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.

From the Lincoln Journal Star:

Accident victim still waiting for state to pay claim
BY JoANNE YOUNG / Lincoln Journal Star
Tuesday, Feb 26, 2008 - 09:29:44 am CST

SCHUYLER — Jake Wagner was 16 when he drove through the main intersection in Schuyler nine years ago on a Sunday evening — Valentine’s Day.

He has no memory of it, though, because as he and three friends headed south on that warm, clear night, to Glorimar’s café, a semitrailer truck slammed into the Buick Sentry he was driving, pushing it more than half a block west, leaving him with a critical head injury.

Witnesses said the traffic signal had malfunctioned, giving green lights to both Wagner and the driver of the semi, owned by Metz Baking Co. They said many people had called in complaints about the light malfunctioning for months before the crash.

The state has denied claims filed by Wagner’s Lincoln attorney, Doug Peterson, for years, but last year the state Supreme Court ordered the state to pay Wagner $9.9 million, nearly triple what had originally been ordered by a Colfax County District Court.

The award was among the largest publicly announced awards in the state. Some settled amounts are not disclosed because of confidentially agreements, but it was the largest ever against the state Department of Roads.

Wagner, now 25, still hasn’t seen the money. The Legislature must first approve the claim, which was heard Monday by the Business and Labor Committee. It has not yet acted to send the claim to the full Legislature.

Wagner’s mother, Gail Fickle, said people in Schuyler continue to tell her the light is still malfunctioning.

Mary Jo Hall, spokeswoman for the Department of Roads, said the Schuyler signal lights have become somewhat of a community legend, that the department’s research shows the lights work—they always have.

Fickle begs to differ.

The telephone rang shortly after 10 p.m. that night at the Fickle home. Gail and her husband had just returned from a Valentine dinner in Columbus and he reached for the phone.

“I said, ‘That’s Jake. Tell him no. He has to get home,’” she said.

But the caller wasn’t Jake. It was the call no parent ever wants to get — someone telling a mother to come immediately to the hospital.

They arrived minutes before he did, then heard the whoosh of the emergency room doors as the gurney pushed through and Fickle saw her son, lying so still, his arm flopping over the side.

“He looked like he was gone,” she said. “I said ‘Oh, dear God,’ and slid down the wall.”

A helicopter picked him up a few minutes later to take him to an Omaha hospital. His mother was unsure if he would make it there alive. He did, and he lived to the next morning, and another day and another.

He was semiconscious several months, then spent many more months in a rehabilitation hospital. Eventually, he was moved to another rehabilitation facility in Sheldon, Iowa, where he stayed for six years, his care paid for by Medicaid.

But last August, he was sent home, and his mother was told she needed to find a place in Nebraska to care for Jake. The family tried several nursing homes, but they weren’t the right fit for a 25-year-old who could get around in a wheelchair and needed the company of others his age as much as he needed daily care.

He’s been at home for more than a month. His mom takes care of him, but must work, too, and arrange for people to come and check on him hourly. He’s 6 feet tall and weighs over 185 pounds, and it’s difficult to help move him around. She’s fallen with him at least once.

Wagner still has trouble with speech, balance, feeding himself. He has only some use of his left arm and no use of the right.

He loves the outdoors, used to go fishing, hunting, trapping, skiing. Now he goes out in his wheelchair when the weather is nice. And he rides along when his stepdad goes hunting and trapping. Otherwise, his entertainment is the television.

“It’s not the best setup in the world, but we make do with what we can,” his mother said. “He needs to be somewhere that has activities for a young person. … Hopefully, this money should be a tremendous help to make his quality of life better.”

Fickle said she’s still concerned about the lights where Nebraska 15 intersects with 16th Street, which is also U.S. 30, in the middle of town.

Even though the state maintained conflicting green lights could not occur, attorney Peterson found witnesses who said they had seen it. And one man who had been sitting in the convenience store on the northeast corner of the intersection testified he saw the green lights at the time of the crash.

Dan Waddle, state traffic engineer, said every time the state has responded to a complaint, no problem was observed. The signals also test correctly.

The signals at the Schuyler intersection were changed a few years ago as part of a scheduled replacement and upgrade, Waddle said.

If the signal’s conflict monitor picks up a potential problem, he said, the lights go immediately into flashing red mode, or flashing red in one direction and flashing yellow in the other.

