PHILIP A. BRIMMER, District Judge.
This matter is before the Court on the Rule 702 Motion to Exclude Dr. Metzner's Testimony [Docket No. 138] filed by defendants Correct Care Solutions, LLC and Christin Hernandez, Defendants the Weld County Sheriff's Office and the Board of County Commissioners of the County of Weld's Motion for Summary Judgment [Docket No. 139], and CCS and Nurse Hernandez's Motion for Summary Judgment [Docket No. 144]. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
Shortly after midnight on March 27, 2014, Colorado State Patrol Trooper Travis Tyndall arrested Barton Grubbs for failing to drive in a single lane and driving while under the influence of alcohol or drugs. Docket No. 139 at 2, ¶ 1; Docket No. 144 at 2, ¶ 1. At Mr. Grubbs' request, Trooper Tyndall retrieved Mr. Grubbs' medications — a bottle of Valium and a bottle of Percocet — from the back seat of Mr. Grubbs' vehicle. Docket No. 139 at 2-3, ¶¶ 2-3; Docket No. 144 at 2, ¶¶ 4, 6. The generic name for Valium is diazepam, while Percocet consists of both oxycodone and acetaminophen. Docket No. 144 at 9, ¶ 65.
Once they had arrived at the Weld County Jail, Trooper Tyndall escorted Mr. Grubbs from the sally port into the booking vestibule. Docket No. 139 at 3, ¶ 10; Docket No. 144 at 3, ¶ 17. A sign on the door between the sally port and the booking vestibule stated: "STOP ALL ARRESTEES
Deputy Eric Sutherland, of the Weld County Sheriff's Department, arrived in the booking vestibule and informed Trooper Tyndall that arrestees must remain restrained until uncuffed by a Weld County Sheriff Deputy. Docket No. 139 at 4, ¶ 15; Docket No. 144 at 4, ¶ 26.
Nurse Hernandez and Deputy Jennifer Lenderink then conducted Mr. Grubbs' suicide staffing. Docket No. 139 at 8, ¶ 41; Docket No. 144 at 7, ¶ 46.
Plaintiffs filed this lawsuit on March 25, 2016. Docket No. 1. The operative complaint, filed on July 26, 2016, asserts six claims for relief: (1) wrongful death under Colo. Rev. Stat. § 13-21-202; (2) a claim for expenses related to Mr. Grubbs' death under Colo. Rev. Stat. § 13-20-101; (3) deliberate indifference to medical needs under 42 U.S.C. § 1983; (4) adoption of an official policy under 42 U.S.C. § 1983; (5) failure to adequately train or supervise under 42 U.S.C. § 1983; and (6) common law negligence. Docket No. 66 at 22-34, ¶¶ 187-285. Plaintiffs' first through third claims for relief are asserted against all defendants, whereas plaintiffs' fourth and fifth claims are asserted only against the Weld County defendants, and their sixth claim is asserted only against Nurse Hernandez. See id. On August 9, 2016, Magistrate Judge Nina Y. Wang granted defendants' motion to designate Trooper Tyndall as a non-party at fault under Colo. Rev. Stat. § 13-21-111.5(3)(b). Docket No. 75.
On January 17, 2018, the CCS defendants filed a motion to exclude the testimony of plaintiffs' expert, Dr. Jeffrey L. Metzner, pursuant to Fed. R. Evid. 702. Docket No. 138. On January 24, 2018, the Weld County defendants filed a motion for summary judgment on plaintiffs' wrongful death claims. Docket No. 139. On February 7, 2018, the CCS defendants filed a motion for summary judgment seeking dismissal of CCS from the lawsuit and an order declaring Trooper Tyndall negligent as a matter of law. Docket No. 144.
The Court will begin by addressing the CCS defendants' Rule 702 motion.
The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which provides:
Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an expert be qualified based upon knowledge, skill, experience, training, or education to give opinions in a particular subject area. Instead, the Court must "perform[] a two-step analysis." 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). After determining whether the expert is qualified, the Court must assess whether the specific proffered opinions are reliable. See id.; Fed. R. Evid. 702 (requiring that the testimony be "based on sufficient facts or data," be the "product of reliable principles and methods," and reflect a reliable application of "the principles and methods to the facts of the case").
Rule 702 thus imposes on the district court a "gatekeeper function to `ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'" United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). To perform this role, the Court must "assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts." Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93). In assessing reliability, "the court may consider several nondispositive factors: (1) whether the proferred theory can and has been tested; (2) whether the theory has been subject to peer review; (3) the known or potential rate of error; and (4) the general acceptance of a methodology in the relevant scientific community." 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). These factors are not applicable in every case. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 150-53 (1999). Indeed, the trial court has "the same kind of latitude in deciding how to test an expert's reliability . . . as it enjoys when it decides whether or not that expert's relevant testimony is reliable." Id. at 152. Regardless of the specific factors applied, however, the objective of Daubert's gatekeeping requirement remains the same: to ensure that an expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id.
Although the proponent of the challenged testimony has the burden of establishing admissibility, United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (citing Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001)), the reliability standard does not require proof "that the opinion is objectively correct, but only that the witness has sufficient expertise to choose and apply a methodology, that the methodology applied was reliable, that sufficient facts and data as required by the methodology were used and that the methodology was otherwise reliably applied." United States v. Crabbe, 556 F.Supp.2d 1217, 1221 (D. Colo. 2008) (internal citation omitted).
Assuming the standard for reliability is met, the Court must also ensure that the proffered testimony will assist the trier of fact. See Kumho Tire, 526 U.S. at 156; United States v. Rodriguez-Felix, 450 F.3d 1117, 1122-23 (10th Cir. 2006). "Relevant expert testimony must logically advance[ ] a material aspect of the case and be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (internal quotation marks and citations omitted). In assessing whether expert testimony will assist the trier of fact, the Court should also consider "whether the testimony `is within the juror's common knowledge and experience,' and `whether it will usurp the juror's role of evaluating a witness's credibility.'" Id. at 476-77 (quoting Rodriguez-Felix, 450 F.3d at 1123).
