Robby Jessup

IndyWeek Report On Camp Child Abuse Cases

IndyWeek recently published the following cover story on a series of child neglect cases where our firm represents the Plaintiffs.  You can read the entire report here.

Every July for nearly forty years, Duke University offered children and teenagers with chronic illnesses—cancer, asthma, lupus, heart disease—a chance to do a normal-kid thing that, for them, had seemed out of reach.

They could go to summer camp.

Most sleep-away camps couldn’t accommodate them. Counselors didn’t have the right training. Facilities didn’t have the right equipment. So they were forced to miss out on formative experiences that their peers took for granted.

In 1979, three Duke employees—a physician, social worker, and play therapist—set out to change that. The university rented a Girl Scouts campground overlooking Kerr Lake in Henderson, about an hour’s drive northeast of Durham. Kids between the ages of seven and sixteen who were being treated at Duke University Children’s Hospital could spend a week there free of charge, their stays funded by donations. Camp Kaleidoscope lasted three weeks, each week dedicated to a different age group. Duke residents, students, social workers, child life specialists, and other employees served as counselors and staff.

More than a thousand children attended Camp K, as it was known, over the next thirty-eight years, many of them repeat campers. For some, it was their first time away from home. They played sports and learned to swim, did arts and crafts and were entertained by magicians. By all accounts, Camp K was beloved.

And then, suddenly, it closed.

On July 20, 2017, Duke Medicine Department of Pediatrics chairwoman Ann M. Reed and camp director Judy Panella disclosed the decision in an email to “Camp Kaleidoscope Families.”

“This very difficult decision,” they wrote, “was made following an encounter among several campers last week that required us to take a close look at our operations to ensure that we have appropriate policies and procedures in place that our families expect when they entrust their children to our care. … We look forward to returning next year and hope you will join us to again experience the transformative joy of Camp Kaleidoscope.”

But Camp K didn’t return in 2018. And, according to internet and database searches, Duke never publicly announced the camp’s closure, much less explained the “encounter” that prompted it to shutter or how its “policies and procedures” might have failed the children in its care.

Three lawsuits filed in Durham County against Duke University and several of its entities, as well as Reed and Panella—two in 2017 that have previously gone unreported and a third on Friday—aim to shine an unsettling light on that mystery.

According to the lawsuits, in the summer of 2017, five boys between the ages of seven and ten who were attending Camp Kaleidoscope were left alone in a cabin for at least an hour on multiple nights. One of them, the eight-year-old son of a Duke respiratory therapist, allegedly “repeatedly sexually assaulted” some of the others and led his bunkmates to perform sex acts on each other.

Duke, the lawsuits charge, “colluded and conspired to conceal what took place at Camp Kaleidoscope” and engaged in a “conspiracy to hide child sexual abuse that took place as a result of their negligence.”

In a statement on behalf of the university, Reed, and Panella, Duke Health spokesman Douglas Stokke declined to comment, citing Duke’s commitment “to protecting the privacy of minors and their families.”

But in their responses to the first two lawsuits, Duke’s lawyers rejected allegations that the university tried to hide anything. They also denied the sexual assault claims and maintained that the defendants “exercised reasonable care and diligence in their respective roles at the camp.”

The evidence is clear, however, that something disturbing happened at Camp K that summer.

Records included in court filings show that, on July 13, 2017, the five boys were “left unsupervised for an unknown amount of time in a cabin.” Four of them were then transported from the camp to Duke University Children’s Hospital’s emergency department for an evaluation. There, one of them told a psychiatry fellow they had been “sucking on each other [sic] penises.”

Then, a week later, Duke pulled the plug on the camp.

Something happened.

What that something was—whether it was sexual assault or something else, whether Duke tried to sweep a scandal caused by its own negligence under the rug or simply wanted to shield vulnerable children from psychological harm—will likely be the subject of a complex, confounding court battle that is only just beginning.

