Acierno Ex Rel. Acierno v. Garyfallou
409 P.3d 464
Colo. Ct. App.2016Background
- In 2010 Martin Acierno presented to an ER with transient neurological symptoms; Dr. Garyfallou ordered CT then MRI/MRA; Mr. Acierno later transferred and diagnosed with a brainstem stroke that left him quadriplegic and with locked-in syndrome.
- Acierno sued multiple providers for medical malpractice; all defendants except Dr. Garyfallou settled; jury trial against Dr. Garyfallou resulted in a defense verdict (no negligence).
- Acierno moved for a mistrial and for a new trial, alleging (1) defense counsel’s improper closing remarks and misstatement of the standard-of-care jury instruction, (2) changed witness testimony, (3) a sequestration violation, and (4) a sleeping juror; the trial court denied both motions.
- Acierno also objected to defense counsel’s ex parte meeting with the radiologist; the trial court permitted the interview with a limitation that questioning not invade physician-patient privileged matters.
- Dr. Garyfallou moved for an award of costs under Colo. Rev. Stat. § 13-16-105 after prevailing; the trial court denied costs based on Acierno’s indigence and need for settlement funds; the court of appeals reversed that denial and remanded for entry of costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Motion for mistrial/new trial based on defense counsel’s closing remarks and misstatement of the standard-of-care instruction | Remarks and misstatement were prejudicial and incurable; warranted mistrial/new trial | Trial court admonitions and jury instructions cured any prejudice; alternative remedies available | Denied — no abuse of discretion; curative instructions, rebuttal, and jury instructions made mistrial unnecessary |
| 2) Challenge to ex parte meeting with radiologist | Meeting risked disclosure of residually privileged info and undue influence; plaintiff should attend interview | Statutory exception allows interviews when provider consulted in plaintiff’s care; court may limit scope | Denied — trial court did not abuse discretion; no showing residually privileged information was likely or disclosed; condition imposed limiting inquiry |
| 3) Directed verdict on pro rata liability (judicial admission) | Defense counsel’s closing statement disavowing blame for settling defendants was a judicial admission eliminating pro rata defense | Statement was not a deliberate judicial admission; context shows rebuttal, not waiver of defense | Denied — no deliberate judicial admission; harmless in any event because jury found no negligence by Dr. Garyfallou |
| 4) Award of costs under § 13-16-105 (cross-appeal) | (Acierno) Indigence and need for settlement trust make costs unreasonable; trial court may deny costs | (Garyfallou) Statute mandates an award to prevailing defendant when plaintiff would have been entitled to costs if judgment had been for him | Reversed — § 13-16-105 mandatorily awards costs to prevailing defendant; remanded to quantify reasonable taxable costs (trial court retains discretion over which costs and amounts) |
Key Cases Cited
- Wark v. McClellan, 68 P.3d 574 (Colo. App. 2003) (mistrial is drastic remedy; prejudice must be incurable)
- Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582 (Colo. App. 2007) (trial court best positioned to assess counsel misconduct and prejudice)
- Qwest Servs. Corp. v. Blood, 252 P.3d 1071 (Colo. 2011) (presumption that jurors follow instructions)
- Crandall v. City & Cty. of Denver, 238 P.3d 659 (Colo. 2010) (statutory "shall" language mandates costs under analogous statute)
- National Can. Corp. v. Dikeou, 868 P.2d 1131 (Colo. App. 1993) (statute requiring costs to prevailing party construed as mandatory)