COLORADO COURT OF APPEALS                                         2016COA91

Court of Appeals No. 14CA1259
City and County of Denver District Court No. 12CV2482
Honorable Herbert L. Stern, III, Judge


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.


                JUDGMENT AFFIRMED, ORDER REVERSED,
                 AND CASE REMANDED WITH DIRECTIONS

                                 Division III
                         Opinion by JUDGE BOORAS
                        Webb and J. Jones, JJ., concur

                          Announced June 16, 2016


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
¶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




                                   1
 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 imaging2 (MRI) and a magnetic resonance angiography3

 (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

 1 A computerized tomography is a medical imaging procedure that
 utilizes cross-sectional images for diagnostic purposes.
 2 Magnetic resonance imaging refers to a procedure by which

 doctors can view internal structures of the body in detail, including
 the brain.
 3 Magnetic resonance angiography refers to a method of imaging

 that allows a doctor to view blood vessels.

                                    2
  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.


                                      3
                       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.




                                     4
¶ 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


                                    5
              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



                                     6
  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.”


                                     7
¶ 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.




                                     8
¶ 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 [d]efense

  [c]ounsel’s conduct, which was calculated, deliberate, and

  knowingly improper, was so pervasive and prejudicial to undermine

  the integrity of the jury’s verdict.”

¶ 25   The trial court also denied Mr. Acierno’s motion for a new trial

  based on the alleged irregularities.




                                          9
              2.    Standard of Review and Applicable Law

¶ 26   A mistrial is a drastic remedy that is warranted only when the

  prejudice to the moving party cannot be addressed by other means.

  Wark v. McClellan, 68 P.3d 574, 578 (Colo. App. 2003).

¶ 27   A C.R.C.P. 59(d)(1) motion for a new trial may be granted when

  “[a]ny irregularity in the proceedings . . . prevented [the moving

  party] from having a fair trial.”

¶ 28   Trial courts are in the best position to evaluate the prejudicial

  impact of misconduct by opposing counsel, see Antolovich v. Brown

  Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007), and of any

  irregularities at trial, see First Nat’l Bank v. Campbell, 198 Colo.

  344, 346, 599 P.2d 915, 917 (1979) (“Whether or not a new trial is

  granted is usually a matter for the sound discretion of the trial

  judge whose presence and observation at the trial better equip him

  for making this decision.”). Accordingly, we review for an abuse of

  discretion the trial court’s denial of Mr. Acierno’s motions for a

  mistrial and a new trial. Antolovich, 183 P.3d at 608; Wark, 68 P.3d

  at 578. A trial court abuses its discretion only if its decision was

  manifestly arbitrary, unreasonable, or unfair, or based on an




                                      10
  erroneous understanding or application of the law. See, e.g., Core-

  Mark Midcontinent Inc. v. Sonitrol Corp., 2016 COA 22, ¶ 28.

                             3.   Discussion

                        a.   Motion for a Mistrial

¶ 29   Mr. Acierno asserts that defense counsel’s (1) misstatement of

  the trial court’s jury instruction on the applicable standard of care

  and (2) improper comments related to “runaway juries, runaway

  verdicts, and adverse media” warranted a mistrial.

¶ 30   Although we agree with the trial court that this case presents

  “an extremely close call,” under the circumstances, we cannot

  conclude that the trial court abused its discretion in denying Mr.

  Acierno’s motion.

¶ 31   First, the trial court gave Mr. Acierno’s motion for a mistrial

  careful consideration. See id. (a trial court abuses its discretion

  when its decision is manifestly arbitrary, unreasonable, or unfair).

  Mr. Acierno raised his motion orally after defense counsel finished

  his closing argument. The trial court took the motion under

  advisement, and Mr. Acierno later filed a written motion, to which

  defense counsel filed a response. The court then held a post-trial

  hearing solely on the issue of whether a mistrial was warranted.


                                    11
  Both parties were given an opportunity to present argument and

  answer the trial court’s questions related to the parties’ filings.

