dissenting.
In reversing the trial court's discretionary decision, the majority mischaracterizes the hearsay at issue as a statement of blame and applies an overly narrow approach to the diagnostic process. Therefore, I respectfully dissent.
I. Hearsay Evidence of Plaintiff's Recent Cocaine Use
A. Facts Relevant to Dissent
When Ms. Hurd allegedly made the hearsay statements concerning plaintiffs recent cocaine use to Dr. Kelly, plaintiff was suffering from severe and irreversible brain injury. His health care providers then understood that toxic material released from the cyst during the needle biopsy had caused cardiac arrest. But no one-neither Ms. Hurd, nor *997Dr. Kelly, nor any of the other physicians-knew why routine resuscitation procedures had failed to revive an otherwise apparently healthy patient of plaintiff's age for several minutes, during which he suffered the brain damage. In opposing guardian's motion in limine to exclude the statements as hearsay, defendants offered an explanation for this medical mystery-physiological changes associated with frequent cocaine use could have reduced the effectiveness of the resuscitation procedures used on plaintiff. The first trial judge agreed, noting that cocaine use was "really the key to this case," and held the statements admissible under CRE 808(4).
At that time, Ms. Hurd's whereabouts were unknown. After she surfaced following the mistrial, she submitted an affidavit admitting having discussed with Dr. Kelly plaintiff's cocaine use in the 19908, but denying all statements that plaintiff had done so recently. At the second trial, she testified consistent with the affidavit. Thus, the record includes no direct evidence of her intent as to the latter statements.
B. CRE 808(4)
CRE 8083(4) exempts from the hearsay rule:
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception - or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
The federal rule is identical and includes a lengthy comment. The Colorado rule does not include a narrative comment.
C. Sceope of Review
The trial court has "wide discretion" in determining admissibility of evidence under hearsay exceptions. Canape v. Peterson, 878 P.2d 83, 88 (Colo.App.1994), aff'd, 897 P.2d 762 (Colo.1995); accord People v. Lagunas, 710 P.2d 1145, 1148 (Colo.App.1985) ("broad discretion"). In reviewing for an abuse of discretion, "we ask not whether we would have reached a different result but, rather, whether the trial court's decision fell within a range of reasonable options." E-470 Pub. Highway Auth. v. Revenig, 140 P.3d 227, 230-31 (Colo.App.2006).
D. The Statements Were Within the Plain Language of CRE 808(4)
According to Dr. Kelly, Ms. Hurd asked him "if cocaine could have had anything to do with what happened," and then described plaintiffs recent use of the drug. CRE 808(4) includes statements about "medical history." Drug use would be part of a patient's medical history. See Phillips v. Hillcrest Med. Cir., 244 F.3d 790, 800 (10th Cir.2001) ("[Drug use is an important indicator of a patient's physical condition and is crucial to determining whether to undertake additional testing.").1
CRE 803(4) also includes statements concerning the "cause" of "past ... symptoms." During the needle biopsy, plaintiff went into shock and his heart stopped. Before he could be revived, he suffered brain damage. Thus, shock was a "past symptom," and Ms. Hurd provided information about recent cocaine use as its potential cause.
Nevertheless, the majority would not apply CRE 803(4) because, it asserts, the statements fail the reliability test and only allocate blame. I begin with the latter assertion because if the majority is correct, it obviates the reliability inquiry.
E. Statements of Responsibility
The majority says, "Hearsay statements relating to fault which are not relevant to diagnosis or treatment are inadmissible." I would not apply this limitation here because doing so fails to distinguish causation from fault and is at odds with recent Colorado law.
Initially, as the majority's citations illustrate, most cases turning on fault involve victim statements identifying the perpetrator *998of a crime, often sexual assault against a child. Here, these cases are uninformative for at least the following reasons:
e Such an assault usually does not leave any medical question unanswered. See State v. Hinnant, 351 N.C. 277, 290, 523 S.E.2d 663, 671 (2000) ("The initial examination ... consisted of an external genital exam. That examination did not reveal any signs of trauma.").
