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Cox v. Steffes11/18/2003
r the proposition that the trial court erred in allowing plaintiff's expert to testify as to the national standard of care. In Henry, however, "there no evidence that the national standard of care is the standard practiced in Wilmington." Id. at 210, 550 S.E.2d at 247. Likewise, in the recent decision in Smith v. Whitmer, __ N.C. App. __, __, 582 S.E.2d 669, 673 (2003), this Court affirmed a grant of summary judgment when plaintiff's expert witness could only testify to a national standard of care, but "there was no evidence that a national standard of care is the same standard of care practiced in defendants' community." By contrast, in this case defendants' expert witness confirmed that the standard of care was "universally accepted" and "would be the same across the US in 1994 for any board-certified surgeon[.]" Dr. McGuire supplied the evidence lacking in Henry and Smith. We therefore reverse the trial court's order granting defendants' motion for JNOV.
As a final matter, we note that defendants also moved pursuant to Rule 59 of the Rules of Civil Procedure for a new trial. Although the trial court indicated orally in the course of the hearing on defendants' post-trial motions that it was "not inclined" to grant defendants' motion for a conditional new trial, the record on appeal contains no order reflecting any decision by the court as to that motion.
Under Rule 50(c)(1) of the Rules of Civil Procedure, if a motion for JNOV is granted, "the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial." It was defendants' obligation to ensure that they obtained a ruling on their motion for a conditional new trial:
A party gaining judgment notwithstanding the verdict should also ask for a ruling pursuant to G.S. 1A-1, Rule 50(c)(1), on the motion for a new trial if he wishes to allege any error in the trial or to preserve any question other than the sufficiency of the evidence for appellate review.
Beal v. K. H. Stephenson Supply Co., 36 N.C. App. 505, 510, 244 S.E.2d 463, 466 (1978). Because defendants failed to seek a ruling on their motion for a new trial and did not make any cross-assignments of error as to the trial, we reverse and remand for entry of judgment on the verdict.
Reversed in part and remanded for entry of judgment on the verdict; affirmed in part.
Judges MARTIN and HUNTER concur.
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