Plaintiffs have designated Dr. Jeffrey L. Metzner, a licensed forensic psychiatrist, to testify regarding "the appropriate protocols in correctional health care," Docket No. 151-3 at 1, and specifically, the propriety of Nurse Hernandez's response to Mr. Grubbs' statement that he had ingested Valium and the preventability of Mr. Grubbs' death after that statement. See generally Docket No. 138-5. In his expert report, Dr. Metzner opines that Mr. Grubbs received inadequate care due to Nurse Hernandez's failure to contact the on-call physician, Nurse Hernandez's and Nurse Weatherwax's failure to obtain an emergency mental health consultation, Nurse Hernandez's lack of qualifications to perform a suicide risk assessment, and the insufficiency of the walkthroughs performed by correctional officers as part of the Level 1 suicide watch ("SUW1") process. Id. at 10. Dr. Metzner concludes that Mr. Grubbs' death would have been preventable had he received adequate mental health and/or medical treatment during his time at the Weld County Jail. Id.
Defendants move to exclude Dr. Metzner's testimony on four grounds: (1) as a forensic psychiatrist, he is not qualified to opine as to the standard of care for nurses; (2) his testimony is irrelevant to the issues in this case; (3) he is not qualified to testify as to whether Mr. Grubbs' death was preventable following completion of the suicide staffing; and (4) his opinion regarding preventability is unreliable. Docket No. 138.
Defendants argue that Dr. Metzner is not qualified to testify as to the standard of care applicable to licensed practical nurses because he is a forensic and correctional psychiatrist, has minimal experience training and supervising other psychiatrists, and has never directly supervised correctional nurses. Docket No. 138 at 5, 9. Plaintiffs respond by highlighting Dr. Metzner's experience "defin[ing] and set[ting] the standards for mental health medical care in correctional facilities" and his "numerous positions, honors, memberships, publications, peered [sic] reviewed journals, books, and reviewed books" demonstrating his qualifications as a correctional psychiatrist. Docket No. 151 at 4. Plaintiffs also argue that Dr. Metzner "has not been disclosed to testify regarding nurse standard of care issues." Id. at 5. They assert that Dr. Metzner's testimony will be limited to "Nurse Hernandez's role in correctional health care," "the communication a nurse has with a physician in the context of correctional health care," and "the standard of care in correctional health care." Id. at 5-7.
As an initial matter, defendants' challenge fails to comply with this Court's Practice Standards, which state that a Rule 702 motion "shall identify with specificity each
Although defendants' argument lacks the requisite level of specificity under this Court's practice standards, defendants clearly challenge the opinion, expressed during Dr. Metzner's deposition, that "Nurse Hernandez should have believed Mr. Grubbs when Mr. Grubbs said during the suicide staffing that he took the pills." Docket No. 138 at 5 (citing Docket No. 138-9 at 25, 93:4-95:7). Accordingly, the Court will confine its Rule 702 analysis to that opinion.
The admissibility of Dr. Metzner's opinion "hinges on both state substantive law and federal procedural law." Nicholson v. Evangelical Lutheran Good Samaritan Society, Inc., 2017 WL 3127799, at *29 (D.N.M. July 21, 2017). While Rule 702 governs the admissibility of expert testimony in diversity cases, Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 883 (10th Cir. 2006), a witness's competency to testify regarding a substantive issue, such as the medical standard of care, is dictated by state law. See McDowell v. Brown, 392 F.3d 1283, 1295 (11th Cir. 2004); see also Fed. R. Evid. 601 ("[I]n a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision.").
Under Colorado law, an expert in one medical specialty may testify regarding the standard of care applicable to a different medical speciality if (1) the testifying expert "is, by reason of knowledge, skill, experience, training, or education, so substantially familiar with the standard of care applicable . . . as to render the witness' opinion testimony as well-informed as would be the opinion of an expert witness practicing in the same specialty as the defendant," or (2) the "standard of care for the condition in question is substantially identical for both specialties." Melville v. Southward, 791 P.2d 383, 388-89 (Colo. 1990). Courts in this district have applied these standards in medical malpractice cases involving non-physician defendants. See, e.g., Harvey v. United States, No. 04-cv-188-WYD-CBS, 2006 WL 1980623, at *4, *6 (D. Colo. July 13, 2006) (holding, under admissibility rules articulated in Melville, that nurse expert was not qualified to opine regarding standards of care for physicians or physicians assistants in Colorado).
The Court agrees with defendants that Dr. Metzner is not qualified to opine as to whether Nurse Hernandez breached the nursing standard of care. Although Dr. Metzner testified that he has developed mental health trainings for health care staff and monitored trainings delivered to LPNs, Docket No. 138-9 at 4-5, 25, 12:7-13:10, 95:8-96:6, there is no evidence that he has directly supervised LPNs, received formal training in nursing standards of care, or worked in such close proximity to nursing staff as to become familiar with the applicable standards.
On the other hand, the Court finds that the combination of Dr. Metzner's psychiatry background and his many years of experience developing policies and practices for correctional health care qualifies him to express an opinion as to whether an individual trained in conducting suicide assessments should have believed Mr. Grubbs when he said he had ingested the pills. Dr. Metzner has been working as a licensed psychiatrist in correctional health care settings for nearly forty years. See Docket No. 138-9 at 2-3, 4:22-5:16; Docket No. 138-11 at 1. In 1980, he serv ed as the chief of psychiatry for the Colorado Department of Corrections ("CDOC") and worked to develop policies and procedures to remedy deficiencies in CDOC's psychiatric services. Docket No. 138-9 at 3, 7:11-25. Since that time, Dr. Metzner has served as a clinical professor of psychiatry at the University of Colorado Health Sciences Center and as a court-appointed monitor in mental health litigation, ensuring proper implementation of court-ordered remedial plans at correctional facilities across the country. Id. at 7-9, 23:4-32:5; Docket No. 138-11 at 1, 5-6; see, e.g., McClendon v. City of Albuquerque, 2015 WL 13667177, at *2 (D.N.M. Oct. 13, 2015) (discussing appointment of Dr. Metzner as expert "to evaluate conditions of confinement" at the Metropolitan Detention Center).
