2018 COA 141
Colo. Ct. App.2018Background
- In November 2012 Herrera's stopped car was rear-ended by Lerma; she sought treatment and was diagnosed with neck strain.
- In June 2013 Herrera was involved in a second, unrelated collision; she testified the second crash did not injure her, but she later sought additional treatment beginning June 2014.
- Herrera sued Lerma for negligence seeking about $38,356 (mostly medical expenses); a jury awarded only $1,980.81 and $0 for impairment and noneconomic damages.
- At trial the court gave a jury instruction allowing the jury to apportion or deny recovery if the June 2013 accident "increased, aggravated, or worsened" injuries from the 2012 crash despite no evidence supporting aggravation by the 2013 accident.
- The court excluded testimony of Herrera’s expert that quantified a 15% permanent whole-person impairment under the AMA Guides, allowing only testimony that some permanent impairment existed.
- The court limited voir dire by preventing counsel from asking prospective jurors whether they had an interest in Lerma’s specific insurer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by instructing the jury to consider whether the 2013 accident aggravated injuries from the 2012 accident | The instruction was unsupported by competent evidence; defendant offered no expert linking the 2013 crash to later treatment | The instruction was proper to allow the jury to consider a subsequent event that might have caused or aggravated injury | Reversed: instruction was an abuse of discretion and prejudicial because no evidence supported aggravation and it likely affected the verdict |
| Whether exclusion of the 15% AMA Guides impairment rating was proper | The numerical impairment rating was relevant and probative for the jury to assess permanent impairment and damages | The rating is tied to workers’ compensation use and would be confusing, misleading, or unfairly prejudicial | Reversed: exclusion of the percentage rating abused discretion; the rating is admissible subject to appropriate foundation and cross-examination |
| Whether the trial court properly limited voir dire by barring the insurer-specific question | Counsel should be permitted to ask if prospective jurors have an interest in the defendant’s insurer to uncover bias | Revealing an insurer would unduly emphasize insurance and prejudice the jury | Reversed: supreme court precedent permits the insurance question to detect juror bias |
| Whether errors were harmless or required a new trial | Errors affected plaintiff’s substantial rights and could have changed the verdict given defense focus on the second accident and the low award | Errors were permissible or harmless | Court held errors were not harmless and remanded for a new trial |
Key Cases Cited
- Day v. Johnson, 255 P.3d 1064 (Colo. 2011) (standard for reviewing jury-instruction rulings and abuse of discretion)
- Waneka v. Clyncke, 134 P.3d 492 (Colo. App. 2005) (harmless-error review for preserved jury-instruction objections)
- Clyncke v. Waneka, 157 P.3d 1072 (Colo. 2007) (retrial required when improper instruction may have affected result)
- Webb v. Dessert Seed Co., 718 P.2d 1057 (Colo. 1986) (new trial if improper instruction probably changed outcome)
- Lascano v. Vowell, 940 P.2d 977 (Colo. App. 1996) (permitting subsequent-injury instruction only when supported by evidence of new or aggravating event)
- Francis ex rel. Goodridge v. Dahl, 107 P.3d 1171 (Colo. App. 2005) (expert conflict can support subsequent-injury instruction)
- Walker v. Jime Fuoco Motor Co., 942 P.2d 1390 (Colo. App. 1997) (discussion of AMA Guides as a tool for quantifying impairment)
- Tabieros v. Clark Equipment Co., 944 P.2d 1279 (Haw. 1997) (impairment ratings are relevant to compensatory damages and not inherently confusing)
- Smith v. District Court, 907 P.2d 611 (Colo. 1995) (voir dire may include a question whether prospective jurors are officers, directors, or policyholders of defendant’s insurer)