By: Ryan D. Eubanks, Sumrell Sugg PA
A vital part of achieving professional success as a young attorney is the wisdom, guidance, and support of a good mentor. However, often times the insight, advice, and war stories that help shape the young attorneys in a firm do not make it any farther than the four walls of that corner office. As part of this series, the North Carolina Association of Defense Attorneys will seek to highlight mentors throughout the state whose insight helps mold the next generation of defense attorneys, so that all of our members, but particularly our young attorneys, can benefit from it. Today’s words of wisdom come from a conversation I had with my mentor, Scott C. Hart. Scott is the managing partner at Sumrell Sugg, P.A. in New Bern, North Carolina. He has been practicing law for over 30 years (yes, as young lawyers, that is longer than some of us have been alive) and is a past member of the Board of Directors for the North Carolina Association of Defense Attorneys. He primarily focuses his practice area on insurance defense, mediation, and arbitration.
What was the best advice you were given as a young lawyer?
Try the case, not the other lawyer. I remember coming into a senior partner’s office because I was so upset about what another lawyer was doing, and I had all these ideas about how I was going to try to deal with that other lawyer. The senior partner looked at me and he said, ‘you need to try the case and not the other lawyer.’ He told me, ‘your objectivity is the most valuable thing that you can provide to your client, and if you lose your objectivity because of how you feel about the other lawyer, you cannot provide anything to your client.’ That was the best advice I ever got.
What do you believe is the appropriate work-life balance for a young attorney?
I think every experienced lawyer, on some level, probably thinks that he or she had it more difficult than the current young lawyers do, and they are probably wrong about that. The practice of law is far more efficient than it used to be because of computerized research, not just legal research but research generally. The ability to do video interviews and depositions and the use of email, text messages, and cell phones allow attorneys to get a lot more done in a shorter period of time. And so, I think lawyers that are learning how to practice now have more opportunities to get things done because of that efficiency. But I have also seen too many people burn out because they do not take care of themselves. I think it is important to focus on work while you are at work, but you also have to learn the skill of being able to close your office door at the end of the day and walk away from whatever is waiting on your desk. That means figuring out a way to get as much done as you can while you are at the office and figuring out a way to leave it behind when you are not. That is a tough thing to figure out. I think that balance is different for everybody. Some people can handle checking and returning emails late in the evening because it helps them to sleep knowing any issues have been addressed. Some people are better at saying, ‘I am not going to look at my email or respond to anything that comes in after seven or eight o’clock at night.’ I think you need to find out what works best for you. I think it is also important to find hobbies outside of your practice and to get physical exercise. It is important to find time to include those things in your schedule so you can feel like you are doing things that are for you and that you enjoy doing. It is a difficult job, and you will spend a lot of years doing it. If you burn yourself out by the time you are thirty-five, you have defeated the purpose.
What advice do you have for a young attorney who is feeling overwhelmed with their caseload?
I think every successful lawyer occasionally feels overwhelmed by their caseload. Sometimes it is helpful when that happens to carve out some time when no one is in the office to sit down and organize what is on your desk to make sure that you have a sense of what needs to get done. Whether that time is right after the office closes one evening, or coming in early one day, or coming in for an hour or two on a weekend just to kind of get a sense of what needs to be done so that you can handle it a little bit at a time. In my experience, what typically makes you feel overwhelmed is the total volume. The individual tasks are always doable, it is the number of them that overwhelms you. So if you can sit down and figure out how you are going to get through accomplishing each of those tasks, it will feel like it is much more achievable. Do not look at the whole; look at the parts.
Do you think it is important for young attorneys to be involved in organizations outside of the legal profession, whether it is a kickball league or the board of a local nonprofit organization?
Yes, 100 percent. It is good for your career to be able to interact with other professionals and to be a part of your community, but it is also just good for you as a person to be well-rounded and to be involved in things. It helps you realize that there are things going on in your community outside of your law firm. I also think it is important to be involved in legal organizations like the NCADA or the NCBA to be able to interact with other lawyers outside of your law firm and outside of your town because you can learn a tremendous amount from how other people are doing things. It is also nice to know that there are other people that are basically going through the same things that you are going through.
We often hear the term jack of all trades, master of none. Do you think young attorneys are better served focusing on mastering a few select practice areas, or should young attorneys be willing to take on unfamiliar subject matters?
There are certain areas that you can learn. The question is whether you can be competent to provide the legal services because you have an ethical obligation to make sure before you take a case or a matter that you can competently provide those services. So if someone comes to you and asks you to work on a matter that requires a tremendous amount of technical skill and you do not have that, and no one in your firm has that, and you cannot associate someone to walk you through it, then I think you are making a mistake handling that matter. If you have got those resources available to you, either inside or outside of your firm, so that you have a chance to learn that area through that process, then it is helpful. There are certain areas that are highly technical, areas like tax, finance, and banking, that I would be very hesitant to try to do if you did not have mentoring and expertise. Before you write a will or handle an estate, you want to absolutely make sure that you understand the law well enough to provide those services competently because there can be major repercussions if something is done incorrectly. I think the key is making sure that you have resources and mentoring or guidance from other lawyers and that you can learn thoroughly the area that you need for that case before you take it.
What is one thing you know now that you wish you knew when you first started practicing law?
I wish I would have known how quickly the time was going to pass. I wish I had appreciated more the times that I spent with other lawyers working on cases. I was so busy and so wrapped up in taking care of that case and moving on to the next one that I often did not take the time to step back and reflect on how much I was enjoying it. Before I knew it, I blinked, and 30 years were gone. I wish I had known how fast it would go.
What trial tips do you have for young attorneys?
I think the most important thing that a young trial lawyer can do is make sure that you come into trial with a theory and a theme and that you keep those two things in mind throughout the trial. Be willing to shift if you need to because of unexpected things that happen in the trial itself. But you have got to look at the case as it is being presented to the jury through the lens of your theme and theory of the case so that you make sure you are able to present a consistent message to the jury.
How should a young attorney prepare for their first trial?
You should write everything out that you can and try your best to prepare for every eventuality that may happen. By writing out, I mean write out your plan for your jury voir dire, your plan for your opening statement, your plan for direct and cross-examinations, and your plan for your closing. You will likely not actually follow what you have written down to the letter, but the exercise of writing it down will help you organize it. As you progress in your career, and the more cases that you try, it will become less important to write everything down in advance, but I think that it is helpful for young attorneys as they get used to trying cases. You should also try to think of every potential eventuality of what the other side might do and think about what your response will be so that you have already thought through a number of different possibilities and in your mind plotted out a way to respond to each of them.
What mediation tips do you have for young attorneys?
You should assume that your case concludes at or shortly after mediation. It is a mistake to assume that mediation is just one step in the case. If you do not go into mediation hoping to utilize it to its greatest effect, you will not get the greatest benefit out of it. We know that most cases end in mediation or shortly thereafter, so you should plan for that. You should structure your discovery around the mediation because your case is more likely to end at mediation because of the good job you did in discovery than it is to end with a jury verdict. Not that many cases get to go to trial anymore. So prepare for discovery and prepare for mediation as if they are the determining aspects of your case. They probably are.
Is it helpful to start with a reasonable response to an opening demand in mediation, or should a young attorney start with a low offer?
If you are on the defense side, in almost every case, I think you are most effective by making an aggressive opening offer and then, if necessary, making smaller moves from that point. A lowball offer almost always results in bad blood that slows the process down. If your goal is to settle your case, then you are more likely to do so with an aggressive opening move than you are with a lowball opening move.
What deposition tips do you have for young attorneys?
Prepare for your depositions as if your case depends on them. Have an outline that you use as your backbone for all of your depositions because then, no matter what happens, you have a structure that you can follow that is logical and covers not only background information but the facts of your case. Prepare for the deposition as if you were going to be taking someone’s trial testimony. Be prepared by doing a background investigation on the witness to try to find out everything you can about that witness and read their written discovery. Because a deposition is your opportunity put a witness on the spot, get their testimony, and evaluate how they perform, you need to be prepared in order to make sure you get the best out of that.
I know in your depositions you do not introduce a lot of exhibits. What is your thinking behind that, and do you recommend that to others?
I think it is a personal preference thing. I know some lawyers who are extremely effective and who use lots of exhibits in their depositions. I have always tried in my depositions to focus on how a witness is handling my questions, and I can do that better by focusing my attention on the witness and their answers rather than giving them an exhibit. I also want to know how they are going to respond to me without the benefit of having something in front of them to refer to. But I am always willing, if they have given me information that is contrary to something that I have, to put an exhibit in front of them that shows they are inconsistent. I usually bring exhibits, but I often don’t use them. I never admit exhibits just for the sake of having them.
What are the most common mistakes you see young attorneys make, and how can those mistakes be avoided?
The biggest mistake I see young lawyers make is being unpleasant to other lawyers. This job is stressful enough without unnecessarily getting into fights with lawyers on the other side or on the same side about cases. In my experience, most disputes can be worked out between lawyers behaving reasonably. I think too many young lawyers think that their job is to be in a constant state of altercation, and I do not think that is helpful at all. Some of my best friends are people that I have had on the other side of cases, that I became good friends with during the case, and who I respected and trusted a great deal. We did battle in court when we needed to, but I also trusted them at their word and respected them for the job that they were doing. There is no need for things to become personal, and it should not ever become personal. As a young attorney, there is something to be said for building trust and relationships with attorneys on the opposing side because you will almost certainly see them again, and building those relationships may pay off for you and your clients later in your career. Be prepared, be professional, and be pleasant. Those are the three most important things I think a lawyer can do to cement their reputation. Be prepared for your case to make sure that nothing happens that you haven’t spent time thinking about and preparing for. Be professional and make sure that you are being courteous and providing good communication with other lawyers, and treating them the way you would want to be treated. Be pleasant, be enjoyable to work with, and be a nice person; it is not going to hurt your client, and it will make your life a lot more fun.
What has impressed you the most about the young attorneys that you have come into contact with?