These experiences indicate that Dr. Metzner is familiar with the provision of psychiatric care in a correctional setting. They also qualify him to state that an individual adequately trained in conducting suicide assessments should have believed Mr. Grubbs when Mr. Grubbs said he had ingested the pills. Such an opinion does not depend on Dr. Metzner's knowledge of the standard of care applicable to LPNs. Dr. Metzner cited three bases for his conclusion that Nurse Hernandez should have believed Mr. Grubbs: (1) people who are suicidal are often ambivalent about killing themselves; (2) people will often not tell the truth about being suicidal because they do not want to be stopped from killing themselves; and (3) Trooper Tyndall indicated that there might be pills missing from the two pill bottles. Docket No. 138-9 at 25, 93:4-95:3. Dr. Metzner stated that he would not "be real critical about [an LPN] not being aware" of the first two points; however, he indicated that any such lack of awareness on the part of Nurse Hernandez would demonstrate that she was not qualified to conduct a suicide risk assessment. Docket No. 138-9 at 26, 97:12-98:1. This opinion does not require Dr. Metzner to have knowledge of the standard of care applicable to LPNs.
An issue arises as to what claim testimony about Nurse Hernandez's qualifications to conduct a suicide risk assessment would support. Because Dr. Metzner is not qualified to testify about an LPN's standard of care, his opinions cannot support plaintiffs' negligence claim against Nurse Hernandez. Plaintiffs' claim against Weld County for failure to train its employees was dismissed, Docket No. 92 at 19, and, in any event, did not include allegations concerning CCS or Nurse Hernandez. Moreover, plaintiffs deny making a direct claim against CCS for negligence. See Docket No. 144 at 10, ¶ 75; Docket No. 164 at 10, ¶ 75. Finally, plaintiffs provide no explanation of how Dr. Metzner's testimony about the standards for properly conducting a suicide assessment would be relevant to whether Nurse Hernandez was deliberately indifferent under plaintiffs' third claim. As a result, this testimony, while not subject to exclusion under Rule 702, appears to be irrelevant.
Defendants contend that Dr. Metzner's opinion regarding the preventability of Mr. Grubbs' death at a particular point in time is inadmissible on grounds that (1) Dr. Metzner is not sufficiently knowledgeable about pharmacokinetics, pharmacodynamics, overdose reversal, and resuscitation measures to offer such an opinion; and (2) the opinion is unreliable. Docket No. 138 at 10-15. Plaintiffs' primary response is that defendants' challenge rests on facts not in the record. Docket No. 151 at 10, 12-13. They also assert that Dr. Metzner "testified consistent with the correctional standard of healthcare" and talked "at length" about pharmacokinetics and pharmacodynamics. Id. at 12. Finally, plaintiffs argue that Dr. Metzner does not need to be an expert in "resuscitative measures for overdose" because "[h]e only needs to be able to demonstrate that he is qualified to render an expert opinion." Id. at 13.
The Court need not address whether defendants' arguments rest on facts not in the record. Regardless of when defendants allegedly should have sent Mr. Grubbs to the hospital, plaintiffs have not demonstrated that Dr. Metzner is qualified to opine regarding the preventability of Mr. Grubbs' death at any point in time. Nor have plaintiffs shown that Dr. Metzner's opinions on preventability are reliable under Rule 702.
During his deposition, Dr. Metzner testified that he could not remember the last time he had prescribed either Valium or oxycodone — the two drugs that caused Mr. Grubbs' overdose. Docket No. 138-9 at 14, 52:1-5. His testimony as to peak absorption times further indicates that he is not knowledgeable about the effects of those drugs. Although he stated that the peak absorption time for Valium is usually between 1.5 to 3 hours following ingestion, the source upon which he relied listed the average time as falling between 1 and 1.5 hours after ingestion, with a total possible range of .25 to 2.5 hours. Id. at 15, 53:1-24. When asked whether he could cite any source indicating that the peak absorption time could be up to 3 hours after ingestion, Dr. Metzner stated that he had not "extensively explored" the issue. Id., 53: 25-54:4. Finally, Dr. Metzner could not identify the peak absorption time for oxycodone and indicated that he "would have to re-look that up." Id., 56:14-23. As to treatments for overdose, Dr. Metzner indicated that he was not familiar with current methods for delaying absorption or pumping the stomach of an overdose patient. Id. at 19-20, 72:18-73:1. He further stated that he does not consider himself to be an expert in resuscitative measures for overdose situations. Id. at 20, 73:9-11.
The fact that Dr. Metzner has a medical degree does not automatically qualify him to opine that Mr. Grubbs' death was preventable at a particular point in time, see Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001), and Dr. Metzner's testimony regarding peak absorption times and overdose treatment methods demonstrates that he lacks sufficient expertise to offer such an opinion.
Plaintiffs also fail to demonstrate that Dr. Metzner's testimony on preventability is reliable. During his deposition, Dr. Metzner stated that one of the documents he reviewed in preparation of his expert report was a description of Valium and the pharmacokinetics of Valium and gabapentin. Docket No. 138-9 at 12, 44:8-9. However, when asked to identify the source of that document, he was unable to do so. Id., 44:10-13. Dr. Metzner later relied on a chart of peak absorption times for Valium to formulate his opinions on preventability. See id. at 15, 53:4-11. It is not clear whether this is the same document that Dr. Metzner identified earlier in his deposition. In any event, plaintiffs have not presented any evidence concerning the source of the chart or its accuracy.
