Verdicts and Rulings

Jeremy Stephenson, Wilson Elser, along with partners from New York and Atlanta, successfully defended the second-largest self-storage company in the country on appeal before the North Carolina Court of Appeals. The plaintiff, a customer of the client, sued under various commercial tort theories after her units were burglarized. After a winning defense in the jury trial, including a directed verdict on most counts and others prevailing before the jury, the plaintiff appealed and the appellate court issued an Opinion finding no error by the trial court, and securing a complete victory for the client.

Karl F. Edgar, Edgar Law Firm, PLLC, got a defendant's verdict in a wrongful death case. The case arose from a motorcycle and vehicle accident that occurred on May 5, 2020. The motorcyclist died as a result of the injuries sustained when he collided with the defendant's SUV. The estate of the motorcyclist brought suit in Alamance County. The trial was bifurcated and after seven days of trial on the liability issue, the jury returned a verdict of no negligence. Plaintiff's expert was Daren Marceau (Cary, N.C) and defendant's expert was Steve Farlow (Accident Reconstruction Analysis, PLLC - Raleigh, N.C.).

Trey Ferguson won a unanimous ruling from a three-judge panel at the North Carolina Court of Appeals on an appeal from a zoning determination. The case, Town of La Grange v. Lenoir County, et al., No. COA 23-49, was heard on oral argument in November, and the Court issued a published opinion on January 2, 2024. The case involved questions of statutory construction related to the County’s zoning ordinance and a private landowner’s proposed use of its property under the same.

The landowner, Copart of Connecticut Inc., intended to use the property for its business of auctioning damaged and undamaged vehicles for insurance companies, licensed dealers, financial institutions, charities, and municipalities. A Lenoir County zoning official classified the proposed use as “auction sales” under the County’s Zoning Ordinance. The abutting property owner, the Town of LaGrange, appealed that classification to the County Planning Board. The Town argued that the proposed use was more akin to a junkyard than to auction sales, and thus not permitted in the specific zone. After the Planning Board and, subsequently, the Superior Court affirmed the proposed use’s classification as “auction sales,” the Town appealed to the State Court of Appeals.

In defending Lenoir County in the appeal, Trey argued that a strict construction of the County’s zoning ordinance supported the Planning Board’s and Superior Court’s determination that the proposed land use was more like “auction sales” than a junkyard. In affirming the classification, the Court of Appeals renewed its general rule that “the law favors uninhibited free use of private property over governmental restrictions,” and thus required strict construction of local governments’ zoning ordinances in favor of the free use of land.

Trey is an associate attorney as Sumrell Sugg, P.A., in New Bern and is a member of the NCADA’s Government Lawyers steering committee.

Dana Hoffman and Christy Dunn earn dismissal of wrongful death claim against nursing home based on Covid immunity defenses.

The administrator of a decedent’s estate filed a wrongful death lawsuit against a nursing home in North Carolina, after the decedent moved into the facility in March 2020 and died of COVID 19 in April 2020. The complaint alleged that the facility failed to manage the infectious disease, and asserted causes of action for negligence, gross negligence, wrongful death, res ipsa loquitur, and a direct action under the state constitution. The defendants moved to dismiss the complaint under Rules 9(j), 41(b), 12(b)(1), 12(b)(2), and 12(b)(6) of the North Carolina Rules of Civil Procedure, arguing that they are entitled to immunity from civil liability provided by four state statutes and one federal statute. The superior court judge entered an order in February 2023 dismissing all five claims for relief with prejudice. The order dismissed the negligence and wrongful death claims based on Rule 9(j) and three state statutes granting immunity from civil liability during COVID 19, and dismissed the gross negligence, res ipsa loquitur, and direct state constitutional claims under Rule 12(b)(6) for failure to state claims upon which relief may be granted. The plaintiff elected not to appeal the order. The defendants were represented by Dana H. Hoffman and Christy C. Dunn of Young Moore and Henderson, P.A., Raleigh, North Carolina.

Lincoln Derr is pleased to announce that Sara Lincoln, Heather Fuller, and paralegal Erin Alfaro recently secured a defense verdict for a physician, his practice, and a med tech in a 2 ½ week jury trial litigated in Catawba County, North Carolina.

The case was a wrongful death action following the suicide of a detainee in a county jail. The allegations included failure to administer prescribed medication, adequate mental status screening and referral to mental health, and a breach of contract under a third-party beneficiary theory. The trial was bifurcated on negligence and punitive damages. The defense argued that their duty in providing healthcare was met. It took the jury less than two hours to find that our clients were not negligent and did not breach the contract and the issue of punitive damages was never reached.

Josh Wilson and Ben Williams of Gordon & Rees prevailed before the National Labor Relations Board ("NLRB") in a case alleging violations of the employee’s right to engage in “concerted activity” under Section 8(a)(1) of the National Labor Relations Act.
 
The employer is a unionized business in North Carolina that contracts with the Tennessee Valley Authority ("TVA"). The NLRB determined that no causal link existed between the employee’s alleged concerted activity and his termination, and the employer had a legitimate business justification for terminating the employee.

