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Jennifer Schwartz v. Wal-Mart Stores, Inc., Case No. 5D13-2104 (5th DCA)

In Schwartz, the plaintiff sued Wal-Mart alleging that as a result of a Wal-Mart employee's negligence, she was struck in the back by an ornamental pumpkin and, as a result, injured. Wal-Mart admitted its employee committed a negligent act, but Wal-Mart contested causation and damages. At the end of trial, the jury returned a zero-damages verdict, finding that Wal-Mart was not the legal cause of the plaintiff's injuries. The court granted the plaintiff's motion for new trial as to only the issue of damages for initial medical evaluation sought by the plaintiff after the incident. The plaintiff appealed, arguing that the retrial on damages should be so limited, and Wal-Mart cross appealed arguing the court should not have granted a new trial. The Fifth DCA agreed with Wal-Mart.

On appeal, the plaintiff cited the general rule that even when a jury finds that a plaintiff was not injured as a result of the subject accident, the plaintiff is still entitled to recovers those expenses incurred for medical examination and diagnostic testing reasonably necessary to determine whether the incident caused injuries. The plaintiff argued that even though the jury found for Wal-Mart on causation, the failure to award damages for at least the cost of the initial medical examination was error because it was undisputed that the plaintiff sought medical care and treatment almost immediately after the incident. The Fifth DCA disagreed, however, finding that exceptions to the general rule exist, permitting a jury to return a zero-damages verdict despite medical expenses incurred for diagnostic testing, such as "when sufficient evidence is presented at trial regarding certain factors including but not limited to pre-existing injuries with extensive treatments, lack of candor with the treating physicians, video tapes that show actual physical capabilities, and expert medical opinions which conflict as to causation." The Fifth DCA found that Wal-Mart presented expert testimony suggesting that the impact could not have caused any injury. Thus, an exception to the general rule applied, and the trial court erred in granting a new trial on the issue of damages for the plaintiff's initial medical examination.

The Fifth DCA additionally ruled that the plaintiff's failure to object to the verdict form and jury instructions also precluded her requested relief. The Fifth DCA noted that question one of the agreed verdict form asked the jury to determine whether Wal-Mart's negligence was a legal cause of loss, injury or damage to the plaintiff, and the jury was further instructed that if it answered the first question no, it should proceed no further other than to date and sign the verdict form. The Fifth DCA found it notable that the plaintiff did not ask the court to include an additional paragraph on the verdict form whereby if the jury answered the first question no, then the jury would be asked to determine whether it was reasonable and necessary for the plaintiff to have incurred medical expenses for her initial diagnostic case and, if so, the amount of those expenses. The Fifth DCA also noted that the plaintiff did not move for directed verdict on the issue of recovery of the initial diagnostic bills, instead leaving the issue up to the jury. The Fifth DCA therefore ruled that the trial court should not have granted a new trial.

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