     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
                                                                April 18, 2019

                                2019COA54

Nos. 17CA0044 & 17CA0677, Lorenzen v. Pinnacol Assurance
— Labor and Industry — Workers’ Compensation; Insurance;
Torts — Bad Faith Breach of Insurance Contract; Evidence —
Testimony by Experts

     In this bad faith breach of insurance contract case, plaintiff

sued his employer’s workers’ compensation insurer, alleging that

the insurer’s thirteen-day delay in authorizing surgery caused his

permanent impairment.

     The plaintiff’s proffered 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. The district court disallowed the testimony. It

concluded that the experts’ theory was not a scientifically reliable

theory of medical causation and that the experts’ testimony would

require the jury to speculate as to whether the delay caused the
plaintiff’s impairment. Then, because the plaintiff could not prove

his claim without expert evidence, the district court entered

judgment in favor of the insurer.

     The division concludes that the district court did not abuse its

discretion in disallowing the expert testimony. First, the division

determines that the plaintiff had the burden to prove that but for

the thirteen-day delay, he would not have suffered a permanent

impairment. Second, the division concludes that the experts’ theory

of causation did not satisfy CRE 702, because the testimony did not

reliably connect the premise that nerve compression should be

alleviated by prompt surgery and the conclusion that it is more

likely than not that the thirteen-day delay in undergoing surgery

caused the plaintiff’s permanent impairment.
COLORADO COURT OF APPEALS                                          2019COA54


Court of Appeals Nos. 17CA0044 & 17CA0677
City and County of Denver District Court No. 15CV32703
Honorable Michael A. Martinez, Judge


Richard Lorenzen,

Plaintiff-Appellant,

v.

Pinnacol Assurance,

Defendant-Appellee.


                              JUDGMENT AFFIRMED

                                   Division I
                           Opinion by JUDGE HARRIS
                       Taubman and Rothenberg*, JJ., concur

                             Announced April 18, 2019


Bisset Law Firm, Jennifer E. Bisset, Denver, Colorado, for Plaintiff-Appellant

Vaughan & DeMuro, David R. DeMuro, Richard K. Rediger, Denver, Colorado,
for Defendant-Appellee

The Gold Law Firm, LLC, Michael J. Rosenberg, Greenwood Village, Colorado,
for Amicus Curiae Colorado Trial Lawyers Association


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    In this bad faith breach of an insurance contract case,

 plaintiff, Richard Lorenzen, sued defendant, Pinnacol Assurance,

 his employer’s workers’ compensation insurer, after Pinnacol

 initially denied his request for surgery to treat a work-related

 injury. Pinnacol’s denial resulted in a thirteen-day delay between

 the date of the request and the date Lorenzen underwent surgery.

¶2    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.”

¶3    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,




                                    1
 and so the district court granted summary judgment in favor of

 Pinnacol. 1

¶4    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 702.

¶5    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.

¶6    We reject his contentions and therefore affirm.

                           I.   Background

                      A.    Factual Background




 1 Pinnacol filed a “Motion to Dismiss Complaint Based on Rulings
 on Expert Testimony” but failed to cite the governing procedural
 rule or applicable standard of proof. The district court construed
 the motion as a motion for summary judgment and reviewed it
 under C.R.C.P. 56, then entered an order granting the motion to
 dismiss. Like the district court, we construe Pinnacol’s motion as a
 motion for summary judgment, and we refer to the court’s order as
 an order granting summary judgment in favor of Pinnacol.


                                  2
¶7     On February 3, 2014, while Lorenzen was working as a

  groundskeeper for a country club, he injured his back and suffered

  a herniated disc with an extruded caudally migrated fragment. 2

  Lorenzen’s employer reported the injury to Pinnacol the next day.

¶8     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.

¶9     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 possible.

¶ 10   Lorenzen spoke with a claims adjuster on February 12 and

  discovered that Dr. Beard had not submitted a request for



  2According to the deposition testimony of Drs. Beard and Biggs, a
  caudally migrated disc extrusion occurs when the outer part of the
  spinal disc ruptures, causing the inner material to push “completely
  outside” of the disc. In Lorenzen’s case, the material protruded
  downward, pressing on the nerve.

                                      3
  authorization of the surgery. He called Dr. Beard’s 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 emergency.

¶ 11   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 Lorenzen’s injury was not work

  related.

¶ 12   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 impairment.

¶ 13   On June 20, 2014, Pinnacol changed its position and

  determined that Lorenzen’s injury was work related. It reimbursed

  him for his medical costs and paid other workers’ compensation

  benefits.

                        B.    Procedural History

¶ 14   Lorenzen filed this action against Pinnacol, asserting a claim

  for bad faith breach of an insurance contract. He alleged that “[a]s


                                    4
  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 . . . .”

