In a rare tie, the Colorado Trial Lawyers Association named Gresser v. Banner Health one of its 2026 Case of the Year honorees this spring.
The case was led by Darin Schanker of Bachus & Schanker and arose from the failure to diagnose and treat a newborn’s infection, resulting in catastrophic brain injury. The family secured a $27 million jury verdict against Banner Health.
On appeal, the case reached the Colorado Supreme Court, which issued a unanimous decision preserving the full judgment, reinforcing the principle that jury verdicts may not be displaced where “good cause” exists to exceed statutory damages caps.
Law Week Colorado spoke with Schanker about the case:
Law Week Colorado: What first drew you to take on Gresser v. Banner Health?
Schanker: J. Howard Thigpen, an attorney in my office, first looked at the case. He approached me about it because, in a case with a terrible result for the client, something seemed not right, given the documentation in the client’s medical records at the hospital.
LWC: Can you walk us through a few key moments in the medical timeline that formed the foundation of liability in this case? What were the challenges in proving causation and damages?
Schanker: Our client was born healthy at Banner Health in Greeley, with Apgar scores of 8 and 10 in the first minutes of her life. Two days later, she had developed full-blown sepsis and was on a Flight for Life to Children’s Hospital in Denver. She survived but has been left with profound injuries which require constant lifetime care and monitoring. The trial was about what happened during those two fateful days.
In many medical malpractice cases, the plaintiff runs from the records; here, though, the opposite happened. The nurses and doctors at the hospital recorded in detail what was happening with our client during her first two days of life. For example, the records show that mom ran to the nurse’s stand twice because her baby stopped breathing. The records show decreasing feeding and increasing fussiness. The records show the newborn was increasingly irritable and fussy. The records show she had signs of respiratory distress. These were all signs of sepsis, which calls for immediate treatment with precautionary prophylactic antibiotics.
Despite all these signs — and a standing order in the baby’s records for a nurse to immediately notify a doctor of any one of these symptoms so that a doctor could start the antibiotics — the nurse on duty did not do so. The next nurse who came on shift checked out the baby and immediately recognized the extreme distress. Tragically, the baby was only then transferred to the ICU.
Demonstrating causation was a challenge in this case because we had to show that earlier intervention with antibiotics would have prevented the catastrophic outcome. Our client developed E. coli, sepsis and meningitis. As such, our infectious disease specialist taught the jury that E. coli has a very stable and calculable doubling time. By doing the math on how much E. coli was present in the samples the hospital took, 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.
LWC: How did the jury respond to the evidence at trial, and what do you think most influenced their $27 million verdict?
Schanker: The jury paid incredibly close attention over the three weeks of the trial. The court permitted the jurors to ask questions of witnesses after the lawyers were done, and they asked dozens of very detailed ones. A lot of the evidence the jury heard with regards to damages came from her treating doctors and therapists (physical therapist, music therapist, water therapist, hippotherapy therapist, etc.). They uniformly testified that if our client did not continue to receive these robust therapeutic interventions, her abilities would decline rapidly, and she may perish.
From the beginning, this case for our family was ensuring that their beautiful child was taken care of when they were no longer around. So our ask to the jury was pretty simple — provide for her past and future medical costs so she and her family could have hope for her future. Our ask for damages therefore wasn’t driven by emotion but by purpose. Ninety percent of what we asked for was for medical care. I believe the jury respected that we weren’t trying to tug at their heartstrings by asking for a big number in a rural county. Rather, we were asking for a large sum to keep this innocent child happy and healthy for as long as possible.
LWC: Banner Health’s appeal focused on Colorado’s statutory damages cap. What was the central legal argument on your side in response?
Schanker: 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. On appeal, Banner attempted to submit hundreds of pages of “new evidence” about her damages for the trial court to consider, which was summarily rejected.
Our central argument was simple: juries determine damages in Colorado, and nowhere does the Health Care Availability Act say otherwise in a medical malpractice case. Therefore, once a trial court makes a determination to exceed the cap in a given case, then that judge should default to the award determined by the jury. The HCAA does not create a second bite at the apple and allows for a re-determination of damages by the trial judge, and the statute does not allow the consideration of new evidence.
Our jury determined that our client needed over $23 million to pay for her future health care needs for optimal care to keep her healthy. The trial court properly defaulted to that. The Court of Appeals did as well, and then the Supreme Court unanimously found that the trial court got it right.
LWC: The Colorado Supreme Court issued a unanimous decision in your favor. What was most significant to you about the Court’s reasoning?
Schanker: The most significant part of the unanimous decision was the Supreme Court recognizing and revalidating the central role a jury has in awarding damages in our system of justice. Regardless of the type of case, a jury’s award of damages is paramount, unless the legislature expressly says otherwise.
LWC: The Court emphasized the importance of the jury’s role in determining damages. How do you see this decision impacting future civil trials in Colorado?
Schanker: 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. The Supreme Court reaffirming the common law tradition that the jury determines damages will impact all sorts of cases, particularly those that involve a statutory cap on damages that a court can exceed if certain conditions are met.
LWC: What does this ruling mean for families pursuing medical negligence claims involving catastrophic injury?
Schanker: 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.
LWC: Looking back, is there a moment in the case that was especially pivotal, either at trial or on appeal?
Schanker: The hospital’s first defense was that its nurses did not fall below the standard of care. They then put forth the proposition that even if the hospital was careless, that failure did not cause any avoidable losses. And then, Banner claimed that if its negligence caused losses, those losses were so catastrophic that our client would not live very long and would therefore not need much money for her care.
Central to those defenses was the testimony of the defendant’s pediatric neurologist, who opined that our client was effectively a vegetable unable to respond to stimuli in a meaningful way (like people being in a room with her). The most powerful moments of the trial were when that neurologist was cross-examined with videos of our client moving her hands to grab rings in a pool, riding a horse, and participating in music therapy. He was then asked if she could have hopes and dreams, a question at which he scoffed, before being shown a video of her watching the movie “Frozen.” While watching the video, she danced along with the music and threw her arms up in the air with joy, 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.
LWC: What do you hope attorneys and judges take away from Gresser v. Banner Health as a precedent going forward?
Schanker: 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. All professionals – medical or otherwise – are held to the same standard in which they just need to do their job the right way.
Behind all of the noise is the simple proposition that these clients are the ones who got a catastrophic outcome that should have very easily been avoided. Attorneys and insurance companies should listen to these human stories of loss, like the trial court and Supreme Court did. Juries certainly do.
LWC: You were recognized with a Colorado Trial Lawyers Association Case of the Year award for this matter. What does that recognition mean to you personally and professionally, especially in light of the work you put into this case?
Schanker: After the Supreme Court affirmed the judgment, our clients were able to breathe for the first time. They knew their daughter was going to be taken care of for the rest of her life. That is the ultimate satisfaction as a lawyer; no one on our team could ask for more.
But it is always nice to have your peers recognize your hard work and the positive impact it may have on plaintiffs and their cases in the future.