                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUL 23 2003
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

CHRISTOPHER E. HARTNETT;
LACEY HARTNETT and GABRIEL
HARTNETT, minor children, by parent
and next friend, Christopher E.
Hartnett,

             Plaintiffs - Appellants,
                                                       No. 01-1470
v.                                                 (D.C. No. 98-B-2812)
                                                      (D. Colorado)
P. TERRENCE O’ROURKE, M.D.;
COLORADO SPRINGS SURGICAL
ASSOCIATES, P.C.,

            Defendants - Appellees.


                           ORDER AND JUDGMENT           *




Before HENRY , BRORBY , and LUCERO , Circuit Judges.


      Christopher Hartnett, Lacey Hartnett, and Gabriel Hartnett filed this

diversity medical malpractice action after Dawn Hartnett (the wife of Christopher

and the mother of Lacey and Gabriel) died following abdominal surgery



      *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
performed by the defendant Terrence O’Rourke, M.D., at Penrose Hospital. 1 The

Hartnetts alleged that Dr. O’Rourke had failed to comport with the applicable

standard of care by applying only one ligature of the splenic artery, which led to a

massive hemorrhage, and, ultimately brain death. They asserted that Dr.

O’Rourke’s employer, Colorado Springs Surgical Associates, was vicariously

liable for his negligence and that other medical personnel at Penrose Hospital had

acted negligently during Dawn Hartnett’s surgery and post-operative care. 2

      The district court granted summary judgment to Dr. O’Rourke and his

employer, relying on deposition testimony from Dr. O’Rourke and the surgeon

who assisted him, both of whom testified that Dr. O’Rourke had used two

ligatures on the splenic artery. The court also concluded that the facts did not

warrant the application of the doctrine of res ipsa loquitur In a separate order that

is also challenged in this appeal, the district court denied the Hartnetts’ request to

inspect medical records pertaining to other surgeries performed by Dr. O’Rourke.

      Upon review of the record, we conclude that the Hartnetts have offered

sufficient evidence in support of their one-ligature theory to render summary

judgment unwarranted. We therefore vacate the district court’s judgment and

      1
       At the time, Penrose Hospital was operated by Catholic Health Initiatives
Mountain Region, an entity that the Hartnetts also named as a defendant in their
complaint.
      2
        The Hartnetts’ claims against Penrose Hospital were subsequently
resolved and are not at issue in this appeal.

                                          -2-
remand the case for further proceedings. However, we further conclude that the

district court did not err in refusing to apply the doctrine of res ipsa loquitur. We

do not address the Hartnetts’ challenge to the district court’s refusal to allow

inspection of the records of other surgeries, allowing the parties to revisit that

issue in the subsequent district court proceedings.



                                 I. BACKGROUND

      We begin with a description of Dawn Hartnett’s surgeries. Then, we

outline the proceedings in the district court.

                            A. Dawn Hartnett’s Surgery

      In December 1996, Dawn Hartnett, a 31-year-old mother of two, was

diagnosed with a pancreatic mass. On January 3, 1997, the defendant Dr.

Terrence O’Rourke performed surgery on Mrs. Harntett, removing her spleen,

60% of her pancreas, and a benign cyst. In order to prevent further bleeding, Dr.

O’Rourke ligated the splenic artery. The parties agree that, in performing this

procedure, the appropriate method is to apply a double ligature.

      Both Dr. O’Rourke and the vascular surgeon who assisted him in the

operation, Dr. William C. Chambers, Jr., testified in their depositions that Dr.

O’Rourke applied a double ligature. However, Dr. O’Rourke’s post-operative

notes do not expressly refer to a double ligature. The notes state:


                                          -3-
            Splenic artery was ligated as it came off the celiac and
            splenic vein ligated as it terminated into the portal vein.

Aplts’ App. at 119 (emphasis added).

      Initially, the surgery appeared to be successful, and Mrs. Hartnett was

transferred to the recovery room in stable condition. However, two hours later,

Mrs. Hartnett suffered massive internal bleeding and lost consciousness. In an

emergency surgical procedure, Dr. O’Rourke reopened the abdominal incision,

observed bleeding from the splenic artery and the tumor bed, and removed a large

volume of blood. His post-operative notes describe this second operation as

follows:

            There was approximately 1500 cc of clotted blood within
            the abdomen which was rapidly removed. Pressure was
            applied to the area of the previous dissection. Once the
            patient was stabilized, it could be seen that there was
            bleeding from the splenic artery. This was controlled with
            a clamp and suture ligatures. In addition, there were
            multiple sites of bleeding in the tumor bed from small
            veins. These were controlled with suture ligation, clipping,
            and pressure. There were numerous sutures of 5-0 Prolene
            and suture ligatures of 3-0 silk.

