COLORADO COURT OF APPEALS 2016COA91 

Court of Appeals No. 14CA1259 

City and County of Denver District Court No. 12CV2482 

Honorable Herbert L. Stern, III, Judge 

Martin Acierno, by and through his Co-Guardians, Kathleen Acierno and 

Cheryl Acierno, 

Plaintiff-Appellant and Cross-Appellee, 

v. 

Garyfallos Garyfallou, M.D., 

Defendant-Appellee and Cross-Appellant. 

JUDGMENT AFFIRMED, ORDER REVERSED, 

AND CASE REMANDED WITH DIRECTIONS 

Division III 

Opinion by JUDGE BOORAS 

Webb and J. Jones, JJ., concur 

Announced June 16, 2016 

Leventhal & Puga, P.C., Jim Leventhal, Hollynd Hoskins, David P. Masons, 

Benjamin I. Sachs, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee 

Hershey Decker, PLLC, C. Todd Drake, Lone Tree, Colorado, for DefendantAppellee and Cross-Appellant 
1 

¶ 1 Plaintiff, Martin Acierno, by and through his co-guardians, 

Kathleen Acierno and Cheryl Acierno, appeals the trial court’s 

judgment entered on a jury verdict in favor of defendant, Garyfallos 

Garyfallou, M.D. (Dr. Garyfallou). The trial court’s judgment is 

affirmed. 

¶ 2 Dr. Garyfallou cross-appeals the trial court’s order denying, in 

its entirety, his motion for costs. He contends that under section 

13-16-105, C.R.S. 2015, an award of costs to a prevailing defendant 

is mandatory. We agree and therefore reverse the trial court’s order 

denying Dr. Garyfallou’s request for costs. 

I. Background 

¶ 3 In 2010, Mr. Acierno was transported by ambulance to St. 

Anthony’s North hospital with complaints of slurred speech and 

numbness in his left arm. 

¶ 4 When Mr. Acierno arrived at the hospital, he was examined by 

Dr. Garyfallou, an emergency room physician. By that time, many 

of Mr. Acierno’s symptoms had dissipated. However, because Mr. 

Acierno had suffered an earlier stroke, Dr. Garyfallou ordered a 
2 

computerized tomography (CT) scan.1 When the CT scan showed 

no signs of a brain bleed, Dr. Garyfallou admitted Mr. Acierno to St. 

Anthony’s North and diagnosed him with a transient ischemic 

attack. Dr. Garyfallou then sent Mr. Acierno for a magnetic 

resonance imaging2 (MRI) and a magnetic resonance angiography3

(MRA). 

¶ 5 While he was in the MRI machine, Mr. Acierno exhibited 

rhythmic-like movement, intermittent left arm movement, and 

involuntary eye movement. The nurse who was performing the MRI 

called Dr. Garyfallou to examine Mr. Acierno. Dr. Garyfallou 

concluded that Mr. Acierno had most likely had a seizure, so he 

ordered seizure medicine. 

¶ 6 A radiologist interpreted the MRI and MRA images. He gave 

Dr. Garyfallou his opinion that the MRI showed “some atheroma, 

which is cholesterol, debris, chronic stuff in the blood vessels, 

and/or thrombus, which is a clot.” By that time, Dr. Garyfallou’s 

 

1 A computerized tomography is a medical imaging procedure that 

utilizes cross-sectional images for diagnostic purposes. 

2 Magnetic resonance imaging refers to a procedure by which 

doctors can view internal structures of the body in detail, including 

the brain. 

3 Magnetic resonance angiography refers to a method of imaging 

that allows a doctor to view blood vessels. 
3 

shift had ended, so he passed off Mr. Acierno’s care to another 

physician. 

¶ 7 Shortly thereafter, Mr. Acierno was transferred to the primary 

stroke center at St. Anthony’s Central hospital for a stroke 

assessment. 

¶ 8 There, a neurologist diagnosed Mr. Acierno with a brainstem 

stroke. The stroke resulted in severe brain damage: Mr. Acierno 

now has quadriplegia and “locked in” syndrome, meaning that 

although he is cognitively intact, it is unlikely that he will regain 

any meaningful ability to move his body. 

¶ 9 Mr. Acierno filed a medical malpractice suit against Dr. 

Garyfallou, his other treating physicians, and both hospitals. With 

respect to Dr. Garyfallou, Mr. Acierno alleged negligence in failing to 

diagnose a stroke that he had suffered before Dr. Garyfallou left the 

hospital. 

¶ 10 With the exception of Dr. Garyfallou, all defendants settled. 

The case then proceeded with a jury trial on Mr. Acierno’s 

negligence claims against Dr. Garyfallou. The jury returned a 

verdict in favor of Dr. Garyfallou, finding that he had not been 

negligent. 
4 

II. Mr. Acierno’s Appeal 

A. Motions for a Mistrial and a New Trial 

¶ 11 Mr. Acierno contends that the trial court erred when it denied 

his motions (1) for a mistrial based on defense counsel’s 

misconduct in closing argument and (2) for a new trial based on 

that same misconduct and other irregularities at trial. We discern 

no abuse of discretion. 

