plaintiff/appellee: jessica o’donnell court use v. … · believing that the cab that struck her...
TRANSCRIPT
COLORADO COURT OF APPEALS 2 EAST 14TH AVE. DENVER, CO 80203
Appeal from City and County of Denver District Court The Honorable Edward David Bronfin Case No. 16CV30623 Plaintiff/Appellee: JESSICA O’DONNELL ▲COURT USE
ONLY▲ v. Defendant/Appellant: COLORADO CAB COMPANY, a Colorado Limited Liability Company d/b/a DENVER YELLOW CAB
Case No.: 2017CA453
Attorneys for Defendants-Appellants: John M. Lebsack, #9550 Keith R. Olivera, #24437 Dmitry B. Vilner, #43704 White and Steele, PC 600 17th Street, Suite 600N Denver, CO 80202-5406 Phone: (303) 296-2828 Fax: (303) 296-3131 Email: [email protected], [email protected], [email protected]
OPENING BRIEF
DATE FILED: July 12, 2017 2:06 PM
CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The brief complies with the word limits set forth in C.A.R. 28(g). It contains 5,677 words (principal brief does not exceed 9,000 words). The brief complies with the content and form requirements set forth in C.A.R. 28(a)(7)(A).
For each issue raised by the appellant, the brief contains under a separate heading before the discussion of the issue, a concise statement: (1) of the applicable standard of appellate review with citation to authority; and (2) whether the issue was preserved, and, if preserved, the precise location in the record where the issue was raised and where the court ruled, not to an entire document.. I acknowledge that my brief may be stricken if it fails to comply with any of the requirements of C.A.R. 28 and C.A.R. 32. s/Dmitry B. Vilner______________ Signature of Attorney
i
TABLE OF CONTENTS
ISSUES PRESENTED FOR REVIEW ..................................................................... 1 STATEMENT OF THE CASE .................................................................................. 2 SUMMARY OF THE ARGUMENT ........................................................................ 4 ARGUMENT ............................................................................................................. 5 I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY
TO APPLY THE “HIGHEST DEGREE OF CARE” TO CCC’S CONDUCT ............................................................................................ 5 A. STANDARD OF REVIEW AND PRESERVATION ............... 5 B. ADDITIONAL FACTUAL BACKGROUND ........................... 5 C. ANALYSIS ................................................................................. 6 1. Colorado Law Treats the “Highest Degree of Care” as a Variant of the Duty of Reasonable Care ........................... 7 2. The “Highest Degree of Care” Is Not an Appropriate Standard of Care ............................................................... 8 a. The Standard is Outdated ....................................... 8 b. The Standard Forces Common Carriers to Become Insurers of Their Passengers’ Safety .................... 10 c. The Standard is Unworkable and Confusing ....... 11 d. The Standard Does Not Comport with Modern Colorado Tort Law ............................................... 12
II. THE TRIAL COURT ERRED IN ADMITTING UNDISCLOSED EXPERT WITNESS TESTIMONY REGARDING PLAINTIFF’S INJURIES ............................................................................................ 13 A. STANDARD OF REVIEW AND PRESERVATION ............. 13 B. ADDITIONAL FACTUAL BACKGROUND ......................... 14 C. ANALYSIS ............................................................................... 16
ii
TABLE OF CONTENTS (Continued)
III. THE TRIAL COURT ERRED IN ENTERING JUDGMENT ON AN INCONSISTENT JURY VERDICT ..................................... 19 A. STANDARD OF REVIEW AND PRESERVATION ............. 19 B. ADDITIONAL FACTUAL BACKGROUND ......................... 20 C. ANALYSIS ............................................................................... 21 CONCLUSION .............................................................................................. 26
iii
TABLE OF AUTHORITIES
Cases Bethel v. New York City Transit Auth., 703 N.E.2d 1214 (N.Y. 1998) ...............9, 11 City of Aurora v. Simpson, 105 P.3d 595 (Colo. 2005) ...........................................14 Colo. & S.R. Co. v. McGeorge, 46 Colo. 15 (1909) ......................................... 10, 11 Colo. Civil Right Comm’n v. ConAgra Flour Milling Co., 736 P.2d 842 (Colo. App.1987) ....................................................................................................... 7 Cooley v. Paraho Development Corp., 851 P.2d 207 (Colo. App. 1992) ........ 24, 25 Daniels v. Rapco Foam, Inc., 762 P.2d 717 (Colo. App. 1988) ....................... 18, 19 Day v. Johnson, 255 P.3d 1064 (Colo. 2011) ......................................................5, 13 Engeman Enter., Inc. v. Tolin Mech. Sys. Co., 2013 CO 34................................7, 11 Frederick v. City of Detroit, 121 N.W.2d 918 (Mich. 1963) ...................................13 Huspeni v. El Paso County Sheriff’s Dep’t, 196 P.3d 892 (Colo. 2008) .......... 14, 18 Imperial Distribution Servs., Inc. v. Forrest, 741 P.2d 1251 (Colo. 1987) .........7, 11 Kisselman v. Am. Family Mut. Ins. Co., 292 P.3d 964 (Colo. App. 2011) ............... 5 Morales v. Golston, 141 P.3d 901 (Colo. App. 2005) .............................................19 N.M. v. Trujillo, 2017 CO 79 ...................................................................................12 Nunez v. Prof. Transit Mgmt. of Tucson, Inc., 271 P.3d 1104 (Ariz. 2012) ........9, 10 Pannu v. Jacobson, 909 A.2d 178 (D.C. 2006) .......................................................13 Preston v. Dupont, 35 P.3d 433 (Colo. 2001)............................................. 22, 24, 25
