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Florida Fifth DCA affirms in part trial court order granting new trial after defense verdict denied plaintiff recovery of the past medical expenses for treatment of her injuries

On October 4, 2019, in Hummel v. Taft, No. 5D18-459, the Florida Fifth DCA affirmed in part and reversed in part an order by the trial court granting a plaintiff a new trial in a motor vehicle negligence case. The Fifth DCA affirmed the trial court’s granting of a new trial after the defense verdict denied the plaintiff recovery of her past medical expenses for treatment of her injuries, concluding that the trial court did not abuse its discretion in determining that the jury’s verdict was contrary to the manifest weight of the evidence and citing Van v. Schmidt, 122 So. 3d 243, 252–53 (Fla. 2013) (confirming general rule that where trial court orders new trial because verdict was against manifest weight of evidence “the appellate court applies the reasonableness test—if an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion”). The Fifth DCA noted in this context that the defense’s only expert witness on causation initially agreed that the plaintiff suffered an injury as a result of the accident (which would entitle her to compensation for related medical expenses) before vacillating on the issue. However, the Fifth DCA concluded that the trial court erred in granting a new trial as to all issues rather than limiting the new trial to the determination of damages for non-permanent injuries. The trial court had acknowledged that that the defense expert’s position that the plaintiff did not receive a permanent injury (entitling her to non-economic damages) was “certainly within the realm of the jury to accept or reject.” The Fifth DCA cited Hertz Corp. v. Gleason, 874 So. 2d 1217, 1220 (Fla. 4th DCA 2004) (holding that new trial was to be limited to determining damages for orthopedic and soft tissue injuries, where evidence on whether plaintiff suffered any neurological damages as result of accident “sharply conflicted”).

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