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“Harm and Proportionality” Still Applies: The Colorado Supreme Court Clarifies the Sanctions Analysis for Rule 26(a) Violations

In 2015, the Colorado Supreme Court amended Colorado Rule of Civil Procedure 26 on expert reports and disclosures. The amendment essentially made expert reports mandatory, adding language that the court “shall” limit the expert’s testimony to what is disclosed in the report. Once this language was added, a question arose over whether this language trumps Rule 37(c)(1)—the rule about sanctions for discovery abuse. Are courts required to preclude expert testimony if it is not reflected in the report? Or are they free to consider Rule 37(c)(1)’s “harm and proportionality” standard? In Catholic Health v. Swensson, the Colorado Supreme Court clarifies this point, and explains what rule controls when an expert report does not conform to the rules’ requirements.1

Catholic Health v. Swensson: A Fight Over the Sufficiency of an Expert Report

The case involved a breach of contract dispute against an architectural firm in connection with the design of a new hospital. The main thrust of the case was that the architects failed to design the hospital such that it could have a separate Ambulatory Surgery Center.

During the course of the litigation, Catholic Health filed an expert disclosure, endorsing a specific expert to testify about the cost of adding an Ambulatory Surgery Center to the hospital. The expert report primarily relied on the expert’s experience and so did not include detailed facts or figures on how the expert arrived at the estimated $11 million it would cost to add the Surgery Center.

A dispute later arose over the sufficiency of this expert report. The architectural firm filed a motion to strike the expert designation, arguing that because the report was deficient, Colorado Rule of Civil Procedure 26(a) required that the expert’s testimony be limited. In this case, without the expert’s testimony, Catholic Health would be essentially unable to present any evidence on these damages.

Faced by what appeared to be seemingly mandatory language in Rule 26(a), the trial court agreed with the architectural firm, excluded the expert’s report from evidence, and precluded the expert from testifying. The trial court reasoned that C.R.C.P. 26(a)(2)(B)(I), as amended in 2015, changed how courts should respond to these violations. Accordingly, Rule 37(c)(1)—the rule about sanctions for discovery violations—did not play a part in its analysis. Catholic Health petitioned under C.A.R. 21 for immediate review, and the Supreme Court took up the case.

Colorado’s Rule 26 Requirements and the 2015 Amendments

Back in 2015, the Supreme Court amended Rule 26—the rule that, among other things, requires expert disclosures in litigation. Prior to 2015, in addition to requiring expert disclosures, the pertinent part of the rule stated: “In addition, if a report is issued by the expert it shall be provided.”2

The 2015 changes to the Rule modified that language to read as follows: “The witness’s direct testimony shall be limited to matters disclosed in detail in the report.”3 Whereas expert reports were not previously mandatory under the rule, now they are required. But the amendments also created some confusion over whether a party would really be limited to what was disclosed in a report where doing so would essentially be a sanction—precluding an expert from testifying at all, for example.

C.R.C.P. 37(c)(1), the rule governing sanctions for discovery disclosure violations, was also amended in 2015. The amendments to that rule now emphasize that preclusion of evidence is the remedy for failure to disclose under Rule 26(a) “unless such failure has not caused and will not cause significant harm, or such preclusion is disproportionate to that harm.”

The question before the Court in this case was whether the 2015 amendments to Rule 26(a) changed the fact that a court should use Rule 37 when issuing sanctions. In other words, did the 2015 amendments create a mandatory exclusionary rule in Rule 26(a) that controls over Rule 37?

The 2015 Amendments Did Not Change the Fundamental Relationship Between Rule 26(a) and Rule 37(c)

Justice Boatright, authoring the opinion for a unanimous court, explained that the 2015 amendments did nothing to change the relationship between Rule 26(a) and Rule 37(c). Now, as before, “Rule 37(c)(1) works in conjunction with Rule 26 to authorize the trial court to sanction a party for failing to comply with discovery requirements, including those found in Rule 26(a).”4 So, courts should look to Rule 37(c)(1)’s standard when determining whether preclusion of evidence as a sanction for failure to comply with Rule 26(a) is warranted. The fact that Rule 26(a) states that an expert’s testimony “shall be limited” to what is in the report does not mean that courts shouldn’t consider Rule 37(c)(1) when issuing such a preclusive sanction.

So, while the language in Rule 26(a) may seem absolute, it doesn’t create an automatic exclusionary rule. Instead, when courts are issuing sanctions for violations under it, they are to be primarily guided by Rule 37. Rule 37 requires conducting a proportionality analysis. Because the trial court did not perform the requisite harm and proportionality analysis, the Supreme Court made the rule to show cause absolute and sent the case back for the trial court to apply Rule 37(c)(1). This gave the hospital a chance, but not a guarantee, to preserve evidence on damages.

Conclusion

The outcome of this appeal makes clear that sanctions for discovery violations must be considered under Rule 37. The new version of Rule 26(a) did not create a rule of automatic exclusion any time a party files an inadequate expert report—despite the seemingly mandatory nature of the 2015 amendment language. Catholic Health v. Swensson forecloses the argument that the plain language of the rule requires preclusion in every case. Instead, before sanctions like those can be imposed, the court must consider Rule 37’s harm and proportionality standard. Still, it is best to avoid this risk by making sure that expert reports contain all the evidence needed.

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1 Catholic Health v. Swensson, 2017 CO 94.
2 Id. at ¶ 10 (quoting C.R.C.P 26(a)(2)(B)(I) (2014)).
3 Id. (quoting C.R.C.P. 26(a)(2)(B)(I)).
4 Id. at ¶ 11.
Featured Image: "Unnamed" by Mari Helin-Tuominen on Unsplash.
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