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.

“This is case in which the court’s opinions about the defendant’s conduct drove its decisions. And at every turn, that opinion infected the court’s decisions with error,” attorney Kendra N. Beckwith told the appellate panel during oral arguments in November.

She added that expert evidence suggested the modern understanding about Jones’ unprofessional conduct did not exist in the ’70s and ’80s, meaning it was not a matter of “common sense” that Jones was liable to his patients.

“These plaintiffs didn’t consent to be artificially inseminated by Dr. Jones’ sperm. It was a completely different procedure he performed,” responded their attorney, Scott Ray.

“Physically, it’s the same procedure, though, right?” asked Judge Matthew D. Grove.

“Yes, but if you consent to a boxing match, you put on boxing gloves and you get in a boxing ring, and somebody starts kicking you,” Ray explained, “that’s a different fight altogether, isn’t it?”

Ultimately, the panel concluded Barrett was wrong to decide prior to trial that Jones definitively violated his professional duty at the time of the inseminations.

“Jones produced sufficient evidence – if just barely – to create a triable issue of fact as to breach,” wrote Lum, noting there was evidence showing the concept of informed consent “was not developed until after the relevant time period.”

She added it was “perhaps not a strong argument” that Jones was within his rights to inseminate patients with his own sperm, but the issue was one for the jury. The panel also determined Barrett was wrong to rely on his own perception of “common sense” when ruling prior to trial.

Finally, the Court of Appeals concluded Barrett improperly allowed the plaintiffs to request additional damages mid-trial. It ordered a new trial for all claims.

The case is Emmons et al v. Jones et al.