Rehearing Denied May 30, 2019
[Copyrighted Material Omitted]
and County of Denver District Court No. 15CV32703, Honorable
Michael A. Martinez, Judge
Law Firm, Jennifer E. Bisset, Denver, Colorado, for
& DeMuro, David R. DeMuro, Richard K. Rediger, Denver,
Colorado, for Defendant-Appellee
Gold Law Firm, LLC, Michael J. Rosenberg, Greenwood Village,
Colorado, for Amicus Curiae Colorado Trial Lawyers
In this bad faith breach of an insurance contract case,
plaintiff, Richard Lorenzen, sued defendant, Pinnacol
Assurance, his employers workers compensation insurer,
after Pinnacol initially denied his request for surgery to
treat a work-related injury. Pinnacols denial resulted in a
thirteen-day delay between the date of the request and the
date Lorenzen underwent surgery.
Before trial, Lorenzen disclosed four doctors as experts who
intended to opine that the delay in approving the request
caused Lorenzen to suffer permanent nerve damage. The experts
relied on a theory that prolonged nerve compression from a
herniated disc leads to nerve damage and, therefore, surgery
must be performed sooner rather than later. As one of the
doctors explained the theory, "timing matters."
The district court concluded that the theory relied on by the
doctors — for patients with a disc herniation causing
neurological deficits, prompt surgery is preferable to
delayed surgery to preserve nerve function — was not a
scientifically reliable theory of medical causation and
disallowed the expert testimony. Without his experts
testimony, Lorenzen could not prove causation or damages, and
so the district court granted summary judgment in favor of
On appeal, Lorenzen contends that the district court erred in
excluding his expert testimony. He maintains that the court
imposed too stringent a causation standard and that, even
under the standard applied by the court, he presented a
reliable and relevant theory of causation that satisfies CRE
Lorenzen also contends that the district court erred in
entering judgment for Pinnacol, as he retained a claim for
noneconomic damages that did not require expert testimony.
We reject his contentions and therefore affirm.
On February 3, 2014, while Lorenzen was working as a
groundskeeper for a country club, he injured his back and
herniated disc with an extruded caudally migrated
fragment. Lorenzens employer reported the
injury to Pinnacol the next day.
Lorenzen was referred to Dr. Tracey Stefanon. She placed
Lorenzen on work restriction, recommended over-the-counter
anti-inflammatories, ordered an MRI, and referred Lorenzen to
an orthopedic surgeon, Dr. Douglas Beard.
On February 6, Dr. Beard advised Lorenzen that he would
likely need surgery, but, because Lorenzen wanted to avoid
surgery if possible, Dr. Beard prescribed steroids with
further monitoring. Lorenzen returned to Dr. Beard on
February 10, still experiencing pain and foot weakness, and
they decided that Lorenzen should have surgery as soon as
Lorenzen spoke with a claims adjuster on February 12 and
discovered that Dr. Beard had not submitted a request for
authorization of the surgery. He called Dr. Beards office
with a reminder to submit the request to Pinnacol, and Dr.
Beard faxed a request to Pinnacol marked "urgent."
According to Dr. Beard, an urgent request does not denote an
On February 17, Pinnacol verbally advised Lorenzen that it
would not authorize surgery, and the next day, it formally
denied his request on the ground that Lorenzens injury was
not work related.
On February 20, Lorenzen, now proceeding under his private
health insurance, consulted with Dr. William Biggs, an
orthopedic surgeon, and Dr. Biggs performed the surgery on
February 25. After the surgery, Lorenzen continued to
experience right foot weakness due to permanent nerve
On June 20, 2014, Pinnacol changed its position and
determined that Lorenzens injury was work related. It
reimbursed him for his medical costs and paid other workers
Lorenzen filed this action against Pinnacol, asserting a
claim for bad faith breach of an insurance contract. He
alleged that "[a]s a result of the delay in receipt of
surgical intervention, Lorenzen has permanent weakness and
loss of control over his foot with loss of strength and
stability, which affects his work, his activities of daily
living and his hobbies...."
In support of his claim, Lorenzen disclosed four medical
experts (Drs. Stefanon, Beard, and Biggs, and Dr. Rebeka
Martin) who intended to opine that the delay in authorizing
surgical intervention for Lorenzen resulted in his permanent
Pinnacol filed a pretrial motion to exclude the experts
testimony on the issue of medical causation, contending that
their opinions were not scientifically reliable and were
therefore inadmissible at trial.
