Top Verdicts & Settlements

An “empty chair” alienation of affection case that resulted in a $30 million award tops the list of North Carolina Lawyers Weekly’s annual roundup of the year’s top verdicts and settlements. The 2011 list comprises the 25 of $1.5 million or more that were reported to Lawyers Weekly during the year.

Correction: The list of North Carolina’s top verdicts & settlements of 2011 published in the Feb. 6, 2012 edition of Lawyers Weekly inadvertently left out a settlement. Attorney Michael Davenport of Wilmington, along with H. Scott Overholt and Lynn Wood Beck, won a $4.5 million settlement in a Wake County eminent domain case. That settlement would have placed 12^th on the list of 25 top verdicts & settlements. The online version of the list below has been adjusted accordingly.

– 1 –

‘Empty chair’ heart balm case nets $30M award

A Wake County judge awarded the jilted spouse of Donald Puryear $30.162 million in her suit against the woman she accused of stealing his affections.

The wealthy owner of a Raleigh trucking company later married the woman, Betty Devin. The “empty chair” case was tried before Superior Court Judge Carl Fox, who decided on the award to ex-wife Carol Puryear.

Empty-chair cases are those where the defendant has been properly served with notice of the lawsuit and applicable hearing dates, but fails to appear at trial. Two different attorneys had represented Devin at various times during the lawsuit, and one had shown up on the trial date to argue an issue, but left before arguing damages because the lawyer had not been retained to represent Devin on that issue.

Type of action: Alienation of affections and criminal conversation

Injuries alleged: Genuine love and affection alienated and destroyed; loss of emotional support; injury to emotional health and welfare; private and public humiliation; destruction of marital relationship and emotional anguish and pain

Case name: Carol Monsour Puryear v. Betty Carlton Devin

Case number: 09 CVS 0825

Court: Wake County Superior Court

Judge: Carl Fox

Verdict or settlement: Bench verdict

Date: March 14, 2011

Amount: $30.162 million total – $10.162 million in compensatory damages, plus $20 million in punitive damages

Plaintiff’s attorney: Stephanie Jenkins of Gailor Wallis Hunt (Raleigh)

– 2 –

Speeding trucker’s accident prompts $18M verdict

In October 2007, Thomas Simon, Cheryle Simon, George Wiggins and Mary Elizabeth Wiggins were returning home after a day of shopping in Winston-Salem. At the same time, and coming from the opposite direction, Curtis Mondy was hauling limestone. Mondy had an extensive criminal record and history of traffic violations, and his motor carrier authority had been revoked by the Federal Motor Carrier Safety Administration.

On a steep downhill stretch of the highway, Mondy was observed driving his tractor-trailer at 60 mph, or double the speed limit. At the very last curve on this steep hill and less than half a mile past the last runaway ramp, Mondy’s tractor-trailer turned over and slid across the median directly in the path of and slamming into the Chevy Avalanche occupied by the Simon and the Wiggins couples. All four died as a result of the crash.

After the wreck, Mondy pleaded guilty to four counts of involuntary manslaughter. In addition to the negligent driving of Mondy, plaintiffs alleged that defendant Golden Logistic Services, Inc., had negligently hired and selected Mondy.

All four cases were consolidated for trial and, immediately prior to the trial, the defendants stipulated to liability and a bench trial was conducted on compensatory damages only.

Type of action: Wrongful death

Injuries alleged: Wrongful deaths of four friends and in-laws arising out of tractor-trailer collision

Case name: The Estates of Thomas Cameron Simon, Cheryle Cotter Simon, George Wesley Wiggins, and Mary Elizabeth Wiggins v. Curtis Isaac Mondy, CIM Enterprises, Inc. and Golden Logistic Services, Inc.

Case numbers: 09 CVS 93, 09 CVS 92, 09 CVS 95 and 09 CVS 94

Court: Wilkes County Superior Court

Judge: Richard L. Doughton

Verdict or settlement: Verdict – non-jury trial

Amount: $18 million ($4.5 million for each estate)

Insurer: Aequicap and Transportation Insurors

Were liability and/or damages contested? Yes

Was the opposing party represented by legal counsel? Yes

Has the plaintiff been successful in actually collecting the judgment or settlement? Yes

Plaintiff’s attorneys: Thompson Comerford Jr., Kevin J. Williams and John Kenneth Moser, all of Comerford & Britt (Winston-Salem); and Stuart Teeter of The Teeter Law Firm (Winston-Salem)

– 3 –

DOT pays big for delay in road project

In 1991, the state Department of Transportation filed a map with the Cumberland County register of deeds protecting 700 acres of land owned by William Sanders in the I-295 corridor from development. Ten years passed, but no road construction ensued.

“When Mr. Sanders came to see us in 2001, he was in his late 60s and on a fixed income. He had no family and was deep in debt from paying the taxes on the property,” Raleigh attorney George Autry said. “The project was supposed to move forward with the right of way, and it just kept getting delayed and delayed. “

By October 2008, DOT was ready to begin work and appraised Sanders’ property at $6.5 million. But before an offer was finalized, Lehmann Brothers collapsed, the national economy teetered, and DOT, in November 2008, shut down all acquisitions.

In August 2010, DOT was again ready to start construction and a condemnation of Sanders’ property was filed. “We were prepared to ask for $29 million at trial,” Autry said. “This was 700 vacant acres within the Fayetteville city limits, with water and sewer, immediately adjacent to Fort Bragg, with 60,000 people driving by it every day. It was incredibly valuable property.”

The parties settled in November for $15.8 million.

Type of action: Eminent domain/land condemnation

Injuries Alleged: Taking of approximately 101 acres of vacant land in Fayetteville, for the construction of the Fayetteville Outer Loop, with damage to the remaining 550 acres.

