Jacqueline Gebert v. Sears, Roebuck & Co.

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                SUMMARY
                                                           November 9, 2023

                               

No. 22CA0887, Gebert v Sears Roebuck & Co. — Torts —
Personal Injury — Negligence — Vicarious Liability; Damages —
Limitations on Damages for Noneconomic Loss or Injury;
Constitutional Law — Seventh Amendment — Right to Civil
Jury Trial

     In this personal injury action, the plaintiff cross-appeals the

district court’s reduction of her noneconomic damages to the

statutory cap imposed by section 13-21-102.5(3)(a), C.R.S. 2023,

arguing that it violates the Seventh Amendment to the United

States Constitution. While published Colorado cases have rejected

other constitutional challenges to statutory damage caps, a division

of the court of appeals concludes as a matter of first impression

that our general statutory cap on noneconomic damages does not

run afoul of the Seventh Amendment because longstanding

precedent instructs that the amendment does not apply to the
states. The division also holds that the district court’s admission of

the defendant’s earlier denial and later admission of negligence was

irrelevant but ultimately harmless, and therefore it affirms.
COLORADO COURT OF APPEALS                                      

Court of Appeals No. 22CA0887
Arapahoe County District Court No. 19CV32833
Honorable Elizabeth Beebe Volz, Judge


Jacqueline Gebert,

Plaintiff-Appellee and Cross-Appellant,

v.

Sears, Roebuck & Co.,

Defendant-Appellant and Cross-Appellee.


                            JUDGMENT AFFIRMED

                                 Division II
                           Opinion by JUDGE FOX
                        Furman and Pawar, JJ., concur

                        Announced November 9, 2023


Ridley, McGreevy & Winocur, P.C., Robert T. Fishman, Denver, Colorado; Burg
Simpson Eldredge Hersh & Jardine, P.C., Stephen J. Burg, Jessica L. Breuer,
David J. Crough, Englewood, Colorado, for Plaintiff-Appellee and Cross-
Appellant

Wheeler Trigg O’Donnell LLP, Meghan Frei Berglind, Frederick R. Yarger,
Denver, Colorado, for Defendant-Appellant and Cross-Appellee

Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Lance T. Collins,
Denver, Colorado, for Amici Curiae Colorado Defense Lawyers Association,
Colorado Civil Justice League, and Coloradans Protecting Patient Access

Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Lance T. Collins,
Denver, Colorado, for Amici Curiae American Property Casualty Insurance
Association, American Tort Reform Association, Chamber of Commerce of the
United States of America, Colorado Chamber of Commerce, Colorado Civil
Justice League, Coloradans Protecting Patient Access, National Association of
Mutual Insurance Companies

Dormer Harpring, Timothy M. Garvey, Denver, Colorado, for Amicus Curiae
Colorado Trial Lawyers Association
¶1    In this personal injury action, plaintiff, Jacqueline Gebert,

 sued defendant, Sears, Roebuck & Co. (Sears), and its local home

 repair branch after being electrocuted by her stove, which a Sears

 repairperson had incorrectly wired. A jury awarded Gebert

 $2,700,000 in damages. Sears appeals the district court’s

 admission of evidence regarding its initial denial and later

 admission of negligence. Gebert cross-appeals the district court’s

 reduction of her noneconomic damages to the statutory cap in

 section 13-21-102.5(3)(a), C.R.S. 2023. Nonparties to the litigation

 filed three amicus briefs — one in support of Sears on the

 evidentiary issue and two taking opposing stances on the

 constitutionality of Colorado’s statutory cap on noneconomic

 damages.

¶2    As to the evidentiary issue, we conclude that the district court

 erred by admitting evidence of Sears’ denial and later admission of

 negligence because it was not relevant to any material issue at trial.

 Nevertheless, any error in the admission of the evidence was

 harmless.

¶3    Although binding precedent has upheld the constitutionality of

 Colorado’s statutory cap on noneconomic damages, we consider, as


                                   1
 a matter of first impression, whether the statutory cap infringes on

 the right to a civil jury trial as guaranteed by the Seventh

 Amendment to the United States Constitution. Because the

 Seventh Amendment has not been applied to the states, and

 because our state constitution does not guarantee the right to a

 civil jury trial, we conclude that the statutory damages cap is

 constitutional. Perceiving no abuse of the district court’s discretion

 in declining to exceed the cap, we conclude that the court properly

 capped Gebert’s noneconomic damages at the statutory limit.

