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Salazar v. American Sterilizer Co.3/16/2000
JUDGMENTS AFFIRMED
Division II
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.
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."
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.
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.
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.
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.
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.
As a preliminary matter, to the extent defendant asserts that the court erred in denying its motion for summary judgment based on the statute of limitations, such an order is not appealable. See Feiger, Collison & Killmer v. Jones, 926 P.2d 1244 (Colo. 1996).
A.
As to the applicable standard for determining when the statute of limitations begins to run, we reject defendant's contention tha
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