— Posts About Personal Injuries

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.”

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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.

 

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

NC COA Addresses Exception to Workers’ Comp Preemption

In Trivette v. Yount the defendant, a middle school principle, had a fire extinguisher removed from a classroom after a student had removed the safety pin and discharged the extinguisher.  The fire extinguisher was brought to the front office to avoid any further incident.  The following day the defendant placed the fire extinguisher on or around the plaintiff”s desk in the front office.  The plaintiff alleged that he was joking around with the fire extinguisher and when asked to stop joking “before it went off” said to the plaintiff, “Oh, you’re being such a baby, nothing is going to happen.”  The fire extinguisher discharged and sprayed the plaintiff’s body and face aggravating her preexisting neuro-muscular condition and causing extensive injury.

At issue in this case is the plaintiff’s attempt to seek damages from the defendant directly in a personal injury action under the Pleasants exception.  The defendant contends that he was Ms. Trivette’s employer and thus her relief is limited only to the Workers’ Compensation Act.  The Court of Appeals affirmed the trial court’s decision, stating that though the defendant was Ms. Trivette’s immediate supervisor and an administrator, he is not given the authority to “employ” any person as outlined in N.C. Gen. Stat. §115C-288.  Therefore, the defendant was a co-employee and not the employer.  The Court also found sufficient evidence that he acted in a willful, wanton and recklessly negligent manner because he knew that there was a risk of the extinguisher accidentally discharging and was asked not to joke around with it, but continued to do so causing harm to the plaintiff.

Categories: Judicial Decisions 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.

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Burton Speaks About the New Medical Malpractice Legislation

Burton Craige addressed another bill passed in the North Carolina General Assembly this session with his paper entitled “SB 33: The Brave New World of Malpractice Litigation” where he summarizes Senate Bill 33, shows its evolution and addresses some of the possible constitutional challenges that it may face.  He spoke about his paper at a CLE hosted by the North Carolina Advocates for Justice in Raleigh on August 31, 2011.

Introduction:

On July 25, 2011, the North Carolina House of Representatives, by a vote of 74-42, overrode Governor Perdue’s veto of the medical malpractice bill (SB 33). The enactment of SB 33 culminated an intense six-month legislative battle.

When the Act becomes effective on October 1, 2011, a new era of malpractice litigation in North Carolina will begin. Injured patients, who already face formidable barriers, will find it harder to find a lawyer, pursue their claims, and recover adequate compensatory damages. Lawyers and judges will be forced to decipher complex new statutory language.  Courts will confront constitutional challenges to the bill’s most controversial provision, the $500,000 cap on noneconomic damages.

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Burton Presents “Billed v. Paid” Paper

Burton Craige authored a paper this month titled “Billed v. Paid: Present, Past, Future”.  Burton presented his paper this month at the North Carolina Advocates for Justice CLE, “Bill v. Paid: Counting the True Cost.”  His paper discusses the way the “Billed v. Paid” issue is handled in other states and how North Carolina’s law has changed over the years.

Introduction:

In June 2011, the North Carolina General Assembly enacted HB 542, titled “Tort Reform for Citizens and Businesses.”  Section 1.1 of HB 542 creates a new rule of evidence (Rule 414) that limits evidence of past medical expenses to “the amounts actually paid to satisfy the bills” and “the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied.”  Section 1.2 amends G.S. § 8-58.1, limiting the plaintiff’s testimony about reasonable medical expenses to the amount “paid or required to be paid in full satisfaction” of the charges. In combination, the new provisions, commonly referred to as “billed v. paid,” will significantly reduce the amount that injured plaintiffs can recover for their medical expenses.  The billed v. paid provisions are effective for all actions “arising on or after” October 1, 2011.

In the past decade, many states have confronted the billed v. paid issue in their appellate courts.  A handful of states have addressed the issue legislatively.  This paper reviews the experience in other jurisdictions, traces the evolution of billed v. paid in North Carolina, and identifies a potential constitutional challenge to the new legislation.

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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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