              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-1196

                                 Filed: 20 June 2017

Henderson County, No. 03 CVS 977

BRUCE JUSTUS as Administrator of the Estate of Pamela Jane Justus, Plaintiff,

             v.

MICHAEL J. ROSNER, M.D.; MICHAEL J. ROSNER, M.D., P.A.; FLETCHER
HOSTPITAL, INC., d/b/a PARK RIDGE HOSPITAL; ADVENTIST HEALTH
SYSTEM; and ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE
CORPORATION, Defendants.


      Appeal by defendants Michael J. Rosner, M.D., and Michael J. Rosner, M.D.,

P.A. from orders and amended judgment entered 3 March 2015 by Judge Zoro J.

Guice, Jr., in Henderson County Superior Court. Heard in the Court of Appeals 7

June 2016.


      The Law Offices of Wade Byrd, P.A., by Wade E. Byrd, for plaintiff-appellee.

      Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson and K. Edward
      Greene, for defendant-appellants.


      BRYANT, Judge.


      Where the trial court was within its discretion to set aside the jury verdict on

the ground it was grossly inadequate, we affirm in part the trial court order granting

plaintiff relief; however, where the trial court acted outside its authority in altering

the verdict and thereafter amending the judgment, we vacate the amended judgment

and remand for a new trial on damages. Where defendant was not entitled to an

instruction on contributory negligence, we affirm the trial court’s directed verdict as
                                           JUSTUS V. ROSNER

                                           Opinion of the Court



to that defense. Where the trial court acted within its statutory and discretionary

authority in awarding costs to plaintiff, we affirm.

       On 21 October 2014, the Honorable Zoro Guice, Jr., Judge presiding in

Henderson County Superior Court, entered judgment in accordance with jury

verdicts finding defendant Michael J. Rosner, M.D. and Michael J. Rosner, M.D., P.A.,

negligent and liable to plaintiff Bruce Justus as Administrator of the Estate of

Pamela Jane Justus.1,2             The jury found that plaintiff was entitled to recover

$512,162.00 for personal injury, but that that amount should be reduced by

$512,161.00 (resulting in a nominal $1.00 award) “because of Pamela Justus’s

unreasonable failure . . . to avoid or minimize her damages.” Within ten days,

plaintiff filed a motion to alter or amend the judgment pursuant to N.C. R. Civ. P.

59(a)(5), (7) and Rule 59(e). On 3 March 2015, Judge Guice entered an order granting

plaintiff’s motion to amend the 21 October 2014 judgment and also a corresponding

amended judgment which struck the jury’s verdict on mitigation of damages and




       1   Fourteen issues were submitted to the jury addressing the liability of Michael J. Rosner,
M.D.; Michael J. Rosner, M.D., P.A.; Fletcher Hospital, Inc. d/b/a Park Ridge Hospital; Adventist
Health System; and Adventist health System Sunbelt Healthcare Corporation. All issues related to
liability of the hospital and healthcare system and corporation for injury, wrongful death, fraud, or
conspiracy as to Pamela Justus were answered in the negative. The jury also determined that Dr.
Rosner was not liable for wrongful death as to Pamela Justus.

       2   Hereinafter, the opinion will refer to Bruce Justus as “plaintiff.”



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awarded plaintiff $512,162.00. Dr. Michael J. Rosner and Michael J. Rosner, M.D.,

P.A., appeal this order, the amended judgment, and an order awarding costs.3

                  __________________________________________________

       As the 3 March 2015 order and amended judgment from which defendant

appeals contain relevant facts (and procedural history), we set them out herein in

relevant part:

                                    FINDINGS OF FACT

               1. On June 12, 2003, Plaintiffs [sic] filed [this] action
               alleging medical malpractice by Defendant Michael J.
               Rosner, M.D.

               2. The charges of medical malpractice against Dr. Rosner
               ar[o]se from his performance of two neurosurgical
               procedures on decedent Pamela Jane Justus.

               ....

               4. The following evidence was presented at trial and was
               uncontroverted:

                       a. On June 27, 2000, Dr. Rosner performed a
                       laminectomy on Pamela Justus.[4]

                       b. On February 6, 2001, after Mrs. Justus reported
                       increased pain, Dr. Rosner performed a second


       3 On 2 December 2015, this Court granted a consent motion to dismiss Fletcher Hospital, Inc.
d/b/a Park Ridge Hospital, Adventist Health System, and Adventist Health System Sunbelt
Healthcare Corporation from the appeal of this case. The remaining defendants, Dr. Michael J. Rosner
and Michael J. Rosner, M.D., P.A., are hereinafter referred to as “defendant.”

       4 At trial, a laminectomy was described as a “procedure [to] remove a portion of the vertebral
bone to make more space in the spinal canal for the spinal cord.”


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surgery (a laminectomy, craniectomy/craniotomy,
tonsillar resection, and placement of a bovine
pericardium).

c. Mrs. Justus last saw Dr. Rosner on March 21,
2001.

d. On May 29, 2001, in response to her report of
severe pain, nausea and other post-operative
symptoms, Dr. Rosner’s office advised Mrs. Justus to
return to see Dr. Rosner for a repeat MRI and re-
evaluation, but she declined, stating that she was
afraid to come back to Dr. Rosner again, and also
that she lacked insurance because her husband had
been laid off from work.

e. Thereafter, Mrs. Justus repeatedly consulted with
physicians in an effort to obtain treatment for her
continuing neck, head and back pain. For example,
she saw Dr. Charles Buzzanell in July and August
2001; a neurologist at Wake Forest University
Baptist Medical Center in August and September
2001; Dr. Lesco Rogers on September 25, 2001; Dr.
Shashidhar Kori at Duke University Medical Center
on September 25, 2001, and neurosurgeon Dr. Regis
Haid from November 2003 through January 2004.

f. In February 2004, Mrs. Justus visited Carolina
Neurosurgery and Spine Associates in Charlotte,
North Carolina, for corrective surgery; and, in April
2004, she had surgery done to correct her inability
to support her head.

g. On numerous occasions from 2004 through 2011,
Mrs. Justus sought and received further medical
care related to her head and neck.

h. In late 2011, Mrs. Justus had another corrective
back and neck surgery performed by Dr. Coric of
Carolina Neurosurgery and Spine Associates.


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      i. Mrs. Justus died on September 20, 2012.

5. Dr. Rosner contended at trial that Mrs. Justus
unreasonably failed to mitigate her damages.

6. To support the foregoing defense, Dr. Rosner called
four neurosurgical experts (Drs. Michael Seiff, Donald
Richardson, Peter Jannetta, and Konstantin Slavin) to
testify on his behalf.

7. These neurosurgical experts testified that Mrs. Justus’
condition could have been ameliorated had she promptly
sought follow-up care from Dr. Rosner.

8. Based upon the Court’s opportunity to observe the
evidence as it was presented and the attendant
circumstances, together with the demeanor of Dr. Rosner’s
neurosurgical experts and considering all of their
testimony in context, this Court finds that the overall
impression created by these witnesses (and thus
communicated to the jury) is that Mrs. Justus had an
obligation to return specifically to Dr. Rosner; and that, by
failing to do so, she allowed her condition to worsen.

9. That Dr. Rosner elicited this testimony from four
different experts, moreover, intensified its cumulative
impact upon the jury.

10. There was no evidence presented that [Mrs.] Justus
unreasonably delayed trying to have her problems
diagnosed and corrected.

11. On the contrary, her attempts to mitigate her damages
were reasonable and all that could be expected.

12. Given the uncontested evidence that [Mrs.] Justus
promptly and persistently made diligent efforts to obtain
treatment from other physicians after she terminated her
relationship with Dr. Rosner, no reasonable person could


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conclude that she failed to exercise reasonable care to
mitigate her damages.

13. Nevertheless, Dr. Rosner’s mitigation defense was
submitted as Issue #12 to the jury.

14. On September 24, 2014, the jury returned a verdict on
[sic] favor of Plaintiffs against Dr. Rosner.

15. The jury found that Mrs. Justus sustained damages in
the amount of Five Hundred Twelve Thousand One
Hundred Sixty-[Two] Dollars ($512,16[2].00).

