CLEMENTE ARIAS v. MARY ANNA PORTER

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CLEMENTE ARIAS, )
)
Appellant, )
)
v. ) Case No. 2D17-4469
)
MARY ANNA PORTER; ANGELIQUE )
FLORES; and AMARILYS ARIAS, )
)
Appellees. )
)
Opinion filed May 29, 2019.
Appeal from the Circuit Court for
Hillsborough County; Elizabeth G. Rice,
Judge.
Kathryn E. Lee and Kevin Britt Woods of
Woods Trial Law, Tampa, for Appellant.
Ezequiel Lugo of Banker Lopez Gassler
P.A., Tampa, for Appellees Mary Anna
Porter and Angelique Flores.
No appearance for remaining Appellee.
SALARIO, Judge.
In this personal injury action against Mary Anna Porter and Angelique
Flores arising from an automobile accident, a jury awarded Clemente Arias damages for
past and future medical expenses but no past or future noneconomic damages, which
here were argued to consist principally of pain and suffering. Mr. Arias appeals from
that judgment and challenges an order of the trial court denying his motion for additur
on grounds that the jury's zero verdict on noneconomic damages—both past and
future—was inadequate. We reverse the zero verdict for past noneconomic damages
because, under our court's precedents, that verdict was inadequate as a matter of law.
We affirm as to future pain and suffering, however, because the trial court was within its
discretion to conclude that the jury fairly resolved that question against Mr. Arias based
on the disputed evidence at the trial.
I.
The accident and lawsuit. After a trip to the grocery store with his
daughter, Mr. Arias stopped the car that he was driving at a red light. At the same time,
Ms. Flores, who was driving a pickup truck owned by Ms. Porter, made an illegal left
turn into the intersection. Ms. Flores hit another car that was in the intersection, which
caused that car to hit the one Mr. Arias was driving. Mr. Arias did not receive medical
treatment at the scene. Nor did he go to the hospital after the accident.
Almost four years later, Mr. Arias filed a complaint asserting a claim for
negligence against Ms. Flores, a claim that Ms. Porter was vicariously liable for Ms.
Flores's negligence under the dangerous instrumentality doctrine, and a claim against
Ms. Porter for negligent entrustment.1 Mr. Arias's wife joined as a plaintiff and asserted
a claim against Ms. Flores and Ms. Porter for loss of consortium. The case proceeded
through discovery and headed toward a jury trial.
As the facts developed in pretrial proceedings, the core of Mr. Arias's
claims became that Ms. Flores negligently caused the accident and that the accident, in
1The complaint also asserted claims against other parties that were
dropped prior to trial and are not relevant here.
-2-
turn, injured his neck and back and resulted in damages for medical expenses and pain
and suffering. Ms. Flores and Ms. Porter admitted that Ms. Flores was negligent and
that her negligence was the cause of the accident. And they did not assert that Mr.
Arias was comparatively negligent. So the case went to trial in streamlined form; all the
jury had to figure out were the damages, if any, that the accident caused Mr. Arias to
suffer.
Mr. Arias's trial theory and evidence. Mr. Arias's theory at trial was that
the accident caused both a permanent injury to his neck and a permanent aggravation
of an already-existing condition in his back. He testified that he started to have pain in
his neck and back in the days immediately following the wreck. Mr. Arias said he had
not experienced neck pain before. After several days, the pain became so severe that
his wife got him an appointment with orthopedic doctors he had previously seen for
already-existing and ongoing back problems.
The doctor's visit led to MRIs of the neck and back which showed
herniations of two discs in the neck. More conservative treatments did not resolve Mr.
Arias's complaints of neck pain. Three years and ten months after the accident, Mr.
Arias had surgery to replace the two herniated discs. The surgery resulted in a
significant reduction in pain, but Mr. Arias continues to deal with it. There was evidence
from Mr. Arias's doctors that he will need future treatment, likely including a future
surgery. There was also evidence from Mr. Arias's doctors that his neck problems were
causally related to the accident and that they would be permanent.
