September 19, 2014

Tenth Circuit: Summary Judgment for Medical Malpractice Defendants Affirmed

The Tenth Circuit Court of Appeals published its opinion in Talavera v. Wiley on Wednesday, August 7, 2013.

Carmen Talavera suffered a stroke while visiting a store in November 2007 and incurred permanent disabilities that she attributed to the medical malpractice of personnel at the Southwest Medical Center (SWMC), where she was taken after her stroke. Talavera brought claims against a number of these medical personnel defendants under diversity jurisdiction, alleging that they should have diagnosed and immediately treated her stroke symptoms with blood-clotting therapy, or, absent that, proceeded with early surgical intervention to prevent damage caused by swelling in her brain. The district court granted summary judgment for the defendants.

The Tenth Circuit first discussed the weight to give a report submitted by Dr. Helgason, Talavera’s expert neurologist. In the report, Dr. Helgason offered opinions as to how she believed the defendants had caused Talavera’s injuries. She later qualified those opinions in her deposition. The court held that a party “cannot create a genuine dispute of material fact solely by relying on a conclusion that was written in an expert report and later qualified during that expert’s deposition. A witness’s later qualifications are the relevant ‘opinions’ for purposes of summary judgment unless there is some reason for disregarding them.”

The court then applied Kansas law to Talavera’s tort claims and affirmed summary judgment.

Colorado Court of Appeals: Officer’s Testimony Regarding Speed of Vehicle was Expert Testimony Disguised as Lay Opinion but Error was Harmless

The Colorado Court of Appeals issued its opinion in People v. McGinn on Thursday, June 20, 2013.

Vehicular Eluding—Double Jeopardy—Merger—Lay Witness—Expert Testimony—Prosecutorial Misconduct.

Defendant Glenn McMinn appealed the judgment of conviction entered on a jury verdict finding him guilty of four counts of vehicular eluding, four counts of eluding a police officer, and one count of menacing. The judgment was affirmed.

McMinn and his girlfriend got into a fight, and he called the police. When Police Officer Anderson arrived at his house, McMinn was already in his pickup truck. He backed out of his driveway and accelerated. Because there was packed snow and ice on the road, the truck slid sideways, striking the officer. McMinn then led the police on a chase before being apprehended.

McMinn contended that under double jeopardy principles, his four convictions for vehicular eluding must be merged and his four convictions for eluding a police officer also must be merged. A defendant may be charged with multiple offenses of vehicular eluding arising from a single criminal episode when he or she has performed discrete acts of eluding one or more peace officers, each constituting a new volitional departure in the defendant’s course of conduct. Here, four officers, including Anderson, testified about being individually eluded during, and each had individual facts. Thus, the evidence supports separate convictions here.

McMinn also contended that the trial court plainly erred in allowing Sergeant Pinson to testify, as a lay witness, to calculations regarding the speed of the truck, and to opine, based on these calculations, that the truck was a deadly weapon. His testimony in fact was expert testimony presented in the guise of lay opinion, and the error in admitting such testimony was obvious and substantial. Because this evidence was cumulative of other evidence properly presented at trial, however, the erroneous admission of Sergeant Pinson’s expert opinions does not warrant reversal.

McMinn further argued that reversal was required due to prosecutorial misconduct in closing argument. Although some of the prosecutor’s comments may have been improper, they weren’t so obvious to undermine the fundamental fairness of the trial or cast serious doubt on the reliability of the judgment of conviction, especially when considered in the light of the evidence presented.

Summary and full case available here.

Colorado Court of Appeals: No Shreck Hearing Required for Admission of Fingerprint Evidence

The Colorado Court of Appeals issued its opinion in People v. Wilson on Thursday, May 23, 2013.

Voir Dire—Entrapment—Shreck Hearing—Expert Testimony—Fingerprint Evidence—Prior Conviction—Burden of Proof—Preponderance of the Evidence.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance, as well as the sentence that the court subsequently imposed. The Court of Appeals affirmed the judgment and sentence.

