371 N.C. 818
N.C.2018Background
- Pamela Justus underwent neck surgeries by Dr. Michael Rosner in 2000–2001 and later developed a chin‑on‑chest kyphotic deformity; she saw numerous other providers thereafter and died in 2012 (death not attributed to the surgeries).
- In 2003 Pamela (and later her estate) sued Rosner and hospital defendants for multiple theories of medical malpractice, lack of informed consent, fraud, conspiracy, and related claims; trial began in 2014.
- The jury found Rosner negligent, awarded $512,162 in damages, but offset that amount by $512,161 for Pamela’s alleged failure to mitigate, resulting in a $1 judgment.
- Plaintiff moved under Rule 59 to alter or amend, arguing the mitigation finding was contrary to law and the greater weight of evidence because Pamela had no duty to seek follow‑up specifically from Rosner and she did seek other care; the trial court granted relief, set aside the mitigation finding, and entered judgment for $512,162 and awarded costs.
- The Court of Appeals vacated the amended judgment and ordered a new trial limited to damages; this Court affirmed in part, holding the trial court did not abuse discretion in setting aside the verdict but that the proper remedy was a new trial on damages (and upheld the costs award); discretionary review on contributory negligence was dismissed as improvidently allowed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of setting aside jury verdict under Rule 59(a)(7) (insufficiency of evidence) | Justus: jury's mitigation finding was against the greater weight of evidence and based on a legally incorrect premise that Pamela had to return specifically to Rosner; relief warranted. | Rosner: trial court abused discretion; jury credibility findings should stand. | Court: affirmed — trial court did not abuse discretion in granting new‑trial relief under Rule 59(a)(7) because experts created misleading impression and jury’s $1 award was against greater weight of evidence. |
| Scope of remedy — whether trial court could amend judgment vs. order new trial and whether new trial may be limited to damages | Justus: sought amended judgment or, alternatively, a new trial on damages. | Rosner: if relief warranted, it should be a full new trial (liability & damages); trial court improperly entered amended judgment. | Court: trial court lacked authority to amend jury verdict after jury trial; Court of Appeals correctly vacated amended judgment and properly ordered a new trial limited to damages. |
| Assessment of costs (expert and deposition fees) against Rosner | Justus: costs for depositions and expert testimony were allowable and properly awarded. | Rosner: some expert fees were for witnesses who testified only against hospital defendants; those fees should not be taxed against Rosner. | Court: affirmed award — the challenged experts also addressed issues concerning Rosner; trial court did not abuse discretion in taxing allowable categories of costs. |
| Contributory negligence instruction (whether trial court erred) | N/A (plaintiff opposed instruction) | Rosner: trial court should have instructed jury on contributory negligence based on evidence of plaintiff’s conduct. | Court: discretionary review of this issue was improvidently allowed and remains undisturbed from Court of Appeals; majority declined to revisit. |
Key Cases Cited
- In re Will of Buck, 350 N.C. 621 (2000) (abuse‑of‑discretion standard for Rule 59(a)(7) motions; verdict against greater weight of evidence)
- Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362 (1985) (appellate review of trial court discretion on new trial motions)
- Worthington v. Bynum, 305 N.C. 478 (1982) (deference to trial court on new‑trial decisions; trial judge’s institutional advantages)
- Miller v. Miller, 273 N.C. 228 (1968) (doctrine of mitigation/avoidable consequences requirement)
- Bethea v. Town of Kenly, 261 N.C. 730 (1964) (trial court may not increase or change jury’s monetary verdict after jury trial)
- Robertson v. Stanley, 285 N.C. 561 (1974) (appellate court may shape scope of new trial; partial new trials are discretionary)
- Weyerhaeuser Co. v. Godwin Bldg. Supply Co., 292 N.C. 557 (1977) (if theory of liability is uncertain and damages measures differ, full new trial may be required)
- Nationwide Mut. Ins. Co. v. Chantos, 298 N.C. 246 (1980) (remand when trial court misapprehends law on Rule 59 grounds)
- Table Rock Lumber Co. v. Branch, 158 N.C. 251 (1911) (partial new trial appropriate when error confined to separable issue)
- Bartholomew & Co. v. Parrish, 186 N.C. 81 (1923) (grossly inadequate damages may indicate compromise verdict requiring new trial on all issues)