While the term “treatment” has a prospective focus, the term “diagnosis” does not. – Opinion. After an ER visit, Patient was left brain dead. Afterwards, his roommate asked a doctor if past cocaine use could have been a cause. At trial, roommate’s statement to the doctor was the focus of the defense case. The trial court admitted the evidence and doctors won. The court of appeals held the admission of drug-use evidence was error. The Court disagreed, holding that CRE 803(4), the medical diagnosis or treatment hearsay exception, applied. Statements offered to determine the nature, source or cause of a condition, which also describe medical history and are pertinent to the diagnosis, are excepted, as in this case. No further inquiry into roommate’s motives was required, nor was subjective reliance by the doctor. And, though prejudicial, the statements were not unfair. Doctors win.
Tag Archives: Experts
“Integrity has no need of rules.” Albert Camus. There is no question that paying a testifying witness a contingent fee based on the outcome of the case is prohibited. But such evidence is not excluded per se. The court of appeals came to that conclusion because trial courts have discretion to admit testimony generally. Next, the court of appeals determined that the paid witness was properly permitted to summarize evidence already admitted into the record without violating CRE 602. Similarly, the witness’s summary exhibits were properly admitted, again because they were based on admitted evidence. Moving on, it held that a nonparty at fault could not be designated based on vicarious liability alone. The court then upheld the trial court’s decisions 1) to deny a directed verdict on a fraud claim and the economic loss rule and, 2) found a CRE 701 objection was not preserved for appeal.
William G. Strudley and Beth E. Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, 2013 COA 106 (July 3, 2013)
“Coal seam gas stinks.” – Anti-fracking poster. In this case, home-owner Plaintiffs sued four oil and gas companies claiming pollutants from drilling activities at three well sites contaminated their air, water, and land around their home. The trial court issued a modified case management order that required Plaintiffs to make a prima facie case in support of their toxic tort claims before discovery began — commonly called “Lone Pine” orders. Plaintiffs produced evidence of well water contamination and expert reports, but not evidence that the drilling caused their injuries. The trial court dismissed with prejudice. The court of appeals reversed because: 1) trial courts lack discretion under CRCP 16(c) to issue such orders; 2) the case was not complex or extraordinary enough to depart from normal procedure; and 3) existing procedures protect against meritless claims.
Lynda S. Gibbons, Brent Wilson, and Gibbons-White, Inc., v. Gregory T. Ludlow, S. Reid Ludlow, and Jean E. Cowles, 2013CO49 (July 1, 2013)
“He who lives by the crystal ball soon learns to eat ground glass.” – Edgar R. Fiedler. In this case, the Court held that recovering damages for the bad advice of a transactional real estate broker requires proof of what would have happened but-for the bad advice. Analogizing to legal malpractice claims, the Court noted that a plaintiff must show either that he: 1) would have been able to obtain a “better deal” or 2) would have been better off with “no deal.” Both require proof that the professional’s negligent acts or omissions caused the client damages. Here, Plaintiff claimed lost profits as damages, requiring proof of either the amount of the profits that would have been earned or the fact that profits would have been earned. Plaintiff had an appraisal. The appraisal wasn’t proof a future sale of the property would have been better or different than the actual sale. Dismissal affirmed.
Mile High Cab, Inc. v. Colorado Public Utilities Commission and SuperShuttle International Denver, Colorado Cab Company, and MKBS, LLC 2013CO26 (April 22, 2013)
Proof by a preponderance of the evidence means probable not possible. Here, a taxi service sought a Certificate of Public Convenience and Necessity from the Public Utilities Commission so it could operate in Denver. Existing taxi companies objected, claiming another taxi service would cause oversupply in the market and not lead to robust competition. An ALJ concluded there was a significant “possibility” the objectors were right. The PUC affirmed, using “possibility” and “probability” interchangeably. The Court held that “probable” expresses higher confidence than “possible,” and is closer to “preponderance.” Thus, objectors must prove, and the PUC must clearly manifest an intent to apply a preponderance standard to find that a Certificate was not required, and issuing one would actually be detrimental. The PUC did not do so; the denial of the Certificate was reversed.
