     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
                                                            February 8, 2018

                                2018COA14

No. 16CA1383, Danko v. Conyers — Torts — Professional
Liability — Medical Malpractice — Pro Rata Liability

     In this medical negligence case, the division considers the

effect of the nonparty at fault statute, section 13-21-111.5, C.R.S.

2017, and Restatement (Second) of Torts section 457 (Am. Law Inst.

1965) (also called the original tortfeasor rule) on the admissibility of

evidence offered by the initial provider that negligence of later

providers caused the harm for which the patient sought damages

from the initial provider. Rather than designating later providers as

nonparties at fault, the initial provider sought to introduce evidence

of their negligence as a superseding cause. The division first holds

that the nonparty at fault statute does not preclude admission of

such evidence. However, the division further holds that the trial

court acted within its discretion in precluding the evidence because
the initial provider did not show that treatment by the later

providers, even if negligent, was extraordinary, as required by the

Restatement. Therefore, the judgment against the initial provider is

affirmed. The division also holds that jury consulting fees can be

recovered as costs under the settlement offer statute, section

13-17-202, C.R.S. 2017.
COLORADO COURT OF APPEALS                                       2018COA14


Court of Appeals No. 16CA1383
Boulder County District Court No. 14CV30542
Honorable Norma A. Sierra, Judge


Deborah Danko,

Plaintiff-Appellee and Cross-Appellant,

v.

David J. Conyers, M.D.,

Defendant-Appellant and Cross-Appellee.


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

                                   Division III
                            Opinion by JUDGE WEBB
                          Graham and Terry, JJ., concur

                          Announced February 8, 2018


Leventhal & Puga, P.C., Jim Leventhal, Erin C. Genullis, S. Paige Singleton,
Benjamin I. Sachs, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant

Jaudon & Avery LLP, David H. Yun, Denver, Colorado, for Defendant-Appellant
and Cross-Appellee
¶1    In a medical negligence case, should the initial provider be

 allowed to present evidence that a later provider’s negligence caused

 the injury for which the patient seeks to recover damages from the

 initial provider? Does the answer depend on whether the initial

 provider attempts to apportion fault or seeks complete exoneration

 because, even if he or she was negligent, the later provider’s

 negligence was a superseding cause of the patient’s injury?

¶2    David J. Conyers, M.D., who performed carpal tunnel surgery

 on Deborah Danko, appeals the judgment entered on a jury verdict

 in favor of Ms. Danko. According to Ms. Danko, Dr. Conyers

 negligently failed to detect an infection resulting from the surgery,

 which led to amputation of her forearm. Dr. Conyers challenges

 rulings before and during trial excluding his expert testimony that

 amputation of Ms. Danko’s forearm by another physician, four

 months after she had been discharged from Dr. Conyers’ care, was

 unnecessary. Dr. Conyers raised the other physician’s treatment

 not as a basis to apportion fault, but as a superseding cause that

 relieved him of any liability. He also challenges jury instructions

 related to this issue.




                                    1
¶3    Ms. Danko concedes preservation. She cross-appeals the trial

 court’s refusal to award some costs that she incurred.

¶4    We conclude that because Dr. Conyers did not present

 evidence that the amputation was extraordinary, the trial court

 acted within its discretion in excluding evidence of the other

 provider’s negligence. Rejecting Dr. Conyers’ other contentions, we

 affirm the judgment. We reverse the cost award in part.

                I. Background and Procedural History

¶5    Dr. Conyers, a hand surgeon, performed carpal tunnel release

 surgery on Ms. Danko’s right wrist on May 3, 2012. During

 post-operative care, he did not order a biopsy to detect possible

 infection. In October 2012, he released her from further care,

 believing that the wound was healing normally and was not

 infected.

¶6    A month later, Ms. Danko sought a second opinion from Dr.

 Frank Scott. Dr. Scott performed a minor procedure on Ms.

 Danko’s wrist. Three weeks later, Dr. Scott was notified that

 cultures taken during the procedure had grown out acid-fast bacilli.

 Ms. Danko was diagnosed with a mycobacterium fortuitum (MBF)

 infection.


                                   2
¶7     On January 16, 2013, Ms. Danko saw Dr. Carla Savelli, an

  infectious disease specialist. Dr. Savelli recommended long-term

  dual therapy involving a regimen of several antibiotics and periodic

  surgical debridement of infected tissue. Ms. Danko began taking

  antibiotics.

¶8     Two weeks later, Ms. Danko consulted Dr. Bennie Lindeque,

  an orthopedic surgeon. Dr. Lindeque recommended amputation of

  Ms. Danko’s forearm “due to the severity and level of tendon and

  nerve involvement.” He performed the amputation on February 11.

¶9     Ms. Danko sued Dr. Conyers, alleging that because he had

  failed to diagnose her MBF infection, he was responsible for the

  amputation. Her retained experts opined that had Dr. Conyers

  ordered a biopsy in July or August, the MBF infection would have

  been detected, dual therapy could have begun, and amputation

  would not have been required.

¶ 10   Among other affirmative defenses in Dr. Conyers’ answer, he

  raised nonparty at fault under section 13-21-111.5, C.R.S. 2017.

  Dr. Conyers obtained an extension for designating nonparties.

  Ultimately, he did not do so.




                                    3
¶ 11   Before trial, Ms. Danko moved to strike the nonparty at fault

  defense and to preclude evidence of other providers’ negligence or

  fault. The trial court granted the motion. After citing Restatement

  (Second) of Torts section 457 (Am. Law Inst. 1965) (hereinafter

  Restatement), CRE 401, 402, and 403, the court explained:

            In this Court’s opinion, it would result in
            confusion to jurors were Dr. Conyers to be
            permitted to muddle the waters by calling into
            question the service rendered by subsequent
            doctors, where under [section 457 of] the
            Restatement of Torts, if the jury finds he was
            negligent, legally he would be the sole cause of
            Ms. Danko’s losses.

¶ 12   During trial, the court adhered to this ruling. Still, the court

  allowed Dr. Conyers to present evidence as to the standard

  treatment of antibiotics and debridement for MBF infections, that

  Ms. Danko could have been treated this way even after she left Dr.

