IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

CASE NO. 1D12-960

GEICO GENERAL INSURANCE COMPANY, Appellant, v. L.T. Case No. 09-CA-017158 ETHEL COUSIN, Appellee. ______________________________/

ON APPEAL FROM THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR

DUVAL COUNTY, FLORIDA

ANSWER BRIEF OF APPELLEE

CREED & GOWDY, P.A. Bryan S. Gowdy Florida Bar No. 0176631 bgowdy@appellate-firm.com filings@appellate-firm.com Jennifer Shoaf Richardson Florida Bar No. 067998 jricharson@appellate-firm.com filings@appellate-firm.com 865 May Street Jacksonville, FL 32204 (904) 350-0075 Telephone (904) 350-0086 Facsimile

Attorneys for Appellee

E-Copy Received Oct 4, 2012 6:25 PM

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TABLE OF CONTENTS TABLE OF CONTENTS .......................................................................................... ii TABLE OF CITATIONS .......................................................................................... v STATEMENT OF THE CASE AND FACTS .......................................................... 1 A. The evidence and argument presented to the jury regarding the award of past and future medical expenses. .......................................... 1

B. Facts relating to Defendant’s motion for new trial based on Juror Roberts’ alleged non-disclosure of litigation history. .................. 3 C. Facts relating to Defendant’s motion for new trial based on Juror Roberts’ alleged non-disclosure of litigation history ............................ 5 1. Juror Roberts’ alleged non-disclosure of litigation history. ....... 5 2. Other prospective jurors were confused by the question’s ambiguity. ................................................................................... 7

3. With one exception, Defendant failed to challenge the other prospective jurors who disclosed past litigation experience. .... 8 D. The factual basis for the trial court’s decision to grant the motion for directed verdict as to causation. ......................................................... 10

SUMMARY OF ARGUMENT ............................................................................... 13 I. The trial court had jurisdiction to vacate the new trial order .............. 13 II. The trial court did not abuse its discretion in denying a new trial based on the jury’s purported failure to reduce the future medical expenses to present value. .................................................................. 14 III. The trial court did not abuse its discretion in denying a new trial as a result of a juror’s alleged non-disclosure of prior litigation history. ................................................................................................. 15

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IV. The trial court did not err in granting the Plaintiff’s motion for directed verdict on causation. .............................................................. 15 ARGUMENT ........................................................................................................... 16 I. THE TRIAL COURT HAD JURISDICTION TO SET ASIDE THE NEW TRIAL ORDER. ............................................................... 16

A. The trial court had jurisdiction to set aside the new trial order because of its authority to rule on a timely, authorized Rule 1.530 motion directed at the final judgment. ............................ 17

B. Even if the “final” judgment were deemed to be not final, the

trial court had jurisdiction to reconsider its new trial order. .... 21 C. If Defendant’s argument is correct, this appeal must be dismissed as being untimely. .................................................... 23 II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION FOR NEW TRIAL BASED ON THE JURY’S PURPORTED FAILURE TO REDUCE TO PRESENT VALUE THE FUTURE MEDICAL EXPENSES. ............................. 25 III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING A NEW TRIAL AS A RESULT OF A JUROR’S NON-DISCLOSURE OF PRIOR LITIGATION. .............................. 29

A. The allegedly undisclosed matters were not material to Juror Roberts’ service in this case. ..................................................... 31 B. Juror Roberts did not conceal his prior litigation history in response to straightforward and direct questioning. ................. 34 C. Juror Roberts’ failure to disclose information can be attributed to Defendant’s lack of due diligence at voir dire. .................... 36

IV. THE TRIAL COURT DID NOT ERR IN DIRECTING VERDICT FOR THE PLAINTIFF ON CAUSATION. ....................................... 38

CONCLUSION ........................................................................................................ 41

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CERTIFICATE OF SERVICE ................................................................................ 41

CERTIFICATE OF COMPLIANCE ....................................................................... 41

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TABLE OF CITATIONS

CASES

Abram v. Wolicki, 864 So. 2d 18 (Fla. 4th DCA 2003) ............................................................... 19 ACA Brandon, Inc. v. Hooyman, 823 So. 2d 874 (Fla. 2d DCA 2002) .............................................................. 20 Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) ............................................................................ 39 Alesse v. Baker, 758 So. 2d 1234 (Fla. 5th DCA 2000) ........................................................... 28 Andrews v. Gulfstream Ventures, Inc., 411 So. 2d 1336 (Fla. 4th DCA 1982) ........................................................... 27 Beyer v. Leonard, 711 So. 2d 568 (Fla. 2d DCA 1997) .............................................................. 18 Birch v. Albert, 761 So. 3d 355 (Fla. 3d DCA 2000) .............................................................. 35 Budget Rent-A-Car Sys., Inc. v. Santonino, 766 So. 2d 1156, (Fla. 5th DCA 2000) .................................................... 26, 27 Burgess v. Mid-Florida Serv., 609 So. 2d 637 (Fla. 4th DCA 1992) ....................................................... 26, 28 Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002) ...................................................................... 20, 24 Collins v. Douglass, 874 So. 2d 629 (Fla. 4th DCA 2004) ............................................................. 20 Cox v. St. Josephs Hospital, 71 So. 3d 795 (Fla. 2011) .............................................................................. 40

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De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995) .......................................................... 15, 30, 31, 36 Delta Airlines Inc. v. Ageloff, 552 So. 2d 1089 (Fla. 1989) .......................................................................... 28 Fieldbinder v. Hill, 356 So. 2d 1292 (Fla. 1st DCA 1978) ........................................................... 25 Fine v. Shands Teaching Hosp. & Clinics, Inc., 994 So. 2d 426 (Fla. 1st DCA 2008) ....................................................... 30, 31 Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386 (Fla. 3d DCA 1986) ............................................................ 21 Frazier v. Seaboard Sys. R.R., Inc., 508 So. 2d 345 (Fla. 1987) ............................................................................ 18 Gamsen v. State Farm Fire & Cas. Co., 68 So. 3d 290 (Fla. 4th DCA 2011) ........................................................ 33, 34 Garnett v. McClellan, 767 So. 2d 1229 (Fla. 5th DCA 2000) ........................................................... 32 Glary v. Israel, 53 So. 3d 1095 (Fla. 1st DCA 2011) ............................................................. 21 Gordon v. Richter, 528 So. 2d 374 (Fla. 3d DCA 1987) ........................................................ 13, 17 Hall v. State, 823 So. 2d 757 (Fla. 2002) ............................................................................ 30 Hannon v. Shands Teaching Hosp. & Clinics, Inc., 56 So. 3d 879 (Fla. 1st DCA 2011) ................................................................. 6 Hentze v. Denys, 88 So. 3d 307 (Fla. 1st DCA 2012) ............................................................... 25

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Huffman v. Little, 341 So. 2d 268 (Fla. 2d DCA 1977) ........................................................ 18, 19 Hurley v. Gov’t Employees Ins. Co., 619 So. 2d 477 (Fla. 2d DCA 1993) .............................................................. 27 McCauslin v. O’Conner, 985 So. 2d 558 (Fla. 5th DCA 2008) .....................................32, 34, 35, 36, 38 Monte Campbell Crane Co., Inc. v. Hancock, 510 So. 2d 1104 (Fla. 4th DCA 1987) ........................................................... 22 Murphy v. Hurst, 881 So. 2d 1157 (Fla. 5th DCA 2004) ........................................................... 31 Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001) ............................................................................ 38 Pardo v. State, 596 So. 2d 665 (Fla. 1992) ............................................................................ 21 Polk County v. Sofka, 730 So. 2d 389 (Fla. 2d DCA 1999) .............................................................. 20 Roberts v. Tejada, 814 So. 2d 334 (Fla. 2002) ................................................................ 31, 32, 34 Rogers v. State, 33 So. 3d 805 (Fla. 1st DCA 2010) ............................................................... 16 Rosa v. Dep’t of Children & Fams., 915 So. 2d 210 (Fla. 1st DCA 2005) ............................................................. 38 Seaboard Coast Line Railroad v. Burdi, 427 So. 2d 1048 (Fla. 3d DCA 1983) ............................................................ 29 State v. Morris, 359 So. 2d 478 (Fla. 4th DCA 1978) ............................................................. 19

