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Suggested Verdict Form In Florida Personal Injury Cases Creates Potential For Ambiguous Results, Additur Awards

Florida personal injury attorneys are familiar with the jury verdict form regularly used. Specifically, the question asked to jurors, leading into a plaintiff's entitlement to non-economic damages, generally reads "Did the plaintiff sustain a permanent injury within a reasonable degree of medical probability as a result of the incident complained of?" The jury is required to answer the question yes or no in order to determine whether or not to move onto the section that would award damages for non-economic losses such as pain and suffering. However, an interesting issue arose recently in Margaret Catinella v. Kevin Boyles, as Personal Representative of the Estate of Stanley L. Lowery, Deceased, a Circuit Court case out of Palm Beach County, Fla., Case no. 50-2009-CA 23523, 2012 Jury Verdicts LEXIS 13558.  

In Catinella, plaintiff's counsel had requested that the court use the most recent suggested Supreme Court form of verdict. The new suggested verdict is contained in the model instructions. Model Instruction No. 1 includes an instruction on the threshold issue of permanency. 4-121 Florida Forms of Jury Instruction § 121.61. The suggested form verdict does not have a separate question or interrogatory asking the jury whether the plaintiff has suffered a permanent injury. The problem with dropping the permanency interrogatory is highlighted in this case. The verdict form stated: "If the greater weight of the evidence shows that Margaret Catinella's injuries were in whole or in part permanent within a reasonable degree of medical probability, please answer question 2." Question 2 simply asked the jury to state the amount of noneconomic damages suffered by Ms. Catinella. In answering question 2, the jury wrote "0".

In ruling on plaintiff's motion for additur, Judge Glenn D. Kelley found that this verdict form created an ambiguity. The jury's verdict could be interpreted that the jury found no permanent injury. The zero could also mean that the jury found a permanent injury, but concluded that that the plaintiff had not suffered any noneconomic damages. 

The court concluded that the jury found a permanent injury, but did not award noneconomic damages. By placing a zero on the verdict form, it appeared to the court that the jury intended to answer question 2 which they were instructed to do only if they found a permanent injury. Although a jury is not required as a matter of law to award non-economic damages, See, e.g. Allstate Insurance Company v. Manasse, 707 So.2d 1110 (Fla. 1998) (failure to award future intangible damages after finding a permanent injury and awarding future medical expenses not inadequate as a matter of law); Deklyen v. Truckers World, Inc., 867 So.2d 1264, 1267 (Fla. 5th DCA 2004) (an award of economic damages, including future damages, does not as a matter of law require award of future non-economic damages),  such a verdict is inadequate if the evidence is undisputed, or substantially undisputed, that a plaintiff has experienced, or will experience, pain and suffering); Parrish v. City of Orlando, 53 So.3d 1999, 1203 (Fla. 5th DCA 2011); Ellender v Bricker, 967 So.2d 1088 (Fla. 2d DCA 2007); Deklyen, 867 So.2d at 1268.  

In Catinella, the court found that the jury's award of past medical expenses evidenced a finding that the plaintiff's surgery was caused by the accident. Under such circumstances, and considering the evidence in the case, a zero damage award for past pain and suffering could not be adduced in a logical manner by reasonable persons. The court concluded that an additur of $75,000 was required for past pain and suffering damages. However, the court also found no additur was required for future pain and suffering. The court noted in its order granting plaintiff's motion for additur that using the suggested form was a mistake it would not repeat.  

Plaintiff's counsel: John Richardson, Esq., 1645 Palm Beach Lakes Blvd., 9th Floor, West Palm Beach, Florida 33401

Defense counsel: Stephen E. Knoerr, Esq., 700 S.E. Third Avenue, Suite 401, Ft. Lauderdale, Florida 33316

For similar Florida cases in which a motion for additur was granted:

1) Autumn Russell v. Phyllis Popa, 2011 FL Jury Verdicts Rptr. LEXIS 345 (FL Jury Verdicts Rptr. 2011) (Although the jury found that plaintiff had sustained a permanent injury, no damages were awarded for pain and suffering. On May 26, 2011, the court granted plaintiff's motion for additur and/or new trial in part.); 2) Michael R. Ojeda v. Jimmy Mendez, 2011 FL Jury Verdicts Rptr. LEXIS 337 (FL Jury Verdicts Rptr. 2011); 3) Kevin Moore v. Eastman Aggregates, Inc. (2009 Jury Verdicts LEXIS 413810). 

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