iv
TABLE OF AUTHORITIES (Continued)
Pringle v. Valdez, 171 P.3d 624 (Colo. 2007) ...................................... 22, 23, 24, 25 Publix Cab Co. v. Fessler, 138 Colo. 547, 335 P.2d 865 (1959) ..........................5, 7 Silva v. Basin W., Inc., 47 P.3d 1184 (Colo. 2002) .................................................17 Stokes v. Denver Newspaper Agency, LLP, 159 P.3d 691 (Colo. App. 2006) ........24 Stone v. Deagle, No. 05-cv-1438-RPM-CBS, 2006 U.S. Dist. LEXIS 90430, at *9-10 (D. Colo. Dec. 14, 2006) ............................................................................17 Thompson v. Nat’l R.R. Passenger Corp., 621 F.2d 814 (6th Cir. 1980) ................22 Union Traction Co. of Ind. V. Berry, 121 N.E. 655 (Ind. 1919) .............................13 Westin Operator, LLC v. Groh, 2015 CO 25 ...........................................................12 Other Authorities Restatement (Second) of Torts §314A .................................................................9, 12 William L. Prosser, Law of Torts §34 at 181 (4th ed. 1971) ..................................... 8 Rules C.R.C.P. 26(a)(2) .............................................................................................. 16, 17 C.R.C.P. 26(a)(2)(B)(I) ............................................................................................17 C.R.C.P. 26(a)(2)(B)(II) ...........................................................................................17 C.R.C.P. 49(a) ..........................................................................................................19 C.R.C.P. 56(h) ............................................................................................................ 5 Fed. R. Civ. P. 26 .....................................................................................................17
1
ISSUES PRESENTED FOR REVIEW
1. Whether the trial court erred by granting in part Plaintiff’s Motion for
Determination of Question of Law and ruling that the highest degree of care
applied to Defendant’s conduct, and further instructing the jury in accordance with
the ruling.
2. Whether the trial court erred by admitting testimony by Plaintiff’s
expert witness that was not disclosed in Plaintiff’s expert disclosures or contained
in Plaintiff’s medical records.
3. Whether the trial court erred by entering judgment on an inconsistent
jury verdict, which included an award for economic damages, despite an award of
“zero” for physical impairment, when the only evidence supporting economic
damages, aside from past medical bills, involved an alleged physical impairment
requiring household services.
2
STATEMENT OF THE CASE
On April 14, 2013, Plaintiff and three friends went to a Nuggets game at the
Pepsi Center. R. Tr. 1/23/17, p. 234, l. 15 – p. 236, l. 5. The group had taken a
taxi to the game because they expected to drink. Id., p. 236, ll. 6-13; R. Tr.,
1/24/17, p. 150, l. 18 – p. 151, l. 7. Plaintiff drank no more than four glasses of
wine during the game, and she believed herself to be under the influence of alcohol
as a result. R. Tr., p. 153, ll. 2-19. After the game, Plaintiff and her companions
hailed a cab from a line of taxis to take them home. Id. at 154, ll. 2-4; R. Tr.,
1/23/17, p. 239, ll. 7-22.
The cab ride was brief. Plaintiff’s female friend said the cab driver made an
inappropriate comment. R. Tr., 1/24/17, p. 6, ll. 18-24. Following an apparent
argument with one of the male riders, the cab driver pulled over in the area of an
exit on southbound I-25. Id., p. 7, ll. 9-16; R. Tr., 1/24/17, p. 157, ll. 1-15; p.
211, ll. 11 – p. 212, l. 20.
Plaintiff’s three companions left the cab without incident. R. Tr., 1/23/17, p.
242, l. 12 – p. 243, l. 4. Plaintiff testified that her recollection of things was
“fuzzy.” R. Tr., 1/24/17, p. 149, ll. 4-7. Her last memory was having one foot in
the door of the cab, and one foot out. Id., p. 158, l. 21 – p. 159, l. 2. She “was
getting ready to get out of the cab” and “went to grab [her] purse and [her]
sunglasses” when “before [she] knew it the side door was hitting [her], throwing
3
[her] backwards.” Id., p. 157, ll. 18-22. At trial, she testified that she was hit by
the cab door, but gave inconsistent testimony about where the door of the cab hit
her. R. Tr., 1/24/17, p. 219, l. 9 – p. 220, l. 13. Her companion testified that
Plaintiff “was just starting to get out of the cab” when the driver “just took off.” R.
Tr., 1/23/17, p. 244, ll. 1-2. Whatever happened, Plaintiff apparently hit the back
of her head on the pavement. R. Supr. [Suppressed Trial Exhibits] at 7.
