No. 98CA1630Colorado Court of Appeals.
March 16, 2000
Appeal from the District Court of Montrose County, Honorable J. Steven Patrick, Judge, No. 95CV27
JUDGMENTS AFFIRMED
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Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Buchanan, Jurdem Zulauf, P.C., Karen M. Zulauf, Jessica L. West, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.
Rossi, Cox, Kiker Inderwish, P.C., Marc Kaplan, Aurora, Colorado; McDermott Hansen, William James Hansen, Denver, Colorado; Bragg Baker, P.C., John Thomas Baker, Denver, Colorado, for Amicus Curiae Colorado Trial Lawyers Association
Mark S. Mandell, Ned Miltenberg, Washington, D.C., for Amicus Curiae Association
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of Trial Lawyers of America and the Colorado Trial Lawyers Association.
Zarlengo, Mott, Zarlengo Winbourn, P.C., Reed L. Winbourn, Denver, Colorado; Skadden, Arps, Slate, Meagher Flom LLP, Bert L. Wolff, Steven F. Napolitano, New York, New York, for Defendant-Appellant and Cross-Appellee.
Campbell, Latiolais Ruebel, P.C., Jeffrey Clay Ruebel, Denver, Colorado, for Amicus Curiae Colorado Defense Lawyers Association.
Division II
Hume, C.J., and Criswell[*] , J., concur
Opinion by JUDGE MARQUEZ
[1] In this toxic tort action, defendant, American Sterilizer Co., appeals the judgments entered on jury verdicts finding (1) that plaintiff, Betty Salazar, filed her claims within the two-year statute of limitations set forth in § 13-80-106, C.R.S. 1999, and (2) that defendant was negligent, and awarding plaintiff damages. Plaintiff cross-appeals complaining of the trial court’s ruling that Colorado’s non-party statute, § 13-21-111.5, C.R.S. 1999, is constitutional and the court’s denial of recovery for certain costs. We affirm. [2] Beginning in 1977, plaintiff worked as a central sterilizing technician at a hospital in Montrose. In the fall of 1983, the hospital purchased and placed into service a “Portagas” ethylene oxide sterilizer manufactured by defendant. The hospital used the Portagas sterilizer until 1989 when it purchased from defendant a new ethylene oxide sterilizer called the “Eagle.” [3] When operating the sterilizers, plaintiff was exposed to ethylene oxide, a toxic chemical that causes neurocognitive defects and nerve damage. She was later diagnosed as having peripheral neuropathy. [4] On March 31, 1995, plaintiff, pro se, filed a verified complaint against defendant and others, asserting, inter alia, that the Portagas sterilizer was placed into service in 1983 and that she sterilized surgical instruments approximately five days per week. She also alleged that as a result of defendant’s negligence, she had incurred personal injuries allegedly caused by exposure to ethylene oxide from use of the Portagas sterilizer. On July 12, 1995, plaintiff amended her complaint to allege that the Eagle sterilizer was placed into service in September 1989, and that she sterilized surgical instruments from the time the Portagas sterilizer was placed into service until April 1993. [5] Defendant asserted that the statute of limitations barred the claim. A separate trial was held on that issue. Following a verdict in plaintiff’s favor on that issue, a second trial was held on liability for negligence and damages. The jury returned a verdict in favor of plaintiff and awarded her $339,213 for non-economic losses; $565,355 for economic losses; and $1,356,852 for physical impairment. The jury found that defendant was 66 percent responsible for plaintiff’s injuries, damages, and losses. The jury also found that two non-parties were responsible for the remaining damages: the hospital was 32 percent responsible and a person who had inspected the sterilizers was 2 percent responsible. The trial court then entered judgment against defendant for 66 percent of the total damages, or $1,492,537.20. [6] Although defendant filed post-trial motions for judgment notwithstanding the verdict, a new trial, or remittitur, the trial court’s order denying its motions was not issued until the 60-day period provided by C.R.C.P. 59(j) had expired. However, plaintiff consented to a remittitur, and the judgment was subsequently reduced to $1,093,422 plus prejudgment interest of $916,426 and costs of $114,005.88. I.
[7] Defendant first contends that the trial court committed reversible error in denying judgment in its favor based on the statute of limitations. We are not persuaded.
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A.
[9] As to the applicable standard for determining when the statute of limitations begins to run, we reject defendant’s contention that inquiry notice triggers the discovery rule.
