Redden v. SCI Colo. Funeral Servs., Inc., 01SA176.

• Decision Date: 17 December 2001
• Docket Number: No. 01SA176.,01SA176.
• Citation: 38 P.3d 75
• Parties: Brock REDDEN and Patricia Redden, v. SCI COLORADO FUNERAL SERVICES, INC., d/b/a Hampden Memorial Gardens, a Colorado corporation.
• Court: Colorado Supreme Court

38 P.3d 75

Brock REDDEN and Patricia Redden, v. SCI COLORADO FUNERAL SERVICES, INC., d/b/a Hampden Memorial Gardens, a Colorado corporation.

No. 01SA176.

Supreme Court of Colorado, En Banc.

December 17, 2001.

As Modified on Denial of Rehearing January 14, 2002.

Pearson & Horowitz, P.C., Bruce G. Smith, Robert M. Horowitz, Jane G. Ebisch, Denver, CO, Attorneys for Plaintiff.

Snell & Wilmer, L.L.P., Timothy G. O'Neill, Stephanie J. Quincy, James D. Kilroy, Denver, CO, Attorneys for Defendant.

Justice KOURLIS delivered the Opinion of the Court.

In this case, we address the statutory requirements associated with designating a professional non-party at fault in tort litigation. We conclude that such designation is deficient as a matter of law when it alleges only causation and not all the elements of negligence sufficient to establish legal responsibility. While the professionals consulted pursuant to section 13-20-602(3)(a), 5 C.R.S. (2001), need not necessarily be members of the same profession as the non-party, they must be able to opine competently that the non-party breached an applicable standard of care pursuant to the requirements of paragraph 602(3)(c). The trial court here acted within its discretion in dismissing a non-party designation of a professional that failed to meet these various standards, and we therefore discharge our rule to show cause.

I.

Brock Redden, Respondent here and plaintiff below, was involved in a vehicle accident with an employee of SCI Colorado Funeral Services, Inc., defendant below and Petitioner here. Redden appeared to suffer no injury in the mishap and drove from the scene under his own volition. Two days later, however, experiencing neck and back pain, he visited Dr. Mark Wolff, a Denver chiropractor. For two consecutive days, Wolff administered various chiropractic treatments targeting Redden's neck and right shoulder. Three days after the last visit Redden suffered a debilitating stroke, the result of a dissection of his carotid artery.

Redden filed a personal injury claim against SCI on September 29th, 2000, for damages resulting from the accident. On December 20, SCI filed a designation with the trial court seeking to identify the chiropractor as a "non-party at fault" under section 13-21-111.5(3)(b), 5 C.R.S. (2001). The designation contained the following assertions:

1. Dr. Mark M. Wolff . . . provided a treatment and therapy regimen to Plaintiff. . . . This treatment involved neck and spinal manipulation, myofacial release and intersegmental traction. . . . Plaintiff's attending physician could not rule out manipulation by a chiropractor as a cause of the corotid [sic] artery tear and subsequent infarct due to clot formation. Accordingly, Defendant SCI designates Dr. Wolff and Green Mountain Chiropractic as responsible non-parties . . . for the reason that the conduct of these non-parties is wholly or partially at fault for Plaintiff's claims, injuries, damages, and losses.

CERTIFICATE OF REVIEW

The below signed attorney consulted a person who has expertise in the area of the above alleged negligent conduct.

The professional who has been consulted has reviewed the known facts, including such records, documents, and other materials which the professional has found to be relevant (and currently available) to the allegations of negligent conduct and, based on the review of such facts, has concluded that the filing of this Non-Party at Fault designation does not lack substantial justification within the meaning of section 13-17-102(4).

Redden filed a motion to strike the designation as insufficient under the applicable statute, and on April 2, 2001, the trial court granted the motion, ruling the non-party designation "deficient as a matter of law." The court noted that the designation "doesn't tell us anything about Dr. Wolff. It tells us about some ER doctor who cannot rule something out. Now in my opinion that is speculation at this point." Because the trial was then three months away, the court gave SCI just four days to correct the deficiency, in one of two ways. First, SCI could "supplement the designation, setting forth what Dr. Wolff is alleged to have done to constitute negligence . . . and the specialty of the expert that [SCI] conferred with." Alternatively, SCI could submit in camera "the names of the experts, their specialties, their CV's, specifically what each expert reviewed, and specifically their opinions." On opposing counsel's request, the trial judge added that she would like a copy of the "memorializing document" concerning conversations with consulted experts and, absent that, she wanted "the dates on which the conferrals were made."

