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the award for the sufficiency of the evidence. In this case, therefore, the supreme
court affirms the trial court’s entry of judgment for the full amount of the jury
award, plus pre- and post-filing interest. It also affirms the judgment of the court
of appeals.

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2025 CO 60M
Supreme Court Case No. 23SC959
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 22CA1502
Petitioner:
Banner Health, d/b/a North Colorado Medical Center,
v.
Respondents:
Chance Gresser, individually and as parent, natural guardian, next of friend and
on behalf of his daughter, C.G.; and Erin Gresser, individually and as parent,
natural guardian, next of friend and on behalf of her daughter, C.G.
Judgment Affirmed
en banc
October 20, 2025
Opinion modified, and as modified, petition for rehearing DENIED. EN BANC.
JUSTICE HART did not participate in the modifications of the opinion or the
petition for rehearing.
November 24, 2025
Attorneys for Petitioner:
Mauro Lilling Naparty LLP
Richard J. Montes
Woodbury, New York

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Hall Booth Smith, P.C.
Elizabeth C. Moran
Rodrigo Lugo
Greenwood Village, Colorado
Attorneys for Respondents:
Bachus & Schanker, LLC
Darin L. Schanker
J. Howard Thigpen
Denver, Colorado
Barrios Wool LLC
Zachary Wool
New Orleans, Louisiana
Attorneys for Amicus Curiae American Association for Justice:
5280 Appellate Group, a division of The Paul Wilkinson Law Firm LLC
Nelson Boyle
Denver, Colorado
Attorneys for Amicus Curiae Coloradans Protecting Patient Access:
Womble Bond Dickinson (US) LLP
Kendra N. Beckwith
Denver, Colorado
Attorneys for Amicus Curiae Colorado Defense Lawyers’ Association:
Childs McCune Michalek LLC
Jordan L. Lipp
Corinne Jozwick
Denver, Colorado
Attorneys for Amici Curiae Colorado Medical Society and American Medical
Association:
Shook, Hardy & Bacon LLP
Daniel E. Rohner
Denver, Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
Wahlberg, Woodruff, Nimmo & Sloane, LLP
Megan K. Matthews

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Karman J. Reed
Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE
MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE GABRIEL, JUSTICE HART,
JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

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JUSTICE HOOD delivered the Opinion of the Court.
¶1 In this medical malpractice case, Chance and Erin Gresser, on behalf of their
minor daughter, C.G., seek to recover the full amount of damages awarded by the
jury, which exceeds the $1 million cap imposed by the Health Care Availability
Act (“HCAA”), §§ 13-64-101 to -503, C.R.S. (2025). The trial court found good
cause to exceed the cap and concluded that imposing the cap would be unfair. The
court entered judgment for the full amount of the jury award, plus pre- and post-
filing interest, which totaled nearly $40 million. Banner Health, d/b/a North
Colorado Medical Center, appealed from the judgment, and a division of the court
of appeals affirmed. Gresser v. Banner Health, 2023 COA 108, ¶ 6, 543 P.3d 1059,
1067.
¶2 We granted Banner Health’s petition for certiorari review and now affirm
the judgment of the court of appeals. We hold that once a court has determined,
under section 13-64-302(1)(b), C.R.S. (2025) (“subsection 302(1)(b)”), that the
plaintiff has established good cause to exceed the HCAA’s damages cap and that
imposing the cap would be unfair, the court’s subsequent determination as to the
proper amount of damages is governed by common law; meaning, under
subsection 302(1)(b)’s exception, the jury retains its authority to determine the
amount of damages, subject only to the court’s remittitur authority and its
authority to review the award for the sufficiency of the evidence.

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I. Facts and Procedural History
¶3 The Gressers sued Banner Health for medical malpractice. They alleged that
Banner Health and its staff’s negligence during labor, delivery, and postpartum
care caused C.G. significant injuries; including, “severe permanent neurological
injuries, developmental delays, a seizure disorder, communication delays,
physical impairment, and intermediate cerebral palsy.” It is undisputed that C.G.
will need medical care for the rest of her life and that her life expectancy is
significantly reduced because of these injuries.
¶4 A jury found Banner Health negligent, and it awarded the Gressers
$27,647,274.23 in economic damages:
• $2,517,274.23 for past medical and other health care expenses;
• $23,930,000 for future medical and other health care expenses from 2022
through 2075; and
• $1,200,000 for lost wages from 2038 through 2070.
¶5 Because the HCAA generally limits medical malpractice damages to
$1 million, see § 13-64-302(1)(b), the Gressers moved the court to exceed that
statutory cap and receive the full jury award. The same day, Banner Health filed
a motion to reduce the jury award to comply with the statutory cap.
¶6 The trial court found, based on the totality of the circumstances, that there
was good cause to exceed the cap and that imposing the cap would be unfair. It
then noted, however, that the HCAA didn’t authorize the court to substitute its

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judgment for that of the jury’s regarding the amount of damages if the jury’s
award was supported by the record. Instead, the trial court believed it had only
“a binary decision”: enter an award for $1 million (the statutory limit) or “enter a
judgment in the amount of damages awarded by the jury.”
¶7 The trial court then found that Banner Health had failed to show that the
jury’s award was unsupported by the evidence or that the jury was improperly
motivated by passion or prejudice. “To the contrary,” the court found, “the jury’s
award of damages in this case reflects a careful and close examination and analysis
of all the conflicting evidence related to the amount, duration, and severity of
[C.G.’s] injuries and losses.” The court further concluded that the jury’s award
wasn’t grossly and manifestly excessive and that it would be improper for the
court “to reweigh the evidence and adjust the damages awarded by the jury based
on a reassessment of the evidence admitted at trial.” The trial court then granted
the Gressers’ motion; denied Banner Health’s motion; and entered judgment for
the full jury award, plus pre- and post-filing interest: $39,845,196.83.
¶8 A division of the court of appeals affirmed the trial court’s damages award,
albeit based on different reasoning. Gresser, ¶ 6, 543 P.3d at 1067. The division
disagreed with the trial court that, once a court determines it should exceed the
cap, the court is limited to a binary choice as to the amount of damages. Instead,
the division held that a trial court, after making the necessary findings to exceed

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the cap, has some discretion to determine the amount of damages. Id. at ¶¶ 5–6,
543 P.3d at 1067; see also Scholle v. Ehrichs, 2024 CO 22, ¶ 7, 546 P.3d 1170, 1174
(“[T]he HCAA affords a trial court broad discretion to award damages in excess
of that limit if the plaintiff shows good cause that imposing the cap would be
unfair.”). Because the trial court had engaged in the appropriate analysis before
adopting the jury’s damages calculation, the division still affirmed the Gressers’
damages award. Gresser, ¶ 6, 543 P.3d at 1067.
¶9 We then granted Banner Health’s petition for certiorari review.1
II. Analysis
¶10 We begin with the applicable standard of review and a reminder of our
canons of statutory interpretation. We then discuss the jury’s common-law
authority to determine damages and consider how and to what extent the
legislature’s enactment of the HCAA modified that authority.
A. Standards of Review and Statutory Interpretation
¶11 The issue here presents legal questions: whether the division correctly
interpreted the HCAA and whether the division applied the correct legal standard
1 We granted certiorari to review the following issue:
Whether the court of appeals erred in concluding that a trial court is
limited to reviewing damages under a remittitur standard if the court
finds grounds to exceed the damages cap set forth in section
13-64-302(1)(b), C.R.S. (2023).

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in reviewing the damages award. Therefore, our review is de novo. See Scholle,
¶ 22, 546 P.3d at 1176; Sunahara v. State Farm Mut. Auto. Ins. Co., 2012 CO 30M,
¶ 12, 280 P.3d 649, 653.
¶12 When interpreting statutes, our primary goal is to discern and effectuate the
legislature’s intent. Scholle, ¶ 22, 546 P.3d at 1177. To do so, we begin with the
plain language of the statute, giving words and phrases their ordinary meanings
and reading the statutory scheme as a whole to give sensible and harmonious
effect to all of its parts. Id. We also read the words and phrases in context and
construe them according to the rules of grammar and common usage, neither
adding nor subtracting words from the statute. People v. Diaz, 2015 CO 28, ¶ 12,
347 P.3d 621, 624. If the language is clear and unambiguous, we apply the statute
as written. Scholle, ¶ 22, 546 P.3d at 1177.
¶13 If, however, the statute is ambiguous, we may consider other interpretive
aids; including, the legislative history, the purpose of the statute, and the
consequences of a particular construction. § 2-4-203, C.R.S. (2025); see also Miller v.
Crested Butte, LLC, 2024 CO 30, ¶ 24, 549 P.3d 228, 234 (“A statute is ambiguous
when it is reasonably susceptible of multiple interpretations.” (quoting Elder v.
Williams, 2020 CO 88, ¶ 18, 477 P.3d 694, 698)).

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B. Damages at Common Law
¶14 At common law, determining the amount of damages is solely within the
province of the jury. Ochoa v. Vered, 212 P.3d 963, 972 (Colo. App. 2009). Courts
can always, of course, review the sufficiency of the evidence in support of an
award, but may otherwise disturb a jury’s verdict in only two limited ways.
Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456, 462 (Colo. 2011); Burns v. McGraw-Hill
Broad. Co., 659 P.2d 1351, 1355–56 (Colo. 1983).
¶15 First, if, upon either party’s motion for a new trial, the court determines that
the award is “so excessive as to indicate that the jury acted out of passion,
prejudice, or corruption,” the court must order a new trial on all issues. Averyt,
265 P.3d at 462; see also Burns, 659 P.2d at 1356. But “absent an award so excessive
or inadequate as to shock the judicial conscience and to raise an irresistible inference
that passion, prejudice, corruption or other improper cause invaded the trial, the
jury’s determination of the fact is considered inviolate.” Higgs v. Dist. Ct., 713 P.2d
840, 860–61 (Colo. 1985) (emphasis added) (quoting Hurd v. Am. Hoist & Derrick
Co., 734 F.2d 495, 503 (10th Cir. 1984)).
¶16 Second, if the court determines that the jury’s award is grossly and
manifestly excessive, but not the result of bias, passion, or prejudice, “the court
may order a remittitur and alternatively authorize a new trial on damages alone if
the plaintiff refuses to accept the remittitur.” Id. at 861; see also Marks v. Dist. Ct.,

