J.P. v. District Court In and For 2nd Judicial Dist. of Denver

Citation873 P.2d 745
Decision Date02 May 1994
Docket NumberNo. 94SA54,94SA54
PartiesJ.P., Petitioner, v. DISTRICT COURT In and For the 2ND JUDICIAL DISTRICT OF DENVER, and the Honorable Connie L. Peterson, One of the Judges Thereof, Respondents.
CourtSupreme Court of Colorado

Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Rachel A. Bellis, Leventhal & Bogue, P.C., James Leventhal, Denver, for petitioner.

Pryor, Carney & Johnson, P.C., Elizabeth C. Moran, Bruce A. Montoya, Englewood, White & Steele, P.C., R. Eric Peterson, George Codding, III, Denver, Taylor, McQuiston & McCune, John E. Taylor, Aurora, for respondents.

Justice ERICKSON delivered the Opinion of the Court.

The petitioner brought this original proceeding pursuant to C.A.R. 21 seeking relief in the nature of mandamus and prohibition. 1 J.P. contends that the respondent district court abused its discretion when it refused to allow her to depose and endorse witnesses necessary to prove the petitioner's case based in part on the fact that the trial had been twice continued. We issued a rule to show cause and now make the rule absolute.


In 1985, the petitioner, J.P., then a seventy-two-year-old woman, went to Saint Joseph's Hospital (St. Joseph's) for hip replacement surgery. The surgery was performed by Dr. Gerhard Anderson (Dr. Anderson), an orthopedic surgeon. During the surgery, Dr. Anderson replaced J.P.'s hip with an allogenous bone graft. The allograft tissue was ordered by St. Joseph's from Mile High Transplant Bank (MHTB). MHTB obtained the tissue from LifeNet Transplantation Services, Inc. (LifeNet). LifeNet procured, harvested, and distributed the tissue from the donor, a homicide victim infected with human immunodeficiency virus (HIV).

After the surgery, J.P. tested HIV-positive. In June 1992, J.P. filed a professional and medical negligence action claiming that Dr. Anderson, St. Joseph's, MHTB, and LifeNet were negligent and caused her to become infected with HIV.

On October 7, 1992, the parties were urged to meet informally to identify witnesses, establish a discovery plan, and reach agreement regarding which facts were in dispute. A formal pretrial conference took place on October 13 and resulted in agreements concerning the order of discovery and the scheduling of depositions. The case was set for a two-week trial which was to commence on May 10, 1993.

After a status conference held on December 14, 1992, the parties were ordered to file disclosure certificates by February 9, 1993, to complete discovery by April 9, and to identify all witnesses and experts relied on with respect to summary judgment motions by January 4, 1993.

On January 4, 1993, J.P. identified the experts she intended to rely on for her summary judgment motion. The experts included Captain Alvin Booth (Captain Booth), Detective Donald Adams (Detective Adams) Dr. Roland Domen (Dr. Domen), Dr. Larry Weis (Dr. Weis), Dr. David Rowlands (Dr. Rowlands), and Dr. Lowell Young (Dr. Young). Subsequently, J.P. filed her disclosure certificate endorsing Drs. Young, Weis, Rowlands, and Domen as expert witnesses. After all parties filed disclosure certificates, they began to conduct extensive discovery.

To accommodate its docket, the district court continued the trial to August 16, 1993, on its motion. After the continuance, on four occasions the district court denied J.P.'s motions for supplemental disclosure to endorse witnesses and prohibited J.P. from conducting further discovery.

The first denial of J.P.'s discovery request was during a telephone conference on March 29, 1993. J.P. informed the district court that several problems had developed with three endorsed standard-of-care witnesses and requested that Dr. Lorraine Day (Dr. Day) be substituted for the three witnesses to testify concerning the standard of care. The request was formalized on April 16, 1993, 122 days prior to trial. The court denied the request.

Second, the disclosure certificate J.P. filed in February, 1993, listed Dr. Patricia Pacey (Dr. Pacey) as a witness who would provide information on J.P.'s "economic losses" including the "cost of medical care, and other medical and economic expenses." J.P.'s disclosure certificate also listed an unnamed expert "economist." Subsequently, J.P. realized that Dr. Pacey's name had been omitted in the expert designation and on July 8, 1993, moved to specifically endorse her as an expert. The district court denied J.P.'s motion to clarify Dr. Pacey's endorsement.

