Chance Gresser, individually and as parent, natural guardian, next of friendand on behalf of his daughter, C.G., and Erin Gresser, individually and asparent, natural guardian, next of friend and on behalf of her daughter, C.G. v. Banner Health, d/b/a North Colorado Medical Center

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 16, 2023

2023COA108

No. 22CA1502, Gresser v. Banner Health — Health and Welfare
— Health Care Availability Act — Limitation of Liability —
Award in Excess of Limitation

A division of the court of appeals considers the scope of a trial

court’s discretion to award past and future economic damages once

the court decides to lift the $1 million statutory cap in a case

governed by the Health Care Availability Act. As a matter of first

impression, the division holds that, after making the necessary

findings to exceed the cap pursuant to section 13-64-302(1)(b),

C.R.S. 2023, a trial court retains its authority to reduce by

remittitur the jury’s award of past and future economic damages in

excess of the cap if the court determines that such award is grossly

and manifestly excessive in light of the evidence before the jury.
The division concludes that the trial court applied the correct

standard by first conducting a “good cause” and “unfairness”

analysis to lift the cap, and then by awarding damages for past and

future economic damages in the amount the jury found because the

record amply supported that amount and it was not grossly and

manifestly excessive. In light of this determination, and because

the division disagrees with the other contentions of error, the

division affirms the judgment entered in favor of the plaintiffs.
COLORADO COURT OF APPEALS 2023COA108

Court of Appeals No. 22CA1502
Weld County District Court No. 19CV30976
Honorable Todd Taylor, Judge

Chance Gresser, individually and as parent, natural guardian, next of friend
and on behalf of his daughter, C.G., and Erin Gresser, individually and as
parent, natural guardian, next of friend and on behalf of her daughter, C.G.,

Plaintiffs-Appellees,

v.

Banner Health, d/b/a North Colorado Medical Center,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE LIPINSKY
Welling and Gomez, JJ., concur

Announced November 16, 2023

Bachus & Schanker, LLC, Darin L. Schanker, J. Howard Thigpen, Melanie
Sulkin, Denver, Colorado; Barrios Kingsdorf & Casteix, LLP, Zachary Wool,
New Orleans, Louisiana; Pendley, Baudin & Coffin, LLP, Jessica Perez,
Plaquemine, Louisiana, for Plaintiffs-Appellees

Hall Booth Smith, P.C., Elizabeth Moran, Greenwood Village, Colorado; Mauro
Lilling Naparty LLP, Richard J. Montes, Woodbury, New York, for Defendant-
Appellant
¶1 The Colorado General Assembly enacted the Health Care

Availability Act (HCAA) four decades ago to “contain[] the

significantly increasing costs of malpractice insurance for medical

care institutions and licensed medical care professionals” and “in

recognition of the exodus of professionals from health-care practice

or from certain portions or specialties thereof.” § 13-64-102(1),

C.R.S. 2023. Among other provisions, the HCAA caps at $1 million

the tort damages awardable against all defendants for a course of

care provided to a patient by a health care professional or a health

care institution. § 13-64-302(1)(b), C.R.S. 2023. The HCAA

provides limited circumstances in which a trial court may lift the

cap to award “the present value of additional past and future

economic damages only.” Id.

¶2 However, once a court makes the appropriate findings and lifts

the cap, the HCAA does not specify how the court must determine

the amount of such excess damages. No prior Colorado case has

addressed this issue. The General Assembly’s silence could mean

that, upon lifting the cap, the court possesses the discretion to

reject the jury’s award and independently determine the amount of

such additional damages. Alternatively, it could mean that, if the

1
court decides to exceed the cap, it must enter a judgment for

economic damages in the same amount as the jury’s calculation of

such damages.

¶3 In this case, defendant, Banner Health, d/b/a North Colorado

Medical Center, appeals the judgment entered in favor of plaintiffs,

Chance and Erin Gresser, following a jury trial. The Gressers,

individually and on behalf of their minor daughter, C.G., asserted a

medical negligence claim against Banner Health premised on the

alleged failure of its nursing staff to timely recognize and report to

C.G.’s treating physicians that C.G. was exhibiting signs of sepsis.

The jury found in favor of the Gressers, and the court entered

judgment in their favor in the amount of $39,845,196.83.

¶4 After the jury rendered its verdict, the trial court determined it

was appropriate to lift the cap. The trial court concluded that its

application of the cap was “binary”: it was required either to impose

the $1 million cap or enter a judgment in the amount that the jury

had calculated for past and future economic damages. It chose the

latter option and entered the full amount the jury had awarded.

¶5 We disagree with the court’s reading of the HCAA. We hold

that, after making the necessary findings to exceed the statutory

2
cap, a trial court may, but is not required to, award additional

damages in the amount that the jury determined.

¶6 But the court’s discretion is not limitless. To determine the

scope of that discretion, we look to the case law governing judicial

review of jury damages awards. Under that case law, a court

possesses the authority to set aside a jury’s award of damages if the

award was “grossly and manifestly excessive.” Bohlender v. Oster,

165 Colo. 164, 168, 439 P.2d 999, 1001 (1968). Although the trial

court erred by characterizing its available options as “binary,” it

undertook the correct analysis before adopting the jury’s calculation

of additional past and future economic damages. Because we also

reject Banner Health’s other claims of error, we affirm.

I. Background

¶7 C.G. was born at Banner Health. Late on the second day of

her life, C.G. was transferred to the neonatal intensive care unit

(NICU), where she received antibiotics to treat a possible infection.

The following morning, lab results confirmed that C.G. had an E.

coli infection. By that time, C.G. had developed sepsis. As a result

of the sepsis, she suffered irreversible neurological injuries,

including cerebral palsy and cognitive and developmental delays.

3
¶8 The Gressers alleged that nurses employed by Banner Health

breached their duty of care by failing to timely notify C.G.’s

physicians that C.G. was exhibiting signs of sepsis, and that such

failure resulted in delayed treatment and caused C.G.’s injuries.

¶9 The jury found that Banner Health was negligent and that its

negligence was the proximate cause of C.G.’s injuries. The jury

awarded the Gressers damages totaling $27,647,274.23, which

included past and future medical and other health care expenses to

2075, as well as lost future wages from 2038 to 2070. The court

entered a total judgment of $39,845,196.83, consisting of the jury’s

award and pre- and post-filing interest.

II. Analysis

¶ 10 Banner Health contends that the court erred by

(1) misinterpreting and misapplying the HCAA’s statutory cap for

past and future economic damages; (2) allowing an expert witness

to testify outside the scope of his qualifications to establish

causation; (3) precluding Banner Health’s economist from providing

opinion testimony regarding the present value of C.G.’s future life

care plan assuming a life expectancy of fifty-eight; and

(4) permitting the Gressers’ counsel to insinuate that Banner

4
Health’s attorneys had colluded with Banner Health’s witnesses to

fabricate testimony. We agree, in part, with Banner Health’s first

argument but hold that the court did not err by awarding the

Gressers past and future economic damages in the amount the jury

found. We disagree with Banner Health’s second, third, and fourth

arguments.

A. The Damages Cap in the HCAA

¶ 11 The HCAA places an additional burden on plaintiffs seeking to

recover more than $1 million from all defendants in any civil action

for damages in tort brought against a health care professional or a

health care institution. Even if such plaintiffs prove their damages

to a jury, section 13-64-302(1)(b) provides that they also must prove

to the court good cause for an award of past and future economic

damages in excess of the $1 million cap. The court cannot award

damages that surpass the cap unless, “upon good cause shown,”

the court “determines that the present value of past and future

economic damages would exceed such limitation and that the

application of such limitation would be unfair.” § 13-64-302(1)(b).

¶ 12 The plaintiff bears the burden of establishing both good cause,

which means a “legally sufficient reason,” and unfairness, meaning

5
“marked by injustice, partiality, or deception.” Wallbank v.

Rothenberg, 140 P.3d 177, 180 (Colo. App. 2006) (first quoting

Black’s Law Dictionary 235 (8th ed. 2004); and then quoting

Webster’s Third New International Dictionary 2494 (1986)).

¶ 13 Banner Health contends that the court misinterpreted section

13-64-302(1)(b) to permit only a binary choice between enforcing

the statutory cap or awarding the full amount that the jury

determined. Because the court “felt constrained by a binary

choice,” Banner Health argues, the court did not properly consider

the totality of the circumstances in its good cause and unfairness

analysis. We conclude that the court properly applied the good

cause and unfairness analysis when deciding to lift the cap and

that, although we disagree with its characterization of the scope of

its discretion to determine the amount of additional past and future

economic damages, it made the necessary findings before entering

the jury’s award.

