Justus v. Rosner

IN THE SUPREME COURT OF NORTH CAROLINA

No. 255A17

Filed 21 December 2018

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

v.
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

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 142 (2017), affirming an order

awarding costs, affirming in part and reversing in part an order granting plaintiff’s

motion to alter or amend judgment, and vacating an amended judgment, all entered

on 3 March 2015 by Judge Zoro J. Guice, Jr. in Superior Court, Henderson County,

and remanding for a new trial on damages. On 28 September 2017, the Supreme

Court allowed defendants’ petition for discretionary review of additional issues.

Heard in the Supreme Court on 12 March 2018.

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

Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S.
Hampson, for defendant-appellants, Michael J. Rosner, M.D. and Michael J.
Rosner, M.D., P.A.

HUDSON, Justice.

Here we consider whether the trial court erred in setting aside the jury’s

verdict in this medical malpractice suit on the ground that the jury awarded
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Opinion of the Court

insufficient damages to plaintiff Billy Bruce Justus (plaintiff) after finding that

defendant Michael J. Rosner, M.D. performed unnecessary surgeries on plaintiff’s

now-deceased wife, Pamela Jane Justus. For the reasons stated below, we affirm the

decision of the Court of Appeals to remand this action for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

Pamela came to Dr. Rosner in 2000 after suffering from serious neurological

symptoms for many years and being treated by a variety of neurologists and pain

clinics since the mid-1990s. She complained to Dr. Rosner of severe pain in the back

of her neck and right temple as well as diminished memory and cognition, dizziness,

and balance problems. Based upon his examination, Dr. Rosner discussed with

Pamela the possibility of performing a laminectomy surgery to decompress her spinal

cord. Pamela elected to undergo the laminectomy, which Dr. Rosner performed in

June 2000.

By December 2000, Pamela reported to Dr. Rosner that she was doing

“horribly” and experiencing severe neck pain. Based upon Dr. Rosner’s advice,

Pamela agreed to undergo a C1 laminectomy and suboccipital craniectomy, which Dr.

Rosner performed in February 2001. Dr. Rosner last saw Pamela as a patient on 21

March 2001. During that appointment, she was advised to return in two months and

to contact Dr. Rosner’s office several weeks beforehand if she had not improved

significantly so that an MRI could be ordered. Pamela called Dr. Rosner’s office on

29 May 2001 complaining of severe neck pain and an inability to hold her head up.

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Dr. Rosner’s physician’s assistant advised Pamela to return for an MRI, but Pamela

refused to return, stating that she was “afraid” to come back to the office and that her

insurance was no longer accepted.

Over the following months and years, Pamela saw numerous doctors for

diagnosis and treatment of her neck condition. In just the year after she stopped

seeing Dr. Rosner, she made at least nine medical visits for various reasons and

procedures, including: an MRI in August 2001; possible treatments for vocal cord

damage stemming from Dr. Rosner’s February 2001 surgery; neurological

evaluations at multiple practices; and injections for nerve pain.

In April 2004 Domagoj Coric, M.D. performed a fusion surgery on Pamela’s

neck to address her inability to lift her head off of her chest. After that surgery did

not solve the problem, Dr. Coric performed a second operation in 2011. Pamela

passed away in September 2012; her death certificate listed non-alcohol related

kidney and liver problems as her immediate cause of death.

In June 2003, plaintiff and Pamela filed suit against Dr. Rosner; and his

medical practice, Michael J. Rosner, P.A. (defendants); and Fletcher Hospital, Inc.

d/b/a Park Ridge Hospital, Adventist Health System, and Adventist Health System

Sunbelt Healthcare Corporation (the hospital defendants). The complaint included

claims against Dr. Rosner for negligence, lack of informed consent, fraud, loss of

consortium, the value of services rendered to Pamela, and willful and wanton

conduct. The thrust of the suit was that Dr. Rosner performed unwarranted,

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unnecessary, and contraindicated experimental surgeries on Pamela and failed to

fully inform her of their novelty and risks. This case, along with twenty-four related

actions against Dr. Rosner, was designated as exceptional under Rule 2.1 of the

General Rules of Practice for the Superior and District Courts. After Pamela passed

away in 2012, plaintiff, in his capacity as administrator of her estate, was substituted

as a party plaintiff for Pamela and allowed to amend the complaint to assert claims

for wrongful death and civil conspiracy.

The case was tried in Superior Court, Henderson County, beginning on 28 July

2014 before Judge Zoro J. Guice, Jr. During the trial, Dr. Rosner offered the

testimony of several expert witnesses who suggested that Pamela could have avoided

the chin-on-chest deformity she developed as a result of Dr. Rosner’s surgeries if she

had returned specifically to him for follow-up care. For instance, Michael Seiff, M.D.

testified in pertinent part as follows:

Q. And to your knowledge, did [Pamela] follow up as
instructed with Dr. Rosner?

A. No.

Q. Had she done so, as an expert in the field of
neurosurgery, do you believe that this chin-on-chest
deformity could have been avoided with appropriate follow-
up by [Pamela] with Dr. Rosner?

A. Absolutely.

(Emphases added.) Similarly, an exchange with Konstantin Slavin, M.D. went as

follows:

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Opinion of the Court

Q. . . . [D]id you know that Pam Justus stopped going
to Dr. Rosner and was essentially -- I don’t want to say lost
in follow-up. She refused to return to Dr. Rosner following
her second operation. Were you aware of that?

A. That’s my understanding, yes.

Q. Do you believe, Doctor, had she followed up with
Dr. Rosner, that this deformity, this chin-to-chest, this
kyphosis, could have been caught earlier and remedied
earlier, had she simply been following up as she should
have?

A. That’s a definite possibility, yes.

(Emphases added.) Likewise, the examination of Donald Richardson, M.D. included

the following exchange:

Q. . . .[H]ave you, as a neurosurgeon, who’s looked at
the films, who’s looked at the records, have you formed an
opinion to a reasonable degree of medical certainty about
whether or not Pam Justus’s failure to follow up with Dr.
Rosner was a proximate cause of her development of chin-
on-chest deformity? The question is simply yes or no.

A. Yes.

(Emphasis added.)

The jury returned its verdict on 25 September 2014 finding defendants liable

for negligence and finding no liability against defendants on other grounds or against

the hospital defendants.1 On its verdict form, the jury found that Pamela had

suffered damages in the amount of $512,162.00 but that her damages should be

1 Plaintiff dismissed his individual claims during the charge conference.

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Opinion of the Court

reduced by $512,161.00 because of her “unreasonable failure . . . to avoid or minimize

her damages.” Accordingly, the trial court entered judgment in the amount of $1.00.

On 31 October 2014, plaintiff moved to alter or amend the judgment under

Rule 59 of the North Carolina Rules of Civil Procedure. Specifically, plaintiff asserted

that the jury’s finding regarding Pamela’s failure to mitigate damages was “contrary

to the greater weight of credible testimony” and “contrary to law,” and displayed “a

manifest disregard of the jury to the instructions of the [c]ourt.” Plaintiff asserted

that the principal evidence to support the mitigation finding was that Pamela did not

return to Dr. Rosner for follow-up care and that, as a matter of law, “she had no duty

to seek medical attention specifically from Dr. Rosner rather than from other health

care providers.” Plaintiff also argued that the evidence showed that Pamela

affirmatively took reasonable steps to mitigate damages by seeing numerous doctors

in the wake of Dr. Rosner’s negligent surgeries.

Following a hearing, the trial court entered an order on 3 March 2015 granting

plaintiff’s Rule 59 motion. Regarding the jury’s mitigation of damages verdict, the

court found that (1) Dr. Rosner’s expert witnesses in neurology “testified that Mrs.

Justus’ condition could have been ameliorated had she promptly sought follow-up

care from Dr. Rosner” and (2) “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.” The court further found that “[t]here was no evidence presented that Ms.

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Opinion of the Court

Justus unreasonably delayed trying to have her problems diagnosed and corrected”

and that, “[g]iven the uncontested evidence that Ms. 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.” In addition, the

court found that “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.”

In its conclusions of law, the trial court determined that “[p]atients have no

legal obligation to seek medical treatment from any particular health care provider”

and that “[t]he testimony by Dr. Rosner’s neurosurgical experts suggesting that Mrs.

Justus had a duty to return specifically to Dr. Rosner was inaccurate and misleading.”

The court also concluded that “Dr. Rosner presented no legally competent evidence

sufficient to support a finding that Mrs. Justus unreasonably failed to mitigate her

damages” and that the “jury’s $1.00 damage award is manifestly inadequate.” The

court further concluded that 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.” The court also

noted that “[e]ven aside from the lack of evidence to support any mitigation finding

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at all, the influence of passion or prejudice is further manifested in the grossly

excessive amount of the jury’s mitigation finding.”

As a result of these and other findings and conclusions, the trial court set aside

the jury’s verdict and the court’s judgment and entered an amended judgment

awarding damages in the amount of $512,162.00. The court also entered an order

awarding costs to plaintiff in the amount of $175,547.59. Defendants appealed from

the order granting the motion to alter or amend the judgment, the amended

judgment, and the order awarding costs.

