Once the HCAA Cap Is Lifted, Common Law Controls Amount: Jury Primacy Subject Only to Remittitur and Sufficiency Review

I. Introduction

Banner Health v. Gresser addresses a recurring tension in Colorado medical malpractice litigation: the relationship between the HCAA’s damages cap and the jury’s traditional (common-law) role in fixing damages. Chance and Erin Gresser sued Banner Health (doing business as North Colorado Medical Center) for medical malpractice arising from labor, delivery, and postpartum care that allegedly caused their daughter, C.G., catastrophic, permanent neurological and developmental injuries and a reduced life expectancy.

A jury awarded approximately $27.6 million in economic damages. Because § 13-64-302(1)(b) generally caps total recoverable damages in medical malpractice cases, the parties filed dueling post-trial motions: the Gressers sought to exceed the cap; Banner Health sought reduction to the cap. The trial court found “good cause” and “unfairness” to apply the cap and entered judgment for the full jury award plus pre- and post-filing interest (nearly $40 million). A division of the court of appeals affirmed in Gresser v. Banner Health, 2023 COA 108, 543 P.3d 1059.

The Colorado Supreme Court granted certiorari to decide what legal standard governs the amount of damages once a court has determined the statutory prerequisites to exceed the cap: does the trial judge have broad discretion to set “additional” damages above the cap, or does the jury’s number control subject only to traditional, limited judicial review?

II. Summary of the Opinion

The Court rejected Banner Health’s argument that the statutory phrase allowing a court to “may award in excess of the limitation … additional … damages” confers broad judicial discretion to set an amount above $1 million using a “good cause and fairness” lens. Instead, the Court read the statute as creating a two-stage process: (1) a threshold gatekeeping decision (good cause + unfairness) on whether the cap is lifted; and (2) a damages-amount determination that defaults to the common law because the statute is silent on methodology once the gate is opened.

Applying that framework, the Court found no abuse of discretion in the trial court’s conclusion that the record supported the jury’s award and that the award was not grossly and manifestly excessive. The judgment was affirmed.

III. Analysis

A. Precedents Cited

1. The common-law baseline: jury primacy and narrow judicial interference

• Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009): Cited for the general proposition that, at common law, determining the amount of damages is within the jury’s province.
• Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456 (Colo. 2011), and Burns v. McGraw-Hill Broad. Co., 659 P.2d 1351 (Colo. 1983): Cited for the limited ways courts may disturb a damages verdict (passion/prejudice leading to new trial; remittitur when grossly excessive without improper motive).
• Higgs v. Dist. Ct., 713 P.2d 840 (Colo. 1985) (quoting Hurd v. Am. Hoist & Derrick Co., 734 F.2d 495 (10th Cir. 1984)): Supplies the “shock the judicial conscience” formulation and underscores the “inviolate” character of a jury’s damages assessment absent extraordinary circumstances.
• Marks v. Dist. Ct., 643 P.2d 741 (Colo. 1982), and Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571 (Colo. 2004): Define and describe remittitur as the vehicle for reducing grossly excessive awards not shown to stem from passion or prejudice.

2. Statutes vs. common law: abrogation requires clarity

• Giampapa v. Am. Fam. Mut. Ins. Co., 64 P.3d 230 (Colo. 2003), and Vigil v. Franklin, 103 P.3d 322 (Colo. 2004): Reaffirm that common law remains unless expressly or clearly impliedly abrogated; statutes derogating from common law are strictly construed.
• Argus Real Est., Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604 (Colo. 2005), and Preston v. Dupont, 35 P.3d 433 (Colo. 2001), superseded in part by statute as recognized in Pringle v. Valdez, 171 P.3d 624 (Colo. 2007): Used to support the interpretive principle that, absent clear intent, statutes are read as operating against a common-law background.
• Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244 (Colo. 1994): Provides the “fill statutory gaps by referring to principles of common law” approach that becomes pivotal once the Court finds § 13-64-302(1)(b) silent on the “amount” methodology.
• Parrish v. United States, 605 U.S. 376 (2025), quoting Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991): Federal confirmation of the same background presumption—legislatures legislate against common-law adjudicatory principles unless a contrary purpose is evident.

