Late last month, a jury ordered Douglas County resident Casey Ferguson's insurance company to pay Chicago's Tom Dubert $263,454.44 in damages for a February 2015 skiing accident at Keystone in which Dubert separated his shoulder.
At first blush, the size of the award seems excessive. After all, a separated shoulder is a fairly common injury from which most victims completely recover in a matter of months. But as he did in court, attorney Evan Banker of the Denver-based firm Chalat Law argues that the amount is entirely justified given the unique facts of the incident.
"I've read a lot of the comments to articles about the case, and people get up in arms," Banker acknowledges. "They say, 'That's so much money for a shoulder. You can separate my shoulder for that kind of money' — and that bothers me. These people are making judgments without having listened to three days of evidence. Every juror on that panel came in saying, 'Accidents happen' and talking about frivolous lawsuits — asking, 'What are we doing here?' But after being instructed in the law and listening to the evidence, this is the number they came up with."
Here's how Banker describes the scenario.
"Tom Dubert was on vacation with his son, his friend, his friend's sister and his friend's son at Keystone," he says. "They're out of Chicago. He's a Chicago paramedic with the fire department out there. It was the last run of the vacation, at around 3 p.m. on a Tuesday, and they were skiing down the Flying Dutchman run."
Photo courtesy of Chalat Law
In his testimony, "Tom said he stopped at an open section of the run to readjust his goggles, looked uphill, didn't see anyone in the vicinity and then started skiing — making wide turns back and forth across the mountain," Banker continues. "Testimony varied about their ability level, but everyone in the jury could see that these people were intermediate skiers; they had a little wedge in their turn, but they weren't beginners. And the way Tom tells it, he made three or four big turns across the mountain, and as he turned toward the left, he got whacked in the back."
The sister of Dubert's friend was a witness to the crash. According to Banker, "she testified that about ten seconds after Tom started skiing again, a snowboarder" — Ferguson — "crossed directly in front of her at a very fast speed and so close that she could have reached out and touched him. Then she looked down the hill, and five seconds later, she saw the snowboarder crash into Tom's back."
Ferguson's version of events was different, as Banker concedes: "He said Tom was making wide, uneasy turns, but he was able to pass him by about twenty feet — but then Tom accelerated and ran into him." In response, Banker pointed to "a photograph in evidence of the area. It was pretty flat, where you couldn't gain that much speed if you wanted to. The jury saw the evidence and said, 'Yeah, the defendant's story doesn't really make sense.'"
Upon concluding that Ferguson was at fault for the accident, jurors next needed to determine a damage amount. First, they looked at the medical evidence.
"Tom had a grade-three AC joint separation," Banker allows. "The AC joint is the three ligaments that essentially hold your arm onto your shoulder, and when that separates, the arm is only holding on by the musculature and the bony structures."
As a result of the injury, Banker goes on, "Tom was put on a mandatory medical layoff until the Chicago Fire Department cleared him. He was off for two months while he did therapy and then went back on the job. But after about six months, the shoulder was still bothering him, so he went back to his treating orthopedic surgeon. And that doctor said, 'Some patients just don't heal with physical therapy, and you're one of them. You'll need a surgery.'"
This operation has yet to take place, Banker explains, "because of a fire-department rule that says if you have a non-duty-related injury that results in a medical layoff for twelve months in a 24-month period, you'll be forcibly medically retired. He's been off for two months already, and the doctor says it'll take him nine months to recover from surgery, which gives him a one-month cushion. But the injury period was January 2015 to January 2017, at which point his time resets. So they timed the surgery for January because of that."
Next comes the dollars-and-cents part of the jury's calculations.
"Tom earns $140,000 a year, duty time plus overtime," Banker says. "Chicago Fire Department paramedics are notoriously understaffed, and he works in the Englewood area, which has some of the worst gang violence in Chicago. He often responds to homicides: shootings, stabbings. And so if he's off for eleven months, his lost earnings are approximately $128,734. When you add in his past and future medical bills, the total economic loss caused by this injury was $163,454.44. That's every dollar this cost Mr. Dubert. And the rest" — another $100,000 — "is for the non-economic loss."
The granting of this additional six-figure sum was inspired, Banker believes, by tales of Dubert's work ethic.
"Tom is a Polish immigrant who moved to America in 1997," he says. "In Poland, he had been a medical officer in the military, but those qualifications didn't transfer to the U.S. So he worked his way up again in Chicago. He got his license in 2003, and it took him seven years to get into the Chicago Fire Department — and after three years, he was promoted to paramedic in charge. He did it by working every overtime shift he could. He works 24 hours at a clip — that's who he is and what he does. The jury really saw that. And his wife testified that he was a different person during the layoff. He felt useless when he was off for two months, and his wife said she's terrified to think what he's going to be like when he's home for nine months."
Ferguson's legal team "argued that the damages should be cut off to the day when he went back to work — when he reported that he had no pain and he was healed," Banker maintains. "They said, 'Why did you go back to work if it hurt so badly?' And Tom said, in his Polish accent, 'Let me give you an example.' When he went back on the job, they were called out for a five-year-old gunshot victim. When they got there, she had been shot through the temple; there was an entry wound but no exit wound and she wasn't breathing. The police were ready to call it a homicide scene, but the paramedics brought her back. Tom did CPR for 45 minutes, which wasn't easy with a shoulder injury. But a week later, the girls' mom texted him a picture of the girl sitting up in bed, smiling. And he said, 'Why do I work through the pain? Because that little girl is alive. And because she's alive, I can swallow my pain.'"
Another key point about the verdict, from Banker's perspective, involves what he refers to as "the rules of the road" — regulations codified in Colorado's Ski Safety Act that he sees as equivalent to the ordinances written to prevent drivers on I-25 from constantly crashing into each other. But just as important from the standpoint of appealing to a jury is the fact that Ferguson wouldn't be required to pay the judgment personally.
"Mr. Ferguson, the defendant in this case, is insured through his parents' homeowners policy," he says. "That policy provides liability for just about anything you do that's not in a car, because if you cause an injury like this and get sued and a judgment is ordered against you, an attorney might put a lien on your house. The bank doesn't want to see a lien on your home, so it requires as a condition of your mortgage that you insure yourself against that liability — which is why most skiers tend to be insured on a homeowners or renters policy."
Banker's firm usually doesn't take ski-injury cases when the defendants are uninsured, "because if you win, the person will declare bankruptcy and the judgment will be dismissed. It's often a waste of a client's time."
If a defendant is insured, on the other hand, Banker says most complaints are resolved through negotiations with insurers and never reach a courtroom — "but in this case, the insurance company for Mr. Ferguson had a very different evaluation than our firm did. And when you're that far apart, the jury system decides it."
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Which is why Tom Dubert has been awarded more than a quarter-million dollars for a separated shoulder.