     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
                                                                 May 23, 2019

                                2019COA81

Nos. 18CA0049 & 18CA0760, Scholle v. Delta Air Lines, Inc. —
Labor and Industry — Workers’ Compensation; Damages —
Collateral Source Rule

     A division of the court of appeals considers a case in which the

plaintiff was injured during the course of his employment and he

sued the third-party tortfeasor. Before filing the action, the plaintiff

had received workers’ compensation benefits covering some of his

medical expenses arising from the incident. By statute, a medical

provider could not collect payment for medical expenses beyond

those paid by the plaintiff’s workers’ compensation insurer. And,

before trial, the defendant here had extinguished the insurer’s

subrogated interest in the amounts paid by paying off the insurer’s

claim for those damages.
     The division holds that, even in light of those facts, the

collateral source rule barred evidence of the medical expenses paid

by the workers’ compensation insurer, and the plaintiff could

present evidence of the higher medical expenses actually billed by

his medical providers. At most, the defendant, by virtue of its

settlement with the insurer, may receive a post-trial setoff against

any damages awarded to the plaintiff. To hold otherwise would

allow the defendant to benefit from the fact that the plaintiff was

covered by workers’ compensation insurance, contrary to the

collateral source rule.

     Because the trial court erroneously admitted evidence of the

medical expenses paid by the workers’ compensation insurer and

erroneously excluded evidence of any greater amount of past

medical expenses, the division reverses the judgment in part and

remands for a new trial on past medical expenses.

     The separate opinion concludes that the collateral source rule

does not apply under the facts here.
COLORADO COURT OF APPEALS                                           2019COA81


Court of Appeals Nos. 18CA0049 & 18CA0760
City and County of Denver District Court Nos. 14CV32213 & 14CV32268
Honorable Robert L. McGahey, Judge
Honorable Karen L. Brody, Judge


William Scholle,

Plaintiff-Appellee and Cross-Appellant,

v.

Delta Air Lines, Inc.,

Defendant-Appellant and Cross-Appellee.


            JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                  Division VI
                        Opinion by JUDGE NAVARRO
                              Welling, J., concurs
                Richman, J., concurs in part and dissents in part

                           Announced May 23, 2019


Bendinelli Law Firm, P.C., Marco F. Bendinelli, Blaine L. Milne, Westminster,
Colorado, for Plaintiff-Appellee and Cross-Appellant

Treece Alfrey Musat P.C., Michael L. Hutchinson, Carol L. Thomson, Kathleen
J. Johnson, Denver, Colorado, for Defendant-Appellant and Cross-Appellee
¶1    When a plaintiff sues a defendant in tort for damages

 sustained due to the defendant’s conduct, the collateral source rule

 generally forbids admitting evidence of payments for those damages

 made to the plaintiff by a collateral source such as an insurance

 company. For instance, evidence of the amount of the plaintiff’s

 medical expenses paid by an insurer is not admissible; instead, the

 plaintiff may submit, as a measure of damages, evidence of a higher

 amount of medical expenses billed by the medical provider.

¶2    But what if (1) the plaintiff was insured by workers’

 compensation insurance, and by statute a medical provider could

 not collect payment for medical expenses beyond those paid by the

 workers’ compensation insurer; and (2) the defendant, before trial,

 extinguished the insurer’s subrogated interest in the amounts paid

 by paying off the insurer’s claim for those damages? We hold that

 the collateral source rule applies all the same — evidence of the

 amounts paid by the insurer is not admissible at trial, but evidence

 of the amounts billed is admissible. At most, the defendant, by

 virtue of its settlement of the insurer’s subrogated claim, may

 receive a post-trial setoff against damages awarded to the plaintiff.




                                   1
¶3    In this case, however, the damages awarded to plaintiff

 William Scholle were reduced during trial through evidence of the

 amounts his insurer paid to his medical providers and reduced

 post-trial via a setoff in the amount of defendant Delta Air Lines,

 Inc.’s settlement with the insurer. As a result, Scholle ultimately

 recovered nothing in economic damages. Because admitting

 evidence of the amounts paid by the insurer was error, we reverse

 the judgment in part and remand for a new trial, as limited by the

 following discussion.

                             I.   Overview

¶4    This action arises from a luggage tug collision at Denver

 International Airport. In 2012, Scholle, a United Airlines employee,

 was driving a luggage tug in the course of his employment. Scholle

 was stopped when Daniel Moody, a Delta employee also driving a

 luggage tug, collided with Scholle. Scholle sustained injuries and

 missed work.

¶5    United, a self-insured employer under Colorado’s workers’

 compensation system, paid for Scholle’s medical expenses and

 some of his lost wages. To the extent of those payments, United




                                   2
 was subrogated to Scholle’s rights to recover economic damages

 from Delta and Moody for causing Scholle’s injuries.

¶6    In 2014, United sued Delta and Moody to recover the amounts

 United had paid to or on behalf of Scholle. Shortly thereafter,

 Scholle also sued Delta and Moody to recover for injuries related to

 the tug collision. The trial court consolidated the actions.

¶7    Delta eventually settled United’s claim by paying United

 $328,799.16, and the court dismissed United’s case with prejudice.

 Scholle’s claims against Moody were later dismissed with prejudice

 as well, leaving only Scholle and Delta as parties. Delta admitted

 liability but disputed Scholle’s claimed damages; so the case went

 to trial on damages.

¶8    In 2016, a jury returned a damages verdict for Scholle totaling

 approximately $1.5 million. The court, however, granted Delta’s

 motion for a new trial due to misconduct by Scholle’s attorney.

¶9    The case went to trial again in 2017, this time without a jury

 and before a new judge. The court considered evidence of the

 amounts paid by United for Scholle’s medical treatment; the court

 excluded evidence of the higher amounts billed by medical

 providers. The court awarded Scholle $259,176, including


                                   3
  $194,426 in economic damages.1 The court later entered a setoff

  order reducing Scholle’s economic damages award by the amount

  that Delta had already paid to settle United’s claim, effectively

  reducing the amount owed to Scholle for economic damages to zero.

¶ 10   In case number 2018CA0049 (the merits appeal), each party

  challenges various rulings related to the damages judgment. In

  case number 2018CA0760 (the costs appeal), Scholle contests a

  post-trial order denying him costs relating to two expert witnesses

  struck by the trial court, a ruling at issue in the merits appeal. We

  consolidated the appeals.

¶ 11   Regarding the merits appeal, we reverse the damages

  judgment insofar as it relates to Scholle’s past medical expenses

  because the trial court misapplied the collateral source rule.

  Because this evidentiary error affected only the medical expenses

  portion of the damages award, we affirm the judgment insofar as it

  pertains to (1) economic damages for lost wages and

  (2) noneconomic damages.




  1 Scholle’s award consisted of $126,000 in past lost wages, $68,426
  in past medical charges, and $64,750 in noneconomic losses.

                                     4
¶ 12   We affirm the order granting a new trial as well as various

  pre-trial rulings addressing issues that are likely to recur on

  remand. Because we remand for a new trial as to past medical

  expenses, we decline to decide any post-trial issues raised by the

  parties, including any claim raised in the costs appeal.

         II.   Evidence of Medical Expenses Paid versus Billed

¶ 13   Scholle contends that the trial court erred by admitting

  evidence of the amount of medical expenses paid by his workers’

  compensation insurer (United), rather than the amounts billed by

  his medical providers. He says that the payments were collateral

  source benefits and, therefore, the pre-verdict evidentiary

  component of the collateral source rule prohibited their admission

  into evidence.

