Bаrbara L. TRATTLER, individually, as representative of the Estate of Larry Trattler, deceased, and as next friend of Larry T. Trattler, Adam G. Trattler, and Andrew D. Trattler, minor children, Petitioner v. Daniel C. CITRON, M.D.; Colorado Internal Medicine Center, P.C.; Mark W. Keller, M.D.; and Aurora Denver Cardiology Associates, P.C., Respondents.
No. 06SC681.
Supreme Court of Colorado, En Banc.
April 14, 2008.
Rehearing Denied May 12, 2008.
182 P.3d 674
* Justice Eid would grant the Petition.
Montgomery Little Soran & Murray, P.C., Amy E. Cook-Olson, Stephen J. Henson, C. Todd Drake, Greenwood Village, Colorado, Attorneys for Respondents Mark W. Keller, M.D. and Aurora Denver Cardiology.
Markusson, Green & Jarvis, P.C., David B. Bush, Denver, Colorado, Attorneys for Amicus Curiae Colorado Defense Lawyers Association.
The Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, Attorney for Amicus Curiae The Colorado Trial Lawyers Association.
Justice MARTINEZ delivered the Opinion of the Court.
In this appeal, we review the unpublished opinion of the court of appeals in Trattler v. Citron, No. 04CA2113, 2006 WL 2506741 (Colo.App. Aug. 31, 2006). The court of appeals affirmed the trial court‘s order that two of the plaintiff‘s expеrts were properly excluded from testifying in a wrongful death action. Interpreting the disclosure provisions in
We reverse the ruling of the court of appeals that
I. Facts and Procedural History
Barbara Trattler (“Trattler“), wife of the deceased Larry T. Trattler, brought this wrongful death action on behalf of herself, as next friend, as representative to the estate of the deceased, and on behalf of the deceased‘s two sons. She alleges that two doctors, Daniel Citron (“Dr. Citron“) and Mark Keller (“Dr. Keller“), along with their respective partnerships, Colorado Internal Medicine Center and Aurora Denver Cardiology Associates respectively, were liable for the decedent‘s death when they failed to find the arterial blockage that eventually led to his heart attack.
In 1989, the deceased retained Dr. Citron as his primary physician. During the twelve years preceding his death, the deceased began registering an elevated cholesterol count, necessitating cholesterol inhibitors to curb a high LDL count. In November 1999, Dr. Citron ordered an EBCT scan to determine the extent to which the deceased exhibited calcium deposits in and around his coronary arteries. The deceased posted an EBCT score in the “slightly” to “highly” elevated range, suggesting the existence of arterial plaque.
Subsequently, Dr. Citron increased the deceased‘s cholesterol medications and referred him to a cardiologist, Dr. Keller, who was retained for the purpose of ruling out obstructive heart disease. Dr. Keller conducted a stress EKG on the decedent to test for heart abnormalities. Finding nothing out of the ordinary in the test results, Dr. Keller advised the decedent to continue treatment with Dr. Citron.
In late November or early December 2001, the deceased called Dr. Citron‘s office complaining of chest pains. Based on the description of the pain, Dr. Citron advised the deceased that the symptoms likely were not heart-related. Despite Dr. Citron‘s belief that the pain represented nothing serious, the deceased scheduled a complete physical for January 4, 2002. However, on December 22, 2001, the deceased suffered a sudden severe heart attack, which left him in a deep coma. He did not regain consciousness. With no prognosis for recovery and a high likelihood of brain damage, his family removed the deceased from life support on December 27, 2001. When he died, Larry Trattler was fifty years old. An autopsy later indicated that the deceased‘s heart attack was due to heart failure as a consequence of coronary blockage.
On her husband‘s behalf, Barbara Trattler filed suit against Drs. Citron and Keller, along with their partnerships, alleging substandard care, including the failure to offer a more sensitive cardiac test to detect obstructive heart disease. To prove her case, Trattler hired Drs. Jay Schapira (“Dr. Schapira“) and Richard Birrer (“Dr. Birrer“), along with a third doctor, to serve as expert witnesses to demonstrate that Drs. Citron and Keller failed to meet their respective standards of care.
