text:
    2004 WY 14
    Constance SMITH and Donald Smith, Appellants (Plaintiffs), v. Danielle J. PAIZ, Appellee (Defendant).
    No. 03-47.
    Supreme Court of Wyoming.
    Feb. 26, 2004.

      Representing Appellant: Sue Davidson of Aspen Ridge Law Offices, P.C., Cheyenne, Wyoming.
    Representing Appellee: Julie Nye Tiedeken of Tiedeken & Scoggin, P.C., Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¶ 1] Constance and Donald Smith filed a negligence action against Danielle J. Paiz (Paiz) seeking to recover damages arising out of an automobile accident. Prior to trial, the district court issued an order limiting the testimony of Connie Smith’s (Smith) treating physicians to factual matters only because Smith had failed to timely designate them as expert witnesses. Finding no abuse of discretion, we affirm.

ISSUES

[¶ 2] Smith frames the issue on appeal as follows:

Was reversible error committed when the trial court prohibited the treating healthcare providers of Connie Smith from testifying to all facts of the condition and treatment of Connie Smith, including but not limited to diagnosis and prognosis?

Paiz phrases the issue differently:

Did the Trial Court abuse its discretion by prohibiting witnesses who had not been listed as experts from giving expert opinions on diagnosis, treatment and prognosis for [Smith] and limiting their testimony to factual matters?

FACTS

[¶ 3] On December 17, 2001, Smith filed a negligence action against Paiz. Smith alleged that Paiz negligently operated her motor vehicle causing an accident resulting in injury. Smith’s husband was also a party, claiming loss of consortium. The district court issued a Scheduling Order, which required Smith to designate her expert witnesses:

The Plaintiff shall designate expert witnesses and provide the Defendant with a brief outline of the testimony of each expert by April 15, 2002.

On April 15, Smith filed a Designation of Plaintiff’s Expert naming one expert, Dr. Kanter. Pursuant to the Scheduling Order, Paiz filed her Designation of Expert Witnesses on May 24, 2002. Included in Paiz’s designation were two of Smith’s treating physicians, Dr. Fischer and Dr. Rangitsch.

[¶4] On June 21, 2002, Smith filed her Pretrial Memorandum, which listed six of her treating physicians as witnesses: Dr. Barnes, Dr. Vernon, Dr. Reckling, Dr. Greene, Dr. Rangitsch, and Dr. Fischer. In the memorandum, Smith stated that these healthcare providers would testify about Smith’s treatment and “current condition, and prognosis for her future health care needs.” Paiz responded with a Motion to Strike the named doctors as witnesses on the grounds that they had not been designated as expert witnesses pursuant to the court’s Scheduling Order. Paiz claimed the late designation prejudiced her because “all of [Smith’s] strategy in the case and decisions with regard to [Paiz’s] own expert witness designation and independent medical examinations” were based on Smith’s designation of only Dr. Kanter as an expert.

[¶ 5] Paiz reiterated her position in a Supplement to Motion to Strike Witnesses, and Smith responded with a Memorandum in Opposition to [Smith’s] Motion to Strike Witnesses. Relying on W.R.C.P. 26(b)(4), Smith contended that she did not have to designate her treating physicians as expert witnesses because they had not acquired or developed their knowledge or opinions in anticipation of litigation or trial and, accordingly, were not experts. She also argued that no prejudice attached to Paiz because of the failure to designate the treating physicians as experts. Smith stressed that Paiz was in possession of all of her medical records and had deposed several of the witnesses. Smith concluded that since Paiz had access to the records on which the treating physicians’ opinions would be based and had the opportunity to depose each of them, she could not then claim prejudice.

[¶ 6] On July 17, 2002, the district court issued its Order on Motions. The court found that Smith’s failure to properly designate the witnesses as experts precluded her from offering any opinion testimony requiring expertise from them. The court ordered that the doctors could testify as fact witnesses about their treatment of Smith but, as fact witnesses, they were not allowed to provide expert opinions, including diagnoses, prognoses or determinations of causation requiring medical expertise. The court did allow Smith to elicit expert opinion testimony from her two treating physicians, who had been designated as experts by Paiz, so long as a proper foundation was established.

[¶7] The matter proceeded to trial and the jury found Paiz to be 60 percent at fault and Smith 40 percent. The jury set Smith’s damages at $2,500, which was reduced to $1,500 under the comparative fault statute. The jury set the damages of Smith’s husband, Donald Smith, at zero dollars. Smith has appealed.

DISCUSSION

[¶ 8] Smith contends that the district court erred in barring her treating physicians from providing expert opinions, including diagnoses, prognoses or any determination relating to causation requiring medical expertise. Pointing to W.R.C.P. 26(b)(4), Smith argues that the test to determine whether a witness is an expert is whether the facts known and the opinions held by the witness were acquired or developed in anticipation of litigation or trial. Since her treating physicians acquired their knowledge and formed their opinions based on their relationship with her and not in anticipation of litigation or trial, Smith concludes that the witnesses were not “experts” and thus she was not required to designate them as such. Smith argues that she was prejudiced by the exclusion of this testimony because her claims for pain and suffering and the necessity of future medical treatments could not be explained adequately to the jury without it. She points out that Paiz had access to all of her medical records upon which the witnesses’ testimony and opinions would be based and had deposed several of them. Therefore, since Paiz knew the nature of the facts and the opinions based thereon that were to be provided by these witnesses, she could not have suffered any prejudice.

[¶ 9] An “expert” witness is a witness entitled to give opinion testimony. W.R.E. 702. Treating physicians may be fact witnesses, and if they offer an opinion, they may be expert witnesses also. Then-status depends on the content of their testimony: If they only testify as to what they observed and did within the physician-patient relationship, then they would be fact witnesses; if, in addition to testifying to the facts, the treating physicians offered an opinion, then they would be expert witnesses.

[¶ 10] What distinguishes a treating physician when testifying as an expert from an expert retained in anticipation of litigation or for trial is not the content of his or her testimony, “but the context in which he became familiar with the plaintiffs injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion.” Schreiber v. Estate of Kiser, 22 Cal.4th 31, 91 Cal.Rptr.2d 293, 989 P.2d 720, 723 (1999). The distinction between a treating physician and a retained expert is important only within the context of the discovery process. Rule 26(b)(4) carves out an exception to the general rules established by Rules 26(a) and 26(b)(1) with respect to expert opinion testimony acquired or developed in. anticipation of litigation. Chakales v. The Hertz Corporation 152 F.R.D. 240 (N. Dist. Ga.1993). Experts, such as treating physicians, who have information that was not developed or acquired in anticipation of litigation are subject to the general discovery provisions of Rules 26(a) and 26(b)(1). Rule 26(b)(4) provides limitations on the discovery of information from experts who acquired their knowledge specifically in anticipation for litigation or for trial. The Rule provides different standards for discovery when the retained expert will be used as a trial witness, Rule 26(b)(4)(A), and when the retained expert was specifically employed for trial purposes but will not testify at trial, Rule 26(b)(4)(B). See 8 Charles Alan Wright, Arthur* R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil 2d §§ 2029-34 (1994 & 2003 Supp.).

[¶ 11] The federal district court in the aforementioned Chakales decision addressed a similar argument to that posited by Smith here. That court observed:

Rule 702 ' of the Federal Rules of Evidence describes an expert as one who has “scientific, technical, or other specialized knowledge [which] will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. The rule provides further that “a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise”. Id. Based on plaintiffs’ description of the testimony expected to be given by the treating physicians listed in Attachment F-l of the proposed Pretrial Order, plaintiffs clearly intend to elicit scientific opinion testimony, regarding a fact in issue, in order to assist the trier of fact, and intend to elicit such testimony from persons specially qualified to render such opinions.
Based on the foregoing, the Court concludes that the treating physicians at issue are “experts” pursuant to the applicable rule of evidence and that Rule 26(b)(4) does not alter in any way the definition of “expert” for purposes of discovery. Indeed, even without an examination of case law, the clear language of the rule is at odds with plaintiffs’ argument that it limits the definition of an expert to one whose opinion was acquired or developed in anticipation of litigation. That is, Rule 26(b)(4) addresses discovery of the opinions of experts that are “otherwise discoverable” and that were “acquired or developed in anticipation of litigation.” ... By its own terms, the rule envisions the existence of experts whose opinions were not acquired or developed in anticipation of litigation.

Chakales, 152 F.R.D. at 245; see also Clark v. Raty, 137 Idaho 343, 48 P.3d 672 (2002); and Lee v. Knutson, 112 F.R.D. 105 (N.D.Miss.1986).