¶ 14   Delta responds that the trial court properly concluded that the

  collateral source rule did not apply because Delta’s settlement with

  United meant that the insurance payments no longer constituted

  payments from a collateral source. Rather, Delta effectively became

  a source of those payments. In other words, Delta says that, by

  extinguishing United’s interest in recouping the insurance

  payments, Delta paid compensation for, or contributed to, the


                                     5
  source of those payments. Further, Delta argues that the court

  properly excluded evidence of the amounts billed by Scholle’s

  medical providers because he was not liable for those amounts.

¶ 15   We agree with Scholle that the trial court misconstrued

  Colorado law.

                          A.        Standard of Review

¶ 16   “We review a trial court’s evidentiary rulings for an abuse of

  discretion.” Sunahara v. State Farm Mut. Auto. Ins. Co., 2012 CO

  30M, ¶ 12. A court abuses its discretion if its decision is based on

  an incorrect legal standard. Id. We review de novo whether the

  court applied the correct legal standard. Id.

                               B.     Relevant Law

                     1.    The Collateral Source Rule

¶ 17   Colorado’s collateral source rule consists of two components:

  (1) a post-verdict setoff rule, codified at section 13-21-111.6, C.R.S

  2018; and (2) a pre-verdict evidentiary component, established by

  common law and codified at section 10-1-135(10), C.R.S. 2018.

  Sunahara, ¶ 13. The first component requires a trial court to set off

  tort verdicts by the amount of certain collateral source payments

  received by the plaintiff unless the payments were made because of


                                          6
  a contract entered into and paid for on the plaintiff’s behalf. § 13-

  21-111.6.

¶ 18   The second component bars evidence of a plaintiff’s receipt or

  entitlement to benefits received from a collateral source, most often

  an insurance company, “because such evidence could lead the

  fact-finder to improperly reduce the plaintiff’s damages award on

  the grounds that the plaintiff already recovered his loss from the

  collateral source.” Wal-Mart Stores, Inc. v. Crossgrove, 2012 CO 31,

  ¶¶ 12, 20. “A plaintiff’s insurer is a collateral source because it is a

  third party wholly independent of the tortfeasor to which the

  tortfeasor has not contributed.” Id. at ¶ 25.

¶ 19   The rule’s purpose is to prevent a tortfeasor from benefitting,

  in the form of reduced liability, from compensation in the form of

  money or services that the victim may receive from a third-party

  source. Volunteers of Am. Colo. Branch v. Gardenswartz, 242 P.3d

  1080, 1083 (Colo. 2010). Our supreme court has explained that, if

  either party is to receive a windfall, “the rule awards it to the

  injured plaintiff who was wise enough or fortunate enough to secure

  compensation from an independent source, and not to the

  tortfeasor, who has done nothing to provide the compensation and


                                      7
  seeks only to take advantage of third-party benefits obtained by the

  plaintiff.” Id.

¶ 20    In 2010, the General Assembly codified the collateral source

  rule’s pre-verdict evidentiary component in section 10-1-135(10)(a),

  which provides in pertinent part: “The fact or amount of any

  collateral source payment or benefits shall not be admitted as

  evidence in any action against an alleged third-party

  tortfeasor . . . .” See Smith v. Jeppsen, 2012 CO 32, ¶ 17. This

  statute applies to “cases resulting in recoveries occurring after

  August 11, 2010,” and excludes evidence of the amounts paid by a

  plaintiff’s insurer for medical expenses. Id. at ¶¶ 12, 20.

¶ 21    In addition, where a plaintiff’s insurer has obliged a medical

  provider to accept a discounted rate for services (or a “write off” of a

  portion of the bill), the reduced rate constitutes a benefit received

  from a collateral source. Gardenswartz, 242 P.3d at 1085.

  Because the plaintiff would have been responsible for the entire

  billed amount if the plaintiff had not been insured, the discounts

  “are as much of a benefit for which [the plaintiff] paid consideration

  as are the actual cash payments by his health insurance carrier to

  the health care providers.” Id. (citation omitted).


                                     8
¶ 22      The collateral source rule thus prevents a tortfeasor from

  standing in the plaintiff’s shoes and enjoying the same discounted

  medical rates as the plaintiff’s insurance company receives. Id. (“To

  hold otherwise ‘is to allow the tortfeasor to receive a windfall in the

  amount of the benefit conferred to the plaintiff from a source

  collateral to the tortfeasor.’”) (citation omitted). As a result, a

  “plaintiff’s damages are not limited to the amount paid by her

  insurer, but may extend to the entire amount billed, provided those

  charges are reasonable expenses of necessary medical care.” Arthur

  v. Catour, 803 N.E.2d 647, 651 (Ill. App. Ct. 2004), aff’d, 833

  N.E.2d 847 (Ill. 2005), quoted with approval in Gardenswartz, 942

  P.3d at 1087; see Forfar v. Wal-Mart Stores, Inc., 2018 COA 125,

  ¶ 28.

¶ 23      In sum, the plaintiff “should be made whole by the tortfeasor,

  not by a combination of compensation from the tortfeasor and

  collateral sources. The wrongdoer cannot reap the benefit of a

  contract for which the wrongdoer paid no compensation.”

  Gardenswartz, 942 P.3d at 1083 (citation omitted).




                                      9
                2.   The Workers’ Compensation Statute

¶ 24   Workers’ compensation insurance carriers pay benefits based

  on a statutory fee schedule. § 8-42-101(3)(a)(I), C.R.S. 2018. The

  statute declares that “[i]t is unlawful, void, and unenforceable as a

  debt” for any person or medical provider to “contract with, bill, or

  charge” any amount in excess of the relevant fee schedule unless

  approved by the director of the division of workers’ compensation.

  Id. A covered employee is not liable for benefits paid under the

  workers’ compensation statute, and a medical provider may not

  seek to recover fees or costs from a covered employee once an

  employer has admitted liability for the employee’s medical costs.

  § 8-42-101(4).

¶ 25   An injured employee, in addition to accepting workers’

  compensation, may also pursue a remedy against a third-party

  tortfeasor “to recover any damages in excess of the compensation

  available” under the statute. § 8-41-203(1)(a), C.R.S. 2018.

¶ 26   With respect to workers’ compensation paid, section 8-41-

  203(1)(b) provides as follows:

            The payment of compensation pursuant to [the
            workers’ compensation statute] shall operate
            as and be an assignment of the cause of action


                                    10
             against such other person to . . . the person,
             association, corporation, or insurance carrier
             liable for the payment of such compensation.
             Said insurance carrier shall not be entitled to
             recover any sum in excess of the amount of
             compensation for which said carrier is liable
             under said articles to the injured employee,
             but to that extent said carrier shall be
             subrogated to the rights of the injured
             employee against said third party causing the
             injury.

¶ 27   This provision creates two claims — “one ‘owned’ by the

  employee and one ‘owned’ by the carrier.” Sneath v. Express

  Messenger Serv., 931 P.2d 565, 568 (Colo. App. 1996). “Each of the

  parties may prosecute his or its own individual claim”

  independently of the other. Id.; see also § 8-41-203(1)(e)(II). The

  right of subrogation created by section 8-41-203(1)(b) extends to all

  benefits payable under the workers’ compensation statute but does

  not extend to moneys collected for noneconomic damages. § 8-41-

  203(1)(c)-(d).

                          C.   Additional Facts

¶ 28   To reiterate, United, pursuant to section 8-41-203(1), filed an

  action against Delta and Moody to recover as damages the

  compensation United had paid to or on behalf of Scholle. The trial

  court consolidated United’s action with Scholle’s later-filed action


                                    11
  against the same defendants. Delta then settled United’s damages

  claim for $328,799.16, and the court dismissed United’s complaint.

  After Moody was dismissed, Scholle and Delta remained as the only

  parties.