Not only do the authorities relied upon by Dr. Metzner fail to satisfy the reliability requirements under Rule 702, but they also do not support Dr. Metzner's opinions. Dr. Metzner opined that peak absorption for Valium is usually within 1.5 to 3 hours following ingestion; however, the Valium absorption chart stated that the average time is 1 to 1.5 hours, with a total range of .25 to 2.5 hours. Id. at 15, 53:1-11. In his explanation of this discrepancy, Dr. Metzner appears to misconstrue the .25 to 2.5 range as the average time for peak absorption rather than the total range. See id., 53:4-24. Finally, Dr. Metzner was unable to cite any other authority to support his opinion that peak absorption could occur up to 3 hours after ingestion, and he admitted that he had not "extensively explored" the issue. Id., 53:25-54:4.
Based on this testimony, the Court finds that plaintiffs have failed to demonstrate that Dr. Metzner's opinions regarding the preventability of Mr. Grubbs' death were "the product of reliable principles and methods" reliably applied. Fed. R. Evid. 702(c)-(d); see also McDowell, 392 F.3d at 1300 (doctor's opinion that plaintiff's "injury could have been prevented had he entered surgery four hours earlier" was inadmissible where only authority offered in support of theory was a study dealing with the effects of a 48-hour delay in treatment). Accordingly, Dr. Metzner will not be able to opine that Mr. Grubbs' death was preventable at a particular point in time.
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is "material" if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where "the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation marks omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted). "To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case." Bausman, 252 F.3d at 1115.
If the party moving for summary judgment bears the ultimate burden of persuasion at trial, it must "support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial." Celotex Corp., 477 U.S. at 331. This "shifts the burden of production to the party opposing the motion and requires that party either to produce evidentiary materials that demonstrate the existence of a `genuine issue' for trial or to submit an affidavit requesting additional time for discovery." Id. When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.
Plaintiffs assert claims for wrongful death against the Weld County defendants pursuant to Colo. Rev. Stat. §§ 13-21-202.
Colo. Rev. Stat. § 13-21-202. To prevail on a wrongful death claim under § 13-21-202, a plaintiff must show: "(1) the death of a person, and (2) a wrongful act that would have entitled the person `injured' to maintain an action, had the person survived." A.B., by Ybarra v. City of Woodland Park, 174 F.Supp.3d 1238, 1251 (D. Colo. 2016) (quoting Stamp v. Vail Corp., 172 P.3d 437, 451 (Colo. 2007) (Eid, J., concurring)). Because wrongful death claims are derivative, id., they are "subject to the same defenses available to the underlying claims." Elgin v. Bartlett, 994 P.2d 411, 416 (Colo. 1999).
Plaintiffs in this case premise their wrongful death claim on allegations that the Weld County defendants were negligent in their care of Mr. Grubbs. Docket No. 157 at 2; Docket No. 66 at 22-23, ¶¶ 191-92. Under Colorado law, a claim for negligence consists of four elements: (1) the existence of a legal duty; (2) breach of that legal duty; (3) causation; and (4) damages. Westin Operator, LLC v. Groh, 347 P.3d 606, 612 (Colo. 2015). The Weld County defendants move for summary judgment on two grounds. First, they assert that they cannot be liable for Mr. Grubbs' choice to commit suicide given that "there is no evidence that [defendants] caused Mr. Grubbs to be in a compromised mental or emotional state at the time." Docket No. 139 at 13. Second, they contend that "there is no evidence that any wrongful act by [defendants] caused Mr. Grubbs' death." Docket No. 139 at 13.
Defendants' first argument goes to the issue of proximate cause. See Docket No. 139 at 12-13 (citing Moore v. Western Forge Corp., 192 P.3d 427 (Colo. 2007), and Restatement (Second) of Torts § 455); Moore, 192 P.3d at 436 (stating that § 455 of the Restatement (Second) of Torts "does not set forth a duty but describes a rule of causation . . . which presupposes an existing legal duty" (internal quotation marks and brackets omitted)). Under Colorado law, the causation element of a negligence claim has two components: actual cause and proximate or legal cause. See Moore, 192 P.3d at 436. Actual cause asks whether the defendant's negligence was the but-for cause of the plaintiff's harm, see Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977, 987 (Colo. App. 2011), whereas the proximate cause inquiry addresses whether "it is foreseeable that the defendant's negligence will result in injuries to others." Build It and They Will Drink, Inc. v. Strauch, 253 P.3d 302, 306 (Colo. 2011). As the Colorado Suprem e Court has noted, proximate cause principles reflect "an attempt to spell out rules of law limiting the liability of a negligent actor, using the language of causation." Moore, 192 P.3d at 436.
A defendant's wrongful conduct is not the proximate cause of a plaintiff's injuries "if, in order to bring about such injuries, it was necessary that the conduct combine or join with an intervening cause which also contributed to cause the injuries, but which intervening cause would not have been reasonably foreseen by a reasonably careful person under the circumstances." Moore, 192 P.3d at 436. "Because suicide is usually treated as a voluntary and willful choice," courts have often found suicide to constitute an intervening cause sufficient to relieve a defendant of liability for any antecedent acts of negligence. Id.
By arguing that the Weld County defendants did not cause Mr. Grubbs "to be in a compromised mental or emotional state at the time of his death by suicide," defendants appear to assert that his voluntary act of self-harm broke the chain of causation between any alleged negligence on the part of defendants and Mr. Grubbs' death. However, the rules of intervening and superseding cause only apply when "another act intervenes after the [defendant's] conduct has occurred." Archuletta v. City of South Salt Lake, 2014 WL 5149298, at *5 n.7 (D. Utah Oct. 14, 2014) (citing Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006)); see also Moore, 192 P.3d at 431, 436-38 (considering intervening and superseding cause principles in context of claim that defendant's bad faith denial of workers' compensation benefits caused decedent to commit suicide); Restatement (Second) of Torts § 440 (defining "superseding cause" as "an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about" (emphasis added)). Here, plaintiffs predicate their wrongful death claims against the Weld County defendants on negligent conduct occurring after Mr. Grubbs' act of suicide. Plaintiffs' claim is not that defendants caused Mr. Grubbs to commit suicide, but rather that defendants negligently failed to obtain proper treatment for Mr. Grubbs after they were aware that he had ingested the pills. See Docket No. 169 at 14-17 (arguing that Weld County defendants had a duty to provide medical care to Mr. Grubbs). Defendants' argument that they cannot be held liable for Mr. Grubbs' death because they did not cause him to be in a compromised mental or emotional state thus does not provide a basis for granting summary judgment in their favor.