Name of case: NCDOT v. William T. Sanders

Court: Cumberland County Civil Superior Court

Case No.: 10 CVS 6982

Tried Before: Mediation

Name of judge, arbitrator or mediator: Bob Beason

Verdict or Settlement: Settlement

Amount: $15,800,000, plus development concessions

Date of verdict or settlement: Nov. 1, 2011

Attorney for plaintiff: Lauren Clemmons, NCDOJ, Raleigh

Attorneys for defendant: George B. Autry, Jr., and Stephanie Hutchins Autry

– 4 –

Hospital horror leads to $15.5 million settlement

A young woman walked into a hospital emergency room seeking help for a relatively minor ailment and ended up brain dead after suffering through a series of shocking oversights at the hands of doctors, nurses and pharmacists.

In 2006, a 21-year-old client went to the hospital complaining of nausea after taking too much Tylenol during her menstrual cycle. She was hooked up to an IV that delivered a drug called acetylcysteine, the antidote for Tylenol overdose.

The ER doctor had never given the IV form of acetylcysteine to anyone before, and the ER’s pharmacy had never dispensed the drug. The pharmacist’s prescription said that the drug, which is given in three stages, should run “times” four hours during the second stage and “times” 16 hours during the final stage. But the prescription should have said that a single dose of the drug was to be given “over” a certain time period. A series of blunders involving doctors and nurses alike followed.

The hospital’s mistakes were so profound that it eventually agreed to settle the woman’s medical negligence case for $15.5 million – one of the largest verdicts of its kind in North Carolina history.

Type of action: Medical negligence resulting in permanent injury and disability

Injuries alleged: Persistent vegetative state

Case name: Withheld pursuant to confidential settlement agreement

Court: Withheld pursuant to confidential settlement agreement

Case number: Withheld pursuant to confidential settlement agreement

Verdict or Settlement: Settlement

Date: February 2011

Amount: $15,500,000.00

Plaintiffs’ attorneys: Alan W. Duncan, Allison O. Van Laningham and Steven M. Russell, Jr. of Smith Moore Leatherwood LLP (Greensboro)

Defendants’ attorneys: Withheld pursuant to confidential settlement agreement

– 5 –

$15M verdict against killer means closure for family

After Freddie Hammer pleaded guilty to killing Jimmy Lee Blevins, his part-time employee who hadn’t been paid for some work and subsequently threatened to “take out some papers” on Hammer, Blevins’ family filed a wrongful-death suit against the killer.

By the time the suit was commenced, Hammer was already serving five consecutive life sentences for three first-degree murders, kidnapping and the use of a deadly weapon in the commission of a felony.

“In the criminal case, the Blevins family never really had a say in the proceedings. In the wrongful-death case, David and Joe Blevins – Jimmy’s father and brother – got to take the stand and tell the judge what this did to the Blevins family,” attorney David Jolly said.

When the Blevins family left the Ashe County Courthouse after the civil judgment of $14.96 million judgment was entered, “Their heads were held a little higher. They felt like the system had worked,” Jolly said.

Type of action: Wrongful death

Injuries alleged: Wrongful death

Case name: David Blevins, Administrator of the Estate of Jimmy Lee Blevins v. Frederick P. Hammer

Case number: 09 CVS 398

Court: Ashe County Superior Court

Judge: A. Moses Massey

Verdict or settlement: Judgment entered by judge

Date: March 11, 2011

Amount: $14.96 million total – $3.74 million in compensatory damages, plus $11.22 million in punitive damages

Has the plaintiff been successful in actually collecting the judgment? The defendant claims to be working on a book or movie about his crimes, which include killing a Philadelphia police officer in 1978. The judgment ensures that proceeds would go to the estate of Jimmy Blevins, and not the defendant.

Plaintiffs’ attorney: David Jolly (Crumpler); Clifford Britt of Comerford & Britt (Winston-Salem)

– 6 –

Family devastated by crash collects $10.75M

In April 2010, the driver of a commercial box truck barreled into the rear end of a van carrying a family of five stopped at a traffic light. The driver had not stopped or slowed down for the light and did not brake before impact.

The truck rode over the van’s rear axle and into the rear passenger compartment, crushing and killing both the 2- and 14-year-old sons.

The 16-year-old son, seated in the middle back seat, suffered skull fractures, brain injuries, spinal fractures, hip fractures and internal bleeding. Though he has largely recovered from those injuries, he has had personality changes as a result of his brain injury.

The family was able to settle their claim through pre-suit mediation, for $10.75 million.

Type of action: Wrongful death of two children and brain injury to a third as a result of a truck accident

Injuries alleged: Deaths of a 2-year-old and a 14-year-old, and traumatic head injury to 16-year-old boy.

Case name: Confidential

Case number: Confidential

Court: Confidential

Verdict or settlement: Settlement

Date: December 2011

Amount: $10.75 million

Plaintiff’s attorneys: David F. Kirby, Kirby & Holt, LLP (Raleigh)

Defendant’s attorneys: Don W. Thompson, Kenneth Bruce, Bruce & Thompson, LLC (Summerville, Ga.)

– 7 –

Water authority tries a do-over on land grab

There are no refunds in condemnation actions. That’s the hard lesson the Onslow County Water and Sewer Authority learned when it tried to back out of a deal for some 350 acres needed to expand a wastewater treatment facility.

In April 2008, the authority condemned four tracts of land just outside of Richlands, owned by the Rogers and Boggs families. The authority appraised the tracts as farmland, and deposited $1.9 million as just compensation. Shortly after, the owners discovered that two of the tracts had significant limestone deposits underneath, and brought in a geologist to take samples.