® Child victims may not comprehend the medical setting. See United States v. White, 11 F.3d 1446, 1450 (8th Cir.1993) ("there was no evidence that [the child declarant] thought he was talking to a medical professional").
e The medical setting has been exploited to obtain a damning accusation from the child victim. See Hinnant, 351 N.C. at 290, 523 S.E.2d at 671 ("Inherent in this type of suggestive questioning is the danger of planting the idea of sexual abuse in the mind of the child.").
The majority cites no case, nor have I found one, in which the fault exception has been applied to exclude a statement about causation. See, e.g., State v. Robinson, 718 N.W.2d 400, 404 (Minn.2006) (victim's "description of a hand slap as the mechanism of her injury inadmissible under the medical diagnosis exception"); State v. Leone, 581 A.2d 394, 399 (Me.1990) (hearsay exception "only sufficiently broad to cover the cause of Leone's injury (a gunshot), but not statements of fault or blame (e., that Leone did not initiate the shootout ...)"). The absence of any such authority can be explained by considering the hearsay declarant's interest in "the accuracy of the information provided." 5 Jack B. Weinstein, Wetnstein's Federal Evidence § 803.06[5] (2d ed.2011).
On the one hand, the declarant has such an interest when describing the force that caused the injury. Seq, eg., Thomas v. State, 288 Ga. App. 602, 654 S.E.2d 682, 687 (2007) ("Itlhe same guarantee of trustworthiness" "also extends to statements as to causation") (internal quotation omitted); United States v. Joe, 8 F.3d 1488, 1494 (10th Cir.1993) (the "guaranty of trustworthiness extends to statements of causation," citing comment to Fed.R.Evid. 803(4)).
On the other hand, the declarant has no such interest when casting blame. See, e.g., People v. Kosters, 175 Mich.App. 748, 765, 438 N.W.2d 651, 659 (1989) ("statements fixing fault are not generally motivated by the purpose of obtaining medical treatment"); Carton v. Missouri Pac. R.R. Co., 303 Ark. 568, 575, 798 S.W.2d 674, 677 (1990) ("plaintiff's statement that her foot slipped and she fell was admissible, but not that she had 'apparently accumulated some diesel fuel on her sole," explaining "the patient had no motivation to be truthful in the [latter] statement because she knew that it would not matter in her treatment whether she had snow or diesel fuel on her boot").
Further, "cause" has been interpreted broadly, and "fault" narrowly. The court in United States v. Belfast, 611 F.3d 783, 819 (11th Cir.2010), upheld refusal to redact references to "abuse" and "torture" from a patient's medical record, explaining:
The statements by the medical professionals in this case that the victims' wounds and burns were the result of abuse or torture (as opposed to, for example, a vehicular or workplace accident) were statements of causation. See United States v. Iron Thunder, 714 F.2d 765, 772-73 (8th Cir.1983) (holding that a statement that a victim was "raped" in her medical records was a statement as to causation, not fault). These records do not assign any fault for the abuse or torture, nor do they insinuate impermissibly that the "abuse" or "torture" satisfied any particular statutory or legal definition of those terms.
The comment to Fed.R.Evid. 808(4) offers as an example, "Thus a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light." Numerous cases have cited this example with approval. See, e.g., Belfast, 611 F.3d at 819.2
Ms. Hurd's alleged reference to plaintiffs recent cocaine use did not attribute fault to plaintiff for his actions. Nor did she have *999any incentive to exculpate defendants by blaming plaintiff for the catastrophic outcome of a routine procedure. Applying the example from the federal rule comment, her statement was one of causation ("I was hit by a car"), not of blame ("because the car ran a red light").
The majority does not support its conclusion that Ms. Hurd sought to assign fault with any evidence that Ms. Hurd was motivated to start the blame game. To the contrary, as the majority recognizes in discussing the evidentiary ruling on litigiousness, "guardian established that plaintiffs family was not contemplating bringing a lawsuit immediately after he was injured." Nothing in the record indicates that Ms. Hurd had a different agenda.
