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Miller's Opinion in Castillo v. Stringfellow (2006)

Miller's Opinion in Castillo v. Stringfellow (2006)

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Miller's Opinion in Castillo v. Stringfellow (2006)
Miller's Opinion in Castillo v. Stringfellow (2006)

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Published by: Michael_Lee_Roberts on Jan 24, 2013
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01/24/2013

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APPENDIXC
 
District Court of Colorado.El Paso CountyCris CASTILLO et al, Plaintiff/s,v.Roy C. STRINGFELLOW, MD., Defendant/s. No. 02CV2256March 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 thereply, 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 thatthe embryo of such age cannot survive ex-utero. In other words, to use a term common to thelegal vernacular, the embryo was not viable at the time of the alleged act. The Plaintiffs aremaintaining also that had the pregnancy continued uninterrupted, the Plaintiff would havedelivered a healthy child. While the Defense is not conceding this point, the Court agrees withthe 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 acreature of statute in derogation of common law, and as such, courts are bound to interpret thelanguage 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
. Alsosee 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 providerecovery for such a status. Moreover, the Colorado appellate case law provides precious littlerelevant guidance in this area.
 
The legislature has passed criminal laws protecting unborn children in the context of illegalabortions
C.R.S. section 18-3.5-101
and heightened protection regarding the assault of pregnantwomen, 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 tocreate a private cause of action allowing for the collection of damages in the name of a fetus in acivil 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 todevine 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' conclusionthat
 Roe v. Wade, 410 U.S. 113 (1973)
is inapplicable to the issues before the Court today. Therather thorny issue of abortions in the context of a woman's right to privacy provides noassistance 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 exceptionis 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 tovictims with impunity. The case before the Court today also includes a claim of medicalmalpractice 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 isgranted and the second cause of action is dismissed from these proceedings.DONE THIS 7 day of March, 2006.
th
BY THE COURT:<>G. DAVID MILLER DISTRICT COURT JUDGEThis Order has been served electronically in accordance with C.R.C.P. 121, section 1-26. A copyof this Order containing an original signature is on file in the Clerk's Office. Counsel are Ordered

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