United States District Court, D. Colorado
BEYER LASER CENTER, LLC, and CRAIG F. BEYER, Plaintiffs/Counterclaim Defendants,
MATEJ POLOMSKY, Defendant/Counter Claimant.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Matej Polomsky asks me to certify three questions to the
Colorado Supreme Court regarding the statutory immunity
provision contained in the Colorado Medical Practice Act
(“CMPA”): (1) whether the court or a jury should
decide the applicability of immunity, (2) whether the
immunity provision creates a rebuttable presumption of good
faith, and (3) whether entitlement to immunity includes the
right to recover fees and costs. I determined the first two
issues when ruling on Dr. Polomsky's Motion to Dismiss
and Motion for Summary Judgment. For three reasons, I find
that certification to the Colorado Supreme Court is not
Dr. Polomsky did not seek to certify these questions in his
Motion to Dismiss, Motion for Summary Judgment, or Motion for
Reconsideration. Instead, Dr. Polomsky argued the merits of
the issues. Requesting certification after the district court
issues a ruling adverse to your position does not further the
efficient use of judicial resources. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 77 (1997)
(stating that certification procedures are designed so that
“a federal court may save ‘time, energy, and
resources . . . .'” (quoting Lehman Bros. v.
Schein, 416 U.S. 386, 391 (1974))).
although certainly important to the litigants in this case, I
am not persuaded that the questions Dr. Polomsky seeks to
certify have broad applicability and importance to Colorado
law. The questions seek resolution of legal issues underlying
an immunity for filing ethics complaints against physicians
in good faith. These issues are not necessarily dispositive
of an individual's entitlement to immunity; thus, it is
difficult to see how the issues significantly affect Colorado
law and policy. Under the broad scheme of Colorado law,
questions such as whether the jury may determine immunity and
whether a rebuttable presumption in favor of immunity exists
are not so important that they require immediate resolution
by Colorado's highest court.
Dr. Polomsky has not made a sufficient showing-in his first
three motions raising the issues or in the present
motion-that the Colorado Supreme Court would likely interpret
the immunity as one from suit, which requires resolution by
the court. As I stated in my Order on Dr. Polomsky's
Motion for Reconsideration, the statute explicitly provides
that “[a]ny person participating in good faith in the
making of a complaint or report or participating in any
investigative or administrative proceeding pursuant to this
section shall be immune from any liability, civil or
criminal, that otherwise might result by reason of such
participation.” Colo. Rev. Stat. § 12-36-118(3)(b)
(West 2018) (emphasis added). The Colorado General Assembly
certainly knows how to provide immunity from suit when it
wishes to do so. See Colo. Rev. Stat. §
12-42.5-206 (West 2018) (“Any member of the board
acting pursuant to this part 2 is immune from suit in any
civil action if the member acted in good faith within the
scope of the function of the board . . . .”); Colo.
Rev. Stat. § 22-12-104(1) (West 2018) (“An
educational entity and its employees are immune from suit for
taking an action regarding the supervision, grading,
suspension, expulsion, or discipline of a student.”);
Colo. Rev. Stat. § 19-3.3-104 (West 2018) (“The
ombudsman and employees or persons acting on behalf of the
office are immune from suit and liability, either personally
or in their official capacities, for any claim for damage to
or loss of property, or for personal injury or other civil
liability . . . .”). “[T]he use of different
terms signals an intent on the part of the General Assembly
to afford those terms different meanings.” Robinson
v. Colo. State Lottery Div., 179 P.3d 998, 1010 (Colo.
Polomsky's discussion of Air Wisconsin Airlines Corp.
v. Hoeper, 320 P.3d 830 (Colo. 2012) does not change my
analysis. In that case, the Colorado Supreme Court applied
precedent applicable to federal immunities, because it was
tasked with interpreting a federal statute that provides
immunity to air carriers who disclose suspicious behavior.
Air Wisconsin Airlines Corp., 320 P.3d at 836-37,
overruled on other grounds by 134 S.Ct. 852 (2014).
Furthermore, in determining that the immunity was from suit,
the Colorado Supreme Court relied heavily on the fact that
the purpose of the provision was to “avoid air piracy
and other threats to national security, without fear of
consequences.” Id. at 837. Here, Dr. Polomsky
has not identified a purpose similar to national security
that would provide a basis for interpreting the statute
contrary to its plain meaning.
I find that certifying Dr. Polomsky's proposed issues to
the Colorado Supreme Court is not appropriate. Because I have
already determined two of the issues on which Dr. Polomsky
seeks certification, permitting the Supreme Court to resolve
the questions would not save significant judicial resources.
Furthermore, I do not find that the issues are of great
importance to Colorado law, and I am not convinced of the
likelihood that the Colorado Supreme Court would decide the
issues differently. Accordingly, Dr. Polomsky's Motion to
Certify to the Colorado Supreme Court Unresolved Questions
Regarding the Immunity Provision of the Colorado Medical
Practice Act Pursuant to Colo.App. 21.1 [filed April 2,
2018; ECF No. 89] is denied.
 Similarly, as I have stated in my
previous orders, the Colorado General Assembly explicitly
provides a presumption in favor of immunity when it wants to
do so. Colo. Rev. Stat. § 19-2-508(7) (West 2018)
(“For purposes of any proceedings, civil or criminal,
the good faith of any such person is
 If Dr. Polomsky truly believes this
provision creates immunity from suit, which is lost if the
case proceeds to a jury determination, he may attempt an
interlocutory appeal to the Tenth Circuit. See Aspen
Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp.
Dist., 353 F.3d 832, 837 (10th Cir. 2003) (stating that
the federal appellate courts “have subject matter
jurisdiction to hear ‘appeals of orders denying motions
to dismiss where the motions are based on ...