Submitted: January 11, 2017
from United States District Court for the District of
Nebraska - Omaha
SMITH  and KELLY, Circuit Judges, and SIPPEL,
District Judge. 
jury awarded $17 million to a child born with severe brain
damage, the district court applied Nebraska's tort-reform act
to reduce the verdict by almost 90 percent, to $1.75 million.
The court declined, though, to retry the case based on
alleged errors and omissions in the jury instructions. The
child appeals the application and constitutionality of the
Nebraska act. The hospital appeals the refusal to retry the
case. For the reasons below, we affirm.
The Nebraska Hospital Medical Liability Act
than 40 years ago, the Nebraska legislature passed the
Nebraska Hospital Medical Liability Act ("Act") to
curb meritless medical malpractice claims and efficiently
resolve meritorious ones. Neb. Rev. Stat. § 44-2801. The
Act caps malpractice damages according to the time of
occurrence. Id. § 44-2825(1). For incidents
between 2004 and 2014, such as this case, the cap is $1.75
million. Id. Capped damages are allocated between
two sources. The first is the health care provider, whose
liability is capped at $500, 000 per occurrence. Id.
§ 44-2825(2). The second is the "Excess Liability
Fund" set up by the Act, which pays the remainder of
damages up to the total cap. Id. § 2825(3).
does not apply automatically, and it has a notable opt-out
provision. A health care provider must affirmatively qualify
for the Act's protections by filing proof of financial
responsibility and paying into the Excess Liability Fund.
Id. § 44-2824(1). A provider who does not
qualify is "subject to liability under doctrines of
common law." Id. § 44-2821(1). And even
when a provider does qualify, a patient may opt out.
Id. § 44-2821(2). To facilitate this opt-out
right, a qualified health care provider must post a sign in
its "waiting room or other suitable location"
notifying patients that they are subject to the Act unless
they opt-out. Id. § 44-2821(4).
was born on November 2, 2012, after a long labor. She was not
breathing. She survived but suffered severe brain damage.
Through her mother, S.S. sued three parties for medical
negligence: (1) The Midwife's Place, where her mother
received prenatal care; (2) Heather Ramsey, a certified
nurse-midwife who worked at The Midwife's Place; and (3)
Bellevue Medical Center ("Bellevue"), the hospital
where S.S. was born. S.S. settled her claims with The
Midwife's Place and Ramsey. The claims against Bellevue
went to trial. These claims focused on the alleged negligence
of two Bellevue nurses. A jury returned a verdict for $17
moved for post-trial relief. The court granted Bellevue's
motion to amend the judgment under Federal Rule of Civil
Procedure 60(b) by reducing the damages to $1.75 million
based on the Act, holding that the Act applied and did not
violate the United States Constitution. But the court denied
Bellevue's motion for a new trial under Federal Rule of
Civil Procedure 59 based on alleged errors and omissions in
the jury instructions, holding that Bellevue waived certain
alleged errors and was legally incorrect about others. S.S.
appeals from the Rule 60(b) ruling, and Bellevue appeals from
the Rule 59 ruling.
Rule 60(b) Motion
ordinarily review Rule 60(b) rulings for abuse of discretion.
Holt v. Howard, 806 F.3d 1129, 1133 (8th Cir. 2015).
But here the ruling was based on the district court's
statutory and constitutional interpretations, which we review
de novo as issues of law. United States v. Smith,
656 F.3d 821, 826 (8th Cir. 2011). Because an error of law
is an abuse of discretion, the result in this case
would be the same under either standard. See Noah v. Bond
Cold Storage, 408 F.3d 1043, 1045 (8th Cir. 2005).
challenges the Act's damages cap on six grounds. She
argues that it (1) does not apply in her case; (2) violates
the United States Constitution's Seventh Amendment right
to a jury trial; (3) violates the United States
Constitution's Fifth Amendment right to just compensation
for government takings; (4) violates the federal
constitutional right of access to courts; (5) violates the
United States Constitution's Fourteenth Amendment right
to equal protection of the laws; and (6) violates the United
States Constitution's Fourteenth Amendment right to
substantive due process.
contends that Bellevue is not entitled to the Act's
protections because Bellevue is not a "qualified"
health care provider under the Act. Bellevue met the
Act's financial requirements by filing proof of financial
responsibility and paying into the Excess Liability Fund.
See Neb. Rev. Stat. § 44-2824(1). The issue is
whether Bellevue properly posted the required opt-out notice.
See id. § 44-2821(4). S.S. argues that Bellevue
did not, for two reasons.
first is procedural. When Bellevue moved for post-trial
relief under the Act, it attached evidence of compliance with
the financial requirements but did not mention the notice
requirement. After S.S. alleged in her response that Bellevue
failed to comply with the notice requirement, Bellevue
replied with evidence of notice and argued that notice is not
required for qualification under the Act. S.S. insists that
Bellevue waived these arguments by raising them in reply. Any
such waiver, though, would not bind the court. See Barham
v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584
(8th Cir. 2006). And here the district court used its
inherent docket-management authority, see Dietz v.
Bouldin, 136 S.Ct. 1885, 1892 (2016), to allow S.S. to
respond in surreply. We may therefore consider the issue of
second reason is substantive-that Bellevue did not properly
post notice. Bellevue responds that posting notice is not a
requirement for qualification under the Act, because the
qualification requirements are plainly set out in one
section, see Neb. Rev. Stat. § 44-2824(1), and
the notice requirement, which appears in a different section,
expressly applies to health care providers who have
"qualified" under the Act, id. §
44-2821(4). According to Bellevue, this indicates that
qualification occurs before and separate from the notice
Bellevue acknowledges, we touched on the notice requirement
in Lozada v. United States, a Federal Tort Claims
Act case addressing whether a federal hospital was in
"like circumstances" with a qualified private
hospital under the Act. 974 F.2d 986, 987-88 (8th Cir. 1992).
The opinion's background section mentioned notice as a
requirement for qualification, id. at 987, but
notice did not form any basis of our holding, so this passing
mention does not bind our panel, see Passmore v.
Astrue, 533 F.3d 658, 660-61 (8th Cir. 2008).
that notice is not a requirement for qualification under the
Act, but rather a requirement imposed on those already
qualified. The plain language of the Act reveals as much.
See Johnson v. City of Fremont, 845 N.W.2d 279, 286
(Neb. 2014) ("[A]bsent anything to the contrary, an
appellate court will give statutory language its plain and
ordinary meaning."). Section 44-2824 begins by listing
the requirements "[t]o be qualified under the . . .
Act." Neb. Rev. Stat. § 44-2824(1). Every
subsection in § 44-2824 discusses something about
qualification. See id. § 44-2824. Section
44-2824 does not, however, mention posting notice. See
id. Instead, notice is mentioned only in § 44-2821
and only as a requirement for each health care provider
"who has qualified under the act." Id.
§ 44-2821(4). Although the Nebraska Supreme Court has
not addressed the exact issue we face, it has been careful to
observe the statutory distinction between being
"qualified" and posting notice. See Prendergast
v. Nelson, 256 N.W.2d 657, 662 (Neb. 1977) ("Every
qualified health care provider is required to post a notice
that he has qualified under the act."). We see no basis
to ignore the statute's wording. Bellevue therefore did
not lose the Act's protections even if it failed to
properly post notice.