NC Association of Defense Attorneys Verdicts and Rulings

Successful Verdict! Municipal Negligence Action

Lynette Pitt — Tue, 27 Jan 2026 19:30:00 GMT

Sumrell Sugg attorney, Trey Ferguson, successfully defended the City of Wilmington in a negligence action arising from an alleged sidewalk defect involving an ADA curb ramp. The North Carolina Court of Appeals affirmed summary judgment in the City’s favor in an unpublished decision, holding that a minor elevation differential in the sidewalk constituted a trivial defect as a matter of law and that the City lacked actual or constructive notice of any dangerous condition. The Court further emphasized regular municipal inspection practices and the absence of prior complaints, concluding that the City did not breach its statutory duty to maintain sidewalks in proper condition.

Jury trial and verdict in Edgecombe County

Lynette Pitt — Mon, 25 Aug 2025 13:30:00 GMT

Congratulations to Nick Ellis on a successful verdict in Edgecombe County Superior Court of May 2025.

Case: Cruz v. Pitt

Defendant, a farmer in Edgecombe County, had an equipment shed that had been damaged by time and a recent hurricane. He decided to have the shed demolished and hired a local crew leader to take down the shed. The local crew leader hired the plaintiff as part of a four-person crew. Several parts of the tin roof had been blown off during the hurricane and the building was old and some wood was previously damaged.

Plaintiff worked on the roof of the shed for several hours and towards the end of the day when all of the tin roof had been removed, he fell 15’ to the ground. He fractured his pelvis, had surgery, and was hospitalized for a week.

Defendant contended the condition of the roof was open and obvious and so he was not negligent. And, Plaintiff admitted he was not using fall protection, that if he had he wouldn’t have struck the ground, that he smoke marijuana the night before and had balance issues cause by a prior injury, which all added up to a strong case on contributory negligence.

Jury verdict of “no negligence” in 28 minutes.

Plaintiff’s only demand was $750,000.

Defense Verdict Obtained in Trucking Case

Lynette Pitt — Mon, 16 Jun 2025 17:42:43 GMT

Kudos to Elizabeth Overmann and Ed Coleman for securing a defense verdict in Cumberland County, NC (June 2025), following a week of jury deliberations. They represented a tractor trailer driver who was struck from behind at a high velocity by another tractor trailer as he was re-entering the roadway. Following a two-part trial, the jury determined that the negligence of the Plaintiff played a role in causing the collision. The Plaintiff had been pursuing damages that exceeded the policy limits.

Defense Verdict In Wake County Superior Court

Lynette Pitt — Fri, 28 Feb 2025 16:00:00 GMT

Jodee Sparkman Larcade with Sparkman Larcade PLLC secured a defense verdict in Wake County Superior Court. The case revolved around the underage purchase and consumption of alcohol by a minor resulting in the death of the Plaintiff’s son. Plaintiff was seeking $6 million compensatory damages related to negligence and civil conspiracy along with punitive damages. The jury returned a verdict of “no” on both liability issues.

Defense Verdict for National Self-Storage Company at NC Court of Appeals

Lynette Pitt — Tue, 13 Feb 2024 18:00:00 GMT

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.

Defense Win! Wrongful Death

Lynette Pitt — Thu, 01 Feb 2024 19:49:09 GMT

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.).

Unanimous Ruling on Zoning Determination at NC Court of Appeals

Lynette Pitt — Fri, 19 Jan 2024 15:00:00 GMT

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.

Nursing Home Covid Immunity Defenses Win

Lynette Pitt — Fri, 21 Jul 2023 18:39:31 GMT

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.

Medical Malpractice Defense Verdict for Lincoln Derr

Wed, 22 Feb 2023 18:24:02 GMT

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.

Gordon & Rees Prevails on Behalf of Employer Before National Labor Relations Board

Wed, 22 Feb 2023 18:17:00 GMT

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.

Nunnally & Coleman Receive Successful Verdict in Federal Jury Trial

Lynette Pitt — Fri, 02 Dec 2022 19:53:52 GMT

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.

Successful Verdicts for Members in Medical Malpractice and Construction

Lynette Pitt — Tue, 24 May 2022 14:13:34 GMT

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 Secures Win in MDNC Case Involving Take-home Asbestos Exposure

Thu, 29 Apr 2021 18:18:51 GMT

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.”

Medical Malpractice action against Lincoln Derr client dismissed

Wed, 28 Oct 2020 17:58:33 GMT

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.

Good Defense Decision from the Court of Appeals in Woodson Claim

Thu, 30 Jul 2020 17:22:08 GMT

The Court of Appeals handed down a unanimous decision in favor of defendants in a purported Woodson claim July 21, 2020. Below is a quick synopsis of the case. Kudos to Heather Connor and Christopher Campbell of McAngus, Goudelock & Courie, as well as the late Michael Gibson of Dean & Gibson for helping to hold the line against another run by the plaintiff’s bar at Woodson.

Hidalgo v. Erosion Control Services

(Court of Appeals - Published – 21 July 2020)

Facts: The decedent employee was killed on July 20, 2016 when the tractor he was driving rolled over on a slope. The employee was ejected from the cab and killed when the tractor rolled on top of him. The evidence showed the employer ECS had replaced the seat on the tractor a year before with one that did not have a seatbelt.

