Maines v. Fox
| Decision Date | 03 May 2016 |
| Docket Number | 1D15–0739.,Nos. 1D14–5917,s. 1D14–5917 |
| Citation | 190 So.3d 1135 |
| Parties | Andrew MAINES and Kenneth Maines, Appellants, v. Marcia Drasko FOX, Appellee. |
| Court | Florida District Court of Appeals |
Caryn L. Bellus and Bretton C. Albrecht of Kubicki Draper, P.A., Miami, for Appellants.
C. Paul Brannon and W. Dennis Brannon of Brannon & Brannon, Ft. Walton Beach, and Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellee.
Appellants, defendants in the trial court, challenge a final judgment in a case which arose out of a motor vehicle accident for which liability was admitted, and the major point of contention was whether the accident caused appellee's injury. Appellants assert that the trial court erred in 1) admitting testimony regarding why appellant Andrew Maines ran the red light, causing the accident; 2) improperly limiting the testimony of appellants' expert concerning the specific causation of appellee's injury; and 3) awarding attorney's fees based on the rejections of appellee's October 8, 2013, proposals for settlement.
We find no error in allowing testimony concerning why appellant Andrew Maines ran the red light because under the circumstances of the case, the testimony was pertinent to Andrew's speed, which was relevant to whether the accident caused appellee's injury. We, therefore, affirm as to this issue without further comment.
As to the expert testimony, we determine the trial court abused its discretion in refusing to allow the expert biomechanical engineer, who was also an expert medical doctor, to render an opinion as to the specific causation of appellee's injury but find the error was harmless, because the expert was allowed through other testimony to convey substantial portions of his opinion to the jury.
As to the attorney's fees issue, we determine the offers of settlement were internally inconsistent and ambiguous, so the trial court erred in awarding attorney's fees based on appellants' rejections of the offers.
This case arose out of an automobile accident that occurred when appellant Andrew Maines ran a red light and hit two cars, one a vehicle driven by appellee, Marcia Fox. Appellee filed suit, claiming Andrew Maines was negligent in causing the accident and that his father, Kenneth Maines, was vicariously liable as the vehicle owner. Appellee claimed she was permanently injured and required neck surgery as a result of the accident. Appellants admitted liability but denied the accident caused appellee's injury. Both sides presented expert testimony concerning the causation of the injury and need for surgery, which will be more fully described later on in this opinion.
The jury returned a verdict finding appellee suffered a permanent injury and awarded her a total of $143,896.32. Appellee moved for an award of attorney's fees pursuant to section 768.79, Florida Statutes (2013), based on wrongful rejection of her previously filed settlement proposals. The trial court granted the motion.
Both sides presented expert testimony as to the cause of appellee's injury. Appellee presented the testimony of her treating chiropractor, Dr. Kelly–Dukes. Dr. Poelstra, who performed neck surgery on appellee, also testified. Both doctors opined the automobile accident was the cause of appellee's injury.
Notably, Dr. Poelstra explained to the jury that he had extensive expertise not only as an orthopedic surgeon but also as a biomedical engineer with specialized knowledge regarding the effect of external forces on the human spine. He opined that appellee suffered a permanent neck injury, a disc herniation, as a result of a traumatic event (meaning the accident), which caused her need for neck surgery and which would likely require a second surgery in the future. He further testified that such an injury could be caused by a minimal amount of external force or trauma.
He explained that because there is always a delay between the movement of a person's body and her head, a low-speed collision can cause a significant injury, “because the simple mass times a little bit of velocity, if it's only even five miles an hour is a tremendous force on the human body.” Although he later admitted that he did not analyze the forces in this accident, he further opined that even a five-mile-per-hour impact “can have a tremendous impact on the human body, simply because we're small, the car is big, so the kinetic energy on the body is huge.”
Appellants presented two expert witnesses, Dr. Keller, a medical doctor, and Dr. Bowles, a biomechanical engineer and medical doctor.
Dr. Keller testified that he did not believe the motor vehicle accident caused appellee's cervical injury; rather, he believed appellee's preexisting condition of degenerative disc disease was the cause. Dr. Keller relied on appellee's medical records as well as her account of the accident in formulating an opinion.
Dr. Bowles, a biomechanical engineer and medical doctor, planned to offer expert causation testimony in part based on a force analysis that he conducted using his expertise as both a biomechanical engineer and a medical doctor. His opinion was that the forces at play in the accident were too minimal to cause the specific injury suffered by appellee.
Appellee presented a challenge to the reliability of Dr. Bowles' planned causation testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), alleging that Dr. Bowles' method of using his force analysis results to come to specific medical causation conclusions was not reliable because medical doctors, when determining causation, do not normally rely on force analyses. Appellee alleged that by using his biomechanical background to testify as to specific medical causation, Dr. Bowles was creating a new type of expertise that had not been deemed reliable by the scientific community.
After holding a hearing on the Daubert challenge, the trial court found that Dr. Bowles improperly “bridged” the fields of biomechanical engineering and medicine by relying on his own force analysis to determine appellee's injury was not caused by the accident without proving the reliability of using force analysis calculations to determine specific causation. The trial court thus limited Dr. Bowles' testimony, preventing him from testifying as to his opinions regarding specific causation of this particular injury; the court, however, permitted Dr. Bowles to testify regarding his force calculations of the accident and his belief that the forces in effect during this particular accident would not have been severe enough generally to cause the injury alleged by appellee.
It is important to analyze specifically what testimony Dr. Bowles was allowed to present to the jury without objection and what was excluded. Specifically, Dr. Bowles informed the jury that part of his job as a biomechanical engineer and accident reconstructionist was to determine what specific forces were at work on the human body during an accident:
Dr. Bowles also testified that he was “prepared today to discuss the forces that would have been applied to a person in [appellee's] vehicle at the time of the accident. ” (Emphasis added).
Dr. Bowles also informed the jury of the specific forces at work in the accident and how those forces affected appellee's vehicle. Dr. Bowles testified that appellee's vehicle was hit by appellant Kenneth Maines' vehicle “with a force level that's between about seven thousand and thirteen thousand pounds.” He then specified how that force level would affect an occupant of appellee's vehicle:
Dr. Bowles next informed the jurors that a speed change rate of 2.3 Gs was miniscule, a force amount comparable to the forces people normally encounter doing day-to-day activities:
So when you corner a vehicle or when you step on the brake at a stoplight, you're usually seeing about point seven G. And then if you go over railroad tracks or if you ride public transportation where you're standing up and holding on to a pole and it—and the vehicle changes direction, the occupant or the person riding in the vehicle will experience an acceleration that's in this range, two-and-a-half Gs is not unusual. If you pay money to go to Six Flags or Disney, roller coasters will put [sic] about three-and-a-half Gs.
The jurors were also informed of the minimum force level required to cause a cervical disc injury like the one suffered by appellee, and that the minimum force level was “substantially higher energy than what we're talking about here”:
Well, in order to cause the disc injury, you have to push on it hard enough that you cause anatomical damage ... it usually takes a vertical drop. So an acceleration as in the range of about twelve Gs for the disc to begin to structurally fail or you have to have some sort of movement that is in a...
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