— Posts About Briefs

Patterson Harkavy files brief with the United States Supreme Court on behalf of the victims of Camp Lejeune’s water contamination

Last week, Patterson Harkavy filed an amicus brief with the United States Supreme Court in support of the rights of individuals injured by exposure to hazardous waste.  Attorneys Burton Craige, Narendra Ghosh, and Paul Smith were responsible for the brief, with Attorney Ed Bell from South Carolina appearing as co-counsel.

The amicus brief addresses one of the nation’s largest environmental disasters, occurring on Marine Corps Base Camp Lejeune near Jacksonville, North Carolina.  For decades, Camp Lejeune’s drinking water was contaminated with multiple known human carcinogens.  Although the military had reason to know of the contamination, it did nothing to address the problem until the 1980s.   Once the government finally began closing contaminated wells in 1985, it concealed the scope of the contamination for many more years.  The contamination resulted in illnesses and disorders which have devastated countless lives.

Patterson Harkavy represented five of these individuals before the Supreme Court.  Our clients include some of the highest profile advocates for Camp Lejeune’s victims, including Jerry Ensminger, a former Marine whose deceased daughter Janey is the namesake for federal legislation providing medical benefits to many of the contamination’s victims; Mike Partain, a male breast cancer survivor who has identified an ever-expanding cluster of other male breast cancer victims with similar exposure to Camp Lejeune’s water; and Tom Townsend, a former Marine who lost his infant son to Camp Lejeune’s water, and who has worked with Ensminger to uncover the extent of the base’s contamination and the full scope of the government’s efforts to suppress evidence of its malfeasance.

Patterson Harkavy’s brief was filed in CTS v. Waldburger.  At issue is a 1986 amendment to the Superfund Act.  The amendment was enacted to ensure that individuals injured as a result of their exposure to hazardous waste can bring suit when they discover their injury and its cause, even if their claims would otherwise be barred by state statutes of limitation.  The defendant in Waldburger is seeking to shield itself from legal liability under a provision in North Carolina’s statutes of limitation that prevents many legal claims from being brought more than ten years after the occurrence of the act causing an injury.  Defendant argues that since North Carolina’s provision has been judicially labeled a “statute of repose” instead of an ordinary statute of limitation, the 1986 amendment does not affect it in any way.

Many of those injured by Camp Lejeune’s water developed cancer decades after being exposed to the base’s carcinogenic water.  A ruling in favor of the defendant in Waldburger could therefore prevent these individuals from bringing any legal claims against the military.  The United States government supports the defendant’s position, and has made nearly identical arguments in a separate case in an attempt to avoid liability for its misconduct at Camp Lejeune.

Patterson Harkavy’s brief can be accessed here.  It discusses the scope of the Camp Lejeune disaster and describes how the Supreme Court’s ruling could affect countless military families that were recklessly exposed to hazardous chemicals.

The story of the Camp Lejeune contamination, its effects, and the efforts to uncover the government’s malfeasance has been told in the award-winning film “Semper Fi: Always Faithful,” and in the recently published book “A Trust Betrayed: The Untold Story of Camp Lejeune and the Poisoning of Generations of Marines and Their Families.”  Additional information can be found on the website “The Few, The Proud, The Forgotten.”

Categories: News of the Firm Tags: , , , , , , ,

Narendra and Paul file Amicus Brief in Support of the UNC Center for Civil Rights

Narendra Ghosh and Paul Smith have submitted an amicus brief on behalf of the North Carolina Advocates for Justice in The Royal Oak Concerned Citizens Association et. al. v. Brunswick County.  The Plaintiffs are represented in part by the UNC Center for Civil Rights.