¶ 29   Before the first trial, Scholle filed three motions in limine

  implicating the collateral source rule. In essence, he argued that

  evidence of the workers’ compensation payments he received should

  not be admitted and that he should be able to present evidence of

  the amounts billed by his medical providers because those amounts

  were a truer reflection of the reasonable cost of his medical services.

  Delta responded that the workers’ compensation benefits were not

  payments from a collateral source because Delta had contributed to

  the payments by settling United’s subrogation claim directly with

  United. Delta further argued that evidence of amounts billed in

  excess of the amounts paid should be excluded given that such

  amounts were void under the workers’ compensation statute.

¶ 30   The trial court agreed with Delta. The court distinguished this

  case from a typical collateral source case on the ground that “with

  respect to the workers’ compensation benefits received by Scholle as

  a result of the incident, United’s subrogation claim has been settled


                                    12
  and paid by Delta already.” Given Delta’s settlement, the court

  concluded that “Delta is not seeking to reap the benefit of a contract

  for which it paid nothing, nor is this a situation in which Delta has

  done nothing to provide the compensation . . . .” The court also

  ruled that, in light of the workers’ compensation statute, allowing

  Scholle to introduce evidence of amounts billed in excess of

  amounts paid by United “would constitute a windfall in favor of

  Scholle to recover for medical expenses for which he never incurred

  liability.” For the same reason, the court ruled that evidence of

  amounts billed was inadmissible under CRE 401 and CRE 403.

¶ 31   Therefore, the court declined to apply the collateral source rule

  and ordered that evidence of the amounts paid to Scholle’s medical

  providers would be admissible while evidence of the full amounts

  billed would not. Before the second trial, the second judge adopted

  this ruling over Scholle’s objection. The court admitted evidence of

  the medical expenses paid by United but excluded evidence of the

  amounts billed by the medical providers. The court explicitly relied

  on the amounts paid to determine Scholle’s damages for past

  medical expenses.




                                    13
                               D.   Analysis

¶ 32   The trial court should have applied section 10-1-135(10)(a),

  the pre-verdict, evidentiary component of the collateral source rule.

  Under that statute, evidence of the amounts paid by Scholle’s

  workers’ compensation insurer should have been excluded because

  the workers’ compensation benefits paid to or on behalf of Scholle

  were collateral source payments. Delta’s settlement of United’s

  subrogation claim did not alter that fact. Rather, the settlement

  simply entitled Delta to a setoff against any damages awarded to

  Scholle. Moreover, the fact that Scholle could not be liable for any

  medical expenses billed beyond those paid by United does not

  distinguish this case from other collateral source cases. To the

  extent that admitting evidence of the full amounts billed could lead

  to a “windfall” to Scholle, our supreme court had decided that this

  is preferable to the alternative: awarding the windfall to the

  tortfeasor, Delta in this case.

            1.    The Workers’ Compensation Benefits Were
                        Collateral Source Payments.

¶ 33   As mandated by statute, the workers’ compensation benefits

  arose out of the contract of hire between Scholle and United. See



                                    14
  Combined Commc’ns Corp. v. Pub. Serv. Co. of Colo., 865 P.2d 893,

  902 (Colo. App. 1993) (holding that workers’ compensation benefits

  fall within contract exception of section 13-21-111.6, thereby

  protecting these collateral source payments from offset). Hence,

  even though Scholle did not pay premiums toward his workers’

  compensation insurance, he gave consideration in the form of his

  employment services. See Van Waters & Rogers, Inc. v. Keelan, 840

  P.2d 1070, 1074 (Colo. 1992) (holding that disability benefits a

  firefighter received from a pension fund resulted from his

  employment contract and his providing employment services).

¶ 34   Delta did not contribute anything toward the contract between

  Scholle and United. Nor did Delta contribute toward the workers’

  compensation insurance premiums — or, more precisely, to

  United’s ongoing maintenance of its workers’ compensation

  program. (Recall that United is a self-insurer for purposes of

  workers’ compensation.) Consequently, the workers’ compensation

  benefits paid on behalf of Scholle resulted from a contract wholly

  collateral to Delta. A “wrongdoer cannot reap the benefit of a

  contract for which the wrongdoer paid no compensation.”

  Gardenswartz, 242 P.3d at 1083.


                                   15
¶ 35   Also, to the extent the workers’ compensation statute led

  Scholle’s medical providers to accept amounts less than those

  ordinarily billed, the reduced rates constituted a benefit received

  from a source collateral to Delta. See id. at 1085; cf. Crossgrove,

  ¶ 22 (noting that, because “the government sets the rates that

  providers who honor public insurance programs, like Medicare and

  Medicaid, must accept for certain services,” healthcare providers

  “accept significantly less than the amount billed for certain services

  in satisfaction of government insured patients’ bills”). That benefit

  resulted from the fact that Scholle was covered by workers’

  compensation insurance, a circumstance to which Delta did not

  contribute.

¶ 36   If Scholle had not been insured, he would have been liable for

  all expenses normally billed. Delta may not step into his shoes to

  enjoy the benefit of the reduced rates occasioned by the insurance.

  See Gardenswartz, 242 P.3d at 1085. Stated differently, Delta may

  not benefit from the fact that the person whom it injured happened

  to be covered by workers’ compensation insurance. See Prager v.

  Campbell Cty. Mem’l Hosp., 731 F.3d 1046, 1059 (10th Cir. 2013)

  (relying on Gardenswartz in a Wyoming case and holding that “to


                                    16
  limit [the plaintiff’s] damages to the amount paid by Workers’

  Compensation would confer an unintended and inappropriate

  benefit on the Hospital Defendants”).

¶ 37   Delta, relying on Ferrellgas, Inc. v. Yeiser, 247 P.3d 1022, 1028

  (Colo. 2011), contends that its settlement with United must change

  this conclusion. In that case, the plaintiff’s insurance company

  (Farmers) settled with a propane company (Ferrellgas) responsible

  for damaging the plaintiff’s home. Id. at 1024. Farmers had paid

  the plaintiff approximately $200,000 to fix the damage, then

  asserted a subrogation claim against Ferrellgas for that amount. Id.

  Ferrellgas settled Farmers’s claim for about $175,000. Id.

¶ 38   The plaintiff sued Ferrellgas and argued that the collateral

  source rule should bar evidence of Farmers’s payment to her and

  preclude a post-verdict setoff from any damages awarded against

  Ferrellgas. Id. at 1025. The trial court ruled that the collateral

  source rule did not preclude a post-verdict setoff to account for

  Farmers’s payment, given Ferrellas’s settlement with Farmers. But

  the court ordered the parties not to introduce evidence of Farmers’s




                                    17
  payment to the plaintiff. Id. 2 The trial court later set off the

  $200,000 from the jury verdict. Id.

¶ 39   The supreme court approved, holding that Farmers’s

  subrogation interest in the $200,000 “effectively allowed it to stand

  in [the plaintiff’s] shoes with respect to that amount, and

  Ferrellgas’s [$175,000] settlement of Farmers’s subrogation interest

  was thereby an effective settlement with [the plaintiff] of her interest

  in the [$200,000] amount.” Id. at 1027. So, the supreme court

  concluded, the settlement “extinguished” the plaintiff’s right to seek

  the $200,000 from Ferrellgas. Id. In other words, Ferrellgas’s

  settlement with Farmers “effectively constituted a partial settlement

  with [the plaintiff] for that amount.” Id. at 1028. Because the

  “collateral source doctrine is inapplicable to bar the setoff of

  payments that are in some way ‘attributable’ to the defendant,”


  2 Still, the parties introduced evidence of Farmers’s payment to the
  plaintiff, and the trial court did not intervene. Ferrellgas, Inc. v.
  Yeiser, 247 P.3d 1022, 1025 (Colo. 2011). To address any
  confusion, the court instructed the jury that “[y]ou should not
  reduce the amount of damages by amounts either paid to or by
  Farmers. . . .” Id. The supreme court acknowledged the
  “troublesome nature of the confusing presentation to the jury” and
  the potential for such evidence to “taint” the jury’s verdict, but the
  court declined to consider that issue because it was not before the
  court. Id. at 1026.

