Opinion
Case No. 5D18-3376
03-20-2020
Jeb BACHMAN, Appellant, v. Alex OLIVEROS and H.A.T. Service Corporation, Appellees.
Morgan L. Weinstein, of Weinstein Law P.A., Fort Lauderdale, for Appellant. Diran V. Seropian, of Shendell & Pollock, P.L., Boca Raton, for Appellees.
Morgan L. Weinstein, of Weinstein Law P.A., Fort Lauderdale, for Appellant.
Diran V. Seropian, of Shendell & Pollock, P.L., Boca Raton, for Appellees.
EDWARDS, J.
Appellant Jeb Bachman was the plaintiff in a personal injury motor vehicle collision case that went to a jury trial and resulted in a verdict for Appellees/defendants. Bachman sought a new trial on all issues of damages, based upon supposed errors in the verdict form itself and his claim that the verdict was against the manifest weight of the evidence. He now appeals the order denying his motion for new trial. We find that Bachman’s dissatisfaction with the form of verdict cannot be attributed to the trial court. Furthermore, because there was disputed evidence regarding whether or not he suffered any aggravation or exacerbation to an existing condition, or whether he suffered any injury at all as a result of the collision, we affirm the order denying new trial; thus, the jury’s verdict will stand. We explain below how we arrived at our decisions.
We affirm without further discussion Bachman’s argument that the trial court erred by permitting Appellees’ counsel to briefly cross-examine one witness beyond the scope of direct examination, as we find no abuse of discretion nor any unfair prejudice.
Trial Proceedings and Evidence
In the accident, Bachman’s car was struck from behind by Appellees’ truck. Appellees conceded fault, but contested that the collision caused Bachman any injuries. Bachman admitted that the damage to his car was mostly cosmetic. Bachman was taken by ambulance from the accident scene to the hospital where he was examined, treated, and released. Emergency department records described his injury status as mild. Over time, he treated with several physicians who agreed with Appellees’ medical experts that, at the time of the accident, Bachman already had arthritic bone spurs and some disc issues in his neck. Bachman’s medical witnesses testified that the collision aggravated these pre-existing conditions to the extent that ongoing treatment and ultimately surgery were required. His medical witnesses also testified that they causally related his complaints of dizziness and memory issues to the collision.
On the other hand, Appellees’ medical witnesses testified that the collision did not cause any structural damage to Bachman’s neck or brain, and attributed the majority of his discomfort, subjective complaints of pain, and need for treatment to age-related disc degeneration and arthritis in the neck. Furthermore, Appellees’ medical experts opined that any dizziness and issues regarding memory loss were caused by age-related changes to the brain rather than being involved in the collision. Two physicians, retained by Appellees, testified that Bachman’s initial complaints of neck pain and headaches were soft-tissue injuries likely caused by the collision. However, at least one of those doctors qualified his opinions, at times, by saying that one would have to find his subjective complaints believable before concluding that they were accident-related. A third doctor, a neurologist who examined Bachman for his personal injury protection insurer, testified that the accident caused no injury at all and said that whether Bachman’s subjective complaints of pain were valid was a question for the jury to decide.
Appellees aggressively cross-examined Bachman regarding the information he supplied to the various health care providers concerning his conditions and symptoms. Bachman several times said that he could not recall what he said and stated that at least one narrative account prepared by first responders was not an accurate recital of what he told them at the accident scene regarding whether he lost consciousness. Appellees also provided evidence at trial that Bachman’s injuries on the day of the accident may not have been as severe as he had stated in testimony.
Bachman moved for a directed verdict on the single issue of permanency, which is required for clearing the no-fault threshold. He sought a ruling that, as a matter of law, each and every injury the jury found had been caused by the collision would qualify as a permanent injury. Appellees conceded that if the jury found a causal relationship between the accident and any injury, it should be considered a permanent injury because even Appellees’ doctors agreed that the duration of Bachman’s subjective complaints was consistent with a permanent injury. However, Appellees made it clear that they were not conceding causation. Bachman did not move for a directed verdict on any other issue. During the charge conference, jury instructions and the verdict form were discussed, amended as needed, and finally agreed upon by both sides. The jury heard closing arguments, was instructed on the law, deliberated, and returned a complete defense verdict in favor of Appellees. Bachman’s motion for new trial was denied without elaboration.
§ 627.737(2), Fla. Stat. (2019).
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Verdict Form Issues
Bachman argues that the mutually agreed-upon verdict form contained defects that prevented the jury from returning a proper verdict, which he further claims should entitle him to a new trial on damages. Before engaging in any discussion or analysis, we will consider the first and only question that the jury answered along with the verdict form’s directions of what the jury should do based on its answer to question 1.