[¶ 12] In support of her position, Smith relies on our decision in Wardell v. McMillan, 844 P.2d 1052 (Wyo.1992). In that case, the defendants appealed a district court protective order prohibiting them from deposing one of the plaintiffs treating physicians regarding his expert opinion on the issues of causation and standard of care. Id. at 1065-67. The protective order limited the scope of the treating physician’s deposition to the factual circumstances related to the plaintiffs condition and treatment. The defendants argued that the doctor’s expert opinion should have been discoverable because the plaintiff waived any privilege by filing suit. After holding that the treating physician’s opinion was not privileged, we nevertheless upheld the protective order based upon the circumstances of the case including the fact that the plaintiff had never designated the doctor as an expert witness for trial which made it unnecessary for the defendants to depose him regarding his expert opinion for purposes of cross-examination. Id. at 1067. We also noted that the doctor was a treating physician who was not “retained or specially employed” by the plaintiff in anticipation of trial, so his expert testimony was not discoverable under Rule 26(b)(4)(B). Id.

[¶ 13] The Wardell case does not advance Smith’s argument. Indeed, our decision in that case merely serves to highlight the distinction that Rule 26 draws between experts retained specifically in anticipation of litigation and other experts for discovery purposes. The treating physician was not designated by the Wardell plaintiff as an expert apparently because there was no intent to use the doctor as an expert witness during trial. The treating physician could have been an expert witness but the plaintiff simply chose not to utilize him as such. That fact distinguishes Wardell from the situation at hand where Smith clearly intended to use her treating physicians in an expert witness capacity.

[¶ 14] A treating physician is, by definition, an expert witness if asked to provide opinion testimony. Rule 26(b)(4) is irrelevant and inapplicable and does not provide any justification for Smith’s failure to timely designate her treating physicians as experts. Rule 26(b)(4) does not somehow magically convert a treating physician offering opinion testimony into a lay witness. Lee, 112 F.R.D. at 107-08. The record shows that Smith intended to elicit expert medical testimony from her treating physicians relating to diagnoses, prognoses and causation. The district court’s Scheduling Order required Smith to designate her expert witnesses and provide Paiz with a brief outline of the testimony of each expert by April 15, 2002. Smith failed to comply with the district court’s order.

[¶ 15] The question that remains is whether the district court’s remedy — the prohibition on the treating physicians from testifying as to their opinions and restricting them to factual testimony — was appropriate. A ruling on the admission or exclusion of expert witness testimony based on a violation of a pre-trial order is within the trial court’s discretion, and we will not overturn the decision absent a showing of an abuse of that discretion. Winterholler v. Zolessi, 989 P.2d 621, 624-25 (Wyo.1999); Oukrop v. Wasserburger, 755 P.2d 233, 237-38 (Wyo.1988).

“Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985); Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)).”

Winterholler, 989 P.2d at 624-25 (quoting Rogers v. State, 971 P.2d 599, 601 (Wyo.1999)). In Winterholler, we set out the following factors for consideration when determining whether a party’s supplementation of its disclosures after the conclusion of expert discovery is fair under the circumstances:

(1) whether allowing the evidence would incurably surprise or prejudice the op- . posing party;
(2) whether excluding the evidence would incurably prejudice the party seeking to introduce it;
(3) whether the party seeking to introduce the testimony failed to comply with the ■ evidentiary rules inadvertently or willfully;
(4) the impact of allowing the proposed testimony on the orderliness and efficiency of the trial; and
(5) the impact of excluding the proposed testimony on the completeness of the information before the court or jury.

Winterholler, 989 P.2d at 628 (citing Dada v. Children’s National Medical Center, 715 A.2d 904, 909 (D.C.1998)). The decision from which we adopted these factors explained their application:

The development of this list of factors represented an attempt to strike a balance between the “concern for judicial economy” and the “strong judicial and societal preference for determining cases on the merits.” [Abell v. Wang, 697 A.2d 796, 800 (D.C.1997) ] (citing Johnson v. Lustine Realty Co., 640 A.2d 708, 709 (D.C.1994)).... The list is not exclusive. The trial court may consider other factors that affect the balance in question, taking into account the status of the case at the time of the request to reopen [discovery]. For example, the third factor’s reference to failure to comply with “evidentiary rules” does not preclude the court from considering failure to comply with other procedural requirements. Similarly, the fourth consideration can be expanded to consider the orderliness and efficiency of not only the trial itself but also the court’s overall handling of the case and, in appropriate situations, of the court’s calendar. In particular cases or circumstances, other factors may come into play. [Footnote omitted] ... Within the analysis of “willfulness,” for example, the court may consider the reasonableness of the party’s explanation for failing to meet the deadline, as well as any pattern of noncompliance. See Abell, supra, 697 A.2d at 802-03 (explaining that the plaintiff in that case “had no prior history as a dilatory plaintiff’). In addition, when considering whether allowing the evidence would incurably surprise or prejudice the opposing party, the court may consider the behavior of the opposing party in complying with scheduling orders. Parties who have missed deadlines and been lax in complying with the scheduling ordei’s themselves may have a difficult time convincing the court that they will be prejudiced by a delay caused by the opposing party, while parties who have been diligent in maintaining the schedule will have a stronger argument for prejudice. See Abell, supra, 697 A.2d at 802 (“The fact that defendants filed their own witness list late further mitigates the prejudice attributable to [plaintiff].”).
Finally, as we explained in Abell, although “the trial court still must consider ‘the totality of circumstances’ of each ease,” the more rigorous and formal track on which civil eases are now placed allows “the trial court [to] accord greater weight than previously allowed for prejudice caused by delay to the overall administration of justice.” Id. (citing Van Man v. District of Columbia, 663 A.2d 1245, 1248 (D.C.1995)). As this court has explained,
[n]oneompliance with court orders and rules may cause the system to bog down and may adversely affect other litigants. When a plaintiff is personally responsible for this type of delay, he or she prejudices not only the defendant but also the ability of other persons — -persons that are doing what is necessary to follow the rules — -to utilize the system.
Perry v. Sera, 623 A.2d 1210, 1219 (D.C.1993) (referring to a plaintiffs failure to comply with discovery orders).

Dado, 715 A.2d at 909-10. Keeping these considerations in mind, we turn to the question before us.

[¶ 16] The district court did not set out any reasons for its ruling restricting the trial testimony of Smith’s undesignated experts. Ideally, the court should have done so. Nevertheless, support for the court’s decision is clearly discernable from the record. In her Motion to Strike Witnesses, Paiz set out how Smith’s failure to designate her treating physicians as experts would prejudice her:

Counsel for Defendant made decisions with regard to who she would list as expert witnesses and decisions with regard to whether to conduct independent medical examinations based on Plaintiffs expert witness designation. Dr. Kanter [Smith’s sole designated expert] gave his opinion that there were several injuries and complaints which the Plaintiff has which he could not say were related to the accident in question. Given Dr. Ranter’s opinion, counsel for Defendant did not undertake any further discovery with regard to some of the unrelated problems which were treated by various doctors. Plaintiff has now listed in her Pretrial Memorandum medical care providers to give expert witness testimony, including opinions with regard to her current condition and prognosis for the future. It appears that she is going to use these witnesses to testify with regard to causation of the injuries.
... It is unfairly prejudicial to now allow Plaintiff to designate five new expert witnesses which had not been previously designated and the Court should enter its Order striking said witnesses and disallowing any testimony from said witnesses.

Furthermore, in her Supplement to Motion to Strike Witnesses, Paiz noted that Smith had merely identified her treating physicians and indicated that they would provide expert testimony at trial but without setting forth a description of the substance of their testimony.

[¶ 17] The prejudice identified by Paiz is manifest on the record. Smith did not identify her treating physicians as experts within the time limits established by the Scheduling Order. Smith did not file a motion to allow a late designation of these witnesses on her volition and identified them only in response to an interrogatory from Paiz. Smith never provided a “brief outline of the testimony” expected from her treating physicians as required by the Scheduling Order. Furthermore, Smith’s intent to use these witnesses as experts was not disclosed to Paiz until she filed her Pretrial Memorandum on June 21, 2002, barely a month before the scheduled trial date of July 30, 2002. To require Paiz to prepare for the testimony of six additional experts within the time remaining for trial would be to impose an extraordinary and unreasonable burden upon her. In contrast to the prejudice Smith’s failure to timely designate her expert witnesses caused Paiz, the prejudice to Smith from the district court’s decision to restrict testimony from those witnesses was slight. The court’s order allowed the treating physicians to testify as fact witnesses. Furthermore, Smith still had the testimony of her designated expert, and the court’s order allowed Smith to use two of her other treating physicians who had been designated as experts by Paiz, so long as she laid the proper foundation.

[If 18] When we consider the foregoing within the context of the factors we have laid out, it is clear that given the nature and scope of Smith’s noncompliance with the Scheduling Order, allowing Smith’s witnesses to testify as experts would have “incurably prejudiced” Paiz. Smith, on the other hand, possessed ample resources despite the court’s ruling to present the merits of her claim to the jury, and so the prejudice to her was significantly mitigated. It also weighs against Smith that there is the implication, contained within the record, that her motivation for using her treating physicians as experts appears to be due to the apparent weakness of the testimony concerning some of her medical claims that was proffered by her retained expert, Dr. Kanter. In addition, we note that allowing the proposed expert testimony would have had a negative impact on the orderliness and efficiency of the trial given the minimal amount of time that remained between Smith’s submission of her Pretrial Memorandum identifying her witnesses and commencement of the trial. Accordingly, we conclude that, under the circumstances, the district court did not abuse its discretion.