Mineral appraisers estimated that, based on a royalty approach, the property was worth between $12 million and $14 million. The authority filed a motion seeking a dismissal and the return of the $1.9 million deposit, but Onslow County Judge Phyllis M. Gorham denied the motion, telling the authority that it could not force the property back on the owners.

The parties later settled at $9,415,000.

Type of action: Eminent domain/land condemnation

Injuries Alleged: Taking of four tracts of vacant land in Onslow County for Regional Wastewater Treatment Facility

Name of case: ONWASA v. Hubert N. Rogers, Jr., et al, and ONWASA v. Sue T. Boggs, et al.

Court: Onslow County Superior Court

Case No.: 08 CVS 1391 and 08 CVS 1445 (Consolidated)

Tried Before: Judge

Name of judge: Phyllis M. Gorham

Verdict or Settlement: Settlement

Amount: $9,415,000

Date of verdict or settlement: Nov. 28, 2011

Attorney for plaintiff: David Nash, Wilmington

Attorneys for defendant: George B. Autry, Jr., Stephanie H. Autry, Brady W. Wells, and Dan M. Hartzog, Jr., Cranfill, Sumner & Hartzog, Raleigh

– 8 –

Parasailing deaths result in $9M verdict

A parasailing excursion that left two women dead resulted in a judgment of $9,065,000 for the women’s estates and for a family of vacationers who survived the deadly afternoon trip in 2009.

Best friends Cynthia Woodcock of Kernersville and Lorrie Shoup of Colorado were vacationing near Ocean Isle when they took a parasailing tour aboard the “Tied High.” Both women died of blunt force trauma after their parachute broke free of the boat during rough weather. Gusting winds propelled the parachute, dragging the women across the water, leaving them battered by the ocean, and then the boat, said Wilmington attorney Joel Rhine, who represented the women’s estates. Ten tourists aboard the “Tied High,” including four children, witnessed the women’s deaths.

Rhine said the crew of the “Tied High” misjudged weather conditions, failed to adhere to wind speed regulations and failed to obey rules regarding the training and supervision of parasailers.

Mark McCulloh, a parasailing expert, testified that he had “never seen or heard of a worse set of decisions, errors and omissions than those undertaken by the defendants in this case.”

Type of action: Admiralty/wrongful death/personal injury

Injuries alleged: Two deaths and severe emotional distress

Case name: Woodcock, et al. v. Ocean Isle Beach Water Sports, Inc., et al.

Case number: 10 CVS 4476

Court: Forsyth County Superior Court

Judge: Richard W. Stone

Date: Nov. 14, 2011

Amount: $9,065,000

Insurer: Marine Specialty Management Co. LLC and Marine Underwriters Ltd.

Plaintiff’s attorneys: Joel R. Rhine, Rhine Law Firm, Wilmington; Dan Brawley and Trip Coyne, Williams Mullen, Wilmington; Mark L. Tripp, Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, Iowa

Defendant’s attorneys: Rountree Losee & Baldwin, Wilmington; Jason Harris, Jacksonville. Defendants’ attorneys withdrew before trial due to irreconcilable differences with defendants’ insurers.

– 9 –

Dispute over plane title leads to $8.7M verdict

A jury in Buncombe County awarded Venezuelan native Wilson Aponte and his company $8.7 million after finding that Dove Air Inc. and its president breached a contract with Aponte for the purchase of a Cessna jet.

The jury awarded Aponte $2,922,353. The damages were trebled because the jury found that Aponte was damaged by the fraud of Dove Air and Joseph W. Duncan, the company’s owner and president.

The 2009 deal, negotiated by an intermediary, was for Aponte to pay Dove Air $2.2 million in exchange for a Cessna Citation III. Aponte paid in full, but Dove Air hedged on giving over the plane. When it finally did, the plane came with an unexpected hitch: a $2.3 million lien in favor of Cessna Finance Corporation. That wasn’t part of the deal. The contract provided that the plane would be transferred free of any liens or charges.

After Aponte took possession of the plane, Dove Air failed to transfer its title, despite Aponte’s repeated requests. Aponte finally returned the plane, rescinded the contract and demanded his money back. In August 2010, he brought suit against Dove Air and Duncan in Buncombe County.

The jury found in Aponte’s favor on claims of conversion, fraud, breach of contract and negligent misrepresentation.

Type of action: Contract, fraud, conversion, unfair and deceptive trade practices

Injuries alleged: Financial damages

Case name: Aponte v. Dove Air, Inc.

Case number: 10 CVS 04222

Court: Buncombe County Superior Court

Judge: Marvin J. Pope

Verdict or settlement: Jury verdict

Date: Sept. 22; Judgment entered Oct. 3

Amount: $8,767,059

Special damages: $2,922,353 in compensatory damages trebled

Demand: $2.2 million

Plaintiff’s attorney: Dale A. Curriden and W. James Johnson, of the Van Winkle Law Firm (Asheville)

Defendant’s attorneys: Harry Haskins (Sarasota, Fla.) and Nick Roknich, (Waynesville)

– 10 –

Colon perforation leads to $7M verdict

Victoria Lynn Harmon was 54 in June 2007 when she underwent a vaginal hysterectomy performed by the defendant, Dr. Susan Lovejoy Roque. She was discharged the morning after the procedure with an abnormally high white blood cell count, which should have been taken as evidence of an infection.

After arriving home, Harmon experienced severe abdominal pain, fever and chills. She returned to the hospital. Ultimately doctors determined that Harmon’s sigmoid colon had been cut during the hysterectomy. By the time the perforation was discovered, however, it was too late for Harmon.

She survived for 108 days in the intensive care unit, but the bacteria that had spilled into her sterile peritoneal cavity for 72 hours caused infection, sepsis, peritonitis and multi-organ failure. She ultimately succumbed to her injury.