¶ 15   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 nerve damage.

¶ 16   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.

¶ 17   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 Lorenzen’s permanent

  impairment.




                                     5
¶ 18   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 causation. 3

¶ 19   The district court denied Lorenzen’s motion for

  reconsideration, denied as moot Pinnacol’s motion to strike the




  3 We will not address the arguments raised for the first time in
  Lorenzen’s motion for reconsideration or consider the new evidence
  submitted with that motion. See Fox v. Alfini, 2018 CO 94, ¶ 37
  (neither district court nor appellate court is obliged to consider new
  arguments and evidence submitted in motions to reconsider);
  People v. Schaufele, 2014 CO 43, ¶ 49 (Boatright, J., concurring in
  the judgment) (“Motions for reconsideration are designed to correct
  erroneous court rulings; they are not designed to allow parties to
  present new legal arguments for the first time and then appeal their
  denial to” an appellate court.); McDonald v. Zions First Nat’l Bank,
  N.A., 2015 COA 29, ¶ 85 (in reviewing grant of summary judgment,
  appellate court will not consider arguments and evidence that were
  not presented to the trial court in connection with the motion for
  summary judgment).

                                    6
  doctors’ new testimony, and granted Pinnacol’s motion for summary

  judgment.

            II.        Exclusion of Expert Evidence on Causation

¶ 20   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.

                  A.     The Applicable Standard of Causation

¶ 21   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.

¶ 22   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 insurer’s unreasonable conduct caused

  the plaintiff’s injury or damages. See Bankr. Estate of Morris v.

  COPIC Ins. Co., 192 P.3d 519, 523 (Colo. App. 2008).

¶ 23   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


                                        7
  traditional tort principles, the plaintiff must show that the

  defendant’s 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

  defendant’s conduct caused the alleged injury.”).

¶ 24   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.

¶ 25   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 defendant’s 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


                                     8
  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 impairment.

¶ 26   Relying on Sharp v. Kaiser Foundation Health Plan of Colorado,

  710 P.2d 1153 (Colo. App. 1985), aff’d, 741 P.2d 714 (Colo. 1987),

  Lorenzen argues that he could instead establish causation under

  the “substantial factor” test by showing that Pinnacol’s conduct was

  a substantial factor in increasing the risk that he would have a less

  optimal surgical outcome.

¶ 27   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 plaintiff’s risk of the resulting

  harm or substantially diminished the chance of recovery.” 710 P.2d

  at 1155. On review, the supreme court did not reach the issue of

  whether the substantial factor theory was a cognizable, less

  stringent standard of causation because the court concluded that

  the plaintiff had met her burden to show but-for causation. Sharp,

  741 P.2d at 720.


                                      9
¶ 28     However, as the Tenth Circuit explained in June, the

  “substantial factor” and but-for standards of causation are not

  alternatives; but-for causation is a prerequisite to establishing the

  substantial factor test. 577 F.3d at 1241.

¶ 29     In explaining the substantial factor test, section 432 of the

  Restatement (Second) of Torts, which the Sharp division did not

  consider, imposes a causation requirement at least as stringent as

  the but-for standard consistently applied by our supreme court:

              (1) Except as stated in Subsection (2), the
              actor’s negligent conduct is not a substantial
              factor in bringing about harm to another if the
              harm would have been sustained even if the
              actor had not been negligent.

              (2) If two forces are actively operating, one
              because of the actor’s negligence, the other not
              because of any misconduct on his part, and
              each of itself is sufficient to bring about harm
              to another, the actor’s negligence may be
              found to be a substantial factor in bringing it
              about.

  Thus, “the allegedly negligent conduct of the defendant must

  satisfy” a but-for test “before it can even qualify as a substantial

  factor under the other Restatement sections.” Reigel, 292 P.3d at

  987.




                                     10
¶ 30    Regardless of Lorenzen’s theory of liability — that the thirteen-

  day delay between the request for authorization and the surgery

  caused his impairment or increased his risk of permanent

  impairment or aggravated a preexisting condition — he had to show

  that (1) but for the delay, the injury (or the increased risk or the

  aggravation) would not have occurred; or (2) the delay was a

  necessary component of a causal set that would have caused the

  injury. Id.

   B.    The District Court Did Not Abuse Its Discretion in Excluding
             Lorenzen’s Expert Testimony Concerning Causation

¶ 31    Lorenzen next contends that, even if he had to prove but-for

  causation, he presented expert evidence that the thirteen-day delay

  in performing surgery caused his permanent impairment, and the

  district court erred in excluding the evidence under CRE 702.

