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Jay Kerr fights to help brain-injured NC Highway Patrol Officer

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Truck Accident: $450,000.00 confidential settlement of negligence claims against nationwide cargo trucking company for severe bodily injuries sustained in rear-impact collision.

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Case Type: Cargo Truck Collision – Spinal Injuries

Lawsuit Filed: Yes – Buncombe County Superior Court

Liability Issues: Sudden emergency defense and injury proximate cause

Damages Issues: Nature and extent of injuries

Summary: Defendants (a nationwide cargo delivery company, independent contractor truck owner, and truck driver) alleged that truck driver faced an unexpected sudden emergency when the truck braking system failed to function, causing the rear-end collision into the Plaintiff’s passenger vehicle which was stopped at an signaled intersection waiting to make a left-hand turn.   Pursuant to plaintiff counsel investigation, Plaintiff alleged that the truck driver and owner had prior notice that the braking system had been malfunctioning immediately prior to the collision, but that reasonable care was not used to ensure repair of the braking system before the truck was operated. Consequently, based on applicable law, Plaintiff alleged that the truck driver would not have a valid defense if the purported sudden emergency was created by the Defendants’ negligence or otherwise preventable.

The Plaintiff had a history of low-back pain (lumbago) which was aggravated by periodic, strenuous activities.  In that vein, the Defendants alleged that not all of the Plaintiff’s purported injuries were causally related to the collision events but were due to pre-existing conditions that caused prior symptoms. However, Plaintiff alleged that she sustained significant spinal trauma in the collision to her soft-tissues and vertebral joints, aggravating such pre-existing conditions but causing resultant chronic pain which necessitated implantation of a spinal cord stimulator.

In response to the subject issues, Plaintiff counsel provided the Plaintiff’s complete medical history and evidence regarding the nature and extent of the collision to her treating pain management physician, who consequently provided expert opinions that supported a causal relationship between her chronic pain and the collision trauma.

Plaintiff did not sustain any significant wage loss since her retirement essentially coincided with the collision. However, her chronic pain has affected her ability to fully engage in activities of daily living and especially her retirement travel plans.

Resolution Date: August 2016.   The claims resolved after initial formal discovery had been completed, which provided the Defendants all relevant and material information within the Plaintiff’s possession regarding the key case issues.

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Pedestrian Accident: $150,000.00 confidential settlement of negligence claims against corporate companion care provider for severe injuries to 85 year old patient who was run over by car operated by employee.

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Case Type:  85 year old patient run over by personal vehicle operated by corporate companion care provider-severe pelvic fractures

Lawsuit Filed:  Yes – Buncombe County

Liability Issues: Defendant alleged that Plaintiff had signed a full release of any and all claims arising from the use and operation of any vehicle by its employee pursuant to engaging its companion care and transportation services. The Plaintiff challenged such purported release as being void and unenforceable based on North Carolina public policy as applied by the appellate courts. After Plaintiff filed a motion to dismiss such defense regarding the purported release, in conjunction with filing a comprehensive legal brief in support of Plaintiff’s argument, the Defendant agreed to dismiss the defense.

Defendant further alleged that it was not negligent because its employee had used reasonable care in operating the Plaintiff’s vehicle and that the Plaintiff otherwise was contributorily negligent.

Damages Issues:  Plaintiff required trauma hospitalization and an extended stay at a rehabilitation hospital and incurred medical expenses of approximately $50,000.00. However, he further alleged that due to his traumatic injuries his need for additional home companion care services increased causing him to incur additional, unexpected expenses. The Defendant alleged that such services otherwise had been expected prior to the Plaintiff’s traumatic injuries.

Summary: An employee of the corporate Defendant presented to the Plaintiff’s residence at an Asheville apartment complex to provide companion and transportation services. The Plaintiff and the employee, along with the Plaintiff’s wife, walked from the Plaintiff’s apartment unit to the adjacent parking lot in order that the employee could transport the Plaintiff and his wife on personal errands via the employee’s use of the Plaintiff’s car. According to the Plaintiff, the employee stated she could not get the car to go in reverse, so he agreed to get out of the car and see if he could help. According to the Plaintiff, he walked around the car as the employee exited the driver’s seat, and immediately saw that the parking brake was engaged. He contends he reached into the car, pulled the brake lever, and, suddenly without any warning, the car began to move backwards, knocking him to the pavement as the front left wheel rolled over his torso and pelvic region.

The Plaintiff alleged that the employee had exited the car with the gearshift in the reverse position without his knowledge. The employee alleged that the Plaintiff actually entered the car, sat in the driver’s seat, released the brake, and then tried to exit after the car began moving backwards, thereby contributing to the cause of his injuries. Plaintiff disputed the employee’s version of the events. Plaintiff counsel argued that the employee was negligent not only by leaving the vehicle running with the transmission in reverse, but ultimately failing to instruct the Plaintiff not to exit the car under such circumstances of which only she was aware.

