The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 8, 2018
2018COA14
No. 16CA1383, Danko v. Conyers — Torts — Professional
Liability — Medical Malpractice — Pro Rata Liability
In this medical negligence case, the division considers the
effect of the nonparty at fault statute, section 13-21-111.5, C.R.S.
2017, and Restatement (Second) of Torts section 457 (Am. Law Inst.
1965) (also called the original tortfeasor rule) on the admissibility of
evidence offered by the initial provider that negligence of later
providers caused the harm for which the patient sought damages
from the initial provider. Rather than designating later providers as
nonparties at fault, the initial provider sought to introduce evidence
of their negligence as a superseding cause. The division first holds
that the nonparty at fault statute does not preclude admission of
such evidence. However, the division further holds that the trial
court acted within its discretion in precluding the evidence because
the initial provider did not show that treatment by the later
providers, even if negligent, was extraordinary, as required by the
Restatement. Therefore, the judgment against the initial provider is
affirmed. The division also holds that jury consulting fees can be
recovered as costs under the settlement offer statute, section
13-17-202, C.R.S. 2017.
COLORADO COURT OF APPEALS 2018COA14
Court of Appeals No. 16CA1383
Boulder County District Court No. 14CV30542
Honorable Norma A. Sierra, Judge
Deborah Danko,
Plaintiff-Appellee and Cross-Appellant,
v.
David J. Conyers, M.D.,
Defendant-Appellant and Cross-Appellee.
JUDGMENT AFFIRMED, ORDER AFFIRMED IN PART,
REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE WEBB
Graham and Terry, JJ., concur
Announced February 8, 2018
Leventhal & Puga, P.C., Jim Leventhal, Erin C. Genullis, S. Paige Singleton,
Benjamin I. Sachs, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant
Jaudon & Avery LLP, David H. Yun, Denver, Colorado, for Defendant-Appellant
and Cross-Appellee
¶1 In a medical negligence case, should the initial provider be
allowed to present evidence that a later provider’s negligence caused
the injury for which the patient seeks to recover damages from the
initial provider? Does the answer depend on whether the initial
provider attempts to apportion fault or seeks complete exoneration
because, even if he or she was negligent, the later provider’s
negligence was a superseding cause of the patient’s injury?
¶2 David J. Conyers, M.D., who performed carpal tunnel surgery
on Deborah Danko, appeals the judgment entered on a jury verdict
in favor of Ms. Danko. According to Ms. Danko, Dr. Conyers
negligently failed to detect an infection resulting from the surgery,
which led to amputation of her forearm. Dr. Conyers challenges
rulings before and during trial excluding his expert testimony that
amputation of Ms. Danko’s forearm by another physician, four
months after she had been discharged from Dr. Conyers’ care, was
unnecessary. Dr. Conyers raised the other physician’s treatment
not as a basis to apportion fault, but as a superseding cause that
relieved him of any liability. He also challenges jury instructions
related to this issue.
1
¶3 Ms. Danko concedes preservation. She cross-appeals the trial
court’s refusal to award some costs that she incurred.
¶4 We conclude that because Dr. Conyers did not present
evidence that the amputation was extraordinary, the trial court
acted within its discretion in excluding evidence of the other
provider’s negligence. Rejecting Dr. Conyers’ other contentions, we
affirm the judgment. We reverse the cost award in part.
I. Background and Procedural History
¶5 Dr. Conyers, a hand surgeon, performed carpal tunnel release
surgery on Ms. Danko’s right wrist on May 3, 2012. During
post-operative care, he did not order a biopsy to detect possible
infection. In October 2012, he released her from further care,
believing that the wound was healing normally and was not
infected.
¶6 A month later, Ms. Danko sought a second opinion from Dr.
Frank Scott. Dr. Scott performed a minor procedure on Ms.
Danko’s wrist. Three weeks later, Dr. Scott was notified that
cultures taken during the procedure had grown out acid-fast bacilli.
Ms. Danko was diagnosed with a mycobacterium fortuitum (MBF)
infection.
2
¶7 On January 16, 2013, Ms. Danko saw Dr. Carla Savelli, an
infectious disease specialist. Dr. Savelli recommended long-term
dual therapy involving a regimen of several antibiotics and periodic
surgical debridement of infected tissue. Ms. Danko began taking
antibiotics.
¶8 Two weeks later, Ms. Danko consulted Dr. Bennie Lindeque,
an orthopedic surgeon. Dr. Lindeque recommended amputation of
Ms. Danko’s forearm “due to the severity and level of tendon and
nerve involvement.” He performed the amputation on February 11.
¶9 Ms. Danko sued Dr. Conyers, alleging that because he had
failed to diagnose her MBF infection, he was responsible for the
amputation. Her retained experts opined that had Dr. Conyers
ordered a biopsy in July or August, the MBF infection would have
been detected, dual therapy could have begun, and amputation
would not have been required.
¶ 10 Among other affirmative defenses in Dr. Conyers’ answer, he
raised nonparty at fault under section 13-21-111.5, C.R.S. 2017.
Dr. Conyers obtained an extension for designating nonparties.
Ultimately, he did not do so.
3
¶ 11 Before trial, Ms. Danko moved to strike the nonparty at fault
defense and to preclude evidence of other providers’ negligence or
fault. The trial court granted the motion. After citing Restatement
(Second) of Torts section 457 (Am. Law Inst. 1965) (hereinafter
Restatement), CRE 401, 402, and 403, the court explained:
In this Court’s opinion, it would result in
confusion to jurors were Dr. Conyers to be
permitted to muddle the waters by calling into
question the service rendered by subsequent
doctors, where under [section 457 of] the
Restatement of Torts, if the jury finds he was
negligent, legally he would be the sole cause of
Ms. Danko’s losses.
