dissenting.
In closing argument, Blood's counsel repeatedly argued that punitive damages were justified in this case because Qwest had failed to adopt a periodic pole inspection program subsequent to Blood's infury-a line of argument that was improper under the district court's pretrial ruling excluding evidence of Qwest's post-injury conduct. In order to gauge the impact of that closing argument on the jury, one need only consider the fact that the district court, on the basis of trial proceedings alone, ordered post-trial *1101trebling of the punitive damages award against Qwest. Given counsel's singular focus on post-injury conduct, coupled with the significant impact that such a focus had on the court (and hence the jury), the district court's oral instruction to the jury to consider evidence only up to the date of Blood's injury was ineffective. In fact, the oral instruction was inconsistent with the written instruction on punitive damages that the jury had before it, as the written instruction contained no such temporal limitation. The jury was thus faced with inconsistent instructions on the temporal issue, making the majority's heavy reliance on the presumption that "jurors follow their instructions" unconvincing at best. Because there is little assurance that the jury's punitive damages award was not based on post-accident conduct, the punitive damages award must be set aside.1 Accordingly, I respectfully dissent.
Prior to trial, the district court granted Qwest's motion in limine excluding from trial any evidence of Qwest's conduct that took place after Blood's injury. Despite this ruling, Blood's counsel during closing argument repeatedly referenced Qwest's post-injury conduct-specifically, its failure to adopt a periodic pole inspection program subsequent to Blood's injury-in urging the jury to award punitive damages. Counsel stated, for example, "[AJs you heard yesterday, [Qwest] continues, even after this happened, continues to refuse to maintain, inspect, repair, [and] replace utility poles in Colorado." He added: "Qwest has continued to engage in the practice of not inspecting, maintaining, and repairing its utility poles on a routine basis." And again: "[Qwest] admit[s], we don't inspect and maintain any of the 157,862 poles we have, and they still don't do it, even today." And again: "If [this witness] was working at Qwest, there would be an inspection program going on today." And again: "(Elven today, three years after [Blood was injured], [Qwest] still is not out there inspecting, maintaining, repairing on a regular basis a single pole."
Concluding his closing argument, Blood's counsel told the jury that:
Nothing tells you more about the purposely-committed conduct than what has happened at Qwest since June 20th, 2004. Knowing what has happened, hearing all of these witnesses, their own witnesses, Qwest still, today, does not have a program for inspecting, maintaining, and repairing its telephone poles.
Qwest is not listening.... You and only you have the power to make Qwest listen.
Your verdict sends a message.... Your verdict sends a message that says you must pay for what you did and you must pay some punishment because you continue to do it. When that message is sent out of this courtroom, within an hour that message is going to be heard at headquarters. That message is going to be read. Those Qwest phones, they're going to be ringing because you have sent a message that no one else can send.
And maybe out of something bad.... There's got to be some good in there, maybe out of something really bad some good can come. And the good is that the poles get repaired, the poles get replaced, there is not another Andy Blood.
And that if sometime in the near future we were to see [a Qwest officer] and we were to say to him ... do you have an inspection and maintenance and repair program [He] would look at us and say, Yep, I've got the budget and I've got the instruction. That's the message that your verdict can send. [Emphasis added.]
The majority finds that defense counsel's singular and repeated focus on Qwest's failure to adopt a post-injury pole inspection program during closing argument was cured *1102by the court's oral statement?2 to the jury that it should not consider post-infury evi-denee in determining whether to award punitive damages. See maj. op. at 1079-80, 1087-88. Yet the majority overestimates the effectiveness of the court's oral instruction and underestimates the prejudicial impact that the closing argument would have had on the jury.
First, the trial court's oral instruction to the jury that it should only focus on pre-accident conduct in determining punitive damages would have made little sense to the jury, given that virtually the entirety of Blood's argument for punitive damages was based on Qwest's failure to adopt a pole inspection program after the accidents3 Indeed, as noted above, Blood's counsel focused almost exelusively on post-accident conduct, stating, inter alia, that "Nothing tells you more about the purposely-committed conduct"-that is, conduct that would justify an award of punitive damages-"than what has happened at Qwest since June 29th, 2004." (Emphasis added.) The combination of the counsel's singular focus on post-accident conduct and the court's admonition to consider only pre-accident conduct, in effect, left the jury with nothing on which to base a punitive damages verdict 4+-leading to the strong possibility that the jury would discount the court's oral admonition.
