Garrigan v. Bowen

• Citation: 243 P.3d 231
• Decision Date: 20 December 2010
• Docket Number: No. 10SA20.,10SA20.
• Parties: Phillip GARRIGAN, Plaintiff v. Philip J. BOWEN, M.D., Defendant.
• Court: Colorado Supreme Court

243 P.3d 231

Phillip GARRIGAN, Plaintiff

v.Philip J. BOWEN, M.D., Defendant.

No. 10SA20.

Supreme Court of Colorado,

En Banc.

Nov. 22, 2010.

As Modified on Denial of Rehearing Dec. 20, 2010.^*

Killian & Davis, P.C., J. Keith Killian, Damon J. Davis, Cheryl A. Martin, Grand Junction, Colorado, Attorneys for Plaintiff.

Pryor Johnson Carney Karr Nixon, P.C., David D. Karr, Elizabeth C. Moran, Greenwood Village, Colorado, Attorneys for Defendant.

Chief Justice MULLARKEY delivered the Opinion of the Court.

I. Introduction

In the underlying medical malpractice action, the plaintiff, Phillip Garrigan, alleged that the defendant, anesthesiologist Dr. Philip J. Bowen, negligently managed his care during his lumbar spine surgery and caused Garrigan to suffer loss of vision as a result of the surgery.

In this original proceeding under C.A.R. 21, we review the trial court's order striking the trial testimony of one of Dr. Bowen's expert witnesses as a discovery violation sanction. The expert witness, Dr. Lorri A. Lee, is the lead author of a published study regarding post-operative visual loss and planned to testify about the publication at trial. Her expert disclosure statement listed the publication as was required under C.R.C.P. 26(a)(2)(B)(I) but did not expressly list the study's underlying raw data as having been considered.

The trial court concluded that under C.R.C.P. 26(a)(2)(B)(I), Dr. Lee had considered the raw study data in forming her opinions for the instant malpractice action and therefore the defendant was required to produce that data when the plaintiff requested it. Although finding that neither Dr. Bowen nor Dr. Lee had possession, custody, or control of the study's underlying data, the trial court nevertheless concluded that sanctions were warranted for the failure to produce. Accordingly, the trial court prohibited Dr. Lee from testifying at trial.

We conclude that, as a matter of law, the trial court erred in holding that the raw data underlying the study was "considered" by the expert "in forming [her] opinions" as contemplated by C.R.C.P. 26(a)(2)(B)(I), rendering the data discoverable. Because there was no discovery violation in failing to produce the data, we do not address other issues raised by the parties involving possession, custody, or control of the data and propriety of the trial court's sanction.

We accordingly make the rule absolute. We vacate the trial court's order precluding the expert's testimony based on the failure to produce the study's underlying data.

II. Facts and Procedural History

In 2004, Phillip Garrigan underwent a six-hour lumbar spine surgery for which Dr. Bowen was the anesthesiologist. During the surgery, Garrigan was placed in a prone, i.e., face down, position. Following surgery, Garrigan discovered that he could not see.¹ He was diagnosed with having suffered postoperative visual loss ("POVL"), and more specifically ischemic optic neuropathy ("ION").²

Garrigan subsequently brought this suit against Dr. Bowen and St. Mary's Hospital and Medical Center, Inc., but the claims against the hospital were dismissed. In his complaint, Garrigan alleged that Dr. Bowen was negligent in his care and treatment, including failing to properly place and maintain Garrigan in the proper position and failing to adequately monitor and administer fluid input and output. Accordingly, Garrigan alleged that Dr. Bowen's negligence caused him to suffer permanent physical impairment and disfigurement.

Dr. Bowen retained Dr. Lee to testify in his defense. She was the lead author of a study published regarding POVL: Lorri A. Lee, et al., The American Society of Anesthesiologists Postoperative Visual Loss Registry, Analysis of 93 Spine Surgery Cases with Postoperative Visual Loss, 105 Anesthesiology 652 (2006) (the "POVL Study"). Submitted for publication in January 2006, the POVL Study was published in October 2006, the same month that Garrigan filed this action.

The POVL Study examined ninety-three cases of spinal surgery-related visual loss that were submitted to a registry established by the American Society of Anesthesiologists and maintained at the University of Washington. Id. at 652-53. The published article explained how cases were selected from the registry for the study, and analyzed their characteristics, including patient demographics, coexisting diseases, surgical characteristics, anesthetic management, and ophthalmologic findings. Id. at 653-56. Although the authors cautioned that there were limitations regarding their study methodology, they concluded that POVL was associated with lengthy spine surgery in the prone position. Id. at 656, 658.

