— Posts About Negligence

Recent Wrongful Conviction Settlements Total Over $12,000,000

Patterson Harkavy attorneys Burton Craige and Narendra Ghosh, with co-counsel Spencer Parris and Chris Olson, recently obtained settlements totaling more than $12,000,000 for two men who were imprisoned for crimes they did not commit.

In 1992, Greg Taylor was convicted of first-degree murder and sentenced to life imprisonment.  After Taylor served 17 years in prison, his lawyers found SBI lab notes contradicting the official SBI lab report that blood linked Taylor to the victim.  Presented with the new evidence in 2009, the North Carolina Innocence Commission exonerated Taylor and ordered his release.

Representing Greg Taylor, Burton and Narendra filed a civil rights suit against Duane Deaver, who wrote the misleading lab report in Taylor’s case, and four other SBI officials. The Defendants were represented by seven lawyers from the Attorney General’s Office.  The litigation confirmed that the SBI had a long-standing practice of producing reports that omitted the negative results of confirmatory serology testing.  The failure to disclose this exculpatory evidence violated Taylor’s constitutional rights and resulted in his conviction. After three years of litigation, the case settled in September 2013 for $4,625,000.

For more information about the case, see the complaint, Burton Craige’s presentation at mediation, and newspaper coverage of the settlement.

In 1989 Dwayne Dail, age 20, was convicted of the rape of a 12-year old girl in Goldsboro, and sentenced to life imprisonment.  The conviction was based on the victim’s misidentification of the rapist.  DNA testing became available in the mid-1990s.  In 1995, Dail’s family members raised the necessary funds and requested that the crime scene evidence be subjected to DNA testing. The City Attorney and the Goldsboro Police Department (GPD) told them – inaccurately — that all the evidence had been destroyed.  On multiple occasions over the next 12 years, family members and staff from the North Carolina Center for Actual Innocence (NCCAI) repeated the request for the evidence.  Each time they were told that all the evidence had been destroyed.  In 2007, Chris Mumma and Sharon Stellato from NCCAI made one final request to the GPD.  An employee found an envelope containing evidence from the case, including the victim’s nightgown.  DNA testing of semen on the nightgown matched William Neal, currently in prison for other crimes.  Dail was exonerated and released after 18 years in prison.

Representing Dwayne Dail, Burton and Narendra filed suit against the City of Goldsboro, including claims for civil rights violations, negligence and obstruction of justice. The case presented complex, novel issues of constitutional law, reflected in Judge Terence Boyle’s order denying the City’s motion to dismiss.  After extensive discovery, Judge Boyle ruled that Dail had produced evidence sufficient to support his claims.  After three years of litigation, including three mediated settlement conferences, the case settled in November 2013 for $7,520,000.  For more information about the case, see the complaint, Burton Craige’s presentation at mediation, and news coverage of the settlement.

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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.


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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.”

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Civil Rights Complaint Filed on Behalf of Greg Taylor

A civil rights complaint has been filed in federal court on behalf of Plaintiff Gregory Flynt Taylor against Peter Duane Deaver and other former employees of the North Carolina State Bureau of Investigation seeking damages for his wrongful incarceration.  The complaint may be viewed here.

In April 1993, Mr. Taylor was wrongfully convicted and sentenced to life in prison for a murder two years earlier which he did not commit.  The Defendants worked in the SBI Crime Lab and wrote a deliberately misleading report about evidence collected from the crime scene.  Because this report misrepresented the facts and the findings of the laboratory tests, Mr. Taylor was convicted of a crime he did not commit and spent the next 17 years in prison.  On February 17, 2011 a three-judge panel unanimously found that Mr. Taylor was innocent of the charge of murder and ordered his immediate release.  Mr. Taylor was given a full Pardon of Innocence by Governor Beverly Perdue on May 21, 2010.

Mr. Taylor’s complaint brings claims under the federal constitution, North Carolina Constitution, and North Carolina common law.  Mr. Taylor is represented by Burton Craige and Narendra Ghosh, as well as Spencer Parris and Christopher Olson at Martin & Jones.

