Class Action Litigants Get Critical Win At Supreme Court in Chambers v. Moses Cone

By Burton Craige

In Chambers v. Moses Cone Hospital, the plaintiff filed a class action claiming that the defendant hospital had a practice of overbilling uninsured ER patients. After the hospital wrote off the named plaintiff’s bill, the trial court dismissed the action as moot. A unanimous Court of Appeals affirmed (Bryant, Dietz, Berger). On June 5 the Supreme Court reversed.

In a 6-1 decision written by Justice Anita Earls, the Court agreed with NCAJ and its co-amici, and held that a defendant cannot automatically moot a class action by picking off the named plaintiff before class certification.

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Get your CLE before the MCLE deadline!

Adrienne S. Blocker-Education VP - crop for wordpress  by Adrienne Blocker, VP of Education

The February 28 MCLE reporting deadline is approaching fast.  Sign up for one of NCAJ’s live CLE offerings listed below before you run out of time.  NCAJ CLEs are timely and engaging with an emphasis on practical skill development.  Register today!  And you can also learn more about NCAJ’s many convenient online CLE offerings at

Civil Procedure Boot Camp  |  January 11, 2019 | NCAJ HQ
Learn from the masters as they describe best practices in civil procedure

Anatomy for Lawyers  | January 18, 2019 | NCAJ HQ
Study the parts of the body that are most susceptible to injury and those that are not through videos, illustrations, and animations

Employment Law 2019  | February 1, 2019 | NCAJ HQ
A practical, must-attend seminar for the employment law practitioner

DWI 2019 | February 8, 2019 | NCAJ HQ
Join us for the annual winter DWI program

Ultimate Civil Trial Notebook II  | February 15, 2019  | NCAJ HQ
Back by popular demand, join Program Chair Philip Miller for this highly informative seminar

Ethics Hot Issues  | February 20, 2019  | NCAJ HQ
Join NCAJ Legal Affairs Counsel Burton Craige as he leads this comprehensive seminar on ethics

Disbursements 2019  | February 22, 2019 | Triad
Explore the latest in disbursements including ERISA, Workers’ Comp liens in third party cases, Medicare/Medicaid reimbursements and more

Traffic Law | February 22, 2019 | NCAJ HQ
Expand your practice or brush up on your existing practice with this comprehensive traffic law program

Discovery Toolbox for the Family Law Litigator   | February 21, 2019 | NCAJ HQ
A comprehensive program that covers everything that a family law practitioner needs to know about discovery and the discovery process

Specialized Lawyer Directories: Get Listed and Get Found

cloninger.brian  by R. Brian Cloninger


Today’s post covers improvements that have been made to the NCAJ Specialized Directories.

I always ask clients how they got my name. By far the most frequent answer is they found me online doing a Google search. Until recently, none of my clients found me using the NCAJ Traffic Referral List. Why are they able to find me (and other lawyers listed in the Specialized Directories) now? Keep reading for the answer, to learn why you should update your profile, and why you should get added to the directories, if eligible.

A week or so after NCAJ’s Annual Convention, I contacted Membership and Development Director Amy Smith to suggest changes to our membership profiles and the referral directories that would add a marketing benefit for NCAJ membership. She sent me a recent Trial Smith (aka MemberCentral) post entitled, “We’ve Enhanced SEO with Store, SeminarWeb, Events, and Blog Posts.” The single sentence post read: “New HTML Title Tags are now automatically inserted into pages making Store Items, SeminarWeb Programs, Events and Blog Posts not only more browser friendly for end-users, but also more search engine friendly, including more accurately titled search results in search engines.”

After I looked up the meaning of “SEO” and “HTML,” I started messing around on the NCAJ website and doing some Google searches. The improvements I suggested had already been made without me realizing it. I found myself.

Many of us have used the listserves to request referrals rather than using the NCAJ Specialized Directories. Now, we don’t have to use the listserve for that anymore. Even better, the public can now find NCAJ members easier using the directories or by simply doing a Google search.

All NCAJ members are listed in the Membership Directory. There is also a Bilingual Referral Directory ( Listing in other Specialized Directories is only available to members of the Section. For example, listing in the Traffic Referral Directory ( is a benefit of membership in the Criminal Defense Section. These directories are accessible to NCAJ members and to the public. You must be a member of NCAJ to access the Products Liability and Construction Defects Section Directory (, and must be a member of the Section to be listed.

Update your profile ( to get added to the Specialized Directories, and get found!



