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DISTRICT COURT, ARAPAHOE COUNTY,
STATE OF COLORADO
DATE FILED: July 21, 2023 9:20 PM
Court Address: FILING ID: 8A67F90274C39
7325 S. Potomac St., #300 CASE NUMBER: 2020CV31581
Denver, CO 80112
Plaintiff: TONYA GILLEY
vs.
Defendant: JOEL ROCHE
▲COURT USE ONLY▲
Attorneys for Plaintiff:
Julian M. Bendinelli (#49155)
Anna L. Vigdorova (#52459) Case No: 2020CV031581
Michael D. Reinhardt (#49530)
BENDINELLI LAW FIRM, P.C.
9035 Wadsworth Pkwy., Suite 4000 Division: 202
Westminster, CO 80021
Phone Number: 303.940.9900
Fax Number: 303.940.9933
Email: JMB@colawfirm.com; ALV@colawfirm.com;
MDR@colawfirm.com
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE TO LIMIT
PLAINTIFF’S EXPERT TESTIMONY TO DISCLOSED MEDICAL OPINIONS
Defense counsel is asking the Court to issue an order that precludes Plaintiff’s treating
providers from offering testimony about anything other than the content within the four corners of
their medical records. Specifically, Defendant maintains that Plaintiff has not met the disclosure
requirements set by C.R.C.P. 26(a)(2)(B)(II). Defendant also requests that Plaintiff’s non-retained
experts not testify about any biomechanical engineering and accident reconstruction issue, including
that subject collision caused Plaintiff’s claimed injuries.
Defendant’s Motion does not address any specific testimony defense counsel is concerned
about or proffer evidence in detail that Plaintiff’s non-retained experts might opine to at trial that this
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Court must address. Rather, Defendant’s Motion argues uncertainty combined with selective and
incomplete authority to limit what Plaintiff’s non-retained/treating physicians may testify to at trial.
Plaintiff respectfully requests this Court to DENY Defendant’s Motion because said Motion
does not specify any prejudice from which a valid sanction may be imposed.
I. LEGAL STANDARD
Reasonableness and proportionality are the overarching goals of fair resolution of discovery
disputes. See generally C.R.C.P 26 and 37. Trial courts are tasked with gatekeeper directives and afforded
broad discretion to determine the probative value and prejudicial impact of evidence. See People v. Taylor,
545 P.2d 703, 706 (Colo. 1976). Trial courts also have broad discretion to determine admissibility of
expert testimony and the sanctions to be imposed on a party for failure to disclose the substance of
testimony intended to be elicited from an expert witness’ testimony. Great W. Sugar Co. v. Northern Natural
Gas Co., 661 P.2d 684, 694 (Colo. App. 1982); Farmland Mut. Ins. Cos. V. Chief Indus., 170 P.3d 832, 836
(Colo. App. 2007). If appealed, evidentiary rulings are reviewed for an abuse of discretion and will be
overturned if the trial court’s ruling is manifestly arbitrary, unreasonable, or unfair. Hock v. New York Life
Ins. Co., 876 P.2d 1242, 1251 (Colo. 1994) (internal citation omitted); Wark v. McClellan, 68 P.3d 574, 578
(Colo. App. 2003).
II. ARGUMENT
Plaintiff requests this Court to deny Defendant’s Motion because it seeks to limit testimony of
non-retained experts to only the four corners of their medical records by citing incomplete authority. See
Kirby v. United Fin. Cas. Co., 2016 Colo. Dist. LEXIS 844, 2-3 (Colo. Dist. Oct. 31, 2022).
As the Court is aware, Rule 26 provides provisions governing expert testimony. Colo. R. Civ. P.
