HomeMy WebLinkAbout2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 033 - Motion In Limine To Exlcude Or Limit Expert Testimony For Failure To ComplyDISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 498-6100
Plaintiffs: STUWARD CROSS AND KATRINA
RICHMAN
v.
Defendant: THE CITY OF FORT COLLINS, State of
Colorado
COURT USE ONLY
Andrew W. Callahan, #52421
Julie M. Yates, #36393
WICK & TRAUTWEIN, LLC
P.O. Box 2166
Fort Collins, CO 80522
Phone: (970) 482-4011
Email: acallahan@wicklaw.com; jyates@wicklaw.com
Case Number: 2020 CV 30363
Courtroom: 5A
DEFENDANT’S MOTION IN LIMINE TO EXCLUDE OR LIMIT EXPERT
WITNESES TESTIMONY UNDER C.R.C.P. 37
FOR FAILURE TO COMPLY WITH C.R.C.P. 26(a)(2)(A) AND (26)(a)(2)(B)(II)
COMES NOW Defendant the City of Fort Collins, by and through counsel, Andrew W.
Callahan and Julie M. Yates of Wick & Trautwein, LLC, and files its motion in limine to exclude
or limit expert testimony as follows:
Rule 121 Certification: Undersigned counsel states that he conferred with Plaintiffs’
counsel, Laura Browne regarding the instant motion. Plaintiffs oppose the motion.
BACKGROUND
This is a personal injury lawsuit by Plaintiffs against the City of Fort Collins arising out
of an automobile collision. Both Plaintiffs had significant pre-existing health issues prior to the
collision which are the same or similar to the injury claims they are now alleging were caused by
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the collision. For example, Plaintiff Richman was on her way home from a physical therapy
appoint at the time of the accident, and is claiming injuries to the same portion of her body.
The City contests that the accident in question caused any of the injuries claimed by Plaintiffs.
On May 25, 2021, Plaintiffs Expert Disclosures pursuant to Colorado Rule of Civil
Procedure (26)(a)(2)(B)(II) “Other Experts.” (Exhibit A). In their disclosures, Plaintiffs list
thirty-four (34) medical providers as their “expert witnesses.” The experts listed appeared to be
treating medical service providers as opposed to experts specifically retained for the purpose of
providing expert testimony at trial.
Plaintiffs note in their disclosures that all expert witnesses will testify as to:
. . . opinions at the time of trial pertaining to causation, damages,
prognosis, impairment rating, permanency, past and future
limitations, disabilities and consequential inabilities to work, other
issues raised by the Defendants, and any other necessary for injuries
arising out of the accident. They are expected to testify that their care
and treatment was billed at a reasonable amount and was necessary
for injuries arising out of the accident. [emphasis added]
However, Plaintiffs’ disclosures do not provide any information on causation or
damages, but appear to be a recitation of Plaintiffs’ respective medical records and medical visits
without providing any actual identifying opinions or substantive testimony. These disclosures
do not meet the requirements of C.R.C.P. (26)(a)(2)(B)(II), and Plaintiffs’ failure is not
harmless.
LEGAL STANDARD
(A) Colorado Rules of Civil Procedure, Rule 26(a)(2)(B)(II), provides that
. . . the disclosures shall be made by a written report or statement that
shall include:
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(a) a complete description of all opinions to be expressed and the
basis and reason therefor;
(b) A list of the qualifications of the witness; and
(c) copies of any exhibits to be used as a summary of or support
for the opinions.
If the witness does not prepare a written report, the party’s lawyer or
the party, if self-represented, may prepare a statement and shall sign it.
The witness’s direct testimony expressing an expert opinion shall be
limited to matters disclosed in detail in the report or statement.
[emphasis added]
(B) Colorado Rules of Civil Procedure 26(a)(2) provides that,
In addition to the disclosures required by subsection (a)(1) of this Rule, a party
shall disclose to the other parties, the identity of any person who may present
evidence at trial pursuant to Rules 702, 703, or 705 of the Colorado Rules of
Evidence, together with an identification of the person’s fields of expertise.
[emphasis added]
(C) Colorado Rule of Civil Procedure 37 provides the mechanism for enforcement as
follows:
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 motion pursuant to C.R.C.P. 56.
(D) Caselaw Provides a Mechanism for Enforcement.