                   The patient became progressively stable throughout
            the procedure . . . . .

                   Sterile dressings were applied, and the patient was
            brought back to the intensive care unit in critical, but
            stable condition.

Id. at 120 (emphasis added).



                                        -4-
      Despite these efforts, Mrs. Hartnett suffered ischemic encephalopathy

(brain injury from decreased blood flow) and never regained consciousness. A

neurologist later concluded that she had suffered irreversible brain damage. The

family elected to discontinue life support, and, tragically, Mrs. Hartnett died on

January 9, 1997.



                         B. The District Court Proceedings

      The Hartnetts filed this diversity action against Dr. O’Rourke, Colorado

Springs Surgical Associates, P.C., and Catholic Health Initiatives Mountain

Region, asserting claims for negligence and lack of informed consent. The

Hartnetts’ negligence theory was based primarily on Dawn Hartnett’s medical

records and on the testimony of their expert, Dr. Mark Gordon, a general surgeon

who reviewed Dawn Hartnett’s medical records, wrote a report and an affidavit,

and gave deposition testimony. Dr. Gordon’s June 23, 1999 report states:

             There are several points in this case that do not meet the
             standard of care. Slippage of splenic artery free ties are
             known to occur and given a case where there is significant
             inflammation and difficulty with splenectomy [,] a double
             ligature including a distal suture ligature should have been
             utilized. Regarding the nursing care, vital signs, including
             central venous pressure and arterial line monitoring in a
             patient undergoing surgery of this magnitude was not
             performed. This is a breach of the standard of care. The
             nurses were not in close attendance and the resuscitation
             effort was slow and ineffective, resulting in prolonged
             hypotension and severe brain damage. The intensive care

                                         -5-
                nursing in this case was woefully inadequate and the
                response to the acute emergency of cardiovascular collapse
                and shock was below the standard and resulted in the death
                of this patient. There can be no justification for this to
                have occurred in a close monitored situation such as the
                intensive care unit.

Id. at 42-43.

       In deposition testimony, Dr. Gordon explained that his conclusion that a

double ligature was not used was based on his interpretation of Dr. O’Rourke’s

notes after the two surgeries:

                I have two operative notes. I have the note of the original
                surgery and I have the note of approximately three hours
                later, a little less than that when the patient is back in the
                operating room being reexplored for massive hemorrhage.
                The first operative note doesn’t mention double ligation,
                it says ligated and it’s very specific about that. Says
                ligated the artery, ligated the vein and then the second
                operative note says there was adequate room to get a
                double ligature on when we went back. Given that type of
                language, it’s natural for me to interpret it verbatim.

Id. at 87.

       Dr. Gordon also explained that his conclusion was based in part on his

knowledge of how surgical notes are typically written. Finally, Dr. Gordon stated

that if in fact Dr. O’Rourke had double ligated the splenic artery, it was unclear to

Dr. Gordon how the artery could have ruptured. He explained that “a doubly

ligated vessel and particularly a doubly ligated vessel that’s distally suture ligated

doesn’t slip. This is a very unusual case.” Id.


                                             -6-
       In contrast, the defendants presented testimony indicating that ligatures

may fail (and arteries rupture) for many reasons. In particular, Dr. Jack

Pickelman testified that “possible explanations” for the bleeding of Mrs.

Hartnett’s splenic artery after the surgery included “[t]he ligatures . . . com[ing]

off, . . . the sutures . . . fail[ing], or the ligatures . . . in and of themselves

damag[ing] the artery, cut[ing] through the artery.” Id. at 123. Dr. Bruce L.

Gewertz testified that “one possib[le] [cause of the bleeding] is that the ties cut

through the artery, that the splenic artery was thin and/or inflamed and that with

the constant arterial pressure of the several hours after surgery that the artery was

necrosed or fell apart at the point of ligature.” Id. at 125. According to Dr.

Gewertz, other possible explanations were that “[t]he knot could have come

undone” or “[t]he suture could have broken.” Id.

