Kevin Dolan v. Jonathan Negron

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
KEVIN DOLAN,
Appellant/Cross-Appellee,
v.
JONATHAN NEGRON,
Appellee/Cross-Appellant.
No. 4D2024-1528
[April 15, 2026]
Appeal and cross-appeal from the Circuit Court for the Nineteenth
Judicial Circuit, St. Lucie County; Brett Michael Waronicki, Judge; L.T.
Case No. 562021CA000009AXXXHC.
Warren Kwavnick of The Law Office of Warren B. Kwavnick, PLLC,
Pembroke Pines, for appellant/cross-appellee.
Andrew A. Harris and Grace Mackey Streicher of Harris Appeals, P.A.,
Palm Beach Gardens, and Alfred Russell Bell, Jr., and Neil Phillip Anthony
of Steinger, Greene & Feiner, Port St. Lucie, for appellee/cross-appellant.
GROSS, J.
After a trial of a negligence case arising from a motor vehicle accident,
a 	jury 	awarded 	the 	plaintiff 	precisely 	$1,000,000. 	On 	appeal, 	the
defendant challenges several items of damages, which we agree were
excessive. 	But we also agree with the plaintiff’s argument, raised in the
conditional cross-appeal, that if this court were to reverse on the damage
elements requested by the defendant, any retrial on damages should
include all damages issues. Accordingly, we reverse and remand for a new
trial on permanency and all damages issues, as the matters justifying
reversal were interrelated with the other damages issues.
The Accident
On February 27, 2020, the parties were involved in an automobile
accident when the defendant, Kevin Dolan, pulled onto the right shoulder
of the road and then suddenly turned back onto the road, thereby causing
a collision with plaintiff Jonathan Negron’s box truck.

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The plaintiff declined ambulance transport from the scene. A few hours
later, he went to an emergency room complaining of severe pain and
spasms in his neck and back. 	After taking x-rays, the emergency room
diagnosed the plaintiff with neck and back sprains or strains. 	The
emergency room discharged the plaintiff with pain medication and referred
him to Dr. Daniel Husted’s orthopedic group, which had treated the
plaintiff before.
At trial, the defendant admitted he was solely at fault for causing the
accident but disputed the extent of the plaintiff’s resulting injuries and
damages.
The Plaintiff’s Prior Automobile Accidents
Before 	the 	2020 	accident, 	the 	plaintiff 	sustained 	injuries 	in 	two
automobile accidents: one in 2015 and another in 2017.
In 2015, the plaintiff was involved in a rear-end collision that caused
him neck pain rated at 10 out of 10, accompanied by numbness and
tingling radiating into his arms and hands. 	As a result, the plaintiff
underwent two surgeries performed by Dr. Husted: a two-level cervical
fusion and a one-level lumbar fusion. 	The plaintiff received a permanent
impairment rating of 8% as a result of the 2015 accident and ensuing
surgeries.
In 2017, the plaintiff was involved in another car accident that caused
him neck and back pain rated at 10 out of 10, accompanied by numbness,
tingling, and shooting pains. 	The plaintiff received injections in his neck
and back for pain management, which successfully allowed him to return
to work doing water remediation without physical restrictions and without
needing any further medication.
The plaintiff admitted that between the 2017 accident and the 2020
accident, he would have occasional “aches and pains” after a long day of
manual labor.
Claimed Injuries and Treatment from the 2020 Accident
Following the 2020 accident, the plaintiff initially pursued conservative
treatments including physical therapy and epidural steroid injections to
his back and neck. 	By the end of summer 2020, the plaintiff’s symptoms
worsened and required surgery.

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In October 2020, the plaintiff underwent a lumbar laminectomy, which
involves removal of a portion of disc material and bone from the lumbar
spine. 	The 	laminectomy, 	which 	improved 	but 	did 	not 	eliminate 	the
plaintiff’s back pain, was a less extensive procedure than the fusion
surgeries performed following the 2015 accident. The plaintiff knew going
into the October 2020 surgery that it would involve “a long recovery time”
and that he would find it “difficult . . . to get work again.”
The plaintiff’s treating physicians testified that the subject accident in
2020 either caused or exacerbated disc herniations in the cervical and
lumbar 	spine 	at 	levels 	adjacent 	to 	those 	previously 	operated 	upon
following the 2015 accident; they maintained that the 2020 injuries to the
plaintiff’s neck and back were permanent.
By contrast, the defense medical experts testified that (1) there were no
meaningful differences between the MRIs before and after the subject
accident, (2) there was no objective evidence the plaintiff sustained any
permanent injury as a result of the accident, (3) there was no objective
evidence the subject accident caused the need for the surgery or the
epidural steroid injections, and (4) the plaintiff does not require any future
care as a result of this accident. 	For example, the defense neurosurgeon
testified that, if one were to accept the plaintiff’s subjective complaints, the
plaintiff may have sustained a temporary soft tissue injury like a sprain or
a 	strain, 	for 	which 	“a 	month 	or 	two” 	of 	conservative 	care 	with 	a
chiropractor or physical therapist would be reasonable.
Claim for Past Medical Expenses
At 	trial, 	the 	plaintiff 	sought 	past 	medical 	expenses 	totaling
$190,523.10. 	This 	figure 	included 	amounts 	paid 	by 	workers’
compensation for the medical treatment arising from this accident.
The parties agreed to inform the jury about workers’ compensation
payments made toward the plaintiff’s medical expenses and lost wages.
Specifically, the jury was instructed that workers’ compensation had paid
a substantial portion of the plaintiff’s past medical bills and 60 percent of
his past lost wages.
Defense counsel argued in closing that the plaintiff’s injuries were at
most a sprain or strain for which six to eight weeks of conservative care
was appropriate. 	Relying on the plaintiff’s exhibit showing $31,571.32 in
outstanding medical bills, defense counsel told the jury: “I’m not going to
have you all do math. 	For the sake of argument, just give [the plaintiff]
the past bills of 31,000, call it 32, 32,000.”

