Darin L. Schanker

The nurses and doctors at Banner Health’s North Colorado Medical Center in Greeley wrote down what they saw during the first two days of C.G.’s life. She was born healthy in November 2017, with Apgar scores of 8 and 10. Over the next two days the chart recorded a newborn feeding less, growing fussier and more irritable, and showing signs of respiratory distress. Twice her mother, Erin Gresser, ran to the nurses’ station because the baby had stopped breathing. Those were signs of sepsis, and a standing order in C.G.’s records directed the nurse to notify a doctor immediately of any one of them so that a doctor could start antibiotics. The Gressers took their worries to the nurse overseeing the baby’s care and were brushed off. The nurse on duty did not notify a doctor.

“In many medical malpractice cases, the plaintiff runs from the records; here, though, the opposite happened,” Darin L. Schanker said in 2026, looking back on Gresser v. Banner Health. He led the Gressers’ case, which J. Howard Thigpen of his Denver firm, Bachus & Schanker, had first reviewed and brought to him, and he and Zachary Wool of Barrios Kingsdorf & Casteix in New Orleans were the family’s lead trial lawyers in Weld County District Court. The hospital’s own entries became the proof that the signs of sepsis were documented hours before anyone started antibiotics.

After a three-week trial, a six-person jury found Banner Health negligent and awarded C.G.’s parents, Chance and Erin Gresser, $27,647,274.23 in economic damages, all but $1.2 million of it for her medical care. Colorado’s Health Care Availability Act generally limits malpractice damages to $1 million unless a court finds good cause to go higher and finds that applying the limit would be unfair. District Judge Todd Taylor made both findings and entered judgment for the full verdict plus interest: $39,845,196.83. Banner Health took the case through two appellate courts, arguing that the judge who lifts the cap, rather than the jury, should decide how much more to award. The Colorado Court of Appeals affirmed in November 2023. On October 20, 2025, a unanimous Colorado Supreme Court affirmed again and held that once the cap is lifted, the jury’s verdict sets the amount, subject only to the court’s ordinary power to review a verdict for excessiveness and for the sufficiency of the evidence.

Six O’Clock and Eleven O’Clock

Late on C.G.’s second day, the next nurse to come on shift checked on her, immediately recognized extreme distress, and called a doctor. Only then was C.G. moved to the neonatal intensive care unit, where she was admitted after 11 p.m. and given antibiotics for a possible infection. Lab results the next morning confirmed E. coli. C.G. developed sepsis and meningitis and was flown by Flight for Life to Children’s Hospital in Denver. She stayed in intensive care for four months before she was discharged. She survived with what the trial court found were severe, permanent neurological injuries, including cerebral palsy and developmental delays; in their suit the Gressers listed among her injuries a seizure disorder, communication delays, physical impairment, and intermediate cerebral palsy. By the time the case reached the Colorado Supreme Court, no one disputed that she will need medical care for the rest of her life or that her life expectancy is significantly shorter because of her injuries.

The Gressers’ claim was that Banner Health’s nurses had breached their duty of care by “failing to timely notify C.G.’s physicians that C.G. was exhibiting signs of sepsis,” and that the delay caused her injuries. Causation was a question of timing. The Gressers’ causation expert, Dr. Ramzy Rimawi, was board certified in internal medicine, infectious diseases, and critical care medicine. He had worked at Emory University Hospital, helped develop sepsis guidelines, and taught physicians, pediatricians among them, how to recognize sepsis in newborns. E. coli doubles at a stable, calculable rate. “By doing the math on how much E. coli was present in the samples the hospital took,” Schanker said, “he was able to determine that, earlier in the day when the baby was exhibiting these signs of sepsis and the nurse never told a doctor, antibiotics would have arrested the infection before she got meningitis that led to profound brain damage and cerebral palsy.”

By 8:30 p.m. on her second day, when she was tachycardic and grunting, C.G. was “very far along” the stages of sepsis, Dr. Rimawi testified. He told the jury that antibiotics started at 6 p.m. that day would have prevented C.G.’s permanent neurological injuries. Starting them when she reached the NICU after 11 p.m. was “too late,” he testified, because certain of her organs, her brain among them, were already dying.