¶ 12 During trial, the court adhered to this ruling. Still, the court
allowed Dr. Conyers to present evidence as to the standard
treatment of antibiotics and debridement for MBF infections, that
Ms. Danko could have been treated this way even after she left Dr.
Conyers’ care, that she was improving under Dr. Savelli’s
treatment, that post-amputation photographs of the dissected limb
showed healthy nerves and tendons, and that Dr. Conyers’ care did
not cause the amputation.
¶ 13 In depositions and at trial, both Dr. Conyers and his principal
expert acknowledged that failing to diagnose and treat an MBF
4
infection earlier makes further medical treatment foreseeable. They
conceded that an undiagnosed and untreated MBF infection can
lead to amputation of the infected limb.
¶ 14 After Dr. Conyers rested, Ms. Danko moved for a directed
verdict on causation and requested a nonpattern instruction on the
original tortfeasor rule embodied in Restatement section 457. The
trial court denied the motion. Over defense objection, the court
gave the following nonpattern instruction:
The plaintiff, Deborah Danko, is entitled to
recover damages to the full extent of injuries
and losses suffered as a result of the
negligence, if any, of the defendant, Dr.
Conyers, even if the injuries and losses she
suffered may have been greater due to the
course of medical care and treatment she
received thereafter.
It also gave a standard instruction on causation.
¶ 15 The court rejected Dr. Conyers’ tendered instructions on
intervening cause. It also rejected a tendered instruction that Dr.
Conyers would be liable for any additional bodily harm (e.g.,
amputation caused by subsequent health care providers), “provided
that you also find that the additional bodily harm resulted from the
normal efforts of health care providers in rendering aid which the
5
plaintiff’s injury reasonably required, irrespective of whether such
acts were done in a proper or negligent manner.”
¶ 16 The jury found Dr. Conyers liable and awarded damages of
$1.5 million.
II. The Trial Court Erred by Relying on Section 13-21-111.5 to
Exclude Evidence That Other Providers Caused Ms. Danko’s
Injuries
¶ 17 The trial court held that “[b]y failing to designate the [other]
providers as nonparties at fault, Dr. Conyers lost the right to argue
that these providers caused Ms. Danko’s injuries.” It explained that
“[t]his ruling serves to exclude at trial any expert testimony
concerning the standard of care related to the [other] providers.”
¶ 18 The court based this part of its ruling on section
13-21-111.5(3)(b), which provides that the “[n]egligence or fault of a
nonparty may be considered . . . if the defending party gives notice
that a nonparty was wholly or partially at fault within ninety days
following commencement of the action . . . .” According to Ms.
Danko, we must affirm the trial court’s exclusion of evidence related
to other providers’ negligence or fault under this statute.
6
A. Standard of Review
¶ 19 Questions of law concerning the application and construction
of statutes are subject to de novo review. City & Cty. of Denver Sch.
Dist. No. 1 v. Denver Classroom Teachers Ass’n, 2017 CO 30, ¶ 32.
B. Analysis
¶ 20 Ms. Danko asserts that “Colorado law forbids the admission of
evidence of a non-party’s fault where that non-party was not
properly designated.” She relies on cases such as Thompson v.
Colorado & Eastern Railroad Co., 852 P.2d 1328, 1330 (Colo. App.
1993), where the division held that “a court may not allow the
finder of fact to consider the negligence or fault of a nonparty
unless such issue has properly been raised by the defendant in a
pleading which complies with the requirements of [section]
13-21-111.5(3).”
¶ 21 But the supreme court has held that “a defendant may always
attempt to interpose a complete defense that his acts or omissions
were not the cause of the plaintiff’s injuries.” Redden v. SCI Colo.
Funeral Servs., Inc., 38 P.3d 75, 81 (Colo. 2001). In other words,
“[a] defense that the defendant did not cause the plaintiff’s injuries
is not equivalent to the designation of a non-party because it cannot
7
result in apportionment of liability, but rather is a complete defense
if successful.” Id. (citing Staley v. Bridgestone/Firestone, Inc., 106
F.3d 1504, 1512 (10th Cir. 1997)); see Staley, 106 F.3d at 1512
(“[Defendant] can only be held liable if its conduct was a
contributing cause of the injury. It surely must be allowed to
defend itself by showing someone else’s action or inaction was the
sole cause of the injury. That is different from apportionment
between two parties both of whose fault contributed to the injury.”).
¶ 22 Dr. Conyers did not seek to apportion fault between him and
the other providers. Instead, he sought to admit evidence that their
care — not his — had caused Ms. Danko’s amputation. Under
Redden, such evidence is admissible even if a nonparty at fault has
not been designated under section 13-21-111.5. Thus, this portion
of the trial court’s rationale was incorrect.
¶ 23 Still, the trial court did not base its evidentiary ruling solely on
section 13-21-111.5. See URS Grp., Inc. v. Tetra Tech FW, Inc., 181
P.3d 380, 387 (Colo. App. 2008) (“[W]e must next consider whether
the judgment may nevertheless be affirmed on one of the alternative
grounds . . . .”); cf. Foxley v. Foxley, 939 P.2d 455, 458-59 (Colo.
App. 1996) (appellant must challenge all of the trial court’s
8
alternative bases for dismissal). So, we turn to whether excluding
evidence related to the negligence or fault of other providers was
proper under Restatement section 457, sometimes called the
original tortfeasor rule.
III. The Trial Court Did Not Abuse Its Discretion by Relying on
Restatement Section 457 to Exclude Evidence of Other Providers’
Fault
¶ 24 The trial court found the following under CRE 401 and CRE
402:
Even if Dr. Conyers can establish that [the]
other . . . providers were negligent — an
assumption made only for purposes of
considering [Dr. Conyers’ position] — the
Restatement of Torts [section 457] would hold
any injuries flowing from this subsequent care
as being causally related to the care provided
by Dr. Conyers. Accordingly, the necessity of
[the] decision to amputate the arm is irrelevant
if it resulted from any negligence on the part of
Dr. Conyers to not diagnose the infection.