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State Farm Fire & Cas. Co. v. Levine, 875 So. 2d 663 (Fla. 3d DCA 2004) .................................................. 29, 30, 33 State Farm Mut. Auto. Ins. Co. v. Miller, 688 So. 2d 935 (Fla. 4th DCA 1997) ............................................................. 20 Tran v. Smith, 823 So. 2d 210 (Fla. 5th DCA 2002) ....................................................... 34, 35 Tricam Industries, Inc. v. Coba, ___ So. 3d ___, 2012 WL 3733642 (Fla. 3d DCA August 29, 2012) ........... 36 Wald v. Grainger, 64 So. 3d 1201 (Fla. 2011) ...................................................................... 39, 40 Waste Mgmt., Inc. v. Mora, 711 So. 2d 568 (Fla. 2006) ............................................................................ 18 Waxman v. Truman, 792 So. 2d 657 (Fla. 4th DCA 2001) ....................................................... 28, 29

STATUTES AND RULES

§ 768.74, Fla. Stat. (2011) .............................................................................. 4, 25, 26 Fla. R. App. P. 9.210 .......................................................................................... 30, 41 Fla. R. Civ. P. 1.431 ................................................................................................... 6 Fla. R. Civ. P. 1.530 .................................................................. 16, 17, 19, 20, 21, 22 Fla. R. Civ. P. 1.540. ................................................................................................ 17

OTHER AUTHORITIES

Fla. Std. Jury Intr. (Civ.) 501.7. ............................................................................... 29 James H. Wyman, Reconsideration or Rehearing: Is There A Difference?, 83 Fla. B.J. 79 (June 2009) ..................................................................... 21, 22

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STATEMENT OF CASE AND FACTS This case arises from a final judgment in favor of Appellee, Ethel Cousin

(“Plaintiff”) in a suit where she sought to collect monies from an uninsured

motorist policy of insurance which she had in effect with Appellant, GEICO

General Insurance Company (“Defendant”).

In this statement, we first set forth the factual and procedural background

necessary for determining whether the trial court had jurisdiction to vacate its prior

order granting a new trial in favor of Defendant and grant Plaintiff’s motion for

rehearing. Infra Part A, at 1-3. Then, we set forth the evidence and argument

presented to the jury regarding the award of past and future medical expenses and

the award of damages. Infra Part B, at 3-5. Next, we discuss the evidence and

post-trial argument related to one juror’s supposed non-disclosure of litigation

history. Infra Part C, at 5-9. Finally, we explain the factual basis for the trial

court’s decision to grant the motion for directed verdict on the element of

causation. Infra Part D, at 10-12.

A. The facts material to trial court’s jurisdiction to grant rehearing and vacate its granting a new trial. The motion for rehearing was directed at the final judgment. Appellant

misstates the procedural posture, critical to determining this issue, by representing

that the trial court entered the final judgment on January 5, 2012 (Initial Br. 5) and

granted the motion for new trial on January 6, 2012 (Initial Br. 5). The final

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judgment was filed by the clerk and rendered on January 9, 2012 (R. 1894), three

days after the rendition of the order granting the motion for new trial in part (R.

1842). The critical dates were as follows:

• October 17, 2011- Jury announced verdict finding Defendant’s

negligence was the legal cause of Plaintiff’s damages. (R. 1785; T.

1329-30.)

• October 24, 2011- Defendant filed motion for new trial. (R. 1791.)

• December 30, 2012- Order granting Defendant’s motion for new trial

in part (“new trial order”) was signed by the trial court. (R. 1843.)

• January 5, 2012- Final judgment for Plaintiff was signed by the trial

court. (R. 1845.)

• January 6, 2012- Order granting Defendant’s motion for new trial in

part was filed by the clerk, and therefore rendered. (R. 1842.)

• January 9, 2012- Final judgment for Plaintiff was filed by the clerk,

and therefore rendered. (R. 1844.)

• January 12, 2012- Plaintiff’s motion for rehearing of the final

judgment or for alteration/amendment or reconsideration of the final

judgment was filed. (R. 1849.) In her motion for rehearing, Plaintiff

asked that her motion be construed as a motion for reconsideration if

the “final” judgment were deemed to be not final. (R. 1859 n.3.)

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• January 26, 2012- Order granting Plaintiff’s motion for rehearing

(“rehearing order”) was signed and filed by the clerk. The rehearing

order vacated and set aside the new trial order and denied GEICO’s

motion for new trial. (R. 1963.)

• February 21, 2012- GEICO filed notice of appeal. (R. 1978.)

• February 24, 2012- This Court issued a show cause order as to why

the appeal should not be dismissed as untimely. (Order 2/24/2012.)

• February 28, 2012- Defendant filed response to show cause order

claiming the motion for rehearing of the final judgment tolled

rendition. (Def.’s Resp. 2 (2/28/12).)

B. The evidence and argument presented to the jury regarding the award of past and future medical expenses. In her closing argument, Plaintiff first requested that the jury return an award

of “about $760,000 through $830,000” for future medical expenses and then stated

the future economic damages would be between “750- and 850-.” (T. 1265.) The

jury returned a verdict for less than the high end of Plaintiff’s request by awarding

$750,000 for future medical treatment. (R. 1787.)

The jury was instructed on reduction of future medical expenses to present

money value:

Any amounts of damages which you allow for future medical expenses should be reduced to its present money value, and only the

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present money value of these future economic damages should be included in your verdict.

The present money value of future economic damages is the sum of money needed now which will compensate Ethel Cousin for these losses as they are actually experienced in future years.

(T. 1313-14.)

Defendant never argued about the present value of Plaintiff’s future medical

expenses during its closing argument. (T. 1274-97.) Once the jury returned the

verdict, Defendant never objected to it on the ground that it failed to reduce future

medical expenses to present value. (T. 1329-34.)

Defendant never requested remittitur in the trial court. It did not do so: (i) in

any of its three written motions for new trial (R. 1793, 1797, 1803); (ii) at the

hearing on the motion for new trial (R. 1893-1950); (iii) in its memorandum

supporting its motion for new trial (R. 1817);1 or (iv) in its motion to strike

Plaintiff’s motion for rehearing (R. 1960-62). Each motion prayed only for a new

trial (R. 1793, 1797) and in one case, for a juror interview (R. 1803).

As support for the range Plaintiff requested for future medical expenses, a

life care planner and rehabilitation counselor testified as to the estimated present

cost for future medical care for the Plaintiff. (T. 847-48.) Plaintiff’s life

expectancy from the date of the trial was 31.6 years. (T. 852.) He testified as to

1 The memorandum supporting Defendant’s motion for new trial did discuss section 768.74; however, neither the motion nor the memorandum sought remittitur in the conclusion or prayer for relief. (R. 1814-15, 1817, 1793, 1797.)

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the average annual cost for pain management office visits (T. 854 ($1,080-1,560

annually)), lab testing (T. 855 ($1,750 annually)), medication (T. 856 ($9,405

annually)), and the spinal cord stimulator and replacement procedures (T. 857-60

($6,250 to $15,000 annually)).2 One of Plaintiff’s treating physicians, Dr. Huber

Matos, testified about her future medical needs and conferred with the expert who

came up with the projected costs for those expenses. (T. 797-98.)

C. Facts relating to Defendant’s motion for new trial based on Juror Roberts’ alleged non-disclosure of litigation history. 1. Juror Roberts’ alleged non-disclosure of litigation history.

At the beginning of voir dire, the potential jurors were told by the trial court

that this was a civil personal injury case. (T. 31.) Each potential juror was asked

to state their response to the prospective juror information sheet which asked if the

juror had been involved as a party or a witness in a law suit. (T. 31-33.) The term

“lawsuit” was not defined by the trial court or the questionnaire. When Juror

Quinell Roberts responded to the question asked on the sheet he said, “I have –

have not been involved in [sic] a party or witnesses [sic] in a lawsuit.” (T. 37.)

When defense counsel had the opportunity to follow up with Juror Roberts

during voir dire, he did not ask Juror Roberts whether he may have been sued in

2 The life care planner did not discuss any future medical expenses as a result of the percutaneous discectomy surgery during direct or cross-examination. (T. 847-65.) Therefore, Defendant’s reference to the percutaneous discectomy surgery in the Initial Brief (Initial Br. At 7) is not relevant to the issues raised in this appeal.

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the past or seek to clarify his ambiguous response to the jury questionnaire. (R.

1839-40.) He failed to do this even though Plaintiff’s counsel informed defense

counsel that Juror Roberts may have had a history of litigation.3 (R. 1839-40.)

