October 18, 2017

Colorado Supreme Court: Amendment to Rule 26 Does Not Mandate Exclusion of Non-disclosed Expert Testimony

The Colorado Supreme Court issued its opinion in Catholic Health Initiatives Colorado v. Earl Swensson Associates, Inc. on Monday, October 2, 2017.

Expert Testimony—Discovery Sanctions.

In this case, the Colorado Supreme Court considered whether an amendment to Colorado Rule of Civil Procedure 26(a)(2)(B) providing that expert testimony “shall be limited to matters disclosed in detail in the [expert] report” mandates the exclusion of expert testimony as a sanction when the underlying report fails to meet the requirements of Rule 26. The court concluded this amendment did not create mandatory exclusion of expert testimony and that instead, the harm and proportionality analysis under Rule 37(c) remains the proper framework for determining sanctions for discovery violations. Accordingly, the court made its rule to show cause absolute and remanded the case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

 

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