In May 2008, defendant asked an undercover police officer, who was posing as a prostitute on east Colfax Avenue, if she wanted to smoke crack cocaine with him. When he showed her a Blistex tube that contained three rocks of crack cocaine, police officers from the Aurora Police Department arrested him.

Defendant argued that voir dire was insufficient because the trial court refused his request that the court read to the potential jurors a legal definition of the defense of entrapment. Both the prosecutor and defense counsel, however, had the opportunity to question jurors about the general nature of the entrapment defense. Further, the trial court properly gave instructions to the jury on the issue of entrapment at the close of the evidence. Accordingly, the trial court’s denial of defendant’s request to instruct the jury on the defense of entrapment duringvoir dire was not an abuse of discretion.

Defendant further argued that the trial court abused its discretion when it denied his motion to hold a Shreck hearing on the admissibility of expert testimony regarding fingerprint evidence concerning a prior conviction. [People v. Shreck, 22 P.3d 68 (Colo. 2001).] The Court ruled that the motions court acted within its discretion when it denied defendant’s request for a Shreck hearing because: (1) the trial court was the finder of fact, not a jury; (2) defendant was permitted to raise issues during the sentencing hearing that would have been allowed during a Shreck hearing; (3) the evidence was not complex; and (4) fingerprint comparisons are reliable evidence.

Defendant contended that the trial court denied his right to due process of law when it used the wrong burden of proof—a preponderance of the evidence—in finding that he had been convicted of the 1997 drug-related felony. When a sentencing statute does not establish a burden of proof, “the prosecution need only prove the existence of prior conviction facts by a preponderance of the evidence.” CRS § 18-18-405(2.3)(a) was a sentence enhancer, not a substantive offense or an element of a substantive offense, and did not contain a prescribed burden of proof. Thus, the trial court used the proper evidentiary standard—a preponderance of the evidence—and defendant’s due process rights were not abridged.

Summary and full case available here.

Tenth Circuit: Convictions and Sentences Affirmed in Case Arising from Defendants’ Operation of Medical Clinic

The Tenth Circuit published its opinion in United States v. Schneider on Wednesday, January 16, 2013.

Dr. Stephen Schneider was a doctor of osteopathic medicine and his wife, Ms. Schneider, was a licensed nurse (“the Schneiders”). They owned and operated Schneider Medical Clinic in Haysville, Kansas, where they provided pain management treatment, including the prescription of controlled substances. A Kansas grand jury indicted the Schneiders. At trial, they were convicted of several counts of unlawful drug distribution, health care fraud, and money laundering arising from their operation of the Medical Clinic. The district court sentenced Dr. Schneider to 360 months’ imprisonment, and Ms. Schneider to 396 months’ imprisonment. The Schneiders appeal their convictions, alleging that (1) they were denied the right to conflict-free representation; (2) the district court erroneously admitted expert testimony; (3) the district court improperly instructed the jury; and (4) there was insufficient evidence to support the charge of health care fraud resulting in death.

(1) The Schneiders argue they were denied the right to conflict-free representation.

The Tenth Circuit held Dr. and Ms. Schneider waived all potential conflicts voluntarily, knowingly, and intelligently, based on the totality of the circumstances, following two hearings on potential conflicts.

(2) The Schneiders contend the district court erroneously admitted expert testimony.

Dr. Parran, an expert witness for the government, testified “the clinic was at fault” for illegal drug distribution. Dr. Parran also testified that, from his review of the records, the Schneiders ran a “dishonest practice.” Another expert witness for the government, Dr. Jorgensen, opined that the Schneiders’ health care fraud resulted in patients’ deaths, and that he believed the Schneiders filed fraudulent claims. The Schneiders objected to this testimony.

The rules of evidence allow an expert to opine on an “ultimate issue” to be decided by the trier of fact. Fed. R. Evid. 704(a). However, an expert may not simply tell the jury what result it should reach; he or she must explain the basis for any summary opinion. Here, the Tenth Circuit found no error in the admission of Drs. Parran and Jorgensen’s testimony. Neither doctor told the jury to reach a particular verdict, i.e., that Dr. Schneider was guilty. Rather, after explaining at great length their observations from the evidence, they summarized their findings in their testimony.

