Martin Acierno, by and through his Co-Guardians, Kathleen Acierno and Cheryl Acierno, Plaintiff-Appellant and Cross-Appellee,
Garyfallos Garyfallou, M.D., Defendant-Appellee and Cross-Appellant.
and County of Denver District Court No. 12CV2482 Honorable
Herbert L. Stern, III, Judge
Leventhal & Puga, P.C., Jim Leventhal, Hollynd Hoskins,
David P. Masons, Benjamin I. Sachs, Denver, Colorado, for
Plaintiff-Appellant and Cross-Appellee
Hershey Decker, PLLC, C. Todd Drake, Lone Tree, Colorado, for
Defendant-Appellee and Cross-Appellant
1 Plaintiff, Martin Acierno, by and through his co-guardians,
Kathleen Acierno and Cheryl Acierno, appeals the trial
court's judgment entered on a jury verdict in favor of
defendant, Garyfallos Garyfallou, M.D. (Dr. Garyfallou). The
trial court's judgment is affirmed.
2 Dr. Garyfallou cross-appeals the trial court's order
denying, in its entirety, his motion for costs. He contends
that under section 13-16-105, C.R.S. 2015, an award of costs
to a prevailing defendant is mandatory. We agree and
therefore reverse the trial court's order denying Dr.
Garyfallou's request for costs.
3 In 2010, Mr. Acierno was transported by ambulance to St.
Anthony's North hospital with complaints of slurred
speech and numbness in his left arm.
4 When Mr. Acierno arrived at the hospital, he was examined
by Dr. Garyfallou, an emergency room physician. By that time,
many of Mr. Acierno's symptoms had dissipated. However,
because Mr. Acierno had suffered an earlier stroke, Dr.
Garyfallou ordered a computerized tomography (CT)
scan. When the CT scan showed no signs of a
brain bleed, Dr. Garyfallou admitted Mr. Acierno to St.
Anthony's North and diagnosed him with a transient
ischemic attack. Dr. Garyfallou then sent Mr. Acierno for a
magnetic resonance imaging (MRI) and a magnetic resonance
5 While he was in the MRI machine, Mr. Acierno exhibited
rhythmic-like movement, intermittent left arm movement, and
involuntary eye movement. The nurse who was performing the
MRI called Dr. Garyfallou to examine Mr. Acierno. Dr.
Garyfallou concluded that Mr. Acierno had most likely had a
seizure, so he ordered seizure medicine.
6 A radiologist interpreted the MRI and MRA images. He gave
Dr. Garyfallou his opinion that the MRI showed "some
atheroma, which is cholesterol, debris, chronic stuff in the
blood vessels, and/or thrombus, which is a clot." By
that time, Dr. Garyfallou's shift had ended, so he passed
off Mr. Acierno's care to another physician.
7 Shortly thereafter, Mr. Acierno was transferred to the
primary stroke center at St. Anthony's Central hospital
for a stroke assessment.
8 There, a neurologist diagnosed Mr. Acierno with a brainstem
stroke. The stroke resulted in severe brain damage: Mr.
Acierno now has quadriplegia and "locked in"
syndrome, meaning that although he is cognitively intact, it
is unlikely that he will regain any meaningful ability to
move his body.
9 Mr. Acierno filed a medical malpractice suit against Dr.
Garyfallou, his other treating physicians, and both
hospitals. With respect to Dr. Garyfallou, Mr. Acierno
alleged negligence in failing to diagnose a stroke that he
had suffered before Dr. Garyfallou left the hospital.
10 With the exception of Dr. Garyfallou, all defendants
settled. The case then proceeded with a jury trial on Mr.
Acierno's negligence claims against Dr. Garyfallou. The
jury returned a verdict in favor of Dr. Garyfallou, finding
that he had not been negligent.
Motions for a Mistrial and a New Trial
11 Mr. Acierno contends that the trial court erred when it
denied his motions (1) for a mistrial based on defense
counsel's misconduct in closing argument and (2) for a
new trial based on that same misconduct and other
irregularities at trial. We discern no abuse of discretion.
12 Before closing argument, Mr. Acierno tendered the
following jury instruction on the applicable standard of
To determine whether such a physician's conduct was
negligent, you must compare that conduct with what a
physician having and using the knowledge and skill of
physicians practicing in the same specialty or holding
themselves out as having the same special skill and
knowledge, at the same time, would or would not have
done under the same or similar circumstances.
(Emphasis added.) Defense counsel objected to the inclusion
of the emphasized portion of the instruction. The trial court
overruled the objection and approved Mr. Acierno's
proposed standard of care instruction.
13 During closing argument, defense counsel used a PowerPoint
slide that omitted the portion of the standard of care
instruction to which he had previously objected. Mr.