Because law school has become so expensive, people only go to law school if they really want to be lawyers. When I went to school law school, it was relatively inexpensive, and there were people who did it because they did not know what else they wanted to do. Because it is now such a financial commitment, I think that the people that are going into it really want to do it and do it well. So, the commitment that I have seen in young lawyers has been impressive to me. I also think that our law schools are doing a good job of training our young lawyers for legal analysis. That is a skill that is very helpful for a young lawyer, and I have been impressed with that.
What tips do you have for young attorneys that want to continue to advance professionally?
Find practice areas and cases that you have a passion for because if you truly enjoy the work, you will excel at it. Clients will find you, work will find you, and you will be successful. Do not get caught up in how profitable it is because if it makes you happy and challenges you, that is the work you should be doing.
What advice do you have for a young attorney who finds themselves facing off against a more experienced attorney?
You cannot control the facts of your case, and you cannot control how much age and experience the other side has, but you can control how hard you work in preparing the case. You can make sure that you never go into a deposition, a mediation, a hearing, or a trial where you have been outworked. There is at least a decent chance that the older, more experienced lawyer may not have had the time that you have been able to commit to it. They do not simply provide victories to the person with the grayest hair.
Do you think experienced staff should play a role in guiding a young attorney?
Absolutely. I think an experienced legal assistant or paralegal can be a huge help to a young lawyer in trying to figure out how to do things. Young lawyers should be open to listening to experienced staff. Some of the best judges I have ever seen learned more from the clerks than from anybody else. Do not think that just because you have a law degree hanging on your wall that there is nothing you can learn from anybody else in the building.
What risks should a young attorney be willing to take?
I think you should always be willing to run the risk that you are going to lose a case. If you are a defense lawyer, the better you are at defending cases, the more difficult cases you are going to get, and you are not going to get to win all of those. It is not your job to win every case; it is your job to provide good legal advice and to fully evaluate and handle your cases. So, do not get wrapped up in the wins and losses, they are really meaningless.
If you are interest in submitting a “Conversations with a Mentor” article for publication, please contact Ryan Eubanks (email@example.com) or Halee Morris (firstname.lastname@example.org).
By Tracey Jones and Heather Baker, Teague Campbell
On July 26, 2022, the Full Commission issued another extended benefits decision, Messick v. Walmart Stores, Inc. The panel consisted of Vice-Chair Griffin, Commissioner Taylor and Commissioner Goodman. In this case, the Full Commission awarded the claimant extended benefits. The issue of extended benefits was not an issue at the Deputy Commissioner level. The Deputy Commissioner issued an Opinion and Award finding compensable aggravations to claimant’s pre-existing left knee condition and mental health condition, awarded ongoing TTD benefits, and ordered payment for claimant’s dental treatment related to a post-accident fall. Defendants did not appeal the findings or conclusions related to causation, but appealed on the issue of whether the first date of disability versus the date of injury was controlling in regard to determining the indemnity benefits and/or extended benefits owed to claimant under N.C.G.S. § 97-29.
Claimant sustained two compensable injuries; one to her lumbar spine and another to her right knee. Her lumbar spine injury was pre-2011 statutory reform and her right knee injury was post-2011 reform. Both injuries were accepted by Defendants. Defendants also authorized benefits for psychological treatment as a part of the claim. Ultimately, claimant required, among other treatment, a spinal cord stimulator, a knee replacement surgery, and a knee replacement revision procedure, along with increased psychological treatment for depression, which included a 20-day psychological support and physical reconditioning program where she weaned off Oxycodone. Eventually, claimant’s left knee became problematic, and she required a left total knee replacement, which claimant’s doctor opined was the result of her accepted right knee injury. She was ultimately assessed with failed back syndrome, chronic low lumbar pain, and chronic knee pain.
As a part of litigation, the parties deposed nine experts, consisting of claimant’s medical providers and claimant’s vocational expert. In terms of disability, many providers deferred to other providers and/or a vocational expert, and claimant was assigned permanent sedentary restrictions with no repetitive bending or stooping; no lifting more than twenty pounds; no twisting; no kneeling; no climbing ladders or stairs; no walking more than forty yards at a time; and no sitting or standing for more than thirty minutes at a time. The claimant’s vocational expert concluded that there was no reasonable vocational probability that claimant would be able to secure a job and maintain gainful employment. He testified she had a total loss of wage-earning capacity, despite noting that claimant expressed multiple times she would prefer to be working and productive.
The good news is the Full Commission, in keeping with it’s other extend benefits decisions, clearly states that the standard in extended benefits cases is different than the normal standard for proving entitlement to temporary total disability benefits. Applying the revised standard set forth in the 2011 revisions to N.C. Gen. Stat. § 97-29(c), the Full Commission reiterated that to establish entitlement to extended compensation, a plaintiff must show that they have a total loss of the ability to earn wages in any employment. See N.C. Gen. Stat. § 97-29(c) (2021).
However, the Full Commission found the vocational expert’s opinion credible and concluded there were no jobs in the job market within claimant’s functional capabilities. The Commission found ongoing disability for claimant’s pre-reform injury, and the Commission also found a total loss of wage-earning capacity due to her compensable injury for the second post-reform injury. Claimant was awarded ongoing medical benefits and TTD benefits for the pre-reform injury until claimant returns to work or until further order by the Commission and awarded extended benefits for the post-reform injury. The Commission focused on claimant’s chronic pain, age, and length of time from being in any academic situation and relied on the only vocational expert to testify in the case to conclude that claimant has sustained a total loss of her wage-earning capacity.
Takeaways for Defendants
This Opinion and Award once again demonstrates the importance of expert testimony in these extended benefit cases. The physicians deposed all found claimant’s pain complaints credible and either would not comment on claimant’s ability to work or deferred to a vocational expert as to whether there were jobs available that claimant could perform. The only vocational expert that was deposed clearly testified that claimant had suffered a total loss of wage-earning capacity because of her restrictions and chronic pain complaints. In order for defendants to successfully defend these cases, they must retain or have testimony from both medical and vocational experts that the claimant has some wage earning capacity. If defendants can successfully present this evidence, past cases suggest that they will prevail and extended benefits will not be awarded.
By Elizabeth Ligon, Teague Campbell
Whether for team building or to celebrate the upcoming holidays, we often see a resurgence of off-site, employer-sponsored events this time of year, which also means an uptick in questions about whether injuries that occur at these types of events are compensable under the North Carolina Workers’ Compensation Act. As with most legal questions, the answer is oftentimes “it depends.” The general rule involving these off-site events is if an employer provides an occasion for recreation or an outing for employees and invites them to participate - but does not require them to do so - and an employee is injured while engaged in the activities, such injury does not arise out of the employment. However, the courts will consider several factors to determine whether an injury occurring at an event is compensable, including whether the event was sponsored and financed by the employer, the extent the employer encouraged their employees to attend the event, and the extent that the employer benefited from the event.
What does case law say?
In Chilton v. Bowman Gray School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347 (1980), the Radiology Department of the hospital organized and paid for a picnic for members of the faculty and new residents to become acquainted. Employees felt no direct pressure to attend, but some employees testified that they felt that they should go to the picnic. During a volleyball game at the picnic, an employee broke his ankle. The Court of Appeals considered several factors to determine whether an injury at an employer-sponsored recreational event was compensable, including:
After considering these factors, the Court of Appeals found the injury not compensable because it was not clear that the Radiology Department sponsored the picnic; the event seemed to be a self-perpetuating one that occurred each year more because of tradition than from any initiative taken by the Department heads; attendance was voluntary; no record of attendance was taken; the participants were not paid for the time spent, nor was any employee required to work at the medical school if he did not attend; the picnic was not an event that employees regarded as being a benefit to which he was entitled as a matter of right; and the Radiology Department did not utilize the picnic as an opportunity to give a “pep” talk or grant awards.
However, the Court came to a different conclusion in Holliday v. Tropical Nut & Fruit Co., 242 N.C. App. 562, 775 S.E.2d 885 (2015). There. the employer required the claimant to attend a three-day conference. On the first evening of the conference, the employer organized a bowling and laser tag social event for the employees in attendance. The employer paid all expenses for the event, assigned employees to teams, and told each employee which activities they would be participating in upon arrival. The claimant was assigned laser tag. Approximately 15 minutes into the game, he began to feel sharp pain in his knee. After the game concluded, he immediately informed his general manager that he thought he had hurt his knee, but he was able to attend the remainder of the conference.
The North Carolina Court of Appeals held that, since the employer required its employees to attend the conference, encouraged their participation in activities, and derived a business benefit from the event as a whole due to the team building and networking opportunities of the sporting events, the claimant's injury arose out of his employment. The Court further noted that the conference and the claimant's participation in all events during the conference were scheduled by the employer and were calculated to further, directly or indirectly, the employer’s business.
When considering whether an injury occurring at a work event would be compensable, evaluate whether the work event is sponsored and/or financed by the employer, and whether the employee’s attendance is mandatory. Team building activities are important, but in order to minimize your exposure, voluntariness is key. If an employee is injured at an event sponsored and financed by their employer and participation is mandatory, the injury will most likely be found compensable.
John G. Bauer, BSME, MEM, P.E., Rimkus
Air bags in vehicles have become quite commonplace. They are neatly tucked away and mostly unseen, so most people don’t give them much thought… until there’s a crash. Then, people start asking questions. “Why didn’t my air bag deploy?” “Why did my air bag deploy?” “After the impact, my air bag was smoking… was it on fire?” “The air bag is supposed to cushion me… why did it break my nose and glasses?” “What happened to Tiger Woods? Why didn’t his vehicle have an air bag for his lower legs?” “How do knee air bags work?” It’s not rocket science, or is it?
A little history
The first automotive barrier crash test, conducted at GM in 1934, was an early milestone in vehicle safety. In the late ‘40s and early ‘50s, seat belts began being offered in cars, and the first patents for early air bag designs were filed in 1951 (Figure 1). The inventors of those original air bag devices were limited by compressed air or gas technology of that time; but compressed gas could not fill the bags fast enough, and crash sensing had not been invented yet. So, the concept of automotive air bags stayed “deflated” for several years.