  Conyers’ care, that she was improving under Dr. Savelli’s

  treatment, that post-amputation photographs of the dissected limb

  showed healthy nerves and tendons, and that Dr. Conyers’ care did

  not cause the amputation.

¶ 13   In depositions and at trial, both Dr. Conyers and his principal

  expert acknowledged that failing to diagnose and treat an MBF



                                    4
  infection earlier makes further medical treatment foreseeable. They

  conceded that an undiagnosed and untreated MBF infection can

  lead to amputation of the infected limb.

¶ 14   After Dr. Conyers rested, Ms. Danko moved for a directed

  verdict on causation and requested a nonpattern instruction on the

  original tortfeasor rule embodied in Restatement section 457. The

  trial court denied the motion. Over defense objection, the court

  gave the following nonpattern instruction:

            The plaintiff, Deborah Danko, is entitled to
            recover damages to the full extent of injuries
            and losses suffered as a result of the
            negligence, if any, of the defendant, Dr.
            Conyers, even if the injuries and losses she
            suffered may have been greater due to the
            course of medical care and treatment she
            received thereafter.

  It also gave a standard instruction on causation.

¶ 15   The court rejected Dr. Conyers’ tendered instructions on

  intervening cause. It also rejected a tendered instruction that Dr.

  Conyers would be liable for any additional bodily harm (e.g.,

  amputation caused by subsequent health care providers), “provided

  that you also find that the additional bodily harm resulted from the

  normal efforts of health care providers in rendering aid which the



                                    5
  plaintiff’s injury reasonably required, irrespective of whether such

  acts were done in a proper or negligent manner.”

¶ 16     The jury found Dr. Conyers liable and awarded damages of

  $1.5 million.

       II. The Trial Court Erred by Relying on Section 13-21-111.5 to
         Exclude Evidence That Other Providers Caused Ms. Danko’s
                                   Injuries
¶ 17     The trial court held that “[b]y failing to designate the [other]

  providers as nonparties at fault, Dr. Conyers lost the right to argue

  that these providers caused Ms. Danko’s injuries.” It explained that

  “[t]his ruling serves to exclude at trial any expert testimony

  concerning the standard of care related to the [other] providers.”

¶ 18     The court based this part of its ruling on section

  13-21-111.5(3)(b), which provides that the “[n]egligence or fault of a

  nonparty may be considered . . . if the defending party gives notice

  that a nonparty was wholly or partially at fault within ninety days

  following commencement of the action . . . .” According to Ms.

  Danko, we must affirm the trial court’s exclusion of evidence related

  to other providers’ negligence or fault under this statute.




                                       6
                         A. Standard of Review

¶ 19   Questions of law concerning the application and construction

  of statutes are subject to de novo review. City & Cty. of Denver Sch.

  Dist. No. 1 v. Denver Classroom Teachers Ass’n, 2017 CO 30, ¶ 32.

                               B. Analysis

¶ 20   Ms. Danko asserts that “Colorado law forbids the admission of

  evidence of a non-party’s fault where that non-party was not

  properly designated.” She relies on cases such as Thompson v.

  Colorado & Eastern Railroad Co., 852 P.2d 1328, 1330 (Colo. App.

  1993), where the division held that “a court may not allow the

  finder of fact to consider the negligence or fault of a nonparty

  unless such issue has properly been raised by the defendant in a

  pleading which complies with the requirements of [section]

  13-21-111.5(3).”

¶ 21   But the supreme court has held that “a defendant may always

  attempt to interpose a complete defense that his acts or omissions

  were not the cause of the plaintiff’s injuries.” Redden v. SCI Colo.

  Funeral Servs., Inc., 38 P.3d 75, 81 (Colo. 2001). In other words,

  “[a] defense that the defendant did not cause the plaintiff’s injuries

  is not equivalent to the designation of a non-party because it cannot


                                     7
  result in apportionment of liability, but rather is a complete defense

  if successful.” Id. (citing Staley v. Bridgestone/Firestone, Inc., 106

  F.3d 1504, 1512 (10th Cir. 1997)); see Staley, 106 F.3d at 1512

  (“[Defendant] can only be held liable if its conduct was a

  contributing cause of the injury. It surely must be allowed to

  defend itself by showing someone else’s action or inaction was the

  sole cause of the injury. That is different from apportionment

  between two parties both of whose fault contributed to the injury.”).

¶ 22   Dr. Conyers did not seek to apportion fault between him and

  the other providers. Instead, he sought to admit evidence that their

  care — not his — had caused Ms. Danko’s amputation. Under

  Redden, such evidence is admissible even if a nonparty at fault has

  not been designated under section 13-21-111.5. Thus, this portion

  of the trial court’s rationale was incorrect.

¶ 23   Still, the trial court did not base its evidentiary ruling solely on

  section 13-21-111.5. See URS Grp., Inc. v. Tetra Tech FW, Inc., 181

  P.3d 380, 387 (Colo. App. 2008) (“[W]e must next consider whether

  the judgment may nevertheless be affirmed on one of the alternative

  grounds . . . .”); cf. Foxley v. Foxley, 939 P.2d 455, 458-59 (Colo.

  App. 1996) (appellant must challenge all of the trial court’s


                                      8
  alternative bases for dismissal). So, we turn to whether excluding

  evidence related to the negligence or fault of other providers was

  proper under Restatement section 457, sometimes called the

  original tortfeasor rule.

    III. The Trial Court Did Not Abuse Its Discretion by Relying on
   Restatement Section 457 to Exclude Evidence of Other Providers’
                                 Fault

¶ 24     The trial court found the following under CRE 401 and CRE

  402:

              Even if Dr. Conyers can establish that [the]
              other . . . providers were negligent — an
              assumption made only for purposes of
              considering [Dr. Conyers’ position] — the
              Restatement of Torts [section 457] would hold
              any injuries flowing from this subsequent care
              as being causally related to the care provided
              by Dr. Conyers. Accordingly, the necessity of
              [the] decision to amputate the arm is irrelevant
              if it resulted from any negligence on the part of
              Dr. Conyers to not diagnose the infection.

