41
Fla. L. Weekly D1062aTop of Form

Torts
— Automobile accident — Evidence — Expert scientific evidence — Causation
of injury — Trial court abused discretion in refusing to allow expert
biomechanical engineer, who was also an expert medical doctor, to render an
opinion as to the specific causation of plaintiff’s injury based on
biomechanical force analysis — Limitation of testimony was harmless error —
Attorney’s fees — It was error to award attorney’s fees to plaintiff pursuant
to proposal for settlement where proposal was ambiguous with regard to whether
proposal was inclusive of attorney’s fees and costs

ANDREW MAINES and KENNETH MAINES, Appellants, v. MARCIA
DRASKO FOX, Appellee. 1st District. Case Nos. 1D14-5917, 1D15-0739. Opinion
filed May 3, 2016. An appeal from the Circuit Court for Okaloosa County. John
T. Brown, Judge. Counsel: Caryn L. Bellus and Bretton C. Albrecht of Kubicki Draper,
P.A., Miami, for Appellants. C. Paul Brannon and W. Dennis Brannon of Brannon
& Brannon, Ft. Walton Beach, and Charles F. Beall, Jr. of Moore, Hill &
Westmoreland, P.A., Pensacola, for Appellee.

(WOLF, J.) Appellants, defendants in the trial court, challenge
a final judgment in a case which arose out of a motor vehicle accident for
which liability was admitted, and the major point of contention was whether the
accident caused appellee’s injury. Appellants assert that the trial court erred
in 1) admitting testimony regarding why appellant Andrew Maines ran the red
light, causing the accident; 2) improperly limiting the testimony of
appellants’ expert concerning the specific causation of appellee’s injury; and
3) awarding attorney’s fees based on the rejections of appellee’s October 8,
2013, proposals for settlement.

We find no error in allowing testimony concerning why
appellant Andrew Maines ran the red light because under the circumstances of
the case, the testimony was pertinent to Andrew’s speed, which was relevant to
whether the accident caused appellee’s injury. We, therefore, affirm as to this
issue without further comment.

As to the expert testimony, we determine the trial court
abused its discretion in refusing to allow the expert biomechanical engineer,
who was also an expert medical doctor, to render an opinion as to the specific
causation of appellee’s injury but find the error was harmless, because the
expert was allowed through other testimony to convey substantial portions of
his opinion to the jury.

As to the attorney’s fees issue, we determine the offers of
settlement were internally inconsistent and ambiguous, so the trial court erred
in awarding attorney’s fees based on appellants’ rejections of the offers.

I.
General Facts

This case arose out of an automobile accident that occurred
when appellant Andrew Maines ran a red light and hit two cars, one a vehicle
driven by appellee, Marcia Fox. Appellee filed suit, claiming Andrew Maines was
negligent in causing the accident and that his father, Kenneth Maines, was
vicariously liable as the vehicle owner. Appellee claimed she was permanently
injured and required neck surgery as a result of the accident. Appellants
admitted liability but denied the accident caused appellee’s injury. Both sides
presented expert testimony concerning the causation of the injury and need for
surgery, which will be more fully described later on in this opinion.

The jury returned a verdict finding appellee suffered a
permanent injury and awarded her a total of $143,896.32. Appellee moved for an
award of attorney’s fees pursuant to section 768.79, Florida Statutes (2013),
based on wrongful rejection of her previously filed settlement proposals. The
trial court granted the motion.

II.
Testimony of Expert Witnesses

Both sides presented expert testimony as to the cause of
appellee’s injury. Appellee presented the testimony of her treating
chiropractor, Dr. Kelly-Dukes. Dr. Poelstra, who performed neck surgery on
appellee, also testified. Both doctors opined the automobile accident was the
cause of appellee’s injury.

Notably, Dr. Poelstra explained to the jury that he had
extensive expertise not only as an orthopedic surgeon but also as a biomedical
engineer with specialized knowledge regarding the effect of external forces on
the human spine. He opined that appellee suffered a permanent neck injury, a
disc herniation, as a result of a traumatic event (meaning the accident), which
caused her need for neck surgery and which would likely require a second
surgery in the future. He further testified that such an injury could be caused
by a minimal amount of external force or trauma.

He explained that because there is always a delay between
the movement of a person’s body and her head, a low-speed collision can cause a
significant injury, “because the simple mass times a little bit of velocity, if
it’s only even five miles an hour is a tremendous force on the human body.”
Although he later admitted that he did not analyze the forces in this accident,
he further opined that even a five-mile-per-hour impact “can have a tremendous
impact on the human body, simply because we’re small, the car is big, so the
kinetic energy on the body is huge.”

