Dworakowski v. Sisk

25CA1250 Dworakowski v Sisk 06-25-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1250
Routt County District Court No. 22CV30039
Honorable Brittany A. Schneider, Judge

Eva Dworakowski,

Plaintiff-Appellant,

v.

Michael S. Sisk, M.D.,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE LUM
Welling and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 25, 2026

Andrew T. Brake, P.C., Andrew T. Brake, Denver, Colorado, for Plaintiff-
Appellant

Hershey Decker Drake, P.L.L.C., C. Todd Drake, Lone Tree, Colorado, for
Defendant-Appellee
¶1 Plaintiff, Eva Dworakowski, appeals the judgment entered

after a jury found in favor of defendant, Michael S. Sisk, M.D., on

Dworakowski’s medical malpractice claim. We affirm.

I. Background

¶2 Dworakowski sought care from Dr. Sisk for osteoarthritis of

the right hip and trochanteric bursitis. She began receiving

injections in her right hip bursa and taking anti-inflammatory

medication, both of which were ineffective. Dr. Sisk then

recommended a right hip replacement, which he performed on

August 11, 2020. During the procedure, Dworakowski’s greater

trochanter (a large, boney knob located at the upper, outer side of

the femur) fractured. Dr. Sisk repaired it intraoperatively and

completed the hip replacement surgery.

¶3 Dworakowski met with Dr. Sisk for a follow-up office visit on

August 25, 2020, and reported she was doing well. Dr. Sisk

ordered an x-ray of her right hip (August 25 x-ray) and noted there

was proper alignment and intact hardware. He memorialized the

visit and his impressions of the x-ray in an office note.

¶4 Three days later, Dworakowski’s right hip dislocated, and she

was treated at the emergency room. Dr. Sisk performed a revision

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surgery on September 1, 2020. Afterward, Dworakowski continued

to have pain and attempted to treat it with several medications

before second revision surgery was performed by a different

doctor — Dr. William Howarth — a few months later.

¶5 Dworakowski filed suit against Dr. Sisk, asserting a claim for

negligence. The jury returned a verdict in Dr. Sisk’s favor.

Dworakowski moved for a new trial, which the trial court denied.

¶6 Dworakowski contends that the trial court erred by precluding

(1) testimony from her expert regarding the August 25 x-ray and

office note; (2) cross-examination of Dr. Sisk and his expert

regarding a declaration created by Dr. Sisk; (3) cross-examination of

Dr. Sisk regarding other civil suits against him, a 2012 disciplinary

letter, and his resignation of surgical privileges at a facility; and

(4) arguments in closing regarding the August 25 x-ray and Dr.

Sisk’s communications at the office visit.

II. Expert Disclosures

¶7 Dworakowski asserts the trial court erred by prohibiting her

expert witness from testifying regarding the August 25 x-ray and

office note. We disagree.

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A. Additional Background

¶8 In support of her negligence claim, Dworakowski endorsed a

retained expert, Devone Mansour, D.O., who disclosed a report and

testified at trial. In his report, Dr. Mansour opined that “during

surgery on August 11, 2020, Dr. Sisk was negligent in his attempt

to stabilize and repair the Greater Trochanter in the proper

accepted fashion.” According to Dr. Mansour, “[t]he method used

by Dr. Sisk was inappropriate and destined to fail.” He specifically

analyzed and provided opinions about the August 11 surgery, the

imaging and surgical report dated the same day, and Dr. Sisk’s

revision procedure performed on September 1.

¶9 His report included the following language: “I will utilize the

images I provide with my report as exhibits to demonstrate and

show the jury the negligence of Dr. Sisk and show how Dr. Howarth

correctly performed surgery which was successful. I will explain

what the images show.” And it described the materials reviewed as

“Medical Records of Dr. Sisk, UC Health records relating to the

three admissions of Ms. Dworakowski, and related imaging.

Discovery responses of Dr. Sisk. First session of

Ms. Dworakowski’s deposition.” The report also attached images

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dated August 21, 2019; August 11, 2020; August 28, 2020;

September 1, 2020; October 6, 2020; November 2, 2020; and

January 29, 2021. But it didn’t reference or discuss Dworakowski’s

August 25 office visit, the August 25 x-ray, or the office note.