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643 P.2d 741, 744 (Colo. 1982). “A remittitur is ‘[t]he process by which a court
reduces or proposes to reduce the damages awarded in a jury verdict.’” Garhart
ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571, 582 (Colo. 2004) (alteration
in original) (quoting Remittitur, Black’s Law Dictionary (7th ed. 1999)).
¶17 Colorado embraces common law, § 2-4-211, C.R.S. (2025), and unless
abrogated by the legislature, common-law principles still apply to damages
awards. Giampapa v. Am. Fam. Mut. Ins. Co., 64 P.3d 230, 237 (Colo. 2003). To
abrogate common law, the legislature must manifest its intent to do so expressly
or by clear implication, and we strictly construe statutes that derogate from
common law. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004).
¶18 The legislature partially abrogated common law when it enacted the HCAA
by replacing the jury’s authority to determine damages with a presumptive
damages cap.
C. The HCAA
1. The Damages Cap
¶19 The HCAA limits “[t]he total amount recoverable for all damages” in a
medical malpractice case to $1 million.2 § 13-64-302(1)(b). Enacting this limit was
2 While this case was pending, the legislature amended the damages cap. Ch. 325,
sec. 6, § 13-64-302(1)(b), 2024 Colo. Sess. Laws 2170, 2176; see also Ch. 325, sec. 4,
§ 13-21-203(1), 2024 Colo. Sess. Laws 2170, 2173–75. The statute now provides that
[t]he total amount recoverable for all damages [in a medical
malpractice case] shall not exceed the greater of one million

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an “exercise of the General Assembly’s power to define and limit a cause of
action.” Garhart, 95 P.3d at 582 (explaining that if the legislature establishes a
statutory cause of action, it may also prescribe reasonable limits on the amount of
damages recoverable under that statute). So, under the HCAA, a jury calculates
the amount of damages without being instructed on the cap, but the court
presumptively limits the award to $1 million if the jury’s calculation exceeds that
amount. § 13-64-302(1)(b).
¶20 In defining this cause of action and its limits, however, the legislature also
enacted an exception under which a plaintiff may challenge the imposition of the
$1 million cap.
2. The Exception
¶21 Subsection 302(1)(b) provides that
if, upon good cause shown, the court determines that the present
value of past and future economic damages would exceed such
limitation and that the application of such limitation would be unfair,
the court may award in excess of the limitation the present value of
additional past and future economic damages only.
dollars . . . or one hundred twenty-five percent of the noneconomic
damages limitations set forth in section 13-21-203(1)(b) in effect at the
time the acts or omissions occurred, present value per patient.
§ 13-64-302(1)(b); see also § 13-21-203(1)(b), C.R.S. (2025). For ease of reference, and
because it doesn’t affect the outcome, we nonetheless refer to the cap as the
“$1 million cap” in this opinion.

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See also § 13-64-202(7), C.R.S. (2025) (defining “[p]resent value” as “the amount as
of a date certain of one or more sums payable in the future, discounted to the date
certain”); City of Aspen v. Burlingame Ranch II Condo. Owners Ass’n, 2024 CO 46,
¶ 38, 551 P.3d 655, 664 (“Economic loss is defined generally as damages other than
physical harm to persons or property.” (quoting Town of Alma v. AZCO Constr.,
Inc., 10 P.3d 1256, 1264 (Colo. 2000))). The exception requires courts to resolve two
questions: (1) whether to exceed the cap and, if so, (2) the amount of damages to
award.
¶22 The parties generally agree on the law applicable to the court’s first
determination: The party seeking to exceed the cap—the movant—bears the
burden of showing good cause and unfairness, Scholle, ¶ 30, 546 P.3d at 1178;
Wallbank v. Rothenberg, 140 P.3d 177, 180 (Colo. App. 2006), and the court must
consider the totality of the circumstances in determining whether the movant has
carried that burden, 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; see also Scholle, ¶ 30, 546 P.3d at 1178.
¶23 The parties disagree, however, on what law governs the court’s second
determination: how to determine the amount of damages beyond the $1 million
cap.

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¶24 Banner Health, supported by several amici, argues that the HCAA’s plain
language—which provides that a court “may award in excess of the limitation . . .
additional . . . damages”—indicates the legislature’s intent to grant trial courts
broad discretion to determine an amount of damages above the $1 million cap.
§ 13-64-302(1)(b) (emphases added). Accordingly, the starting point for the court’s
damages calculation is the $1 million cap, not the jury’s damages award. As
amicus Coloradans Protecting Patient Access explains, the HCAA’s cap replaces
the jury’s damages award, meaning that the jury award ceases to exist once the
cap is imposed. So, if the court decides to exceed the cap, there’s no award for the
court to reduce under its common-law remittitur authority. Instead, Banner
Health and its supporting amici argue, the court “may,” but need not, award
“additional” damages that exceed $1 million if the plaintiff can establish good
cause and fairness for the additional amount. To conclude otherwise—that is, to
have the court begin its damages calculation from the jury’s initial award—would
limit the court’s determination of amount to a mere sufficiency-of-the-evidence
review of the jury’s damages award. But because courts can always review a jury’s
damages award for the sufficiency of the evidence, this interpretation would
render the good cause and unfairness language of the exception meaningless.
After all, Banner Health notes, “the purpose of the cap [is] to limit damages

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regardless of whether the jury found them to be appropriate.” Wallbank, 140 P.3d
at 181.
¶25 Conversely, the Gressers, also supported by amici, argue that the good
cause and unfairness language governs only the court’s first determination of
whether to exceed the statutory cap and not its second determination of the
amount of damages. Rather, once a court decides to exceed the cap, the court can’t
substitute its judgment for that of the jury’s, and so, the jury’s award stands,
subject to common-law challenges. And under common law, the party
challenging the award as excessive bears the burden of showing that the jury’s
award should be reduced. See Atl. & Pac. Ins. Co. v. Barnes, 666 P.2d 163, 165 (Colo.
App. 1983) (relying on Am. Ins. Co. v. Naylor, 70 P.2d 349, 352 (Colo. 1937), to
support the proposition that “the party seeking to change the status quo has the
burden of proof”).
¶26 To resolve this conflict, we begin with the statute’s plain language. As a
reminder, here’s the relevant portion of the statute:
[I]f, upon good cause shown, the court determines that the present
value of past and future economic damages would exceed such
limitation and that the application of such limitation would be unfair,
the court may award in excess of the limitation the present value of
additional past and future economic damages only.
§ 13-64-302(1)(b) (emphasis added).

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¶27 The legislature structured the exception as a conditional, two-stage process.
We know this because of the legislature’s use of the word “if.” “If” typically
introduces a conditional requirement that must be met before a specified result
can occur. See Merriam-Webster, ‘If’ vs. ‘Whether’: Similar But Different, https://
www.merriam-webster.com/grammar/if-vs-whether-difference-usage [https://
perma.cc/T4XN-9FZJ] (explaining that the word “if” is used in a “conditional
sentence,” often but not necessarily coupled with “then,” to “state[] a relation
between cause and effect” or to “state[] what must occur before something else”).
The conditional requirement is typically offset from the rest of the sentence by
commas. Id. So, in subsection 302(1)(b), if the court determines it should exceed
the statutory cap, then it may award damages in excess of the cap.
¶28 Part of the interpretive conundrum in this case is the additional
clause—“upon good cause shown”—set off by commas, following “if.” Does that
clause apply to both determinations (the condition and the result) or only to the
first (the condition)?
¶29 According to the common rules of grammar, when a phrase is set off by
commas, it typically relates to the word or phrase that precedes it. Huffman v. City
& Cnty. of Denver, 2020 COA 59, ¶ 16, 465 P.3d 108, 112. So here, the phrase “the
court determines that the present value of past and future economic damages
would exceed such limitation and that the application of such limitation would be

16
unfair” relates to the preceding phrase, “upon good cause shown,” which relates
to the preceding word “if.” This structure means that the good-cause and
unfairness requirements apply only to the court’s first, conditional
determination—whether to exceed the $1 million cap—and not to the resulting
second determination—the amount of damages. § 13-64-302(1)(b); see also
Huffman, ¶ 16, 465 P.3d at 112.
¶30 Accordingly, we reject Banner Health’s invitation to interpret the statute as
imposing a “good cause and fairness” standard on the court’s determination of the
amount of damages beyond the statutory cap. But if good cause and fairness aren’t
the standard for determining a higher amount, how should a court proceed?
Because subsection 302(1)(b) is silent on this matter, we must look beyond the
statute’s plain language to answer this question. We focus on two points.
¶31 First, the legislature clearly abrogated the jury’s authority to determine
damages in the first instance by presumptively limiting damages to $1 million.
The legislature then made the court the gatekeeper on whether to exceed that
amount under the exception. But the statute is silent on how to calculate damages
under the exception. And this silence doesn’t manifest a clear intent to abrogate
the jury’s common-law authority to determine the amount of damages in this
context.

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¶32 Second, because the statute is silent on this issue, we look to the legislative
history for guidance. We know, from legislative discussions and from the statute’s
declaration, that the legislature enacted the HCAA “to assure the continued
availability of adequate health-care services to the people of this state by
containing the significantly increasing costs of malpractice insurance for medical
care institutions and licensed medical care professionals.” § 13-64-102(1), C.R.S.
(2025). The legislature also wanted “to protect patients from bad doctors.”
Hearings on S.B. 143 before the S. Comm. on Bus. Affs. & Lab., 56th Gen. Assemb.,
2d Reg. Sess. (Feb. 15, 1988) (statement of Sen. Strickland). Senator Strickland, one
of the bill’s sponsors, emphasized how important it was that “the provision of
fairness prevail throughout this bill.” Id.; see also Hearings on S.B. 143 before the
S. Comm. on Bus. Affs. & Lab., 56th Gen. Assemb., 2d Reg. Sess. (Feb. 18, 1988)
(“Feb. 18 Hearing”) (statement of Sen. Strickland).
¶33 While these broad declarations are informative, they don’t resolve how to
calculate damages under subsection 302(1)(b)’s good-cause exception. In fact, we
were unable to find any legislative history directly related to this issue. The
legislators did, however, discuss related statutory provisions, which sheds some
light on their intent. For example, they had numerous discussions about the
different roles of the jury and the court in determining damages under the
HCAA’s periodic payments provisions, § 13-64-205(1)(d), C.R.S. (2025),

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emphasizing that jurors are going to calculate present value during their
calculation of future payments, so the statute should provide that the jury, rather
than the court, performs that calculation. See Feb. 18 Hearing, supra (statements of
Sens. Fowler and Meiklejohn); see also Second Reading of S.B. 143 before the Senate,
56th Gen. Assemb., 2d Reg. Sess. (Feb. 25, 1988) (statement of Sen. Meiklejohn);
accord Feb. 18 Hearing, supra (statement of Sen. Meiklejohn). And on several
occasions, legislators and witnesses referenced the broad tort reform bills enacted
two years prior—where, like here, balancing fairness and stability was a central
concern, see Gen. Elec. Co. v. Niemet, 866 P.2d 1361, 1365 (Colo. 1994) (quoting
legislative discussions from enactment of the 1986 tort reform bills)—and drawing
special attention to the desire for consistency across these provisions, see Feb. 18
Hearing, supra (statement of Sen. Meiklejohn); Hearings on S.B. 143 before the H.
Comm. on Bus. Affs. & Lab., 56th Gen. Assemb., 2d Reg. Sess. (Mar. 10, 1988)
(statements of Alan Johnson); Second Reading of S.B. 143 before the House, 56th
Gen. Assemb., 2d Reg. Sess. (Apr. 5, 1988) (statements of Rep. Bowen).
¶34 Nonetheless, these discussions on related matters don’t clearly demonstrate
the legislature’s intent regarding who should calculate damages once the court
determines that the cap should be exceeded. Thus, because the statute is silent and
the legislative history doesn’t provide a clear expression of legislative intent to the
contrary, we “fill the statutory gaps by referring to principles of common law.”