                          A. Standard of Review

¶ 25     Dr. Conyers urges us to review this ruling de novo. He argues

  that the trial court misinterpreted Restatement section 457 by

  disregarding an exception to initial physician liability and thus

  applied an incorrect legal standard, which raises a question of law.

  See Bd. of Cty. Comm’rs v. DPG Farms, LLC, 2017 COA 83, ¶ 34


                                      9
  (“Whether the court misapplied the law in making evidentiary

  rulings is reviewed de novo.”). And if the court applied an incorrect

  legal standard, Dr. Conyers continues, the court abused its

  discretion. Id. (“An abuse of discretion occurs where the trial

  court’s ruling . . . was based on a misunderstanding or

  misapplication of the law.”).

¶ 26   But this argument must be juxtaposed against a trial court’s

  broad discretion to admit or exclude evidence. See Mullins v. Med.

  Lien Mgmt., Inc., 2013 COA 134, ¶ 35. Thus, while we review the

  court’s application of Restatement section 457 de novo, unless it

  misunderstood this section, the decision to exclude the evidence

  remains within the court’s discretion.

                                  B. Analysis

¶ 27   Colorado has adopted the approach set forth in Restatement

  section 457, which provides:

            If the negligent actor is liable for another’s
            bodily injury, he is also subject to liability for
            any additional bodily harm resulting from
            normal efforts of third persons in rendering aid
            which the other’s injury reasonably requires,
            irrespective of whether such acts are done in a
            proper or a negligent manner.




                                      10
  (Emphasis added.) See Redden, 38 P.3d at 81 n.2 (“We recognize

  that Colorado case law does not absolve tortfeasors of liability when

  the plaintiff’s injuries result from medical treatment reasonably

  sought and directly related to the actions of the original tortfeasor.”

  (citing Restatement § 457)).

¶ 28   Under this approach,

             [i]f the actor knows that his negligence may
             result in harm sufficiently severe to require
             such services, he should also recognize this as
             a risk involved in the other’s forced submission
             to such services, and having put the other in a
             position to require them, the actor is
             responsible for any additional injury resulting
             from the other’s exposure to this risk.

  Restatement § 457 cmt. b (emphasis added).

¶ 29   In successive medical malpractice cases, Restatement

  section 457 applies when a later “physician’s treatment is directed

  toward mitigating the harm inflicted by the first.” Basanti v.

  Metcalf, Civ. A. No. 11-cv-02765-PAB-NYW, 2015 WL 868758, at

  *27 n.50 (D. Colo. Feb. 26, 2015) (quoting Daly v. United States,

  946 F.2d 1467, 1472 (9th Cir. 1991)). Under such circumstances,

  the initial physician is responsible “for the negligent manner in

  which a [subsequent] physician or surgeon treats the case or



                                    11
  diagnoses the injuries or performs an operation.” Restatement

  § 457 cmt. c; see Cramer v. Slater, 204 P.3d 508, 514 (Idaho 2009)

  (Restatement section 457 “generally applies to any subsequent

  medical negligence which is necessary to correct an original act of

  medical negligence, thereby making acts of subsequent medical

  negligence generally foreseeable.”).

¶ 30   Still, “[t]he relationship between the harm inflicted by the first

  physician and the treatment initiated by the second is crucial to

  holding the first physician liable for subsequent malpractice.” Daly,

  946 F.2d at 1471. For example, the Daly court declined to apply

  Restatement section 457 to the first physician where a patient

  “sought treatment from a second physician for an underlying

  ailment rather than for any harm inflicted by earlier treatment.” Id.

  at 1472. Thus, under Restatement section 457, if the jury found

  Dr. Conyers negligent in failing to diagnose the MBF infection, and

  that the infection required further medical treatment, usually he

  would be responsible for the negligent manner in which a later

  provider treated the infection.

¶ 31   An exception exists, however, to the liability of initial

  physicians — they are “not answerable for harm caused by


                                     12
  misconduct which is extraordinary . . . .” Restatement § 457 cmt d.

  Simply put, such misconduct constitutes a superseding cause. See

  Walcott v. Total Petroleum, Inc., 964 P.2d 609, 612 (Colo. App. 1998)

  (“[W]hen it appears to the court in retrospect that it is highly

  extraordinary that an intervening cause has come into operation,

  the court may declare such a force to be a superseding cause.”

  (citing Restatement § 435)).

¶ 32   So, the question becomes this: crediting the evidence cited in

  Dr. Conyers’ opposition, did the trial court misunderstand

  Restatement section 457 by failing to recognize that the amputation

  could have constituted such extraordinary misconduct?

¶ 33   Although Dr. Conyers argued for the exception, the trial court

  did not mention it. Instead, the court addressed only the role

  played by other providers’ alleged negligence. For example, the

  court explained that “[e]ven if [Dr. Conyers] is able to establish that

  [other] providers were negligent in the services they rendered to Ms.

  Danko, this would not absolve [Dr. Conyers] of ultimate liability for

  [Ms. Danko’s] losses.” In saying this much, the court did not

  misunderstand Restatement section 457.




                                    13
¶ 34   We are unwilling to equate the court’s mere silence as to the

  exception with so fundamental a misunderstanding as Dr. Conyers

  asserts, especially in the face of his vigorous advocacy and citation

  of authority discussing the exception. See People v. Harris, 633

  P.2d 1095, 1098 (Colo. App. 1981) (“Where, as here, the objecting

  party expressly raises the question of prejudice and the trial court

  nevertheless admits the evidence, it cannot reasonably be assumed

  that the court neglected to weigh that factor.”); cf. McGill v. DIA

  Airport Parking, LLC, 2016 COA 165, ¶ 31 (“We acknowledge that it

  would have been helpful for the court to address CRE 403 in its

  written order. However, the fact that it did not do so does not

  compel the conclusion that it failed to conduct such an analysis at

  all.”). Instead, we conclude that the court discussed only

  negligence because it had impliedly rejected Dr. Conyers’ evidence

  to support the exception. See, e.g., Janicek v. Obsideo, LLC, 271

  P.3d 1133, 1138 (Colo. App. 2011) (“While the trial court did not

  explicitly reject homeowners’ contractual interpretation argument,

  such a finding was implicit in the court’s ruling that homeowners

  were not entitled to claim a homestead exemption.”).