Banner Health challenged his qualifications, calling him “an adult infectious disease physician.” Dr. Rimawi lacked specific experience on a postpartum unit, and at the time of trial he was not credentialed to treat patients under eighteen. The trial court limited him to causation and kept him away from the nursing standard of care. The Court of Appeals upheld that ruling. The primary consideration, the division held, was the witness’s actual “knowledge, skill, experience, training or education,” rather than his particular title. Banner Health had pointed to no material difference between the way pediatric physicians and physicians who mainly treat adults are trained to suspect, manage, and treat sepsis, and the gaps in Dr. Rimawi’s background went to the weight the jury gave his opinion.

Videos for Banner’s Neurologist

The Gressers sued in Weld County District Court in November 2019, and the case went to trial in April 2022. Schanker, Thigpen, and several other lawyers from the firm lived out of a Greeley hotel for the three weeks of trial. “Anytime you go to trial with medical malpractice cases, it’s difficult to communicate to a jury,” Thigpen said. The family’s lawyers had twenty minutes for their opening statement, and Schanker said the firm used visual aids to tell the jurors the story in that time. “We are in the 21st century. Jurors, just like regular folks, are used to the visual,” he said. “We needed to capture the jury’s attention and explain to them what happened. And the visual presentation was critical to that.” Among the visual aids was a day-in-the-life video of C.G.

Schanker has described three defenses. Banner Health argued first that its nurses had met the standard of care; then that, even if they had not, the delay caused no avoidable harm; and finally that if its negligence had caused C.G.’s injuries, those injuries were so catastrophic that she would not live long and would not need much money for her care. Central to those defenses was Banner’s pediatric neurologist, who, in Schanker’s account, told the jury that C.G. was “effectively a vegetable.”

The Gressers’ lawyers answered him on cross-examination with video. The neurologist watched C.G. moving her hands to grab rings in a pool, riding a horse, and taking part in music therapy. Asked whether she could have hopes and dreams, he scoffed. He was then shown a video of C.G. watching Frozen, in which she danced along with the music and threw her arms up in the air, mimicking Princess Elsa. “There was not a dry eye in the jury box watching the joy on our client’s face, which completely undermined the neurologist’s testimony,” Schanker said.

Months after the verdict, in an order on costs dated December 2, 2022, Judge Taylor called the plaintiffs’ $16,308 for graphic design and $23,869 for a videographer “essential services that aided in explaining complex medical concepts and educating jurors about the issues in dispute.”

Fifty-Eight Years

C.G.’s life expectancy would set how many years of care the jury was asked to fund. The Gressers engaged Dr. John Lawrence Merritt to testify on how long she would live. At his deposition, Banner Health’s counsel asked whether he knew of literature reflecting that “80 percent of cerebral palsy patients have a life expectancy of less than 58 years.” At trial he said he was “aware of that statement in the literature” and did not agree with it. In his view, with “continued optimal care,” C.G. could have “a full life expectancy,” and he described her “remarkable progress on feeding and ambulation.”

Banner Health tried to shorten that period. On the sixth day of trial, its economist, Dr. Eric Joshua Drabkin, sought to offer a new present-value calculation based on a 58-year life expectancy, a figure taken from the published research on life expectancy in cerebral palsy that Banner had known about since Dr. Merritt’s deposition. Banner had never disclosed the calculation, and the trial court excluded it. The Court of Appeals agreed that Banner could have disclosed the calculation before trial, that it surprised the Gressers, and that no one had asked for a continuance that might have cured the surprise.

The trial court let jurors put their own questions to the witnesses after the lawyers finished, and they asked dozens of detailed ones. Answering jurors’ questions, Dr. Merritt testified that C.G.’s life expectancy “would be reduced by fifteen percent if she were unable to self-feed” and “by another fifteen percent if her ability to self-ambulate did not improve.” On recross he agreed that the two reductions together came to slightly below fifty-eight years, though he never adopted that figure as his own opinion.

The family’s request to the jury, Schanker said, was to provide for C.G.’s past and future medical costs; ninety percent of what they asked for was medical care. “From the beginning, this case for our family was ensuring that their beautiful child was taken care of when they were no longer around,” he said.