26(a)(2)(B)(I) and (II). Subpart (II) states,
(II) Other Experts. With respect to a party or witness who may be called to provide
expert testimony but is not retained or specially employed within the description
contained in subsection (a)(2)(B)(I) above, the disclosure shall be made by a written
report or statement that shall include: (a) a complete description of all opinions to be
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expressed and the basis and reasons therefor; (b) a list of the qualifications of the
witness; and (c) copies of any exhibits to be used as a summary of or support for the
opinions. If the report has been prepared by the witness, it shall be signed by the
witness. If the witness does not prepare a written report, the party’s lawyer or the party,
if self-represented, may prepare a statement and shall sign it. The witness’s direct
testimony expressing an expert opinion shall be limited to matters disclosed in detail
in the report or statement.
Id.
Non-retained experts, also known as, occupational experts, generally include “treating
physicians, police officers, or others who might testify as experts but whose opinions are formed as
part of their normal occupational duties.” Gall v. Jamison, 44 P.3d 233, 234 n.2 (Colo. 2002). The
opinions of non-retained treating provider witnesses are those formed in the medical provider’s role
as a treating physician. Gonzales v. Windlan, 411 P.3d 878, 884 (Colo. App. 2014); see also, Marlow v.
Atchson Topeka and Santa Fe Railway Company, 671 P.2d 438 (Colo. App. 1983) (holding in part that it
was not in error to allow physicians to testify as medical experts regarding future medical expenses).
As such, a treating provider’s opinions within his or her scope of expertise is acceptable testimony. Id.
Here, Plaintiff disclosed information as required by C.R.C.P. 26. Colo. R. Civ. P. 26(a)(2)(B)(II).
The Defendant is aware of all non-retained treating physicians in this matter and has been for years.
Id. In fact, Defendant has deposed several of Plaintiff’s non-retained experts. See C.R.C.P. 30. Written
discovery was also propounded, and answers were given. See C.R.C.P. 33. Defendant has had ample
opportunity to discover relevant issues and determine what, if anything, may be prejudicial or harmful.
See C.R.C.P. 26. Yet, Defendant’s Motion does not identify one issue with specificity as to any
anticipated testimony from Plaintiff’s treating physicians. See Catholic Health Initiative Colorado v. Earl
Swensson Assocs., Inc., 403 P.3d 185, 187 (Colo. 2017). Without knowing what particular non-disclosed
opinions might be presented, the Court cannot ascertain the harm or prejudice of the opinion and will
not be able to weigh the proportionality of any sanction imposed. Lee v. Glover, 2023 Colo. Dist. LEXIS
123, *5-7 (Colo. Dist. March 19, 2023).
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This Motion does not address the admissibility of evidence as a motion in limine should under
C.R.E. 104. The Court should deny Defendant’s Motion because motions in limine are meant to address
evidence which may be logically, but not legally, relevant. Good v. A.B. Chance, Co., 565 P.2d 217, 221
(Colo. 1977). They are not meant to allow the Defendant to avoid the issues that necessitate trial – a
finding of fact from a jury. Id. If counsel for Defendant believes that counsel for Plaintiff elicits improper
evidence at trial, then the appropriate recourse is to contemporaneously object.
WHEREFORE, Plaintiff respectfully requests this Court DENY Defendant’s Motion in Limine to
Limit Plaintiff’s Expert Testimony to Disclosed Medical Opinions.
Respectfully submitted this 21st day of July 2023.
BENDINELLI LAW FIRM, P.C.
This pleading is filed electronically pursuant
to C.R.C.P. 121 § 1-26. The original signed
pleading is in counsel’s file.