16. The foregoing sum reflected only Mrs. Justus’ medical
bills; it included no damages for pain and suffering.

17. Based upon its finding in Issue #12 that Mrs. Justus
had unreasonably failed to mitigate her damages, the jury
reduced the foregoing damage award to One Dollar ($1.00).

18. Given the uncontroverted evidence that Mrs. Justus
experienced severe pain and suffering (e.g., nausea,
tremors, and imbalance) as a result of the procedures
performed by Dr. Rosner, and that, even had she allowed
Dr. Rosner to continue to treat her, she would have
endured at least some of these symptoms, the jury’s finding
of no damages for pain and suffering is inadequate.

19. In addition, given the absence of evidence that Mrs.
Justus unreasonably failed to mitigate her damages, the
damage award as reduced by the jury’s finding on Issue #12
is inadequate for that reason as well.

20. Furthermore, the amount of the jury’s mitigation
finding—i.e., that Mrs. Justus’ condition was almost
entirely her own fault (except for $1.00)—vastly exceeds,
and is grossly disproportionate to, the extent to which,
according to Dr. Rosner’s neurosurgical experts, her
condition could have been ameliorated had she timely
sought follow-up care.


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....

                CONCLUSIONS OF LAW

1. Patients have no legal obligation to seek medical
treatment from any particular health care provider.

2. Mrs. Justus therefore had no duty to return to Dr.
Rosner, rather than to other health care providers.

3. The testimony by Dr. Rosner’s neurosurgical experts
suggesting that Mrs. Justus had a duty to return
specifically to Dr. Rosner was inaccurate and misleading.

4. The misleading effect of the foregoing testimony was
compounded by its repetition from four different expert
witnesses.

5. Dr. Rosner presented no legally competent evidence
sufficient to support a finding that Mrs. Justus
unreasonably failed to mitigate her damages.

6. This Court committed prejudicial error in submitting
Issue #12 [(mitigation of damages defense)] to the jury.

7. The jury’s    $1.00    damage      award   is   manifestly
inadequate.

8. The jury appears to have made its initial damage
finding ($512,16[2].00) under the influence of passion or
prejudice, for the finding entirely omits any sum for pain
and suffering despite the uncontroverted evidence that
Mrs. Justus experienced severe pain and suffering.

9. The jury also appears to have reduced its damage
finding ($512,161.00) under the influence of passion or
prejudice; specifically, the cumulative impact of misleading
testimony from multiple experts.



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                                  Opinion of the Court



              10. Even aside from the lack of evidence to support any
              mitigation finding at all, the influence of passion or
              prejudice is further manifested in the grossly excessive
              amount of the jury’s mitigation finding.

                    Based on the foregoing Findings of Fact and
              Conclusions of Law, it is therefore ORDERED,
              ADJUDGED AND DECREED as follows:

              1. Plaintiffs’ Motion to Alter or Amend Judgment is hereby
              GRANTED.

              2. The judgment entered on October 21, 2014 is hereby
              AMENDED by changing the amount of damages from One
              Dollar ($1.00) to Five Hundred Twelve Thousand One
              Hundred Sixty-Two Dollars ($512,162.00).

      Following the detailed order granting plaintiff’s motion to amend, the trial

court entered an amended judgment. The amended judgment reads, in relevant part,

as follows:

              Pursuant to the Court’s “Order Granting Plaintiff’s Motion
              To Alter or Amend Judgment”, the Judgment entered on
              October 21, 2014 is hereby amended as follows: . . . IT IS
              HEREBY ORDERED, ADJUDGED and DECREED,
              that the Plaintiff, Billy Bruce Justus, as Administrator of
              the Estate of Pamela Jane Justus, shall have and recover
              from the Defendants, Michael J. Rosner, MD and Michael
              J. Rosner, MD, PAs [sic] the sum of Five Hundred
              Twelve      Thousand       One     Hundred     Sixty-Two
              [$512,162.00] Dollars with interest at the legal rate of
              eight (.08) percent per annum from the date of the
              filing of the complaint, June 12, 2003 until paid.

(Emphasis added).
             __________________________________________________




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                                   Opinion of the Court



      On appeal, defendant argues the trial court erred by (I) setting aside a valid

jury verdict on the issue of Pamela Justus’s failure to mitigate damages.

Alternatively, he argues the court erred by (II) entering an amended judgment

instead of granting a new trial on all issues, including (III) allowing a defense of

contributory negligence. Defendant further argues (IV) the trial court’s award of

costs must be reversed.

                                            I

      Defendant first contends plaintiff’s motion to amend the judgment was an

invalid motion and, thus, the trial court erred in considering it. Defendant further

contends the trial court compounded the error by setting aside the damages verdict

and concluding as a matter of law that the trial court itself had committed prejudicial

error by submitting Issue #12—mitigation of damages—to the jury.

      “Motions to amend judgments pursuant to N.C.G.S. § 1A-1, Rule 59 are

addressed to the sound discretion of the trial court, and will not be disturbed on

appeal absent an abuse of that discretion.” Trantham v. Michael L. Martin, Inc., 228

N.C. App. 118, 127, 745 S.E.2d 327, 335 (2013) (citation omitted).

             [W]e note that the trial judges of this state have
             traditionally exercised their discretionary power to grant a
             new trial in civil cases quite sparingly in proper deference
             to the finality and sanctity of the jury’s findings. We believe
             that our appellate courts should place great faith and
             confidence in the ability of our trial judges to make the
             right decision, fairly and without partiality, regarding the
             necessity for a new trial. Due to their active participation


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               in the trial, their first-hand acquaintance with the evidence
               presented, their observances of the parties, the witnesses,
               the jurors and the attorneys involved, and their knowledge
               of various other attendant circumstances, presiding judges
               have the superior advantage in best determining what
               justice requires in a certain case. Because of this, we find
               much wisdom in the remark made many years ago by
               Justice Livingston of the United States Supreme Court
               that “there would be more danger of injury in revising
               matters of this kind than what might result now and then
               from an arbitrary or improper exercise of this discretion.”
               Insurance Co. v. Hodgson, 10 U.S. (6 Cranch) 206, 218
               (1810). Consequently, an appellate court should not disturb
               a discretionary Rule 59 order unless it is reasonably
               convinced by the cold record that the trial judge’s ruling
               probably amounted to a substantial miscarriage of justice.

Worthington v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599, 605 (1982). Our Supreme

Court recognized a basis for such discretion in that

               [t]he judge is not a mere moderator, but is an integral part
               of the trial, and when he perceives that justice has not been
               done[,] it is his duty to set aside the verdict. His discretion
               to do so is not limited to cases in which there has been a
               miscarriage of justice by reason of the verdict having been
               against the weight of the evidence (in which, of course, he
               will be reluctant to set his opinion against that of the
               twelve), but he may perceive that there has been prejudice
               in the community which has affected the jurors, possibly
               unknown to themselves, but perceptible to the judge—who
               is usually a stranger— . . . but which has brought about a
               result which the judge sees is contrary to justice.

Id. at 483, 290 S.E.2d at 603 (citing Bird v. Bradburn, 131 N.C. 488, 489, 42 S.E. 936,

937 (1902)).

      Pursuant to North Carolina General Statutes, section 1A-1, Rule 59,



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             [a] new trial may be granted to all or any of the parties and
             on all or part of the issues for any of the following causes
             or grounds:

             ....

             (5) Manifest disregard by the jury of the instructions of the
             court;

             (6) Excessive or inadequate damages appearing to have
             been given under the influence of passion or prejudice;

             (7) Insufficiency of the evidence to justify the verdict or
             that the verdict is contrary to law;

             (8) Error in law occurring at the trial and objected to by the
             party making the motion, or

             (9) Any other reason heretofore recognized as grounds for
             new trial.

N.C. Gen. Stat. § 1A-1, Rule 59(a) (2015). A Rule 59(e) “motion to alter or amend must

be based on grounds listed in Rule 59(a).” Smith v Johnson, 125 N.C. App. 603, 606,

481 S.E.2d 415, 417 (1997) (citation omitted).

                              Mitigation of Damages

      Defendant challenges the trial court’s authority to amend the 21 October 2014

judgment pursuant to Rule 59(a)(7) (“Insufficiency of the evidence to justify the

verdict or that the verdict is contrary to law”). Defendant contends the trial court

erred in setting aside the verdict, where the mitigation of damages issue was

supported by the evidence presented at trial and properly submitted to the jury.