¶ 10 At trial, Dworakowski’s counsel sought to question

Dr. Mansour regarding the August 25 x-ray and office note.

Dr. Sisk’s counsel objected, arguing that any of Dr. Mansour’s

opinions about the visit, office note, or x-ray should be excluded

under C.R.C.P. 37 because they hadn’t been disclosed. The trial

court sustained the objection and excluded the testimony.

B. Applicable Law and Standard of Review

1. C.R.C.P. 26 and 37

¶ 11 C.R.C.P. 26(a)(2)(B)(I) governs pretrial disclosure of experts —

like Dr. Mansour — who are retained or specifically employed to

provide expert testimony. The rule requires that a party shall

disclose, by written report signed by the witness, “a complete

statement of all opinions to be expressed and the basis and reasons

therefor” and “a list of the data or other information considered by

the witness in forming the opinions.” C.R.C.P. 26(a)(2)(B)(I)(a)-(b).

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If an expert’s opinions and facts supporting
the opinions are disclosed in a manner that
gives the opposing party reasonable notice of
the specific opinions and supporting facts, the
purpose of the rule is accomplished. In the
absence of substantial prejudice to the
opposing party, this rule does not require
exclusion of testimony merely because of
technical defects in disclosure.

C.R.C.P. 26 cmt. 21. These disclosures must occur within the

deadlines laid out in C.R.C.P. 26(a)(2)(C), unless otherwise provided

by the court.

¶ 12 C.R.C.P. 37(c)(1) authorizes sanctions for failures to disclose

information required by C.R.C.P. 26(a) when such failure is not

substantially justified or harmless to the opposing party. Saturn

Sys., Inc. v. Militare, 252 P.3d 516, 523 (Colo. App. 2011). The

burden is on the party who failed to disclose to show substantial

justification or harmlessness. Todd v. Bear Valley Vill. Apartments,

980 P.2d 973, 978 (Colo. 1999). The question of harm is not

whether the undisclosed evidence is “potentially harmful to the

opposing side’s case,” but “whether the failure to disclose the

evidence in a timely fashion will prejudice the opposing party by

denying that party an adequate opportunity to defend against the

evidence.” Id. at 979.

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2. Standard of Review

¶ 13 We review the trial court’s imposition of a discovery sanction

for an abuse of discretion. Cath. Health Initiatives Colo. v. Earl

Swensson Assocs., Inc., 2017 CO 94, ¶ 8. A court abuses its

discretion when its ruling is “manifestly arbitrary, unreasonable, or

unfair, or based on a misapprehension of the law.” Id.

C. Analysis

¶ 14 Dworakowski contends the trial court violated CRE 401 and

402 by excluding testimony from Dr. Mansour regarding the

August 25 x-ray and office note. She asserts that both were

disclosed as bases for her expert’s opinion, and she argues that the

x-ray was “critical” because it “showed the failure of the [first]

surgery; and the progressive greater trochanter displacement which

caused . . . Dworakowski’s hip displacement.”

¶ 15 However, while ten x-ray images were attached to

Dr. Mansour’s report, the August 25 x-ray wasn’t. And while the

report generally discloses that Dr. Mansour reviewed various

medical records and imaging, it doesn’t mention the August 25 x-

ray, office note, or visit, much less disclose that he believed the x-

ray showed the failure of the first surgery. Thus, Dr. Sisk didn’t

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have reasonable notice that Dr. Mansour would offer opinions on

this visit and related documentation. See C.R.C.P. 26 cmt. 21.

Moreover, Dworakowski doesn’t explain why her failure to disclose

this information was justified or harmless. See Saturn Sys., 252

P.3d at 523; Todd, 980 P.2d at 978. For these reasons, we discern

no error.

III. Attorney-Client Privilege

¶ 16 Dworakowski next contends that the trial court improperly

prevented her counsel from asking Dr. Sisk and his expert,

Dr. Ronald R. Hugate, questions about the “origin, preparation,

delay[,] and circumstances” of Dr. Sisk’s declaration describing the

surgical techniques he used. The trial court concluded that this

inquiry invaded attorney-client privilege. We conclude that any

error is harmless.