Specifically, Dr. Schapira was of the opinion that both Drs. Citron and Keller provided substandard medical care to Larry Trattler. Dr. Schapira was prepared to testify that Dr. Keller did not order the appropriate medical test and, as a result, did not detect Larry Trattler‘s obstructive heart disease. Further, Dr. Schapira was prepared to testify that Dr. Citron did not obtain Larry Trattler‘s informed consent by failing to refer Larry Trattler for additional tests once he posted a high heart score and complained of chest pains.
Dr. Birrer was prepared to testify that a stress thallium test should have been ordered by either Dr. Citron or Dr. Keller when Larry Trattler exhibited a high heart score and chest pains. In addition, Dr. Birrer was of the opinion that Dr. Citron should have referred Larry Trattler to an emergency room when he exhibited chest pains in the days before the heart attack. Unlike the third doctor, who was an academic doctor at a teaching hospital, both Drs. Birrer and Schapira were practicing clinicians with sub-
In accordance with
Several weeks after the 120-day deadline passed, Trattler updated the experts’ partial testimonial history and promised to supplement the list as additional information became available. Not waiting for Trattler to file a complete testimonial history for both experts, defendants’ attorneys consulted a defense attorneys’ expert witness database to compile their own list of cases in which Drs. Schapira and Birrer had previously testified. While it is unclear from the record whether the defendants’ list was exhaustive, it was far more complete than the early lists provided by Trattler.
On June 15, 2004, when Dr. Schapira was deposed, defendants’ attorneys used their more complete testimonial history to ask Dr. Schapira the details of several cases Trattler failed to disclose. This prompted a meeting between Trattler‘s attorney and Dr. Schapira over the lunch break, where Dr. Schapira attempted to remember every case in which he had testified over the prеvious four years and provided an updated list to the defense. However, this too was an incomplete list. When the parties did not finish the deposition in the eight hours allotted, Trattler agreed to allow the defendants a second day to depose Schapira so that they could further inquire about Schapira‘s testimonial history.
Similarly, when defendants’ attorneys deposed Dr. Birrer a week later, he too was asked about cases not listed in his disclosure documents. Dr. Birrer also attempted to supplement his testimonial history. At the end of Dr. Birrer‘s deposition, the parties again agreed to continue the deposition at an undetermined later date so that the defendants could ask more questions about Dr. Birrer‘s past testimony once that testimonial history was known to them.
Before Drs. Schapira and Birrer could be scheduled for additional depositions, however, defendants filed motions to strike both Drs. Schapira and Birrer, claiming that еach failed to provide adequate testimonial histories as required by
The defendants ignored Trattler‘s effort to schedule additional depositions. Instead, the defendants filed a motion with the trial court on July 2, 2004, to exclude the testimony of both experts. On August 18, 2004, less than four days before trial, the court issued a written order ruling in favor of defendants’ motion to strike Trattler‘s experts. The trial court ordered that neither Dr. Schapira nor Dr. Birrer could testify at trial.
As to Dr. Schapira, the trial court found that he “did not timely comply with the
The trial court‘s written ruling also barred testimony from Dr. Birrer. The court found that, like Dr. Schapira, Dr. Birrer failed to adequately comply with
The day after the trial court issued the ruling precluding Drs. Schapira and Birrer from testifying, the court heard Trattler‘s motion to reconsider the exclusion of her two expert witnesses. At the hearing, Trattler made several arguments as to why the court‘s sanction was unwarranted or, at the very least, too harsh. She informed the court that both experts were from out-of-state and had never encountered a rule requiring full disclosure of past testimony, thus they did not have records that allowed for easy compliance. She also contended that once it became apparent that the experts were having difficulty adhering to the rule, Trattler made every attempt to help her experts properly disclose the information to the defendants. Further, she informed the court that, at least in the case of Dr. Birrer, he had difficulty accessing his old rеcords, having left his previous practice to join another professional group. As for Dr. Schapira, the parties disputed whether he had provided a complete testimonial history. Trattler claimed that a full, complete, and comprehensive list of Dr. Schapira‘s testimonial history was provided on July 9, 2004, some six weeks before trial. The defendants, however, insisted that they discovered as many as fifteen additional cases in which Dr. Schapira testified even after Trattler claimed his testimonial history was complete.
