Acierno Ex Rel. Acierno v. Garyfallou

COLORADO COURT OF APPEALS 2016COA91
Court of Appeals No. 14CA1259
City and County of Denver District Court No. 12CV2482
Honorable Herbert L. Stern, III, Judge
Martin Acierno, by and through his Co-Guardians, Kathleen Acierno and
Cheryl Acierno,
Plaintiff-Appellant and Cross-Appellee,
v.
Garyfallos Garyfallou, M.D.,
Defendant-Appellee and Cross-Appellant.
JUDGMENT AFFIRMED, ORDER REVERSED,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE BOORAS
Webb and J. Jones, JJ., concur
Announced June 16, 2016
Leventhal & Puga, P.C., Jim Leventhal, Hollynd Hoskins, David P. Masons,
Benjamin I. Sachs, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee
Hershey Decker, PLLC, C. Todd Drake, Lone Tree, Colorado, for Defendant-
Appellee and Cross-Appellant
¶1 Plaintiff, Martin Acierno, by and through his co-guardians,
Kathleen Acierno and Cheryl Acierno, appeals the trial court’s
judgment entered on a jury verdict in favor of defendant, Garyfallos
Garyfallou, M.D. (Dr. Garyfallou). The trial court’s judgment is
affirmed.
¶2 Dr. Garyfallou cross-appeals the trial court’s order denying, in
its entirety, his motion for costs. He contends that under section
13-16-105, C.R.S. 2015, an award of costs to a prevailing defendant
is mandatory. We agree and therefore reverse the trial court’s order
denying Dr. Garyfallou’s request for costs.
I. Background
¶3 In 2010, Mr. Acierno was transported by ambulance to St.
Anthony’s North hospital with complaints of slurred speech and
numbness in his left arm.
¶4 When Mr. Acierno arrived at the hospital, he was examined by
Dr. Garyfallou, an emergency room physician. By that time, many
of Mr. Acierno’s symptoms had dissipated. However, because Mr.
Acierno had suffered an earlier stroke, Dr. Garyfallou ordered a
1
computerized tomography (CT) scan.1 When the CT scan showed
no signs of a brain bleed, Dr. Garyfallou admitted Mr. Acierno to St.
Anthony’s North and diagnosed him with a transient ischemic
attack. Dr. Garyfallou then sent Mr. Acierno for a magnetic
resonance imaging2 (MRI) and a magnetic resonance angiography3
(MRA).
¶5 While he was in the MRI machine, Mr. Acierno exhibited
rhythmic-like movement, intermittent left arm movement, and
involuntary eye movement. The nurse who was performing the MRI
called Dr. Garyfallou to examine Mr. Acierno. Dr. Garyfallou
concluded that Mr. Acierno had most likely had a seizure, so he
ordered seizure medicine.
¶6 A radiologist interpreted the MRI and MRA images. He gave
Dr. Garyfallou his opinion that the MRI showed “some atheroma,
which is cholesterol, debris, chronic stuff in the blood vessels,
and/or thrombus, which is a clot.” By that time, Dr. Garyfallou’s
1 A computerized tomography is a medical imaging procedure that
utilizes cross-sectional images for diagnostic purposes.
2 Magnetic resonance imaging refers to a procedure by which
doctors can view internal structures of the body in detail, including
the brain.
3 Magnetic resonance angiography refers to a method of imaging
that allows a doctor to view blood vessels.
2
shift had ended, so he passed off Mr. Acierno’s care to another
physician.
¶7 Shortly thereafter, Mr. Acierno was transferred to the primary
stroke center at St. Anthony’s Central hospital for a stroke
assessment.
¶8 There, a neurologist diagnosed Mr. Acierno with a brainstem
stroke. The stroke resulted in severe brain damage: Mr. Acierno
now has quadriplegia and “locked in” syndrome, meaning that
although he is cognitively intact, it is unlikely that he will regain
any meaningful ability to move his body.
¶9 Mr. Acierno filed a medical malpractice suit against Dr.
Garyfallou, his other treating physicians, and both hospitals. With
respect to Dr. Garyfallou, Mr. Acierno alleged negligence in failing to
diagnose a stroke that he had suffered before Dr. Garyfallou left the
hospital.
¶ 10 With the exception of Dr. Garyfallou, all defendants settled.
The case then proceeded with a jury trial on Mr. Acierno’s
negligence claims against Dr. Garyfallou. The jury returned a
verdict in favor of Dr. Garyfallou, finding that he had not been
negligent.
3
II. Mr. Acierno’s Appeal
A. Motions for a Mistrial and a New Trial
¶ 11 Mr. Acierno contends that the trial court erred when it denied
his motions (1) for a mistrial based on defense counsel’s
misconduct in closing argument and (2) for a new trial based on
that same misconduct and other irregularities at trial. We discern
no abuse of discretion.
1. Additional Background
¶ 12 Before closing argument, Mr. Acierno tendered the following
jury instruction on the applicable standard of care:
To determine whether such a physician’s
conduct was negligent, you must compare that
conduct with what a physician having and
using the knowledge and skill of physicians
practicing in the same specialty or holding
themselves out as having the same special skill
and knowledge, at the same time, would or
would not have done under the same or
similar circumstances.
