Opinion

Hesed El v. Bryson

Court
District Court, W.D. North Carolina
Filed
Jun 27, 2024
Cited by
0 cases
Authority
More cited than 31.5%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:21-cv-00305-MR-WCM

TAQI EYR HHAMUL HESED EL, )

a/k/a BRO T. HESED-EL, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

ROBIN BRYSON and )

MISSION HOSPITAL, INC. )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on the Defendants’ Motion for

Summary Judgment [Doc. 165], the Plaintiff’s Motion for Partial Summary

Judgment [Doc. 170], and the Plaintiff’s Motion for Payment of Reasonable

Expert Witness Fees [Doc. 224].

I. PROCEDURAL BACKGROUND

Taqi Eyr Hhamul Hesed El (the “Plaintiff”) commenced the present

action—his third based on these facts1—by filing his Complaint on October

18, 2021, which he amended on February 22, 2022. [Docs. 1, 14]. The

1 The Plaintiff has previously filed two civil actions alleging various claims stemming from

what he contends was his involuntary commitment at Mission Hospital during September

and October of 2016. [See Doc. 138]. Both actions were dismissed. [Id. at 2].

Plaintiff’s claims stem from what he contends was his involuntary

commitment at Mission Hospital during September and October of 2016.

[Doc. 14]. The Plaintiff originally filed suit against additional defendants, but

after such defendants filed Motions to Dismiss [Docs. 33, 60, 74], the Court

ordered the case to proceed with respect to only the following claims:

(1) “Gross Negligence/Willful and Wanton Conduct” against Defendant

Robin Bryson; (2) negligent infliction of emotional distress against Defendant

Robin Bryson; (3) “Negligent Supervision and/or Training” against Defendant

Mission Hospital; and (4) “Respondeat Superior” against Defendant Mission

Hospital. [Doc. 87].

On April 3, 2024, the Defendants Robin Bryson (“Bryson”) and Mission

Hospital, Inc. (“Mission”) moved for summary judgment on all remaining

claims. [Doc. 165]. On the same day, the Plaintiff filed a Motion for Partial2

Summary Judgment. [Doc. 170]. On April 17, 2024, the Defendants filed a

Response in Opposition to the Plaintiff’s Motion. [Doc. 185]. On May 14,

2024,3 the Plaintiff filed a Reply in support of his Motion for Partial Summary

2 It is unclear why the Plaintiff considers his Motion to be partial as it states that he is

moving for judgment on “Plaintiff’s claims against Robin Bryson and Mission Hospital,

Inc.,” but does not further specify which claims. [Doc. 170]. Therefore, the Court will

construe the Plaintiff’s Motion as a Motion for Summary Judgment on all his remaining

claims.

3 The Court notes that the Plaintiff’s extended deadline to file these documents was May

13, 2024, but they were delivered to the courthouse on that day after the Clerk’s Office

Judgment, as well as a Response in Opposition to the Defendants’ Motion

for Summary Judgment. [Docs. 202, 203]. On May 21, 2024, the

Defendants filed a Reply in support of their Motion for Summary Judgment.

[Doc. 211].

On May 28, 2024, the Plaintiff filed a Motion for Payment of

Reasonable Expert Witness Fees for his expert witness, Dr. Ryan Kaufman.

[Doc. 224]. On June 11, 2024, the Defendants filed a Response in

Opposition to the Plaintiff’s Motion. [Doc. 232]. On June 18, 2024, the

Plaintiff filed a Reply to the Defendants’ Response. [Doc. 236].

Having been fully briefed, these matters are now ripe for disposition.

II. STANDARD OF REVIEW

Summary judgment is proper “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). “As the Supreme Court has observed,

‘this standard provides that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine

had closed. Therefore, these filings were technically filed past the deadline, but the Court

will nonetheless accept and consider them.

issue of material fact.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346

F.3d 514, 519 (4th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247-48 (1986)) (emphasis in original).

