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  • 30 Sep 2021 10:28 AM | Jennifer Edwards (Administrator)

    by Charles E. McGee, Sizemore McGee, PLLC

    In workers’ compensation claims arising on or after 6/24/2011, N.C. Gen. Stat. § 97-29 limits the payment of temporary total disability (“TTD”) compensation to 500 weeks from the date of first disability, unless the claimant qualifies for extended compensation through N.C. Gen. Stat. § 97-29(c).  To qualify for extended compensation, the claimant’s extension application must be made at least 425 weeks after the date of first disability, and unless otherwise agreed to by the parties, the claimant must prove by a preponderance of the evidence a total loss of wage-earning capacity.  Deputy Commissioners have thus far entered decisions in eight cases addressing extended compensation; five of these have been appealed to the Full Commission, which very recently entered its first decision in the appeals.

    • ·       In I.C. No. X51195, Nobles v. NC DHHS/Central Regional Hospital, Plaintiff sustained compensable injuries to his eye, mouth, and shoulder when he was assaulted by a patient on 6/26/2011.  Deputy Commissioner Robert J. Harris awarded extended compensation on 1/25/2021.  Much of the litigation focused on the compensability of Plaintiff’s alleged chronic post-traumatic stress disorder (“PTSD”) and major depression and alleged disability resulting therefrom.  Two neuropsychiatrists authorized by Defendants deemed Plaintiff malingering, and a Rehabilitation Professional prepared a Labor Market Survey (“LMS”) identifying several positions Plaintiff could perform.  Plaintiff presented evidence from a treating psychiatrist who opined his chronic PTSD and major depression were related to the 6/26/2011 incident and render him permanently and totally disabled and unemployable.  The Deputy Commissioner gave greater weight to the testimony of Plaintiff’s treating psychiatrist over other expert testimony, noting the two neuropsychiatrists authorized by Defendants were one-time evaluators and the Rehabilitation Professional did not meet with Plaintiff and based her LMS entirely on the premise that Plaintiff was malingering and had no restrictions related to the 6/26/2011 incident.  The Deputy Commissioner concluded Plaintiff’s chronic PTSD and major depression are causally related to the 6/26/2011 incident and result in a total loss of wage-earning capacity.  Defendants appealed to the Full Commission.  On 9/29/2021, the Full Commission issued a decision denying compensability for the alleged chronic PTSD and major depression and denying Plaintiff’s application for extended compensation.  The Full Commission gave greater weight to the opinions of the two neuropsychiatrists authorized by Defendants, finding Plaintiff’s treating psychiatrist relied solely on Plaintiff’s subjective reports to support his diagnosis while the two neuropsychiatrists authorized by Defendants formed their opinions based upon both Plaintiff’s subjective reports and his objective testing performance.  In addition, the Full Commission found Plaintiff had not treated for his eye, mouth, and shoulder injuries since 2012, had reached maximum medical improvement for the injuries, and did not retain any work restrictions stemming therefrom.  Accordingly, the Full Commission concluded Plaintiff had not established a lack of total wage-earning capacity as a result of his compensable injuries and thus was not entitled to extended compensation.  Vice-Chair Myra L. Griffin authored the Full Commission’s Opinion & Award, and Commissioner Kenneth L. Goodman and Deputy Commissioner David Mark Hullender concurred. 
    • ·       In I.C. No. X59367, Betts v. NC DHHS/Cherry Hospital, Plaintiff sustained an ankle injury while restraining a combative patient on 8/12/2011 and ultimately underwent six surgeries.  Deputy Commissioner Harris awarded extended compensation on 3/12/2021.  One authorized treating physician assigned sedentary work restrictions to Plaintiff, while another added that Plaintiff should be allowed to raise her foot to at least heart level.  Plaintiff retained a Rehabilitation Professional who performed a vocational evaluation and opined Plaintiff’s ankle condition and restrictions prevent her from obtaining and maintaining employment in any setting due to the foot elevation requirements.  Defendants retained a Rehabilitation Professional who opined it is more likely than not Plaintiff could return to wage-earning capacity, but if Plaintiff is required to keep her right foot elevated for at least twenty minutes every hour, there are no jobs in the national economy which Plaintiff could perform unaccommodated.  The Deputy Commissioner gave greater weight to the testimony and opinions of the Rehabilitation Professional retained by Plaintiff, determining her analysis is more tailored to Plaintiff’s specific circumstances.  In addition, the Deputy Commissioner found that while Plaintiff may be a candidate for a very flexible, part-time, stay-at-home position with an employer which offers on-the-job training, the possibility of such a position existing does not reach the level of providing a reasonable expectation that Plaintiff could earn wages in the competitive economy.  Thus, the Deputy Commissioner found, Plaintiff met her burden of proof on extended compensation by showing there is no reasonable expectation she could earn wages in the competitive economy given her limitations and need for accommodation due to her injury, in combination with her age, limited education, and limited transferrable skills for sedentary work.  Defendants have appealed to the Full Commission, which heard oral argument on 8/11/2021.
    • ·       In I.C. No. Y18418, Sturdivant v. NC DPS, a prior Deputy Commissioner decision had deemed Plaintiff’s 8/31/2011 back injury compensable and awarded TTD.  Deputy Commissioner Erin F. Taylor denied extended compensation on 5/5/2021.  In rejecting Plaintiff’s argument that the prior decision is res judicata on the issues determined therein and entitles him to a presumption of ongoing disability, the Deputy Commissioner relied on the statutory language of N.C. Gen. Stat. § 97-29, which applies the compensation cap to instances “when a claim has been deemed compensable following a hearing,” and notes TTD compensation ends 500 weeks from the date of first disability “unless the employee qualifies for extended compensation” under subsection (c).  In analyzing the merits of the extended compensation application, the Deputy Commissioner relied on Webster’s Dictionary for the plain, ordinary, and literal meaning of a “total loss” of wage-earning capacity, and concluded Plaintiff is required to show “a complete destruction of the ability to earn wages” to extend his compensation.  Though Plaintiff testified he was unsuccessful in finding work and that his pain kept him from working, the Deputy Commissioner gave great weight to the opinions of four medical providers, some of whom provided restrictions but none of whom opined Plaintiff was unable to work.  The Deputy Commissioner also gave greater weight to the opinions of the Rehabilitation Professional Defendants retained, noting the Rehabilitation Professional Plaintiff retained did not contact any prospective employers for additional information regarding job postings and restricted her LMS to Plaintiff’s home county.  Plaintiff has appealed to the Full Commission, which heard oral argument on 9/15/2021.
    • ·       In I.C. No. X72421, Tyson v. NC DHHS/O’Berry Neuro-Medical Treatment Center, Plaintiff sustained a low back injury on 10/8/2011 while transferring a client from a wheelchair.  Deputy Commissioner Kevin V. Howell denied extended compensation on 8/12/2021.  During depositions, Plaintiff’s pain management provider opined that although Plaintiff has been out of work for some time and his medication carries potentially negative side effects, Plaintiff could perform work in the sedentary-to-light physical level; a rheumatologist who also continued to treat Plaintiff agreed he is capable of work with restrictions even after considering his co-existing conditions.  Defendants retained a Rehabilitation Professional who conducted an LMS and opined Plaintiff was capable of work and able to earn wages in some capacity.  Though Plaintiff disputed his ability to return to work, the Deputy Commissioner gave greater weight to the opinions and testimony of the medical providers and the Rehabilitation Professional.  In reviewing the 2011 changes to the Act, the Deputy Commissioner concluded N.C. Gen. Stat. § 97-29(c) utilizes a “new and different standard for weekly compensation beyond 500 weeks,” and its plain meaning  prohibits TTD compensation beyond 500 weeks from the date of first disability “if the employee has any wage-earning capacity.”  Thus, the Deputy Commissioner concluded, because Plaintiff has not demonstrated by a preponderance of the evidence that he sustained a total loss of wage-earning capacity, he is not entitled to extended compensation.  Plaintiff has appealed to the Full Commission, and the appeal is in the Briefing stage.
    • ·       In I.C. No. X59853, Kotsias v. Florida Health Care Properties, Plaintiff sustained a mid-back injury while transferring a patient on 8/17/2011.  The case has an interesting fact pattern and winding procedural history.  Though the issue of extended compensation was not identified in the parties’ 2014 Pre-Trial Agreement, it was subsequently raised, and Deputy Commissioner Tiffany M. Smith addressed it in an 8/12/2021 decision.  Of note, the Deputy Commissioner found that Plaintiff was entitled to temporary partial disability compensation when employed in a make-work position in early 2014, but was thereafter capable of some work, did not perform a reasonable job search, and is not totally disabled due to her mid-back injury; in addition, the Deputy Commissioner found Plaintiff’s subsequently reduced and at times total lack of earnings did not arise out of her mid-back injury, Plaintiff had not made an application for extended TTD compensation, and Plaintiff had not demonstrated a total loss of wage-earning capacity.  Both parties have appealed to the Full Commission, and the appeals are in the Briefing stage.