1. Additional Background 

¶ 12 Before closing argument, Mr. Acierno tendered the following 

jury instruction on the applicable standard of care: 

To determine whether such a physician’s 

conduct was negligent, you must compare that 

conduct with what a physician having and 

using the knowledge and skill of physicians 

practicing in the same specialty or holding 

themselves out as having the same special skill 

and knowledge, at the same time, would or 

would not have done under the same or 

similar circumstances. 

(Emphasis added.) Defense counsel objected to the inclusion of the 

emphasized portion of the instruction. The trial court overruled the 

objection and approved Mr. Acierno’s proposed standard of care 

instruction. 
5 

¶ 13 During closing argument, defense counsel used a PowerPoint 

slide that omitted the portion of the standard of care instruction to 

which he had previously objected. Mr. Acierno’s counsel objected to 

the slide on the basis that it was a misstatement of the applicable 

standard of care. The trial court responded, “The jury has the 

instructions. [It] can review them.” Defense counsel then made the 

following argument: “Who is the expert of the same specialty that 

came in and told you about the standard of care in this case? 

That’s Dr. Rosenberg. That’s Dr. Burcham. That’s Dr. Hoffman. 

All emergency room physicians.” 

¶ 14 Defense counsel ended his closing argument as follows: 

[Mr. Acierno’s counsel] has also argued that 

Dr. Garyfallou’s blaming people. The only 

people you heard that blamed anybody in this 

case came from the plaintiff’s side of the case. 

Dr. Futrell and Dr. Jones blamed every one of 

those defendants that settled, and they blamed 

Dr. Garyfallou. And [Mr. Acierno’s counsel], 

who retained those experts, blamed every one 

of those doctors who settled. 

There are reasons that physicians settle cases 

that don’t have anything to do with the 

standard of care. . . . Dr. Garyfallou has 

courage, conviction, and confidence. The 

courage to stand up before you and say my 

care was good. Conviction that his care was 

appropriate. And confidence that you as 
6 

jurors will see that. Confidence that these 

other reasons for settling cases, runaway 

verdicts, runaway juries, media related to 

adverse care, will not cloud your judgment[.] 

¶ 15 Mr. Acierno’s counsel objected, arguing that defense counsel’s 

comments were “completely inappropriate.” The trial court 

sustained the objection, stating that the comments were 

“completely and utterly inappropriate, appealing to the passions 

and prejudices of the jury.” It added that it was “shocked” by the 

argument. 

¶ 16 The trial court then asked Mr. Acierno’s counsel if he wanted 

the court to consider a motion for a mistrial. Mr. Acierno’s counsel 

responded that he did, and the trial court said that it would take 

the motion under consideration. 

¶ 17 The court then admonished defense counsel in front of the 

jury: “Jurors, there was an objection to [defense counsel’s] last 

comments, that objection was sustained. Those comments are to 

be utterly and completely disregarded by you. They were 

inappropriate and do not belong in this type of a proceeding.” 

¶ 18 During a recess before rebuttal closing argument, Mr. 

Acierno’s counsel made an additional record in regard to his motion 
7 

for a mistrial. He argued that defense counsel’s (1) improper 

argument and (2) misstatement of the standard of care instruction 

warranted a mistrial. Mr. Acierno’s counsel contended that the trial 

court’s previous instruction and admonition were insufficient to 

cure the prejudice stemming from defense counsel’s improper 

comments. 

¶ 19 With respect to the improper comments, the trial court said 

that it was “not sure” that its previous admonition and instruction 

had been sufficient. Regarding the standard of care instruction, the 

trial court concluded that defense counsel had presented an 

“incomplete” version of the instruction, but that Mr. Acierno’s 

counsel could “point that out on his own.” 

¶ 20 After the recess, the trial court, on its own initiative, addressed 

the jury: “Jurors, I apologize for the longer-than-anticipated break. 

I feel that I have no choice but to reiterate to you that certain of 

those comments, certain of the statements that I cautioned you 

against earlier by [defense counsel] were, in my view, beyond 

inappropriate and we’ve been discussing that.” It again instructed 

the jury that the improper comments were “to be completely and 

utterly disregarded.” 
8 

¶ 21 During rebuttal closing, Mr. Acierno’s counsel argued, 

When [defense counsel] got up and told you 

and [represented the standard of care 

instruction], he had retyped the instruction 

and misrepresented the law to you. You have 

a copy of it. 

The second paragraph, ‘To determine whether 

a physician’s conduct was negligent, you must 

compare that conduct with what a physician 

having and using the knowledge and skill of 

physicians practicing in the same specialty’ 

and that’s where he stopped, but our job is not 

to stop, our job is to make sure you have the 

law, ‘or holding themselves out as having the 

same special skill and knowledge, at the same 

time, would or would not have done under the 

same or similar circumstances.’ 

¶ 22 After trial, Mr. Acierno filed a written motion for a mistrial 

alleging defense counsel’s misconduct. He also filed a motion for a 

new trial, under C.R.C.P. 59(d). In it, he reasserted his arguments 

related to his motion for a mistrial. He also argued that a number 

of irregularities had prevented him from receiving a fair trial. 

Specifically, Mr. Acierno contended that (1) witnesses gave 

testimony at trial that differed from their deposition testimony; (2) a 

defense witness violated the trial court’s sequestration order; and 

(3) a juror slept during trial and was generally inattentive. 
9 

¶ 23 The trial court later held a hearing on Mr. Acierno’s motion for 

a mistrial, at which both parties offered extensive argument as to 

whether the court should grant the motion. 

