In Hurtado v. DeSouza, Fla: Dist. Court of Appeals, 4th Dist. 2015, a jury awarded $350,000 for the pain & suffering component of the case a for a C4-C5 herniated disc.
This not my case. However, I have settled many cases where my client claimed that a Florida car accident caused his or her herniated disc.
The car crash happened in 2012.
The injured man was a 47-year-old male Palm Beach airline pilot who was rear ended while waiting for a traffic light. At the time of the collision, his head was turned to the right looking at his wife and son.
He instantly felt pain in his neck. His vehicle did not “look like it was damaged.” The “bumper was in a little bit from the trunk, but that was about it.”
When he got back in his vehicle, he told his wife, “I think I’m hurt.” He felt a slight tingling and numbness in his fingers and pain radiating down his left shoulder and arm.
Plaintiff was awarded $200,000 for past pain and suffering and $ 150,000 for future pain and suffering. The plaintiff’s vehicle sustained $340 in damage and he claimed he herniated a disc from the accident.
He treated at the hospital and was let go the same day. He ended up having three epidural steroid injections during his 4-month course of treatment.
The Plaintiff said that he could no longer perform martial arts. He said when he had pain, his blood pressure would rise, which would make it dangerous for him to fly as a commercial pilot.
He did not take his physical (required by the FAA) and was not allowed to fly for almost 2 years. His orthopedic doctor said that he would need a neck fusion. He said he would begin needing medical treatment when he is 55.
The defendant admitted liability shortly before trial, but argued causation and damages. The defense hotly contested the testimony concerning the accident victim’s physical complaints and injuries and whether they existed before the accident.
They also contested causation. Testimony revealed that the plaintiff had failed to advise the hospital or his new treating doctor that he had complained of neck pain and headaches for a year preceding the accident and for which he sought medical treatment.
The plaintiff’s new treating doctors diagnosed him with a herniated disc caused by the accident, which required significant treatment over the course of a lifetime.
The defense experts found no permanent injury, but a temporary aggravation of a pre-existing injury. They did not believe any further treatment was necessary.
The jury found the plaintiff sustained a permanent injury, the defendant was liable, and awarded $1,002,238.17 in compensation.
The defendant asserted an affirmative defense that any verdict would be set-off for unemployment compensation benefits that the victim received. The appeals court ruled that statements made by the injured person about his financial hardship that he and his wife suffered as a result of the accident is not harmless error.
The court cited Special v. West Boca Medical Center, 39 Fla. L. Weekly S676 (Fla. Nov. 13, 2014). The appeals court ruled that an accident victim cannot discuss mental anguish suffered due to the defendant’s desire to leave the accident scene, failure to apologize, and failure to admit liability until just prior to trial.
The appeals court stated that Florida has a long-standing rule that “no reference should be made to the wealth or poverty of a party, nor should the financial status of one party be contrasted with the other’s.” Batlemento v. Dove Fountain, Inc., 593 So. 2d 234, 241 (Fla. 5th DCA 1991).
Courts are very adamant about this rule because jurors have a tendency to favor the poor as against the rich, especially when provoked by inflammatory evidence. Sossa v. Newman, 647 So. 2d 1018, 1019-20 (Fla. 4th DCA 1994).
The appeals court ruled that an injured person or his attorney cannot mention in trial that he lost his home in foreclosure and was unable to seek medical treatment because there was no health insurance. The accident victim and his wife testified to their financial situation, including the house foreclosure and general lack of money, preventing the man from seeking medical treatment.
The appeals court noted that:
- This was a minor auto collision.
- Plaintiff had pre-existing headaches, neck pain, numbness, and tingling.
The appeals court said that despite these things, the jury awarded the injured man more than a million dollars. The appeals court held that “because unemployment compensation benefits are not specifically listed in section Florida Statute 768.76 and cannot be interpreted as a collateral source under any of its provisions, unemployment benefits should not be set off from the final judgment.
The appeals court reversed the trial court and ordered a new trial.
My thoughts: A C4-C5 herniated disc is in the neck. This verdict is impressive given that the property damage to the Plaintiff’s car was so minor and that his treatment was so short (only 4 months). The jury must have liked the Plaintiff’s orthopedic doctor and believed him.
I say because the defense’s orthopedic doctor said that the herniated disc was not caused by the accident. He also said it was not a permanent injury. The jury believed that the plaintiff was really was injured because the jury awarded the plaintiff $325,000 in lost wages.
That obviously means that the jury felt that the Plaintiff was justified in missing work. Another thing that probably greatly helped the case was that the Plaintiff was a commercial pilot.
Pilots are generally is liked by the public and make good Plaintiffs. This case was in Palm Beach County, which is a great venue for Plaintiffs, which also may have helped the injured person get a great verdict.
The defense attorneys were from Miami, Florida. The injured person’s lawyer was from Deerfield Beach, Florida.
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