MILVA LISSABET ORTEGA, APPELLANT,
v.
BLANCHARD BELONY, APPELLEE
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The appellate court held that the trial court erred in granting additur because the jury's award of $5,000 for pain and suffering was supported by the evidence and did not shock the conscience.
[1] Damages for pain and suffering are uniquely reserved to the jury for their decision, as they are difficult to calculate and have no set standard of measurement.
[2] A jury verdict for pain and suffering is clothed with a presumption of regularity and should not be disturbed if supported by the evidence.
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Join FLexlaw to unlock all legal intelligencePlaintiff suffered a broken neck in a traffic accident and was awarded medical expenses but zero damages for pain and suffering by a jury, who found h…
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CORRECTED OPINION
In this plaintiffs personal injury case, the jury, not once, but twice refused to award the plaintiff any significant damages for past or future pain and suffering. The trial judge added $245,000 more to the jury verdict for this purpose. For the reasons set forth below, we reinstate the verdict.
Factual Background
As a result of a vehicular traffic accident, Blanchard Belony suffered a broken neck, for which he was hospitalized in traction for eight days. Although he could have elected surgery, he declined, and instead wore a “halo”1 for three months while the break mended. During this time he lived with his brother, who assisted him with his bathing and other needs. Belony also experienced difficulty sleeping, and, on one occasion, had to return to the hospital briefly to have the screws in his halo tightened. At the end of three months, however, Belony’s injuries had substantially healed, the halo was removed, and his only continuing ailment was mild neck pain. By the time of trial, Belony’s complaint was residual back pain. His doctors did' not recommend any future treatment, including follow-up surgery or physical therapy, after removal of the halo.
Less than a year after the accident, and in conjunction with his filing .suit,. Belony sought treatment, for neck pain from orthopedic spinal surgeon, Dr. Mark Eskena-zi. At this point, Belony’s neck fracture had almost completely healed. Dr. Esken-azi recommended surgery, which Belony again refused, instead opting for three injections to his .neck. Dr. -Eskenazi administered the injections and told Belony to return if he. felt any worse. After the injections from Dr. Eskenazi, Belony felt almost normal. By the. time of trial, Belo-ny had no difficulty performing- the activities of daily living, had not returned to seek treatment from Dr. Eskenazi in over a year, and . did not intend on seeking any .future surgical procedures.
At the conclusion of trial, the jury found Belony seventy percent (70%) comparatively’negligent‘in the accident, and awarded him his full $32,971.86 in past and future medical expenses, and zero damages for past and future pain and suffering. Believing the $0 award to be contrary to the evidence, the trial court ordered the jury to reconsider the pain and suffering award. After additional deliberations, the jury awarded Belony $5,000 in past and future pain and suffering. Belony moved for additur pursuant to section 768.043 of the 'Florida Statutes.
At the hearing on the motion, the trial judge expressed “shock” át the pain and .suffering award and expressed his view that the jury must have been, “coldblooded” to return such a low verdict. After some reflection, the trial court increased the pain and suffering award to Belony to a total amount of $250,000. The written order reflects that additur was granted because the pain and suffering' award shocked the conscience of the court.
Analysis
Damages for pain and suffering are difficult to calculate, have no set standard of measurement, and for this reason are uniquely reserved to,a jury for their deci*540sion. See Pitcher v. Zappitell, 160 So.3d 145, 147 (Fla. 4th DCA 2015) (“[P]ain and suffering damages are discretionary and there are no ‘specific measures to quantify such damages.’”); Gen. Foods Corp. v. Brown, 419 So.2d 393, 394 (Fla. 1st DCA 1982) (stating that damages for pain and suffering are “peculiarly-within the province ofthe jury”). When attempting to quantify a damage award for pain-and suffering in a personal injury case, the trier of fact deals with the most intangible element of the award. One court has described it as “an attempt to ‘measure that which is immeasurable.’ ” Food Fair Stores, Inc. v. Morgan, 338 So.2d 89, 92 (Fla. 2d DCA 1976). For thjs reason, a pain and suffering verdict is “clothed with a presumption of regularity and is not to be disturbed if supported by the evidence.” Republic Servs. of Fla., L.P. v. Poucher, 851 So.2d 866, 869 (Fla. 1st DCA 2003).
