The Colorado Court of Appeals suggests that the decision of whether a Colorado trial judge should double the cap on noneconomic damages (which is permitted under C.R.S. 13-21-102.5(3)(a)) is largely subjective. It seems to come down to whether the judge subjectively finds exceptional circumstances. Based on the language of the new appellate opinion, exceptional circumstances appear to be little more than the trial court's subjective opinion that the plaintiff was grossly undercompensated for her injuries. The appellate panel's discussion hints at some marginally helpful guideposts but no firm standard. Thus, C.R.S. 13-21-102.5(3)(a) appears to be a safety valve for the trial courts to use when the harshest impacts of Colorado's noneconomic damages caps are most apparent.
The case is Pisano v. Manning, 2022COA22. It stems from a 2014 car accident in which Manning rear-ended Pasano on I-70 in Colorado. Manning admitted liability and the case was tried on the issues of causation and damages. Pisano claimed cognitive impairment from a mild traumatic brain injury. She also complained of neck pain and chronic headaches. In addition to non-economic pain and suffering damages, she also claimed permanent impairment. Importantly, under Colorado law, noneconomic damages (i.e., pain and suffering) are capped. Permanent physical impairment damages are not capped.
The cap was originally set at $250,000, by the Colorado legislature, during a time when the insurance industry's push for tort reform was all the rage in Colorado. Since then, the cap has been adjusted for inflation, and at the time of this case, in 2019, the cap was $468,010. The statute left a back door for judges to double the amount of cap money available if the court “finds justification by clear and convincing evidence …” Had the judge made such a finding in Pasano's case, the court could have awarded up to $936,030.
The court, however, did not make such a finding. Instead, the trial judge remarked that “an increase in damages beyond the statutory cap … is reserved for exceptional circumstances.” The trial court explained that Pisano did not suffer from reduced life expectancy; she is able to live on her own; she doesn't suffer from severe disfigurement, and she still has mobility. Each of these examples are from prior decisions in which trial courts did agree to raise the cap on noneconomic damages. The court apparently did not find Pisano's testimony and evidence regarding the permanent impacts on the quality of her life to be convincing.
Pisano argued that the trial court should have made its determination of whether to raise the caps based on whether the Plaintiff proved her case of noneconomic damages to the jury by clear and convincing evidence. The appellate court rejected this reading of the statute.
The statute, section 13-21-102.5(3)(a), C.R.S. states the relevant language as follows:
[i]n any civil action … in which damages for noneconomic loss or injury may be awarded, the total of such damages shall not exceed the sum of two hundred fifty thousand dollars, unless the court finds justification by clear and convincing evidence therefor. In no case shall the amount of noneconomic loss or injury damages exceed five hundred thousand dollars.
The appellate panel focused on the phrase “justification by clear and convincing evidence.” Citing Merriam-Webster's Dictionary, the reviewing court noted that “justification” is defined as an “acceptable reason for doing something.” Therefore, the appellate panel concluded, the trial court must find an acceptable reason, by clear and convincing evidence, to raise the cap on noneconomic damages.
The appellate court's reasoning seems to follow the language of the statute more than Pisano's argument. The panel noted that if courts were bound by merely deciding whether there was clear and convincing evidence presented to the jury to prove up the plaintiff's noneconomic damages, then courts would have no direction as to how far over the cap to go. For example, if the court has discretion to raise the cap up to two times the presumed cap limit of $468,010, how would a court decide whether to raise the cap by $25,000, $50,000, $200,000 or all the way up to the top at $936,030? Plaintiff's argument would make it an automatic doubling of the presumed cap if there was clear and convincing evidence to support the jury's verdict on noneconomic damages. The trial court's rejection of this approach, therefore, is understandable.
That statute, however, does not tell us what constitutes justification to exceed the cap. In such cases, courts will look to prior cases and/or just make it up. In Schwab v. Martino, No. 05-cv-01456, 2007 WL 4522714, at *5 (D. Colo. Dec. 17, 2007), the federal trial court discussed that justification might “refer to a finding that the Plaintiff's noneconomic injuries are unusually severe, that there is unusually detailed proof that the Plaintiff has suffered a monetary amount of damages that exceeds the cap, or that the Plaintiff has shown that the policy concerns underlying the cap are not appropriately applied in the particular situation.”
The appellate court discussed other factors a trial court might consider when deciding whether to raise the caps. For example, Wallbank v. Rothenberg, 140 P.3d 177, 179 (Colo. App. 2006), dealt with statutory caps under a provision of the Health Care Availability Act (“HCAA”). The court noted that the HCAA allows the trial court to exceed the statutory cap on a showing of good cause that the application of the cap would be unfair in a particular case. The reviewing panel in the instant case compared “justification” to “good cause” and concluded that both require a “legally sufficient reason.”
This is legal gobbledygook that means little more than it's the judge's discretion to decide what is legally sufficient reason and whether there is enough of it to exceed the presumptive cap. Based on the examples provided by the appellate panel, this is most likely to happen when it is obvious that a plaintiff has been grossly undercompensated for her injuries.