 Therefore, we affirm.

                           I.    Background

                         A.     Factual History

¶4    In January 2019, Gebert hired Sears to repair a faulty burner

 on her electric stove. Sears dispatched a service technician to

 Gebert’s home who incorrectly wired the stove. The miswiring

 caused the metal parts of the cooking surface to become energized

 at the same voltage as a standard home outlet.

¶5    After the repair, Gebert placed a pan on the stove while

 simultaneously washing dishes. With wet silverware in one hand,

 Gebert used the other hand to pull the pan off the hot burner and


                                    2
 was electrocuted. Gebert testified that she felt the current enter her

 body, causing her arm to jerk and release the silverware to the

 floor.

¶6        Gebert was taken to the emergency room, where she reported

 experiencing leg pain and fatigue. A doctor examined Gebert, ran

 several tests, and concluded that any electrical shock she had

 received did not injure her muscles, heart, or internal organs.

¶7        Gebert visited a primary care physician the next day,

 complaining of a tingling sensation in her fingers. In the months

 after her electrocution, Gebert received medical care from various

 specialists for symptoms ranging from abnormal sensations in her

 body, visual disturbances, and ringing ears, to anxiety and

 cognitive and memory deficits.

                           B.   Procedural History

¶8        Gebert sued Sears for negligence and vicarious liability. In its

 answer, Sears denied that it was negligent in hiring, supervising, or

 training its repairperson. Regarding the vicarious liability claim,

 Sears admitted that the repairperson was a Sears employee acting

 within the course and scope of his employment but denied that he

 was negligent. At the conclusion of its answer, Sears requested


                                       3
  costs, attorney fees, and interest without asserting a legal basis for

  the request.

¶9     In response to Gebert’s request for admissions (RFA), Sears

  again denied that its employee incorrectly wired the stove. The

  repairperson later denied during his deposition accessing the

  stove’s electrical box or rewiring any portion of the stove.

¶ 10   Six weeks before trial, Sears amended its RFA response. Sears

  admitted that the repairperson’s incorrect wiring energized the

  stove. But Sears continued to deny that the incorrect wiring caused

  any injury to Gebert. Gebert moved for sanctions under C.R.C.P.

  37(c)(2) based on Sears’ delayed admission of negligence. The court

  did not rule on the motion until after trial.

¶ 11   The parties agreed that the only remaining issues for trial were

  causation and damages. Accordingly, the jury received stipulated

  facts from the parties, including that the repairperson incorrectly

  wired the stove, which energized the cooking surface. Gebert

  sought damages for noneconomic losses and for physical

  impairment.




                                     4
¶ 12   At trial, the jury heard testimony from Gebert’s neurologist,

  neuropsychologist, physical therapist, and optometrist,1 who each

  testified about their role in Gebert’s treatment. After eliminating

  other potential diagnoses, Gebert’s neurologist diagnosed her with a

  mild traumatic brain injury (TBI) caused by electric shock. On

  cross-examination, Sears impeached the neurologist with his own

  statement that, despite “best efforts and extensive testing, there has

  been a general paucity of objective findings” to corroborate the

  diagnosis. Gebert’s neuropsychologist diagnosed her with post-

  traumatic stress disorder and a mild neurocognitive disorder

  resulting from TBI. Gebert’s physical therapist testified that she

  initially treated Gebert for balance problems, but that Gebert’s

  treatment plan evolved to include treatment for neck, shoulder, and

  hip pain, as well as sensitivity to touch, light, and sound. Gebert

  was ultimately diagnosed with a hypersensitive sympathetic

  nervous system. The optometrist’s testimony established that

  Gebert had visual impairment in her left eye that significantly

  improved after seven months of treatment.



  1 A video deposition of Gebert’s optometrist was played for the jury.



                                    5
¶ 13   After a five-day trial, the jury found that Gebert was injured

  because of Sears’ negligence. The jury returned a $2,000,000

  verdict for Gebert’s noneconomic damages and a $700,000 verdict

  for physical impairment.