Plaintiff went to the hospital. R. Tr., 1/24/17, p. 221, ll. 5-7. Plaintiff’s
medical records reflect that she initially told EMS that “the cab driver ran me
over,” although EMS determined this was untrue. R. Supr. [Suppressed Trial
Exhibits] at 3. Her consumption of alcohol came up repeatedly in her medical
records. See, e.g., id. at 3, 6-7, 11-13, 15.
Believing that the cab that struck her was a Yellow Cab, Plaintiff filed her
complaint against Colorado Cab Company, d/b/a Denver Yellow Cab (“CCC”).
CF at 1. At trial, CCC argued, as it had throughout the case, that neither its cab
nor its cab driver (who was never identified) was involved in the incident. R. Tr.,
1/23/17, p. 144, ll. 1-9; R. Tr., 1/25/17, p. 125, ll. 10-23. After trial, the jury
found in favor of Plaintiff and awarded her $180,000 in economic damages,
$120,000 in noneconomic damages, and $0 in damages for physical impairment.
CF at 423-26. The trial court entered an amended judgment on March 13, 2017.
CF 464-66.
4
Additional facts will be presented as necessary below.
SUMMARY OF THE ARGUMENT
This Court should reverse the judgment of the trial court for three reasons.
First, the trial court erroneously instructed the jury on the “highest degree of
care” standard based on CCC’s status as a common carrier. This standard is
illogical, outdated, unworkable, confusing, and contrary to the modern
development of Colorado tort law. Instead, the trial court should have instructed
the jury that CCC owed Plaintiff a duty of reasonable care.
Second, the trial court abused its discretion by allowing one of Plaintiff’s
medical experts, Dr. Charles Miranda, to testify outside the scope of his medical
records and expert disclosures. The trial court’s error produced surprise at trial and
resulted in substantial prejudice to CCC.
Third, the trial court erred by entering judgment on an inconsistent jury
verdict, in which the jury awarded Plaintiff no damages for physical impairment,
and yet simultaneously awarded economic damages for household services
(cleaning and yardwork) that necessarily depended on a finding that she was
physically impaired. These two findings cannot be reconciled.
5
ARGUMENT
I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY TO APPLY THE “HIGHEST DEGREE OF CARE” TO CCC’S CONDUCT
A. STANDARD OF REVIEW AND PRESERVATION
This Court reviews questions of law under C.R.C.P. 56(h) de novo.
Kisselman v. Am. Family Mut. Ins. Co., 292 P.3d 964, 969 (Colo. App. 2011).
Additionally, this Court “reviews de novo whether a particular jury instruction
correctly states the law.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).
This issue is preserved. The trial court determined under C.R.C.P. 56(h) that
CCC is a common carrier and that common carriers owe their passengers the
highest degree of care.1 R. CF at 336-40. Then, over CCC’s objection, R. Tr.
1/25/17, p. 4, l. 4-25, the trial court instructed the jury to this effect, R. CF at 408.
B. ADDITIONAL FACTUAL BACKGROUND
Before trial, Plaintiff moved for a determination of a question of law under
C.R.C.P. 56(h), arguing that CCC is a “common carrier” under Colorado law and
that it, therefore, is subject to “the highest degree of care commensurate with the
practical operation of [its] business.” Plaintiff also tendered a proposed jury
instruction. R. CF at 254-60. CCC responded, arguing that the “highest degree of
1 The trial court referred to this standard as the “higher standard of care,” though the case on which the trial court relied, Publix Cab Co. v. Fessler, 138 Colo. 547, 335 P.2d 865 (1959), calls this standard the “highest degree of care.”
6
care” standard was outdated, unworkable, and confusing, and that the trial court
should instruct the jury on the “reasonable care” standard instead. CCC also
argued that Plaintiff’s proposed instruction was improper. R. CF at 306-13.
The trial court ruled that “[i]rrespective of how this Court views the
continued viability of the ‘higher degree of care’ standard imposed on common
carriers, or whether it should be rejected in favor of an approach like that adopted
in [cases cited by CCC], this Court must apply binding Colorado precedent.”
Thus, the trial court decided that it would instruct the jury on the “highest degree
of care,” but declined to fashion an instruction at that time. R. CF at 336-40.
Over CCC’s continuing objection, the trial court instructed the jury as follows:
INSTRUCTION NO. 7 Colorado Cab Company, LLC is a common carrier. A common carrier has a duty to its passengers to exercise the highest degree of care consistent with the practical operation of its business. Any failure of a common carrier to exercise such care is negligence.
Id. at 408.
C. ANALYSIS
This Court should reverse the trial court’s rulings that CCC owed Plaintiff
the “highest degree of care” because the “highest degree of care” standard is
outdated, unworkable, confusing, and inconsistent with modern Colorado tort law.
It should be discarded in favor of an ordinary “reasonable care” standard.
7
1. Colorado Law Treats the “Highest Degree of Care” as a Variant of the Duty of Reasonable Care As an initial matter, Colorado’s appellate courts have consistently held that
the “highest degree of care” is not a distinct legal standard, but rather an
application of the “reasonable care” standard to particular circumstances.
