Philon v. Reid
| Decision Date | 10 July 1992 |
| Docket Number | No. 91-02260,91-02260 |
| Citation | 602 So.2d 648 |
| Parties | Dorothy PHILON and Willie C. Philon, Appellants/Cross-Appellees, v. Rohan R. REID, Appellee/Cross-Appellant. 602 So.2d 648, 17 Fla. L. Week. D1679 |
| Court | Florida District Court of Appeals |
Kendall A. Almerico of Berkowitz & Almerico, Tampa, for appellants/cross-appellees.
John N. Jenkins and William E. Hennen of Shofi, Smith, Hennen, Smith, Jenkins, Stanley & Gramovot, P.A., Tampa, for appellee/cross-appellant.
Dorothy and Willie Philon, the trial court plaintiffs in a personal injury case arising out of an automobile accident, appeal the order granting the defendant below, Rohan Reid, a new trial on the issue of damages alone. The order for a new trial was based upon the trial court's finding that the jury's damage verdict was "clearly excessive." Because the trial judge neither stated reasons for finding the verdict "clearly excessive," nor did he first order a remittitur pursuant to the mandate of section 768.043(1), Florida Statutes (1989), we reverse and remand with instructions. In doing so, we also reject Mr. Reid's issues on cross-appeal as being without merit.
Mrs. Philon was a fifty-four-year-old office cleaner who was injured when her car was rear-ended by an automobile owned and driven by Mr. Reid. Mr. Reid admitted sole liability for the accident leaving only the issues of permanency of injury and damages for the jury's consideration.
The evidence showed that Mrs. Philon was first treated by an emergency room physician who noted that she suffered from severe pain in her cervical and lumbar spine and severe muscle spasm and pain on motion. X-rays showed straightening of her cervical spine. He placed her in a cervical collar, gave her pain medications and muscle relaxants and released her to follow up treatment with a physician of her choice.
Her follow-up physician, Dr. Michael Shreeve, testified that she initially suffered from serious neck pain, headaches, low back problems and pain radiating into her right leg. Physical examination and x-rays revealed numerous abnormalities resulting from the automobile accident. Although his treatment relieved some of her pain, she was left with a permanent neck injury due to damage to her C-3 and C-5 vertebrae. He testified that her permanent injuries would require further treatment for an undetermined time.
Dr. A.E. Warner, III examined Mrs. Philon at the request of her automobile insurance carrier. He agreed with Dr. Shreeve that the accident caused Mrs. Philon to suffer a permanent injury due to retrolisthesis at C-3/C-5 in her cervical spine. He also testified that she would need future treatment for an undetermined time and would be permanently restricted from lifting more than twenty-five pounds.
The record also revealed evidence that the automobile accident severely affected Mrs. Philon's life and marriage. Prior to the injury, she had no neck, back or leg problems. As a result of the accident, there was evidence that she is no longer able to ride a bicycle or engage in fishing, a favorite pastime, without neck or back pain. She has been forced because of economic necessity to continue her work as an office cleaner despite the often severe pain. Her right leg is often very painful and also is often completely numb. She was forced to give up being a church usher due to her inability to stand or walk for long periods. She has difficulty sleeping at night due to pain. Her demeanor and personality also changed dramatically as a result of her constant pain. Her life is disrupted by the need for frequent visits to her physician and the need for continual use of pain medication.
An employer testified that she was "one of the strongest ladies [he] ever met" prior to the accident, but the accident had seriously weakened her and he frequently observed her in serious pain. He continued to employ Mrs. Philon despite her reduced ability to work and despite her continual pain.
Mrs. Philon's husband, Willie C. Philon, testified that the accident had seriously affected his wife's life and their marriage. He was forced to do house and yard work that Mrs. Philon had done before the accident. Despite his wife's stoic personality, her pain was obvious and had a tremendous effect on the couple's marital relations.
The defense, having admitted liability for the accident, called no witnesses regarding the collision. Defense counsel agreed that the collision was not a "fender bender," and was severe enough to bend the back of Mrs. Philon's car. The defense called only one witness, Dr. Lawrence Cohen, who testified that Mrs. Philon had not suffered a permanent injury in the accident. On cross-examination, he testified that following his single examination of Mrs. Philon he reached a diagnosis of chronic neck and back pain. He also testified that he discovered a diminishment of sensory perception in the top of her right foot, a loss of range of motion in her low back, pain in the right sacral region of her low back, pain on performing deep knee bends, pain in the superscript area of her neck on the right, and pain upon motion in her neck. He testified that he performs an average of ten independent medical examinations for defense attorneys per week charging an average of $790.00 per examination.
Mrs. Philon presented evidence that her past medical bills were $3,101.71; the jury awarded her that amount. She presented no evidence concerning economic or loss of earnings damages and requested and received no such award of damages. The medical testimony concerning future medical care was nonspecific due to what was described as Mrs. Philon's deteriorating condition, but it was estimated that she should receive treatment from eight to ten times a year to once or twice a month for the rest of her life and that in today's dollars such treatments would cost approximately $30.00 each. Mrs. Philon's counsel suggested an award of $8,928.00 for future medical expenses and the jury awarded her $35,000.00. Her counsel suggested $9,460.00 for past pain and suffering damages and the jury awarded zero damages. Mrs. Philon's counsel suggested $22,630.00 for future pain and suffering damages and the jury awarded $100,000.00. Counsel requested $5,000.00 in loss of consortium damages for Mrs. Philon's husband, Willie C. Philon, and the jury awarded him $10,000.00.
The defendant/appellee, Reid, filed a motion for new trial which the trial court granted on the issue of damages alone. Without making any supporting findings, the court merely stated that "[t]he verdict in this case is clearly excessive and should be set aside and a new trial granted on the issue of damages."
The order granting a new trial on damages upon solely unsupported findings that the verdict is "clearly excessive" violates the requirements of Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). An order directing a new trial must give reasons for doing so which refer to the record. The record in this case is not voluminous. We have carefully examined the entire record and are convinced by our independent review that...
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