The employee’s estate filed a civil complaint against ECS and its owners. Defendants filed a Motion for Summary Judgment on the grounds that workers’ compensation was the exclusive remedy for workplace injuries. The estate countered that the Woodson exception applied because: (1) the employer replaced the seat without a seatbelt; (2) the tractor was on a slope where it was certain to roll over; and (3) the employer did not train the employee on the risks of driving on such a slope.

The trial court denied ESC’s Motion, but the Court of Appeals reversed and ruled that workers’ compensation was the exclusive remedy for the employee’s death.

Reasoning: The Court of Appeals began with a discussion of Woodson. In Woodson, an employee was directly instructed by the employer to work in a trench without proper slope protection. The trench collapsed and buried him alive. That employer had several prior OSHA citations for the same issue, and other contractors on the site had prohibited their workers from getting in the trench. The Supreme Court held the employer could be sued in civil court because his actions were so intentional and egregious that they were tantamount to committing an intentional tort against the employee, which is not protected by the rule of exclusivity.

The Court of Appeals then explained the Woodson exception is extremely narrow. It only applies when the uncontroverted evidence shows that the employer intentionally engaged in actions that were substantially certain to result in death or serious bodily injury. Mere negligence, carelessness, or even unsafe actions on the part of the employer are not enough to qualify for the Woodson exception.

In this case, the Court noted the employer did not know the replacement seat he ordered did not come with a seatbelt. The employer himself was not present when the seat was installed, and the tractor had been used for a year without a seatbelt with no injuries. The employer also never directed the employee to drive on the slope where the accident occurred. In fact, no one could explain why the employee was driving on that slope, since it was not a part of the project on which they were working. Therefore, the evidence did not show intentional actions by the employer meeting the Woodson standard.

Defense Win in Negligence Case

Wed, 25 Mar 2020 18:01:58 GMT

In January, the 4th Circuit Court of Appeals reaffirmed the U.S. District Court of the Middle District of North Carolina’s summary judgment in Riggins v. Yanceyville in favor of Hagwood & Tipton, attorney Michael Phillips. In this case, the plaintiff claimed the defendant’s negligent care resulted in his mother’s death. The plaintiff’s medical expert failed to testify to a reasonable degree of medical certainty that the death related to the defendant’s failure to provide thickened liquids, resulting in summary judgment.

The attorney’s excellent briefing and legal application led the Court of Appeals to affirm the District Court on all issues.

A MIXED BAG ON GOVERNMENTAL IMMUNITY

Wed, 26 Jun 2019 14:33:52 GMT

THE MEINCK OPINIONS PROVIDE CLARITY ON IMMUNITY, BUT ALTER CONTRACT INTERPRETATION

By: Ryan Bostic, Clawson and Staubes

As many governmental law practitioners are aware, the North Carolina Supreme Court issued a recent ruling on governmental immunity in the case Meinck v. City of Gastonia. In that case, which the NCADA in conjunction with the North Carolina League of Municipalities submitted amicus briefs, the Supreme Court further clarified how to determine if a government actor was engaged in a proprietary function versus a governmental function.

The facts are rather straight forward. Gastonia purchased a vacant historic building which it then rented to a local art guild as part of a downtown revitalization project. Gastonia charged rent to the art guild and collected a percentage of any sales. The rent was minor and the income never offset the cost of operating the building. The arrangement was never designed to turn a profit. The plaintiff was a tenant who fell down a set of steps and was injured. The trial court granted summary judgment in favor of Gastonia finding it was engaged in a governmental function by revitalizing its downtown.

The Court of Appeals overturned the trial court relying on the factors established in Estate of Williams. In addressing the first factor, “whether the Legislature had addressed the issue,” the Court of Appeals held that the Legislature had not specifically stated that revitalizing a blighted downtown is a government function. The Court of Appeals further held that Gastonia’s activity (leasing property) was not one solely and traditionally provided by a governmental entity and the revenue received was substantial, although it did not cover the operating costs.

The Supreme Court overturned the Court of Appeals with a majority of the opinion focusing on the General Statutes addressing Urban Redevelopment Law. The Supreme Court repeatedly noted that that governmental immunity is a fact-intensive inquiry that is properly applied on a case-by-case basis. Still, the true value of the opinion is the clarification that the Legislature does not have to use magic words for a government entity to be entitled to immunity. The holding makes clear that lower courts are to look at the purpose behind the activity, not just the activity itself. Moreover, the Supreme Court held that looking at the problem the Legislature was trying to address can be instructive in the determination. The Supreme Court noted that the Court of Appeals did not mention any of applicable General Statutes.

Further analysis was conducted on the other Estate of Williams’s factors, but it was stressed that courts and practitioners should not become overly reliant on them. For example, when examining whether it is an activity traditionally undertaken by a government the Supreme Court again looked to the language in the General Statutes for clarification, but found that was not dispositive. When addressing the revenue factor, the Supreme Court reversed a longstanding trend of finding any revenue to be substantial regarding the immunity analysis. The Supreme Court looked at Gastonia’s activity as “decidedly noncommercial” and the testimony that Gastonia never set out to make a profit was persuasive.

