Huntoon v. TCI Cablevision of Colorado, Inc.

• Decision Date: 30 November 1998
• Docket Number: No. 97SC480,97SC480
• Citation: 969 P.2d 681
• Parties: Sharon L. HUNTOON, Petitioner, v. TCI CABLEVISION OF COLORADO, INC., a Colorado corporation, Respondent.
• Court: Colorado Supreme Court

Page 681

969 P.2d 681

Sharon L. HUNTOON, Petitioner, v. TCI CABLEVISION OF COLORADO, INC., a Colorado corporation, Respondent.

No. 97SC480.

Supreme Court of Colorado En Banc.

Nov. 30, 1998.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, for Petitioner.

Purvis Gray Schuetze & Gordon, John A. Purvis, Glen F. Gordon, Boulder, for Petitioner.

Sherman & Howard L.L.C., Richard N. Baer, John W. Mill, John J. Cyran, Noel M. Franklin, Denver, for Respondent.

American Psychological Association, James L. McHugh, Jr., General Counsel, Nathalie Gilfoule, Washington D.C., Holme Roberts & Owen LLP, Boyd N. Boland, Laurence B. James, Denver, Jenner & Block, Kit A. Pierson, Paul M. Smith, Marc A. Goldman, Washington D.C., for Amici Curiae The American Psychological Association; The National Academy of Neuropsychology; The Colorado Psychological Association; and The Colorado Neuropsychological Society.

Justice MARTINEZ delivered the Opinion of the Court.

In this personal injury action brought by Sharon Huntoon against TCI Cablevision of Colorado, Inc. ("TCI") for injuries sustained in a rear-end automobile collision, we discuss the appropriate standards to resolve a motion for directed verdict and to admit specialized neuropsychologist testimony. ¹ The court of appeals reversed a directed verdict for Huntoon on issues of liability because it found some evidence of comparative negligence. See Huntoon v. TCI Cablevision, 948 P.2d 33, 34 (Colo.App.1997). The court of appeals also found that the admission of neuropsychologist testimony regarding the cause of Huntoon's organic brain injury was erroneous, and ordered that similar testimony be prohibited at a new trial. See id. at 35.

In our view, the trial court properly directed a verdict on liability. Considering the evidentiary context, we find that the inference the court of appeals would have the jury indulge is not supported by the record. In addition, the court of appeals' opinion might be read to unjustifiably subject neuropsychologists to a level of scrutiny different than that applied to all other experts under CRE 702. Colorado law supports no such distinction. We therefore reverse the decision of the court of appeals.

I.

On October 15, 1992, Sharon Huntoon was stopped on University Avenue in Boulder when a truck owned by TCI and driven by a TCI employee struck her 1982 Subaru from behind. The impact caused Huntoon's Subaru to be pushed forward, where it came into contact with a Cadillac Seville driven by Diana Kahn, who had apparently stopped to wait for a car in front of her that was impeding the flow of traffic. While Kahn stated that the car before her was slowly pulling into a diagonal parking place to the right, the TCI employee testified that he remembered seeing reverse lights and believed the car was backing out. Huntoon testified that she did not remember whether the car in front of Kahn was pulling in or out.

Huntoon did testify, however, that she was aware of activity taking place in the roadway and stopped her Subaru when she saw Kahn's Cadillac Seville stop in front of her. Huntoon originally thought it could have been as long as a minute from the moment she stopped until the TCI truck struck her vehicle. However, she conceded she may have been mistaken in light of Kahn's testimony that only five to ten seconds elapsed before the impact.

The TCI driver gave testimony to the effect that he first noticed the back-up lights of the car in front of Kahn, followed by both Kahn and Huntoon's brake lights. He explained that he saw the rear of Huntoon's Subaru "hunch up" and forcefully applied his brakes, but was unable to stop in time to avert a collision. The TCI employee testified that he was partly at fault because he failed to avoid the accident, and that Kahn was also at fault for stopping suddenly. ² He acknowledged that there was nothing Huntoon could have done to avoid being hit.

Police officers investigating the accident found some thirteen feet of skid marks attributable to the TCI vehicle. No marks were left by either the Huntoon or Kahn automobiles. Testimony indicated TCI's internal investigation found its driver to have been at fault, and this employee was placed on probation at work as a result. ³ Witnesses also confirmed that TCI paid for the damage to both the Huntoon and Kahn vehicles. ⁴

Although Huntoon told an investigating officer that she was experiencing pain, she initially refused medical assistance. However, she continued to experience physical discomfort and subsequently began having difficulties with short-term memory and other cognitive abilities. Huntoon was eventually diagnosed with cognitive dysfunction, including difficulties with completion of tasks, attention to detail, and interaction with others.

