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 June 11, 2026
2026 COA 49
No. 25CA0886, Nunn v. Nestor — Civil Procedure — Special Verdict — General Verdict Accompanied by Answer to Interrogatories
In this civil case, which involves claims against a police officer
for unreasonable seizure and excessive use of force, a division of the
court of appeals considers whether the jury returned a special
verdict under C.R.C.P. 49(a) or a general verdict with special
interrogatories under C.R.C.P. 49(b). The answer matters because
whether the defendant preserved his contention that the verdict is
irreconcilably inconsistent depends on the type of verdict that the
jury returned. Expanding on the analysis in Morales v. Golston,
141 P.3d 901 (Colo. App. 2005), the division concludes that the
jury’s verdict was a general verdict with special interrogatories and,
therefore, the defendant’s challenge is unpreserved. The division further concludes that any errors in the district
court’s jury instructions were harmless and that the defendant
failed to demonstrate that he was prejudiced by the court’s decision
to strike his expert witness. Accordingly, the division affirms the
judgment. COLORADO COURT OF APPEALS 2026 COA 49
Court of Appeals No. 25CA0886 Adams County District Court No. 23CV30700 Honorable Teri L. Vasquez, Judge
Preston Nunn,
Plaintiff-Appellee,
v.
Gabriel Nestor,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE MOULTRIE Gomez and Berger*, JJ., concur
Announced June 11, 2026
Ascend Counsel, LLC, Edward Milo Schwab, Casey Alexa Peel, Denver, Colorado, for Plaintiff-Appellee
Peter A. Schulte, City Attorney, Gregory R. Bueno, Assistant City Attorney, Melissa A. Holmes, Assistant City Attorney, Aurora, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Gabriel Nestor, appeals the judgment entered in
favor of plaintiff, Preston Nunn. Nunn asserted several claims,
including excessive force and unreasonable seizure, against
Nestor — a police officer with the Aurora Police Department — after
Nunn was injured during an arrest involving Nestor and other
police officers. A jury found in Nunn’s favor on the excessive force
claim but found in Nestor’s favor on the unreasonable seizure and
other claims. Nestor contends that the judgment should be
reversed because (1) the jury’s verdict is irreconcilably inconsistent;
(2) the district court gave erroneous instructions to the jury on
Nunn’s unreasonable seizure claim; and (3) the court abused its
discretion by striking his nonretained rebuttal expert witness
(rebuttal expert) on the last day of trial.
¶2 To resolve Nestor’s first contention, we must determine
whether the jury’s verdict was a special verdict under C.R.C.P.
49(a) — as Nestor argues — or a general verdict with special
interrogatories under C.R.C.P. 49(b) — as Nunn argues. The
answer matters because, as discussed below, whether Nestor’s
challenge to the verdict is preserved depends on the type of verdict
that the jury returned. Expanding on a division of this court’s
1 analysis in Morales v. Golston, 141 P.3d 901 (Colo. App. 2005), we
conclude that the jury verdict in this case was a general verdict
with special interrogatories and, therefore, Nestor’s contention that
the verdict is inconsistent is unpreserved.
¶3 Regarding Nestor’s second contention, we conclude that any
errors in the court’s unreasonable seizure instructions were
harmless. Finally, with respect to Nestor’s third contention, we
conclude that, because Nestor has failed to demonstrate any
prejudice from the court’s decision to strike his rebuttal expert, any
error by the court in doing so was harmless. And because we’ve
rejected each of Nestor’s contentions of error, we affirm the
judgment.
I. Background
¶4 In May 2021, Nestor pulled over Nunn for failing to yield to an
emergency vehicle. Nunn — a young Black man — handed Nestor
his registration, but when he reached for his waistband to get his
driver’s license out of his wallet, Nestor drew his gun, demanded
Nunn put his hands on his head, and called for backup.
¶5 Nunn got out of his car — still being held at gunpoint — as
more police officers arrived. One of the officers, Cody Goetz, tackled
2 Nunn to the ground. As Goetz and the other officers attempted to
restrain Nunn, Nestor fired his Taser at Nunn twice. Nunn was
arrested and charged with several crimes, but those charges were
ultimately dismissed.
