Torts
— Damages — It was error to award plaintiff damages for lost earning capacity
where plaintiff failed to demonstrate any diminished ability to earn money in
the future and failed to present evidence that would allow jury to quantify the
amount of an award — It was error to award damages for future medical expenses
where there was no evidence that future medical expenses are reasonably certain
to be incurred and no basis upon which jury could have, with reasonable
certainty, determined the amount of any such expenses

VOLUSIA COUNTY, Appellant, v. ERIN JOYNT, Appellee. 5th
District. Case No. 5D14-3403. Opinion filed November 13, 2015. Appeal from the
Circuit Court for Volusia County, Robert K. Rouse, Jr., Judge. Counsel: Kara
Berard Rockenbach and Kristi Bergemann Rothell, of Methe & Rockenbach,
P.A., West Palm Beach, and Francis J. Carroll, Assistant County Attorney,
Deland, for Appellant. John M. Phillips and Thomas C. Roberts, of Law Office of
John M. Phillips, LLC, Jacksonville, for Appellee.

(BERGER, Judge.) Volusia County appeals a final judgment
entered in favor of Erin Joynt in the sum of $2.6 million. The County
challenges only that portion of the judgment awarding damages for lost earning
capacity and future medical expenses. As to those future economic damages, the
County argues there was no reasonable evidence on which the jury could legally
predicate a verdict. We agree.

In July 2011, Joynt was severely injured when she was run
over by a Volusia County Beach Patrol truck while sunbathing.1 Thereafter, Joynt brought a
negligence suit against the County, seeking damages for the injuries she
suffered. Following a four-day trial, the jury awarded $2.6 million in
compensatory damages, broken down as follows: $2 million for past and future
pain and suffering; $500,000 for diminished earning capacity, and $100,000 for
future medical expenses. As previously stated, only the damages awarded for
diminished earning capacity and future medical expenses are in dispute. As to
those claims, the County argues the trial court erred in failing to grant its
motion for directed verdict.

“A motion for directed verdict should be granted only where
there is no reasonable evidence upon which a jury could legally predicate a
verdict in favor of the non-moving party.” Benitez v. Joseph Trucking, Inc.,
68 So. 3d 428, 430 (Fla. 5th DCA 2011) (citing Etheredge v. Walt Disney
World, Co., 999 So. 2d 669, 671 (Fla. 5th DCA 2008)). Our review is de
novo. Seibert v. Riccucci, 84 So. 3d 1086, 1088 (Fla. 5th DCA 2012)
(citing Andrews v. Direct Mail Express, Inc., 1 So. 3d 1192, 1193 (Fla.
5th DCA 2009)).

We begin our analysis with Joynt’s claim for loss of future
earning capacity. On this claim, the jury awarded $500,000 in damages. Florida
allows recovery for future damages for loss of earning capacity. W.R. Grace
& Co.-Conn. v. Pyke, 661 So. 2d 1301, 1304 (Fla. 3d DCA 1995) (citing Renuart
Lumber Yards, Inc. v. Levine, 49 So. 2d 97, 99 (Fla. 1950)). The purpose of
such an award is to “compensate a plaintiff for loss of capacity to earn income
as opposed to actual loss of future earnings.” Id. at 1302. “[T]he
appropriate test is to permit the recovery of future economic damages when such
damages are established with reasonable certainty.” Auto-Owners Ins. Co. v.
Tompkins, 651 So. 2d 89, 91 (Fla. 1995). “A plaintiff must demonstrate not
only reasonable certainty of injury, but must present evidence which will allow
a jury to reasonably calculate lost earning capacity.” W.R. Grace &
Co.-Conn., 661 So. 2d at 1302 (citing Auto-Owners Ins. Co., 651 So.
2d at 91); accord Pruitt v. Perez-Gervert, 41 So. 3d 286, 289 (Fla. 2d
DCA 2010); Truelove v. Blount, 954 So. 2d 1284, 1288 (Fla. 2d DCA 2007);
Hubbs v. McDonald, 517 So. 2d 68, 69 (Fla. 1st DCA 1987) (“A jury instruction
on diminished capacity to earn in the future is warranted when the record
demonstrates the existence of ‘reasonably certain evidence that the capacity to
labor has been diminished and that there is a monetary standard against which
the jury can measure any future loss.’ ” (quoting Long v. Publix Super
Markets, Inc., 458 So. 2d 393, 394 (Fla. 1st DCA 1984))); Allstate Ins.
Co. v. Shilling, 374 So. 2d 611, 613 (Fla. 4th DCA 1979) (holding that
evidence of “some degree of permanent injury is sufficient” but that there also
must exist “some basis upon which the jury can reasonably assess damages”). The
County convincingly argues that Joynt failed to meet her burden. Although she
put on evidence sufficient to establish reasonable injury, Joynt failed to demonstrate
any diminished ability to earn money in the future and failed to present
evidence that would allow the jury to quantify the amount of an award.