¶ 14   Sears moved the district court to reduce Gebert’s noneconomic

  damages to the then-applicable statutory limit ($468,010). § 13-21-

  102.5(3)(a). The district court granted the motion and reduced

  Gebert’s noneconomic damages to the statutory cap. The court also

  denied Sears’ motion for a new trial or remittitur and Gebert’s

  motion for sanctions based on Sears’ delayed admission of

  negligence.

¶ 15   We first address Sears’ challenge to the district court’s ruling

  allowing evidence of Sears’ denial and later admission of negligence.

  Then we address Gebert’s argument that the court erred by capping

  her noneconomic damages at the statutory limit.

                    II.   Admission of RFA Evidence

¶ 16   Sears challenges the district court’s admission of evidence that

  Sears initially denied negligence in response to the first RFA but

  later amended its RFA response to admit negligence. Sears claims

  that its denial and later admission were irrelevant to the issues


                                    6
  remaining at trial: causation and damages. We agree but conclude

  that any error was harmless.

                       A.   Additional Background

¶ 17   Before jury selection, Sears’ counsel made a motion in limine

  questioning Gebert’s subpoena of Bryan Kerns, a Sears

  representative. Sears argued that, given its stipulation to liability,

  Kerns’ testimony was irrelevant to any remaining issue at trial.

  Gebert responded with two purposes for calling Kerns: (1) to

  “review” Sears’ credibility as to the inconsistent factual positions it

  had taken and (2) to discuss “the dangers of electric injury.”

¶ 18   Regarding the first purpose, the district court replied,

             I’ve seen this many times where a defendant in
             a personal injury accident or incident denies
             that they were negligent and then as the case
             proceeds they admit that they are negligent
             and counsel wants the jury to hear that at one
             point in time they denied it, and now they’ve
             admitted it. I don’t know — personally, I don’t
             know that that’s all that important to anybody,
             including the jury, but it’s your case. So, if
             you want to tell the jury that [Sears] denied
             that they were negligent, but now has admitted
             it . . . you can make that argument if you want
             to.

  After briefly discussing Kerns’ ability to testify remotely, the court

  continued:


                                     7
             [A]nd we’ll deal with relevance issues while
             he’s on the stand. So, what I caution you,
             [plaintiff’s counsel], is that . . . I will allow you
             to ask a question or two about . . . “when did
             Sears Roebuck admit negligence?” But we’re
             not going to spend a lot of time on it. And
             we’re not going to go into every single incident
             where [Sears], at some point in this case,
             denied that [it was] . . . negligent. So, focus on
             other issues that you raised about if he gave
             testimony about the knowledge of electricity or
             stoves or whatever it is. Because we’re not
             going to go into that collateral issue . . . .

¶ 19   Gebert’s counsel called Kerns to testify about Sears’ denial

  and later admission of negligence. Kerns testified that Sears denied

  negligence and sought costs, attorney fees, and interest in its

  January 2020 answer. Sears objected on relevance grounds. The

  district court overruled the objection, explaining, “Counsel, we’ve

  talked about [the fact that] you can talk about the timeline of . . .

  what position they took. . . . But not an argument to the jury, at

  this point in time.” Gebert’s counsel then asked Kerns whether

  Sears denied negligence in its first RFA response. Sears again

  objected on relevance grounds, and the court again overruled the

  objection, but it warned Gebert’s counsel to elicit the timeline and

  move on.




                                       8
¶ 20   Gebert’s counsel then asked Kerns how Sears’ position

  changed in its amended RFA response, to which Kerns answered

  that Sears admitted its employee’s negligence. Gebert’s counsel

  concluded the examination as follows:

            PLAINTIFF: Okay. And this is the first time, so
            first time —

            DEFENDANT: Objection, Your Honor. . . .

            THE COURT: He can — you can ask that
            question.

            PLAINTIFF: Yeah.

            THE COURT: Just . . . ask that question and
            let him answer and then let’s move on to
            something else.

            PLAINTIFF: So the first time they admit
            responsibility is August [17], 2021?

            ....