A. Standard of Review
¶ 25 Dr. Conyers urges us to review this ruling de novo. He argues
that the trial court misinterpreted Restatement section 457 by
disregarding an exception to initial physician liability and thus
applied an incorrect legal standard, which raises a question of law.
See Bd. of Cty. Comm’rs v. DPG Farms, LLC, 2017 COA 83, ¶ 34
9
(“Whether the court misapplied the law in making evidentiary
rulings is reviewed de novo.”). And if the court applied an incorrect
legal standard, Dr. Conyers continues, the court abused its
discretion. Id. (“An abuse of discretion occurs where the trial
court’s ruling . . . was based on a misunderstanding or
misapplication of the law.”).
¶ 26 But this argument must be juxtaposed against a trial court’s
broad discretion to admit or exclude evidence. See Mullins v. Med.
Lien Mgmt., Inc., 2013 COA 134, ¶ 35. Thus, while we review the
court’s application of Restatement section 457 de novo, unless it
misunderstood this section, the decision to exclude the evidence
remains within the court’s discretion.
B. Analysis
¶ 27 Colorado has adopted the approach set forth in Restatement
section 457, which provides:
If the negligent actor is liable for another’s
bodily injury, he is also subject to liability for
any additional bodily harm resulting from
normal efforts of third persons in rendering aid
which the other’s injury reasonably requires,
irrespective of whether such acts are done in a
proper or a negligent manner.
10
(Emphasis added.) See Redden, 38 P.3d at 81 n.2 (“We recognize
that Colorado case law does not absolve tortfeasors of liability when
the plaintiff’s injuries result from medical treatment reasonably
sought and directly related to the actions of the original tortfeasor.”
(citing Restatement § 457)).
¶ 28 Under this approach,
[i]f the actor knows that his negligence may
result in harm sufficiently severe to require
such services, he should also recognize this as
a risk involved in the other’s forced submission
to such services, and having put the other in a
position to require them, the actor is
responsible for any additional injury resulting
from the other’s exposure to this risk.
Restatement § 457 cmt. b (emphasis added).
¶ 29 In successive medical malpractice cases, Restatement
section 457 applies when a later “physician’s treatment is directed
toward mitigating the harm inflicted by the first.” Basanti v.
Metcalf, Civ. A. No. 11-cv-02765-PAB-NYW, 2015 WL 868758, at
*27 n.50 (D. Colo. Feb. 26, 2015) (quoting Daly v. United States,
946 F.2d 1467, 1472 (9th Cir. 1991)). Under such circumstances,
the initial physician is responsible “for the negligent manner in
which a [subsequent] physician or surgeon treats the case or
11
diagnoses the injuries or performs an operation.” Restatement
§ 457 cmt. c; see Cramer v. Slater, 204 P.3d 508, 514 (Idaho 2009)
(Restatement section 457 “generally applies to any subsequent
medical negligence which is necessary to correct an original act of
medical negligence, thereby making acts of subsequent medical
negligence generally foreseeable.”).
¶ 30 Still, “[t]he relationship between the harm inflicted by the first
physician and the treatment initiated by the second is crucial to
holding the first physician liable for subsequent malpractice.” Daly,
946 F.2d at 1471. For example, the Daly court declined to apply
Restatement section 457 to the first physician where a patient
“sought treatment from a second physician for an underlying
ailment rather than for any harm inflicted by earlier treatment.” Id.
at 1472. Thus, under Restatement section 457, if the jury found
Dr. Conyers negligent in failing to diagnose the MBF infection, and
that the infection required further medical treatment, usually he
would be responsible for the negligent manner in which a later
provider treated the infection.
¶ 31 An exception exists, however, to the liability of initial
physicians — they are “not answerable for harm caused by
12
misconduct which is extraordinary . . . .” Restatement § 457 cmt d.
Simply put, such misconduct constitutes a superseding cause. See
Walcott v. Total Petroleum, Inc., 964 P.2d 609, 612 (Colo. App. 1998)
(“[W]hen it appears to the court in retrospect that it is highly
extraordinary that an intervening cause has come into operation,
the court may declare such a force to be a superseding cause.”
(citing Restatement § 435)).
¶ 32 So, the question becomes this: crediting the evidence cited in
Dr. Conyers’ opposition, did the trial court misunderstand
Restatement section 457 by failing to recognize that the amputation
could have constituted such extraordinary misconduct?
¶ 33 Although Dr. Conyers argued for the exception, the trial court
did not mention it. Instead, the court addressed only the role
played by other providers’ alleged negligence. For example, the
court explained that “[e]ven if [Dr. Conyers] is able to establish that
[other] providers were negligent in the services they rendered to Ms.
Danko, this would not absolve [Dr. Conyers] of ultimate liability for
[Ms. Danko’s] losses.” In saying this much, the court did not
misunderstand Restatement section 457.
13
¶ 34 We are unwilling to equate the court’s mere silence as to the
exception with so fundamental a misunderstanding as Dr. Conyers
asserts, especially in the face of his vigorous advocacy and citation
of authority discussing the exception. See People v. Harris, 633
P.2d 1095, 1098 (Colo. App. 1981) (“Where, as here, the objecting
party expressly raises the question of prejudice and the trial court
nevertheless admits the evidence, it cannot reasonably be assumed
that the court neglected to weigh that factor.”); cf. McGill v. DIA
Airport Parking, LLC, 2016 COA 165, ¶ 31 (“We acknowledge that it
would have been helpful for the court to address CRE 403 in its
written order. However, the fact that it did not do so does not
compel the conclusion that it failed to conduct such an analysis at
all.”). Instead, we conclude that the court discussed only
negligence because it had impliedly rejected Dr. Conyers’ evidence
to support the exception. See, e.g., Janicek v. Obsideo, LLC, 271
P.3d 1133, 1138 (Colo. App. 2011) (“While the trial court did not
explicitly reject homeowners’ contractual interpretation argument,
such a finding was implicit in the court’s ruling that homeowners
were not entitled to claim a homestead exemption.”).
