The Colorado Court of Appeals stated in its opinion filed on June 29, 2017 that if one party in a Colorado medical malpractice case withdraws an endorsed “may call” expert witness shortly before trial or during trial, and the opposing party then announces that it wants to call the withdrawn witness to testify, a trial court should, in the exercise of its discretion, balance factors such as (1) whether the expert’s testimony would be cumulative; (2) whether excluding the expert’s testimony would result in unfair prejudice to the nonendorsing party; and (3) whether the nonendorsing party did not endorse its own expert on the subject, because the absence of such an endorsement would suggest an attempt to “piggyback” on the endorsing party’s preparation.
The Colorado medical malpractice defendants had endorsed several expert witnesses more than three months before the medical malpractice trial. About six weeks before the trial, the defendants designated two expert witnesses as “may call” witnesses on their witness list. The plaintiff did not endorse either of the two “may call” experts designated by the defendants but he reserved the right “to call any witnesses listed by . . . [d]efendants and any rebuttal or impeachment witnesses as may be deemed necessary, at the conclusion of [d]efendants’ case.”
“May Call” vs. “Will Call” Witnesses
C.R.C.P. 16(f)(3)(VI)(A) distinguishes between “may call” and “will call” witnesses: “When a party lists a witness as a “will call” witness, the party does not have to call the witness to testify, but must ensure that the witness will be available to testify at trial if called by any party without the necessity for any other party to subpoena the witness for the trial.” There is no such requirement for “may call” witnesses.
Eleven days before trial, the defendants filed a motion stating that they would not call one of their expert witnesses at trial and asked the trial court to exclude all of his “[d]eposition testimony, handwritten notes, and literature” from the trial. The following day, the plaintiff updated his witness list to include the defendant’s expert and served him with a subpoena.
The trial court ruled that the plaintiff could not call the defendant’s expert as his witness and that the plaintiff could not refer to his deposition or expert report, noting that the defendants had listed him as a “may call” witness and that they were entitled to withdraw him as an expert witness.
Then, near the end of the defendants’ case-in-chief during trial, the defendants said that they would not call their other “may call” expert to testify during trial. The plaintiff asked the court to allow him to call that expert as his own rebuttal witness or to allow him to read the expert’s deposition to the jury, alleging that the expert’s opinions rebutted other defense expert opinions. The trial court denied the plaintiff’s request, stating that the plaintiff should have endorsed the expert as his own witness if he had planned to rely on his opinions in rebuttal.
The Colorado Court Of Appeals Opinion
The Colorado Court of Appeals held that the trial court did not abuse its discretion when it permitted defendants to withdraw their two experts and that they did not have an obligation to make them available at trial to testify because the defendants had designated them as “may call” witnesses, not “will call” witnesses.
The Colorado Court of Appeals stated that the plaintiff did not comply with C.R.C.P. 26 because he did not timely endorse either of the defendants’ experts and he also did not inform the court and the defendants that he would use their depositions at trial under C.R.C.P. 16(f)(3)(VI)(D). The Colorado Court of Appeals noted that the plaintiff had endorsed several of his own experts with similar expertise.
The Colorado Court of Appeals stated that C.R.C.P. 26 and its federal counterpart are silent about whether a party may call an opposing party’s expert witness once the opposing party has withdrawn the expert, and that Colorado appellate courts have not addressed this question.
The Colorado Court of Appeals concluded that the record supports the trial court’s implicit decision that the defendants’ experts’ testimony and the depositions would have been cumulative or would have had little probative value. The Colorado Court of Appeals further concluded that the plaintiff was not unfairly prejudiced by the trial court’s decision to exclude this testimony: the plaintiff did not endorse either expert in a timely fashion, even though he had deposed them and he had learned of the substance of their expert opinions well in advance of trial.
Source Sovde v. Scott, 2017COA90
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