The major takeaway should be to include the reasons that a government actor is engaging in an activity and explain why it benefits the citizenry and not be strictly married the Estate of Williams’s factors. Attorneys need to put forth the purpose of the activity, what problem it addresses, and how the Legislature gave it the ability to do so and why. Regarding revenue, ask did the government actor seek to profit for the activity or did it know going in that it would never become revenue neutral, but undertook the activity because it benefited the citizens. The opinion stresses the inclusion of these arguments at all stages of litigating immunity.

The Meinck odyssey did not end at the Supreme Court. The case was remanded to the Court of Appeals to determine if the insurance policy waived governmental immunity. The Court of Appeals in Meinck v. City of Gastonia II found that an ambiguity existed in the insuring agreement and then construed the policy in favor of coverage and a waiver of immunity.

This holding represents a departure from typical contract principles and appears to create a new subset of law specifically for government insurance contracts preserving immunity. What makes the opinion extraordinary is that no party to the insurance contract thought there was an ambiguity. In fact, one of the two parties to the contract was not a party to the suit. The result was effectively having declaratory judgment entered against the insurer without it being able to defend itself. The Court of Appeals departed from the established precedent of strictly construing the waiver of immunity and determining the intent of the parties, to strictly construing the policy in favor of coverage. This is most telling when one considers that the only evidence in the record was testimony by the City Manager that Gastonia was aware of governmental immunity and sought to preserve it in the insurance contract.

Admittedly, the language in the policy was not as clear as it could have been. Moving forward, it is imperative that any insuring agreement that looks to preserve immunity state so in the clearest and simplest terms. The question of which legal policy to follow (strictly construing against waiver of immunity vs. strictly construing in favor of coverage) seems to have been resolved in favor of coverage and a waiver of immunity. Therefore, all government entities and their insurers need to assess and potentially revise the language contained in the policies to ensure immunity is preserved.

371 N.C. 497, 819 S.E.2d 353 (2018).

366 N.C. 195, 732 S.E.2d 137 (2012).

823 S.E.2d 459 (N.C. App. 2019).

Verdict Directed for Defense in Food Poisoning Case

Thu, 28 Feb 2019 16:31:29 GMT

On April 26, 2018, Judge Carl Fox of the Wake County Superior Court directed a verdict in favor of defendant, St. Clair Foods regarding a case of possible food poisoning. Matthew Little and Lindsey Revels of Teague Campbell represented the defendant who stood accused of selling contaminated potato salad that sickened the plaintiff, Claude Burgess.

Burgess stated he ate the potato salad at the K&W restaurant and that it immediately burned his throat. He continued to eat the potato salad and became violently ill shortly thereafter. K&W and Institution Food House, a food distribution company, had already settled for an undisclosed amount; however, St. Clair Foods chose to take the case to trial. Little detailed the measures to which St. Clair Foods goes to sanitize their facility daily, and stated "St. Clair Foods makes roughly 36 million pounds of potato salad each year...the tub this came from was from a batch of about 5000 portions. If there had been a problem at the plant, hundreds or thousands would have been sick. But only he made a claim."

The case against St. Clair Foods ended when it was determined there was not enough evidence to hold it responsible.

Buncombe County Dram Shop Victory for Defense

Thu, 28 Feb 2019 16:29:25 GMT

On March 27, 2018, a jury in Bumcombe County Superior Court, Judge Tommy Davis presiding, rendered a unanimous verdict for the defendant LJ Wings, Inc., represented by NCADA member Jeremy Stephenson, in a case of dram shop liability. Ellen Wortman represented co-defendant William Erickson, who had stipulated to his liability before trial. Plaintiff Dung Trang was represented by attorneys Lakota Denton and Luke Baker. Trial Judge Davis granted Defendants’ motion to “trifurcate” the case into (1) Wings’ liability, (2) compensatory damages, and if applicable, (3) punitive damages. The jury ruled for Wings as to liability, and did not reach the other issues.

Mr. Erickson drank at Defendant Wings regularly, and for several hours before the accident. Wings’ witnesses testified to their extensive safe alcohol service training, including how they cut off defendant Erickson, gave him food and water, and asked about how he was getting home. Plaintiff’s counsel made unusual motion in limine to bar Defendants’ use of either plaintiff’s medical bills or records, or wage documentation. Plaintiff himself also did not attend any part of the trial, from selection to the verdict for Wings. Costs of $9,276.04 were awarded to Defendant Wings.

Lincoln Derr Secures Defense Win in Medical Malpractice Case

Mon, 03 Dec 2018 15:19:50 GMT

On Wednesday, November 14, 2018, after nearly three weeks of trial, a jury returned a unanimous defense verdict in favor of a Lincoln Derr client.

By winning in the first phase of this bifurcated trial Lincoln Derr saved their clients from a potential $10 million exposure. The case involved an alleged hypoxic-ischemic injury to a newborn during labor and delivery. Traditionally, these cases are considered exceptionally difficult to defend because of the emotional response jurors have to injured newborn children. Further, the case was tried in Durham County, a venue previously considered to be very plaintiff-friendly.

When asked about the verdict Gwendolyn Lewis said, “This was my first medical malpractice trial involving an injury to a newborn infant. While the injury to the child was sad, the jury verdict confirmed that physicians can do everything within the standard of care and still have a bad outcome. This verdict goes to the heart of why we do this work, to protect the good names of physicians who are doing their best for their patients.”

This verdict is the fifth defense verdict in medical malpractice trials for Lincoln Derr in 2018. The firm’s medical malpractice group credits their success to unparalleled preparation and ability to disentangle the complex facts of the case to the jury.

