Cory Wolven, Plaintiff-Appellee, v. Jeanmadi del Rosario Velez, Defendant-Appellant.
No.
Colorado Court of Appeals
January 18, 2024
2024COA8
Opinion by JUDGE FOX; Schutz and Berger, JJ., concur
Jefferson County District Court No. 21CV30399; Honorable Russell Klein, Judge. JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS. *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
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
January 18, 2024
2024COA8
No. 22CA2120, Wolven v. del Rosario Velez — Torts — Personal Injury; Creditors and Debtors — Health-care Provider Liens — Assignment — Not Admissible as Evidence
In this personal injury action, the defendant appeals the trial court‘s decision to exclude evidence of the plaintiff‘s health-care provider lien from trial per
Cheney Galluzzi & Howard, LLC, Timothy C. Galluzzi, Kevin B. Cheney, Denver, Colorado, for Plaintiff-Appellee
¶ 1 Defendant, Jeanmadi del Rosario Velez, appeals the trial court‘s order of judgment and jury verdict against her and in favor of plaintiff, Cory Wolven, awarding Wolven $1,953,443.00 in damages. We affirm and remand with directions.
I. Background
¶ 2 On September 26, 2019, Velez failed to stop at a stop sign in Wheat Ridge, Colorado, and collided with Wolven‘s vehicle. After the accident, Wolven was diagnosed with several long-term spinal and neck injuries that she attributes to the crash. Wolven sued Velez for these injuries on April 8, 2021, and a jury found in Wolven‘s favor on October 13, 2022.
¶ 3 The jury awarded Wolven $450,264.00 for noneconomic and injury losses, $500,000.00 for economic losses, and $1,003,179.00 for physical impairments, for a total award of $1,953,443.00.1
Velez now challenges the jury‘s verdict and the trial court‘s order entering judgment against her.
¶ 4 On appeal, Velez raises three issues for review. First, Velez contends that the trial court erred when it allowed Wolven‘s expert to testify about Wolven‘s 8% “whole person permanent impairment rating,” calculated using the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (AMA Guides). Velez contends that the AMA Guides’ use is improper here because
¶ 5 Second, Velez contends that the trial court should have issued a limiting instruction informing the jury how impairment ratings are calculated, or about their use in workers’ compensation cases, and that without such an instruction the jury could not reliably calculate Wolven‘s damages.
¶ 6 Third, Velez contends that the trial court erred by retroactively applying
¶ 7 We reject these contentions, remand for correction of the judgment amount consistent with this opinion, and otherwise affirm.
II. Preservation
¶ 8 “[I]ssues not raised in or decided by a lower court will not be addressed for the first time on appeal.” Melat, Pressman & Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18. To preserve an issue for appeal, an appellant, during trial, must raise it in a manner specific enough that it “draws the [trial] court‘s attention to the asserted error.” People v. McFee, 2016 COA 97, ¶ 31. Velez‘s first two contentions were preserved by specific objections, and the third by a pretrial motion.
III. Standard of Review
¶ 9 We review a trial court‘s decision to admit or exclude evidence for an abuse of discretion. Hall v. Frankel, 190 P.3d 852, 858 (Colo. App. 2008). We will only overturn the judgment of the trial court as an abuse of its discretion if the decision was “manifestly arbitrary, unreasonable, or unfair.” Id.; see also People v. Destro, 215 P.3d 1147, 1152 (Colo. App. 2008) (“A trial court has broad discretion to determine the admissibility of expert testimony pursuant to CRE 702, and we will not overturn its ruling absent an abuse of that discretion.“). “Whether the court misapplied the law in making evidentiary rulings is reviewed de novo.” Bd. of Cnty. Comm‘rs v. DPG Farms, LLC, 2017 COA 83, ¶ 34.
¶ 10 We also review de novo whether a trial court‘s jury instructions correctly informed the jury of the law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). If the trial court‘s instructions were an accurate statement of the law, “we review a trial court‘s decision to give a particular jury instruction for an abuse of discretion.” Id. “[A] trial court has broad discretion to determine the form and style of jury instructions.” Id. Thus, a trial court only abuses its discretion when deciding whether to provide a particular jury instruction when the ruling is “manifestly arbitrary, unreasonable, or unfair.” Id.
