43 Fla. L. Weekly
D238a

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Insurance
— Uninsured motorist — Damages — Evidence of medical treatment insured might
possibly need in the future was insufficient to sustain award of damages for
future medical expenses — Award of damages for future medical expenses is
limited to expenses reasonably certain to be incurred — Remand for trial court
to either grant insurer’s motion for remittitur or conduct new trial limited to
determination of future medical expenses

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v. BRENDA HARMON, Appellee. 5th District. Case Nos. 5D16-2948, 5D17-209.
Opinion filed January 26, 2018. Appeal from the Circuit Court for Putnam
County, Scott C. Dupont, Judge. Counsel: Rhonda B. Boggess, and Gina P.
Grimsley, of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant. Leslie
H. Morton, Robert L. McLeod, II, and Seth B. Dempsey, of The Mcleod Firm, St.
Augustine, for Appellee.

(PER CURIAM.) State Farm Mutual Automobile Insurance Company
appeals the final judgment and the trial court’s order denying its motion for
new trial and remittitur. We affirm as to all issues except for the trial
court’s failure either to grant the remittitur or to order a limited new trial
because there was insufficient evidence to sustain the jury’s verdict awarding
future medical expenses in the amount of $100,000. For the reasons set forth
below, we affirm in part, reverse in part, and remand for further proceedings.

Brenda Harmon sued State Farm, her insurer, seeking
underinsured motorist benefits following her collision with an underinsured
driver. While the negligence of the adverse driver was admitted, State Farm
contested injury causation and related damages. The jury awarded Ms. Harmon
$685,800, which included $158,000 for past medical expenses and $100,000 for
future medical expenses.

State Farm challenges rulings made during trial regarding
whether the scope of one expert’s testimony was properly disclosed prior to
trial, whether a treating physician could testify regarding why he referred Ms.
Harmon to a neurosurgeon, and whether comments Ms. Harmon’s counsel made during
closing argument were unfairly prejudicial. The standard of review is abuse of
discretion for each of these issues. See Binger v. King Pest Control,
401 So. 2d 1310, 1313-14 (Fla. 1981) (explaining the standard of review for
expert witness disclosure); City of Orlando v. Pineiro, 66 So. 3d 1064,
1068 (Fla. 5th DCA 2011) (explaining the standard of review for improper
closing argument); Crowe v. Lowe, 942 So. 2d 903, 905 (Fla. 4th DCA
2006) (explaining the standard of review for admissibility of evidence). Under
the specific facts of this case, we find no abuse of discretion as to any of
those issues, and we affirm without further discussion.

However, we find that the trial court erred by denying State
Farm’s motion for new trial or for remittitur regarding the jury’s award of
$100,000 for future medical expenses. Ms. Harmon presented the testimony of her
treating physician, Dr. Collier, to lay a foundation for an award of future
medical expenses. Dr. Collier testified that Ms. Harmon would need certain care
in the future, such as routine follow-up visits with her doctors on a schedule
approximating the one she followed post-accident. Dr. Collier agreed with Ms.
Harmon’s counsel that his prior billing could reflect the cost of those
probable future visits. Additionally, Dr. Collier testified that Ms. Harmon may
need different modalities of treatment in the future that might include trigger
point injections, which might possibly be of benefit along with other
treatments that might be indicated in the future. Again, Dr. Collier
agreed with Ms. Harmon’s counsel that a review of his past medical bills,
totaling $35,947, could define the costs of those possible treatments that may
occur in the future.

Because “Florida law restricts recovery of future medical
expenses to those expenses ‘reasonably certain’ to be incurred,” there was no
evidentiary basis for those potential future medical expenses. Volusia Cty.
v. Joynt, 179 So. 3d 448, 452 (Fla. 5th DCA 2015). “Testimony or evidence
that certain treatments might possibly be obtained in the future cannot
merit an award of future medical expenses.” Gen. Emps. Ins. Co. v. Isaacs,
206 So. 3d 62, 63 (Fla. 4th DCA 2016). The trial court also erred in allowing
the award for future care, other than routine follow-up visits, because Dr.
Collier offered no specific or general dollar amount and provided no reliable
means by which the jury could calculate the cost of that potential additional
future medical care. “[T]here must be an evidentiary basis upon which the jury
can, with reasonable certainty, determine the amount of those expenses.” Volusia
Cty., 179 So. 3d at 452. Without any testimony regarding the frequency or
specific type of treatments beyond routine follow-up visits, the jury had no
basis for reaching the dollar amount that it did. See DeAlmeida v. Graham,
524 So. 2d 666, 668 (Fla. 4th DCA 1987), review denied, Reid v.
Graham, 519 So. 2d 988 (Fla. 1987) (holding that past medical expenses
alone do not provide a reasonable basis for jury to draw inferences from to
compute the cost of future medical care).

While there was evidence that Ms. Harmon would probably need
future care, specifically routine follow-up office visits, we find that there
was no competent substantial evidence to support an award of $100,000 for
future medical expenses. Accordingly, we reverse that portion of the final
judgment and remand 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.

We reverse the cost judgment entered below based upon the
specific stipulation of the parties that the cost judgment should be reversed
unless the judgment was affirmed in its entirety. Accordingly, the trial court
may entertain argument and evidence, if necessary, to reconsider the judgment taxing
costs.

AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH
INSTRUCTIONS. COST JUDGMENT REVERSED. (SAWAYA, ORFINGER, and EDWARDS, JJ.,
concur.)

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