JONATHAN PAGE, a minor, by and through his Guardian ad Litem, JOHN M. McCABE, and LOREE OLIVER, Plaintiffs,
SHU CHAING, Ph.D., individually and in her individual capacity, and SUSAN BOWMAN, individually and in her individual capacity, Defendants.
in the Court of Appeals 1 December 2016.
by defendants from order entered 7 March 2016 by Judge W.
Osmond Smith III in Wake County Superior Court Wake County,
No. 15 CVS 10825.
& Abrams, P.A., by Douglas B. Abrams, Noah B. Abrams, and
Melissa N. Abrams, and Raynes McCarty, by Charles Hehmeyer
and Martin McLaughlin, for plaintiff-appellees.
Attorney General Joshua H. Stein, by Assistant Attorney
General John P. Barkley and Special Deputy Attorney General
Gerald K. Robbins, for defendant-appellants.
Chaing, Ph.D., and Susan Bowman (together
"defendants") appeal from an interlocutory order
denying their motions to dismiss the case on grounds of
public official immunity. For the following reasons, we
dismiss the appeal.
Page ("juvenile") and Loree Oliver
("mother") (together "plaintiffs") first
filed a complaint in this matter on 10 August 2015.
Plaintiffs then filed an amended complaint on 18 August 2015
(the "first amended complaint") with the sole
purpose to correct the last name of one of the defendants. In
the first amended complaint, plaintiffs asserted negligence,
gross negligence, punitive damages, negligent infliction of
emotional distress, and medical malpractice claims based on
allegations that after juvenile was born to mother on 8
September 2010, defendants, both North Carolina Department of
Health and Human Services employees in the State Laboratory
of Public Health, followed newborn screening procedures that
they knew to be inadequate to evaluate older infants.
Plaintiffs allege, in the present case this failure resulted
in a missed diagnosis of a treatable inborn metabolism error
in juvenile that later caused juvenile to suffer a medical
emergency, resulting in severe and permanent brain damage.
filed motions to dismiss and motions to strike on 21 October
2015. Pertinent to this appeal, defendants' motions to
dismiss asserted that the court lacks subject matter
jurisdiction because (1) defendants are being sued in their
official capacity and the State has not waived sovereign
immunity, (2) plaintiffs have not specifically pleaded that
the State waived sovereign immunity, and (3) defendants are
public officials and are entitled to all immunities afforded
public officials. Notice of hearing filed 11 December 2015
indicated defendants' motions to dismiss would be heard
on 1 February 2016.
to the hearing on defendants' motion to dismiss,
plaintiffs filed a motion to amend the first amended
complaint and then filed a notice of hearing on 21 January
2016 indicating the motion to amend would also be heard on 1
February 2016. Plaintiffs then filed an amended motion to
amend the first amended complaint on 29 January 2016.
Pertinent to this appeal, the amended motion sought to insert
the words "individually and in her individual
capacity" after the names of each defendant, each time
the name of a defendant appeared in the first amended
motions came on for hearing in Wake County Superior Court
before the Honorable W. Osmond Smith III on 1 February 2016.
At the beginning of the hearing, defendants informed the
judge that they were proceeding on their motions to dismiss
on the bases that (1) the court lacked subject matter
jurisdiction, Rule 12(b)(1), because plaintiffs failed to
allege in the original complaint and the first amended
complaint in what capacity defendants were being sued and (2)
plaintiffs' failed to state a claim, Rule 12(b)(6),
because there was no duty owed to plaintiffs by defendants.
Defendants withdrew the remainder of their motions to
dismiss. In response, plaintiffs argued that they believed
the amended complaint was sufficient to show that defendants
were being sued in their individual capacities; but in any
event, plaintiffs filed the amended motion to amend the first
amended complaint to address defendants' confusion and
avoid "this kind of hypertechnical argument about the
form of the complaint." Upon considering the arguments,
the court granted plaintiffs' amended motion to amend the
first amended complaint. The court then heard and considered
arguments on defendants' motions to dismiss. The court
held the subject matter jurisdiction portion of
defendants' motions to dismiss was moot as a result of
its granting plaintiffs' motion to amend. The court then
denied defendants' Rule 12(b)(6) motion based on the
argument that defendants owed no duty to plaintiffs.
February 2016, the court filed an order allowing
plaintiffs' amended motion to amend the first amended
complaint. That same day, plaintiffs filed the second amended
complaint against defendants individually and in their
individual capacities. Defendants filed separate answers to
the second amended complaint on 2 March 2016. On 7 March
2016, the court filed an order denying "each and every
of the Motions to Dismiss by [defendants]."
filed notice of appeal from the order denying their motions
to dismiss on 1 April 2016. The notice specifically
referenced "motions to dismiss based on claims of public
official and sovereign immunity under Rule ...