SANDYS ROME BENJAMIN AND ROBIN BENJAMIN, HIS WIFE, APPELLANTS,
v.
DAVID M. DIEL, APPELLEE
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Personal injury plaintiffs appealed a jury verdict that awarded past medical expenses and lost wages but denied future lost wages after finding no permanent injury. The appellate court affirmed, rejecting claims that defense counsel's credibility attacks were improper, that a jury instruction on aggravation of pre-existing conditions was required, and that directed verdict on future lost wages was erroneous.
The court affirmed on all three issues: (1) defense counsel's credibility attacks were supported by evidence and not improper; (2) no instruction on aggravation was required because no evidence showed the accident aggravated pre-existing injuries; and (3) directed verdict was proper because appellant failed to establish future lost wages with reasonable certainty and presented no post-accident earning capacity evidence.
[1] Defense counsel's disparagement of a plaintiff's credibility is permissible when supported by the record and reasonable inferences drawn therefrom.
[2] A jury instruction on the aggravation of a pre-existing condition is not warranted when there is no evidence that the accident aggravated a pre-existing injury.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the appropriate test is to permit the recovery of future economic damages when such damages are established with reasonable certainty. Although a permanent injury is not a prerequisite to recovering future economic damages, it is a significant factor in establishing the reasonable certainty of the future damages.”
Establishes the legal standard for awarding future economic damages, which is central to rejecting appellant's future lost wages claim.
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Join FLexlaw to unlock all legal intelligenceAppellant Sandys Rome Benjamin suffered injuries to his head, arm, chest, legs, right ankle (fracture), and right knee (torn meniscus and ACL) in an a…
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WARNER, J.
Appellants challenge the final judgment entered in their personal injury action, awarding them past lost wages and medical expenses but not future lost wages, after the jury concluded that appellants did not sustain any permanent injury. They assert three issues: (1) whether defense counsel’s disparagement of appellant as untruthful was so prejudicial as to warrant a new trial; (2) whether the court should have instructed the jury on aggravation of a pre-existing defect; and (3) whether the court erred in directing a verdict on appellant’s future lost wages claim.
We affirm on all issues, holding that the defense counsel’s statements regarding appellant’s inconsistencies and omissions in his medical history were supported by the record and not improper; that the court did not err in failing to instruct on aggravation of a pre-existing defect when the evidence did not support it; and that appellant’s future lost wages were not established with reasonable certainty.
Appellant Sandys Rome Benjamin received injuries to his head, arm, chest, and legs in an automobile accident caused by defendant Diel. Four days after the accident he complained of anide and knee pain to Dr. Wexler, an orthopedic surgeon. Tests revealed that appellant’s right ankle was broken, and his right knee had a torn meniscus and anterior cruciate ligament (“ACL”), although subsequent surgery found the ACL to be intact. Two doctors performed four operations on his ankle and knee and testified that appellant suffered a permanent injury as a result of the accident.
In defense, appellee attacked appellant’s credibility and his failure to admit his significant prior medical history both to his own doctors and during discovery. Appellant’s records revealed he had received extensive medical care for his right knee. In fact, within five years before the accident a doctor recommended surgery on the knee. Based upon this medical history, appellee’s medical expert opined the accident did not cause a permanent injury either to plaintiffs knee or ankle. The jury agreed with the defense’s theory in its verdict by not awarding appellant the full amount of his past lost earnings or any non-economic damages.
Appellant argues the trial court should have granted a new trial because the defense was permitted to call him a liar throughout the proceedings without establishing that he had, in fact, lied. Generally, a mistrial or new trial should be granted only when counsel’s arguments are so inflammatory and prejudicial that they deny the opposing party a fair trial. See Tosta v. State, 786 So. 2d 21, 23 (Fla. 4th DCA 2001); Jeep Corp. v. Walker, 528 So. 2d 1203, 1204 (Fla. 4th DCA 1988).
Appellant’s argument lacks merit because, not only did the defense never call him a liar, the attacks on his credibility were supported by the evidence and the inferences drawn therefrom. Even if counsel had directly called appellant a liar, he was simply “submitting to the jury a conclusion that reasonably may be drawn from the evidence.” Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010, 1029 (Fla.2000).
Although appellant maintains he explained most of his inconsistencies, the jury did not have to accept his explanations, and defense counsel could highlight appellant’s discrepancies as credibility issues for the jury-
While appellant requested the trial court to give the standard jury instruction for aggravation of a pre-existing condition, it refused because there was no evidence that the accident aggravated a pre-existing injury. The plaintiff requested the same instruction under a similar situation in Llompart v. Lavecchia, 374 So. 2d 77 (Fla. 3d DCA 1979).
In that case, Llompart sued for injuries he claimed were sustained in an automobile accident and presented expert evidence to support that theory. See id. at 80. The defense countered with experts testifying that Llompart’s injuries were preexisting and not caused by the accident. See id. In holding that it was not error to deny a requested instruction on aggravation of preexisting condition, the third district noted the complete absence of any testimony that the accident aggravated the pre-existing condition. See id.