     

    Going forward, it will be important for counsel to identify and track the legal standards and methods of proof applied by the Full Commission in its decisions in these extended compensation cases.  While Sturdivant and Tyson indicate a “new and different” showing is required to prove a total loss of wage-earning capacity – i.e., “a complete destruction of the ability to earn wages” or a complete lack of “any wage-earning capacity,” buttressed by sufficient medical and vocational evidence – Betts indicates a showing of “no reasonable expectation [to] earn wages in the competitive economy” may be combined with a claimant’s age, education, and transferrable skills to demonstrate a total loss of wage-earning capacity.  Though the appellate courts may ultimately weigh in on some or all of the cases, the Full Commission’s decisions will help clarify the applicable burdens and analyses in the meantime.

    In addition, the defense bar has noted several issues arising during litigation of extended benefits cases, including:  objection to the use of an LMS where the claimant did not take part in its formulation; attempts to require the institution of full vocational rehabilitation efforts in conjunction with an LMS; attempts to add new and even previously-denied body parts/conditions to bolster disability claims (including allegations of injury- and claim-induced psychological issues); and attempts to take voluntary dismissals without prejudice after filing a Hearing Request.  Counsel would be well served to be aware of these potential issues going forward, and to anticipate the need to counter new or denied body parts/conditions and restrictions as well as efforts to extend litigation and thwart or blunt LMS evidence.


  • 30 Sep 2021 10:25 AM | Jennifer Edwards (Administrator)

    By Chad Jones, P.E., CMSE, CFEI, The Warren Group

    One of my more interesting calls and subsequent forensic investigations was regarding water accumulating inside of 2X4 fluorescent light fixtures in a suspended ceiling of a secondary school in South Carolina.

    A client called reporting an unusual problem. They indicated that the metal chassis of the classroom lights were sweating and generating enough water to accumulate on the diffuser lens of the lights. Seeing is believing, so obviously an on-site investigation was in order!

    On arrival at the school the next day, water was indeed observed to be accumulating inside the 2X4 fixtures and puddling on the diffuser lens in one classroom and the adjoining teachers work room. The sweating light fixtures were not observed in the adjacent classrooms or teacher workrooms.  The phenomenon was also only observed on the first floor of the building. The facility was an approximately 50-year-old two-story educational facility with CMU walls and precast concrete double tees for the floor and roof.

    Inspection above the ceiling of the first story in the affected spaces showed large amounts of condensate on the underside of the double tee panels. The concrete panels were literally sweating and looked like the tile walls of a bathroom after a long, hot shower! Measurements were taken using a non-contact infrared thermometer and the temperature of the areas indicated mid to high 50 degrees Fahrenheit. A quick check of a psychrometric chart indicates that these temperatures are near or at the saturation line for water, explaining why the moisture in the air was condensing on the panels. Test measurements in adjacent rooms not showing moisture problems indicated the temperature of the concrete double tees were in the high 60’s F, certainly above the saturation point as evidenced by the lack of condensation.

    These observations led to two main questions, why is the ceiling in the first floor of the affected area so cold and why is there excess moisture present in a conditioned building?

    Investigating the cause of the extremely cold concrete double tee in the affected room involved inspecting the classrooms above. When I entered the classroom above our subject one, I noted that it was very cold. From discussions with the teacher, it was discovered that the space was unbearably cold at all times since the start of the school year. In fact, the teacher and students wore coats in class even though it was August in South Carolina, definitely not a normal sight for sure. 

    The HVAC system in the building was antiquated and did not have a central building management system. Each HVAC unit had a local thermostat housed in locked box.  The teachers were not allowed to adjust the setpoint at all. Through the clear face of the locked box, the setpoint in the classroom was observed to be set on 55 °F and the space temperature was 59 degrees!! Because the thermostat setpoint was not reached, the HVAC unit continued to supply 55 – 57 °F air to the space in an attempt to reach setpoint. The unit never cycled off, it continually supplied air at saturation conditions. Temperature measurement of the floor indicated 55 – 57 °F, explaining the high 50-degree temperatures observed in the ceiling of the space below the classroom. Maintenance was notified and the thermostat was reset to mid 70’s per district temperature policies.