The lawyer representing the families of the three boys suing Duke, Robert Jessup, declined to comment or make his clients available for interviews. Their version of events is laid out in the three lawsuits, the most recent of which is the most detailed.

The boy at the center of that case is identified as John Doe, then a nine-year-old with brain cancer. His two bunkmates whose families sued Duke in 2017 are identified in their respective lawsuits as M.M., then seven, who has sickle cell anemia; and A.E., then eight, who has visual impairments and unspecified physical disabilities. Court documents indicate that another child who is not part of a lawsuit, referred to here as Boy 4, also engaged in sexual activity.

According to John Doe’s lawsuit, one of these children was HIV positive, and another had oral herpes, though the lawsuit doesn’t specify who had what.

The lawsuits identify the fifth bunkmate, who was then about a week shy of his ninth birthday, as “The Instigator,” and accuse him of sexually abusing the other boys. According to the Doe lawsuit, he did not have a medical condition. Instead, he was attending the camp because his father, the respiratory therapist, was a camp counselor that week.

Court records suggest the boy may have had a tumultuous home life.

The Doe lawsuit references a court case in Wake County involving the boy’s parents. In a court filing—attached to the Doe lawsuit—his mother describes his father as “aggressive,” says he has “serious mental instability that has required hospitalization on at least three occasions,” and claims that he’s “threatened suicide on multiple occasions.”

In 2013, according to court documents, the parents separated, and the father sought custody of their three boys, of whom “The Instigator” is the youngest. The parents reconciled, but the mother then sought a domestic violence protection order against the father, only to drop it a few days later. In December 2015, the father sued the mother’s alleged lover in Wake County under North Carolina’s alienation of affection statute. Finally, in February 2017—five months before the incident at Camp K—they divorced. (The INDY is not identifying the parents to protect the identity of the child.)

According to the Doe lawsuit, these five boys were supervised by two camp counselors—a Duke psychiatric resident and a child life specialist. Each night, the lawsuit says, the counselors left the boys “alone and unattended for an hour or more. These counselors were leaving these young children alone in the cabin, without any adult supervision, while they attended meetings in the staff house at the direction” of the camp’s leaders. (The counselors are not defendants in any of the cases.)

While state law makes it a misdemeanor to leave a child under eight “locked or otherwise confined” in a building without an adult “so as to expose the child to danger by fire,” there isn’t a statute specifying “a presumptive age at which a child may be left unattended,” according to the UNC School of Government.

On July 13, 2017, the last night of the camp week, the lawsuit says one counselor returned from that staff meeting and found “John Doe’s bunkmates performing oral sex upon one another.”

The most complete account of this event comes from an email, included in court files, that Boy 4’s mother sent to Panella and another Duke employee on July 16, 2017. The mother tacitly acknowledges that young children aren’t always reliable narrators, but says, “I’m a good read of [her son], and I’m really confident he’s telling me the truth.”

According to the mother’s email, the counselor reported that she walked in and saw all five boys with their pants down. However, Boy 4 told his mother she was mistaken. The boys had scattered when she entered their cabin, and John Doe—who the lawsuit says was present but not participating—was wearing shorts that were two sizes too big, so they might have fallen down. At the time, Boy 4 told his mother, John Doe was present and holding the flashlight while the other boys “engaged in activities involving mouth-penis, penis-anus, hand-penis contact.”

This had also happened the previous night, she wrote. Her son told her that he’d “hung out with them both night [sic] because they had been up playing games previously and ‘what they were doing [with their pants down] was boring, and I was just wanting them to stop so we could start playing games again like before.’”

According to the Doe lawsuit and the mother’s email, the idea for all of this originated with “The Instigator.”

But Panella offered a different explanation to Lindsay Terrell, a pediatrician working at Duke’s children’s hospital the night of July 13, 2017. Four of the boys—all except John Doe—were taken there after the counselor discovered them.

According to a note—included in court records—that a Duke child abuse specialist later sent to Reed, Panella told Terrell that the words “suck my dick” had been written on the cabin’s wall “where children could read it and allegedly ‘got the idea.’”

