COURT USE ONLY. Case No.: 2017CA453

Transcription

1 COLORADO COURT OF APPEALS 2 EAST 14 TH AVE. DENVER, CO Appeal from City and County of Denver District Court The Honorable Edward David Bronfin Case No. 16CV30623 Plaintiff/Appellee: JESSICA O DONNELL v. Defendant/Appellant: COLORADO CAB COMPANY, a Colorado Limited Liability Company d/b/a DENVER YELLOW CAB Attorneys for Defendants-Appellants: John M. Lebsack, #9550 Keith R. Olivera, #24437 Dmitry B. Vilner, #43704 White and Steele, PC th Street, Suite 600N Denver, CO Phone: (303) Fax: (303) jlebsack@wsteele.com, kolivera@wsteele.com, dvilner@wsteele.com REPLY BRIEF DATE FILED: September 20, :29 PM COURT USE ONLY Case No.: 2017CA453

2 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 3,397 words (reply brief does not exceed 5700 words). 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

3 TABLE OF CONTENTS INTRODUCTION... 1 ARGUMENT... 1 I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE HIGHEST DEGREE OF CARE... 1 A. STANDARD OF REVIEW AND PRESERVATION... 1 B. THERE IS NO REASON TO KEEP THE OUTMODED HIGHEST DEGREE OF CARE STANDARD IN COMMON CARRIER CASES As Demonstrated by Colorado Case Law, the Standard Is Confusing and Difficult to Apply Plaintiff Fails to Advance Any Policy Reason to Keep The Old Standard The Trial Court s Decision to Apply the Highest Degree of Care Affected the Outcome of this Case... 4 II. THE TRIAL COURT ERRED IN ADMITTING UNDISCLOSED TESTIMONY FROM DR. MIRANDA ON THE TREATMENT AND FUTURE RISKS OF CONCUSSIONS... 6 A. STANDARD OF REVIEW AND PRESERVATION... 6 B. ANALYSIS Dr. Miranda s Testimony Exceeded the Scope of His Disclosures The Nondisclosure was Prejudicial i

4 (CONTINUED) III. THE TRIAL COURT ERRED IN ACCEPTING AN INCONSISTENT VERDICT A. ADDITIONAL FACTS B. ANALYSIS CONCLUSION ii

5 TABLE OF AUTHORITIES Cases Ajay Sports, Inc. v. Casazza, 1 P.3d 267(Colo. App. 2000)...13 American Family Insurance Co. v. DeWitt, 216 P.3d 60 (Colo. App. 2008)... 8 Battle North, LLC v. Sensible Hous. Co., 2015 COA Berra v. Springer & Steinberg, P.C., 251 P.3d 567 (Colo. App. 2010)...6, 7 Bethel v. New York City Transit Authority, 703 N.E.2d 1214 (N.Y. 1998)... 3 Colo. & S.R. Co. v. McGeorge, 46 Colo. 15 (1909)... 3 Cooley v. Paraho Development Corp., 851 P.2d 207 (Colo. App. 1992)... 14, 15 Daniels v. Rapco Foam, Inc., 762 P.2d 717 (Colo. App. 1988)...11 Day v. Johnson, 255 P.3d 1064 (Colo. 2011)...2, 4 Engeman Enterprises, Inc. v. Tolin Mechanical Systems Co., 2013 COA , 3 Hagos v. People, 2012 CO Huspeni v. El Paso Cnty. Sheriff's Dep't, 196 P.3d 892 (Colo. 2008)...11 Imperial Distribution Services, Inc. v. Forrest, 741 P.2d 1251 (Colo. 1987)...2, 3 Nunez v. Professional Transit Management Co. of Tucson, Inc., 271 P.3d 1104 (Ariz. 2012)...3, 5 Preston v. Dupont, 35 P.3d 433 (Colo. 2001)...15 Pringle v. Valdez, 171 P.3d 624 (Colo. 2007)... 14, 15, 16 Silva v. Basin W., Inc., 47 P.3d 1184 (Colo. 2002)...11 iii

