Shawn Sovde, a minor, by and through his mother and next friend, Katrina Kinney, Plaintiff-Appellant,
Kevin Scott, D.O.; and Andrew Sarka, M.D., Defendants-Appellees.
County District Court No. 13CV30674 Honorable Kurt A. Horton,
T. Brake, P.C., Andrew T. Brake, Englewood, Colorado, for
Hershey Decker, PLLC, C. Todd Drake, Lone Tree, Colorado, for
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call the withdrawn witness to testify?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
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.
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
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
13 Second, he contends that the trial court erred when it
excluded certain testimony because it was hearsay.
Withdrawn Expert Witnesses
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
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 ...