Sovde v. Scott, D.O

COLORADO COURT OF APPEALS 2017COA90
Court of Appeals No. 16CA0448
Arapahoe County District Court No. 13CV30674
Honorable Kurt A. Horton, Judge
Shawn Sovde, a minor, by and through his mother and next friend, Katrina
Kinney,
Plaintiff-Appellant,
v.
Kevin Scott, D.O.; and Andrew Sarka, M.D.,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE BERNARD
Dailey and Fox, JJ., concur
Announced June 29, 2017
Andrew T. Brake, P.C., Andrew T. Brake, Englewood, Colorado, for Plaintiff-
Appellant
Hershey Decker, PLLC, C. Todd Drake, Lone Tree, Colorado, for Defendants-
Appellees
¶1 Colorado’s Rules of Civil Procedure require parties to lawsuits
to endorse expert witnesses and to inform each other of the
substance of the expert witnesses’ testimony. But what happens if
one party withdraws an endorsed “may call” expert witness shortly
before trial or during trial, and the opposing party then announces
that it wants to call the withdrawn witness to testify? We conclude
that, to answer this question, a trial court should, in the exercise of
its discretion, balance factors such as (1) whether the expert’s
testimony would be cumulative; (2) whether excluding the expert’s
testimony would result in unfair prejudice to the nonendorsing
party; and (3) whether the nonendorsing party did not endorse its
own expert on the subject, because the absence of such an
endorsement would suggest an attempt to “piggyback” on the
endorsing party’s preparation.
¶2 This question arose in the context of a medical malpractice
case. Plaintiff, a child, Shawn Sovde, by and through his mother,
Katrina Kinney, sued defendants, Dr. Andrew Sarka and Dr. Kevin
Scott. The jury found in defendants’ favor. Plaintiff appeals. We
affirm.
1
I. Background
¶3 The child 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.
¶4 Dr. Sarka examined the child on the day after he was born,
and Dr. Scott examined him the day after that. Dr. Scott told the
mother that the lesions were “baby acne” and “cradle cap.” He
repeated these observations when he examined the child three days
later. Neither doctor took any action or ordered additional testing
concerning the lesions during the week after the child was born.
¶5 The child’s behavior changed on July 4, or nine days after his
birth. The mother later testified that he “was not eating as well” as
he had earlier, and that he was “[m]uch sleepier.” The lesions on
his head were “getting bigger,” and they were spreading.
¶6 The next day, based on a pediatrician’s advice, the mother and
the child’s father, Raymond Sovde, rushed the child to the hospital.
Once there, doctors determined that the child had been infected
with the herpes simplex virus, which had manifested itself in two
2
ways: skin, eyes, and mucous membrane (SEM) disease, and
central nervous system (CNS) disease.
¶7 The doctors at the hospital immediately began to treat the
child with antibiotics, which they repeated over time. But the CNS
disease had done serious damage, eventually inducing seizures and
causing a sensory processing disorder. And some of the medicine
that the doctors prescribed for the child caused other medical
problems, such as pancreatitis.
¶8 The child’s lawsuit claimed that
 defendants had negligently misdiagnosed the child’s
lesions as something benign instead of manifestations of
the herpes simplex virus, even though, plaintiff alleged,
the child had herpes-caused lesions on his head on the
day that he was born; and
 if defendants had timely and properly diagnosed the
lesions as products of less harmful SEM disease, they
could have treated the child with antibiotics, which could
have prevented the onset of the more harmful CNS
disease.
¶9 Defendants countered that
3
 the child had developed the two forms of herpes-related
disease simultaneously on July 4 or 5, and that the
lesions that the mother had seen on him on the day of
his birth had not been herpes-related; so
 they were not negligent because they could not have
diagnosed any herpes-related disease before July 4 or 5.
¶ 10 The case proceeded to trial. The jury found that defendants
had not been negligent.
¶ 11 Plaintiff raises two contentions on appeal.
¶ 12 First, he asserts that the trial court erred when it denied
related requests concerning two of defendants’ previously endorsed
expert witnesses whom defendants had withdrawn. Plaintiff wanted
to call them to testify, or to use their depositions to cross-examine
defendants’ other experts.
¶ 13 Second, he contends that the trial court erred when it
excluded certain testimony because it was hearsay.
