Colorado Court: Expert Can’t Be Excluded From Malpractice Case

December 7, 2010

The Colorado Supreme Court has ruled that a defense expert can testify in a medical malpractice case even though a defendant failed to produce the raw data that the expert had “considered” in rendering his opinion.

According to court documents in Garrigan v. Bowen, Phillip Garrigan alleged that anesthesiologist Dr. Phillip J. Bowen negligently managed his care during his lumbar spine surgery and caused Garrigan to lose his vision as a result of the surgery.

A trial court struck the testimony of Dr. Lorri A. Lee, one of Dr. Bowen’s expert witnesses, noting it violated the discovery process. Dr. Lee is a lead author on a study about post-operative visual loss, and planned to testify about the publication at trial. Her expert disclosure statement listed the publication as was required, but did not expressly list the study’s underlying raw data as having been considered, court documents state. The trial court concluded that because Dr. Lee had considered the raw study data in forming her opinions for the instant malpractice action and therefore the defendant was required to produce that data when the plaintiff requested it. And when the raw data was not produced, it barred her from testifying at trial.

However, the Supreme Court said, “discovery, including discovery from experts, is not without its limits. … What must be disclosed is not all data and information the expert has ever considered but rather data and information the expert considered while forming her opinions for the case. … To require more suggests that the sources of an expert’s general knowledge are open to limitless discovery, which cannot be the case.”

The high court said in forming her opinions in this case, Dr. Lee relied upon the analysis expressed in the published study, not upon the underlying data. “Nothing in the record before us shows otherwise,” the court said. Therefore, the court ruled it was sufficient for Dr. Bowen to disclose and produce only the published article.

The Supreme Court reversed the lower court’s opinion.

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