Mesa County judge's errors prompt new trialfor fertility doctor who used own sperm on patients
The Court of Appeals disagreed that the trial judge could rely on his 'common sense' to conclude a Grand Junction doctor acted unprofessionally
Michael Karlik michael.karlik@coloradopolitics.com Jan 26, 2024 Updated Feb 3, 2024
Colorado's second-highest court on Thursday overturned a multimillion-dollar jury award to a pair of patients whose doctor artificially inseminated them with his own sperm, concluding a Mesa County judge's cascading set of errors warranted a new trial.
A three-judge panel for the Court of Appeals conceded Paul B. Jones, a retired obstetrician-gynecologist from Grand Junction, did not have a particularly strong defense to the claims he acted improperly by using his own sperm without his patients' knowledge. But the panel determined the decisions in the trial court tilted the playing field against Jones.
"We do not reach this outcome lightly, and we are aware that a retrial may well have adverse effects on the patients and their families, who will again be required to describe the emotional impact that Jones’s actions have had on their lives," wrote Judge Katharine E. Lum in the Jan. 25 opinion. "Nevertheless, we must base our decisions on the law, unaffected by our personal feelings."
Lawyers for Jones and the plaintiffs did not immediately respond to a request for comment. The panel's opinion contained numerous redactions, which the Court of Appeals' clerk said was "very uncommon," but a product of the trial court's decision to seal certain material.
The initial revelations about Jones' conduct prompted the General Assembly to enact a law in 2020 providing for civil and criminal liability against fertility doctors who use donated sperm on a patient without their consent.
Case: Emmons v. Jones
Decided: January 25, 2024
Jurisdiction: Mesa County
Ruling: 3-0
Judges: Katharine E. Lum (author)
Anthony J. Navarro
Matthew D. Grove
Background: Fertility Doctor Who Used His Own Sperm Prompts $8.75 Million Award
Beginning in 2018, some children of Jones' clients happened to submit their DNA to genealogy websites. They learned their births were the product of artificial insemination in the 1970s and 1980s, and subsequent testing established Jones was the sperm donor.
Multiple families filed suit, noting Jones had represented to them the sperm would come from an anonymous law or medical student. In doing so, Jones allegedly breached the "standard of care" expected of doctors. A 10-day trial in 2022 resulted in jurors awarding nearly $9 million to three women, which was later reduced according to the caps in state law.
Jones pursued an appeal of the judgment for two of the plaintiffs, Cheryl Emmons and Marsha Davis-Wilmeth. He argued District Court Judge Matthew D. Barrett made critical mistakes, beginning with his ruling before trial that Jones breached the standard of care he owed to his patients.
Barrett believed Jones had "admitted" the use of his own sperm was contrary to professional standards, based on something Jones read during his deposition. During the trial, when Jones re-raised the issue, Barrett suddenly acknowledged the evidence "paints a different picture" and was not admissible. However, he declined to reconsider his prior ruling against Jones, even though it referenced the now-barred evidence.
Barrett's pretrial ruling alternatively found it was "common sense that it would be against the applicable standard of care for a doctor to inseminate his patients with his own sperm." During trial, he reiterated that "no doctor has come in here" to say otherwise.
Consequently, Barrett instructed jurors he "already found as a matter of law" that Jones' actions ran contrary to the care he owed to a patient.
Jones appealed Barrett's pretrial order and the decisions that flowed from it, and also challenged Barrett's decision — days into the trial and after several witnesses had testified — to let the plaintiffs add a request for money damages on the grounds that Jones acted purposefully to harm them.