More importantly, the court's oral instruction was inconsistent with the written instruction on punitive damages that the jury had before it. The written instruction on punitive damages contained no temporal limitation.5 As a result, the written instruction permitted the jury to consider post-accident conduct. Therefore, when the jury conducted deliberations in the jury room, it had before it no temporal limitation at all in the written instruction, or (at best) an oral temporal limitation that was inconsistent with both the written instruction and counsel's argument for punitive damages. The majority discusses at length, maj. op. at 1088-91, the presumption that jurors are presumed to follow their instructions, but its reliance on that presumption is misplaced. Indeed, it is impossible to determine which instruction-the written instruction or the oral instruetion-we should assume the jury followed. In fact, it is more likely that the jury followed the written instruction and applied no temporal limit at all, as it was the written, not the oral, instruction that the jury had before it in the jury room.
Furthermore, the majority underestimates the prejudicial impact of counsel's foeus on Qwest's post-accident failure to adopt a pole inspection program. The prejudicial nature of the references is plainly evidenced by the fact that the district court trebled the punitive damages award after trial due to Qwest's post-injury conduct. Under section 13-21-102(8)(a), C.R.S. (2010), a district court may "increase any award of exemplary damages, to a sum not to exceed three times the amount of actual damages, if it is shown that ... [the defendant has continued the behavior ... which is the subject of the claim *1103against the defendant in a willful and wanton manner during the pendency of the case." (Emphasis added.) Here, the district court trebled the amount of punitive damages for "continued behavior" without holding a hearing; in other words, it ordered a trebling of punitive damages based on trial evidence and argument alone6 If the district court felt compelled to treble punitive damages based on what it heard at trial about Qwest's post-injury conduct, it is difficult to see how the jury could have ignored such post-injury conduct. Under these circumstances, the district court's oral instruction to the jury that it should consider only conduct up to the injury was ineffective at best.
The majority discounts the prejudicial impact of the post-accident evidence because Qwest had failed to adopt a periodic pole inspection program prior to the injury. In other words, in the majority's view, there was plenty of evidence of Qwest's bad conduct prior to the accident to justify the punitive damages award. Maj. op. at 1089-90. Indeed, the majority goes so far as to suggest that its substantive due process review-that is, its conclusion that the $18 million punitive damages award in this case is justified, id. at 1092-1100-protects Qwest against procedural error. Id. at 1090. But simply because the majority believes that an $18 million punitive damages award is justified by the evidence does not mean that the jury would have arrived at the same award had the procedural error not occurred. Substantive review does not replace procedural review. See, eg., State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed2d 585 (2008) (noting that there are both procedural and substantive due process limitations on punitive damages awards).
Additionally, the majority mistakenly suggests that Qwest was actually better off than it should have been because "it received the benefit of an overly-protective [oral] jury instruction" from the district court. Maj. op. at 1088. According to the majority, the court's oral instruction was "overly-protective" because it did not allow the jury to consider evidence of Qwest's potential harm to nonparties "for the legitimate purpose of assessing the reprehensibility of Qwest's conduct." Id.; see also id. at 1088 (referencing "the trial court's overly-protective instruetion"); id. at 1094 n.16 (same). As a preliminary matter, the majority's "over-protective" description rests entirely on its faulty assumption that the jury would have followed the court's oral admonition in the face of a contradictory written instruction and counsel's singular post-accident focus. But its over-protective description fails on its own accord as well. As noted above, section 13-21-102(8)(a) allows the district court to treble a punitive damages award where "[the defendant has continued the behavior" that forms the basis of the claim against it. Post-accident evidence is thus generally inadmissible at trial in Colorado. Bennett v. Greeley Gas Co., 969 P.2d 754, 761 (Colo.App.1998) (the court, but not the jury, is able to consider actions after the wrongful conduct alleged in the claim, "but only that behavior during the pendency of the case") (emphasis added). Under the majority's reasoning, however, evidence of post-accident conduct could be used as a basis for the jury's punitive damages award (as long as the jury was instructed to consider the evidence as going toward reprehensibility) 7 and be used as a basis for trebling the jury's punitive damages award under section 13-21-102(8)(a). See maj. op. at 1094 n.16. The majority's "over-protective" reasoning thus leads to impermissible dou*1104ble-counting of post-accident evidence, and as such, cannot serve as a basis for affirming the jury's punitive damages award in this case.