[¶ 19] Affirmed.

      . Rule 26. General provisions governing discovery.

      (b) Discovery scope and limits.- — Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

      (4) Trial Preparation: Experts. — Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
      (A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
      (ii) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Upon motion, the court may order further discovery by other means. Such deposition or other discovery is subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C), concerning fees and expenses as the court may deem appropriate.
      (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
      (C) Unless manifest injustice would result:
      (i) The court shall require that the party seeking discoveiy pay the expert a reasonable fee for time spent in responding to discoveiy under subdivisions (b)(4)(A)(ii) and (b)(4)(B); and
      (ii) With respect to discovery obtained under subdivision (b)(4)(A)(ii) the court may require, and with respect to discoveiy obtained under subdivision (b)(4)(B) the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

      . Rule 702. Testimony by experts.
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.


source: Caselaw Access Project

author: Justice RICE Justice COATS,

license: Public Domain

text:
    Eric STEINER, Petitioner, v. MINNESOTA LIFE INSURANCE COMPANY, a foreign corporation; Tim Schloesser; and Larry Norlin, Respondents.
    No. 03SC084.
    Supreme Court of Colorado, En Banc.
    Feb. 23, 2004.

      Salmon, Lampert & Clor, P.C., Brian J. Lampert, Greenwood Village, Colorado, Attorney for Petitioner.
    Welborn Sullivan Meek & Tooley, William R. Rapson, Stephen A. Bain, Denver, Colorado, for Respondent Minnesota Life Insurance Company.
    Cockrell, Quinn & Creighton, Richard M. Foster, Denver, Colorado, for Respondents Tim Schloesser and Larry Norlin.
   Justice RICE

delivered the Opinion of the Court.

The Petitioner, Eric Steiner, seeks review of a court of appeals decision affirming the trial court’s dismissal of his case. See Steiner v. Minnesota Life, 71 P.3d 1017 (Colo.App.2003). The Petitioner had brought suit against Minnesota Life Insurance Company (“Minnesota Life”) and two of its agents for breach of contract, bad faith, and outrageous conduct arising out of Minnesota Life’s refusal to continue paying disability benefits. Prior to trial, the Petitioner refused to answer certain questions regarding his underlying disability, invoking his Fifth Amendment privilege against self-incrimination in response to approximately forty questions. Ultimately, the trial court dismissed the Petitioner’s claims based on his refusal to answer those questions. The court of appeals upheld that dismissal, ruling that “plaintiffs refusal to answer the deposition questions directly blocked the discovery relevant to the resolution of this dispute, and dismissal is an appropriate remedy.” Steiner, 71 P.3d at 1021.

We granted certiorari on the issue of whether the court of appeals applied the wrong constitutional standard in affirming the dismissal of the Petitioner’s claims after his invocation of the privilege against self-incrimination. We find that both the trial court and the court of appeals erred in failing to properly balance the Petitioner’s constitutional privilege against self-incrimination against Minnesota Life’s right to adequately defend itself. We now hold that, prior to determining what consequence will flow from a plaintiffs invocation of the privilege, a trial court must consider the defendant’s need for the information withheld, whether the defendant has any alternative means of obtaining that information, and whether any effective remedy, short of dismissal, is available to safeguard both parties’ interests.

Thus, we now reverse the court of appeals’ decision and remand this case to the court of appeals with directions to reinstate the Petitioner’s case before the trial court for px'o-eeedings consistent with this opinion.

1. Facts and Procedural History

A. The Disability Policy

The Petitioner was an anesthesiologist who, in 1991, obtained a disability insurance policy (the “Policy”) from Minnesota Life which provided an “occupational-specific benefit.” The Policy provided for the payment of a monthly income benefit of $13,384 if the Petitioner became disabled, such that he could not practice anesthesiology, for the duration of the disability. In 1998, the Petitioner became disabled with an alcohol and narcotic addiction, along with a panic disorder, and was therefore unable to continue practicing as an anesthesiologist.

The Petitioner underwent treatment for his addiction and filed a claim with Minnesota Life under the Policy. Minnesota Life paid out benefits for several months, but in June 1999 Minnesota Life discontinued payments based on its determination that the Petitioner was no longer disabled under the terms of the Policy. Rather, because the Petitioner’s addiction was “in remission” and his panic disorder was “not disabling at [that] time,” Minnesota Life concluded that the Petitioner could in fact return to practice as an anesthesiologist. Following the termination of benefits, the Petitioner’s own treating physicians sent repeated letters to Minnesota Life, reiterating their medical opinion that the Petitioner “remain[ed] disabled by his panic disorder and his substance dependence with respect to the practice of anesthesiology.” Despite this information, Minnesota Life refused to reinstate the Petitioner’s disability benefits. Consequently, the Petitioner filed suit, alleging under both contract and tort theories that his continuing panic disorder and drug addiction, with its high risk of relapse, rendered him permanently unable to work as an anesthesiologist and that he therefore was entitled to continued disability benefits under the Policy.

B. Discovery Dispute

Prior to trial, Minnesota Life deposed the Petitioner regarding various aspects of his drug addition, including the particular circumstances under which he had abused narcotics. The Petitioner answered dozens of questions regarding his personal background, his panic attack disorder, his drug treatment experience, the prognosis given by his physicians regarding his future inability to work in anesthesiology, and his understanding of his coverage under the Policy. Additionally, the Petitioner answered a series of questions regarding the nature of his drug addiction, how and when the addiction began and developed, and the particular drugs to which he was addicted. However, of the approximately 125 questions directly addressing the Petitioner’s drug addiction, the Petitioner refused to answer about 40 questions on Fifth Amendment grounds. Specifically, the following questions are typical of those which the Petitioner refused to answer:

Q: Where? What hospital [were you at when you first took the Sufenta]?
Q: What was the amount of the Sufenta?
Q: Where did you obtain the Sufenta?
Q: And [you took the Sufenta] during the course of an operation?
Q: How did you get the drugs?
Q: Did you steal the drugs?
Q: Did you use a syringe to take the drugs?
Q: What was the dosage of the Sufenta?
Q: Did you have the permission of anyone to take the Sufenta?
Q: What impact did the Sufenta have on your patients?
Q: How many times a day would you take Sufenta on those occasions between November '97 and May '98?
Q: [W]hat efforts did you make over that same period of time to cover up the fact that you were taking Sufenta?

Based on his fear of exposing himself to criminal liability, the Petitioner refused to answer those questions which tended to show that he had stolen the narcotics, that he had practiced anesthesiology while under the influence of narcotics, or that he had endangered patients’ lives while taking narcotics. The Petitioner also declined to answer questions geared at his knowledge of the illegality of the alleged acts, including whether he knew that it was a felony to take Sufenta illegally and whether he would still take illegal drugs despite a knowledge that it might result in inearcei-ation.

Shortly after the deposition, Minnesota Life moved for summary judgment based on the Petitioner’s refusal to answer certain questions regarding his history of drug abuse. In support of its motion, Minnesota Life asserted that the Petitioner’s “refusal to answer questions relating to the amounts, frequency and manner of his use of drugs severely prejudice[d] Minnesota Life’s ability to prepare a defense of this case.” In his response to the summary judgment motion, the Petitioner asked that the trial court adopt a balancing approach to his invocation of the Fifth Amendment, wherein the court would evaluate the defendant’s need for the information, the defendant’s ability to obtain the pertinent information through other means, and whether any adequate alternative to dismissal was available.

The Petitioner argued that the information sought — including whether he had taken the narcotics while practicing with patients and whether he had stolen the narcotics — was not directly relevant to whether he suffered a disability which rendered him unable to practice as an anesthesiologist. Rather, the Petitioner argued that his disability claim rested solely on the fact of his addiction and the danger for relapse when placed in a high stress environment with ready access to the narcotics. The Petitioner noted that because he had responded to the majority of questions asked and had provided Minnesota Life with copies of his medical records which detailed the nature and extent of his narcotic addiction, Minnesota Life was not sufficiently hampered in its defense of the claim so as to warrant dismissal. Additionally, the Petitioner offered to provide the requested information to the court for an in camera review in order to allow the court to evaluate Minnesota Life’s need for the information. Thus, the Petitioner concluded that because Minnesota Life had not been deprived of any information which was material to its ability to defend itself and because Minnesota Life had several other means of obtaining pertinent information regarding the Petitioner’s drug addiction, dismissal was therefore not warranted at this stage of the litigation. Alternatively, the Petitioner suggested that the court might turn the motion for summary judgment into a motion to compel, thereby allowing the Petitioner an opportunity to answer the questions or face dismissal based on his refusal.