The verdict came in three parts: $2,517,274.23 for past medical and other health care expenses; $23,930,000 for future medical and other health care expenses from 2022 through 2075, the year C.G. turns fifty-eight; and $1,200,000 for lost wages from 2038 through 2070. The Gressers’ life care planner had deliberately left out of C.G.’s plan anything she would have needed regardless of her injuries.

One Million Dollars or the Verdict

The verdict then met section 13-64-302(1)(b) of the Colorado Revised Statutes. The Health Care Availability Act presumptively limits malpractice damages to $1 million and allows one exception: “if, upon good cause shown, the court determines that the present value of past and future economic damages would exceed such limitation and that the application of such limitation would be unfair, the court may award in excess of the limitation the present value of additional past and future economic damages only.” The Gressers moved to exceed the cap and enter the full verdict. The same day, Banner Health moved to reduce the award to $1 million.

Judge Taylor found good cause on the totality of the circumstances. C.G.’s neurological injuries were severe and permanent, a number of them injuries she will never overcome, and she would need intensive and expensive therapy throughout her life. The Gressers had presented “substantial, and largely unchallenged, evidence” of what that care would cost, and $1 million would not cover even her past medical expenses. Applying the cap would also be unfair to her mother, who would go on caring for C.G. as an around-the-clock nurse’s aide and could not work outside the home. The judge found that “there is no doubt that [C.G.] will never earn wages,” that the lost-wages award fell within the range of Banner Health’s own expert testimony, and that it did not duplicate the medical award.

Judge Taylor read the statute as giving the court no authority to substitute its own figure for a jury award the record supported, and described the choice as “a binary decision”: enter judgment for $1 million or “enter a judgment in the amount of damages awarded by the jury.” Banner Health had not shown that the evidence failed to support the award or that passion or prejudice moved the jury. “To the contrary,” the court found, “the jury’s award of damages in this case reflects a careful and close examination and analysis of all the conflicting evidence related to the amount, duration, and severity of [C.G.’s] injuries and losses.” The award was not grossly and manifestly excessive, and the court declined “to reweigh the evidence and adjust the damages awarded by the jury based on a reassessment of the evidence admitted at trial.” It entered judgment for the full verdict plus pre- and post-filing interest, $39,845,196.83.

Chargemaster Bills and a Medicaid Lien

Banner Health appealed, represented by Elizabeth Moran of Hall Booth Smith and Richard J. Montes of Mauro Lilling Naparty. Judge Lipinsky wrote for a Court of Appeals division, with Judges Welling and Gomez concurring, in an opinion announced November 16, 2023. On the cap, the division held that a trial court that has made the findings required to exceed $1 million keeps its authority to reduce the jury’s award by remittitur if the award is grossly and manifestly excessive. The statute says nothing about how to calculate damages above the limit, so existing remittitur law applies, and the verdict stays presumptively valid unless it is completely without support in the record or grossly and manifestly excessive. Judge Taylor had decided good cause first and then reviewed the size of the award separately; having found substantial evidence for the verdict, he properly declined to reduce it.

Banner Health also attacked the $2,517,274.23 in past medical expenses. That figure, the hospital argued, reflected “a fictitious charged amount as opposed to the amount [the Gressers] actually paid,” and the Gressers should have been required to disclose liens and third-party subrogation claims under section 13-64-402. The division disagreed. The state had furnished Medicaid assistance for C.G.’s care, and the Colorado Department of Health Care Policy and Financing holds an automatic statutory lien for the medical assistance it furnishes. To show the charges were fictitious, Banner Health relied on a single Children’s Hospital document, which read: “This is not a bill. This is an itemization of hospital services.” The division found that “insufficient to overturn, on sufficiency of the evidence grounds, the court’s finding,” and noted that “Banner Health does not allege that the Gressers never received those services.” The trial court had found the past-expense award “amply supported by the evidence admitted at trial,” and Banner Health, which bore the burden of designating the contrary evidence on appeal, had not done so.