¶6 Nunn sued Nestor,1 asserting claims of excessive force (for
both holding him at gunpoint and tasing him), unreasonable
seizure, failure to intervene in Goetz’s use of excessive force, and an
equal protection violation based on racial discrimination. After a
four-day trial, the jury found Nestor liable for excessive force based
on holding Nunn at gunpoint but rejected each of Nunn’s other
claims. Nestor appeals.
II. Inconsistent Verdict
¶7 Nestor contends that the jury’s verdict finding him liable for
excessive force but not liable for unreasonable seizure is
irreconcilably inconsistent because “if a jury finds that an officer
engaged in excessive force, they necessarily must also find that the
1 Nunn sued all of the officers involved, but by the time the case
went to trial, only his claims against Nestor and Goetz remained. Nunn’s claims against Goetz were unsuccessful at trial.
3 officer engaged in an unlawful seizure.” Nunn asserts2 that Nestor
failed to preserve this issue because the jury returned a general
verdict accompanied by answers to interrogatories under C.R.C.P.
49(b) and Nestor failed to object before the jury was dismissed.
Nestor counters that the jury returned a special verdict under Rule
49(a) and therefore he could properly object through post-trial
motions. We agree with Nunn.
A. Additional Background
¶8 The relevant portions of the verdict form, with the jury’s
answers, read as follows:
SPECIAL VERDICT FORM – DEFENDANT NESTOR
....
SECTION I: PRESTON NUNN’S EXCESSIVE FORCE CLAIM AGAINST GABRIEL NESTOR
1. Did Defendant Gabriel Nestor deprive Plaintiff Preston Nunn of his constitutional right to be free from excessive force?
2 We note that Nunn cites two unpublished opinions from this court
in support of his arguments. Absent exceptions inapplicable here, this court’s policy prohibits citations to our opinions that are not selected for official publication. Colo. Jud. Branch, Court of Appeals Policies, Policy Concerning Citation of Opinions Not Selected for Official Publication (2026), https://perma.cc/ZQW2-H29D. We admonish counsel not to repeat this violation.
4 Yes X No____
(a). Did Defendant Gabriel Nestor deprive Plaintiff Preston Nunn of his constitutional right to be free from excessive force when he pointed his duty weapon at Plaintiff Nunn?
Yes X No____
(b). Did Defendant Gabriel Nestor deprive Plaintiff Preston Nunn of his constitutional right to be free from excessive force when he used his Taser on Plaintiff Nunn?
Yes____ No X
SECTION II: PRESTON NUNN’S UNREASONABLE SEIZURE CLAIM AGAINST GABRIEL NESTOR
1. Did Defendant Gabriel Nestor deprive Plaintiff Preston Nunn of his constitutional right to be free from unlawful seizure?
¶9 Nestor didn’t object or otherwise allege any inconsistencies in
the verdict before the jury was discharged. But seventeen days
after the jury returned its verdict, he filed a motion for a new trial,
asserting that the verdict was irreconcilably inconsistent.
5 ¶ 10 The district court concluded that the verdict could be
reconciled and denied the motion.
B. Standard of Review
¶ 11 We interpret the Colorado Rules of Civil Procedure de novo.
Mason v. Farm Credit of S. Colo., ACA, 2018 CO 46, ¶ 7. But
“because C.R.C.P. 49 is identical to Fed. R. Civ. P. 49, we may look
to federal authority for guidance in construing the Colorado rule.”3
Morales, 141 P.3d at 905.
C. C.R.C.P. 49 and Preservation Under Morales v. Golston
¶ 12 C.R.C.P. 49 covers two types of verdicts. Under Rule 49(a),
“[t]he court may require a jury to return only a special verdict in the
form of a special written finding upon each issue of fact.” And
under Rule 49(b), “[t]he court may submit to the jury, together with
appropriate forms for a general verdict, written interrogatories upon
3 C.R.C.P. 49 is substantively identical to the current version of Fed.
R. Civ. P. 49 and was wholly identical to the federal rule before the federal rule was amended in 2007. See Morales v. Golston, 141 P.3d 901, 905 (Colo. App. 2005); Fed. R. Civ. P. 49 advisory committee’s note to 2007 amendment (“The language of Rule 49 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.”).