II. Withdrawn Expert Witnesses
A. Additional Background
¶ 14 Defendants endorsed several expert witnesses more than three
months before trial. One of them, Dr. Thomas Reiley, was a
4
neurologist. Another, Dr. Richard Molteni, was a pediatrician and a
neonatologist. The endorsement described them as “Specially
Retained Expert Witnesses Who May be Called to Testify During the
Hearing in this Matter.”
¶ 15 Plaintiff did not endorse Dr. Reiley or Dr. Molteni. But he
reserved the right “to call any witnesses listed by . . . [d]efendants
and any rebuttal or impeachment witnesses as may be deemed
necessary, at the conclusion of [d]efendants’ case.”
¶ 16 About six weeks before trial, defendants designated the two
expert witnesses as “may call” witnesses on their witness list.
(C.R.C.P. 16(f)(3)(VI)(A) distinguishes between “may call” and “will
call” witnesses. “If a party lists a witness as a ‘will call’ witness,
that party ‘must ensure’ that the witness will be available to testify
at trial if called by any party without the necessity of another party
serving a subpoena on the witness.” 6 David R. DeMuro, Colorado
Practice Series: Civil Trial Practice § 9.4, Westlaw (database updated
Aug. 2016). As we explain in more detail below, there is no such
requirement for “may call” witnesses.)
¶ 17 Eleven days before trial, defendants filed a motion stating that
they would not call Dr. Reiley at trial. They asked the trial court to
5
exclude all of his “[d]eposition testimony, handwritten notes, and
literature” from the trial.
¶ 18 The next day, plaintiff updated his witness list to include Dr.
Reiley, and he served him with a subpoena.
¶ 19 After a hearing, the trial court ruled that plaintiff could not
call Dr. Reiley as his witness and that plaintiff could not refer to his
deposition or expert report. The court observed that defendants
had listed him as a “may call” witness and that they were “entitled
to withdraw [him] as an expert witness. They have done so
somewhat belatedly but have done so.”
¶ 20 The court did not anticipate that plaintiff would be prejudiced
if he could not call Dr. Reiley to the stand. “Among other things,
[he has his] own expert in pediatric neurology endorsed to testify in
this case as well as a number of other witnesses.”
¶ 21 Near the end of defendants’ case-in-chief, they said that they
would not call Dr. Molteni to testify. Plaintiff asked the court to
allow him to call Dr. Molteni as his own rebuttal witness or to allow
him to read Dr. Molteni’s deposition to the jury. Plaintiff claimed
that his opinions “very much rebut[ted]” other defense expert
opinions.
6
¶ 22 Citing its previous ruling about Dr. Reiley, the court denied
plaintiff’s request. Although it acknowledged that it was “somewhat
sensitive to the fact that [defendants were] doing this late,” the
court explained that plaintiff should have endorsed Dr. Molteni as
his own witness if he had planned to rely on his opinions in
rebuttal.
¶ 23 The court did, however, allow plaintiff to use Dr. Reiley’s and
Dr. Molteni’s opinions in hypothetical questions for cross-examining
some of defendants’ other expert witnesses. But the court, citing
“strong public policy reasons,” added that plaintiff could not name
these experts or suggest that the hypotheticals had come from the
opinions of defendants’ formerly endorsed expert witnesses.
B. Standard of Review
¶ 24 Trial courts have broad discretion to admit or to exclude
expert testimony, Estate of Ford v. Eicher, 220 P.3d 939, 942 (Colo.
App. 2008), aff’d, 250 P.3d 262 (Colo. 2011), and to permit “late
identified witnesses to testify,” Dare v. Sobule, 648 P.2d 169, 171
(Colo. App. 1982), rev’d on other grounds, 674 P.2d 960 (Colo.
1984). A trial court abuses its discretion if its ruling is manifestly
7
arbitrary, unreasonable, or unfair, or if it applies an incorrect legal
standard. Estate of Ford, 220 P.3d at 942.
C. Applicable Rules
¶ 25 Colorado’s civil rules require each party to disclose to the
opposing party the identity and expertise of any person who may
present evidence at trial. C.R.C.P. 26(a)(2)(A); see also C.R.C.P.
26(a)(2)(B) (requiring parties to disclose retained experts via a
written and signed report).
¶ 26 A different rule requires each party to file a “proposed trial
management order” at least twenty-eight days before trial,
identifying the witnesses whom it “will call” and the witnesses
whom it “may call.” C.R.C.P. 16(f)(3)(VI)(A).