                       1.   The Experts’ Testimony

                              a.    Dr. Biggs

¶ 32    Dr. Biggs performed Lorenzen’s surgery. He testified at his

  deposition that five days of the two-week delay — from February 20,

  when he first saw Lorenzen, to February 25, when he performed the

  surgery — did not have “any detrimental effect [o]n the outcome.”



                                     11
¶ 33    When asked about his anticipated testimony concerning the

  effect of the delay in surgery on Lorenzen’s nerve damage, Dr. Biggs

  testified:

               A: If you wait too long, you can end up with a
               permanent injury. Now, the waiting too long
               part is always the question mark. We don’t
               have good data to tell us what’s too long and
               what’s not.

               ....

               Q: “[Your report says that you] will testify that
               it was not helpful to the patient to wait two
               weeks for surgery.” What will you say about
               that?

               A: That’s a tough one. You know, that’s kind
               of the sooner the better sort of thing, but
               there’s no proof in the literature about that.

               Q: “The wait from February 10, 2014, to
               February 25, 2014, was costly to the patient’s
               nerve function.” What would your testimony
               be about that?

               A: It’s maybe in hindsight we can say that he’s
               had no nerve functional recovery or not much.
               But it’s hard to say that from – at the time of
               the injury.

               Q: It’s also hard to attribute that to a two-week
               delay in surgery, isn’t it?

               A: Yes.

               ....



                                      12
             Q: And also, in his specific case, can you really
             say that having surgery two weeks earlier
             would have resulted in a better outcome?

             ....

             A: For him specifically, no, we can’t say that.

¶ 34   With respect to what he referred to as the “sooner is better”

  theory, Dr. Biggs recalled that he had seen articles that “supported

  doing surgery sooner rather than later with progressive neurologic

  injuries.” However, he acknowledged that he did not know of any

  “good studies” to support the theory and that the “sooner is better”

  theory “may be more our dogma.”

¶ 35   When asked if “Lorenzen’s best chance of a recovery from this

  [injury] was early or shortly after his injury,” Dr. Biggs replied, “I’m

  not sure I can answer that. . . . I don’t know.” He explained that

  “there’s just no way of saying whether the nerve injury happened at

  the time of the injury or whether it happened during the first three

  weeks. The vast majority of people, if you leave the pressure on

  there for too long, it will continue to get worse and cause more of an

  issue.” Dr. Biggs was asked whether that had “happen[ed] for Mr.

  Lorenzen?” He replied, “I don’t know.”

                             b.   Dr. Stefanon


                                     13
¶ 36   Dr. Stefanon was Lorenzen’s initial treating doctor. She

  testified that the majority of people with herniated discs “tend to

  recover without surgery,” and that in most cases (even where

  patients showed symptoms similar to Lorenzen’s), it was reasonable

  to monitor a patient for four to six weeks prior to performing

  surgery.

¶ 37   Dr. Stefanon opined that “the longer the pressure is on the

  nerve, the increased risk for damage to the nerve,” but she agreed

  with Dr. Biggs that there is no “good data” on “what’s too long and

  what is not.” She testified that surgery “sooner is better” in a

  “progressive situation,” but she could not cite any peer-reviewed

  articles that would support that position. She looked for articles

  about the timing of surgery — “when nerve root damage was likely

  to occur” or whether “there was a neurological level that generally

  people were sent to surgery” — but she “did not find anything.”

¶ 38   Like Dr. Biggs, she could not say one way or the other whether

  a three-week delay in undergoing surgery would have had any

  adverse effect on the outcome. When asked if she “believe[d] that

  some of the damage that Mr. Lorenzen currently faces could have




                                    14
  been headed off with a more timely surgery,” she replied, “I would

  be speculating.”

                             c.   Dr. Martin

¶ 39   Dr. Martin is a physiatrist who treated Lorenzen after his

  surgery. She testified that she had reviewed articles indicating that

  early surgical intervention was most helpful for “someone that has

  moderate weakness” after injury and that she would place Lorenzen

  in the “moderate” category. Thus, she opined that surgery

  performed sooner would have been better in Lorenzen’s case.

¶ 40   At the same time, she agreed with Dr. Biggs that it was

  difficult to know whether the thirteen-day delay affected Lorenzen’s

  surgical outcome because any conclusion would be based on the

  “sooner the better” theory for which “there is no proof in the

  literature.” She also agreed that waiting too long for surgery could

  result in permanent nerve damage but that there was no good data

  to establish “what is too long and what is not.”

¶ 41   When asked whether Lorenzen would be “better today if

  surgery had been performed earlier,” she responded, “The hope

  would be that there would be more rapid and more complete

  myotomal recovery, so that he would have more strength.” But she


                                    15
  acknowledged that any prediction in that respect was “just an

  assumption,” and that she could not rule out that Lorenzen “would

  have had the same outcome if surgery had occurred earlier.”