¶ 24 Ultimately, the trial court denied Mr. Acierno’s motion for a 

mistrial. In doing so, the court concluded that it should have 

sustained Mr. Acierno’s counsel’s objection to defense counsel’s 

misstatement of the applicable standard of care. And it observed 

that defense counsel’s “use of an abbreviated [s]tandard of [c]are 

[i]nstruction was careless and/or a deliberate attempt at jury 

nullification given his earlier objection to the Court’s approved 

instruction.” But the trial court noted that it “must presume that 

the jury followed the jury instructions and the verbal corrective 

instructions presented by the Court.” It continued, “[t]herefore, 

while an extremely close call, the Court cannot find that [d]efense 

[c]ounsel’s conduct, which was calculated, deliberate, and 

knowingly improper, was so pervasive and prejudicial to undermine 

the integrity of the jury’s verdict.” 

¶ 25 The trial court also denied Mr. Acierno’s motion for a new trial 

based on the alleged irregularities. 
10 

2. Standard of Review and Applicable Law 

¶ 26 A mistrial is a drastic remedy that is warranted only when the 

prejudice to the moving party cannot be addressed by other means. 

Wark v. McClellan, 68 P.3d 574, 578 (Colo. App. 2003). 

¶ 27 A C.R.C.P. 59(d)(1) motion for a new trial may be granted when 

“[a]ny irregularity in the proceedings . . . prevented [the moving 

party] from having a fair trial.” 

¶ 28 Trial courts are in the best position to evaluate the prejudicial 

impact of misconduct by opposing counsel, see Antolovich v. Brown 

Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007), and of any 

irregularities at trial, see First Nat’l Bank v. Campbell, 198 Colo. 

344, 346, 599 P.2d 915, 917 (1979) (“Whether or not a new trial is 

granted is usually a matter for the sound discretion of the trial 

judge whose presence and observation at the trial better equip him 

for making this decision.”). Accordingly, we review for an abuse of 

discretion the trial court’s denial of Mr. Acierno’s motions for a 

mistrial and a new trial. Antolovich, 183 P.3d at 608; Wark, 68 P.3d 

at 578. A trial court abuses its discretion only if its decision was 

manifestly arbitrary, unreasonable, or unfair, or based on an 
11 

erroneous understanding or application of the law. See, e.g., CoreMark Midcontinent Inc. v. Sonitrol Corp., 2016 COA 22, ¶ 28. 

3. Discussion 

a. Motion for a Mistrial 

¶ 29 Mr. Acierno asserts that defense counsel’s (1) misstatement of 

the trial court’s jury instruction on the applicable standard of care 

and (2) improper comments related to “runaway juries, runaway 

verdicts, and adverse media” warranted a mistrial. 

¶ 30 Although we agree with the trial court that this case presents 

“an extremely close call,” under the circumstances, we cannot 

conclude that the trial court abused its discretion in denying Mr. 

Acierno’s motion. 

¶ 31 First, the trial court gave Mr. Acierno’s motion for a mistrial 

careful consideration. See id. (a trial court abuses its discretion 

when its decision is manifestly arbitrary, unreasonable, or unfair). 

Mr. Acierno raised his motion orally after defense counsel finished 

his closing argument. The trial court took the motion under 

advisement, and Mr. Acierno later filed a written motion, to which 

defense counsel filed a response. The court then held a post-trial 

hearing solely on the issue of whether a mistrial was warranted. 
12 

Both parties were given an opportunity to present argument and 

answer the trial court’s questions related to the parties’ filings. 

Thus, based on the procedural posture in which the trial court 

reached its decision, it is evident that the court carefully considered 

Mr. Acierno’s motion for a mistrial. In other words, its decision was 

not arbitrary. See id.

¶ 32 Second, with respect to defense counsel’s misstatement of the 

standard of care instruction, we agree, for the following reasons, 

that a mistrial was unnecessary. See Wark, 68 P.3d at 578. 

 Before closing arguments, the trial court instructed the jury 

(1) on the complete version of the standard of care and (2) that 

arguments of counsel are not evidence. As the trial court 

noted, absent evidence to the contrary, we presume that the 

jury followed those instructions. Qwest Servs. Corp. v. Blood, 

252 P.3d 1071, 1088 (Colo. 2011). 

 Although the trial court later concluded that it should have 

sustained the objection to the incomplete instruction, when 

the objection was made, the court noted that the jury had, and 

could read, a complete version of the standard of care 

instruction. See id.
13 

 After defense counsel presented the incomplete standard of 

care instruction, he referred to the testimony of Mr. Acierno’s 

neurology experts. 

 During the recess after defense counsel’s closing argument, 

the trial court told Mr. Acierno’s counsel that he was free to 

direct the jury’s attention to defense counsel’s incomplete 

representation of the standard of care instruction. Mr. 

Acierno’s counsel did so. Specifically, in rebuttal closing, he 

told the jury that defense counsel “misrepresented the law” 

and then read the complete instruction to the jury highlighting 

the portion that had been omitted by defense counsel. See 

Wark, 68 P.3d at 578 (the drastic remedy of a mistrial is 

warranted only where the prejudice to the moving party 

cannot be remedied by alternative measures). 