IV. Analysis
A. The Trial Court Properly Admitted the Impairment Rating Evidence Based on the AMA Guides
¶ 11 Velez‘s first argument is that the trial court erred by admitting Wolven‘s expert‘s testimony concerning Wolven‘s “whole person permanent impairment” rating, derived from the AMA Guides, because the AMA Guides’ impairment ratings are only relevant in the workers’ compensation context. To this end, Velez asks that we decline to follow another division of this court‘s holding on this issue in Herrera v. Lerma, 2018 COA 141. Because we find the reasoning in Herrera persuasive, we reject Velez‘s contention.
1. Relevant Facts
¶ 12 After he was admitted as an expert in “physical medicine and rehabilitation,” Dr. Lee Moorer testified about the AMA Guides’ impairment rating for Wolven. Because Wolven hired him to conduct an independent medical evaluation, Dr. Moorer testified extensively about the examinations he performed. This included, for example, reviewing Wolven‘s medical history and her medical imaging results, assessing her neck‘s possible range of motion, assessing Wolven for damaged spinal ligaments and conducting orthopedic ligament testing, and verifying that Wolven was not “faking” her injuries.
¶ 13 Dr. Moorer‘s examinations led him to conclude that Wolven had suffered various injuries, including a torn alar ligament, spinal disc bulges and herniations, and cervical facet injuries. Dr. Moorer‘s diagnosis was for “cervical instability,” damage to cervical ligaments, and “cervicogenic headaches.” He also concluded that Wolven would suffer a “permanent impairment” and would not return to her “pre-crash health status.”
¶ 14 When Wolven‘s counsel asked whether there were “standardized guidelines” for measuring permanent impairment, Dr. Moorer then provided testimony on the AMA Guides’ impairment ratings, over Velez‘s objection. Dr. Moorer testified that the AMA Guides are released by the AMA and routinely updated, and that he used the fifth edition of the AMA Guides to conclude that Wolven had an 8% “whole person permanent impairment,” based on her “pain and loss of range of motion.”
¶ 15 On cross-examination, Velez‘s counsel inquired about the impairment rating and how it was calculated. This included asking Dr. Moorer to explain that the AMA Guides are typically used in workers’ compensation cases, which are administrative proceedings. Velez‘s counsel then discussed at length Dr. Moorer‘s examinations, the medical imaging he reviewed, and his expectations for Wolven‘s future care. Velez‘s counsel also asked if most doctors use the third edition of the AMA Guides in workers’ compensation cases, and Dr. Moorer said that, at least when he was doing workers’ compensation cases, he believed this was correct.
¶ 16 On redirect, in response to cross-examination about the AMA Guides’ use in workers’ compensation cases, Wolven‘s counsel asked Dr. Moorer to read an excerpt of text to the jury. The excerpt included an explanation by the AMA that the AMA Guides were intended to be used as a tool for medical practitioners to “rate impairment to assist adjudicators and others in determining the financial compensation” awarded to injured individuals and that they have applications in contexts outside of workers’ compensation, like personal injury cases.
¶ 17 The AMA Guides were later discussed during cross-examination of Velez‘s expert
¶ 18 Wolven‘s counsel then asked if she was aware that the AMA Guides prefer inclinometers for range of motion testing because it can be difficult to assign standardized values for a person‘s impairment. Dr. Brunworth responded that this was true, but she was unsure how helpful the AMA Guides would be outside of workers’ compensation cases. Dr. Brunworth later agreed with Dr. Moorer‘s prior testimony that, under the AMA Guides, Wolven had an 8% permanent impairment rating.2
¶ 19 On redirect, Velez‘s counsel also questioned Dr. Brunworth to clarify that an impairment rating is used to derive a figure for settlements in workers’ compensation cases, which do not include compensation for pain and suffering.
2. Analysis
¶ 20 Herrera v. Lerma dealt with a very similar issue to the contention in this case. 2018 COA 141. There, the plaintiff‘s vehicle was struck from behind, causing the plaintiff neck and back pain, so the plaintiff filed a personal injury lawsuit. Id. at ¶¶ 2-4. The plaintiff‘s expert witness determined that the plaintiff had a “permanent whole person impairment rating of 15%” based on the fifth edition of the AMA Guides. Id. at ¶¶ 15-16.