On one hand, a common carrier in Colorado “traditionally has had the duty
to exercise the highest degree of care to its passengers consistent with the practical
operation of its business.” Colo. Civil Right Comm’n v. ConAgra Flour Milling
Co., 736 P.2d 842, 845 (Colo. App. 1987) (citing Publix Cab, 138 Colo. 547, 335
P.2d 865 (1959)). But on the other, the Colorado Supreme Court has stated that
this “highest degree of care” standard is simply a restatement or variant of the
ordinary “reasonable care” standard. “In every case, the standard of care is always
one of reasonable care.” Imperial Distribution Servs., Inc. v. Forrest, 741 P.2d
1251, 1255 (Colo. 1987). “[T]he ‘highest standard of care’ does not constitute a
distinct legal standard; instead, the highest standard of care is precisely the type of
care that a reasonable person would exercise in the limited circumstances
presented.” Engeman Enter., Inc. v. Tolin Mech. Sys. Co., 2013 CO 34, ¶ 23; see
also id. at ¶¶ 24-26 (holding that, regardless of whether the handling of ammonia
required the “highest standard or degree of care,” such a standard was ultimately
one of reasonable care; thus, there was “no difference between any common law
negligence duty of care owed by defendant to plaintiff and the standard of care
8
defendant assumed under its contract”); William L. Prosser, Law of Torts §34 at
181 (4th ed. 1971) (“A substantial number of courts, however, have dealt with
some such cases by instructing the jury in terms of a higher, or the highest,
‘degree’ of care, as for example in the case of the common carrier. They thus
purport to recognize a higher or lower basic standard of conduct for different
defendants, or different situations. There is seldom reason to think that they mean
to say anything more than that greater or less care will be required under the
circumstances. Technically the “high degree” instruction is incorrect . . . .”).
As illustrated in the next section, the fact that Colorado law apparently
considers the “highest degree of care” standard to be both the same as, and
different from, the “reasonable care” standard creates substantial confusion in
applying the standard to a defendant’s conduct.
2. The “Highest Degree of Care” Is Not an Appropriate Standard of Care
This Court should reject the trial court’s application of the “highest degree
of care” standard because that standard (1) is outdated; (2) forces common carriers
to become insurers of their passengers’ safety; (3) is unworkable and confusing to
a jury; and (4) inconsistent with modern Colorado tort law.
a. The Standard is Outdated
First, the rationale for having such a standard in the first place is outdated in
light of modern day technology. Originally, the purpose of applying a “highest
9
degree of care” to common carriers was that “passengers depended upon the carrier
to protect them from hazardous conditions that were frequently encountered in the
early days of public transportation.” Nunez v. Prof. Transit Mgmt. of Tucson, Inc.,
271 P.3d 1104, 1107 (Ariz. 2012). The “highest degree of care” was adopted “at
the advent of the age of steam railroads in the 19th century America. Their
primitive safety features resulted in a phenomenal growth in railroad accident
injuries and with them, an explosion in personal injury litigation.” Bethel v. New
York City Transit Auth., 703 N.E.2d 1214, 1216 (N.Y. 1998).
However, advancements in safety and technology have made public
transportation as safe, if not safer, than private modes of transportation; thus,
various jurisdictions have abandoned the “highest standard of care” and instead
employ the traditional “reasonable person” standard, which “necessarily takes into
account the circumstances with which the actor was actually confronted,”
including “any special relationship of dependency between the victim and the
actor.” Id. at 1216; see also Nunez, 271 P.3d at 1109; Restatement (Second) of
Torts §314A, cmt. e (noting the duty owed by a common carrier is only to exercise
reasonable care under the circumstances).
Subjecting a common carrier to the “highest degree of care” because doing
so is necessary to protect passengers from hazardous activities is particularly
unwarranted here, where Plaintiff was a passenger in a passenger car and was not
10
subjected to any unusual or abnormally hazardous mode of travel. Were Plaintiff
simply a passenger in her friend’s vehicle, and the same alleged circumstances
occurred, Plaintiff’s friend would be subject to a reasonable standard of care for
the same exact conduct. Thus, there is no remaining policy justification to require
taxicabs to be held to a higher standard of care.
b. The Standard Forces Common Carriers to Become Insurers of Their Passengers’ Safety
Second, the “dividing line between the exercise of reasonable care under all
the circumstances and the common carrier doctrine [setting forth the highest
standard of care] is . . . both practically and intellectually elusive.” Nunez, 271
P.3d at 1109. Colorado courts have long recognized that a common carrier is not
an insurer against accidents to their passengers; rather, a common carrier “should
be required to do all that human vigilance and foresight can reasonably accomplish
for the passenger’s safety, consistent with the mode of conveyance, and the
practical operation of the road, not all that the human mind might apprehend as
being likely to ward off any and every imaginable peril.” Colo. & S.R. Co. v.