William P. Settle and Corinna Settle v. Janet M. Basinger, M.D. and Rio Grande Hospital, 2013COA18 (February 28, 2013)
“O Captain! my Captain! our fearful [intubation] is done” – Walt Whitman. Two nurses and a doctor made a number of failed attempts to intubate a Patient prior to an Air Life transport. The attempts injured Patient’s throat who sued, among others, the ER doctor and hospital who handed him off to Air Life staff. Plaintiff appealed partial summary judgment in favor of hospital and ER doctor on issues of vicarious liability and certain evidentiary rulings at trial. The court of appeals held: 1) the “captain of the ship” doctrine does not apply to ER doctors and 2) negligent supervision cannot be brought under vicarious liability doctrines. The court also upheld the exclusion of facts plaintiff sought to use for impeachment, including the medical history of the ER doctor and that both the defendant and an expert witness were insured by the same carrier. Trial court’s rulings were affirmed.
At the heart of contract law is a principle of risk management and allocation. This case involves Prestige indemnifying Target for injuries caused by a Prestige employee. Target sued Prestige after its employee fell and claimed workers’ compensation. The trial court found for Target and awarded damages for past and future damages. Prestige appealed the award of future damages. The court of appeals held: 1) future damages are a substantive issue, not one of judicial administration, so MN law applied as stated in the contract. But, CO law applied to matters regarding the conduct of the litigation: whether an issue was preserved for appeal and the standard of review; 2) the issue was preserved because future damages were addressed during closing and by the court; 3) the award was supported by evidence that the damages were reasonably likely to occur as estimated by an expert. Affirmed.
Scene 1: “I just got rear-ended – I’m OK, just shaken.” Scene 2, days later: “My neck and back really hurt.” So starts a familiar drama in this personal injury case. The defense in this damages-only trial was how much of the medical bills the defendant should pay. The trial court instructed the jury to reduce damages if they found plaintiff had continued expensive treatment though it did not resolve her pain. The court of appeals reversed, finding zero support for the proposition that a plaintiff has an affirmative duty to end treatment if it is expensive and ineffective. Another instruction on the reasonableness and necessity of treatment, which was also given, sufficiently addressed the issue. Addressing evidentiary issues, the court cited Cosgrove for the collateral source rule, and approved admission of evidence of delayed recovery syndrome and previous domestic violence.
In Re Stacy Warden and Chris Warden as representatives of Noah Warden, a minor child v. Exempla, Inc. d/b/a Exempla Healthcare, et. al., 2012CO74 (December 20, 2012)
As we have re-discovered, after a tragedy people look for a cause. In this medical malpractice case, a baby was born with brain damage after being deprived of oxygen. The parents claim the cause was failure to monitor the baby during birth; the hospital claims the damage preceded labor. Three of Plaintiff’s experts were excluded. The Court reversed the exclusions. The first expert was excluded because she did not respond to Defendants’ experts. The Court disagreed, as she might refute Defendants’ theory of causation which relied heavily on a study she critiqued. Two experts addressing the child’s life expectancy were excluded as an “ambush.” The testimony should have been initially disclosed, but the delay was harmless because: 1) the trial is months away, 2) the importance to Plaintiff’s claim, 3) Defendants’ own experts raised the defense, and 4) lack of evidence of bad faith.
Win the battle, lose the war. In this construction contract case, on the evening before trial and after a year of litigation, Defendant moved to dismiss Plaintiff’s tort claim on the grounds that it was barred by the economic loss rule. The trial court did so, ostensibly under CRCP 12(b), but allowed Plaintiff to add a breach of contract claim. Plaintiff won at trial. Defendant sought, but was denied, mandatory attorneys’ fees because the tort claim was dismissed. The court of appeals held that, because Defendant moved to dismiss after the answer was filed, it was a CRCP 12(c) motion, so fee awards are not mandatory. The court also held that when a construction contract provides its own standard by which work must be performed, the contract’s standard applies, not industry standards. And, if a lay person could apply that standard, expert testimony may not be, and was not required here.