Holley v. Burroughs Wellcome Co.
| Decision Date | 16 March 1982 |
| Docket Number | No. 8114SC694,8114SC694 |
| Court | North Carolina Court of Appeals |
| Parties | Dianne HOLLEY, Individually and as Guardian of the Estate of Ervin Lee Holley, Incompetent v. BURROUGHS WELLCOME CO., A North Carolina Corporation, and Ayerst Laboratories, A Division of American Home Products Corporation. |
Appeal by plaintiff from Bailey, Judge. Order entered 14 April 1981 in Superior Court, Durham County. Heard in the Court of Appeals 5 March 1982.
Plaintiff brought an action for loss of consortium of her husband, Ervin Lee Holley, for personal injuries to her husband, and for exemplary damages. In her complaint, plaintiff alleged, in summary, the following events and circumstances. Defendant Burroughs Wellcome Co. manufactures and sells Anectine TM, a depolarizing neuromuscular blocking agent, intended for and used as a muscle relaxant to facilitate endotracheal intubation of patients under general anesthesia. Defendant Ayerst Laboratories manufactures and sells Fluothane TM, an inhalation anesthetic agent used to induce a state of general anesthesia in humans. While plaintiff's husband, Ervin Holley, was undergoing knee surgery at Duke University Medical Center on 5 April 1976, he was administered both Anectine TM and Fluothane TM. During the operation, Holley suffered cardiac arrest and resultant severe and permanent brain damage. Holley's injuries were caused by the negligent failure of defendants to warn health care providers of the known dangerous characteristics and tendencies of their respective products when used alone or in conjunction with each other. Plaintiff's complaint is lengthy, detailed, and characterized by use of technical words and phrases from the fields of medicine and pharmacology. It was signed by counsel as follows:
McCain & Moore
By: Grover C. McCain, Jr.
William H. Moore, Jr.
Counsel for Plaintiff
James M. Ludlow
Plaintiff served interrogatories and requests for admissions contemporaneously with her complaint. These documents bear the same counsel's signatures as did the complaint. On 1 April 1981, defendant Burroughs Wellcome Co. filed a motion to bar Moore from further appearing in the cause, alleging that Moore was not licensed to practice law in North Carolina, that he had not petitioned the Court for admission to practice under Chapter 84 of the General Statutes, and that he was engaged in the practice of law in North Carolina in plaintiff's action. Plaintiff's response to Burroughs Wellcome Co.'s motion, signed by attorneys McCain and Ludlow, alleged plaintiff's desire for Moore to assist her North Carolina counsel in her action, prayed that the trial court deny Burroughs Wellcome Co.'s motion, and requested that the trial court entertain Moore's motion to be permitted to appear pro hac vice in association with her North Carolina counsel. In support of her response, plaintiff filed affidavits of James M. Ludlow, Gary S. Smithwick, Clark Fischer, Leslie G. Frye, Michael J. Lewis, Thomas J. Keith, Harrell Powell, Jr., and George Rountree, III, all licensed and practicing lawyers in North Carolina. All attested to Moore's standing as a member of the Georgia bar, his expertise as a practicing lawyer, and his good character.
Defendant Burroughs Wellcome Co.'s motion came on for hearing before Judge Bailey on 13 April 1981. At that time, Moore moved the trial court to be admitted pro hac vice in plaintiff's action. Moore's motion was supported by his own affidavit and by a statement to the Court by Ludlow, all of which are set out in full as follows:
MOTION OF WILLIAM H. MOORE, JR., OF THE GEORGIA BAR TO BE ADMITTED PRO HAC VICE TO APPEAR IN ASSOCIATION WITH RETAINED NORTH CAROLINA COUNSEL
Come now the movant, William H. Moore, Jr., a member of the State Bar of Georgia, and respectfully moves this Honorable Court to be admitted pro hac vice to appear, in association with retained counsel, for the plaintiff in the captioned cause. Movant shows that he has been retained by James M. Ludlow, retained counsel for the plaintiff to associate and assist Mr. Ludlow in the handling of the captioned cause.
Movant attaches to his motion that affidavit required by NCGS 84-4. (Illegible)
WHEREFORE, movant respectfully moves that he be admitted pro hac vice to assist retained counsel in the captioned cause.
s/ WILLIAM H. MOORE, JR.
