Trattler v. Citron, No. 06SC681.

• Decision Date: 14 April 2008
• Docket Number: No. 06SC681.
• Citation: 182 P.3d 674
• Parties: Barbara L. TRATTLER, individually, as representative of the Estate of Larry Trattler, deceased, and as next friend of Larry T. Trattler, Adam G. Trattler, and Andrew D. Trattler, minor children, Petitioner v. Daniel C. CITRON, M.D.; Colorado Internal Medicine Center, P.C.; Mark W. Keller, M.D.; and Aurora Denver Cardiology Associates, P.C., Respondents.
• Court: Colorado Supreme Court

182 P.3d 674

Barbara L. TRATTLER, individually, as representative of the Estate of Larry Trattler, deceased, and as next friend of Larry T. Trattler, Adam G. Trattler, and Andrew D. Trattler, minor children, Petitioner v. Daniel C. CITRON, M.D.; Colorado Internal Medicine Center, P.C.; Mark W. Keller, M.D.; and Aurora Denver Cardiology Associates, P.C., Respondents.

No. 06SC681.

Supreme Court of Colorado, En Banc.

April 14, 2008.

Rehearing Denied May 12, 2008.^*

Leventhal, Brown, and Puga, P.C., Jim Leventhal, Benjamin Sachs, Denver, Colorado, Attorneys for Petitioner.

Pryor Johnson Carney Karr Nixon, P.C., Elizabeth C. Moran, Greenwood Village, Colorado, Attorneys for Respondents Daniel C. Citron, M.D. and Colorado Internal Medicine Center, P.C.

Montgomery Little Soran & Murray, P.C., Amy E. Cook-Olson, Stephen J. Henson, C. Todd Drake, Greenwood Village, Colorado, Attorneys for Respondents Mark W. Keller, M.D. and Aurora Denver Cardiology.

Markusson, Green & Jarvis, P.C., David B. Bush, Denver, Colorado, Attorneys for Amicus Curiae Colorado Defense Lawyers Association.

The Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, Attorney for Amicus Curiae The Colorado Trial Lawyers Association.

Justice MARTINEZ delivered the Opinion of the Court.

In this appeal, we review the unpublished opinion of the court of appeals in Trattler v. Citron, No. 04CA2113, 2006 WL 2506741 (Colo.App. Aug. 31, 2006). The court of appeals affirmed the trial court's order that two of the plaintiff's experts were properly excluded from testifying in a wrongful death action. Interpreting the disclosure provisions in C.R.C.P. 26(a)(2)(B)(I) and the sanctions for a violation of these disclosure rules available under C.R.C.P. 37(c)(1) the trial court found that the failure of two of the plaintiff's expert witnesses to disclose a portion of their testimonial history required preclusion of their trial testimony under Rule 37(c)(1).

We reverse the ruling of the court of appeals that Rule 37(c)(1) requires that experts be precluded from testifying when they fail to provide their testimonial history under Rule 26(a)(2)(B)(I). We find that the court of appeals' opinion is contrary to Rule 37(c)(1) in two ways. First, the court of appeals held that preclusion of the witnesses' testimony was the required sanction under Rule 37(c)(1) for a violation of Rule 26(a)(2)(B)(I). To the contrary, we read Rule 37(c)(1) first to provide for preclusion of the undisclosed evidence rather than for preclusion of the testimony of expert witnesses. Second, the court of appeals did not direct the trial court to consider the Rule 37(c)(1) sanctions available to the trial court in lieu of or in addition to preclusion of the undisclosed evidence. Thus, we hold that the court should look to the sanctions listed in the "in addition to or in lieu of" section of Rule 37(c)(1) when precluding undisclosed evidence is an inappropriate or inadequate sanction.

I. Facts and Procedural History

Barbara Trattler ("Trattler"), wife of the deceased Larry T. Trattler, brought this wrongful death action on behalf of herself, as next friend, as representative to the estate of the deceased, and on behalf of the deceased's two sons. She alleges that two doctors, Daniel Citron ("Dr. Citron") and Mark Keller ("Dr. Keller"), along with their respective partnerships, Colorado Internal Medicine Center and Aurora Denver Cardiology Associates respectively, were liable for the decedent's death when they failed to find the arterial blockage that eventually led to his heart attack.

In 1989, the deceased retained Dr. Citron as his primary physician. During the twelve years preceding his death, the deceased began registering an elevated cholesterol count, necessitating cholesterol inhibitors to curb a high LDL count. In November 1999, Dr. Citron ordered an EBCT scan to determine the extent to which the deceased exhibited calcium deposits in and around his coronary arteries. The deceased posted an EBCT score in the "slightly" to "highly" elevated range, suggesting the existence of arterial plaque.

