COLORADO COURT OF APPEALS

101 West Colfax Ave., Suite 800

Denver, CO 80202

COURT USE ONLY

Appeal from the Trial Court:

DISTRICT COURT, MORGAN COUNTY,

COLORADO

400 Warner Street

Ft. Morgan, CO 80701

Trial Court Judge: Vannoy, Douglas R

Trial Court Case Number: 2010CV166

Plaintiff-Appellants: ASYE BEKIROVA and

YUNUZ SULEYMAN

v.

Defendant-Appellee: DORIS ANDERSON as

Personal Representative of the Estate of MERVIN

ANDERSON

Case Number: 2011CA2558

Attorneys for Defendant-Appellee

Wendelyn K. Walberg, #13056

Matthew A. Holmes, Esq.#20849

Kristin A. Allan, Esq. #36808

WALBERG, TUCKER & HOLMES, P.C.

Quebec Centre II, Suite 300

7400 East Caley Avenue

Centennial, CO 80111-6714

Phone: (303) 694-9300

Fax: (303) 694-9370

Email: wkw@wth-law.net, mah@wth-law.net,

kaa@wth-law.net

ANSWER BRIEF

EFILED Document CO Court of Appeals 11CA2558 Filing Date: Aug 17 2012 03:05PM MDT Transaction ID: 45972528 

 

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R.

32, including all of the formatting requirements set forth in these rules. The brief is 9,

476 words and therefore complies with C.A.R. 28(g).

By: _______________________

Kristin A. Allan

ii

TABLE OF CONTENTS

I. STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Course of Proceedings and Disposition Below . . . . . . . . . . . . . . . . 2

III. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

V. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. Pro Se Plaintiffs Must Follow the Same Rules of

Civil Procedure and Rules of Evidence as Licenced

Practitioners. Plaintiffs Underlying Plea for Leniency is

Contrary to Established Colorado Law. . . . . . . . . . . . . . . . . . . . . 16

B. Plaintiffs Did Not Object to the Omission of an

Economic Damages Jury Instruction; Did Not Offer

French’s Testimony or Claim Admissibility of Their

Medical Records Under a Residual Exception to the

Hearsay Rule. These Issues, Raised for the

First Time Here, Should Not Be Considered. . . . . . . . . . . . . . . . . 20

C. Judge Vannoy Applied the Proper Legal

Standards in Excluding Testimony of Late

Disclosed Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

D. Judge Vannoy Did Not Abuse his Discretion in

Excluding Testimony of Plaintiffs’ Witnesses and

Documentary Evidence; Judge Vannoy Articulated

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Reasons Based on Proper Application of

Colorado Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

1. Krupa and French . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

2. Medical Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

E. Plaintiffs Have Not Showed Substantial,

Prejudicial Error as a Result of the Omission of an

Economic Damage Instruction Based on Damage

to the Vehicle, Where They Presented No Evidence

of That Damage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

F. Plaintiffs Presented No Evidence of Amounts

of past or Future Medical Bills and Expenses;

Therefore, Judge Vannoy Acted

Properly in Granting Anderson’s Motion for

Directed Verdict as to Those Claims. . . . . . . . . . . . . . . . . . . . . . . 38

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

iv

TABLE OF AUTHORITIES

Cases

American Family Mut. Ins. Co. v. DeWitt, 216 P.3d 60 (Colo.App. 2008) . . . . . . . 22

Barter v. Machinery & Supply Co. V. Muchow, 453 P.2d 804 (Colo. 1969) . . . . . 38

Berra v. Springer & Steinberg, P.C., 251 P.3d 567 (Colo.App. 2010) . . . . . . . . . 20

Berry v. Keltner, 208 P.3d 247 (Colo. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Camp Bird Colorado, Inc. v. Board of County Com'rs

of County of Ouray, 215 P.3d 1277 (Colo.App. 2009) . . . . . . . . . . . . . . . . . . 27, 32

Cornelius v. River Ridge Ranch Landowners Ass'n,

202 P.3d 564 (Colo. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Cook v. Fernandez-Rocha, 168 P.3d 505 (Colo. 2007) . . . . . . . . . . . . . . . . . . . . . 32

Day v. Johnson, 255 P.3d 1064 (Colo. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

D.R. Horton, Inc.-Denver v. Bischof & Coffman Construction, LLC,

217 P.3d 1262 (Colo.App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Estate of Stevenson v. Hollywood Bar & Café, Inc., 832 P.2d 718 (Colo. 1992) . . 20

Freedom Colorado Information, Inc. v. El Paso County

Sheriff's Dept., 196 P.3d 892 (Colo. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Garrigan v. Bowen, 243 P.3d 231 (Colo. 2010) . . . . . . . . . . . . . . . . . . . . 31, 32, 35

Harrison v. Smith, 821 P.2d 832 (Colo.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . 18

Hart v. Schwab, 990 P.2d 1131 (Colo.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . 23

v

Hendricks v. Allied Waste Transp., Inc.,

2012 WL 1881004, 6 (Colo.App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Hurt v. ICOS, 914 P.2d. 406 (Colo.App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

In re Marriage of Snyder, 701 P.2d 153 (Colo.App. 1985) . . . . . . . . . . . . . . . . . 19

Isis Litig., L.L.C. v. Svensk Filmindustri, 170 P.3d 742 (Colo.App. 2007) . . . . . . 24

Loomis v. Seely, 677 P.2d 400 (Colo.App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Manka v. Martin, 614 P.2d 875 0 (Colo. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Miller v. Rowtech, LLC 3 P.3d 492 (Colo.App. 2000) . . . . . . . . . . . . . . . . . . 30, 31

Melton By and Through Melton v. Larrabee, 832 P.2d 1069 (Colo.App. 1992) . . 37

Negron v. Golder, 111 P.3d 538 (Colo.App. 2004) . . . . . . . . . . . . . . . . . . . . . . . 16

Omedelena v. Denver Options, Inc., 60 P.3d 717 (Colo.App. 2002) . . . . . . . . . . 39

People ex rel. J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002) . . . . . . . . . . . . . . . . . . 17

People v. Fuller, 788 P.2d 741 (Colo. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

People v. Shari, 204 P.3d 453 (Colo. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

People v. Welsh, 80 P.3d 296 (Colo. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Pyles-Knutzen v. Board of County

Com'rs of County of Pitkin, 781 P.2d 164 (Colo.App. 1989) . . . . . . . . . . . . . 34, 35

Reigel v. SavaSeniorCare L.L.C., 2011 WL 6091709, 3 (Colo.App. 2011) . . . . . 39

Rojhani v. Meagher, 22 P.3d 554 (Colo.App. 2000) . . . . . . . . . . . . . . . . . . . . . . . 34

vi

Schmutz v. Bolles, 800 P.2d 1307 (Colo. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Specialized Grading Enterprises, Inc. v. Goodland

Constr., Inc., 181 P.3d 352 (Colo.App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Stahl v. Cooper, 190 P.2d 891 (Colo. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo. 1999) . . . 25, 26, 32

Trattler v. Citron, 182 P.3d 674 (Colo. 2008) . . . . . . . . . . . . . . . . . . . . . . . . 31, 32

Viles v. Scofield, 261 P.2d 148 (Colo. 1953) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Woodworker's Supply, Inc. v. Principal Mut.

Life Ins. Co., 170 F.3d 985 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Woznicki v. Musick, 119 P.3d 567 (Colo.App. 2005) . . . . . . . . . . . . . . . . . . . . . . 37

Statutes

C.R.C.P. 4(e)(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C.R.C.P. 26(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 33

C.R.C.P. 37(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

C.R.C.P. 37(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 32

C.R.C.P. 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

C.R.C.P. 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

vii

C.R.E. 103(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

C.R.E. 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

C.R.E. 807 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 23, 24, 36

C.R.E. 901(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

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I. STATEMENT OF ISSUES

A. Whether pro se Plaintiffs were excused from following Colorado Rules of

Civil Procedure and Rules of Evidence.

B. Whether Plaintiffs preserved objections to Judge Vannoy’s decisions on the

economic damages jury instruction; the admissibility of French’s testimony;

and the potential use of the residual hearsay exception as a means of

admitting medical records.

