North Carolina’s Top Verdicts & Settlements 2018

As always, our Top Verdicts & Settlements list comes with the caveat that these are the top verdicts and settlements that were reported to us in time for this issue. We make every effort to thoroughly report every substantial jury verdict awarded in the state, but each year there are undoubtedly many settlements that would have qualified for the list but are never reported to us due to confidentiality agreements.

Some types of cases, such as multi-state class action lawsuits that happened to be sited in North Carolina, aren’t eligible for inclusion on our list. For reasons of space considerations, the top reported defense verdicts and eminent domain verdicts and settlements will be reported in our Feb. 25 issue.

Lawyers Weekly also decided to combine the hog farm verdicts into one entry in our list in order to permit a greater diversity of cases to be included in the list.

David Donovan

1. Hog farm verdicts kick off with $50.75M verdict

A massive federal jury verdict is a poor sign for North Carolina’s porcine.

In a potentially groundbreaking decision, a jury in the state’s Eastern District has awarded $50.75 million in damages to 10 residents living near an industrial hog farm in Bladen County to compensate them for the nasty odors produced by the farm’s porkers.

The local residents had filed a private nuisance lawsuit against Murphy-Brown, a subsidiary of Smithfield Foods, alleging that the farm’s stench interfered with their enjoyment of their property. On April 26, the jury awarded the plaintiffs $750,000 in actual damages, and $50 million in punitive damages.

The verdict is the first ever of its kind against North Carolina’s hog farming industry, and could lay down a potentially significant marker for other similar lawsuits that are currently pending against pork producers in the state.

Previous attempts to sue hog farmers fizzled out in the 1980s after North Carolina passed a “right to farm” law that generally prevents nuisance lawsuits against agricultural operations. But the law permits such lawsuits when the nuisance results from the negligent or improper operation of a farm. The plaintiffs had alleged that Murphy-Brown had failed to update its operations to employ modern best practices to minimize its effect on the surrounding community and that it could have taken reasonable steps to reduce the stink.

Last year, in response to the lawsuits, the state’s General Assembly overrode a veto by Gov. Roy Cooper to amend the right-to-farm law to cap damage awards in nuisance lawsuits at the market value of the property affected. An effort to make the change retroactive foundered after concerns were raised about whether such a change would be constitutional.

The dispute got ugly at times. The suits were filed in August 2014, shortly after Smithfield was purchased by WH Group, a Chinese corporation. The original complaints made numerous references to the Chinese government, its ruling Communist Party, and its military, the People’s Liberation Army. Judge Earl Britt ordered the plaintiffs to edit out those references, finding that they were “highly prejudicial to defendant and have little to no bearing on plaintiffs’ underlying claims.”

In April, Britt denied a request by the defendants to have jurors visit the farm in question to smell the odors for themselves, saying that a quick visit to the farm wouldn’t give jurors a true feel for the conditions. (The plaintiffs contended that the company had just undertaken an unprecedented effort to remove millions of gallons of waste from the farm, possibly in direct response to the lawsuit.)

Mona Lisa Wallace and John Hughes of Wallace and Graham in Salisbury represented the plaintiffs, along with attorneys from two law firms based in Texas.

“We are pleased with the jury’s verdict,” Wallace said in a written statement emailed to Lawyers Weekly. “These cases are about North Carolina family property rights and a clean environment.”

Attorneys at McGuireWoods represented Murphy-Brown, with Mark Anderson of Raleigh serving as lead in-state counsel. Anderson said that the company was disappointed by the verdict and believes that there are some very significant issues which will be addressed on appeal.

“There are 10 additional cases already set. This is a marathon, not a sprint,” Anderson said. “The future of agriculture in North Carolina hangs in the balance.”

The punitive damages were later reduced due to the state’s cap on punitive damages. Since this verdict, the plaintiffs have prevailed in three other cases, including one in which the jury awarded another group of plaintiffs $473.5 million, which was later reduced to $94 million.

VERDICT REPORT – PRIVATE NUISANCE

Amount: $50.75 million

Injuries alleged: Interference with enjoyment of property

Case name: McKiver et. al. v. Murphy-Brown, LLC

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

Case number: 7:14-cv-00180

Judge: Earl Britt

Date of verdict: April 26, 2018

Special damages: $50 million in punitive damages [later reduced by court order]

Attorneys for plaintiff: Mona Lisa Wallace and John Hughes of Wallace and Graham in Salisbury; Eric Manchin, Michael Kaeske and Lynn Bradshaw of Kaeske Law Firm in Austin, Texas; and Lisa Blue Baron of Baron and Blue in Dallas, Texas

Attorneys for defendant: Mark Anderson and Matt Mathews of McGuireWoods in Raleigh and Richmond, respectively (lead attorneys)

2. Jury awards $32.7M to wife of mesothelioma victim

The family of a former factory worker who they say suffered horrifically after developing mesothelioma has won a jury verdict against an insulation company worth $32.7 million.

Franklin Delano Finch worked at a Firestone tire factory for 20 years, from 1975 through 1995. He installed molds in tire equipment, said Bill Graham of Wallace & Graham in Salisbury, who represented Finch’s widow along with Jessica Dean of Dean Omar & Branham in Dallas, Texas.

Finch later developed mesothelioma. Covil Corp., a now-defunct pipe insulation company, installed asbestos-laden insulation in the plant, even though mesothelioma was already widely known to be caused by asbestos, and this caused Finch’s illness, Graham said.

Finch died in 2017, but filed a lawsuit against Covil and other defendants, who have settled the case, before he died.

Graham argued that Covil installed the insulation “without regard to the safety of the workers in the plant,” Graham said. “And the jury agreed with all that.”

The jury handed down the verdict on Oct. 19, 2018.

Graham said evidence showed that Covil sold asbestos-laden insulation to Firestone into the late 1970s and “this lack of morality continued on into the trial.”

Graham said that the company’s owner testified that it stopped selling asbestos insulation in 1973, but invoices submitted to Firestone contradicted that claim.

“Covil refuses to own up to its mistakes from the past, and Mr. Finch’s family – a devoted wife and three loving children – is one of many families who has suffered because of it,” Graham said.

The defense argued that there was no concrete evidence that Finch was directly exposed to Covil insulation because the Firestone plant was so large and the amount of insulation the Covil sold to the plant was small in relation to the plant’s size.

Finch was heavily involved in the maintenance of presses that contained asbestos gasket. His  primary job at Firestone involved working directly with asbestos supplied by another company, so it was less likely that Covil’s product was the cause of his cancer, the defense argued, according to Graham.

VERDICT REPORT – ASBESTOS LITIGATION

Amount: $32.7 million

Injuries alleged: Death from mesothelioma

Case name: Finch, et al v. BASF Catalysts LLC et al

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

Case No.: 1:16-cv-01077

Judge: Catherine Eagles

Date of verdict: Oct. 19, 2018

Attorneys for plaintiff: Bill Graham of Wallace & Graham in Salisbury and Jessica Dean of Dean Omar & Branham in Dallas, Texas

Attorneys for defendant: William Silverman and Mark Wall of Wall Templeton in Raleigh and Charleston, South Carolina, respectively

3. Jury awards $13M in high-speed rear-ender

A Robeson County jury has awarded a $13 million verdict to the family of a man who was killed by a tractor-trailer driver who plowed into the back of his pickup truck at full speed in a 2015 crash. The jury also awarded $4 million to another victim who was severely injured in the wreck. (See No. 11 for that verdict report summary.)

