Freedman v. Kaiser Foundation Health Plan of Colorado

• Decision Date: 02 July 1992
• Docket Number: No. 90CA1502,90CA1502
• Citation: 849 P.2d 811
• Parties: Isadore FREEDMAN and Helene Freedman, Plaintiffs-Appellants, v. KAISER FOUNDATION HEALTH PLAN OF COLORADO, a nonprofit corporation, Colorado Permanente Medical Group, P.C., a Colorado professional corporation, W.G. Wright, M.D. and Magdelyn Sabichi, M.D., Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 811

849 P.2d 811

Isadore FREEDMAN and Helene Freedman, Plaintiffs-Appellants, v. KAISER FOUNDATION HEALTH PLAN OF COLORADO, a nonprofit corporation, Colorado Permanente Medical Group, P.C., a Colorado professional corporation, W.G. Wright, M.D. and Magdelyn Sabichi, M.D., Defendants-Appellees.

No. 90CA1502.

Colorado Court of Appeals Div. III.

July 2, 1992.

As Modified on Denial of Rehearing

Oct. 8, 1992.

Certiorari Denied March 29, 1993.

Hochstadt, Straw & Strauss, P.C., Richard S. Strauss, Jordan Hochstadt, Denver, for plaintiffs-appellants.

Tilly & Graves, P.C., Greg L. Perczak, Christopher P. Seerveld, Amy L. Miletich, Denver, for defendants-appellees.

Opinion by Judge CRISWELL.

Plaintiffs, Isadore and Helene Freedman, appeal from a judgment entered on a jury verdict in favor of defendants, Kaiser Foundation Health Plan of Colorado (Kaiser), Colorado Permanente Medical Group, P.C. (Medical Group), W.G. Wright, and Magdelyn Sabichi, denying plaintiffs' claims of medical malpractice and from a pre-verdict dismissal of their breach of contract claims against Kaiser. We affirm.

Plaintiff Isadore Freedman developed a debilitating condition in his spine known as vertebral osteomyelitis. Plaintiffs claim that the individual defendants, who were members of Medical Group, a professional medical corporation, failed timely to diagnose or to institute treatment for the condition, the result of which failure was to render Isadore a permanent paraplegic. They also assert that Kaiser breached the contract between it and plaintiffs by failing to provide quality medical services to them.

I.

Plaintiffs' first contention is that the trial judge should have disqualified himself because he had been insured with Kaiser some time in the past. We find no support for this contention.

A motion for disqualification must state facts which would allow a reasonable inference that the judge has a bias or prejudice that will interfere with his or her dealings with a party or that will give the impression of such bias or prejudice. This motion must contain facts and not merely conclusionary statements, conjecture, or innuendo. Zoline v. Telluride Lodge Ass'n, 732 P.2d 635 (Colo.1987).

Here, plaintiffs did not seek to have the trial judge disqualified until after the trial was completed. Then, after obtaining an unfavorable jury verdict, plaintiffs filed a motion for a new trial alleging that the trial judge's failure to disclose that he had, at some unspecified time in the past, been insured with Kaiser deprived them of a fair trial. Because that motion was not received by the court on a timely basis, the trial judge did not act upon it.

However, plaintiffs presented no specific allegations respecting the judge's past relationship with Kaiser, and they have not explained how a past contract with Kaiser that is no longer in existence could constitute the basis for a present bias or prejudice on his part or provide an impression of either. We conclude, therefore, that plaintiffs' showing was insufficient, as a matter of law, to require recusal.

II.

Plaintiffs also contend that they were precluded from receiving a fair trial by virtue of the jury selection process. We find no merit to this contention.

C.R.C.P. 47(e)(7) requires that a party's challenge for cause be sustained if a juror's state of mind evidences "enmity against or bias to either party." However, this issue is a factual determination and is entrusted to the sound discretion of the trial court. Thus, the decision of a trial court to deny a challenge for cause will not be disturbed on review, absent a manifest abuse of that discretion. Blades v. DaFoe, 704 P.2d 317 (Colo.1985).

Plaintiffs argue that their challenge for cause should have been granted when one juror indicated that, because he and his family used Kaiser, it might be difficult for him to return a verdict against it. However, upon examination by the trial court, the juror said that he could set aside his feelings and render a fair and impartial verdict. Further, after the trial court denied plaintiffs' challenge for cause, the juror, in response to a question by plaintiffs, indicated that, if the evidence showed that the doctors had done something wrong, he could return a verdict for plaintiffs. The trial court was entitled to accept these statements of the juror, which were made under oath. See People v. Russo, 713 P.2d 356 (Colo.1986).