On April 10, 2001, the trial court converted Minnesota Life’s motion for summary judgment into a motion to compel, which it simultaneously granted, ordering the Petitioner to appear for another deposition and to answer the disputed questions or face dismissal with prejudice. As the basis for its ruling, the trial court stated the following:

Simply put, the “how, and the how often” as well as the “why and the what ifs” of his addictions and anxieties are directly relevant to the claims as well as to the defenses and are, at a minimum, critical to defense preparation for trial, including for the purposes of impeachment. Plaintiffs arguments in opposing this discoverable information request the Court to make determinations which are inappropriate at this stage, i.e., to weigh the disputed evidence; to accept one expert’s qualifications over that of another expert, etc; the Court declines to do so. Neither is the Court persuaded that Defendant essentially has everything it needs by what it has already obtained through the disclosure and discovery to date.

Thus, the trial court determined that the withheld information was in fact relevant to Minnesota Life’s defense, although it made no additional findings regarding the Petitioner’s Fifth Amendment privilege against self-incrimination or the availability of less burdensome remedies. Consequently, the trial court ordered the Petitioner to answer the disputed questions or face dismissal. However, the trial court did grant the Petitioner’s subsequent motion to stay proceedings pending appeal of the trial court’s order to this court under C.A.R. 21. We denied his Petition for Writ of Prohibition and Writ of Mandamus on May 29, 2001, resulting in another order from the trial court that the Petitioner submit to the deposition and answer questions regarding the details of his drug abuse.

Less than a week before his second deposition was scheduled to occur, the Petitioner filed a motion for a protective order with the trial court, requesting that any answers to the disputed questions given at the impending deposition be prohibited from disclosure outside the parties of the case. At the deposition on July 3, 2001, the Petitioner refused to answer questions until the court ruled on his motion for the protective order. That day, a telephonic conference was conducted wherein the trial judge heard argument from both parties on the issue and then denied the Petitioner’s motion for a protective order based on her finding that she had “not been presented with any legal or factual grounds which would make it appropriate to enter this order.” The trial judge further stated, “I would note that Dr. Steiner has brought this case. For any plaintiff to bring a case necessarily involves some scrutiny in that they are a matter of public record.”

Based on the trial judge’s ruling, the Petitioner refused to continue with the deposition and again filed with this court a Petition for Writ of Prohibition and Writ of Mandamus, seeking review of the trial court’s refusal to grant a protective order. While that petition was pending, the trial court granted Minnesota Life’s motion to dismiss based on the Petitioner’s continuing refusal to answer certain questions regarding his drug abuse, rendering his second Petition with this court moot.

In September 2002, the Petitioner appealed that dismissal to the court of appeals, arguing that the trial court violated his Fifth Amendment rights when it dismissed his claim based on his invocation of the privilege against self-incrimination. Noting that it “review[s] such discovery rulings for abuse of discretion,” the court of appeals affirmed the trial court’s dismissal. Steiner v. Minnesota Life Ins. Co., 71 P.3d 1017, 1020-22 (Colo.App.2003). The court of appeals acknowledged the Petitioner’s right to invoke the Fifth Amendment in a civil proceeding, even in pre-trial discovery, and found that the Petitioner had properly invoked the privilege insofar as he had not yet incriminated himself regarding the means by which he had acquired the narcotics. Id. at 1021. Nevertheless, the court of appeals concluded that the Petitioner’s “refusal to answer the deposition questions directly blocked the discovery relevant to the resolution of the dispute, and dismissal is an appropriate remedy.” Id.

In upholding the trial court’s dismissal, the court of appeals engaged in little analysis regarding the competing constitutional rights of a plaintiff to assert his Fifth Amendment privilege and of a defendant to prepare his defense. Because we find that both the trial court and the court of appeals failed to apply the appropriate standards to the constitutional dilemma posed, we now reverse the dismissal.

II. Discussion

A. Fifth Amendment’s Applicability to Civil Cases

At issue in this case is the tension between C.R.C.P. 26(b)(1), which provides that “parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party,” and the Fifth Amendment, which protects a person from having to testify in any way which might tend to subject himself to criminal liability. U.S. Const, amend. V; see also Hoffman v. U.S., 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951) (“The privilege afforded not only extends to answers that would in themselves support a conviction ... but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.”). We begin by noting that the issue of whether a plaintiffs claims may be dismissed based on his proper invocation of the privilege against self-incrimination is a matter of first impression for this court. However, based on the Fifth Amendment jurisprudence of the United States Supreme Court, as well as the guidance provided by the several other courts who have addressed similar issues to that before us today, we now adopt the balancing approach which has become the majority rule across the country.

Although the Fifth Amendment provides only that “no person ... shall be compelled in any criminal case to be a witness against himself,” U.S. Const. amend. V, the privilege against self-incrimination has long been applied in the civil context. See McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924) (“The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it”). Moreover, even a plaintiff in a civil case may invoke that privilege, and does not surrender his constitutional right merely by the filing of an action. See McMullen v. Bay Ship Management, 335 F.3d 215, 218 (3d. Cir.2003) (“ ‘It is inconceivable that by exercising the constitutional right to bring or defend an action a person waives his or her constitutional right not to be a witness against himself or herself, and no case has so held.’ ”) (quoting 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2018 (2d ed.1994)). Rather, the issue before us today is the impact of a plaintiffs proper invocation of the privilege upon the underlying litigation.

The United States Supreme Court has repeatedly stressed that the privilege against self-incrimination is one which should be exercised without penalty, and that courts should avoid “the imposition of any sanction which makes assertion of the Fifth Amendment privilege ‘costly.’ ” Spevack v. Klein, 385 U.S. 511, 515, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) (quoting Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). On the other hand, a civil defendant is entitled to the information necessary to adequately prepare his defense and refute the underlying claim. See, e.g., Serafino v. Hasbro, Inc., 82 F.3d 515, 518 (1st Cir.1996) (declaring that, in a civil proceeding, “one party’s assertion of his constitutional right should not obliterate another party’s right to a fair proceeding”). Thus, at issue in this case is the appropriate balance to be struck between a plaintiffs constitutional privilege against self-incrimination and a defendant’s right to adequately defend the claim brought against him.

Courts struggling with this dilemma have reached varying results. In the earlier cases, courts were more willing to dismiss a case where a plaintiff claimed the privilege against self-incrimination. See, e.g., Lyons v. Johnson, 415 F.2d 540, 541 (9th Cir.1969) (upholding the dismissal of a plaintiffs civil rights claims based on her “continued and unyielding refusal to submit herself to any depositional interrogation or discovery whatsoever in relation to her claims”); Kisting v. Westchester Fire Ins. Co., 290 F.Supp. 141, 149 (W.D.Wis.1968) (“A plaintiff in a civil action who exercises his privilege against self-incrimination to- refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion.”).

Under the more recent approach, however, the majority of jurisdictions have adopted a test which balances the competing rights of a plaintiff to exercise his privilege against self-incrimination and of a defendant to adequately defend the claim brought against him. E.g., McMullen v. Bay Ship Mgmt., 335 F.3d 215 (3d Cir.2003)(reversing dismissal as improper based upon the plaintiffs invocation of the privilege against self-incrimination because the trial court had failed to consider less severe sanctions); Serafino v. Hasbro, 82 F.3d 515 (1st Cir.1996) (upholding the dismissal of an employee’s retaliation action based upon his invocation of the privilege against self-incrimination because the employer had a substantial need for the withheld information, there was no less burdensome means of obtaining the information, and there was no adequate alternative to dismissal); United States v. 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 83-4 (2d Cir.1995) (noting in a civil forfeiture action that “all parties — those who invoke the Fifth Amendment privilege and those who oppose them — -should be afforded every reasonable opportunity to litigate a civil case fully and [that] exercise of Fifth Amendment rights should not be made unnecessarily costly”) (emphasis in original)(internal citations omitted); Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir.1979) (holding that when a plaintiffs silence is guaranteed under the Fifth Amendment, dismissal of his civil action is appropriate only when other, less burdensome remedies would be ineffective in preventing unfairness to the defendant); Campbell v. Gerrans, 592 F.2d 1054 (9th Cir.1979) (holding that the trial court abused its discretion when it dismissed the plaintiffs’ case based on their refusal to answer 4 out of 34 interrogatories on Fifth Amendment grounds).

We agree with the modern trend which requires that “[a] trial court must carefully balance the interests of the party claiming protection against self-incrimination and the adversary’s entitlement to equitable treatment.” SEC v. Graystone Nash, Inc., 25 F.3d 187, 192 (3d Cir.1994). In joining the majority approach, we note the constitutional imperative that a person’s privilege against self-incrimination not be too costly, while also acknowledging that such a privilege must not be wielded to unfair advantage over a defendant seeking to defeat a claim brought against him. We therefore hold that where a plaintiff properly invokes the privilege against self-incrimination, either prior to or during trial, a trial court must engage in a three-part balancing test before determining what adverse consequences, if any, will flow from that invocation.