¶ 42   Dr. Martin summed up her causation theory in this way: “The

  best way to put it is time is nerve. The longer you wait, the more

  potential nerve damage and changes that can occur.”

                              d.   Dr. Beard

¶ 43   Dr. Beard testified that Lorenzen’s nerve impairment could

  have been caused by (1) the delay in surgery; (2) an injury during

  the surgical procedure; or (3) the original disc herniation on

  February 3, 2014.

¶ 44   He agreed with Dr. Biggs that the five-day delay in scheduling

  the surgery (between February 20 and 25, 2014) would not have

  had any adverse effect on its outcome, but, for reasons he did not

  explain, he theorized that the two-day delay in submitting the

  request for authorization (between February 10 and 12, 2014) might

  have resulted in increased nerve damage.

¶ 45   Dr. Beard stated that “had [Lorenzen] been able to receive

  surgical intervention in a more timely fashion, it is entirely possible

  that the earlier intervention might have led to less long-term


                                    16
  damage,” though he admitted that it was also possible that the

  surgery “wouldn’t have done any good at all,” and that even if the

  surgery “had been performed on February 6, 2014,” it was possible

  that Lorenzen “could have ended up with the same outcome as he

  has now.”

¶ 46   According to Dr. Beard, “there is pretty good data out there” to

  support a “sooner is better” theory: “[T]here are many articles that

  talk about the shorter the duration of the palsy, the less likely there

  is to be permanent nerve deficit.” On the basis of those articles, he

  believed that “if surgery had been performed sooner, it would have

  been better than surgery performed later.” As he explained it:

              There are some things which kind of
              inherently, common sensibly seem to make
              sense. And I would postulate that most of the
              doctors that are involved in this case, if they
              walked into a doctor’s office with as profound
              of a foot drop as Mr. Lorenzen had, they would
              want to have that piece of disc taken off their
              nerve root.

              It is a reasonable thing to do. Because it is
              nonanatomic. There was clearly a change in
              the anatomy. And by changing that anatomy
              faster, we make it more likely that the nerve
              can recover.

              Now, if you want to say what is that timing
              down to the day and the moment, I can’t give it


                                    17
             to you. I would agree that there is going to be
             a substantial error rate there. But common
             sense would lead us to believe that the faster
             we reverse the abnormal anatomy, the more
             likely it is that the nerve can have a chance to
             recover.

             Are there going to be those that aren’t going to
             recover? Absolutely, I grant you that. Is Mr.
             Lorenzen one of those? We’ll never know.

                               2.   CRE 702

¶ 47   CRE 702 governs the admissibility of expert testimony. It

  provides as follows: “If scientific, technical, or other specialized

  knowledge will assist the trier of fact to understand the evidence or

  to determine a fact in issue, a witness qualified as an expert by

  knowledge, skill, experience, training, or education, may testify

  thereto in the form of an opinion or otherwise.”

¶ 48   To be admissible under Rule 702, scientific evidence, including

  medical evidence, must be both reliable and relevant. People v.

  Ramirez, 155 P.3d 371, 378 (Colo. 2007).

¶ 49   A trial court determines whether the testimony is reliable and

  relevant by considering whether (1) the scientific principles

  underlying the testimony are reasonably reliable; (2) the expert is

  qualified to opine on such matters; (3) the expert testimony will be



                                     18
  helpful to the jury; and (4) the evidence satisfies CRE 403. Estate of

  Ford v. Eicher, 250 P.3d 262, 266 (Colo. 2011).

¶ 50   The court’s reliability inquiry should be broad in nature and

  consider the totality of the circumstances of the specific case.

  Ramirez, 155 P.3d at 378. The standard for admissibility is

  reliability, not certainty. Estate of Ford, 250 P.3d at 266. Thus, the

  proponent need not prove that the expert is indisputably correct.

  Ramirez, 155 P.3d at 378. Rather, reliability analysis under Rule

  702 hinges on whether the scientific principles the expert employed

  are grounded in the methods and procedures of science. Estate of

  Ford, 250 P.3d at 267. If so, the testimony meets the reliability

  requirement.

¶ 51   A court may reject expert testimony that relies on bare

  assertions, subjective belief, or unsupported speculation. Id. The

  danger of speculative opinion testimony that has no sound scientific

  basis is that “what appears to be scientific testimony but is really

  not may carry more weight with the jury than it deserves.” Ramirez,

  155 P.3d at 379.

¶ 52   To determine relevancy under CRE 702, the court should

  consider whether the expert testimony would be useful to the fact


                                    19
  finder. People v. Shreck, 22 P.3d 68, 77 (Colo. 2001). Usefulness

  hinges on whether there is a logical relation between the proffered

  testimony and the factual issues involved in the case. Ramirez, 155

  P.3d at 379. In determining whether the testimony will be helpful

  to the fact finder, the court should consider, among other things,

  the elements of the particular claim and the scope and content of

  the opinion itself. Id.

