concurring in part and dissenting in part.
I agree with the majority's comprehensive opinion to the extent it affirms the liability of Qwest, the finding of no liability on the part of Xeel, and the judgment for actual damages. I also agree that the trial court's order increasing exemplary damages should be vacated, but write separately to express specific concerns about the application of Colorado's exemplary damages statute. I write separately in dissent because I believe the jury's award of exemplary damages also must be vacated.
I. The Jury's Award of Exemplary Damages
I concur with the majority's conclusion and reasoning that Colorado's exemplary damages statute, section 13-21-102(1)(b), C.R.S. 2008, which permits a jury to award exemplary damages for conduct "which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others," is not unconstitutional, either on its face or as applied in this case, under Philip Morris USA v. Willams, 549 U.S. 346, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007).
As the majority correctly concludes, conduct that jeopardizes the rights and safety of others may be punished because it is reprehensible as explained in Philip Morris, provided that the award of exemplary damages is not based on evidence of actual harm to persons other than the plaintiff, or argument that the jury should punish the defendant for actual harm to persons other than the plaintiff. On remand, the Oregon Supreme Court summarized the holding of the Supreme Court in Philip Morris as follows:
[HJarm to nonparties (to the extent that it exists) may play a role in the punitive damages calculus in the sense that it is relevant to showing the degree of repre*331hensibility of a defendant's conduct. The Court distinguished, however, between legitimate use of evidence of such harm to establish reprehensibility and illegitimate use of that evidence to punish defendant for harm it caused to nonparties.
Williams v. Philip Morris Inc., 344 Or. 45, 176 P.3d 1255, 1259 (2008) (citation omitted).
In the instant case, because no evidence or argument of actual harm to others was presented to the jury, there is no reason to believe the statute was applied in an unconstitutional manner by permitting the jury to award damages for actual harm to others.
I also read the majority opinion as recognizing that to the extent a jury is permitted to consider potential harm to others, such harm may be considered only in the calculus of measuring reprehensibility. The majority's citation to Action Marine, Inc. v. Continental Carbon Inc., 481 F.3d 1302, 1320 (11th Cir.2007), supports this understanding, as the language quoted limits the consideration of "the risk of harm to others" to be "part of the reprehensibility analysis." I agree with this limitation.
The majority also suggests, without explicitly holding, that the constitutional due process mandate of Philip Morris is satisfied if the jury is given an instruction that it may consider the harm to others in determining reprehensibility (Me., the reasonable relationship between the defendant's punishable misconduct and the harm caused to the plaintiff), but it may not punish the defendant for the impact of its alleged misconduct on other persons. Such an instruction will prevent the jury from misunderstanding the distinct applications as it weighs evidence of "harm to others." The same suggestion was made, if not mandated, by the Supreme Court in Philip Morris, when it stated:
[Wle believe that where the risk of that misunderstanding is a significant one-because, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury-a court, upon request, must protect against that risk. Although the States have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases.
549 U.S. at 357, 127 S.Ct. 1057 (emphasis added).
No such instruction was given here, yet the record is clear that Qwest did not request such an instruction. In my view, in order to ensure that the Colorado exemplary damages law is applied consistently with the due process requirements set forth in Philip Morris, this court should explicitly hold that such an instruction shall be given, upon request, in any case where evidence of actual or potential harm to others is admitted for the jury's consideration in weighing the reprehensibility of a defendant's conduct.
Notwithstanding the constitutionality of Colorado's exemplary damages statute on its face and as applied here, and the failure of Qwest to request an instruction as discussed above, I believe the jury's award of exemplary damages must be vacated. Therefore, for the reasons set forth below, I dissent from the majority opinion to the extent it affirms the jury's award of exemplary damages.
An award for exemplary damages that is "grossly excessive" violates constitutional limits,. Philip Morris USA v. Williams, 549 U.S. at 353, 127 S.Ct. 1057. I believe the exemplary damages assessed by the jury here were "grossly excessive" because: (1) the compensatory damages included a punitive component, (2) Qwest's behavior was not sufficiently reprehensible to warrant the amount of exemplary damages awarded by the jury, and (8) evidence of post-accident conduct tainted the jury's award.
Although the United States Supreme Court's guidelines on when exemplary damages are constitutionally excessive could be clearer, we are able to discern certain principles, such as the effect of duplicative compensatory awards and the requirement of reprehensibility.
A. The Compensatory Damages
Compensatory damages for an injury may well be based on components that are duplicated in the exemplary damages award, particularly where the compensatory damages include amounts for emotional distress or *332humiliation. State Farm Mut. Auto. Ins. Co., 538 U.S. 408, 426, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003); see Restatement (See-ond) of Torts § 908 emt. c, at 466 (1977) ("liln many cases in which compensatory damages include an amount for emotional distress, such as humiliation or indignation aroused by the defendant's act, there is no clear line of demarcation between punishment and compensation and a verdict for a specified amount frequently includes elements of both").
