How to access the above link?
Return to nccourts.org
Return to the Opinions Page
TOMMY DAVIS NATHAN CAMERON, and
wife, LISA CAMERON,
Plaintiffs,
v
.
Wake County
No. 01 CVS 013529
MERISEL PROPERTIES, INC., and
BRIAN GOLDSWORTHY,
Defendants.
Hunton & Williams LLP, by Steven B. Epstein, John D. Burns,
and L. Neal Ellis, Jr., for Plaintiffs-Appellees.
Clausen Miller P.C., by Melissa A. Murphy-Petros and Edward M.
Kay; and Cranfill, Sumner & Hartzog, L.L.P., by William W.
Pollock, Jaye E. Bingham, and Dexter Campbell, III, for
Defendants-Appellants.
ARROWOOD, Judge.
Defendant, Merisel Properties, Inc., appeals from entry of
judgment and from the denial of pretrial and posttrial motions. We
affirm.
Merisel Americas, Inc., is a computer hardware and software
company with an office in Cary, North Carolina (the Cary facility).
Plaintiff Nathan Cameron (Cameron) worked at the Cary facility,which had a history of leaks and dampness, between December 1998
and April 2000. During this time he developed irreversible damage
to his vestibular system, which is the inner ear organ responsible
for balance. In 2002 Cameron and his wife, Plaintiff Lisa Cameron,
filed a complaint “alleging that they suffered injury from a toxic
workplace maintained by Merisel, Inc. (Merisel), Merisel
Properties, Inc. (Merisel Properties), Merisel Americas, Inc.
(Merisel Americas), and Brian Goldsworthy (Goldsworthy)
(collectively Defendants). Specifically, Plaintiffs alleged that
[D]efendants knew that the workplace at which Mr. Cameron was
employed was contaminated with toxic molds . . . [and] that due to
[D]efendants' failure to warn or to take action to correct the mold
problem, Mr. Cameron sustained debilitating, irreversible, and
disabling injuries.” Cameron v. Merisel, Inc., 163 N.C. App. 224,
225, 593 S.E.2d 416, 418-19 (2004) (Merisel I). Plaintiffs brought
claims against (1) Goldsworthy for willful and wanton conduct; (2)
Merisel and Merisel Americas under Woodson v. Rowland, 329 N.C.
330, 407 S.E.2d 222 (1991), for intentional misconduct
substantially certain to cause serious injury; and (3) Merisel
Properties for simple negligence under a theory of premises
liability. In addition, Plaintiffs sought punitive damages from
all Defendants, and Lisa Cameron brought a claim for loss of
consortium against all Defendants.
On 19 August 2002 the trial court granted Defendants' motion
to dismiss Plaintiffs' complaint. On appeal, this Court affirmed
the trial court's dismissal of Plaintiffs' Woodson claim as toMerisel and Merisel Americas; reversed the trial court's dismissal
of Plaintiffs' claim against Goldsworthy and the associated claims
for loss of consortium and punitive damages; reversed the trial
court's dismissal of Plaintiffs' premises liability claim against
Merisel Properties and associated claim for loss of consortium; and
affirmed dismissal of Plaintiffs' punitive damages claim against
Merisel Properties. The Court remanded for trial of Plaintiffs'
“claim against Goldsworthy and the related loss of consortium and
punitive damages claims[,] . . . as well as [P]laintiffs' premises
liability claim against Merisel Properties and the corresponding
loss of consortium claim.” Merisel I, 163 N.C. App. at 235, 593
S.E.2d at 424.
On remand, Plaintiffs sought sanctions against Defendant
Merisel Properties for abuse of discovery. By order entered 27
December 2005, the trial court sanctioned Merisel Properties by
barring it from raising any defense or offering any evidence that
the Cary facility was leased, and “establish[ing] as a fact” that
the building was not subject to a lease. Defendants' pretrial
motions for summary judgment and for exclusion of certain evidence
were denied. Prior to trial Plaintiffs dismissed their claim for
punitive damages.
The case was tried before a Wake County jury in March 2006.