In addition to the neck pain, Mr. Arias complained of back pain after the
accident. That, however, was not new. Mr. Arias suffered with back problems for years
before the accident and had gone through three back surgeries, the last being roughly
-3-
one year before the accident. Mr. Arias complained that after the accident, his back
pain was substantially worse and was radiating into his legs. The pain was treated with
various therapies, including epidural steroid injections performed under anesthesia and
radiofrequency ablations. Mr. Arias's current treating physician opined that Mr. Arias
was suffering increased pain because the accident aggravated an existing back
condition, that the aggravation would be permanent, and that he would continue to need
treatment in the future, including a likely surgery on the back.
Mr. Arias argued that he was entitled to recover $68,514.19 for past
medical expenses. The evidence of Mr. Arias's future medical expenses ranged from
as little as $173,711 to as much as $2,500,000. The potential future medical expenses
included the cost of future neck surgery at $120,000, future back surgery at $100,000,
and many different and recurring treatments for pain in both the neck and the back. In
view of the testimony that his injuries were permanent, Mr. Arias also sought
noneconomic damages to compensate him for past and future pain and suffering. See
§ 627.737(2), Fla. Stat. (2011). In closing argument, Mr. Arias's counsel told the jury to
award pain and suffering damages in an amount it determined to be appropriate in light
of Mr. Arias's life expectancy of twenty-five to twenty-seven years.
Ms. Flores and Ms. Porter's trial theory and evidence. The theory Ms.
Flores and Ms. Porter pursued in defense of the case was that the accident did not
cause a permanent injury to Mr. Arias's back or neck and that any significant medical
expenses and pain and suffering were attributable not to the accident but rather to
conditions Mr. Arias had at the time of the accident or suffered after it. This theory
involved an attempt to show that Mr. Arias's complaints of ongoing injury and pain were
-4-
not credible. The chief evidentiary components supporting the defense theory were as
follows:
 Evidence of preexisting degeneration in the neck and back: The evidence
showed that Mr. Arias suffered from degenerative disc disease in his back
beginning at least in 1997, with complaints of pain radiating into his legs. Mr.
Arias worked as a mechanic, which involved a lot of heavy lifting and stooping
and took a toll on his body over the course of years. He had three surgeries
on his back in the years before the accident and, after the third, was no longer
able to work as a mechanic. The MRIs taken shortly after the accident also
showed degeneration in the neck, although it was less severe than in the
back and whether it could explain Mr. Arias's complaints of neck pain was
disputed.
 Evidence of other car accidents: There was evidence that Mr. Arias was in a
car accident in the early 1990s that caused him pain through his whole body.
There was also evidence that Mr. Arias was in a car wreck three and one-half
years after the accident at issue here—and just three months before he had
surgery on his neck.
 Evidence that the accident may not have been severe: Mr. Arias did not
receive medical treatment at the scene and did not go to the hospital. There
was testimony that at the scene he said he was okay and did not appear to be
injured. There was also testimony that Mr. Arias helped put groceries in his
son-in-law's car at the accident scene.
 Evidence disputing Mr. Arias's subjective complaints of neck pain: In an
application for social security disability benefits submitted six months after the
accident, Mr. Arias complained of pain and other symptoms related to
degenerative disc disease in his back and attributed that pain to his work as a
mechanic. He made no mention of any pain in his neck. There was also
evidence of substantial gaps in Mr. Arias's treatment for back and neck pain—
which Ms. Flores and Ms. Porter argued demonstrated the absence of such
pain—as well as some medical records stating that Mr. Arias was not
complaining of neck pain.
 Evidence that Mr. Arias's back pain was similar both before and after the
accident: There was evidence that Mr. Arias continued to have back pain
after his last surgery, that his back pain six months after the accident was
similar to his pain before it, that his medication after the accident was the
same as his medication before the accident, and that Mr. Arias himself
attributed his ongoing back pain not to the accident but rather to his work
history as a mechanic.
 Expert testimony on causation, permanency, and damages: A defense
medical expert opined that Mr. Arias did not suffer a permanent injury to his
-5-
neck or back as a result of the accident and that the accident would not cause
Mr. Arias to incur any future medical expenses. He further opined that Mr.
Arias's complaints of pain and course of seeking treatment in the days
following the accident were consistent with a sprain-strain injury at the neck,
which is common in this kind of accident, which is temporary, and which
should have resolved within eight to twelve weeks of the accident—which
here coincided roughly with one of the gaps in Mr. Arias's treatment referred
to above. The expert opined that Mr. Arias's ongoing symptoms were the
result of already-existing degeneration of the neck and spine.
