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TOMMY DAVIS NATHAN CAMERON, and
wife, LISA CAMERON,
v . Wake County
No. 01 CVS 013529
MERISEL PROPERTIES, INC., and
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.
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 thecompetent 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.
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