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DISTRICT COURT, JEFFERSON COUNTY, COLORADO
Court Address: 100 Jefferson County Parkway
Golden, CO 80401 DATE FILED: November 6, 2023 5:36 PM
_________________________________________ FILING ID: F4C9E8A53A4A5
Plaintiffs: CASE NUMBER: 2023CV30003
NATALIA MOON, ELLA AKIMOV AND
DAMIAN PETRENKO
v.
Defendants:
▲ COURT USE ONLY ▲
RONALD W. SERVIS AS SPECIAL
ADMINISTRATOR OF THE ESTATE OF
PAUL SHELTON AND APRIL MUCCIANTE Case Number: 2023CV30003
_________________________________________
GALPERIN AND ASSOCIATES
Jacob Galperin, #45625 Div.: 4
Emily Somervill, #49748
3773 Cherry Creek North Drive, Ste. 701E
Denver, Colorado 80209
Telephone: (720) 501-3451
Fax Number: (720) 533-6222
E-mail: jg@galperinlegal.com
es@galperinlegal.com
PLAINTIFFS’ RESPONSE TO DEFENDANT MUCCIANTE’S MOTION
TO LIMIT THE EXPERT TESTIMONY OF TREATING PROVIDERS FROM
TESTIFYING TO OR RENDERING OPINIONS NOT CONTAINED IN THEIR
TREATMENT RECORDS
COME NOW Plaintiffs, by and through undersigned counsel, and submit Plaintiffs’
Response to Defendant Mucciante’s Motion to Limit the Expert Testimony of Plaintiffs’
Treating Providers from Testifying to or Rendering Opinions Not Contained in Their Treatment
Records pursuant to C.R.C.P. 26(a)(2), and state as follows:
I. Relevant Background
1. On January 3, 2021, Plaintiffs filed the instant Complaint seeking damages for personal
injuries arising from a motor vehicle collision that occurred on October 7, 2021.
2. On July 26, 2021, Plaintiffs amended their Complaint to identify Defendant Ronald W.
Servis as Special Administrator of the Estate of Paul Shelton.
3. Plaintiffs timely disclosed their treating providers on July 7, 2022. A description of
Plaintiffs’ treating providers’ opinions was timely and properly disclosed pursuant to C.R.C.P.
26(a)(2). See Exhibit 1, Plaintiffs’ Expert Disclosures.
4. Plaintiffs also disclosed a narrative expert report from Plaintiff Moon’s treating provider,
Dr. Jonathan Bernardini, M.D., along with his Curriculum Vitae (hereinafter “CV”) and Fee
Schedule on July 7, 2022. Id. See also, Exhibit 2, Dr. Bernardini’s Narrative Expert
Report.
5. Plaintiffs’ treating providers were timely and properly disclosed pursuant to C.R.C.P.
26(a)(2). See Exhibit 1, Plaintiffs’ Expert Disclosures.
6. A description of Plaintiffs’ treating providers’ opinions were timely and properly
disclosed pursuant to C.R.C.P. 26(a)(2). Id.
7. All of Plaintiffs’ medical records were disclosed with Plaintiffs’ Initial Disclosures and
Supplemental Disclosures.
8. All medical records which formed the basis of Dr. Bernadini’s Narrative Expert Report
were disclosed with Plaintiffs’ Initial Disclosures and Supplemental Disclosures as Plaintiff
Moon underwent medical treatment given her extensive injuries caused by the subject motor
vehicle collision.
A. PLAINTIFFS’ TREATING PHYSICIANS ARE “NON-RETAINED EXPERTS”
PURSUANT TO C.R.C.P. 26(a)(2)(B)(II).
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1. Rule 26(a)(2)(A) states that a party shall disclose the identity of any expert who may
testify at trial along with their field of expertise.
2. Rule 26(a)(2)(B) distinguishes between two different types of experts and sets forth the
different disclosure requirement for each of the two types.
3. Rule 26(a)(2)(B)(I) applies to experts who were retained or specially employed to testify
at trial (hereinafter “retained experts”).
4. Rule 26(a)(2)(B)(II) applies to experts who were not retained or specially employed to
testify at trial, but who became involved in the case due to their occupational or other duties;
e.g., police officers or treating physicians (hereinafter “non-retained experts”).
5. Subpart (B)(I) requires the disclosure of the following matters regarding retained
experts:
a. report or summary containing a complete statement of all opinions to be
expressed and the basis and reasons therefore;
b. the data or other information considered by the witness in forming the opinions;
c. any exhibits to be used as a summary of or support for the opinions;
d. the qualifications of the witness, including a list of all publications authored by
the witness within the preceding ten years;
e. the compensation for the study and the testimony;
f. and a listing of any other cases in which the witness has testified as an expert at
trial or by deposition within the preceding four years.
6. Subpart B(II) requires the disclosure of the following matters regarding non-retained
experts:
a. a report or summary containing the qualifications of the witness;
b. a report or summary containing a complete statement describing the substance of
all opinions to be expressed and the basis and reasons therefore.
7. Plaintiffs were injured in an automobile accident on October 7, 2021. In connection with
their injuries they sustained as a result of this accident, Plaintiffs were examined and treated by
their treating providers identified in Plaintiffs’ Expert Disclosures. See Exhibit 1, Plaintiffs’
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Expert Disclosures. Plaintiffs did not retain or specially employ any of Plaintiffs’ treating
providers as professional witnesses for the purpose of testifying at trial. Plaintiffs chose to
designate their treating providers as experts because their treating providers were already
occupationally involved in their medical care. Thus, Plaintiffs’ treating providers are not
“retained experts”; they are “non-retained experts.” Consequently, the expert disclosure
requirements applicable to Plaintiffs’ non-retained treating providers are controlled by Subpart
(B)(II).