Type of action: Wrongful death/medical negligence

Injuries alleged: Wrongful death

Case name: The Estate of Harmon v. Lovejoy, et al.

Case number: 09 CVS 1507

Court: Wilkes County Superior Court

Judge: Anderson D. Cromer

Verdict or settlement: Jury verdict

Date: May 24, 2011

Amount: $7 million

Special damages: $1.2 medical expenses and lost income

Insurer: The Doctor’s Company

Plaintiff’s attorney: W. Thompson Comerford Jr. and John Kenneth Moser of Comerford & Britt, LLP (Winston-Salem)

Defendant’s attorneys: John Minier and Susan Fountain of Yates, McLamb, & Weyher, L.L.P., (Raleigh)

– 11 –

Fraternity hazing death produces $4.6M settlement

Late one night in 2009, Theta Chi fraternity members brought Harrison Kowiak and other pledges to a large field and told them to retrieve a particular rock on the other side. As they made their way across the field, the pledges – dressed in light clothing – were tackled by darkly-dressed members who’d been hiding in the field.

Kowiak, a 19-year-old sophomore and member of the golf team at Lenoir-Rhyne University, weighed as much as 100 pounds less than some of the football players who repeatedly knocked him to the ground. Just before he reached the rock, Kowiak collapsed

Members of the fraternity drove him to Frye Regional Medical Center in Hickory. He was then flown to Carolinas Medical Center in Charlotte, where he died the following day from severe head trauma.

The fraternity and some of its members involved in the hazing paid $4.655 million to settle the resulting wrongful death action. The incident occurred away from the college campus, and college employees were not aware of the fraternity’s plans for that evening.

Type of action: Death of 19-year-old college student during a fraternity hazing activity

Injuries alleged: Wrongful death caused by extensive head trauma

Case name: Kowiak v. Theta Chi Fraternity, et al.

Case number: 09 CVS 5085

Court: Durham County

Verdict or settlement: Settlement

Date: October 2011

Amount: $4.655 million

Plaintiff’s attorneys: David F. Kirby, William B. Bystrynski, Kirby & Holt, LLP (Raleigh)

Defendant’s attorneys: Justin Leto, The Leto Law Firm (Tampa, Fla.)

-12-

DOT forced to take whole parcel, pays $4.5M

Seventeen years after the state Department of Transportation first identified her property as in the path of Raleigh’s 540 Outer Loop extension, Blanche Morris finally got her just compensation.

Morris, now almost 90, lived in the same farmhouse on Jenks Road in Apex for more than 60 years and moved out last year, after the Turnpike Authority filed its condemnation action and deposited $1,216,500.  At that time, the authority took only a 27-acre parcel that fronted Jenks Road and through which the roadway passed directly.

But the Morris family had used both that parcel, and a 45-acre parcel that fronted Green Level Church Road, as an operating farm with grazing and timber lands for years.

Although the two parcels connected at only one point, the family asked the court to join the 45-acre parcel in the condemnation.  “We argued that the elements of consolidation — unity of ownership, unity of use and physical unity — had been met, and that the 45-acre parcel had been damaged as well,” said Michael Davenport, an attorney for the family.

The court agreed, thus expanding the property at issue from 27 to 72 acres. After two days of mediation, the parties settled at $4.5 million.

Type of Action: Eminent domain

Injuries Alleged: Taking of a 10.5 acre roadway corridor through the middle of a 72.5 acre parcel of undeveloped land in Wake County

Name of case: NC DOT TA v. Morris

Court: Wake County Superior Court

Case No.: 10 CVS 003502

Tried Before: Mediation

Verdict or Settlement: Settlement

Amount: $4,500,000

Date of verdict or settlement: Aug. 8, 2011

Attorneys for plaintiff: Jason T. Campbell, Hilda Burnett-Baker, Phyllis Turner, assistant NC attorneys general

Attorneys for defendant: Michael S. Davenport, H. Scott Overholt, Lynn Wood Beck

– 13 –

Child’s birth injuries spur $4.45 million settlement

A pair of Raleigh attorneys negotiated a $4.45 million settlement in a medical-malpractice case that left a baby with severe physical limitations.

John A. Jones and Katherine N. Bricio of Martin & Jones represented the plaintiff in the case, which settled in the fall of 2011. The case hinged on a nurse’s failure to adjust an electronic fetal heart rate monitor. The monitor initially indicated that the unborn baby’s heart rate was healthy. But the machine stopped continuously tracing the heart rate about two hours before delivery.

The error went unnoticed until a shift change, when another nurse realized that the baby was in trouble. Her heart rate had dropped to 40 beats per minute, while it should have been around 140 beats.

The mother underwent an emergency C-section, but her baby was born with brain injuries as a result of oxygen deprivation and was later diagnosed with a form of cerebral palsy. While her mental abilities are normal, she cannot walk or talk and has no bowel or bladder functions.

Type of action: Medical malpractice

Injuries alleged: Birth injury

Case name: Confidential

Court: Confidential

Verdict or settlement: Settlement

Date: Fall 2011

Amount: $4.45 million

Special damages: $210,000 for medical costs since delivery

Insurance carrier: Confidential

Plaintiff’s attorney: John A. Jones and Katherine Bricio (Raleigh)

Defendant’s attorneys: Confidential

– 14 –

Family of car crash victim collects $4M

As Gerald Reid, a 43-year-old software developer and father of two, drove to his job at Becton Dickinson, he slowed down with other traffic backed-up from an accident ahead. The driver of a First Tee Transport tractor-trailer behind him did not.

The truck rear-ended Reid and rode up on the back of his car, trapping Reid in the car for 25 minutes. He was flown to Duke University Medical Center with an acute subdural hematoma and a spinal fracture, where he remained in intensive care for four days before his death.