    With the first question of why the double tees were cold answered, the next question to answer is to find the source of the excess moisture in the ceiling space. As the building is not new, infiltration of outside air is always a concern. While investigating above the ceiling the exterior walls were checked for air intrusion. Large amounts of air could be detected entering the building through the building joints and seams. The quantity of air was so large it could be felt on the skin of the back of your hand and it caused the spider webs above ceiling to sway! A check of exterior doors indicated that the doors had significant resistance to being opened. Once a door was opened, large amounts of air began to rush into the building. The day was calm with little to no wind detectable outside. So why was the building so negative?

    Next stop was the roof of the building. Several large upblast “mushroom” exhaust fans were observed on the roof, towards the center of the building. Data plate information on the fans was located and recorded. The fans were obviously quite large and moved a great deal of air. Investigation back inside the building indicated that the fans exhausted the restrooms located in the core of the building but based on experience and knowledge of fan HP and chassis size, the fans were moving air well in excess of code required levels. Where was the makeup air coming from and why were the fans so large?

    A trip to the central file repository for the District Maintenance Department was in order. Original drawings were obtained for the building. Reviewing the drawings indicated that the classrooms used to be conditioned by a two-pipe hydronic system with fan coil units located in the ceiling. Each fan coil had an outside air duct tied to the return duct with a louver on the exterior wall to bring in fresh air to the space. The two-pipe system and associated ductwork had been demolished and the louvers sealed. Wall mounted heat pumps had been retrofitted to the school in the past. These units had outside air dampers that would close when the wall mount unit was not running. However, the exhaust fans in the restroom were not replaced with appropriately sized fans considering the HVAC system change. This set up an extremely negative condition in the structure. This was the source of the massive infiltration observed above ceiling.

    Outside air calculations and code required exhaust calculations for the restrooms were performed. The overall air balance for the space was then analyzed. New exhaust fans were sized to meet current exhaust requirements in the restroom area. Subsequent replacement of the oversized fans with properly sized fans reduced the infiltration to a level expected from a 50-year-old structure. The space above the ceiling dried up and there were no further reports of puddles of water accumulating in light fixtures.

    Design defects can manifest in mysterious places. A thorough investigation should lead us to the root cause and potential responsible parties. 

    Chad Jones, PE, CFEI, CMSE has a Bachelor of Science in Mechanical Engineering from Clemson University. Chad has over 20 years of engineering experience including mechanical, process, and manufacturing engineering. This work has included equipment design, machine safeguarding, cost estimating and safety compliance. Chad also has over 10 years of commercial, industrial, and residential HVAC and plumbing design experience. Chad is a Certified Fire and Explosion Investigator and IFSAC certified Firefighter II in Greenwood County, South Carolina.


  • 30 Sep 2021 10:14 AM | Jennifer Edwards (Administrator)


    By Kristine L. Prati, Wilson Ratledge, PLLC

    After announcing a return to in-person hearings, the Industrial Commission notified practitioners that Full Commission and Deputy Commissioner hearings will continue to be held by videoconference until further notice.  While the Industrial Commission has been hosting virtual hearings for over a year now, here are some tips and reminders to consider, should you participate in a virtual procedure.

    For hearings at the Deputy Commissioner level, email addresses of all witnesses and attorneys must be provided.  Similarly, the Full Commission requires identification of the attorney handling the oral arguments, if different from the attorney of record.  Prior to the hearing, a WebEx link for the hearing will be provided by the Deputy Commissioner.  Similarly, the clerk of the Panel Chair will send an email requesting/confirming a preferred email address to send the Microsoft Teams invite to.  Thereafter, a Microsoft Teams meeting invitation and link will be provided by the Full Commission’s office.  It is imperative that attorneys respond to the clerk and accept the Microsoft Teams meeting invitation in a timely fashion to ensure receipt of the invitation/link and for oral arguments to run smoothly on the day of.

    Prior to a Deputy Commissioner hearing, practitioners and witnesses may perform a “test hearing” through www.webex.com/test-meeting.html.  It is also recommended that you and your witnesses “appear” for the virtual conference at least 15 minutes ahead of time to work out at any issues.  While members of the Industrial Commission have become quite adept with the virtual platforms, they often have to spend large amounts of time guiding less adept practitioners and claimants who are experiencing technology issues.  Microsoft Teams, used by the Full Commission, allows practitioners to navigate the system, through use of the “join” link that is emailed by the Full Commission ahead of time, to ensure competency with it (the link can be used more than once).  Alternatively, a request can be made to the clerk of the Panel Chair a few weeks in advance of the oral arguments to schedule a “meeting” through Microsoft Teams.

    Some witnesses have trouble securing a strong internet connection, which can cause massive delays, particularly if the witness keeps freezing or dropping the connection, and thus necessitating a pause in the hearing.  As such, reaching out to plaintiff’s counsel a few days before the hearing to discuss plans to ensure that all witnesses have a strong internet connection, as well as a device to access the virtual hearing, is advisable.  

    Asking the Deputy Commissioners for a pre-trial conference via WebEx to work out connectivity issues, especially for pro se claimants, is another excellent resource.  In addition to working out connectivity issues, it also gives Deputy Commissioners a chance to explain to pro se plaintiffs what will take place at the hearing and answer questions that may slow a hearing down.  Additionally, some Deputy Commissioners have been utilizing the pre-trial conference to explain the Pre-Trial Agreement to pro se plaintiffs and ask the pro se plaintiff to stipulate to everything in the Pre-Trial Agreement if there is no disagreement.

    As for exhibits, an organized binder of all bate stamped exhibits the parties intend to admit should be prepared well in advance of the hearing and provided to each witness ahead of time, as a substantial amount of time can be wasted trying to identify what document the witness is to review during the hearing.  In addition, while WebEx allows documents to be pulled up on the platform for everyone to see, it is a slow process and some witnesses may not be able to review the document and testify on video at the same time.  As far as video evidence is concerned, each Deputy Commissioner seems to have a different protocol for submission of the video, as it cannot be uploaded through the Industrial Commission portal.  For example, one Deputy Commissioner requested that the video be mailed to the Industrial Commission on a USB prior to the hearing, while another requested that the video or video link be sent by email and then be mailed to the Industrial Commission post-hearing if admitted into evidence.  As such, it is advisable to contact your Deputy Commissioner in advance of the hearing to determine how he or she would like the video to be accessible during the hearing and for entry into evidence.