Based on this and other evidence, Ms. Flores and Ms. Porter argued that
to the extent the accident caused any injury to Mr. Arias, it was only a sprain-strain
injury to the neck that was not permanent. They asserted that Mr. Arias was entitled to
no more than $7000 for past medical expenses for treatment of the sprain-strain,
nothing for future medical expenses, and nothing for noneconomic damages. They
argued that to the extent the jury decided to award something for pain and suffering, the
total verdict (inclusive of medical expenses) should not exceed $50,000.
The jury's verdict and Mr. Arias's motion for additur. The jury was
presented with interrogatories about causation and damages, and its answers did not
conform to either side's theory of the case. The jury found that (1) Ms. Flores's
negligence was a legal cause of injury to Mr. Arias; (2) that Mr. Arias had damages of
$50,000 for past medical expenses, less than the $68,514.19 he asked for and more
than the $7000 the defendants argued for; and (3) that Mr. Arias had damages of
$200,000 for future medical expenses, at the very low end of the range his evidence
supported ($173,711 to $2,500,000) and more than the zero sum argued for by the
defendants. The jury also found that Mr. Arias suffered a permanent injury, although it
was not asked to and did not specify whether the permanent injury was in the neck, the
back, or both. The jury awarded Mr. Arias nothing for past or future noneconomic
damages.
-6-
Mr. Arias filed a motion for additur under section 768.043, Florida Statutes
(2016), arguing that the jury's zero verdict for damages for past and future noneconomic
damages was inadequate in light of the evidence presented at trial. After hearing
argument, the trial court denied the motion reasoning that the evidence as to whether
Mr. Arias had noneconomic damages caused by the accident was disputed and, under
those circumstances, that it would be error to "veto the jury verdict by granting a motion
for additur." This is Mr. Arias's timely appeal.
II.
Section 768.043 governs additur in motor vehicle cases and provides in
relevant part that "it shall be the responsibility of the court, upon proper motion, to
review the amount of" the jury's "award to determine if such amount is clearly . . .
inadequate in light of the facts and circumstances" and, if it finds the amount
inadequate, to order an additur. § 768.043(1). A trial court determines whether a
verdict is inadequate by reference to five statutory criteria: (1) whether the verdict was
infected by "prejudice, passion, or corruption"; (2) whether the jury ignored the evidence
or misconceived the merits; (3) whether the jury took improper elements of damages
into account or engaged in speculation; (4) whether the award bears a reasonable
relation to the damages proved and the injury suffered; and (5) whether the award is
supported by the evidence and could have been logically determined by reasonable
people. See § 768.043(2)(a)-(e). This assessment obviously involves a sense of touch
that can be delivered only by the trial judge that heard and saw the evidence.
Accordingly, we review an order denying a motion for additur under the deferential
abuse of discretion standard. See § 768.043(3) ("It is the intent of the Legislature to
vest the trial courts of this state with discretionary authority to review the amounts of
-7-
damages awarded by a trier of fact . . . ."); Sukraj v. Phoeung, 241 So. 3d 911, 912 (Fla.
2d DCA 2018) ("This court reviews the denial of a motion for new trial or additur for an
abuse of discretion."). We may reverse only where the trial court has made a decision
that fails the test of reasonableness. See generally Canakaris v. Canakaris, 382 So. 2d
1197, 1203 (Fla. 1980) (discussing the reasonableness test for review of the
discretionary decisions of a trial judge).
The crux of Mr. Arias's argument on appeal is that because the jury found
in his favor on causation and permanency and awarded damages for past and future
medical expenses, it was required under the circumstances to also award past and
future noneconomic damages. Applying our court's precedents to the trial court's order
here, we reverse the trial court's order denying an additur with respect to past
noneconomic damages because that verdict was inadequate as a matter of law and
affirm the order with respect to future noneconomic damages.
The supreme court laid the groundwork for our court's most recent
decisions on this subject in Allstate Insurance Co. v. Manasse, 707 So. 2d 1110 (Fla.