(Colo. 1991). [12] Here, the parties agree that the statute of limitations begins to run when the claimant has knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another. See Miller v. Armstrong World Industries, Inc., supra;Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984). [13] Nevertheless, defendant relies on cases from other jurisdictions to support its position that inquiry notice triggers the discovery rule. See Estate of Montag v. T H AgricultureNutrition Co., 509 N.W.2d 469 (Iowa 1993) (inquiry notice);Martinez v. Showa Denko, K.K., 964 P.2d 176 (N.M.App. 1998) (information known by plaintiff concerning a “possible connection” between her condition and the product, sufficient to activate commencement of statute of limitations); Schiele v.Hobart Corp., 587 P.2d 1010 (Ore. 1978) (the statute of limitations begins to run when a plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists). [14] However, suspicion of a possible connection does not necessarily put a reasonable person on notice of the nature, extent, and cause of an injury. The focus is on plaintiff’s knowledge of facts rather than the discovery of applicable legal theories. Miller v. Armstrong World Industries, Inc., supra;Winkler v. Rocky Mountain Conference of United Methodist Church, 923 P.2d 152 (Colo.App. 1995). [15] In Financial Associates, Ltd. v. G.E. Johnson ConstructionCo., 723 P.2d 135 (Colo. 1986), the supreme court held that even if the plaintiff knew of its injury and might have been aware of the possible causes of its injury, the information contained in investigative reports did not so clearly point to the existence of a defect for the court to hold, as a matter of law, that plaintiff should have discovered the defect that caused the injury. [16] Consequently, we reject defendant’s contention that inquiry notice triggers the discovery rule.
B.
[17] Defendant nevertheless contends that, by January 1993, plaintiff knew of her claim, and because this was more than two years before she filed suit, the trial court erred in denying defendant judgment as a matter of law. We conclude that this issue was properly submitted to the jury.
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(Colo.App. 1986). However, if the undisputed facts clearly show that a plaintiff discovered, or reasonably should have discovered, the negligent conduct as of a particular date, the issue may be decided as a matter of law. Winkler v. Rocky Mountain Conferenceof United Methodist Church, supra.
[20] Here, it is undisputed that plaintiff was exposed to ethylene oxide between 1983 and 1993, and that she developed polyneuropathy. In the trial on the statute of limitations issue, a number of exhibits were introduced into evidence. In a letter dated January 13, 1993, plaintiff’s neurologists agreed that it was possible that ethylene oxide caused her polyneuropathy, but recommended other testing because there were also other possible causes. The neurologists also opined that, if ethylene oxide was the cause, decreasing plaintiff’s exposure to ethylene oxide should also return her symptoms to normal. [21] In February of 1993, plaintiff’s neurologists noted in their report that if her polyneuropathy resulted from chemical exposure, her symptoms would dissipate over the next 12 to 18 months. Because of plaintiff’s differential diagnosis, however, the neurologists wrote that they were “not sure why she has this small neuropathy” and that time would help them “understand her neuropathy better.” One of the neurologists confirmed these statements at trial. [22] In March of 1993, the orthopedic surgeon, in response to a request for a narrative report outlining the cause and etiology of plaintiff’s symptoms, informed the insurance carrier by letter that “[w]e still do not have hard evidence to identify the cause and etiology of her symptoms. Her diagnosis is peripheral polyneuropathy. We simply do not know the cause yet.” [23] The orthopedic surgeon then wrote the neurologists inquiring into the cause of plaintiff’s condition. On April 2, 1993, a neurologist responded to the orthopedic surgeon stating that:[24] After receiving the neurologist’s letter, the orthopedic surgeon wrote a second letter on April 26, 1993, to the hospital’s insurance carrier. There, the surgeon stated that “it seems to be clearly stated that it is [the neurologist’s] opinion that [plaintiff’s] polyneuropathy resulted from ethylene oxide exposure.” [25] However, the April 2, 1993, letter stated that plaintiff “could” have had a polyneuropathy. Further, the neurologist who wrote the April 2, 1993 letter testified at trial that he did not intend to express to the orthopedist that he believed that plaintiff’s injury was caused by ethylene oxide. [26] A toxicologist testified that he first saw plaintiff in August of 1993. Sometime thereafter, the toxicologist requested additional documentation from the hospital and formed an opinion that she had an ethylene oxide-induced toxic peripheral neuropathy. Plaintiff testified that on September 2, 1993, this toxicologist informed her that her condition was caused by ethylene oxide and that she was relieved that somebody had finally found an answer to what was wrong with her. [27] Viewing the evidence in the light most favorable to plaintiff, we conclude that there was evidence to support a finding that plaintiff proceeded with reasonable diligence and that she neither knew nor should have known until September 1993 the nature, extent, and cause of her symptoms. Thus, we conclude that the motion for directed verdict was properly denied.The conclusion I came to was that she could have had a polyneuropathy based upon her ethylene oxide exposure.