Resolution Date: January 2017

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Settlement of Negligence Claims against local BSA Troop

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General Negligence

Confidential settlement of negligence claims against the Boy Scouts of America, Daniel Boone Council, and Troop 605 in Western North Carolina pursuant to allegations of preventable sexual abuse of a 13 year old Scout by a 15 year old Scout during a summer camp – January 2015

The guardian ad litem and parents of a 13 year old former Scout alleged in their lawsuit that the younger Scout had been sexually exploited and assaulted by an older Scout at a summer camp organized by the regional troop. The plaintiffs alleged that the defendants had reasonable notice of purported, relevant prior behaviors by the older Scout which made the assault reasonably foreseeable, but that each failed to take reasonable and necessary measures to prevent the traumatic incident, which should have included heightened supervision if not prior refusal or revocation of the older Scout’s membership.

The defendants denied any negligence and specifically alleged that the minor Scouts had actually engaged in consensual and secretive sexual behaviors which were neither foreseeable to nor reasonably preventable by the Troop’s adult leadership, and that all reasonable and necessary supervision and safety measures had been installed.

The Boy Scouts of America specifically denied that it exercised any control over the specific, if any, Troop scouting activities and, thus, alleged it was not imposed with any direct duties to protect the minor Scout from the alleged activities. Furthermore, theBoy Scouts of America alleged that it did not have any relevant knowledge of behaviors, circumstances, or events which potentially could have imposed upon them any such duties. The Daniel Boone Council similarly denied that it exercised any control over the Troop activities or had any notice of behaviors or incidents which would otherwise impose a direct duty upon them for the safety of the minor Scout or any other Scouts from such alleged sexual abuse. The Troop 605 leadership denied any and all negligence and specifically asserted that the preponderance of the evidence was that the minors engaged in consensual sex that violated Scouting rules and principles but which Troop leadership could not reasonably foresee and prevent under the specific circumstances.

Court motion by the Boy Scouts of America and the Daniel Boone Council to be dismissed from the lawsuit was denied by the Court, and the case settled immediately prior to pre-trial motions and jury selection.

Medical experts for the plaintiffs, including the young boy’s treating psychiatrist, testified at their depositions that the minor suffered from post-traumatic stress disorder (PTSD) as a direct result of the purported sexual exploitation and assault, and that he would likely require therapeutic counseling and other psychological/psychiatric care over his lifetime posing significant expenses.

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Wrongful Death – Bus/Pedestrian Collision – LawyersWeekly.com

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Motor-Vehicle Collision

Bus fatality highlights fuzzy area of immunity
Is transportation a proprietary or governmental function?

North Carolina appellate law addresses questions of governmental immunity for counties and cities in a variety of situations. But a lawsuit that centered on an 87-year-old pedestrian who died after an Asheville city bus hit him left attorneys on both sides stumped.

“We agreed at the mediation that there was not a case on point,” said attorney Jay Kerr, who represented the plaintiff. “There’s not a North Carolina appellate court case that has interpreted whether or not a transportation system is a proprietary or governmental function. Motions for summary judgment would have been immediately appealable because they would have been appealed on right … This particular issue is ripe and waiting for a case.”

Hoping to avoid the uncertainty of the appellate process, the city settled with the estate of the deceased, James Stroupe, for $485,000.

Joe McGuire, who represented the city, said North Carolina courts have established government immunity for counties and cities in cases involving police vehicles, ambulances and other service vehicles, but not for cases involving bus systems.

“The doctrine is somewhat uncertain at this point,” McGuire said.

An Asheville Transit System bus hit Stroupe on Oct. 27, 2010 , as he walked across a parking lot from his car to a grocery store. He died nine days later of injuries sustained in the accident. Kerr alleged that the city failed to use reasonable care in monitoring the hiring of the bus driver and in retaining and supervising him. Under North Carolina law, cities cannot negotiate with unions, so many cities hire private companies to manage bus drivers. Asheville contracted with First Transit Inc. to manage the drivers, and that contract indemnified the company of liability regarding drivers. McGuire said the city has a policy of paying out-of-pocket expenses for anyone injured in an accident for which their bus drivers are responsible, regardless of sovereign immunity.

The bus driver, Tolley Tate, pleaded guilty to a charge of misdemeanor death by vehicle. McGuire said the city acknowledged that the driver hit Stroupe and that the accident was due to the driver’s inattention. Kerr asserted that the design of the bus route through the shopping center parking lot played a part in the accident as well.