(Emphasis added.) Defense counsel objected to the inclusion of the
emphasized portion of the instruction. The trial court overruled the
objection and approved Mr. Acierno’s proposed standard of care
instruction.
4
¶ 13 During closing argument, defense counsel used a PowerPoint
slide that omitted the portion of the standard of care instruction to
which he had previously objected. Mr. Acierno’s counsel objected to
the slide on the basis that it was a misstatement of the applicable
standard of care. The trial court responded, “The jury has the
instructions. [It] can review them.” Defense counsel then made the
following argument: “Who is the expert of the same specialty that
came in and told you about the standard of care in this case?
That’s Dr. Rosenberg. That’s Dr. Burcham. That’s Dr. Hoffman.
All emergency room physicians.”
¶ 14 Defense counsel ended his closing argument as follows:
[Mr. Acierno’s counsel] has also argued that
Dr. Garyfallou’s blaming people. The only
people you heard that blamed anybody in this
case came from the plaintiff’s side of the case.
Dr. Futrell and Dr. Jones blamed every one of
those defendants that settled, and they blamed
Dr. Garyfallou. And [Mr. Acierno’s counsel],
who retained those experts, blamed every one
of those doctors who settled.
There are reasons that physicians settle cases
that don’t have anything to do with the
standard of care. . . . Dr. Garyfallou has
courage, conviction, and confidence. The
courage to stand up before you and say my
care was good. Conviction that his care was
appropriate. And confidence that you as
5
jurors will see that. Confidence that these
other reasons for settling cases, runaway
verdicts, runaway juries, media related to
adverse care, will not cloud your judgment[.]
¶ 15 Mr. Acierno’s counsel objected, arguing that defense counsel’s
comments were “completely inappropriate.” The trial court
sustained the objection, stating that the comments were
“completely and utterly inappropriate, appealing to the passions
and prejudices of the jury.” It added that it was “shocked” by the
argument.
¶ 16 The trial court then asked Mr. Acierno’s counsel if he wanted
the court to consider a motion for a mistrial. Mr. Acierno’s counsel
responded that he did, and the trial court said that it would take
the motion under consideration.
¶ 17 The court then admonished defense counsel in front of the
jury: “Jurors, there was an objection to [defense counsel’s] last
comments, that objection was sustained. Those comments are to
be utterly and completely disregarded by you. They were
inappropriate and do not belong in this type of a proceeding.”
¶ 18 During a recess before rebuttal closing argument, Mr.
Acierno’s counsel made an additional record in regard to his motion
6
for a mistrial. He argued that defense counsel’s (1) improper
argument and (2) misstatement of the standard of care instruction
warranted a mistrial. Mr. Acierno’s counsel contended that the trial
court’s previous instruction and admonition were insufficient to
cure the prejudice stemming from defense counsel’s improper
comments.
¶ 19 With respect to the improper comments, the trial court said
that it was “not sure” that its previous admonition and instruction
had been sufficient. Regarding the standard of care instruction, the
trial court concluded that defense counsel had presented an
“incomplete” version of the instruction, but that Mr. Acierno’s
counsel could “point that out on his own.”
¶ 20 After the recess, the trial court, on its own initiative, addressed
the jury: “Jurors, I apologize for the longer-than-anticipated break.
I feel that I have no choice but to reiterate to you that certain of
those comments, certain of the statements that I cautioned you
against earlier by [defense counsel] were, in my view, beyond
inappropriate and we’ve been discussing that.” It again instructed
the jury that the improper comments were “to be completely and
utterly disregarded.”
7
¶ 21 During rebuttal closing, Mr. Acierno’s counsel argued,
When [defense counsel] got up and told you
and [represented the standard of care
instruction], he had retyped the instruction
and misrepresented the law to you. You have
a copy of it.
The second paragraph, ‘To determine whether
a physician’s conduct was negligent, you must
compare that conduct with what a physician
having and using the knowledge and skill of
physicians practicing in the same specialty’
and that’s where he stopped, but our job is not
to stop, our job is to make sure you have the
law, ‘or holding themselves out as having the
same special skill and knowledge, at the same
time, would or would not have done under the
same or similar circumstances.’
¶ 22 After trial, Mr. Acierno filed a written motion for a mistrial
alleging defense counsel’s misconduct. He also filed a motion for a
new trial, under C.R.C.P. 59(d). In it, he reasserted his arguments
related to his motion for a mistrial. He also argued that a number
of irregularities had prevented him from receiving a fair trial.
Specifically, Mr. Acierno contended that (1) witnesses gave
testimony at trial that differed from their deposition testimony; (2) a
defense witness violated the trial court’s sequestration order; and
(3) a juror slept during trial and was generally inattentive.
8
¶ 23 The trial court later held a hearing on Mr. Acierno’s motion for
a mistrial, at which both parties offered extensive argument as to
whether the court should grant the motion.