Partners John Nunnally and Ed Coleman of the firm Ragsdale Liggett PLLC in Raleigh, North Carolina, obtained a complete defense verdict in a federal jury trial held in the Western District of North Carolina. The case involved the delivery of frozen pizza dough, sauce, and other products to a well-known pizza restaurant chain by the defendant logistics company. The product was delivered during nonbusiness hours before the plaintiff, a restaurant employee, arrived to open the store. The plaintiff claimed that frozen boxes had been improperly stacked during delivery, causing them to immediately fall on her when she opened the freezer door that morning. No witnesses were present when the plaintiff claimed this incident occurred.

The plaintiff settled her worker’s compensation claim and then pursued a negligence action against the defendant. She alleged numerous injuries but focused on a right ankle injury at trial. She claimed that two surgeries to repair a torn tendon in her right ankle were related to the incident and sued for damages. The defendant’s delivery driver was an extremely effective witness and was able to describe to the jury his delivery methods and how the boxes were properly stacked.

The plaintiff testified at trial and during her cross-examination, the defense focused on her extensive medical history of prior injuries and chronic pain, her gaps in treatment, and her non-compliance with the treating providers’ instructions. The non-compliance was a significant factor in the need for the second surgery.

At trial, the Plaintiff asked the jury to award $500,000 for pain and suffering, medical expenses, lost wages, and introduced evidence as to the worker’s compensation lien amount that would have to be repaid from any judgment. The jury found no negligence and returned a defense verdict.

Kudos to Adam Peoples, Hall Booth & Smith, and Sara Lincoln, Lincoln Derr PLLC, in securing a defense verdict in a very difficult medical malpractice case in Catawba County, NC. The trial was bifurcated on liability and damages, but Plaintiffs forecasted presenting a life care plan of future medical expenses exceeding $2.6M. It took the jury less than an hour to return its unanimous verdict: the defendant doctor was not negligent.

Congratulations to John Spainhour, McAngus Goudelock & Courie LLC, for securing a complete defense verdict for a general contractor client in Haywood County, NC. After eight days of evidence and arguments, the jury only needed 38 minutes to decide in favor of John’s client.

Congratulations again to the team at Lincoln Derr, Sara Lincoln and Scott Addison, with the assistance of paralegal Erin Alfaro, obtained a defense verdict for a physician after a week-long trial in York County, South Carolina. The trial included an affirmative defense of comparative negligence and was bifurcated on negligence and punitive damages. The jury never got to the questions of comparative negligence or punitive damages. It took the jury less than two hours to find the client not negligent.

Ellis & Winters LLP attorneys Leslie Packer, Curtis Shipley, Ashley Brathwaite, Scottie Lee, Steven Scoggan, and Carson Lane recently won summary judgment in a federal case involving a novel issue of take-home asbestos liability under North Carolina law. In McDaniel v. John Crane, Inc., et al., No. 1:19CV359, Judge William L. Osteen, Jr. of the U.S. District Court for the Middle District of North Carolina concluded that an installer and supplier of asbestos-containing insulation products owed no duty of care to the spouse of a non-employee who allegedly brought asbestos fibers home from his workplace. Ellis & Winters represents Covil Corporation, an insulation contractor and distributor.

The plaintiff in McDaniel alleged that asbestos fibers brought home on the clothing of her husband, a utility operator at Duke Power’s Belews Creek Steam Station, had caused her lung cancer. 

The Court first granted Covil’s Daubert motion to exclude the causation opinion of Plaintiff’s insulation expert because it was “unsupported speculation” and not based on sufficient evidence that the plaintiff’s husband was exposed to asbestos-containing products installed or distributed by Covil. Rather, the expert effectively opined only that the husband “had the opportunity to be exposed every day,” which was not the same as “actual exposure.” The Court held that while an expert’s experience and training is useful in interpreting facts, “it is not a substitute for them.”

The Court then held that testimony by the plaintiff’s husband and a coworker failed to provide evidence from which a reasonable jury could conclude that plaintiff’s husband was exposed to Covil-attributable asbestos-containing products with frequency, regularity, and proximity as required by the Lohrmann standard that applies to asbestos-disease claims in North Carolina. Specifically, the Court found that these witnesses were not aware whether insulation they observed contained asbestos and could not place the plaintiff’s husband in areas of the plant where asbestos-containing products attributable to Covil were located. Mere proof that plaintiff’s husband and such products were in the plant at the same time was insufficient. 

Finally, the Court held in the alternative that a manufacturer, supplier, or distributor of an asbestos-containing product owes no duty of care to the spouse or family member of a non-employee. The Court noted that a defendant’s tort liability under North Carolina law is “limited by both foreseeability and a special relationship” with the injured party. As a matter of first impression, it predicted that the North Carolina Supreme Court “would not find that a duty exists between a contractor and a non-employee’s spouse, because that would impose a duty where the contractor does not have control over the non-employee’s spouse.” 

Attorney Scott Addison recently won summary judgment in defense of our client, an orthopedic surgeon, in a case arising out of a nerve injury that occurred during a procedure to shorten a patient’s leg. The patient had previously undergone a total hip replacement by a physician in another state that, unfortunately, resulted in a leg-length discrepancy that caused her significant problems.

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