(3) Defendants allege the district court improperly instructed the jury.

The Tenth Circuit found no abuse of  discretion in the jury instructions objected to at trial, considering de novo the instructions as a whole to determine whether they accurately informed the jury of the governing law. The Tenth Circuit found no plain error in the instructions objected to for the first time on appeal.

(4) The Schneiders argue there was insufficient evidence to support the charge of health care fraud resulting in death.

After viewing the evidence in the light most favorable to the verdict to ascertain whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt, the Tenth Circuit held sufficient evidence supported the convictions on these counts.

AFFIRMED.

Colorado Supreme Court: Trial Court Abused its Discretion by Striking Rebuttal Testimony of Expert Witness

The Colorado Supreme Court issued its opinion in In re Warden v. Exempla, Inc. on Thursday, December 20, 2012.

Scope of Discovery—CRCP 37—Rebuttal Disclosures—Late Disclosures—CRCP 26.

The Supreme Court vacated the trial court’s order striking the testimony of plaintiff’s rebuttal expert witness and the testimony of two previously disclosed expert witnesses. The Court held that the trial court abused its discretion when it excluded the expert witness’s rebuttal testimony because her testimony properly refuted a central theory of the defendants’ case. It also held that the trial court abused its discretion when it excluded the new testimony of two previously disclosed experts, because the late disclosure did not harm defendants, as required for sanctions under CRCP 37. The Court therefore made the rule absolute and remanded the case for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Judgment Reversed in Bias-Motivated Crime Case Because Officer’s Testimony Constituted Expert Opinion

The Colorado Court of Appeals issued its opinion in People v. Ramos on Thursday, November 8, 2012.

Bias—Third-Degree Assault—Lay Witness—Expert Testimony—DNA Sample—Crim.P. 41.1(c) and 16(II)(a)(1).

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of committing a bias-motivated crime and third-degree assault. The judgment of conviction was reversed and the case was remanded to the trial court.

While riding in the front passenger seat of a car driven by his girlfriend, defendant turned to the back seat, where victim R.L. was riding, and made bias-related comments to her. Defendant then proceeded to assault R.L., punching her several times in the face and lower neck.

On appeal, defendant asserted that the trial court abused its discretion in allowing a police detective to testify as a lay witness regarding blood spatter and transfer evidence that defendant left on R.L.’s clothing. When an officer’s opinions require the application of, or reliance on, specialized skills or training, the officer must be qualified as an expert before offering such testimony. Here, although the detective had not been qualified as an expert, (1) the detective testified about his extensive experience investigating cases involving blood; (2) the detective used the technical terms “spatter” and “transfer” and defined them for the jury; (3) the prosecutor advised the court that the detective was testifying “as to his training and experience,” and used that phrase four times in questioning the detective; and (4) the detective’s testimony was not based on his personal knowledge or investigation of this case. The trial court abused its discretion by allowing the detective to testify as a lay witness regarding blood spatter and blood transfer, and this error was not harmless. Therefore, the judgment was reversed and the case was remanded for a new trial.

Defendant also contended that the trial court erred in compelling him to provide a DNA sample, because the People did not provide an affidavit setting forth the grounds to support an order to collect evidence pursuant to Crim.P. 41.1(c). Based on the plain language of Crim.P. 16(II)(a)(1), the trial court did not need an affidavit or showing of special circumstances to order defendant to provide non-testimonial evidence. Therefore, the trial court did not err in this regard.

Summary and full case available here.

The Next Generation of Cross-Examination: Constructive Cross-Examination

This article is excerpted from the book, Cross-Examination: Science and Techniques, by Larry Pozner and Roger Dodd.

For generations, the cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent’s theory of the case. Under the newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically, according to Roger Dodd, a national expert on cross-examination techniques.

Constructive cross-examination is a quantum shift from the historical outlook on the central purpose of cross-examination. It is not a technique, rather it is a new perspective on the ability to use cross-examination at trial to teach the cross-examiner’s theory of the case.

