September 24, 2017

Colorado Supreme Court: Trial Court Erred in Admitting Non-expert Testimony on Sexual Predator Grooming

The Colorado Supreme Court issued its opinion in Romero v. People on Monday, May 1, 2017.

Criminal Law—Expert Testimony—Jury Access to Exhibits.

This case required the Colorado Supreme Court to address two issues it recently addressed in two other cases, People v. Jefferson, 2017 CO 35, and Venalonzo v. People, 2017 CO 9. Specifically, the court resolved (1) whether a trial court commits plain error when it fails to limit, sua sponte, a jury’s access to recorded statements during jury deliberations, and (2) whether a trial court abuses its discretion when it allows a police officer to testify as a lay witness about the concept of grooming in the context of sexual predation. The court held that a trial court does not commit plain error when it does not limit a jury’s access to recorded statements without an objection, and that a trial court abuses its discretion when it allows a witness to testify about grooming without qualifying that witness as an expert. The court therefore reversed defendant’s convictions and remanded the case for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Testimony that Could Not Be Offered Without Specialized Knowledge is Expert Testimony

The Colorado Supreme Court issued its opinion in Venalonzo v. People on Monday, February 6, 2017.

 Criminal Trials—Evidence.

In this case, the Colorado Supreme Court considered the admissibility of testimony under  CRE 701 and 702. The court held that in determining whether  testimony is lay testimony under CRE 701 or expert testimony under CRE 702, trial  courts must look to the basis for the opinion. If the witness provides testimony that could be expected to be based on an ordinary person’s experiences or knowledge, then the witness is offering lay testimony. If, on the other hand, the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering expert testimony. Applying that rule in this case, the court concluded that some portions of a forensic interviewer’s testimony were admissible as lay opinion but that others were inadmissible expert testimony in the guise of lay opinion. The court also addressed the admissibility of testimony under CRE 608(a) and concluded that some of the interviewer’s and the victim’s mother’s testimony was inadmissible under CRE 608(a) as it improperly bolstered the credibility of the child victims.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Officer who Testified About Blood Transfer Should Have Been Qualified as Expert

The Colorado Supreme Court issued its opinion in People v. Ramos on Monday, February 6, 2017.

Criminal Law—Expert Testimony.

This case, like the recently announced case Venalonzo v. People, 2016 CO 9, required the Supreme Court to address the difference between lay and expert testimony. Specifically, it required the court to resolve one issue—whether an ordinary person would be able to differentiate reliably between blood castoff (i.e., blood droplets from waving a hand around) and blood transfer (i.e., blood transferred by physical contact). Applying the test announced in Venalonzo, the court held that an ordinary person would not be able to testify reliably about the difference between blood cast-off and blood transfer. Therefore, the court affirmed the court of appeals’ holding that the trial court abused its discretion by not qualifying the police detective’s blood testimony as expert testimony.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Expert Testimony Relating to Victim’s Veracity Erroneously Admitted

The Colorado Court of Appeals issued its opinion in People v. Relaford on Thursday, June 30, 2016.

Sexual Assault—Child—Testimony—Truthfulness—Bad Acts or Character Evidence—Colorado Sex Offender Lifetime Supervision Act.

A jury convicted Relaford of 27 offenses related to sexual assaults against two child victims, and the trial court sentenced him to an aggregate indeterminate term of 204 years to life under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), CRS §§ 18-1.3-1001 to -1012.

Relaford appealed the judgment and sentence. He argued that the therapist’s testimony regarding the circumstances in which a child might fabricate claims of sexual assault and her statement that she had never encountered sexual assault fabrications in any other circumstances constituted impermissible opinion testimony that the victims in this case were not lying.  The Court of Appeals agreed, and this evidence should not have been presented to the jury. However, because defense counsel failed to object to the testimony, the error was not obvious, and there was substantial evidence to prove Relaford’s guilt, it was not plain error to admit the therapist’s statements.

Relaford also argued that the trial court reversibly erred in admitting numerous sex toys and pornography found at his home. Although Relaford conceded that the admission of evidence regarding sex toys that the children identified was proper, he argued that the trial court erred in admitting evidence of the other sex toys and the pornography that the children didn’t identify because it was irrelevant and constituted impermissible bad acts or character evidence. Some of this evidence probably should not have been admitted, but any error in this respect was harmless, given the substantial evidence to prove Relaford’s guilt and the prosecutions argument to the jury not to consider this evidence as other bad acts.