                                     18
  Ferrellgas was entitled to a $200,000 setoff against the plaintiff’s

  damage award. Id. (citation omitted).

¶ 40   Applied to this case, the reasoning of Ferrellgas means that

  Delta’s settlement of United’s subrogated or assigned interest in the

  amounts paid on Scholle’s behalf effectively constituted a partial

  settlement with Scholle for those amounts. That is, Delta has

  already settled with Scholle up to the amount of United’s claim, a

  sort of prepayment of any damages awarded to Scholle. Because

  Delta’s payment settling this claim is attributable to Delta, it was

  entitled to a post-trial setoff from the damages award.

¶ 41   Delta was not also entitled, however, to reduce Scholle’s

  damages award at trial by relying on evidence of United’s payments

  on his behalf. See Crossgrove, ¶ 12 (“[S]uch evidence could lead the

  fact-finder to improperly reduce the plaintiff’s damages award on

  the grounds that the plaintiff already recovered his loss from the

  collateral source.”). As explained, those workers’ compensation

  benefits arose from a contract collateral to Delta to which Delta did

  not contribute. Delta’s settlement of United’s damages claim —

  occurring after the purchase of workers’ compensation insurance

  and after most relevant medical expenses had been paid — did not


                                    19
  transform Delta into a source of the workers’ compensation

  benefits.

¶ 42   To hold otherwise would allow a tortfeasor to benefit twice

  from the same settlement with the victim’s insurer, which is what

  happened here. Delta elicited evidence of the medical expenses

  paid on the ground that the collateral source rule did not bar such

  evidence given its settlement with United. By doing so and by

  convincing the trial court to exclude evidence of the amounts billed,

  Delta induced the court to award a lower damages amount (i.e.,

  lower than if the court had considered the amounts billed rather

  than paid).3 Then, Delta persuaded the court to reduce the

  damages award again by setting off the amount of Delta’s

  settlement with United. While the setoff was proper, admitting

  evidence of the medical expenses paid was not.

¶ 43   To summarize, when calculating Scholle’s damages, the fact

  finder should not have reduced them by considering the amounts



  3Because the record does not contain Scholle’s actual medical bills,
  we do not know the difference between the amounts billed and the
  amounts paid. Hence, we do not know precisely how much Delta
  benefitted from the court’s decision.


                                   20
  paid by United, like in Ferrellgas, but Delta’s settlement with United

  entitled Delta to a post-trial setoff reflecting that settlement. 4 (We

  express no opinion on whether the precise amount of the trial

  court’s setoff was correct.)

                2.    The Workers’ Compensation Statute
                          Does Not Alter the Analysis.

¶ 44   The workers’ compensation statute provides that (1) any

  amounts billed in excess of the fee schedule are generally

  “unlawful,” “void,” and “unenforceable”; and (2) if an employer is

  liable for a covered employee’s medical costs, that employee is not




  4 Delta suggested at oral argument that, because United
  independently pursued its claim against Delta, United effectively
  took an assignment of Scholle’s claim for past medical expenses.
  Delta thus contends that Scholle no longer had a claim for past
  medical expenses at all. Under section 8-41-203(1)(b)-(d), C.R.S.
  2018, however, United’s “assigned and subrogated cause of action”
  was limited to the sum for which United was liable under the
  workers’ compensation system. So, even if Delta were correct that
  Scholle assigned his claim to United, such an assignment was
  partial — it was limited to the amount paid by United. Scholle
  retained his tort claim for past medical expenses in excess of the
  amount paid by United. See also § 8-41-203(1)(f) (“Nothing in this
  section shall be construed as limiting in any way the right of the
  injured employee to take compensation under [this statute] and also
  proceed against the third party causing the injury to recover any
  damages in excess of the subrogated rights described in this
  section.”). And, in the trial on such claim, section 10-1-135(10)(a),
  C.R.S. 2018, barred evidence of amounts paid by United.

                                     21
  liable for such costs. See § 8-42-101(3)(a)(I). In light of this statute,

  the trial court noted that “[a]llowing Scholle to introduce evidence of

  any amount billed in excess of that actually paid by United would

  allow Scholle to seek damages for bills that never, as a matter of

  law, amounted to a legal obligation to pay.” This, the court

  concluded, would result in an improper windfall to Scholle. Delta

  makes the same point on appeal.

¶ 45   There is certainly some force to the trial court’s, and Delta’s,

  reasoning. But our supreme court has rejected it in an analogous

  context that is indistinguishable in any relevant sense.

¶ 46   In Gardenswartz, the supreme court considered section 10-16-

  705(3), C.R.S. 2018, part of the Colorado Health Care Coverage Act

  applying to “managed care plans.” That provision requires every

  contract between a carrier and a participating provider to include a

  “hold harmless provision specifying that covered persons shall, in

  no circumstances, be liable for money owed to participating

  providers by the plan and that in no event shall a participating

  provider collect or attempt to collect from a covered person any

  money owed to the provider by the carrier.” § 10-16-705(3).




                                     22
¶ 47   The supreme court interpreted this provision to mean that the

  plaintiff in Gardenswartz, a purchaser of a managed care plan,

  could not be liable for the difference between the amounts billed by

  his healthcare providers and the amounts paid by his insurance.

  See 242 P.3d at 1085. When the providers contracted with the

  insurance company and accepted payment on the plaintiff’s behalf,

  they “gave up the right to seek compensation from [plaintiff] for the

  amount billed.” Id. But, even though the plaintiff “could not be

  billed” the difference between the amounts billed to the insurer by

  medical providers and the amounts paid by the insurer, the

  supreme court concluded that his tort damages should not be

  limited to the reduced amounts paid by insurance. Id. at 1085-88.

  So, the plaintiff retained a tort claim for medical expenses beyond

  those paid by insurance.

¶ 48   The supreme court acknowledged that, due to the disparity

  between the cost of medical services billed and the amounts paid by

  insurance companies, “[i]t can be tempting to treat the discounted

  amounts as being a truer reflection of a plaintiff’s damages.” Id. at

  1087. The court resisted that temptation and recognized that a

  covered plaintiff may seek the full amounts billed. See id. (noting


                                    23
  that plaintiff’s damages may extend to the entire amount billed,

  provided those charges are reasonable expenses of necessary

  medical care).5 “This is consistent with the common law position

  that it is more repugnant to shift the benefits of the plaintiff’s

  insurance contract to the tortfeasor in the form of reduced liability

  when the tortfeasor paid nothing toward the health insurance

  benefits.” Id. at 1088.

¶ 49   As construed in Gardenswartz, section 10-16-705(3) has the

  same effect as section 8-42-101(3)(a)(I) of the workers’

  compensation statute. In both situations, the injured party is not

  liable for medical expenses billed beyond those paid by insurance.

  In both situations, evidence of the full amounts billed is admissible

  while evidence of the amounts paid by insurance is not. See 242

  P.3d at 1088 (“Crediting the financial windfall arising from [the

  insurer’s] discounted rates to the injured plaintiff is consistent with

  the principles of the collateral source rule.”). Therefore, the



  5 That is, “[b]ecause any write-offs conferred would have been a
  byproduct of the insurance contract secured by [plaintiff], even
  those amounts should be counted as damages.” Volunteers of Am.
  Colo. Branch v. Gardenswartz, 242 P.3d 1080, 1088 (Colo. 2010)
  (quoting Hardi v. Mezzanotte, 818 A.2d 974, 985 (D.C. 2003)).

