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Filing # 140546361 E-Filed 12/16/2021 04:58:54 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
GLENN MITCHELL,
Plaintiff, CASE NO.: 2014 CA 000792 AN
Vv.
LUZ GONZALEZ,
PROGRESSIVE SELECT INSURANCE COMPANY,
JOHN WESLEY ROBINSON, and
FLO TECH AUTOMATION ASSOCIATES, INC.
Defendants.
/
PLAINTIFF’S MOTION FOR NEW TRIAL; IN THE ALTERNATIVE, MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT; IN THE ALTERNATIVE.
MOTION FOR ADDITUR; MOTION FOR SETOFF TO PERSONAL INJURY
PROTECTION OFFSET; AND MOTION TO AWARD COSTS UNTIL THE DATE OF
LUZ GONZALEZ’S PROPOSAL FOR SETTLEMENT
Plaintiff, Glenn Mitchell, by and through undersigned counsel files this Motion for New
Trial; or in the alternative, Motion for Judgment Notwithstanding the Verdict; or in the alternative,
Motion for Additur; Motion for Setoff to Personal Injury Protection (hereinafter PIP) Offset, and
Motion to Award Costs until the date of Luz Gonzalez’s Proposal for Settlement, and as grounds
states as follows:
I. New Trial, Judgment Notwithstanding the Verdict, and Additur is appropriate.
1 On December 2, 2021, the Jury returned a verdict of no causation and no there was
no verdict for past medical expenses.
2 Only three witnesses were qualified to offer opinion testimony regarding causation
and damages — Dr. Chester Janecki, Dr. George Tyson, Dr. Paul Maluso.
3 The deposition of Dr. Janecki which was submitted into evidence to the jury
indicated as follows:
“So we diagnosed him with posttraumatic subacromial bursitis and tendinities of the right
shoulder...” Page 13; Line 9-11.
Q: Do you feel that there was anything that should have been tried by Physicians Group
doctors prior to him coming to you that was not tried? Page 30; line 9-12
A: No. I think that they did everything as usual, the usual therapy. He was also put on
some anti-inflammatory medicines. The usual and customary conservative case. Page 30; line 13-
16.
4. “Usually without any intervention whatsoever patients who have inflammation like
a bursitis or tendinitis anywhere, you usually will get better within about a six-week period of time.
That’s about the time for soft tissue healing to be complete. So anybody who is beyond that point,
then we have to intervene some way as physicians to try to enhance the healing process.” Page
46; line 13-20.
5 “[A]nybody who doesn’t respond within a six-week period of time is usually
someone who is going to need substantial intervention in terms of treatment.” Page 47, line 8-11.
6 All of Dr. Janecki’s opinion were stated to within a reasonable degree of medical
certainty. Page 35; line 22-25.
7 Dr. Tyson, another medical provider of Plaintiff, provided his expert opinions. This
was in the form of Dr. Tyson’s medical report of June 25, 2013 which was submitted into evidence.
Dr. Tyson’s aforementioned medical report opines that Plaintiff failed to resolve using
conservative measures and these modalities were utilized through May 28, 2013 and the sections
of the final narrative report read in conjunction with each other indicates the treatment was related
to the February 28, 2013 collision. Furthermore, the Physicans Group treatment records and bills
correspond with the causal relationship.
8 As for Defendant’s expert, Dr. Maluso, his opinion was as follows:
Q: And did Mr. Mitchell indicate whether his back pain increased after his accident of
2014? Page 41; line 17-18.
A.: He indicated that after the motor vehicle accident, he thought it was August or
September of 2014, that he reinjured his neck and his back. He described treatment at Physicians
Group. He says that his neck and lower back complaints after the accident were similar. He said
it has increased it and it’s a little bit more constant. Page 41; line 19-25.
Q: Do you have any opinion within a reasonable degree of medical probability as to
whether any treatment after June 25"" of 2013, when Mr. Mitchell was released from treatment by
Dr. Tyson is related to this accident? Page 42; line 1-5
A I would not relate any treatment after that date. Page 42; line 6-7 (emphasis added).
Q Do you believe that Mr. Mitchell had any injury to his neck as a result of the
February 28, 2013 accident? Page 45; line 22-24
A My opinion is that he would have a soft tissue sprain or strain to the cervical spine.
Page 45; line 22 — Page 46; line 1.
Q And do you have any opinion within a reasonable degree of medical probability as
to whether Mr. Mitchell required any additional treatment after June 25" of 2013 when he was
released from treatment by Dr. Tyson for his neck related to this accident? Page 47; 6-10.
A He would not require any further treatment. Page 47; line 11
9. Thus, Dr. Maluso opines the last medical treatment reasonable and related to this
collision was the date of Tyson’s report — June 25, 2013. Ergo, there is no disagreement as to any
of the evidence.