Panella called M.M.’s parents that night and A.E.’s guardians the next morning to tell them their children had been sexually assaulted and potentially exposed to HIV, according to their lawsuits. In its responses, Duke admitted that she called but denied that she said they’d been assaulted or told them about the potential HIV exposure.

M.M., his family’s lawsuit says, began “undergoing a rigid prophylactic treatment for HIV/AIDS.”

But no one informed John Doe’s parents or guardians what had happened, his family’s lawsuit says, or that his bunkmates “had sexually communicable diseases and that there may be a potential risk of exposure to HIV/AIDS and herpes.”

Instead, it argues, Duke “conspired to conceal” what took place and “hoped that John Doe would not tell his parents what he had witnessed. To date, [Duke has] refused to offer any compensation whatsoever or in any way offer to make right what happened to John Doe at Camp Kaleidoscope.”

The claim of a cover-up appears to rest primarily on one sentence from the email Panella and Reed sent to “Camp Kaleidoscope Families” on July 20, 2017, and how you interpret it: “To respect our legal and ethical requirements to safeguard patient privacy, we ask that you refrain from posting any information about the Camp on social media or in communications to parents and other individuals or groups.”

In the Doe lawsuit, this line is presented as an indication that Duke had something to hide. Reed is said to have “cryptically requested that the parents of campers, camp counselors, and staff of Camp Kaleidoscope not post about or otherwise communicate about the above described events … in an effort to conceal the occurrence of the same. This email was in furtherance of [Duke’s] conspiracy to hide child sexual abuse.”

Duke dismisses that argument. In its responses to the first two lawsuits, the university says the email was intended for the camp’s staff, not campers’ parents, despite it being addressed to “Camp Kaleidoscope Families.” (The email also says that news of the camp’s closure “will be communicated to families shortly,” which seems to support that claim.)

And that supposedly damning line, Duke’s lawyers argue, doesn’t show an intent to conceal anything.

Indeed, it would make sense that Duke wouldn’t want staffers or even campers’ family members gossiping about what happened—not merely to protect the university’s reputation, but to protect the children involved, who the lawsuits allege had already suffered psychological distress.

As Duke’s lawyers put it: “The email speaks for itself.”

Exactly what transpired inside that cabin may never be known, at least with any certainty. The only witnesses, after all, are the children themselves.

But what is known, based on court documents, is unnerving: “Medically complex children” as young as seven were “left unsupervised for an unknown amount of time,” as Panella admitted when the kids were taken to the hospital. During that time, some of them had sexual contact with each other—what the lawsuits describe as sexual assault.

Something went wrong at a place that had done so much good for so long.

As Panella and Reed wrote in that email: “We are proud that Camp Kaleidoscope has been serving children with chronic medical conditions since 1979. In that time, we have safely and successfully cared for hundreds of children. The reevaluation of our policies and procedures will lead to an even better experience for all who attend Camp K in the future.”

But only if there is a Camp K in the future. And that’s not clear either.

After multiple inquiries about the camp’s status, Stokke, the Duke Health spokesman, responded Tuesday morning, “We don’t have anything further to provide.”

Robby JessupIndyWeek Report On Camp Child Abuse Cases
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Successful Jury Verdict in High-Profile Shooting Case

WRAL recently covered one of our Jury Trials in a mini-series, Presumption of Fear.  Below is their story from the day after the verdict.  You can also watch video of closing arguments here.

A Harnett County jury Wednesday found that an Angier pastor is responsible for the wrongful death of his son-in-law, who he shot and killed in 2013.

The Rev. Pat Chisenhall has said 23-year-old Christian Griggs was threatening him and breaking into his home when Chisenhall shot him six times with a .22-caliber semiautomatic rifle. Griggs was struck once in the stomach, once in the shoulder and four times in the back. The pastor was never criminally charged in the shooting, and said he was fearful for his and his daughter’s lives.