Movant
AFFIDAVIT OF WILLIAM H. MOORE, JR.
Personally appeared before the undersigned notary public, William H. Moore, Jr., who upon being put upon his oath deposeth and sayeth:
My name is William H. Moore, Jr. I am a resident of Savannah, Georgia, residing at 910 Victory Drive, Savannah, Georgia, and I am a member in good standing of the State Bar of Georgia duly licensed and admitted to practice law by the State of Georgia.
If I am permitted to appear pro hac vice in the captioned cause, unless permitted to withdraw sooner by this Honorable Court, I will continue to represent the plaintiff in that cause until its final determination with reference to all matters incident to that cause. I will be subject to the orders of, and amenable to, the disciplinary actions and civil jurisdiction of the General Court of Justice in all respects as if I were a regularly admitted and licensed member of the Bar of North Carolina in good standing.
The State of Georgia grants the privilege of pro hac vice admissions to members of the Bar of North Carolina in good standing.
I have been associated by, and will be personally appearing with, two attorneys who are residents of the State of North Carolina who are duly and legally admitted to practice in the General Court of Justice of North Carolina upon whom service may be had in all matters connected with the captioned cause with the same effect as if personally made on me within the State.
Attached to this affidavit is the statement of James M. Ludlow, retained counsel in the captioned cause, associating me to assist him in the handling of this cause and setting forth his client's consent to the association.
s/ WILLIAM H. MOORE, JR.
(Sworn to this 14th day of April, 1981.)
My name is James M. Ludlow. I am an attorney at law, duly licensed and admitted to practice in the General Court of Justice of the State of North Carolina. I maintain my law office at 2514 University Drive, Durham, North Carolina.
I have been retained by the plaintiff in the captioned case to represent her and her husband, adjudicated an incompetent, in the captioned cause, and at the request and with the expressed consent of the plaintiff I have retained William H. Moore, Jr. of the Savannah, Georgia Bar to associate with and assist me in the handling of the captioned cause as my associate counsel.
Mr. Moore is to be compensated for his services by a portion of my contingent fee at no additional expense to my client.
I join in Mr. Moore's motion that he be admitted pro hac vice to appear with and assist me in representing the plaintiff.
The dispositive portions of Judge Bailey's order are as follows:
8. William H. Moore, Jr., in signing the complaint, interrogatories, request for admissions and brief and filing the same in this action engaged in the practice of law in this State and made a general appearance on behalf of the plaintiff showing his address as McCain & Moore, 702 West Cobb Street, Durham, North Carolina.
9. On the date this matter was calendared for hearing, April 13, 1981, William H. Moore, Jr., filed a motion herein entitled Motion of William H. Moore, Jr. of the Georgia Bar to be Admitted Pro Hoc Vice to Appear in Association With Retained North Carolina Counsel. Said motion contains an affidavit as required by N.C.G.S. 84-4.1 for limited admission of out-of-state attorneys. However, the said affidavit does not indicate that William H. Moore, Jr. is a "practicing attorney" in Georgia (N.C.G.S. 84-4.1(1)); but indicates he is licensed and admitted to practice in Georgia; the motion does not contain a statement signed by his client as required by N.C.G.S. 84-4.1(2) but contains a "Response" by Grover C. McCain, Jr. and James Ludlow, counsel for plaintiff in support of said motion and other affidavits.
* * *
11. William H. Moore, Jr. is not licensed to practice law in the State of North Carolina and he has engaged in unauthorized practice of law herein.
12. William H. Moore, Jr. failed to file a motion herein to be admitted to practice pursuant to N.C.G.S. 84-4.1 until more than three months following the filing of this action and other documents...
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...exercising its fundamental right to select counsel of its own choosing to represent it in this action. Holley v. Burroughs Wellcome Co., 56 N.C.App. 337, 289 S.E.2d 393 (1982). In Holley an order barring an out of state attorney from appearing on the plaintiff's behalf because of his failur......
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...535, 542 (1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1977). We are not inadvertent to Holley v. Burroughs Wellcome Co., 56 N.C.App. 337, 289 S.E.2d 393 (filed 16 March 1982). In Holley, the Court did not consider whether the appeal was interlocutory, and it is not pr......
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