The Plaintiffs advocate the interests of the residents of Royal Oak, a historically African American community in majority-white Brunswick County.  Plaintiffs allege in part that Brunswick County has engaged in a pattern and practice of discrimination against their community because of its racial composition.  Royal Oak has long been denied sewer and water access and has disproportionately born the burden of the county’s undesirable land uses, including the longstanding operation of a landfill and the relocation of an animal shelter to the community from a predominantly white neighborhood.  Brunswick County recently voted to rezone two properties within the community for industrial use, with express intent to expand the existing landfill.  As a result of Brunswick County’s actions, the Plaintiffs allege that the value of the Royal Oak residents’ land has declined, that residents have been forced to undertake great expense to secure drinkable water, and that some homes have been rendered uninhabitable.  Plaintiffs sued the county on a number of grounds.  On September 7, 2012, the trial court denied the majority of Brunswick County’s motion to dismiss.  The County appealed this order.

Narendra and Paul’s brief addressed the viability of the Plaintiffs’ claims under the North Carolina Fair Housing Act, which in part prohibits local governments from making land use decisions that have the intent or effect of discriminating against residents on the basis of their race.  Defendant argued that Plaintiffs’ claims under the Act were not viable because they had not first elected to pursue administrative relief, and because the County had yet to obtain a final permit for the landfill expansion.  The amicus brief discusses the extent to which imposing an administrative exhaustion requirement on claims under the North Carolina Fair Housing Act would defeat the rights the Act seeks to create.  It also argues that it would be appropriate for the court to enjoin the expansion of the landfill at this time and that, regardless, the justiciability of the entire controversy does not turn on the availability of that one form of relief.

For more information, see this news report discussing the controversy and this op-ed from the News & Observer.

Categories: News of the Firm Tags: , , , , , , , , , ,

Burton and Narendra Secure Court of Appeals Win in Medical Malpractice Discovery Dispute

In Hammond v. Saini, __ N.C. App. ___, 748 S.E.2d 585 (2013), the Court of Appeals ruled in favor of Patterson Harkavy’s client, Plaintiff Judy Hammond.  Ms. Hammond suffered severe injuries from an operating room fire while undergoing surgery to remove a possible basal cell carcinoma from her face.  In her subsequent medical malpractice suit, the Defendants refused to produce certain documents addressing the fire and notes made by the hospital’s risk manager following the fire.  The trial court rejected the Defendants’ argument that these items were privileged and granted Ms. Hammond’s motion to compel discovery.  Burton Craige and Narendra Ghosh represented Ms. Hammond on Defendants’ appeal of that decision.

On September 3, a Court of Appeals panel published a unanimous opinion in favor of Ms. Hammond, affirming the order compelling production of the Defendants’ reports, and remanding the issue of whether the risk manager’s notes were protected by the Work Product Doctrine to the trial court.  For more information, read Burton and Narendra’s brief to the Court of Appeals.

 

Categories: Judicial Decisions, Results Tags: , , , , , , , , ,

Burton and Narendra File Amicus Brief with NC Supreme Court in Defense of the Racial Justice Act

Burton Craige and Narendra Ghosh have submitted an amicus brief on behalf of the North Carolina Advocates for Justice in North Carolina v. Marcus Reymond Robinson.  The case addresses the first instance of a North Carolina death row inmate having his death sentence reduced to life in prison under the North Carolina Racial Justice Act.

The Racial Justice Act was a landmark piece of legislation enacted in 2009.  It permitted individuals on death row to use statistical analysis when arguing that race played a role in their sentencing; those death sentences found to have been sought or obtained on the basis of race under the act would be commuted to life without possibility of parole.  The Racial Justice Act was weakened in 2012, and repealed in 2013.

Marcus Robinson was the first death row inmate to have his sentence commuted to life without possibility of parole under the RJA.  In April of 2012, Judge Gregory Weeks found that Robinson had introduced “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina” that had been largely unrebutted by the State.  Judge Weeks ultimately concluded that prosecutors had intentionally used race as a significant factor when striking potential jurors, and found that race had been a significant factor in determining when the death penalty was sought and imposed at the time of Robinson’s trial.  Judge Weeks therefore commuted Robinson’s death sentence to life without the possibility of parole.  Read this article from the New York Times for more information on Mr. Robinson’s case.