1. The Court Did Not Abuse Its Discretion
in Deciding to Lift the Cap

¶ 14 Banner Health alleges five errors in the court’s application of

the good cause and unfairness standard in section 13-64-302(1)(b).

6
“In making findings as to ‘good cause’ and ‘unfairness,’” trial courts

must consider the “totality of circumstances.” Vitetta v. Corrigan,

240 P.3d 322, 329 (Colo. App. 2009). We review the court’s

determination for an abuse of discretion. Wallbank, 140 P.3d at

179.

¶ 15 First, we disagree with Banner Health’s contention that the

court “failed to consider and balance any relevant factors in

determining good cause and unfairness.” Banner Health

erroneously asserts that the court only considered the sufficiency of

the evidence to support the jury’s verdict. Rather, as the Gressers

explain, the court also weighed the type and permanency of C.G.’s

injuries, her continuous need for intensive and expensive therapies,

her life expectancy, and that her future medical expenses would

exceed $1 million even if she were fully covered by Medicaid.

¶ 16 Specifically, in determining that the Gressers had established

good cause for exceeding the cap, and that enforcing the cap would

be unfair, the court pointed to the evidence establishing that C.G.

“suffered severe, permanent neurological injuries, a number of

which she will never be able to overcome, and those injuries that

she can learn to overcome will require [her] to be engaged in

7
intensive, and expensive, therapies for much, if not all, of her life.”

Further, the court noted that “$1 million would not even

compensate the Gressers for C.G.’s past medical expenses.”

¶ 17 The court also found that the Gressers presented “substantial,

and largely unchallenged, evidence” of the cost of the future care

C.G. would require to “improve her quality of life” and to “avoid the

risks and complications that her neurological deficits will continue

to present over her lifetime.” The court said it would be unfair to

deprive C.G. of such care and opportunities for improvement.

¶ 18 The court determined that it would also be unfair not to

compensate C.G.’s mother, who would continue to care for C.G. as

an around-the-clock nurse’s aide and thus be unable to work

outside the home. Finally, the court found that “there is no doubt

that [C.G.] will never earn wages,” that the jury’s award of future

lost wages was within the range to which Banner Health’s expert

had testified, and that such award did not duplicate the jury’s

award for future medical expenses.

¶ 19 Although Banner Health takes issue with the lack of

countervailing factors in the court’s analysis, “a court may exercise

its discretion to consider factors it deems relevant,” id. at 180-81

8
(emphasis added); it is not bound to consider all of the factors the

parties deem relevant.

¶ 20 Second, we reject Banner Health’s contention that the

Gressers did not meet their burden of proving that C.G.’s past

medical expenses were $2.5 million. Banner Health does not assert

that the Gressers provided no evidence to support this figure.

Rather, although the parties stipulated to the authenticity of the

bills for C.G.’s medical expenses, Banner Health argues that “the

$2.5 million awarded reflects a fictitious charged amount as

opposed to the amount [the Gressers] actually paid.” Specifically, it

asserts that the Gressers “failed to disclose the amount of any liens

and what portion of the judgment would be for third-party

subrogation claims,” and that they were required to do so under the

statute governing collateral source evidence in medical malpractice

actions. See § 13-64-402, C.R.S. 2023.

¶ 21 This argument fails. Although that statute requires courts to

determine “the amount, if any, due the third party payer or provider

and enter its judgment in accordance with such finding,”

§ 13-64-402(3), the provisions do not apply when the third party

payer or provider is Medicaid. See § 13-64-402(4). Banner Health

9
does not allege that any third party payer or provider other than

Medicaid furnished medical assistance to or on behalf of C.G. And

it cites no authority indicating that plaintiffs must submit evidence

of liens or subrogation claims from Medicaid to satisfy their burden

of proof on damages.

¶ 22 Importantly, the court found that the jury’s award of more

than $2.5 million for C.G.’s past medical expenses was “amply

supported by the evidence admitted at trial.” To support its

argument that the $2.5 million “reflected only the fictitious charged

amount,” Banner Health points to a single document from

Children’s Hospital, which states, “This is not a bill. This is an

itemization of hospital services.” In our view, this is insufficient to

overturn, on sufficiency of the evidence grounds, the court’s finding.

See Northstar Project Mgmt., Inc. v. DLR Grp., Inc., 2013 CO 12, ¶ 14,

295 P.3d 956, 959 (explaining that appellants bear the burden of

“designating ‘all evidence relevant’ to the finding or conclusion

challenged on sufficiency of the evidence grounds” (quoting C.A.R.

10(b)). Banner Health does not allege that the Gressers never

received those services. And even if Medicaid initially covered the

cost of those services, the Colorado Department of Health Care

10
Policy and Financing (the state department) has an automatic lien

by virtue of section 25.5-4-301(5)(a), C.R.S. 2023, for the amount of

the medical assistance it furnished to or on behalf of C.G. See

§ 25.5-4-301(5)(a) (“When the state department has furnished

medical assistance to or on behalf of a recipient pursuant to the

provisions of this article, and articles 5 and 6 of this title, for which

a third party is liable, the state department shall have an automatic

statutory lien for all such medical assistance.”).

¶ 23 Without further explanation or cites to the record indicating

otherwise, we presume the court properly found that the $2.5

million damages award was supported by the evidence. See C.A.R.

28(a)(7)(B) (requiring an appellant’s arguments to contain “citations

to the . . . parts of the record on which the appellant relies”); Love v.

Klosky, 2016 COA 131, ¶ 18, 417 P.3d 862, 864 (“We presume that

the trial court’s findings and conclusions are supported by the

evidence when the appellant has failed to provide a complete record

on appeal.”), aff’d on other grounds, 2018 CO 20, 413 P.3d 1267;

Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d

328, 335 (Colo. App. 1996) (“[I]t is not the duty of the reviewing

court to search the record for evidence to support bald assertions.”),

11
aff’d, 940 P.2d 348 (Colo. 1997). We are not in a position to

reweigh the evidence, and we do not perceive that the trial court

abused its discretion in making this finding.

¶ 24 Third, we disagree with Banner Health’s assertion that the

court erred by failing to consider the implications of a special needs

trust (SNT) in its assessment of good cause. Although the Gressers

presented evidence that they intended to create an SNT for C.G., the

jury awarded zero damages for the “cost to set up and operate a

trust.” Even assuming the Gressers elect to set up an SNT for C.G.

at a later date, the SNT would only impact C.G.’s future medical

expenses, as such trusts are intended to preserve an injured party’s

eligibility for Medicaid benefits. But Medicaid benefits are an

“exception to the collateral source statute that ought not inure to

the benefit of the tortfeasor.” Pressey v. Child.’s Hosp. Colo., 2017

COA 28, ¶ 14, 488 P.3d 151, 157, overruled on other grounds by

Rudnicki v. Bianco, 2021 CO 80, 501 P.3d 776. Thus, because the

court could not reduce the damages award to the Gressers by the

amount of any Medicaid payments furnished to or on behalf of C.G.,

the court did not abuse its discretion by declining to consider such

payments when determining whether the Gressers had satisfied

12
their burden for exceeding the cap. See id. at ¶ 22, 488 P.3d at

158. We reject Banner Health’s invitation to depart from Pressey.

¶ 25 Additionally, this case is distinguishable from Scholle v.

Ehrichs, in which a division of this court determined that the trial

court erred by finding that the plaintiff owed money to third-party

payers or providers, and by relying on such erroneous finding in

deciding to lift the cap. 2022 COA 87M, ¶ 126, 519 P.3d 1093,

1115 (cert. granted Apr. 10, 2023). Here, by contrast, the court

found that the Gressers presented ample evidence of past and

future medical expenses, and Banner Health conceded that C.G.’s

future medical costs would exceed $1 million even if Medicaid fully

covered certain of her future expenses.

¶ 26 Fourth, we are not persuaded by Banner Health’s argument

that the General Assembly intended to limit the good cause

exception for future earnings to extraordinary circumstances, such

as where the plaintiff has established “a unique capacity and

history of extraordinary earnings that have been cut short by the

injury.” Banner Health supports this contention with comments

from a single legislator whose comments were not tethered to any

statutory language. See Hearings on S.B. 143 before the H.

13
Business Affairs & Labor Comm., 56th Gen. Assembly, 2d Reg.

Sess. (Mar. 10, 1988) (statement of Rep. Patrick A. Grant). But

“[t]he remarks of a single legislator, even the sponsor, are not

controlling in analyzing legislative history.” Chrysler Corp. v.

