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Home My WebLink About2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 041 - Plaintiffs' Motion In Limine To Preclude Reference To Attorney- Referred Care 1 DISTRICT COURT, LARIMER COUNTY, STATE OF COLORADO Court Address: 201 Laporte Ave. Fort Collins, CO 80621 Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN v. Defendant: THE CITY OF FORT COLLINS, STATE OF COLORADO Court Use Only Attorneys for Plaintiffs: Laura Browne, # 46673 Ashley Fridovich, # 47538 WILHITE, ROSE, MCCLURE &, SAWAYA P.C. 1600 Ogden Street Denver, CO 80218 Phone Number: (303) 839-1650 FAX Number: (303) 832-7102 E-mail: lbrowne@sawayalaw.com afridovich@sawayalaw.com Case Number: 2020CV30363 Division: 5A PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE REFERENCE TO ATTORNEY-REFERRED CARE COME NOW the Plaintiffs, Stuward Cross and Katrina Richman, by and through their attorneys Wilhite, Rose, McClure & Sawaya, P.C. and hereby submit their Motion in Limine: To Preclude Reference to Attorney-Referred Care. Plaintiffs state for their Motion the following: RULE 121 CONFERRAL STATEMENT Counsel for Plaintiff conferred with counsel for Defendant prior to filing these Motions. Defendant opposes this Motion. DATE FILED: October 11, 2021 9:41 PM FILING ID: DA8F83C2EB94C CASE NUMBER: 2020CV30363 2 1. On June 7, 2017, Plaintiff Stuward Cross was operating a taxi cab with Plaintiff Katrina Richman as his front-seat passenger. Plaintiffs were struck by a dump truck operated by Mr. Antonio Lopez, now deceased. Mr. Lopez was on the job and in the course and scope of his employment for Defendant City of Fort Collins. Plaintiffs were injured in the motor vehicle incident and received medical treatment for their injuries. 2. In his deposition, counsel for Defendant City of Fort Collins asked Plaintiff Cross whether he recalled telling a medical provider that he went to a doctor because his attorney told him to. See Exhibit 1, Excerpt of Plaintiff Cross’s Deposition Transcript, p. 89, lines 14-16. 3. Upon the question of attorney-referred care, counsel for Plaintiff Cross objected. Plaintiff Cross denied being referred to care by his attorney. Id. at lines 19-24. 4. Counsel for Defendant is expected to attempt to introduce into evidence at trial that Plaintiffs were referred to medical care providers by their attorneys. 5. Such references are an improper invasion of the attorney-client privilege. Furthermore, the fact of any potential attorney-referred medical care is irrelevant to the matter. Finally, even if the evidence is relevant, the danger of unfair prejudice resulting from its reference at trial vastly outweighs any probative value it could have. 6. C.R.E. Rule 104 addresses questions of admissibility of evidence. These are often properly raised before trial as a matter of law, by a motion in limine. Good v.A.B. Chance, 565 P.2d 217, 221 (Colo.App. 1977); Uptain v. Huntington Labs, Inc., 723 P.2d 1322, 1329-1332 (Colo. 1986). Construction and/or application of law is for the Court to resolve. Walcott v. Total Petroleum, Inc., 964 P.2d 609, at 613[9] (Colo.App. 1998); Colo. Dept of Social Services v. Davis, 796 P.2d 494 (Colo.App. 1990). 3 7. Pursuant to C.R.E. 401 and 402, only relevant evidence is admissible. Irrelevant evidence is inadmissible. Even if evidence may be relevant, it may still be inadmissible if it would likely cause prejudice, confusion or a waste of time. C.R.E. 403. 8. Where the introduction of evidence would likely create undue prejudice, or cause bias against a party, or a decision suggests evidence is being sought for introduction for such purposes, it is required such evidence be excluded. People v. Warner, 251 P.3d 556, 563 (Colo. App. 2010); People v. Greenlee, 200 P.3d 363, 367 (Colo. 2009). 9. The attorney-client privilege in Colorado begins with C.R.S. §13-90-107(1)(b) which states: “An attorney shall not be examined without the consent of his client concerning any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney’s secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer, concerning any fact, the knowledge of which he has acquired in such capacity.” 10. In order for attorney-client privilege to exist, there must be: (1) the existence of a professional relationship, including the covered parties; (2) a communication made in the context of the relationship relating to the purpose of the relationship; (3) intent of confidentiality; and (4) absence of an exception to the privilege. 23 Colo. Prac., Evidence Law, §501:3. The attorney- client privilege has been found to be broader than the language: “[t]he attorney-client privilege not only precludes examination of a lawyer, but also prevents third-party access to any confidential matters communicated by or to the client in the course of gaining counsel, advice, or direction with respect to the client’s rights or obligations.” Metro Wastewater Reclamation Dist. V. Cont’l Class Co., 142 F.R.D. 471, 476 (D. Colo. 1992). 4 11. The question posed by counsel for Defendant in Plaintiff’s deposition sought discovery of one or more communications made in the context of an attorney-client relationship and related to the purpose of that relationship, i.e. pursuing a claim for damages arising out of a personal injury. 12. As Judge Ross Buchanan said in his Order ruling such evidence was not discoverable, much less admissible: “The choice of physicians or other healthcare providers for purposes of treating injuries sustained in events which give rise to personal injury lawsuits, including the specialties, expertise, availability, frequency of appointments, diagnoses and prognoses reached, and treatment results achieved, among many other issues, certainly go to the plaintiff’s rights or obligations in the lawsuit.” See Exhibit 2, Order of Judge Ross Buchanan, Denver District Court. 13. Any such communication was clearly intended to be confidential. Such evidence falls under the Colorado attorney-client privilege and any reference to it at trial would violate such privilege. 14. Evidence is admissible only if it tends to prove or disprove a fact of consequence. C.R.E. Rule 401. In the instant case, Defendant is disputing liability, causation and damages. The issues to be determined are limited to those. The fact of whether any of Plaintiffs’ medical treaters were referred by their attorney does not prove or disprove any fact and does not go to the issue of damages. 15. Regardless of how Plaintiffs found their treating providers, they incurred medical bills associated with their treatment which make up their economic damages in this matter. Even if the fact of attorney-referred care was relevant to this matter, which it clearly is not, any such fact is inadmissible if it would likely cause prejudice, confusion, or a waste of time. C.R.E. 5 403. The jury would likely be confused and mislead by any reference to attorney-referred care, and that confusion would prejudice Plaintiffs. WHEREFORE, Plaintiffs request that the Court GRANT their Motion in Limine to Preclude Reference to Attorney-Referred Care. DATED: October 11, 2021 Respectfully submitted, WILHITE, ROSE, MCCLURE & SAWAYA, P.C. /s/ Laura Browne Original Signature on File in Attorney’s Office Laura Browne, Attorney for Plaintiffs 6 CERTIFICATE OF SERVICE I certify that on October 11, 2021 this PLAINTIFFS’ MOTIONS IN LIMINE TO PRECLUDE REFERENCE TO ATTORNEY-REFERRED CARE was served on all parties via Colorado Court’s E-Filing to the following: Andrew W. Callahan, Esq. Julie M. Yates, Esq. WICK & TRAUTWEIN, LLC P.O. Box 2166 Fort Collins, CO 80522 Attorney for Defendant Adam Stephens, Esq. FORT COLLINS CITY ATTORNEY’S OFFICE P.O. Box 580 Fort Collins, CO 80522 Attorney for Defendant /s/ Kassandra Burival Original Signature on File in Attorney’s Office Kassandra Burival, Litigation Paralegal