Featured Articles

By:   Jeri Whitfield and Lisa Shortt, Fox Rothschild, LLP

In five opinions authored by Chief Judge Linda McGee, with concurrences by Judges Dietz and Collins, the North Carolina Court of Appeals affirmed the Industrial Commission and found that Continental Tire The Americas (Continental) did not expose its employees to asbestos sufficient to cause any of the employees’ alleged asbestosis or asbestos-related cancers.  The Hinson opinion applies to over 150 workers’ compensation cases filed in 2008, following the closure of Continental’s Charlotte tire manufacturing plant.

The Plaintiffs filed occupational disease claims with the Industrial Commission alleging they suffered from asbestosis and/or asbestos related cancers as a result of exposure to asbestos materials inside the tire manufacturing plant.  Plaintiffs obtained these diagnoses of asbestosis and/or asbestos related cancers in 2008 following mass screening exams organized by Wallace & Graham.  They alleged they were exposed to asbestos in all areas of the plant due to damaged or deteriorated asbestos-containing pipe insulation, manipulation and handling asbestos-containing gaskets, brake dust on forklifts, and exposure to asbestos-contaminated talc.  Based on decades of epidemiologic and industrial hygiene studies, Continental argued that even if Plaintiffs’ claims of exposure were true, such minute, episodic exposures would not be sufficient to cause or contribute to asbestosis or asbestos related diseases.  Moreover, based on its own medical experts and the Plaintiffs’ own treating physicians, Continental denied that the diagnoses of asbestosis were valid. Having multiple manufacturing facilities around the world from which there were no claims of asbestosis, Continental denied that working in its North Carolina facility could cause the asbestosis epidemic being claimed, and sought a full trial on the scientific issues. 

Consolidation provided an efficient way to address common questions arising in the claims. The Commission consolidated the cases and established a procedure to allow the parties to take depositions and have expert witnesses testify live, unlike most Industrial Commission cases.  Given the volume of cases, the parties presented a full trial on liability using five Bellwether Plaintiffs selected by the Plaintiffs’ counsel to represent the long-term employees from various areas of the plant.  As noted by the Court of Appeals, this procedure flipped the normal progression by deciding the issue of Continental’s liability first, rather than determining whether the Plaintiffs had the disease claimed.  Thus, the trial addressed the work-related issues common to the consolidated Plaintiffs and the relevant scientific and medical research to determine whether the type, quantity, and duration of the alleged exposures to asbestos at the plant could cause or contribute to any asbestos-related diseases.  At the outset, the parties agreed that the liability holding would be applicable to all Plaintiffs.

The cases were heard by Deputy Commissioner Stephen Gheen on a special-set basis at various locations over the course of 38 days of live testimony, most of which involved expert witnesses, beginning in February 2011 and concluding in February 2013.  When the trial was nearly complete, Plaintiffs’ introduced new allegations that the talc used by Continental was contaminated with asbestos (it wasn’t)—thus resulting in a mini-trial on Vermont talc.   

The diagnoses of asbestosis were based on borderline B-reads of poor quality x-rays.  A battle of the experts as to whether the Plaintiffs had the disease claimed ensued.  However, all parties agreed that although experts may occasionally vary in interpreting an x-ray, that to have over a hundred cases where the defense experts viewed the radiology as normal and the Plaintiffs’ experts found abnormalities does not indicate a difference of opinion; it indicates bias.  Most of the Plaintiffs’ diagnoses of asbestosis were based on 1/0 B-readings of their chest x-rays as “consistent with asbestosis,” although a score of 1/0 is a borderline determination.  The same radiographs were read by defense experts who rated them as 0/0 or completely normal.  When real abnormalities were found by chest x-ray, Plaintiffs’ experts ignored the medical conditions reflected in Plaintiffs’ medical records as the actual cause (i.e. pneumonia, rib fractures, etc.) and attributed all abnormalities to asbestosis.  Because B-readers are trained to read x-rays to a standard and a difference of 0/0 to 1/0 is an unacceptable result, the Commission agreed that this consistent disparity raised the issue of B-reading bias by one side. 

Pathology showed which experts were reliable.  Thus, when several Plaintiffs died of unrelated conditions, over Plaintiffs’ objections, Continental sought and obtained a standing order to be allowed to obtain autopsies and lung samples, which allowed Continental to obtain definitive pathological evidence of the absence of asbestosis.  The medical experts agreed that the only definitive way to diagnose asbestosis is by pathology.  However due to the risks involved the procedure is not done while the patient is alive, it is performed at autopsy.  In several cases, Plaintiffs’ counsel failed to notify Defendant that a claimant died prior to burial.  Nonetheless, Defendant obtained lung tissue from Bellwether Plaintiff Hinson (who was alleged to have been the most heavily exposed employee in the plant) and four other long-term employees who worked in various areas of the plant.  The lung tissue analyses revealed that none of the five claimants had asbestosis and none of the five claimants had a level of asbestos fibers in their lungs indicative of an occupational exposure to asbestos.  Plaintiffs’ only medical rebuttal to the pathology evidence was offered by Dr. Arthur Frank, an occupational medicine physician.  He did not look at the pathology reports, but he artfully opined:  I would say a radiologic diagnosis combined with a history of exposure is adequate.  He also opined that radiology was superior to pathology at diagnosing asbestosis.