8. Given that Plaintiffs’ treating providers are non-retained experts, as per the rule, a written
description of their opinions, qualifications and medical records are not required to contain
citations to scientific or medical literature to support their opinions. Likewise, as a non-retained
expert, Dr. Bernadini is not required to include citations to scientific or medical literal to support
his opinions in his Narrative Expert Report.
9. When Plaintiffs disclosed their experts on July 11, 2023, Plaintiffs included citation to
Todd v. Bear Valley, requesting that Defendants promptly advise Plaintiffs of any objections to
the disclosure so that deficiencies could be corrected. Todd v. Bear Valley, 980 P2d 973 (Colo.
1999). Defendant did not object to Plaintiffs’ disclosures after July 11, 2023, and did not raise
any objections or limitations of Plaintiffs’ non-retained treating providers’ testimony until now.
10. Defendant Mucciante relies on C.R.C.P. 26(a)(2)(B)(II) as the basis to exclude opinions
that are in Plaintiffs’ medical records. Exclusion is warranted when a party “without substantial
justification fails to disclose information required by C.R.C.P. Rules 26(a) or 26(e).” The
extreme sanction of exclusion is “only authorized when the party is not justified and failure to
disclose is not harmless to the opposing party.” Trattler v. Citron, 182 P. 3d 674, 680 (Colo.
2008).
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11. Plaintiffs complied with the requirements of C.R.C.P. 26(a)(2)(B)(II) and provided a
description of their treating providers’ opinions and the basis for the same. Plaintiff Moon also
disclosed a Narrative Expert Report from Dr. Bernardini. Defendant Mucciante has had
Plaintiffs’ Expert Disclosures including Dr. Bernadini’s Narrative Expert Report since July 11,
2023 and Plaintiffs’ medical records for treatment since March 13, 2022. Plaintiffs’ treating
providers’ opinions regarding causation, prognosis and permanency, and billing are contained
within their medical records. See Exhibit 1 and Exhibit 2; see also Plaintiffs’ Initial
Disclosures and all Supplements.
12. As stated supra, Plaintiffs timely filed their Expert Disclosures in compliance with Rule
26(a)(2)(B)(II). This satisfied the very rules relied upon by Defendant Mucciante. Plaintiffs’
disclosure of their treating providers as non-retained experts was timely, proper, and actually
included more information than is required by C.R.C.P. 26(a)(2)(B)(II). Defendant Mucciante
will not be unfairly prejudiced by the testimony of Plaintiffs’ treating providers including Dr.
Bernadini, all of whom were properly disclosed as non-retained experts. Plaintiffs would be
highly prejudiced by excluding Plaintiffs’ treating providers’ testimony at trial. Plaintiffs should
not be punished for making disclosures that comply with Rule 26 by excluding those same
disclosures.
B. PLAINTIFFS COMPLIED WITH THE PROCEDURAL EXPERT DISCLOSURE
REQUIREMENTS OF C.R.C.P. 26(a)(2)(B)(II).
13. With the exception of Dr. Jonathan Bernardini, M.D., Plaintiffs treating medical
providers did not provide expert reports to the Plaintiffs; therefore, Plaintiffs disclosed a
summary of Plaintiffs’ treating providers’ expert opinions on July 11, 2023, by serving
Plaintiff’s Initial Expert Disclosures on the Defendants.
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11. The Court, pursuant to C.R.C.P. 16, established reasonable times for the disclosure of
expert opinions as set forth in its Case Management Order dated February 24, 2023 and Plaintiffs
complied with those deadlines. Defendant Mucciante also had the opportunity to serve rebuttal
expert disclosures by September 11, 2023. Defendant Mucciante chose not to designate any
expert; therefore, Defendant Mucciante did not serve Expert Disclosures. Defendant Mucciante
had the opportunity to take depositions and conduct discovery based upon the expert disclosures
until October 9, 2023 but chose not to do so.
12. C.R.C.P. 16 requires designation of all expert witnesses and a description of their
testimony at some reasonable time before trial. This is to prevent undue surprise and to give each
party the opportunity to prepare adequately for trial.” Freedman v. Kaiser Foundation Health
Plan of Colorado, 849 P.2d 811, 815 (Colo.App. 1992) (cert. denied).
13. Defendant Mucciante cannot now complain that she is surprised by the Plaintiffs’ Expert
Disclosures and therefore, that Plaintiffs have not properly disclosed their experts pursuant to
Rule 26(a)(2).
14. The prejudice, if any, suffered by Defendant Mucciante, is the result of her own “laying
in the weeds” strategy. Instead of deposing any or all of Plaintiffs’ Disclosed Experts or
otherwise conducting discovery regarding the expert disclosures, Defendant Mucciante has opted
to attempt to re-write Rule 26(a)(2)(B) to her liking, accuse the Plaintiffs of violating it, and then
limit the Plaintiffs’ experts’ testimony pursuant to a standard nowhere mentioned in C.R.C.P. 26
or in Colorado appellate cases: that non-retained experts can only testify to opinions contained in
their records. However, the plain language of Rule 26 negates Defendant Mucciante’s strategy
and argument. A non-retained expert can testify regarding any expert opinion that was
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disclosed in the summary (assuming that it is reliable, helpful, and non-prejudicial under CRE
703).