1998). There, a jury verdict found a permanent injury and awarded past and future
medical expenses and past noneconomic damages but awarded nothing for future
noneconomic damages. Id. at 1111. The plaintiff filed a motion for a new trial arguing
that the verdict was inadequate, which the trial court denied. Id. The Fourth District
reversed, holding that the future noneconomic damages verdict was inadequate in light
of the jury's findings of permanent injury and its award of future medical expenses. Id.(citing Allstate Ins. Co. v. Manasse, 681 So. 2d 779, 784 (Fla. 4th DCA 1996)). It
certified to the supreme court the question of whether a verdict is inadequate as a
-8-
matter of law when a jury finds permanency and awards past and future medical
expenses but fails to award future noneconomic damages. Id. at 1110.
The supreme court answered that question in the negative and quashed
the Fourth District's opinion. Id. at 1112. Holding that a jury is not required as a matter
of law to award damages for future pain and suffering simply because it found a
permanent injury and awarded future medicals, the court quoted approvingly from
Judge Klein's dissent in the Fourth District, which posited a difference between past and
future noneconomic damages. Id. at 1111-12. He explained:
Future damages are, by nature, less certain than past
damages. A jury knows for a fact that a plaintiff has
incurred past medical expenses, and, when it finds
those expenses to have been caused by the accident
there is generally something wrong when it awards
nothing for past pain and suffering. The need for
future medical expenses is often in dispute, however,
as it was here. It does not necessarily therefore
follow . . . that an award of future medical expenses
requires an award of noneconomic damages.
Id. (emphasis added) (quoting Manasse, 681 So. 2d at 785 (Klein, J., dissenting)).
The supreme court further held that the trial court did not abuse its
discretion in denying the motion for new trial on the facts of the case. Id. at 1111.
There, the defendant presented evidence disputing permanency, disputing that the
plaintiff would need to have future care or would necessarily experience pain, and
suggesting that her pain could be explained by reasons unrelated to the accident. Id.
The trial court held that "[t]he jury could reasonably have concluded . . . that future pain
and suffering was either not proven by the greater weight of the evidence or was not
compensable." Id. On the facts presented, the supreme court found no abuse of
discretion. Id.
-9-
Since Manasse, our decisions with respect to past and future
noneconomic damages have hinged on whether the evidence of such damages is
substantially undisputed (if yes, then a zero verdict is inadequate as a matter of law; if
no, then it is not) and have simultaneously suggested that an award of past (as
distinguished from future) noneconomic damages is required when a jury finds
permanency and awards past medical expenses. For example, in Allstate Insurance
Co. v. Campbell, 842 So. 2d 1031, 1034-35 (Fla. 2d DCA 2003), we considered whether
a jury verdict in an automobile negligence case that awarded past and future medical
expenses, but no past or future noneconomic damages, was inadequate. After quoting
Judge Klein's Manasse dissent, we held that "[s]ince the jury found that the Campbells
suffered injuries that required treatment . . . as evidenced by the award of past medical
costs, the jury's failure to award even nominal past economic damages was not
supported by the weight of the evidence and must be reversed." Id. at 1034-35(emphasis added). In contrast, we held that the jury was not required to award anything
for future noneconomic damages, even though it also awarded future medical
expenses, because the evidence of future noneconomic damages was "disputed" and
the jury's award of future medical expenses was minimal. Id. at 1034 n.1, 1035.
Five years later in Ellender v. Bricker, 967 So. 2d 1088, 1093 (Fla. 2d
DCA 2007), we addressed the denial of a motion for additur or new trial in an
automobile negligence case in which the jury found causation and permanency,
awarded past and future medical expenses of about half of what the plaintiff asked for,
and awarded nothing for past or future noneconomic damages. Id. at 1090, 1093. At
the outset, we stated that "where 'the evidence is undisputed or substantially undisputed
that a plaintiff has experienced and will experience pain and suffering . . ., a zero award
- 10 -
for pain and suffering is inadequate as a matter of law.' " Id. at 1093 (quoting Dolphin
Cruise Line, Inc. v. Stassinopoulos, 731 So. 2d 708, 710 (Fla. 3d DCA 1999)).
But we then did two things that suggest that we also view past
noneconomic damages differently from future noneconomic damages in this context.
