                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                            No. 11-10509                APRIL 6, 2012
                                      ________________________           JOHN LEY
                                                                          CLERK
                            D.C. Docket No. 2:09-cv-00026-WKW-WC


BILLY FREE,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellee,

WILEY SANDERS TRUCK LINES, INC.,

llllllllllllllllllllllllllllllllllllllll                         Intervenor Plaintiff,

                                             versus

JAMES BAKER,
R + L CARRIERS SHARED SERVICES, LLC,
GREENWOOD MOTOR LINES, INC.,

llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellants,

R & L TRANSPORTATION, LLC, et al.,

llllllllllllllllllllllllllllllllllllllll                       Defendants.
                                      ________________________

                           Appeal from the United States District Court
                               for the Middle District of Alabama
                                 ________________________

                                           (April 6, 2012)
Before CARNES, MARTIN and JORDAN, Circuit Judges.

PER CURIAM:

      In this case arising from the collision of two tractor-trailer trucks, the

defendants do not dispute their liability for negligence. Instead, they argue that

the plaintiff presented insufficient evidence at trial to establish that the negligent

conduct proximately caused some of his injuries. The plaintiff presented expert

medical testimony that the truck wreck aggravated the degenerative spinal

condition that he had suffered from for twenty years. He asked for damages for

medical expenses, pain and suffering, and permanent injury. The jury found that

he was entitled to $483,750.00, which it awarded as a lump sum as part of a

general verdict. The defendants contend that the district court erred in not

granting their motion for judgment as a matter of law on damages because, they

argue, the evidence does not support part of the jury’s lump sum damages award.

                                           I.

      Just before 5:00 a.m. on April 19, 2007, Billy Free was driving a

tractor-trailer truck for Wiley Sanders Truck Line on I-85 in North Carolina.

James Baker was driving a tractor-trailer truck for his employers, R + L Carriers

Shared Services, LLC, and Greenwood Motor Lines. Free entered the right lane,

and Baker crashed into the back of Free’s truck, propelling it 360 feet down the

                                           2
highway and through a guard rail. Free’s truck overturned.

      Free filed a lawsuit in Montgomery County, Alabama circuit court against

Baker, Greenwood Motor Lines, R + L Carriers Shared Services, and R&L

Transportation, LLC. The defendants removed the case to federal court. Free’s

motion to remand was denied, and R&L Transportation was dismissed as

fraudulently joined. Free’s amended complaint asserted four counts: (1)

negligence, (2) wantonness, (3) negligent/wanton entrustment, (4)

negligent/wanton hiring retention, supervision, or maintenance. Before trial, Free

dismissed all claims against the defendants except for negligence, and he dropped

his demand for punitive damages.

      The case proceeded to trial on the negligence claim. Free’s amended

complaint asserted: “As a proximate result of Defendants’ negligence, Billy Free

was injured and damaged in that he was hurt all over his body, incurred medical

expenses, suffered back surgery, suffered physical and mental pain, lost

income/jobs because of his inability to work and will continue to suffer in the

future.” In a pre-trial conference just before the jury was selected, Free’s counsel

described the damages Free was claiming at that point as: “Medical expenses,

$72,000, and also it’s going to be in evidence of $48,000 subrogation, a surgery,




                                          3
and mental pain and anguish.”1 Counsel emphasized that Free claimed damages

for past, present, and future pain and suffering and permanent injury in the form of

“12 percent vocational disability.” Free decided not to seek future lost wages.

      At the close of Free’s evidence, the defendants moved for judgment as a

matter of law under Federal Rule of Civil Procedure 50(a), and the district court

decided to hold that motion until the close of all the evidence. At that time, the

defendants renewed their Rule 50(a) motion, which the district court denied.

The jury was instructed: “Finally, as to the first issue on which plaintiff has the

burden of proof, if you find by a preponderance of the evidence that Defendant

James Baker was negligent in any one or more of the ways contended by plaintiff

and that such negligence was a proximate cause of plaintiff’s injury, then you must

proceed to the next inquiry,” which is contributory negligence. (Emphasis added.)