Further, defendant argues that where evidence on an issue is admitted before the

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jury, no challenge to the jury instruction on the issue is made, and the jury verdict is

not contrary to law, a trial court is without authority to amend the judgment. We

disagree, as Rule 59(a)(7) allows for amendment of the judgment or a new trial based

on “[i]nsufficiency of the evidence to justify the verdict or that the verdict is contrary

to law.” Id. (emphasis added).

                    Rule 59(a)(7) authorizes the trial court to grant a
             new trial based on the “insufficiency of the evidence to
             justify the verdict.” N.C.G.S. § 1A-1, Rule 59(a)(7). We have
             previously indicated that, in this context, the term
             “insufficiency of the evidence” means that the verdict “was
             against the greater weight of the evidence.” Nationwide
             Mut. Ins. Co. v. Chantos, 298 N.C. 246, 252, 258 S.E.2d 334,
             338 (1979). The trial court has discretionary authority to
             appraise the evidence and to “ ‘order a new trial whenever
             in his opinion the verdict is contrary to the greater weight
             of the credible testimony.’ ” Britt v. Allen, 291 N.C. 630,
             634, 231 S.E.2d 607, 611 (1977) (quoting Roberts v. Hill,
             240 N.C. 373, 380, 82 S.E.2d 373, 380 (1954)). Like any
             other ruling left to the discretion of a trial court, the trial
             court’s appraisal of the evidence and its ruling on whether
             a new trial is warranted due to the insufficiency of evidence
             is not to be reviewed on appeal as presenting a question of
             law. Id. at 635, 231 S.E.2d at 611. As we stated in
             Worthington:

                    It has been long settled in our jurisdiction
                    that an appellate court’s review of a trial
                    judge’s discretionary ruling either granting or
                    denying a motion to set aside a verdict and
                    order a new trial is strictly limited to the
                    determination of whether the record
                    affirmatively demonstrates an abuse of
                    discretion by the [trial] judge.

             305 N.C. at 482, 290 S.E.2d at 602 (emphasis added). [Our


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                Supreme] Court has long recognized this standard for
                appellate review of trial court orders granting new trials.
                See, e.g., Dixon v. Young, 255 N.C. 578, 122 S.E.2d 202
                (1961); Caulder v. Gresham, 224 N.C. 402, 30 S.E.2d 312
                (1944); Bird v. Bradburn, 131 N.C. 488, 42 S.E. 936 (1902);
                Brink v. Black, 74 N.C. 329 (1876). . . . “ ‘[A]n appellate
                court should not disturb a discretionary Rule 59 order
                unless it is reasonably convinced by the cold record that the
                trial judge’s ruling probably amounted to a substantial
                miscarriage of justice.’ ” Anderson v. Hollifield, 345 N.C.
                480, 483, 480 S.E.2d 661, 663 (1997) (quoting Campbell v.
                Pitt County Mem'l Hosp., Inc., 321 N.C. 260, 265, 362
                S.E.2d 273, 275 (1987)) (emphasis added).

                       The trial court’s discretion to grant a new trial arises
                from the inherent power of the court to prevent injustice.
                Britt, 291 N.C. at 634, 231 S.E.2d at 611. . . .

                ....

                . . . It is impossible to place precise boundaries on the trial
                court’s exercise of its discretion to grant a new trial.
                However, we emphasize that this power must be used with
                great care and exceeding reluctance. This is so because the
                exercise of this discretion sets aside a jury verdict and,
                therefore, will always have some tendency to diminish the
                fundamental right to trial by jury in civil cases which is
                guaranteed by our Constitution.

In re Buck, 350 N.C. 621, 624–26, 516 S.E.2d 858, 860–61 (1999).

        Thus, the inherent power of the trial court to try and prevent injustice by

setting aside a jury verdict is fully supported in our jurisprudence.5 For the foregoing


        5To be clear, the trial court’s order which substantially changed or altered the jury verdict by
replacing it with the trial court’s own verdict does constitute error. Cf. Baker v. Tucker, 239 N.C. App.
273, 278, 768 S.E.2d 874, 877–78 (2015) (“[Rule 59(a)] specifically provides that ‘[o]n a motion for a
new trial in an action tried without a jury, the court may open the judgment if one has been entered .



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reasons, we review defendant’s challenges to the trial court’s actions for abuse of

discretion. See id.

       First, in reviewing defendant’s challenge to the portion of the trial court’s order

regarding mitigation of damages, we note defendant’s challenge to Finding of Fact 9

(finding “Dr Rosner elicited [misleading] testimony from four different experts

[which] intensified its cumulative impact upon the jury”) as “not accurate” and to

Finding of Fact 12 (finding that “Pamela Justus made prompt and diligent efforts to

obtain treatment for her injuries” and “no reasonable person could conclude that

Pamela Justus failed to exercise reasonable care to mitigate her damages”) as “not

supported by the evidence.” We contrast the two challenged findings with the trial

court’s Finding of Fact 8, in which the court stated the testimony and demeanor of

the expert witnesses created an impression communicated to the jury that by

Pamela’s failure to return specifically to Dr. Rosner, she allowed her condition to

worsen. Indeed, Finding of Fact 8 and other unchallenged findings support the trial

court’s conclusions that because Pamela Justus had no duty to return specifically to

Dr. Rosner for medical treatment, cumulative expert testimony that said otherwise

was so misleading the jury should never have been instructed on a “mitigation of




. . and direct the entry of a new judgment.’ ” (quoting N.C.R. Civ. P. 59(a)); see also Handex of the
Carolinas, Inc. v. Cnty. of Haywood, 168 N.C. App. 1, 22, 607 S.E.2d 25, 38 (2005) (noting that, in the
event of a clerical error on a jury verdict sheet, where the trial court sets aside or amends a verdict
pursuant to Rule 59 after the jury has been discharged, there must be some evidence that all jurors
are in agreement that the verdict sheet did not represent their intentions); see also infra Issue II.

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damages” defense.     Thus, the jury verdict—that “Plaintiff’s actual damages be

reduced [by $512,161.00] because of Pamela Justus’s unreasonable failure . . . to avoid

or minimize her damages”—was set aside by the trial court upon its determination

that, given misleading evidence adduced at trial, it was error to submit the mitigation

of damages instruction to the jury.

      On this point, defendant contends the legal question before this Court is

“[whether] a failure to follow-up with treatment or otherwise comply with a

physician[’s] instructions constitute failure to mitigate damages.” Here, defendant

proposes an inquiry that implicates factual evidence adduced at trial, jury

instructions as to mitigation of damages, and the trial court’s reasoning for setting

aside the verdict. Defendant’s contention—that a failure to follow up with treatment

or otherwise comply with a physician’s instructions may constitute failure to

mitigate—is much broader than the narrower issue the trial court reviewed, which

was whether the jury considered only the expert testimony that failure to follow up

with Dr. Rosner (as opposed to seeking treatment from other medical providers)

constituted unreasonable failure to mitigate damages.

      On failure to mitigate damages, the trial court instructed the jury as follows:

             A person injured by the negligent conduct of another is
             nonetheless under a duty to . . . seek treatment to get well
             and to avoid or minimize the harmful consequences of her
             injury. . . . If you find that a healthcare provider advised
             [Pamela] to follow up her care and treatment, you would
             not necessarily conclude that Pamela Justus acted


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             unreasonably in declining such advice. In determining
             whether [her] conduct was reasonable you must consider
             all the circumstances as they appeared to [her] at the time
             she chose not to follow the . . . advice. These may include
             the financial condition of [Pamela], the degree of risk
             involved, the amount of pain involved, the chances for
             success . . . .

Thus, it appears the trial court instructed the jury on the narrow question of whether

failure to follow up with Dr. Rosner constituted an unreasonable failure to mitigate

damages.

      At trial, there was significant testimony regarding extensive medical

treatment, including additional procedures performed on Mrs. Justus over the ten

years following the two surgeries performed by Dr. Rosner. As previously indicated,

there was also significant testimony from experts, who indicated Ms. Justus’s failure

to follow-up with Dr. Rosner contributed to her severe kyphosis. For example, Dr.