                                     14
¶ 35   So, having discerned no misunderstanding in the trial court’s

  application of Restatement section 457, we take up the court’s

  evidentiary discretion.

¶ 36   According to Dr. Conyers, the jury should have heard evidence

  related to the fault of the other providers because the facts were

  disputed as to whether their misconduct was extraordinary. He

  primarily relies on deposition testimony of his limb preservation

  expert, who testified that dual therapy cures ninety percent of

  patients like Ms. Danko. The expert continued that he was

  “shocked” by the amputation, which he said was “unnecessary”

  after less than two weeks of dual therapy.

¶ 37   But despite Dr. Conyers’ assertion that the jury should have

  heard evidence about whether the amputation fell within the

  exception for extraordinary treatment, “[i]f the facts are undisputed,

  the court is duty-bound to apply the rules to determine the

  existence or extent of a negligent actor’s conduct.” Weems v.

  Hy-Vee Food Stores, Inc., 526 N.W.2d 571, 574 (Iowa Ct. App.

  1994). Put differently, does the record show a factual dispute

  sufficient to have allowed evidence of the other providers’ fault? For

  the following three reasons, we conclude that the trial court


                                    15
  properly rejected Dr. Conyers’ argument that whether the

  amputation was extraordinary was disputed.

¶ 38   First, an “unnecessary” amputation does not equate to

  extraordinary misconduct. Indeed, Restatement section 457 gives

  the following example: “A’s negligence causes B serious harm. B is

  taken to a hospital. The surgeon improperly diagnoses his case and

  performs an unnecessary operation . . . . A’s negligence is a legal

  cause of the additional harm which B sustains.” Restatement § 457

  cmt. c, illus. 1 (emphasis added).

¶ 39   Second, although Dr. Conyers established that amputation

  under Ms. Danko’s circumstances is rare, especially where dual

  therapy has just begun, both Dr. Conyers and his expert conceded

  amputation was a foreseeable risk of failure to diagnose — and

  hence delay in treating — an MBF infection. See Redden, 38 P.3d

  at 81 (“An intervening cause only relieves the defendant of liability if

  it was not reasonably foreseeable.”). After all, the expert’s opinion

  that ninety percent of patients are cured with dual therapy

  recognizes that ten percent are not. Compare Weems, 526 N.W.2d

  at 574 (The court rejected the argument that medical treatment that

  resulted in a rare side effect was extraordinary, explaining, “[i]t is


                                       16
  immaterial in our analysis that the later injury in this case, spinal

  meningitis, was a rare side effect of the medical treatment. The

  important evidence was . . . that spinal meningitis was a known

  risk of the procedure.”), with Corbett v. Weisband, 551 A.2d 1059,

  1075 (Pa. Super. Ct. 1988) (Whether a physician’s misconduct was

  extraordinary was a question for the jury where testimony showed

  the conduct of the physician was “grossly negligent,” “border[ing] on

  insanity,” and a thing that “no sane orthopedic surgeon would ever

  do.”).

¶ 40       Third, Dr. Conyers did not present any expert testimony that

  the amputation constituted extraordinary misconduct, much less

  gross negligence. See Bremer v. Gonzalez, No. 2 CA-CV 2011-0064,

  2011 WL 6886073, at *5 (Ariz. Ct. App. Dec. 29, 2011) (unpublished

  opinion) (“Du-Brook contends, ‘this case involved unforeseeable and

  extraordinary events,’ but identifies no extraordinarily negligent act

  or omission by Gary’s treating physician. It merely notes Bremer

  had alleged the physician fell below the applicable standard of care.

  This is insufficient to support a finding of a superseding cause as a

  matter of law.”). As in Bremer, Dr. Conyers’ experts only opined

  that “substandard medical care” led to the amputation.


                                      17
¶ 41    Under these circumstances, the trial court acted within its

  discretion in excluding evidence of the other providers’ fault

  because Dr. Conyers had not presented any evidence sufficient to

  invoke the extraordinary misconduct exception.

¶ 42    Yet, perhaps recognizing that the question was close, the trial

  court went further and provided another reason for excluding the

  evidence. The order explained that even if admissible under CRE

  401 and 402, the evidence should be excluded under CRE 403. We

  address this reason next.

       IV. The Trial Court Acted Within Its Discretion in Excluding
            Evidence of Other Providers’ Fault Under CRE 403
¶ 43    The trial court gave two reasons for excluding any evidence

  that other providers’ fault had caused Ms. Danko’s amputation

  under CRE 403.

¶ 44    First, the court explained that allowing such evidence “would

  result in confusion to jurors” if Dr. Conyers was “permitted to

  muddle the waters by calling into question the service rendered by

  subsequent doctors, where under the Restatement of Torts [section

  457], if the jury finds he was negligent, legally he would be the sole

  cause of Ms. Danko’s losses.”



                                    18
¶ 45   Second, the court noted that “[Ms. Danko’s] counsel also

  advised . . . as to his concerns that permitting [Dr. Conyers] to

  present testimony questioning the decisions of [other] providers

  would result in a ‘trial within a trial,’ potentially exceeding the

  14-day period set forth for this proceeding.”

                          A. Standard of Review

¶ 46   A trial court has broad discretion to exclude relevant evidence

  “if its probative value is substantially outweighed by the danger of

  unfair prejudice, confusion of the issues, or misleading the jury, or

  by considerations of undue delay [or] waste of time . . . .” CRE 403;

  see Alhilo v. Kliem, 2016 COA 142, ¶ 9.

                                B. Analysis

¶ 47   Restatement section 457 supports the trial court’s concern

  over jury confusion. If the jury found Dr. Conyers negligent, then it

  would have to decide whether the other providers’ alleged

  “substandard care” rose to the level of extraordinary misconduct.