        3.    The District Court’s Ruling and Standard of Review

¶ 53   The district court found that the “sooner is better” theory of

  causation was not “sufficiently grounded in reliable science,” had

  “no prior history of adoption or consideration or approval by other

  courts,” and had not been “subjected to sufficient peer review or

  study” to allow the court to assess the theory’s reliability. Thus, the

  expert evidence would require the jury to “speculate as to whether

  and to what extent the delay . . . caused the current presentation by

  Mr. Lorenzen.”

¶ 54   The district court concluded that the experts’ testimony would

  not be helpful to the jury in evaluating whether the thirteen-day

  delay between Lorenzen’s request for authorization of surgery and

  the surgery caused his impairment.


                                    20
¶ 55    In civil cases, where the constitutional right to present a

  defense is not implicated, we review the district court’s decision to

  exclude expert testimony for an abuse of discretion. Core-Mark

  Midcontinent, Inc. v. Sonitrol Corp., 2012 COA 120, ¶ 29. We will not

  disturb the decision unless it is manifestly erroneous or based on

  an incorrect legal standard. Id. Even where a ruling excluding

  expert testimony is “outcome determinative” and the basis for a

  grant of summary judgment, our review is no less deferential. Gen.

  Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997).

   4.   The Experts’ Theory of Causation Does Not Satisfy CRE 702’s
                  Reliability and Relevancy Requirements

¶ 56    Lorenzen summarizes his experts’ theory of causation as

  follows: “Lorenzen’s treating physicians all agree that when nerve

  compression lasts too long[,] it can result in permanent neurological

  injury[;] therefore surgery must be performed sooner rather than

  later.” Thus, Lorenzen says, “[t]here is no basis to categorically

  reject as a matter of law, the indications for surgery, including the

  well-recognized principle in medicine that ‘sooner is better than

  later’ for treatment of acute disc herniations causing nerve

  compression.”



                                     21
¶ 57   But Lorenzen has to prove that the thirteen-day delay in his

  case caused the “specific ailment of which [he] complain[s]”— nerve

  damage resulting in permanent impairment to his right foot. June,

  577 F.3d at 1245-46.

¶ 58   As Dr. Beard explained, the “sooner is better than later” theory

  amounts to a common sense and universal axiom that expedited

  treatment is preferable to delayed treatment, particularly in cases

  involving a disc herniation causing nerve compression. That axiom

  is undoubtedly sound, but it is not a theory of causation. See

  McDowell v. Brown, 392 F.3d 1283, 1299-1300 (11th Cir. 2004)

  (“[T]he notion of early treatment is well within common knowledge

  that would be obvious to the average juror, but [it] has nothing to

  do with causation.”). A general principle or axiom does not explain

  the cause of an injury in a particular case. Id. at 1300 (“[T]his ‘the

  earlier, the better’ theory adds nothing absent some testimony

  connecting the delay to the causation or aggravation of an injury.”).

¶ 59   Tomlinson v. Collins, No. 2:09-cv-0125, 2010 WL 4317030

  (S.D. Ohio Oct. 25, 2010) (unpublished report and

  recommendation), adopted, 2011 WL 478835 (S.D. Ohio Feb. 7,

  2011) (unpublished opinion), is instructive. There, the plaintiff


                                    22
  injured his neck while he was an inmate in a state prison. Though

  he complained to various prison staff about his deteriorating

  condition, he did not receive treatment until his release, nearly

  seven months after the injury. By then, he was diagnosed with a

  displaced disc with compression and damage to the spinal cord.

  Surgery alleviated some of his symptoms but left him with

  numbness or pain in his hands, forearm, and neck. Id. at *1-3.

¶ 60   Plaintiff offered two medical experts to establish causation.

  The first doctor testified that he believed “that prolonged neural

  compression is more likely to result in permanent defect than had

  the patient been diagnosed and treated sooner.” Id. at *6. The

  second doctor testified, similarly, that “the delay in surgery

  certainly could lead to residuals that may have been prevented by

  earlier surgical intervention.” Id.

