Fitzgerald v. Molle-Teeters
| Decision Date | 19 February 1988 |
| Docket Number | A,No. 87-1544,MOLLE-TEETER,87-1544 |
| Citation | 520 So.2d 645,13 Fla. L. Weekly 494 |
| Parties | 13 Fla. L. Weekly 494 Peter David FITZGERALD, Appellant, v. Elizabethppellee. |
| Court | Florida District Court of Appeals |
Claire L. Hamner of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellant.
C. Samuel Newman of L.D. Beltz & Associates, St. Petersburg, for appellee.
Appellant Fitzgerald, the defendant below, appeals from the trial court's order granting a new trial. Appellee/plaintiff Molle-Teeters sought damages for a permanent injury resulting from a 1983 automobile accident in which Fitzgerald was the driver of an automobile, and Molle-Teeters was the passenger in another vehicle. Fitzgerald admitted liability before the trial.
The sole issue before us is whether the trial court committed reversible error in granting a new trial. We reverse and set aside that order.
The following reasons were listed by the trial court for granting a new trial:
1. In the verdict, the jury found Molle-Teeters had suffered a permanent injury.
2. Since Fitzgerald admitted liability, there was no question of comparative negligence.
3. The amount awarded ($8,614.25) was exactly three dollars ($3.00) more than Molle-Teeters' total medical bills and past lost wages.
4. Molle-Teeters, at 29 years, had a life expectancy of approximately fifty years, a fact of which the jury was made aware.
5. Molle-Teeters presented evidence that she incurred pain and suffering, disability, mental anguish and loss of capacity for the enjoyment of life for a period subsequent to the accident.
6. Molle-Teeters submitted evidence that the medical bills were a result of the accident, and were reasonable and necessary.
7. Evidence was presented that the lost income of $900 was a result of the accident.
8. An award of $3.00 to compensate Molle-Teeters for pain and suffering, disability, mental anguish and loss of capacity for the enjoyment of life, both past and future, was inadequate and clearly contrary to the law.
At the time of the accident in question, Molle-Teeters was 25 years old, and the evidence presented at trial revealed that even prior to the 1983 accident, she had experienced significant medical problems:
a. After involvement in a 1975 automobile accident, she continues presently to experience an occasional stiff neck, following a night's sleep.
b. She received a 1980 medical discharge from the Marine Corps because of developing back and hip pain.
c. A 1982 automobile accident, which Molle-Teeters described as "really bad," resulted in neck problems which have never been completely resolved.
d. After seeking treatment in 1982, she received a neurosurgeon's diagnosis of Grade 4 spondylolistheseis of "L5 on S1" (resulting in pain in the back) and a right S1 radiculopathy condition (causing pain shooting down the leg to the foot). Medical testimony described these conditions as congenital, or "acquired" before 1982.
e. In 1983, Molle-Teeters sought treatment from another neurosurgeon, complaining of back and right leg pain. She mentioned to the doctor that she had major pelvic surgery in 1978 and had received a warning sign of back problems at the time of the surgery, but had attributed this to the surgery, not realizing she had back problems until they were diagnosed in 1980 while in the Marine Corps.
Molle-Teeters testified that she had a history of pelvic inflammatory diseases extending over nine years, which included two or three surgeries for that condition. The expert medical evidence presented at trial was in conflict as to whether the 1983 accident caused any permanent injury, or aggravated a previously existing condition.
Dr. Alvis, a neurologist, one of two expert witnesses testifying for Molle-Teeters, whose deposition was read at trial, examined her on one occasion, and testified that as a result of the 1983 accident, Molle-Teeters suffered from an impairment of the neurological control of the bladder caused by impact to the cauda equina nerves. Dr. Alvis testified he could reach that opinion to a reasonable degree of medical certainty. Dr. Alvis admitted that Molle-Teeters did not inform him about the 1975 and 1982 automobile accidents, and that in order to confirm a neurogenic bladder condition, which he suspected, further work needed to be done, "[b]ecause all we have at this point is, from the history she's given us."
Dr. Insoft, a urologist to whom Dr. Alvis referred Molle-Teeters, opined that the bladder problem, manifested by frequent urination only at night, was inconsistent with a permanent injury to the bladder's nerve supply. Dr. Insoft observed that such an injury would result in frequent urination being present both day and night.
Dr. Bruce, a chiropractor who treated Molle-Teeters almost three years following the 1983 accident did not testify.
Molle-Teeters' medical bills, admitted into evidence at trial, were as follows:
PROVIDER DATES OF SERVICE AMOUNT
Sarasota Memorial Hospital 11/24/83 $ 323.25
Radiology Associates of Sarasota 11/24/83 85.00
Robert Bruce, D.C. 12/4/83" 9/3/86 2,594.00
The Chiropractic Center, P.A. 4/9/84 90.00
Mobile Medical Services, Inc. 9/25/84 950.00
Angelo M. Alvis, M.D., P.A. 3/18/86" 4/2/86 1,990.00
C.T. Scanning Professional Assoc. 3/18/86 900.00
Michael W. Meriweather, M.D. 6/12/86" 1/29/87 115.00
L.W. Blake Memorial Hospital 7/23/86 50.00
Marc S. Kallins, M.D. 7/23/86" 1/29/86 616.00
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TOTAL $7,713.25
This court recognizes that McNair v. Davis, 518 S.2d 416 (Fla. 2d DCA 1988) (citing Ford Motor Co. v Kikis, 401 So.2d 1341, 1342 (Fla.1981)). In attempting to arrive at the standard for review of an order granting a new trial, an examination of prior decisions reveals two differently worded tests.
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Dyes v. Spick, 91-1816
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