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Briefs Filed in Dail v. City of Goldsboro

The following briefs opposing defendants’ motion to dismiss have recently been filed in Dail, v. City of Goldsboro, et al.: Plaintiff’s First Response Brief and Plaintiff’s Second Response Brief.  Mr. Dail was convicted of a crime he did not commit and subsequently imprisoned for 18 years.  He was exonerated in 2007 when DNA evidence proved his innocence.  This evidence – which was later recovered – had been improperly handled and allegedly destroyed in 1995 by the City of Goldsboro.  The case is now before Judge Boyle in federal court (EDNC). Mr. Dail is represented by Burton Craige and Narendra Ghosh of Patterson Harkavy, as well as Spencer Parris and Christopher Olson at Martin & Jones.  More on the case can be found here.  This a summary of Plaintiff’s argument:

Dail has properly stated cognizable claims for relief arising from his wrongful incarceration. Dail has stated a valid claim for municipal liability under 42 U.S.C. § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978), because Defendants had a policy or practice of failing to properly inventory and safeguard evidence, including the evidence that ultimately exonerated Dail. Defendants’ unconstitutional conduct arbitrarily denied Dail’s liberty interest and resulted in his continued wrongful incarceration. Unlike the plaintiff in District Attorney’s Office for Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009), the principal case upon which Defendants rely, Dail has not impermissibly used § 1983 to seek access to potential evidence, but instead properly invokes § 1983 to redress Defendants’ unconstitutional failure to reasonably maintain evidence.

Dail has also properly brought state law claims for negligence and obstruction of justice, which are not time-barred. Those claims did not accrue until August 27, 2007, when Defendants first notified Dail of the results of the DNA testing, or on August 28, 2007, when Dail was finally released from custody, and thus were timely filed on August 26, 2010. Finally, Dail has stated valid claims under the North Carolina Constitution based on Defendants’ violations of his rights to procedural due process and entitlement to exculpatory evidence.

This case presents weighty issues of constitutional significance in an evolving area of law. Consideration of the merits of the claims asserted in this action should follow development of a full factual record.

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Forsyth County Win!

On Monday, December 6, firm partners Leto Copeley (Chapel Hill) and Ann Groninger (Charlotte) obtained a $250,000.00 verdict in Forsyth County Superior Court on behalf of their client, Thomas M. Sprinkle, against Hammaker East Emulsions, LLC, an asphalt manufacturing company.

Mr. Sprinkle was working for his employer Blythe Industries as a tack distributor truck driver on December 3, 2008, the day of his injury.  That morning his truck was empty and he drove to Hammaker East to have the truck loaded with tack.  After directing him to the loading dock and inserting the pipe into his truck, a Hammaker employee told Mr. Sprinkle that the pipes were clogged and it would be a little while before the tack started flowing.  Mr. Sprinkle remained on top of his truck, as he normally did, waiting for the tack to flow.  What he did not know, because Hammaker employees failed to tell him, was that, when the clog loosened, it would come out with a big “kapow.”  He also did not know that, in addition to blowing air through, and heating the pipes, the Hammaker employees left on the valve that allowed tack to flow from their system into Mr. Sprinkle’s truck.  When the clog finally loosened, the pipe came bursting out of the truck, spraying tack all over the truck and Mr. Sprinkle and knocking Mr. Sprinkle more than 10 feet to the ground.

Mr. Sprinkle’s knee was “pulverized” according to his doctor.  He had a complicated surgery to reconstruct his knee, a long period of recovery, and will likely need knee replacement surgery in the future.  After knocking him off his truck, Hammaker employees left Mr. Sprinkle sitting outside in the below-freezing temperature, until his supervisor arrived and called 911.  There was testimony that Hammaker’s plant manager, Bryan Miller, was slurring his words and reeked of alcohol immediately after Mr. Sprinkle’s fall.

Attorneys Valerie Johnson and Narendra Ghosh and paralegal Elizabeth Weatherspoon provided valuable assistance throughout the trial.

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Complaint Filed on Behalf of Dwayne Allen Dail

A civil rights complaint was filed this month on behalf of Plaintiff Dwayne Allen Dail against the City of Goldsboro and individual defendants to seek redress for his wrongful incarceration.  The complaint may be viewed here.