The majority's reliance on Clark v. People, 103 Colo. 371, 373, 86 P.2d 257, 259 (1939), for an expansive view of fault is unpersuasive, for the following reasons:
@First, Clark predates adoption of the Colorado Rules of Evidence by almost four decades.
e It involved a statement identifying the allegedly culpable actor, (a physician accused of having performed an unlawful abortion), not a neutral cause.
@ Recent Colorado cases have admitted similar inculpatory statements. See People v. Oldsen, 697 P.2d 787, 788 (Colo. App.1984) (statement of a child sexual assault victim identifying her father as perpetrator), aff'd on other grounds, 732 P.2d 1132 (Colo.1986), superseded in part by statute as stated in People v. District Court, 791 P.2d 682, 685 n. 3 (Colo.1990); People v. Martinez, 18 P.3d 831, 835-36 (Colo.App.2000) (victim's statement identifying defendant as perpetrator made in response to paramedie's question).
@The Oldsen court did not cite Clark. Nor did the division in Martinez.
Nor do the out-of-state cases cited by the majority persuade me to apply the fault exception here. Brown v. Seaboard Airline R.R. Co., 434 F.2d 1101, 1103-04 (5th Cir. 1970), was not decided under Fed.R.Evid. 803(4), and the excluded statement-that a projection from the train hit the plaintiff-ascribes fault to the railroad. Likewise, in State v. Gattis, 166 N.C.App. 1, 601 S.E.2d 205, 211 (2004), the patient's statement about his gunshot wound having resulted from an accidental discharge involved fault-or lack thereof. Further, unlike the information on past symptoms provided by Ms. Hurd, the statements in these two cases do not include any medically useful information.
Under the "responsibility" heading, the majority briefly raises two other potentially limiting principles on CRE 808(4): "[the statements had no relevance to medical treatment plaintiff would receive"; and "[ Dr.] Kelly did nothing with the cocaine use information." I address them separately.
1. Prospective Application
The plain ianguage of the rule encompasses old information ("medical history, or past . symptoms"). While many statements made by or about a patient could deal with the patient's present symptoms, any such limitation would exclude statements that contain medically useful information about past symptoms, including those that may be in remission. But such statements could equally assist in obtaining either an accurate diagnosis or efficacious treatment, which are the touchstones for the cireumstantial guarantee of reliability.
The plain language of the rule does not suggest a rigid "prospective application" restriction. In the sense that treatment follows diagnosis, treatment is prospective. Diagnosis, however, constitutes "the determination of the nature of a disease, injury, or congenital defect," and is thus distinct from treatment, nor does it require the potential for treatment to exist. Stedman's Medical Dictionary 531 (28th ed. 2006). Use of the disjunctive ("diagnosis or treatment") means that the exception applies even where treatment is not an option. People v. Valenzuela, 216 P.3d 588, 592 (Colo.2009) (use of the disjunctive "or" demarks different categories).3
*1000Cases cited by the majority to support a prospective application limitation merely reject statements of victims identifying the perpetrators of crimes as not pertinent to diagnosis or treatment. See, e.g., Hinnant, 523 S.E.2d at 670 (victim no longer needed medical treatment when she later made statement identifying perpetrator); State v. Waddell, 351 N.C. 413, 527 S.E.2d 644 (2000) (similar).4
Thus, the references in these cases to the passage of time between the victim first receiving medical treatment and later making the hearsay accusations at issue do not represent a rationale, or at least not one applicable here. First, if such accusations have no significance for diagnosis or treatment, then when the accusations were made is irrelevant to the admissibility calculus. But Ms. Hurd's statement could have contributed to a more complete diagnosis. agnoses of sexual assault were both complete and certain upon the victim's first presentation to a physician, subsequent information-especially that identifying the assailant-afforded no medical reason to look backwards. Here, in contrast, the inability to resuscitate plaintiff more quickly was unexplained despite the diagnosis of brain injury, and recent cocaine use provided a possible explanation that could bring closure to the diagnostic process. Second, because the di-
2. Use of the Information by Dr. Kelly
The majority says, "[that [Dr.] Kelly did nothing with the cocaine use information allegedly relayed to him by Hurd is telling." I agree that he did not chart, much less use, this information. I disagree that his inaction has any significance because the rule does not require that the physician to whom the statement was made actually rely 'on it, but only that it be the kind of statement "reasonably pertinent to diagnosis or treatment." 5
The majority relies on language in Allee that the hearsay statement was inadmissible because the physician had not relied on it. See People v. Allee, 77 P.3d 831, 834-35 (Colo. However, the division first observed that the record did not "indicate that the identification of defendant as the victim's assailant was necessary for or pertinent to the physician's diagnosis or treatment," id. at 834, and it cited no authority for the latter statement, see id. Further, one division of the court of appeals is not bound by the decision of another division. See, e.g., Am. Family Mut. Ins. Co. v. Murakami, 169 P.3d 192, 193 (Colo.App.2007).
