For his success in the courtroom, Mr. Downing was inducted into the American Board of Trial Advocates, an invitation-only association of trial attorneys.  He is “AV” rated by his fellow attorneys and the judges before whom he practices for possessing the highest legal ability and ethical standards.  He is also a member of the U.S. Supreme Court Bar and a Lifetime Fellow of the Nebraska State Bar Foundation.

For his advocacy in constitutional litigation, Mr. Downing was inducted into the ADF Honor Guard.  Mr. Downing has presented at numerous CLE events and serves the Christian Legal Society by coordinating educational opportunities for Nebraska lawyers on topics ranging from Constitutional Law to Legal Ethics.

Mr. Downing’s work has shaped Nebraska law spawning five law review articles and thousands of citations in secondary sources and subsequent cases.  The law review articles specifically inspired by the legal holdings in his cases include:

• ”Owners and Occupiers of Land Now Owe Those Lawfully on Their Premises a Duty of Reasonable Care Under Heins v. Webster County, 250 neb. 750, 552 N.W. 2d 51 (1996)”, 76 Neb. L. Rev. 184  (1997)

• “Res Ipsa Loquitur and the Great Cattle Caper: Inferred Negligence in Escaped Livestock-Automobile Collisions after Roberts v. Weber & Sons, Co., 248 Neb. 243, 533 N.W.2d 664 (1995)”, 75 Neb. L. Rev. 308 (1996)

• “Small Town Establishment of Religion in ACLU of Nebraska Foundation v. City of Plattsmouth, 419 F.3d 772 (8^th Cir. 2005), 84 Neb. L. Rev. 159 (2006)

• ”The Erosion of Nebraska’s Free Exercise Protection:  In Re Interest of Anaya (Anaya II)”, 276 Neb. 825, 758 N.W.2d 10 (2008), 89 Neb. L. Rev. 997 (2010); and

• “Readdressing Nebraska’s Misinterpreted Conscience Clause”, 97 Neb. L. Rev. 890 (2019) (revisiting the central holding of Anaya II).

For more than thirty years, Mr. Downing has specialized in representing Nebraskans whose constitutional freedoms have been endangered or infringed.

In Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014), Mr. Downing brought a federal civil rights case on behalf of five African-American prison guards who were subjected to a racially hostile work environment and retaliation when they dared to complain. After extensive litigation, the case was dismissed.  Mr. Downing successfully pursued an appeal to the Eighth Circuit who reversed finding that the lower court had utilized a novel–and faulty–standard by looking at the claims of the group “as if there were but a single plaintiff and a single defendant.” After remand, the case settled for more than $775,000.

In Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996) a federal court held for the first time that a student could be exempted from a university’s on-campus housing requirement for religious reasons.  (The Rader decision was recently mentioned by the United States Supreme Court in Fulton v. City of Philadelphia, 141 S.Ct. 1868 (2021)).

In Doe v. School District of Norfolk, 340 F.3d 605 (8th Cir. 2003), the Court ruled that a school board member’s prayer at graduation did not violate the Establishment Clause.

In ACLU Nebraska v. City of Plattsmouth, 419 F.3d.772 (8th Cir. 2005), the Court held that a city’s display of a Ten Commandments monument in a city park was constitutional.

In In re Interest of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008), a case which garnered national attention, the Nebraska Supreme Court found improper a juvenile court’s aggressive exercise of jurisdiction over a newborn whose parents objected to mandatory medical screening on religious grounds. The Supreme Court ruled that the juvenile court’s orders were “a nullity.”

In Dillon v. Hopkins, 4:CV91-3320, Mr. Downing won an injunction on religious liberty and equal protection grounds for Native American inmates desiring to have a religious event 8 hours in duration instead of the restrictive 3-hour time limit imposed by the administration.

In Olmer v. City of Lincoln, 23 F. Supp. 2d 1091 (D. Neb. 1998), Mr. Downing was on a team of lawyers who challenged a restrictive picketing ordinance that was struck down in federal court on First Amendment grounds.

In Conrad v. City of Hastings, Mr. Downing filed suit against a restrictive leafleting ordinance which prohibited distribution of handbills, posters and leaflets without a permit.  After suit was filed, the ordinance was rescinded.

In Wooten, et. al., v. Lancaster County, Mr. Downing successfully represented a group of street preachers who filed a claim after being arrested and a 15 foot-tall cross impounded as evidence.  The ensuing settlement included payment of $500, circulation of a memo on free speech and religious liberty (authored by Mr. Downing) among the sheriff’s department to better educate them on citizen’s rights, and return of the cross to the claimants.

Mr. Downing’s other reported decisions include: Roberts v. Weber and Sons, 248 Neb. 243 (1995) ; Skiles v. Security State Bank, 494 N.W. 2d 355, 1 Neb. App. 360, (1992), , Blue Dane Simmental v. American Simmental Association, et.al., 178 F.3d 1035 (8th Cir. 1999), Unisys Corp. v. Neb. Life and Health Guaranty, 267 Neb. 158, (2004), and Cure v. Pedcor, 265 F.Supp.3d 984 (D. Neb. 2016).

 Mr. Downing is a member of the Nebraska Association of Trial Attorneys and has recovered tens of millions of dollars on behalf of Nebraskans injured through medical malpractice, defective products and the negligence of others.  A sampling of his significant cases include:

*Successfully litigating the case of a young woman who was tragically paralyzed when an inexperienced neurosurgeon (who represented to the patient that the procedure was his “bread and butter”) negligently injured the her spinal cord during surgery.