The Motion to Compel High Resolution CT Scans to address the conflict among experts:  In addition to the consistent disparity of B-reads, which by definition are meant to be read to a consistent standard, Plaintiffs’ x-rays also failed to show other markers of asbestos.  Generally 80% of people diagnosed with asbestosis will have bilateral pleural plaques.  However, Plaintiffs’ experts in these cases only identified about 10% of the Plaintiffs as having any pleural plaques (findings also disputed by Defendant’s experts).  This is statistically improbable.  Plaintiffs’ counsel also instructed Plaintiffs to refuse high resolution CT scans, which scans are standard practice in actual cases of suspected asbestosis because a high resolution CT scan allows a superior view of the lungs.  In an effort to overcome the bias, early in the proceedings Continental requested the parties agree to an expert chosen by the Commission to B-read the x-rays or agree to another unbiased procedure.  Plaintiffs refused.  Defendant then moved to require the Plaintiffs to submit to high-resolution CT scans at its expense and agreed to be bound by the opinions of an independent expert chosen by the Commission.  Again, Plaintiffs objected.   The Commission noted that the Plaintiffs’ refusal could “cut both ways.” The Court held that the Industrial Commission could consider that Plaintiffs had the burden of proof.    Plaintiffs’ refusal to agree to certain more accurate medical procedures was also proper to consider.

Holding:  The Industrial Commission determined that conditions at Continental could not have exposed any of the employees to airborne asbestos of a type and in a sufficient amount as to cause or contribute to asbestosis or other asbestos-related disease.  This finding eliminated all of the claims due to lack of causation and “last injurious” exposure.  The Court of Appeals found ample evidence supporting the Industrial Commission ruling.

Practice Hints

Is there a question of disability?  Most of the Plaintiffs had 1/0 B-reads (a borderline diagnosis) with a Class I AMA impairment—which is normal lung function.  The Court analyzed the compensability of occupational diseases under the statute and stated that the employee must not only have an occupational disease, it must result in disability.  Query whether a Class I AMA lung function (normal) indicates any disability?

The amount of exposure impacts causation.  The Court analyzed the question of exposure dose as impacting the Commission’s causation analysis:  (1) Was the exposure sufficient to be a “significant causal factor” in the development of Plaintiffs’ alleged asbestosis; and (2) was the exposure “significantly greater” than the background environmental exposure.  . . . If the answer to either of these questions was “no,” then any alleged asbestos-related diseases could not be causally linked to work at the factory.  Continental introduced pre-abatement air monitoring surveys and many other surveys showing no evidence of asbestos in the plant air and dust levels well below OSHA permissible exposure limits.

Live expert testimony.  The Deputy Commissioner commented that having the expert witnesses testify live was superior to just providing depositions.  It allowed him to clarify any questions raised and evaluate credibility.

Colon cancer and tonsil cancer.  These conditions were found to be ordinary diseases of life to which the general public was equally exposed and not occupational diseases.  The record contains expert testimony regarding both cancers and the literature regarding any causal relationship to asbestos exposure.

Hinson v. Continental Tire The Americas, 832 S.E.2d 519, 2019 WL 4168922

 Welch v. Continental Tire The Americas, COA18-769, 2019 WL 4168915 (NC Ct. App. Sept. 3,   2019) unpublished

Epps v. Continental Tire The Americas, COA18-768, 219 WL 4168914 (NC Ct. App. Sept. 3, 2019) unpublished

Wilson v. Continental Tire The Americas, COA18-766, 2019 WL 4168910 (NC Ct. App. Sept. 3, 2019) unpublished

Newell v. Continental Tire The Americas, COA18-767, 2019 WL 4168912 (NC Ct. App. Sept. 3, 2019) unpublished

Dr. Andrew Ghio, Dr. Michael Alexander, Dr. Phil Goodman, Dr. Peter Barrett

Frank Dep. (07/21/2015) p. 43.

Id. p. 65.

Id. p. 68,

Id. pp. 28-30.

Id. pp. 44-5.

The purpose of a guard is to protect people from hazards associated with machinery. Guards also protect people from injuries that occur due to fatigue, distraction, and other forms of human failure. The illustrations below depict various hazards that may be encountered in industry.

Inrunning Nip Hazards

Inrunning Nip Hazard Example

An inrunning nip point is created by a mechanism having one or more rotating parts. Wherever parts rotate over, under, or near a stationary object, or wherever machine parts rotate in contact with or near other rotating parts (in opposing directions) an inrunning nip is formed. The danger of the inrunning nip hazard is that it draws objects into the mechanism, entrapping, and often flattening them. It can be difficult, if not impossible, to withdraw entrapped body parts from these hazards.

Shear Hazards

Shear Hazard Example

A shear hazard is created where two machine parts move across each other or move closely enough to cut or move an object that enters the system. Shear hazards frequently exist in machinery and equipment designed for cutting or punching.

Crush Hazards (Pinch Point hazard)

Crush Hazard Example
A crush hazard is created where two objects move toward each other or when a moving object approaches a stationary object. Injuries occur where body parts get caught or crushed between two parts/objects. Crush hazards frequently exist in machinery or equipment designed to bend, stamp, or form metals.

Snag Hazards

Snag Hazard Examples

A snag hazard is created where rotating or reciprocating equipment includes protrusions that can catch or snag on clothing or other passing objects. Snag hazards have the potential to quickly draw a person into moving equipment, creating entanglement hazards. They can also tear flesh or dismember body parts depending on their size, shape, and sharpness. While projections on rotating shafts can catch or snag clothing, a bare rotating shaft can present a snag hazard as well.