6 one or more issues of fact, the decision of which is necessary to a
verdict.”
¶ 13 In Morales, a division of this court addressed whether, under
Rule 49, the “failure to object to any inconsistencies in the verdict
before the jury is discharged waives the right to raise the issue in
post-trial motions or on appeal.” 141 P.3d at 905. Relying on
federal authorities interpreting Fed. R. Civ. P. 49, the Morales
division held that whether a party’s “failure to object constitutes a
waiver . . . hinges on the characterization of the verdicts as either
special verdicts or general verdicts with answers to special
interrogatories.” 141 P.3d at 905.
¶ 14 A party who fails to object to a Rule 49(b) general verdict
coupled with written interrogatories before the jury is discharged
“waives any future challenge to the inconsistency because [their]
failure to object timely deprives the court of the option of sending
the jury back for further deliberations.” Id. But if the verdict is a
special verdict under Rule 49(a), “the inconsistency would not be
resubmitted to the jury in any event, . . . and there is no equitable
7 reason to require a timely objection” before the jury is released.4
Id.; see In re Estate of Chavez, 2022 COA 89M, ¶¶ 31-32 (applying
Morales).
¶ 15 Thus, whether Nestor’s challenge to the verdict is preserved
depends on whether the jury returned a special verdict or a general
verdict accompanied by answers to interrogatories. But the Morales
division didn’t provide much guidance about how to determine
which category a verdict falls under. We endeavor to do so now.
D. The Different Types of Verdicts Under C.R.C.P. 49
¶ 16 The Colorado Rules of Civil Procedure contemplate three types
of verdicts: general verdicts, special verdicts, and general verdicts
accompanied by answers to interrogatories. C.R.C.P. 49; cf.
4 After Morales was decided, the United States Supreme Court held
that federal trial courts have “the inherent power to rescind a jury discharge order and recall a jury for further deliberations after identifying an error in the jury’s verdict.” Dietz v. Bouldin, 579 U.S. 40, 42 (2016). And the Tenth Circuit recently relied on Dietz to hold that a court “may ask the jury to reconsider” a Fed. R. Civ. P. 49(a) special verdict and, therefore, “if a party does not point out the problems with the verdict to the court and request jury reconsideration, it forfeits the issue on appeal.” Culp v. Remington of Montrose Golf Club, LLC, 133 F.4th 968, 991 (10th Cir. 2025). To the extent that these decisions impact the Morales division’s holdings as to C.R.C.P. 49(a) special verdicts, we don’t address them because we conclude that the verdict in this case falls under C.R.C.P. 49(b).
8 Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1031 (9th Cir.
2003) (“The Federal Rules of Civil Procedure explicitly
contemplate . . . special verdicts and general verdicts with
interrogatories and implicitly contemplate common law general
verdicts without interrogatories.” (citations omitted)).
¶ 17 A general verdict is a “verdict by which the jury finds in favor
of one party or the other, as opposed to resolving specific fact
questions.” Black’s Law Dictionary 1877 (12th ed. 2024). These
verdicts “‘simply ask the jury’ to say who wins, and if it’s the
plaintiff, to say how much [he] gets.” Debity v. Monroe Cnty. Bd. of
Educ., 134 F.4th 389, 398 (6th Cir. 2025) (quoting Turyna v.
Martam Constr. Co., 83 F.3d 178, 181 (7th Cir. 1996)). Thus, “the
hallmark of a general verdict is that it requires the jury to announce
the ‘ultimate legal result of each claim.’” Morales, 141 P.3d at 906
(quoting Johnson v. Ablt Trucking Co., 412 F.3d 1138, 1142 (10th
Cir. 2005), abrogated on other grounds by, Culp v. Remington of
Montrose Golf Club, LLC, 133 F.4th 968, 991 (10th Cir. 2025)). Put
differently, a jury returns a general verdict when it leaves nothing
for the judge to do other than to enter judgment. Team Contractors,
L.L.C. v. Waypoint Nola, L.L.C., 976 F.3d 509, 519 (5th Cir. 2020).