Appellants presented two expert witnesses, Dr. Keller, a
medical doctor, and Dr. Bowles, a biomechanical engineer and medical doctor.

Dr. Keller testified that he did not believe the motor
vehicle accident caused appellee’s cervical injury; rather, he believed
appellee’s preexisting condition of degenerative disc disease was the cause.
Dr. Keller relied on appellee’s medical records as well as her account of the
accident in formulating an opinion.

Dr. Bowles, a biomechanical engineer and medical doctor,
planned to offer expert causation testimony in part based on a force analysis
that he conducted using his expertise as both a biomechanical engineer and a
medical doctor. His opinion was that the forces at play in the accident were
too minimal to cause the specific injury suffered by appellee.

Appellee presented a challenge to the reliability of Dr.
Bowles’ planned causation testimony pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), alleging that Dr. Bowles’
method of using his force analysis results to come to specific medical
causation conclusions was not reliable because medical doctors, when
determining causation, do not normally rely on force analyses. Appellee alleged
that by using his biomechanical background to testify as to specific medical
causation, Dr. Bowles was creating a new type of expertise that had not been deemed
reliable by the scientific community.

After holding a hearing on the Daubert challenge, the
trial court found that Dr. Bowles improperly “bridged” the fields of
biomechanical engineering and medicine by relying on his own force analysis to
determine appellee’s injury was not caused by the accident without proving the
reliability of using force analysis calculations to determine specific
causation. The trial court thus limited Dr. Bowles’ testimony, preventing him
from testifying as to his opinions regarding specific causation of this
particular injury; the court, however, permitted Dr. Bowles to testify
regarding his force calculations of the accident and his belief that the forces
in effect during this particular accident would not have been severe enough
generally to cause the injury alleged by appellee.

It is important to analyze specifically what testimony Dr.
Bowles was allowed to present to the jury without objection and what was
excluded. Specifically, Dr. Bowles informed the jury that part of his job as a
biomechanical engineer and accident reconstructionist was to determine what
specific forces were at work on the human body during an accident:

A:
[A]ccident reconstruction [ ] is applying the collision physics to understand
— looking at vehicles and roadways and diagrams and putting together how
vehicles collide and understanding the physics behind that and then
understanding things like the forces and the nature of movement that are caused
by vehicles that collide.

Q:
And is part of what you do examine the forces that are exerted on the human
body during an automobile accident?

A:
Yes.

Dr. Bowles also testified that he was “prepared today to
discuss the forces that would have been applied to a person in [appellee’s]
vehicle at the time of the accident.” (Emphasis added).

Dr. Bowles also informed the jury of the specific forces at
work in the accident and how those forces affected appellee’s vehicle. Dr.
Bowles testified that appellee’s vehicle was hit by appellant Kenneth Maines’
vehicle “with a force level that’s between about seven thousand and thirteen
thousand pounds.” He then specified how that force level would affect an
occupant of appellee’s vehicle:

Q:
In an Infiniti such as the one that Ms. Fox was driving, how would that force
affect an occupant of the cabin?

A:
Well, the occupant moves as a result of the vehicle moving out from under them.
So at that level, that force applied in an impact would cause the vehicle to
slide over the road and move up to a speed of three point one miles per hour as
a result of that type of impact. And it would do that over about one hundred
milliseconds . . . over that length of time, that amount of movement would
accelerate the vehicle by an acceleration rate of about two point three Gs, and
that’s an acceleration measure, in other words, how abruptly the speed changes.

Dr. Bowles next informed the jurors that a speed change rate
of 2.3 Gs was minuscule, a force amount comparable to the forces people
normally encounter doing day-to-day activities:

So
when you corner a vehicle or when you step on the brake at a stoplight, you’re
usually seeing about point seven G. And then if you go over railroad tracks or
if you ride public transportation where you’re standing up and holding on to a
pole and it — and the vehicle changes direction, the occupant or the person
riding in the vehicle will experience an acceleration that’s in this range,
two-and-a-half Gs is not unusual. If you pay money to go to Six Flags or
Disney, roller coasters will put [sic] about three-and-a-half Gs.