Defendants also move for summary judgment on the ground that plaintiffs have presented no admissible evidence that the Weld County defendants committed a wrongful act leading to Mr. Grubbs' death. See Docket No. 139 at 13. The focus of defendants' argument appears to be that there is no evidence the Weld County defendants acted negligently with respect to Mr. Grubbs.
In their response, plaintiffs generally contend that Mr. Grubbs' death from overdose was foreseeable by Weld County staff and thus defendants had a duty to provide Mr. Grubbs with adequate medical care. See Docket No. 169 at 14-19. Plaintiffs further claim that Deputy Lenderink was aware that "she should have called a code for an ambulance to take Mr. Grubbs straight to the hospital" and that, during the four-hour period in which Mr. Grubbs was housed in Unit 6, defendants had 80 separate opportunities to rescue him before he overdosed. Id. at 18-19.
Plaintiffs' response fails to create a genuine factual dispute as to whether the Weld County defendants breached their duty of care to Mr. Grubbs by (1) uncuffing him in the booking area or (2) admitting him into the jail after he informed staff that he had ingested 70 Valium pills. Regarding the first act, plaintiffs admit that Trooper Tyndall uncuffed Mr. Grubbs in the booking vestibule contrary to the jail's policy of requiring arrestees to remain restrained until uncuffed by a Weld County deputy. Docket No. 139 at 4, ¶¶ 11-15. Because plaintiffs have adduced no facts or argument demonstrating that Weld County staff were responsible for uncuffing Mr. Grubbs in the booking vestibule, they have not created a genuine dispute of fact as to whether the Weld County defendants acted negligently by uncuffing Mr. Grubbs. Accordingly, defendants are entitled to summary judgment on this issue.
Plaintiffs have also failed to demonstrate a genuine factual dispute as to whether Deputy Lenderink was negligent in failing to send Mr. Grubbs to the hospital. Plaintiffs generally contend that Weld County deputies had a "duty to rescue" Mr. Grubbs by providing him with access to medical care. See Docket No. 169 at 16-18. They also assert that Deputy Lenderink "knew that she should have had [sic] called a code for an ambulance to take Mr. Grubbs straight to the hospital instead of booking him." Id. at 18. But plaintiffs do not provide any facts, argument, or authority in opposition to defendants' assertion that Deputy Lenderink was not in a position to override decisions by medical staff about whether to send an inmate to the hospital. See Docket No. 139 at 17. In their response to defendants' statement of undisputed facts, plaintiffs deny that "[w]hether a detainee in Mr. Grubbs' position is sent to the hospital is a decision solely made by medical staff at the Jail." See Docket No. 169 at 7, ¶ 49; Docket No. 139 at 9, ¶ 49. However, the testimony plaintiffs cite in support of their denial establishes only that CCS was not contracted to provide mental health services at the jail. See Docket No. 169-4 at 41:1-2 (stating that CCS was "not contracted for mental health at the Weld County jail"); Docket No. 169-5 at 20, 79:19-22 (stating that CCS "did not have a mental health contract with [Weld County Jail]"). Because such evidence has no bearing on whether medical staff at Weld County Jail were solely responsible for deciding whether to send a detainee to the hospital, it does not create a genuine dispute of fact on that issue. Plaintiffs likewise fail to identify a genuine factual dispute as to whether Deputy Lenderink had the authority to override a medical decision by Nurse Hernandez. In response to defendants' statement of fact that "[j]ail staff cannot override a medical decision made by medical staff," Docket No. 139 at 10, ¶ 50, plaintiffs again cite deposition testimony establishing that CCS was not contracted to provide mental health services. See Docket No. 169 at 7-8, ¶ 50. However, such evidence does not demonstrate that Deputy Lenderink had the authority to send Mr. Grubbs to the hospital notwithstanding Nurse Hernandez's decision to the contrary, see Docket No. 169-7 at 13, 52:19-20 ("Q. And you can't override the nurse, correct? A. Correct."), much less a "duty to rescue" him. Defendants are therefore entitled to summary judgment on this issue.
The Court reaches the opposite conclusion with respect to defendants' supervision of Mr. Grubbs after he was transferred to Unit 6. Defendants assert that plaintiffs "have not identified any admissible evidence to demonstrate that the Weld County Defendants negligently supervised Mr. Grubbs after he was placed in his cell." Docket No. 139 at 18. However, in their response to defendants' motion, plaintiffs cite Dr. Metzner's expert report in which he expresses concerns regarding both the quality of the observation walkthroughs conducted on Level 1 suicide watch and defendants' failure to supplement those walkthroughs with clinical checks by nursing staff. See Docket No. 169 at 10, ¶¶ 70-71; Docket No. 169-12 at 10. Dr. Metzner opines that the "sequence of events raises the question of the nature and the quality of the[] observation walk-throughs" because "it is likely that [Mr. Grubbs] was demonstrating effects of the overdose well before" Weld County deputies found Mr. Grubbs unresponsive in his cell. Docket No. 169-12 at 10. Dr. Metzner further states that "it was below the standard of correctional healthcare to have not supplemented the SUW1 process with frequent (e.g., every 30 minutes) clinical checks by nursing staff for at least 4-5 hours." Id. at 11. Viewed in a light most favorable to plaintiffs, Dr. Metzner's expert opinions create a genuine factual dispute as to whether the Weld County defendants negligently supervised Mr. Grubbs in Unit 6.
Because the Court finds that there is a genuine dispute of material fact regarding whether the Weld County defendants acted negligently in their supervision of Mr. Grubbs in Unit 6, summary judgment will be denied as to this issue.