Figure 1. Early patent of automotive air bags
Then, in the late ‘60s, Allen Breed developed a ball-in-tube electromechanical sensor that could detect a crash and close a circuit to deploy an air bag. Also, at about that time, aerospace companies like Talley and Thiokol had been researching solid propellant applications for rocket boosters, military aircraft pilot ejection systems… and automotive air bags.
Breed’s sensor designs and some aerospace rocket science led the way to the actual implementation of air bags in passenger vehicles. Ford and GM began installing air bags in automotive test fleets in the early ‘70s, and the first passenger air bag was sold to the public in the 1973 Oldsmobile Toronado. In 1981 at the Geneva Motor Show, Mercedes-Benz announced a driver air bag and pyrotechnic passenger belt tensioner for the new S-Class (Figure 2). Automatic seat belts or air bags were required in US passenger vehicles in the late ‘80s. After initially fighting their implementation – like a lot of auto industry leaders -- Lee Iacocca decided to gamble and offered driver air bags as standard equipment on several Chrysler models. The bet paid off, and the industry found that “safety sells.” The rest, as they say, is history.
Figure 2. Mercedes-Benz circa 1981
Air bag myth #1
“My air bag didn’t deploy, so it must have been defective.”
Air bags are very reliable. The automotive industry was very cautious before finally embracing air bag technology. Air bags were – and still are – carefully designed, tested, and vetted. Since they are inherently dangerous, special precautions are taken to make sure they work as intended. Also, air bags are only intended to deploy in certain situations.
Air bags are not set to inflate based primarily on the speed of the vehicle. Deployment depends on the object struck, the impact direction, and how rapidly the vehicle changes speed or slows down. Is the struck object fixed or moving, rigid or deformable, narrow or wide?
Early air bag systems were designed to only function in frontal or near-frontal crashes. Later, side impact air bags were developed. Then, rollover air bags were introduced to complement and utilize the side air bags. More recently, knee air bags, inflatable seat belts, rear impact air bags, and others are being developed and introduced. Some vehicles have active head restraints or “deployable” headrests for rear impacts, but those devices currently are mechanically activated and do not use air bag technology. Crash sensors detect impact “forces” or roll characteristics. Deployment thresholds are then used to determine if the air bags should inflate (Figure 3).
Figure 3. Deployment thresholds (Okamura, et.al., 26ESV-19-000248)
Air bags are designed to inflate only if the applicable deployment threshold is exceeded. Deployment thresholds are mostly based on crash severity, usually some function of acceleration (or deceleration). The threshold is set to deploy air bags only in moderate to severe crashes to reduce the potential for serious injuries. More advanced vehicle restraint systems use thresholds based on crash severity, driver and passenger belted status, front seat position, and front passenger occupant size and weight.
Most vehicles built since the late 1980s have air bags. For those vehicles equipped with air bags, nearly all will have one or more frontal air bags. The most common is the driver frontal air bag located in the steering wheel. A larger frontal air bag for the outboard front passenger is also very common. More recent examples of frontal air bags include knee air bags for the driver and outboard front passenger. Frontal air bags are designed for frontal and near-frontal crashes and are not intended to deploy in rear impacts, rollovers, or many side impacts.
Side air bags are set to inflate in side impacts and sometimes rollover crashes. Air bags for side impacts must deploy very early and fast because the gap between the occupant and door is small, and that gap often “closes” rapidly due to the intruding vehicle or object. Side impact sensors are usually solid-state accelerometers or pressure sensors in the doors or side pillars. Like frontal air bags, most side air bags are vented and quickly deflate. Since rollover crashes can last up to 6 seconds or more, rollover air bags need to stay inflated for about 6 seconds and are, therefore, coated and sealed. Some side curtain air bags are designed only for side impacts. Other side curtain air bags have been developed for side impacts and rollover crashes.
Each vehicle model is relatively unique with its own specific size, weight, and structure. Therefore, each vehicle model has its own unique crash “signature” and reacts to crashes differently than other models. To account for this, the air bag sensor system for each vehicle model is calibrated specifically for that vehicle model, and that model only. Many tests and various simulations are conducted and used for air bag sensor calibrations. In addition to standard frontal, angular, side, rear, and rollover crash tests, rough road and other abuse tests like curb impacts and undercarriage strikes are used.
Vehicle crashes can be very complicated and somewhat chaotic events, so it is very difficult and often impossible to replicate actual crashes with tests. Many crashes include multiple impacts and directions and are a small collection of different events. Some develop very quickly, while others develop slowly over several seconds. Due to thorough design and development, air bag sensor calibration is usually quite robust and can assess most crashes and make the proper decision to deploy or not deploy. Although rare, air bag systems can and do occasionally fail to deploy or deploy inadvertently. Before concluding a defect occurred, the conditions of the crash and the vehicle specifications must be carefully examined.
Air bag myth #2
“Air bags pop out after the car stops, like in the movies.”
For most of us, we realize what we see on the big screen is not always completely accurate. Hollywood often takes liberties with physics, with science, with technology, and with air bags. Although not meant to be authentic, one of my favorite portrayals is the Jiffy Pop popcorn air bag by Saturday Night Live (SNL) (Figure 4).
Figure 4. Jiffy Pop air bag (SNL)
Air bags usually deploy a fraction of a second after impact. For example, during a 30-mph frontal barrier test, the occupant begins moving relative to the vehicle in about 15 milliseconds (0.015 second). The occupant continues to move about 5 inches over the next 30 milliseconds. Since a typical driver frontal air bag inflates in about 30 milliseconds, the decision window for air bag deployment is the first 15 milliseconds during that type of crash. So, for a 30-mph frontal, deployment occurs after about 15 milliseconds, air bag inflation in about 30 milliseconds, occupant ride-down over another 50 milliseconds, and occupant rebound back into the seat in about 100 milliseconds or more. The vehicle comes to a brief stop and begins to rebound in about 90 milliseconds, just before the occupant reaches maximum ride-down. The vehicle rebounds or bounces back and comes to rest “long” after the air bag has deployed.
According to various sources, the duration of an eye blink is 100 to 400 milliseconds. Air bags deploy in 30 to 60 milliseconds… “less than the blink of an eye.”
Air bag myth #3
“Air bags are soft cushions or pillows.”
As just described, air bags inflate very fast. As they unfold and deploy, the filling bag front can reach speeds of 100 to 200 mph. Also, most are designed to protect belted and unbelted occupants. To restrain an occupant in a moderate-to-severe crash, an air bag may need to exert a force of 1,000 to 3,000 pounds or more on the occupant. That means the air bag must pressurize and be quite firm for a short time. The air bag is usually porous or vented and allows gas to quickly escape to properly manage the occupant’s energy and allow the occupant to “ride down” the air bag (Figure 5).
Figure 5. Air bag ride-down (phandwc.com)
Air bags are designed to help stop an occupant with a substantial amount of kinetic energy in a crash. Crash forces can be quite high, so the air bag must be firm, not soft. Occasionally, drivers break their eyeglasses or nose when contacting the air bag. The air bag must also deflate rapidly in a controlled fashion to avoid excessively high forces that could seriously injure the occupant.
Air bag myth #4
“My car has air bags, so I don’t need to wear a seat belt.”
Seat belts are primary restraints. Air bags are designed to be supplemental restraints. While air bags will provide some protection for unbelted occupants, air bags alone cannot prevent all injuries. Air bags work best when used in conjunction with seat belts.
Unbelted occupants will normally experience much more movement or “excursion” during a crash, when compared to a belted occupant. For example, a front seat unbelted occupant will travel forward and hit his knees on the lower dash panel, known as the knee bolster, during a frontal crash. Knee bolsters are typically steel or structural plastic panels covered by trim. They are designed to absorb occupant crash energy, but they are relatively hard and rigid. Also, an unbelted occupant is much more likely to penetrate through, miss, or slide off the air bag and strike an interior component like the header, A-pillar, or windshield.
Even worse, an unbelted occupant can easily be ejected from the vehicle during a crash (Figure 6). Ejection from the vehicle is extremely dangerous. It is much safer to remain inside the vehicle during a crash. It is not safer to be thrown clear of the vehicle (another myth). According to National Highway Traffic Safety Administration (NHTSA) (safercar.gov), only two percent of all crashes involved a rollover, but rollovers accounted for 35 percent of all traffic fatalities due to partial or full occupant ejection and other factors.
Figure 6. Occupant ejection through windshield (abcnews.go.com)
Air bag myth #5
“My air bag was smoking, so it must have been on fire.”
All air bags are inflated by gas-generating devices that include some type of ignition train. An igniter or “squib” is a small “micro” gas generator that starts the inflation process. The squib produces a small amount of hot gas that ignites booster material, which in turn produces more hot gas that ignites the main solid propellant. The propellant converts to harmless nitrogen gas and fills the bag. Hybrid-technology air bag inflators use a smaller amount of solid fuel to heat compressed gas that expands and fills the bag.
Some smoke or widely dispersed particulates are produced as a byproduct of air bag inflator ignition and deployment. Most of the heavy particulates are trapped by filters in the inflator, but some of the smallest particulates pass by the filters and enter the bag as smoke. Since the bag is typically stitched and semi-porous or vented, some of the smoke exits the bag during deflation. That smoke is visible inside the vehicle but is mostly harmless. The smoke is a normal byproduct; it does not mean the air bag was on fire.
Early air bag cushions were made from state-of-the-art fabric at that time. Since fabric long-term aging and friction were concerns, the air bag cushions were often coated with cornstarch or talcum powder to keep the fabric soft and lubricated. With the advancement of better fabrics over time, the use of cornstarch or talcum powder on air bags was abandoned many years ago.
What happened to Tiger Woods
As you likely heard, Tiger Woods was involved in a very serious car crash a while back. He was reportedly traveling north on a curvy downhill stretch of road in Los Angeles County, on his way to a TV shoot with other celebrities. Tiger was driving a 2021 Genesis GV80 SUV.
Police said the Genesis contacted the dividing median and struck a wooden sign before crossing two southbound lanes. The Genesis then reportedly struck a curb and some trees, causing it to overturn and roll several times. There was heavy impact damage to the front end and light-to-moderate damage on the rear quarter panels and rear end.