     

     


  • 31 Aug 2021 10:39 AM | Jennifer Edwards (Administrator)

    By Thomas Segars, Ellis & Winters, LLP

    Imagine yourself combing the aisles of the local Trader Joe’s with your brood in tow. You are minding your own beeswax when, above the drone of swarming shoppers, you hear a buzz about a new product: “100% New Zealand Manuka Honey.” As you grab a jar off the shelf, what would you reasonably believe was inside?

    The United States Court of Appeals for the Ninth Circuit examined this question recently and offered some lessons about litigating section 75-1.1 claims in the process.

    The Comb Foundation

    Moore v. Trader Joe’s Co. was a putative class action brought under the consumer-protection laws of California, New York, and North Carolina. The plaintiffs purchased a Trader Joe’s store brand of “100% New Zealand Manuka Honey” that listed “Manuka Honey” as its sole ingredient. Disappointed to learn that only 57.3% to 62.6% of the honey inside actually derived from Manuka flower nectar, the plaintiffs sued. They claimed that the product was adulterated because it had been made, in part, with the nectar of other types of flowers. They also claimed that Trader Joe’s label was misleading because it implied that the honey inside was derived exclusively from the nectar of Manuka flowers.

    Trader Joe’s moved to dismiss the complaint on two grounds: (1) that the label was not misleading and the product was not adulterated as a matter of law, and (2) that the state-law claims were preempted by federal labeling laws. The trial court agreed with Trader Joe’s on both points and dismissed the case. The plaintiffs appealed.

    Let Me Tell You About the Birds and the Bees

    The Ninth Circuit began with some basic facts of life about honey—some of which you probably knew, but others that you may not have. 

    Honey is made by bees. Bees forage among flowers to collect nectar for honey. By examining a honey’s pollen content, you can estimate the relative concentrations of different floral nectars.

    The FDA provides guidance on how honey may be labeled for sale. Although all honeys are made from a combination of different floral nectars, these are not considered separate ingredients. For labeling purposes, honey is a “single-ingredient food.” The FDA allows a honey producer to label honey as being derived from a particular plant or blossom (e.g., clover honey, tupelo honey, or orange blossom honey) if it can show that the plant or blossom on the label is the “chief floral source of the honey.”

    The Manuka bush is a plant native to Australia and New Zealand. Honey derived from the Manuka’s floral nectar contains methylglyoxal, an organic compound believed to have antibacterial and other beneficial properties. As Manuka honey has grown in popularity, producers have developed a system for grading the purity called the “Unique Manuka Factor” or “UMF” system. The UMF system grades a honey’s concentration of methylglyoxal on a scale of 5+ (at the low end) to 26+ (at the high end).

    The “Reasonable Consumer” Is a Busy Bee

    The Ninth Circuit affirmed the dismissal, reasoning that the plaintiffs’ claims failed as a matter of law.

    The court made quick work of the adulteration claim. That claim rested exclusively on the fact that the bees had visited different flowers—not only Manuka blossoms. This was not adulteration, the court explained: “Bees make the honey, without any input from Trader Joe’s or any other manufacturer.”

    As to the claim that Trader Joe’s label was misleading, however, the Ninth Circuit did something more unusual. Although reasonableness is almost always a question of fact that cannot be resolved on the pleadings, the Moore court held that it was unreasonable as a matter of law for a consumer to be misled by Trader Joe’s label. To reach that result, the court turned to the fabled “reasonable consumer.”

    Under section 75-1.1 and the other state laws invoked, the Moore court explained, “claims based on deceptive or misleading marketing must demonstrate that a ‘reasonable consumer’ is likely to be misled by the representation.” For example, the Eastern District of North Carolina’s Solum v. CertainTeed case, to which Moore cited, held that “reasonableness” requires the recipient of the representation to use “reasonable care to ascertain the truth.” 

    The Ninth Circuit reasoned that “other information about Trader Joe’s Manuka Honey would quickly dissuade a reasonable consumer from the belief that Trader Joe’s Manuka Honey was derived from 100% Manuka flower nectar.” 

    What information should have tipped off the reasonable consumer? The Ninth Circuit identified three points:

    • ·       First, it is impossible to make honey that is 100% derived from one floral source. The court discussed the “foraging nature of bees” and charged the reasonable consumer with knowing that “it is impossible to exercise complete control over where bees forage down to each specific flower or plant” and that “[u]nlike other domesticated animals, bees cannot be commanded or directed.”
    • ·       Second, the comparatively low cost of Trader Joe’s product should have been a “signal” that the honey inside had a lower concentration of honey derived from Manuka flower nectar.
    • ·       Third, the Trader Joe’s label did include the product’s “10+” rating on the UMF scale. The court explained that “[r]easonable consumers of Manuka honey would routinely encounter such ratings and would likely have some knowledge about them.”

    The Ninth Circuit similarly rejected the plaintiffs’ claim that Trader Joe’s label was misleading because it claimed a single ingredient: Manuka honey. The Moore court looked to the FDA guidelines for labeling honey. It concluded that Trader Joe’s single-ingredient label was appropriate under those guidelines. “Manuka honey,” it reasoned, meant “honey whose chief floral source is Manuka.” Even plaintiffs’ analysis that Trader Joe’s product was 57.3% to 62.6% pure confirmed that this was true.

    Having concluded that the label was not misleading as a matter of law, the Ninth Circuit did not need to decide whether federal labeling laws preempted plaintiffs’ state-law claims.

    Have Consumers Been Stung?

    The Moore court charged the reasonable consumer with knowledge of several nuanced facts about bees, honey, and how Manuka honey is graded.  Scholars are already debating whether this was fair. See, for example, Rebecca Tushnet’s thought-provoking post on the case.

    After all, the rare cases that do hold that it is unreasonable as a matter of law for consumers to be misled tend to read like a page from Captain Obvious’s diary. The reasonable consumer is expected to know, for example, that

    • ·       there is no fruit in “Froot Loops”;
    • ·       Cap’n Crunch “Crunch Berries” are not actual berries;
    • ·       soymilk does not come from cows; and
    • ·       a cracker is a “dry thin crispy baked product” and is “not composed of primarily fresh vegetables.”

    On the other hand, Manuka honey is a “niche, specialty product”—not a “low-cost, everyday item[]” like shelf-stable parmesan cheese. The Moore court seized on this fact to explain why a reasonable consumer of Manuka honey would be expected to exercise greater diligence, to have a keener price sensitivity, and to have known about the UMF grading system. In short, the Ninth Circuit expects the reasonable Manuka honey consumer to be a busy bee.