In their motion for summary judgment, the CCS defendants request a court order dismissing CCS from this lawsuit on the ground that plaintiffs cannot legally maintain a negligence claim against both CCS and Nurse Hernandez. Docket No. 144 at 1. Defendants further request a judicial determination that Colorado State Patrol Trooper Travis Tyndall was negligent and an order permitting the jury to consider Mr. Tyndall's negligence in determining defendants' liability. Id. at 1, 18.
Defendants argue that the Colorado Supreme Court's decision in Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017), precludes plaintiffs from maintaining wrongful death claims against both CCS and Nurse Hernandez. Docket No. 144 at 11-12. In Ferrer, the Colorado Supreme Court held that a plaintiff's direct negligence claims against an employer are barred when the employer acknowledges vicarious liability for the negligence of its employee. 390 P.3d at 841-42. Defendants contend that, because plaintiffs' wrongful death claims against CCS are entirely predicated on the alleged negligence of Nurse Hernandez and CCS has acknowledged vicarious liability for Nurse Hernandez's conduct, Ferrer mandates the dismissal of CCS from this lawsuit. Docket No. 144 at 12. In their response, plaintiffs accept defendants' interpretation of Ferrer, but argue that plaintiffs have "alleged . . . that CCS's own negligence was . . . an independent and direct cause of Grubbs' injuries, . . . separate and distinguished from any negligent act of Hernandez." Docket No. 164 at 15. Specifically, plaintiffs assert that CCS committed the following "independent acts" of negligence: (1) CCS negligently placed Nurse Hernandez in a position to decide whether Mr. Grubbs should be sent to the emergency room; (2) Nurse Hernandez's supervising nurse, Deborah Weatherwax, did not call the on-duty provider or send Mr. Grubbs to the emergency room; and (3) two other CCS nurses, Lyza Carter and Veronica Rocha-Gallegos, "chose not to implement any one of three separate withdrawal protocols, monitoring, or additional screening" despite knowledge that Mr. Grubbs had swallowed 48 valium pills. Id. at 15. Plaintiffs also cite "policies and procedures, written and implemented by CCS" as an additional basis for liability. Id. In their reply, defendants contend that these additional acts of negligence represent new theories of recovery and thus cannot serve as a basis for denying summary judgment. Docket No. 167 at 6.
Because plaintiffs have admitted that "[t]he complaint states no claim against CCS for negligent hiring, retention, supervision, or training," Docket No. 144 at 10, ¶ 75; Docket No. 164 at 10, ¶ 75, plaintiffs cannot avoid summary judgment by contending that CCS negligently placed Nurse Hernandez in a position to determine whether Mr. Grubbs should be sent to the hospital. The Court will therefore confine its analysis to whether plaintiffs have asserted a theory of recovery based on CCS's policies and procedures or the negligent acts of other members of the nursing staff.
The "pretrial order measures the dimensions of the lawsuit, both in the trial court and on appeal." Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1304 (10th Cir. 2003) (internal quotation marks omitted); see also Fed. R. Civ. P. 16(d) (stating that the pretrial order "controls the course of the action unless the court modifies it"). Accordingly, any "claims, issues, defenses, or theories of damages not included in the pretrial order are waived even if they appeared in the complaint and, conversely, the inclusion of a claim in the pretrial order is deemed to amend any previous pleadings which did not include that claim." Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002). While a trial court has the discretion to exclude claims or issues not included in the pretrial order, see Rios v. Bigler, 67 F.3d 1543, 1549 (10th Cir. 1995), "pretrial orders are to be liberally construed to cover any of the legal or factual theories that might be embraced by their language." Zenith Petroleum Corp. v. Steerman, 656 F. App'x 885, 887 (10th Cir. 2016) (unpublished) (quoting Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir. 1979)). When a pretrial order is ambiguous, a court "must evaluate the order contextually to determine whether the claim was contained therein." Wilson, 303 F.3d at 1216. "[T]he primary purpose of pretrial orders is to avoid surprise by requiring parties to fully and fairly disclose their views as to what the real issues of the trial will be." Zenith Petroleum Corp., 656 F. App'x at 887.
In this case, the pretrial order alleges that "the CCS Defendants were negligent in the death of Barton Grubbs" because they "failed in their respective standard of care to protect Mr. Grubbs after identifying him as suicidal." Docket No. 157 at 2. The order further states that Nurse Hernandez acted negligently and with deliberate indifference in failing to send Mr. Grubbs to the hospital, practicing medical care beyond her capabilities, and failing to seek the assistance of the supervising physician and registered nurse. Id. at 2-3. Contrary to plaintiffs' assertions, there is no indication that plaintiffs' wrongful death claims are predicated on CCS's policies or procedures or the negligent acts of other members of the nursing staff, such as Nurses Weatherwax, Carter, and Rocha-Gallegos. Even viewing the order in combination with the operative complaint, see Wilson, 303 F.3d at 1216, plaintiffs' allegations cannot fairly be read as asserting these theories of liability. In the order on defendants' motion to dismiss, this Court determined that "[t]he only CCS policy identified in the complaint is that CCS has a `budgetary monetary cap on booked detainee's hospitalization costs, [which] creates a deliberate indifference in health care standards to an inmate.'" Docket No. 92 at 10. Because there were no allegations in the complaint that "the budget was the moving force behind defendants' decision not to send Mr. Grubbs to the hospital," the Court found the policy insufficient to support a claim for deliberate indifference. Id.
This Court's prior order dismissing plaintiffs' deliberate indifference claim against CCS controls the issue of whether plaintiffs have adequately asserted "policies and procedures, written and implemented by CCS" as an additional basis for their wrongful death claims. As defendants argue, "[a]fter the Court's dismissal, the complaint contained no remaining allegations that CCS's policies were inadequate" and plaintiffs never sought to amend their complaint to add additional allegations regarding CCS's policies and procedures. Docket No. 167 at 6. Accordingly, plaintiffs may not rely on CCS's "policies and procedures" to avoid summary judgment. See Hullman v. Bd. of Trustees of Pratt Cmty. Coll., 950 F.2d 665, 668 (10th Cir. 1991) (citing holding of Southern California Retail Clerks Union v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984), that "issues not preserved in the pretrial order" may not be used "in resisting a motion for summary judgment").