At the Court of Appeals, defendants argued that the trial court erred by setting

aside the jury verdict based on the mitigation of damages issue. In the alternative,

they argued that even if the trial court did not err in granting the Rule 59 motion, it

erred by entering an amended judgment rather than granting a new trial on all

issues, including the defense of contributory negligence, upon which the trial court

had declined to instruct the jury. Defendants also argued that the trial court’s award

of costs constituted reversible error. The Court of Appeals issued a partially divided

opinion on 20 June 2017 in which the majority upheld the trial court’s decisions to

set aside the jury verdict, deny defendants’ request to instruct the jury on

contributory negligence, and award costs. Justus v. Rosner, ___ N.C. App. ___, 802

S.E.2d 142 (2017). It concluded, however, that the trial court erred by entering an

amended judgment rather than ordering a new trial. The Court of Appeals vacated

the amended judgment and remanded for a new trial on damages. The dissent agreed

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with the majority that the trial court properly refused to deliver a contributory

negligence instruction and that, once it decided to set aside the verdict, the trial court

should have ordered a new trial rather than entering an amended judgment; however,

the dissenting judge disagreed that the trial court had sufficient grounds to set aside

the verdict or enter its order of costs. Defendants filed a notice of appeal to this Court

based on the dissent. We also allowed defendants’ petition for discretionary review

on the issues of contributory negligence and whether the new trial should again

address defendants’ liability for Pamela’s injuries, rather than being confined only to

the issue of damages.

II. ANALYSIS

A. Rule 59

In their appeal based on the dissenting opinion, defendants contend that the

Court of Appeals majority erred by upholding the trial court’s decision to grant

plaintiff’s motion to set aside the jury verdict under Rule 59(a). Although the trial

court and the Court of Appeals touched upon a number of potential grounds for

setting aside the verdict, we need only conclude that one ground supports the trial

court’s decision to grant relief pursuant to Rule 59 in order to affirm that ruling. Rule

59 states, in part, that “[a] new trial may be granted to all or any of the parties and

on all or part of the issues” based upon, among other grounds, “[i]nsufficiency of the

evidence to justify the verdict or that the verdict is contrary to law.” N.C. R. Civ. P.

59(a)(7). Here the trial court concluded that “Dr. Rosner presented no legally

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competent evidence sufficient to support a finding that Mrs. Justus unreasonably

failed to mitigate her damages,” that “[t]he jury’s $1.00 damage award is manifestly

inadequate,” and that “the influence of passion or prejudice is further manifested in

the grossly excessive amount of the jury’s mitigation finding,” which falls within Rule

59(a)(7)’s ground of “[i]nsufficiency of the evidence to justify the verdict.”

“[A] motion for a new trial for insufficiency of the evidence pursuant to Rule

59(a)(7) is addressed to the discretion of the trial court.” In re Will of Buck, 350 N.C.

621, 624, 516 S.E.2d 858, 860 (1999) (citing Bryant v. Nationwide Mut. Fire Ins. Co.,

313 N.C. 362, 380-81, 329 S.E.2d 333, 343-44 (1985)); see also Worthington v. Bynum,

305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982) (plurality opinion) (“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 a manifest abuse of discretion by the judge.” (citing

Goldston v. Chambers, 272 N.C. 53, 59, 157 S.E.2d 676, 680 (1967))). Accordingly, “in

the absence of an abuse of discretion, a trial court’s ruling on a motion for a new trial

due to the insufficiency of evidence is not reversible on appeal.” In re Buck, 350 N.C.

at 624, 516 S.E.2d at 860.

We have explained that in the Rule 59(a)(7) context, the phrase “ ‘insufficiency

of the evidence’ means that the verdict ‘was against the greater weight of the

evidence.’ ” Id. at 624, 516 S.E.2d at 860 (quoting Nationwide Mut. Ins. Co. v.

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Chantos, 298 N.C. 246, 252, 258 S.E.2d 334, 338 (1979)). Therefore, “[t]he trial court

has discretionary authority to appraise the evidence and to ‘order a new trial

whenever in [its] opinion the verdict is contrary to the greater weight of the credible

testimony.’ ” Id. at 624-25, 516 S.E.2d at 860 (quoting Britt v. Allen, 291 N.C. 630,

634, 231 S.E.2d 607, 611 (1977)). Finally, in applying the abuse of discretion

standard, “[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.” Id. at 625, 516 S.E.2d at

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

(emphasis added)).

Here, the trial court’s order granting plaintiff’s Rule 59 motion included the

following findings of fact:

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

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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 Ms. 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 Ms. 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.

The trial court’s conclusions of law included the following:

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

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unreasonably failed to mitigate her damages.

The Court of Appeals majority held 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.” Justus, ___ N.C. App. at ___, 802 S.E.2d

at 151. We agree.

Regarding a plaintiff’s duty to mitigate damages,

[t]he rule in North Carolina is that an injured
plaintiff, whether h[er] case be tort or contract, must
exercise reasonable care and diligence to avoid or lessen
the consequences of the defendant’s wrong. If [s]he fails to
do so, for any part of the loss incident to such failure, no
recovery can be had. This rule is known as the doctrine of
avoidable consequences or the duty to minimize damages.
Failure to minimize damages does not bar the remedy; it
goes only to the amount of damages recoverable.

Miller v. Miller, 273 N.C. 228, 239, 160 S.E.2d 65, 73-74 (1968) (first citing Johnson

v. Atl. Coast Line R.R., Co., 184 N.C. 101, 113 S.E. 606 (1922); and then citing 22 Am.

Jur. 2d Damages §§ 30-32 (1965)).

In their brief to this Court, defendants challenge the trial court’s determination

that the jury’s finding that Pamela failed to mitigate all but $1.00 in damages

resulted from the impression created by defendants’ experts that Pamela’s damages

were principally caused by her failure to return specifically to Dr. Rosner for follow-

up care after the second surgery he performed on her. As the excerpts from the expert

testimonies set forth above show, however, there was evidence at trial to support the

trial court’s finding that defendants’ experts created the impression that Pamela had

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a duty to return to Dr. Rosner in particular and that this impression influenced the

jury’s decision to award only nominal damages.2

Moreover, defendants do not argue that a patient’s failure to seek additional

treatment from the doctor who provided negligent medical care to her—care which

caused or contributed to the very harm the patient needed to mitigate—constitutes a

failure to mitigate damages. Defendants do not dispute that a plaintiff is required

only to “exercise reasonable care and diligence to avoid or lessen the consequences of

the defendant’s wrong.” Miller, 273 N.C. at 239, 160 S.E.2d at 74. We have already

noted that the evidence showed that, after leaving Dr. Rosner’s care, Pamela did seek

and obtain further medical care from a variety of other medical professionals,

including undergoing an MRI on 17 August 2001—the same diagnostic test

recommended to Pamela by Dr. Rosner’s physician’s assistant during the 29 May

2001 phone call.

The jury’s determination of “failure . . . to minimize damages” is further

undermined by the evidence that much of the pain and suffering Pamela experienced

2 Defendants find “particularly troublesome” that in Finding No. 8 the trial court
characterized the “demeanor” of defendants’ experts as contributing to an impression that
Pamela had an obligation to return specifically to Dr. Rosner and that she allowed her
condition to worsen by failing to do so. This challenge to the trial court’s discussion of
demeanor is unpersuasive because one of the very reasons we apply an abuse of discretion
standard to a trial court’s ruling on a Rule 59 motion is that the trial judge is present at trial
and is thus in the best position to assess the impact of witnesses’ testimony on the jury. See
In re Buck, 350 N.C. at 628, 516 S.E.2d at 863 (“Only the trial court has directly observed the
evidence as it was presented and the attendant circumstances, as well as the demeanor and
characteristics of the witnesses.” (emphasis added)).

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as a result of Dr. Rosner’s negligent surgeries occurred before she would have had the

opportunity to mitigate damages. Even so, the jury found that she completely failed

to mitigate damages except for $1.00.

Given this evidence, we cannot say that the trial court’s decision to set aside

the jury’s verdict was an abuse of discretion because we are not “convinced by the cold

record that the trial judge’s ruling probably amounted to a substantial miscarriage of

justice.” In re Buck, 350 N.C. at 625, 516 S.E.2d at 861 (quoting Anderson, 345 N.C.

at 483, 480 S.E.2d at 663)). As we have reiterated over the years,

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 [of] a new trial. Due to their active participation
in the trial, their first-hand acquaintance with the evidence
presented, their observa[tions] 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.

Id. at 626, 516 S.E.2d at 861 (quoting Worthington, 305 N.C. at 487, 290 S.E.2d at

605). The trial court here was in the best position to determine whether the jury’s

verdict on mitigation of damages went against the greater weight of the evidence,

including whether the jurors were affected by the experts’ suggestion that Pamela’s

failure to return specifically to Dr. Rosner caused her health to deteriorate.

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Accordingly, we affirm the Court of Appeals majority’s conclusion that the trial court

did not abuse its discretion in setting aside the verdict based on Rule 59(a)(7).3

B. Costs

In the second issue in their appeal based on the dissenting opinion, defendants

argue that the Court of Appeals majority erred by affirming the trial court’s

assessment of $175,547.59 in costs against them. Defendants contend that the trial

court lacked authority to assess expert witness costs for experts whose testimony

concerned the hospital defendants—which the jury did not find liable—rather than

Dr. Rosner.