The jurors were also informed of the minimum force level
required to cause a cervical disc injury like the one suffered by appellee, and
that the minimum force level was “substantially higher energy than what we’re
talking about here”:

Well,
in order to cause the disc injury, you have to push on it hard enough that you
cause anatomical damage . . . it usually takes a vertical drop. So an
acceleration as in the range of about twelve Gs for the disc to begin to
structurally fail or you have to have some sort of movement that is in a
direction that pulls the head and the neck in a way that’s different than the
shoulders and the torso. And that ends up with lateral accelerations that can
be in the six to eight Gs to start that process.

Finally, the jurors learned that Dr. Bowles believed only an
extraordinarily fragile person would suffer a cervical disc injury at the force
level caused by the accident:

Well,
this level, again, is well within what you would experience in an ordinary day
of travels across a railroad tracks, potholes and those sorts of things. Your
head and neck will see accelerations that are in this level — in this range.
And so, again, are there people who are so fragile that they could become
symptomatic simply riding around in a car? There are some people that are that
fragile. So I think that the bell curve of human experience, there might be
some very, very fragile people out there so some people might be susceptible.

Thus, Dr. Bowles was able to testify as to five key facts:
(1) the point of his biomechanical engineering analysis was to determine what
forces would have impacted a person in appellee’s vehicle at the time of the
accident; (2) the specific acceleration rate of 2.3 Gs was applied to
appellee’s vehicle as a result of the accident; (3) the minuscule amount of
force that 2.3 Gs would cause was roughly equivalent to riding public
transportation or driving over railroad tracks; (4) significantly higher forces
than the ones at work in the accident were necessary to cause resulting
cervical disc injury; and (5) only an extremely fragile human being could have
sustained an injury similar to that allegedly sustained by appellee as a result
of the accident.

The only testimony excluded was that the forces from this
particular accident could not have caused the injury to this specific
plaintiff.

III.
Daubert Analysis

A trial court’s exclusion of expert testimony is reviewed
for an abuse of discretion. Baan v. Columbia County, 180 So. 3d 1127
(Fla. 1st DCA 2015). In the instant case, the expert’s opinion was challenged
pursuant to Daubert, 509 U.S. 579. The Daubert standard for
admissibility was adopted by the Legislature in section 90.702, Florida
Statutes (2014).* See Giaimo v. Fla. Autosport, Inc. 154 So. 3d
385, 387-88 (Fla. 1st DCA 2014). That section provides that expert witness
opinion testimony is admissible if:

(1)
The testimony is based upon sufficient facts or data;

(2)
The testimony is the product of reliable principles and methods; and

(3)
The witness has applied the principles and methods reliably to the facts of the
case.

Under Daubert, a trial court exercises a gatekeeping
function to “ensure that any and all scientific evidence is not only relevant,
but reliable.” Daubert, 509 U.S. at 589. In doing so, the trial court
may look at both underlying scientific reliability and whether “ ‘there is
simply too great an analytical gap’ between the underlying science and the
expert’s opinion.” C. Ehrhardt, Florida Evidence § 702.3 (2015 ed.) (quoting Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Where evidence is based on
reliable principles and methods and is reliably applied to the facts of the
case, the trial court errs in excluding such evidence. Baan, 180 So. 3d
at 1134.

Here, it was undisputed that the underlying biomechanical
calculations of Dr. Bowles were reliable. It was also undisputed and unobjected
to that Dr. Bowles, as a biomechanical engineer, could testify that the forces
involved in the accident would not generally cause the type of injury suffered
by appellee. Further, Dr. Bowles was also an expert medical doctor who could
presumably have given an opinion, as the other doctors did, based on medical
records and patient history, as to whether this accident caused the specific
injury in question.

In analyzing whether Dr. Bowles could have also relied on
his force calculations to give his specific causation opinion, it may be
helpful to view what biomechanical engineers and doctors are normally allowed
to testify to in addition to any limitations and reasons why.

It is undisputed that biomechanical opinions as to the
general causation of a type of injury are admissible. In Council v. State,
98 So. 3d 115, 116 (Fla. 1st DCA 2012), we specifically recognized that a
biomechanical expert is qualified to opine on the general mechanism of an
injury. In Houghton v. Bond, 680 So. 2d 514, 521 (Fla. 1st DCA 1996), we
accepted similar testimony. See also Zane v. Coastal Unilube, Inc.,
774 So. 2d 761 (Fla. 4th DCA 2000).

