On June 1, an Omaha trial judge struck down Nebraska's $1.25 million limit on compensation in medical malpractice actions in the case of a child whose medical expenses alone exceed that amount.

This is yet another victory in AAJ's 5-year-old effort to challenge unconstitutional restrictions on the legal rights of injured people and the authority of citizen juries. AAJ has succeeded in invalidating tort "reforms" in Illinois, Indiana, Ohio, and Oregon.

Calling the limit "fundamentally unfair" to severely injured persons and finding that the limit was "guilty of the same evil" as an overturned Alabama statute, Douglas County Circuit Court Judge Michael McGill ruled that the limit violated rights to jury trial and to equal protection of the laws guaranteed by the Nebraska Constitution.

The judge reinstated a jury verdict of $5 million for medical expenses and other direct costs and $625,000 for pain and suffering.

"The judge ruled that the Legislature is not free to craft a one-size-fits-all remedy in personal injury cases," noted John Vail of AAJ, co-counsel for plaintiffs in the case. "Under the Constitution, jurors, not legislators, decide what damages should be."

The statute was passed in response to a "crisis" in liability insurance rates, a crisis McGill found never existed. Citing "voluminous" materials submitted to the Court, McGill also found there is "no legitimate relationship between insurance rates and the cap."

The statute creates a fund for paying malpractice verdicts, a fund the defendants asserted would be jeopardized if the limit were held unconstitutional. McGill found, however, that the fund had "huge fund balances and relatively modest liabilities."

The plaintiffs established, by cross-examination of defendants' own witness, that if the cap were held unconstitutional the fund would remain actuarially sound.

The ruling came despite a 23 year old Supreme Court case which upheld the limit, a case the Judge found did not control "the questions presented in the case at bar."

The case is Gourley v. Nebraska Methodist Health System, Inc., Doc. 944, No. 250. Plaintiffs are represented by Vail and by Dan Cullan and Paul Madgett of Cullan and Cullan in Omaha.