NCAJ Leaders’ Forum Firm HensonFuerst, P.A. Launches GoFundMe Page for Disabled Veteran Client Losing His Home

Willard Swinson, born and raised in Clinton, NC, a college graduate with a degree in history and political science, and an Air Force Veteran, suffered a devastating and life-altering fall in 2006, which left him a quadriplegic. After several years in rehabilitation hospitals, he returned to his Clinton, NC home, now wheelchair bound.

The roof of the home began to leak.  Willard had plumbing and roofing repairs done, but the roof still required additional repair, so it was partially covered with a tarp.   Willard survives on veterans’ benefits and social security disability benefits. While he was trying to figure out how he could pay for the roof repairs on his limited income, the City of Clinton instructed him to vacate his home for code violations.

Not knowing he could fight this, he moved out of his own home and moved into the first place he could find:  subsidized housing for the elderly for which he must pay rent, straining his very limited disability income.

Shortly thereafter, Hurricane Matthew struck, leaving Willard’s home beyond repair.

Willard has tried repeatedly to get his home repaired.  He attended all City Council meetings to defend his home. In 2017, the City sought to demolish the home, at Willard’s expense.

HensonFuerst, P.A. learned of Willard’s dilemma, wanted to help him save his home (the only asset he owns debt free), and began representing him on a pro-bono basis.

Unable to stop Willard’s home from being condemned, the firm is currently working with him, the City of Clinton, and the community around him to raise funds to build another home on the site — one that is wheelchair accessible.    Todd Belisle at The Centers, an NCAJ sponsor and financial supporter, has also joined the effort, providing work for him pro-bono.

The NC Advocates for Justice is proud of the work of HensonFuerst, P.A. and The Centers and their dedication to the mission to protect people’s rights.

Click below to learn more about Mr. Willard Swinson, who has inspired the folks at HensonFuerst, P.A.:

Please consider donating today to move a veteran back into a safe home, his own home, on his own land!

Generic vs. Branded Drugs – Yes, There Is A Difference When You Have a Drug Related Injury

Every day, millions of Americans have prescriptions filled with generic drugs. Because we have become so accustomed to generic drugs –  over 80% of prescriptions are filled using generics – we don’t give much thought to it.  In most circumstances, a doctor or pharmacist will tell you that there is no difference between the name brand drug or its generic equivalent.  However, your ability to recover for injuries caused by prescription drugs depends on whether you took the branded or generic version.

In 2011, the U.S. Supreme Court issued a ruling, Pliva v. Mensing, that effectively made generic drug makers not responsible for injuries to consumers. The most common theory for a products liability claim against a drug manufacturer is a failure to adequately warn of the drug’s side effects and risks.  These claims are brought under state laws that are stricter than FDA regulations and impose a duty on a manufacturer to change the label on a drug when they know of potential injuries.  A branded drug manufacturer has the ability under federal law (the FDA) to change their warning label whenever necessary.  But under federal law, the labeling and warnings on a generic drug must be identical to the named brand counterpart. Meaning, the warnings on a generic drug can only be changed if the warnings on the brand name drug are changed.  Since federal law usually preempts or overrules state laws, the Supreme Court said it would be “impossible for the [generic drug] manufacturer to comply with both their state law duty to change the label and their federal law duty to keep the label the same.”  Accordingly, plaintiffs cannot sue a generic drug manufacturer for failure to adequately warn of a drug’s side effects.

The FDA has been considering a rule that would allow generic drug manufacturers to independently update their warning labels.   Efforts to convince Congress to change the rules with legislation failed.  Until there is a change, many consumers will have no legal recourse against the manufacturers of the drugs that injure them.


Written by Jean Sutton Martin of the Law Office of Jean Sutton Martin PLLC.  Attorney Jean Sutton Martin provides focused, personalized legal solutions for people who have been harmed by pharmaceutical drugs and medical devices.

Types of Defective Product Liability Claims

If you’ve been injured from a defective product, you may be eligible to file a defective product liability claim. The claim you file may fall into one of three categories of product liability, and understanding these categories can help determine the validity of your claim. In this blog, our North Carolina personal injury attorney explains the three types of product liability claims:

Defectively Manufactured Products
A defectively manufactured product is perhaps the most obvious type of claim. If you’ve sustained an injury from a product that was flawed as a result of how it was made, your claim falls under the category of a defectively manufactured product. In these cases, you must prove that your injury was caused directly from the manufacturing defect, and not from user error. Examples of a defectively manufactured product include a swing set with a cracked chain pads or a tainted batch of cough syrup.

