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DATE FILED: October 23, 2023 5:09 PM
DISTRICT COURT, JEFFERSON COUNTY, FILING ID: 40EF098521401
COLORADO CASE NUMBER: 2023CV30003
Court Address: Jefferson Combined Court
100 Jefferson County Parkway
Golden, Colorado 80401
Plaintiff(s): NATALIA MOON, ELLA AKIMOV,
AND DAMIAN PETRENKO
COURT USE ONLY
v.
Defendant(s): RONALD W. SERVIS AS Case Number: 2023 CV 030003
SPECIAL ADMINISTRATOR OF THE ESTATE
OF PAUL SHELTON AND APRIL MUCCIANTE Courtroom/Division: 4
Attorneys for Defendant April Mucciante:
Karl A. Chambers, No. 17754
Patterson Ripplinger, P.C.
5613 DTC Parkway, Suite 400
Greenwood Village, Colorado 80111
Telephone: 303/741-4539
Facsimile: 303/741-5043
E-mail: kchambers@prpclegal.com
DEFENDANT MUCCIANTE’S MOTION IN LIMINE RE: TESTIMONY OF
PLAINTIFFS’ TREATING MEDICAL PROVIDERS
DEFENDANT, April Mucciante (“Mucciante”), by and through her attorneys, Patterson
Ripplinger, P.C., submits the following Motion in Limine Re: Testimony of Plaintiff’s Treating
Medical Providers. In support, Defendant Mucciante provides as follows:
CONFERRAL
Defendant Mucciante’s counsel certifies that in accordance with C.R.C.P. 121, Section 1-
15(8), he conferred with Plaintiff’s counsel prior to filing this Motion and Plaintiff opposes the
relief requested herein.
INTRODUCTION
1. This lawsuit arises out of a motor vehicle accident occurring on August 9, 2017.
As a result of the accident, Plaintiffs allege various different injuries. Plaintiffs have disclosed
several of their treating health care providers as expert witnesses in this case.
2. With this Motion, Defendant Mucciante requests the opinions of Plaintiffs’ non-
retained treating providers be limited to the opinions in their medical records. As a result, they
should be precluded from offering expert opinion testimony regarding, among other things,
causation, impairment, the need for future treatment, and the reasonableness, necessity, or
relatedness of treatment and costs, whether provided by themselves or any other non-retained
expert.
ARGUMENT AND AUTHORITY
A. Plaintiffs’ treating providers cannot testify beyond the opinions included in their
treatment records.
3. The testimony of a treating provider who is not disclosed as a retained expert
witness must be limited to his own records, as set forth by rulings in Colorado’s state and federal
district courts. In Hulley v. Seifried, Douglas County District Court, Case No. 05 CV 2751, the
Court held that “[t]he expert testimony of Plaintiff’s treating physicians at trial is limited to
opinions clearly contained in medical records or expert reports provided to Defendant by the
1
The State of Colorado District Court orders referred herein are attached as Exhibit A.
2
expert disclosure deadline.” In addition, in State Farm Mutual Automobile Ins. Co., et al. v.
Werner, et al., Adams County District Court, Case No. 07 CV 1028, Judge Katherine R. Delgado
held that “Non retained experts should be limited to the opinions and information provided in
their medical records.” Similarly, in Salazar v. State Farm Mutual Auto. Ins. Co., et. al., Case
No. 10 CV 1088, Boulder District Court Judge Lisa D. Hamilton-Fieldman limited non-retained
expert testimony as follows:
[The expert] may not testify as to any opinion about the need for
surgery, and may testify only as to his treatment records that
Plaintiff had actually disclosed. The Court clarifies that [the
expert] may testify as a treating physician only, not as a hybrid
expert. The Court reminds the parties that if any treating physician
is designated to testify as to occupant kinematics, any form of
accident reconstruction, or causation issues not necessary to
treatment, as to that portion of his or her report and testimony, he
or she shall be treated as a ‘retained’ rather than a ‘treating’ expert
for purposes of disclosures and discovery.
4. Also, in Mann v. State Farm Mutual Automobile Ins. Co., Case No. 10 CV 90,
Boulder District Court Judge Lisa D. Hamilton-Fieldman explained the distinction between
retained and non-retained expert testimony (Exhibit B attached hereto):
[A non-retained expert] can extrapolate from their records but
causation is not something that’s necessary to treatment. When a --
when an individual presents and says here’s what’s happening, I
am having headaches, my back hurts, et cetera, et cetera, they don’t
need to say, okay, gee, let’s figure out why did that -- why is she
having backaches? Because she was in an accident in 2004…and
the answer is no, they don’t need to know that in order to treat
her…. They treat her. So if that’s it, if they are testifying as to
being a treating physician then they get to testify as to their
treatment which is in their records and what’s reasonably derived
from their records.