A genuine issue of fact exists if a reasonable jury considering the

evidence could return a verdict for the nonmoving party. Shaw v. Stroud, 13

F.3d 791, 798 (4th Cir. 1994), cert. denied, 513 U.S. 814 (1994).

“Regardless of whether he may ultimately be responsible for proof and

persuasion, the party seeking summary judgment bears an initial burden of

demonstrating the absence of a genuine issue of material fact.” Bouchat,

346 F.3d at 522. If this showing is made, the burden shifts to the nonmoving

party who must convince the Court that a triable issue exists. Id. In

considering the facts on a motion for summary judgment, the Court will view

the pleadings and material presented in the light most favorable to the

nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475

U.S. 574, 587-88 (1986).

III. FACTUAL BACKGROUND

Viewing the forecast of evidence in the light most favorable to the

Plaintiff, the following is a recitation of the relevant facts.

On September 20, 2016, law enforcement officers brought the Plaintiff

to Mission and told medical personnel that he was found naked on the

grounds of the Biltmore Estate “running around, talking about Jesus.” [Doc.

166: Medical Records at 2, 5]. Upon arrival to the hospital, the Plaintiff had

“an outburst and acted violent,” leading medical providers to administer

Lorazepam and Haloperidol to subdue and sedate him. [Id. at 10].

Medical records from Mission show that on initial examination, the

Plaintiff, when asked what his name was, said “I don’t have a name. I was

kidnapped by the police and brougt [sic] to this place.” [Id. at 2]. The Plaintiff

refused to give his name or any identifying information, and asked for pen

and paper so he could write a contract and sue the hospital staff. [Id.]. He

claimed he was being poisoned by hospital staff and refused lab work,

saying, “It is theft if you take my blood. . . . You will answer to Jesus Christ.”

[Id. at 2-3]. Medical records also indicate that the Plaintiff’s sister contacted

the hospital sometime after he arrived. [Id. at 2]. She was not aware of the

Plaintiff having any psychiatric history, history of psychosis, or history of

substance misuse, and said of the Plaintiff’s behavior: “[T]his is new. I have

never heard him talk like this before.” [Id.]. The Plaintiff’s sister also said

that she had not seen the Plaintiff in sometime and was unsure where he

was living. [Id.].

Defendant Robin Bryson (“Bryson”) performed the Plaintiff’s initial

behavioral health examination. [Id.]. Bryson has been a licensed clinical

social worker since October 10, 2013, and has worked at Mission Hospital

since 2014. [Doc. 168-3 at ¶¶ 3-4]. She has been certified by the North

Carolina Department of Health and Human Services (“DHHS”) to conduct

involuntary commitment evaluations since April 29, 2016.4 [Id. at ¶ 5; Doc.

187-1: Bryson Aff. at ¶¶ 4-6]. Bryson was therefore properly licensed as a

social worker and certified to conduct involuntary commitment evaluations at

the time of the events at issue in this case. [Id. at ¶¶ 4, 7].

Based on her initial examination of the Plaintiff, Bryson recommended

that the Plaintiff be seen for a full psychiatric evaluation due to his mental

status and the lack of known history of his symptoms, and that if the Plaintiff

tried to leave, he would meet the criteria for involuntary commitment. [Id.].

4 The Plaintiff disputes that Bryson was lawfully permitted to perform his first commitment

examination because she performed the examination without the “required statutory

waiver.” [Doc. 204 at 12]. However, the statutory requirements for certification of

commitment examiners are clear that

[t]he Secretary of Health and Human Services may individually

certify to perform the first commitment examinations required

by [statute] other health, mental health, and substance abuse

professionals whose scope of practice includes diagnosing

and documenting psychiatric or substance use disorders and

conducting mental status examinations to determine capacity

to give informed consent to treatment . . .

N.C. Gen. Stat. Ann. § 122C-263.1(a). The Plaintiff himself provided documentation from

DHHS showing that Bryson was a certified examiner. [Doc. 185-1; Doc. 175-6 at ¶¶ 15-

16]. Bryson confirmed that she was certified as of April 29, 2016, in her affidavit. [Doc.