More problematic is the majority's reference to the statement in King v. People, 785 P.2d 596, 602 (Colo.1990), that CRE 803(4) "requires as a foundation for admission that the proponent establish that statements made to a nontreating psychiatrist be reasonably pertinent to diagnosis and be relied upon by the psychiatrist in arriving at an expert opinion." I do not read King as establishing an absolute actual reliance requirement for the following reasons.
® Because the psychiatrist in King relied on the hearsay statement, the court did not decide whether lack of such reliance would alone preclude admission under CRE 803(4). The majority cites no Colorado Supreme Court case, nor am I aware of one, answering this question.
@ The test in CRE 808(4)-"as reasonably pertinent to diagnosis or treatment"could be satisfied by testimony concerning what physicians normally do with *1001such information. See 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:75, at 664 (3d ed.2007) ("these words set a standard that is objective"); Weinstein, Weinstein's Federal Evidence § 808.06[2] ("To be admissible, a statement made for purposes of medical diagnosis must be one that an expert in the field would be justified in relying upon in rendering an opinion."); see also, e.g., State v. Sickles, 655 A.2d 1254, 1257 (Me.1995) (explaining, under provision identical to CRE 803(4), that the "reasonably pertinent to diagnosis or treatment" requirement "is an objective consideration" (internal quotation marks and citations omitted)).
e The King court did not cite any authority reading an actual reliance requirement into the rule. In a footnote, however, the court cross-referenced the language in CRE 708 "of a type reasonably relied upon by experts in the particular field." King, 785 P.2d at 602 n. 6. This requirement is not satisfied with actual reliance by the testifying expert. See, e.g., TK-7 Corp. v. Estate of Barbouti, 993 F.2d 722, 733 (10th Cir.1993) (concluding under identical federal rule that expert's testimony was improper because based on information not relied on by experts in the field, citing Weinstein, Weinstein's Federal Evidence § 703[03] ("'The rule implicitly requires that the information be viewed as reliable by some independent, objective standard beyond the opinion of the individual witness.")).
©@Whether the physician acts on statements made to him does not affect the underlying theory-the patient, or the patient's representative, has a strong incentive to be truthful. Weinstein, Weinstein's Federal Evidence § 803.06[1].
@An actual reliance requirement would raise the question whether non-reliance was reasonable. Efforts by the hearsay proponent to show that it was not could produce confusion and delay. See CRE 408. Such efforts could also prejudice the physician, if-as here-his conduct was already at issue for an omission predating the hearsay statement.
According, I reject the fault rationale as a basis for excluding Ms. Hurd's statements from the exception in CRE 808(4).
F. Reasonably Pertinent to Diagnosis or Treatment
According to the majority, "Given plaintiff's vegetative state when Hurd disclosed the information about his alleged past cocaine use in the 19903, it is not reasonable to conclude that the information was necessary to diagnose or treat him in mid-December of 2004." However, the statements at issue involve plaintiff's alleged cocaine use on the eve of the needle biopsy.
