When the HCAA Cap Is Lifted, Common-Law Damages Control: Jury Primacy Subject Only to Sufficiency Review and Remittitur

Case: BANNER HEALTH, d/b/a North Colorado Medical Center v. Chance GRESSER ...; and Erin Gresser ...
Court: Colorado Supreme Court (En Banc)
Citation: 579 P.3d 882 (2025 CO 60M)
Date: As Modified on Denial of Rehearing November 24, 2025

1. Introduction

This medical malpractice appeal required the Colorado Supreme Court to define what happens after a trial court finds that the statutory damages cap in the Health Care Availability Act (“HCAA”), §§ 13-64-101 to -503, C.R.S. (2025), should not apply. The plaintiffs, Chance and Erin Gresser, sued Banner Health for negligence during labor, delivery, and postpartum care, alleging severe and permanent neurologic and developmental injuries to their minor daughter, C.G., with lifelong care needs and reduced life expectancy.

A jury awarded approximately $27.65 million in economic damages. The central legal issue was not whether the court could exceed the HCAA cap (the trial court found “good cause” and “unfairness”), but rather: who determines the amount of damages once the cap is lifted—the judge under a discretionary “additional damages” regime, or the jury under common-law damages principles subject to the court’s traditional post-verdict controls.

Key Question Presented

After a court finds “good cause” and “unfairness” under § 13-64-302(1)(b), does the court (1) independently set the amount above the cap using a statutory standard, or (2) revert to common-law rules under which the jury’s amount governs, constrained only by sufficiency review and remittitur/new-trial doctrines?

2. Summary of the Opinion

The Colorado Supreme Court affirmed the court of appeals’ judgment but clarified the governing rule. The Court held:

  • Stage One (Gatekeeping): Under § 13-64-302(1)(b), the plaintiff bears the burden to show good cause and that applying the cap would be unfair. If that showing is made, the court may exceed the cap for additional economic damages.
  • Stage Two (Amount): Once the court determines the exception applies, the statute is silent on how to compute the amount above the cap; therefore, common law governs. This means the jury retains its authority to determine the amount of damages, subject only to (a) the court’s authority to review for sufficiency of the evidence and (b) its traditional remittitur/new-trial powers for excessive awards.

Applying that rule, the Court found no abuse of discretion in the trial court’s determination that the jury’s award was supported by the record and was not grossly and manifestly excessive or the product of passion or prejudice. The judgment for the full award (plus interest) was affirmed.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Common-law baseline: the jury’s province and limited judicial interference

  • Ochoa v. Vered, 212 P.3d 963, 972 (Colo. App. 2009): Cited for the proposition that, at common law, determining damages is “solely within the province of the jury.” This provided the starting point: absent a clear legislative override, damages amount is a jury function.
  • Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456, 462 (Colo. 2011), and Burns v. McGraw-Hill Broad. Co., Inc., 659 P.2d 1351, 1355–56 (Colo. 1983): These anchor the two principal mechanisms by which a court may disturb a jury’s damages—new trial when the award indicates passion/prejudice/corruption, and the broader principle that courts otherwise should not substitute their judgment for the jury’s.
  • Higgs v. Dist. Ct., 713 P.2d 840, 860–61 (Colo. 1985), quoting Hurd v. Am. Hoist & Derrick Co., 734 F.2d 495, 503 (10th Cir. 1984): Used to frame the “shock the judicial conscience” threshold and the high bar for inferring improper influence on the jury.
  • Marks v. Dist. Ct., 643 P.2d 741, 744 (Colo. 1982), and Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C, 95 P.3d 571, 582 (Colo. 2004): These support the remittitur mechanism and define remittitur as the court process of reducing a jury verdict. They mattered because the Supreme Court’s solution was to return to these common-law controls once the statutory cap is lifted.

B. Abrogation doctrine: statutes displace common law only with clear intent

  • Giampa-pa v. Am. Fam. Mut. Ins. Co., 64 P.3d 230, 237 (Colo. 2003): Reinforced that common-law principles apply unless the legislature abrogates them.
  • Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004): Provided the rule that abrogation must be express or by clear implication, and statutes in derogation of common law are strictly construed. This principle was pivotal because the HCAA’s exception is silent about how to set the post-cap amount; the Court treated that silence as insufficient to displace the jury’s common-law role.
  • Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244, 1248 (Colo. 1994): Supplied the methodology for “filling statutory gaps” by reference to common law when legislative intent is not clearly to the contrary.
  • Parrish v. United States, 605 U.S. 376, 383, 145 S.Ct. 1664 (2025), quoting Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991): These federal authorities were used to bolster the interpretive premise that legislatures act against a background of common-law adjudicatory principles presumed to apply absent an evident contrary purpose.
  • Argus Real Est., Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604, 611 (Colo. 2005), quoting Preston v. Dupont, 35 P.3d 433, 440 (Colo. 2001), and noting partial supersession recognized in Pringle v. Valdez, 171 P.3d 624, 631 (Colo. 2007): These cases reinforced the “no implied abrogation” principle and supported returning to common law where the statute is silent.

