Pisano v. Manning

• Decision Date: 17 February 2022
• Docket Number: Court of Appeals No. 19CA2352
• Citation: 510 P.3d 572,2022 COA 22
• Parties: Catherine PISANO, Plaintiff-Appellant, v. Leann MANNING, Defendant-Appellee.
• Court: Colorado Court of Appeals

510 P.3d 572

2022 COA 22

Catherine PISANO, Plaintiff-Appellant,

v.Leann MANNING, Defendant-Appellee.

Court of Appeals No. 19CA2352

Colorado Court of Appeals, Division II.

Announced February 17, 2022

Fuicelli & Lee, P.C., R. Keith Fuicelli, Krislene Lorenz, Denver, Colorado; Moore Williams PLLC, Marie E. Williams, Golden, Colorado, for Plaintiff-Appellant

Spencer Fane, LLP, Evan B. Stephenson, Kayla L. Scroggins-Uptigrove, Denver, Colorado, for Defendant-Appellee

Wahlberg, Woodruff, Nimmo & Sloane LLP, Megan K. Matthews, Denver, Colorado, for Amicus Curiae Colorado Trial Lawyers Association

Ruebel & Quillen, LLC, Jeffrey Clay Ruebel, Westminster, Colorado, for Amici Curiae Colorado Civil Justice League, Colorado Defense Lawyers Association, National Association of Mutual Insurance Companies, and American Property Casualty Insurance Association

Opinion by JUDGE HARRIS

¶ 1 In this personal injury case, plaintiff, Catherine Pisano, appeals the trial court's order limiting the award of noneconomic damages owed by defendant, Leann Manning, in accordance with the statutory cap under section 13-21-102.5(3)(a), C.R.S. 2021.Pisano contends that, in denying her request to exceed the cap, the trial court erred by, first, applying an incorrect legal standard, and, then, by finding that the evidence did not satisfy that standard.

¶ 2We affirm.

I.Background

¶ 3 In April 2014, Manning rear-ended Pisano's car while Pisano was stopped in traffic on Interstate 70.Manning admitted fault for the accident.Thus, at trial, held in 2019, the issues were causation and damages.

¶ 4 Pisano sought economic, noneconomic, and physical impairment damages.She specifically argued that the noneconomic damages — her pain and suffering and loss of quality of life — arose from the physical impairments caused by the accident: headaches, neck pain, and cognitive problems.

¶ 5The parties contested the cause and severity of each of Pisano's physical impairments.

¶ 6 There did not seem to be a serious dispute that Pisano's headaches, which often turned into migraines, began after the accident.However, her pain journal suggested that the severity of her headaches had decreased over time.

¶ 7 The medical experts agreed that Pisano had sustained a neck injury from the accident.However, they disagreed whether the initial injury caused her later radicular pain, which started roughly three and a half years after the accident and for which she had surgery in December 2017.One of Pisano's experts opined that the accident caused degeneration of her discs, resulting in the radicular pain.He testified that Pisano "suffered a permanent lifelong injury to her neck as a result of th[e] crash," and that she would need regular ablation treatments to resolve facet pain for the rest of her life.¹The defense's medical expert, on the other hand, opined that the later radicular pain was unrelated to the accident and said that it was "preposterous" to think that Pisano would need ablation treatments for the next thirty years.He acknowledged that Pisano's prognosis was "not good," but he attributed that prognosis to multiple factors, including Pisano's sensitivity to medications, her low pain threshold, stress, and "a kind of passive approach to getting better."

¶ 8 With respect to cognitive impairment, Pisano's neuropsychology expert testified that post-accident, Pisano exhibited a steep decline in cognitive functioning as compared to her pre-accident baseline.One of the defense's experts, however, questioned the reliability of the cognitive functioning tests because Pisano had failed two performance validity tests and had scored so low on other tests that, if the tests were accurate, she had "perform[ed] at [the level of] someone ... with severe dementia."Another defense expert opined that it was unlikely Pisano had sustained a concussion during the accident, and he was skeptical of her cognitive complaints because, according to the expert, those complaints did not match up with her general day-to-day level of functioning.

¶ 9 At the time of trial, Pisano was the director of Head Start services at Catholic Charities, a position she had held since 2013, the year before the accident.In that role, she oversaw six sites to ensure teacher compliance with state and federal licensing regulations, ran training programs, helped to write grant proposals, and directly supervised four employees.