Specifically, when confronted with the tension between the plaintiffs invocation of the privilege and the defendant’s need for discovery, a trial court must determine: (1) whether the defendant has a substantial need for the information withheld; (2) whether the defendant has an alternative means of obtaining the information; and (3) whether any effective, alternative remedy, short of dismissal, is available. In applying the third prong of this analysis, the trial court must ensure that “the detriment to the party asserting [the privilege is] no more than is necessary to prevent unfair and unnecessary prejudice to the other side.” Graystone Nash, 25 F.3d at 192.

The appropriate remedy will of course depend upon the facts and circumstances of each case. In some instances, courts have found it proper to impose a stay of the civil proceeding until the parallel criminal proceeding has completed. E.g., McMullen v. Bay Ship Management, 335 F.3d 215, 219 (3d Cir.2003) (reversing a trial court’s dismissal where both parties had suggested that the case be stayed until plaintiff “[was] no longer under the cloud of criminal prosecution”). In other cases, courts have found that allowing the factfinder to draw an adverse inference from the party’s silence substantially levels the playing field for the opposing party. See, e.g., S.E.C. v. Colello, 139 F.3d 674, 677 (9th Cir.1998) (“Parties are free to invoke the Fifth Amendment in civil cases, but the court is equally free to draw adverse inferences from their failure of proof.”). The Fourth Circuit has offered a myriad of alternatives which help ensure the fairness of the proceeding while preserving a civil litigant’s right to invoke the Fifth Amendment. In re Grand Jury Subpoena, 836 F.2d 1468, 1476-77 (4th Cir.1988) (holding that a civil protective order did not substitute for the invocation of the privilege against self-incrimination). In addition to the options already listed, the court suggested that, at least in some cases, a trial court might shift the burden of proof in order to place the burden “on the party who is in the best position to provide relevant proof.” Id. at 1476. In other cases, a trial court might exclude testimony at trial which would waive the privilege previously invoked during discovery in order to prevent abuse of the privilege as a means of “thwarting discovery.” Id. at 1477.

Notably, one approach which generally has been rejected as an effective remedy is the issuance of a civil protective order. See id. at 1474-75; In re Grand Jury, 286 F.3d 153, 162 (3d Cir.2003) (holding that, “[i]n the vast majority of cases, a protective order should yield to a grand jury subpoena”); In re Grand Jury Subpoena Served on Meserve, Mumper & Hughes, 62 F.3d 1222, 1226 (adopting a per se rule that a grand jury subpoena trumps a civil protective order); In re Grand Jury Proceedings (Williams), 995 F.2d 1013, 1015 (11th Cir.1993) (adopting the per se rule that a civil protective order may never “shield a deposition given in a civil suit from a subsequent federal grand jury subpoena”); but see In re Grand Jury, 945 F.2d 1221 (2d Cir.1991) (requiring the government to “show improvidence in the original grant of the protective order or compelling need or extraordinary circumstances that would justify allowing the government access to the depositions” in order for the grand jury subpoena to overcome a civil protective order). A civil protective order has been held inadequate to preserve a party’s Fifth Amendment privilege because “an individual may not totally rely on judicial protection against the use of incriminating information without a grant of immunity.” In re Grand Jury Subpoena, 836 F.2d at 1476-78 (noting that “[the executive department] alone, has the right to determine whether to immunize a witness”). The risks posed by relying on a protective order include the danger that parties will leak the sealed information or materials to law enforcement authorities, the possibility that the order will be modified under Rule 26, and the likelihood that information sealed by the order throughout the discovery process will eventually be disclosed at the public trial. Id. As such, a civil party or witness who relies on a protective order when providing incriminating information has waived his privilege against incrimination without any meaningful guarantee that the information will not be used against him. Given the inadequacy of a civil protective order, then, trial courts must consider some of the other available alternatives to dismissal when engaging in the balancing test set forth today.

Thus, although a trial court retains significant discretion in fashioning the appropriate remedy for a plaintiffs refusal to answer specific questions based- on the privilege against self-incrimination, the court must consider whether effective alternative remedies, less severe than dismissal, are available. See Graystone Nash, 25 F.3d at 194 (“The imposition of an appropriate remedy is within the discretion of the trial court. When significant factors are not weighed in making that determination, however, we must remand so that a proper evaluation may be reached.”) With these principles in mind, we turn to the proceedings below.

B. The Proceedings Below

The trial court dismissed the Petitioner’s case based on its finding that “Plaintiff has willfully refused to comply with the Court’s April 10, 2001 Order [to answer the disputed questions at a second deposition] unless he receives a protective order; the Court’s April 10th Order was neither conditional nor subject to such qualification by Plaintiff.” In discussing its refusal to issue a protective order, the trial court further noted that it had “not been provided with any indication that a criminal prosecution or investigation upon the same facts is underway or even contemplated.... ” Given the Petitioner’s refusal to answer the disputed questions in the absence of a protective order, which the trial court deemed unmerited, the trial court felt compelled to dismiss the Petitioner’s case with prejudice.

In reaching its decision, the trial court failed to engage in any analysis as to the validity of the Petitioner’s Fifth Amendment claims or the availability of any remedy short of dismissal. In fact, to the extent it relied upon the nonexistence of any criminal investigation into the Petitioner’s illegal use or acquisition of narcotics, the trial court misconstrued the scope of the Fifth Amendment privilege. The right not to incriminate oneself is not triggered solely by the existence or even likelihood of a criminal prosecution; rather, “[w]hen a witness can demonstrate any possibility of prosecution which is more than fanciful he has demonstrated a reasonable fear of prosecution sufficient to meet constitutional muster.” In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir.1979); see also Hoffman v. U.S., 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951) (the Fifth Amendment privilege covers even information which would provide “a link in the chain of evidence” needed for criminal prosecution). Thus, the trial court effectively passed over the threshold issue of whether the Petitioner properly invoked his privilege against self-incrimination.

Having failed to recognize the full scope of the constitutional issue before it, the trial court further overlooked the need to engage in any balancing of the Petitioner’s Fifth Amendment rights against Minnesota Life’s right to defend itself. As such, the trial court did not consider any remedies short of dismissal, such as allowing a negative inference to be drawn from the Petitioner’s refusal to answer questions, issuing a stay of discovery until the applicable statute of limitations had run on the Petitioner’s potential criminal activity, or any of the other possibilities discussed above.

III. Conclusion

Because we find that the trial court erred in dismissing the Petitioner’s case without applying the balancing test which has become the modern majority rule, we reverse the court of appeals’ decision insofar as it upholds that dismissal. We therefore remand this case to the court of appeals with instructions to reinstate the Petitioner’s case with the trial court for proceedings consistent with this opinion.

Justice COATS concurs in the judgment only.

Justice COATS,

concurring in the judgment only.

I too would reverse the trial court’s order of dismissal; however, unlike the majority, I do not consider it to be within the discretion of any court to dismiss a person’s lawsuit for refusing to incriminate himself, no matter how significant his testimony may have been to the proceeding. The constitutional privilege against self-incrimination is not a qualified privilege, the exercise of which may be limited or burdened on the basis of its impact on an adverse party. Furthermore, I strongly disagree with the suggestion that a majority of courts considering the matter hold otherwise. The extreme minority of courts approving the dismissal of an invoking party’s claims in order to protect the interests of another have, in my view, simply failed to consider or correctly apply the controlling precedents of the Supreme Court, much like the majority does today.

It is beyond dispute that the privilege against self-incrimination, guaranteed by the Fifth and Fourteenth Amendments, applies to civil as well as criminal proceedings. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924). Unlike the criminal context, in which the defendant’s criminality and a state-imposed sanction are the ultimate matters at issue, however, in the civil context the constitutional privilege does not extend so far as to protect .an invoking party from inferences that may logically be drawn from its exercise. See Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). It has long been recognized that standing silent in certain circumstances, including in the face of an accusation of criminal conduct, may give rise to an inference of guilt. See Id.; S.E.C. v. Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir.1994). In a civil proceeding, such an inference is permissible, where appropriate, not as a sanction or remedy for any unfairness created by exercise of the privilege but simply because it is relevant and outside the scope of the privilege. See Baxter, 425 U.S. 308, 96 S.Ct. 1551.

Exercise of the privilege in the civil context is not without other disadvantages as well. Without giving testimony that effectively waives the privilege, a civil plaintiff may well find himself unable to carry his burden of proof. Because exercise of the privilege against self-incrimination in no way limits the court’s authority (or obligation) to manage the case fairly and efficiently, a number of courts have held that any attempt to waive the privilege, as it becomes advantageous or even necessary to maintain a claim — either at trial or in order to defend against pre-trial motions — must be considered in light of the unfairness created by such a belated waiver. See United States v. 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78 (2d Cir.1995); Graystone Nash Inc., 25 F.3d 187 (3d Cir.1994); F.T.C. v. Kitco of Nevada, Inc., 612 F.Supp. 1282 (D.Minn.1985). Because the privilege is constitutionally based, detriment to the pax-ty asserting it should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side, but a party asserting the privilege has no absolute right to subsequently waive it, and trial courts must carefully balance his interests against an adversary’s entitlement to equitable treatment. See Graystone Nash Inc., 25 F.3d at 192.