    The Flight Path for Section 75-1.1 Litigants

    Moore is a helpful datapoint for anyone litigating section 75-1.1 claims about deceptive or misleading advertising or labeling. It provides new insight into the mind of the elusive reasonable consumer.

    Moore’s use of FDA guidelines and industry standards like the UMF grading system is notable, too. Although the Ninth Circuit never reached the question of whether federal labeling laws preempted section 75-1.1, its analysis relied on those laws and similar standards. As we have discussed in the past, courts evaluating section 75-1.1 claims frequently borrow conduct standards from external sources. Here, both the FDA guidelines and the industry’s UMF grading system informed the court’s analysis of Trader Joe’s conduct.

    Do you find Moore’s reasoning sweet? Or did it leave you feeling stung? Either way, its lessons can inform your section 75-1.1 practice. And we hope we’ve left you a more educated consumer of honey heading into National Honey Month.


  • 29 Jul 2021 11:45 AM | Jennifer Edwards (Administrator)

    By Dan Strong and Becky Thornton, Teague Campbell Dennis & Gorham, LLP

    Article I, Section 15 of the North Carolina Constitution provides that “[t]he people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.”  N.C. Const. art. I, § 15.  The North Carolina Constitution implements this provision in Article IX, Section 2 by commanding the General Assembly to “provide by taxation and otherwise for a general and uniform system of free public schools ... wherein equal opportunities shall be provided for all students.” N.C. Const. art. IX, § 2. On June 11, 2021, the North Carolina Supreme Court determined that this constitutional protection extends to instances of extreme bullying in public schools, thereby permitting claimants to bring a tort action against a school system based on allegations that it failed to act.

    The Lawsuit

    In Deminski v. State Board of Education, the North Carolina Supreme Court considered whether a tort action for violation of these two constitutional provisions could be filed against the State Board of Education. Ashley Deminski, guardian ad litem of her three elementary school aged children in Pitt County, North Carolina, filed suit against the State Board of Education and Pitt County Board of Education alleging the three students had been bullied and sexually harassed by other students. The minor plaintiffs and Deminski repeatedly informed teachers and school administrators about the bullying. The County Board of Education is alleged to have been made aware of the incidents. School personnel reportedly informed Deminski that there was a “process” that would “take time.” However, as time progressed, plaintiff alleges the bullying and harassment continued with no real change. When the school did take action to resolve bullying against one of the three students by modifying one bully’s schedule, it resulted in that bully having more time in the other two bullied students’ classes. The three students eventually transferred to a new school effective only for the 2016-2017 school year. The transfer was later modified to be effective for as long as Deminski and the minor plaintiffs resided at their then-current address.

    The Deminski suit included claims for violations of Article I, Section 15 and Article IX, Section 2, alleging that the minor plaintiffs were denied their right to a sound basic education as a result of being in a hostile academic environment where the School Board entities: “had substantial control over the harassing conduct;” “had actual knowledge of the harassing conduct;” and “exhibited deliberate indifference to the harassing conduct.” Both the State Board of Education and Pitt County Board of Education moved to dismiss the Complaint. The State’s motion was granted in full. Pitt County’s motion was denied, in part, allowing the Constitutional claims to proceed. Pitt County appealed.

    The Court of Appeals Reverses

    The Court of Appeals reversed the trial court’s order denying the motion to dismiss, holding that the constitutional guarantee to a sound basic education extended no further than an entity making educational opportunities available. A dissenting opinion, however, concluded that the minor plaintiffs had sufficiently alleged that Pitt County failed to provide them with an opportunity to receive a sound basic education based on the school’s deliberate indifference to a hostile classroom environment. Deminski appealed to the North Carolina Supreme Court based on the reasoning outlined in the dissenting opinion.

    The Supreme Court’s Ruling

    The Supreme Court, quoting Leandro v. State, 346 N.C. 336, 345, 488 S.E.2d 249, 254 (1997), stated that “[a]n education that does not serve the purpose of preparing students to participate and compete in the society in which they live and work is devoid of substance and is constitutionally inadequate.” An affirmative duty is placed upon the government “to guard and maintain” a student’s right to a sound basic education. The Supreme Court found that Deminski had sufficiently pleaded the elements required to assert a Constitutional claim against Pitt County, including the first and third elements that the violation was undertaken by a state actor and that there was no “adequate state remedy” for the alleged injury. Interestingly, when analyzing whether Deminski had alleged a “colorable constitutional claim,” the Court adopted the rationale of the dissent issued in the Court of Appeals. The Supreme Court found that the school’s “deliberate indifference to ongoing student harassment created an environment in which plaintiff-students could not learn.” The Court noted that “the right to a sound basic education rings hollow if the structural right exists but in a setting that is so intimidating and threatening to students that they lack a meaningful opportunity to learn.”

    Deliberate Indifference

    A claim for deliberate indifference, which requires a showing that the defendants actually knew of and disregarded the alleged activity, arises in several types of actions. In § 1983 claims alleging violation of the Eighth Amendment protection against cruel and unusual punishment, allegations of deliberate indifference require a showing that the actor actually knew of and ignored a detainee’s serious need for medical care.Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 1999). Mere negligence or, from a medical provider’s perspective, medical malpractice, is insufficient to establish a violation of the Eight Amendment rights of an inmate.  Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). These deliberate indifference claims involve both an objective and subjective component. As to the objective component, a plaintiff must first show that the alleged deprivation is sufficiently serious, and as to the subjective component, a plaintiff must show that the defendants acted with deliberate indifference to the inmate’s safety. Farmer v. Brennan, 511 U.S. 825 (1994).

    Monell claims, which refer to the 1978 United States Supreme Court case Monell v. Department of Social Services, are specific to § 1983 claims against a local government entity as an employer, supervisor, and policymaker. 436 U.S. 658 (1978). For a Monell claim to survive, the plaintiff must establish that a public entity had an unconstitutional policy either by an actual written policy or an unofficial custom or practice exercised repeatedly. Monell claims can include allegations that the municipality was deliberately indifferent in a failure to train or supervise the government employee. While most frequently applied in policing or jail operations, Monell claims can also be asserted in employment-related discrimination claims.