However, these tend to resolve after exposure in approximately 12-24 months. . . . I think time may help us understand her neuropathy better. . . .
C.
[28] Defendant next contends that plaintiff’s judicial admissions also mandated judgment in its favor. We disagree.
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[30] Judicial admissions are binding on the party who makes them, are evidence against such party, and may furnish the basis for a verdict. However, the alleged admission must also be unequivocal.Anderson v. Watson, 929 P.2d 6 (Colo.App. 1996), aff’d on othergrounds, 953 P.2d 1284 (Colo. 1998).1.
[31] Defendant asserts that plaintiff’s original complaint alleged that she knew of her claim in April 1993. We do not agree with defendant that the trial court improperly disregarded this allegation.
[33] However, plaintiff’s subsequent amended complaints did not contain this allegation. [34] An amended complaint supersedes the original complaint and becomes the sole statement of the plaintiff’s cause of action.See In re Marriage of Lockwood, 857 P.2d 557 (Colo.App. 1993) (rejecting contention that wife’s original petition for division admitted the validity of decree); Ireland v. Wynkoop, 36 Colo. App. 205, 539 P.2d 1349 (1975). [35] Therefore, the trial court did not err in determining that plaintiff’s allegation did not constitute a binding judicial admission.On April 26, 1993, [the orthopedic surgeon] wrote a letter to Memorial’s Worker’s Compensation carrier, stating that Plaintiff’s symptoms were caused by polyneuropathy brought about by exposure to ethylene oxide.
2.
[36] We also reject defendant’s contention that plaintiff made a judicial admission during closing argument.
[38] Plaintiff’s attorney then commented: “And I think that’s a true statement: To the best of her knowledge, information, and belief, those facts were true.” [39] Outside the presence of the jury, defendant argued that these statements constituted a judicial admission. The trial court denied defendant’s motion, reasoning that the emphasis of plaintiff’s argument was based upon her best knowledge, information, and belief. [40] While we do not rule on the propriety of the court’s instruction regarding a presumption, the record supports the trial court’s determination that plaintiff’s assertion was not a judicial admission, but rather, an argument that her certification was true to the best of her knowledge, information, and belief. [41] Thus, we perceive no abuse of discretion.If you find that Ms. Salazar swore that the facts in her original complaint were true and correct to the best of her information, knowledge, and belief, then the law presumes that she read and understood the language. You must consider this presumption, together with all the other evidence in the case, in determining whether or not the facts in her complaint are true.
II.
[42] Defendant further contends that the court’s opening charge to the jury, its instruction at the end of trial, and plaintiff’s ensuing argument to the jury concerning the legal effect of the jury’s findings were highly prejudicial and, therefore, constitute reversible error. We disagree.
[44] At the end of the trial, the jury was also instructed that defendant asserts “that the Plaintiff’s claims were not brought within two years of when Plaintiff knew or reasonably should have known that she had been injured and the cause of that injury. If the Plaintiff’s claims were not filed within that two-year period, then this defeats Plaintiff’s claims.” [45] During closing argument, plaintiff’s counsel reminded the jury that the decision whether plaintiff’s case proceeds “is your decision.” [46] Defendant does not contend that the court’s instructions misstated the law. To the extent that defendant is asserting that such statements invoked sympathy, the jury was instructed that it must not be influenced by sympathy or prejudice for or against any party in the case. Defendant has failed to provide any indication that the jury disregarded this instruction. See People v. Dunlap, 975 P.2d 723 (Colo. 1999). [47] We also reject defendant’s contention that Avery v.Wadlington, 186 Colo. 158, 526 P.2d 295 (1974), and Simpson v.Anderson, 186 Colo. 163, 526 P.2d 298 (1974), compel a different conclusion. In both cases, the supreme court held that it was reversible error to inform the jury as to the operation of the comparative negligence statute or the effect of its percentage findings on the ultimate outcome. [48] Later, however, the General Assembly amended the comparative negligence statute to require that juries be instructed on the ultimate effect of their findings. See Colo. Sess. Laws 1975, ch. 152, § 13-21-111(4), at 570; Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883 (Colo. 1983). Although the General Assembly repealed § 13-21-111(4), see Colo. Sess. Laws 1986, ch. 107, § 13-21-111(4), at 679, it readopted a similar provision in 1987. SeeThe significance of that question is that if the claim is not brought within two
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years of when the plaintiff knew or should have known of that injury and the cause of the injury, then her claim is barred and she cannot prevail on her claim. That’s the question that ultimately this jury’s going to decide.
