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DATE FILED: October 10, 2023 2:59 PM
DISTRICT COURT, DENVER COUNTY, FILING ID: FB7AA02BA1FFA
COLORADO CASE NUMBER: 2023CV30006
1437 Bannock Street
Denver, CO80202
Plaintiff(s): Brigeda Rich
v.
Defendant(s): Thomas Debonville
COURT USE ONLY
Attorneys for Defendant: Case No.: 2023CV030006
John R. Rodman, #5900
Brendan P. Rodman, #39271
Cala R. Farina, #54689 Division: 275
Sheridan S. Couture, #55247
RODMAN & RODMAN, LLC
730 17th Street, Suite 110
Denver, CO 80202
Telephone: (303) 377-1111
Facsimile: (303) 377-1923
Email: jrodman@rodmanlawfirm.com
DEFENDANT’S RESPONSE TO MOTION TO EXCLUDE CERTAIN TESTIMONY
OF DEFENDANT’S RETAINED MEDICAL EXPERT, ALLISON FALL,
PURSUANT TO C.R.E. 702
COMES NOW the Defendant, Thomas Debonville, by and through counsel, Rodman &
Rodman, LLC, pursuant to Colo.R.Civ.P. 26(a)(1), and respectfully submits the following
Response to Motion to Exclude Certain Testimony of Defendant’s Retained Medical Expert,
Allison Fall, Pursuant to C.R.E. 702:
FACTS
1. This matter arises out of a September 25, 2022 two-vehicle collision that occurred at the
intersection of 24th Street and Stout Street in Denver, Colorado.
2. A four-day jury trial in this matter is scheduled to commence on November 27, 2023.
3. As a result of the collision, Plaintiff Rich alleges to have sustained injury to her neck, back,
abdominal pain, and left hip pain.
1
4. Defendant Debonville retained Dr. Fall to a complete a records review and provide an expert
report of her findings pertaining to the cause, duration, and prognosis of Plaintiff Rich’s alleged
injuries. As part of Dr. Fall’s records review, she reviewed medical records, medical bills, Pleadings,
Disclosures, discovery responses, the Traffic Accident Report, and photographs.
5. On August 21, 2023, Defendant Debonville identified medical expert, Allison Fall, M.D., as a
retained expert in his Initial Colo.R.Civ.P. 26(a)(2) Expert Disclosure, and disclosed an expert report
completed by Dr. Fall.
6. Dr. Fall found that based upon her review of the medical records, within a reasonable degree
of medical probability, as a result of the collision, Plaintiff Rich sustained an aggravation of pre-
existing neck pain as a result of cervical fractures, abdominal pain, and left hip pain, secondary to a
contusion. Dr. Fall also found that there was no mechanism of injury for a lumbar spine disc or facet
joint injury. See Exhibit 1, p. 8 of Plaintiff’s Motion to Exclude Certain Testimony of Defendant’s
Retained Medical Expert, Allison Fall, Pursuant to C.R.E. 702.
7. On August 31, 2023, undersigned provided plaintiff’s counsel with Dr. Fall’s expert file,
including all records reviewed by Dr. Fall, her testimony history, and her CV.
8. On September 8, 2023, plaintiff’s counsel took the deposition of Dr. Fall, wherein Dr. Fall
provided testimony consistent with her report. Plaintiff’s counsel asked Dr. Fall a number of
questions concerning forces involved in the collision. Dr. Fall testified she is not a biomechanical
expert. See Exhibit 2 to Plaintiff’s Motion to Exclude Certain Testimony of Defendant’s Retained
Medical Expert, Allison Fall, Pursuant to C.R.E. 702, Deposition Transcript of Dr. Fall, p. 10, ll. 3-
5.
9. During Dr. Fall’s deposition, she testified regarding her opinion that there was no mechanism
of injury for a lumbar spine disc or facet joint injury. Based upon her review of the records, Dr. Fall
found that “there was no initial documentation of any lumbar spine injury” and “there was no
description of any abnormal movement of [the plaintiff’s] lumbar spine” in the collision. See
Exhibit 2 to Plaintiff’s Motion to Exclude Certain Testimony of Defendant’s Retained Medical
Expert, Allison Fall, Pursuant to C.R.E. 702, Deposition Transcript of Dr. Fall, p. 15, ll. 1-13.