When a party lists a witness as a “will call”
witness, the party does not have to call the
witness to testify, but must ensure that the
witness will be available to testify at trial if
called by any party without the necessity for
any other party to subpoena the witness for
the trial.
Id. The rule does not contain similar requirements for “may call”
witnesses. See id.
¶ 27 This lack of a parallel requirement has meaning because we
cannot “add words” to a court rule. See Boulder Cty. Bd. of
8
Comm’rs v. HealthSouth Corp., 246 P.3d 948, 951 (Colo. 2011)(“We
do not add words to a statute.”); see also Leaffer v. Zarlengo, 44
P.3d 1072, 1078 (Colo. 2002)(noting that standard principles of
statutory construction apply to the interpretation of court rules).
Applying de novo review, see Gleason v. Judicial Watch, Inc., 2012
COA 76, ¶ 14 (interpreting court rules is a question of law that
appellate courts review de novo), we conclude that the presence of
the requirement for “will call” witnesses in C.R.C.P. 16(f)(3)(VI)(A),
and the absence of the requirement for “may call” witnesses in that
rule, indicates that the supreme court, in promulgating the rule,
made a deliberate choice, see BSLNI, Inc. v. Russ T. Diamonds, Inc.,
2012 COA 214, ¶ 9 (using standard statutory construction
principles in evaluating the Colorado Rules of Civil Procedure); cf.
People v. Seacrist, 874 P.2d 438, 440 (Colo. App. 1993)(Appellate
courts apply “the presumption that the General Assembly was
aware that qualifying language could be added to limit application
of the statute . . . and that it would have done so if such had been
its intent.”). We conclude that the deliberate choice of the supreme
court was to eschew placing a responsibility on parties to make
9
their “may call” witnesses available at trial if they decide that they
do not want to call those witnesses to testify.
¶ 28 C.R.C.P. 16 also requires parties to, at least twenty-eight days
before trial, identify the depositions of any witness that they may
use at trial. C.R.C.P. 16(f)(3)(VI)(D) (“If the preserved testimony of
any witness is to be presented the proponent of the testimony shall
provide the other parties with its designations of such testimony at
least 28 days before the trial date.”).
D. Application
¶ 29 Plaintiff’s contention is multifaceted. First, he appears to
assert that the trial court should not have allowed defendants to
withdraw Dr. Reiley and Dr. Molteni past the trial management
deadline. Second, he submits the court should have permitted him
to call the doctors to testify after defendants had withdrawn them or
permitted him to use their depositions to cross-examine other
expert witnesses. We disagree with both facets of this contention.
1. The Trial Court Properly Permitted Defendants to Withdraw
Dr. Reiley and Dr. Molteni as Witnesses
¶ 30 To begin, defendants designated both Dr. Reiley and Dr.
Molteni as “may call” experts at least twenty-eight days before trial
10
to comport with C.R.C.P. 16(f)(3)(VI)(A). Defendants also complied
with C.R.C.P. 26 because they disclosed the two doctors as experts
that they “may” call. See C.R.C.P. 26(a)(2)(A).
¶ 31 We are not aware of any Colorado rule or holding — and
plaintiff does not cite any — that requires a party to call each
witness on its witness list. Some cases have expressly rejected
such a rule. See Warren v. People, 121 Colo. 118, 123, 213 P.2d
381, 384 (1949)(“[T]he district attorney is under no obligation to call
all witnesses whose names are endorsed on the information.”); see
also United States v. Bond, 552 F.3d 1092, 1097 (9th Cir. 2009)(“[I]t
is elementary that litigants are not required to call every witness
identified on their witness lists. The witness list simply provides
notice to the court and to opposing counsel of the witnesses who
may be presented at trial.”).
¶ 32 In the absence of any authority holding otherwise, we
conclude that the trial court did not abuse its discretion when it
permitted defendants to withdraw Dr. Reiley and Dr. Molteni. We
also conclude, for the reasons that we explained above, that
defendants did not have an obligation to make them available at
11
trial to testify because defendants had designated them as “may
call” witnesses, not “will call” witnesses.
2. The Trial Court Did Not Abuse Its Discretion When It Denied
Plaintiff’s Request to Call Dr. Reiley and Dr. Molteni to Testify or to
Use Their Depositions
¶ 33 Plaintiff did not comply with C.R.C.P. 26 because he did not
timely endorse Dr. Reiley or Dr. Molteni. He also did not inform the
court and defendants that he would use their depositions at trial
under C.R.C.P. 16(f)(3)(VI)(D).