Trattler also argued that the defendants already possessed or could have easily accessed the missing testimonial history through a defense attorneys’ database. A transcript of the hearing demonstrates that Trattler‘s counsel argued to the court that the defendants were not harmed by the late disclosure:
Trattler‘s Attorney: Judge, I‘ll represent to you that if you ask these lawyers as officers of the court whether they had access to all of the information which was supplemented related to Dr. Schapira, [including] cases, case names, case numbers, lawyers, et cetera, they will have to admit they did. They will have to admit this is all available. Every single one of those cases was available to them and all of that information was available to them. And, if you ask them, and I request that the court [ask] this, “how much of it did you have prior to Dr. Schapira‘s deposition?” I suspect that they will have to admit that they had all of it, or they had access to all of it, because they have access to defendants’ deposition bank, which contains all of this information.
The court did not ask the defendants’ attorneys whether they possessed or had easy
Trattler‘s Attorney: Judge, just one other thing.... There is a harmless part to this argument. I am not asking you to change your ruling, but I would ask the court to inquire of [defense counsel]... how much of the disclosure he had at the time of Dr. Schapira‘s deposition, because it goes directly to the harmless portion of the test. And, while [defense counsel] is correct that the rule requires that the witness disclose this information, it also goes on to say that before the witness is stricken, there is a determination of whether it‘s harmless. If he had everything, then this becomes a legal game, which it shouldn‘t be.
The Court: Well, I‘m not going to require [defense counsel] to answer that question.
When the court denied Trattler‘s motion to reconsider, Trattler then made two additional motions. She moved for the court to grant a continuance so that Drs. Schapira and Birrer could further supplement the record. In the absence of that, Trattler moved that the court grant a continuance sо she could replace her lost experts. The court denied both of these motions. At no point during discussions of the failure to timely provide complete testimonial histories did the trial court acknowledge awareness of any possible sanctions other than witness preclusion, which it believed was required by the rule.
The trial went forward as scheduled three days after the motion hearing. Trattler presented her case to a jury, but without an expert witness to testify to Dr. Keller‘s standard of care, the court granted summary judgment for the defendants as to her claim against Dr. Keller. The claims against Dr. Citron went to the jury with only the testimony of Trattler‘s third expert witness. Dr. Citron was found not liable.
Trattler appealed, arguing that the trial court‘s exclusion of her two expert witnesses was an abuse of discretion. The court of appeals affirmed, holding that
II. Analysis
Among the many important purposes of discovery, the most central to a fair trial is the parties’ production of all relevant evidence. J.P. v. Dist. Court, 873 P.2d 745, 748 (Colo.1994); see also Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 977 (Colo.1999); Bond v. Dist. Court, 682 P.2d 33, 35 (Colo.1984). Here, we consider whether Trattler‘s failure to disclose her experts’ recent testimonial history, in violation of
Because both parties agree and the court found that Trattler failed to timely disclose a portion of Drs. Schapira and Birrer‘s testimonial history, the question here is whether
A. Rule 37(c)(1)
A party that without substantial justification fails to disclose information required by
C.R.C.P. Rules 26(a) or 26(e) shall not, unless such failure is harmless, be permitted to present any evidence not so disclosed at trial or on a motion made pursuant toC.R.C.P. 56 .
This part of the rule neither requires nor authorizеs the preclusion of evidence that was disclosed.
The final sentence of
In addition to, or in lieu of this action, the court, on motion after affording an opportunity to be heard, may impose other appropriate sanctions, which, in addition to requiring payment of reasonable expenses including attorney fees caused by the failure, may include any of the actions authorized pursuant to subsections (b)(2)(A), (b)(2)(B), and (b)(2)(C) of this rule.
Thus, there are two significant parts to subsection (c) of Rule 37. The first provides for preclusion of evidence not disclosed, and the second provides for other appropriate sanctions “in addition to or in lieu of” preclusion of undisclosed evidence, where preclusion of undisclosed evidenсe is either inappropriate or insufficient.
As with the first portion of the rule, the other sanctions in the second part of
There is no argument as to whether Trattler violated
Trattler makes a second argument that her failure to provide her experts’ testimonial history caused the defendants no harm because they possessed or could have easily accessed the undisclosed information. Because the record before us is inadequate and because we find in Trattler‘s favor on the ground that the court imposed an inappropriate sanction under
B. Preclusion of Evidence Under Rule 37(c)(1)
Trattler‘s central contention is that the trial court erred when it read
In Todd, we applied the first provision of
Similarly, in Cook, we held that a trial court acts within its discretion when it sanctions a party for failure to endorse an expert witness in a timely manner. 168 P.3d at 507. As in Todd, the automatic sanction in Cook was preclusion of the undisclosed evidence, the expert‘s testimony. See id. 168 P.3d at 506. Thus, in both Todd and Cook, the evidence that was precluded was the evidence that was not disclosed.