¶ 33 Third, with respect to defense counsel’s statements in closing 

argument, we similarly conclude that a mistrial was not warranted 

because the trial court’s remedial actions, along with its 

instructions to the jury, were sufficient to address any prejudice to 

Mr. Acierno. See id.
14 

¶ 34 Indeed, the trial court sustained Mr. Acierno’s counsel’s 

objection to defense counsel’s improper remarks. It then 

admonished defense counsel in front of the jury, twice, telling the 

jury it was to “completely and utterly disregard” defense counsel’s 

remarks because they were “inappropriate and d[id] not belong in 

this type of a proceeding.” See Cook Inv. Co. v. Seven-Eleven Coffee 

Shop, Inc., 841 P.2d 333, 335 (Colo. App. 1992) (trial court did not 

abuse its discretion in denying a motion for a mistrial where “an 

immediate curative instruction” was given). 

¶ 35 We acknowledge that during the recess that followed defense 

counsel’s closing argument, the trial court agreed that it was “not 

sure” that its previous admonishment and instruction were 

sufficient to cure the prejudice stemming from defense counsel’s 

improper remarks. But after the recess, the trial court again 

admonished defense counsel in front of the jury, and instructed the 

jury that it was to disregard counsel’s statements. See id. And 

there is nothing in the record that rebuts the presumption that the 

jury followed the trial court’s instructions. See Qwest, 252 P.3d at 

1088. 
15 

¶ 36 However, Mr. Acierno contends that the trial court’s curative 

instructions were insufficient because they did not identify the 

specific remarks that the jury was instructed to disregard. We are 

not persuaded. 

¶ 37 As Mr. Acierno’s counsel argued below, and has asserted in 

this appeal, the jury reacted strongly to defense counsel’s improper 

remarks and he made an immediate objection. Accordingly, we 

cannot conclude that the jury would have been unable to identify 

the improper comments the trial court instructed it to disregard. 

¶ 38 Mr. Acierno also cites four out-of-state cases for the 

proposition that defense counsel’s improper comments warranted a 

mistrial. See Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla. 

Dist. Ct. App. 1996); Boren v. BOC Grp., Inc., 895 N.E.2d 53 (Ill. 

App. Ct. 2008); Lioce v. Cohen, 174 P.3d 970 (Nev. 2008); Boyle v. 

Christensen, 251 P.3d 810 (Utah 2011). However, in each of those 

cases, the attorneys’ improper remarks were much more pervasive 

than defense counsel’s statements in this case. See, e.g., Lioce, 174 

P.3d at 974-78 (defense counsel made the same improper closing 

argument in four related cases, which he refined “over time”). 

Moreover, in three out of four of those cases, no admonition or 
16 

curative instruction was given by the trial courts. See Norman, 668 

So. 2d at 1021-224; Lioce, 174 P.3d at 974-78; Boyle, 251 P.3d at 

813. And in Boren, the appellate court was reviewing a trial court’s 

decision to grant a new trial, so that case is procedurally inapposite. 

895 N.E.2d at 59-60. Accordingly, all four cases are 

distinguishable; Mr. Acierno’s reliance on them is therefore 

misplaced. 

¶ 39 To be clear, we do not condone defense counsel’s misconduct. 

In the end, however, as the trial court described it, this was “an 

extremely close call.” Had we been in the trial court’s position, we 

might have reached a different result. But that is not grounds for 

reversing the trial court’s discretionary decision. To the contrary, 

deference to the trial court’s decision is important because it was in 

the best position to evaluate the prejudicial impact of defense 

counsel’s misconduct in the context of the entire trial. See 

Antolovich, 183 P.3d at 604. 

 

4 In addition to the improper argument basis, the appellate court 

also reversed based on “improper contact” during trial between an 

agent of defendant’s insurer and his brother, who was the foreman 

of the jury. Norman v. Gloria Farms, Inc., 668 So. 2d 1016, 1018-19 

(Fla. Dist. Ct. App. 1996). 
17 

b. Motion for a New Trial 

¶ 40 We have concluded that the trial court did not abuse its 

discretion in denying Mr. Acierno’s motion for a mistrial based on 

defense counsel’s (1) misstatement of the standard of care 

instruction and (2) improper remarks to the jury. For the same 

reasons, we conclude that the trial court did not abuse its 

discretion in denying Mr. Acierno’s request for a new trial on those 

grounds. 

¶ 41 The remaining question, then, is whether the other alleged 

irregularities, in addition to defense counsel’s misconduct, required 

a new trial. For the following reasons, we conclude that they did 

not. 

¶ 42 First, Mr. Acierno contends that a new trial was required 

because two witnesses gave testimony that differed from their 

testimony in prior depositions. Mr. Acierno asserts that he 

preserved this argument by (1) objecting to the changed testimony 

and (2) filing a motion objecting to defendant’s request to meet ex 

parte with one of Mr. Acierno’s treating physicians. We disagree. 

Mr. Acierno’s counsel made no objection when he elicited the 

alleged changed testimony from the two witnesses. And his earlier 
18 

motion objecting to the requested ex parte meeting would not have 

alerted the trial court to his argument that one of these witnesses 

had changed his testimony, purportedly as a result of the meeting. 

