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.

Categories: News of the Firm Tags: Burton Craige, Civil Rights, Complaint, Constitutional Law, Exoneration, Narendra Ghosh, Negligence, Personal Injuries, Wrongful Conviction, Wrongful Incaceration

Last year, the State expanded the coverage of the North Carolina Guaranty Association to include structured settlement annuitities for North Carolina residents.   This is especially important for people who receive annuities as part of a workers’ compensation or personal injury settlement.  Coverage here.  One part of the new law’s language was less than clear, which required an amendment.  The amendment makes clear that annuity protection runs to the benefit of the actual beneficiary, the “payee” of the policy.  The text can be found here.  The amendment was enacted during the legislature’s short session this summer and signed by the governor.  Hank Patterson and Narendra Ghosh assisted with the legislative effort.

Categories: Legislative Action Tags: Hank Patterson, Legislation, Narendra Ghosh, NC Legislature, North Carolina, Personal Injuries, Structured Settlements, Workers' Compensation

The North Carolina Supreme Court issued its latest round of decisions on April 15.  Two cases are worthy of note.  In the first, Brown v. Kindred Nursing Centers East, the 4-3 majority ruled that a plaintiff’s medical malpracitce complaint had to be dismissed because the plaintiff did not properly comply with the 120-day extension procedure of Rule 9(j) — the special rule for medical malpractice cases requiring the certification by a physician of the validity of the complaint.   As the dissent pointed out, the majority’s opinion was both wrong on the merits, and especially harsh because the plaintiff filed his original complaint pro se.

In White v. Thompson, the Court (again over a dissent by Justice Hudson) held that the plaintiff did not state a valid claim under the Unfair and Deceptive Trade Practices (UDTP) Act.  The case was between former business partners in a partnership.  The Court concluded that the UDTP does not cover actions in a business’s internal operations.  This continues a line of cases carving out most employment law disputes from the purview of the UDTP Act.

Categories: Judicial Decisions Tags: Case Commentary, Justice Hudson, Labor and Employment, Medical Malpractice, NC Supreme Court, Personal Injuries, Rule 9(j), UDTP

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.

Categories: News of the Firm Tags: Articles, Burton Craige, Comparative Fault, Contributory Negligence, NC Legislature, NCBA, Negligence, Personal Injuries, UATRA

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.

Categories: Judicial Decisions Tags: Case Commentary, Medical Malpractice, NC Court of Appeals, Negligence, 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…

Categories: Judicial Decisions Tags: Appeals, Bicycle Accidents, Car Accident, Case Commentary, Clinchers, Disability Benefits, Governmental Immunity, Industrial Commission, Medical Motions, Negligence, Personal Injuries, Workers' Compensation

Four of Patterson Harkavy’s attorneys have been named North Carolina “Super Lawyers” for 2010 in a recent study by Law & Politics magazine.  The findings are published in the February 2010 edition of the North Carolina Super Lawyers magazine.

Patterson Harkavy’s 2010 North Carolina “Super Lawyers” are:

• Burton Craige — Personal Injury: Medical Malpractice
• Hank Patterson — Workers’ Compensation
• Michael Okun — Labor & Employment Law
• Jonathan Harkavy — Alternative Dispute Resolution

In addition, Jonathan Harkavy was named to the list of the Top 100 attorneys in North Carolina.

Law & Politics conducts a regional survey of lawyers who have been in practice for at least five years, asking them to nominate the best attorneys they’ve personally observed in action.  In addition, the magazine’s attorney-led research department reviews nominees’ credentials based on a set of evaluation criteria.  To ensure a diverse and well-balanced list, the research staff considers factors such as firm size, practice area and geographic location.

Categories: News of the Firm Tags: Burton Craige, Hank Patterson, Jonathan Harkavy, Labor and Employment, Leto Copeley, Medical Malpractice, Michael Okun, Personal Injuries, Recognition, Super Lawyers, Valerie Johnson, Workers' Compensation

On December 8, the North Carolina Court of Appeals published a couple of workers’ compensation decisions. In the first, Heflin v. G.R. Hammonds Roofing, the Court faced an unusual situation involving Florida’s workers’ comp laws and a plaintiff’s efforts to delay her own case. Plaintiff’s husband was killed while working in Florida in 2004. Because the plaintiff’s workers’ comp claim in Florida was initially denied, she pursued a wrongful death claim instead, as allowed under Florida law. To keep that suit going, she did not want to pursue a possible workers’ compensation claim in North Carolina. However, when she tried to stay her case in North Carolina, the Industrial Commission ignored her request. The Court vacated the Commission’s decision and remanded, holding that the plaintiff’s motion for a stay must be addressed, and hinting that it should be granted.

In Van Dyke v. CMI Terex Corp., the Court again dealt with the exclusivity of workers’ compensation claims, i.e. that the availability of workers’ compensation bars personal injury lawsuits against the employer and certain related parties.  In this case, the plaintiff brought suit because the decedent had been killed in an explosion at his workplace.  At issue was whether a particular defendant was sufficiently related to the employer so that the personal injury case against it was barred.  The defendant was the sole shareholder of an LLC (limited liability company), which was a member-manager of the employer, also an LLC.  Long story short, because the appealing defendant was not running the employer-company, and was not sued for doing so, the exclusivity of workers’ compensation did not protect it.

Categories: Judicial Decisions Tags: Case Commentary, Industrial Commission, NC Court of Appeals, Personal Injuries, Workers' Compensation, Wrongful Death

In the current debate about health care reform, we hear a renewed call by medical and insurance lobbyists, politicians, and media pundits for “malpractice reform.”  These ardent reformers do not seek to reduce medical malpractice or improve patient safety.  Instead they seek to block access to the courts for the families of patients who have been injured or killed by medical errors.

A woman in Charlotte recently responded to this misguided campaign.  In an op-ed article published in the Charlotte Observer, Laurie Sanders explained why she has a special interest in the subject:

Read more…

Categories: General News Tags: Burton Craige, Defensive Medicine, Medical Malpractice, Personal Injuries, Tort Reform

The North Carolina Supreme Court denied the defendants’ petition for discretionary review (PDR) in Fulford v. Jenkins today, among its long list of orders.  This is a wrongful death action based on the negligence of the Duplin County Department of Social Services and its employees.  The defendants lost on the issue governmental immunity, appealed, lost unimously in the Court of Appeals, and then sought review from the Supreme Court.   Burton Craige and Narendra Ghosh assisted with the plaintiff’s representation at the Supreme Court, opposing the PDR.  The Court’s denial of the PDR means that the case will return to the trial court where it can proceed.

Categories: Judicial Decisions, Results Tags: Appeals, Burton Craige, Civil Rights, Narendra Ghosh, NC Supreme Court, Negligence, Personal Injuries, Results, Wrongful Death