C. Whether Judge Vannoy applied the proper legal standard in excluding

testimony from witnesses first disclosed just prior to trial.

D. Whether Judge Vannoy, after articulating his reasons based on Colorado

law, acted within his discretion when he excluded certain of Plaintiffs’

evidence.

E. Whether Plaintiffs have proved substantial, prejudicial error as a result of

the lack of an economic damage instruction regarding alleged damage to the

vehicle, where Plaintiffs presented no evidence of that damage.

F. Whether Judge Vannoy acted properly in granting Anderson’s motion for

directed verdict on medical expense claims where Plaintiffs presented no

evidence of any actual amounts of past or future medical expenses.

II. STATEMENT OF THE CASE

A. Nature of the Case

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This case raises the question of whether pro se litigants are relieved of basic

obligations to comply with Colorado Rules of Civil Procedure and Rules of Evidence.

Plaintiffs (collectively “Plaintiffs” and individually “Bekirova” and “Suleyman”) were

initially represented by counsel. Plaintiffs’ counsel withdrew just before a previously

scheduled trial. Judge Vannoy allowed a five month continuance, and urged Plaintiffs

to obtain new counsel. Plaintiffs elected to proceed pro se and a verdict in favor of

Defendant Doris Anderson, as Personal Representative of the Estate of Anderson

(“Anderson”) was rendered. Plaintiffs assert various errors by the trial court. There

were, however, no errors, only the failure of Plaintiffs to comply with the Rules, and the

Court’s application of those rules in a proper and considered manner. Plaintiffs failed

to disclose trial witnesses until the eve of trial, and failed to comply with basic

evidentiary rules concerning the admissibility of evidence. The record reveals Plaintiffs

failed to lay proper foundations for admission of evidence and failed to submit evidence

which might have supported their claims. They raised no objections to Judge Vannoy’s

proposed jury instructions. A defense verdict was returned, however there was no error

in the trial warranting reversal.

B. Course of Proceedings and Disposition Below

In this admitted liability rear-end car accident case, at issue during trial were the

1References to trial transcript include the trial day number, page number:line number (i.e. 2,

54:4)

3

nature and extent of Plaintiffs’ injuries and damages. The Course of Proceeding and

Disposition Below in Plaintiffs’ Opening Brief is largely undisputed. While the

procedural history is essentially correct, pivotal to the issues on appeal was Plaintiffs’

decision to proceed pro se despite urging by the Court to find counsel. Due to a lack of

evidence, the Court directed a verdict in favor of Anderson on economic damage issues.

The jury rendered a defense verdict on the non-economic damages claim.

III. STATEMENT OF FACTS

On the date of the accident, Mervin Anderson was driving his 2001 Grand

Marquis, and Doris Anderson was a passenger. (2, 54:4; 55: 1-4; 62: 2.1) The

Andersons were driving home from their daily coffee shop. (2, 54: 4-6 & 12.) Mervin

looked down for a second, and when he looked back up, the cars had stopped. (2, 55:

1-3.) He slammed on the brakes but could not stop the car. (2, 55:3-4.) The air bags did

not deploy and the Andersons were not hurt. (2, 55: 16-24.) Before Mervin could get

out of the vehicle, Bekirova jumped out of her car, looked at it and started cussing up one

side and down the other and swearing at Mervin. (2, 56:12-13; 66: 3-5.) Suleyman

hollered at Mervin, “What did you do? Kill me?,” or “Did you try to kill me?” (2,

2Mr. Anderson passed away subsequent to the accident but before suit was filed.

4

56:10-11; 2, 66:7-8.) Mervin looked at the cars but did not see any damage. (2, 66:9-

10.) Mervin got back in his car, where he remained until police arrived. (2, 56, 13-15;

66 10-11.) When Bekirova saw the police coming, she jumped back in the car and

grabbed her neck. (2, 56: 18-19; 66:15-17.)

Ring & Associates, P.C. filed a personal injury suit on Plaintiffs’ behalf against

Doris Anderson, as personal representative of the Estate of Mervin Anderson, and Estate

of Mervin Anderson. R. 31790492.2 Plaintiffs served their C.R.C.P. 26(a)(1)

Disclosures on October 6, 2010. R. 33524129. Plaintiffs’ list of persons likely to have

discoverable information did not include Ray Krupa or Larry French, witnesses Plaintiffs

would later seek to present at trial. Plaintiffs’ computation of economic damages did not

include an amount for vehicle damage. R. 33524129. Plaintiffs filed Supplemental

Disclosures, setting forth a computation of economic damages in May, 2011. R.

39440838. Again, Krupa and French were not named; nor was an amount for damage

to the vehicle included.

Plaintiffs also served Expert Disclosures in February, 2011. R. 37186030. Those

disclosures did not identify Larry French, Plaintiffs’ accountant. Instead, both Plaintiffs

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endorsed Cecil McPherson, CPA, ABV as an expert specially retained, who would

testify as an economic loss expert. R. 37186030, P. 6 & 120-11.

Plaintiffs had other opportunities to identify Krupa and French, as well: Requests

for Admissions asked Plaintiffs to admit as a result of the accident they did not lose

income; they were not permanently disabled; and they would not suffer future income

loss. R. 53135737, P. 16, Nos. 1, 2 & 4; R. 3513579 P. 16; Nos. 1, 2 & 4. Plaintiffs

denied the Admissions. R. 53135737, P. 16, Nos. 1, 2 & 4; R. 3513579 P. 16; Nos. 1,

2 & 4. Interrogatory No. 22 (Pattern Interrogatory No.17.1) asked Plaintiffs, for each

admission not unqualified, to provide evidentiary proof including the names of persons

who have knowledge of the facts. R. 53135737, P. 10; R. 3513579; P. 9. Plaintiffs did

not respond, instead setting forth an objection to the Pattern Interrogatory based on out-

of-state case law. R. 53135737, P. 10, No. 22; R. 3513579; P. 9-10, No. 22.

Trial was initially set for June 27, 2011. R. 34417503. Plaintiffs filed a

preliminary witness list. French and Krupa were not named. R. 39440915. Ring &

Associates moved to withdraw as Plaintiffs’ counsel on June 6, 2011. R. 39860416. As

part of that Motion, Ring & Associates attached a letter to Plaintiffs, examining the

reasons for their withdrawal, stating they were not in a position to pay trial expert fees,

claimed to be at least $25,520 for four experts. R. 39860853. Ring & Associates gave

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Plaintiffs three options: 1) accept an outstanding settlement offer, 2) proceed to trial with

payment of trial costs by Plaintiffs, or 3) seek other representation. R. 39860853.

Plaintiffs, in a pro se filing, moved the court to delay the trial date, in part because they

could not pay for an attorney and/or expert witness fees. R. 39666304_37849663.

On June 14, 2011, while the Motions to Withdraw and for a new trial date were

pending, Plaintiffs filed a pro se brief. R. 40199708_38217216. That brief included a

summary of Plaintiffs’ economic and non-economic loss claims. R. 40199708_38217216.

Once again, Plaintiffs did not identify Krupa and French. Judge Vannoy held a pretrial

readiness conference on June 21, 2011. At that conference, Judge Vannoy granted

counsel’s motion to withdraw; set a new trial date of November 7, 2011; and “urged”

Plaintiffs to obtain counsel. R. 40236609_38252448.

Nothing further was filed with the Court until Anderson filed a Proposed Trial

Management Order on October 6, 2011. R. 43095020. The Court entered a Trial

Management Order on October 17, 2011. R. 43351097_40400593. Plaintiffs’ witness

list was attached to the TMO and identified, for the first time, Ray Krupa and Larry

French. R. 43351097_40400593. Krupa, an “unidentified” man in a surveillance video,

knew the couple since 2007 and worked on their cars, trucks, home, and garden. R.

43351097_40400593. His testimony would include what he noticed about Plaintiffs’

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physical condition. R. 43351097_40400593. French was Plaintiffs’ accountant and

would explain tax questions regarding Plaintiffs’ business, tax forms, and operation and

business workload. R. 43351097_40400593. The TMO and Amended TMO did not

include a claim to recover for vehicle damage. R. 43351097_40400593;

43533153_40524893.

