NC Largest Verdicts & Settlements 2017

In this issue, North Carolina Lawyers Weekly presents its annual compilation of million-dollar verdicts and settlements.

The survey highlights 38 verdicts and settlements of $1 million or more that were submitted to our editors, or were discovered by our reporters, over the past year. Causes of action, as usual, run the gamut.

The city of Charlotte tops the list of last year’s biggest payouts, agreeing to pay Tim Bridges $9.5 million for 25 years’ worth of wrongful incarceration. Bridges sued the city and several former police officers after DNA evidence cleared him of raping an elderly woman on Mother’s Day 1989.

Two weeks into trial, a motorcycle driver who will spend the rest of his life in a wheelchair settled his personal injury case against the unnamed defendants for $7 million. By laying his bike down, the plaintiff avoided broadsiding the tractor trailer that had pulled into his path. Unfortunately, he suffered a serious head injury and is expected to require round-the-clock care as long as he lives.

A rarity last year, this year’s survey features 10 eminent domain cases and an inverse condemnation settlement.

Other notable verdicts and settlements include a $5 million breach of contract; a $4.5 million medical malpractice suit; a $2.1 million False Claims Act suit; a runaway ambulance that led to a $1.5 million negligence settlement; a $1.5 million whistleblower verdict; and a $1.1 million heartbalm settlement.

To qualify for the survey, a verdict or settlement must have been for at least $1 million, been reached in 2017, and decided in a North Carolina court or, if another state, handled by a North Carolina-based attorney.

If we have missed any million-dollar verdicts or settlements from 2017, please let us know. We’ll be glad to add that information to the online version so that our list can be as complete as possible.

• Charlotte settles wrongful conviction suit for $9.5M

After spending 25 years in prison for a rape he did not commit, Tim Bridges negotiated a $9.5 million settlement with the city of Charlotte.

Bridges sued the city and several now-retired members of its police department in 2016, after DNA testing excluded him as the perpetrator of the rape and beating of 83-year-old Modine Wise on Mother’s Day in 1989. He’d been serving a life sentence.

Bridges, who received a pardon from former Gov. Pat McCrory, alleged in his federal complaint that investigators bungled the inquiry into Wise’s rape, fabricated critical forensic evidence that was used against him and failed to share information with prosecutors that could have proven his innocence.

“There was a complete failure of training and policy with regard to exculpatory evidence,” said one of Bridges’ attorneys, David Rudolf of Rudolf Widenhouse in Charlotte.

They argued that Charlotte police officials failed to tell prosecutors that investigators in nearby Gaston County had alerted them about a man who matched the description of Wise’s attacker and was sitting in jail, accused of raping two women. He’d also previously raped three other elderly women, according to Bridges’ suit.

Two hairs found at the scene accounted for the only physical evidence that prosecutors had to link Bridges to the crime. Elinos Whitlock, an FBI-trained forensic specialist who worked in the Charlotte Mecklenburg Police Department’s Crime Lab, testified that it was “likely” that the hairs came from Bridges.

But Bridges’ forensic hair expert, Skip Palenik, founder of the Microtrace analytical laboratory in Elgin, Illinois, determined that Whitlock’s conclusion was “beyond the accepted limits of science.”

Conspicuously absent from a post-settlement statement issued by the city was an apology to Bridges, who was raped in prison, according to his attorneys, and now copes with post-traumatic stress disorder while trying to understand and adapt to all the changes that occurred in the outside world while he was incarcerated.

“There was no apology and a standard paragraph saying, ‘We’re denying the claims and this is not to be construed as any acceptance of responsibility,’” Rudolph said.

SETTLEMENT REPORT — WRONGFUL CONVICTION

Amount: $9.5 million

Injuries alleged: Civil rights violation

Case name: Timothy Bridges v. City of Charlotte, et al.

Court: U.S. District Court in Charlotte

Case  No.: 3:16-CV-564

Mediator: Raymond Owens Jr. of Higgins & Owens in Charlotte

Judge: Graham Mullin

Date of settlement: Dec. 1

Attorneys for plaintiff: David Rudolf and Sonya Pfeiffer of Rudolf Widenhouse in Charlotte

Attorneys for defendants: Daniel Peterson and Mark Newbold, both of Charlotte

2. DOT to pay $8.6 million for strip of land along highway

The North Carolina Department of Transportation agreed to pay $8.6 million to compensate a Union County manufacturer for taking half an acre of highway access earmarked for the Monroe Bypass.

McGee Corporation, based in Stallings, constructs canopies of the sort you park your car under while filling up your gas tank. An attorney for the company, Stephanie Hutchins Autry of Cranfill Sumner & Hartzog in Raleigh, reported that the DOT took .556 acres from a 22.59 acre tract on which the company had built its headquarters. The DOT claimed a fairly narrow strip of land immediately abutting Highway 74, known in condemnation law as a “strip taking.”

The DOT initially offered just $122,150 for the land, but the company argued that it should also be compensated for the economic damage wrought on its manufacturing plant, an industrial behemoth with three assembly lines each the length of a football field. Autry said that the lack of highway access would have rendered the land unfit for that purpose given the fleet of tractor trailers that have to make their way on and off the site.

“The DOT didn’t recognize the huge loss in value to the land from the loss of access to Highway 74, and they completely missed the impact on the building,” Autry said. “By messing with their access, the DOT made it so that their workflow wouldn’t work anymore.”

Ultimately, the two sides reached a settlement May 12 under which the DOT will pay the company $8.6 million and grant concessions that guarantee the company continued access to the highway, something that could not have been obtained at a jury trial. Autry said that the concessions will allow McGee to continue manufacturing at the site, although the traffic pattern will not be as convenient as it had been.

Autry said that in an effort to mitigate the damage, McGee had purchased a 20-acre parcel nearby, only to see the DOT take that parcel as well. The two sides had already reached a separate settlement over that tract.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $8.6 million, plus guarantees of highway access

Injuries alleged: Condemnation of .556 acres from a 22.59 acre tract

Case name: N.C. Department of Transportation v. McGee Corporation

Court: Union County Civil Superior Court

Case No.: 16-CVS-661

Mediator: Bob Beason of Beason & Ellis in Durham

Date of settlement: May 12

Attorney for plaintiff: Martin McCracken of the N.C. Department of Justice in Raleigh

Attorney for defendant: Stephanie Hutchins Autry of Cranfill Sumner & Hartzog in Raleigh

3. Motorcyclist reaches $7M settlement after start of trial

A motorcyclist who was left permanently confined to a wheelchair after a collision with a tractor trailer has reached a $7 million confidential settlement with the defendants, an attorney for the plaintiff reports. The settlement came as the two sides were nearing the end of the liability phase of a bifurcated jury trial.

Tom Comerford of Comerford & Britt in Winston-Salem reports that the case arose from a collision at a T-intersection between a motorcycle driven by the plaintiff and a tractor trailer operated by the defendants. He said that the trial had been going on for two weeks and was nearing the end of the defense’s evidence when the two sides reached the settlement on May 12.

The defense contended that the tractor trailer driver stopped at the stop sign controlling the intersection and pulled into the intersection without seeing the plaintiff, whom the driver claimed was approaching the intersection at a high rate of speed. The defense called a witness who testified that the motorcyclist passed him less than a half mile from the accident site at a speed in excess of 90 mph.

The plaintiff relied on accident reconstruction testimony which showed that the plaintiff was traveling at close to the posted speed limit when the tractor trailer pulled into his path of travel. The plaintiff, who had been an electrician, applied the brakes and slid under the trailer, but sustained a serious head injury from the impact with the ground that left him wheelchair-bound and requiring round-the-clock care for the rest of his life, Comerford said.

Comerford cited the judge’s decision to toss out the defendant’s theory of contributory negligence as a key factor that pushed the two sides toward a settlement.

“I think they had felt like [contributory negligence] was their ace in the hole on liability,” Comerford said, saying that juries can often display a significant bias towards motorcyclists on that issue.

The name of the case, identity of the defendants and their counsel, and the court in which the case was filed were all withheld pursuant to the confidentiality agreement.

SETTLEMENT REPORT — PERSONAL INJURY

Amount: $7 million

Injuries alleged: Serious head injury, permanent confinement to wheelchair

Case name: Withheld

Court: Withheld

Date of settlement: May 12

Most helpful experts: Johnnie Hennings and Steve Farlow of Raleigh (accident reconstruction) and Michael Maddox of Madison (human factors expert)

Attorney for plaintiff: Tom Comerford of Comerford & Britt in Winston-Salem

Attorneys for defendant: Withheld

4. Attempted breach fails, plaintiff gets $5.057M

On March 20, a plaintiff who was allegedly stiffed after providing a letter of credit for a $50 million government contract bid won what he says was rightfully his as part of the deal: more than $5 million.

According to court records, defendant Cruise Connections Charter Management planned to make a $50,575,000 bid on a contract to arrange for three cruise ships to serve as floating hotels for a Royal Canadian Mounted Police task force. The Mounties would provide security during the 2010 Vancouver Winter Olympics.

Bidders were required to provide a letter of credit for 10 percent of their total bid amount with their proposal.

If Winston-Salem based Cruise Connections won the bid, it stood to make at least $14 million, records show. But six days before proposals were due, Cruise Connections had not obtained the required letter of credit. The company approached Sessions, owner of property management company Carolina Shores Leasing, to provide the $5.057 million letter of credit.

The day before the deadline, Sessions agreed to provide an irrevocable standby letter of credit in exchange for the same amount of consideration if Cruise Connections won the contract. Cruise Connections agreed to the terms, documents show.

About a week later, Cruise Connections was awarded the contract, though it eventually, and unsuccessfully, tried to renegotiate the agreement with Sessions.

Cruise Connections later sued the Canadian government, after Canada changed its contracting representatives and terminated its agreement with Cruise Connections. In December 2014, Cruise entered into a settlement agreement with Canada for nearly $17 million.