At the close of Plaintiffs' evidence and again at the close of all
the evidence, Defendants moved for a directed verdict. Both
motions were denied. On 27 March 2006 the jury returned a verdict
finding Defendant Merisel Properties liable for damages of$1,600,000 for Cameron's claim and $200,000 for Lisa Cameron's loss
of consortium claim. Goldsworthy, who is not a party to this
appeal, was found not liable. Defendant's posttrial motions for
judgment notwithstanding the verdict (JNOV), a new trial, or
remittitur of damages were denied on 10 May 2006. Defendant
appeals from the entry of judgment; the denial of its pretrial
motions in limine and motion for summary judgment; and the denial
of its posttrial motion for JNOV, a new trial or remittitur.
“[a]lthough medical certainty is not required,
an expert's speculation is insufficient to
establish causation. Thus, could or might
expert testimony [is] insufficient to support
a causal connection when there is additional
evidence or testimony showing the expert's
opinion to be a guess or mere speculation.”
Singletary v. N.C. Baptist Hosp., 174 N.C. App. 147, 154, 619
S.E.2d 888, 893 (2005) (quoting Holley, 357 N.C. at 234, 581 S.E.2d
at 754) (internal quotations and citations omitted). “Indeed, in
order to be sufficient to support a finding that a stated cause
produced a stated result, evidence on causation 'must indicate a
reasonable scientific probability that the stated cause produced
the stated result.'” Phillips v. U.S. Air, Inc., 120 N.C. App.
538, 542, 463 S.E.2d 259, 262 (1995) (quoting Hinson v. National
Starch & Chem. Corp., 99 N.C. App. 198, 202, 392 S.E.2d 657, 659
(1990)).
In the instant case, Plaintiffs' evidence tended to show, in
relevant part, the following: Before Defendant purchased the Cary
facility in 1998, it obtained inspection reports indicating that
the building had pre-existing problems with moisture and leaking inthe building's windows and walls. Employees testified that they
had seen mold on walls and noticed leaks and unpleasant “musty”
smells in certain areas. Cameron began working at the Cary
facility in December 1998, and immediately noticed that the windows
in his office leaked during every rainstorm. The walls, carpeting,
and ceiling of his office all showed evidence of water damage,
including the presence of mold. These problems increased during
1999; the office next to Cameron's flooded, areas of carpeting in
the Cary facility were saturated with water, and mold spread on
some walls.
Several of Cameron's co-workers testified that they
experienced an array of respiratory, ear, nose, and throat
problems, including asthma, sore throats, eye irritation, sinus
congestion, frequent colds, hearing problems, and vertigo. These
employees notified Defendant Goldsworthy, who was responsible for
building maintenance. Goldsworthy in turn informed Defendant's
administrators, but the Cary facility's problems with mold and
moisture continued to worsen during most of 1999. Goldsworthy
expressed the opinion that employees who claimed their health
problems were related to moisture in the building were simply
trying to avoid work.
In early 2000, Defendant assigned Candace Jost Miller to
investigate and solve the moisture problems at the Cary facility.
Air quality tests performed in November 1999 confirmed the presence
of mold, and in January 2000 an employee lodged a complaint with
the North Carolina OSHA. Thereafter, Miller assumed responsibilityfor the building maintenance that previously was assigned to
Goldsworthy. In March 2000 further testing revealed the presence
of Stachbotrys mold in Cameron's office.
When Cameron started working for Defendant, he was in
excellent health. After working at the Cary facility for a few
weeks, Cameron started to have problems with balance and vision.
Over the following six months he suffered from periods of
dizziness, visual anomalies, problems with balance, and increasing
fatigue and difficulty concentrating. In July 1999 Cameron sought
emergency medical treatment at Western Wake Medical Center for his
condition. In the fall of 1999 he was diagnosed with permanent and
irreversible bilateral vestibular dysfunction, or loss of the
balance function in both inner ears. He was treated for vestibular
dysfunction by Dr. Joseph Farmer.
Dr. Farmer testified at trial as an expert in the field of
physiology of injuries or illnesses affecting the human ear. He
told the jury that he had tested Cameron and eliminated most known
causes of vestibular dysfunction, including brain tumor,
chemotherapy drugs, ototoxic chemicals, autoimmune illnesses,
Arnold-Chiari syndrome, syphilis, skull fracture, and other
diseases and agents that may damage vestibular function. Dr.