Reid’s wife and two children – ages 7 and 5 – were able to reach a settlement of $4 million through mediation.

Type of action: Wrongful death of 43-year-old man in tractor-trailer accident

Injuries alleged: Wrongful death.

Case name: In the Matter of the Estate of Gerald Thomas Reid, Jr.

Case number: 10-E-803

Court: Wake County

Verdict or settlement: Settlement

Date: March 2011

Amount: $4.0 million

Plaintiff’s attorneys: David F. Kirby, William B. Bystrynski, Kirby & Holt, LLP (Raleigh)

Defendant’s attorneys: David N. Allen, Parker Poe (Charlotte)

– 15 –

Gas-card creator wins $4M for defamation

Steven Verona launched Philadelphia-based MyGallons in June 2008 to much fanfare, but then just as quickly had to pull back. A day after the launch of the pre-paid gas program, its payment processing network, U.S. Bank Voyager Fleet Systems Inc., disavowed any relationship with MyGallons, sparking internet, television and print reports questioning the merits of the MyGallons program and depicting Verona as a likely shyster.

Unable to secure an alternative processing network, MyGallons was forced to refund money to the estimated 6,000 members who’d already signed up for the program, and lost thousands of potential new members.

But the company and its founder sued, and a jury in a North Carolina federal court last awarded MyGallons $4 million in damages on its defamation claims against U. S. Bancorp and Voyager.

“Steve Verona personally, and MyGallons as a company, went in 24 hours from being sort of a media darling to being a media target,” said their attorney, Sam McGee of Charlotte’s Jackson & McGee. “One day he’s on ‘Good Morning America’ announcing the business, and there’s all this press coverage all over the place about what a great opportunity this is for American consumers to save money at the gas pump,” McGee said. “And then 24 hours later, after U.S. Bank denied any affiliation with him, he’s being called a scam and a fraud all over the internet, on TV and in print, too.”

After a two-week trial before U.S. District Judge W. Earl Britt, the jury found against Verona and MyGallons on the breach of contract claim but in their favor on the defamation claim.

Type of action: Defamation, contract

Injuries: Lost profits, damage to reputation, business, etc.

Name of case: MyGallons, LLC, et al. v. U.S. Bancorp and U.S. Bank Voyager Fleet Systems Inc.

Court: Eastern District of North Carolina

Case #: No: 7:09-CV-57-BR

Judge: W. Earl Britt

Verdict amount: $4.0 Million

Verdict date: October 18, 2011

Plaintiffs’ attorneys: Gary W. Jackson, Sam McGee, Jackson & McGee, Charlotte, NC. Sherrie R. Savett, Douglas M. Risen, Russell D. Paul, Jacob Polakoff, Berger & Montague, Philadelphia, PA

Defendants’ attorneys: Johnny M. Loper, Womble, Carlyle, Sandridge & Rice, Raleigh, NC. Christopher R. Morris, Bassford Remele, A Professional Association, Minneapolis, MN

– 16 –

Doctor, nurse late to recognize fetal distress

A young couple’s long-awaited trip to the hospital for the birth of their first child became a nightmare as nurses and the on-call doctor ignored signs of increasing fetal distress.

The husband and wife arrived at the hospital shortly before midnight. The wife, 35 weeks pregnant, had been complaining of headaches and blurred vision and her blood pressure was high. When she got to the hospital, she had abdominal tightening that did not relax and decreased fetal movement. A urine test showed elevated protein levels.

Nurses at the hospital monitored her condition, noting that the fetal heart rate was dropping, and updated the doctor on call, who was at home.

Though the wife began vomiting and shaking uncontrollably, and complained that she could not feel the baby, the doctor did not get to the hospital until 5:30 in the morning. He then examined the wife, with inconclusive results.

After the 7 a.m. shift change, a new nurse looked at the baby’s stats and called another doctor, who quickly came in from home and delivered the baby by cesarean section. The baby suffered a severe brain injury that left him with significant cognitive and motor deficits and partial hearing loss.

Plaintiffs’ experts testified that the on-call doctor was negligent for failing to perform a cesarean section earlier and that the nurse was negligent for failing to keep the doctor adequately informed of the patient’s condition.

The case settled for $3.75 million.

Type of action: Medical negligence/birth injury

Injuries alleged: Severe brain injury and cerebral palsy, resulting in significant cognitive and motor deficits and partial hearing loss

Case name: Confidential

Case number: Confidential

Court: Confidential

Verdict or settlement: Settlement

Date: September 2011

Amount: $3.75 million (present value)

Plaintiff’s attorneys: C. Mark Holt, Laurie G. Armstrong, David L. Sherlin, Kirby & Holt, LLP (Raleigh); Steve R. Warren, Long, Parker, Warren, Anderson & Payne, P.A. (Asheville)

Defendant’s attorneys: Confidential

– 17 –

Fertility clinic makes $3.3M mistake

An arbitration panel awarded more than $3 million to a married couple after a fertility clinic helped them conceive without warning the mother that she carried a deadly ailment which could be passed on to her child.

Reproductive Endocrinology Associates of Charlotte mishandled the results of a medical screening test that showed Sally Ware was a carrier of cystic fibrosis, and her daughter ended up inheriting the disease, according to Ware’s attorneys, William H. Elam and David S. Rudolf of Charlotte.

Ware and her husband, Christopher Ware, went to the clinic in November 2005 seeking in-vitro fertilization treatment from Dr. Daniel B. Whitesides. He had Sally Ware take several pre-treatment screening tests, but a nurse at the clinic incorrectly entered her positive cystic fibrosis result as being normal.