3
5. Case law in the United States District Court for the District of Colorado provides
the same conclusion. “One matter that is typically ‘not based on observations during the course
of [medical] treatment’ is the cause of a patient’s injuries.” Scholl v. Pateder, No. 09-cv-02959-
PAB-KLM, 2011 WL 2473284, at *4 (D.Colo. June 22, 2011) (emphasis added) (Exhibit C
attached hereto). Courts have recognized that in general, “when a treating physician opines as to
causation . . . [he] is going beyond what he saw and did and why he did it. He is going beyond
his personal involvement in the facts of the case and giving an opinion formed because there is a
lawsuit.” Id. (Citation omitted). Further, “[a] treating physician who has formulated opinions
going beyond what was necessary to provide appropriate care for the injured party steps into the
shoes of a retained expert for purposes of Rule 26(a)(2).” Harvey v. U.S., 2005 WL 3164236, *8
(D.Colo. Nov. 28, 2005). Finally, “when a treating physician's information or opinions were
developed for trial, or where their expert testimony will concern matters not based on
observations during the course of treatment, the treating physician will be required to prepare a
written report.” Harvey, 2005 WL 3164236, at *9; see also Carbaugh v. Home Depot U.S.A.,
Inc., 2014 WL 3543714, at *3 (D.Colo. July 16, 2014) (“[W]hen a witness forms an opinion
because there is a lawsuit, such as when he or she is asked to review the records of another health
care provider in order to formulate his or her own opinion on the appropriateness of care, the
witness is considered ‘retained or employed’ under Rule 26(a)(2)(B) and must file a written
report accordingly.”)
6. If Plaintiffs wished for their treating providers to testify on matters outside of
his/her treatment of Plaintiffs, Plaintiffs needed to designate them as a Rule 26(a)(2)(B)(I)
retained expert and provide all the disclosure material that goes therewith. See Probst v. Portland
4
Sys., LLC, No. 06 CV 2358, 2007 WL 4741335 (D.Colo. 2007) (Exhibit D attached hereto) (“a
treating physician need only provide a report if she intends to offer expert testimony about
matters not based on her observations during the course of providing treatment”); see also
Washington v. Arapahoe County Dep’t of Social Services, 197 F.R.D. 439 (D.Colo. 2000); Scholl
v. Pateder, No. 09-cv-02959-PAB-KLM, 2011 WL 2473284, at *3 (D.Colo. June 22, 2011)
(“[A] treating physician who has formulated opinions going beyond what was necessary to
provide appropriate care for the injured party steps into the shoes of a retained expert for the
purposes of Rule 26(a)(2)(B).”) Plaintiffs did not do this.
7. The mere fact that Plaintiffs elude to such testimony in their disclosure pleading
does not change the fact that such opinions are not contained within their records and were not
part of their treatment of the Plaintiffs. As such, Plaintiffs’ treating physicians should be
precluded from offering expert opinion testimony beyond opinions contained in their treatment
records.
CONCLUSION
8. For the reasons stated herein, Plaintiffs’ non-retained treating providers are
limited to the opinions contained in their treatment records and may not testify that “medical
costs from the care and treatment of Plaintiff…as reasonable and necessary expenses,” that the
“accident caused the actual injuries prescribed in the medical records and future needs and/or
additional treatment may be required”, to “opinions outside the confines of his medical records”,
or “render opinions concerning impairment and future costs”.
DATED this 23rd day of October, 2023.
Respectfully submitted,
5
PATTERSON RIPPLINGER, P.C.
s/ Karl A. Chambers
Karl A. Chambers, No. 17754
Attorneys for Defendant Mucciante
6
CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of October, 2023, a true and correct copy of the
above and foregoing DEFENDANT MUCCIANTE’S MOTION IN LIMINE RE:
TESTIMONY OF PLAINTIFFS’ TREATING MEDICAL PROVIDERS was served upon
the following via Colorado Courts E-Filing:
Jacob Galperin, Esq.
Emily Somervill, Esq.
Galperin and Associates
3773 Cherry Creek North Drive, Suite 701E
Denver, Colorado 80209
(Attorneys for Plaintiffs)
Bradley Ross-Shannon, Esq.
Patrick C. Delaney, Esq.
Ross-Shannon & Delaney, P.C.
