Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Supreme Court considered whether a plaintiff’s direct negligence claims against an employer are subject to dismissal if the plaintiff doesn’t assert vicarious liability for the employee’s negligence. The court held that the direct negligence claims are not barred, even if the employer acknowledges vicarious liability and made the rule absolute.
Erica Brown went to Denver Center for Birth and Wellness to give birth, but her child died during labor. Brown and her husband sued DCBW for negligence and negligent hiring. The Browns also sued Shari Long Romero, a nurse-midwife employed by DCBW, for wrongful death, alleging she deviated from the expected standard of care. They didn’t assert vicarious liability against DCBW on the claim against Long Romero.
DCBW acknowledged vicarious liability by admitting Long Romero was its employee and was acting within the scope of her employment when treating Brown. DCBW then invoked the Colorado Supreme Court’s 2017 Ferrer v. Okbamicael decision to have the negligent hiring claim against it dismissed. In Ferrer, the court adopted the McHaffie Rule, which bars direct negligence claims against an employer who admits vicarious liability.
The trial court granted DCBW’s motion and dismissed the negligent hiring claim, even though the Browns had opted not to assert vicarious liability. The Browns filed a C.A.R. 21 petition asking the high court to determine whether the McHaffie Rule applies even if the plaintiff doesn’t assert vicarious liability for an employee’s negligence and asserts only direct negligence claims against the employer.
The Colorado Supreme Court held that a plaintiff’s direct negligence claims against an employer are not barred where the plaintiff doesn’t assert vicarious liability and vacated the trial court’s grant of partial judgment.
During the 2021 legislative session, the Colorado General Assembly passed a bill that reversed the high court’s holding in Ferrer. The Supreme Court issued its opinion to vacate the trial court’s grant of partial judgment but didn’t address broader arguments the parties raised about the scope of the now-repealed McHaffie Rule.
The Colorado Supreme Court reviewed a new test announced by a division of the Court of Appeals for entertaining new arguments and evidence on remand to resolve suppression-related issues. In a 5-2 decision, the high court ultimately rejected the Court of Appeals’ test as departing from the 2019 People v. Morehead decision.
In Morehead, the Colorado Supreme Court recognized that when a suppression ruling is reversed on appeal, the lower court has discretion on remand to entertain new evidence and arguments from either party to resolve remaining suppression-related issues. The Court of Appeals division applied Morehead when reviewing Joseph Tallent’s appeal to overturn his convictions for theft, burglary and other crimes and came up with a two-step, multi-factor test for trial courts to use when exercising that discretion.
The division’s test said that when presented with new arguments, a trial court must weigh three factors: whether allowing new arguments would unfairly prejudice one or more parties, whether the party proposing the new argument is at fault for failing to preserve it in an earlier proceeding and “any other factor [the court] deems relevant.” The court must apply these factors to determine whether prosecutors may advance new arguments on remand. If the trial court determines new arguments against suppression are proper on remand, it may rule on the substance of the new arguments.
The Supreme Court concluded the division’s test doesn’t comport with Morehead because nothing in that decision indicated or implied that a court must explicitly address factors such as unfair prejudice and preservation before entertaining a new argument. The Morehead decision also “repeatedly emphasized” the breadth of a trial court’s discretion, while “the division’s approach seeks to diminish it.” The high court also found the division erred in its attempts to harmonize Morehead with “previous decisions denying the prosecution ‘a second bite at the apple’” because those decisions are not pertinent in the context of Tallent’s case.
In its majority opinion, the Supreme Court reversed the Court of Appeals’ judgment and remanded for consideration of Tallent’s remaining arguments. Justice Richard Gabriel and Justice William Hood dissented.
In this domestic violence case, the Colorado Supreme Court considered how closely generalized expert testimony must “fit” a case to be admissible.
Kerry Cooper was found guilty of third-degree assault and harassment following a physical altercation with a woman he lived with. At Cooper’s trial, the jury heard testimony from Janet Kerr, a licensed counselor, who educated the jury about the dynamics of domestic violence and the “dynamic of power and control” in abusive intimate relationships. Kerr also testified about counterintuitive behaviors domestic violence victims often exhibit and the effects that cruelty toward pets and a large age gap — Cooper was in his 50s while the woman was in her mid-20s — can have on power and control dynamics in abusive relationships.
Cooper appealed his convictions, and a division of the Court of Appeals concluded that “virtually all” of Kerr’s expert testimony was “wholly irrelevant to the issues properly before the jury” and a new trial was necessary. The prosecution appealed and asked the Supreme Court to review the admissibility of the expert testimony.
Colorado has a four-part test for determining the admissibility of expert testimony under Colorado Rule of Evidence 702. First, the scientific principles underlying the testimony must be reasonably reliable. Second, the expert must be qualified to offer the testimony. The testimony must also be helpful to the jury. Finally, the evidence must satisfy CRE 403, which says relevant evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues or misleading the jury.
A majority of the Colorado Supreme Court concluded the Court of Appeals “applied an overly arduous fit standard that lacks pliability” and incorrectly determined that Kerr’s opinions didn’t fit the facts of the case. The majority clarified that the fit requirement “means that generalized expert testimony must have a sufficient logical connection to the facts of the case to be helpful to the jury while still clearing the ever-present CRE 403 bar.”
The majority added that prosecutors should take care to endorse generalized expert testimony only when appropriate, and trial courts should “consider the feasibility and propriety” of admitting only a portion of the proposed expert testimony.
Justices Richard Gabriel, William Hood and Melissa Hart dissented.
In this companion case to People v. Cooper, the Supreme Court held that generalized expert testimony fits a case if it has a sufficient logical connection to the factual issues to be helpful to the jury while clearing CRE 403’s admissibility bar. However, while the testimony must fit the case, “the fit need not be perfect.” Each aspect of the testimony need not match a factual issue, according to the majority, and the fit inquiry must be flexible.
Dylan Coons was convicted of sexual assault, extortion and assault, but a division of the Court of Appeals reversed the convictions, finding that some of the generalized expert testimony endorsed by the prosecution didn’t fit the case. In particular, the division found expert testimony about the “Power and Control Wheel,” a tool used to explain the dynamics of domestic violence, had no logical relation to the facts of the case and should have been excluded.
In a 4-3 decision, the Supreme Court repeated its conclusions from Cooper: Generalized expert testimony must have sufficient logical connection to the facts to be helpful to the jury and be admissible under CRE 403. Prosecutors should only endorse generalized expert testimony about domestic violence in appropriate cases and present only testimony that is logically connected to the facts. Trial courts should exercise discretion in deciding whether, and how much, testimony to permit.
“Inasmuch as the division mistakenly concluded that the trial court committed reversible error in allowing [the expert] to provide certain generalized expert testimony regarding domestic violence, we reverse,” the majority wrote, remanding the case for further proceedings. Justices Richard Gabriel, William Hood and Melissa Hart dissented.