Fayetteville attorney Wade Byrd reports that John Bonnabel, the deceased, was a mechanic who was driving behind a malfunctioning bobtail trailer as it limped back to the repair shop. Byrd said that both Bonnabel and Keith Pate, who was driving the bobtail, were traveling between 20 and 30 mph with their flashers on down a flat, straight stretch of I-74, in clear weather, with over a mile of visibility.

An 18-wheeler coming up behind them failed to slow down or take any evasive action before it rammed into the back of Bonnabel’s truck at a speed of about 69 mph. The truck was launched from the highway and rolled several times down an embankment into a tree, killing Bonnabel immediately. The tractor-trailer continued on, slamming into the back of the bobtail. Pate suffered a permanent brain injury as a result of the collision.

A three-part trial began on April 16 with a liability phase. After the jury found on May 2 that the defendant driver and his company were liable for the wreck, separate damages trials were held, first for Bonnabel and then for Pate. Byrd said that for each phase of the trial, the jury was out for only about 30 minutes before returning with its verdict. He added that the damages phases were split because he didn’t feel that it would be fair to either client to combine them.

Bonnabel, a 64-year-old grandfather from Raeford, is survived by his wife and three adult children.

“The family was just a wonderful, very close-knit, family, and so when I presented the argument to the jury I divided it among the heirs and said, here’s what each heir is entitled to recover, and it seemed like a reasonable verdict to me,” Byrd said.

Byrd said that the discovery phase of the litigation did not make clear why the driver failed to slow down or take any evasive action before the crash.

“It was pretty inexplicable. That’s a quote from the safety director of the defendant company, actually. I asked him, how did this happen, and he said it’s inexplicable,” Byrd said. “What you have to assume is the guy just went to sleep.”

The driver of the tractor-trailer died a few months after the crash. Byrd said that the cause of death was cirrhosis of the liver.

VERDICT REPORT – AUTOMOBILE ACCIDENT

Amounts: $13 million

Injuries alleged: Death

Case name: Emily Bonnabel Windmiller, Administratrix of the Estate of John Van Bonnabel v. Harry B. Crow, Jr, Public Administrator of the Estate of Wilbert Lemar Tillman, and Darling Ingredients, Inc., D/B/A Dar Pro Solutions

Court: Robeson County Superior Court

Case number: 16 CVS 01929

Judge: Beecher Gray

Date of verdict: May 4, 2018

Attorneys for plaintiff: Wade Byrd of Fayetteville and Brett Tishler of White and Williams in Philadelphia, Pennsylvania

Attorneys for defendants: Steve Coles and Erin Young of Hall Booth Smith in Charlotte

4. $12.3M settles Kernersville class-action sewer case

More than 10,000 sewer customers in Kernersville will receive $12.3 million in refunds and interest for excess charges they paid from 2012 through 2016, the plaintiffs’ attorneys report.

According to a media release by the attorneys, the town of Kernersville and the City/County Utilities Commission overcharged customers by failing to follow a 2011 agreement requiring Kernersville sewer rates to be reduced on June 30, 2012.

The defendants contested the merits of the case, but agreed to mediation after Superior Court Judge Edwin Wilson Jr. found them liable for the overcharges, the statement said. The settlement, agreed to in March 2018, was unanimously approved by the Kernersville Board of Alderman and the utilities commission.

One of the plaintiff’s attorneys, H. Brent Helms of Robinson & Lawing in Winston-Salem, called the settlement a “really good result” for a group of plaintiffs who have been concerned with their sewer bills for years.

“Once the court ruled that the defendants had overcharged the sewer users, I think Kernersville and the CCUC saw that it was in the public’s best interest to settle the lawsuit and refund the overcharges,” Helms wrote in a statement.

According to the media release, class members should receive a full refund of their excess sewer charges, plus approximately 9 percent interest. More than 75 percent of those, attorneys say, will receive payments between $100 and $2,000.

SETTLEMENT REPORT — BREACH OF CONTRACT

Amount: $12.3 million

Injuries alleged: Excess charges for sewer bills

Case name: Fasano v. Town of Kernersville and the Winston-Salem/Forsyth County City/County Utilities Commission

Case No.: 16 CVS 2801

Court: Forsyth County Superior Court

Mediator: Jonathan Harkavay of Patterson Harkavay in Greensboro

Date of settlement: July 27, 2018

Attorneys for plaintiff: H. Brent Helms and Scott Templeton of Robinson & Lawing in Winston-Salem, and Alan Duncan and Stephen Russell Jr. of Mullins Duncan Harrell & Russell in Greensboro

Attorneys for defendant: John Wolfe III of Kernersville and Jodi Hildebran of Allman Spry Davis Leggett & Crumpler in Winston-Salem

5. Boy’s carbon monoxide poisoning death spurs $12M settlement

When staff at a hotel in Boone “upgraded” a mother and her 11-year-old son to Room 225, they never mentioned that a couple had died in that same room a few weeks earlier, according to a lawsuit that has settled for $12 million.

Nor did employees at Best Western Plus Blue Ridge Plaza Hotel tell Jeannie Williams and her son, Jeffrey, that the parents of middle school-aged girls had abruptly canceled a sleepover birthday pool party and fled a room directly above Room 225  after the partygoers began simultaneously experiencing headaches and nausea, according to the suit.

While Jeffrey was lying on his hotel bed, his mother began to feel ill. She would later recall that she’d thought about going to get her cell phone to call for help, but then she lost consciousness on the bathroom floor. She was found 15 hours later and rushed to the hospital. Jeffrey was still in bed, dead.

Beneath Room 225, an improperly installed swimming pool heater was spewing lethal carbon monoxide fumes from a faulty ventilation system that had been ignored — despite obvious warning signs — for about two years before Jeffrey’s death in June 2013, said attorneys for his family, Robert Marcus and C. Bailey King of Smith Moore Leatherwood in Charlotte.

Jack Riordan of Smith Moore Leatherwood in Greenville, South Carolina, and Chad Poteat of the Poteat Law Firm in Columbia, South Carolina, also represent the Williams family.

Jeannie Williams, who lives in Rock Hill, South Carolina, continues to grapple with “severe physical, mental and emotional injuries” as a result of her nightmarish stay at the Blue Ridge Plaza Hotel, according to her complaint.  

The suit named a long list of defendants, including Arizona-based Best Western International Inc., the companies that managed the daily operations of the Blue Ridge Plaza, and several gas companies and contractors that came into contact with the deadly pool heater but allegedly failed to remedy the situation.

“Any time you have that many parties on the other side and their respective insurance companies it makes for a much more complicated situation to get the case resolved,” Marcus said.

He added that all the various defendants “wanted to blame one another for their failures. There were a lot of things that appeared to have gone wrong and a lot of the defenses being asserted was that it was the other defendants’ fault.”

Best Western released a one-line statement saying that it “denies liability for these matters, but its heartfelt thoughts and prayers are with the family and friends of those affected.”

Attempts to resolve the case through mediation were “very unproductive” and little progress was made in reaching a settlement until the court was poised to hear motions for summary judgment, Marcus and King said.

Coming up with a settlement number was difficult, King said. Marcus added that they considered other verdicts and settlements as potential comparisons, but were unable to find “anything like this case.”

“We felt like we were in uncharted territory as far as valuation was concerned,” he said. “We spent a fair amount of time doing jury research to find a fair valuation based on the feedback we received.”