Additionally, Relaford contended that SOLSA is unconstitutional. Relaford did not raise the constitutional challenges at trial, and the Court thus declined to review them. However, the Court stated that even if it were to exercise its discretion to review Relaford’s constitutional claims it would conclude that he is not entitled to relief; several divisions of the Court previously considered constitutional challenges to SOLSA and concluded it is constitutional.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defense Counsel Did Not Err by Refusing to Call Expert Witness who Agreed with Prosecution

The Colorado Court of Appeals issued its opinion in People v. Garner on Thursday, December 17, 2015.

First-Degree Murder—Ineffective Assistance of Counsel—Rebuttal Expert—Jury Instructions—Conflict of Interest.

Defendant was charged and found guilty of first-degree murder for stabbing a female friend to death when the two were most likely high on methamphetamine.

On appeal, defendant contended that the post-conviction court erred in denying his motion because the evidence at the post-conviction hearing established that his trial counsel was ineffective. Defense counsel was not ineffective for failing to call a rebuttal expert to testify regarding the cause of the victim’s death after defendant’s first expert changed her mind and agreed with the prosecution’s expert witnesses. Further, because the subject of hypothermia as a potential cause of death was not central to the case, defense counsel did not err in failing to call an expert on this issue. It was also reasonable for defense counsel to forgo calling a methamphetamine expert, who could cause more harm than good to defendant’s case, and to forego calling another inmate, Mr. K, when this witness had three felony convictions and two other inmates had already been used as impeachment witnesses to rebut the prosecution’s witness. It was also not a conflict of interest for defense counsel to represent defendant after previously having represented Mr. K, who was a potential witness for defendant.

Defendant also asserted that his attorney erred by not objecting to the jury instructions, which only contained a partial instruction regarding intoxication law. However, voluntary intoxication was not consistent with defendant’s theory of the case, which was that he did not kill the victim. Therefore, although defense counsel should have asked to include a complete instruction regarding intoxication law since the prosecution had introduced the instruction, it was not err in failing to do so given the theory of the case. In light of these considerations, the post-conviction court correctly determined that defendant had not shown an actual conflict of interest adversely affecting his counsel’s performance.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Scope of Police Officer’s Testimony Within Knowledge of Average Computer User

The Colorado Court of Appeals issued its opinion in People v. Froehler on Thursday, July 30, 2015.

Child Pornography—Lay Testimony—Personal Observations—Specialized Knowledge.

Froehler accidently left a flash drive on a public business computer at a hotel. The flash drive was recovered by two hotel guests, who opened it and found that some of the files contained child pornography. They turned over the flash drive to hotel security, who contacted police. A jury found Froehler guilty of sexual exploitation of a child.

On appeal, Froehler contended that the trial court abused its discretion by allowing the detective who investigated the case to give improper lay testimony. The detective testified about her personal observations of the dates the files on the flash drive were created and modified. Admission of the detective’s lay testimony was proper under CRE 701 because the method she used to view the dates did not require any specialized knowledge or familiarity with computers beyond that of the average lay person. The detective’s testimony about the ImageScan software program used to search Froehler’s home computers, however, was improperly admitted as lay testimony because this testimony did require specialized knowledge about the software. Nevertheless, its admission was harmless because no child pornography had been found on Froehler’s home computers and this evidence had no direct bearing on whether Froehler “knowingly possessed” the child pornography on the flash drive. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: No Error for Court to Find One Side’s Expert Witnesses More Persuasive

The Tenth Circuit Court of Appeals issued its opinion in Mathis v. Huff & Puff Trucking, Inc. on Tuesday, June 2, 2015.

Melvin Mathis was injured in February 2008 when the car he was driving was struck by a Huff & Puff truck driven by Donald Stewart. Mr. Stewart was at fault for the accident; he was driving too fast for the icy road conditions and the truck he was driving should not have been in the left lane. Mr. Mathis was awake and alert after the accident. He was transported by ambulance to a local hospital, where the emergency room doctor found no evidence of head trauma but diagnosed him with neck and back strains. Mr. Mathis sought further treatment from Dr. Schulze, who conducted MRIs of his back and neck and noted Mr. Mathis suffered multiple areas of sprain to his spine from the collision. Dr. Schulze referred Mr. Mathis to Dr. Cook, a neurosurgeon, because the accident had aggravated Mr. Mathis’s preexisting disc lesions. Dr. Cook treated Mr. Mathis non-surgically for several months and Mr. Mathis stopped treatment in May 2009.

