Justices Won’t Review Nebraska’s Med Mal Damages Cap

By Jeannie O’Sullivan

Law360, New York (December 4, 2017, 3:55 PM EST) — The U.S. Supreme Court on Monday denied a bid by the Nebraska mother of a brain-damaged infant to overturn an Eighth Circuit decision upholding the reduction of her $17 million jury verdict to $1.75 million per the state’s cap on total damages in medical malpractice cases, a move she argued was unconstitutional.

The high court’s refusal to hear the case dealt a blow to Doran Schmidt, who accused Bellevue Medical Center LLC nurses of failing to notice the effects that the labor-inducing drug Pitocin had on Schmidt’s unborn daughter, who suffered severe brain damage. A trial court slashed Schmidt’s award under the Nebraska Hospital Medical Liability Act, which caps total damages in medical malpractice cases.

“It is unfortunate that the court did not take up this case, leaving a family devastated by an egregious instance of malpractice and a verdict of more than $17 million needed to finance the care of this child with less than 10 cents on the dollar,” Schmidt’s attorney Robert S. Peck of the Center for Constitutional Litigation told Law360 on Monday.

An attorney for the respondents didn’t immediately respond to a request for comment on Monday.

The Eighth Circuit panel unanimously ruled in June that the district judge did not err by reducing the award. In her September petition for the high court’s review, Schmidt argued that the trial court’s action effectively violated her right to a jury trial.

The Eighth Circuit’s ruling contravened the Supreme Court’s 1998 holding in Feltner v. Columbia Pictures, which gives juries, rather than a trial judge, the authority to determine damages, Schmidt contended.

Further, the Seventh Amendment’s constitutional right to a jury trial should be made applicable to the states through the due process clause of the Fourteenth Amendment, Schmidt argued. She drew a parallel to the Supreme Court’s 2010 ruling in McDonald v. City of Chicago, in which the justices applied the right of gun ownership to the states, and by extension local governments, that attempted to ban handguns.

The circuit courts have relied on 19th century precedent to deny application of the Seventh Amendment to the states, Schmidt said, and “only a decision by this court, as it did with respect to the Second Amendment, can break the logjam created by the 19th century precedents.”

At least three circuit courts, including the Eighth Circuit in the instant case, have sidestepped the Seventh Amendment state applicability issue altogether and proceeded directly to the merits in determining that legislative damage caps are not unconstitutional, Schmidt argued.

The issue is a recurring one that will “evade review” without the high court’s examination, according to Schmidt.

“The court will need to face the issue of the Seventh Amendment’s right to jury trial’s applicability to the states eventually,” Peck said on Monday.

The suit was filed in 2013 and alleged that Bellevue nurses failed to monitor the status of Schmidt’s fetus for hours after administering Pitocin, which caused brain damage, seizures, developmental delay and respiratory distress in the child.

Following a nine-day trial in August 2015, the jury awarded $17 million, which was reduced to $1.75 million by U.S. District Judge Laurie Smith Camp in November 2015, according to court records.

Schmidt is represented by Robert S. Peck of the Center for Constitutional Litigation, and Joseph P. Cullan and Patrick J. Cullan of Cullan & Cullan LLC.

Bellevue was represented by Brien M. Welch, Kathryn J. Cheatle and David A. Blagg of Cassem Tierney Adams Gotch & Douglas.

The case is S.S., a Minor, By and Through Her Mother and Next Friend, Doran Schmidt v. Bellevue Medical Center LLC et al., case number 17–450, in the U.S. Supreme Court.

— Additional reporting by Y. Peter Kang. Editing by Stephen Berg.

I’m a trial lawyer, a Democratic activist and a sports fan.

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