Because C.R.C.P 26 does not require disclosure of privileged material, it is at least clear that proper exercise of the privilege against self-incrimination cannot amount to a discovery violation in the first instance and therefore cannot implicate either an order to compel or sanctions permitted by C.R.C.P. 37. Graystone Nash Inc., 25 F.3d at 191; Welding v. Columbia Broadcasting System, 608 F.2d 1084, 1087 (5th Cir.1980); Campbell v. Gerrans, 592 F.2d 1054, 1056 (9th Cir.1979). Whether burdens imposed on the exercise of the pi'ivilege are referred to as “sanctions” or merely as “remedies” to prevent inherent unfairness, the view that having selected the litigation process, a plaintiff may not use the privilege to advance his cause — to use it as a sword rather than a shield — is an “approach ... that has not cai'ried the day.” McMullen v. Bay Ship Mgmt, 335 F.3d 215, 218 (3d Cir.2003).

By my count, the “modern ti'end,” maj. op. at 140, or “more recent approach,” maj. op. at 141, referred to by the majority, consists of only one case from the First Circuit Court of Appeals, see Serafino v. Hasbro, Inc., 82 F.3d 515 (1st Cir.1996), which relies on the now largely discredited approach of the Fifth Circuit, see Wehling, 608 F.2d 1084, and a misi'eading of other modern cases. In contradistinction to this “approach,” it is clear, at least to me, that both the Second and Third Circuit cases relied upon by the majority, see McMullen, 335 F.3d 215; 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78; Graystone Nash Inc., 25 F.3d 187, merely stand for the proposition that a balance is required before a pai'ty may be permitted to change his mind and belatedly waive the pi'ivilege. The Third Circuit in McMullen expressly distinguishes Serafino, which had been relied on by the distinct court being reviewed, and holds that the case is controlled by Gray-stone instead. Similarly, the Ninth Circuit, in Campbell, 592 F.2d 1054, see maj. op. at 141, explains Lyons v. Johnson, 415 F.2d 540 (9th Cir.1969), see maj. op. at 140, as a case in which the privilege was not properly invoked in the first place and therefore refusal to answer was appropriately subject to Rule 37 sanctions, Campbell, 592 F.2d at 1057, and it expressly holds it to be “obvious that dismissal of an action is costly and therefore would not survive the Griffin test,” id. at 1058, prohibiting any penalty for exercising the privilege against self-incrimination.

The privilege against self-incrimination is no more relative to an opponent’s need for the undisclosed information than is any statutorily created privilege, see Clark v. Dist. Ct., Second Judicial Dist., City and County of Denver, 668 P.2d 3, 9 (1983), and courts have no more authority to penalize its exercise than the exercise of any other absolute privilege. Courts must determine whether the privilege against self-incrimination has been properly invoked, whether it has been (or may even permissibly be) waived, and what inferences may logically be drawn from its exercise. While logical inferences arising from the exercise of the privilege are not barred in civil proceedings, and a court must exercise its discretion to insure that an invoking pai'ty may not acquire an unfair advantage by belated waiver, an opposing party has no right to a properly invoking party’s testimony, no matter how advantageous it might be for the defense. The disadvantage to another party resulting from the privilege against self-incrimination is among the inherent costs associated with any such policy choice and is not a matter to be “remedied” by imposing a penalty — like dismissal of a party’s lawsuit — upon exercise of that right.

Because I believe the majority, in much the same way as the First Circuit upon which it relies, fundamentally misperceives the nature of the constitutional privilege against self-incrimination, I do not join its opinion. Because I agree, however, that it correctly reverses the court of appeals opinion upholding the trial court’s dismissal, I concur in the judgment of the court.

      . The two agents were sued based on alleged misrepresentations they made in issuing the insurance policy to the Petitioner. Throughout the proceedings leading to this appeal, the agents essentially joined Minnesota Life on its various motions, without initiating any additional motions. For the purpose of convenience, this opinion will refer to Minnesota Life as the primary defendant in the case below.

      . In particular, the Petitioner had developed an addiction to Sufenta and Percocet, two narcotics frequently dispensed by anesthesiologists in the course of practice.

      . Although it is unclear if the Petitioner offered this information solely for a relevancy determination or specifically for a Fifth Amendment determination, the two issues are sufficiently overlapping that the trial court could have used the information for both purposes.

      . The court of appeals also addressed issues not pertinent here, including its analysis of whether the Petitioner was entitled to a protective order under the dictates of Martinelli v. Dist. Court, 199 Colo. 163, 170, 612 P.2d 1083, 1088 (Colo.1980), and whether the trial court's award of costs to Minnesota Life impermissibly burdened the Petitioner’s exercise of his Fifth Amendment privilege. Steiner v. Minnesota Life Ins. Co., 71 P.3d 1017 (Colo.App.2003).

      . As a threshold matter, a trial court must necessarily determine if the privilege is properly invoked. In other words, the information withheld must be of the sort which could, directly or indirectly, subject the plaintiff to the possibility of prosecution. See, e.g., Kastigar v. U.S., 406 U.S. 441, 445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (noting that the Fifth Amendment "protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used”). As such, a plaintiff must invoke the privilege in response to specific questions, and the trial court must determine whether the privilege has been properly invoked as to each question. Here, the Petitioner properly invoked the privilege as to questions detailing how he obtained the narcotics and whether he used them in a way as to endanger patients, as he had not previously incriminated himself on those issues. However, the Petitioner's invocation of the privilege was improper as to his mere knowledge of whether the use or stealing of narcotics was illegal, as that knowledge alone could not subject the Petitioner to prosecution.

      . Of course, given the inadequacy of protective orders as discussed above, as well as Minnesota Life's suggestion, both in its written briefs and at oral argument, that it would be forced to turn over any incriminating evidence to the authorities, the trial court properly rejected the Petitioner's motion for a protective order.


text:
    John Philip McDONNELL, Jr., Petitioner v. The PEOPLE of the State of Colorado, Respondent.
    No. 03PDJ063.
    Jan. 23, 2004.
    Opinion issued by a Hearing Board consisting of Presiding Officer GAIL C. HARRISS, and BARBARA WEIL LAFF, both members of the bar, and MELINDA M. HARPER, a representative of the public.
   OPINION AND ORDER READMITTING JOHN PHILIP MCDONNELL, JR. TO THE PRACTICE OF LAW

ATTORNEY READMITTED TO THE PRACTICE OF LAW

On December 11, 2003, a readmission hearing was held pursuant to C.R.C.P. 251.29(a) before a Hearing Board consisting of the Presiding Officer Gail C. Harriss, a member of the bar, and two hearing board members, Melinda M. Harper, a representative of the public and Barbara Weil Laff, a member of the bar. Alexander R. Rothrock represented John P. McDonnell, Jr. (“McDonnell”). James S. Sudler, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the “People”). The following witnesses testified on behalf of McDonnell: Sheryl S. Branney, Michael E. Canges, Francine S. Salazar, Laurinda L. McDonnell, Michael H. Gendel, M.D., Mark L. Held, Ph.D., and Andrew F. Czopek, Ph.D. McDonnell also testified on his own behalf. McDonnell’s exhibits 1 through 6 were admitted into evidence.

The Hearing Board considered the testimony and exhibits admitted as well as a Stipulation signed by the parties; addressed the credibility of the witnesses; and made the following findings of fact, which were established by clear and convincing evidence.

I. FINDINGS OF FACT

John Philip McDonnell, Jr. took the oath of admission and was admitted to the bar of the State of Colorado on October 21, 1981. The Supreme Court accepted the parties’ Conditional Admission of Misconduct and disbarred McDonnell from the practice of law in Colorado on June 19, 1995, effective on that date. People v. McDonnell, 897 P.2d 829, 830 (Colo.1995).

After graduating from law school in 1981, McDonnell was employed by a small firm until 1986, when he decided to open his own law practice. His firm enjoyed moderate success and a growing clientele. His wife joined the firm upon her graduation from law school in 1987. McDonnell moved the firm to a larger office and hired staff. A change in policy by one of the firm’s main clients resulted in a sudden decrease in firm revenue.

During this time, McDonnell turned increasingly to alcohol to relieve stress. Then, in August 1990, McDonnell’s father — an important figure in his life — died suddenly. For many months thereafter, McDonnell dealt with his father’s business affairs and tried to run his law practice. He improvidently moved his firm to even larger office space, thereby increasing overhead at a time when firm revenues were on the decline. McDonnell attributes this poor business judgment to muddled thinking following the death of his father, magnified by the effects of alcohol.

In June 1992, McDonnell’s wife was expecting their third child and ceased working at the firm to be at home with the children. This caused added financial stress to McDonnell. Due to the increased need for a predictable income, in August 1993, McDonnell accepted a position as an associate attorney with an insurance defense firm. He closed his firm, but remained obligated for the firm’s debts. During this time frame, McDonnell did not speak openly to the firm, to friends, or to his wife about his financial difficulties. Instead, he turned to alcohol. He believed at the time that he could quit drinking at any time. He frequently began drinking early in the afternoon, and was consequently not present in his firm office during the afternoon hours. He failed to accomplish necessary tasks on his cases.