The Colorado Courts have held that failure to comply with the expert disclosure
requirements allows and warrants the trial court to impose the sanction of precluding such
testimony, including expert testimony. Woznicki v. Musick, 119 P.3d 567, 575 (Colo. App.
2005) citing Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo. 1999). Unless the
failure to disclose is either substantially justified or harmless, C.R.C.P. 37 sanctions are
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warranted. The Colorado Court of Appeals has indicated that C.R.C.P. 37 sanction is automatic
and self-executing. Svendsen v. Robinson, 94 P.3d 1204, 1206 (Colo. App.2004).
ARGUMENT
Plaintiffs’ expert witness disclosures do not meet the requirements under the C.R.C.P.
26(a)(2)(A) or 26(a)(2)(B)(II). Defendant City of Fort Collins, pursuant to C.R.C.P. 37, requests
that the testimony of the experts be excluded and/or limited to that which was disclosed –
Plaintiffs’ failure to meet the requires of the rules was neither justifiable nor harmless.
(A) FAILURE TO LIST QUALIFICATIONS
Plaintiffs failed to list the qualifications for all thirty-four (34) experts. Plaintiffs failed
to provide any curriculum vitaes, publications, or descriptions of the fields of expertise for any
of the expert witnesses listed and thus should be prohibited from calling the witnesses as expert
witnesses. Trattler v. Citron, 182 P.3d 674, 683-684 (Colo. 2008), Moss v. Home Depot U.S.A.,
Inc., 2019 WL 5095719, *5 (D.Colo. 2019).
(B) FAILURE TO PROVIDE A COMPLETE DESCRIPTION OF ALL
OPINIONS TO BE EXPRESSED AND THE BASIS AND REASON
THEREFOR
Comment 21 to the C.R.C.P. 26, states that the purpose of the rule is to ensure a
disclosure of all opinions to be expressed by an expert and the underlying reasons for the opinion
so that “the parties know, well in advance of trial, the substance of all expert opinions that may
be offered at trial….If an expert’s opinions and facts supporting the opinions are disclosed in a
manner that gives the opposing party notice of the specific opinion and supporting facts, the
purpose of the rule is accomplished.
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Plaintiffs failed to provide detailed description of the specific testimony of each witness -
Plaintiffs appears to simply have copied the medical reports for each Plaintiff leaving Defendant
City of Fort Collins no ability to determine the anticipate testimony and most importantly, with
no ability to determine the opinion of each witness, the basis upon which they render an
opinion or their qualifications.
In Plaintiffs’ introduction and prior to listing the thirty-four medical treatment providers,
Plaintiffs state the following:
They are expected to provide opinions at the time of trial pertaining to
causation, damages, prognosis, impairment rating, permanency, past
and future limitations, disabilities and consequential inabilities to
work, other issues raised by the Defendants, and any other necessary
for injuries arising out of the accident. They are expected to testify that
their care and treatment was billed at a reasonable amount and was
necessary for injuries arising out of the accident. [emphasis added]
However, under the individual disclosures, there is no narrative or designation regarding
causation, damages, prognosis, impairment rating, permanency, p ast and future limitation,
disabilities, and consequential inabilities to work, and/or information regarding the
reasonableness of amount billed for services. In short, there are no designated opinions for the
following experts:
[Expert Witnesses for Stuward Cross]
1. James, Esser, MD
2. Scott Parker, DC
3. Melodie Nicholas, RMT
4. Robert Nystrom, DO
5. Shimon Blau, MD
6. Keith Meier, FNP-C
7. Kelly Lindauer, MD
8. Arnaldo Da Silva, MD
9. Bradley J. Martin, PA-C
10. Isaac Jones, MD:
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11. Becky K. Benz, MD
12. Arden M. Mahaffey, DO
13. Bradley J. Martin, PA-C
14. Andrew Mills, MD
15. John C. Mann, PA-C
16. Jordan Allison, PT, DPT
17. Anna Siliciano, DPT
18. Erik Hermstad, MD
[Expert Witnesses for Katrina Richman]
1. Jordan Allison, PT, DPT
2. Jason Dooley, PTA
3. Meggan B. Jorgensen, DPT
4. Derick W. Page, PTA
5. Sarah Baily, DPT
6. Sierra Evers-Hellmich, PTA
7. Rebecca Paratore, PTA
8. Anna Siliciano, DPT
9. Erik Hermstad, MD
10. Amy Hayes, MD
11. Kevin Limbaugh, MD
12. James Campain, MD
13. Katie M. Weatherhogg, MD
14. Kristin Andreen, MD
15. Diana M. Jackson, FNP
16. David R. Marchant, MD
17. Heather Schnorr, FNP
18. Elizabeth Baggett, EMT
19. Colin M. Carpenter, MD
(C) TESTIMONY ATTRIBUTED TO “THESE PROVIDERS” WITHOUT
ANY FURTHER IDENTIFICATION OF THE INDIVIDUAL SHOULD BE
EXCLUDED.