  And herein lies the problem: what constitutes extraordinary

  misconduct is not so easily defined. Compare Carmichael v. Beller,

  914 P.2d 1051, 1058-59 (Okla. 1996) (Extraordinary medical

  treatment is “something which may not have been within a normal


                                     19
  effort to render aid . . . for the injuries suffered.”), with Deutsch v.

  Shein, 597 S.W.2d 141, 145 (Ky. 1980) (if a “divergence of medical

  opinion” exists about the misconduct, it is not extraordinary),

  abrogated on other grounds by Osborne v. Keeney, 399 S.W.3d 1

  (Ky. 2012).

¶ 48     Restatement section 457 provides two illustrations of

  extraordinary misconduct relieving the original tortfeasor of liability

  for the subsequent misconduct:

        A nurse, unable to bear the sight of the victim’s intense

         suffering, disobeys the surgeon’s instructions and gives an

         injection of morphine so excessive she knows it might be

         lethal. Restatement § 457 cmt. d, illus. 4.

        The victim takes advantage of a hospital stay to have an

         unrelated procedure performed, e.g., the victim’s initial injury

         is a broken leg, but examination reveals an unrelated hernia

         for which surgery is negligently performed. Restatement

         § 457 cmt. e, illus. 6.

  Neither of these scenarios would have been useful in instructing

  the jury here.




                                      20
¶ 49   Instead, the court would have had to draw finer lines than the

  jury might have understood between inadmissible testimony that

  the other providers’ treatment fell below the standard of care and

  admissible testimony that their treatment fell so far below that

  standard as to be extraordinary. Compare Williams v. Le, 662

  S.E.2d 73, 77 (Va. 2008) (“In order to relieve [the physician] of

  liability for his negligent act, the negligence intervening between the

  [physician’s] negligent act and the injury must so entirely supersede

  the operation of the [physician’s] negligence that it alone, without

  any contributing negligence by the [physician] in the slightest

  degree, causes the injury.” (quoting Atkinson v. Scheer, 508 S.E.2d

  68, 71 (1988))), with Puckett v. Mt. Carmel Reg’l Med. Ctr., 228 P.3d

  1048, 1069 (Kan. 2010) (“[W]hether the aspiration resulted from

  negligence or not, it was a foreseeable consequence of the treatment

  alleged to have been necessitated by [the medical providers’] alleged

  negligence. Thus . . . this case is not one of extraordinary

  circumstances . . . .”).

¶ 50   As well, allowing evidence of the other providers’ fault would

  create a trial within a trial. Ms. Danko sought to blame Dr.

  Conyers. If he, in turn, sought to blame the other providers, juror


                                    21
  confusion could result. See Hopey v. Spear, No. 13-CV-2220, 2016

  WL 9665165, at *6 (C.D. Ill. June 23, 2016) (“Such questioning, if

  not reasonably and carefully limited by the court, has the potential

  to turn into a ‘trial within a trial,’ and prejudice and confuse the

  jury as to what is the relevant, actual issue in this case . . . .”). In

  other words, allowing evidence of the other providers’ fault could

  have shifted the jury’s focus from Dr. Conyers’ care of Ms. Danko to

  the other providers’ care. See Manuel v. City of Chicago, 335 F.3d

  592, 597 (7th Cir. 2003) (“If that evidence had been admitted by the

  district court, the parties would have no doubt argued over the

  truthfulness of those allegations, necessarily shifting the focus of

  the trial . . . .”).

¶ 51    Given all this, we conclude that the court acted within its

  discretion in excluding this evidence, under both Restatement

  section 457 and CRE 403.

                           V. Jury Instructions

¶ 52    Lastly, Dr. Conyers challenges the trial court’s jury

  instructions related to the other providers’ fault. Specifically, the

  court gave a midtrial instruction that the “necessity of Ms. Danko’s

  amputation . . . is not a matter that you will be asked to deliberate


                                      22
  upon.” And at the end of the trial, the court gave Ms. Danko’s

  tendered nonpattern instruction saying that she was entitled to

  damages for the full extent of injuries, “even if the injuries and

  losses she suffered may have been greater due to the course of

  medical care and treatment she received thereafter.”

¶ 53   Dr. Conyers also challenges the trial court’s rejection of his

  jury instruction on Restatement section 457 and his intervening

  cause instruction.

                          A. Standard of Review

¶ 54   We review jury instructions de novo to determine whether the

  instructions as a whole accurately informed the jury of the

  governing law. Nibert v. Geico Cas. Co., 2017 COA 23, ¶ 8. If they

  did, we review the trial court’s decision to give or reject a particular

  jury instruction for an abuse of discretion. Id.

                                B. Analysis

¶ 55   Dr. Conyers argues that the instructions given by the trial

  court misstated the law and instead emphasized Ms. Danko’s

  theory of causation. These arguments fall short.

¶ 56   As to the midtrial instruction, Dr. Conyers’ liability for

  damages resulting from the amputation did not depend on whether


                                     23
  it was necessary. See Carter v. Shirley, 488 N.E.2d 16, 20 (Mass.

  App. Ct. 1986) (“We see no reason why the rule should not apply to

  physicians whose original negligence causes the intervention of a

  second physician who either improperly diagnoses the case and

  performs an unnecessary operation or makes a proper diagnosis

  and performs a necessary operation negligently.”); see also

  Restatement § 457 cmt. c. Thus, telling the jury it would not

  deliberate on the necessity of the amputation was within the court’s

  discretion.

¶ 57   As to the nonpattern jury instruction, recall that the trial court

  excluded evidence of the other providers’ fault. For this reason, the

  instruction accurately described Dr. Conyers’ liability under

  Restatement section 457, if the jury found that he had caused Ms.

  Danko’s injury by having failed to diagnose and treat the MBF

  infection.

¶ 58   Still persisting, Dr. Conyers argues that the nonpattern

  instruction should have told the jury that the amputation must

  have resulted “from the normal efforts of third persons in rendering

  aid which the other’s injury reasonably requires.” To be sure, this

  language appears in Restatement section 457 and it was accurately


                                    24
  quoted in Dr. Conyers’ tendered instruction. But his argument

  misapprehends both “normal” and “reasonably requires.”

