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                                                         ADVANCE SHEET HEADNOTE
                                                                  September 24, 2018

                                        2018 CO 80

No. 16SC676, Estate of Daniel Brookoff, M.D., v. Clark — Statutory Interpretation —
Dead Man’s Statute.

       In this case, the supreme court interprets Colorado’s Dead Man’s Statute in light

of recent amendments that removed language limiting the statute’s applicability to

matters in which a decedent’s estate was a party. Discerning no ambiguity in the current

version of the statute, the court holds that these amendments expanded the scope of the

statute such that it now applicable “in all civil actions.” The court also holds that because

the statute applies irrespective of the potential impact of a judgment on an estate, the

existence of insurance coverage is not a factor militating for or against the applicability

of the Dead Man’s Statute.
                   The Supreme Court of the State of Colorado
                   2 East 14th Avenue • Denver, Colorado 80203

                                      2018 CO 80

                        Supreme Court Case No. 16SC676
                      Certiorari to the Colorado Court of Appeals
                       Court of Appeals Case No. 14CA1131

                                      Petitioner:

                            Estate of Daniel Brookoff, M.D.,

                                           v.

                                     Respondent:

                                   Alexander Clark.

                                 Judgment Reversed
                                       en banc
                                  September 24, 2018


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

JUSTICE HART delivered the Opinion of the Court.

                                           1
¶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

                                              I.

¶2       Alexander Clark brought the underlying medical malpractice lawsuit against the

estate of his late pain management specialist, Dr. Daniel Brookoff. Clark claims that




1   We granted certiorari to review the following issues:
         1. Whether the court of appeals erred in holding that Colorado’s Dead
            Man’s Statute, section 13-90-102, C.R.S. (2016), which applies in “any
            civil action,” in fact applies only in cases involving the potential
            diminishment of an estate.
         2. Whether the court of appeals erred in holding that the Dead Man’s
            Statute does not apply where insurance coverage may be available to
            satisfy a potential judgment.

                                              2
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




2The statute in effect in 2016 is identical to the current version, which reads, in pertinent
part, as follows:
              (1) Subject to the law of evidence, in any civil action or proceeding in which
                  an oral statement of a person incapable of testifying is sought to be
                  admitted into evidence, each party and person in interest with a party
                  shall be allowed to testify regarding the oral statement if:
                 (a) The statement was made under oath at a time when such person was
                     competent to testify;
                 (b) The testimony concerning the oral statement is corroborated by
                     material evidence of a trustworthy nature;
                 (c) The opposing party introduces uncorroborated evidence of related
                     communications through a party or person in interest with a party;
                     or
                 (d) Such party or person testifies against his or her own interests.
                                                    ...
              (3) For purposes of this section:
                                                    ...
                 (b) “Person incapable of testifying” means any decedent or any person
                 who is otherwise not competent to testify.

                                             3
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.

                                             II.

¶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.,

                                              4
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

recognized that we may not write special limitations into a statute as “[t]hat is a function

of the legislature and not the courts.” Packard, 519 P.2d at 1222.

                                             III.

¶7     A little history may be helpful here. Prior to enactment of the Dead Man’s Statute,

Colorado common law prohibited a party to an action from testifying on his or her own

behalf in any manner in a court proceeding. See Glover v. Innis, 252 P.3d 1204, 1210

(Colo. App. 2011).     The Dead Man’s Statute replaced that absolute bar, permitting

                                              5
testimony by interested persons except in specific instances provided by the statute. Id.

Among other things, the legislature retained the prohibition on self-serving and

uncorroborated testimony from a party about statements allegedly made by a person

who is not capable of responding to that testimony with his or her own recollections.

¶8     The Dead Man’s Statute thus shares the same objective as the common law rule it

supplanted, namely, to protect against perjury by parties who “might slant their

testimony in their own favor if they were permitted to testify about a transaction or event,

without fear of contradiction by the deceased.” Id. (citing Herbert E. Tucker, Colorado

Dead Man’s Statute: Time for Repeal or Reform?, 29 Colo. Law. 45, 45 (Jan. 2000)); see

also Breeden v. Stone, 992 P.2d 1167, 1175 (Colo. 2000) (identifying the broad purpose of

the Dead Man’s Statute as guarding “against perjury by living interested witnesses when

deceased persons cannot refute the testimony”); Wise v. Hillman, 625 P.2d 364, 366 (Colo.