The hospital argued too that the court should have reduced future medical expenses because a special-needs trust would preserve C.G.’s eligibility for Medicaid. The jury had awarded nothing for setting up such a trust, a trust would affect only future medical costs, and Colorado law treats Medicaid benefits as an exception to the collateral-source statute that “ought not inure to the benefit of the tortfeasor.” The division further held that prefiling interest on past and future economic damages is part of those damages and may be awarded above the $1 million limit when the statute’s other requirements are met, and that a court deciding whether to lift the cap may consider the lost earnings of a permanently disabled child. It affirmed the judgment.

Schanker and Wool issued a statement to news outlets that asked about the ruling. “Tragically, C.G. had only one healthy day in their care,” it read. The jury’s verdict, the trial court’s rulings, and the appellate opinion, they wrote, brought C.G. “one step closer to having the significant, around-the-clock care that she needs to thrive for the rest of her life.”

Who Sets the Amount Once the Cap Is Lifted

Banner Health petitioned the Colorado Supreme Court, which agreed to decide whether the Court of Appeals had erred in concluding that a trial court that finds grounds to exceed the cap is limited to reviewing damages under a remittitur standard. Schanker and Thigpen represented the Gressers with Wool, by then of Barrios Wool LLC. The Colorado Medical Society and the American Medical Association appeared together as amici; Coloradans Protecting Patient Access and the Colorado Defense Lawyers’ Association also appeared as amici, as did the American Association for Justice and the Colorado Trial Lawyers Association.

Banner Health built its argument on the statute’s words: a court “may award in excess of the limitation” the present value of “additional” damages. On that reading, the $1 million cap replaces the jury’s award. Coloradans Protecting Patient Access told the court that once the cap is imposed, the jury award ceases to exist, leaving nothing for a judge to remit. A court that decides to go higher may award additional damages, but need not, and only in an amount the plaintiff justifies under the good-cause and fairness standards. Any other reading, Banner argued, would make the good-cause language meaningless, because courts can always review a jury’s award for the sufficiency of the evidence. Banner quoted an earlier Colorado decision for the cap’s purpose: “to limit damages regardless of whether the jury found them to be appropriate.” Schanker put the hospital’s position this way: “Banner Health argued that once a judge determines to exceed the $1,000,000 cap on economic damages, the judge gets to craft from scratch a quantum of damages, effectively ignoring the jury’s award.”

The Gressers answered that the good-cause and unfairness language governs only the court’s first decision, whether to exceed the cap, and not its second, the amount of damages. Once a court decides to exceed the cap, they argued, it cannot substitute its judgment for the jury’s; the jury’s award stands, “subject to common-law challenges,” and under the common law the party attacking an award as excessive bears the burden of showing that it should be reduced.

The justices heard argument in June 2025. Justice William W. Hood III asked Banner Health’s lawyer: “If you were right about the court essentially having unfettered discretion, doesn’t it strike you that the legislature would have been a little bit more clear about that?” Justice Richard L. Gabriel said, “I don’t see anything in the statute that says you ignore the jury’s verdict once the court decides there’s grounds to exceed the cap,” and added, “And your position, I fear, almost ignores the jury’s verdict.” Justice Carlos A. Samour Jr. asked, “What’s the point of having the jury sit through a trial, determine damages and then if the cap gets exceeded, basically say, ‘The court’s gonna do whatever the court’s gonna do?’”

Justice Maria E. Berkenkotter wondered whether broad discretion to reduce a verdict would also be discretion to raise it. “Can the plaintiff then come in with evidence that healthcare costs have exploded and are exceptional?” she asked. “That is exactly what’s going to happen,” Schanker answered. If a judge substituted the court’s judgment for the jury’s, he said, the Gressers would argue that “the verdict should be in excess of what the jury entered.” Chief Justice Monica M. Márquez observed that the statute did not say where a judge should begin: “do we start at a million and work our way up or do we start at the jury verdict and work our way down?” If the law was to require a second trial over damages above $1 million, Schanker said, “then the Capitol is the place to argue that in January. Because that’s nowhere in the statute.”

Four months later, Justice Hood wrote for all seven justices. The legislature, the court said, had clearly abrogated the jury’s authority to determine damages in the first instance by presumptively limiting them to $1 million, and it had made the court the gatekeeper on whether to exceed that amount. But the statute says nothing about how to calculate damages under the exception, and that silence does not show a clear intent to take away the jury’s common-law authority over the amount. At common law, “determining the amount of damages is solely within the province of the jury.” Where a statute leaves a gap and the legislative history gives no clear answer, Colorado courts fill it with common-law principles.