¶ 61   The defendants moved to strike the experts’ testimony under

  Fed. R. Evid. 702, which is substantially similar to CRE 702. The

  district court granted the motion. Characterizing the experts’

  theories as a variation of “the earlier, the better” theory rejected in

  McDowell, the court explained that the problem with this theory is

  that it does not go to causation:


                                        23
               The general proposition that prolonged neural
               compression is more likely to result in a
               permanent defect than had a patient been
               diagnosed and treated sooner says nothing
               about whether the delay in this specific
               plaintiff’s diagnosis and treatment actually
               caused his residual symptoms, and that — not
               the more general relationship between delays
               in treatment and the presence of preventable
               residual injury — is what is at issue here. A
               jury would not be entitled to find on the basis
               of these opinions that the delay in treating
               [plaintiff’s] medical condition actually caused
               him any harm.

  Id. at *7.

¶ 62    We agree with McDowell, Tomlinson, and the other courts that

  have evaluated the theory 4 and have concluded that, on its own, a




  4 See Estate of Anderson v. Strohman, Civ. A. No. GLR-13-3167,
  2016 WL 4013638, at *9 (D. Md. July 27, 2016) (excluding as
  unreliable the plaintiff’s expert’s theory of causation that “earlier
  treatment is preferable to later treatment”); Dishman v. Wise, Civ. A.
  No. 7:08-cv-45 (HL), 2009 WL 1938968, at *5 (M.D. Ga. July 7,
  2009) (a “mere guess” that earlier treatment would have improved
  plaintiff’s condition “simply fails the tests for expert opinion”
  (quoting McDowell v. Brown, 392 F.3d 1283, 1301 (11th Cir.
  2004))); Maudsley v. Pederson, 676 N.W.2d 8, 14 (Minn. Ct. App.
  2004) (“The conclusory statements that generally earlier treatment
  results in better outcomes” fail to explain “how and why”
  defendant’s delay in treatment caused plaintiff’s injury.).

  Two cases cited by Lorenzen — O’Neill v. Van Herpe, 956 F.2d 263
  (4th Cir. 1992) (per curiam) (unpublished table decision), and


                                     24
  principle that early treatment is preferable to later treatment is not

  a viable theory of causation.

¶ 63   That is not to say, as Lorenzen seems to suggest, that nothing

  short of expert testimony identifying the precise moment that

  Lorenzen’s nerve damage became irreparable is sufficient under

  Rule 702. Instead, what is necessary is evidence that would allow a

  jury to find that, but for the delay, Lorenzen would not have

  suffered the impairment.

¶ 64   The line between impermissible speculation and reliable

  medical opinion is illustrated in Bentley v. Highlands Hospital Corp.,

  Civ. No. 15-97-ART, 2016 WL 7446910 (E.D. Ky. Dec. 27, 2016), on

  which Lorenzen primarily relies. The plaintiff in that case arrived at

  the emergency room with symptoms suggesting a serious problem

  with her spinal cord, but the emergency room doctor misdiagnosed




  Prosser v. Nagaldinne, 927 F. Supp. 2d 708 (E.D. Mo. 2013) — do
  not address the reliability of the “sooner is better than later” theory.
  And, contrary to Lorenzen’s argument, the special concurrence in
  Adams v. Laboratory Corp. of America, 760 F.3d 1322 (11th Cir.
  2014) (per curiam), did not “back away from” McDowell, 392 F.3d
  1283. Adams involved expert testimony on the standard of care,
  not on causation, and the concurrence cited McDowell with
  approval.

                                     25
  her and discharged her. Id. at *1. Her condition worsened, and by

  the time she arrived at a second hospital later the next day, she had

  lost motor control in both legs and was having trouble breathing.

  Id. After discovering inflammation on the plaintiff’s spinal cord,

  doctors at the second hospital treated her with intravenous

  steroids, which stopped the symptoms from progressing but did not

  reverse the loss of motor control. The plaintiff suffered permanent

  paralysis from the chest down. Id.

¶ 65   She sued the first hospital and the emergency room doctor for

  negligently failing to diagnose and treat her emerging neurological

  condition. Id. at *2. Her experts, two doctors, opined that earlier

  administration of steroids could have prevented her paralysis. Id.

  The defendants moved to exclude the testimony as too speculative

  because, while administration of intravenous steroids was

  indisputably the proper treatment, there was no evidence, they

  said, that the injury would have been avoided if the drugs had been

  administered earlier. Id. at *4.

¶ 66   The district court distinguished the proposed expert testimony

  from the “generic medical testimony that ‘earlier treatment is

  better’” that has been routinely rejected by courts. Id. at *9. The


                                     26
  district court acknowledged that evidence of the anti-inflammatory

  properties of steroids would have been insufficient to justify the

  doctors’ conclusions that steroids would have helped the plaintiff.