       Another defense expert, Dr. William Fry, stated that the pulsations of the

splenic artery could have possibly caused the bleeding. See id. at 127. Dr. Fry

also explained that Mrs. Hartnett could have had a seizure. Id. at 128.

       Finally, Dr. Ihor J. Fedorak listed the following possible causes of the

bleeding: “failure of th[e] ligation,” “mechanical failure of the suture material,”

and “erosion of the suture material through an inflamed splenic artery wall.” Id.

at 130. According to Dr. Fedorak, the latter was the most likely cause because “it




                                              -7-
fits with the time course of Ms. Hartnett’s collapse.” Id. 3

      After the parties conducted discovery, the defendants moved for summary

judgment, primarily on the grounds that Drs. O’Rourke and Chambers both

testified that Dr. O’Rourke used two ligatures on the splenic artery during the

first surgery and that the expert testimony indicated that there were many possible

causes of the bleeding. The district court accepted both arguments and granted

summary judgment to the defendants on the Hartnetts’ negligence claim against

Dr. O’Rourke and Colorado Springs Surgical Associates.

      The Hartnetts then filed a motion to reconsider the summary judgment

ruling. They attached an affidavit of Dr. Gordon in which he made additional

statements about the possible causes of the bleeding. The district court denied the

motion.



                                  II. DISCUSSION

      On appeal, the Hartnetts argue that the district court erred in granting

summary judgment to Dr. O’Rourke for three reasons. First, they contend that

there is evidence in the record indicating that Dr. O’Rourke used only one ligature


      3
         Dr. Fedorak explained that “ [i]f there were to be an immediate problem
with the technique of the ligation of the vessels or an inadequacy of the ligation
of the vessels, I suspect the bleeding would have presented much earlier, in the
recovery room or prior to the completion of the [surgical] case.” Aplts’ App. at
130.

                                          -8-
on Mrs. Hartnett’s splenic artery. Combined with evidence that the appropriate

standard of care requires two ligatures, the Hartnetts argue that a reasonable juror

could conclude that Dr. O’Rourke’s negligence caused Mrs. Hartnett’s fatal

complications. The Hartnetts further contend that the district court erred in

refusing to apply the doctrine of res ipsa loquitur to support their negligence

claim.

         Finally, the Hartnetts also challenge one of the district court’s discovery

rulings. They argue that the court erred in refusing to grant their motion to

compel the production of Dr. O’Rourke’s notes regarding other surgeries.



                             A. Summary Judgment Ruling

         We review the grant of summary judgment de novo, applying the same

standard as the district court pursuant to Rule 56(c) of the Federal Rules of Civil

Procedure. See Tool Box v. Ogden City Corp., 316 F.3d 1167, 1173 (10th Cir.

2003). Summary judgment is appropriate if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

view the record in the light most favorable to the nonmoving party, see Tool Box,

316 F.3d at 1173, considering factual inferences tending to show triable issues in


                                            -9-
the light most favorable to the existence of those issues. See Riley v. Brown &

Root, Inc., 896 F.2d 474, 476 (10th Cir. 1990).

      “Where different ultimate inferences may properly be drawn, the case is not

one for a summary judgment.” Luckett v. Bethlehem Steel, Corp., 618 F.2d 1373,

1377 (10th Cir. 1980). Thus, at the summary judgment stage, the court may not

“assess the credibility of . . . conflicting testimony.” Starr v. Pearle Vision, Inc.,

54 F.3d 1548, 1557 (10th Cir. 1995); see also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of evidence,

and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge, whether he is ruling on a motion for summary judgment or for a

directed verdict.”). Moreover, “the jury’s unique competence in applying the

‘reasonable man’ standard is thought ordinarily to preclude summary judgment in

negligence cases.” TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 450

n.12 (1976) (citing 10 Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure: Civil § 2729 (1973)).

      In this diversity action, we apply the substantive law of Colorado. Grant v.

Pharmacia & Upjohn Co., 314 F.3d 488, 491 (10th Cir. 2002). Under Colorado

law, a plaintiff establishes a prima facie case of negligence by proving the

following elements: (1) the existence of a legal duty owed to her by the

defendant; (2) a breach of that duty, (3) injury to the plaintiff, and (4) a causal


                                          -10-
relationship between the defendant’s breach and the plaintiff’s injury. See

Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 929 (Colo. 1997).