The jury was told that if it found that Free was not contributorily negligent and

that Baker’s negligence was the proximate cause of only a “technical” injury to

Free, it should award nominal damages. If the jury found actual damages,

however, it should award an amount for “medical expenses, pain and suffering,




      1
          The subrogation claim is not involved in this appeal.

                                                  4
and permanent injury” in one lump sum.2

       The jury returned a verdict that: Baker was negligent and his negligence

proximately caused the accident; Free was not contributorily negligent; and Free

was entitled to $483,750.00 in damages. After the district court entered judgment

on that verdict, the defendants filed a post-trial motion asking for judgment as a

matter of law under Rule 50(b) or for a new trial under Rule 59. They “challenged

the sufficiency of Plaintiff’s evidence of an exacerbation injury” and argued that

he had not proved that the accident caused some of his damages. Free’s response

to that motion relied on his expert’s testimony at trial. The district court denied the

motion. This is the defendants’ appeal from the judgment.

                                                 II.

       The defendants contend that the evidence was insufficient to support the

jury verdict on certain “categories of claimed damages.” (Emphasis added.)

Specifically, they challenge the award of damages for “a post-Accident back

surgery and related 12% permanent disability rating.” They argue that they are

entitled to judgment as a matter of law on those damages, yet they ask for a new



       2
         In the district court the defendants objected only to a permanent injury instruction,
arguing that there were no grounds to give it, but they do not challenge any of the jury
instructions in this appeal.


                                                  5
trial on damages as relief. They do not, however, contend that the district court

erred in denying their alternative request for a new trial, as distinguished from

their request for judgment as a matter of law.

                                          A.

      We review de novo a district court’s denial of a motion for judgment as a

matter of law, viewing the evidence in the light most favorable to the verdict. See

D’Angelo v. Sch. Bd. of Polk Cnty., Fla., 497 F.3d 1203, 1208 (11th Cir. 2007).

“[I]n ruling on a party’s renewed motion under Rule 50(b) after the jury has

rendered a verdict, a court’s sole consideration of the jury verdict is to assess

whether that verdict is supported by sufficient evidence.” Chaney v. City of

Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007). For a sufficiency review in a

diversity case, we apply the substantive state law that supplies the rule of decision,

see Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (11th Cir.

2011), which in this case is North Carolina law. We will reverse a district court’s

denial of a motion for judgment as a matter of law “only if the facts and inferences

point overwhelmingly in favor of one party, such that reasonable people could not

arrive at a contrary verdict.” Perera v. U.S. Fid. and Guar. Co., 544 F.3d 1271,

1274 n.1 (11th Cir. 2008) (quotation marks omitted).

      We review a district court’s denial of a motion for a new trial only for an

                                           6
abuse of discretion. St. Luke’s Cataract and Laser Inst., P.A. v. Sanderson, 573

F.3d 1186, 1200 n.16 (11th Cir. 2009). Deferential review “is particularly

appropriate where a new trial is denied and the jury’s verdict is left undisturbed.”

Id. (quotation marks omitted). “New trials should not be granted on evidentiary

grounds unless, at a minimum, the verdict is against the great—not merely the

greater—weight of the evidence.” Id. (quotation marks and alteration omitted).

      Because the defendants contend that they are entitled judgment as a matter

of law on damages but ask for relief in the form of a new trial on damages, one

could debate which standard of review applies. It makes no difference, however,

because under either standard the defendants’ sufficiency of the evidence

challenge fails.

                                         B.

      Damages are an element of a negligence claim under North Carolina law.

See Cucina v. City of Jacksonville, 530 S.E.2d 353, 355 (N.C. Ct. App. 2000)

(holding that to establish a prima facie case of negligence a plaintiff must show

that “(1) [defendant] owed a duty to plaintiff; (2) [defendant] breached that duty;

(3) such breach constituted an actual and proximate cause of plaintiff’s injury;

and, (4) plaintiff suffered damages in consequence of the breach”). The

defendants do not challenge the jury’s finding that they are liable for negligence,

                                          7
and as a result, they concede that Free is entitled to at least some of the damages

the jury awarded him.

