FILeEp STATE OP NORTH CAROLINA Ge ceveras.courr orsusnics SUMERIOR COUIEE DIVISION COUNTY OF BUNCOMBE, M400 13 p> {ite Hse Belo) STONE SMATHERS, by and throuBly Nordan, Esq. as Guardian ad liter, AST SMATHERS, individually and as pent and natural guardian of Stone Smathers, ZEBULON SMATHERS, as_parent™ and ‘natural guardian of Stone Smathers, Cee. 8.6, Plaintiff, HCA HEALTHCARE, INC. ‘MH MASTER HOLDINGS, LLLP, MH HOSPITAL MANAGER, LLC, ‘MH MISSION HOSPITAL, LLLP, Defendants. BUNCOMBE COUNTY FILENO. 22 CVS 3616 MOTION TO CONSOLIDATE CASES FOR DISCOVERY AND TRIAL, ‘STONE SMATHERS, by and through Richard ‘Nordan, Esq. as Guardian ad litem, ASHLEY SMATHERS, individually and as parent and natural guatdian of Stone Smathers, and ZEBULON SMATHERS, a5 parent” and ‘natural guardian of Stone Smathers, Plaintifs, SUMMER K. GILMER, MD and LAUREL OB-GYN, P.A,, Defendants. BUNCOMBE COUNTY FILENO. 23 CVS 1035 Page 1088[NOW COME PLAINTIFFS, who through undersigned counse and pursuant toW.C.R, Ci P. (’Rule") 42 move the Court to consolidate the two abovelsted actions for all purposes, Including discovery and tril, and for entry ofa new consolidated Discovery Scheduling Order. In support ofthis Motion, Paintitis respectfully show unto the Court the following: FACTUAL AND PROCEDURAL BACKGROUND. 1. Plaintiffs filed a complaint on September 25, 202, against Defendants HCA Healtheare, Ine; MH Master Holdings, LLLP; MH Hospital Manager, LLC; and MH Hospital Mission Hospital, LLLP (hereinafter “Hospital Defendants") in Buncombe County, File No, 22 CVS 3616 ("Smathers F) 2 On November 21, 2022, pursuant to N.C.GS. § 7A-47.9(¢), this Court appointed. the Honorable Eric Levinson to preside over this matter. 3 On February 2, 2023, Judge Levinson entered the Diseovery Scheduling Order in ‘Smathers (the “DSO"), which included the following deadlines: April , 2023 ~ Production of medical lien information; >. May 1, 2029 ~ Completion of named party depositions; June , 2029 ~ Plaintiffs expert disclosure deadline; September 16, 2023 (or 90 days post last expert deposition) ~ Hospital Defendants’ expert disclosure deadlines December 14, 2028 ~ Close of discovery and mediation deadline; f. December 29, 2023 ~ Dispositive motions deadline; and & February 12, 2024 ~ Tvial, 4. ‘Through discovery in Smathers J, including the Hospital Defendants’ written, iscovery and the depositions of OBYGNs Kirby Kurtz and Summer K. Gilmer, Plaintitis ‘determined they also have claims arising from the same transactions and occurrences against ‘Summer K, Gilmer, M.D. and Laurel OB-GYN, PAA. Page 20f85. Accordingly, Plaintiff fled a complaint on March 19, 2025, against Defendants Summer K. Gilmer, MD and Laurel OBGYN, P.A. (hereinafter “Defendant Gilmer" and “Defendant Laurel OB") in Buncombe County, Fle No, 23 CVS 2095 (‘Smathers 1). 6 Both Smathers Fand Smathers If concer the labor of Paint Asley Smathers and the delivery of Plintiff Stone Smathers, the injuries to each, and the serious and permanent damages suffered by cach, for which Pails allege Defendants are jointly and severaly lable. Plintifs allege these injuries and damages occured due tothe negligence committed by the Hospital Defendants, Defendant Gilmer, and Defendant Laurel OB during the Smathers’ labor and delivery care experience at Mision Hospital in Asevil, North Carolin in March 2020. 7 For what Plaintiffs contend are obvious reasons, they desire thee cases to be consolidated for discovery an tia 8 On March 15, 2023, Plaintiffs contacted defense counsel in Smathers F and ‘Smathers 1 and asked if they would respectively consent to consolidate the two matters for Aiscovery 9. On March 21, 2028, counsel for Defendant Gilmer and Defendant Laurel OB in ‘Smathers If responded and agreed to consent to consolidation of fact lscovery only, and suggested consent would be provided to consolidate the cases for all discovery if the Cour ‘modified the cae deadlines set frthin the existing DSO entered in Smathers previously entered on February 2, 2023. 