Miolen v. Hathcock

24CA1491 Miolen v Hathcock 01-29-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1491
Larimer County District Court No. 20CV30635
Honorable C. Michelle Brinegar, Judge

Michael Miolen,

Plaintiff-Appellant,

v.

Alan Hathcock, M.D., and Poudre Valley Health Care, Inc. d/b/a UCHealth
Harmony Emergency Center,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Kuhn and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 29, 2026

Leventhal Puga Braley P.C., Jim Leventhal, Julia T. Thompson, Nathaniel E.
Deakins, Robert S. Peck, Denver, Colorado, for Plaintiff-Appellant

Hershey Decker Drake PLLC, C. Todd Drake, Lone Tree, Colorado, for
Defendants-Appellees

Faraci Leasure, LLC, Paul A. Faraci, Glendale, Colorado, for Defendant-
Appellee Alan Hathcock, M.D.

Jackson Kelly PLLC, Gilbert Dickinson, Denver, Colorado, for Defendant-
Appellee Poudre Valley Health Care, Inc. d/b/a UCHealth Harmony Emergency
Center
¶1 After Michael Miolen suffered a heart attack, he sued Dr.

Derek Stadie, Alan Hathcock, M.D., and Poudre Valley Health Care,

Inc. d/b/a UCHealth Harmony Emergency Center (Harmony) for

their allegedly negligent conduct in treating his condition.1 A jury

rejected Miolen’s allegations of negligence, and he now appeals. We

affirm.

I. Background

¶2 In September 2018, Miolen went to Harmony, a freestanding

emergency department in Fort Collins, believing he was having a

heart attack. After he arrived, Stadie, an emergency medicine

physician, ordered an electrocardiogram (EKG) at 12:46 a.m.

Stadie described the results of this EKG as not entirely normal.

The EKG machine indicated that Miolen was having a myocardial

infarction (a heart attack), but Stadie disagreed with the machine’s

interpretation. Miolen remained at Harmony, and Stadie ordered a

second EKG at 3:04 a.m. Stadie then spoke to Hathcock, an

internal medicine doctor at Poudre Valley Hospital (PVH), and

1 Stadie settled with Miolen in 2023 and was no longer a party at

the time of trial. However, Miolen and Harmony designated Stadie
as a nonparty at fault.

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arranged for Miolen’s transfer to PVH for cardiac monitoring and

other treatment unavailable at Harmony. PVH is a nearby hospital

that is part of the same medical system as Harmony.

¶3 Miolen arrived at PVH at approximately 4:45 a.m., and

Hathcock took over his care. At around 7 a.m., Dr. Roger Ashmore,

an in-house cardiologist, arrived at PVH. He was soon consulted

about Miolen’s condition, reviewed Miolen’s medical chart and prior

EKGs, and ordered a third EKG at 8 a.m. Ashmore testified that

the results of the third EKG showed a more significant injury to

Miolen’s heart, so he called an alert to initiate emergency

catheterization.

¶4 Miolen received treatment for the heart attack and was

discharged from the hospital two days later. However, he was

unable to return to his normal level of physical activity, required

ongoing treatment, and anticipated he would need a heart

transplant in the future. A cardiologist who treated Miolen after the

heart attack also testified that Miolen’s heart was not functioning at

maximum capacity and that more than 50% of his heart was “either

damaged . . . or [was] not working well.”

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¶5 In 2020, Miolen sued Stadie, Hathcock, and Harmony, alleging

that their negligence in failing to consult a cardiologist and transfer

him to PVH sooner caused him to sustain more significant and

permanent injuries. After an eleven-day trial in April 2024, a jury

found that Hathcock and Harmony did not act negligently.