“In 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 set forth in G.S.

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

N.C.G.S. § 6-20 (2017). N.C.G.S. 7A-305(d) states in pertinent part:

(d) The 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.

....

3Like the Court of Appeals majority, we decline to address the appropriateness of
awarding relief under other subsections of Rule 59.

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(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.

Id. § 7A-305(d) (2017). Although the assessment of costs is generally within the

discretion of the trial court, see id. § 6-20, “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.” Lassiter ex rel. Baize v. N.C. Baptist

Hosps., Inc., 368 N.C. 367, 375, 778 S.E.2d 68, 73 (2015) (citation omitted).

Here plaintiff requested various costs from defendants, including $89,789.84

for depositions, $85,757.75 for experts at trial, and $458,089.30 for “additional expert

witness fees.” The trial court ordered that defendants pay plaintiff a lump sum of

$175,547.59, which totals the costs requested for depositions and experts’ trial

testimony.

Defendants contend that this assessment was improper because it included

fees connected to the trial testimonies of experts—Drs. Arthur Caplan, Brian Currie,

and David Barton Smith—who testified against the hospital defendants rather than

against Dr. Rosner. That is, defendants argue, the testimonies of these medical

experts cannot support an award of costs against defendants because “[e]ach of these

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experts expressly did not offer criticisms of Dr. Rosner and, instead, limited their

testimony to criticisms of the Hospital Defendants, whom the jury found not liable.”

The Court of Appeals rejected this argument, concluding that “defendant

[Rosner] fails to establish that ordering payment of these expert fees was an abuse of

discretion,” Justus, ___ N.C. App. at ___, 802 S.E.2d at 156 (citation omitted). The

dissent, however, rejected both the majority’s result as well as the abuse of discretion

standard of review it employed. The dissent stated that the question of which experts’

trial testimony could support the assessment of costs against defendants is a legal

question because it “hinges upon the extent to which the trial court properly

interpreted the applicable statutory provisions . . . , which is subject to de novo

review.” Id. at ___, 802 S.E.2d at 160 (Tyson, J., concurring in part and dissenting in

part) (quoting Lassiter ex rel. Baize, 368 N.C. at 375, 778 S.E.2d at 73). The dissent

then concluded that “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[s], which were acquitted by the

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

Id. at ___, 802 S.E.2d at 160.

These experts’ testimonies did, however, address issues relating to Dr. Rosner

in addition to the hospital defendants. For instance, both Dr. Caplan and Dr. Smith

testified that Dr. Rosner’s surgeries were experimental, which was one aspect of the

negligence claim against him. And Dr. Currie testified to another aspect of Dr.

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Rosner’s alleged negligence in that he allowed the hospital to market his services

inaccurately. Given that the testimonies of these experts did bear to some extent

upon issues concerning Dr. Rosner’s negligence, we do not face the statutory

construction issue defendants assert is present.

Accordingly, rather than applying de novo review, the only question here is

whether the trial court abused its discretion in its award of costs. As plaintiff

observes, the total award of $175,547.59 corresponds to the costs itemized in

plaintiff’s motion for the stenographic and videographic costs of taking depositions

($89,789.84) and the expert fees incurred to provide trial testimony ($85,757.75), both

categories of costs allowable under statute. See N.C.G.S. § 7A-305(d)(10)

(“Reasonable and necessary expenses for stenographic and videographic assistance

directly related to the taking of depositions and for the cost of deposition

transcripts.”); Id. § 7A-305(d)(11) (“Reasonable and necessary fees of expert witnesses

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

proceedings.”). We cannot conclude that the trial court abused its discretion in its

award of costs and we therefore affirm the Court of Appeals on this issue.

Defendants’ remaining arguments are based upon our allowing their petition

for discretionary review on the following issues:

ADDITIONAL AND ALTERNATIVE ISSUES TO BE
BRIEFED

I. The trial court erroneously granted directed verdict
against Defendants-Appellants on their

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Opinion of the Court

contributory negligence defense where the evidence
showed Ms. Justus’ medical problems including
kyphosis were caused by her failure to follow
medical advice and continue a course of treatment or
seek treatment for worsening symptoms.

II. The Court of Appeals erroneously granted Plaintiff
a partial new trial on the sole issue of damages
where: (A) Plaintiff did not challenge the jury’s
damage calculation; and (B) Plaintiff’s efforts to
overturn the jury verdict implicated the entire
verdict requiring a new trial on both liability and
damages.

The dissenting opinion of the Court of Appeals, on which the Notice of Appeal was

based, concurred with the majority’s holding that the trial court did not err in

granting directed verdict on contributory negligence; that issue is raised by Issue I

above in defendants’ petition for discretionary review. As to this issue, we now

conclude that discretionary review was improvidently allowed.

In their argument in support of Issue II above, defendants contend that the

Court of Appeals erroneously remanded for a new trial on damages only. The

dissenting opinion specifically agreed with the majority’s conclusion that the trial

court erred in altering the amount of damages to be awarded. The dissenting opinion,

however, did not address the following portion of the majority opinion:

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.

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Opinion of the Court

Justus, ___ N.C. App. at ___, 802 S.E.2d at 153.

As to the second issue in defendant’s petition for discretionary review, we

conclude that the Court of Appeals was within its authority to vacate the trial court’s

amended judgment and order that a new trial be held with respect to the issue of

damages. In seeking relief from the original judgment, plaintiff relied upon N.C.G.S.

§ 1A-1, Rule 59(a), which authorizes a trial judge to grant “[a] new trial” “to all or any

of the parties and on all or part of the issues” for a number of different reasons. For

the reasons stated by the Court of Appeals, we conclude that the trial court erred by

simply striking the jury’s mitigation determination and entering judgment in favor

of plaintiff and against defendant in the amount of the jury’s damages award. Bethea

v. Town of Kenly, 261 N.C. 730, 732, 136 S.E.2d 38, 40 (1964) (per curiam) (holding

that, while “the judge should have set aside the verdict . . . if he deemed it against

the weight of the evidence or considered the damages excessive,” instead, “he

attempted to change the verdict, . . . and this he could not do” (citing Winn v. C.W.

Finch & Son, 171 N.C. 272, 277, 88 S.E. 332, 334-35 (1916))). Moreover, we see no

reason why the Court of Appeals was required to remand this case to the trial court

for a determination either of whether relief should be granted at all or whether to

grant a full or partial new trial.

While we are unaware of any decision of this Court involving a fact pattern

identical to the unusual one here, even a cursory examination of the record reveals

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Opinion of the Court

that the trial court determined that plaintiff was entitled to relief from what the jury

did when it greatly reduced the damages awarded due to Pamela’s alleged failure to

mitigate. Furthermore, the plain language of N.C.G.S. § 1A-1, Rule 59(a) states

explicitly that, once that determination had been made, the only relief that the trial

court may award to plaintiff is a new trial. Because this one and only remedy was

available to the trial court, and because the trial court’s substantive decision that

plaintiff was entitled to relief from the jury’s original verdict has not been disturbed

on appeal, we see no reason why this case should be remanded to the trial court to

choose between awarding plaintiff a new trial or denying plaintiff any relief from the

jury’s verdict at all.4 As a result, given that the trial court has already decided that

4 Although we have stated on many occasions that, “[w]here a ruling is based upon a
misapprehension of the applicable law, the cause will be remanded in order that the matter
may be considered in its true legal light,” Nationwide Mut. Ins. Co. v. Chantos, 298 N.C. 246,
252, 258 S.E.2d 334, 338 (1979) (citing 1 Strong’s North Carolina Index 3d: Appeal and Error
§ 63), we do not believe that this principle has any bearing upon the proper resolution of this
issue. Instead, the “misapprehension” rule has typically been applied to require the
remanding of trial court decisions concerning issues in which either the exercise of discretion
was appropriate, Wilson v. McLeod Oil Co., 327 N.C. 491, 523, 398 S.E.2d 586, 603 (1990)
(overturning a trial court’s decision to deny a motion for leave to amend a complaint to add
an additional third-party defendant based upon the mistaken belief that none of the claims
asserted in the plaintiffs’ original complaint survived the defendants’ summary judgment
motion); Chantos, 298 N.C. at 251-52, 258 S.E.2d at 337-38 (overturning a trial court’s refusal
to set aside the verdict as against the greater weight of the evidence based upon the mistaken
belief that this Court had determined that the issue in question could only be resolved by a
jury), or to resolve a disputed issue of substantive law in light of the relevant facts, Hanford
v. McSwain, 230 N.C. 229, 233-34, 53 S.E.2d 84, 87-88 (1949) (overturning a trial court
decision denying a defendant’s request for relief from a judgment because the defendant had
failed to show the existence of a meritorious defense when the defendant had, in fact,
demonstrated the potential existence of such a defense); McGill v. Town of Lumberton, 215
N.C. 752, 754, 3 S.E.2d 324, 326 (1939) (overturning an Industrial Commission decision to
deny an application for workers’ compensation benefits on the grounds that the Commission

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Opinion of the Court

relief should be afforded to plaintiff and given that the trial court’s only option was

to award a new trial in whole or in part in the event of such a determination, we

conclude that the Court of Appeals had ample authority to order implementation of

the relief that could be properly afforded to plaintiff on remand.

