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FLNC, Inc. v. Ramos

Florida Court of Appeals, Fifth District

May 19, 2017

FLNC, INC., D/B/A FLORIDA LIVING NURSING CENTER, Appellant/Cross-Appellee,
v.
JOISE RAMOS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SONIA MERCADO-BOSQUE, Appellee/Cross-Appellant.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Orange County, John Marshall Kest, Judge.

          Patrick H. Telan, Philip J. Wallace, and Matthew E. Moats, of Grower, Ketcham, Eide, Telan, & Meltz, P.A., Orlando, for Appellant/Cross-Appellee.

          Victor Kline, of Greenspoon Marder, PA, Orlando, and Michael J. Carter, of Morgan & Morgan, Orlando, for Appellee/Cross-Appellant.

          EDWARDS, J.

         This 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.

         Ms. 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.

         The 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.

         Nursing 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.

         It was 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.

          The 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.

         The 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).

         Because 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, and damages.

         The Estate's motion for additur or new trial was based upon section 768.74, Florida Statutes ...


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