In response to the tragedy, North Carolina enacted a law requiring hotels to have carbon monoxide detectors.

SETTLEMENT REPORT – NEGLIGENCE

Amount: $12 million

Injuries alleged: Death

Case name: Jeannie Williams v. Best Western International Inc., et al

Court: Watauga County Superior Court

Case No.: 16 CVS 264

Mediators: Gary Hemric of James McElroy & Diehl in Charlotte and Marty White of Johnston, Allison & Hord in Charlotte

Date of settlement: Jan. 23, 2018

Attorneys for plaintiff: Robert Marcus and C. Bailey King of Smith Moore Leatherwood in Charlotte; Jack Riordan of Smith Moore Leatherwood in Greenville, South Carolina; and Chad Poteat of the Poteat Law Firm in Columbia, South Carolina

Attorneys for defendants: Paul Culpepper of Hickory; Todd King of Charlotte; Steven Weaver of Greensboro; Ike Northup of Asheville; Jeff Bolster of Charlotte; and Bill Lipscomb of Wilkesboro

6. OBX power outage class action settles for $10.35M

Businesses that were devastated by the nine-day power outage that plunged the Outer Banks into darkness last summer will be able to collect restitution in time for this year’s tourist season after a federal judge gave preliminary approval to a $10.35 million class action settlement.

The law firms of Whitfield Bryson & Mason in Raleigh, Zaytoun Law Firm in Raleigh, and Wallace & Graham in Salisbury served as lead counsel for the class, which consisted of more than 1,400 businesses and 4,100 residents and property owners. The settlement agreement earmarks $8.1 million for businesses that were affected by the power outage, with the rest reserved for residents, renters and vacationers.

The defendant, PCL Construction, had received a contract to replace the Herbert C. Bonner Bridge, the only point of road access connecting the Outer Banks islands to the rest of the state. On July 27, 2017 its workers accidentally drove a steel casing through underground power cables near the south end of the bridge, severing the cables and cutting the islands’ power at the height of the tourist season. Gov. Roy Cooper declared a state of emergency and mandatory evacuations were issued.

Dan Bryson of Whitfield Bryson & Mason said that the calamitous effects on local businesses impacted “every type of business you could think of,” from art galleries to ice cream parlors, and lasted much longer than the nine days that the island was without power.

“For these businesses it was devastating because they depend on this very short period of time to get the money that’s going to sustain them for the entire year,” Bryson said. “People who were on the island left, and people who had planned to come started making alternative arrangements. Even though the power was only off for nine days, it had a residual impact. It took a long time for the business to come back.”

The six separate class action lawsuits filed against PCL were consolidated into a single case. Liability was not a major issue—PCL’s contract provided that it owed a duty to prevent foreseeable harm that could occur if it damaged the power cables that supply the islands with electricity—so a three-day mediation focused on the appropriate level of damages.

To show the full extent of the economic loss, the plaintiffs’ attorneys hired an economist to create an analysis comparing business in 2017 with business in the previous season. Because many small businesses may not be able to fully document their individual losses, class members can receive up to $2,500 in stipulated damages by showing that they were a viable business.

U.S. District Judge James Dever gave the agreement preliminary approval on May 2. Ordinarily, plaintiffs in a class action lawsuit cannot start actually collecting payment until a settlement has received final approval, but under the deal’s terms, plaintiffs can begin collecting money right away so they can be ready for the season.

After all claims are processed, class members will be eligible to receive as much as an extra 20 percent of their recovery to compensate them for non-economic damages. Any settlement funds remaining after those damages are paid out can be spent on remedial efforts to promote tourism in the Outer Banks.

Rod Pettey, David Fothergill and Alex Couch of Yates, McLamb & Weyher in Raleigh represented PCL Construction. Pettey said that he was pleased that the court had provided preliminary approval for the settlement but declined to comment further.

SETTLEMENT REPORT – CLASS ACTION

Amount: $10.35 million

Injuries alleged: Economic loss due to negligence

Case name: In re: Outer Banks Power Outage Litigation

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

Case number: 4:17-cv-141

Judge: James Dever

Date of settlement: May 2, 2018

Lead counsel for the class: Whitfield Bryson & Mason in Raleigh, Zaytoun Law Firm in Raleigh and Wallace & Graham in Salisbury

Attorneys for defendant: Rod Pettey, David Fothergill and Alex Couch of Yates, McLamb & Weyher in Raleigh

7. One expensive relationship: $8.8M for alienation of affection

In a case that made national news, a Durham judge has ordered a Texas man to pay $8.8 million to his lover’s ex-husband.

Keith King, owner of King BMX Stunt Show, says Francisco Huizar ruined his marriage by sleeping with his then-wife, Danielle. Danielle reportedly met Huizar, a marketing tour manager, in August 2015 at a BMX show in New York. Later that month, Keith said, he found flirtatious text messages from Huizar on Danielle’s phone. He called Huizar and told him to leave Danielle alone, and that she was a married woman.

But according to King’s attorney, N. Joanne Foil of Durham, the extramarital relationship did not end. Once, Huizar joined Danielle for what Keith thought was a “mommy-only” spa weekend, Foil said. Another time, she said, Huizar met Danielle at the beach where the Kings were vacationing as a family.

In September 2016, King had an attorney mail a letter to Huizar in Texas warning him that if he continued his relationship with Danielle, King would pursue an alienation of affection claim. In January 2017, Danielle and Huizar rented an apartment together.

Before Huizar came into the picture, King says, he and Danielle were happily married.

“He thought he was in heaven—he married late and thought this was everything he ever dreamed of,” Foil said. “If you look at [Danielle’s] social media, all through the marriage, it was all what a wonderful husband he was.”

Danielle King told a different story, calling the marriage an unhappy one. According to her attorney, Cheri Patrick of Durham, Keith King made his wife work for the BMX company without pay; insisted that she dye her hair platinum blonde and wear high heels and bikinis; “obsessed” about bringing another woman into their sex life; and often snooped through her phone and tracked her whereabouts.

“It was our contention that this marriage was in trouble, and apparently Mr. King was too self-absorbed to realize it,” Patrick said. “If he was damaged by the demise of the marriage, the majority of that damage is a result of Mr. King’s actions, not Mr. Huizar’s.”

Whatever the truth, the couple was still lawfully married when Huizar and Danielle King began their own relationship. As such, under the laws of North Carolina—one of the few states that recognizes “heart balm” laws—Superior Court Judge Orlando Hudson slapped Huizar with the $8.8 million judgment, including $6.6 million in punitive damages.

VERDICT REPORT – ALIENATION OF AFFECTION/CRIMINAL CONVERSATION

Amount: $8.8 million

Case name: Keith King v. Francisco Huizar III

Court: Durham County Superior Court

Case No.: 17 CVS 2772

Judge: Orlando Hudson

Date of verdict: July 26, 2018

Special damages: $2.2 million in compensatory damages, $6.6 million in punitive

Attorneys for plaintiff: N. Joanne Foil and Dorothy O’Neill of Foil Law Offices in Durham

Attorney for defendant: Cheri Patrick of Durham

8. An $8.6M settlement in ex-student’s wrong-way DWI crash

Several families have reached an $8.6 million settlement with a former college student who killed two adults and a child while driving into oncoming traffic on Interstate 85 after binge drinking and smoking marijuana, attorneys for the plaintiffs report.

