A Jury Said $26.1 Million for a Baby Left Permanently Brain Damaged. A Statute Wrote It Down to $2.25 Million, and the Supreme Court Has Not Yet Said Whether That Statute Is Constitutional.
After trial: This entry is live litigation and the number in it is the one the statute currently produces. The jury returned $26,100,000 on 29 November 2021 in the District Court for Douglas County before Judge James M. Masteller, comprising $21.5 million to the injured child and $4.6 million to her parents, reported as the largest medical malpractice verdict in Nebraska history. The district court reduced the whole award to a single Neb. Rev. Stat. section 44-2825 cap. Because the occurrence was in 2017 the applicable tier is the post-2014 one, $2,250,000 in total from all qualifying health care providers and the state Excess Liability Fund combined. The case is on appeal to the Nebraska Supreme Court as No. S-23-860, argued 30 April 2025 and still undecided as of 3 September 2026, and the constitutionality of the cap is in issue. If the cap falls, this figure changes and so do other Nebraska entries. Nebraska bars punitive damages outright, so no punitive component exists here. Nebraska's medical-malpractice cap is unlike almost any other, and it is the reason three of these figures look small beside their verdicts. Neb. Rev. Stat. section 44-2825 caps TOTAL damages, economic included, not just non-economic damages: $1,250,000 for 1993 to 2003, $1,750,000 for 2004 to 2014, and $2,250,000 for occurrences on or after 1 January 2015. The provider's own layer is capped below that and the state Excess Liability Fund pays the balance, which is why the State of Nebraska appears as an intervenor in these cases. Nebraska also bars punitive damages outright as unconstitutional under article VII section 5 of its constitution, so no Nebraska award contains a punitive component to strip out.
Won by Cullan & Cullan LLC.
At about eleven months old, a child suffered brain trauma in an accidental fall at day care, was taken to a hospital in Omaha and discharged without adequate management of her seizures. The seizures continued and caused permanent brain damage. The jury awarded $26.1 million. The statutory cap reduced it to $2.25 million.
What happened
In 2017 a child of about eleven months suffered brain trauma in an accidental fall at her day care. She was taken to Children's Hospital and Medical Center in Omaha.
She was discharged without adequate management of her seizures. The seizures continued, and they caused permanent brain damage. She is severely disabled and requires round-the-clock care. By the time the case reached trial she was five years old and needed a lifetime care plan.
On 29 November 2021 a Douglas County jury returned $26,100,000: $21.5 million to the child for a lifetime of medical care and damages, and $4.6 million to her parents. It was reported as the largest medical malpractice verdict in Nebraska history.
The district court then reduced the entire award to $2,250,000.
That is not a remittitur and it is not a comment on the evidence. Nebraska's Hospital-Medical Liability Act caps total damages, and the cap is not per defendant. The court held that a single cap applied to the whole case. The occurrence was in 2017, which places it in the tier that took effect on 1 January 2015, and that tier is $2,250,000 for everything: the lifetime care, the lost future, the parents' claims, all of it.
The cap itself is now the question. The case is on appeal to the Nebraska Supreme Court as No. S-23-860, transferred off the Court of Appeals docket on the appellants' own petition to bypass. It was argued on 30 April 2025 and remains undecided. The constitutionality of section 44-2825 is squarely in issue, which means the figure in this entry is the one the statute currently produces and not necessarily the one this case ends with.
The family was represented by Patrick J. Cullan, Joseph P. Cullan and Joseph S. Fox of Cullan and Cullan in Omaha. The child is not named here.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Nebraska Supreme Court case-call listing for No. S-23-860, Marousek obo Vivianne M. v. Nebraska Pediatric Practice, Inc., argued 30 April 2025: the appellate docket number and the counsel block naming '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)', which also establishes the Excess Liability Fund's involvement and therefore the cap's operation
- 2.Neb. Rev. Stat. section 44-2825, the total-damages cap and its tiers, including the $2,250,000 limit for occurrences on or after 1 January 2015
More proven verdicts from Cullan & Cullan LLC
All Cullan & Cullan LLC proven verdicts →A Jackson County jury awarded a Kansas City-area family $25.4 million after finding an OB-GYN's improper supervision and excessive Pitocin use during delivery caused their daughter's cerebral palsy, though the verdict was reduced to a final judgment of $20,824,653 under Missouri's statutory cap on noneconomic damages in medical malpractice cases.
Billy Moyle, 24, was driving behind a Mack concrete truck on US Highway 75 near Nebraska City on Halloween 2012. The truck moved into the left turn lane and then turned right across his path, running his pickup off the road. He suffered a broken vertebra and a partially severed spinal cord.
A child was born at Bellevue Medical Center in November 2012 after a long labour and was not breathing at birth. She survived with severe brain damage and by trial could not walk or talk and had limited vision. A federal jury awarded $17 million. The statutory cap reduced it to $1.75 million and the Eighth Circuit affirmed.
A family alleged that negligent management of prenatal care during a 1993 pregnancy caused their son's brain injury. The jury awarded $5,625,000 against an obstetrician and her practice. The statutory cap reduced it to $1,250,000, and the Nebraska Supreme Court affirmed against a five-ground constitutional challenge.
Related medical malpractice verdicts
A Utah judge entered a $951 million default judgment against Steward Health Care after newly trained nurses, an excessive Pitocin drip, and a delayed C-section at Jordan Valley Medical Center left a newborn permanently brain damaged.
A Gainesville jury awarded $900 million, including $700 million in punitive damages, to stroke survivor Joseph Webb over neglect at the University Place Care and Rehabilitation Center, in a Wilkes & McHugh case tried against defaulted Trans Healthcare entities with no defense present, but Florida's First District Court of Appeal reversed the judgment in 2013 because the trial court had refused to let a defense lawyer appear, and the money was never collected; the estate's claim was later resolved for a small share of a multi-estate bankruptcy settlement.
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A Kansas City jury awarded ovarian cancer patient Georgia Hayes $225 million in compensatory damages and $2 billion in punitive damages against pharmacist Robert Courtney, who had diluted chemotherapy drugs for profit. The trial judge later reduced the award to roughly $330 million, and Hayes collected almost nothing from Courtney himself, whose assets had been seized by the federal government. Courtney was sentenced to 30 years in federal prison, and drug makers Eli Lilly and Bristol-Myers Squibb later paid $71 million to settle victims' claims.