VERDICT FORM
We, the jury, return the following verdict:
1. Was the negligence of the Defendants a legal cause of loss, injury, or damage to Jeb Bachman?
Yes ______ No X __
If your answer to Question #1 is Yes , please answer Question # 2.
If your answer to Question #1 is No , you should proceed no further but to date and sign the verdict form and return it to the courtroom.
As instructed above, after answering Question #1 "No," the jury did not answer any of the remaining questions which focused on damages, and the foreperson dated and signed the verdict form. The jury’s verdict was announced in open court with both sides present.
First, Bachman asserts that although he sought recovery for the aggravation of his pre-existing injuries or conditions, the verdict form did not contain those terms anywhere; thus, he claims the jury was erroneously prevented from returning a just verdict. However, the record is clear—and Bachman concedes—that he not only failed to object to the verdict form that was used, he also expressly agreed to its use. Bachman claims that the use of the agreed-upon verdict form denied him the right to have the jury decide a core issue, which he then characterizes as fundamental error, and asks for the remedy of a new trial.
Bachman’s position is at odds with the pronouncement of the Florida Supreme Court that "in civil cases, reversal based on the concept of ‘fundamental error’ where a timely objection has not been made is exceedingly rare." Coba v. Tricam Indus., Inc. , 164 So. 3d 637, 646 (Fla. 2015). "[F]undamental error must implicate a constitutional right, such as due process, or the error must be so significant that requiring a new trial is essential to maintain public trust in our jury trial system." Id. (citing Murphy v. Int’l Robotic Sys. , 766 So. 2d 1010, 1026 (Fla. 2000) ). Bachman has not explained how the use of this verdict form comes close to clearing the fundamental error hurdle. Bachman’s position is further frustrated by the invited error doctrine, which provides that even fundamental error may be waived where counsel requests or agrees to giving an improper jury instruction or, as here, the use of a possibly improper verdict form. Morgan v. State , 146 So. 3d 508, 512 (Fla. 5th DCA 2014). "The fault should not be laid upon the trial judge; rather, it must be placed upon the [appellant’s] trial attorney who led the court into error by approving, or failing to object to, the form of the verdict before it was submitted to the jury." Keller Indus., Inc. v. Morgart , 412 So. 2d 950, 951 (Fla. 5th DCA 1982).
Second, Bachman claims that because Appellees admitted fault for causing the accident, he was entitled, at a minimum, to an award of damages for reasonable expenses incurred soon after the collision for medical transportation, examination, diagnosis, and testing. Indeed, that is the general rule which is typically learned and used by attorneys on both sides of such cases. See, e.g. , Hernandez v. Gonzalez , 124 So. 3d 988, 991 (Fla. 4th DCA 2013). However, Bachman waived his right to recover those damages by failing to move for a directed verdict on that issue. Id. at 992. "[I]n failing to so move, [he] elected to leave this issue up to the jury." Martin v. Chapman , 780 So. 2d 929, 930 (Fla. 5th DCA 2001). Furthermore, the jury instructions and verdict form, which both sides accepted, did not give the jury the option of awarding initial medical expenses if they found Bachman was not injured as a result of the collision. Bachman’s failure to object to the jury instructions and verdict form waived any right to a new trial on that basis, "because ‘the jury cannot be faulted for doing exactly what it was instructed to do.’ " Hernandez , 124 So. 3d at 992 (quoting Plana v. Sainz , 990 So. 2d 554, 557 (Fla. 3d DCA 2008) ); see also Beverly Health & Rehab. Servs., Inc. v. Freeman , 709 So. 2d 549, 551 (Fla. 2d DCA 1998).
Undisputed or Conflicting Evidence of Injury Causation?
Next, Bachman asserts that the manifest weight of the evidence presented at trial was that at least some of his injuries or medical conditions were caused by the collision, thereby entitling him to a new trial on damages. During the trial, the medical testimony concerned two different categories of claimed injury or medical conditions. The first injury category includes claims that the collision aggravated pre-existing conditions in Bachman’s neck, which were described as arthritic bone spurs, spondylosis, a herniated disc, and also independently caused a head or brain injury described as post-concussion syndrome. The second category of claimed injuries were described as soft-tissue injuries, which are often included under the heading of whiplash injuries, namely chronic soreness and stiffness in the neck accompanied by significant headaches.
Whether the verdict is contrary to the manifest weight of the evidence "is the question addressed to the trial court on motion for a new trial." DeWitt v. Maruhachi Ceramics of Am., Inc. , 770 So. 2d 709, 711 (Fla. 5th DCA 2000). However, that is not the question presented to this Court on appeal. "Rather, [an] appellate court is limited to considering whether or not the trial court abused its discretion in denying a new trial." Id. "A trial court is given broad discretionary latitude to grant or deny a motion for new trial because of its direct and superior vantage point of the trial proceedings." Wilson v. Krystal Co. , 844 So. 2d 827, 829 (Fla. 5th DCA 2003). Although it has been occasionally said that a stronger showing of error is required to reverse an order granting a new trial than to reverse an order denying a new trial, abuse of discretion remains the standard of review for both orders. E.g. , Mead v. Bentley , 61 So. 2d 428, 430 (Fla. 1952) ; Ruff v. Ga. S. & Fla. Ry. Co. , 67 Fla. 224, 64 So. 782, 786 (1914).