Third, in J.P.'s motion to endorse Dr. Pacey, J.P. also sought leave to endorse Captain Booth and Detective Adams to rebut evidence the defendants intended to present relating to the donor's murder. Captain Booth and Detective Adams prepared affidavits concerning their investigation which were presented to the defendants as early as December 1992. J.P. claimed the officers' testimony was relevant to the determination of whether the donor was an appropriate tissue or blood donor. 2 On July 27, 1993, the district court denied the endorsement of Captain Booth and Detective Adams as untimely and incomplete for failing to summarize the anticipated testimony. J.P. moved for reconsideration, and this motion was also denied.

Finally, just prior to the trial in August, J.P. obtained new evidence concerning LifeNet's donor screening practices from two industry insiders, Jamie Grooms (Grooms) and Herb Teachy (Teachy). As a result of the new information, on August 19, 1993, the district court allowed discovery depositions of these new witnesses and on J.P.'s motion, continued the trial for a second time until June 20, 1994. 3 Simultaneously, however, the district court froze "all discovery, all endorsement of witnesses and/or exhibits and the filing of all motions." The district court subsequently rejected J.P.'s attempts to endorse additional witnesses J.P. discovered as a result of information Grooms and Teachy provided.

We issued a rule to show cause why relief should not be granted. We hold that in all four instances in which the district court prevented J.P. from either endorsing witnesses or conducting discovery, the court abused its discretion. Accordingly, we make the rule absolute.


The purposes of discovery and pretrial procedural rules include the production of all relevant evidence, the elimination of surprises at trial, the simplification of issues, and the encouragement of fair and just settlements. Bond v. District Court, 682 P.2d 33 (Colo.1984); Hawkins v. District Court, 638 P.2d 1372 (Colo.1982). The purpose of the disclosure mandated by C.R.C.P. 16 is to provide parties with adequate time to prepare by obtaining relevant evidence to prevent trial by ambush and surprise. 4 Freedman v. Kaiser Found. Health Plan of Colorado, 849 P.2d 811, 815 (Colo.App.1992); Daniels v. Rapco Foam, Inc., 762 P.2d 717, 719 (Colo.App.1988); Conrad v. Imatani, 724 P.2d 89, 92-93 (Colo.App.1986); see also Duffy v. Gross, 121 Colo. 198, 209-10, 214 P.2d 498, 504-05 (1950). C.R.C.P. 16 provides:

The purpose of this Rule 16 is to define and clarify the responsibilities of and options available to the parties and the court to facilitate a fair and speedy resolution of civil disputes with a minimum of inconvenience and expense.... The requirements of this rule may be modified only for good cause shown.

Rule 16 requires the designation of expert witnesses at a reasonable time before trial to prevent undue surprise and to give each party the opportunity to prepare adequately for trial. Freedman, 849 P.2d at 815; Four Strong Winds, Inc. v. Lyngholm, 826 P.2d 414 (Colo.App.1992). In order to allow parties to prepare for trial, Rule 16 provides:

(a) Disclosure. In every action each party shall file with the court and serve on all other parties the following enumerated information as a Disclosure Certificate. A party's Disclosure Certificate shall be prepared and signed in conformance with Rule 11. The Disclosure Certificate shall be served and filed within one hundred eighty days after the case is at issue but no later than ninety days before trial, whichever occurs first. A case shall be deemed "at issue" the tenth day after the last pleading permitted under C.R.C.P. 7 has been filed and served. The Certificate may be supplemented only as provided in Subsections (b) and (g) of this Rule. The Certificate shall state the name of the party or parties on whose behalf it is presented and shall briefly set forth the following matters under the following captions and in the following order:

I. STATEMENT OF CLAIMS AND DEFENSES. A concise and brief statement of all claims or defenses asserted by that party and identification by any party of all claims or defenses which, under the requirements of C.R.C.P. 11, are or should be dropped.


V. ITEMIZATION OF DAMAGES. An itemization of damages together with a description of the basis for calculating the damages claimed.


VII. WITNESSES. The name, address and telephone number of any witness or party whom the party may call at trial, together with a summary of such person's anticipated testimony or an attached copy of any statement of such person.


IX. EXPERTS. The name, address, and a brief summary of the qualifications of any expert witness the party may call at trial, together with a statement as to each such expert witness which sets forth the substance of the opinions to which the expert is expected to testify. If the identity of a party's expert witness is not known, the party shall disclose the anticipated area of expertise and provide a statement of probable subject matter of any expert testimony the party may use at trial.

X. DISCOVERY PLAN. A concise discovery plan setting forth any remaining discovery contemplated by that party and proposed limitations on discovery. The plan shall specify the type of discovery, the time frame and from whom the discovery will be sought. A blanket incorporation of the discovery rules shall not be permitted.


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