When Cruise then declined to pay Sessions, sued for breach of contract, and was awarded summary judgment. One of Cruise’s attorneys, Stanley Green of Strauch Green & Mistretta in Raleigh, said his clients appealed the decision to the North Carolina Court of Appeals and, during the appeal, settled the case under confidential terms.

An attorney for Sessions, Matthew Bryant of Hendrick Bryant in Winston-Salem, said this is a case of his client fronting the defendant money, contingent to an agreement, and the defendant opting not to pay.  

VERDICT REPORT — CONTRACT DISPUTE

Injuries alleged: Breach of contract

Amount: $5,057,500

Case name: John Sessions v. Cruise Connections Charter Management I, LLP et al.  

Court: Forsyth County Superior Court

Judge: Judge John Craig III

Case No.: 14-CVS-7674

Date of verdict: March 20

Attorneys for plaintiff: Matthew Bryant of Hendrick Bryant in Winston-Salem, and Henry Parr Jr. of the Wyche Law Firm in Greenville, South Carolina

Attorneys for defendant: Stanley B. Green of Strauch Green & Mistretta in Raleigh, and G. Gray Wilson of Nelson Mullins in Winston-Salem

5.Land owners settle for $4.95M after court excludes DOT’s witnesses

The former owners of a commercial building that was demolished to make way for construction of the Monroe Bypass reached a $4.95 million settlement with the North Carolina Department of Transportation.

They persuaded a judge to disqualify the state’s expert witnesses because none of them ever saw the inside of the building before it was razed, according to their attorneys.

Two of the appraisers never even saw the outside of the building because it had already been bulldozed before they were hired, the attorneys said.

George Autry and Stephanie Hutchins Autry of Cranfill Sumner & Hartzog in Raleigh report that their clients owned a 6.35-acre tract in Stallings which had housed a 33,643 sq. ft. commercial building that had been used for manufacturing and warehousing. The building’s owners contended that its features made it easily adaptable to a wide variety of commercial uses and that commercial development would be the most valuable use of the land.

Four outside consultants hired as appraisers by the DOT’s Turnpike Authority concluded that the building’s greatest value was actually for manufacturing or warehouse purposes, not for commercial use, and that the building was therefore less valuable than the owners contended.

Before trial the owners learned that none of the appraisers had been inside the building, and two hadn’t seen its exterior. They initially moved to exclude three of the witnesses on the grounds that their testimony did not meet the standards for admissibility and that they had violated the DOT’s certification standards for appraisers.

Union County Superior Court Judge Chris Bragg granted the motions, and the next day, when the owners prepared to move to exclude the remaining expert witness, the Authority agreed to settle the case for $4.95 million, more than twice its initial deposit of $2,257,350, Stephanie Hutchins Autry said.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $4.95 million

Injuries alleged: Taking of 5.15 acres of a 6.35-acre tract and a 33,643 sq. ft. commercial building

Case name: North Carolina Department of Transportation Turnpike authority v. Harold Mull and Joy Mull

Court: Union County Superior Court

Case No.: 15-CVS-3265

Judge: Chris Bragg

Date of settlement: May 16

Attorneys for defendant: George Autry and Stephanie Hutchins Autry of Cranfill Sumner & Hartzog in Raleigh

Attorneys for plaintiff: Martin McCracken and Christine Wright of the N.C. Dept. of Justice in Raleigh

6. Waste Industries settles class actions for nearly $4.9M

Raleigh-based Waste Industries LLC was sneakily collecting more than garbage and recycling, according to a pair of class action lawsuits in North Carolina and Georgia that were settled for nearly $4.9 million.

The complaints alleged that Waste Industries duped its customers by charging sham fuel and environmental fees between March 2011 and September 2017. Wild Rides Internet Cafe spearheaded the suit against Waste Industries in the North Carolina Business Court, while Climate Masters Heating & Cooling took the lead in Georgia.

Both class actions were consolidated in Georgia state court, where a preliminary settlement agreement reached in August for $4.875 million was finalized during a hearing Nov. 2. The settlement contains a confidentiality provision that prohibits the plaintiffs, their attorneys and defense counsel from making any public statements about the case.

According to Wild Rides’ complaint, Waste Industries improperly tacked on additional charges to customers’ bills for “oil/environmental price adjustment” and “environmental/regulatory recovery fees” to purportedly recover increased fuel and environmental costs incurred while providing waste disposal services.

But it turns out that Waste Industries was already collecting fees for those same costs in the regular service rate that it charged customers, Wild Rides alleged.  

The suit accused Waste Industries of running afoul of North Carolina’s Unfair and Deceptive Trade Practices Act by using the bogus fees to “generate extra profit at its customers’ expense, all while deceiving customers into believing that the fees are legitimate charges that directly reflect the actual increased fuel and environmental costs Waste Industries incurs.”

Waste Industries denied wrongdoing and stated in the settlement agreement that it wanted to resolve the case to avoid further litigation costs.

SETTLEMENT REPORT — CLASS ACTION/CONTRACT DISPUTE

Amount: $4.875 million

Injuries alleged: Improper and excessive fees

Case name: Wild Rides Internet Cafe, LLC v. Waste Industries, LLC

Court: North Carolina Business Court

Case No.: 2017-CVS-830

Judge: Gregory McGuire

Mediator: Edward Infante  

Date of settlement: Agreement reached Aug. 4,  finalized Nov. 2

Attorneys for plaintiffs: Davidson Myers of the Law Offices of John Drew Warlick in Jacksonville

Attorneys for defendant: Michael DeFrank, Paul Puryear and Benjamin Thompson of Wyrick Robbins in Raleigh

7. $4.5M settlement reached in birth defect case

A young mother who had an uneventful pregnancy but whose child suffered a brain injury at birth agreed to settle her medical malpractice suit for $4.5 million.  

According to Thomas Comerford of Comerford & Britt in Winston-Salem, the woman went to the hospital in labor. Comerford declined to identify the hospital and many details of the case pursuant to a confidentiality agreement.

After several hours, Comerford said, the defendants began augmentation of labor by using Pitocin — a natural hormone used to induce labor, but not without some risk. After several more hours of “non-reassuring fetal monitoring,” the Pitocin was turned off but the baby was not delivered for about three more hours.

“The baby was diagnosed with hypoxic ischemia after birth and brain injury was confirmed by magnetic resonance imaging,” Comerford wrote in an email. “Spastic quadriplegic cerebral was diagnosed shortly thereafter.”

Hypoxic-ischemic encephalopathy is a brain injury caused by oxygen deprivation. Spastic quadriplegia is the most severe form of cerebral palsy.

Comerford praised opposing counsel — “colleagues on the other side of the case” — for their professionalism and compassion, adding that the settlement will allow his client to have an accessible home, a vehicle to accommodate his special transportation requirements, and some respite care for his mother.

“Essentially, it will allow this child a measure of dignity as he grows from childhood to adulthood that otherwise would have been lacking,” he said.

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Injuries alleged: Hypoxic ischemic encepalopathy and cerebral palsy

Amount: $4.5 million

Case name: Withheld

Court: Withheld

Dates of settlement: March 1

Attorneys for plaintiff: Tom Comerford and John Chilson of Comerford & Britt in Winston-Salem

Attorneys for defendants: Withheld

8. Construction class action nets $4.2M

A group of homeowners in Cary reached a multi-million dollar settlement with the general contractor that improperly installed the concrete siding in their homes, bringing a close to a legal wrangle that took more than eight years to resolve.

The plaintiffs filed a warranty claim against KB Home Raleigh-Durham Inc. in December 2008 alleging that KB Home neglected to install a weather-resistant barrier beneath the siding on their homes, resulting in damages from water intrusion into the walls of the homes.

The case was hung up in the appellate court system for years due to disputes over whether the homeowners should be properly certified as a class, and whether the homeowners should be compelled to submit their claims for arbitration.

Ultimately both issues were resolved in favor of the homeowners, and in March 2016, North Carolina Business Court Judge Gregory McGuire ruled that installing the siding without the barrier violated the state’s building code because KB Home did not seek the Town of Cary’s review and approval for using a product that was not at that time included the building code.

After that order, the parties began negotiating a settlement under which plaintiffs who were still living in the deficient homes as of November would have the option to receive lump sum payments ranging from $6,500 to $17,000, or to apply to receive repairs to their homes. Plaintiffs who sold their homes prior to that date would receive a payment of $3,250 or the actual documented decrease in sale value of their homes up to $12,000.

A plaintiffs’ attorney, Scott Harris of Whitfield Bryson & Mason in Raleigh, said that there were roughly 310 sets of homes in the class. He originally estimated a $4-$6 million payout and later confirmed that figure to be $4.2 million.

The award includes attorneys’ fees and reimbursement of costs of $1,925,000.

SETTLEMENT REPORT — CONSTRUCTION DEFECT

Amount: $4.2 million

Injuries alleged: Home damage from water intrusion, failure to comply with building codes

Case name: Elliott et al v. KB Home Raleigh-Durham, Inc.

Court: North Carolina Business Court

Case No.: 08-CVS-21190

Judge: Gregory McGuire

Date of settlement: April 17

Attorneys for plaintiff: Scott Harris, Daniel Bryson and Gary Mason of Whitfield Bryson & Mason in Raleigh and Washington D.C.

Attorney for defendant: Michael Knapp of Bradley Arant Boult Cummings in Charlotte

9. Land taken for new Raleigh rail station prompts $3.95M settlement

From the balconies of Bloomsbury Estates, seven floors of luxury apartments in the Boylan Heights section of Raleigh, residents have a commanding view overlooking the construction of Union Station, the new regional transportation hub due to be completed this year. The station will be a boon for the city, but comes at a steep cost for the building’s residents — the North Carolina Department of Transportation took land that had been earmarked for a planned second apartment building in order to lay railroad tracks that had to be re-routed.

On June 21, the building’s developer, the residents’ homeowners association, and Wake County reached a $3.95 million settlement with the DOT as compensation for the taking.