187-1 at ¶ 5-6]. Therefore, the Plaintiff has failed to raise a genuine issue of fact as to

Bryson’s certification.

She consulted with an Emergency Department Licensed Provider who

agreed with her plan. [Id.]. Later that same day, Bryson filed an Affidavit

and Petition for Involuntary Commitment with Buncombe County District

Court. [Doc. 167 at 12]. In that filing, Bryson represented to the court: “Due

to altered mental status, [the Plaintiff] is unable to reliably contract for safety

at this time and at further risk of decompensation without psychiatric

intervention to endure [sic] safety.” [Id.]. A custody order was issued by a

Magistrate that evening, and the Plaintiff was served with the order by a law

enforcement officer with the Buncombe County Sherriff’s Office at

approximately 11:50 p.m.5 [Id. at 16]. Medical records indicate that upon

the Plaintiff being taken into custody, Bryson provided him with a notification

of involuntary commitment and a fact sheet. [Doc. 166 at 18; Doc. 168-3:

Bryson Aff. at ¶ 16].

The Plaintiff’s medical records note his numerous comments and

behaviors that led medical providers to be concerned for his safety and well-

being prior to his discharge. On September 22, the Plaintiff’s progress notes

5 The Plaintiff “disputes the authenticity of the magistrate’s temporary custody order, the

signature thereon, and alleged service of the custody order,” as well as “whether the

magistrate was lawfully appointed or elected into office.” [Doc. 204 at 3]. These

arguments, however, appear to challenge the validity of the underlying state court order,

which is a matter beyond the purview of this action. Therefore, absent any other indication

that the provided records are illegitimate, this Court will consider these facts to be

undisputed.

state: “While remains unclear as to the patient’s immediate dangerousness

clearly his psychotic delusions have already shown him to present a severe

lack and [sic] judgment and puts him at a risk of accidental self-harm due to

poor decision making.” [Doc. 166 at 16]. The same day, treatment records

note:

[The Plaintiff] indicated tha he no longer considers

himself a citizen of the US, feels laws of the

country/state do not apply to him; explains that he

has created his own constitution, has sent this to the

federal and several local governments. Stated that

the FBI, Homeland Security, etc “all know who I am”.

He spoke as though he and his generation are

operating on a much higher level than other people,

eventually explained that he is a disciple of the

“Moorish Science Church of America”; this reporter

briefly researched this religion; pt’s world view does

seem to be greatly informed by this somewhat

obscure religion. Pt feels society is on the verge of

unravelling; feels the US and capitalism are about to

crumble; indicated that he and others (unclear who

he is talking about) are going to establish their own

communal living situation. Pt speaking in highly

intellectualized, esoteric terms about minutia of US

history, political science, federal/state law. Very

difficult to engage pt in grounded discussion about

the very basic nature of his presence in the hospital.

Pt very dismissive of psychiatry and medicine, feels

he and other just operate at a “higher frequency”,

seems to pity those who don’t see things in these

terms.

[Doc. 167 at 5] (errors uncorrected).

On September 26, treatment records note:

The patient remains paranoid and refusing all

treatment. I asked him if he had any more thoughts

about being naked on the Biltmore state the patient

responded that he would take this up with “the

Biltmore company.” I explained that the estate is

actually on by the Vanderbilt family and the patient

began to ruminate on this and said “that is just

hearsay.” The patient then became highly focused on

who the Vanderbilts were and whenever this writer

had ever seen the “deed to the property.” The patient

then began asking this writer whether I was part of

the Vanderbilt family and when I said I was not he

said “then I am going to terminate this interview.” The

patient then began asking this writer questions

including whether this writer had student loans and if

so then “we the people have determined you to be

too corrupted to make clinical decisions.”

[Id. at 19] (errors uncorrected).

On October 3, upon examination, a medical provider’s notes state the

following:

Patient maintains he is a “free agent” of the “United

States Corporation of America” and “I do not have to

pay for anything, I am an ambassador of love.”