The Griggs’ family filed a wrongful death lawsuit against Chisenhall in 2015, disputing his version of events. They say their son was at the Chisenhall homestead to pick up his then 4-year-old daughter for scheduled visitation.

The case was the subject of an investigative series published and aired by WRAL News in November.

It took the 12-member jury about an hour and a half to return a unanimous verdict that Chisenhall is civilly liable for the wrongful death of Christian Griggs and was not protected by arguments of self defense, defense of his daughter’s life or defense of his home. They awarded $250,000 in damage to Griggs’ estate, money that will go to his 10-year-daughter Jaden.

Dolly Griggs, the plaintiff in the suit and the mother of Christian Griggs, said after the verdict that the citizens of Harnett County “saw the truth in the courtroom today.” She also called on elected officials to act.

“The truth is out there, and now I challenge DA Stewart, Sheriff Coats, Governor Cooper, Josh Stein to look into this case, because Harnett County needs help,” Dolly Griggs said. “Please help us here.”

Speaking for Chisenhall, who left the courtroom shortly after the verdict, attorney Robert Levin said his client was disappointed in the decision, but did not plan to appeal.

Neither Harnett County Sheriff Wayne Coats, whose office investigated the case, nor District Attorney Vernon Stewart, who ultimately decided not to press criminal charges, were available for comment Wednesday afternoon following the verdict.

At the center of the civil case was North Carolina’s Castle Doctrine, which protects those who injure or kill in defense of their lives or their property while in their homes, workplaces or vehicles.

Testimony recounted Griggs’ final moments

The jury heard five full days of testimony in the case, which saw evidence from the medical examiner who performed Griggs’ autopsy, detectives who investigated the case, Griggs’ father and Chisenhall himself, who said on the stand he had trouble remembering many of the details of the shooting.

The pastor of the Abundant Life Worship Center in Angier said on the stand that Griggs had arrived at his home in Angier on the morning of Oct. 12, 2013 hostile and demanding to see his estranged wife, Katie, and their then 4-year-old daughter Jaden.

Chisenhall said Griggs became enraged when he was informed his wife had taken out a restraining order against him for an incident the night before. There was no such restraining order, but Katie Griggs had taken out misdemeanor warrants against her husband the night before for breaking and entering, property damage and domestic criminal trespass.

Chisenhall and his daughter both called 911, the jury heard, and retreated into Chisenhall’s home on NC Highway 210 in Angier. He said he struggled to get the door closed with his son-in-law on the other side, and moments later heard the glass in the front window shatter. But following a diagnosis of post-traumatic stress disorder, Chisenhall said he couldn’t remember anything after that glass broke.

That left him unable to remember interviews he gave to Harnett County sheriff’s deputies in the days after the shooting, when he said he shot Griggs from behind a sofa 10 to 12 feet away from a partially busted in window as his son-in-law was attempting to crawl in. Chisenhall told investigators at the time that Griggs at threatened to kill him and his daughter, and that they were both terrified of what would happen if he got into the house.

On the stand, Associate Chief Medical Examiner Lauren Scott said her autopsy on Griggs in 2013 showed that he had been shot six times. Four of those shots were in the back, with upward trajectories that suggested Griggs was either bent parallel to the ground or lying down when he was hit by the Winchester rifle.

Scott also testified that two of the four shots in the back would have been fatal wounds for Griggs, regardless of any medical intervention.

Chisenhall described his son-in-law as a great, but troubled man who he loved and was close with throughout a tumultuous, on- and off-again relationship with his daughter. He presided over their marriage when they were just out of high school at 18 years old, new parents of a two-month old daughter. Griggs wrote the pastor letters while he was deployed as an enlisted soldier, and considered him at one point to be his spiritual adviser.

Chisenhall even baptized Griggs in his backyard swimming pool three weeks before the shooting.

But he said Griggs had a darker side that emerged on Oct. 12, 2013, when he said he saw his son-in-law launched into a “monstrous rage” that terrified him and his daughter. His lawyer argued he had no choice but to take Griggs’ life in self-defense.

