April 22, 2019

Colorado Court of Appeals: Whole Person Impairment Rating Relevant in Non-Workers’ Comp Personal Injury Case

The Colorado Court of Appeals issued its opinion in Herrera v. Lerma on Thursday, September 20, 2018.

Subsequent Accident Jury InstructionPersonal InjuryNegligenceEvidence RelevancyVoir Dire.

Defendant’s truck hit plaintiff’s car from behind as she slowed for traffic. A week later plaintiff was diagnosed with neck strain. The following year, plaintiff was involved in a second car accident in which she hit a car from behind. She testified that the second accident did not injure her.

A year later, plaintiff sought additional medical treatment for her neck and lower back. She sued defendant for negligence, claiming damages of $38,356.46. She was awarded $1,980.81 by a jury in economic damages and zero on her claims of physical impairment and noneconomic damages.

On appeal, plaintiff argued it was error to instruct the jury to consider whether the second accident worsened any injuries, damages, or losses caused by the first accident because defendant hadn’t presented any evidence supporting such an instruction. Here, neither party presented evidence that plaintiff suffered any injury or aggravation of an existing injury because of the second accident, so the evidence was insufficient to justify instructing the jury about the second accident and the trial court abused its discretion. Further, but for the trial court’s improper instruction, the jury might have reached a different verdict.

Plaintiff also argued that the trial court erred by excluding her expert’s testimony about her 15% permanent whole body impairment rating. Before trial, defendant requested that the court exclude testimony about plaintiff’s impairment rating. While it allowed testimony that plaintiff suffered an impairment, the court excluded testimony about the impairment rating as irrelevant under CRE 401 and prejudicial under CRE 403. The court of appeals could not discern any reason that the percentage rating of the impairment would not be relevant, and found reasons why it would be relevant. The court similarly found no support for the trial court’s belief that such testimony would be unfairly prejudicial, confusing, or misleading. The trial court abused its discretion by excluding the testimony.

Plaintiff finally contended that it was error for the trial court to prevent her counsel from asking prospective jurors during voir dire whether they had an interest in defendant’s insurance carrier. Counsel was entitled to ask the insurance question during voir dire to determine the biases and prejudices of the prospective jurors, so the trial court abused its discretion.

The judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

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