            WITNESS: [T]hat’s . . . the date that it says
            admit on the form. I haven’t had
            conversations about this in months.

            PLAINTIFF: Now, sir, I did the math on that
            and it took Sears nine hundred —

            DEFENDANT: Objection.

            PLAINTIFF: — and thirty-eight days —

            THE COURT: All right.

            PLAINTIFF: — to admit —

                                    9
             THE COURT: Sustained.

             PLAINTIFF: — negligence.

             THE COURT: Sustained. Sustained.
             Sustained, Counsel. Let’s move on to —

             PLAINTIFF: That was my last — that’s my last
             question, Your Honor.

¶ 21   On redirect, Gebert’s counsel continued to push the

  boundaries of the district court’s original ruling to allow “a question

  or two.” The court scolded counsel, “That is enough. This is such a

  collateral issue.” After again warning Gebert’s counsel that “[t]his is

  super collateral. It’s a stipulated fact in your jury instructions that

  they admitted negligence,” the district court allowed Gebert two

  more minutes on the subject.

¶ 22   During closing argument, Gebert’s counsel characterized

  Kerns’ testimony as follows:

             Now, you’ve heard that [Sears] was 100
             percent negligent. But [Sears] hasn’t really
             accepted responsibility. I covered that with
             Mr. Kerns and you heard that they denied
             responsibility, despite having these
             inspections. They said, “No, we didn’t do it.
             Prove it.” And each step of the way, we’ve had
             to prove it. That’s something for you to
             consider. After that inspection, literally with
             the Sears person holding it in the pictures,
             they said, “Nope, this was not” — “this was not


                                    10
             hotwired and we didn’t do anything wrong.
             Prove it.”

             The second inspection, wrongly wired. Again,
             they denied any responsibility, even having
             these photos in their files. What’s the
             reasonable basis for that?

             You heard from Mr. Kerns that he said it’s
             clearly improperly wired. . . . What they did is
             they denied responsibility and they asked Ms.
             Gebert to pay them money in this case.

             So, just so everybody has a full, clear picture
             about what’s happened here, she . . . has had
             an electric shock. She’s trying to do the best
             she can. She’s trying to figure things out. And
             Sears is saying, “You’re going to pay us
             money.” Consider that.

             You know, sometimes people . . . do things to
             try to look good. Admission of liability, they
             knew it was indefensible. And they were
             hoping to come in here and say, “Look, we took
             responsibility.” And they were hoping they
             would get rewarded from that — from all of
             you. You know . . . playing legal games, it
             shouldn’t be like this. Nine hundred and
             thirty-eight days.

  Sears’ counsel did not object.

¶ 23    In its post-trial order denying Gebert’s motion for sanctions,

  the court described Kerns’ testimony, and how Gebert’s counsel

  used it at closing argument, as “not necessary” and a “strategic trial

  tactic.”


                                    11
                            B.    Preservation

¶ 24   Sears claims that the RFA evidence was inadmissible for three

  independent reasons: (1) other jurisdictions have uniformly held

  that RFA evidence regarding litigation conduct is inadmissible in

  tort cases where the parties’ litigation conduct is not at issue; (2)

  Sears has a right to mount a good faith legal defense, and the RFA

  evidence compromised that right; and (3) the evidence was

  irrelevant. Only Sears’ third argument is preserved.

¶ 25   In civil cases, arguments never presented to, considered by, or

  ruled upon by a district court may not be raised for the first time on

  appeal. Madalena v. Zurich Am. Ins. Co., 

, ¶ 50; Colo.

  Div. of Ins. v. Statewide Bonding, Inc., 

, ¶ 73. To

  properly preserve an argument for appeal, the party asserting the

  argument must present “the sum and substance of the argument”

  to the district court. Madalena, ¶ 50 (citation omitted).

¶ 26   Sears did not argue during the motions in limine conference

  that responses to RFAs are necessarily inadmissible. Nor did it

  argue that admission of the RFA evidence compromised Sears’ right

  to mount a legal defense. Because Sears did not bring these

  arguments to the district court’s attention and did not provide the


                                     12
  court with an opportunity to rule on them, they are not preserved,

  and we will not consider them. See Dill v. Rembrandt Grp., Inc.,

  

.