  Thus, based on the procedural posture in which the trial court

  reached its decision, it is evident that the court carefully considered

  Mr. Acierno’s motion for a mistrial. In other words, its decision was

  not arbitrary. See id.

¶ 32     Second, with respect to defense counsel’s misstatement of the

  standard of care instruction, we agree, for the following reasons,

  that a mistrial was unnecessary. See Wark, 68 P.3d at 578.

        Before closing arguments, the trial court instructed the jury

         (1) on the complete version of the standard of care and (2) that

         arguments of counsel are not evidence. As the trial court

         noted, absent evidence to the contrary, we presume that the

         jury followed those instructions. Qwest Servs. Corp. v. Blood,

         252 P.3d 1071, 1088 (Colo. 2011).

        Although the trial court later concluded that it should have

         sustained the objection to the incomplete instruction, when

         the objection was made, the court noted that the jury had, and

         could read, a complete version of the standard of care

         instruction. See id.

                                     12
        After defense counsel presented the incomplete standard of

         care instruction, he referred to the testimony of Mr. Acierno’s

         neurology experts.

        During the recess after defense counsel’s closing argument,

         the trial court told Mr. Acierno’s counsel that he was free to

         direct the jury’s attention to defense counsel’s incomplete

         representation of the standard of care instruction. Mr.

         Acierno’s counsel did so. Specifically, in rebuttal closing, he

         told the jury that defense counsel “misrepresented the law”

         and then read the complete instruction to the jury highlighting

         the portion that had been omitted by defense counsel. See

         Wark, 68 P.3d at 578 (the drastic remedy of a mistrial is

         warranted only where the prejudice to the moving party

         cannot be remedied by alternative measures).

¶ 33     Third, with respect to defense counsel’s statements in closing

  argument, we similarly conclude that a mistrial was not warranted

  because the trial court’s remedial actions, along with its

  instructions to the jury, were sufficient to address any prejudice to

  Mr. Acierno. See id.




                                      13
¶ 34   Indeed, the trial court sustained Mr. Acierno’s counsel’s

  objection to defense counsel’s improper remarks. It then

  admonished defense counsel in front of the jury, twice, telling the

  jury it was to “completely and utterly disregard” defense counsel’s

  remarks because they were “inappropriate and d[id] not belong in

  this type of a proceeding.” See Cook Inv. Co. v. Seven-Eleven Coffee

  Shop, Inc., 841 P.2d 333, 335 (Colo. App. 1992) (trial court did not

  abuse its discretion in denying a motion for a mistrial where “an

  immediate curative instruction” was given).

¶ 35   We acknowledge that during the recess that followed defense

  counsel’s closing argument, the trial court agreed that it was “not

  sure” that its previous admonishment and instruction were

  sufficient to cure the prejudice stemming from defense counsel’s

  improper remarks. But after the recess, the trial court again

  admonished defense counsel in front of the jury, and instructed the

  jury that it was to disregard counsel’s statements. See id. And

  there is nothing in the record that rebuts the presumption that the

  jury followed the trial court’s instructions. See Qwest, 252 P.3d at

  1088.




                                   14
¶ 36   However, Mr. Acierno contends that the trial court’s curative

  instructions were insufficient because they did not identify the

  specific remarks that the jury was instructed to disregard. We are

  not persuaded.

¶ 37   As Mr. Acierno’s counsel argued below, and has asserted in

  this appeal, the jury reacted strongly to defense counsel’s improper

  remarks and he made an immediate objection. Accordingly, we

  cannot conclude that the jury would have been unable to identify

  the improper comments the trial court instructed it to disregard.

¶ 38   Mr. Acierno also cites four out-of-state cases for the

  proposition that defense counsel’s improper comments warranted a

  mistrial. See Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla.

  Dist. Ct. App. 1996); Boren v. BOC Grp., Inc., 895 N.E.2d 53 (Ill.

  App. Ct. 2008); Lioce v. Cohen, 174 P.3d 970 (Nev. 2008); Boyle v.

  Christensen, 251 P.3d 810 (Utah 2011). However, in each of those

  cases, the attorneys’ improper remarks were much more pervasive

  than defense counsel’s statements in this case. See, e.g., Lioce, 174

  P.3d at 974-78 (defense counsel made the same improper closing

  argument in four related cases, which he refined “over time”).