Patient then hands [the provider] a cut out heart he

made form blue construction paper “I just give out

hearts and love all day.” Patient goes on to say he

did “not refuse medications, my reality will not be

filled in by professional liars, I said I wanted a

periodic table so that I knew what it is I am

ingesting.” . . .

Patient reports that the night before he was caught

walking on Biltmore Estate naked he did not sleep.

Patient reports he usually sleeps well, so this was

unusual. He also received a “claims form” for a

“sweepstakes”, and on the form it said you can claim

whatever you want to I claimed when my car got hit

by someone in Savannah and I claimed 250, 000 on

the ticket. I mean it said anything.” The patient then

stares at PC quizzically.

Patient reports when he could not sleep he began

“thinking of the purge [movie] and how the

government uses sound weapons and I was hearing

this buzzing noise, so I started to run a bath and I

stayed there all night, just letting the water out and

then filling up again. When the sun rose I stretched

and went to get my tickets. They gave me an

ambassador ticket and I filled out my claims form,

remember? So I gave it to her for the 250, 000 and

she said I’ve never seen anything like this and she

went to get her supervisor. SO I left, and went right

past the gates and they let me, and this just made

me feel like I was one with the world and the universe

and the light form the trees, and the air, and I just

started taking off my clothes and my shirt next thing

you know there are two white trucks and one of them

is trying to give me a blanket.”

[Id. at 3-4] (errors uncorrected).

The Plaintiff remained under involuntary commitment and was treated

at Mission until he was discharged on October 5, 2016. [Doc. 167: Medical

Records at 63]. Over the course of his commitment, the medical records

note that the Plaintiff’s condition was slowly improving in that he “was better

able to have a linear conversation,” despite his continuing to be “expansive

and grandiose.” [Id. at 62-63]. On October 4, 2016, the records note that

although the Plaintiff “[could] certainly benefit from ongoing treatment with

antipsychotic medication,” he “ha[d] not demonstrated any indication of being

a direct danger to himself or others due to his mental illness.” [Id. at 57-58].

At this point, Mission was also in communication with the Plaintiff’s

family to coordinate his safe discharge. [Id. at 63]. Notes in medical records

from the day of the Plaintiff’s discharge from Mission state: “The patient’s

poor judgment and insight does put him at a chronic risk for poor decision

making that may cause him harm. However, there is no current evidence of

imminent dangerousness so will drop the involuntary commitment and

discharge the patient to his family as per his wishes and theirs.” [Id. at 62].

On October 5, 2016, the Plaintiff’s brother travelled to North Carolina from

Georgia to take the Plaintiff home with him, and the Plaintiff was discharged

from Mission. [Id. at 63]

IV. DISCUSSION

A. Statute of Limitations

A claim for medical malpractice in North Carolina is barred by the

statute of limitations unless brought within three years of the date the claim

accrues. N.C. Gen. Stat. § 1-15(c). “Except where otherwise provided by

statute, a cause of action for malpractice arising out of the performance of or

failure to perform professional services shall be deemed to accrue at the time

of the occurrence of the last act of the defendant giving rise to the cause of

action.” Id. “Where the aggrieved party is under disability at the time the

cause of action accrues, the action must be commenced ‘within three years

next after the removal of the disability, and at no time thereafter.’” Shearin

v. Lloyd, 246 N.C. 363, 367, 98 S.E.2d 508, 511 (1957) (quoting N.C. Gen.

Stat. § 1-17(a)). The statutory definition of “under disability” includes

persons who are “incompetent.” N.C. Gen. Stat. § 1-17(a). N.C. Gen. Stat.

§ 35A–1101(7) defines an incompetent adult as

an adult or emancipated minor who lacks sufficient

capacity to manage the adult’s own affairs or to make

or communicate important decisions concerning the

adult’s person, family, or property whether the lack of

capacity is due to mental illness, mental retardation,

epilepsy, cerebral palsy, autism, inebriety, senility,

disease, injury, or similar cause or condition.