INDUSTRIAL MACHINE SAFETY

Manufacturers must assure that hazards are engineered out of the product during the design process. If a hazard is inherent and cannot be designed out of the machine, system, or process, the hazard must be guarded. In all cases, the user must be warned or instructed about dangers of the product. These steps form the fundamental principles and rules of practice for the safe and appropriate engineering of products, and are sometimes referred to as the hierarchy of hazard control.

The requirement for guarding and, more broadly, machine safety is reinforced by a number of government and industry oversight organizations.

Robson Forensic possesses an extensive technical library that houses standards and reference materials dating throughout the modern industrial era. Our experts provide forensic investigations on behalf of both plaintiffs and defendants involving a broad range of industrial, commercial, and consumer products.

For more information, access the complete article at

www.robsonforensic.com/guarding

By: Austin Starkey & Jason Ligon

As a litigation attorney, you could eventually need a financial expert in a case. But if you rarely or never engage one, you might be unsure of where to start that search. Do you consult your peers? Do you ask the professional who files your taxes? Do you just start Googling terms like “Certified Public Accountant”, “financial expert”, and “litigation support”?

As you research your options, you likely have your client’s budget in mind. You want to keep the cost low, but you have concerns about whether your potential expert can survive a Daubert challenge. Ultimately, you want to settle the case in a manner that satisfies your client.

If your tax accountant says they can probably handle the work, beware. The Certified Public Accountant (CPA) license spans a wide spectrum of subject matter; thus, a CPA in the context of audit or tax is vastly different from a CPA in the context of litigation support services. We encounter accountants moonlighting as financial experts and operating outside their depth all too often, and these would-be experts are vulnerable to criticisms of their CVs, if not a formal Daubert challenge. A typical accountant is likely ignorant not only of the specific procedures involved to provide litigation support services, but also the time necessary to complete them. In other words, they don’t know what they don’t know.

Qualified financial experts have the SKEET—Skills, Knowledge, Education, Experience, and Training— that most CPAs lack. These attributes are what make a “good” financial expert and help you win your case. The culmination of these five elements are necessary to make a well-rounded and effective expert. Experts must continually seek training and education to keep with changes in the business and accounting environment, much like attorneys must do as new laws and regulations are passed.

Additional certifications and advanced degrees are not always applicable to the careers of our accounting peers in audit and tax, but they are extremely important to obtain knowledge, education, and training necessary for being a financial expert. Such certifications require completing coursework, passing exams, and earning certain experience on top of the requirements to obtain a CPA license. Maintaining licenses and certifications requires annual continuing education on matters specific to providing litigation support services and opining as to financial damages. In addition to credentials, advanced college degrees add significant value to experts and strengthens your expert’s position during critiques of their CV or during a Daubert challenge. Financial experts have to consider all aspects of a business from operations to sales, accounting, and financial reporting, which cannot be obtained just by obtaining a CPA license.

An accountant or economist that is not regularly involved in litigation matters is frequently unaware of the methodologies associated with this subject matter. Could they explain before-and-after, market share, yardstick, or forecasting approaches for calculating lost profits? How much experience do they have examining legal documents and forming conclusions of damages based on the terms of a specific contract? To a financial expert, these are everyday concepts. Subsequently, a qualified financial expert can convey all this information in front of a judge or jury when it’s show time. Testifying is not at all common among CPAs outside of this specialization; whereas, financial experts regularly sit on the hot seat during depositions and trial testimony. In many circumstances, financial experts have undergone training specifically to prepare for such situations.

Consulting a well-qualified expert early in the litigation process can lead to significant efficiencies in quantifying damages. For example, an expert can assist in the request for documents, evaluate discovery documents, and provide insight on potential issues. The sophisticated expert likely has a team under their supervision contributing a large portion of the assistance and analysis required – they can offer that assistance and analysis at a lower hourly rate than that of the testifying expert. Experienced experts will eliminate many of the “surprises” and uncertainties from the damage quantification process.

When you find yourself in need of a qualified financial expert or need assistance interpreting the financial aspects of a case, Elliott Davis and our team of litigation support professionals are ready to help.  Contact the team members:

Jason Ligon (980)201-3921

Austin Starkey (423)308-0679

Jon Strickland (919)334-6171

By Jay C. Salsman and Christina J. Banfield,
Harris, Creech, Ward & Blackerby, P.A.

“[I]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself.”

Local jails and state prisons in North Carolina have an obligation to provide medical care to inmates and prisoners, who inherently rely on jail authorities to obtain treatment for their medical needs as they are not free to seek medical care on their own.  When inmates believe that they have been denied or given inadequate medical care by health care providers at these institutions, they have the right to seek monetary relief for such under 42 U.S.C. § 1983. 

Civil rights cases brought by state prisoners and county inmates are governed by 42 U.S.C. § 1983, and allow prisoners to seek relief in federal court when they believe their civil rights have been violated.   42 U.S.C. § 1983 states that a person acting under color of state law, such as a state prison employee or county correctional employee, may be liable for the violation of a right protected by the United States Constitution or created by a federal statute.

An individual, private health care provider working at a state prison or county detention center can be deemed to be acting under color of state law.  However, a private health care corporation cannot be held vicariously liable under § 1983 for any acts by an individual health care provider.  A private health care corporation can only be held liable under § 1983 for a claim demonstrating that an official policy or custom of the corporation caused an alleged violation of a right.

