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December 29, 2017 by admin

Torts — Automobile accident — Damages — Future medical expenses — Evidence regarding reasonably certain need for and costs of plaintiff’s palliative care was sufficient to support jury’s award of future medical expenses — Evidence was insufficient to support award for loss of future earning capacity where evidence revolved around plaintiff’s fear of losing her job rather than any diminished capacity to continue her employment — Remand for remittitur or new trial on issue of damages for loss of earning capacity

43
Fla. L. Weekly D28cTop of Form

Torts
— Automobile accident — Damages — Future medical expenses — Evidence
regarding reasonably certain need for and costs of plaintiff’s palliative care
was sufficient to support jury’s award of future medical expenses — Evidence
was insufficient to support award for loss of future earning capacity where
evidence revolved around plaintiff’s fear of losing her job rather than any
diminished capacity to continue her employment — Remand for remittitur or new
trial on issue of damages for loss of earning capacity

WILLIAM J. VICKERS, Appellant, v.
ANNIE D. THOMAS, Appellee. 5th District. Case No. 5D15-3610. Opinion filed
December 22, 2017. Appeal from the Circuit Court for Seminole County, Jessica
J. Recksiedler, Judge. Counsel: Angela C. Flowers, of Kubicki Draper, P.A.,
Ocala, for Appellant. Jeffrey M. Byrd and Heather A. Trombly, of Jeffrey M.
Byrd, P.A., Orlando, for Appellee.

(COHEN, C.J.) William Vickers
appeals a final judgment entered against him following a jury verdict in favor
of Annie Thomas. Vickers and Thomas were involved in an automobile accident.
Thomas sued Vickers, claiming bodily injuries as a result of the accident.
Vickers admitted responsibility but disputed that the accident was the cause of
Thomas’s permanent injuries.1 The jury awarded Thomas compensatory
damages, including future medical expenses and future loss of earning capacity.
On appeal, Vickers argues that the trial court abused its discretion in certain
evidentiary rulings, in denying his motions for remittitur, and in denying his
motion for new trial based on Thomas’s counsel’s improper closing argument. We
affirm in part, reverse in part, and remand for a new trial or remittitur on
the issue of damages for future loss of earning capacity.2

“Florida law restricts recovery of
future medical expenses to those expenses reasonably certain to be incurred.” Volusia
Cty. v. Joynt,
179 So. 3d 448, 452 (Fla. 5th DCA 2015) (citing Loftin v.
Wilson,
67 So. 2d 185, 188 (Fla. 1953)). At trial, Thomas presented
evidence of her need for and the costs of continued palliative care, cervical
surgery, and lumbar surgery. The jury awarded her $353,100 for future medical
expenses. Vickers argues that the jury’s award for these damages was
speculative in nature because it was not “reasonably certain” that Thomas would
obtain cervical and lumbar surgery.

Thomas’s pain management doctor, Dr.
Dunson, testified that Thomas’s reasonably certain costs for continued
palliative care would be between $525,000 and $850,000. Thomas’s orthopedic
surgeon, Dr. Masson testified that, while Thomas’s condition was stable,
cervical surgery was appropriate to increase her functional capacity and
quality of life. He also testified that if cervical surgery was successful,
there might not be a need for a follow-up lumbar surgery. However, he explained
that if Thomas’s disability and quality of life issues persisted despite the
cervical surgery and conservative care, lumbar surgery would be the next
reasonable step. Dr. Masson testified that cervical surgery would cost $90,000
to $120,000, and that lumbar surgery would cost $60,000 to $90,000. While
courts cannot allow juries to award amounts of damages beyond what is
reasonably supported by the evidence presented, see, e.g., Festival Fun
Parks, LLC v. Bellamy,
123 So. 3d 684, 685-86 (Fla. 4th DCA 2013), the
evidence presented in this case regarding the reasonably certain need for and
costs of Thomas’s palliative care alone was sufficient to support the jury’s
award of future medical expenses. See Metrolimo, Inc. v. Lamm, 666 So.
2d 552 (Fla. 3d DCA 1995) (upholding future medical expenses award because the
amount awarded was “within the range testified to by the plaintiff’s
witnesses”).