¶ 43 Accordingly, the trial court did not err in denying Mr. Acierno’s 

motion for a new trial on the basis of changed witness testimony 

because that argument was not preserved by a contemporaneous 

objection. See Mahan v. Capitol Hill Internal Med. P.C., 151 P.3d 

685, 689 (Colo. App. 2006) (“Capitol Hill’s counsel did not object to 

this statement at trial. Therefore, the objection was waived, and the 

trial court’s denial of the motion for a new trial based on the 

statement of counsel was not error.”), superseded by statute as 

recognized in Carruthers v. Carrier Access Corp., 251 P.3d 1199 

(Colo. App. 2010); see also Antolovich, 183 P.3d at 608 (the 

plaintiffs did not “offer[] a contemporaneous objection to” alleged 

“changed witness testimony”; “[a]ccordingly, their claims of surprise 

and irregularity are waived, and we will not address them on 

appeal”). 

¶ 44 In any event, even if we assume that Mr. Acierno’s counsel 

preserved this issue, as the trial court noted, changes in witnesses’ 

testimony “are not unusual,” Mr. Acierno’s counsel “impeached 
19 

[those] witnesses,” and it was “the jury’s role to determine 

credibility.” In other words, even if we assume the witnesses 

changed their testimony, such changed testimony did not constitute 

an irregularity that was sufficiently prejudicial to warrant a new 

trial. See First Nat’l Bank, 198 Colo. at 346, 599 P.2d at 916-17 

(trial judges’ “presence and observation at . . . trial better equip[s]” 

them for evaluating whether a party was “prevented from having a 

fair trial”) (citations omitted). 

¶ 45 Second, Mr. Acierno contends that a defense witness violated 

the trial court’s sequestration order. But the trial court found that 

the witness “stated credibly that he and his attorney were 

discussing house remodeling and the weather” and that Mr. Acierno 

did not “present additional evidence” in connection with his request 

for a new trial. In our view, the trial court made a factual finding 

that its sequestration order was not violated. Cf. People v. 

Melendez, 102 P.3d 315, 319 (Colo. 2004) (“In proper 

circumstances, the trial court may sequester witnesses, find that a 

witness has violated the sequestration order, and impose sanctions 

for the sequestration violation.”) (emphasis added). And Mr. 

Acierno has not pointed to anything in the record establishing that 
20 

the court’s finding was clearly erroneous. See Legro v. Robinson, 

2015 COA 183, ¶ 15 (the court of appeals will not disturb a trial 

court’s finding of fact unless it is clearly erroneous). Accordingly, 

the trial court did not err in denying Mr. Acierno’s motion for a new 

trial. 

¶ 46 Lastly, Mr. Acierno contends that a new trial was warranted 

because a juror slept through important portions of trial. As with 

the claims of changed testimony, however, Mr. Acierno raised this 

issue for the first time in his motion for a new trial. Thus, the trial 

court did not err in denying the motion on that basis. See Mahan, 

151 P.3d at 689. 

¶ 47 Nonetheless, we note that the trial court found that Mr. 

Acierno failed to present sufficient evidence “to show that [the juror] 

missed crucial parts of the trial.” And again, Mr. Acierno has not 

cited anything in the record to show that the trial court’s finding 

was clearly erroneous. See Legro, ¶ 15. Mr. Acierno’s background 

section contains a subheading titled “A [j]uror sleeps through 

critical portions of the evidence.” But in the statements of fact that 

follow, Mr. Acierno fails to allege that the juror actually slept during 
21 

trial, let alone cite to portions of trial transcript supporting such an 

assertion. 

¶ 48 In sum, we conclude that, under the circumstances, the trial 

court did not abuse its discretion in denying Mr. Acierno’s motion 

for a new trial.5

B. Ex Parte Meeting 

¶ 49 Mr. Acierno contends that the trial court erred when it allowed 

defense counsel to meet ex parte with the radiologist who 

interpreted Mr. Acierno’s MRI and MRA results. We are not 

persuaded. 

1. Standard of Review and Applicable Law 

¶ 50 We review rulings on issues of pre-trial discovery for an abuse 

of discretion. See Reutter v. Weber, 179 P.3d 977, 984 (Colo. 2007). 

A trial court abuses its discretion if its ruling was manifestly 

arbitrary, unreasonable, or unfair, “or based on an erroneous 

understanding or application of the law.” Core-Mark, ¶ 28. 

 

5 To the extent Mr. Acierno contends, in his reply, that the trial 

court’s decision to allow defense counsel to meet ex parte with Mr. 

Acierno’s radiologist provided a basis for granting a new trial, we do 

not address arguments raised for the first time in a reply brief. See 

Rogers v. Forest City Stapleton, Inc., 2015 COA 167M, ¶ 38. 
22 

¶ 51 Under Colorado law, communications between patients and 

their physicians are generally privileged. Reutter, 179 P.3d at 980. 

However, the General Assembly has provided a statutory exception 

to that general rule: the “privilege does not apply to a medical 

provider ‘who was in consultation with a physician, surgeon, or 

registered professional nurse being sued . . . on the case out of 

which said suit arises.’” Id. at 981 (quoting § 13-90-107(1)(d)(II), 

C.R.S. 2015) (emphasis in original). 

¶ 52 Where the statutory exception to the patient-physician 

privilege applies, a trial court may grant a party’s request to meet 

with a treating physician ex parte. See id. at 980. By “permitting 

informal communications between a defense attorney and a 

plaintiff’s treating physician,” the discovery process is promoted “by 

assuring that both parties have access to an informal, efficient, and 

cost-effective method for discovering facts relevant to the 

proceedings.” Samms v. Dist. Court, 908 P.2d 520, 526 

(Colo. 1995). 