                                     24
  workers’ compensation statute does not meaningfully distinguish

  this case from Gardenswartz.

¶ 50   For clarity’s sake, we stress that, to the extent a medical

  services contract or bill is unlawful, void, and unenforceable under

  section 8-42-101(3)(a)(I), it remains so under our analysis. The

  provider may not enforce the contract by collecting payment from

  the injured employee or anyone else. But, simply because the bill is

  uncollectable does not render it entirely irrelevant to the reasonable

  value of the medical services provided — just as the uncollectable

  bills in Gardenswartz were not irrelevant. Given the supreme

  court’s holding that the plaintiff’s damages for medical expenses

  were not limited to the amounts paid by insurance, evidence of

  medical expenses in excess of the amounts paid was relevant, even

  though those excess amounts could not be collected from the

  plaintiff. (Indeed, how else could the plaintiff have sought more

  damages than the amount paid by insurance?)

¶ 51   In addition to being analogous to Gardenswartz, this case

  resembles Forfar, ¶ 24, where the tortfeasor argued that the

  plaintiff’s recovery should be limited to the expenses paid by

  Medicare because, by statute and regulation, he never incurred


                                    25
  liability for any greater amounts. See also id. at ¶ 3 (The defendant

  argued that expenses owed under the plaintiff’s private contracts

  with medical providers “were null and void under Medicare

  regulations.”). The division rejected this claim, holding that, “to the

  extent that a windfall occurs, we conclude that the plaintiff — not

  the tortfeasor — should be the beneficiary.” Id. at ¶ 24.

¶ 52   As a result, “the reasonable value of [the plaintiff’s] medical

  services was not limited to amounts that Medicare paid to his

  providers, even assuming that they could receive no more from

  [him] or anyone who might be vicariously liable to them, such as a

  guarantor.” Id. at ¶ 30. Likewise, the reasonable value of Scholle’s

  medical services was not limited to the amounts paid by his

  workers’ compensation insurer, even though his providers could not

  recover more from him. And, because the value of the services was

  not limited to the amounts paid, evidence of a greater value was

  relevant, including the amount of the reasonable expenses charged.

  See id. at ¶ 28 (“Unsurprisingly, ‘[a] majority of courts have

  concluded that plaintiffs are entitled to claim and recover the full

  amount of reasonable medical expenses charged, based on the

  reasonable value of medical services rendered, including amounts


                                    26
  written off from the bills pursuant to contractual rate reductions.’”)

  (citation omitted); id. at ¶ 29 (recognizing that the majority rule

  better aligns with our supreme court’s view).

¶ 53   For the foregoing reasons, the trial court erred by ruling that

  CRE 401 and CRE 403 barred evidence of the amounts billed by

  Scholle’s medical providers. While evidence of medical expenses

  paid by United is inadmissible, Scholle must be allowed to present

  evidence of his necessary and reasonable medical expenses. The

  amounts billed are relevant to that question as well any other

  evidence bearing on the reasonable value of the services. Of course,

  Delta may present evidence disputing that those medical expenses

  were either necessary or reasonable.6

¶ 54   We remand for a new trial on Scholle’s past medical expenses

  as disclosed by September 10, 2015. We will address that cutoff

  date below as well as other issues that may impact the new trial.




  6 To the extent the decision in Lebsack v. Rios, No. 16-CV-02356-
  RBJ, 2017 WL 5444568 (D. Colo. Nov. 14, 2017), conflicts with our
  analysis, we decline to follow it because it misconstrues Colorado
  law, particularly Gardenswartz and Ferrellgas. See Kovac v.
  Farmers Ins. Exch., 2017 COA 7M, ¶ 19 (“[W]e are not bound by
  decisions of federal courts applying Colorado law[.]”).

                                     27
                    III.   Expert Witness Disclosures

¶ 55   Scholle contends that the trial court erred by “striking” two of

  his expert witnesses. We disagree.

                           A.   Additional Facts

¶ 56   The trial court authored a thorough order addressing this

  issue, from which we will quote liberally.

¶ 57   Scholle’s expert disclosures were due in February 2015. In

  March 2015, the court granted the defendants’ unopposed motion

  to continue the trial. The court extended the time for Delta to file

  expert disclosures and for Scholle to file rebuttal expert disclosures.

  The court also advised, however, that “no further discovery other

  than what was reflected in the order could be conducted by the

  parties” and “the continuance was not to be used as a means of

  increasing the costs in the case by completely reopening discovery.”

¶ 58   After the deadline for submitting his rebuttal expert

  disclosures — and without seeking leave of the court — Scholle

  disclosed Dr. Eric Ray as an alleged rebuttal expert. Scholle

  represented that Dr. Ray would testify about Scholle’s future

  medical expenses, including charges by a specific medical facility.

  Delta objected, arguing that Dr. Ray should have been disclosed as


                                    28
  a retained expert because his testimony would not actually rebut

  any of Delta’s expert witnesses. The court agreed that Scholle

  should have disclosed Dr. Ray earlier, but the court permitted the

  late endorsement of Dr. Ray anyway. To reduce the prejudice to

  Delta from the late disclosure, the court, on September 10, 2015,

  continued the trial to allow Delta to depose Dr. Ray. “Because all

  other discovery deadlines had passed, the Court allowed no

  discovery other than that identified in its order.”

¶ 59   During Dr. Ray’s deposition, it was apparent that he did not

  know anything about the “facility charges” associated with Scholle’s

  future medical expenses, despite Scholle’s earlier representation to

  the contrary. In November 2015, Scholle requested extra time to

  disclose additional experts “to effectively quantify [his] future

  economic losses.” Before the court ruled, Scholle disclosed Laura

  Woodard as an expert who would testify to the costs of future

  medications, gym memberships, and home services. On December

  7, 2015, the court denied Scholle’s request for extra time to disclose

  experts. The court explained that, when it had continued the trial,

             [t]he Court specifically concluded that no
             discovery other than that identified in the
             September 10 order would be permitted and


                                     29
             did not intend to re-set any other deadlines
             that may exist under the Rules of Civil
             Procedure [because] when the case was
             continued, the Court had concluded that all
             necessary discovery had been completed with
             the exception of [Dr. Ray’s deposition]. The
             Court further notes that at the time of the
             continuance, [Scholle] had already been
             afforded the full opportunity to submit both
             affirmative expert disclosures and rebuttal
             expert disclosures.

¶ 60   Despite this order, Scholle then disclosed yet another expert,

  Steven Hazel, on December 8, 2015. Hazel would have testified to

  economic damages, including past and future medical costs, lost

  future earnings, and future retirement benefits.

¶ 61   Delta moved to strike both Woodard and Hazel. The trial

  court, applying C.R.C.P. 37(c) and the factors outlined in Todd v.

  Bear Valley Village Apartments, 980 P.2d 973 (Colo. 1999), found

  that Scholle had failed to establish that his late disclosures of

  Woodard and Hazel were either substantially justified or harmless.

  Hence, the court excluded their testimony, while still permitting Dr.

  Ray’s. The second judge enforced this ruling at the second trial.

                              B.    Analysis

¶ 62   C.R.C.P. 37(c) excludes evidence not properly disclosed under

  C.R.C.P. 26(a) and C.R.C.P. 26(e) unless the failure to disclose is


                                    30
  either substantially justified or harmless to the opposing party.

  Todd, 980 P.2d at 977. The nondisclosing party bears the burden

  to show that its failure to disclose was substantially justified or

  harmless. Id. at 978.