¶ 10 Pisano testified that she has had "a daily headache that since the accident has never gone away," though she acknowledged that by the time of trial, the pain was generally "at kind of a 1" on a scale of one to ten.To keep the headaches at bay, Pisano said that she made sure to get enough sleep, limited her exercise, and carefully controlled her stress to ensure that the day did not "get too overwhelming."At work, to accommodate her injuries, she had a standing desk and a special chair.She checked her email only twice a day and limited office meetings so that she did not get overwhelmed with interruptions.After the accident, she had to "work all the time" to complete her job duties.She testified that she was able to succeed at her job because her team was exceptionally supportive and would "jump in" to help when necessary.Pisano's annual performance reviews corroborated that she excelled at work.

¶ 11 Pisano testified that, although she"look[s] okay," the accident significantly changed the quality of her life.She was once an avid outdoorsperson, but after the accident she could no longer do physical activities.She does not drive her children to or attend their extracurricular activities anymore, so she has lost special time with them.Her favorite time of day used to be picking up her children, but now it is "when [she] can lay down because ... that's the only time [she does not] feel significant pain."She said that the chronic pain has worn her down and made her an "irritated, horrible person."She is not as friendly, easygoing, flexible, or fun.She avoids social situations because of her poor memory.She and her husband do not spend much time together because, by the end of the day, she just wants to retreat.She said that her house is not as joyful a place as it was before the accident.

¶ 12 During closing argument, Pisano's lawyer explained her theory of impairment and noneconomic damages, arguing that the physical impairments — the headaches, neck pain, and cognitive impairment — "are the things that cause the pain and suffering."She said that impairment damages would compensate Pisano for the loss of "all of those joyful things that she used to do."Counsel suggested an award of $300 a day for the headaches, neck pain, and cognitive impairment from the date of the accident to Pisano's expected date of death, for a total of approximately $4.5 million in impairment damages.And then counsel asked the jury to award one hundred dollars a day — or $1,548,000 — in noneconomic damages for Pisano's past and future pain and suffering.

¶ 13 The jury declined to award any damages for physical impairment but awarded $1,548,000 in noneconomic damages.

¶ 14 Manning filed a post-trial motion to limit the noneconomic damages award in accordance with the damages cap provided in section 13-21-102.5(3)(a).Under the statute, any award of noneconomic damages "shall not exceed" $468,010, unless the court"finds justification by clear and convincing evidence therefor," in which case the court may award up to $936,030.²§ 13-21-102.5(3)(a).

¶ 15 Pisano requested that the trial court exceed the statutory cap and award her the maximum amount of $936,030.³She argued that the evidence showed, clearly and convincingly, that her neck injuries were permanent; she would need "on-going procedures to manage her pain"; she lives with daily headaches and has to take medication and avoid noise, lights, and activity to prevent the headaches from developing into migraines; and her pain has interfered with her daily life.

¶ 16The trial court granted Manning's motion and denied Pisano's, reasoning that "an increase in damages beyond the statutory cap of $468,010.00 is reserved for exceptional circumstances."The trial court found that, unlike the plaintiffs in cases where courts had justified an award above the cap, Pisano "does not have a reduced life expectancy, she is able to live independently, she does not suffer from severe scarring, and she still has her mobility."As a result, the trial court was not persuaded "by clear and convincing evidence that Plaintiff's injuries have risen to the level of exceptional circumstances justifying exceeding the statutory cap."

II.The Trial Court's Order Limiting Damages Under Section13-21-102.5(3)(a)

¶ 17 Pisano contends that the court applied an incorrect legal standard in determining whether to exceed the statutory cap, by requiring a showing of "exceptional circumstances."And, she argues, even if the court applied the correct legal standard, it nonetheless abused its discretion by not finding exceptional circumstances in this case.We disagree with both contentions.

A.The Court Applied the Correct Legal Standard

1.Standard of Review and Principles of Interpretation

¶ 18We review questions of statutory interpretation de novo.Sperry v. Field , 205 P.3d 365, 367(Colo.2009).In interpreting a statute, our primary goals are to discern and give effect to the General Assembly's intent.Krol v. CF & I Steel , 2013 COA 32, ¶ 15, 307 P.3d 1116.We look first to the statutory language, giving the words and phrases used therein their plain and ordinary meanings.Id.If the statutory language is clear and unambiguous, we need not look beyond its plain terms and must apply the statute as written.Vigil v. Franklin , 103 P.3d 322, 328(Colo.2004).

¶ 19We review the trial court's application of section 13-21-102.5(3)(a) to the particular circumstances of a case for an abuse of discretion.Wallbank v. Rothenberg , 140 P.3d 177, 179(Colo. App.2006).

2.Analysis

¶ 20Section...