C. PLAINTIFFS COMPLIED WITH THE SUBSTANTIVE EXPERT
DISCLOSURE REQUIREMENTS OF C.R.C.P. 26(a)(2)(B)(II).
15. Plaintiffs timely served Defendant Mucciante with Plaintiffs’ Initial Expert Witness
Disclosures on July 11, 2023. See Exhibit 1, Plaintiff’s Expert Disclosures.
16. Plaintiffs’ Expert Disclosures contained the qualifications of the expert and a complete
statement describing the substance of all opinions to be expressed and the bases and reasons
therefore in compliance with C.R.C.P. 26(a)(2)(B)(II).
18. Defendant Mucciante is operating under the mistaken belief that the Plaintiffs are
prohibited from disclosing expert opinions that are not contained within the Plaintiffs’ medical
records. Such a requirement is not contained within C.R.C.P. 26(a)(2)(B)(II). Such a requirement
is not contained within any Colorado appellate court decision or within any Federal appellate
court decision.
19. Plaintiffs have conducted an exhaustive search of Colorado appellate authority and have
not found any case holding that a treating physician is required to be treated as a retained expert
if the physician renders an opinion as to causation, permanency, prognosis, and future treatment
if the physician renders an opinion regarding the medical treatment provided by another
physician.
20. Plaintiffs have conducted an exhaustive search of Colorado appellate authority and have
not found any case holding that a treating physician is limited to testifying only to what is
contained within the medical records. Defendant Mucciante’s characterization of Plaintiffs’
treating providers’ opinions as “threshold of injury” opinions are misplaced. As Plaintiffs’
treating providers, they are able to obtain a history from Plaintiffs regarding the circumstances of
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the accident, the nature of the Plaintiffs’ complaints, a past medical history, in the course of their
examination and treatment of the Plaintiffs. Plaintiffs’ treating providers have the most relevant
information about the causation and extent of Plaintiffs’ injuries, which is unlikely to confuse or
mislead the jury. A jury will be better able to understand Plaintiffs’ damages because Plaintiffs’
treating providers’ testimony which should not be limited.
21. Plaintiffs attach two District Court Orders denying similar motions to strike or limit the
testimony of non-retained treating providers. Exhibit 3 is a copy of a District Court order
denying a motion to strike or limit the testimony of Drs. Gillet and Schultz, as persuasive
authority. The doctors’ opinions were disclosed pursuant to the Subpart (B)(II) non-retained
expert disclosure requirements. The Defendant sought to strike their testimony for non-
compliance with the Subpart (B)(I) retained expert disclosure requirements. Alternatively, the
Defendant sought to limit the doctors’ testimony to the four corners of their treatment records.
The trial court found that the doctors were treating physician non-retained experts subject to the
expert disclosure requirements of Subpart (B)(II), that their disclosures complied with Subpart
(B)(II), that there was no basis to strike their testimony, and that there was no basis to limit their
testimony to the four corners of their medical records. Similarly, Exhibit 4 is a copy of a District
Court Order denying a Motion in Limine to limit the testimony of Drs. Pinero and Ross and
Nurse Practitioner Meier to what is in their records. The trial court found that Drs. Pintero and
Ross and Nurse Practition Meier were timely and properly disclosed pursuant to Subpart (B)(II)
non-retained expert disclosure requirements, that their disclosures complied with Subpart (B)(II),
that there was no basis to strike their testimony, and that there was no basis to limit their
testimony to the four corners of their medical records. The trial court relied upon Scholl v.
Peteder, 09 CV 2959-PAB-KLM, 2011, WL 2473284 (D.Colo. June 20, 2011) in support of its
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opinion that allows a treating physician to opine as to causation if it is a necessary part of
treatment. Three is sufficient information and detail in these District Court Orders to be relevant
and persuasive regarding the subject issue.
D. FEDERAL AUTHORITY NEGATES THE DEFENDANT’S POSITION.
22. The majority of the federal District Courts have held that generally an expert report is not
required if the treating physician’s testimony about causation and prognosis is based on personal
knowledge and on observations obtained during the course of care and treatment, and the
physician was not specially retained in connection with the litigation or for trial. Garcia v. City
of Springfield Police Dept., 230 F.R.D. 247, 249 (D. Mass. 2005).
23. The majority of …courts in the country have concluded that Rule 26(a)(2)(B) reports are
not required as a prerequisite to a treating physician expressing opinions as to causation,
diagnosis, prognosis, and extent of disability where they are based on treatment.” Sprague v.
Liberty Mut. Ins. Co., 177 F.R.D. 78, 80 (D.N.H. 1998).
24. If a report is not required, then the treating physician’s expert opinions are to be set forth
in a summary pursuant to F.R.C.P. 26(a)(2)(C) – the federal analogue to C.R.C.P.
26(a)(2)(B)(II).
25. A treating physician’s expert testimony is not necessarily confined to only what is
contained in the medical records. See Fielden v. CSX Transportation, 482 F.3d 866 6th Cir.
2007); Martin v. CSX Transportation, 215 F.R.D. 554 (S.D. Ind. 2003); Shapardon v. West
Beach Estates, 172 F.R.D. 415 (D. Hawaii 1997).