Mr. Mathis returned to Dr. Cook’s office in April 2011 where he saw a different doctor, Dr. Beer. In the interim, Mr. Mathis had worked as a nighttime fuel delivery person, where he performed physically demanding tasks and was under no work restrictions. When he first evaluated Mr. Mathis, Dr. Beer performed repeat MRIs of his spine, which were essentially unchanged from those taken in 2008. Dr. Beer performed fusion surgery on Mr. Mathis’s spine to relieve his chronic pain.

In February 2012, Mr. Mathis filed this negligence action in federal district court, and an eight day bench trial was held in July 2013. Mr. Mathis alleged the accident caused permanent injuries to his spine, a mild traumatic brain injury (MTBI), emotional distress, and pain and suffering. The district court heard conflicting testimony regarding the extent of Mr. Mathis’s injuries. The district court issued findings of fact and conclusions of law, rejecting Mr. Mathis’s claims that his spine was permanently injured by the accident and that he suffered an MTBI, and awarding Mr. Mathis damages for reasonable out-of-pocket medical expenses, past emotional distress, pain and suffering, loss of enjoyment of life, and loss of income.

Two weeks after trial, Mr. Mathis’s counsel learned that the judge’s law clerk’s husband was retained by AIG to monitor the proceedings. After learning about the law clerk’s relationship, Mr. Mathis’s counsel filed a motion for a new trial and a motion to alter or amend the judgment, arguing the evidence did not support the district court’s ruling that Mr. Mathis suffered no MTBI and only minor spinal injuries; the court erroneously relied on the testimony of a biomechanical engineer; the law clerk had an undisclosed conflict of interest; and the judgment should be amended or altered to correct an inadequate damages award based on the trial court’s errors. When these motions were denied, Mr. Mathis appealed.

The Tenth Circuit first evaluated Mr. Mathis’s claims that the district court erroneously concluded he suffered only mild spinal injuries and no MTBI. Evaluating for clear error, the Tenth Circuit found that trial evidence supported the court’s conclusion that the spinal injuries were not significant. The court evaluated conflicting evidence from medical records, expert testimony, and lay witness testimony, and determined that Mr. Mathis’s spinal sprains resolved in approximately mid-2009. Although Mr. Mathis pointed to testimony contrary to the court’s finding, this does not imply clear error since such cases generally have conflicting testimony and the court’s duty is to sift through the competing narratives. The Tenth Circuit similarly found no clear error in the trial court’s finding that Mr. Mathis did not suffer an MTBI, since it weighed the evidence and determined that the defense evidence was more persuasive.

Next turning to Mr. Mathis’s criticisms of the biomechanical engineer, Dr. Hayes, the Tenth Circuit noted that Mr. Mathis failed to preserve his objections to Dr. Hayes’s testimony and therefore it would only evaluate for plain error. Mr. Mathis challenged only whether Dr. Hayes’s testimony exceeded the scope of his expertise. Defendants argued Mr. Mathis forfeited any objection because he failed to object to the defense’s pre-trial witness statement and did not object during the questioning of Dr. Hayes at trial. The Tenth Circuit agreed.

The Tenth Circuit turned then to Mr. Mathis’s motion for a new trial. Mr. Mathis argued the judge should have recused after the law clerk’s husband was retained by AIG to monitor the trial, averring the relationship created a conflict under Canon 3(F) of the Code of Conduct for Judicial Employees. The Tenth Circuit found no abuse of discretion by the district court because there was no actual conflict under Canon 3(F) and no appearance of impropriety. Canon 3(F) specifies that law clerks should not perform any official duties in cases in which their spouse has a financial interest, is acting as a lawyer in the proceeding, or has an interest that could be affected by the outcome of the proceeding. In this case, the husband had no financial or other interest in the outcome of the proceeding and was not acting as a lawyer for a party, but was merely retained by defendants’ insurer to monitor the proceedings. As to the appearance of impropriety, the law clerk informed the judge of her relationship prior to the first day her husband monitored the court proceedings. After that, the judge conducted all her own research and wrote the opinion by herself. Although the Tenth Circuit noted the better approach would have been for the judge to inform the parties of the relationship and for the clerk to stop attending the trial, there was no impropriety in the handling of the proceedings.

The district court’s judgment was affirmed.

Colorado Court of Appeals: Admission of “Overkill” Testimony Acceptable Despite Lack of Findings Regarding Scientific Significance

The Colorado Court of Appeals issued its opinion in People v. Ruibal on Thursday, May 7, 2015.