Acierno's counsel objected to the slide on the basis that
it was a misstatement of the applicable standard of care. The
trial court responded, "The jury has the instructions.
[It] can review them." Defense counsel then made the
following argument: "Who is the expert of the same
specialty that came in and told you about the standard of
care in this case? That's Dr. Rosenberg. That's Dr.
Burcham. That's Dr. Hoffman. All emergency room
14 Defense counsel ended his closing argument as follows:
[Mr. Acierno's counsel] has also argued that Dr.
Garyfallou's blaming people. The only people you heard
that blamed anybody in this case came from the
plaintiff's side of the case. Dr. Futrell and Dr. Jones
blamed every one of those defendants that settled, and they
blamed Dr. Garyfallou. And [Mr. Acierno's counsel], who
retained those experts, blamed every one of those doctors who
There are reasons that physicians settle cases that don't
have anything to do with the standard of care. . . . Dr.
Garyfallou has courage, conviction, and confidence. The
courage to stand up before you and say my care was good.
Conviction that his care was appropriate. And confidence that
you as jurors will see that. Confidence that these other
reasons for settling cases, runaway verdicts, runaway juries,
media related to adverse care, will not cloud your
15 Mr. Acierno's counsel objected, arguing that defense
counsel's comments were "completely
inappropriate." The trial court sustained the objection,
stating that the comments were "completely and utterly
inappropriate, appealing to the passions and prejudices of
the jury." It added that it was "shocked" by
16 The trial court then asked Mr. Acierno's counsel if he
wanted the court to consider a motion for a mistrial. Mr.
Acierno's counsel responded that he did, and the trial
court said that it would take the motion under consideration.
17 The court then admonished defense counsel in front of the
jury: "Jurors, there was an objection to [defense
counsel's] last comments, that objection was sustained.
Those comments are to be utterly and completely disregarded
by you. They were inappropriate and do not belong in this
type of a proceeding."
18 During a recess before rebuttal closing argument, Mr.
Acierno's counsel made an additional record in regard to
his motion for a mistrial. He argued that defense
counsel's (1) improper argument and (2) misstatement of
the standard of care instruction warranted a mistrial. Mr.
Acierno's counsel contended that the trial court's
previous instruction and admonition were insufficient to cure
the prejudice stemming from defense counsel's improper
19 With respect to the improper comments, the trial court
said that it was "not sure" that its previous
admonition and instruction had been sufficient. Regarding the
standard of care instruction, the trial court concluded that
defense counsel had presented an "incomplete"
version of the instruction, but that Mr. Acierno's
counsel could "point that out on his own."
20 After the recess, the trial court, on its own initiative,
addressed the jury: "Jurors, I apologize for the
longer-than-anticipated break. I feel that I have no choice
but to reiterate to you that certain of those comments,
certain of the statements that I cautioned you against
earlier by [defense counsel] were, in my view, beyond
inappropriate and we've been discussing that." It
again instructed the jury that the improper comments were
"to be completely and utterly disregarded."
21 During rebuttal closing, Mr. Acierno's counsel argued,
When [defense counsel] got up and told you and [represented
the standard of care instruction], he had retyped the
instruction and misrepresented the law to you. You have a
copy of it.
The second paragraph, 'To determine whether a
physician's conduct was negligent, you must compare that
conduct with what a physician having and using the knowledge
and skill of physicians practicing in the same specialty'
and that's where he stopped, but our job is not to stop,
our job is to make sure you have the law, 'or holding
themselves out as having the same special skill and
knowledge, at the same time, would or would not have done
under the same or similar circumstances.'
22 After trial, Mr. Acierno filed a written motion for a
mistrial alleging defense counsel's misconduct. He also
filed a motion for a new trial, under C.R.C.P. 59(d). In it,
he reasserted his arguments related to his motion for a
mistrial. He also argued that a number of irregularities had
prevented him from receiving a fair trial. Specifically, Mr.
Acierno contended that (1) witnesses gave testimony at trial
that differed from their deposition testimony; (2) a defense
witness violated the trial court's sequestration order;
and (3) a juror slept during trial and was generally
23 The trial court later held a hearing on Mr. Acierno's
motion for a mistrial, at which both parties offered
extensive argument as to whether the court should grant the
24 Ultimately, the trial court denied Mr. Acierno's
motion for a mistrial. In doing so, the court concluded that
it should have sustained Mr. Acierno's counsel's
objection to defense counsel's misstatement of the
applicable standard of care. And it observed that defense
counsel's "use of an abbreviated [s]tandard of
[c]are [i]nstruction was careless and/or a deliberate attempt
at jury nullification given his earlier objection to the
Court's approved instruction." But the trial court
noted that it "must presume that the jury followed the
jury instructions and the verbal corrective instructions
presented by the Court." It continued,
"[t]herefore, while an extremely close call, the Court
cannot find that ...