2018 CO 80
Colo.2018Background
- Plaintiff Alexander Clark sued the Estate of Dr. Daniel Brookoff for medical malpractice and for lack of informed consent after alleged ketamine-related injuries.
- Clark intended to introduce testimony about oral statements Dr. Brookoff made to him and his mother before/during treatment.
- The Estate moved to exclude that testimony under Colorado’s Dead Man’s Statute, § 13-90-102, which bars certain self‑serving testimony about statements by persons incapable of testifying (including decedents).
- The trial court excluded the testimony; Clark abandoned his informed-consent claim and judgment was entered for the Estate.
- The Colorado Court of Appeals reversed, relying on pre‑amendment case law (In re Estate of Crenshaw) and an "insurance exception"—finding the statute inapplicable because liability would be covered by insurance and would not diminish the estate.
- The Colorado Supreme Court granted certiorari to decide whether the Dead Man’s Statute now applies in “any civil action” and whether insurance coverage affects its applicability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 13‑90‑102 (Dead Man’s Statute) applies only when a judgment can increase or diminish a decedent’s estate | Clark: statute should be limited to cases affecting an estate; pre‑amendment precedent controls | Estate: statute’s current text applies broadly to "any civil action" after 2002/2013 amendments | Court: statute is plain and now applies in all civil actions; prior estate‑limited rule was removed by the legislature |
| Whether availability of insurance negates the statute’s application ("insurance exception") | Clark: insurance means no real harm to estate so the statute shouldn’t apply | Estate: insurance does not alter statutory scope; coverage is irrelevant to admissibility rules | Court: insurance is not a factor; no "insurance exception" exists in the statute |
| Proper interpretive approach when a statute has been amended to remove limiting language | Clark: rely on historical purpose and precedents interpreting earlier versions | Estate: follow plain language of current statute and presume amendments changed the law | Court: apply plain meaning; presume legislature intended the change and do not reinsert deleted limitations |
| Whether trial exclusion of oral statement testimony was erroneous under current statute | Clark: exclusion was erroneous because statute shouldn’t apply | Estate: exclusion proper under the statute as amended | Court: exclusion was proper under the Dead Man’s Statute as applicable to any civil action; appellate decision reversed |
Key Cases Cited
- Aetna Cas. & Surety Co. v. McMichael, 906 P.2d 92 (Colo. 1995) (statutory interpretation principles; apply plain and ordinary meaning)
- Vallagio at Inverness Residential Condo. Ass'n, Inc. v. Metro. Homes, Inc., 395 P.3d 788 (Colo. 2017) (de novo review of statutory interpretation; apply plain language)
- Breeden v. Stone, 992 P.2d 1167 (Colo. 2000) (purpose of Dead Man’s Statute: guard against perjury by interested living witnesses)
- Wise v. Hillman, 625 P.2d 364 (Colo. 1981) (Dead Man’s Statute promotes equal justice by excluding potentially unreliable evidence)
- In re Estate of Crenshaw, 100 P.3d 568 (Colo. App. 2004) (interpreted pre‑amendment statute as limited to matters affecting estates)
- Packard v. Packard, 519 P.2d 1221 (Colo. App. 1974) (courts may not reinsert language stricken by the legislature)
- Glover v. Innis, 252 P.3d 1204 (Colo. App. 2011) (background on transition from common‑law witness bars to statutory Dead Man’s rule)