Haralampopoulos v. Kelly, 10CA0668.

Docket NºNo. 10CA0668.
Citation361 P.3d 978
Case DateOctober 13, 2011
CourtCourt of Appeals of Colorado

361 P.3d 978

Vasilios HARALAMPOPOULOS, by his guardian John HARALAMPOPOULOS, Plaintiff–Appellant,
Jason L. KELLY, M.D., and Mauricio L. Waintrub, M.D., Defendant–Appellees.

No. 10CA0668.

Colorado Court of Appeals, Div. III.

Oct. 13, 2011.
Rehearing Denied Nov. 10, 2011.

361 P.3d 981

Holland & Hart LLP, Teresa D. Locke, Keeya M. Jeffrey, Denver, Colorado, for Plaintiff–Appellant.

Cooper & Clough PC, Kay J. Rice, Beth N. Nesis, Denver, Colorado, for Defendant–Appellee Jason L. Kelly, M.D.

Jaudon & Avery, LLP, David H. Yun, Jared R. Ellis, Denver, Colorado, for Defendant–Appellee Mauricio L. Waintrub, M.D.


Opinion by Judge FOX.

In this medical malpractice action, plaintiff, Vasilios Haralampopoulos, by his guardian, John Haralampopoulos, appeals the judgment entered on a jury verdict in favor of defendants, Jason L. Kelly, M.D., and Mauricio L. Waintrub, M.D., and the order awarding certain costs to defendants. We reverse the judgment and order and remand for a new trial.

I. Background

Plaintiff went to an emergency room with abdominal pain of unknown origin on November 23, 2004. Tests disclosed a cyst on his liver. The surgeon on call ordered a needle biopsyof the cyst for the following day. Waintrub, the internist on call, took plaintiff's medical history and admitted him for this procedure, but did not ascertain the cause of the cyst.

The following day, on November 24, 2004, Kelly performed the needle biopsy. Shortly after the cyst was pierced, plaintiff suffered a severe allergic reaction, became hypoxic, and stopped breathing. Before plaintiff could be revived, he suffered permanent brain injury.

According to guardian, had the cause of the cyst been determined, a risk would have been recognized that spillage of the cyst's contents during a needle biopsywould lead to anaphylactic shock. Guardian alleged that Waintrub was negligent in not ordering tests to determine the cause of the cyst or consulting a specialist before admitting plaintiff for the needle biopsy. Guardian alleged that Kelly was negligent in failing to consider the cause of the cyst and performing the biopsy without taking appropriate precautions against an allergic reaction.

II. Evidence of Cocaine Use

Guardian first contends the judgment should be reversed because the trial court erroneously admitted evidence of plaintiff's alleged cocaine use. We agree.

The introduction of hearsay testimony about remote drug use threatened to, and in our view did, derail the trial proceedings. The cocaine use issue—as dated and unreliable as the evidence was—was the centerpiece of Waintrub's and Kelly's defense. Rebutting that cocaine use was the reason for

361 P.3d 982

plaintiff's vegetative state became guardian's focus at trial.

A. Procedural History

1. Pretrial Motions and Rulings

Before the first trial,1guardian moved in limine to exclude the following hearsay statements, made during depositions, regarding plaintiff's alleged cocaine use:

• Guardian: During the 1990s, plaintiff's acquaintances told guardian that plaintiff was using cocaine. Although guardian had never seen plaintiff do so, he expressed his concern to plaintiff.
• Georgia Vlassis, one of plaintiff's sisters: At a December 3, 2004, meeting with other family members and attorney Patricia Dean after plaintiff suffered the adverse reaction, plaintiff's former girlfriend, Lori Hurd, said that “many years ago” plaintiff had used cocaine.
• [Kelly]:
A: [A]bout two weeks after the event [of plaintiff's injury and after the December 3 meeting with the family] ... [Hurd] asked me if cocaine could have had anything to do with what happened to [plaintiff]. And I said, Yes, I don't specifically know what happened to [him], but cocaine was probably a factor if he used it. And so I asked her if he did use it.
Q: What did she tell you?2
A: She told me that he was a recreational cocaine user and that that had been an issue in their relationship, and that in the days around his first emergency room visit, he had been using a significant amount of cocaine because of the pain; and he didn't feel that the physicians at the hospital after his first visit had given him enough pain medicine.