The district court held a hearing on the motion at which it
reviewed the deposition testimony and heard argument from
counsel. None of the doctors testified at the hearing.
Thereafter, the district court made detailed findings and
issued an order disallowing the doctors from testifying at
trial that the thirteen-day delay caused by Pinnacol resulted
in Lorenzens permanent impairment.
Pinnacol then moved for summary judgment, arguing that
without the expert testimony, Lorenzen could not prove his
bad faith claim. Lorenzen responded by filing a motion to
reconsider the order prohibiting his experts testimony. He
attached to his motion additional ex parte
"deposition" testimony of Dr. Beard and an
affidavit by Dr. Martin. His motion for reconsideration
continued to assert the theory that prompt surgical
intervention is generally indicated for patients suffering
from nerve compression, but it also raised a new theory of
The district court denied Lorenzens motion for
reconsideration, denied as moot Pinnacols motion to strike
the doctors new testimony, and granted Pinnacols motion for
Exclusion of Expert Evidence on Causation
Lorenzen argues that the district court applied an overly
stringent but-for causation test rather than a more lenient
"substantial factor" test. But in any event, he
says, his expert evidence satisfies a but-for test and,
therefore, the district court erred in excluding the experts
testimony. We disagree.
Applicable Standard of Causation
The issue of the correct standard of causation is a legal
one. Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977,
985 (Colo.App. 2011). Therefore, our review of that issue is
de novo. Id.
To prevail on a common law claim of bad faith breach of an
insurance contract, the plaintiff must prove that the insurer
acted unreasonably and that the insurers unreasonable
conduct caused the plaintiffs injury or damages.
See Bankr. Estate of Morris v. COPIC Ins.
Co., 192 P.3d 519, 523 (Colo.App. 2008).
Damages for bad faith breach of an insurance contract are
based on traditional tort principles. City of Westminster
v. Centric-Jones Constructors, 100 P.3d 472, 484
(Colo.App. 2003). Under traditional tort principles, the
plaintiff must show that the defendants conduct
"proximately caused" the claimed injury.
Reigel, 292 P.3d at 985; see also June
v. Union Carbide Corp., 577 F.3d 1234, 1238 (10th Cir.
2009) ("In Colorado, as elsewhere, a party seeking
recovery in tort must demonstrate that the defendants
conduct caused the alleged injury.").
Proximate cause has two components: causation in fact and
legal causation. Moore v. W. Forge Corp., 192 P.3d
427, 436 (Colo.App. 2007). Legal causation — which
refers to the scope or foreseeability of liability,
see June, 577 F.3d at 1240 — is not
at issue here; Lorenzen only challenges the test for
causation in fact.
As to causation in fact, the test is "whether, but for
the alleged [tortious conduct], the harm would not have
occurred." Reigel, 292 P.3d at 985 (quoting
N. Colo. Med. Ctr., Inc. v. Comm. on Anticompetitive
Conduct, 914 P.2d 902, 908 (Colo. 1996) ).
Alternatively, the plaintiff can show factual causation by
establishing that the defendants conduct was a
"necessary component of a causal set that would have
caused the injury." Id. at 987; see
also Restatement (Second) of Torts § 432(1), (2) (Am.
Law Inst. 1965). Thus, Lorenzen had to present evidence that,
but for the thirteen-day delay between the request for
authorization and the surgery, the permanent nerve damage
would not have occurred, or that the delay was a necessary
component of a causal set that would have caused his
Relying on Sharp v. Kaiser Foundation Health Plan of
Colorado, 710 P.2d 1153 (Colo.App. 1985),
affd, 741 P.2d 714 (Colo. 1987), Lorenzen argues
that he could instead establish causation under the
"substantial factor" test by showing that
Pinnacols conduct was a substantial factor in increasing the
risk that he would have a less optimal surgical outcome.
In Sharp, the division held that the jury could
decide causation where the plaintiff presented expert
testimony that the defendants conduct was a substantial
factor in causing the injury in that it "substantially
increased plaintiffs risk of the resulting harm or
substantially diminished the chance of recovery." 710
P.2d at 1155. On ...