¶ 59   Restatement section 457 neither defines “normal” nor offers an

  illustrative example. However, comment b to Restatement

  section 443 explains as follows:

            The word “normal” is not used in this Section
            in the sense of what is usual, customary,
            foreseeable, or to be expected. It denotes
            rather the antithesis of abnormal, of
            extraordinary. It means that the court or jury,
            looking at the matter after the event, and
            therefore knowing the situation which existed
            when the new force intervened, does not
            regard its intervention as so extraordinary as
            to fall outside of the class of normal events.
            When a negligently driven automobile hits a
            cow, it is scarcely to be regarded as usual,
            customary, or foreseeable in the ordinary
            sense in which that word is used in negligence
            cases, that the cow, after lying stunned in the
            highway for five minutes, will recover, take
            fright, and make a frantic effort to escape, and
            that in the course of that effort it will charge
            into a bystander, knock him down, and injure
            him. But in retrospect, after the event, this is
            not at all an abnormal consequence of the
            situation which the driver has created. It is to
            be classified as normal, and it will not operate
            as a superseding cause which relieves the
            driver of liability.

  Viewed through this lens, “normal” remains subject to the prior

  analysis of “extraordinary.”


                                     25
¶ 60   Nor must the amputation have been “reasonably required.”

  See Whitaker v. Kruse, 495 N.E.2d 223, 225-26 (Ind. Ct. App. 1986)

  (“The rationale for permitting recovery under this rule is that the

  tort-feasor created the necessity for medical care in the first

  instance. So long as the individual seeking medical care makes a

  reasonable choice of physicians, he is entitled to recover for all

  damages resulting from any aggravation of his original injury

  caused by a physician’s misdiagnosis or mistreatment.”); Rine v.

  Irisari, 420 S.E.2d 541, 545 (W. Va. 1992) (“[T]he aggravation

  caused by the negligent or unskillful treatment by a physician of

  the original injury would not have occurred if there had been no

  original injury.” (quoting Makarenko v. Scott, 55 S.E.2d 88, 93-94

  (W. Va. 1949))).

¶ 61   Instead, the phrase “reasonably required” refers to whether

  Ms. Danko was reasonable in seeking medical treatment for the

  MBF infection and whether that treatment related to an injury

  caused by Dr. Conyers. See Redden, 38 P.3d at 81 n.2; Madrid v.

  Safeway Stores, Inc., 709 P.2d 950, 951 (Colo. App. 1985)

  (“Although Madrid’s experts testified that the initial surgery was

  reasonably required, and was necessitated as a result of the injury


                                    26
  to her toe sustained in the fall, the evidence on this issue was in

  conflict. Safeway produced testimony by four medical doctors that

  the original injury was minor and did not require surgery.”).

¶ 62   The evidence was undisputed that Ms. Danko reasonably

  sought medical treatment related to the MBF infection. Dr. Conyers

  did not argue that further treatment was unnecessary — only that

  he did not cause the MBF infection needing treatment. On this

  basis, the issue faced by the jury was whether Dr. Conyers caused

  Ms. Danko to seek treatment because he was negligent in neither

  diagnosing nor treating the MBF infection. See Rine, 420 S.E.2d at

  544 (“Many courts have recognized the rule that, in cases of

  successive malpractice, the original medical tortfeasor is liable for

  subsequent negligent medical treatment which is undertaken to

  mitigate the harm caused by the original medical tortfeasor.”). Dr.

  Conyers’ tendered instruction misstated this principle.

¶ 63   Turning to the intervening cause instruction requested by Dr.

  Conyers, we conclude that the trial court properly rejected it as

  well. First, as discussed in Part III above, the court acted within its

  discretion in holding that Dr. Conyers’ opposition and his midtrial

  proffer did not include evidence creating a dispute whether the


                                    27
  amputation resulted from extraordinary misconduct. Second,

  treatment by subsequent providers that merely falls below the

  standard of care does not constitute superseding cause. See

  Weems, 526 N.W.2d at 574 (“[T]he trial court correctly rejected [the

  defendant’s] requested jury instruction on superseding cause”

  where “[t]he undisputed evidence revealed that medical treatment

  rendered to Weems was not an extraordinary or unforeseeable

  act.”).

¶ 64    In sum, we conclude that the jury was properly instructed.

                     VI. Ms. Danko’s Cross-Appeal

¶ 65    On cross-appeal, Ms. Danko challenges the trial court’s denial

  of costs totaling $47,530.75. Dr. Conyers does not dispute

  preservation. We affirm in part and reverse in part.

                       A. Additional Background

¶ 66    On October 21, 2015, Ms. Danko made a settlement offer

  under section 13-17-202(1)(a)(I), C.R.S. 2017. Dr. Conyers did not

  accept the offer. The verdict exceeded the amount of the offer.

¶ 67    The trial court reduced the recoverable costs below amounts

  paid by Ms. Danko in four areas. As to Dr. Lindeque, who testified

  for Ms. Danko as a nonretained treating physician — although Ms.


                                   28
  Danko had initially endorsed him as a retained expert — the court

  reduced costs from $45,000 to $15,000. The court reduced the

  costs for ReEntry Rehabilitation Services, which prepared a post-

  amputation life care plan, from $15,434.60 to $10,280.73. It

  disallowed entirely Ms. Danko’s claim for court reporter fees and

  transcript costs totaling $2125.75, all of which involved depositions

  of her treating physicians taken by Dr. Conyers. The court also

  disallowed $7944.14 claimed for a jury consultant and related

  travel expenses.

                     B. Standard of Review and Law

¶ 68   Awarding costs is within the discretion of the trial court, and

  the court’s findings as to the reasonableness and amount of costs

  will be disturbed on appeal only for an abuse of discretion. Archer

  v. Farmer Bros. Co., 90 P.3d 228, 230 (Colo. 2004). A trial court

  abuses its discretion when it acts in a manifestly arbitrary, unfair,

  or unreasonable manner. Id.

