Erskine v. Beim, 07CA0429.

• Citation: 197 P.3d 225
• Decision Date: 18 September 2008
• Docket Number: No. 07CA0429.,07CA0429.
• Parties: Lance ERSKINE and Theresa Erskine, Plaintiffs-Appellants and Cross-Appellees, v. Gloria BEIM, M.D., and Alpine Orthopaedics & Sports Medicine, P.C., Defendants-Appellees and Cross-Appellants.
• Court: Court of Appeals of Colorado

197 P.3d 225

Lance ERSKINE and Theresa Erskine, Plaintiffs-Appellants and Cross-Appellees, v. Gloria BEIM, M.D., and Alpine Orthopaedics & Sports Medicine, P.C., Defendants-Appellees and Cross-Appellants.

No. 07CA0429.

Colorado Court of Appeals, Div. VI.

September 18, 2008.

As Modified on Rehearing October 16, 2008.

The Law Firm of Saul R. Sarney, P.C., Saul R. Sarney, Denver, Colorado; Leventhal, Brown & Puga, P.C., Jim Leventhal, Benjamin Sachs, Denver, Colorado, for Plaintiffs-Appellants and Cross-Appellees.

Cooper & Clough, P.C., Paul D. Cooper, Deanne C. Potestio, Denver, Colorado; Jaudon & Avery, L.L.P., David H. Yun, Denver, Colorado, for Defendants-Appellees and Cross-Appellants.

Opinion by Judge WEBB.

In this medical malpractice case, plaintiffs, Lance and Theresa Erskine, appeal the judgment entered on a jury verdict in favor of defendants, Gloria Beim, M.D., and Alpine Orthopaedics & Sports Medicine, P.C., on the basis that the trial court improperly struck one of their expert witnesses for failure fully to disclose testimonial history. Defendants conditionally cross-appeal, in the event we reverse, on the basis that the trial court improperly struck three of their expert witnesses, two for failure fully to disclose testimonial history and one for other reasons. We reverse and remand for a new trial at which all experts stricken for failure to disclose testimonial history shall be allowed to testify, but subject to other sanctions that the court may impose, if any.

I. Background

During trial, plaintiffs moved to preclude testimony from two defense experts for incomplete disclosure of testimonial history, relying on several court of appeals decisions, including Trattler v. Citron, 2006 WL 2506741 (Colo.App. No. 04CA2113, Aug. 31, 2006)(not published pursuant to C.A.R. 35(f))(Trattler I). Defendants then moved to preclude testimony of one of plaintiffs' experts for the same reason. The trial court struck all three of these experts, citing Svendsen v. Robinson, 94 P.3d 1204 (Colo. App.2004), overruled by Trattler v. Citron, 182 P.3d 674 (Colo.2008)(Trattler II).

During the pendency of this appeal, the supreme court announced Trattler II, which held that "preclusion of expert witnesses for failure to provide testimonial history is a disproportionate sanction." 182 P.3d at 683. The parties were ordered to file supplemental briefs addressing Trattler II. Plaintiffs argue that Trattler II applies retroactively, is directly on point, and requires reversal. Defendants argue that Trattler II should not apply retroactively, that the doctrine of invited error prevents plaintiffs from relying on Trattler II, and that even under Trattler II the trial court acted within its discretion in striking plaintiffs' expert.

We agree with plaintiffs that Trattler II should be applied retroactively, that they are not precluded from relying on it by their position below, and that it requires the judgment be reversed and the case remanded for a new trial at which all experts stricken for failure fully to disclose their testimonial histories shall be allowed to testify.

II. Retroactivity

We first address and reject defendants' contention that we should depart from the general rule that judicial decisions are applied retroactively. Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 113 (Colo.1992).

To determine whether Trattler II should be given only prospective effect, we apply a three-part test: first, the decision must establish a new principle of law; second, the merits of each case must be weighed by looking to whether retrospective application will further or retard the purpose and effect of the rule in question; and third, the inequity imposed by retroactive application must be weighed to avoid injustice or hardship. See Marinez v. Indus. Comm'n, 746 P.2d 552, 556 (Colo.1987) (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971)). We need address the second and third factors only if we can say with fair assurance that Trattler II established a new rule of law. See Martin Marietta Corp., 823 P.2d at 113.

A. New Rule of Law

To establish a new rule of law, a judicial decision must either resolve an issue of first impression not clearly foreshadowed by prior precedent or overrule clear past precedent on which the litigants may have relied. Id.