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Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244, 1248 (Colo. 1994); see also Parrish v.
United States, 605 U.S. 376, 383 (2025) (“Congress legislates . . . ‘against a
background of common-law adjudicatory principles,’ and it expects those
principles to apply ‘except “when a statutory purpose to the contrary is evident.”’”
(quoting Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991))); Argus
Real Est., Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604, 611 (Colo. 2005)
(“‘[S]tatutes may not be interpreted to abrogate the common law unless such
abrogation was clearly the intent of the General Assembly.’ Absent such clear
intent, statutes must be deemed subject to the common law.” (alteration in
original) (citations omitted) (quoting Preston v. Dupont, 35 P.3d 433, 440 (Colo.
2001), superseded in part by statute as recognized in, Pringle v. Valdez, 171 P.3d 624,
631 (Colo. 2007))).
¶35 Therefore, we conclude that if a court determines that subsection 302(1)(b)’s
exception applies, it should defer to the jury’s common-law authority to determine
damages, subject to the court’s continuing authority to review the sufficiency of
the evidence and to entertain certain narrow excessive-amount challenges as
outlined above in Part II.B.
D. Application
¶36 Here, after determining that subsection 302(1)(b)’s exception applied, the
trial court reviewed the record and found that the evidence was sufficient to

20
support the jury’s damages award and that the award wasn’t grossly and
manifestly excessive. It then entered judgment for the jury’s full damages award.
We perceive no abuse of discretion in the trial court’s findings and therefore, like
the division, we affirm the trial court’s judgment.3 See Gresser, ¶¶ 20–22, 543 P.3d
at 1069–70; see also Averyt, 265 P.3d at 462 (explaining that an appellate court
reviewing a jury’s damages award must “view the record in the light most
favorable to the prevailing party and draw every inference deducible from the
evidence in favor of that party,” and the court may not overturn the award if it
“‘can be supported under any legitimate measure for damages’” (quoting
Husband v. Colo. Mountain Cellars, Inc., 867 P.2d 57, 60 (Colo. App. 1993))).
III. Conclusion
¶37 Therefore, we affirm the judgment of the court of appeals.
3 Based on our resolution of this issue, we need not address Banner Health’s
argument that the billed amounts, which are largely based on chargemaster rates,
don’t reflect the amount the Gressers actually paid for past medical expenses. See
Rudnicki, ¶ 68 n.3, 501 P.3d at 791 n.3 (Hart, J., dissenting) (defining a hospital’s
“chargemaster database” as “a comprehensive list of charges for every supply or
service a hospital might provide in serving a patient” that the hospital uses to
produce “a ‘bill’ for medical services”).

the award for the sufficiency of the evidence. In this case, therefore, the supreme
court affirms the trial court’s entry of judgment for the full amount of the jury
award, plus pre- and post-filing interest. It also affirms the judgment of the court
of appeals.

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2025 CO 60M
Supreme Court Case No. 23SC959
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 22CA1502
Petitioner:
Banner Health, d/b/a North Colorado Medical Center,
v.
Respondents:
Chance Gresser, individually and as parent, natural guardian, next of friend and
on behalf of his daughter, C.G.; and Erin Gresser, individually and as parent,
natural guardian, next of friend and on behalf of her daughter, C.G.
Judgment Affirmed
en banc
October 20, 2025
Modified Opinion. Marked revisions shown.
JUSTICE HART did not participate in the modifications of the opinion or the
petition for rehearing.
November 24, 2025
Attorneys for Petitioner:
Mauro Lilling Naparty LLP
Richard J. Montes
Woodbury, New York

2
Hall Booth Smith, P.C.
Elizabeth C. Moran
Rodrigo Lugo
Greenwood Village, Colorado
Attorneys for Respondents:
Bachus & Schanker, LLC
Darin L. Schanker
J. Howard Thigpen
Denver, Colorado
Barrios Wool LLC
Zachary Wool
New Orleans, Louisiana
Attorneys for Amicus Curiae American Association for Justice:
5280 Appellate Group, a division of The Paul Wilkinson Law Firm LLC
Nelson Boyle
Denver, Colorado
Attorneys for Amicus Curiae Coloradans Protecting Patient Access:
Womble Bond Dickinson (US) LLP
Kendra N. Beckwith
Denver, Colorado
Attorneys for Amicus Curiae Colorado Defense Lawyers’ Association:
Childs McCune Michalek LLC
Jordan L. Lipp
Corinne Jozwick
Denver, Colorado
Attorneys for Amici Curiae Colorado Medical Society and American Medical
Association:
Shook, Hardy & Bacon LLP
Daniel E. Rohner
Denver, Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
Wahlberg, Woodruff, Nimmo & Sloane, LLP
Megan K. Matthews

3
Karman J. Reed
Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE
MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE GABRIEL, JUSTICE HART,
JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

4
JUSTICE HOOD delivered the Opinion of the Court.
¶1 In this medical malpractice case, Chance and Erin Gresser, on behalf of their
minor daughter, C.G., seek to recover the full amount of damages awarded by the
jury, which exceeds the $1 million cap imposed by the Health Care Availability
Act (“HCAA”), §§ 13-64-101 to -503, C.R.S. (2025). The trial court found good
cause to exceed the cap and concluded that imposing the cap would be unfair. The
court entered judgment for the full amount of the jury award, plus pre- and post-
filing interest, which totaled nearly $40 million. Banner Health, d/b/a North
Colorado Medical Center, appealed from the judgment, and a division of the court
of appeals affirmed. Gresser v. Banner Health, 2023 COA 108, ¶ 6, 543 P.3d 1059,
1067.
¶2 We granted Banner Health’s petition for certiorari review and now affirm
the judgment of the court of appeals. We hold that once a court has determined,
under section 13-64-302(1)(b), C.R.S. (2025) (“subsection 302(1)(b)”), that the
plaintiff has established good cause to exceed the HCAA’s damages cap and that
imposing the cap would be unfair, the court’s subsequent determination as to the
proper amount of damages is governed by common law; meaning, under
subsection 302(1)(b)’s exception, the jury retains its authority to determine the
amount of damages, subject only to the court’s remittitur authority and its
authority to review the award for the sufficiency of the evidence.

5
I. Facts and Procedural History
¶3 The Gressers sued Banner Health for medical malpractice. They alleged that
Banner Health and its staff’s negligence during labor, delivery, and postpartum
care caused C.G. significant injuries; including, “severe permanent neurological
injuries, developmental delays, a seizure disorder, communication delays,
physical impairment, and intermediate cerebral palsy.” It is undisputed that C.G.
will need medical care for the rest of her life and that her life expectancy is
significantly reduced because of these injuries.
¶4 A jury found Banner Health negligent, and it awarded the Gressers
$27,647,274.23 in economic damages:
• $2,517,274.23 for past medical and other health care expenses;
• $23,930,000 for future medical and other health care expenses from 2022
through 2075; and
• $1,200,000 for lost wages from 2038 through 2070.
¶5 Because the HCAA generally limits medical malpractice damages to
$1 million, see § 13-64-302(1)(b), the Gressers moved the court to exceed that
statutory cap and receive the full jury award. The same day, Banner Health filed
a motion to reduce the jury award to comply with the statutory cap.
¶6 The trial court found, based on the totality of the circumstances, that there
was good cause to exceed the cap and that imposing the cap would be unfair. It
then noted, however, that the HCAA didn’t authorize the court to substitute its

6
judgment for that of the jury’s regarding the amount of damages if the jury’s
award was supported by the record. Instead, the trial court believed it had only
“a binary decision”: enter an award for $1 million (the statutory limit) or “enter a
judgment in the amount of damages awarded by the jury.”
¶7 The trial court then found that Banner Health had failed to show that the
jury’s award was unsupported by the evidence or that the jury was improperly
motivated by passion or prejudice. “To the contrary,” the court found, “the jury’s
award of damages in this case reflects a careful and close examination and analysis
of all the conflicting evidence related to the amount, duration, and severity of
[C.G.’s] injuries and losses.” The court further concluded that the jury’s award
wasn’t grossly and manifestly excessive and that it would be improper for the
court “to reweigh the evidence and adjust the damages awarded by the jury based
on a reassessment of the evidence admitted at trial.” The trial court then granted
the Gressers’ motion; denied Banner Health’s motion; and entered judgment for
the full jury award, plus pre- and post-filing interest: $39,845,196.83.
¶8 A division of the court of appeals affirmed the trial court’s damages award,
albeit based on different reasoning. Gresser, ¶ 6, 543 P.3d at 1067. The division
disagreed with the trial court that, once a court determines it should exceed the
cap, the court is limited to a binary choice as to the amount of damages. Instead,
the division held that a trial court, after making the necessary findings to exceed

7
the cap, has some discretion to determine the amount of damages. Id. at ¶¶ 5–6,
543 P.3d at 1067; see also Scholle v. Ehrichs, 2024 CO 22, ¶ 7, 546 P.3d 1170, 1174
(“[T]he HCAA affords a trial court broad discretion to award damages in excess
of that limit if the plaintiff shows good cause that imposing the cap would be
unfair.”). Because the trial court had engaged in the appropriate analysis before
adopting the jury’s damages calculation, the division still affirmed the Gressers’
damages award. Gresser, ¶ 6, 543 P.3d at 1067.
¶9 We then granted Banner Health’s petition for certiorari review.1
II. Analysis
¶10 We begin with the applicable standard of review and a reminder of our
canons of statutory interpretation. We then discuss the jury’s common-law
authority to determine damages and consider how and to what extent the
legislature’s enactment of the HCAA modified that authority.
A. Standards of Review and Statutory Interpretation
¶11 The issue here presents legal questions: whether the division correctly
interpreted the HCAA and whether the division applied the correct legal standard
1 We granted certiorari to review the following issue:
Whether the court of appeals erred in concluding that a trial court is
limited to reviewing damages under a remittitur standard if the court
finds grounds to exceed the damages cap set forth in section
13-64-302(1)(b), C.R.S. (2023).