McGeorge, 46 Colo. 15, 19 (1909) (emphasis in original). However, as noted by
the Arizona Supreme Court, “by requiring that a carrier exercise more care than
that reasonable under the circumstances of the case, the ‘highest degree of care’
instruction approaches the insurance standard, as virtually every accident could be
avoided if the carrier acted differently in some way.” Nunez, 271 P.3d at 1109
11
(emphasis in original). The “highest degree of care” standard has the same effect
here and runs afoul of Colorado Supreme Court precedent recognizing that a
common carrier is not an insurer of its passengers. See McGeorge, 46 Colo. at 19.
c. The Standard is Unworkable and Confusing
Third, as alluded to in the section I.A. above, there is an irreconcilable
“inconsistency of the carrier’s duty of extraordinary care with the fundamental
concept of negligence in tort doctrine.” Bethel, 703 N.E.2d at 1216. This is
because “[t]he objective, reasonable person standard in basic traditional negligence
theory . . . necessarily takes into account the circumstances with which the actor
was actually confronted when the accident occurred, including the reasonably
perceivable risk and gravity of harm to others and any special relationship of
dependency between the victim and the actor.” Id.; see also Imperial Distribution,
741 P.2d at 1255; Engeman Enter., ¶ 23. The inconsistency alluded to in Bethel
has practical results in this case in particular, where CCC asserted a defense of
comparative negligence, and the jury was instructed on that defense. CF at 411.
By simultaneously holding CCC to the “highest degree of care,” but Plaintiff to a
duty of reasonable care, the trial court created an apples-and-oranges situation that
was difficult for the jury to comprehend and apply appropriately.
12
d. The Standard Does Not Comport with Modern Colorado Tort Law
Fourth, requiring that common carriers exercise a “highest degree of care”
toward passengers does not accord with modern Colorado tort law because it
creates a glaring inconsistency with respect to other special relationships.
Colorado recognizes six types of special relationships that may give rise to a duty
of care: “(1) common carrier/passenger, (2) innkeeper/guest, (3) possessor of
land/invited entrant, (4) employer/employee, (5) parent/child, and (6)
hospital/patient.” N.M. v. Trujillo, 2017 CO 79, ¶ 27. Yet only common carriers
are held to the “highest degree of care;” other parties to a special relationship, like
innkeepers, are held to an ordinary duty of reasonable care. See Westin Operator,
LLC v. Groh, 2015 CO 25, ¶ 32. This is the rule even though, under Colorado law,
innkeepers take on special duties with regard to their guests’ safety. Id. at ¶ 29
(“[A]n innkeeper ‘is under’ the following duty to its guests: ‘(a) to protect them
against unreasonable risk of physical harm, and (b) to give them first aid after it
knows or has reason to know that they are ill or injured, and to care for them until
they can be cared for by others.’ (quoting Restatement (Second) of Torts § 314A
(1965) (emphasis in original)).
There is no justification for this disparate treatment under Colorado law.
Indeed, requiring common carriers to act with the “highest degree of care” makes
even less sense when the law requires professionals performing potentially life-
13
threatening procedures on individuals—for example, a physician performing a
risky surgery on a patient—to act in accordance with an ordinary standard of
reasonable care. See, e.g., Day, 255 P.3d at 1069 (“To establish a breach of the
duty of care in a medical malpractice action, the plaintiff must show that the
defendant failed to conform to the standard of care ordinarily possessed and
exercised by members of the same school of medicine practiced by the
defendant.”).
Accordingly, the trial court erred in instructing the jury on the “highest
degree of care” instead of applying the “reasonable person under all the
circumstances” standard. See Pannu v. Jacobson, 909 A.2d 178, 194 (D.C. 2006)
(noting standard of care for doctors and common carriers is the course of action
that a reasonably prudent actor in the same field would have taken); see also Union
Traction Co. of Ind. V. Berry, 121 N.E. 655 (Ind. 1919) (applying reasonable
person standard to common carrier); Frederick v. City of Detroit, 121 N.W.2d 918
(Mich. 1963) (same).
II. THE TRIAL COURT ERRED IN ADMITTING UNDISCLOSED EXPERT WITNESS TESTIMONY REGARDING PLAINTIFF’S INJURIES
A. STANDARD OF REVIEW AND PRESERVATION
“Trial courts have wide latitude to accept or refuse evidence. Reviewing
courts may not overturn evidentiary rulings absent a clear abuse of discretion.”
14
City of Aurora v. Simpson, 105 P.3d 595, 610 (Colo. 2005). A trial court abuses its
discretion when its decision “is manifestly arbitrary, unreasonable, or unfair.”
Huspeni v. El Paso County Sheriff’s Dep’t, 196 P.3d 892, 899 (Colo. 2008).
This issue was preserved. CCC objected repeatedly to Dr. Miranda’s
undisclosed opinions about treatment for concussions and the risk of future
concussions, and the trial court overruled these objections. R. Tr. 1/24/17, p. 44,
ll. 18-20; p. 46, ll. 13-24.
B. ADDITIONAL FACTUAL BACKGROUND
Plaintiff called Charles Miranda, M.D., to testify as an expert witness “in the
area of internal medicine, and specifically with respect to the diagnosis and
treatment of concussions.” R. Tr. 1/24/17, p. 37, ll. 16-19. During Dr. Miranda’s
testimony, CCC objected to two lines of questioning about concussions because
such questioning called for opinions beyond Plaintiff’s expert disclosures and
medical records. First, Plaintiff’s counsel asked Dr. Miranda about the limits of
treating concussions:
Q. Okay. What are the—are there limits to what medical science can do to treat a concussion? MR. OLIVERA: Objection, Your Honor. This has not been disclosed. THE COURT: Overruled. THE WITNESS: Can you repeat the question, please?