A. Additional Background

¶ 17 Dr. Sisk’s declaration stated that on the day of the first

surgery, the medical center did not have a particular piece of

equipment (a “claw plate”) available for his use in repairing the

greater trochanter fracture, so instead he used a technique

involving screws, washers, sutures, and a “standard figure eight

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tension band” (figure eight technique). He disclosed the declaration

on February 2, 2023. Four days later, Dr. Sisk disclosed his expert,

Dr. Hugate, and his report. Dr. Hugate’s report was dated the same

day as the declaration: January 27, 2023. The report relied on the

information contained in the declaration and opined that the figure

eight technique was “appropriate and within the standard of care

under the circumstances.” Dr. Hugate testified at trial. Dr. Sisk

disclosed himself as a nonretained expert and also testified.1

¶ 18 During Dr. Sisk’s cross-examination, Dworakowski’s counsel

questioned him about inconsistencies between his surgical report,

created just after the surgery, and the declaration, created more

than two years later. Specifically, counsel highlighted that the

surgical report didn’t discuss using the figure eight technique.

Then, counsel asked why Dr. Sisk decided to “put . . . that

description” into his declaration. Dr. Sisk’s counsel objected,

arguing the information was protected by attorney-client privilege.

Dworakowski’s counsel argued, “[W]hat I’m trying to establish is

ironically, on the same day that the expert’s report comes out, the

1 While Dr. Sisk was disclosed as a nonretained expert, it’s unclear

from the record whether he testified in his lay or expert capacity.

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expert is able to say that he did that technique. And without

having that documented, he probably could not have said that.”

¶ 19 The trial court sustained the objection, explaining that counsel

could question Dr. Sisk about the “date of the affidavit, the date of

the report, and make any argument and make any inference you’d

like to in closing. But asking why [Dr. Sisk wrote the declaration] I

think does go into attorney-client privilege.”

¶ 20 Dworakowski’s counsel used a similar line of questioning with

Dr. Hugate, eventually asking him whether the declaration “came to

be as a result of maybe your requesting it be put in writing?” The

court concluded that this question also asked for attorney-client

privileged communications.

B. Applicable Law and Standard of Review

¶ 21 The attorney-client privilege protects confidential

communications between attorneys and their clients by preventing

their disclosure without the client’s consent. Wesp v. Everson, 33

P.3d 191, 196-98 (Colo. 2001). The privilege “extends only to

matters communicated by or to the client in the course of gaining

counsel, advice, or direction with respect to the client’s rights or

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obligations.” Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000);

accord People v. Trujillo, 144 P.3d 539, 542 (Colo. 2006).

¶ 22 However, the privilege “protects only the communications to

the attorney; it does not protect any underlying and otherwise

unprivileged facts that are incorporated into a client’s

communication to his attorney.” Gordon, 9 P.3d at 1123. And it

applies only to “statements made in circumstances giving rise to a

reasonable expectation that the statements will be treated as

confidential.” People v. Tucker, 232 P.3d 194, 198 (Colo. App. 2009)

(quoting Wesp, 33 P.3d at 197). The party claiming the attorney-

client privilege has the burden of establishing it. Wesp, 33 P.3d at

197.

¶ 23 We review a trial court’s conclusions regarding the attorney-

client privilege for an abuse of discretion. Affiniti Colo., LLC v.

Kissinger & Fellman, P.C., 2019 COA 147, ¶ 23. A court abuses its

discretion when its ruling is “manifestly arbitrary, unreasonable, or

unfair, or based on a misapprehension of the law.” Cath. Health

Initiatives Colo., ¶ 8. However, a “determination of the proper legal

standard to be applied in a case and the application of that

10
standard to the particular facts of the case are questions of law that

we review de novo.” A.R. v. D.R., 2020 CO 10, ¶ 37.

C. Analysis

¶ 24 Even if we assume, without deciding, that the trial court erred

by precluding testimony about why Dr. Sisk prepared the

declaration, any error is harmless. See C.A.R. 35(c).

