NCSU’s sovereign immunity arguments challenged in Poe Hall dispute

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  • A former North Carolina State University graduate student and employee is challenging the university's sovereign immunity arguments in a legal dispute linked to the Poe Hall shutdown.
  • Darren Masier has been battling leukemia since 2023. He secured a May 6 court order allowing him to investigate Poe Hall's potential impact on his cancer. University officials shut the building down last November after finding evidence of PCBs in the structure.
  • The state Court of Appeals issued a May 16 order temporarily blocking the lower court ruling. Masier filed a court document Tuesday responding to NCSU's request to extend the temporary stay into a more permanent order called a writ of supersedeas.

A former North Carolina State University grad student and employee is challenging the university’s sovereign immunity arguments in a legal dispute involving the Poe Hall shutdown.

The state Appeals Court issued a May 16 order granting the university a temporary stay in its dispute with Darren Masier.

Masier filed a court document Tuesday urging the Appeals Court to lift the stay and reject NCSU’s motion for a more permanent order called a writ of supersedeas. The university seeks the writ to block a trial judge’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.

The university shut the building down in November after finding evidence of PCBs in the structure.

Doctors diagnosed Masier in 2023 with an “aggressive” case of leukemia. He secured a court order from Wake County Superior Court Judge Hoyt 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 unanimous three-judge state Appeals Court panel granted NCSU’s request for a temporary stay in the legal dispute. The stay will last until appellate judges rule on the university’s request for a more permanent writ of supersedeas. NCSU seeks the writ to block Tessener’s May 6 ruling favoring Masier.

Tessener’s order would force NCSU to allow outside investigators into Poe Hall. The order also would give Masier access to university documents and allow his lawyers to question university officials.

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.”