1981) (stating that the Dead Man’s Statute’s “purpose is to promote equal justice between

the parties at trial by excluding evidence which might otherwise be relevant . . . to place

parties on an equal footing”) (quoting Berger v. Coon, Colo., 606 P.2d 68, 69 (Colo. 1980).

In other words, the rule is a prophylactic measure designed to prevent perjury and foil

false claims.

¶9     For many decades, the Dead Man’s Statute was exclusively applicable in matters

in which a decedent’s estate was a party. See, e.g., C. 177, § 2 C.S.A. (1935) (stating that

the rule applied “when any adverse party sues or defends as . . . the executor or

administrator, heir, legatee or devisee of any deceased person”); § 13-90-102(1), C.R.S.

(2001) (limiting application of the rule to an action in which “any adverse party sues or

                                             6
defends as . . . the executor or administrator, heir, legatee, or devisee of any deceased

person”).

¶10    In 2002, the General Assembly amended the statute, removing the language that

limited its application to suits involving executors and administrators of estates. As

modified, the Dead Man’s Statute applied to “any civil action by or against a person

incapable of testifying.” See Ch. 13, sec. 1, § 13-90-102(1), 2002 Colo. Sess. Laws 31, 31-32.

In 2013, the General Assembly once again amended the statute, striking yet another

limitation: namely, that the civil action must be one “by or against a person incapable of

testifying.”   See Ch. 190, sec. 1, § 13-90-102(1), 2013 Colo. Sess. Laws 766, 766-67.

Therefore, since 2013, the Dead Man’s Statute has been applicable “in any civil action.”

§ 13-90-102(1), C.R.S. (2018). Nothing in the current statute limits this broad language or

suggests that the law is in fact intended to apply only in a subsection of civil

proceedings. See id.

¶11    Given this lack of ambiguity, we decline Clark’s invitation to look beyond the plain

language of section 102(1) to discern the scope of its applicability, and we disagree with

the court of appeals’ decision to impose limitations recently removed by the legislature.

¶12    The mistake that the court of appeals appears to have made in limiting the

application of the Dead Man’s Statute was in relying on case law interpreting a pre-

amendment version of the law. In particular, the court relied on In re Estate of Crenshaw,

which held that “[t]he dead man’s statute has been construed as providing protection for

the benefit of an estate; consequently, where the result of a proceeding can neither

increase nor diminish the estate, the statute is inapplicable.” 100 P.3d 568, 570 (Colo.

                                              7
App. 2004). But Crenshaw was interpreting a prior version of the Dead Man’s Statute

that applied only to claims involving estates. Id. at 569; see also § 13-90-102, C.R.S. (2001)

(“No party to any civil action . . . shall be allowed to testify . . . when any adverse party

sues or defends as . . . the executor or administrator . . . of any deceased person . . . .”).

¶13    In concluding that the Dead Man’s Statute does not apply when insurance covers

liability and there is no real risk of diminishment of the estate, the court of appeals

assumed that Crenshaw’s limitation was still good law. But to apply the Crenshaw rule

to the post-2013 version of the statute is to resurrect a limitation that was removed by the

General Assembly. It was therefore error for the court of appeals to extrapolate from

Crenshaw a so-called “insurance exception” to the Dead Man’s Statute.                  Such an

exception finds no footing in the statutory language before us or anywhere else in

Colorado law. We cannot ignore the deletion of language limiting the applicability of the

Dead Man’s Statute to a subset of civil actions, and we find no reason to doubt that the

legislature’s action was knowing and intentional. See Packard, 519 P.2d at 1222; In re

Bourquin’s Estate, 269 P. at 905.

                                              IV.

¶14    We hold that the Dead Man’s Statute is applicable “in all civil actions.” Because

the statute applies irrespective of the potential impact of a judgment on an estate, we also

hold that the existence of insurance coverage is not a factor militating for or against the

applicability of the Dead Man’s Statute. We therefore reverse the decision of the court of

appeals.



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