The lawyers traded written arguments before the mediation. At one point, Kerr noted the North Carolina appellate courts’ “modern tendency to restrict the application of governmental immunity.” He wrote that in the 1970s and ’80s, the North Carolina legislature expanded and clarified statutes regarding how government activities are defined as public enterprises. The courts have since declared enterprises such as sewage systems, trash collection, landfills and airports to be proprietary and not afforded governmental immunity.

At mediation, Kerr also presented a commissioned seven-minute video documentary of Stroupe’s life, which Kerr described as “‘The Notebook’ meets ‘The Greatest Generation.’” Stroupe survived military action in World War II, the Korean Conflict and Vietnam, and in his later years nursed his first wife through her battle with Alzheimer’s. In Asheville, Stroupe visited schools and got involved in local issues. He was survived by his second wife and an adult daughter.

Determining a dollar figure for that life was a bit tricky, Kerr said. He said the negotiations began at around $800,000.

“It’s hard to assess the value of an 87-year-old whose life expectancy may be five or six years,” he said.

Kerr said Stroupe’s pension and income from military disability and Social Security figured into the equation, as did his continuing activity and family life.

 

Verdicts & Settlements Report

Type of action: Wrongful death

Case name: Richard E. Stroupe, Executor for the Estate of James D. Stroupe v. City of Asheville; Transit Management of Asheville; First Transit and Mr. Tolley Tate

Mediator: Wayne P. Huckle, Huckle Law Mediations & Arbitrations

Settlement: $485,000

Date of settlement: March 1, 2012

Attorneys for plaintiff: Jay Kerr (Asheville)

Attorneys for defendant:

Joe McGuire of McGuire, Wood & Bissette (Asheville)

 

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Plaintiff Verdict – Hospital Malpractice – LawyersWeekly.com

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Medical Malpractice

Hospital settles suit for failing to diagnose ‘Valley Fever’
By PAUL THARP, Staff Writer
paul.tharp@nc.lawyersweekly.com

When Thanh Cong Le visited his family in San Jose, Calif., in late 2006, he had no idea he may have been exposed to fungal spores that cause coccidioidomycosis, a lung disease known as “Valley Fever.”

He felt ill enough on his return home to western North Carolina that he sought treatment at Highlands-Cashiers Hospital.

Le was seen by Dr. Mark Stephen Wagner, who ordered a chest radiograph that was reviewed and interpreted by Highlands-Cashiers’ board-certified radiologist, Rodney Stinnett.

Stinnett saw a “Diffuse micronodular pattern… associated with tuberculosis or acute histoplasmosis. … These findings must be correlated clinically” with Wagner’s diagnosis of pneumonia.

Stinnett said he met with Wagner personally to explain the discrepancy. Wagner denied meeting with Stinnett and said he never saw the radiology report.

Le’s condition worsened, and within two months he was dead at age 24.

The administrator of Le’s estate, his mother, brought suit against Highlands-Cashiers Hospital, Dr. Wagner, Dr. Waverly S. Green and Green’s medical practice, alleging that the hospital, Wagner and Green failed to timely diagnose and treat Le for a fungal lung infection which led to his death.

A Jackson County jury found the hospital liable last month in Nguyen v. Highlands-Cashiers Hospital Inc ., but it cleared Dr. Wagner. Dr. Green was dismissed from the case before trial.

KerrJudge James U. Downs bifurcated the liability and damages phases of the trial, and the hospital settled with Le’s estate before trial on the issue of damages.

The terms of the settlement were confidential, said Asheville attorney Jay Kerr, who represented Le’s estate.

“The major significance of this case involves the corporate negligence theories we advanced and supported with evidence, and which the jury clearly based its verdict upon,” Kerr told Lawyers Weekly. “We did not present a Rule 9(j) case against the hospital. We didn’t have a Rule 9(j) expert, nor did we plead the case in that manner.”

NorhupAsheville attorney Isaac Northup, who represented Green, said Le’s administrator brought the suit as a malpractice claim against the hospital for not following its own policies.

“They had a 9(j) expert and tried the case as a standard malpractice case,” Northup said. “I don’t look at it as corporate negligence as much as the failure of an employee to follow corporate policy.”

SmithKerr’s co-counsel, Martinsville, Va., attorney Fred D. Smith Jr., said the Nguyen case was the first one he had tried where the plaintiff relied strictly on the failure of a hospital to follow its own policies and procedures for reporting important patient information from radiographs to the appropriate physician.

The Joint Commission on the Accreditation of Health Care Organizations requires hospitals to develop policies and procedures for certain activities, Smith said. “Recognizing and reporting discrepancies in X-ray reports would be standard in every accredited health-care facility,” he said.

Fatal discrepancy

Dr. Stinnett testified that he reported the discrepancy in the radiology report personally to Dr. Wagner. Wagner denied meeting with Stinnett. He said he didn’t learn of the discrepancy until a month later and never received the radiology report. If he had received it, he said, he would have taken action.