Whitesides did not catch the error and went ahead with the treatment. After Ware became pregnant, Whitesides referred her to an obstetrician/gynecologist, who had her undergo another round of screening tests. This time the cystic fibrosis result did not go unnoticed. Chris Ware was also tested, and discovered that he too carried the disease.

Before they could go through with the in-vitro fertilization treatment, the Wares had to sign an arbitration agreement with the clinic. They did not contest the agreement when they sued, partly because it contained a clause that required the losing party to pick up the winner’s legal tab.

Type of action: Medical malpractice

Injuries alleged: Child born with cystic fibrosis

Case name: Ware v. Whitesides

Case number: 09-CVS-19191

Court: Arbitration in Mecklenburg County

Judge: Three-member arbitration panel

Verdict or settlement: Arbitration award

Date: April 11; Judicial confirmation Oct. 24, 2011

Amount: $3.3 million

Special damages: $1 million in attorneys’ fees and costs

Highest offer: $500,000

Plaintiff’s attorney: William H. Elam, William R. Elam and David S. Rudolf (Charlotte)

Defendant’s attorneys: James P. Cooney III (Charlotte); Norman Klick (Greensboro); and Samuel H. Poole Jr. (Charlotte)

– 18 –

Wilmington highway nets

$3.2M for landowners

The Department of Transportation took 23 acres of the Sellerses’ family farm, which was located on U.S. 17 near Leland, for the construction of the Wilmington Bypass.

As part of the project, an elevated, controlled-access ramp would be built through the center of the Sellerses’ property, leaving remainders on either side with no access to U.S. 17.

The parties disagreed about the extent of wetlands and floodplain on the property and how those areas would have restricted residential development of the property before the taking. They also differed in their views of the extent of damage to the remaining acreage.

The department and the Sellers each called two appraisers to testify to the amount of just compensation owed, and the jury returned a verdict in the exact amount to which one of the Sellerses’ appraisers testified.

Type of action: Land condemnation/eminent domain

Injuries alleged: Taking of 23 acres of a 61-acre tract in Brunswick County, with damage to remainders.

Case name: Department of Transportation v. Marilyn and Don Sellers

Case number: 10 CVS 213

Court: Brunswick County Superior Court

Judge: James F. Ammons Jr.

Verdict or settlement: Verdict

Date: March 3, 2011

Amount: $3,217,284 (verdict plus interest)

Landowner’s attorneys: George B. Autry Jr. and Stephanie Hutchins Autry, both of Cranfill Sumner & Hartzog (Raleigh)

DOT’s attorneys: Martin McCracken, John Oates and Alex Hightower, all of the N.C. Department of Justice (Raleigh)

– 19 –

HOA wins $2.4M verdict in road dispute

A western North Carolina homeowners association was awarded $2.4 million in compensatory damages in a dispute over defective roads – a verdict that may be the largest ever in Swain County, an attorney associated with the case said.

The Alarka Creek Properties Homeowners Association sued Cane Creek Development Corporation of Bryson City and Charlotte-based W.K. Dickson & Co., alleging breach of express and implied warranties, breach of contract, negligence, fraud and unfair and deceptive trade practices.

W.K. Dickson & Co. was voluntarily dismissed from the case in 2009, according to counsel for the company.

In its complaint, Alarka Creek alleged that Cane Creek built roads in the subdivision that it claimed “would hold up for years to come.”

But a 2008 engineering report concluded that the roads contained insufficient asphalt and aggregate thickness, insufficient asphalt compaction, insufficient drainage or maintenance of drainage and insufficient slope stability.

Cane Creek argued that there were no mandatory standards for road construction in western North Carolina and that Alarka Creek had failed to properly maintain the roads.

Type of action: Breach of express and implied warranties; breach of contract; negligence; fraud; unfair and deceptive trade practices

Injuries alleged: Actual damages

Case name: Alarka Creek Properties Homeowners Association, Inc. v. Cane Creek Development Corporation

Case number: 08 CVS 36

Court: Swain County Superior Court

Judge: Alan Z. Thornburg

Verdict or settlement: Jury verdict

Date: Feb. 17, 2011

Amount: $2.4 million

Plaintiff’s attorneys: Daniel K. Bryson, Scott C. Harris and Matthew E. Lee, all of Lewis & Roberts (Raleigh); Fred Howell Jones of Jones, Key, Melvin & Patton (Franklin)

– 20 –

Bike crash leads to $2.3M settlement

Two Raleigh attorneys helped a man who was seriously injured in a bicycle crash quickly collect a $2.3 million settlement to improve the quality of his medical care.

Benjamin H. Whitley and his father, Robert E. Whitley, both of the Whitley Law Firm, represented a 35-year-old man who suffered traumatic brain injuries in June 2011, when a bicycle he was riding collided with the side of a car. He was hospitalized for three months following the crash and continues to recover at a rehabilitation and nursing center.

The man had been speeding downhill on his bicycle when the car’s driver failed to brake for a stop sign and crossed in front of him. He also was not wearing a bicycle helmet during the crash.

The insurer agreed to settle the case for the coverage limits of the driver’s underlying liability and umbrella policies. An attorney did not appear for USAA or the driver, but an insurance claims adjuster negotiated the settlement with the plaintiff.

Forsyth County Superior Court Judge William Z. Wood approved the settlement in October 2011, about four months after the collision. The Whitleys had sought an expedited settlement approval so the money would be available through a special needs trust for the plaintiff’s medical care.