300 Union Boulevard, Suite 415
Lakewood, Colorado 80228
(Attorneys for Defendant Shelton)
s/ Terri A. Taylor
Terri A. Taylor
7
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DATE FILED: October 23, 2023 5:09 PM DISTRICT COURT, JEFFERSON COUNTY, FILING ID: 40EF098521401 COLORADO CASE NUMBER: 2023CV30003 Court Address: Jefferson Combined Court 100 Jefferson County Parkway Golden, Colorado 80401 Plaintiff(s): NATALIA MOON, ELLA AKIMOV, AND DAMIAN PETRENKO COURT USE ONLY v. Defendant(s): RONALD W. SERVIS AS Case Number: 2023 CV 030003 SPECIAL ADMINISTRATOR OF THE ESTATE OF PAUL SHELTON AND APRIL MUCCIANTE Courtroom/Division: 4 Attorneys for Defendant April Mucciante: Karl A. Chambers, No. 17754 Patterson Ripplinger, P.C. 5613 DTC Parkway, Suite 400 Greenwood Village, Colorado 80111 Telephone: 303/741-4539 Facsimile: 303/741-5043 E-mail: kchambers@prpclegal.com DEFENDANT MUCCIANTE’S MOTION IN LIMINE RE: TESTIMONY OF PLAINTIFFS’ TREATING MEDICAL PROVIDERS DEFENDANT, April Mucciante (“Mucciante”), by and through her attorneys, Patterson Ripplinger, P.C., submits the following Motion in Limine Re: Testimony of Plaintiff’s Treating Medical Providers. In support, Defendant Mucciante provides as follows: CONFERRAL Defendant Mucciante’s counsel certifies that in accordance with C.R.C.P. 121, Section 1- 15(8), he conferred with Plaintiff’s counsel prior to filing this Motion and Plaintiff opposes the relief requested herein. INTRODUCTION 1. This lawsuit arises out of a motor vehicle accident occurring on August 9, 2017. As a result of the accident, Plaintiffs allege various different injuries. Plaintiffs have disclosed several of their treating health care providers as expert witnesses in this case. 2. With this Motion, Defendant Mucciante requests the opinions of Plaintiffs’ non- retained treating providers be limited to the opinions in their medical records. As a result, they should be precluded from offering expert opinion testimony regarding, among other things, causation, impairment, the need for future treatment, and the reasonableness, necessity, or relatedness of treatment and costs, whether provided by themselves or any other non-retained expert. ARGUMENT AND AUTHORITY A. Plaintiffs’ treating providers cannot testify beyond the opinions included in their treatment records. 3. The testimony of a treating provider who is not disclosed as a retained expert witness must be limited to his own records, as set forth by rulings in Colorado’s state and federal district courts. In Hulley v. Seifried, Douglas County District Court, Case No. 05 CV 2751, the Court held that “[t]he expert testimony of Plaintiff’s treating physicians at trial is limited to opinions clearly contained in medical records or expert reports provided to Defendant by the 1 The State of Colorado District Court orders referred herein are attached as Exhibit A. 2 expert disclosure deadline.” In addition, in State Farm Mutual Automobile Ins. Co., et al. v. Werner, et al., Adams County District Court, Case No. 07 CV 1028, Judge Katherine R. Delgado held that “Non retained experts should be limited to the opinions and information provided in their medical records.” Similarly, in Salazar v. State Farm Mutual Auto. Ins. Co., et. al., Case No. 10 CV 1088, Boulder District Court Judge Lisa D. Hamilton-Fieldman limited non-retained expert testimony as follows: [The expert] may not testify as to any opinion about the need for surgery, and may testify only as to his treatment records that Plaintiff had actually disclosed. The Court clarifies that [the expert] may testify as a treating physician only, not as a hybrid expert. The Court reminds the parties that if any treating physician is designated to testify as to occupant kinematics, any form of accident reconstruction, or causation issues not necessary to treatment, as to that portion of his or her report and testimony, he or she shall be treated as a ‘retained’ rather than a ‘treating’ expert for purposes of disclosures and discovery. 4. Also, in Mann v. State Farm Mutual Automobile Ins. Co., Case No. 10 CV 90, Boulder District Court Judge Lisa D. Hamilton-Fieldman explained the distinction between retained and non-retained expert testimony (Exhibit B attached hereto): [A non-retained expert] can extrapolate from their records but causation is not something that’s necessary to treatment. When a -- when an individual presents and says here’s what’s happening, I am having headaches, my back hurts, et cetera, et cetera, they don’t need to say, okay, gee, let’s figure out why did that -- why is she having backaches? Because she was in an accident in 2004…and the answer is no, they don’t need to know that in order to treat her…. They treat her. So if that’s it, if they are testifying as to being a treating physician then they get to testify as to their treatment which is in their records and what’s reasonably derived from their records. 