George Autry and Stephanie Hutchins Autry of Cranfill Sumner & Hartzog in Raleigh said that the DOT condemned .25 acres of right of way and .21 acres of temporary construction easement owned by Bloomsbury Estates, just enough to preclude the construction of the planned matching second building. The DOT deposited $779,000 based on appraisal, but Bloomsbury argued that this appraisal was flawed because the appraiser failed to account for any negative effects on the value of the existing building.

An appraiser for the property owner contended that the units in the existing building will no longer be as valuable because the second building would have provided a buffer against noise from the railroad, whereas the new design of the railway was “like an amphitheater which funneled sound toward the building.” The loss of the second building will also make it unfeasible to construct certain amenities that had been planned for the complex as originally designed, Stephanie Autry said.

The property owners also disputed the manner in which the DOT appraiser’s calculated the value of the land being taken, and his contention that a smaller second building could be built elsewhere on the plot.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $3.95 million

Injuries alleged: Condemnation of .25 acres of right of way and .21 acres of temporary construction easement from a 2.1-acre tract

Case name: N.C. Department of Transportation v. Bloomsbury Estates, LLC, Bloomsbury Estates Condominium Homeowners Association, Inc. and County of Wake.

Court: Wake County Superior Court

Case No.: 15-CVS-9786

Mediator: Bob Beason of Beason & Ellis in Durham

Date of settlement: June 21

Attorney for plaintiff: Douglas Corkhill of the N.C. Department of Justice in Raleigh

Attorneys for defendant: George Autry and Stephanie Hutchins Autry of Cranfill Sumner & Hartzog in Raleigh

10. One for the road: Family settles with DOT for $3M

A Union County family reached a more than $3 million settlement with the N.C. Department of Transportation after it showed that the state’s initial appraisal of their land was based on a faulty conclusion about a dirt road on the property.

George Autry and Stephanie Hutchins Autry of Cranfill Sumner & Hartzog in Raleigh reported that the state’s Turnpike Authority took 1.35 acres of a 21.1 acre vacant tract in Stalling for the construction of the Monroe Bypass. The property was in a prime location for commercial development and had direct access onto Highway 74, but its owners had been unable to sell it because potential buyers knew that the Turnpike Authority planned to take away its highway access.

As a consequence, the property had remained undeveloped except for a dirt farm road that traversed the length of the property.

The Turnpike Authority’s appraiser agreed that commercial development had been the property’s best use before the taking, but concluded that the dirt road was an access easement that affected the property’s commercial development potential, making it worth considerably less than other commercial properties. He concluded the property was worth $110,000 per acre, and the loss of all direct highway access reduced its value to $65,000 per acre.

But Stephanie Autry said that public records actually showed that the purported access easement thought to extend across the whole property was actually an old farm road that the family had built for themselves and was never intended to give anyone else access to the property.

The family argued that, but for the chilling effect of the Turnpike Authority’s planned project, the property would have been worth more than $200,000 per acre, but would sell for no more than $65,000 per acre.

On April 7, the DOT agreed to pay the property owners $3,058,751 for the taking of the land — reflecting the full amount of the devaluation alleged by the property owners.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $3,058,751

Injuries alleged: Taking of 1.35 acres of land and highway access

Case name: NCDOT, Turnpike Authority v. Griffin Trust, el al.

Court: Union County Superior Court

Case No.: 16-CVS-0514

Mediator: Bob Beason of Beason & Ellis in Durham

Date of settlement: April 7

Attorneys for plaintiff: George Autry and Stephanie Hutchins Autry of Cranfill Sumner & Hartzog in Raleigh

Attorney for defendant: Martin McCracken of the N.C. Dept. of Justice in Raleigh

11. Victim of head-on collision reaches $3M settlement

An Eastern North Carolina man who suffered serious injuries in a head-on collision with a commercial truck agreed to a $3 million confidential pre-suit settlement.

Jay Ferguson and Philip Mullins of Thomas, Ferguson & Mullins in Durham said that his client had just left from his job on a construction site when the truck’s driver drove his vehicle left of center and struck their client’s automobile head-on, nearly killing him. The client sustained fractures to both of his arms and legs, fractured vertebra, and a closed head injury, a type of traumatic brain injury common in car crashes.

Emergency personnel extracted the client from his automobile and airlifted him to Duke University Medical Center, where he received life-saving medical care for nearly four weeks, the attorneys said. The plaintiff also underwent 10 surgical procedures during the 12 months following the collision.

Ferguson said that his firm prepared a “powerful” mediation presentation for the insurance carrier and defense counsel to consider during the mediation. Mark Valentine with The Visual Advantage in Raleigh provided the medical illustrations and exhibits included in the presentation.

“Our goal was to present it to them to let them know that we were ready for trial if we had to try the case,” Ferguson said. “Our client had significant injuries that were very visible on X-rays, so we had Mark work up all those X-rays with colorized exhibits so that the defendant knew that they had really hurt our client and that the jury would see all those injuries. That was our goal.”

Ferguson said that his client worked an office job in large construction facilities and had returned to full-time employment by the time of the mediation. Although he had serious injuries, surgeries and scarring, the plaintiff worked very hard in physical therapy to have no significant reduction on his normal activities of daily living.

“I think the biggest thing in any personal injury case is the character of the plaintiff, and we had a tremendous, wonderful plaintiff who was injured just as he left his job, and it was the kind of plaintiff that a jury would like to help,” Ferguson said.

The names of the parties and defense counsel were withheld pursuant to the terms of the agreement.

SETTLEMENT REPORT — PERSONAL INJURY

Amount: $3 million

Injuries alleged: Fractures to both arms and both legs, fractured vertebra, closed head injury

Case name: None (case settled pre-suit)

Mediator: Thomas Duncan of Greensboro

Date of settlement: April 13

Special damages: $420,000 in past medical expenses

Attorneys for plaintiff: Jay Ferguson and Philip Mullins of Thomas, Ferguson & Mullins in Durham

Attorneys for defendant: Withheld

12. Expert helps motorcyclist get nearly $3M settlement

A motorcyclist who crashed into a commercial pickup truck as he was heading to his parents’ home for Thanksgiving in 2015 reached a nearly $3 million settlement with the truck’s driver and his company.

According to Bob Whitley of Whitley Law Firm in Raleigh, Chase Cayton was riding a borrowed motorcycle along a narrow rural road when the truck’s driver turned left into a driveway in front of Cayton, who was coming from the other direction. Cayton, 23, didn’t have enough time to brake before he crashed into the side of the truck. He sustained a severe brain injury and a fractured right leg and was hospitalized for approximately two months.

Accident reconstruction experts for the two sides disagreed significantly over how fast Cayton was traveling as he approached the vehicle. The insurance carrier’s expert concluded that Cayton’s approach speed exceeded 80 mph, while Cayton’s two experts concluded that his approach speed was about 53 mph, just below the speed limit for the stretch where the wreck occurred.

The carrier continued to deny the claim and made no offers. A few weeks before mediation, Cayton retained the services of Wade Bartlett, a reconstruction expert based in Rochester, New Hampshire and the co-author of a paper upon which the insurance carrier’s expert based his analysis. Bartlett concluded that the carrier’s expert had made several mistakes in his own analysis of the wreck. Whitley said that this testimony was critical in spurring the settlement.

“I just couldn’t get the insurance company to come off their speed opinion, and they knew they were going to put their expert on the stand, and maybe the jury would find contributory negligence,” Whitley said. “But I think Bartlett’s testimony took care of that … Finding the author of the paper upon which their expert relied [was crucial].”

SETTLEMENT REPORT — NEGLIGENCE

Amount: $2,988,396

Injuries alleged: Severe brain injury and fractured right leg

Case name: Chase Cayton v. Timothy McCarter and Tim McCarter Plumbing, Inc.

Court: Pitt County Superior Court

Case No.: 16-CVS-399

Mediator: Bonnie Weyher of Yates, McLamb & Weyher in Raleigh

Date of settlement: Aug. 14

Attorney for plaintiff: Bob Whitley of Whitley Law Firm in Raleigh

Attorney for defendant: George Simpson of Raleigh

13. $2.9M for delivery driver injured in head-on crash

A FedEx driver who was injured in a head-on collision with a dump truck received a $2.9 million settlement.

The dump truck driver’s attorneys had argued that their client had to swerve into oncoming traffic to avoid crashing into a vehicle that had suddenly stopped in front of the truck, according to a report from the FedEx driver’s attorney, Hoyt Tessener of the Law Offices of James Scott Farrin in Durham.

Tessener said a confidentiality provision in the settlement agreement prevented him from naming either of the drivers or the defense attorneys in the case.

The 2013 collision left his client with a fractured femur that required several surgeries, including two hip replacements. He said the incident affected his client’s ability to return to work and stressed that she was a “hard-working mom whose life had been forever changed.”

Tessner said the defense had disputed whether the plaintiff could return to work full-time and also argued that it should not have to pay for some of her damages, including treatment she received following the crash for a staph infection — because she had developed the condition at the hospital.  

“Our argument was that she wouldn’t have been in the hospital if this hadn’t happened to begin with,” Tessener said. He added that the defense later asserted that the plaintiff developed the infection while at home.

“It seemed like a Hail Mary,” he said, “but it never developed.”

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $2.9 million

Injuries alleged: Femur fracture with multiple surgeries

Case name: Withheld

Court: Pitt County Superior court

Mediator: Jacqueline Clare of Raleigh

Date of settlement: July 11

Attorneys for plaintiff:  Hoyt Tessener of the Law Offices of James Scott Farrin in Durham and Donald Beskind of Durham

Attorney for defendant: Withheld

14. Charlotte warehouse, DOT reach $2.25M settlement

A warehouse company in Charlotte reached a $2.25 settlement with the North Carolina Department of Transportation over a tenth-of-an-acre property that was taken to build a bridge for the extension of the city of Charlotte’s light rail.