Conflict monitors are tested annually, he said.

Some people have questioned whether the state has a good process for handling traffic light complaints, since many complaints were said to have been reported before the accident.

Waddle said the state has a system for documenting complaints that come in to district sites and maintenance yards. And roads employees keep track of work done on traffic signal boxes by marking the inside of cabinet doors.

The state has plans to create an 800 number for traffic signal complaints. He wasn’t specific about when the number would be operational.

“It should be soon,” he said.

From the Omaha World Herald:

State agrees to pay $9.9 million to victim of Schuyler car crash
BY MARTHA STODDARD
WORLD-HERALD BUREAU

LINCOLN — Jacob Wagner of Schuyler, Neb., will receive $9.9 million from the State of Nebraska for injuries suffered in a crash blamed on a malfunctioning traffic signal.

The amount is part of a settlement reached between the state and Wagner’s mother, Gail Fickle. It was announced Thursday by Fickle’s attorney, Doug Peterson of Lincoln.

The settlement appears to be a record for an injury lawsuit against the state, said attorney Peterson and the state’s risk manager, Laura Peterson.

The state paid $3.4 million in connection with a 2001 Seward school bus crash on West Dodge Road that killed four people and injured 27. With payouts from all parties, including insurance companies, the total in that case was more than $12 million.

The state agreed to the Wagner settlement after losing twice before the Nebraska Supreme Court.

The high court ruled July 20 that the Department of Roads was at fault for not fixing the traffic light despite repeated complaints that it displayed green in several directions at the same time.

In that ruling, the court said Wagner may need more than $9 million to compensate him and his mother for medical bills, future lost earnings and pain and suffering. In September, the court refused the state’s motion for a rehearing in the matter.

Officials at the Roads Department did not return calls seeking comment on whether they have changed policies and procedures in response to the accident.

Wagner suffered severe brain damage in the Feb. 14, 1999, crash. Even after years of therapy, he is unable to walk. He has no use of one arm and limited use of the other. He has double vision and difficulty speaking.

Witnesses said the traffic light at U.S. Highway 30 and Nebraska Highway 15 in Schuyler was displaying green to southbound and westbound traffic at the time of the crash.

Wagner, then 16, was driving his car south when he was hit by a westbound semitrailer truck owned by Metz Baking Co. Three passengers in Wagner’s vehicle were not seriously injured.

The family already has settled with the City of Schuyler and with the trucking company, bringing the total settlement to more than $10 million. Peterson said confidentiality agreements bar him from revealing the exact figure.

Fickle said Thursday that she is trying to find a place in Nebraska where Wagner can live and that meets his medical and rehabilitation needs. She said her son is excited at the prospect of being closer to family and friends.

Wagner had been living at Village Northwest Unlimited in Sheldon, Iowa. He is staying temporarily at a nursing home in Sargent, Neb.

Earlier, she said that the money from the state would give her son more options in life, including getting medical care that Medicaid might not pay for and a new wheelchair van for the family.

It also might buy a specially modified four-wheeler that would allow Wagner to get back outdoors. Before the accident, Wagner had loved hunting, fishing and being outdoors.

Fickle said she appreciated the people who were willing to come forward and testify about the malfunctioning lights.

According to evidence at the trial, three Roads Department employees said they had been told of the problem although they found nothing wrong when they checked the signal.

Four members of the public said they noticed the problem in September and October 1998 and reported it to the state. A Roads Department employee confirmed receiving two of those complaints.

Employee groups are starting to fight back. In Lincoln County, for example, Keating, O’Gara attorney Gary Young helped Fraternal Order of Police Lodge 26 in North Platte stop a recent attempt by the County Sheriff to ignore the Bargaining Agreement and negotiate directly with a favorite employee for a special wage and benefit side deal, meant for him only.

Faced with the reality that the actions of the Sheriff were an unfair labor practice, the Lincoln County Commissioners rethought the plan:

Wages scaled back
By Mark Young , The North Platte Telegraph
01/15/2008

“It’s quite a slap in the face from this board,” said Lt. Dave Williams, jail administrator for the Lincoln County Sheriff’s Department, referring to his wage being scaled back after union representatives from the Fraternal Order of Police filed a complaint against the county.