Dennis McCarthy, Ph.D., a neuropsychologist involved in Huntoon's post-accident treatment regimen, was one of several professionals called to testify during her case in chief. He explained that neuropsychologists perform the "study of brain behavior relationships and use a battery of psychological and neuropsychological tests that are standardized in order to elicit observations of relevancy of various aspects of the brain in terms of cognitive and intellectual function." Dr. McCarthy also related his educational history, which consisted of three degrees in psychology, a master's and doctoral degree, and post-doctoral training - including coursework and understudy - in the field of neuropsychology.

Dr. McCarthy stated that he gave Huntoon an extensive series of neuropsychological tests and analyzed the results. The eight to ten hour assessment included an extensive clinical interview designed to provide a detailed life history.

When Dr. McCarthy was asked for his opinion on the relation between Huntoon's injuries and the accident, TCI objected, arguing:

This witness has not been qualified as a medical doctor and to the extent that [counsel] is asking him to render an opinion as to brain injury, which is a physical manifestation, which is a result of neuropsychological testing, so we would object.

The trial court initially sustained the objection on the basis of insufficient foundation. Huntoon's counsel then asked a series of questions which allowed Dr. McCarthy to relate the extent to which test results allow neuropsychologists to diagnose and treat organic brain injury. ⁵ He was again asked to discuss his findings with regard to the brain injuries Huntoon suffered from the October 15 accident. TCI renewed its objection, insisting "[t]his expert is not qualified to testify as to the causation of brain injury as opposed to, for example, cognitive impairment as related to neuropsychological testing." The trial court overruled the objection, and Dr. McCarthy was allowed to answer. He testified that there was injury to the brain and he identified several areas of the brain where there was continuing impairment.

At the close of the evidence, the trial court directed a verdict in favor of Huntoon on the issue of liability, finding the TCI employee negligent, and the evidence introduced at trial insufficient to establish negligence on the part of Huntoon or Kahn. ⁶ The jury awarded damages.

The court of appeals reversed. It found that the trial court erred by directing the verdict on liability because the evidence, viewed in the light most favorable to TCI, was such that "a jury could find that a portion of fault lay with [Huntoon]." Huntoon, 948 P.2d at 34. It therefore remanded the case for a new trial.

The court of appeals also addressed TCI's assertion that Dr. McCarthy, the neuropsychologist, should not have been allowed to testify as to the causation of Huntoon's organic brain injury. Finding the "clear import" of the testimony to touch upon the issue of causation, the court stated, "no authority in Colorado allows a neuropsychologist to testify to the physical cause of organic brain injury." Id. at 35.

Because we agree with the trial court that the evidence was insufficient to submit a theory of comparative negligence to the jury, and because we find no abuse of discretion in the admission of neuropsychologist testimony on issues of causation, we now reverse the judgment of the court of appeals.

II.

Huntoon argues that the court of appeals applied the wrong standard in its analysis of the directed verdict in this case, and that the evidence before the trial court was simply insufficient to support an inference of comparative negligence. TCI contends that the court of appeals employed an appropriate standard, and that the record contains facts sufficient to allow a jury to entertain a theory of comparative negligence. We are of the view that the court of appeals should have let the directed verdict stand.

A.

We turn first to the standards governing a motion for directed verdict. The court of appeals pronounced that "the evidence supporting a directed verdict must do more than contradict conflicting evidence; it must nullify such evidence." Huntoon, 948 P.2d. at 34 (emphasis added). The court cited our decision in Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950), as the basis for its nullification language. Huntoon suggests that Gossard has been displaced by our articulation of the directed verdict standard in more recent decisions. See, e.g., Gorab v. Zook, 943 P.2d 423, 426-27 (Colo.1997) ("A motion for directed verdict should not be granted unless the evidence compels the conclusion that a reasonable factfinder could not disagree and that no evidence or inference has been presented at trial upon which a verdict against the moving party could be sustained.").

Although the nullification language in Gossard is not useful to analyze the evidence in this case, the law has not changed. Rather, the difference between Gossard and Gorab is explained by considering the evidentiary context in which the directed verdict motions were made.

In Gossard, the trial court had heard contradictory testimony on...