Common § 1983 claims against health care providers are (1) claims that prison or jail conditions cause harm to the health or safety of the inmate, in violation of the Eighth Amendment protection against cruel and unusual punishment, and (2) claims that the providers are deliberately indifferent to an inmate’s serious illness or injury, in violation of the Eighth Amendment protection against cruel and unusual punishment.  “In order to make a prima facie case that prison conditions violate the Eighth Amendment, a prisoner must show both ‘(1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.’”  In order to establish that a health care provider’s actions constitute deliberate indifference to a serious medical need in violation of the Eighth Amendment, the prisoner must show that the medical treatment is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.”

Deliberate indifference further requires that a health care provider “actually know of and disregard an objectively serious condition, medical need, or risk of harm.”  A health care provider’s failure to alleviate a significant risk that he should have perceived, but did not, cannot establish deliberate indifference.  Additionally, mere negligence or medical malpractice is not sufficient to constitute deliberate indifference to a serious medical condition.  Further, a mere disagreement between an inmate and a health care provider regarding the appropriate form of treatment does not state a constitutional claim.

Qualified immunity may apply to shield a health care provider from liability for civil monetary damages under a § 1983 suit if the provider’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.  The crucial question in a qualified immunity inquiry is whether the provider’s conduct would strike an objective observer as falling within the range of reasonable judgment.  A health care provider is entitled to qualified immunity unless a reasonable person in her position would have known, based on the information possessed by her at the time, that her actions would constitute deliberate indifference to a serious medical need.

Pursuant to 28 U.S.C. § 1367, an inmate may also allege a related supplemental state law claim for medical malpractice against a health care provider.  Where an inmate’s federal complaint also alleges a state law claim for medical malpractice against a health care provider working at a jail, Rule 9(j) of the North Carolina Rules of Civil Procedure applies, and the inmate must allege that all medical care and all medical records have been reviewed by a person reasonably expected to qualify as an expert and willing to testify that the medical care did not meet the standard of care.

Inmates may not immediately file a § 1938 action after any alleged deliberate indifference to a serious medical need; instead, an inmate must exhaust all administrative remedies available to him, thereby completing the entire administrative remedy process for any such claim.  Once administrative remedies have been exhausted, an inmate can file his § 1983 suit in federal court.  Because § 1983 does not have its own statute of limitations, it is considered “deficient” within the meaning of 42 U.S.C. § 1988.  Therefore, the forum state’s personal injury statute of limitations governs the time in which the inmate may file his suit.  In North Carolina, the statute of limitations for personal injury is three years.

After the inmate files his suit, a judge will conduct a frivolity review of the plaintiff’s complaint.  If the court determines that the complaint is (1) frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief, then the court can dismiss the complaint at a very early stage, prior to issuing summons to the named defendants.  If the suit moves forward, an inmate may file a motion for appointment of counsel with the court, as inmates have no constitutional right to counsel in a civil action.

            In defending against a complaint brought by an inmate, it is important to note that deliberate indifference is an extremely high standard that the inmate has the burden of proving.  In supporting a motion for summary judgment on such claims, medical records of sick calls, examinations, diagnoses, and medications may rebut an inmate’s allegations of deliberate indifference.  Further, the motion may, and should, be supported by a detailed affidavit from the defendant health care provider, outlining and detailing all medical care given.  In addition, expert witnesses who are familiar with the standard of care in county jails or in state prisons may be helpful to outline the standard of care that would have applied to the medical care given to the inmate. 

            42 U.S.C. § 1983 is an important vehicle that allows inmates to seek relief against private health care providers when they have actually been deprived of a right to adequate medical care during their incarceration.  However, there is and will continue to be ample statutory and case law support to assist health care providers with successfully defending against civil rights claims that are baseless or do not allege facts showing deliberate indifference to a serious medical need. 

Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926).

Estelle v. Gamble, 429 U.S. 97, 103 (1976).

Monell v. Dep’t of Social Servs., 436 U.S.C. 658, 690 (1978).

42 U.S.C. § 1983.

42 U.S.C. § 1983.

West v. Atkins, 487 U.S. 42, 50-51 (1988).

Rodriguez v. Smithfield Packing Co., 338 F.3d 348, 355 (4th Cir. 2003); Austin v. Paramount Parks, Inc., 195 F.3d 715, 727-28 (4th Cir. 1999).

Monell v. Dep’t. of Social Servs., 436 U.S. 658, 690 (1978); see also City of Canton v. Harris, 489 U.S. 378, 385 (1989).

Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993).

Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994).

Short v. Smoot, 436 F.3d 422, 427 (4th Cir. 2006).

Farmer v. Brennan, 511 U.S. 825, 838 (1994).

Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Id. at 105-06.

Wiley v. Doory, 14 F.3d 993, 995 (4th Cir. 1994).

Gooden v. Howard County, Maryland, 954 F.2d 960, 965 (4th Cir. 1992).

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).

Estate of Williams-Moore v. Alliance One Receivables Mgmt., 355 F. Supp. 2d 636, 649 (M.D.N.C. 2004); Moore v. Pitt Cty. Mem’l Hosp., 139 F. Supp. 2d 712, 713 (E.D.N.C. 2001).

42 U.S.C. § 1997e.

Wilson v. Garcia, 471 U.S. 261, 280 (1985).

N.C. Gen. Stat. §1-52(16).

28 U.S.C. § 1915A.

28 U.S.C. § 1915A.

See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 26-27 (1981).

See Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999).

Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).

