$17 Million Verdict for Baby Not Breathing at Birth
After trial: Reduced by statute and affirmed. The jury returned $17,000,000 in August 2015; the district court cut it to the $1,750,000 statutory cap, and the Eighth Circuit affirmed on June 22, 2017 (860 F.3d 1038), upholding the reduction and the refusal to retry.
Won by Cullan & Cullan LLC.
A child was born at Bellevue Medical Center in November 2012 after a long labor 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.
What happened
A child was born on 2 November 2012 at Bellevue Medical Center in Nebraska, after a long labor. She was not breathing at birth.
She survived with severe brain damage. By the time of trial she could not walk or talk and had limited vision. The damages case was built around what the rest of her life would cost: lifetime physical therapy, occupational therapy, medical care, equipment and nursing.
The claims that went to trial focused on the negligence of two of the hospital's nurses. Her counsel characterised the care as a global abandonment of a patient.
The case was in federal court for an ordinary reason: the family had moved to Colorado for the child's treatment before suit was filed.
After a nine-day trial before Chief Judge Laurie Smith Camp, the jury deliberated about three hours and returned $17,000,000 in August 2015.
The district court reduced it to $1,750,000.
The occurrence was in 2012, which puts it in the tier of Nebraska's cap running from 2004 to 2014: $1,750,000 in total. Of that, the hospital's own exposure was capped at $500,000 and the state Excess Liability Fund paid the balance. That is why the State of Nebraska intervened in the case and why an insurer filed as amicus on the defense side. The plaintiffs challenged the cap's constitutionality, with Robert S. Peck of the Center for Constitutional Litigation arguing that point.
On 22 June 2017 the Eighth Circuit affirmed, upholding both the reduction and the refusal to retry the case. It is final.
The family was represented by Joseph and Patrick Cullan of Cullan and Cullan in Omaha, with Robert S. Peck on the constitutional challenge. The child is identified only by initials, as the court identified her.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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