By: /s/ Michael D. Reinhardt
Julian M. Bendinelli (#49155)
Anna L. Vigdorova (#52459)
Michael D. Reinhardt (#49530)
Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
I hereby certify that on July 21, 2023, a true and correct copy of the foregoing was e-filed
and/or e-served via Colorado Courts E-Filing System to the following:
Caleb Meyer, Esq. (#34292)
John H. Stevens, Esq. (#32115)
Ian Ray Mitchell, Esq. (#34887)
MESSNER REEVES LLP
1550 Wewatta Street, Suite 710
Denver, CO 80202
(t) 303-623-1800
(f) 303-623-0552
E-mail: cmeyer@messner.com
jstevens@messner.com
imitchell@messner.com
Attorneys for Defendant
/s/Michael D. Reinhardt
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DISTRICT COURT, ARAPAHOE COUNTY, STATE OF COLORADO DATE FILED: July 21, 2023 9:20 PM Court Address: FILING ID: 8A67F90274C39 7325 S. Potomac St., #300 CASE NUMBER: 2020CV31581 Denver, CO 80112 Plaintiff: TONYA GILLEY vs. Defendant: JOEL ROCHE ▲COURT USE ONLY▲ Attorneys for Plaintiff: Julian M. Bendinelli (#49155) Anna L. Vigdorova (#52459) Case No: 2020CV031581 Michael D. Reinhardt (#49530) BENDINELLI LAW FIRM, P.C. 9035 Wadsworth Pkwy., Suite 4000 Division: 202 Westminster, CO 80021 Phone Number: 303.940.9900 Fax Number: 303.940.9933 Email: JMB@colawfirm.com; ALV@colawfirm.com; MDR@colawfirm.com PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE TO LIMIT PLAINTIFF’S EXPERT TESTIMONY TO DISCLOSED MEDICAL OPINIONS Defense counsel is asking the Court to issue an order that precludes Plaintiff’s treating providers from offering testimony about anything other than the content within the four corners of their medical records. Specifically, Defendant maintains that Plaintiff has not met the disclosure requirements set by C.R.C.P. 26(a)(2)(B)(II). Defendant also requests that Plaintiff’s non-retained experts not testify about any biomechanical engineering and accident reconstruction issue, including that subject collision caused Plaintiff’s claimed injuries. Defendant’s Motion does not address any specific testimony defense counsel is concerned about or proffer evidence in detail that Plaintiff’s non-retained experts might opine to at trial that this 1 of 5 Court must address. Rather, Defendant’s Motion argues uncertainty combined with selective and incomplete authority to limit what Plaintiff’s non-retained/treating physicians may testify to at trial. Plaintiff respectfully requests this Court to DENY Defendant’s Motion because said Motion does not specify any prejudice from which a valid sanction may be imposed. I. LEGAL STANDARD Reasonableness and proportionality are the overarching goals of fair resolution of discovery disputes. See generally C.R.C.P 26 and 37. Trial courts are tasked with gatekeeper directives and afforded broad discretion to determine the probative value and prejudicial impact of evidence. See People v. Taylor, 545 P.2d 703, 706 (Colo. 1976). Trial courts also have broad discretion to determine admissibility of expert testimony and the sanctions to be imposed on a party for failure to disclose the substance of testimony intended to be elicited from an expert witness’ testimony. Great W. Sugar Co. v. Northern Natural Gas Co., 661 P.2d 684, 694 (Colo. App. 1982); Farmland Mut. Ins. Cos. V. Chief Indus., 170 P.3d 832, 836 (Colo. App. 2007). If appealed, evidentiary rulings are reviewed for an abuse of discretion and will be overturned if the trial court’s ruling is manifestly arbitrary, unreasonable, or unfair. Hock v. New York Life Ins. Co., 876 P.2d 1242, 1251 (Colo. 1994) (internal citation omitted); Wark v. McClellan, 68 P.3d 574, 578 (Colo. App. 2003). II. ARGUMENT Plaintiff requests this Court to deny Defendant’s Motion because it seeks to limit testimony of non-retained experts to only the four corners of their medical records by citing incomplete authority. See Kirby v. United Fin. Cas. Co., 2016 Colo. Dist. LEXIS 844, 2-3 (Colo. Dist. Oct. 31, 2022). As the Court is aware, Rule 26 provides provisions governing expert testimony. Colo. R. Civ. P. 26(a)(2)(B)(I) and (II). Subpart (II) states, (II) Other Experts. With respect to a party or witness who may be called to provide expert testimony but is not retained or specially employed