The Genesis driven by Tiger was equipped with 10 air bags, including a front center air bag for side impacts (Figure 7). At least eight of the 10 air bags deployed during the crash. The driver steering wheel and knee air bags deployed due to the frontal impact. The left and right side-curtain air bags and front and rear seat side air bags also deployed for rollover protection.
Figure 7. Genesis GV80 (hooniverse.com)
Tiger was reportedly belted. Although he was protected with a driver knee air bag, Tiger still sustained multiple serious fractures to his lower right leg, ankle, and foot. His injuries were possibly caused by intrusion of the driver footwell. Tiger did not sustain any significant injuries to his head, chest, or vital organs. He can attribute his survival – from what could have been a fatal crash – to the vehicle’s overall structural integrity and crashworthiness, his seat belt usage, and air bag protection and safety containment.
First invented in the early 1950s, air bags have been in production vehicles since the ‘70s and ‘80s. Although the general concept seems rather simple, air bags are very sophisticated and complicated devices. Special sensing and gas-generating technologies had to be developed to implement air bags. A lot of that technology is tightly packaged and hidden away inside the vehicle. For various reasons, there are several misconceptions or myths about air bags. This article attempted to dispel some of those myths with factual and detailed information… and rocket science.
About the author
John G. Bauer is a forensic mechanical engineer, certified traffic crash reconstructionist, and vehicle occupant restraints expert for Rimkus in Raleigh, North Carolina. His experience includes 25 years in the automotive industry, most of that designing and developing seat belts and air bags. He conducted vehicle crash testing and simulations to optimize passenger safety. He has 11 US patents and was a featured speaker and author for the Society of Automotive Engineers. Since becoming a forensic expert, Mr. Bauer has consulted on various transportation-related matters and reconstructed hundreds of traffic accidents. He has investigated Takata air bag recalls, go-cart and ATV rollovers, and wheelchair accessible vans with safety restraints failures. He was retained as a seat belt expert for a high-profile fatal accident of a young boy on a 168-foot high water slide at the Schlitterbahn Waterpark in Kansas City, KS, in 2016. He enjoys vehicle and home restoration, golf, boating, and other activities with his family and friends.
By: Michael Fryar & Betsy KeeslerInQuis Global, LLC
Evidence-based life care plans and earning capacity assessments ostensibly may not appear to have similarities. However, close examination of their foundation requirements and overall tenets reveals both categorically have common and related developmental connections. This article will review these specific forensic work products with an end goal of identifying their developmental parallels and common denominators.
EVIDENCE-BASED LIFE CARE PLANS
A life care plan is formally defined within the published 2015 Standards of Practice (Third Edition) by the International Association of Rehabilitation Professionals (IARP) and the International Academy of Life Care Planners (IALCP) as follows:
“The life care plan is a dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.”
An evidence-based and credible life care plan will be based upon adherence to published peer-reviewed life care planning standards of practice and empirically validated consensus statements. These guiding tenets inform the Life Care Planner of the methodological processes and the types of evidence/data necessary for their plans. The categorical types of evidence, data and guidelines utilized during the development of an evidence-based life care plan include:
Many actively practicing Life Care Planners maintain life care planning certification through the International Commission on Healthcare Certification (ICHCC). The ICHCC’s current practice standards and guidelines were released in 2021 and should be followed by all persons certified by the Commission. In addition to the ICHCC, three professional groups have developed standards for life care planning practice, to include the International Academy of Life Care Planners (IALCP), the American Association of Nurse Life Care Planners (AANLCP), and the American Academy of Physician Life Care Planners (AAPLCP). The standards from all three professional groups have been analyzed and the outcomes published within the Journal of Life Care Planning (Gamez, Johnson & Stajduhar, 2017). In summary, all three sets of published standards present the need for professional collaboration when developing a life care plan. Specifically, the noted 2017 peer-reviewed life care planning publication concluded the following:
“Based upon a review of data from each of the three documents, overlap is apparent. Specific reference to collaboration is seen throughout all three standards of practice, reinforcing the interdisciplinary nature of life care planning.”
In addition to published standards, consensus and majority statements have been developed for the practice of life care planning. The most current version is found published within the Journal of Life Care Planning (Johnson, C; Pomeranz, J. & Stetten, N, 2018). The publication outlines that the findings reached are applicable to all Life Care Planners, regardless of their educational/occupational background and/or professional affiliation. Of note, 89 full consensus statements were published during 2018, secondary to the Delphi study, which evaluated decades of professional Summit information with the aid of Life Care Planners across multiple committees and rounds of formal analysis.
Echoing the themes of published standards, the consensus reached through the past Delphi study included collaboration with health care providers/professionals as an essential requirement for the development of a life care plan. Thus, such collaboration should be readily evident through clear documentation within an evidence-based life care plan. Specifically, published life care planning consensus includes the following foundational requirements for a life care plan:
“84. Review of evidence-based research, review of clinical practice guidelines, medical records, medical and multidisciplinary consultation and evaluation/assessment of evaluee/family are recognized as best practice sources that provide foundation in life care plans.”
Life Care Planners emerge from a variety of health care and educational backgrounds, such as Nursing, Medicine, Allied-Health, Mental Health/Counseling, etc. Each of these professionals has a well-defined scope of practice, in which they must remain, when developing a life care plan. As such, rarely, if ever, is one person fully qualified to make all the recommendations for a comprehensive and evidence-based life care plan. Therefore, it is imperative that the Life Care Planner collaborate with appropriate and necessary treating and/or evaluating health care providers to obtain plan recommendations that are outside of their scope of practice. More precisely, published consensus outlines the following requirements for the Life Care Planner:
“81. Life care planners seek recommendations from other qualified professionals and/or relevant sources for inclusion of care items/services outside the individual life care planner’s scope(s) of practice.”
As a basic example, Registered Nurses (RNs) cannot prescribe medications. It would be outside of their professional scope to attempt such. Therefore, medication recommendations within the life care plan must have a foundation from a qualified health care provider who is able, by virtue of their scope of practice, to prescribe medications.
In addition to establishing foundation through health care collaboration, a Life Care Planner can document direct connections between an evaluee’s medical records and/or health care providers’ testimony to the future care and treatment recommendations of their plans. However, Life Care Planners should not attempt to fill in the informational gaps pertaining to the frequency and duration of future care and services when such matters are outside of their scope of professional practice(s) and were not clearly documented within the medical records or testimony reviewed.
Also, published life care planning consensus requires the Life Care Planner to include relevant evidence-based research and guidelines within their plan’s foundational framework. Such resources may include guidelines from medical academies, professional associations and/or governmental agencies, etc. as well as peer-reviewed journal publications. Based upon consensus, the overall research, resources and processes utilized during life care plan development must be reliable, consistent, transparent and credible.
The consensus statements require verifiable data from appropriately referenced resources be used during the development of a life care plan. The plan’s cost data, when reviewed through the same sources by another Life Care Planner, should be reproducible. Also, the costs identified in a plan should be geographically specific to the evaluee. Costs of medical care and treatment are not equivalent across the country, a state or even a larger region for that matter. Moreover, the life care planning community has adopted the use of Usual, Customary and Reasonable (UCR) costs, as defined by the American Medical Association (AMA), for the development of a life care plan. This matter is outlined within a field treatise, the Life Care Planning and Case Management Handbook (Fourth Edition, Weed & Berens, 2018). Due to the requirements inherent for the defining of UCR, more than one cost source will need to be utilized by Life Care Planners in their plans. The same requirement of multiple cost estimates is outlined within the published consensus statements. Per consensus, the cost data of a life care plan should reflect market rate pricing and not be discounted in any manner. Finally, as with all data and processes of the life care plan, the cost data utilized should be reliable, consistent, transparent and credible.
Published consensus requires that the life care plan be individualized to the evaluee. Such developmental requirements apply to all aspects of the plan to include the life expectancy projection. Most Life Care Planners are not life expectancy experts, and therefore must rely upon the expertise of other professionals for an individualized account of the evaluee’s expected longevity. The peer-reviewed life care planning literature outlines the complex methodological processes necessary to arrive at individualized conclusions of life expectancy for a life care plan, and strongly cautions against endorsing only general population findings. As consistent with the need for medical foundation when qualifying treatment requirements outside of one’s scope of practice, the Life Care Planner, that is not a life expectancy expert, should defer life expectancy determinations to a qualified expert. Otherwise, the Life Care Planner would be guilty of providing an opinion that violates accepted life care planning consensus and standards.
Hypothetical case scenarios and subsequent reviews are offered below for illustrative and educational purposes regarding evidence-based life care plans:
A 28-year-old male evaluee suffered a Traumatic Brain Injury (TBI) after falling from a third story building under construction. The TBI resulted in multiple long-term issues including executive deficits, vision deficits, hearing deficits, depression and anxiety. Following the completion of inpatient rehabilitation care, the evaluee was discharged to his home within the community. A Registered Nurse (RN), who is also a Certified Life Care Planner (CLCP), completed a life care plan for the evaluee. The life care plan’s narrative included a summary of the medical treatments received thus far by the evaluee from the medical records. Also, the life care planning narrative outlined past diagnostic testing completed, a list of the evaluee’s current medications and dosing, and the identification of all records that had been analyzed by the Nurse. Her plan included outpatient medical services the evaluee was actively receiving: Physiatry, Neuro-Ophthalmology, Neurology, Audiology, and Psychology. Based upon her clinical knowledge, the RN, independently and without collaboration, determined all the future medical and psychological care, diagnostic testing, medications, future attendant care, and other support services needed by the evaluee, including their future frequency and duration. Such future care information was not found within any of the medical records reviewed and testimony from the health care providers had not been obtained before release of the life care plan.
