Gebert v. Sears, Roebuck & Co.

543 P.3d 409

2023 COA 107

Jacqueline GEBERT, Plaintiff-Appellee and Cross-Appellant,

v.SEARS, ROEBUCK & CO., Defendant-Appellant and Cross-Appellee.

Court of Appeals No. 22CA0887

Colorado Court of Appeals, Div. II.

Announced November 9, 2023

Arapahoe County District Court No. 19CV32833, Honorable Elizabeth Beebe Volz, Judge

Ridley, McGreevy & Winocur, P.C., Robert T. Fishman, Denver, Colorado; Burg Simpson Eldredge Hersh & Jardine, P.C., Stephen J. Burg, Jessica L. Breuer, David J.

Crough, Englewood, Colorado, for Plaintiff-Appellee and Cross-Appellant

Wheeler Trigg O’Donnell LLP, Meghan Frei Berglind, Frederick R. Yarger, Denver, Colorado, for Defendant-Appellant and Cross-Appellee

Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Lance T. Collins, Denver, Colorado, for Amici Curiae Colorado Defense Lawyers Association, Colorado Civil Justice League, and Coloradans Protecting Patient Access

Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Lance T. Collins, Denver, Colorado, for Amici Curiae American Property Casualty Insurance Association, American Tort Reform Association, Chamber of Commerce of the United States of America, Colorado Chamber of Commerce, Colorado Civil Justice League, Coloradans Protecting Patient Access, National Association of Mutual Insurance Companies

Dormer Harpring, Timothy M. Garvey, Denver, Colorado, for Amicus Curiae Colorado Trial Lawyers Association

Opinion by JUDGE FOX

¶ 1 In this personal injury action, plaintiff, Jacqueline Gebert, sued defendant, Sears, Roebuck & Co. (Sears), and its local home repair branch after being electrocuted by her stove, which a Sears repairperson had incorrectly wired. A jury awarded Gebert $2,700,000 in damages. Sears appeals the district court’s admission of evidence regarding its initial denial and later admission of negligence. Gebert cross-appeals the district court’s reduction of her noneconomic damages to the statutory cap in section 13-21-102.5(3)(a), C.R.S. 2023. Nonparties to the litigation filed three amicus briefs — one in support of Sears on the evidentiary issue and two taking opposing stances on the constitutionality of Colorado’s statutory cap on noneconomic damages.

¶ 2 As to the evidentiary issue, we conclude that the district court erred by admitting evidence of Sears’ denial and later admission of negligence because it was not relevant to any material issue at trial. Never- theless, any error in the admission of the evidence was harmless.

¶ 3 Although binding precedent has upheld the constitutionality of Colorado’s statutory cap on noneconomic damages, we consider, as a matter of first impression, whether the statutory cap infringes on the right to a civil jury trial as guaranteed by the Seventh Amendment to the United States Constitution. Because the Seventh Amendment has not been applied to the states, and because our state constitution does not guarantee the right to a civil jury trial, we conclude that the statutory damages cap is constitutional. Perceiving no abuse of the district court’s discretion in declining to exceed the cap, we conclude that the court properly capped Gebert’s noneconomic damages at the statutory limit. Therefore, we affirm.

I. Background

A. Factual History

¶ 4 In January 2019, Gebert hired Sears to repair a faulty burner on her electric stove. Sears dispatched a service technician to Gebert’s home who incorrectly wired the stove. The miswiring caused the metal parts of the cooking surface to become energized at the same voltage as a standard home outlet.

¶ 5 After the repair, Gebert placed a pan on the stove while simultaneously washing dishes. With wet silverware in one hand, Gebert used the other hand to pull the pan off the hot burner and was electrocuted. Gebert testified that she felt the current enter her body, causing her arm to jerk and release the silverware to the floor.

¶ 6 Gebert was taken to the emergency room, where she reported experiencing leg pain and fatigue. A doctor examined Gebert, ran several tests, and concluded that any electrical shock she had received did not injure her muscles, heart, or internal organs.

¶ 7 Gebert visited a primary care physician the next day, complaining of a tingling sensation in her fingers. In the months after her electrocution, Gebert received medical care from various specialists for symptoms ranging from abnormal sensations in her body, visual disturbances, and ringing ears, to anxiety and cognitive and memory deficits.

B. Procedural History

¶ 8 Gebert sued Sears for negligence and vicarious liability. In its answer, Sears denied that it was negligent in hiring, supervising, or training its repairperson. Regarding the vicarious liability claim; Sears admitted that the repairperson was a Sears employee acting within the course and scope of his employment but denied that he was negligent. At the conclusion of its answer, Sears requested costs, attorney fees, and interest without asserting a legal basis for the request.

