Florida’s Third District Court of Appeal on September 5, 2018, entered a PCA (per curiam affirmance) of the trial court’s order. That court on October 17, 2018, denied Defendant’s Motion for entry of an option making the PCA final. The verdict stands, and the insurance company was required to pay the verdict amount plus post judgment interest for a total of $5,087,699.93

Hickey said:

This may not be the largest verdict in the world. But it is the largest verdict in the world for an 89-year-old woman who was involved in a car crash and died 4 1/2 years later of unrelated causes. The case then became a “survivor action” which is for the pain and suffering of a woman who never set foot in the courtroom and whose deposition was not taken. She was brought to life in the courtroom through the photos of Maria “the energizer bunny” before the crash, the medical records, and the testimony of Maria’s daughter and granddaughter. I am proud of the result and happy for my clients.

Judge Michael Hanzman’s 41 Page order denying defendant’s post-trial motions for remittitur (asking the judge to reduce the verdict) and for new trial (asking for a do-over) said:

In assessing whether a particular verdict is contrary to the manifest weight of the evidence, excessive “or both,” Van, 122 So. 3d at 252, courts also recognize that the “standards” to be applied “stand somewhat in tension” and, as a result, “often call for delicate decisions…” Rety, 546 So. 2d at 419. This is particularly so in cases – such as this – involving only non-economic “pain and suffering” damages which are “at best difficult to measure,” Copley v. BAX Glob., Inc. 97 F. Supp. 2d 1164, 1171 (S.D. Fla. 2000), and which call for an inherently imprecise and subjective determination generally left to “the jury’s discretion.” Bould v. Touchette, 349 So. 2d at 1184-85. See also, Sproule v. Nelson, 81 So. 2d 478, 481 (Fla. 1955) (“[t]here is an element of speculation in most personal injury verdicts, but this is a matter for jury discretion”). As one court aptly noted, deciding an amount of damages to award for pain and suffering is an “attempt to measure that which is immeasurable…” Food Fair Stores, Inc. v. Morgan, 338 So. 2d 89, 92 (Fla. 2d DCA 1976). For this reason a jury’s award of such damages should be given even greater deference. See, e.g. Berger v. Philip Morris USA, Inc., 3:09 – CV-14157, 2016 WL 2620134, fn. 2 (M.D. Fla. May 5, 2016) (“where damages for pain and suffering are involved” court should be “deferential to ‘the enlightened conscience of the jury’ because these kinds of damages are ‘even further removed from exact calculation and certain measurement.’”); Republic Services of Florida, L.P. v. Poucher, 851 So. 2d 866 (Fla. 1st DCA 2003) (a pain and suffering verdict is “clothed with a presumption of regularity and is not to be disturbed if supported by the evidence”); Tobias v. Osorio, 681 So. 2d 905 (Fla. 4th DCA 1996) (absent a verdict so excessive as to shock the judicial conscience the amount of damages rests “solely within the jury’s sound discretion, and the jury’s decision must be given great credence”).

In evaluating whether the $4.5 million verdict in this case is “excessive, against the manifest weight of the evidence, or both,” Stucky, 749. So. 2d at 498, the record must undoubtedly be “viewed in a light most favorable to the prevailing party.” Smith, 179 So. 2d at 241.

…also ordered a brain MRI with DTI (diffusion tensor imaging) –a test performed by Board Certified Neuro Radiologist Dr. Andrew Walker. That test also showed damage to the brain caused by trauma, reflecting changes “consistent with a moderate or severe traumatic brain injury.

But at the end of the day the Court concludes that this verdict: (a) is no doubt surprising and more –indeed far more –than the “Court itself” would have awarded; (b) clearly raises a “judicial eyebrow”; and (c) without question flirts with the very upper limit of the reasonable range within which the jury was entitled to operate. It is not, however, one that “shocks the judicial conscience,” or which can be fairly described as a “haywire” or “runaway” award. As a result, the jury’s discretionary verdict –which is “clothed with a presumption of regularity,” is entitled to great deference and will not be second guessed or meddled with by the Court.

The trial court allowed all the Plaintiff’s counsel to disclose to the jury the total amount billed by the hospital. In addressing the Defendant’s argument that that was an error, the court said:

It takes no citation of authority but rather only simple common sense, to conclude that the amount of medical treatment needed as a result of a trauma is probative –though obviously not dispositive –on the question of pain and suffering. Generally speaking, a person who undergoes a substantial amount of medical treatment (i.e., multiple surgeries, rehab, prescription medications, etc…) is more likely to experience severe “pain and suffering” than someone who walks away from an accident needing only minor care.

But this court rejects the notion that the amount of an injured plaintiff’s actual medical bills is not “relevant” or “in any way indicative” of an individual’s pain and suffering, as well as the contention that such evidence should be excluded because any probative value it may have is substantially outweighed by the danger of unfair prejudice. Motion, p. 25 citing LaBar ex rel. LaBar v. McDonald, CIV. A. 10-1108, 2012 WL 252797 at fn. 2 (E.D. Pa. Jan. 27, 2012); Freeman v. Pollo Operations, Inc., 2014 WL 1355456 (Fla. Cir. Ct.).

The Court also notes Defendant’s hypocrisy in advancing this argument given that its motion for remittitur is based, in large part, on the fact that the amount awarded for “pain and suffering” is 28 times that of Maria’s total medical expenses. So according to Defendant, the amount of medical expenses is highly relevant when it supports a request for remittitur, but irrelevant if used to support the verdict.

In conclusion, about the amount of the verdict, the court said:

One of the many virtues of our constitution and legal system is the province of the fact-finder to synthesize and weight [sic] all of the evidence and exercise its discretion in deciding the amount of damages supported by that evidence. See, e.g., Oakes v. Pittsburgh Corning Corp., 546 So. 2d at 429 (it is for the jury to determine “how much is enough… for the damages that have been demonstrated and described in the courtroom”). The jury, as the collective conscience of the community, fulfilled its constitutional charge and attentively listened to all the evidence and –in the exercise of its discretion –no doubt issued an extremely generous award. But this Court does not find its verdict “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which” it was permitted to operate, Bould, supra, or one that can be fairly characterized as a “haywire” or “runaway” award.

$4.5 million verdict in car crash “survivor action.”

Miami, FL- John H. (Jack) Hickey with Hickey Law Firm in Miami, FL, received a $4.5 million jury verdict on behalf of their client the personal representative of the Estate of Maria Deposada. The verdict was reached in Miami-Dade County Florida Circuit Court last Friday night, September 16, 2016. This verdict is completely supported by the overwhelming objective and subjective evidence in the record.

This case arose out of a car crash. It happened on July 8, 2008. An intern for Pernod Ricard, USA LLC, a subsidiary of Pernod Ricard (Pernod), the multinational liquor conglomerate, drove a Ford Taurus leased by Pernod and ran a red light in midtown Miami. The Ford crashed broadside into another car, a 3 series BMW, in which 89 year old Maria Deposada was a front seat passenger. Deposada filed suit for her personal injuries but died of unrelated causes 4 ½ years after the car crash. The case was under appeal. On September 5, 2018, the court ruled in favor of the plaintiff.

*Verdict: $4.5 Million + interest on appeal= $5,087,699.93