At trial, Le’s administrator pointed out that Stinnett had a duty, pursuant to hospital policy, to fill out a discrepancy report. Stinnett admitted that he did not produce a report.

Coles“This was a situation in which the doctors said two diametrically opposed things,” said Greensboro attorney Stephen Coles, who represented Wagner. “The radiologist [Stinnett] said he told Dr. Wagner, but there was no documentation to support that. He admitted the hospital’s policy was to prepare a report when there was a discrepancy between how the X-rays were interpreted, and he didn’t prepare one. The jury believed Dr. Wagner.”

Stinnett’s failure to fill out a discrepancy report formed the basis of Nguyen’s claim against the hospital.

Smith said the case was “different from what we usually do” in a standard medical malpractice case. “The members of the jury understood the consequences of failing to follow policies and procedures,” he said.

Kerr agreed. “We didn’t need to bring in an expert to explain what a reasonably prudent hospital should do with its own policies.”

He did use an expert – Dr. Lawrence Mirels of California – in the case. Mirels concluded that a more timely diagnosis and treatment of the coccidioidomycosis would have prevented Le’s death.

“The defense called an international expert on causation who testified that by the time Mr. Le presented to the emergency room, the coccidioidomycosis had already moved from his lungs to his brain, and no treatment would have stopped the cascade towards his eventual death,” Kerr said.

TarletonThat expert was John Galgiani, of Tucson, Ariz., according to Asheville attorney Allan R. Tarleton, who represented the hospital.

At the close of evidence, Nguyen made a motion to amend the complaint to conform to the evidence regarding Stinnett’s failure to follow hospital policies and procedures. The court granted the motion.

Tarleton said the hospital opposed the motion and moved for a directed verdict. The trial court permitted Nguyen to amend the complaint and denied the hospital’s motion for a directed verdict.

Then, Tarleton said, when the trial court gave its instructions to the jury, it gave an instruction based on the ordinary negligence standard.

Citing Tripp v. Pate , 49 N.C. App. 329 (1980), and Waters v. Jarman , 144 N.C. App 98 (2001), Tarleton said that determining the standard of negligence to employ depends on the nature of the hospital’s policies and procedures that a plaintiff contends were not followed.

“In that context there are two kinds of corporate negligence,” Tarleton said, “negligence relating to policies and procedures in clinical care, and negligence relating to policies and procedures that govern the administration and management of a hospital.”

The process of reporting X-ray results, Tarleton said, involves patient care and requires a statutory instruction on the medical malpractice standard of care, which is higher than the ordinary negligence standard.

“We were entitled to an instruction that expert testimony was required, and we didn’t get it,” Tarleton said.

Who gets damages?

Le’s heirs were either his mother or his three children, based on the intestacy statute and depending on a legal determination of the validity of Le’s marriage, Kerr said. He said Le “had a cultural marriage ceremony with the mother of his children,” but the couple never legally married.

Defense attorneys alleged that Le’s children were illegitimate. Under state law, illegitimate children cannot inherit in certain circumstances, Coles said.

Coles said the inheritance issue was important to defense attorneys because it is difficult to try a case against a young widow and three small children. “If we showed Le was never legally married, the heir would have been the mother, not the young wife and children, who would have been more sympathetic to the jury,” he said.

Judge Downs bifurcated the liability and damages phases of the trial, with the consent of the parties, to determine whether any party was liable before deciding the issue of the identity of Le’s heirs.

But the case settled before the jury considered damages.

SETTLEMENT REPORT

Type of action: Medical malpractice; wrongful death

Injuries alleged: Economic and non-economic losses available to statutory beneficiaries pursuant to wrongful death of spouse and father.

Case name: Nguyen v. Highlands-Cashiers Hospital, Inc.

Case number: 09 CVS 261

Court: Jackson County Superior Court

Judge: James U. Downs

Verdict or settlement: Jury verdict as to the liability of Highlands-Cashiers Hospital; Settlement as to damages

Date: Oct. 1, 2010

Amount: Confidential

Demand: Confidential

Offer: Confidential

Insurer: Confidential

Experts: Dr. Lawrence Mirels, infectious disease specialist (Santa Clara, Calif.); John N. Galgiani, infectious disease specialist (Tucson, Ariz.); Eliot L. Siegel, radiologist (Baltimore); Dr. Ken Gilligan (Sylva); Dr. Mark Hess (Winston-Salem); Dr. William Woodruff III (High Point)

Plaintiff’s attorney: Jay Kerr (Asheville) and Fred D. Smith Jr. (Martinsville, Va.)

Editor’s note: The information in Lawyers Weekly’s verdicts and settlements reports was submitted by the counsel for the prevailing party and represents the attorney’s characterization of the case.

 

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