15
BY MR. SHEEHAN: Q. Yeah. In other words, when you diagnose somebody with a concussion is there anything that you can do necessarily to fix it? A. Unfortunately, no. We really need to give the brain time to heal. . . . We really just have to give it time for the body to heal itself.
R. Tr., 1/24/17, p. 44, l. 16 – p. 45, l. 8. Second, Plaintiff’s counsel asked two
questions about the future risks of a concussion:
Q. Okay. Are there any things about future risks that you can say occur for somebody that’s suffered a concussion that are non-speculative? That’s sort of a poorly worded question. A. I understand. MR. OLIVERA: Objection, Your Honor. Again, this has not been disclosed. There’s been no disclosure of testimony about future risks of concussion. THE COURT: Overruled. BY MR. [SHEEHAN] Q. Did that question make sense? A. Not really, but if you can repeat it. Q. Okay. I sensed that it was not coming out very well. What kind of future risks can you say a person does encounter, in a non-speculative way, after they’ve suffered a concussion? MR. OLIVERA: Same objection for the record.
16
THE COURT: Overruled. THE WITNESS: Well, the—the thing you’re most concerned with in a concussion is the prolonged cognitive affects [sic] that you can see in someone who has had multiple concussions in the past; someone who’s old, someone who’s young, and has a concussion. There could be long-term consequences; long-term cognitive consequences to that—to that injury. The severity of the concussion can also generally lead to prolonged issues and prolonged problems.
Id., p. 46, l. 8 – p. 47, l. 8.
Before making these rulings, the trial court did not consult Plaintiff’s
C.R.C.P. 26(a)(2) expert disclosures or Dr. Miranda’s medical records. Nor did it
entertain further argument regarding Plaintiff’s non-disclosure of expert witness
opinions. In fact, Dr. Miranda’s medical records do not contain these opinions
regarding concussions and their long-term effects. Rather, as relevant here, the
records show that Dr. Miranda noted “problems” (i.e. indications) of post-
concussion syndrome and ordered an MRI of Plaintiff’s brain, the results of which
were “normal.” See R. Supr. [Suppressed Trial Exhibits] at 120-27.2
C. ANALYSIS
This Court should reverse the trial court because the trial court abused its
discretion in allowing Dr. Miranda to testify beyond his medical records.
2Plaintiff’s entire Exhibit 8 consisted of Dr. Miranda’s records. R. Supr. [Suppressed Trial Exhibits] at 105-36.
17
The purpose of pretrial discovery includes “the elimination of surprise at
trial, the discovery of relevant evidence, the simplification of the issues, and the
promotion of expeditious settlement of cases.” Silva v. Basin W., Inc., 47 P.3d
1184, 1188 (Colo. 2002). To that end, the Colorado Rules of Civil Procedure
provide that the anticipated testimony of expert witnesses must be disclosed ahead
of time and must be limited to the written report, statement, or medical records
provided by the expert, regardless of whether that expert is specially retained or
not. See C.R.C.P. 26(a)(2)(B)(I) (retained expert witness’s “direct testimony shall
be limited to matters disclosed in detail in the report”); C.R.C.P. 26(a)(2)(B)(II)
(non-retained expert witness’s “direct testimony expressing an expert opinion shall
be limited to matters disclosed in detail in the report or statement”); see also Stone
v. Deagle, No. 05-cv-1438-RPM-CBS, 2006 U.S. Dist. LEXIS 90430, at *9-10 (D.
Colo. Dec. 14, 2006) (“[A] ‘treating physician . . . can be deposed or called to
testify at trial without any requirement for a written report.’ Presumably, a written
report from a treating physician is not necessary because the treating physician
prepares contemporaneous notes documenting his observations, findings and
treatments regime.” (quoting Advisory Notes to Fed. R. Civ. P. 26)).
Here, regardless of whether Dr. Miranda is considered as a retained or non-
retained expert witness under C.R.C.P. 26(a)(2), Plaintiff was required to disclose
his opinions ahead of time, and his direct testimony should have been limited to
18
matters expressed in his report or his written records. His medical records did not
contain any opinions about the treatment of concussions or the future effects of
concussions. See R. Supr. [Suppressed Trial Exhibits] at 120-27. Indeed, the
trial court did not even analyze CCC’s objection before overruling it. Thus, the
trial court abused its discretion by failing to sustain CCC’s objections to the non-
disclosed testimony. See Huspeni, 196 P.3d at 899; cf. Daniels v. Rapco Foam,
Inc., 762 P.2d 717, 719 (Colo. App. 1988) (“Because of the importance of Dr.
Allen’s testimony, he should not have been allowed to testify without a full
disclosure of the details of his qualifications and opinions, sufficiently in advance
of trial to enable plaintiffs to prepare effective cross-examination. The court’s
allowance of Dr. Allen’s testimony . . . constituted an abuse of discretion.”).
The trial court’s error was not harmless. Plaintiff’s counsel raised Dr.
Miranda’s testimony in both his opening and closing statements. R. Tr. 1/23/17,
p. 138, ll. 12-22; R. Tr. 1/25/17, p. 127, ll. 19-23. Especially in his opening,
Plaintiff’s counsel emphasized Dr. Miranda’s undisclosed opinion about future
injuries: “Dr. Miranda will explain to you that a conscience [sic] is a brain injury.
