Herrera v. Lerma , 440 P.3d 1194 ( 2018 )

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
September 20, 2018
2018COA141
No. 17CA0991 Herrera v. Lerma — Torts — Personal Injury;
Evidence — Relevancy and Its Limits — Exclusion of Relevant
Evidence on Grounds of Prejudice, Confusion, or Waste of Time
A division of the court of appeals concludes that plaintiff’s
evidence of her permanent whole person impairment rating
percentage was relevant in a non-workers’ compensation personal
injury case. Thus, the division reverses the trial court’s judgment
and remands the case for a new trial.
COLORADO COURT OF APPEALS 2018COA141
Court of Appeals No. 17CA0991
Mesa County District Court No. 15CV30729
Honorable Lance P. Timbreza, Judge
Maria Herrera,
Plaintiff-Appellant,
v.
Leo Lerma,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE HAWTHORNE
Berger and Miller*, JJ., concur
Announced September 20, 2018
Killian Davis Richter & Mayle, PC, J. Keith Killian, Damon J. Davis, Benjamin
P. Meade, Grand Junction, Colorado, for Plaintiff-Appellant
Senter Goldfarb & Rice, LLC, Arthur J. Kutzer, Sarah M. Andrzejczak, Denver,
Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Plaintiff, Maria Herrera, appeals the judgment entered on the
jury’s verdict awarding her damages of $1980.81 on her negligence
claim against defendant, Leo Lerma. We reverse and remand.
I. Facts and Procedural Background
¶2 In November 2012, defendant’s truck hit plaintiff’s car from
behind as she slowed for traffic. A week later, plaintiff sought
healthcare at a hospital where she complained of numbness in her
legs and arms as well as neck pain. The doctor diagnosed her with
neck strain.
¶3 In June 2013, plaintiff was involved in a second car accident.
She had stopped at a traffic light and her sandal had become stuck
beneath the brake pedal. As she tried to free it, she accidentally
pushed the accelerator, causing her to hit the trailer hitch of the
truck in front of her. Plaintiff testified that the second accident did
not injure her.
¶4 A year later, starting in June 2014, plaintiff sought additional
medical treatment for her neck and lower back. She then sued
defendant for negligence, claiming total damages of $38,356.46.
The jury awarded her $1980.81 in economic damages but $0 on her
claims of physical impairment and noneconomic damages.
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II. Instructional Error
¶5 Plaintiff contends that the trial court erred by instructing the
jury to consider whether the second accident in June 2013
“increased, aggravated, or worsened any injuries, damages, or
losses caused by the” first accident because defendant hadn’t
presented any evidence supporting such an instruction. We agree.
A. Standard of Review
¶6 We review a trial court’s decision to give a particular jury
instruction for an abuse of discretion. Day v. Johnson, 255 P.3d
1064, 1067 (Colo. 2011); Vititoe v. Rocky Mountain Pavement Maint.,
Inc., 2015 COA 82, ¶ 67. A trial court abuses its discretion only
when its ruling is manifestly arbitrary, unreasonable, or unfair, or
the instruction is unsupported by competent evidence in the record.
Day, 255 P.3d at 1067; Vititoe, ¶ 67.
¶7 “We review a properly preserved objection to a jury instruction
for harmless error.” Waneka v. Clyncke, 134 P.3d 492, 494 (Colo.
App. 2005), aff’d on other grounds and remanded, 157 P.3d 1072(Colo. 2007). Such an error is harmless unless it affects the parties’
substantial rights. C.R.C.P. 61. “The court must order a new trial
when the result of the trial may have been different if the court had
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given the proper instruction.” Clyncke, 157 P.3d. at 1079; Webb v.
Dessert Seed Co., 718 P.2d 1057, 1066-67 (Colo. 1986) (requiring a
new trial when the result would probably have been different if the
court had given the proper instruction); Mendez v. Pavich, 159 Colo.
409, 411-12, 412 P.2d 223, 224 (1966) (requiring retrial when an
instruction is so erroneous that it would probably lead the jury into
error).
B. Analysis
¶8 Using an instruction consistent with CJI-Civ. 6:9 (2009), the
trial court instructed the jury as follows:
The plaintiff . . . claims damages from the
defendant . . . for injuries, damages, or losses
caused by an auto accident on November 13,
2012. If you find that the defendant’s
negligence or negligence per se, if any, was a
cause of any such injuries, damages, or losses,
then the plaintiff may recover all damages
caused by that event. But if you find that
plaintiff was later injured in an auto accident
on June 6, 2013[,] which was not caused by
any acts or omissions of the defendant, then
the plaintiff may not recover any damages
caused only by the second auto accident.