Mr. Dail was arrested on May 13, 1988 for the rape of a 12 year old girl.  He maintained his innocence from the date of his arrest onward and insisted that evidence collected from the crime scene be tested against his DNA.  After Mr. Dail’s conviction, the City of Goldsboro reported that the evidence had been destroyed.  Eventually, in 2007, after repeated requests for this evidence, the Goldsboro Police Department acknowledged that, contrary to their previous representations, they were in fact in possession of the evidence from the crime scene.  The DNA evidence was tested against Mr. Dail’s DNA and he was finally exonerated after 18 years of imprisonment and set free.

Mr. Dail’s complaint brings claims under the federal constitution, North Carolina Constitution, and North Carolina common law.  Mr. Dail is represented by Burton Craige and Narendra Ghosh, as well as Spencer Parris and Christopher Olson at Martin & Jones.

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Burton Writes on Comparative Fault Legislation

Burton Craige has published an article entitled “The Road to Comparative Fault in North Carolina” in this month’s issue of The Litigator, the regular publication of the North Carolina Bar Association’s Litigation Section.

Summary:  North Carolina is one of only five jurisdictions that retain the antiquated doctrine of contributory negligence. Here, as in Alabama, Maryland, Virginia and the District of Columbia, a plaintiff whose negligence makes the slightest contribution to his injury is barred from recovering any damages against the tortfeasor. The other 46 states, either by judicial decision or by statute, have adopted some form of comparative fault, allocating damages based on the degree of fault among the plaintiff and the defendants.

In May 2009, the North Carolina House of Representatives passed a bill that would abolish contributory negligence, adopt a system of modified comparative fault, and modify joint and several liability.  Modeled on the Uniform Apportionment of Tort Responsibility Act (UATRA), the bill attracted bipartisan sponsorship and support.  After the sponsors agreed to several last-minute amendments that favored defendants, the bill (HB 813) passed by a margin of 67-50, overcoming strong opposition from business and insurance interests.

In the 2010 session, the North Carolina Senate will consider HB 813.  If the bill passes the Senate, it will end the long, harsh regime of contributory negligence, and bring North Carolina tort law into the modern era.  This article discusses the provisions of UATRA, the amendments adopted in the House, and the principal objections to the bill.

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NC Court of Appeals on Line Between Medical Malpractice and Ordinary Negligence

The North Carolina Court of Appeals issued an opinion on February 16, in Deal v. Frye Regional Medical Center, addressing the line between medical malpractice cases and ordinary negligence cases.  There are special requirements on plaintiffs who file malpractice claims, unlike negligence claims, so the line is important.  In this case, the decedent had been admitted and was being cared for because of a heart attack and other problems.  During his stay, however, the nurses failed to conduct a Fall Risk Screen Assessment (“FRSA”) and failed to implement a fall risk safety policy to protect decedent from falling.  Subsequently, the decedent fell out of his hospital bed and fractured his right hip, which required surgery and rehabilitation.  The Court held that the potential negligence here — the failure to conduct the FRSA — was a professional activity of the nurses, involving clinical judgment, and therefore made the claim one of medical malpractice, not just negligence.

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NC Court of Appeals’ Latest Decisions on Workers’ Compensation and Personal Injuries

Last week, the North Carolina Court of Appeals published four opinions concerns concerning workers’ compensation and personal injury cases.  In Berardi v. Craven County Schools, the Court considered and described the Industrial Commission’s new process for expedited medical motions, which speed up resolution of medical treatment disputes in workers’ compensation cases.  At issue was whether the employer could appeal a decision of the Commission granting one such motion.  The Court held that it could not because the order was interlocutory, i.e. it did not resolve all issues, the usual prerequisite for appeals.

In Freeman v. Rothrock, the North Carolina Supreme Court had sent the case back to the Court of Appeals after reversing it and rejecting the judicial creation of a bar to recovery of worker’s compensation benefits when an employee made misrepresentations at the time of hiring about his physical condition.  On remand, the Court addressed the other appealed issues from the Commission, and affirmed the Commission’s conclusions that the plaintiff is entitled to ongoing total disability benefits and that the employer is not entitled to a credit based on previous clinchers (settlements) with the plaintiff.

Read more…

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