8
in reviewing the damages award. Therefore, our review is de novo. See Scholle,
¶ 22, 546 P.3d at 1176; Sunahara v. State Farm Mut. Auto. Ins. Co., 2012 CO 30M,
¶ 12, 280 P.3d 649, 653.
¶12 When interpreting statutes, our primary goal is to discern and effectuate the
legislature’s intent. Scholle, ¶ 22, 546 P.3d at 1177. To do so, we begin with the
plain language of the statute, giving words and phrases their ordinary meanings
and reading the statutory scheme as a whole to give sensible and harmonious
effect to all of its parts. Id. We also read the words and phrases in context and
construe them according to the rules of grammar and common usage, neither
adding nor subtracting words from the statute. People v. Diaz, 2015 CO 28, ¶ 12,
347 P.3d 621, 624. If the language is clear and unambiguous, we apply the statute
as written. Scholle, ¶ 22, 546 P.3d at 1177.
¶13 If, however, the statute is ambiguous, we may consider other interpretive
aids; including, the legislative history, the purpose of the statute, and the
consequences of a particular construction. § 2-4-203, C.R.S. (2025); see also Miller v.
Crested Butte, LLC, 2024 CO 30, ¶ 24, 549 P.3d 228, 234 (“A statute is ambiguous
when it is reasonably susceptible of multiple interpretations.” (quoting Elder v.
Williams, 2020 CO 88, ¶ 18, 477 P.3d 694, 698)).

9
B. Damages at Common Law
¶14 At common law, determining the amount of damages is solely within the
province of the jury. Ochoa v. Vered, 212 P.3d 963, 972 (Colo. App. 2009). Courts
can always, of course, review the sufficiency of the evidence in support of an
award, but may otherwise disturb a jury’s verdict in only two limited ways.
Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456, 462 (Colo. 2011); Burns v. McGraw-Hill
Broad. Co., 659 P.2d 1351, 1355–56 (Colo. 1983).
¶15 First, if, upon either party’s motion for a new trial, the court determines that
the award is “so excessive as to indicate that the jury acted out of passion,
prejudice, or corruption,” the court must order a new trial on all issues. Averyt,
265 P.3d at 462; see also Burns, 659 P.2d at 1356. But “absent an award so excessive
or inadequate as to shock the judicial conscience and to raise an irresistible inference
that passion, prejudice, corruption or other improper cause invaded the trial, the
jury’s determination of the fact is considered inviolate.” Higgs v. Dist. Ct., 713 P.2d
840, 860–61 (Colo. 1985) (emphasis added) (quoting Hurd v. Am. Hoist & Derrick
Co., 734 F.2d 495, 503 (10th Cir. 1984)).
¶16 Second, if the court determines that the jury’s award is grossly and
manifestly excessive, but not the result of bias, passion, or prejudice, “the court
may order a remittitur and alternatively authorize a new trial on damages alone if
the plaintiff refuses to accept the remittitur.” Id. at 861; see also Marks v. Dist. Ct.,

10
643 P.2d 741, 744 (Colo. 1982). “A remittitur is ‘[t]he process by which a court
reduces or proposes to reduce the damages awarded in a jury verdict.’” Garhart
ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571, 582 (Colo. 2004) (alteration
in original) (quoting Remittitur, Black’s Law Dictionary (7th ed. 1999)).
¶17 Colorado embraces common law, § 2-4-211, C.R.S. (2025), and unless
abrogated by the legislature, common-law principles still apply to damages
awards. Giampapa v. Am. Fam. Mut. Ins. Co., 64 P.3d 230, 237 (Colo. 2003). To
abrogate common law, the legislature must manifest its intent to do so expressly
or by clear implication, and we strictly construe statutes that derogate from
common law. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004).
¶18 The legislature partially abrogated common law when it enacted the HCAA
by replacing the jury’s authority to determine damages with a presumptive
damages cap.
C. The HCAA
1. The Damages Cap
¶19 The HCAA limits “[t]he total amount recoverable for all damages” in a
medical malpractice case to $1 million.2 § 13-64-302(1)(b). Enacting this limit was
2 While this case was pending, the legislature amended the damages cap. Ch. 325,
sec. 6, § 13-64-302(1)(b), 2024 Colo. Sess. Laws 2170, 2176; see also Ch. 325, sec. 4,
§ 13-21-203(1), 2024 Colo. Sess. Laws 2170, 2173–75. The statute now provides that
[t]he total amount recoverable for all damages [in a medical
malpractice case] shall not exceed the greater of one million

11
an “exercise of the General Assembly’s power to define and limit a cause of
action.” Garhart, 95 P.3d at 582 (explaining that if the legislature establishes a
statutory cause of action, it may also prescribe reasonable limits on the amount of
damages recoverable under that statute). So, under the HCAA, a jury calculates
the amount of damages without being instructed on the cap, but the court
presumptively limits the award to $1 million if the jury’s calculation exceeds that
amount. § 13-64-302(1)(b).
¶20 In defining this cause of action and its limits, however, the legislature also
enacted an exception under which a plaintiff may challenge the imposition of the
$1 million cap.
2. The Exception
¶21 Subsection 302(1)(b) provides that
if, upon good cause shown, the court determines that the present
value of past and future economic damages would exceed such
limitation and that the application of such limitation would be unfair,
the court may award in excess of the limitation the present value of
additional past and future economic damages only.
dollars . . . or one hundred twenty-five percent of the noneconomic
damages limitations set forth in section 13-21-203(1)(b) in effect at the
time the acts or omissions occurred, present value per patient.
§ 13-64-302(1)(b); see also § 13-21-203(1)(b), C.R.S. (2025). For ease of reference, and
because it doesn’t affect the outcome, we nonetheless refer to the cap as the
“$1 million cap” in this opinion.

12
See also § 13-64-202(7), C.R.S. (2025) (defining “[p]resent value” as “the amount as
of a date certain of one or more sums payable in the future, discounted to the date
certain”); City of Aspen v. Burlingame Ranch II Condo. Owners Ass’n, 2024 CO 46,
¶ 38, 551 P.3d 655, 664 (“Economic loss is defined generally as damages other than
physical harm to persons or property.” (quoting Town of Alma v. AZCO Constr.,
Inc., 10 P.3d 1256, 1264 (Colo. 2000))). The exception requires courts to resolve two
questions: (1) whether to exceed the cap and, if so, (2) the amount of damages to
award.
¶22 The parties generally agree on the law applicable to the court’s first
determination: The party seeking to exceed the cap—the movant—bears the
burden of showing good cause and unfairness, Scholle, ¶ 30, 546 P.3d at 1178;
Wallbank v. Rothenberg, 140 P.3d 177, 180 (Colo. App. 2006), and the court must
consider the totality of the circumstances in determining whether the movant has
carried that burden, 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; see also Scholle, ¶ 30, 546 P.3d at 1178.
¶23 The parties disagree, however, on what law governs the court’s second
determination: how to determine the amount of damages beyond the $1 million
cap.

13
¶24 Banner Health, supported by several amici, argues that the HCAA’s plain
language—which provides that a court “may award in excess of the limitation . . .
additional . . . damages”—indicates the legislature’s intent to grant trial courts
broad discretion to determine an amount of damages above the $1 million cap.
§ 13-64-302(1)(b) (emphases added). Accordingly, the starting point for the court’s
damages calculation is the $1 million cap, not the jury’s damages award. As
amicus Coloradans Protecting Patient Access explains, the HCAA’s cap replaces
the jury’s damages award, meaning that the jury award ceases to exist once the
cap is imposed. So, if the court decides to exceed the cap, there’s no award for the
court to reduce under its common-law remittitur authority. Instead, Banner
Health and its supporting amici argue, the court “may,” but need not, award
“additional” damages that exceed $1 million if the plaintiff can establish good
cause and fairness for the additional amount. To conclude otherwise—that is, to
have the court begin its damages calculation from the jury’s initial award—would
limit the court’s determination of amount to a mere sufficiency-of-the-evidence
review of the jury’s damages award. But because courts can always review a jury’s
damages award for the sufficiency of the evidence, this interpretation would
render the good cause and unfairness language of the exception meaningless.
After all, Banner Health notes, “the purpose of the cap [is] to limit damages

14
regardless of whether the jury found them to be appropriate.” Wallbank, 140 P.3d
at 181.
¶25 Conversely, the Gressers, also supported by amici, argue that the good
cause and unfairness language governs only the court’s first determination of
whether to exceed the statutory cap and not its second determination of the
amount of damages. Rather, once a court decides to exceed the cap, the court can’t
substitute its judgment for that of the jury’s, and so, the jury’s award stands,
subject to common-law challenges. And under common law, the party
challenging the award as excessive bears the burden of showing that the jury’s
award should be reduced. See Atl. & Pac. Ins. Co. v. Barnes, 666 P.2d 163, 165 (Colo.
App. 1983) (relying on Am. Ins. Co. v. Naylor, 70 P.2d 349, 352 (Colo. 1937), to
support the proposition that “the party seeking to change the status quo has the
burden of proof”).
¶26 To resolve this conflict, we begin with the statute’s plain language. As a
reminder, here’s the relevant portion of the statute:
[I]f, upon good cause shown, the court determines that the present
value of past and future economic damages would exceed such
limitation and that the application of such limitation would be unfair,
the court may award in excess of the limitation the present value of
additional past and future economic damages only.
§ 13-64-302(1)(b) (emphasis added).

16
unfair” relates to the preceding phrase, “upon good cause shown,” which relates
to the preceding word “if.” This structure means that the good-cause and
unfairness requirements apply only to the court’s first, conditional
determination—whether to exceed the $1 million cap—and not to the resulting
second determination—the amount of damages. § 13-64-302(1)(b); see also
Huffman, ¶ 16, 465 P.3d at 112.
¶30 Accordingly, we reject Banner Health’s invitation to interpret the statute as
imposing a “good cause and fairness” standard on the court’s determination of the
amount of damages beyond the statutory cap. But if good cause and fairness aren’t
the standard for determining a higher amount, how should a court proceed?
Because subsection 302(1)(b)the statute is silent on this matter, we must look
beyond the statute’s plain language to answer this question. We focus on two
points.
¶31 First, the legislature clearly abrogated the jury’s authority to determine
damages in the first instance by presumptively limiting damages to $1 million.
The legislature then made the court the gatekeeper on whether to exceed that
amount under the exception. But the statute is silent on how to calculate damages
under the exception. And this silence doesn’t manifest a clear intent to abrogate
the jury’s common-law authority to determine the amount of damages in this
context. Instead, once the court opens the gate and authorizes a damage award

17
beyond the cap, we believe the legislature intended for the jury to retain its
common law authority to determine the appropriate amount of damages.
¶32 Second, because the statute is silent on this issue, we look to the legislative
history for guidance. We know, from legislative discussions and from the statute’s
declaration, thatSecond, the legislature enacted the HCAA “to assure the continued
availability of adequate health-care services to the people of this state by
containing the significantly increasing costs of malpractice insurance for medical
care institutions and licensed medical care professionals.” § 13-64-102(1), C.R.S.
(2025). The legislature also wanted “to protect patients from bad doctors.”
Hearings on S.B. 143 before When discussing amendments to the bill, including
the conditions by which a court would be able to exceed the cap, one senator
observed, however, that “unless there is some relief valve . . . , I think that there
are going to be occasions of terrible miscarriages of justice if there is just a cold-
hearted limit to the S. Comm. on Bus. Affs. & Lab., 56thamount of damages on
noneconomic losses.” Gen. Elec. Co. v. Niemet, 866 P.2d 1361, 1365 (Colo. 1994)
(quoting Second Reading of S.B. 67 before the Senate, 55th Gen. Assemb., 2d Reg.
Sess. (Feb. 15, 198825, 1986) (statement of Sen. Strickland). Meiklejohn)). And, as
bill sponsor Senator Strickland, one of the bill’s sponsors, emphasized how
important it was that “Hefley said, “We do want to do two or three things with
this [bill]. We want to bring some predictability back into the provision of fairness