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Claim for Future Medical Expenses
Dr. Husted testified that the plaintiff would require future medical care
as a result of the 2020 accident. A mortality table showed that the plaintiff
was expected to live for another 40.2 years.
Dr. Husted testified that the plaintiff would require a four-level cervical
spinal fusion surgery in about ten years at a cost of $100,000, which would
cause the plaintiff to lose half of his range of motion. 	For the next ten
years until that surgery, Dr. Husted testified, the plaintiff will require
ongoing treatment. During some years, the plaintiff will need a full course
of 60 sessions of physical therapy at a cost of $200 per session; in other
years, he will need fewer sessions.
Dr. 	Husted 	further 	testified 	that 	the 	plaintiff 	would 	also 	require
injections up to four times a year at a cost of $3,000 per injection, as well
as various medications, diagnostic imaging every year or two, and periodic
doctor visits billed according to the workers’ compensation fee schedule.
Even if the future cervical surgery were successful, the plaintiff would still
require ongoing prescription anti-inflammatory medication as needed,
occasional muscle relaxants, periodic diagnostic imaging, and follow-up
physician visits about four times per year.
In closing argument, the plaintiff sought a total of about $811,000 in
future medical expenses, consisting of physical therapy at $3,000 per year,
doctor appointments at $300 four times a year, four injections a year at
$3,000 each, neck surgery at $100,000, and prescription medication at
$4,000 per month.
The jury ultimately awarded $478,500 in future medical expenses.
Significantly, 	the 	jury 	also 	found 	that 	the 	plaintiff 	did 	not 	suffer 	a
permanent injury.
Claim for Past Lost Earnings
The plaintiff is a high school graduate. At the time of the 2020 accident,
he was employed as a water remediation technician, a job involving
physical 	labor 	and 	heavy 	lifting. 	The 	plaintiff 	had 	worked 	in 	water
remediation for over ten years at the time of trial.
The plaintiff previously worked as a pizza delivery driver until 2013.
Thereafter, 	he 	worked 	at 	a 	number 	of 	water 	restoration 	companies,
spending about one year at each position.

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The plaintiff began employment with Restoration One in January 2020,
earning $24.50 per hour or about $1,000 weekly.
Following the accident, the plaintiff was assigned to light duty. 	He
worked 52 hours the week of the accident, 37.5 hours the following week,
19 hours the next week, and 29 hours the week after that. 	The plaintiff’s
work hours thereafter had ups and downs, but they demonstrated a
declining trend overall. 	The plaintiff admitted that the onset of COVID
“affected [his] job” and resulted in his hours “getting smaller and smaller.”
The plaintiff was fired from Restoration One in May 2020, but he
provided no testimony explaining the reason for his termination. At some
point after the accident, the plaintiff applied for work at another water
remediation company. 	Over the summer of 2020, the plaintiff was “just
trying to recover” and filling out job applications. Dr. Husted testified that
the plaintiff’s symptoms were worsening in the summer of 2020 even
though the plaintiff was not working, but Dr. Husted did not explicitly
opine that the plaintiff was unable to work during this time.
Following the plaintiff’s recovery from the 2020 lumbar laminectomy
surgery, he began seeking employment in 2021. 	During that year, he
received only one job callback, which was for employment at a pizza
restaurant offering $13 per hour. 	The plaintiff testified that he earned
approximately $200 during all of 2021.
During the summer of 2022, after unsuccessful efforts to find a less
physical job, the plaintiff returned to water remediation work. In his most
recent water remediation job, the plaintiff earned $25 an hour. 	However,
in January 2024, he was terminated from that job. 	Although the plaintiff
initially refused to say his termination in January 2024 was entirely
unrelated to his injuries from the subject accident, he admitted on further
questioning that he was let go because he damaged a company truck while
driving under a building’s archway.
The evidence established that workers’ compensation paid the plaintiff
$43,052.02 to compensate him for 60% of his lost wages, with payments
being made from August 2020 to November 2021. 	This implies that
workers’ compensation calculated the total wage loss to be $71,753.67.
During closing arguments, the plaintiff’s counsel asked the jury to
award the remaining 40% of lost wages that was unpaid by workers’
compensation: “[Y]ou can certainly award [the plaintiff] for the time he was
unable to find a job $1,000 a week. 	What [the plaintiff] is asking you to