The State appealed Judge Week’s order to the North Carolina Supreme Court.  Burton and Narendra’s amicus brief discusses the nature of racial bias in jury selection, addresses the limited extent to which long-standing constitutional doctrines protect against such bias, explores the manner in which the Racial Justice Act remedied these deficiencies, and argues that Judge Weeks correctly applied the Racial Justice Act in commuting Robinson’s sentence.

 

Categories: News of the Firm Tags: , , , , , , , , ,

NC COA Examines Public Duty Doctrine

The North Carolina Court of Appeals reversed the decision of the North Carolina Industrial Commission in Ray v. NC Department of Transportation.  The case involved the death of a motorist and her passengers in 2002 when an eroded section of pavement caused her vehicle to go off the roadway, she corrected, and hit an oncoming car head on.  The plaintiff alleged that that NC DOT was negligent in maintaining the roadway and not repairing the eroded section which they knew was dangerous or should have known was a dangerous to motorists.  The Commission dismissed the case based on the public duty doctrine which can be used as a defense by the State of North Carolina from certain tort claims.  Reversing, the Court of Appeals concluded:

“ This case does not involve a failure to inspect or to police, but a failure to repair a defective section of roadway. There is no “hazard created by others” or important discretionary decision which requires the government to be protected under the public duty doctrine.”

Burton Craige wrote an amicus brief on behalf of the North Carolina Advocates for Justice for this case.  The brief can be accessed here.

Categories: Judicial Decisions, Results Tags: , , , , , , , , , ,

Brief Filed for Rawls in Workers’ Compensation Appeal

In Rawls v. Yellow Transportation, the Industrial Commission concluded that plaintiff Veran Rawls suffered a compensable injury by accident in 2005 and has been totally disabled since that time.   Defendants appealed.  Hank Patterson and Narendra Ghosh, representing Mr. Rawls, filed this brief in the Court of Appeals.  Summary of the brief: Read more…

Categories: News of the Firm Tags: , , , , , , , ,

Briefs in IBEW 289 Arbitration Case in Federal Court

In International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 289 v. Verizon South, Inc., the Union has filed suit in federal court (Middle District of North Carolina) to compel the company to engage in arbitration regarding the termination of an employee.  On behalf of the Union, Patterson Harkavy has filed this response brief and this reply brief.  Mike Okun and Narendra Ghosh are representing the Union.

This is a summary of the Union’s argument:  Because national labor policy strongly favors arbitration as the means for resolving labor disputes, courts must apply a presumption of arbitrability to collective bargaining agreements that contain arbitration provisions, and direct the parties to arbitrate unless the parties have expressly agreed not to arbitrate a particular matter.  Any doubt or ambiguity regarding arbitrability is to be resolved in favor of arbitration. 

Here, the parties’ collective bargaining agreement and separate settlement agreement for grievant Brian Pollard require arbitration of the grievance regarding Pollard’s termination because Pollard was not a “new employee” when he was rehired in 2010.  Moreover, to the extent the settlement agreement is ambiguous about permitting Pollard’s grievance to be arbitrated, that ambiguity must be construed in favor of arbitration.  Therefore, defendant’s motion to dismiss should be denied, and plaintiff’s motion to compel arbitration – filed this same day – should be granted.

Categories: News of the Firm Tags: , , , , , , , ,

Briefs in ATU 1328 Arbitration Case

In, Cape Fear Public Transit Authority v. Amalgamated Transit Union (ATU) Local 1328, the Wilmington transit authority is challenging a labor arbitration that was in favor of the Union, and which ordered a terminated employee be put back to work.  This case is before Judge Boyle in federal court (EDNC).  On behalf of the Union, Patterson Harkavy has filed the following brief, response brief, and reply brief.  Mike Okun and Narendra Ghosh are representing the Union.

Here is a summary of the Union’s position: 

First, plaintiff’s claim should be dismissed for failure to timely effect service because plaintiff did not properly serve defendant before the 120-day deadline elapsed, and had no good cause for its failure to do so.  Second, plaintiff’s claim should be dismissed because plaintiff CFPTA was not a party to the arbitration decision that it seeks to vacate, has no standing to challenge the decision, and has provided no relevant authority to demonstrate that it is permitted to bring this suit under 28 U.S.C. § 185. 