By Colleen Byers,
Bell Davis Pitt

Abraham Lincoln, a wise lawyer and visionary leader once said, “With malice toward none, with charity for all, with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds.”  Abraham Lincoln was talking about the abolition of slavery and the healing of a young country quite literally torn apart by Civil War.  Yet there are pearls of wisdom in President Lincoln’s words that are equally applicable to our modern legal practices.  After all, as lawyers and mediators, we are frequently called upon to bind up the parties’ wounds.

Collaborative law is a form of alternative dispute resolution that offers parties an opportunity to bind up their wounds with dignity and respect.  Conceived in 1990 by Minnesota family lawyer Stuart Webb, collaborative law is a non-adversarial, attorney-led, structured negotiation process that focuses on the needs and interests of the parties as they work together to create sustainable solutions.

With an emphasis on the open and honest exchange of relevant information, trained lawyers facilitate joint brainstorming sessions to support and empower the parties to craft a workable and lasting solution for themselves, rather than hand their fate over to a judge or jury after a long and costly battle through the court system.  Collaborative law offers a faster, more cost effective, and less traumatic path toward conflict resolution that gives the parties a chance to preserve their relationships with each other.  Unlike the modern mediation style where the parties remain in separate rooms, entrenched in their respective positions and worried that if the other side gets a bigger piece of the proverbial pie, then they will necessarily get less, in the collaborative process, all of the parties are seated at the same table, with their advocates by their sides, collectively brainstorming ways to expand the pie rather than just divide it.  Everyone, including the attorneys, is committed to finding a business or personal resolution that everyone can embrace, not just reluctantly suffer through.

The Business Case for Collaborative Law

Collaborative law is particularly beneficial in matters in which there is an ongoing relationship or future associations. Think of a family business that’s “divorcing,” a construction project in which there’s the opportunity for the parties to have future, profitable ventures, or an employment matter where the parties have a continuing need to work together.

Increasingly, clients are unwilling or unable to pay large legal fees for extended periods of time or tolerate protracted litigation.  Particularly those clients in the technology and innovation space do not have the time to wait 18-24 months for a dispute to work its way through the court system.  By then, the technology has become archaic.  Rather than pay their lawyers to fight over provisions of a required case management order and other procedural formalities, the parties in a collaborative case benefit from knowing that every minute their lawyer spends on their case, he is working toward facilitating a business resolution. 

Collaborative Law Regulations Pending in NC

After hours of drafting and consulting with practitioners in a myriad of practice areas, the Uniform Collaborative Law Act (“UCLA”) was submitted to the North Carolina legislature.  This winter, it passed the House and is currently before the Senate Rules Committee for consideration.  The UCLA seeks to codify the regulations for the practice of collaborative law in non-family civil matters.  Of particular importance to attorneys is the restriction on collaborative attorneys and their respective firms from representing their clients in subsequent litigation if the dispute is not resolved in the collaborative process.  This disqualification rule is intended to encourage parties and their lawyers to engage diligently in negotiations to avoid having to hire new counsel if they do not reach resolution in the collaborative law process.   

Collaborative Law Resources

Led by John Sarratt, the North Carolina Civil Collaborative Law Association (“NCCCLA”) seeks to educate attorneys as well as the general public about the many advantages of utilizing collaborative law to resolve civil disputes in the commercial arena.  The non-profit organization defines uniform standards and best practices for civil collaborative professionals, offers training and networking opportunities, and provides resources for practitioners and parties.   

If you want to learn more about collaborative law and how to incorporate it into your practice, please join me and other leaders of NCCCLA at an upcoming Collaborative Practice Training CLE in Asheville on June 19^th and 20^th.  For details and registration, click here:
http://gateway.ncbar.org/store/seminar/seminar.php?seminar=140365

The collaborative process is not the right fit for every dispute, nor for every client, but it is a viable form of alternative dispute resolution that we, as counselors at law, should educate ourselves and our clients about.

About the Author

Colleen L. Byers is a lawyer and certified mediator at Bell, Davis & Pitt.  Her legal practice includes business and commercial litigation, legal malpractice defense, trust, estate and guardianship disputes, will caveats, and fiduciary litigation.  Colleen is trained in the Civil Collaborative Law process and is certified by the North Carolina Dispute Resolution Commission to mediate Superior Court cases as well as those matters pending before the Clerk of Court.  When she is not spending time with her husband and their daughters, Colleen enjoys practicing and teaching yoga.

By Alesha Brown and Michael Cohen
Cranfill Sumner & Hartzog, LLP

Since 2004, the Department of Labor (“DOL”) has required that employees otherwise qualified under the executive, administrative, or professional (“EAP” or “white collar”) exemptions be paid overtime if they earn less than $455 per week, equating to annual salaries below $23,660, regardless of their duties.  In May 2016, the Obama administration proposed to increase the annual salary threshold to $47,476, or $913 per week.  The Obama administration’s rule also proposed that the Highly Compensated Employee (“HCE”) exemption compensation level increase from $100,000 to $147,414, along with automatic updates to the salary levels every three years.

The Obama administration’s salary threshold rule was scheduled to take effect on December 1, 2016.  However, on November 22, 2016, just over one week before the rule’s implementation, a federal judge in the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction, thereby preserving the status quo while the court reviewed the DOL’s authority to make the rule.  The court held that the salary threshold increase at issue “create[d] essentially a de facto salary-only test,” and “ignore[d] Congress’s intent by raising the minimum salary level such that it supplants the duties test.”  The DOL appealed the court’s ruling to the Fifth Circuit on December 1, 2016.