Prior to May 2010, Joynt was employed as a paraeducator,
which is a teaching-related position within a school, where she was generally
responsible for specialized or concentrated assistance for students in
elementary and secondary schools. However, at the time of the accident, she was
voluntarily unemployed, earning no income.2

Just over a year after the accident, Joynt resumed her
employment as a reading intervention paraeducator working full-time for $18,000
per year with benefits. Although she faced some physical challenges,3 the record reflects those challenges
did not affect her ability to do her job. Joynt testified that she loved her
job as a paraeducator and intended to continue her employment the following
school year. Joynt’s principal, Brandi Flisram, confirmed that she planned on
having Joynt return to her position for the following school year, opining that
students like her, she is an effective teacher, and her evaluation was above
satisfactory. In fact, Ms. Flisram noted that many of Joynt’s students actually
tested out of the reading intervention program due to her teaching ability. Ms.
Flisram had no concerns about Joynt’s progression as an educator, and she
further testified that none of Joynt’s physical limitations would affect
Joynt’s ability to be promoted, although she would be reevaluated if her health
ever declined.

Joynt relies on the latter part of Ms. Flisram’s testimony
to support the damage award, arguing that a simple review of the trial
transcript by Ms. Flisram, which contained the testimony of various doctors
describing her injuries, would likely cost Joynt her career. She claims the
jury could have surmised that, although optimistic about her future, she is
reasonably certain to lose her job as a paraeducator due to her injuries. To
that end, she asserts the $500,000 award is equivalent to earning $17,241.38
per year, assuming she would have worked until the social security retirement
age of sixty-five. This argument is purely speculative. As the trial court
acknowledged:

Now,
you know, the problem with that is [the jury] may be out for hours anguishing
over this because there’s not really any evidence as to how they could come up
with a number and upon which they could base a number, so what does a full time
teacher make. And it’s, based on this evidence, I think sheer speculation to
say she’s likely to get fired when she gets back. I mean, I guess you can argue
it, but I’m not sure there’s really any evidence that she’s going to be . . . .

. .
. .

What
other evidence is there other than, I guess, you could just kind of speculate
that someone with these injuries — and I don’t diminish her injuries. I’m not
trying to denigrate that at all, but I just don’t know how you can say, well —
what age would they pick out, 50, 55, 45, 60? It just would be pure, abject
speculation, wouldn’t it?

Yes, which is why it was error to submit this claim to the
jury. See W.R. Grace & Co.-Conn., 661 So. 2d at 1303 (finding
“testimony that there was a possibility that [plaintiff] would lose his job was
irrelevant, purely speculative, and inappropriate” and that directed verdict
should have been granted where trial court recognized the evidence submitted by
plaintiff was meager).

We find there was absolutely no testimony presented to
indicate Joynt was completely disabled from further gainful employment as the
result of her injuries or was unable to work to the same age she would have
otherwise. Indeed, the opposite is true. As the County highlights, the evidence
demonstrates that Joynt’s earning capacity did not diminish, but rather
increased after the accident. And, while this fact alone does not necessarily
preclude recovery, see Miami-Dade County. v. Cardoso, 963 So. 2d 825,
828 (Fla. 3d DCA 2007), it certainly makes it more difficult for Joynt to show
an economic loss. See W.R. Grace & Co.-Conn., 661 So. 2d at 1303; Long,
458 So. 2d at 394. Inasmuch as the record fails to establish Joynt’s diminished
earning capacity as a paraeducator, we conclude the jury’s award of $500,000 in
damages for loss of future earning capacity is not supported by competent,
substantial evidence.4

