Colorado’s second-highest court determined last week that a Weld County judge should not have instructed jurors to consider a car crash victim’s subsequent pregnancies and the disruption they had to her treatment when deciding how much money she should receive for her injuries.

A three-judge panel for the Court of Appeals concluded the evidence did not show Ashley Bullington voluntarily became pregnant after her accident, so there was no need to consider whether Bullington’s pregnancies amounted to her own failure to mitigate her injuries. Further, it was not reasonable to expect Bullington to terminate her pregnancies in order to receive certain treatment following the car crash.

Judge David H. Yun, writing in the May 23 opinion, declined to answer the broader question of whether a plaintiff in Bullington’s shoes should refrain from getting pregnant altogether in order to pursue a recommended course of treatment.

However, he cautioned, “We find the idea of being required, even temporarily, to give up the fundamental right to have children in order to mitigate damages dubious.”

Bullington’s lawsuit against Courtney Barela and the role her unrelated pregnancies played at trial raised the delicate legal question of what obligation a plaintiff has in a personal injury case to avoid getting pregnant, if the pregnancy will interfere with treatment for her injuries.

In December 2016, Barela rear-ended Bullington at a red light in Greeley. Three years later, Bullington sued for negligence.

In the intervening time, Bullington underwent treatment for her injuries. She could not receive certain injections to treat her headaches, however, because at the time of the accident she was pregnant. A doctor would not provide the injections while she was pregnant or breastfeeding.

After the child’s birth and the conclusion of breastfeeding, Bullington’s doctor cleared her for the injections. But she became pregnant again, which delayed the treatment. The same pattern played out in 2021, when Bullington became pregnant with her sixth child.

In Colorado, defendants may raise the argument that plaintiffs failed to take reasonable measures to mitigate their damages, which could include not seeking or not following medical advice. Barela proposed instructing jurors to consider Bullington’s failure to reasonably pursue the recommended medical treatment.

“At the risk of being politically incorrect,” District Court Judge Shannon Lyons said, agreeing with Barela, “the fact that she was both pregnant and nursing delayed her treatment in certain areas. … That was a voluntary decision on her part.”

Although Bullington testified at trial that she and her husband thought they were “definitely preventing” additional pregnancies, the defense maintained Bullington’s “choice to have additional children” affected her treatment.

Jurors awarded Bullington $23,638 in damages, without indicating how they evaluated Bullington’s potential failure to mitigate by being pregnant. Bullington moved for a new trial, but Lyons reasoned the jury’s verdict was fair in relation to the $6.5 million Bullington originally asked for.

“Plaintiff was healthy enough to become pregnant again twice and to deliver two healthy children. A reasonable juror could have concluded those facts are at odds with a person who is injured to the point of requiring a multi-million-dollar judgment,” he wrote.

Bullington challenged the failure-to-mitigate instruction at the Court of Appeals. During oral arguments in April, the lawyer for Barela contended it was reasonable to require Bullington to follow the advice of her doctor to treat her car crash injuries.

“But the instructions of the doctor was, ‘Get this treatment if you’re not pregnant or breastfeeding,'” observed Judge Craig R. Welling. “What was unreasonable in what the plaintiff did here?”

“They chose to get pregnant,” responded attorney Eric D. Hevenor. “Contraception is basically more than 90% effective. So, the idea that you would accidentally get pregnant twice in a short period of time is certainly not credible.”

The panel ultimately concluded the jury instruction was erroneous because there was no evidence Bullington made a “voluntary decision” to get pregnant, as Lyons found. Moreover, the Court of Appeals saw nothing to suggest Bullington was required to end her pregnancy or forgo breastfeeding to mitigate her car crash damages.

It ordered a new trial solely for the damages owed to Bullington. Yun noted the panel was not deciding whether it would have been reasonable for Bullington to avoid getting pregnant altogether so she could receive the recommended injections.

“But our decision to resolve the issue on this narrow basis should not be viewed as an invitation to the defendant to introduce evidence regarding Bullington’s reproductive choices at retrial,” he warned.

The case is Bullington v. Barela.