Chapman v. Harner

• Decision Date: 08 December 2014
• Docket Number: Supreme Court Case No. 13SC72
• Citation: 339 P.3d 519,2014 CO 78
• Parties: James B. CHAPMAN, M.D., Petitioner v. Carolyn K. HARNER, Respondent.
• Court: Colorado Supreme Court

339 P.3d 519

2014 CO 78

James B. CHAPMAN, M.D., Petitioner

v.Carolyn K. HARNER, Respondent.

Supreme Court Case No. 13SC72

Supreme Court of Colorado.

December 8, 2014

Attorneys for Petitioner: Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado.

Attorneys for Respondent: Hutchinson Black and Cook, LLC, Baine P. Kerr, Keith M. Edwards, Boulder, Colorado.

Attorneys for Amicus Curiae the Colorado Medical Society: Martin Conklin P.C., John L. Conklin, Jerome R. Geraghty, Denver, Colorado.

Attorneys for Amicus Curiae HCA–HealthOne: Davis Graham & Stubbs LLP, Andrew M. Low, John M. Bowlin, Denver, Colorado.

Attorneys for Amicus Curiae Colorado Defense Lawyers Association: Fennemore Craig, P.C., Troy R. Rackham, Maureen Weiland, Denver, Colorado.

Attorneys for Amicus Curiae the Regents of the University of Colorado: Office of University Counsel, Patrick T. O'Rourke, Nike L. Fleming, Denver, Colorado.

Attorneys for Amicus Curiae the Colorado Trial Lawyers Association: Leventhal, Brown & Puga, P.C., David P. Mason, Henry Miniter, Benjamin I. Sachs, Denver, Colorado, Parker Lipman LLP, Lorraine E. Parker, Denver, Colorado.

En Banc

Opinion

CHIEF JUSTICE RICE delivered the Opinion of the Court.

¶ 1 This case requires us to determine whether the doctrine of res ipsa loquitur shifts the burden of proof to the defendant, as we held in Weiss v. Axler, 137 Colo. 544, 559, 328 P.2d 88, 96–97 (1958), or whether it shifts only the burden of production, in accordance with the more recently adopted Colorado Rule of Evidence (“CRE”) 301.¹ While the court of appeals felt compelled to follow Weiss and disregard CRE 301 in the absence of any clear statements by this Court overruling our precedent, it specifically requested that we consider and resolve the tension between the two. Harner v. Chapman, 2012 COA 218, ¶ 20, ––– P.3d ––––. After considering the various conflicting authorities on this subject, we conclude that CRE 301 represents the better approach to burden-shifting under res ipsa loquitur. We therefore hold that CRE 301's general guidelines regarding rebuttable presumptions apply to res ipsa loquitur, and thus that the burden of proof remains on the plaintiff throughout a case involving res ipsa loquitur. To that end, we hereby overrule Weiss and its progeny to the extent that they hold otherwise. Accordingly, we reverse the judgment of the court of appeals and remand the case to that court to consider Respondent's remaining arguments.

I. Facts and Procedural History

¶ 2 Several hours after receiving an angiogram

performed by Defendant–Petitioner Dr. James B. Chapman (“Petitioner”), Dr. Lynn Harner died. Dr. Harner's wife, Plaintiff–Respondent Carolyn K. Harner (“Respondent”), subsequently sued Petitioner for medical malpractice. In order to receive the benefit of a rebuttable presumption of negligence under res ipsa loquitur, Respondent argued via expert testimony that her husband's aortic arch was punctured during the procedure, that such a puncture would not ordinarily occur absent negligence, and that it was more likely than not that the negligence of Petitioner (or someone whom he was responsible for) caused the injury. As is pertinent to this appeal, the trial court instructed the jury regarding res ipsa loquitur but refused to instruct the jury that if it found that res ipsa loquitur applied, it must find for Respondent unless Petitioner proved by a preponderance of the evidence that he was not negligent. The trial court acknowledged Weiss, in which this Court declared that “[t]he doctrine of res ipsa loquitur creates a compulsive presumption of negligence which continues to exist until the defendant has satisfied the [fact-finder] by a preponderance of the evidence that he was not negligent.” 137 Colo. at 559, 328 P.2d at 96–97. It reasoned, however, that the 1979 adoption of CRE 301 controlled. CRE 301 states:

In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes upon the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.

The trial court therefore instructed the jury that it must consider the presumption of negligence triggered by res ipsa loquitur alongside all the other evidence, but it did not instruct the jury that the doctrine shifted the burden of proof onto Petitioner. Under these instructions, the jury found that Petitioner did not negligently cause Respondent's husband's death.