Farmer concluded that Cameron's bilateral vestibular dysfunction
was caused by ototoxicity, or poisoning of the ears. When he
reviewed the results of the air quality sampling performed at the
Cary facility in 2000, he learned that Cameron had been exposed to
toxigenic molds, including Stachybotrys mold. Based on Cameron'sexposure to Stachybotrys mold, the fact that Cameron's symptoms
were sometimes associated with the mold, and the fact that Dr.
Farmer had ruled out other known causes, Dr. Farmer concluded “that
the cause of [Cameron's] loss of vestibular function in both ears
was likely due to ototoxic _ to a mycotoxin from the Stachybotrys
fungus.” On cross-examination, Dr. Farmer reiterated that “my best
medical judgment is this was caused by the mold that he was exposed
to, and the data indicate that he would have had a significant
exposure.”
Dr. Farmer's medical notes provide further support for his
opinion. In Workman v. Rutherford Elec. Membership. Corp., 170
N.C. App. 481, 495, 613 S.E.2d 243, 252 (2005), this Court held
that Plaintiff's “expert evidence of causation exceeded
'speculation'” where the Defendant's “testimony of 'could or
might,' together with his impression recorded in his treatment
notes that [P]laintiff's [accident] 'more likely than not [was]
related to his injury' is competent evidence to sustain the
Commission's conclusion of law that [P]laintiff's [medical]
conditions were caused by the accident.” In the instant case, Dr.
Farmer's medical notes stated that “I advised [Mr. Cameron] that it
is my best medical judgment that the loss of balance function in
both vestibular end organs was likely related to the exposure to
toxic mold.”
Dr. Eckhardt Johanning testified as an expert in the area of
occupational and environmental medicine and the effects of mold on
human health. Johanning testified that “more likely than not” the“competent cause” of Cameron's disorder was his exposure to mold.
Plaintiffs also presented testimony from Dr. Tulis, who was
qualified as an expert in mold science and assessment, control, and
remediation of mold in indoor environments. Dr. Tulis testified
that Cameron was exposed to mold and mycotoxins at the Cary
facility, and that these presented a health hazard.
We conclude that Plaintiffs presented far more than a
scintilla of evidence that his bilateral vestibular dysfunction was
caused by exposure to mold in the Cary facility. Plaintiffs'
evidence easily passes the threshold to submit the issue of
causation to the jury, and thus the trial court did not err by
denying Defendant's motion for directed verdict and JNOV. We have
considered Defendant's arguments to the contrary and reject them.
Defendant argues that Dr. Farmer's opinion was based on “mere
conjecture and speculation.” As discussed above, Dr. Farmer
performed various tests on Mr. Cameron, and his notes indicate that
“neurological work ups including MRI scans of the cervical spine
and brain were unremarkable. There was no indication of other
causes such as Arnold Chiari Syndrome, multiple sclerosis, brain
tumor or posterior fossa tumor, or other degenerative central
nervous system disease. Also, there is no past history of known
ototoxic drug exposure.” Having eliminated the other causes of
Cameron's symptoms, Dr. Farmer concluded that Cameron's vestibular
dysfunction was most likely caused by ototoxicity, or poisoning of
the ear. Other evidence established that exposure to toxigenic
molds can cause vestibular dysfunction, and that Cameron had beenexposed to toxic mold at the Cary facility. When Dr. Farmer
learned this, he concluded that the ototoxin causing Cameron's
vestibular dysfunction was a mycotoxin, or mold byproduct, to which
Cameron was exposed at the Cary facility. Clearly, his opinion was
based on far more than speculation.
Defendant also urges that our determination of the sufficiency
of expert evidence of medical causation “depends upon the totality
of the evidence,” in support of which Defendant cites Poole v.
Copland, Inc., 125 N.C. App. 235, 481 S.E.2d 88 (1997), rev'd on
other grounds, 348 N.C. 260, 498 S.E.2d 602 (1998). However, Poole
does not hold that appellate review of expert medical causation
must include assessment of the totality of the evidence. Rather,
it addresses a situation not present in the instant case, when an
expert's testimony is limited to the opinion that something “might”
or “could” have caused a Plaintiff's condition: “Whether 'could' or
'might' will be considered sufficient depends upon the general
state of the evidence. . . . Cases finding 'could' or 'might'
expert testimony to be sufficient often share a common theme -
additional evidence which tends to support the expert's testimony.”