Following President Trump’s inauguration in January 2017, the DOL largely went silent regarding its position on the appeal and the rule, though it expressed its intention to reevaluate the salary threshold.  On August 31, 2017, during the appeal of the preliminary injunction, the Eastern District of Texas granted summary judgment against the DOL, officially invalidating the Obama administration rule.  The court therein held that the rule “would exclude so many employees who perform exempt duties,” rendering the rule inconsistent with “Congress’ unambiguous intent.”  In essence, while the court did not invalidate the DOL’s ability to adjust the salary threshold, it held that more than doubling the threshold effectively eliminated the duties test, going beyond the DOL’s role of merely setting a floor to screen out employees that are very likely non-exempt.

On March 7, 2019, after seeking public comment, the DOL issued a Notice of Proposed Rulemaking, which reflected its newly proposed rule.  The proposed rule would increase the minimum salary threshold for the “white collar” exemptions from $455 per week ($23,660 per year) to $679 per week ($35,308 per year).  Any employees paid less than the newly proposed salary threshold would be deemed non-exempt and rendered eligible for overtime premiums, regardless of their duties or basis of pay.  The proposed rule does not include automatic adjustments, as the Obama administration rule did, but the DOL has indicated an intent to propose an update every four years via notice and comment rulemaking.  The proposed rule is based on the salary level for the 20th percentile of full-time salaried workers in the lowest census region and in the retail industry nationwide.  The DOL estimates that, if implemented, its rule will render 1.1 million workers eligible for overtime premiums.

In addition to updating the “white collar” salary threshold, the proposed rule also increases the HCE exemption under the Fair Labor Standards Act (“FLSA”) from $100,000 per year to $147,414 per year.  Accordingly, to be considered an exempt HCE under the proposed rule, an employee must be paid on a salary or fee basis, must customarily and regularly perform at least one of the exempt duties of an executive, professional, or administrative employee, and must earn at least $147,414 per year.  The proposed rule also allows employers to use “certain nondiscretionary bonuses and incentive payments,” including commissions, to account for up to 10% of the new $679 per week salary threshold.  However, the 10% compensation must be paid annually, rather than quarterly.  The 10% provision is consistent with the rule proposed by the Obama administration. 

The proposed rule will now undergo a period of notice and comment under the procedures of the Administrative Procedure Act, followed by additional evaluation. The DOL estimates that the final rule will take effect January 2020.  The DOL’s January 2020 goal is quite ambitious, particularly when considering potential litigation and a presidential election looming.  While the process is still underway and the final rule has yet to be rolled out, we anticipate that the final rule will be identical or substantially identical to the proposed rule. 

If you advise employers that employ workers earning a salary of less than $35,308 per year, now might be the right time to prepare for the new rule’s implementation.  If workers earning below the new threshold amount are already classified as non-exempt and entitled to overtime premiums, this rule will not affect their pay.  Likewise, the rule will not affect the pay of workers who do not work overtime hours, i.e. hours in excess of 40 per week, regardless of their exempt status.  If, however, your clients employ workers earning a salary below $35,308 (or $147,414 for HCEs), and such workers are currently classified as exempt, you should advise your clients to either reclassify the workers as non-exempt and pay them overtime, or raise the workers’ salaries to or above the threshold amount to maintain their exempt status.  Your clients may also want to consider limiting hours and spreading work to other employees to help avoid paying overtime premiums, which was one of the principal purposes for the FLSA’s enactment.  To the extent your clients reclassify certain employees due to the new rule, you should ensure that your clients are maintaining adequate records under the FLSA, as is required for non-exempt employees.  As always, you should also take this opportunity to examine which employees your clients classify as exempt, and whether such employees satisfy the requisite duties for each applicable exemption. 

Misclassification class and collective action and individual suits remain on the rise, and with the passage of this rule, which will likely entitle over one million more workers to overtime premiums, you should expect that trend to continue.  Early and comprehensive preparation will help ensure that your clients avoid the significant costs (both economic and non-economic) that accompany these new changes.

A safety expert can provide a lot more than just compliance regulation information. A safety professional can help lawyers paint the “big picture” to a jury by providing insights into the safety culture surrounding an incident or the development of a product or machine. Does the surrounding culture suggest a compliant environment / employer, or does it lead one to believe that safety was not a top priority? Reverse of that would see a strong culture where there is proper signage, floor markings, robust machine guarding, and accountable employees. From a manufacturer’s perspective, the warnings, safety devices, and features of the design itself can provide evidence of consideration of safety concerns, with or without a documented risk assessment.  Then you can make the case whether a manufacturer was doing its part and acting as a good corporate citizen. Thanks to Senior Staff Consultant, Rachel A. Eigen, CSP, AEP, MISE at for this great tip!

By Nick Ellis
Poyner Spruill

Under the Gun, a gun violence documentary created by Katie Couric and others d/b/a Epix Entertainment, LLC, not only gave viewers a look at gun violence in America, it also spawned a lawsuit providing both the media and interview subjects nuts and bolts information on defamation in the legal system. The United States 4th Circuit Court of Appeals on December 13, 2018 affirmed the dismissal of a defamation claim against Couric and her colleagues at Epix after analyzing  interview and film editing tactics to determine whether the subjects of the interview had been defamed.[1]

 In 2016, Couric and filmmaker Stephanie Soechtig released a documentary titled Under the Gun. The film addressed gun violence in America and more particularly, issues relating to regulatory steps that could be taken to effect gun control. The film’s perspective favored regulation of gun ownership.