6 State v. Melendez, 102 P.3d 315 (Colo. 2004)...6, 7 Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo. 1999)...12 Westin Operator v. Groh, 2015 CO Winkler v. Shaffer, 2015 COA Statutes (7), C.R.S , 15 Rules C.A.R. 10(e)... 9 C.A.R. 35(e)...12 C.R.C.P. 26(a)(2)... 7, 8, 12 C.R.C.P. 26(a)(2)(B)(II)...11 C.R.C.P C.R.C.P. 56(h)... 1 CRE CRE iv

7 INTRODUCTION In her Answer Brief, Plaintiff Jessica O Donnell contends that (1) the trial court applied the correct legal standard in instructing the jury on CCC s duty of care; (2) the trial court did not abuse its discretion in allowing the jury to hear previously-undisclosed testimony regarding the future effects of concussions; and (3) the trial court entered judgment on a consistent jury verdict. These contentions are unavailing and, for the reasons stated in the Opening Brief and this Reply, must be rejected by this Court. ARGUMENT I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE HIGHEST DEGREE OF CARE A. STANDARD OF REVIEW AND PRESERVATION Plaintiff s Answer Brief confusingly presents both the standard of review used when determining whether a court properly instructed a jury on the law (de novo), and the standard used when determining whether a court properly chose the form and style of an instruction (abuse of discretion). As Plaintiff correctly observes, CCC preserved the former issue by filing a motion for determination of law under C.R.C.P. 56(h). Ans. Br., pp Because CCC challenges whether the instruction correctly states the law, it is immaterial whether the trial court abused its discretion in selecting the proper form and style of the instruction. Whatever 1

8 the form and style, the instruction did not properly state the law. Therefore, this Court s review is de novo. See Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). B. THERE IS NO REASON TO KEEP THE OUTMODED HIGHEST DEGREE OF CARE STANDARD IN COMMON CARRIER CASES Plaintiff s Answer Brief fails to advance any compelling reasons for Colorado courts to continue using the highest degree of care standard in negligence cases involving common carriers. 1. As Demonstrated by Colorado Case Law, the Standard is Confusing and Difficult to Apply The cases cited in CCC s Opening Brief, including Imperial Distribution Services, Inc. v. Forrest, 741 P.2d 1251 (Colo. 1987), and Engeman Enterprises, Inc. v. Tolin Mechanical Systems Co., 2013 COA 34, demonstrate the inherent tension in Colorado law between the ordinary duty of reasonable care and the highest degree of care. As another division of this Court observed in Engeman Enterprises, the 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., 23. Yet even though the highest standard [or degree] of care is not a distinct legal standard, the trial court treated it as though it were. Thus, the trial court erred. 2

9 Plaintiff incorrectly contends that, because Imperial Distribution and Engeman Enterprises are not cases involving common carriers, that should end the matter. Although those cases do not involve common carriers, they each discuss broader tort standards that apply across a wide range of cases. Thus, they are instructive in determining whether Colorado courts should continue applying the highest degree of care standard even though [i]n every case, the standard of care is always one of reasonable care. Imperial Distribution, 741 P.2d at Plaintiff Fails to Advance Any Policy Reason to Keep the Old Standard In the Answer Brief, Plaintiff unsuccessfully attempts to distinguishes some of the out-of-state cases cited in CCC s Opening Brief like Nunez v. Professional Transit Management Co. of Tucson, Inc., 271 P.3d 1104 (Ariz. 2012) and Bethel v. New York City Transit Authority, 703 N.E.2d 1214 (N.Y. 1998) because those cases involved other types of common carriers (buses, as opposed to taxis), as well as different types of accidents. But this distinction is misplaced. CCC cited those cases to illustrate why this 19 th century standard, created in the age of steam railroads, is unnecessary and unworkable in the modern day especially after technological advancements have made travel by common carrier as safe, if not safer, than travel in private vehicles. See Bethel, 703 N.E.2d at Similarly, CCC cited Colo. & S.R. Co. v. McGeorge, 46 Colo. 15, 19 (1909), in conjunction with Nunez and Bethel, to support the proposition that although Colorado courts do 3