Congratulations to Sara Lincoln, Gwendolyn W. Lewis, and Erin Alfaro for successfully defending our client.

View article

Defense Win! §1983 & Civil RICO Claim

Lynette Pitt — Mon, 09 Oct 2017 17:01:40 GMT

Deb Bowers (with the assistance of Andrew Pinto) won a jury trial in the Western District, Charlotte before Judge Frank Whitney in January, 2017, representing/defending a municipality and several municipal employees and former police chief, mayor and town managers in a civil rights action brought by former residents of the town. One brother was incarcerated on other charges at the time of the lawsuit, and one was living in the county. Included as defendants and separately represented were two former police detectives who were accused of violating the brothers’ civil rights and harassment. Plaintiffs alleged that the actions of the defendants destroyed their business and alleged section 1983 and civil RICO claims against all parties. The almost 2 week long jury trial resulted in a jury finding of no liability on all claims.

Recently, on September 22, 2017, the trial Court ruled on post-trial motions, including an important motion for summary judgment on the statutes of limitations for all claims, which provides additional grounds on appeal for supporting the pre-trial dismissal of the individual City defendants, who were dismissed on qualified immunity grounds immediately before the trial against the City and others.

Exclusivity of Workers’ Compensation Remedy

Lynette Pitt — Fri, 17 Feb 2017 20:30:00 GMT

In Fagundes v. Ammons Development, et al, __ N.C. App. __, __ S.E.2d __ (2017) (2017 WL 495573), a unanimous decision from the North Carolina Court of Appeals issued February 7, 2017, the Court reversed and remanded the lower court’s denial of summary judgment in favor of the defendants employer/co-workers on plaintiff employee’s strict liability claims and held that there is no exception to the exclusivity of the Worker’s Compensation Act for strict liability claims against employer/co-workers by employees injured while employed by a blasting company and engaged in blasting, an ultrahazardous activity. The Court also reversed and remanded the denial of summary judgment on plaintiff’s Pleasant claim.

Jay P. Tobin of Young Moore & Henderson, P.A. represented the employer/co-worker defendants in the lower court and on the appeal.

Favorable Directed Verdict

Lynette Pitt — Tue, 23 Aug 2016 18:30:48 GMT

In June, Judge Robert Ervin granted Directed Verdict in favor of our physician client on the basis that the Continuing Course of Treatment Doctrine did not apply to toll the statute of limitations. Specifically, the Plaintiff’s expert did not present evidence that the defendant doctor could have taken any action at subsequent encounters to remedy the alleged earlier negligence. Therefore, the statute of limitation was not tolled, and the action was not timely filed. Although Judge Ervin did not agree with the controlling case law, he felt bound by it and reluctantly granted our motion.

Submitted by Scott Addison, Lincoln Derr

Directed Verdict in Medical Negligence Case

Lynette Pitt — Tue, 10 May 2016 18:40:55 GMT

Sara Lincoln and Scott Addison get directed verdict. After two weeks of trial, the trial court determined Plaintiffs failed to meet their burden on any of the elements of medical negligence under North Carolina law and directed a verdict in the Defendants’ favor as a matter of law. Plaintiffs' counsel had suggested to the jury that they were going to ask for as much as $40 million in damages in the case.

Defense Verdict: Negligence & Breach of Contract

Lynette Pitt — Fri, 06 May 2016 14:00:00 GMT

NCADA members Luke Sbarra and Lucas Garber from Hedrick Gardner Kincheloe & Garofalo, LLP tried a negligence and breach of contract case to a defense verdict during the March 7, 2016, civil term of court in Iredell County Superior Court. The lawsuit arose out of a fire to an upfitted PGA tour bus that Luke and Lucas' client contracted to provide to the plaintiff. The fire occurred in Georgia after a temporary repair to the engine en route to delivery of the bus to Florida. Luke and Lucas tried the jury case over three days, and Judge Lynn Gullett presided.

USDC grants summary judgment to Rocky Mount Police in 42 USC 1983 case

Lynette Pitt — Tue, 26 Apr 2016 19:30:00 GMT

submitted by Nick Ellis, Poyner Spruill

Caleb Wardrett v. City of Rocky Mount Police Department, Det. Clifton and Det. Denotter ( United States District Court for the Eastern District of North Carolina, 2016)

The federal court granted summary judgment for the City of Rocky Mount, its Police Department and detectives in a case brought against them under 42 USC §1983 where claims were asserted for malicious prosecution and false arrest. The police detectives conducted interviews of witnesses who had information concerning an attempted homicide that took place in Rocky Mount. As a result of that investigation, the plaintiff was charged with attempted murder. The detectives believed they had probable cause to have an arrest warrant issued. This belief was supported by the fact that the local magistrate found probable cause existed and issued the warrant. However, at a subsequent state court probable cause hearing, several witnesses failed to appear or changed their accounts of what happened, which led to the charges being dismissed.

Plaintiff then filed his civil suit in the United States District Court claiming violations under 42 USC §1983. Claims were made against the detectives in their official and individual capacities. The court analyzed these claims and determined the plaintiffs Fourth Amendment rights had not been violated. The court noted that a finding of probable cause defeats a false arrest/malicious prosecution claim. Probable cause is based on a practical assessment of the totality of the circumstances and the court found that the detectives had probable cause to seek the issuance of the arrest warrant based on the information they uncovered. In its analysis, the court focused on the critical point in time and looked at what the officers reasonably believed when the charges were issued-and not what occurred through later developments.

