Keating, O’Gara, Nedved & Peter

Making Nebraska Safer

Thoroughly preparing cases and aggressively representing clients, can yield positive results well beyond the immediate dispute.

In a number of our cases, successful resolution required policy changes by the defendant that improved safety, quality of care, or the delivery of services. Our cases have resulted in improved traffic signal response procedures, faster emergency protocols, more vigilant monitoring of patients, clearer informed consent, and better training for physicians dealing with discreet cancers–just to name a few.

Changes like these help ensure that catastrophic mistakes will not be repeated–and contribute to a safer Nebraska for all of us.

Shaping Nebraska Law

Our attorneys have not only obtained excellent results at trial and through settlement, they have led the way in advancing important issues on appeal to achieve results that have shaped Nebraska law for the better.

In Heins v. Webster County, 250 Neb. 750, the Nebraska Supreme Court threw out the invitee/licensee distinction in premises liability law–a rule dating back to the common law of England. The decision represented a significant shift in Nebraska law lowering the burden on injured Nebraskans to bring claims against negligent landowners.

More recently, in Fickle v. State of Nebraska, 273 Neb. 990, the Court found inadequate, as a matter of law, an award of $500,000 for pain and suffering for our client Jake Wagner. The Court said, “Wagner’s injuries were catastrophic and permanent, and the award of $500,000 for noneconomic damages does not fairly and reasonably compensate him for his pain and suffering.”

To our knowledge, this was the first time in Nebraska court history that an award of $500,000 for pain and suffering was held to be inadequate as a matter of law.

In a ruling that will help ensure that all injured Nebraskans receive the damages they are entitled to, the Court further held that the higher “private-party rate”, not the Medicaid rate, is the proper rate to use in calculating an injured person’s future medical expense damages.

To learn more about Fickle and our other significant cases, scroll down:

Keating, OGara Nets Largest Personal Injury Award Ever Against State of Nebraska Department of Roads

On Friday, December 7, 2007, Colfax County District Court Judge, Mary Gilbride, entered an Order approving a $9,900,000 settlement between the State of Nebraska and Gail Fickle, on behalf of her son, Jacob Wagner.

The settlement follows the July 20, 2007 opinion issued by the Nebraska Supreme Court which upheld the finding of liability against the State of Nebraska as a result of a defective traffic signal on Highway 30 and 15 in Schuyler, Nebraska, and the resulting accident on February 14, 1999. This amount, in addition to payments by other parties, brings the total settlement of this case to over $10,000,000.

According to Gail Fickle: “This has been a very long process when you consider that the accident occurred back in February of 1999, but we are very pleased to finally get the matter resolved so that we can now put the case behind us and continue to focus on providing for Jake’s future.”

The Fickles’ attorney, Doug Peterson, from the firm of Keating, O’Gara, Nedved and Peter stated: “We were very pleased that we were able to sit down with the State and get this matter resolved. Settling the case in this way was in everyone’s best interest. Our hope is that procedures have been improved to make sure that a tragedy like this does not happen again.”

Gail Fickle is currently trying to find facilities in Nebraska that will meet Jake’s medical and therapy needs. Jake is excited at the prospect of being closer to home so that he can see more of his family and friends. Gail wants especially to thank those people who were courageous enough to come forward with information about the malfunctioning lights and their willingness to testify at trial.

Manes Family Settles BSDC Wrongful Death Case

State to pay $600,000 in death at Neb. center
Associated Press
Monday, Mar 23, 2009

OMAHA, Neb. – The family of an 18-year-old woman who died at the troubled Beatrice State Developmental Center has agreed to a $600,000 settlement.

The State Claims Board approved the settlement Monday in the Jan. 16 death of Olivia Manes. It awaits approval by the Legislature.

Manes’ father, David, had sought $1.75 million for his daughter’s suffering and the pain her death caused. His claim was largely based on the state’s investigation into the care his daughter received.

The state investigation revealed a bumbling response to his daughter’s seizure and led the state’s chief medical officer to declare that the center was too dangerous for “medically fragile” residents. More than 40 residents were transferred to community-based facilities as a result.

Manes’ attorney, Jefferson Downing, said Monday that the family was pleased with the settlement.

“You’re never satisfied when somebody has died,” he said, “but they now can close one chapter in their family’s history, so to speak, but continue to work for constructive change at BSDC.”

A spokeswoman for the state Department of Health and Human Services said there would be no comment, in keeping with the terms of the settlement . . . .