Domestic Violence—Limiting Instruction—Expert Testimony—CRE 404(b)—CRS § 18-6-801.5—Hearsay—Photographs.

Defendant Ruibal appealed his judgment of conviction and sentence to forty years imprisonment entered on a jury verdict finding him guilty of second-degree murder. The victim, D.P., was fatally beaten during a December weekend in 2007. She died in the apartment that she and Ruibal shared. The prosecution theorized that, in an act of domestic violence, Ruibal assaulted D.P. in their apartment on a Saturday evening, and that D.P. died on Sunday or Monday from injuries sustained in the beating.

On appeal, Ruibal contended that the trial court erred when it did not give a limiting instruction during the testimony of the prosecution’s domestic violence expert. CRE 404(b) and CRS § 18-6-801.5 permit a trial court to admit evidence of other acts of domestic violence between a defendant and a victim if offered to show common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or some other purpose. In such cases, the trial court must instruct the jury as to the limited purpose for which the other acts evidence is admissible. Here, the expert did not specifically reference any prior acts of domestic violence between Ruibal and D.P. She merely explained the general dynamics that exist in abusive relationships. Based on these circumstances, the trial court did not err when it declined to give a limiting instruction during the testimony of the prosecution’s domestic violence expert.

Ruibal also contended that the trial court abused its discretion when it permitted a pathologist to present expert testimony regarding victim “overkill.” Although the trial court should have entered specific findings on the reliability of the underlying scientific theories, the court overruled Ruibal’s objection to the overkill evidence, implicitly determining that the pathologist’s expert testimony was based on a reliable scientific principle. Further, the trial court did not err when it permitted the expert to testify that his opinion was based on his experience.

Ruibal further contended that the trial court abused its discretion when it admitted five gruesome color photographs that showed the inside of D.P.’s head. The photographs were relevant to show the extent of injuries and the mental state of intent, which outweighed any prejudicial impact. Therefore, the trial court did not err in admitting these photographs. The judgment and sentence were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: District Court Required to Review All Circumstances in Determining Validity of Batson Challenge

The Tenth Circuit Court of Appeals issued its opinion in United States v. Vann on Friday, January 16, 2015.

Rayvell Vann paid cash for a one-way Amtrak ticket from Los Angeles to Kansas City two hours before the train departed. A confidential informant relayed the unusual circumstances of the ticket purchase to DEA Agent Small in Albuquerque, and when the train made a scheduled stop in New Mexico, Agent Small boarded the train and located Vann. After a brief conversation, Agent Small asked to search Vann’s bags and he consented. The search revealed two bottles of codeine, 25 OxyContin pills, and two jars containing approximately 100 grams of PCP. Vann was interrogated and admitted to dealing drugs, but he contended he did not know the PCP was in the box where the pills were found because he had shipped the PCP via UPS. He was charged with two counts of possession with intent to distribute PCP and codeine, and was convicted on both counts. He dismissed his attorneys at sentencing, deciding instead to proceed pro se, and was sentenced to 15 years’ imprisonment. He appealed, raising four issues.

Vann’s first issue on appeal was that the district court committed legal error during jury selection because it improperly administered the three-part Batson test after the government moved to strike the sole African-American member of the venire. Both sides concede that the other party met its obligation as to the first and second parts of the Batson test, so the Tenth Circuit analyzed only the third part — the district court’s obligation to consider all circumstances in determining whether there was racial animosity in the juror strike. During trial, Vann objected to the prosecution’s strike of the juror, but Vann also filed a post-trial Rule 33 motion, arguing that the government’s reasons for striking the juror were pretextual. The Tenth Circuit examined the record, acknowledging the record was limited as to the district court’s reasons for accepting the prosecution’s race-neutral explanations. However, the Tenth Circuit noted that its precedent makes clear that the district court need not make a complete record as to the reasons for denying a Batson challenge, although the better practice may be to complete the record. As to Vann’s post-trial motion, the Tenth Circuit strongly discouraged the practice, finding that this put the district court into an awkward position. Vann could have instead reiterated his Batson challenge after the completion of voir dire but before the jury was empaneled, which would have allowed the court to adequately compare similarly situated jurors before the trial began.

