S-23-0860 Vivianne T. M., a minor, by and through her mother, Andrea D. Marousek, and her father, Jacob L. Marousek, as next friends and natural guardians; Andrea D. Marousek, individually; and Jacob L. Marousek, individually (Appellants) v. Nebraska Pediatric Practice, Inc.; Children’s Hospital and Medical Center d/b/a Children’s Specialty Physicians, d/b/a Children’s Hospital & Medical Center, and d/b/a Children’s Hospital and Medical Center; and Heidi N. Killefer, M.D. (Appellee)
Appeal from the District Court for Douglas County, Judge James M. Masteller
Attorneys: Patrick J. Cullan, Joseph P. Cullan, and Joseph S. Fox (Cullan & Cullan L.L.C. for Appellant), William R. Settles and Patrick G. Vipond (Lamson Dugan & Murray LLP for Appellees), Kamron T.M. Hasan and Amanda JoLee (Special Asst. Attorneys General for Nebraska Department of Insurance and the State of Nebraska Excess Liability Fund), Andre R. Barry (Cline Williams Wright Johnson & Oldfather, L.L.P. as amicus curiae for Nebraska Medical Association), and Mark Richardson (Rembolt Ludtke LLP as amicus curiae for the American Association for Justice and the Nebraska Association of Trial Attorneys).
Civil: Constitutionality of Nebraska Hospital Medical-Liability Act
Proceedings below: A jury awarded Appellants damages in an amount more than what is permitted under the Nebraska Hospital-Medical Liability Act, so the district court reduced the damage award. Appellant filed a petition to bypass the Nebraska Court of Appeals, which the Nebraska Supreme Court granted and ordered this case to be transferred to its docket.
Issues: Appellants assign the following errors: 1) The trial court erred in when it failed to recognize that the cap on economic damages imposed by the Nebraska Hospital Medical-Liability Act, Neb. Rev. Stat. § 44-2801, et seq., is an unconstitutional deprivation of substantive due process as applied when the cap reduces a jury’s verdict so significantly that the financial shortfall drastically reduces the malpractice victim’s life expectancy; 2) The trial court erred when it held the economic damages imposed by the Nebraska Hospital Medical-Liability Act, Neb. Rev. Stat. § 44-2801, et seq., did not offend substantive due process by disproportionally depriving the very few most injured victims of medical negligence of the full measure of economic damages; and 3) In the event some cap validly applies, the trial court erred in holding that one single cap applies for one occurrence when the medical-negligence victim was injured by two separate and wholly distinct acts of negligence amounting to two “occurrences” and therefore the imposition of two caps.
On cross-appeal, Appellees assign the following errors: 1) The district court erred when it excluded relevant evidence of nonaccidental trauma even after Appellants opened the door to such evidence; 2) The district court erred when it denied Appellees’ motion for new trial based on the district court’s prejudicial error in excluding relevant evidence of non-accidental trauma; 3) The district court erred when it permitted Appellants’ expert, Dr. Mantovani, to testify to opinions that were undisclosed and contrary to law; and 4) The district court erred when it denied the motion for directed verdict and judgment notwithstanding the verdict (“JNOV”) of Appellee CHMC and denied the remaining Appellees a new trial.