Defendant’s supplemental motion for new trial alleged that Juror Roberts

allegedly failed to disclose prior litigation history – specifically, five civil matters.4

(R. 1795-97.) Defendant failed to establish that Juror Roberts was, in fact, the

same “Quinell Roberts” involved in the prior litigation. The supplemental motion

merely provided a “brief overview of Mr. Roberts’ civil and criminal history”

without attaching any documents or affidavits in support of those assertions. (R.

1794-98.)

Defendant did request an interview of Juror Roberts. (R. 1802-03.)

However, its request was forty-nine days after the verdict. (R. 1785, 1802-03.)

This request was untimely. See Fla. R. Civ. P. 1.431(h) (requiring request for juror

interview to be made within ten days of the verdict). Plaintiff argued below that

Defendant failed to establish “good cause” that would have excused its untimely

request. (R. 1834-36); see also Hannon v. Shands Teaching Hosp. & Clinics, Inc.,

56 So. 3d 879, 879 (Fla. 1st DCA 2011) (quashing order granting juror interviews,

3 Defense counsel denied that he was ever told by Plaintiff’s counsel about Juror Roberts’ litigation history. (R. 1915-17.) 4 The supplemental motion also listed criminal charges, all of which were between 1994 and 2004. (R. 1796-97.) Defendant, however, conceded at the hearing on the motion that the alleged non-disclosures did not involve the criminal charges. (R. 1934-35.) Defendant’s answer brief also does not rely on the criminal charges.

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which the trial court granted without finding good cause for the untimely motion,

filed 18 days after the verdict). The trial court never granted Defendant’s request

to interview Juror Roberts. (R. 1842-43.) Defendant has not challenged that

decision on appeal. (See generally Initial Br.)

Therefore, the information provided by Defendant concerning Juror Roberts’

alleged litigation history is limited. Juror Roberts appeared to have been a

defendant in collection actions, actions for eviction or past-due rent, or foreclosure

proceedings. (R. 1795-97.) In contrast, the instant case concerned Plaintiff’s

personal injuries sustained in an automobile crash. (R. 1-3.) With one exception

(a notice of lis pendens filed in 2010), the civil matters involving Juror Roberts

were at least seven years old at the time of trial, as they occurred between 1995 and

2004. (R. 1795-97.)

2. Other prospective jurors were confused by the question’s ambiguity. Several members of the venire, despite being given the questionnaire,

initially failed to disclose relevant litigation history. For example, one potential

juror introduced himself by stating that he had “not been involved as a party or a

witness in a lawsuit.” (T. 41.) Yet, after Plaintiff’s counsel questioned the

potential juror about a back injury, he revealed that he had been involved in a

“little lawsuit” for injuries arising out of a car accident. (T. 166-68.) Two other

prospective jurors failed to disclose any litigation history when asked by the trial

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judge. (T. 36, 37-38.) They disclosed their involvement in legal proceedings only

after additional questioning by Plaintiff’s counsel. (T. 188-89.)

3. With one exception, Defendant failed to challenge the other prospective jurors who disclosed past litigation experience.

Defendant did not strike or attempt to strike the other prospective jurors with

litigation histories which were similar to Juror Roberts. For example, Defendant

did not move to strike as a juror: (i) a defendant in a lawsuit arising from an

automobile accident (Mr. Synder) (T. 35); (ii) a person who disclosed that she had

been involved in a collections matter (Ms. Legrand) (T. 188-89); (iii) a fact witness

in a pending civil lawsuit, brought by a homeowner against an insurance company

(Mr. Bowen) (T. 45-46); (iv) a defendant in a lawsuit brought for breach of an oral

employment agreement (Mr. McKenzie) (T. 50-51); and (v) a person involved in

“law proceedings” related to an undisclosed matter, in which lawyers were

involved (Mr. Smith) (T. 189).

With one exception, Defendant did not strike the potential jurors involved in

prior litigation similar to the Plaintiff’s claim in this case, including: (1) a claimant

in a worker’s compensation lawsuit (Mr. Dougherty) (T. 38-39); (2) a member of a

class in a class action lawsuit and a claimant for property damage against his

insurer (Mr. Miles) (T. 42, 220-21); and (3) a juror with a cousin suffering from

cerebral palsy as a result of birth injuries and on whose behalf a medical

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malpractice lawsuit had been brought (Ms. White) (T. 173-74).5 Defense counsel

did exercise a peremptory challenge to strike a prospective juror (Mr. Eadeh) (T.

250) who disclosed at voir dire that he had suffered back injuries in an automobile

accident, which resulted in a “little lawsuit” and his recovery of lost wages and

past medical expenses. (T. 166-68.)

Unlike Defendant, Plaintiff did challenge several of the jurors with a history

of litigation. Plaintiff successfully challenged three of these jurors for cause (T.

246 (Mr. Smith), 248(Mr. Bowen & Mr. McKenzie)), and she exercised a

peremptory challenge to strike another one of these jurors. (T. 251(Mr. Snyder).)

In contrast, Defendant agreed to two prospective jurors who had disclosed a

personal history of litigation (Mr. Dougherty and Ms. Legrand) and to a third

prospective juror (Ms. White) whose cousin had a medical negligence lawsuit. (T.

251.) Although Defendant briefly questioned one of these jurors (Mr. Dougherty)

about his worker’s compensation claim (T. 219-20),6 Defendant ultimately

consented to the inclusion of all three jurors (Mr. Dougherty, Ms. Legrand, and

Ms. White); the three were sworn and served on the panel that decided this case.

(T. 251.)

5 In its memorandum of law in support of Defendant’s motion for new trial, GEICO listed two additional jurors who disclosed past litigation: (1) Ms. Natalie Smith, who had been named a defendant in a lawsuit (T. 39-40); (2) Mr. Jordan, a plaintiff in a prior lawsuit (T. 43-44). The Court excused both Ms. Smith and Mr. Jordan based upon substantial hardship. (T. 79.) 6 Defendant did not similarly question the other two jurors (Ms. Legrand and Ms. White) about their litigation experiences. (See T. 214-41.)

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D. The factual basis for the trial court’s decision to grant the motion for directed verdict as to causation.

Plaintiff moved for a directed verdict on causation arguing that every expert

for both Defendant and Plaintiff testified that she suffered an injury as a result the

crash. (T. 1214-16.) Though the doctors disagreed about the extent of Plaintiff’s

injuries, it was undisputed, Plaintiff argued, that she had certain expenses caused

by the car accident including: the ambulance, emergency room costs, and

diagnostic tests. (T. 1216.) In response, defense counsel conceded that the defense

experts testified that the accident caused Plaintiff’s temporary injury: “So it is true

that Dr. Scuderi and Dr. Hofmann, both of them, testified that they thought there

was a temporary exacerbation or – as a result of the motor vehicle accident.” (T.

1216-17.) 7

Defense counsel went on to stipulate that there was some amount of medical

care as a result of a temporary exacerbation of Plaintiff’s medical issues:

Certainly I think that the plaintiff is free to argue on closing argument that because Drs. Scuderi and Hofmann say there was at least a temporary exacerbation for two or three months, thereafter that there’s some amount of medical care and treatment that they believe would be stipulated to or at a minimum a jury should award, but that wasn't quantified by either party to what—I’m sorry, wasn’t quantified by either Dr. Scuderi or Dr. Hofmann to what extent, if any, they found anything reasonable and necessary after.

7 In fact, Drs. Scuderi and Hofmann both testified that Plaintiff had temporary injuries as a result of the accident. (T. 1095, 1180-81, 1209.)

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(T. 1217-18.) In response to questioning from the trial court, defense counsel

conceded that both defense experts testified that there was medical treatment for

Plaintiff which was caused by her temporary injuries as a result of the accident:

THE COURT: Well, is it the defense’s position that -- that any medical expenses incurred up to September 12, 2009, were not caused by the accident in light of all the medical testimony, even the defense testimony that -- that -- one, that from the defense standpoint, well, yes, there were medical expenses incurred up to September 12th, 2009, but they were just sort of temporary exacerbation of a previous injury? Is there are you taking the position that it’s not caused? [DEFENSE COUNSEL]: Oh, whether it was a legal cause of loss, injury, or damage is the question that would be phrased under the verdict form, and so did both of them testify that they believed that she was injured temporarily, she had a cervical strain and a lumbar strain, yes, they both said she had a cervical strain and a lumbar strain. And so to an extent, there was some medical care and treatment, neither whom quantified that, that probably would have been attendant with that. THE COURT: Yeah, they didn’t quantify it, but the -- the plaintiff’s experts did, and in that respect, they’re not inconsistent. And we have the bills, so there’s no issue that whatever the bills are up until September 12, 2009, they are caused by the accident and they are recoverable. There’s no inconsistent testimony on that point. The issue that you’re addressing is is that whether that’s all the plaintiff is entitled to. [DEFENSE COUNSEL]: Agreed.