Development of the life care plan did not include any type of documented collaboration with a treating or evaluating health provider for the evaluee. Also, there was not any direct link made between the medical records reviewed and the specific treatment/care recommendations as issued within the life care plan by the Nurse. Moreover, the Life Care Planner did not identify any clinical practice guidelines, empirical research or peer-reviewed literature as specific foundation for the content of her plan. Finally, the Life Care Planner did not have testimony from a treating or evaluating health care provider for foundation either. In summary, the RN acted well beyond her scope of practice when she independently opined about future care and treatment for the evaluee absent necessary medical foundation for the same. Ultimately, the life care plan lacked the required credible and reliable data, as well as the overall foundational information necessary to formulate an evidence-based plan that is consistent with published life care planning consensus and standards.
A 56-year-old female was involved in a motor vehicle accident (MVA). The car exploded before the evaluee could be evacuated by emergency personnel. As a result, the evaluee suffered second and third degree burns over 60% of her body. After receiving extensive acute care services, she was discharged home and began outpatient services, wherein she received care and treatment from a Physician Burn Specialist, Reconstructive Burn Surgeon, Physical Therapist, Occupational Therapist, and Psychologist. The evaluee’s subsequent life care plan was developed by a Certified Rehabilitation Counselor (CRC). The Life Care Planner completed an in-home assessment of the evaluee, and multiple consultations were accomplished by him with the outpatient medical and clinical treatment teams. The consultative recommendations received were carefully documented by the Life Care Planner and fully endorsed through signature by the treatment teams. Subsequently, these medical and clinical recommendations were included into the evaluee’s life care plan. The CRC independently made recommendations for future vocational rehabilitation services within the life care plan. Also, the CRC made direct reference to published clinical practice guidelines for burn care, and peer reviewed journals regarding the psychological supports necessary to aid with emotional adjustment following a severe burn. Also, additional pertinent details of current treatment, as found within the medical records, was noted within the life care plan. The life care plan included a comprehensive list of all medical, clinical and legal documents reviewed during development. Present-value calculations were deferred to an Economist and total calculations were not issued by the Life Care Planner within the plan. Finally, the Life Care Planner deferred the determination of an individualized life expectancy for the evaluee to a qualified expert.
This Life Care Planner included multiple areas of foundation needed for an evidence-based life care plan. Of important note, the CRC remained within his scope of practice and relied upon other qualified health care providers, published clinical guidelines, literature, and medical records to support the recommendations of the plan. The CRC appropriately deferred other related determinations to qualified experts (i.e., present-value calculations and life expectancy). Overall, the life care plan contained credible and reliable data as well as the foundational information necessary to formulate evidence-based conclusions that are consistent with published life care planning consensus and standards.
EVIDENCE-BASED EARNING CAPACITY ASSESSMENTS
Similar to the life care plan, the determination of an evaluee’s earning capacity before and after an injury and/or chronic health condition is a complex endeavor, requiring adherence to a peer-reviewed and accepted methodology, as well as professional standards. Typically, professionals completing these assessments have an educational and professional background in vocational rehabilitation. A properly developed earning capacity analysis should incorporate evaluee assessment information, standard classifications, relevant research data, statistical information and foundation from necessary medical and/or clinical professionals. The objective evidence, information and data gathered should inform the final clinical judgements reached regarding an individual’s overall capacity for employment and wages within the competitive labor market.
The Commission on Rehabilitation Counselor Certification (CRCC) is the governing national professional organization that manages the Certified Rehabilitation Counselor (CRC) credential as maintained by many of the vocational rehabilitation professionals completing earning capacity assessments for forensic purposes. Published CRCC forensic standards require the utilization of methodologies appropriate to the evaluation process performed. There are multiple published earning capacity methodologies within the peer-reviewed vocational rehabilitation literature. These published methodologies provide the structure and guidance necessary to arrive at objective and valid earning capacity conclusions. A Forensic Vocational Rehabilitation Consultant (FVRC) should be able to discuss the specifics of the published earning capacity methodology adhered to during the assessment process and fully describe the data/evidence utilized for final clinical judgements/opinions.
Qualitative analysis of the content factors found within earning capacity assessment reports has been accomplished and the empirical findings were published within the peer-reviewed Rehabilitation Professional journal (Robinson, Young & Pomeranz, 2009). Specifically, the research determined 22 factors were included within at least 50% or more of the forensic vocational rehabilitation reports analyzed regarding employability and earning capacity.
The specific 22 content factors identified included:
The core 22 factors identified through empirical analysis should, at minimum, be considered by a FVRC during the course of analyzing an evaluee’s earning capacity and arriving at evidence-based conclusions. Also, during the course of earning capacity assessment, evidence-based practice requires the consultant to directly consider objective data. Specifically, published CRCC standards require the FVRC utilize objective data for the determination of unbiased evaluation conclusions (CRCC Code, Section F: Forensic Services). The sources of such data may vary, but often include information from governmental surveys, wage and employment databases, professional associations, non-profit organizations, trade associations, research centers, peer-reviewed literature, published professional/medical guidelines, industry literature, and United States Department of Labor (USDOL) publications, as well as the evaluee’s tax, employment and academic records, etc.
Multiple published CRCC advisory opinions outline that it is outside the scope of professional practice for a Certified Rehabilitation Counselor (CRC) to determine any type of functional work capacity for an individual. Moreover, based upon vocational rehabilitation treatises, such decisions should be made by qualified and licensed physicians and/or mental health practitioners (Robinson, 2014 and Weed & Field, 2012). In contrast, the FVRC’s professional role includes evaluating and determining the individualized impact that medically and/or clinically established physical, mental and/or environmental guidelines will have upon an evaluee’s employability, placeability and overall earning capacity. In summary, it is professionally inappropriate for a FVRC to determine or assign a specific occupational strength level or other functional, environmental, cognitive or psychological work parameter to an evaluee in the absence of foundation established by a licensed physician or other qualified health care provider.
Ultimately, within the guiding context of a published methodology and professional standards, and based upon assessment findings, objective data, research analysis and the application of informed clinical judgement, the FVRC can, to a reasonable degree of probability, reach conclusions regarding an evaluee’s pre-injury and post-injury earning capacities. Specifically, published peer-reviewed literature within Rehabilitation Professional (Field, Choppa & Weed, 2009) outlines that clinical judgements/opinions should include relevant information/data, follow a widely accepted and peer-reviewed methodology, adhere to relevant standards of practice, utilize statistical studies and, when professionally necessary, include valid and reliable testing instruments. Finally, the authors outline that the judgements/opinions reached by the Rehabilitation Professional must be unbiased, ethical and professional in nature.
After appropriate clinical judgements/opinions are finalized and the overall earning capacity assessment report is completed, the information can be provided to a Forensic Economist (FE) for calculation(s) related to the determination of present value. A forensic vocational rehabilitation treatise (Robinson, 2014) describes the following, relative to the professional hand-off between the Vocational Rehabilitation Expert (VE) and the Forensic Economist (FE):
“As will be seen, the typical relationship between an FE and a vocational rehabilitation expert (VE) is that the VE provides the FE with differentiations of a postinjury earning capacity scenario from a preinjury scenario in a personal injury case, so that the FE can estimate the present value of lost earning capacity and perhaps other categories of economic damages.”
Hypothetical case scenarios and subsequent reviews are offered below for illustrative and educational purposes regarding evidence-based earning capacity assessments:
A 55-year female was evaluated by a Forensic Vocational Rehabilitation Consultant (FVRC) secondary to a slip and fall that caused herniated discs for both her lumbar and cervical spine. After multiple spine surgeries and the establishment of Maximum Medical Improvement (MMI), the evaluee continued to report cervical, lumbar and right leg pain, as well as moderate to severe functional deficits. She was not actively working. The FVRC did not review the evaluee’s past tax records, testimony or employment file information during his analysis. The FVRC concluded based upon his professional experiences and assessment, the evaluee was physically unable to work and earn a gainful wage within the economy. He specifically indicated the evaluee was physically incapable of functioning at the United States Department of Labor’s (USDOL) Sedentary strength level for a full-time or part-time occupation within the open labor market. A treating or evaluating physician had not issued any medical conclusion regarding the evaluee’s work capacities. Also, the FVRC concluded it was likely the evaluee would have worked until the age of 85, had the fall not occurred, as a Registered Nurse (RN), receiving wages at the 90th percentile for the occupation nationally throughout her remaining career. However, the evaluee had only demonstrated maximum mean annual earnings as a Registered Nurse (RN) in her region before the fall. The FVRC did not make any reference to published work-life expectancy data before rendering his opinions.
The case scenario has multiple professional errors and omissions. The FVRC did not have the necessary medical foundation to support his independent conclusion that the evaluee had physical capacities that were functionally below USDOL Sedentary strength. Physical capacities are determined by appropriately licensed health care providers and are certainly beyond the scope of practice for a Rehabilitation Counselor. Secondly, the FVRC did not reference a published methodology, or any objective data, to determine past or future earning capacities for the evaluee. Lastly, the FVRC did not incorporate any objective data from an empirical source to define the evaluee’s work-life expectancy. Due to the nature and extent of these professional errors and omissions, the FVRC would not be able to derive reliable and valid evidence-based earning capacity conclusions for the evaluee.
A 45-year-old male sustained a Mild Traumatic Brain Injury (M-TBI) secondary to a motor-vehicle accident (MVA). The MVA and M-TBI resulted in mild deficits related to concentration, attention and processing speed for the evaluee, as described within the treating physician’s records and confirmed through valid neuropsychological testing by a qualified Neuropsychologist. A Forensic Vocational Rehabilitation Consultant (FVRC) was requested to complete an earning capacity assessment of the evaluee. The FVRC completed an onsite assessment of the evaluee with standardized testing. She subsequently consulted with the treating Brain Injury Physiatrist and the evaluating Neuropsychologist regarding the evaluee’s overall capacities for future work. The consult findings were documented through signed summaries from the health care providers and included into the earning capacity assessment report. Also, the FVRC noted that she followed the peer-reviewed and published RAPEL methodology during completion of her earning capacity assessment and documented the same methodological process within the report. The evaluee’s employment files and taxes for multiple years (both before and after the MVA) were reviewed. Published USDOL employment and wage statistics were analyzed for the evaluee’s region and included within the earning capacity assessment report. A standard Transferability of Skills Analysis (TSA) was performed to define the evaluee’s employability. Published and peer-reviewed work-life expectancy data was gathered and included in the report. Based upon all the assessment, data and information researched and analyzed, the FVRC rendered conclusions pertaining to the evaluee’s partial loss of wage-earning capacity after the accident, and she quantified the specifics of the earning capacity loss through her report. The findings from the FVRC were subsequently reviewed by an evaluating Forensic Economist (FE) who applied present-value calculations to the data and earning capacity conclusions reached by the FVRC.
