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.

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. 
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 

¶ 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. 
2 

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 
3 

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 
4 

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 
5 

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. 
6 

¶ 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. 
7 

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 
8 

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 
9 

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 
10 

[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 
11 

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 
12 

 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. 
13 

¶ 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 
14 

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 
15 

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. 
16 

¶ 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.