10 not require common carriers to be insurers of their passengers safety, the highest degree of care standard effectively imposes this requirement on common carriers. Plaintiff also attempts to distinguish several cases cited by CCC, including Westin Operator v. Groh, 2015 CO 25, and Day, 255 P.3d 1064, because those cases did not concern the duties owed by common carriers to their passengers. This argument is also misplaced. Westin Operator and Day demonstrate how Colorado law arbitrarily applies the higher standard of care to the common carrier-passenger relationship, even though other special relationships recognized by Colorado law (like the innkeeper/guest relationship in Westin Operator and the doctor/patient relationship in Day) are subject to the ordinary reasonable care standard. See Westin Operator, 32; Day, 255 P.3d at This distinction is particularly untenable given that some activities (like a performing risky surgery on a patient) present far more of an unusual risk than a passenger riding in a taxi. In short, Plaintiff offers no principled reasons why the highest standard [or degree] of care should continue to apply to common carriers. 3. The Trial Court s Decision to Apply the Highest Degree of Care Affected the Outcome of this Case Finally, Plaintiff contends that CCC did not explain how a reasonable person under the circumstances instruction would have benefitted their case or led to a different outcome, and there is no record support for CCC s argument. Ans. Br., p. 16. This contention must be rejected. 4

11 The highest degree of care instruction was the central instruction on liability in this case. The instruction told the jury that [a]ny failure of CCC to exercise the highest degree of care consistent with the practical operation of it business constituted negligence. R. CF at 408 (emphasis added). In this way, 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 The instruction therefore diverted the jury s focus from evaluating the reasonableness of the driver s conduct under the circumstances, and instead required the jury to consider whether the driver had taken every practical step to avoid the incident. In a case where CCC s liability and Plaintiff s comparative negligence were hotly contested at trial, 1 it is impossible to tell from the record whether the jury simply found Plaintiff s evidence more persuasive, or whether the jury held CCC 1 As set forth in the Opening Brief, CCC presented substantial evidence of Plaintiff s comparative negligence, including prior statements from Plaintiff that she reached back inside the cab after having already stepped out, thereby exposing herself to the danger of being clipped by the departing cab. R. Tr. 1/24/17, p. 218, ll There was also evidence showing that Plaintiff was affected by alcohol during the incident. See R. Tr., 1/24/17, p. 149, ll. 4-7 (Plaintiff s recollection is fuzzy ); R. Tr. 1/24/17, p. 153, ll (Plaintiff drank up to four glasses of wine during the Nuggets game and believed herself to be under the influence of alcohol); R. Supr. [Suppressed Trial Exhibits] at 3, 6-7, 11-13, 15 (medical records reflecting alcohol consumption). 5

12 to a higher standard and discounted evidence favorable to CCC for that reason. In light of the numerous problems in applying the highest degree of care instruction, there is a significant probability that the instruction confused the jury and resulted in the verdict in favor of Plaintiff. Thus, the trial court s decision to give this instruction was not harmless. Accordingly, for these reasons, the trial court committed reversible error in instructing the jury that CCC was required to act with the highest degree of care. II. THE TRIAL COURT ERRED IN ADMITTING UNDISCLOSED TESTIMONY FROM DR. MIRANDA ON THE TREATMENT AND FUTURE RISKS OF CONCUSSIONS A. STANDARD OF REVIEW AND PRESERVATION In the Answer Brief, Plaintiff contends that CCC did not preserve this issue because, despite three contemporaneous objections to Plaintiff s line of questioning to Dr. Charles Miranda about the treatment and future risks of concussions, R. Tr. 1/24/17, p. 44, ll ; p. 46, ll , CCC s objections were non-specific. See Ans. Br., p. 21. This contention must be rejected. Colorado s appellate courts do not require that parties use talismanic language to preserve particular arguments for appeal.... State v. Melendez, 102 P.3d 315, 322 (Colo. 2004). Rather, to preserve the issue for appeal, all that [is] needed [is] that the issue be brought to the attention of the trial court and that the court be given an opportunity to rule on it. Berra v. Springer & 6

