Bowman v. Songer

• Decision Date: 25 November 1991
• Docket Number: No. 90SC643,90SC643
• Citation: 820 P.2d 1110
• Parties: William J. BOWMAN, Petitioner, v. Donald F. SONGER, Jr., Respondent.
• Court: Colorado Supreme Court

Page 1110

820 P.2d 1110

19 A.L.R.5th 1032

William J. BOWMAN, Petitioner, v. Donald F. SONGER, Jr., Respondent.

No. 90SC643.

Supreme Court of Colorado En Banc.

Nov. 25, 1991.

Paul D. Cooper, Barbara H. Glogiewicz, Cooper & Kelley, P.C., Denver, for petitioner.

Joseph M. Epstein, Epstein & Lawrence, P.C., and Susan Graham Barnes, McKenna & Cuneo, Denver, for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to review Songer v. Bowman, 804 P.2d 261 (Colo.App.1990). The issues before us are: 1) whether there is a time limitation under C.R.C.P. 59 for filing a motion to reconsider the trial court's order granting a new trial and 2) whether the court of appeals erred by creating a claim for a doctor's failure to warn of the risks involved in using a certain medicine. For the reasons stated below, we affirm the court of appeals' decision. First, C.R.C.P. 59 does not apply to a motion to reconsider an order granting new trial because such an order is not a final order. Second, no new claim for relief was created by the court of appeals. It simply upheld the admission of evidence of a physician's failure to warn a patient of substantial risks of a medicine because it was relevant to the standard of care under a negligence claim.

I.

In 1983, Donald F. Songer, Jr. sought treatment from Dr. William J. Bowman, a licensed physician specializing in the field of dermatology, for a chronic skin condition. Bowman prescribed the medication Oxsoralen to be applied by Songer at home. This drug is activated by exposure to ultraviolet light, either natural or artificial. As a result of Songer's application of the medicine and exposure to direct sunlight, Songer claims that he suffered second and third degree burns to his feet and legs and aggravation of his underlying dermatitis. Songer claims that these injuries and damages resulted from Bowman's negligence.

The evidence is in dispute as to the length of time which Bowman prescribed Songer to remain in the sun. The prescription itself and the medical label reflect that Bowman's instructions for use were as follows:

Apply one hour prior to exposure. Start exposure at 1/2 hour noonday sun, twice weekly.

At trial, the manufacturer's warning, as set forth in the package insert and the Physicians' Desk Reference, ¹ was admitted as evidence of the dangerous characteristics of Oxsoralen and the standard of care in using the drug to treat patients. The relevant warning on Oxsoralen reads as follows:

Caution: Methoxsalen lotion is a potent drug capable of producing severe burns if improperly used. It should be applied only by a physician under controlled conditions for light exposure and subsequent light shielding. This preparation should never be dispensed to a patient. (Emphasis in original.)

The parties disagree as to whether, at the time he prescribed the medicine, Bowman warned Songer of the high risk of burning due to overexposure. Neither the label nor the prescription contained any warnings concerning the potential danger of severe burning. Bowman claims that Songer remained in the sun for one hour, contrary to his directions. Songer claims that he remained in the sun for one-half hour. Within 24 hours after the exposure, Songer suffered severe burns. Eventually, the aggravated condition prevented Songer from wearing shoes for extended periods of time and resulted in his termination from his employment in November, 1984.

Songer filed this medical malpractice action against Bowman alleging that Bowman negligently prescribed the ointment. The case was tried to a jury, which returned a verdict on May 17, 1988 in favor of Songer for $150,000, but found that Songer was 25% negligent. Accordingly, the court entered judgment on the verdict in the amount of $112,500 on that same day.

The trial court granted Bowman's timely motion for a new trial on August 23, 1988. On September 30, 1988, Songer filed a motion for reconsideration of the motion granting a new trial. Bowman objected both on the grounds that the court lacked jurisdiction to consider the motion and on the merits. The trial court heard the motion and reversed the order granting the new trial, reinstating the original verdict in favor of Songer. Bowman filed a motion for reconsideration of that reinstatement on November 14, 1988, and the trial court denied that motion. Bowman then appealed to the Colorado Court of Appeals. The court of appeals affirmed the lower court's rulings on the two issues in question. It reasoned that C.R.C.P. 59 is aimed at motions which seek to vacate, amend or modify the judgment entered. It found that the rule did not apply because Songer's motion for reconsideration did not challenge the judgment, but was directed to the order granting a new trial. Since an order granting a new trial does not constitute a final judgment, the court of appeals reasoned that the trial court retains jurisdiction to modify or rescind the order prior to the entry of any final judgment. Thus, the motion for reconsideration filed more than 15 days after the order granting a new trial was not contrary to the limitation set forth in C.R.C.P. 59. Songer, 804 P.2d at 263. On the second issue, the court of appeals found that the failure to warn of dangers inherent in a medical procedure is probative of and relevant to determining whether the proper standard of care was satisfied in a claim of negligence. Id. at 263.