9 ¶ 18 In contrast, a special verdict is one in which “the jury makes
findings only on factual issues submitted to them by the judge, who
then decides the legal effect of the verdict.” Black’s Law Dictionary
at 1878; see C.R.C.P. 49(a) (“The court may require a jury to return
only a special verdict in the form of a special written finding upon
each issue of fact.” (emphasis added)). “If the court asks the jury for
special verdicts, then it becomes the role of the court to decide
whether there is liability, which it does by applying the law to the
jury’s factual findings.” Debity, 134 F.4th at 399; accord Morales,
141 P.3d at 906.
¶ 19 A court can properly include mixed questions of law and fact
in a special verdict. See 9B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2506, Westlaw (3d ed. database
updated Apr. 2026) (“It long has been understood that law and fact
are categories that are not so neatly separated and that it frequently
will be necessary and desirable for the trial judge to submit to the
jury mixed questions of law and fact.”); see also Zhang, 339 F.3d at
1031 (The Ninth Circuit has “found no precise label” for a jury’s
“legal conclusions as to subsidiary issues, such as affirmative
defenses, or the amount of damages owed, which are neither
10 findings of fact nor quite ‘verdicts.’”). But a verdict is plainly not a
special verdict “when it asks the jury to declare the ultimate result
of a claim.” Debity, 134 F.4th at 400; accord Team Contractors, 976
F.3d at 520; Jarvis v. Ford Motor Co., 283 F.3d 33, 55 (2d Cir.
2002); Zhang, 339 F.3d at 1031; Frank C. Pollara Grp., LLC v. Ocean
View Inv. Holding, LLC, 784 F.3d 177, 190 (3d Cir. 2015); Mason v.
Ford Motor Co., 307 F.3d 1271, 1274-75 (11th Cir. 2002). In other
words, it’s only a special verdict if “[t]he judgment itself require[s]
application of the law by the judge to the facts found by the jury.”
Johnson, 412 F.3d at 1142; see Morales, 141 P.3d at 906.
¶ 20 Finally, a “general verdict with interrogatories combines a
general verdict with factual questions that would, standing alone,
be special verdicts.” Debity, 134 F.4th at 400. Thus, “[i]f a court
asks for a general verdict, then any factual question is an
interrogatory.” Id. By including interrogatories with a general
verdict, a court can require jurors “to give close attention to the
more important issues[,] and their answers serve to check the
propriety of the general verdict.” Portage II v. Bryant Petroleum
Corp., 899 F.2d 1514, 1520 (6th Cir. 1990) (citation omitted).
11 ¶ 21 The difference between the three types of verdicts was aptly
described by the Ninth Circuit:
If the jury announces only its ultimate conclusions, it returns an ordinary general verdict; if it makes factual findings in addition to the ultimate legal conclusions, it returns a general verdict with interrogatories. If it returns only factual findings, leaving the court to determine the ultimate legal result, it returns a special verdict.
Zhang, 339 F.3d at 1031.
¶ 22 To summarize, if the jury left nothing for the judge to do but
enter judgment, then it returned a general verdict. Team
Contractors, 976 F.3d at 519. But if the judgment required the
court to apply law to facts found by the jury, then the jury returned
a special verdict. Johnson, 412 F.3d at 1142.
E. Application to This Case
¶ 23 Although the verdict form in this case was labeled a “special
verdict form,” the questions the jury was required to answer
included the following:
• “Did Defendant Gabriel Nestor deprive Plaintiff Preston
Nunn of his constitutional right to be free from excessive
force?”
12 • “Did Defendant Gabriel Nestor deprive Plaintiff Preston
Nunn of his constitutional right to be free from unlawful
seizure?”