Attorneys for Griggs’ family countered that the shots in Griggs’ back demonstrated that he was no longer a threat, and that arguments of self-defense and defense of habitation did not apply.


Robby JessupSuccessful Jury Verdict in High-Profile Shooting Case
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One Million Dollar Recovery Reported in Trial Briefs Magazine (Wrongful Death Case)

Trial Briefs Magazine reported as follows on one of our recent cases:

In February of 2019, Robby Jessup [of RDU Injury Law] in Raleigh settled a Wake County wrongful death case for the policy limit of $1 million. Plaintiff’s Decedent was a 75-year-old man who was hit in a marked crosswalk at Rex Hospital. Despite heroic efforts to save him, he ultimately died from his injuries.

Liability was disputed, but the main issue in the case was how to determine life expectancy and economic loss. These obstacles were overcome by a complete medical history summary and an economist’s opinion of the value of the home health care services the Decedent had been providing to his wheelchair-using wife. Gary Albrecht, PhD was utilized as Plaintiff’s expert.

Robby JessupOne Million Dollar Recovery Reported in Trial Briefs Magazine (Wrongful Death Case)
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Hurricane Insurance Claims 101

Expanding in size, Hurricane Florence is continuing on a beeline toward Eastern North Carolina as an “extremely dangerous” Category 4 storm.

Catastrophic flooding and destructive winds are becoming very likely everywhere from the Triangle to the Coast.

Meteorologists are reporting that this storm may be comparable to Hurricane Hazel in the 1950s.

Nearly one in four homeowners and business owners in Eastern North Carolina can expect some level of property damage from Hurricane Florence.

In light of these odds, we have prepared the below tips for preparing for and making inevitable hurricane related insurance claims:

  1. Photograph the condition of your property before the storm.

Oftentimes, insurance companies will raise questions as to whether damage was storm related or pre-existing. If you have damage from a hurricane, you will want to be able to show your insurance company proof of your property’s condition immediately before the storm. This includes both real and personal property. Take your I-Phone and photograph the condition of the interior and exterior of your home or business. This includes furniture, fences, sheds, garages, attics, basements, trees and landscaping.

  1. Have copies of your insurance policies and/or declaration pages.

It is important to know what insurance coverages you have before a storm hits. Of equal importance, you need to review these documents to know how to quickly make an insurance claim if and when you sustain damage.  This should include but not be limited to any and all policies of car insurance, homeowners insurance, flood insurance, and business insurance that you have.

  1. If you have storm damage, make an insurance claim as soon as possible.

In catastrophes, insurance companies generally handle claims on a first come, first serve basis. If you call your insurance company immediately after the storm, you may experience long wait times, but be patient. It will pay-off in the speed at which your claim is adjusted. Likewise, don’t let someone put you or claim on the backburner. Be persistent in your communications. (As an aside, many companies now have apps or websites where you can make your insurance claims online, which may save you time on the phone.)

  1. Write down your claim number and keep it handy.

When you make an insurance claim, it is easy to overlook writing down your claim number. However, writing this number down and keeping it handy can save you a lot of time down the road. If you keep this number, insurance company representatives will be able to immediately find your claim each and every time you call.

  1. Keep Notes.

Take notes documenting every contact with your insurer, noting the person with whom you spoke, his or her contact information, the date that you spoke, and what you spoke about. After catastrophes, insurance companies are overwhelmed, and you should take the initiative in making sure your calls and correspondence make it to the right person and also that adjusters do what they promise. Additionally, if things go haywire with your insurance claim, it is important for your lawyer to get these notes down the road.

  1. Keep Receipts.

If you sustain storm damage, you have a duty to mitigate further damage to your home or business. This means you must make any and all reasonable temporary repairs to prevent further damage to your property. However, keep receipts for any expenses related to immediate repairs you had to make, as your insurer will generally be required to reimburse you for these expenses.