  Moreover, in three out of four of those cases, no admonition or


                                    15
  curative instruction was given by the trial courts. See Norman, 668

  So. 2d at 1021-224; Lioce, 174 P.3d at 974-78; Boyle, 251 P.3d at

  813. And in Boren, the appellate court was reviewing a trial court’s

  decision to grant a new trial, so that case is procedurally inapposite.

  895 N.E.2d at 59-60. Accordingly, all four cases are

  distinguishable; Mr. Acierno’s reliance on them is therefore

  misplaced.

¶ 39   To be clear, we do not condone defense counsel’s misconduct.

  In the end, however, as the trial court described it, this was “an

  extremely close call.” Had we been in the trial court’s position, we

  might have reached a different result. But that is not grounds for

  reversing the trial court’s discretionary decision. To the contrary,

  deference to the trial court’s decision is important because it was in

  the best position to evaluate the prejudicial impact of defense

  counsel’s misconduct in the context of the entire trial. See

  Antolovich, 183 P.3d at 604.



  4 In addition to the improper argument basis, the appellate court
  also reversed based on “improper contact” during trial between an
  agent of defendant’s insurer and his brother, who was the foreman
  of the jury. Norman v. Gloria Farms, Inc., 668 So. 2d 1016, 1018-19
  (Fla. Dist. Ct. App. 1996).

                                    16
                        b.   Motion for a New Trial

¶ 40     We have concluded that the trial court did not abuse its

  discretion in denying Mr. Acierno’s motion for a mistrial based on

  defense counsel’s (1) misstatement of the standard of care

  instruction and (2) improper remarks to the jury. For the same

  reasons, we conclude that the trial court did not abuse its

  discretion in denying Mr. Acierno’s request for a new trial on those

  grounds.

¶ 41     The remaining question, then, is whether the other alleged

  irregularities, in addition to defense counsel’s misconduct, required

  a new trial. For the following reasons, we conclude that they did

  not.

¶ 42     First, Mr. Acierno contends that a new trial was required

  because two witnesses gave testimony that differed from their

  testimony in prior depositions. Mr. Acierno asserts that he

  preserved this argument by (1) objecting to the changed testimony

  and (2) filing a motion objecting to defendant’s request to meet ex

  parte with one of Mr. Acierno’s treating physicians. We disagree.

  Mr. Acierno’s counsel made no objection when he elicited the

  alleged changed testimony from the two witnesses. And his earlier


                                    17
  motion objecting to the requested ex parte meeting would not have

  alerted the trial court to his argument that one of these witnesses

  had changed his testimony, purportedly as a result of the meeting.

¶ 43   Accordingly, the trial court did not err in denying Mr. Acierno’s

  motion for a new trial on the basis of changed witness testimony

  because that argument was not preserved by a contemporaneous

  objection. See Mahan v. Capitol Hill Internal Med. P.C., 151 P.3d

  685, 689 (Colo. App. 2006) (“Capitol Hill’s counsel did not object to

  this statement at trial. Therefore, the objection was waived, and the

  trial court’s denial of the motion for a new trial based on the

  statement of counsel was not error.”), superseded by statute as

  recognized in Carruthers v. Carrier Access Corp., 251 P.3d 1199

  (Colo. App. 2010); see also Antolovich, 183 P.3d at 608 (the

  plaintiffs did not “offer[] a contemporaneous objection to” alleged

  “changed witness testimony”; “[a]ccordingly, their claims of surprise

  and irregularity are waived, and we will not address them on

  appeal”).

¶ 44   In any event, even if we assume that Mr. Acierno’s counsel

  preserved this issue, as the trial court noted, changes in witnesses’

  testimony “are not unusual,” Mr. Acierno’s counsel “impeached


                                    18
  [those] witnesses,” and it was “the jury’s role to determine

  credibility.” In other words, even if we assume the witnesses

  changed their testimony, such changed testimony did not constitute

  an irregularity that was sufficiently prejudicial to warrant a new

  trial. See First Nat’l Bank, 198 Colo. at 346, 599 P.2d at 916-17

  (trial judges’ “presence and observation at . . . trial better equip[s]”

  them for evaluating whether a party was “prevented from having a

  fair trial”) (citations omitted).