(T. 1218-19.)

Defense counsel confirmed to the trial court that he contested permanency,

not causation:

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[DEFENSE COUNSEL]: Certainly. And, in fact, that's part of the closing argument that I expect that I’ll be making, is that there is a certain finite amount of medical expenses that are awardable by a jury. THE COURT: Okay. But they’re just not permanent? [DEFENSE COUNSEL]: Correct. THE COURT: Well, then, the Court would grant but I'm going to let me tell you, I don't think it’s going to affect if there’s no disagreement, and you've announced there’s not, and indeed in light of the evidence that -- in the evidence there isn’t any, I don’t think it’s going to affect the verdict form.

(T. 1220.) During closing argument, defense counsel conceded that Plaintiff had

damages caused by the accident:

The specific records, and if you were to take the time to add them up for -- for 90 days after this accident, add up to $19,233.76, 19,000 and change. And I’m going to submit to you that that’s the amount that you should award to the plaintiff, is $19,233.76, because those were her injuries and damages that she received from this motor vehicle accident.

(T. 1280-81.) After the jury was instructed and retired to the jury room, the trial court sent

a note to them without objection from defense counsel that said “the Court ruled

the evidence has proven that the accident was a legal cause of an aggravation to

Ethel Cousin’s prior condition, and that the defendant, GEICO, is responsible for

medical expenses reasonably incurred up to September 18, 2009.” (T. 1326-27.)

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SUMMARY OF ARGUMENT

I. The trial court had jurisdiction to vacate the new trial order. The

trial court entered its new trial order before it entered the final judgment. This

sequence is critical. It distinguishes this case from the cases cited by Defendant.

The same sequence existed in Gordon v. Richter, 528 So. 2d 374 (Fla. 3d DCA

1987). There, the court concluded that, where, as here, the order on a new trial

precedes the final judgment, the trial court may vacate its prior order on a new trial

when ruling on a timely, authorized motion for rehearing directed at the final

judgment.

Even if the final judgment was considered non-final, trial courts have

jurisdiction to reconsider any prior orders when a final judgment has not yet been

entered. This is a well-settled principle. This Court should reject the non-binding

cases cited by Defendant that ignore this settled principle. Prohibiting

reconsideration of an erroneous non-final ruling does not promote finality. Instead,

such a prohibition serves only to force trial courts to proceed down an erroneous

path and waste the parties’ and the court’s resources.

Alternatively, if this Court determines that the Defendant is correct and the

motion for rehearing was not authorized, this appeal must be dismissed as untimely

because unauthorized motions for rehearing do not delay rendition of a final order.

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II. The trial court did not abuse its discretion in denying a new trial

based on the jury’s purported failure to reduce the future medical expenses to

present value. Defendant’s appellate argument was not preserved for appeal.

Defendant may not argue that the trial court abused its discretion in failing to grant

remittitur where it never asked for such relief at the hearing on the motion for new

trial. Defendant waived any objection to the jury’s present value finding by failing

to make a contemporaneous objection at the time the jury returned its verdict.

Defendant never objected to the verdict form or requested that the verdict form

require the jury to make separate findings for future damages and their present

value. Additionally, Defendant did not offer any evidence on present value and

cannot now complain about the jury’s finding simply because it was near the

general range requested by Plaintiff’s counsel.

The trial court acted within its broad discretion in denying the motion for

new trial. Indeed, if the trial court had granted a new trial, it would have erred as a

matter of law. The record does not reflect that the jury failed to reduce the value of

the award for medical expenses in the future to present value. Even if the jury had

found that the present value was equal to the amount of future economic damages,

it would not prove that the jury failed to follow the trial court’s instructions. Nor

was Plaintiff required to offer any expert testimony on the present value of the

future medical expenses.

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III. The trial court did not abuse its discretion in denying a new trial

as a result of a juror’s alleged non-disclosure of prior litigation history.

Defendant failed to present competent evidence that Juror Roberts was, in fact, the

same “Quinell Roberts” involved in the prior litigation. Even if Defendant did

present competent evidence of Juror Roberts’ prior litigation, the trial court did not

abuse its discretion in concluding that Defendant failed to establish each prong of

the three-part test stated in De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995).

First, the information allegedly concealed by Juror Roberts was not material to jury

service in this case; second, Juror Roberts did not conceal the information; and

third, any failure by Juror Roberts to disclose the information is attributable to

defense counsel’s lack of diligence.

IV. The trial court did not err in granting the Plaintiff’s motion for

directed verdict on causation. Defendant waived any objection to this decision

by the trial court when it repeatedly agreed that there was no conflict in the

evidence regarding causation. Even if the issue is addressed on the merits, the trial

court did not err in granting the directed verdict on causation where no view of the

evidence could sustain a verdict in favor of the Defendant on the issue of

causation. Expert witnesses for both Defendant and Plaintiff agreed that she had at

least a temporary injury and associated medical expenses as a result of the car

accident. Defense counsel conceded this point and even told the jury in closing

16

argument that an award of nearly $20,000 for Plaintiff’s medical expenses was

reasonable. Defendant should not be permitted to confuse the issues of

permanency and causation in this appeal, where the trial court was specifically told

that there was no conflict in the evidence on the element of causation.

ARGUMENT I. THE TRIAL COURT HAD JURISDICTION TO SET ASIDE THE

NEW TRIAL ORDER.

Standard of Review. The determination of a trial court’s jurisdiction is a

question of law with a de novo standard of review. Rogers v. State, 33 So. 3d 805,

806 (Fla. 1st DCA 2010).

Merits. The lynchpin of Defendant’s jurisdictional argument is that

Plaintiff’s motion for rehearing was not authorized. (Initial Br. 14 (“Rule 1.530

does not authorize the filing of a motion for rehearing or a supplemental motion

pertaining to an order deciding a motion for new trial.”).) There are three flaws

with this argument. First, it misapprehends the posture of Plaintiff’s motion for

rehearing; that motion was authorized because it was directed at a final judgment

that followed the new trial order. Infra Argument I.A., at 17-20. Second, if the

final judgment in this case were deemed not final, then the trial court had the

authority to reconsider its new trial order just as it may reconsider any order when

a final judgment has not yet been entered. Infra Argument I.B., at 21-23. Third, if

17

Plaintiff’s motion was unauthorized as Defendant argues, then Defendant’s appeal

must be dismissed as untimely. Infra Argument I.C., at 23-25.

Before addressing these flaws, one of Defendant’s arguments – the motion

for rehearing was not authorized under Fla. R. Civ. P. 1.540 (Initial Br. 15-17) – is

a red herring. Plaintiff never has contended that her motion for rehearing was

authorized under Rule 1.540.

A. The trial court had jurisdiction to set aside the new trial order because of its authority to rule on a timely, authorized Rule 1.530 motion for rehearing directed at the final judgment.

Jurisdiction resided in the trial court to rule on Plaintiff’s timely, authorized

motion for rehearing or to alter or amend judgment. See Fla. R. Civ. P. 1.530(b) &

(g). The trial court entered its new trial order before it entered the final judgment,

and it entered its order setting aside the new trial order when ruling on a timely,

authorized Rule 1.530 motion directed at the final judgment. (R. 1843, 1844,

1963.) This sequence is critical. It distinguishes the instant case from the cases

cited by Defendant, see infra at notes 8-9.

The same sequence existed in Gordon v. Richter, 528 So. 2d 374 (Fla. 3d

DCA 1987). There, the trial court first entered its order denying the motions for

new trial and later entered a final judgment. Id. at 375. After the entry of the final

judgment, one party (the “moving party”) moved for rehearing, arguing that the

trial court had erred on the new trial issue. Id. On appeal, the opposing party

18

argued that “an order granting or denying a new trial is not subject to a motion for

rehearing absent fraud or clerical error.” Id. at 376. The appellate court agreed

with the opposing party’s statement of the law. Id. (citing Frazier v. Seaboard Sys.

R.R., Inc., 508 So. 2d 345 (Fla. 1987) (cited at Initial Br. 11)). However, the

appellate court ruled that the opposing party misapprehended the moving party’s

posture. Id. Once the new trial motion was ruled on and a final judgment was

entered, the moving party was permitted to file a motion for rehearing directed at

the final judgment and, in doing so, the moving party could challenge the trial

court’s new trial decision that preceded the entry of the final judgment. See id.