If you find the auto accident on June 6, 2013,
increased, aggravated, or worsened any
injuries, damages, or losses caused by the
auto accident on November 13, 2012, then you
must separate, if possible, those damages
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caused by the first auto accident from those
caused by the second auto accident, and the
plaintiff may recover all those separate
damages caused by the first auto accident.
If it is not possible to separate any damages
caused by the auto accident on November 13,
2012[,] from any caused by the auto accident
on June 6, 2013, then the plaintiff may recover
those damages only from the date of the first
auto accident to the date of the second auto
accident.
Such an instruction is proper when sufficient evidence shows that a
later event or incident either
(1) causes a new, unrelated injury to the
plaintiff or
(2) aggravates the injury the plaintiff suffered
as a result of the defendant’s tortious conduct.
Lascano v. Vowell, 940 P.2d 977, 982 (Colo. App. 1996); see also
Francis ex rel. Goodridge v. Dahl, 107 P.3d 1171, 1175 (Colo. App.
2005) (“Because the evidence was sufficient to support the
subsequent injury instruction and adequately formed a question of
fact for the jury to decide, we perceive no error by the court in
instructing the jury on subsequent injury.”); Guerreo v. Bailey, 658
P.2d 278, 279-80 (Colo. App. 1982) (“Since the defendant
introduced evidence that [plaintiff’s layoff] aggravated the emotional
injuries caused by the collision . . . the instruction was
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warranted.”). Sufficient evidence must exist to justify giving this
instruction because, without such evidence, “[i]t would be mere
conjecture” to presume that the later event caused or aggravated an
existing injury. Brooks v. Reiser, 483 P.2d 389, 391 (Colo. App.
1971) (not published pursuant to C.A.R. 35(f)).
¶9 Such conjecture occurred here. Neither party presented
evidence that plaintiff suffered any injury or aggravation of an
existing injury because of the second accident. Defendant failed to
present his own medical expert and his counsel failed to question
plaintiff’s medical expert about whether the second accident
could’ve contributed to a later need for medical attention. Cf.
Francis ex rel. Goodridge, 107 P.3d at 1175 (“[T]he record reflects
some evidence of a later injury suffered by plaintiff” where “experts
testified for both parties and expressed conflicting opinions on
whether plaintiff’s fall from the pommel horse increased her injuries
caused by the accident with defendant.”). Thus, the evidence at
trial was insufficient to justify instructing the jury about the second
accident. So we conclude that the trial court abused its discretion
in giving such an instruction.
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¶ 10 We also conclude that this error harmed plaintiff. Defendant’s
main defense at trial was that plaintiff’s injuries were caused by the
second accident. His counsel cross-examined plaintiff extensively
about the second accident. He also focused on it during closing
arguments. And most of all, the instruction gave the jury an
unsubstantiated reason for denying plaintiff’s claim for her medical
bills sustained after the second accident, which it arguably did by
awarding plaintiff only $1980.81 — a far cry from her requested
$38,356.46, mostly for medical bills accumulated, or expected to
accumulate, after the second accident.
¶ 11 We therefore conclude that had it not been for the trial court’s
improper instruction, the jury may have reached a different verdict.
So we reverse the court’s judgment and remand this case to the
trial court for a new trial.
¶ 12 Because the following two issues will likely arise on remand in
the event of retrial, we address them now.
III. Impairment Rating
¶ 13 Plaintiff contends that the trial court erred by excluding her
expert’s testimony about her 15% permanent whole body
impairment rating. We agree.
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A. Standard of Review
¶ 14 Trial courts “have broad discretion to admit or to exclude
expert testimony.” Sovde v. Scott, 2017 COA 90, ¶ 24. A “trial
court abuses its discretion if its ruling is manifestly arbitrary,
unreasonable, or unfair, or if it applies an incorrect legal standard.”
Id.B. Analysis
¶ 15 Using the American Medical Association Guides to the
Evaluation of Impairment (AMA Guides), plaintiff’s expert evaluated
plaintiff as having a permanent whole person impairment rating of
15%. The AMA Guides is a publication used by physicians to
calculate the nature and extent of a medical impairment. See
Walker v. Jime Fuoco Motor Co., 942 P.2d 1390, 1392 (Colo. App.
1997). The revised third edition is required by statute to be used in
workers’ compensation cases to determine an employee’s medical
impairment rating. See § 8-42-107(8)(b.5)(I)(A), (b.5)(II), C.R.S.
2017. But, no Colorado statute or case law limits the use of the
AMA Guides to workers’ compensation cases only.