The settlement includes the driver, his fraternity, several frat brothers, and two bars that allegedly served the student alcohol before the crash. In total, 19 defendants were named in the case and all but one—an uninsured fraternity brother of the driver—were involved in the May 2018 settlement, said David Kirby of Edwards Kirby in Raleigh, which represented the plaintiff families.

The driver at the center of the settlement had been drinking beer and liquor and smoking pot for 15 to 16 hours before the crash, which he did not remember. He was 20 at the time, but had gotten alcohol from his frat brothers and used a fake ID to drink at the two bars named in the suit, according to Kirby.

“The greatest challenge of all was the causal connection between that activity and what occurred at 3 o’clock in the morning, when this wreck took place,” Kirby said.

Witness testimony coupled with other evidence, including surveillance video and the driver’s tab from one of the bars, showed that the driver had been “highly intoxicated” long before he drove, Kirby added. He said the driver admitted that he blacked out prior to the crash.

One of the driver’s frat brothers had tried to stop him from getting behind the wheel and a scuffle ensued—the driver pushed his brother down and drove away, Kirby said: “Nobody had any idea where he was driving and he really did not recall.”

In the wake of the crash, the same brother who’d tried to stop the driver from getting behind the wheel was named as a defendant in the wrongful death suit, because he’d bought the young man alcohol at one of defendant bars using a fake ID, Kirby said.

The settlement agreement includes a confidentiality provision that kept Kirby from identifying the parties. But the triple-fatal crash at the center of the case and the subsequent trial of the driver, Chandler Michael Kania, an ex-UNC student and member of the Delta chapter of Sigma Phi Epsilon, generated statewide media coverage.

Kania is serving a 16-year sentence for three counts of involuntary manslaughter, misdemeanor reckless driving and DWI in connection with the 2015 crash that killed Darlene McGee, Felecia Harris King and King’s 6-year-old granddaughter. King’s 9-year-old daughter was seriously injured in the crash, according to The Herald-Sun.

SETTLEMENT REPORT—AUTOMOBILE ACCIDENT

Amount: $8.62 million

Injuries alleged: Multiple injuries including three deaths

Case name: Withheld

Court: Withheld

Date of settlement: May 2018

Attorneys for plaintiffs: David Kirby and Bill Bystrynski of Edwards Kirby in Raleigh, Charles Monnett of Charles Monnett and Associates in Charlotte, T. Shawn Howard of Maginnis Law in Raleigh, Marcel McCrea of Phillips and McCrea in Charlotte, and Ryan Oxendine and Jim Barnes of Oxendine Barnes and Associates in Raleigh

Attorneys for defendants: Withheld

9. $6M settlement for family of teen electrocuted in pool

The family of a teenage lifeguard who was electrocuted when she entered a swimming pool has confidentially settled a wrongful death lawsuit against multiple defendants for $6 million, the family’s attorneys reported.

The 17-year-old was an experienced lifeguard, and her employer assigned her to a neighborhood pool where she had never worked before, said David Kirby and Bill Bystrynski of Edwards Kirby in Raleigh and Adam Neijna, also of Raleigh, who represented her family.

She arrived early to clean the pool following a storm the day before. She got into the pool, apparently to clear some debris, and was electrocuted, the attorneys said. The official cause of death was electrocution and terminal immersion in water. She floated in the pool for hours until another lifeguard arrived and discovered her body.

The attorneys said that a short in the pool pump motor and improper wiring electrified the pool’s water. A ground wire leading to the breaker box, which should have shut off power once the short in the motor occurred, had deteriorated, broken, and lost connectivity, the attorneys said.

Moreover, the wiring should have been copper and placed in a conduit, according to building codes. Instead, it was made of aluminum and buried in the ground without being placed in a conduit.

The family contended that an electrical company named as one of the defendants should have known that the aluminum wiring system, which had been there for 38 years, violated code.

“This was a complicated case to determine exactly what caused this tragedy,” Kirby said. “It took a perfect storm of negligence from several defendants combining to cause this young girl’s death.”

Kirby said that it was determined that the teen was conscious and was aware she was drowning but was unable to move her muscles.

The attorneys called the teen “an exceptional student known for her writing ability.” Her mother published a book of her writings posthumously, and the family established two writing scholarships in her name.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $6 million

Injuries alleged: Death

Case name: Withheld

Court: Withheld

Date of settlement: June 2018

Attorneys for plaintiffs: David Kirby and Bill Bystrynski of Edwards Kirby in Raleigh and Adam Neijna in Raleigh

Attorneys for defendants: Withheld

10. Texting and driving leads to $4.5M verdict

A Durham County jury has awarded $4.5 million to the family of a bicyclist killed by a distracted driver, the family’s attorney reported.

Eugene Rotberg, 66, was riding his bike on N.C. 98 in Durham County On May 10, 2016, when the driver, Russell Rutledge, drifted onto the shoulder and hit him from behind, said Ann Groninger of Copeley, Johnson & Groninger in Durham.

Rutledge, the owner of a commercial dooring company, was on his way from a business meeting in Garner to meet a colleague in Durham. Records showed that he was using his phone to text, email, and make phone calls, Groninger said.

Rotberg suffered several broken bones and died from trauma, Groninger said. Rutledge pleaded guilty to misdemeanor death by motor vehicle in May 2017. He was sentenced to 75 days in jail, but had work release six days per week.

The jury returned its verdict Nov. 6, 2018 after a trial that lasted two weeks and two days, and about two and a half hours of deliberation. Rutledge did not admit liability until he was on the witness stand, Groninger said.

Rutledge was so distracted that he initially did not know exactly where the collision occurred, and it took first responders 30 minutes to find Rotberg’s body, Groninger said.

“He knew that he hit something,” Groninger said. “When he called 911, he said, ‘I hit a motor-” and then he cut himself off and said ‘a bicycle.’ What is undisputed is that when he went to show the first responders where he hit him, he showed them the wrong area. Everyone agrees that he didn’t know where he hit him.”

SETTLEMENT REPORT — AUTOMOBILE ACCIDENT

Amount: $4.5 million

Injuries alleged: Death

Case name: Estate of Eugene Rotberg v. Russell Rutledge and Rutledge Commercial

Court: Durham County Superior Court

Case No: 16 CVS 4138

Judge: James Hardin

Date of verdict: Nov. 6, 2018

Attorneys for plaintiff: Ann Groninger and Valerie Johnson of Copeley, Johnson & Groninger in Durham

Attorneys for defendant: George Simpson and Caroline Stutts of Simpson Law in Raleigh

11. Jury awards $4M in high-speed rear-ender

(For accompanying story, please see 3. “Jury awards $13M in high-speed rear-ender”.)

VERDICT REPORT – PERSONAL INJURY

Amount: $4 million

Injuries alleged: Permanent injury, traumatic brain injury, PTSD, decreased earning capacity and substantial medical expenses

Case name: Keith Haywood Pate v. Harry B. Crow, Jr, Public Administrator of the Estate of Wilbert Lemar Tillman and Darling Ingredients, Inc., D/B/A Dar Pro Solutions

Court: Robeson County Superior Court

Case number: 16 CVS 01811

Judge: Beecher Gray

Date of verdict: May 9, 2018

Attorneys for plaintiff: Wade Byrd of Fayetteville and Brett Tishler of White and Williams in Philadelphia, Pennsylvania

Attorneys for defendants: Steve Coles and Erin Young of Hall Booth Smith in Charlotte

12. Worker buried alive, widow wins $3.85M verdict

A Union County jury has awarded nearly $4 million in compensatory damages to the widow of a construction worker who was buried alive, prompting a confidential settlement in the case before the punitive damages stage of the trial began.