Defendant cites several cases for the proposition that a motion for rehearing

directed at a new trial order is not authorized. However, those cases do not apply.

The first category of cases cited by Defendant concern the scenario where the new

trial order was entered after the final judgment and where the motion for

“rehearing” (either by a party or the court on its own motion) was directed at the

new trial order or some other post-judgment order, not at the final judgment.8 A

8 See Frazier, 508 So. 2d at 346-48 (cited at Initial Br. 11) (after entry of a final judgment, the trial court granted a motion for new trial, and then the party opposing the new trial filed a motion for “rehearing” directed at the post-judgment new trial order); Huffman v. Little, 341 So. 2d 268, 268 (Fla. 2d DCA 1977) (cited at Initial Br. 11) (discussed in text); Beyer v. Leonard, 711 So. 2d 568, 570 (Fla. 2d DCA 1997) disapproved on other grounds by Waste Mgmt., Inc. v. Mora, 711 So. 2d 568 (Fla. 2006) (cited at Initial Br. 12) (after entry of a final judgment, the trial court denied a motion for new trial and granted in part and denied in part an additur motion, and the party seeking additional additur filed a motion for rehearing directed at the post-judgment additur order, not the final judgment);

19

“rehearing” motion directed at a post-judgment new trial order or some other post-

judgment order (rather than the final judgment itself) is not authorized by Rule

1.530 or any other rule. But, unlike this first category of cases cited by Defendant,

the instant case involves a motion for rehearing (or alternatively to amend

judgment) directed at the final judgment itself, not at any post-judgment order.

This type of motion is authorized under Rule 1.530(b)&(g).

For example, in one case cited by Defendant, the final judgment was entered

first, then the trial court entered a new trial order, and finally, over three weeks

after it entered the new trial order, the trial court on its own motion set aside the

new trial order. Huffman, 341 So. 2d at 269. The appellate court ruled that the

trial court was without jurisdiction to set aside its prior new trial order. Id. But,

critically, the appellate court expressly left open the possibility that a timely,

authorized Rule 1.530 motion would have permitted the trial court to re-consider

its prior new trial order when ruling on the Rule 1.530 motion. See id. (noting that

it was “unnecessary to reach the question whether [Rule 1.530(d)] grants the judge

a limited time period in which he may reconsider an order granting a new trial”).

Abram v. Wolicki, 864 So. 2d 18, 19-21 (Fla. 4th DCA 2003) (cited at Initial Br. 13) (after the entry of a judgment, the trial court denied a motion for new trial, and then the losing party filed a motion for “rehearing” directed at the post-judgment order denying the new trial); State v. Morris, 359 So. 2d 478, 479-80 (Fla. 4th DCA 1978) (cited at Initial Br. 14) (after a conviction, the trial court denied a motion for new trial, and then nine months after the conviction the defendant filed a petition for rehearing, which the trial court granted by ordering a new trial).

20

Other cases in this first category cited by Defendant are also distinguishable on the

same or similar grounds. See supra note 8.

The second category of cases cited by Defendant is also distinguishable.

They address a situation where, unlike here, no final judgment has been entered.9

In the absence of a final judgment, a motion for rehearing (or to alter or amend

judgment) is not authorized under Rule 1.530. See Caufield v. Cantele, 837 So. 2d

371, 376 n.3 (Fla. 2002) (noting that motions for rehearing are authorized only for

final orders).

In summary, the trial court had jurisdiction to reconsider its new trial order,

entered before the final judgment, when ruling on Plaintiff’s timely, authorized

Rule 1.530 motion for rehearing (or to alter or amend judgment) directed at the

final judgment.

9 See Collins v. Douglass, 874 So. 2d 629, 630-31 (Fla. 4th DCA 2004) (cited at Initial Br. 13) (holding trial court lacked the authority to rehear its decision to deny a motion for new trial where no final judgment had been entered); State Farm Mut. Auto. Ins. Co. v. Miller, 688 So. 2d 935, 935-37 (Fla. 4th DCA 1997) (cited at Initial Br. 12) (holding that motion for rehearing from an order denying new trial was unauthorized where there was no indication that a final judgment was entered); ACA Brandon, Inc. v. Hooyman, 823 So. 2d 874, 874 (Fla. 2d DCA 2002) (cited at Initial Br. 13-15) (reversing order granting new trial after the trial court initially denied motion for new trial because the rules do not authorize rehearing of orders denying a new trial and remanding for the entry of a final judgment); Polk County v. Sofka, 730 So. 2d 389, 393 (Fla. 2d DCA 1999) (holding that, where stipulated final judgment had been vacated on prior appeal and thus no valid final judgment existed, the trial judge was without jurisdiction to vacate a new trial order entered five years beforehand by a predecessor judge).

21

B. Even if the “final” judgment were deemed to be not final, the trial court had jurisdiction to reconsider its new trial order.

A long line of precedent permits a trial court to reconsider any order when a

final judgment has not yet been entered. See James H. Wyman, Reconsideration

or Rehearing: Is There A Difference? 83 Fla. B.J. 79, 79-80 & nn.8-18 (June

2009); see also, e.g., Glary v. Israel, 53 So. 3d 1095, 1099 n.9 (Fla. 1st DCA

2011). When no final judgment has yet been entered, the procedural mechanism

for requesting a change to a non-final order is a motion for reconsideration, not a

Rule 1.530 motion for “rehearing.” See Francisco v. Victoria Marine Shipping,

Inc., 486 So. 2d 1386, 1388 n.2 (Fla. 3d DCA 1986); Wyman, supra, 83 Fla. B.J. at

79 & n.6. Accordingly, in the abundance of caution, Plaintiff in her motion for

rehearing asked that her motion be construed as a motion for reconsideration if the

“final” judgment were deemed to be not final. (R. 1859 n.3.)

The second category of cases cited by Defendant, see supra note 9, appears

to reject the well-settled principle that, when no final judgment has yet been

entered, a trial court may reconsider its prior orders. This Court should not follow

these cases. These cases are not binding on this Court, as none of them are from

this Court or the supreme court. See supra note 9; Pardo v. State, 596 So. 2d 665,

666 (Fla. 1992) (holding district courts are required to follow supreme court

decisions, but a sister district court’s opinion is merely persuasive). These cases do

22

nothing to promote finality (as no final judgment has been entered) and instead

force trial courts operate under an erroneous ruling.

The Fourth District’s Miller decision is the seminal case in the second

category of cases cited by Defendant, and it demonstrates why the judicial policy

embodied by these cases is unsound. 688 So. 2d at 935. Miller rejected the

argument that, absent a final judgment, an order ruling on a new trial motion could

be re-considered by a trial court like any other order preceding a final judgment.

Id. at 936-37.

Miller’s rationale was dubious. See id. at 936-37. Specifically, the Miller

court reasoned that the well settled principle that a court may reconsider its prior

non-final orders “ha[d] not been applied, so far as our research indicates, to

authorize a motion for rehearing from an order denying a [R]ule 1.530 motion for

new trial.” Id. But the conclusion that a motion for rehearing was not authorized

when no final judgment has been entered is of no consequence. It does not mean

that a trial court lacks jurisdiction to re-consider a non-final order. Motions for

rehearing are not authorized for many types of non-final orders, but that does not

mean the trial court loses jurisdiction to re-consider such orders. It means simply

that they cannot be re-considered under the authority of Rule 1.530, and thus the

benefits of Rule 1.530 (like delay of rendition of an appealable order) do not apply.

See Wyman, supra, 83 Fla. B.J. at 80 nn.19-30; Monte Campbell Crane Co., Inc. v.

23

Hancock, 510 So. 2d 1104, 1105 (Fla. 4th DCA 1987) (“Trial courts hear

‘unauthorized’ motions all the time and have the discretion to do so; and the only

importance of whether a motion is authorized or not is that an unauthorized motion

does not toll the time for appealing a prior nonfinal order.”).

This case exemplifies why trial courts should have the power to re-consider

(before final judgment) or rehear (after final judgment) any prior order. As argued

below, the trial court erred as a matter of law when it initially granted a new trial.

Infra Argument II, at 25-29. This error was patently obvious once it was brought

to the trial judge’s attention by way of Plaintiff’s motion for rehearing. The rule of

law argued by Defendant, if adopted by this Court, would have required the trial

court, absent an appeal, to conduct a new trial even when it became apparent that

holding a new trial was patently erroneous. Such a rule of law would be a waste of

resources and unsound, and more importantly, such a rule of law is not required by

the rules of procedure or case law.