¶ 45    Second, Mr. Acierno contends that a defense witness violated

  the trial court’s sequestration order. But the trial court found that

  the witness “stated credibly that he and his attorney were

  discussing house remodeling and the weather” and that Mr. Acierno

  did not “present additional evidence” in connection with his request

  for a new trial. In our view, the trial court made a factual finding

  that its sequestration order was not violated. Cf. People v.

  Melendez, 102 P.3d 315, 319 (Colo. 2004) (“In proper

  circumstances, the trial court may sequester witnesses, find that a

  witness has violated the sequestration order, and impose sanctions

  for the sequestration violation.”) (emphasis added). And Mr.

  Acierno has not pointed to anything in the record establishing that


                                      19
  the court’s finding was clearly erroneous. See Legro v. Robinson,

  2015 COA 183, ¶ 15 (the court of appeals will not disturb a trial

  court’s finding of fact unless it is clearly erroneous). Accordingly,

  the trial court did not err in denying Mr. Acierno’s motion for a new

  trial.

¶ 46       Lastly, Mr. Acierno contends that a new trial was warranted

  because a juror slept through important portions of trial. As with

  the claims of changed testimony, however, Mr. Acierno raised this

  issue for the first time in his motion for a new trial. Thus, the trial

  court did not err in denying the motion on that basis. See Mahan,

  151 P.3d at 689.

¶ 47       Nonetheless, we note that the trial court found that Mr.

  Acierno failed to present sufficient evidence “to show that [the juror]

  missed crucial parts of the trial.” And again, Mr. Acierno has not

  cited anything in the record to show that the trial court’s finding

  was clearly erroneous. See Legro, ¶ 15. Mr. Acierno’s background

  section contains a subheading titled “A [j]uror sleeps through

  critical portions of the evidence.” But in the statements of fact that

  follow, Mr. Acierno fails to allege that the juror actually slept during




                                       20
  trial, let alone cite to portions of trial transcript supporting such an

  assertion.

¶ 48   In sum, we conclude that, under the circumstances, the trial

  court did not abuse its discretion in denying Mr. Acierno’s motion

  for a new trial.5

                           B.   Ex Parte Meeting

¶ 49   Mr. Acierno contends that the trial court erred when it allowed

  defense counsel to meet ex parte with the radiologist who

  interpreted Mr. Acierno’s MRI and MRA results. We are not

  persuaded.

               1.     Standard of Review and Applicable Law

¶ 50   We review rulings on issues of pre-trial discovery for an abuse

  of discretion. See Reutter v. Weber, 179 P.3d 977, 984 (Colo. 2007).

  A trial court abuses its discretion if its ruling was manifestly

  arbitrary, unreasonable, or unfair, “or based on an erroneous

  understanding or application of the law.” Core-Mark, ¶ 28.




  5To the extent Mr. Acierno contends, in his reply, that the trial
  court’s decision to allow defense counsel to meet ex parte with Mr.
  Acierno’s radiologist provided a basis for granting a new trial, we do
  not address arguments raised for the first time in a reply brief. See
  Rogers v. Forest City Stapleton, Inc., 2015 COA 167M, ¶ 38.

                                     21
¶ 51   Under Colorado law, communications between patients and

  their physicians are generally privileged. Reutter, 179 P.3d at 980.

  However, the General Assembly has provided a statutory exception

  to that general rule: the “privilege does not apply to a medical

  provider ‘who was in consultation with a physician, surgeon, or

  registered professional nurse being sued . . . on the case out of

  which said suit arises.’” Id. at 981 (quoting § 13-90-107(1)(d)(II),

  C.R.S. 2015) (emphasis in original).