The earning capacity evaluation process described above followed accepted standards, methods and data requirements necessary to facilitate arrival at evidence-based earning capacity conclusions for the evaluee. Specifically, the FVRC utilized an accepted published methodology, objective data, appropriate analysis tools, statistics and necessary medical/clinical foundation to reach informed conclusions regarding the evaluee’s earning capacities.
SUMMARY & CONCLUSIONS
Life Care Planners and Forensic Vocational Rehabilitation Consultants have similar categorical requirements for the production of their evidence-based evaluation reports. Life care plans and earning capacity assessment reports both require the utilization of an accepted published methodology and the utilization of objective data, research and guidelines to objectively substantiate the professionals’ overall conclusions. Moreover, both the Life Care Planner and the Forensic Vocational Rehabilitation Consultant must rely upon an appropriate health care foundation when specific determinations necessary for their opinion formation are outside of their professional scope(s) of practice. Finally, these two types of damage experts must apply the parameters of informed clinical judgement/opinion formation to reach objective conclusions within their scopes of practice. The utilization of life care planning and earning capacity assessment experts well-versed in necessary evidence-based practice requirements is critically important to the establishment of valid and reliable damage conclusions after an injury and/or a chronic health condition has occurred. The Life Care Planner or Forensic Vocational Rehabilitation Consultant that does not adhere to established evidence-based parameters for the determination of their conclusions places their forensic work product in jeopardy of not being accepted into the evidentiary record.
By Taylor Richards, Garrison Law Group PLLC
The Medical Malpractice Group offers the following updates on several issues that are significant to our members: the upcoming lifting of the COVID-19 State of Emergency and its impact on application of immunities, tips on trying cases during a pandemic, and recent appellate decisions.
COVID-19 State of Emergency To Be Lifted August 15
Governor Roy Cooper recently announced that North Carolina’s State of Emergency Order—originally issued on March 10, 2020—will be lifted on August 15, 2022. https://www.newsobserver.com/news/politics-government/article263365608.html. Termination of the Order will have a significant impact on application of COVID-19 immunities enacted by our legislature, as discussed in an outstanding article by Christopher G. Smith, James C. Wrenn Jr., and David Ortiz: https://www.smithlaw.com/resources-publications-1937. As detailed in that article, immunity for negligent transmission of COVID-19 will essentially continue for an additional 180 days, but the temporary immunity for civil liability (which provided “broad protection against most ordinary negligence”) established by SB 704 will end on August 15, 2022. https://www.smithlaw.com/resources-publications-1937.
Tips on Trying Cases During a Pandemic
The Medical Malpractice breakout session at the NCADA Annual Meeting in June featured an outstanding panel discussion with tips on trying cases during the pandemic. Our esteemed panelists were Chip Holmes, Jerry Allen, Pat Meacham, and Barrett Johnson.
The panelists agreed that jury selection has been greatly affected by the pandemic. One panelist realized how much he relies on facial expressions during voir dire, finding that it was quite difficult due to masking. Masking procedures have varied from county to county. Some courtrooms are now “back to normal” in the sense that jurors are not required to be masked, and courtroom logistics are back to pre-pandemic status. Other courtrooms may still require masks. Some judges allow masked jurors or witnesses to pull their masks down when they are testifying.
Discussion of COVID-19 issues during voir dire also varies. One panelist had opposing counsel file a motion in limine seeking to prevent any discussion of COVID-19, and that motion was granted. In contrast, in other cases, counsel directly asked jurors how the pandemic has impacted them and their families. A member of the panel found that due to the challenges of a COVID courtroom, voir dire would take longer because of counsel digging deeper during questioning.
One particularly unpleasant scenario involves what to do if a juror tests positive for COVID-19 during trial. One panelist asked the judge to continue the trial to another date to maintain the current jury. That request was denied. As with the pandemic itself the logistics and practice of trying cases is constantly evolving. However, the panel provided important tips and tricks that will not only be instructive to our practice in COVID-19 courtrooms, but also will help serve our clients in a “normal” courtroom setting.
Recent Medical Malpractice Appellate Decisions
At the Annual Meeting in June, Leslie Packer provided an extensive update on recent decisions. The excellent manuscript authored by her and Dixie Wells is here. (“Wells & Packer”). Three cases of the cases discussed in their paper are of particular interest to the Medical Malpractice Group: (1) Blue v. Bhiro, 871 S.E.2d 691, 2022-NCSC-45 (N.C. 2022); (2) Bryant v. Wake Forest Univ. Baptist Med. Ctr., 870 S.E.2d 269, 2022-NCCOA-89 (N.C. App. 2022); and (3) Hall v. Wilmington Health, PLLC, 2022-NCCOA-204 (N.C. App. 2022).
The Hall case addressed a deponent’s right to have counsel physically present while testifying, even in a pandemic setting. Specifically, “the court of appeals considered whether a trial court’s order prohibiting a medical center’s counsel from being physically present with the center’s own witness during remote depositions violated the center’s constitutional right to due process.” (Wells & Packer, p. 64). The Court reversed and remanded, and Chief Judge Stroud wrote for the majority. The Court held that “[t]his wholesale ban on personal attendance of Defendant’s counsel at depositions of its own employees and witnesses presented the constitutional issue Defendant asserts in this appeal and was not supported by existing law, emergency orders or evidence. … The trial court’s order violated Defendant’s constitutional right by prohibiting counsel from being physically present at depositions of its own employees and witnesses.” Hall at ¶3.
The Bryant case addressed a variety of issues, including whether an implanted device should be considered a “foreign object” under North Carolina law. Procedurally, the Court of Appeals in Bryant “considered whether a doctor had sufficiently shown an absence of material fact necessary to receive summary judgment on his former patient’s claims against him for actual and constructive fraud, res ipsa loquitur, breach of fiduciary duty, and medical malpractice. (Wells & Packer, p. 86). Plaintiff alleged that a “Gore-Tex barrier” that the defendant implanted years ago caused her infertility. Bryant at ¶6. ¶23. Regarding the actual fraud, breach of fiduciary duty, and constructive fraud claims the court held the Defendants were entitled to judgment as a matter of law. Id. at ¶14, 23. The Court “agree[d] with the trial court that res ipsa loquitor cannot apply because a layperson, without the assistance of expert testimony, could not infer negligence from the facts of this case based on common knowledge and ordinary human experience.” Id. at ¶27. The Court also addressed whether the Gore-Tex barrier had a therapeutic purpose and was not a “foreign object,” which would trigger the 10-year statute of limitations. The Court found that the Gore-Tex barrier had a therapeutic purpose or effect, relying on the trial court finding: “’Plaintiff’s and Defendant’s experts agree that Gore-Tex can be properly used as an adhesion barrier to prevent pelvic adhesion formation and that such a use is therapeutic.’” Thus, affirming the trial court’s application of the 4-year statute of limitations. Id. at ¶30. Regarding the punitive damages claim the court held “because we hold that the trial court properly granted summary judgment on each of Plaintiff’s claims above, Plaintiff has no independent basis for punitive damages and this claim necessarily fails.” Id. at ¶ 43.Finally, in the Blue case, the North Carolina Supreme Court “considered whether inclusion of additional facts not in the pleadings converted a trial court’s order on a Rule 12(b) motion to dismiss to a motion for summary judgement under Rule 56.” (Wells & Packer, p. 84). The Court reversed the Court of Appeals, holding that “the trial court did not consider matters outside the pleading and thus was not required to convert the motion.” Blue at ¶ 1. In Blue, the plaintiff alleged that the defendants “were negligent by failing to provide follow-up care after learning the results of the 24 January 2012 PSA test and failing to diagnose plaintiff with prostate cancer.” Id. The Court of Appeals held that the trial court did not expressly exclude facts in the parties’ memoranda and arguments (facts that were not in the Complaint), so the trial court “’considered matters beyond the pleading,’” which converted the motion to dismiss to a summary judgment motion. Id. at ¶6. The North Carolina Supreme Court disagreed, finding that the trial court’s order did not mention any additional documents outside the parties’ memorandums. The defendants’ memorandum “included the pleadings, a statute, and case law as exhibits, but did not include any evidentiary materials” and the plaintiff “did not include any exhibits with his memorandum.” Id. at ¶13. Further, plaintiff’s counsel’s factual assertions in his memorandum and oral arguments were “not evidence and thus are not matters outside the pleading.”
Pamela Graham, MSN, RN, LNC
There was a collective gasp across the country amongst all health professionals following the criminal conviction of Tennessee Registered Nurse RaDonda Vaught for “reckless homicide” and “gross neglect of an impaired adult." For any practicing nurse, the precedence of this conviction and the staffing and prevention issues surrounding COVID are enough to make any nurse immediately resign or retire. Is it any wonder the nursing shortage has roused itself once again?
As a defense attorney, your reassuring strengths and skills are to guide your client through a most confusing and frightening time in their career and, now, as Ms. Vaught can attest, life. The nurse must journey through the trauma of a licensing hearing process that may likely take his or her professional license, livelihood and a beloved profession. There is also the probability of a civil suit for “wrongful death” or some claim of harm for which, hopefully, professional liability insurance will cover.
Criminal charges must be the worst issue to face. In North Carolina, the charge probably would have been “involuntary manslaughter," the “unintentional killing of another person resulting from recklessness or criminal negligence.” As a defense attorney, defining “intent” and “recklessness” comes with the job; however, how do you define the intent of a nurse who removes the wrong drug from an electronic medication dispensing machine? A machine that required being overridden to obtain the medication ordered? Within a delivery system that apparently required nurses to consistently override it to obtain different medications? Is that “recklessness”? Or is that the current ‘standard’ for that facility at that moment?