¶ 27   In contrast, the foregoing record evidence convinces us that

  Sears raised the sum and substance of its relevance objection to the

  district court repeatedly, and the court understood the objection

  and had multiple opportunities to rule on it. To the extent that the

  district court’s first ruling was ambiguous because it said it would

  take up relevance issues on the stand, that ambiguity was remedied

  when Sears objected on relevance grounds to Gebert’s first question

  about RFA evidence, and the court responded that it would allow

  brief questioning about the general timeline of the denial and later

  admission, pursuant to its earlier ruling. The relevance objection

  was, then, clearly and definitively preserved. Because Sears

  properly preserved that argument, we address it below, concluding

  that the evidence was irrelevant but that its admission was

  harmless.

              C.   Applicable Law and Standard of Review

¶ 28   Evidence is relevant if it has “any tendency to make the

  existence of any fact that is of consequence to the determination of


                                   13
  the action more probable or less probable than it would be without

  the evidence.” CRE 401. Evidence that is not relevant is

  inadmissible. CRE 402.

¶ 29   We review a district court’s evidentiary rulings for an abuse of

  discretion. CORE Elec. Coop. v. Freund Invs., LLC, 

,

  ¶ 16. A district court abuses its discretion when its decision is

  “manifestly arbitrary, unreasonable, or unfair, or based on an

  erroneous understanding or application of the law.” 

¶ 30   In the civil context, we review evidentiary rulings for harmless

  error. CRE 103(a); C.R.C.P. 61. Thus, we will only disturb the

  district court’s decision if an error affected a substantial right of a

  party. CORE Elec. Coop., ¶ 41. An error affects a substantial right

  only if “it can be said with fair assurance that the error

  substantially influenced the outcome of the case or impaired the

  basic fairness of the trial itself.” 

 (quoting Bly v. Story, 

 (Colo. 2010)).

                  D.   The RFA Evidence Was Irrelevant

¶ 31   We conclude that the RFA evidence was not relevant to any

  material fact at trial. There is no dispute that causation and

  damages were the contested issues at trial; because Sears admitted


                                     14
  its negligence, that was not at issue at trial. Gebert did not

  advance an evidential theory as to how Sears’ litigation conduct

  made any fact material to causation or damages more or less likely.

  Alhilo v. Kliem, 

 (evidence of an undisputed

  issue tends to be irrelevant); Parsons v. Allstate Ins. Co., 

 (Colo. App. 2006) (holding that, in cases involving bad

  faith of insurers, evidence of litigation conduct is admissible subject

  to CRE 403, but the relevance of litigation conduct not directly

  related to an insurance company’s alleged bad faith “may be

  limited”); Gonsalves v. Li, 

 (Ct. App.

  2015) (holding that RFA evidence is inadmissible where a party’s

  litigation conduct is not directly at issue); Bailes v. U.S. Fid. & Guar.

  Co., 

 (La. Ct. App. 1987) (“[T]he purpose of a

  request for admissions is to eliminate the necessity of proving

  uncontroverted facts. Denials of the facts contained in such

  requests, however, have no independent probative value.”). Even

  the district court admitted that the evidence was “collateral” and

  not for the jury.

¶ 32   Gebert’s counsel told the district court that the evidence would

  be used to “review the credibility of Sears.” “Credibility” means


                                     15
  “[t]he quality that makes something . . . worthy of belief.” Black’s

  Law Dictionary 463 (11th ed. 2019). Gebert did not explain how the

  RFA evidence was probative of the believability of a witness or

  evidence, and the district court did not make factual findings to

  that effect in its evidentiary ruling. We recognize that the credibility

  of a witness is always relevant, Margerum v. People, 

, but disagree that the challenged evidence was used here to

  attack the believability of any witness. See Fed. R. Evid. 401

  advisory committee’s note to 1972 proposed rules (“Relevancy is not

  an inherent characteristic of any item of evidence but exists only as

  a relation between an item of evidence and a matter properly

  provable in the case.”).

¶ 33   Indeed, Gebert’s closing argument told a different story.