Seiff gave the following testimony:

             A. . . . When you develop a post-laminectomy kyphotic
             deformity, you do so gradually. You don’t wake up one
             morning and all of a sudden your chin is on your chest. It’s
             a gradual response to – it’s a complication of a multilevel
             laminectomy, but that’s one of the risks of the surgery.
             They don’t happen often, but they happen. . . . [I]t doesn’t
             happen overnight.
                    So the fact that hers was chin on chest was because
             it went unaddressed for about three years before the time
             she presented to [Dr.] Coric. If she had been following up,
             as she should have, it would have been detected that she
             was developing a post-laminectomy kyphotic deformity and
             she would have had the appropriate surgery much sooner
             than when she presented with a chin-on-chest deformity.


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       We acknowledge defendant’s observation that evidence of record exists that

Pamela’s actions and health conditions—i.e., obesity, diabetes, smoking—may

constitute evidence sufficient to support an instruction on failure to mitigate

damages, but we take no position on whether those actions and health conditions in

fact constitute sufficient evidence to support a reduction in damages. However,

defendant will have an opportunity to present and argue these matters in a

mitigation defense in a new damages trial. Defendant can also address the issue it

presented as a legal one (although we reject it as such in this appeal): whether failure

to follow up with treatment or otherwise comply with a physician’s—or specifically

Dr. Rosner’s—instructions could constitute unreasonable failure to mitigate

damages.    We do hold that the trial court’s actions, in determining evidence of

mitigation of damages was insufficient to justify the verdict, did not amount to an

abuse of discretion. As “the test is one of reasonableness, and depends upon the

circumstances of the particular case,” Radford v. Norris, 63 N.C. App. 501, 503, 305

S.E.2d 64, 65 (1983), the trial court, having observed the evidence presented, the

parties, the witnesses, the jurors, and the attorneys, is in the better position to

“determin[e] what justice requires . . . .” Worthington, 305 N.C. at 487, 290 S.E.2d at

605.

                                Pain and Suffering




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      Plaintiff’s motion to alter or amend the judgment and the trial court’s order

granting his motion were also directed against the jury’s finding that Pamela Justus

suffered damages totaling $512,162.00, and that total did not include compensation

for pain and suffering.

      The question presented as to this issue is whether the court was within its

discretion to determine that the initial damages award of $512,162.00 was given

under the influence of passion or prejudice as it omits any sum for pain and suffering.

             The law is well settled in this jurisdiction that in cases of
             personal injuries resulting from [a] defendant’s negligence,
             the plaintiff is entitled to recover the present worth of all
             damages naturally and proximately resulting from [the]
             defendant’s tort. The plaintiff, inter alia, is to have a
             reasonable satisfaction for actual suffering, physical and
             mental, which are the immediate and necessary
             consequences of the injury. . . . Generally, mental pain and
             suffering in contemplation of a permanent mutilation or
             disfigurement of the person may be considered as an
             element of damages, and it would seem that the weight of
             authority is to that effect.

Robertson v. Stanley, 285 N.C. 561, 565, 206 S.E.2d 190, 193 (1974) (citation omitted).

“[I]n order to find an abuse of discretion in this context, the evidence as to damages

must be clear, convincing and uncontradicted.” Hughes v. Rivera-Ortiz, 187 N.C. App.

214, 219, 653 S.E.2d 165, 169 (2007) (citation omitted).

      The jury was given the following instruction with regard to what plaintiff was

entitled to recover for damages:

             The plaintiff may also be entitled to recover actual


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                                    Opinion of the Court



               damages. . . .

               Actual damages are the fair compensation to be awarded
               to a person for any past injury proximately caused by the
               negligence of another. In determining the amount, if any,
               you award the plaintiff, you will consider the evidence you
               have heard as to each of the following types of damages:

               Medical expenses, pain and suffering, scars or
               disfigurement, partial loss of use of part of the body, and
               permanent injury until the time of death.

               ....

               Damages for personal injury also include fair compensation
               for the actual past physical pain and mental suffering
               experienced by Pamela Justus as a proximate result of the
               negligence of the defendant.

(Emphasis added).

      Based on its post-verdict findings, the trial court drew the following

conclusions:

               9. The jury also appears to have reduced its damage finding
               ($512,161.00) under the influence of passion or prejudice;
               specifically, the cumulative impact of misleading testimony
               from multiple experts.

               10. . . . [T]he influence of passion or prejudice is further
               manifested in the grossly excessive amount of the jury’s
               mitigation finding.

      On this record, we hold that the trial court acted within its discretion to

determine that the jury’s initial damages award for $512,162.00 did not include

compensation for pain and suffering, and that its reduction of the damages award



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                                     Opinion of the Court



from $512,162.00 to $1.00 for failure to mitigate damages was excessive.                   See

Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 663 (1997) (“A

‘discretionary order pursuant to [N.C.]G.S. 1A-1, Rule 59 for or against a new trial

upon any ground may be reversed on appeal only in those exceptional cases where an

abuse of discretion is clearly shown.’ ” (alterations in original) (quoting Worthington,

305 N.C. at 484, 290 S.E.2d at 603)).

       For completeness of addressing each of defendant’s arguments, we agree that

Rule 59(a)(8), which requires a moving party to object at trial to the alleged error of

law, cannot serve as a basis to grant relief to plaintiff. On the other hand, Rule

59(a)(6) provides that “inadequate damages appearing to have been given under the

influence of passion or prejudice” is grounds for a new trial. See N.C.G.S. § 1A-1, Rule

59(a)(6). Even though the trial court did not make a specific Rule 59(a)(6) “finding,”

its conclusion that the jury’s verdict #11 of damages in the amount of $512,162.00

(which included no sum given for pain and suffering) in conjunction with verdict #12

reducing that award by $512,161.00 for failure to mitigate damages, must have been

decided under the influence of passion or prejudice, and it appears to be a Rule

59(a)(6) finding. Having decided that the trial court acted within its discretion to set

aside the jury verdict based on Rule 59(a)(6) and (7), we need not further address

other subsections of the rule.6


       6Though enumerated in plaintiff’s motion for a new trial or, alternatively, amending the
judgment, the trial court made no findings of fact pertinent to subsection (a)(5) of Rule 59.

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                                     Opinion of the Court



                                             II

        Defendant argues in the alternative that the trial court erred in entering a

post-verdict amended judgment instead of granting a new trial. We agree. However,

contrary to defendant’s argument, we reverse and remand for a new trial on damages

only.

        Rule 59(a) provides that where “[e]xcessive or inadequate damages appear[] to

have been given under the influence of passion or prejudice; [or] . . . [the evidence is

i]nsufficien[t] . . . to justify the verdict,” “[a] new trial may be granted to all or any of

the parties and on all or part of the issues.” N.C.G.S. § 1A-1, Rule 59(a)(6) and (7);

see also Cicogna v. Holder, 345 N.C. 488, 490, 480 S.E.2d 636, 637 (1997) (stating that

“it is within the discretion of this Court whether to grant a new trial on all issues[,

and that] [i]f the issue which was erroneously submitted did not affect the entire

verdict, there should not be a new trial on all issues”; ordering a new trial on the issue

of damages only); Robertson, 285 N.C. at 568–69, 206 S.E.2d at 195 (“As a condition

to the granting of a partial new trial, it should appear that the issue to be tried is

distinct and separable from the other issues, and that the new trial can be had

without danger of complications with other matters.” (citation omitted)); Snead v.

Holloman, 101 N.C. App. 462, 400 S.E.2d 91 (1991) (granting a new trial on the issue

of damages where the trial court erred in failing to submit to the jury the issue of

mitigation of damages).



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                                   Opinion of the Court



      In its order, the trial court granted plaintiff’s motion for relief from the jury

verdict, but did not address plaintiff’s request for a new trial. Instead, the court

ordered that its earlier judgment (21 October 2014) entered in accordance with the

jury verdicts be amended. The trial court’s amended judgment, however, changed

the jury’s damages verdict from $1.00 to $512,162.00, and thereby improperly ordered

relief beyond the scope authorized by Rule 59(a). A trial judge has the authority and

discretion to set aside a jury verdict and grant a new trial—in whole or in part—

under Rule 59; however, that rule does not allow a trial judge presiding over a jury

trial to substitute its opinion for the verdict and change the amount of damages to be

recovered.

