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Sanchez v. Martin

Florida Court of Appeals, Fourth District

June 6, 2018

RAUL SANCHEZ and CARMEN DE JESUS SANTANA, Appellants,
v.
BILLY MARTIN, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. CACE14-016458 (09).

          Paul L. Nettleton of Carlton Fields Jorden Burt, P.A., Miami, for appellants.

          Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, and Jeff S. Abers of Fazio, DiSalvo & Abers, P.A., Fort Lauderdale, for appellee.

          Damoorgian, J.

         Raul Sanchez and Carmen De Jesus Santana ("Defendants") appeal the judgment entered against them following a jury trial in Billy Martin's ("Plaintiff") automobile negligence action. Finding merit in Defendants' argument that the trial court erred in instructing the jury on aggravation of a preexisting condition, we reverse.

         In 2014, a county public transit bus collided with a vehicle driven by Defendant Santana after she pulled in front of the bus. Plaintiff, who was a passenger on the bus, fell from his seat as a result of the impact. Complaining of back pain, Plaintiff was taken by ambulance to a hospital, evaluated, and discharged that same day. In the months thereafter, Plaintiff sought medical treatment for lower back pain and stiffness which he claimed was caused by the accident. Following an evaluation and a series of x-rays, which revealed a moderate amount of arthritis and some degenerative disc disease, Plaintiff was initially diagnosed with a lower back sprain and began receiving physical therapy. Plaintiff eventually underwent an MRI which indicated that he suffered from diffuse idiopathic skeletal hyperostosis ("DISH"). The MRI also purportedly showed that Plaintiff had a three-level disc herniation in his lower back.

         At trial, Plaintiff's only theory of liability was that Defendant Santana's negligence caused the accident and that the impact of the accident caused the three-level disc herniation in his lower back. Although Defendants admitted negligence, they disputed both causation and damages. Specifically, Defendants argued that the accident did not cause any of the alleged injuries and that Plaintiff's subjective complaints of pain, stiffness, and spasms were related to his various preexisting degenerative conditions.

         In support of his theory, Plaintiff presented the testimony of Dr. Hinkes, the orthopedic surgeon who treated him after the accident. Dr. Hinkes testified that Plaintiff had three herniated discs in his lower back and that within a reasonable degree of medical certainty the injury was caused by the accident. In arriving at this conclusion, Dr. Hinkes relied on his records, Plaintiff's MRI, and Plaintiff's representation that he did not have back problems prior to the accident. Dr. Hinkes conceded, however, that there was no way of conclusively determining whether the herniation of those three discs occurred before, during, or after the accident by looking at the MRI alone. On cross-examination, Dr. Hinkes acknowledged that the MRI indicated Plaintiff suffered from DISH and that Plaintiff had this condition for a long time. He also acknowledged that over time, DISH can cause spasms, pain, stiffness, and various complications. Dr. Hinkes testified, however, that Plaintiff's DISH was located above the three herniated discs. Dr. Hinkes did not testify that Plaintiff's reported injuries from the accident caused an aggravation or activation of a preexisting condition.

         Defendants, in turn, presented the testimony of Dr. Garcia, the orthopedic surgeon who performed Plaintiff's compulsory medical examination, and Dr. Raskin, the diagnostic radiologist who reviewed Plaintiff's MRI. Dr. Garcia opined that if Plaintiff did sustain an injury from the accident, it was a non-permanent strain/sprain to the lower back. Dr. Garcia further opined that the MRI showed no objective findings that would indicate recent trauma, but rather showed findings consistent with advanced degenerative changes stemming from Plaintiff's DISH, arthritis, and degenerative disc disease. Moreover, as to the three-level disc herniation testified to by Dr. Hinkes, Dr. Garcia explained that any such herniation was caused over the course of several years by Plaintiff's disc osteophyte complex and not by an acute traumatic event.

         During cross-examination, Plaintiff's counsel asked Dr. Garcia whether the accident could have aggravated any of Plaintiff's preexisting conditions. Dr. Garcia responded that there was "no evidence that it aggravated the preexisting condition" and that "the indications of spasm in the neck and the lower back would be most consistent with a sprain/strain, not with an aggravation of a preexisting condition." Plaintiff's counsel thereafter generally asked whether having a preexisting condition could make a person more susceptible to injury, and Dr. Garcia responded that it could.

         Dr. Raskin testified that the MRI showed no traumatic disc herniation. Rather, consistent with Dr. Garcia's assessment, Dr. Raskin opined that the MRI showed that Plaintiff had disc osteophyte complex, DISH, and bone calcifications, conditions which take years to develop and which could not have been caused by the accident. During cross-examination, Plaintiff's counsel asked Dr. Raskin whether trauma from an automobile accident could either aggravate or cause a spine problem, and Dr. Raskin responded that it could. Unlike Dr. Garcia, however, Dr. Raskin was not specifically asked whether the accident aggravated or activated any of Plaintiff's preexisting conditions.

         During the charge conference, Plaintiff requested the following aggravation of preexisting condition instruction:

If you find that [Defendant Santana] caused a bodily injury, and that the injury resulted in an aggravation of an existing disease or physical defect or activation of a latent disease or physical defect, you should attempt to decide what portion of [Plaintiff's] condition resulted from the aggravation or activation. If you can make that determination, then you should award only those damages resulting from the aggravation or activation. However, if you cannot make that determination, or if it cannot be said that the ...

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