The Week in Torts – Cases from the Week of February 2, 2018
FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 5
CASES FROM THE WEEK OF FEBRUARY 2, 2018
SUPREME COURT AUTHORIZES AMENDMENTS TO MULTIPLE INSTRUCTIONS.
In Re: Standard Jury Instructions in Civil Cases – Report No. 17-03, 43 Fla. L. Weekly S58 (Fla. February 1, 2018):
The Jury Instruction Committee proposed amendments to multiple instructions on note-taking, burden of proof, comparative negligence among others.
The highlights as noted by the court (all of the instructions were not published in the Florida Law Weekly but are available for anyone to request them), are on 401.21, 401.23, 402.13, 402.15, 409.12, 412.8 and 412.9, and Model Verdict Forms 1 and 5(c), the language is amended to change the phrase “caused by” to “apportioned to each,” on the basis that the instructions in the verdict forms as presently authorized are inconsistent with the jury instructions on legal cause and comparative fault (the jury instructions define legal causation in relation to damages and not negligence, fault or responsibility).
Instructions 501.4 and 502.5 have now been amended to ensure consistency between them. Both instructions address comparative fault and non-party fault, and now include language stating that the court in entering judgment will make any appropriate reduction(s).
The instructions will become effective when the opinion is final.
EVIDENCE OF MEDICAL TREATMENT INSURED MIGHT “POSSIBLY” NEED IN THE FUTURE WAS INSUFFICIENT TO SUSTAIN FUTURE MEDICAL EXPENSES AWARD–SUCH AN AWARD IS LIMITED TO EXPENSES “REASONABLY CERTAIN TO BE INCURRED.”
State Farm v. Harmon, 43 Fla. L. Weekly D238 (Fla. 5th DCA January 26, 2018):
Plaintiff sued her UM carrier, State Farm, for benefits following a collision with an uninsured driver. State Farm admitted the negligence of the adverse driver, but contested injury causation and related damages. The jury awarded the plaintiff $685,800 which included $158,000 for past medical expenses and $100,000 for future medical expenses.
There were issues on appeal regarding whether the scope of an expert’s testimony has been properly disclosed prior to trial, whether a treating physician could testify regarding why he referred the plaintiff to a neurosurgeon, and whether comments plaintiff’s counsel made during closing argument were unfairly prejudicial. The court affirmed on all of those issues without any discussion.
However, the court found that the trial court erred in denying State Farm’s motion for new trial or for remittitur regarding the jury’s award of $100,000 for future medical expenses.
The plaintiff’s physician testified that she would need certain care in the future such as routine follow-up visits on a schedule similar to the one followed post-accident. The doctor agreed with plaintiff’s counsel that his prior billing could reflect the cost of those probable future visits.
Additionally, the doctor testified that plaintiff might need different modalities of treatment in the future that “might include” trigger point injunctions, and “might possibly” be a benefit along with other treatments that “might be indicated” in the future. The doctor agreed with plaintiff’s counsel that a review of his past medical bills totaling $35,947 could define the costs of the possible treatments in the future.
Because Florida law restricts recovery of future medical expenses to those that are “reasonably certain” to be incurred, there was no evidentiary basis for the potential future medical expenses.
The trial court also erred for allowing an award for future care other than routine follow-up visits, because the doctor offered no specific or general dollar amount and provided no reliable means by which the jury could calculate the cost of potential additional future medical care. There must be an evidentiary basis upon which the jury with reasonable certainty can determine the amount of those expenses.
While there was evidence that plaintiff would probably need future care, at the very least, routine follow-up office visits, there was no competent evidence to support an award of $100,000 for future medical expenses.
Accordingly, the court reversed that portion of the final judgment and remanded for the trial court either to grant State Farm’s motion for remittitur, or to conduct a new trial limited to a determination of future medical expenses.