Error to Award Past Medical Expenses Without Pain and SufferingPersonal Injury
In the case of Gloria Cabrera v. Wal-Mart Stores East, LP, Case Number 3D19-2301 (Fla. 3rd DCA December 16, 2020), Florida’s Third DCA held that it was error for a jury to award damages for past medical expenses but nothing for pain and suffering.
Facts And Injury
Ms. Cabrera slipped and fell on water at a Walmart store and sustained right knee pain, low back pain, and tingling in her extremities. She underwent medical treatment but was not a candidate for surgery. She continued to suffer from pain and a limited range of motion.
The plaintiff’s orthopedic surgeon confirmed that Ms. Cabrera had a herniated disc and a misaligned patella. He considered surgery as a future possibility but that she was not presently a surgical candidate.
Walmart chose to defend this case at trial without an expert and, instead, suggested during cross-examination that Ms. Cabrera’s problems were due to pre-existing arthritis and corpulence.
The jury returned an award for past medical expenses but nothing for pain and suffering.
New Trial or Additur Needed, But Careful Consideration May Still Be Needed
The Third DCA relied upon the case law below and ordered either a new trial or an additur, as approprate.
A body of well-developed precedent guides our analysis in determining
whether an award of past noneconomic damages is warranted. The relevant decisions inform us that where “the trial evidence of the existence of such is substantially undisputed,” and “when a jury finds that the plaintiff suffered injuries that required treatment as evidenced by an award of past medical expenses,” a verdict devoid of past noneconomic damages is inadequate, as a matter of law. Arias, 276 So. 3d at 56; see Manasse, 707 So. 2d at 1111-12; Ellender, 967 So. 2d at 1093.
Arias v. Porter, 276 So. 3d 49, 55 (Fla. 2d DCA 2019);
Allstate Insurance Co. v. Manasse, 681 So. 2d 779, 784-85 (Fla. 4th DCA 1996) (Klein, J., dissenting) reversed by 707 So. 2d 1110 (Fla. 1998);
Ellender v. Bricker, 967 So. 2d 1088, 1092 (Fla. 2d DCA 2007).
However, a plaintiff should be careful to remember that even a nominal award for pain and suffering can satisfy that no error occurred at a trial. This would be a reason for both the plaintiff and Walmart to settle this case rather than pursue a second trial (which would be required if a new trial judge has been assigned to the case). Alternatively, asking the judge for additur (if available as a remedy), is risky for both sides as well. A judge may be unwilling to find that only a nominal amount of pain and suffering occurred because of the manifest weight of the evidence (remember that Walmart failed to present any of its own expert testimony and even referenced that the plaintiff experienced pain during closing argument).
Choose A Personal Injury Attorney In Lakeland, Florida
Russo Law offers a free consultation and representation to plaintiffs in slip and fall cases in Florida. If you have been injured in a slip and fall, please call us to schedule your free consultation with a Lakeland personal injury lawyer.