CCL filed a brief Monday, challenging Nebraska’s 40-year-old cap on damages in medical malpractice cases in Schmidt v. Bellevue Med. Ctr., currently pending in federal district court in Nebraska. The underlying case involves a now nearly three-year-old girl who suffered severe brain damage during birth.  A jury determined that the hospital was liable and found damages to amount to $17 million. Under the 1976 law, which has been amended to increase the damage cap several times, the verdict would be reduced to $1.75 million.

The Cullan & Cullan law firm of Omaha, which tried the case, hired CCL to help them challenge the damage cap, which applies to all damages in the case, economic and noneconomic. In Monday’s brief, written by CCL President Robert S. Peck, the plaintiffs argue that the cap violates the federal and state right to trial by jury, arguing that the Seventh Amendment guarantee in the U.S. Constitution should be applied to the states. In addition, the brief asserts that the cap violates the right of access to the courts, constitutes a taking without just compensation, is inconsistent with equal protection, and cannot be justified on substantive due process grounds.