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Author Archives: ericahampton

Civil Practice – Personal Jurisdiction – Specific Jurisdiction – Web & Catalog Sales – Medical Devices – Registration & Permit (access required)

North Carolina Board of Pharmacy v. Najarian Over a three-year period, via website and catalog sales, the Massachusetts defendant delivered medical supplies to N.C. customers on 1,454 occasions for a total of $150,189.61, and plaintiff contends that some or all of those supplies constituted devices or medical equipment under N.C. law. Furthermore, beginning in January 2011, defendant contacted plaintiff on multiple occasions and was informed that he was required to obtain a Device and Medical Equipment Dispensing Permit before delivering devices or medical equipment to N.C. customers.

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Domestic Relations – Parent & Child – Custody Modification – Insufficient Findings – Civil Contempt (access required)

Davis v. Davis Since the plaintiff-mother never filed any pleadings under G.S. Chapter 50B, it doesn’t matter whether the trial court would have had the authority to order the defendant-father to seek anger management treatment under Chapter 50B. We vacate the custody modification order. We affirm the trial court’s refusal to hold the mother in contempt.

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Tort/Negligence – Medical Malpractice – Res Ipsa Loquitur – Colectomy – Expert Witness – Standard of Care – Hospital & Surgeon — Apparent Agency (access required)

Robinson v. Duke University Health Systems, Inc. In medical malpractice actions, res ipsa loquitur is not limited to situations in which a foreign object is left in the body or there is an injury to a part of the body away from the site of the surgery. Plaintiffs can proceed under a res ipsa theory where the plaintiff-patient underwent a colectomy in which part of her intestine was removed and, instead of reattaching her remaining intestine to her rectum, the surgeons attached her intestine to her vagina.

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Tort/Negligence – Excessive Force – Taser — Public Official Immunity – Malicious Prosecution — Constitutional (access required)

DeBaun v. Kuszaj A product warning accompanying the defendant-police officer’s taser says that “loss of control [as a result of taser probe deployment] can in some circumstances increase the risks of serious injury or death resulting from the loss of balance [or] falls.... Especially at risk are persons: ... Who are running”; nevertheless, the defendant-city’s police department only prohibits using tasers on elderly persons, pregnant women, visibly frail persons, any person who is in control of a vehicle in motion, or any person who is in a position which creates the likelihood for additional injury other than those created by the effects of the taser.

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Criminal Practice – DVPO – Firearms Surrender – Shotgun Possession – Constitutional – Due Process (access required)

State v. Poole Defendant was served with a domestic violence protective order that required him to surrender all firearms, but the next day a shotgun was found in his home. Even though the DVPO was issued after an ex parte hearing, it was nevertheless a “valid protective order,” and defendant was not entitled to a dismissal of the indictment that charged him with “owning, possessing, purchasing, or receiving a firearm” in violation of a DVPO pursuant to G.S. § 14-269.8.

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Criminal Practice – Constitutional – Confrontation Clause – Evidence — Expert Witness – Independent Opinion (access required)

State v. Brewington The testing analyst’s lab notes were not admitted into evidence, the testifying expert presented an independent opinion formed as a result of her own analysis, and defendant was able to conduct a vigorous and searching cross-examination that exposed the basis of and any weaknesses in the testifying expert’s opinion. Accordingly, defendant’s Confrontation Clause rights were not violated.

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Labor & Employment – Contract – Covenant Not to Compete – Physician – Medical Practice – Civil Practice – Preliminary Injunction – Likelihood of Success – Irreparable Harm (access required)

Pinehurst Surgical Clinic, P.A. v. DiMichele-Manes The plaintiff-medical practice has shown that the non-compete covenant in the parties’ employment agreement was valid and enforceable and that the defendant-doctor violated the covenant by going to work for a nearby competitor; therefore, plaintiff was likely to succeed on the merits of its case.

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Real Property – Contract – No Meeting of the Minds – Restrictions – Specific Performance (access required)

Nall Farm Road, LLC v. Watson The parties’ agreement to transfer real property said, “There must be no restriction, easement, zoning, or other governmental regulation that would prevent the reasonable use of the Property for 2 Residential homes, no mobile homes, no multifamily purposes.” Given that clause, the defendant-seller’s rejection of a deed which had no restrictions, and her proposal of a deed restricting use of the property to two single-family homes, the trial court could find that there was no meeting of the minds as to the permitted use of the property at issue.

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Contract – Banks & Banking – Credit Card Default – Civil Practice – Discovery – Admissions (access required)

FIA Card Services, N.A. v. Ashworth The pro se defendant contends plaintiff could not have opened a credit account for defendant because plaintiff is not authorized to issue credit cards. However, by failing to timely respond to plaintiff’s request for admissions, defendant admitted entering into a credit agreement with plaintiff, breaching the agreement, and the amount of damages owed.

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