Brown, 441 U.S. 281, 311 (1979). Significantly, Banner Health

does not point to any controlling authority precluding a court from

considering a permanently disabled child’s future lost wages in

deciding whether to lift the statutory cap. Similarly, Banner Health

fails to provide any record cites to support its assertion that C.G.’s

lost future wages duplicated other damages. The court expressly

found that the damages awarded to the Gressers were not

duplicative based on their life care planner’s testimony that, to

prevent overcompensation, she purposefully excluded from C.G.’s

life care plan items that C.G. would need regardless of her injuries.

¶ 27 Finally, we reject Banner Health’s contention that the court

erred by finding good cause to exceed the cap for the purpose of

awarding prefiling interest to the Gressers. Banner Health asserts

that prefiling interest is included in the $1 million cap “and cannot

be lifted.”

14
¶ 28 “[P]refiling, prejudgment interest is part of ‘damages’ capped

under the HCAA, subject to being uncapped upon a showing of

good cause and unfairness . . . .” Scholle, ¶ 107, 519 P.3d at 1112;

see also Rudnicki v. Bianco, 2023 COA 103, ¶ 44, ___ P.3d ___, ___

(“[P]refiling, prejudgment interest on ‘past and future economic

damages’ is part of ‘past and future economic damages’ and is

awardable beyond the $1 million limitation, provided the other

requirements of the statute are met.” (quoting § 13-64-302(1)(b))).

Banner Health cites to no authority holding that a separate good

cause analysis is required to lift the cap for the purpose of awarding

prefiling interest. Because, as explained above, we discern no

abuse of discretion in the court’s good cause and unfairness

analysis, which extends to the court’s award of prefiling interest, it

properly awarded prefiling interest in excess of the cap.

¶ 29 For these reasons, we conclude that the court did not abuse

its discretion by finding that the Gressers had shown good cause for

exceeding the cap and that application of the cap would be unfair.

¶ 30 We next review the court’s interpretation of the HCAA in

analyzing how it should determine the present value of past and

future economic damages.

15
2. Although the Court Misinterpreted Section 13-64-302(1)(b),
Its Misinterpretation Does Not Require Reversal of
Its Damages Award

a. Statutory Interpretation

¶ 31 We review the court’s interpretation of section 13-64-302(1)(b)

de novo. Wallbank, 140 P.3d at 179. “We construe statutes to give

effect to the intent of the General Assembly. To determine that

intent, we look first to the plain language of the statute, reading the

words and phrases in context and construing them according to

their common usage.” Morris v. Goodwin, 185 P.3d 777, 779 (Colo.

2008) (citation omitted). “If, however, the language is ambiguous,

meaning it is silent or susceptible to more than one reasonable

interpretation, we may use extrinsic aids of construction, ‘such as

the consequences of a given construction, the end to be achieved by

the statute, and the statute’s legislative history.’” People v. Jones,

2020 CO 45, ¶ 55, 464 P.3d 735, 746 (quoting McCoy v. People,

2019 CO 44, ¶ 38, 442 P.3d 379, 389).

¶ 32 The relevant provision of the HCAA states as follows:

The total amount recoverable for all damages
. . . in any civil action for damages in tort
brought against . . . a health-care institution
. . . shall not exceed one million dollars,
present value per patient . . . ; except that, if,

16
upon good cause shown, the court determines
that the present value of past and future
economic damages would exceed such
limitation and that the application of such
limitation would be unfair, the court may
award in excess of the limitation the present
value of additional past and future economic
damages only.

§ 13-64-302(1)(b) (emphasis added).

¶ 33 After a court lifts the cap, section 13-64-302(1)(b) is silent as

to how a court determines the amount of such additional damages

to award the plaintiffs. No published Colorado case directly

answers this question. In Wallbank v. Rothenberg, 74 P.3d 413,

420 (Colo. App. 2003), after holding that the trial court erred by

lifting the statutory cap without a finding of “good cause,” the

division directed the court on remand to award the plaintiff lost

future earnings in the amount the jury had determined. But the

division did not accept the jury’s calculation of such damages

reflexively; it expressly held that the evidence was sufficient to

support the jury’s award. See id. Thus, while the jury’s calculation

of damages still plays a role in HCAA cases, the existing case law

does not clarify the weight a court must or should give to the jury’s

17
damages award or the parameters of the court’s discretion in

calculating damages in excess of the $1 million cap.

¶ 34 We are not persuaded by the parties’ respective interpretations

of the HCAA, which “imply words that simply are not there.” People

v. Diaz, 2015 CO 28, ¶ 15, 347 P.3d 621, 625 (quoting People v.

Benavidez, 222 P.3d 391, 394 (Colo. App. 2009)). The Gressers

argue that the trial court correctly concluded it had a binary choice

under section 13-64-302(1)(b), and that, once it lifts the cap, it is

bound by the jury’s award of past and future economic damages.

¶ 35 By contrast, Banner Health contends that the court has “great

flexibility” and discretion in quantifying the amount of additional

past and future economic damages to award to the plaintiff. For

example, under Banner Health’s reading of section 13-64-302(1)(b),

a court may exceed the cap for certain categories of damages while

declining to exceed the cap for other categories. See Vitetta, 240

P.3d at 325, 329 (affirming trial court’s decision not to exceed the

statutory cap for lost earnings where patient’s daily living expenses

were already included in the award for her future life care and

medical expenses). Citing dicta in a district court order, Banner

Health also asserts that a court may conclude that, even if it

18
determines that imposition of the cap would be unfair, it may find

that “good cause does not exist to raise the cap all the way” to the

amount of the jury’s award. See Gallegos v. LeHouillier, No.

13CV32156, 2020 WL 6694174, at *4 (Colo. Dist. Ct., El Paso Cnty.

Apr. 22, 2020) (concluding, despite its dicta, that “the cap should

be raised . . . to permit the full loss determined by the jury to be

compensated”) (unpublished order).

¶ 36 Rather than engraft such limitations or authorities onto the

statute, we read section 13-64-302(1)(b) against the backdrop of the

case law addressing judicial review of jury damages awards

generally, so long as that case law is consistent with the

legislature’s intent in enacting the HCAA. See Larrieu v. Best Buy

Stores, L.P., 2013 CO 38, ¶ 13, 303 P.3d 558, 561 (“When the

General Assembly legislates in a particular area, we presume it was

aware of existing case law precedent.”); Williams v. White Mountain

Constr. Co., 749 P.2d 423, 428 (Colo. 1988) (“In the face of statutory

silence, questions of interpretation are governed by legislative

intent.”).

¶ 37 Generally, “[t]he amount of damages to which an injured party

is entitled is a matter within the sole province of the jury.” Ochoa v.

19
Vered, 212 P.3d 963, 972 (Colo. App. 2009). Nonetheless, the

reasonableness of a jury’s award is “always subject to judicial

scrutiny in the post-trial and appellate stages of a case.” Averyt v.

Wal-Mart Stores, Inc., 265 P.3d 456, 462 (Colo. 2011). Thus, even

in cases subject to the cap, “the trial court . . . retains its authority

to reduce by remittitur an award it determines to be excessive in

light of the evidence before the jury.” Garhart v.

Columbia/Healthone, L.L.C., 95 P.3d 571, 582 (Colo. 2004). Under

that authority, a court may set aside the verdict if it is “grossly and

manifestly excessive.” Ochoa, 212 P.3d at 973. But the court may

not disturb the amount “unless it is completely without support in

the record.” Id.

¶ 38 Nothing in the HCAA suggests that the General Assembly

intended to alter this interplay between the jury verdict and the

court’s review of that verdict when calculating the amount of

additional past and future economic damages to award after it lifts

the cap. The General Assembly enacted the HCAA based on its

understanding that the cap would “contain[] the significantly

increasing costs of malpractice insurance.” § 13-64-102(1).

Section 13-64-302(1)(b) adds the extra step of the “good cause” and

20
“unfairness” analysis before the court can lift the cap. But the

HCAA does not lessen a court’s discretion, once the court lifts the

cap, by enforcing a binary “cap or jury verdict” choice contrary to

the courts’ longstanding remittitur authority. Neither does the

HCAA bestow greater discretion on a court by allowing it to

undertake its own independent calculations of additional past and

future economic damages unmoored from the jury’s determination

of such damages.