18
prevail throughout this bill.”system and . . . we do not want to penalize legitimate
victims who have had extensive pain and suffering . . . .” Id.; see also Hearings on.
(quoting Second Reading of S.B. 14367 before the S. Comm. on Bus. Affs. & Lab.,
56thSenate, 55th Gen. Assemb., 2d Reg. Sess. (Feb. 18, 1988) (“Feb. 18 Hearing”)
(statement of Sen. Strickland).
¶33 While these broad declarations are informative, they don’t resolve how to
calculate damages under subsection 302(1)(b)’s good-cause exception. In fact, we
were unable to find any legislative history directly related to this issue. The
legislators did, however, discuss related statutory provisions, which sheds some
light on their 25, 1986)); see also People v. Sprinkle, 2021 CO 60, ¶ 22, 489 P.3d 1242,
1246 (“[T]he testimony of a bill’s sponsor concerning its purpose and anticipated
effect can be powerful evidence of legislative intent.” (quoting Vensor v. People, 151
P.3d 1274, 1279 (Colo. 2007))).. For example, they had numerous discussions about
the different roles of the jury and the court in determining damages under the
HCAA’s periodic payments provisions, § 13-64-205(1)(d), C.R.S. (2025),
emphasizing that jurors are going to calculate present value during their
calculation of future payments, so the statute should provide that the jury, rather
than the court, performs that calculation. See Feb. 18 Hearing, supra ( These
statements of Sens. Fowler and Meiklejohn); see also Second Reading of S.B. 143
before the Senate, 56th Gen. Assemb., 2d Reg. Sess. (Feb. 25, 1988) (statement of

19
Sen. Meiklejohn); accord Feb. 18 Hearing, supra (statement of Sen. Meiklejohn).
And on several occasions, legislators and witnesses referenced the broad tort
reform bills enacted two years prior—where, like here, balancing fairness and
stability was a central concern, indicate that “it was see Gen. Elec. Co. v. Niemet, 866
P.2d 1361, 1365 (Colo. 1994) (quoting legislative discussions from enactment of the
1986 tort reform bills)—and drawing special attention to the desire for consistency
across these provisions, see Feb. 18 Hearing, supra (statement of Sen. Meiklejohn);
Hearings on S.B. 143 before the H. Comm. on Bus. Affs. & Lab., 56th Gen. Assemb.,
2d Reg. Sess. (Mar. 10, 1988) (statements of Alan Johnson); Second Reading of S.B.
143 before the House, 56th Gen. Assemb., 2d Reg. Sess. (Apr. 5, 1988) (statements
of Rep. Bowen).
¶32 Nonetheless, these discussions on related matters don’t clearly demonstrate
the legislature’s intention to balance ‘the concern over insurance affordability and
predictability with concern for fairness to seriously injured people.’” Colo.
Permanente Med. Grp., P.C. v. intent regarding who should calculate damages once
the court determines that the cap should be exceeded. Thus, because the statute is
silent and the legislative history doesn’t provide a clear expression of legislative
intent to the contrary, we “fill the statutory gaps by referring to principles of
common law.” Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244, 1248 (Colo. 1994); see
also Parrish v. United States, 605 U.S. 376, 383 (2025) (“Congress legislates . . .

20
‘against a background of common-law adjudicatory principles,’ and it expects
those principlesEvans, 926 P.2d 1218, 1229 (Colo. 1996) (quoting Niemet, 866 P.2d
at 1365).
¶34 Therefore, we conclude that the legislature didn’t intend to apply ‘except
“when a statutory purpose to the contrary is evident.”’” (quoting Astoria Fed. Sav.
& Loan Ass’ncompletely v. Solimino, 501 U.S. 104, 108 (1991))); Argus Real Est., Inc.
v. E-470 Pub. Highway Auth., 109 P.3d 604, 611 (Colo. 2005) (“‘[S]tatutes may not be
interpreted to abrogate the common law unless such abrogation was clearly the
intent of the General Assembly.’ Absent such clear intent, statutes must be
deemed subject to the common law.” (alteration in original) (citations omitted)
(quoting Preston v. Dupont, 35 P.3d 433, 440 (Colo. 2001), superseded in part by statute
as recognized in, Pringle v. Valdez, 171 P.3d 624, 631 (Colo. jury’s common-law
authority to determine damages in medical malpractice cases. Instead,2007))).
¶33¶35 Therefore, we conclude that if a court determines that subsection 302(1)(b)’s
exception applies, it should defer to the jury’s common-law authority to determine
damages, subject to the court’s continuing authority to review the sufficiency of
the evidence and to entertain certain narrow excessive-amount challenges as
outlined above in Part II.B.

21
D. Application
¶34¶36 Here, after determining that subsection 302(1)(b)’s exception applied, the
trial court reviewed the record and found that the evidence was sufficient to
support the jury’s damages award and that the award wasn’t grossly and
manifestly excessive. It then entered judgment for the jury’s full damages award.
We perceive no abuse of discretion in the trial court’s findings and therefore, like
the division, we affirm the trial court’s judgment.3 See Gresser, ¶¶ 20–22, 543 P.3d
at 1069–70; see also Averyt, 265 P.3d at 462 (explaining that an appellate court
reviewing a jury’s damages award must “view the record in the light most
favorable to the prevailing party and draw every inference deducible from the
evidence in favor of that party,” and the court may not overturn the award if it
“‘can be supported under any legitimate measure for damages’” (quoting
Husband v. Colo. Mountain Cellars, Inc., 867 P.2d 57, 60 (Colo. App. 1993))).
III. Conclusion
¶35¶37 Therefore, we affirm the judgment of the court of appeals.
3 Based on our resolution of this issue, we need not address Banner Health’s
argument that the billed amounts, which are largely based on chargemaster rates,
don’t reflect the amount the Gressers actually paid for past medical expenses. See
Rudnicki, ¶ 68 n.3, 501 P.3d at 791 n.3 (Hart, J., dissenting) (defining a hospital’s
“chargemaster database” as “a comprehensive list of charges for every supply or
service a hospital might provide in serving a patient” that the hospital uses to
produce “a ‘bill’ for medical services”).

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE

October 20, 2025

AS MODIFIED November 24, 2025

2025 CO 60M

No. 23SC959, Banner Health v. Gresser-Medical Malpractice Damages-
HCAA-Statutory Damages Cap-Grossly and Manifestly Excessive
Damages-Jury's Common Law Authority to Determine Damages-
Remittitur - Statutory Interpretation.

In this medical malpractice case, the supreme court interprets the Health
Care Availability Act's ("HCAA") damages cap and considers how a trial court
should determine the appropriate amount of damages to award if the court
determines that it is appropriate to exceed the cap under the exception provided
by the legislature in section 13-64-302(1)(b), C.R.S. (2025) ("subsection 302(1)(b)").
The supreme court holds that once a trial court has determined that the plaintiff
has established good cause to exceed the HCAA's damages cap and that imposing
the cap would be unfair, the court's subsequent determination as to the proper
amount of damages is governed by common law; meaning, under subsection
302(1)(b)'s exception, the jury retains its authority to determine the amount of
damages, subject only to the court's remittitur authority and its authority to review

the award for the sufficiency of the evidence. In this case, therefore, the supreme
court affirms the trial court's entry of judgment for the full amount of the jury
award, plus pre- and post-filing interest. It also affirms the judgment of the court
of appeals.

# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2025 CO 60M

Supreme Court Case No. 23SC959
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 22CA1502

Petitioner:
Banner Health, d/b/a North Colorado Medical Center,

Respondents:
Chance Gresser, individually and as parent, natural guardian, next of friend and
on behalf of his daughter, C.G .; and Erin Gresser, individually and as parent,
natural guardian, next of friend and on behalf of her daughter, C.G.

Judgment Affirmed
en banc
October 20, 2025

Opinion modified, and as modified, petition for rehearing DENIED. EN BANC.
JUSTICE HART did not participate in the modifications of the opinion or the
petition for rehearing.

November 24, 2025

Attorneys for Petitioner:

Mauro Lilling Naparty LLP

Richard J. Montes

Woodbury, New York

Hall Booth Smith, P.C.
Elizabeth C. Moran
Rodrigo Lugo
Greenwood Village, Colorado

Attorneys for Respondents:
Bachus & Schanker, LLC
Darin L. Schanker
J. Howard Thigpen
Denver, Colorado

Barrios Wool LLC
Zachary Wool
New Orleans, Louisiana

Attorneys for Amicus Curiae American Association for Justice:
5280 Appellate Group, a division of The Paul Wilkinson Law Firm LLC
Nelson Boyle
Denver, Colorado

Attorneys for Amicus Curiae Coloradans Protecting Patient Access:
Womble Bond Dickinson (US) LLP
Kendra N. Beckwith
Denver, Colorado

Attorneys for Amicus Curiae Colorado Defense Lawyers' Association:
Childs McCune Michalek LLC
Jordan L. Lipp
Corinne Jozwick
Denver, Colorado

Attorneys for Amici Curiae Colorado Medical Society and American Medical
Association:

Shook, Hardy & Bacon LLP
Daniel E. Rohner
Denver, Colorado

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

Karman J. Reed
Denver, Colorado

JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE
MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE GABRIEL, JUSTICE HART,
JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE HOOD delivered the Opinion of the Court.

11 In this medical malpractice case, Chance and Erin Gresser, on behalf of their
minor daughter, C.G., seek to recover the full amount of damages awarded by the
jury, which exceeds the $1 million cap imposed by the Health Care Availability
Act ("HCAA"), §§ 13-64-101 to -503, C.R.S. (2025). The trial court found good
cause to exceed the cap and concluded that imposing the cap would be unfair. The
court entered judgment for the full amount of the jury award, plus pre- and post-
filing interest, which totaled nearly $40 million. Banner Health, d/b/a North
Colorado Medical Center, appealed from the judgment, and a division of the court
of appeals affirmed. Gresser v. Banner Health, 2023 COA 108, 1 6, 543 P.3d 1059,
1067.

12 We granted Banner Health's petition for certiorari review and now affirm
the judgment of the court of appeals. We hold that once a court has determined,
under section 13-64-302(1)(b), C.R.S. (2025) ("subsection 302(1)(b)"), that the
plaintiff has established good cause to exceed the HCAA's damages cap and that
imposing the cap would be unfair, the court's subsequent determination as to the
proper amount of damages is governed by common law; meaning, under
subsection 302(1)(b)'s exception, the jury retains its authority to determine the
amount of damages, subject only to the court's remittitur authority and its
authority to review the award for the sufficiency of the evidence.