      We agree with defendant that “[e]ven if the trial court had grounds to set aside

the jury verdict, the trial court nevertheless erred in entering the Amended Judgment

striking the jury’s answer to the singular issue of mitigation of damages” and

imposing a new verdict. See Bethea v. Kenly, 261 N.C. 730, 732, 136 S.E.2d 38, 40

(1964) (per curiam) (“It is a cardinal rule that the judgment must follow the verdict,

and if the jury have given a specified sum as damages, the court cannot increase or

diminish the amount, except to add interest, where it is allowed by law and has not

been included in the findings of the jury.” (citations omitted)); see also Circuits Co. v.

Commc'ns, Inc., 26 N.C. App. 536, 540, 216 S.E.2d 919, 922 (1975) (“[W]e do not agree

that the court acted properly or with authority when it entered an order, ‘[i]n its



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                                   Opinion of the Court



discretion, as an alternative to ordering a new trial’ [pursuant to Rule 59],

eliminating the ‘bill back’ item of $8,168.51 and reducing the verdict to $12,626.30 . .

. . We find nothing in the new Rules of Civil Procedure which would grant to the court

the authority to modify the verdict by changing the amount of the recovery.” (citations

omitted)); accord WRI/Raleigh, L.P. v. Shaikh, 183 N.C. App. 249, 257, 644 S.E.2d

245, 249 (2007) (interpreting the holding in this Court’s Circuits Co. opinion as

finding error where the trial court modified the amount of the judgment awarded to

conform with the trial court’s instructions after determining that the jury had

disregarded the instructions). Accordingly, we reverse the portion of the trial court’s

3 March 2015 order purporting to grant plaintiff relief by amending the damages

award of the 21 October 2014 judgment, and vacate the corresponding amended

judgment.

      Furthermore, as discussed in Issue I, the trial court’s finding that the reduction

of the damage award from $512,162.00 to $1.00 was grossly excessive, as well as the

court’s determination that the personal injury award compensating plaintiff only for

Pamela’s medical expenses but not for pain and suffering was indicative of an award

influenced by passion or prejudice, was properly within its discretion and afforded

the trial court authority to grant plaintiff relief from the judgment pursuant to Rule

59(a). See N.C.G.S. § 1A-1, Rule 59(a) (authorizing the grant of a new trial “on all or

part of the issues” should the damage award appear to be inadequate); see also



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                                   Opinion of the Court



Cicogna, 345 N.C. at 490, 480 S.E.2d at 637 (ordering a new trial on the issue of

damages after reasoning that “[i]f the issue which was erroneously submitted did not

affect the entire verdict, there should not be a new trial on all issues”); Snead, 101

N.C. App. 462, 400 S.E.2d 91 (granting a new trial on the issue of damages). Rule

59(a) authorizes a new trial limited to issues that do not affect the entire verdict, such

as, in this case, damages. Accordingly, we remand this matter to the trial court for a

new trial on the issue of damages only. Defendant is not restricted from presenting

any evidence which bears on plaintiff’s alleged damages and Pamela Justus’s failure

to mitigate her damages.

                                           III

      Alternatively, defendant again argues that should this Court vacate the trial

court’s amended judgment, but not reinstate the 21 October 2014 judgment, the

appropriate remedy is a new trial on all issues, so as to allow defendant to pursue a

defense of contributory negligence. Thus, defendant now challenges the trial court’s

grant of plaintiff’s motion for a directed verdict on defendant’s contributory

negligence defense. We overrule defendant’s argument.

      “A motion . . . for a directed verdict under G.S. 1A-1, Rule 50(a) tests the legal

sufficiency of the evidence to take the case to the jury and support a verdict . . . .”

Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977)

(citations omitted).



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                                   Opinion of the Court



             In passing upon the motion, the court must consider the
             evidence in the light most favorable to the non-moving
             party, taking all evidence which tends to support his
             position as true, resolving all contradictions, conflicts and
             inconsistencies in his favor and giving him the benefit of
             all reasonable inferences. The motion may be granted only
             if the evidence is insufficient, as a matter of law, to support
             a verdict for the non-moving party. The same test is
             apposite whether considering a Rule 50(a) motion directed
             at the plaintiff’s claim or at the defendant’s counterclaim.

Eatman v. Bunn, 72 N.C. App. 504, 506, 325 S.E.2d 50, 51–52 (1985) (citations

omitted). “Indeed, a directed verdict on the ground of contributory negligence is only

proper when . . . no other reasonable inference can be drawn from the evidence.”

Stanfield v. Tilghman, 342 N.C. 389, 394, 464 S.E.2d 294, 297 (1995) (citation

omitted). “We review the grant of a motion for directed verdict de novo.” Smith v.

Herbin, ___ N.C. App. ___, ___, 785 S.E.2d 743, 745 (2016) (citation omitted). “In

reviewing the trial court’s ruling on appeal, the scope of review is limited to those

grounds argued by the moving party before the trial court.” Wilburn v. Honeycutt,

135 N.C. App. 373, 374, 519 S.E.2d 774, 775 (1999) (citation omitted); accord Jernigan

v. Herring, 179 N.C. App. 390, 393, 633 S.E.2d 874, 877 (2006).

                   Contributory negligence, as its name implies, is
             negligence on the part of the plaintiff which joins,
             simultaneously or successively, with the negligence of the
             defendant alleged in the complaint to produce the injury of
             which the plaintiff complains. . . . Contributory negligence
             by the plaintiff can exist only as a co-ordinate or
             counterpart of negligence by the defendant as alleged in
             the complaint.



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                                   Opinion of the Court



Jackson v. McBride, 270 N.C. 367, 372, 154 S.E.2d 468, 471 (1967) (citations omitted).

“Contributory negligence occurs either before or at the time of the wrongful act or

omission of the defendant.”     Miller, 273 N.C. at 239, 160 S.E.2d at 74 (citation

omitted). “[I]n order for a contributory negligence issue to be presented to the jury,

the defendant must show that plaintiff’s injuries were proximately caused by his own

negligence.” Cobo v. Raba, 347 N.C. 541, 545, 495 S.E.2d 362, 365 (1998) (a medical

malpractice case) (citation omitted).

      At trial, defendant’s arguments advocating for an instruction on contributory

negligence centered around evidence that Pamela Justus smoked following her first

surgery with Dr. Rosner.

                    We know that nicotine prevents fusions from
                    healing. We know she was told about this. She
                    smoked through her first fusion, and it failed
                    her. Basically, an S-deformity of her neck
                    increased.

                    ....

                    This is not on Dr. Rosner. This one is on the
                    patient.

After hearing the argument referencing testimony of the effects of smoking on a

potential full recovery, the trial court granted plaintiff’s motion for a directed verdict

and dismissed defendant’s defense of contributory negligence.

      In his brief to this Court contending the directed verdict should be reversed,

defendant notes opinions wherein an injured plaintiff failed to follow doctor


                                          - 26 -
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                                   Opinion of the Court



instructions, and as an almost direct result, the disease the plaintiff was fighting

failed to be diagnosed or appropriately treated. See McGill v. French, 333 N.C. 209,

424 S.E.2d 108 (1993) (holding the issue of contributory negligence was for the jury

where the plaintiff contributed to his worsening systems by failing to follow his

physician’s instructions, denying the physician the opportunity to treat the plaintiff);

Katy v. Capriola, 226 N.C. App. 470, 742 S.E.2d 247 (2013) (holding the issue of

contributory negligence was for the jury where the plaintiff failed to seek medical

attention as her condition deteriorated). However, these cases are distinguishable

from the instant case.

      In both McGill and Katy, the patients failed to follow directions given by a

treating physician and as a result, the conditions for which the patients reported to

their respective physicians went untreated. See McGill, 333 N.C. 209, 424 S.E.2d

108; Katy, 226 N.C. App. 470, 742 S.E.2d 247. Here, Pamela Justus reported to Dr.

Rosner for severe, debilitating headaches. Dr. Rosner then performed two surgeries

for which he lacked a medical indication, compromising the ligaments and muscle

that stabilized Pamela’s head and creating the physical condition that led to Pamela’s

post-laminectomy kyphosis or S-deformity. Even if we set aside evidence that Dr.