13 Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010); see also Melendez, 102 P.3d at 322 (requiring only that the trial court must be presented with an adequate opportunity to make findings of fact and conclusions of law on any issue before [an appellate court] will review it ). Even the existence of some ambiguity in the scope of a party s objection will not result in failure to preserve an issue for appeal. See Battle North, LLC v. Sensible Hous. Co., 2015 COA 83, 13. Here, during trial, CCC contemporaneously objected three times on the grounds that Plaintiff had not disclosed opinions that were the subject of Dr. Miranda s testimony. R. Tr. 1/24/17, p. 44, ll ; p. 46, ll , 23. CCC brought the specific issue (nondisclosure) before the trial court three times, and the trial court ruled on that issue three times, without requesting further argument or documentary support from CCC. See Berra, 251 P.3d at 570. This was sufficient to preserve the issue for appeal. Id. Plaintiff s arguments on appeal are premised on a detailed preservation requirement that is simply not recognize under Colorado law. Plaintiff cites no authority requiring CCC to have elaborated on, renewed, or supplemented its objections once they had been made and ruled on by the trial court. Nor does Plaintiff cite any authority requiring CCC to have made a record of Dr. Miranda s C.R.C.P. 26(a)(2) disclosures, or to have moved for discovery sanctions under C.R.C.P. 37 in the middle of trial. 7

14 Beyond that, Plaintiff s citation of American Family Insurance Co. v. DeWitt, 216 P.3d 60, 65 (Colo. App. 2008), for the proposition that an appellate court may only consider the specific grounds on which a party objected to the admission of evidence in the district court, is inapposite. The court in DeWitt considered whether a general objection to the relevance of a witness s testimony under CRE 401 sufficed to preserve an objection under CRE 403 to the unduly prejudicial effect of such testimony. Id. at 66. In holding that the relevance objection was insufficient, the court relied on decisions by other courts similarly holding that objections based upon hearsay, or the Confrontation Clause, or other evidentiary grounds were insufficient to preserve a CRE 403 objection. Id. Here, in contrast, CCC specifically objected to Dr. Miranda s testimony because it was not disclosed. Had CCC objected to the testimony based on some other grounds, like relevance or hearsay, then Plaintiff s argument might hold water. As it stands, because CCC raised the same issues at trial that it is now raising on appeal, CCC sufficiently preserved this issue. B. ANALYSIS 1. Dr. Miranda s Testimony Exceeded the Scope of His Disclosures Neither Dr. Miranda s C.R.C.P. 26(a)(2) disclosures, nor his medical records, contained the opinions to which he testified at trial. This is not simply an 8

15 issue of technical defects in the disclosure, as Plaintiff argues, but a significant expansion of the opinions of the expert beyond anything in his disclosed records. To be sure, Dr. Miranda treated Plaintiff for an alleged concussion. But as his narrative disclosure 2 demonstrates, Plaintiff did not disclose that Dr. Miranda would testify about (1) the limits to what medical science can do to treat a concussion, and (2) future risks to Plaintiff following her concussion. Those topics are not found in Dr. Miranda s narrative report. See generally Ans. Br., Appx. Rather, the History of Present Illness or Injury portion of Dr. Miranda s narrative shows only that, after Plaintiff complained of pain in her head that had gotten progressively worse, and after he had performed some examinations, Dr. Miranda s impression was that Plaintiff had closed head trauma and back pain. Ans. Br., Appx., p. 2. After a follow-up examination, Dr. Miranda s impression was closed head trauma resulting in post concussion syndrome with mild cognitive impairment. Id. Importantly, the Diagnosis portion of Dr. Miranda s narrative does not mention concussions. Id., p. 3. The Discussion section which mentions specific risks to Plaintiff s musculoskeletal system as a consequence of her 2 Dr. Miranda s disclosures were not part of the original appellate record. The parties stipulated in the trial court, pursuant to C.A.R. 10(e), to supplement the record with these disclosures. The trial court approved the stipulation and supplemented the record by order of September 6, The disclosures were appended to Plaintiff s Answer Brief, and CCC cites to that appendix in this brief. 9