II.

Bowman first argues that under C.R.C.P. 59, Songer's motion for reconsideration of the order granting a new trial should have been filed within 15 days of the order. We disagree.

C.R.C.P. 59 states in relevant part:

(a) Within 15 days of entry of judgment as provided in C.R.C.P. 58 or such greater time as the court may allow, a party may move for post-trial relief, including:

(1) A new trial of all or part of the issues;

(2) Judgment notwithstanding the verdict;

(3) Amendment of findings; or

(4) Amendment of judgment.

C.R.C.P. 59, 7A C.R.S. (1990). C.R.C.P. 59 makes no mention of any time requirement for a motion to reconsider an order granting a new trial. Songer argues that the source of the trial court's jurisdiction to respond to Songer's motion is its plenary power to modify or reverse any interlocutory order which it later determines was erroneously entered.

A trial court's grant of a motion for new trial is not a final judgment. People v. Campbell, 738 P.2d 1179 (Colo.1987) (order granting new trial is not a final judgment for purposes of appeal); People v. Cochran, 176 Colo. 364, 490 P.2d 684 (1974) (order granting a new trial is not a final judgment for purposes of appeal); Andrews v. Hayward, 149 Colo. 585, 369 P.2d 980 (1962); Chartier v. Winslow Crane Service, 142 Colo. 294, 350 P.2d 1044 (1960) (order granting a new trial is interlocutory and hence not reviewable). "When a motion for a new trial is granted, the issues stand undisposed of as if the cause had never been tried." Gonzales v. Trujillo, 133 Colo. 64, 65, 291 P.2d 1063, 1064 (1956).

Federal appellate courts have found that a trial court has the power to reconsider its order granting a new trial because such order is interlocutory and not final. Gallimore v. Missouri Pacific Railroad Co., 635 F.2d 1165 (5th Cir.1981); Bateman v. Donovan, 131 F.2d 759 (9th Cir.1942) (applying F.R.C.P. 59). The court of appeals relied on 6A J. Moore, Moore's Federal Practice § 59.13 at 59-279 (2d ed. 1979), which states:

Since an order granting a new trial is an interlocutory order, the district court has plenary power over it and this power to reconsider, revise, alter, or amend the interlocutory order is not subject to the limitations of Rule 59.

Songer, 804 P.2d at 263.

We also find this analysis of F.R.C.P. 59, which is substantially similar to C.R.C.P. 59, persuasive. Until a final judgment is entered, a trial court has jurisdiction to hear such a motion to reconsider, and such a motion is not subject to the time constraints of Rule 59.

Bowman contends that Kinzbach v. Midwest Plumbing & Heating Co., 128 Colo. 370, 262 P.2d 548 (1953), supports his argument that Rule 59 should apply to a motion to reconsider an order granting new trial. In that case, we determined that the defendants, who sought a writ of error from an order granting a new trial, had failed to file their motion to vacate the order within the time limit provided for in Rule 59. We stated that if the defendants intended to avoid a further trial by filing a writ of error in this court, it was necessary for them to make the judgment final by electing, within the time limit of Rule 59, to stand upon the record as made in the first trial. If such election had been made, Kinzbach concluded that the trial court would have had the duty to enter appropriate final orders and judgment in anticipation of proceedings in this court.

Kinzbach was decided before Rule 59 was amended in 1964 by the addition of subpart (h), which reads as follows:

The granting of a new trial shall not be an appealable order, but a party by participating in the new trial shall not be deemed to have waived any objection to the granting of the new trial, and the validity of the order granting new trial may be raised by appeal after final judgment has been entered in the case.

C.R.C.P. 59, 7A C.R.S. (1990). Prior to that amendment, a party which opposed the motion for new trial could appeal the granting of the motion only if it announced its intention to stand on the judgment and took an immediate appeal. If the party went to trial without following this procedure, it waived its right to appeal the order granting a new trial. C.R.C.P. 59(h) changed the law on waiver and allows the party opposing the motion for new trial to appeal that issue at the conclusion of the second trial. See generally Rice v. Groat, 167 Colo. 554, 449 P.2d 355 (1969).

As the premise for its analysis, Kinzbach assumed without deciding that an order granting a new trial was a final...