay’s co-counsel’s illness.

¶ 40 Accordingly, we discern no abuse of discretion and affirm the

court’s dismissal of Harrison’s request for future damages.

III. Nonparty Designation

¶ 41 Harrison next contends that the trial court erroneously

allowed Barclay to designate ProActive as a nonparty at fault. We

agree.

19

A. Additional Facts

¶ 42 Barclay filed a designation of nonparties at fault that she later

amended. In her amended designation, Barclay argued that, before

receiving treatment at ProActive, Harrison did not complain of lower

back pain. As evidence, Barclay provided Harrison’s deposition, in

which Harrison stated that the chiropractic care she received not

only did not help her pain but made it worse:

Q: Did your overall condition improve with

chiropractic care?

A: No. It worsened.

Q: Tell me about that a little bit.

A: When I went in for the adjustment on my

neck, they did a full body adjustment. And

once they started pressing on areas and doing

their adjustment, I immediately had like really

severe pain, and I told them about it. And

Proactive Chiropractic — or chiropractors don’t

automatically do MRIs. So they immediately

put me up to do an appointment for an MRI

because of the pain that the adjustment

contributed to my back, and then that’s when I

got the MRI.

¶ 43 The amended designation further stated:

To the extent Plaintiff Harrison’s treating

providers with Proactive Chiropractic caused

an injury to Plaintiff Harrison’s lower back,

and/or exacerbated the pain associated with a

20

condition and/or injury in Plaintiff Harrison’s

lower back that pre-dated the Accident,

Proactive Chiropractic’s negligence may be

partially or wholly responsible for the existence

of Plaintiff Harrison’s physical conditions

and/or injuries in her lower back, which

Plaintiff Harrison alleges resulted in damages

for which she now seeks recovery against

Defendant Peyton Barclay.

¶ 44 Barclay also included the pictorial pain diagrams on which

Harrison indicated right side neck and shoulder pain up to the time

she received a full-body adjustment. These diagrams illustrated

that her lower back pain manifested for the first time after the

adjustment.

¶ 45 The final paragraph of the amended designation confirmed

that Barclay was contemporaneously filing a certificate of review

under sections 13-20-602 and 13-21-111.5(3), C.R.S. 2024,

4

in

which Dr. Mobley opined that the designation of ProActive as a

nonparty at fault did not lack substantial justification.

¶ 46 Harrison objected to Barclay’s amended designation and

argued that Dr. Mobley had not set forth facts or opinions that

would support a prima facie case that ProActive was negligent. On

4

The statutes have not changed, so we refer to the current versions.

21

appeal, Harrison argues that the designation failed to connect the

alleged facts with the established elements of negligence.

B. Standard of Review and Controlling Law

¶ 47 We review de novo whether a defendant’s nonparty designation

complied with the requirements of section 13-21-111.5(3)(b).

Section 13-21-111.5 provides that a defendant may designate a

nonparty who is wholly or partially at fault for the injury claimed by

the plaintiff.

¶ 48 The statute provides:

Negligence or fault of a nonparty may be

considered if the . . . defending party gives

notice that a nonparty was wholly or partially

at fault within ninety days following

commencement of the action . . . . The notice

shall be given by filing a pleading in the action

designating such nonparty . . . , together with

a brief statement of the basis for believing

such nonparty to be at fault. . . . If the

designated nonparty is a licensed health-care

professional and the defendant designating

such nonparty alleges professional negligence

by such nonparty, the requirements and

procedures of section 13-20-602 shall apply.

§ 13-21-111.5(3)(b).

¶ 49 As relevant here, to satisfy the statutory requirements, a

defendant must submit a brief statement of the nonparty’s fault,

22

and because a chiropractor is a licensed health care professional, a

certificate of review under section 13-20-602.

¶ 50 In pertinent part, section 13-20-602 provides:

(1)(a) In every action for damages or indemnity

based upon the alleged professional negligence

of . . . a licensed professional, the plaintiff’s or

complainant’s attorney shall file with the court

a certificate of review . . . .

. . . .

(3)(a) A certificate of review shall be executed

by the attorney for the plaintiff or complainant

declaring:

(I) That the attorney has consulted a person

who has expertise in the area of the alleged

negligent conduct; and

(II) That the professional . . . has reviewed the

known facts, including such records,

documents, and other materials which the

professional has found to be relevant to the

allegations of negligent conduct and, based on

the review of such facts, has concluded that

the filing of the claim, counterclaim, or cross

claim does not lack substantial

justification . . . .