Plaintiffs also contend that the trial court, on its own motion, should have declared a mistrial once it learned that one juror had travel plans that could have potentially interfered with his duties as a juror and another juror had a sister-in-law suffering from terminal cancer. However, plaintiffs at no time challenged either of these jurors. Therefore, any error was waived. See Cruz v. Union Pacific R.R. Co., 707 P.2d 360 (Colo.App.1985).

III.

Plaintiffs argue that the trial court erred in limiting the testimony of several expert witnesses. We disagree.

A.

Plaintiffs contend the trial court improperly limited the testimony of an expert witness listed by defendants, but called by plaintiffs. We find no merit in this contention.

This expert, a physician specializing in the area of infectious diseases, was initially endorsed by defendants in their pre-trial disclosure statement. In that statement, defendants noted that this expert would be called to express opinions regarding the issue of the medical cause of Isadore's condition; nothing in the description of the testimony suggested that this expert would express any opinion with respect to the standard of care applicable to the individual physicians.

Plaintiffs' disclosure statement generally designated any witness endorsed by defendants. However, that statement did not amend or modify the description of the testimony that such witnesses might be expected to give, and plaintiffs did not seek to amend or to supplement that statement.

During the trial, plaintiffs called this expert witness in their case-in-chief and sought to elicit testimony as to the propriety of the treatment provided by the individual defendants and other members of the Medical Group. However, the trial court concluded that, because plaintiffs had given no indication that the subject matter of the expert's opinions would be expanded beyond that designated in defendants' disclosure certificate, it would be prejudicial to defendants to allow such testimony. Accordingly, it refused to allow the expert to testify upon this subject.

C.R.C.P. 16(a)(IX) requires any party intending to use an expert witness to file a disclosure statement setting forth the substance of the opinions such witness is expected to express within 180 days after the case is at issue, but no later than 90 days before trial, whichever is earlier. A party may supplement this disclosure statement with respect to expert witnesses no later than 80 days prior to the trial. This supplement must include the subject matter of the expert's testimony and the reason the expert was not disclosed earlier. C.R.C.P. 16(b)(4). After receiving this supplemental statement, an opposing party who first learns of an expert witness as a result of the supplement may, within 15 days after its receipt, designate a rebuttal witness upon the subject. C.R.C.P. 16(g).

Thus, C.R.C.P. 16 requires designation of all expert witnesses and a description of their testimony at some reasonable time before trial. This is to prevent undue surprise and to give each party the opportunity to prepare adequately for trial. Daniels v. Rapco Foam, Inc., 762 P.2d 717 (Colo.App.1988).

The opportunity for adequate preparation includes being afforded the opportunity to obtain an expert rebuttal witness upon being informed that the opposing party intends to elicit unfavorable testimony from a designated expert witness. C.R.C.P. 16(g).

We conclude that, if, as here, one party elicits opinions from another party's expert witness which are beyond the scope of the testimony described in the disclosure statement and are not of the kind which would impeach such testimony, the witness will be considered for this purpose as the opposing party's expert witness. As such, the party eliciting opinions beyond the scope of the initial disclosure statement must comply with the mandate of C.R.C.P. 16 to provide the other party with a supplemental description under C.R.C.P. 16(b)(4) of the testimony to be offered.

This conclusion is required by the underlying purpose of C.R.C.P. 16 to protect each party from undue surprise and to give to each the opportunity to prepare adequately for trial. For this purpose, it is irrelevant whether the expert has been previously undisclosed or is a witness who, while previously endorsed, is offered to express an opinion upon a subject matter not previously described.

If a party fails to comply with the requirements of C.R.C.P. 16(b)(4), the trial court may impose sanctions. These may include an order limiting the scope of the expert's testimony. See Locke v. Vanderark, 843 P.2d. 27 (Colo.App.1992). Whether such sanction should be imposed rests within the sound discretion of the trial court, and absent a clear abuse of that discretion, its determination will not be disturbed. Locke v. Vanderark, supra; United Bank v. One Center Joint Venture, 773 P.2d 637 (Colo.App.1989).

Plaintiffs contend, nevertheless, that, despite their failure to supplement their disclosure statement, defendants were put on notice at the witness' deposition that plaintiffs intended upon eliciting a standard of care opinion at trial. Hence, plaintiffs argue, the trial court abused its discretion by refusing to allow the expert to express opinions other than those described in the disclosure statement. We disagree.

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