2020-01-30 11:20:35
The Column
NCAJ publishes a quarterly Verdicts, Settlements and Dispositions column. We want to encourage all NCAJ members to share their successes. Through your stories, all members learn how to fight, how to persevere and how to win. NCAJ members become stronger as a group when we share our struggles and triumphs with fellow practitioners.
Civil practitioners: Please use the online form at ncaj.com/verdicts to submit your verdicts/settlements to be considered for publication.
Criminal practitioners: Please use the online form at ncaj.com/dispositions to submit your dispositions to be considered for publication.
If you prefer, you may also email your submissions directly to rjessup@hsfh.com. We are looking forward to hearing from you.
$8.3 Million Excessive Force Verdict
In September of 2019, Robert Zaytoun and Matthew Ballew of the Zaytoun Ballew & Taylor, PLLC law firm in Raleigh, and Ryan Oxendine and Jim Barnes of Oxendine, Barnes & Associates in Raleigh, obtained a $8.3 million jury verdict in an excessive force case, presided over by the Hon. Louise Flanagan, in Morgan v. Spivey, et al (E.D.N.C. No. 5:16-CV-365-FL). The case was litigated, from filing in July 2016 through verdict, by both law firms.
On July 5, 2013, Plaintiff was driving with a passenger southeast on Wimberly Road in Apex, toward a field owned by the Plaintiff’s father. At the same time and place, Plaintiff drove past Deputy Spivey of the Wake County Sheriff’s Department, who was in his patrol car in the opposite lane of travel. Deputy Spivey testified that he knew that Plaintiff previously had his driver’s license suspended. Plaintiff saw Deputy Spivey slow down and begin to use a side road to turn around, while Plaintiff proceeded around a curve in the road and turned into the north end of the field that his father owned. Deputy Spivey turned around and followed Plaintiff.
When Deputy Spivey pulled his patrol car up to Plaintiff’s location, he told Plaintiff to walk over and produce his license and registration. Plaintiff and Plaintiff’s passenger remained calm throughout the stop, in which Deputy Spivey issued Plaintiff citations for an expired registration, expired inspection, driving while license revoked, and for careless and reckless driving, and went over court dates with Plaintiff.
Deputies Legan and Miller were 20 miles away from the scene when they heard over their radio that Deputy Spivey was initiating a traffic stop with Plaintiff. Deputies Legan and Miller got into their separate patrol cars and drove through two-lane residential streets toward the field on Wimberly Road, sometimes exceeding 100 miles per hour, with numerous cars moving out of the way and pulling off the road as they drove past.
Deputies Legan and Miller parked their patrol cars along the side of the road next to the field. While Deputy Spivey was writing citations, he instructed Deputies Legan and Miller to search around Plaintiff’s vehicle to see if any contraband had been thrown out of the vehicle. Thereafter, Deputy Legan began a search of Plaintiff’s truck without a warrant and without the consent of either Plaintiff or his passenger, including a search of the truck’s cab, consoles, and glove box, which revealed no contraband, no evidence of any violation of law, and no weapons.
After receiving his traffic tickets and misdemeanor criminal citation, Plaintiff was told he was free to leave and was not under arrest. Plaintiff was upset he had received a citation for careless and reckless driving and told his passenger to wait outside while Plaintiff got into his truck and began driving along the dirt road on the field, away from Deputy Spivey’s car and toward the south end of the field. Plaintiff increased his speed and performed several “fishtails” and “doughnuts,” while remaining completely on his father’s field. The field was private property, and Plaintiff was committing no crimes by driving in such manner on a private field. Deputy Spivey performed a three-point turnaround and drove in the direction of Plaintiff’s truck at the south end of the field.
Plaintiff stopped his truck when he saw that Deputy Spivey had driven his patrol close to the area where he was performing doughnuts. After Plaintiff stopped his truck, the truck was in gear during the entire ensuing transaction with Deputy Spivey. Deputy Spivey, without issuing any orders and “within seconds of stopping his car instantly exited his vehicle in an aggressive manner, extended his ASP baton, and began approaching the driver side of Plaintiff’s truck.” Deputy Spivey “forcefully struck Plaintiff in the head with the baton.”
During this time, Deputies Legan and Miller had gotten into their patrol cars, drove down the road to the southern end of the field, stopped their patrol cars, exited, and ran toward the truck. Deputy Miller ran to the passenger window of the truck with his pistol loaded, cocked, and pointed at Plaintiff. Deputy Legan approached the vehicle from the driver’s side with his Taser drawn.