§ 13-21-111.5(5), C.R.S. 1999. [49] Thus, while both the decisions relied upon by defendants and the statute later adopted by the General Assembly are not directly applicable to the issue presented here, that statute reflects a general public policy to disclose to juries the effect that their deliberative decisions will have. [50] Consequently, we perceive no error in the court’s instructions.
III.
[51] Asserting that plaintiff’s experts had no valid or reliable exposure data and that the causation opinions of plaintiff’s experts are not generally accepted, defendant next contends that it was error for the trial court to admit the testimony of plaintiff’s experts on causation. We reject these contentions.
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A.
[57] While defendant asserts that none of plaintiff’s experts is a neurologist or neurotoxologist and that the experts are not experts on ethylene oxide, such observations do not preclude their testimony. One expert had seen 50 to 60 patients with exposure to ethylene oxide. The other two familiarized themselves with the literature in ethylene oxide poisoning and methodically reviewed plaintiff’s condition to eliminate other causes.
B.
[58] We also reject defendant’s contention that plaintiff’s experts had no valid or reliable exposure data. In this regard, defendant points to evidence of periodic monitoring tests that indicated compliance with Occupational Safety and Health Administration (OSHA) standards when the equipment was tested and that the monitoring results were not made available to plaintiff’s experts.
C.
[63] We also reject defendant’s contention that plaintiff’s causation opinions are not generally accepted. Defendant asserts that scientific and medical literature demonstrate that if plaintiff’s condition was caused by ethylene oxide, she should have recovered virtually 100% after her exposure had ceased for a period of time. Assuming that a general acceptance analysis is applicable here, we reject defendant’s contention. See Brooks v.People, supra (the general acceptance standard applies only to novel scientific devices and processes involving the manipulation of physical evidence).
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that plaintiff has a continuing burning and discomfort in her feet that causes her to walk in a very unusual way and opined that plaintiff’s condition is probably permanent.
[67] Although defendant’s experts offered testimony suggesting that peripheral neuropathies tend to resolve after exposure to ethylene oxide is terminated, defendant did not offer any scientific or medical studies that contradicted the results of the study of the 12 nurses and technicians. Even a defense expert stated that “there’s clearly evidence with exposure to a variety of toxins, including this one, that you can have a permanent deficit.” [68] Consequently, the trial court did not abuse its discretion in admitting expert testimony on the causation issue. IV.
[69] Defendant also contends that it was reversible error for the trial court to deny a new trial based on plaintiff’s improper argument concerning the pro rata liability statute. We are not persuaded.
[Y]ou need to understand that to the extent that you place fault on [the hospital] or [one non-party] or [another non-party] or even Betty, Betty does not recover money for the amounts that you designate to those parties.[71] In a bench conference, defendant asserted that it was improper for plaintiff to inform the jury on what the net result would be with the non-parties. The court ruled that, under § 13-21-111.5(5), the jury was entitled to be told, that if it found plaintiff to be 50 percent at fault or more, she does not recover, but the court distinguished that from informing the jury that, if it found that any of the non-parties were liable, plaintiff’s recovery would be reduced. We need not decide whether the court was correct in this ruling. [72] Plaintiff’s counsel asked the court if she could discuss the allocation of fault from the perspective of defendant in terms of percentages. The court responded that “I’ll allow you to say if you find her damages to be X and you find [defendant] to be 80 percent responsible then she’ll get 80 percent.” Defendant’s counsel did not object to the trial court’s ruling and requested only that the court instruct the jury to ignore the last comment. The trial court instructed the jury in accordance with defendant’s request. [73] Plaintiff’s counsel subsequently described a number of scenarios to the jury including possible awards of $100,000 and defendant’s 50 percent responsibility, a million dollar award and defendant’s 90 percent responsibility, and a $1,656,700 award and non-party responsibility of 15 percent. Defendant did not object to these arguments. [74] A trial court must grant a new trial if it finds that passion, prejudice, or bias has influenced the verdict. Burns v.McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo. 1983); Martinv. Principal Casualty Insurance Co., 835 P.2d 505 (Colo.App. 1991). [75] If a party fails to make a contemporaneous objection to closing argument, objection to its propriety is waived. CombinedCommunications Corp. v. Public Service Co., 865 P.2d 893
(Colo.App. 1993). [76] Here, defendant’s counsel did not object to the trial court’s ruling or to the questions and arguments that followed from plaintiff’s counsel. Thus, denial of defendant’s motion for a new trial was not reversible error.
