Daniels v. Rapco Foam, Inc.

• Decision Date: 28 April 1988
• Docket Number: No. 84CA1132,84CA1132
• Citation: 762 P.2d 717
• Parties: Dolores DANIELS and Charles Daniels, Plaintiffs-Appellants, v. RAPCO FOAM, INC., a corporation; and Scientific Applications Incorporated, a corporation, Defendants-Appellees. . IV
• Court: Colorado Court of Appeals

Page 717

762 P.2d 717

Dolores DANIELS and Charles Daniels, Plaintiffs-Appellants, v. RAPCO FOAM, INC., a corporation; and Scientific Applications Incorporated, a corporation Defendants-Appellees.

No. 84CA1132.

Colorado Court of Appeals Div. IV.

April 28, 1988.

Rehearing Denied May 19, 1988.

Certiorari Denied Oct. 31, 1988.

LaFond & Evangelisti, John S. Evangelisti, Denver, for plaintiffs-appellants.

Susemihl, Lohman, Kent, Carlson & McDermott, Peter M. Susemihl, Colorado Springs, for defendant-appellee Rapco Foam.

Melat & Pressman, Justin R. Melat, Colorado Springs, for defendant-appellee Scientific Applications, Inc.

CRISWELL, Judge.

Plaintiffs appeal from a judgment entered on a jury verdict in favor of the defendants, Rapco Foam, Inc. (Rapco), and Scientific Applications, Incorporated (Scientific). We reverse and remand for a new trial.

Rapco manufactured foam insulation containing formaldehyde. Scientific was its local distributor. A third defendant, Cellular Product Services, Inc. (Cellular), installed the product in plaintiffs' home. None of the defendants gave any warning to plaintiffs of the possible side effects that plaintiffs claimed the release of formaldehyde gas into the home environment could cause. This action was instituted after one of the plaintiffs allegedly developed various physical symptoms of formaldehyde poisoning.

In preparation for the pre-trial conference, the parties filed trial data certificates. Rapco's trial data certificate listed no formaldehyde expert.

By the time of the pre-trial conference on April 17, 1984, plaintiffs had settled their claims against Cellular, which took no part in that conference. At the pre-trial conference, the court authorized the remaining two defendants to designate additional witnesses within 15 days thereafter, the trial being set to commence on May 29, 1984.

On May 4, Rapco filed a formal witness and exhibit list, in which it endorsed an expert witness, who had previously been endorsed by Cellular. In addition, either on that date or at some later date, Rapco, by separate document, first advised plaintiffs that it might also call as a formaldehyde expert one Dr. Graham Allen. However, Rapco did not describe his qualifications, and the summary of his testimony consisted, in total, of the statement that he would "testify as an expert to formaldehyde poisoning and to dispute all of the allegations of the Plaintiff." No report from Dr. Allen was provided to plaintiffs and there was no opportunity provided for Dr. Allen's deposition to be taken.

Sometime prior to the trial, plaintiffs had removed the formaldehyde insulation and replaced it with fiberglass. Shortly prior to trial, after this replacement, both the plaintiffs and the defendants tested the levels of formaldehyde in the home. The results were substantially divergent, with the defense testing achieving levels approaching four times the level found by plaintiffs' expert. Plaintiffs asserted that defendants' results were inaccurate because the test equipment operator lacked experience and qualifications.

At the time of trial, the only formaldehyde expert presented by the defense was Dr. Allen. Plaintiffs objected to any testimony from Dr. Allen, both before and during trial. They claimed that Dr. Allen's late endorsement without a detailed statement of his qualifications or of his expected testimony rendered effective cross-examination impossible. The court overruled these objections and allowed Dr. Allen's testimony.

Dr. Allen testified that fiberglass of the nature used by plaintiffs to replace the foam insulation is glued together with formaldehyde-based resin that gives off "a substantial amount of formaldehyde." Thus, his testimony supported the defense theory that plaintiff merely replaced one formaldehyde product with a new "emitter" and that this could account for the increased levels found when the defense had thereafter tested plaintiffs' home.

The record is conclusive that plaintiffs had not, prior to trial, been given any notice of the claim that fiberglass was a formaldehyde emitter. Thus, they argue that, as a consequence, they were not prepared to rebut that assertion. In conjunction with their motion for new trial, however, plaintiffs produced a statement from the manufacturer of the fiberglass used by plaintiffs that the product contained no formaldehyde, but that it used a water-based, acrylic binder.

I.

Plaintiffs argue that the trial court abused its discretion in allowing Dr. Allen to testify when he was designated less than 25 days before trial and his designation was unaccompanied either by a summary of his qualifications or by a detailed statement of his opinions. We agree.

Both C.R.C.P. 16, which is applicable when the court elects to conduct a pre-trial conference, and C.R.C.P. 121, § 1-18(1)(a)(V) and (VII), which governs the information to be set forth in a trial data certificate when no pre-trial conference is held, contemplate the designation of expert witnesses, and a description of their testimony, at some reasonable time before trial. Although C.R.C.P. 16 applies here, this court has noted that the purpose of the requirement of C.R.C.P. 121 for the pre-trial designation of experts "is to provide both sides with the opportunity to prepare adequately for trial and to prevent undue surprise." Conrad v. Imatini, 724 P.2d 89 (Colo.App.1986). It therefore rests within the discretion of the trial court whether to allow the late endorsement of a witness. C.K.A. v. M.S., 695 P.2d 785 (Colo.App.1984), cert. denied, M.S. v. C.K.A., 705 P.2d 1391 (Colo.1985); Wood v. Rowland, 41 Colo.App. 498, 592 P.2d 1332 (1978).

Counsel for Rapco represented to the trial court that Dr. Allen had been first contacted by counsel for...