In one of the cases he handled during this period, McDonnell represented an insurance company in a subrogation case. He received a settlement check made payable to both the insurance company and himself. The firm’s bookkeeper deposited the check in the firm’s trust account and issued a check to the insurance company in the amount of $8,850.35. McDonnell obtained this check in order to deliver it to the insurance company. Instead of doing so, he forged the name of a representative of the insurance company and deposited the check into his own account. McDonnell took the funds to pay his debts, believing that he could repay them when the firm paid him an expected bonus. McDonnell also converted “small” amounts of funds belonging to two former insurance company clients. He concealed his use of the funds from the firm and from the client, assuring the client that the funds were forthcoming. Shortly thereafter, the firm suspended McDonnell’s employment with the firm, began auditing his files, and discovered that McDonnell had utilized the funds belonging to the insurance company. The firm subsequently terminated McDonnell’s employment. McDonnell was immediately suspended from the practice of law by Order of the Supreme Court on April 28, 1994, pending resolution of the disciplinary action against him.

As a result of the conversion of client funds, criminal charges were filed against McDonnell in the District Court for Arapahoe County. McDonnell pled guilty to felony theft and misdemeanor theft and received a deferred judgment on a plea to fourth degree felony theft. McDonnell complied with all terms of his probation and deferred judgment.

McDonnell “hit bottom” during the period of January to March 1994. He had lost his employment, was suspended from the practice of law, had incurred substantial debt, and had lost the trust of his wife. Beginning in March 1994, McDonnell set out to rebuild his personal and professional life. He dates his sobriety from March 11,1994. He participated in an outpatient alcohol rehabilitation program for the remainder of 1994 and most of 1995. Over the past nine years, McDonnell has undergone individual and marital counseling. He and his wife worked together to rebuild trust and remain together as a family. He is now open and honest in his communications with his wife and others. He has developed a strong support system extending beyond his family. He regularly attends Colorado Lawyers Health Program (“CLHP”) meetings and continues in individual therapy.

McDonnell returned to work in June 1994 as an attorney’s legal assistant. After two years in this position, McDonnell accepted employment as a personal assistant to the late Joseph J. Branney. McDonnell provided paralegal assistance to Mr. Branney in his law practice. He also came to earn the trust of Mrs. Branney, and he acted as a business and financial assistant to Mr. and Mrs. Bran-ney. McDonnell paid the Branneys’ personal bills, oversaw their investments, interacted with Mr. Branney’s business partners, and routinely transferred funds between various bank accounts. In this role, McDonnell demonstrated honesty and trustworthiness.

In addition to responsibly handling funds belonging to the Branneys, McDonnell has handled funds for neighborhood organizations and in his volunteer work with his church. He acted as co-treasurer for the charity auctions for two consecutive years. He currently acts as a bookkeeper and makes all the deposits for his wife’s law firm.

In September 2000, McDonnell obtained paralegal employment with a law firm in Denver. He was considered organized, punctual, detail-oriented, and reliable. As a paralegal, McDonnell demonstrated competence in handling multiple responsibilities under demanding conditions. McDonnell will be offered a position with the firm in the event of his readmission, if the firm is able to do so.

McDonnell sat for and passed the February 2003 Bar Examination and the March 2003 Multistate Professional Responsibility Examination. He has earned sixty-one credits for Continuing Legal Education seminars that he attended in the past three years, and has read several legal publications on a monthly basis including The Colorado Lawyer.

Since his disbarment, McDonnell has been involved in several charitable and community service activities. He has served as the president of his neighborhood homeowners’ association and the president of a metropolitan district. He has been actively involved with his three children’s academic and sports activities as a soccer and baseball coach, academic tutor, Boy Scout den leader, discussion leader in a great books program, and volunteer at his children’s schools. He and his family volunteer at two shelters for the homeless and are involved in charitable activities through their church.

McDonnell was candid and open in discussing the character flaws that led to his conversion of client funds. He demonstrated an appreciation for the wrongfulness of his conduct. He expressed remorse for the harm he caused his client, the firm for which he was employed, his wife and family, and the legal profession. He accepted full responsibility for his actions.

McDonnell has maintained his sobriety since March 11,1994, and has received treatment to remain sober. Given the stability of McDonnell’s recovery, he is very likely to maintain his sobriety. The Hearing Board finds it is extremely unlikely that McDonnell would engage in the conduct that led to his disbarment, if he maintains his sobriety.

II. CONCLUSIONS OF LAW

John P. McDonnell, Jr., is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

C.R.C.P. 251.29(a) provides:

Readmission After Disbarment. A disbarred attorney may not apply for readmission until at least eight years after the effective date of the order of disbarment. To be eligible for readmission the attorney must demonstrate the attorney’s fitness to practice law and professional competence, and must successfully complete the written examination for admission to the Bar. The attorney must file a petition for readmission, properly verified, with the Presiding Disciplinary Judge, and furnish a copy to the Regulation Counsel. Thereafter, the petition shall be heard in procedures identical to those outlined by these rules governing hearings of complaints, except it is the attorney who must demonstrate by clear and convincing evidence the attorney’s rehabilitation and full compliance with all applicable disciplinary orders and with all provisions of this Chapter. A Healing Board shall consider every petition for readmission and shall enter an order granting or denying readmission.

People v. Klein, 756 P.2d 1013, 1016 (Colo.1988), interprets the language of the prior rule governing readmission to the bar, C.R.C.P. 241.22, and sets forth criteria which must be considered in reinstatement proceedings in order to evaluate an attorneys rehabilitation. Klein requires:

[ A]ny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the respondents state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the respondent, the personal and community service aspects of the respondents life, and the respondents recognition of the seriousness of his previous misconduct.

An attorney seeking readmission following-disbarment must establish compliance with the provisions of C.R.C.P. 251.29(c). Those provisions are as follows:

The facts other than the passage of time and the absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;
Evidence of compliance with all applicable disciplinary orders and with all provisions of this chapter regarding actions required of suspended attorneys;
Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

On September 6, 2003 McDonnell filed a Verified Petition for Readmission. The parties stipulated that McDonnell complied with all applicable orders and all provisions of C.R.C.P. 251.29(a) in both the criminal and disciplinary proceedings. The parties further stipulated that McDonnell is fit to practice law and professionally competent to do so. McDonnell established his efforts to maintain professional competence by passing the Colorado Bar Examination and the Multistate Professional Responsibility Exam. He has also established proficiency in the law while working as a paralegal for the last nine and one-half years. He has remained current in the law by attending Continuing Legal Education seminars and reading legal journals.

Imposition of discipline against an attorney includes a determination that some professional or personal shortcoming existed upon which the discipline is premised. The shortcomings may have resulted either from personal deficits or from a combination of personal deficits and professional and/or environmental inadequacies. It necessarily follows that an analysis of rehabilitation should be directed at the professional or moral shortcomings which resulted in the discipline imposed. See C.R.C.P. 251.29(c)(5); Tardiff v. State Bar, 27 Cal.3d 395, 165 Cal.Rptr. 829, 612 P.2d 919, 923(1980) (citing Roth v. State Bar, 40 Cal.2d 307, 253 P.2d 969, 972 (1953) (holding that in an application for reinstatement ... the proof presented must be sufficient to overcome the courts former adverse judgment of [the] applicants character)). In order to be readmitted to the practice of law, a lawyer must establish that the character deficits present at the time of the misconduct have since been eliminated, so as to insure that similar misconduct does not occur in the future.

McDonnell’s knowing conversion of client funds in September 1993 reveals character deficits present at the time the conversion occurred. The primary character deficit resulted from McDonnell’s alcohol abuse. Additional character deficits included McDonnell’s inability to communicate honestly and openly with his family regarding his difficulties and his failure to have a support system with whom he could discuss his difficulties and seek assistance. McDonnell established that he has remained sober since March 1994, and continues to be committed to sobriety. In 1994, he entered an outpatient alcohol rehabilitation program. Over the last nine years and with a great deal of dedication, he and his family reestablished a relationship built on trust. He remains committed to his family and he is particularly determined to becoming a role model for his children. He has worked hard on his abilities to communicate with his family and friends and be truthful with them. He established a support system to assist him should he ever face desperate circumstances again. McDonnell has acquired the tools to live a sober and productive life.

The character deficit evident at the time of McDonnell’s conversion involved lack of honesty and good judgment handling client funds. McDonnell has demonstrated his trustworthiness as an employee and civic volunteer over an extended period of time by accepting and successfully completing work assignments, and has demonstrated honesty and integrity in handling both personal, professional and charitable monetary accounts.

McDonnell demonstrated by clear and convincing evidence that he has undergone a fundamental character change. He unequivocally acknowledges the wrongfulness of his conduct and demonstrates remorse for his misconduct. He accepts responsibility for his actions and does not blame others for his conduct or the consequences stemming from that conduct.