26. Treating physicians may testify as to diagnosis, prognosis, causation, and standard of
care as long as the opinions stem from treatment or are based upon the physician’s
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observations during the course of treatment. Washington v. Arapahoe County Dept. of Soc.
Services, 197 F.R.D. 439, 442.
E. PLAINTIFFS WERE NOT REQUIRED TO COMPLY WITH THE
RETAINED EXPERT DISCLOSURE REQUIREMENTS OF C.R.C.P. 26
(a)(2)(B)(I) AS TO HER TREATING PHYSICIAN EXPERT.
27. Plaintiffs’ treating providers were not retained or specially employed as professional
witnesses for the purpose of testifying at trial; therefore, the retained expert disclosure
requirements of C.R.C.P. 26(a)(2)(B)(I) simply do not apply. Thus, Plaintiffs were not required
to disclose testimony lists, publication lists, or other Subpart (B)(I) requirements.
F. UNDER THE DEFENSE THEORY, THERE WOULD BE NO NEED FOR THE
INTERPROFESSIONAL CODE
28. The Interprofessional Code creates a professional obligation which requires Plaintiffs’
counsel to communicate with treating physicians. The Interprofessional Code imposes various
professional duties upon both attorneys and physicians in the context of litigation. Those duties
and considerations are set forth in the Interprofessional Code, 3rd edition, drafted by the
interprofessional committee of The Colorado Bar Association, The Denver Bar Association, The
Colorado Medical Society and The Denver Medical Society. See
http://www.cobar.org/Portals/COBAR/repository/InterprofessionalCodeGuidelines.PDF. The
Interprofessional Code contemplates that “[a] witness may become an "expert witness" who is
called to testify as to certain facts within his or her knowledge and give "expert opinions" on
certain complex factual issues. For example, a treating or examining physician may be called
as an expert witness to testify concerning the examination, care, and treatment of a party and
may be requested to give opinions on such issues as diagnosis, causation, prognosis,
permanency, disability, need for future treatment, and reasonableness of costs of past or
future treatment.” See Id., p. 7. The title of certain sections of the Interprofessional Code are
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revealing and relevant to this issue. For example, § 4.9 is styled “[t]reating physicians are
expected to, and professionally obligated to, have opinions regarding injury causation.” Another
example is § 6.2 which is titled “[p]laintiff's counsel has duty to confer with treating physician
….” If all treating physicians who offered opinions on causation were considered specially
retained, no code would be necessary; it would be a nullity. If every treating physician is duty
bound to speak with attorneys regarding causation, then every time he discharges that duty, that
treating physician would, unintentionally and inadvertently, become a specially retained witness.
It is inaccurate to describe that dual-partied relationship as between “one who retained” and
another who “became retained.”
G. AUTHORITY EXISTS TO ALLOW A TREATING PHYSICIAN TO OFFER
MEDICAL OPINIONS REGARDING CAUSATION AND PROGNOSIS
29. A treating physician may offer testimony about causation and prognosis as it would be
based upon knowledge acquired by his treatment of the patient. Washington v Arapahoe County,
197 F.R.D. 439, 441,2 (D.Colo.2000) (a treating physician can testify on injuries, causation and
prognosis without being endorsed as an expert under Rule 26(a)(2)(B)(I)).
CONCLUSION
In conclusion, Defendant Mucciante will not be unfairly prejudiced by the testimony of
Plaintiffs’ treating providers. Defendant Mucciante had the opportunity to disclose experts
and/or depose any of Plaintiffs’ treating providers, but chose not to do either. Furthermore,
Plaintiffs’ treating providers have been timely and properly disclosed to Defendants pursuant to
Rule 26(a)(2)(B)(II)).
Failure to allow Plaintiffs’ treating providers to testify about their treatment of Plaintiffs
would be highly prejudicial to Plaintiffs. The causation and extent of Plaintiffs’ injuries are two
of the issues to be tried in this case, and Plaintiffs’ treating providers have the most relevant
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information about these issues. For the jury to get a full picture of Plaintiffs’ damages, Plaintiffs’
treating providers must be allowed to testify and their testimony should not be limited.
WHEREFORE, based upon the facts, legal authority, and argument herein, Plaintiffs
respectfully request that Defendant Mucciante’s Motion in Limine regarding the Testimony of
Plaintiffs’ Treating Medical Providers be DENIED, and for such other relief the Court finds fair
and equitable.
Respectfully submitted this 6th day of November 2023.
GALPERIN AND ASSOCIATES
Original Signature on File at the Offices
Of Galperin and Associates, PC
By: /s/ Emily Somervill
Jake Galperin, Esq., #45625
Emily Somervill, Esq., #49748
3773 Cherry Creek N. Drive, Ste. 701E
Denver, Colorado 80209
Tel: 720-501-3451
Fax: 720-533-6222
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served electronically
via ICCES on the 6th day of November 2023 to the following:
Karl A. Chambers, #17754
Patterson Ripplinger, P.C.