## I. Facts and Procedural History

T3
The Gressers sued Banner Health for medical malpractice. They alleged that
Banner Health and its staff's negligence during labor, delivery, and postpartum
care caused C.G. significant injuries; including, "severe permanent neurological
injuries, developmental delays, a seizure disorder, communication delays,
physical impairment, and intermediate cerebral palsy." It is undisputed that C.G.
will need medical care for the rest of her life and that her life expectancy is
significantly reduced because of these injuries.

14 A jury found Banner Health negligent, and it awarded the Gressers
$27,647,274.23 in economic damages:

· $2,517,274.23 for past medical and other health care expenses;

· $23,930,000 for future medical and other health care expenses from 2022
through 2075; and

· $1,200,000 for lost wages from 2038 through 2070.

15
Because the HCAA generally limits medical malpractice damages to
$1 million, see § 13-64-302(1)(b), the Gressers moved the court to exceed that
statutory cap and receive the full jury award. The same day, Banner Health filed
a motion to reduce the jury award to comply with the statutory cap.

16
The trial court found, based on the totality of the circumstances, that there
was good cause to exceed the cap and that imposing the cap would be unfair. It
then noted, however, that the HCAA didn't authorize the court to substitute its

judgment for that of the jury's regarding the amount of damages if the jury's
award was supported by the record. Instead, the trial court believed it had only
"a binary decision": enter an award for $1 million (the statutory limit) or "enter a
judgment in the amount of damages awarded by the jury."

[7 The trial court then found that Banner Health had failed to show that the
jury's award was unsupported by the evidence or that the jury was improperly
motivated by passion or prejudice. "To the contrary," the court found, "the jury's
award of damages in this case reflects a careful and close examination and analysis
of all the conflicting evidence related to the amount, duration, and severity of
[C.G.'s] injuries and losses." The court further concluded that the jury's award
wasn't grossly and manifestly excessive and that it would be improper for the
court "to reweigh the evidence and adjust the damages awarded by the jury based
on a reassessment of the evidence admitted at trial." The trial court then granted
the Gressers' motion; denied Banner Health's motion; and entered judgment for
the full jury award, plus pre- and post-filing interest: $39,845,196.83.

18 A division of the court of appeals affirmed the trial court's damages award,
albeit based on different reasoning. Gresser, 1 6, 543 P.3d at 1067. The division
disagreed with the trial court that, once a court determines it should exceed the
cap, the court is limited to a binary choice as to the amount of damages. Instead,
the division held that a trial court, after making the necessary findings to exceed

the cap, has some discretion to determine the amount of damages. Id. at 11 5-6,
543 P.3d at 1067; see also Scholle v. Ehrichs, 2024 CO 22, 1 7, 546 P.3d 1170, 1174
("[T]he HCAA affords a trial court broad discretion to award damages in excess
of that limit if the plaintiff shows good cause that imposing the cap would be
unfair."). Because the trial court had engaged in the appropriate analysis before
adopting the jury's damages calculation, the division still affirmed the Gressers'
damages award. Gresser, 1 6, 543 P.3d at 1067.

19 We then granted Banner Health's petition for certiorari review.1

## II. Analysis

110 We begin with the applicable standard of review and a reminder of our
canons of statutory interpretation. We then discuss the jury's common-law
authority to determine damages and consider how and to what extent the
legislature's enactment of the HCAA modified that authority.

### A. Standards of Review and Statutory Interpretation

111 The issue here presents legal questions: whether the division correctly
interpreted the HCAA and whether the division applied the correct legal standard

1 We granted certiorari to review the following issue:

Whether the court of appeals erred in concluding that a trial court is
limited to reviewing damages under a remittitur standard if the court
finds grounds to exceed the damages cap set forth in section
13-64-302(1)(b), C.R.S. (2023).

in reviewing the damages award. Therefore, our review is de novo. See Scholle,
T 22, 546 P.3d at 1176; Sunahara v. State Farm Mut. Auto. Ins. Co., 2012 CO 30M,
T 12, 280 P.3d 649, 653.

112 When interpreting statutes, our primary goal is to discern and effectuate the
legislature's intent. Scholle, 1 22, 546 P.3d at 1177. To do so, we begin with the
plain language of the statute, giving words and phrases their ordinary meanings
and reading the statutory scheme as a whole to give sensible and harmonious
effect to all of its parts. Id. We also read the words and phrases in context and
construe them according to the rules of grammar and common usage, neither
adding nor subtracting words from the statute. People v. Diaz, 2015 CO 28, 1 12,
347 P.3d 621, 624. If the language is clear and unambiguous, we apply the statute
as written. Scholle, 1 22, 546 P.3d at 1177.

113 If, however, the statute is ambiguous, we may consider other interpretive
aids; including, the legislative history, the purpose of the statute, and the
consequences of a particular construction. § 2-4-203, C.R.S. (2025); see also Miller v.
Crested Butte, LLC, 2024 CO 30, 1 24, 549 P.3d 228, 234 ("A statute is ambiguous
when it is reasonably susceptible of multiple interpretations." (quoting Elder v.
Williams, 2020 CO 88, 1 18, 477 P.3d 694, 698)).

## B. Damages at Common Law

114 At common law, determining the amount of damages is solely within the
province of the jury. Ochoa v. Vered, 212 P.3d 963, 972 (Colo. App. 2009). Courts
can always, of course, review the sufficiency of the evidence in support of an
award, but may otherwise disturb a jury's verdict in only two limited ways.
Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456, 462 (Colo. 2011); Burns v. McGraw-Hill
Broad. Co., 659 P.2d 1351, 1355-56 (Colo. 1983).

115 First, if, upon either party's motion for a new trial, the court determines that
the award is "so excessive as to indicate that the jury acted out of passion,
prejudice, or corruption," the court must order a new trial on all issues. Averyt,
265 P.3d at 462; see also Burns, 659 P.2d at 1356. But "absent an award so excessive
or inadequate as to shock the judicial conscience and to raise an irresistible inference
that passion, prejudice, corruption or other improper cause invaded the trial, the
jury's determination of the fact is considered inviolate." Higgs v. Dist. Ct., 713 P.2d
840, 860-61 (Colo. 1985) (emphasis added) (quoting Hurd v. Am. Hoist & Derrick
Co., 734 F.2d 495, 503 (10th Cir. 1984)).

116 Second, if the court determines that the jury's award is grossly and
manifestly excessive, but not the result of bias, passion, or prejudice, "the court
may order a remittitur and alternatively authorize a new trial on damages alone if
the plaintiff refuses to accept the remittitur." Id. at 861; see also Marks v. Dist. Ct.,

643 P.2d 741, 744 (Colo. 1982). "A remittitur is '[t]he process by which a court
reduces or proposes to reduce the damages awarded in a jury verdict."" Garhart
ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571, 582 (Colo. 2004) (alteration
in original) (quoting Remittitur, Black's Law Dictionary (7th ed. 1999)).

117 Colorado embraces common law, § 2-4-211, C.R.S. (2025), and unless
abrogated by the legislature, common-law principles still apply to damages
awards. Giampapa v. Am. Fam. Mut. Ins. Co., 64 P.3d 230, 237 (Colo. 2003). To
abrogate common law, the legislature must manifest its intent to do so expressly
or by clear implication, and we strictly construe statutes that derogate from
common law. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004).

118 The legislature partially abrogated common law when it enacted the HCAA
by replacing the jury's authority to determine damages with a presumptive
damages cap.

## C. The HCAA

### 1. The Damages Cap

119 The HCAA limits "[t]he total amount recoverable for all damages" in a
medical malpractice case to $1 million.2 § 13-64-302(1)(b). Enacting this limit was

2 While this case was pending, the legislature amended the damages cap. Ch. 325,
sec. 6, § 13-64-302(1)(b), 2024 Colo. Sess. Laws 2170, 2176; see also Ch. 325, sec. 4,
§ 13-21-203(1), 2024 Colo. Sess. Laws 2170, 2173-75. The statute now provides that

[t]he total amount recoverable for all damages [in a medical
malpractice case] shall not exceed the greater of one million

an "exercise of the General Assembly's power to define and limit a cause of
action." Garhart, 95 P.3d at 582 (explaining that if the legislature establishes a
statutory cause of action, it may also prescribe reasonable limits on the amount of
damages recoverable under that statute). So, under the HCAA, a jury calculates
the amount of damages without being instructed on the cap, but the court
presumptively limits the award to $1 million if the jury's calculation exceeds that
amount. § 13-64-302(1)(b).

120 In defining this cause of action and its limits, however, the legislature also
enacted an exception under which a plaintiff may challenge the imposition of the
$1 million cap.

### 2. The Exception

121
Subsection 302(1)(b) provides that

if, upon good cause shown, the court determines that the present
value of past and future economic damages would exceed such
limitation and that the application of such limitation would be unfair,
the court may award in excess of the limitation the present value of
additional past and future economic damages only.

dollars ... or one hundred twenty-five percent of the noneconomic
damages limitations set forth in section 13-21-203(1)(b) in effect at the
time the acts or omissions occurred, present value per patient.

§ 13-64-302(1)(b); see also § 13-21-203(1)(b), C.R.S. (2025). For ease of reference, and
because it doesn't affect the outcome, we nonetheless refer to the cap as the
"$1 million cap" in this opinion.

See also § 13-64-202(7), C.R.S. (2025) (defining "[p]resent value" as "the amount as
of a date certain of one or more sums payable in the future, discounted to the date
certain"); City of Aspen v. Burlingame Ranch II Condo. Owners Ass'n, 2024 CO 46,
1 38, 551 P.3d 655, 664 ("Economic loss is defined generally as damages other than
physical harm to persons or property." (quoting Town of Alma v. AZCO Constr.,
Inc., 10 P.3d 1256, 1264 (Colo. 2000))). The exception requires courts to resolve two
questions: (1) whether to exceed the cap and, if so, (2) the amount of damages to
award.

122 The parties generally agree on the law applicable to the court's first
determination: The party seeking to exceed the cap-the movant-bears the
burden of showing good cause and unfairness, Scholle, 1 30, 546 P.3d at 1178;
Wallbank v. Rothenberg, 140 P.3d 177, 180 (Colo. App. 2006), and the court must
consider the totality of the circumstances in determining whether the movant has
carried that burden, Pressey ex rel. Pressey v. Child.'s Hosp. Colo., 2017 COA 28, 1 10,
488 P.3d 151, 155, overruled on other grounds by, Rudnicki v. Bianco, 2021 CO 80, 1 44,
501 P.3d 776, 785-86; see also Scholle, 1 30, 546 P.3d at 1178.

123 The parties disagree, however, on what law governs the court's second
determination: how to determine the amount of damages beyond the $1 million
cap.