      Here, the dispute concerns only the second element—whether Dr. O’Rourke

breached the duty of care that he owed to Mrs. Hartnett. Moreover, even as to

that element, the parties agree that as a physician holding himself out as a

specialist in the field of surgery, Dr. O’Rourke owed Mrs. Hartnett a duty of care

commensurate with that of a reasonable physician practicing in that field. See

generally Kaiser Foundation Health Plan of Colorado v. Sharp, 741 P.2d 714, 718

(Colo. 1987). The parties also do not dispute that in these circumstances, a

reasonable surgeon would have applied two ligatures to Mrs. Hartnett’s splenic

artery, and that, if indeed Dr. O’Rourke only applied one ligature, a reasonable

jury could conclude that Dr. O’Rourke breached his duty of care and that there

was a causal connection between this breach and Mrs. Hartnett’s injuries and

death. Accordingly, the issue of whether summary judgment was warranted turns

on whether the Hartnetts offered sufficient evidence that Dr. O’Rourke did not

apply two ligatures.




1. Evidence of a Single Ligature


                                         -11-
      The Hartnetts first argue that there is evidence in the record directly

indicating that Dr. O’Rourke applied only one ligature to Mrs. Hartnett’s splenic

artery. In advancing this argument, the Hartnetts rely primarily on Dr.

O’Rourke’s notes regarding the initial surgery, which state that the splenic artery

“was ligated.” Aplts’ App. at 119. The Hartnetts contrast that description with

Dr. O’Rourke’s notes regarding the second surgery, which refer to his having

applied “suture ligatures.” Id. at 120 (emphasis added). The Harnetts contend

that from the specific use of the plural in the second set of notes, a factfinder

could conclude that, when Dr. O’Rourke stated in the first set of notes that the

artery “was ligated,” he meant that he applied only one ligature.

      The Hartnetts also rely on the testimony of their expert, Dr. Gordon. As we

have noted, Dr. Gordon explained in deposition testimony that his opinion that

Dr. O’Rourke had applied only one ligature to the splenic artery during the first

surgery was based on a review of Dr. O’Rourke’s notes. Dr. Gordon also

explained that his conclusion was based in part on his knowledge of how surgical

notes are typically written. He stated that “[b]ecause of the nature of a suture

ligature, one usually places a second ligature proximal to the suture ligature and

in the course of the dictation, one usually dictates it was doubly ligated.” Id. at

86. When asked whether “the specificity of operative dictations can vary from

report to report with the same surgeon,” Dr. Gordon responded:


                                          -12-
             That I don’t know. I know in my own case and I have to
             go from personal experience and from other operative
             notes that I’ve read that in general, surgeons use the same
             type of language most of the time for the report. As I said,
             in terms of ligature, ligated or doubly ligated are pretty
             standard terminology for most surgeons.

Id. at 87.

       Finally, the Hartnetts point to the following deposition testimony of Dr.

Chambers, the surgeon who assisted Dr. O’Rourke in the initial operation:

             I recall he [Dr. O’Rourke] used a silk suture ligature on
             the splenic artery. He ligated the smaller pancreatic veins
             with, I believe, a 5-0 or 4-0 Prolene, and then he used a
             free tie on the –to follow that on the splenic artery of silk.

Id. at 34. According to the Hartnetts this testimony indicates that Dr. O’Rourke

applied only one ligature. See Aplts’ Reply Br. at 3 (contending that “with both

references to the silk suture, [Dr. Chambers] [is] referring to one and the same

suture”).

       In response, Dr. O’Rourke invokes his own deposition testimony and that

of Dr. Chambers. As to the latter, Dr. O’Rourke contends that the Hartnetts’

interpretation is not plausible. He maintains that because a “suture ligature” and

“free tie” are two different kinds of ligatures, Dr. Chambers’ account cannot be

reasonably read to support the Hartnetts’ one-ligature theory.

       We agree that the deposition testimony of Dr. O’Rourke indicates that he

applied two ligatures to Mrs. Hartnetts’ splenic artery. In particular, Dr.


                                          -13-
O’Rourke testified that, although his notes of the first surgery do not describe the

number of ligatures, he remembers that he did doubly ligate Mrs. Hartnett’s

splenic artery. He added, “With major arteries, I always doubly ligate.” Aplts’

App. at 30.

      As to Dr. Chambers’ testimony, we note that, in describing the first

surgery, he referred to two different kinds of ligatures—a “suture ligature” and a

“free tie.” See Aplts’ App. at 34; see also Alton v. Kitt, 431 N.E.2d 417, 421 (Ill.