We did not find it necessary in Todd or Cook to discuss whether a court could sanction a failure to disclose information by precluding evidence that was properly disclosed. On three occasions since we decided Todd, the court of appeals has cited our opinion in Todd, which addresses the preclusion of undisclosed evidence required by the first part of
Here, the evidence that Trattler failed to disclose was not the identity of Trattler‘s experts but her experts’ testimonial history. Thus, when the court determined that a sanc-
C. Alternative Sanctions Under Rule 37(c)(1)
Alternative sanctions are provided for in the last sentence of
Here, the defendants knew the identity of Trattler‘s experts and had timely received other disclosures required by
While an expert‘s past testimony may be useful when the opposing party seeks to impeach that expert during cross-examination, the expert‘s testimonial history is not central to the case. Here, the defendants knew the identity of the experts, received all relevant information about the experts except for a portion of their testimonial history, had ready access to the experts’ testimonial history by use of a defense attorney‘s database, and had already undertaken lengthy depositions of each of Trattler‘s experts, including extensive questioning of the doctors’ expertise, their previous testimony in other cases, and their opinions on the present case. In addition, defendants had the opportunity to depose each doctor a second time prior to trial. Thus, much of the experts’ forensic testimony was thoroughly probed prior to the defendants’
The record also indicates that the trial court believed Trattler acted in good faith and was not to blame for her experts’ failure to fully disclose their testimonial history. In its written order, the court stated: “I do not fault petitioners’ counsel, who seem to have made repeated efforts to persuade Dr. Schapira to make the required disclosure.” Finally, because the defendants possessed or could easily have accessed Trattler‘s experts’ testimonial history through a defendants’ database, the possible harm arising from late or incomplete disclosure of the experts’ testimonial history was, at least, greatly minimized. In light of these circumstances, precluding Trattler‘s experts from testifying was disproportionate to the failure to disclose testimonial history.
Where preclusion of the undisclosed evidence is not a proper sanction, the appropriate alternative sanction should be in keeping with the significance of the violation. We reaffirm the principle that sanctions should be directly commensurate with the prejudice caused to the opposing party. See Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 677 (Colo.1987). Consequently, we have previously held that “it is unreasonable to deny a party an opportunity to present relevant evidence based on a draconian application of pretrial rules.” J.P., 873 P.2d at 750 (citing Nagy v. Dist. Court, 762 P.2d 158 (Colo.1988)). Further, Colorado courts have held that when a party violates the discovery rules, trial courts are permitted “to choose an appropriate sanction, which may include evidence preclusion. However, that sanction is not mandatory.” Genova v. Longs Peak Emergency Physicians, 72 P.3d 454, 466 (Colo.App.2003). In so doing, “the trial court must strive to afford all parties their day in court and an opportunity to present all relevant evidence at trial.” Todd, 980 P.2d at 979. We reaffirm, as we did in Todd, our longstanding principle that the objective of the discovery rules is “to provide a ‘just, speedy, and inexpensive determination’ of civil cases.” See id. (quoting
When considering an appropriate sanction for nondisclosure or late disclosure of testimonial history, the trial court should be guided by the alternatives specified in
III. Conclusion
Because the court misread
Justice EID dissents.
Justice EID, dissenting.
It is undisputed in this case that Trattler failed to disclose her expert witnesses’ testimonial histories as required by
I.
A party that without substantial justification fails to disclose information required by [
Rule 26(a) ] shall not, unless such failure is harmless, be permitted to present any evidence not so disclosed at trial....
(Emphasis added.) The majority reasons that the “information” and “any evidence” are the same thing. As applied here, the majority reasons, because Trattler failed to disclose her experts’ testimonial histories,
I disagree with the majority‘s reading because it renders expert witness preclusion inapplicable in all but a narrow set of cases—that is, where the party has failed to disclose the witness‘s identity. That is because under the majority‘s interpretation, the “evidence” excluded and the “information” not disclosed must be the same thing, and that is only true for expert witness preclusion when the “information” is the expert witness‘s identity. Thus, under the majority‘s interpretation, if the party fails to disclose other information required by Rule 26(a)(2)—for example, the witness‘s field of expertise; his opinions to be expressed; the data he considered in forming his opinions; the amount he was compensated for the testimony; or, as here, an expert‘s voluminous testimonial history—the trial court cannоt exclude the witness, regardless of how willful or grossly negligent the nondisclosure was.
