TORTS: PERSONAL INJURY: CAUSATION: SHOPPER STRUCK IN BACK BY 8.4 OUNCE, SQUISHY, ORNAMENTAL PUMPKIN: TRIAL COURT ERRED BY GRANTING NEW TRIAL ON DAMAGES FOR INITIAL MEDICAL EVALUATION OF PLAINTIFF, AFTER JURY RETURNED ZERO VERDICT, BECAUSE BIOMECHANICAL ENGINEER TESTIFIED IMPACT COULD NOT HAVE CAUSED INJURY TO PLAINTIFF; APPEALS: PRESERVATION: PLAINTIFF DID NOT PRESERVE CHALLENGE TO VERDICT BECAUSE SHE FAILED TO OBJECT TO JURY INSTRUCTIONS OR VERDICT FORM AND FAILED TO MOVE FOR A DIRECTED VERDICT ON ENTITLEMENT TO RECOVERY OF DIAGNOSTIC BILLS

Schwartz v. Wal-Mart Stores, Inc., ___ So. 3d ___, 40 Fla. L. Weekly D215 (Fla. 5th DCA January 16, 2015)

The plaintiff was struck in the back by an 8.4 ounce, squishy, ornamental pumpkin while shopping at Wal-Mart. Although the store admitted that its employees were negligent, it “vigorously contested causation and damages” and called a biomedical engineer, who testified that the impact could not have caused injury to the plaintiff. The jury returned a verdict for zero damages, but the trial court granted a new trial on damages for initial medical evaluation. The appellate court reversed because the expert testimony from the biomedical engineer “sufficiently supported the conclusion that the impact could not have caused any injury to [the plaintiff].” In general, “the plaintiff is still entitled to recover those expenses incurred for medical examination and diagnostic testing reasonably necessary to determine whether the incident caused injuries” “even when a jury finds that a plaintiff was not injured as a result of the subject accident.” Exceptions to this general rule exist if there is evidence of “pre-existing injuries with extensive treatments, lack of candor with the treating physicians, video tapes that show actual physical capabilities, and expert medical opinions which conflict as to causation.” The biomedical testimony in this case triggered the exception to the general rule. Furthermore, the plaintiff failed to preserve the claimed error by failing to object to the jury instructions and verdict form and failing to move for a directed verdict on entitlement to recover the cost of initial medical evaluation. The verdict form instructed the jury to date and sign the verdict form if it found that negligence on the part of the defendant was not a cause of loss, injury, or damage to the plaintiff. The plaintiff did not ask to modify the verdict form to enable the jury to make findings, despite a negative response to the causation question, “whether it was reasonable and necessary for [the plaintiff] to have incurred medical expenses for her initial diagnostic care and, if so the amount of those expenses. Additionally, [the plaintiff] never moved for a directed verdict on the issue of recovery for these diagnostic bills. In failing to do so, she elected to leave this issue up to the jury. . . . Therefore, because there was sufficient evidence to support the jury’s finding that Wal-Mart did not cause [the plaintiff] any loss, injury, or damage, and because [the plaintiff] elected to leave this issue up to the jury, [the court found] that the granting of a new trial was unwarranted.”

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