First, we quoted our decision in Campbell to show that when a jury awards past
medicals, it must at least award nominal past noneconomic damages and reversed the
trial court's order on past noneconomic damages. Id. Second, we began our
discussion of future noneconomic damages by quoting Manasse to explain that while
there is "generally something wrong" with a verdict that finds permanency and awards
medical expenses but fails to award past noneconomic damages, that is not true with
respect to future noneconomic damages. Ellender, 967 So. 2d at 1093 (quoting
Manasse, 707 So. 2d at 1111-12). The key is whether the evidence of those damages
is substantially undisputed. Id. at 1093.
We reversed the denial of relief with respect to future noneconomic
damages because the trial yielded "undisputed evidence of permanent injury and a
need for treatment in the future." Ellender, 967 So. 2d at 1093, 1094 (citing Garrett v.
Miami Transfer Co., 964 So. 2d 286, 291 (Fla. 4th DCA 2007)). In particular, the trial
evidence was undisputed that the plaintiff had permanent injuries to the back and neck
that would require future medical treatment and would produce pain—even a defense
expert corroborated that much—such that an award of at least some future pain and
suffering damages was required. Id. at 1094. Applying Ellender to a similar set of facts,
we reached the same result the next year in Campbell v. Griffith, 971 So. 2d 232, 236
(Fla. 2d DCA 2008), relying solely on the reasoning that the evidence on both past and
future noneconomic damages was substantially undisputed.
- 11 -
And recently, in Sukraj, the plaintiff in an automobile accident case alleged
permanent injury to his shoulder, neck, and back. 241 So. 3d at 912. A jury found
permanency and awarded in excess of $53,000 for past medicals and $50,000 for future
medicals but nothing for past or future noneconomic damages. Id. The trial court
denied the plaintiff's motion for additur or a new trial. Id. We reversed with respect to
past noneconomic damages because "the evidence that Sukraj had suffered past pain
and suffering in his shoulder as a result of the accident was undisputed." Id. In
reaching that conclusion, we did not say that we were affording any legal significance to
the fact that the jury had found permanency and awarded future medicals. We affirmed
as to future noneconomic damages "because the evidence that Sukraj had suffered
past pain and suffering for the injuries to his neck and back and would experience future
pain and suffering as a result of the accident was disputed at trial." Id.
We now apply these precedents to the circumstances of this case.
Past noneconomic damages. As the foregoing shows, our decisions on
past noneconomic damages can be read to support two propositions: (1) that a zero
verdict for past noneconomic damages is inadequate as a matter of law when the trial
evidence of the existence of such is substantially undisputed and (2) that when a jury
finds that the plaintiff suffered injuries that required treatment as evidenced by an award
of past medical expenses, a zero award cannot stand. It is not necessarily clear how
these concepts relate to one another—whether each operates independently, whether
one is subordinate to another, or whether the cases focusing an award of past medicals
reflect no more than Judge Klein's observation in Manasse that there is "generally
something wrong," 681 So. 2d at 785 (Klein, J., dissenting), with a verdict that awards
past medicals and no past noneconomic damages instead of a hard-and-fast rule. Cf.
- 12 -
Gebis v. Oaks Condo. Ass'n, 937 So. 2d 1284, 1286 (Fla. 4th DCA 2006) ("However,
simply because 'there is generally something wrong' when a jury awards damages for
past medical expenses but nothing for past pain and suffering does not mean there is
always something wrong."). We need not resolve the matter here, however, because
the zero verdict in this case fails as a matter of law under either measure.
Clearly, this is a case in which the jury recognized an injury that required
treatment as evidenced by the award of past medicals, such that this case would fall
within the scope of cases like Campbell and Ellender that suggest an award of at least
nominal past noneconomic damages is required when the jury finds permanency and
awards past medicals. Further, this is also a case where, at a minimum, the trial
evidence of at least some past noneconomic damages resulting from a neck injury was
substantially undisputed. Mr. Arias and his family members testified that he
experienced the onset of pain in the neck within days after the incident. Although the
defense through cross-examination, impeachment, and affirmative evidence raised
substantial questions concerning the permanency of any injury and whether the
accident caused Mr. Arias any ongoing neck pain, there was no dispute that Mr. Arias
had at least some pain in the neck in the days immediately following the accident and
that he sought treatment for that pain. Moreover, the defense medical expert testified
that Mr. Arias's subjective complaints were consistent with a sprain-strain injury and that
sprain-strain injuries are typical consequences of the type of accident involved here. Cf.
