dissenting.
I respectfully dissent.
In my view, the trial court did not abuse its substantial discretion in determining that evidence of Sears’ promise to pay Pennington’s medical bills and subsequent refusal to do so was relevant and material to the disputed issue of damages in this case. CRE 401; People v. Hernandez, 687 P.2d 502 (Colo.App.1984).
CRE 409 was adopted verbatim from the Federal Rules of Evidence. See F.Ed.R.E. 409. The function of the rule is a salutary one:
Rule 409 is the product of a desire to encourage humanitarianism, which would be discouraged if the humanitarian act of paying expenses were penalized by making it evidence against the payor. In addition, the inference that the conduct means anything other than humanitarianism is unreliable.
P. Rothestein, Federal Rules of Evidence at p. 126.9 (1992); see also J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 409[01] (1986).
Here, there was no violation of either the language or the spirit of the rule in this case because, with one exception, Pennington testified that Sears recanted on the adjustor’s promise to pay her medical bills and thus any humanitarian considerations are not involved. Further, the evidence was not admitted on the issue of Sears’ liability.
Turning then to the issue of relevancy, it was undisputed that Pennington suffered a massive tear to the rotator cuff of her left shoulder as a result of the fall. However, while Sears withdrew its failure to mitigate affirmative defense, it persisted in its denial of Pennington’s claim as to the “nature and extent ” of her injuries and the jury was so instructed.
*156The opinion of Pennington’s surgeon was uncontroverted that had plaintiff obtained the required surgery soon after receiving her injury, the nature and extent of her permanent impairment and pain would have been substantially diminished. The reasons for the failure to obtain that surgery then became highly relevant and material to explain why she ended up with both the degree of permanent impairment that she did as well as the gravity of the pain, suffering, and mental anguish that she claimed.
As a result, in my view, the evidence of Sears’ offer and refusal to honor that offer, evidence that Pennington had no private insurance or funds from which to pay for treatment, and the fact that federal medicaid benefits were unavailable to her were all relevant and material to establish the nature and extent of her injuries. See CRE 402.
The jury was instructed on two occasions in close sequence that this evidence was being admitted for the limited purpose of plaintiffs damage claim and not as to Sears’ liability. There is a presumption that the jury understood and applied that instruction and I find no basis in this record to conclude otherwise. See Prutch v. Ford Motor Co., 618 P.2d 657 (Colo.1980).
Specifically, and contrary to Sears’ contention, there is ample evidence in the record to support the jury’s damage award. First, the jury awarded in excess of $17,000 for medical expenses incurred and unpaid as well as future medical expenses for physical therapy. The parties stipulated to the unpaid medical bills in excess of $15,000 and the cost of future physical therapy treatments was projected both as to cost and duration thus rendering this part of the award subject to mathematical calculation.
The jury also awarded in excess of $41,000 for loss of enjoyment of life, inconvenience, pain and suffering, and mental anguish. This award is also amply supported in the record. Pennington can no longer undertake the numerous household activities for which she formerly assumed responsibility, she can no longer participate in physical activities with her numerous grandchildren, she can no longer participate as an instructor in her church kindergarten, her ability to drive an automobile is limited, and she can no longer enjoy varied physical and recreation activities such as bowling and camping in which she formerly participated.
The jury finally awarded in excess of $41,-000 for plaintiffs permanent impairment and disfigurement. The surgeons’ testimony is uncontroverted that her injury was permanent because, due to the interval between the date of the accident and surgery, no repair could be effected to two of the tendons in her shoulder.
As a result, plaintiff can lift very little weight with her left arm, she cannot undertake repetitive motion, and she will always be subjected to chronic pain. She has a life expectancy of in excess of 18 years. And, she testified that she requires six Tylenol pain capsules each day to mitigate her chronic pain and she is unable to sleep more than two to three hours at a time before she is awakened by that pain.
Conversely, to the extent that Sears asserts the evidence was prejudicial under CRE 403, I agree. Most relevant and material evidence is. See People v. District Court, 785 P.2d 141 (Colo.1989). But, I disagree with the conclusion that the prejudice was unfair.
This is because the focus of the evidence is upon the refusal to abide by a promise which in effect aggravated the injury — not the making of the promise itself. As noted by our supreme court in People v. District Court, supra:
The thrust of Rule 403 favors admissibility.... Rule 403 requires that the probative value of evidence in question be ‘substantially outweighed’ by the danger of unfair prejudice.... ‘This requirement is meant to make clear that the need for the exclusion is a drastic remedy and less restrictive measures, such as cautionary instructions to the jury, may suffice to reduce the danger of prejudice to an acceptable level.’ (citation omitted)
785 P.2d at 146.
Here, the requisite cautionary instruction was given.
*157Finally, to the extent Sears claims that the evidence was unduly emphasized, I note the lack of objections in the record based upon any cumulative theory, and the extended cross-examination of Pennington by trial counsel on two separate occasions regarding this topic.
Under these circumstances and because I do not view Sears’ other contentions for reversal as having merit, I would affirm the judgment.