Res Ipsa in Colorado

Chapman v. Harner, — P.3d — (Colo. 2014)

The res ipsa loquitur rule plays an important role in our torts system and in medical malpractice litigation in particular. In Chapman v. Harner, a patient’s wife argued via expert testimony that her husband’s aortic arch was punctured during the procedure, that such a puncture would not ordinarily occur absent negligence, and that it was more likely than not that the injury was caused by the surgeon or a member of his team. Had the res ipsa rule not been available, this and many other potentially meritorious suits would be dismissed summarily without a trial. In most jurisdictions across the United States, the res ipsa rule allows the plaintiff to defeat the defendant’s motion for summary judgment and move her case to trial.

In Colorado, this rule did even more: it shifted to the defendant the burden of proving by a preponderance of the evidence that he was not negligent. Weiss v. Axler, 328 P.2d 88, 96–97 (Colo. 1958).

About a month ago, the Colorado Supreme Court has changed this formulation. It decided to align the res ipsa rule with Colorado Rule of Evidence 301, pronouncing that, from now on, the rule will only shift to the defendant the burden of production, not the persuasion burden. Chapman v. Harner, — P.3d —- (Colo. 2014). This decision keeps the res ipsa rule in a format still friendlier to plaintiffs than in other jurisdictions, where the rule merely allows the plaintiff to pass the judge and move the case to the jury without formally requiring the defendant to adduce evidence. See, e.g., States v. Lourdes Hospital, 792 N.E.2d 151 (N.Y. 2003), and Sides v. St. Anthony’s Med. Ctr., 258 S.W.3d 811 (Mo. 2008).