¶ 39 We find support for this interpretation in Pisano v. Manning,

2022 COA 22, ¶¶ 23-24, 510 P.3d 572, 576, in which a division of

this court interpreted section 13-21-102.5(3)(a), C.R.S. 2023, which

contains an analogous damages cap to that found in section

13-64-302(1)(b). Section 13-21-102.5(3)(a) and (c) provide that

damages for noneconomic loss or injury awarded in civil actions

(other than medical malpractice actions) are capped at $250,000,

adjusted for inflation every two years, “unless the court finds

justification by clear and convincing evidence therefor.” Id. The

division determined that the additional requirement of “clear and

convincing evidence” applies to the court’s justification for

exceeding the cap, and not to the fact of damages. Pisano, ¶ 24,

21
510 P.3d at 576. In other words, section 13-21-102.5(3)(a) does not

alter the standard of proof in applicable cases. Id. at ¶ 25, 510 P.3d

at 577. In the same way, we conclude that the “good cause” and

“unfairness” analysis required under section 13-64-302(1)(b)

applies only to a trial court’s decision to exceed the cap and not to

the calculation of additional damages.

b. The Court’s Application

¶ 40 Although the court erred by believing it had only a binary

choice in awarding additional damages to the Gressers, it

conducted the correct analysis in quantifying the amount of such

damages. The court first conducted the good cause analysis, as

described in Part II.A.1 above, and made findings regarding the

unfairness of imposing the cap by considering the reasonableness

of the jury’s award for each category of damages — past medical

expenses, future medical expenses, and future lost wages.

¶ 41 After finding good cause to lift the cap, the court then

acknowledged it could disregard the jury award if the amount of

damages was unsupported by the evidence or indicated that the

jury was improperly motivated by passion or prejudice. Following

its review of the record, however, the court found that “substantial

22
evidence supports the jury’s award of economic damages” and that

the award was “not grossly and manifestly excessive.”

¶ 42 Thus, the court correctly concluded that it would be improper

to adjust the amount of damages that the jury had awarded.

Accordingly, as the court expressly stated, it entered its judgment

“consistent with the jury’s verdict . . . in conjunction with the

court’s findings.” This approach is consistent with the case law

governing judicial review of jury awards.

¶ 43 We disagree with Banner Health’s assertion that the court

improperly engrafted the “grossly and manifestly excessive”

standard for a C.R.C.P. 59 remittitur onto its “good cause” and

“unfairness” analysis for lifting the HCAA cap. In HCAA cases, a

court may exercise its remittitur authority by analyzing the present

value of past and future economic damages on a “case-by-case”

basis, Garhart, 95 P.3d at 582, but only after it has found that the

plaintiff established the good cause and unfairness necessary to lift

the cap. As we explain above, the court properly kept these

analyses separate — it first found good cause to lift the cap, and

then it determined the award was not “grossly and manifestly

excessive.” Id. Based on the latter determination, the court

23
declined to set aside the damages award as quantified in the

verdict.

¶ 44 In sum, while we disagree with the court that it was faced with

a binary choice, once it decided the cap should be lifted, it did not

err by awarding the Gressers the same amount of past and future

economic damages that the jury had calculated.

B. Dr. Rimawi’s Expert Opinions on Causation

¶ 45 Over Banner Health’s objection, the Gressers called Ramzy

Rimawi, M.D., to testify on causation. At trial, Dr. Rimawi opined

that administration of antibiotics to C.G. at specific times during

her second day in the hospital would have “prevented the

permanent neurological harm” she later suffered. Banner Health

contends that the court should have precluded Dr. Rimawi from

testifying on causation because he “was not qualified to opine on

whether a reasonable pediatric specialist would have ordered

antibiotics.” Relatedly, Banner Health argues that the court should

have entered judgment notwithstanding the verdict in its favor

because Dr. Rimawi was the Gressers’ only causation expert and,

without his testimony, they could not prove their negligence claim.

24
Because we disagree with Banner Health’s first argument, its

second argument necessarily fails.

1. Relevant Law and Standard of Review

¶ 46 Trial courts provide an important gatekeeping function in

determining whether a jury should hear particular expert

testimony. See Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 45, 482

P.3d 502, 513. Colorado Rule of Evidence 702 governs a trial

court’s determination as to the admissibility of expert testimony.

People v. Shreck, 22 P.3d 68, 70 (Colo. 2001). “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.” CRE 702. This inquiry focuses on “(1) the reliability

of the scientific principles, (2) the qualifications of the witness, and

(3) the usefulness of the testimony to the jury.” Shreck, 22 P.3d at

70.

¶ 47 “A witness may be qualified by virtue of any one of the five

factors” specified in CRE 702. Huntoon v. TCI Cablevision of Colo.

Inc., 969 P.2d 681, 690 (Colo. 1998). “Under this liberal rule, a

25
court may admit expert testimony if the witness can offer

‘appreciable’ assistance on a subject beyond the understanding of

an ‘untrained layman.’” People in Interest of Strodtman, 293 P.3d

123, 129-30 (Colo. App. 2011) (quoting People v. Williams, 790 P.2d

796, 798 (Colo. 1990)).

¶ 48 “Trial courts are vested with broad discretion to determine the

admissibility of expert testimony. Therefore, we will not overturn a

trial court’s decision absent an abuse of discretion.” Est. of Ford v.

Eicher, 250 P.3d 262, 266 (Colo. 2011) (citation omitted). In

addition, we review de novo a trial court’s denial of a motion for

judgment notwithstanding the verdict. Smith v. Surgery Ctr. at Lone

Tree, LLC, 2020 COA 145M, ¶ 8, 484 P.3d 745, 749.

2. The Court Did Not Abuse its Discretion by Finding
that Dr. Rimawi Was Qualified to Offer
Opinions on Causation

¶ 49 We agree with the court that Dr. Rimawi possessed the

requisite knowledge, skill, experience, training, and education in

the areas of infectious diseases, sepsis, treatment of sepsis, and

management of sepsis regarding patients of all ages to provide

expert testimony on causation. Dr. Rimawi testified that he is

board certified in internal medicine, infectious diseases, and critical

26
care medicine. He explained that he studies how infections happen,

how to treat them, and the consequences of not treating them.

While working as an emergency room physician, Dr. Rimawi gained

experience in suspecting and treating sepsis in newborns through

his daily treatment of infected infants.

¶ 50 At the time of trial, Dr. Rimawi worked at Emory University

Hospital, which he characterized as “probably one of the top in the

world for critical care medicine.” At Emory, he cared for adults in

the intensive care unit (ICU) and served on committees that

developed treatment protocols for patients of all ages, including

those in the NICU. For example, Dr. Rimawi chaired Emory’s

resuscitation committee, which reviewed incidents in which

protocols, such as those for treating sepsis, were not followed. And

he was a member of the antibiotic stewardship committee, which

set forth standards for the administration of antibiotics.

¶ 51 Additionally, Dr. Rimawi was involved in developing Emory’s

“surviving sepsis guidelines,” which provide guidance on

management of sepsis and a screening tool to assist practitioners in

determining whether a patient has developed sepsis. Further,

Dr. Rimawi taught how to suspect and spot sepsis to medical

27
students, nurse practitioners, family practice doctors, pediatricians,

and obstetrical-gynecological doctors. All of these professionals

treat infants and need to know how to recognize sepsis in

newborns.

¶ 52 Based on Dr. Rimawi’s credentials and experience, we hold

that the court did not abuse its discretion by determining that

Dr. Rimawi was “sufficiently qualified to offer opinions related to

treating sepsis in neonates” and that he could testify as to “how

[Banner Health’s] nursing staff’s alleged delay in treatment may

have caused [C.G.’s] injuries.” Similarly, the court did not abuse its

discretion by permitting him to testify “as to what a reasonable

physician would have done” with regard to treating C.G. “had

certain information been provided.” All these opinions related to

causation.

¶ 53 Although Banner Health attacks Dr. Rimawi’s lack of specific

experience in and knowledge of treating newborns in a well baby

hospital unit, such gaps in his background do not alter our

determination that Dr. Rimawi was qualified to offer “appreciable”

assistance on “a subject beyond the understanding of an ‘untrained

layman’” — sepsis treatment and management of patients of any

28
age. Strodtman, 293 P.3d at 130 (quoting Williams, 790 P.2d at

798).

¶ 54 First, while Banner Health characterizes Dr. Rimawi as “an

adult infectious disease physician,” it fails to point to any material

difference between the training of pediatric physicians to suspect,

manage, or treat sepsis and that of physicians who primarily treat

adults. On the contrary, Dr. Rimawi testified that one does not

need to be a pediatric infectious disease doctor to spot the signs of

sepsis in a newborn. The “primary consideration” in determining

Dr. Rimawi’s qualifications for recognizing and treating sepsis in

newborns is his “actual ‘knowledge, skill, experience, training or

education’, rather than [his] particular title.” Melville v. Southward,

791 P.2d 383, 387 (Colo. 1990) (quoting CRE 702).

¶ 55 Second, Banner Health asserts that Dr. Rimawi was “not

familiar with the normal respiratory rate, voiding patterns, or

feeding patterns for neonates,” or with the pain scoring system for

such patients. But the record shows that he obtained that

information through research. Banner Health does not explain why

Dr. Rimawi would need to know such data points without reference

to medical authorities to determine when C.G. developed sepsis.