Dr. Lee's expert disclosure stated that she would testify, based on the POVL Study, that the cause of ION remains unknown although two factors, length of surgery and use of the prone position, were shown to be associated with the condition. Dr. Lee would testify that although these two factors existed in the plaintiff's case, neither factor has been shown to cause the condition; most patients with similar surgical parameters do not experience the condition; and neither factor was within Dr. Bowen's control.

In a subsequent, related paragraph, the expert disclosure stated, "Dr. Lee will testify that the data in the study supports the conclusion that [posterior ION] is most likely the result of something related to the individual patient and that individual's anatomy or physiology in the prone position." After further explaining this conclusion, the disclosure stated that Dr. Lee would testify that the plaintiff's condition was likely the result of an anatomic or physiologic predisposition to developing the condition, and that it could not have been anticipated or prevented.

Dr. Bowen retained two additional POVL Study co-authors to testify in his defense as well. In reviewing their roles in the POVL Study, the trial court later found that neither co-author had played a central role in analyzing the raw data.

Because of the reliance placed on the POVL Study by Dr. Bowen's experts, the plaintiff submitted to Dr. Bowen a C.R.C.P. 34 request for production of information relating to the experts' POVL Study, including, among other things, all medical records submitted to the registry, albeit redacted; all working notes, analyses, and correspondence during the study; all meeting minutes relating to the registry; and even manuals for the software programs used in the research. In sum, the plaintiff asked for all documents pertaining to the registry and the POVL Study. In addition to objecting to the broadness, relevance, and relative value of the documents sought, Dr. Bowen's responses explained that the underlying research documents were not in his or his experts' possession or control.

The plaintiff subsequently moved to strike the testimony of all three experts on reliability grounds under C.R.E. 702 and People v. Shreck, 22 P.3d 68 (Colo.2001), or alternatively to compel production of the POVL Study's source data and methodology. The plaintiff argued that the experts based their opinions on the POVL Study and argued that, without the raw data, Dr. Bowen could not prove reliability and therefore admissibility. Rejecting the assertion that the experts' proposed testimony was based solely on the POVL Study, the trial court found the experts to be qualified to testify. With respect to the POVL Study itself, the trial court reasoned:

Nor has Plaintiff shown that this study is so seriously flawed that it is not "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." C.R.E. 703. Plaintiff's objections that it was created solely for litigation purposes, that it has been rejected by some peer-reviewed journals and that one expert disagrees with itsconclusions go to its weight, not its admissibility.

The trial court thus rejected Garrigan's Shreck challenge as to the experts' qualifications and the POVL Study's admissibility.

Despite having resolved the plaintiff's motion, the trial court nevertheless concluded that that the raw data was discoverable under C.R.C.P. 26(a)(2)(B)(I)'s disclosure requirements because the experts "considered"-as the term is used in C.R.C.P. 26(a)(2)(B)(I)-the study's source data and methodology in forming their opinions in this case. The court also reasoned that even if disclosure was not required under C.R.C.P. 26(a)(2)(B)(I), the information was nonetheless relevant and discoverable under the general definition of discoverable information under C.R.C.P. 26(b)(1). Based on its findings, the court permitted the experts to testify "so long as Defendant provides Plaintiff the bases for their opinions, including the source data and methodology of the study in question."

Dr. Bowen moved for reconsideration of the order, explaining that (1) the information was not in his or his experts' possession, custody, or control, but rather in the legal control of the University of Washington, as evidenced by an affidavit from a Washington State Assistant Attorney General; (2) the experts did not "consider" this information within the meaning of C.R.C.P. 26(a)(2)(B)(I); and (3) much of the information the plaintiff sought was contained within the article itself. The motion included an affidavit from Dr. Lee stating that she had not re-reviewed the raw data or documentation underlying the POVL Study in forming her opinions in the case. The court denied the motion and declined to decide whether Dr. Bowen had complied with producing those documents that were in his possession, custody, or control.

The plaintiff then sought discovery violation sanctions against Dr. Bowen on the ground that he had failed to comply with the court's order, alternatively seeking default judgment or exclusion of all three experts.

Ruling on the motion for sanctions, the trial court first concluded that the documents requested were in fact outside the possession, custody, or control of Dr. Bowen and his...