C. If Defendant’s argument is correct, this appeal must be dismissed as being untimely.

If it is correct, Defendant’s first argument on appeal – Plaintiff’s motion was

rehearing was not authorized (Initial Br. 14) – means that Defendant’s appeal must

be dismissed as untimely.

For an appellate court to have jurisdiction of a final order in a civil case, a

party must file a notice of appeal within thirty days of the final order being

24

rendered. See Fla. R. App. P. 9.110(b). For an order to be “rendered,” is must be:

(i) written, (ii) signed, and (iii) filed with the clerk of the lower tribunal. Fla. R.

App. P. 9.020(h). However, if there has been an authorized, timely motion for

rehearing, the final order shall not be deemed rendered until the filing of a signed,

written order disposing of the motion. Fla. R. App. P. 9.020(h)(1). Unauthorized

motions for rehearing will not delay rendition of the final order. See, e.g., Caufield

v. Cantele, 837 So. 2d 371, 376 at n.3 (Fla. 2002).

The final judgment was written, signed, and filed with the clerk of the lower

tribunal on January 9, 2012. (R. 1844-45.) Thus, if there was no authorized

motion for rehearing (as Defendant now contends), the final judgment was

“rendered” on January 9, 2012, and Defendant was required to file its notice of

appeal no later than February 8, 2012. Defendant, however, filed its notice of

appeal on February 21, 2012. (R. 1978.) Accordingly, if Plaintiff’s motion for

rehearing was unauthorized (as Defendant argues), then this appeal must be

dismissed as untimely.

Indeed, when this Court directed Defendant to show cause why the appeal

should not be dismissed as untimely, Defendant argued that the filing of Plaintiff’s

motion for rehearing tolled rendition of the final judgment. (Def.’s Resp. 2

(2/28/12).) But rendition was tolled only if the motion for rehearing was

authorized. See Fla. R. App. P. 9.020(h)(1); Caufield, 837 So. 2d at 376 at n.3.

25

Therefore, Defendant’s argument in response to this Court’s show cause order

cannot be reconciled with its argument in its initial brief.

Defendant cannot have it both ways. The motion for rehearing cannot be

authorized for purposes of this Court’s jurisdiction, and at the same time,

unauthorized for purposes of the trial court’s jurisdiction. It was either authorized

or unauthorized. Either way, the result is the same: the trial court’s final judgment

cannot be reversed.

II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION FOR NEW TRIAL BASED ON THE JURY’S PURPORTED FAILURE TO REDUCE TO PRESENT VALUE THE FUTURE MEDICAL EXPENSES.

Standard of Review. A trial court’s ruling on a motion for new trial is

reviewed for an abuse of discretion. See Fieldbinder v. Hill, 356 So. 2d 1292,

1292 (Fla. 1st DCA 1978).

Preservation. Defendant’s second argument on appeal – a new trial was

warranted purportedly because the jury failed to reduce to present value the future

medical expenses – was not preserved for appeal for four reasons:

(1) Defendant cannot argue for the first time on appeal that the trial court

should have granted remittitur or a new trial under section 768.74, Florida Statutes

(2011). (Initial Br. 18.) See Hentze v. Denys, 88 So. 3d 307, 310 (Fla. 1st DCA

2012) (noting the well-settled rule that, for an argument to be cognizable on

appeal, the same argument must have been specifically made to the trial court).

26

The majority of Defendant’s second argument on appeal is based on the remittitur

statute, section 768.74. (Initial Br. 17-20.) But Defendant never requested

remittitur under section 768.74 in the trial court. It did not do so: (i) in any of its

three written motions for new trial (R. 1793, 1797, 1803); (ii) at the hearing on the

motion for new trial (R. 1893-1950); (iii) in its memorandum supporting its motion

for new trial (R. 1814-15); or (iv) in its motion to strike Plaintiff’s motion for

rehearing (R. 1960-62). Section 768.74, Florida Statutes does not require the trial

court to consider remittitur sua sponte; instead, it requires the trial court to

consider remittitur only “upon proper motion.” § 768.74(1), Fla. Stat. (2011).

Because Defendant never made a proper motion for remittitur, its remittitur

argument was not preserved.

(2) Defendant waived any objection to the jury’s present value finding by

failing to make a contemporaneous objection at the time the jury returned its

verdict. See Burgess v. Mid-Florida Serv., 609 So. 2d 637 (Fla. 4th DCA 1992)

(holding the jury’s failure to reduce future damages to present value did not require

new trial because defendant failed to object before the jury’s discharge); see also

Budget Rent-A-Car Sys., Inc. v. Santonino, 766 So. 2d 1156, 1156 (Fla. 5th DCA

2000) (relying on Burgess).

(3) Defendant never objected to the verdict form or requested that the

verdict form require the jury to make separate findings for future damages and

27

their present value. See, e.g., Hurley v. Gov’t Employees Ins. Co., 619 So. 2d 477,

480 (Fla. 2d DCA 1993) (a contemporaneous objection to the verdict form is

required in order to be preserved); cf. Budget Rent-A-Car Sys., Inc., 766 So. 2d at

1156 (using verdict form where jury made separate findings for future damages

and their present value). Accordingly, the trial court could not determine whether

the jury’s findings on future medical expenses and present value were the same or

different. It would have been an abuse of discretion for the trial court to assume

that the jury determined that the future medical expenses were $750,000 and that

the jury failed to reduce that amount. It is entirely possible, based on the

unobjected-to verdict form, that the jury found that the amount of future medical

expenses were at the high end of Plaintiff’s requested range (for example,

$830,000, or $850,000 based on Defendant’s reading of the record), and that the

jury’s $750,000 award was a reduction to present value.

(4) Because Defendant did not offer any evidence, or make any argument

to the jury, on present value, it cannot now complain about the jury’s finding on

present value simply because it was near the general range argued by Plaintiff’s

counsel. See Andrews v. Gulfstream Ventures, Inc., 411 So. 2d 1336, 1338-39

(Fla. 4th DCA 1982) (holding that, because defendant at trial presented no

evidence or argument on present value, it could not after the trial complain about

the jury’s present value finding simply because it was “very close to the amount

28

suggested to the jury by plaintiffs’ counsel”).

Merits. The trial court acted within its broad discretion in denying the

motion for new trial and rejecting Defendant’s second argument on appeal.

Indeed, had the trial court not reversed its earlier order granting a new trial based

on Defendant’s second argument, the trial court would have erred as a matter of

law and abused its discretion. The reasons are as follows:

(1) The record does not reflect that the jury failed to reduce the value of

the award for medical treatment in the future to present value. Plaintiff first

requested that the jury return an award of “about $760,000 through $830,000” for

future medical expenses and then stated the future economic damages would be

between “750- and 850-.” (T. 1265.) The jury returned a verdict for less than the

high end of Plaintiff’s request by awarding $750,000 for future medical treatment.

(R. 1787.)

(2) Even if the jury had found that the present value was equal to the

amount of future economic damages, it would not prove that the jury failed to

follow the trial court’s jury instructions. Waxman v. Truman, 792 So. 2d 657, 659

(Fla. 4th DCA 2001); accord Burgess v. Mid-Florida Serv., 609 So. 2d 637, 638

(Fla. 4th DCA 1992). A jury is permitted to find that the present value is equal to

future damages. Burgess, 609 So. 2d at 638 (citing Delta Air Lines Inc. v. Ageloff,

552 So. 2d 1089 (Fla. 1989)); accord Alesse v. Baker, 758 So. 2d 1234, 1235-36

29

(Fla. 5th DCA 2000). In Waxman, the appellate court held:

[T]he trial court ordered a new trial because it erroneously believed that the present value of an award for future economic damages must be less than the total amount of future economic damages awarded. Because the trial court’s order for new trial was based upon an erroneous legal assumption, we reverse.

792 So. 2d at 659. Waxman cannot be materially distinguished from this case.

(3) Plaintiff was not required to offer any expert testimony or other

evidence on the present value of the future medical expenses. Footnote 2 to the

standard jury instruction states: “[I]f the parties offer no evidence to control th[e

present value] finding, th[en] the jury properly resorts to its own common

knowledge as guided by instruction 501.7 and by argument.” Fla. Std. Jury Intr.

(Civ.) 501.7 n.2 (citing Seaboard Coast Line R.R. Co. v. Burdi, 427 So. 2d 1048

(Fla. 3d DCA 1983)).