Plaintiffs and Anderson also filed proposed jury instructions, prior to trial. R.

43743291_10CV166; R. 43662176. Plaintiffs’ proposed jury instructions did not include

an instruction on economic damages.

Before voir dire, Judge Vannoy explained various elements of trial procedure and

evidentiary rules to Plaintiffs. (1, 10:13-17.) He told them that he could explain what

needed to be done but could not help Plaintiffs try their case. (1, 10:21-24.) He told

them that the materials they had submitted before trial were not yet evidence. (1, 11:20-

25.) He explained that to admit evidence, there were legal requirements and the other

side would be allowed to object. They would need to present information identifying the

document, explain what it is and why it would be relevant to the case. (1, 12:15-21.)

Judge Vannoy emphasized that just because a party filed something with the Court, it

was not automatically evidence for the jury to view. (1, 13:8-14.) Anderson’s counsel

expressed concerns regarding hearsay documents that Plaintiffs might offer without

8

doctors or custodians to establish admissibility requirements. (1, 21:6-11.) In response,

Judge Vannoy explained that hearsay is a rule of evidence generally prohibiting

admission of out-of-court statements as evidence during trial. (1, 21:17-20.) He noted

that these might apply to their medical records. He told Plaintiffs they must lay the

foundation to show the documents were admissible. (1, 21:17- 22:7.)

After the jury was sworn in, Bekirova asked, in reference to various documents,

whether she should hand them to the Judge or address them one by one. (1, 39:6-10.)

Judge Vannoy again explained Bekirova would have to identify the documents and lay

the foundation through witness testimony. So Judge Vannoy suggested holding on to the

documents and calling her first witness. (1, 39:11-15.)

During his testimony, Suleyman claimed his vehicle was damaged in the accident.

(See, 1, 50:19-21; 57:10; 58:18-19.) Suleyman did not get his car fixed, because it was

not important to him, instead, he traded it. (1, 58:22-23, 66:24-25, 67:1 67:2-3.)

Suleyman obtained an estimate from a repair shop for $1,400, but Plaintiffs did not seek

to have that estimate admitted. (1, 76:9-11.)

Bekirova made reference to Suleyman’s medical records during his testimony.

Anderson’s counsel objected to Suleyman’s testimony regarding the medical records, on

grounds of authentication and hearsay. (1, 81:10-14.) Judge Vannoy noted Suleyman

9

did not prepare or keep the medical records, therefore could not authenticate them or

establish the grounds for a hearsay exception. (1, 81:19-23.) Plaintiffs did not raise the

residual hearsay exception rule, C.R.E. 807, at that time or at any time prior to this

appeal. Judge Vannoy also noted that medical records contained expert opinions. (1,

81:24-25.) Suleyman could not lay a foundation or establish authenticity, and was not

qualified to render expert medical opinions such as those concerning diagnosis and

prognosis. (1, 81:24-25, 82:1-3-10.) Suleyman was permitted to testify about his

physical symptoms, who treated him, and the course and progress of his treatment. (1,

82:4-6.)

Bekirova sought further explanation: “But he - - he could testify to what’s in the -

- in the medical records.” (1, 82:11-12.) Judge Vannoy explained Suleyman could

testify to the extent he had personal knowledge, to explain his symptoms and such, but

could not testify as if he was a doctor about test results and diagnosis. (1, 82:13-17.)

Bekirova also tried to have medical records admitted into evidence. (1, 83:9-11.)

Judge Vannoy tried to help Bekirova understand the reasons for inadmissibility. (1,

84:22-24.) After explaining again what would be needed to have the records admitted,

Judge Vannoy recommended meeting the next day before the jury came in to go through

some of the documents. (1, 83:13-18; 19-24; 84:8-11; 22-24.) But the Judge advised he

10

could not categorically rule a stack of papers was admissible. (1, 85:6-7.)

Bekirova, taking a different route, again attempted to have a medical record

admitted. Anderson’s counsel objected on three grounds: hearsay, expert testimony and

failure to authenticate. (1, 87:9-11.) After reviewing the record, the Court sustained the

objection. (1, 87:12-14.) Exhibits 6-24, 27, 32 and 37 were excluded for the same

reasons. (1, 87:21-25; 80:9-11; See, pgs. 88-94, 96-97; 2, 18:2-19.) During the

rebuttal case, Plaintiffs again sought to have medical records admitted. After hearing

from both sides, the Court denied admission of medical records on grounds of failure to

authenticate, hearsay without an exception, and on the grounds that they contained expert

opinions requiring expert testimony. (2, 183:18-19; 183:23-25; 184:3-11; 184:23-25;

185:4-11; 185:14-22; 185:25; 186:1-7; 186:24-25; 187:1-8; 187:11-13; 187:13-22;

187:25; 188:1; 188:3-7; 188:7; & 188:11-20.)

During Plaintiffs’ case in chief, Bekirova called Krupa to testify. (2, 40:8-9.)

Anderson’s counsel objected: Krupa was not identified in Plaintiffs’ disclosures and

discovery responses. (2, 40:14-17.) Plaintiffs’ first Witness List did not include Krupa.

(2, 40:21-23.) And his name was not mentioned at the beginning of trial or during voir

dire. (2, 40:23-25.) Bekirova responded, “It’s right here,” (referring to the October 17

TMO Witness list). (2, 41:1, 4-5.) Anderson’s counsel again objected: he had no idea

11

Krupa would be called, he had not been on earlier witness lists, and he did not have the

opportunity to question the jurors about him during voir dire. (2, 41:5-8.) Judge Vannoy

noted Krupa’s name did not appear in the preliminary witness list filed in May. (2,

41:22-24.) The Judge then considered how the defense would be prejudiced if Krupa

testified within the scope of the endorsement Plaintiffs provided on October 17. (2, 42:3-

7.)

Judge Vannoy heard from both sides on the issue. Anderson asked for witness

information in discovery: witnesses who could testify about Plaintiffs’ claimed loss of

income, permanent impairment, future medical rehabilitation expense, future loss of

income and probable medical treatment in the future. (2, 42:9-17,19-20, 24-25; 43:1.)

The discovery was met with objection only. Bekirova stated they were not pro se when

they answered discovery. She did not know what representations the attorney had made.

(2, 43:23-25; 44:1.) Judge Vannoy asked Bekirova if she had identified Krupa at any

time after counsel withdrew, but prior to October 6. (2, 44:4-7.) Bekirova did not

identify a prior occasion.

Judge Vannoy, reading from Plaintiffs’ Witness List, noted Krupa was expected

to testify he has known both Plaintiffs since 2007 and had worked on their cars, trucks,

homes and garden. (2, 46:4-10.) Krupa was also offered to testify as to the physical

12

conditions he noticed. (2, 46:4-10.) Judge Vannoy determined Plaintiffs did not properly

disclose Krupa until October 6. (2, 46:15-18.) Plaintiffs had known Krupa since 2007.

He should have been identified with Plaintiffs’ initial Disclosures, or at minimum, shortly

after the June continuance. Allowing Krupa’s testimony would have contradicted the

Rule concerning disclosure. The Judge found that the testimony was inadmissible unless

Plaintiffs could show excusable neglect, or that there was no harm to the other side. (2,

46:19-24.) Those standards were not met. (2, 47:1-2.) Plaintiffs were under an ongoing

obligation to supplement disclosures and to explain their trial plan regardless of whether

they are represented. (2, 47:17-19.) Plaintiffs were responsible for their own omissions.

(2, 49:4-5.)

The Court then asked Bekirova for her next witness. (2, 50:1-2.) Bekirova said:

“If Mr. Krupa was not on the list for the time limit, I believe Mr. French was not on that

list either then.” (2, 50:3-5.) The Court then asked whether Plaintiffs intended to rest

their case in chief, and Bekirova responded affirmatively. (2, 50:6-8.)

After Plaintiffs rested their case, Anderson’s counsel moved for a directed verdict

on past and future medical expenses. (2, 75:21-22.) Suleyman had Medicaid and

Bekirova had CICP, both with co-pays. (2, 75:20-25; 76:1.) There was testimony about

additional charges for some procedures. (2, 76:1-2.) But, there was no testimony about

the necessity of treatment; the total number of doctor visits; the amount or number of co-

13

pays; or any actual amount of past and future medical expenses. (2, 76:3-8.) And there

was no testimony about future medical needs or potential future medical expenses. (2,

76:8-10.)

