court good morning welcome to this social distancing version of the th circuit we're happy to have you here this morning and look forward to hearing arguments now because the judge at the the judge at the eastern district which the rule of the most for summary judgment she ruled that my client had not proven the th element of damage she she says he but even she won even considering whether or not he had he had satisfied the duty a breach of causation that the issue why she dismissed the case she felt they had not what are the if you cut out one for me please what the physical injuries are that you claim were exacerbated by the incident and where that is in the record what you started with police it look it sounded like you were suggesting that the only issue is damages but is is i read the order  it you know page i think fifty six of the of the j it looks like the district court said was focused on you know damages as a proximate calls of the accident so it seems like we have the damages and they're proximate whether they were blocked only calls by the accident which is the issue before us do you agree with that  little bit harder to stop and start i hope i didn't keep you from answering something that and i understand that generally proximate calls is an issue of fact but it  appears that in north carolina own the issue of whether the testimony of your client which you rely on and i understand that is sufficient or whether you need an expert there their peers to be kind of us of a series of cases and the issue seems to focus on whether the injuries alleged are the type of injuries that an every day lay person could describe or whether they are more complex in nature and so if you could explain why you believe these issues aggravation of the of the damage you've talked about are more like the bruises from a car door or you know the chiles and the deaths from a car accident compared to them you know neurological damages for example and smith that would that would be helpful to me yes sir i would start by saying that i think a lot of patients you're talking about would address the different types of claims under north courts have we also have a negligent testing of emotional distress which i try to cite remembering that of course there are times where you do not need expert testimony and then we are we are in the common law negligence which is expert is gillikin in which i think said the issue of whether a disk is ruptured requires an expert or smith which says that whether the injury is it your position that there's there's not enough in the record for the court to have granted summary judgment with respect to those elements and in fact the court didn't simply say she was not reaching those other elements so i don't think the defendant can appeal her decision on the elements beyond saying the court should send it back to make or make a decision on the other elements and right now with another point  slummy was the owner and operator of the holiday inn express in kinston north carolina at the time of the incident that the plaintiff complains of in the complaint and it's the only remaining defendant for the purposes of this appeal the plaintiff originally brought three causes of action against the defendant's negligence for failing to keep the premises in a reasonably safe condition negligent and intentional infliction of emotional distress and breach of the implied warranty of habitability on appeal the only claim that the plaintiff has argued is that the issue of negligence should have survived an appeal on all of the other issues appears to have been abandoned because those were not raised in the in the brief before before the court so what we have here it is is a common law negligence claim yes ma'am yes and i have a question about common law and negligence in north carolina is common for an ordinary negligence claim in north carolina is proof of severe emotional can you just answer st yes or no does ordinary negligence to disprove the ordinary negligence in north carolina require proof of severe emotional distress not the new claim but ordinary americans right yes or no and you are that's the point that i was getting to and i'm sorry about that because in the johnson case the north carolina supreme court distinguishes between a need claim where you have to have evidence of severe emotional distress and what they say and an ordinary negligence claim where you do not have to have proof of severe emotional distress right right what they they answer is no that but that's all i needed the answer is no you do not need to prove severe emotional distress or an ordinary negligence claim in north carolina per johnson no ma what that case says if you're making claims for any type of emotional injuries and they don't arise to the severe level johnson specifically says you may not recover damages for fright anxiety things of that nature that don't arise to the legal definition of severe emotional distress so under johnson and in north carolina if you're making a garden variety negligence cla and your damages that you claim are some type of emotional injuries that do not iraq is too severe as required for negligent infliction of emotional distress johnson and other cases following johnson in north carolina says there is no that for these types of claims there needed to be expert testimony it sounds like your position is that unless the plaintiff shows severe emotional distress they cannot recover can you clarify your position because i think that's an important distinction at least to that certainly your honor so if you look at johnson and its progeny it says for cases that are not severe for any type of emotional claim the plaintiff has no recovery under north carolina law if they are claiming that they have met the definition of severe emotional distress the cases say that you don't have to have expert testimony  based on your explanation it sounds to me like you're saying and correct me if i'm wrong that you need proof of severe emotional distress for both and i and claim and an ordinary negligence claim no no ma'am the cases say from drop johnson if you don't have severe emotional distress you have no recovery at all under north carolina for emotional exacerbated what do you need for proximate cause for if those types of injuries in north carolina are good for the emotional damages if they do not arise to the definition of what is severe emotional distress which under johnson is a emotional or mental disorder that is severe and disabling generally recognized and diagnosed part professionals trained to do so that is the legal definition yes ma'am sorry just a hone in let's think back to judge squat obama's earlier question where there's a line of cases in north carolina it talks about if a lay person could understand how one effect flows from a certain cause like a bruise after a car accident or something like that then lay testimony is sufficient but if we're outside that realm you might need expert testimony to establish causation is that are we understanding that line of cases correctly do you embrace that line of cases or what are your thoughts on that your honor the cases that there's a hernia there's a disk that's been herniated and the court said the average person can't tell so you're going to need expert testimony on that i am talking about those cases not negligent infliction of emotional  of i don't think that's on appeal in front of us i think only the negligence cases in front of us here are i am not aware of any cases that talk about what type of emotional injuries one can ordinary negligence that are not negligent infliction of emotional distress claim i'm only aware of physical injury cases it cancel is it your position that aggravation of post traumatic stress disorder that aggravation of claustrophobia that aggravation of depression and aggravation of the reflex injuries