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Sovde v. Scott

Court of Appeals of Colorado, Second Division

June 29, 2017

Shawn Sovde, a minor, by and through his mother and next friend, Katrina Kinney, Plaintiff-Appellant,
v.
Kevin Scott, D.O.; and Andrew Sarka, M.D., Defendants-Appellees.

         Arapahoe County District Court No. 13CV30674 Honorable Kurt A. Horton, Judge

          Andrew T. Brake, P.C., Andrew T. Brake, Englewood, Colorado, for Plaintiff-Appellant

          Hershey Decker, PLLC, C. Todd Drake, Lone Tree, Colorado, for Defendants-Appellees

          OPINION

          BERNARD JUDGE

         ¶ 1 Colorado's Rules of Civil Procedure require parties to lawsuits to endorse expert witnesses and to inform each other of the substance of the expert witnesses' testimony. But what happens if one party withdraws an endorsed "may call" expert witness shortly before trial or during trial, and the opposing party then announces that it wants to call the withdrawn witness to testify? We conclude that, to answer this question, a trial court should, in the exercise of its discretion, balance factors such as (1) whether the expert's testimony would be cumulative; (2) whether excluding the expert's testimony would result in unfair prejudice to the nonendorsing party; and (3) whether the nonendorsing party did not endorse its own expert on the subject, because the absence of such an endorsement would suggest an attempt to "piggyback" on the endorsing party's preparation.

         ¶ 2 This question arose in the context of a medical malpractice case. Plaintiff, a child, Shawn Sovde, by and through his mother, Katrina Kinney, sued defendants, Dr. Andrew Sarka and Dr. Kevin Scott. The jury found in defendants' favor. Plaintiff appeals. We affirm.

         I. Background

         ¶ 3 The child was born on June 25, 2006. Shortly after his birth, his mother noticed a "scrape" or a "lesion" on "the top of his head" and marks by his ears. She noticed "more lesions" on him the next day.

         ¶ 4 Dr. Sarka examined the child on the day after he was born, and Dr. Scott examined him the day after that. Dr. Scott told the mother that the lesions were "baby acne" and "cradle cap." He repeated these observations when he examined the child three days later. Neither doctor took any action or ordered additional testing concerning the lesions during the week after the child was born.

         ¶ 5 The child's behavior changed on July 4, or nine days after his birth. The mother later testified that he "was not eating as well" as he had earlier, and that he was "[m]uch sleepier." The lesions on his head were "getting bigger, " and they were spreading.

         ¶ 6 The next day, based on a pediatrician's advice, the mother and the child's father, Raymond Sovde, rushed the child to the hospital. Once there, doctors determined that the child had been infected with the herpes simplex virus, which had manifested itself in two ways: skin, eyes, and mucous membrane (SEM) disease, and central nervous system (CNS) disease.

         ¶ 7 The doctors at the hospital immediately began to treat the child with antibiotics, which they repeated over time. But the CNS disease had done serious damage, eventually inducing seizures and causing a sensory processing disorder. And some of the medicine that the doctors prescribed for the child caused other medical problems, such as pancreatitis.

         ¶ 8 The child's lawsuit claimed that

• defendants had negligently misdiagnosed the child's lesions as something benign instead of manifestations of the herpes simplex virus, even though, plaintiff alleged, the child had herpes-caused lesions on his head on the day that he was born; and
• if defendants had timely and properly diagnosed the lesions as products of less harmful SEM disease, they could have treated the child with antibiotics, which could have prevented the onset of the more harmful CNS disease.

         ¶ 9 Defendants countered that

• the child had developed the two forms of herpes-related disease simultaneously on July 4 or 5, and that the lesions that the mother had seen on him on the day of his birth had not been herpes-related; so
• they were not negligent because they could not have diagnosed any herpes-related disease before July 4 or 5.

         ¶ 10 The case proceeded to trial. The jury found that defendants had not been negligent.

         ¶ 11 Plaintiff raises two contentions on appeal.

         ¶ 12 First, he asserts that the trial court erred when it denied related requests concerning two of defendants' previously endorsed expert witnesses whom defendants had withdrawn. Plaintiff wanted to call them to testify, or to use their depositions to cross-examine defendants' other experts.

         ¶ 13 Second, he contends that the trial court erred when it excluded certain testimony because it was hearsay.

         II. Withdrawn Expert Witnesses

         A. Additional Background

         ¶ 14 Defendants endorsed several expert witnesses more than three months before trial. One of them, Dr. Thomas Reiley, was a neurologist. Another, Dr. Richard Molteni, was a pediatrician and a neonatologist. The endorsement described them as "Specially Retained Expert Witnesses Who May be Called to Testify During the Hearing in this Matter."

         ¶ 15 Plaintiff did not endorse Dr. Reiley or Dr. Molteni. But he reserved the right "to call any witnesses listed by . . . [d]efendants and any rebuttal or impeachment witnesses as may be deemed necessary, at the conclusion of [d]efendants' case."

         ¶ 16 About six weeks before trial, defendants designated the two expert witnesses as "may call" witnesses on their witness list. (C.R.C.P. 16(f)(3)(VI)(A) distinguishes between "may call" and "will call" witnesses. "If a party lists a witness as a 'will call' witness, that party 'must ensure' that the witness will be available to testify at trial if called by any party without the necessity of another party serving a subpoena on the witness." 6 David R. DeMuro, Colorado Practice Series: Civil Trial Practice § 9.4, Westlaw (database updated Aug. 2016). As we explain in more detail below, there is no such requirement for "may call" witnesses.)

         ¶ 17 Eleven days before trial, defendants filed a motion stating that they would not call Dr. Reiley at trial. They asked the trial court to exclude all of his "[d]eposition testimony, handwritten notes, and literature" from the trial.

         ¶ 18 The next day, plaintiff updated his witness list to include Dr. Reiley, and he served him with a subpoena.

         ¶ 19 After a hearing, the trial court ruled that plaintiff could not call Dr. Reiley as his witness and that plaintiff could not refer to his deposition or expert report. The court observed that defendants had listed him as a "may call" witness and that they were "entitled to withdraw [him] as an expert witness. They have done so somewhat belatedly but have done so."

         ¶ 20 The court did not anticipate that plaintiff would be prejudiced if he could not call Dr. Reiley to the stand. "Among other things, [he has his] own expert in pediatric neurology endorsed to testify ...


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