¶ 24 Ultimately, the trial court denied Mr. Acierno’s motion for a
mistrial. In doing so, the court concluded that it should have
sustained Mr. Acierno’s counsel’s objection to defense counsel’s
misstatement of the applicable standard of care. And it observed
that defense counsel’s “use of an abbreviated [s]tandard of [c]are
[i]nstruction was careless and/or a deliberate attempt at jury
nullification given his earlier objection to the Court’s approved
instruction.” But the trial court noted that it “must presume that
the jury followed the jury instructions and the verbal corrective
instructions presented by the Court.” It continued, “[t]herefore,
while an extremely close call, the Court cannot find that [d]efense
[c]ounsel’s conduct, which was calculated, deliberate, and
knowingly improper, was so pervasive and prejudicial to undermine
the integrity of the jury’s verdict.”
¶ 25 The trial court also denied Mr. Acierno’s motion for a new trial
based on the alleged irregularities.
9
2. Standard of Review and Applicable Law
¶ 26 A mistrial is a drastic remedy that is warranted only when the
prejudice to the moving party cannot be addressed by other means.
Wark v. McClellan, 68 P.3d 574, 578 (Colo. App. 2003).
¶ 27 A C.R.C.P. 59(d)(1) motion for a new trial may be granted when
“[a]ny irregularity in the proceedings . . . prevented [the moving
party] from having a fair trial.”
¶ 28 Trial courts are in the best position to evaluate the prejudicial
impact of misconduct by opposing counsel, see Antolovich v. Brown
Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007), and of any
irregularities at trial, see First Nat’l Bank v. Campbell, 198 Colo.
344, 346, 599 P.2d 915, 917 (1979) (“Whether or not a new trial is
granted is usually a matter for the sound discretion of the trial
judge whose presence and observation at the trial better equip him
for making this decision.”). Accordingly, we review for an abuse of
discretion the trial court’s denial of Mr. Acierno’s motions for a
mistrial and a new trial. Antolovich, 183 P.3d at 608; Wark, 68 P.3d
at 578. A trial court abuses its discretion only if its decision was
manifestly arbitrary, unreasonable, or unfair, or based on an
10
erroneous understanding or application of the law. See, e.g., Core-
Mark Midcontinent Inc. v. Sonitrol Corp., 2016 COA 22, ¶ 28.
3. Discussion
a. Motion for a Mistrial
¶ 29 Mr. Acierno asserts that defense counsel’s (1) misstatement of
the trial court’s jury instruction on the applicable standard of care
and (2) improper comments related to “runaway juries, runaway
verdicts, and adverse media” warranted a mistrial.
¶ 30 Although we agree with the trial court that this case presents
“an extremely close call,” under the circumstances, we cannot
conclude that the trial court abused its discretion in denying Mr.
Acierno’s motion.
¶ 31 First, the trial court gave Mr. Acierno’s motion for a mistrial
careful consideration. See id. (a trial court abuses its discretion
when its decision is manifestly arbitrary, unreasonable, or unfair).
Mr. Acierno raised his motion orally after defense counsel finished
his closing argument. The trial court took the motion under
advisement, and Mr. Acierno later filed a written motion, to which
defense counsel filed a response. The court then held a post-trial
hearing solely on the issue of whether a mistrial was warranted.
11
Both parties were given an opportunity to present argument and
answer the trial court’s questions related to the parties’ filings.
Thus, based on the procedural posture in which the trial court
reached its decision, it is evident that the court carefully considered
Mr. Acierno’s motion for a mistrial. In other words, its decision was
not arbitrary. See id.
¶ 32 Second, with respect to defense counsel’s misstatement of the
standard of care instruction, we agree, for the following reasons,
that a mistrial was unnecessary. See Wark, 68 P.3d at 578.
 Before closing arguments, the trial court instructed the jury
(1) on the complete version of the standard of care and (2) that
arguments of counsel are not evidence. As the trial court
noted, absent evidence to the contrary, we presume that the
jury followed those instructions. Qwest Servs. Corp. v. Blood,
252 P.3d 1071, 1088 (Colo. 2011).
 Although the trial court later concluded that it should have
sustained the objection to the incomplete instruction, when
the objection was made, the court noted that the jury had, and
could read, a complete version of the standard of care
instruction. See id.
12
 After defense counsel presented the incomplete standard of
care instruction, he referred to the testimony of Mr. Acierno’s
neurology experts.
 During the recess after defense counsel’s closing argument,
the trial court told Mr. Acierno’s counsel that he was free to
direct the jury’s attention to defense counsel’s incomplete
representation of the standard of care instruction. Mr.
Acierno’s counsel did so. Specifically, in rebuttal closing, he
told the jury that defense counsel “misrepresented the law”
and then read the complete instruction to the jury highlighting
the portion that had been omitted by defense counsel. See
Wark, 68 P.3d at 578 (the drastic remedy of a mistrial is
warranted only where the prejudice to the moving party
cannot be remedied by alternative measures).
¶ 33 Third, with respect to defense counsel’s statements in closing
argument, we similarly conclude that a mistrial was not warranted
because the trial court’s remedial actions, along with its
instructions to the jury, were sufficient to address any prejudice to
Mr. Acierno. See id.