¶ 21 The defense, much like in this case, argued the evidence should have been excluded because impairment ratings are irrelevant outside of workers’ compensation cases. Id. at ¶ 18. The argument was grounded in the fact that, by statute, in workers’ compensation cases, treating physicians must base their physical impairment ratings on testing required by the revised third edition of the AMA Guides.
¶ 22 The Herrera trial court excluded the exact percentage of the rating, fearing it might be irrelevant and overly prejudicial, but it allowed the expert to testify that the plaintiff “had suffered permanent impairment according to the AMA Guides.” Herrera, ¶ 16. On appeal, a division of this court held that, “[s]imply 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.” Id. at ¶ 18.
¶ 23 The division held that the expert‘s testimony was relevant because it “would‘ve helped make the existence of plaintiff‘s claim of permanent medical impairment more probable by showing that a physician using the objective AMA guidelines had concluded not only that plaintiff was permanently impaired, but that the impairment could be quantified into a scientifically determined percentage.” Id. at ¶ 19. Put simply, because the evidence could have given the jury a “a concrete percentage on which it could base its verdict,” the evidence was relevant, and the division could not discern how the evidence was irrelevant. Id. at ¶¶ 19-20.
¶ 24 Furthermore, the Herrera division held that the evidence would not have been overly prejudicial, in violation of CRE 403, because the expert had testified about the purpose of the AMA Guides, how the rating was determined, and which version of the AMA Guides the expert used. Id. at ¶ 22. Additionally, the division concluded that the use of the AMA Guides in workers’ compensation cases had “no bearing” on their use elsewhere and that explaining — rather than introducing confusion about — how the rating is calculated would only help the jury. Id. at ¶¶ 23-24. As a result, the division found
¶ 25 We find the reasoning in Herrera persuasive and hold that the impairment rating evidence based on the AMA Guides at issue here, admitted through an expert, was relevant and not unfairly prejudicial. CRE 403; see also Sovde v. Scott, 2017 COA 90, ¶ 24 (“Trial courts have broad discretion to admit or to exclude expert testimony . . . .“). Further, while
¶ 26 The relevancy of the AMA Guides’ impairment rating is the same here as it was in Herrera — the AMA Guides can provide a jury with a standardized rating for an injured individual‘s impairment, as determined by a medical professional. Herrera, ¶ 19. Thus, the AMA Guides can provide additional concrete information that may aid the jury‘s factfinding, and we perceive no reason why they might be irrelevant simply because a version of the AMA Guides is used in workers’ compensation cases in Colorado.
¶ 27 This is particularly true where any disagreement about the AMA Guides’ value, or an impairment calculation, can be contested through direct and cross-examination, as well as additional expert witnesses, to mitigate risks of prejudice. See Ross v. Colo. Nat‘l Bank of Denver, 170 Colo. 436, 446, 463 P.2d 882, 887 (1969) (“It is fundamental that once a witness testifies as an expert, he subjects himself to the most rigid kind of cross-examination, including searching questions concerning his qualifications, the extent of his knowledge, and the basis of his opinion.“). A jury is free to decide for itself what weight to give an expert‘s testimony. See Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 23. Indeed, the court explicitly instructed the jury that it could accept or reject any expert testimony.
¶ 28 Additionally, much like in Herrera, the jury here was presented with multiple pieces of testimony that highlighted the probative value of the AMA Guides evidence and provided context for the impairment rating. This included what the AMA Guides are and who creates them, their use in workers’ compensation cases, and which version Wolven‘s expert used. Furthermore, the jury heard extensive direct and cross-examination testimony about the medical examinations and imaging that informed Wolven‘s expert‘s diagnoses and impairment rating decision, and his expert opinions.
¶ 29 The jury also learned how the AMA intended for the AMA Guides to be used and their potential applicability to fields other than workers’ compensation. Furthermore, Velez‘s expert witness also testified on cross-examination whether she thought the AMA Guides might apply to issues outside of workers’ compensation. And, had Velez wished, her counsel could have cross-examined Wolven‘s expert witness on the subject further. Or she could have asked her own expert witness about the AMA Guides to further highlight disagreements over their use. But she largely failed to do so.