29
¶ 56 Third, although Dr. Rimawi lacked specific experience in a

postpartum unit and was not credentialed to treat patients under

the age of eighteen at the time of trial, he had treated infants with

sepsis, and he was involved in developing protocols and screening

tools for sepsis treatment of patients of all ages. See Huntoon, 969

P.2d at 690 (“There is no requirement that a witness hold a specific

degree, training certificate, accreditation, or membership in a

professional organization, in order to testify on a particular issue.”).

¶ 57 Finally, Banner Health takes issue with Dr. Rimawi’s lack of

publications on neonatal infection. However, Dr. Rimawi testified

that he participated in peer review of manuscripts submitted to

journals and served on the editorial boards of various publications,

including the Journal of Neonatal Biology. Moreover, he is a prolific

author on subjects relating to infectious diseases generally and

sepsis specifically.

¶ 58 Thus, while such alleged gaps might impact the “weight and

credibility” a jury may afford Dr. Rimawi’s testimony, they did not

preclude him from providing opinion testimony in this case. See

Strodtman, 293 P.3d at 130. The trial court did not abuse its

discretion by determining that Dr. Rimawi was qualified to offer

30
opinion testimony, even though his resume lacked the credentials

that Banner Health deemed necessary for an expert offering an

opinion on an infant’s sepsis infection.

¶ 59 In addition, because Dr. Rimawi was qualified to offer an

opinion on causation, the court properly denied Banner Health’s

motion for judgment notwithstanding the verdict premised on

Dr. Rimawi’s alleged lack of sufficient knowledge and experience.

¶ 60 We next consider whether the court properly limited

Dr. Rimawi’s opinion testimony to his areas of expertise.

3. Dr. Rimawi Did Not Testify Outside the Scope of His Expertise

¶ 61 Banner Health further argues that the trial court erred by

permitting Dr. Rimawi to provide opinions that fell outside the

scope of the subject areas for which the court qualified him as an

expert.

¶ 62 In circumscribing the scope of Dr. Rimawi’s testimony, the

court specified that he could not “testify as to the appropriate

standard of care,” which the parties agree was the standard of care

for nurses. The court explained that, while Dr. Rimawi could not

testify “as to what a nurse should or should not have done,” he

31
would be “permitted to testify as to what a reasonable physician

would have done had certain information been provided.”

¶ 63 Accordingly, the court qualified Dr. Rimawi to offer opinions

regarding important links in the causal chain: he could opine that

delayed reporting of C.G.’s symptoms caused a delay in the

administration of antibiotics, which caused C.G.’s sepsis to

progress, which caused C.G.’s injuries.

¶ 64 The majority of Dr. Rimawi’s testimony involved a general

description of sepsis. He connected this testimony to his opinion on

causation, explaining that a patient with suspected sepsis should

be started on antibiotics within three hours. He said “those three

hours are really critical” because of the exponential growth rate of

bacteria. Such testimony was within the scope of the areas for

which the trial court had qualified Dr. Rimawi as an expert on

sepsis.

¶ 65 Applying his expertise to the facts of C.G.’s case, Dr. Rimawi

testified that C.G. was “very far along” the stages of sepsis by

8:30 p.m. on the second day of her hospitalization, when she was

tachycardic and grunting. He opined that starting the antibiotics at

6 p.m. that day would have prevented C.G.’s permanent

32
neurological injuries. Dr. Rimawi explained that starting them

when C.G. was admitted to the NICU after 11 p.m. was “too late”

because certain of her organs, such as her brain, were already

dying by that time. Dr. Rimawi concluded that “earlier antibiotics

would have had an effect, more likely than not, that . . . would have

prevented [C.G.’s] complications.” This causation testimony fell

within Dr. Rimawi’s designation as an expert in sepsis and its

treatment and management, and the testimony did not, as Banner

Health contends, improperly constitute an opinion on the standard

of care for nurses.

¶ 66 Dr. Rimawi also testified that a reasonable physician would

have begun treating C.G. with antibiotics upon learning from

Banner Health’s nursing staff that C.G. was showing signs of

sepsis. This opinion testimony fell within the permissible scope of

Dr. Rimawi’s endorsement as an expert. While it tangentially

related to a physician’s standard of care, it was not a standard of

care opinion. Rather, it focused on the significance of the length of

time that elapsed between when C.G. first showed signs of sepsis

and when she was first administered antibiotics. This testimony

thus related to a chain in the element of causation and supported

33
the Gressers’ theory that C.G. would not have suffered neurological

injuries had Banner Health’s nurses timely reported the symptoms

of sepsis to C.G.’s physicians.

¶ 67 For these reasons, we hold that Dr. Rimawi did not testify

outside the scope of those subject areas in which the court had

qualified him as an expert.

C. The Court’s Exclusion of Opinion Testimony Regarding
the Present Value of C.G.’s Life Care Plan Based on
a Life Expectancy of Fifty-Eight

¶ 68 At trial, counsel for Banner Health asked their expert

economist, Dr. Eric Joshua Drabkin, to opine on the present value

of C.G.’s life care plan based on a life expectancy of fifty-eight years.

The court sustained the Gressers’ objection to such testimony on

the ground that Banner Health had not previously disclosed this

present value figure to the Gressers. Banner Health argues the

court erred by doing so. We disagree.

1. Additional Facts

¶ 69 Before trial, the Gressers and Banner Health exchanged expert

reports on issues relating to the amount of the Gressers’ damages.

The Gressers engaged John Lawrence Merritt, M.D., to opine on

C.G.’s anticipated life expectancy. In his report, Dr. Merritt stated

34
that the “natural life expectancy” is eighty-one years for a girl in the

United States with the same race and ethnicity as C.G. He noted

that “[a] reduced life expectancy is most closely correlated with

ability for self-mobility and ability to feed oneself,” but he opined

that C.G. “has shown steady progress in areas of motor skills, and

it is to a reasonable degree of medical probability that with

continued intensive rehabilitation training [C.G.] will achieve these

mobility and swallowing goals in the coming years.” He concluded

that “[h]er life expectancy therefore should not be significantly

affected by her injuries, with provision of optimal medical and

supportive care.”

¶ 70 In addition, the Gressers disclosed expert reports concerning

C.G.’s future medical and other health care costs and the present

value of those costs.

¶ 71 Banner Health designated Dr. Drabkin, an economist, to

provide his own calculation of the present value of C.G.’s life care

plan based on three different life expectancies — seventeen, twenty-

one, and “normal life expectancy” of 77.29 years — and on the

expert opinions calculating the amount of C.G.’s future care costs.

Dr. Drabkin calculated that the present value of C.G.’s life care

35
plan, assuming a “normal life expectancy,” was $22,712,545.

Changing the life expectancy figure materially impacted the present

value calculation because it affected the length of time C.G. would

require care.

¶ 72 At trial, Dr. Merritt reiterated his opinion that C.G.’s injuries

would not shorten her life. On cross-examination, counsel for

Banner Health challenged this opinion by asking whether scientific

literature “suggest[s] — and I believe you testified during your

deposition — that 83 percent of cerebral palsy patients have a life

expectancy of less than 58 years.” Banner Health suggested during

the examination that such statement appears in papers published

by Drs. Jordan Brooks, Robert Shavelle, David Strauss, and others

(the Shavelle papers).

¶ 73 After Dr. Merritt said he did not recall “testifying to that”

during his deposition, counsel for Banner Health attempted to

impeach him with his deposition testimony, asking whether during

the deposition, she had asked, “You were aware of the Strauss and

Shavelle literature that reflects that 80 percent have a life

expectancy less than 58 years. Do you see that?” Dr. Merritt

responded during his cross-examination at trial that he was “aware

36
of that statement in the literature.” But he did not testify that he

agreed with the statement.

¶ 74 The court allowed the jurors to submit questions to the

experts. In response to juror questions, Dr. Merritt said that C.G.’s

life expectancy would be reduced by fifteen percent if she were

unable to self-feed and by another fifteen percent if her ability to

self-ambulate did not improve. No party objected to these

questions.

