JURY AWARD FOR PAST NON-ECONOMIC DAMAGES INADEQUATE AS A MATTER OF LAW--ARGUMENT REGARDING COMPROMISED VERDICT WAIVED WHEN ISSUE WAS NOT RAISED UNTIL PLAINTIFF FILED MOTION FOR RECONSIDERATION OF THE TRIAL COURT’S DENIAL OF A MOTION FOR ADDITUR OR NEW TRIAL.
Gustavsson v. Holder, 43 Fla. L. Weekly D122 (Fla. 5th DCA January 5, 2018):
After a plaintiff was hit as a pedestrian and suffered a displaced right femur fracture that required surgical repair with a titanium rod, facial lacerations requiring surgery and permanent scarring, and where the plaintiff suffered three accident-related MRSA infections, the jury awarded him over $507,000 in past medical expenses for the more than 18 weeks he spent in the hospital. However, the jury awarded nothing for pain and suffering, inconvenience, etc.
The parties agreed that the verdict was inconsistent, and the court sent the jury back for further deliberations. The jury then came back 11 minutes later with an award for $1,000 in past non-economic damages and $1,000 for future non-economic damages.
Plaintiff moved for an additur or in the alternative a new trial, but made no mention of a request for a new trial based on the issue of liability due to a compromised verdict. The trial court denied the motion without a hearing, and plaintiff moved for reconsideration on similar grounds. The trial court actually allowed a hearing on the motion, and for the first time plaintiff argued there was a compromised verdict.
Unfortunately, the court found the plaintiff had failed to preserve the issue of a new trial on liability based on a compromised verdict, because the initial denial of the motion was jurisdictional, and not subject to reconsideration or modification. The court did remand, however, for either an additur or a new trial and past non-economic damages.