13
¶ 34 Indeed, the trial court sustained Mr. Acierno’s counsel’s
objection to defense counsel’s improper remarks. It then
admonished defense counsel in front of the jury, twice, telling the
jury it was to “completely and utterly disregard” defense counsel’s
remarks because they were “inappropriate and d[id] not belong in
this type of a proceeding.” See Cook Inv. Co. v. Seven-Eleven Coffee
Shop, Inc., 841 P.2d 333, 335 (Colo. App. 1992) (trial court did not
abuse its discretion in denying a motion for a mistrial where “an
immediate curative instruction” was given).
¶ 35 We acknowledge that during the recess that followed defense
counsel’s closing argument, the trial court agreed that it was “not
sure” that its previous admonishment and instruction were
sufficient to cure the prejudice stemming from defense counsel’s
improper remarks. But after the recess, the trial court again
admonished defense counsel in front of the jury, and instructed the
jury that it was to disregard counsel’s statements. See id. And
there is nothing in the record that rebuts the presumption that the
jury followed the trial court’s instructions. See Qwest, 252 P.3d at
1088.
14
¶ 36 However, Mr. Acierno contends that the trial court’s curative
instructions were insufficient because they did not identify the
specific remarks that the jury was instructed to disregard. We are
not persuaded.
¶ 37 As Mr. Acierno’s counsel argued below, and has asserted in
this appeal, the jury reacted strongly to defense counsel’s improper
remarks and he made an immediate objection. Accordingly, we
cannot conclude that the jury would have been unable to identify
the improper comments the trial court instructed it to disregard.
¶ 38 Mr. Acierno also cites four out-of-state cases for the
proposition that defense counsel’s improper comments warranted a
mistrial. See Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla.
Dist. Ct. App. 1996); Boren v. BOC Grp., Inc., 895 N.E.2d 53 (Ill.
App. Ct. 2008); Lioce v. Cohen, 174 P.3d 970 (Nev. 2008); Boyle v.
Christensen, 251 P.3d 810 (Utah 2011). However, in each of those
cases, the attorneys’ improper remarks were much more pervasive
than defense counsel’s statements in this case. See, e.g., Lioce, 174
P.3d at 974-78 (defense counsel made the same improper closing
argument in four related cases, which he refined “over time”).
Moreover, in three out of four of those cases, no admonition or
15
curative instruction was given by the trial courts. See Norman, 668
So. 2d at 1021-224; Lioce, 174 P.3d at 974-78; Boyle, 251 P.3d at
813. And in Boren, the appellate court was reviewing a trial court’s
decision to grant a new trial, so that case is procedurally inapposite.
895 N.E.2d at 59-60. Accordingly, all four cases are
distinguishable; Mr. Acierno’s reliance on them is therefore
misplaced.
¶ 39 To be clear, we do not condone defense counsel’s misconduct.
In the end, however, as the trial court described it, this was “an
extremely close call.” Had we been in the trial court’s position, we
might have reached a different result. But that is not grounds for
reversing the trial court’s discretionary decision. To the contrary,
deference to the trial court’s decision is important because it was in
the best position to evaluate the prejudicial impact of defense
counsel’s misconduct in the context of the entire trial. See
Antolovich, 183 P.3d at 604.
4 In addition to the improper argument basis, the appellate court
also reversed based on “improper contact” during trial between an
agent of defendant’s insurer and his brother, who was the foreman
of the jury. Norman v. Gloria Farms, Inc., 668 So. 2d 1016, 1018-19
(Fla. Dist. Ct. App. 1996).
16
b. Motion for a New Trial
¶ 40 We have concluded that the trial court did not abuse its
discretion in denying Mr. Acierno’s motion for a mistrial based on
defense counsel’s (1) misstatement of the standard of care
instruction and (2) improper remarks to the jury. For the same
reasons, we conclude that the trial court did not abuse its
discretion in denying Mr. Acierno’s request for a new trial on those
grounds.
¶ 41 The remaining question, then, is whether the other alleged
irregularities, in addition to defense counsel’s misconduct, required
a new trial. For the following reasons, we conclude that they did
not.
¶ 42 First, Mr. Acierno contends that a new trial was required
because two witnesses gave testimony that differed from their
testimony in prior depositions. Mr. Acierno asserts that he
preserved this argument by (1) objecting to the changed testimony
and (2) filing a motion objecting to defendant’s request to meet ex
parte with one of Mr. Acierno’s treating physicians. We disagree.
Mr. Acierno’s counsel made no objection when he elicited the
alleged changed testimony from the two witnesses. And his earlier
17
motion objecting to the requested ex parte meeting would not have
alerted the trial court to his argument that one of these witnesses
had changed his testimony, purportedly as a result of the meeting.