¶ 25 Dworakowski argues, as she did below, that the purpose of

asking about the declaration’s origins was to undermine

Dr. Hugate’s conclusion that Dr. Sisk wasn’t negligent in repairing

the greater trochanter fracture that occurred during the first

surgery. She wanted to elicit testimony about “whether or not”

Dr. Hugate had asked for the declaration so that he could opine

that Dr. Sisk had used the figure eight technique — the appropriate

standard of care — to repair the fracture. And, although

Dworakowski doesn’t explicitly say as much, we presume that she

wanted the jury to infer that Dr. Sisk didn’t use the figure eight

technique and that he lied on his declaration so that Dr. Hugate

could render a favorable expert report.

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¶ 26 The trial court only precluded questions about whether

Dr. Hugate had requested that Dr. Sisk prepare the declaration.2

Dworakowski’s counsel extensively questioned Dr. Sisk about his

failure to mention the figure eight technique in his post-surgical

report and the subsequent inclusion of that information in the

declaration. This included the following colloquy:

[COUNSEL, discussing the post-surgical
report]: Doctor, if you look at the description of
the procedure . . . do you see where it says,
[‘]This was repaired with Number 2 Ethibond
and some 5.5-millimeter partially threaded
cancellous screws with washers to secure that
trochantic . . . fracture back to the made base
and the femur.[’] Do you see that?

[DR. SISK]: Yes.

[COUNSEL]: That was your entire description
of that repair, wasn’t it?

[DR. SISK]: Yes.

[COUNSEL]: Then, Doctor, on January 27,
2023, the same day as your expert report was

2 Dworakowski also asserts that the trial court erred by sustaining

Dr. Sisk’s objection to the question, “Took you several years to
finally put in that description, didn’t it, Doctor?” We won’t address
this argument because the court sustained Dr. Sisk’s objection that
the question was argumentative, and Dworakowski doesn’t explain
how the court erred in that respect. People v. Gingles, 2014 COA
163, ¶ 29 (declining to address undeveloped arguments).

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published, you decided you wanted to do a
better description, didn’t you?

[DR. SISK]: Yes.

Likewise, counsel elicited testimony from Dr. Hugate that the

declaration was the first time he “saw in writing” that a claw plate

wasn’t available and that Dr. Sisk has used the figure eight

technique. Further, Dr. Hugate acknowledged that the declaration

is dated the same day as his report and that he didn’t receive the

declaration until “a little bit after [his] report was done.”

¶ 27 This evidence amply permitted Dworakowski to undermine

Dr. Hugate’s opinion and cast doubt on whether Dr. Sisk adhered

to the standard of care. And we note that the trial court expressly

permitted counsel to draw “any inference you’d like to” regarding

the declaration in closing argument. Given that, we can’t see how

any error in precluding testimony about whether Dr. Sisk authored

the declaration at Dr. Hugate’s behest “substantially influenced the

outcome of the case.” In Interest of L.B., 2017 COA 5, ¶ 58.

IV. Impeachment of Dr. Sisk

¶ 28 Dworakowski next argues that the trial court reversibly erred

by preventing her counsel from cross-examining Dr. Sisk about a

13
pending medical malpractice case against him, a 2012 disciplinary

letter from the Colorado Medical Board, and Dr. Sisk’s resignation

of privileges from the relevant medical facility. She contends that

the pending case, resignation, and letter were admissible to

undermine Dr. Sisk’s credibility and expertise. We aren’t

persuaded.

A. Additional Background

¶ 29 Before trial, Dr. Sisk submitted a motion in limine to preclude

evidence or argument about prior lawsuits filed against him. The

trial court granted his motion, concluding that Dworakowski had

failed to demonstrate “that the prior incidents involved the same or

similar medical procedures to make testimony about those

incidents relevant.”

¶ 30 At trial, Dworakowski’s counsel sought to introduce a 2012

disciplinary letter from the Colorado Medical Board concerning a

knee surgery and Dr. Sisk’s April 2021 resignation of surgical

privileges from the relevant medical facility. Counsel argued he

would use the disciplinary letter to impeach any expert who gave

any opinion about Dr. Sisk’s record. And he said that he planned

to cross-examine Dr. Sisk using the resignation, arguing that it was

14
relevant because Dr. Sisk resigned four months after Dworakowski

made a complaint to the hospital.