¶ 69   According to section 13-17-202(1)(a)(I),

            [i]f the plaintiff serves an offer of settlement in
            writing at any time more than fourteen days
            before the commencement of the trial that is
            rejected by the defendant, and the plaintiff
            recovers a final judgment in excess of the


                                    29
             amount offered, then the plaintiff shall be
             awarded actual costs accruing after the offer of
             settlement to be paid by the defendant.

¶ 70   However, merely by making a statutory settlement offer, a

  party cannot “compel a trial court to award actual costs no matter

  how unreasonable or unnecessary such expenses may have been.

  This would lead to the untenable result that a trial court awards

  costs for expenses which never should have been incurred.” Scholz

  v. Metro. Pathologists, P.C., 851 P.2d 901, 910 (Colo. 1993). Rather,

  in considering whether to award such costs,

             [t]he trial court has no discretion to deny an
             award of actual costs under this statute, so
             long as it determines that those costs are
             reasonable. Nonetheless, the trial court holds
             discretion over the amount of costs to be
             awarded and may disallow certain requested
             costs as unreasonable so long as the court
             includes in the record its reasons for doing so.

  Bennett v. Hickman, 992 P.2d 670, 673 (Colo. App. 1999),

  superseded by statute on other grounds, Ch. 5, sec. 1, § 13-17-202,

  2008 Colo. Sess. Laws 8, as recognized in Miller v. Hancock, 2017

  COA 141.

¶ 71   The proper exercise of this discretion requires the trial court to

  answer two questions:



                                    30
             1. Were the expert’s services reasonably
             necessary to the party’s case?

             2. Did the party expend a reasonable amount
             for the expert’s services?

  Clayton v. Snow, 131 P.3d 1202, 1203 (Colo. App. 2006) (citations

  omitted). The answers to these questions may lead to reduction in

  the amount of costs awarded. See, e.g., Underwood v. Dillon Cos.,

  936 P.2d 612, 616 (Colo. App. 1997) (“On cross-appeal, King

  Soopers claims that the trial court abused its discretion in awarding

  only half of its requested amount of expert witness fees. We

  disagree.”).

¶ 72   “A trial court’s award of costs must be supported by findings

  that, considered together with the record, are sufficient to permit a

  reviewing court to determine the basis for the award.” Miller, ¶ 46.

  Specifically, the findings “must include an explanation of whether

  and which costs are deemed reasonable.” Id.

                             C. Application

¶ 73   Dr. Conyers argues that the trial court properly exercised its

  discretion because Ms. Danko incurred some of the reduced costs

  before the statutory settlement offer. This argument falls short

  because the court made no findings on timing. Instead, it


                                    31
  articulated other reasons for reducing the costs claimed, which we

  address.

                             1. Dr. Lindeque

¶ 74   The trial court found:

             The invoices submitted by Dr. Lindeque do not
             differentiate between the time he spent in an
             expert capacity versus that spent as a treating
             physician. In researching medical literature,
             Dr. Lindeque billed 69.5 hours. At trial, the
             Court was struck by Dr. Lindeque’s testimony
             about the time spent preparing for trial relative
             to the period of time he spent treating Ms.
             Danko. His time treating Ms. Danko was very
             limited, especially when considering the
             significance of the procedure [he] performed.
             By contrast, the time he spent preparing for
             trial exceeded his time with Ms. Danko by
             more than tenfold. The Court finds that
             awarding $15,000 for Dr. Lindeque’s
             preparation and participation at trial is
             reasonable under the circumstances of this
             case.

  Ms. Danko does not assert that these findings lack record support.

  And the findings explain why the court reduced these costs.

¶ 75   Undaunted, Ms. Danko argues that the court should have

  allowed the entire $45,000 charge because Dr. Lindeque testified

  “in good faith,” he “professionally and diligently performed” his




                                    32
  underlying work, and the court did not find his $500 hourly rate

  unreasonable. This argument misses the mark in two ways.

¶ 76     First, Ms. Danko reduces the initial Clayton question — “Were

  the expert’s services reasonably necessary to the party’s case?” — to

  a binary choice. But doing so would deprive trial courts of

  discretion to determine that some, but not all, of an expert’s

  services were reasonably necessary. See Underwood, 936 P.2d at

  616.

¶ 77     Second, at trial Dr. Lindeque did not testify for Ms. Danko as a

  retained expert. And as discussed above, the court precluded all

  evidence that the amputation was unnecessary. Given these

  limitations, the court concluded that his charges were excessive,

  without impugning Dr. Lindeque’s good faith, questioning his

  professionalism, or commenting on his credibility. Cf. In re

  Marriage of Elmer, 936 P.2d 617 (Colo. App. 1997) (finding half of

  fee reasonable in light of charges that trial testimony by expert

  witness was duplicative and $14,470 in requested costs was

  excessive).

¶ 78     On this basis, we discern no abuse of discretion.




                                     33
                       2. ReEntry Rehabilitation

¶ 79   The trial court found:

             Plaintiff seeks $15,434.60 for ReEntry
             Rehabilitation Services. Helen Woodard
             assessed Ms. Danko’s vocational
             rehabilitation. The report completed, and for
             which billing is included, also includes review
             of depositions and review of medical records,
             which are believed to have little relevance to
             the development of a post-amputation Life
             Care Plan. This information is then
             summarized in 12 pages of a 37-page report.
             The Court finds that approximately two-thirds
             of the amount requested for Ms. Woodard, or
             $10,280.73, is reasonable to award as costs.
             The $400 cost for setting up the file is
             regarded as necessary and reasonable.

  Again, Ms. Danko does not assert that these findings lack record

  support.

¶ 80   Instead, she argues that when the trial court concluded

  approximately one third of the report had “little relevance” to the

  care plan, the court made an improper credibility determination.

  But the court did not mention credibility. Nor does Ms. Danko

  explain why the deposition and record review were reasonable and

  necessary to develop the life care plan.