3. Interpreting the HCAA and the gatekeeping standard to exceed the cap

• Scholle v. Ehrichs, 2024 CO 22, 546 P.3d 1170: Central to framing the “good cause/unfairness” gatekeeping inquiry and the standard of review (de novo for statutory interpretation). The Court distinguishes “whether to exceed” (governed by statute) from “amount once exceeded” (returns to common law).
• Wallbank v. Rothenberg, 140 P.3d 177 (Colo. App. 2006): Cited both for burden allocation (movant bears burden to exceed cap) and for the policy observation that a cap limits damages irrespective of the jury’s view—an argument Banner Health leveraged, but the Court confined to the threshold decision.
• Pressey ex rel. Pressey v. Child.'s Hosp. Colo., 2017 COA 28, 488 P.3d 151, overruled on other grounds by Rudnicki v. Bianco, 2021 CO 80, 501 P.3d 776: Supports the “totality of the circumstances” approach to the statutory good-cause/unfairness showing.
• Gresser v. Banner Health, 2023 COA 108, 543 P.3d 1059: The intermediate appellate decision that affirmed but reasoned that trial courts have “some discretion” to determine the amount above the cap. The Supreme Court affirms the result but clarifies the governing law: common law controls the amount once the cap is lifted.

4. Grammar and plain-language method

• People v. Diaz, 2015 CO 28, 347 P.3d 621: Reinforces that courts do not add or subtract statutory words; they interpret in grammatical context.
• Miller v. Crested Butte, LLC, 2024 CO 30, 549 P.3d 228 (quoting Elder v. Williams, 2020 CO 88, 477 P.3d 694): Defines ambiguity and guides when extra-textual aids may be used.
• Huffman v. City & Cnty. of Denver, 2020 COA 59, 465 P.3d 108: Used for the “comma-set-off phrase relates to what precedes it” rule, which drives the Court’s conclusion that “good cause shown” modifies the threshold (“if”) determination rather than the later damages-amount decision.

5. Ancillary citations on economic damages, evidence review, and tort-reform context

• City of Aspen v. Burlingame Ranch II Condo. Owners Ass'n, 2024 CO 46, 551 P.3d 655 (quoting Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256 (Colo. 2000)): Cited for defining economic loss generally.
• Sunahara v. State Farm Mut. Auto. Ins. Co., 2012 CO 30M, 280 P.3d 649: Cited for de novo review principles in statutory interpretation contexts.
• Husband v. Colo. Mountain Cellars, Inc., 867 P.2d 57 (Colo. App. 1993): Cited through Averyt v. Wal-Mart Stores, Inc. for the deferential appellate posture toward damages awards supported by any legitimate measure.
• Gen. Elec. Co. v. Niemet, 866 P.2d 1361 (Colo. 1994), People v. Sprinkle, 2021 CO 60, 489 P.3d 1242 (quoting Vensor v. People, 151 P.3d 1274 (Colo. 2007)), and Colo. Permanente Med. Grp., P.C. v. Evans, 926 P.2d 1218 (Colo. 1996): Provide historical context for tort-reform balancing—predictability/affordability versus fairness to severely injured plaintiffs—and support the Court’s view that the HCAA includes a “relief valve” for extraordinary cases.
• Atl. & Pac. Ins. Co. v. Barnes, 666 P.2d 163 (Colo. App. 1983) (relying on Am. Ins. Co. v. Naylor, 70 P.2d 349 (Colo. 1937)): Invoked for a general burden principle (party seeking to change the status quo bears burden), aligning with the Gressers’ argument that challengers must meet traditional burdens to reduce a jury verdict once the cap is lifted.
• Rudnicki v. Bianco, 2021 CO 80, 501 P.3d 776: Not reached on the merits here, but referenced regarding “chargemaster” billed amounts and the unresolved debate over billed versus paid medical expenses.

B. Legal Reasoning

1. The Court’s core move: separating the “gate” from the “amount”

The Court conceptualizes § 13-64-302(1)(b) as a two-stage mechanism:

• Stage 1 (statutory gatekeeping): The court decides whether the cap should be exceeded—requiring “good cause” and a finding that applying the limitation would be “unfair,” assessed under the “totality of the circumstances.”
• Stage 2 (amount of damages once the gate is opened): The statute authorizes an award above the cap but does not prescribe a method for selecting the “proper amount.” Because the statute is silent, the Court returns to the common law’s allocation of roles: the jury sets damages, and the court may alter only through established, narrow tools (sufficiency review and remittitur/new-trial standards).

2. Why grammar matters here

A pivotal interpretive step is grammatical: the Court uses Huffman v. City & Cnty. of Denver to reason that the comma-set-off phrase “upon good cause shown” attaches to what precedes it (“if”), and thus the “good cause” and “unfairness” requirements govern the conditional decision to exceed the cap, not an open-ended, continuing standard for the amount beyond the cap.

This reading lets the “relief valve” operate without converting the judge into a second factfinder on damages.

3. The gap-filling principle and the preservation of jury function

Having concluded the statute does not supply a damages-amount methodology after the cap is lifted, the Court applies Tivoli Ventures, Inc. v. Bumann and the common-law-background presumption (reinforced by Parrish v. United States and Astoria Fed. Sav. & Loan Ass'n v. Solimino). The Court emphasizes that abrogation of common law requires clear legislative intent (Giampapa v. Am. Fam. Mut. Ins. Co.; Vigil v. Franklin), and silence is not enough.