V.
[77] We also reject defendant’s contentions that plaintiff’s appeals to bias and prejudice required a new trial.
A.
[78] Defendant first seeks a new trial because plaintiff stated during closing argument that “Amsco’s the company that has made Betty Salazar go through two trials to get justice.” We disagree.
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date, her case was time-barred. The trial court further instructed the jury that defendant had a right to assert that defense and it should not infer anything from that.
[80] Because we presume that the jury followed the court’s instruction, a new trial is not warranted on this basis. Vallejov. Eldridge, 764 P.2d 417 (Colo.App. 1988).B.
[81] Defendant also contends that plaintiff asserted that it duplicitously changed its defense from the statute of limitations to the lack of causation between her injuries and exposure to ethylene oxide. However, because defendant did not object to these statements, this contention was not properly preserved for our review. See Combined Communications Corp. v. Public ServiceCo., supra.
C.
[82] Additionally, we reject defendant’s assertion that plaintiff’s reference to defendant as a big company with very large resources warrants a new trial.
(Colo.App. 1998). [84] Because they go outside of the record to appeal to passion and prejudice, statements of counsel regarding a defendant’s ability to pay can be sufficient to warrant granting a new trial.Greene v. Julius Lefkowitz Co., 470 P.2d 586 (Colo.App. 1970) (not selected for official publication). [85] Here, defense counsel stated in closing argument that one of plaintiff’s experts was a professional witness because he charged $625 an hour for his time. Plaintiff in rebuttal responded that:
[Defense counsel] was very critical of the costs that some of the experts charged Mrs. Salazar. But the truth of the matter is that if you’re going to go up against Amsco, you have to hire the best. They’re a very big company. They have very large resources. [The expert] charges a lot of money, he does. He also works for the EPA. He also works for OSHA. He also consults with the United Nations. He’s expensive.[86] We conclude that the response given was reasonable. SeeHalliburton v. Public Service Co., 804 P.2d 213 (Colo.App. 1990) (when a defendant opens the door on a subject by its argument, it is permissible for plaintiff’s counsel to respond).
D.
[87] Nor is a new trial required because the trial court allowed evidence or comment on fear of cancer.
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to post a warning containing the following:
DANGER
ETHYLENE OXIDE
CANCER HAZARD AND REPRODUCTIVE HAZARD
[92] Thus, the record supports the trial court’s determination that there was a reasonable basis for admitting evidence regarding plaintiff’s fear of cancer. E.
[93] We also reject defendant’s contention that plaintiff’s argument that defendant had a duty to retrofit one of the sterilizers with later-developed safety devices warrants a new trial.
(10th Cir. 1992), to support its position that it had no duty to retrofit a product that was not defective. While plaintiff’s counsel agreed with defendant’s interpretation of the law, she argued for an instruction stating that the machine should have been recalled. The court accepted plaintiff’s position that she would not discuss a duty to recall or retrofit until and unless she presented evidence that there was knowledge of the defect at the time of manufacture. [95] The issue was not mentioned again until plaintiff’s counsel referred to retrofitting in her closing argument. At one point, she stated:
[96] Defendant did not make a contemporaneous objection to plaintiff’s statements, and we conclude that the lack of such an objection prevented the trial court from timely addressing the impropriety of the argument or correcting any error. See CombinedCommunications Corp. v. Public Service Co., supra.A different decision could have been made right here in 1981. Let’s retrofit the Portagas or let’s stop selling it. A different decision could have been made in 1981, 1982, and in 1983. And if a different decision had been made here or even here or here, Betty Salazar wouldn’t have a peripheral neuropathy from ethylene oxide because the Portagas would have never been used at [the hospital].
F.
[97] Nor did the trial court err in denying defendant’s motion for directed verdict on plaintiff’s negligence claim.
VI.
[101] Asserting that the jury’s award of manifestly excessive damages was motivated by bias and prejudice, defendant also contends that a new trial is mandated. We disagree.
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VII.
[104] We also disagree with plaintiff’s contentions on cross-appeal.