¶ 16 Before trial, defendant asked the court to exclude testimony
about plaintiff’s 15% permanent impairment rating as calculated by
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her medical expert using the AMA Guides’ fifth edition. The court
excluded the testimony because it determined that the impairment
rating was irrelevant under CRE 401 and prejudicial under CRE
403. But it allowed plaintiff’s medical expert to testify that plaintiff
had suffered permanent impairment according to the AMA Guides,
just not as to the actual percentage rating of that impairment.
1. Relevancy
¶ 17 In granting defendant’s motion in limine, the court determined
that plaintiff’s permanent impairment was relevant to her case —
but that the percentage rating of that impairment (15%) was not.
But it provided no persuasive reason.
¶ 18 Defendant argues that the impairment rating was irrelevant
because “this case was not a claim for workers’ compensation
benefits.” It’s true that this isn’t a workers’ compensation case.
But, that doesn’t mean the impairment rating determined by using
the AMA Guides was irrelevant in this case. Simply because the
workers’ compensation statute requires using the AMA Guides in
determining a workers’ compensation claimant’s medical
impairment rating doesn’t mean it necessarily excludes using an
impairment rating in other types of personal injury claims. See
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Music v. Hebb, 744 So. 2d 1169, 1171 (Fla. Dist. Ct. App. 1999)
(“Although impairment rating evidence is specifically permitted in
workers’ compensation actions, its inclusion there does not
preclude such evidence in this personal injury action. . . . Rather,
we hold the admissibility of an impairment rating is governed by the
general rules of evidence.”) (citations omitted); Estate of Carter v.
Szymczak, 951 N.E.2d 1, 6 (Ind. Ct. App. 2011) (“Although it is
clear that [impairment rating] evidence is specifically permitted in
workers’ compensation claims, its inclusion within a worker’s
compensation statutory scheme does not preclude such evidence in
a personal injury action.” (citing Music, 744 So. 2d at 1171)).
¶ 19 To the contrary, the expert’s testimony as to plaintiff’s
impairment rating was relevant here. Most importantly, it would’ve
helped make the existence of plaintiff’s claim of permanent medical
impairment more probable by showing that a physician using
objective AMA guidelines had concluded not only that plaintiff was
permanently impaired, but that the impairment could be quantified
into a scientifically determined percentage. And such testimony
would’ve also given the jury a concrete percentage on which it could
base its verdict. See Estate of Carter, 951 N.E.2d at 6 (“The
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[impairment] rating evidence aided the jury in determining whether
and to what extent [the plaintiff] was permanently injured. The
challenged evidence is therefore relevant. Moreover, [the defendant]
has not shown that its probative value is substantially outweighed
by the danger of unfair prejudice.”); see also Tabieros v. Clark
Equip. Co., 944 P.2d 1279, 1333 (Haw. 1997) (“The extent to which
[the plaintiff] was permanently disabled or impaired by the accident
was obviously relevant to his compensatory damage claim. . . . Our
review of the record convinces us that the jury could not have been
confused or [the defendant] unfairly prejudiced concerning the
significance, with respect to [the plaintiff’s] ‘pain and suffering,’ of
the impairment ratings following . . . cross-examination. We are
likewise convinced that [the doctor’s] expert testimony was of the
sort that ‘would probably aid the trier of fact in arriving at the
truth.’”) (citation omitted).
¶ 20 Because we can’t discern any reason why plaintiff’s permanent
impairment rating determined by her expert witness using the AMA
Guides would be irrelevant — and we can perceive reasons why it
would be relevant — we could conclude that the trial court abused
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its discretion when it excluded the expert witness’s testimony from
the trial. But first we take up the court’s CRE 403 concerns.
2. Rule 403
¶ 21 The trial court concluded that the impairment rating’s
“minimum probative value” was “substantially outweighed by the
danger of unfair prejudice and ha[d] the risk of being confusing or
misleading to the jury” because it would require evidence
(1) “concerning [the impairment rating’s] purpose”;
(2) showing “how [the impairment rating] is determined”; and
(3) determining “what [the impairment rating] means and
which version of the Guides [is] appropriate given [that] the
[workers’ compensation] statute requires one set . . . and
[plaintiff’s medical expert] appeared to use another, not the
most recent.”
The court also reasoned that (4) the “impairment rating’s statutory
application is [sic] to worker’s compensation cases for the purpose
of arriving at a statutorily predetermined sum of money to
compensate for disability in lieu of wages.”