A verdict is contrary to the weight of evidence only when the evidence is clear, obvious, and not conflicting. DeWitt , 770 So. 2d at 711. "A jury’s verdict is generally not against the manifest weight of the evidence if the record shows conflicting testimony from two or more witnesses." Lindon v. Dalton Hotel Corp. , 113 So. 3d 985, 987 (Fla. 5th DCA 2013) (citing Nat’l Healthcorp Ltd. P’ship v. Cascio , 725 So. 2d 1190, 1194 (Fla. 2d DCA 1998) ). Therefore, we must look at the evidence presented as to each injury category to determine whether the trial court abused its discretion in denying Bachman’s motion for new trial.
As to the first category of injury, the evidence could hardly have been more conflicting. With regard to his cervical spine, Bachman’s medical witnesses testified that the accident activated, aggravated, or exacerbated a previously non-symptomatic disc condition in his cervical spine to such an extent that it required surgery. Appellees’ medical witnesses testified to quite the contrary, saying that there were no structural changes, that his bone spurs and disc herniation were long standing, age-related, were not caused by the collision, and that the surgery Bachman underwent treated only the pre-existing cervical issues. With regard to Bachman’s claimed brain injuries, the testimony was likewise conflicting, with Bachman’s medical witnesses describing his condition as post-concussion syndrome resulting from the collision, while Appellees’ described Bachman’s claimed forgetfulness, dizziness, and similar issues as nothing more than age-related and unrelated to the collision. Given that there was a great deal of conflict in the testimony with regard to the first category of injuries or conditions, we find that the trial court did not abuse its discretion in denying the motion for new trial.
As for the second category of injuries, the persistent soft-tissue injuries, the conflict in the evidence was far less apparent. Bachman’s testimony was that he experienced these conditions for the first time as a result of the collision. His medical witnesses, while focusing more on the first category of injury, certainly agreed with their patient, that this collision had caused the second category of injuries. One of Appellees’ witnesses, Dr. Fischer, agreed that the collision best explained Bachman’s complaints of headaches and dizziness. Another of Appellees’ witnesses, Dr. Jacobs, vacillated somewhat. He testified at times that Bachman likely had some soft-tissue neck injury caused by the accident, and agreed that the collision caused him to become symptomatic as far as neck pain. At other times, Dr. Jacobs emphasized that Bachman had no structural changes to his neck; thus, he was dealing with subjective complaints of pain which could not be objectively evaluated. Finally, Dr. Gerling testified, after examining Bachman, that he could not find any accident-caused injury or objective explanation for Bachman’s subjective complaints. Dr. Gerling went on to testify that there was absolutely no evidence of any injury to Bachman caused by the accident, and he agreed that from what he saw, Bachman was not hurt in the least bit in this accident. Dr. Gerling would not defer to nor change his opinion regarding the absence of any injury to what any of Bachman’s treating physicians may have concluded.
As to this second category of injuries, as just noted, there was conflicting medical testimony here. Furthermore, when it comes to subjective complaints that are not objectively verifiable, the jury may consider the plaintiff’s perceived candor in describing his prior and current medical conditions, as well as his overall credibility, together with lay testimony or other evidence that disputes the injury claim. See Boyles v. A & G Concrete Pools, Inc. , 149 So. 3d 39, 48 (Fla. 4th DCA 2014). When asked about Bachman’s complaints of pain, Dr. Gerling said, rather prophetically, that he is no substitute for the jury, which is who must decide the credibility of the person voicing these subjective complaints.
As put so well by Judge Lagoa in Weatherly v. Louis , 31 So. 3d 803, 806–07 (Fla. 3d DCA 2009) :
It is not for this Court to decide which side’s evidence is more persuasive or whether the trial court reached the result this Court would have reached. Our role is limited to determining whether conflicting evidence was presented at trial—if so, we cannot find an abuse of discretion. Because the evidence was not clear and obvious but was, in fact, conflicting, we are compelled to affirm the final judgment.
Accordingly, we affirm the trial court’s order denying a new trial as to both categories of injuries.
Conclusion
We affirm the trial court’s order denying a new trial and affirm the judgment entered in favor of Appellees.
AFFIRMED.
WALLIS, J., and GARAGOZLO, B.B., Associate Judge, concur.