  Id. at *7. But the district court concluded that the doctors could

  testify more precisely — based on reliable medical principles,

  scientific literature, and their clinical experiences — that (1) if a

  patient has motor control or sensory function, the corresponding

  nerves have not yet been fully destroyed and there is more function

  left to preserve; (2) patients treated with intravenous steroids while

  they still have motor control and/or sensation overwhelmingly have

  good or fair outcomes; (3) they examined the plaintiff and her

  medical records and observed that she still had motor control and

  sensation in her lower extremities when she left the first hospital;

  and (4) the record demonstrated that intravenous steroids did help

  the plaintiff, but they came too late to save much of her

  neurological function. Id. at *6-7.

¶ 67   As the court explained in Bentley, the doctors started with the

  general premise that steroids combat inflammation and they

  connected that premise to a conclusion through a series of

  principles and inferences based on their medical knowledge


                                     27
  (informed by the scientific literature), their clinical experiences, and

  their review of the medical records. They observed that the plaintiff

  had inflammation to her spinal cord; inflammation damages nerve

  tissue; steroids counteract the inflammatory process by inhibiting

  the production of white blood cells; if introduced early enough,

  steroids can accomplish that task before the immune system

  pushes the nerve cells beyond the point of repair; and “early

  enough” means while the patient still has motor control or sensory

  function, an indication the patient’s nerves are not yet destroyed.

  The doctors observed that the plaintiff still had motor control or

  sensory function when she left the first hospital, as evidenced by

  her ability to walk, and, therefore, the introduction of intravenous

  steroids at the first hospital would more likely than not have

  minimized the plaintiff’s paralysis. Based on these facts, the

  district court in Bentley ruled that the doctors had “good grounds”

  for reaching their conclusion regarding causation. Id. at *9.

¶ 68   In contrast, Lorenzen’s expert testimony left significant gaps

  between his premise that nerve compression should be alleviated by

  prompt surgery and his conclusion that it is more likely than not

  the thirteen-day delay in undergoing surgery caused his permanent


                                     28
  nerve damage. Unlike the doctors in Bentley, Lorenzen’s experts

  did not have “good grounds” to opine, with a reasonable degree of

  certainty, that surgery at any point before February 25, 2014,

  would have been “early enough” to prevent or minimize Lorenzen’s

  impairment.

¶ 69   Dr. Biggs, the surgeon, admitted that “there’s no way of

  knowing if [Lorenzen’s] permanent nerve injury happened at the

  time of his injury or it happened at day 2 or day 6 or day 12 or day

  whatever it was, 14, 16, 18.” Thus, he could not say when surgery

  would have been “early enough” to make any difference at all, and

  neither could any of the other doctors.

¶ 70   Testimony does not assist the trier of fact unless there is a

  “justified scientific relationship” (a “fit”) between the opinion

  testimony and the facts of the case. McDowell, 392 F.3d at 1299.

  There is no “fit” where “a large analytical leap must be made

  between the facts and the opinion.” Id.

¶ 71   The cited medical literature proffered by Lorenzen did not fill

  in the analytical gaps. The district court found that the proffered

  articles were “not factually consistent with the issues in this case”




                                     29
  and did not support a conclusion that a thirteen-day delay in

  undergoing surgery was likely to cause irreparable nerve damage.

¶ 72   Lorenzen directs us to two of the articles representative of

  those submitted to the district court: a 2014 article discussing the

  results of a study comparing surgical versus nonsurgical treatment

  for lumbar disc herniation (the SPORT study), Jon D. Lurie et al.,

  Surgical Versus Nonoperative Treatment for Lumbar Disc Herniation,

  39 SPINE 3 (2014), and a 2002 article discussing the results of a

  study comparing recovery outcomes of patients who underwent

  surgery somewhere between a few weeks and several months after

  the initial injury (the Postacchini article), Franco Postacchini et al.,

  Rediscovery of Motor Deficits After Microdiscectomy for Lumbar Disc

  Herniation, 84-B J. Bone & Joint Surgery 1040 (2002).

¶ 73   The SPORT study does not support any theory of causation

  relevant to this case. That patients who undergo surgery do better

  than those who receive nonsurgical treatment is not probative

  because Lorenzen underwent surgery.

¶ 74   The Postacchini article is more on point. Of the patients in

  that study who exhibited severe deficits before surgery, those who

  underwent surgery most quickly — within one month of the initial


                                     30
  injury — had a complete recovery, whereas most patients who

  underwent surgery after seventy days from the date of injury had

  an incomplete recovery of muscle strength. But Lorenzen

  underwent surgery within a month of his initial injury, so,

  according to the study, the timing of his surgery should have helped

  him. What Lorenzen needed to support his theory of causation was

  a study or article showing that surgery performed earlier than his

  surgery led to better outcomes in some group of patients. But he

  did not submit any such study.

