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Acierno v. Garyfallou

Court of Appeals of Colorado, Third Division

June 16, 2016

Martin Acierno, by and through his Co-Guardians, Kathleen Acierno and Cheryl Acierno, Plaintiff-Appellant and Cross-Appellee,
v.
Garyfallos Garyfallou, M.D., Defendant-Appellee and Cross-Appellant.

         City 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

          OPINION

          BOORAS JUDGE

         ¶ 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.

         I. Background

         ¶ 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.[1] 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[2] (MRI) and a magnetic resonance angiography[3] (MRA).

         ¶ 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.

         II. Mr. Acierno's Appeal

         A. 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.

         1. Additional Background

         ¶ 12 Before closing argument, Mr. Acierno tendered the following jury instruction on the applicable standard of care:

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 physicians."

         ¶ 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 settled.
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 judgment[.]

         ¶ 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 the argument.

         ¶ 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 comments.

         ¶ 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 inattentive.

         ¶ 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 motion.

         ¶ 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 ...


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