According to Roland Kramer, state trustee for FOP, complaints were lodged for the way Lincoln County negotiated Williams’ contract when FOP is responsible for negotiating all salary wages for every officer, with the exception of sheriff and chief deputy. All other department officers fall under the FOP negotiated contract.

Attorneys for FOP argued that Williams’ contract with Lincoln County was not negotiated by FOP and that he was hired out of classification. Williams was hired under a Step 3 pay scale, but under a road patrol scale, not corrections.

FOP legal council has labeled it an unfair labor practice and has demanded that Williams’ current salary be rescinded.

“FOP has now been told that (the county) is willing to negotiate, but has refused to rescind its actions,” said legal council for FOP Lodge 26, in a written letter to the Lincoln County Board of Commissioners.

The letter further accused the county of continuing to perpetrate this action and while litigation was not wished, it would become necessary to file litigation against the county if it did not rescind Williams’ salary. Last week, Lincoln County Sheriff Jerome Kramer credited Williams with saving the county up to $15,000 a month in medical expenses alone with his administrative efforts.

Williams expressed disappointment with the commissioners’ actions despite it appearing to be a case of hands tied on the part of the commissioners.

“It’s my opinion we are hamstrung unless we are willing to go to litigation and personally I think it’s litigation that we can’t win,” said Commissioner Joe Hewgley.

Williams was nonetheless disappointed not only for the action, but indicated that the proposed negotiations that were expected to take place this week to resolve the issue apparently never took place.

“It was my understanding at last week’s meeting that the union and the board were going to negotiate this matter,” said Williams. “I’m disappointed and it was my hopes that this board would be behind that.”

Hewgley said he, too, was disappointed, but that it appeared the board had no legal recourse. Williams, however, feels as though he may have some and informed the board that he would be contacting his own attorney and, “will proceed from there.”

Ultimately, the commissioners were able to hire Williams under a Step 4 pay scale for a correctional lieutenant, but Williams said it was still a drastic pay cut that he could not afford to take.

Roland Kramer was asked by County Chairman Duane Deterding if what happened here was going to be satisfactory to the FOP union.

“I’m not sure where you are going with that, but what happened clearly fits the demands,” he said. “All I can do is report back to the executive board and let them know what happened here today.”

The decision by the commissioners apparently eliminated any need for further negotiation on behalf of an individual, but the issue can be brought back up when the county negotiates the FOP contract in September. Legal counsel for FOP indicated in its letter that any new negotiations on behalf of Williams would require new negotiations for all employees, not just one.

Visibly upset, Hewgley assured Williams, “You are not the only one disappointed. . . .”

State rejects blame for stoplight problem
BY MARTHA STODDARD
WORLD-HERALD BUREAU

LINCOLN — The State Roads Department has changed nothing in its procedures for dealing with traffic signal problems since a malfunctioning signal cost a Schuyler youth his ability to walk, use both arms, see clearly and live independently.

The accident also is costing the state $9.9 million, a record amount for an injury lawsuit in Nebraska. The settlement was announced last week.

Mary Jo Hall, spokeswoman for the Nebraska Department of Roads, said roads officials continue to believe they did everything they could to prevent the Valentine’s Day 1999 accident.

“We stand by our safety methods, our procedures, and always ask that people drive carefully,” Hall said.

While the Roads Department says it did nothing wrong, two state lawmakers question the department’s response. The attorney for the victim is contending that the state is not following nationally accepted protocols.

In July, the Nebraska Supreme Court ruled that the Roads Department was at fault for not fixing the traffic light at the intersection of U.S. Highway 30 and Nebraska Highway 15 in Schuyler, despite repeated complaints that it flashed green in conflicting directions at the same time.

Jacob Wagner, then 16, was driving his car south when a westbound semitrailer truck owned by Metz Baking Co. hit him. Witnesses said the light was displaying green to both southbound and westbound traffic when the crash occurred.

After losing before the Supreme Court, the state settled with Wagner and his mother, Gail Fickle, on compensation for Wagner’s injuries.

The $9.9 million settlement will come out of the Roads Department’s state funds, which come from fuel taxes, sales taxes on motor vehicles and motor vehicle registration fees.

Wagner suffered severe brain damage. After years of therapy, he remains unable to walk. He has no use of one arm and limited use of the other. He has double vision and difficulty speaking.