¶ 75   We therefore discern no abuse of discretion in the district

  court’s determination that the cited articles did not render the

  experts’ testimony reliable.

¶ 76   In sum, we conclude that the district court did not abuse its

  discretion in disallowing the experts’ testimony because it would

  not have assisted the jury in determining whether Pinnacol’s delay

  in authorizing surgery caused Lorenzen’s permanent impairment.

                  III.   Entry of Judgment for Pinnacol

¶ 77   Lorenzen concedes that, without his expert testimony, he

  cannot prove that Pinnacol’s delay in approving surgery caused his

  physical impairment or damages related to the impairment. Still,


                                    31
  he contends that the district court erred in entering judgment for

  Pinnacol because he retained a separate claim for noneconomic

  damages based on the anxiety, stress, and inconvenience

  associated with Pinnacol’s initial denial of benefits.

¶ 78   Pinnacol argues that Lorenzen pleaded a single claim for

  damages based on Pinnacol’s bad faith delay in authorizing surgery,

  and that the complaint did not provide notice of any other claim for

  noneconomic damages.

¶ 79   Although the district court did not address this issue, whether

  Lorenzen pleaded a claim for noneconomic damages unrelated to

  his physical injury is a question of law that we review de novo. See

  Eliminator, Inc. v. 4700 Holly Corp., 681 P.2d 536, 539 (Colo. App.

  1984). Thus, a remand is unnecessary.

¶ 80   The purpose of a complaint is to provide the defendant with

  “reasonable notice of the general nature of the matter presented.”

  DiChellis v. Peterson Chiropractic Clinic, 630 P.2d 103, 105 (Colo.

  App. 1981). If the complaint identifies the transaction that forms

  the basis of the plaintiff’s claim, it provides reasonable notice.

  Denny Constr., Inc. v. City & Cty. of Denver, 170 P.3d 733, 736

  (Colo. App. 2007), rev’d on other grounds, 199 P.3d 742 (Colo.


                                     32
  2009). However, while the complaint need not list all examples of

  defendant’s misconduct, it must at least give the defendant

  sufficient notice of the basis of the claim so that the defendant can

  use the discovery rules to prevent any surprise at trial. See

  Southerland v. Argonaut Ins. Co., 794 P.2d 1102, 1105-06 (Colo.

  App. 1990).

¶ 81   Here, even construing Lorenzen’s complaint liberally and

  resolving all doubts in his favor, we cannot conclude that it

  contained a claim for noneconomic injuries unrelated to the

  physical impairment. Denny Constr., 170 P.3d at 736.

¶ 82   The complaint 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,

  including motorcycle trips with his wife and friends.” Lorenzen

  identified his “damages and losses” as “permanent physical

  impairment; disfigurement; unnecessary pain and suffering and

  emotional distress; unnecessary financial hardship; and the

  possibility of future economic losses” based on possible

  unemployment. The complaint did not allege that Lorenzen


                                     33
  suffered stress, anxiety, or distress for some reason other than his

  physical impairment, including the uncertainty of reimbursement of

  benefits.

¶ 83   Nor did Lorenzen disclose any independent claim for

  noneconomic damages during discovery. At his deposition,

  Lorenzen explained that he had been injured by the denial of his

  claim in that “it put off the surgery. It put off any recovery [he]

  had.” He testified that Pinnacol’s handling of the claim was “wrong”

  and left him “very frustrat[ed]” and “angry.”

¶ 84   Lorenzen intended to introduce evidence concerning the

  impact of his physical impairment on “the daily activities of life,

  including work and leisure activities.” Lorenzen’s wife submitted a

  statement discussing Lorenzen’s physical and emotional changes

  since his injury. She reported that he was unable to enjoy their

  walks, hikes, and runs; he stumbled frequently, even on flat

  ground; and his impairment made him angry, frustrated, and

  depressed.

¶ 85   We conclude that Lorenzen pleaded a single claim for

  economic and noneconomic damages based on his physical

  impairment. And because he cannot prove that Pinnacol’s conduct


                                     34
  caused his physical impairment, it follows that he also cannot prove

  that Pinnacol is responsible for the noneconomic damages resulting

  from his physical impairment.

¶ 86   Accordingly, we discern no error in the court’s dismissal of

  Lorenzen’s complaint and entry of judgment for Pinnacol.

                 IV.   Lorenzen’s Additional Contentions

¶ 87   In light of our disposition, we need not address Lorenzen’s

  challenges to the district court’s discovery ruling and its order

  imposing costs.

                             V.    Conclusion

¶ 88   The judgment is affirmed.

       JUDGE TAUBMAN and JUDGE ROTHENBERG concur.




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