¶ 34 In exercising its broad discretion to reject plaintiff’s request “to
endorse witnesses after the date permitted by rule,” Brown v.
Hollywood Bar & Cafe, 942 P.2d 1363, 1365 (Colo. App. 1997), the
trial court pointed out that plaintiff had not informed the court he
would rely on the expert opinions of Dr. Reiley and Dr. Molteni. The
court also observed that plaintiff had endorsed several of his own
experts with similar expertise. See, e.g., People v. Carmichael, 179
P.3d 47, 55 (Colo. App. 2007)(“Because Carmichael’s late
endorsement violated the discovery rules, and he failed to articulate
a reason why it was so late, we perceive no abuse of discretion by
the court in imposing a sanction and disallowing the testimony of
the defense witness.”), rev’d on other grounds, 206 P.3d 800 (Colo.
12
2009); Brown, 942 P.2d at 1365)(concluding that the trial court did
not abuse its discretion when it barred witnesses from testifying
who had not been timely endorsed).
¶ 35 Notwithstanding plaintiff’s untimely endorsements of the
doctors and requests to use their depositions, he asserts that, “once
a party endorses an expert, the expert has been deposed, and the
parties are engaged in final trial preparation,” “it is too late to
prohibit an opposing party from calling the expert.” Even if we
assume that plaintiff’s untimely endorsements were insufficient to
support the trial court’s decision to bar Dr. Reiley and Dr. Molteni
from testifying, we still conclude that the trial court did not abuse
its discretion.
¶ 36 C.R.C.P. 26 and its federal counterpart are silent about
whether a party may call an opposing party’s expert witness once
the opposing party has withdrawn the expert. See Ferguson v.
Michael Foods, Inc., 189 F.R.D. 408, 409 (D. Minn. 1999);
McClendon v. Collins, 372 P.3d 492, 494 (Nev. 2016)(“[T]he rules of
civil procedure are silent as to whether an opposing party may
depose or call as a witness an expert who had been designated as
13
one who will testify at trial but was then later de-designated.”).
Colorado appellate courts have not addressed this question.
¶ 37 Courts outside of Colorado have used a “discretionary” or
“balancing” approach to determine whether one party may call the
opposing party’s withdrawn expert. See House v. Combined Ins. Co.
of Am., 168 F.R.D. 236, 242-47 (N.D. Iowa 1996)(describing the
discretionary or balancing approach and applying it in that case);
see also Peterson v. Willie, 81 F.3d 1033, 1037-38, 1038 n.4 (11th
Cir. 1996)(explaining that once an expert is withdrawn by one
party, the court has discretion to permit the opposing party to call
the expert); McClendon, 372 P.3d at 494 (noting that the
discretionary standard is the “proper standard” to determine
whether a “de-designated” expert may testify for the opposing
party)(citation omitted).
¶ 38 A court applying this balancing test weighs factors such as
whether the expert’s testimony would be cumulative, thus limiting
the testimony’s probative value; whether excluding the expert’s
testimony would result in unfair prejudice; and whether the
opposing party failed to endorse its own expert, thereby
14
demonstrating an attempt to “piggyback” on the other party’s
preparation. McClendon, 372 P.3d at 495.
¶ 39 Courts adopting the balancing test also recognize that the
party that originally endorsed the expert witness can suffer
prejudice if the opposing party calls the withdrawn expert to testify.
For example, “[j]urors unfamiliar with the role of counsel in
adversary proceedings might well assume that [a party’s] counsel
had suppressed evidence which he had an obligation to offer [when
the party withdrew an expert witness.] Such a reaction could
destroy counsel’s credibility in the eyes of the jury.” Peterson, 81
F.3d at 1037 (quoting Granger v. Wisner, 656 P.2d 1238, 1242 (Ariz.
1982)). Another court described this sort of prejudice as
“explosive.” Rubel v. Eli Lilly & Co., 160 F.R.D. 458, 460 (S.D.N.Y.
1995)(consulting expert witness context; the expert at issue was not
designated by the hiring party to testify); see also Damian D.
Capozzola, Expert Witnesses in Civil Trials § 8:27, Westlaw
(database updated Sept. 2016)(“[T]here should be a presumption
against a party being able to call at trial an expert originally
retained by the other party, a presumption that can only be
overcome by a showing of exceptional circumstances, or by
15
prophylactic measures taken by the [c]ourt to ensure that the other
party is not unduly prejudiced. Indeed, a number of courts have
held that a party may not use the deposition of an opponent’s
withdrawn expert.”).