Defectively Designed Products
Claims filed in the category of defectively designed products include products where the design is inherently dangerous. When there is a defect in the design of a product, it makes the entire line of products dangerous, even if the product met the manufacturer’s requirements and standards. A design defect claim can include a type of sunglasses that fail to protect individuals from UV rays or a line of electric blankets that can electrocute the user when turned on.

Failure to Warn
Failure-to-warn liability claims cover products that fail to provide the user with warnings or instructions on how to use the product properly. These claims involve products that are dangerous in a way that is not obvious to the user such as a paint-removing chemical that’s sold without adequate instructions for use. Warnings are typically required if the product presents a danger, the manufacturer is aware of the danger or if users are at risk of injury even if they use the product in its intended manner.

Twiggs, Strickland & Rabenau has been successful in pursuing products liability cases throughout North Carolina. If you’ve suffered injuries from a defective product, call their North Carolina personal injury attorney at (919) 701-8132 to learn more about your case.


Tips for Purchasing a Used Vehicle from an Individual

It’s tax season…’s springtime (on the calendar though not yet in the air).  These things usually lead to people spending money on vehicles.  To save a few bucks folks often eye and buy a used vehicle from another person versus a dealership.  Before you take the plunge here are a few things to know to hopefully avoid being stuck with a used lemon.

First, there is no federal or North Carolina law that requires any used vehicle seller—dealer or individual—to:

  • provide any warranty on a vehicle being offered for sale
  • perform any mechanical or structural inspection of a vehicle prior to sale
  • allow any cancellation a/k/a “cooling off” period upon sale of a vehicle

And please be advised that the North Carolina lemon law statute only applies to brand new vehicles.  In other words, THERE IS NO LEMON LAW PROTECTION FOR USED VEHICLES OFFERED FOR SALE OR PURCHASED IN NORTH CAROLINA.  When used vehicles are involved the law is a hodge-podge of various statutes and principles of contract law.

Given these things it truly behooves the buyer to run either a CarFax or Autocheck report on the vehicle to learn about its history.  Also the buyer should have the vehicle checked out by a mechanic before agreeing to purchase.  Preferably the mechanic inspecting the vehicle should be one hired by the buyer and not the seller.  The buyer should have the mechanic provide a written inspection report noting any problems or material defects with the vehicle.  Buyer should then share the report with the seller and seek to negotiate the purchase price, a possible warranty or agreement to repair, or—depending on the seller’s willingness to respond—possibly opt not to purchase the vehicle.

Unless the seller is someone the buyer knows the buyer may be well advised to ask to see a driver’s license or photo identification card from the seller to verify the seller’s identity. The seller’s name on these documents should match the seller’s name on the vehicle’s Certificate of Title as well as the name to be placed on the purchase documents signed by the parties.

Once a decision to buy is made the buyer should insist on having a Bill of Sale which clearly states the following information:

  • full name(s) and address(es) of the buyer(s) and seller(s);
  • year, make, model, color, and vehicle identification number (VIN) for the vehicle
  • purchase price of the vehicle
  • whether the seller is providing any warranty and, if so, a complete statement of the mileage and duration (time) of the vehicle as well as the components covered plus the portion of any repairs to be paid by the seller
  • any other important terms of the deal (ex:  seller agreement to perform or pay for certain repairs/modifications at or before the time the vehicle is delivered to the buyer, seller promises regarding the vehicle’s condition or features)

If the buyer is making payments to the seller for the vehicle there should be a finance contract signed by buyer and seller which states the amount and frequency (weekly, bi-weekly, monthly, etc.) of payments, due dates for payments, name and address to whom the payments should be made.  The finance contract should also state if any of the following are being assessed:  interest/finance charges, late fees, and repossession fees.  And if the seller wants to retain the right to repossess the vehicle for a breach of contract by the buyer there should be a repossession agreement a/k/a security agreement, signed by both parties, which states the right of repossession and the terms and conditions under which this right may be utilized.

Another key note is that the buyer should NEVER pay any money to the seller until the buyer has seen (and preferably been given) the original Certificate of Title.  This is to ensure the seller of the vehicle is the actual owner of the vehicle and it also allows the buyer to see if the Certificate of Title states the vehicle is a flood, salvage, total loss, or remanufactured vehicle.  Additionally the buyer can determine if there are any liens listed on the Certificate of Title and also verify that the Certificate of Title being provided by the seller is for the same vehicle being sold by the seller.

For additional information on purchasing a used vehicle from an individual click here.  And even if you are not in the market for a used vehicle please pass this post along to your family, friends, and social networks.  Happy but heady buying….


