WILLIAM J. VICKERS, APPELLANT,
v.
ANNIE D. THOMAS, APPELLEE.
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William Vickers appeals a jury verdict awarding damages to Annie Thomas for injuries from an automobile accident. The Florida District Court of Appeal, Fifth District affirms the award for future medical expenses but reverses the award for future loss of earning capacity, finding the evidence speculative, and remands for remittitur or new trial on that issue.
The court affirmed the award for future medical expenses as supported by sufficient evidence of reasonably certain costs for palliative care, but reversed the award for future loss of earning capacity because evidence showed only Thomas's speculative fear of job loss rather than diminished capacity to labor. The court found the improper closing argument attacking defense counsel's expert selection, while erroneous, did not rise to the level of highly prejudicial and inflammatory conduct warranting a new trial.
[1] Recovery for future medical expenses must be based on evidence demonstrating that the expenses are reasonably certain to be incurred.
[2] A plaintiff must present reasonably certain evidence that their capacity to labor has been diminished to establish a claim for loss of future earning capacity.
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Join FLexlaw to unlock all legal intelligence“Florida law restricts recovery of future medical expenses to those expenses reasonably certain to be incurred.”
Establishes the standard for awarding future medical expenses damages and supports the court's reasoning for affirming that portion of the award.
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Join FLexlaw to unlock all legal intelligenceVickers and Thomas were involved in an automobile accident. Thomas sued Vickers for bodily injuries; Vickers admitted responsibility but disputed whet…
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William Vickers appeals a final judgment entered against him following a jury verdict in favor of Annie Thomas. Vickers and Thomas were involved in an automobile accident. Thomas sued Vickers, claiming bodily injuries as a result of the accident. Vickers admitted responsibility but disputed that the accident was the cause of Thomas's permanent injuries.1 The jury awarded Thomas compensatory damages, including future medical expenses and future loss of earning capacity. On appeal, Vickers argues that the trial court abused its discretion in certain evidentiary rulings, in denying his motions for remittitur, and *414in denying his motion for new trial based on Thomas's counsel's improper closing argument. We affirm in part, reverse in part, and remand for a new trial or remittitur on the issue of damages for future loss of earning capacity.2
"Florida law restricts recovery of future medical expenses to those expenses reasonably certain to be incurred." Volusia Cty. v. Joynt, 179 So.3d 448, 452 (Fla. 5th DCA 2015) (citing Loftin v. Wilson, 67 So.2d 185, 188 (Fla. 1953) ). At trial, Thomas presented evidence of her need for and the costs of continued palliative care, cervical surgery, and lumbar surgery. The jury awarded her $353,100 for future medical expenses. Vickers argues that the jury's award for these damages was speculative in nature because it was not "reasonably certain" that Thomas would obtain cervical and lumbar surgery.
Thomas's pain management doctor, Dr. Dunson, testified that Thomas's reasonably certain costs for continued palliative care would be between $525,000 and $850,000. Thomas's orthopedic surgeon, Dr. Masson testified that, while Thomas's condition was stable, cervical surgery was appropriate to increase her functional capacity and quality of life. He also testified that if cervical surgery was successful, there might not be a need for a follow-up lumbar surgery. However, he explained that if Thomas's disability and quality of life issues persisted despite the cervical surgery and conservative care, lumbar surgery would be the next reasonable step. Dr. Masson testified that cervical surgery would cost $90,000 to $120,000, and that lumbar surgery would cost $60,000 to $90,000. While courts cannot allow juries to award amounts of damages beyond what is reasonably supported by the evidence presented, see, e.g., Festival Fun Parks, LLC v. Bellamy, 123 So.3d 684, 685-86 (Fla. 4th DCA 2013), the evidence presented in this case regarding the reasonably certain need for and costs of Thomas's palliative care alone was sufficient to support the jury's award of future medical expenses. See Metrolimo, Inc. v. Lamm, 666 So.2d 552 (Fla. 3d DCA 1995) (upholding future medical expenses award because the amount awarded was "within the range testified to by the plaintiff's witnesses").
However, we find the evidence of Thomas's future loss of earning capacity insufficient. To establish a claim for loss of future earning capacity, a plaintiff must introduce "reasonably certain evidence that the capacity to labor has been diminished." Rasinski v. McCoy, 227 So.3d 201, 204 (Fla. 5th DCA 2017) (quoting Hubbs v. McDonald, 517 So.2d 68, 69 (Fla. 1st DCA 1987) ). Here, the evidence presented revolved around Thomas's fear of losing her job rather than any diminished capacity to continue her employment; such fear is speculative and cannot serve as a proper basis for these damages. See Joynt, 179 So.3d at 451. Therefore, we reverse the jury award for future loss of earning capacity and remand for the trial court either to enter a remittitur under section 768.043(2), Florida Statutes, or to grant a new trial solely on the issue of damages for loss of earning capacity. See Rasinski, 227 So.3d at 203 (citing Truelove v. Blount, 954 So.2d 1284, 1289-90 (Fla. 2d DCA 2007) ).
Lastly, we feel compelled, as we have in *415the past,3 to comment upon the closing arguments made by Thomas's counsel, Jeffrey Byrd. Leading up to the trial, Thomas had sought recovery for cervical, lumbar, and shoulder injuries allegedly arising from the automobile accident. Four days before the trial, she withdrew her claim for the shoulder injury and successfully obtained a ruling in limine to prevent discussion of the withdrawn claim. During the defense's case, Vickers presented the testimony of Dr. Hurbanis, an orthopedic surgeon specializing in shoulder surgery, who conducted a compulsory medical examination on Thomas. During closing arguments, Thomas's counsel made several comments related to Dr. Hurbanis's qualifications to testify about cervical and lumbar injuries as a shoulder specialist.
