WILLIAM J. VICKERS, Appellant,
ANNIE D. THOMAS, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Seminole County, Jessica J.
C. Flowers, of Kubicki Draper, P.A., Ocala, for Appellant.
Jeffrey M. Byrd and Heather A. Trombly, of Jeffrey M. Byrd,
P.A., Orlando, for Appellee.
Vickers appeals a final judgment entered against him
following a jury verdict in favor of Annie Thomas. Vickers
and Thomas were involved in an automobile accident. Thomas
sued Vickers, claiming bodily injuries as a result of the
accident. Vickers admitted responsibility but disputed that
the accident was the cause of Thomas's permanent
injuries. The jury awarded Thomas compensatory
damages, including future medical expenses and future loss of
earning capacity. On appeal, Vickers argues that the trial
court abused its discretion in certain evidentiary rulings,
in denying his motions for remittitur, and in denying his
motion for new trial based on Thomas's counsel's
improper closing argument. We affirm in part, reverse in
part, and remand for a new trial or remittitur on the issue
of damages for future loss of earning capacity.
law restricts recovery of future medical expenses to those
expenses reasonably certain to be incurred." Volusia
Cty. v. Joynt, 179 So.3d 448, 452 (Fla. 5th DCA 2015)
(citing Loftin v. Wilson, 67 So.2d 185, 188 (Fla.
1953)). At trial, Thomas presented evidence of her need for
and the costs of continued palliative care, cervical surgery,
and lumbar surgery. The jury awarded her $353, 100 for future
medical expenses. Vickers argues that the jury's award
for these damages was speculative in nature because it was
not "reasonably certain" that Thomas would obtain
cervical and lumbar surgery.
pain management doctor, Dr. Dunson, testified that
Thomas's reasonably certain costs for continued
palliative care would be between $525, 000 and $850, 000.
Thomas's orthopedic surgeon, Dr. Masson testified that,
while Thomas's condition was stable, cervical surgery was
appropriate to increase her functional capacity and quality
of life. He also testified that if cervical surgery was
successful, there might not be a need for a follow-up lumbar
surgery. However, he explained that if Thomas's
disability and quality of life issues persisted despite the
cervical surgery and conservative care, lumbar surgery would
be the next reasonable step. Dr. Masson testified that
cervical surgery would cost $90, 000 to $120, 000, and that
lumbar surgery would cost $60, 000 to $90, 000. While courts
cannot allow juries to award amounts of damages beyond what
is reasonably supported by the evidence presented, see,
e.g., Festival Fun Parks, LLC v. Bellamy, 123
So.3d 684, 685-86 (Fla. 4th DCA 2013), the evidence presented
in this case regarding the reasonably certain need for and
costs of Thomas's palliative care alone was sufficient to
support the jury's award of future medical expenses.
See Metrolimo, Inc. v. Lamm, 666 So.2d 552 (Fla. 3d
DCA 1995) (upholding future medical expenses award because
the amount awarded was "within the range testified to by
the plaintiff's witnesses").
we find the evidence of Thomas's future loss of earning
capacity insufficient. To establish a claim for loss of
future earning capacity, a plaintiff must introduce
"reasonably certain evidence that the capacity to labor
has been diminished." Rasinski v. McCoy, 227
So.3d 201, 204 (Fla. 5th DCA 2017) (quoting Hubbs v.
McDonald, 517 So.2d 68, 69 (Fla. 1st DCA 1987)). Here,
the evidence presented revolved around Thomas's fear of
losing her job rather than any diminished capacity to
continue her employment; such fear is speculative and cannot
serve as a proper basis for these damages. See
Joynt, 179 So.3d at 451. Therefore, we reverse the jury
award for future loss of earning capacity and remand for the
trial court either to enter a remittitur under section
768.043(2), Florida Statutes, or to grant a new trial solely
on the issue of damages for loss of earning capacity. See
Rasinski, 227 So.3d at 203 (citing Truelove v.
Blount, 954 So.2d 1284, 1289-90 (Fla. 2d DCA 2007)).
we feel compelled, as we have in the past,  to comment upon
the closing arguments made by Thomas's counsel, Jeffrey
Byrd. Leading up to the trial, Thomas had sought recovery for
cervical, lumbar, and shoulder injuries allegedly arising
from the automobile accident. Four days before the trial, she
withdrew her claim for the shoulder injury and successfully
obtained a ruling in limine to prevent discussion of the
withdrawn claim. During the defense's case, Vickers
presented the testimony of Dr. Hurbanis, an orthopedic
surgeon specializing in shoulder surgery, who conducted a
compulsory medical examination on Thomas. During closing
arguments, Thomas's counsel made several comments related
to Dr. Hurbanis's qualifications to testify about
cervical and lumbar injuries as a shoulder specialist.
it was appropriate to question Dr. Hurbanis's
qualifications to address Thomas's injuries, the closing
argument by Thomas's counsel improperly attacked
Vickers's counsel's decision to hire Dr. Hurbanis as
an expert in the case, based on his specialization in
shoulder injuries. This occurred despite the successful
motion in limine on the withdrawn shoulder injury claim. The
attack on Vickers's counsel for electing to hire Dr.
Hurbanis was disingenuous and improper. See
Rosario-Paredes v. J.C. Wrecker Serv., 975 So.2d 1205,
1208 (Fla. 5th DCA 2008) (noting that arguments that attack
opposing counsel are not appropriate and will not be
condoned). The trial court sustained Vickers's objection,
but it denied his request for a curative instruction.
Although the trial court incorrectly declined to give the
curative instruction, an improper closing argument will not
result in a new trial unless the statements are highly
prejudicial, inflammatory, and improper. See Riggins v.
Mariner Boat Works, Inc., 545 So.2d 430, 433 (Fla. 2d
DCA 1989) (citing Decks, Inc. v. Nunez, 299 So.2d
165 (Fla. 2d DCA 1974)). Under the circumstances of this
case, we find that the improper comments were not so highly
prejudicial and inflammatory as to deny Vickers a fair trial.
The trial court's failure to give the curative
instruction was harmless on the facts of this
case. See § 59.041, Fla. Stat.
(2011); Bakery Assocs., Ltd. v. Rigaud, 906 So.2d
366, 367 (Fla. 3d DCA 2005).
that this trial occurred before our opinion in
Rasinski issued. Thomas's counsel's closing
arguments have gathered the attention of this Court and if
they continue, should gather the attention of trial courts as
well. We caution that the use of such improper comments, and
the effect on a litigant's right to a fair trial, will
lead to a new trial in the appropriate case. See City of
Orlando v. Pineiro, 66 So.3d 1064 (Fla. 5th DCA 2011);
Johnnides v. Amoco Oil Co., 778 So.2d 443 (Fla. 3d
IN PART; REVERSED IN ...