It’s another way to say the same thing. And he will also tell you the fact that Ms.
O'Donnell suffered this concussion makes her far more susceptible to concussions
for the rest of her life.” R. Tr. 1/23/17, p. 138, ll. 18-22. Because Dr. Miranda
was only one of two medical experts testifying for Plaintiff, his testimony was
19
particularly important to Plaintiff’s case. For these reasons, the trial court’s
decision to allow Dr. Miranda to testify on undisclosed matters was a reversible
abuse of discretion. Cf. Daniels, 762 P.2d at 719.
III. THE TRIAL COURT ERRED IN ENTERING JUDGMENT ON AN INCONSISTENT JURY VERDICT
A. STANDARD OF REVIEW AND PRESERVATION
“A jury verdict will not be reversed for inconsistency if a reading of the
record reveals any basis for the verdict. The task of the reviewing court is to
examine the instructions, the verdict forms, and the evidence and to determine
from the record whether there was competent evidence from which the jury
logically could have reached its verdict.” Morales v. Golston, 141 P.3d 901, 906
(Colo. App. 2005).
This issue is preserved. Although CCC did not object to the verdict form
before the jury was dismissed, under the circumstances, it was not required to do
so. See id. at 905 (C.R.C.P. 49(a) “does not require a party to object to the
inconsistencies in a jury’s answers to a special verdict before the jury is discharged
in order to preserve its right to challenge the inconsistencies in a subsequent
motion or on appeal”). The special verdict form appears in the record at R. CF at
423-26.
20
B. ADDITIONAL FACTUAL BACKGROUND
As one part of her damages claim, Plaintiff testified that, after the incident,
she could not “do the same things around the house I used to do.” R. Tr. 1/24/17,
p. 193, ll. 13-14. She testified that, due to the “strenuous” nature of certain
activities like housecleaning and landscaping, she started paying people to perform
that work for her. Id., p. 193, l. 17 – p. 194, l. 4. According to Plaintiff, the cost
of these services was $160 a month for housecleaning, and $800 a summer for
landscaping. Id., p. 196, l. 16 – p. 197, l. 5. The jury was instructed that Plaintiff
had a remaining life expectancy of 43 years. R. CF at 414.
During rebuttal closing, Plaintiff’s counsel divided Plaintiff’s alleged
economic damages into two categories: (1) past medical bills related to the
incident, and (2) household services for which Plaintiff would have to pay because
she could no longer perform them. R. Tr. 1/25/17, pp. 133-134. First, Plaintiff’s
counsel argued that Plaintiff was entitled to $57,118.16 for her medical bills. Id.,
p. 133, ll. 8-11; see R. Supr. [Suppressed Trial Exhibits] at 210.
Second, Plaintiff’s counsel argued that Plaintiff was entitled to “roughly”
$2,700 a year for housecleaning and landscaping services because those were
“household things that [Plaintiff] can’t do anymore without being in pain.” R. Tr.
1/25/17, p. 133, l. 20 – p. 134, l. 4. Plaintiff’s counsel then reminded the jury
about the instruction on Plaintiff’s remaining life expectancy. Id., p. 134, ll. 5-9.
21
The trial court instructed the jury on damages as follows:
In determining such damages, you shall consider the following: 1. Any noneconomic losses or injuries which plaintiff has had to the present time or which plaintiff will probably have in the future, including: physical and mental pain and suffering, inconvenience, emotional stress, impairment of the quality of life. 2. Any economic losses or injuries which plaintiff has had to the present time or which plaintiff will probably have in the future, including: loss of earnings or damage to her ability to earn money in the future, reasonable and necessary medical, hospital, and other expenses, and expenses for services that Ms. O’Donnell can no longer perform for herself as a result of her injuries. 3. Any physical impairment. In considering damages in this category, you shall not include damages again for losses or injuries already determined under either numbered paragraph 1 or 2 above.
R. CF at 412.
The jury ultimately returned a verdict awarding Plaintiff $180,000 in
economic damages, $120,000 in noneconomic damages, and $0 in physical
impairment damages. Id. at 423-26.
C. ANALYSIS
This Court should reverse the judgment on the jury’s verdict because the
verdict inconsistently awarded Plaintiff economic damages for future household
22
services while awarding Plaintiff nothing for physical impairment, and there is no
way to logically reconcile this inconsistency.
The Colorado Supreme Court has observed that “‘physical impairment and
disfigurement damages are often the most serious and damaging consequences of a
defendant’s negligence or misconduct.’” Pringle v. Valdez, 171 P.3d 624, 631
(Colo. 2007) (quoting Preston v. Dupont, 35 P.3d 433, 441 (Colo. 2001)).