David Murray and Thomas Odom Jr. of The Odom Firm in Charlotte reported that Warehouse Solutions operated a 94,000-square foot warehouse in NoDa, a Charlotte neighborhood that has been revitalized from a dilapidated mill town into a trendy arts-and-entertainment district. The DOT condemned a small portion of the property directly against the southwest corner of the building

The taking caused the loss of the only access to the main customer entrance and loading dock, forcing the relocation of the warehouse’s primary tenant. That left the majority of the building open and unmarketable, Murray said, and so the property could no longer function at its highest and best use as a warehouse.

After a pre-taking appraisal, the DOT made a deposit of $1,159,800. The DOT engaged a second appraiser who met with the landowner and its attorneys, but did not initially provide a copy of the new appraisal report to the landowner. An appraisal by the landowner estimated compensation at $2,317,600, and the landowner served a subpoena on the second appraiser in order to obtain the appraisal report, which closely mirrored the opinion from the landowner’s appraisal.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $2,252,750

Injuries alleged: Taking of .09 acres occupied by a warehouse

Case name: NCDOT v. Warehouse Solutions of Charlotte

Court: Mecklenburg County Superior Court

Case number: 15-CVS-1917

Date of settlement: May 5

Most helpful expert: Roscoe Shiplett of Charlotte (MAI Appraiser)

Attorney for plaintiff: Assistant Attorney General James Concepcion

Attorneys for defendant: David Murray and Thomas Odom Jr. of The Odom Firm in Charlotte

15. Paralysis after misdiagnosis leads to $2.25M settlement

A 28-year-old Marine veteran who suffered paralysis from the waist down after emergency room doctors failed to diagnose an infection that was compressing the nerves along his spine reached a $2.25 million confidential settlement.

Darren Dawson of Dawson & Albritton in Greenville reported that his client is a veteran of the war in Afghanistan who injured his back when an explosive device detonated under his vehicle while he was traveling in a combat convoy. He was honorably discharged from the Marines, and about 10 months after his return to the U.S. he was in the course of one week admitted to the emergency room of an unidentified hospital three separate times, complaining of severe back pain and urination difficulties.

On the third occasion, the client began to experience neurological deficits and onset of paralysis. He was flown to another hospital and diagnosed with an epidural spinal abscess—a collection of pus and germs between the outer covering of the spinal cord and the bones of the spine that causes swelling in the area which compress the spinal nerves—which required immediate decompression surgery.

“Unfortunately, the neurosurgeon just got to him too late. Part of our argument was that had they discovered the abscess sooner, he could have been operated on sooner, and avoided paralysis at least in some measure,” Dawson said. “The sooner you get to the operating table, the better the outcome most of the time.”

The client alleged negligence against the first hospital and its ER physicians for failing to diagnose the abscess, arguing that doctors should have ordered an MRI to be taken, and that this would have discovered the abscess. Dawson said that the second hospital did order an MRI taken and was able to quickly diagnose the problem.

The defense contended that a spinal epidural abscess is an extremely rare condition and that the patient did not present with the typical risk factors of an abscess patient until the third visit, Dawson said.

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $2.25 million

Injuries alleged: Paralysis from the waist down due to undiagnosed spinal epidural abscess

Case name: Confidential

Court: Withheld

Date of settlement: June 20

Attorney for plaintiff: Darren Dawson of Dawson & Albritton in Greenville

Attorneys for defendant: Withheld

16. Drug company to pay government $2.1M in FCA suit

Baxter Healthcare Corporation, producer of drugs and medical products and services, agreed to pay more than $2.1 million to settle a False Claims Act suit accusing it of selling adulterated drugs throughout the country in 2011 and 2012.

Baxter is headquartered in Illinois but has manufacturing facilities worldwide, including one in Marion.

According to attorney Thomas Odom of The Odom Firm in Charlotte, Baxter manufactured and sold millions of IV bags at the Marion plant while managers knew that the “clean room” where the bags were filled was mold-infested. The suit was filed by Chris Wall, an HVAC technician who worked at the plant and reportedly tried several times to convince supervisors to stop producing the bags and eliminate the mold.

Wall eventually took his concerns to the Food and Drug Administration, which discovered the mold during a surprise inspection.

The suit claims that Baxter caused the United States to pay for the adulterated drugs through federal programs such as Medicare and Medicaid, and through direct purchases by military hospitals.
“Selling drugs that will be used in the Veteran Administration hospitals and other hospitals across the country that have been knowingly manufactured in non-sterile conditions and in violation of the current good manufacturing practices has potential serious and far-reaching consequences to people of the United States who are prescribed these fluids,” Odom wrote in a statement.

Wall, who has worked at Baxter since 1979 and still works there today, was awarded more than $430,000 of the settlement’s proceeds.

In settling the claims, Baxter did not admit liability.

In addition to the civil settlement, Baxter also entered into a criminal deferred prosecution agreement and will pay $16 million in monetary penalties and forfeiture, according to the U.S. Department of Justice.

SETTLEMENT REPORT — FALSE CLAIMS ACT

Amount: $2.158 million

Injuries alleged: False Claims Act violations

Case name: United States ex rel. Wall v. Baxter Healthcare Corp., et al.

Court: U.S. District Court

Case No.: 1:13-CV-42

Date of settlement: Jan. 12

Attorneys for plaintiffs: Anthony Scheer of Rawls, Scheer, Clary & Mingo, and Thomas Odom Jr. of The Odom Firm, both in Charlotte

Attorneys for defendants: Martin Brackett Jr. of Robinson Bradshaw in Charlotte and Mitchell Lazris of Hogan Lovells in Washington

17. Jury awards $2M in fatal head-on collision

On Aug. 9, a Wilson County jury awarded $2 million to the estate of a 70-year-old man killed last year when another vehicle crossed the centerline and crashed head-on into the small truck in which he was a passenger.

Johnny Baines died instantly or almost instantly, the medical examiner said, from an open skull fracture suffered in the collision.

The driver of the other vehicle also died. Baines’ estate filed suit only against the driver’s employer, D&D Mechanical Services, and not the driver’s estate. The driver was operating the defendant’s pickup truck in the course and scope of his employment, and the defendant admitted negligence, according to an attorney for Baines, Earl Taylor of Wilson.

Taylor said that the sole beneficiary of Baines’ estate is his 14-year-old daughter, who has been in his custody since she was 3, and that he had lived on Social Security benefits for the past decade.

“At the time of his death, Mr. Baines had $2.52 in his bank account,” Taylor said.

The plaintiff conceded that there were no medical expenses; little, if any, suffering; no loss of net income; and minimal funeral expenses. So, the claims focused rather on statutes allowing damages for the daughter’s loss of, among other things, the companionship, comfort, guidance, protection, and care of her father.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $2 million

Case name: Elbert Randolph Baines, Administrator of the Estate of Johnny Junior Baines v. D&D Mechanical Services, LLC:

Case No.: 2016-CVS-1605

Court: Wilson County Superior Court

Judge: Milton Fitch Jr.

Date of settlement: Aug. 9

Attorney for plaintiff: Earl Taylor of Wilson

Attorney for defendant: Randall Adams of Poyner Spruill in Rocky Mount

17. (tie) Infant brain injury settles for $2M

A first-time mother whose child suffered a “severe and irreversible” brain injury after a delayed Caesarean delivery agreed to settle her obstetrical malpractice claim for $2 million.

Many of the case’s details were withheld pursuant to a confidentiality agreement.

The woman’s attorney, John Hensley Jr. of Asheville, said that the woman had controlled gestational diabetes and was admitted to the hospital after an “abnormal test” indicated potential decreased blood flow to the baby. Following admission, Hensley said, the mother failed to make adequate progress toward delivery, and fetal abnormalities indicated that the baby was not tolerating labor.

After 45 hours in the hospital, the attending obstetrician was asked to consider a c-section delivery, but refused and left the hospital, Hensley said.

Two hours later, according to Hensley, the baby’s heart dropped and would not recover.

“A stat Cesarean Section was called, but by the time the obstetrician returned and accomplished the delivery, the baby had sustained a severe and irreversible brain injury,” Hensley said. “The case settled after expert discovery.”

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $2 million

Injuries alleged: Hypoxic-ischemic brain damage, cerebral palsy

Case name: Withheld

Court: Withheld

Judge: None (settled pre-trial)

Date: Jan. 17

Attorney for plaintiff: John Hensley Jr. of Asheville

Attorney for defendant: Withheld

19. (tie) Hospital fall, misdiagnosis lead to $1.9M settlement

A case in which alleged negligence and a subsequent misdiagnosis caused a 67-year-old woman to become paralyzed settled for $1.9 million.

The woman’s attorney, Steve Gugenheim of Raleigh, withheld many details of the case pursuant to a confidentiality agreement. The settlement was reached during mediation.

According to Gugenheim, the woman, now 71, went to the hospital after falling at home. After being discharged, the following day, she went to another hospital — a defendant in this case — after becoming confused and disoriented. A CT scan revealed a subarachnoid hemorrhage, Gugenheim said, and the woman was admitted to the hospital and placed on fall intervention management, which included the use of a bed alarm.

On her third day in the hospital, Gugenheim said that the woman “was found lying on the floor” and that several staff members put her back into bed. Following the fall, the woman began to develop neurological deficits, including urine retention and leg weakness. Within two days, her left leg was flaccid and she gradually, over the course of the day, lost control of her lower extremities. She was unable to tolerate an MRI, so a hospitalist scheduled one for the following day. As her condition worsened, the hospitalist was notified but told the nursing staff that the MRI would be performed the following morning.

It was, and that MRI revealed a broken DISH fracture and spinal cord compression. According to Gugenheim, that’s when the hospitalist called an orthopaedic surgeon for the first time. The woman underwent emergency surgery after complaining of numbness from the waist down, but Gugenheim said the woman remains paralyzed today.

She sued the hospitalist for failing to timely recognize signs of spinal cord compression, and the hospital for failing to ensure that all appropriate fall risk interventions were in place and functioning. Specifically, she learned during discovery that at the time of her fall, her bed alarm was not turned on.