App. 1982) (noting the distinction between suture ligatures and free ties). The

Hartnetts’ contention that Dr. Chambers’ testimony supports their theory is thus

not plausible: his testimony does indicate that Dr. O’Rourke used two ligatures.

      Nevertheless, the testimony of Dr. O’Rourke and Dr. Chambers is not the

only evidence in the record regarding the number of ligatures. As noted above,

Dr. O’Rourke’s written account of the first surgery undermines his own

testimony. Not only did he use a phrase— “was ligated”—that is consistent with

only one ligature having been applied, but he also used the plural “sutures” in the

description of other phases of the first surgery. See Aplts’ App. at 119 (stating

that “subcutaneous tissue [was] irrigated with Betadine and closed with

interrupted sutures of 3-0 Vicryl”) (emphasis added). Moreover, as the Hartnetts

have observed, Dr. O’Rourke used the plural in describing his repair of the

splenic artery during the second surgery. See id. at 120 (stating that “bleeding


                                         -14-
from the splenic artery . . . was controlled with a clamp and suture ligatures”)

(emphasis added). The notes of the second surgery also use the plural in

describing other ligatures. See id. (stating that “subcutaneous tissue was irrigated

with Betadine and closed with interrupted sutures of 3-0 Vicryl”) (emphasis

added). This specific use of the plural to describe other ligatures provides

support for the Hartnetts’ contention that the phrase “was ligated” was used by

Dr. O’Rourke to refer to one ligature.

      Dr. Gordon’s testimony also undermines the testimony of Drs. O’Rourke

and Chambers regarding the number of ligatures. Dr. Gordon stated that when a

surgeon applies two ligatures to an artery, “one usually dictates [that the artery]

was doubly ligated” and that “ligated or doubly ligated are pretty standard

terminology for most surgeons.” Id. at 86-87. Thus, according to Dr. Gordon, the

use of the phrase “was ligated” in the notes of the first surgery, when contrasted

with the reference to the application of “sutures” to the splenic artery in the notes

of the second surgery, supports the conclusion that Dr. O’Rourke used only one

ligature.

      In granting summary judgment to the defendants, the district court

characterized Dr. O’Rourke’s notes as “ambiguous,” but the court added that “Dr.

Gordon’s assumptions based on [the notes] are not sufficient to create a genuine

issue of material fact.” See id. at 165 (District Court Order filed Aug. 2, 2000).


                                         -15-
According to the district court, “[t]he Hartnetts have presented no credible

evidence that the artery was not doubly ligated.” Id. The court cited cases in

which experts’ conclusory opinions, based on evidence not in the record, were

held insufficient to defeat summary judgment. See id. (citing Evers v. General

Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985); American Key Corp v. Cole

Nat’l Corp., 762 F.2d 1569, 1580 (11th Cir. 1985), and Merit Motors Inc. v.

Chrysler Corp., 569 F.2d 666, 672-74 (D.C. Cir. 1974)). In so concluding, the

district court misread the record evidence and did not properly apply the

governing principles regarding summary judgment motions.

      As to the record, we note that, unlike the expert opinions in the cases cited

by the district court, Dr. Gordon’s opinion was based upon evidence presented to

the district court—Dr. O’Rourke’s own notes—as well as Dr. Gordon’s view that

“one usually dictates [that the artery] was doubly ligated” and that “‘ligated’ or

‘doubly ligated’ are pretty standard terminology for most surgeons.” Aplts’ App.

at 86-87 That evidence from Dr. Gordon and Dr. O’Rourke’s own notes is

arguably inconsistent with the deposition testimony of Drs. O’Rourke and

Chambers regarding the number of ligatures and raises a question of whether the

latter testimony is credible. Cf. Sealock v. Colorado, 218 F.3d 1205, 1212 (10th

Cir. 2000) (reversing the grant of summary judgment in light of inconsistency

between medical records and defendant’s testimony).


                                         -16-
      In light of the Hartnetts’ evidence, the district court’s reliance on the

deposition testimony of Drs. O’Rourke and Chambers constituted a “[c]redibility

determination[], [a] weighing of evidence, and [a] drawing of . . .inferences from

the facts,” functions properly performed by the jury rather than “[the] judge

[when] he is ruling on a motion for summary judgment.” Anderson, 477 U.S. at

255; see also Starr, 54 F.3d at 1557 (stating that, at the summary judgment stage,

the court may not “assess the credibility of . . . conflicting testimony”).

