Leaffer v. Zarlengo, 01SA324.

Citation44 P.3d 1072
Decision Date15 April 2002
Docket NumberNo. 01SA324.,01SA324.
PartiesKaren LEAFFER and Steven Leaffer, Plaintiffs, v. Gerald V. ZARLENGO; Cristee Locke Offerdahl; and Midtown Obstetrics & Gynecology P.C., Defendants.
CourtSupreme Court of Colorado

Holland & Hart, LLP, A. Bruce Jones, Marcy G. Glenn, Denver, Colorado, Attorneys for Plaintiffs.

Johnson, McConaty & Sargent, P.C., Brian G. McConaty, Catherine O'Brien-Crum, Glendale, Colorado, Attorneys for Respondents.

Justice RICE delivered the Opinion of the Court.

The petitioners-plaintiffs in this case, Karen and Steven Leaffer, (Petitioners), initiated this original proceeding pursuant to C.A.R. 21, seeking relief from a trial court order denying their motion to compel the respondent-defendants, Gerald V. Zarlengo, Cristee Locke Offerdahl, and Midtown Obstetrics & Gynecology, P.C., (Respondents), to respond to interrogatories and to produce Dr. Zarlengo's appointment calendar. In a one sentence order, the trial court summarily denied Petitioners' motion without explanation. Thus, the trial court appears to have accepted Respondents' position (1) that they were not required to answer all of Petitioners' non-pattern interrogatories because they included subparts that Respondents were entitled to treat as separate interrogatories; and (2) that they were not required to produce a less-redacted version of Dr. Zarlengo's appointment calendar because only the information specifically related to Ms. Leaffer's visits is relevant, and therefore, it was appropriate for them to omit all other entries.

We issued a rule to show cause why mandamus should not issue to require the trial court to reverse its order denying Petitioners' motion to compel. We conclude that the trial court erred in summarily denying Petitioners' motion to compel Respondents to answer the interrogatories and abused its discretion in similarly denying their motion to compel production of the appointment book. We hold that only discrete subparts of non-pattern interrogatories — and not those logically or factually subsumed within and necessarily related to the primary question — must be counted toward the interrogatory limit set forth in the Case Management Order. In addition, we adopt the test set forth in Kendall v. GES Exposition Services., Inc., 174 F.R.D. 684 (D.Nev.1997) to aid courts in distinguishing between discrete and non-discrete subparts. Applying the Kendall test to the non-pattern interrogatories at issue, we hold that none contain discrete subparts; therefore, each interrogatory counts as one question. Finally, we hold that the trial court abused its discretion in denying Petitioners' motion to compel production of Dr. Zarlengo's appointment calendar. Accordingly, we make the rule absolute.

I. FACTS AND PROCEDURAL HISTORY

Petitioners brought this medical malpractice and wrongful death action in Denver District Court, contending that Respondents' care of Ms. Leaffer during her pregnancy was inadequate and caused physical and emotional harm to her and the death of her infant daughter.1

During the discovery stage of the litigation, Petitioners served sixteen non-pattern interrogatories, among other discovery demands, to Respondents. Respondents argued that each subpart of each interrogatory should be considered a separate question. Since the Case Management Order limited the number of non-pattern interrogatories to twenty, Respondents separated the interrogatories into sixty separate questions, renumbered them, and advised Petitioners to choose twenty of the sixty for Respondents to answer.2

Petitioners filed a motion to compel responses to their first set of written discovery with the trial court, arguing that pursuant to C.R.C.P. 33(a) only "discrete" subparts should be counted separately. Applying federal cases interpreting the federal counterpart to C.R.C.P. 33(a), Petitioners argued that discrete subparts are those that are not "logically or factually subsumed within and necessarily related to the primary question." Therefore, Petitioners contended, none of their interrogatories contained discrete subparts; rather, any subparts focused on issues that are logically and factually related to the primary question and therefore should not be counted separately. Petitioners also rejected Respondents' contention that C.R.C.P. 33(e) mandates that "any subpart" — whether discrete or not — constitutes a separate interrogatory, arguing that this interpretation of the Rule would lead to absurd results.

Respondents countered that C.R.C.P. 33(e) makes it clear that "any subpart to a non-pattern interrogatory" should be considered a separate interrogatory. Therefore, even if a subpart is related to the primary question, Respondents contended that each subpart must be considered a separate question.