Ellender, 967 So. 2d at 1094 (finding evidence of future noneconomic damages
substantially undisputed where, among other things, a defense expert agreed that the
plaintiff would suffer permanent symptoms and complaints). In closing, defense counsel
did not seriously contend that Mr. Arias had no neck pain as a result of the accident but
- 13 -
merely argued that the jury would be "well within its rights" and "entitled" to say so.
Under these circumstances, that Mr. Arias experienced some pain and suffering
because of the accident was not substantially disputed. As a matter of law, then, it was
error to deny the motion for additur to the extent it challenged the jury's award of no past
noneconomic damages. See Sukraj, 241 So. 3d at 912; Griffith, 971 So. 2d at 236.
This holding places our decision in this case in line with the decisions we have reached
in every other additur or new trial opinion in an automobile case in which there has been
an award of past medical expenses and a finding of permanency since the supreme
court decided Manasse—reversing a zero award of past noneconomic damages and
requiring an award of at least nominal past noneconomic damages.
At oral argument, counsel for Ms. Flores and Ms. Porter contended that
the jury could have properly awarded no past noneconomic damages for pain and
suffering related to a neck injury because the evidence of whether any injury to Mr.
Arias's neck was permanent was disputed. That is of no legal moment. Section
627.737(2), which requires permanency as a condition to a plaintiff's recovery of
noneconomic damages in automobile accident cases, does not say that a plaintiff may
only recover noneconomic damages attributable to permanent injuries; it says instead
that a plaintiff may not recover noneconomic damages unless his injury "consists in
whole or in part" of a permanent injury. See § 627.737(2)(b), Fla. Stat. (2011). In view
of that statutory language, the supreme court has held that "as long as part of the bodily
injury arising out of the motor vehicle accident involves a permanent injury . . . the
plaintiff can recover noneconomic damages relating to his pain, suffering, mental
anguish, and inconvenience for all of the injuries related to the accident." Wald v.
Grainger, 64 So. 3d 1201, 1207 (Fla. 2011); see also Rolon v. Burke, 112 So. 3d 118,
- 14 -
120 (Fla. 2d DCA 2013) (holding that a jury properly awarded noneconomic damages
for all injuries suffered by a plaintiff where the evidence established that one was
permanent). Here, the jury found that there was a permanent injury, and the evidence
of noneconomic damages associated with a neck injury—whether permanent or not—
was substantially undisputed.
Future noneconomic damages. The evidence concerning any future
noneconomic damages Mr. Arias would suffer was in substantial conflict. Mr. Arias
presented a case through his own testimony and that of his family members and doctors
from which the jury could have inferred that he had permanent injuries to both the neck
and the back and would continue to suffer pain from both into the future. Ms. Flores
and Ms. Porter, in contrast, produced evidence through cross-examination and their
own expert through which the jury could have inferred that Mr. Arias's complaints of
ongoing pain in the neck and back were not credible or that any pain he would suffer in
the future was the consequence of already-existing conditions or subsequent events.
Given these conflicts in the evidence, this case fits neatly into the footprint of Manasse
because, as in that case, the jury here "could reasonably have concluded . . . that future
pain and suffering was either not proven by the greater weight of the evidence or was
not compensable." See 707 So. 2d at 1111; see also Smith v. Houston, 551 So. 2d
551, 551 (Fla. 2d DCA 1989) ("Evidence concerning Mrs. Smith's medical history, along
with conflicting expert medical opinion and challenges to Mrs. Smith's credibility, could
have led the jury to reject claims for pain and suffering . . . . The jury could have
disbelieved the testimony or attributed these damages to Mrs. Smith's preexisting
condition."); Fitzgerald v. Molle-Teeters, 520 So. 2d 645, 648 (Fla. 2d DCA 1988) ("A
jury could disbelieve a plaintiff's testimony regarding pain and suffering or attribute the
- 15 -
pain to a congenital condition."). Any conflicts in the evidence—whether Mr. Arias was
credible, whether Mr. Arias's arguable future neck pain should be attributed to the
accident or to degeneration or to something else, and whether any future pain Mr. Arias
would have in his neck and back could be attributed to the accident among them—were
for the jury to resolve. See Sukraj, 241 So. 3d at 912 ("And 'where there is conflicting
evidence [concerning noneconomic damages], the weight to be given that evidence is
within the province of the jury.' " (quoting Griffith, 971 So. 2d at 235)).
