Verdicts and Rulings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hidalgo v. Erosion Control Services

(Court of Appeals - Published – 21 July 2020)

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

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

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

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

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

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

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

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

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

By: Ryan Bostic, Clawson and Staubes

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

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

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

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

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

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

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

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

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

           

           

           

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

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

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

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

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

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