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Songer v. Bowman8/16/1990
Defendant, William J. Bowman, appeals the judgment entered on a jury verdict in favor of plaintiff, Donald F. Songer, on his claim for medical malpractice and the trial court's award of plaintiff's costs. We affirm in part, reverse in part, and remand with directions.
Defendant, a licensed physician specializing in the field of dermatology, prescribed the medication Oxsoralen to be applied by plaintiff in treating his skin condition. This drug is activated by exposure to ultraviolet light, either natural or artificial. Plaintiff's application of the drug to his feet and legs and their subsequent exposure to sunshine resulted in his suffering burns and injuries.
Plaintiff thereafter brought this action alleging defendant was negligent in prescribing and directing the usage of the medication and in failing to warn plaintiff of the hazards, risks, and effects of the drug incident to its use. Plaintiff asserted no claim based upon a theory of lack of informed consent. Whether the application and exposure to sunlight was in accordance with the doctor's directions was in dispute at the trial.
The jury returned a verdict in favor of the plaintiff. The trial court initially granted defendant's motion for new trial, but on plaintiff's motion to reconsider, which was filed more than fifteen days after the granting of the motion for new trial, it reinstated the jury verdict and entered judgment thereon.
I.
Defendant contends that the trial court erred in reinstating the jury verdict pursuant to plaintiff's motion to reconsider because the motion was untimely under C.R.C.P. 59. He argues that, as a result, the court's previous order granting a new trial remains in effect. We disagree.
C.R.C.P. 59 requires a motion for post-trial relief to be filed within 15 days after judgment. By its terms, this rule is applicable to those motions which seek to vacate, amend, or modify the judgment entered. Here, plaintiff's motion for reconsideration does not challenge the entry of the judgment. Rather, it is directed to the order granting a new trial.
An order granting a new trial does not constitute a final judgment. Andrews v. Hayward, 149 Colo. 585, 369 P.2d 980 (1962). Rather, it is an order which is interlocutory in nature, and by reason thereof, the trial court retains jurisdiction to modify or rescind the order prior to the entry of any final judgment thereafter. See Gallimore v. Missouri Pacific R.R. Co., 635 F.2d 1165 (5th Cir. 1981).
As succinctly stated by Professor Moore in discussing comparable provisions of Fed. R. Civ. P. 59:
"Since an order granting a new trial is an interlocutory order, the district court has plenary power over it and this power to reconsider, revise, alter, or amend the interlocutory order is not subject to the limitations of Rule 59 . . . ."
6A. J. Moore, Federal Practice para. 59.13(2) at 59-279 (2d ed. 1989).
We therefore conclude that, contrary to defendant's assertion, plaintiff's motion for reconsideration filed more than 15 days after the trial court's order granting a new trial was not untimely as being contrary to the limitations set forth in C.R.C.P. 59.
II.
Defendant next contends that the trial court erred by instructing the jury that a claim of negligence could be predicated upon a theory of failure to warn of dangers of a prescribed medication. We disagree.
Central to defendant's argument is that the duty of a physician to warn as to the dangers of a medical procedure or prescribed medication is
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