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Justus v. Rosner attorneys spar over fees

Scott Stevenson, the attorney for Dr. Michael Rosner, and plaintiff's attorney Wade Byrd were back in court in January. Scott Stevenson, the attorney for Dr. Michael Rosner, and plaintiff's attorney Wade Byrd were back in court in January.

In what could be their last public duel, lawyers on opposing sides of the epic Justus v. Rosner medical malpractice case argued this week over attorneys fees and a plaintiff's effort to restore a $512,000 award.

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Filed in 2003 on behalf of a patient who went to see Dr. Michael J. Rosner, the lawsuit required 11 years and, according to plaintiff's attorney Wade Byrd, almost $4 million to bring to trial.
Byrd argued that Rosner, a neurosurgeon known for his controversial surgeries to treat people who complained of lifelong chronic pain or fatigue, injured his client, Pam Justus, during two surgeries in 2000 and 2001. Mrs. Justus suffered severe headaches, diabetes and depression for most of her adult life and went to Rosner in hopes of getting relief. Instead, her attorneys argued at trial, the surgeries left her in more pain than ever, unable to lift her head from her chest and with a paralyzed a vocal cord. She died in September 2012.
After a seven-week trial, a jury in Henderson County Civil Superior Court found that Rosner was negligent but reduced a damage award from $512,162 to $1.
In a hearing on Monday before Judge Zoro J. Guice Jr., Byrd argued that the jurors had improperly reduced the award based on one of the 14 questions the judge had given them: "By what amount, if any, should the plaintiff's actual damages be reduced because of Pamela Justus's unreasonable failure, if any, to avoid or minimize her damages?"
Byrd asked Judge Guice to strike the mitigation question, leaving the full award.
"I'm not suggesting that that was adequate," Byrd said. "All it was was for medcal bills. I'm not asking the court to change that amount. I think you can amend the judgment by striking the issue (of mitigation) we submit should not have been submitted to the jury."
The $500,000 is a fraction of what the plaintiff sought in the case.
During closing arguments, Byrd asked the jury to return an award of $5.1 million to Pam Justus's husband, Billy, for compensatory and punitive damages, and at one time he had made the argument for $10 million in compensatory damages and $30 million in punitive damages.


Don't 'meddle with jury verdict'

Rosner's attorney, Scott Stevenson of Charlotte, told the judge that case law would not permit an amended judgment.
Quoting a state Supreme Court case, Stevenson told Judge Guice that Byrd's motion — a so-called Rule 59 motion to amend or alter a judgment reached at trial — "could not be used to reargue matters already argued or to put forth arguments which were not made but could have made."
The plaintiff's attorney, Stevenson said, was doing both.
"What we have here is Mr. Byrd saying I didn't make an argument I should have made at the charge conference and under this case that would be improper because you can't argue under Rule 59 something that should have been argued earlier and was not," he said.
As for Byrd's argument that there was insufficient evidence to support Judge Guice's instruction that allowed the jury to consider mitigation of damages "is just rearguing something that we argued for four days," he said. "I don't know if you've ever been involved in a case like this. I certainly haven't and I've been doing cases for 35 years. We tried it for seven weeks. I'm sure the lawyers tried your patience to the nth degree because we had a four-day charge conference" to hammer out what the judge would say to the jury in his final instructions.
"I never had that before," Guice put in.
"I never had that, never seen it, never heard of it," Stevenson added. "We had a lot of lawyers here. Your honor was very patient and you let every lawyer say what he had to say and you didn't stop us until we were done talking, and if you give lawyers the floor it'll take four days. Every single lawyer argued every single instruction and beat that horse to death."
The law, Stevenson said, tilts strongly in favor of a jury verdict.
"The question is should your honor meddle with the verdict of the jury and the cases say absolutely that your honor should not," he said. Quoting another case, he said: "It is a cardinal rule that the jury must follow the verdict, and if the jury has given a specified sum of damages the court cannot increase or diminish the amount.
"What Mr. Byrd is asking you to change the verdict from $1 to $512,000, and this case says he can't do that."
Nor could the judge amend the jury verdict by dropping the mitigation issue.
The issue of negligence, contributory negligence and damages "are so inextricably interwoven that a new trial on all the issues is necessary," he said, quoting another appeals court case. "You cannot just untangle the negligence, the mitigation, the damages issues. Rather, a new trial has to be ordered."
The jury, he said, had properly considered the defense argument that Pam Justus had failed to do as much as she could have to get treatment for the damage caused by Dr. Rosner's surgeries.
"The jury is the sole finder of fact," he said. "It is their job to resolve the conflict in the contradictory evidence and they did that in this case."


'They get paid, we don't'


As for attorney fees and court costs, Byrd argued that the verdict of negligence with an award of just $1 entitled the plaintiff to recover some part of its cost, which he calculated in a motion at $3.8 million.
Stevenson objected to that request as well, saying a state law allowing plaintiffs to recover legal fees in small damage award does not apply in this case.
A state rule governing reimbursable costs in civil lawsuits contains "strict guidelines," Stevenson said. "It is only for time spent testifying at trial — actual testimony time — not sitting in the back of the courtroom, not traveling here from California, twice, not traveling here from Charlotte, twice. What is included only is time spent testifying, or actually testifying at deposition."
Byrd listed several witnesses who had not testified at trial at all and numerous witnesses who testified in favor of Park Ridge Hospital, where Rosner conducts surgeries. The jury found no negligence on the part of Park Ridge or its corporate parent, Adventist Health System.
"Mr. Byrd is asking for a staggering number because he got $1 from the jury, that because he got $1 from the jury he's entitled to over $2 million in attorney fees," Stevenson said. "He's basically saying my client gets a buck but I get $2½ million, which is not what the Legislature contemplated."

Byrd said it had cost his law firm "$1.4 million at a minimum to bring this case." While the defense lawyers get paid while they travel, conduct depositions, prepare for trial and conduct the trial, the plaintiff's team gets no attorney fees and has to pay for expert witnesses and cover travel and other costs.
Judge Guice told the attorneys he would try to file a ruling within 30 days.