Charlotte lawyers Jon Moore of Brown, Moore & Associates and Sam McGee of Tin Fulton Walker & Owen represented the widow of Kirk Mitcham, who was killed after being lowered on the bucket of an excavator into a 12-foot-deep trench so he could locate a sewer pipe.

When Mitcham, a 46-year-old with a son, two granddaughters and two stepchildren, stepped off the bucket, a wall of the trench collapsed and crushed him.

Moore and McGee argued that the general contractor, Bonterra Builders, had knowingly hired an unqualified subcontractor to perform “inherently dangerous” work and left the job site when Mitcham and his fellow workers began digging the trench. Mitcham worked for the subcontractor, which specializes in grading work.

Bonterra’s attorneys at Baucom, Claytor, Benton, Morgan & Wood in Charlotte did not respond to interview requests. They contended that Bonterra had no reason to believe that the subcontractor would dig such a deep trench, according to Moore and McGee.

The federal Occupational Safety and Health Administration took no action against Bonterra, but the agency fined the grading subcontractor after finding that the trench was not dug correctly, Moore and McGee said.

“The big challenge was our recognition of the likelihood of a contributory negligence verdict,” Moore added. “So trying to get the jury to gross negligence was what we looked at as the primary challenge.”

And they succeeded in convincing jurors that Bonterra was grossly negligent. The jury awarded Mitcham’s widow $3.85 million in compensatory damages on March 7. Prior to trial, Bonterra had placed on the table an offer of judgment for $175,000. And before closing arguments on damages, Bonterra offered $1.5 million to settle, according to Moore and McGee.

VERDICT REPORT – WRONGFUL DEATH

Amount: $3.85 million (case later settled for confidential amount)

Injuries alleged: Death

Case name: Estate of James Kirk Mitcham v. BB Carolina Holdings, LLC

Court: Union County Superior Court

Case No.: 16 CVS 367

Judge: Jeff Carpenter

Date of verdict: March 7, 2018

Demand: $1.9 million (at mediation)

Highest offers: $175,000 (offer of judgment before trial), $1.5 million (before closing argument on damages)

Attorneys for plaintiff: John Moore of Brown, Moore & Associates in Charlotte and Sam McGee of Tin Fulton Walker & Owen in Charlotte

Attorneys for defendant: Brian Wolfe and Clay Campbell of Baucom, Claytor, Benton, Morgan & Wood in Charlotte

13 (tie). Family of electrocuted deaf-mute teen settles lawsuit for $3.5M

A North Carolina family has reached a $3.5 million settlement with a power provider after a deaf and incompetent teen lost his hands and the use of his legs when he shocked himself with a voltage regulator in an attempt to cure his deafness.  

The teen apparently got the idea from a scene in an action movie, “Crank: High Voltage,” which was his favorite movie, said David Kirby of Edwards Kirby in Raleigh, who called the incident “bizarre.”

The 18-year-old “suffered horrific injuries, including the loss of both hands, partial loss of his arms, and paraplegia,” Kirby said.

Kirby and Bill Bystrynski of Edwards Kirby in Raleigh and Wade Byrd and Mark Hockman of the Law Offices of Wade E. Byrd in Fayetteville represented the teen’s family.

In the 2009 film, Jason Statham plays a man who has an artificial heart and must periodically receive shocks to stay alive. The poster for the firm shows the character shocking himself in the mouth with jumper cables. The tagline reads: “He was dead … But he got better.”

On the day he was injured, the teen shaved his head – similar to Statham’s character – and snuck away from his family, Kirby said.

He went through the woods to a nearby voltage regulator, owned by a local power company, that was mounted atop a platform attached to two poles. He climbed one of the poles and deliberately touched the regulators, burning off his hands. The shock threw him from the platform and the fall caused spinal injuries that paralyzed him from the chest down.

“The loss of his hands was particularly difficult for the plaintiff, who, as a deaf mute, communicated by sign language,” Kirby said.

The plaintiffs alleged that the platform violated the National Electric Safety Code, in part because a cable was so loosely attached to one of the poles that it hung down, allowing the teen to climb the pole and get to the regulators, Kirby said. The cable should have been placed in conduit and attached to the pole, the attorneys argued.

The defense contended that the teen was contributorily negligent because he deliberately climbed the pole in an effort to shock himself, and that there was no proof the cable was hanging down at the time the teen climbed the pole (and even if it had been, that would not have been a violation of the electric code).

The teen’s attorneys argued that he was incompetent before the accident and thus could not be found contributorily negligent.

SETTLEMENT REPORT – NEGLIGENCE

Amount: $3.5 million

Injuries alleged: Loss of both hands, partial loss of arms, paraplegia

Case name: Withheld

Court: Withheld

Date of Settlement: Nov. 7, 2018

Attorneys for Plaintiff: Wade Byrd and Mark Hockman of the Law Offices of Wade E. Byrd in Fayetteville and David Kirby and Bill Bystrynski of Edwards Kirby in Raleigh

Attorneys for defendant: Withheld

13 (tie). $3.5M salvation for donation driver rammed by dump truck

A Henderson County jury has awarded $3.5 million to a Salvation Army truck driver who was broadsided by a dump truck that ran a red light.

The wreck happened on Nov. 9, 2015, said Richard Watson of Durham, who tried the case with William Gardo of Hendersonville. Bobby Ray McGraw was driving a Salvation Army donation pickup truck when he crossed an intersection at a green light in Henderson County and was hit by a dump truck driven by Primitivo Arrona.

McGraw suffered brain injuries, causing short-term memory problems, personality changes, sleep problems, and anger management issues, Watson said. His wife also brought claims for loss of consortium.

“Interestingly, there were [several] eyewitness, and we had each of them,” he said.

The jury returned its verdict Dec. 14, including $1,887,737 in special damages. The two sides negotiated a high-low pre-trial agreement, capped at policy limits of $1 million, said John Kubis of Teague, Campbell, Dennis & Gorham in Asheville, who tried the case with Jesse Sowers of the same firm.

VERDICT REPORT — AUTOMOBILE ACCIDENT

Amount: $3.5 million

Injuries alleged: Brain injuries and loss of consortium

Case name: Bobby Ray McGraw and Robin McGraw v. Primitivo Arrona and George W. Morosani and Associates Company, LLC

Court: Henderson County Superior Court

Case No.: 17-CVS-641

Judge: Gregory Horne

Date of verdict: December 14, 2018

Special damages: $1,887,737

Attorneys for plaintiff: Richard Watson of Durham and William Gardo of Hendersonville

Attorneys for defendant: John Kubis and Jesse Swords of Teague, Campbell, Dennis & Gorham in Asheville

15. Girl hit by car settles suit for $3M

A then-9-year-old girl who suffered a traumatic brain injury when she was hit by a car after getting off of her school bus has settled the case confidentially for $3 million, her attorney reported.

Hoyt Tessener of the Law Offices of James Scott Farrin in Raleigh said the accident happened on Nov. 18, 2014, and evidence showed that the driver was on her cell phone at the time of the accident. The driver denied that and contended that the girl jumped out in front of her vehicle, Tessener said.

The girl did not have a pulse when first responders reached her, Tessener said. Her injuries included a traumatic brain injury, non-displaced fracture of the occipital bone (which is at the base of the skull), rib fracture, left fibula fracture, and pulmonary contusion (a bruising of the lung).