¶ 63   The trial court gave several cogent reasons for excluding

  Woodard’s and Hazel’s testimony.

¶ 64   First, the court found that Scholle’s “repeated contention that

  the Court continued the trial a second time to allow [him] to

  quantify his future medical treatment and expenses

  mischaracterizes what actually occurred.” In fact, the court

  continued the trial to “cure prejudice that [Delta] had suffered from

  [Scholle’s] improper disclosure of Dr. Ray.”

¶ 65   Second, the court was unmoved by Scholle’s argument that he

  first learned that Dr. Ray did not know anything about the “facility

  charges” associated with future medical treatment when Delta

  deposed Dr. Ray. The court noted that Scholle had represented —

  in August 2015 — that Dr. Ray would testify to such expenses and

  “[t]he fact that [Scholle] failed to consult with his own expert before

  disclosing his opinions is troubling.” The court was not persuaded




                                     31
  to permit Scholle to use his failure to consult with his own expert as

  an excuse to present other experts.

¶ 66   Third, the court found “particularly concerning” Scholle’s

  disregard for the December 7, 2015, order explicitly prohibiting

  Scholle from disclosing additional experts.

¶ 67   Finally, the court considered other Todd factors and concluded

  that Scholle had not met his burden of showing that his failure to

  disclose Woodard and Hazel was substantially justified or harmless.

  In particular, the court determined that Scholle had acted “in bad

  faith” because

            the Court made its position clear. Plaintiff
            proceeded with these disclosures without leave
            of the Court. For Plaintiff to now contend that
            [he] had the right to these disclosures and that
            Defendants are the cause of their own
            prejudice demonstrates that Plaintiff has
            engaged in misconduct worthy of the sanction
            of witness preclusion.

¶ 68   Because the record supports the trial court’s decision, we

  cannot conclude that the court abused its broad discretion by

  barring Woodard’s and Hazel’s testimony. See People ex rel.

  Strodtman, 293 P.3d 123, 129 (Colo. App. 2011) (recognizing that

  we review such decisions for an abuse of discretion); see also People



                                   32
  v. Rhea, 2014 COA 60, ¶ 58 (“[U]nder the abuse of discretion

  standard, the test is not ‘whether we would have reached a different

  result but, rather, whether the trial court’s decision fell within a

  range of reasonable options.’”) (citation omitted).

                     IV.   Order Granting a New Trial

¶ 69   After the first trial, the trial court granted a new trial under

  C.R.C.P. 59(d) because Scholle’s counsel had misrepresented facts

  to the court, leading to improperly admitted evidence. Scholle

  contends that the court erred, but the record shows that the court

  acted well within its discretion.

                           A.   Additional Facts

¶ 70   The trial court issued a compelling, twenty-four-page order

  explaining why a new trial was warranted. We provide only a

  summary.

¶ 71   During Dr. Ray’s deposition in November 2015, he “was not

  shown any actual billing records.” Instead, he examined Scholle’s

  counsel’s “summary disclosure” from August 2015 identifying costs

  ranging from $329,550 to $659,100 for future treatment with Dr.

  Ray. These costs included amounts that Dr. Ray charged ($3092)

  and amounts that the medical facility charged ($20,923) per visit.


                                      33
  Dr. Ray testified that he knew only the amounts that he charged

  and knew nothing “about the facility and what they charge.”

  Scholle’s counsel said that he did not know why the facility charges

  had been included in the August 2015 disclosure because Dr. Ray

  knew nothing about them:

            Q. (BY MR. BENDINELLI)[:] I don’t know why
            we got the facility charge in there . . . you have
            nothing to do with the facility charge, do you?
            Okay.

¶ 72   After Dr. Ray’s deposition indicated that he could not testify to

  the facility charges, Scholle disclosed the two additional experts

  previously discussed (Woodard and Hazel). Responding to Delta’s

  motion to strike those experts, Scholle stated that “[a]t the

  deposition, both parties became aware that Dr. Ray could not testify

  as to some ancillary charges related to the procedures (e.g.: Facility

  Fee, attendants, etc.), and that additional expert testimony would

  be required to substantiate the charges.”

¶ 73   In February 2016, Scholle’s counsel raised the issue of future

  damages at a pre-trial conference and said that “if the witnesses . . .

  retained to discuss the evidence of future medical expenses

  [Woodard and Hazel] are struck, number one, then [Scholle’s]



                                    34
  efforts were frustrated to comply with putting together the future

  medical expenses, because Dr. Ray cannot do that.” Scholle’s

  counsel then asserted that, if Scholle were limited to Dr. Ray’s

  testimony, “it is impossible for [Scholle] to present evidence of

  future medical expenses.”

¶ 74   At trial, Dr. Ray’s testimony prompted many objections and

  bench conferences. The court limited Dr. Ray’s testimony to only

  “what had been testified to during his deposition.” Nevertheless,

  Scholle’s counsel continued to question Dr. Ray about the facility

  charges associated with future treatment, and Delta continued to

  object. The court continued to limit Dr. Ray’s trial testimony to his

  deposition testimony.

¶ 75   Then, during a bench conference, Scholle’s counsel told the

  court that Dr. Ray had, in fact, “see[n] the bills” reflecting the

  facility charges on the day of the deposition. He said that “[t]he

  deposition indicates that [Dr. Ray] looked at [the bills] the day of the

  deposition.” Delta’s counsel protested, but with this “new”

  information, the court allowed Scholle’s counsel to “lay a foundation

  as to what [Dr. Ray] did.” Scholle’s counsel then asked Dr. Ray, “So

  you saw the bills from the surgery center at your deposition?” Dr.


                                     35
  Ray said, “Yes.” He then testified that the facility charges were

  around $23,000 per visit.

¶ 76   In the end, the jury returned a verdict of $1,038,738 in

  economic damages. After reviewing Dr. Ray’s deposition in

  response to Delta’s motion for a new trial, the court found that

             Scholle’s counsel misrepresented to the Court
             that Dr. Ray had reviewed [the] facility charges
             prior to or during his deposition and was,
             therefore, competent to testify to these charges
             over Delta’s objection. . . . It appears to the
             Court that, at a minimum, this resulted in the
             jury considering over $320,000 in future
             medical expenses that should not have been
             admitted . . . . Dr. Ray’s own deposition
             testimony makes clear that he had not
             reviewed the facility charges prior to his
             deposition and was not competent to testify
             about such costs.

                              B.    Analysis

¶ 77   As relevant here, a court may grant a new trial based on “[a]ny

  irregularity in the proceedings by which any party was prevented

  from having a fair trial . . . .” C.R.C.P. 59(d)(1). A new trial may be

  granted based “upon counsel’s misstatements of fact, or on his

  statements of fact which have not been introduced in or established

  by evidence . . . .” Park Stations, Inc. v. Hamilton, 38 Colo. App.

  216, 218, 554 P.2d 311, 313 (1976).


                                     36
¶ 78   The trial court detailed the various instances of Scholle’s

  attorney’s misconduct. Particularly, the court found

             that based on Dr. Ray’s deposition testimony it
             could not be more clear that he never reviewed
             the substantial facility charge bills prior to or
             during his deposition and had no basis for
             testifying about these charges at trial given
             that the Court had limited his testimony to
             items that he reviewed and were discussed in
             his deposition. The only reason that the Court
             allowed Scholle’s counsel to ask Dr. Ray about
             facility charges and testify to these numbers
             was that during the bench conference to
             address the issue Scholle’s counsel
             represented to the Court that Dr. Ray had
             reviewed these numbers and had discussed
             them at his deposition which was inaccurate
             and a misrepresentation of what had occurred
             at the deposition.

