Cameron v. Merisel Properties, Inc.

• Decision Date: 06 November 2007
• Docket Number: No. COA07-54.,COA07-54.
• Citation: 652 S.E.2d 660
• Court: North Carolina Court of Appeals
• Parties: Tommy Davis Nathan CAMERON, and wife, Lisa Cameron, Plaintiffs v. MERISEL PROPERTIES, INC., and Brian Goldsworthy, Defendants.

652 S.E.2d 660

Tommy Davis Nathan CAMERON, and wife, Lisa Cameron, Plaintiffs v. MERISEL PROPERTIES, INC., and Brian Goldsworthy, Defendants.

No. COA07-54.

Court of Appeals of North Carolina.

November 6, 2007.

Appeal by Defendant from an order entered 14 February 2006 by Judge Michael R. Morgan; and from orders entered on 6 March 2006, 17 March 2006, 22 March 2006 and 10 May 2006, and judgment entered 4 April 2006, by Judge Robert H. Hobgood; all in Wake County Superior Court. Heard in the Court of Appeals 10 September 2007.

Hunton & Williams, L.L.P., by Steven B. Epstein, John D. Burns, and L. Neal Ellis, Jr., Raleigh, for Plaintiffs-Appellees.

Clausen Miller, P.C., by Melissa A. Murphy-Petros and Edward M. Kay, Chicago, IL; and Cranfill, Sumner & Hartzog, L.L.P., by William W. Pollock, Jaye E. Bingham, and Dexter Campbell, III, Raleigh, 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 to Merisel 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.

Defendant argues first that the trial court erred by denying its motion for JNOV. The trial court denied Defendant's motion for directed verdict at the end of Plaintiffs' evidence and its renewed directed verdict motion at the close of all the evidence. Defendant then moved for JNOV, on the grounds that its earlier directed verdict motions should have been granted.

Our standard of review of the denial of a motion for directed verdict and of the denial of a motion for judgment notwithstanding the verdict are identical. "The standard of review of a ruling entered upon a motion for judgment notwithstanding the verdict [or a motion for directed verdict] is whether upon examination of all the evidence in the light most favorable to the non-moving party, and that party being given the benefit of every reasonable inference drawn therefrom and resolving all conflicts of any evidence in favor of the non-movant, the evidence is sufficient to be submitted to the jury."

Denson v. Richmond Cty., 159 N.C.App. 408, 411, 583 S.E.2d 318, 320 (2003) (quoting Branch v. High Rock Realty, Inc., 151 N.C.App. 244, 249-50, 565 S.E.2d 248, 252 (2002)) (citation omitted). A motion for either directed verdict or judgment notwithstanding the verdict "`should be denied if there is more than a scintilla of evidence supporting each element of the non-movant's claim.'" Branch, 151 N.C.App. at 250, 565 S.E.2d at 252 (quoting Norman Owen Trucking v. Morkoski, 131 N.C.App. 168, 172, 506 S.E.2d 267, 270 (1998)).

Plaintiffs' claim for premises liability was "based upon allegations of negligence.... `It is well established that ... the essential elements of negligence [are] duty, breach of duty, proximate cause, and damages.'" Thomas v. Weddle, 167 N.C.App. 283, 286, 605 S.E.2d 244, 246 (2004) (quoting Camalier v. Jeffries, 340 N.C. 699, 706, 460 S.E.2d 133, 136 (1995)). Defendant challenges the sufficiency of the evidence of causation. Cameron was diagnosed with bilateral vestibular dysfunction, which he claimed was caused by his exposure to toxic molds at work. We next determine whether Plaintiffs presented "more than a scintilla", Norman Owen Trucking, 131 N.C.App. at 172, 506 S.E.2d at 270, of evidence that Cameron's disorder was proximately caused by his exposure to mold.

Bilateral vestibular dysfunction is a complex medical condition, and in "cases involving 'complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.' ... `The evidence must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation.'" Holley v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 753 (2003) (quoting Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980); and Gilmore v. Hoke Cty. Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)). "The quantum and quality of the evidence required to establish prima facie the causal relationship will of course vary with the complexity of the injury itself." Click v. Pilot Freight Carriers, Inc. 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). However,

"[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 in the 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...