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Estate of Brookoff v. Clark

Supreme Court of Colorado, En Banc

September 24, 2018

Estate of Daniel Brookoff, M.D., Petitioner:
Alexander Clark Respondent:

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA1131

          Attorneys for Petitioner: Davis Graham & Stubbs LLP Shannon Wells Stevenson Denver, Colorado

          Attorneys for Respondent: Avery Law Firm James W. Avery Denver, Colorado

          Attorneys for Amici Curiae Colorado Defense Lawyers Association and Colorado Civil Justice League: Sweetbaum Sands Anderson PC Marilyn S. Chappell Denver, Colorado


          HART JUSTICE

         ¶1 Colorado's "Dead Man's Statute" has served since 1870 to prevent a party in a case from offering self-serving uncorroborated testimony about statements made by a person who cannot come into court and confirm or rebut that testimony. The statute has been amended many times over the years, most recently in 2002 and 2013. These recent amendments expanded the scope of the Dead Man's Statute, removing language that limited its application to only certain types of cases. Today, self-serving testimony from a party about what a now-deceased person allegedly once said is permitted "in any civil action" only when specific, statutorily-prescribed conditions are met. Because the language of the statute is clear, we reverse the contrary decision of the court of appeals. In so doing, we reject the "insurance exception" employed by the court of appeals to allow an interested person to provide uncorroborated testimony regarding oral statements made by a deceased person.[1]


         ¶2 Alexander Clark brought the underlying medical malpractice lawsuit against the estate of his late pain management specialist, Dr. Daniel Brookoff. Clark claims that Dr. Brookoff negligently prescribed a prolonged course of ketamine to alleviate Clark's chronic pain and that Dr. Brookoff did not adequately inform his patient (then a minor) of the risks associated with the drug. Clark claims that his consumption of ketamine caused neurological and urological damage.

         ¶3 Prior to trial, Clark indicated that he intended to present testimony about conversations he and his mother had with Dr. Brookoff prior to and during treatment. The Estate responded by filing a motion to exclude such evidence in accordance with Colorado's Dead Man's Statute, section 13-90-102, C.R.S. (2018).[2] The trial court agreed that the anticipated testimony was inadmissible. The court found that Clark was a "party" and his mother was a "person in interest with a party," and that none of the statutory provisions that would permit testimony about what Dr. Brookoff had said before or during treatment were satisfied as to either person. Unable to introduce that testimony, Clark abandoned his informed consent claim, and the case proceeded to trial on his negligence claim. After judgment was entered in favor of the Estate, Clark appealed the order prohibiting him or his mother from testifying about their conversations with Dr. Brookoff.

         ¶4 The court of appeals reversed the trial court's decision to bar this testimony and remanded the case for a new trial on Mr. Clark's informed consent claim. Clark v. Estate of Brookoff, No. 14CA1131 (Colo.App. Aug. 4, 2016) (not published pursuant to C.A.R. 35(f)). In so doing, the appellate division relied on case law predating the 2002 and 2013 amendments to the Dead Man's Statute to conclude that, despite its current language, the statute is not applicable "in any civil action" but only when the outcome of a proceeding will increase or diminish an estate. Id. at 3. Because Dr. Brookoff had an insurance policy, the court of appeals asserted that any liability would be covered by insurance and thus would not diminish his estate. The court therefore declined to apply the Dead Man's Statute. Following denial of its petition for rehearing, the Estate petitioned for certiorari. We granted the petition.


         ¶5 We review issues of statutory interpretation, such as those presented here, de novo. See Vallagio at Inverness Residential Condo. Ass'n, Inc. v. Metro. Homes, Inc., 2017 CO 69, ¶16, 395 P.3d 788, 792. When interpreting a statute, we must give full effect to the intent of the legislature. Aetna Cas. & Surety Co. v. McMichael, 906 P.2d 92, 97 (Colo. 1995); see also § 2-4-201, C.R.S. (2018). It is our duty to interpret statutory terms in accordance with their plain and ordinary meaning. Aetna Cas. & Surety Co., 906 P.2d at 97. In so doing, we look first to the language of the statute. See Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). If the statutory language is clear and unambiguous, we apply it as written-venturing no further. See Vallagio, ¶16, 395 P.3d at 792.

         ¶6 When we interpret a statute that has been amended, we presume the statutory amendment reflects the legislature's intent to change the law. See Darby v. All J Land & Rental Co., 821 P.2d 297, 298 (Colo. 1991). Moreover, just as this court is "not at liberty to carve out an exception" that is absent from a statute, it is similarly impermissible for us to re-insert language of limitation stricken by the General Assembly. Packard v. Packard, 519 P.2d 1221, 1222 (Colo.App. 1974); see also In re Bourquin's Estate, 269 P. 903, 904 (Colo. 1928) (rejecting an argument that would require the court "to add an important qualification or exception to the statute which we have no right to do"). We have long ...

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