The majority also says, "At that late stage, the information had no diagnostic value...." But the majority cites no authority, nor have I found any, treating the diagnostic process as so static. Cf. Brown v. Liberty Mut. Ins. Co., 774 A.2d 232, 242 n. 29 (Del.2001) (rejecting argument that statement should be excluded because it "did not actually change the course of treatment": "Rule 803(4) does not require that the medical record actually affect the course of treatment").
Where an initial diagnosis leaves significant questions unanswered, additional information may afford a basis for looking backwards. And even if the diagnostic process has concluded, the patient may seek a second opinion. See United States v. Rodriguez, Rivera, 63 M.J. 372, 381 (C.A.A.F.2006) (applying exception to statements made to physician providing second opinion on cause of injuries).
In either setting, the hearsay declarant has a motive to provide accurate information. Here, as indicated, when Ms. Hurd spoke to Dr. Kelly, no one knew of any medical reason why plaintiff could not have been resuscitated more quickly. Ms. Hurd's words indicate that she was offering information from which Dr. Kelly might provide an answer. She had no reason to provide inaccurate or self-serving information.
The majority also references "[the timing of Hurd's post-injury statements" and the lack of "information that is reasonably relied on by a physician." Both subjects have been addressed above.
*1002Finally, the majority states that Ms. Hurd's "motive for making the statements in mid-December of 2004 was not to promote [plaintiff's] diagnosis or treatment," citing her trial testimony. This case is anomalous, however, because at the second trial Ms. Hurd denied having made the statements attributed to her by Dr. Kelly. The jury was free to believe that she had not made them. But her denial was not before the trial court when the first judge held the statements admissible.
Rather, in divining Ms. Hurd's intent, that judge had to rely on the content of the statements and their context. See 4 Mueller & Kirkpatrick, § 8:75, at 664 (noting that, although determining motive under 808(4) is a matter of "the subjective understanding" of the declarant, in practice courts are "not in a good position to figure out what the speaker was actually thinking, so the standard means taking into account what a reasonable person in the position of the [declarant] would likely think"). And because she denied having made the statements, I would not reevaluate admissibility based on her testimony during the second trial.6 See Wheat v. United States, 486 U.S. 153, 162, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (observing that trial court must decide issues "not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context").
Her alleged statements, as recounted by Dr. Kelly, provided specific and recent information about plaintiff, in a medical setting, to one of his physicians.7 Neither the content nor the context of these statements is comparable to cases cited by the majority. See, e.g., Waddell, 351 N.C. at 418, 527 S.E.2d at 648 (child sexual assault victim made statements identifying her assailant in a "nonmedical environment" without any indication of a "medical treatment motivation on the part of the child.");8 United States v. Narciso, 446 F.Supp. 252, 289 (E.D.Mich.1977) ("it is not clear that Dr. Goodenday communicated to {the declarant] that she wanted to know who had administered the injection to find out what the medication was").
Nor would I fault the later trial judges, as the majority implies, for not revisiting the ruling. Because Ms. Hurd denied having made the statements at issue, her explanation of her intent applied only to the statements that she admitted having made. Thus, these judges, like the first judge, had no metric for gauging her intent behind the statements she denied other than their content and context. Neither had changed since the initial ruling.
In sum, I eannot say that the trial court abused its discretion in admitting the hearsay statements attributed to Ms. Hurd by Dr. Kelly. On the particular facts presented, the fault exception does not divest the trial court of its customary discretion in such evi-dentiary rulings. Rather, this determination must be made "in light of the facts of the particular case." Weinstein, Weinstein's Federal Evidence § 803.03[6].
The content and context of the statements that Dr. Kelly attributed to Ms. Hurd are consistent with her desire to provide information that could lead to discovery of the medical cause why plaintiff was not resuscitated more quickly. Although the permanence of plaintiffs brain injury when Ms. Hurd allegedly spoke would permit a different inference, because the record provides some support for the trial court's discretionary determination, it should stand. See, e.g., Bainbridge, Inc. v. Bd. of Cnty. Comm'rs, 53 P.3d 646, 649 (Colo. App.2001).
