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Tag Archives: first impression

Tort/Negligence – Constructive Fraud – Financial Advisor – First Impression – Fraud – Unfair Trade Practices (access required)

Kettle v. Leonard Where defendant held himself out to be a financial advisor, invited plaintiffs to place their trust and confidence in him, and convinced plaintiff to invest in the businesses and annuities that he recommended, defendant owed plaintiffs a fiduciary duty.

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Tort/Negligence – Wrongful Death — Medical Malpractice – 9(j) Certification – Statute of Limitations—Expert Witness – First Impression – Partial Dismissal (access required)

Estate of Wooden v. Hillcrest Convalescent Center, Inc. Where a trial court grants a motion to dismiss pursuant to Rule 9(j) requirement s for expert testimony in a medical malpractice case, the court must include in that order its findings of fact and conclusions of law to support its action. What’s more, the trial court need not dismiss in its entirety a medmal complaint only partially in compliance with 9(j); rather, the trial court may grant partial summary judgment.

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Attorneys – First Impression — Civil Practice – Discovery – Deposition – Opposing Counsel – Insufficient Showing – Subpoena Duces Tecum – Privilege (access required)

Blue Ridge Pediatric & Adolescent Medicine, Inc. v. First Colony Healthcare, LLC Where defendants have failed to show that (1) there are no other means to obtain the information they seek, (2) the information possessed by plaintiffs’ counsel is relevant and non-privileged, and (3) the information is critical to the issues at stake in this litigation, defendants are not entitled to depose plaintiffs’ counsel.

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Criminal Practice – Jury & Jurors – ‘Anonymous’ Jury – Murder Trial – First Impression – Constitutional – Hearsay Evidence – Murdered Witness — Conspiracy (access required)

U.S. v. Dinkins Using an ‘anonymous’ jury whose biographical information has been withheld from defense lawyers and defendants accused of drug-trafficking and the murder of government witnesses is not a reason to overturn their convictions; the 4th Circuit follows decisions by its sister circuits and provides guidelines for use of anonymous juries.

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Criminal Practice – Search & Seizure – First Impression – Drug Dog Sniff of Vehicle – Recent Passenger (access required)

State v. Smith At a gas station, defendant, another passenger, and the driver got out of a car that was playing loud music. The driver was ticketed for a noise ordinance violation, and a drug dog alerted to a controlled substance at the driver’s door. These circumstances did not give police reasonable cause to search defendant’s person.

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Workers’ Compensation – Temporary Partial Disability Benefits – Average Weekly Wage – Second Job – First Impression (access required)

Tunell v. Resource MFG If an employee is holding down two jobs and is injured at the first job, his “average weekly wage” does not include wages from his second job even if the injury prevents him from returning to either job. Likewise, if an injury prevents the employee from returning to his first job, but he is still able to work at his second job, the calculation of his temporary partial disability benefits does not take into consideration his wages from the second job, unless the second job has been enlarged or used as a substitute for the loss of earnings from the first job.

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Bankruptcy – Chapter 13 – Household Size – Domestic Relations – Parent & Child – Split Custody – Children & Stepchildren – First Impression (access required)

Johnson v. Zimmer It’s not just “heads on the beds” that count when a bankruptcy court is trying to determine “household” size for a Chapter 13 debtor in a “blended” household that includes children and step-children who are part-time residents, but the “economic unit,” the 4th Circuit says in this first-impression case for all circuit courts; debtor may amend her plan to reflect a household of five, not seven.

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Civil Practice – Joinder – Counterclaims – Current Party – First Impression – Real Party in Interest – Corporate (access required)

Nelson v. Alliance Hospitality Management, LLC A plaintiff cannot compel one defendant to join in another defendant’s counterclaim. Motion denied. Plaintiff cites no case, and the court has found none, in which an N.C. court has compelled a party already present in a lawsuit to join additional claims or counterclaims.

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Civil Practice – Evidence – Privilege – Clinical Social Worker – Standing to Object & Appeal – First Impression (access required)

Mosteller v. Stiltner Where the defendant-patient has not objected to discovery of his clinical social worker’s files or to her deposition, the social worker lacks standing to object to such discovery or to appeal the trial court’s order requiring her to comply with plaintiff’s discovery requests.

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