¶ 22 We aren’t persuaded by the court’s reasoning. First of all,
plaintiff’s medical expert testified at length about the
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 purpose of the AMA Guides,
 determination of the ratings, and
 version of the AMA Guides she used as compared to the
version required by the workers’ compensation statute.
¶ 23 Second, for reasons already stated, the workers’ compensation
statute’s use of the AMA Guides to determine a medical impairment
rating in workers’ compensation claims has no bearing on its use in
other personal injury claims.
¶ 24 And third, testimony laying the foundation for the scientific
basis behind a medical expert’s opinion isn’t necessarily confusing
or misleading to the jury. See Tabieros, 944 P.2d at 1333. If
anything, it clarifies the context behind the 15% impairment rating.
Yes, it could be argued that the “more meaningful testimony,” as
the court reasoned, would be about the physical impairment itself
because it “better places the jury in a position to determine the
extent of any damages.” But that doesn’t mean the 15%
impairment rating is irrelevant. If anything, it complements and
corroborates plaintiff’s testimony. And it gives the jury another
perspective to consider, which arguably places the jury in an even
better position to determine plaintiff’s damages.
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¶ 25 For these reasons, we conclude that the trial court abused its
discretion when it excluded plaintiff’s expert’s testimony about
plaintiff’s 15% impairment rating.
IV. Insurance Question During Voir Dire
¶ 26 Plaintiff contends that the trial court erred by preventing her
counsel from asking prospective jurors during voir dire whether
they had an interest in defendant’s insurance carrier. We agree. As
mentioned earlier, we address this issue because it is likely to arise
on remand in the event of retrial. But we don’t address defendant’s
preservation arguments because we doubt that this issue will arise
in the same manner as it did in the original proceedings.
A. Standard of Review
¶ 27 We review a trial court’s decision to limit voir dire for an abuse
of discretion. People v. Collins, 730 P.2d 293, 300 (Colo. 1986)
(“The propriety of questions to potential jurors on voir dire is within
the discretion of the trial court, and its ruling thereon will not be
disturbed on appeal unless an abuse of that discretion is shown.”).
B. Analysis
¶ 28 Before trial, plaintiff sought permission from the court to ask
prospective jurors during voir dire, “[A]re any of you now or have
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any of you been an agent, stockholder, or employee of Young
America Insurance Company in this case or an underwriting
company of Young America or do any of you have any other interest
in a subsidiary company of Young America?” (the insurance
question). Defendant objected because “this case is fraught with
danger to provide some kind of indication to the [j]ury that liability
insurance is available.” The court ruled that plaintiff could ask the
broad insurance question as plaintiff had phrased it, but without
mentioning defendant’s specific insurance carrier, because “then
we’re finding out information that may lead to, arguably, reasons to
not have a [j]uror be part of the panel.” It also said that, “if the
[j]uror answers in the affirmative, we can address what may be
appropriate from there.”
¶ 29 This issue presents essentially the same circumstances
reviewed by our supreme court in Smith v. District Court, 907 P.2d
611 (Colo. 1995). There, the court framed the insurance question
as “whether prospective jurors are officers, directors, or
policyholders of the defendant’s insurance carrier.” Id. at 612. The
court also noted that “[i]t is well established in Colorado that the
insurance question . . . may be asked by counsel during voir dire of
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prospective jurors.” Id. And the court then held that, “[a]ccording
to our precedent, counsel may ask the insurance question during
voir dire in order to determine the prejudices and biases of
prospective jurors. We therefore hold that the trial court
erroneously prohibited plaintiff’s counsel from asking whether
prospective jurors are officers, directors, or policyholders of
[defendant’s insurance carrier] during voir dire.” Id. at 613.
¶ 30 Still, defendant argues that in a “modern personal injury
lawsuit, jurors know, or at least can presume, that insurance is
somehow involved . . . [and] [t]here is no purpose for plaintiffs to
present the insurance question to the jury, as it only indicates that
insurance is an issue in the case.” He also asserts that the trial
court’s ruling that plaintiff could ask the broad insurance question
was a reasonable option for the trial court to follow. But we are
“bound to follow supreme court precedent.” In re Estate of
Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney, 250
P.3d 762, 768 n.3 (Colo. App. 2010)). And here, we are bound by
the supreme court’s explicit holding that counsel is entitled to ask
the insurance question during voir dire to determine the biases and
prejudices of prospective jurors.
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¶ 31 So, the trial court abused its discretion by not allowing
plaintiff to ask the insurance question during voir dire.
V. Conclusion
¶ 32 We reverse the trial court’s judgment and remand the case to
the trial court for a new trial.
JUDGE BERGER and JUDGE MILLER concur.
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