our emotional damages is that is that it may be that your position if it is you know clarify that yet they just those to me did not seem like a motional distress whether it's severe or not claims but maybe yes your position yes your honor if you look depression post traumatic stress disorder things of that nature are recognized and diagnosable medical conditions if you go to the  standard diagnostic d s m four for psych psychologist and those are recognizable medical mental conditions that are diagnosed by a professional so those would fall within the definition of severe emotional distress so aggravation of those claims would necessarily have to be a negligent infliction of emotional distress kin and and to do so that's where the cases are a little more nuanced you don't necessarily need medical documentation a person could come in and say you know i had i was depressed people can describe conditions of depression but what the courts in north carolina have said that you need something more than just the plaintiff's testimony because it's very subjective  they're the kaufman case said skinny and i have a question and maybe this is what you get me to answer what north carolina case law requires expert testimony to present injury under a common law negligence claim but there are four physical injuries there are there are some that there are open obvious a broken bone where it may require expert testimony it just depends on the injury that the person is claiming whether it's something that would be ordinary and recognized by your average lay person or something that would require one case  supports that requirement for expert testimony in an ordinary negligence claim case i don't know that off the top of my head because that was not an issue that we raised in our brief but i've heard the questions about it and i agree with that as the general proposition of let's go on the reason you've heard the questions about it is because i don't want to speak for all the judges on the panel but at least for me that's what i read as an issue in this case that that the district court faulted the helen for not having expert testimony in connection with and then under negligence it said that it granted summary judgment for the reasons stated in its discussion of claimed us negligent infliction of emotional distress claims well that's it that's that's correct and you know so we're trying to figure out a little bit about what that that she that the court met by that and in the proceeding to pages it looks like three infliction of emotional distress claim and the rd is whether the discovery responses are sufficient if it looks to me like the st then the rd of those don't depend on whether it's negs an infliction of emotional distress or not maybe the nd one does but the st and rd would seem to apply to a negligence claim and and while she didn't you know elaborate extensively you know i think a fair reading of that is she's saying that you need more the next for testimony and that's what we're trying to figure out is why do you need more expert testimony is it because the injuries here are emotional which i didn't think  was the point but that that sounds like your point or is it because the injuries here are such that a lay person might not reasonably able to you know associate them with the with the with the incident the injuries claimed the only one that that i have seen any evidence and the evidence would be the plaintiff's own testimony was an aggravation of the acid reflux or or the all of the other claimed injuries fall within the emotional category some type of mental or emotional injury for gerd i would contend that that is something that that would require expert testimony it's beyond the knowledge of an average lay person as to whether a specific incident would have aggravated a preexisting condition is not open it's obvious that something happening inside that the person's body there are there are tests that have to be done to try to diagnose it we would need expert testimony to support the claim that it was in fact aggravated by this incident of being stuck in an elevator for twenty minutes thirty two minutes but it is twenty to thirty minutes depending on which testimony but you're right there is some evidence o there's this issue of how apparent is it is to allow a person and the cases also the same to talk about whether there was some media it affects some immediate indication of the injury and and you know the plaintiff says that you have being stuck in the elevator yet at least in the light most favorable to the plaintiff for thirty minutes suffering a panic episode  appearing as if he looked like a ghost when he removed when he left the elevator is that type of media it effect then that which is combined with some of the increased their pee in the increase medication you know what your response to that your i would agree that those are things that people could testify that they saw as a media responses but the anxiety the post traumatic stress disorder things of that nature all fall within the severe emotional distress definition and that's when you get into the line of cases that we cited where you have to have more than just the plaintiff's testimony for from him or herself that is some evidence of it but the cases that have allowed emotional distress claims to go forward d don't necessarily require expert testimony but they would need testimony from friends pastor family members people other than the plaintiff who can cooperate the plaintiff's claims  it was the williams vs home equity case that said the plaintiffs uncooperative evidence is insufficient to allow it to go to the jury so it needs to be the plaintiffs testimony plus something else  attack looking like a ghost things like that those would all be mental claims there was no evidence in the record of any immediate physical injury to the plaint and one point i would like to to raise is since that since this is a did novo review the court can of course look at any issue that that could have been grounds for summ judgment whether or not it was in the the district court's decision and we did have in our brief and extensive discussion of the north carolina law i'm a question your time's winding down appellant quote testified he does not recall any medical care provider who indicated that his conditions or the need for treatment were caused by the subject incident that's what the and psychiatry with told him that the incident quote impacted the treatment that he had been receiving for p t s d those still seem to square to that what you're are i'm looking at my notes i had put something in my notes about that there there was in the room in the record in the in the plainest deposition i had asked him you know which doctor said which condition was exacerbated by that and the plaintiff could not tell me which doctor had given which diagnosis or which treatment of that nature and i apologize i cannot find my notes on that but that was that was the plaintiff's testimony on that issue he could not even cooperate which position was treating him for which specific condition or had given him any opinions on  go ahead and wrap up mister art what will want my time is up so i believe i've addressed all the issues before the court and thank you very much for letting us appear before you in this manner thank you that they were just talking about with regard to certain case law and i would submit to you that a lot of the information you just heard about north carolina law with incorrect and i would love to have less opportunity for the presented those arguments and then i could have could is so is so understood in north carolina that the only high level comes when you have the additional intentional lesser known as inflation of claims there's no higher level there's no case law on the common law negative because it's  all right thank you counsel