In response, Mr. Suleyman stated if he needs surgery, his future treatment is

approximately $125,000 plus post-surgery treatment. (2, 76:16-18.) Bekirova could not

present her evidence because Anderson objected to everything. (2, 76:21-23.)

Judge Vannoy found there was no evidence of the amount, reasonableness and

necessity of Suleyman’s future treatment. (2, 78:3-6.) And there was no evidence as to

past treatment, of actual out-of-pocket expenses, co-payments or deductibles. (2, 78:11-

18.) As such, the Court granted the directed verdict as to that element of economic

damages. (2, 78:20-22.)

During the jury instruction conference, Bekirova acknowledged receipt of

Anderson’s proposed jury instructions. (2, 190:12-14.) Judge Vannoy found evidence

of non-economic losses and injuries, but was uncertain as to evidence of economic losses

or injuries. (2, 191:1-4.) Judge Vannoy explained the procedure for reviewing jury

instructions; advising Plaintiffs of their right to object three (3) times. (2, 195:5-9, 11-13;

197:18-24; and 3, 2:4-17.)

Judge Vannoy then asked Plaintiffs if they had any objections. (3, 3:5-6.)

Bekirova responded, “No, your Honor.” Plaintiffs did not submit an instruction as to

14

economic damages. (3, 3:7.) After deliberation, the jury returned a defense verdict.

IV. SUMMARY OF ARGUMENT

In this admitted liability, minor impact rear-end car accident case, pro se Plaintiffs

made a series of procedural and evidentiary errors resulting in exclusion of evidence and

a directed verdict on their medical expense claim. After Plaintiffs’ counsel withdrew,

Judge Vannoy re-set trial for a date months later, urging Plaintiffs to obtain counsel.

They did not. Proceeding pro se, Plaintiffs’ failed to preserve three of the issues raised

on appeal. Plaintiffs did not object to the proposed jury instructions, thus failing to

preserve any objection to the omission of an instruction on economic damages. Second,

Plaintiffs did not actually call French as a witness. Judge Vannoy did not rule on the

admissibility of his testimony. There was no appealable ruling as to the question of

whether he should have been permitted to testify. Third, Plaintiffs did not preserve a

claim that their medical records should have been admitted based on the residual

exception to the hearsay rule. This rule requires pre-trial disclosure (under C.R.E. 807)

which was not done, and during trial, no similar claim was made. Again, the issue was

not preserved.

Plaintiffs identified two trial witnesses for the first time on the eve of trial.

Plaintiffs made no disclosure of those witnesses pursuant to C.R.C.P. 26(a)(1) or in

response to discovery. Judge Vannoy, applying the proper legal standard, acted within

15

his discretion in imposing the sanction of witness preclusion.

Before the jury was selected and multiple times during trial, Judge Vannoy

endeavored to explain Colorado Rules of Civil Procedure and Rules of Evidence to

Plaintiffs. Despite his explanations and cautions, Plaintiffs sought to have medical

records admitted through their own testimony. Judge Vannoy acted within his discretion

when he properly refused testimony about medical records and documentary evidence

consisting of medical records, based on lack of authentication, failure to lay a proper

foundation, hearsay, and concern about expert opinions within the records requiring

medical expertise. Judge Vannoy’s rulings relied on the Colorado Rules of Evidence,

which are applicable to all trial participants, even those proceeding pro se.

Additionally, Plaintiffs have not shown substantial, prejudicial error in the omission of

the economic damage instruction. Plaintiffs neither claimed nor submitted evidence

about the amount of damage to their vehicle.

Finally, Judge Vannoy properly granted Anderson’s motion for directed verdict

on the issue of past and future medical bills, because no evidence of amounts incurred

or expected future costs was presented. Now, Plaintiffs argue there was sufficient

evidence of those expenses presented. The record, however, supports Judge Vannoy’s

determination

Plaintiffs appeal is based entirely on the theory that as pro se litigants they should

16

not have been required to meet the basic standards of the Rules of Civil Procedure and

Evidence. Plaintiffs’ failure over the period of the 5 month continuance, to reasonably

acquaint themselves, as pro se litigants, with basic aspects of these rules should not give

them a second chance to do so at the expense of the Defendant who has now prepared

for this case twice and defended it through trial. When Plaintiffs’ elected to represent

themselves, they took on the obligation to learn the essentials required. Judge Vannoy’s

rulings throughout the trial were not in error. He properly applied procedural and

evidentiary rulings to the issues presented.

V. ARGUMENT

A. Pro Se Plaintiffs Must Follow the Same Rules of Civil Procedure and Rules

of Evidence as Licensed Practitioners. Plaintiffs Underlying Plea for

Leniency is Contrary to Established Colorado Law.

Plaintiffs’ Opening Brief is replete with suggestion that Judge Vannoy should

have applied a lower standard to the self-represented Plaintiffs. Other pro se litigants

have made this argument and failed. See, e.g., Negron v. Golder, 111 P.3d 538, 542

(Colo.App. 2004) (trial court did not err in denying pro se plaintiff’s motion for default

judgment where he failed to comply with C.R.C.P. 4(e)(10) for service of process of the

defendant). Instead, the longstanding law in Colorado holds pro se litigants are bound

by the same procedural and evidentiary rules as attorneys licensed to practice law in

Colorado. Viles v. Scofield, 261 P.2d 148, 149 (Colo. 1953).

17

A pro se party’s unfamiliarity with the Rules of Civil Procedure “does not excuse

failure to make required disclosures.” Cornelius v. River Ridge Ranch Landowners

Ass'n, 202 P.3d 564, 572 (Colo. 2009). A tactical error made by a pro se party because

he did not have counsel is not ordinarily grounds for relief from judgment. People ex

rel. J.A.U. v. R.L.C., 47 P.3d 327, 333 n.10 (Colo. 2002). When a litigant relies on his

own understanding of legal principles and procedures in court, he must also accept the

consequences of resulting mistakes and errors. Manka v. Martin, 614 P.2d 875, 880

(Colo. 1980); Viles v. Scofield, 261 P.2d 148. A pro se litigant is restricted to the same

procedural rules, otherwise “ignorance is unjustly rewarded.” Finally, a judge may not

become surrogate counsel for a self-represented party. Loomis v. Seely, 677 P.2d 400,

402 (Colo.App. 1983).

The issues presented on appeal here are not judicial errors. Instead, the events

before and during trial giving rise to this appeal were failures by Plaintiffs to comply

with the rules and their complaint that the rules were too harsh when applied to them.

Plaintiffs were cautioned about proceeding pro se well in advance of and during the

trial. R. 40236609_38252448. Plaintiffs nevertheless elected to proceed pro se and

should not be rewarded with a new trial for their failure in that capacity to comply with

the Rules.

The first indication of their cry that the rules should be waived is that more than

18

half of the issues now raised were not preserved at trial. In two of these, there was not

even a ruling. Plaintiffs stated they had no objection to the proposed jury instructions,

even though Judge Vannoy noted he was not including an instruction on economic

damages. (3, 3:5-7.) Where no instruction was offered, and no objection raised,

Plaintiffs flaunt the rules in demanding reversal to protect their rights.

Similarly, Plaintiffs did not even call French as a witness. The judge had no

opportunity to determine whether different considerations applied to French than to

Krupa. There is no ruling on the record regarding the admissibility of French’s

testimony. There is no ruling for this Court to reverse.

Plaintiffs’ appellate counsel now suggests the Court should have reached into thin

air to find and apply C.R.E. 807, the residual exception to the hearsay rule. Plaintiffs

did not comply with pre-trial notice requirements of this rule, and raised no such claim

during trial. Nevertheless, Plaintiffs argue, the Judge was wrong not to find a way to

protect them from their own failure to properly prepare. Plaintiffs’ failure to preserve

is not excused by their pro se status. Harrison v. Smith, 821 P.2d 832, 834 (Colo.App.

1991); Hurt v. ICOS, 914 P.2d. 406,409 (Colo.App. 1995).