Here, the following statements in Trattler II suggest that it did not establish a new rule of law:

• The Trattler II majority stated that the trial court had "misread C.R.C.P. 37(c)(1)." 182 P.3d at 683. It did not find that C.R.C.P. 37(c)(1) was ambiguous. Rather, it interpreted Rule 37 by looking to the plain language. See Curlin v. Regional Transp. Dist., 983 P.2d 178, 180 (Colo.App.1999) ("the supreme court's decision ... merely determined" what "the plain language of [the statute]" required); Jaimes v. State Farm Mut. Auto. Ins. Co., 53 P.3d 743, 747 (Colo. App.2002)("In a case of first impression before it, the supreme court in DeHerrera [v. Sentry Ins. Co., 30 P.3d 167 (Colo. 2001)] interpreted § 10-4-609(1), an unambiguous statute ... The court did not overrule any of its prior precedent, nor did it resolve an issue of first impression not clearly foreshadowed by prior precedent. ...").

• The Trattler II majority did not overrule its prior cases interpreting Rule 37(c)(1), Cook v. Fernandez-Rocha, 168 P.3d 505 (Colo.2007), and Todd v. Bear Valley Vill. Apartments, 980 P.2d 973 (Colo. 1999), but rather distinguished them because "the evidence that was precluded was the evidence that was not disclosed." 182 P.3d at 681. See Curlin, 983 P.2d at 180 ("the court noted that its decision was consistent with the result reached in two prior decisions by different divisions of this court.").

• The Trattler II majority also stated, "We reaffirm the principle that sanctions should be directly commensurate with the prejudice caused to the opposing party." 182 P.3d at 682 (emphasis added). See Rocky Mountain Power Co. v. Colorado River Water Conservation District, 646 P.2d 383, 389 (Colo.1982) (a new rule of law is not created if a decision reaffirms the holdings of prior decisions).

In contrast to these statements, when discussing the court of appeals decisions in Woznicki v. Musick, 119 P.3d 567, 575 (Colo. App.2005); Svendsen, 94 P.3d at 1208; and Carlson v. Ferris, 58 P.3d 1055, 1059 (Colo. App.2002), aff'd on other grounds, 85 P.3d 504 (Colo.2003), the Trattler II majority observed, "It is unclear from the sparse detail concerning the nature and extent of undisclosed information ... whether these decisions can be reconciled with our opinion today. To the extent, if any, that they are inconsistent with our opinion, they are overruled." Trattler II, 182 P.3d at 681 n. 2 (emphasis added).

These court of appeals decisions were final. Compare Williams v. Trailmobile, Inc., 745 P.2d 267, 269 (Colo.App.1987)(new rule created when supreme court overruled two court of appeals decisions in which "the applicable rule had been as stated."), with Marinez, 746 P.2d at 558 n. 6 ("The court of appeals judgments that were reversed ... were not final in that they were under review by certiorari. Therefore, the reversal of those judgments did not constitute the overruling of prior precedent.").

Thus, because the first factor is not free of doubt, we consider the second and third factors. See Martin Marietta Corp. v. Lorenz, 823 P.2d at 113 ("we cannot conclude with fair assurance that the first element ... for retroactive application has been satisfied, and for that reason we continue with the ... analysis.").

B. Further or Retard Operation

We conclude that retroactive application of Trattler II furthers its operation.

The Trattler II majority emphasized that "it is unreasonable to deny a party an opportunity to present relevant evidence based on a draconian application of pretrial rules." 182 P.3d at 682. Rather, "the trial court must strive to afford all parties their day in court and an opportunity to present all relevant evidence at trial." Id.

These statements show that retroactive application of Trattler II would further its purpose by allowing parties who have been precluded from presenting relevant expert testimony, based on incomplete disclosure of the expert's testimonial history, the opportunity to present such testimony at retrial. Cf. People in Interest of C.A.K., 652 P.2d 603, 607 (Colo.1982) (noting that the second factor "argues most strongly for retroactivity" because "the standard of proof directly influences the basic reliability of the factfinding decision," although ultimately concluding prospective application required based on the third factor).

C. Injustice or Hardship

We also conclude that retroactive application of Trattler II will not result in injustice or hardship.

In People in Interest of C.A.K., 652 P.2d at 608, the supreme court explained:

[T]here are two justifications for a denial of retroactive effect. The first is the protection of persons who have relied on the earlier state of the law; the second is the protection of stability in areas where society attaches particular importance to stability.

...

The reliance factor is more persuasive when the change in the law at issue concerns pre-litigation conduct that becomes the subject of later litigation, because most acts, once done, cannot be undone ... Here, the conduct that is governed by the change in the law can be undone. The case could be remanded for a new trial, and the parties would then begin again at square one.

See also Cash v. Califano, 621 F.2d 626, 629-30 (4th Cir.1980) (nonretroactive cases have involved "unexpected interpretations of procedural law, the retroactive application of which would have clearly prejudiced an unwary litigant by erecting, directly or indirectly, an absolute bar to his claim" or "substantive interpretations of law which would have altered significantly pre-existing patterns of behavior, and concomitant vested...