Next, the County argues the trial court erred in failing to
grant a directed verdict on Joynt’s claim for future medical expenses. On this
claim, the jury awarded $100,000 in damages. Florida law permits the recovery
of “[t]he reasonable [value] [or] [expense] of [hospitalization and] medical
[and nursing] care and treatment necessarily or reasonably obtained by
(claimant) in the past [or to be so obtained in the future].” Fla. Std. Jury
Instr. (Civ.) 501.2(b). Florida law restricts recovery of future medical
expenses to those expenses “reasonably certain” to be incurred. Loftin v.
Wilson, 67 So. 2d 185, 188 (Fla. 1953). Therefore, “it follows that a
recovery of future medical expenses cannot be grounded on the mere
‘possibility’ that certain treatment ‘might’ be obtained in the future.” White
v. Westlund, 624 So. 2d 1148, 1150 (Fla. 4th DCA 1993) (citing 2 Damages
in Tort Actions § 9.55(1), at 9-45 (1986)). Further, 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 (“In every case,
plaintiff must afford a basis for a reasonable estimate of the amount of his
loss and only medical expenses which are reasonably certain to be incurred in
the future are recoverable.”). Some direct evidence of anticipated future
medical expense is essential to a recovery because the amount of past medical expenses
incurred does not — at least by itself — provide a reasonable basis for a
jury to compute future medical expenses. See DeAlmeida v. Graham, 524
So. 2d 666, 668 (Fla. 4th DCA 1987). It is a plaintiff’s burden to establish,
through competent, substantial evidence, that future medical expenses will more
probably than not be incurred. See Fasani v. Kowalski, 43 So. 3d 805,
812 (Fla. 3d DCA 2010) (citing Kloster Cruise Ltd. v. Grubbs, 762 So. 2d
552, 556 (Fla. 3d DCA 2000)).

Here, Joynt relies upon the testimony of Dr. Sharon Norris,
her primary care physician, Dr. Thomas Kryzer, her neurotologist, Dr. Samuel
Amstutz, her ophthalmologist, Dr. Richard Beck, the County’s compulsory
otologist, and Dr. William Triggs, the County’s compulsory neurologist, to
prove that she will need a hearing aid, otologist care, ear surgery, primary
care and prescription medication, and “other miscellaneous care” in the future.
Careful review of the evidence, however, reveals that these claimed future
medical expenses are either not reasonably certain to be incurred, or if there
is evidence from which the jury could infer the need for future medical
treatment, there is no basis upon which the jury could have, with reasonable
certainty, determined the amount of those expenses.

Dr. Amstutz, who last saw Joynt in October 2011, testified
that he diagnosed her with complete left facial paralysis and was concerned
about the function of her left eyelid in protecting and caring for her eye. He
recommended that Joynt have a gold weight inserted into her eyelid to help with
closing, which she did. When asked what type of future treatment Joynt would
need, Dr. Amstutz testified that she may continue being dependent on using
supplemental artificial tears and gels. However, through the testimony of Dr.
Norris it was revealed that Joynt no longer had issues with her left eye drying
out.

Dr. Kryzer last saw Joynt in February of 2013, more than a
year before the date of trial. He performed surgery on Joynt’s left ear and
testified that it is reasonably possible, somewhere between a 40% to 50%
chance, that she will require another surgery on her left ear. He further
testified that “it would not surprise [him] if [Joynt] had to do another
surgery either for chronic drainage or a worsening of the hearing loss or
something like that,” and also that it “wouldn’t surprise [him] if [Joynt]
opted for a hearing aid in the future.” No evidence was submitted by Dr. Kryzer
as to the cost of another ear surgery or the cost of a hearing aid.

Dr. Norris testified that Joynt’s upper back pain and
right-sided chest pain will probably worsen over time, or at least bother her,
off and on, over the years, and that she will probably need to continue on pain
medication. While Dr. Norris opined that Joynt could need further treatment for
her back pain, such as epidural injections, she clarified that epidural
injections were a possibility depending on how Joynt does in the future, but
not a medical probability. Dr. Norris further opined that Joynt “may” need a
hearing aid for her left ear. However, no testimony was submitted through Dr.
Norris as to the cost of an epidural injection or a hearing aid.

Dr. Beck provided general testimony that a typical hearing
aid would cost thousands of dollars and last between four and twenty years. Dr.
Beck further testified that although Joynt is a candidate for a hearing aid,
whether or not to get one is her choice. He opined that she should continue to
see an ear specialist three to four times annually, and should continue to see
her general practitioner to manage her sleep disturbances and medications.

Joynt testified that she would prefer not to get a hearing
aid stating, “I’m just not really ready to give in to that yet.” She also
testified that she is trying to avoid further surgery as much as possible. She
spends about $80 per month on pain and sleep medication and does not expect
that amount to change.

The combined testimony of Joynt and the doctors fails to
show that the medical expense of a hearing aid is reasonably expected to be
incurred in the future. See Nevarez v. Friskney, 817 So. 2d 856, 858
(Fla. 5th DCA 2002) (holding that although the plaintiff presented expert
testimony regarding her possible need for further surgery, an award for future
medical expenses was inappropriate as she presented no evidence regarding the
cost of any future medical treatment, and she testified that she would not have
the surgery). The same is true for Joynt’s claimed need for future ear surgery
and “other miscellaneous care.”5 Dr. Kryzer’s testimony that it is
“reasonably possible” that Joynt will require additional surgery on her ear and
that “it would not surprise [him]” if he had to perform another surgery due to
chronic drainage or hearing loss, is insufficient to show that these medical
expenses are reasonably certain to be incurred in the future. See Fasani,
43 So. 3d at 812-13 (recognizing there must be evidence in the record from
which the jury could, with reasonable certainty, determine the amount of
medical expenses the plaintiff would likely incur in the future, and the mere
possibility or a recommendation by a doctor that certain treatment might be obtained
in the future cannot form the basis of an award of future medical expenses).
Furthermore, Joynt testified that she is “trying to stay away from as much
surgery as possible.” Cf. Nevarez, 817 So. 2d at 858.