¶ 30 As a result, we find that the expert testimony concerning the AMA Guides’ impairment rating at issue was relevant and its probative value outweighed its risk of unfair prejudice, in accordance with Herrera‘s persuasive reasoning. See Herrera, ¶¶ 19-24; CRE 403. And the trial court did not abuse its discretion by relying on binding precedent to admit the evidence. See Hall, 190 P.3d at 858; Scott, ¶ 24; C.A.R. 35(e) (Court of appeals “[o]pinions designated for official publication must be followed as precedent by all lower court judges in the state of Colorado.“).
B. The Trial Court Properly Refused Velez‘s Proposed Jury Instruction
¶ 31 Velez next contends that the trial court erred by declining to provide a limiting instruction “on how impairment ratings work — specifically, how and why they are different in workers’ compensation cases
1. Relevant Facts
¶ 32 Velez never proffered a specific jury instruction to the trial court detailing a proposed limiting instruction for the impairment rating evidence from the AMA Guides. But, at trial, Velez‘s counsel noted for the court that “the physical impairment in a civil case is not the same thing as a physical impairment in a workers’ compensation case.”
¶ 33 Thus, Velez‘s counsel requested that the trial court explain in a jury instruction that the trial court had taken judicial notice of this, and that workers’ compensation cases “do not have a category for noneconomic damages.”3 The fear, Velez‘s counsel reasoned, was that because workers’ compensation cases do not award noneconomic pain and suffering damages, the jury would be confused by the mention of pain and suffering damages in the same instruction as physical impairment damages. Velez‘s counsel also requested that the trial court include a definition of “physical impairment,” but dropped this contention during trial. The trial court denied both requests.
¶ 34 The accepted jury instructions did not define physical impairment and the damages instruction was modeled on Colorado Pattern Civil Jury Instruction 6:1, CJI-Civ. 6:1 (2023). It detailed:
Plaintiff, Cory Wolven, has the burden of proving, by a preponderance of the evidence, the nature and extent of her damages. If you find in favor of the plaintiff, you must determine the total dollar amount of plaintiff‘s damages, if any, that were caused by the negligence of the defendant.
In determining such damages, you shall consider the following:
1. Any noneconomic losses or injuries which plaintiff has had to the present time or which plaintiff will probably have in the future, including: physical and mental pain and suffering, inconvenience, emotional stress, and impairment of the quality of life. In considering damages in this category, you shall not include actual damages for physical impairment, since these damages, if any, are to be included in a separate category.
2. Any economic losses or injuries which plaintiff has had to the present time, including: reasonable and necessary medical treatment expenses.
3. Any physical impairment. In considering damages in this category, you shall not include damages again for losses or injuries already determined under either numbered paragraph 1 or 2 above.
2. Analysis
¶ 35 “As long as the instruction properly informs the jury of the law, a trial court has broad discretion to determine the form and style of jury instructions.” Day, 255 P.3d at 1067.
¶ 36 In regard to defining physical impairment, note 9 to CJI-Civ. 6:1 explicitly states that “[t]he terms ‘physical impairment’ and ‘disfigurement’ are not expressly defined in
and damaging consequences of a defendant‘s negligence or misconduct,” without defining the terms further).
¶ 37 Thus, the trial court did not inaccurately inform the jury of the law by refusing to include an instruction defining physical
¶ 38 As for whether the trial court should have provided a limiting instruction to the jury detailing how the AMA Guides calculate impairment ratings, there is no CJI-Civ. instruction available that could have informed the trial court on this issue, nor, again, did Velez propose one of her own. Furthermore, we have identified no authority that indicates the trial court needed to provide such an instruction. To the contrary:
Despite a trial court‘s discretion as to jury instructions’ form and style, we disfavor instructions emphasizing specific evidence. We have stated a trial court “has no duty to select all the salient points in the evidence, favorable and unfavorable, and specifically call them to the attention of the jurors,” because such pointed instructions tend to confuse the jury and result in incorrect directives regarding evidentiary weight.
Krueger v. Ary, 205 P.3d 1150, 1157 (Colo. 2009) (quoting Lowe v. People, 76 Colo. 603, 615, 234 P. 169, 174 (1925)).