Plaintiff also stated a Monell claim against Rocky Mount under §1983. But, no claim can be recognized for respondeat superior liability under §1983. The trial court concluded there was no evidence of a policy in the Rocky Mount Police Department that was the basis of the constitutional violation in addition to its initial finding, which was no constitutional violation occurred. Based on the failure to demonstrate that his constitutional rights of been violated, the trial court dismissed plaintiffs case.

Defense Win! Breach of Contract and Unfair & Deceptive Trade Practices Claim

Lynette Pitt — Fri, 22 Jan 2016 18:33:41 GMT

On December 17, 2015, Jason Benton, a partner in Parker Poe Adams & Bernstein LLP’s Charlotte office, won a defense verdict in a Mecklenburg County jury trial involving breach of contract and unfair and deceptive trade practices claims against a gas utility company. The dispute arose out of an easement obtained by the gas company to install a pipeline needed to deliver clean-burning natural gas to a power plant to replace the plant’s use of coal. The gas company entered into a contract with the plaintiff-landowner in which the gas company agreed to “minimize” the cutting of trees. The landowner alleged that the gas company’s agent told him that it would only cut trees in a specific, narrow area. The agent denied making that representation. The week before trial, Jason learned that his key fact witness, the agent who denied making representations to the land owner about the limits of clearing, was in the hospital for medical treatment and unavailable for trial. Jason had to rely on that witness’ deposition testimony. (The witness died during trial.) During the 2-week trial, the plaintiff called 9 witnesses, 4 of whom were tendered as experts in real estate appraisal, site planning, surveying and forestry. Plaintiff asked the jury to award $159,000 for the alleged diminution in value of its property due to the tree removal and for the court to treble that number for a total recovery of a little under $500,000. After deliberating for only 45 minutes, the jury returned a complete defense verdict, finding no breach of contract and no unfair/deceptive acts on the part of the defendant-gas company. Since the Plaintiff recovered no damages in the trial, the gas company is entitled to recover its costs due to an offer of judgment made over a year ago.

North Carolina Supreme Court Affirms Limitations on Appraiser Liability

Lynette Pitt — Mon, 21 Dec 2015 19:30:00 GMT

The North Carolina Supreme Court has held that purchasers of real property may not bring claims against appraisers retained by their lenders where the purchasers did not request or receive the appraisal reports, and where they did not interact with the appraisers. The opinion, Arnesen et al. v. Rivers Edge Golf Club & Plantation, Inc. et al., No. 375A14, rejects the notion that purchasers may simply rely on the appraisers’ work “by proxy” where the lender relies on the appraisal in making an underwriting decision. Instead, the opinion holds that appraisers do not owe unlimited duties to borrowers, who must actually and directly rely on the appraisal itself to be permitted to assert a claim. The appraisers in Arnesen were represented by Jacob H. Wellman and Natalia K. Isenberg of Teague, Campbell, Dennis & Gorham, LLP of Raleigh, North Carolina.

Action to Set Aside Form 60

Lynette Pitt — Mon, 16 Nov 2015 16:00:00 GMT

Action to Set Aside Form 60 - Hardison v. Goodyear Tire & Rubber Co., 776 S.E.2d 898 (N.C. Ct. App. 2015)

The North Carolina Court of Appeals upheld the Commission’s power to set aside a Form 60 on grounds of “newly discovered evidence” and “fraud and/or misrepresentation” provided a due diligent investigation is first undertaken. Hardison 776 S.E.2d 898, *5. Defendants filed a Form 60 admitting a 22 December 2011 hernia claim after Plaintiff consistently denied pre-claim abdominal issues. Discovery in a subsequently filed claim revealed that Plaintiff’s hernia was present as of 11 November 2011. Such neurology record was not discoverable at the time of the hernia acceptance as the neurologic condition was not claimed at that time.

Submitted by Matthew Ledwith, Hedrick Gardner Kincheloe & Garofalo, LLP

Defense Verdict in Shoulder Dystocia Case

Lynette Pitt — Tue, 27 Oct 2015 16:18:59 GMT

In September, John Beyer and Jonathan Hall of Parker Poe obtained a defense verdict in Gaston County in a medical malpractice case against an OB/GYN and a nurse midwife, where allegations included negligence in managing shoulder dystocia during the delivery of a 10’ 11” baby boy, resulting in permanent brachial plexus palsy. Plaintiff’s attorneys were Chuck Monnett and George Tolley (Timonium, Md.). Trial judge was Linwood Foust. The trial was bifurcated on Plaintiff’s motion, and the jury returned a defense verdict on liability during the third week of trial. Plaintiff’s experts included Robert Allen, Ph.D., a biomedical engineer, who was prevented by the court from offering opinions on actual causation in this case. Post-trial motions are pending.

POPE v. BRIDGE BROOM, INC., No. COA14-221 (N.C. Ct. App. Apr. 7, 2015)

Lynette Pitt — Thu, 28 May 2015 20:38:19 GMT

The Defendants were performing a street sweeping operation on Independence Boulevard in Charlotte, North Carolina. The driver of a motorcycle lost control as he was approaching the operation. His wife was thrown from the vehicle and was killed as a result of the incident.