Since the incidents, the woman has resided in a skilled nursing facility. In addition to her paralysis, the woman suffers from diabetes and chronic kidney disease, Gugenheim said.

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $1.9 million

Injuries alleged: Paralysis

Case name: Withheld

Court: Withheld

Mediator: James Llewellyn of Atlantic Beach

Date: Nov. 13

Attorney for plaintiff: Steve Gugenheim of Raleigh

Attorney for defendant: Withheld

19. (tie) DOT pays $1.9M for splitting land with elevated highway

A wealthy landowner received $1.9 million from the North Carolina Department of Transportation as compensation for a land condemnation action.

The DOT initially offered Raiford Trask Jr. $437,550 for building an elevated highway over the middle of 423 acres that Trask owned in Brunswick County, according to his attorney, Emmett Haywood of Nicholls & Crampton in Raleigh.

Trask is a prominent name in Brunswick and nearby counties, where several landmarks, including two public schools and the drawbridge spanning the Intracoastal Waterway to Wrightsville beach, bear the family’s moniker.  

The elevated highway in question was part of the I-140 bypass project and reduced access to Trask’s vacant land, making it more difficult and expensive to develop, Haywood said.

“If you have one large tract of land you can loop the utilities. We could have developed it with one sewer lift station. Now we’ll have to have two,” she said. “Plus, you’re not going to want to put houses up near this elevated highway.”  

She added that the DOT eventually acknowledged that land adjacent to the highway would have to be set aside for a noise or landscape buffer, and its appraiser increased the original offer to $818,225.

The case finally settled through mediation for $1.9 million, but only after the DOT also agreed to convey 3.2 acres to Trask as part of the deal.

“That was really critical to the settlement to get that additional land,” Haywood said. “It wasn’t of any use to the DOT, but we could use it.”

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $1.9 million, plus conveyance of 3.2 acres of adjacent landlocked parcels

Case name: NCDOT v. Raiford G. Trask Jr., et al.

Court: Brunswick County Superior Court

Case No.: 15-CVS-797

Mediator: Bob Beason of Durham

Date of settlement: Dec. 5

Attorney for plaintiff: John Oates, assistant attorney general in Raleigh

Attorney for defendant: Emmett Haywood of Nicholls & Crampton in Raleigh

21. Developer gets three times DOT’s deposit in land case

A real estate developer that had hoped to convert a 30.3-acre property in Indian Trail into a mixed-used shopping center and office complex has reached a $1.85 million settlement with the North Carolina Department of Transportation after the DOT condemned part of the land for its construction of the Monroe Bypass.

George Autry and Stephanie Hutchins Autry of Cranfill Sumner & Hartzog in Raleigh report that their client, Pinecreek Land Company, owned land adjacent to a high-end residential development it had previously developed. Some of the land was wetland and floodplain slated to be conveyed to the development’s homeowners’ association for open space. The rest was intended to be used as a site for shops and offices that would serve the development, as well as others nearby.

Although the land was zoned for residential use, and the DOT initially valued it as such, Stephanie Hutchins Autry said it was ideally suited to site a large shopping complex given its location abutting the intersection of two major roads.

“It’s a part of the state that’s growing really, really rapidly, and the residential development has really outpaced the commercial development,” she said. “The DOT just looked at it and said, well, it’s zoned residential, so that’s the highest and best use, without really digging into it, and that made a huge difference in value.”

The DOT’s taking cut a swath through the property, after which Pinecreek retained a 12.3-acre tract between its residential development and the bypass that was still suitable for commercial and office use but would not benefit from the more desirable location and road access it had previously had. It also retained a 2.8-acre tract cut off from the development by the bypass whose size could support only a single office or commercial use, rather than a large shopping center.

The DOT appraised the amount owed as just compensation at only $615,525, Stephanie Hutchins Autry said.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $1.85 million

Injuries alleged: Condemnation of 4.78 acres of a 30.3 acre tract

Case name: Department of Transportation Turnpike Authority v. Pinecreek Land Company, LLC

Court: Union County Superior Court

Case No.: 15-CVS-3402

Mediator: Bob Beason of Beason & Ellis in Durham

Date of settlement: June 20

Attorneys for defendant: George Autry and Stephanie Hutchins Autry of Cranfill Sumner & Hartzog in Raleigh

Attorney for plaintiff: Martin McCracken of the N.C. Dept. of Justice in Raleigh

22. Golf course settles flood suit against DOT for $1.8M

The North Carolina Department of Transportation agreed to pay more than $1.8 million to Lane Tree Farms Inc., which alleged that nearby highway construction caused stormwater to flood its golf course and event center in Goldsboro.  

Lane Tree Farms argued that after the DOT began building the US Route 70 Bypass in 2012, there was a “significant increase in the amount and velocity of the stormwater and other runoff coming from ‘upstream’ onto the Lane Farms property,” Brian McMillan, a Greensboro attorney at Brooks Pierce for Lane Farms, wrote in a settlement report.

According to McMillan, Lane Farms argued in an inverse condemnation action that while the bypass was not built on Lane Farms’ property, the highway caused Lane Farms to flood on “numerous” occasions.

Lane Farms was subsequently forced to repair the flood damage and upgrade its stormwater runoff system, McMillan reported. He also alleged that the bypass had decreased Lane Farms’ property value.

During the first of two mediation sessions, the DOT’s engineer estimated that it would cost $283,000 to upgrade the property’s drainage system, while Lane Farms’ engineer said it would take about $800,000, according to McMillan.

At the second session five months later, the DOT had a new estimate of $450,000 to $575,000, due in large part to the bid climate at the time, McMillan said.

He added that the DOT disputed whether flood repair damages were recoverable, but Lane Farms estimated that the costs were more than $700,000.

SETTLEMENT REPORT — INVERSE CONDEMNATION

Amount: $1,831,075

Injuries alleged: Taking without compensation of an easement for accommodating stormwater and other runoff, and proximity damages

Case name: Lane Farms, Inc. v. NC Department of Transportation

Court: Wake County Superior Court

Case No.: 16-CVS-1073

Mediator: Michael Jones of Goldsboro

Date of settlement: Aug. 11

Attorney for plaintiff: Brian McMillan of Brooks Pierce in Greensboro

Attorney for defendant: Erin Scott, assistant attorney general in Raleigh

23. DOT pays restaurateur $1.6M settlement for land taking

The owner of several Sonic fast-food drive-ins has received a more than $1.6 million settlement from the North Carolina Department of Transportation, after the agency tore down his most profitable restaurant in an eminent domain action.

The DOT initially offered $998,800 to United Development Corp. for razing a Sonic in Mebane near the Interstate 40 interchange and taking a portion of the restaurant’s property, according to the restaurateur’s attorney, Jason Campbell of the NC Eminent Domain Law Firm in Durham.

He wrote in a settlement report that United Development’s owner, who worked his way up at Sonic from a cashier, “protested that he couldn’t buy new land and rebulid the Sonic for anything less than $1.5 million. The DOT refused. It relied on an appraiser [Elizabeth Herring of Greensboro] who only does condemnation work for the DOT.”

The NC Eminent Domain Law Firm declined to name United Development’s owner, but he is identified in public records as Enrico Ramirez. He also owns Sonic restaurants in Oklahoma and Texas.

Campbell’s appraiser, Brian Bryant of Cushman & Wakefield in Charlotte, estimated that the entire property was worth $1.8 million, according to Stan Abrams, who works with Campbell.

The DOT agreed at mediation to pay $1,660,000 for the whole parcel, which gives United Development enough money to build a new restaurant, according to Campbell.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $1.66 million

Case name: NC Department of Transportation v. United Development Corp.

Court: Alamance County Superior Court

Case number: 16-CVS-1435

Judge: William Pittman

Date of settlement: May 18

Most helpful expert: Brian Bryant, appraiser at Cushman & Wakefield in Charlotte

Attorney for plaintiff: Richard Graham of Raleigh

Attorney for defendant: Jason Campbell of the NC Eminent Domain Law Firm in Durham

24. (tie)$1.5M settlement in runaway ambulance suit

A $1.5 million settlement was reached in a case involving a man whose legs were crushed while he was trying to free his mother from a gurney attached to a runaway ambulance.

The suit was resolved in a conservative mountain county in North Carolina that has never had a jury verdict greater than $1 million, according to the plaintiff’s attorneys, J. David Stradley of White & Stradley in Raleigh and Ruth Smith of Asheville.

They withheld identifying details about the parties and the case to comply with a confidentiality provision in the settlement agreement. The defendant is a hospital that operates the ambulance service in question.

The 51-year-old plaintiff had called an ambulance for his ill mother and the driver neglected to shift the vehicle into park when he and a coworker arrived. The ambulance was stopped on a steep driveway and its running engine kept the vehicle from rolling backward.

But one of the medics turned off the ambulance in an attempt to reset a feature that lowered the rear of the vehicle to make it easier to load patients. This was something the medics did routinely because the lowering mechanism was defective, Stradley said.

This time, though, the mechanism wasn’t working because the vehicle wasn’t in park. When the medic shut off the engine the ambulance began rolling backward with the plaintiff’s mother strapped to a gurney attached to the rear of the vehicle.

The plaintiff stepped in to save his mother and his legs were crushed between the ambulance and an open door of his parents’ vehicle, which also was parked in the driveway. If the door had not been open the ambulance would have continued down the driveway and over the edge of a ravine, according to Stradley.

“She [the plaintiff’s mother] would have been killed,” he said. “There’s no question about that.”

The plaintiff’s mother was not injured, but the plaintiff’s legs were crushed below his knees. He was flown to a trauma center and had several surgeries to repair his legs. After months of recovery he was able to walk with a cane, but will not be able to return to his construction job, according to Stradley and Smith.

They said the hospital admitted liability, but offered $350,000 to settle before the lawsuit was filed.

“I think there was just a belief that a mountain jury was never going to return a significant verdict,” Stradley said.

