FLNC, INC., D/B/A FLORIDA LIVING NURSING CENTER, Appellant/Cross-Appellee,
JOISE RAMOS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SONIA MERCADO-BOSQUE, Appellee/Cross-Appellant.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, John Marshall Kest,
Patrick H. Telan, Philip J. Wallace, and Matthew E. Moats, of
Grower, Ketcham, Eide, Telan, & Meltz, P.A., Orlando, for
Kline, of Greenspoon Marder, PA, Orlando, and Michael J.
Carter, of Morgan & Morgan, Orlando, for
appeal and cross-appeal are from the trial court's order
granting a partial new trial on the issues of causation and
damages, but denying a new trial on liability in a nursing
home negligence case. The jury returned a verdict finding
that FLNC, Inc. D/B/A Florida Living Nursing Center
("Nursing Home") negligently caused injury to its
patient, Sonia Mercado-Bosque. The jury awarded Joise Ramos,
son of Sonia Mercado-Bosque and Personal Representative of
Ms. Mercado's Estate ("the Estate"), stipulated
medical expenses, but did not award damages for pain and
suffering or other intangible damages. Because liability was
hotly contested and there are strong indications that the
jury rendered an improper compromised verdict, we conclude
that the trial court erred in ordering only a partial new
trial. Accordingly, we remand for a new trial on the issues
of liability, causation, and damages.
Mercado had several significant health problems, including
multiple sclerosis and diabetes, that progressively impaired
her mobility and left her unable to care for herself. Her
lack of mobility, permanently contracted legs, and other
health problems made her susceptible to developing skin
ulcers, which Nursing Home's staff tried to avoid by
frequently repositioning her and by using special footwear.
While a resident at Nursing Home, she developed skin ulcers
and an infection of her left foot, which resulted in
gangrene. Her treating doctors decided that amputation of
both legs above the knee was the best way to avoid future
skin ulcers on her lower extremities; they amputated her left
leg at the knee level. Ms. Mercado passed away after her
surgery due to unrelated causes.
Estate sued Nursing Home, claiming that the skin ulcers,
infection, gangrene, and need for amputation resulted from
Nursing Home's staff negligently caring for Ms. Mercado.
At trial, the Estate's medical expert testified that
Nursing Home's staff did not regularly and frequently
reposition Ms. Mercado and that the resulting constant
pressure led to the skin ulcers, infection, and gangrene. The
Estate's expert also testified that Nursing Home's
staff failed to make and keep proper records of the care
provided to Ms. Mercado.
Home's nursing expert testified that the record keeping
was proper and that the records confirmed that Ms. Mercado
was frequently repositioned and otherwise well cared for in
terms of preventing and treating any skin ulcers. Nursing
Home's additional medical expert testified that Ms.
Mercado's diabetes impaired circulation to her feet,
which made her extremely susceptible to infection, and, when
combined with her leg contractures, made the knee-level
amputation unavoidable. Nursing Home's medical expert
explained that if Nursing Home's failure to reposition
Ms. Mercado caused the left foot ulcer, Ms. Mercado would
have had skin ulcers at other locations, but she did not.
Those experts additionally testified that the care and
treatment provided to Ms. Mercado met or exceeded the
standard of care. In this battle of the experts, liability
and causation were hotly contested.
clear from the testimony that Ms. Mercado experienced
discomfort and pain; however, the cause, nature, extent, and
what portion was related to the left foot, the amputation,
the leg contractures, or her other health conditions were
disputed. The parties stipulated at trial that the relevant
past medical expenses totaled $13, 309.23. The jury
deliberated for approximately four hours, sent out two
written damage-related questions to the court, and then
returned a verdict finding that Nursing Home negligently
caused injury to Ms. Mercado. The jury awarded $13, 309.23
for past medical expenses but did not award any amount for
pain, suffering, or other intangible damages. Neither party
requested the court to poll the jury.
Estate filed a motion seeking additur or a new trial only on
damages, which Nursing Home opposed. The trial court issued a
detailed order granting an additur of $9500 after finding the
evidence of intangible damages was "sparse" and
noting that it was difficult to determine which of the pain
and suffering was negligence-related. The additur order
included a proviso that a trial on damages alone would be
held if the additur was rejected. Nursing Home moved the
court to reconsider and sought a new trial on liability and
damages. The Estate rejected the additur and sought a new
trial on damages only. The trial court denied Appellant's
motion for reconsideration, but entered an order for a new
trial on causation and damages but not on liability. Both
sides appeal the order.
trial court found that it was "inconceivable . . . that
a jury of reasonable persons could find negligence and
causation . . . but not award at least some damages for the
intangible elements." Our review of the record and
briefs leads us to conclude that "it is more than merely
conceivable that the jury 'interwove the issues of
liability and damages on the jury form in an inconsistent
way, suggestive of a compromise on liability, possible
confusion on the law of damages, or both.'"
Calloway v. Dania Jai Alai Palace, Inc., 560 So.2d
808, 810 (Fla. 4th DCA 1990) (quoting Rivera v.
Aldrich, 538 So.2d 1390, 1392 (Fla. 3d DCA 1989)). The
hallmarks of a compromised verdict in a tort claim are a
clearly inadequate damage award coupled with a finding of
liability in a case where liability was hotly contested.
See Watson v. Builders Square, Inc., 563 So.2d 721,
722 (Fla. 4th DCA 1990). An improper compromised verdict on
the issue of liability is highly probable when the jury
returns a verdict finding that the defendant negligently
caused injury to plaintiff, but "awarded [the plaintiff]
her [past] medical expenses without considering non-economic
damages." Food Lion v. Jackson, 712 So.2d 800,
802 (Fla. 5th DCA 1998); see also Ochlockonee Banks
Rest., Inc. v. Colvin, 700 So.2d 1229, 1231 (Fla. 1st
DCA 1997) (holding that verdict of liability that awarded
past medical expenses only and nothing for pain and suffering
clearly shows it was result of compromised verdict where
negligence was seriously disputed); Bucci v. Auto
Builders S. Fla., Inc., 690 So.2d 1387, 1389 (Fla 4th
DCA 1997), rev'd on other grounds, 709 So.2d
1381 (Fla. 1998) (holding that jury's damages-related
questions and verdict of liability with clearly inadequate
damages of only medical expenses but no non-economic damages
in case where liability was hotly contested strongly
suggested compromised verdict).
the Estate rejected the additur of $9500 ordered by the trial
court, the remedy for a compromised verdict is a new trial.
Here, the trial court ordered a new trial only on the issues
of causation and damages, which pleased neither side. The
Estate argues that the new trial should be limited to
determining only damages, while Nursing Home asserts that the
new trial should address the issues of liability, causation,
Estate's motion for additur or new trial was based upon
section 768.74, Florida Statutes ...