¶ 31 Dr. Sisk’s counsel objected, arguing that the evidence was

irrelevant and prejudicial. The trial court sustained the objection

and explained that Dworakowski’s attorney may ask where Dr. Sisk

had privileges to practice at the time of trial, but not whether he

had resigned his privileges. The trial court also excluded the

disciplinary letter, reasoning that it didn’t concern the same or a

similar medical procedure and was therefore improper character

evidence under CRE 404(b).

B. Applicable Law and Standard of Review

¶ 32 To be admissible, evidence must be relevant. CRE 402.

Evidence is relevant when it has any tendency to make a fact of

consequence more or less probable than it would be without the

evidence. CRE 401. Still, even relevant evidence “may be excluded

if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay.” CRE 403. Consistent with

these principles, courts should allow wide latitude in cross-

examination of witnesses, but counsel should not be permitted to

15
inquire about “subjects which are totally unrelated to the resolution

of the issues in the trial.” Locke v. Vanderark, 843 P.2d 27, 31

(Colo. App. 1992).

¶ 33 That an expert has previously been sued for malpractice may

be relevant to impeach an expert’s credibility if the prior lawsuits

involve the same procedures as the ones at issue in the trial. See

Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1257 (Colo. 1994).

However, prior litigation that doesn’t involve the same medical

procedures isn’t relevant and injects confusion into the

proceedings. Locke, 843 P.2d at 31. And even if relevant,

inquiry into unrelated litigation requires, in
fairness, that the witness be permitted to
explain the nature, circumstances, and the
decision, if any, in each case to rehabilitate the
challenged credibility. Conversely, if any case
was settled, explanation would be necessary
regarding the reasons for and terms of any
compromise agreement. As a result, this
evidence would divert the jury’s attention from
the dispositive issues in the case and trial
preparation and cost could be extensive. In
short, the “sideshow would take over the
circus.”

Id. (citation omitted).

¶ 34 The scope and limits of cross-examination and the admission

or exclusion of evidence are within the sound discretion of the trial

16
court and will not be disturbed absent a showing of an abuse of

that discretion. Int’l Network, Inc. v. Woodard, 2017 COA 44, ¶ 42.

C. Analysis

¶ 35 Dworakowski contends that the trial court erred by excluding

evidence about Olsen v. Sisk, Moffat County Case No. 22CV30025, a

medical malpractice case pending against Dr. Sisk at the time of

Dworakowski’s trial.3 Dworakowski argues she should have been

able to impeach Dr. Sisk’s credibility about his expertise in hip

replacements because this case also concerned a hip replacement.

We disagree, but for a slightly different reason than the one relied

on by the trial court. See Roque v. Allstate Ins. Co., 2012 COA 10,

¶ 7 (“We can affirm for any reason supported by the record, even

reasons not decided by the trial court.”).

¶ 36 Unlike cases in which prior lawsuits have been deemed

admissible for the purposes of impeaching credibility, Olsen was

still pending at the time of the trial, and there had been no finding

that Dr. Sisk was negligent in performing the surgery. Thus, the

3 To the extent Dworakowski asserts the trial court erred by

excluding evidence of other prior lawsuits against Dr. Sisk, we
decline to address her argument because it’s undeveloped. Gingles,
¶ 29.

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case had minimal probative value. And any probative value was

substantially outweighed by the danger of unfair prejudice and

confusing the issues. See CRE 403; Locke, 843 P.2d at 31.

¶ 37 Similarly, Dworakowski contends that the disciplinary letter

and resignation were also relevant to Dr. Sisk’s credibility as an

expert. But we agree with Dr. Sisk that the disciplinary letter is

irrelevant because it concerns a completely different procedure (a

knee replacement) and was issued eight years before Dworakowski’s

surgery.

¶ 38 As for Dr. Sisk’s resignation, Dworakowski’s counsel admitted

at trial that he could not “represent that the reason [Dr. Sisk]

resigned was because of” her procedure. See Hock, 876 P.2d at

1257; cf. Locke, 843 P.2d at 31. For this reason, we also agree with

Dr. Sisk that the court didn’t abuse its discretion by excluding this

evidence as irrelevant.

