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Kallas v. Spinozzi

Court of Appeals of Colorado, First Division

December 4, 2014

Vivian Kallas, Plaintiff-Appellant,
Louis A. Spinozzi, O.D., Defendant-Appellee

Douglas County District Court No. 10CV2846. Honorable Richard B. Caschette, Judge.

Lego Law Firm, Robert T. Lego, Englewood, Colorado, for Plaintiff-Appellant.

Hunter & Associates, Karen R. Wasson, Denver, Colorado, for Defendant-Appellee.

Opinion by CHIEF JUDGE LOEB. Sternberg[*] and Ney, JJ., concur.



Page 608

[¶1] Plaintiff, Vivian Kallas, appeals from the trial court's judgment dismissing with prejudice her medical malpractice action against defendant, Louis A. Spinozzi, O.D. We affirm.

I. Background and Procedural History

[¶2] Because the issues in this appeal relate directly to the very long and complex pretrial history in this case, we begin by summarizing in some detail that procedural history and background.

[¶3] On September 24, 2010, Kallas filed this action against Spinozzi, a licensed optometrist. Kallas asserted claims of professional negligence, battery, and lack of informed consent arising from a procedure Spinozzi performed on her right eye.

[¶4] A jury trial was originally set for July 24, 2012. Shortly before trial, Kallas moved for a continuance because her medical expert witness withdrew from the case. The court granted the motion and reset the trial for April 15, 2013.

[¶5] Kallas retained a new expert, Dr. Wirostko, to testify on the standard of care and other medical issues. The expert issued reports in August and November of 2012. The parties scheduled Dr. Wirostko's deposition for December 10, 2012, in Utah, where the expert lived. However, on November 28, Kallas's counsel, who describes himself as a sole practitioner, fell in his home and was hospitalized with serious injuries. As a result, he could not travel to Utah to defend the expert deposition as scheduled. Spinozzi's counsel contacted Kallas's counsel throughout the month of December to reschedule the deposition but was unable to reach him. On January 8, 2013, Spinozzi moved to compel the expert deposition.

[¶6] The trial court, on its own motion, held a telephone status hearing on January 31 to address the situation and determine whether the parties would be ready for trial on April 15. Kallas's counsel informed the court that " it [was] impractical for [him] to practice law at this time" because he had been in hospitals and rehabilitation centers since the accident. The court asked him whether he had considered bringing in another lawyer to try the case, noting that the case was already two and a half years old. Kallas's counsel responded that he did not want to bring in other counsel. The court stated:

[I]n no way, [counsel], am I downplaying your physical illness. . . . But I, I also

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have an, an active case here that has been set for trial 3 times that needs resolution . . . . I'm not hearing anything from you that suggests that you are going to be in any condition in the near term to handle this case, and . . . I'm not hearing anything from you that tells me with any reasonable degree of certainty or even probability when you will be, be able to begin actively moving this case. . . . [I]f you are not in a position to be able to handle this case, then you need to make other arrangements.

[¶7] Kallas's counsel reiterated that he would not bring in other counsel, speculating that he would be ready to defend the deposition in March and try the case in April. He specifically stated that he did not want a continuance.

[¶8] The court then addressed the expert deposition. The court ordered the parties to conduct the deposition during the first week of March by telephone so that Kallas's counsel would not have to travel to Utah. Kallas's counsel refused Spinozzi's offer to contact the expert directly about scheduling, assuring the court that he or other lawyers with whom he was associated would handle it. The court directed Kallas's counsel to have someone contact Spinozzi's counsel within forty-eight hours to schedule the deposition.

[¶9] Kallas's counsel did not contact Spinozzi's counsel within that timeframe. Subsequently, Kallas's counsel e-mailed Spinozzi's counsel to propose that the deposition take place on March 4 at 2:00 p.m. Spinozzi's counsel responded, agreeing to the March 4 date and requesting the expert's telephone number and office location so that she could make final arrangements for the deposition. Although Kallas's counsel emailed Spinozzi's counsel several more times before March 4, he never provided the requested information. Spinozzi's counsel was thus unable to notice the deposition, set up the conference call, or arrange for a court reporter to be present at the expert's office.

[¶10] Spinozzi's counsel also tried unsuccessfully to obtain the file of documents that the expert reviewed in preparing her report. She prepared a subpoena duces tecum for the documents and retained a process server who made eleven unsuccessful attempts to serve it on the expert. Spinozzi then moved to compel production of the expert's file. The court initially denied it for failure to confer, but after Spinozzi amended the motion to include conferral attempts, the court granted the motion on February 28. The court ordered Kallas to produce the expert file by the afternoon of Friday, March 1 -- one business day before the deposition was scheduled to take place on Monday, March 4. Neither Kallas nor her counsel produced the file as ordered.

[¶11] By the evening of Friday, March 1, Spinozzi still did not have the expert's file or the logistical information necessary to move forward with the Monday deposition. Spinozzi moved to strike Kallas's expert. The court initially granted the motion to strike the expert in a written order on March 25. At a scheduling hearing on March 29 at which Kallas's counsel failed to appear, the trial court reaffirmed its March 25 order granting Spinozzi's motion to strike the expert.

[¶12] At the March 29 hearing, Spinozzi moved to dismiss the action, arguing that Kallas could not prove her claims without an expert witness. The trial court delayed ruling on the motion to give Kallas an opportunity to respond.

[¶13] During this time, Kallas's counsel continued to face serious health problems. He was briefly discharged from the rehabilitation facility on March 2, but he fell again on March 3 and was readmitted to the hospital. On April 1, he moved to continue the April 15 trial date because of his ongoing health issues and requested an expedited hearing on his motion. The court granted the request for an expedited hearing, which was set for April 11. Kallas's counsel did not appear at the hearing in person or by telephone. At the April 11 hearing, the court denied Kallas's motion for a continuance in a written order and stated that the case would go to trial as scheduled on April 15. On April 12, Kallas's counsel responded to Spinozzi's motion to dismiss, reiterating the argument that the case should be continued.

[¶14] On April 15, the first day of trial, Spinozzi and his counsel appeared and announced

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they were ready to proceed to trial. Kallas appeared without her counsel. Another attorney appeared to make a statement on behalf of Kallas's counsel regarding his medical condition, but did not enter an appearance for Kallas in the case. The attorney informed the court that Kallas's counsel remained in a rehabilitation center and was unable to try the case at that time. Kallas herself stated that she was not prepared to go to trial and requested a continuance. The court then granted Spinozzi's motion to dismiss the case with prejudice for failure to prosecute. This appeal followed.

II. Discussion

[¶15] On appeal, Kallas contends that the trial court abused its discretion in striking her expert, denying her motion for a continuance, and dismissing her claims on the first day of trial. We reject each of these ...

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