A. Procedural History

¶6 On November 10, 2021, the day of Miolen’s expert witness

disclosure deadline, he disclosed — as relevant here — Ashmore as

a nonretained expert to testify about his care and treatment of

Miolen at PVH. At a discovery hearing on February 3, 2022, the

district court continued the trial originally scheduled for February

28, 2022, but it did not reopen discovery other than as discussed at

that discovery hearing. Trial was rescheduled to July 2023 and

later to April 2024. On February 8, 2022, Ashmore first met with

Miolen’s counsel, and two days later Miolen filed a supplemental

expert disclosure expanding the scope of Ashmore’s proposed

testimony.

¶7 During a March 2, 2022, hearing to discuss the supplemental

disclosure, Hathcock’s counsel admitted that he previously met

with Ashmore and received some of the same information contained

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in Miolen’s supplemental disclosure. But he said he did not discuss

the meeting with counsel for the other defendants. Collectively, the

defendants opposed the supplemental disclosure as untimely,

beyond the scope of Ashmore’s factual involvement, and duplicative

of other experts’ opinions. The district court precluded the evidence

described in the supplemental disclosure, concluding that allowing

the testimony at trial would prejudice the defendants. However,

because Ashmore’s deposition had not yet occurred, the district

court allowed Miolen’s counsel to ask about the opinions in the

supplemental disclosure during the deposition “for the purpose

solely of . . . developing an appellate record.” Miolen later moved for

reconsideration of the court’s order precluding Ashmore’s

testimony, and the court reaffirmed its original order.

¶8 Before further discussing the discovery dispute, additional

context surrounding Miolen’s treatment and the issues at trial is

helpful. One of the primary disputes was whether, before he arrived

at PVH, Miolen was having a certain type of heart attack called an

ST-segment elevation myocardial infarction (STEMI) that requires

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emergency catheterization.2 The defendants’ theory was that

Miolen’s EKGs did not meet STEMI criteria until the 8 a.m. EKG at

PVH, after which he was promptly taken to the catheterization lab.

Therefore, the defendants argued that Miolen’s first two EKGs did

not warrant an emergency transfer to PVH’s catheterization lab.

Conversely, Miolen’s theory was that (1) he had a STEMI before the

8 a.m. EKG; (2) his providers should have consulted a cardiologist

sooner; and (3) he should have been transferred to PVH’s

catheterization lab sooner. The delay in treatment, he argued, was

negligent.

¶9 According to the supplemental disclosure, Ashmore would

testify that a cardiologist could have and should have been called

while Miolen was at Harmony. The disclosure also stated

Ashmore’s opinion that Miolen should have been transferred to PVH

for monitoring after the 12:46 a.m. EKG. And it described

Ashmore’s opinion that Miolen’s 3:04 a.m. EKG met STEMI criteria

and warranted immediate transfer to the catheterization lab.

2 The ST segment on an EKG shows electrical activity in the heart,

and ST elevation can indicate blocked blood flow to the heart or
decreased electrical activity.

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Ashmore would testify that Miolen likely would have sustained a

milder injury had this course of treatment occurred.

¶ 10 Despite originally precluding Ashmore’s testimony on the

topics in the untimely supplemental disclosure, the court allowed

Ashmore to testify about his treatment and interpretation of the

12:46 and 3:04 EKGs but precluded testimony about what he

would have done — or someone else should have done — after

reviewing the two EKGs. Ashmore testified that a STEMI requires a

certain amount of ST elevation in at least two contiguous leads on

an EKG, and he testified that the 12:46 EKG showed ST elevation in

one lead, which he believed showed “a possible injury.” He also

testified that the 3:04 EKG showed ST elevation in two leads

sufficient to meet STEMI criteria.

B. Issues on Appeal

¶ 11 Miolen now appeals, arguing that the district court

erroneously precluded some of Ashmore’s testimony contained in

the supplemental disclosure. His opening brief argues extensively

that the district court erred but fails to explain whether or how any

such error prejudiced him. And his reply brief dedicates a cursory

two paragraphs to the argument that the alleged error was not

6
harmless. We do not address his myriad arguments alleging error

because we conclude that — even assuming error occurred — any

error was harmless.

