                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 17 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MICHAEL J. STICKNEY and
    DENISE E. STICKNEY,

                Plaintiffs-Appellees,

    v.                                                   No. 00-1356
                                                     (D.C. No. 98-B-2128)
    ARTHUR L. DICK, M.D., individually                     (D. Colo.)
    and doing business as Arthur L. Dick,
    M.D., Inc.; HIGH COUNTRY
    UROLOGY and ARTHUR L. DICK,
    M.D., INC.,

                Defendants-Appellants.


                            ORDER AND JUDGMENT            *




Before EBEL , PORFILIO , and KELLY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      In this diversity case, Michael J. Stickney and his wife Denise E. Stickney

sued Arthur L. Dick, M.D. for medical malpractice arising out of a vasectomy.

Following a four-day trial, the jury found in favor of the Stickneys, awarding

Michael $662,830 in damages for past and future economic losses, noneconomic

harm, and physical impairment. Additionally, the jury awarded Denise $50,000

for loss of consortium. This appeal followed. We exercise jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

      Because the parties are well-versed in the underlying facts, we forego

their recitation unless necessary for the issue on review. On appeal, Dr. Dick

makes three arguments concerning the propriety of the physical impairment

damage award. He contends that the district court erred in (1) refusing to include

the physical impairment award within the $250,000 cap for noneconomic damages

established by Colo. Rev. Stat. § 13-64-302 (2001), a provision of the Colorado

Health Care Availability Act; (2) submitting the issue of physical impairment

damages to the jury; and (3) providing the jury with a damages instruction which

led to a duplicative physical impairment award.

      The Colorado Supreme Court has recently addressed similar arguments. In

the case of Preston v. Dupont , No. 00SC492, 2001 WL 1402551 (Colo. Nov. 13,

2001), that court held that the $250,000 cap on noneconomic damages does not

limit damages for physical impairment and that a jury in a medical malpractice


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action may be instructed to award a separate category of damages for physical

impairment. Id. at *1, *9.   1
                                 In a diversity case, “the duty rests upon federal courts

to apply state law . . . in accordance with the then controlling decision of the

highest state court.”   Vandenbark v. Owens-Illinois Glass Co      ., 311 U.S. 538, 543

(1941). The Colorado Supreme Court’s holdings dispose of Dr. Dick’s first two

arguments concerning the physical impairment award.

       Moreover, we have reviewed the district court’s Instruction No. 19, relating

to the jury’s damage determination. We conclude that, Instruction No. 19, when

taken together with the remaining instructions, accurately informed the jury of the

law and cautioned against an award of duplicate damages.         See United States v.

Cerrato-Reyes , 176 F.3d 1253, 1262 (10th Cir. 1999) (stating that “[w]e review

the district court’s decision to give a particular jury instruction for abuse of

discretion and consider the instructions as a whole de novo to determine whether

they accurately informed the jury of the governing law”). We find no abuse of

discretion in the district court’s giving of Instruction No. 19.

       Dr. Dick asserts three other claims of error, unrelated to the physical

impairment award. First, he maintains that the district court erred in submitting

the case to the jury because the evidence was insufficient to show that his actions


1
       Because the issues were parallel, we formally abated this case awaiting the
Colorado Supreme Court’s ruling in   Preston. That case having been decided, this
case is reactivated.

                                             -3-
were the proximate cause of Mr. Stickney’s injuries. “Proximate cause is a

factual question in Colorado unless the facts are undisputed and reasonable minds

can draw only one conclusion from them.”          Berg v. United States , 806 F.2d 978,

981 (10th Cir. 1986). The expert testimony in this case is adequate to support

a conclusion that Dr. Dick’s negligence was the proximate cause of

Mr. Stickney’s injuries. Consequently, there was no error in submitting the

causation issue to the jury.

       Finally, Dr. Dick claims that the district court erred in refusing to give

several proposed jury instructions, concerning the absence of a guarantee of

a cure, the lack of a presumption that a bad medical result is evidence of

negligence, and contributory negligence on the part of Mr. Stickney. We review

a district court’s decision not to give requested jury instructions for an abuse of

discretion, but review the instructions as a whole      de novo to determine whether

they correctly and adequately stated the governing law.       Powers v. MJB

Acquisition Corp ., 184 F.3d 1147, 1152 (10th Cir. 1999). After a review of the

record in this case, we see no abuse of discretion in the district court’s refusal to

give the proposed instructions.




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The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Paul J. Kelly, Jr.
                                          Circuit Judge




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