Subsequently, Dr. Citron increased the deceased's cholesterol medications and referred him to a cardiologist, Dr. Keller, who was retained for the purpose of ruling out obstructive heart disease. Dr. Keller conducted a stress EKG on the decedent to test for heart abnormalities. Finding nothing out of the ordinary in the test results, Dr. Keller advised the decedent to continue treatment with Dr. Citron.

In late November or early December 2001, the deceased called Dr. Citron's office complaining of chest pains. Based on the description of the pain, Dr. Citron advised the deceased that the symptoms likely were not heart-related. Despite Dr. Citron's belief that the pain represented nothing serious, the deceased scheduled a complete physical for January 4, 2002. However, on December 22, 2001, the deceased suffered a sudden severe heart attack, which left him in a deep coma. He did not regain consciousness. With no prognosis for recovery and a high likelihood of brain damage, his family removed the deceased from life support on December 27, 2001. When he died, Larry Trattler was fifty years old. An autopsy later indicated that the deceased's heart attack was due to heart failure as a consequence of coronary blockage.

On her husband's behalf, Barbara Trattler filed suit against Drs. Citron and Keller, along with their partnerships, alleging substandard care, including the failure to offer a more sensitive cardiac test to detect obstructive heart disease. To prove her case, Trattler hired Drs. Jay Schapira ("Dr. Schapira") and Richard Birrer ("Dr. Birrer"), along with a third doctor, to serve as expert witnesses to demonstrate that Drs. Citron and Keller failed to meet their respective standards of care.

Specifically, Dr. Schapira was of the opinion that both Drs. Citron and Keller provided substandard medical care to Larry Trattler. Dr. Schapira was prepared to testify that Dr. Keller did not order the appropriate medical test and, as a result, did not detect Larry Trattler's obstructive heart disease. Further, Dr. Schapira was prepared to testify that Dr. Citron did not obtain Larry Trattler's informed consent by failing to refer Larry Trattler for additional tests once he posted a high heart score and complained of chest pains.

Dr. Birrer was prepared to testify that a stress thallium test should have been ordered by either Dr. Citron or Dr. Keller when Larry Trattler exhibited a high heart score and chest pains. In addition, Dr. Birrer was of the opinion that Dr. Citron should have referred Larry Trattler to an emergency room when he exhibited chest pains in the days before the heart attack. Unlike the third doctor, who was an academic doctor at a teaching hospital, both Drs. Birrer and Schapira were practicing clinicians with substantially more clinical experience than Trattler's third expert physician.¹

In accordance with C.R.C.P. 26(a)(2), Trattler filed a disclosure approximately 120 days before trial, endorsing the three doctors to serve as expert witnesses on the various standards of care required in a medical malpractice suit. At the time of the endorsement, she provided the experts' qualifications, reports summarizing their findings, and a comprehensive list of their recent publications, each of which is required by Rule 26(a)(2)(B)(I). However, Trattler did not provide a complete list of the other cases in which Drs. Schapira and Birrer testified during the preceding four years, which Rule 26(a)(2)(B)(I) also requires.

Several weeks after the 120-day deadline passed, Trattler updated the experts' partial testimonial history and promised to supplement the list as additional information became available. Not waiting for Trattler to file a complete testimonial history for both experts, defendants' attorneys consulted a defense attorneys' expert witness database to compile their own list of cases in which Drs. Schapira and Birrer had previously testified. While it is unclear from the record whether the defendants' list was exhaustive, it was far more complete than the early lists provided by Trattler.

On June 15, 2004, when Dr. Schapira was deposed, defendants' attorneys used their more complete testimonial history to ask Dr. Schapira the details of several cases Trattler failed to disclose. This prompted a meeting between Trattler's attorney and Dr. Schapira over the lunch break, where Dr. Schapira attempted to remember every case in which he had testified over the previous four years and provided an updated list to the defense. However, this too was an incomplete list. When the parties did not finish the deposition in the eight hours allotted, Trattler agreed to allow the defendants a second day to depose Schapira so that they could further inquire about Schapira's testimonial history.

Similarly, when defendants' attorneys deposed Dr. Birrer a week later, he too was asked about cases not listed in his disclosure documents. Dr. Birrer also attempted to supplement his testimonial history. At the end of Dr. Birrer's deposition, the parties again agreed to continue the deposition at an undetermined later date so that the defendants could ask more questions about Dr. Birrer's past testimony once that testimonial history was known to them.

Before Drs. Schapira and Birrer could be scheduled for additional depositions, however, defendants filed motions to strike both Drs. Schapira and Birrer, claiming that each failed to provide adequate testimonial histories as required by Rule 26(a)(2)(B)(I). Specifically, defendants argued that Dr. Schapira failed to properly document over one hundred previous cases in which he testified in the four years prior to Trattler's suit. The defendants also claimed that Dr. Birrer failed to document six prior cases in which he gave testimony in the previous four years. Trattler filed a detailed response, and each of the experts further...