As pertinent here, the jury awarded $9,917,600 in economic losses, $1,000,000 in noneconomic losses, $10,000,000 for physical impairment and disfigurement, and $18,000,000 in exemplary damages.
In closing, Blood's attorney presented his argument for economic losses. He stated that the total present value of Blood's loss of earning capacity, as presented by expert testimony, was $3,205,500. He reiterated the significant expenses required for Blood's physical care, and estimated the total economic loss for medical expenses at over $8 million. The jury awarded just under $10 million in economic losses.
Blood's attorney next argued losses for physical impairment and disfigurement. He couched the cost of physical impairment in terms of functional and physical capability, including loss of cognitive function from pain. He argued:
How do we value what was taken away? ... Take away what somebody loves to do, you find the job you love, you're very fortunate in life. Take it away and you've taken away more than money. Money is the easy thing, that's the fixed part. But to make up for it, that's the impairment part.
How do you compensate? How bad, how long, how much does it interfere?
Blood's attorney asked for between $10 and $15 million for physical impairment. He asked for a separate award for pain and suffering, but reminded the jury that any award for pain and suffering should not overlap anything included in physical impairment.
Based on the way physical impairment was argued, I would conclude at least some pain and suffering was included in the physical impairment award, and thus could be dupli-cative of the exemplary damages award.
The punitive aspect of the impairment award is demonstrated by the way Blood's attorney argued physical impairment:
Is it that if you give this large amount of money, somehow, the scales will be out of balance? Somehow, Andy Blood and Carrie will have gotten something they didn't deserve, they would have gotten a better bargain, they would have gotten a windfall?
What Qwest is really telling you is the price is too high, the cost is too great to ask us to pay that. There is a price for everything in life.
[[Image here]]
There is a price to be paid for not doing the inspection, maintenance, and repair program. And Andy Blood and Carrie Blood have paid that price. They pay today. They will pay it every week, every month, and every year for the next 50 years.
It is time for Qwest to pay the price, to bear the cost of the consequences of what they have done.
[[Image here]]
Qwest must be held 100 percent responsible because the only way Qwest will be responsible is if you make them fully responsible.
This argument essentially asks the jury to punish Qwest. Because the jury also awarded exemplary damages separately, I conclude the award is partially duplicative.
B. Reprehensibility
"Perhaps the most important indicium of the reasonableness of [an exemplary] damages award is the degree of reprehensibility of the defendant's conduct." BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); see Exxon Shipping Co. v. Baker, - U.S. --, -, 128 S.Ct. 2605, 2621, 171 L.Ed.2d 570 (2008)(exemplary damages apply to cases where defendant's conduct can be characterized as "outrageous," "enormous," "gross *333negligence," "willful, wanton, and reckless indifference for [the rights of others]," or behavior "even more deplorable").
Evidence of several factors tended to negate a conclusion that Qwest's conduct was reprehensible. Qwest employees testified that Qwest relied on pre-climb procedures (visual inspection, sounding, and prodding) by professional linemen to detect faulty poles, and that Blood did not fully follow these pre-climb procedures. This was the first serious utility pole injury in the forty-four-year term of the JUC, and so Qwest was not on notice of the inadequacy of its inspection program. Qwest was not legally required to inspect the poles, although it was contractually required to do so. There was no state penalty for noninspection.
In light of these facts, Qwest's actions appear more negligent than willful and wanton, which casts doubt on the constitutionality of the jury's exemplary damages award.
C. Post-Accident Conduct
I1 also conclude that under the circumstances of this case, the jury's award of exemplary damages likely included punishment for Qwest's post-accident conduct, contrary to Colorado law and the court's jury instructions. As stated in Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo.App.1998):
Our current statute, [section] 13-21-102, provides for the jury to assess punitive damages, but gives the trial court authority to increase the award. This creates the potential for evidentiary difficulties.
The function of the jury is distinct from that of the court. The purpose of the jury's award of punitive damages is to punish the wrongdoer for willful and wanton conduct. However, the conduct referred to is that causing the injuries. It is the quality of that tortious act, not the character of the wrongdoer, that justifies exemplary damages. As a result, acts of the wrongdoer occurring after the event creating lability ordinarily are not material to the jury's award of exemplary damages.
969 P.2d at 761 (citations omitted); see also Jones v. Cruzan, 33 P.3d 1262, 1264 (Colo.App.2001) (ordinarily, the acts of a wrongdoer occurring after the event creating liability are not material to the jury's assessment of punitive damages).