¶ 52   Where the statutory exception to the patient-physician

  privilege applies, a trial court may grant a party’s request to meet

  with a treating physician ex parte. See id. at 980. By “permitting

  informal communications between a defense attorney and a

  plaintiff’s treating physician,” the discovery process is promoted “by

  assuring that both parties have access to an informal, efficient, and

  cost-effective method for discovering facts relevant to the

  proceedings.” Samms v. Dist. Court, 908 P.2d 520, 526

  (Colo. 1995).

¶ 53   Nevertheless, under some circumstances, trial courts should

  take appropriate measures to protect against the disclosure of

  residually privileged information, i.e., “medical information about


                                    22
  [the patient] that was unrelated to the course of treatment . . .

  forming the basis of the malpractice action.” Reutter, 179 P.3d at

  980. “Where the risk that residually privileged information will be

  divulged during an interview is relatively high, the preferred method

  of protecting against divulgement is to provide the plaintiff-patient

  with prior notice and an opportunity to attend the interview.” Id. at

  983. However, where a “trial court determines that the non-party

  medical providers possess no residually privileged information, the

  trial court does not abuse its discretion by refusing to require that

  the plaintiff be permitted to attend the interviews.” Id. at 980.

                             2.    Discussion

¶ 54   In his response objecting to Dr. Garyfallou’s motion to meet ex

  parte with the radiologist, Mr. Acierno asserted that there was “a

  significant risk of disclosure of [Mr. Acierno]’s residually privileged

  health information.” Mr. Acierno did not, however, identify any

  information that should have been protected against disclosure.

  Accordingly, the trial court found that “the risk of [the witness]

  divulging residually privileged information is not sufficiently high

  enough to entitle [p]laintiff[] to attend the informal ex parte meeting

  [d]efendants seek.” Even so, the trial court granted the motion with


                                     23
  the following condition: “Defendants’ informal questioning is

  confined to matters that are not subject to physician-patient

  privilege[.]”

¶ 55    On appeal, Mr. Acierno does not assert that residually

  privileged information was divulged.

¶ 56    Accordingly, the trial court did not abuse its discretion in

  allowing defense counsel to meet ex parte with Mr. Acierno’s

  radiologist. See id. at 982 (a trial court may allow plaintiff’s counsel

  to attend a defendant’s interviews “with non-party medical

  providers where the risk is high that residually privileged

  information will be divulged”) (emphasis added).

¶ 57    Nevertheless, Mr. Acierno argues that the trial court should

  have placed additional limitations on the informal, ex parte meeting

  to prevent defense counsel from unduly influencing the radiologist’s

  testimony. We disagree.

¶ 58    Even if we assume that undue influence is a proper basis for

  placing limitations on a party’s request to meet ex parte with a non-

  party treating physician, Mr. Acierno has not cited anything in the

  record evidencing such influence. Instead, Mr. Acierno would have

  us infer undue influence from (1) the fact that the radiologist gave


                                     24
  testimony at trial that differed slightly from his testimony in a

  deposition and (2) defense counsel’s misconduct in closing

  argument.

¶ 59   With respect to the changed testimony, Mr. Acierno asserts

  that he was “sandbagged” when the radiologist testified at trial that

  he received a telephone call from Dr. Garyfallou while Mr. Acierno

  was in the MRI machine exhibiting symptoms of a stroke or seizure.

  The record does not support Mr. Acierno’s assertion because, as Dr.

  Garyfallou points out, the radiologist’s trial testimony was generally

  consistent with his testimony in the deposition: “I don’t remember a

  lot of detail, but I remember that when we talked either during or

  after the MRI, he — the patient was having some difficulty during

  his MRI.” (Emphasis added.)

¶ 60   In any event, as the trial court noted in its denial of Mr.

  Acierno’s motion for a new trial, to the extent there may have been

  inconsistencies between the trial and deposition testimony, Mr.

  Acierno was free to impeach the radiologist on that basis.

                          C.   Pro Rata Liability

¶ 61   Mr. Acierno contends that the trial court erred in denying his

  motion for a directed verdict on Dr. Garyfallou’s affirmative defense


                                    25
  of pro rata liability. Specifically, he asserts that a directed verdict

  should have been granted because defense counsel’s statement in

  closing argument — that Dr. Garyfallou was “not blaming any of the

  settling [d]efendants” — constituted a judicial admission

  disclaiming pro rata liability. We disagree.