¶ 53 Nevertheless, under some circumstances, trial courts should 

take appropriate measures to protect against the disclosure of 

residually privileged information, i.e., “medical information about 
23 

[the patient] that was unrelated to the course of treatment . . . 

forming the basis of the malpractice action.” Reutter, 179 P.3d at 

980. “Where the risk that residually privileged information will be 

divulged during an interview is relatively high, the preferred method 

of protecting against divulgement is to provide the plaintiff-patient 

with prior notice and an opportunity to attend the interview.” Id. at 

983. However, where a “trial court determines that the non-party 

medical providers possess no residually privileged information, the 

trial court does not abuse its discretion by refusing to require that 

the plaintiff be permitted to attend the interviews.” Id. at 980. 

2. Discussion 

¶ 54 In his response objecting to Dr. Garyfallou’s motion to meet ex 

parte with the radiologist, Mr. Acierno asserted that there was “a 

significant risk of disclosure of [Mr. Acierno]’s residually privileged 

health information.” Mr. Acierno did not, however, identify any 

information that should have been protected against disclosure. 

Accordingly, the trial court found that “the risk of [the witness] 

divulging residually privileged information is not sufficiently high 

enough to entitle [p]laintiff[] to attend the informal ex parte meeting 

[d]efendants seek.” Even so, the trial court granted the motion with 
24 

the following condition: “Defendants’ informal questioning is 

confined to matters that are not subject to physician-patient 

privilege[.]” 

¶ 55 On appeal, Mr. Acierno does not assert that residually 

privileged information was divulged. 

¶ 56 Accordingly, the trial court did not abuse its discretion in 

allowing defense counsel to meet ex parte with Mr. Acierno’s 

radiologist. See id. at 982 (a trial court may allow plaintiff’s counsel 

to attend a defendant’s interviews “with non-party medical 

providers where the risk is high that residually privileged 

information will be divulged”) (emphasis added). 

¶ 57 Nevertheless, Mr. Acierno argues that the trial court should 

have placed additional limitations on the informal, ex parte meeting 

to prevent defense counsel from unduly influencing the radiologist’s 

testimony. We disagree. 

¶ 58 Even if we assume that undue influence is a proper basis for 

placing limitations on a party’s request to meet ex parte with a nonparty treating physician, Mr. Acierno has not cited anything in the 

record evidencing such influence. Instead, Mr. Acierno would have 

us infer undue influence from (1) the fact that the radiologist gave 
25 

testimony at trial that differed slightly from his testimony in a 

deposition and (2) defense counsel’s misconduct in closing 

argument. 

¶ 59 With respect to the changed testimony, Mr. Acierno asserts 

that he was “sandbagged” when the radiologist testified at trial that 

he received a telephone call from Dr. Garyfallou while Mr. Acierno 

was in the MRI machine exhibiting symptoms of a stroke or seizure. 

The record does not support Mr. Acierno’s assertion because, as Dr. 

Garyfallou points out, the radiologist’s trial testimony was generally 

consistent with his testimony in the deposition: “I don’t remember a 

lot of detail, but I remember that when we talked either during or 

after the MRI, he — the patient was having some difficulty during 

his MRI.” (Emphasis added.) 

¶ 60 In any event, as the trial court noted in its denial of Mr. 

Acierno’s motion for a new trial, to the extent there may have been 

inconsistencies between the trial and deposition testimony, Mr. 

Acierno was free to impeach the radiologist on that basis. 

C. Pro Rata Liability 

¶ 61 Mr. Acierno contends that the trial court erred in denying his 

motion for a directed verdict on Dr. Garyfallou’s affirmative defense 
26 

of pro rata liability. Specifically, he asserts that a directed verdict 

should have been granted because defense counsel’s statement in 

closing argument — that Dr. Garyfallou was “not blaming any of the 

settling [d]efendants” — constituted a judicial admission 

disclaiming pro rata liability. We disagree. 

¶ 62 “A judicial admission is a formal, deliberate declaration which 

a party or his attorney makes in a judicial proceeding for the 

purpose of dispensing with proof of formal matters or of facts about 

which there is no real dispute.” Kempter v. Hurd, 713 P.2d 1274, 

1279 (Colo. 1986). 

¶ 63 Although a party can make a judicial admission in closing 

argument, there is no evidence in this case that defense counsel’s 

statement was deliberate and made with the intent of “dispensing 

with proof” on the issue of pro rata liability. See id. Indeed, it 

would have made little sense to do so because pro rata liability was 

an affirmative defense asserted by Dr. Garyfallou. Thus, read in 

context, defense counsel’s statement was more likely intended to 

rebut Mr. Acierno’s counsel’s statement in closing argument that 

Dr. Garyfallou was blaming the other physicians who had 

previously settled. 
27 

¶ 64 In any event, the jury concluded that Dr. Garyfallou did not 

breach the applicable standard of care. Accordingly, any error with 

respect to the trial court’s denial of Mr. Acierno’s motion for 

directed verdict on pro rata liability was harmless because such an 

error related only to apportionment of damages.6 See Leaf v. 