Rosner’s surgeries were without medical indication, the conduct defendant points to

as   evidence   of   Pamela’s   contributory       negligence   occurred   not   before   or

contemporaneous with but following Dr. Rosner’s negligent acts that caused injury.



                                          - 27 -
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                                  Opinion of the Court



      Viewing the evidence in the light most favorable to defendant, there is no

evidence Pamela Justus contributed to the negligent conduct that damaged her neck.

See Miller, 273 N.C. at 239, 160 S.E.2d at 74; Jackson, 270 N.C. at 372, 154 S.E.2d at

471; see also Andrews v. Carr, 135 N.C. App. 463, 521 S.E.2d 269 (1999) (holding that

even if the plaintiff’s post-surgery conduct contributed to his injuries, his conduct

could not constitute contributory negligence as it occurred subsequent to the

negligent medical care); Powell v. Shull, 58 N.C. App. 68, 293 S.E.2d 259 (1982)

(holding the plaintiff’s failure to keep follow-up appointments with the defendant

physician did not amount to contributory negligence as the plaintiff’s actions could

not have decreased or lessened the injury caused by the physician’s negligence).

Therefore, we affirm the trial court’s directed verdict on contributory negligence, and

accordingly, defendant’s argument is overruled.

                                          IV

      Lastly, defendant challenges the trial court’s lump sum award of costs in the

amount $175,547.59 against defendant. Defendant contends the trial court failed to

provide sufficient detail as to what the award was to reimburse, and if the amounts

awarded were reasonable. We agree in part.

      Pursuant to General Statutes, section 6-20,

             [i]n actions where allowance of costs is not otherwise
             provided by the General Statutes, costs may be allowed in
             the discretion of the court. Costs awarded by the court are
             subject to the limitations on assessable or recoverable costs


                                         - 28 -
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                                         Opinion of the Court



               set forth in G.S. 7A-305(d), unless specifically provided for
               otherwise in the General Statutes.”

N.C. Gen. Stat. § 6-20 (2015). Pursuant to 7A-305,

               [t]he following expenses, when incurred, are assessable or
               recoverable, as the case may be. The expenses set forth in
               this subsection are complete and exclusive and constitute
               a limit on the trial court’s discretion to tax costs pursuant
               to G.S. 6-20:

               (1) Witness fees, as provided by law.

               ....

               (10) Reasonable and necessary expenses for stenographic
               and videographic assistance directly related to the taking
               of depositions and for the cost of deposition transcripts.

               (11) Reasonable and necessary fees of expert witnesses
               solely for actual time spent providing testimony at trial,
               deposition, or other proceedings.

N.C. Gen. Stat. § 7A-305(d)(11) (2015).7

       “When read together, it is clear that costs require statutory authorization and

that section 7A-305 or any other statute may authorize costs.” Peters v. Pennington,

210 N.C. App. 1, 25, 707 S.E.2d 724, 741 (2011).

               [T]he standard of review applicable to the taxing of costs .
               . . [is a] combination of the two standards: Whether a trial
               court has properly interpreted the statutory framework
               applicable to costs is a question of law reviewed de novo on
               appeal. The reasonableness and necessity of costs is

       7 “Subject to the specific limitations set forth in G.S. 7A-305(d)(11), an expert witness, other
than a salaried State, county, or municipal law-enforcement officer, shall receive such compensation
and allowances as the court, or the Judicial Standards Commission, in its discretion, may authorize.”
N.C. Gen. Stat. § 7A-314(d) (2015).

                                                - 29 -
                                   JUSTUS V. ROSNER

                                   Opinion of the Court



             reviewed for abuse of discretion.

Khomyak v. Meek, 214 N.C. App. 54, 57, 715 S.E.2d 218, 220 (2011) (citation omitted).

“Abuse of discretion results where the court’s ruling is manifestly unsupported by

reason or is so arbitrary that it could not have been the result of a reasoned decision.”

Manning v. Anagnost, 225 N.C. App. 576, 581, 739 S.E.2d 859, 862 (2013) (citation

omitted).

      “If a category of costs is set forth in section 7A–305(d), ‘the trial court is

required to assess the item as costs.’ Subsection (d)(11) therefore requires a trial

court to assess as costs expert fees for time spent testifying at trial.” Peters, 210 N.C.

App. at 25–26, 707 S.E.2d at 741 (quoting Springs v. City of Charlotte, 209 N.C. App.

271, ––––, 704 S.E.2d 319, 328 (2011)).

      Attached to plaintiff’s motion for costs, plaintiffs provided that the total for

court reporting and videography bills for disposition was $89,789.84, and for trial

experts $85,757.75. The sum of those two amounts equals $175,547.59, the amount

the court awarded. The trial court did not award attorney’s fees ($2,530,474.27),

paralegal fees ($668,175.00), or “Additional Expert Witness Fees” ($458,089.30).

Defendant points out that three experts—Arthur Caplan, Ph.D; Brian Currie, M.D.;

and David Barton Smith—did not testify against Dr. Rosner, the party against whom

plaintiff prevailed; rather, those experts testified against trial defendants found to be

not liable or negligent. However, defendant fails to establish that ordering payment



                                          - 30 -
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                                    Opinion of the Court



of these expert fees was an abuse of discretion. See generally Parton v. Boyd, 104

N.C. 422, 424 (104 N.C. 310, 311), 10 S.E. 490, 491 (1889) (“The court gave judgment

against the plaintiff for costs, and the presumption is, nothing to the contrary

appearing, that it did so in the exercise of its discretionary authority. . . . To [reverse

for abuse] . . . would be to substitute the discretion of this Court for that of the court

below.”). Therefore, we hold the award is properly within the trial court’s discretion.

Accordingly, defendant’s argument is overruled.

      AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; AND

      REMANDED.

      Judge INMAN concurs.

      Judge TYSON concurs in part and dissents in part by separate opinion.




                                           - 31 -
 No. COA15-1196 – Justus v. Rosner


      TYSON, Judge, concurring in part, and dissenting in part.


      I concur with that portion of the majority’s opinion, which holds the trial court

is without authority under Rule of Civil Procedure 59 to substitute its opinion for the

jury’s verdict on plaintiff’s damages and to alter the amount of damages to be

recovered, and reverses the trial court’s order. I also concur with that portion of the

majority’s opinion, which holds the trial court did not err by granting plaintiff’s

motion for directed verdict on defendant’s contributory negligence defense.

      I also find reversible error in the trial court’s ruling under Rule 59 and write

separately. I disagree with the majority’s holding that the trial court did not commit

reversible error under Rule 59 when it erroneously set aside the jury’s verdict on the

issue of Pamela’s failure to mitigate her damages.

      I also disagree with and dissent from that portion of the majority’s opinion

which upholds the order requiring defendant to pay as recoverable costs, fees for

plaintiff’s three non-testifying experts. Their testimonies were directed against the

hospital defendants, which were acquitted by the jury, and did not pertain to Dr.

Rosner’s standard of care or alleged acts of negligence. The trial court possessed no

statutory authority to order these fees as costs assessed against Dr. Rosner as costs.

I respectfully dissent.

                          I. Ruling on Plaintiff’s Rule 59 Motion

      The trial court’s order does not specifically state which subsections of Rule 59
                                   JUSTUS V. ROSNER

                  TYSON, J., concurring   in part, and dissenting in part


it relied upon to set aside the jury’s one dollar final award. However, it is apparent

from the language of the order that the trial court purportedly granted relief from the

jury’s verdict pursuant to subsections (a)(6) and (7) of Rule 59, which provide:

             (a) Grounds. — A new trial may be granted to all or any of
             the parties and on all or part of the issues for any of the
             following causes or grounds:

             .   .   .   .

             (6) Excessive or inadequate damages appearing to have
             been given under the influence of passion or prejudice;

             (7) Insufficiency of the evidence to justify the verdict or
             that the verdict is contrary to law[.]

N.C. Gen. Stat. § 1A-1, Rule 59 (a)(6) and (7) (2015).

      It also appears the trial court also relied, at least in part, upon subsection (a)(8)

of the Rule, which provides a new trial may be granted due to an “[e]rror in law

occurring at the trial and objected to by the party making the motion.” N.C. Gen. Stat.