14
¶ 35 So, having discerned no misunderstanding in the trial court’s
application of Restatement section 457, we take up the court’s
evidentiary discretion.
¶ 36 According to Dr. Conyers, the jury should have heard evidence
related to the fault of the other providers because the facts were
disputed as to whether their misconduct was extraordinary. He
primarily relies on deposition testimony of his limb preservation
expert, who testified that dual therapy cures ninety percent of
patients like Ms. Danko. The expert continued that he was
“shocked” by the amputation, which he said was “unnecessary”
after less than two weeks of dual therapy.
¶ 37 But despite Dr. Conyers’ assertion that the jury should have
heard evidence about whether the amputation fell within the
exception for extraordinary treatment, “[i]f the facts are undisputed,
the court is duty-bound to apply the rules to determine the
existence or extent of a negligent actor’s conduct.” Weems v.
Hy-Vee Food Stores, Inc., 526 N.W.2d 571, 574 (Iowa Ct. App.
1994). Put differently, does the record show a factual dispute
sufficient to have allowed evidence of the other providers’ fault? For
the following three reasons, we conclude that the trial court
15
properly rejected Dr. Conyers’ argument that whether the
amputation was extraordinary was disputed.
¶ 38 First, an “unnecessary” amputation does not equate to
extraordinary misconduct. Indeed, Restatement section 457 gives
the following example: “A’s negligence causes B serious harm. B is
taken to a hospital. The surgeon improperly diagnoses his case and
performs an unnecessary operation . . . . A’s negligence is a legal
cause of the additional harm which B sustains.” Restatement § 457
cmt. c, illus. 1 (emphasis added).
¶ 39 Second, although Dr. Conyers established that amputation
under Ms. Danko’s circumstances is rare, especially where dual
therapy has just begun, both Dr. Conyers and his expert conceded
amputation was a foreseeable risk of failure to diagnose — and
hence delay in treating — an MBF infection. See Redden, 38 P.3d
at 81 (“An intervening cause only relieves the defendant of liability if
it was not reasonably foreseeable.”). After all, the expert’s opinion
that ninety percent of patients are cured with dual therapy
recognizes that ten percent are not. Compare Weems, 526 N.W.2d
at 574 (The court rejected the argument that medical treatment that
resulted in a rare side effect was extraordinary, explaining, “[i]t is
16
immaterial in our analysis that the later injury in this case, spinal
meningitis, was a rare side effect of the medical treatment. The
important evidence was . . . that spinal meningitis was a known
risk of the procedure.”), with Corbett v. Weisband, 551 A.2d 1059,
1075 (Pa. Super. Ct. 1988) (Whether a physician’s misconduct was
extraordinary was a question for the jury where testimony showed
the conduct of the physician was “grossly negligent,” “border[ing] on
insanity,” and a thing that “no sane orthopedic surgeon would ever
do.”).
¶ 40 Third, Dr. Conyers did not present any expert testimony that
the amputation constituted extraordinary misconduct, much less
gross negligence. See Bremer v. Gonzalez, No. 2 CA-CV 2011-0064,
2011 WL 6886073, at *5 (Ariz. Ct. App. Dec. 29, 2011) (unpublished
opinion) (“Du-Brook contends, ‘this case involved unforeseeable and
extraordinary events,’ but identifies no extraordinarily negligent act
or omission by Gary’s treating physician. It merely notes Bremer
had alleged the physician fell below the applicable standard of care.
This is insufficient to support a finding of a superseding cause as a
matter of law.”). As in Bremer, Dr. Conyers’ experts only opined
that “substandard medical care” led to the amputation.
17
¶ 41 Under these circumstances, the trial court acted within its
discretion in excluding evidence of the other providers’ fault
because Dr. Conyers had not presented any evidence sufficient to
invoke the extraordinary misconduct exception.
¶ 42 Yet, perhaps recognizing that the question was close, the trial
court went further and provided another reason for excluding the
evidence. The order explained that even if admissible under CRE
401 and 402, the evidence should be excluded under CRE 403. We
address this reason next.
IV. The Trial Court Acted Within Its Discretion in Excluding
Evidence of Other Providers’ Fault Under CRE 403
¶ 43 The trial court gave two reasons for excluding any evidence
that other providers’ fault had caused Ms. Danko’s amputation
under CRE 403.
¶ 44 First, the court explained that allowing such evidence “would
result in confusion to jurors” if Dr. Conyers was “permitted to
muddle the waters by calling into question the service rendered by
subsequent doctors, where under the Restatement of Torts [section
457], if the jury finds he was negligent, legally he would be the sole
cause of Ms. Danko’s losses.”
18
¶ 45 Second, the court noted that “[Ms. Danko’s] counsel also
advised . . . as to his concerns that permitting [Dr. Conyers] to
present testimony questioning the decisions of [other] providers
would result in a ‘trial within a trial,’ potentially exceeding the
14-day period set forth for this proceeding.”
A. Standard of Review
¶ 46 A trial court has broad discretion to exclude relevant evidence
“if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay [or] waste of time . . . .” CRE 403;
see Alhilo v. Kliem, 2016 COA 142, ¶ 9.
B. Analysis
¶ 47 Restatement section 457 supports the trial court’s concern
over jury confusion. If the jury found Dr. Conyers negligent, then it
would have to decide whether the other providers’ alleged
“substandard care” rose to the level of extraordinary misconduct.
