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In re Catholic Health Initiatives Colorado

Supreme Court of Colorado, En Banc

October 2, 2017

In Re: Catholic Health Initiatives Colorado d/b/a Centura Health - St. Anthony North Hospital, Plaintiff
v.
Earl Swensson Associates, Inc. Defendant

         Original Proceeding Pursuant to C.A.R. 21 Broomfield County District Court Case No. 16CV30055 Honorable Edward Charles Moss, Judge

          Attorneys for Plaintiff: Marie E. Williams Law LLC Marie E. Williams Lakewood, Colorado Kutak Rock LLP Tiffanie D. Stasiak Michael E. Bonifazi Denver, Colorado

          Attorneys for Defendant: Cardi, Schulte & Ford, LLC Timothy M. Schulte Daniel V. Woodward Denver, Colorado

          OPINION

          BOATRIGHT JUSTICE

         ¶1 In 2015, this court amended Colorado Rule of Civil Procedure 26(a)(2)(B) to provide that expert testimony "shall be limited to matters disclosed in detail in the [expert] report." In this case, the trial court concluded that this amendment mandates the exclusion of expert testimony as a sanction when the underlying report fails to meet the requirements of Rule 26. We conclude that the amendment created no such rule of automatic exclusion. Instead, we hold that the harm and proportionality analysis under Colorado Rule of Civil Procedure 37(c) remains the proper framework for determining sanctions for discovery violations. Because the trial court here did not apply Rule 37(c), we make our rule to show cause absolute and remand for further proceedings.

         I. Facts and Procedural History

         ¶2 In March 2016, Catholic Health filed suit against architectural firm Earl Swensson Associates ("ESA") after ESA designed Catholic Health's new hospital, Saint Anthony North Health Campus ("Saint Anthony"). Catholic Health alleged that ESA breached its contract and was professionally negligent by failing to design Saint Anthony such that it could have a separately licensed and certified Ambulatory Surgery Center ("ASC").

         ¶3 In December 2016, Catholic Health filed its first expert disclosures, endorsing Bruce LePage and two others. Catholic Health described LePage as an expert with extensive experience in all aspects of preconstruction services such as cost modeling, systems studies, constructability, cost studies, subcontractor solicitation, detailed planning, client relations, and communications in hospital and other large construction projects. Catholic Health endorsed LePage to testify about the cost of adding an ASC to Saint Anthony. LePage's expert report estimated that it would cost $11 million to "repair" the hospital. ESA then filed its own expert report, which opined that LePage's estimates were insufficiently detailed and, as such, unreasonable and unverifiable.

         ¶4 On March 6, 2017-the deadline to file pre-trial motions and thirty-five days before the trial was to begin-ESA filed a motion to strike Catholic Health's designation of LePage as an expert, arguing that his report failed to meet the requirements of Rule 26(a)(2)(B)(I). Specifically, ESA argued that LePage's report "fail[ed] to identify the information, facts, or assumptions on which he based his opinions, or the documents or other information that he considered." At a hearing on the motion, ESA argued that the lack of detail in LePage's report prevented ESA from being able to effectively cross-examine him. ESA further argued that striking LePage as an expert was the proper remedy because Rule 26(a)(2)(B)(I) limits expert testimony to opinions that comply with the Rule, and LePage offered no opinions in compliance.

         ¶5 In response, Catholic Health argued that the basis for LePage's opinion was his experience, which did not need to be included in the expert report or supplemented by a specific breakdown of cost estimates. Catholic Health also argued that, if LePage's report was insufficient, Rule 37(c) governed sanctions for these types of discovery violations. Specifically, Catholic Health contended that striking LePage, its only damages expert, would essentially end the case, and that such a drastic sanction was inappropriate under Rule 37(c)(1), as Catholic Health had not blatantly disregarded the rules, engaged in subterfuge, or made an untimely disclosure.

         ¶6 The trial court agreed with ESA and found that LePage's report included "bare numbers with little explanation" and lacked sufficient detail as to the basis for his opinions, meaning it did not comply with the requirements of Rule 26(a)(2)(B)(I). When determining the remedy, the trial court noted that it approached the issue with "trepidation" because Rule 26 had been recently amended. The court explained that the amendment to Rule 26 added a provision saying that expert testimony shall be limited to what is disclosed in detail in the expert's report. As such, the court decided to exclude LePage's expert report from evidence and to preclude LePage from testifying. The trial court explained that it believed Rule 26(a)(2)(B)(I) to be controlling on the question and that it did not consider Rule 37(c)(1) in its analysis.

         ¶7 Catholic Health then requested a continuance to amend and supplement LePage's expert report. After the trial court denied that request, Catholic Health filed a petition under C.A.R. 21, and we issued a rule to show cause. We chose to exercise our original jurisdiction under C.A.R. 21 because the improper exclusion of an expert witness would significantly prejudice Catholic Health by preventing any evidence of damages.

         II. Standard of Review

         ¶8 We review a trial court's imposition of sanctions for discovery violations for an abuse of discretion. St. Jude's Co. v. Roaring Fork Club, L.L.C., 2015 CO 51, ¶ 39, 351 P.3d 442, 454. A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or based on a misapprehension of the law. See id.; Battle North, LLC v. Sensible Housing Co., 2015 COA 83, ...


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