¶ 62   “A judicial admission is a formal, deliberate declaration which

  a party or his attorney makes in a judicial proceeding for the

  purpose of dispensing with proof of formal matters or of facts about

  which there is no real dispute.” Kempter v. Hurd, 713 P.2d 1274,

  1279 (Colo. 1986).

¶ 63   Although a party can make a judicial admission in closing

  argument, there is no evidence in this case that defense counsel’s

  statement was deliberate and made with the intent of “dispensing

  with proof” on the issue of pro rata liability. See id. Indeed, it

  would have made little sense to do so because pro rata liability was

  an affirmative defense asserted by Dr. Garyfallou. Thus, read in

  context, defense counsel’s statement was more likely intended to

  rebut Mr. Acierno’s counsel’s statement in closing argument that

  Dr. Garyfallou was blaming the other physicians who had

  previously settled.


                                     26
¶ 64   In any event, the jury concluded that Dr. Garyfallou did not

  breach the applicable standard of care. Accordingly, any error with

  respect to the trial court’s denial of Mr. Acierno’s motion for

  directed verdict on pro rata liability was harmless because such an

  error related only to apportionment of damages.6 See Leaf v.

  Beihoffer, 2014 COA 117, ¶ 12 (“If a plaintiff fails to establish any

  one of [the negligence] elements, any errors related to other

  elements are necessarily harmless because the plaintiff cannot

  prevail in any event.”).




  6 Citing Paris v. Dance, 194 P.3d 404, 406-07 (Colo. App. 2008),
  superseded by statute as stated in Reid v. Berkowitz, 2013 COA
  110M, Mr. Acierno argues that the alleged error was not harmless.
  In Paris, the jury concluded that (1) while the plaintiff had injuries;
  (2) one set of defendants “was [not] at fault”; and (3) although the
  other defendant “was negligent, it did not cause any of [the]
  plaintiff’s injuries.” Id. at 406. Thus, because the jury did not fill
  out the special verdict form apportioning damages, the Paris
  division could not conclude that an error was harmless with respect
  to the designation of the non-party. In this case, however, the jury
  concluded that Dr. Garyfallou did not breach the applicable
  standard of care, so any error with respect to apportionment of
  damages — and evidence introduced in support thereof — was
  harmless. See Leaf v. Beihoffer, 2014 COA 117, ¶ 12. Accordingly,
  Mr. Acierno’s reliance on Paris is misplaced.

                                    27
                          D.   Cumulative Error

¶ 65    Relying on the doctrine of cumulative error, Mr. Acierno

  contends that we should reverse the judgment in favor of Dr.

  Garyfallou and remand for a new trial.

¶ 66    The doctrine of cumulative error, although applied regularly in

  criminal appeals, has not been extended to civil cases. See Neher v.

  Neher, 2015 COA 103, ¶ 66. Like the Neher division, we decline to

  apply it here because “[s]uch a significant expansion of

  precedent . . . is more properly the province of our supreme court.”

  Id.

¶ 67    Nevertheless, we have rejected each of Mr. Acierno’s

  contentions of error. So even if we assume that the doctrine of

  cumulative error should be extended to civil cases, it would not

  provide a basis for reversal in this case.

                III.     Dr. Garyfallou’s Cross-Appeal

¶ 68    Dr. Garyfallou contends that the trial court erred when it

  denied his motion seeking an award of costs against Mr. Acierno.

  He argues that such an award was mandatory under section

  13-16-105. We agree.




                                     28
                       A.   Additional Background

¶ 69   Dr. Garyfallou moved for an award of $165,232.82 in costs.

  He argued that he was entitled to recover his costs under section

  13-16-105 because the jury had returned a verdict against Mr.

  Acierno.