C. Interpreting § 13-64-302(1)(b): grammar, structure, and the two-stage framework

  • People v. Diaz, 2015 CO 28, ¶ 12, 347 P.3d 621, 624: Invoked to emphasize that courts do not add or subtract words from a statute.
  • Huffman v. City & Cnty. of Denver, 2020 COA 59, ¶ 16, 465 P.3d 108, 112: Central to the Court’s grammatical parsing—when a phrase is set off by commas it typically relates to the preceding phrase. This supported the conclusion that “upon good cause shown” modifies the court’s threshold determination (whether to exceed the cap), not the later “may award” amount determination.
  • Scholle v. Ehrichs, 2024 CO 22: Used in multiple ways: (1) as standard-of-review authority and (2) as a reference point acknowledging that the HCAA affords trial courts discretion to exceed the cap once good cause/unfairness is shown. The Supreme Court in Banner Health v. Gresser harmonized Scholle by distinguishing discretion to lift the cap from discretion to set the amount.
  • Sunahara v. State Farm Mut. Auto. Ins. Co., 2012 CO 30M, ¶ 12, 280 P.3d 649: Cited for de novo review of legal/statutory interpretation questions.
  • Miller v. Crested Butte, LLC, 2024 CO 30, ¶ 24, 549 P.3d 228, 234, quoting Elder v. Williams, 2020 CO 88, ¶ 18, 477 P.3d 694, 698: Provided the general ambiguity framework (a statute is ambiguous if reasonably susceptible to multiple interpretations). Though the Court ultimately relied heavily on structure/grammar and gap-filling, these cases framed its interpretive approach.

D. Burdens, “status quo,” and cap policy arguments

  • Wallbank v. Rothenberg, 140 P.3d 177, 180–81 (Colo. App. 2006): Cited on the burdens surrounding efforts to exceed the cap and the purpose of the cap to limit damages. Banner relied on this policy rationale; the Court agreed on the cap’s purpose but held the statute did not prescribe judge-driven recalculation after the cap is lifted.
  • Pressey ex rel. Pressey v. Child.'s Hosp. Colo., 2017 COA 28, ¶ 10, 488 P.3d 151, 155, overruled on other grounds by, Rudnicki v. Bianco, 2021 CO 80, ¶ 44, 501 P.3d 776, 785–86: Used for the “totality of the circumstances” framework in deciding good cause/unfairness. The Supreme Court treated this as the correct lens for stage one.
  • Atl. & Pac: Ins. Co. v: Barnes, 666 P.2d 163, 165 (Colo. App. 1983) (relying on Am. Ins. Co. v. Naylor, 101 Colo. 34, 70 P.2d 349, 352 (1937)): Cited by the Gressers for the proposition that the party seeking to change the status quo bears the burden of proof—relevant to the post-cap-lift posture if one treats the jury verdict as the operative baseline.
  • Husband v. Colo. Mountain Cellars, Inc., 867 P.2d 57, 60 (Colo. App. 1993): Quoted (via Averyt) for the appellate principle that a damages award stands if it “can be supported under any legitimate measure for damages,” underscoring deference once the common-law regime applies.

E. Ancillary concepts referenced

  • City of Aspen v. Burlingame Ranch II Condo. Owners Ass'n, Inc., 2024 CO 46, ¶ 38, 551 P.3d 655, 664 (quoting Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1264 (Colo. 2000)): Included to define “economic loss” generally; the HCAA exception permits only additional economic damages.
  • Gen. Elec. Co. v. Niemet, 866 P.2d 1361, 1365 (Colo. 1994): Referenced in legislative-history discussion as context for Colorado tort reform and the fairness/stability balance, supporting the Court’s reluctance to infer unexpressed procedural displacement of the jury.

3.2 Legal Reasoning: How the Court Reached the Rule

A. The Court’s central move: separating the “whether” from the “how much”

The Court read § 13-64-302(1)(b) as creating a two-stage process:

  • Condition (Stage One): “if, upon good cause shown, the court determines” (i) present value of economic damages exceeds the cap and (ii) application of the cap would be unfair.
  • Result (Stage Two): “the court may award in excess of the limitation” additional economic damages.

The interpretive dispute was whether “good cause shown” and “unfair” also supply a substantive standard for the amount of “additional” damages. Banner argued the language conferred broad judicial discretion over amount. The Court rejected that reading on grammatical/structural grounds (relying on Huffman v. City & Cnty. of Denver) and held the good-cause/unfairness requirements attach to the threshold decision to exceed the cap, not to a judicial re-assessment of the jury’s valuation once the exception applies.

B. Silence on the amount triggers common-law gap-filling

Having determined that the statute does not itself prescribe a method for calculating the post-cap amount, the Court applied Colorado’s abrogation doctrine: common law persists unless clearly displaced (Vigil v. Franklin; Giampa-pa v. Am. Fam. Mut. Ins. Co.).

The HCAA clearly displaces the jury’s damages authority up to the cap by creating a presumptive limitation, but it does not clearly displace the jury’s role once the court lifts the cap. With neither plain language nor legislative history demonstrating an intent to move the amount-determination from jury to judge in the exception context, the Court “fill[ed] the statutory gaps” using common law (Tivoli Ventures, Inc. v. Bumann), echoing the “background principles” approach articulated in Parrish v. United States and Astoria Fed. Sav. & Loan Ass'n v. Solimino.

