You too would want to punish THIS defendant

THE WEEK IN TORTS

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 38

CASES FROM THE WEEK OF SEPTEMBER 25, 2026

TRIAL COURT ERRED IN GRANTING NEW TRIAL ON PUNITIVE DAMAGES BASED ON THE REMITTITUR STATUTE RATHER THAN THE COMMON LAW STANDARD GOVERNING NEW TRIALS—CASE INVOLVED $500,000 PUNITIVE DAMAGE VERDICT WITH NO COMPENSATORY DAMAGES

Kohn v. Diedrich, 51 Fla. L. Weekly D1929 (Fla. 2d DCA September 18, 2026):

The plaintiff and defendant had once been involved in a long-term romantic relationship. After the plaintiff ended the relationship, the defendant retaliated, embarking on a campaign that included sending threatening emails under false names, posting fake reviews of the plaintiff’s real estate business, and pretending to be prospective clients or romantic interests in an effort to “catfish” her. The defendant also forced his way into the plaintiff’s home, pushed her down, and damaged her property, which resulted in criminal charges. Even after entry of a protective order prohibiting him from contacting her, he persisted.

The defendant initially sued the plaintiff for defamation and tortious interference. The plaintiff counterclaimed for defamation, intentional infliction of emotional distress, battery, assault, and intrusion upon seclusion.

The jury found for the plaintiff on all five counterclaims but awarded no compensatory damages. It did, however, award $500,000 in punitive damages. When the trial court submitted special interrogatories asking whether the jury intended to award punitive damages only, the jury confirmed that it did.

The defendant moved for remittitur or, alternatively, a new trial on punitive damages. Although the motion generally requested a new trial, the substantive argument focused on section 768.74, Florida Statutes, governing remittitur. The trial court denied remittitur but granted a new trial limited to punitive damages only, relying on the remittitur statute and general punitive damages principles rather than the common law standard governing motions for new trial.

The appellate court reversed that portion of the order. The court explained that the statutory standards for remittitur and the common law standards governing a motion for new trial are distinct.

Under the common law standard, the trial court must determine whether the verdict is contrary to the manifest weight of the evidence or was influenced by matters outside the record. Although a trial court need not recite particular magic words, its order must articulate reasons supporting the applicable standard so that meaningful appellate review is possible.

Here, the trial court analyzed the verdict under the wrong standard. The appellate court declined both parties’ requests to decide the ultimate propriety of a new trial and instead remanded for the trial court to reconsider the motion under the correct common law test.

The appellate court also expressly declined to decide whether any new trial, if warranted, could properly be limited to punitive damages. It affirmed the denial of remittitur, reversed the order granting a new trial, and remanded for further consideration.

FUTURE MEDICAL EXPENSES CANNOT BE BASED ON POSSIBLE TREATMENTS INCLUDED IN A LIFE CARE PLAN WHERE THE EVIDENCE DOES NOT ESTABLISH THAT THE PLAINTIFF IS REASONABLY CERTAIN TO INCUR THEM—BUT REVERSAL OF FUTURE MEDICAL EXPENSES DID NOT REQUIRE A NEW TRIAL ON FUTURE PAIN AND SUFFERING

Progressive Select Ins. Co. v. Reinberger, 51 Fla. L. Weekly D1934 (Fla. 2d DCA September 18, 2026):

The plaintiff was injured in a December 2019 automobile accident involving an uninsured driver. She sued her UM carrier seeking damages for her injuries.

The plaintiff retained a physician specializing in occupational and preventive medicine to prepare a life care plan estimating her future medical expenses. The expert reviewed medical records, interviewed the plaintiff, and spoke with her treating physician’s assistant. He did not personally examine the plaintiff or consult with an orthopedic surgeon, neurosurgeon, or any other surgeon regarding the need for future surgery.

The life care plan included future treatments such as physical therapy, injections, and radiofrequency ablation, as well as medication. However, the expert repeatedly described the proposed treatments using conditional terms such as “may,” “could,” and “if.”

The evidence also revealed that the plaintiff herself did not intend to undergo further injections or physical therapy and was not then willing to undergo radiofrequency ablation. Her treating physician’s assistant testified that some of the proposed treatments were unlikely and that the plan was to continue treating her with medication.

The jury found the other driver ninety percent responsible and the plaintiff ten percent comparatively negligent. It awarded $230,000 in future medical expenses and $1,190,000 in future noneconomic damages.

The defendant moved for a directed verdict, arguing that the future medical expenses were speculative. The trial court denied the motion, reasoning that the plaintiff had not definitively ruled out undergoing the proposed treatments and could change her mind.

The appellate court reversed the future medical expense award, except for $17,850 in medication expenses that the defendant conceded were supported by competent, substantial evidence.

The court explained that future medical expenses must be reasonably certain to occur. The mere possibility that a plaintiff might undergo treatment is insufficient, even when an expert generally characterizes the treatments in a life care plan as reasonably certain. The factual foundation for the opinion must actually support that conclusion.

Because the expert’s testimony was conditional, the treating provider considered the proposed procedures unlikely and the plaintiff did not intend to undergo them, there was no evidentiary basis to support the future medical expenses beyond medication.

The defendant also argued that the reversal of future medical expenses required a new trial on noneconomic damages, because the plaintiff’s counsel had suggested that the jury could calculate pain and suffering by multiplying economic damages.

The appellate court rejected that argument. Although counsel had mentioned that method, it was only one of three suggested approaches. Counsel principally emphasized the plaintiff’s continuing pain, insomnia, loss of independence, and the effect of her injuries on every hour of her life.

The court concluded that the future noneconomic damages were not so intertwined with the unsupported future medical expenses as to require a new trial. It therefore directed the trial court to strike the unsupported future medical expenses while leaving the remainder of the judgment.