¶ 12 We also do not address Miolen’s arguments that the court

should have admitted Ashmore’s testimony because precluding it

allowed Ashmore to be treated as a nonparty at fault and violated

due process. Miolen does not point us to where he preserved this

argument, see C.A.R. 28(a)(7)(A), and our independent review of the

record did not reveal any such argument. Moreover, Miolen’s

counsel objected on speculation grounds to the testimony that

supposedly rendered Ashmore a nonparty at fault. Because

Miolen’s arguments on appeal were not presented to the district

court, we do not consider them. See Gestner v. Gestner, 2024 COA

55, ¶ 18.

¶ 13 Finally, we address Miolen’s attorney fees appeal in a separate

opinion. See Miolen v. Hathcock, (Colo. App. No. 25CA0055, Jan.

29, 2026) (not published pursuant to C.A.R. 35(e)).

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II. Analysis

A. Standard of Review and Applicable Law

¶ 14 We review a district court’s decision to admit or exclude

evidence for an abuse of discretion. D.R. Horton, Inc.-Denv. v.

Bischof & Coffman Constr., LLC, 217 P.3d 1262, 1267 (Colo. App.

2009). This includes a decision to admit or exclude evidence and

witnesses that were not timely disclosed. See id.; Melssen v. Auto-

Owners Ins. Co., 2012 COA 102, ¶ 52. A district court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair. D.R. Horton, Inc.-Denv., 217 P.3d at 1267.

¶ 15 Unless certain exceptions apply, a district court may — under

C.R.C.P. 37(c) — sanction a party’s failure to comply with certain

discovery deadlines by precluding evidence or witnesses. Berry v.

Keltner, 208 P.3d 247, 248 (Colo. 2009). The erroneous admission

or preclusion of evidence is harmless and does not warrant reversal

unless “it can be said with fair assurance that the error

substantially influenced the outcome of the case or impaired the

basic fairness of the trial itself.” Bly v. Story, 241 P.3d 529, 535

(Colo. 2010) (citation omitted). Moreover, “[i]f evidence that [wa]s

excluded was also presented through other testimony or admitted

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evidence, any error in excluding the cumulative evidence is

harmless . . . .” Sovde v. Scott, 2017 COA 90, ¶ 65 (citation omitted)

(concluding that the plaintiff was not prejudiced by the district

court’s exclusion of testimony from one witness that was admitted

through other witnesses).

B. Application

¶ 16 Miolen appears to concede that his supplemental disclosure

was untimely, but he primarily challenges the district court’s

conclusion that admitting Ashmore’s testimony described in the

disclosure would prejudice the defendants. His opening brief does

not explain whether or how the preclusion of Ashmore’s testimony

prejudiced him. See Bly, 241 P.3d at 535. His reply brief argues

primarily that Baker v. Taco Bell Corp., 163 F.R.D. 348 (D. Colo.

1995), supports a conclusion that excluding such testimony is not

harmless because treating physicians bring a unique perspective

that is not duplicative of other witnesses’ testimony. That case

considered whether treating physicians were experts under the

federal rules of civil procedure such that the plaintiff could recover

certain litigation costs; it did not consider whether a treating

9
physician’s testimony may be more persuasive to a jury than a

retained expert. Id. at 349.

¶ 17 Because Miolen does not clearly articulate which portions of

the precluded testimony prejudiced him, we consider all of

Ashmore’s proffered testimony from the supplemental disclosure.

We then explain that each statement in the disclosure was elicited

at trial through Ashmore or other witnesses. Therefore, we

conclude that the district court either did not preclude Ashmore’s

testimony or that any error in precluding parts of his testimony was

harmless. See Scott, ¶ 65; Simon v. Truck Ins. Exch., 757 P.2d

1123, 1125 (Colo. App. 1988) (excluding proffered testimony was

harmless when it “would have been cumulative of that of another

expert for [the] plaintiff”).

¶ 18 The supplemental disclosure first stated that Ashmore was a

cardiologist who treated Miolen at PVH, and Ashmore would testify

10
about his care, treatment, and evaluation of Miolen.3 As discussed,

the court allowed this testimony.