In addition, as part of the initial disclosure process, Petitioners requested that Respondents produce copies of Dr. Zarlengo's office calendars and/or appointment books for August through December 1998 with patient names, other than Ms. Leaffer's, redacted. Respondents produced an appointment calendar with all information redacted except for entries specifically related to Ms. Leaffer.

Petitioners argued that the redactions were excessive and did not allow them to determine how many appointments and other activities Dr. Zarlengo had scheduled on the days Ms. Leaffer had appointments. Since the complaint alleged lack of continuity of care at Respondents' offices, Petitioners argued that information regarding or likely to lead to the discovery of evidence of Dr. Zarlengo's competing obligations is directly relevant to their malpractice claim.

Respondents contended that Dr. Zarlengo's office calendar is not relevant because the number of patients seen by him does not make it more or less probable that he was negligent in his failure to timely diagnose Ms. Leaffer's condition since he could not have detected cardiomyopathy prior to the congestive heart failure, which occurred about two weeks after Ms. Leaffer's last visit to Dr. Zarlengo. The trial court summarily denied Petitioners' motion to compel Respondents to answer the interrogatories and to produce the calendar, and this petition for mandamus followed.

This proceeding presents two issues: (1) whether the trial court erred by rejecting Petitioners' motion to compel Respondents to answer the non-pattern interrogatories; and (2) whether the trial court abused its discretion in denying Petitioners' motion to compel Respondents to produce Dr. Zarlengo's unredacted appointment books. Before we address the merits of the two issues raised in this petition for mandamus, we will discuss our exercise of original jurisdiction in this case.

II. ORIGINAL JURISDICTION

Article VI, Section 3, of the Colorado Constitution is the source of this court's original jurisdiction.3 C.A.R. 21 governs original proceedings and states in pertinent part:

This rule applies only to the original jurisdiction of the Supreme Court to issue writs as provided in Section 3 of Article VI of the Colorado Constitution.... Relief under this rule is extraordinary in nature and is a matter wholly within the discretion of the Supreme Court. Such relief shall be granted only when no other adequate remedy, including relief available by appeal... is available.

C.A.R. 21(a).

We have held that we may exercise our original jurisdiction when a pre-trial ruling places a party at a "significant disadvantage in litigating the merits of the controversy" and "conventional appellate remedies would prove inadequate." Mitchell v. Wilmore, 981 P.2d 172, 175 (Colo.1999) (internal quotation marks omitted). Matters of pretrial discovery are usually within the trial court's discretion; however, "they are not exempted from extraordinary relief under appropriate circumstances." Sanchez v. Dist. Court, 624 P.2d 1314, 1316-17 (Colo. 1981). Indeed, we have recognized numerous times that discovery rulings can have a significant effect on a party's ability to litigate the merits of the controversy, warranting the exercise of our original jurisdiction. See Kerwin v. Dist. Court, 649 P.2d 1086, 1088-89 (Colo.1982)

(making rule absolute and directing production of party's ledgers where "an appeal would not provide petitioner with an adequate remedy"); see also, e.g., Caldwell v. Dist. Court, 644 P.2d 26, 30-31, 34 (Colo.1982) (making rule absolute and directing district court to reconsider motion to compel production of documents where the "denial of discovery ... would undercut the Caldwells' ability to prove the allegations of their complaint"); Sanchez, 624 P.2d at 1316-17 (reviewing deposition-related question because, among other things, absent mandamus review the discovery issue "may otherwise evade effective review").

In addition, we have exercised our original jurisdiction to address issues of "significant public importance which we have not yet examined." City & County of Denver v. Dist. Court, 939 P.2d 1353, 1361 (Colo.1997) (ruling that district court's denial of petitioner's motion to dismiss respondent's claims and request to stay proceedings raised issues of substantial public concern when parties had included alternative dispute resolution procedures in their contract); Higgs v. Dist. Court, 713 P.2d 840, 849 (Colo.1985) (addressing "significant issues" of first impression relating to nature and scope of prosecutorial immunity under 42 U.S.C. § 1983); People v. Dist. Court, 673 P.2d 991, 995 (Colo.1983) (holding that issues concerning nature of criminal proceedings were of significant public importance for a C.A.R. 21 proceeding); Sanchez, 624 P.2d at 1316-17 (holding that pretrial discovery issue was of significant public importance for an original proceeding).

The legal question of how subparts to interrogatories should be counted under C.R.C.P. 33 is a matter of significant importance and presents a matter of first impression. In addition, the trial court's order denying Petitioner's motion to compel Respo...

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