124 Banner Health, supported by several amici, argues that the HCAA's plain
language- which provides that a court "may award in excess of the limitation . . .
additional . .. damages" -indicates the legislature's intent to grant trial courts
broad discretion to determine an amount of damages above the $1 million cap.
§ 13-64-302(1)(b) (emphases added). Accordingly, the starting point for the court's
damages calculation is the $1 million cap, not the jury's damages award. As
amicus Coloradans Protecting Patient Access explains, the HCAA's cap replaces
the jury's damages award, meaning that the jury award ceases to exist once the
cap is imposed. So, if the court decides to exceed the cap, there's no award for the
court to reduce under its common-law remittitur authority. Instead, Banner
Health and its supporting amici argue, the court "may," but need not, award
"additional" damages that exceed $1 million if the plaintiff can establish good
cause and fairness for the additional amount. To conclude otherwise -that is, to
have the court begin its damages calculation from the jury's initial award - would
limit the court's determination of amount to a mere sufficiency-of-the-evidence
review of the jury's damages award. But because courts can always review a jury's
damages award for the sufficiency of the evidence, this interpretation would
render the good cause and unfairness language of the exception meaningless.
After all, Banner Health notes, "the purpose of the cap [is] to limit damages

regardless of whether the jury found them to be appropriate." Wallbank, 140 P.3d
at 181.

125 Conversely, the Gressers, also supported by amici, argue that the good
cause and unfairness language governs only the court's first determination of
whether to exceed the statutory cap and not its second determination of the
amount of damages. Rather, once a court decides to exceed the cap, the court can't
substitute its judgment for that of the jury's, and so, the jury's award stands,
subject to common-law challenges. And under common law, the party
challenging the award as excessive bears the burden of showing that the jury's
award should be reduced. See Atl. & Pac. Ins. Co. v. Barnes, 666 P.2d 163, 165 (Colo.
App. 1983) (relying on Am. Ins. Co. v. Naylor, 70 P.2d 349, 352 (Colo. 1937), to
support the proposition that "the party seeking to change the status quo has the
burden of proof").

126 To resolve this conflict, we begin with the statute's plain language. As a
reminder, here's the relevant portion of the statute:

[Ilf, upon good cause shown, the court determines that the present
value of past and future economic damages would exceed such
limitation and that the application of such limitation would be unfair,
the court may award in excess of the limitation the present value of
additional past and future economic damages only.

§ 13-64-302(1)(b) (emphasis added).

127 The legislature structured the exception as a conditional, two-stage process.
We know this because of the legislature's use of the word "if." "If" typically
introduces a conditional requirement that must be met before a specified result
can occur. See Merriam-Webster, 'If' vs. 'Whether': Similar But Different, https://
www.merriam-webster.com/grammar/if-vs-whether-difference-usage [https://
perma.cc/T4XN-9FZJ] (explaining that the word "if" is used in a "conditional
sentence," often but not necessarily coupled with "then," to "state[] a relation
between cause and effect" or to "state[] what must occur before something else").
The conditional requirement is typically offset from the rest of the sentence by
commas. Id. So, in subsection 302(1)(b), if the court determines it should exceed
the statutory cap, then it may award damages in excess of the cap.

128 Part of the interpretive conundrum in this case is the additional
clause-"upon good cause shown" - set off by commas, following "if." Does that
clause apply to both determinations (the condition and the result) or only to the
first (the condition)?

129 According to the common rules of grammar, when a phrase is set off by
commas, it typically relates to the word or phrase that precedes it. Huffman v. City
& Cnty. of Denver, 2020 COA 59, 1 16, 465 P.3d 108, 112. So here, the phrase "the
court determines that the present value of past and future economic damages
would exceed such limitation and that the application of such limitation would be

unfair" relates to the preceding phrase, "upon good cause shown," which relates
to the preceding word "if." This structure means that the good-cause and
unfairness requirements apply only to the court's first, conditional
determination - whether to exceed the $1 million cap-and not to the resulting
second determination-the amount of damages. § 13-64-302(1)(b); see also
Huffman, 1 16, 465 P.3d at 112.

130 Accordingly, we reject Banner Health's invitation to interpret the statute as
imposing a "good cause and fairness" standard on the court's determination of the
amount of damages beyond the statutory cap. But if good cause and fairness aren't
the standard for determining a higher amount, how should a court proceed?
Because subsection 302(1)(b) is silent on this matter, we must look beyond the
statute's plain language to answer this question. We focus on two points.

131 First, the legislature clearly abrogated the jury's authority to determine
damages in the first instance by presumptively limiting damages to $1 million.
The legislature then made the court the gatekeeper on whether to exceed that
amount under the exception. But the statute is silent on how to calculate damages
under the exception. And this silence doesn't manifest a clear intent to abrogate
the jury's common-law authority to determine the amount of damages in this
context.

T32
Second, because the statute is silent on this issue, we look to the legislative
history for guidance. We know, from legislative discussions and from the statute's
declaration, that the legislature enacted the HCAA "to assure the continued
availability of adequate health-care services to the people of this state by
containing the significantly increasing costs of malpractice insurance for medical
care institutions and licensed medical care professionals." § 13-64-102(1), C.R.S.
(2025). The legislature also wanted "to protect patients from bad doctors."
Hearings on S.B. 143 before the S. Comm. on Bus. Affs. & Lab., 56th Gen. Assemb.,
2d Reg. Sess. (Feb. 15, 1988) (statement of Sen. Strickland). Senator Strickland, one
of the bill's sponsors, emphasized how important it was that "the provision of
fairness prevail throughout this bill." Id .; see also Hearings on S.B. 143 before the
S. Comm. on Bus. Affs. & Lab., 56th Gen. Assemb., 2d Reg. Sess. (Feb. 18, 1988)
("Feb. 18 Hearing") (statement of Sen. Strickland).

emphasizing that jurors are going to calculate present value during their
calculation of future payments, so the statute should provide that the jury, rather
than the court, performs that calculation. See Feb. 18 Hearing, supra (statements of
Sens. Fowler and Meiklejohn); see also Second Reading of S.B. 143 before the Senate,
56th Gen. Assemb., 2d Reg. Sess. (Feb. 25, 1988) (statement of Sen. Meiklejohn);
accord Feb. 18 Hearing, supra (statement of Sen. Meiklejohn). And on several
occasions, legislators and witnesses referenced the broad tort reform bills enacted
two years prior - where, like here, balancing fairness and stability was a central
concern, see Gen. Elec. Co. v. Niemet, 866 P.2d 1361, 1365 (Colo. 1994) (quoting
legislative discussions from enactment of the 1986 tort reform bills) - and drawing
special attention to the desire for consistency across these provisions, see Feb. 18
Hearing, supra (statement of Sen. Meiklejohn); Hearings on S.B. 143 before the H.
Comm. on Bus. Affs. & Lab., 56th Gen. Assemb., 2d Reg. Sess. (Mar. 10, 1988)
(statements of Alan Johnson); Second Reading of S.B. 143 before the House, 56th
Gen. Assemb., 2d Reg. Sess. (Apr. 5, 1988) (statements of Rep. Bowen).

134 Nonetheless, these discussions on related matters don't clearly demonstrate
the legislature's intent regarding who should calculate damages once the court
determines that the cap should be exceeded. Thus, because the statute is silent and
the legislative history doesn't provide a clear expression of legislative intent to the
contrary, we "fill the statutory gaps by referring to principles of common law."

Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244, 1248 (Colo. 1994); see also Parrish v.
United States, 605 U.S. 376, 383 (2025) ("Congress legislates . .. 'against a
background of common-law adjudicatory principles,' and it expects those
principles to apply 'except "when a statutory purpose to the contrary is evident."""
(quoting Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991))); Argus
Real Est., Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604, 611 (Colo. 2005)
("[S]tatutes may not be interpreted to abrogate the common law unless such
abrogation was clearly the intent of the General Assembly.' Absent such clear
intent, statutes must be deemed subject to the common law." (alteration in
original) (citations omitted) (quoting Preston v. Dupont, 35 P.3d 433, 440 (Colo.
2001), superseded in part by statute as recognized in, Pringle v. Valdez, 171 P.3d 624,
631 (Colo. 2007))).

135 Therefore, we conclude that if a court determines that subsection 302(1)(b)'s
exception applies, it should defer to the jury's common-law authority to determine
damages, subject to the court's continuing authority to review the sufficiency of
the evidence and to entertain certain narrow excessive-amount challenges as
outlined above in Part II.B.

## D. Application

136 Here, after determining that subsection 302(1)(b)'s exception applied, the
trial court reviewed the record and found that the evidence was sufficient to

support the jury's damages award and that the award wasn't grossly and
manifestly excessive. It then entered judgment for the jury's full damages award.
We perceive no abuse of discretion in the trial court's findings and therefore, like
the division, we affirm the trial court's judgment.3 See Gresser, TT 20-22, 543 P.3d
at 1069-70; see also Averyt, 265 P.3d at 462 (explaining that an appellate court
reviewing a jury's damages award must "view the record in the light most
favorable to the prevailing party and draw every inference deducible from the
evidence in favor of that party," and the court may not overturn the award if it
"'can be supported under any legitimate measure for damages"" (quoting
Husband v. Colo. Mountain Cellars, Inc., 867 P.2d 57, 60 (Colo. App. 1993))).

## III. Conclusion

137
Therefore, we affirm the judgment of the court of appeals.

3 Based on our resolution of this issue, we need not address Banner Health's
argument that the billed amounts, which are largely based on chargemaster rates,
don't reflect the amount the Gressers actually paid for past medical expenses. See
Rudnicki, 1 68 n.3, 501 P.3d at 791 n.3 (Hart, J., dissenting) (defining a hospital's
"chargemaster database" as "a comprehensive list of charges for every supply or
service a hospital might provide in serving a patient" that the hospital uses to
produce "a 'bill' for medical services").

ADVANCE SHEET HEADNOTE

October 20, 2025

AS MODIFIED November 24, 2025

2025 CO 60M

## The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2025 CO 60M

Supreme Court Case No. 23SC959
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 22CA1502

Petitioner:
Banner Health, d/b/a North Colorado Medical Center,

Judgment Affirmed
en banc
October 20, 2025

Modified Opinion. Marked revisions shown.
JUSTICE HART did not participate in the modifications of the opinion or the
petition for rehearing.

