Verdicts and Rulings

NCADA members are trial, appellate, and workers’ compensation attorneys from across North Carolina.  Our members handle some of the most sophisticated and challenging cases, cases that have shaped and will shape our jurisprudence for years to come.

This section of The Resource highlights some of our members' successes.  

  • 22 Jan 2016 1:33 PM | Lynette Pitt (Administrator)
    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.


  • 21 Dec 2015 2:30 PM | Lynette Pitt (Administrator)

    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.


  • 16 Nov 2015 11:00 AM | Lynette Pitt (Administrator)

    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

  • 27 Oct 2015 12:18 PM | Lynette Pitt (Administrator)

    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.


  • 28 May 2015 4:38 PM | Lynette Pitt (Administrator)

    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


  • 30 Oct 2014 5:22 PM | Lynette Pitt (Administrator)

    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.

  • 30 Oct 2014 5:17 PM | Lynette Pitt (Administrator)
    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.  


  • 31 Jul 2014 5:29 PM | Lynette Pitt (Administrator)
    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/. 


  • 29 May 2014 5:40 PM | Lynette Pitt (Administrator)

    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

  • 29 May 2014 5:34 PM | Lynette Pitt (Administrator)

    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.

 
Powered by Wild Apricot Membership Software