When viewed in the light most favorable to the Hartnetts (the non-moving

parties), see Tool Box, 316 F.3d at 1173, Dr. O’Rourke’s notes and Dr. Gordon’s

testimony provide evidence from which a reasonable juror could conclude by a

preponderance of the evidence that Dr. O’Rourke applied only one ligature to the

splenic artery during the first surgery and that, as a result, he failed to exercise a

duty of care commensurate with that of a reasonable physician practicing in the

field. See Kaiser Foundation, 741 P.2d at 718.

      To be sure, a reasonable juror could also find Dr. O’Rourke’s and Dr.

Chambers’ account of the first surgery entirely credible, concluding that Dr.

O’Rourke applied two ligatures and that the use of the phrase “was ligated” in the

notes of the first surgery was merely an abbreviated way in which to describe the

application of more than one ligature. However, such matters should be resolved

by the factfinder at trial rather than on summary judgment. See Anderson, 477


                                          -17-
U.S. at 255. Accordingly, we conclude that the district court erred in granting

summary judgment to Dr. O’Rourke on the Hartnetts’ negligence claim.



2. Res Ipsa Loquitur

      The Hartnetts also argue that the district court erred in refusing to allow

them to present their case to a jury on the theory of res ipsa loquitur.

      As the parties note, in order to establish a prima facie case of res ipsa

loquitur under Colorado law, the plaintiffs must establish that (1) the event is the

kind which ordinarily does not occur in the absence of negligence; (2) possible

causes other than the defendant’s negligence are sufficiently eliminated by the

evidence; and (3) the indicated negligence was within the scope of the

defendant’s duty to the plaintiff. See Holmes v. Gamble, 655 P.2d 405, 408

(Colo. 1982). The plaintiffs must present evidence that, when viewed in the light

most favorable to them, “establishes that the existence of each element of that

doctrine is more probable than not.” Id. at 409.

      In order to establish these elements, the plaintiffs need not eliminate every

possible cause other than the defendant’s negligence. Ravin v. Gambrell ex rel

Eddy, 788 P.2d 817, 822 (Colo. 1990); see also Montgomary Elevator Co. v.

Gordon, 619 P.2d 66, 69 (Colo. 1980) (“‘The plaintiff is not required to exclude

all other possible conclusions beyond a reasonable doubt, and it is enough that he


                                          -18-
makes out a case from which the jury may reasonably conclude that the

negligence was more probably than not, that of the defendant.” quoting

Restatement (Second) of Torts § 328D, Comment f). However, “[w]hen it can,

with equal reasonableness, be inferred that the accident in question was due to

another cause than the negligence of the defendant, the doctrine cannot be

invoked.” Bettner v. Boring, 764 P.2d 829, 832 n.2 (Colo. 1988) (internal

quotation marks and emphasis omitted); see also Holmes, 655 P.2d at 408-09

(noting that “[w]here the probabilities are at best evenly balanced between

negligence and its absence, it becomes the duty of the court to direct a verdict for

the defendant” and finding the doctrine inapplicable when “it [was] at least

equally likely that a cause other than the defendant’s negligence was the basis of

[the plaintiff’s] injury”).

       The doctrine of res ipsa loquitur has most often been applied when the

existence of the first element—that the event is the kind which ordinarily does not

occur in the absence of negligence—is apparent. See Holmes v. Gamble, 624

P.2d 905, 907 (Colo. Ct. App. 1980), aff’d, 655 P.2d 405 (Colo. 1982) (stating

that “[t]he doctrine . . . has been applied in medical malpractice cases where the

cause of the injury or damage is so apparent that laymen are equally as able as

experts to conclude that such things do not happen in the absence of negligence”

and citing as examples of cases in which the doctrine applies, a surgeon’s leaving


                                         -19-
a sponge inside a patient and the expulsive loss of an eye during cataract surgery).

However, more recent cases have held that this element may be satisfied by expert

testimony. See generally Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d

86, 93-94 (Tenn. 1999) (observing that “[i[n a majority of states which have

addressed this issue, medical malpractice claimants are allowed to come forward

with expert testimony to support a res ipsa inference” and adopting the majority

rule). Colorado decisions have followed the majority rule. See, e.g., Holmes, 624

P.2d at 907 (stating that because “it cannot be inferred from the injury itself that

it could not have occurred without negligence on the part of the defendants . . .

expert testimony on that issue is necessary before the doctrine of res ipsa loquitur

can be applied”).