State Sen. Arnie Stuthman of Platte Center, vice chairman of the Legislature’s Transportation and Telecommunications Committee, said the Roads Department’s failure to change procedures concerns him.

After getting multiple reports of problems, the department should have done more to find out why there was a malfunction in the traffic light, he said.

“In my opinion, the state should make sure that they (the lights) work and really monitor them,” Stuthman said.

Another committee member, Sen. Dwite Pedersen of Omaha, said the Roads Department should be looking into what went wrong and who dropped the ball. Ultimately, he said, the responsibility lies with the Governor’s Office, which oversees the department.

Hall said that because the department believes there was no wrongdoing on its part, no disciplinary action was taken against any employee.

Jen Rae Hein, a spokeswoman for Gov. Dave Heineman, offered no additional comments to those from the roads officials.

She referred questions to state Risk Manager Laura Peterson, who said: “I think we would categorize this as an extraordinarily unfortunate accident, but not a failure of the system.”

Sen. Deb Fischer of Valentine, chairwoman of the Transportation Committee, said she doesn’t know the specifics of the Wagner case but her experience has been that the Roads Department is responsive to citizens’ concerns.

Wagner’s family also settled with the City of Schuyler and with the trucking company, bringing the total settlement to more than $10 million. Lincoln attorney Doug Peterson said confidentiality agreements bar him from revealing the exact figure.

The $9.9 million portion appears to be a record for an injury lawsuit against the state, said both Doug Peterson and Laura Peterson, who are not related.

State officials agreed to the settlement after the Nebraska Supreme Court refused the state’s motion for a rehearing in the case.

In the trial, four members of the public said they noticed the malfunctioning light in 1998 and 1999 and reported it to the state. A Roads Department employee confirmed receiving two of those complaints.

Department employees said they found nothing wrong when they observed the signal. The department also presented evidence that workers had corrected other problems with the signal during the six months before the accident.

Wagner’s attorney said the Roads Department replaced the signal cabinet the year following the accident, but there had been at least one complaint about conflicting green lights since then.

Kevin Domogalla, operations and maintenance manager for the Roads Department district that includes Schuyler, said he couldn’t recall any reports of problems with the light during the year and a half he has held the job.

Wagner’s attorney said his clients had hoped the case would prompt state officials to change how they respond to reports of highway problems.

Doug Peterson said national standards on dealing with traffic light issues call for states to have a central number for people to report problems and for collecting detailed information from those people.

The standards also call for a signal technician to respond and open up the traffic-signal cabinet for all calls of conflicting green lights.

“They are not following industry standards,” Doug Peterson said. “It would seem that, after an accident this serious, to choose to operate in the same way is shocking.”

Hall said safety is a top priority for the department and reports of problems are always checked out but, in this case, those checks never revealed a malfunction.

“We at the Department of Roads sympathize with the Fickle family,” she said. “We hope the settlement proceeds will enable Jacob to receive the medical care that he needs.”

Bacon and Ducote’s clients are a young girl and her mother who live in Lincoln, Nebraska. The lawsuit they have filed alleges the defendant, the girl’s father and a resident of Canada, used his court-ordered visitation rights as an opportunity to take the girl to Canada where he is alleged to have committed repeated acts of sexual and physical abuse. The suit sought damages for the emotional and physical harm the girl has suffered. The lower court ruled the defendant did not have a significant enough connection with Nebraska to permit a Nebraska court to hear the case.

In today’s opinion reversing the lower court’s decision, the Nebraska Supreme Court ruled “one who removes a minor child from her Nebraska home under the guise of exercising a visitation right in another jurisdiction, and then intentionally subjects the child to harm before returning her to this state, could reasonably expect to be haled into a Nebraska court to answer for such conduct in a civil action brought on behalf of the child.”

The decision, which appears to be one of first impression in the nation, means a parent who may be engaging in abuse can be forced to stand trial in the child’s home state in a civil action for damages, rather than that of the abusing parent.

From the Omaha World Herald:

Court allows suit against Canadian man accused of child abuse
BY MARTHA STODDARD
WORLD-HERALD STAFF WRITER

LINCOLN - A Canadian man may be sued in Nebraska for allegedly abusing his daughter, a Lincoln resident, during visitation, the Nebraska Supreme Court ruled today.

