The Court of Appeals of Colorado, Division II took on this interesting question in Sovde Ex. Rel Kinney v. Scott (2017 COA 90).
Shawn Sovde (“Sovde”) was born on June 25, 2006. Shortly after his birth, his mother noticed a scrape or a lesion on the top of his head and marks by his ears. She noticed more lesions on him the next day. The boy was examined by Dr. Andrew Sarka and Dr. Kevin Scott. The doctors told the mother, Katrina Kinney (“Kinney”) that it was cradle cap. Days later, at a hospital, it was determined that he had been infected with the herpes simplex virus in the central nervous system (“CNS”). The hospital started the baby on antibiotics, but the damage had been done to the CNS. He had seizures and a sensory processing disorder. The family sued the doctors for negligence for not properly diagnosing the herpes earlier. The jury found for the defendants.
Kinney appealed, saying the lower court should not have denied the use of the two expert witnesses the defendants had planned to call (and ultimately withdrew). Kinney wanted to call them as witnesses or at least use their depositions to cross-examine other witnesses. Second, that the court should not have excluded certain testimony as hearsay.
The Court of Appeals determined that the trial court, in its discretion, should decide whether excluding the expert’s testimony would result in unfair prejudice to the already endorsed witness for the opposing party to benefit from the endorsing party’s preparation.
Here, the Court of Appeals says that the trial court did not abuse its discretion in denying the use of the defense’s expert witnesses by the plaintiff, because the plaintiff had not taken the time to endorse those witnesses, even though they had appeared on the defense’s “May Call” list. The Court also denied the plaintiff was unfairly prejudiced by its decision. The Court of Appeals affirmed the trial court’s ruling.
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