In addition, we conclude that the Court of Appeals did not err by awarding

plaintiff a new trial on the issue of damages only. This Court has previously held

that, in the event that a reviewing court determines that a trial court has erred ruling

on a motion made pursuant to N.C.G.S. § 1A-1, Rule 59(a), the reviewing court has

the authority to determine the scope of the new trial that should be awarded even

though the trial court did not address that issue. Robertson v. Stanley, 285 N.C. 561,

568, 206 S.E.2d 190, 195 (1974) (overturning the trial court’s decision to deny the

plaintiff’s motion for a partial new trial predicated upon an inconsistent jury verdict

and ordering a full new trial on the grounds that “[i]t is settled beyond controversy

that it is entirely discretionary with the Court, Superior or Supreme, whether it will

grant a partial new trial” (quoting Table Rock Lumber Co. v. Branch, 158 N.C. 251,

253, 73 S.E. 164, 165 (1911))). In addition, we are not persuaded that “the error in

assessing damages tainted the entire verdict,” making it “unfair to the defendant to

order a partial new trial on the issue of damages alone.” Id. at 569, 206 S.E.2d at

had failed to recognize the existence of a presumption that a compensable injury had occurred
when the employee suffered a violent death). As a result of the fact that the trial court had
no authority to grant any relief aside from a new trial, the “misapprehension” principle
simply does not apply here.

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Opinion of the Court

196. Unlike in Robertson, the jury here did not find, in essence, that a minor plaintiff

who might or might not have been contributorily negligent and who suffered injuries

that resulted in $1,970.00 in medical expenses was entitled to no compensatory

damages at all. Instead, the jury here was properly instructed to determine the

amount of damages that plaintiff was entitled to recover only after having resolved

the issue of liability. Housing, Inc. v. Weaver, 305 N.C. 428, 443, 290 S.E.2d 642, 651

(1982) (noting, in upholding the trial court’s decision to award a partial new trial on

the issue of damages, that when the case was initially tried, “[t]he jurors were

instructed further specifically to answer the question of liability before considering

the issue of the amount of damages”). The jury then reduced the amount of damages

awarded to plaintiff by what the trial court believed to have been an unjustified

finding of “failure to mitigate” based upon a misapprehension of the steps plaintiff

was required to take to properly mitigate her damages. Despite the fact that the jury

did not specify the theory upon which it found defendants to have been negligent, the

record contains no indication that the applicable measure of damages would have

varied depending upon the theory of liability that the jury found to have merit.

Weyerhaeuser Co. v. Godwin Bldg. Supply Co., 292 N.C. 557, 564, 234 S.E.2d 605, 609

(1977) (requiring a full new trial, rather than a partial new trial on the issues of

damages alone, on the grounds that “it is impossible for us to determine upon what

theory the jury relied in finding a breach [of contract] and whether the different

theories of breach would have resulted in different measures of damages”). The trial

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Opinion of the Court

court clearly did not believe that the jury’s verdict with respect to the mitigation issue

tainted its verdict on the liability issue, since it simply struck the jury’s mitigation

verdict without in any way disturbing the liability verdict. We see no reason to

second-guess that determination or the Court of Appeals’ decision to implement that

determination in the proper manner. As a result, even though the $1.00 difference

between the amount of the jury’s damage award and the amount of the “failure to

mitigate” offset that the jury deemed to be appropriate appears to be anomalous,

nothing in the record persuades us that this anomaly stemmed from a compromise

involving the issue of liability rather than the jury’s acceptance of the argument that

the trial court found to have been erroneously advanced by defendants’ expert

witnesses—specifically, that Pamela failed to properly mitigate her damages because

she did not return to defendant Rosner for further treatment. Therefore, in light of

the unusual facts disclosed by the record here, we cannot say that the Court of

Appeals erred by awarding a partial, rather than a full, new trial in this case.

III. CONCLUSION

For the foregoing reasons, we affirm the decision of the Court of Appeals to

vacate the trial court’s amended judgment and order a new trial with respect to the

issue of damages and remand this case to that court for further remand to the

Superior Court, Henderson County, for retrial. Moreover, we affirm the decision of

the Court of Appeals on the issue of costs. As for Issue I in defendants’ petition for

discretionary review, we conclude that discretionary review was improvidently

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Opinion of the Court

allowed; accordingly, the Court of Appeals’ disposition of this issue remains

undisturbed. As for Issue II in defendants’ petition for discretionary review, we

affirm for the reasons discussed here.

AFFIRMED IN PART AND REMANDED; DISCRETIONARY REVIEW

IMPROVIDENTLY ALLOWED IN PART.

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 Chief Justice MARTIN concurring in part and dissenting in part.

I agree with the majority that the trial court did not abuse its discretion when

it determined that plaintiff was entitled to some form of relief under North Carolina

Rule of Civil Procedure 59(a)(7).1 I also agree with the majority, as well as both

parties and the dissent, that the relief that the trial court ordered was not permitted

under Rule 59 and that only a new trial, in whole or in part, could have been granted.

I do not agree with the majority, however, that either we or the Court of Appeals

should usurp the critical role of the trial court under Rule 59 and determine what

parts of a new trial are justified in this complex medical malpractice case based on

the cold appellate record. In my view, once a trial court appropriately decides to grant

a new trial, Rule 59 leaves the trial court in the best position to determine the scope

of that new trial. See N.C. R. Civ. P. 59(a) (“A new trial may be granted to all or any

of the parties and on all or part of the issues”) (emphasis added). Once the Court of

Appeals determined that the trial court misapprehended the law in this case by

choosing relief that cannot be granted after a jury trial under Rule 59, it would uphold

best practices for the Court of Appeals (and this Court) to remand the case for

reconsideration under the proper legal standard.

1 Rule 59 provides that a new trial may be granted on several grounds, including the
“[i]nsufficiency of the evidence to justify the verdict or [when] the verdict is contrary to
law.” N.C. R. Civ. P. 59(a)(7).
 JUSTUS V. ROSNER

Martin, C.J., concurring in part and dissenting in part

In this case, after a jury verdict, plaintiff filed a motion under Rule 59 seeking

an amended judgment or, in the alternative, a new trial on the issue of damages. The

trial court granted the motion and amended the judgment, rather than granting a

new trial. But, as the Court of Appeals properly held and no party challenges here,

the trial court misapprehended the applicable law when it amended the judgment.

See Justus v. Rosner, ___ N.C. App. ___, ___, 802 S.E.2d 142, 152 (2017). While Rule

59 establishes grounds that allow a trial court to grant a new trial “on all or part of

the issues,” Rule 59 does not let the court “direct the entry of a new judgment” after

a verdict by a jury. See N.C. R. Civ. P. 59(a). The rule allows entry of a new judgment

only “in an action tried without a jury.” See id. (emphasis added).

When this Court (or any court acting as an appellate court) finds that a trial

court’s ruling on a motion is based on a misapprehension of law, that ruling should

be vacated or reversed and the case should be remanded to the trial court to decide

the motion according to a proper understanding of the law. See Concerned Citizens

of Brunswick Cty. Taxpayers Ass’n v. State ex rel. Rhodes, 329 N.C. 37, 54-55, 404

S.E.2d 677, 688 (1991) (“When the order or judgment appealed from was entered

under a misapprehension of the applicable law, the judgment, including the findings

of fact and conclusions of law on which the judgment was based, will be vacated and

the case remanded for further proceedings.”). We have applied this rule, for instance,

when a trial court misapprehended one factor in a multi-factor test, which, in effect,

led the trial court to apply the wrong legal rule, see Concerned Citizens, 329 N.C. at

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 JUSTUS V. ROSNER

Martin, C.J., concurring in part and dissenting in part

45-46, 404 S.E.2d at 682-83; when a trial court denied, under a misapprehension of

law, a motion to terminate a requirement to register as a sex offender, see State v.

Moir, 369 N.C. 370, 389-90, 794 S.E.2d 685, 698-99 (2016); when a trial court

necessarily applied an incorrect articulation of the law of judicial estoppel, see

Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 38, 591 S.E.2d 870, 894 (2004); and

when a trial court mistakenly concluded that it had no discretion to extend the time

for service of a summons, Lemons v. Old Hickory Council, Boy Scouts of Am., Inc., 322

N.C. 271, 277, 367 S.E.2d 655, 658 (1988). I see no compelling reason for us to depart

from this rule here.2

Here, after a jury verdict in a complex medical malpractice trial, the trial court

found that Rule 59 relief was warranted, but then amended the judgment—a form of

relief that Rule 59 does not permit after a jury trial. In doing so, the trial court

misapprehended the law as to what relief Rule 59 would allow in this case. Because,

here, the trial court only had the discretion to order “[a] new trial . . . on all or part of

2 Although this Court has previously stated that “[i]t is settled beyond controversy
that it is entirely discretionary with the Court, Superior or Supreme, whether it will grant
a partial new trial,” Robertson v. Stanley, 285 N.C. 561, 568, 206 S.E.2d 190, 195 (1974)
(quoting Table Rock Lumber Co. v. Branch, 158 N.C. 251, 253, 73 S.E. 164, 165 (1911)), I
am skeptical of the application of Rule 59 discretionary authority here. No one can
seriously dispute that the trial court is in the best institutional position to exercise the type
of discretionary authority envisioned by Rule 59(a). Moreover, I do not see how the
majority can possibly ensure, in its order for a partial new trial on damages only based on
this cold record, that “no possible injustice can be done to either party.” Id. Finally, even a
casual observer would quickly discern that Robertson relies on Table Rock, a case that
precedes both the state and federal rules of civil procedure.