5613 DTC Parkway, Suite 400
Greenwood Village, CO 80111
Attorneys for Defendant Mucciante
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Bradley Ross-Shannon, #15220
Patrick D. Delaney, #46604
Ross-Shannon & Delaney, P.C. 300 Union Blvd.,
Suite 415 Lakewood, CO 80228
Attorneys for Defendant Ronald W. Servis as Special Administrator Of
the Estate of Paul Shelton
Original Signature on File at the Offices of Galperin &
Associates, PC
/s/ Kent Hernandez-Pedroza
Kent Hernandez-Pedroza
Litigation Paralegal
This pleading was filed with the Court through the ICCES Electronic Filing Procedures, under C.R.C.P. 121, § 1-26. As
required by those rules, the original signed copy of this pleading is on file with Galperin & Associates, PC
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DISTRICT COURT, JEFFERSON COUNTY, COLORADO Court Address: 100 Jefferson County Parkway Golden, CO 80401 DATE FILED: November 6, 2023 5:36 PM _________________________________________ FILING ID: F4C9E8A53A4A5 Plaintiffs: CASE NUMBER: 2023CV30003 NATALIA MOON, ELLA AKIMOV AND DAMIAN PETRENKO v. Defendants: ▲ COURT USE ONLY ▲ RONALD W. SERVIS AS SPECIAL ADMINISTRATOR OF THE ESTATE OF PAUL SHELTON AND APRIL MUCCIANTE Case Number: 2023CV30003 _________________________________________ GALPERIN AND ASSOCIATES Jacob Galperin, #45625 Div.: 4 Emily Somervill, #49748 3773 Cherry Creek North Drive, Ste. 701E Denver, Colorado 80209 Telephone: (720) 501-3451 Fax Number: (720) 533-6222 E-mail: jg@galperinlegal.com es@galperinlegal.com PLAINTIFFS’ RESPONSE TO DEFENDANT MUCCIANTE’S MOTION TO LIMIT THE EXPERT TESTIMONY OF TREATING PROVIDERS FROM TESTIFYING TO OR RENDERING OPINIONS NOT CONTAINED IN THEIR TREATMENT RECORDS COME NOW Plaintiffs, by and through undersigned counsel, and submit Plaintiffs’ Response to Defendant Mucciante’s Motion to Limit the Expert Testimony of Plaintiffs’ Treating Providers from Testifying to or Rendering Opinions Not Contained in Their Treatment Records pursuant to C.R.C.P. 26(a)(2), and state as follows: I. Relevant Background 1. On January 3, 2021, Plaintiffs filed the instant Complaint seeking damages for personal injuries arising from a motor vehicle collision that occurred on October 7, 2021. 2. On July 26, 2021, Plaintiffs amended their Complaint to identify Defendant Ronald W. Servis as Special Administrator of the Estate of Paul Shelton. 3. Plaintiffs timely disclosed their treating providers on July 7, 2022. A description of Plaintiffs’ treating providers’ opinions was timely and properly disclosed pursuant to C.R.C.P. 26(a)(2). See Exhibit 1, Plaintiffs’ Expert Disclosures. 4. Plaintiffs also disclosed a narrative expert report from Plaintiff Moon’s treating provider, Dr. Jonathan Bernardini, M.D., along with his Curriculum Vitae (hereinafter “CV”) and Fee Schedule on July 7, 2022. Id. See also, Exhibit 2, Dr. Bernardini’s Narrative Expert Report. 5. Plaintiffs’ treating providers were timely and properly disclosed pursuant to C.R.C.P. 26(a)(2). See Exhibit 1, Plaintiffs’ Expert Disclosures. 6. A description of Plaintiffs’ treating providers’ opinions were timely and properly disclosed pursuant to C.R.C.P. 26(a)(2). Id. 7. All of Plaintiffs’ medical records were disclosed with Plaintiffs’ Initial Disclosures and Supplemental Disclosures. 8. All medical records which formed the basis of Dr. Bernadini’s Narrative Expert Report were disclosed with Plaintiffs’ Initial Disclosures and Supplemental Disclosures as Plaintiff Moon underwent medical treatment given her extensive injuries caused by the subject motor vehicle collision. A. PLAINTIFFS’ TREATING PHYSICIANS ARE “NON-RETAINED EXPERTS” PURSUANT TO C.R.C.P. 26(a)(2)(B)(II). Page 2 of 13 1. Rule 26(a)(2)(A) states that a party shall disclose the identity of any expert who may testify at trial along with their field of expertise. 2. Rule 26(a)(2)(B) distinguishes between two different types of experts and sets forth the different disclosure requirement for each of the two types. 3. Rule 26(a)(2)(B)(I) applies to experts who were retained or specially employed to testify at trial (hereinafter “retained experts”). 4. Rule 26(a)(2)(B)(II) applies to experts who were not retained or specially employed to testify at trial, but who became involved in the case due to their occupational or other duties; e.g., police officers or treating physicians (hereinafter “non-retained experts”). 5. Subpart (B)(I) requires the disclosure of the following matters regarding retained experts: a. report or summary containing a complete statement of all opinions to be expressed and the basis and reasons therefore; b. the data or other information considered by the witness in forming the opinions; c. any exhibits to be used as a summary of or support for the opinions; d. the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; e. the compensation for the study and the testimony; f. and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. 6. Subpart B(II) requires the disclosure of the following matters regarding non-retained experts: a. a report or summary containing the qualifications of the witness; b. a report or summary containing a complete statement describing the substance of all opinions to be expressed and the basis and reasons therefore. 7. Plaintiffs were injured in an automobile accident on October 7, 2021. In connection with their injuries they sustained as a result of this accident, Plaintiffs were examined and treated by their treating providers identified in Plaintiffs’ Expert Disclosures. See Exhibit 1, Plaintiffs’ Page 3 of 13 Expert Disclosures. Plaintiffs did not retain or specially employ any of Plaintiffs’ treating providers as professional witnesses for the purpose of testifying at trial. Plaintiffs chose to designate their treating providers as experts because their treating providers were already occupationally involved in their medical care. Thus, Plaintiffs’ treating providers are not “retained experts”; they are “non-retained experts.” Consequently, the expert disclosure requirements applicable to Plaintiffs’ non-retained treating providers are controlled by Subpart (B)(II). 