IIL. Prejudice and Probative Value
I also reject guardian's assertion that even if the hearsay statements satisfied a hearsay exception, they were highly prejudicial and *1003confusing to the jury, and therefore should have been excluded under CRE 408.
Under CRE 408, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues." However, the rule "strongly favors the admission of relevant evidence." People v. Greenlee, 200 P.3d 363, 867 (Colo.2009). "When reviewing a trial court's admission of evidence in light of the balancing test of CRE 403, an appellate court must assign to the evidence the maximum probative value and the minimum unfair prejudice which a reasonable fact finder might attribute thereto." People v. Welsh, 80 P.3d 296, 304 (Colo.2003). In a close case, "the balance should be struck in favor of admitting probative evidence." Vialpando v. People, 727 P.2d 1090, 1095-96 (Colo.1986).
Here, I agree with defendants that these statements provided a possible explanation for plaintiff's injury, which they supported with expert testimony that "cocaine abuse . caused [plaintiffs injurious] outcome." Thus, although admission of Ms. Hurd's statements was detrimental to guardian's case, in my view the trial court did not abuse its discretion in deciding that their probative value was not substantially outweighed by the danger of unfair prejudice or confusion of the issues. See, e.g., Phillips, 244 F.3d at 800 (affirming admission of prior drug use evidence over rule 403 objection and noting that "[wlhile plaintiffs would have preferred evidence of [patient's] drug use not be presented to the jury, simple prejudice alone is insufficient to warrant exclusion").
IIL Alternate Juror Issue
I address the alternate juror issue because it represents a separate ground for reversal and is a question of first impression in Colorado.
Guardian contends the judgment should be reversed because, by refusing to seat any alternates unless the parties agreed that they could deliberate, the trial court forced him to agree to have the two alternate jurors deliberate. I discern no abuse of the trial court's discretion over seating alternates, and therefore no coercion voiding guardian's agreement. Thus, deliberation by the alternates affords no ground for reversal.
In civil cases, trial before a six-member jury is a matter of right. C.R.C.P. 48. However, the trial court "may call and impanel alternate jurors." § 13-71-142, C.R.S. 2011; see C.R.C.P. 47(b). And, "[if the court and the parties agree, alternate jurors may deliberate and participate fully with the principal jurors in considering and returning a verdict." C.R.C.P. 47(b) (emphasis added).
Impaneling alternate jurors is a matter of grace subject to trial court discretion, not a privilege. See, e.g., Larry H. Miller Corp. Denver v. Urban Drainage & Flood Control Dist., 64 P.3d 941, 946 (Colo.App.2003) ("the General Assembly's use of the term 'may' is indicative of a discretionary power to choose among alternatives"); see also 12 Colo. Prac., Civil Procedure Forms & Commentary § 47.10 (2d ed.) ("it is within the sole province of the trial court to call alternate jurors"); State v. Miller, 259 Kan. 478, 912 P.2d 722, 727 (1996) ("The selection of additional or alternate jurors lies within the sound discretion of the trial court.").
Guardian cites no authority, nor am I aware of any in Colorado, holding that a trial court's decision whether to impanel alternate jurors can be challenged as an abuse of discretion. I need not decide whether this discretion is absolute because here the ree-ord affords a basis for the court's decision. See, e.g., Pham v. State Farm Mut. Auto. Ins. Co., 70 P.3d 567, 572 (Colo.App.2003) (in determining that there was no just reason for delay in entering final judgment on a claim, trial court did not abuse its discretion because it considered "the interests of judicial administration and the equities involved").
This case was tried twice. During the first trial, a mistrial occurred when the court excused several jurors and guardian refused to proceed with fewer than six jurors. On retrial before a different judge, the court told the parties in advance of jury selection, "I'm not going to sit alternate jurors if you guys aren't going to let them deliberate, not for four weeks. That's cruel ... that's four weeks of inconvenience, severe inconvenience...." Guardian's counsel replied: *1004"[Olur position [is] that under the rule we're not required to agree that alternates deliberate ... [however,] in light of what the court: has stated, that if we will not agree to that, there will be no alternate jurors, we feel we have no option but to agree with the Court's request in that regard...." In response to the court's question, counsel for Dr. Kelly responded, "We would agree to them deliberating," and Dr. Waintrub's counsel did not reply.
