43
Fla. L. Weekly D122a

Torts
— Damages — Past non-economic damages — Trial court erred in denying motion
of plaintiff, who was struck by defendant’s vehicle while plaintiff was a
pedestrian, for additur or new trial on past damages for pain and suffering —
Under facts of case, jury’s award for past non-economic damages was inadequate
as matter of law — Appeals — Plaintiff’s claim that trial court abused its
discretion by declining to grant a new trial on damages and liability based on
a compromised verdict was not preserved for appeal where issue was first raised
on motion for reconsideration of trial court’s denial of motion for additur or
new trial — Denial of motion was jurisdictional and not subject to
reconsideration or modification

LARS PAUL GUSTAVSSON, Appellant, v.
CAROL MARIE HOLDER AND SEAN LEONARD BECK, Appellees. 5th District. Case No.
5D16-1442. Opinion filed January 5, 2018. Appeal from the Circuit Court for
Volusia County, Sandra C. Upchurch, Judge. Counsel: Nancye R. Jones and Mark A.
Matovina, of Politis & Matovina, P.A., Port Orange, for Appellant.
Elizabeth C. Wheeler, of Elizabeth C Wheeler, P.A., Orlando, for Appellees.

(EGAN, R., Associate Judge,) Lars
Paul Gustavsson appeals the denial of his motion for additur or new trial
following judgment entered in his favor, as well as the denial of his
subsequent motion for reconsideration. Gustavsson also argues the trial court
abused its discretion by declining to grant a new trial on damages and
liability based on a compromised verdict. We reverse on the issue of past
non-economic damages only and affirm on the issue of future non-economic
damages. We also affirm on the issue of liability based on a compromised
verdict because Gustavsson did not preserve that issue for appeal.

Gustavsson sued appellees Carol
Marie Holder and Sean Leonard Beck after being struck and injured as a
pedestrian by a vehicle owned by Holder and driven by Beck.1 With respect to damages, the parties
did not dispute that Gustavsson sustained a serious and permanent injury as a
result of the accident. He sustained a displaced right femur fracture that
required surgical repair with a titanium rod. He also suffered a facial
laceration, which required plastic surgery that resulted in permanent facial
scarring. Recovery from the leg injury did not go well. Over the three years
following the accident, Gustavsson was diagnosed with three MRSA infections of
the leg that required at least four additional surgical procedures, including
irrigation and debridement of the infected tissue and removal of the titanium
rod, which was believed to be the source of the infection. During this time,
Gustavsson spent more than eighteen weeks in the hospital, and at trial, he
claimed $507,874.95 in past medical expenses.

All of his treating physicians
agreed that the subject motor vehicle accident was the cause of the infection
and that the initial injury, as well as the subsequent infections, were very
painful for Gustavsson. In addition, orthopedic surgeon Thomas Broderick, M.D.,
performed three compulsory medical examinations on behalf of Beck, culminating
in a final written report in January 2015. According to Dr. Broderick,
Gustavsson’s right knee had stabilized by that time but had a permanent
decrease in motion. The right thigh had suffered significant atrophy, and the
knee examination was consistent with chronic inflammation. Dr. Broderick agreed
that the leg injury would have been painful, opined that Gustavsson sustained a
permanent injury, and assigned a 25% permanent impairment rating related to the
accident.

At the close of the evidence, the
trial court directed a verdict for Gustavsson on the issue of permanency and
submitted the case to the jury. The jury returned a verdict finding Beck 1%
negligent and Gustavsson 99% negligent. The jury awarded Gustavsson $507,667.95
for medical damages, nearly the exact total of the claimed past medical bills,
but awarded no damages for pain and suffering, physical impairment, mental
anguish, inconvenience, aggravation of disease or physical defect, or loss of
capacity for the enjoyment of life.

In light of the directed verdict on
permanency and the award of past medical damages, the parties agreed the jury
verdict was inconsistent, and the court sent the jury back for further
deliberation with the following instruction:

I have
found your verdict to be an inconsistent one.

Because of
the Court’s finding of permanent injury and the award that you all determined
was appropriate of past medical expenses, there must be an accompanying award
of pain and suffering in Paragraph 5 of the verdict form.

So I am
sending you back to deliberate in that regard, looking at Paragraph 5, and your
determination in that regard must be based on the evidence that you have heard.

Eleven minutes later, the jury
returned the same verdict for medical damages and added only $1000 for past
non-economic damages and $1000 for future non-economic damages.

After trial, Gustavsson moved for
additur or, in the alternative, new trial. He specifically argued “the amount
of the award is inadequate as a matter of law in that”:

(a) The
jury found that Defendant’s negligence was the legal cause of injury and or
loss to Plaintiff. However, the jury failed to award the damages for any future
medical expenses based on the manifest weight of the evidence;

(b) The
jury found that Defendant’s negligence was the legal cause of injury or loss to
Plaintiff, however the jury award for past pain and suffering damages was
inadequate based on the manifest weight of the evidence;

(c) The
jury found that Defendant’s negligence was the legal cause of injury and or
loss to Plaintiff, however the jury award for future pain and suffering damages
was inadequate based on the manifest weight of the evidence;

(d) The
jury misconceived the merits of the case relating to the amount of damages
recoverable.