As Deputy Spivey pulled Plaintiff from the driver’s seat, Plaintiff’s foot came off the brake of the truck, and it began idling forward. Deputy Miller took aim and fired his revolver twice at close range, hitting Plaintiff both times, first in Plaintiff’s left leg and second through Plaintiff’s right hand. Plaintiff was able to open his driver door, and collapse on the ground, calling out, “I need EMS! I need an ambulance!” Deputy Miller turned his revolver to Plaintiff’s passenger and told him to “Get the f--- down.”
Plaintiff was taken into custody and transported to Duke University Medical Center for emergency treatment. Plaintiff had gunshot wounds and two large lumps on his head. Following his medical treatment at Duke, Plaintiff was then transferred to the Wake County Jail, Central Prison and Craven County Correctional Institute, where he was incarcerated for more than four months.
Plaintiff was charged with assault with a deadly weapon on a law enforcement officer; assault inflicting serious injury on a law enforcement officer; assault on a law enforcement officer; assault; felony habitual assault; and kidnapping a law enforcement officer. Plaintiff was acquitted of all charges.
Thereafter, Plaintiff filed suit against the individual deputies pursuant to §1983 for violations of his Fourth Amendment rights, in addition to bringing state-law claims for assault and battery, false imprisonment, malicious prosecution, and civil conspiracy. Plaintiff also made a claim on the sheriff’s bond.
At mediation, the defense offered the Plaintiff $25,000, which was rejected. An offer of judgment of $400,000 was made shortly before trial. The trial lasted 1.5 weeks. Jury selection took approximately 1.5 hours. The verdict sheet had more than 20 issues for the jury to work through. During jury deliberations, the defense increased their offer to $1.5 million. Plaintiff rejected such offer, and the jury came back in favor of the Plaintiff on all 20 issues and rejected all special interrogatories the defense submitted to support their qualified immunity defense. The total verdict was $8,325,000 with approximately $1.5 million constituting punitive damages. The Defendants chose not to appeal and have paid the verdict amount in full.
Sources: Court Records & NCAJ Listserv
$425,000 Medical Malpractice Verdict ($0 Pre-Trial Defense Offer)
In November of 2019, William Goldfarb of The Law Offices of William K. Goldfarb in Monroe, in association with Shel Robinson of Robinson Elliott & Smith in Charlotte, obtained a $425,000 verdict from a Burke County jury in a medical malpractice case, defended by Sara Lincoln and Heather Fuller of Lincoln Derr in Charlotte. The defense made no pre-trial offers.
In December of 2014, Plaintiff was seen at Carolina Ortho in Morganton for treatment of a thoracic herniated disc. While there, Plaintiff was given an epidural steroid injection. Immediately after receiving the shot, Plaintiff reported that her legs felt numb. Medical staff told Plaintiff that they believed she should be moved from the exam table to a wheelchair. While medical staff attempted to assist Plaintiff in getting into the wheelchair, Plaintiff fell to the floor. There were differing accounts as to whether she actually fell, how the fall occurred, and as to whether the medical providers bore any responsibility for it.
After the event, an EMG showed a peroneal nerve injury to Plaintiff’s left leg, while two other EMGs of the left leg were normal. Plaintiff was diagnosed with CRPS in the left leg and an osteochondral defect in her left ankle.
Plaintiff subsequently had unrelated neck surgery where she had a permanent DVT located in the left leg.
Plaintiff filed suit against Carolina Ortho and its employees, alleging that the fall caused the injuries to her left leg and ankle.
Plaintiff had more than 8,000 pages of medical records, including before and after the fall. The defense attempted to use Plaintiff’s pre-existing and post-event records to show that she was anxious and would tell medical providers things that were not true about her medical conditions and treatment from other medical providers. Unfortunately, there were many examples. The defense’s position was that Plaintiff had conversion disorder and that she was not injured in the fall. In addition, the defense argued that they did nothing wrong and her legs buckled a little, but she never fell to the ground.
The defense had eight retained liability and causation experts, while the Plaintiff only retained one expert. The defense argued that Plaintiff could not show a breach of the standard of care, and also contested whether the Plaintiff actually had CRPS, whether the osteochondral legion was from her alleged fall, and whether she actually had a peroneal nerve injury at all.
The trial lasted for approximately 2.5 weeks, and the defense never made any settlement offer before the jury rendered its verdict in favor of the Plaintiff.