And herein lies the problem: what constitutes extraordinary
misconduct is not so easily defined. Compare Carmichael v. Beller,
914 P.2d 1051, 1058-59 (Okla. 1996) (Extraordinary medical
treatment is “something which may not have been within a normal
19
effort to render aid . . . for the injuries suffered.”), with Deutsch v.
Shein, 597 S.W.2d 141, 145 (Ky. 1980) (if a “divergence of medical
opinion” exists about the misconduct, it is not extraordinary),
abrogated on other grounds by Osborne v. Keeney, 399 S.W.3d 1
(Ky. 2012).
¶ 48 Restatement section 457 provides two illustrations of
extraordinary misconduct relieving the original tortfeasor of liability
for the subsequent misconduct:
A nurse, unable to bear the sight of the victim’s intense
suffering, disobeys the surgeon’s instructions and gives an
injection of morphine so excessive she knows it might be
lethal. Restatement § 457 cmt. d, illus. 4.
The victim takes advantage of a hospital stay to have an
unrelated procedure performed, e.g., the victim’s initial injury
is a broken leg, but examination reveals an unrelated hernia
for which surgery is negligently performed. Restatement
§ 457 cmt. e, illus. 6.
Neither of these scenarios would have been useful in instructing
the jury here.
20
¶ 49 Instead, the court would have had to draw finer lines than the
jury might have understood between inadmissible testimony that
the other providers’ treatment fell below the standard of care and
admissible testimony that their treatment fell so far below that
standard as to be extraordinary. Compare Williams v. Le, 662
S.E.2d 73, 77 (Va. 2008) (“In order to relieve [the physician] of
liability for his negligent act, the negligence intervening between the
[physician’s] negligent act and the injury must so entirely supersede
the operation of the [physician’s] negligence that it alone, without
any contributing negligence by the [physician] in the slightest
degree, causes the injury.” (quoting Atkinson v. Scheer, 508 S.E.2d
68, 71 (1988))), with Puckett v. Mt. Carmel Reg’l Med. Ctr., 228 P.3d
1048, 1069 (Kan. 2010) (“[W]hether the aspiration resulted from
negligence or not, it was a foreseeable consequence of the treatment
alleged to have been necessitated by [the medical providers’] alleged
negligence. Thus . . . this case is not one of extraordinary
circumstances . . . .”).
¶ 50 As well, allowing evidence of the other providers’ fault would
create a trial within a trial. Ms. Danko sought to blame Dr.
Conyers. If he, in turn, sought to blame the other providers, juror
21
confusion could result. See Hopey v. Spear, No. 13-CV-2220, 2016
WL 9665165, at *6 (C.D. Ill. June 23, 2016) (“Such questioning, if
not reasonably and carefully limited by the court, has the potential
to turn into a ‘trial within a trial,’ and prejudice and confuse the
jury as to what is the relevant, actual issue in this case . . . .”). In
other words, allowing evidence of the other providers’ fault could
have shifted the jury’s focus from Dr. Conyers’ care of Ms. Danko to
the other providers’ care. See Manuel v. City of Chicago, 335 F.3d
592, 597 (7th Cir. 2003) (“If that evidence had been admitted by the
district court, the parties would have no doubt argued over the
truthfulness of those allegations, necessarily shifting the focus of
the trial . . . .”).
¶ 51 Given all this, we conclude that the court acted within its
discretion in excluding this evidence, under both Restatement
section 457 and CRE 403.
V. Jury Instructions
¶ 52 Lastly, Dr. Conyers challenges the trial court’s jury
instructions related to the other providers’ fault. Specifically, the
court gave a midtrial instruction that the “necessity of Ms. Danko’s
amputation . . . is not a matter that you will be asked to deliberate
22
upon.” And at the end of the trial, the court gave Ms. Danko’s
tendered nonpattern instruction saying that she was entitled to
damages for the full extent of injuries, “even if the injuries and
losses she suffered may have been greater due to the course of
medical care and treatment she received thereafter.”
¶ 53 Dr. Conyers also challenges the trial court’s rejection of his
jury instruction on Restatement section 457 and his intervening
cause instruction.
A. Standard of Review
¶ 54 We review jury instructions de novo to determine whether the
instructions as a whole accurately informed the jury of the
governing law. Nibert v. Geico Cas. Co., 2017 COA 23, ¶ 8. If they
did, we review the trial court’s decision to give or reject a particular
jury instruction for an abuse of discretion. Id.
B. Analysis
¶ 55 Dr. Conyers argues that the instructions given by the trial
court misstated the law and instead emphasized Ms. Danko’s
theory of causation. These arguments fall short.
¶ 56 As to the midtrial instruction, Dr. Conyers’ liability for
damages resulting from the amputation did not depend on whether
23
it was necessary. See Carter v. Shirley, 488 N.E.2d 16, 20 (Mass.
App. Ct. 1986) (“We see no reason why the rule should not apply to
physicians whose original negligence causes the intervention of a
second physician who either improperly diagnoses the case and
performs an unnecessary operation or makes a proper diagnosis
and performs a necessary operation negligently.”); see also
Restatement § 457 cmt. c. Thus, telling the jury it would not
deliberate on the necessity of the amputation was within the court’s
discretion.
¶ 57 As to the nonpattern jury instruction, recall that the trial court
excluded evidence of the other providers’ fault. For this reason, the
instruction accurately described Dr. Conyers’ liability under
Restatement section 457, if the jury found that he had caused Ms.
Danko’s injury by having failed to diagnose and treat the MBF
infection.