¶ 43 Accordingly, the trial court did not err in denying Mr. Acierno’s
motion for a new trial on the basis of changed witness testimony
because that argument was not preserved by a contemporaneous
objection. See Mahan v. Capitol Hill Internal Med. P.C., 151 P.3d
685, 689 (Colo. App. 2006) (“Capitol Hill’s counsel did not object to
this statement at trial. Therefore, the objection was waived, and the
trial court’s denial of the motion for a new trial based on the
statement of counsel was not error.”), superseded by statute as
recognized in Carruthers v. Carrier Access Corp., 251 P.3d 1199
(Colo. App. 2010); see also Antolovich, 183 P.3d at 608 (the
plaintiffs did not “offer[] a contemporaneous objection to” alleged
“changed witness testimony”; “[a]ccordingly, their claims of surprise
and irregularity are waived, and we will not address them on
appeal”).
¶ 44 In any event, even if we assume that Mr. Acierno’s counsel
preserved this issue, as the trial court noted, changes in witnesses’
testimony “are not unusual,” Mr. Acierno’s counsel “impeached
18
[those] witnesses,” and it was “the jury’s role to determine
credibility.” In other words, even if we assume the witnesses
changed their testimony, such changed testimony did not constitute
an irregularity that was sufficiently prejudicial to warrant a new
trial. See First Nat’l Bank, 198 Colo. at 346, 599 P.2d at 916-17
(trial judges’ “presence and observation at . . . trial better equip[s]”
them for evaluating whether a party was “prevented from having a
fair trial”) (citations omitted).
¶ 45 Second, Mr. Acierno contends that a defense witness violated
the trial court’s sequestration order. But the trial court found that
the witness “stated credibly that he and his attorney were
discussing house remodeling and the weather” and that Mr. Acierno
did not “present additional evidence” in connection with his request
for a new trial. In our view, the trial court made a factual finding
that its sequestration order was not violated. Cf. People v.
Melendez, 102 P.3d 315, 319 (Colo. 2004) (“In proper
circumstances, the trial court may sequester witnesses, find that a
witness has violated the sequestration order, and impose sanctions
for the sequestration violation.”) (emphasis added). And Mr.
Acierno has not pointed to anything in the record establishing that
19
the court’s finding was clearly erroneous. See Legro v. Robinson,
2015 COA 183, ¶ 15 (the court of appeals will not disturb a trial
court’s finding of fact unless it is clearly erroneous). Accordingly,
the trial court did not err in denying Mr. Acierno’s motion for a new
trial.
¶ 46 Lastly, Mr. Acierno contends that a new trial was warranted
because a juror slept through important portions of trial. As with
the claims of changed testimony, however, Mr. Acierno raised this
issue for the first time in his motion for a new trial. Thus, the trial
court did not err in denying the motion on that basis. See Mahan,
151 P.3d at 689.
¶ 47 Nonetheless, we note that the trial court found that Mr.
Acierno failed to present sufficient evidence “to show that [the juror]
missed crucial parts of the trial.” And again, Mr. Acierno has not
cited anything in the record to show that the trial court’s finding
was clearly erroneous. See Legro, ¶ 15. Mr. Acierno’s background
section contains a subheading titled “A [j]uror sleeps through
critical portions of the evidence.” But in the statements of fact that
follow, Mr. Acierno fails to allege that the juror actually slept during
20
trial, let alone cite to portions of trial transcript supporting such an
assertion.
¶ 48 In sum, we conclude that, under the circumstances, the trial
court did not abuse its discretion in denying Mr. Acierno’s motion
for a new trial.5
B. Ex Parte Meeting
¶ 49 Mr. Acierno contends that the trial court erred when it allowed
defense counsel to meet ex parte with the radiologist who
interpreted Mr. Acierno’s MRI and MRA results. We are not
persuaded.
1. Standard of Review and Applicable Law
¶ 50 We review rulings on issues of pre-trial discovery for an abuse
of discretion. See Reutter v. Weber, 179 P.3d 977, 984 (Colo. 2007).
A trial court abuses its discretion if its ruling was manifestly
arbitrary, unreasonable, or unfair, “or based on an erroneous
understanding or application of the law.” Core-Mark, ¶ 28.
5To the extent Mr. Acierno contends, in his reply, that the trial
court’s decision to allow defense counsel to meet ex parte with Mr.
Acierno’s radiologist provided a basis for granting a new trial, we do
not address arguments raised for the first time in a reply brief. See
Rogers v. Forest City Stapleton, Inc., 2015 COA 167M, ¶ 38.
21
¶ 51 Under Colorado law, communications between patients and
their physicians are generally privileged. Reutter, 179 P.3d at 980.
However, the General Assembly has provided a statutory exception
to that general rule: the “privilege does not apply to a medical
provider ‘who was in consultation with a physician, surgeon, or
registered professional nurse being sued . . . on the case out of
which said suit arises.’” Id. at 981 (quoting § 13-90-107(1)(d)(II),
C.R.S. 2015) (emphasis in original).
¶ 52 Where the statutory exception to the patient-physician
privilege applies, a trial court may grant a party’s request to meet
with a treating physician ex parte. See id. at 980. By “permitting
informal communications between a defense attorney and a
plaintiff’s treating physician,” the discovery process is promoted “by
assuring that both parties have access to an informal, efficient, and
cost-effective method for discovering facts relevant to the
proceedings.” Samms v. Dist. Court, 908 P.2d 520, 526
(Colo. 1995).