Source: NCAJ Listserv
Appellate Victory for NIED and Child Loss of Consortium Claims
In September of 2019, Frank Jackson of F.B. Jackson & Associates Law Firm in Hendersonville obtained reversal of a trial court’s judgment on the pleadings with respect to parents’ negligent infliction of emotional distress (NIED) and loss of consortium claims arising from the unwitnessed death of their child, in Newman, et ux v. Stepp, et ux (N.C. C.O.A. No. 19-122).
Plaintiff mother left Plaintiffs’ child in the temporary care of the Defendants, at their residence, while she attended class for an ultrasound technician degree. Defendants operated an unlicensed childcare facility at their residence and regularly cared for children.
At the time of the incident, Plaintiffs’ daughter was playing with other children in Defendants’ kitchen, unsupervised. There was a loaded shotgun on the kitchen table. One of the children, who was under the age of 5, shot Plaintiffs’ daughter with the shotgun, at close range, killing her before the ambulance reached Asheville.
Plaintiff father heard about the shooting over a CB radio. He drove to the Defendants’ home and followed the ambulance to the hospital. He observed his daughter being removed from the ambulance at the hospital. Shortly after, Plaintiff mother arrived at the hospital, and she too saw her child’s lifeless body.
Plaintiffs filed suit against Defendants for NIED and loss of consortium. Thereafter, Defendants moved to dismiss Plaintiffs’ claims under Rule 12(c). Hon. Gregory Horne, while presiding in Henderson County Superior Court, granted Defendants’ Rule 12(c) motion.
The Court of Appeals reversed, finding that “[t]he existence of the close parent-child familial relationship, of which Defendants were well aware of, supports foreseeability [for negligent inflicting emotional distress],” and that “[the Court] reject[s] Defendants’ erroneous contention that Plaintiffs cannot support a NIED claim because they were not physically present to observe the actual shooting of [their daughter].”
The court emphasized and held that Plaintiffs’ loss of consortium claim should not be dismissed because it is derived from the NIED claim. The court likened a loss of consortium claim for injury to a child to injury to a spouse. The case is currently in the Supreme Court due to a dissent in the Court of Appeals.
Source: Court Records
Successful Negligent Entrustment Verdict
In September of 2019, Helen Baddour of Copeley Johnson & Groninger, PLLC in Durham obtained a successful jury verdict in a negligent entrustment case, presided over by the Hon. Orlando Hudson, in Durham County Superior Court.
Plaintiff was a pedestrian using a crosswalk when she was struck by a vehicle operated by the Defendant. Fortunately, Plaintiff only sustained soft tissue injuries (a deep bruise in her hip and pain in her right shoulder that required a cortisone shot) and she fully recovered within approximately six months. However, at the time of the collision, Defendant was not a licensed driver. Therefore, as a result of the collision, he was charged and convicted for driving with a revoked license and failure to yield the right-of-way.
Prior to the subject collision, Defendant had been convicted of multiple DWIs, numerous driving with a revoked license charges, and one misdemeanor death by motor vehicle.
At the time of the wreck, Defendant lived with his mother, and she was fully aware of his driving history and that he did not have a driver’s license. Nevertheless, on the day of the collision, Defendant’s mother allowed him to operate her vehicle, which he was driving at the time of the collision. It is of note that Defendant had not been drinking prior to the subject crash.
Plaintiff sued Defendant for his negligence in causing her injuries, and she also sued Defendant’s mother for negligent entrustment.
At trial, medical bills were not introduced into evidence. The highest pre-trial offer by the defense was $11,000. In closing arguments, the defense requested that the jury award Plaintiff $6,500. The jury returned a verdict of $30,000.
Source: NCAJ Listserv
$750,000 Alienation of Affection Verdict
In October of 2019, Cynthia Mills of The Law Office of Cynthia A. Mills in Greenville obtained a $750,000 verdict from a Pitt County Superior Court Judge in an alienation of affection and criminal conversation case.
Plaintiff was happily married to his wife for 12 years. Plaintiff’s wife unexpectedly told him that she wanted to separate. Plaintiff was suspicious and believed his wife may potentially have been unfaithful. Therefore, Plaintiff hired a private investigator who discovered that she was having an affair with a coworker. This coworker had attended dinners and social events at the home of the Plaintiff/husband and his wife under the guise of having only a professional relationship with Plaintiff’s wife. Ultimately, this led to Plaintiff and his wife divorcing.
Mills has tried numerous alienation of affection and criminal conversation cases. She reports her highest verdict was in 2010 (which was $5.9 million) and her lowest was $60,000 in a Beaufort County case.