Beihoffer, 2014 COA 117, ¶ 12 (“If a plaintiff fails to establish any 

one of [the negligence] elements, any errors related to other 

elements are necessarily harmless because the plaintiff cannot 

prevail in any event.”). 

 

6 Citing Paris v. Dance, 194 P.3d 404, 406-07 (Colo. App. 2008), 

superseded by statute as stated in Reid v. Berkowitz, 2013 COA 

110M, Mr. Acierno argues that the alleged error was not harmless. 

In Paris, the jury concluded that (1) while the plaintiff had injuries; 

(2) one set of defendants “was [not] at fault”; and (3) although the 

other defendant “was negligent, it did not cause any of [the] 

plaintiff’s injuries.” Id. at 406. Thus, because the jury did not fill 

out the special verdict form apportioning damages, the Paris

division could not conclude that an error was harmless with respect 

to the designation of the non-party. In this case, however, the jury 

concluded that Dr. Garyfallou did not breach the applicable 

standard of care, so any error with respect to apportionment of 

damages — and evidence introduced in support thereof — was 

harmless. See Leaf v. Beihoffer, 2014 COA 117, ¶ 12. Accordingly, 

Mr. Acierno’s reliance on Paris is misplaced. 
28 

D. Cumulative Error 

¶ 65 Relying on the doctrine of cumulative error, Mr. Acierno 

contends that we should reverse the judgment in favor of Dr. 

Garyfallou and remand for a new trial. 

¶ 66 The doctrine of cumulative error, although applied regularly in 

criminal appeals, has not been extended to civil cases. See Neher v. 

Neher, 2015 COA 103, ¶ 66. Like the Neher division, we decline to 

apply it here because “[s]uch a significant expansion of 

precedent . . . is more properly the province of our supreme court.” 

Id.

¶ 67 Nevertheless, we have rejected each of Mr. Acierno’s 

contentions of error. So even if we assume that the doctrine of 

cumulative error should be extended to civil cases, it would not 

provide a basis for reversal in this case. 

III. Dr. Garyfallou’s Cross-Appeal 

¶ 68 Dr. Garyfallou contends that the trial court erred when it 

denied his motion seeking an award of costs against Mr. Acierno. 

He argues that such an award was mandatory under section 

13-16-105. We agree. 
29 

A. Additional Background 

¶ 69 Dr. Garyfallou moved for an award of $165,232.82 in costs. 

He argued that he was entitled to recover his costs under section 

13-16-105 because the jury had returned a verdict against Mr. 

Acierno. 

¶ 70 Mr. Acierno objected to Dr. Garyfallou’s motion. He contended 

that (1) an award of costs would be unreasonable under the 

circumstances because he was indigent and (2) the amount of costs 

sought was unreasonable. Mr. Acierno’s legal guardians filed an 

accompanying affidavit to support Mr. Acierno’s claim of indigence 

and the unreasonableness of any award. 

¶ 71 The trial court denied Dr. Garyfallou’s request for costs, noting 

that (1) Mr. Acierno has “locked-in syndrome” meaning he will be 

“reliant, 24/7, on caregivers for his daily needs”; (2) Mr. Acierno 

“will never be able to earn an income”; and (3) any award of costs 

would be against Mr. Acierno personally. The court also observed 

that although Mr. Acierno had reached settlements with other 

defendants, that money had been placed in a trust “to provide for 

[p]laintiff’s medical needs and daily care,” and “[p]laintiff needs 

every dollar of [the money in the trust] for his survival.” 
30 

B. Standard of Review and Applicable Law 

¶ 72 “Whether a statute mandates an award of costs or attorney 

fees is a question of statutory interpretation and is thus a question 

of law we review de novo.” Crandall v. City & Cty. of Denver, 238 

P.3d 659, 661 (Colo. 2010). 

¶ 73 Our goal in interpreting a statute is to ascertain and give effect 

to the intent of the General Assembly. Id. To do so, we first look to 

the plain language of the statute at issue, “giving words and 

phrases their commonly accepted and understood meaning.” Id. at 

662 (quoting Colo. Dep’t of Revenue v. Garner, 66 P.3d 106, 109 

(Colo. 2003)). If the language is clear and unambiguous, our 

analysis ends. But if the language is ambiguous, we resort to other 

evidence and rules of statutory construction. Id.

C. Discussion 

¶ 74 Section 13-16-105 provides: 

If any person sues in any court of record in 

this state in any action wherein the plaintiff or 

demandant might have costs in case judgment 

is given for him and he is nonprossed, suffers 

a discontinuance, is nonsuited after 

appearance of the defendant, or a verdict is 

passed against him, then the defendant shall 

have judgment to recover his costs against the 

plaintiff, except against executors or 
31 

administrators prosecuting in the right of their 

testator or intestate, or demandant, to be 

taxed; and the same shall be recovered of the 

plaintiff or demandant, by like process as the 

plaintiff or demandant might have had against 

the defendant, in case judgment has been 

given for the plaintiff or demandant. 

(Emphasis added.) 

¶ 75 Based on the plain language of section 13-16-105, we 

conclude that an award of costs to a defendant is mandatory when 

(1) the plaintiff would be entitled to costs if “judgment [had been] 

given for him” and (2) judgment is entered in favor of the defendant. 

¶ 76 First, section 13-16-105 states that a defendant “shall have 

judgment to recover his costs.” (Emphasis added.) Ordinarily, 

“[t]he word ‘shall’ connotes a mandatory requirement.” Willhite v. 

