BRUCE JUSTUS as Administrator of the Estate of Pamela Jane Justus, Plaintiff,
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.
in the Court of Appeals 7 June 2016.
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 Henderson County, No. 03 CVS 977.
Law Offices of Wade Byrd, P.A., by Wade E. Byrd, for
Robbins Yates & Ponton LLP, by Tobias S. Hampson and K.
Edward Greene, for defendant-appellants.
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 to that defense. Where the
trial court acted within its statutory and discretionary
authority in awarding costs to plaintiff, we affirm.
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.,  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 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
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,
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
a. On June 27, 2000, Dr. Rosner performed a laminectomy on
b. On February 6, 2001, after Mrs. Justus reported increased
pain, Dr. Rosner performed a second 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
h. In late 2011, Mrs. Justus had another corrective back and
neck surgery performed by Dr. Coric of Carolina Neurosurgery
and Spine Associates.
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
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
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
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, 16.00).
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.
. . . .
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
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
8. The jury appears to have made its initial damage finding
($512, 16.00) 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.
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
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
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
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.
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.
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.
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)
[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
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
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)).
to North Carolina General Statutes, section 1A-1, Rule 59,
[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 ...