    Deliberate indifference claims have been applied in student-on-student harassment in other contexts and jurisdictions. In 1999, the United States Supreme Court held that a student can maintain a private cause of action against a school board under Title IX in cases of student-on-student sexual harassment, “but only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities.” Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999). Under the Court’s holding in Davis, a plaintiff must allege that the deliberate indifference, at a minimum, caused the plaintiff to undergo harassment or make them vulnerable to it. Importantly, the Court found that a Title IX fund recipient would only be deemed “deliberately indifferent” to acts of student-on-student harassment where the “recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Notably, the Court found that a mere decline in grades is not enough to survive a motion to dismiss but that the drop-off in grades could provide necessary evidence of a potential link between the harassed student's education and the harasser's misconduct. The harassed student's ability to state a cognizable claim depends equally on the alleged persistence and severity of the harasser's actions and the board's alleged knowledge and deliberate indifference. In a recent case applying Davis, the United States District Court for the Eastern District of North Carolina found that, to be actionable, the “student-on-student harassment must effectively deny the victim access to the school's educational resources and benefits.” Jane Doe, by her next friend, Tonisha Pullen-Smith, Plaintiff, v. Cumberland County Board Of Education, et al., No. 5:20-CV-523-FL, 2021 WL 2546456, at *5 (E.D.N.C. June 21, 2021). The Court stated that “[w]hile deliberate indifference is a high standard that requires more than a showing of mere negligence, a half-hearted investigation or remedial action will [not] suffice to shield a school from liability.” Id.

    Expanded Claims

    Prior to the ruling in Deminski, North Carolina Courts had never “recognized abuse, even repeated abuse, or an abusive classroom environment as a violation of the constitutional right to education.” Deminski v. State Bd. of Educ., 269 N.C. App. 165, 174, 837 S.E.2d 611, 617 (2020); see also Doe v. Charlotte-Mecklenburg Bd. of Educ., 222 N.C. App. 359, 731 S.E.2d 245 (2012) (holding that the education rights recognized by the state constitution related to the nature, extent, and quality of the educational opportunities made available to students in the public school system). In Doe, The Court previously recognized that a student was entitled to receive “a sound basic education” in public school which included, among other things, the ability to read and write; fundamental knowledge of geography, history and basic economic and political systems; as well as sufficient academic and vocational skills to enable the student to be successful in post-secondary education, vocational training or employment pursuits. Because “all sound basic education” claims prior to Deminski focused solely on educational opportunities made available to students, deliberate indifference claims were not recognized as “colorable constitutional claims” and would therefore be subject to dismissal. 

    Under Deminski, however, the Court has expanded the definition of colorable constitutional claims to include situations where a student is not provided with a meaningful opportunity to learn due to the deliberate indifference of a state actor. The expansion of the concept of deliberate indifference to claims for violation of Article I, Section 15 and Article IX, Section 2 creates several areas of uncertainty. One notable question left unanswered in the Deminski opinion, which analyzed a claim of deliberate indifference only against a county school board, is how to apply such claims against individual educators or school administrators. In fact, it now appears likely that individuals acting in their official capacity could be subject to § 1983 claims based upon a theory of deliberate indifference. Other questions that the Court did not address are the objective and/or subjective elements of a deliberate indifference claim under these circumstances, nor did it address whether the claims would be treated similarly to those asserted under Title IX. An additional consideration is that it now appears likely that the State Board of Education could be subject to deliberate indifference claims as well, since the Supreme Court in Leandro held that the State has the ultimate responsibility to provide students with access to a sound basic education. This specific issue was not addressed in Deminski because the trial court’s complete grant of the State Board of Education’s motion to dismiss meant the issue was not considered on appeal. Ultimately, the Deminski opinion presents issues of first impression that will likely result in additional appeals throughout the course of the litigation.


  • 29 Jul 2021 10:32 AM | Jennifer Edwards (Administrator)

    By Lisa Frye Garrison, Garrison Law Group, PLLC

    On June 18, 2021, Governor Cooper signed into law Session Law 2021-47 (Senate Bill 255), which makes two changes in the procedures for medical malpractice cases in North Carolina.  The first involves the handling of final jury instructions.  The second involves designating a specific superior court judge to preside over all proceedings in each medical malpractice case.  

    First, Rule 51 of the NC Rules of Civil Procedure has a new subsection “(d),” which applies to “[f]inal instructions to the jury. – [i]n civil cases subject to G.S. 90-21.11(2) [the statute that defines a “medical malpractice action”].” In such cases, “the court shall reduce the oral instructions given to the jury to writing. Upon the jury retiring for deliberation, the court is encouraged to and may provide the jury a written copy of the oral instructions for the jury to take into the jury room during deliberation.” (Emphasis added) In short, judges in these future medical malpractice trials are not required to give the jury a written copy of their final instructions, but they are “encouraged to” do so, and are always required to reduce their final instructions to writing. Pursuant to subsection “(1.c)” of SL 2021-47, this new Rule 51(d) only applies to “actions filed on or after” October 1, 2021.

    Second, North Carolina General Statute § 7A-47.3—which addresses superior court judges’ rotations, assignments, and sessions—has been amended to add a new subsection "(e)." This new section states, “The senior resident superior court judge, in consultation with the parties to the case, shall designate a specific resident judge or a specific judge assigned to hold court in the district to preside over all proceedings in a case subject G.S. 90-21.11(2)..” (Emphasis added.) Pursuant to subsection “(1.c)” of SL 2021-47, this new subsection “(e)” is effective October 1, 2021. It should apply to all pending medical malpractice cases at that time, as well as all cases filed thereafter.

    Section (e) does not indicate that the Senior Resident must select one judge who will hear all medical malpractices cases filed in a given district; the phrase “in a case” suggests that a judge is designated for each individual case. That said, the judge designated must “preside over all proceedings in” that case. Presumably, that will include all dispositive motions, discovery motions (including the process of entering a discovery scheduling order), the trial, pre-trial and post-trial motions, and any settlements requiring court approval.

    Notably, the Senior Resident has two options, after consulting with the parties: (1) designating a “resident judge” or (2) designating “a specific judge assigned to hold court in the district.” One open question is whether non-resident judges designated in a given case may only hold hearings in their designated cases while they are “assigned to hold court in the district.” It is possible that the phrase “in the district” only applies to the “designation” period—when the judge is selected by the Senior Resident—and not to the entire life of the case. If so, non-resident, designated judges for particular cases might be able to hold hearings in their assigned cases on occasions when they are not actually sitting in the district, as Rule 2.1 appointed judges often do. It will be interesting to see how judges and parties—particularly parties who do not want to travel to a non-resident judge’s district for hearings—interpret the “in the district” language and its implications for these jurisdictional issues.