Indeed, one can make logical sense out of the verdict on future
noneconomic damages based on the evidence presented. The jury was presented with
two theories of permanent injury—permanent injury to the neck and permanent
aggravation of a preexisting condition in the back. For instance, the jury could have
found, consistent with the evidence, (1) that Mr. Arias suffered a temporary sprain-strain
injury to the neck that would have resolved within three months of the accident and (2)
that Mr. Arias suffered a permanent aggravation of the preexisting injury to the back.
Based on the evidence suggesting that plaintiff's pain and suffering from the back injury
was not materially different from what it was before the accident, the jury could also
have found that Mr. Arias failed to prove his noneconomic damages—the pain and
suffering he might suffer in the future—by a preponderance of the evidence. That, in
turn, could have led the jury to award future medical expenses without awarding
anything additional for future noneconomic damages.2
2Mr. Arias argues that the total jury award of $250,000 was so close to his
economist's total award of $242,000—which included a future neck surgery—that the
jury must have intended to find a permanent injury to the neck. While this is a
reasonable interpretation of the record, it is not the only reasonable interpretation of the
record. Given the breadth of Mr. Arias's evidence on future medicals—a wide variety of
surgeries and treatments ranging between $173,711 and $2,500,000—it is not possible
- 16 -
Mr. Arias points out that the jury's award of $200,000 in future medical
expenses was not minimal, as was the case in Campbell. To be sure, that is true as an
absolute matter—$200,000 is a lot of money—but not as a relative one. Mr. Arias
presented evidence of future medical expenses up to $2,500,000, and the jury awarded
only eight percent of that. Furthermore, although the decision in Campbell referred to
the fact that the jury award of future medical expenses was minimal, we have never
held that a jury must award future noneconomic damages when it awards more-than-
minimal future medical expenses. Given the relationship of the amount awarded for
future medical expenses to the amount requested and the conflicting evidence on
causation, permanency, and damages, the jury could have determined that Mr. Arias
simply failed to prove those future noneconomic damages caused by the accident by
the greater weight of the evidence.
Based on the record in this appeal, then, it was well within the zone of
reasonableness for the trial court to conclude that the jury's zero verdict on future
noneconomic damages was consistent with the evidence and merits of the case, bore a
reasonable relationship to the damages and injuries proved, and could be logically
adduced by reasonable people. See § 768.043(2)(b), (d), (e).3 The trial court did not
abuse its discretion when it denied Mr. Arias's motion for additur as to future
noneconomic damages.
III.
to say with certainty what the jury decided. And no one has challenged the jury's award
of future medical expenses in this appeal.
3Mr. Arias did not argue in the trial court and does not argue here that the
verdict was indicative of passion, prejudice, or corruption or that the jury considered
improper elements of damage or speculation. See § 768.043(2)(a), (c).
- 17 -
For the foregoing reasons, we conclude that the trial court erred by
denying Mr. Arias's motion for additur as to past noneconomic damages and therefore
reverse that portion of the judgment awarding no past noneconomic damages.
However, we find no error in the trial court's denial of the motion for additur as it relates
to future noneconomic damages and affirm that portion of the final judgment. We also
affirm the other portions of the final judgment without further comment. We remand the
case to the trial court for further proceedings consistent with this opinion. See §
768.043(1) ("If the court finds that the amount awarded is clearly excessive or
inadequate, it shall order a remittitur or additur, as the case may be. If the party
adversely affected by such remittitur or additur does not agree, the court shall order a
new trial in the cause on the issue of damages only."); Ellender, 967 So. 2d at 1094(remanding for further proceedings under section 768.043(1) after reversing the final
judgment based on the erroneous denial of a motion for additur of past and future
noneconomic damages).
Affirmed in part; reversed in part; remanded.
MORRIS and BLACK, JJ., Concur.
- 18 -