After the initial settlement offer, the plaintiff hired an EMS expert who testified that the hospital’s practices and procedures were not on par with industry standards.

The hospital now requires ambulance drivers to engage the parking brake before exiting the vehicle, according to Stradley.

“It was really sort of amazing to me that an ambulance service in a mountainous region would not have had a policy to require people to set the parking brake on a 15,000 to 20,000 pound ambulance,” he said.

SETTLEMENT REPORT — MOTOR VEHICLE NEGLIGENCE

Amount: $1.5 million

Injuries alleged: Bilateral comminuted tibia and fibula fractures

Case name: Withheld

Court: Withheld

Case No.: Withheld

Date of settlement: Oct. 17

Attorneys for plaintiff: J. David Stradley of White & Stradley in Raleigh and Ruth Smith of Asheville

Attorney for defendant: Withheld

24. (tie) Alleged failure to obey stop sign nets $1.5M

Two Raleigh attorneys negotiated a $1.5 million settlement for a client injured in a traffic crash with another driver who allegedly failed to obey a stop sign.

Ben Whitley reported that he and his father, Bob Whitley, represented a 43-year-old man who sustained a broken nose, fractured ankle and kidney damage in the collision. The client had $227,000 in past medical expenses, $123,800 in anticipated future costs and an estimated economic loss of more than $120,300.

The police officer who investigated the crash issued a citation to the other driver, but liability and damages were strongly contested, according to Ben Whitley.  

He said his client recovered the primary liability policy and a portion of the excess liability policies as part of the pre-suit settlement, which included an agreement to keep many details of the case confidential.  

He added that the attorneys for both sides “agreed to an early mediation prior to suit being filed to give both parties a chance to save expenses and to allow the plaintiff to recover money more quickly to aid in his recovery such as providing for additional physical therapy that he was unable to afford due to not having any medical insurance.”

SETTLEMENT REPORT — PERSONAL INJURY

Amount: $1.5 million

Injuries alleged: Broken nose, fractured ankle and kidney damage

Case name: Withheld

Court: Settled pre-suit

Date of settlement: Jan. 16

Attorneys for plaintiff: Ben Whitley and Bob Whitley of the Whitley Law Firm in Raleigh

Attorneys for defendant: Withheld

24 (tie) Charlotte to pay $1.5M in whistleblower suit

According to city officials, Charlotte Fire Department investigator Crystal Eschert was fired because she made insensitive social media posts. Eschert alleged the termination was punishment for raising her concerns about the safety and mismanagement of funding for department buildings.

On May 11, a jury sided with Eschert, awarding her $1.5 million in damages after finding that her firing was retaliatory. It rejected her contention that she was fired because she is a woman.

According to court documents, Eschert was concerned about the conditions of a North Graham Street building being renovated to house her Arson Task Force unit, which was being relocated from Statesville Avenue. Among her concerns were a flooded basement, mold, dirty ducts, potential asbestos-related air quality issues, and work being done without the proper permits.

Eschert was also worried that because the department had spent a significant amount of money to improve, then demolish, the former building, funding would be inadequate to improve the new location, an old manufacturing facility that had been used for storage.

Eschert contacted her father-in-law, Ray Eschert, a man with close local political ties and knowledge regarding OSHA regulations. Ray Eschert helped get a City Council member involved, which didn’t sit well with Crystal Eschert’s supervisors, according to her attorney, Meg Maloney of Charlotte.

About four months later, days after the police shooting of Michael Brown in Ferguson, Missouri, Eschert posted on her personal, private Facebook page that a “white guy” had been shot by police near Ferguson, asking where were President Obama, Eric Holder, Al Sharpton, and Trayvon Martin’s parents.

A week later, Eschert shared a second post, a photo forwarded from Law Enforcement Today, suggesting that the racial divide in America was being worsened by a perceived disparity of White House responses to the deaths of police officers compared to the shooting of a black man by police officers.

Eschert’s supervisors met with her the day of the second post, and she was eventually terminated.

VERDICT REPORT — WHISTLEBLOWER

Amount: $1.5 million

Case name: Eschert v. City of Charlotte

Court: U.S. District Court for the Western District of North Carolina

Judge: Frank Whitney

Case No.: 3:16-CV-00295

Date of verdict: May 11

Attorney for plaintiff: Meg Maloney of Maloney Law & Associates in Charlotte

Attorney for defendant: Sara Lincoln of Lincoln Derr in Charlotte

27. ‘Freak accident’ results in $1.4M settlement with baseball groundskeeper

An unnamed North Carolina municipality agreed to pay a part-time groundskeeper $1.4 million to settle a workers compensation lawsuit stemming from a “freak accident” that left the groundskeeper suffering permanent disabilities.

The 42-year-old groundskeeper, whose name was kept confidential as part of the settlement, was cleaning up outside of a municipal baseball park on Oct. 11, 2011, when a batter warming up on the field lost his grip on a bat. The baseball bat flew across the field toward the groundskeeper before the handle slipped through a chain-link field and hit him on the head, knocking him to the ground. As he was falling, the groundskeeper struck his head on a nearby electrical box.

The incident left the groundskeeper suffering from a traumatic brain injury that severely affected his motor functions, vision and coordination. While his condition has improved somewhat, the groundskeeper continues to require daily care.

The groundskeeper filed a workers’ compensation claim with the municipality. After the case was sent to the North Carolina Industrial Commission, the two sides reached a mediated settlement on Jan. 23.

Kara McIvor of Mike Lewis Attorneys in Winston-Salem, who represented the groundskeeper, said she was hired to represent the groundskeeper after he and his family visited a number of workers’ compensation attorneys. The family found It difficult to find representation because the groundskeeper’s part-time salary was so low that any compensation he received was likely to be far less than the cost of taking the case.

“Using a standard metric for estimating the potential settlement, I can see why it wouldn’t make sense to take the case from a business perspective,” McIvor said. “But I felt so badly for my client and his family. He is so young and this was such a catastrophic freak accident that I couldn’t turn it down.”

SETTLEMENT REPORT — WORKERS’ COMPENSATION

Amount: $1.4 million

Injuries alleged: Traumatic brain injury

Case name: Withheld

Court: North Carolina Industrial Commission

Date of settlement: Jan. 23

Attorney for plaintiff: Kara McIvor of Mike Lewis Attorneys in Winston-Salem

Attorneys for defendant: Withheld

27 (tie) $1.4M settlement in med-mal suit against nursing home

A nursing home in Hamlet agreed to pay $1.4 million to settle a medical malpractice suit alleging that its employees’ missteps resulted in the death of a 61-year-old woman.

Sandra Snipes was admitted to Richmond Pines Healthcare and Rehabilitation Center on April 19, 2011, for nursing and rehabilitation following hip hemiarthroplasty surgery, according to her attorneys, Kyle Nutt and Gary Shipman of Shipman & Wright in Wilmington.

They alleged that Snipes was given 22 extra doses of blood thinner and developed signs of an infection, but her attending physician wasn’t notified until May 2, when she was sent to the emergency room at her family’s request.

She was found to be severely anemic and her hip that had undergone surgery was dislocated and infected. More than 1.5 liters of infected blood had to be removed from her hip along with the hip itself, according to Nutt.

“She barely survived that surgery, but she never walked again,” he said in an interview. He added that Snipes said she was dropped from a lift at the nursing home, which he believed caused her hip to dislocate.

Snipes died about four years later during a bout with pneumonia. Proving that her death was tied to her alleged mistreatment was difficult, Nutt said. But his experts opined that the infection she developed at the nursing home left her bedridden for the years before she death. And they said there was a “strong connection” between being bedridden and pneumonia, according to Nutt.

The court on Oct. 16 entered a $1.4 million judgment against the nursing home based on Snipes’ family’s acceptance of an offer of judgment, Nutt said. He said the family negotiated a confidential settlement with a doctor named in the suit, Fred McQueen Jr..

An attorney for the nursing home, Scott Lewis of Butler Snow in Wilmington, declined an interview request.

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $1.4 million

Injuries alleged: Bleeding, infection, trauma and death

Case name: Laura Clark, Administrator of the Estate of Sandra D. Snipes, and William J. Snipes v. Britthaven, Inc., Principle Long Term Care, Inc., Spruce LTC Group, LLC d/b/a Richmond Pines Healthcare and Rehabilitation Center, and Fred McQueen Jr., M.D.

Court: Richmond County Superior Court

Case No.: 14-CVS-352

Judge: Richard Brown  

Date of settlement: Oct. 16

Attorneys for plaintiff: Kyle Nutt and Gary Shipman of Shipman & Wright in Wilmington

Attorneys for defendant: Scott Lewis and Pamela Carter of Butler Snow in Wilmington for the nursing home

29. Greenville couple receives $1.375 million for taking

A Greenville couple will receive $1.375 million from the N.C. Department of Transportation after the DOT condemned 46 acres of farmland that the couple owned and lived on, severing their 125-acre property into five irregularly shaped parcels.

Brady Wells and Jeremy Hopkins of Cranfill Sumner & Hartzog in Raleigh reported that the DOT condemned land owned by their clients, Robert and Betty Smith, in July 2016 as part of the construction of the Greenville Bypass.

Hopkins said that the farm had been in the family for a long time and that the Smiths were holding onto it because they knew that development in the rapidly-growing city was gradually making its way towards their property. There were no immediate plans to develop the property, Hopkins said, but it was well suited for residential development because it had significant road frontage and was zoned for rural residential use.

“It was somewhat in limbo because of the project,” Hopkins said. “They didn’t know exactly how it was going to impact their property. It’s what I call the cloud of condemnation that hangs over the properties when they’re in limbo due to a pending project.”

Hopkins said that the case had three of what he called the classic elements of damage in an eminent domain case: the taking severed the property into multiple parcels, eliminated direct highway access for some of the parcels, and left the property sitting next to the raised roadbed of the new bypass. All of these effects severely impacted the potential use of the property for residential development, which was the land’s highest and best use, he said.