John T. O’Neal is a practicing attorney in Greensboro, NC who focuses his practice in Personal Injury/Wrongful Death, Consumer Law (includes Auto Dealer Fraud/Vehicle Issues, Lemon Law, and Debt Collection Defense), and various types of Civil Litigation. A long-time NCAJ member and a two-time Ebbie Award winner, he is a former Chair of the Consumer Areas of Practice Section and the Hispanic/Latino Issues Division.

When Making an Insurance Claim for Property Damages Don’t Forget to Include the Diminished Value of Anything Repaired but Not Replaced

When we make an insurance claim for damage to our vehicle or other property, if the insurer chooses to repair rather than replace the damaged vehicle or other item, we are entitled to be compensated for the loss in future resale value that repaired property brings compared to that which was never damaged.  You are not going to be reimbursed for your hassle, wasted time, and emotional upset, but you can and should demand payment for the economic losses that even a well-repaired collision almost certainly brings.

Technically, “Diminished Value” is the loss in “market value” that occurs when a vehicle is wrecked and repaired.  It is easy to overlook this loss because you were not, at the time of your accident and repair, thinking about selling your car and we do not usually think about our car’s “value” as a financial asset.  If the vehicle is quickly and properly repaired, it is easy to think that’s the end of it, because that is the end of it, at least until you try to sell or trade it, maybe years later.  This loss in future resale value is a virtual certainty because a reasonable consumer will not pay the same price for a wrecked, then repaired vehicle, as he or she will for a vehicle with no accident history.   Even if the repairs were done well, a vehicle will still lose value, and sometimes a lot of value.

This loss in value is particularly significant when a vehicle was seriously damaged to the point where disclosure of the wreck is required.  In North Carolina, if a vehicle sustains 25% or more in damage the seller, by law, is required to disclose the damage by checking in a field on the vehicle’s title. This obviously reduces the vehicle’s resale value since few buyers will pay the same amount for a wrecked vehicle as they would a similar undamaged model.  Even if the wreck is less substantial the individual will have significant legal exposure if the individual re-sells the vehicle and does not disclose the prior damage to the new vehicle owner, if the new owner asks about previous damage.

The concept of diminished value is recognized in our law; North Carolina courts have stated that vehicles involved in an accident suffer an inherent reduction in value, and that efficient repairs cannot return said vehicle to its pre-accident condition or value. The law simply reflects what we know:  that most car shoppers will not be interested in acquiring a wrecked and repaired vehicle and the few that are demand a hefty discount. Buyers tend to be afraid of the long-term implications of a collision as well as the negative impact on the vehicle history report.

Unfortunately, many consumers do not know their rights and are unaware that they are entitled to a check for “diminished value” in addition to the repairs on their vehicle.  Some insurance adjusters will not mention that you are entitled to this payment if you don’t remember to ask for it; some other adjusters refuse to pay it in cases in which the repairs are worth less than 25% of the car’s value.  Do not settle for this nonsense!  Even if the amount is small, you are entitled to receive it, and the insurance company cannot just argue that you should hide the fact of the repair from the next owner.

The value of your diminished value claim is equal to the difference between the “fair market value” of your property immediately before it was damaged and its fair market value immediately after it was damaged.  “Fair market value” is defined as the amount which would be agreed upon as a fair price by you when you wish to sell, but are not compelled to do so, and a buyer who wishes to buy, but is not compelled to do so.  You can determine  the fair market value through a professional appraisal; more simply, you can arm yourself for negotiating with the insurance adjuster by researching the market — get quotes from dealers, list your car on for sale, and easiest of all through internet searches of book values (,,, etc.).  Get as many values as you can, and get them in writing.

At the end of the day, always remember that you need to watch out for your own interests, and insurance company representatives are not going to tell you everything that you may be entitled to.  Be an educated consumer and stand up for your rights.


Anthony D. Taibi is a partner at Taibi Kornbluth Law Group in Durham.  After graduating with Highest Honors from Duke Law, clerking, teaching law, and a stint as a transactional securities and finance lawyer, Tony decided to return to Triangle and focus his career on fighting for the rights of ordinary people through civil litigation.  For more than fifteen years, he has been a North Carolina litigation attorney; his firm concentrates in the areas of personal injury, business litigation, employment law and discrimination, workers’ compensation, unfair trade practice, and real estate and investment fraud.  Tony served as Coordinating Editor for the December 2007 Consumer Law issue of Trial Briefs, in which he also published Constructive Fraud for the Consumer Lawyer.

Liability Claims for Defective Products – What you Need to Know

In North Carolina, claims for injuries arising out of defective products are governed by statute.  Generally,  a product manufacturer can face liability for defective design, negligent manufacture, or inadequate warning or instruction.