¶ 40 Our review of the record indicates to us that the trial court
applied the balancing test described in cases such as House and
Peterson. Indeed, in its order denying plaintiff’s motion for a new
trial, the court cited those two cases.
¶ 41 As well, during the trial, the court explained that
 “there has been no reliance by [plaintiff] on the
endorsement of Dr. Reiley. There’s no specific cross
endorsement for Dr. Reiley or otherwise an indication
sufficient to the [c]ourt that [plaintiff was] relying upon
Dr. Reiley being present”;
 “there should be no prejudice to [plaintiff if the court
does not allow him to call Dr. Reiley to testify]. Among
other things, [he has his] own expert in pediatric
neurology endorsed to testify in this case as well as a
number of other witnesses”; and
 Dr. Reiley’s testimony would be “duplicative.”
16
¶ 42 The court relied on the same reasoning to deny plaintiff’s
request to call Dr. Molteni to testify or to use his deposition. And
the court reiterated these same reasons when it denied plaintiff’s
motion for a new trial.
¶ 43 The record does not include trial transcripts of the testimony
of the expert witnesses whom plaintiff called to testify at trial. So
we must presume that the missing transcripts supported the trial
court’s decision. See In re Marriage of Cardona, 321 P.3d 518, 526
(Colo. App. 2010), aff’d on other grounds, 2014 CO 3.
¶ 44 Plaintiff next asserts that Dr. Reiley and Dr. Molteni held
opinions that were inconsistent with the opinion of a third expert
witness whom defendants called to testify at trial. (This witness,
Dr. Michael Radetsky, was a pediatrician who had expertise in
pediatric infectious diseases.) The trial court’s order barring Dr.
Reiley and Dr. Molteni from testifying was, plaintiff continues,
therefore unjust.
¶ 45 The record contains Dr. Reiley’s and Dr. Molteni’s depositions
and reports and the testimony of Dr. Radetsky. Contrary to
plaintiff’s assertion, our review of the record shows only small
differences among these various sources of expert opinion. For
17
example, Dr. Reiley offered the opinion that babies who contract
SEM disease will eventually develop CNS disease in about seventy
percent of cases; Dr. Radetsky did not “know the derivation” of this
statistic. Dr. Reiley thought that the incubation period for the
herpes simplex virus was two to twelve days after birth; Dr.
Radetsky said the timeframe could vary if babies were inoculated
against the virus at birth.
¶ 46 Pointing out these differences would not have furthered
plaintiff’s case very much. For example, Dr. Reiley’s opinion about
the timeframe when herpes-related lesions could appear — two to
twelve days after birth — was consistent with defendants’ position
at trial that the child’s herpes-related lesions appeared nine or ten
days after he was born.
¶ 47 True enough, Dr. Molteni thought that herpes-related lesions
would “crust over” in five to seven days, while Dr. Radetsky said
that the crusting process moved more quickly. Medical charts in
the record show that, when the child was admitted to the hospital
on July 5, he had crusted lesions on his nose, his neck, and his
chest. So Dr. Molteni’s opinion that lesions take several days to
18
crust would have supported plaintiff’s theory that the child had
SEM disease before July 4 or 5.
¶ 48 But plaintiff had also endorsed a second neurologist, Dr.
Dinesh Talwar, who expressed substantially the same opinion as
Dr. Molteni. (Recall that the record does not contain any of the
testimony of plaintiff’s experts. But it includes Dr. Talwar’s expert
disclosure.) Dr. Talwar indicated that “[s]kin lesions of herpes
develop and evolve over a period of time.” The child’s lesions “likely
developed over a period of 5 to 10 days, and it would be highly
unlikely that they developed over only 2 days.” So the record shows
that Dr. Talwar could have made the same point as Dr. Molteni.
¶ 49 Given all of this, we conclude that the record supports the trial
court’s implicit decision that Dr. Reiley’s and Dr. Molteni’s
testimony and the depositions would have been cumulative or
would have had little probative value. See House, 168 F.R.D. at
246; McClendon, 372 P.3d at 495 (“In applying [the House]
balancing test, courts have considered such factors as whether the
testimony would be duplicative or cumulative of other witnesses’
testimony, thus limiting the probative value of that testimony.”); cf.