The Hearing Board orders that McDonnell shall be readmitted to the practice of law, McDonnell having established by a clear and convincing standard his compliance with all past orders of court, his fitness to practice law, and his rehabilitation. However, the Hearing Board is charged with the serious role of protecting the public. Although the evidence established McDonnell’s nine year record of sobriety, there is always a possibility of relapse, despite the best record of sobriety. In order to ensure the publics safety over the first period of McDonnell’s return to the practice of law, the Hearing Board imposes the condition of random urinalysis testing once a month for a period of twelve months through a facility convenient to McDonnell.

III. ORDER

It is therefore ORDERED:

McDonnell’s Petition for Readmission is GRANTED effective upon McDonnell’s completion of the conditions in paragraph 3 below. McDonnell shall immediately notify the Office of the Presiding Disciplinary Judge of his compliance so that notification can be sent out of McDonnell’s readmission.
2.McDonnell shall be subject to a monthly random urinalysis test during a period of twelve months commencing one month from the date of this Order. The Office of Attorney Regulation Counsel shall receive a monthly report of the random testing from the facility chosen by McDonnell. McDonnell shall pay for the costs of the testing.
3.McDonnell shall appear before the Office of Attorney Registration, pay the registration fees and complete the necessary paperwork and thereafter take the oath of admission from that office;
4.McDonnell shall pay the costs of these proceedings. Respondent shall file a Statement of Costs within fifteen days (15) of the date of this Order; McDonnell shall file a Response thereto within ten (10) days of receipt of the Statement of Costs.

      . Complete restitution was paid to the client pri- or to the immediate suspension.


author: JOHNSON, Presiding Judge. LUMPKIN, Judge: LILE, Vice Presiding Judge:

text:
    2004 OK CR 7
    Shannon Tremale BIRDINE, Appellant v. STATE of Oklahoma, Appellee.
    No. F-2002-1226.
    Court of Criminal Appeals of Oklahoma.
    Feb. 11, 2004.
    As Corrected Feb. 24, 2004.
    David Autry, Jason Spanich, Matthew Haire, Norman, OK, for defendant at trial.
    Mark Hoover, Appellate Defense Counsel, Norman, OK, for appellant on appeal.
    Dan Deaver, Rebecca Beason, Michael Beason, Asst. District Attorneys, Altus, for the state at trial.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer Dickson, Assistant Attorney General, Oklahoma City, for state on appeal.
   SUMMARY OPINION

JOHNSON, Presiding Judge.

¶ 1 Appellant, Shannon Tremale Birdine, was charged in Jackson County District Court, Case No. CF 2001-17, with two counts of First Degree Murder, in violation of 21 O.S.Supp.2000, § 701.7, after former conviction of two or more felonies. Jury trial was held before the Honorable Richard Darby, District Judge, on August 20-28, 2002. The jury found Appellant guilty of two counts of Second Degree Murder. The jury set punishment at life imprisonment on each count. Judgment and Sentence was imposed on October 1, 2002, and Judge Darby ordered the sentences to be served consecutively. Thereafter, Appellant filed this appeal.

¶ 2 Appellant raises three (3) propositions of error:

1. Because the instruction which informed the jurors that they could presume viability of a fetus at twenty-four weeks of gestation was confusing and improperly shifted the burden of proof onto Appellant, this Court should remand the matter for a new trial on Count II, or in the alternative, modify the Judgment and Sentence;
2. Because the State failed to introduce sufficient evidence to prove viability of the fetus, this Court should reverse Appellant’s conviction on Count II and modify the Judgment and Sentence to second degree Manslaughter to reflect death of a quick child; and,
3. Under the facts and circumstances of this case, two consecutive life sentences are such excessive punishment that the conscience of this Court should be shocked.

After thorough consideration of the propositions raised, the Original Record, transcripts, and briefs of the parties, we find Appellant’s conviction on Count I should be affirmed, but the Judgment and Sentence in- Count II should be modified for the reasons set forth below.

¶ 3 “The Due Process Clause of the Fourteenth Amendment ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985), citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). This constitutional principle “prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” Francis, id.; Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

¶ 4 In this case, the trial court, over objection of both the State and Appellant, gave a jury instruction on the definition of viability which created a mandatory rebuttable presumption and effectively shifted the burden of persuasion to Appellant on an essential element of the crime. Even if only one juror’s interpretation of this instruction gave it conclusive or a burden-shifting effect, the instruction was not constitutional and deprived Appellant of his due process rights under the Fourteenth Amendment- to the United States Constitution. See Hunter v. State, 1987 OK CR 165, ¶ 5, 740 P.2d 1206, 1208; Francis, 471 U.S. at 315-318, 105 S.Ct. at 1972-1973; Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459.

¶ 5 The general instructions on the State’s burden of proof and Appellant’s presumption of innocence are insufficient to dissipate the error in the jury instruction challenged here. Hunter, 1987 OK CR 165, ¶ 6, 740 P.2d at 1208. The absence of an explanatory or qualifying instruction informing the jury that it could ignore the presumption supports the conclusion that the instruction could have been interpreted in an unconstitutional manner. Hunter, id.; 12 O.S.Supp.2002, § 2304(C), (the judge shall inform the jury it “may regard the basic facts as sufficient evidence of the presumed fact but is not required to do so.”)

¶ 6 We cannot find this error harmless beyond a reasonable doubt, particularly in light of the evidence presented and the uncertainty this Court has of this instruction’s effect on the determination of the sufficiency of the evidence presented. Accordingly, and in consideration of the claim raised in Proposition Two, we hold Appellant’s conviction for Second Degree Murder in Count II should be modified to First Degree Manslaughter, for the killing of an unborn quick child. 21 O.S.2001, § 713. Viability is not an issue which must be decided for a conviction under Section 713. See e.g. McCarty v. State, 2002 OK CR 4, ¶ 8, 41 P.3d 981, 984. Here, the evidence showed, beyond a reasonable doubt, the unborn child was quick within its mother’s womb.

¶ 7 The statutory range of punishment for Manslaughter in the First Degree is imprisonment in the penitentiary for not less than four (4) years. 21 O.S.2001, § 715. The life sentence imposed by the jury falls within that range and we decline to modify the term of sentence imposed. We recognize the decision to run sentences concurrently or consecutively is within the discretion of the trial court. Sherrick v. State, 1986 OK CR 142, ¶ 16, 725 P.2d 1278, 1284. However, under the facts of this case, we believe modification of the sentences to run concurrently is appropriate and direct modification of the Judgment and Sentences to so reflect.

¶ 8 to aid trial courts in future eases, we hereby promulgate the following instruction:

No person may be convicted of Murder in the First Degree of an unborn child unless the State has proved beyond a reasonable doubt that the unborn child was viable at the time of death.
An unborn child is viable when the unborn child has the capability to live outside the mother’s womb even with artificial aid. Because the point of viability may différ with each pregnancy, due to the health of the mother, support locally available or other risks, no single factor such as weight or gestational age should be the deciding-factor in determining viability. Viability must be determined considering all of he evidence presented relating to the pregnancy with reasonable medical certainty.

This instruction shall be used in all future cases where the defendant is charged with either first or second degree Murder of an unborn child and is effective from the date this Opinion is published.

DECISION

The Judgment and Sentence imposed in Jackson County District Court, Case No. CF 2001-17, Count I, is hereby AFFIRMED but the sentence is modified to run concurrently with the conviction in Count II; the Judgment and Sentence imposed in Count II of Case No. CF 2001-17 is MODIFIED to Manslaughter in the First Degree and the sentence imposed is MODIFIED to run concurrently with Count I.

LILE, V.P.J. and LUMPKIN, J. concur in part/dissent in part.

CHAPEL and STRUBHAR, JJ. concur.

LUMPKIN, Judge:

concur in part/dissent in part.

¶ 1 I concur in the Court’s decision to affirm the judgment and sentence in Count I. I also concur in the Court’s decision to modify the conviction in Count II to Manslaughter in the First Degree, with the sentence of life imprisonment. However, I would not modify the sentences to run concurrently.

¶2 In addition, I appreciate the Court’s recognition the infant victim is a child. As I stated in McCarty v. State, 2002 OK CR 4, 41 P.3d 981, the correct terminology should be either “unborn viable child” or “unborn quick child”. Absent acknowledgment that the unborn child is a “human being” and a “person” protected by the statutory language, liability cannot attach to a person charged with the crime. The language of the instruction is now clear the unborn child is a person so protected.

LILE, Vice Presiding Judge:

concurs in part/dissents in part.

¶ 1 I would not modify the sentences to run concurrently.

      . The State charged Appellant with alternative theories of malice aforethought and felony/murder with rape as the underlying felony.

      . The State filed a Bill of Particulars alleging continuing threat, great risk of death to more than one person, and that the murder was heinous, atrocious and cruel.

      .The trial court granted Appellant's motion for directed verdict on the two counts of felony murder, finding there was not sufficient evidence of a rape or attempted rape to allow that issue to go to the jury.