State Supreme Court temporarily blocks order against NCSU in Poe Hall dispute

The state Supreme Court granted North Carolina State University a temporary stay Thursday in a legal fight tied to the shutdown of Poe Hall. The high court blocked an Appeals Court order that would have allowed outside investigators into the building that closed last November.

NCSU filed paperwork Monday seeking the temporary stay and a more permanent order called a writ of supersedeas.

The university’s court filing suggested that the case “will impact the landscape of litigation involving the State — and litigants generally — for decades to come.”

A state Appeals Court order issued June 5 would have allowed a former NCSU grad student and employee to inspect and conduct testing in Poe Hall. The order sided with the former student in all but two points of dispute with NCSU.

Appellate judges backed NCSU’s request to withhold requested documents and to decline to make university employees available for witness depositions.

Appellate judges split, 2-1, in issuing the order. The dissenting judge would have ruled in the university’s favor on all issues.

The university shut Poe Hall down last November after finding evidence of PCBs in the structure. NCSU released new information Monday confirming details of PCBs originating from the building’s heating, ventilation, and air conditioning system.

Darren Masier, who worked in Poe Hall from 2009 to 2013, is fighting cancer. Masier went to court to force the university to allow him to collect information about the building.  Masier seeks information that could help determine whether working in Poe Hall contributed to his health issues.

Wake County Superior Court Judge Hoyt Tessener issued an order in May supporting Masier’s requests. The order granted Masier access to Poe Hall for inspection and testing.

NCSU’s lawyers petitioned the Appeals Court to block Tessener’s ruling. The university argued that sovereign immunity barred Masier’s legal action. The Appeals Court had granted the university a temporary stay on May 16.

Appeals Court rules shield the names of judges participating in the case for 90 days. The judge who sided with NCSU on all issues is identified in Wednesday’s order only as “judge concurring in part and dissenting in part.”

That judge agreed with NCSU’s arguments that Masier followed the wrong legal procedure. “Petitioner has shown a likelihood of success in its appeal,” the dissenting judge wrote. “There is a likelihood that it will be determined in this appeal that use of Rule 27 procedures in this case is inappropriate because it appears Respondent wants to use the procedures to find out information to aid in the drafting of a complaint and to figure out whom else, in addition to Petitioner, to sue.”

“Though our Rule 27 has not been subject to much jurisprudence in our State, federal courts and other state courts with a similar rule/procedure allowing for pre-action discovery have instructed that Rule 27 is not to be used as a means to ascertain evidence to aid in the drafting of a complaint or to determine whether a cause of action exists and, if so, against whom the action should be instituted,” the dissent continued.

There is a “likelihood” that Masier’s decision to use “Rule 27 procedures” was inappropriate, the dissenter added. Masier could have filed a lawsuit that would have allowed him to move forward with legal discovery against NCSU.

“Finally, there is at least some likelihood of success that it will be determined that the trial court lacked jurisdiction to enter the order against Petitioner, which enjoys sovereign immunity,” the dissenting judge wrote.

Masier filed a court document on May 28 urging the Appeals Court to lift its stay and reject NCSU’s motion for a more permanent order called a writ of supersedeas. The university sought the writ to block Tessener’s May 6 ruling favoring Masier.

Working and studying at the university from 2009 to 2013, Masier earned master’s and doctoral degrees. His office and classes prompted him to spend “approximately thirty hours per week” in Poe Hall, according to his court filing.

Doctors diagnosed Masier in 2023 with an “aggressive” case of leukemia. He secured a court order from Tessener allowing him to look into Poe Hall’s potential connection to his cancer.

“This matter involves an appeal taken from an interlocutory discovery order that does not negatively affect a substantial right of NCSU, and from which there is no right of immediate appeal,” Masier’s lawyers wrote. “The relief granted by the trial court allows Dr. Masier to conduct pre-suit discovery and requires that NCSU produce certain public records, produce witness(es) for a deposition, … and permit entry of a currently closed state-owned building for the purpose of conducting an inspection and non-destructive testing.”

“This pre-suit discovery is all in an effort for Dr. Masier to preserve evidence likely supporting claims he has related to his suspected exposure to cancer-causing chemicals,” the document continued. “In urging the Court to issue a writ of supersedeas, NCSU primarily argues that sovereign immunity is implicated and that irreparable harm will befall NCSU if pre-suit discovery is allowed.”

“The primary contention of harm raised by NCSU is that they are harmed by the loss of sovereign immunity; however, sovereign immunity does not bar production of documents, depositions or entry upon land or public property to conduct an inspection,” Masier’s lawyers wrote. “Sovereign immunity has nothing to do with whether any entity, public or private, should be required to produce information for discovery purposes.”

“Dr. Masier’s claims implicate serious public health concerns,” the document continued. “The environmental conditions and additional testing regarding those conditions are vital evidence underlying Dr. Masier’s potential claims. There is evidence that environmental conditions in Poe Hall are in the process of being altered.”

“If this Court blocks the pre-litigation discovery ordered by the trial court pending the outcome of this appeal, key evidence underlying Dr. Masier’s claims relating to the environmental conditions at Poe Hall could be lost forever, causing Dr. Masier irreparable harm,” his lawyers wrote.

A court filing from private lawyers representing the university asked the Appeals Court to step into the case.

“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 described 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 have filed 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.”

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