Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01253-MSK-MJW

Document 76

Filed 11/07/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-01253-MFK-MJW RICHARD TEBO and RENEE TEBO Plaintiffs v. LAURA M. BAKOS and LEVTZOW LIMO LLC, doing business as MOUNTAIN LIMO DELUXE LLC Defendants. RESPONSE TO AMENDED MOTION IN LIMINE

Defendants, Laura M. Bakos and Levtzow Limo LLC, by and through their counsel of record, Dewhirst & Dolven, LLC, hereby respond to the Amended Motion in Limine filed by Plaintiff, Richard Tebo, as follows: 1. Defendants oppose the motion in limine with respect to the first issue,

regarding the failure to mitigate damages by failing to undergo corrective surgery. The law in Colorado is that a plaintiff is required to submit to reasonable treatment and to follow the advice of a competent physician. Intermill v. Heumesser, 391 P.2d 684, 686 (Colo. 1964). Plaintiff objects to the introduction of any evidence regarding the fact that surgery is available that likely would relieve Dr. Tebo of the pain that he suffers, on the grounds that he is not obligated to submit to surgery that involves "substantial hazards." Plaintiff asserts that there are substantial risks involved in the proposed surgery including anesthesia risks, infection and aggravation of the condition. introduced is to the contrary and should be admitted. The evidence to be

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2.

Defendants will seek to introduce evidence of Dr. Jeffrey Kleiner that

cervical spine surgery is available to Dr. Tebo that would relieve his condition. Dr. Kleiner would testify, based upon his 15 years of experience in the field of cervical spine surgery, and his conduct of 1000 of such surgeries in the past 10 years, that he believes that the surgery does not involve a substantial risk. Dr. Kleiner would testify that the risk related to anesthesia is about one in 40,000 and that in the past ten years he has had not one life-threatening situation develop from anesthesia. Dr. Kleiner also will testify that that in the past ten years he has had zero serious infection problems resulting from cervical spine surgery, zero serious hoarseness problems resulting from cervical spine surgery and two patients had significant bleeding problems. Dr. Kleiner had one patient die after being released from the hospital but did not attribute that death to the surgery. 3. In short, Dr. Kleiner would testify that the cervical spine surgery available

to Dr. Tebo does not pose a substantial risk of harm. (See the deposition transcript of Dr. Kleiner, p. 3, line 19--p. 7, line 12, attached hereto as Exhibit A.) Consequently, Defendants should be permitted to submit the expert testimony of Dr. Kleiner regarding the Plaintiff's ability to mitigate his damages. 4. With respect to the second and third issues that are the subject of the

motion in limine, the issue of seatbelt usage by Dr. Tebo and the other passengers of the van, Defendants concur that such evidence is not admissible under the current state of Colorado case law. Carlson v. Ferris, 58 P.3d 1055 (Colo. App. 2002). 5. With respect to the fourth issue raised by Plaintiff, the severity of the

injuries to the other passengers of the van, Defendants assert that the relative severity of the injuries of the other passengers may be relevant on the issue of Defendants'

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negligence. The extent to which the other passengers either were not injured or suffered only minor injuries speaks to the severity of the crash and to the care exercised by Defendant Bakos in handling the vehicle. 6. With respect to the fifth issue raised by Plaintiff, the availability of

liability insurance coverage for Defendants, Defendants concur that the introduction of such evidence would be improper and would likely be more prejudicial to Defendants than to Plaintiff. C.R.E. 411; Prudential Property & Cas. Ins. Co. v. District Court, 617 P.2d 556 (Colo. 1980). 7. Finally, with respect to the sixth issue, the availability of medical

insurance coverage to Dr. Tebo, Defendants concur that such evidence is irrelevant under the collateral source rule. C.R.S. § 13-21-111.6. WHEREFORE, Defendants respectfully request that the Plaintiff's motion in limine be denied as to the first and the fourth issues and agree that the motion should be granted as to the second, third, fifth and sixth issues. Respectfully submitted this 07th day of November 2005. DEWHIRST & DOLVEN, LLC s/ Patrick J. Maggio, Esq. Original signature on file at the office of Dewhirst & Dolven, LLC _______________________________ Miles M. Dewhirst, Esq. Patrick J. Maggio, Esq. 102 S. Tejon Street, Suite 500 Colorado Springs, CO 80903 Phone: (719) 520-1421; Fax (719) 520-1421 [email protected] [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on November 7, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: THE KERENSKY LAW FIRM Michael W. Kerensky, Esq. 5300 Memorial Drive, Suite 950 Houston, TX 77007 Phone: 713-522-8686; Fax: 713-522-6925 [email protected] ATTORNEYS FOR PLAINTIFFS (Paper copy mailed to Kerensky Law firm by Dewhirst & Dolven, LLC) BREIT BOSCH COPPOLA & MARLIN, P.C. William C. Marlin, Esq. Michael T. Leinz, Esq. 1512 Larimer St, Suite 900 Denver, Co 80202 Phone: (303) 573-7777; Fax: (303) 825-3950 [email protected] ATTORNEYS FOR PLAINTIFFS S/ Tonya Feigt ________________________ Tonya Feigt, Paralegal