8. Given that Plaintiffs’ treating providers are non-retained experts, as per the rule, a written description of their opinions, qualifications and medical records are not required to contain citations to scientific or medical literature to support their opinions. Likewise, as a non-retained expert, Dr. Bernadini is not required to include citations to scientific or medical literal to support his opinions in his Narrative Expert Report. 9. When Plaintiffs disclosed their experts on July 11, 2023, Plaintiffs included citation to Todd v. Bear Valley, requesting that Defendants promptly advise Plaintiffs of any objections to the disclosure so that deficiencies could be corrected. Todd v. Bear Valley, 980 P2d 973 (Colo. 1999). Defendant did not object to Plaintiffs’ disclosures after July 11, 2023, and did not raise any objections or limitations of Plaintiffs’ non-retained treating providers’ testimony until now. 10. Defendant Mucciante relies on C.R.C.P. 26(a)(2)(B)(II) as the basis to exclude opinions that are in Plaintiffs’ medical records. Exclusion is warranted when a party “without substantial justification fails to disclose information required by C.R.C.P. Rules 26(a) or 26(e).” The extreme sanction of exclusion is “only authorized when the party is not justified and failure to disclose is not harmless to the opposing party.” Trattler v. Citron, 182 P. 3d 674, 680 (Colo. 2008). Page 4 of 13 11. Plaintiffs complied with the requirements of C.R.C.P. 26(a)(2)(B)(II) and provided a description of their treating providers’ opinions and the basis for the same. Plaintiff Moon also disclosed a Narrative Expert Report from Dr. Bernardini. Defendant Mucciante has had Plaintiffs’ Expert Disclosures including Dr. Bernadini’s Narrative Expert Report since July 11, 2023 and Plaintiffs’ medical records for treatment since March 13, 2022. Plaintiffs’ treating providers’ opinions regarding causation, prognosis and permanency, and billing are contained within their medical records. See Exhibit 1 and Exhibit 2; see also Plaintiffs’ Initial Disclosures and all Supplements. 12. As stated supra, Plaintiffs timely filed their Expert Disclosures in compliance with Rule 26(a)(2)(B)(II). This satisfied the very rules relied upon by Defendant Mucciante. Plaintiffs’ disclosure of their treating providers as non-retained experts was timely, proper, and actually included more information than is required by C.R.C.P. 26(a)(2)(B)(II). Defendant Mucciante will not be unfairly prejudiced by the testimony of Plaintiffs’ treating providers including Dr. Bernadini, all of whom were properly disclosed as non-retained experts. Plaintiffs would be highly prejudiced by excluding Plaintiffs’ treating providers’ testimony at trial. Plaintiffs should not be punished for making disclosures that comply with Rule 26 by excluding those same disclosures. B. PLAINTIFFS COMPLIED WITH THE PROCEDURAL EXPERT DISCLOSURE REQUIREMENTS OF C.R.C.P. 26(a)(2)(B)(II). 13. With the exception of Dr. Jonathan Bernardini, M.D., Plaintiffs treating medical providers did not provide expert reports to the Plaintiffs; therefore, Plaintiffs disclosed a summary of Plaintiffs’ treating providers’ expert opinions on July 11, 2023, by serving Plaintiff’s Initial Expert Disclosures on the Defendants. Page 5 of 13 11. The Court, pursuant to C.R.C.P. 16, established reasonable times for the disclosure of expert opinions as set forth in its Case Management Order dated February 24, 2023 and Plaintiffs complied with those deadlines. Defendant Mucciante also had the opportunity to serve rebuttal expert disclosures by September 11, 2023. Defendant Mucciante chose not to designate any expert; therefore, Defendant Mucciante did not serve Expert Disclosures. Defendant Mucciante had the opportunity to take depositions and conduct discovery based upon the expert disclosures until October 9, 2023 but chose not to do so. 12. C.R.C.P. 16 requires designation of all expert witnesses and a description of their testimony at some reasonable time before trial. This is to prevent undue surprise and to give each party the opportunity to prepare adequately for trial.” Freedman v. Kaiser Foundation Health Plan of Colorado, 849 P.2d 811, 815 (Colo.App. 1992) (cert. denied). 13. Defendant Mucciante cannot now complain that she is surprised by the Plaintiffs’ Expert Disclosures and therefore, that Plaintiffs have not properly disclosed their experts pursuant to Rule 26(a)(2). 14. The prejudice, if any, suffered by Defendant Mucciante, is the result of her own “laying in the weeds” strategy. Instead of deposing any or all of Plaintiffs’ Disclosed Experts or otherwise conducting discovery regarding the expert disclosures, Defendant Mucciante has opted to attempt to re-write Rule 26(a)(2)(B) to her liking, accuse the Plaintiffs of violating it, and then limit the Plaintiffs’ experts’ testimony pursuant to a standard nowhere mentioned in C.R.C.P. 26 or in Colorado appellate cases: that non-retained experts can only testify to opinions contained in their records. However, the plain language of Rule 26 negates Defendant Mucciante’s strategy and argument. A non-retained expert can testify regarding any expert opinion that was Page 6 of 13 disclosed in the summary (assuming that it is reliable, helpful, and non-prejudicial under CRE 703). C. PLAINTIFFS COMPLIED WITH THE SUBSTANTIVE EXPERT DISCLOSURE REQUIREMENTS OF C.R.C.P. 26(a)(2)(B)(II). 