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 that it wants to call the withdrawn witness to testify?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


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  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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