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Joseph Benjamin Black v. Cohen

Florida Court of Appeals, Fourth District

April 25, 2018

MERY COHEN, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. CACE08-27555 (14).

          Warren B. Kwavnick and Kelly Lenahan of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, for appellants.

          Ramon Rubio of the Law Office of Ramon Rubio, P.L., Fort Lauderdale, for appellee.

          Warner, J.

         In this 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 jury's verdict.

         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.

         Cohen, 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.

         Cohen 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.

         Cohen 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.

         For 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.

         A year 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.

         The 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.

         In 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 ...

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