¶ 19 Next, the disclosure stated that Ashmore would testify that he

met with Miolen’s and Hathcock’s counsel before trial. This

testimony seems more foundational than relevant to the ultimate

issue of whether Miolen’s providers were negligent. And on appeal,

Miolen primarily cites Ashmore’s meeting with Hathcock’s counsel

to argue that at least one defendant was aware of Ashmore’s

opinions detailed in the supplemental disclosure and would not

have been prejudiced. But we do not see how excluding this

testimony could have substantially influenced the trial’s outcome.

Bly, 241 P.3d at 535.

¶ 20 Turning to the more substantive parts of the disclosure, it next

stated that “Ashmore will testify that he read the 12:46 EKG after

Mr. Miolen had been transferred for inpatient care at PVH. He will

3 The disclosure also stated that Ashmore would testify that

“[t]roponin results are automatically imported into the patient
record once a point of care test is run.” It is unclear whether the
district court precluded this testimony, and Miolen references this
proffer only in his summary of the disclosure. But a witness
testified that troponin results go from the testing device, “up into
the cloud, and then download[] into the patient’s chart.”

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testify that [the] 12:46 EKG [was] abnormal. The most concerning

aspect of the 12:46 EKG [was] an ST elevation in lead V3.”

Ashmore testified that this EKG showed “ST elevation in lead V3,

and that’s the area where [he] thought there was concern for

possible injury.” Dr. Mark Langdorf, Miolen’s retained expert, also

testified that the 12:46 EKG was abnormal. And even Stadie

testified that the first EKG was not “completely normal.”

¶ 21 The next part of the disclosure also seemingly pertained to the

12:46 EKG and stated that “Ashmore will testify that when a patient

presents to the [emergency room] and his EKG or clinical

presentation is unclear, such as Mr. Miolen’s, a cardiologist could

have been called for an urgent consultation. Those types of

consultations are not infrequent.” Stadie testified that Harmony

policy required a cardiology consult if a patient’s EKG results were

unclear. However, there was some dispute about whether Miolen’s

EKG results were unclear or merely irregular. Stadie explained that

he interpreted the policy to require a cardiology consult if it was

unclear whether the patient’s EKG met STEMI criteria, and he

testified that Miolen’s 12:46 EKG clearly did not meet that criteria.

12
However, he admitted on cross-examination that he testified in his

deposition that the 12:46 EKG results were unclear.

¶ 22 Two of Miolen’s expert witnesses also discussed Harmony’s

policy and testified that a cardiology consult should have occurred

even if the 12:46 EKG did not meet STEMI criteria. There was also

no real dispute that a cardiologist could have been called; Hathcock

and Ashmore testified that, at all times, PVH has a board-certified

cardiologist on call and available for consultation. Overall, there

was testimony that a cardiologist could have been consulted, that

an unclear EKG warrants a consult, and two experts testified that

the 12:46 EKG warranted such a consult. See Scott, ¶ 65.

¶ 23 Miolen’s disclosure also proffered Ashmore’s testimony that no

cardiology consult occurred before Miolen was transferred to PVH.

This did not appear to be disputed; Stadie testified that he did not

consult a cardiologist and admitted that he and Hathcock never

discussed a cardiology consult. Hathcock also testified that he

never recommended a cardiology consult. Further, Langdorf,

Miolen’s expert, testified that no cardiology consult occurred and

opined that it constituted substandard medical care.

13
¶ 24 The disclosure next discussed Ashmore’s testimony about

what he would have done had he been consulted after the first two

EKGs. The district court explicitly precluded this evidence, which

would have included Ashmore’s testimony that “had he been

consulted after 12:46, he would have directed that Mr. Miolen be

taken to PVH for hospital admission and close monitoring, serial

[troponin tests] and serial EKGS.” But one of Miolen’s other experts

gave testimony nearly identical to Miolen’s proffer: “If they had a

cardiologist consult at [12:46], the cardiologist likely would have

recommended immediate transfer, repeat EKGs, and serial

troponins.”