The decision is the latest action in a long-running custody dispute between a Lincoln mother and the British Columbia man over their 9-year-old daughter.

In the current case, the Supreme Court said Nebraska courts do have jurisdiction, even though the father’s only connection to the state has been traveling here to pick up his daughter for visits.

Exercising visitation rights ordinarily would not be enough to give Nebraska jurisdiction, the court ruled. However, the court said the alleged misuse of visitation rights to abuse a child changes the equation and gives Nebraska jurisdiction.

The Supreme Court sent the case back to Lancaster County District Court for proceedings on the allegations.

Rush Limbaugh featured the Anaya case on his October 30, 2007 morning update.

Rush’s Morning Update: Seized!
October 30, 2007

Six weeks ago, a Nebraska couple became first-time parents. However, their religious beliefs ran afoul of a Nebraska law requiring all newborn infants to receive a mandatory blood test to screen for several diseases. They refused the test. So sheriff’s deputies seized the newborn, allowed health workers to draw and screen the blood — then placed the infant into foster care for almost a week, waiting for the results.

According to a Department of Health and Human Services spokes-babe, this was the first time in Nebraska that an infant has been seized. While other states have similar laws on the books, four states — South Dakota, Michigan, Montana, and Nebraska — don’t offer religious exemptions.

The baby tested okay, and is now back home with the parents. But the parents’ attorney, Jeff Downing, says it’s “a classic case of the government overreaching and violating a family’s constitutional rights.” Although the family isn’t seeking damages — they want to ensure this won’t happen again.

Put aside for the moment whether you agree or disagree with the parents on blood tests. What oughta chill you to the bone is what this incident represents. If government officials won’t hesitate to seize a newborn — imagine what they’ll do with you … should you make a decision they don’t like.

The more power you cede to the government over your health care, the less freedom you and your family have — over your own health, and your own life.

Keating, O’Gara’s Jeff Downing, attorney for the Anaya family, was then interviewed in depth by Rush during the second hour of his program:

RUSH: To the phones, Lincoln, Nebraska. Jeff, thanks for the call, sir. It’s nice to have you here.

DOWNING: Rush, Cornhusker dittos from the reddest of the red states.

RUSH: Thank you, sir.

DOWNING: It just so happens, Rush, that I heard the Morning Update this morning, and it’s one of my cases that you had an outstanding commentary on.

RUSH: Thank you, sir.

DOWNING: Well, it regards the Nebraska Newborn Screening Program, one of our Nanny State provisions in the law which requires that babies have a heel stick, and five drops of blood are put on some paper, and then the state screens for one of eight inherited metabolic genetic disorders.

RUSH: Such as…?

DOWNING: Such as things like a PKU, cystic fibrosis, hemoglobinopathy, like sickle cell diseases, and so on. These are things which are inherited. They’re incredibly rare, usually one in 10,000, one in 30,000, but nonetheless, our state — along with most other states — have these mandated screening programs. Unfortunately, Nebraska doesn’t have an opt-out provision, and so I, unfortunately, had some clients who, in declining doing the newborn screening after a home birth, were the victim of the Nanny State run amok.

RUSH: Yeah, let me briefly tell the story here because who we’re talking to, you’re Jeff Downing, correct?

DOWNING: Correct.

RUSH: You’re the parents’ attorney.

DOWNING: That’s right.

RUSH: The parents’ — I guess it’s for religious reasons?

DOWNING: Yeah, exactly.

RUSH: Decided that they didn’t want the screening done on their child, and so the state came in and took the kid.

DOWNING: Exactly.

RUSH: The state came in, took the child and tested anyway and put it in foster care, an infant, for a week!
(more…)

]]> http://www.nebraskainjurylawreport.com/2007/10/30/anaya-case-featured-on-rush-limbaugh/feed/ http://www.nebraskainjurylawreport.com/2007/10/30/anaya-case-makes-national-and-international-headlines/ http://www.nebraskainjurylawreport.com/2007/10/30/anaya-case-makes-national-and-international-headlines/#comments Wed, 31 Oct 2007 02:49:41 +0000 Nebraska Injury Law Report http://www.nebraskainjurylawreport.com/2007/10/30/anaya-case-makes-national-and-international-headlines/ Media outlets across the U.S., Canada, and the UK are covering the story of Baby Joel Anaya who was seized from his nursing mother’s arms due to the family’s objections to Nebraska’s Newborn Screening program.

