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December 19, 2012


Error to Deny Insurer's Motion For Remittitur or New Trial Where
Verdict's Award of Damages For Future Medical Expenses Not Supported by Evidence


On November 28, 2012, the 2d DCA held that the trial court erred in denying the insurer's motion for remittitur or new trial since the jury's award of damages for future medical expenses was not supported by the evidence. At trial, the jury awarded plaintiff damages for future medical expenses related to injuries she sustained in a rear end collision.

In response, GEICO filed a motion for remittitur challenging the jury's award, which the trial court denied. On appeal, GEICO contended that the trial court should have granted its motion because plaintiff did not establish future damages with reasonable certainty and that even if she had, the amount awarded was not supported by evidence.

The 2d DCA held that where a plaintiff seeks damages for future medical expenses, only medical expenses that are reasonably certain to be incurred in the future are recoverable. The 2d DCA further stated that there also must be an evidentiary basis upon which a jury can, with reasonable certainty, determine the amount of those expenses.

Two physicians offered testimony regarding plaintiff's future medical care. The first physician who testified for plaintiff did not testify that plaintiff required any treatment, but instead reiterated his testimony that patients who have had the same type of surgery that plaintiff had "may" continue to experience neck problems. The 2d DCA held that this testimony did not establish that plaintiff was "reasonably certain" to incur expenses for the injuries to plaintiff's neck in the future.

The second physician testified that plaintiff would "probably" require injections for pain management and that there was a "good chance" that plaintiff would need surgery in the future at a cost of $50,000 to $60,000. The 2d DCA held that this testimony established that plaintiff was reasonably certain to need some treatment in the future, but it failed to establish with reasonable certainty the "amount" of future medical expenses.

The 2d DCA held that the testimony from these two experts was too speculative to award future medical expenses and reversed and remanded the judgment to the trial court.

 

This summary was prepared by Greg R. Schmitz of our firm.


Greg R. Schmitz

Below my signature block you will find the opinion.


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37 Fla. L. Weekly D2715a


Insurance -- Uninsured motorist -- Damages -- Trial court erred in denying insurer's motion for remittitur or new trial where verdict's award of damages for future medical expenses was not supported by evidence -- Where damages are sought for future medical expenses, only medical expenses that are reasonably certain to be incurred in the future are recoverable

GEICO INDEMNITY COMPANY, Appellant, v. POLLIE DeGRANDCHAMP, Appellee. 2nd District. Case No. 2D10-6097. Opinion filed November 28, 2012. Appeal from the Circuit Court for Pinellas County; George M. Jirotka, Judge. Counsel: Dorothy V. DiFiore and Penelope T. Rowlett of Haas, Lewis, DiFiore & Amos, P.A., Tampa; and Joseph F. Kinman, Jr., of Ogden & Sullivan, P.A., Tampa, for Appellant. Celene H. Humphries and Tyler K. Pitchford of Brannock & Humphries, Tampa; and Tony Griffith, Drew Tanney, and Brian Guenther of Tanney & Griffith, P.A., Clearwater, for Appellee.

(KELLY, Judge.) A jury awarded damages to Appellee Pollie DeGrandchamp for injuries she suffered when her car was struck from behind by another car. Appellant, GEICO Indemnity Company, which provided uninsured/underinsured motorists' coverage to DeGrandchamp, raises three issues in this appeal from the judgment entered against it and in favor of DeGrandchamp; however, we find merit only in GEICO's argument that the trial court abused its discretion when it denied its motion for remittitur or a new trial.

After the jury returned a verdict awarding DeGrandchamp $1,250,000 in future medical expenses, reduced to a present value of $250,000, GEICO filed a motion for remittitur challenging the jury's award, which the trial court denied. In this appeal, GEICO contends the trial court should have granted the motion because DeGrandchamp did not establish these damages with reasonable certainty, and that even if she had, the amount awarded was not supported by the evidence. We review a trial court's ruling on a motion for remittitur under an abuse of discretion standard. Truelove v. Blount, 954 So. 2d 1284, 1287 (Fla. 2d DCA 2007).