Vann next contended the district court erred by allowing Agent Small’s expert testimony at trial. Vann does not claim error in the court’s qualification of Agent Small as an expert, contesting only the reliability of the testimony. The Tenth Circuit noted that the district court properly vetted Agent Small through a Daubert hearing and at trial. The Tenth Circuit also found that, contrary to Vann’s assertions, Agent Small had considerable experience in the drug trade and had attested to numerous PCP arrests. The Tenth Circuit found no abuse of discretion.

Vann’s third claim was that the district court erred in not sua sponte addressing alleged prosecutorial misconduct during trial. After reviewing the record, the Tenth Circuit found that the prosecution’s comments were “simply lawyering,” or attempts to influence the jury’s verdicts by presenting evidence favorable to its case. Further, a limiting instruction provided by the district court and limiting remarks made by the prosecutor mitigated any error there might have been.

Vann’s final claim is that he did not knowingly waive his right to counsel at sentencing. The district court had conducted a waiver-of-counsel inquiry at the beginning of trial, and Vann elected to have representation at trial. When Vann discharged his attorney at the sentencing phase, the trial court questioned whether he was firing his attorney as a tactic to gain time, since he had fired two previous attorneys. The court allowed him to proceed pro se at the sentencing phase. Vann contends that he did not receive an adequate waiver-of-counsel inquiry prior to sentencing, but the Tenth Circuit found he was adequately informed of the risks of proceeding unrepresented due to the previous inquiry.

The Tenth Circuit affirmed the district court.

Tenth Circuit: § 1983 Challenges Unlikely to Succeed on Merits; Stay of Execution Denied

The Tenth Circuit Court of Appeals issued its opinion in Warner v. Gross on Monday, January 12, 2015.

In early 2014, Oklahoma changed its execution procedure for lethal injections due to the state’s inability to obtain two of the drugs previously used. In April 2014, Clayton Lockett was the first Oklahoma state prisoner to be executed using the new procedures, and his execution did not go smoothly. The IV used to deliver the lethal drug cocktail infiltrated, or leaked into his tissue instead of delivering the drugs to his veins. He experienced unusual effects from the lethal injection but eventually died anyway. After Lockett’s execution, the state developed new protocols for lethal injections, including establishing two viable IV sites and using various combinations of drugs, including midazolam, a sedative.

In November 2014, four inmates with scheduled execution dates as soon as January 15, 2015, among a group of twenty-one Oklahoma death row inmates, filed a § 1983 lawsuit challenging the constitutionality of Oklahoma’s new lethal injection procedure. Their complaint alleged eight counts, two of which are relevant to their appeal. Count 2 challenges the use of midazolam as violative of the Eighth Amendment’s prohibition against cruel and unusual punishment. Count 7 also raises an Eighth Amendment claim, asserting that the state is effectively experimenting on unwilling human subjects by using the untested procedure. After a three-day evidentiary hearing, the district court denied plaintiffs’ motion for preliminary injunction, concluding the inmates failed to show a likelihood of success on the merits. The plaintiffs appealed as to Count 2 and Count 7, and filed an emergency motion for stay of execution.

The Tenth Circuit conducted an abuse of discretion review and found none. The Tenth Circuit examined the long history of challenges to capital punishment, noting (1) the Supreme Court has never held that capital punishment violates the Eighth Amendment prohibition on cruel and unusual punishment, (2) the Supreme Court has never invalidated a state’s chosen procedure for carrying out the sentence, (3) there must be some means of carrying out the death sentence, and the Constitution does not demand avoidance of all pain, and (4) a stay of execution may not be granted unless the prisoner demonstrates a substantial risk of severe pain from the state’s chosen lethal injection procedure.

The plaintiffs contested the district court’s finding that the testimony of the defendants’ expert witness, Dr. Roswell Lee Evans, the Dean of the School of Pharmacy at Auburn University, was persuasive. The Tenth Circuit examined Dr. Evans’s credentials and found him to be well-qualified to render an expert opinion on the effects of midazolam. The plaintiffs also argued that the district court misapplied Supreme Court precedent in Baze v. Rees, 533 U.S. 35 (2008). The Tenth Circuit disagreed, instead concluding that the plaintiffs failed to show that midazolam created a risk of extreme pain.

The Tenth Circuit affirmed the district court’s denial of the motion for preliminary injunction. In a footnote, the Tenth Circuit added that, in “an abundance of caution,” the opinion was circulated to all the judges prior to publication, and no judge requested en banc review.

Colorado Court of Appeals: Testimony of Treating Physician About Preexisting Condition Properly Admitted in Personal Injury Case

The Colorado Court of Appeals issued its opinion in Gonzales v. Windlan on Wednesday, December 31, 2014.