Defendants responded to the in limine motion, stating that the statements fit the medical diagnosis exception, CRE 803(4), and the residual exception, CRE 807. In an oral ruling, the trial court denied guardian's motion, explaining:

It seems to me that the probative value of those statements is imperative to the defense presentation of the case, but all of the issues brought up by plaintiff in the motion, in my view, are suitable for cross-examination and also for ultimate argument. But to—I think it is under the hearsay exception for purposes of medical diagnosis. Doctors every day rely on statements made to them not just by the patient, but also family members, in making treatment decisions.
Furthermore, under the residual hearsay, I find that it's also appropriate under that hearsay exception. Under 403, it is intensely probative in the case, and while it is also intensely prejudicial to the plaintiff[ ] in this case, on balance I think that it is appropriate to permit that information in. [sic]

After a mistrial, the case was assigned to a second judge who rotated into the division. Guardian again moved in limine to exclude the hearsay statements because of two changed circumstances: defense counsel's later admission that “at the time [Hurd's] statements were made [to Kelly], Defendant Kelly was no longer treating Plaintiff,”3and an affidavit from Hurd, who had not been deposed before the trial court's in limine ruling, denying the statements Kelly attributed to her. The court struck guardian's

361 P.3d 983

motion in limine, explaining that “this issue has previously been extensively litigated, and the Court perceives no new or changed circumstances that would require modification of the previous order on this issue,” despite the new information provided to the second judge.

The trial occurred before a third judge. In a trial brief, guardian again raised the hearsay issue. The court declined to “revisit the evidentiary rulings that have been made,” despite the new information that was not available to the first judge. During trial, guardian did not renew the hearsay objections.

2. Evidence at Trial

On direct examination, guardian's counsel asked guardian, “Did you ever see [plaintiff] take any illegal drugs?” He answered, “No, I didn't.” Guardian did not testify about any of the hearsay statements he related during his deposition until he repeated them on cross-examination. Guardian did not object to this testimony.

Before Vlassis testified, guardian called Margarita Mouroutsos, another of plaintiff's sisters who had been present at the December 3, 2004, meeting Vlassis described in her deposition. Guardian did not question her about the meeting. On cross-examination, defendants asked Mouroutsos what Hurd had said at the December 3 meeting:

Q: [D]uring that conversation, Ms. Hurd brought up the issue of cocaine use with [plaintiff], correct?
A: Yes, she did.
Q: And she stated, Could his cocaine use have had anything to do with this, didn't she?
A: She said that he had done cocaine in the past, way back in the past, and she was just questioning it.

Again, guardian did not object.

Later, guardian questioned Hurd about the meeting. Her testimony was consistent with that of Mouroutsos. Guardian also asked Hurd about her separate conversation with Kelly about two weeks after the December 3 meeting, almost three weeks after the biopsy procedure, and about three weeks after plaintiff's irreversible brain damage was known:

Q: At some point after that meeting ... did you have an opportunity to speak with Dr. Kelly privately about [plaintiff]?
A: I said, “Do you think that maybe [plaintiff] might have had an underlying heart problem that none of us were aware of?
A: I said, “[he] used to do drugs in the past, he used to do a little cocaine, and, you know, could it have been in his system and could it have interacted with the anesthesia or could it have set [sic] him into cardiac arrestor”—you know, I was—I don't know if I was asking it right, but I was searching for some kind of answer or reason why this happened.
And he said, you know, “I don't know.” He said, “I don't know.” And then he asked me, well, did I have knowledge of him doing cocaine, and I said, “Well, no, I wasn't—I was not here when he got admitted into the hospital.”
Q: He asked you if you had recent knowledge?
A: Yeah. I said, “No, I was not here. His family was here last—the night

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