The girl was in an intensive care unit for one week, where doctors had to induce paralysis in order to treat her. She remained in the hospital for about a month, and a rehabilitation hospital for another week. She missed the rest of the school year as a result of the injury.

The driver was not charged. Tessener said that the investigating officer ignored witness statements, and faulted the child for “darting.”

But on May 3, four days before a trial was scheduled to begin, the case settled for $3 million. Tessener said that he subpoenaed phone records from the driver’s employer, and that those records helped bring the case to a resolution.

“The big mover was her denial in answers in discovery and deposition about being on the phone,” he said. “Once we got phone records, she was caught.”

Tessener said that the girl is now doing well.

“She has made a remarkable recovery and is making grades consistent with her prior grades and participating in activities like the step team and track,” Tessener said.

Details about the case, including the venue, identity of the parties, and attorneys for the defendant were withheld pursuant to a confidentiality agreement.

SETTLEMENT REPORT – AUTOMOBILE ACCIDENT

Amount: $3 million

Injuries alleged: Traumatic brain injury, nondisplaced fracture of the occipital condyle, rib fracture, left fibula fracture and pulmonary contusion

Case name: Withheld

Court: Withheld

Date of settlement: May 3, 2018

Special damages: $117,863

Attorneys for plaintiff: Hoyt Tessener and Coleman Cowan of Law Offices of James Scott Farrin in Durham

Attorneys for defense: Withheld

16. $3M settlement for leg amputation after traffic crash

A man whose leg was amputated below the knee after his car collided with a commercial box truck has received a nearly $3 million settlement.

The 45-year-old plaintiff had been driving in Pender County in 2013, when the box truck driver swerved to avoid rear-ending a car and crossed into the plaintiff’s oncoming lane, according to an attorney for the plaintiff, G. Phillip David of David & Associates in Wilmington.

David said a confidentiality provision in the settlement agreement, which was finalized Jan. 17, 2018, prevented him from identifying the parties in the case.

The collision left David’s client, whom he described as a “severe diabetic,” with a fractured hip, ankle, wrist and five broken ribs. The man’s ankle wound later became infected and his leg had to be amputated just below the knee.

The defendant, which operates a meat processing company and had hired the box truck driver, argued that the plaintiff’s amputation was at least partly the result of his diabetes, which restricts blood flow to his limbs.

But David argued that the defendant company had failed to carry out background checks on any of its employees. If it had done the checks, it likely would have discovered that the box truck driver, who had worked for the company for two years, did not have a valid North Carolina license and was unable to obtain one because he had DWI convictions in other states, according to David.

SETTLEMENT REPORT – PERSONAL INJURY

Amount: $2.999 million

Injuries alleged: Leg amputation

Case name: Withheld

Court: Pender County Superior Court

Mediator: Mark Hamlet of Hamlet & Associates in Wilmington

Date of settlement: Jan. 17, 2018

Attorneys for plaintiff: Phillip David and David Turlington of David and Associates in Wilmington

Attorney for defendant: Withheld

17. Inmate claiming negligence led to blindness settles for $2.6M

A former inmate at Butner Federal Correctional Complex has received a $2.6 million settlement from the federal government after his lawyer said he went blind while incarcerated due to “grossly negligent medical care.”

Vannara Nhar’s attorney, Gregory Kash of Raleigh, said his client’s Vogt-Koyanagi-Harada syndrome, which causes high levels of pressure in the eyes, went untreated by medical staff, causing severe damage to the optic nerve in both eyes. He said this happened despite an ophthalmologist’s orders for monthly check-ups and Nhar’s regular complaints of vision loss.

“Mr. Nhar’s [primary care providers] grossly failed him,” Kash said.

Kash said Nhar was presented to physicians with symptoms requiring “medically necessary acute or emergent” care on 11 occasions without receiving treatment.

When Nhar told prison officials he couldn’t see at night, Kash said Nhar was told he didn’t need to see because he wasn’t allowed out at night anyways. Despite specialists’ orders to regularly check up on the pressure in Nhar’s eyes, he went months without care, Kash said.

“According to Plaintiff’s experts, allowing Mr. Nhar to go six months without being followed by ophthalmic specialists is clearly a mistake, and also a violation of the standard of care,” Kash said.

Kash said he hired two standard of care experts: Dr. Todd Wilcox and Dr. Steven Foster. Wilcox, who previously served as the president of the American Correctional Association of Doctors, said Nhar received “the worst medical care given to a prisoner he had ever seen.”

Foster, a world-renowned ocular immunology expert, rebutted the state’s argument that Nhar might have gone blind anyways even if he had received appropriate care from the prison.

Kash said that the experts put the total value of Nhar’s damages at about $10.2 million, including the cost of a daily attendant and economic losses resulting from his blindness, but several factors contributed to the case settling.

One of these was Nhar’s criminal past. While Kash said the facts of the case all showed that the prison’s negligence led to his client’s blindness, his history of alleged gang activity and gun charges were problematic, and this was compounded by the conservative nature of the venue, the federal court in the Eastern District of North Carolina.

“I talked to a number of lawyers who practice in that court and everybody felt that I was running a risk of turning down $2.6 million,” Kash said.

As a result, the case went to mediation before reaching the settlement in July 2018.

SETTLEMENT REPORT – MEDICAL MALPRACTICE

Amount: $2.6 million

Injuries alleged: Total blindness

Case name: Vannara Nhar v. United States of America

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

Case No.: 5:16-CT-3019

Judge: James Dever

Mediator: Donald Beskind of Durham

Date of settlement: July 19, 2018

Attorneys for plaintiff: Gregory Kash of Raleigh

Attorneys for defendant: Sharon Wilson and Matthew Fesak of the U.S. Attorney’s office in Raleigh

18. Paralyzed worker settles for $2.45M

A woman injured in 2015 after falling over a box at work has settled her claims for more than $2.4 million, her attorneys report.

Many of the facts of the case have been withheld pursuant to a confidentiality agreement. According to an attorney for the plaintiff, Steven Corriveau of Martin & Jones in Raleigh, his client suffered a severe lower back injury that led to “incomplete paraplegia.” She has some sensation in her extremities but is wheelchair-bound.

Her resulting workers’ compensation claim was accepted by the defendants as compensable, Corriveau said, but there were disputes over the benefits to which she was entitled. The most significant dispute concerned the plaintiff’s entitlement to past and future attendant care benefits.

“During the course of our representation, we also alleged and successfully negotiated resolutions of claims for transportation expenses and accessible housing,” Corriveau wrote in an email.

SETTLEMENT REPORT—WORKERS’ COMPENSATION

Amount: $2,452,504

Injuries alleged: Spinal injury and resulting paraplegia

Case name: Confidential

Court: North Carolina Industrial Commission

Mediator: Tom Morrow

Date of settlement: April 30

Attorneys for plaintiff: Steven Corriveau and H. Forest Horne of Martin & Jones in Raleigh

Attorneys for defendant: Confidential

19. Crash victim’s family settles suit over uneven pavement for $2.25M

The family of an elderly woman who died after she was hit by a driver who claimed that the accident was caused by uneven pavement has confidentially settled a lawsuit with the driver and the pavement company for $2.25 million, the family’s attorney reported.