§ 1A-1, Rule 59(a)(8) (emphasis supplied). The trial court concluded that it had

“committed prejudicial error in submitting Issue #12 to the jury,” because Dr. Rosner

“presented no legally competent evidence sufficient to support a finding that Mrs.

Justus unreasonably failed to mitigate her damages.”

                 A. Relief under Rule 59(a)(8) for Error of Law at Trial

      The trial court erred and its order must also be reversed to the extent the court

relied upon subsection (a)(8) of Rule 59 to set aside the jury’s verdict. Subsection



                                             2
                                   JUSTUS V. ROSNER

                 TYSON, J., concurring   in part, and dissenting in part


(a)(8) requires plaintiff to have objected: (1) at trial to the evidence when admitted at

trial; (2) to the trial court’s jury instructions; and, (3) to submission of Issue #12 to

the jury. Plaintiff failed to object to any and all three actions. See id.

      The trial court set aside the jury’s verdict, at least in part, based upon a

purported error of law, which occurred at trial. Any purported “error of law” in giving

the mitigation of damages instruction and submitting Issue # 12 to the jury cannot

serve as any basis for Rule 59 relief, where plaintiff failed to object at any point at

trial when the testimony was admitted and after the jury was instructed, considered

the issue, and reached a verdict. See id.

                                 B. Pain and Suffering

      To support the granting of relief under subsection (a)(6) of Rule 59 (“[e]xcessive

or inadequate damages appearing to have been given under the influence of passion

or prejudice”), the trial court found and concluded:

             16. The foregoing sum [$512,162.00] reflected only Mrs.
             Justus’ medical bills; it included no damages for pain and
             suffering.

             .   .   .   .

             18. Given the uncontroverted evidence that Mrs. Justus
             experienced severe pain and suffering (e.g., nausea,
             tremors, and imbalance) as a result of the procedures
             performed by Dr. Rosner, and that, even had she allowed
             Dr. Rosner to continue to treat her, she would have
             endured at least some of these symptoms, the jury’s finding
             of no damages for pain and suffering is inadequate.



                                            3
                                 JUSTUS V. ROSNER

                TYSON, J., concurring   in part, and dissenting in part


             . . . .

             8. The jury appears to have made its initial damage finding
             ($512,16[2].00) under the influence of passion or prejudice,
             for the finding entirely omits any sum for pain and
             suffering despite the uncontroverted evidence that Mrs.
             Justus experienced severe pain and suffering.

      Fifteen different allegations of negligence related to Dr. Rosner’s performance

of the surgeries were submitted to the jury. The verdict sheet simply required the

jury to answer “yes” or “no” to the question: “Was Pamela Justus injured by the

negligence of the defendant, Michael J. Rosner, M.D.?” It is unknown upon which

theory or theories of negligence the jury relied upon in answering “yes” to this

question.

      Plaintiff’s counsel argued to the jury that Pamela had endured pain and

suffering for eleven years, but did not present any evidence of a dollar amount of her

pain and suffering. The trial court instructed the jury to consider the evidence as to

each of the following types of damages: medical expenses, pain and suffering, scars

or disfigurement, partial loss of use of part of the body, and permanent injury until

the time of death.

      Without objection, the trial court further instructed: “The total of all damages

are to be awarded in one lump sum.” Pursuant to the trial court’s instruction, the

jury returned a lump sum damages verdict, and appears to have considered, but

awarded zero dollars for pain and suffering. Although the jury was not asked to



                                           4
                                    JUSTUS V. ROSNER

                 TYSON, J., concurring   in part, and dissenting in part


differentiate its damages award, plaintiff testified the amount of Pamela’s medical

expenses was $512,162.03, three cents more than the amount of the jury’s original

verdict.

      The trial court substitutes its judgment for that of the jury’s without knowing

which theory or theories of negligence the jury’s verdict relies upon. Included in the

list of fifteen theories of negligence submitted to the jury are acts by Dr. Rosner which

would not necessarily cause the jury to award any damages for pain and suffering,

even where evidence was presented that Pamela experienced pain and suffering after

the surgeries. The trial court abused its discretion by presuming the jury’s finding of

negligence was definitively linked to pain and suffering. Neither plaintiff nor the

trial court shows any basis to set aside the jury’s verdict.

                                 C. Failure to Mitigate

             The rule in North Carolina is that an injured plaintiff,
             whether his case be tort or contract, must exercise
             reasonable care and diligence to avoid or lessen the
             consequences of the defendant’s wrong. If he fails to do so,
             for any part of the loss incident to such failure, no recovery
             can be had.

Radford v. Norris, 63 N.C. App. 501, 502-03, 305 S.E.2d 64, 65 (1983) (citation and

quotation marks omitted) (emphasis supplied). “This doctrine has generally been

held to preclude recovery for those consequences of the tort-feasor’s act which could

have been avoided by acting as a reasonable prudent man in following medical

advice.” Id. (emphasis supplied).


                                            5
                                  JUSTUS V. ROSNER

                  TYSON, J., concurring   in part, and dissenting in part


      Without any objection, the trial court instructed the jury consistent with the

law as follows:

                    A person injured by the negligent conduct of another
             is nonetheless under a duty to use that degree of care which
             a reasonable person would use under the same or similar
             circumstances to avoid or minimize the harmful
             consequences of her injury. A person is not permitted to
             recover for injuries she could have avoided by using means
             which a reasonably prudent person would have used to
             cure her injury or alleviate her pain.

                   However, a person is not prevented from recovering
             damages she could have avoided unless her failure to avoid
             those damages was unreasonable.

                    If you find that a healthcare provider advised the
             plaintiff to follow up in her care and treatment, you would
             not necessarily conclude that Pamela Justus acted
             unreasonably in declining such advice. In determining
             whether Pamela Justus’ conduct was reasonable, you must
             consider all of the circumstances as they appeared to
             Pamela Justus at the time she chose not to follow the
             healthcare provider’s advice.

                    These may include the financial condition of the
             plaintiff, the degree of risk involved, the amount of pain
             involved, the chances for success, the benefits to be
             obtained from the procedures and treatment, the
             availability of alternate procedures and treatment, or the
             knowledge [or] lack of knowledge of the plaintiff Pamela
             Justus.

      The jury was clearly instructed they were to determine and reach a verdict on

whether Pamela had failed to use reasonable care to avoid or minimize the harmful

consequences of her injury. The jury was further instructed on various factors to



                                             6
                                  JUSTUS V. ROSNER

                TYSON, J., concurring   in part, and dissenting in part


consider in deciding whether Pamela acted reasonably to seek medical treatment for

her worsening symptoms and kyphosis. Whether Pamela unreasonably declined to

seek appropriate medical treatment to mitigate her damages was the sole factual

issue for the jury to determine under the court’s mitigation instruction.

      Consistent with the court’s instruction and again without objection, Issue #12

was submitted to the jury, which required the jury to determine: “By what amount,

if any, should the plaintiff’s actual damages be reduced because of Pamela Justus’s

unreasonable failure, if any, to avoid or minimize her damages?”

      In support of its order setting aside the jury’s verdict, the trial court also found

and concluded: (1) Pamela had no duty to return to Dr. Rosner, as opposed to other

healthcare providers; (2) the testimony of Dr. Rosner’s four experts suggested Pamela

had a duty to return specifically to Dr. Rosner, which was cumulative, inaccurate,

and misleading; (3) Dr. Rosner therefore presented “no legally competent evidence”

sufficient to support a finding that Pamela unreasonably failed to mitigate her

damages; (4) no evidence was presented that Pamela unreasonably delayed trying to

have her problems diagnosed and corrected; and, (5) the jury appears to have reduced

its damage award based upon the cumulative impact of the misleading testimony of

Defendant’s experts.

      The plaintiff’s failure to mitigate damages in a medical malpractice suit and

the consequences of her actions, and lack thereof, is a proper area of expert medical



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                                 JUSTUS V. ROSNER

                TYSON, J., concurring   in part, and dissenting in part


testimony and is solely a fact determinative issue. Where conflicting evidence exists

of whether the plaintiff undertook reasonable measures to mitigate her damages and

follow medical advice or seek treatment, the plaintiff’s actions in mitigation of

damages is a jury question. See id. at 502-03, 305 S.E.2d at 65.

      “It is the jury’s function to weigh the evidence and to determine the credibility

of witnesses.” Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 664 (1997).