¶ 24 The verdict form didn’t ask the jury simply to make factual
determinations relevant to the elements of Nunn’s claims; indeed,
the jury wasn’t asked about any element of any claim. Instead, the
above questions “require[d] the jury to announce the ‘ultimate legal
result of each claim.’” Morales, 141 P.3d at 906 (citation omitted).
And by answering these questions and then determining the
amount of damages Nunn was entitled to, the jury left nothing for
the court to do but enter judgment. See Team Contractors, 976
F.3d at 519. Thus, the jury returned a general verdict.
¶ 25 That the verdict form was labeled a “special verdict form”
doesn’t change this outcome because the label given the verdict
form isn’t controlling. Debity, 134 F.4th at 401; see Jarvis, 283
F.3d at 56 (“[W]here a jury is instructed to apply legal principles
and assign liability, ‘the answers to the questions submitted to the
jury are not special verdicts, despite the use of those words in the
title appended to the form . . . .’” (quoting Lavoie v. Pac. Press &
Shear Co., 975 F.2d 48, 54 (2d Cir. 1992))); see also Team
13 Contractors, 976 F.3d at 517 (“If the form satisfies Rule 49(b) except
for not stating that the jury finds for one party, it can still be a
general verdict. Such a verdict form would not fully comply with
Rule 49(b), but it would be an even worse fit for Rule 49(a).”).
¶ 26 Other questions on the verdict form, such as whether Nunn
sustained damages and whether Nestor’s acts caused them, asked
for factual answers that couldn’t, by themselves, fully resolve
Nunn’s claims. Thus, we conclude those questions were
interrogatories related to the general verdict under Rule 49(b). See
Debity, 134 F.4th at 402.
¶ 27 Accordingly, Nestor needed to object to any inconsistencies in
the verdict before the jury was discharged to preserve his challenge
for our review. See Morales, 141 P.3d at 905. It’s undisputed that
he didn’t. Therefore, he waived the claimed error, and we won’t
further consider his contention.
III. Unreasonable Seizure Jury Instructions
¶ 28 The district court instructed the jury on Nunn’s unreasonable
seizure claim as follows:
In Colorado, a person has the right to be free from an unreasonable seizure of his person. In order to prove the defendant[] deprived the
14 plaintiff of this right, the plaintiff must prove the following . . . elements by a preponderance of the evidence:
1. Defendant Nestor seized Plaintiff Nunn’s person;
2. In seizing Plaintiff Nunn’s person, Defendant acted intentionally; and
3. The seizure was unreasonable.
If you find Plaintiff has proven all three of these elements, then your verdict must be for Plaintiff on his claim for unreasonable seizure.
On the other hand, if you do not find that Plaintiff has proven one or more of these elements, then your verdict must be for Defendant.
¶ 29 In a separate instruction, the court elaborated on what “seize”
means:
A defendant “seizes” the plaintiff’s person when he restrains the plaintiff’s liberty through coercion, physical force, or a show of authority. A person’s liberty is restrained when, under all of the circumstances, a reasonable person would not have felt free to ignore the presence of law enforcement officers and to go about his business.
In determining whether a reasonable person in the plaintiff’s position would have felt free to leave, consider all of the circumstances, including:
1. the number of officers present;
15 2. whether weapons were displayed;
3. whether the encounter occurred in a public or nonpublic setting;
4. whether the officer’s manner would imply that compliance would be compelled; and
5. whether the officers advised the plaintiff that he was free to leave.
¶ 30 Nestor contends that these instructions (together,
unreasonable seizure instructions) were erroneous. We conclude
that any error was harmless.
A. Standard of Review and Preservation
¶ 31 “We review jury instructions de novo to determine whether the
instructions as a whole accurately informed the jury of the
governing law.” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 266 P.3d
412, 418 (Colo. App. 2011). “As long as the instruction properly
informs the jury of the law, a trial court has broad discretion to
determine the form and style of the instructions.” Hendricks v.
Allied Waste Transp., Inc., 2012 COA 88, ¶ 15.