Bill Bystrynski, David Kirby, and Winston Kirby of Edwards Kirby in Raleigh represented the family. The 85-year-old woman and her husband were driving home from a doctor’s appointment in eastern North Carolina at the time of the crash, and the two-lane road they were traveling on was being repaved and unlit, and it was raining, Bystrynski said.

A pickup truck in the opposite lane, driven by a 28-year-old man who’d been drinking and was returning from hunting, went off the road, overcorrected, and came into the couple’s lane, causing the collision, Bystrynski said. The woman died at the scene; her husband suffered orthopedic injuries and a closed head injury.

The investigating state trooper testified that he spent more than an hour with the driver and didn’t smell alcohol on him, and he showed no signs of impairment. The driver later pleaded guilty to careless and reckless driving. After the plea, results of a blood test came back which showed that he had a BAC of .08 two hours after the wreck.

After settling with the driver for his policy limits, the plaintiffs sued the paving company for its role in the wreck, Bystrynski said. The pickup driver said it was difficult to see that night because it was raining and there was no edge line on the road. He said when he went off the road, there was a substantial drop-off, causing him to lose control of his truck.

The paving company blamed the driver for the wreck, Bystrynski said. At that point the plaintiffs downplayed the pickup driver’s alcohol consumption and pointed to the lack of indications that he was substantially impaired.

The night of the wreck, the trooper measured an 8-inch drop-off from the pavement to the shoulder of the road. The plaintiffs alleged that N.C. Department of Transportation rules, which applied to the paving project, required that any drop-off larger than two inches had to be backfilled every night.

The paving company contended that the DOT rule applied only to widening projects, and did not apply to resurfacing projects, which had a two-week window for backfill.

DOT witnesses were inconsistent in their testimony about the rule, Bystrynski said, although more endorsed the two-week window. The paving company had created a dangerous condition by allowing an 8-inch drop-off to remain in place for multiple days, he contended, and an accident reconstructionist testified that research showed that the driver of virtually any vehicle that experiences an 8-inch drop-off will lose control if they attempt to bring the vehicle back on the road.

SETTLEMENT REPORT – AUTOMOBILE ACCIDENT

Amount: $2.25 million

Injuries alleged: Death, orthopedic injuries and closed head injury

Case name: Withheld

Court: Withheld

Date of Settlement: Nov. 21, 2018

Attorneys for Plaintiff: David Kirby, Bill Bystrynski, and Winston Kirby of Edwards Kirby in Raleigh

Attorneys for defendant: Withheld

20 (tie). Small blister that led to death leads to $2.2M settlement

The family of an elderly North Carolina woman whose festered blister resulted in her death has settled a lawsuit against a nursing home and its physicians for $2.2 million, the family’s attorney report.

Carma Henson and Thomas Henson Jr. of Henson Fuerst in Raleigh report that their client, an 88-year-old woman, was admitted to the nursing home because of dementia but was physically active and could interact with her family. She had been at the nursing home, whose name was withheld pursuant to a confidentiality agreement, for two months when a “wander guard” bracelet blistered her ankle.

The blister didn’t heal and continued to fester before the woman was sent to an emergency room three month later, Carma Henson said. By that time, 80 percent of her right lower leg was decomposing, and she eventually died as a result.

Her family filed lawsuit against the nursing home, the medical director of the nursing home, and a wound care physician. Family members say they never noticed the decomposition because her legs were covered when they visited her, Henson said.

“The overarching defense for all of the defendants was that she was in the late stages of dementia, she was terminally ill, and she was not a surgical candidate for the procedure that would have been necessary to treat her underlying arterial disease,” Henson said. “She was old and she couldn’t have survived a surgery; she’s not worth it. That was the gist of it.”

The family alleged that the nursing home was negligent in failing to ensure that the resident and her worsening condition was properly assessed and treated. Henson said that the owners and managers allowed a licensed practical nurse who had recently been hired to assess and treat the woman without proper training.

Henson said the nurse gave the woman inappropriate treatments without a physician’s orders and then violated physicians’ orders when they were issued. The nurse didn’t acknowledge that the blister showed that the woman had underlying venous and arterial insufficiency that needed treatment, she said.

The family also contended that neither the owners and manager of the nursing home nor its corporate-level supervisors had systems in place to ensure that wounds were being properly assessed, monitored, and treated there, or that their nursing staff received adequate training.

Henson said the facility was understaffed and employed significantly more licensed practical nurses than registered nurses, despite the fact that registered nurses are the only health care providers allowed to perform a nursing assessment under North Carolina law.

SETTLEMENT REPORT — WRONGFUL DEATH

Amount: $2.2 million

Injuries alleged: Death

Case name: Withheld

Court: Withheld

Case No.: Withheld

Date of settlement: Nov. 27, 2018

Attorneys for plaintiff: Carma Henson and Thomas Henson Jr. of Henson Fuerst in Raleigh

Attorney for defendant: Withheld

20 (tie). Charlotte doctor accused of sex assault hit with $2.2M verdict

A Mecklenburg County jury has awarded $2.2 million to two women who accused a Charlotte doctor of sexually assaulting them during their medical exams.

Jurors ordered Dr. Fidelis Edosomwan, owner and president of Americare Health Plaza Medical Center, to pay $1.1 million in actual and punitive damages to each of the women. Lawyers Weekly does not identify alleged sexual assault victims.

An attorney for the woman who spearheaded the suit, Alex Heroy of James McElroy & Diehl in Charlotte, said nearly 40 women have come forward with allegations against Edosomwan, and several testified against him during the trial.

“I asked him [Edosomwan] what his theory was for all these women who didn’t know each other, how they could have strikingly similar allegations against him, and his response was that they had ‘Me Too syndrome,’” Heroy said.

When asked how the jurors reacted to Edosomwan’s statement, Heroy said: “Shock. Absolute shock.”

Heroy’s client alleged in her complaint that Edosomwan first molested her in 2013, while she was on his exam table. She said she immediately notified a nurse about what happened and was told that appropriate action would be taken and that she would never have to see Edosomwan again.

But when she returned in 2015 for a pap smear, Edosomwan entered the room and the woman was “overtaken with fear and shock.” The woman’s child and a nurse were in the room. But when the nurse looked away for a moment, Edosomwan inappropriately touched the woman’s genitals, according to her complaint.

She said that a visibly aroused Edosomwan “closed his white lab coat to cover himself as he left the room.”

While the allegations against Edosomwan were heinous and multiple accusers took the stand to testify against him, the case was far from a slam dunk. Another patient who’d sued the doctor lost at trial before Heroy’s case went before a jury, Heroy said.

“It was daunting. But in that case the doctor merely said something highly inappropriate during the exam,” he added, “versus our case where he actually completed the exam and then molested the patient.”

The judge also excluded Heroy’s expert, who had had concluded, based on personality tests, that his client sustained severe psychological injuries as a result of what Edosomwan had done to her. Still, jurors apparently were swayed by the testimony they heard. After the verdict, Heroy said he and his co-counsel, Kavita Desai, spoke with the jury and there was an “outpouring of emotion.”

“They were crying and hugging us after the conclusion of the trial. They’ve been emailing me,” he added. “The response from the jury has been incredible.”

Heroy said the statute of limitations has expired on the potential civil claims that other patients might have had against Edosomwan.