The old way: Destructive cross-examination

Historically, cross-examination was a series of techniques designed to challenge the witness’ testimony, including attacks on the witness’ credibility. The primary goal of destructive cross-examination was to attack the witness or the witness’ story whenever and wherever feasible. It was essentially negative or destructive in its outlook. For generations, trial lawyers were schooled in this outlook. The operable phrase was “to attack.” The cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent’s theory of the case.

Consequently, the tone of destructive cross-examination was aggressive and negative. The courtroom climate generated by this form of cross-examination was tense. By the end of the cross-examination, someone was going to be damaged, whether it was the witness or the cross-examiner.

Under the former generation of cross-examination, the cross-examiner consciously or unconsciously believed that the critical goal of teaching her theory of the case to the fact finder would be left to her direct examinations. This most critical goal of trial was specifically reserved for direct examination of the cross-examiner’s own witnesses.

What is constructive cross-examination?

Under this newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically: use opposing witnesses to build the cross-examiner’s theory of the case. While the cross-examiner can still challenge opposing witnesses and their story, thus damaging the opponent’s theory of the case, this goal becomes secondary under constructive cross-examination.

This exponential expansion of the function and purpose of cross-examination rewards the cross-examiner with broader, more productive cross-examinations that are at the same time easier and less stressful.

Historically, the lawyer ready to cross examine would ask herself one fundamental question: “Does this particular witness hurt my theory of the case?” If the answer was no, the correct technique was often, “Ask no questions.” Under this new, modern theory of constructive cross-examination, the lawyer must expand her internal inquiry and ask herself two fundamental questions.

The first question remains the same, “Does this particular witness hurt my theory of the case?” Whether the answer is yes or no, a second, more important, question is asked: “Does this witness possess facts that I, the cross-examiner, can use to build, support, or strengthen my theory of the case?” So much more can be accomplished by asking the second question. Cross-examination becomes an opportunity to introduce, support, and reinforce the cross-examiner’s theory of the case. Even when a witness’ testimony presents few or no good areas for attack, the cross-examiner can still search for areas in which the hostile witness can be questioned so as to bring out facts supporting the cross-examiner’s theory of the case. Therefore, the likelihood of asking no questions of the witness on cross-examination has all but been eliminated.

If the answer to both questions asked at the end of direct examination is truly “no,” the cross-examiner may legitimately decline to cross examine. However, if the answer to both questions is “no,” the cross-examiner must ask herself why this witness was called by the opponent. What did the witness add to her opponent’s theory of the case?

To be clear, destructive cross-examination remains an available and necessary component of cross-examination. However, these attacks are now secondary in nature. Destructive cross examination is no longer the first and primary option of the cross-examiner. In every aspect of trial – from jury selection through opening statements, direct examinations, cross-examinations, and closing arguments – the trial advocate focuses on teaching her theory of the case to the fact finder. The aim from beginning to end is to educate the fact finder on that lawyer’s theory of the case. This singular focus provides fact finders the necessary facts upon which they can build an understanding that supports the lawyer’s theory of the case.

Larry Pozner and Roger Dodd together have revolutionized the practice of cross-examination in the United States. In addition to Cross Examination: Science and Techniques, they are the creators of the nationally acclaimed seminar “Advanced Cross-Examination Techniques.” They have lectured, appeared as expert witnesses, or conducted full-day CLE programs on cross-examination in 46 states as well as in Canada, Mexico and Puerto Rico.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

 

CLE Program: Advanced Constructive Cross-Examination

This CLE presentation will take place on Thursday, November 29, at 9:00 a.m. Participants may attend live in our classroom or watch the live webcast.

 

Colorado Court of Appeals: Defense Counsel’s Assistance at Trial Court Was Effective in Several Ways

The Colorado Court of Appeals issued its opinion in People v. Aguilar on Thursday, October 25, 2012.

Crim.P. 11 and 35(c)—Second-Degree Murder—Felony Murder—Burglary—Ineffective Assistance of Counsel—Expert Witness—Jury Instruction—Double Jeopardy Rights—Providency Hearing—Sentencing.