The complaint and pretrial order were also insufficient to place defendants on notice that plaintiffs would be asserting vicarious liability for the negligent acts of other members of the nursing staff, namely, Nurses Weatherwax, Carter, and Rocha-Gallegos. As noted above, the pretrial order focuses exclusively on the negligence of Nurse Hernandez and does not give any indication that plaintiffs' wrongful death claims against CCS are predicated on the negligent acts of other members of the medical staff. Moreover, plaintiffs' complaint contains only a handful of allegations potentially relevant to this theory of liability: (1) Nurse Weatherwax instructed Nurse Hernandez to check the label on the prescription bottles and then call the provider to see if there was anything she could give Grubbs to counteract the effects of the medications; (2) Nurse Weatherwax "did not have anything more to do with Mr. Grubbs" after giving these instructions; (3) no one ever called the provider regarding Mr. Grubbs; (4) Mr. Grubbs was transported to Housing Unit 6, where he was "supposed to be under the supervision of the East side of the jail's medical staff"; (5) Nurse Hernandez called the medical office on the East side of the jail to tell them to do a medical screening for possible withdrawal symptoms, but no medical screening was ever performed; and (6) plaintiffs' wrongful death claim is based, in part, on "the negligent supervision of Barton Grubbs after he was placed in his cell." Docket No. 66 at 14-16, 22, ¶¶ 105, 106, 108, 119, 125-26, 191. Importantly, plaintiffs never allege that Nurse Weatherwax acted negligently in failing to provide additional care to Mr. Grubbs or contact the on-duty provider. And, although plaintiffs' allegations regarding the failure of "medical staff" on the East side of the jail to conduct a medical screening could be construed as a claim of negligence, plaintiffs did not make any attempt to develop this claim with allegations that the failure to conduct a medical screening was below the standard of care or that CCS was vicariously liable for such conduct. Compare id. at 26, ¶¶ 213-14 (alleging that Nurse Hernandez was an employee of CCS and that CCS was responsible for her actions). In light of the fact that the final pretrial order makes no mention of Nurses Weatherwax, Carter, or Rocha-Gallegos, the Court finds that the sparse allegations in plaintiffs' complaint are insufficient to place defendants on notice of this basis for liability. See Hullman, 950 F.2d at 667-68 (affirming summary judgment in favor of defendant on free speech claim where pretrial order failed to identify complaint regarding college's financial mismanagement as protected speech supporting his First Amendment claim); Bednasek v. Kobach, 259 F.Supp.3d 1193, 1212 (D. Kan. 2017) (finding that neither operative complaint nor pretrial order could be read as placing defendant on notice that plaintiff "was pursuing a facial challenge based on subsection (n) of the statute under the Privileges or Immunities Clause").
Moreover, defendants filed their summary judgment motion seeking dismissal of CCS from the lawsuit under Ferrer on February 7, 2018. Docket No. 144. The final pretrial order was not entered until February 21, 2018. Docket No. 157. Plaintiffs thus had ample notice of defendants' argument that plaintiffs' wrongful death claims against CCS were based solely on Nurse Hernandez's negligent conduct. However, plaintiffs did not take the opportunity to clarify their theories of liability in the final pretrial order. Plaintiffs' conduct supports a conclusion that they never intended to pursue such theories at trial.
Although the Court finds that plaintiffs' wrongful death claims against CCS are predicated solely on CCS's vicarious liability for the alleged negligence of Nurse Hernandez, defendants fail to demonstrate that CCS should be dismissed from this lawsuit. Ferrer establishes that a plaintiff may not pursue claims for direct negligence against an employer who has admitted vicarious liability for the negligent acts of its employee. There is nothing in the case to indicate that a defendant should be dismissed from a lawsuit merely because the only remaining claims against that defendant are based on vicarious liability. Several reported cases have proceeded to trial against the principal even when vicarious liability claims were the only claims remaining. See, e.g., Bautista v. MVT Servs., LLC, No. 16-cv-01086-NYW, 2017 WL 6054888, at *7 (D. Colo. Dec. 7, 2017) (granting motion to exclude certain expert opinions at trial where the opinions pertained to direct negligence of defendant, but the only claims asserted were based on vicarious liability); Marso v. Homeowners Realty, Inc., 2018 WL 775629, at *1 (Colo. App. 2018) (holding that monetary settlement with agent was correctly set off against "jury verdict returned against the principal when the principal's liability [was] entirely dependent on the doctrine of respondeat superior"); Bogdanski v. Budzik, 408 P.3d 1156, 1164, 1166 (Wyo. 2018) (affirming dismissal of direct negligence claim based on McHaffie rule adopted in Ferrer, but finding that plaintiff was "entitled to try his luck with a jury on his vicarious liability claim"). Defendants cite no other basis or authority for dismissing CCS from this action. Accordingly, defendants' request for an order of dismissal will be denied.
Defendants move for a judgment as a matter of law that Trooper Tyndall was negligent. Docket No. 144 at 18. Because a nonparty's fault constitutes an affirmative defense, see Bethel v. United States ex rel. Veterans Admin. Med. Ctr. of Denver, Colo., 544 F. App'x 807, 812 (10th Cir. 2013) (unpublished), defendants must provide credible evidence establishing each essential element of the defense. See Harper v. Mancos Sch. Dist. RE-6, 837 F.Supp.2d 1211, 1217 (D. Colo. 2011).
To prevail on a negligence claim under Colorado law, a party must show: (1) the existence of a legal duty of care; (2) breach of that duty; (3) injury; and (4) causation. Westin Operator, LLC, 347 P.3d at 612. Defendants assert that all four of these elements are established with respect to Trooper Tyndall. Docket No. 144 at 13-18. Specifically, they contend that Trooper Tyndall owed Mr. Grubbs "a duty of reasonable care and affirmative protection . . . based on the special custodial relationship" and that Trooper Tyndall breached that duty by: (1) failing to separate Mr. Grubbs from his medications during transport to the Weld County Jail; (2) uncuffing Mr. Grubbs once inside the booking vestibule at the jail; (3) turning his back on Mr. Grubbs while Mr. Grubbs was unrestrained; and (4) failing to communicate certain information to Weld County staff once he knew, or should have known, that pills were missing from Mr. Grubbs' medication bottles. Id. at 14-17.