¶ 81   Of course, the court’s one-third reduction of the costs claimed

  was an approximation based on the portion of the report the court


                                    34
  questioned. But “[t]he trial court’s goal when awarding attorney

  fees and costs ‘is to do rough justice, not to achieve auditing

  perfection.’” Estate of Casper v. Guarantee Tr. Life Ins. Co., 2016

  COA 167, ¶ 70 (citation omitted) (cert. granted June 26, 2017).

¶ 82   For these reasons, we cannot say the trial court abused its

  discretion in reducing the ReEntry Rehabilitation costs.

                 3. Court Reporter Fees and Transcripts

¶ 83   The trial court found:

             An objection is also presented for the
             deposition fees totaling $2,125.75 for a
             number of Plaintiff’s treating physicians, as
             these were taken when Plaintiff objected to
             informal discovery by Defendant. The Court
             agrees that Plaintiff could have cooperated
             with Defendant’s approach on this point, and
             this amount of $2,125.75 is disallowed from
             Plaintiff’s bill of costs.

  Here, too, Ms. Danko does not assert that these findings lack record

  support.

¶ 84   Rather, she asserts that “[r]egardless of the precipitating

  factors for Defendant’s decision to take depositions of Plaintiff’s

  treating physicians,” the record does not show that the related

  “transcription and reporter fees actually expended were

  unreasonable.” But this assertion begs the question of whether, as


                                    35
  the court found, Ms. Danko could have avoided these costs. After

  all, to recover deposition costs, a party must show “the taking of the

  deposition and its general content were reasonably necessary.”

  Cherry Creek Sch. Dist. No. 5 v. Voelker, 859 P.2d 805, 813 (Colo.

  1993).

¶ 85   Thus, the findings support the discretionary decision to

  disallow these costs.

                           4. Jury Consulting

¶ 86   The trial court found:

            Defendant objects to an expense of $6,474.57
            for a jury consultant, plus travel expenses of
            $1,469.57 for travel on short notice. The
            Court agrees with Defendant that these two
            expenses are unnecessary to Plaintiff’s counsel
            [sic] presentation of the case to a jury, and are
            disallowed.

  Unlike the three other findings discussed, this finding does not

  involve any factual questions resolvable by record examination.

¶ 87   The parties have not cited, nor have we found, Colorado

  authority addressing jury consulting expenses as recoverable costs.

  Dr. Conyers cites several unpublished decisions from the United

  States District Court for the District of Colorado. Ms. Danko

  responds that federal law defines recoverable costs more narrowly


                                   36
  than does Colorado law, citing Crawford Fitting Co. v. J.T. Gibbons,

  Inc., 482 U.S. 437, 441-42 (1987). She is correct.

¶ 88   Although section 13-17-202(1)(b) does not mention jury

  consulting expenses, use of “including” in the statute “means that

  the items of ‘actual costs’ listed are illustrative rather than

  exhaustive.” Catlin v. Tormey Bewley Corp., 219 P.3d 407, 416

  (Colo. App. 2009).

¶ 89   On the one hand, authority in other states is sparse. Citing

  federal precedent, one state has held that such expenses are not

  recoverable as costs. Delmonico v. Crespo, 127 So. 3d 576, 579

  (Fla. Dist. Ct. App. 2012) (“We agree with other jurisdictions which

  have held that costs and fees associated with jury consultants are

  not recoverable.”); see also City of Shreveport v. Chanse Gas Corp.,

  794 So. 2d 962, 979 (La. Ct. App. 2001) (“Here, the District Court

  viewed the mock trial and jury consultant as overhead items which

  cannot be reimbursed. Given that these exercises were strictly to

  aid the attorneys and yielded only marginal results, we cannot say

  the District Court abused its great discretion in denying these items

  as costs.”).




                                     37
¶ 90   On the other hand, we recognize that “[r]ising costs of

  increasingly specialized lawyers, the need to deploy expensive

  experts, jury consultants, and all the associated expenses have

  priced some parties out of the market.” Marc Galanter, The

  Vanishing Trial: An Examination of Trials and Related Matters in

  Federal and State Courts, 1 J. Empirical Legal Stud. 459, 517

  (2004) (footnote omitted), cited with approval in State ex rel. Crown

  Power & Equip. Co. v. Ravens, 309 S.W.3d 798, 804 (Mo. 2009).

¶ 91   Balancing this limited authority against the concern over

  rising litigation expenses leads to considering the policy underlying

  our settlement offer statute. “The intent of section 13-17-202 is to

  encourage settlements by imposing costs upon a rejecting party in

  the event the final result is less favorable to that party than the

  offer.” Hall v. Frankel, 190 P.3d 852, 866 (Colo. App. 2008). In

  other words, “[t]he purpose of section 13-17-202 is to encourage the

  settlement of litigation by increasing the cost of proceeding with a

  lawsuit after the opposing party has made a reasonable settlement

  offer.” Lawry v. Palm, 192 P.3d 550, 565 (Colo. App. 2008).

¶ 92   These statements of purpose and intent tip the scales in favor

  of recovery of jury consulting expenses by a party who made a


                                    38
  statutory settlement offer, which was rejected, and did better than

  the offer at trial.

¶ 93      Nor would allowing Ms. Danko to recover the jury consulting

  expenses contravene the trial court’s discretion over

  reasonableness. Recall, the court did not find these expenses

  unreasonable, in whole or in part. Rather, the court found them

  “unnecessary to Plaintiff’s counsel [sic] presentation of the case to a

  jury.”

¶ 94      But the statute does not impose a necessity requirement on

  recovery of “actual costs accruing after the offer.” And while

  reasonableness has been implied as a precondition to recovery,

  reasonableness is a lower standard than necessity. Thus, the

  court’s finding of “unnecessary” does not support disallowing this

  cost.

¶ 95      In sum, the trial court’s cost award is reversed as to the

  $7944.14 jury consulting and related travel expenses. In all other

  respects, the award is affirmed.




                                      39
                            VII. Conclusion

¶ 96   The judgment is affirmed. The trial court’s cost award is

  affirmed in part and reversed in part. On remand, the trial court

  shall increase the costs awarded to Ms. Danko by $7944.14.

       JUDGE GRAHAM and JUDGE TERRY concur.




                                   40