The DOT originally contended that just compensation for the land was $784,450, but the two sides eventually reached a $1.375 million settlement on Aug. 24, with a consent order issued more recently.

SETTLEMENT REPORT — EMINENT DOMAIN

Amount: $1.375 million

Injuries alleged: Condemnation of approximately 46 acres of a 125-acre tract

Case name: Department of Transportation Turnpike Authority v. Robert M. Smith and Betty P. Smith

Court: Pitt County Superior Court

Case No.: 16-CVS-1633

Mediator: Bob Beason of Beason & Ellis in Durham

Date of settlement: Aug. 24

Attorneys for defendant: Brady Wells and Jeremy Hopkins of Cranfill Sumner & Hartzog in Raleigh

Attorney for plaintiff: Erin Scott of the N.C. Department of Justice in Raleigh

30. Shipwreck on coastal waters spawns $1.225M settlement

An engine surveyor who was badly injured when a pleasure boat ran aground in the Intracoastal Waterway near Atlantic Beach has secured a $1.225 million settlement with the boat’s owner.

Don Evans and Seth Buskirk of Clark, Newton & Evans in Wilmington said that the injuries occurred while their client, Albert Vandermeer, was onboard a used boat being test driven on behalf of a potential buyer. The boat, being driven by a yacht broker hired by the boat’s owner, hit a shoal while traveling at nearly 30 mph, the attorneys say. Vandermeer suffered back fractures, a torn rotator cuff, broken ribs and other injuries as a result of the accident.

The boat’s owner, who was not present for the voyage, argued that he was not liable for any negligence by the broker due to a lack of agency under North Carolina law. But Vandermeer argued that because the accident occurred in navigable waters of the United States, the issue of owner liability was governed by federal admiralty law rather than state law.

Under maritime law, unlike state law, owners are liable for the negligent acts of the operators of their vessels even if they don’t have any real opportunity to control them. A federal judge agreed with Vandermeer that admiralty law applied, a ruling that Evans said was ultimately crucial in driving the boat’s insurers to the settlement table.

SETTLEMENT REPORT — PERSONAL INJURY

Amount: $1.225 million

Injuries alleged: Back fractures, torn rotator cuff, broken ribs

Case name: Vandermeer v. M/V CHARAZZ, Grand Slam Yacht & Boat Sales, LLC, James Hinds, and Wilton Gay, M.D.

Court: U.S. District Court for the Eastern District of North Carolina

Case No.: 4:15-CV-00153

Mediator: U.S. Magistrate Judge Robert Jones

Date of settlement: Oct. 16

Attorneys for plaintiff: Don Evans Jr. and Seth Buskirk of Clark, Newton & Evans in Wilmington

Attorney for defendant: Don Vicini of Charlotte

31. Distracted driving leads to collision, $1.25M settlement

A homeless man struck from behind while riding his bicycle, allegedly by a driver distracted by his ice cream sandwich, agreed to a pretrial settlement totaling $1.25 million.

Michael Levine of the Levine Law Group in Mooresville said that the man, Norman Kelly, was heading “home” — to a tent in the woods — when he was struck by a vehicle driven by David McCraw. Kelly was knocked from his bike and suffered several traumatic injuries, including cervical spine fractures that severely limited the use of his legs, arms and hands. He now uses a powered wheelchair for mobility and requires around-the-clock care, Levine said.

According to Levine, McCraw said during a deposition that he was opening an ice cream sandwich when he struck what he thought was a mailbox. McCraw kept on driving, Levine said, until he had to stop for a flat tire. McCraw called his father and, after the pair changed the tire, drove home “despite seeing emergency vehicles responding to the area of the collision,” Levine said. McCraw returned to the scene later that night, and was charged with reckless driving and hit and run, Levine said.

At the time of the collision, Kelly was being represented by another attorney in Levine’s firm on a disability benefits claim against the Social Security Administration.

Levine enlisted life care planner Cynthia Wilhelm, Ph.D., of Chapel Hill, because of the permanent nature of Kelly’s injuries. According to Levine, Wilhelm anticipated the cost of Kelly’s future care “in the millions of dollars,” but Allstate, McCraw’s insurance carrier, refused to make a settlement offer. Levine said that the defendants believed Kelly to be contributorily negligent because his bike lacked proper lighting. But the witness who dialed 911 reportedly did so after noticing the blinking lights on Kelly’s bike.

“Mr. McCraw couldn’t be bothered to stop at the scene and Allstate couldn’t be bothered to make an actual offer,” Levine said. … “Allstate thought this was just a bum on a bike at night and that he didn’t have a case, but it wasn’t that at all.”

Ultimately, Levine said, the parties agreed at a mediated settlement conference to settle the case upon proof that $1.25 million exhausted the applicable insurance coverage.

SETTLEMENT REPORT — PERSONAL INJURY

Amount: $1.25 million

Case name: None (settled pre-suit)

Mediator: Timothy Patty

Date of settlement: May 17

Most helpful experts: Life care planner Cynthia Wilhelm, Ph.D., of Chapel Hill

Attorneys for plaintiff: Michael Levine and Tom Gooden of the Levine Law Group in Mooresville

Attorneys for defendants: Walter Burton and Cam Bordman of Burton, Sue & Anderson in Greensboro

32. Family reaches $1.19M settlement in Lenoir County

The estate of a 74-year-old man who was killed after his truck was hit by an impaired driver who had crossed over the centerline reached a $1.19 million settlement.

Matthew Sullivan of White & Allen in Kinston reported that Kenneth Rouse Sr. and his adult son, Kenneth Jr., were driving along a two-lane road toward their farming operation in Lenoir County in October 2014. As Kenneth Sr. was turning left at an intersection, the defendant, William Davis, who had been travelling in the same direction behind them, crossed over the median, t-boning the Rouses’ truck on the drivers’ side. On impact, Davis was traveling at such a speed that his truck overrode and climbed on top of the smaller truck, coming to rest on top of it.

Initially, Davis asserted that a sudden medical emergency caused him to lose consciousness. Rouse’s surviving sons heard through talk within their small local community, however, that Davis had had a prior accident in which he claimed he had lost consciousness before running into a tree. Sullivan said he was able to uncover a local police report confirming that the accident had occurred about 18 months earlier.

“It was fortuitous that we got it. Someone just happened to say that, and that prior accident report really was impetus for filing the lawsuit,” Sullivan said.

During discovery, the plaintiffs obtained a toxicology report that showed the presence of a significant amount of impairing substances in Davis’s body at the time of the accident that could have caused him to lose consciousness.

As a result, Kenneth Sr.’s estate reached a $1,060,000 settlement resolving his claims. Kenneth Jr., who required surgery and rehabilitation for his left shoulder and elbow but reported no permanent injury, resolved his claims for $130,000.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $1.19 million

Injuries alleged: Death of driver, injuries to left shoulder and elbow of passenger

Case name: Doris Ann Rouse, Administratrix of the Estate of Kenneth Wilson Rouse and Kenneth Wilson Rouse, Jr. v. William Edwin Davis, III

Court: Lenoir County Superior Court

Case No.: 15-CVS-272

Date of settlement: February 9

Attorney for plaintiff: Matthew Sullivan of White & Allen in Kinston

Attorney for defendants: Stephanie Anderson of Burton, Sue & Anderson in Greensboro

33. ‘Love’ leads to $1.1M heart balm judgment

Some say that love is priceless, but an Iredell County jury on Oct. 11 managed to put a price tag on it, at least for one enamored litigant: $1.1 million.

According to attorneys from the Hatcher Law Group in Charlotte, their confidential client and his wife were married for more than 22 years before the defendant, whose name also was withheld, “tortiously interfered” in the union.  

On their client’s behalf, attorneys Kyle LeBlanc and Christine Melvin filed a claim in Iredell County Superior Court alleging alienation of affection and criminal conversation. According to the the attorneys, the defendant admitted having an affair with their client’s now-former wife, but argued that he was not liable for any damages because he and the plaintiff’s wife were in love.

It is unclear whether the paramour and plaintiff’s wife are still together, but a jury didn’t buy his defense. Rather, they believed the plaintiff’s assertion that he and his wife shared “genuine love and affection” and but for the defendant’s interference, the marriage would have continued.

The $1.1 million award is comprised of compensatory and punitive damages, though the plaintiff’s attorneys say that he has not attempted to collect the award “at this time.”

“I’ve seen many people shy away from pursuing an alienation of affections and criminal conversation suit,” Melvin said. “Historically, the laws surrounding these types of claims have been controversial; however, this should not deter people with valid cases from seeking a resolution.”

VERDICT REPORT — ALIENATION OF AFFECTION/CRIMINAL CONVERSATION

Amount: $1.1 million

Case name: Withheld

Court: Iredell County Superior Court

Case No.: Withheld

Judge: Anna Mills Wagoner

Date of settlement: Oct. 11

Attorneys for plaintiff: Christine M. Melvin and Kyle W. LeBlanc of the Hatcher Law Group in Charlotte

Attorney for defendant: N/A

34. Injury victims reach $1.05M settlement for overbilling

A settlement reached in a class action federal lawsuit on Sept. 25 may give personal injury plaintiffs’ attorneys more power to challenge medical liens filed against their clients.

Attorneys for a class of more than 4,000 personal injury victims secured approval of a $1,050,000 settlement with Key Health, a company that provides personal injury medical lien funding to medical providers. Their clients allege that Key Health committed unfair and deceptive trade practices by overbilling them for services they received.

John Bloss and Fred Berry of Higgins Benjamin in Greensboro represented the class along with David Idol of High Point. The attorneys said that in a typical case, class members received bills from Key Health for MRIs that they had undergone. Key Health would pay the imaging centers for the work, and in exchange the centers would assign Key Health the accounts receivable. (Some clients also received bills for similar medical services like CT scans and x-rays.)

The attorneys said that in such cases, their clients received invoices from Key Health billing them for $1,895. The figure was higher than the “list price” quoted by any of the medical providers for performing the MRI—and in many cases, the attorneys contended, the amount that patients actually owed would be substantially less than the quoted price.

