$26.1 Million Verdict for Brain-Damaged Baby
After trial: On appeal. The jury returned $26,100,000 on November 29, 2021, and the district court reduced the award to a single Nebraska statutory cap of $2,250,000.
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, No. S-23-860, Marousek obo Vivianne M. v. Nebraska Pediatric Practice, Inc., argued April 30, 2025(original offline)
- 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·Archived copy
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