¶ 75 After Dr. Merritt answered the juror’s questions, the court

allowed the attorneys to ask follow-up questions. In response to a

question from counsel for the Gressers, Dr. Merritt said that C.G.’s

life care plan provided for “early intervention to keep [C.G.] healthy

so that she can reach her full life expectancy,” and he noted that

she had been making “remarkable progress on feeding and

ambulation,” much more so than he “would have thought after the

first exam.”

¶ 76 During recross-examination, Dr. Merritt agreed that, if C.G.

was unable to feed herself and unable to self-ambulate, her life

expectancy would be reduced by a total of thirty percent, which was

roughly “24 off the 78 additional years,” or slightly below fifty-eight.

37
But, as noted above, Dr. Merritt indicated at other times during his

examination that he disagreed with the assumptions underlying the

question — that C.G. would never feed herself or self-ambulate.

Thus, he never adopted the opinion that C.G. would only live to age

fifty-eight.

¶ 77 During Dr. Drabkin’s direct examination later in the trial,

counsel for Banner Health elicited his calculations of the present

value of C.G.’s future care costs based on a life expectancy of

twenty-two ($4,300,577) and of eighty-one ($22,873,393).

¶ 78 Counsel for Banner Health then asked Dr. Drabkin whether he

had calculated the present value of C.G.’s future care costs using a

life expectancy “approximately for the mid-50s,” based on

Dr. Merritt’s testimony regarding a potential thirty percent

reduction in C.G.’s life expectancy. The Gressers’ counsel objected.

The court sustained the objection on the ground that Dr. Drabkin

had not previously disclosed this opinion.

¶ 79 At the conclusion of trial, the jury found that C.G. would incur

future “medical and other health care expenses” until 2075, when

she would turn fifty-eight. It determined that the amount of

damages in this category was $23,930,000 — a figure higher than

38
Dr. Drabkin’s present value calculation that assumed a full life

expectancy.

2. Standard of Review and Applicable Law

¶ 80 “We review a trial court’s decision on evidentiary issues for an

abuse of discretion, and a trial court does not abuse its discretion

unless its ruling is manifestly arbitrary, unreasonable, or unfair.”

Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 32,

374 P.3d 443, 453.

¶ 81 Under C.R.C.P. 26(a)(2)(B)(I), a party must disclose specified

information for each of its retained experts, including “a complete

statement of all opinions to be expressed and the basis and reasons

therefor.” C.R.C.P. 26(a)(2)(B)(I)(a). The purpose of the mandatory

disclosure rule is to “ensure that discovery information is provided

early and is updated in a timely manner, thus promoting accuracy,

encouraging settlements, and avoiding surprises at trial.” D.R.

Horton, Inc.-Denver v. Bischof & Coffman Constr., LLC, 217 P.3d

1262, 1267-68 (Colo. App. 2009) (emphasis added).

¶ 82 C.R.C.P. 37(c)(1) provides:

A party that without substantial justification
fails to disclose information required by
C.R.C.P. 26(a) . . . shall not be permitted to

39
present any evidence not so disclosed at trial
. . . , unless such failure has not caused and
will not cause significant harm, or such
preclusion is disproportionate to that harm.

¶ 83 “[U]nder C.R.C.P. 37(c), a trial court has a duty to sanction a

party for failure to comply with certain discovery deadlines by

precluding evidence or witnesses, unless the party’s failure to

comply is either substantially justified or harmless.” Todd v. Bear

Valley Vill. Apartments, 980 P.2d 973, 975 (Colo. 1999); see also

Cath. Health Initiatives Colo. v. Earl Swensson Assocs., Inc., 2017

CO 94, ¶ 15, 403 P.3d 185, 188 (noting that, subsequent to the

2015 amendments to C.R.C.P. 37, the “harm and proportionality

analysis under [C.R.C.P.] 37(c)(1) remains the proper framework for

determining sanctions for discovery violations”). “The burden is on

the non-disclosing party to establish that its failure to disclose was

either substantially justified or harmless.” Todd, 980 P.2d at 978.

¶ 84 The failure to disclose does not result in automatic preclusion

of evidence at trial. “Rule 37(c)(1)’s framework is flexible, not

absolute, and the trial court has the discretion to fashion an

appropriate sanction proportionate to any harm caused.” Cath.

Health Initiatives Colo., ¶ 11, 403 P.3d at 188.

40
3. The Court Did Not Abuse Its Discretion by Precluding
Dr. Drabkin from Testifying Regarding the Present Value of
C.G.’s Life Care Costs Assuming a Life Expectancy of Fifty-
Eight

¶ 85 For two reasons, we hold that the court did not abuse its

discretion by precluding Dr. Drabkin from offering his previously

undisclosed opinion regarding the present value of C.G.’s life care

plan assuming she would live to fifty-eight.

¶ 86 First, Dr. Merritt never testified that he believed C.G. would

only live to fifty-eight. Although Dr. Merritt agreed at trial that

C.G.’s life expectancy could drop to fifty-eight if she never learned to

feed herself or self-ambulate, he rejected the application of these

assumptions to C.G. Dr. Merritt said it was “more likely than not”

that “with continued optimal care,” C.G. could have “a full life

expectancy.” He said that C.G. was “making significant progress”

with walking and predicted that, “if she continues to make these

kind of gains over the next few years,” she “will be ambulating

sufficiently in order to get the exercise that prevents the deleterious

effect of immobility.” Dr. Merritt also said “it’s much more likely

than not that she will be able to achieve . . . the ability to feed

herself” and that the factors of feeding and “the ability to mobilize”

41
will not “weigh in on reducing her life expectancy.” Thus,

Dr. Merritt consistently stated that, in his view, C.G. would have a

full life expectancy.

¶ 87 Because Dr. Merritt did not accept the assumptions

underlying a conclusion that C.G. would only live to fifty-eight, the

court did not abuse its discretion by precluding Dr. Drabkin from

providing the jury with a new, previously undisclosed present value

calculation premised on the assumption that Dr. Merritt had

adopted the fifty-eight-year life expectancy figure.

¶ 88 Second, even if Dr. Merritt’s testimony following the juror’s

questions amounted to a new opinion regarding C.G.’s life

expectancy, such opinion would not have come as a surprise to

Banner Health. During Dr. Merritt’s deposition, as during trial,

Banner Health attempted to discredit Dr. Merritt’s full-life-

expectancy opinion by asking him to acknowledge that the Shavelle

papers, on which he relied in developing his opinion, suggested that

“80 percent of cerebral palsy patients have a life expectancy of less

than 58 years.” Thus, Banner Health was aware of the fifty-eight-

year figure during Dr. Merritt’s deposition and it could not claim

surprise regarding the figure being discussed at trial. If Banner

42
Health intended to press Dr. Merritt on the fifty-eight-year life

expectancy at trial — as it had during his deposition — it should

have disclosed Dr. Drabkin’s calculation of the present value of

C.G.’s life care plan based on that figure in the event its strategy

succeeded and Dr. Merritt agreed that C.G.’s life expectancy could

be fifty-eight years under certain circumstances.

¶ 89 We next consider whether, under the applicable test, Banner

Health’s failure to disclose Dr. Rabkin’s new present value

calculation before trial was justified. In Todd, our supreme court

set forth a nonexhaustive list of factors for determining whether a

party’s failure to make a pretrial disclosure was “substantially

justified or harmless”:

(1) the importance of the witness’s testimony;

(2) the party’s explanation for its failure to comply with the

required disclosure;

(3) the potential prejudice or surprise to the party against

whom the testimony is offered that would arise from

allowing the testimony;

(4) the availability of a continuance to cure such prejudice;

43
(5) the extent to which introducing such testimony would

disrupt the trial; and

(6) the non-disclosing party’s bad faith or willfulness.

Todd, 980 P.2d at 978. Considering these factors, we conclude that

the court did not abuse its discretion by barring Dr. Drabkin from

offering at trial his previously undisclosed present value calculation

of C.G.’s life care plan premised on a life expectancy of fifty-eight.

¶ 90 First, we agree with Banner Health that the testimony was

important. After hearing a life expectancy figure of fifty-eight

bandied about in the courtroom, even if Dr. Merritt did not agree

with that figure, the jury could — and did — conclude that C.G.

would likely live to fifty-eight. Thus, it would have been helpful for

the jury to have Dr. Drabkin’s calculation of the present value of

C.G.’s life care plan premised on a fifty-eight-year life expectancy.

¶ 91 Second, we disagree with Banner Health’s contention that it

could not have disclosed before trial Dr. Drabkin’s calculation of the

present value of C.G.’s life care plan to age fifty-eight because

Dr. Merritt’s testimony following the juror’s questions came as a

surprise. As we explain above, such testimony should not have

come as a surprise to Banner Health because it was familiar with

44
the Shavelle papers throughout the case. Indeed, since the

discovery phase of the case, Banner Health had pressed Dr. Merritt

to agree that the Shavelle papers suggested a life expectancy for

C.G. of “less than 58 years.”

