FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Volusia County, Sandra C.
R. Jones and Mark A. Matovina, of Politis & Matovina,
P.A., Port Orange, for Appellant.
Elizabeth C. Wheeler, of Elizabeth C Wheeler, P.A., Orlando,
R., Associate Judge.
Paul Gustavsson appeals the denial of his motion for additur
or new trial following judgment entered in his favor, as well
as the denial of his subsequent motion for reconsideration.
Gustavsson also argues the trial court abused its discretion
by declining to grant a new trial on damages and liability
based on a compromised verdict. We reverse on the issue of
past non-economic damages only and affirm on the issue of
future non- economic damages. We also affirm on the issue of
liability based on a compromised verdict because Gustavsson
did not preserve that issue for appeal.
sued appellees Carol Marie Holder and Sean Leonard Beck after
being struck and injured as a pedestrian by a vehicle owned
by Holder and driven by Beck. With respect to damages, the
parties did not dispute that Gustavsson sustained a serious
and permanent injury as a result of the accident. He
sustained a displaced right femur fracture that required
surgical repair with a titanium rod. He also suffered a
facial laceration, which required plastic surgery that
resulted in permanent facial scarring. Recovery from the leg
injury did not go well. Over the three years following the
accident, Gustavsson was diagnosed with three MRSA infections
of the leg that required at least four additional surgical
procedures, including irrigation and debridement of the
infected tissue and removal of the titanium rod, which was
believed to be the source of the infection. During this time,
Gustavsson spent more than eighteen weeks in the hospital,
and at trial, he claimed $507, 874.95 in past medical
his treating physicians agreed that the subject motor vehicle
accident was the cause of the infection and that the initial
injury, as well as the subsequent infections, were very
painful for Gustavsson. In addition, orthopedic surgeon
Thomas Broderick, M.D., performed three compulsory medical
examinations on behalf of Beck, culminating in a final
written report in January 2015. According to Dr. Broderick,
Gustavsson's right knee had stabilized by that time but
had a permanent decrease in motion. The right thigh had
suffered significant atrophy, and the knee examination was
consistent with chronic inflammation. Dr. Broderick agreed
that the leg injury would have been painful, opined that
Gustavsson sustained a permanent injury, and assigned a 25%
permanent impairment rating related to the accident.
close of the evidence, the trial court directed a verdict for
Gustavsson on the issue of permanency and submitted the case
to the jury. The jury returned a verdict finding Beck 1%
negligent and Gustavsson 99% negligent. The jury awarded
Gustavsson $507, 667.95 for medical damages, nearly the exact
total of the claimed past medical bills, but awarded no
damages for pain and suffering, physical impairment, mental
anguish, inconvenience, aggravation of disease or physical
defect, or loss of capacity for the enjoyment of life.
light of the directed verdict on permanency and the award of
past medical damages, the parties agreed the jury verdict was
inconsistent, and the court sent the jury back for further
deliberation with the following instruction:
I have found your verdict to be an inconsistent one.
Because of the Court's finding of permanent injury and
the award that you all determined was appropriate of past
medical expenses, there must be an accompanying award of pain
and suffering in Paragraph 5 of the verdict form.
So I am sending you back to deliberate in that regard,
looking at Paragraph 5, and your determination in that regard
must be based on the evidence that you have heard.
minutes later, the jury returned the same verdict for medical
damages and added only $1000 for past non-economic damages