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Stephenson-Licciardi v. Cooper

United States District Court, D. Colorado

May 1, 2019

PATRICE STEPHENSON-LICCIARDI, as legal representative of CHRISTIAN LICCIARDI, an individual, Plaintiff,
WILLIAM COOPER, an individual, STEVEN HAKE, an individual, CLAUD BAYS, an individual, and MICHAEL BONNET, an individual, Defendants.


          R. Brooke Jackson, United States District Judge.

         Plaintiff moves for a new trial (ECF No. 289), arguing that the clear weight of the evidence required a plaintiff's verdict, and that the Court should not have admitted evidence of a lawsuit plaintiff filed in California. ECF No. 289. The Court has reviewed the motion, the responses (ECF Nos. 296 and 297) and plaintiff's consolidated reply. ECF No. 301. The motion for a new trial is denied. Plaintiff also moves for a review of the Clerk's taxation of costs in favor of defendant Hake, essentially an objection to that award. The motion is granted to the extent that I have reviewed the award but otherwise is denied.


         This is a medical malpractice case filed on behalf of Christian Licciardi. Plaintiff claims that on November 2, 2015, when Christian was a student at Adams State University in Alamosa, Colorado, he went to the emergency room at the San Luis Valley Regional Medical Center with complaints of headache and nausea. This was followed by additional visits on November 3, 4, 8, 9, and 10-11 (when he was admitted to and discharged from the hospital). During those visits he was seen by one or more emergency room doctors, a neurologist, and a physician's assistant; CT and MRI scans were obtained; and radiologists, including a tele-radiologist, read and interpreted the scans. He was also seen by a nurse practitioner in another clinic, Valley-Wide Health Systems, Inc., on November 9, 16 and 19, 2015. The parties dispute whether Christian was suffering from uncomplicated sinusitis at that time or a more serious condition.

         Following his last visit to Valley-Wide Christian seemed to be doing better, and on November 25, 2015 he drove to California to visit his family during the Thanksgiving holiday. However, while in California he experienced severe symptoms that led to visits to the Loma Linda University Medical Center on November 27 and 29, 2015. During his second visit he was diagnosed with a life-threatening condition called a subdural empyema which required emergency brain surgery. Following that surgery Christian has been left with permanent brain damage and severe neurological deficits.

         Plaintiff's contention was that Christian developed complicated sinusitis in Colorado. This evolved while he was still in Colorado into one or two intracranial abscesses, but that his illness was misdiagnosed and mistreated. Plaintiff contended that an MRI with contrast should have been performed, and had that happened, his condition would have been detected and treated such that the catastrophic consequences he ultimately suffered would not have happened. Plaintiff further contended that his condition worsened in California and was, again, not initially diagnosed or treated properly. Essentially, plaintiff's claim is that Christian suffered from a continuum of sub-standard medical care that begin in Colorado and continued in California. Plaintiff, initially Christian but later his mother as his legal representative, wished to pursue one medical negligence case against all the health care professionals who provided substandard care, either in Colorado or California, but the defendants in the two states would not agree. Therefore, plaintiff filed separate lawsuits against the local defendants in each state.

         The Colorado defendants denied that Christian had an empyema or any other intracranial abscess in Colorado. They contended that he was properly diagnosed and treated for uncomplicated sinusitis and recovered. In California he became ill a second time, this time an illness that quickly developed into an intracranial abscess, and the craniotomy resulted.

         The Colorado case was tried to a jury September 10-14, 17-20, and 24-27, 2018. By that time the defendants had been reduced to five: Claud Bays, M.D., a hospitalist; Michael Bonnet, P.A., a physician's assistant; William Cooper, M.D., a neurologist; Steven Hake, M.D., a radiologist; and Kyle Phillips, a nurse practitioner. The plaintiff dropped her claim against Mr. Phillips near the end of the trial. Ultimately, the jury rendered its verdict in favor of all four remaining defendants. ECF No. 250 (verdict, juror names redacted). The Court entered its Final Judgment in favor of the defendants on October 1, 2018. ECF No. 252.

         The Final Judgment included an award of costs to the defendants as the prevailing parties, to be taxed by the Clerk pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1. Defendants Bays, Bonnet and Cooper collectively submitted a proposed bill of costs totaling $234, 412.82. ECF No. 255. The plaintiff and defendants Bays, Bonnet and Cooper stipulated to an award of costs to those defendants in the reduced amount of $80, 000. ECF No. 289. The Clerk taxed costs against the plaintiff and in favor of defendant Hake in the amount of $77, 730.07. ECF No. 304. Plaintiff has objected, arguing that costs cannot be taxed against a legal representative. ECF No. 305.


         “A district court has broad discretion in deciding whether to grant a motion for a new trial.” Harvey by & through Harvey v. Gen. Motors Corp., 873 F.2d 1343, 1346 (10th Cir.1989). However, it is the function of the jury, not the court, to resolve conflicts in the evidence. Veile v. Martinson, 258 F.3d 1180, 1190-91 (10th Cir. 2001). “If ‘a new trial motion asserts that the jury verdict is not supported by the evidence, the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence.'” M.D.Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 762 (10th Cir. 2009) (quoting Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir.1999) (internal quotation marks and citations in Anaeme omitted)). The burden of proof is on the moving party. Domann v. Vigil, 261 F.3d 980, 983 (10th Cir.2001). The Court considers the record evidence in the light most favorable to the nonmoving party. Anaeme, 164 F.3d at 1284.

         On timely motion, the district court may review the clerk's taxation of costs. Fed.R.Civ.P. (d)(1). The review is de novo. See In re Williams Securities Litigation-WCG Subclass, 558 F.3d 1144, 1147 (10th Cir. 2009).


         A. Motion for a New Trial - Weight of the Evidence.

         1. The issue.

         There can be no dispute that Christian Licciardi's ultimate outcome was tragic, and that he and his family suffered a horrendous loss. The issues were whether one or more of the defendants provided substandard care, and if so, ...

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