Because the trial court in this case admitted evidence of post-accident conduct, and because counsel argued such conduct to the jury in support of the exemplary damages award, Qwest moved for a mistrial. Rather than declare a mistrial, the court instructed the jury it could consider only Qwest's conduct prior to the date of the accident in relation to exemplary damages. Nonetheless, I believe the jury's award of exemplary damages impermissibly took imto account such post-accident conduct.
Evidence that Qwest had never instituted a pole inspection program necessarily affected both the jury's original exemplary damages award and the trial court's increase of the award. I assume without deciding that admitting the evidence was proper both because Qwest opened the door, and because the evidence showed Qwest's intent. See Antolovich v. Brown Group Retail, Inc., 183 P.3d 582, 598 (Colo.App.2007) (improperly admitted evidence that is cumulative to admissible evidence is harmless). However, I note that the "opening the door" argument goes only so far. In this case it may permit Xeel to level the playing field by bringing in the full story, but it does not necessarily «entitle the Bloods to argue the post-accident conduct in support of exemplary damages, as discussed below. See Itin v. Ungar, 17 P.3d 129, 132 n. 4 (Colo.2000) ("The concept of 'opening the door' represents an effort by courts to prevent one party from creating a misleading impression through the selective presentation of facts by allowing the other party to explain or contradict that impression through evidence that might otherwise be inadmissible.").
In any event, I disagree with the majority's conclusion that the post-accident evidence had no effect on the jury's exemplary damage award. It is true we presume that a jury follows the trial court's instructions. See People v. Harlan, 8 P.3d 448, 473 (Colo.2000). However, in some cases the evidence is so prejudicial that a curative instruction is insufficient. See People v. Goldsberry, 181 *334Colo. 406, 410, 509 P.2d 801, 803 (1978); People v. Anderson, 183 P.3d 649, 652 (Colo.App.2007); but see Roget v. Grand Pontiac, Inc., 5 P.3d 341, 347 (Colo.App.1999) (objectionable characterization of evidence during closing arguments does not necessarily constitute reversible error where jury is given curative instruction, and single reference was not material to any prevailing claims).
As the majority recognizes, the parties wrestled throughout the trial over the in limine order prohibiting reference to post-accident conduct. This wrestling began with the opening statement and continued during examination of witnesses. Some questions referenced the prohibited post-accident period, while others were temporally limited or ambiguous. Approximately six objections were sustained.
Ultimately, Qwest opened the door to evidence about post-accident conduct, and the trial court permitted a single question of witness Schmidt, as follows:
And Qwest has done that [charge Public Services the full amount of the rent on its poles] even though since June 29, 2004 Qwest has continued to engage in the practice of not inspecting, maintaining, and repairing its utility poles on a routine basis; isn't that true?
However, in questioning the next witness, an Xeel employee, Blood's attorney again asked:
Now, are you-were you aware before today that even now, three years after pole 5905 failed and caused injuries to Andrew Blood, Qwest still does not engage in any routine inspection, maintenance, and repair program of any of its poles in Colorado; were you aware of that?
The employee replied:
I'm not aware that Qwest is doing anything, no, with ground line inspection of poles.
During closing, Blood's attorney argued: Qwest as you heard yesterday, continues, even after this happened, continues to refuse to maintain, inspect, repair, replace its utility poles in Colorado.
He then repeated his question of the day before:
And Qwest has done that [continued to charge the full amount of rent] even though since June 29, 2004 Qwest has continued to engage in the practice of not inspecting, maintaining, and repairing its utility poles on a routine basis. ...
Later, Blood's attorney went on:
They admit, we don't inspect and maintain any of the 157,862 poles we have, and they still don't do it, even today.
[[Image here]]
This-mostly ironically, this argument about not liking what Public Service is doing comes from a company that even today, three years after Andy Blood is injured, still is not out there inspecting, maintaining, repairing on a regular basis a single pole.
When Blood's attorney began to talk about exemplary damages, he argued:
Nothing tells you more about the purposely-committed conduct than what has happened at Qwest since June 29th, 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, Qwest has not heard the break of the telephone pole when Andy was on it. Qwest has not heard the impact of Andy Blood and that telephone pole hitting the ground.
[[Image here]]
You and only you have the power to make Qwest listen.
Your verdict sends a message-all verdicts send a message. Your verdict sends a message that says you must pay for what you did and because you continue to do it.
[[Image here]]
[I]f sometime in the near future we were to see Mark Schmidt and we were to say to him, Mark, do you have an inspection and maintenance and repair program? Mark would look at us and say, Yep, I've *335got the budget and I've got the instruction. That's the message your verdict can send.
(Emphasis added.)
After Blood's attorney repeatedly emphasized the post-accident conduct, the trial court, although acknowledging that such argument was not appropriate to be considered for punitive damages, denied Qwest's motion for a mistrial. Instead the court orally instructed the jury, after it had been provided with copies of the written instructions, that only conduct prior to the date of the accident could be considered for exemplary damages.
