To establish causation in a bad faith breach of an insurance contract, the plaintiff must prove the insurer acted unreasonably and the insured’s unreasonable conduct caused the plaintiff’s injury or damages. To do this, the plaintiff must show the defendant’s conduct “proximately caused” the claimed injury. Proximate cause is comprised of two components: causation in fact and legal causation. Legal causation refers to the scope or foreseeability of liability, and causation in fact asks whether “but for the alleged conduct, the harm would not have occurred.”
In Lorenzen, the Court was tasked with addressing whether the District Court erred when it excluded the claimant’s expert testimony in his bad faith insurance claim, without which, the claimant argued, he could not establish causation. Claimant suffered a herniated disc while working as a groundskeeper for a country club. Surgery was recommended, however, respondents initially denied this request. The surgery was ultimately performed and billed to claimant’s personal insurance, but the initial denial resulted in a two-week delay until the surgery’s performance. Respondents eventually filed an admission on the claim, however, claimant alleged he suffered permanent right foot weakness due to nerve impairment as a result of the delay.
Claimant intended to establish causation by proffering expert testimony which relied on a theory that prolonged nerve compression from a herniated disc leads to nerve damage and, therefore, surgery must be performed sooner rather than later. In keeping with precedent, the District Court ruled however the “sooner is better” theory of causation was not “sufficiently grounded in reliable science,” had “no prior history of adoption or consideration or approval by other courts,” and “had not been subjected to sufficient peer review or study” to allow the court to assess the theory’s reliability, and thus the expert evidence would require the jury to “speculate as to whether and to what extent the delay . . . caused the current presentation.” On that basis then, the District Court disallowed the expert testimony under Colorado Rule of Evidence 702. Respondents then filed a Motion for Summary Judgment on the theory that without the testimony claimant could not prove his case. The District Court granted this Motion.
In reviewing the District Court’s ruling, the Court of Appeals agreed with the District Court’s standard of review and found that while the notion of early treatment is well within common knowledge that would be obvious to the average juror, it is not a theory of causation upon which claimant could rely. The Court ruled claimant’s experts’ theory of causation did not reliably connect the premise that nerve compression should be alleviated by prompt surgery and the conclusion that it is more likely than not the 13 day delay in undergoing surgery caused claimant’s permanent impairment. The Court reasoned, what was necessary evidence in this claim was evidence that would allow a jury to find, but for the delay, claimant would not have suffered the impairment and not the identification of the precise moment claimant’s nerve damage became irreparable as he argued. Therefore, the District Court did not err in excluding claimant’s expert testimony.
Lorenzen v. Pinnacol Assurance, Nos. 17CA0044 & 17CA0677 (Colo. Ct. App. April 18, 2019)