www.rissman.com
201 EAST PINE STREET
15TH FLOOR
ORLANDO, FLORIDA 32801
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
1 NORTH DALE MABRY HWY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM

900 S.E. 3RD AVENUE
SUITE 210
FT. LAUDERDALE, FL 33316
TELEPHONE (954) 526-5480
TELECOPIER (407) 841-9726
FTLAUDERDALE@RISSMAN.COM

709 SEBASTIAN BOULEVARD
SUITE B
SEBASTIAN, FLORIDA 32958
TELEPHONE (772) 228-3228
TELECOPIER (772) 228-3229
SEBASTIAN@RISSMAN.COM

 

 

In Ortega v. Belony, 41 Fla. L. Weekly D33a (Fla. 3d DCA Dec. 30, 2015), the plaintiff suffered a broken neck in a motor vehicle accident for which he was hospitalized in traction for eight days. The plaintiff wore a halo brace for three months while the break mended. At the end of the three months, plaintiff's injuries had substantially healed, the halo brace was removed and his only continuing ailment was mild neck pain.

Plaintiff filed suit approximately one year after the accident and in conjunction therewith sought treatment for neck pain from an orthopaedic spinal surgeon, Dr. Mark Eskenazi. At that point, the plaintiff's neck fracture had almost completely healed. Dr. Eskenazi recommended surgery.

The plaintiff refused instead opting for three injections to his neck. After the injections, the plaintiff felt "almost normal." By the time of trial, the plaintiff had no difficulty performing the activities of daily living, had not treated with Dr. Eskenazi in over a year and did not intend to pursue any future surgical procedures.

At the conclusion of trial, the jury found the plaintiff 70% comparatively negligent in the accident and awarded him $32,971.86 in past and future medical expenses and zero damages for past and future pain and suffering. Believing the $0 award to be contrary to the evidence, the trial court ordered the jury to reconsider the pain and suffering award. After additional deliberations, the jury awarded the plaintiff $5,000 for past and future pain and suffering.

The plaintiff moved for additur pursuant to § 768.043, Fla Stat. At the hearing on the motion, the trial judge expressed "shock" at the pain and suffering award and expressed his view that the jury must have been "coldblooded" to return such a low verdict. After some reflection, the trial court increased the pain and suffering award by $245,000 to a total of $250,000. The trial court's order reflected that the additur was granted because the pain and suffering award shocked the conscience of the court.

The defendant, Ortega, appealed the trial court's additur of $245,000. On appeal, the 3d DCA held that the well-established test for determining the adequacy of a jury verdict is simply "whether a jury of reasonable persons could have returned that verdict."

The 3d DCA also recognized that damages for pain and suffering are "peculiarly within the province of the jury" and that a pain and suffering verdict is "clothed with a presumption of regularity and is not to be disturbed if supported by the evidence." Thus, as it related to the pain and suffering damages award in this case, the 3d DCA ruled that the trial court could not sit as a "seventh juror."

In reviewing the evidence in support of the jury's verdict, the 3d DCA noted that although the plaintiff had suffered a severe permanent injury in the accident, he was stoic, his injuries had healed quickly and after a three month recovery, he had no need of future medical treatment. In fact, by the time of trial, the evidence showed that the plaintiff felt "almost normal."

Thus, based on the evidence presented, the 3d DCA held that there was no basis upon which the trial court could conclude, as a matter of law, that a jury of reasonable persons could not have reached a $5,000 award for pain and suffering.

Accordingly, the 3d DCA reversed the trial court's additur of $245,000 and remanded the case back to the trial court to reinstate the jury verdict.





 

This summary was prepared by Dean Hewitt of our firm.


Dean Hewitt

 

 

41 Fla. L. Weekly D33a

 

Torts -- Automobile accident -- Damages -- Pain and suffering -- Additur -- Trial court erred in increasing damages awarded to plaintiff by jury for past and future pain and suffering from a broken neck where jury verdict was reasonably based on evidence presented

MILVA LISSABET ORTEGA, Appellant, v. BLANCHARD BELONY, Appellee. 3rd District. Case No. 3D14-1655. L.T. Case No. 12-18524. December 30, 2015. An Appeal from the Circuit Court for Miami-Dade County, Ronald C. Dresnick, Judge. Counsel: Cole Scott & Kissane and Scott A. Cole and Daniel M. Schwarz, for appellant. Steven M. Goldsmith (Boca Raton); Lawlor Zigler, LLC, and Patrick W. Lawlor (Boca Raton), for appellee.

(Before SHEPHERD, SALTER and LOGUE, JJ.)

CORRECTED OPINION

(SHEPHERD, J.) In this plaintiff's personal injury case, the jury, not once, but twice refused to award the plaintiff any significant damages for past or future pain and suffering. The trial judge added $245,000 more to the jury verdict for this purpose. For the reasons set forth below, we reinstate the verdict.

