Background
In May 2021, Aurora Police Officer Gabriel Nestor stopped Preston Nunn, a young Black man, for failing to yield to an emergency vehicle. When Nunn reached toward his waistband to retrieve his driver’s license, Nestor drew his firearm, demanded Nunn place his hands on his head, and called for backup. As additional officers arrived, Officer Cody Goetz tackled Nunn to the ground, and Nestor deployed his Taser on Nunn twice while officers attempted to restrain him. Nunn was arrested and charged with several crimes, though all charges were ultimately dismissed.
Nunn sued Nestor asserting claims of excessive force (both for pointing a gun at him and for tasing him), unreasonable seizure, failure to intervene in Goetz’s use of force, and an equal protection violation based on racial discrimination. After a four-day trial, the jury found Nestor liable only for excessive force in connection with pointing his firearm at Nunn, and rejected all remaining claims including the tasing-based excessive force claim and unreasonable seizure.
Nestor appealed on three grounds: (1) the verdict was irreconcilably inconsistent because a finding of excessive force necessarily entails a finding of unlawful seizure; (2) the jury instructions on unreasonable seizure were legally defective; and (3) the trial court abused its discretion by striking his nonretained rebuttal expert witness on the final day of trial.
The Court’s Holding
The court affirmed on all three grounds. On the verdict-inconsistency issue, the court held that the verdict form—despite being labeled a “Special Verdict Form”—constituted a general verdict accompanied by interrogatories under C.R.C.P. 49(b), not a special verdict under C.R.C.P. 49(a). The court expanded on Morales v. Golston, 141 P.3d 901 (Colo. App. 2005), explaining that the determinative question is whether the jury was asked to announce the “ultimate legal result of each claim.” Because the form asked the jury directly whether Nestor deprived Nunn of his constitutional rights—leaving nothing for the judge to do but enter judgment—it was a general verdict. The label assigned to the form is not controlling. Since Nestor failed to object to any inconsistency before the jury was discharged, his challenge was waived.
On the jury instruction issue, the court assumed without deciding that the unreasonable seizure instructions were erroneous, but found any error harmless. The jury had already found in Nestor’s favor on that claim, and Nestor’s own argument—that a proper instruction would have required a seizure finding whenever excessive force was found—actually implied a properly instructed jury would have returned a worse outcome for him by imposing liability on both claims. On the expert exclusion issue, the court held that even if the trial court erred by failing to conduct an explicit harm-and-proportionality analysis under C.R.C.P. 37(c)(1), any error was harmless because Nestor bore the burden of demonstrating prejudice and failed to explain either at trial or on appeal how the excluded testimony would have substantially influenced the outcome.
Key Takeaways
- The label “special verdict form” does not control whether a verdict is a special verdict under C.R.C.P. 49(a) or a general verdict under C.R.C.P. 49(b); courts look to whether the jury was asked to declare the ultimate legal result of each claim.
- A party who fails to object to an alleged inconsistency in a general verdict before the jury is discharged waives that challenge for post-trial motions and appeal; the waiver rule does not apply to true special verdicts under Rule 49(a).
- Instructional error in favor of the losing party on a claim is harmless—and Nestor’s own theory of legal interdependence undercut his prejudice argument by suggesting a correct instruction would have increased his liability, not reduced it.
- Under C.R.C.P. 37(c)(1), the burden falls on the nondisclosing party to demonstrate that exclusion of improperly disclosed expert testimony is unwarranted; failure to make that showing at trial or on appeal forfeits the issue.
Why It Matters
This decision provides significant practical guidance for Colorado civil litigators on a question that arises regularly but was previously underanalyzed: how to distinguish a special verdict from a general verdict with interrogatories. By synthesizing federal circuit authority and expanding on Morales, the court supplies a workable test—whether the jury announced the ultimate legal result of each claim—and makes clear that the form’s title is irrelevant. Defense and plaintiff counsel alike must now scrutinize verdict forms before trial and ensure they raise inconsistency objections immediately upon the jury’s return if the form turns out to be a general verdict.
The decision also reinforces a trap that defendants in civil rights cases must avoid: arguing on appeal that a proper instruction would have produced an outcome no better—or even worse—than the one challenged. The court’s observation that Nestor’s legal theory implied additional liability, rather than less, effectively foreclosed his harmless-error argument on the instruction issue and illustrates how a damages-limiting trial strategy can backfire as an appellate argument.