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Lockwood v. Lord12/16/1994
JOHNSON, J. Plaintiffs, Adam Lockwood and his parents, appeal from a judgment notwithstanding the verdict, entered by the court for defendant Dr. Lord, after a jury verdict for plaintiffs. We reverse. Pursuant to V.R.C.P. 50(c), the trial court conditionally ordered a new trial if the judgment notwithstanding the verdict were reversed. We conclude that the grant of a new trial on the basis of the weight of the evidence was an abuse of the trial court's discretion. Defendant cross-appeals, claiming that the jury instructions were improper and that the damages were unsubstantiated and excessive. We find that defendant's cross-appeal regarding improper jury instructions is without merit. Because the trial court did not rule on defendant's motion for remittitur, we remand the issue of damages.
Plaintiff, an eleven-year-old boy with cerebral palsy, broke his left leg on December 13, 1986. Defendant, the orthopedic surgeon on call at Mt. Ascutney Hospital, set the fracture and applied a full-length cast to plaintiff's leg. Defendant conducted follow-up exams, and on January 20, 1987, replaced the full-length cast with a short leg cast. When this cast was removed on February 17, plaintiff was unable to walk, even with the assistance of a walker. On March 17, defendant evaluated plaintiff's left foot and observed a severe external rotation. Defendant recommended that plaintiff have an operation to correct this rotational deformity. In September 1987, a tibial osteotomy, performed in Burlington by another orthopedic surgeon, corrected the rotational deformity. In August 1988, plaintiff had a further operation to remove from his leg the hardware required for the first operation.
Plaintiffs sued defendant for medical malpractice. After a full trial with expert testimony from both sides, the jury awarded Adam Lockwood $230,000 and his mother Katherine Lockwood $20,000. The trial court granted defendant's motion for judgment notwithstanding the verdict (j.n.o.v.), concluding that plaintiffs did not introduce sufficient evidence to permit a jury to conclude that defendant had breached the standard of care proximately causing the injury. Believing that the verdict was against the great weight of the evidence, the court issued a conditional order, pursuant to V.R.C.P. 50(c), granting a new trial if the j.n.o.v. were reversed. Plaintiffs appeal, and defendant cross-appeals.
I.
When reviewing the grant of a j.n.o.v. under V.R.C.P. 50(b), we must view the evidence in the light most favorable to the nonmoving party, excluding the effect of any modifying evidence, Silva v. Stevens, 156 Vt. 94, 113, 589 A.2d 852, 856 (1991). The grant of a j.n.o.v. is improper if there is any evidence that fairly and reasonably supports the nonmoving party's claim. Id. at 113, 589 A.2d at 856-57; see Kinzer v. Degler Corp., 145 Vt. 410, 412, 491 A.2d 1017, 1018 (1985) (directed verdict and j.n.o.v. raise substantially the same legal questions and are therefore treated alike). Plaintiffs are entitled to every reasonable inference that may be drawn from the evidence. Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970); 9 C. Wright & A. Miller, Federal Practice and Procedure ยง 2528 (1971); see South Burlington Sch. Dist. v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 Vt. 33, 40, 410 A.2d 1359, 1362 (1980) (in reviewing a motion for a directed verdict, "plaintiff is entitled to the strongest inferences reasonably deducible from the most favorable evidence").
The principal issue on appeal is whether plaintiffs introduced sufficient evidence fairly and reasonably tending to prove that defendant breached the standard of care proximately causing the injury. To be successful in a medical malp
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