  Gebert did not use the evidence to point out that Kerns (Sears’

  representative), or any evidence that Sears presented, was not

  worthy of belief. To the contrary, Gebert used the evidence to

  portray Sears as disingenuous and uncompromising. Gebert

  argued that Sears played legal games, did not “accept

  responsibility,” and had the audacity to ask her for fees and costs

  after injuring her. These arguments had nothing to do with


                                    16
  causation or damages, and they had nothing to do with the

  believability of any witness.2 Instead, these arguments were blatant

  attacks on Sears’ character offered to inflame the hostility of the

  jury, which is plainly improper. CRE 404(a); CRE 403.

¶ 34    We are similarly unpersuaded by Gebert’s arguments on

  appeal. Gebert argues that Sears’ responses to the RFA were

  admissible either as statements by a party opponent under CRE

  801(d)(2) or statements against interest under CRE 804(b)(3). Both

  arguments miss the mark, as Gebert would still have to overcome

  the relevancy hurdle before the evidence could be admitted under

  those identified hearsay rules. And even if the RFA evidence was

  relevant, CRE 804(b)(3) does not apply because a representative of

  Sears was available to testify. CRE 804(b) (“The following are not

  excluded by the hearsay rule if the declarant is unavailable as a

  witness: . . . .”).




  2 These arguments had some relevance to Gebert’s motion for

  sanctions, but that motion required a decision by the court, not the
  jury.

                                    17
          E.    Admission of the RFA Evidence Was Harmless

¶ 35   We conclude that the RFA evidence did not, on its own,

  substantially influence the outcome of the case. See Bly, 

; see also Balzekas v. Looking Elk, 

 (Ill.

  App. Ct. 1993) (holding that mention, during opening statement, of

  a delayed admission of liability, while irrelevant, did not warrant

  mistrial). We reach this conclusion for four reasons.

¶ 36   First, Gebert presented significant evidence from four medical

  professionals who diagnosed her as having cognitive and physical

  impairments following her electrocution. Importantly, at least three

  of these doctors testified to the objectiveness of their diagnostic

  testing, asserting that Gebert could not “fake” the results. And

  Gebert presented testimony from several lay witnesses that she is

  not the same person she was before the incident.

¶ 37   Second, Sears had an opportunity to cross-examine Kerns,

  and it used the opportunity to give the jury a benign explanation for

  its change in litigation strategy. Kerns testified that Sears’

  repairperson denied opening the stove’s electric box and doing any

  rewiring in his deposition. And Kerns testified that, after further




                                     18
  investigation and “multiple discussions,” Sears concluded that its

  repairperson was likely the one who incorrectly wired the stove.

¶ 38   Third, while the RFA evidence was Gebert’s counsel’s first

  substantive point in closing argument, Sears’ counsel did not object

  to the argument, suggesting counsel’s belief that, in the context of

  live argument, the argument was not overly damaging. See People

  in Interest of T.C.C., 

, ¶ 7.

¶ 39   Fourth, while Sears repeatedly characterizes the prejudicial

  harm of the irrelevant admission as causing the “oversized” verdict

  awarded, we cannot ignore the fact that the jury awarded less than

  the amount for which Gebert asked, see Harris Grp., Inc. v.

  Robinson, 

 (Colo. App. 2009), and the district

  court capped that verdict at the statutory limit, reducing Sears’

  claimed damages. See Scholle v. Ehrichs, 

, ¶ 68 (a

  court’s instructional error in defining the categories of damages at

  issue is harmless where the jury did not award damages in the

  challenged category) (cert. granted Apr. 10, 2023).

¶ 40   For these reasons, we cannot conclude that the district court’s

  admission of irrelevant evidence, and permitting its improper use in




                                    19
  closing argument, substantially influenced the outcome of the case.

  See Bly, 

; Balzekas, 

.

             III.   Statutory Cap on Noneconomic Damages

¶ 41   Section 13-21-102.5(3)(a) governs limitations on damages for

  noneconomic loss or injury, and it states, in pertinent part,

             In any civil action . . . in which damages for
             noneconomic loss or injury may be awarded,
             the total of such damages shall not exceed the
             sum of two hundred fifty thousand dollars,
             unless the court finds justification by clear
             and convincing evidence therefor.

  The statutory damages cap is adjusted biennially for inflation.