       We presume the jury followed its instructions, found actual damages, and

awarded a lump sum for “medical expenses, pain and suffering, and permanent

injury,” or any combination of those things, or any one of them. See, e.g., United

States v. Lopez, 649 F.3d 1222, 1237 (11th Cir. 2011) (“We presume that juries

follow the instructions given to them.”). The defendants did not request that the

jury return a verdict breaking the damage award down into categories. In fact,

they requested an instruction for a lump sum damages award.3 The jury’s verdict

is a general one; it does not divide the damages award into “categories;” it simply

awards $483,750.00 as a lump sum. It makes no sense to contend, as the

defendants do, that they are entitled to judgment as a matter of law on some

categories of damages when there are no categories of damages in the award.

       The defendants rely on an opinion of this Court that did consider (and

reject) an argument that the district court should have granted judgment as a matter

       3
         The district court simplified that proposed instruction and gave it substantially as the
defendants had requested in the jury’s verdict form. The defendants’ proposed instruction was:
“If you find that James Baker was guilty of negligence which proximately caused the accident
and Billy Free Jr. was injured as a proximate consequence of the accident, what sum of money do
you find would reasonably compensate Billy Free Jr. for his injuries caused by the accident?”
The verdict form given to the jury stated: “If Mr. Baker was negligent and his negligence
proximately caused the accident, and if Mr. Free was not contributorily negligent, what amount is
Mr. Free entitled to recover for personal injury from Defendants?”

                                               8
of law on some of the damages awarded by the jury. See Nebula Glass Int’l, Inc.

v. Reichhold, Inc., 454 F.3d 1203, 1207 (11th Cir. 2006). In that case, however,

the jury had awarded specific amounts for specific categories of damages (out of

pocket expenses, unpaid customer claims, lost profits), and the defendant was

challenging two of those categories, which it was able to do because the damages

were divided into separate amounts, not all lumped together. See id. Not only

that, but the defendant in Nebula Glass was not asking for a new trial on damages

as part of its motion for judgment as a matter of law. See id. It was arguing,

instead, that as a matter of law damages could not be awarded for lost profits and

for a particular amount of the unpaid customer claims. Id. The relief it sought

was to set aside those two categories of damages, leaving the third category to be

awarded to the plaintiff. See id. The Nebula Glass case does not support the

defendants’ position in this case but instead illustrates how they should have gone

about preserving any issues regarding categories of damages. Having allowed the

jury to return a lump sum damages award, and having admitted that Free is entitled

to some damages, the defendants cannot be entitled to judgment as a matter of law

on the award of damages.4


       4
         In the district court the defendants stated that they had “not suggested that Plaintiff has
no legal right to pursue compensation for any cuts, bruises, or soreness that resulted from the
Accident.” They did not ask for remittitur in the district court or in this Court, and by conceding

                                                 9
       Furthermore, as we will discuss in the next section of this opinion, even if

the defendants did argue that Free was entitled to no damages, it would not change

the outcome of this case. Free presented sufficient evidence for the issue of

damages to go to the jury, the jury decided that he was entitled to them, and the

defendants are asking this Court either to reweigh evidence already weighed by

the jury or to send the case back for a new jury to try the weighing again.

                                              III.

       In the alternative, even if the defendants had properly presented and

preserved the issue of whether there was sufficient evidence to support all of the

components of the damages award, they would still lose this appeal because there

was enough evidence.

       The defendants contend that the evidence was insufficient to establish that

the truck wreck was the “medical cause” of Free’s need for back surgery and the

12% permanent disability that followed that surgery. They say that the surgery

was required before the wreck, so the wreck could not have caused the need for it.

The surgery in question is the “X-Stop” surgery that was performed on Free by

neurosurgeon Robert H. Bradley, four to five months after the wreck.5 Dr.

liability for negligence, they have admitted on appeal that Free suffered some damages.
       5
       X-Stop is a relatively new type of decompression procedure in which a device is inserted
between two vertebrae to open up space where nerve roots are impinged.

                                               10
Bradley, who had been Free’s treating physician for twenty years, testified as his

medical expert at trial.