N.C. Gen. Stat. § 35A–1101(7).

The Plaintiff originally filed suit on October 7, 2019, before voluntarily

dismissing that case on October 22, 2020, and filing the present action on

October 18, 2021. [Doc. 168 at 10; Doc. 171 at 1]. North Carolina courts

sitting in diversity apply North Carolina Rule of Civil Procedure 41(b) to

determine the effect of a voluntary dismissal of state law claims. Topshelf

Mgmt., Inc. v. Campbell-Ewald Co., 203 F. Supp. 3d 608, 611 (M.D.N.C.

2016) (citing Haislip v. Riggs, 534 F.Supp. 95, 98 (W.D.N.C.1981) (“The

tolling of a state statute of limitations in a diversity case is strictly a

substantive matter of state law which [Supreme Court precedent]

command[s] that this Court follow absent substantial countervailing federal

interests.”)). The savings provision of Rule 41 of the North Carolina Rules

of Civil Procedure provides that where a party voluntarily dismisses an

action, “a new action based on the same claim may be commenced within

one year after such dismissal” and will still be considered timely. N.C. Gen.

Stat. 1A-1, 41(a)(1).

Having determined that the savings provision of Rule 41 applies, the

next issue is establishing the date of accrual of the Plaintiff’s claims. The

Defendants argue that the relevant date of accrual of the events at issue is

September 20, 2016, the date the Plaintiff was committed, and therefore, the

Plaintiff had until September 20, 2019, to file his Complaint. [Doc. 168 at

10]. The Plaintiff, in reliance on N.C. Gen. Stat. § 35A-1101(7), argues that

the appropriate date of accrual is instead October 5, 2016, the day he was

discharged, because he was under a disability during the entirety of his

commitment at Mission. [Doc. 204 at 8-9]. Therefore, the Plaintiff argues,

the statute of limitations expired on October 7, 2019. [See id. at 8].

The parties have forecast evidence from which a reasonable jury could

find that the Plaintiff was under a disability and lacked capacity to manage

his own affairs throughout the time he was committed at Mission and until he

was discharged on October 5, 2016. Therefore, taking the forecast of

evidence in the light most favorable to the Plaintiff, the statute of limitations

did not expire until October 7, 2019,6 and this action was timely filed.

Summary judgment on this basis is thus improper and will be denied.

B. Claims Against Defendant Robin Bryson

1. Gross Negligence/Willful and Wanton Conduct

Under North Carolina law, “[g]ross negligence has been defined as

‘wanton conduct done with conscious or reckless disregard for the rights and

safety of others.’” Toomer v. Garrett, 155 N.C. App. 462, 482, 574 S.E.2d

76, 92 (2002) (quoting Bullins v. Schmidt, 322 N.C. 580, 583, 369 S.E.2d

601, 603 (1988)). “Aside from allegations of wanton conduct, a claim for

gross negligence requires that plaintiff plead facts on each of the elements

of negligence, including duty, causation, proximate cause, and damages.”

Id.

The Plaintiff claims Defendant Bryson was grossly negligent in

petitioning for his involuntary commitment (“IVC”) in violation of N.C. Gen.

Stat. § 122C-263 in that she should have known that the Plaintiff did not meet

6 The Court takes judicial notice of the fact that October 5, 2019, was a Saturday, and

therefore the Plaintiff had until the following Monday, October 7, 2019, to file his action.

Winston v. Livingstone College, Inc., 210 N.C. App. 486, 486, 707 S.E.2d 768, 769 (2011)

(citing N.C. Gen. State § 1-593 and N.C.R. Civ P. 6(a)).

the criteria for IVC. The relevant IVC statute provides that a commitment

examination

shall include an assessment of at least all of the

following with respect to the respondent:

(1) Current and previous mental illness and

intellectual disability including, if available,

previous treatment history.

(2) Dangerousness to self . . . .

(3) Ability to survive safely without inpatient

commitment, including the availability of

supervision from family, friends, or others.

(4) Capacity to make an informed decision

concerning treatment.