  § 13-21-102.5(3)(c)(I).

¶ 42   On cross-appeal, Gebert argues that section 13-21-102.5(3)(a)

  is unconstitutional. Gebert contends that the statute violates the

  Seventh Amendment right to a trial by jury. In the alternative,

  Gebert argues that the district court abused its discretion by

  declining to exceed the presumptive statutory cap. Both arguments

  are unavailing.

                      A.    Constitutional Argument

¶ 43   The Seventh Amendment to the United States Constitution

  establishes the right to a jury trial in civil cases. It also provides



                                     20
  that in suits at common law, “no fact tried by a jury, shall be

  otherwise re-examined in any Court of the United States, than

  according to the rules of the common law.” U.S. Const. amend. VII.

  The Seventh Amendment does not apply to the states. Gasperini v.

  Ctr. for Humans., Inc., 

 (1996); Minneapolis & St.

  Louis R.R. Co. v. Bombolis, 

 (1916); Firelock Inc. v.

  Dist. Ct., 

 (Colo. 1989).

¶ 44    Gebert asks us to apply the Seventh Amendment to the states

  via the incorporation doctrine. For support, Gebert argues that the

  right is deeply rooted in our nation’s history and tradition and

  essential to our scheme of ordered liberty. See McDonald v. City of

  Chicago, 

 (2010). We are not at liberty to do so.

  State Oil Co. v. Khan, 

 (1997) (“[I]t is this Court’s

  prerogative alone to overrule one of its precedents.”); see also People

  v. Harmon, 

, ¶ 3 n.1 (“[W]hen . . . the United States

  Supreme Court decides a question of federal constitutional law, that

  decision constitutes the supreme law of the land, and we must

  follow it . . . .”).

¶ 45    Gebert argues that we may nevertheless incorporate the

  Seventh Amendment against the states if recent Supreme Court


                                     21
  precedent implicitly overrules its prior precedent. But Gebert

  advances no authority that, in our view, implicitly overruled the

  longstanding rule that the Seventh Amendment does not apply to

  the states. To the extent that Walker v. Sauvinet, 

 (1875),

  rests on shaky legal footing, as Gebert suggests, we find the fact

  that the Supreme Court continues to cite Walker with approval for

  the proposition that the Seventh Amendment does not apply to the

  states fatal to Gebert’s argument. See Gasperini, 

.

  Thus, we are not convinced that the Supreme Court has implicitly

  overruled Walker and its progeny or that we have discretion to

  deviate from it. See Firelock, 

.

¶ 46   And in any event, federal courts have upheld damage caps

  under the United States Constitution. See Tudor v. Se. Okla. State

  Univ., 

, 1046 (10th Cir. 2021) (“It is clearly

  established that the application of a statutory damages cap to a

  jury award does not violate the Reexamination Clause.”); Patton v.

  TIC United Corp., 

 (10th Cir. 1996) (upholding

  constitutionality of noneconomic damages cap statute under the

  Equal Protection Clause); see also Parklane Hosiery Co. v. Shore,

  

 (1979) (recognizing that many procedural devices


                                    22
  that limit a civil jury’s domain, including directed verdict, retrial,

  and summary judgment, are not inconsistent with the Seventh

  Amendment).

¶ 47   Unlike the United States Constitution, the Colorado

  Constitution does not guarantee the right to a jury trial in civil

  cases. Johnson v. Schonlaw, 

; Scholz v. Metro.

  Pathologists, P.C., 

 (Colo. 1993). Gebert

  alternatively argues that we should overrule this precedent and

  recognize the civil jury trial right under the Colorado Constitution.

  We are, again, bound by the precedent Gebert challenges. Silver v.

  Colo. Cas. Ins. Co., 

 (Colo. App. 2009) (noting that

  a division of this court is not at liberty to disregard a rule

  announced in a prior supreme court case absent “some clear

  indication” that the supreme court has overruled its prior case);

  Rocky Mountain Gun Owners v. Hickenlooper, 

  (“There may be good reason for the supreme court to alter [its]

  precedent in the future, but we are not at liberty to do so.”).