Poole, 125 N.C. App. at 241, 481 S.E.2d at 92. Thus, Poole permits
review of additional evidence, but certainly does not require a
whole record type of analysis. Accordingly, we reject Defendant's
suggestion that the testimony of Dr. Farmer should be “viewed as a
whole with the testimony of Drs. Johanning, Tulis, Darcey and
Sandler[.]” Defendant acknowledges that Dr. Farmer “tested [P]laintiff
extensively” and “ruled out both the primary known causes of
vestibular dysfunction . . . and the lesser known causes” before
diagnosing Plaintiff with bilateral vestibular dysfunction that Dr.
Farmer believed was caused by ototoxicity, or exposure of the inner
ear to a toxic substance. It also concedes that Dr. Farmer
subsequently identified Stachybotrys mold as the toxic agent that
probably was responsible for Plaintiff's condition. The record is
clear that Dr. Farmer's diagnosis was based on his testing of
Plaintiff to rule out other causes, Plaintiff's history of exposure
to mold toxins, and Dr. Farmer's review of Dr. Johanning's article
on the subject. This being sufficient to defeat Defendant's
directed verdict motion, we do not engage in weighing this evidence
in the context of all the evidence. This assignment of error is
overruled.
Defendant's remaining arguments regarding causation attempt to
draw our attention to various weaknesses or inconsistencies in
Plaintiffs' evidence, or to Defendant's contrary evidence.
However, in our review of whether Plaintiffs “made out a prima
facie case sufficient to withstand a motion for a directed verdict,
the evidence must be viewed in the light most favorable to
caveators, deeming their evidence to be true, resolving all
conflicts in their favor, and giving them the benefit of every
reasonable favorable inference.” In re Will of Dupree, 80 N.C.
App. 519, 521, 343 S.E.2d 9, 10 (1986) (citations omitted).
“[T]his Court 'does not have the right to weigh the evidence anddecide the issue on the basis of its weight.' . . . Although by
doing so, it is possible to find a few excerpts that might be
speculative, this Court's role is not to engage in such a weighing
of the evidence.” Alexander v. Wal-Mart Stores, Inc., 166 N.C.
App. 563, 573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting)
(quoting Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414
(1998)), rev'd per dissent, 359 N.C. 403, 610 S.E.2d 374 (2005).
Without making any new arguments Defendant also asserts that
if this Court disagrees that the motion for JNOV should have been
granted, Defendant is nonetheless entitled to a new trial, on the
grounds that the jury's verdict was against the greater weight of
the evidence.
“The power of the court to set aside the
verdict as a matter of discretion has always
been inherent, and is necessary to the proper
administration of justice.” The trial judge
is “vested with the discretionary authority to
set aside a verdict and order a new trial
whenever in his opinion the verdict is
contrary to the greater weight of the credible
testimony.” Since such a motion requires his
appraisal of the testimony, it necessarily
invokes the exercise of his discretion. It
raises no question of law, and his ruling
thereon is irreviewable in the absence of
manifest abuse of discretion.
Britt v. Allen, 291 N.C. 630, 634-35, 231 S.E.2d 607, 611 (1977)
(quoting Bird v. Bradburn, 131 N.C. 488, 489, 42 S.E. 936 (1902);
and Roberts v. Hill, 240 N.C. 373, 380, 82 S.E.2d 373, 380 (1954)).
“Our review of a discretionary ruling denying a motion for a new
trial is limited to determining whether the record demonstrates
that the trial court manifestly abused its discretion.” Godfrey v.
Res-Care, Inc., 165 N.C. App. 68, 83, 598 S.E.2d 396, 406 (citingPittman v. Nationwide Mutual Fire Ins. Co., 79 N.C. App. 431, 434,
339 S.E.2d 441, 444 (1986)), disc. review denied, 359 N.C. 67, 604
S.E.2d 310 (2004).
Defendant fails to articulate any specific abuse of
discretion, and we conclude that the trial court did not abuse its
discretion in overruling Defendant's motion. This assignment of
error is overruled.
*** Converted from WordPerfect ***