      Expert testimony is required to establish medical causation under North

Carolina law. Holley v. ACTS, Inc., 581 S.E.2d 750, 753 (N.C. 2003) (“In cases

involving complicated medical questions far removed from the ordinary

experience and knowledge of laymen, only an expert can give competent opinion

evidence as to the cause of the injury.”(quotation marks omitted)). To prove

causation, the expert must be able to testify that there is a reasonable scientific

probability that a certain cause led to a particular result. Seay v. Wal-Mart Stores,

Inc., 637 S.E.2d 299, 302 (N.C. Ct. App. 2006). Expert testimony on medical

causation cannot be based on speculation and conjecture. Id.

      The North Carolina Supreme Court has determined that a plaintiff failed to

establish medical causation when her experts testified that they did not really

know what caused her injury. See Holley, 581 S.E.2d at 753. The court

concluded in the Holley case that “a review of the expert testimony reveal[ed] that

neither of plaintiff’s physicians could establish the required causal connection

between plaintiff’s accident and her [deep vein thrombosis].” Id. The plaintiff’s

experts testified along these lines in that case:

      Q. . . . what, in your opinion, could or might have caused this DVT?

                                           11
      A. I don’t really know what caused the DVT.

      Q. Is it fair to say that you can’t state to a reasonable degree of
      medical certainty what caused the DVT in this particular incident?

      A. It is fair to state, yes.

Id. at 754. The court explained:

      The entirety of the expert testimony in the instant case suggests that a
      causal connection between plaintiff’s accident and her DVT was
      possible, but unlikely. Doctors are trained not to rule out medical
      possibilities no matter how remote; however, mere possibility has
      never been legally competent to prove causation. Although medical
      certainty is not required, an expert’s “speculation” is insufficient to
      establish causation.

Id. (citation omitted).

      The defendants argue that Dr. Bradley gave that kind of speculative and

conjectural testimony about whether the wreck caused Free’s need for the X-Stop

surgery. They are mistaken. Unlike the expert in Holley case, who testified that

he did not really know what caused the plaintiff’s injury, Dr. Bradley testified that

his post-accident treatment of Free, including the X-Stop surgery, was “definitely”

related to the wreck. He testified that between January 23, 1997, when he

performed the last surgery on Free before the wreck, until the time of the wreck

ten years later in April 2007, Free was working, was not having any more surgery,

and was managing his back problems.

                                         12
      After the wreck Dr. Bradley treated Free on May 23, 2007. He testified that

at that time:

      [Free’s] chief complaint was lower back and left leg pain.
      Interestingly enough, most of his symptoms in the past have been
      predominantly right-sided. There was one incident in the past where
      he did have left leg pain and I operated on the left side of his spine.
      But chief complaint, lower back and left leg pain.

Dr. Bradley sent Free to physical therapy, but by June 13, 2007:

      [Free] was getting worse. He was beginning to have increasing and
      worsening pain in the left buttock radiating down to the left hip and
      the left groin, also some occasional pain radiating into the left
      testicle. And at that point, he had also developed some intermittent
      problems with controlling his bladder.

On July 25, Free “continued to complain of left hip and lower back pain as well as

left leg pain.” Dr. Bradley went on to testify:

      Q. Dr. Bradley, was Billy Free doing everything possible that you asked him
      to do and that he could do to avoid this eventual surgery?

      A. Yes. And actually, he always has.

      Dr. Bradley was asked: “[A]s his doctor for almost 20 years, do you relate

this surgery that you performed, X-Stop, on September the 4th, 2007, to this

trucking accident on April the 19th, 2007?” His answer was, “Definitely.” And

he went on to say:

      Q. All right. Do you have an opinion as to a permanent impairment rating
      that you would give to Billy as a result of this truck wreck?

                                         13
      A. I do. I assigned him a 12 percent impairment rating.

      Q. And when you say impairment rating, that means a 12 percent
      impairment rating that’s with him for the rest of his life.

      A. Yes.

As those excerpts from Dr. Bradley’s testimony illustrate, he testified with a

reasonable degree of medical certainty that the wreck caused Free to need the

surgery that Dr. Bradley performed, and it caused the 12% permanent disability

that followed. It was the jury’s job to decide how to weigh that testimony based

on Dr. Bradley’s testimony that the wreck was the medical cause of the injuries

that resulted. See Seay, 637 S.E.2d at 303 (“The degree of a doctor’s certainty

goes to the weight of the testimony and the weight given expert evidence is a duty

for” the factfinder).