However, we find the evidence of
Thomas’s future loss of earning capacity insufficient. To establish a claim for
loss of future earning capacity, a plaintiff must introduce “reasonably certain
evidence that the capacity to labor has been diminished.” Rasinski v. McCoy,
227 So. 3d 201, 204 (Fla. 5th DCA 2017) (quoting Hubbs v. McDonald, 517
So. 2d 68, 69 (Fla. 1st DCA 1987)). Here, the evidence presented revolved
around Thomas’s fear of losing her job rather than any diminished capacity to
continue her employment; such fear is speculative and cannot serve as a proper
basis for these damages. See Joynt, 179 So. 3d at 451. Therefore, we
reverse the jury award for future loss of earning capacity and remand for the
trial court either to enter a remittitur under section 768.043(2), Florida
Statutes, or to grant a new trial solely on the issue of damages for loss of
earning capacity. See Rasinski, 227 So. 3d at 203 (citing Truelove v.
Blount,
954 So. 2d 1284, 1289-90 (Fla. 2d DCA 2007)).

Lastly, we feel compelled, as we
have in the past,3 to comment upon the closing arguments
made by Thomas’s counsel, Jeffrey Byrd. Leading up to the trial, Thomas had
sought recovery for cervical, lumbar, and shoulder injuries allegedly arising
from the automobile accident. Four days before the trial, she withdrew her
claim for the shoulder injury and successfully obtained a ruling in limine to
prevent discussion of the withdrawn claim. During the defense’s case, Vickers
presented the testimony of Dr. Hurbanis, an orthopedic surgeon specializing in
shoulder surgery, who conducted a compulsory medical examination on Thomas.
During closing arguments, Thomas’s counsel made several comments related to Dr.
Hurbanis’s qualifications to testify about cervical and lumbar injuries as a
shoulder specialist.

While it was appropriate to question
Dr. Hurbanis’s qualifications to address Thomas’s injuries, the closing
argument by Thomas’s counsel improperly attacked Vickers’s counsel’s decision
to hire Dr. Hurbanis as an expert in the case, based on his specialization in
shoulder injuries. This occurred despite the successful motion in limine on the
withdrawn shoulder injury claim. The attack on Vickers’s counsel for electing
to hire Dr. Hurbanis was disingenuous and improper. See Rosario-Paredes v.
J.C. Wrecker Serv.,
975 So. 2d 1205, 1208 (Fla. 5th DCA 2008) (noting that
arguments that attack opposing counsel are not appropriate and will not be
condoned). The trial court sustained Vickers’s objection, but it denied his
request for a curative instruction. Although the trial court incorrectly
declined to give the curative instruction, an improper closing argument will
not result in a new trial unless the statements are highly prejudicial,
inflammatory, and improper. See Riggins v. Mariner Boat Works, Inc., 545
So. 2d 430, 433 (Fla. 2d DCA 1989) (citing Decks, Inc. v. Nunez, 299 So.
2d 165 (Fla. 2d DCA 1974)). Under the circumstances of this case, we find that
the improper comments were not so highly prejudicial and inflammatory as to
deny Vickers a fair trial. The trial court’s failure to give the curative
instruction was harmless on the facts of this case.4 See § 59.041, Fla. Stat.
(2011); Bakery Assocs., Ltd. v. Rigaud, 906 So. 2d 366, 367 (Fla. 3d DCA
2005).

We note that this trial occurred
before our opinion in Rasinski issued. Thomas’s counsel’s closing
arguments have gathered the attention of this Court and if they continue,
should gather the attention of trial courts as well. We caution that the use of
such improper comments, and the effect on a litigant’s right to a fair trial,
will lead to a new trial in the appropriate case. See City of Orlando v.
Pineiro,
66 So. 3d 1064 (Fla. 5th DCA 2011); Johnnides v. Amoco Oil Co.,
778 So. 2d 443 (Fla. 3d DCA 2001).

AFFIRMED IN PART; REVERSED IN PART;
and REMANDED. (EISNAUGLE, J., and EGAN, R., Associate Judge, concur.)

__________________

1Thomas had previously been involved
in an automobile accident after which she sought treatment for neck and back
injuries.

2While certain evidentiary rulings
were erroneous, such as allowing cross-examination of a medical expert with
text the expert did not recognize as authoritative, the errors were harmless. See
§ 59.041, Fla. Stat. (2011); see also Herbello v. Perez, 754 So. 2d 840,
840 (Fla. 3d DCA 2000) (finding that erroneous evidentiary rulings did not
affect outcome of trial; therefore, errors were harmless).

3See, e.g.,
Rasinski,
227 So. 3d at 202 n.1.

4On appeal, Vickers cites to eighteen
comments Thomas’s counsel made during closing arguments warranting reversal for
a new trial. The majority of the comments were unobjected-to, unpreserved for
appeal, and failed to rise to the level of fundamental error. See Murphy v.
Int’l Robotic Sys.,
766 So. 2d 1010 (Fla. 2000). Of the seven comments
preserved for appeal, our ruling on the loss of future earning capacity cures
three of those comments. Additionally, Vickers’s position that Thomas
characterized the defense as a “grand scheme” is not supported by the record.

* * *

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