“But regardless of whether the price was as we thought, or the list price … Key Health could never, ever bill $1,895,” Berry said. “So then we felt, and alleged in the complaint, that that was an unfair and deceptive trade practice.”

As an alternative theory, Berry said, the money Key Health paid to medical providers could be viewed as a loan. In that case, the difference between the price of the MRI and the amount Key Health was seeking to collect could be considered interest—and if so, the differences involved would run afoul of North Carolina’s usury laws, Berry contended.

All plaintiffs will get at least $75 from the settlement funds, with typical class members receiving somewhere between $150 and $200 based on how much they paid to Key Health. Those with outstanding invoices will also receive a discount in the amount they owe Key Health.

SETTLEMENT REPORT — CLASS ACTION

Amount: $1.05 million

Injuries alleged: Unfair and deceptive trade practices

Case name: Thompkins, et al., v. Key Health Medical Solutions, Inc.

Court: U.S. District Court for the Middle District of North Carolina

Case No.: 1:12-CV-613

Judge: William Osteen

Date of settlement: Sept. 25

Attorneys for plaintiff: John Bloss and Fred Berry of Higgins Benjamin in Greensboro and David Idol of High Point

Attorneys for defendant: Frank Hirsch, Heather Adams and Matt McGuire of Alston & Bird in Durham

35. $1M settlement for laid-off hospital workers  

More than 140 health care workers who lost their jobs when the Yadkin Valley Hospital closed two years ago reached a more than $1 million settlement in a class action lawsuit alleging violations of the Worker Adjustment and Retraining Notification Act.

Chief US. District Judge William Osteen Jr. of Greensboro approved the settlement in a June 28 order, which also OK’d the plaintiffs’ attorneys’ fees and costs of $330,000 and $13,000, respectively.

An attorney for the plaintiffs, Michael Kornbluth of the Taibi Kornbluth Law Group in Durham said the 142 plaintiffs will each receive a little less than $7,000 on average, depending on what their pay was prior to the hospital’s closure in May 2015.

Six class members opted out of the settlement, according to Osteen’s order approving the $1,007,500 resolution with CAH Acquisition Co., which did business as the Yadkin Valley Community Hospital. Two other related entities also were involved with the settlement: HMC/CAH Consolidated Inc. and Rural Community Hospitals of America, Inc.

The plaintiffs alleged that the hospital violated the WARN Act by closing without giving employees at least 60 days’ prior written notice and by failing to pay them 60 days’ wages and benefits.

The hospital was shuttered in response to failed lease negotiations with Yadkin County. Employees were initially notified Feb. 27, 2015 that the hospital was closing and they would lose their jobs on April 30. But instead of closing on that date, the hospital’s owners agreed to a lease extension with the county until July 31 as they attempted to reach a long-term lease agreement.

The talks apparently crumbled and on May 21 the hospital sent out another notice telling some employees that they were going to be laid off on May 23, according to Osteen’s order granting class certification.

He rejected the hospital’s argument that class certification was inappropriate because some employees had been told to disregard the February notice and therefore the court would have to consider each plaintiff’s claim individually.

Osteen wrote that whether certain employees were told to ignore the first notice was “irrelevant to this court’s inquiry, because that notice ceased be valid when the termination date it specified passed with no termination.”

He added that a “a new, full WARN Act notification must be given if the delay is for more than 60 days, and regardless of the length of postponement, any new notice is required to contain specific information including, most relevantly here, the new termination date.”

SETTLEMENT REPORT — CLASS ACTION

Amount: $1,007,500

Injuries alleged: Violations of the WARN Act

Case name: Carrie Hutson, et al. v. CAH Acquisition Company 10, LLC d/b/a Yadkin Valley Community Hospital, et al.

Court: U.S. District Court

Case number: 15-CV-00742

Judge: William Osteen Jr.

Date of settlement: June 28

Attorneys for plaintiffs: Michael Kornbluth and Andrew henson of Taibi Kornbluth Law Group in Durham and Lee Zachary of Zachary Law Offices in Yadkinville

Attorneys for defendants: John Doyle and William McMahon of Constangy, Brooks, Smith & Prophete in Winston-Salem

36. (tie) $1M settlement reached in pedestrian death

During the second pre-suit mediation of a negligence case involving a man struck and killed by a bus as he was walking into work, all parties agreed to a $1 million settlement.

Most details of the case have been withheld pursuant to a confidentiality agreement, according to Matthew Sullivan of White & Allen in Kinston, an attorney for the plaintiff.

Sullivan said that the 27-year-old man was run over and killed by the bus near a marked crosswalk outside his place of employment. Based on statements from witnesses, the location of the man’s body and the bus, and time and distance analysis, according to Sullivan, there was considerable evidence of negligence and possible gross negligence by the bus driver. Sullivan said that other pre-suit discovery provided evidence of improper training by the bus company.

“Defense focused on the actions of the decedent and the location of the incident, asserting contributory negligence and gross contributory negligence,” Sullivan said.

Sullivan added that the man’s dependents are receiving workers’ compensation benefits expected to amount to $350,000, and that the workers’ compensation lien was resolved by agreement for $45,000.

SETTLEMENT REPORT — NEGLIGENCE

Amount: $1 million

Injuries alleged: Death

Case name: Withheld

Court: N/A

Mediator: Ronald Perkinson of Sanford

Date of settlement: June 20

Attorney for plaintiff: Matthew Sullivan of White & Allen in Kinston

Attorneys for defendant: Withheld

36. (tie) $1M settlement in construction site product liability case
    The makers of a guardrail and a lanyard agreed to pay a $1 million settlement to a 50-year-old man who fell 13 feet while working at a construction site.

Ben Whitley of the Whitley Law Firm in Raleigh said his client, whom he declined to name as part of a confidentiality agreement with the defendants, brought claims for negligence, breach of warranty and unfair and deceptive trade practices against the manufacturers of the guardrail and lanyard. The worker also accused the project’s design-builder of negligence and breach of warranty.

Whitley argued that the lanyard had “corrosive qualities” that prevented its braking mechanism from stopping the worker’s fall. He also said the guardrail’s defective design prevented it from attaching securely to a roof, which caused it to collapse and allowed the worker to fall.

“You had failures of two fall protection [devices] at the same time,” Whitley said. He added that the lanyard has been removed from the market, though he was unsure if the maker decided to pull the product before or after the worker was hurt. He sustained thoracic fractures in his back and a mild-traumatic brain injury, according to Whitley.

“All three groups of defendants denied liability and vehemently argued contributory negligence for the failure of the worker to inspect the lanyard per the manufacturer’s instructions, and failure to follow his employer’s fall protection plan,” Whitley wrote in an email. “Additionally, the Defendants argued that the injured worker’s damages would be severely limited, as he was on social security disability for knee injuries at the time of the fall.”

Court-ordered mediation prior to expert witness depositions was unsuccessful — Whitley said the defendants’ highest settlement offer at the time was $150,000. But less than a month before trial, and after the deposition of the lanyard maker’s fall protection expert, the defendants agreed to the $1 million settlement, according to Whitley.  

Prior to the settlement, his client reached a confidential resolution of his workers’ compensation claim, which he said created a $345,000 claimed lien on the worker’s recovery from the third-party defendants.  

But the worker was able to obtain a voluntary 95-percent reduction of the lien prior to a hearing on his motion to eliminate the lien entirely.

“The adjuster for the workers’ compensation carrier initially made a comment that she believed our client was contributorily negligent and would not be able to recover anything and closed her file. She said that to us in an email,” Whitley said.

He added that the workers’ comp provider did not assist his client in his claims against the third-party defendants, which, when combined with the adjuster’s statements, gave him leverage to argue for a substantial reduction of the lien.

SETTLEMENT REPORT — PRODUCT LIABILITY/CONSTRUCTION INJURY

Amount: $1 million

Injuries alleged: Thoracic fracture and mild-traumatic brain injury

Case name:  Withheld

Mediator: Ron Perkinson of Sanford

Judge: None (settled pre-trial)

Date of settlement: April 25

Attorneys for plaintiff: Ben Whitley of the Whitley Law Firm in Raleigh; Noah Abrams and Melissa Abrams of Abrams & Abrams in Raleigh

Attorney for defendant: Withheld

36. (tie)Truck driver killed, estate settles for $1M

The estate of a truck driver killed after being T-boned by another motorist settled its case for $1 million.

According to Gregory Whitley of MacRae, Perry, MacRae & Whitley in Fayetteville, 46-year-old Darrick Carter on Sept. 22, 2015, was driving a 1985 International truck south on State Road 1831 in Cumberland County, approaching an intersection.

Defendant Sheila Taylor was heading west in a 2011 Chevrolet SUV, approaching the same intersection. According to Whitley, Taylor ran a stop sign and crashed into Carter’s truck. News reports said that the truck flipped on its side, ejecting and killing Carter.

Taylor claims not to have seen the stop signs.

Whitley said that Carter left behind a wife of three years and four adult children, and believes a good settlement was reached based on all the circumstances surrounding the case.

“We were confronted with some serious issues in verifying the decedent’s income and lost wages,” Whitley said. “Thankfully, and in spite of those issues, the defense’s economist generated projected earnings figures not too far off from those our economist projected, so that helped get us in the same ballpark.”

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $1 million

Case name: Bradford Scott Hancox, Administrator of the Estate of Darrick D. Carter, v. Sheila E. Taylor and Jason M. Taylor

Court: Cumberland County Superior Court

Case No. 16-CVS-2910

Mediator: Sam Carlisle

Date of settlement: Jan. 19

Attorneys for plaintiff: James MacRae Jr. and Gregory T. Whitley of MacRae Perry MacRae & Whitley in Fayetteville, and Reed Noble of the Noble Law Firm in Chapel Hill

Attorney for defendant: O. Drew Grice Jr. of Walker Allen in Goldsboro