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Schmidt v. Bellevue Medical Center L.L.C.

United States District Court, D. Nebraska

November 25, 2015

DORAN SCHMIDT, Individually; and S.S., a minor, by and through Doran Schmidt, her natural mother and next friend; Plaintiffs,



Sage Schmidt was born at the Bellevue Medical Center on November 2, 2012, with severe brain damage. Before trial, Sage Schmidt and her mother, Doran Schmidt, reached a settlement with former Defendants Heather Ramsey, the treating certified nurse midwife, and The Midwifie’s Place, where Doran Schmidt received her prenatal care as well as care during the early stages of labor. On August 6, 2015, following a two-week trial, the jury returned a verdict in favor of Plaintiff Sage Schmidt and against the Bellevue Medical Center in the amount of $17, 000, 000.00.

The matter is now before the Court on The Bellevue Medical Center’s Post-Trial Motions Pursuant to Fed.R.Civ.P. 50, 59 and 60 and Request for Oral Argument (Filing No. 263).

First, Defendant Bellevue Medical Center, L.L.C. (“Bellevue Medical Center”) moves for a new trial pursuant to Fed.R.Civ.P. 59, asserting:

a. The Court failed to instruct the jury on determination of the settling parties’ liability pursuant to Neb. Rev. Stat. §§ 25-21, 185.09 and 25-21, 185.11;
b. The Court failed to provide a verdict form which included an apportionment of obligation;
c The Court instructed the jury on joint and several liability in the second paragraph of Instruction No. 11;
d. The Court failed to follow Nebraska law regarding the duty of nurses as set forth, in part, in Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178 (Neb. 1990), and failed to instruct the jury in accordance therewith; and
e. The damages awarded were excessive.

Second, Bellevue Medical Center moves pursuant to Fed.R.Civ.P. 60(b) for correction or vacation of the judgment by:

a. Limiting the amount of the judgment to $1, 750, 000.00, because Bellevue Medical Center is a qualified health care provider under the Nebraska Hospital-Medical Liability Act, Neb. Rev. Stat. §§ 44-2801 to 44-2855, and the amount recoverable is limited by Neb. Rev. Stat. § 44-2825;

b. Vacating the judgment for failure to deduct the share of responsibility attributable to settling parties Heather Ramsey and The Midwife’s Place, L.L.C.

Third, Bellevue Medical Center renews its earlier motions pursuant to Fed.R.Civ.P. 50 for judgment as a matter of law, or in lieu thereof for a new trial, for the reasons stated during trial.


Fed. R. Civ. P. 50

“If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.”

Fed. R. Civ. P. 50(a).

“In ruling on the renewed motion [after trial], the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law.” Fed.R.Civ.P. 50(b).

Fed. R. Civ. P. 59

“The court may, on motion, grant a new trial on all or some of the issues-and to any party-as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court . . . .” Fed.R.Civ.P. 59(a).

Fed. R. Civ. P. 60

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).


I. Motion for New Trial Pursuant to Fed.R.Civ.P. 59

A. Failure to Instruct on Determination of Settling Parties’ Liability

Neb. Rev. Stat. § 25-21, 185.09 provides:
Any contributory negligence chargeable to the claimant shall diminish proportionately the amount awarded as damages for an injury attributable to the claimant’s contributory negligence but shall not bar recovery, except that if the contributory negligence of the claimant is equal to or greater than the total negligence of all persons against whom recovery is sought, the claimant shall be totally barred from recovery. The jury shall be instructed on the effects of the allocation of negligence.Neb. Rev. Stat. § 25-21, 185.11 provides:
(1) A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable shall discharge that person from all liability to the claimant but shall not discharge any other persons liable upon the same claim unless it so provides. The claim of the claimant against other persons shall be reduced by the amount of ...

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