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 JUSTUS V. ROSNER

Martin, C.J., concurring in part and dissenting in part

the issues,” N.C. R. Civ. P. 59(a), we should remand this case to the trial court so that

the trial court may determine which issue(s) require a new trial. In this case, that

means the trial court should determine if the new trial should address liability,

damages, mitigation, or some combination of these and the myriad other issues

decided by the jury. As appellate courts, both we and the Court of Appeals should be

mindful of our appellate role, which in this instance means exercising restraint and

reviewing the trial court’s discretionary decision under Rule 59. In doing so, we can

identify that the trial court ordered impermissible relief under Rule 59 and that the

only permissible relief in this case would have been a new trial, in whole or in part.

But we should not then substitute our own discretion—or encourage the Court of

Appeals to do so—to determine, in the first instance, the scope of the new trial.

This standard of appellate review is not just more consistent with our

institutional role as an appellate court. It also squares with the reason that appellate

courts generally review Rule 59 orders for abuse of discretion instead of de novo—

namely, that the trial court is better positioned to exercise the discretion that this

standard of review vests in it. We have previously held that determining if a verdict

has “been given under the influence of passion or prejudice,” N.C. R. Civ. P. 59(a)(6),

requires more than interpreting a cold record. It requires a complete understanding

of the nuances and subtleties of the entire proceeding—something which is only

available to the judicial officer who presided over the trial. See Worthington v.

Bynum, 305 N.C. 478, 487, 290 S.E.2d 599, 605 (1982) (plurality opinion) (recognizing

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 JUSTUS V. ROSNER

Martin, C.J., concurring in part and dissenting in part

that “[d]ue 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”). Similar reasoning applies to other grounds listed in Rule 59.

For example, the trial judge who evaluated the evidence when crafting jury

instructions is in the best position to determine if there was “[m]anifest disregard by

the jury of the instructions of the court.” N.C. R. Civ. P. 59(a)(5).

The same logic applies to determining the scope of relief to be granted under

Rule 59(a). Once the trial court determines that one or more of the grounds for relief

under Rule 59(a) have been shown, it uses the knowledge and experience gained from

its unique vantage point to fashion an appropriate form of relief. The trial court may

have to determine, for example, which issues were infected by problematic evidence.

That determination would affect the proper scope of the new trial—whether it needed

to cover damages, liability, mitigation, or some combination of issues. In other words,

because the scope of the relief to be granted under Rule 59 is so closely linked to the

decision to grant Rule 59 relief, it is generally best for the trial judge to decide both

questions in the first instance, and for those decisions to then be reviewed only for

abuse of discretion. Cf. Worthington, 305 N.C. at 487, 290 S.E.2d at 605 (“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

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 JUSTUS V. ROSNER

Martin, C.J., concurring in part and dissenting in part

necessity for a new trial.”). This is especially true in this case, where the trial court

has found multiple grounds for relief under Rule 59(a), while we only consider the

legal sufficiency of one.

Admittedly, no party has raised the issue of whether an appellate court should

substitute its own discretion to determine the scope of a new trial under a Rule 59

motion in this case. That is not surprising. The parties in this case want the issue

to be decided in their favor; they likely care little, if they care at all, about which court

decides the issue. But, as this State’s appellate court of last resort, we should care

about the role of the trial courts and their “ ‘institutional advantages’ over appellate

courts in the ‘application of facts to fact-dependent legal standards.’ ” Whitacre

P’ship, 358 N.C. at 38, 591 S.E.2d at 894 (quoting Augur v. Augur, 356 N.C. 582, 586,

573 S.E.2d 125, 129 (2002)). Otherwise, we leave it to parties appearing before us to

determine the scope of appellate remedial authority as they alone see fit. Put simply,

we should be vigilant to protect the salutary practice of allowing our trial courts to

make this type of discretionary decision under Rule 59 in the first instance.

We should not depart from our customary appellate role here. Now that we

have corrected the trial court’s misapprehension of law, it would be best to let that

court exercise its discretion within its proper bounds—discretion that would, of

course, be subject to appellate review in the ordinary course for abuse of discretion.

I therefore concur in part and dissent in part from the majority opinion.

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 JUSTUS V. ROSNER

Martin, C.J., concurring in part and dissenting in part

Justice JACKSON joins in this opinion.

-7-
 Justice NEWBY dissenting.

Jury trials constitute the bedrock of our common law system. Since 1776 our

state constitutions have safeguarded the right to a trial by jury. Thus, trial courts

have always given great deference to juries’ decisions. Only in limited, rare

circumstances will courts invade the province of the jury. We afford particular

deference to juries when cases have been fairly and fully litigated and a verdict is

returned in the form of a general finding, not referencing any particular theory of

liability or damages on which the jury made its determination. When the trial court

takes the unusual step of overturning a jury’s verdict, it must do so in a well-reasoned,

legally sound manner. If the court proceeds under a misapprehension of law, the role

of the appellate court is to correct the error and then return the matter to the trial

court to proceed again, this time with the correct legal basis.

In this case, over the course of a two-month trial, the jury considered a complex

medical malpractice case involving several parties. The jury heard multiple expert

witnesses testify about numerous questions of liability and damages. In its

instructions, based on the evidence, the trial court presented the jury with fifteen

theories of negligence against defendant Rosner as well as an instruction to consider

plaintiff’s legal duty to mitigate her damages. Though the jury found defendant

Rosner negligent, it did not specify upon which of those theories it relied. Despite the

finding of negligence, the jury significantly reduced the damages awarded to plaintiff,

concluding plaintiff failed to mitigate her damages. During this lengthy trial,
 JUSTUS V. ROSNER

Newby, J., dissenting

plaintiff did not object to the mitigation evidence. Moreover, plaintiff furnished the

language generally used for the trial court’s jury instruction on mitigation. After the

jury issued the verdict, plaintiff asked the trial court to modify the amount of

damages. The trial court, laboring under a misapprehension of law, revised the

damages awarded to plaintiff. Indisputably, this revision was error. Upon review

the Court of Appeals should have accurately set forth the law and remanded the case

to the trial court to make an informed post-trial determination; instead, the appellate

court assumed the role of the trial court and crafted a different remedy for plaintiff:

a new trial solely on damages. With little analysis, the majority now compounds this

error by giving unwarranted deference to the Court of Appeals’ decision to grant a

new trial solely on damages despite the findings by the trial court which support a

completely new trial. Because I believe these actions constitute an improper invasion

of the roles of the jury and the trial court, I dissent.

On 12 June 2003, three years after her first surgery, plaintiff1 filed a complaint

against defendant Rosner, his medical practice, Michael J. Rosner, M.D., P.A.,2

Fletcher Hospital, Inc. d/b/a Park Ridge Hospital, Adventist Health System, and

1 Though plaintiff Pamela Justus initiated the action and underwent the surgeries at
issue, after her death during the pendency of litigation, the administrator of her estate was
substituted as plaintiff in this action. For simplicity, the term “plaintiff” encompasses both
and should be read in context.
2For simplicity, defendant Michael J. Rosner, M.D. and his medical practice Michael
J. Rosner, M.D., P.A. are referred to as “defendant Rosner” throughout.

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 JUSTUS V. ROSNER

Newby, J., dissenting

Adventist Health System Sunbelt Healthcare Corporation. The complaint included

claims for negligence, lack of informed consent, fraud, loss of consortium, and willful

and wanton conduct. Plaintiff later amended the complaint to include claims for

conspiracy and wrongful death. Plaintiff advanced fifteen theories of how defendant

Rosner was negligent, which included performing unnecessary and medically

unsound procedures, failing to obtain informed consent and adequately inform

plaintiff of the nature of the surgical procedures, misleading plaintiff about her

condition and the necessity of the procedures, and conspiring with the hospital to

dishonestly market the surgical procedures at issue. Plaintiff contended that the

hospital defendants were similarly negligent in failing to monitor these procedures

or take actions to prevent them, that the hospital defendants knew or should have

known Rosner was performing unnecessary surgeries, and that all defendants

conspired, inter alia, to promote their reputations and enhance their profits from

these procedures.

During the almost two-month trial in August and September 2014, defendant

Rosner presented evidence that the surgeries were necessary and in line with the

standard of care for neurosurgeons in the community, and that plaintiff knew and

consented to the procedures despite the commonly known risks associated with them.