Biomechanical experts are not, however, allowed to render opinions
that require medical expertise. For instance, in Mattek v. White, 695
So. 2d 942 (Fla. 4th DCA 1997), the court held an accident reconstructionist
could not testify as to the permanency of an injury. See also Stockwell
v. Drake, 901 So. 2d 974 (Fla. 4th DCA 2005) (holding a biomechanical
engineer could not testify as to specific causation or extent of injury).
Issues such as permanency and severity of an injury require medical evaluation
of the patient, the patient’s history, and the particulars related to a
specific person which go beyond the typical expertise of a biomechanical
engineer. Dr. Bowles admitted as much in his testimony when stating that force
projections alone would not support an expert opinion as to specific
causation.

We do, however, allow medical experts to give opinions as to
specific causation, as noted by appellee’s counsel during the Daubert
hearing:

He’s
a hybrid. He has the education, training, experience as a biomechanical
engineer, and he’s also a medical doctor, board-certified surgeon with spinal
surgery. And what we’re saying is we have no objection to him offering
testimony regarding the general forces that the general public or the plaintiff
would have experienced. But when you go over to what injuries were, in fact, caused
in the accident, you’re sliding into the medical arena. And this is when Dr.
Bowles can use his expertise, his qualifications, his experience as a medical
doctor to say, I’ve reviewed the medical records, and I believe that these
injuries were or were not caused in the motor vehicle accident. But when a
medical doctor relies upon an accident reconstruction and a force analysis to
come to a conclusion that these injuries weren’t caused in the motor vehicle
accident, you’re creating a whole new brand of expert specialty, a new science.

(Emphasis added).

It is also not unusual for doctors to rely on anecdotal
evidence of the history and severity of an accident in rendering a causation
opinion. As noted by Dr. Keller, appellants’ second expert witness, medical
doctors often rely on a patient’s account of the underlying incident to
formulate their opinions as to specific injury causation: “[Orthopedic
surgeons] take into account the mechanism of injury in assessing a patient’s
injury . . . . I would typically ask if the airbags deployed, how much damage
was done to the car, if they’re in a car.”

Dr. Bowles’ consideration of specifically calculated
biomechanical force analysis factors, the underlying methodology of which was
not challenged by appellee, was simply a more accurate measure of the factors
already considered by doctors to render causation opinions.

Because appellee did not challenge the underlying scientific
methods used by Dr. Bowles in conducting his biomechanical force analysis, and
because Dr. Bowles’ reliance on that unchallenged force analysis was simply a
more accurate measure of factors normally relied upon by medical doctors to
determine specific causation, we find the trial court’s limitation of Dr.
Bowles’ testimony was an abuse of discretion. However, we find that the
limitation of the testimony was harmless error.

IV.
Harmless Error

In civil cases, any error is harmful “[u]nless the
beneficiary of the error proves that there is no reasonable possibility that
the error contributed to the verdict.” Special v. W. Boca Med. Ctr., 160
So. 3d 1251, 1256-57 (Fla. 2014).

Here, we find appellee successfully proved there was no
reasonable possibility that the trial court’s limitation of Dr. Bowles’
testimony contributed to the jury’s verdict for two reasons: (1) despite the
limitation of testimony, the jury was nonetheless presented with all of the
relevant facts; and (2) the admitted testimony of Dr. Bowles sufficiently
portrayed to the jury his opinions as to causation.

As previously noted, Dr. Bowles testified as to all of his
force calculations and the methodology utilized in determining the G-force
exerted on the vehicle. He was also able to explain in detail how such force
related to forces our bodies encounter in everyday life. Thus, the jury was
presented with all of the relevant facts, including the minimal forces at work
in the accident which Dr. Bowles believed were unlikely to cause injury to a
person unless she was extremely fragile, as well as Dr. Keller’s opinion that
the accident did not cause appellee’s injury.

Dr. Bowles’ proffer offered very little additional evidence
that he had not covered in his admitted testimony. In Dr. Bowles’ proffer, he
discussed many of the factors about which he was actually able to testify,
including the fact that, as a biomechanical engineer, he “had to have an
understanding of the collision event itself and how the vehicle moved, as well
as correlate that with the patterns of injuries that [appellee] had,” and his
belief that knowing the force of an accident “leads you to an idea of the
relative risk” of a person potentially sustaining injuries; however, “it
doesn’t tell you whether somebody is really lucky and gets off scott-free [sic]
or whether or not they were a fragile egg who was unfortunately injured by
something that would not have caused injury to the majority of people.”

Had Dr. Bowles’ testimony not been improperly limited, the
only additional information he would have testified to, as noted in his
proffer, would have been his specific causation opinion: “It’s my opinion that
[appellee] did not suffer an acute traumatic injury as a result of the impact”;
however, she did suffer non-permanent muscle strain as “the result of her
seeing the vehicle come, bracing, and then whatever movement happens in her
vehicle.”