V. Closing Argument

¶ 39 Finally, Dworakowski contends the trial court improperly

limited the scope of her closing argument by prohibiting her from

(1) arguing what the August 25 x-ray showed and (2) implying or

arguing that Dr. Sisk was negligent because he failed to tell her that

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her hip was unstable at her August 25 office visit. We discern no

error.

A. Additional Background

¶ 40 Before closing arguments, Dr. Sisk sought to exclude any

reference to negligence in his communications with Dworakowski

because she hadn’t introduced any evidence that his

communications were negligent. Dworakowski argued that any

closing remarks about Dr. Sisk’s communication with her, or lack

thereof, would target his credibility, not negligence. The trial court

ruled that counsel could refer to Dr. Sisk’s communications in

closing argument for credibility purposes only.

¶ 41 Similarly, Dr. Sisk sought to exclude any criticism of his

interpretation of the August 25 x-ray because Dworakowski hadn’t

introduced any evidence that his interpretation was negligent. The

trial court ruled Dworakowski’s counsel could show the x-ray but

cautioned counsel against drawing any conclusions that were

unsupported by the record.

¶ 42 During closing argument, Dworakowski’s counsel used a

series of slides. One of the slides contained the following text:

EVA DWORAKOWSKI

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Placed her trust in Dr. Sisk

8/11/2020 Surgery – Was not told that the
surgery was unsuccessful – Alyssa Minor told
her that Dr. Sisk had cut too far into her
femur, which no one has denied in this case –
Was led to believe that she would recover –
Alyssa Minor did not testify

8/25/2020 Office Visit – Was misled – not told
that Imaging showed that the Screws had
come out of the bone and her hip was unstable

8/28/2020 Hip dislocated and she had to be
transported to the ER.

9/1/2020 2nd Surgery by Dr. Sisk –
Negligently performed

11/3/2020 Last visit with Dr. Sisk – Not told
that surgery had failed, and he told her about
the Heterotopic Ossification after it had
reached the point of interfering with her ability
to function.

12/18/2020 Surgery by Dr. Howarth

¶ 43 Dr. Sisk’s counsel objected to the slide, arguing that it violated

the court’s order about the content of closing argument. The court

ordered counsel take the slide down and instructed the jury to

disregard it.

B. Applicable Law and Standard of Review

¶ 44 During closing argument, counsel may reference “the facts in

evidence and any reasonable inferences” that can be drawn from

20
them. Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005).

This includes highlighting pieces of evidence and explaining their

significance to the case. Id. But “[c]losing argument can never be

used to mislead or unduly influence the jury.” Id. at 1048-49. And

counsel may not introduce new evidence or reference facts not in

evidence during closing argument. People v. Vergari, 2022 COA 95,

¶ 32.

¶ 45 “A trial court’s decisions regarding the scope of closing

arguments will not be disturbed absent an abuse of discretion.”

Blood v. Qwest Servs. Corp., 224 P.3d 301, 322 (Colo. App. 2009),

aff’d, 252 P.3d 1071 (Colo. 2011).

C. Analysis

¶ 46 Dworakowski argues that she was entitled to argue that

Dr. Sisk had “misled” her about her recovery because it was a

reasonable inference drawn from the evidence. But Dworakowski

doesn’t dispute that she didn’t present any evidence that Dr. Sisk

was negligent in his communications with her, including at the

August 25 office visit. Thus, the trial court didn’t abuse its

discretion by ruling that the slide inappropriately suggested as

much.

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¶ 47 Dworakowski also contends that (1) the part of the slide

describing the August 25 x-ray was also a reasonable inference

drawn from the evidence and (2) the court erred by not allowing her

to argue that the August 25 x-ray “showed that her greater

trochanter had continued to be dislocated.” But although the x-ray

itself was an exhibit at trial, counsel’s lay interpretation of it isn’t a

reasonable inference that can be drawn from the image. Any such

interpretation required expert testimony, which Dworakowski didn’t

present. Accordingly, the trial court didn’t abuse its discretion by

excluding the slide and related argument from Dworakowski’s

closing.

VI. Disposition

¶ 48 The judgment is affirmed.

JUDGE WELLING and JUDGE SCHOCK concur.

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