EFILED Document CO Court of Appeals 11CA0124 Filing Date: Nov 18 2011 1:33AM MST Transaction ID: 40957979

APPENDIX C

District Court of Colorado. El Paso County

Cris CASTILLO et al, Plaintiff/s, v. Roy C. STRINGFELLOW, MD., Defendant/s.

No. 02CV2256

March 7, 2006. Order Granting Defense Motion for Partial Summary Judgment G. David Miller, District Court Judge. The Court has reviewed the Motion for Partial Summary Judgment, the response thereto the reply, as well as all pertinent attachments, and hereby issues the following factual findings, conclusions of law and order: The parties are in agreement that the Plaintiffs pregnancy at the time of the alleged act of malpractice was at seven to eight weeks gestation. The Plaintiffs are not contesting the fact that the embryo of such age cannot survive ex-utero. In other words, to use a term common to the legal vernacular, the embryo was not viable at the time of the alleged act. The Plaintiffs are maintaining also that had the pregnancy continued uninterrupted, the Plaintiff would have delivered a healthy child. While the Defense is not conceding this point, the Court agrees with the Defense contention that such a determination is of no consequence to the Court's analysis of the rather narrow legal issue to be determined. Monetary claims for damages under the private cause of action known as wrongful death are a creature of statute in derogation of common law, and as such, courts are bound to interpret the language of the implementing statutes strictly. Taylor v. Welle, 352 P. 2d 106 (Colo. 1960); Hindry v. Holt, 51 P. 1002 (1897). The language of the Colorado wrongful death statute expressly provides for the recovery of monetary damages for the death of a person. C.R.S. sections 13-21-201 and 13-21-202. Also see the definition of minor as found at C.R.S. section 2-4-401(6) which incorporates the term person as applying to C.R.S. section 13-21-201(1)(c). Neither the Colorado legislature or the Colorado courts have provided any further definition of person under the Colorado wrongful death statute. While the statute does not limit recovery to persons born or viable at the time of death, neither does it expressly or impliedly provide recovery for such a status. Moreover, the Colorado appellate case law provides precious little relevant guidance in this area.

The legislature has passed criminal laws protecting unborn children in the context of illegal abortions C.R.S. section 18-3.5-101 and heightened protection regarding the assault of pregnant women, C.R.S. section 18-13-401(13)(a)(l-ll). However, the Court disagrees that the legislative pronouncements and public policy behind those criminal statutes necessarily implies an intent to create a private cause of action allowing for the collection of damages in the name of a fetus in a civil wrongful death action. The Court is also somewhat confounded as to how the federal district court in Espadero v. Feld, 649 F. Supp 1480 ( D. Colo. 1986) or the state district court in Small v. Duletsky managed to devine a legislative intent to declare that even viable fetus' has a private right to action for wrongful death under the language of our statute. The Court agrees with Counsels' conclusion that Roe v. Wade, 410 U.S. 113 (1973) is inapplicable to the issues before the Court today. The rather thorny issue of abortions in the context of a woman's right to privacy provides no assistance to the Court in interpreting the more narrow issues facing the Court in this decision. The Colorado legislature, not the Court, is vested with determining when and how a wrongful death damages action should be brought in the name of a fetus, whether viable, or otherwise. The Court recognizes that a variety of court decisions in other jurisdictions have found grounds for claims by a fetus, the basis of those holdings was largely rooted in clear and unqualified language by their state legislature voicing an intent to define the unborn as having a cause of action. Danos v. St. Pierre, 402 So. 2d 633 (La. 1981); Connor v. Monkem Co. 898 S.W. 2d 89 (Mo. 1995); Wiersma V. Maple Leaf Farms, 543 N.W. 2d 787 (S.D. 1996). The one exception is the West Virginia case of Farley v. Sartin, 466 S.E. 2d 522 (W.Va.1995) in which that court, for whatever reason, decided that it, not the legislature, was vested with determining the public policy of that state. The Court is not at all persuaded by the argument that to deny a cause of action for a fetus under the Colorado wrongful death statute would allow a potential tortfeasor to cause damages to victims with impunity. The case before the Court today also includes a claim of medical malpractice against the defendant. If that claim has merit, the Plaintiffs will be entitled to the full panoply of damages the law entitles them. Accordingly, for the reasons stated above, the Court declines to find that the second claim for relief may be brought under Colorado law. The defense motion for partial summary judgment is granted and the second cause of action is dismissed from these proceedings. DONE THIS 7th day of March, 2006. BY THE COURT: <> G. DAVID MILLER DISTRICT COURT JUDGE This Order has been served electronically in accordance with C.R.C.P. 121, section 1-26. A copy of this Order containing an original signature is on file in the Clerk's Office. Counsel are Ordered

to serve a copy of this Order on any unrepresented parties

Castillo v. Stringfellow 2006 WL 6222993 (Colo.Dist.Ct.) (Trial Order)