10. Dr. Fall is not expected to provide a biomechanical opinion regarding forces involved in the
collision. Dr. Fall is a medical doctor addressing the causation of the Plaintiff’s injuries and
complaints. She will testify consistent with opinions contained within her report, based upon records
she reviewed, and her experience.
LAW
11. The admissibility of expert testimony is governed by the Colorado Rules of Evidence and, in
particular, C.R.E. 702 and C.R.E. 403. See People v. Shreck, 22 P.3d 68, 77 (Colo. 2001).
2
12. Pursuant to C.R.E. 702, a trial court must, as a threshold matter, “consider whether the
substance of the proffered testimony will be helpful to the fact finder.” Brooks v. People, 975 P.2d
1105, 1109 (Colo. 1999); see also, C.R.E. 702. This is, in essence, a relevancy determination. Shreck,
supra. That is, whether the proffered testimony has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.” C.R.E. 401.
13. C.R.E. 702 governs the admissibility of scientific expert testimony and requires that the
“testimony be reliable and relevant.” Estate of Ford v. Eicher, 250 P.3d 262, 666 (Colo. 2011)
(citing Shreck, supra).
14. Pursuant to C.R.E. 702, a witness qualified as an expert may testify if her “scientific, technical,
or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue.” When determining whether to admit expert testimony, a trial court should evaluate:
(1) the reliability of the scientific principals at issues;
(2) the witnesses’ qualifications to opine on such principals;
(3) the usefulness of the testimony to the jury; and
(4) the danger of unfair prejudice or confusion must not substantially outweigh the
probative value of the evidence in order to satisfy C.R.E. 403.
Shreck, supra.
15. The Colorado Supreme Court has distilled this analysis into the following question: “On this
subject can a jury from this person receive appreciable help?” Brooks, supra, quoting People v.
Williams, 790 P.2d 796, 798 (Colo. 1990) (italics in original). After completing the threshold inquiry,
“[a] court must next review the qualifications of the witness, and determine whether a showing of
‘knowledge, skill, experience, training, or education’ has been made sufficient to support testimony in
the form of an expert opinion.” Huntoon v. TCI Cablevision of Colorado, Inc., 969 P.2d 681, 689
(Colo. 1998) (quoting C.R.E. 702).
16. Finally, if a trial court finds that the testimony “would be useful to the jury” and the
witness is competent to testify on the subject, it must then apply its discretionary C.R.E. 403
authority. Brooks at 1114. “[T]he focus of a trial court’s inquiry should be on the reliability and
relevance of the scientific evidence, and that such an inquiry requires a determination as to (1) the
reliability of the scientific principles; (2) the qualifications of the witness; and (3) the usefulness of
the testimony to the jury. Shreck at 78.
17. “An expert opinion is helpful to the trier of fact if it embraces a relevant matter outside of
the understanding of the typical juror.” Huntoon at 690. Ultimately, a trial court has broad
discretion to determine the admissibility of expert testimony. People v. Ramirez, 155 P.3d 371, 380
(Colo. 2007).
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ARGUMENT
18. The Plaintiff has moved to strike Dr. Fall from providing a biomechanical opinion, requesting
that Dr. Fall be prohibited from opining upon “how specific forces acted upon Plaintiff’s body in the
subject collision” and a mechanism of injury. Dr. Fall opines that Plaintiff Rich did not sustain a
lumbar spine injury, due “no initial documentation of any lumbar spine injury” and “no description of
any abnormal movement of [the plaintiff’s] lumbar spine” in the collision. See Exhibit 2 to Plaintiff’s
Motion to Exclude Certain Testimony of Defendant’s Retained Medical Expert, Allison Fall, Pursuant
to C.R.E. 702, Deposition Transcript of Dr. Fall, p. 15, ll. 1-13. Dr. Fall relied upon her review of the
records in offering that opinion.
19. As a medical doctor, one of Dr. Fall’s functions is to identify what causes a patient’s
complaints and any potential mechanism of injury.
20. Dr. Fall’s expert opinion meets the requirements set forth by C.R.E. 702 and 403, as well as
Shreck standards for the Court’s consideration in admitting expert testimony.
21. Dr. Fall’s expert opinion is reliable. Dr. Fall conducted an extensive records review in
providing her opinion regarding the cause, duration, and prognosis of the plaintiff’s injuries.