North Carolina remains one of six states that continues to recognize the heart balm torts, along with Hawaii, Mississippi, New Mexico, South Dakota, and Utah.
Source: CNN & Local News
$900,000 Tractor-Trailer Settlement
In the summer of 2019, Hunter Gillespie and Herb Auger of Auger & Auger in Charlotte obtained a $900,000 settlement for a man rear-ended by a tractor-trailer at approximately 60 mph on Interstate 85 in Kings Mountain.
The Plaintiff’s injuries included a traumatic aortic aneurysm, closed facial fractures, rib fractures, PTSD and short-term memory issues. Plaintiff underwent approximately four weeks of intensive physical therapy, and thereafter, additional physical therapy at a Veterans Administration hospital. Plaintiff also required emergency surgery for his aneurysm. The defense contended that PTSD and short-term memory issues were preexisting conditions, caused by the Plaintiff’s age, while Plaintiff asserted that they were caused by the trauma of the crash and the loss of blood related to the aneurysm and post-operative cardiac arrest. Special damages were $157,385.
The case was mediated by Rene Ellis of Beason & Ellis in Durham. Plaintiff utilized Ryan McMahan of Accident Research Specialists in Cary as his liability expert. The identities of the Defendants and their legal counsel are protected by a confidentiality agreement.
Source: Online Resources & Lawyers Weekly
$1 Million Tractor-Trailer Settlement
In August 2019, Arlene Auger of Auger & Auger in Charlotte obtained a $1 million settlement for a woman who was a passenger in a vehicle rear-ended by a tractor-trailer on Interstate 77.
The tractor-trailer was going 60 mph before the crash. An accident reconstructionist found no evidence that the driver of the 18-wheeler had applied his brakes, and the state highway patrol report showed no skid marks on the road.
The Plaintiff’s injuries included fractures of her C-1, C-6, and C-7 vertebrae as well as facial bleeding and swelling and bruising of her forehead. Plaintiff underwent neck surgery and repairs to cuts on her face and forehead. She spent six days in the hospital. A neuropsychologist diagnosed her with mild depression due to a brain injury and kept her under care for a year.
Special damages were $68,625 in past medical bills. The insurance company did not dispute liability. The case was mediated by Scott Hart in New Bern. Plaintiff used P. Jeffrey Ewert of Charlotte, a neuropsychologist, and Ryan McMahan of Accident Research Specialists, an accident reconstructionist, in Cary.
Source: Online Resources & Lawyers Weekly
$5 Million Jury Verdict for Noneconomic Damages
In May of 2019, John Taylor, Robert Zaytoun and Matthew Ballew of the Zaytoun Ballew & Taylor, PLLC law firm in Raleigh obtained a $5 million jury verdict for a 35-year-old man injured when a ladder fell from a truck into his path on Interstate 40, causing him to crash his car.
Plaintiff’s main injuries alleged were mild TBI and right eye blindness, both permanent conditions. Plaintiff’s car sustained minimal visible damage.
This was a “peculiar susceptibility” case due to the fact that Plaintiff had thinner skull bones due to a preexisting condition caused by injuries sustained in a car wreck when he was 11. His medical treatment involved endoscopic brain surgery to repair an encephalocele, as well as treatment for mild TBI cognitive difficulties by a brain injury specialist. Plaintiff appears to have normal motor skills at first glance, but his blindness and brain injury become apparent upon close and continued interaction.
Defense admitted negligence Friday before the trial. Plaintiff dismissed all economic damages claims the Monday of trial and tried the case with no medical bills or lost wages, seeking only noneconomic damages for harms such as pain, suffering and permanent injuries.
After 1.5 weeks of trial, the jury deliberated for 32 minutes and returned a verdict for $5 million.
The highest offer pre-trial was a $200,000 offer of judgment. Defense increased their offer to $500,000 after the first day of jury selection. There were no other offers.
Plaintiff retained Steve Farlow, accident reconstruction expert, to reconstruct the crash showing there was absolutely no contributory negligence by Plaintiff.
Judge Gale Adams presided over the trial in Cumberland County. The Plaintiff’s car wreck occurred in Raleigh in June of 2017. Plaintiff filed the case in Cumberland County, where the corporate defendant did most of its business.
David Coats from Bailey & Dixon was lead defense counsel and handled 90% of the trial. Chad Dunn from the same firm was co-counsel. The insurance carrier was Nationwide.
Source: Attorney report on NCAJ Listserv
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