    Having specific judges assigned to handle each future medical malpractice case will represent a significant change for counsel, parties, and the court. For example, having only one judge who can hear motions in each case may slow down the parties’ ability to calendar motions for hearings that require prompt attention, depending on how the “in the district” language discussed above is interpreted. On other hand, this new designation process may lead to efficiencies and continuity within each case, as the judge assigned will become quite familiar with the parties and the issues involved, as well as the specialized rules applicable to this area of law. This new designation process may also provide opportunities for judges with interests and expertise in medical malpractice cases to handle them more frequently, if Senior Residents are inclined to focus the assignments of these cases accordingly.


  • 27 May 2021 9:29 AM | Jennifer Edwards (Administrator)

    By La-Deidre Matthews, Parker Poe Adams & Bernstein, LLP

    On March 11, 2020, the World Health Organization (WHO) declared the novel coronavirus (COVID-19) a global pandemic. More than a year later, many Americans are resuming their normal lives as vaccinations become more readily available and prevention guidelines become more relaxed. However, COVID-19 still poses a risk, especially amongst individuals with jobs that require them to be in close contact with someone who is infected with the virus. Is contracting the disease while on the job a compensable action under North Carolina’s workers’ compensation laws? Like with most legal inquiries, it depends. Pursuant to the North Carolina Workers’ Compensation Act, an employee must show that they contracted COVID-19 due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, rather than an ordinary disease of life to which the public is equally exposed. While no case law currently exists that addresses whether COVID-19 meets the requirements of a compensable disease under the NC Workers’ Compensation Act (the Act), a review of the pertinent statutes may shed light on the inquiry.

    In North Carolina, workers compensation claims are divided into two categories: injuries that occurred by an accident or specific traumatic event, and those caused by an occupational disease. N.C.G.S. § 97-53 enumerates a list of compensable occupational diseases covered under the Act. COVID-19 is not one of the identified diseases. Several states have enacted legislation and/or issued executive orders that expand workers’ compensation for certain workers who contract COVID-19; however, North Carolina is not among them. In May 2020, House Bill 1056 proposed an amendment that would provide coverage for first responders and healthcare workers who contract COVID-19, but the proposed legislation ultimately failed.

    Diseases such as COVID-19 not specifically included under N.C.G.S. § 97-53 may still be compensable under a “catchall” provision of the Act if it is proven to be contracted due to “causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment” and is not an “ordinary disease of life to which the general public is equally exposed outside of the employment.” These first two elements of the analysis are satisfied where an employee can show that her employment exposed her to a greater risk of contracting the disease than the public generally. Further, proof of a causal connection between the disease and the employment must exist. The third element may be proven by circumstantial evidence and is satisfied if the employment significantly contributed to, or was a causal factor in, the disease’s development. Relevant considerations include the extent of exposure to the disease during employment, the extent of exposure outside employment, and the absence of the disease prior to the work-related exposure as shown by the employee’s medical history.

    In totality, the factors tend to indicate that an employee who contracts COVID-19 simply by being in close proximity to an infected co-worker would probably not be entitled to workers’ compensation benefits absent proof that the nature of her occupation presented unique circumstances, making her more susceptible to contracting the virus while on the job than the general public. COVID-19 has proven to be a contagious and fast-spreading virus, which makes proving these factors even more difficult. To date, there have been almost 33 million reported cases of the disease in the United States. However, there are certain occupations that would arguably have a higher probability of exposure than the general public. The Occupational Safety and Health Administration (“OSHA”) has identified several occupations as high exposure risk occupations, including healthcare employees, such as healthcare delivery and support staff and laboratory personnel; morgue workers; and mortuary workers.

    Whether a disease is occupational is a fact specific-analysis and simply being exposed to COVID-19 is not enough to meet the burden of proof under state law. Although the number of confirmed cases in the U.S. is gradually decreasing, the virus continues to upend the lives of many Americans. Employers must remain vigilant and prepare for issues that arise as employees transition back into the workplace. Keeping employees up-to-date on information provided by the WHO, Centers for Disease Control and Prevention, and the North Carolina Department of Health and Human Services as well as encouraging good hygiene practices are a few ways employers can mitigate the impact of COVID-19 in their respective places of work. During the breakout session at the 44th Annual Meeting and Spring Program, the Employment Practice Group looks forward to providing more guidance and discussion surrounding issues employers will face as they welcome employees back into the workplace.

    N.C.G.S. §§ 97-1 et al.

    An Act Amending the Workers’ Compensation Law to Provide Occupational Disease Coverage for First Responders and Health Care Workers who Contract Coronavirus, H.B. 1056, 2019-2020 Session (N.C.). 

    N.C.G.S. § 97-53(13).

    Jones v. Steve Jones Auto Grp., 200 N.C. App. 458, 463, 684 S.E.2d 497, 500 (2009) (citing Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983)).

    Id.

    Carroll v. Town of Ayden, 160 N.C. App. 637, 642, 586 S.E.2d 822, 826 (2003) (citing Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983)).

    CDC, Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by State/Territory, https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases (last accessed May 25, 2021).

    OSHA, Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/sites/default/files/publications/OSHA3990.pdf.


  • 25 May 2021 10:36 AM | Jennifer Edwards (Administrator)

    By Jennifer A. Milak, Esq.

    Few rights are as deeply embedded in our body of laws as the right to a trial by jury. This right, which applies to criminal and civil defendants, is enshrined in both the U.S. Constitution and the laws of all 50 states.

    In North Carolina, Article I, Section 4 of our State Constitution provides:

    No person shall be convicted of any crime but by the unanimous verdict of a jury in open court.

    Section 25 confirms this same right applies to civil defendants, furthering:

    In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.


    Per North Carolina General Statute § 7A-196, the parties in all civil cases in North Carolina, have a right to a trial by jury of 12, unless waived by the parties. The number twelve has long been the convention in civil and criminal trials and has become so inextricably woven into the fabric of our legal system that it has remained largely unchallenged. But, COVID-19 has introduced a challenge to our state courts in the ability to safely seat 12 jurors for jury trials. Thus, state court districts are asking parties to waive their right to 12 jurors for health and safety reasons.


    Federal courts in North Carolina have a different system that has existed since the United State Supreme Court’s trilogy of 1970s cases - Williams vs. Florida, Apodaca vs. Oregon, and Johnson vs. Louisiana. Those cases ruled that juries of fewer than twelve are constitutional such that federal courts nationwide have routinely adopted rules allowing seating as few as six or eight jurors in civil trials. This important change has caused the behavior and social science communities to extensively study the effects of smaller jurors. The primary question: is there a good reason for defendants to insist upon twelve?