¶ 32 We review a district court’s refusal to give a particular jury
instruction for an abuse of discretion. Walker v. Ford Motor Co.,
2017 CO 102, ¶ 9. A court abuses its discretion when its ruling is
16 manifestly arbitrary, unreasonable, or unfair or it misapplies the
law. Nibert v. Geico Cas. Co., 2017 COA 23, ¶ 8.
¶ 33 Nunn argues that this issue is unpreserved because Nestor’s
arguments in support of his motion for a directed verdict didn’t
amount to an objection to the unreasonable seizure instructions.
But the record demonstrates that Nestor opposed the unreasonable
seizure instructions before trial and during the instruction
conference.5 Accordingly, we conclude that this issue is preserved.
¶ 34 We review preserved instructional errors under the harmless
error standard, meaning we won’t reverse the judgment absent a
showing of substantial, prejudicial error. Estate of Chavez, ¶ 22.
“Prejudicial error exists when the record shows that a jury might
have reached a different verdict if a proper instruction had been
given.” Schuessler v. Wolter, 2012 COA 86, ¶ 11.
5 Nunn originally proposed the language in the unreasonable
seizure instructions as a single instruction. After hearing arguments of counsel, the court modified and accepted Nunn’s proposed instruction by separating it into two instructions.
17 B. Any Errors in the Unreasonable Seizure Instructions Were Harmless
¶ 35 Nunn’s position at trial was, in part, that he was “seized” the
moment that Nestor pointed a gun at him during the traffic stop.
Nestor asserted that he pointed his gun at Nunn as a show of
authority and, in order for that action to constitute a seizure, Nunn
was required to prove that he submitted to Nestor’s show of
authority.
¶ 36 Nestor thus asserts that the unreasonable seizure instructions
were erroneous because they (1) didn’t specify the “discrete” use of
force upon which his alleged seizure of Nunn was based; (2) didn’t
mention that for a seizure based on a show of authority, “the
suspect must have actually submitted to the show of authority”;
and (3) were “exceedingly vague” and confusing.
¶ 37 Assuming without deciding that the district court’s
unreasonable seizure instructions were erroneous, we conclude that
such errors were harmless because the jury returned a verdict in
Nestor’s favor on the unreasonable seizure claim. See Ajay Sports,
Inc. v. Casazza, 1 P.3d 267, 275 (Colo. App. 2000); C.R.C.P. 61.
18 ¶ 38 We further reject Nestor’s assertion that the instructions
“tainted the jury’s perceptions,” which “led the jury to
simultaneously (and contradictorily) find Nestor liable on the
excessive force claim.” Although one of the elements Nunn needed
to prove to prevail on his excessive force claim was that a “seizure”
occurred, see Thomas v. Durastanti, 607 F.3d 655, 663 (10th Cir.
2010), the district court’s excessive force instruction didn’t
incorporate — explicitly or otherwise — the unreasonable seizure
instructions. Instead, with respect to the excessive force claim, the
court instructed the jury that Nunn needed to prove that Nestor
“either (a) intentionally applied physical force against [Nunn], or
(b) restricted [Nunn]’s freedom of movement through a show of
authority.” Nestor doesn’t challenge the propriety of the excessive
force instruction on appeal.
¶ 39 Moreover, Nestor fails to explain, and we fail to see, how any
errors in the unreasonable seizure instructions prejudiced him. See
Schuessler, ¶ 11. To the contrary, Nestor argues that “for a jury to
find that a law enforcement officer engaged in excessive force, [it]
must also find that the officer committed an unlawful seizure” and
that the unreasonable seizure instructions were “inconsistent with
19 the notion that an instance of excessive force is an unlawful
seizure.” But his argument suggests that a properly instructed jury
would’ve returned a verdict in Nunn’s favor on the excessive force
claim and the unreasonable seizure claim. In other words, Nestor
would’ve been liable for both claims, instead of just one.6
¶ 40 We therefore conclude that even if the jury had been
instructed as Nestor asserts it should have been, the jury would
likely have reached the same verdicts — or returned an even worse
outcome for Nestor — so any errors were harmless. See Harris Grp.,
Inc. v. Robinson, 209 P.3d 1188, 1200 (Colo. App. 2009).