16 Celiac s Disease does not mention concussions. Id., pp The Treatment section which contains specific recommendations for future care of Plaintiffs spinal disease in light of her Celiac s Disease does not mention concussions. Id., p. 4. Similarly, as discussed in more detail in the Opening Brief, Dr. Miranda s medical records do not reflect recommendations for long-term treatment of concussions, or state opinions about Plaintiff s future risk of injury due to the concussion. See R. Supr. [Suppressed Trial Exhibits] at Plaintiff contends that Dr. Miranda s narrative report, combined with his medical records, clearly stated that [Plaintiff] was diagnosed with closed head trauma and post-concussion syndrome, and that this gave CCC reasonable notice that [Plaintiff] would be eliciting testimony from Dr. Miranda concerning the future risks of concussions, and the limits of medical science to treat concussions. Ans. Br., p. 26. But this is a non-sequitur. Plaintiff provides no explanation as to why Dr. Miranda s limited narrative and records would give him license to expand the scope of his testimony at trial. Plaintiff also argues that [a]t no point prior to trial did CCC object to the timing or the contents of Dr. Miranda s narrative, but this argument misses the mark as well: CCC objected at trial precisely because the contents of Dr. Miranda s narrative did not contain the opinions he expressed at trial. 10

17 In any event, the civil rules do not demand that litigants read the tea leaves of an opposing party s disclosures to discern a non-retained expert s likely testimony. Instead, as to non-retained experts like Dr. Miranda, the rules require that direct testimony expressing an expert opinion shall be limited to matters disclosed in detail in the report or statement. C.R.C.P. 26(a)(2)(B)(II); see also Silva v. Basin W., Inc., 47 P.3d 1184, 1188 (Colo. 2002) (civil rules promote the elimination of surprise at trial, the discovery of relevant evidence, the simplification of the issues, and the promotion of expeditious settlement of cases ). Nor do the rules require, as Plaintiff obliquely suggests, that a party necessarily depose an expert prior to trial so as to obtain additional opinions. Under these circumstances, the Court s decision to allow Dr. Miranda to testify about undisclosed opinions was an abuse of discretion. See Huspeni v. El Paso Cnty. Sheriff s Dep t, 196 P.3d 892, 899 (Colo. 2008); cf. Daniels v. Rapco Foam, Inc., 762 P.2d 717, 719 (Colo. App. 1988) 2. The Nondisclosure was Prejudicial The trial court s error in admitting Dr. Miranda s testimony substantially prejudiced CCC s case, and was therefore not harmless. Dr. Miranda s testimony was crucial to Plaintiff s case. In her opening statement, Plaintiff previewed Dr. Miranda s testimony on the future risks of concussions. R. Tr. 1/23/17, p. 138, ll And in her closing statement, 11

18 though not discussing concussions specifically, Plaintiff appealed to Dr. Miranda s expertise as being the only one of any of us that has ever worked in an emergency room. R. Tr. 1/25/17, p. 110, ll Dr. Miranda was also one of only two medical experts called by Plaintiff in the case. Plaintiff s argument based on Todd v. Bear Valley Village Apartments, 980 P.2d 973, 978 (Colo. 1999), is unavailing for two reasons. First, this Court must evaluate harmless error under CAR 35(e). Under harmless error review, this Court must reverse if the error affects the substantial rights of the parties. See Hagos v. People, 2012 CO 63, 12. An error affects a party s substantial rights if it substantially influenced the verdict or affected the fairness of the trial proceedings. Id. Thus, the Todd standard is inapplicable. But even if it applied, at least four of the five Todd factors (importance, explanation for lack of disclosure, 4 prejudice and surprise, and availability of continuance in the middle of trial) militate in favor of CCC for the reasons set forth above. 3 In the Opening Brief, on page 18, CCC inadvertently cited an incorrect portion of the record (R. Tr. 1/25/17, p. 127, ll ) in referring to Plaintiff s discussion of Dr. Miranda s testimony in his closing statement. The correct citation is R. Tr. 1/25/17, p. 110, ll Plaintiff does not offer an explanation for why Dr. Miranda s opinions were not disclosed. The lack of disclosure is especially curious because Plaintiff took the extra step of procuring a narrative from Dr. Miranda for his C.R.C.P. 26(a)(2) disclosures, rather than just relying on his records. 12