Finally, the majority mistakenly suggests that counsel's post-injury focus was not particularly problematic because Qwest had "opened the door" to consideration of post-injury evidence by exploring with a witness the contractual relationship between Qwest and Xeel. Maj. op. at 1091 ("Blood's closing argument regarding Qwest's post-accident conduct was consistent with the trial court's ruling that Qwest had opened the door to this evidence."). However, the trial court was careful to narrowly cabin its modification of its ruling on the motion in limine. The trial court stated that, "I did allow some limited inquiry [into post-injury conduct] because I found [Qwest] opened the door as to the inquiry concerning the fact that Public Service was still paying rent and Qwest was still receiving rent subsequent to 2004" in accordance with the contract between Quest and Xeel, "[and there was, I think, a question or two along those lines." However, it stated that although it had permitted "a question or two along those lines," post-injury conduct was "not appropriate to be considered for punitive damages and I'll so instruct the jury. I don't think that's an appropriate comment to be made." Therefore, while the district court found that Qwest had opened the door to a limited inquiry into post-injury conduct for purposes of determining the contractual relationship between Qwest and Xeel, the court rejected the opening-the-door theory as it applied to punitive damages. Thus, while the majority and the court of appeals correctly point out that counsel's arguments "were consistent" with the court's admission of post-injury evidence for the limited purpose of exploring the contract question, see maj. op. at 1091; Blood, 224 P.3d at 321, that fact simply demonstrates that, as the district court concluded, counsel had strayed out of the permissible contractual context into the impermissible punitive damages arena. See Blood, 224 P.3d at 388 (Richman, J., dissenting) (concluding that the opening of the door theory "goes only so far"). As such, the opening-the-door theory merely reinforces the conclusion that counsel made impermissible arguments that had a significant impact on the jury.
In sum, given the trial court's recognition that counsel's arguments had gone far beyond the context in which the postinjury evidence had been properly admitted-coupled with the fact that the written instruction contained no temporal limitation and therefore conflicted with the oral instruction-there is no assurance that the jury's punitive damages award was not based on post-accident conduct. The jury's punitive damages award therefore must be set aside. Accordingly, I respectfully dissent from the majority's opinion.
I am authorized to say that JUSTICE RICE joins in this dissent.
. The majority considers at length the issue of whether the court's oral instruction cured any error caused by counsel's arguments under the rubric of an as-applied challenge, maj. op. at 1088-92, although it then, somewhat inconsistently, suggests that such arguments were not preserved for our review. Id. at 1081 n. 4 ("Qwest did not seek certiorari review of the court of appeals' decision that the trial court did not abuse its discretion in denying the motion for mistrial."). If the court were to hold, as I urge, that the oral instruction did not cure the prejudice caused by counsel's post-accident arguments, a new trial would be required-that is, a mistrial should have been granted.
. Immediately after Blood's closing, Qwest moved for a mistrial on the grounds the Blood's counsel had improperly argued for punitive damages based on post-accident conduct. The court denied the mistrial but told the jury that "if you were to consider ... punitive damages in this matter ... the only conduct of Qwest that can be considered in relation to punitive damages is the conduct prior to the date of the accident."
. The majority emphasizes the fact that, after the court's oral instruction to the jury, counsel used the proper date during his rebuttal closing. Maj. op. at 1080, 1091-92. The brief references in rebuttal closing argument to the proper time period, however, are insignificant given the multiple references to Qwest's failure to adopt a post-accident pole inspection program during closing argument.
. As noted below, the majority suggests that the jury could have based its punitive damages on Qwest's pre-accident conduct. Maj. op. at 1089-90. Yet that is not what Blood's counsel asked the jury to do.
. - Jury Instruction No. 21 states that:
If you find in favor of Andrew Blood, on his claim of negligence, then you shall consider whether the Plaintiff should recover damages against Defendant Qwest. If you find beyond a reasonable doubt that Defendant Qwest acted in a willful and wanton manner, in causing Plaintiff's injuries, damages and losses, you shall determine the amount of punitive damages, if any, that the Plaintiff should recover.
Punitive damages, if awarded, are to punish Defendant Qwest and to serve as an example to others.
. The court of appeals reversed the trebling of damages on the ground that the district court failed to hold a hearing before ruling. Blood v. Qwest Services Corp., 224 P.3d 301, 318 (Colo.App.2009). - Blood did not file a cross-petition for certiorari on the hearing question, and therefore the issue is not before us.
. Even if the majority were correct that Philip Morris permits, in the abstract, the consideration of post-accident conduct that poses potential harm to others with regard to assessing reprehensibility, see maj. op. at 1091 n. 13, it errs in importing that concept, without analysis, into Colorado's statutory system for assessing punitive damages, which permits the district court to treble the jury's punitive damages award based on post-accident conduct. See Blood, 224 P.3d at 319 n. 5 (noting the "unusual" and "unique" nature of Colorado's two-tiered punitive damages statutory scheme).