The power to Remit grows stronger

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 22

CASES FROM THE WEEK OF JUNE 5, 2026

REMITTITUR OF FUTURE MEDICAL EXPENSES AFFIRMED–TRIAL COURT DID NOT HAVE TO ACCEPT A POST-VERDICT THEORY BASED ON A SINGLE COST ESTIMATE THAT NO WITNESS EXPLAINED, COUNSEL NEVER ARGUED TO THE JURY, AND THAT CONFLICTED WITH THE REST OF THE RECORD

Bassett v. Morine, 51 Fla. L. Weekly D1092 (Fla. May 29, 2026):

The plaintiff sued the defendant for negligence and obtained a jury verdict that included $2,000,000 for future medical expenses. The defendant moved for remittitur or new trial. After a hearing, the trial court remitted the future medical award to $1,274,433.71. The plaintiff rejected the remittitur and appealed.

The dispute focused on future pain-management treatments. At trial, there was testimony that the plaintiff would need these treatments anywhere from every six months to every other year for the rest of her life. The joint exhibits included a statement showing one round of the treatments actually performed had cost $15,639.89. In closing, plaintiff’s counsel relied on that statement and argued one round cost “just over $15,000.” The life care plan assumed the plaintiff had another 57.2 years of life expectancy and included a present value of $380,132, but only one round of treatments because the planner knew of only one round expected for an upcoming surgery and deferred to treating doctors on future frequency and duration.

After the verdict, the plaintiff tried to justify the $2,000,000 future medical award by pointing to and stating an “approximate cost” of $35,000 to $45,000 for radiofrequency ablations. The problem was that the plaintiff had never argued to the jury that one round of treatments cost that much. In fact, she had argued that the per-treatment cost was less than half that amount.

The trial court used the actual $15,639.89 cost, multiplied it by the plaintiff’s 57.2-year life expectancy, and added that to the life care plan’s present value, arriving at the remitted amount of $1,274,433.71. The trial court also viewed any assumption that the plaintiff would need treatments more often than annually as speculative, and the plaintiff did not argue below for more than one treatment per year.

The appellate court affirmed. It found the estimate the plaintiff relied on did not support the plaintiff’s argument that each round would cost $35,000 to $45,000. The estimate did not say “per treatment,” even though on the same page it used phrases like “per visit,” “per session,” and “per set” for other items. The language suggested a global number and was prepared when the doctor’s report suggested treatments for only one to two years.

Future medical expenses have to be proven with reasonable certainty. It was not enough that the plaintiff could identify a single document with an estimated range that no witness explained that counsel never mentioned to the jury, and that conflicted with the other evidence. That “evidence” is too speculative to constitute reasonable certainty.

The court then reminded us about the court’s role in a remittitur. Trial courts are not merely checking whether there is “some” evidence that might possibly support the verdict. The Legislature gives trial courts an affirmative duty to review money damages for excessiveness or inadequacy under the statutory criteria. That requires more than rubber-stamping a verdict if a remote theory can be imagined after the fact. The trial court did not abuse its discretion in finding the future medical award clearly excessive and granting remittitur.

APPELLATE COURT AFFIRMED FINAL JUDGMENT BUT REFERRED COUNSEL TO THE FLORIDA BAR WHERE MULTIPLE QUOTATIONS IN THE INITIAL BRIEF DID NOT APPEAR IN THE TRIAL TRANSCRIPT OR THE RECORD

Innocent v. Meraki Installers, LLC, 51 Fla. L. Weekly D1061 (Fla.  4^th DCA May 27, 2026):

This appeal involved a final judgment for the defendant in a breach of contract and construction lien case. The appellate court affirmed without commenting on the merits.

The case makes the Week in Torts because it is one where an appellate court actually came down on an attorney (and not a pro se litigant) for complete reliance on AI which resulted in falsely quoting the trial transcript. The court reported the attorney to the Florida Bar for the abuse. Turns out the case is not so special after all (see the next case).