VERDICT REPORT – SEXUAL ASSAULT

Amount: $2.2 million

Case name: Withheld

Court: Mecklenburg County Superior Court

Judge: Eric Levinson

Date of verdict: Feb. 14, 2018

Attorneys for plaintiffs: Alex Heroy and Kavita Desai of James McElroy & Diehl in Charlotte and Don Higley of the Lanier Law Group in Jamestown

Attorneys for defendant: Lisa Hoffman and Beth Stanfield of Shumaker, Loop & Kendrick in Charlotte

22 (tie). Cumberland schools settle with shooting victim for $2M

The unintended victim of a school shooting has reached a $2 million settlement with Cumberland County’s board of education, her attorney reports.

Catilyn Abercrombie sued the county board of education after she was shot in the neck by a fellow student who snuck a rifle into Cape Fear High School in 2011 by tucking it into the leg of his pants in an attempt to shoot a different classmate.

Upon arriving at the school, the student roamed the hallways for hours with the gun concealed beneath his clothes. While the school system owned a metal detector and video cameras, nobody stopped the student in the hallway prior to the shooting or asked him why he wasn’t in class.

“I think it was the videotape of the defendant roaming around through the school with a loaded rifle, such a bizarre factual situation,” attorney Brent Adams said. “Nobody was watching the monitors.”

There were numerous steps prior to the shooting at which the student could have been stopped, Adams said. He apparently rode the school bus with the loaded gun tucked under his clothes before roaming the hallway without the appropriate hall pass. The metal detector didn’t go off when he entered the school because it wasn’t turned on.

Eventually, during a brief recess period, he shot at and missed his intended victim, seriously injuring Abercrombie in the process.

“The young man decided his goal was to kill a fellow student, and if he’d been a better aim, that’s what he would have done,” Adams said. “Our client was not his intended victim, but she almost died and had very significant personal injuries. She is lucky to be alive.”

Adams said that while his client, who is now 22, lives an almost normal life, she has motion limitations in her neck which were caused by numerous surgeries to rearrange her muscles to repair her shattered esophagus. Seven years later, she still gets frequent headaches and has nerve damage in one of her arms.

The two sides agreed to the settlement Aug. 15, 2018 after extensive mediation. Adams said he gave a video presentation during mediation which showed snippets from depositions, of focus groups, and of the shooter roaming the halls. Afterward, he said, the defense was more willing to compromise.

“It was very well defended,” Adams said. “They had a very good defense firm defending this effectively, and we just happened to have overwhelming facts on our side.”

Mary Webb, of Ragsdale Liggett in Raleigh, represented the board of education. She said the decision to settle the case came from the school board’s insurer and that she felt the board had a good case had it gone to trial.

“We contend that this was not a foreseeable shooting,” she said in an interview. “It is very clear that in order to prevail on school security cases, you have to have a repeated course of conduct. And the shooter, in this case, didn’t have that.”

SETTLEMENT REPORT – NEGLIGENCE

Amount: $2 million

Injuries alleged: Injuries to neck muscles and esophagus requiring surgery, nerve damage

Case name: Abercrombie v. Cumberland County Board of Education

Court: Cumberland County Superior Court

Case No.: 16 CVS 7878

Mediator: Bob Beason of Durham

Date of settlement: Aug. 15, 2018

Attorneys for plaintiff: Brent Adams of Dunn

Attorneys for defendant: Nick Sojka for the Cumberland County Board of Education, Mary Webb of Ragsdale Liggett in Raleigh, Ronnie Mitchell of The Mitchell Law Group in Fayetteville, and Robert Walker Jr. of Walker Allen in Goldsboro

22 (tie). Suit over infant brain injury settles for $2M

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

Many of the case’s details have been withheld pursuant to a confidentiality agreement, according to the woman’s attorney, John Hensley Jr. of Asheville.

Hensley 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: Confidential

Court: Confidential

Date: Jan. 17, 2018

Attorney for plaintiff: John Hensley Jr. of Asheville

Attorney for defendant: Confidential

24. Deadly motorcycle crash settles for $1.8M

The estate of a man killed when his motorcycle crashed into a mowing tractor has settled its wrongful death lawsuit for $1.8 million, its attorneys report.

Michael Newman of Van Camp, Meacham & Newman in Pinehurst reports that his client Joseph Baker, 66, was riding his Harley Davidson on N.C. Highway 24-27 in Harnett County on Aug. 15, 2017 when he crashed into a commercial mowing tractor being operated by a North Carolina Department of Transportation contractor.

Newman said that Baker was traveling at the posted speed limit of 55 mph and that the defendant, Harry Brady, 46, was cutting grass on the road’s shoulder. Brady attempted to make a U-turn across the two-lane highway, and Baker swerved into the other lane in an unsuccessful attempt to avoid the crash.

Baker was ejected from his three-wheel motorcycle. He was airlifted to UNC Hospital, and spent three days in ICU before succumbing to his injuries, Newman said.

Brady was employed by Virginia-based Meador Farms. Its insurer, The Cincinnati Insurance Company, paid the entire $1.8 million settlement, Newman said.

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $1.8 million

Case name: Estate of Joseph Baker v. Brady, et. al.

Court: Harnett County Superior Court

Case No.: 17 CVS 2300

Date of settlement: Feb. 2

Attorneys for plaintiff: Michael Newman and Thomas Van Camp of Van Camp, Meacham & Newman in Pinehurst

Attorney for defendant: Marc Meister of Hilton Head, South Carolina

25. Painter run over by bucket truck settles suit for $1.6M

A painter who was run over by a bucket lift vehicle has settled his suit against the employer of the driver for $1.6 million, his attorney reports.

Isaac Thorp of Thorp Law in Raleigh said the settlement occurred after the court denied the defendant’s motions for summary judgment on claims of gross negligence and punitive damages.

The incident occurred at the Goodyear plant in Fayetteville when plaintiff David Cain was hit by the vehicle from behind while painting a guardrail. Cain’s left foot was crushed, causing breaks to multiple ankle bones and permanent nerve damage in the area.

Thorp said he believes the court sided in his client’s favor at the summary judgment hearing after Motley Communications, the driver’s employer, argued he was not responsible because he could not see Cain.

“The owner said, ‘I don’t believe we violated the rule because the driver didn’t know that your guy was there. Since he didn’t know it, how could he yield?’” Thorp said. “If that’s his view of safety, it shows reckless disregard for the rights and safety of others … judges tend to be reluctant to allow punitive damage claims to go to jury, but that seemed to get the judge’s attention.”

Thorp said the company’s president also admitted that driving the vehicle with the basket positioned in the rear creates a blind spot and that he didn’t train equipment operators to stop the lift if they lost sight of their spotters. He said this proved the case met the standard for gross negligence leading to punitive damages had the case gone to trial.

“Based on this testimony, I argued that the defendant had a practice that permitted its lift operators to ‘drive blind,’” Thorp said.

Thorp said the defense argued that Cain was partly to blame for the accident, saying he chose to paint the guardrail while positioned in a heavily traveled trucking aisle, that he could have painted the guardrail from a different position, that he could have painted it facing forward to see oncoming traffic and that he should have worn a high visibility safety vest.

SETTLEMENT REPORT – NEGLIGENCE

Amount: $1.6 million

Injuries alleged: Fractured left ankle, permanent nerve damage and ankle limitations

Case name: David Cain v. Motley Communications, LLC

Court: Cumberland County Superior Court

Case number: 17 CVS 3366

Mediator: William Senter of Fayetteville

Attorney for plaintiff: Isaac Thorp and Brandon Weaver of Thorp Law in Raleigh

Attorney for defendants: Karl Edgar of Hillsborough