15. Plaintiffs timely served Defendant Mucciante with Plaintiffs’ Initial Expert Witness Disclosures on July 11, 2023. See Exhibit 1, Plaintiff’s Expert Disclosures. 16. Plaintiffs’ Expert Disclosures contained the qualifications of the expert and a complete statement describing the substance of all opinions to be expressed and the bases and reasons therefore in compliance with C.R.C.P. 26(a)(2)(B)(II). 18. Defendant Mucciante is operating under the mistaken belief that the Plaintiffs are prohibited from disclosing expert opinions that are not contained within the Plaintiffs’ medical records. Such a requirement is not contained within C.R.C.P. 26(a)(2)(B)(II). Such a requirement is not contained within any Colorado appellate court decision or within any Federal appellate court decision. 19. Plaintiffs have conducted an exhaustive search of Colorado appellate authority and have not found any case holding that a treating physician is required to be treated as a retained expert if the physician renders an opinion as to causation, permanency, prognosis, and future treatment if the physician renders an opinion regarding the medical treatment provided by another physician. 20. Plaintiffs have conducted an exhaustive search of Colorado appellate authority and have not found any case holding that a treating physician is limited to testifying only to what is contained within the medical records. Defendant Mucciante’s characterization of Plaintiffs’ treating providers’ opinions as “threshold of injury” opinions are misplaced. As Plaintiffs’ treating providers, they are able to obtain a history from Plaintiffs regarding the circumstances of Page 7 of 13 the accident, the nature of the Plaintiffs’ complaints, a past medical history, in the course of their examination and treatment of the Plaintiffs. Plaintiffs’ treating providers have the most relevant information about the causation and extent of Plaintiffs’ injuries, which is unlikely to confuse or mislead the jury. A jury will be better able to understand Plaintiffs’ damages because Plaintiffs’ treating providers’ testimony which should not be limited. 21. Plaintiffs attach two District Court Orders denying similar motions to strike or limit the testimony of non-retained treating providers. Exhibit 3 is a copy of a District Court order denying a motion to strike or limit the testimony of Drs. Gillet and Schultz, as persuasive authority. The doctors’ opinions were disclosed pursuant to the Subpart (B)(II) non-retained expert disclosure requirements. The Defendant sought to strike their testimony for non- compliance with the Subpart (B)(I) retained expert disclosure requirements. Alternatively, the Defendant sought to limit the doctors’ testimony to the four corners of their treatment records. The trial court found that the doctors were treating physician non-retained experts subject to the expert disclosure requirements of Subpart (B)(II), that their disclosures complied with Subpart (B)(II), that there was no basis to strike their testimony, and that there was no basis to limit their testimony to the four corners of their medical records. Similarly, Exhibit 4 is a copy of a District Court Order denying a Motion in Limine to limit the testimony of Drs. Pinero and Ross and Nurse Practitioner Meier to what is in their records. The trial court found that Drs. Pintero and Ross and Nurse Practition Meier were timely and properly disclosed pursuant to Subpart (B)(II) non-retained expert disclosure requirements, that their disclosures complied with Subpart (B)(II), that there was no basis to strike their testimony, and that there was no basis to limit their testimony to the four corners of their medical records. The trial court relied upon Scholl v. Peteder, 09 CV 2959-PAB-KLM, 2011, WL 2473284 (D.Colo. June 20, 2011) in support of its Page 8 of 13 opinion that allows a treating physician to opine as to causation if it is a necessary part of treatment. Three is sufficient information and detail in these District Court Orders to be relevant and persuasive regarding the subject issue. D. FEDERAL AUTHORITY NEGATES THE DEFENDANT’S POSITION. 22. The majority of the federal District Courts have held that generally an expert report is not required if the treating physician’s testimony about causation and prognosis is based on personal knowledge and on observations obtained during the course of care and treatment, and the physician was not specially retained in connection with the litigation or for trial. Garcia v. City of Springfield Police Dept., 230 F.R.D. 247, 249 (D. Mass. 2005). 23. The majority of …courts in the country have concluded that Rule 26(a)(2)(B) reports are not required as a prerequisite to a treating physician expressing opinions as to causation, diagnosis, prognosis, and extent of disability where they are based on treatment.” Sprague v. Liberty Mut. Ins. Co., 177 F.R.D. 78, 80 (D.N.H. 1998). 24. If a report is not required, then the treating physician’s expert opinions are to be set forth in a summary pursuant to F.R.C.P. 26(a)(2)(C) – the federal analogue to C.R.C.P. 26(a)(2)(B)(II). 25. A treating physician’s expert testimony is not necessarily confined to only what is contained in the medical records. See Fielden v. CSX Transportation, 482 F.3d 866 6th Cir. 2007); Martin v. CSX Transportation, 215 F.R.D. 554 (S.D. Ind. 2003); Shapardon v. West Beach Estates, 172 F.R.D. 415 (D. Hawaii 1997). 