Third, plaintiff’s claim should be dismissed for failure to state a valid claim to vacate the arbitration decision.  The arbitrator correctly determined that Professional Transit Management of Wilmington, Inc. (“PTM”) violated the controlling collective bargain agreement (“CBA”) in terminating the grievant, and to the extent there was ambiguity in the operative language of the CBA, the arbitrator’s interpretation cannot be disturbed by the Court.  Under the standard enunciated by the Supreme Court, plaintiff has also failed to show how the arbitrator’s decision to reinstate the grievant violates any clearly established public policy.  For all these reasons, the Court should award defendant its reasonable attorneys’ fees incurred in this litigation because plaintiff’s motion to vacate the arbitration award has no arguable basis in the law.

 

Categories: News of the Firm Tags: , , , , , , , ,

Burton Files Amicus Brief with Court of Appeals in Medical Malpractice Case

Burton Craige recently submitted an amicus brief with attorney Andrew J. Schwaba on behalf of the North Carolina Advocates for Justice in Jenkins v. Hearn Vascular Surgery P.A., addressing the question: “Is a child injured by prenatal medical malpractice barred from bringing a cause of action if the negligence occurred early in the pregnancy?”  A copy of the brief may be viewed here.

Summary of the Brief:  “Decades ago, North Carolina joined nearly every other state in recognizing that survivors of prenatal medical malpractice can bring negligence claims against the doctors responsible for their injuries and birth defects. … Our courts did not make recovery dependent on a fetus’s gestational age at the time of the negligence.

The question of whether North Carolina’s Wrongful Death Act, N.C.G.S. § 28A-18-2 creates a cause of action for the wrongful death of a nonviable fetus has no relation to claims of common law negligence.  When it is reasonably foreseeable that negligent care could injure a woman’s future child, doctors have the duty to avoid negligently placing the future child at risk of injury.  This duty does not depend on whether a fetus has reached the stage of viability.  Accepting a contrary rule would run counter to North Carolina law, break ranks with every other state, and deny a remedy to injured children who will suffer their entire lives because of avoidable medical negligence.”

Categories: News of the Firm Tags: , , , , , , , ,

Patterson Harkavy Defeats Summary Jugment in Sexual Harassment Case

In the case of Pascoe v. Furniture Brands International, Judge Frank Whitney in the Western District of North Carolina denied the defendants’ motion for summary judgment on plaintiff’s claims of sexual harassment today.  The case will now proceed to trial, which is scheduled for later this month.  Ann Groninger and Joshua Van Kampen represent the plaintiffs, Pam Pascoe and Margaret Tambling, against their former employers in this case.

Judge Whitney did not issue a written decision, but plaintiff’s memorandum in opposition to summary judgment well describes this case:

This case raises a very poignant and present question, which is the extent of an employer’s liability under state and federal law for the conduct of a seemingly mentally unstable supervisor who tormented his female employees with threats of violence, including gun violence, surveillance of their homes, and numerous bizarre sexual comments. Regrettably, the conduct at issue in this case is a cautionary tale of an employer that flubbed the handling of a potentially dangerous situation by initially ignoring glaring warning signs, subsequently severely under-reacting to them, and which ultimately chose to circle the wagons around the proverbial outlaw, rather than act as a responsible member of our corporate community. Thankfully, Spicer did not turn his guns on these women as he said he might, but plaintiffs feared that he was fully capable of physically harming them. They have carried emotional scars left by Mr. Spicer’s conduct; injuries made worse by their employer’s betrayal of them. Defendants may aim to use their summary judgment motions to establish a low water mark of the protections afforded women in the workplace in North Carolina; however, plaintiffs respectfully submit that they have marshaled sufficient facts to permit a jury to answer that question.

Categories: Judicial Decisions, News of the Firm Tags: , , , , , , , , , ,