¶ 53 Nevertheless, under some circumstances, trial courts should
take appropriate measures to protect against the disclosure of
residually privileged information, i.e., “medical information about
22
[the patient] that was unrelated to the course of treatment . . .
forming the basis of the malpractice action.” Reutter, 179 P.3d at
980. “Where the risk that residually privileged information will be
divulged during an interview is relatively high, the preferred method
of protecting against divulgement is to provide the plaintiff-patient
with prior notice and an opportunity to attend the interview.” Id. at
983. However, where a “trial court determines that the non-party
medical providers possess no residually privileged information, the
trial court does not abuse its discretion by refusing to require that
the plaintiff be permitted to attend the interviews.” Id. at 980.
2. Discussion
¶ 54 In his response objecting to Dr. Garyfallou’s motion to meet ex
parte with the radiologist, Mr. Acierno asserted that there was “a
significant risk of disclosure of [Mr. Acierno]’s residually privileged
health information.” Mr. Acierno did not, however, identify any
information that should have been protected against disclosure.
Accordingly, the trial court found that “the risk of [the witness]
divulging residually privileged information is not sufficiently high
enough to entitle [p]laintiff[] to attend the informal ex parte meeting
[d]efendants seek.” Even so, the trial court granted the motion with
23
the following condition: “Defendants’ informal questioning is
confined to matters that are not subject to physician-patient
privilege[.]”
¶ 55 On appeal, Mr. Acierno does not assert that residually
privileged information was divulged.
¶ 56 Accordingly, the trial court did not abuse its discretion in
allowing defense counsel to meet ex parte with Mr. Acierno’s
radiologist. See id. at 982 (a trial court may allow plaintiff’s counsel
to attend a defendant’s interviews “with non-party medical
providers where the risk is high that residually privileged
information will be divulged”) (emphasis added).
¶ 57 Nevertheless, Mr. Acierno argues that the trial court should
have placed additional limitations on the informal, ex parte meeting
to prevent defense counsel from unduly influencing the radiologist’s
testimony. We disagree.
¶ 58 Even if we assume that undue influence is a proper basis for
placing limitations on a party’s request to meet ex parte with a non-
party treating physician, Mr. Acierno has not cited anything in the
record evidencing such influence. Instead, Mr. Acierno would have
us infer undue influence from (1) the fact that the radiologist gave
24
testimony at trial that differed slightly from his testimony in a
deposition and (2) defense counsel’s misconduct in closing
argument.
¶ 59 With respect to the changed testimony, Mr. Acierno asserts
that he was “sandbagged” when the radiologist testified at trial that
he received a telephone call from Dr. Garyfallou while Mr. Acierno
was in the MRI machine exhibiting symptoms of a stroke or seizure.
The record does not support Mr. Acierno’s assertion because, as Dr.
Garyfallou points out, the radiologist’s trial testimony was generally
consistent with his testimony in the deposition: “I don’t remember a
lot of detail, but I remember that when we talked either during or
after the MRI, he — the patient was having some difficulty during
his MRI.” (Emphasis added.)
¶ 60 In any event, as the trial court noted in its denial of Mr.
Acierno’s motion for a new trial, to the extent there may have been
inconsistencies between the trial and deposition testimony, Mr.
Acierno was free to impeach the radiologist on that basis.
C. Pro Rata Liability
¶ 61 Mr. Acierno contends that the trial court erred in denying his
motion for a directed verdict on Dr. Garyfallou’s affirmative defense
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of pro rata liability. Specifically, he asserts that a directed verdict
should have been granted because defense counsel’s statement in
closing argument — that Dr. Garyfallou was “not blaming any of the
settling [d]efendants” — constituted a judicial admission
disclaiming pro rata liability. We disagree.
¶ 62 “A judicial admission is a formal, deliberate declaration which
a party or his attorney makes in a judicial proceeding for the
purpose of dispensing with proof of formal matters or of facts about
which there is no real dispute.” Kempter v. Hurd, 713 P.2d 1274,
1279 (Colo. 1986).
¶ 63 Although a party can make a judicial admission in closing
argument, there is no evidence in this case that defense counsel’s
statement was deliberate and made with the intent of “dispensing
with proof” on the issue of pro rata liability. See id. Indeed, it
would have made little sense to do so because pro rata liability was
an affirmative defense asserted by Dr. Garyfallou. Thus, read in
context, defense counsel’s statement was more likely intended to
rebut Mr. Acierno’s counsel’s statement in closing argument that
Dr. Garyfallou was blaming the other physicians who had
previously settled.
26
¶ 64 In any event, the jury concluded that Dr. Garyfallou did not
breach the applicable standard of care. Accordingly, any error with
respect to the trial court’s denial of Mr. Acierno’s motion for
directed verdict on pro rata liability was harmless because such an
error related only to apportionment of damages.6 See Leaf v.
Beihoffer, 2014 COA 117, ¶ 12 (“If a plaintiff fails to establish any
one of [the negligence] elements, any errors related to other
elements are necessarily harmless because the plaintiff cannot
prevail in any event.”).
