Verdicts and Rulings

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. 

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

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

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

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

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

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

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

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

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

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

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

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

Submitted by Scott Addison, Lincoln Derr

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

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

submitted by Nick Ellis, Poyner Spruill

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

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

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

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

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