Former student counters NCSU’s state Supreme Court arguments in Poe Hall dispute

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  • A former North Carolina State University graduate student and employee is asking the state Supreme Court to reject the university's attempts to block his investigation of Poe Hall.
  • The state's high court issued an order this month temporarily blocking an Appeals Court order that would have allowed Darren Masier to send outside investigators into the building that closed last November.
  • Masier challenges NCSU's arguments that sovereign immunity blocks his efforts to investigate the building and collect documents and depositions.

A former North Carolina State University graduate student and employee is urging the state Supreme Court to reject the university’s efforts to block him from investigating the Poe Hall shutdown.

Darren Masier seeks evidence about whether PCBs found in the building could have contributed to his cancer.

The state’s high court issued a June 13 order temporarily blocking a lower court order favoring Masier in his dispute with his former school. NCSU has asked for a more permanent writ of supersedeas that would block Masier from sending outside investigators into the building.

“NCSU is making a proverbial mountain out of a mole hill to further delay Dr. Masier from the relief ordered by Superior Court Judge Hoyt G. Tessener — allowing pre-suit discovery to put a stop to further delays of justice by NCSU,” Masier’s lawyers wrote in a court filing Monday. “This pattern of delay by NCSU is the very reason the trial court was duty-bound to order Dr. Masier relief pursuant to Rule 27: ‘to prevent a failure or delay of justice.’ The purpose of the court system is a search for the truth without delay — justice delayed is justice denied.”

Masier is conducting “limited pre-suit discovery,” according to the court filing. “The Court of Appeals denied NCSU’s Petition for Writ of Supersedeas, in part, allowing Dr. Masier’s representatives and expert witnesses access to Poe Hall to conduct such inspection and testing. This narrowly tailored pre-suit discovery will allow Dr. Masier to preserve evidence likely supporting claims related to his exposure to cancer-causing chemicals known as polychlorinated biphenyls (‘PCBs’) at NCSU’s Poe Hall.”

The former student responded to NCSU’s reliance on sovereign immunity to block his legal action. “[S]overeign immunity does not bar production of documents, depositions. or entry upon land or public property to conduct an inspection,” his lawyers wrote. “Sovereign immunity has nothing to do with whether any entity, public or private, should be required to produce information pre-suit for discovery purposes to preserve evidence.”

“Dr. Masier’s claims, and the claims of hundreds of his colleagues and fellow alumni, implicate serious public health concerns,” the court filing continued. “Additional testing by third-party experts will benefit everyone who has spent time in Poe Hall, the public, NCSU, and the public’s confidence in our State’s university system.”

“There will be no opening of litigation floodgates or shattering the concept of sovereign immunity because of this appeal,” Masier’s lawyers wrote. “This is a unique set of circumstances: Dr. Masier, a victim of toxic chemical exposure, had no choice but to go to court to seek redress to attempt to preserve evidence. The fundamental issue is the right of a citizen to preserve evidence where the sovereign, here NCSU, has announced (publicly) its intention to alter or destroy critical evidence.”

NCSU filed paperwork on June 10 seeking the temporary stay and the 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 Masier 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 this month confirming details of PCBs originating from the building’s heating, ventilation, and air conditioning system.

Masier worked in Poe Hall from 2009 to 2013. He went to court to force the university to allow him to collect information about the building.  

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 only as the “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.

“Dr. Masier’s claims implicate serious public health concerns,” his lawyers wrote. “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,” the document added.

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.”

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.”