ANOTHER ATTORNEY REFERRED TO THE FLORIDA BAR AFTER FILING WHAT APPEARED TO BE AN AI-GENERATED CERTIORARI PETITION THAT RAISED FRIVOLOUS ARGUMENTS, MISSTATED THE LAW, CITED NONEXISTENT CASELAW, AND IMPROPERLY SOUGHT CERTIORARI REVIEW OF AN APPEALABLE NONFINAL ORDER

Eclectic Synergy, LLC v. Seredin, 51 Fla. L. Weekly D1061 (Fla. 4^th DCA May 27, 2026):

The plaintiff filed a certiorari petition and emergency motion for stay seeking review of an order denying a motion to disqualify opposing counsel. The trial court had entered a two-page explanatory order finding no fraud upon the court that would justify disqualification. The petition argued that the order lacked sufficient findings to permit review.

The appellate court rejected the petition noting that disqualification of counsel is an extraordinary remedy. Courts view the remedy with skepticism because it impinges on a party’s right to have counsel of choice and is often used for tactical purposes. The court concluded the trial court correctly denied disqualification, and that no further findings were required.

Then came the more serious part. The court had already redesignated the case as a nonfinal appeal because an order denying disqualification is appealable under rule 9.130(a)(3)(E). It treated the petition as the initial brief and summarily affirmed. The court also denied the “emergency” stay, explaining that an actual emergency means a matter of extreme urgency requiring immediate action to avoid imminent, irreparable, and material harm–not merely something counsel wants expedited.

The court then addressed the petition’s legal citations. One of the cited Florida cases did not exist, actually belonging to an unrelated case that did not support the cited proposition in any way. The petition also cited other cases for propositions they did not support and cited inapplicable second-tier certiorari cases.

Counsel responded that he did not intentionally mislead the court. He did not acknowledge having used AI, blaming instead a paralegal and a “transcription error.”

The court did not accept this plethora of explanations, noting that even the Ohio case counsel claimed he meant to cite had been overruled, something the court discovered through its own cite-checking.

The court held the filing reflected a breach of the duty of competence, especially because counsel filed an extraordinary writ petition when the order was appealable as of right. It affirmed and referred counsel to The Florida Bar.

DEFENDANT’S WRIT OF CERTIORARI DENIED IN MEDICAL MALPRACTICE CASE WHERE TRIAL COURT ORDERED THAT PLAINTIFF COULD COMPEL AN EXAMINATION OF THE DEFENDANT DOCTOR SUSPECTED OF SUFFERING FROM DEMENTIA WHEN SHE BOTCHED A THYROID BIOPSY AND KILLED THE PLAINTIFF’S HUSBAND

Santaella v. Vaz, 51 Fla. L. Weekly D1076 (Fla. 3^rd DCA May 27, 2026):

The plaintiff, as personal representative of her husband’s estate, sued the defendant doctor for medical malpractice. The plaintiff alleged that the defendant negligently biopsied and misdiagnosed a malignancy on the decedent’s thyroid in 2022, causing his death in 2023. The plaintiff’s theory was that the defendant continued practicing medicine while showing signs of dementia. The complaint also alleged that the defendant’s husband, also a doctor, negligently facilitated her continued practice during her neurocognitive decline.

The plaintiff noticed a compulsory medical examination under rule 1.360 to assess the defendant’s cognitive condition at the time of the incidents giving rise to the malpractice claim. The defendant sought certiorari, arguing that the trial court departed from the essential requirements of law by ordering an examination of her present cognitive abilities when only her prior cognitive abilities were at issue, and by finding good cause without adequately defining the scope of the examination.

The appellate court denied the petition.

The court explained that rule 1.360 requires the condition to be in controversy and good cause for the examination. Both were met. The neurologist who was to perform the exam attested that the examination would help form an opinion on the defendant’s cognitive abilities at the time of the biopsy and diagnosis. The court found the malpractice action placed the defendant’s cognitive state at that time directly in controversy.

The court also rejected the argument that the order failed to define the scope of the exam. Unlike an open-ended order allowing a doctor to conduct whatever exams or tests might be necessary, this order was carefully limited. It allowed only a virtual telehealth examination, with the defendant participating from home or wherever she felt comfortable. It allowed about 20 minutes of medical history followed by a general cognitive exam, with the cognitive portion limited to 20 to 40 minutes, or 10 minutes if the defendant was non-verbal. The entire exam was capped at 40 minutes. The order also prohibited questions about the defendant’s medical care of the decedent, allowed a spouse or family member and attorney to be present, and gave the defendant the exclusive option to videotape or transcribe the exam.

Because the trial court imposed specific limits on a defined examination of a condition in controversy, the court denied certiorari.