¶ 51 In providing a brief statement of the nonparty’s fault, the

designating party need not prove the nonparty’s fault, but the

statement must “go beyond bald allegation.” Redden v. SCI Colo.

Funeral Servs. Inc., 38 P.3d 75, 81 (Colo. 2001). The designating

23

party must “allege the basis for believing . . . the non-party’s acts or

omissions would satisfy all the elements of a negligence claim” by

“connect[ing] alleged facts with the established elements of

negligence,” which include a legal duty of care, breach of that duty,

injury, and causation of the injury. Id.; see also Lopez v. Trujillo,

2016 COA 53, ¶ 9, aff’d, 2017 CO 79.

C. Analysis

¶ 52 We conclude that Barclay’s amended designation of nonparties

at fault did not connect the alleged facts with the elements of

negligence because it failed to set forth a standard of care for

chiropractors or a breach of that standard by Proactive and, thus,

was deficient as a matter of law.

¶ 53 In Redden, the Colorado supreme court addressed the

statutory requirements associated with designating a professional

nonparty at fault in tort litigation. Redden, the plaintiff, was in a

car accident with an employee of SCI Funeral Services and filed a

personal injury claim against SCI. 38 P.3d at 78. SCI later filed a

designation identifying Redden’s chiropractor as a nonparty at fault

under section 13-21-111.5(3)(b). Id. The designation said that

24

Redden’s treating physician could not rule out the chiropractor’s

treatment as the cause of Redden’s carotid artery tear and blood

clots. Id. SCI filed an accompanying certificate of review, in which

a professional opined that the designation did not lack substantial

justification under section 13-17-102(4), C.R.S. 2024. Id. at 79.

¶ 54 The court focused its analysis on the sufficiency of the brief

statement of the basis for the nonparty’s fault. Id. at 80. The court

held that a simple statement supporting only causation did not

satisfy the statutory requirement of an allegation of fault or

negligence. Id. It reasoned that the statute should be construed

strictly to avoid attributing liability to a party from whom the

plaintiff could not recover. Id.

¶ 55 Moreover, the supreme court noted that professionals are

judged according to the field in which they practice and that a

successful claimant must demonstrate that the professional’s

conduct “fell below the standard of care appropriate to the

profession.” Id. at 81. Thus, “courts require claimants, as part of a

professional negligence claim, to establish the appropriate standard

of care.” Id. It then held that, to satisfy the statute’s third element,

25

“a party must allege the basis for believing the non-party legally

liable to the extent the non-party’s acts or omissions would satisfy

all the elements of a negligence claim. A designation that alleges

only causation is insufficient as a matter of law . . . .” Id. at 81

(footnote omitted).

¶ 56 As in Redden, Barclay’s amended designation established

causation by showing that Harrison did not report back pain until

after she sought care at ProActive, but it never established the

standard of care for chiropractors or that ProActive beached that

standard. Indeed, Barclay’s designation makes no reference to a

chiropractic standard of care, and Barclay provided no information

indicating that, within the chiropractic profession, it was improper

to treat Harrison’s lower back before she was diagnosed with lower

back pain.

¶ 57 Moreover, Barclay never explained how Dr. Mobley, a

neurosurgeon, could opine on the chiropractic standard of care.

Indeed, physicians who practice a medical specialty possess a

higher degree of skill than a general practitioner and thus, are held

to a higher standard of care within that specialty. Hall v. Frankel,

26

190 P.3d 852, 858 (Colo. App. 2008). Therefore, a medical

professional who does not practice within a specialty may not opine

about the standard of care applicable to that specialty “unless the

expert demonstrates a substantial familiarity with the other

specialty and a similarity between the standards of care in the two

fields.” Id. Because Barclay’s amended designation failed to

establish a standard of care for chiropractors or a breach of that

standard, we conclude that it was insufficient as a matter of law

and that the trial court erred by allowing Barclay to designate

ProActive as a nonparty at fault.

¶ 58 Finally, to the extent Harrison argues that trial evidence can

“cure” deficiencies in a designation, we disagree. She cites no

authority to support this argument, and we conclude that such a

proposition would defeat the purpose of the rule requiring nonparty

designations before trial.

¶ 59 Accordingly, we reverse the judgment and remand the case for

a new trial.

27

IV. Disposition

¶ 60 The judgment is affirmed in part, reversed in part, and the

case is remanded for a new trial.

JUDGE LIPINSKY and JUDGE SCHUTZ concur.

Case Details

Case Name: Harrison v. Barclay

Court Name: Colorado Court of Appeals

Date Published: Sep 5, 2024

Docket Number: 23CA0700

Court Abbreviation: Colo. Ct. App.