Damages for physical impairment would be justified if “[t]he tortfeasor caused the
victim to have a permanent injury that she did not have before.” Id. (citing
Thompson v. Nat’l R.R. Passenger Corp., 621 F.2d 814, 824 (6th Cir. 1980)
(“Permanent impairment compensates the victim for the fact of being permanently
injured whether or not it causes any pain or inconvenience; pain and suffering
compensates the victim for the physical and mental discomfort caused by the
injury.”)). The Court explained that, for these reasons, “a separate category for
physical impairment and disfigurement damages is a necessary and important
element in making an injured plaintiff whole.” Id. “If someone tortiously inflicts a
permanent injury on another he or she has taken away something valuable which is
independent and different from other recognized elements of damages such as pain
and suffering and loss of earning capacity.” Preston, 35 P.3d at 441.
Here, the jury awarded Plaintiff damages for housecleaning and landscaping
as part of the economic damages award, because the award of $180,000 for
23
economic damages only makes sense in light of the damages claimed both for past
medical bills (approximately $57,000) and household services (approximately
$117,000, if calculated at approximately $2,700 a year for 43 years). Those two
categories, past medical bills and household services, were the only evidence of
economic damages. However, the jury awarded Plaintiff nothing for physical
impairment. Thus, the jury necessarily found that Plaintiff had not suffered a
permanent injury. See Pringle, 171 P.3d at 631 (damages for physical impairment
justified only if tortfeasor caused permanent injury). Given that the basis of
Plaintiff’s claim for household services damages was that she does not “do the
same things around the house that I used to do,” and “can’t do much [kneeling,
bending down, all that] anymore” as a result of the incident, R. Tr., 1/24/17, p.
193, ll. 14-15, 17-22, the jury’s rejection of her claim for physical impairment
meant the jury rejected her testimony that she suffered a permanent injury
rendering her incapable of performing household services. Thus, it was
inconsistent for the jury to award nothing for physical impairment, but at the same
time award her damages for household services that depended on her being
physically impaired. Without a component of damages for household services,
there was no evidence to support the award of $180,000 for economic damages;
the evidence of medical bills can support only $57,000 of that award.
24
Although the division in Cooley v. Paraho Development Corp., 851 P.2d
207 (Colo. App. 1992), held that a verdict which awarded some amount of future
economic damages but no damages for physical impairment was not inconsistent,
this Court should reach an opposite result here.
First, a decision of one court of appeals division is not binding on another
division. Stokes v. Denver Newspaper Agency, LLP, 159 P.3d 691, 695 (Colo.
App. 2006).
Second, Cooley was decided before the Colorado Supreme Court’s decisions
in Preston and Pringle. Thus, the division in Cooley did not benefit from the
Colorado Supreme Court’s guidance regarding the nature of physical impairment
damages. In Cooley, the trial court had set aside a jury’s award of economic
damages, including damages for future loss of earnings and impairment of earning
capacity, because the jury had awarded no damages for physical impairment. 851
P.2d at 210. The division held that this was error and reasoned that
the jury’s verdict, given a reasonable interpretation in light of the instruction pursuant to which it was rendered, constitutes a finding that plaintiff sustained a physical impairment, that such impairment will result in future pain and suffering and future impairment of plaintiff’s earning capacity and quality of life, but that plaintiff had not and will not suffer any additional losses as a result of that physical impairment.
Id. at 211. So, because the trial court “failed to inform the jury of the nature of the
damages to be awarded in this category [physical impairment],” the jury could
25
have concluded that physical impairment damages “were to recompense plaintiff
for injury or losses different from, and in addition to, the injuries or losses
specifically referred to under the first two categories.” Id.
But under Preston and Pringle, this conclusion is untenable. Because an
award of damages for physical impairment is a finding that “[t]he tortfeasor caused
the victim to have a permanent injury that she did not have before,” Pringle, 171
P.3d at 631, the absence of such a finding is inconsistent with an award of damages
necessarily depending on the existence of a permanent injury. Thus, the jury’s
verdict in this case was inconsistent.
Finally, to the extent this Court follows Cooley, the present case is
distinguishable. Whereas the entire economic damages award was set aside by the
trial court in Cooley because the jury had awarded no damages for physical
impairment, 851 P.2d at 210, here, only some of Plaintiff’s economic damages
would be set aside due to the inconsistent verdict. CCC does not argue that
Plaintiff’s past medical bills are inconsistent with a verdict finding no physical
impairment, only that the household services damages are inconsistent. Thus,
Cooley is not on-point.
Accordingly, because the jury’s verdict is inconsistent, this Court should
reverse the jury’s verdict with respect to Plaintiff’s claimed damages for household
services and reduce the verdict to an award of $57,118.16.
26
CONCLUSION
For these reasons, CCC respectfully requests that this Court reverse the
judgment of the trial court.
Respectfully submitted this 12th day of July, 2017.
s/ Dmitry B. Vilner John Lebsack Keith R. Olivera Dmitry B. Vilner WHITE AND STEELE, P.C.
ATTORNEYS FOR DEFENDANTS- APPELLANTS
27
CERTIFICATE OF SERVICE
I certify that on the 12th day of July, 2017, a true and correct copy of the
foregoing was electronically filed and served via Colorado Courts E-Filing addressed to the following: Michael R. Sheehan, #34934 Attorney at Law, LLC 7400 E. Caley Ave., Ste. 300 Centennial, CO 80111 (720) 381-6146 (303) 694-9370 [email protected]
By: Paula O’Konski Paula O’Konski WHITE AND STEELE, P.C.