¶ 58 Still persisting, Dr. Conyers argues that the nonpattern
instruction should have told the jury that the amputation must
have resulted “from the normal efforts of third persons in rendering
aid which the other’s injury reasonably requires.” To be sure, this
language appears in Restatement section 457 and it was accurately
24
quoted in Dr. Conyers’ tendered instruction. But his argument
misapprehends both “normal” and “reasonably requires.”
¶ 59 Restatement section 457 neither defines “normal” nor offers an
illustrative example. However, comment b to Restatement
section 443 explains as follows:
The word “normal” is not used in this Section
in the sense of what is usual, customary,
foreseeable, or to be expected. It denotes
rather the antithesis of abnormal, of
extraordinary. It means that the court or jury,
looking at the matter after the event, and
therefore knowing the situation which existed
when the new force intervened, does not
regard its intervention as so extraordinary as
to fall outside of the class of normal events.
When a negligently driven automobile hits a
cow, it is scarcely to be regarded as usual,
customary, or foreseeable in the ordinary
sense in which that word is used in negligence
cases, that the cow, after lying stunned in the
highway for five minutes, will recover, take
fright, and make a frantic effort to escape, and
that in the course of that effort it will charge
into a bystander, knock him down, and injure
him. But in retrospect, after the event, this is
not at all an abnormal consequence of the
situation which the driver has created. It is to
be classified as normal, and it will not operate
as a superseding cause which relieves the
driver of liability.
Viewed through this lens, “normal” remains subject to the prior
analysis of “extraordinary.”
25
¶ 60 Nor must the amputation have been “reasonably required.”
See Whitaker v. Kruse, 495 N.E.2d 223, 225-26 (Ind. Ct. App. 1986)
(“The rationale for permitting recovery under this rule is that the
tort-feasor created the necessity for medical care in the first
instance. So long as the individual seeking medical care makes a
reasonable choice of physicians, he is entitled to recover for all
damages resulting from any aggravation of his original injury
caused by a physician’s misdiagnosis or mistreatment.”); Rine v.
Irisari, 420 S.E.2d 541, 545 (W. Va. 1992) (“[T]he aggravation
caused by the negligent or unskillful treatment by a physician of
the original injury would not have occurred if there had been no
original injury.” (quoting Makarenko v. Scott, 55 S.E.2d 88, 93-94
(W. Va. 1949))).
¶ 61 Instead, the phrase “reasonably required” refers to whether
Ms. Danko was reasonable in seeking medical treatment for the
MBF infection and whether that treatment related to an injury
caused by Dr. Conyers. See Redden, 38 P.3d at 81 n.2; Madrid v.
Safeway Stores, Inc., 709 P.2d 950, 951 (Colo. App. 1985)
(“Although Madrid’s experts testified that the initial surgery was
reasonably required, and was necessitated as a result of the injury
26
to her toe sustained in the fall, the evidence on this issue was in
conflict. Safeway produced testimony by four medical doctors that
the original injury was minor and did not require surgery.”).
¶ 62 The evidence was undisputed that Ms. Danko reasonably
sought medical treatment related to the MBF infection. Dr. Conyers
did not argue that further treatment was unnecessary — only that
he did not cause the MBF infection needing treatment. On this
basis, the issue faced by the jury was whether Dr. Conyers caused
Ms. Danko to seek treatment because he was negligent in neither
diagnosing nor treating the MBF infection. See Rine, 420 S.E.2d at
544 (“Many courts have recognized the rule that, in cases of
successive malpractice, the original medical tortfeasor is liable for
subsequent negligent medical treatment which is undertaken to
mitigate the harm caused by the original medical tortfeasor.”). Dr.
Conyers’ tendered instruction misstated this principle.
¶ 63 Turning to the intervening cause instruction requested by Dr.
Conyers, we conclude that the trial court properly rejected it as
well. First, as discussed in Part III above, the court acted within its
discretion in holding that Dr. Conyers’ opposition and his midtrial
proffer did not include evidence creating a dispute whether the
27
amputation resulted from extraordinary misconduct. Second,
treatment by subsequent providers that merely falls below the
standard of care does not constitute superseding cause. See
Weems, 526 N.W.2d at 574 (“[T]he trial court correctly rejected [the
defendant’s] requested jury instruction on superseding cause”
where “[t]he undisputed evidence revealed that medical treatment
rendered to Weems was not an extraordinary or unforeseeable
act.”).
¶ 64 In sum, we conclude that the jury was properly instructed.
VI. Ms. Danko’s Cross-Appeal
¶ 65 On cross-appeal, Ms. Danko challenges the trial court’s denial
of costs totaling $47,530.75. Dr. Conyers does not dispute
preservation. We affirm in part and reverse in part.
A. Additional Background
¶ 66 On October 21, 2015, Ms. Danko made a settlement offer
under section 13-17-202(1)(a)(I), C.R.S. 2017. Dr. Conyers did not
accept the offer. The verdict exceeded the amount of the offer.
¶ 67 The trial court reduced the recoverable costs below amounts
paid by Ms. Danko in four areas. As to Dr. Lindeque, who testified
for Ms. Danko as a nonretained treating physician — although Ms.
28
Danko had initially endorsed him as a retained expert — the court
reduced costs from $45,000 to $15,000. The court reduced the
costs for ReEntry Rehabilitation Services, which prepared a post-
amputation life care plan, from $15,434.60 to $10,280.73. It
disallowed entirely Ms. Danko’s claim for court reporter fees and
transcript costs totaling $2125.75, all of which involved depositions
of her treating physicians taken by Dr. Conyers. The court also
disallowed $7944.14 claimed for a jury consultant and related
travel expenses.
B. Standard of Review and Law
¶ 68 Awarding costs is within the discretion of the trial court, and
the court’s findings as to the reasonableness and amount of costs
will be disturbed on appeal only for an abuse of discretion. Archer
v. Farmer Bros. Co., 90 P.3d 228, 230 (Colo. 2004). A trial court
abuses its discretion when it acts in a manifestly arbitrary, unfair,
or unreasonable manner. Id.