10. ‘Thereafter, counsel for Defendants in Smathers informed Plaintifs their postion ‘was “consistent with [Defendants Gilmer and Laurel OB} 13, On April 6, 2025, counsel for Plantifs responded and informed defense counsel, in both Smathers Ind Smathers I that it intended to move for consolidation of the two cases both for discovery and for trial, restated what it understood to be defense counsel's position, and suggested the parties meet and conte. Page 30f812. On April 10, 2023, counsel for Plaintifis and both sets of Defendants met and conferred. Defense counsel in Smathers I and Smathers II informed the undersigned that they ‘would consent to both consoldation for diseavery and tral so longaasthe Court entered a modified SO applicable tothe consolidated actions that extended all deadlines, including the tial date, ith such dates tobe set by conference with the Court. 43. As part of that meet and confer, all counsel agreed that these two cases were candidates for consolidation, and all counsel agreed to jointly request thatthe Court to appoint ‘Judge Levinson to also preside over Smathers IT pursuant to N.C.G.S, § 7A-47.9(¢, thus making him the judge presiding over both cases. 14. Plaintiffs promptly responded by email that they would not consent to moving the ‘tial date. It is Plaintifs’ belief that the current trial February 12, 2024 trial date ean, through an. orderly progression of discovery now to be conducted with and including Defendants in Smathers ‘1, remain unchanged as previously ordered by Judge Levinson. Plaintiffs, however, defer tothe discretion of Judge Levinson whether any discovery deadlines should be modified. 15, To be clear, itis Plaintiffs’ position that Smathers I and Smathers IT should be consolidated for discovery and trial, and the current trial date of February 22, 2024 be maintained. Plaintiffs canbe ready to ty the consolidated cases atthe curren tral date and believe the current trial date should not be disturbed. 16, Plaintiffs have communicated this position to defense counsel inthe two actions, who have confirmed they do not consent to Plaintiffs position set forth herein. Page 4 of 8RATIONALE FOR CONSOLIDATION 17. Parsuant toN.C. Civ. P. Rule 42(a), the trial court has the authority to consolidate actions for discovery and/or tria:” [When actions involving a common question of law or fact are pending in one division of the court, the judge may order a joint hearing or tral of any or all the matters in issue inthe actions; he ‘may order all the actions consolidated; and he may make such orders conceming proceedings therein as may tend to avoid unnecessary easts or delay] N.CGS. §1A4, Rall 42(8) (2029), 18. “This power is vested in the tral judge so as to avoid multiplicity of suits, unnecessary costs, delays, and to afford protection from oppression and abuse.” Kanoy v. Hinshaw, 273N.C 418, 42, 160 8.5.24 296 (1968) 19. “Whetheror not consolidation of ase for rl, where permissible, willbe oxered ini the discretion ofthe court” Phelps v. MeCotter, 252 N.C. 66, 66, 112 SE-2d 736 1960)."A court’ ruling on a Rule 42 motion will not be reversed on appesl absent a manifest abuse of Aiseretion.” Creseent Univ. City Venture, LLC». Trussway Mjp., 2018 NCBC LEXIS 74, at "12 (NC. Super. Ct. July 26, 2018) (quoting Markham v. Nationwide Mut. Fire Ins, Co, 425N.C. App. 448, 448, 481 S-E.2d 349 (1997). 