White v. Westlund

624 So. 2d 1148, 1993 WL 349937
CourtDistrict Court of Appeal of Florida
DecidedSeptember 15, 1993
Docket92-2314
StatusPublished
Cited by28 cases

This text of 624 So. 2d 1148 (White v. Westlund) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. Westlund, 624 So. 2d 1148, 1993 WL 349937 (Fla. Ct. App. 1993).

Opinion

624 So.2d 1148 (1993)

Jeffrey James WHITE, Appellant,
v.
George WESTLUND and Delores Westlund, His Wife, Appellees.

No. 92-2314.

District Court of Appeal of Florida, Fourth District.

September 15, 1993.
Rehearing Denied October 29, 1993.

*1149 Michael B. Davis of Paxton, Crow, Bragg, Smith & Keyser P.A., West Palm Beach, for appellant.

Dewey H. Varner and Allen R. Seaman of Varner Stafford Cole & Seaman, Lake Worth, for appellees.

*1150 PER CURIAM.

Jeffrey James White, the defendant in the trial court, appeals a final judgment entered on a jury verdict in favor of George and Delores Westlund arising out of an automobile accident. We affirm.

EVIDENCE OF FUTURE MEDICAL CARE

White contends the trial court erroneously allowed expert testimony regarding the need for the following future operative procedures that may be required by George Westlund: (1) ankle fusion; (2) knee replacement; and (3) leg amputation. White maintains such testimony should have been stricken because it was not expressed in terms of a reasonable certainty.

Specifically, White takes the position that, unless an expert can testify that the need for a future operative procedure is reasonably certain, that testimony is inadmissible. In support, White cites a line of decisions holding that expert testimony which is couched in terms of a "possibility" that the plaintiff will need future surgery should not have been admitted at trial because such testimony is speculative and therefore not probative of future damages. See Gup v. Cook, 549 So.2d 1081, 1084-85 (Fla. 1st DCA 1989) (doctor's testimony that victim may incur future medical expenses speculative and therefore not probative of victim's future damages), quashed on other grounds, 585 So.2d 926 (Fla. 1991); 3-M Corp.-McGhan Medical Reports Div. v. Brown, 475 So.2d 994, 998 (Fla. 1st DCA 1985) (doctor's 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 plaintiff's need for future medical care that was "merely couched in terms of `possibilities,' which are simply not probative of his future damages."). In response, the Westlunds contend there is no requirement that each opinion on future medical procedures be expressed in terms of "reasonable medical certainty."

Long ago, our supreme court established that only those future medical expenses "reasonably certain" to be incurred are recoverable as damages in a personal injury action. Loftin v. Wilson, 67 So.2d 185, 188 (Fla. 1953). This standard is reflected in Florida Standard Jury Instructions (Civil) 6.1(a) and 6.2(c).[1] From this, it follows that a recovery of future medical expenses cannot be grounded on the mere "possibility" that certain treatment "might" be obtained in the future. See 2 Damages in Tort Actions § 9.55[1], at 9-45 (1986).

As noted above, several decisions out of the first district lean toward the view that testimony from an expert that future surgery is "possible" or "might" be required is inadmissible because it is merely speculation and thus not probative of future damages. Gup; 3-M Corp.; Crosby. However, a close examination of those cases indicates that the court's primary concern was that there was no other evidence from which a jury could infer that the need for such procedure was reasonably certain.

Other Florida courts, including the supreme court and this court, have held generally that, where there is sufficient evidence from which a jury could infer a need for future medical treatment with reasonable certainty, an award of future medical expenses *1151 is proper. See Sullivan v. Price, 386 So.2d 241, 244 (Fla. 1980) (instruction on future damages appropriate, despite absence of expert medical testimony, where there was uncontradicted evidence of the nature of plaintiff's injury, its duration, and lack of recovery at trial, so that the jury could conclude with reasonable certainty that the consequences of the injury would continue in the future); Chess v. Wright, 602 So.2d 673, 673-74 (Fla. 4th DCA 1992) (where doctors phrased testimony in terms of "Probably so," "I think that," and "it's very likely that" plaintiff's delay in seeking surgery contributed to her subsequent condition, such testimony was sufficient to create a jury question as to plaintiff's comparative negligence); DeAlmeida v. Graham, 524 So.2d 666, 668 (Fla. 4th DCA) (although no direct evidence on claim for future medical care, where radiologist testified adhesions are permanent, evidence was sufficient from which jury could infer need for such care), rev. denied, 519 So.2d 988 (Fla. 1987); National Car Rental Sys., Inc. v. Holland, 269 So.2d 407, 411 (Fla. 4th DCA 1972) (same where treating physician testified, in his opinion, plaintiff would need care for remainder of his life), rev. denied, 273 So.2d 768 (Fla. 1973).

In Vitt v. Ryder Truck Rentals, Inc., 340 So.2d 962 (Fla. 3d DCA 1976) the third district rejected a contention that, in order to be admissible, medical testimony concerning the need for future operative procedures must be shown within a reasonable medical certainty. The court upheld the admission of testimony by two doctors concerning possible future surgery on the grounds that, although the probative value of such evidence is not great, it should still go to the jury to aid in placing a dollar figure on the plaintiff's condition. See also A Quest for Reasonable Medical Certainty in Florida, 30 Fla.B.J. 327 (even though future damages ultimately must be proven to a reasonable certainty, "this does not mean that every link in the chain of evidence must be so proven. Medical evidence is but an aid to the trier of fact; it may be only one factor to be considered — only one link in the chain — in determining the ultimate questions involved... .").

Implicit in the authorities recited above is the view that whatever qualification is placed on the opinion by the expert (i.e., surgery is possible or likely) goes to the weight of the opinion, and not its admissibility. Therefore, we agree that a medical expert may testify that future medical procedures are "possible" or "likely," and need not phrase an opinion in terms of such surgery or treatment being "reasonably necessary." See Vitt v. Ryder Truck Rentals, Inc., Consistent with instructions 6.1(a) and 6.2(c), whether the plaintiff has satisfied his burden of proving that such future operative procedures are reasonably necessary is an issue for the jury to decide so long as there is competent evidence upon which the issue may be submitted to the jury. Therefore, we find no error here in the admission of the evidence in question.

EVIDENCE ON LIABILITY ISSUE

Next, White seeks reversal on the grounds that the trial court erred in admitting evidence regarding the circumstances surrounding the accident that caused Mr. Westlund's injuries; in particular, he cites evidence that he was driving in reverse, at a high rate of speed, in a residential neighborhood, when he struck Westlund. He claims that, because he admitted liability, this evidence was logically irrelevant and highly prejudicial.[2]

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Bluebook (online)
624 So. 2d 1148, 1993 WL 349937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-westlund-fladistctapp-1993.