III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING A NEW TRIAL AS A RESULT OF A JUROR’S NON-DISCLOSURE OF PRIOR LITIGATION.

Standard of Review. “The standard of review for a motion for new trial

based on a juror's alleged non-disclosure during voir dire is abuse of discretion.”

State Farm Fire & Cas. Co. v. Levine, 875 So. 2d 663, 666 (Fla. 3d DCA 2004).

Merits. To establish that a juror’s non-disclosure of information during voir

dire warrants a new trial, Defendant was required to show that:

(1) the information is relevant and material to jury service in the case;

30

(2) the juror concealed the information during questioning; and

(3) the failure to disclose the information was not attributable to the complaining party’s lack of diligence.

De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995); accord Fine v. Shands

Teaching Hosp. & Clinics, Inc., 994 So. 2d 426, 427 (Fla. 1st DCA 2008).

Defendant had the burden of proving each prong of the three-part test. See, e.g.,

State Farm Fire & Cas. Co. v. Levine, 875 So. 2d 663, 666 (Fla. 3d DCA 2004).

Defendant’s supplemental motion for new trial alleged that Juror Roberts

allegedly failed to disclose five civil matters. (R. 1795-97.) As a preliminary

matter, Defendant failed to present competent evidence that Juror Roberts was, in

fact, the same “Quinell Roberts” involved in the prior litigation. The scarce

evidence presented by Defendant may have been attributable to its failure to

persuade the trial court to grant an interview of Juror Roberts. (1842-43.)

Defendant, however, has failed to challenge in its initial brief the trial court’s

decision not to allow an interview, and thus, it should be not be allowed to raise

such an appellate claim in its reply brief. Hall v. State, 823 So. 2d 757, 763 (Fla.

2002) (holding an appellant is procedurally barred from making new arguments in

his reply brief); Fla. R. App. P. 9.210(d) (“The reply brief shall contain argument

in response and rebuttal to argument presented in the answer brief.”).

Even if Defendant did present competent evidence of Juror Roberts’ prior

31

litigation, the trial court did not abuse its discretion in concluding that Defendant

failed to establish each prong of the three-part test stated immediately above. First,

the information allegedly concealed by Juror Roberts was not material to jury

service in this case; second, Juror Roberts did not conceal the information; and

third, any failure by Juror Roberts to disclose the information is attributable to

defense counsel’s lack of diligence.

A. The allegedly undisclosed matters were not material to Juror Roberts’ service in this case.

Defendant was required to prove to the trial court that Juror Roberts’ alleged

non-disclosures were material to jury service in this case. See Roberts v. Tejada,

814 So. 2d 334, 340 (Fla. 2002) (“Materiality must be analyzed on a case-by-case

basis.”) A new trial is not automatically mandated whenever a juror fails to

disclose prior litigation history. Id.; see also id. at 341 (noting that prior litigation

history is not per se material); accord Murphy v. Hurst, 881 So. 2d 1157, 1160-61

(Fla. 5th DCA 2004). Materiality is shown only “where the ‘omission of the

information prevented counsel from making an informed judgment – which would

in all likelihood have resulted in a peremptory challenge.’” Roberts, 814 So. 2d at

340 (quoting De La Rosa, 659 So. 2d at 242); accord Fine, 994 So. 2d at 428.

The trial court could have reasonably concluded that, if Juror Roberts had

disclosed his alleged litigation history, it was unlikely that such a disclosure would

have resulted in Defendant exercising a peremptory to strike Juror Roberts from

32

the panel. There are four reasons that the trial court would not have abused its

discretion in reaching this conclusion.

(1) Almost all of the allegedly non-disclosed matters were remote in time.

With one exception (a notice of lis pendens filed in 2010), these matters were at

least seven years old at the time of trial, as they occurred between 1995 and 2004.

(R. 1795-97.) See Roberts, 814 So. 2d at 342 (“Remoteness in time is one aspect

to consider in determining the impact, if any, of a juror’s prior exposure to the

legal system on his present ability to serve in a particular case.”)

(2) Juror Roberts’ alleged prior litigation – as a defendant in collection

actions, actions for eviction or past-due rent, and foreclosures (R. 1795-97) – was

not similar to Plaintiff’s personal injury claim in this case. Omitted information is

material when “it implies a bias or sympathy for the other side which in all

likelihood would have resulted in the use of a peremptory challenge.” McCauslin,

985 So. 2d at 561 (citations omitted); accord Garnett, 767 So. 2d at 1231. But,

here, Juror Roberts never was allegedly a personal injury plaintiff or in any other

similar posture that would have implied a bias or sympathy for Plaintiff. Instead,

Juror Roberts was named as a defendant in five, non-personal injury lawsuits. (R.

1795-97.) If anything, Juror Roberts would have favored Defendant, not Plaintiff.

See, e.g., Garnett v. McClellan, 767 So. 2d 1229, 1231 (Fla. 5th DCA 2000)

(reversing new trial granted for the defense, where any bias of juror – who had not

33

disclosed that she was at fault in an automobile accident – would have been in

favor of the defendant).

(3) Defendant failed to strike any of the five potential jurors with prior

litigation similar to Juror Roberts’ alleged prior litigation. Supra at 10-11. See

Gamsen v. State Farm Fire & Cas. Co., 68 So. 3d 290, 293 (holding that it was

appropriate to look to the objecting party’s failure to strike certain jurors who

disclosed prior litigation history in order to determine whether the objecting party

would have struck the juror with an alleged non-disclosure). Those potential jurors

were involved in, among other things, a collections matter and undisclosed “law

proceedings.” (T. 35, 45-46, 50-51, 188-89.) Because Defendant was unwilling to

strike these potential jurors with litigation histories similar to Juror Roberts’

alleged history, the trial court could have reasonably concluded that Defendant

would not have struck Juror Roberts if Defendant had known about his alleged

litigation.

(4) Defendant failed to strike three of the four potential jurors with

litigation history that typically would indicate a bias or sympathy for a personal

injury plaintiff like Plaintiff.10 Supra at Facts, Part C(3), at 8-9. As discussed

above, non-disclosed information is material when it shows “bias or sympathy for

10 Defense counsel did exercise a peremptory challenge to strike one prospective juror (Mr. Eadeh) (T. 250), who disclosed at voir dire that he had suffered back injuries in an automobile accident. (T. 166-68.)

34

the other side.” McCauslin, 985 So. 2d at 561. But, in this case, Defendant failed

to strike three jurors with a potential bias or sympathy for a personal injury

plaintiff (a workers’ compensation claimant, a claimant for property damage

against GEICO and member of a class action suit, and a woman with a relative

who was a medical malpractice plaintiff). Supra at Facts, Part C(3), at 8-9. These

individuals, based on their litigation history, typically would have more sympathy

for the Plaintiff than Juror Roberts would have. The trial court could have

reasonably concluded that, if Defendant was unwilling to strike these jurors, it

would not have exercised a peremptory to strike Juror Roberts. See Gamsen, 68

So. 3d at 293-94.

In summary, the trial court have reasonably concluded that Juror Roberts’

undisclosed litigation history was not material to his jury service in this case.

B. Juror Roberts did not conceal his prior litigation history in response to straightforward and direct questioning.

To establish the second prong of concealment, Defendant had to demonstrate

to the trial court that the questions at voir dire were “straightforward and not

reasonably susceptible to misinterpretation.” Tran v. Smith, 823 So. 2d 210, 213

(Fla. 5th DCA 2002). Attorneys and trial judges must ask questions in language

that “an average citizen not exposed to a panoply of legal processes would be

capable of understanding.” Roberts, 814 So. 2d at 344. “Information is considered

concealed” only where “the information is ‘squarely asked for’ and not provided.”

35

Taylor, 911 So. 2d at 1268 (citing Birch v. Albert, 761 So. 2d 355, 358 (Fla. 3d

DCA 2000). When a juror’s response to a question related to litigation history is

“ambiguous and counsel does not inquire further to clarify that ambiguity,” the

juror’s answer “cannot constitute concealment.” Tran, 823 So. 2d at 213 (citation

omitted). The context in which the questions were asked, and the answers given

by other jurors, “also play a role in the analysis.” See McCauslin v. O’Conner, 985

So. 2d 558, 562 (Fla. 5th DCA 2008).