Likewise, keep receipts for any living expenses you incur (i.e. lodging & meals) if you could not return to your home in the wake of the storm. With wind claims, you should generally get reimbursed for such additional living expenses. If your claim is limited to flood insurance, additional living expenses might not be covered.

If you are a business owner, quickly develop a short-term plan for your business (i.e., open in temporary location, shut down etc.), and keep receipts/records for all purchases and services from the date of your loss until your claim is satisfactorily resolved.

  1. Photograph the condition of your property after the storm.

If you have storm damage, it is important that you photograph it, and that you photograph it before any temporary or permanent repairs are made to your home or business. Do not rely on the insurance company to document the damage to your property. Take the initiative and do it yourself. This instruction is not limited to real property and structures. If you have personal property that was damages in the storm, photograph that damage too.

  1. Know who you are dealing with.

When the insurance company sends out an adjuster, ask if he/she is an employee of the insurance company or an independent adjuster (I.A.). In catastrophes, insurance companies will oftentimes contract claims out to third-party companies. If you encounter an I.A., ask if they are authorized to make claim decisions and payments on behalf of your insurance company and ask for the name of the in-house company adjuster to whom the I.A. will be sending your information. If you have problems or issues with the I.A., having the contact information for the in-house company adjuster can be of great assistance.

  1. Flood versus Wind Damage

If you think you only have flood damage to your home or business, and you don’t have flood insurance, call your insurers anyway. Some homeowners and business policies that exclude damage related to flooding may cover damage from water and wind.

  1. Your vehicles should be covered.

Damage to your vehicles from downed trees and flooding should be covered by the comprehensive portion of your auto insurance. If your vehicle is damaged, promptly make a claim with your car insurance company and photograph its condition.

*Ask for help if you need it!

Most insurance claims are resolved on friendly and fair terms, but sometimes they are not. If you run into an adjuster who is making your life more difficult than it should be, arguing about what is or is not covered, or arguing with you or a contractor about the extent of damage to your home or business, call a lawyer immediately.

For a free consultation, you can reach me at [email protected] or (919) 821-7700.

Stay safe in the storm,

Robby Jessup

Robby JessupHurricane Insurance Claims 101
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Two Million Dollar Recovery Reported In Trial Briefs Magazine (Wrongful Death Case)

NCAJ’s Trial Briefs Magazine recently featured the following story on one of our cases:

In April of 2018, Robby Jessup and Joan Davis [of RDU Injury Law] obtained a Two Million Dollar settlement for the wrongful death of a motorcyclist.

Phil Sabino, a 45-year-old father, was killed in August of 2015 when a Honda Accord crossed under the median cable on I-540 and entered his lane of travel.  The driver of the Honda Accord was an inexperienced driver, who became confused and panicked in the merging traffic lanes of the I-540/I-40 interchange.

The insurance company for the Honda Accord tendered its liability policy limits of $100,000 within weeks of the crash.  Sabino had UIM coverage on his motorcycle of $250,000, and the attorneys discovered another automobile policy with $250,000 of UIM that was stacked for a $500,000 recovery.  A limited release and waiver of subrogation for the liability and UIM policy limits was negotiated.

Thereafter, upon completing an accident reconstruction, witness interviews, and evaluation of thousands of records from the NCDOT, numerous problems with the cable median barrier were discovered.

A tort claim was filed in the Industrial Commission against the NCDOT, and after a year of litigation, a separate lawsuit was filed against the NCDOT contractor charged with maintenance and repair of the cable medians.

After 23 depositions, including eyewitnesses, state officials, maintenance crews and company representatives, as well as local accident reconstruction engineers and national cable median experts on both sides, the cases against the NCDOT and contractor were settled post-mediation, two weeks before trial, for an additional $1.5 Million.  An aggregate settlement of Two Million Dollars was recovered for the Sabino family.