6 Citing Paris v. Dance, 194 P.3d 404, 406-07 (Colo. App. 2008),
superseded by statute as stated in Reid v. Berkowitz, 2013 COA
110M, Mr. Acierno argues that the alleged error was not harmless.
In Paris, the jury concluded that (1) while the plaintiff had injuries;
(2) one set of defendants “was [not] at fault”; and (3) although the
other defendant “was negligent, it did not cause any of [the]
plaintiff’s injuries.” Id. at 406. Thus, because the jury did not fill
out the special verdict form apportioning damages, the Paris
division could not conclude that an error was harmless with respect
to the designation of the non-party. In this case, however, the jury
concluded that Dr. Garyfallou did not breach the applicable
standard of care, so any error with respect to apportionment of
damages — and evidence introduced in support thereof — was
harmless. See Leaf v. Beihoffer, 2014 COA 117, ¶ 12. Accordingly,
Mr. Acierno’s reliance on Paris is misplaced.
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D. Cumulative Error
¶ 65 Relying on the doctrine of cumulative error, Mr. Acierno
contends that we should reverse the judgment in favor of Dr.
Garyfallou and remand for a new trial.
¶ 66 The doctrine of cumulative error, although applied regularly in
criminal appeals, has not been extended to civil cases. See Neher v.
Neher, 2015 COA 103, ¶ 66. Like the Neher division, we decline to
apply it here because “[s]uch a significant expansion of
precedent . . . is more properly the province of our supreme court.”
Id.
¶ 67 Nevertheless, we have rejected each of Mr. Acierno’s
contentions of error. So even if we assume that the doctrine of
cumulative error should be extended to civil cases, it would not
provide a basis for reversal in this case.
III. Dr. Garyfallou’s Cross-Appeal
¶ 68 Dr. Garyfallou contends that the trial court erred when it
denied his motion seeking an award of costs against Mr. Acierno.
He argues that such an award was mandatory under section
13-16-105. We agree.
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A. Additional Background
¶ 69 Dr. Garyfallou moved for an award of $165,232.82 in costs.
He argued that he was entitled to recover his costs under section
13-16-105 because the jury had returned a verdict against Mr.
Acierno.
¶ 70 Mr. Acierno objected to Dr. Garyfallou’s motion. He contended
that (1) an award of costs would be unreasonable under the
circumstances because he was indigent and (2) the amount of costs
sought was unreasonable. Mr. Acierno’s legal guardians filed an
accompanying affidavit to support Mr. Acierno’s claim of indigence
and the unreasonableness of any award.
¶ 71 The trial court denied Dr. Garyfallou’s request for costs, noting
that (1) Mr. Acierno has “locked-in syndrome” meaning he will be
“reliant, 24/7, on caregivers for his daily needs”; (2) Mr. Acierno
“will never be able to earn an income”; and (3) any award of costs
would be against Mr. Acierno personally. The court also observed
that although Mr. Acierno had reached settlements with other
defendants, that money had been placed in a trust “to provide for
[p]laintiff’s medical needs and daily care,” and “[p]laintiff needs
every dollar of [the money in the trust] for his survival.”
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B. Standard of Review and Applicable Law
¶ 72 “Whether a statute mandates an award of costs or attorney
fees is a question of statutory interpretation and is thus a question
of law we review de novo.” Crandall v. City & Cty. of Denver, 238
P.3d 659, 661 (Colo. 2010).
¶ 73 Our goal in interpreting a statute is to ascertain and give effect
to the intent of the General Assembly. Id. To do so, we first look to
the plain language of the statute at issue, “giving words and
phrases their commonly accepted and understood meaning.” Id. at
662 (quoting Colo. Dep’t of Revenue v. Garner, 66 P.3d 106, 109
(Colo. 2003)). If the language is clear and unambiguous, our
analysis ends. But if the language is ambiguous, we resort to other
evidence and rules of statutory construction. Id.
C. Discussion
¶ 74 Section 13-16-105 provides:
If any person sues in any court of record in
this state in any action wherein the plaintiff or
demandant might have costs in case judgment
is given for him and he is nonprossed, suffers
a discontinuance, is nonsuited after
appearance of the defendant, or a verdict is
passed against him, then the defendant shall
have judgment to recover his costs against the
plaintiff, except against executors or
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administrators prosecuting in the right of their
testator or intestate, or demandant, to be
taxed; and the same shall be recovered of the
plaintiff or demandant, by like process as the
plaintiff or demandant might have had against
the defendant, in case judgment has been
given for the plaintiff or demandant.
(Emphasis added.)
¶ 75 Based on the plain language of section 13-16-105, we
conclude that an award of costs to a defendant is mandatory when
(1) the plaintiff would be entitled to costs if “judgment [had been]
given for him” and (2) judgment is entered in favor of the defendant.
¶ 76 First, section 13-16-105 states that a defendant “shall have
judgment to recover his costs.” (Emphasis added.) Ordinarily,
“[t]he word ‘shall’ connotes a mandatory requirement.” Willhite v.