¶ 48   Thus, we rely upon the well-established appellate precedent

  that statutory caps on noneconomic damages are constitutional and

  decline Gebert’s invitation to break new ground. See Garhart v.


                                     23
  Columbia/Healthone, L.L.C., 

 (Colo. 2004)

  (upholding damages cap imposed by the Health Care Availability

  Act (HCAA)); Scholz, 

 (holding that the HCAA’s

  damages cap does not violate the guarantees of equal protection or

  due process of law); Snook v. Joyce Homes, Inc., 

 (Colo. App. 2009) (upholding damages cap imposed by the

  Workers’ Compensation Act); Scharrel v. Wal-Mart Stores, Inc., 

 (Colo. App. 1997) (upholding the general statutory

  cap on noneconomic damages against equal protection and due

  process challenges under the Colorado and Federal Constitutions

  as well as a right of access to the courts challenge under our state

  constitution).

                   B.   Abuse of Discretion Argument

¶ 49   The relevant statutory cap after Gebert’s trial, as adjusted for

  inflation, was $468,010. See § 13-21-102.5(3)(c)(III). The statute

  “permits, but does not require,” the district court to exceed the cap

  if it finds a justification for doing so. Pisano v. Manning, 

, ¶ 35. Thus, “an award in excess of the statutory cap

  necessarily represents an exception to the standard limit.” Id. at

  ¶ 23. We will reverse a district court’s finding that no justification


                                    24
  existed to exceed the statutory cap only if it was manifestly

  arbitrary, unreasonable, or unfair. Id. at ¶ 37.

¶ 50   We perceive no such abuse of discretion. The district court

  found that Gebert’s injuries were not “so severe or desperate as to

  warrant an increase” in the damages award above the cap.

  Specifically, the court relied on the fact that Gebert was able to

  continue working after the incident and continues to live a generally

  productive life notwithstanding her TBI. Testimony in the record —

  including that Gebert remained able to drive, achieved professional

  accomplishments after the incident, and saw improvement in her

  physical symptoms after the incident — supports the court’s

  conclusion. Id. at ¶¶ 39-41.

¶ 51   The court also noted that the testimony regarding Gebert’s

  various diagnoses was “contradictory.” That conclusion finds

  support in the record, particularly in the testimony of Gebert’s

  neurologist and neuropsychologist, who each testified to the lack of

  objective evidence that could explain all of Gebert’s claimed

  symptoms.

¶ 52   We perceive no abuse of discretion in the district court’s

  conclusion that Gebert’s injuries did not rise to the severity of the


                                    25
  plaintiffs’ injuries in cases where the trial court had properly

  entered a damages award in excess of a damages cap. See Colwell

  v. Mentzer Invs., Inc., 

 (Colo. App. 1998)

  (exceeding the statutory limit was warranted where stress

  exacerbated the plaintiff’s multiple sclerosis and where she would

  eventually require a wheelchair); Gen. Elec. Co. v. Niemet, 

 (Colo. 1994) (exceeding the statutory limit was

  warranted where the plaintiff was injured in an explosion causing

  severe burns and dislocation of both shoulders). On these facts, we

  cannot conclude that the district court’s failure to find a

  justification to exceed the statutory cap was manifestly arbitrary,

  unreasonable, or unfair. Pisano, ¶ 37.

¶ 53   We are unpersuaded by Gebert’s suggestion that the jury’s

  verdict was dispositive of the district court’s obligation to exceed the

  statutory cap. Id. at ¶ 42 (“[T]he court does not abuse its discretion

  by requiring something more than the mere fact of a jury award to

  justify exceeding the statutory cap.”). The argument

  misunderstands Pisano, where a division of this court

  unambiguously observed that it was “not aware of any case that

  stands for the proposition that a trial court must exceed the


                                    26
  statutory cap if it determines that the jury’s noneconomic damages

  award was supported by clear and convincing evidence.” Id. at

  ¶ 31. The court was unable to identify a justification, based on

  clear and convincing record evidence, to exceed the statutory cap.

  And Gebert does not advance such a justification on appeal. Thus,

  we perceive no error.

                            IV.    Disposition

¶ 54   The judgment is affirmed.

       JUDGE FURMAN and JUDGE PAWAR concur.




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