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Judge overreached by changing $1 verdict to $500K

//June 29, 2017

Judge overreached by changing $1 verdict to $500K

//June 29, 2017

A veteran Henderson County judge overreached when he amended a jury verdict awarding $1 in a wrongful death medical malpractice suit and entered a substitute judgment of more than $500,000, the North Carolina Court of Appeals has ruled.

Jurors initially awarded the estate of Pamela Justus, who died after having spinal surgeries and spending more than a decade in pain, $512,162 in damages for her medical bills. But then the jury slashed the award to $1 based on Justus’ “unreasonable failure” to minimize her damages by not seeking follow-up care from defendant Dr. Michael Rosner, who originally operated on her.

In striking the jury’s verdict, Superior Court Judge Zoro Guice, who joined the state bar in 1969, held that the jury had been misled to believe that Justus had a legal duty to return to Rosner for follow-up treatment, when no such obligation exists.

“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,” Guice wrote.

He added that the jury’s original verdict appeared to have been made “under the influence of passion or prejudice,” because it did not include damages for pain and suffering — and the uncontroverted evidence showed that Justus had suffered before she died.

Guice also determined that the jury’s finding that 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 neurological experts, her condition could have been ameliorated had she timely sought follow-up care.”

Court of Appeals Judge Wanda Bryant, who wrote the majority opinion, held that Guice had not abused his discretion when he found that the evidence of Justus’ alleged failure to mitigate her damages was too flimsy to support the jury’s verdict.

But she and Judge Lucy Inman concluded that Guice acted outside his authority by altering the jury’s verdict instead of granting a new trial. They held that Guice’s order reached beyond the scope authorized under the state’s civil procedure rules.

“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,” Bryant wrote for the majority.

Fayetteville attorney Wade Byrd, who represents Justus’ estate, said he and his client were “delighted” with the majority opinion and expected that the next jury verdict would include an award for pain and suffering and be “substantially” more than the first award.

“I think a new trial on damages is a good thing for us,” he added. “The only bad thing is the dissent.”

Attempts to speak with Rosner’s attorneys at Wyrick Robbins Yates & Ponton in Raleigh were unsuccessful.

Though he dissented, Judge John Tyson agreed with the majority’s finding that Guice acted outside his authority when he substituted his opinion for the jury verdict. But he delivered a blow to the defense when he parted ways with the majority’s affirmation of Guice’s order requiring Rosner to pay for Justus’ 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,” Tyson wrote. “The trial court possessed no statutory authority to order these fees to be assessed against Dr. Rosner as costs.”

Tyson also disagreed with the court’s decision that Guice had not committed reversible error when he held that the evidence of Justus’ attempts to minimize her damages failed to support the jury’s verdict. He contended that the evidence was “more than sufficient to support the jury’s finding that Pamela [Justus] unreasonably failed to avoid, minimize or mitigate her damages.”

When the case is retried on the damages issue, Rosner will be able to argue once again that Justus’ failure to follow-up with Rosner constituted an unreasonable failure to mitigate damages, according to the majority.

The opinion also notes that Rosner can assert that Justus’ habits and health issues — including diabetes, obesity and smoking — also contributed to her pain and suffering and death.

The 44-page decision is Justus v. Rosner (Lawyers Weekly No. 011-180-17). An opinion digest is available at

Follow Phillip Bantz on Twitter @NCLWBantz

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