C. The resulting rule: jury’s amount controls, with traditional checks

The Court’s holding is tightly framed: once the exception applies, the court does not embark on an open-ended discretion-based valuation exercise. Instead, the jury’s damages figure remains the operative amount, subject to:

  • Sufficiency-of-the-evidence review (the court may set aside or modify only where the record cannot support the award), and
  • Common-law excessive-award mechanisms: new trial for passion/prejudice/corruption (Averyt; Burns; Higgs), or remittitur for gross and manifest excess without improper motive (Higgs; Marks; Garhart).

D. Application to the facts

The trial court found (1) good cause and unfairness to exceed the cap, and then (2) that Banner did not show the award lacked evidentiary support or resulted from passion/prejudice, and also that it was not grossly and manifestly excessive. The Supreme Court held that this was the correct approach under the now-clarified rule and found no abuse of discretion in the trial court’s findings when reviewing the record in the light most favorable to the prevailing party (citing Averyt v. Wal-Mart Stores, Inc. and its quotation of Husband v. Colo. Mountain Cellars, Inc.).

3.3 Impact: What This Decision Changes (and What It Likely Doesn’t)

A. Clarification of the post-exception framework

The most significant doctrinal development is the Court’s clear instruction that lifting the HCAA cap does not convert the damages determination into a judicially-driven recalculation. Instead, it restores the common-law allocation of authority: juries set amounts; judges police outer bounds through sufficiency review and remittitur/new-trial tools.

B. Practical litigation consequences

  • Motion practice will bifurcate: Parties should expect two distinct post-verdict battles: (1) plaintiff’s motion to exceed the cap (good cause/unfairness), then (2) defendant’s traditional challenges to the verdict amount (sufficiency, remittitur, passion/prejudice).
  • Defendants’ “amount” arguments must be reframed: After the cap is lifted, a defendant cannot rely on a generalized statutory “fairness” standard to ask the judge to set a lower number. The defendant must meet the common-law standards for disturbing a verdict.
  • Trial courts’ role is constrained but not toothless: Courts retain real oversight via remittitur and new-trial doctrines, but those doctrines require a demanding showing (e.g., “grossly and manifestly excessive” or “shock the judicial conscience”).

C. Doctrinal coherence with tort-reform statutes

The Court’s approach tends toward interpretive conservatism in tort-reform contexts: caps and exceptions are enforced as written, but procedural shifts away from jury determination will not be inferred from silence. That stance may influence future disputes where statutory reforms introduce thresholds but do not specify post-threshold adjudicative mechanics.

D. Interaction with subsequent statutory amendments

The opinion notes that while the case was pending, the legislature amended the medical malpractice cap to a “greater of” formulation (including a reference to 125% of noneconomic damages limitations). The Court treated this as non-dispositive to the interpretive question presented. The holding is therefore best understood as a structural principle about how to handle the HCAA’s exception when triggered, not a numeric-cap-specific ruling.

4. Complex Concepts Simplified

  • HCAA damages cap: A statutory ceiling on the “total amount recoverable” in medical malpractice cases. Juries still compute damages without being told the cap, but courts ordinarily reduce the judgment to comply with the statutory maximum.
  • § 13-64-302(1)(b) “good cause” and “unfairness” exception: A statutory escape valve for plaintiffs seeking more than the cap, but limited to additional economic damages. The plaintiff must show (i) economic damages exceed the cap in present value and (ii) applying the cap would be unfair.
  • Present value: A discounted value today of money that will be needed in the future (e.g., future medical costs). The HCAA’s exception is keyed to whether the present value of economic damages exceeds the cap.
  • Sufficiency of the evidence review: A court’s inquiry into whether the trial record contains enough evidence to support the jury’s amount. It is not permission for the judge to reweigh conflicting testimony and pick a preferred number.
  • Remittitur: A court-ordered reduction of a jury’s damages award when it is “grossly and manifestly excessive” but not necessarily tainted by improper motives. If the plaintiff refuses, a new trial on damages may follow.
  • New trial for passion or prejudice: If the award indicates the jury was influenced by passion, prejudice, or corruption, the remedy is typically a new trial (and not merely a reduction).

5. Conclusion

Banner Health v. Gresser establishes a clear allocation-of-authority rule under the HCAA: the “good cause/unfairness” inquiry is a gatekeeping decision about whether the cap applies, and once the cap is lifted, the amount of damages is governed by common law. In that posture, the jury’s valuation controls unless the defendant satisfies the demanding standards for sufficiency reversal, remittitur, or a new trial based on passion/prejudice.

The decision’s broader significance lies in its interpretive method and its institutional choice: absent clear legislative direction, Colorado courts will not infer that tort-reform statutes silently transfer core damages-quantification authority from juries to judges. This makes the HCAA exception a mechanism for restoring (rather than replacing) common-law damages adjudication once the statutory threshold is met.