      Here, the Hartnetts argue that the res ipsa loquitur doctrine is applicable

and renders summary judgment to Dr. O’Rourke unwarranted. They invoke Dr.

Gordon’s testimony that “a double ligated vessel that’s distally suture ligated

doesn’t slip” and that “this is a very unusual case.” Aplts’ App. at 87. The

Hartnetts also cite statistics regarding the likelihood of complications from the

type of surgery at issue. See Aplts’ Br. at 26 (citing statement from a medical

journal that distal pacreatectomies have “a post-operative mortality rate of only

0.9%, with a post-operative hemorrhage complication occurring in only 4% of the

cases”). The Hartnetts also invoke Dr. O’Rourke’s statement of reassurance to


                                         -20-
them before the surgery—that up to 400 of these operations had been successfully

performed.

      Upon review of the expert testimony regarding the possible causes of the

bleeding of Mrs. Hartnett’s splenic artery, we agree with the district court that,

even when the record is viewed in the light most favorable to the Hartnetts, the

evidence is insufficient to submit the case to the jury under the doctrine of res

ipsa loquitur. As noted above, the defendants’ experts offered several alternative

explanations of the bleeding. In light of those possible explanations, the general

statements of Dr. Gordon regarding the rarity of the kind of bleeding suffered by

Mrs. Hartnett are insufficient to support the inference by a preponderance of the

evidence that Mrs. Hartnett’s splenic artery bled because Dr. O’Rourke applied

only one ligature. Thus, as to the Hartnetts’ res ipsa loquitur claim, “the

probabilities are at best evenly balanced between negligence and its absence.”

Holmes, 655 P.2d at 408-09. Similarly, the statistical evidence cited by the

Hartnetts, although establishing that this tragic outcome was unusual, does not

establish that Dr. O’Rourke’s negligence was probably the cause. Cf. Quin v.

George Washington Univ., 407 A.2d 580, 584 (D.C. 1979) (affirming the trial

court’s refusal to instruct the jury on a res ipsa loquitur theory because “a review

of the evidence shows [that] two equally plausible conclusions were deducible,

[i]. e., the hole in the splenic vein arose from improper ligation by the surgeons,


                                         -21-
or from natural causes (spontaneous rupture)” and “[t]he presence of conflicting

medical testimony indicates a lack of consensus in the medical field as to the

cause of abdominal hemorrhaging following a splenectomy, despite agreement

that such hemorrhaging is a rarity”).

      Accordingly, we conclude that the district court properly held that the

doctrine of res ipsa loquitur is inapplicable to the Hartnetts’ negligence claim

against Dr. O’Rourke.



                  B. Denial Of The Hartnetts’ Motion to Compel

      Finally, the Hartnetts argue that the district court erred in denying their

motion to compel production of notes from Dr. O’Rourke’s prior surgeries. We

owe considerable deference to the district court’s rulings on discovery matters,

reviewing its decisions only for an abuse of discretion. Soma Med. Int’l v.

Standard Chartered Bank, 196 F.3d 1292, 1300 (10th Cir. 1999). “Under this

standard, a trial court’s decision will not be disturbed unless the appellate court

has a definite and firm conviction that the lower court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.”

Nieto v. Kapoor, 268 F.3d 1208, 1221 (10th Cir. 2001) (internal quotation marks

omitted).




                                         -22-
       Here, the procedural posture in which this issue was raised is relevant to

its appropriate disposition. In particular, the record indicates that after the

Hartnetts requested these records, the defendants objected on the grounds that

production of the documents would be unduly burdensome. The Hartnetts then

filed a motion to compel production of the documents. The defendants filed an

objection to the motion, arguing in part, that the Hartnetts had failed to engage in

reasonable, good faith efforts to confer with opposing counsel to resolve the

disputed matter, as required by a local rule of the Colorado federal district court

and Fed. R. Civ . P. 37. In particular, the defendants reported that:

