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 OPENING BRIEF DATE FILED: July 12, :06 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 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

3 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 Colorado Law Treats the Highest Degree of Care as a Variant of the Duty of Reasonable Care The Highest Degree of Care Is Not an Appropriate Standard of Care... 8 a. The Standard is Outdated... 8 b. The Standard Forces Common Carriers to Become Insurers of Their Passengers Safety c. The Standard is Unworkable and Confusing d. The Standard Does Not Comport with Modern Colorado Tort Law II. THE TRIAL COURT ERRED IN ADMITTING UNDISCLOSED EXPERT WITNESS TESTIMONY REGARDING PLAINTIFF S INJURIES A. STANDARD OF REVIEW AND PRESERVATION B. ADDITIONAL FACTUAL BACKGROUND C. ANALYSIS i

4 TABLE OF CONTENTS (Continued) III. THE TRIAL COURT ERRED IN ENTERING JUDGMENT ON AN INCONSISTENT JURY VERDICT A. STANDARD OF REVIEW AND PRESERVATION B. ADDITIONAL FACTUAL BACKGROUND C. ANALYSIS CONCLUSION ii

5 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 , 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 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 iii

6 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 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 iv

7 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. 1

8 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 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 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 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 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 2

9 [her] backwards. Id., p. 157, ll 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 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 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 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 The trial court entered an amended judgment on March 13, CF

10 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. 4

11 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 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 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. 5

12 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 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 Over CCC s continuing objection, the trial court instructed the jury as follows: Id. at 408. 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. 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. 6

13 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 (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 7

14 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 8

15 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 19 th 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 9

16 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 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

17 (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 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. 11

18 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- 12

19 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. 13

20 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 ; p. 46, ll 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 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? 14

21 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. 15

22 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 postconcussion syndrome and ordered an MRI of Plaintiff s brain, the results of which were normal. See R. Supr. [Suppressed Trial Exhibits] at 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. 2 Plaintiff s entire Exhibit 8 consisted of Dr. Miranda s records. R. Supr. [Suppressed Trial Exhibits] at

23 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 nonretained 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 17

24 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 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 nondisclosed 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 ; R. Tr. 1/25/17, p. 127, ll 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 Because Dr. Miranda was only one of two medical experts testifying for Plaintiff, his testimony was 18

25 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

26 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 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 First, Plaintiff s counsel argued that Plaintiff was entitled to $57, 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

27 The trial court instructed the jury on damages as follows: R. CF at 412. 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. 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 C. ANALYSIS This Court should reverse the judgment on the jury s verdict because the verdict inconsistently awarded Plaintiff economic damages for future household 21

28 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 22

29 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 , 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. 23

30 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 24

31 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,

32 CONCLUSION For these reasons, CCC respectfully requests that this Court reverse the judgment of the trial court. Respectfully submitted this 12th day of July, s/ Dmitry B. Vilner John Lebsack Keith R. Olivera Dmitry B. Vilner WHITE AND STEELE, P.C. ATTORNEYS FOR DEFENDANTS- APPELLANTS 26

33 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 (720) (303) michael@sheehanlawdenver.com By: Paula O Konski Paula O Konski WHITE AND STEELE, P.C. 27