Type of action: Negligence

Injuries alleged: Traumatic brain injury

Name of case: Withheld by plaintiff

Court: Forsyth Superior Court

Verdict or settlement: Pre-trial settlement

Amount: $2.3 million

Date of verdict or settlement: Oct. 14, 2011

Highest Offer: None

Insurance Carrier: USAA

Attorneys for plaintiff: Benjamin H. Whitley and Robert E. Whitley (Raleigh)

Attorney for defendant: None appeared: An insurance adjuster negotiated with plaintiff’s attorneys

Were liability and/or damages contested? Yes

– 21 –

Car crash victim gets $2.25M at arbitration

A roofer who described his post-accident pain as “a thousand yellow jackets stinging his arms” was awarded $2.25 million by an arbitration panel. The plaintiff’s injuries stemmed from a 2007 vehicle accident and a subsequent surgery for post-traumatic carpal tunnel syndrome that left him suffering from complex regional pain syndrome. A chronic condition, it is marked by severe burning pain. Plaintiff Billy Payne described the sensation as “never-ending torture.”

Payne was a passenger in his employer’s truck when an uninsured driver crossed the median and slammed into the truck. The collision injured Payne’s neck, back, ribs and wrists.

When Penn National Mutual Casualty Insurance Company failed to respond to Payne’s demand for binding arbitration of his claim, his attorneys filed a motion to compel arbitration. Penn National asserted a statute of limitations defense, contending that Payne had failed to supply it in a timely manner with a copy of the summons and complaint.

The trial court ordered arbitration, giving the arbitration panel jurisdiction to decide all conditions precedent to arbitration, including statute of limitation defenses.

The panel awarded $2.25 million in damages.

Type of action: Uninsured motorist arbitration

Injuries alleged: Complex regional pain syndrome

Case name: Billy Payne v. Pennsylvania National Mutual Casualty Insurance Company

Case number: 10-CVS-3190

Court: Mecklenburg County Superior Court

Arbitration Panel: William Helms, Staten Wilcox, Mel Garofalo

Date: Feb. 21, 2011

Amount: $2.25 million

Special damages: $195,000 for past medical costs; $1.1 million for future medical costs; $540,000 for future loss of earnings

Demand: $1 million

Offer: $600,000

Insurer: Penn National Mutual Casualty Insurance Company

Plaintiff’s attorneys: Michael Workman of Charlotte, Brian deBrun of Charlotte

Defendant’s attorneys: John Malone of Greensboro

– 22 –

Developer’s counterclaim against bank nets $2.1M

A Winston-Salem developer has been awarded $2.1 million by a Forsyth County jury after filing a counterclaim against SunTrust Bank in a lawsuit brought by the bank on a promissory note.

Donald H. Sutphin received a call in October 2009 from a SunTrust banker notifying him that a hold was being placed on $365,000 Sutphin had in deposit accounts at the bank. Sutphin had taken out numerous loans from SunTrust to finance development of properties in the Winston-Salem area. But SunTrust had decided to exit the residential construction loan business as problems in the real estate market multiplied, according to J. Scott Hale, who represented Sutphin.

The deposit accounts constituted Sutphin’s entire working capital at the time. Without it, Hale said, Sutphin couldn’t pay subcontractors or suppliers, and was unable to make his loan payments. SunTrust and other lenders began foreclosure proceedings against numerous properties under development by Sutphin’s company. Then SunTrust sued Sutphin and his company, alleging that they had defaulted on a promissory note.

Sutphin counterclaimed, alleging the bank had engaged in unfair and deceptive trade practices by placing the hold on his deposit accounts. The jury agreed with Sutphin, awarding him and his company $700,000 each.\

The judge granted SunTrust’s motion for a judgment notwithstanding the verdict on the award to Sutphin personally, but let stand the jury’s award to Sutphin’s business. Because the jury found that SunTrust had committed an unfair and deceptive trade practice by placing the hold on Sutphin’s accounts, the trebled the $700,000 in damages awarded to Sutphin’s company.

Type of action: Unfair and deceptive trade practices

Injuries alleged: Damages to business and lost profits

Case name: SunTrust v. Sutphin

Case number: 10 CVS 983

Court: Forsyth County Superior Court

Judge: Lindsay R. Davis, Jr.

Verdict or settlement: Verdict

Date: Verdict entered May 26, 2011; judgment entered July 20, 2011

Amount: $700,000

Special damages: Damages trebled to $2.1 million

Demand: Unknown

Offer: $200,000

Plaintiffs’ attorney: Kevin Williams of Bell Davis & Pitt (Winston-Salem)

Defendants’ attorneys: J. Scott Hale and Robert E. Boydoh of Boydoh & Hale (Greensboro)

– 23 –

When prayer doesn’t work, hire a lawyer

When the North Carolina Department of Transportation informed Greensboro’s Sedgefield Baptist Church that it was in the way of a road project, the DOT offered $950,000 for the church to move on — fair market value, it said. The church, which had been there since the 1950s, said no thanks.

The DOT moved on to other projects, but in 2010 it returned with an updated appraisal and the news that the church would have to vacate by October 2011. That time the offer was $960,250.

The congregation was not impressed. After some debate, its members dug in and got ready for a fight. They lawyered up, retaining Raleigh attorneys George B. Autry, Jr. and Stephanie H. Autry, of Cranfill Sumner & Hartzog, who’d handled several high profile eminent domain cases, and told the DOT that they’d take nothing less than the replacement value of the church.

By the church’s estimates, the land and buildings were worth more than twice what DOT offered.

The DOT used a generic cost manual for buildings, the Marshall Swift Cost Data Service, and determined that it would cost $100 per square foot to replace the church building. But the church retained a structural engineer and an architect, who determined that the building had been well-maintained, and its own appraiser, who said that the value of the building alone was over $1.7 million

Shortly before the Oct. 1 deadline, the parties agreed upon a settlement of $2 million.

Type of action: Land condemnation/eminent domain

Injuries Alleged: Taking of 1.6 acres and church building near Greensboro.

