CourtListener 10781559•Miolen v. Hathcock
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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.
1
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.”
2
¶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
3
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
4
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.
5
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)).
7
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
8
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.”
11
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
14
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.
21
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