      Under North Carolina law if a plaintiff has a preexisting injury, he can

recover damages only if the defendant’s conduct caused the injury to be

“aggravated or activated” and only to the extent of that “enhancement or

aggravation”:

      [When] injuries are aggravated or activated by a pre-existing physical
      or mental condition, defendant is liable only to the extent that his
      wrongful act proximately and naturally aggravated or activated
      plaintiff’s condition. The defendant is not liable for damages
      attributable solely to the original condition. Plaintiff is confined to

                                         14
       those damages due to its enhancement or aggravation.

Potts v. Howser, 161 S.E.2d 737, 742 (N.C. 1968) (citations, alterations, and

quotation marks omitted). The defendants insist that Dr. Bradley’s testimony

failed to establish that Free’s preexisting back condition was aggravated or

activated by the wreck.

       They focus on the fact that Dr. Bradley’s notes from his treatment of Free on

March 26, 2006 (about a year before the wreck) state: “I also previously

recommended that he make a decision regarding additional spine surgery for his

required lumbar decompression and fusion.” (Emphasis added.) There was

evidence that the X-Stop surgical procedure that Dr. Bradley performed on Free

after the wreck was less invasive than some other decompression procedures, such

as fusion surgery.6 The defendants point to Dr. Bradley’s own words in his

treatment notes, written before the accident, stating that the decompression

procedure was “required.” That means, according to the defendants, that the

accident could not be the medical cause of the need for the X-Stop surgery on

Free’s back. They argue that Dr. Bradley’s testimony was “internally



       6
        Dr. Bradley testified that X-Stop surgery is different from “fusion” surgery, which
“involves taking off bone; taking off ligament; not uncommonly, taking out part of the disc” and
involves “rods and screws” that are installed into the back.


                                               15
inconsistent” and failed to establish that Free’s back condition was aggravated by

the wreck. The surgery could not be required as a result of the accident if it was

required before the accident as a result of the degenerative spinal disease.

      Dr. Bradley, however, testified that the wreck did aggravate Free’s

preexisting back condition, making surgery necessary at the time it was

performed:

      Q. What information did you have after this accident that you’re
      basing your opinion that Mr. Free’s complaints of pain after this
      accident were caused by this accident?

      A. The fact that I had not seen him in the period of time that we
      discussed. The fact that the accident occurred, that within two days
      with the Pri-Med documentation he had the onset of lower back and
      left leg pain. That the symptoms persisted despite conservative
      treatment at Pri-Med and persisted and worsened over time until I
      operated on him with the X-Stop procedure.

      Q. All right. The -- is it your understanding that Mr. Free did not have
      these symptoms prior to the accident?

      A. He did not have the symptoms to this degree. You’ve already
      proven that he had symptoms. And I discussed his statements as well
      that during the truck driving, that not uncommonly he would have
      back pain. He did not have the severe symptoms that he had which
      required medical treatment and kept him off work until we did the last
      surgery.

      Dr. Bradley’s testimony about the wreck aggravating Free’s degenerative

back disease was consistent and unequivocal. His opinion that Free’s back got



                                         16
worse as a result the accident was not simply based on the fact that the worsening

occurred after the accident. Instead, it was also based on his twenty-year history

of treating Free for his back problems and Free’s failure to respond to other

treatment methods. The jury was presented with evidence that for a whole decade

before the accident, Free had chosen not to have the recommended back surgery

and had been managing his back problems with more conservative, non-surgical

treatment.

       The defendants presented testimony from their own expert. Anticipating the

testimony of the defendants’ expert, Free asked the court for permission to present

in rebuttal the testimony of another expert to bolster his case, but the court did not

allow it. The court explained that Dr. Bradley had testified “in my view, credibly

about Mr. Free,” and another doctor (the defendants’ expert) would contradict that

testimony, and “[i]t will be up to the jury to sort it out.” The court was right. It

was a classic battle of experts. The jury watched and heard the two experts give

conflicting testimony, and it credited Free’s expert. That is what juries do. There

was enough evidence to support the verdict.

       AFFIRMED.7


       7
         This appeal was originally scheduled for oral argument, but under 11th Circuit Rule
34-3(f) it was removed from the oral argument calendar.


                                               17