Additionally, after their counsel withdrew, Plaintiffs were given a 5 month

continuance to prepare for trial. They waited until 30 s before trial to figure out what

evidence they planned to present and submitted it only as a witness list to the court.

19

They listed two proposed trial witnesses, Krupa and French, of whom the defense had

no prior knowledge. Both were personal acquaintances of Plaintiffs, and could easily

have been identified and disclosed shortly after the continuance. R.

43351097_40400593. Plaintiffs’ failure to timely disclose is not excused by their pro

se status. See, Cornelius v. River Ridge Ranch Landowner’s Ass’n., 202 P.3d 564

(Colo. 2009).

Finally, Judge Vannoy attempted to explain to Plaintiffs the admissibility issues

with their medical records and explained evidentiary rules on admissibility on numerous

occasions. (1, 21:6-11; 21:17-20; 22:3-7; 39:11-15; 81:19-25; 82:1-10; 82:13-17;

83:13-25; 85:6-7; 2, 85:1-3.) Having failed or refusing to heed his advice or learn the

requirements, Plaintiffs now suggest that the Court should have just accepted the records

as evidence. Plaintiffs’ failure to follow steps for document admissibility is not excused

by their pro se status. In re Marriage of Snyder, 701 P.2d 153 (Colo. App. 1985).

Judge Vannoy did not err in his rulings. He went out of his way to explain

procedure and evidence to Plaintiffs. The errors Plaintiffs attempt to cast as judicial

errors were Plaintiffs’ own omissions and errors. A determination by this Court that the

judgment must be reversed because Judge Vannoy held them to certain basic standards,

unjustly rewards Plaintiffs for their failure to properly acquaint themselves with the

basic rules applicable to a trial or to heed the Judge’s warnings during trial. As proved

20

by the record and addressed in this brief, Judge Vannoy properly applied Colorado law

to the circumstances created by Plaintiffs. Therefore, Anderson asks this Court to affirm

the trial verdict.

B. Plaintiffs Did Not Object to the Omission of an Economic Damages Jury

Instruction; Did Not Offer French’s Testimony or Claim Admissibility of

Their Medical Records Under a Residual Exception to the Hearsay Rule.

These Issues, Raised for the First Time Here, Should Not Be Considered.

An issue is preserved for appeal only when the moving party addressed it at trial

and the trial judge had the opportunity to rule on it. Berra v. Springer & Steinberg,

P.C., 251 P.3d 567, 570 (Colo.App. 2010). A party’s general opposition to another’s

request does not preserve all potentially appealable issues. Only specific arguments

raised by a party at trial are reviewed at the appellate level. See, Estate of Stevenson v.

Hollywood Bar & Café, Inc., 832 P.2d 718, 721 n. 5 (Colo.1992)(district court must be

afforded the opportunity to consider and rule on a party's argument).

C.R.C.P. 51 requires objection to alleged jury instruction errors before the jury

hears them. Parties are required to preserve objections to jury instructions. D.R.

Horton, Inc.-Denver v. Bischof & Coffman Constr., LLC, 217 P.3d 1262, 1268 -1269

(Colo.App. 2009). Preservation allows the trial court to clarify or correct misleading

or erroneous instructions before they are read to the jury and prevents the cost of retrial

necessitated by avoidable prejudicial error. Id. The objection must be specific; a

3Plaintiffs argue Judge Vannoy should have instructed the jury on damages based on another

new argument that there was some evidence as to the amount of vehicle damage. There was no

actual evidence as to the amount of damage, so the argument is unfounded. This argument is

addressed further in Section F, below.

21

general objection has the same effect as no objection because it does not afford the court

the opportunity to correct error. Id. Where a trial court requests input from the parties

and a party affirms the instructions with no objection, the [party] waives any claim of

error based on the instructions. Hendricks v. Allied Waste Transp., Inc., 2012 WL

1881004, 6 (Colo.App. 2012); See C.R.C.P. 51; Day v. Johnson 255, P.3d 1064, 1067

(Colo. 2011).

Here, Plaintiffs did not preserve the issue of whether Judge Vannoy should have

instructed the jury on economic damages. Plaintiffs submitted no proposed jury

instruction on damages. R. 43743291_10CV166; R. 43662176. Whether the instruction

should have been given is irrelevant since Plaintiffs raised no objection to the

instructions.3 Bekirova acknowledged receipt of the proposed jury instructions e-filed

by defense counsel. (2, 190:12-14.) After selecting what he perceived to be the proper

jury instructions, Judge Vannoy explained the procedure, and advised Plaintiffs three

times of their right to object:

. . . I’ll start off with a conference with everybody . . . And

we’ll go over the instructions. If you have any objections to

those instructions, you’ll be able to state those objections at

that time. (2, 195:5-9.) We’ll deal with those issues first

22

thing. And then we’ll arrive at the final set of instructions

and - - verdict forms. (2, 195:11-13.)

I’ve outlined what I think needs to go into those instructions.

But tomorrow morning we’ll have a conference about those

instructions and verdict forms. And if you think there is a

mistake or you think they’re wrong or you think I should add

an instruction or take out an instruction, you can do that.

You can make the argument, just as Mr. Temple can. (2,

197:18-24.)

So I’ve numbered the instructions. . . I’ll ask you to review

those and state whether you have any objections or any

additional instructions at this point. (3, 2:4-17.)

Judge Vannoy then asked Plaintiffs if they had any objections. (3, 3:5-6.) Bekirova

responded, “No, your Honor.” (3, 3:7.)

As the record reflects, Plaintiffs failed to object to the jury instructions or offer

a proposed instruction on economic loss. Plaintiffs must bear the consequence. Since

there was no objection to the omission of an economic loss jury instruction, the issue

was not preserved. This Court need not address the issue.

Plaintiffs failed to preserve two of their evidentiary issues as well. Preservation

of an objection to admission of trial evidence must be timely made, C.R.E. 103(a)(1);

appear on the record; and state specific grounds. American Family Mut. Ins. Co. v.

DeWitt, 216 P.3d 60, 65 (Colo.App. 2008). Requiring a specific objection fulfills two

important goals: judges can rule upon the objection in an informed and intelligent way

4It should also be noted that the records were excluded on the grounds of authenticity, and

because they contained expert opinion not otherwise admissible. Even if the Judge might have been

asked to find a hearsay objection this would not warrant the admission of the records as noted in

23

and opposing counsel can propose alternatives that address the concerns raised by the

objection. Hart v. Schwab, 990 P.2d 1131, 1135 (Colo.App. 1999).

The first evidentiary issue not properly preserved pertains to Plaintiffs’ intended

witness, French. The record reflects no court ruling on whether French would be

permitted to testify. After Judge Vannoy refused Krupa’s testimony, he asked Plaintiffs

for their next witness. Bekirova stated “If Mr. Krupa was not on the list for the time

limit, I believe Mr. French was not on that list either then.” (2, 50:3-5.) Judge Vannoy

did not issue a ruling on French’s testimony, because Plaintiffs did not call French as a

witness. The record does not show Judge Vannoy dissuaded Plaintiffs from calling

French. There is no Colorado case law requiring a court to interpret a party’s

presumptions. Therefore, the issue of whether the Court applied the proper legal

standard in refusing French’s testimony–or whether the trial court abused its

discretion–is not before this Court. Because Plaintiffs did not preserve the issue, it

should not be considered here.

Finally, Plaintiffs’ claim that Judge Vannoy should have applied the residual

exception to the hearsay rule, C.R.E. 807, when Anderson objected to admission of their

medical records.4 C.R.E. 807 requires the moving party to make its use known to the

sections of this Brief below.

24

adverse party in advance of trial, so the adverse party has a fair opportunity to respond.

There is no such notice reflected in the record. Moreover, Plaintiffs did not even raise

Rule 807 in response to the hearsay objection at trial. While the elements of Rule 807

are examined at length in the Opening Brief, Judge Vannoy was not given the

opportunity to rule on their applicability. The issue was not preserved; this Court should

not try to second guess a ruling that was not made.