¶ 3 Respondent appealed, and the court of appeals reversed. It held that the trial court erred by “refusing to instruct the jury, pursuant to still binding Colorado Supreme Court precedent, that the res ipsa loquitur doctrine shifts to the defendant the burden of proving by a preponderance of the evidence that he was not negligent,” and that the error was not harmless. Harner, ¶ 3. But despite remanding the case to the trial court for a new trial, id. at ¶ 5, the court of appeals recognized the inconsistency “between CRE 301 and the court's long-standing precedent that the res ipsa loquitur doctrine shifts the burden of proof to the defendant” and urged us to examine and resolve this tension, id. at ¶ 3. Because the court of appeals sided with Respondent regarding the res ipsa loquitur burden-shifting instruction, it declined to consider her additional arguments concerning the trial court's jury instructions on informed consent and assumption of the risk. Petitioner subsequently petitioned this Court for certiorari, which we granted.

II. Standard of Review

¶ 4 We review a trial court's decision to give a particular jury instruction for an abuse of discretion, but we review de novo whether a given jury instruction correctly states the law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).

III. Analysis

¶ 5 Res ipsa loquitur is a common-law evidentiary rule that creates a rebuttable presumption that the defendant was negligent. Kendrick v. Pippin, 252 P.3d 1052, 1061 (Colo. 2011), abrogated on other grounds by Bedor v. Johnson, 2013 CO 4, 292 P.3d 924. For res ipsa loquitur to apply, the plaintiff must establish that it is more probable than not that: “(1) the event is of the kind that ordinarily does not occur in the absence of negligence; (2) responsible causes other than the defendant's negligence are sufficiently eliminated; and (3) the presumed negligence is within the scope of the defendant's duty to the plaintiff.” Id. The issue at hand is what effect the doctrine should have once a plaintiff establishes that it applies. While Respondent contends that, under Weiss, res ipsa loquitur shifts the burden of proof to the defendant to show by a preponderance of the evidence that he was not negligent, Petitioner asserts that it merely shifts the burden of production under the general guidelines for rebuttable presumptions provided by CRE 301. We set about resolving this tension below and initially determine that Colorado precedent is unclear on the issue. Then, after examining extra-jurisdictional precedent and the policies behind each view of res ipsa loquitur's burden-shifting effect, we ultimately decide that CRE 301 represents the better approach.

A. Existing Case Law Does Not Resolve the Tension Between CRE 301 and Weiss

¶ 6 Our decades-old precedent set in Weiss and the more recently adopted CRE 301 are clearly in tension. We held in Weiss that “[t]he doctrine of res ipsa loquitur creates a compulsive presumption of negligence which continues to exist until the defendant has satisfied the [fact-finder] by a preponderance of the evidence that he was not negligent.” 137 Colo. at 559, 328 P.2d at 96–97. But we have also repeatedly held that res ipsa loquitur is a rebuttable presumption, see, e.g., Kendrick, 252 P.3d at 1061 ; Stone's Farm Supply, Inc. v. Deacon, 805 P.2d 1109, 1114 (Colo. 1991), and CRE 301 states that rebuttable presumptions do not shift the burden of proof unless “otherwise provided for by statute or by [the Colorado Rules of Evidence].” No such alternate provision is made for res ipsa loquitur.

¶ 7 Nor does our existing case law regarding the proper allocation of the burden of proof under res ipsa loquitur resolve this tension. Although the parties each cite several cases decided after the adoption of CRE 301 in support of their respective positions, our examination of Colorado case law merely highlights the confusion surrounding the proper allocation of the burden of proof once a plaintiff establishes a prima facie case of res ipsa loquitur.

¶ 8 Respondent supports her position that Weiss still controls the burden of proof under res ipsa loquitur chiefly through a footnote in Stone's Farm, a concurrence in Kendrick, and the court of appeals' opinion in Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009). We consider each in turn.

¶ 9 Stone's Farm provides the best support for Respondent's position. In that case, we considered primarily whether the trial court had jurisdiction over one of the defendants in an action by farmers against distributors of harmful potato fertilizer. 805 P.2d at 1112. Initially, we determined that the plaintiffs' res ipsa loquitur claim was a misstated general negligence claim. Id. at 1114. Then, after identifying res ipsa loquitur as an evidentiary rule rather than a substantive claim for relief, we included the following footnote: “Res ipsa loquitur allows an inference of breach of duty and causation, and requires the defendant to prove by a preponderance of the evidence that he was not negligent. ” Id. at 1114 n.10 (second emphasis added) (citing Weiss, 137 Colo. 544, 328 P.2d 88 ). This footnote is dicta, however, since we ultimately held that the trial court correctly required the defendant to come forward with exculpatory evidence to rebut res ipsa loquitur's presumption of negligence, which the...