¶ 69 According to section 13-17-202(1)(a)(I),
[i]f the plaintiff serves an offer of settlement in
writing at any time more than fourteen days
before the commencement of the trial that is
rejected by the defendant, and the plaintiff
recovers a final judgment in excess of the
29
amount offered, then the plaintiff shall be
awarded actual costs accruing after the offer of
settlement to be paid by the defendant.
¶ 70 However, merely by making a statutory settlement offer, a
party cannot “compel a trial court to award actual costs no matter
how unreasonable or unnecessary such expenses may have been.
This would lead to the untenable result that a trial court awards
costs for expenses which never should have been incurred.” Scholz
v. Metro. Pathologists, P.C., 851 P.2d 901, 910 (Colo. 1993). Rather,
in considering whether to award such costs,
[t]he trial court has no discretion to deny an
award of actual costs under this statute, so
long as it determines that those costs are
reasonable. Nonetheless, the trial court holds
discretion over the amount of costs to be
awarded and may disallow certain requested
costs as unreasonable so long as the court
includes in the record its reasons for doing so.
Bennett v. Hickman, 992 P.2d 670, 673 (Colo. App. 1999),
superseded by statute on other grounds, Ch. 5, sec. 1, § 13-17-202,
2008 Colo. Sess. Laws 8, as recognized in Miller v. Hancock, 2017
COA 141.
¶ 71 The proper exercise of this discretion requires the trial court to
answer two questions:
30
1. Were the expert’s services reasonably
necessary to the party’s case?
2. Did the party expend a reasonable amount
for the expert’s services?
Clayton v. Snow, 131 P.3d 1202, 1203 (Colo. App. 2006) (citations
omitted). The answers to these questions may lead to reduction in
the amount of costs awarded. See, e.g., Underwood v. Dillon Cos.,
936 P.2d 612, 616 (Colo. App. 1997) (“On cross-appeal, King
Soopers claims that the trial court abused its discretion in awarding
only half of its requested amount of expert witness fees. We
disagree.”).
¶ 72 “A trial court’s award of costs must be supported by findings
that, considered together with the record, are sufficient to permit a
reviewing court to determine the basis for the award.” Miller, ¶ 46.
Specifically, the findings “must include an explanation of whether
and which costs are deemed reasonable.” Id.
C. Application
¶ 73 Dr. Conyers argues that the trial court properly exercised its
discretion because Ms. Danko incurred some of the reduced costs
before the statutory settlement offer. This argument falls short
because the court made no findings on timing. Instead, it
31
articulated other reasons for reducing the costs claimed, which we
address.
1. Dr. Lindeque
¶ 74 The trial court found:
The invoices submitted by Dr. Lindeque do not
differentiate between the time he spent in an
expert capacity versus that spent as a treating
physician. In researching medical literature,
Dr. Lindeque billed 69.5 hours. At trial, the
Court was struck by Dr. Lindeque’s testimony
about the time spent preparing for trial relative
to the period of time he spent treating Ms.
Danko. His time treating Ms. Danko was very
limited, especially when considering the
significance of the procedure [he] performed.
By contrast, the time he spent preparing for
trial exceeded his time with Ms. Danko by
more than tenfold. The Court finds that
awarding $15,000 for Dr. Lindeque’s
preparation and participation at trial is
reasonable under the circumstances of this
case.
Ms. Danko does not assert that these findings lack record support.
And the findings explain why the court reduced these costs.
¶ 75 Undaunted, Ms. Danko argues that the court should have
allowed the entire $45,000 charge because Dr. Lindeque testified
“in good faith,” he “professionally and diligently performed” his
32
underlying work, and the court did not find his $500 hourly rate
unreasonable. This argument misses the mark in two ways.
¶ 76 First, Ms. Danko reduces the initial Clayton question — “Were
the expert’s services reasonably necessary to the party’s case?” — to
a binary choice. But doing so would deprive trial courts of
discretion to determine that some, but not all, of an expert’s
services were reasonably necessary. See Underwood, 936 P.2d at
616.
¶ 77 Second, at trial Dr. Lindeque did not testify for Ms. Danko as a
retained expert. And as discussed above, the court precluded all
evidence that the amputation was unnecessary. Given these
limitations, the court concluded that his charges were excessive,
without impugning Dr. Lindeque’s good faith, questioning his
professionalism, or commenting on his credibility. Cf. In re
Marriage of Elmer, 936 P.2d 617 (Colo. App. 1997) (finding half of
fee reasonable in light of charges that trial testimony by expert
witness was duplicative and $14,470 in requested costs was
excessive).
¶ 78 On this basis, we discern no abuse of discretion.
33
2. ReEntry Rehabilitation
¶ 79 The trial court found:
Plaintiff seeks $15,434.60 for ReEntry
Rehabilitation Services. Helen Woodard
assessed Ms. Danko’s vocational
rehabilitation. The report completed, and for
which billing is included, also includes review
of depositions and review of medical records,
which are believed to have little relevance to
the development of a post-amputation Life
Care Plan. This information is then
summarized in 12 pages of a 37-page report.
The Court finds that approximately two-thirds
of the amount requested for Ms. Woodard, or
$10,280.73, is reasonable to award as costs.
The $400 cost for setting up the file is
regarded as necessary and reasonable.
Again, Ms. Danko does not assert that these findings lack record
support.
¶ 80 Instead, she argues that when the trial court concluded
approximately one third of the report had “little relevance” to the
care plan, the court made an improper credibility determination.
But the court did not mention credibility. Nor does Ms. Danko
explain why the deposition and record review were reasonable and
necessary to develop the life care plan.
