Bryan McCluskey sued various medical providers for their alleged negligence during his spine surgery. McCluskey sought a second opinion from Dr. Kuklo, who obtained a CT scan on his lower back and concluded that one of the screws inserted during McCluskey’s earlier operations was misplaced and was possibly contacting his S1 nerve root. Dr. Kuklo performed further surgery on McCluskey and corrected the malpositioned screw.
The Colorado medical malpractice jury returned a defense verdict, determining that their conduct was neither negligent nor the cause of McCluskey’s injuries. McCluskey subsequently moved for a new trial under C.R.C.P. 59(d), arguing that the court’s judgment should be vacated and a new trial ordered because (1) newly discovered evidence of an undisclosed ex parte meeting between Dr. Kuklo and defense counsel a few days before trial revealed potential bias that resulted in an unfair trial and (2) defense counsel’s closing argument improperly relied on alleged facts not in evidence to assert that McCluskey was a liar.
McCluskey first became aware of the ex parte meeting between defense counsel and Dr. Kuko after trial, when defense counsel filed a bill of costs that included an invoice from Dr. Kuklo for time spent with defense counsel at the January 2025 pretrial ex parte meeting.
Before trial, the district court’s case management order (CMO) required defense counsel to give McCluskey fourteen days’ notice before participating in any ex parte meetings with McCluskey’s treating physicians. According to his initial expert witness disclosures, McCluskey intended to call Dr. Kuklo to testify at trial as one such treating physician. In August 2023, Dr. Kuklo provided deposition testimony concerning his care and treatment of McCluskey. In January 2025, three days before trial, defense counsel met with Dr. Kuklo to discuss his trial testimony but did not provide McCluskey notice of the ex parte meeting. Dr. Kuklo testified at trial consistently with his deposition testimony.
The Colorado Court of Appeals stated in its August 20, 2026 unpublished opinion: “Dr. Kuklo repeatedly testified at trial that he intended to testify only about his personal care and treatment of McCluskey and not to offer any opinions as to the standard of care or McCluskey’s broader negligence claims. In fact, as the district court observed, much of Dr. Kuklo’s testimony “simply reiterated notes or statements in his medical records,” and Dr. Kuklo expressly declined to offer opinions that could be confused with those more properly reserved for retained expert witnesses. Once again, these statements and opinions were consistent with those that Dr. Kuklo made during his earlier deposition testimony. Absent any evidence in the record that shows the ex parte meeting either affected or likely affected the outcome of McCluskey’s trial, we cannot conclude that the court abused its discretion by denying McCluskey’s motion for a new trial on that basis.”
Source McCluskey v Janssen, 25CA1324.
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