*Successfully brought a case on behalf of a young woman who was paralyzed and permanently injured when her pain management physician injected her spinal cord during a routine procedure leaving her with no use of her left hand and diminished strength on her left side.

* Successfully prosecuted a products liability case involving a defective gas cap on a mower that resulted in an explosion and burns to more than 70% of our client’s body.  After extensive litigation, the case was resolved for more than two million dollars.

*Successfully prosecuted a federal tort claim for medical malpractice on behalf of a client who suffered an advanced and disabling form of breast cancer due to a clinic not having communicated the troubling results of radiographic imaging.

*Mr. Downing has had the privilege of representing many women injured through abortion malpractice:

* Successfully litigated a medical malpractice claim on behalf of a woman who sustained a catastrophic perforation of her uterine sidewall during a D & C at a Planned Parenthood abortion clinic. 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.

*Successfully resolved a malpractice claim for a young woman who endured a painful and unnecessary D&C as well as complications from an undiagnosed, life-threatening ectopic pregnancy that resulted in emergency surgery and permanent injury.

*Successfully prepared and resolved the malpractice claim of a young mother whose uterus was negligently perforated by an inexperienced resident physician resulting in a post-surgery complications including a life-threatening infection.

*Successfully resolved the claim of a young woman who had to undergo a late term abortion after Planned Parenthood’s doctor failed to properly screen and perform a D&C earlier in the pregnancy.

*Successfully resolved complex injury cases arising from boating injuries, including: a Missouri River boating accident that resulted in permanent injuries and disfigurement (the case settled for more than $500,000); a propellor injury that nearly severed a young man’s arm resulting in a settlement of $500,000; a products liability case in which our client was injured through the negligent design of a tow-behind water toy 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.  (Ultimately, the dangerous product was withdrawn from the market.)

*Achieved a settlement of $600,000 for the wrongful death of a disabled young woman at the Beatrice State Developmental Center.  A state investigation revealed that a cascading series of errors led to her death and the state’s chief medical officer declared that the center was too dangerous for “medically fragile” residents.  The case resulted in substantial improvements in the delivery of care at BSDC.

*Obtained a verdict of $1,653,650 in Lancaster County District Court on behalf of a young man who sustained a traumatic brain injury as a result of a motor vehicle accident that left him with permanent impairments in cognitive functioning, sustained attention, motivation, self-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 the tragic case involving the death of a 3 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.

* Successfully litigated 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 litigated the case of a 54 year-old college professor who died after his family doctor failed to timely order a trans-esophogeal 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 litigated 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 surgeon 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 deposition that “of course” the accident was their fault.

* Successfully litigated 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 the case of a young small-town business owner who was tragically killed when an approaching vehicle crossed the center line at the top of a hill on a country road causing a head-on collision and entrapping our client who succumbed to his injuries while being extracted from his vehicle with the “jaws of life”.

*Successfully litigated and settled that case of a beautiful 14 year-old girl who was thrown from a vehicle when the teenage driver lost control of a farm vehicle on a dirt road.  Despite pleas from the passengers, the driver continued to accelerate until the truck went airborne.

*Successfully litigated and settled the case of a beautiful college student who was tragically paralyzed when the vehicle in which she was a passenger left the highway and veered into a ditch at a high rate of speed.

*Successfully resolved the claim of an outstanding young man who suffered a traumatic brain injury when a fellow hunter negligently shot at a coyote without recognizing that our client was on the other side of the brush. A lone pellet ricocheted through the timber, hit the sideview mirror of the vehicle in which he was riding and entered our client’s temple permanently disabling him.

*Successfully litigated a medical malpractice action for the wrongful death of a young mother who developed foreseeable and treatable complications following the birth of her first child.

*Successfully litigated a malpractice action for a female client who was placed on high doses of NSAIDs by her physician who then failed to vigilantly monitor her condition resulting in irreversible kidney injury and dialysis.

*Obtained a significant settlement through mediation on behalf of a senior citizen whose family physician failed to note a cardiac defect prior to hip replacement surgery leading to a catastrophic stroke and permanent disability.

*Successfully litigated the wrongful death case of a farmer tragically killed on Interstate 29 when the driver of the vehicle in which he was a passenger negligently pulled into the path of an 18-wheeler.

*Successfully resolved the wrongful death case of a farmer who was rear-ended on Highway 77 by a driver operating his vehicle at an excessive rate of speed while high on marijuana.

*Successfully represented 3 passengers in a small plane that crashed due to the negligence of the plane operator in running out of fuel.  Amazingly, there were no fatalities because the plane was equipped with a parachute which allowed the plane to crash land.

*Successfully litigated the case of a 3 year-old who was abducted from an apartment complex and sexually assaulted by another resident. Cure v. Pedcor, 265 F.Supp.3d 984 (D. Neb. 2016).

*Successfully prepared, filed and settled the case of an 18 year-old special needs student who was sexually assaulted at school due to the negligent supervision of school authorities.

*After extensive litigation, obtained a favorable settlement for a young woman who was born with cerebral palsy due to the negligence of her medical providers during the birthing process.

*Litigated and successfully settled a complex negligence case involving a “flying carpet” (a/ka/ a welcome mat) that became airborne in high winds striking our client in the head and causing permanent brain damage.

* Obtained a jury verdict of $175,000 for the pain and suffering of a client who sustained a TMJ injury in a motor vehicle accident despite the defense vigorously disputing whether the injury was related to the car accident. Downing successfully defended the verdict on appeal and was awarded additional attorney’s fees. (Snyder v. Allied Mutual, (1994 WL 271999.))

* 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 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 plaintiff for his injuries.