Bachman v. Oliveros, Case No. 5D18-3376
| Decision Date | 20 March 2020 |
| Docket Number | Case No. 5D18-3376 |
| Citation | 293 So.3d 555 |
| Parties | Jeb BACHMAN, Appellant, v. Alex OLIVEROS and H.A.T. Service Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Morgan L. Weinstein, of Weinstein Law P.A., Fort Lauderdale, for Appellant.
Diran V. Seropian, of Shendell & Pollock, P.L., Boca Raton, for Appellees.
Appellant Jeb Bachman was the plaintiff in a personal injury motor vehicle collision case that went to a jury trial and resulted in a verdict for Appellees/defendants. Bachman sought a new trial on all issues of damages, based upon supposed errors in the verdict form itself and his claim that the verdict was against the manifest weight of the evidence. He now appeals the order denying his motion for new trial. We find that Bachman’s dissatisfaction with the form of verdict cannot be attributed to the trial court. Furthermore, because there was disputed evidence regarding whether or not he suffered any aggravation or exacerbation to an existing condition, or whether he suffered any injury at all as a result of the collision, we affirm the order denying new trial; thus, the jury’s verdict will stand. We explain below how we arrived at our decisions.1
In the accident, Bachman’s car was struck from behind by Appellees’ truck. Appellees conceded fault, but contested that the collision caused Bachman any injuries. Bachman admitted that the damage to his car was mostly cosmetic. Bachman was taken by ambulance from the accident scene to the hospital where he was examined, treated, and released. Emergency department records described his injury status as mild. Over time, he treated with several physicians who agreed with Appellees’ medical experts that, at the time of the accident, Bachman already had arthritic bone spurs and some disc issues in his neck. Bachman’s medical witnesses testified that the collision aggravated these pre-existing conditions to the extent that ongoing treatment and ultimately surgery were required. His medical witnesses also testified that they causally related his complaints of dizziness and memory issues to the collision.
On the other hand, Appellees’ medical witnesses testified that the collision did not cause any structural damage to Bachman’s neck or brain, and attributed the majority of his discomfort, subjective complaints of pain, and need for treatment to age-related disc degeneration and arthritis in the neck. Furthermore, Appellees’ medical experts opined that any dizziness and issues regarding memory loss were caused by age-related changes to the brain rather than being involved in the collision. Two physicians, retained by Appellees, testified that Bachman’s initial complaints of neck pain and headaches were soft-tissue injuries likely caused by the collision. However, at least one of those doctors qualified his opinions, at times, by saying that one would have to find his subjective complaints believable before concluding that they were accident-related. A third doctor, a neurologist who examined Bachman for his personal injury protection insurer, testified that the accident caused no injury at all and said that whether Bachman’s subjective complaints of pain were valid was a question for the jury to decide.
Appellees aggressively cross-examined Bachman regarding the information he supplied to the various health care providers concerning his conditions and symptoms. Bachman several times said that he could not recall what he said and stated that at least one narrative account prepared by first responders was not an accurate recital of what he told them at the accident scene regarding whether he lost consciousness. Appellees also provided evidence at trial that Bachman’s injuries on the day of the accident may not have been as severe as he had stated in testimony.
Bachman moved for a directed verdict on the single issue of permanency, which is required for clearing the no-fault threshold.2 He sought a ruling that, as a matter of law, each and every injury the jury found had been caused by the collision would qualify as a permanent injury. Appellees conceded that if the jury found a causal relationship between the accident and any injury, it should be considered a permanent injury because even Appellees’ doctors agreed that the duration of Bachman’s subjective complaints was consistent with a permanent injury. However, Appellees made it clear that they were not conceding causation. Bachman did not move for a directed verdict on any other issue. During the charge conference, jury instructions and the verdict form were discussed, amended as needed, and finally agreed upon by both sides. The jury heard closing arguments, was instructed on the law, deliberated, and returned a complete defense verdict in favor of Appellees. Bachman’s motion for new trial was denied without elaboration.
Bachman argues that the mutually agreed-upon verdict form contained defects that prevented the jury from returning a proper verdict, which he further claims should entitle him to a new trial on damages. Before engaging in any discussion or analysis, we will consider the first and only question that the jury answered along with the verdict form’s directions of what the jury should do based on its answer to question 1.
We, the jury, return the following verdict:
As instructed above, after answering Question #1 "No," the jury did not answer any of the remaining questions which focused on damages, and the foreperson dated and signed the verdict form. The jury’s verdict was announced in open court with both sides present.
First, Bachman asserts that although he sought recovery for the aggravation of his pre-existing injuries or conditions, the verdict form did not contain those terms anywhere; thus, he claims the jury was erroneously prevented from returning a just verdict. However, the record is clear—and Bachman concedes—that he not only failed to object to the verdict form that was used, he also expressly agreed to its use. Bachman claims that the use of the agreed-upon verdict form denied him the right to have the jury decide a core issue, which he then characterizes as fundamental error, and asks for the remedy of a new trial.
Bachman’s position is at odds with the pronouncement of the Florida Supreme Court that "in civil cases, reversal based on the concept of ‘fundamental error’ where a timely objection has not been made is exceedingly rare." Coba v. Tricam Indus., Inc. , 164 So. 3d 637, 646 (Fla. 2015). "[F]undamental error must implicate a constitutional right, such as due process, or the error must be so significant that requiring a new trial is essential to maintain public trust in our jury trial system." Id. (citing Murphy v. Int’l Robotic Sys. , 766 So. 2d 1010, 1026 (Fla. 2000) ). Bachman has not explained how the use of this verdict form comes close to clearing the fundamental error hurdle. Bachman’s position is further frustrated by the invited error doctrine, which provides that even fundamental error may be waived where counsel requests or agrees to giving an improper jury instruction or, as here, the use of a possibly improper verdict form. Morgan v. State , 146 So. 3d 508, 512 (Fla. 5th DCA 2014). "The fault should not be laid upon the trial judge; rather, it must be placed upon the [appellant’s] trial attorney who led the court into error by approving, or failing to object to, the form of the verdict before it was submitted to the jury." Keller Indus., Inc. v. Morgart , 412 So. 2d 950, 951 (Fla. 5th DCA 1982).
Second, Bachman claims that because Appellees admitted fault for causing the accident, he was entitled, at a minimum, to an award of damages for reasonable expenses incurred soon after the collision for medical transportation, examination, diagnosis, and testing. Indeed, that is the general rule which is typically learned and used by attorneys on both sides of such cases. See, e.g. , Hernandez v. Gonzalez , 124 So. 3d 988, 991 (Fla. 4th DCA 2013). However, Bachman waived his right to recover those damages by failing to move for a directed verdict on that issue. Id. at 992. "[I]n failing to so move, [he] elected to leave this issue up to the jury." Martin v. Chapman , 780 So. 2d 929, 930 (Fla. 5th DCA 2001). Furthermore, the jury instructions and verdict form, which both sides accepted, did not give the jury the option of awarding initial medical expenses if they found Bachman was not injured as a result of the collision. Bachman’s failure to object to the jury instructions and verdict form waived any right to a new...
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