Id. § 122C-263(c).

The Plaintiff has presented no forecast of evidence that Bryson

engaged in any conduct that was in reckless disregard to his rights or safety

in petitioning for IVC. By contrast, Bryson has presented a forecast of

evidence that she complied with the statutory requirements for seeking an

IVC and assessed the situation appropriately using her expertise and

experience. [See Doc. 168-3 at ¶ 10; Doc. 187-1 at ¶ 9]. For one, the

Plaintiff presented with symptoms of mental illness after initially arriving at

the hospital nonverbal. [Doc. 165 at 6]. These symptoms as documented

by Bryson and other responding medical providers included disorganized

thought process, incongruent affect, rapid speech, volatility, irritability,

mumbling, and violent outbursts. [Id. at 2, 6, 10]. The only other information

about the Plaintiff’s history of mental illness came from his sister, who was

not aware of any mental illness or substance abuse in the past, leaving

Bryson without any context as to the Plaintiff’s behavior or presentation of

symptoms.

Based on her observations of the statements and behavior7 of the

Plaintiff at the time of the IVC referral, Bryson determined that the Plaintiff

was dangerous to himself due to his impaired judgment and delusional

thinking. [See Doc. 167 at 12]. With the limited information available to her,

Bryson also concluded that the Plaintiff would not be safe if he left the

hospital and was not in a position to make informed decisions about his own

treatment. [See id.] These findings were properly documented in the

affidavit and petition that Bryson filed with the court and are further supported

by the Plaintiff’s medical records. [Doc. 166 at 14]. Furthermore, Bryson

sought a second opinion from an attending physician, who agreed with her

assessment. The forecast of evidence presented therefore shows that

Bryson acted within the standard of care in complying with the IVC statute.

The Plaintiff also claims a violation of section (g) of the IVC statute,

which states: “The commitment examiner, at the completion of the

7 Critically, the Plaintiff does not dispute the facts of his own statements and behavior that

ultimately led Bryson to recommend and petition for his commitment.

examination, shall provide the respondent with specific information regarding

the next steps that will occur.” N.C. Gen. Stat. § 122C-263(g). With regard

to Plaintiff’s claim that Bryson did not provide him with information about next

steps after his commitment, the medical records indicate that she gave the

Plaintiff an IVC fact sheet after he was taken into custody. [Doc. 166 at 18].

This series of actions by Bryson, as documented in the provided

medical records and further supported by her affidavits,8 do not suggest any

breach of the standard of care or of the relevant state law governing IVC

commitments, much less any action that was in reckless disregard to the

Plaintiff’s rights or safety. Due of the complete lack of evidence supporting

this claim, summary judgment will be granted to the Defendants, and this

claim will be dismissed with prejudice.

2. Negligent Infliction of Emotional Distress

“To state a claim for negligent infliction of emotional distress, the

plaintiff must allege that: ‘(1) the defendant negligently engaged in conduct,

8 The Plaintiff argues that Bryson’s affidavits should be disregarded as “self-serving”

“attempts to ‘clean up’ her medical negligence” because they include information that was

not included in the medical records at the time of the events at issue. [Doc. 204]. While

Defendant Bryson admits that she does not have specific memories of the events at issue,

she explains that, in preparing her affidavits, she relied on the documentation she made

in the Plaintiff’s medical records as well as her usual and habitual professional practices.

[Doc. 168-3 at ¶ 6-7]. Given that Bryson’s sworn statements are consistent with the

medical records and based on her professional experience, the Court finds that the

Plaintiff’s arguments as to their reliability are without merit.

(2) it was reasonably foreseeable that such conduct would cause the plaintiff

severe emotional distress, and (3) the conduct did in fact cause the plaintiff

severe emotional distress.’” Riddle v. Buncombe Cnty. Bd. of Educ., 256

N.C. App. 72, 74, 805 S.E.2d 757, 760 (2017) (quoting Sorrells v. M.Y.B.

Hosp. Ventures of Asheville, 334 N.C. 669, 672, 435 S.E.2d 320, 321-22

(1993)).