Rubel, 160 F.R.D. at 460-61 (“[I]t appears to us that the substance
19
of Dr. Hembree’s proposed testimony, even giving the plaintiff the
benefit of the doubt, would overlap very substantially [with] the
testimony of plaintiff’s other witnesses. In consequence, the
evidence in question appears to be cumulative save, of course, for
the fact that Dr. Hembree was retained in the first instance by
Lilly.”)(footnote omitted).
¶ 50 We further conclude that plaintiff was not unfairly prejudiced
by the trial court’s decision to exclude this testimony. He did not
endorse Dr. Reiley and Dr. Molteni in a timely fashion, even though
he had deposed them and he had learned of the substance of their
expert opinions well in advance of trial. We therefore reject
plaintiff’s assertions that he had reasonably relied on the prospect
that defendants would call Dr. Reiley and Dr. Molteni to testify —
even though they were designated as “may call witnesses” — and
that these witnesses’ expert opinions were critical to his case. Cf.
Rubel, 160 F.R.D. at 462 (“Nor can plaintiff fairly be heard to argue
that she relied upon the ability to obtain the evidence from Dr.
Hembree. She did not list Dr. Hembree as a trial witness in the
pretrial order.”). And the prospect that plaintiff was prejudiced is
further undercut by the trial court’s decision to allow him to cross-
20
examine Dr. Radetsky about Dr. Reiley’s and Dr. Molteni’s opinions
in the form of hypotheticals.
¶ 51 In summary, we conclude that the trial court properly applied
the balancing approach described in House, Peterson, and
McClendon. We further conclude that the court did not abuse its
discretion when it denied plaintiff’s requests to call Dr. Reiley and
Dr. Molteni at trial or to use their depositions. We last conclude,
for these same reasons, that the court properly rejected plaintiff’s
motion for a new trial. See, e.g., Acierno v. Garyfallou, 2016 COA
91, ¶ 40 (concluding that the trial court did not abuse its discretion
in denying a motion for a mistrial, and for the same reasons, it did
not abuse its discretion in denying a request for a new trial on the
same grounds).
III. Hearsay Testimony
A. Additional Background
¶ 52 Concerned about the child’s changing behavior on July 4, the
father telephoned a friend who was a licensed medical assistant in a
pediatrician’s office.
¶ 53 At trial, plaintiff sought to offer the medical assistant’s
testimony repeating what the child’s father had said during the
21
telephone call. He argued that this testimony was admissible under
CRE 803(4) because the father’s statements were made for purposes
of medical diagnosis or treatment. As plaintiff’s counsel explained,
[the medical assistant] was – if you will, an
extension of [the pediatrician’s] office. The call
was made to make an appointment to see a
physician. And if I – my recollection is correct
– I believe it is – it was also to get her advice as
to what they should do from a medical
standpoint for [the child], knowing she’s in the
medical field.
¶ 54 The medical assistant said during an offer of proof that she
knew that the child’s father had called her for “[m]edical help.”
A. [The father] had told me that . . . they
were having to wake [the child] up to feed him,
that he was having a difficult time feeding. He
had the blisters on his head, that [he] and [the
child’s mother] didn’t believe the doctor was
correct in his assessment, and they wanted a
second opinion. And they were really worried
about him.
And I told him that, you know, to continue to
wake up [the child] in the middle of the night.
And I would give him a call first thing in the
morning after I talked to [the pediatrician for
whom she worked], and I would get an
appointment to come in and see us.
Q. So did you, in fact, give them medical
advice yourself in terms of what to do and
when to come in?
A. Correct.
22
Q. And did you then understand this was, in
effect, their reaching out to you as someone in
the medical community that they knew who
might try to help them because what they were
being told by their doctor simply wasn’t
satisfying?
A. Correct.
¶ 55 Plaintiff also wanted to introduce the medical assistant’s
statements to the pediatrician for whom she worked, repeating what
the child’s father had said during the telephone call. And he
wanted to present this same testimony through the child’s mother,
who had been in the room when the father had called the medical
assistant.
¶ 56 The trial court excluded this testimony during the trial, ruling
that it was inadmissible hearsay. The court stood by this decision
in its order denying plaintiff’s motion for a new trial.