Defendant failed to establish that Juror Roberts concealed information at

voir dire. Juror Roberts’ response to the trial court’s question related to his

involvement as a party in a lawsuit was ambiguous. Juror Roberts stated, “I have –

have not been involved in a party or witnesses in a lawsuit.” (T. 37.) From this

response, it is unclear whether Juror Roberts intended to respond that he had – or

had not – been involved as a party to a lawsuit. Despite this ambiguity, defense

counsel failed to inquire about Juror Roberts’ prior litigation.

Indeed, no one ever squarely asked Juror Roberts for his prior litigation

history. The jury questionnaire was not clear to an ordinary person. This was

demonstrated by the fact that several members of the venire, despite being given

the questionnaire, initially failed to disclose relevant litigation history. Supra at 7-

8. Notably, during his questioning of the prospective jurors, defense counsel did

not elaborate on the kinds of legal actions that could be considered “lawsuits,”

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define a “party” to a lawsuit, or otherwise explain the type of prior proceedings

that prospective jurors should disclose. He simply relied on the explanation of the

types of lawsuits given by Plaintiff’s counsel. (T. 188.)

For these reasons, Defendant’s claim – that Juror Roberts concealed his

litigation history – is without merit. Prospective jurors were asked broad questions

related to their involvement as a party or witness to a lawsuit. Given the context of

the questions asked, and the answers given by the venire, the trial court could have

reasonably concluded that Juror Roberts “did not so much conceal” his prior

litigation history but instead “fail[ed] to appreciate that disclosure was required.”

McCauslin, 985 So. 2d at 562.

C. Juror Roberts’ failure to disclose information can be attributed to Defendant’s lack of due diligence at voir dire.

The third and final prong analysis required Defendant to show that Juror

Roberts’ purported failure to disclose information was not attributable to

Defendant’s lack of diligence. De La Rosa, 659 So. 2d at 241. “The due-diligence

test requires that counsel sufficiently inquire about information that potential jurors

are being asked to disclose.” McCauslin, 985 So. 2d at 562.

In Tricam Industries, Inc. v. Coba, ___ So. 3d ___, 2012 WL 3733642 (Fla.

3d DCA August 29, 2012), the Third District recently held that in the appropriate

circumstances, a trial court may “consider a trial counsel’s refusal to run a juror’s

litigation history as one of several factors under a due diligence inquiry.” In that

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case, the trial court suggested during the trial that the attorneys run the jurors’

litigation histories while an alternate juror was still available, but plaintiff’s

counsel declined after noting that it had been a problem in past trials. Id. at *9.

The trial court denied plaintiff’s motion for new trial based on juror non-disclosure

of past litigation history where the juror in question failed to disclose his divorce,

three foreclosures, and two collection actions in response to a question asking

whether he had ever been sued in part because the complaining party did not take

advantage of the opportunity to run the jurors’ litigation histories. Id. at *2.

Similarly, in the instant case, even after it became clear that the jurors did not

understand the original question on the questionnaire, defense counsel did little to

follow up with more specific questions.

Here, Defendant’s voir dire was brief. (See T. 214-41.) Although Plaintiff’s

counsel informed defense counsel during voir dire that Juror Roberts may have had

a history of litigation (R. 1839-40),11 defense counsel did not ask Juror Roberts

whether he may have been sued in the past or seek to clarify his ambiguous

response to the jury questionnaire. Defense counsel also did not elicit additional

information related to the potential jurors’ involvement in other types of legal

actions. Although at least eight prospective jurors disclosed some past litigation

11 Defense counsel denied that he was ever told by Plaintiff’s counsel about Juror Roberts’ litigation history (R. 1915-17); however, the trial court in the exercise of its discretion was free to conclude that defense counsel was told this.

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experience, defense counsel followed up only with Mr. Dougherty, the worker’s

compensation claimant. (T. 219-20.)

If a juror’s prior litigation history were material to jury service (as

Defendant now contends), defense counsel should have diligently inquired about

the prospective jurors’ litigation history – especially given the fact that Plaintiffs’

counsel provided defense counsel information about Juror Roberts’ prior litigation

history. The trial court could have reasonably concluded that Defendant’s failure

to make sufficient inquiry constituted a lack of due diligence. Cf. McCauslin, 985

So. 2d at 562-63 (reversing order granting new trial, and finding that “prudent

probing by defense counsel … might well have resolved the problem”).

In sum, Defendant failed to establish each of the elements necessary to

establish a party’s entitlement to a new trial for juror non-disclosure.

IV. THE TRIAL COURT DID NOT ERR IN DIRECTING VERDICT FOR THE PLAINTIFF ON CAUSATION.

Standard of Review. The standard of review of an order granting a directed

verdict is de novo. Rosa v. Dep’t of Children & Families, 915 So. 2d 210, 211

(Fla. 1st DCA 2005). “An appellate court reviewing the grant of a directed verdict

must view the evidence and all inferences of fact in the light most favorable to the

nonmoving party, and can affirm a directed verdict only where no proper view of

the evidence could sustain a verdict in favor of the nonmoving party.” Owens v.

Publix Supermarkets, Inc., 802 So. 2d 315, 329 (Fla. 2001).

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Preservation. Defendant waived this issue by agreeing with the trial

court’s decision below in granting a directed verdict on causation. Notably,

Defendant did initially argue that the evidence relating to Plaintiff’s pre-existing

neck injuries created a conflict in the evidence (T. 1217), but eventually agreed

multiple times with the trial court’s conclusion that there was no conflict in the

evidence regarding causation (T. 1219, 1220). See Aills v. Boemi, 29 So. 3d 1105,

1108-09 (Fla. 2010) (holding proper preservation of error for appellate review

requires a timely, contemporaneous objection, a statement of the legal ground for

that objection, and that the argument must be the specific contention asserted as a

legal ground below).

Merits. The trial court did not err in granting a directed verdict on causation

where no view of the evidence could sustain a verdict in favor of the Defendant.

Though Wald v. Grainger, 64 So. 3d 1201 (Fla. 2011) specifically addressed the

grant of a directed verdict on permanency, the reasoning applies to a directed

verdict on causation. “[W]hen medical evidence on [causation] is undisputed,

unimpeached, or not otherwise subject to question based on the other evidence

presented at trial, the jury is not free to simply ignore or arbitrarily reject that

evidence and render a verdict in conflict with it.” Id. at 1205. Here, defense

counsel stipulated that both defense experts testified that they thought the Plaintiff

suffered a temporary exacerbation of her existing medical problems as a result of

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the motor vehicle accident. (T. 1216-20.) When defense counsel was questioned

by the trial court on this concession, he responded using the terms “agreed” and

“correct.” (T. 1219-20.)

In Wald, the Supreme Court of Florida did caution that when a medical

expert’s opinion is predicated on an incomplete or inaccurate medical history, the

jury is free to reject medical testimony. Id. at 1206. But that is not the case here.

Though Defendant argued below and on appeal that Plaintiff gave an inaccurate

medical history to her treating physician (Initial Br. 29-20), it admitted at the time

of argument on the motion for directed verdict (T. 1220) and in closing argument

that the Plaintiff had at least some medical expenses caused by the car accident (T.

1280-81). The conflict in the evidence identified by defense counsel was relevant

to the issue of permanency, not causation.

This case is distinguishable from Cox v. St. Josephs Hospital, 71 So. 3d 795

(Fla. 2011), cited by Defendant (Initial Br. 32). In that case, there was an actual

conflict in the evidence on causation. Id. at 801(defendant relied on a study to

deny causation and plaintiff’s expert disagreed with the defendant’s

characterization of the study). Here, Defendant conceded not only that the defense

experts agreed with the Plaintiff’s experts that the accident was the cause of at least

some of Plaintiff’s medical expenses, but also that there were undeniable monetary

damages as a result of the accident. (T. 1217-18.) This is not a case where any

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allegedly inaccurate medical testimony could create a conflict in the evidence as to

whether Plaintiff’s damages were caused by the car accident. The jury was not

free to reject all of the testimony regarding causation, including uncontradicted

testimony.

CONCLUSION

This Court should affirm the trial court’s final judgment.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Dennis Dore, Esquire, dpdore@dorelaw.com, and Bradley Little, Esquire, blittle@dorelaw.com, Attorneys for Appellant; and Michael Marrese, Esquire, Trial Counsel for Appellee, mmarrese@forthepeople.com, mhenson@forthepeople.com, on this 4th day of October, 2012.

CREED & GOWDY, P.A.

/s/ Bryan S. Gowdy Attorney

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing brief is in Times New Roman 14-point font and complies with the font requirements of Rule 9.210(a)(2), Florida Rules of Appellate Procedure.

/s/ Bryan S. Gowdy

Attorney