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

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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.

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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.

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¶ 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

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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

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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.”

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¶ 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.

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¶ 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.

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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

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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.

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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.

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 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.

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¶ 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.

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¶ 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

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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).

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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

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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

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[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

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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.

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¶ 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

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[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.

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¶ 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

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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.”

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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

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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.

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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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