Defendant, appearing pro se, appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief alleging ineffective assistance of counsel. The order was affirmed.

Defendant and his companions broke into the victim’s home, bound and gagged the victim, and covered him with a mattress. They then ransacked the victim’s home and carried items away. The victim was unable to free himself and consequently died. A jury found defendant guilty of first-degree burglary, second-degree burglary, theft, robbery, and conspiracy to commit robbery. The jury could not reach a verdict on a charge of felony murder and a mistrial was granted with respect to that charge. Before the scheduled retrial, defendant pleaded guilty to second-degree murder in exchange for dismissal of the felony murder charge.

Defendant contended that he received ineffective assistance of trial counsel because counsel failed to hire an expert to observe and rebut the prosecution’s use of consumptive DNA testing. Defense counsel’s decision to call or not call his own DNA expert was a matter of trial strategy. Defendant failed to allege facts establishing that counsel’s choice was outside the wide range of professionally competent assistance. Consequently, defendant was not entitled to a hearing on this claim.

Defendant also contended that counsel was ineffective for failing to tender a reckless manslaughter instruction at trial. Defendant’s theory of defense was that he did not cause the victim’s death. Therefore, reckless manslaughter was inconsistent with defendant’s theory of defense and defendant cannot prove that counsel’s performance was deficient in this regard.

Defendant also argued that his trial counsel was ineffective for not advising him of his double jeopardy rights. Specifically, defendant argued that because the jury had convicted him of first-degree burglary, a lesser-included offense of felony murder, he could not be retried for felony murder and, therefore, his counsel was ineffective in neglecting to advise him that he should not plead to another lesser included offense of felony murder. The jury convicted defendant of burglary and expressly hung on the charge of felony murder. The implied acquittal rule does not bar retrial of a greater offense when a jury deadlocks on that charge but convicts on a lesser-included offense. Therefore, a retrial for felony murder would not have violated defendant’s double jeopardy rights. Consequently, his claim that counsel was ineffective for allowing his guilty plea to avoid a second trial failed.

Defendant further contended that he received ineffective assistance of counsel during the Crim.P. 11 providency hearing. However, the plea agreement signed by defendant and the record of the plea hearing do not support defendant’s argument. Because defendant was advised orally or in writing of each of the asserted errors, he failed to establish that his plea was not voluntary, knowing, or intelligent, or that his defense counsel provided deficient performance.

Finally, because defendant’s convictions were not supported by identical evidence, his counsel was not ineffective in failing to secure concurrent sentences. The order was affirmed.

Summary and full case available here.

Tenth Circuit: Murder Conviction Affirmed; Given Overwhelming Evidence of Guilt, Any Error Harmless

The Tenth Circuit Court of Appeals published its opinion in Banks v. Workman on Wednesday, September 5, 2012.

The defendant, Anthony Banks, was convicted of murder and sentenced to death. He and a companion had kidnapped, raped, and shot the victim. After losing his state court appeal, Banks appealed the denial of his federal habeas petition. He alleged a Confrontation Clause violation because the prosecution called Banks’s brother as a witness even after he stated he would plead the Fifth and asked if Banks had told him he shot the victim. The state court found that to be harmless error. The standard of review of the state court’s determination that a constitutional error was harmless is “whether the error had a ‘substantial and injurious effect’ on the jury’s decision.” To reverse a conviction under this standard, the reviewing court must “have a 1grave doubt1 about the effect of the error on the verdict.” Given the overwhelming evidence against the defendant, The Tenth Circuit had no such doubt.

Banks’s claimed violation of his due process right to a competent expert and Sixth Amendment right to effective assistance of counsel because his expert witness was allegedly intoxicated when he testified. Because the defendant did not object at the trial or argue this point on direct appeal, he was procedurally barred by Oklahoma statute from raising this issue. Because the few reasons a federal court would excuse compliance with a state procedural rule were not present, Banks lost on this issue as well.

The Tenth Circuit affirmed Banks’s conviction after disposing of his additional claims that the government failed to disclose exculpatory evidence, of prosecutorial misconduct, and cumulative error.