C. Judge Vannoy Applied the Proper Legal Standards in Excluding Testimony

of Late Disclosed Witnesses

Plaintiffs identified two witnesses for the first time in their witness list, one month

before trial. Judge Vannoy excluded Krupa’s testimony, for reasons set forth in the

record, and Plaintiffs argue that they did not actually call French because of the Court’s

ruling on Krupa. A trial court’s interpretation of the rules of civil procedure involves

questions of law, which are reviewed de novo by the appellate courts. Isis Litig., L.L.

C. v. Svensk Filmindustri, 170 P.3d 742, 744 (Colo.App. 2007). Whether the trial court

applied the correct legal standard is a question of law, also requiring de novo review.

Freedom Colorado Information, Inc. v. El Paso County Sheriff's Dept., 196 P.3d 892,

897-898 (Colo. 2008).

This issue arises because of Plaintiffs’ disclosure, for the first time in the Trial

25

Management Order, of two witnesses unknown to the defense. Pursuant to C.R.C.P.

26(a)(1), Anderson objected to their trial testimony. C.R.C.P. 37(c)(1) sets forth the

standard for imposing sanctions for a party’s failure to make mandatory disclosures:

A party that without substantial justification fails to disclose

information required by C.R.C.P. Rules 26(a) or 26(e) shall

not, unless such failure is harmless, be permitted to present

any evidence not so disclosed at trial.

A trial court has “considerable discretion” when considering substantial justification and

harmless failure. Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo. 1999).

The burden is on the non-disclosing party to establish its failure to disclose was

substantially justified or harmless. Id. The non-offending party is not required to file a

motion for the imposition of sanctions. Id.

There are several factors to “guide a trial court’s determination of whether a

failure to disclose is either substantially justified or harmless,” derived from federal

courts. Id. at 978. The list, a sampling, includes:

(1) the importance of the witness's testimony;

(2) the explanation of the party for its failure to comply with

the required disclosure;

(3) the potential prejudice or surprise to the party against

whom the testimony is offered that would arise from allowing

the testimony;

(4) the availability of a continuance to cure such prejudice;

(5) the extent to which introducing such testimony would

disrupt the trial; an

(6) the non-disclosing party's bad faith or willfulness.

26

Id., see Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 992

(10th Cir. 1999). A trial court need not make explicit findings concerning the

substantial justification or harmlessness of a failure to disclose, but should nevertheless

be guided by those factors. Woodworker's Supply, Inc., 170 F.3d at 993.

The Supreme Court recently examined the element of substantial justification in

Berry v. Keltner, 208 P.3d 247, 249-251 (Colo. 2009). The C.A.R. 21 review reveals

each case is extremely fact specific. Berry sought to extend a discovery deadline (well

before trial) for treatment and assessment of a condition based on newly obtained scan

results. Id. Berry’s late disclosure of her expert treating doctor was due to a

progressive nature of her injury so he was a new witness, not one whom she knew from

years back. Id. That expert was crucial to her case. Id. And, there was no bad faith,

Berry did not know of the expert earlier.

In evaluating the harmless element, the issue a court must consider is “whether

the party's failure to timely disclose the evidence will prejudice the opposing party by

denying that party an adequate opportunity to defend against the evidence.” Todd v.

Bear Valley, 980 P.2d at 978. So, on review, this Court must consider that question.

Camp Bird Colo., Inc. v. Board of County Com'rs of County of Ouray, 215 P.3d 1277,

1292 (Colo.App. 2009).

When Bekirova called Krupa as a witness, Anderson’s counsel objected, because

27

Krupa was not identified in Plaintiffs’ disclosures or in any discovery responses. (2,

40:14-17.) The first Witness List did not include Krupa. (2, 40:21-23.) He was not

mentioned at the beginning of trial or during voir dire. (2, 40:23-25.) Bekirova stated,

“It’s right here,” (referring to the October 17 TMO Witness list). (2, 41:1, 4-5.)

Anderson’s counsel did not anticipate that Krupa would be called and did not have the

opportunity to question the jurors about him during voir dire. (2, 41:5-8.) Anderson’s

counsel had no opportunity to conduct discovery about Krupa since discovery closed

20 days before Krupa’s name appeared on any witness list. (2, 42:9-10.) J u d ge

Vannoy noted Krupa’s name did not appear in the preliminary witness list filed in May.

(2, 41:22-24.) Once the late disclosure was confirmed, the question became whether

admission of the testimony would be harmless, and whether there was substantial

justification for the tardy disclosure.

Judge Vannoy heard from both sides on the issue. In discovery, Anderson asked

for witnesses who could testify about Plaintiffs’ claimed loss of income, permanent

impairment, future medical rehabilitation expense, future loss of income and probable

future medical treatment. (2, 42:9-17,19-20, 24-25; 43:1.) The discovery was met with

objection, not a response including Krupa’s name. In response, Bekirova argued they

were not pro se when discovery was prepared; they did not know what representations

the attorney had made. (2, 43:23-25; 44:1.) Judge Vannoy asked Bekirova if she

28

identified Krupa to the defense after counsel withdrew, but before October 6. (2, 44:4-

7.) Bekirova did not identify any prior disclosure.

After hearing argument from both sides, Judge Vannoy noted Krupa had known

Plaintiffs since 2007 and he had, on occasions, worked on their cars, trucks, homes and

garden. (2, 46:4-10.) Krupa was expected to testify as to the physical conditions he

noticed during the times and situations they shared together. (2, 46:4-10.) Judge

Vannoy held Plaintiffs did not properly disclose Krupa until October 6, long after the

deadline for witness endorsement, even though Plaintiffs had been given 5 months to

prepare following counsel’s withdrawal. (2, 46:15-18.)

Allowing Krupa’s testimony would be contrary to the Rule. The testimony was

presumed to be inadmissible unless Plaintiffs could show there was no harm to the other

side or the failure to endorse was due to excusable neglect. (2, 46:19-24.) The Court

considered whether the late disclosure was a result of “excusable neglect” rather than

saying that he considered whether the late disclosure was “substantially justified.”

Plaintiffs’ make an issue of this, however it is difficult to see how something that was

“substantially justified” would not also be the result of “excusable neglect.” The Court

did not think those standards were met. The Court noted that allowing the testimony

would not be “harmless” since the defense had not been allowed to conduct pre-trial

discovery as to the testimony or claims of this witness. (2, 47:1-2, 3-15.) Nor did

29

Plaintiffs show any excusable neglect for not identifying Krupa earlier in the disclosure

process. (2, 47:15-16.) Plaintiffs were under an ongoing obligation to supplement

disclosures and explain their trial plan regardless of representation. (2, 47:17-19.)

Plaintiffs were as responsible for the omission as they would have been had they had

counsel. (2, 49:4-5.)

Judge Vannoy’s findings support the conclusion that there was no “substantial

justification” for the late disclosure. Despite Plaintiffs’ argument, the Court considered

the content of Krupa’s testimony. Judge Vannoy reviewed the TMO and his proposed

testimony. The court may not have used the phrase “substantial justification,” but the

record shows Judge Vannoy considered the content of Krupa’s testimony when issuing

his ruling. This Court may consider that Krupa was expected, essentially, to testify to

the fact that Plaintiffs were actually as injured as they said they were, or so he believed.

Since Plaintiffs had testified to these facts, and they had no justification at all for the late

disclosure (much less a substantial one), this Court may also reach that conclusion.

Plaintiffs could and should have, named Krupa and French in their initial

disclosures, in their discovery responses, or shortly after their counsel withdrew.

Plaintiffs could testify to the same facts as Krupa. Also, even though French was never

offered as a witness, Plaintiffs could have testified to the substance of their own

financial matters, and their tax returns were submitted to the jury. Summarily, there was

30

no substantial justification for the late disclosure, nor any loss of substantive information

available to the jury as a result. The testimony was properly excluded.

The court also determined Krupa’s testimony would prejudice and was not

harmless to Anderson and his determination is supported by the facts. Defendant was

not afforded a reasonable opportunity to prepare to defend Krupa’s testimony. (2, 47:1-

2.) The facts before the judge do not support a conclusion that Krupa’s testimony

would have been harmless. (2, 47:13-15.)

As noted, Judge Vannoy used the term “excusable neglect,” but from his

statements it is clear that he applied a “substantial justification” standard. Therefore,

this Court may uphold the exclusion of Krupa’s (and French’s) testimony.