10. Asall the evidence presented is in agreement that treatment until June 25, 2013 was
reasonable. As such the Court should grant Plaintiff's motion for additur. The uncontested amount
from the medical bills in evidence appears to be $16,400.73.
ll. The test for a judgment notwithstanding the verdict is “whether the verdict is . . .
supported by competent, substantial evidence.” Speedway SuperAmerica, LLC v. Dupont, 933
So.2d 75, 79 (Fla. 5th DCA 2006); citing Irven v. Department of Health and Rehabilitativ
Services, 790 So.2d 945 (Fla. 2001); Russell v. KSL Hotel Corp., 887 So.2d 372 (Fla. 3d DCA
2004); Natson v. Eckerd Corp., Inc., 885 So.2d 945 (Fla. 4th DCA 2004); Fast Laundry II v. Gray,
861 So. 2d 81 (Fla. 3d DCA 2003); Jackson County Hospital Corp. v. Aldrich, 835 So.2d 318 (Fla.
Ist DCA 2002; Cecile Resort, Ltd. V. Hokanson, 729 So.2d 446, 447 (Fla. Sth DCA 1999).
12. Also, in Dungan v. Ford, 632 So.2d 159, 162 (Fla. 1st DCA 1994), the Court agreed
with the trial court “that although experts are permitted to disagree with opinions reached by other
experts, a lay person is entitled to reasonably rely on the judgment of a licensed expert and should
not be required to do some independent investigation beyond that.” In the instant matter, the
evidence supports the proposition that Glenn Mitchell relied upon his medical providers regarding
what was reasonable. During the jury instruction charging conference, Plaintiff requested Florida
Standard Jury Instruction 501.5(c), which was denied by the Court. As such, the jury was not
properly instructed regarding this loss by Mr. Mitchell and denied the opportunity to determine
the additional loss caused to Mr. Mitchell by the questioned medical care. As such, new trial is
appropriate, or in the alternative, judgment nothwithstanding the verdict, and/or additur.
13. In the instant case, no view of the evidence could support a verdict for the
Defendant nor could a jury disregard the reasonable and related past medical care.
Il. _If the Court choose to exercise its power to grant the Judgment Notwithstanding the
Verdict or Additure, then Setoff of the Plaintiff's PIP premium to the PIP Offset is
propriate.
14. The cost of obtaining PIP coverage must be considered and is a setoff to the PIP
offset in the instant matter. See McKenna v. Carlson, 771 So.2d 555, 558 (Fla. 5th DCA 2000).
15. In McKenna, the matter involved entitlement to attorney’s fees, and the McKenna
Court determined that the cost of obtaining PIP coverage was “implicated to the extent it would
allow a reduction from the setoffs for the plaintiff's cost of obtaining PIP coverage in determining
the amount of the ‘judgment obtained.”
16. In Forest v. Sutherland, 110 So.3d 525, 525-526 (Fla. 4th DCA 2013), which was
decided after McKenna, the Forest Court ruled that Florida Statute § 768.76(1) allowed a reduction
for obtaining PIP benefits when a verdict is reduced due to the PIP benefits paid. Thus, Forest
stands for the proposition that a setoff for the Plaintiff's PIP premium to the PIP Offset is
appropriate. In Matrisciani v. Garrison Prop. & Cas. Ins. Co., 298 So.3d 53, 58 (4th DCA 2020),
the Court ruled that it was error to not credit the Plaintiff for “past premium payments” (emphasis
added). Thus, the Court should have also awarded [the plaintiff] “a credit for the premiums
payments made on her policy.” Id. at 58 (emphasis added).
Ill. Plaintiff is entitled to Costs Until the Date of Defendant’s Proposal for Settlement.
17. Florida Stat. § 57.041(1) (2021) applies to a “party recovering judgment shall
recover all his or her legal costs and charges which shall be included in the judgment.” Plaintiff
submits that should the Court grant the Plaintff's Motion for Additur, the aforementioned statute
would apply until the filing of Defendant’s Proposal for Settlement. “[Florida Stat. § 57.041(1)]
expressly demands that the party recovering judgment be awarded costs. This unambiguous
language need not be construed.” City of Boca Raton v. Basso, 242 So.3d 1141, 1144 (4th DCA
2018).
18. Further argument to all sections above to be provided ore tenus.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the forgoing has been furnished via
email and the E-Filing portal by Electronic Mail to William B. Bracken, Jr., Esq. of Bracken, P.A.,
brackenpa@pbrackenfirm.com
and leeann@brackenfirm.com, this [& day of December,
2021.
wrence J. Obin squire
Florida Bar. No.; 42751
Charles M. Laycock, Jr., Esquire
Florida Bar No.: 528781
The Brooks Law Group, P. A.