Tenth Circuit: Experts As Lay Witnesses; Exclusion of Experts; No Prosecutorial Misconduct

The Tenth Circuit published its opinion in United States v. Orr on August 29, 2012.

William Orr, a creator of an alternative fuel, was convicted of wire and mail fraud, tax evasion, and making false statements to investors and the federal government. Orr hired scientists to perform tests on his fuel at his request. These scientists testified at trial as lay witnesses for the prosecution. Orr objected to the admission of their testimony because the government did not qualify them as expert witnesses under FRE 702. The Tenth Circuit found no abuse of discretion in allowing them to testify as lay witnesses. “It makes no difference if the court qualified these witnesses as experts because Orr engaged them to perform the precise services and provide the information which was the subject of their testimony. . . . The trial court walked a careful line between allowing these witnesses to testify based on first-hand knowledge and disallowing opinions based on their expertise.” The court also disposed of Orr’s argument that “the admission of the non-expert testimony violated his Sixth Amendment right to confront the witnesses and his Fifth Amendment right to a fair trial. . . .” Claiming defense counsel could not ask certain questions of the witnesses with no way to ascertain what those questions might be was too speculative to be an error.

Orr also objected to the exclusion of some of his proffered experts. The Tenth circuit found Orr failed to meet his burden of showing one expert’s methodology was reliable. Other witnesses were properly excluded because their testimony would confuse the issues. A defendant’s “right to present a complete defense must ‘bow to accommodate other legitimate interests in the criminal trial process.’”

Orr claimed government misconduct based on the prosecutor’s hypothetical questions to investor witnesses. The court disagreed. “[T]he prosecutor here was required to show that Orr deliberately misrepresented material facts to his investors. The prosecutor’s question went to the material nature of Orr’s statements. The question focused on the investor’s willingness to supply money if he discovered the tests did not show the promised advantages over other fuels. The prosecutor did not express her personal beliefs about these matters and the question was based on testimony presented to the jury.”

The court also denied Orr’s prosecutorial misconduct claims that the prosecution implicitly called Orr and his defense counsel liars in closing argument by saying the investors relied on Orr’s “false statements and his lies to invest a second time.” Where some of the charges required proof the defendant lied to his investors and the government, this was acceptable language. “In the proper context, such as where the testimony conflicts on key aspects of a case and the jury must determine credibility, it is not misconduct to refer to the defendant’s statements as lies.”

Colorado Court of Appeals: Criminal Trespass Conviction Vacated; Locked Car Door Tampered With and Opened Is Not Proof of Intrusion into Protected Area

The Colorado Court of Appeals issued its opinion in People v. Rhodus on August 2, 2012.

Criminal Trespass of a Motor Vehicle—Theft by Receiving—Vehicular Eluding—Evidence—Expert Testimony—Closing Argument.

Defendant appealed the judgment of conviction following jury verdicts finding her guilty of first-degree criminal trespass, theft by receiving, and vehicular eluding. The judgment was vacated in part and affirmed in part.

Defendant contended there was insufficient evidence to support her conviction for first-degree criminal trespass of B.C.’s car because there was no evidence that anyone had entered it. An “entry” of a motor vehicle, for purposes of criminal trespass, requires an intrusion into the protected area of the motor vehicle. Evidence that a locked car door has been tampered with and opened is insufficient to support a conviction for first-degree criminal trespass. Here, no evidence was presented at trial that anyone or anything passed the line of the threshold into the protected interior area of B.C.’s car. Consequently, defendant’s conviction on this count was vacated.

Defendant contended there was insufficient evidence to support her conviction for class 4 felony theft by receiving of C.M.’s car. Defendant operated the car without a key, attempted to elude police and conceal the car from them, and fled on foot, effectively abandoning the car. Therefore, there was sufficient evidence to prove defendant knew the vehicle was stolen. Further, there was sufficient evidence to prove ownership and value of the vehicle.