Rodriguez-Cera, 2012 CO 29, ¶ 17. And nothing in section 

13-16-105 provides a reason for departing from the usual 

construction of the word “shall.” See Crandall, 238 P.3d at 663 

(“The statutory language contains no words that suggest anything 

other than a mandatory award.”); compare, e.g., § 13-16-105 

(defendant “shall have judgment to recover his costs), with

§ 13-16-114, C.R.S. 2015 (“[I]n all other cases in equity not 
32 

otherwise directed by law, it is in the discretion of the court to 

award costs or not.”). 

¶ 77 Second, the supreme court and other divisions of this court 

have construed similar statutory sections as mandating an award of 

costs. Most recently, in Crandall, the supreme court considered 

whether an award of costs is mandatory under section 

13-16-113(2), C.R.S. 2015. 238 P.3d at 662-63. This section 

provides that “[i]n all actions brought as a result of a death or an 

injury to person or property occasioned by the tort of any other 

person, where any such action is dismissed prior to trial under rule 

12(b) of the Colorado rules of civil procedure, the defendant shall 

have judgment for his costs.” § 13-16-113(2) (emphasis added). 

Based on the plain language of the statute, the court concluded 

that section 13-16-113(2) “unequivocally mandate[s] an award of 

costs . . . to a defendant when it prevails on a pre-trial C.R.C.P. 

12(b) motion to dismiss.” Crandall, 238 P.3d at 663. 

¶ 78 Similarly, in National Canada Corp. v. Dikeou, 868 P.2d 1131, 

1139 (Colo. App. 1993), the division concluded that section 

13-16-104, C.R.S. 2015, mandates an award of costs to a plaintiff 

when he or she recovers “debt or damages in an action.” 
33 

Significantly, section 13-16-104 contains language very similar to 

the language in 13-16-105: “the plaintiff or demandant shall have 

judgment to recover against the defendant his costs to be taxed.” 

Compare § 13-16-104, with § 13-16-105. Moreover, section 

13-16-104 is the counterpart to section 13-16-105 — the former 

specifies when plaintiffs are entitled to recover costs whereas the 

latter sets out the circumstances under which defendants are 

entitled to costs. 

¶ 79 Despite this mandatory language, Mr. Acierno argues that trial 

courts have “virtually unlimited discretion with respect to whether 

to award costs to a prevailing party.” In support, he cites to a 

number of decisions from divisions of this court, including 

Valentine v. Mountain States Mutual Casualty Co., 252 P.3d 1182, 

1187 (Colo. App. 2011). Specifically, Mr. Acierno relies (as did the 

trial court) on the Valentine division’s statement that “[a]bsent a 

prohibition in a statute or rule, the district court has considerable 

discretion in determining whether to award costs and what amount 

to award.” Id.

¶ 80 Both Mr. Acierno’s and the trial court’s reliance on Valentine is 

misplaced. The Valentine division’s statement — that trial courts 
34 

have “considerable discretion in determining whether to award 

costs and what amount to award” — refers to a court’s discretion in 

deciding whether or not to award a party’s request for a particular

cost in a particular amount. Id. Valentine and the other cases cited 

by Mr. Acierno do not stand for the proposition that a trial court 

has broad discretion, under section 13-16-105, to completely deny 

a prevailing defendant’s request for costs. 

¶ 81 Nonetheless, Mr. Acierno contends that a prior version of 

C.R.C.P. 54(d) — the version that was in effect when the court 

denied Dr. Garyfallou’s motion for costs — vested courts with 

discretion to deny a prevailing defendant’s request for costs on the 

basis of the plaintiff’s indigency.7 However, the prior version of 

C.R.C.P. 54(d) provided that “[e]xcept when express provision 

therefor is made . . . in a statute . . . costs shall be allowed as of 

course to the prevailing party unless the court otherwise directs.” 

(Emphasis added.) And, as we have concluded above, section 

13-16-105 expressly mandates an award of costs to a prevailing 

 

7 The language Mr. Acierno relies on — “unless the court otherwise 

directs” — was deleted from C.R.C.P. 54(d) by amendment in 2015. 

However, the amended version of C.R.C.P. 54(d) did not take effect 

until July 1, 2015, and the trial court ruled on Dr. Garyfallou’s 

motion for costs in September 2014. 
35 

defendant. Accordingly, the discretionary language in C.R.C.P. 

54(d) was inapplicable. See Nat’l Can. Corp., 868 P.2d at 1139 

(“[B]ecause express provision is made in a statute, see § 13–16–104, 

and since that statute requires that costs be assessed, C.R.C.P. 

54(d) is inapplicable to the extent that it makes the awarding of 

costs discretionary.”). 

¶ 82 In this case, Mr. Acierno would have been entitled to costs had 

he prevailed at trial. Thus, an award of costs to Dr. Garyfallou is 

mandatory under section 13-16-105. We therefore remand this 

case to the trial court to enter an award of costs to Dr. Garyfallou. 

In determining an appropriate award, the trial court shall exercise 

its considerable discretion in determining which costs to award and 

what amounts are reasonable. 

IV. Conclusion 

¶ 83 The judgment is affirmed, the order denying costs is reversed, 

and the case is remanded to the trial court with directions. 

JUDGE WEBB and JUDGE J. JONES concur.