  The court stressed that Scholle’s attorney had admitted several

  times before trial that Dr. Ray could not properly testify to the

  facility charges to which he later testified.

¶ 79   In addition, the court concluded that a separate

  misrepresentation from Scholle’s counsel warranted a new trial.

  Counsel had “engaged in misconduct . . . by failing to provide Delta

  with a copy of [certain] Safeway pharmacy records prior to trial” and

  then representing to the court at trial that he had so disclosed the

  records. Based on this misrepresentation, the court “erroneously


                                     37
  admitted evidence of $18,542.07 in prescription costs.” Scholle

  does not challenge this independent basis of the order granting a

  new trial, which is sufficient itself to affirm that order. See IBC

  Denver II, LLC v. City of Wheat Ridge, 183 P.3d 714, 717-18 (Colo.

  App. 2008) (holding that a party’s failure on appeal to challenge all

  alternative grounds for judgment requires affirmance of the

  judgment).

¶ 80   In any event, the record abundantly supports the court’s

  order. The record reveals that Scholle’s attorney misrepresented

  what occurred at Dr. Ray’s deposition and that the attorney had

  disclosed the pharmacy records. As a result, the court mistakenly

  admitted evidence that led to an improperly inflated verdict.

¶ 81   On appeal, Scholle says only that, because he disclosed before

  trial that he would incur future medical expenses in the amount to

  which Dr. Ray later testified, Delta was not “unfairly surprised” by

  the information. But that was not the basis of the trial court’s

  order. Rather, the court granted a new trial because Scholle’s

  counsel’s misconduct induced the court to improperly admit Dr.

  Ray’s testimony about future medical costs as well as evidence

  about prescription drug costs. We will not disturb the court’s


                                     38
  well-reasoned order. See Rains v. Barber, 2018 CO 61, ¶ 8 (noting

  that we review a trial court’s order granting a new trial for an abuse

  of discretion, which occurs only when the order is manifestly

  arbitrary, unreasonable, or unfair, or a misapplication of the law).

                         V.   Scope of New Trial

¶ 82   Scholle contends that the trial court erred in limiting evidence

  of damages in the second trial to those properly disclosed as of

  September 10, 2015 — the date that the court continued the trial

  the second time. We disagree.

¶ 83   The trial court relied on three principles in limiting the scope

  of damages on retrial. First, the parties are to be placed in the

  same positions they occupied before the original trial. People in

  Interest of M.B., 188 Colo. 370, 378, 535 P.2d 192, 197 (1975).

  Second, “[r]eversal and remand for a new trial does not

  automatically reopen discovery.” Erskine v. Beim, 197 P.3d 225,

  232 (Colo. App. 2008). Third, a trial court should be permitted

  “wide latitude” in managing a retrial because the trial court is

  “much more familiar with the conduct of the original trial, the needs

  for judicial management[,] and the requirements of basic fairness to

  the parties in a new trial.” Cleveland v. Piper Aircraft Corp., 985


                                    39
  F.2d 1438, 1450 (10th Cir. 1993), abrogation on other grounds

  recognized by US Airways, Inc. v. O’Donnell, 627 F.3d 1318 (10th

  Cir. 2010).

¶ 84   The trial court explained that it had “felt compelled to grant

  Defendant a new trial because of the misrepresentation by Plaintiff’s

  counsel at trial that Dr. Ray had disclosed the future medical

  expenses that Plaintiff claimed . . . .” Further, “had the Court

  known that Dr. Ray lacked personal knowledge of the information

  included in his late disclosure, the Court would not have granted

  the continuance in the first place.” So, the court concluded:

            Under the circumstances of this case, the
            Court finds that manifest injustice to
            Defendant would result from allowing Plaintiff
            to present additional and new damages and to
            correct the deficiencies in his trial
            presentation. Were the Court to allow Plaintiff
            this opportunity, which would essentially
            result in a “do-over” of his case with a free
            pass to fix the problems, Defendant, having
            done nothing wrong here, would be penalized.
            Defendant would be put in a worse position on
            retrial and made to defend against new
            damages without having had any hand in the
            need for the retrial. Moreover, with additional
            discovery comes additional cost that Defendant
            should not have to bear. Basic fairness
            requires that with respect to damages, the
            Court should restore the parties to the position
            that they were in on September 10, 2015.


                                    40
¶ 85   The court’s reasoning is sound and enjoys record support.

  Contrary to Scholle’s appellate argument, the court did not limit the

  scope of the trial as a discovery sanction against Scholle. Rather,

  the court did so to avoid injustice to Delta. We will not substitute

  our judgment for the trial court’s discretionary decision to limit

  evidence of damages to those properly disclosed before September

  10, 2015. The same ruling may apply on remand.

                       VI.   Jury Trial or Bench Trial

¶ 86   Scholle contends that the trial court erred in striking the jury

  for the second trial. Reviewing de novo, we do not perceive error.

  See Stuart v. N. Shore Water & Sanitation Dist., 211 P.3d 59, 61

  (Colo. App. 2009).

¶ 87   In its case against Delta and Moody, United demanded a jury

  trial on June 5, 2014, and paid the fee. Neither defendant did so.

  In Scholle’s separate case against these defendants (filed on June 9,

  2014), no party demanded a jury trial or paid the fee. The cases

  were consolidated on September 22, 2014. As discussed, the trial

  court later dismissed with prejudice United’s complaint, effectively

  eliminating the first-filed case.




                                      41
¶ 88   Yet, the remaining action proceeded to a jury trial, presumably

  because no one noticed that only United — whose case had been

  dismissed entirely — had ever demanded a jury trial.

¶ 89   Before the retrial, Delta alerted the trial court to the foregoing

  facts. The court, relying on C.R.C.P. 38 and C.R.C.P. 39, issued an

  order striking the jury for the retrial and ordered a bench trial.

¶ 90   Rule 38(a) states that “[u]pon the filing of a demand and the

  simultaneous payment of the requisite jury fee by any party in

  actions wherein a trial by jury is provided . . . including actions . . .

  for injuries to person . . . all issues of fact shall be tried by a jury.”

  Rule 38(b) provides that any party may demand a trial by jury of

  any issue triable by a jury “by filing and serving upon all other

  parties . . . a demand therefor at any time after the commencement

  of the action but not later than 14 days after the service of the last

  pleading directed to such issue . . . .” Rule 38(e) says that “[t]he

  failure of a party to file and serve a demand for trial by jury and

  simultaneously pay the requisite jury fee . . . constitutes a waiver of

  that party’s right to trial by jury.”

¶ 91   Here, it is undisputed that United was the only party to ever

  demand a jury trial. Under Rule 38(e), then, both Scholle and Delta


                                      42
  waived the right to a jury trial, and they did so before Scholle’s case

  was consolidated with United’s. See Crawford v. Melby, 89 P.3d

  451, 454-55 (Colo. App. 2003) (failure to timely pay requisite fee

  results in waiver under C.R.C.P. 38(e)). Accordingly, the first trial,

  as well as the second, should have been to the court. See C.R.C.P.

  39(b) (“Issues not demanded for trial by jury as provided in Rule 38

  shall be tried by the court.”); see also Machol v. Sancetta, 924 P.2d

  1197, 1199 (Colo. App. 1996) (“C.R.C.P. 39(b) affords the court no

  discretion to grant an untimely request for a jury trial.”).

¶ 92   Scholle argues that, because United never “withdrew” its jury

  demand pursuant to Rule 38(e), it remained in effect. But United

  and its cause of action were dismissed before trial; only Scholle’s

  complaint remained, as to which no party requested a jury trial. Cf.