¶ 81 Of course, the court’s one-third reduction of the costs claimed
was an approximation based on the portion of the report the court
34
questioned. But “[t]he trial court’s goal when awarding attorney
fees and costs ‘is to do rough justice, not to achieve auditing
perfection.’” Estate of Casper v. Guarantee Tr. Life Ins. Co., 2016
COA 167, ¶ 70 (citation omitted) (cert. granted June 26, 2017).
¶ 82 For these reasons, we cannot say the trial court abused its
discretion in reducing the ReEntry Rehabilitation costs.
3. Court Reporter Fees and Transcripts
¶ 83 The trial court found:
An objection is also presented for the
deposition fees totaling $2,125.75 for a
number of Plaintiff’s treating physicians, as
these were taken when Plaintiff objected to
informal discovery by Defendant. The Court
agrees that Plaintiff could have cooperated
with Defendant’s approach on this point, and
this amount of $2,125.75 is disallowed from
Plaintiff’s bill of costs.
Here, too, Ms. Danko does not assert that these findings lack record
support.
¶ 84 Rather, she asserts that “[r]egardless of the precipitating
factors for Defendant’s decision to take depositions of Plaintiff’s
treating physicians,” the record does not show that the related
“transcription and reporter fees actually expended were
unreasonable.” But this assertion begs the question of whether, as
35
the court found, Ms. Danko could have avoided these costs. After
all, to recover deposition costs, a party must show “the taking of the
deposition and its general content were reasonably necessary.”
Cherry Creek Sch. Dist. No. 5 v. Voelker, 859 P.2d 805, 813 (Colo.
1993).
¶ 85 Thus, the findings support the discretionary decision to
disallow these costs.
4. Jury Consulting
¶ 86 The trial court found:
Defendant objects to an expense of $6,474.57
for a jury consultant, plus travel expenses of
$1,469.57 for travel on short notice. The
Court agrees with Defendant that these two
expenses are unnecessary to Plaintiff’s counsel
[sic] presentation of the case to a jury, and are
disallowed.
Unlike the three other findings discussed, this finding does not
involve any factual questions resolvable by record examination.
¶ 87 The parties have not cited, nor have we found, Colorado
authority addressing jury consulting expenses as recoverable costs.
Dr. Conyers cites several unpublished decisions from the United
States District Court for the District of Colorado. Ms. Danko
responds that federal law defines recoverable costs more narrowly
36
than does Colorado law, citing Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 441-42 (1987). She is correct.
¶ 88 Although section 13-17-202(1)(b) does not mention jury
consulting expenses, use of “including” in the statute “means that
the items of ‘actual costs’ listed are illustrative rather than
exhaustive.” Catlin v. Tormey Bewley Corp., 219 P.3d 407, 416
(Colo. App. 2009).
¶ 89 On the one hand, authority in other states is sparse. Citing
federal precedent, one state has held that such expenses are not
recoverable as costs. Delmonico v. Crespo, 127 So. 3d 576, 579
(Fla. Dist. Ct. App. 2012) (“We agree with other jurisdictions which
have held that costs and fees associated with jury consultants are
not recoverable.”); see also City of Shreveport v. Chanse Gas Corp.,
794 So. 2d 962, 979 (La. Ct. App. 2001) (“Here, the District Court
viewed the mock trial and jury consultant as overhead items which
cannot be reimbursed. Given that these exercises were strictly to
aid the attorneys and yielded only marginal results, we cannot say
the District Court abused its great discretion in denying these items
as costs.”).
37
¶ 90 On the other hand, we recognize that “[r]ising costs of
increasingly specialized lawyers, the need to deploy expensive
experts, jury consultants, and all the associated expenses have
priced some parties out of the market.” Marc Galanter, The
Vanishing Trial: An Examination of Trials and Related Matters in
Federal and State Courts, 1 J. Empirical Legal Stud. 459, 517
(2004) (footnote omitted), cited with approval in State ex rel. Crown
Power & Equip. Co. v. Ravens, 309 S.W.3d 798, 804 (Mo. 2009).
¶ 91 Balancing this limited authority against the concern over
rising litigation expenses leads to considering the policy underlying
our settlement offer statute. “The intent of section 13-17-202 is to
encourage settlements by imposing costs upon a rejecting party in
the event the final result is less favorable to that party than the
offer.” Hall v. Frankel, 190 P.3d 852, 866 (Colo. App. 2008). In
other words, “[t]he purpose of section 13-17-202 is to encourage the
settlement of litigation by increasing the cost of proceeding with a
lawsuit after the opposing party has made a reasonable settlement
offer.” Lawry v. Palm, 192 P.3d 550, 565 (Colo. App. 2008).
¶ 92 These statements of purpose and intent tip the scales in favor
of recovery of jury consulting expenses by a party who made a
38
statutory settlement offer, which was rejected, and did better than
the offer at trial.
¶ 93 Nor would allowing Ms. Danko to recover the jury consulting
expenses contravene the trial court’s discretion over
reasonableness. Recall, the court did not find these expenses
unreasonable, in whole or in part. Rather, the court found them
“unnecessary to Plaintiff’s counsel [sic] presentation of the case to a
jury.”
¶ 94 But the statute does not impose a necessity requirement on
recovery of “actual costs accruing after the offer.” And while
reasonableness has been implied as a precondition to recovery,
reasonableness is a lower standard than necessity. Thus, the
court’s finding of “unnecessary” does not support disallowing this
cost.
¶ 95 In sum, the trial court’s cost award is reversed as to the
$7944.14 jury consulting and related travel expenses. In all other
respects, the award is affirmed.
39
VII. Conclusion
¶ 96 The judgment is affirmed. The trial court’s cost award is
affirmed in part and reversed in part. On remand, the trial court
shall increase the costs awarded to Ms. Danko by $7944.14.
JUDGE GRAHAM and JUDGE TERRY concur.
40