¶ 9 In response to Gebert’s request for admissions (RFA), Sears again denied that its employee incorrectly wired the stove. The repairperson later denied during his deposition accessing the stove’s electrical box or rewiring any portion of the stove.

¶ 10 Six weeks before trial, Sears amended its RFA response. Sears admitted that the repairperson’s incorrect wiring energized the stove. But Sears continued to deny that the incorrect wiring caused any injury to Gebert. Gebert moved for sanctions under C.R.C.P. 37(c)(2) based on Sears’ delayed admission of negligence. The court did not rule on the motion until after trial.

¶ 11 The parties agreed that the only remaining issues for trial were causation and damages. Accordingly, the jury received stipulated facts from the parties, including that the repairperson incorrectly wired the stove, which energized the cooking surface. Gebert sought damages for noneconomic losses and for physical impairment.

¶ 12 At trial, the jury heard testimony from Gebert’s neurologist, neuropsychologist, physical therapist, and optometrist,¹ who each testified about their role in Gebert’s treatment. After eliminating other potential diagnoses, Gebert’s neurologist diagnosed her with a mild traumatic brain injury (TBI) caused by electric shock. On cross-examination, Sears impeached the neurologist with his own statement that, despite "best efforts and extensive testing, there has been a gen- eral paucity of objective findings" to corroborate the diagnosis. Gebert’s neuropsychologist diagnosed her with post-traumatic stress disorder and a mild neurocognitive disorder resulting from TBI. Gebert’s physical therapist testified that she initially treated Gebert for balance problems, but that Gebert’s treatment plan evolved to include treatment for neck, shoulder, and hip pain, as well as sensitivity to touch, light, and sound. Gebert was ultimately diagnosed with a hypersensitive sympathetic nervous system. The optometrist’s testimony established that Gebert had visual impairment in her left eye that significantly improved after seven months of treatment.

¶ 13 After a five-day trial, the jury found that Gebert was injured because of Sears’ negligence. The jury returned a $2,000,000 verdict for Gebert’s noneconomic damages and a $700,000 verdict for physical impairment.

¶ 14 Sears moved the district court to reduce Gebert’s noneconomic damages to the then-applicable statutory limit ($468,010). § 13-21-102.5(3)(a). The district court granted the motion and reduced Gebert’s noneconomic damages to the statutory cap. The court also denied Sears’ motion for a new trial or remittitur and Gebert’s motion for sanctions based on Sears’ delayed admission of negligence.

¶ 15 We first address, Sears’ challenge to the district court’s ruling allowing evidence of Sears’ denial and later admission of negligence. Then we address Gebert’s argument that the court erred by capping her noneconomic damages, at the statutory limit.

II. Admission of RFA Evidence

¶ 16 Sears challenges the district court’s admission of evidence that Sears initially denied negligence in response to the first RFA but later amended its RFA response to admit negligence. Sears claims that its denial and later admission were irrelevant to the issues remaining at trial: causation and damages. We agree but conclude that any error was harmless.

A. Additional Background

¶ 17 Before jury selection, Sears’ counsel made a motion in limine questioning Gebert’s subpoena of Bryan Kerns, a Sears representative. Sears argued that, given its stipulation to liability, Kerns’ testimony was irrelevant to any remaining issue at trial. Gebert responded with two purposes for calling Kerns: (1) to "review" Sears’ credibility as to the inconsistent factual positions it had taken and (2) to discuss "the dangers of electric injury."

¶ 18 Regarding the first purpose, the district court replied,

I’ve seen this many times where a defendant in a personal injury accident or incident denies that they were negligent and then as the case proceeds they admit that they are negligent and counsel wants the jury to hear that at one point in time they denied it, and now they’ve admitted it. I don’t know — personally, I don’t know that that’s all that important to anybody, including the jury, but it’s your case. So, if you want to tell the jury that [Sears] denied that they were negligent, but now has admitted it … you can make that argument if you want to.

After briefly discussing Kerns’ ability to testify remotely, the court continued:

[A]nd we’ll deal with relevance issues while he’s on the stand. So, what I caution you, [plaintiff’s counsel], is that … I will allow you to ask a question or two about … "when did Sears Roebuck admit negligence?" But we’re not going to spend a lot of time on it. And we’re not going to go into every single incident where [Sears], at some point in this case, denied that [it was] … negligent. So, focus on other issues that you raised about if he gave testimony

...