26. Treating physicians may testify as to diagnosis, prognosis, causation, and standard of care as long as the opinions stem from treatment or are based upon the physician’s Page 9 of 13 observations during the course of treatment. Washington v. Arapahoe County Dept. of Soc. Services, 197 F.R.D. 439, 442. E. PLAINTIFFS WERE NOT REQUIRED TO COMPLY WITH THE RETAINED EXPERT DISCLOSURE REQUIREMENTS OF C.R.C.P. 26 (a)(2)(B)(I) AS TO HER TREATING PHYSICIAN EXPERT. 27. Plaintiffs’ treating providers were not retained or specially employed as professional witnesses for the purpose of testifying at trial; therefore, the retained expert disclosure requirements of C.R.C.P. 26(a)(2)(B)(I) simply do not apply. Thus, Plaintiffs were not required to disclose testimony lists, publication lists, or other Subpart (B)(I) requirements. F. UNDER THE DEFENSE THEORY, THERE WOULD BE NO NEED FOR THE INTERPROFESSIONAL CODE 28. The Interprofessional Code creates a professional obligation which requires Plaintiffs’ counsel to communicate with treating physicians. The Interprofessional Code imposes various professional duties upon both attorneys and physicians in the context of litigation. Those duties and considerations are set forth in the Interprofessional Code, 3rd edition, drafted by the interprofessional committee of The Colorado Bar Association, The Denver Bar Association, The Colorado Medical Society and The Denver Medical Society. See http://www.cobar.org/Portals/COBAR/repository/InterprofessionalCodeGuidelines.PDF. The Interprofessional Code contemplates that “[a] witness may become an "expert witness" who is called to testify as to certain facts within his or her knowledge and give "expert opinions" on certain complex factual issues. For example, a treating or examining physician may be called as an expert witness to testify concerning the examination, care, and treatment of a party and may be requested to give opinions on such issues as diagnosis, causation, prognosis, permanency, disability, need for future treatment, and reasonableness of costs of past or future treatment.” See Id., p. 7. The title of certain sections of the Interprofessional Code are Page 10 of 13 revealing and relevant to this issue. For example, § 4.9 is styled “[t]reating physicians are expected to, and professionally obligated to, have opinions regarding injury causation.” Another example is § 6.2 which is titled “[p]laintiff's counsel has duty to confer with treating physician ….” If all treating physicians who offered opinions on causation were considered specially retained, no code would be necessary; it would be a nullity. If every treating physician is duty bound to speak with attorneys regarding causation, then every time he discharges that duty, that treating physician would, unintentionally and inadvertently, become a specially retained witness. It is inaccurate to describe that dual-partied relationship as between “one who retained” and another who “became retained.” G. AUTHORITY EXISTS TO ALLOW A TREATING PHYSICIAN TO OFFER MEDICAL OPINIONS REGARDING CAUSATION AND PROGNOSIS 29. A treating physician may offer testimony about causation and prognosis as it would be based upon knowledge acquired by his treatment of the patient. Washington v Arapahoe County, 197 F.R.D. 439, 441,2 (D.Colo.2000) (a treating physician can testify on injuries, causation and prognosis without being endorsed as an expert under Rule 26(a)(2)(B)(I)). CONCLUSION In conclusion, Defendant Mucciante will not be unfairly prejudiced by the testimony of Plaintiffs’ treating providers. Defendant Mucciante had the opportunity to disclose experts and/or depose any of Plaintiffs’ treating providers, but chose not to do either. Furthermore, Plaintiffs’ treating providers have been timely and properly disclosed to Defendants pursuant to Rule 26(a)(2)(B)(II)). Failure to allow Plaintiffs’ treating providers to testify about their treatment of Plaintiffs would be highly prejudicial to Plaintiffs. The causation and extent of Plaintiffs’ injuries are two of the issues to be tried in this case, and Plaintiffs’ treating providers have the most relevant Page 11 of 13 information about these issues. For the jury to get a full picture of Plaintiffs’ damages, Plaintiffs’ treating providers must be allowed to testify and their testimony should not be limited. WHEREFORE, based upon the facts, legal authority, and argument herein, Plaintiffs respectfully request that Defendant Mucciante’s Motion in Limine regarding the Testimony of Plaintiffs’ Treating Medical Providers be DENIED, and for such other relief the Court finds fair and equitable. Respectfully submitted this 6th day of November 2023. GALPERIN AND ASSOCIATES Original Signature on File at the Offices Of Galperin and Associates, PC By: /s/ Emily Somervill Jake Galperin, Esq., #45625 Emily Somervill, Esq., #49748 3773 Cherry Creek N. Drive, Ste. 701E Denver, Colorado 80209 Tel: 720-501-3451 Fax: 720-533-6222 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served electronically via ICCES on the 6th day of November 2023 to the following: Karl A. Chambers, #17754 Patterson Ripplinger, P.C. 5613 DTC Parkway, Suite 400 Greenwood Village, CO 80111 Attorneys for Defendant Mucciante Page 12 of 13 Bradley Ross-Shannon, #15220 Patrick D. Delaney, #46604 Ross-Shannon & Delaney, P.C. 300 Union Blvd., Suite 415 Lakewood, CO 80228 Attorneys for Defendant Ronald W. Servis as Special Administrator Of the Estate of Paul Shelton Original Signature on File at the Offices of Galperin & Associates, PC /s/ Kent Hernandez-Pedroza Kent Hernandez-Pedroza Litigation Paralegal This pleading was filed with the Court through the ICCES Electronic Filing Procedures, under C.R.C.P. 121, § 1-26. As required by those rules, the original signed copy of this pleading is on file with Galperin & Associates, PC Page 13 of 13