¶ 70   Mr. Acierno objected to Dr. Garyfallou’s motion. He contended

  that (1) an award of costs would be unreasonable under the

  circumstances because he was indigent and (2) the amount of costs

  sought was unreasonable. Mr. Acierno’s legal guardians filed an

  accompanying affidavit to support Mr. Acierno’s claim of indigence

  and the unreasonableness of any award.

¶ 71   The trial court denied Dr. Garyfallou’s request for costs, noting

  that (1) Mr. Acierno has “locked-in syndrome” meaning he will be

  “reliant, 24/7, on caregivers for his daily needs”; (2) Mr. Acierno

  “will never be able to earn an income”; and (3) any award of costs

  would be against Mr. Acierno personally. The court also observed

  that although Mr. Acierno had reached settlements with other

  defendants, that money had been placed in a trust “to provide for

  [p]laintiff’s medical needs and daily care,” and “[p]laintiff needs

  every dollar of [the money in the trust] for his survival.”


                                     29
              B.   Standard of Review and Applicable Law

¶ 72   “Whether a statute mandates an award of costs or attorney

  fees is a question of statutory interpretation and is thus a question

  of law we review de novo.” Crandall v. City & Cty. of Denver, 238

  P.3d 659, 661 (Colo. 2010).

¶ 73   Our goal in interpreting a statute is to ascertain and give effect

  to the intent of the General Assembly. Id. To do so, we first look to

  the plain language of the statute at issue, “giving words and

  phrases their commonly accepted and understood meaning.” Id. at

  662 (quoting Colo. Dep’t of Revenue v. Garner, 66 P.3d 106, 109

  (Colo. 2003)). If the language is clear and unambiguous, our

  analysis ends. But if the language is ambiguous, we resort to other

  evidence and rules of statutory construction. Id.

                            C.    Discussion

¶ 74   Section 13-16-105 provides:

            If any person sues in any court of record in
            this state in any action wherein the plaintiff or
            demandant might have costs in case judgment
            is given for him and he is nonprossed, suffers
            a discontinuance, is nonsuited after
            appearance of the defendant, or a verdict is
            passed against him, then the defendant shall
            have judgment to recover his costs against the
            plaintiff, except against executors or


                                    30
             administrators prosecuting in the right of their
             testator or intestate, or demandant, to be
             taxed; and the same shall be recovered of the
             plaintiff or demandant, by like process as the
             plaintiff or demandant might have had against
             the defendant, in case judgment has been
             given for the plaintiff or demandant.

  (Emphasis added.)

¶ 75   Based on the plain language of section 13-16-105, we

  conclude that an award of costs to a defendant is mandatory when

  (1) the plaintiff would be entitled to costs if “judgment [had been]

  given for him” and (2) judgment is entered in favor of the defendant.

¶ 76   First, section 13-16-105 states that a defendant “shall have

  judgment to recover his costs.” (Emphasis added.) Ordinarily,

  “[t]he word ‘shall’ connotes a mandatory requirement.” Willhite v.

  Rodriguez-Cera, 2012 CO 29, ¶ 17. And nothing in section

  13-16-105 provides a reason for departing from the usual

  construction of the word “shall.” See Crandall, 238 P.3d at 663

  (“The statutory language contains no words that suggest anything

  other than a mandatory award.”); compare, e.g., § 13-16-105

  (defendant “shall have judgment to recover his costs), with

  § 13-16-114, C.R.S. 2015 (“[I]n all other cases in equity not




                                    31
  otherwise directed by law, it is in the discretion of the court to

  award costs or not.”).

¶ 77   Second, the supreme court and other divisions of this court

  have construed similar statutory sections as mandating an award of

  costs. Most recently, in Crandall, the supreme court considered

  whether an award of costs is mandatory under section

  13-16-113(2), C.R.S. 2015. 238 P.3d at 662-63. This section

  provides that “[i]n all actions brought as a result of a death or an

  injury to person or property occasioned by the tort of any other

  person, where any such action is dismissed prior to trial under rule

  12(b) of the Colorado rules of civil procedure, the defendant shall

  have judgment for his costs.” § 13-16-113(2) (emphasis added).