             In their Motion to Compel, Plaintiffs claim that an attempt
             was made to comply with D.C. Colo. L.R. 7.1 by sending
             a letter to counsel for Dr. O’Rourke by facsimile “to
             attempt to discuss this matter but was unable to speak with
             him.” On February 14, 2000, the day Plaintiffs’ Motion to
             Compel was mailed, counsel faxed a letter stating: “We are
             getting ready to file our Motion to Compel the production
             of Dr. O’Rourke’s Operative Reports pertaining to prior
             surgeries. If there is a chance we could resolve this
             without filing a motion, please call my office today and
             ask for either [counsel’s paralegal or secretary].” . . . This
             eleventh hour letter, placing the burden on Defendant’s
             counsel to contact Plaintiffs’ counsel, cannot be
             characterized as “reasonable, good faith efforts to confer
             with opposing counsel to resolve the disputed matter.”
             D.C. Colo. L.R. 7.1(A). Defense counsel did in fact call
             and was informed Mr. Carey [one of the lawyers for the
             Hartnetts] was out of state and Mr. Rector [the other
             lawyer for the Hartnetts] was away from the office. No
             return call was received from plaintiff counsel.

Aplee Supp. App. at 6.

                                          -23-
      In denying the Hartnetts’ motion to compel, the district court cited the

Colorado local rule and Fed. R. Civ. P. 37. The court also concluded that the

request for other operative reports was unduly burdensome.

      In our view, it is unclear from this record whether the production of these

potentially important records would be unduly burdensome. However, the district

court’s reliance on the procedural rules requiring the moving party to seek out-of-

court resolution of discovery disputes (D.C. Colo. L.R. 7.1(A) and Fed. R. Civ. P.

37) is within the court’s province.

      Moreover, the Hartnetts’ opening brief fails to challenge the district court’s

finding that the Hartnetts failed to comply with these rules. See Aplts’ Br. at 29

(arguing that the district court abused its discretion in denying the motion to

compel production of Dr. O’Rourke’s notes but failing to address the district

court’s ruling that the Hartnetts failed to comply with D.C. Colo, L.R. 7.1(A) and

Fed. R. Civ. P. 37 before filing their motion to compel). Because the Hartnetts

did not raise the issue in their opening brief, they have waived it. See State Farm

Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). 4


      4
         In their reply brief, the Hartnetts do present an argument that they
complied with the requirement that they confer with opposing counsel before
filing their motion to compel. In particular, they contend that before they filed
the motion, they attempted to call defendants’ counsel and that when that proved
unsuccessful, they faxed a letter to opposing counsel requesting that the
defendants’ counsel speak to one of the Hartnetts’ counsel’s paralegals if they
                                                                       (continued...)

                                         -24-
      Accordingly, we will not review the district court’s denial of the Hartnetts’

motion to compel, based upon their failure to comply with D.C. Colo. L.R. 7.1(A)

and Fed. R. Civ. P. 37. The defendants substantive objection to the Hartnetts’

discovery request (that the request was unduly burdensome) is also not properly

before us.

      Nevertheless, we note that the documents sought by the Hartnetts could be

quite significant: If notes from other surgeries established that Dr. O’Rourke

usually employed the phrase “double ligature” or a similar term when he applied

two ligatures, then his failure to do so in the notes of the first surgery here would

constitute some evidence that he only used one ligature, thus supporting the

Hartnetts’ contention. On the other hand, if in the notes of other surgeries Dr.

O’Rourke regularly used the phase “was ligated” to indicate that he applied more

than one ligature, then these notes could provide support for his testimony that he

used two ligatures in Mrs. Hartnett’s first surgery. Accordingly, in light of our



      4
         (...continued)
wanted to discuss the motion to compel. According to the Hartnetts’ counsel, the
defendants’ counsel did not call the paralegals but instead requested to speak to
the Hartnetts’ counsel personally.
        In their response to the Hartnetts’ motion to compel, the defendants note
that these efforts to resolve this discovery dispute were initiated on the same day
that the Hartnetts’ counsel mailed the motion to compel. Accordingly, we see
little indication that the district court abused its discretion in concluding that
these eleventh hour efforts to resolve the discovery dispute were insufficient to
comply with D.C. Colo. L.R. 7.1(A) and Fed. R. Civ. P. 37.

                                         -25-
vacating the grant of summary judgment and remanding the case for further

proceedings, the district court should allow further opportunity for discovery and

should exercise its sound discretion should further disputes arise involving these

records.



                               III. CONCLUSION

      We VACATE the grant of summary judgment to the defendants and

REMAND the case to the district court for further proceedings consistent with

this order and judgment.



                                Entered for the Court,



                                Robert H. Henry
                                Circuit Judge
      .




                                        -26-