Keating, O’Gara Wins Case Against City for Flood Plain Foul-Up

Lost flood map could cost city millions
By CLARENCE MABIN / Lincoln Journal Star
Sunday, Oct 21, 2007 – 12:06:30 am CDT

For Brad and Jennifer Sheaff, it once was the home of their dreams.

A spacious, four-bedroom, ranch in the peaceful, secluded Cardwell Woods subdivision, where many of the houses top $500,000 in value. What more could a couple with two young children want?

“You can walk into a house and say, ‘This just feels right,’” said Jennifer Sheaff. “Well, that’s the way it was for us. It just felt right. It was our dream house.”

But no more.

For the Sheaffs, who bought a one-acre lot eight years ago, and at least two other couples in the development near a tributary of the Cardwell Branch Stream, the dream was shattered in May 2005.

That’s when government officials told the families at a meeting that their homes were in a flood plain.

“I was furious,” recalled Troy Stonacek, a neighbor who also attended the meeting.

The lowest floor of his home, he learned later, was some seven feet below the flood level. Only the top floor and garage were above it.

“I was thinking there was no way this could be happening,” Stonacek said. “We would not have built here had we known about a flood plain.”

The revelation prompted the Stonaceks, the Sheaffs and George and Lori Bristol to sue the city in Lancaster County District Court.

After a bench trial last summer, Lancaster County District Judge Steven Burns ruled last month that the city was negligent for not informing the families about the flood plain when it issued building permits.

A two-day trial before Burns is set to begin in January to determine monetary damages.

If the homeowners get all they want — the replacement value of their houses — damages could easily top $1 million.

“I don’t think I’m too far off to say my home is worth basically zero,” said George Bristol.

“Who would buy a home in a flood plain? And even if you could find such a person, no lending institution would give them the money.”

City Attorney Dana Roper declined comment last week because of the pending damages trial.

The families’ attorney, Gary Nedved of Lincoln, said officials at the May 2005 meeting included representatives from the state Department of Natural Resources and the city of Lincoln.

“That was the first time my clients learned they were below the flood plain,” he said. “We believe there’s been a significant devaluation of their homes.”

Nedved argued — and Burns, in his September written judgment, agreed — that the city knew well before 2005, indeed before the families purchased the lots, that the area was in a flood plain . . . .

The firm’s trial lawyers have also:

* Settled a case for $2.2 million for a teenager who suffered a brain injury in a motor vehicle accident. The firm’s lawyers personally visited with the client’s physicians, had independent testing conducted to verify changes in the client’s cognitive function and had professional videotaping conducted of various activities performed by the client. The settlement is one of the largest ever in the state of Nebraska for this type of injury.

* Settled a case involving an industrial accident in which the firm’s client was exposed to anhydrous ammonia. The client was married, the father of two children, and owned and operated his own landscaping business prior to the exposure. The client suffered pulmonary and cognitive injuries that rendered him completely and totally disabled. The defendant corporation vigorously contested that the exposure could have caused the client’s injuries. The firm retained a nationally recognized physician in California who specialized in diagnosing the cause and effect of toxic exposures. The firm also worked closely with the client’s local doctors to support the claim that the exposure to the anhydrous ammonia caused the client’s disability.

* Settled a medical malpractice action for a dentist who can no longer practice because his vision deteriorated due to LASIK surgery. The doctor’s attorneys asserted that the client’s claim was barred by the two year statute of limitations for medical malpractice actions as the client did not contact the firm for more than two years after the surgery. Based on thorough legal research, the firm’s attorneys were able to develop legal arguments to avoid dismissal of the client’s case. Additionally, the firm’s lawyers worked closely with a leading opthamologist at a midwestern medical school to develop the case of negligence against the defendant opthamologist.

* Settled the tragic wrongful death claims of a farmer and his son who succumbed to carbon monoxide poisoning after a contractor negligently repaired a furnace in their home. The firm engaged top agricultural economists who were able to properly value the damages in the case.

* Settled a medical malpractice action against a doctor and hospital as a result of the death of a man who suffered cardiac arrest because he received too much morphine while awaiting surgery. The defendant’s lawyers contended that the man’s death was unrelated to the morphine and this defense was supported by the pathologist who conducted the autopsy. The firm’s attorneys personally met with two local doctors who had assisted in the care of the client and persuaded them to testify in favor of the victim’s family.

* Settled a product liability case against a major truck manufacturer as the result of brake failure which caused a construction truck to go out of control and kill a 19 year old college student. Through a detailed and vigorous investigation, the firm’s attorneys discovered that the truck manufacturer knew of the defect but failed to conduct a recall of the trucks to correct the problem. Relying on a seldom used legal doctrine, the firm’s attorneys alleged that the law of the state where the truck was manufactured should be applied and that punitive damages could be awarded under that state’s law because of the truck manufacturer’s knowledge of the problem and failure to correct the problem. The settlement is believed to be one of the largest in the state of Nebraska for the death of a teenager.

