NCSU asks Appeals Court to block trial judge’s ruling in Poe Hall dispute

North Carolina State University has asked the state’s second-highest court to block a trial judge’s ruling in a legal controversy involving the Poe Hall shutdown. The lower court order would force NCSU to allow outside investigators into the closed building.

The university closed Poe Hall last November after finding evidence of PCBs within the structure built in 1971.

Former NC State graduate student Darren Masier filed a legal action in April. Superior Court Judge Hoyt Tessener issued a May 6 order supporting Masier’s request for access to the closed building and to university documents.

A court filing Monday from private lawyers representing the university asked the state Court of Appeals to step into the case. NCSU seeks a temporary stay and a writ of supersedeas that would block Tessener’s ruling.

“The trial court lacked jurisdiction over the University and the subject matter of the action due to sovereign immunity, and the challenged Order is plainly erroneous,” NCSU’s lawyers wrote. “The Court of Appeals should stay the challenged Order because it requires immediate action before the University can prosecute its meritorious appeal, and the University cannot recover its sovereign immunity or its rights under the proper interpretation of Rule 27, if it is deemed applicable, if the improper pre-suit discovery proceeds under the challenged Order.”

The university’s court filing describes Masier as “a former employee and student at NC State who is contemplating bringing — but has not brought — personal injury claims.” He has “averred that he has cancer and that he ‘has reason to believe’ that he has ‘personal injury’ claims against the University related to PCB exposure in Poe Hall.”

Masier could file a workers’ compensation claim or a tort claim with the North Carolina Industrial Commission under state law. Instead he relied on Rule 27(a) of the North Carolina Rules of Civil Procedure “to seek pre-litigation discovery,” according to the NCSU court filing.

“This petition (the ‘Supersedeas Petition’) follows an unusual Order that wholly disregarded the University’s sovereign immunity to subject the University to expedited ‘pre-suit discovery’ involving Poe Hall in manifest contravention of Rule 27 and the trial court’s refusal to stay that Order,” NCSU’s lawyers argued. “The trial court’s challenged Order is based on inaccurate and unsupported accusations made against the University by opposing counsel and their incorrect speculation and conjecture that evidence could be lost.”

“Contrary to the unsupported arguments of opposing counsel below, this case is not about hiding evidence or a lack of concern for people who are sick,” the court filing continued. “The University’s appeal is about respecting the State’s sovereign immunity, proceeding in the proper forum, following the text and purpose of Rule 27, and allowing NC State to investigate, respond to, and otherwise address a matter that implicates regulatory and public health concerns.”

“Despite the unsupported accusations cast in the proceedings below, NC State is not hiding evidence or stonewalling. NC State is deeply concerned about the health and well-being of its past, present, and future students, employees, and visitors, including Requestor [Masier],” the university’s lawyers argued. “Guided by responsibilities to the public and broader community, not just a subset that may have decided to sue, the University voluntarily closed Poe Hall, engaged an environmental consultant to conduct a thorough and professional assessment of the building environment at Poe Hall, and requested a health hazard evaluation by the United States National Institute for Occupational Safety and Health.”

“These assessments are ongoing, while the University continues its normal operations,” the court filing continued. “NC State has been regularly consulting with agencies, including the Environmental Protection Agency (‘EPA’). NC State has communicated consistently and often with the community regarding its ongoing progress in the Poe Hall matter to date, including creating a public-facing website with all information about progress and publishing the results received from its consultant’s assessment. The University has engaged in these comprehensive assessments because it wants to gather data and pursue the answers that it and the community are seeking – not because it wants to hide the answers.”

A three-judge Appeals Court panel will address NC State’s petition. Court rules will block release of the participating judges’ names for 90 days.

The post NCSU asks Appeals Court to block trial judge’s ruling in Poe Hall dispute first appeared on Carolina Journal.


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