ABC News

Forbes

The Los Angeles Times

The Philadelphia Inquirer

The Miami Herald

Canadian television (CTV)

Canadian Newspapers (Ottawa Recorder)

United Kingdom’s The Guardian

]]> http://www.nebraskainjurylawreport.com/2007/10/30/anaya-case-makes-national-and-international-headlines/feed/ http://www.nebraskainjurylawreport.com/2007/10/29/in-the-news-con-keating-and-gary-nedved-selected-as-great-plains-super-lawyers/ http://www.nebraskainjurylawreport.com/2007/10/29/in-the-news-con-keating-and-gary-nedved-selected-as-great-plains-super-lawyers/#comments Mon, 29 Oct 2007 20:10:33 +0000 Nebraska Injury Law Report http://www.nebraskainjurylawreport.com/2007/10/29/in-the-news-con-keating-and-gary-nedved-selected-as-great-plains-super-lawyers/

Con M. Keating and Gary J. Nedved Named Super Lawyers**

Con M. Keating and Gary J. Nedved have been listed in the Great Plains Super Lawyers 2007®.  Super Lawyers recognizes outstanding lawyers from more than 60 practice areas who have attained a high degree of peer recognition and professional achievement. Only the top 5% of attorneys in each state are identified, as chosen by their peers and through the independent research of Law & Politics.

Con Keating was selected in the “Alternative Dispute Resolution” category for his outstanding work in the areas of mediation and arbitration. After trying cases on behalf of plaintiffs and the defense for 30 years, Con is now one of the most seasoned and respected mediators in Nebraska. 

Gary Nedved was selected as a Super Lawyer in the “Plaintiff Personal Injury” category. Mr. Nedved has tried more than 100 jury trials and helped hundreds of injured people find justice. As a result of his vast trial experience, Gary has been inducted into a number of prestigous organizations including the American College of Trial Attorneys and the American Board of Trial Advocates.

The objective of Super Lawyers 2007®is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource to assist attorneys and sophisticated consumers in the search for legal counsel.

Super Lawyers are evaluated on 12 indicators of peer recognition and professional achievement. Lawyers are not allowed to pay a fee to be listed.

**Disclaimer: the designation of “Super Lawyer” is not meant to be a representation of ability nor a guarantor of results. This website is an advertisement of Keating, O’Gara, Nedved & Peter, P.C., L.L.O.

]]> http://www.nebraskainjurylawreport.com/2007/10/29/in-the-news-con-keating-and-gary-nedved-selected-as-great-plains-super-lawyers/feed/ http://www.nebraskainjurylawreport.com/2007/10/26/editorial-city-foul-up-on-flood-plain-is-inexcusable/ http://www.nebraskainjurylawreport.com/2007/10/26/editorial-city-foul-up-on-flood-plain-is-inexcusable/#comments Fri, 26 Oct 2007 20:40:16 +0000 Nebraska Injury Law Report http://www.nebraskainjurylawreport.com/2007/10/26/editorial-city-foul-up-on-flood-plain-is-inexcusable/ The Lincoln Journal Star has editorialized on Keating O’Gara’s most recent victory against the City of Lincoln on behalf of homeowners who, due to the city’s negligence, built homes in a flood plain.

From the October 26th Lincoln Journal Star editorial page:

City foul-up on flood plain is inexcusable
Friday, Oct 26, 2007 - 12:13:51 am CDT

The case of the Lincoln homeowners who unknowingly built in a flood plain is alarming.

The findings in the case erode public confidence in the basic competence of Lincoln city government.

As disclosed in court, the homeowners in the Cardwell Woods subdivision relied on information supplied by city officials that their lots were above the flood plain.

It turned out that city officials had misplaced a flood plain map, according to court testimony. “… no one in the Building and Safety Department has been able to explain where it went or why it was removed,” wrote Lancaster County District Judge Steven Burns.

Burns ruled that the city was negligent for not accurately informing homeowners about the flood plain when building permits were issued.

A two-day trial is set for January to determine monetary damages. They could run into millions.

Any homeowner can easily empathize with Troy Stonacek, who learned in May 2005 that the lowest floor of his home was seven feet below the flood plain. Only the top floor and the garage were above it. “I was furious,” Stonacek said.