22. Dr. Fall is qualified to opine upon injuries sustained in motor vehicle accidents, as well as the
plaintiff’s injuries and the cause of those injuries. As detailed in Dr. Fall’s CV, she has extensive
experience in treating patients for injuries sustained in motor vehicle accidents, and their rehabilitation
from those injuries. See Dr. Fall’s CV, attached hereto as Exhibit A. Dr. Fall is familiar with the types
of injuries sustained in motor vehicle accidents and the cause of those injuries.
23. Dr. Fall’s testimony will be useful to the jury. Dr. Fall will provide expert medical opinions,
embracing a relevant matter outside of the understanding of the typical juror, as a typical juror does
not have knowledge regarding injuries sustained in motor vehicle accidents and how those injuries
are caused.
24. Dr. Fall’s opinion is not unfairly prejudicial and would not confuse or mislead the jury. Any
opinion offered regarding injuries sustained by Plaintiff Rich in the motor vehicle accident and how
those injuries were sustained, is well within Dr. Fall’s expertise and will be helpful to the jury.
25. Dr. Fall will not provide a biomechanical opinion regarding forces involved in the collision.
She will testify consistent with opinions contained within her report, based upon records she reviewed,
and her experience.
CONCLUSION
WHEREFORE, Defendant Debonville respectfully requests that the Court deny Plaintiff’s
Motion to Exclude Certain Testimony of Defendant’s Retained Medical Expert, Allison Fall, Pursuant
to C.R.E. 702
4
Respectfully submitted,
RODMAN & RODMAN, LLC
Signed original document maintained
and available pursuant to Rule 121
By: /s/Cala R. Farina
John R. Rodman, #5900
Brendan P. Rodman, #39271
Cala R. Farina, #54689
Sheridan S. Couture, #55247
730 17th Street, Suite 110
Denver, CO 80202
Phone: (303) 377-1111
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of October 2023, I served a true and correct
copy of the attached DEFENDANT’S RESPONSE TO MOTION TO EXCLUDE
CERTAIN TESTIMONY OF DEFENDANT’S RETAINED MEDICAL EXPERT,
ALLISON FALL, PURSUANT TO C.R.E. 702, via Colorado Courts E-Filing, to the
following individual(s):
DezaRae D. LaCrue, Reg. No. 40290
Franklin D. Azar & Associates, P.C.
14426 East Evans Avenue
Denver, CO 80014
ATTORNEYS FOR PLAINTIFF
Signed original document maintained
and available pursuant to Rule 121
/s/ Anissa Schramm
Anissa Schramm
5
Preview
DATE FILED: October 10, 2023 2:59 PM DISTRICT COURT, DENVER COUNTY, FILING ID: FB7AA02BA1FFA COLORADO CASE NUMBER: 2023CV30006 1437 Bannock Street Denver, CO80202 Plaintiff(s): Brigeda Rich v. Defendant(s): Thomas Debonville COURT USE ONLY Attorneys for Defendant: Case No.: 2023CV030006 John R. Rodman, #5900 Brendan P. Rodman, #39271 Cala R. Farina, #54689 Division: 275 Sheridan S. Couture, #55247 RODMAN & RODMAN, LLC 730 17th Street, Suite 110 Denver, CO 80202 Telephone: (303) 377-1111 Facsimile: (303) 377-1923 Email: jrodman@rodmanlawfirm.com DEFENDANT’S RESPONSE TO MOTION TO EXCLUDE CERTAIN TESTIMONY OF DEFENDANT’S RETAINED MEDICAL EXPERT, ALLISON FALL, PURSUANT TO C.R.E. 702 COMES NOW the Defendant, Thomas Debonville, by and through counsel, Rodman & Rodman, LLC, pursuant to Colo.R.Civ.P. 26(a)(1), and respectfully submits the following Response to Motion to Exclude Certain Testimony of Defendant’s Retained Medical Expert, Allison Fall, Pursuant to C.R.E. 702: FACTS 1. This matter arises out of a September 25, 2022 two-vehicle collision that occurred at the intersection of 24th Street and Stout Street in Denver, Colorado. 2. A four-day jury trial in this matter is scheduled to commence on November 27, 2023. 3. As a result of the collision, Plaintiff Rich alleges to have sustained injury to her neck, back, abdominal pain, and left hip pain. 1 4. Defendant Debonville retained Dr. Fall to a complete a records review and provide an expert report of her findings pertaining to the cause, duration, and prognosis of Plaintiff Rich’s alleged injuries. As part of Dr. Fall’s records review, she reviewed medical records, medical bills, Pleadings, Disclosures, discovery responses, the Traffic Accident Report, and photographs. 