¶ 39 Velez‘s requested limiting instruction, to the degree we can infer its contents, would likely have been the kind of instruction that could improperly bring a jury‘s attention to an evidentiary issue and cause unnecessary confusion.
¶ 40 Velez‘s main point on this issue, that workers’ compensation cases do not allow noneconomic damages like pain and suffering, was discussed only briefly during trial — particularly compared to the direct and cross-examination testimony addressing how the AMA Guides work and their use by Wolven‘s expert, as discussed above. Velez brought the damages contention up briefly with her own expert witness, Dr. Brunworth, but only asked a single question on the subject, and the jury declined to ask any questions. And the point was briefly elaborated on during Velez‘s closing argument, highlighting how workers’ compensation cases utilize impairment ratings differently.4
¶ 41 For the trial court to then issue a separate limiting instruction detailing that the jury must consider that workers’ compensation cases treat physical impairment damages differently than personal injury cases do — invoking a wholly different field of law not before the jury — would be irrelevant at best, and confusing at worst. And, importantly, such an instruction could improperly direct jurors to give more, or less, weight to the AMA Guides impairment evidence introduced at trial. See Krueger, 205 P.3d at 1157. Had Velez wished to further highlight her disagreements with the AMA Guides evidence, the proper way to address this would have been through direct and cross-examination and closing argument, rather than a jury instruction.
¶ 42 Finally, precedent explicitly dictates that physical impairment damages are a separate category of damages from noneconomic ones — as expressed in the final accepted instructions. In Preston, for example, the Colorado Supreme Court noted that, “[b]ecause damages for these injuries are often the most important in making the plaintiff whole, a separate category of damages for physical impairment and disfigurement is necessary and important.” 35 P.3d at 441; see Pringle, 171 P.3d at 631 (“Our analysis of the common law and principles underlying our discussion in Preston that physical impairment and disfigurement constitute a separate category of damages from noneconomic damages stands.“).
C. The Trial Court Properly Excluded Evidence of Wolven‘s Health-Care Provider Lien
¶ 44 Velez lastly contends that the trial court erred when it excluded evidence of Wolven‘s health-care provider lien from trial per
1. Relevant Facts
¶ 45 After Wolven‘s car crash, she financed some of her medical care provided by the Centento-Schultz Clinic through a health-care provider lien with a company called Quantum Specialist Network (QSN). Wolven granted QSN a lien on any favorable judgments or settlements Wolven received in exchange for payment of her medical expenses. It is unclear from the record before us exactly when the original lien agreement between Wolven and QSN was finalized, but Wolven began receiving treatment from the Centento-Schultz Clinic, apparently billed to QSN, in March 2021.
¶ 46 On October 5, 2022, five days before Wolven‘s October 10 trial began, QSN and Wolven amended the lien agreement. The change may have been made after QSN realized that it needed to amend the agreement to satisfy the disclosure requirements in
2. Analysis
¶ 47 Colorado‘s “collateral source rule” originated in common law but is now codified in statute. Ronquillo v. EcoClean Home Servs., Inc., 2021 CO 82, ¶ 13;
¶ 48 The “pre-verdict evidentiary” component of the rule, as relevant here and codified at
¶ 49 In 2021, the Colorado legislature enacted
¶ 51 The trial court excluded the amended QSN lien agreement from trial, denying Velez‘s pretrial motion, because it found that
¶ 52 Velez contends that the trial court erred by granting the statutory protections of
¶ 53 Whether the amended QSN lien agreement was properly excluded at trial depends on whether it met the requirements of
¶ 54 The plain language of
¶ 56 We, however, share the trial court‘s concerns surrounding the last-minute amendment of the QSN lien agreement ahead of trial. Because
V. Disposition
¶ 57 Because the trial court‘s October 13, 2022, “Order Regarding Verdict” mistakenly totals the jury‘s verdict to be $1,954,443.00, when by our calculation the award should in fact be for a total of $1,953,443.00, we correct this mistake with this opinion and remand to the trial court to recalculate Wolven‘s damages award. See Bell v. McCann, 535 P.2d 233, 235 (Colo. App. 1975) (not published pursuant to
¶ 58 We affirm the jury verdict and the judgment of the trial court and remand the case with directions.
JUDGE SCHUTZ and JUDGE BERGER concur.