  Nat’l Farmers Union Prop. & Cas. Co. v. Frackleton, 662 P.2d 1056,

  1061 (Colo. 1983) (holding that consolidation order did not “merge

  the consolidated suits into a single cause of action” or join the

  parties in each other’s actions). 7 Because all parties to the



  7 Moreover, because United, the only party who had demanded a
  jury trial, naturally did not appear at either the first or second trial,
  a jury trial was inappropriate. See C.R.C.P. 39(a).

                                     43
  remaining case had waived a jury trial, the court correctly ordered

  that the second trial should be to the court. See C.R.C.P. 38(e); see

  also § 13-71-144, C.R.S. 2018 (stating that the failure to timely pay

  the jury fee shall constitute a waiver of a jury trial).

                              VII. Conclusion

¶ 93   The portions of the judgment awarding economic damages in

  the form of Scholle’s lost wages and awarding noneconomic

  damages are affirmed. The portion of the judgment awarding

  economic damages in the form of Scholle’s medical expenses is

  reversed, and we remand for a new trial limited to determining

  those damages. We affirm the orders (1) striking witnesses

  Woodard and Hazel; (2) granting a new trial; (3) limiting the scope of

  damages; and (4) striking a jury. Because we remand for a new

  trial, we do not reach the post-trial issues presented in either the

  merits appeal or the costs appeal.

       JUDGE WELLING concurs.

       JUDGE RICHMAN concurs in part and dissents in part.




                                      44
       JUDGE RICHMAN, concurring in part and dissenting in part.

¶ 94   I concur with the majority’s opinion in all aspects except the

  grant of a new trial on Scholle’s economic damages claims in the

  form of past medical expenses.

¶ 95   According to the operation of the workers’ compensation

  statute, the payment by United of Scholle’s medical expenses

  effected an assignment of his claim to United for medical expenses

  against the tortfeasor, in this case, Delta. § 8-41-203(1)(b), C.R.S.

  2018. That assignment, or right of subrogation, applied to “all

  compensation and all medical, hospital, . . . and other benefits and

  expenses to which the employee . . . [is] entitled. § 8-41-203(1)(c).

  The assignment to United permitted it to sue Delta for repayment of

  the past medical expenses, a goal which it successfully achieved by

  way of its settlement with Delta.

¶ 96   The settlement by Delta of United’s assigned, or subrogated,

  interest in the past medical payments that United had paid Scholle

  extinguished Scholle’s claim for past medical expenses against the

  tortfeasor, here Delta. See Ferrelgas, Inc. v. Yeiser, 247 P.3d 1022,

  1028 (Colo. 2011); see also Lebsack v. Rios, No. 16-CV-02346-RBJ,

  2017 WL 5444568, at *3 (D. Colo. Nov. 14, 2017). Although


                                      45
  unpublished, Judge Brooke Jackson’s decision in Lebsack applied

  Colorado law on facts indistinguishable from those in this case.

¶ 97   In addition, by operation of law, Scholle had no further

  obligation to medical providers for any amounts other than those

  paid under workers’ compensation. § 8-42-101(3)(a)(I), C.R.S. 2018.

  In fact, under that statute it is “unlawful” for any provider to bill for

  services in excess of the amounts paid under workers’

  compensation, and any such bills issued would be “void, and

  unenforceable” under the statute.

¶ 98   Therefore, in my view, allowing Scholle to pursue additional

  amounts for past medical “expenses” against Delta, in excess of

  what workers’ compensation (or United) has already paid for his

  injuries and under circumstances where Delta has settled with

  United, contravenes the intent and purpose of the workers’

  compensation statutes. The workers’ compensation system is

  designed, in part, to ensure that employees are paid promptly for

  medical expenses incurred for injuries suffered on the job. See,

  e.g., Paint Connection Plus v. Indus. Claim Appeals Office, 240 P.3d

  429, 432 (Colo. App. 2010) (Workers’ compensation is “a statutory

  scheme designed to promote, encourage, and ensure prompt


                                     46
  payment of compensation . . . .”). The system is not designed to

  create a financial windfall for the injured employee. Thus, I

  disagree with the majority’s suggestion that a windfall in this case

  should go to Scholle.

¶ 99    Conversely, I do not see how Delta would receive a windfall if

  Scholle is not permitted to pursue a claim for billed amounts. The

  record shows that Delta paid over $300,000 to settle United’s claim

  against it, far more than Scholle’s actual medical bills and lost

  wages, which totaled $194,426. I recognize that Delta freely chose

  to settle with United for the higher amount, but, under these

  circumstances, Delta is hardly acquiring a windfall.

¶ 100   In addition, allowing Scholle to sue for amounts of medical

  “expenses” that are void and unenforceable puts the court in the

  position of facilitating the enforcement of an unlawful, void, and

  unenforceable contract. We should not promote such action in the

  case of an injured employee any more than we would in refusing to

  support a lawsuit to enforce a gambling debt, see Condado Aruba

  Caribbean Hotel, N.V. v. Tickel, 39 Colo. App. 51, 53, 561 P.2d 23,

  24 (1977), or an illegal sales contract, see Potter v. Swinehart, 117

  Colo. 23, 28, 184 P.2d 149, 151-52 (1947).


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¶ 101   This case is distinguishable from the situation in Forfar v.

  Wal-Mart Stores, Inc., 2018 COA 125. First, in Forfar, there was not

  a workers’ compensation payment to the injured party, and the

  tortfeasor in that case had not contributed anything to a settlement

  with the injured plaintiff. Thus, subrogation and assignment

  played no role. Second, although Forfar may not have been liable to

  Medicare for the difference between paid and billed amounts, the

  billed amounts were not deemed by statute to be “unlawful, void,

  and unenforceable.” Third, Forfar notes that although the jury

  awarded the plaintiff the reasonable value of the providers’ services,

  it did so “without having seen any of the providers’ bills.” Id. at

  ¶ 56. Although it is not clear how the jury arrived at the amount of

  damages, Forfar does not support the majority’s conclusion that the

  bills from Scholle’s providers should be admitted into evidence.

¶ 102   In Volunteers of America Colorado Branch v. Gardenswartz,

  242 P.3d 1080, 1083 (Colo. 2010), as in Forfar, the workers’

  compensation system was not involved, there was no assignment of

  the injured party’s claim to his insurer, and the tortfeasor had not

  contributed to the settlement of the injured party’s claims. Thus,

  there was no argument that the injured party’s claims against the


                                    48
  tortfeasor were extinguished. The statute that protected the

  tortfeasor from liability to the providers for amounts billed did not

  render those bills unlawful or void. And while Gardenswartz

  applies a collateral source rule as to a setoff, there is no holding in

  the opinion on the admissibility of the injured party’s medical bills.

¶ 103   Extinguishing Scholle’s claim for additional past medical

  expenses would avoid other thorny issues addressed by the

  majority. It would avoid having to decide whether the collateral

  source rule has any application to an injured employee’s efforts to

  collect more from a third-party tortfeasor than he was paid under

  workers’ compensation. It would avoid having to decide whether

  evidence of actual payments, or billed amounts, reflects the injured

  party’s past medical expenses. It would avoid having to decide how

  and when a setoff for the payments by the third-party tortfeasor

  would be applied. And most significantly, in this case, it would

  obviate a third trial over Scholle’s past medical “expenses” (which




                                     49
  have already been paid) since all his other damages claims against

  Delta for noneconomic damages are resolved.1

¶ 104   Accordingly, I dissent from that portion of the majority opinion

  that remands for a new trial on Scholle’s economic damages claims

  for past medical expenses. I otherwise concur in the remainder of

  the majority opinion.




  1 Nothing in the reasoning of this separate opinion should be
  applied to the injured workers’ claims against third-party
  tortfeasors for noneconomic damages, unpaid future medical needs,
  or punitive damages.

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