A.
[105] First, she contends that §§ 13-21-111.5(2), C.R.S. 1999, and 13-21-111.5(3), C.R.S. 1999, are unconstitutional as applied if the non-party hospital-employer designated by the defendant for apportionment of fault is immune from suit under the workers’ compensation law. Thus, she asserts that the statute violates her rights to procedural and substantive due process because § 13-21-111.5 permits a product manufacturer to reduce its damage liability by invoking the workers’ compensation immunity of the employer. We disagree.
1.
[109] Section 13-21-111.5(3)(b), C.R.S. 1999, provides that fault of a non-party may be considered if the defending party gives notice that a non-party was at fault within ninety days following commencement of the action unless the court grants a longer period. The notice must include the non-party’s name, address, and identification and a brief statement of the basis for believing the non-party to be at fault. Additional provisions are included for licensed health care professionals.
2.
[111] In the absence of deprivation of a fundamental right, the applicable test for reviewing a substantive due process challenge to a statute is the rational basis standard of review. Fergusonv. People, 824 P.2d 803 (Colo. 1992). Under this test, a statute is presumed to be constitutional, and the burden is on the party challenging the statute to establish that the statutory provision lacks a rational relationship to a legitimate governmental interest. Dove Valley Business Park Associates, Ltd. v. Board ofCounty Commissioners, 923 P.2d 242 (Colo.App. 1995) aff’d, 945 P.2d 395 (Colo. 1997).
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[112] In Barton v. Adams Rental, Inc., supra, the supreme court confirmed that the pro rata liability statute was intended to cure the perceived inequity under the common law concept of joint and several liability under which wrongdoers could be held fully responsible for a plaintiff’s entire loss, despite the fact that another wrongdoer, who was not held accountable, contributed to the result. See Brochner v. Western Insurance Co., 724 P.2d 1293(Colo. 1986) (the principle of proportionate fault adopted by the General Assembly represents a rational and equitable approach to the problem of allocating ultimate responsibility between or among joint tortfeasors for the payment of damages to an injured party);see also In re Air Crash Disaster at Stapleton InternationalAirport, 720 F. Supp. 1465 (D.Colo. 1989) (statutory effect of shifting loss caused by an immune tortfeasor to the plaintiff is rationally related to the legitimate government interest in requiring defendants to pay no more than their judicially determined share of the loss). [113] In light of this authority, we agree with the trial court’s decision rejecting plaintiff’s substantive due process challenge.
3.
[114] For the reasons set forth above, we also reject plaintiff’s related contention that reduction of liability violates an employee’s right to equal protection of the law.
4.
[115] Nor are we persuaded by the authorities cited by plaintiff. In Newville v. State, supra, the Montana Supreme Court held that the state’s apportionment statute violated substantive due process. It concluded that the statute unreasonably mandated an allocation of percentages of negligence to non-parties without any kind of procedural safeguard. In Plumb v. Fourth JudicialDistrict Court, supra, the Montana Supreme Court noted that the new amendments to the apportionment statute did not provide any opportunity for an unnamed third person to appear and defend himself or herself and concluded that the statute violated the right of substantive due process.
B.
[120] We also disagree with plaintiff that, because the jury verdict exceeded her offer of settlement, she is entitled to $14,945 in costs for copying, long distance telephone and facsimile, messenger services, postage,
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and legal research, which were incurred for the benefit of this litigation.
[121] On March 12, 1996, plaintiff filed an offer of settlement pursuant to § 13-17-202(1)(a)(I), C.R.S. 1999, for $350,000, which defendant rejected. Plaintiff recovered a judgment in excess of her offer. Although plaintiff filed a bill of costs seeking $254,513, the trial court awarded her $114,005.88. [122] A plaintiff is entitled to costs if “the plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in excess of the amount offered. . . .” See § 13-17-202(1)(a)(I). [123] However, a trial court need only award actual costs that are reasonably incurred by a party under § 13-17-202. Scholz v.Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo. 1993). [124] Further, an award of actual costs in an amount less than what a plaintiff has claimed as its actual costs is not per se error.Scholz v. Metropolitan Pathologists, P.C., supra. [125] Here, with record support, the trial court found that plaintiff made certain choices related to costs that were not necessarily reasonable. It also awarded her $4,482.64 in photocopying expenses. [126] Thus, we perceive no abuse of discretion. [127] Accordingly, the judgments are affirmed. [128] CHIEF JUDGE HUME and JUDGE CRISWELL concur.