Conversely, while the record shows follow-up care by an ear
specialist may be reasonably expected, no testimony regarding the cost of
future otologist care was offered. Instead, Joynt relied on past billing
statements from Dr. Kryzer. However, the prior statements do not set forth the
average charge for a medical visit. As such, there is no evidence in the record
from which the jury could have, with reasonable certainty, determined the
amount of medical expense Joynt would likely incur in the future for otologist
care. Cf. DeAlmeida, 524 So. 2d at 668 (“While we find evidence in the
record from which the jury could infer the need for future medical treatment,
we do not find evidence in the record from which the jury could, with
reasonable certainty, determine the amount of medical expense appellee would be
likely to incur in the future. . . . We are not persuaded by appellee’s
argument that the amount of past medical expenses furnished a reasonable basis
from which the jury could draw inferences as to the facts and thus compute the
amount of future medical expense.”). Likewise, the evidence was insufficient
for the jury to calculate the cost for future primary care and prescription
medication.

Joynt’s testimony that she spends “probably around $80”
monthly on prescription and over-the-counter pain medication is not conclusive
and no other evidence was presented to establish the cost, amount, or duration
of time she would need to remain on such medication. As for the need for future
medical treatment in the form of future visits to her primary care physician —
assuming there was record evidence to support a need for pain management —
there is no evidence in the record from which the jury could, with reasonable
certainty, determine the amount Joynt would be likely to incur in the future
for this medical expense. See id. There was no direct testimony
regarding the cost of such treatment and no testimony regarding how often Joynt
would need to see her doctor in a given year. Instead, Joynt relies on past
billing statements from Dr. Norris. However, like the records of Dr. Kryzer,
Dr. Norris’ past billing statements do not clearly set forth the cost of a
medical visit.

After a thorough review of the record, we conclude Joynt
failed to meet her burden on her claims for future medical expenses. There was
no evidence from which the jury could infer the same with reasonable certainty,
just multiple speculative assertions with regard to future treatment. And, to
the extent she may have shown some need, Joynt presented no evidence to
establish a cost for future medical treatment and testified she did not intend
to pursue some of the suggested medical procedures. Accordingly, the trial
court should have granted the County’s motion for directed verdict on this
claim.

Having concluded there was no reasonable evidence on which
the jury could legally predicate a verdict in favor of Joynt on her claims for
lost earning capacity and future medical expenses, we reverse the jury’s award
for those claims and remand to the trial court with instructions to strike the
same from the final judgment. See Nevarez, 817 So. 2d at 858 (“The
remedy for the jury’s erroneous award of damages not based on evidence is to
strike the award . . . .”). In all other respects, the final judgment is
affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED. (WALLIS,
J. and THOMPSON, T.P., Associate Judge, concur.)

__________________

1Joynt was hospitalized locally for
six days after suffering skull fractures and internal injuries. Upon returning
to her hometown of Wichita, Kansas, Joynt underwent left ear reconstruction
surgery and had a gold weight surgically inserted into her left eyelid to help
her blink. At the time of trial, Joynt continued to have difficulty hearing in
her left ear. She also suffered lingering paralysis on the left side of her face,
chronic pain in her upper back, radiating chest pain, headaches, and memory
loss.

2In May 2010, Joynt and her husband
agreed that she would take a break from work until their youngest child started
kindergarten. During this break, Joynt was injured in the accident.

3The record reflects Joynt suffered
from hearing loss and constant pain. She also had some problems with short-term
memory and proper pronunciation.

4At trial, Joynt abandoned, and thus
waived, any claims for lost earnings for any promotion she could have received
as a full classroom teacher and focused instead on whether she was employable
at $18,000 annually until age sixty-five. To the extent she attempts to reraise
the issue on appeal, we conclude there was no basis upon which the jury could
have reasonably assessed future economic damages as Joynt presented no evidence
of the potential wages of a full classroom teacher.

5“Other miscellaneous care” involved
tinnitus management, artificial tears and gels, removal of the gold weight in
her eyelid, and rib x-rays. At trial, with the exception of artificial tears
and gels that we’ve already addressed, no attempt was made to show that such
miscellaneous care was medically necessary or to quantify the cost for such
care.

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