 One of the issues the film addressed was the application of universal background checks to gun ownership. In efforts to present both sides of this issue, the filmmakers contacted the Virginia Citizens Defense League (“VCDL”), a non-profit gun-rights organization, and interviewed several of its members. VCDL was founded in 1994 and according to its website, is a “grass roots organization dedicated to advancing the fundamental human right of all Virginians to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution…”[2] VCDL often tracks similar political position as the NRA. Couric interviewed nine members of VCDL including Daniel Hawes, an attorney and Patricia Webb a gun-store owner.

 The film includes a portion of Couric’s interview with the VCDL members and the segment lasts approximately three minutes.  Couric asks the members several questions regarding gun policies and there are no legally problematic issues created by the main portion of the interview. However, Couric and her team included a 12-second clip at the close of the 3-minute VCDL interview that was edited in such a way as to inaccurately project the members’ responses.

 The final question Couric posed was “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” Approximately nine seconds of silence follows the question, which show the VCDL members sitting in silence and shifting uncomfortably in their seats, while averting their eyes from the camera. Couric is then heard stating “The background check is considered the first line of defense, and 90% of Americans agree it’s a good thing.” There is no other reference to the VCDL or its members in the 105-minute film.

 The problem with this 12-second clip is that it did not transpire as depicted. In actuality, when Couric asked the question about background checks for gun ownership, the VCDL members responded for approximately six minutes. Hawes, the attorney, suggested the government cannot, through a prior restraint that violates the United States Constitution, try to prevent crime. Webb, the gun-store owner, responded that background checks were unlikely to prevent motivated criminals from obtaining guns or committing crimes.[3] These two responses took up approximately three minutes and then there was an additional three minutes of related discussion between Couric and the panel. But, Couric’s team did not show any of these responses. Instead, they spliced in footage taken prior to the interview in which she asked the interviewees to sit silently while technicians calibrated the recording equipment.[4] 

 After the film was released, the VCDL released an unedited audio of the interview, which caused public backlash. Couric then issued a statement taking responsibility for the misrepresented exchange. She acknowledged the insertion of the extended pause made the participants appear to be speechless. Her statement further acknowledged the VCDL members had a right to have their answers be shared, so she posted their responses in full on the film’s website.[5] Couric acknowledged the eight seconds did not accurately represent the members’ response and that this was misleading. To a lay person, this may appear to be exactly what defamation looks like. Legally, it has turned out to be another story.

 The 4th Circuit Court of Appeals stated a defamation claim under Virginia law (the site of the interview) required a plaintiff to prove the defendant (1) published, (2) an actionable statement, (3) with a requisite intent. The court found Couric and Epix had published the film with the requisite intent, but that it had to grapple with whether this was an “actionable” statement. Under Virginia law, to be actionable, the statement must be “both false and defamatory.”[6] There does not appear to be any question that the “clip of silence” was false, but was it “defamatory”. This turned out to be the court’s focus.

 The court stated that defamatory words are those, which tend to harm the reputation of another such that the estimation of him by the community or others is lowered and that they are deterred “from associating or dealing with him.” [7] Virginia law requires a court to initially decide whether a statement is reasonably capable of defamatory meaning before allowing the case to be presented to a jury. Further, Virginia law requires that inferences from the pleadings must be resolved in the plaintiff’s favor when deciding if the communication is reasonably capable defaming the plaintiffs by innuendo. [8] 

 The VCDL, Hawes and Webb contended the film was defamatory per se (meaning they did not have to show other evidence that the silent clip damaged their reputation). The precise argument Plaintiffs made was the film was defamatory per se because it was reasonably understood to suggest they were unfit as a gun-rights group, an attorney and as a gun-shop owner.[9] To establish defamation per se legally, there must be some connection between the content of the statement and the skills or character required by the plaintiff to carry out his or her particular occupation. 

 The court first applied this legal principle to Hawes, the attorney. His practice focused on firearms and self-defense and he argued the film suggested he lacked the required competency and ability to represent clients in such cases. However, the court concluded the background check question had nothing to do with Hawes’ legal practice or expertise. The three-judge panel concluded accepting eight-seconds of silence constituted defamation per se would require it to hold that such silence unequivocally suggested “professional ineptitude.”[10] The court was not willing to go that far.

 Likewise, the court denied gun-shop owner Webb’s claim because it did not find that the inserted clip suggested she lacked sufficient knowledge regarding integral aspects of purchasing firearms or operating such a business. The judges concluded Webb’s ownership of a gun store did not require her to have “nuanced views on gun policy.” [11]  The VCDL was also found not to be defamed because, while the interview was of its members, they were not identified as leaders of the VCDL and therefore, inserting the silent clip could not be construed to question the overall ability of the VCDL to serve its stated purpose. The court does make a contradictory statement by claiming that the silence in response to Couric’s question did not suggest the VCDL or its members did not have responses to the question because the film did show other questions concerning background checks. Then, the court goes on to say that “To be sure, the film gives the impression that Couric’s final question stumped the panelists.”[12] So, its seems that on one hand, the court acknowledges the editing suggested the plaintiffs had no answer to Couric’s question but also tries to say that this was “no harm, no foul” because other responses to similar questions had been presented.

 Procedurally, the courts may not have seen the last of this case as it is almost certain the plaintiffs will seek to have the Supreme Court of the United States review this decision.