19 Finally, in the Answer Brief, Plaintiff contends that CCC should have presented an offer of proof as to what it would have done or shown had it not been surprised by Dr. Miranda s testimony, but the cases Plaintiff cites do not support this proposition. Rather, in Ajay Sports, Inc. v. Casazza, 1 P.3d 267, 275 (Colo. App. 2000), the court held that, although certain expert witness testimony was not disclosed, the error was harmless because (1) the issue had been raised in the trial management order; (2) other plaintiffs formerly in the case had raised the issue in their disclosures; and (3) the defendant had intended to present his own expert on the issue, and had signed the trial management order to that effect. Id. at And Winkler v. Shaffer, 2015 COA 63, 10, concerned the failure of a defendant to request a continuance of trial following a deposition, as well as the defendant s failure to make an offer of proof in the 10-day period before trial. Here, none of the circumstances that made lack of disclosure harmless in Ajay or Winkler are present. Accordingly, the trial court erroneously admitted Dr. Miranda s testimony on the limits of medical science in treating concussions, as well as the future risks to Plaintiff from her alleged concussion. This error was not harmless. Thus, this Court should reverse the trial court s judgment. 13

20 III. THE TRIAL COURT ERRED IN ACCEPTING AN INCONSISTENT VERDICT A. ADDITIONAL FACTS In the Answer Brief, Plaintiff presents additional facts concerning Dr. Fredrick Sonstein s treatment of her alleged back injury, as well as her own testimony about feeling pain in her back and having to hire house cleaners and landscapers to assist her. CCC does not dispute (nor could it) that Plaintiff introduced such evidence at trial; rather, the thrust of CCC s argument is that, despite hearing this evidence from Plaintiff, the jury found that Plaintiff suffered no permanent impairment. Thus, the additional facts presented by Plaintiff are largely irrelevant to this issue on appeal. B. ANALYSIS By and large, Plaintiff simply encourages this Court to adopt the division s analysis in Cooley v. Paraho Development Corp., 851 P.2d 207 (Colo. App. 1992). For the reasons set forth in the Opening Brief, this Court should depart from the division s reasoning in that case, and hold that the jury s decision to award Plaintiff $0 in damages for physical impairment makes the jury s verdict inconsistent. To the extent that Plaintiff argues that Pringle v. Valdez, 171 P.3d 624 (Colo. 2007), is inapplicable because that case concerns the seatbelt defense statute, section (7), C.R.S. 2016, Plaintiff s argument misses the mark. 14

21 To be sure, Pringle centered on whether section (7), under which a defendant may introduce evidence of a plaintiff s failure to wear a seatbelt in order to mitigate the plaintiff s damages, would result in mitigation of all non-economic damages, or merely those labelled pain and suffering damages. Id. at 628. However, Pringle moved well beyond this limited context and discussed physical impairment damages generally. See id. at 631 ( Under Colorado common law, damages for physical impairment and disfigurement have historically been recognized as a separate element of damages.... Our analysis of the common law and principles underlying our discussion in [Preston v. Dupont, 35 P.3d 433 (Colo. 2001)] that physical impairment and disfigurement constitute a separate category of damages from noneconomic damages stands. ). Notably, in discussing the overall nature of physical impairment damages, the court in Pringle relied on earlier precedents, including Preston, that analyzed physical impairment damages in other, non-seatbelt contexts. Pringle, 171 P.3d at 631. In short, despite Plaintiff s arguments to the contrary, the Colorado Supreme Court s pronouncements on physical impairment damages in Pringle go well beyond the limited context of the seatbelt defense. As argued in the Opening Brief, the division s holding in Cooley is untenable in light of the supreme court s guidance in Preston and Pringle. The supreme court held in Pringle that an award of damages for physical impairment 15

22 amounts to finding that [t]he tortfeasor caused the victim to have a permanent injury that she did not have before. 171 P.3d at 631. Because there was no such finding by the jury here, the jury necessarily found that Plaintiff did not suffer a permanent injury. Thus, the jury s award of damages necessarily depending on the existence of a permanent injury namely, the household services and landscaping award in the amount of almost $120,000 is inconsistent and must be reversed. CONCLUSION For the reasons in the Opening Brief and this Reply, CCC respectfully requests that this Court reverse the judgment of the trial court. Respectfully submitted this 20th day of September, s/ Dmitry B. Vilner John Lebsack Keith R. Olivera Dmitry B. Vilner WHITE AND STEELE, P.C. ATTORNEYS FOR DEFENDANTS- APPELLANTS 16

23 CERTIFICATE OF SERVICE I certify that on the 20th day of September, 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 (720) (303) michael@sheehanlawdenver.com By: Charlene Falk Charlene Falk WHITE AND STEELE, P.C. 17