The Court held that the testimony of Defendant's expert that the driver of a motorcycle had sufficient time to safely brake before the accident was sufficient to allow the trial judge to instruct the jury on intervening negligence. The Court further held that the expert's testimony was reliable and met the standards of Daubert. The Court held that when considering all of the factors considered by the expert, including deposition review, site inspections, skid marks and Google Earth, his testimony was reliable. Finally, the Court held that a violation of a guideline from the Manuel for Uniform Traffic Control Devices (MUTCD) does not warrant negligence per se instruction.

Submitted by Colin Scott, McAngus Goudelock & Courie, LLP

Defense Win: FMLA Case

Lynette Pitt — Thu, 30 Oct 2014 21:22:16 GMT

Christopher J. Geis and Sonny S. Haynes of Womble Carlyle Sandridge and Rice, LLP in Winston-Salem obtained a defense verdict in favor of the employer in a Family and Medical Leave Act of 1993 ("FMLA") case. During her employment at a county jail, Plaintiff requested and took medical leave pursuant to the FMLA. When she attempted to return to work, her employer terminated her for misconduct that the employer became aware of while Plaintiff was on leave.

Plaintiff filed the lawsuit in the United States District Court for the Eastern District of North Carolina alleging a violation of her rights under the FMLA and other state law claims.

After extensive discovery and briefing, the court granted Defendants' motion for summary judgment as to Plaintiff's state law claims.

The case proceeded to a jury trial in Raleigh on Plaintiff's FMLA interference claim. Experienced and aggressive attorneys represented Plaintiff. After a four-day trial and four hours of deliberations, the jury rendered a defense verdict on May 30, 2014.

Asbestos Case Defense Win

Lynette Pitt — Thu, 30 Oct 2014 21:17:10 GMT

This asbestos case was tried before a jury for over three weeks in Greenville, South Carolina on Plaintiff's claims of negligence, strict liability, and breach of warranty. Plaintiff alleged that her decedent died of mesothelioma as a result of exposure to asbestos from brakes and other friction products during the course of his 20-year career as a mechanic. Although Plaintiff's original complaint named 38 defendants, only two defendants - Ford Motor Company and Volkswagen Group of America, Inc. - remained during the trial. Among other things, the defendants argued that the decedent's alleged exposure to asbestos from brakes and friction products was not the cause of his mesothelioma because the type of asbestos fibers used in those products had a low level of toxicity and would not be of sufficient dose to cause or contribute to the decedent's mesothelioma. The trial was bifurcated as to determination of liability and compensatory damages (Phase I) and punitive damages (Phase II). After a day and a half of deliberations in Phase I, the jury returned a straight defense verdict in favor of the defendants. Ford Motor Company was represented by NCADA members Kirk Warner and Chris Kiger of Smith, Anderson, Blount, Dorsett, Mitchell, & Jernigan, LLP, as well as by Shep Wainger from the Norfolk office of McGuireWoods, LLP and SCDTAA members Danny White and Curtis Ott from Gallivan, White, & Boyd, PA.

Wilcox v. Gonce, et al, Buncombe County Superior Court, 10-CVS-2809

Lynette Pitt — Thu, 31 Jul 2014 21:29:15 GMT

This police shooting case was tried before a Buncombe County Superior Court jury for two and a half weeks from March 24 to April 9, 2014. Plaintiff alleged that the defendant-officers acted maliciously- and were therefore liable in negligence and for punitive damages- in discharging their firearms at the suspect-driver during a vehicular pursuit, but missing him and striking his passenger, the injured plaintiff. Plaintiff sought recovery for medical expenses exceeding $250,000 and asked the jury to return a verdict at or above $2,000,000. After a little over a day of deliberations, the jury returned a complete and unanimous defense verdict as to all three defendant-officers. The defendants were represented by NCADA member Jason R. Benton, who practices in the Charlotte office of Parker Poe Adams & Bernstein LLP. Print media coverage of the result may be found here: http://www.citizen-times.com/story/news/crime/2014/04/09/jury-asheville-officers-acted-without-malice/7531585/.

Evans v. Metcalf, et al

Lynette Pitt — Thu, 29 May 2014 21:40:24 GMT

Plaintiff was a patient at Wayne Memorial Hospital from September 20, 2010 through October 3, 2010. During that time, his presenting problems of COPD exacerbation and bronchitis were evaluated and treated by the Defendant Hospitalists and Defendant Pulmonologist/Intensivist. Approximately one week into his hospitalization, Plaintiff began complaining of lower extremity weakness. One of the Hospitalist Defendants ordered a physical therapy evaluation, which revealed that Plaintiff could not stand independently. Plaintiff’s weakness was attributed to deconditioning. During his hospitalization, Plaintiff also complained of abdominal pain. A surgical consult was obtained, and Plaintiff’s gallbladder was ultimately removed, which seemed to resolve his pain. Despite multiple recommendations that Plaintiff be discharged to short term rehabilitation, he refused to go and was discharged home on October 3, 2010.

On October 7, Plaintiff was returned to Wayne Memorial by EMS, where admitting documentation states that Plaintiff was “completely unable to move his legs and has had loss of his bladder function.” An MRI on October 8 revealed a severe compression fracture of T5 resulting in a spinal cord compression. Plaintiff was transferred to Pitt County Memorial where a neurosurgeon decided that, since symptoms had been present for so long, emergent surgery would result in no improvement of function. On November 17, 2010, Plaintiff was discharged home with home health for wheelchair mobility.