5. On August 21, 2023, Defendant Debonville identified medical expert, Allison Fall, M.D., as a retained expert in his Initial Colo.R.Civ.P. 26(a)(2) Expert Disclosure, and disclosed an expert report completed by Dr. Fall. 6. Dr. Fall found that based upon her review of the medical records, within a reasonable degree of medical probability, as a result of the collision, Plaintiff Rich sustained an aggravation of pre- existing neck pain as a result of cervical fractures, abdominal pain, and left hip pain, secondary to a contusion. Dr. Fall also found that there was no mechanism of injury for a lumbar spine disc or facet joint injury. See Exhibit 1, p. 8 of Plaintiff’s Motion to Exclude Certain Testimony of Defendant’s Retained Medical Expert, Allison Fall, Pursuant to C.R.E. 702. 7. On August 31, 2023, undersigned provided plaintiff’s counsel with Dr. Fall’s expert file, including all records reviewed by Dr. Fall, her testimony history, and her CV. 8. On September 8, 2023, plaintiff’s counsel took the deposition of Dr. Fall, wherein Dr. Fall provided testimony consistent with her report. Plaintiff’s counsel asked Dr. Fall a number of questions concerning forces involved in the collision. Dr. Fall testified she is not a biomechanical expert. See Exhibit 2 to Plaintiff’s Motion to Exclude Certain Testimony of Defendant’s Retained Medical Expert, Allison Fall, Pursuant to C.R.E. 702, Deposition Transcript of Dr. Fall, p. 10, ll. 3- 5. 9. During Dr. Fall’s deposition, she testified regarding her opinion that there was no mechanism of injury for a lumbar spine disc or facet joint injury. Based upon her review of the records, Dr. Fall found that “there was no initial documentation of any lumbar spine injury” and “there was no description of any abnormal movement of [the plaintiff’s] lumbar spine” in the collision. See Exhibit 2 to Plaintiff’s Motion to Exclude Certain Testimony of Defendant’s Retained Medical Expert, Allison Fall, Pursuant to C.R.E. 702, Deposition Transcript of Dr. Fall, p. 15, ll. 1-13. 10. Dr. Fall is not expected to provide a biomechanical opinion regarding forces involved in the collision. Dr. Fall is a medical doctor addressing the causation of the Plaintiff’s injuries and complaints. She will testify consistent with opinions contained within her report, based upon records she reviewed, and her experience. LAW 11. The admissibility of expert testimony is governed by the Colorado Rules of Evidence and, in particular, C.R.E. 702 and C.R.E. 403. See People v. Shreck, 22 P.3d 68, 77 (Colo. 2001). 2 12. Pursuant to C.R.E. 702, a trial court must, as a threshold matter, “consider whether the substance of the proffered testimony will be helpful to the fact finder.” Brooks v. People, 975 P.2d 1105, 1109 (Colo. 1999); see also, C.R.E. 702. This is, in essence, a relevancy determination. Shreck, supra. That is, whether the proffered testimony has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” C.R.E. 401. 13. C.R.E. 702 governs the admissibility of scientific expert testimony and requires that the “testimony be reliable and relevant.” Estate of Ford v. Eicher, 250 P.3d 262, 666 (Colo. 2011) (citing Shreck, supra). 14. Pursuant to C.R.E. 702, a witness qualified as an expert may testify if her “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” When determining whether to admit expert testimony, a trial court should evaluate: (1) the reliability of the scientific principals at issues; (2) the witnesses’ qualifications to opine on such principals; (3) the usefulness of the testimony to the jury; and (4) the danger of unfair prejudice or confusion must not substantially outweigh the probative value of the evidence in order to satisfy C.R.E. 403. Shreck, supra. 15. The Colorado Supreme Court has distilled this analysis into the following question: “On this subject can a jury from this person receive appreciable help?” Brooks, supra, quoting People v. Williams, 790 P.2d 796, 798 (Colo. 1990) (italics in original). After completing the threshold inquiry, “[a] court must next review the qualifications of the witness, and determine whether a showing of ‘knowledge, skill, experience, training, or education’ has been made sufficient to support testimony in the form of an expert opinion.” Huntoon v. TCI Cablevision of Colorado, Inc., 969 P.2d 681, 689 (Colo. 1998) (quoting C.R.E. 702). 