The future is uncertain

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 51

CASES FROM THE WEEK DECEMBER 25, 2020

NO ABUSE OF DISCRETION TO DENY ADDITUR AND MOTION FOR NEW TRIAL BASED ON ZERO VERDICT FOR FUTURE MEDICAL EXPENSES--NEED FOR SUCH DAMAGES WAS IN CONTENTION THROUGHOUT THE TRIAL—HOWEVER, AWARD OF ZERO DAMAGES FOR PAST NONECONOMIC DAMAGES WAS INADEQUATE AS A MATTER OF LAW, WHERE THERE WAS EVIDENCE THAT PLAINTIFF SUFFERED INJURIES REQUIRING TREATMENT.

Cabrera v. Wal-Mart, 45 Fla. L Weekly D2812 (Fla. 3rd DCA December 16, 2020):

The plaintiff fell in a puddle of water at Wal-Mart, and experienced right knee and lower back pain, as well as tingling into her extremities. Her physician confirmed a lumbar spine herniation and misaligned patella, but due to her other medical limitations, was not a candidate for surgery.

While plaintiff’s physician testified that she had suffered from trauma-induced pain as a result of the fall, and Wal-Mart did not present an expert, Wal-Mart suggested during cross, that the pain was attributable in part to co-existing medical conditions, including arthritis and corpulence.

During closing, Wal-Mart’s attorney conceded that the plaintiff was indeed “hurt” by the fall, but contended that her asserted levels of pain were exaggerated. The jury awarded plaintiff the entirety of her past medical expenses but nothing for pain and suffering or for future damages. The trial judge denied plaintiff’s motion for new trial and additur.

A motion for additur requires the court to determine whether the amount of damages the jury awards is “inadequate in light of the facts and circumstances which were presented to the trier fact.” If the amount awarded is deemed inadequate, the court is charged with ordering the additur under §768.74(2).

Cases involving inadequate damages have been distinguished between past and future damages. Past damages allow a record that gives the trier fact an opportunity to scrutinize very closely what has already happened. However, that is not the case with respect to future losses, which require and afford much more discretion to the finder of fact.

In this case, the need for future damages remained in contention throughout the trial, particularly in light of the plaintiff’s inability to obtain medical clearance for surgery, and her failure to consistently treat with her doctor. Therefore, the court found that the jury’s failure to award future damages was supported by the evidence.

However, when the evidence at trial of the existence of noneconomic damages is substantially undisputed, and when the jury finds that the plaintiff suffered injuries that require treatment as evidence by an award of past medical expenses, a verdict devoid of past noneconomic damages is inadequate as a matter of law.

Here, the physician was the sole testifying expert, and established that the plaintiff suffered from trauma-induced pain along with permanent injuries as a result of her fall. Wal-Mart conceded that the plaintiff experienced pain from the fall, and the jury awarded all of her past medical expenses. The evidence was also substantially undisputed that the plaintiff suffered noneconomic damages.

Under those circumstances, the jury’s failure to award even nominal past noneconomic damages was not supported by the weight of the evidence, and the denial of the motion for additur or new trial, constituted error on that element.

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WHILE NO IRREPARABLE HARM SHOWN, COURT REMINDS US THAT PRIVILEGES ARE HARD TO WAIVE EVEN WHEN RAISED UNTIMELY.

Gross v. A & M Florida Properties, 45 Fla. L Weekly D2808 (Fla. 3rd DCA December 16, 2020):

Because the order being reviewed had not actually compelled production of privileged documents (it was more akin to a case where the court issues an order requiring allegedly privilege documents to be assembled and submitted for in camera inspection, but does not order the release of them pending further review), certiorari review was premature.

The court additionally noted, however, that a failure to assert a privilege at the earliest opportunity in response to a discovery motion does not necessarily constitute a waiver of the privilege, as long as the privilege is asserted by a pleading to the trial court before there has been actual disclosure of the information alleged to be protected.

ERROR TO AWARD ATTORNEY’S FEES BASED ON CONCLUSION THAT PLAINTIFF IMPROPERLY STRUCTURED PLEADINGS AS TO THE JURISDICTIONAL AMOUNT TO INVOKE CIRCUIT COURT JURISDICTION.

Joyce v. Shingary, 45 Fla. L Weekly D2832 (Fla. 4th DCA December 16, 2020):

The corporate defendant convinced the circuit court that the plaintiff had improperly structured his pleadings about the jurisdictional amount, to invoke the circuit court’s jurisdiction. However, the record indicated that the plaintiff’s original and amended complaints all properly pled above the circuit court jurisdictional amount (based on amounts plead therein for unpaid wages).

If the circuit court were to determine later that it lacked jurisdiction because the plaintiff’s claimed damages were less than the monetary threshold, it could have transferred the action to county court. While the court did not come out and specifically say so, its ruling suggested that such an alleged “misstep” would not justify fees under §57.105.