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Serious Injuries Lead to Domina Law Group pc llo Attack on Constitutionality of Damages Cap


Domina Law Group pc llo’s Lincoln, Nebraska client decided her successful high school education would be followed by college years in her home town. The young lady, literally the queen of her prom at one of Lincoln’s public high schools, was crossing the street with friends, in a residential area, well dressed and conducting herself appropriately, when a no lights, no sirens, high speed police cruiser responding, silently, to a domestic call, struck her. Since then, for more than a year the young lady has been cast into a persistent vegetative state.

Medical bills will easily exceed $1 million. But Nebraska’s Political Subdivision Tort Claims Act (PSTCA) caps damages at $1 million. The statute also denies trial by jury.

Domina Law Group pc llo’s extensive research, and careful analysis, presents an attack on the damages cap, and the prohibition against trial by jury. The firm’s brief, presenting arguments on both bases, was submitted to the District Court in Lancaster County January 2. Arguments in the case, presented January 11, are an expected first step in “a battle that is likely to take us through the appellate judiciary,” David Domina said. “We know we are asking the court to declare parts of Nebraska’s law that have long histories, unconstitutional. But our arguments are rooted in longer, and deeper, legal history, and are coupled with recent, important announcements of the United States Supreme Court.

In part, DLGpc’s arguments against the PSTCA’s damages cap is based on the federal constitution’s commerce clause. “The commerce clause prohibits discrimination in favor of the local businesses or governments, and the expense of foreign ones,” Domina said. We think the $1 million damages cap, and its single limitation provision, are invalid.

The firm’s brief attacking the state’s statutory prohibition against trial by jury turns on a unique combination of features in Nebraska history. Nebraska is the only state whose statehood was enabled during the Civil War. President Lincoln signed the state’s enabling act April 19, 1864. Unlike other enabling acts, Nebraska’s refers to the Declaration of Independence, and requires that the state’s constitution and laws “not be repugnant” to the Declaration’s principles. It also requires consistency with the federal constitution.

“Our legal research establishes that the right to trial by jury existed at common law. And it existed against the Crown, except that foreigners could not sue the King or Queen,” Domina said. This feature is important to U.S. Constitution’s Seventh Amendment history – guaranteeing the right to trial by jury. It is equally important in Nebraska’s constitutional history.

“We do not think the right to trial by jury can be denied in cases against the state if the state’s sovereign immunity is waived.”

Domina Law Group pc llo is a firm of trial lawyers. We specialize in complex litigation on a national basis. Our lawyers are ethical, aggressive, and committed to providing spirit and vitality to the judicial system and our client’s legal rights.

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