The well-established test for determining the adequacy of a jury, verdict is simply “whether a jury of reasonable [persons] could have, returned that verdict.” Griffis v. Hill, 230 So.2d 143, 145 (Fla.1969). The familiar refrain that the trial court “cannot sit as a seventh juror” applies. Terry Plumbing & Home Servs., Inc. v. Berry, 900 So.2d 581, 585 (Fla. 3d DCA 2004).
In this case, there is no basis on which to conclude, as a matter of law, that a jury of reasonable persons, could not have reached a $5,000 award for pain and suffering on the evidence presented. The record in' this case does not establish the jury was' improperly influenced by prejudice, passion, or corruption. Belony was a stoic plaintiff whose injuries healed quickly and, after a three month recovery, had no need of future medical' treatment. Although Belony suffered a severe, permanent injury in the ear accident, he has proven to be resilient in his recovery and by the time of trial, felt “almost normal.” Therefore, the jury did not act unreasonably in concluding, as it did, that $5,000 was a reasonable award for Belony’s past and future pain and suffering.
Reversed and remanded for reinstatement of the jury verdict.
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R.J. Reynolds Tobacco Co. v. Schleider, 273 So. 3d 63 (Fla. 3d DCA 2018)…rd of money damages for pain and suffering reflects an attempt to establish an objective economic equivalent for the subjective pain a person suffered. It has been described as "an attempt to 'measure that which is immeasurable.' " Ortega v. Belony, 185 So. 3d 538, 540 (Fla. 3d DCA 2015) (quoting Food Fair Stores, Inc. v. Morgan, 338 So. 2d 89, 92 (Fla. 2d DCA 1976) ). Because of the inherent difficulty in measuring non-economic damages such as pain and suffering, the Florida Supreme Court has determined tha…
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Rozar v. R. J. Reynolds Tobacco Co., 292 So. 3d 1202 (Fla. 1st DCA 2020)…mages for pain and suffering are difficult to calculate, have no set standard of measurement, and for this reason are uniquely reserved to a jury for their decision.” Pogue v. Garib, 254 So. 3d 503, 507 (Fla. 4th DCA 2018) (quoting Ortega v. Belony, 185 So. 3d 538, 539-40 (Fla. 3d DCA 2015)). That said, the evidence must support a jury’s zero-dollar award for it to stand. And where “the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering…
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Pogue v. Garib, 254 So. 3d 503 (Fla. 4th DCA 2018)…ses after finding a permanent injury. Id. at 524. The plaintiff moved for an additur; the trial court granted the motion. Id. The defendant appealed. Because the evidence was in conflict, we reversed. Id. at 525; see also Ortega v. Belony, 185 So. 3d 538, 540 (Fla. 3d DCA 2015). Here, the evidence was similarly conflicting. The plaintiff’s doctor, and 6 only medical expert, testified that her injuries were permanent, and though he had not previously done so, he now recommended surgery. T…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffis v. Hill, 230 So. 2d 143 (Fla. 1969)
- Republic Servs. OF Fla., L.P. v. Poucher, 851 So. 2d 866 (Fla. 1st DCA 2003)
- Pitcher v. David J. Zappitell, Zappitell & Kapral, P.A., 160 So. 3d 145 (Fla. 4th DCA 2015)
- Food Fair Stores, Inc. v. Morgan, 338 So. 2d 89 (Fla. 2d DCA 1976)
- Diaz v. State, 419 So. 2d 393 (Fla. 3d DCA 1982)
- Terry Plumbing & Home Servs., Inc. v. Berry, 900 So. 2d 581 (Fla. 3d DCA 2004)