New North Carolina law, question on facts pivotal to Mosley appeal

By Alan Wooten
The Center Square

Action by North Carolina’s General Assembly has changed the timing for medical malpractice, and enough evidence to ask a jury to resolve contested facts favor Prisha Mosley, her lawyer tells The Center Square.

North Carolina’s Court of Appeals received the 73-page appeal brief on Monday. Friend of the court briefs are due this coming Monday, and defendants will have the opportunity to file responses within 30 to 60 days. Plaintiffs will get final say, and a three-judge panel will either make a decision or opt for a hearing.

Josh Payne, of Birmingham from the Campbell, Miller, Payne firm headquartered in Dallas, told The Center Square on Wednesday lawmakers opened one door – medical malpractice – for appeal with last year’s change in a statute of limitations. For the other pivot point of the case – fraud and negligence – Superior Court Judge Robert C. Ervin didn’t write an opinion, leaving Payne to deliver on appeal plenty of facts as evidence that “a disputed question for a jury to resolve” would not be in doubt.

“The judge is not there to determine judgment,” Payne said of the August ruling. “He’s there to determine if we presented enough evidence that shows at least a disputed question for a jury to resolve – a disputed fact which calls for a jury trial.

“We go point by point by point and explain we have presented enough evidence. There’s plenty to pick through.”

Compensatory and punitive damages to the maximum extent allowable are sought in the prayer for relief. The complaint also requests treble damages and attorney’s fees, meaning the defendants pay three times the amount of actual damages sustained by the plaintiff.

In other words, the eight defendants could collectively be facing more than the $2 million awarded earlier this year in a similar health care lawsuit in New York’s Westchester County.

Mosley moved to North Carolina in third grade, at about age 7. Big Rapids, Mich., is now home for the 28-year-old and her son, he with the bassinet gifted by Mosley’s good friends Riley Gaines and Paula Scanlan.

As a teen, Mosley and her parents were part of the growing trend to transition from female to male. She started testosterone at 17, had surgery at 18, and like many in the five to 10 years later range, had regret.

“That’s how long it takes to see the catastrophic results,” Mosley told The Center Square in a November interview.

Payne doesn’t say Ervin was wrong on his first point. Prevent Sexual Exploitation/Women and Minors, known also as House Bill 805, defines male and female in part, codifying second-term Republican President Donald Trump’s executive order, and increased the statute of limitations to 10 years for those seeking justice for harm from gender transition.

“The General Assembly in North Carolina, they passed a law after the judge initially ruled in the case that her medical practice claim was untimely,” Payne said. “The General Assembly came in passing a law extending time to sue and made it retroactive. By its terms, it applies. The judge declined to follow that law. He said he had a discretion not to follow it because the case had been going on for some time.

“We are arguing in the appeal brief, no, he doesn’t have discretion to ignore the law. The Legislature makes the law and the courts apply the law. That’s our primary argument.”

The veto override of first-term Democratic Gov. Josh Stein was on July 29. The statute of limitations section of the law became effective immediately.

Irvin, in his Aug. 25 ruling, wrote in part, “North Carolina’s appellate courts have affirmed a trial court’s exercise of its discretion in cases where proposed amendments would have injected a new legal theory into a case after a vast amount of discovery had been conducted or when the amendment would significantly alter the legal issues presented in the case.”

The second area concerns the defendants’ claims of fraud and misleading conduct.

“We presented sufficient evidence with which a jury could find the defendants liable in the case,” Payne said. “The judge disagreed, and dismissed those claims, but he didn’t write an opinion explaining why. We don’t have anything to go off.

“We have very specific pieces of evidence we point to, testimony from Prisha, from defendants themselves, and it’s also parts of the medical records in the case.”

Mosley filed the lawsuit in Gaston County in July 2023. It states that at age 17, testosterone injections were started, and a double mastectomy was performed. Among the eight defendants are a plastic surgeon, two licensed counselors, and a physician.

Among the points, Payne said the mastectomy was called a breast reduction in the paperwork signed by a counselor – a point he says is misleading. On another point, Brie Klein-Fowler, according to her deposition, admitted to being aware of the concept of detransitioning including mention of a specific study.

“But she intentionally withheld that information from Prisha before the surgery,” Payne said. “We believe that’s fraudulent misconduct. It’s evidence that a reasonable jury could conclude that’s fraudulent conduct.”

The list goes on.

Irvin, in his summary judgment dismissal with prejudice, wrote in part, “The court concludes with respect to all of the motions listed above that there are no genuine issues of material fact in this case and that all of the defendants are entitled to judgment as a matter of law.”

Monday’s appeal conclusion in the case known as Mosley v. Emerson says, “The judgment below should be reversed in its entirety. Every claim was timely. Every claim dismissed at summary judgment was supported by law and evidence. And every claim dismissed under Rule 12(b)(6) was properly pleaded. And the General Assembly’s commands in House Bill 805 must be obeyed.”

Rule 12(b)(6) is civil procedure allowing dismissal of a lawsuit early in the process, considered a test of legal sufficiency assuming all accusations are true.

Defendants are Dr. Eric Emerson; Piedmont Plastic Surgery and Dermatology; Klein-Fowler; Family Solutions; Shana Gordon; Tree of Life Counseling; Dr. Martha Fairbanks Perry; and Moses Cone Memorial Hospital, doing business as Cone Health.

Plaintiff listing on the litigation is Charlie Mosley, also known as Prisha Mosley, also known as Abigail Mosley.

In addition to her own relief, Mosley’s hope is the potential delivery of a second landmark win nationwide for detransitioner lawsuits. The first has already come in New York in the $2 million Fox Varian verdict.

In January, the 22-year-old won a lawsuit against medical providers that performed a double mastectomy when Varian was 16 years old in New York’s Westchester County. A jury said the standard of care was violated when the medical providers did not get informed consent and skipped psychological evaluations.

Varian’s mother, in testimony, said she gave consent based on being told her daughter would commit suicide without it.

“The system that should have been designed to protect me instead threw me to the wolves,” Mosley said in a statement released Monday by Independent Women. “My case means more to me now than ever because I’m fighting for justice not only for myself, but for thousands of other detransitioners who did not get what we were entitled to: informed consent and dignity.”