Thus, despite the limitation of his testimony, because Dr.
Bowles was able to present to the jury all relevant factors he deduced from his
force analysis calculations and to opine that only an extremely fragile person
could have sustained an injury like appellee’s from the motor vehicle accident,
we find the erroneous limitation of Dr. Bowles’ testimony could not reasonably
have contributed to the jury’s verdict. As such, we find the trial court’s
error was harmless and affirm the judgment as to liability and damages.

V.
Attorney’s Fees Based on Proposals for Settlement

Appellants challenge the trial court’s award of attorney’s
fees to appellee based on appellee’s October 2013 proposals for settlement, to
which appellants never responded. Appellants allege, among other things, that
the award of attorney’s fees should not have been given to appellee because the
proposals for settlement contained improper ambiguities. We agree.

A trial court’s ruling on a motion to tax attorney’s fees
and costs pursuant to the offer of judgment statute is reviewed de novo. See
Paduru v. Klinkenberg, 157 So. 3d 314, 316 (Fla. 1st DCA 2014).

Section 768.79 and Florida Rule of Civil Procedure 1.442
govern the form and content of proposals for settlement. Strict adherence to
section 768.79 and rule 1.442 is required of proposals for settlement. Borden
Dairy Co. v. Kuhajda, 171 So. 3d 242, 243 (Fla. 1st DCA 2015). The rule of
strict compliance is a bright-line rule. Colvin v. Clements & Ashmore,
P.A., 182 So. 3d 924 (Fla. 1st DCA 2016).

Both section 768.79 and rule 1.442 require that certain
elements of proposals for settlement be stated with particularity. For example,
rule 1.442(c)(2) specifically requires “any relevant conditions” and “all
nonmonetary terms of the proposal” to be stated with particularity; rule 1.442
also requires proposals for settlement to “state whether the proposal includes
attorneys’ fees and whether attorneys’ fees are part of the legal claim.” Fla.
R. Civ. P. 1.442(c)(2)(C), (D), (F).

When considering what degree of particularity the rule
requires, the supreme court has held that “ ‘[t]he rule intends for a proposal
for judgment to be as specific as possible, leaving no ambiguities so that the
recipient can fully evaluate its terms and conditions.’ ” State Farm Mut.
Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006) (quoting Lucas
v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA 2002)). Though elimination of all
ambiguity might be impossible, a proposal must nonetheless “be sufficiently
clear and definite to allow the offeree to make an informed decision without
needing clarification. If ambiguity within the proposal could reasonably affect
the offeree’s decision, the proposal will not satisfy the particularity
requirement.” Id.; see also Audiffred v. Arnold, 161 So.
3d 1274, 1279 (Fla. 2015).

Here, we find the October 8, 2013, proposals for settlement
contained patent ambiguities which could reasonably have affected appellants’
decisions not to accept them; the proposals were ambiguous as to whether they
were inclusive of attorney’s fees and costs.

Paragraph 4 of the proposals provided that no attorney’s
fees or costs would be taxed against appellants. However, Paragraphs 10 and 11
contradicted Paragraph 4. Paragraph 10 implied that attorney’s fees could be
taxed against appellants at a later time, despite the statement in Paragraph 4
that no attorney’s fees would be taxed against appellants: “Attorney fees at
this time are not part of any claim being asserted by Plaintiff and,
therefore, this Proposal does not include any claim for attorney fees.”

Further, Paragraph 11 contradicted the claim in Paragraph 4
that no costs would be taxed against appellants by stating, “This Proposal is
inclusive of costs.” There was no mention that the proposals were inclusive of
attorney’s fees.

We find these ambiguities regarding attorney’s fees and
costs left appellants unable to fully evaluate the proposals’ terms and
conditions. Further, the ambiguities prevented the proposals from strictly
comporting with the requirements of rule 1.442 that proposals for settlement
“state whether the proposal includes attorneys’ fees and whether attorneys’
fees are part of the legal claim” and “state with particularity any relevant
conditions.”

Because of their patent ambiguities as to attorney’s fees
and costs, we find the October 2013 proposals for settlement invalid and
therefore vacate attorney’s fees based on those proposals awarded by the trial
court; however, we vacate without prejudice for the trial court to evaluate any
other proposals for settlement that were presented to appellants by appellee.

AFFIRMED, but the award of attorney’s fees is VACATED. (ROWE
and RAY, JJ., CONCUR.)

__________________

*The constitutionality of this statute is not at issue in
this appeal.

* *
*