¶ 92 Third, the Gressers faced potential prejudice or surprise if the

court allowed Dr. Drabkin to provide a new present value

calculation at trial. Even if, as Banner Health asserts, Dr. Drabkin

used “the exact same methodology from his reports and deposition,”

with the only difference being the life expectancy factor, the

Gressers likely would have had no opportunity to review or question

that calculation absent a continuance of the trial.

¶ 93 Fourth, it is generally burdensome to place a jury trial on

hold. See People v. Smith, 275 P.3d 715, 722 (Colo. App. 2011) (The

burden of “assembling the witnesses, lawyers, and jurors at the

same place at the same time . . . counsels against continuances

except for compelling reasons.” (quoting Morris v. Slappy, 461 U.S.

1, 11 (1983))). Dr. Drabkin sought to provide his new opinion on

the sixth day of a jury trial. In any event, the Gressers did not

request a continuance and Banner Health did not propose one.

Rather, the court simply disallowed Dr. Drabkin’s testimony

45
regarding the new calculation because it was “undisclosed

testimony.”

¶ 94 Fifth, the record does not reflect the extent to which the

introduction of the challenged evidence would have disrupted the

trial, if at all. We cannot speculate whether, had the court

permitted Dr. Drabkin to provide his new, undisclosed opinion, the

Gressers would have sought a continuance for the purpose of,

among other reasons, obtaining a competing calculation of the

present value of C.G.’s life care plan premised on a life expectancy

of fifty-eight.

¶ 95 Sixth, the record does not establish whether Banner Health’s

attempt to present Dr. Drabkin’s new present value calculation

midtrial reflected, or did not reflect, bad faith or willfulness.

¶ 96 In sum, although the first Todd factor weighs in favor of

admission of Dr. Drabkin’s new opinion, factors two, three, and four

weigh in favor of preclusion. Factors five and six are neutral.

Accordingly, we hold that the court’s ruling on the admissibility of

Dr. Drabkin’s new opinion was not “manifestly arbitrary,

unreasonable, or unfair,” Murray, ¶ 32, 374 P.3d at 453, and

therefore was not an abuse of discretion.

46
D. Counsel’s Suggestions that
Banner Health and Its Witnesses Colluded
to Fabricate Testimony

¶ 97 The trial in this case was hard-fought and included

contentious cross-examinations and arguments. Banner Health

asserts that the court erred by permitting the Gressers’ counsel to

“insinuate — through pervasive questioning and arguments — that

Banner Health’s attorneys and their client-witnesses colluded to

fabricate testimony.” Banner Health contends that the court should

have provided the jury with a curative instruction addressing the

impropriety of the Gressers’ counsel’s suggestions of collusion or,

alternatively, should have taken the case away from the jury and

entered a judgment in favor of Banner Health because the

insinuations of the Gressers’ counsel deprived Banner Health of a

fair trial.

¶ 98 We perceive no error.

1. Additional Facts

¶ 99 Counsel for the Gressers questioned several of Banner

Health’s employees about their meetings with Banner Health’s

attorneys to prepare for the employees’ depositions and trial.

Specifically, during the examinations of Banner Health’s nurses and

47
doctors, counsel for the Gressers elicited admissions that Banner

Health’s counsel represented each of them individually, as well as

testimony regarding the length of their meetings with counsel to

prepare for their depositions and trial, the persons present at those

meetings, and the materials the attorneys asked the witnesses to

review. The court overruled Banner Health’s initial objections to

this line of questioning, determining that the information was

relevant to reveal the witnesses’ potential bias, and noting that the

questioning did not implicate the attorney-client privilege.

¶ 100 However, as counsel for the Gressers persisted with this line of

questioning, the court sustained several of Banner Health’s

objections. For example, after nurse Alayna Blevins confirmed that

at least five other hospital employees were present during one of her

meetings with the attorneys, the court sustained an objection to the

question from the Gressers’ counsel whether she was “familiar with

the phrase ‘get your stories straight’” on the grounds that it was

argumentative. The court also agreed it was improperly

argumentative for the Gressers’ counsel to ask nurse Rachel Ortiz

Ververs, “And here we are, four years later, after the meeting with

the [hospital] lawyers and a lawsuit has been filed, ma’am; and you

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and Nurse Quinones have a completely different story from what

Dr. [Abigail] Myers [one of C.G.’s treating physicians] wrote down,

don’t you?”

¶ 101 Banner Health also asserts that the Gressers’ counsel asked

improperly argumentative questions during the examination of

Dr. Myers. For example, counsel for the Gressers asked Dr. Myers

whether she was aware that Banner Health’s attorneys had

designated her as an expert and had disclosed her anticipated

opinion testimony to counsel for the Gressers nine months before

the attorneys had first contacted her about serving as an expert.

Counsel for the Gressers also elicited testimony from Dr. Myers that

Banner Health’s lawyers had asked her to review transcripts of the

depositions of other hospital employees and the defense’s expert

reports, but not transcripts of the depositions of the Gressers or the

reports of their experts. Banner Health objected when the Gressers’

counsel then asked whether “that sounds an awful lot like

cherrypicking information” and whether being “only given one side

of the story” could “slant [her] opinion and understanding” of the

facts.

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¶ 102 During a bench conference to discuss Banner Health’s

objections to this questioning, the court expressed concern that it

suggested “the lawyers have done something improper, unethical.”

While the court determined that the information Dr. Myers “was

provided or not provided is relevant,” it instructed counsel for the

Gressers to “move on from this line of questioning.”

¶ 103 After the Gressers rested their case-in-chief, Banner Health

renewed its objection to “the continual questioning of the witnesses

on the number of times, the length of time, and information that

they obtained from the meetings with [Banner Health’s] lawyers —

consistently referred to as the Banner lawyers.” Banner Health

argued the attorney-client privilege made it impossible to “cross-

examine or direct the witnesses on what they did or what they

talked about, [or] how long the meetings were” for the purpose of

neutralizing the insinuations inherent in counsel for the Gressers’

questions.

¶ 104 Accordingly, Banner Health asked the court to provide the jury

with a curative instruction that “such conduct by the [Banner

Health] lawyers . . . is not improper and therefore the

attorney[-]client privilege protects such things and it cannot be held

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against [Banner Health and its employees].” Banner Health

requested a mistrial as an alternative remedy, arguing that, without

a curative instruction, there would be no way to “correct the

opinions of this jury” that Banner Health’s lawyers had “done

something unethical.”

¶ 105 The court denied Banner Health’s requests for a curative

instruction and for a mistrial. It determined that none of the

questions sought the disclosure of privileged information,

questioning regarding the witnesses’ preparation for their

depositions and trial was “fair game” and “relevant” for weighing

their credibility, and a curative instruction would invade the jury’s

role in weighing the evidence. Although the court expressed

concern “from a systemic level” about how the insinuations from

both sides would cause “cynicism . . . to trickle down and affect the

jurors’ perceptions of the system of justice,” it concluded that the

Gressers’ counsel had not “crossed a line that would warrant” the

relief that Banner Health sought.

¶ 106 Later in the trial, the Gressers’ counsel challenged a physician

witness who testified that, unlike other doctors, he chose not to

refer to “apnea” in his notes even though C.G. had stopped

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breathing. The Gressers’ counsel retorted, “That testimony is not

good for Team Banner, is it, those notes in the records? Those

aren’t good for Team Banner?” The court sustained Banner

Health’s objection that the question was argumentative and advised

the jury that it should disregard the “improper” and “inappropriate”

term “Team Banner.” The court told the jury, “It’s important you

make your decisions here based on the facts in the case and not on

any characterizations of one side or the other in the case.”

¶ 107 During closing argument, the Gressers’ counsel asked the

jurors to consider whether the Banner Health employees who

testified were not credible because they were “to[e]ing the company

line.” But Banner Health’s counsel did not object to this statement.

¶ 108 After the jury returned its verdict in favor of the Gressers,

Banner Health moved for a new trial on the grounds that the

Gressers’ counsel’s “constant and pervasive implication that

defense counsel engaged in wrongdoing and manipulated witness

testimony denied [Banner Health] of the right to a fair trial.” The

court denied the motion.

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2. Standard of Review and Relevant Law

¶ 109 Trial courts have broad discretion to set the scope and limits

of cross-examination for bias, Bonser v. Shainholtz, 3 P.3d 422, 424

(Colo. 2000); determine “the form and the style of jury instructions,”

Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 601 (Colo. App.