3 5. Case law in the United States District Court for the District of Colorado provides the same conclusion. “One matter that is typically ‘not based on observations during the course of [medical] treatment’ is the cause of a patient’s injuries.” Scholl v. Pateder, No. 09-cv-02959- PAB-KLM, 2011 WL 2473284, at *4 (D.Colo. June 22, 2011) (emphasis added) (Exhibit C attached hereto). Courts have recognized that in general, “when a treating physician opines as to causation . . . [he] is going beyond what he saw and did and why he did it. He is going beyond his personal involvement in the facts of the case and giving an opinion formed because there is a lawsuit.” Id. (Citation omitted). Further, “[a] treating physician who has formulated opinions going beyond what was necessary to provide appropriate care for the injured party steps into the shoes of a retained expert for purposes of Rule 26(a)(2).” Harvey v. U.S., 2005 WL 3164236, *8 (D.Colo. Nov. 28, 2005). Finally, “when a treating physician's information or opinions were developed for trial, or where their expert testimony will concern matters not based on observations during the course of treatment, the treating physician will be required to prepare a written report.” Harvey, 2005 WL 3164236, at *9; see also Carbaugh v. Home Depot U.S.A., Inc., 2014 WL 3543714, at *3 (D.Colo. July 16, 2014) (“[W]hen a witness forms an opinion because there is a lawsuit, such as when he or she is asked to review the records of another health care provider in order to formulate his or her own opinion on the appropriateness of care, the witness is considered ‘retained or employed’ under Rule 26(a)(2)(B) and must file a written report accordingly.”) 6. If Plaintiffs wished for their treating providers to testify on matters outside of his/her treatment of Plaintiffs, Plaintiffs needed to designate them as a Rule 26(a)(2)(B)(I) retained expert and provide all the disclosure material that goes therewith. See Probst v. Portland 4 Sys., LLC, No. 06 CV 2358, 2007 WL 4741335 (D.Colo. 2007) (Exhibit D attached hereto) (“a treating physician need only provide a report if she intends to offer expert testimony about matters not based on her observations during the course of providing treatment”); see also Washington v. Arapahoe County Dep’t of Social Services, 197 F.R.D. 439 (D.Colo. 2000); Scholl v. Pateder, No. 09-cv-02959-PAB-KLM, 2011 WL 2473284, at *3 (D.Colo. June 22, 2011) (“[A] treating physician who has formulated opinions going beyond what was necessary to provide appropriate care for the injured party steps into the shoes of a retained expert for the purposes of Rule 26(a)(2)(B).”) Plaintiffs did not do this. 7. The mere fact that Plaintiffs elude to such testimony in their disclosure pleading does not change the fact that such opinions are not contained within their records and were not part of their treatment of the Plaintiffs. As such, Plaintiffs’ treating physicians should be precluded from offering expert opinion testimony beyond opinions contained in their treatment records. CONCLUSION 8. For the reasons stated herein, Plaintiffs’ non-retained treating providers are limited to the opinions contained in their treatment records and may not testify that “medical costs from the care and treatment of Plaintiff…as reasonable and necessary expenses,” that the “accident caused the actual injuries prescribed in the medical records and future needs and/or additional treatment may be required”, to “opinions outside the confines of his medical records”, or “render opinions concerning impairment and future costs”. DATED this 23rd day of October, 2023. Respectfully submitted, 5 PATTERSON RIPPLINGER, P.C. s/ Karl A. Chambers Karl A. Chambers, No. 17754 Attorneys for Defendant Mucciante 6 CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of October, 2023, a true and correct copy of the above and foregoing DEFENDANT MUCCIANTE’S MOTION IN LIMINE RE: TESTIMONY OF PLAINTIFFS’ TREATING MEDICAL PROVIDERS was served upon the following via Colorado Courts E-Filing: Jacob Galperin, Esq. Emily Somervill, Esq. Galperin and Associates 3773 Cherry Creek North Drive, Suite 701E Denver, Colorado 80209 (Attorneys for Plaintiffs) Bradley Ross-Shannon, Esq. Patrick C. Delaney, Esq. Ross-Shannon & Delaney, P.C. 300 Union Boulevard, Suite 415 Lakewood, Colorado 80228 (Attorneys for Defendant Shelton) s/ Terri A. Taylor Terri A. Taylor 7