In response, on April 6th, 2001, SCI submitted a "supplemental designation" stating, "Dr. Wolff . . . provided a treatment and therapy regime to Plaintiff Brock Redden. . . . Dr. Wolff fell below the standard of care in that he should not have administered treatment, manipulation or diagnostic testing" in light of Redden's numerous medical conditions. The supplemental designation continued:

The following discussion identifies facts and circumstances suggesting the causal correlation between chiropractic care and [Redden's] carotid dissection.

1. [Redden's] condition prior to the chiropractic care suggests that the chiropractic care was causally related to his stroke. . . .

. . . .

3. . . . It is just as likely that the severe jerking of a chiropractic manipulation could have caused a dissection or caused an aggravation of a dissection that would have otherwise healed on its own.

SCI included three medical articles connecting stroke with chiropractic treatment and a "preliminary draft" report and substantial CV of one Dr. John Norris, a neurology and cerebrovascular disease specialist. The report is dated March 29th, 2001, and concludes:

1. Under these circumstances even relatively modest chiropractor manipulation may tear the intima of the artery and so produce dissection. 2. In view of the timing and type of neck manipulation I believe that the chiropractic manipulation is the more probably [sic] factor though some partial role of the previous accident, cannot be excluded.

Closing the submission, SCI's counsel stated she would proffer additional expert testimony when the expert disclosures were due on April 30th, 2001.

To satisfy both of the trial court's alternatives, SCI also provided a packet of information to the court for in camera review. That submission contained, among other things, the emergency room report noting that the stroke "is possibly related to his minor vehicle accident or manipulation by a chiropractor"; the report of Dr. Bryan Mahan, a cardiovascular and thoracic surgeon, who opined that the "visit to the chiropractor can result in the carotid dissections, particularly if rapid rotational forces are used to (correct) a cervical spinal lesion, as is commonly done"; and statements that counsel had "several discussions" with Dr. Norris "during the month of December, prior to [Redden's] designation of Dr. Wolff." Finally, SCI included several of Redden's medical records.

On April 19th the trial court again ruled the designation deficient, stating:

Neither of the reviewing doctors (Norris or Mahan) is a chiropractor, as is Dr. Wolff. Neither of the reviewing doctors establishes what the standard of chiropractic care is, nor is there sufficient information presented from which the Court can conclude that they were qualified to so opine. Neither of the reviewing doctors opines as to the specific conduct or omission of Dr. Wolff by which he was allegedly negligent. The standard of chiropractic care and breach thereof and is [sic] raised solely through arguments of counsel.

After SCI's supplemental submission, but before the trial court ruled, Redden had submitted a renewed motion to strike the designation. On April 27, 2001, SCI submitted a "Response to Plaintiff's Renewed Motion to Strike and Motion for Reconsideration" in which SCI reasserted the legal arguments in support of the designation and also included, for the first time, an April 19th report by Dr. Blaine Fitzgerald, a chiropractor from South Carolina. Fitzgerald's twelve-page report set forth a detailed analysis of Wolff's failings in the treatment of Redden. It included several references to "standard of care" and alleged Wolff had clearly fallen below that standard.

On May 10, 2001, the court for the third time denied SCI's designation. Without analysis, the judge determined that SCI had failed to establish "good cause" why she should allow the filing of the amended non-party designation or new certificate of review. Upon this ruling, SCI sought a rule to show cause under C.A.R. 21. We issued such rule, directing Redden to show cause why the trial court rulings were correct.

II.

Colorado Appellate Rule 21 provides this court original jurisdiction to review whether a trial court abused its discretion in circumstances where a remedy on appeal would prove inadequate. Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 975 (Colo. 1999). Here, SCI argues that if the trial court erroneously precluded it from designating Wolff as a non-party defendant, then any outcome of the trial will be inherently flawed.

In civil liability cases, Defendants may designate non-parties they contend are "wholly or partially at fault" by giving notice under section 13-21-111.5(3)(b), 5 C.R.S. (2001).

Negligence or fault of a nonparty may be considered . . . if the defending party gives notice . . . within ninety days following commencement of the action unless the court determines that a longer period is necessary. The notice shall be given by filing a pleading in the action designating such nonparty and setting forth such nonparty's name and last-known address, . . . together with a brief statement of the basis for believing such nonparty to be at fault. . . . If the designated nonparty is a licensed health care professional and the

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