16. Finally, if a trial court finds that the testimony “would be useful to the jury” and the witness is competent to testify on the subject, it must then apply its discretionary C.R.E. 403 authority. Brooks at 1114. “[T]he focus of a trial court’s inquiry should be on the reliability and relevance of the scientific evidence, and that such an inquiry requires a determination as to (1) the reliability of the scientific principles; (2) the qualifications of the witness; and (3) the usefulness of the testimony to the jury. Shreck at 78. 17. “An expert opinion is helpful to the trier of fact if it embraces a relevant matter outside of the understanding of the typical juror.” Huntoon at 690. Ultimately, a trial court has broad discretion to determine the admissibility of expert testimony. People v. Ramirez, 155 P.3d 371, 380 (Colo. 2007). 3 ARGUMENT 18. The Plaintiff has moved to strike Dr. Fall from providing a biomechanical opinion, requesting that Dr. Fall be prohibited from opining upon “how specific forces acted upon Plaintiff’s body in the subject collision” and a mechanism of injury. Dr. Fall opines that Plaintiff Rich did not sustain a lumbar spine injury, due “no initial documentation of any lumbar spine injury” and “no description of any abnormal movement of [the plaintiff’s] lumbar spine” in the collision. See Exhibit 2 to Plaintiff’s Motion to Exclude Certain Testimony of Defendant’s Retained Medical Expert, Allison Fall, Pursuant to C.R.E. 702, Deposition Transcript of Dr. Fall, p. 15, ll. 1-13. Dr. Fall relied upon her review of the records in offering that opinion. 19. As a medical doctor, one of Dr. Fall’s functions is to identify what causes a patient’s complaints and any potential mechanism of injury. 20. Dr. Fall’s expert opinion meets the requirements set forth by C.R.E. 702 and 403, as well as Shreck standards for the Court’s consideration in admitting expert testimony. 21. Dr. Fall’s expert opinion is reliable. Dr. Fall conducted an extensive records review in providing her opinion regarding the cause, duration, and prognosis of the plaintiff’s injuries. 22. Dr. Fall is qualified to opine upon injuries sustained in motor vehicle accidents, as well as the plaintiff’s injuries and the cause of those injuries. As detailed in Dr. Fall’s CV, she has extensive experience in treating patients for injuries sustained in motor vehicle accidents, and their rehabilitation from those injuries. See Dr. Fall’s CV, attached hereto as Exhibit A. Dr. Fall is familiar with the types of injuries sustained in motor vehicle accidents and the cause of those injuries. 23. Dr. Fall’s testimony will be useful to the jury. Dr. Fall will provide expert medical opinions, embracing a relevant matter outside of the understanding of the typical juror, as a typical juror does not have knowledge regarding injuries sustained in motor vehicle accidents and how those injuries are caused. 24. Dr. Fall’s opinion is not unfairly prejudicial and would not confuse or mislead the jury. Any opinion offered regarding injuries sustained by Plaintiff Rich in the motor vehicle accident and how those injuries were sustained, is well within Dr. Fall’s expertise and will be helpful to the jury. 25. Dr. Fall will not provide a biomechanical opinion regarding forces involved in the collision. She will testify consistent with opinions contained within her report, based upon records she reviewed, and her experience. CONCLUSION WHEREFORE, Defendant Debonville respectfully requests that the Court deny Plaintiff’s Motion to Exclude Certain Testimony of Defendant’s Retained Medical Expert, Allison Fall, Pursuant to C.R.E. 702 4 Respectfully submitted, RODMAN & RODMAN, LLC Signed original document maintained and available pursuant to Rule 121 By: /s/Cala R. Farina John R. Rodman, #5900 Brendan P. Rodman, #39271 Cala R. Farina, #54689 Sheridan S. Couture, #55247 730 17th Street, Suite 110 Denver, CO 80202 Phone: (303) 377-1111 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 10th day of October 2023, I served a true and correct copy of the attached DEFENDANT’S RESPONSE TO MOTION TO EXCLUDE CERTAIN TESTIMONY OF DEFENDANT’S RETAINED MEDICAL EXPERT, ALLISON FALL, PURSUANT TO C.R.E. 702, via Colorado Courts E-Filing, to the following individual(s): DezaRae D. LaCrue, Reg. No. 40290 Franklin D. Azar & Associates, P.C. 14426 East Evans Avenue Denver, CO 80014 ATTORNEYS FOR PLAINTIFF Signed original document maintained and available pursuant to Rule 121 /s/ Anissa Schramm Anissa Schramm 5