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Inc. v. Yandell

Florida Court of Appeal, Fourth District

November 16, 2011

AARMADA PROTECTION SYSTEMS 2000, INC. and Jeffrey Steven Duble, Jr., Appellants,
Lance YANDELL and Maureen Yandell, Appellees.

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[Copyrighted Material Omitted]

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Elizabeth K. Russo and Susan S. Lerner of Russo Appellate Firm, P.A., Miami and Flanagan, Maniotis & Berger, P.A., West Palm Beach, for appellants.

Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, for appellees.


Aarmada Protection Systems 2000, Inc., and Jeffery Duble, Jr., timely appeal a final judgment entered on a jury verdict awarding the plaintiffs, Lance and Maureen Yandell, damages arising out of an automobile accident. Appellants present three claims of trial court error: (1) that the trial court erred in excluding evidence that the plaintiff's medical treatment and costs were not reasonably or necessarily caused by the accident; (2) that the court erred in denying a directed verdict as to the medical costs incurred by plaintiff where his doctor referred him to the doctor's own clinic for tests in violation of the Patient's Self-Referral Act; and (3) that a new trial should have been ordered because of the cumulative effect of improper closing argument. We affirm, finding that (a) the claim regarding the exclusion of evidence has not been properly preserved; (b) the evidence does not support the claim that plaintiff's doctor violated the Patient's Self-Referral Act; and (c) although some of the closing argument remarks of plaintiff's counsel were improper, many were not objected to, or where objections were made and sustained, no request for curative instruction was made nor mistrial requested. Appellants have not established that the remarks were harmful, nor have appellants established that they were incurable or that they impaired the public interest in the system of justice.

Lance Yandell sued Aarmada and its driver, Duble, in April of 2008 for an auto accident which occurred in August 2007 when a vehicle owned by Aarmada and driven by Duble rear-ended Yandell's vehicle, forcing it into the back of another vehicle. Yandell began to notice pain in his neck and back within fifteen minutes of the accident. Paramedics transported him by ambulance to the hospital. In the emergency room, he was diagnosed with a neck sprain and lumbar spine strain. The emergency room doctor prescribed anti-inflammatory drugs and a muscle relaxer, and Yandell was released.

Within a few days of the accident, Yandell began seeking medical treatment with several doctors. He first went to see Dr. Wexler, an orthopedic surgeon. Dr. Wexler diagnosed a sprain/strain and recommended physical therapy.

Six days after the accident, Yandell began treating with a chiropractor, Dr. Philip Scuderi. Dr. Scuderi prescribed physical therapy, massages, and chiropractic care three times a week, and sent him for an

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MRI in September 2007. According to Dr. Scuderi, Yandell's MRI revealed disc herniation and bulging, which injuries Dr. Scuderi attributed to the August 2007 automobile accident. In March 2008, Dr. Scuderi determined that, from a chiropractic standpoint, Yandell had reached maximum medical improvement and had suffered a permanent injury. Dr. Scuderi, who had received a letter of protection from plaintiff's counsel, charged approximately $40,000 for his services.

In November 2007, while still treating with Dr. Scuderi, Yandell was referred to Dr. Theofilos, a spinal neurosurgeon.[1] Yandell presented with complaints of neck pain, back pain, tingling in the arms and feet, and pain radiating to his hip and buttock region. Dr. Theofilos noted that the patient had no previous low back or neck symptoms, and had never previously been treated for such. Dr. Theofilos reviewed Yandell's September 2007 MRIs, concluding that Yandell had a broad-based disc herniation and an annular tear. Dr. Theofilos initially administered epidural injections, but they did not relieve Yandell's pain.

Dr. Theofilos ordered additional MRIs, which confirmed his diagnosis after the first MRI scan. He performed a discogram to help pinpoint which discs were causing Yandell's pain. Finding that Dr. Wexler's conservative treatments had not done much for Yandell, Dr. Theofilos presented him with the options of living with the pain, having open surgery, or trying a less-invasive procedure. Yandell opted for a less-invasive procedure called an intradiscal decompression. Through the time of trial, Dr. Theofilo's treatment of Yandell amounted to approximately $55,000.

At trial, Dr. Theofilos opined that Yandell's injuries were caused by the August 2007 accident, not by the fact that he played football, because he had no history of prior back and neck pain before the accident. While acknowledging that Yandell had age-related degeneration in his discs, the doctor opined that degeneration was not the cause of the plaintiff's pain. He ascribed a 10% permanent impairment to Yandell's lumbar spine, and a 7% permanent impairment to his cervical spine.

As to future treatment, Dr. Theofilos opined that Yandell would need fusion surgery at some point in the future, with surgical fees, anesthesia charges, and hospital fees bringing the total cost to between $100,000 and $120,000. This surgery— which Yandell testified that he planned to undergo— would not restore the plaintiff to his pre-accident condition, but would simply decrease his pain ...

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