There were other extenuating circumstances that drew concerns about the Just Culture philosophy to which we supposedly espouse. While Ms. Vaught reported her error and admitted her fault, the health care delivery system failed to report the incident to the State as required. Ultimately, Ms. Vaught’s failure was that she did not confirm that she had the right medication. The institution failed to report a Sentinel Event. They had the ‘deep pockets’ to settle the case. Ms. Vaught faced criminal charges. It was a horrific error and caused the death of a family’s loved one.
Then comes Michelle Hewitt, a Forsyth County correctional facility nurse charged with “involuntary manslaughter” or “criminal negligence” in the death of inmate, John Neville. Mr. Neville reportedly fell from his bunk and was rendered aid by five correctional officers and Ms. Hewitt. He unfortunately passed away under their care. Now, all five correctional officers and Ms. Hewitt have been charged. It would be interesting to see what failures in the system, aggravating factors and mitigating circumstances influenced this horrible incident.
Defense attorneys have their work cut out for them. Having a Legal Nurse Consultant on your team can help find these nuances and details to define what was “negligent” or “reckless." An LNC is a Registered Nurse who has practiced in a clinical setting and understands what it is like “inside” the practice setting. Most have regulatory experience with a good grasp of what standards and deviations from those standards mean. They can quickly help identify where and how the failures occurred and guidance on evidenced-based references and resources. The LNC can also serve as a trusted colleague and counselor for your nurse-client enduring probably the most frightening time of his or her career.
Don’t go it alone! Have a Legal Nurse Consultant for your team when needed to assist and advise. Your health professional clients will thank you!
Pamela Graham, MSN, RN, LNC is a Legal Nurse Consultant with Pamela Graham LNC, PLLC.
She is a member of the American Association of Legal Nurse Consultants.
by Jeffrey Kuykendal, McAngus Goudelock & Courie, LLC
On May 3, 2022, in Tutterow v. Hall, No. COA21-326, 2022-NCCOA-300, the North Carolina Court Appeals answered the question of how to calculate the underinsured motorist (“UIM”) coverage in a case involving both multiple underinsured tortfeasors and multiple UIM insurance policies.
On October 21, 2014, Vivian Tutterow was a passenger in a vehicle being driven by Pamela Crump. At that same time, Brian Hall was operating a vehicle owned by Kris Hall, his mother, and while in the course and scope of his agency relationship with Randy Hall Automotive, LLC. Ms. Crump stopped her vehicle in a lane of travel and Mr. Hall collided with the back of her vehicle resulting in Ms. Tutterow’s death.
Ms. Crump had an auto policy issued by Horace Mann with a $100,000 per person liability limit and a $100,000 per person UIM coverage limit. Mr. Hall was covered by an auto policy issued by Nationwide with a $100,000 per person liability limit. Ms. Tutterow also had an auto policy issued by State Farm with a $100,000 per person UIM coverage limit.
On October 10, 2016 Horace Mann tendered the $100,000 limits of its liability policy on behalf of Ms. Crump. On October 18, 2016, Nationwide tendered the $100,000 limits of its liability policy on behalf of Hall. Several weeks later, Ms. Tutterow’s estate informed the UIM carriers of the tenders, but advised that it had not accepted the tendered limits. Neither Horace Mann nor State Farm advanced any UIM coverage at that time.
In June 2017, Plaintiff informed the UIM carriers that it had accepted the liability limits of Ms. Crump’s policy. Soon thereafter, State Farm, in light of the North Carolina Supreme Court’s decision in Lunsford v. Mills, 367 N.C. 618, 766 S.E.2d 297 (2014), advanced $100,000 to Tutterow’s estate under its UIM policy while expressly reserving its rights to recoup those funds should Plaintiff recover some or all of the liability limits from the Nationwide policy.
In July 2019, Plaintiff informed the UIM carriers that it had accepted the liability limits of Mr. Hall’s policy. Shortly thereafter, State Farm requested that Plaintiff reimburse the $100,000 that it had advanced in 2017. The funds were placed in escrow and Plaintiff filed a declaratory judgment action to determine the obligations of the UIM carriers.
Plaintiff contended that the stacked per person limits of the two UIM policies, $200,000, was to be compared to the liability limits of Ms. Crump’s policy and Mr. Hall’s policy separately, meaning Ms. Crump was underinsured by $100,000 and Mr. Hall was also underinsured by $100,000. Further, Plaintiff argued State Farm had waived its right of subrogation by failing to timely advance within 30 days of notice of the tender of the liability limits. The UIM carriers contended that the stacked per person limits of the UIM polices were to be compared to the combined limits of the tortfeasors’ liability policies, meaning no underinsured motorist coverage was owed and that State Farm was entitled to reimbursement.
After the trial court granted summary judgment to the UIM carriers, Ms. Tutterow’s estate appealed to the North Carolina Court of Appeals.
The North Carolina Court of Appeals focused on the language in the Financial Responsibility Act. See N.C. Gen. Stat. § 20-279.21. The Court held:
Under the statute, the calculation of applicable UIM coverage has three basic steps. First, the reviewing court must determine if a torfeasor’s vehicle meets the definition of an “underinsured highway vehicle.” If so, the court must determine if the limits of that tortfeasor’s liability policy are exhausted. Finally, if those liability limits are exhausted, the court must calculate the amount of coverage that is available under the applicable UIM policy.
Under the statute, the calculation of applicable UIM coverage has three basic steps. First, the reviewing court must determine if a torfeasor’s vehicle meets the definition of an “underinsured highway vehicle.” If so, the court must determine if the limits of that tortfeasor’s liability policy are exhausted. Finally, if those liability limits are exhausted, the court must calculate the amount of coverage that is available under the applicable UIM policy.
The Court noted that it was not disputed that the first two steps were satisfied and that UIM coverage was triggered. Thus, all that remained was to calculate the amount of UIM coverage available.
The Court determined the answer was in the unambiguous language of N.C. Gen. Stat. § 20-279.21(b)(4). The Court focused on the sentence, which provides:
Furthermore, if a claimant is an insured under the underinsured motorist coverage on separate or additional policies, the limit of underinsured motorist coverage applicable to the claimant is the difference between the amount paid to the claimant under the exhausted liability policy or policies and the total limits of the claimant’s underinsured motorist coverages as determined by combining the highest limit available under each policy…
Furthermore, if a claimant is an insured under the underinsured motorist coverage on separate or additional policies, the limit of underinsured motorist coverage applicable to the claimant is the difference between the amount paid to the claimant under the exhausted liability policy or policies and the total limits of the claimant’s underinsured motorist coverages as determined by combining the highest limit available under each policy…
The Court found this sentence answered the question of what to do when multiple UIM policies apply to a claimant. The Court held “the statute provides an unambiguous method to calculate the applicable limit of combined UIM coverage: it is the difference between the total amount paid under all exhausted liability policies and the total limits of all applicable UIM policies.”
As applied to the facts of the case, the total amount paid under the exhausted liability policies was $200,000, with $100,000 from the Horace Mann liability policy and another $100,000 from the Nationwide liability policy. The total limits of the available underinsured motorist coverages was also $200,000, with $100,000 from the Horace Mann UIM coverage and another $100,000 from the State Farm UIM coverage. Thus, the difference between those two totals was $0.00, which was determined to be the amount of available UIM coverage.
Beyond the unambiguous language of the Financial Responsibility Act, the Court noted the result comported with the purpose of the Act. The purpose of UIM coverage is to put the insured in a position where total insurance coverage for injuries sustained in an automobile accident is not less than the amount of UIM coverage obtained. The Court noted, the result in this case precisely accomplished that purpose. The available UIM coverage for Ms. Tutterow was a total of $200,000, which is the precise amount tendered to the Plaintiff by the carriers for the two liability policies.
Finally, the Court held that State Farm was entitled to reimbursement of the $100,000 it advanced. The Court determined the statutory provision requiring advancement within 30 days to preserve the right to subrogation was inapplicable. Once the limits of both of the liability policies were exhausted, the UIM carriers had no duty to advance any payments because they owed nothing under their policies. Thus, because State Farm did not have an obligation to advance payment under its UIM policy, it was entitled to have its advance returned in full.
By Ross Bromberger, Hedrick Gardner Kincheloe & Garofalo, LLP
What happens when an owner brings a lawsuit against its former general contractor six years to the day from substantial completion? Or if the owner brings a suit one month before the claim is barred by North Carolina’s statute of repose but the complaint is not served until more than six years after substantial completion? In either scenario, can a general contractor bring suit against its subcontractors or are those derivative claims, either in contract, indemnity, or contribution, barred by North Carolina’s statute of repose? Unfortunately, the answer appears to be that the general contractor is barred from asserting those valuable derivative claims against the subcontractors, even though the subcontractors are often the ones that performed the work at issue.
In ESA, Inc. v. Walton Constr. Co., Inc., the Eastern District Court was faced with this exact scenario. No. 7:04-CV-75-F(3), 2007 WL 9718764, 2007 U.S. Dist. LEXIS 113115, (E.D.N.C. Mar. 16, 2007) (applying North Carolina law). Plaintiff, Extended Stay America (ESA), filed suit against its general contractor, Walton, six years to the day after substantial completion. Walton filed a third-party complaint against its subcontractor, Power Plus, which actually performed the work in dispute. Walton’s Third-Party Complaint, however, was filed six years and two months after substantial completion. At summary judgment, Power Plus sought dismissal of Walton’s Third-Party Complaint, arguing the claim was barred by North Carolina’s six-year statute of repose. In response, Walton argued that such an application of the statute of repose would be inequitable. Ruling in favor of Power Plus and dismissing Walton’s Third-Party Complaint, the ESA Court noted:
Although the court appreciates the seeming inequity of the result, [N.C.G.S.] § 1-50(a)(5)(a), (b)(6) plainly dictates it. Therefore, where, as here, an owner files an action against a general contractor for defective or unsafe conditions arising from improvement to real property on the very last day allowed by law, that same statute of repose operates to preclude that contractor from seeking contribution or indemnity from his subcontractors. The Court of Appeals of North Carolina expressly has rejected the argument that the statute of repose does not bar an action for contribution or indemnification under similar circumstances, pursuant to an earlier version of the statute. New Bern Assoc. v. The Celotex Corp., 359 S.E.2d 481, 483 (N.C. Ct. App.), cert. denied, 362 S.E.2d 782 (N.C. 1987). The court also has pointed out that “[w]hether a statue of repose has expired is strictly a legal issue . . .,” Cellu Products Co. v. G.T.E. Products Corp., 344 S.E.2d 566, 568 (N.C. Ct. App. 1986), and that where “the pleadings and proof show without contradiction that the statute has expired, then summary judgment may be granted.” Id.