Gustavsson made no mention of a
request for new trial based on the issue of liability due to a compromised
verdict.

The trial court denied the motion
without a hearing, and Gustavsson then moved for reconsideration on similar
grounds, again without reference to a compromised verdict. The trial court
allowed a hearing on the motion, where Gustavsson mentioned for the first time
the issue of a compromised verdict as follows:

[I]f there
was a hotly contested liability issue then you get a new trial on damages and
liability. And there’s no question this one was hotly contested. In fact, my
opinion is, that this was a compromised verdict because of the 99 to 1 percent,
somebody was holding out, and they compromised the one percent.

The trial court denied
reconsideration.

We find that Gustavsson did not
preserve the issue of new trial on liability based on a compromised verdict
because the initial denial of the motion was jurisdictional and not subject to
reconsideration or modification. See State v. Burton, 314 So. 2d 136,
137 (Fla. 1975) (approving the district court’s correct legal conclusion that
“when a motion for new trial is granted or denied ‘absent fraud or clerical
error‘ . . . ‘the court is without authority to entertain or consider a
petition for re-hearing addressed to such an order’ ”); Owens v. Jackson,
476 So. 2d 264, 264 (Fla. 1st DCA 1985). Specifically, an order granting or
denying a new trial confers a substantive right and is not interlocutory in
nature. Burton, 314 So. 2d at 137; Owens, 476 So. 2d at 264.
Accordingly, unlike an interlocutory order, it is not subject to modification. Huffman
v. Little, 341 So. 2d 268, 269 (Fla. 2nd DCA 1977).

With respect to the issue of additur
or new trial based on inadequate non-economic damages awarded in a motor
vehicle accident case, section 768.043, Florida Statutes (2015), provides that
courts “shall consider” the following factors for “determining whether an award
is clearly excessive or inadequate in light of the facts and circumstances
presented to the trier of fact and in determining the amount, if any, that such
award exceeds a reasonable range of damages or is inadequate”:

(a)
Whether the amount awarded is indicative of prejudice, passion, or corruption
on the part of the trier of fact.

(b)
Whether it clearly appears that the trier of fact ignored the evidence in
reaching the verdict or misconceived the merits of the case relating to the
amounts of damages recoverable.

(c)
Whether the trier of fact took improper elements of damages into account or
arrived at the amount of damages by speculation or conjecture.

(d)
Whether the amount awarded bears a reasonable relation to the amount of damages
proved and the injury suffered.

(e)
Whether the amount awarded is supported by the evidence and is such that it
could be adduced in a logical manner by reasonable persons.

Here, considering these factors, we
conclude that the trial court erred by not granting additur or a new trial on
the issue of past non-economic damages. The jury initially awarded no
non-economic damages despite: (1) the unanimous opinion of all physicians
involved that Gustavsson sustained a serious and painful injury that resulted
in numerous MRSA infections requiring more than four months of hospitalization;
(2) being instructed that Gustavsson had sustained a permanent injury as a
matter of law; and (3) awarding over half a million dollars in past medical
expenses. After the trial court instructed the jury to award damages for pain
and suffering, it deliberated for only eleven more minutes before awarding
$1000 for past non-economic damages and $1000 for future non-economic damages.
Under the facts of this case, the award for past non-economic damages was
inadequate as a matter of law and subject to additur or a new trial.

This case is similar to Sanchez
v. Hernandez, 971 So. 2d 944, 945-46 (Fla. 3d DCA 2007), in which the
defendant’s vehicle struck the plaintiff as he crossed a road, resulting in
multiple surgeries to the left knee, recurring pain, and a 15 to 20% permanent
disability. The jury awarded past medical expenses of $55,402.43, future
medical expenses of $16,000, and past wage loss of $5000, but only $702.21 for
past non-economic damages and the same amount for future non-economic damages. Id.
at 946. The Third District Court of Appeal held, “Unlike the disparity between
past and future components of damages considered in [Allstate Insurance Co.
v. Manasse, 707 So. 2d 1110 (Fla. 1998)], and other cases cited by the
defendants, the jury’s awards to Sanchez for non-economic damages simply have
no explanation in the record.” Id.

Here, the evidence of past
non-economic damages was both overwhelming and undisputed. Under the facts of
this case, the jury’s verdict on such damages has no explanation in the record,
and it is apparent that the trier of fact ignored the evidence in reaching the
verdict or misconceived the merits of the case relating to the amount of past
non-economic damages recoverable. Likewise, the amount of past non-economic
damages awarded bears no reasonable relation to the substantial amount of
economic damages proved and the injury suffered.2

Accordingly, we reverse the denial
of the motion for additur and remand for either an additur award or a new trial
on past non-economic damages only in accordance with section 768.043, Florida
Statutes.

REVERSED and REMANDED. (COHEN, C.J.
and EISNAUGLE, J., concur.)

__________________

1Carol
Marie Holder, Beck’s mother, does not participate on appeal.

2We do not
disturb the jury’s verdict or the trial court’s ruling regarding future
economic or non-economic damages because future damages are, by nature, less
certain than past damages. See Manasse, 707 So. 2d at 1111. In this
case, the jury made no award for future medical expenses, and Gustavsson
testified the pain had improved and there were periods in between surgeries
where he indicated no pain.

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