2007); and evaluate “the prejudicial impact of misconduct by

opposing counsel and of any irregularities at trial,” Acierno v.

Garyfallou, 2016 COA 91, ¶ 28, 409 P.3d 464, 469 (citation

omitted). Accordingly, we review for an abuse of discretion the

court’s denial of Banner Health’s request for a curative instruction,

a mistrial, and a new trial in response to the aggressive questioning

of counsel for the Gressers.

¶ 110 “[A] witness’s credibility is for the fact-finder to decide, subject

to the trial court’s discretion” regarding whether “violations of the

ethical rules implicate the fairness of the proceedings.” Murray,

¶ 21, 374 P.3d at 451. When assessing witnesses’ credibility and

thus the weight to give their testimony, the jury may consider

factors such as the consistency of the witnesses’ testimony, whether

other witnesses contradicted them, and the witnesses’ manner and

demeanor on the witness stand. Prudential Ins. Co. of Am. v. Cline,

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98 Colo. 275, 284, 57 P.2d 1205, 1209 (1936), overruled on other

grounds by Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d

947 (1972). “Cross-examination for bias is liberally permitted

because bias is always relevant as discrediting the witness and

affecting the weight of his or her testimony.” Evans v. Colo.

Permanente Med. Grp., P.C., 902 P.2d 867, 874 (Colo. App. 1995),

aff’d in part and rev’d in part on other grounds, 926 P.2d 1218 (Colo.

1996).

¶ 111 At the same time, attorneys have a duty to confine their

arguments to the jury within proper grounds. United States v.

Young, 470 U.S. 1, 8 (1985). An attorney seeking to attack a

witness’s credibility should avoid challenging the witness’s moral

character. See People v. Couch, 179 Colo. 324, 329, 500 P.2d 967,

969 (1972). Moreover, “[a] trial is not a referendum on the conduct

of the attorneys, and disparagement of opposing counsel is

improper.” People v. Garcia, 2012 COA 79, ¶ 13, 296 P.3d 285,

288. Thus, attorneys “must not be permitted to make unfounded

and inflammatory attacks on the opposing advocate.” Young, 470

U.S. at 9.

54
3. The Court Did Not Err by Refusing to Grant Banner Health’s
Requests for a Curative Instruction, a Mistrial, or a New Trial

¶ 112 The Gressers’ counsel walked a fine line during their

aggressive questioning of Banner Health’s witnesses. It was not

improper for counsel to explore whether Banner Health’s witnesses

had coordinated their testimony at joint trial preparation sessions

with Banner Health’s lawyers, whether those lawyers had scripted

the opinions of one of Banner Health’s experts, whether the expert’s

opinions were not based on all relevant facts, and whether a

witness had withheld material information in his notes regarding

C.G.’s symptoms. But accusations of lawyer or witness conduct

such as “getting stories straight” and “cherrypicking” information,

even if potentially proper in closing argument, have no place during

the examination of witnesses absent evidence of misconduct not

present here. A witness’s meeting with a lawyer to prepare for trial

does not, without more, establish collusion or other unethical

conduct. All the more, absent unusual circumstances not present

here, few reasonable lawyers would allow a client to testify without

any preparation.

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¶ 113 Against this backdrop, the court did not abuse its discretion in

evaluating the risk of prejudice to Banner Health resulting from the

challenged questioning and selecting an appropriate remedy in

response to the Gressers’ counsel’s insinuation of collusion between

Banner Health’s witnesses and lawyers.

¶ 114 First, the court correctly determined that the questioning

regarding the time the witnesses spent with counsel, the materials

the witnesses reviewed with the lawyers, and the presence of others

at the trial preparation sessions did not implicate the attorney-

client privilege. See Guy v. Whitsitt, 2020 COA 93, ¶ 21, 469 P.3d

546, 551. Because those facts may influence a witness’ testimony,

that questioning was relevant to the witnesses’ credibility. The

questioning did not improperly probe into communications between

Banner Health’s attorneys and the witnesses. Although Banner

Health is correct that it was unable to respond to the questioning

by counsel for the Gressers by eliciting testimony as to the

substance of those communications because the communications

were privileged, Banner Health’s tactical disadvantage does not

mean that the questioning was improper. Thus, the court did not

abuse its discretion by allowing the Gressers’ counsel to ask the

56
Banner Health employees about their meetings with Banner

Health’s counsel.

¶ 115 Second, the court correctly sustained Banner Health’s

objections to the argumentative questions that more directly

alluded to collusion. The court’s rulings were effective; they cut off

further questioning attacking the character of the witnesses or

counsel for Banner Health. Similarly, the court’s instruction to the

jury to disregard the reference to “Team Banner” precluded the

Gressers’ counsel from repeating the phrase and advised the jury to

decide the case based on the facts and not on characterizations of

the parties. Absent evidence to the contrary, we presume that the

jury followed the court’s instructions. See Qwest Servs. Corp. v.

Blood, 252 P.3d 1071, 1088 (Colo. 2011). These actions sufficiently

remedied any risk of prejudice to Banner Health resulting from the

problematic questioning. See Smith v. Kinningham, 2013 COA 103,

¶ 34, 328 P.3d 258, 265.

¶ 116 Third, it was not manifestly arbitrary, unreasonable, or unfair

for the court to decline to give a curative instruction that Banner

Health lawyers’ conduct in preparing the witnesses was “not

improper” and that the jury should not hold against Banner Health

57
the “accusations that something was done unethically.” The court

explained that it was not the court’s “call as to whether or not the

way the witnesses were prepared leads to the possibility that either

they were coached, or . . . that they had an opportunity to get their

testimony straight.” Further, the court reasoned that Banner

Health’s lawyers had been able to effectively counter any implied

accusations of impropriety. Because the trial court did not abuse

its discretion by declining to provide a mid-trial curative

instruction, the court likewise did not abuse its discretion by

denying Banner Health’s request for the “most drastic” remedy of a

mistrial. Id. (quoting Bloom v. People, 185 P.3d 797, 807 (Colo.

2008)).

¶ 117 Fourth, we do not consider Banner Health’s specific challenge

to the statements in the Gressers’ counsel’s closing argument

because Banner Health did not contemporaneously object to those

statements. “[T]his is not one of the exceptionally rare civil cases

that warrants reversal based on an unpreserved claim of error.”

Pinnacol Assurance v. Laughlin, 2023 COA 9, ¶ 22, 528 P.3d 912,

916.

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¶ 118 Finally, because the court did not abuse its discretion in

addressing each of the challenged questions, we affirm its denial of

Banner Health’s motion for a new trial premised on those questions.

The court was in the best position to evaluate whether the conduct

of the Gressers’ counsel prevented Banner Health from having a fair

trial. See Acierno, ¶¶ 27-28, 409 P.3d at 469. It was not manifestly

arbitrary, unreasonable, or unfair to conclude that the Gressers’

counsel’s questioning did not warrant the drastic remedy of a new

trial.

¶ 119 We reject Banner Health’s invitation to grant a new trial based

on the out-of-state cases cited in its opening brief. We have

reviewed those cases and are not persuaded that they support

Banner Health’s position that the relief it seeks is warranted

because they are either distinguishable or inapposite. See United

States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005) (reversing and

remanding for new trial in criminal case where the prosecutor told

the jury “[defense counsel] wants to distract you” and “[defense

counsel] needs to make sure that they get their stories straight”);

Sizemore v. Fletcher, 921 F.2d 667, 669-71 (6th Cir. 1990)

(affirming grant of habeas relief where the prosecutor denigrated the

59
defendant’s right to counsel by arguing that the defendant had

hired seven attorneys to “get [the] story straight” and “take[] care of

everything”); State v. Underwood, 418 P.3d 658, 666 (Haw. 2018)

(vacating conviction where the prosecutor told jury that the “defense

attorney tried to get [the witness] to make up some story”); People v.

Witted, 398 N.E.2d 68, 78 (Ill. App. Ct. 1979) (ordering new trial in

criminal case where the prosecutor told the jury that defense

counsel would have witnesses “say whatever he wants” and

admonished the jury not to let defense counsel “hide behind

technicalities in the law”); Ky. Guardianship Adm’rs, LLC v. Baptist

Healthcare Sys., Inc., 635 S.W.3d 14, 28 (Ky. 2021) (The trial court

did not err by precluding counsel from asking an adverse witness,

“[H]ow many times have you rehearsed your testimony?”).

III. Disposition

¶ 120 The judgment is affirmed.

JUDGE WELLING and JUDGE GOMEZ concur.

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