July 18, 2019

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.

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