¶ 25 Moreover, what Ashmore would have done had he been

consulted after the initial EKG was less relevant than whether

Miolen’s EKG results should have triggered a cardiologist

consultation in the first place. This is because the main issue was

whether Miolen’s providers negligently delayed care by failing to

consult a cardiologist earlier, not what a cardiologist would have

done after being consulted. There appeared to be broad consensus

among both parties’ witnesses that the 12:46 EKG did not meet

STEMI criteria. So the question was whether a cardiology consult

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should have occurred even if it did not meet STEMI criteria. The

jury heard testimony from Miolen’s other experts that a cardiologist

should have been consulted, and the failure to do so constituted

substandard care. Therefore, any error in excluding Ashmore’s

testimony about what he would have done had he been consulted

after the 12:46 EKG was harmless. See Scott, ¶ 65.

¶ 26 Turning to the second EKG, the disclosure said that Ashmore

would testify that he reviewed the 3:04 EKG after Miolen was

transferred to PVH, and the “EKG contained [two] contiguous leads

with ST segment elevation in V3 and V4 and did meet STEMI

criteria.” At trial, Ashmore testified about his interpretation of the

3:04 EKG and said it met STEMI criteria. Langdorf also testified

that the second EKG did not “meet classic STEMI criteria” but still

showed evidence of a STEMI. This testimony was not precluded.

¶ 27 Similarly, the disclosure indicated that Ashmore would testify

that, after the second EKG, “a cardiology consult was warranted,

and Mr. Miolen should have been immediately transferred to PVH.”

For several reasons, we conclude that excluding this testimony was

harmless. First, the jury heard extensive consensus among both

parties’ witnesses that a cardiology consult and transfer are

15
necessary if an EKG meets STEMI criteria. The primary dispute

was whether Miolen’s 3:04 EKG showed a STEMI or, if not, whether

the standard of care still required a cardiology consult and transfer

to PVH. But the jury heard the critical part of Ashmore’s testimony,

which was his opinion that the 3:04 EKG met STEMI criteria.

Given the broad consensus on proper STEMI protocol, this

testimony necessarily suggested he also believed a cardiology

consult and transfer were warranted.

¶ 28 Langdorf and another expert witness also directly testified that

the 3:04 a.m. EKG warranted a cardiology consult and immediate

transfer and that delaying this care was improper. Therefore, the

jury heard evidence from Ashmore implying that a cardiology

consult and transfer were necessary, and it heard the proffered

evidence directly from two other witnesses.

¶ 29 Next, the disclosure indicated that Ashmore would have

testified that had Miolen been transferred to PVH after his second

EKG, he “would have arrived at the cath[eterization] lab within

[thirty] minutes from [Harmony] where an angiogram followed by

revascularization would have occurred,” and he likely would have

sustained a milder injury. The jury heard evidence about how long

16
it took to drive from Harmony to PVH and about how long it took to

transfer Miolen to the catheterization lab after the 8 a.m. EKG. We

think it extremely unlikely that the jury’s liability conclusion would

have been affected by Ashmore’s testimony that it would have taken

thirty minutes at 3 a.m. to transfer Miolen from Harmony to the

PVH catheterization lab.

¶ 30 The excluded testimony related to a hypothetical situation in

which Miolen would have been transferred to the catheterization lab

around 3 a.m., but the actual transfer occurred approximately five

hours later. What could have happened at 3 a.m. (including the

potential transfer time) was not particularly relevant to whether he

should have been transferred then. And while the proffered

timeframe may have helped the jury assess the amount of

preventable damage to Miolen’s heart, this evidence was less

relevant to the issue of whether his providers negligently delayed

care (a conclusion that the jury rejected). See Dunlap v. Long, 902

P.2d 446, 448 (Colo. App. 1995) (explaining that a jury

determination rejecting liability “renders harmless any error that

might have occurred with respect to the issue of the plaintiff’s

alleged damages”). In fact, the jury concluded that Miolen did

17
suffer “injuries[,] damages[,] or losses” but rejected the conclusion

that Hathcock or Harmony caused those damages.