Thereafter, however, defendants filed a joint trial brief stating that "the Court's decision to allow the alternate jurors to deliberate may be deemed a reversible error if Plaintiff later argues that their [sic] agreement was not entirely voluntary." They asked the court to "reconsider its ruling" and asserted that, "if Plaintiff will not clearly and unconditionally agree to having, the alternates deliberate, Defendants also withdraw their previous preliminary agreement to allow alternates to deliberate."
At a hearing shortly after defendants filed this brief, the trial court explained,
[Mly practice is, and always has been, particularly for a trial of this length, if you're going to have alternate jurors, the alternates deserve to deliberate. And if the parties either don't want to agree to that, or cannot ... get their clients to agree to that ... that's their prerogative, but then you go back to six.
The. court confirmed guardian's position: "[I]f they [guardian and counsel] had their druthers, they'd not have the alternates deliberate. But they weighted [sic that against the idea of going with six ... and that cost-benefit analysis ... led to their decision to accept the alternates deliberating." Guardian's counsel replied, "I think that's a fair statement, Your Honor." The following day, the court reconfirmed that position with guardian's counsel.
Initially, I reject guardian's argument that because of assertions in defendants' trial brief, they are judicially estopped from arguing that the trial court's decision should be affirmed. Judicial estoppel is "an equitable doctrine by which courts require parties to maintain a consistency of positions in the proceedings, assuring promotion of truth and preventing the parties from deliberately shifting positions to suit the exigencies of the moment." Estate of Burford v. Burford, 935 P.2d 943, 947 (Colo.1997). But here, the position defendants maintain on appeal-all parties agreed with having the alternate jurors deliberate-is the same position that they first took below. To the extent that their trial brief deviated from this position, it was not "totally inconsistent" with their initial position, see id. at 948, as it merely suggested that the court's decision "may be deemed a reversible error." Id. (emphasis added). And the court maintained its ruling that any alternates would be allowed to deliberate. See Lyons Sav. & Loan Ass'n v. Dire's Lock & Key Co., 885 P.2d 345, 349 (Colo.App.1994) (noting requirement that "the party against whom estoppel is sought must have successfully asserted the contradictory position in the earlier proceeding").
Next, I conclude that the trial court did not abuse its discretion in seating alternates only if they could deliberate because it articulated reasons based on sound judicial administration that are supported by the record. See, e.g., Pham, 70 P.3d at 572. The court explained that because a four-week trial was difficult to schedule and posed "a tremendous hardship" for the jurors, it had to balance the parties' right to a fair trial "with the interests of the community" and the court's "administrative obligations ... to the public at large in managing [its] dockets." 9
Because guardian had no right to any alternates, the condition that alternates deliberate did not destroy the voluntariness of his agreement. Although acquiescence in the deliberation condition waived guardian's right to a jury of six, a party may be re*1005quired to waive a right to obtain a discretionary benefit. See, e.g., Shea v. Hanna Mining Co., 397 N.W.2d 362, 370 (Minn.Ct.App. 1986) ("In this case, waivers of jury trials on the fraud claims were meant to alleviate any delay or prejudice which might result from amendment of the pleadings at such a late stage in the proceedings. It was clearly within the discretion of the trial court to impose such conditions upon appellants' ability to assert these new claims."); cf. Gray v. State Farm Mut. Auto. Ins. Co., 826 P.2d 420, 421 (Colo.App.1992) (concluding that "the trial court did not abuse its discretion in conditioning its order granting plaintiff's request for a continuance upon her and her counsel's payment of those attorney fees incurred by defendant in preparing for the trial that was continued").