Throughout trial defendant Rosner introduced evidence of plaintiff’s failure to

mitigate damages, including plaintiff’s failure to seek appropriate follow-up

treatment, failure to properly address her pre-existing and ongoing health issues, and

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Newby, J., dissenting

her continued smoking before surgery and post surgery.3 While various witnesses

indicated that plaintiff’s conditions worsened when she did not follow up with Rosner,

defendant presented a plethora of evidence about plaintiff’s general failure to pursue

proper care in a timely manner.4

For example, on recross-examination, one of defendant’s expert witnesses

testified, “So the fact that [plaintiff’s deformity] 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.” Another one of defendant’s expert witnesses testified on cross-

examination that he believed that plaintiff was not injured by the surgeries, which

actually helped an ongoing condition, but that plaintiff “had a progressive descending

spiral . . . and didn’t get any care” for her slowly declining condition. A third expert

testified on direct examination that, had plaintiff received physical therapy and worn

3 The allegations that plaintiff failed to mitigate her damages primarily related to
plaintiff’s injury arising from her inability to support her head, i.e., kyphosis or chin-on-chest
deformity that developed post surgery, and involved whether plaintiff delayed seeking
appropriate and timely preventative treatment after her procedures.
4 The majority opinion states that plaintiff “saw numerous doctors for diagnosis and
treatment of her neck condition” following her surgeries. Most of these appointments with
pain doctors, however, only addressed plaintiff’s symptoms. The record reflects plaintiff’s
being seen at Wake Forest Baptist and Duke University Hospitals during the critical period
after she left Rosner’s care, but plaintiff did not properly follow up with either.

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 JUSTUS V. ROSNER

Newby, J., dissenting

a neck brace, her condition “could have been avoided probably.” Over the course of

this multi-week trial, plaintiff’s counsel did not object to any of the failure to mitigate

evidence as misleading, and the trial court did not intervene.

At the jury charge conference, defendant argued that sufficient evidence

existed to show plaintiff was contributorily negligent. While plaintiff’s counsel

objected to any proposed instruction on contributory negligence, plaintiff’s counsel

gave extensive input on the mitigation instructions and jury verdict form. Several

times, plaintiff’s counsel requested to add language to the jury instruction referencing

the reasonableness of plaintiff’s failure to follow up specifically with Dr. Rosner. The

trial court agreed to give a modified version of the mitigation instruction requested

by plaintiff, instructing the jury on the nature of plaintiff’s duty to mitigate damages.

After the charge conference, the trial court instructed the jury, inter alia, that

it must determine whether defendant Rosner was negligent. In doing so, the trial

court submitted fifteen theories on which the jury could find defendant liable,

instructing the jury that it could find defendant liable if it determined that defendant:

1: Performed unnecessary surgery on Pamela
Justus;

2: Performed surgery on Pam Justus which was not
medically indicated by imaging studies;

3: Performed surgery on Pam Justus which was not
medically indicated by clinical signs and symptoms;

4: Performed surgery on Pam Justus without first
obtaining adequate informed consent;

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 JUSTUS V. ROSNER

Newby, J., dissenting

5: Misleading Pam Justus as to her condition
regarding radiographic information;

6: Obtained Pam Justus’s consent to surgery by
misrepresenting that the surgery was necessary;

7: Fraudulently induced Pam Justus to undergo
surgery that was not medically indicated;

8: Performed experimental surgery on Pam Justus;

9: Performed surgery on Pam Justus without
adequate peer review and/or oversight;

10: Performed traditional surgery on Pam Justus
for nontraditional reasons;

11: Performed surgeries on Pam Justus for
conditions not treatable by surgery;

12: Failed to apply evidence-based medicine in
treating Pam Justus;

13: By allowing the Hospital to dishonestly market
his surgeries;

14: Conspired with the Hospital defendants to
perform medically unnecessary surgeries on Pam Justus
and others similarly situated at Park Ridge Hospital;

And 15: Failed to assure that Pam Justus was
aware of the controversial nature of the diagnosis claimed
by Dr. Rosner as a reason for such surgery.

Having received input from and consent of plaintiff’s counsel, the trial court

also instructed the jury that it should determine “[b]y what amount, if any, should

the plaintiffs’ actual damages be reduced because of Pamela Justus’s unreasonable

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failure to avoid or minimize her damages?” The trial court then gave the following

mitigation instruction, which is a slightly modified version of the pattern jury

instruction:

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 seek treatment to get well and 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.

On 25 September 2014, the jury returned its verdict finding defendant Rosner

liable under some unspecified theory of negligence but not liable for all other claims

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Newby, J., dissenting

against him. The jury also found no liability against any other defendants. Though

the trial court instructed the jury on numerous theories of negligence and several

factors of mitigation, the jury verdict sheet only included the following questions

related to defendant Rosner:

1. Was Pamela Justus injured by the negligence of the
defendant, Michael J. Rosner, M.D.? (Answer “YES” or
“NO” in the space provided below.)

ANSWER: Yes

....

3. Was the death of Pamela Justus caused by the
negligence of the defendant, Michael J. Rosner, M.D.?
(Answer “YES” or “NO” in the space provided below.)

ANSWER: No

....

5. Was the plaintiff damaged by the fraud of the
defendants?: (A) Michael J. Rosner, MD; . . . . (Answer this
issue “Yes” or “No” as to each of the . . . defendants.)

A. Michael J. Rosner MD No
....

6. Did the defendants take advantage of a position of trust
and confidence to bring about the surgeries of Pamela
Justus? (Answer this issue “Yes” or “No” only as to any
Defendant for which you answered “NO” in Issue No. 5
above.)

A. Michael J. Rosner MD No

....

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Newby, J., dissenting

If you answered Issue No. 6 “YES” as to any Defendant,
then you must answer Issue No. 7 as to that Defendant(s).

7. Did the defendants act openly, fairly and honestly in
bringing about the surgeries of Pamela Justus? (Answer
this issue “Yes” or “No” as to each of the following
defendants.)

A. Michael J. Rosner MD ________

....

8. Did Dr. Rosner conspire with Adventist Health System
and/or Park Ridge Hospital to allow or enable Dr. Rosner
to perform on members of the public, including Pamela
Justus, surgeries which were unnecessary or not medically
indicated with the intent and purpose of generating income
for Dr. Rosner and Park Ridge Hospital? (Answer “YES” or
“NO” in the space provided below.)

ANSWER: No

While the jury also indicated on its verdict form that plaintiff suffered

unspecified damages totaling $512,162.00, the jury reduced that award by

$512,161.00 due to plaintiff’s “unreasonable failure . . . to avoid or minimize her

damages.” The trial court entered judgment accordingly, awarding plaintiff $1.00.

On 30 October 2014, plaintiff moved to alter or amend the verdict, citing Rule

59(a)(7). See N.C.G.S. § 1A-1, Rule 59(a)(7) (2017) (“Insufficiency of the evidence to

justify the verdict or that the verdict is contrary to law”).5 Specifically, in her motion

5 Though plaintiff also cited Rule 59(a)(5) in her initial motion, plaintiff’s counsel
expressly stated that he was abandoning this argument at the trial court hearing. See
N.C.G.S. § 1A-1, Rule 59(a)(5) (2017) (“Manifest disregard by the jury of the instructions of
the court”).

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plaintiff asserted that defendants’ expert witness testimony led the jury to believe

that plaintiff had a duty to return to Dr. Rosner to mitigate her damages, which

plaintiff was not required to do by law. The motion argued:

8. The Plaintiff alleges and contends that the verdict
of the jury as to [the mitigation issue] was and is contrary
to the greater weight of credible testimony; that the jury
was misled by unreliable testimony into rendering an
erroneous verdict. . . .

....

10. That the verdict as to [the mitigation issue] is
contrary to law.

11. That, as to [the mitigation issue], the burden is
upon the Defendant(s). As a matter of fact and of law alike,
the Defendants failed to carry that burden, for they
presented legally insufficient evidence to support the jury’s
finding as to [mitigation]. Defendants’ sole evidence that
[plaintiff] supposedly failed to mitigate her damages is that
she did not allow Dr. Rosner to perform corrective surgery.
As a matter of law, however, she had no duty to seek
medical attention specifically from Dr. Rosner rather than
from other health care providers.
Thus, plaintiff requested that the court amend the verdict to award $512,161.00 in

damages or, alternatively, order a new trial on damages. In addition, plaintiff moved

for costs for, inter alia, expenses related to expert witness depositions and trial

testimony.

On 3 March 2015, the trial court entered an order granting plaintiff’s motion

to alter or amend the judgment by setting aside the jury’s mitigation finding and

entering judgment for $512,162.00. The trial court determined that “the overall

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Newby, J., dissenting

impression created by [the expert] witnesses (and thus communicated to the jury) is

that [plaintiff] had an obligation to return specifically to Dr. Rosner; and that, by

failing to do so, she allowed her condition to worsen.” The trial court further found

that “[t]here was no evidence presented that [plaintiff] unreasonably delayed trying

to have her problems diagnosed and corrected.” Thus, the trial court noted that,

“[g]iven the uncontested evidence that Ms. 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.”

Based on these findings of fact, the trial court made the following conclusions

of law:

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 [plaintiff]
unreasonably failed to mitigate her damages.

6. This Court committed prejudicial error in
submitting [mitigation] to the jury.

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

8. The jury appears to have made its initial damage

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Newby, J., dissenting

finding ($512,161.00) under the influence of passion or
prejudice, for the finding entirely omits any sum for pain
and suffering despite the uncontroverted evidence that
[plaintiff] 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 finding.

Believing it had the authority to modify the judgment as requested by plaintiff, the

trial court revised the amount of damages from $1.00 to $512,162.00. The trial court

did not award a new trial for damages or make any alternative holding. Finally, the

trial court granted plaintiff’s motion for costs, awarding plaintiff $175,547.59, the

amount that plaintiff requested for depositions and all experts’ trial testimony.