123 First Street North
Winter Haven, FL 33881
Charle: brookslawgroup.com
Rebecca@brookslawgroup.com
Tel: (863) 299-1962
Fax: (863) 299-8890
ATTORNEYS FOR PLAINTIFF
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Filing # 140546361 E-Filed 12/16/2021 04:58:54 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA GLENN MITCHELL, Plaintiff, CASE NO.: 2014 CA 000792 AN Vv. LUZ GONZALEZ, PROGRESSIVE SELECT INSURANCE COMPANY, JOHN WESLEY ROBINSON, and FLO TECH AUTOMATION ASSOCIATES, INC. Defendants. / PLAINTIFF’S MOTION FOR NEW TRIAL; IN THE ALTERNATIVE, MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT; IN THE ALTERNATIVE. MOTION FOR ADDITUR; MOTION FOR SETOFF TO PERSONAL INJURY PROTECTION OFFSET; AND MOTION TO AWARD COSTS UNTIL THE DATE OF LUZ GONZALEZ’S PROPOSAL FOR SETTLEMENT Plaintiff, Glenn Mitchell, by and through undersigned counsel files this Motion for New Trial; or in the alternative, Motion for Judgment Notwithstanding the Verdict; or in the alternative, Motion for Additur; Motion for Setoff to Personal Injury Protection (hereinafter PIP) Offset, and Motion to Award Costs until the date of Luz Gonzalez’s Proposal for Settlement, and as grounds states as follows: I. New Trial, Judgment Notwithstanding the Verdict, and Additur is appropriate. 1 On December 2, 2021, the Jury returned a verdict of no causation and no there was no verdict for past medical expenses. 2 Only three witnesses were qualified to offer opinion testimony regarding causation and damages — Dr. Chester Janecki, Dr. George Tyson, Dr. Paul Maluso. 3 The deposition of Dr. Janecki which was submitted into evidence to the jury indicated as follows: “So we diagnosed him with posttraumatic subacromial bursitis and tendinities of the right shoulder...” Page 13; Line 9-11. Q: Do you feel that there was anything that should have been tried by Physicians Group doctors prior to him coming to you that was not tried? Page 30; line 9-12 A: No. I think that they did everything as usual, the usual therapy. He was also put on some anti-inflammatory medicines. The usual and customary conservative case. Page 30; line 13- 16. 4. “Usually without any intervention whatsoever patients who have inflammation like a bursitis or tendinitis anywhere, you usually will get better within about a six-week period of time. That’s about the time for soft tissue healing to be complete. So anybody who is beyond that point, then we have to intervene some way as physicians to try to enhance the healing process.” Page 46; line 13-20. 5 “[A]nybody who doesn’t respond within a six-week period of time is usually someone who is going to need substantial intervention in terms of treatment.” Page 47, line 8-11. 6 All of Dr. Janecki’s opinion were stated to within a reasonable degree of medical certainty. Page 35; line 22-25. 7 Dr. Tyson, another medical provider of Plaintiff, provided his expert opinions. This was in the form of Dr. Tyson’s medical report of June 25, 2013 which was submitted into evidence. Dr. Tyson’s aforementioned medical report opines that Plaintiff failed to resolve using conservative measures and these modalities were utilized through May 28, 2013 and the sections of the final narrative report read in conjunction with each other indicates the treatment was related to the February 28, 2013 collision. Furthermore, the Physicans Group treatment records and bills correspond with the causal relationship. 8 As for Defendant’s expert, Dr. Maluso, his opinion was as follows: Q: And did Mr. Mitchell indicate whether his back pain increased after his accident of 2014? Page 41; line 17-18. A.: He indicated that after the motor vehicle accident, he thought it was August or September of 2014, that he reinjured his neck and his back. He described treatment at Physicians Group. He says that his neck and lower back complaints after the accident were similar. He said it has increased it and it’s a little bit more constant. Page 41; line 19-25. Q: Do you have any opinion within a reasonable degree of medical probability as to whether any treatment after June 25"" of 2013, when Mr. Mitchell was released from treatment by Dr. Tyson is related to this accident? Page 42; line 1-5 A I would not relate any treatment after that date. Page 42; line 6-7 (emphasis added). Q Do you believe that Mr. Mitchell had any injury to his neck as a result of the February 28, 2013 accident? Page 45; line 22-24 A My opinion is that he would have a soft tissue sprain or strain to the cervical spine. Page 45; line 22 — Page 46; line 1. Q And do you have any opinion within a reasonable degree of medical probability as to whether Mr. Mitchell required any additional treatment after June 25" of 2013 when he was released from treatment by Dr. Tyson for his neck related to this accident? Page 47; 6-10. A He would not require any further treatment. Page 47; line 11 9. Thus, Dr. Maluso opines the last medical treatment reasonable and related to this collision was the date of Tyson’s report — June 25, 2013. Ergo, there is no disagreement as to any of the evidence. 