Defendant contended there was insufficient evidence to permit the jury to find her guilty of vehicular eluding. At trial, the jury was presented evidence that defendant drove at high speeds around sharp corners, drove on the wrong side of the street, drove over front lawns in a residential neighborhood, and braked suddenly several times in an apparent attempt to cause a collision with the pursuing officer. This evidence was sufficient to permit the jury to conclude that defendant’s actions put the officer she was eluding at high risk of injury. Consequently, the evidence was sufficient to support the vehicular eluding conviction.

Defendant argued that the trial court erred by permitting the pursuing officer to present expert testimony in the guise of lay opinion testimony. The officer testified about his pursuit of defendant, and any reference to his “training and experience” of foot chases was harmless.

Defendant argued that the trial court abused its discretion by permitting the prosecutor to improperly discuss facts not in evidence during closing argument. The facts referred to by the prosecution were part of the record. Consequently, the trial court did not abuse its discretion by permitting the prosecution to discuss this fact and the inferences reasonably drawn from it during closing argument.

Summary and full case available here.

Colorado Court of Appeals: Enforcing a Limitation of Liability Provision After Willful and Wanton Breach of Contract Would Shield Party from Consequences of Such Conduct and Is Contrary to Public Policy

The Colorado Court of Appeals issued its opinion in Core-Mark Midcontinent, Inc. v. Sonitrol Corporation on July 19, 2012.

Breach of Contract—Limitation of Liability—Willful and Wanton—Expert Witness—Non-Party at Fault.

Defendant Sonitrol Corporation appealed the judgment entered against it after a jury trial on the breach of contract claims of plaintiffs, Core-Mark International, Inc. and its wholly owned subsidiary, Core-Mark Midcontinent, Inc. (collectively, Core-Mark); and Core-Mark’s casualty insurers, U.S. Fire Insurance Company and Commonwealth Insurance Company (collectively, Insurers). It also appealed the district court’s award of costs based on that judgment. The judgment as to liability was affirmed, the judgment as to damages was reversed, the costs award was vacated, and the case was remanded for a new trial on damages.

Sonitrol and Core-Mark contracted to have Sonitrol install and monitor a burglar alarm system at one of Core-Mark’s warehouses. Sonitrol failed to detect or to respond to a burglary at the warehouse. One of the burglars, David Ottersberg, started a fire in the warehouse that effectively destroyed the building and its contents. Sonitrol contended that a division of the Court of Appeals erred in Sonitrol Iby ruling that a limitation of liability provision like that here is not enforceable where a party has committed a willful and wanton breach of contract [United States Fire Ins. Co. v. Sonitrol Mgmt. Corp., 192 P.3d 543 (Colo.App. 2008)]. A limitation of liability provision generally is enforceable because it represents the parties’ bargained-for agreement regarding allocation of risks and costs in the event of a breach or other failure of the contemplated transaction. Because of the egregiously wrongful nature of a willful and wanton breach of contract, however, enforcing a limitation of liability provision to shield a party from the consequences of such conduct is deemed to be contrary to public policy. Therefore, the division in Sonitrol I correctly ruled on this issue.

Sonitrol further contended that the district court erred on remand by refusing to allow Sonitrol’s expert witnesses to testify. Sonitrol could have foreseen that if it failed to detect a break-in at the warehouse, a burglar could start a fire. However, the jury should have been able to consider Sonitrol’s proffered expert testimony relating to whether Sonitrol could have foreseen that the fire set by Ottersberg would prove so calamitous due to the alleged code violations. Further, the proffered testimony supported Sonitrol’s theory that its conduct was not the cause of all the damages Core-Mark claimed. Becausethe experts’ testimony was relevant and admissible on the issue of damages and the error was not harmless, the district court abused its discretion by excluding Sonitrol’s experts’ testimony.

Sonitrol finally contended that the district court erred by ruling that it could not designate Ottersberg as a nonparty at fault. CRS § 13-21-111.5(3) permits apportionment of liability only to a nonparty at fault in a tort action. Therefore, the district court did not err in ruling that Sonitrol could not designate Ottersberg as a nonparty at fault under CRS § 13-21-111.5 in this breach of contract action.

Summary and full case available here.