As discussed above with respect to the Weld County defendants' summary judgment motion, the doctrine of proximate causation is "an attempt to spell out rules of law limiting the liability of a negligent actor, using the language of causation." Moore, 192 P.3d at 436. "[F]oreseeability is the touchstone of proximate cause." Westin Operator, LLC, 347 P.3d at 614 n. 5. Thus, a defendant's conduct will not be considered the proximate cause of a plaintiff's injury if "it was necessary that the conduct combine or join with an intervening cause which also contributed to cause the injuries, but which would not have been reasonably foreseen by a reasonably careful person under the circumstances." Moore, 192 P.3d at 436 (quoting Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89, 93 (Colo. App. 1997)); see also Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 81 (Colo. 2001) ("An intervening cause only relieves the defendant of liability if it was not reasonably foreseeable."). Whether an intervening cause was reasonably foreseeable is ordinarily a question of fact for the jury. Westin Operator, LLC, 347 P.3d at 614 n.5; see also Ekberg v. Greene, 588 P.2d 375, 377 (Colo. 1978) (finding that the "[t]he court of appeals was mistaken . . . in taking the determination of proximate cause away from the jury" and noting that, "[r]ather than resting on mechanistic rules of law to determine tort liability, a court should ordinarily allow the jury to make a determination of what is reasonable in each factual setting").
In Colorado, suicide is typically considered an intervening act sufficient to relieve an antecedent tortfeasor of liability. See Moore, 192 P.3d at 436 (noting that "suicide is usually treated as a voluntary and willful choice"). Although Colorado courts have not applied this rule in the precise circumstances presented here, they have recognized decisions from other jurisdictions establishing that a person's suicide does not automatically absolve a defendant of liability where a special relationship existed between the defendant and the deceased. See id. at 432 (noting that, "[i]n negligence cases, courts have been unwilling to recognize any duty, breach of which would make a defendant liable for suicide based only on actual causation, absent a special relationship involving, treatment, supervision, or custodial control of the deceased"); English v. Griffith, 99 P.3d 90, 94 (Colo. App. 2004) (noting that "absent a special relationship, a person generally has no duty to take action for the protection of another"); see also City of Richmond Hill v. Maia, 800 S.E.2d 573, 577-78 (Ga. 2017) (recognizing "special relationship exception" to "general rule that suicide absolves an alleged tortfeasor of liability" as a matter of law). Cockrum v. State, 843 S.W.2d 433 (Tenn. App. 1992), is one such decision. Cited by the Colorado Court of Appeals in English v. Griffith, Cockrum establishes that a prisoner's suicide is not, as a matter of law, "an independent, intervening act" sufficient to relieve a prison of liability for negligent supervision. 843 S.W.2d at 436-37. In reaching that holding, the court explained that, "[i]n the custodial context, when the intervening act is itself the foreseeable harm that gives rise to the custodian's duty, the custodian who fails to prevent the act will not be relieved from liability simply because the act has occurred." Id. at 437.
However, even in cases recognizing a duty on the part of law enforcement officials to protect individuals in their custody from self-harm, courts have been reluctant to find liability where an individual's self-destructive acts would not have been reasonably foreseeable to a person in the defendant's position. See, e.g., Timson v. Juvenile & Jail Facility Mgmt. Servs., Inc., 355 F. App'x 283, 284-85 (11th Cir. 2009) (unpublished) (granting summary judgment in favor of correctional facility where plaintiff failed to present evidence demonstrating that it was reasonably foreseeable that inmate would commit suicide); Joseph v. State, 26 P.3d 459, 476-77 (Alaska 2001) (holding that "[j]ailers need make only reasonable efforts to protect prisoners from intentionally inflicted self-harm that is reasonably foreseeable"); Cockrum, 843 S.W.2d at 436-37 (finding that inmate's suicide did not relieve prison of liability where "[t]he evidence in th[e] case demonstrate[d] that the [prison] staff knew or should have known that [the decedent] was capable of self-destructive acts"). Some courts have addressed the issue of foreseeability as part of the duty analysis. See, e.g., Cockrum, 843 S.W.2d at 437 (finding, based on evidence that prison staff knew or should have known that inmate would attempt suicide, that staff "had a duty to take reasonable precautions to protect Ms. Cockrum from injuring herself"). As the Colorado Supreme Court has noted, "the concepts of duty and proximate cause are often interchangeable." Moore, 192 P.3d at 434. Both involve the exercise of policy judgments regarding the extent to which an individual should be held liable for certain negligent acts. See Westin Operator, LLC, 347 P.3d at 615 (explaining that duty and proximate cause are both ways of placing limits on liability); Walcott v. Total Petroleum, Inc., 964 P.2d 609, 612 (Colo. App. 1998) ("[W]hen both duty and proximate cause are at issue, the determination under either concept of whether a risk was reasonably foreseeable as a matter of law depends in part on the common sense consideration of the risks created by various conditions and circumstances and in part in the policy consideration of whether a defendant's responsibility should extend to the results in question." (internal citation omitted)). Although it is not clear whether Colorado courts would treat the foreseeability of an arrestee's suicide while in custody as an issue of duty or proximate cause, see Moore, 192 P.3d at 432 (noting that courts in negligence cases "have been unwilling to recognize any duty, breach of which would make a defendant liable for suicide based only on actual causation, absent a special relationship," but further stating that courts have otherwise "found proximate cause only in very narrow circumstances"), the Court need not resolve the issue.
Because defendants have failed to establish that Mr. Grubbs' suicidal act was foreseeable as a matter of law, they are not entitled to summary judgment on the issue of Trooper Tyndall's liability.
For the foregoing reasons, it is
347 P.3d at 615.