Plaintiffs provide several paragraphs of testimony, which Plaintiffs attribute to
anticipated testimony to be given by “These providers” without specifically identifying the
witness who will be testifying to such matters. Defendant requests that “These providers” be
prohibited from testifying to any opinions as to causation, damages, prognosis, impairment
rating, permanency, past and future limitations, disabilities and consequential inabilities to work
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or any other matters as a result of Plaintiffs failure to identify the individual who would be
testifying to the matters disclosed.
(D) EXPERTS LISTED WITH NO LISTED TESTIMONY SHOULD BE
EXCLUDED.
Plaintiffs listed the following medical providers as experts witnesses for Mr. Cross but
provided no accompanying disclosure or description of testimony and therefore should not be
permitted to be called to testify in any capacity:
[Experts for Mr. Stuward Cross]
1. Bren Schmidt, MPT
2. Lauren ProvencSio, SPT
3. Vincent Lombardi, MD
4. Andrew Mills, MD
[Experts for Katrina Richman]
1. Jordan Allison, PT, DPT
2. Jason Dooley, PTA
3. Meggan B. Jorgensen, DPT
4. Derick W. Page, PTA
5. Sarah Baily, DPT
6. Sierra Evers-Hellmich, PTA
7. Rebecca Paratore, PTA
IV. CONCLUSION AND REQUEST
Defendant respectfully requests the following:
(1) That the treating physicians disclosed in Plaintiff’s initial expert disclosures be
prohibited to testifying in an expert capacity for failure to provide a description of
their qualifications as an expert under C.R.C.P. 26(a)(2)(A);
(2) That the treating physicians disclosed in Plaintiff’s initial expert disclosures be
prohibited from testifying in an expert capacity for failure to provide a description
of any anticipated expert opinion and/or the basis of any expert opinion;
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(3) In the alternative, if any witness is allowed to be called as an expert despite the
above non-compliance, that the following expert witnesses be prohibited from
being called based on Plaintiffs’ failure to provide any disclosure regarding any
anticipated testimony: Bren Schmidt, MPT, Lauren ProvencSio, SPT, Vincent
Lombardi, MD, Andrew Mills, MD, Jordan Allison, PT, DPT, Jason Dooley,
PTA, Meggan B. Jorgensen, DPT, Derick W. Page, PTA, Sarah Baily, DPT,
Sierra Evers-Hellmich, PTA, Rebecca Paratore, PTA; and
(4) That Plaintiffs be prohibited from introducing any evidence which they have
attributed to “These witnesses” for failure to identify the specific individual
expert who will be testifying to those matters.
Respectfully submitted this 11th day of October, 2021.
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Julie M. Yates, #36393
Attorneys for Defendant
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CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing DEFENDANT’S
MOTION IN LIMINE TO EXCLUDE OR LIMIT EXPERT WITNESES TESTIMONY
UNDER C.R.C.P. 37 FOR FAILURE TO COMPLY WITH C.R.C.P. 26(a)(2)(A) AND
(26)(a)(2)(B)(II) was filed via the Colorado Courts E-Filing System and served this 11th day of
October, 2021, on the following:
Laura Browne – lbrowne@sawayalaw.com
Ashley N. Fridovich – afridovich@sawayalaw.com
The Sawaya Law Firm
1600 N. Ogden Street
Denver, CO 80218
Adam Stephens – adstephens@fcgov.com
FORT COLLINS CITY ATTORNEY’S OFFICE
P.O. Box 580
Fort Collins, CO 80522
s/ Jody L. Minch