within the description contained in subsection (a)(2)(B)(I) above, the disclosure shall be made by a written report or statement that shall include: (a) a complete description of all opinions to be 2 of 5 expressed and the basis and reasons therefor; (b) a list of the qualifications of the witness; and (c) copies of any exhibits to be used as a summary of or support for the opinions. If the report has been prepared by the witness, it shall be signed by the witness. If the witness does not prepare a written report, the party’s lawyer or the party, if self-represented, may prepare a statement and shall sign it. The witness’s direct testimony expressing an expert opinion shall be limited to matters disclosed in detail in the report or statement. Id. Non-retained experts, also known as, occupational experts, generally include “treating physicians, police officers, or others who might testify as experts but whose opinions are formed as part of their normal occupational duties.” Gall v. Jamison, 44 P.3d 233, 234 n.2 (Colo. 2002). The opinions of non-retained treating provider witnesses are those formed in the medical provider’s role as a treating physician. Gonzales v. Windlan, 411 P.3d 878, 884 (Colo. App. 2014); see also, Marlow v. Atchson Topeka and Santa Fe Railway Company, 671 P.2d 438 (Colo. App. 1983) (holding in part that it was not in error to allow physicians to testify as medical experts regarding future medical expenses). As such, a treating provider’s opinions within his or her scope of expertise is acceptable testimony. Id. Here, Plaintiff disclosed information as required by C.R.C.P. 26. Colo. R. Civ. P. 26(a)(2)(B)(II). The Defendant is aware of all non-retained treating physicians in this matter and has been for years. Id. In fact, Defendant has deposed several of Plaintiff’s non-retained experts. See C.R.C.P. 30. Written discovery was also propounded, and answers were given. See C.R.C.P. 33. Defendant has had ample opportunity to discover relevant issues and determine what, if anything, may be prejudicial or harmful. See C.R.C.P. 26. Yet, Defendant’s Motion does not identify one issue with specificity as to any anticipated testimony from Plaintiff’s treating physicians. See Catholic Health Initiative Colorado v. Earl Swensson Assocs., Inc., 403 P.3d 185, 187 (Colo. 2017). Without knowing what particular non-disclosed opinions might be presented, the Court cannot ascertain the harm or prejudice of the opinion and will not be able to weigh the proportionality of any sanction imposed. Lee v. Glover, 2023 Colo. Dist. LEXIS 123, *5-7 (Colo. Dist. March 19, 2023). 3 of 5 This Motion does not address the admissibility of evidence as a motion in limine should under C.R.E. 104. The Court should deny Defendant’s Motion because motions in limine are meant to address evidence which may be logically, but not legally, relevant. Good v. A.B. Chance, Co., 565 P.2d 217, 221 (Colo. 1977). They are not meant to allow the Defendant to avoid the issues that necessitate trial – a finding of fact from a jury. Id. If counsel for Defendant believes that counsel for Plaintiff elicits improper evidence at trial, then the appropriate recourse is to contemporaneously object. WHEREFORE, Plaintiff respectfully requests this Court DENY Defendant’s Motion in Limine to Limit Plaintiff’s Expert Testimony to Disclosed Medical Opinions. Respectfully submitted this 21st day of July 2023. BENDINELLI LAW FIRM, P.C. This pleading is filed electronically pursuant to C.R.C.P. 121 § 1-26. The original signed pleading is in counsel’s file. By: /s/ Michael D. Reinhardt Julian M. Bendinelli (#49155) Anna L. Vigdorova (#52459) Michael D. Reinhardt (#49530) Attorneys for Plaintiff 4 of 5 CERTIFICATE OF SERVICE I hereby certify that on July 21, 2023, a true and correct copy of the foregoing was e-filed and/or e-served via Colorado Courts E-Filing System to the following: Caleb Meyer, Esq. (#34292) John H. Stevens, Esq. (#32115) Ian Ray Mitchell, Esq. (#34887) MESSNER REEVES LLP 1550 Wewatta Street, Suite 710 Denver, CO 80202 (t) 303-623-1800 (f) 303-623-0552 E-mail: cmeyer@messner.com jstevens@messner.com imitchell@messner.com Attorneys for Defendant /s/Michael D. Reinhardt 5 of 5