The grammar of the exception pointed the same way. In the exception’s text, the court’s determination that economic damages would exceed the limit and that applying the limit would be unfair relates to “upon good cause shown,” which relates to the conditional “if.” The good-cause and unfairness requirements therefore apply only to the first decision, whether to exceed the cap, and not to the second, the amount. The court rejected Banner Health’s “invitation to interpret the statute as imposing a ‘good cause and fairness’ standard on the court’s determination of the amount of damages beyond the statutory cap.” The 1988 bill’s history did not settle the question. The legislature had acted to contain the rising cost of malpractice insurance, and Senator Strickland, one of the bill’s sponsors, had emphasized how important it was that “the provision of fairness prevail throughout this bill,” but the court found no legislative history directly addressing who calculates damages once the cap is exceeded.

The rule the court announced is that once a trial court finds good cause to exceed the cap and finds the cap unfair, “the jury retains its authority to determine the amount of damages, subject only to the court’s remittitur authority and its authority to review the award for the sufficiency of the evidence.” A judge who finds a verdict so excessive that it shocks the judicial conscience and shows passion, prejudice, or corruption must order a new trial on all issues. A judge who finds a verdict grossly and manifestly excessive, without such bias, may order a remittitur and, if the plaintiff refuses it, a new trial on damages. Judge Taylor had found neither, and the Supreme Court affirmed. In a footnote, the court declined to reach Banner Health’s argument that the billed past medical expenses, “largely based on chargemaster rates,” did not reflect what the Gressers actually paid, citing Justice Hart’s description of a hospital chargemaster as “a comprehensive list of charges for every supply or service a hospital might provide in serving a patient.” The court modified its opinion on November 24, 2025; the modified opinion, 2025 CO 60M, affirms the judgment of the Court of Appeals.

Schanker’s Case for the Civil Jury

Schanker has called the court’s recognition of the jury’s central role in awarding damages the most significant part of the decision. “The right to a trial by jury is constantly under attack since it is not a right given to Coloradans in the Colorado Constitution in civil cases,” he said. In Gresser, the Supreme Court accepted that the legislature had limited the jury’s role by presumptively capping damages, and then held that the legislature had not clearly taken away the jury’s power to fix the amount once a court lifts the cap. “Regardless of the type of case, a jury’s award of damages is paramount, unless the legislature expressly says otherwise,” Schanker said.

For families bringing malpractice claims over catastrophic injuries, he said, “The ruling means that a jury of our future clients’ peers will determine their damages, not a judge on paper after post-trial motions practice.” Asked what he hoped lawyers and judges would take from the case, he answered: “Medical malpractice cases are about more than dollars and cents; they are about families who put their trust into a person or an institution yet had that trust taken advantage of.” Lawyers and insurers, he said, should listen to stories of loss the way the trial court and the Supreme Court had. “Juries certainly do.”

Schanker has worked on the legislative side of those questions as well. He has drafted and lobbied for consumer legislation, has testified dozens of times at the Capitol on insurance-law questions, and is a past president of the Colorado Trial Lawyers Association. Jury selection is a specialty of his trial work, and he has lectured on trial skills for the American Association for Justice, the CTLA, and the Colorado Bar Association.

A Colorado native, Schanker founded the Denver firm Bachus & Schanker with Kyle Bachus in 1996. He and Bachus started their firm in a single ten-by-ten-foot office. “We didn’t have much, but we knew this was where we were going to start our mission; to protect those without a voice, against those that had very little respect for humanity but a great deal of respect for profits,” Schanker has said. Through the firm’s Bachus & Schanker Cares Foundation he supports local nonprofits, among them the JAMLAC legal aid clinic, Habitat for Humanity, and Mothers Against Drunk Driving.

The Gressers’ daughter was born healthy and was flown to Denver two days later. The judgment entered for her care came through two rounds of appeals intact. “After the Supreme Court affirmed the judgment,” Schanker said, “our clients were able to breathe for the first time.” They knew, he said, that their daughter “was going to be taken care of for the rest of her life.”