Factual Background

As a result of a vehicular traffic accident, Blanchard Belony suffered a broken neck, for which he was hospitalized in traction for eight days. Although he could have elected surgery, he declined, and instead wore a "halo"1 for three months while the break mended. During this time he lived with his brother, who assisted him with his bathing and other needs. Belony also experienced difficulty sleeping, and, on one occasion, had to return to the hospital briefly to have the screws in his halo tightened. At the end of three months, however, Belony's injuries had substantially healed, the halo was removed, and his only continuing ailment was mild neck pain. By the time of trial, Belony's complaint was residual back pain. His doctors did not recommend any future treatment, including follow-up surgery or physical therapy, after removal of the halo.

Less than a year after the accident, and in conjunction with his filing suit, Belony sought treatment for neck pain from orthopedic spinal surgeon, Dr. Mark Eskenazi. At this point, Belony's neck fracture had almost completely healed. Dr. Eskenazi recommended surgery, which Belony again refused, instead opting for three injections to his neck. Dr. Eskenazi administered the injections and told Belony to return if he felt any worse. After the injections from Dr. Eskenazi, Belony felt almost normal. By the time of trial, Belony had no difficulty performing the activities of daily living, had not returned to seek treatment from Dr. Eskenazi in over a year, and did not intend on seeking any future surgical procedures.

At the conclusion of trial, the jury found Belony seventy percent (70%) comparatively negligent in the accident, and awarded him his full $32,971.86 in past and future medical expenses, and zero damages for past and future pain and suffering. Believing the $0 award to be contrary to the evidence, the trial court ordered the jury to reconsider the pain and suffering award. After additional deliberations, the jury awarded Belony $5,000 in past and future pain and suffering. Belony moved for additur pursuant to section 768.043 of the Florida Statutes.

At the hearing on the motion, the trial judge expressed "shock" at the pain and suffering award and expressed his view that the jury must have been "coldblooded" to return such a low verdict. After some reflection, the trial court increased the pain and suffering award to Belony to a total amount of $250,000. The written order reflects that additur was granted because the pain and suffering award shocked the conscience of the court.

Analysis

Damages for pain and suffering are difficult to calculate, have no set standard of measurement, and for this reason are uniquely reserved to a jury for their decision. See Pitcher v. Zappitell, 160 So. 3d 145, 147 (Fla. 4th DCA 2015) ("[P]ain and suffering damages are discretionary and there are no 'specific measures to quantify such damages.' "); Gen. Foods Corp. v. Brown, 419 So. 2d 393, 394 (Fla. 1st DCA 1982) (stating that damages for pain and suffering are "peculiarly within the province of the jury"). When attempting to quantify a damage award for pain and suffering in a personal injury case, the trier of fact deals with the most intangible element of the award. One court has described it as "an attempt to 'measure that which is immeasurable.' " Food Fair Stores, Inc. v. Morgan, 338 So. 2d 89, 92 (Fla. 2d DCA 1976). For this reason, a pain and suffering verdict is "clothed with a presumption of regularity and is not to be disturbed if supported by the evidence." Republic Servs. of Fla., L.P. v. Poucher, 851 So. 2d 866, 869 (Fla. 1st DCA 2003).

The well-established test for determining the adequacy of a jury verdict is simply "whether a jury of reasonable [persons] could have returned that verdict." Griffis v. Hill, 230 So. 2d 143, 145 (Fla. 1969). The familiar refrain that the trial court "cannot sit as a seventh juror" applies. Terry Plumbing & Home Servs., Inc., v. Berry, 900 So. 2d 581, 585 (Fla. 3d DCA 2004).

In this case, there is no basis on which to conclude, as a matter of law, that a jury of reasonable persons could not have reached a $5,000 award for pain and suffering on the evidence presented. The record in this case does not establish the jury was improperly influenced by prejudice, passion, or corruption. Belony was a stoic plaintiff whose injuries healed quickly and, after a three month recovery, had no need of future medical treatment. Although Belony suffered a severe, permanent injury in the car accident, he has proven to be resilient in his recovery and by the time of trial, felt "almost normal." Therefore, the jury did not act unreasonably in concluding, as it did, that $5,000 was a reasonable award for Belony's past and future pain and suffering.

Reversed and remanded for reinstatement of the jury verdict.
__________________

1. A halo is "an orthopedic device used to immobilize the head and neck (as to treat fracture of neck vertebrae) that consists of a metal band placed around the head and fastened to the skull usually with metal pins and that is attached by extensions to an inflexible vest." Merriam-Webster Medical Dictionary, http://www.meriam-webster.com/medical/halo (last visited Sept. 1, 2015).




 



* * *