In reviewing the trial court’s determination, the Court of Appeals unanimously

concluded that the trial court erred by modifying the judgment. Justus v. Rosner, ___

N.C. App. ___, ___ n.5, ___, 802 S.E.2d 142, 149 n.5, 152-53 (2017). Nonetheless, the

majority crafted a new remedy in awarding a new trial solely on damages. Id. at ___,

802 S.E.2d at 152-53. The Court of Appeals believed that, though the trial court had

proceeded under a misapprehension of law, based on the trial court’s findings of fact

and conclusions of law, this new remedy was appropriate. Id. at ___, 802 S.E.2d at

152-53. In its analysis the majority added to plaintiff’s rationale as presented to the

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Newby, J., dissenting

trial court under Rule 59(a)(7) and considered additional grounds under Rule 59(a)(6).

Id. at ___, 802 S.E.2d at 152. The Court of Appeals majority recognized that the trial

court had improperly relied on Rule 59(a)(8), allowing the court to order a new trial

for an “[e]rror in law occurring at the trial,” because plaintiff did not, as required by

that provision, object to the evidence at any point during trial. Id. at ___, 802 S.E.2d

at 152. Ultimately, the Court of Appeals vacated the trial court’s modified damages

award and granted a new trial on damages only. Id. at ___, 802 S.E.2d at 144.

Though the dissenting judge agreed that the trial court erred by rewriting the

damages award, he argued that plaintiff was not entitled to relief on any Rule 59

grounds. Id. at ___, 802 S.E.2d at 156 (Tyson, J., concurring in part and dissenting

in part). The dissent noted that, in granting plaintiff relief, the trial court

“substitute[d] its judgment for that of the jury’s without knowing which theory or

theories of negligence the jury’s verdict relies upon.” Id. at ___, 802 S.E.2d at 157.

Moreover, the dissent noted that plaintiff’s failure to “seek appropriate medical

treatment to mitigate her damages” is a “proper area of expert medical testimony”

that is solely a factual issue appropriate for the jury to decide. Id. at ___, 802 S.E.2d

at 158. The dissent also asserted that plaintiff and the trial court put “their own

emphasis upon the questions and answers posed to Dr. Rosner’s experts” when, in

fact, “[t]he expert witnesses did not state and the jury was not instructed that

[plaintiff] was required to return specifically to Dr. Rosner.” Id. at ___, 802 S.E.2d at

159. Viewed in light of all the evidence, the dissent opined that the “un-objected to

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Newby, J., dissenting

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

support the trial court’s decision to set aside the jury verdict.” Id. at ___, 802 S.E.2d

at 159. Therefore, the dissent would vacate the trial court’s order and remand for

that court to reinstate the jury’s verdict. Id. at ___, 802 S.E.2d at 160.

Defendant Rosner appealed the decision of the Court of Appeals based on the

dissenting opinion. This Court also granted defendant Rosner’s petition for

discretionary review on the issue of whether, if a new trial is necessary, the new trial

should encompass both damages and liability.6

The majority agrees that the trial court erred in some of its rationale and in its

granting a revised damages award. The majority nonetheless, with little analysis,

upholds the appellate court-created remedy of a new trial as to damages only by

mistakenly applying a deferential standard of review. As the cases hold, trial court

decisions receive a deferential standard of review, not those of the Court of Appeals.

Thus, with only conclusory statements, the majority allows the remedy of a new trial

solely as to damages. In reaching its conclusion, the majority contravenes precedent

by wrongly invading the jury room and somehow pinpointing the single theory of

6 This Court likewise granted defendant Rosner’s petition for discretionary review
regarding the issue of contributory negligence. Defendant Rosner argued that the trial court
should have instructed the jury on contributory negligence because, in his view, much of what
plaintiff conceded was mitigation evidence actually supported a defense of contributory
negligence. This Court decides that it improvidently allowed discretionary review of the
contributory negligence issue.

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Newby, J., dissenting

negligence the jury chose. After selecting one of the fifteen possible theories of

negligence, the majority then determines the damages are “insufficient” under that

particular theory but nonetheless concludes the verdict did not represent a

compromise.

Because the trial court labored under a misapprehension of the law in its

assessment of plaintiff’s motion and its remedy, this Court should return the matter

to the trial court for a proper review of plaintiff’s motion. The trial court should limit

itself to the legal grounds raised by plaintiff’s motion and fairly assess the un-objected

to evidence presented at trial. The trial court should not guess which theory of

negligence the jury found, but should inquire whether any theory of negligence

supports the jury’s assessment of damages. Likewise, the trial court should not

reweigh the mitigation evidence, but looking carefully at all of it, consider whether

any evidence supports the jury’s mitigation decision.

I.

While “[i]t is impossible to place precise boundaries on the trial court’s exercise

of its discretion to grant a new trial,” a trial court’s decision to interfere with a jury

verdict should be made with “great care and exceeding reluctance.” In re Will of Buck,

350 N.C. 621, 626, 516 S.E.2d 858, 861 (1999) (emphasis omitted); see also Bird v.

Bradburn, 131 N.C. 488, 489, 42 S.E. 936, 937 (1902) (noting that a trial judge “will

be reluctant to set his opinion against that of the twelve [jurors]” (parentheses

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Newby, J., dissenting

omitted)). “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. at 626, 516 S.E.2d at 861; see also Worthington v. Bynum, 305 N.C. 478, 487,

290 S.E.2d 599, 605 (1982) (“[T]rial 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.”); State v. Little, 174 N.C.

800, 802, 94 S.E. 1, 2 (1917) (“It is the province of the jury to weigh the testimony and

to sift the true from the false.” (citations omitted)).

Rule 59 of the North Carolina Rules of Civil Procedure codifies the authority

of a trial court to set aside a jury verdict by granting a new trial or altering or

amending a jury verdict in limited circumstances. See N.C.G.S. § 1A-1, Rule 59

(2017); Bird, 131 N.C. at 489, 42 S.E. at 936 (recognizing the trial court’s inherent

power to set aside a jury verdict as a matter of discretion). Under Rule 59, the parties

in a case may move for a new trial or an altered or amended judgment, or

alternatively, the trial court may order a new trial on its own initiative so long as it

does so “[n]ot later than 10 days after entry of judgment.” N.C.G.S. § 1A-1, Rule 59(d).

Specifically, Rule 59(a)(7) allows the trial court to grant a new trial “on all or part of

the issues” when there is “[i]nsufficien[t] . . . evidence to justify the verdict or . . . the

verdict is contrary to law.” Id., Rule 59(a)(7). A trial court should grant a motion

under Rule 59(a)(7) in only “those exceptional situations where the verdict is contrary

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Newby, J., dissenting

to the evidence presented and [where the verdict] will result in a miscarriage of

justice.” In re Buck, 350 N.C. at 628, 516 S.E.2d at 862.

When a trial court properly addresses a Rule 59 motion, a trial court’s action

is reviewed only for an abuse of discretion. See id. at 625, 516 S.E.2d at 860-61 (“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.”);

Worthington, 305 N.C. at 487, 290 S.E.2d at 605 (“[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.”). We afford this deference because the trial court, unlike an appellate court,

“active[ly] participat[es] in the trial,” is “acquaint[ed] with the evidence presented,”

and observes all parties involved. Worthington, 305 N.C. at 487, 290 S.E.2d at 605.

A trial court abuses its discretion when it misapprehends the applicable law.

See, e.g., In re Estate of Skinner, 370 N.C. 126, 139-40, 804 S.E.2d 449, 457-58 (2017).

For instance, while Rule 59 affords the trial court the ability to alter or amend the

verdict, the trial court may not increase the monetary judgment for a reason other

than to award interest. See Bethea v. Town of 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

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Newby, J., dissenting

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.” (first quoting 2 McIntosh, North

Carolina Practice and Procedure § 1691 (2d ed. 1956); and then citing City of Durham

v. Davis, 171 N.C. 305, 88 S.E. 433 (1916))).

When the trial court commits such an error of law, an appellate court should

not usurp the role of the trial court; rather, the appropriate remedy is to vacate the

order or judgment on that issue, state the law, and remand to the appropriate lower

court to apply the correct legal standard. See, e.g., Wilson v. McLeod Oil Co., 327 N.C.

491, 523, 398 S.E.2d 586, 603 (1990) (“Since the judge’s order was signed under a

misapprehension of the law, we believe the better approach is to vacate the order and

remand for reconsideration of plaintiffs’ motion . . . in light of our opinion in this

case . . . .”); Nationwide Mut. Ins. Co. v. Chantos, 298 N.C. 246, 252, 258 S.E.2d 334,

338 (1979) (reasoning that, when a trial judge misunderstood his authority under

Rule 59, the proper remedy would be to remand the case to the trial court to make

the appropriate determination); Hanford v. McSwain, 230 N.C. 229, 233, 53 S.E.2d

84, 87 (1949); see also In re Skinner, 370 N.C. at 146, 804 S.E.2d at 462 (Morgan, J.,

dissenting) (citations omitted).

