Crosby v. Fleming & Sons, Inc.
| Decision Date | 02 March 1984 |
| Docket Number | No. AO-98,AO-98 |
| Citation | 447 So.2d 347 |
| Court | Florida District Court of Appeals |
| Parties | Robert L. CROSBY and Bernice O. Crosby, Appellants, v. FLEMING & SONS, INC., a corporation, Benjamin Johnson and Safeco Insurance Company, a corporation, Appellees. |
Christine Rieger Milton of Mahoney, Hadlow & Adams, Jacksonville, for appellants.
William M. Howell of Howell, Liles, Braddock & Milton, Jacksonville, for appellees.
The Crosbys appeal from the trial court's order directing a remittitur of $105,000.00 of the $350,000.00 in damages awarded by the jury to Robert Crosby and $20,000 of the $50,000.00 awarded his wife, Bernice, or, if they do not agree to the remittitur, granting defendants' motion for a new trial. Appellees cross-appeal the trial court's denial of their motion for continuance. We strike that portion of the order directing the remittitur, find no abuse of discretion in the granting of a new trial, and, in light of our affirmance of the new trial order, see no need to address appellees' contention on cross-appeal.
The gravamen of this appeal is the extent of the damages suffered by Robert L. Crosby on December 14, 1979, when the vehicle he was operating was struck from the rear by a truck being operated by Benjamin Johnson, an employee of Fleming & Sons, Inc. He claimed $9,100.00 for past medical bills, $1,000.00 for future medical tests, $43,691.36 for past lost wages, $160,300.77 for future lost wages, and $150,562.50 for pain and suffering, the sum total being $364,654.63. His wife, too, sought $50,000.00 for loss of consortium. The trial was had before a jury, which awarded Robert $350,000.00 and his spouse $50,000.00. Liability, although disputed in the trial court, is not contested by appellees in this appeal.
The genesis of the events leading to the new trial occurred on July 2, 1982, or ten days before the trial's commencement, when appellees took a deposition of Robert Crosby's primary treating physician, Dr. Hocker, in an effort to further prepare for trial. Later that day, they moved for a continuance based upon the unexpected testimony of the doctor to the effect that Crosby's condition had worsened and that further tests, such as a myelogram, and possibly further surgical procedures would be required. The motion came up for hearing the morning of the trial and was denied; however, the trial court ruled that Dr. Hocker would not be permitted to speculate as to what further tests might show or what further procedures might be required.
On direct examination, and despite appellees' counsel's repeated objections and the trial court's repeated admonitions to the doctor to confine his opinion to his previous examinations and diagnostic tests, Dr. Hocker engaged in continued speculation, couched in terms of possibilities, not probabilities, as to what Crosby's future condition and medical needs might be. For example, when asked when he last saw Crosby, Hocker non-responsively answered in part: ...
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White v. Westlund
...testimony regarding the "possibility" of a future mastectomy erroneously admitted and not harmless); Crosby v. Fleming & Sons, Inc., 447 So.2d 347, 349 (Fla. 1st DCA 1984) (affirming trial court's grant of new trial where plaintiff's primary treating physician rendered an opinion as to plai......
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Gup v. Cook, BS-490
...probative of Mrs. Cook's future damages. See Florida Standard Jury Instructions (Civil) 6.1(b) and 6.2(c) 2; Crosby v. Fleming & Sons, Inc., 447 So.2d 347 (Fla. 1st DCA 1984) (trial court affirmed in awarding new trial following jury verdict in personal injury action in which the treating p......
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Shearon v. Sullivan
...DCA 1989), quashed in part, 585 So.2d 926 (Fla.1991); 3-M Corp. v. Brown, 475 So.2d 994 (Fla. 1st DCA 1985); Crosby v. Fleming & Sons, Inc., 447 So.2d 347 (Fla. 1st DCA 1984). Appellant contends that her case was severely prejudiced, in that if the trial court had not erroneously excluded t......
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3-M Corp. McGhan Medical Reports Div. v. Brown
...the possibility of a mastectomy. This evidence was improperly admitted and cannot be considered harmless. Crosby v. Flemming and Sons, Inc., 447 So.2d 347 (Fla.1st DCA 1984), a recent decision of this court, affirmed the trial court's award of a new trial following a jury verdict in a perso......