Rodriguez-Cera, 2012 CO 29, ¶ 17. And nothing in section
13-16-105 provides a reason for departing from the usual
construction of the word “shall.” See Crandall, 238 P.3d at 663
(“The statutory language contains no words that suggest anything
other than a mandatory award.”); compare, e.g., § 13-16-105
(defendant “shall have judgment to recover his costs), with
§ 13-16-114, C.R.S. 2015 (“[I]n all other cases in equity not
31
otherwise directed by law, it is in the discretion of the court to
award costs or not.”).
¶ 77 Second, the supreme court and other divisions of this court
have construed similar statutory sections as mandating an award of
costs. Most recently, in Crandall, the supreme court considered
whether an award of costs is mandatory under section
13-16-113(2), C.R.S. 2015. 238 P.3d at 662-63. This section
provides that “[i]n all actions brought as a result of a death or an
injury to person or property occasioned by the tort of any other
person, where any such action is dismissed prior to trial under rule
12(b) of the Colorado rules of civil procedure, the defendant shall
have judgment for his costs.” § 13-16-113(2) (emphasis added).
Based on the plain language of the statute, the court concluded
that section 13-16-113(2) “unequivocally mandate[s] an award of
costs . . . to a defendant when it prevails on a pre-trial C.R.C.P.
12(b) motion to dismiss.” Crandall, 238 P.3d at 663.
¶ 78 Similarly, in National Canada Corp. v. Dikeou, 868 P.2d 1131,
1139 (Colo. App. 1993), the division concluded that section
13-16-104, C.R.S. 2015, mandates an award of costs to a plaintiff
when he or she recovers “debt or damages in an action.”
32
Significantly, section 13-16-104 contains language very similar to
the language in 13-16-105: “the plaintiff or demandant shall have
judgment to recover against the defendant his costs to be taxed.”
Compare § 13-16-104, with § 13-16-105. Moreover, section
13-16-104 is the counterpart to section 13-16-105 — the former
specifies when plaintiffs are entitled to recover costs whereas the
latter sets out the circumstances under which defendants are
entitled to costs.
¶ 79 Despite this mandatory language, Mr. Acierno argues that trial
courts have “virtually unlimited discretion with respect to whether
to award costs to a prevailing party.” In support, he cites to a
number of decisions from divisions of this court, including
Valentine v. Mountain States Mutual Casualty Co., 252 P.3d 1182,
1187 (Colo. App. 2011). Specifically, Mr. Acierno relies (as did the
trial court) on the Valentine division’s statement that “[a]bsent a
prohibition in a statute or rule, the district court has considerable
discretion in determining whether to award costs and what amount
to award.” Id.
¶ 80 Both Mr. Acierno’s and the trial court’s reliance on Valentine is
misplaced. The Valentine division’s statement — that trial courts
33
have “considerable discretion in determining whether to award
costs and what amount to award” — refers to a court’s discretion in
deciding whether or not to award a party’s request for a particular
cost in a particular amount. Id. Valentine and the other cases cited
by Mr. Acierno do not stand for the proposition that a trial court
has broad discretion, under section 13-16-105, to completely deny
a prevailing defendant’s request for costs.
¶ 81 Nonetheless, Mr. Acierno contends that a prior version of
C.R.C.P. 54(d) — the version that was in effect when the court
denied Dr. Garyfallou’s motion for costs — vested courts with
discretion to deny a prevailing defendant’s request for costs on the
basis of the plaintiff’s indigency.7 However, the prior version of
C.R.C.P. 54(d) provided that “[e]xcept when express provision
therefor is made . . . in a statute . . . costs shall be allowed as of
course to the prevailing party unless the court otherwise directs.”
(Emphasis added.) And, as we have concluded above, section
13-16-105 expressly mandates an award of costs to a prevailing
7The language Mr. Acierno relies on — “unless the court otherwise
directs” — was deleted from C.R.C.P. 54(d) by amendment in 2015.
However, the amended version of C.R.C.P. 54(d) did not take effect
until July 1, 2015, and the trial court ruled on Dr. Garyfallou’s
motion for costs in September 2014.
34
defendant. Accordingly, the discretionary language in C.R.C.P.
54(d) was inapplicable. See Nat’l Can. Corp., 868 P.2d at 1139
(“[B]ecause express provision is made in a statute, see § 13–16–104,
and since that statute requires that costs be assessed, C.R.C.P.
54(d) is inapplicable to the extent that it makes the awarding of
costs discretionary.”).
¶ 82 In this case, Mr. Acierno would have been entitled to costs had
he prevailed at trial. Thus, an award of costs to Dr. Garyfallou is
mandatory under section 13-16-105. We therefore remand this
case to the trial court to enter an award of costs to Dr. Garyfallou.
In determining an appropriate award, the trial court shall exercise
its considerable discretion in determining which costs to award and
what amounts are reasonable.
IV. Conclusion
¶ 83 The judgment is affirmed, the order denying costs is reversed,
and the case is remanded to the trial court with directions.
JUDGE WEBB and JUDGE J. JONES concur.
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