Similarly, appellant argued at trial that the accident was the sole cause of his knee injuries, and appellee countered with expert testimony that appellant’s knee injuries were pre-existing and not caused by the accident. Because there was no evidence that the accident aggravated preexisting injuries, the trial court did not abuse its discretion in refusing to give the requested instruction. See Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968, 974 (Fla. 4th DCA 1999).
Appellant’s final argument challenges the court’s direction of a verdict as to appellant’s future lost wages claim. In Auto-Owners Insurance Co. v. Tompkins, 651 So. 2d 89, 91 (Fla.1995), the supreme court set the standard by which future economic damages are measured: “the appropriate test is to permit the recovery of future economic damages when such damages are established with reasonable certainty. Although a permanent injury is not a prerequisite to recovering future economic damages, it is a significant factor in establishing the reasonable certainty of the future damages.” See also Owen v. Morrisey, 793 So. 2d 1018, 1022 (Fla. 4th DCA 2001) (discussing how Tompkins should be applied), rev. granted, 817 So. 2d 848 (Fla.2002).
Lost earning capacity, one measure of future economic damages, “compensate[s] a plaintiff for loss of capacity to earn income as opposed to actual loss of future earnings. A plaintiff must ... present evidence which will allow a jury to reasonably calculate lost earning capacity.” W.R. Grace & Co.-Conn. v. Pyke, 661 So. 2d 1301, 1302 (Fla. 3d DCA 1995); accord Eagle Atl. Corp. v. Maglio, 704 So. 2d 1104, 1105 (Fla. 4th DCA 1997).
Although appellant presented evidence of his past wages as a limousine driver and testified that he would be unable to drive a limousine in the future, he did not present any evidence of his post-accident earning capacity or evidence that he was completely disabled from further gamful employment.
Therefore, there was no evidence from which a jury could reasonably calculate lost earning capacity. See Eagle Atl. Corp., 704 So. 2d at 1105. While appellant cites Hamilton v. Melbourne Sand Transport, Inc., 687 So. 2d 27, 28-29 (Fla. 5th DCA 1997), for support, that case is distinguishable where Hamilton had offered evidence of what he was earning and would continue to earn after the accident from which the jury was able to determine his lost earning capacity. No such testimony was present in this case.
We affirm without discussing the issue raised on cross-appeal.
For the foregoing reasons, we affirm the judgment of the trial court.
STEVENSON and TAYLOR, JJ., concur.
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Carnival Corp. v. Pajares, 972 So. 2d 973 (Fla. 3d DCA 2007)…ce fully supports the jury’s verdict. Dozier v. Hodges, 849 So. 2d 1094 (Fla. 3d DCA 2003). The comments here were not so highly prejudicial and inflammatory as to deny Carnival Cruise Line a fair trial. See Engle; Dozier, see also Benjamin v. Diel, 831 So. 2d 1227 (Fla. 4th DCA 2002). Trial courts have traditionally been granted great deference in their decisions to grant or deny a new trial based upon improper argument of trial counsel. Tanner v. Beck, 907 So. 2d 1190, 1197 (Fla. 3d DCA 2005) (Green, J., d…
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Roby Eugene Pruitt v. Perez-Gervert, 41 So. 3d 286 (Fla. 2d DCA 2010)…d from which the jury could have calculated the amount of that loss with reasonable certainty. Therefore, the trial court should have granted the appellants’ motion for a directed verdict on future lost earning capacity. See, e.g., Benjamin v. Diel, 831 So. 2d 1227 (Fla. 4th DCA 2002). Accordingly, we reverse the portion of the final judgment representing the award for future loss of earning capacity. We also reverse the portion of the final judgment awarding future medical expenses [*290] and remand for the…
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State Farm Mut. Auto. Ins. Co. v. Christel Davis, 336 So. 3d 392 (Fla. 5th DCA 2022)…” Id. 16 In a legally similar case, Benjamin v. Diel, the Fourth District upheld the trial court’s refusal to give an aggravation of preexisting condition instruction, where plaintiff argued his knee injury was solely caused by the subject accident. 831 So. 2d 1227, 1229 (Fla. 4th DCA 2002). The defense countered with their own medical expert who testified that plaintiff’s knee injuries were entirely preexisting and not caused at all by the accident. Id. No evidence was presented by either side that the col…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)
- Auto-Owners Ins. Co. v. Tompkins, 651 So. 2d 89 (Fla. 1995)
- Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968 (Fla. 4th DCA 1999)
- W.R. Grace & Company-Conn. v. Pyke, 661 So. 2d 1301 (Fla. 3d DCA 1995)
- Jeep Corp. v. Walker, 528 So. 2d 1203 (Fla. 4th DCA 1988)
- Ravonne Griffin v. State, 374 So. 2d 77 (Fla. 3d DCA 1979)
- Llompart v. Lavecchia, 374 So. 2d 77 (Fla. 3d DCA 1979)
- Owen v. Morrisey, 793 So. 2d 1018 (Fla. 4th DCA 2001)
- Eagle Atl. Corp. v. Maglio, 704 So. 2d 1104 (Fla. 4th DCA 1997)
- Tosta v. State, 786 So. 2d 21 (Fla. 4th DCA 2001)