 So, what are the takeaways for the media? What are the takeaways for persons being interviewed by the media? It seems to me, that one of the distinguishing features of this case is that one of the VCDL members interviewed was an attorney and the other a gun-store owner. The attorney represented individuals involved in gun-rights cases and also defendants facing criminal charges who were asserting self-defense to those charges. Webb owned a business that sold firearms and surely has some duty to lawfully sell those firearms. While the court ultimately concluded the edit did not challenge their competency to serve as an attorney or own a gun shop, one would have to admit it is a close call and Couric and her team could have faced a jury who would have decided if inserting the clip in lieu of their actual answers was defamatory. In my opinion, the questionable manner in which the clip was inserted would have likely been a factor a jury would consider in determining if the plaintiffs were defamed. Members of the media, therefore, should know the occupation of their subjects and other relevant information pertaining to how members of the community may identify them. The closer the interview topic is to the person’s profession, the less latitude you likely have in editing the answer to a question.

If you are the subject of an interview, I think it would be wise to insist that any response you give to a question be shown without any editing and, if possible, in its entirety. This means that interview subjects should try to speak in sound bites rather than give protracted responses which the local news or a filmmaker may simply not have ample time to fully present. If you think you are potentially being “set up” by the interviewer, it may even be a good idea to inject in your response to a question about what your occupation is or what specific knowledge you may have about the subject. Leave no doubt that you are qualified to talk about the subject. This would possibly allow you to clearly create a nexus between your profession/occupation and the Q : A in case there are edits made that alter the accuracy of the response.

While fictional filmmakers certainly have artistic license, it may not be too much expect documentary filmmakers or the news media to waive that license and accurately, without intentional alterations being made, present responses from an interview subject. It may be naïve to suggest this, but the public wants information presented in a fair and accurate manner where it can draw its own conclusions about that information.

Have a client who handles powders, fibers, or dusts? NFPA 652 – Standard on the Fundamentals of Combustible Dust – was approved as a national standard on September 7, 2015, with the requirement that a Dust Hazard Analysis (DHA) be completed at qualifying facilities within 3 years of its adoption. We’re coming up on that deadline. If any sort of dust, powder, or fiber is handled at a facility, it should be tested for combustibility to determine if a requirement for a DHA exists. Keep in mind that just about anything can be combustible if it is small enough! This includes wood dust, textile fibers, sugar, metal dusts, rubber, pharmaceuticals, and more. When in doubt, get it tested, and proceed from there.

Written by James C. Smolka, P.E., CFEI, CESCP, ESi

As you read this article, you probably have a power strip under your desk that powers your laptop, your monitor, your cell phone charger, etc.  Power strips, which are officially known as relocatable power taps (RPTs), are designed to be used as a multiple outlet extension in the office and in the home.   Many RPTs are listed by Underwriter Laboratories Inc. (UL) meeting the requirements of Standard UL 1363.  Some RPTs have limited electrical surge protection and electrical noise filtering for sensitive electronic equipment. 

When used as designed, RPTs are useful, reliable devices.  However, they have been involved in many fires.  Often the fires attributed to RPTs are related to the misuse of the RPT. The picture below shows an example of the misuse of an RPT.

Relocatable power taps were designed for use in an area with a high concentration of low-powered loads such as computers, paraphernalia, and audio/ video equipment.  RPTs are not intended for use with high load equipment such as refrigerators, coffee pots, copiers, space heaters, microwave ovens, toaster, toaster ovens, hair dryers, and dehumidifiers.  Basically, if the electrical device has a large motor or a large heater, then it was not meant to be plugged into an RPT.

According to UL, RPTs are also known as temporary wire taps and are considered temporary extension of an electrical circuit intended for indoor use.  The term temporary also refers to how an RPT is physically mounted. The mounting and removal of a RPT is permitted if tools are not used to secure it in place (i.e., a RPT cannot be secured to a work bench, desk, or a wall by bolting or screwing the RPT to a surface.). 

RPTs are great for low power devices.  However, there are some do’s and don’ts.  According to the NFPA 1, Fire Code, and the UL White Book, RPTs:

• Shall be directly connected to a permanently installed receptacle.
• Are not intended to be series connected (daisy chained) to other relocatable power taps or to extension cords.
• Are not intended for use at construction sites and similar locations.
• Are not intended to be permanently secured to building structures, tables, work benches or similar structures.
• Are not intended to be used as a substitute for fixed wiring.
• Shall not have their cords routed through walls, windows, ceilings, floors or similar openings.

The question for legal minds is, is it illegal to misuse an RPT in the work place?  In short, yes. There are ways that the misuse of RPTs can be considered illegal.

The first way that the misuse of an RPT causes a legal issue through violation of the OSHA regulations.  The installation and use of electrical equipment, OSHA regulation (29 CFR 1910.303(b)(2) states:

“Listed or labeled equipment shall be installed and used in accordance with any instructions included in the listing or labeling.”

Since RPTs are listed devices, the misuse of a RPT in the work place is an OSHA type violation.

The second way that the misuse of an RPT causes a legal issue is NFPA 70, National Electric Code (NEC), Article 110.3(B), which states:

“Listed or labeled equipment shall be installed and used in accordance with any instructions included in the listing or labeling.”

Since most states have adopted the NEC and have made the NEC a legally enforceable standard, not following the NEC results in a non-compliance of a recognized standard.

Note that the OSHA regulations and the NEC use the same language regarding the use and installation of listed devices.  The OSHA regulations tell you what you must do, standards, like the ones from the NFPA, tell you how to meet the OSHA regulations.

RPTs are used in almost all office environments.  So, take a moment and look around your office.  Are your RPTs in good condition?  Are your RPTs used as designed?  For safety reasons, the proper use of RPTs is not only recommended, it is an OSHA requirement.