North Carolina state law immunizes hospitals and their employees

from civil liability for their actions which are not grossly negligent. N.C. Gen.

Stat. § 122C-210.1. Even if the Plaintiff had adequately forecasted evidence

that Bryson engaged in negligent conduct, which he has failed to do, this

claim would be barred by this statutory immunity. As previously discussed,

the Plaintiff has not forecasted evidence of any facts that even border on

gross negligence on the part of Defendant Bryson.

Therefore, the Plaintiff’s claim for negligent infliction of emotional

distress will be dismissed.

C. Claims Against Defendant Mission Hospital

1. Negligent Supervision/Training

“To support a claim of negligent retention and supervision against an

employer, the plaintiff must prove that the incompetent employee committed

a tortious act resulting in injury to plaintiff and that prior to the act, the

employer knew or had reason to know of the employee’s incompetency.”

Smith v. Privette, 128 N.C. App. 490, 494-95, 495 S.E.2d 395, 398 (1998)

(citation and internal quotations omitted).

The Plaintiff has not presented any forecast of evidence that Mission

knew or had reason to know that Bryson was incompetent, nor has he

successfully presented a forecast of evidence from which a reasonable jury

could conclude that Bryson committed a tortious act to which Mission’s

liability could attach. Therefore, summary judgment will be granted to

Mission on this claim.

2. Respondeat Superior

“The doctrine of respondeat superior generally allows an employer

(sometimes referred to as a ‘principal’ in this context) to be held vicariously

liable for tortious acts committed by an employee (sometimes referred to as

an ‘agent’ in this context) acting within the scope of his employment.” Creel

v. N.C. Dep’t of Health & Human Servs., 152 N.C. App. 200, 203, 566 S.E.2d

832, 834 (2002).

Because the Plaintiff has not successfully forecast any evidence of a

tortious act by Bryson, the only hospital employee remaining as a Defendant

in this matter, there is no underlying act for which Mission can be vicariously

liable. Therefore, the Defendants’ Motion for Summary Judgment will be

granted with respect to this claim.

D. Expert Witness Fees

Federal Rule of Civil Procedure 26 requires courts to order the party

seeking an expert witness’s deposition to “pay the expert a reasonable fee

for time spent in responding” to the deposition request, “unless manifest

injustice would result.” Fed. R. Civ. P. 26(b)(4)(E).

Here, the Plaintiff seeks an order directing the Defendants to pay for

the time the Plaintiff’s expert, Dr. Kaufman, charged for his deposition. [Doc.

224 at 1]. However, from the invoice provided by the Plaintiff, it appears that

the Defendants have already compensated Dr. Kaufman for his time spent

responding to their discovery requests, as Rule 26 requires, and the only

outstanding fee due to Dr. Kaufman is for the time the Plaintiff spent

conducting his own discovery with his own witness. These costs are not

within the scope of Rule 26, and therefore, this Motion will be denied.

V. CONCLUSION

The Plaintiff has failed to carry his burden in showing a triable issue

exists in order to defeat the Defendants’ Motion for Summary Judgment.

Therefore, all of the Plaintiff’s claims against the Defendants will be

dismissed, the Defendants’ Motion for Summary Judgment will be granted,

and the Plaintiffs Motion for Partial Summary Judgment will be denied.

ORDER

IT IS THEREFORE ORDERED that:

(1) The Defendants’ Motion for Summary Judgment [Doc. 165] is

GRANTED,

(2) The Plaintiff's Motion for Partial Summary Judgment [Doc. 170]

is DENIED;

(3) The Plaintiffs Motion for Payment of Reasonable Expert

Witness Fees [Doc. 224] is DENIED; and

(4) The Plaintiffs claims are hereby DISMISSED WITH

PREJUDICE.

The Clerk of Court is respectfully directed to close this civil case.

IT IS SO ORDERED.

Signed: June 27, 2024

Martifi Reidinger ee

Chief United States District Judge AS

21

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.