Unlike the majority, I do not believe the language of
Moreover, the trial court‘s action in this case was justified under the second sentence of
Significantly, I could find no decision in Colorado or elsewhere adopting the majority‘s interpretation. On the contrary, our courts have consistently permitted expert witness preclusion for failure to comply with
The majority appears to be concerned that in this particular case, expert witness preclusion was too harsh a sanction for Trattler‘s failure to disclose her experts’ testimonial histories. For example, it suggests that testimonial history is “not central to the case” because it will only be used by the defendants for impeachment purposes; that Trattler‘s expert reports were complete except for the testimonial histories; that the defendants could access the experts’ testimonial histories in a computer database; that the defendants could have deposed the experts a second time; and that Trattler was not to blame for her experts’ nondisclosures. Maj. op. at 682. From this, the majority cоncludes that the trial court‘s sanction of “precluding Trattler‘s experts from testifying was disproportionate to the failure to disclose testimonial history.” Id.
Yet
Contrary to the majority‘s conclusion, see id. at 681-82, I do not believe that the trial court in this case believed that expert witness preclusion was mandatory, nor could it, given that a motion for sanctions was made. Rather, it based its decision on the circumstances of this particular case, finding that other possible remedies such as additional depositions or continuing the trial were not appropriate. The trial court‘s findings of fact and the record before us indicate that Trattler‘s initial expert disclosures, due 120 days before trial but filed one week thereafter based on Trattler‘s request to postpone the deadline, provided no testimonial history for either Dr. Schapira or Dr. Birrer, despite the clear requirements of
Dr. Birrer‘s list filed on May 20, 2004, ninety days before trial, contained only six cases. His list was not supplemented before June 21, when defendants took his deposition. Dr. Birrer testified that his list wаs incomplete and that he had lost access to his administrative calendar when he left his previous job on May 29, 2004. He conceded that he did have access to his administrative calendar on April 30, 2004, when the initial expert disclosures were filed, and on May 20, 2004, when his incomplete list of cases was provided. Through their own efforts, defendants later located six additional cases in which Dr. Birrer had testified. Three weeks after the deposition, and only thirty-nine days before trial, Trattler filed a supplemental disclosure listing a total of fourteen cases. However, Dr. Birrer provided no certification that the list was complete and accurate—nor could he, given that he had lost access to his calendar, and that he could not recall his prior testimonial history.
It is thus unclear to this day whether complete testimonial histories for these experts were ever provided. Dr. Schapira‘s final testimonial history omitted fifteen cases discovered through the defendants’ independent research. Further, Dr. Birrer would never be able to certify a complete and accurate testimonial history, because he did not provide a full list during the time that he had access to his administrative calendar and because he was unable to reconstruct a complete list of cases from memory.
In my view, the trial court was acting within its discretion when it found that these nondisclosures warranted preclusion of the expert witnesses’ testimony. The trial court found that based on “[t]he sheer volume of the testimony Dr. Schapira failed to disclose“—including over a hundred cases that were disclosed after the disclosure deadline—his conduct was “either willful or grossly negligent.” The trial court concluded that the nondisclosure was not harmless, in that most of Dr. Schapira‘s cases were not disclosed until after his deposition, and that the offer of a second deposition only a few weeks before trial was an insufficient remedy. As for Dr. Birrer, the trial court concluded that “[d]isclosing only half the cases where a witness has given deposition or trial testimony is not substantial compliance, and the lack of disclosure is not harmless” for the same reasons provided with regard to Dr. Schapira, and because Dr. Birrer was unable to certify that his list was complete. In addition, the court made an implicit finding of willfulness or gross negligence on the part of Dr. Birrer, stating:
[He] attempted to excuse his failure to produce a complete list by claiming that he did not have access to his administrative calendar due to a change in employment. However, he was still at the employment where his administrative calendar was located on computer [sic] at the time of the original [disclosure] and the first supplemental disclosure.
The purposes of the
II.
For the foregoing reasons, I would find that expert witness preclusion was an avail-