Even if Judge Vannoy applied the wrong standard, a de novo review of the record

shows his error was harmless. Plaintiffs lacked justification and the late disclosure was

prejudicial to Anderson because he did not have the opportunity to prepare to defend

Krupa’s testimony. Where a court reaches a right result, even for the wrong reason, the

Court of Appeals may affirm. Miller v. Rowtech, LLC 3 P.3d 492, 496 (Colo.App.

2000).

As noted above, the Court was not given the opportunity to evaluate the

admissibility of French’s testimony. Plaintiffs did not call him to testify. Since the issue

was not raised at trial (and Judge Vannoy had no opportunity to rule) it is impossible to

31

perform a de novo (or any other) review here.

Judge Vannoy applied the proper legal standard to this decision, and the exclusion

does not support a reversal of the judgment.

D. Judge Vannoy Did Not Abuse His Discretion in Excluding Testimony of

Plaintiffs’ Witnesses and Documentary Evidence; Judge Vannoy Articulated

Reasons Based on Proper Application of Colorado Law

1. Krupa and French

A trial court’s decision to admit or refuse testimonial and documentary evidence

is discretionary. People v. Welsh, 80 P.3d 296 (Colo. 2003). That decision may be

reversed only for an abuse of discretion. Trattler v. Citron, 182 P.3d 674, 681 (Colo.

2008). Reversal is only warranted where the court’s decision was “manifestly arbitrary,

unreasonable or unfair”; when it provides no reason for the decision and no reason is

apparent from the record; when its reasoning is not based on facts; or the reason is

contrary to the law. Garrigan v. Bowen, 243 P.3d 231, 241 (Colo. 2010). For reversal,

the decision must “exceed the bounds of the rationally available choices.” Id., quoting

People v. Shari, 204 P.3d 453, 465 (Colo. 2009). Under this discretionary standard,

there is a range of possible outcomes based on the facts and the law, rather than one

right answer. Garrigan, 243 P.3d at 241. On review, appellate courts do not “pick and

choose” among outcomes. Id. Instead, the appellate court will defer to the trial court

as long as the decision falls “within the realm of these rationally available choices.” Id.

32

Judge Vannoy excluded Krupa’s (and French’s) testimony as a sanction under

C.R.C.P. 37(c)(1). As set forth in Todd, 980 P.2d at 978; and Cook v. Fernandez-

Rocha, 168 P.3d 505, 506 (Colo. 2007), the rule requires witness preclusion where late

disclosure was not substantially justified or harmless. In Todd and Cook, the evidence

precluded was evidence not disclosed, and C.R.C.P. 37(a)(1) required preclusion. See

Trattler v. Citron, 182 P.3d at 681.

Only when exclusion is not required under C.R.C.P. 37(a)(1) is further analysis

necessary to determine whether preclusion of evidence or a different sanction is

appropriate. Id. In Trattler, for example, Trattler disclosed the identity of expert

witnesses, but not the experts’ testimonial history. The trial court was not required to

exclude witness testimony entirely because the witness was disclosed. Since preclusion

would have been inappropriate, the court should have considered an alternative sanction.

Id; Camp Bird v. Ouray, 215 P.3d at 1290.

The courts make a clear distinction, however, between a party’s failure to

disclose in violation of C.R.C.P. 26(a)(1) and incomplete disclosure, or violation of a

discovery rule. In the first instance, exclusion is mandatory. Under all other situations,

it is within a court’s discretion to exclude evidence, and it may be equally appropriate

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to impose a lesser sanction. Plaintiffs’ claim that Judge Vannoy should have imposed

a lesser sanction invokes a claim of abuse of discretion. However, when considered

under either section of C.R.C.P. 37(a)(1), there was no discretion. The only appropriate

sanction was witness preclusion. Additionally, Plaintiffs did not seek a trial continuance

once they realized they had not disclosed Krupa and French prior to trial. (In fact the

Court had already given them a continuance to make their own trial plan.) Instead, they

listed these witnesses in a tardy disclosure, and raised the issue for the first time during

trial. Anderson had no opportunity to depose the witnesses, prepare a defense, or to

question jurors about potential familiarity with the witnesses. Declaring a mistrial at

that time, for discovery to take place, would have been a waste of judicial economy and

unfair to Anderson. Given the circumstances, there was no feasible lesser sanction here.

The witnesses, and their entire testimony, were new. Even if Judge Vannoy had other

options at his discretion (which Anderson does not admit), he certainly had the

discretion to exclude, and it was properly exercised.

2. Medical Records

At various times during trial, Judge Vannoy explained the evidentiary obligations

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Plaintiffs would have to meet before medical records could be admitted. (1, 83:19-23.)

There were many evidentiary issues surrounding Suleyman’s effort to testify about what

was in the records. (1, 83:23-24.) Judge Vannoy questioned whether Suleyman was

qualified, and found Suleyman unable to testify in a way that could establish the

requirements to admit medical records. (1, 83:24-25; 84:1-4.)

One prerequisite to the admissibility of documentary evidence is authentication.

C.R.E. 901(a); Rojhani v. Meagher, 22 P.3d 554, 556 (Colo.App. 2000). The

proponent must provide sufficient evidence supporting a finding that the document is

what the proponent claims. Id. A court’s determination of authenticity will not be

disturbed absent a clear abuse of discretion. In Pyles-Knutzen v. Board of County

Com'rs of County of Pitkin, 781 P.2d 164, 168 (Colo.App.1989), the defendant sought

to have a pre-accident medical record admitted on its own merit. The trial court found

the records did not meet the requirement of C.R.E. 901. Since the defendant was not

able to lay a proper foundation, the court did not abuse its discretion in refusing the

report. Id.

Here, Judge Vannoy alerted Plaintiffs to the requirement of document

authentication several times. During trial, he noted that health care providers, not

Suleyman, prepared and kept the medical records. (1, 81:19-21.) Suleyman did not have

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personal knowledge of the contents and could not testify about the filing system. (1,

81:21-23.) Bekirova could not lay the foundation for medical records through Suleyman

because he did not have the required knowledge. (1, 82:8-10.)

Plaintiffs, as the proponent of the evidence, bore the burden of proving

authenticity. At that point, Plaintiffs could have, but did not, raise the issue of self-

authentication. As in Pyles-Knutzen, Judge Vannoy considered the issue of authenticity,

and found Plaintiffs had not established the records were properly authenticated.

Perhaps Judge Vannoy could have found the documents self-authenticating, under other

rules of evidence. However, this is only one of many results that could have occurred.

Since his decision was based on reasons set forth in the record and on established facts,

his ruling did not “exceeded the bounds of the rationally available choices.” Garrigan

v. Bowen, 243 P.3d at 241. Therefore, Judge Vannoy did not abuse his discretion in

excluding the records based on lack of authentication.

Anderson also objected to the admissibility of Plaintiffs’ medical records on the

grounds that they included expert opinions. Judge Vannoy noted the records likely

contained expert opinions. (1, 81:24-25.)

A lay witness may testify broadly to any opinions or inferences that are (a)

rationally based on the perception of the witness, (b) helpful to clearly understand the

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witness's testimony or the determination of a fact in issue, and (c) not based on

scientific, technical, or other specialized knowledge within the scope of C.R.E. 702.

Specialized Grading Enter., Inc. v. Goodland Constr., Inc., 181 P.3d 352, 357

(Colo.App. 2007).

Only expert witnesses are permitted to testify concerning matters of scientific,

technical, or other specialized knowledge that will assist the trier of fact to determine

a fact in issue. CRE 702. Plaintiffs did not seek to have experts testify about Plaintiffs’

claimed medical conditions. The records were not redacted to remove expert opinions.

Since the records included expert opinions for which there was no expert to testify,

Judge Vannoy did not abuse his discretion in excluding the medical records on this

separate ground.

Finally, even if Plaintiffs had met the prerequisite of medical record authentication

and overcome the issue of expert opinion, their argument regarding admissibility fails.