However, because the entire argument for exemplary damages centered on the post-accident conduct, and because the post-accident conduct was a theme throughout the trial, both before and after the door was opened, I conclude the exemplary damages award necessarily reflected post-accident conduct.
The trial court's own order increasing the damages supports this conclusion. Blood's post-trial motion for increased exemplary damages stressed Qwest's continuing post-accident behavior, and the trial court increased the damages for the continuing failure to inspect, maintain, and repair its poles during the pendency of the case pursuant to section 18-21-102@8)(a), C.R.S.2008. Because the trial court did not hold a hearing, the only evidence before it was the same evidence presented to the jury. If that evidence was sufficient for the trial court to increase the damages, it is difficult to conceive that the jury could have ignored it completely, especially when it was the entire basis for exemplary damages as argued by Blood's attorney.
Accordingly, I believe the jury, in part, punished Qwest's post-accident conduct by awarding $18 million in exemplary damages, and such award is contrary to the law in Colorado and the jury instructions.
II. The Court's Increase of Exemplary Damages
I also concur with the majority's conclusion that Colorado's exemplary damages statute, section 13-21-102(8)(a), is not unconstitutional on its face under Philip Morris USA. The statute permits the trial court to increase the jury's award of exemplary damages to a sum not to exceed three times the amount of actual damages, when the defendant has continued the behavior which is the subject of the claim against the defendant in a willful and wanton manner, either against the plaintiff or another person or persons, during the pendency of the case.
Of course, the Philip Morris opinion does not address a statutory scheme such as Colorado's which permits a court to increase a jury's exemplary damages award. I believe the majority, while not so stating explicitly, acknowledges that the constitutional limitations of Philip Morris apply equally to a court-awarded increase in exemplary damages.
I reach the conclusion that Colorado's statute does not run afoul of Philip Morris because the conduct which permits the court to increase the exemplary damages, referred to generically as "post-accident conduct" although more correctly labeled as "post-filing conduct," may be found to be reprehensible, within the Philip Morris definition of that term, when it occurs under cireumstances that indicate a willful and wanton disregard by the defendant of a hazard that has now been made known to it. However, for the statute to be constitutional under Philip Morris, I believe we must interpret this statute to allow the court's consideration of actual or potential harm to others only as a reprehensgibility factor in connection with the increased award.
As indicated above, I also construe a proper application of the holding in Philip Morris to require that where the reprehensible conduct which supports the jury's award of exemplary damages is actual or potential harm to others, that conduct cannot also be the reprehensible conduct that provides the basis for an increase in exemplary damages by the court. Rather, separate reprehensible conduct must be found by the court to support the increase.
The Colorado exemplary damages statute, when properly applied, satisfies this requirement of Philip Morris. The jury's award of exemplary damages must be based solely on reprehensible conduct that occurs before the *336accident; the court's increase of an exemplary award may be based only on reprehensible conduct that follows the filing of the case.
I believe Colorado law mandates such a separation of the exemplary damages award. Under the rationale of Bennett v. Greeley Gas Co., it must be clear that a jury's award of exemplary damages is based only on pre-accident willful and wanton conduct, and a court's increase is based solely on post-filing conduct. A trial court may rely only on behavior during the pendency of the case when ordering treble damages. Eurpac Service Inc. v. Republic Acceptance Corp., 37 P.3d 447, 453 (Colo.App.2000) (citing Bennett). Since the statute has been so interpreted, I agree with the majority that the statute is not facially unconstitutional.
Based on these constitutional and statutory limitations on the court's authority to increase an exemplary damages award, I agree with the majority that such an award cannot be affirmed on de novo review in the absence of meaningful findings. We cannot determine if the statute was constitutionally applied in this case. The court's order of September 4, 2007, increasing the award of exemplary damages from the $18 million awarded by the jury to "three times the actual damages awarded by the jury," or approximately $62 million, contains only the barest explanation of the reasons for the increase. The order primarily paraphrases the statute and states that Qwest's failure to inspect, maintain, and repair its poles during the pendency of the litigation posed a substantial risk of harm to the plaintiffs, or another person or persons.
The trial court did not find that Qwest's continuing conduct was willful and wanton, or that it was different from the pre-filing conduct on which the jury presumably awarded exemplary damages. Nor did the court indicate whether the increased award was based on actual or potential harm to others, or whether such harm to others, arising from post-filing conduct, was considered as a matter of reprehensibility only, and not to punish.
Because the order does not indicate that the conduct was willful and wanton, give any reasons why the court would find the conduct to be so, consider or address any evidence submitted by Qwest in explanation of why it did not inspect, maintain, or repair the poles during the pendency of the litigation, or otherwise provide meaningful findings to justify increasing the jury's award, I agree with the majority that the court's order increasing the exemplary damages in this case must be vacated and the matter remanded to the court for a hearing and findings.