IV. Exclusion of Rebuttal Expert
¶ 41 Finally, Nestor contends that the district court abused its
discretion by excluding his rebuttal expert on the final day of trial.
We aren’t persuaded.
6 Indeed, the district court raised the potential for duplicative
damages sua sponte and, with the parties’ consent, instructed the jury that “[i]f you find for [Nunn] on more than one claim for relief, you may award him damages only once for the same injuries, damages, and losses.”
20 A. Additional Background
¶ 42 On the morning of the final day of trial, Nunn’s counsel orally
moved to strike Nestor’s rebuttal expert for inadequate disclosure.
Nestor’s counsel responded, “That’s the first I’m hearing of it,” but
didn’t otherwise contend that Nunn’s motion to strike was untimely.
¶ 43 Nunn’s counsel told the district court that Nestor’s disclosure
document provided the rebuttal expert’s opinions but didn’t identify
the information he considered in reaching them.7 After the court
reviewed the disclosure, it agreed that the disclosure document
contained the expert’s opinions but not an “explanation as to why
he has those opinions or what he’s relying on in forming those
specific opinions.”
¶ 44 After the district court confirmed with Nestor’s counsel that he
intended to ask the expert questions about the information he relied
on in forming his opinions, the court said,
The problem is that all you’ve . . . put in here are opinions. There is nothing in here about the basis for those opinions. And so if he were permitted to testify, all he would be permitted to testify to would be his experience and these opinions, but without a basis for the opinions, [Nunn’s attorneys] are put in the position of
7 The disclosure isn’t in the appellate record.
21 not being able to cross-examine him on the basis for the opinions.
¶ 45 The court thus determined that the disclosure violated
C.R.C.P. 26(a)(2)(B)(II) and granted Nunn’s oral motion to strike
Nestor’s rebuttal expert.
B. Standard of Review and Applicable Law
¶ 46 We review the district court’s imposition of sanctions for
discovery violations for an abuse of discretion. Cath. Health
Initiatives Colo. v. Earl Swensson Assocs., Inc., 2017 CO 94, ¶ 8.
¶ 47 C.R.C.P. 26(a)(2)(B)(II)(a) specifies that a party who intends to
introduce testimony from a nonretained expert witness must
disclose “a complete description of all opinions to be expressed and
the basis and reasons therefor.”
¶ 48 Additionally, C.R.C.P. 37(c)(1) authorizes the district court to
sanction a party who fails to comply with Rule 26’s disclosure
requirements. Cath. Health Initiatives Colo., ¶ 11. Under Rule
37(c)(1), a party who lacks substantial justification for failing to
disclose the information required by Rule 26 is prohibited from
presenting the undisclosed evidence at trial unless (1) the
nondisclosure hasn’t caused or won’t cause “significant harm” to
22 the opposing party, or (2) preclusion of the information is
disproportionate to any harm caused. C.R.C.P. 37(c)(1). Rule 37
thus requires the district court to assess the harm associated with
late disclosure and determine the appropriate proportional
sanction. Cath. Health Initiatives Colo., ¶¶ 11, 13; see also Todd v.
Bear Valley Vill. Apartments, 980 P.2d 973, 978 (Colo. 1999) (laying
out factors for the court to consider in its Rule 37(c)(1) analysis).
¶ 49 In evaluating the harm caused by a party’s nondisclosure, the
primary inquiry is whether the untimely disclosure of the evidence
will prejudice the opposing party by denying that party an adequate
opportunity to defend against the evidence. Todd, 980 P.2d at 979.
The burden is on the nondisclosing party to establish that
admission of the evidence is proper despite the untimely disclosure.
See id. at 978.
C. The District Court Didn’t Abuse Its Discretion by Excluding Nestor’s Rebuttal Expert
¶ 50 Nestor asserts that the district court reversibly erred by
(1) unfairly applying its own discovery deadlines to consider Nunn’s
motion to strike and (2) failing to conduct a harm and
23 proportionality analysis before excluding his rebuttal expert. We
disagree.