¶ 31 The same reasoning applies to Ashmore’s proffered testimony

that Miolen would have sustained a milder injury if he had been

transferred after the second EKG. Again, this testimony was more

relevant to the extent of Miolen’s injuries than whether his

providers breached the standard of care by delaying care. And the

jury heard that Ashmore interpreted the 3:04 EKG as showing a

STEMI, which implied that an emergent transfer was necessary.

Had the jury accepted Ashmore’s interpretation, it was a matter of

common sense that Miolen would have sustained a milder injury if

he were transferred earlier. But the jury’s verdict suggests that it

rejected Ashmore’s opinion that the second EKG showed a STEMI.

¶ 32 Furthermore, two other experts testified that Miolen would not

have sustained as serious an injury if he had been transferred

earlier and that delaying care increased the severity of his injury.

We cannot say that precluding Ashmore’s testimony substantially

influenced the outcome of the case when other experts gave

identical testimony, see Simon, 757 P.2d at 1125, and when the

jury apparently rejected the portion of Ashmore’s and the other

18
experts’ testimony suggesting that failure to initiate an earlier

transfer was negligent.

¶ 33 We are also not persuaded that the jury would have given

Ashmore’s testimony as a nonretained expert and treating physician

more weight than Miolen’s retained experts (at least to an extent

that would have substantially influenced the trial’s outcome). See

Gonzales v. Windlan, 2014 COA 176, ¶ 34 (rejecting the argument

that a doctor’s testimony “‘carried extra weight with the jury’

because he was Gonzales’s primary care physician”). First,

Ashmore was not the on-call cardiologist at the time of the first or

second EKGs, so testimony about what he would have done was

even more attenuated than if he had been on call. And, as

discussed, the jury heard Ashmore’s testimony that the 3:04 EKG

showed a STEMI. It was undisputed that a STEMI triggers a

cardiology consultation and a transfer to the catheterization lab.

Had the jury found Ashmore’s STEMI conclusion credible, it

logically followed that Miolen should have been transferred earlier

and that delaying treatment breached the standard of care.

¶ 34 But the jury appears to have rejected Ashmore’s conclusion,

which may have been because Ashmore defined STEMI criteria

19
differently than the other witnesses, including Miolen’s expert

witnesses. Hathcock’s counsel emphasized this during closing

arguments. Therefore, even if Ashmore had testified to everything

in the supplemental disclosure, the jury may have given less weight

to some of his testimony because he used a different diagnostic

method than the other experts.

¶ 35 Finally, we are not persuaded by Miolen’s argument that

Ashmore’s testimony would have been more persuasive because he

worked for the Poudre Valley Healthcare hospital system and was

more familiar with the specific policies and procedures. For one, as

a PVH cardiologist, Ashmore was responsible for responding to, not

initiating, cardiology consultations from Harmony. Additionally,

Miolen’s other expert witnesses reviewed and testified about

Harmony’s cardiac alert policy, which guided Harmony staff on

whether and when to consult with a cardiologist. Ashmore’s

familiarity with this policy would have perhaps given the jury

additional context, but the jury had access to the policy itself and

heard various witnesses testify about that policy.

¶ 36 In sum, we conclude that any error in excluding portions of

Ashmore’s testimony from Miolen’s untimely supplemental

20
disclosure was harmless. The jury heard nearly all the proffered

testimony from Ashmore himself or other witnesses. See Scott,

¶ 65; Simon, 757 P.2d at 1125. We think it highly unlikely that

Ashmore’s inability to testify directly about each item listed in the

disclosure “substantially influenced the outcome of the case or

impaired the basic fairness of the trial itself.” Bly, 241 P.3d at 535

(citation omitted).

III. Disposition

¶ 37 The judgment against Miolen and in favor of Hathcock and

Harmony is affirmed.

JUDGE KUHN and JUDGE SULLIVAN concur.

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