10. Asall the evidence presented is in agreement that treatment until June 25, 2013 was reasonable. As such the Court should grant Plaintiff's motion for additur. The uncontested amount from the medical bills in evidence appears to be $16,400.73. ll. The test for a judgment notwithstanding the verdict is “whether the verdict is . . . supported by competent, substantial evidence.” Speedway SuperAmerica, LLC v. Dupont, 933 So.2d 75, 79 (Fla. 5th DCA 2006); citing Irven v. Department of Health and Rehabilitativ Services, 790 So.2d 945 (Fla. 2001); Russell v. KSL Hotel Corp., 887 So.2d 372 (Fla. 3d DCA 2004); Natson v. Eckerd Corp., Inc., 885 So.2d 945 (Fla. 4th DCA 2004); Fast Laundry II v. Gray, 861 So. 2d 81 (Fla. 3d DCA 2003); Jackson County Hospital Corp. v. Aldrich, 835 So.2d 318 (Fla. Ist DCA 2002; Cecile Resort, Ltd. V. Hokanson, 729 So.2d 446, 447 (Fla. Sth DCA 1999). 12. Also, in Dungan v. Ford, 632 So.2d 159, 162 (Fla. 1st DCA 1994), the Court agreed with the trial court “that although experts are permitted to disagree with opinions reached by other experts, a lay person is entitled to reasonably rely on the judgment of a licensed expert and should not be required to do some independent investigation beyond that.” In the instant matter, the evidence supports the proposition that Glenn Mitchell relied upon his medical providers regarding what was reasonable. During the jury instruction charging conference, Plaintiff requested Florida Standard Jury Instruction 501.5(c), which was denied by the Court. As such, the jury was not properly instructed regarding this loss by Mr. Mitchell and denied the opportunity to determine the additional loss caused to Mr. Mitchell by the questioned medical care. As such, new trial is appropriate, or in the alternative, judgment nothwithstanding the verdict, and/or additur. 13. In the instant case, no view of the evidence could support a verdict for the Defendant nor could a jury disregard the reasonable and related past medical care. Il. _If the Court choose to exercise its power to grant the Judgment Notwithstanding the Verdict or Additure, then Setoff of the Plaintiff's PIP premium to the PIP Offset is propriate. 14. The cost of obtaining PIP coverage must be considered and is a setoff to the PIP offset in the instant matter. See McKenna v. Carlson, 771 So.2d 555, 558 (Fla. 5th DCA 2000). 15. In McKenna, the matter involved entitlement to attorney’s fees, and the McKenna Court determined that the cost of obtaining PIP coverage was “implicated to the extent it would allow a reduction from the setoffs for the plaintiff's cost of obtaining PIP coverage in determining the amount of the ‘judgment obtained.” 16. In Forest v. Sutherland, 110 So.3d 525, 525-526 (Fla. 4th DCA 2013), which was decided after McKenna, the Forest Court ruled that Florida Statute § 768.76(1) allowed a reduction for obtaining PIP benefits when a verdict is reduced due to the PIP benefits paid. Thus, Forest stands for the proposition that a setoff for the Plaintiff's PIP premium to the PIP Offset is appropriate. In Matrisciani v. Garrison Prop. & Cas. Ins. Co., 298 So.3d 53, 58 (4th DCA 2020), the Court ruled that it was error to not credit the Plaintiff for “past premium payments” (emphasis added). Thus, the Court should have also awarded [the plaintiff] “a credit for the premiums payments made on her policy.” Id. at 58 (emphasis added). Ill. Plaintiff is entitled to Costs Until the Date of Defendant’s Proposal for Settlement. 17. Florida Stat. § 57.041(1) (2021) applies to a “party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.” Plaintiff submits that should the Court grant the Plaintff's Motion for Additur, the aforementioned statute would apply until the filing of Defendant’s Proposal for Settlement. “[Florida Stat. § 57.041(1)] expressly demands that the party recovering judgment be awarded costs. This unambiguous language need not be construed.” City of Boca Raton v. Basso, 242 So.3d 1141, 1144 (4th DCA 2018). 18. Further argument to all sections above to be provided ore tenus. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing has been furnished via email and the E-Filing portal by Electronic Mail to William B. Bracken, Jr., Esq. of Bracken, P.A., brackenpa@pbrackenfirm.com and leeann@brackenfirm.com, this [& day of December, 2021. wrence J. Obin squire Florida Bar. No.; 42751 Charles M. Laycock, Jr., Esquire Florida Bar No.: 528781 The Brooks Law Group, P. A. 123 First Street North Winter Haven, FL 33881 Charle: brookslawgroup.com Rebecca@brookslawgroup.com Tel: (863) 299-1962 Fax: (863) 299-8890 ATTORNEYS FOR PLAINTIFF