20, Here, consolidation of Smathers I and Smathers 11 for discovery and tral is both appropriate and necessary. The two actions arise and are pending in the same venue, involve the same Plaintiffs (and same counsel), who are alleging that Defendants are jointly and severally liable for damages to Plaintiffs caused by their negligence occurring as part of the same ‘transactions and occurrences. 21, Judicial economy willbe realized by consolidation ofthese cases fo discovery and efficiencies ies have agreed and requested that Judge Levinson should be the presiding judge aver both eases. Concomitant ‘rial. Consolidation will also allow the parties to avoid unnecessary expenses an ‘that would be incurred in the absence of consolidation, As noted above, the pa Page 5 of &‘withing this Motion, Paints have submitted the parties join request o Judge Thornburg va letter that Judge Levinson be appointed to preside over Smathers (with Judge Levinson and all ‘counsel being copied on said eter) 22, Consolidation wll also foreclose the possibilty of inoonsistent vert ifnat also ‘he application of res judicata, 23. Consolidation of these cases for discovery and tral will not cause prejudice tothe ‘Smathers 1 Defendants. While discovery has already been initiated in Smathers , it has only Included depositions of Defendants Kurtz and Gilmer and written discovery. Plaintiffs have provided all discovery responses, document prodsetion, and depeition transcripts to the ‘Smathers If Defendants Importantly, th parties across bth cases are already jointly discussing further discovery, including the scheduling of the depositions of Paints and others, and have agreed that each Plait (and other deponent) will only sit for deposition once despite there being to cise, The partes also reached such agreement with respect to Defendant Gilmer before she was made available fr deposition. .%4. _Insum, consolidation of these matters would gretly promote efficiency and avoid ‘unnecessary costs or delay, eliminate repetitive discovery, such as depositions ofthe same fact witnesses, fnot also expert witnesses aswell as eliminate the possibilty of inconsistent findings andor verdicts 25. Accordingly, Paints respetflly move this Cour to consolidate these cases for discovery and tril, Plaintifs defer to the Cours discretion regarding adjustment of any Aiseovery-elated deadlines but wish the consolidated cases to goto tril on the scheduled tial date set by this Court for Smathers I, February 32,2024, ‘WHEREFORE, Plintisrespectlly pray the Court consolidate these eases for discovery and trial Page 6 of 8Respectflly submitted this the 1g day of Apri, 2023, ZAYTOUN & BALLEW, PLLC aA ‘Zaytoun, N. ee Bar No. 6942 ‘Matthew D. Ballew, N.C. State Bax No. 39515, Paul J. Puryear, Jr, OF Counsel, N.C. State Bar No. 41536 43130 Falthill rive, Suite 100 Raleigh, NC 27612 Telephone: (919) 832-6690 Frsinile: (619) 834-4753 ‘waytoun@zaytounleweom ‘mbollewi@zaytounlaw.com pipuryearzaytounlavecom Counsel for Plaintiffs, Page 7 0f 8(CERTIFICATE OF SERVICE 1, the undersigned, do hereby certify that a copy of the foregoing MOTION TO CONSOLIDATE CASES AND FOR ENTRY OF A NEW CONSOLIDATED DISCOVERY SCHEDULING ORDER was served upon counsel forall parties and/or unrepresented parties by depositing the foregoing in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service, addressed as follows to Defendants: Phillip. Jackson, sq James Wilde, Esq, David Hawisher, Esq. Roberts & Stevens, P-A. PO Box 7647 Asheville, NC 28802 BJackson@roberts-stevens.com ‘Wilde@roberts-stevens.com ‘ ‘Dilawisher@roberts-stevens.com Counsel for the Hospital Defendants ‘Tamura D. Coffey Coffey Law, PLLC 4398 East Kinderton Way Bermuda Run, NC 27006 coffewidcoffeylawpl Counsel for Defendants Gilmer and Laurel- OB By: Ube oK_ Robelt E Zaytoun ‘Matthew D. Ballew Paul J. Puryear, Jr, Of Counsel Attorneys jor Plaintiffs ‘This the 1gth day of April, 2023. Page 8 of 8