B. Standard of Review
¶ 57 We review a trial court’s decision to admit or exclude evidence
for an abuse of discretion. See Mullins v. Med. Lien Mgmt., Inc.,
2013 COA 134, ¶ 35. A trial court abuses its discretion if its ruling
is manifestly arbitrary, unreasonable, or unfair, or if the court
23
misapplies the law. Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff’s
Dep’t, 196 P.3d 892, 899 (Colo. 2008).
¶ 58 But, even if the trial court abused its discretion when it
excluded the evidence in this case, we will only reverse the
judgment if we can say “with fair assurance” that the error
“substantially influenced the outcome of the case or impaired the
basic fairness of the trial itself.” Core-Mark Midcontinent, Inc. v.
Sonitrol Corp., 2012 COA 120, ¶ 29 (citations omitted); see In re
Estate of Fritzler, 2017 COA 4, ¶ 7 (noting that an appellate court
will not reverse a judgment if the trial court’s decision to exclude
the evidence was harmless).
C. Law
¶ 59 Hearsay “is a statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” CRE 801(c). As a general rule,
hearsay is not admissible. But there are exceptions in rules and
statutes. See CRE 802.
¶ 60 Statements made for the purpose of medical diagnosis or
treatment are exempted from the rule prohibiting hearsay. See CRE
803(4). For this type of evidence to be admissible, it must (1) be
24
made for purposes of medical diagnosis or treatment; (2) describe
medical history, symptoms, or the inception or cause of symptoms;
and (3) be reasonably pertinent to diagnosis or treatment. Kelly v.
Haralampopoulos, 2014 CO 46, ¶ 20. But statements ascribing
fault are generally not admissible under CRE 803(4), unless the
statements of fault are “necessary for diagnosis and treatment.”
People v. Allee, 77 P.3d 831, 834 (Colo. App. 2003).
D. Application
¶ 61 The father’s statements to the medical assistant fall into two
broad categories: (1) statements describing the child’s symptoms;
and (2) statements expressing dissatisfaction with the care that
defendants had given him.
¶ 62 The latter category of statements clearly does not fall under
CRE 803(4). These statements ascribed fault to defendants, and
they were not necessary to assist in the diagnosis and treatment of
the child’s condition. See id.
¶ 63 But we conclude that the former set of statements fell within
the ambit of CRE 803(4) because the father provided them to the
medical assistant to obtain a diagnosis of and treatment for the
child’s condition; they described his symptoms and his medical
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history; and they were obviously pertinent to the diagnosis and
treatment of his condition. See Kelly, ¶ 20.
¶ 64 Even so, we cannot say with fair assurance that excluding this
testimony substantially influenced the basic fairness of the trial,
see Estate of Fritzler, ¶ 7; Core-Mark Midcontinent, Inc., ¶ 29,
because other witnesses testified about the child’s symptoms and
conditions on July 4.
 The child’s mother testified that, on that day, he did not
eat “as well” and that he was “much sleepier,” even
“lethargic.” The mother and the father had to wake him
to feed him through the “afternoon, evening, and . . .
night.” “He was not eating much, and he was not waking
up on his own to eat.”
 The mother said that the lesions on the child’s head
“were certainly getting bigger” on July 4, and that other
lesions were spreading to his nose and chest.
 A defense expert repeated the mother’s observations that
the child had been lethargic and that he had not eaten
normally on July 4.
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¶ 65 “If evidence that is excluded was also presented through other
testimony or admitted evidence, any error in excluding the
cumulative evidence is harmless and does not constitute reversible
error.” Fritzler, ¶ 12. Because the substance of the statements that
the father made to the medical assistant was admitted through
other witnesses, we conclude that plaintiff was not harmed by the
trial court’s decision to exclude the medical assistant’s testimony.
¶ 66 In reaching this conclusion, we note that defendants did not
contest the testimony about the child’s July 4 symptoms. Their
position was, instead, that the child had developed the
herpes-related lesions on July 4 or 5 after they had examined him.
¶ 67 Since this error was harmless, then, by a parity of reasoning,
any error that the trial court may have made in preventing the
medical assistant from testifying about her statements to the
pediatrician repeating what the father had said during the
telephone call or in preventing the mother from testifying about the
father’s statements was also harmless.
¶ 68 And, based on these conclusions, we further conclude that the
trial court did not abuse its discretion when it denied plaintiff’s
motion for a new trial on these grounds. See Acierno, ¶ 40.
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¶ 69 The judgment is affirmed.
JUDGE DAILEY and JUDGE FOX concur.
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