* Settled two cases arising out of an industrial accident at a soybean processing plant. One man was killed and another man had his leg traumatically amputated above the knee when a processing machine on which they were working unexpectedly moved. The firm’s attorneys sued the manufacturer of the machine for defective design and the owner of the plant for unsafe work practices. The firm retained a design engineer from the Massachusetts Institute of Technology to testify that the machine was defectively designed and also retained a nationally known safety expert to testify that the plant was not following safe operating practices at the time of the accident. The litigation lasted for more than one year and the cases were settled after a twelve hour mediation.

* Settled personal injury cases for two high school students against the State of Nebraska who were injured in a bus in which they were riding went over a bridge in a construction zone. The firm’s attorneys participated with attorneys for other victims to establish that the construction zone was defectively designed.

* Settled a malpractice action against a dentist for a young woman who was a victim of a misdiagnosis which resulted in the extraction of 13 teeth. The attorneys for the defendant dentist retained two dentists as expert witnesses to testify that the defendant dentist was not negligent in his diagnosis and treatment of the plaintiff. The case was settled shortly after a vigorous cross-examination of one of the defendant’s expert witnesses who eventually conceded, after being given more facts about the client’s case, that the defendant dentist’s diagnosis and treatment did not meet the standard of care.

* Successfully defended a Lincoln business in a breach of contract action in which the Plaintiff, who was represented by a law firm in Houston, Texas, sought damages in excess of $1 billion. The case was tried for two weeks before a federal court judge who found that no contract was established under Nebraska law. The case was eventually appealed to the United States Supreme Court but was not accepted for oral argument.

* Successfully defended a local business in a breach of contract and fraud case in a jury trial in Miami, Florida. The plaintiff was represented by a Miami law firm and was seeking damages in excess of $7 million. The jury returned a verdict for the firm’s client after seven days of trial.

* Recovered royalty payments after a seven day jury trial for the heirs of Dorothy Lynch in a commercial action involving a breach of royalty agreement for Dorothy Lynch Salad Dressing. Experts from Stanford University testified in favor of the defendants, but the attorney for the firm was able to successfully cross-examine the experts leading to a successful jury verdict for the clients.

* Settled for $450,000 a lawsuit against the Missouri Department of Roads and the driver of the vehicle arising out of an accident on I-29 in Missouri where the Missouri Department of Roads violated its own guardrail standards which allowed the vehicle to proceed into the median and eventually causing the vehicle to collide at the bottom of the underpass. The client was a twelve year old girl who suffered serious injuries.

* Successfully settled an age discrimination case four our 63 year old client. Settlement was reached after discovery revealed that the managers who made the decision to terminate the client had made previous discriminatory statements related to the clients age.

* Successfully settled a case in which an employee was terminated once she revealed to her employer that she was pregnant and would need to utilize both her paid and FMLA leave in the future.

* Successfully represented several employers in State and Federal Court in employment discrimination cases, either having the claims dismissed at the summary judgment level or receiving a jury verdict in favor of the employer.

The firm’s trial lawyers have achieved:

* …a settlement for a worker whose foot was crushed by an industrial machine, leading to loss of all five toes. The lawyers inspected the plant, investigated the machine, and found an engineer who concluded that the machine was unsafe and lacked a necessary shut-off switch. The firm sued the machine’s manufacturer on behalf of the injured worker and successfully settled the case after obtaining key documents from the manufacturer and taking depositions from its owner and from key witnesses.

* …a settlement for a truck driver whose foot was crushed by a forklift while he made a warehouse delivery. The injury caused the loss of two toes and the ability to drive eighteen wheelers. The firm’s lawyers inspected the warehouse, found a forklift expert who believed negligence caused the accident, got the necessary medical reports about the injuries and disability, and successfully settled the claim through mediation.

* …a settlement for a woman who was attacked by a mentally ill man. The lawyers tracked down and sued the organization who was supposed to supervise the man. The case was ultimately settled after the firm’s lawyers developed evidence from experts that the defendant organization failed to properly supervise the man, and that the afttack had caused physical and mental injuries to the client.

* …an award of permanent and total workers’ compensation benefits for a construction worker who fell from a bridge and suffered a head injury The lawyers successfully proved in court that the client’s physical and mental injuries were from the fall and that, despite his best efforts, the client can now perform only part-time work.