November 24, 2025

Attorneys for Petitioner:

Mauro Lilling Naparty LLP

Richard J. Montes

Woodbury, New York

Hall Booth Smith, P.C.
Elizabeth C. Moran
Rodrigo Lugo
Greenwood Village, Colorado

Attorneys for Respondents:
Bachus & Schanker, LLC
Darin L. Schanker
J. Howard Thigpen
Denver, Colorado

Barrios Wool LLC
Zachary Wool
New Orleans, Louisiana

Attorneys for Amicus Curiae American Association for Justice:
5280 Appellate Group, a division of The Paul Wilkinson Law Firm LLC
Nelson Boyle
Denver, Colorado

Attorneys for Amicus Curiae Coloradans Protecting Patient Access:
Womble Bond Dickinson (US) LLP
Kendra N. Beckwith
Denver, Colorado

Attorneys for Amicus Curiae Colorado Defense Lawyers' Association:
Childs McCune Michalek LLC
Jordan L. Lipp
Corinne Jozwick
Denver, Colorado

Attorneys for Amici Curiae Colorado Medical Society and American Medical
Association:

Shook, Hardy & Bacon LLP
Daniel E. Rohner
Denver, Colorado

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

Karman J. Reed
Denver, Colorado

JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE
MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE GABRIEL, JUSTICE HART,
JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE HOOD delivered the Opinion of the Court.

### I. Facts and Procedural History

14 A jury found Banner Health negligent, and it awarded the Gressers
$27,647,274.23 in economic damages:

· $2,517,274.23 for past medical and other health care expenses;

· $23,930,000 for future medical and other health care expenses from 2022
through 2075; and

· $1,200,000 for lost wages from 2038 through 2070.

19 We then granted Banner Health's petition for certiorari review.1

### II. Analysis

#### A. Standards of Review and Statutory Interpretation

111 The issue here presents legal questions: whether the division correctly
interpreted the HCAA and whether the division applied the correct legal standard

1 We granted certiorari to review the following issue:

in reviewing the damages award. Therefore, our review is de novo. See Scholle,
T 22, 546 P.3d at 1176; Sunahara v. State Farm Mut. Auto. Ins. Co., 2012 CO 30M,
T 12, 280 P.3d 649, 653.

### B. Damages at Common Law

118 The legislature partially abrogated common law when it enacted the HCAA
by replacing the jury's authority to determine damages with a presumptive
damages cap.

### C. The HCAA

#### 1. The Damages Cap

119 The HCAA limits "[t]he total amount recoverable for all damages" in a
medical malpractice case to $1 million.2 § 13-64-302(1)(b). Enacting this limit was

[t]he total amount recoverable for all damages [in a medical
malpractice case] shall not exceed the greater of one million

120 In defining this cause of action and its limits, however, the legislature also
enacted an exception under which a plaintiff may challenge the imposition of the
$1 million cap.

#### 2. The Exception

121
Subsection 302(1)(b) provides that

See also § 13-64-202(7), C.R.S. (2025) (defining "[p]resent value" as "the amount as
of a date certain of one or more sums payable in the future, discounted to the date
certain"); City of Aspen v. Burlingame Ranch II Condo. Owners Ass'n, 2024 CO 46,
T 38, 551 P.3d 655, 664 ("Economic loss is defined generally as damages other than
physical harm to persons or property." (quoting Town of Alma v. AZCO Constr.,
Inc., 10 P.3d 1256, 1264 (Colo. 2000))). The exception requires courts to resolve two
questions: (1) whether to exceed the cap and, if so, (2) the amount of damages to
award.

123 The parties disagree, however, on what law governs the court's second
determination: how to determine the amount of damages beyond the $1 million
cap.

regardless of whether the jury found them to be appropriate." Wallbank, 140 P.3d
at 181.

126 To resolve this conflict, we begin with the statute's plain language. As a
reminder, here's the relevant portion of the statute:

§ 13-64-302(1)(b) (emphasis added).

unfair" relates to the preceding phrase, "upon good cause shown," which relates
to the preceding word "if." This structure means that the good-cause and
unfairness requirements apply only to the court's first, conditional
determination- whether to exceed the $1 million cap-and not to the resulting
second determination-the amount of damages. § 13-64-302(1)(b); see also
Huffman, 1 16, 465 P.3d at 112.

130 Accordingly, we reject Banner Health's invitation to interpret the statute as
imposing a "good cause and fairness" standard on the court's determination of the
amount of damages beyond the statutory cap. But if good cause and fairness aren't
the standard for determining a higher amount, how should a court proceed?
Because subsection 302(1)(b)the statute is silent on this matter, we must look
beyond the statute's plain language to answer this question. We focus on two
points.

beyond the cap, we believe the legislature intended for the jury to retain its
common law authority to determine the appropriate amount of damages.

132 Second, because the statute is silent on this issue, we look to the legislative
history for guidance. We know, from legislative discussions and from the statute's
declaration, thatSecond, the legislature enacted the HCAA "to assure the continued
availability of adequate health-care services to the people of this state by
containing the significantly increasing costs of malpractice insurance for medical
care institutions and licensed medical care professionals." § 13-64-102(1), C.R.S.
(2025). The legislature also wanted "to protect patients from bad doctors."
Hearings on S.B. 143 before When discussing amendments to the bill, including
the conditions by which a court would be able to exceed the cap, one senator
observed, however, that "unless there is some relief valve . .. , I think that there
are going to be occasions of terrible miscarriages of justice if there is just a cold
hearted limit to the S. Comm. on Bus. Affs. & Lab., 56thamount of damages on
noneconomic losses."- Gen. Elec. Co. e. Niemet, 866 P.2d 1361, 1365 (Cole. 1994)
(quoting Second Reading of S.B. 67 before the Senate, 55th Gen .- Assemb., 2d Reg.
Sess. (Feb. 15, 198825, 1986) (statement of Sen. Strickland). Meiklejohn)). And, as
bill sponsor Senator Strickland, one of the bill's sponsors, emphasized how
important it was that "Hefley said, "We do want to do two or three things with
this [bill]. We want to bring some predictability back into the provision of fairness

prevail throughout this bill." system and . .. we do not want to penalize legitimate
victims who have had extensive pain and suffering . . . . " Id .; see also Hearings on,
(quoting Second Reading of S.B. 14367 before the S. Comm. on Bus. Affs. & Lab.,
56thSenate, 55th Gen. Assemb., 2d Reg. Sess. (Feb. 18, 1988) ("Feb. 18 Hearing")
(statement of Sen. Strickland).

133 While these broad declarations are informative, they don't resolve how to
calculate damages under subsection 302(1)(b)'s good-cause exception. In fact, we
were unable to find any legislative history directly related to this issue. The
legislators did, however, discuss related statutory provisions, which sheds some
light on their 25, 1986)); see also People v. Sprinkle, 2021 CO 60, | 22, 489 P.3d 1242,
1246 ("[T]he testimony of a bill's sponsor concerning its purpose and anticipated
effect can be powerful evidence of legislative intent." (quoting Vensor v. People, 151
P.3d 1274, 1279 (Colo. 2007) -. For example, they had numerous discussions about
the different roles of the jury and the court in determining damages under the
HCAA's_periodic_payments provisions, § 13-64-205(1)(d), C.R.S. (2025),
emphasizing that jurors are going to calculate present value during their
calculation of future payments, so the statute should provide that the jury, rather
than the court, performs that calculation. See Feb. 18 Hearing, supra (-These
statements of Sens. Fowler and Meiklejohn); see also Second Reading of S.B. 143
before the Senate, 56th Gen. Assemb., 2d Reg. Sess. (Feb. 25, 1988) (statement of

Sen. Meiklejohn); accord Feb. 18 Hearing, supra (statement of Sen. Meiklejohn).
And on several occasions, legislators and witnesses referenced the broad tort
reform bills enacted two years prior -where, like here, balancing fairness and
stability was a central concern, indicate that "it was see Gen. Elec. Co. v. Niemet, 866
P.2d 1361, 1365 (Colo. 1994) (quoting legislative discussions from enactment of the
1986 tort reform bills)- and drawing special attention to the desire for consistency
across these provisions, see Feb. 18 Hearing, supra (statement of Sen. Meiklejohn);
Hearings on S.B. 143 before the H. Comm. on Bus. Affs. & Lab., 56th Gen. Assemb.,
2d Reg. Sess. (Mar. 10, 1988) (statements of Alan Johnson); Second Reading of S.B.
143 before the House, 56th Gen. Assemb., 2d Reg. Sess. (Apr. 5, 1988) (statements
of Rep. Bowen).

132-Nonetheless, these discussions on related matters don't clearly demonstrate
the legislature's intention to balance 'the concern over insurance affordability and
predictability with concern for fairness to seriously injured people."" Colo-
Permanente Med. Grp., P.C. +-intent regarding who should calculate damages once
the court determines that the cap should be exceeded. Thus, because the statute is
silent and the legislative history doesn't provide a clear expression of legislative
intent to the contrary, we "fill the statutory gaps by referring to principles of
common law." Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244, 1248 (Colo. 1994); see
also Parrish v. United States, 605 U.S. 376, 383 (2025) ("Congress legislates . . .

'against a background of common-law adjudicatory principles,' and it expects
those principlesEvans, 926 P.2d 1218, 1229 (Colo. 1996) (quoting Niemet, 866 P.2d
at 1365).

134 Therefore, we conclude that the legislature didn't intend to apply 'except
"when a statutory purpose to the contrary is evident.""" (quoting Astoria Fed. Sav.
& Loan Ass'ncompletely v. Solimino, 501 U.S. 104, 108 (1991))); Argus Real Est., Inc.
v. E-470 Pub. Highway Auth., 109 P.3d 604, 611 (Colo. 2005) (""[S]tatutes may not be
interpreted to abrogate the common law unless such abrogation was clearly the
intent of the General Assembly.' Absent such clear intent, statutes must be
deemed subject to the common law." (alteration in original) (citations omitted)
(quoting Preston v. Dupont, 35 P.3d 433, 440 (Colo. 2001), superseded in part by statute
as recognized in, Pringle v. Valdez, 171 P.3d 624, 631 (Colo. jury's common law
authority to determine damages in medical malpractice cases. Instead,2007))).

133135 Therefore, we conclude that if a court determines that subsection 302(1)(b)'s
exception applies, it should defer to the jury's common-law authority to determine
damages, subject to the court's continuing authority to review the sufficiency of
the evidence and to entertain certain narrow excessive-amount challenges as
outlined above in Part II.B.

### D. Application

134136 Here, after determining that subsection 302(1)(b)'s exception applied, the
trial court reviewed the record and found that the evidence was sufficient to
support the jury's damages award and that the award wasn't grossly and
manifestly excessive. It then entered judgment for the jury's full damages award.
We perceive no abuse of discretion in the trial court's findings and therefore, like
the division, we affirm the trial court's judgment.3 See Gresser, 11 20-22, 543 P.3d
at 1069-70; see also Averyt, 265 P.3d at 462 (explaining that an appellate court
reviewing a jury's damages award must "view the record in the light most
favorable to the prevailing party and draw every inference deducible from the
evidence in favor of that party," and the court may not overturn the award if it
"can be supported under any legitimate measure for damages" (quoting
Husband v. Colo. Mountain Cellars, Inc., 867 P.2d 57, 60 (Colo. App. 1993))).

### III. Conclusion

135137 Therefore, we affirm the judgment of the court of appeals.

November 24, 20252025 CO 60M, 23SC959, Banner Health v. Gresser

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