So, the legislature abrogated the common law only to this extent: it created a presumptive cap and installed a judicial gatekeeper for exceeding it. Once that gate is opened, the common-law jury role reasserts itself.

4. Reconciling the “may award … additional … damages” phrase

Banner Health’s textual argument focused on discretion implied by “may award” and “additional.” The Court answers by locating “may” in the gatekeeping logic: a court “may” award above the cap once it finds good cause and unfairness, but the statute does not say the court then freely chooses an amount by rebalancing fairness. In other words, “may” speaks to authorization to exceed, not to a new, judge-centered measure of damages.

5. Application to the case record

On the facts, the trial court found the cap should be exceeded and then tested the verdict against traditional safeguards: sufficiency of evidence and whether the award was grossly and manifestly excessive or the product of improper motives. Finding none, it entered the full verdict. The Supreme Court treated that approach as consistent with its clarified rule and affirmed.

C. Impact

1. Practical redistribution of decision-making power

The decision decisively cabins trial-court discretion over amount once the HCAA cap is lifted. Plaintiffs and defendants should expect:

• The real battleground is Stage 1: litigation over “good cause” and “unfairness” becomes even more consequential, because once the plaintiff passes that gate, the verdict amount is presumptively the judgment amount.
• Stage 2 becomes conventional: challenges to the magnitude of damages proceed through familiar mechanisms—sufficiency review, remittitur, or new trial standards—rather than a bespoke “fairness” recalculation by the judge.

2. Effects on settlement and trial strategy

• Settlement leverage shifts post-verdict: If the plaintiff can credibly establish Stage 1 criteria, the defense faces the possibility of paying the full verdict (plus interest), not merely a judge-selected increment above the cap.
• Greater emphasis on damages proof at trial: Because the jury’s number may ultimately become the judgment number after the cap is lifted, parties have increased incentive to build a meticulous evidentiary record on life care plans, future medical costs, wage loss, discounting/present value, and rebuttal expert testimony.
• Remittitur motions remain important but narrow: Defendants must target the high threshold for remittitur (“grossly and manifestly excessive”) or show passion/prejudice—rather than argue that a lower figure would be “fairer.”

3. Doctrinal clarity and appellate review

The Court provides a clean doctrinal template for future cases: de novo review for the statutory interpretation question, but deferential review of the trial court’s post-verdict determinations (e.g., sufficiency and remittitur determinations) consistent with Averyt v. Wal-Mart Stores, Inc..

4. Interaction with unresolved medical-expense valuation disputes

The Court expressly did not reach Banner Health’s argument about billed charges (including “chargemaster” rates) versus amounts paid. That unresolved issue—flagged by reference to Rudnicki v. Bianco—remains a potential future limiter or driver of high economic-damages verdicts, particularly for past medical expenses.

IV. Complex Concepts Simplified

• HCAA damages cap (§ 13-64-302(1)(b)): A statutory ceiling on total recoverable damages in medical malpractice cases. The jury still calculates damages without being told about the cap, but the judge typically reduces the judgment to the capped amount.
• “Good cause” and “unfairness” (the statutory exception): A “relief valve” that allows a court to lift the cap in extraordinary circumstances—here, catastrophic injury and massive, lifelong economic needs—when applying the cap would be unfair.
• “Present value” (§ 13-64-202(7)): The value today of money needed in the future, discounted because a dollar today can be invested and grow over time. In medical-malpractice cases, this often matters for future care costs spanning decades.
• Common-law jury authority on damages: Historically, juries decide the amount of damages, and judges generally cannot substitute their own view of a “better” number.
• Sufficiency-of-the-evidence review: A court checks whether there is enough evidence in the record to support the jury’s number. It is not a reweighing of credibility or a second-guessing of the jury’s factfinding.
• Remittitur: A limited judicial tool to reduce a damages award that is “grossly and manifestly excessive” even if not infected by passion or prejudice; the plaintiff can accept the reduced amount or proceed to a new trial on damages.
• Abrogation of common law: The idea that statutes can override judge-made common-law rules, but courts require clear legislative intent to conclude that the legislature meant to displace traditional principles.

V. Conclusion

Banner Health v. Gresser establishes a clarifying rule for Colorado medical malpractice damages under the HCAA: the statute governs the threshold decision to exceed the cap, but once that threshold is met, common law governs the amount. In practical terms, lifting the cap restores the jury’s central role in setting damages, leaving trial courts with their traditional, narrow oversight tools—sufficiency review and remittitur/new-trial standards—rather than a broad license to recalibrate damages based on fairness.

The decision strengthens the HCAA’s “relief valve” design: the cap provides predictability in ordinary cases, while truly exceptional economic-loss cases can escape the cap without converting the court into a substitute damages factfinder.