Therefore, because guardian could have chosen to forego impaneling any alternates, thereby preserving his right to a jury of six, his agreement that the alternates deliberate was not forced or illusory. See Smith v. Gulf Oil Co., 995 F.2d 638, 644-45 (6th Cir.1993) (concluding that, although the court "in rather harsh terms" asked the parties to stipulate to having four alternate jurors "audit[ ] the deliberations" or else "do away with consolidated trials for the remaining [plaintiffs,]" the agreement was not "obtained through coercion," and therefore "plaintiffs validly stipulated to [it]"). For this reason, the cases that guardian relies on, which hinge on the appellant not having agreed to allow the alternates to deliberate, are inapposite. See Kuykendall v. Southern Railway Co., 652 F.2d 391, 393 (4th Cir.1981); Cabral v. Sullivan, 961 F.2d 998, 1000 (1st Cir.1992); Jones v. Sisters of Providence in Washington, Inc., 140 Wash.2d 112, 994 P.2d 838, 840 (2000); see also Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 980 (Colo.1999) (appellant "was not offered a choice of accepting a continuance according to certain conditions").10
IV. Other Issues
Guardian's remaining contentions for reversal based on other evidentiary rulings are without merit.
Accordingly, I would affirm the judgment for defendants entered on the jury's verdict in their favor.
. See R. Mostellar, The Maturation and Disintegration of the Hearsay Exception for Statements for Medical Examination in Child Sexual Abuse Cases, 65 Law & Contemp. Probs. 47, 56 (Winter 2000) (''The drafters certainly did intend to change the exception from its orthodox common law formulation, making three major changes. First, the exception includes patients' statements of their medical histories, along with statements relating to then-existing conditions.").
. See, e.g., People v. Veren, 140 P.3d 131, 136 (Colo.App.2005) (looking at source materials underlying amendment to Fed.R.Evid. 701 to interpret identical amendment to CRE 701).
. See L. Perrin, Expert Witness Under Rules 703 and 803(4) of the Federal Rules of Evidence; Separating the Wheat from the Chaff, 72 Ind. LJ. 939, 947 (1997) ("[The rules' most dramatic *1000expansion is the inclusion of statements made for purposes of medical diagnosis alone.... [The rule suggests that treatment and diagnosis are independent bases for admission. A statement made solely for purposes of diagnosis, if reasonably pertinent for that purpose, should satisfy the rule, regardless of whether the patient was motivated to obtain treatment at the time.").
. I question the majority's extensive reliance on North Carolina precedent, in light of the Hinnant court's reaffirming "our adherence to the common law rationale underlying the rule," while acknowledging "the current trend of expanding the ... medical diagnosis exception." 523 $.E.2d at 669.
. See R. Mostellar, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C. L.Rev. 257, 267 (1989) (Trustworthiness exists separately from whether the statement is used by the auditor, who need not be an expert, and the jury should properly hear it because of that trustworthiness regardless of whether the auditor testifies and gives an opinion based on the statement.").
. This is especially so because guardian failed to request the third judge to reconsider the ruling, based on Ms. Hurd's trial testimony, before Pr. Kelly testified.
. On appeal, guardian argues that Dr. Kelly was no longer treating plaintiff. Because guardian failed to argue below that this fact was known to Ms. Hurd, I do not consider it as relevant to her intent. See, e.g., Am. Family Mut. Ins. Co. v. DeWitt, 216 P.3d 60, 65 (Colo.App.2008), aff'd, 218 P.3d 318 (Colo.2009).
. The Waddell court described these factors as "essentially identical to those in Hinnant." 351 N.C. at 418, 527 S.E.2d at 648.
. The court's decision is also consistent with the practice of federal courts, which require alternates to deliberate unless, like the principal jurors, they have been excused for good cause. Fed.R.Civ.P. 48(a) ("A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused [for good cause] under Rule 47(c)."); Fed. R.Civ.P. 48 Advisory Committee Notes, 1991 Amendment ('The use of jurors in excess of six increases the representativeness of the jury and harms no interest of a party.").
. Because I conclude that plaintiff voluntarily agreed to allow the alternate jurors to deliberate, I do not reach defendants' contention that any error was harmless.