Robby JessupTwo Million Dollar Recovery Reported In Trial Briefs Magazine (Wrongful Death Case)
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Multi-Million Dollar Advocates Forum Inducts Robby Jessup & Joan Davis

Robby Jessup and Joan Davis of Raleigh, N.C., have been inducted as lifetime members of The Multi-Million Dollar Advocates Forum.   Membership is limited to attorneys who have won multi-million dollar verdicts, awards and settlements. Forum membership acknowledges excellence in advocacy, and provides members with a national network of experienced colleagues for professional referral and information exchange in major cases. Members must have acted as principal counsel in at least one case in which their client has received a verdict, award or settlement in the amount of two million dollars or more.

Robby JessupMulti-Million Dollar Advocates Forum Inducts Robby Jessup & Joan Davis
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Five Million Dollar Recovery Reported In Trial Briefs Magazine

The April 2018 Edition of Trial Briefs Magazine featured the following story on a recent litigation victory by our lawyers:

“In December of 2017, B. Joan Davis and Robby Jessup [of RDU Injury Law] obtained a $5.2 Million Dollar recovery for a condemnation client whose property was impacted by the Peace Street Bridge Project in downtown Raleigh.

In November of 2016, the NCDOT filed a condemnation action against the subject property to take approximately 0.22 acres of a 0.75 acre tract.  The action further imposed control of access across most of the remaining tract.

The NCDOT originally estimated the entire property to be worth $3,255,500 and deposited $1,227,900 with the Wake County Superior Court, which the NCDOT estimated to be just compensation for the portion of the property taken.

Subsequently, after having the property privately appraised and utilizing a traffic engineer to evaluate future access to the property, the NCDOT settled the condemnation case for $2,300,000.

During the pendency of the litigation, Ms. Davis and Mr. Jessup assisted their client in negotiating a sale of the remnant piece of the subject property for $2,905,375.

Accordingly, the landowner received a total recovery of $5,205,375 for their 0.75 acre tract of land.”


Robby JessupFive Million Dollar Recovery Reported In Trial Briefs Magazine
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Why Can’t The Jury Consider All Of My Medical Bills?

Prior to October of 2011, juries could consider the full amount of an injured person’s medical bills; however, that was changed when Rule 414 of the North Carolina Rules of Evidence was amended to read as follows:

“Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. This rule does not impose upon any party an affirmative duty to seek a reduction in billed charges to which the party is not contractually entitled.” (2011-283, s. 1.1; 2011-317, s. 1.1.)

Said slightly differently, evidence of medical expenses is limited to the amounts actually paid to satisfy the bills, and the amounts actually necessary to satisfy the bills not yet paid. This rule has become to be known as “Billed vs. Paid.”

This is important because the State Health Plan, Private Health Insurance, Medicaid, and Medicare all receive significant discounts when paying medical bills.

Before October of 2011, evidence of payments made by health insurance, Medicare or Medicaid were not admissible in trial and were not to be considered by a jury in determining damages for medical expenses.

Now, Plaintiffs generally can only present to a jury the amounts paid by health insurance or other collateral sources to satisfy medical bills.

To illustrate this with an example, Bob is crossing in a crosswalk, when a vehicle suddenly runs a red light and breaks Bob’s legs.  Bob is insured with Blue Cross Blue Shield of North Carolina.  Bob incurs $50,000 in medical bills at a local hospital for reconstructive surgery to his legs.  Blue Cross Blue Shield of North Carolina receives 50% off Bob’s medical bills pursuant to its provider agreement with the local hospital.  Therefore, under Rule 414, Bob can only present $25,000 of medical expenses to the jury.  Before October of 2011, Bob could present the full $50,000 of bills to the jury.

You may think that Rule 414 will not affect the pre-litigation value of a claim because it is a Rule of Evidence. This is not the case. The insurance companies calculate medical damages in settlement negotiations in the same way that the courts do during trial. They are adjusting what you may ultimately recover in Court, so they are using Billed vs. Paid. Over the past 6 years, Billed vs. Paid has significantly reduced the average value of personal injury claims.

Robby JessupWhy Can’t The Jury Consider All Of My Medical Bills?
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