“The jury’s function as trier of fact must be given the utmost consideration and

deference before a jury’s decision is to be set aside.” Di Frega v. Pugliese, 164 N.C.

App. 499, 510, 596 S.E.2d 456, 464 (2004) (citations and quotation marks omitted).

      Plaintiff presented evidence regarding her course of action and the medical

treatment Pamela sought and received after her refusal to return to Dr. Rosner. The

record clearly shows Pamela presented to numerous physicians for her continued

head and neck pain, and neurological symptoms after her refusal to return to Dr.

Rosner in May 2001. She was evaluated and treated by other physicians as early as

July of 2001.

      Dr. Rosner also presented un-objected to and properly admitted expert

testimony and other evidence that plaintiff’s “chin to chest” deformity was the result

of her failure to timely receive follow-up treatment from Dr. Rosner or another

neurosurgeon.

      It is the function of the jury to weigh the admitted testimony and evidence,



                                           8
                                    JUSTUS V. ROSNER

                 TYSON, J., concurring    in part, and dissenting in part


determine its credibility, and decide the extent, if any, Pamela failed to mitigate

damages. It was solely the function of the jury to determine whether Pamela’s post-

surgery medical treatment and conduct was “reasonable” in light of the

circumstances. See Anderson, 345 N.C. at 483, 480 S.E.2d at 664.

       Plaintiff’s argument, and the trial court’s order, on mitigation of damages is

premised upon the claim that the jury believed Pamela had an affirmative duty to

specifically return to Dr. Rosner. This un-substantiated premise and the set aside of

the jury’s verdict is reversible error.

       The expert witnesses did not state and the jury was not instructed that Pamela

was required to return specifically to Dr. Rosner. Plaintiff and the trial court placed

their own emphasis upon the questions and answers posed to Dr. Rosner’s experts.

       The transcript shows the jury heard substantial amounts of evidence regarding

Pamela’s post-surgery course of action, which focused on the lapse of time in obtaining

the proper treatment for the “chin to chest” deformity.          For example, Dr. Seiff

testified, “[s]o the fact that hers was chin on chest was because it went unaddressed

for about three years before the time she presented to Dr. Coric.”

       When viewed in light of all of the other evidence, the un-objected to testimonies

of defendant’s medical experts on areas within their expertise does not support the

trial court’s decision to set aside the jury’s verdict. Di Frega, 164 N.C. App. at 510,

596 S.E.2d at 464. None of the expert witnesses testified Pamela’s return specifically



                                             9
                                   JUSTUS V. ROSNER

                 TYSON, J., concurring   in part, and dissenting in part


to Dr. Rosner was the only way of mitigating her damages, or that Pamela was under

any duty to return specifically to Dr. Rosner.

      The jury heard all of the evidence presented from both sides regarding

Pamela’s post-surgery actions and medical treatment.            The jury weighed the

evidence, determined credibility of the witnesses, made an award, and reduced the

verdict amount by all but one dollar for Pamela’s failure to mitigate her damages.

      The evidence presented to the jury was more than sufficient to support the

jury’s finding that Pamela unreasonably failed to avoid, minimize or mitigate her

damages. In light of all the testimony, Dr. Rosner’s expert witnesses’ testimonies

were not so “misleading” to allow or compel the trial court to set aside the verdict on

the mitigation of damages issue.

      The trial court’s order, which aside the jury’s verdict was based upon the

court’s notion that Dr. Rosner’s expert witnesses had misled the jury by stating

Pamela had a duty to return for follow up care specifically to Dr. Rosner, is error. The

trial court’s order on this issue is properly reversed. The jury’s verdict and award of

damages is based upon properly admitted expert testimonies, within the realm of

their expertise, and other evidence, without any objections from plaintiff.

                       II. Award of Costs for Non-Testifying Experts

      N.C. Gen. Stat. § 6-20 (2015) allows for assessment of costs in a civil action “in

the discretion of the court.” Any costs awarded “are subject to the limitations on



                                            10
                                  JUSTUS V. ROSNER

                 TYSON, J., concurring   in part, and dissenting in part


assessable or recoverable costs set forth in [N.C. Gen. Stat. §] 7A-305(d), unless

specifically provided for otherwise in the General Statutes.” Id.

      Prior to 2007, N.C. Gen. Stat. § 7A-305(d) set forth a list of expenses, which

“when incurred, are also assessable or recoverable, as the case may be[.]” N.C. Gen.

Stat. § 7A-305(d) (2005). In 2007, the General Assembly amended the statute to

remedy a conflict between N.C. Gen. Stat. §§ 6-20 and 7A-305(d). See 2007 N.C. Sess.

Laws 212.

      N.C. Gen. Stat. § 7A-305(d), as amended, states “the expenses set forth in this

subsection are complete and exclusive and constitute a limit on the trial court’s

discretion to tax costs pursuant to G.S. 6-20.” (emphasis supplied). The statute

specifically lists and defines those items, which the trial court has the power to

lawfully assess as costs. Id.

      This list was amended to include “[r]easonable and necessary fees of expert

witnesses solely for actual time spent providing testimony at trial, deposition, or

other proceedings.” N.C. Gen. Stat. § 7A-305(d)(11) (2015). Our Supreme Court has

stated this statute does not require the party seeking the costs to show the expert

witness testified subject to a subpoena. Lassiter v. N.C. Baptist Hosps., Inc., 368 N.C.

367, 379, 778 S.E.2d 68, 76 (2015).

      As the majority’s opinion recognizes, the trial court’s order of costs in the

amount of $175,547.59 includes expenses listed in plaintiff’s spreadsheet under the



                                            11
                                  JUSTUS V. ROSNER

                TYSON, J., concurring   in part, and dissenting in part


categories “Experts at Trial” ($85,757.75) and “All Court Reporting & Videography

Bills for All Depositions” ($89,789.84). Both categories include expenses plaintiff

incurred for the testimonies of Dr. Arthur Caplan, Dr. Brian Currie, and Dr. David

Barton Smith.

      However, all of these three witnesses limited their trial testimonies and

opinions solely to criticisms against the hospital defendants and not against Dr.

Rosner.

      I disagree with the majority opinion’s review of this issue of award of costs

under an abuse of discretion standard. As our Supreme Court explained in Lassiter:

             As a result of the fact that an award of costs is an exercise
             of the statutory authority, if the statute is misinterpreted,
             the judgment is erroneous. In other words, when the
             validity of an award of costs hinges upon the extent to
             which the trial court properly interpreted the applicable
             statutory provisions, the issue before the appellate court is
             one of statutory construction, which is subject to de novo
             review.

Id. at 375, 778 S.E.2d at 73 (brackets, quotation marks, and citations omitted).

      Here, the trial court misinterpreted N.C. Gen. Stat. § 7A-305(d)(11) and

awarded costs for three of plaintiff’s expert witnesses, who offered testimonies

directed against actions by the hospital defendant, which was acquitted by the jury,

and did not testify to Dr. Rosner’s standard of care or alleged acts of negligence. See

id. On de novo review, the award on costs should be reversed and this issue remanded

for a new hearing.


                                           12
                                    JUSTUS V. ROSNER

                 TYSON, J., concurring   in part, and dissenting in part


                                     III. Conclusion

       The trial court properly granted plaintiff’s motion for directed verdict on

defendant’s contributory negligence defense.

       The trial court abused its discretion under subsections (a)(6), (7) and (8) of Rule

59 by setting aside a valid jury’s verdict on the issue of damages, where expert

testimonies and other evidence was properly admitted, without objection, to permit

the jury to conclude Pamela failed to mitigate her damages and enter its award.

       The trial court also acted without statutory authority to assess Dr. Rosner to

pay costs for plaintiff’s three expert witnesses’ fees, whose testimonies did not pertain

to Dr. Rosner’s standard of care or alleged negligence.

       I vote to vacate the trial court’s order on plaintiff’s rule 59 motion, and remand

to the trial court for reinstatement of the jury’s verdict. I also vote to reverse the trial

court’s award on costs and remand for a new hearing, and for entry of an order, which

does not include costs for any expert who did not specifically testify regarding Dr.

Rosner’s standard of care or alleged acts of negligence.           I concur in part and

respectfully dissent in part.




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