The records are hearsay without an exception. Plaintiffs only argument was the records

were admissible because they pertained to Plaintiffs. Judge Vannoy set forth the rules

of hearsay numerous times. For the first time on appeal, Plaintiffs argue C.R.E. 807

applied. C.R.E. 807 prohibits admission under the section unless the proponent made

its intention known to the adverse party sufficiently in advance of trial so the adverse

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party had time to prepare to meet it. Trial courts have “considerable discretion” in

determining evidence admissibility, including application of the residual hearsay

exception. People v. Fuller, 788 P.2d 741 (Colo. 1990). There is no basis upon which

to argue the Judge’s failure to save them from their own errors by fiat was an abuse of

discretion.

The witness and documentary evidence was excluded because Plaintiffs failed to

reasonably inform themselves of basic procedural and evidentiary requirements

applicable to them as pro se litigants. Judge Vannoy acted within his discretion to

exclude this evidence; his decision should be affirmed.

E. Plaintiffs Have Not Showed Substantial, Prejudicial Error as a Result of the

Omission of an Economic Damage Instruction Based on Damage to the

Vehicle, Where They Presented No Evidence of That Damage

A trial court has substantial discretion to determine the form and style of jury

instructions, and unless the trial court has abused its discretion, the appellate courts will

not reverse the trial court’s decision. Woznicki v. Musick, 119 P.3d 567, 573

(Colo.App. 2005). Only when evidence supports a jury instruction is a party entitled

to it. Melton By and Through Melton v. Larrabee, 832 P.2d 1069, 1072 (Colo.App.

1992). There must be more than a “mere scintilla of evidence to support an instruction.”

Id. Sufficient competent evidence is required. Schmutz v. Bolles, 800 P.2d 1307 (Colo.

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1990). Any element of damages for which there is insufficient evidence must be

omitted. Barter v. Machinery & Supply Co. V. Muchow, 453 P.2d 804 (Colo. 1969);

Stahl v. Cooper, 190 P.2d 891 (Colo. 1984).

Even if this Court finds that Plaintiffs had no obligation to preserve the issue,

Judge Vannoy did not abuse his discretion in omitting the economic damages jury

instruction. There was no evidence at trial of actual amount of damage to Plaintiffs’

vehicle. Plaintiffs said they did not repair the vehicle, they traded it in. The police

officer did not provide an estimate of the amount of damage to Plaintiffs’ vehicle.

Suleyman later claimed he obtained an estimate from a repair shop for $1,400, but did

not seek to have that estimate admitted. (1, 76:9-11.)

No evidence beyond mere speculation as to the amount of damage to Plaintiffs’

vehicle was presented at trial. The jury must base its findings of fact on probabilities,

not possibilities. Given the speculative nature of testimony about the amount of

damages, the jury would be left to consider only possibilities. Therefore, Judge

Vannoy’s decision was proper.

F. Plaintiffs Presented No Evidence of Amounts of Past or Future Medical

Bills and Expenses; Therefore, Judge Vannoy Acted Properly in Granting

Anderson’s Motion for Directed Verdict as to Those Claims

C.R.C.P. 50 permits a party to move for a directed verdict at the close of

39

evidence offered by the opponent. When a party moves for a directed verdict, the trial

court must consider whether the jury could conclude the proponent of a claim

established each element of a claim by a preponderance of the evidence. Id. Where the

issue raised on a directed verdict is one of law, review is de novo. Omedelena v.

Denver Options, Inc., 60 P.3d 717, 722 (Colo.App. 2002). However, where the motion

concerns a question of fact, appellate courts consider whether the evidence, viewed in

the light most favorable to the nonmoving party, “compels the conclusion that

reasonable jurors could not disagree and that no evidence or inference [therefrom] has

been received at trial upon which a verdict against the moving party could be sustained.”

Reigel v. SavaSeniorCare L.L.C., 2011 WL 6091709, 3 (Colo.App. 2011).

After Plaintiffs rested their case, Anderson moved for a directed verdict on the

issue of Plaintiffs’ past and future medical expenses. (2, 75:21-22.) There was

testimony that Suleyman had Medicaid and Bekirova had CICP, both with co-pays. (2,

75:20-25; 76:1.) There was also testimony about additional charges for some

procedures. (2, 76:1-2.) Yet, there is no expert testimony to establish the necessity of

those procedures; how many times Plaintiffs visited the doctor; how many times

Plaintiffs paid their co-pays; or regarding the actual amounts for past or future medical

expenses. (2, 76:3-8.) Also, there is no testimony about future medical needs or

potential future medical expenses. (2, 76:8-10.)

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The Court gave Plaintiffs the opportunity to respond. Mr. Suleyman stated if he

needs surgery, his future treatment is approximately $125,000 and then there will be

after surgery treatment. (2, 76:16-18.) Bekirova stated she was not able to present her

evidence because Anderson objected to everything she tried to get into evidence. (2,

76:21-23.) In ruling, the Court reminded Plaintiffs of its prior warning regarding the

difficulty of proving their case and evidentiary challenges. (2, 77:7-10.) While

Suleyman told the Judge it was going to cost over $100,000 to have surgery, he laid no

foundation for this conclusion and there was no evidence in front of the jury to support

it. (2, 78:3-6.) No doctor stated surgery was necessary and no doctor provided a

reasonable figure for the procedure. Therefore, there was no evidence to support that

claim. (2, 78:6-10.)

Regarding past treatment, Judge Vannoy noted there was no evidence as to what

Plaintiffs paid anybody, whether co-payment, deductible or out-of-pocket expense. (2,

78:11-14.) There was no testimony regarding what Plaintiffs paid for the doctors. (2,

78:14-15.) Plaintiffs probably could have, but did not, testify about out-of-pocket

expenses for medical care. (2, 78:14-18.) Since the evidence was not presented to the

jury, Plaintiffs did not prove that aspect of their damages. (2, 78:19-20.)

Based on this observation, the Court granted the directed verdict as to that

41

element of economic damages. (2, 78:20-22.) Suleyman again objected, stating over

the past 5 years, the medical cost is close to $22,000. (2, 78:24-25.) He stated he had

a bill for that amount. (2, 78:25 and 79:1.) The Court explained, again, that Suleyman

had not told that to the jury. (2, 79:3-6.) Judge Vannoy granted the directed verdict in

the area of medical expenses because Plaintiffs had not offered any specific evidence

of medical expenses, either past medical expenses or medical expenses they would

reasonably expect to pay in the future. (2, 79:11-14.)

During their case in chief, Plaintiffs presented no evidence in support of medical

expenses that were reasonable, necessary and accident related. They did not identify one

co-payment made to even one provider for what Plaintiffs claim to be accident related

treatment. For these reasons, reasonable jurors could not have made an award for past

or future medical expenses. The ruling was proper.

VI. CONCLUSION

Judge Vannoy did not abuse his discretion in excluding documentary and

testimonial evidence and applied the proper legal standard regarding the two newly

disclosed witnesses. Judge Vannoy did not abuse his discretion in refusing to permit an

economic damages jury instruction where no actual evidence of a specific economic loss

was provided by Plaintiffs in their case in chief.

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Judge Vannoy properly granted a directed verdict on the claim for past and future

medical expenses because Plaintiffs did to produce any evidence in support of that

claim. Finally, Judge Vannoy applied the proper legal standard when precluding witness

testimony. Plaintiffs’ only real complaint, that they did not know how to proceed

because they were pro se, does not save them from the errors they committed. No

reversible error was committed and the trial court judgment should be affirmed.

DATED: August 17, 2012

Respectfully submitted,

The duly signed original held in the file located at

Walberg, Tucker & Holmes, P.C.

By:

Wendelyn K. Walberg, #13056

Matthew A. Holmes, #20849

Kristin A. Allan, #36808

WALBERG, TUCKER & HOLMES, P.C.

Attorneys for Defendant

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was FILED AND SERVED ELECTRONICALLY

via LexisNexis, the duly signed original held in the file located at Walberg, Tucker & Holmes, P.C.,

on August 17, 2012, copies addressed to:

Alice Warren-Gregory, Esq. #43264

Paul Schwartz, Esq.

Shoemaker Ghiselli & Schwartz LLC

1811 Pearl Street

Boulder, CO 80302

Attorneys for Defendants-Appellants

The duly signed original held in the file located at

Walberg, Tucker & Holmes, P.C.

/s/ Lynda M. Ahrendt

Lynda M. Ahrendt

43