Carolyn Harner v. James Chapman, M.D., 2012COA218 (December 27, 2012)

Rarely do courts invite review of their opinions, but in this case the court of appeals urged the Supreme Court to review “the potential inconsistency” between CRE 301 and precedent holding that the res ipsa loquitur doctrine shifts the burden of proof to the defendant. This is a medical malpractice case in which the facts of what actually happened during an angiogram were hotly contested. In Weiss v. Axler, 137 Colo. 544 (1958) the Supreme Court expressly held that if the doctrine applies, the defendant must prove the absence of negligence. In 1979, CRE 301 was adopted, and expressly states that presumptions (such as a presumption of negligence) do not shift the burden of proof. The court of appeals held that Weiss remains good law, and the trial court erred by refusing to instruct the jury that the burden shifted to the defendant to show he was not negligent. A new trial was ordered.


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Filed under Appellate Review Challenged, Evidence, Personal Injury, Torts

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