Announced December 31, 2014
City and County of Denver District Court No. 11CV1397 Honorable Robert L. McGahey, Jr., Judge
The Viorst Law Offices, P.C., Anthony J. Viorst, Denver, Colorado, for Plaintiff-Appellant
Bayer & Carey, P.C., Gary L. Palumbo, Peter M. Spiessbach, Denver, Colorado, for Defendant-Appellee
LOEB CHIEF JUDGE
¶ 1 Plaintiff, Gail Gonzales, appeals the judgment for costs in favor of defendant, Kelli Windlan, in the amount of $15, 253.77. We affirm.
I. Background and Procedural History
¶ 2 This case arises from a car accident on September 20, 2009, in which Windlan drove through an intersection without the right-of-way and struck a car driven by Gonzales. Gonzales brought suit against Windlan, asserting claims of negligence and willful and wanton conduct and seeking damages for injuries allegedly caused by the accident. Gonzales later amended her complaint to assert only the negligence claim.
¶ 3 Before trial, Windlan admitted she was negligent and that her negligence was a cause of the accident. However, she asserted that Gonzales was also negligent and was partly at fault for the accident and Gonzales's resulting injuries. Windlan also disputed that all of Gonzales's claimed injuries and medical expenses were caused by the accident.
¶ 4 At a four-day jury trial in March 2013, Gonzales presented expert testimony from two treating physicians, Dr. Janssen and Dr. Shultz. These experts testified that Gonzales suffered a spine injury in the accident that required several years of treatment for pain and ultimately required surgery. They also testified that Gonzales was permanently impaired as a result of the accident.
¶ 5 Windlan presented expert testimony from Gonzales's primary care physician, Dr. Sayed, and a retained expert, Dr. Pitzer. Both experts testified that Gonzales suffered only a temporary muscle strain in the accident that resolved within a few months. Dr. Pitzer testified that Gonzales had a preexisting degenerative cervical condition at the time of the accident in 2009, which may have been caused by several previous car accidents or a slip-and-fall accident in 2008. He opined that much of Gonzales's pain and medical treatment, including the surgery, was not caused by the accident with Windlan.
¶ 6 In closing arguments, Gonzales asked the jury to find Windlan fully at fault for the accident and requested economic damages for medical expenses totaling $212, 000, as well as substantial noneconomic damages for pain and suffering and damages for physical impairment. Windlan asked the jury to find the parties equally at fault. Windlan suggested that, if the jury reached the issue of damages, the jury should award damages only for a temporary muscle strain.
¶ 7 The jury found Windlan sixty percent at fault and Gonzales forty percent at fault for the accident. The jury awarded Gonzales $640 in economic damages and did not award any noneconomic damages or damages for physical impairment. The trial court reduced the verdict to $384 to reflect Gonzales's percentage of fault.
¶ 8 After trial, both parties moved for an award of costs. The trial court found Windlan to be the prevailing party and awarded costs to her in the amount of $15, 637.77. After subtracting the amount of Gonzales's net jury award, the trial court entered judgment in favor of Windlan in the amount of $15, 253.77. This appeal followed.
¶ 9 On appeal, Gonzales contends: (1) the trial court erred in allowing Dr. Sayed to testify as an expert about a 2009 MRI report; (2) the jury award of zero noneconomic damages was contrary to the evidence and inconsistent with the jury award of $640 for economic damages; and (3) the trial court erred in finding Windlan to be the prevailing party and awarding costs to her.
II. Dr. Sayed's Testimony
¶ 10 Gonzales contends the trial court abused its discretion in admitting Dr. Sayed's expert testimony about a radiologist's MRI report from October 2009. Specifically, Gonzales argues that (1) Dr. Sayed was not qualified to render an opinion on the MRI report and (2) Dr. Sayed's testimony was outside the scope of his occupational duties as a treating physician, and therefore improper testimony for a nonretained expert. We reject both arguments. We conclude that the trial court did not abuse its discretion in admitting the testimony and that, in any event, the admission of the testimony was harmless.
¶ 11 Dr. Sayed became Gonzales's primary care physician in 2008. Gonzales visited Dr. Sayed the day after the car accident in September 2009 and again in February 2010. Gonzales originally disclosed Dr. Sayed, along with several other treating physicians, as nonretained experts in February 2012. The disclosure indicated Dr. Sayed would testify about his treatment of Gonzales and the records in her patient file.
¶ 12 Windlan deposed Dr. Sayed in April 2012. In the deposition, Dr. Sayed discussed the 2009 MRI report, which was part of his patient file for Gonzales. A different provider who had ordered the MRI sent a copy of the radiologist's report to Dr. Sayed because he was Gonzales's primary care physician. In the deposition, Dr. Sayed opined that the MRI report showed preexisting degenerative disc disease and did not indicate an acute injury. This deposition testimony supported Windlan's theory that the accident did not cause Gonzales's spine injury.
¶ 13 In February 2013, five weeks before trial, Windlan supplemented her expert disclosures to include Dr. Sayed as a nonretained expert. The disclosure stated that Gonzales had already disclosed Dr. Sayed as a nonretained expert and that "Dr. Sayed's opinions and basis for his opinions are as stated in his deposition of April 11, 2012."
¶ 14 Gonzales filed a motion in limine to strike Dr. Sayed as Windlan's expert and to exclude the deposition testimony. Gonzales argued that Windlan's supplemental disclosure was untimely, that Dr. Sayed's deposition testimony about the 2009 MRI report was "beyond the scope and limitations of a treating physician expert, " and that Dr. Sayed was not qualified to offer an opinion on the MRI report. The parties briefed the issue and presented oral arguments to the trial court at a pretrial conference. At that conference, the parties disputed whether Dr. Sayed reviewed the MRI report in the course of treating Gonzales or reviewed it for the first time at the deposition. The court responded as follows:
I understand it's awkward when your expert doesn't give all of the opinions you would hope, and I can see how it may be awkward for your client as a patient. I'm not unsympathetic to that, but that doesn't really change the rules of what's admissible at trial. . . . [I]f [Windlan's counsel] had been asking opinions beyond the scope of those that could be given by a treating, as opposed to retained expert, if this had been a MRI that he didn't consider in the course of his treatment, I certainly [would not] have allowed him to start showing him things from other doctor's files and say, what do you think. [B]ut if this was part of his treatment and something he reviewed in the course of treatment, then, it's fair game. And if his opinions as to the causation or permanency of — of her injury when she [was] examined are not favorable to you, you're going to have to deal with it.
¶ 15 The court then issued a written order consistent with its statements at the hearing:
The court denies plaintiff[']s motion to strike and motion in limine regarding defendant[']s late expert disclosure and the proposed testimony of Dr. Khali [sic] Sayed. Dr. Sayed's expert testimony is related to his treatment of plaintiff and was disclosed during his deposition. The MRI is admissible if Dr. Sayed reviewed it for his treatment of plaintiff. It is inadmissible if Dr. Sayed reviewed it only for purposes of expert testimony. Dr. Sayed's thoughts about the permanency of her injuries is [sic] relevant and admissible. The ...