James B. Chapman, M.D., Petitioner
Carolyn K. Harner, Respondent
Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 11CA2401.
In this case, the supreme court clarifies the proper allocation of the burden of proof under the doctrine of res ipsa loquitur. Specifically, the supreme court resolves the tension between its 56-year-old precedent in Weiss v. Axler, 137 Colo. 544, 559, 328 P.2d 88, 96-97 (1958), which held that the burden of proof shifts to the defendant once a plaintiff makes a prima facie showing of res ipsa loquitur, and the more recent adoption of CRE 301, which indicates that rebuttable presumptions such as res ipsa loquitur shift onto the defendant only the burden of production and not the burden of proof. After determining that this issue has remained unsettled since the adoption of CRE 301, the supreme court holds that that the burden of proof does not shift to the defendant under res ipsa loquitur.
For Petitioner: Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado.
For Respondent: Hutchinson Black and Cook, LLC, Baine P. Kerr, Keith M. Edwards, Boulder, Colorado.
For Amicus Curiae the Colorado Medical Society: Martin Conklin P.C., John L. Conklin, Jerome R. Geraghty, Denver, Colorado.
For Amicus Curiae HCA-HealthOne: Davis Graham & Stubbs LLP, Andrew M. Low, John M. Bowlin, Denver, Colorado.
For Amicus Curiae Colorado Defense Lawyers Association: Fennemore Craig, P.C., Troy R. Rackham, Maureen Weiland, Denver, Colorado.
For Amicus Curiae the Regents of the University of Colorado: Office of University Counsel, Patrick T. O'Rourke, Nike L. Fleming, Denver, Colorado.
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.
RICE, CHIEF JUSTICE.
[¶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. 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. 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 ...