It is clear that the trial court misapprehended the law by rewriting the

damages award for reasons other than awarding interest. Acting under this

misapprehension of law, the trial court made various findings of fact unsupported by

the evidence, considered various Rule 59 grounds not argued by plaintiff to support

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Newby, J., dissenting

its decision, and crafted a legally invalid remedy. For example, the trial court relied

on its findings that “passion or prejudice” permeated the jury’s initial damage award

and subsequent decision to reduce damages. Passion and prejudice, however, are not

an appropriate consideration under plaintiff’s Rule 59(a)(7) motion.7 Rule 59 confines

a trial court’s consideration to the Rule 59 grounds asserted by a plaintiff.8 Moreover,

the trial court deemed evidence of plaintiff’s attempt to receive follow-up treatment

as “uncontroverted” to support its conclusion that there was a “lack of evidence to

support any mitigation finding at all.” Throughout the almost two-month trial,

however, the parties debated and discussed in depth whether plaintiff took

appropriate mitigation actions after the surgery. During the trial and charge

conference the mitigation issue was central and clearly not “uncontroverted.” Thus,

the proper remedy when the trial court proceeded under a misapprehension of law is

for the appellate court to state the applicable law and remand the case to the trial

court to determine the motion under the proper legal standard.9

7Passion and prejudice are a proper consideration under Rule 59(a)(6) and in crafting
the remedy of the scope of a new trial. See discussion infra II.
8 If upon review the trial court determined of its own accord that different grounds
warranted setting aside the verdict under Rule 59, it must have acted within ten days after
its entry of judgment, which it did not do. Otherwise, the trial court is limited to the grounds
specified by the moving party. See N.C.G.S. § 1A-1, Rule 59(d).
9 Because the trial court’s findings of fact and conclusions of law appear to be tainted
by its misapprehension of law, the case should be remanded to the trial court. Nonetheless,
for the reasons stated herein and in the dissenting opinion at the Court of Appeals, I think
many of the trial court’s findings of fact are unsupported and its conclusions of law are in
error.

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Newby, J., dissenting

II.

Nonetheless, if a new trial is warranted, the majority also errs by upholding

with little analysis the remedy of a new trial solely on damages instead of on all

issues. “It is settled beyond controversy that it is entirely discretionary with the

[Trial] Court . . . whether it will grant a partial new trial.” Table Rock Lumber Co. v.

Branch, 158 N.C. 251, 253, 73 S.E. 164, 165 (1911). A trial court will typically grant

a partial new trial “when the error, or reason for the new trial, is confined to one

issue, which is entirely separable from the others and it is perfectly clear that there

is no danger of complication.” Id. at 253, 73 S.E. at 165. Importantly, however,

“[w]here it appears that the verdict was the result of a compromise, such error taints

the entire verdict and requires a new trial as to all of the issues in the case.” Robertson

v. Stanley, 285 N.C. 561, 569, 206 S.E.2d 190, 195 (1974) (quoting 58 Am. Jur. 2d New

Trial § 27, at 213 (1971) [hereinafter New Trial]).

“Courts are reluctant to grant a new trial as to damages alone unless it is clear

that the error in assessing damages did not affect the entire verdict.” Id. at 568, 206

S.E.2d at 195. Moreover, “[a] new trial as to damages alone should not be granted

where there is ground for a strong suspicion that the jury awarded inadequate

damages to the plaintiff as a result of a compromise involving the question of

liability.” Id. at 569, 206 S.E.2d at 196 (alteration in original) (quoting M.C.

Dransfield, Annotation, Propriety of Limiting to Issue of Damages Alone New Trial

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Newby, J., dissenting

Granted on Ground of Inadequacy of Damages Awarded, 29 A.L.R.2d 1199, § 10

(1953)).

This Court has previously recognized that a “grossly inadequate” award of

damages may indicate “that the jury was actuated by bias or prejudice, or that the

verdict was a compromise.” Id. at 569, 206 S.E.2d at 195-96 (quoting New Trial § 27,

at 213). “[W]here, in an action for personal injuries the severity of the injury was

beyond contention, a verdict for a grossly inadequate sum was in itself almost a

conclusive demonstration that it was the result, not of justifiable concession of views,

but of improper compromise of the vital principles which should have controlled the

decision.” Bartholomew & Co. v. Parrish, 186 N.C. 81, 84, 118 S.E. 899, 900 (1923).

In such a case “the court must set aside the verdict in its entirety and award a new

trial on all issues.” Robertson, 285 N.C. at 569, 206 S.E.2d at 196 (quoting New Trial

§ 27).

Here the jury was instructed on fifteen different theories of liability and

multiple factors of mitigation. Though the jury found defendant negligent and

initially awarded plaintiff damages totaling $512,161.00 (being comparable to the

amount plaintiff submitted as her medical bills), the jury reduced plaintiff’s damages

to $1.00 due to her failure to mitigate. Such an award, depending on the theory of

negligence, appears to be the exact type of “inadequate sum” of damages this Court

has previously determined can indicate a compromise verdict. In addition, the jury

found no liability against any other defendant, rejected plaintiff’s claim that the

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Newby, J., dissenting

surgeries were performed as part of a conspiracy between these parties, and found

defendant Rosner not responsible for plaintiff’s death. Given that plaintiff advanced

fifteen different theories of negligence, including that defendant Rosner failed to

properly inform plaintiff of the procedures and their risks and performed unnecessary

surgeries, the jury’s finding of negligence in conjunction with its $1.00 damage award

may indicate various compromises.

Improper jury motive leading to an inadequate verdict appears to be the

precise issue with which the trial court was concerned, evinced by its findings on

three separate occasions that passion or prejudice permeated the jury award.

Likewise, the majority opinion agrees the damage award was insufficient. It appears

the trial court and majority acknowledge the presence of the precise factors indicating

a compromise verdict, warranting a completely new trial.

Further, given this outcome, the jury may not have actually believed the theory

on which it found defendant liable or concluded that its finding of negligence was

more theoretical than practical, thereby leading jurors to issue a nominal damage

award as the result of a compromise. Similarly, the compromise was perhaps to find

negligence but award only $1.00 in damages. As such, the jury’s verdict is tainted so

that a new trial on damages only would not be proper. Such a finding supports a new

trial on all issues; it is impossible to say the finding of liability is untainted, but the

damages amount is not. See Robertson, 285 N.C. at 569, 206 S.E.2d at 196.

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Newby, J., dissenting

Nonetheless, the Court of Appeals creates a remedy of a new trial as to

damages only. Then, at this Court, without analysis the majority grants the

deference reserved for the trial court to the Court of Appeals’ determination to create

a new remedy. While the majority at this Court recognizes that a trial court’s ability

to set aside a judgment is reviewed for abuse of discretion, the majority now applies

the same review to the Court of Appeals’ decision to create its own remedy. The trial

court, not the Court of Appeals, would be the proper court to determine whether

plaintiff should receive a new trial and if so, on what issues. Nonetheless, this Court

prefers to speculate as to what a fully informed trial court would do instead of simply

allowing it to act.

The majority’s decision further exacerbates the errors of the trial court and

Court of Appeals by clearly invading the jury room, sifting through plaintiff’s fifteen

theories of negligence and award of damages, and speculating as to the jury’s actual

reasoning and conclusions. From the cold record, the majority makes these

declarations: of the fifteen possible grounds for negligence, the jury found defendant

liable on one particular ground, characterized by the majority as “perform[ing]

unnecessary surgeries”; the majority’s selected theory of negligence required

damages for pain and suffering; the amount of damages awarded by the jury does not

include any amount for pain and suffering; and the jury based its mitigation decision

solely on plaintiff’s failure to return specifically to Rosner. To reach these

conclusions, the majority isolates several lines of testimony that occurred over an

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Newby, J., dissenting

almost two-month trial. Because the record does not indicate the theory on which the

jury made its decision, our jurisprudence is clear that this Court should not substitute

itself for the jury and “presume to know” the theory upon which the jury relied.

McGill v. French, 333 N.C. 209, 215-16, 424 S.E.2d 108, 111-12 (1993) (restating the

well-established “principle that a reviewing court cannot appropriately determine,

absent clear showing of record, upon what basis a jury renders its verdict” (citations

omitted)); id. at 216, 424 S.E.2d at 112 (“We therefore hold that the Court of Appeals

erred in assuming that the particular act of negligence upon which the jury based its

verdict was defendant’s alleged failure to inform the plaintiff of his cancer.”)

Therefore, a new trial on all issues is particularly appropriate in this case

because a new jury will not know the theory of negligence on which the jury relied

and which corresponding damages may be appropriate.

III.

When a trial court proceeds under a misapprehension of law, an appellate court

should state the law and remand the case to the trial court for proper consideration.

It is unclear whether, had the trial court correctly known the law, it would have

awarded a new trial, and if so, whether it would limit a new trial solely to damages.

Even given the majority’s approach that a new trial is warranted, plaintiff should

receive “a new trial [on] all of the issues.” Robertson, 285 N.C. at 569, 206 S.E.2d at

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Newby, J., dissenting

195 (quoting New Trial § 27, at 213). As such, any review of costs would be premature

at this time.

The Court of Appeals erred in crafting its own remedy, a new trial on damages

only, and this Court errs by applying a deferential standard to that remedy. If a new

trial were justified, the trial should be on all issues. Accordingly, I respectfully

dissent.

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