ESA, at *3.
What can a general contractor do to avoid, as the ESA court noted, such an inequitable ruling? Such a question requires a closer look at North Carolina’s construction statute of repose. For construction disputes, North Carolina’s statute of repose can be found in N.C.G.S. § 1-50(a)(5), stating, “[n]o action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement.” (emphasis added).
In reviewing N.C.G.S. § 1-50(a)(5), the North Carolina Supreme Court, in Christie v. Hartley Const., Inc., undertook an inquiry as to the legislative basis and intent behind a statute of repose. 367 N.C. 534, 766 S.E.2d 283 (2014). The Christie Court noted that “[b]ecause an applicable repose period begins to run automatically, statutes of repose give potential defendants a degree of certainty and control over their legal exposure that is not possible when such exposure hinges upon the possibility of an injury to a plaintiff that may never manifest.” Id. at 539, 766 S.E.2d at 287. Therefore, as a statute of repose acts to provide a bulwark against open-ended exposure, where a business contractual modifies and extends the statute of repose, North Carolina courts will allow such modification. Id. at 539-41, 766 S.E.2d at 287-88. Such a modification is allowable as parties generally are “free to contract as they deem appropriate.” Id.
In adopting and applying Christie, Judge Bledsoe of the Business Court found that contracting parties can seek to toll the applicable statute of repose. Window World of Baton Rouge, LLC v. Window World, Inc., 2019 NCBC 10,, 2019 WL 540755, 2019 NCBC LEXIS 11 (N.C. Super. Feb. 11, 2019). In support of this position, Judge Bledsoe stated, “North Carolina courts have explicitly recognized that a statute of repose may be tolled by agreement.” Id. at 6.
Not only can a party contractually modify to extend or toll the applicable statute of repose, but contracting parties can also agree to shorten the applicable statute of repose. Tsonev for Est. of Shearer v. McAir, Inc., 272 N.C. App. 689, 847 S.E.2d 788 (2020). In Tsonev, the plaintiff-homeowners hired McAir to remediate flood damage at their personal residence. Plaintiff and McAir entered into a contract, which, in part, specifically stated, “[McAir is] not liable for any consequential incidental, indirect, punitive, treble, speculative, or special damages of any kind whatsoever, and you may not bring any action against us more than two (2) years after the Completion Date.” Id. at 694, 847 S.E.2d at 792. Five years after completion date, plaintiff-homeowners discovered defective workmanship by McAir and brought suit. Upon review of the contract, the Tsonev Court dismissed plaintiff-homeowners’ claim, stating that the contractually shortened statute of repose was allowable “[b]ecause the express provision of the contract is clear” and therefore “the contract must be enforced as written.” Id. Based upon the Tsnoev decision, it appears a party may contractually modify the statute of repose to match the three-year statute of limitations for construction claims.
Back to the question at hand: what can a general contractor do to avoid the inequity of being sued within an owner’s statute of repose but outside a subcontractor’s statute of repose? At least one of the potential answers is the contractual formation on the front end. A general contractor can contractually modify and limit the statute of repose with the owner as in Tsonev. To that end, one suggestion would be to limit the statute of repose to match the applicable statute of limitations at three years. Alternatively, a general contractor could modify their subcontract agreements to include a tolling provision pursuant to Christie and Window World. In so doing, a subcontractor’s statute of repose would be contractually tolled from the date the owner brings suit against the general contractor. While there’s no silver bullet, at least there do appear to be contractual options available to protect a general contractor against the implicit risk of the statute of repose.
Finally, what can be done if the contracts are silent on the issue of modifying or tolling the statute of repose? Under such a scenario, the options for a general contractor are limited. If, however, the owner of the project has provided notice of potential issues, it might be advisable for a general contractor to file suit against any subcontractors that performed the work in dispute to preserve any available claims. The lawsuit against the subcontractors could later be consolidated with any lawsuit that was filed by the owner but served after the statute of repose has run.
By Josh Durham, Bell Davis Pitt
North Carolina’s Rule 12(b)(6) provides, in theory, a powerful tool for a defendant to dismiss a lawsuit in its early stages. A challenge under the rule compels the trial court to consider “whether the pleadings, when taken as true, are legally sufficient to satisfy the elements of at least some legally recognized claim.”i A motion under Rule 12(b)(6) is properly granted when (1) no law supports the plaintiff’s claims, (2) the complaint does not plead sufficient facts to state a legally sound claim, or (3) the complaint discloses facts that necessarily defeat the plaintiff’s claims.ii
In other words, Rule 12(b)(6) can provide a much-desired early exit to litigation, sparing a defendant substantial expense and saving considerable time.
But there is often still a cost to pursue such a motion. Many of our commercial litigation section members practice in the North Carolina Business Court, the state’s specialized forum for cases involving complex and significant issues of corporate and commercial law. While motions in non-Business Court cases frequently do not require briefs, briefs are mandatory in Business Court cases, and they must accompany the motion.iii In 2017, the Court made clear that any defendant pursuing a motion to dismiss under Rule 12(b)(6) must do so, with a motion and supporting memorandum, prior to serving an answer.iv At least in the Business Court, this put an end to the common practice of placeholder motions to dismiss in answers, to be followed later by a more formal motion and brief.v
These days, nearly every type of case could merit a Rule 12(b)(6) motion. For example, in suits accusing another of misappropriating a trade secret, the rule can be used to dismiss the case because a plaintiff did not sufficiently describe the alleged secret. Sued for violating a covenant not to compete? Use the rule to challenge the reasonableness of the time, geography, and scope restrictions in the covenant. Rule 12(b)(6) is frequently used in corporate disputes to challenge whether an owner in a closely held entity owed fiduciary duties to another owner. And if a complaint makes reference to a contract, but does not attach it, a defendant can use the rule to introduce the actual contract.vi At that point, while still under the rule, the defendant can show that a plaintiff’s claims are clearly contrary to the parties’ written agreement.
But, are such motions ultimately worth it?
Each year, the state’s Business Court judges participate as a panel in various continuing education events. In such panels, the judges offer views from the bench, practice pointers, and tips for successfully navigating Business Court practice and procedure. Recently, one of the judges spoke on motions to dismiss under Rule 12(b)(6). The judge confirmed that nearly every type of case could merit such a motion, estimating that nine out of ten cases before the court involve a Rule 12(b)(6) motion.
And he suggested they may not always be the best approach.
Why? A dismissal under Rule 12(b)(6) is not always with prejudice, which means the case will not necessarily end if the motion is granted. A dismissal without prejudice allows a plaintiff to amend its claims, fixing any shortcomings in the allegations. The decision whether to dismiss a case with prejudice or without prejudice (and whether to allow a plaintiff to amend its claims) is entirely within the court’s discretion.vii A quick survey of Business Court cases within the last six months shows the court often exercises that discretion to dismiss cases without prejudice. Such cases include claims for:
At the recent event, the judge suggested parties should instead consider addressing shortcomings in pleadings without the court’s involvement. In other words, because a motion to dismiss and briefs from the parties might very well result in a plaintiff being given the chance to amend, the parties might save themselves considerable time and expense by just working through a complaint’s shortcomings on their own. And, if a defendant files a motion and memorandum but does not file an answer to the complaint, the plaintiff can amend the complaint as a matter of right. This moots the entire motion and memorandum. The judge suggested this was all the more reason to meet and confer, so to speak, regarding any alleged deficiencies in a complaint. Doing so could avoid having to prepare for a hearing that will ultimately not happen.
The judge’s comments at the recent program follow comments from another judge at past events. With regard to trade secret claims, the judge suggested it might make for a better strategy to refrain from 12(b)(6) motions that attack the sufficiency of a complaint’s trade secret description. Instead, a party should consider whether to wait to attack the trade secret claim at summary judgment, when, if a motion is successful, the case will indeed be over.
These comments are definitely food for thought, and Rule12(b)(6) strategies definitely merit further discussion.
That is why, at this year’s Annual Meeting in Wilmington, the Commercial Section will be holding a breakout session on June 18 to specifically discuss Rule 12(b)(6) strategies. We are planning an engaging session with insight from an esteemed panel and robust discussion from attendees.
We hope to see you there!
iArroyo v. Scottie’s Prof’l Window Cleaning, Inc., 120 N.C. App. 154, 158, 461 S.E.2d 13, 16 (1995).
iiOates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985).
ivNew Friendship Used Clothing Collection, LLC v. Katz, 2017 NCBC 71 (N.C. Super. Ct. Aug. 18, 2017).
vAdmittedly, I had done this in a case before the Business Court, filing a formal motion and memorandum more than a year after serving the answer.
viErie Ins. Exch. v. Builders Mut. Ins. Co., 227 N.C. App. 238, 242, 742 S.E.2d 803,808 (2013).
viiFirst Fed. Bank v. Aldridge, 230 N.C. App. 187, 191, 749 S.E.2d 289 (2013).
iixBotanisol Holdings II, LLC v. Propheter, No. 21 CVS 102, 2021 WL 4844528, at *9 (N.C. Super. Oct. 18, 2021).
ixLoyd v. Griffin, No. 20 CVS 2394, 2021 WL 5865360, at *8 (N.C. Super. Dec. 10, 2021).
xiNorris v. Greymont Dev., LLC, No. 21 CVS 12659, 2022 WL 278278, at *8 (N.C. Super. Jan. 31, 2022).
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