Name of case: DOT v. Sedgefield Baptist Church

Court: Guilford County Superior Court

Case #: 10 CVS 10088

Verdict or Settlement: Settlement

Amount: $2,000,000

Date of verdict or settlement: Sept. 26, 2011

Attorney for plaintiff: Hilda Burnett-Baker, NC Dept. of Justice, Raleigh

Attorneys for defendant: George B. Autry, Jr., and Stephanie H. Autry, Raleigh

– 23 –

Young father’s death results in $2M settlement

Quick investigative work lead to a pretrial settlement and payment of the policy limits of $2 million in a Duplin County wrongful death case.

In June 2011, the defendant was driving 63 mph in a 55 mph zone on Highway 117 in Duplin County. He crossed a double yellow line to pass a car stopped in front of him at an intersection and collided head-on with a car approaching from the opposite direction, killing the 21-year-old driver, and injuring his 20-year-old wife and three-year-old daughter.

The case settled quickly, some six months after the accident. “There was an eyewitness close to the accident scene, and we were able to interview her early on,” said William Plyler of Raleigh’s Kirby & Holt, who represented the wife and daughter.

Also, the defendant was driving a rental car at the time of the collision, Plyler said. “We were able to get our expert to examine the car, before the rental company took custody, and he determined the speed at which the car was traveling at the time of the collision.”

The eventual expected payout to the deceased’s daughter and his wife, including the structured payments, is $6.3 million — $4.9 million for the daughter with payments beginning at age 18 for the remainder of her life, and $1.4 million for the wife, beginning immediately.

Type of action: Wrongful death claim

Injuries Alleged: Death

Name of case: Confidential

Court: Confidential

Case No.: Confidential

Tried Before: Pre-trial settlement

Name of judge, arbitrator or mediator: Russell J. Lanier, Jr.

Special Damages: n/a

Verdict or Settlement: Settlement

Amount: $1,982,012.91 ($1,812,012.91 for wrongful death claim; $120,000 for minor’s bodily injury claim; and $50,000 for decedent’s wife’s bodily injury claim)

Date of verdict or settlement: Dec. 19, 2011

Attorneys for plaintiff: William W. Plyler (Kirby & Holt, LLP) and Daniel T. Barker, Raleigh

– 25 –

Interstate crash settles for $1.75M

A New Jersey family headed south had their trip interrupted by a head-on collision with an electric company truck that sent the father and two sons, ages 10 and 4, to the hospital.

The plaintiffs were driving south on Interstate 95 when a north-bound truck, owned by King Electric, hydroplaned and crossed the median, hitting the plaintiff’s car.

The impact fractured vertebrae in the 39-year-old father’s neck and lower back, and fractured his right knee, right foot, and left elbow. The 10-year, who is diabetic, suffered internal injuries when the impact of the crash forced his insulin pump into his large and small intestines, causing perforations. The crash also fractured a vertebra in his lower back. The 4-year-old suffered a broken collar bone. The father and the 10-year-old required surgery. The 4-year-old needed counseling after the wreck.

Attorneys for the family secured a $1.75 million settlement.

Type of action: Motor vehicle accident with personal injuries

Injuries alleged: Multiple orthopedic injuries to 39-year-old father. Internal injuries and spinal fracture for 10-year-old boy. Broken collar bone for 4-year-old boy.

Case name: Altman v. King Electric, et. al

Case number: 11 CVS 4206

Court: Cumberland County Superior Court

Verdict or settlement: Settlement

Date: December 2011

Amount: $1.75 million

Plaintiff’s attorneys: David F. Kirby and William B. Bystrynski of Kirby & Holt, Raleigh

Defendant’s attorneys: William Pollock, of Ragsdale Liggett, Raleigh

– 26 –

Doctors get $1.58M arbitration award

Haywood Emergency Physicians had been providing emergency room services to Haywood Regional Medical Center since 1991. The contract that was the subject of this arbitration was signed in 2002 and was to expire in May 2008.

In 2006 HEP requested an extension of the existing contract. HRMC responded by demanding that a new agreement be reached, replacing the old contract and giving HRMC greater control over operation of the ER. When no new agreement was reached HRMC terminated the old contract and replaced HEP with another group.

Although HRMC contested liability it did not present evidence at the arbitration hearing on that issue. Because there was no North Carolina law on how to calculate lost profits in this situation, HEP and eight of its individual shareholders were all named as plaintiffs.

HRMC argued that the most accurate manner for calculating lost profits for a professional corporation was to calculate the lost profits for the shareholders that were parties to the suit and the minimal profit that would have been shown at the corporate level on HEP’s income tax return.

HEP argued that while the amount payable to the shareholders was evidence of lost profits, HEP was not limited to the individual shareholder’s lost profits or to the taxable profits shown on the corporate tax return. There was no N.C. law on that issue.

The panel accepted HEP’s argument and calculated the lost profits of HEP based upon the amount that would have been available for distribution to all of the shareholders of the corporation and then reduced that amount by mitigation earnings or mitigation income that should have been earned.

Type of action: Breach of contract

Injuries alleged: Lost profits

Case name: Haywood Emergency Physicians, Inc. et al. v. Haywood Regional Medical Center, Inc.

Case number: 07 CVS 136

Court: Haywood County Superior Court

Arbitrators: Max O. Cogburn Jr., Fred H. Moody Jr. and Sharon L. Parker

Verdict or settlement: Arbitration award

Date: Jan. 27, 2011

Amount: $1,198,447, plus $383,503 interest

Demand: $1.8 million

Plaintiff’s attorney: William E. Cannon Jr. of Brown, Ward & Haynes (Waynesville); Frank G. Queen (Waynesville)