In granting the building permits, officials in city government’s Building and Safety Department used an old Federal Emergency Mangement Agency map. They should have used a state Natural Resources study of the area that was completed and submitted to the city in January 1997.

The new map showed a flood plain elevation seven feet higher than the old map.

Its accuracy was demonstrated in May, when a downpour left four inches of water in homeowner George Bristol’s basement and a pond more than three feet deep lapping at the patio door.

The city mounted a defense against the lawsuit filed by the unhappy homeowners but lost in what appears to be an open-and-shut case.

Now the city should let the public know what steps it has taken to avoid repeating this dreadful error. An elementary mistake like this should never happen again.

]]> http://www.nebraskainjurylawreport.com/2007/10/26/editorial-city-foul-up-on-flood-plain-is-inexcusable/feed/ http://www.nebraskainjurylawreport.com/2007/10/26/update-keating-ogara-files-federal-lawsuit-for-denial-of-due-process-in-newborn-screening-case/ http://www.nebraskainjurylawreport.com/2007/10/26/update-keating-ogara-files-federal-lawsuit-for-denial-of-due-process-in-newborn-screening-case/#comments Fri, 26 Oct 2007 20:12:19 +0000 Nebraska Injury Law Report http://www.nebraskainjurylawreport.com/2007/10/26/update-keating-ogara-files-federal-lawsuit-for-denial-of-due-process-in-newborn-screening-case/

Keating, O’Gara has filed a federal civil rights lawsuit (viewable here: amended-complaint.pdf) to vindicate the rights of the Anaya family of Omaha.

On October 11, 2007 without warning or notice, the State of Nebraska removed baby Joel Anaya, then just 5 weeks and 4 days old, from the family home even though there were no emergent medical circumstances.

From The Guardian:

Suit Says Baby’s Seizure Violated Rights
By ANNA JO BRATTON
Associated Press Writer

OMAHA, Neb. (AP) - A Nebraska couple sued state health officials Thursday, arguing their rights were violated when their newborn baby was seized by sheriff’s deputies so a mandatory blood test could be performed.

Joel Anaya, who was almost 6 weeks old, was kept in foster care for six days until the tests came back negative earlier this month.

His parents, Mary and Josue Anaya, believe that the Bible instructs against deliberately drawing blood and that ignoring that directive may shorten a person’s life. State health officials “conspired to deny the Anayas their rights of due process, and to seize and test baby Joel without notice or a hearing in district court,” according to the filed in U.S. District Court in Omaha.

“This is a classic case of the government overreaching and violating a family’s constitutional rights,” said Jeff Downing, the couple’s attorney.

The Anaya family is not seeking damages, but they want to ensure that this won’t happen again if they have more children.

It’s the first time in Nebraska a child was taken from parents to draw the drops of blood from the baby’s heel for the screening, said Marla Augustine, spokeswoman for the state Department of Health and Human Services. Nebraska is one of four states - South Dakota, Michigan and Montana are the others - that doesn’t offer a religious exemption for parents who don’t want the test performed.

Health officials say the newborn screening program is one of the state’s most cost-effective public health programs. The newborn blood test - usually performed within 48 hours of birth - screens for dozens of rare diseases, some of which can cause severe mental retardation or death if left undetected.

Last year, out of 26,819 babies tested, 537 tested positive for one of the dozens of diseases, and 43 of those results were confirmed, according to the state’s Newborn Screening Program.

Augustine said Thursday that state officials had not seen the lawsuit and would have no comment.

The decision to seize Joel Anaya and test him was made by Douglas County prosecutors who have said they only did what was necessary to protect the baby’s health.

When the Anayas’ daughter Rosa was born in 2003, a hearing was held in Douglas County District Court and the couple voiced their objections. The state Supreme Court eventually turned down their arguments, but Rosa never was tested.

This time, the county wanted to make sure the testing was completed, said Nicole Brundo Goaley, a deputy Douglas County Attorney. So the county got an order from a juvenile court judge to test the baby.

Sheriff’s deputies came Oct. 11 to take the child, who remained in foster care until tests came back Oct. 16. During that period, social workers let Mary Anaya nurse her son several times a day.

Scott Voorhees of KFAB Radio interviews Mary Anaya and attorney Jeff Downing here.

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