A “defective design” claim extends to all identical products within a given product line.  To prevail on such a claim, an injured party must prove that the manufacturer unreasonably failed to adopt a safer, practical, technically feasible and reasonable alternative design that would have prevented or significantly reduced the risk of harm while retaining the overall usefulness of the product.  This analysis involves a balancing test requiring several factors be weighed to determine potential liability of a manufacturer.  Engineering analysis is routinely required.  Alternatively, an injured victim can seek to prove that when control of the product left the manufacturer, its design was so unreasonable that had a consumer known of its dangers, the consumer would not have used the product.  The manufacturer is protected from liability if the products liability claim is based upon an inherent feature of the product which cannot be eliminated without rendering the product useless, and which is commonly known as a feature of the product.  Additionally, the manufacturer of a prescription drug cannot be held liable if a feature of the drug cannot reasonably be made safe, and adequate warning and instruction has been provided.

A “negligent manufacture” claim extends only to a given product or set of products within a product line.  Such a claim recognizes that there is no defect in the design of the product, but due to some manufacturing or production error, the product was not produced in accordance with its design.  A claim based on “negligent manufacture” is premised on the production error resulting in some hazard associated with the product that would not be foreseen by the ultimate consumer.  A manufacturer may not be held liable under this theory if the product is used contrary to express and adequate instructions or warnings accompanying the product, or if the consumer was aware of the hazard associated with the product and still elected to use the product in a manner that would expose the consumer to the hazard.  Additionally, a manufacturer will generally not be liable if the product was altered or modified by someone else, and such alteration created the hazard.

An “inadequate warning or instruction” claim must show that the product presented an unreasonably dangerous condition the manufacturer knew would exist without adequate warnings or instructions for use of the product.  Additionally, a manufacturer may be held liable if the manufacturer becomes aware that uses of the product create unreasonable risks of harm even after the product leaves the control of the manufacturer.  In such circumstances, the manufacturer may have a duty to recall the product or provide instructions to those who are already consumers of the product.  The manufacturer will not be liable for an open and obvious risk that is common knowledge.  Special rules also apply to drug manufacturers.


Based in Charlotte, North Carolina, Brown, Moore & Associates, PLLC, represents personal injury and medical malpractice victims throughout North and South Carolina. The firm’s attorneys have in-depth experience in motor vehicle accident and workers’ compensation litigation, and are known as strong advocates for their clients’ interests. To identify all available legal options, call 800-948-0577 or use this convenient online contact form.

Are The Roasting Chestnuts Safe to Eat?

As we prepare for the holidays, food is certain to be a central part of our family gatherings. We trust that the food we buy is safe and free of contamination, but that is not always the case. Every year, 48 million people get sick from foodborne illnesses. Of those affected, at least 128,000 are hospitalized and 3,000 will die. These numbers may understate the problem as many cases of foodborne illnesses go unreported.

These statistics are frightening, but what is scarier is that the numbers could be worse if not for trial lawyers. Our government regulators simply do not have the resources to force food corporations to take the necessary measures to protect our food supply. When these companies place profits before safety, the trial lawyers and our civil justice system are essential for the protection of consumers. Taking these food corporations to court has become an important deterrent against the bad acts and practices that create risk of contamination in our food supply.

News reports regarding food contamination are increasing. The recent outbreak of illnesses seemingly related to Chipotle restaurants have dominated the news of late. Most often the source or cause of food contamination is never identified, but we do know some reasons why the number is escalating. Aside from bad corporate practices, another reason for the increased risk of contamination is the advent of new farming strategies. The administration of pharmaceuticals to livestock has exploded. Not only does that use add risk, the waste from these farms filter into the groundwater and crops growing nearby. As such, contamination in leafy greens such as lettuce and spinach is now the second biggest cause of food-related hospitalizations and the fifth most frequent cause of deaths related to foodborne illnesses.

A contamination lawsuit against a food corporation is about much more than compensating the injured consumer. These lawsuits have the opportunity to effectuate change in corporate policy affecting food safety. When food producers and suppliers are held liable for the injuries caused by contamination in their products, these companies have greater incentive to value safety over profits. Sometimes it is these lawsuits that actually uncover the source of the contamination through the discovery conducted. Government regulators simply do not have the time, power or resources to conduct such thorough investigations as can be done through the civil court system. These lawsuits are vital for the protection of consumers.

Written by Jean Sutton Martin of the Law Office of Jean Sutton Martin PLLC.  Attorney Jean Sutton Martin provides focused, personalized legal solutions for people who have been harmed by pharmaceutical drugs and medical devices.