final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No.
B. Kwavnick and Kelly Lenahan of Cooney Trybus Kwavnick
Peets, PLC, Fort Lauderdale, for appellants.
Rubio of the Law Office of Ramon Rubio, P.L., Fort
Lauderdale, for appellee.
appeal from an order granting a new trial in a rear end
collision case, resulting in a small verdict for the
plaintiff, the court determined that comments in voir dire
regarding insurance, as well as testimony regarding the
defendant's research in medical school, improperly swayed
the jury. We conclude that an objection to the comment on
insurance was not properly preserved and cannot serve as
grounds for a new trial. The comment on the defendant's
medical research amounted to admissible
"humanizing" evidence. Even if it did not, given
the lack of explanation of how such evidence created a
"grossly inadequate" verdict, we conclude that the
court abused its discretion in granting a new trial. We
reverse for entry of a judgment consistent with the
appellee/plaintiff, Mery Cohen, filed suit against
appellants/defendants, Joseph Black (driver) and Elizabeth
Black (owner), alleging Black was negligent in causing an
automobile collision in August 2007. The parties gave
different versions of the accident. Cohen testified that she
was stopped at a red light in a turn lane on University Drive
in Broward County when she was struck from behind by Black.
Black, on the other hand, testified that he was also stopped
for the light behind Cohen's vehicle when the light
turned green and the vehicles started to move. Cohen slammed
on her brakes, and Black hit the rear end of her vehicle. The
collision was minor, causing only around $1, 600 damage to
Cohen's bumper. Some statements on Cohen's
application for no-fault insurance benefits contradicted her
testimony. The description of the accident on the form stated
that the light had turned green, although at trial she denied
making that statement.
age fifty-three at the time of the accident, testified her
neck went forward and back during the collision. She did not
seek treatment that day, but she went to Broward Rehab Center
for pain in her shoulders, neck (left and right), and lower
back. She was seen by a neurologist who diagnosed her with
cervical spine strain/sprain, ordered physical therapy, and
prescribed medication. X-rays showed narrowing of the disc
space at multiple levels of the cervical spine. X-rays of the
lower back also showed widespread narrowing of the disc space
throughout the lumbar spine. An MRI taken three months later
showed bulging lumbar discs, causing some nerve impingement.
then was seen by an orthopedic surgeon who diagnosed her as
having herniated discs in the lower back. He recommended a
lumbar discogram. She also had an MRI of her cervical region,
which revealed numerous herniated discs. Her surgeon then
recommended a cervical discogram. Her pain from these
impingements occurred on the left side of her neck.
underwent the discogram in January 2008, which eliminated her
low back pain. In June 2008, her surgeon performed a
discogram on her cervical spine. Post-operatively, she did
well, and the procedure eliminated the pain on the left side
of her neck. However, in October 2008, fourteen months after
the accident, she returned to her orthopedist with complaints
of right-sided neck pain. He treated her with an injection in
the neck and pain medication. By November, he released her
and advised that she should return only on an as needed
basis. She did not return for further visits.
nine months, Cohen saw no doctors. Then, in July 2009, she
saw a series of orthopedists for right-sided neck pain. New
MRIs of the neck were performed, and the orthopedist
recommended a cervical fusion.
later, she saw Dr. Dare, an orthopedic surgeon, as she was
still complaining of right-sided neck pain. After more tests,
he performed a cervical discectomy and fusion in October
2011, almost four years after the accident. Dr. Dare opined
that the accident in August 2007 caused the disc herniation
that ultimately led to the surgery that he performed.
Cohen's medical bills totaled $240, 000, particularly
because Dr. Dare charged $176, 000 for the fusion.
defense offered the testimony of Dr. Rolando Garcia, an
orthopedic spine surgeon, who examined Cohen and her medical
records. He reviewed the x-rays of Cohen taken the day after
the accident and did not find anything that he attributed to
the accident. He stated that the thoracic and lumbar x-rays
were normal. The cervical x-rays showed only arthritic or
degenerative changes, including the levels where Dr. Dare
eventually operated. Dr. Garcia testified that the left-sided
neck pain resolved after the accident, and fourteen months
after the accident, right-sided neck pain commenced. He did
not conclude that the right-sided pain, which manifested
itself fourteen months after the accident, was related to the
accident. He opined that she did not suffer a permanent
injury as a result of the accident, and the cervical fusion
performed by Dr. Dare in 2011 was not necessitated by, nor
attributed to, the accident.
closing argument, Cohen's attorney argued that she had
sustained an aggravation of a pre-existing condition and
asked the jury to award $240, 000 in past medical expenses
and $40, 000 for future office visits (no request for future
surgery). Counsel requested a "floor" of $700, 000
for past pain and suffering during the nine years since the
accident and a minimum of $200, 000 for future pain and
suffering. Black contended that Cohen did not suffer a
permanent injury in the accident. Her complaints of low back
and left-sided neck pain were resolved within a year, and the
right-sided pain was not related to her injuries in the