¶ 51 First, we reject Nestor’s assertion that the district court
unfairly applied discovery deadlines to him but not to Nunn.
Although Nestor asserts that the district court declined to consider
the discovery motions that he filed after the discovery dispute
deadline, the record shows that the court did ultimately hear his
untimely challenge to Nunn’s nonretained expert witness at a
pretrial conference held a few days before trial. The court limited
the topics to which Nunn’s nonretained expert witness could testify,
and Nunn ultimately didn’t call that witness at trial.
¶ 52 Nevertheless, Nestor also argues that the district court applied
its rules unfairly because he challenged Nunn’s nonretained expert
before trial through his (untimely) motion to strike and in his trial
brief, while he wasn’t made aware of Nunn’s objection to his
rebuttal expert until Nunn objected on the final day of trial.8 But
Nestor didn’t raise any of these concerns with the court. Thus, his
8 Nestor’s motion to strike also challenged Nunn’s retained expert
witness, but Nestor didn’t reassert that issue in the district court, nor has he raised the issue in his appellate briefs.
24 argument is unpreserved, and we decline to address it further. See
Bertoia v. Galaxy Mgmt. Co., 2025 COA 55, ¶ 40 (“It is
well-established Colorado law that new arguments may not be
raised for the first time on appeal [in civil cases].”).
¶ 53 Second, even if the district court abused its discretion by
failing to explicitly conduct a harm and proportionality analysis
before excluding Nestor’s rebuttal expert, its failure to do so was
harmless.
¶ 54 In Todd, our supreme court laid out a nonexhaustive list of
factors for a court to consider in its Rule 37(c)(1) analysis:
(1) the importance of the witness’s testimony;
(2) the explanation of the party for its failure to comply with the required disclosure;
(3) the potential prejudice or surprise to the party against whom the testimony is offered that would arise from allowing the testimony;
(4) the availability of a continuance to cure such prejudice;
(5) the extent to which introducing such testimony would disrupt the trial; and
(6) the non-disclosing party’s bad faith or willfulness.
Todd, 980 P.2d at 978.
25 ¶ 55 The district court didn’t address whether Nestor’s late
disclosure was substantially justified or whether excluding his
rebuttal expert was necessary to mitigate any prejudice to Nunn’s
case resulting from the inadequate disclosure. But Nestor — as the
nondisclosing party — bore the burden of demonstrating that his
inadequate disclosure was substantially justified, that it was
harmless, or that exclusion of his rebuttal expert would be
disproportionate. See id. Yet Nestor’s counsel didn’t make any
argument to the district court regarding these factors. Nor does
Nestor make any such argument on appeal.
¶ 56 The exclusion of evidence doesn’t warrant reversal unless it
affects a substantial right of the party. See CRE 103(a); C.R.C.P.
61; C.A.R. 35(c). That means that there must be a “fair assurance
that the error substantially influenced the outcome of the case or
impaired the basic fairness of the trial itself.” Stockdale v.
Ellsworth, 2017 CO 109, ¶ 32 (citation omitted). And it’s Nestor’s
burden to show that the claimed error wasn’t harmless. See
Curry v. Brewer, 2025 COA 28, ¶ 54.
¶ 57 Although Nestor asserts that the impact of the exclusion of the
rebuttal expert’s testimony is “clear,” he doesn’t explain what the
26 prejudice was — i.e., how the expert’s testimony would’ve
substantially influenced the outcome of this case. And to the extent
he contends that the jury necessarily credited Nunn’s retained
expert witness because his own expert was excluded, we won’t
consider this argument, other than to note that it is conclusory,
because he raised it for the first time in his reply brief. See
Caylao-Do v. Logue, 2025 COA 42, ¶ 33. Thus, even if the court
abused its discretion by failing to consider the Todd factors, we
conclude any error was harmless.
V. Disposition
¶ 58 The judgment is affirmed.
JUDGE GOMEZ and JUDGE BERGER concur.