COLORADO SELECT CASE LAW UPDATE

Federal Rules of Evidence

Though not case law, we find it important to note three significant amendments to the Federal Rules of Evidence that took effect on December 1.

The most important change is to F.R.E. 702. It has been revised to explicitly state that the proponent of an expert must demonstrate to the court that it is more likely than not that the witness meets the requirements of the rule. The Committee Notes which accompany the rule observe “many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a).”

The Rule now states that before an expert testifies, the court must find the expert’s basis and reliability for each opinion is sufficient to be admissible.

Two other rules have also been amended. F.R.E 106 has been amended to make it clear that if a party introduces a statement, an adverse party may require the introduction—over a hearsay objection—of another part of the statement or any other statement that in fairness ought to be considered to prevent a misimpression from being created.

In addition, F.R.E. 615 now makes it clear that in addition to barring witnesses from the courtroom, the judge may also prohibit disclosure of trial testimony to witnesses who are excluded and to prohibit witnesses from accessing trial testimony.

Colorado Supreme Court

Garcia v. Colo. Cab—Rescuer can recover under rescue doctrine if injuries are foreseeable—2023CO56 (11/14/23). In this negligence case, the Colorado Supreme Court addresses (or continues to try and address) how to analyze proximate cause under the rescue doctrine. Utilizing the foreseeability approach, the court holds that, to prove proximate cause, a rescuer must show that his injuries were reasonably foreseeable based on the defendant’s alleged tortious conduct and the nature of the rescue attempt. The Court then held that a rescuer’s injuries are reasonably foreseeable if they naturally flow from the circumstances created by the defendant’s tortious conduct or the rescue attempt. The opinion added that this does not mean that precisely how the injuries occurred had to be foreseeable, only that the harm was within the scope of risk that was reasonably foreseeable. The court then concluded that, based on the facts of this case, a reasonable jury could—and did—find that the rescuer’s injuries were proximately caused by defendant’s negligence.

Antero Treatment v. Veolia Water Technologies-Statutory—Statutory cap on supersedeas bonds is constitutional—2023CO59 (12/04/23). In this original proceeding, the Colorado Supreme Court addressed whether the $25,000,000 supersedeas bond cap set by C.R.S. § 13-16-125(1) (2023), is unconstitutional. The court concluded that the statute does not unconstitutionally infringe on the court’s rulemaking authority as exercised in C.R.C.P. 121, section 1-23(3)(a), nor does the statutory bond cap violate equal protection principles. Finally, the court concluded that the trial court did not abuse its discretion by refusing to order post-judgment discovery or security beyond the $25,000,000 supersedeas bond. [Note: CDLA had testified in favor of the bill enacting this statute and joined in an amicus in support of the Defendant].

Tenth Circuit Court of Appeals

Stenson v. Edmonds, et al.—Tenth Circuit acknowledges common law—22-1285 (11/15/23). On August 1, 2016, Plaintiff Sean Stetson and Defendant Edmonds were part of a low-speed, sideswipe vehicle accident. Although no one reported injuries on the scene, two weeks after the accident, Plaintiff sought medical treatment for injuries he claimed he sustained in the accident. With this visit, Plaintiff filed his now “plainly evident” campaign to fabricate a claim for damages. The Court noted that when a party to litigation seeks to intentionally deceive the court and its adversary, a district court may issue reasonable sanctions and require the deceitful party to pay attorney fees. Finding plaintiff did just that in this case, and the district court sanctioned him with reasonable attorney fees and dismissal of his non-economic claims, the Tenth Circuit affirmed the sanctions.

Team Industrial Services v. Zurich American Insurance Company, et al.—Summary judgment affirmed on coverage—22-3275 (11/29/23). Plaintiff Team Industrial Services, Inc. (Team) suffered a $222 million judgment against it in a wrongful-death lawsuit arising out of a steam-turbine failure in June 2018 at a Westar Energy, Inc. (Westar) power plant. Team sought liability coverage from Westar, Zurich American Insurance Company (Zurich), and two other insurance companies, arguing that it was, or should have been, provided protection by Westar’s Owner-Controlled Insurance Program (OCIP) through insurance policies issued by Zurich and the two other insurers. Team’s claims derived from the fact that its liability for the failure at the Westar power plant arose from work that had previously been performed by Furmanite America, Inc., which had coverage under Westar’s OCIP. The district court granted summary judgment to Defendants, and Team appealed. Not persuaded by Team’s arguments for reversal, the Tenth Circuit affirmed the district court.