Plaintiff was a 51-year-old divorced male on disability since 2004 for psychiatric issues. He had a long history of polysubstance abuse, and despite his diagnosis of severe COPD, he continued to smoke. Defendants argued that his sedentary lifestyle, prior drug abuse, and comorbidities contributed to the degree and quickness of onset of deconditioning. Accordingly, Plaintiff’s prior drug use was allowed, over objection, into evidence.

Plaintiff’s experts contended that the Plaintiff’s weakness was the result of spinal cord impingement and could not be deconditioning because the Plaintiff had severe weakness in his lower extremities, but normal strength in his upper extremities. They contended that the Defendant Hospitalists and Defendant Pulmonologist/Intensivist were negligent in failing to diagnose a neurological deficit and order either a neurological consultation or an MRI, which would have revealed a spinal cord impingement. Defendants’ experts contended that the physicians appropriately diagnosed deconditioning and that Plaintiff did not, in fact, have a spinal cord impingement to diagnose during the hospitalization. They contended that his spinal cord was injured when his family attempted to move him at home after discharge.

At trial, Plaintiff’s experts contended that the nurses were negligent in failing to perform appropriate neurological assessments in light of Plaintiff’s complaints of weakness and in failing to communicate their findings to the Defendant Hospitalists and Defendant Pulmonologist/Intensivist. Counsel for the hospital argued in a motion for directed verdict that Plaintiff failed to prove the element of causation because there was no proof that, if the nurses had communicated their findings to the Defendant physicians, the physicians would have done anything differently. Rather, the evidence showed that the physicians were aware of the Plaintiff’s weakness and had attributed it to deconditioning. At the conclusion of all evidence, Judge Jenkins granted the Hospital’s motion for a directed verdict.

Defendants also put on evidence of contributory negligence, arguing that Plaintiff was negligent in 1) failing to report a fall that occurred two weeks before the hospitalization; 2) failing to report back pain during the hospitalization; 3) failing to follow the advice of his physicians to go to short term rehabilitation; and 4) failing to return to the hospital when his condition changed at home. Defendants also entered evidence, over objection, that the Plaintiff subsequently filed a lawsuit against the home health agency, claiming that all of his injuries occurred after a home health visit.

Because the trial was bifurcated by consent of the parties, the Plaintiff was unable to present evidence of the Plaintiff’s current condition, which would have included incredibly sympathetic testimony about the Plaintiff’s daily activities.

The jury deliberated for roughly four hours and thirty minutes before returning the defense verdict for the Defendant Hospitalists and Defendant Pulmonologist/Intensivist.

Defense attorneys: Leigh Ann G. Smith, Randolph L. Lee, and Arienne P. Blandina, Batten Lee, PLLC, Raleigh, NC for Dr. Metcalf, Dr. Mayo, Dr. Willis, and Eastern Medical Associates, P.A.

Barry S. Cobb and Mindi L. Schulze, Yates, McLamb & Weyher, LLP, Raleigh, NC for Wayne Memorial Hospital

Defense Verdict in Dog Bite Case

Lynette Pitt — Thu, 29 May 2014 21:34:42 GMT

Carlton F. Poston v. Dr. Jack and Beverly Hyatt13-CVS-852, Catawba County

This matter arose from a dog bite incident occurring at Defendants’ home on December 3, 2010. Plaintiff was a HVAC technician and was performing work on Defendants’ HVAC unit on the day of the incident.

Defendants’ have owned many Bullmastiff breed dogs in their lives as they both love the breed and have shown their dogs in various AKC competitions over the years. Two of their prior Bullmastiffs have been AKC champions for the breed. Defendants’ home also contained an indoor/outdoor room separate from the main living space, so the dogs could go out to their run in the backyard and also come into the indoor/outdoor room of the home. The indoor/outdoor room was separated from the rest of the home by a dutch-door such that the top half and bottom half of the door swung separately.

On December 3, 2010 Plaintiff was working on Defendants’ HVAC unit in the basement of the home. He came from the basement to talk to Ms. Hyatt who was standing in the indoor/outdoor room with three of her dogs. The bottom half of the dutch-door was closed, and Ms. Hyatt and the dogs were on one side of the door and Plaintiff was on the other side.

Ms. Hyatt testified that Plaintiff reached over the door to pet one of her Bullmastiff dogs, Molly, and in doing so startled Molly causing her to bite Plaintiff on the hand. Plaintiff testified that he was standing beside the door and resting his hand on the top of the door when Molly came up to him and bit the top of his hand without provocation. Defendants both testified that Molly had never bitten anyone or showed any signs of aggressions before this incident.

Subsequent to the bite Plaintiff’s puncture wound became infected, and the infection continued on for several weeks. The infection was found to have been caused by a rare bacteria, Pastuerella Pneumotropica, which is occasionally found in dogs and cats. Because the infection could not be healed it destroyed the tissue in the middle part of Plaintiff’s hand, and his doctors recommended amputation of his middle finger. In total, Plaintiff’s medical expenses and lost wages amounted to $100,969.