* …an award of permanent and total workers’ compensation benefits for a construction worker who hurt his lower back on the job. The case has been fought through two trials and one trip to the Nebraska Supreme Court at last count, with the client keeping his benefits despite the efforts of his former employer and its insurance company to end them.

Additional Significant Cases:

* …Obtained a verdict of $1,653,650 in Lancaster County District Court on on behalf of a young man who sustained a traumatic brain injury as a result of a motor vehicle accident which left him with permanent impairments in cognitive functioning, sustained attention, mnestic processes, motivation, selft-starting, and social functioning.

* …Successfully represented 4 plaintiffs who contracted Hepatitis C after a nurse at a Fremont cancer clinic used a common bag of saline on multiple patients while administering chemotherapy resulting in one of the largest outbreaks of Hepatitis C in our nation’s history.

* …After significant litigation, successfully settled a tragic case involving the death of a three-year old boy who died after his breathing tube was negligently removed. The child was admitted to the hospital with a croupy type condition but had to be sedated and intubated to treat an infection. When the breathing tube became plugged with secretions, hospital staff made the fateful decision to pull the tube and then failed to contact a doctor for more than ten minutes causing irreversible brain damage.

* …Settled a complex medical malpractice case involving a trucker who had survived a one-vehicle accident. While on their way home from another call, a rural ambulance service happened upon the scene of the accident and found the trucker laying in a ditch near his overturned rig. The emergency workers stabilized the injured man and transported him to the hospital only to learn that he later died due to a botched intubation when he had to undergo exploratory surgery.

* …Successfully settled the case of a 54 year old college professor who died after his family doctor failed to timely order a transesophogeal echocardiogram. The professor had been feeling ill and suffering recurrent fevers for many months during which time he saw his family doctor on multiple occasions. Each time the doctor treated the symptoms as a cold or the flu rather than ordering a TEE. When the proper test was finally ordered, it revealed “massive vegetation” on the patient’s artificial heart valve.

* …Successfully resolved a medical malpractice claim on behalf of a woman who sustained a catastrophic perforation of her uterine sidewall during a D&C. The client suffered multiple seizures at the clinic due to massive blood loss and later had to undergo a total hysterectomy in order to save her life. The OB/GYN who saved her life said it was the worst damage she had ever seen inflicted during this type of procedure.

* …Settled the case of a totally disabled man who had been an inspiration to all who knew him. Unfortunately, due to the negligence of his caregivers, the client who had almost no ability to move and who could not speak, drowned after being left unattended in a hot tub.

* …Successfully represented the widow of a man who died after undergoing a routine bone marrow biopsy. The gentleman had shown signs of anemia and his doctors decided that a biopsy was in order. The decision was made to take tissue from the patient’s sternum. When the patient asked if there was any chance that the needle might poke his heart, the physician assured him he had never heard of such a thing. Tragically, the surgion punctured the sac around the patient’s heart causing the patient’s death a short time later.

* …Before going to trial in federal court, settled a complex case involving the wrongful deaths of two over-the-road truckers who were killed on Interstate 80 near North Platte. The men were team drivers returning to California to spend the Christmas season with their families when another truck lost control and crossed the median striking their vehicle nearly head-on. After the defense lawyers vigorously disputed liability, the case settled when the president of the trucking company admitted in his depostion that “of course” the accident was their fault.

* …Settled the case of an all-American teenager tragically killed in a rollover accident on a county road in rural Nebraska. The young man was a passenger in a car driven by another teen-age driver who lost control of the car on loose gravel.

* …Successfully settled a products liability case in which our client was injured through the negligent design of a tow-behind water toy. The toy was designed in such a way that the driver of the boat and the person riding in the water toy were unable to see one another and communicate if the rider was in danger.

* …Obtained a favorable jury verdict for the tragic death of a young man who was killed on Highway 34 when a construction vehicle made a left turn in front of his motorcycle. During the case it was discovered that the driver of the construction truck only had vision in one eye and misjudged the distance between his vehicle and the oncoming motorcycle.

* …Obtained a favorable jury verdict for the pain and suffering of a client who sustained a temperomandibular joint injury in a motor vehicle accident despite the defense vigorously disputing whether the TMJ injury was related to the car accident.

* …Obtained a substantial jury verdict for a farmer who sustained a soft tissue injury to his neck when another farmer negligently pulled his tractor from a field driveway onto the county road causing a collision. In instructions to the jury, the court had limited the evidence the jury could consider on lost future earnings. Despite the limiting instruction, the jury generously compensated the plainfiff for his injuries.