    The answer from the behavioral and social science communities is a firm and resounding yes. Ever since SCOTUS ruled that fewer than twelve is perfectly acceptable, experts and social scientists have confirmed that when it comes to the specific number, twelve is neither arbitrary nor a stale tradition that is easily dispensed. In fact, on matters concerning an individual’s personal liberties or financial and reputational future, there are compelling reasons to insist upon more eyes, ears, and brainpower.

    Justice is Best Served by the Dozen.

    For well over a decade, research has overwhelmingly confirmed that when it comes to making critical decisions about a defendant’s welfare, a larger group is far better than a smaller one. According to a 2004 American Psychological Association Article, entitled “Are Six Heads as Good as Twelve?,” the consensus in the psychological community is that justice is far better served by larger groups. To support this point, the article cites numerous findings from social studies comparing the decision-making power of smaller groups as compared to larger ones. These findings were subsequently confirmed in a 2020 Judicature piece authored by Patrick Higginbotham, Lee Rosenthal, and Steven Gensler entitled “Better by the Dozen: Bringing Back the Twelve-Person Civil Jury.” The article masterfully summarizes the social science findings on the superiority of larger juries and can be distilled as follows.

    Reason 1: Larger juries are substantially less likely to extend outlier verdicts.

    Citing a 1971
    Chicago Law Review article on the diminution of juries in federal cases, Higginbotham, Rosenthal, and Gensler explain that a six-man jury is four times more likely to return an abnormally high or low damages award than its twelve-person counterpart. Per extensive studies of group behavior, in a smaller group, one individual’s extreme opinion is far more likely to sway the entire group’s decision. Conversely, in a larger pool, one outlier’s opinions have far less pull and face exponentially increased resistance.

    This begs the question: why does this particular reason matter, and in particular, why does it matter to civil defendants?

    Juries are (ideally) the voice of the people. Their decisions serve justice and the greater good when they follow closely to the consensus of the greater communities they represent. As a general principle, communities tend to hold consensus views that fall between two extremes. Larger juries are more likely to rule in accordance with the consensus view, not the extreme one, thus making them more accurate representations of the community’s opinions, beliefs, and values.

    As far as civil defendants are concerned, extremism is not in their best interest. After all, it is very rare that juries will return a $0 award for sympathetic plaintiffs. Even a defendant who is found liable may still walk away relatively unscathed if the jurors equivocate on damages. In fact, in many cases, the best-case scenario for a civil defendant involved in a case with challenging facts is a modest damages award. Frequently, juries reach a middle-of-the-road consensus in complex cases: find the defendant liable, but spare the sting of an outrageously high award for the plaintiff.

    Reason 2: Larger groups are wired to make better decisions.

    Higginbotham, Rosenthal, and Gensler do not mince words in proclaiming larger groups “better” per the social science. “Better,” in this case, means objectively rooted in logic and facts. Studies have consistently proven that larger groups show better collective recall of the evidence and, as a result, less reliance on conclusory statements and emotional appeals. Higginbotham, Rosenthal, and Gensler report:

    [T]he larger a workable decision-making group, the better the decisions will be because of the increased resources more group members provide. If six heads are better than one, 12 are in most respects better than six or eight.

    Social studies have also shown that larger groups spend more time deliberating. In some cases and for some parties, the increased deliberation works against the client’s interest. But in complex, high-stakes litigation, the increased deliberation time is beneficial: not only is it unlikely to sap the court’s or parties’ financial resources, but as Higginbotham, Rosenthal, and Gensler note: “given that the parties’ fates and fortunes are on the line, evidence that larger juries spend more time deliberating might be seen as a virtue, not a vice.”

    Reason 3: Larger juries more likely to hang.

    Studies have consistently shown that smaller juries tend to communicate in a more ordered fashion, but larger groups are more likely to vigorously debate the issues. The aforementioned APA article notes that because of this, a dissenter in a larger jury may be more likely to pick up an ally or two and collectively resist the pressure to, as Higginbotham, Rosenthal, and Gensler write, “yield to the will of the larger group.” Logically, this scenario is far less likely in a smaller group.

    In other words, more heads mean a greater likelihood that two or more jurors will join forces to resist the will of the masses. Alternatively, jurors will reach a consensus on liability but diverge on damages. They will agree, in other words, that the defendant was responsible for the injury at issue but then will compromise on the value of the claim. So, while the defendant will still lose, he or she will not lose as severely. In still other cases, the two (or more) holdout jurors may succeed in convincing the group to side with them on both liability and damages.

    Even a hung jury, however, carries benefits for defense counsel. First of all, as noted, a divergence on damages can save a defendant substantially. More significantly though, even with weaknesses in a case, or the presence of a particularly sympathetic plaintiff or emotionally charged story, the likelihood of one or two jurors joining to resist the collective will can erode the swaying power of bad facts. However, as that group shrinks, so do the defense’s chances of a holdout juror.

    Defense Counsel: You’ve Simply Got to Fight for Your Right to Twelve.

    The ongoing social science and empirical, behavioral research shows the undeniably negative effects of smaller jury pools. The evidence indicates that smaller juries are not  only composed differently, but also are wired to think and decide differently than larger ones.

    As such, per Higginbotham, Rosenthal, and Gensler’s call, it is “time to stop doubting these findings” and for counsel to acknowledge that 12 is not arbitrary: it is essential to fairness and equity in both process and outcome for your defendant clients.


  • 24 Mar 2021 2:00 PM | Lynette Pitt (Administrator)

    By Mark A. Stafford and Candace S. Friel, Nelson Mullins Riley & Scarborough, LLP

    We sometimes think that the drafters of N.C. R. Civ. P. Rule 26(b)(5) sought only to test the pain thresholds of lawyers: Privilege logs are the bane of existence for most attorneys—expensive, time consuming and generally a nuisance. In practice, few of us focus on privilege logs early in the process of obtaining and reviewing client documents, but failing to do so can be dangerous.

    Without using the term “privilege log,” N.C. Rule 26(b)(5) (as well as the cognate federal rule) requires that claims of attorney-client privilege, work product, and joint defense or peer review privileges must be invoked at the time of service of the discovery responses or “when the party withholds the information.” This is often made express in case management orders that require a party to serve a privilege log “contemporaneously with its objection.” E.g., Window World of Baton Rouge, LLC v. Window World, Inc., 2019 NCBC LEXIS 54, *89 (N.C. Sup. Ct. Aug. 16, 2019). Not doing so can be deemed a waiver of the privilege.

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