While it was appropriate to question Dr. Hurbanis's qualifications to address Thomas's injuries, the closing argument by Thomas's counsel improperly attacked Vickers's counsel's decision to hire Dr. Hurbanis as an expert in the case, based on his specialization in shoulder injuries. This occurred despite the successful motion in limine on the withdrawn shoulder injury claim. The attack on Vickers's counsel for electing to hire Dr. Hurbanis was disingenuous and improper. See Rosario-Paredes v. J.C. Wrecker Serv., 975 So.2d 1205, 1208 (Fla. 5th DCA 2008) (noting that arguments that attack opposing counsel are not appropriate and will not be condoned). The trial court sustained Vickers's objection, but it denied his request for a curative instruction. Although the trial court incorrectly declined to give the curative instruction, an improper closing argument will not result in a new trial unless the statements are highly prejudicial, inflammatory, and improper. See Riggins v. Mariner Boat Works, Inc., 545 So.2d 430, 433 (Fla. 2d DCA 1989) (citing Decks, Inc. v. Nunez, 299 So.2d 165 (Fla. 2d DCA 1974) ). Under the circumstances of this case, we find that the improper comments were not so highly prejudicial and inflammatory as to deny Vickers a fair trial. The trial court's failure to give the curative instruction was harmless on the facts of this case.4 See § 59.041, Fla. Stat. (2011) ; Bakery Assocs., Ltd. v. Rigaud, 906 So.2d 366, 367 (Fla. 3d DCA 2005).
We note that this trial occurred before our opinion in Rasinski issued. Thomas's counsel's closing arguments have gathered the attention of this Court and if they continue, should gather the attention of trial courts as well. We caution that the use of such improper comments, and the effect on a litigant's right to a fair trial, will lead to a new trial in the appropriate case. See City of Orlando v. Pineiro, 66 So.3d 1064 (Fla. 5th DCA 2011) ; Johnnides v. Amoco Oil Co., 778 So.2d 443 (Fla. 3d DCA 2001).
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
EISNAUGLE, J., and EGAN, R., Associate Judge, concur.
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Rhoades v. Lilmissette Rodriguez, 359 So. 3d 359 (Fla. 5th DCA 2023)…ttorney Gobel to personally pay for the reasonable costs and attorney fees incurred by Plaintiff in preparation for, and participation in, the 1 Attorney Byrd has also been criticized by our court for unprofessional conduct. See Vickers v. Thomas, 237 So. 3d 412, 415 (Fla. 5th DCA 2017); Rasinski v. McCoy, 227 So. 3d 201, 202 n.1 (Fla. 5th DCA 2017); Beekie v. Morgan, 751 So. 2d 694, 695–96 (Fla. 5th DCA 2000). ---PAGE 7--- hearing on Plaintiff’s motions for sanctions. Furthermore, it would be appropriat…
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Bowers v. Tillman, 323 So. 3d 322 (Fla. 5th DCA 2021)…occur. He is correct. But the irony in that message is not lost on this Court, considering we have repeatedly criticized Mr. Byrd’s own unprofessional conduct in prior cases, particularly as it relates to his closing arguments. See Vickers v Thomas, 237 So. 3d 412, 415 (Fla. 5th DCA 2017); Rasinski v. McCoy, 227 So. 3d 201, 202 n.1 (Fla. 5th DCA 2017); see also, Beekie v. Morgan, 751 So. 2d 694, 695-96 (Fla. 5th DCA 2000) (noting that Mr. Byrd’s antics could be characterized as ‘Beavis–and–Butthead’ like, or…
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Nieves v. State Farm Mut. Auto. Ins. Co., 248 So. 3d 240 (Fla. 5th DCA 2018)…for our court and our sister courts to limit a new trial to one item of damages in the event one of the parties rejects an additur or remittitur. See State Farm Mut. Auto. Ins. v. Harmon, 237 So. 3d 423, 424 (Fla. 5th DCA 2018) ; Vickers v. Thomas, 237 So. 3d 412, 413 (Fla. 5th DCA 2017), reh'g denied (Jan. 17, 2018); Rasinski v. McCoy, 227 So. 3d 201, 204 (Fla. 5th DCA 2017) ; State Farm Mut. Auto. Ins. v. Brewer, 191 So. 3d 508, 512 (Fla. 2d DCA 2016) ; Olen Props. Corp. v. Cancel, 178 So. 3d 437, 437 (Fla…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)
- Loftin v. Wilson, 67 So. 2d 185 (Fla. 1953)
- D'Andre Combs v. State, 954 So. 2d 1284 (Fla. 1st DCA 2007)
- Herbello v. Perez, 754 So. 2d 840 (Fla. 3d DCA 2000)
- Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989)
- City OF Orlando v. Pineiro, 66 So. 3d 1064 (Fla. 5th DCA 2011)
- Decks, Inc. v. Nunez, 299 So. 2d 165 (Fla. 2d DCA 1974)
- Volusia Cnty. v. Joynt, 179 So. 3d 448 (Fla. 5th DCA 2015)
- Johnnides v. Amoco OIL Co., Inc., 778 So. 2d 443 (Fla. 3d DCA 2001)
- Rosario-Paredes v. J.C. Wrecker Serv. & Bill Farmer, 975 So. 2d 1205 (Fla. 5th DCA 2008)