  Based on the plain language of the statute, the court concluded

  that section 13-16-113(2) “unequivocally mandate[s] an award of

  costs . . . to a defendant when it prevails on a pre-trial C.R.C.P.

  12(b) motion to dismiss.” Crandall, 238 P.3d at 663.

¶ 78   Similarly, in National Canada Corp. v. Dikeou, 868 P.2d 1131,

  1139 (Colo. App. 1993), the division concluded that section

  13-16-104, C.R.S. 2015, mandates an award of costs to a plaintiff

  when he or she recovers “debt or damages in an action.”


                                     32
  Significantly, section 13-16-104 contains language very similar to

  the language in 13-16-105: “the plaintiff or demandant shall have

  judgment to recover against the defendant his costs to be taxed.”

  Compare § 13-16-104, with § 13-16-105. Moreover, section

  13-16-104 is the counterpart to section 13-16-105 — the former

  specifies when plaintiffs are entitled to recover costs whereas the

  latter sets out the circumstances under which defendants are

  entitled to costs.

¶ 79   Despite this mandatory language, Mr. Acierno argues that trial

  courts have “virtually unlimited discretion with respect to whether

  to award costs to a prevailing party.” In support, he cites to a

  number of decisions from divisions of this court, including

  Valentine v. Mountain States Mutual Casualty Co., 252 P.3d 1182,

  1187 (Colo. App. 2011). Specifically, Mr. Acierno relies (as did the

  trial court) on the Valentine division’s statement that “[a]bsent a

  prohibition in a statute or rule, the district court has considerable

  discretion in determining whether to award costs and what amount

  to award.” Id.

¶ 80   Both Mr. Acierno’s and the trial court’s reliance on Valentine is

  misplaced. The Valentine division’s statement — that trial courts


                                    33
  have “considerable discretion in determining whether to award

  costs and what amount to award” — refers to a court’s discretion in

  deciding whether or not to award a party’s request for a particular

  cost in a particular amount. Id. Valentine and the other cases cited

  by Mr. Acierno do not stand for the proposition that a trial court

  has broad discretion, under section 13-16-105, to completely deny

  a prevailing defendant’s request for costs.

¶ 81   Nonetheless, Mr. Acierno contends that a prior version of

  C.R.C.P. 54(d) — the version that was in effect when the court

  denied Dr. Garyfallou’s motion for costs — vested courts with

  discretion to deny a prevailing defendant’s request for costs on the

  basis of the plaintiff’s indigency.7 However, the prior version of

  C.R.C.P. 54(d) provided that “[e]xcept when express provision

  therefor is made . . . in a statute . . . costs shall be allowed as of

  course to the prevailing party unless the court otherwise directs.”

  (Emphasis added.) And, as we have concluded above, section

  13-16-105 expressly mandates an award of costs to a prevailing

  7The language Mr. Acierno relies on — “unless the court otherwise
  directs” — was deleted from C.R.C.P. 54(d) by amendment in 2015.
  However, the amended version of C.R.C.P. 54(d) did not take effect
  until July 1, 2015, and the trial court ruled on Dr. Garyfallou’s
  motion for costs in September 2014.

                                      34
  defendant. Accordingly, the discretionary language in C.R.C.P.

  54(d) was inapplicable. See Nat’l Can. Corp., 868 P.2d at 1139

  (“[B]ecause express provision is made in a statute, see § 13–16–104,

  and since that statute requires that costs be assessed, C.R.C.P.

  54(d) is inapplicable to the extent that it makes the awarding of

  costs discretionary.”).

¶ 82   In this case, Mr. Acierno would have been entitled to costs had

  he prevailed at trial. Thus, an award of costs to Dr. Garyfallou is

  mandatory under section 13-16-105. We therefore remand this

  case to the trial court to enter an award of costs to Dr. Garyfallou.

  In determining an appropriate award, the trial court shall exercise

  its considerable discretion in determining which costs to award and

  what amounts are reasonable.

                            IV.   Conclusion

¶ 83   The judgment is affirmed, the order denying costs is reversed,

  and the case is remanded to the trial court with directions.

       JUDGE WEBB and JUDGE J. JONES concur.




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