Personal Injuries—Expert Testimony—Non-retained Expert—Noneconomic Damages—Costs—Prevailing Party.

This case arose from a car accident in which Windlan drove through an intersection without the right-of-way and struck a car driven by Gonzales. The jury found Windlan 60% at fault and Gonzales 40% at fault for the accident. The trial court found Windlan to be the prevailing party and awarded costs to her in the amount of $15,637.77.

On appeal, Gonzales contended that the trial court abused its discretion in admitting Dr. Sayed’s expert testimony about a radiologist’s MRI report from October 2009. Dr. Sayed was Gonzales’s primary care physician, treated Gonzales after the accident, reviewed the MRI report from another specialist at the time, and opined that the MRI report showed a degenerative condition that was probably present before Gonzales’s accident and did not indicate an acute injury as claimed by Gonzales. Although he was not a radiologist, Dr. Sayed had the knowledge and experience to testify about MRI reports because he regularly reviewed and relied on them in the course of his medical practice. Therefore, Dr. Sayed was qualified to give expert testimony about the 2009 MRI report, and such testimony was properly admitted as non-retained expert testimony.

Gonzales also contended that the jury award of zero noneconomic damages was contrary to the evidence and inconsistent with the jury award of $640 for economic damages. There was ample evidence, however, to support the jury’s finding that Gonzales’s injuries were minor and did not result in compensable noneconomic damages.

Gonzales also contended that the trial court abused its discretion in finding that Windlan was the prevailing party and granting Windlan’s motion for costs under CRCP 54(d). The jury’s verdict generally aligned with Windlan’s position on each contested issue. It found Gonzales 40% at fault for the accident (Gonzales claimed that Windlan was fully at fault); awarded damages in an amount equal to an amount billed by the doctor who diagnosed Gonzales with a temporary muscle strain (Gonzales sought $212,000 in economic damages); and awarded no damages for noneconomic losses or physical impairment (Gonzales’s counsel requested noneconomic damages between $25,000 and $2 million). Therefore, the trial court did not abuse its discretion in finding Windlan to be the prevailing party and awarding costs to Windlan. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Delays Caused by Plaintiff’s Counsel Justified Dismissal with Prejudice

The Colorado Court of Appeals issued its opinion in Kallas v. Spinozzi, O.D. on Thursday, December 4, 2014.

Professional Negligence—Sanctions—Motion to Strike Expert—Failure to Prosecute—Motion to Continue.

Kallas filed this action against Spinozzi, a licensed optometrist, asserting claims of professional negligence, battery, and lack of informed consent arising from a procedure Spinozzi performed on her right eye. The court granted Spinozzi’s motion to dismiss the case with prejudice for failure to prosecute. This occurred after a three-year delay; after Kallas’s attorney refused to remove himself from the case despite serious health issues; after Kallas’s attorney refused to cooperate in production of documents and refused to schedule Kallas’s expert for deposition; and after Kallas’s attorney failed to appear for numerous hearings and trial.

On appeal, Kallas contended that the trial court abused its discretion by granting Spinozzi’s motion to strike Kallas’s expert. Trial courts have broad discretion to manage the discovery process, including the ability to impose sanctions. Here, Kallas failed to cooperate in scheduling her expert’s deposition and failed to produce her expert’s file; Kallas’s discovery violation was neither substantially justified nor harmless; and Spinozzi was unfairly prejudiced by Kallas’s uncooperative conduct. For those reasons, the sanction of striking Kallas’s expert was not an abuse of discretion, even though it ultimately led to the dismissal of the case.

Kallas also contended that the trial court abused its discretion when it dismissed her claims for failure to prosecute on the day of trial. In addition to failing to schedule the expert deposition, Kallas’s attorney failed to attend a court-ordered settlement conference; failed to appear at the mandatory pretrial readiness conference; and failed to file a trial management order, witness list, exhibit list, or jury instructions. Therefore, the trial court did not err in dismissing the case.

Kallas further argued that the trial court erred in denying her motion to continue the April 15 trial. The record supports the trial court’s finding that the health problems faced by Kallas’s counsel when he moved for a continuance were foreseeable. Moreover, the issues raised in Kallas’s motion for a continuance were the same issues that the trial court predicted and proactively tried to address months before. The record also supports the trial court’s finding that Spinozzi would be substantially prejudiced by a continuance of the trial date. For these reasons, the trial court did not abuse its discretion in denying Kallas’s motion for a continuance. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.