At the close of Plaintiff’s case in chief Defendants moved for directed verdict on the grounds there was no evidence that Molly had ever shown aggressive tendencies or bitten anyone before. Therefore Defendants’ had no reason to believe she would have bitten Plaintiff on this occasion. However there was testimony from two of Plaintiff’s co-workers, who had been at Defendants’ home working on the HVAC unit four years before this incident, that they were scared when one of the Defendants’ dogs barked, growled, and jumped up on the dutch-door while they were in Defendants’ home. The witnesses were uncertain whether this dog was Molly because Defendants’ owned three Bullmastiffs at this time. The witnesses described this incident as an attempted attack, although they conceded that while they were scared the dog was always confined to the indoor/outdoor room and never bit, chased, on jumped on them in any way. As a result of this testimony the motion for directed verdict was denied.

The defense also moved for directed verdict on Plaintiff’s common law claim for strict liability. Defense counsel argued that a strict liability claim could only be supported by evidence of expert testimony that the particular breed of dog had characteristics of viciousness or aggression. This motion was again denied because of the testimony from the witnesses describing they were scared by aggressive conduct by one of the Defendants’ dogs four years earlier.

The case went to the jury on four issues: negligence, contributory negligence, strict liability, and damages. The jury deliberated for about three hours and found Defendants’ negligent, and Plaintiff contributorily negligent. On strict liability the jury was charged with deciding the issue of whether the Defendants owned or kept a vicious animal? The jury answered “No” to this issue, and the issue of damages was not reached.

Some members of the jury commented after the verdict that they could see both parties having some responsibility for the bite occurring; however no one believed that Molly was a vicious dog, thereby shielding Defendants from the strict liability cause of action.

Aminah Singletary v. Diane Teal Ingram 13-CVS-8196 (Mecklenburg County)

Lynette Pitt — Wed, 30 Apr 2014 21:57:32 GMT

This case arose from a motor vehicle accident along I-85 on 9-19-2011 in which Defendant rear-ended the vehicle operated by Plaintiff Aminah Singletary. Following the accident, Plaintiff’s husband took her to the emergency room.

Plaintiff was a 49-year-old unemployed/disabled, married female. She a long and significant medical history prior to the 9-19-2011 MVA that included a diagnosis of multiple sclerosis (MS) in 2005, migraine headaches, neuropathic pain in both lower extremities, fracture in right ankle, back and neck pain, bilateral shoulder pain, and two fusions in her cervical spine.

Defendant’s auto liability carrier paid its policy limits of $30,000 to Plaintiff prior to trial. Plaintiff’s UIM carrier tried the case.

On 8-10-10, Plaintiff saw her neurologist and reported she had been having difficulties with pain in her neck. Plaintiff was involved in a motor vehicle accident on 9-3-2010. She slammed on the brakes but ended up rear ending another car. On 4-26-11, Plaintiff saw her neurologist’s nurse practitioner and complained of increased pain, numbness and heaviness in her right leg.

The overwhelming majority of the medical expenses (approximately $149,000 of the total of the $183,000+ in alleged expenses) were incurred through Plaintiff’s treatment with neurosurgeon in Hendersonville, NC. At trial, Plaintiff only submitted the medical bills associated with the treatment provided by the neurosurgeon; she did not submit the emergency room bills.

Plaintiff’s neurosurgeon testified live and opined that the accident aggravated pre-existing conditions and necessitated two surgeries. The UIM carrier argued that the surgeries were both unnecessary and unrelated to the accident.

The treatment with the neurosurgeon began on 7-26-2012 and included two surgeries. On 9-5-12, he performed a subocciptital craniecotmy to address a chiari malformation. On 6-5-13, the neurosurgeon performed a C2 and C7 undercutting laminostomy and C3-C6 cervical laminectomy for cervical stenosis.

The NC State Medical Board had suspended the neurosurgeon’s license on two occasions: 11-13-2002 (temporary licenses retained beginning on 7-1-2004) and 2-1-2009. At the time of the surgeries, the NC Medical Board had conditions placed on his medical license (independent examinations by a neurologist before performing certain surgeries).

The UIM carrier arranged for Plaintiff to undergo an independent medical examination with a local neurologist on 11-12-13. The local neurologist testified by deposition. The IME physician opined that Plaintiff’s “post accident complaints of pain are likely the result of her underlying disease and not the accident.” The IME physician also opined that “it is possible that the patient's neck pain was exacerbated after the accident as a result of the trauma interacting with her multiple previous cervical fusions. The right ankle fracture . . . was clearly chronic . . . All of her other symptoms have been present since long before the accident and are likely due to other causes.” Finally, the neurologist testified that the surgeries of 9-5-2012 and 6-5-2013 were unnecessary and not related to the accident.

During closing arguments, Plaintiff’s attorney asked for medical expenses of $140,000. He also suggested a per diem for pain and suffering ranging from $100 per day for 800 days to $1,000 per day for 800 days. The UIM carrier’s attorney argued that the surgeries were unnecessary and not related to the subject accident. He also argued that Plaintiff’s neurosurgeon acknowledged that he did not have Plaintiff’s complete medical history, something he admitted was necessary when giving causation opinions.

The jury deliberated for 2 hours, 45 minutes before returning the defense verdict.

Defense Attorney: Allen C. Smith, Hedrick Gardner Kincheloe & Garofalo, LLP, Charlotte, NC