Where a plaintiff seeks damages for future medical expenses, only medical expenses that are reasonably certain to be incurred in the future are recoverable. Loftin v. Wilson, 67 So. 2d 185, 188 (Fla.1953); Truelove, 954 So. 2d at 1287. There must also be an evidentiary basis upon which the jury can, with reasonable certainty, determine the amount of those expenses. Loftin, 67 So. 2d at 188. While DeGrandchamp established that she was reasonably certain to incur at least some medical expenses in the future, we can find no evidentiary basis to support the amount of the jury's award in this case.

Two physicians offered testimony regarding DeGrandchamp's future medical care. Dr. Foley, an interventional radiologist, testified that it was reasonably certain that in the future DeGrandchamp would continue to experience problems with her neck. When asked about future treatment, however, he testified generally that "for a patient like this, if they continued to have symptoms . . . I would probably consider doing a nerve root block." He then went on to testify that typically such a patient initially gets two rounds consisting of six shots and "hopefully" after that they are satisfied with the level of pain relief but that "some patients come back every year for one or two more injections, or every other year." When asked to specifically describe what he expected would be DeGrandchamp's future course of treatment "within a reasonable degree of medical probability" Dr. Foley did not testify that she required any treatment but instead reiterated his testimony that patients who have had the same type of surgery can continue to experience neck problems. This testimony does not establish that DeGrandchamp is "reasonably certain" to incur expenses for this treatment in the future. See Truelove, 954 So. 2d at 1287; see also Fasani v. Kowalski, 43 So. 3d 805, 812 (Fla. 3d DCA 2010) ("It is a plaintiff's burden to establish that future medical expenses will more probably than not be incurred.").

The second physician who testified regarding future medical treatment, Dr. Colbassani, said that it was reasonably certain that DeGrandchamp will need some treatment for her neck the rest of her life including physical therapy, "probably" injections, and "possibly" surgery. He indicated that there was a "good chance" DeGrandchamp would need surgery in the future at a cost of $50,000 to $60,000. He was unable to testify regarding the cost of anything other than the surgery. While this testimony establishes that DeGrandchamp is reasonably certain to need some treatment in the future, it does not establish with reasonable certainty the amount of medical expense she is likely to incur. While Dr. Colbassani did estimate the cost of surgery, his testimony established only the possibility that DeGrandchamp will need the surgery. See Truelove, 954 So. 2d at 1287; see also Fasani, 43 So. 3d at 812.

DeGrandchamp's closing argument to the jury highlights the speculative nature of the evidence and consequently, the jury's award:

So it's [her neck] going to continue to cause more problems of degeneration above and below. She's going to need physical therapy. She's going to likely need injections again. Surgery is possible. That is why we talked about life expectancy, mortality. . . . Forty-six years that she still has to live with this in her neck continuing to cause problems now in the areas above and below. The amount I would suggest for future medical expenses -- this gives you, this $80,000 figure, $90,000 figure, the total that's happened in the last two and a half years, just over three years. . . . What's the next 46? I suggest you can use that as something to guide you.

This argument is the only explanation for the jury's award of $1,250,000.

"When a jury award of damages is clearly excessive or inadequate in actions arising out of the operation of motor vehicles, the trial court shall, upon proper motion, order a remittitur or additur of the jury's award." Truelove, 954 So. 2d at 1287. See § 768.043(1), Fla. Stat. (2006). Because the award here was greater than what was reasonably supported by the evidence, the trial court should have granted GEICO's motion for remittitur. Given the absence of evidence, highlighted by DeGrandchamp's closing argument, it appears that the "trier of fact . . . arrived at the amount of damages by speculation or conjecture." § 768.043(2)(c). Additionally, the amount awarded does not "bear [ ] a reasonable relation to the amount of damages proved and the injury suffered." § 768.043(2)(d). Finally, the amount awarded is not "supported by the evidence and is [not] such that it could be adduced in a logical manner by reasonable persons." § 768.043(2)(e). Accordingly, we reverse the final judgment and remand for the trial court to enter an order of remittitur or alternatively an order granting a new trial on the issue of damages for future medical expenses.

Reversed and remanded. (WALLACE and CRENSHAW, JJ., Concur.)


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