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do is to take the $43,000 in indemnity at 60 percent and award the other
40 percent of what it is that Workers’ Compensation paid him for the time.”
Similarly, defense counsel argued in closing that because workers’
compensation had paid the plaintiff 60% of lost wages, it would not be a
problem if the jury were to give him “another $15,000.”
Both sides’ closing arguments on the past lost earnings claim were at
odds with the jury instructions. 	The trial judge instructed the jury that
the workers’ compensation insurer would be entitled to repayment for all
payments caused by the crash and that such payments should not reduce
the amount of compensation to which the plaintiff would otherwise be
entitled.
The jury awarded $161,000 for past lost earnings.
Claim for Future Lost Earning Capacity
The 	plaintiff 	testified 	that 	he 	does 	not 	believe 	he 	can 	continue
performing water remediation work indefinitely. 	Likewise, Dr. Husted
stated that “the goal would be that [the plaintiff] changes what he does for
a living.” 	Dr. Husted explained that the plaintiff’s current occupation
would be “very hard to do” after a four-level cervical fusion and two prior
back surgeries.
The plaintiff testified that he hoped to return to school for two or four
years and get a degree that would allow him to get another good job. 	He
said he would need about $50,000 per year in income replacement while
attending school. 	The plaintiff noted that tuition and books at the local
state college would cost about $4,000 or $5,000 per year. Thus, for a two-
year associate’s degree at the local state college, the plaintiff estimated that
the total cost would be $110,000, including both lost income and tuition
and 	books. 	For 	a four-year 	bachelor’s 	degree 	program, the 	plaintiff
estimated that the total cost would be $220,000.
During closing arguments, the plaintiff’s counsel addressed the claim
for future lost earning capacity, asking the jury to award two years of the
plaintiff’s $50,000 annual salary plus $4,000 for tuition and books. 	The
plaintiff’s counsel argued that this award would allow the plaintiff to
retrain for a different job and “increase his earning capacity because he’s
no longer able to use the earning capacity that he has.”
By contrast, the defense argued in closing that the plaintiff was entitled
to nothing for loss of future earning capacity because he “went back to

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work” and the accident had “nothing to do with” why he got fired or why
he “hasn’t been able to retain a job.”
Ultimately, the jury awarded $328,500 for loss of earning capacity in
the future.
The Verdict
To recap, the jury returned a verdict awarding the following damages:
• $32,000 for past medical expenses
• $478,500 for future medical expenses
• $161,000 for lost earnings in the past
• $328,500 for loss of earning capacity in the future
The jury also found that the plaintiff did not suffer a permanent injury
and thus did not award any non-economic damages.
The total damages award was $1,000,000. 	Neither party raised any
contemporaneous objection to the consistency of the verdict before the jury
was discharged.
Post-Verdict Proceedings
The defendant moved for remittitur or alternatively, for a new trial. The
defense challenged the awards for future medical expenses, lost wages,
and loss of future earning capacity as excessive and against the manifest
weight of the evidence, especially given the jury’s finding that the plaintiff
did not sustain a permanent injury. The defendant requested a remittitur
to $47,500 for future medical expenses, $20,500 for lost wages, and $0 for
loss of future earning capacity. 	The defendant alternatively requested a
new trial for essentially the same reasons that he sought a remittitur.
The trial court denied the defendant’s post-trial motion, prompting this
appeal.
The Parties’ Arguments on Appeal
The defendant contends that the trial court abused its discretion by
denying a new trial or remittitur where three of the four components of
damages awarded by the jury were excessive and unsupported by the
evidence.

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First, as to the jury’s award of $161,000 for past loss of earnings, the
defendant asserts that such amount was excessive and unsupported by
the 	evidence, 	as 	“there 	was 	simply 	no 	evidence 	demonstrating 	or
quantifying any missed work or loss of past earnings as a result of the
accident.”
Second, the defendant argues that the jury’s award for loss of future
earning capacity was excessive and unsupported by the evidence “because
there was no evidence quantifying any claimed diminution in [p]laintiff’s
ability to earn money as a result of the accident or supporting an award of
$328,500 in particular.”
Third, the defendant says that the jury’s award of future medical
expenses was excessive and unsupportable given the jury’s finding that
the plaintiff did not sustain a permanent injury.
The plaintiff answers that the trial court did not abuse its discretion in
denying a new trial or remittitur. 	Alternatively, the plaintiff argues that
any new trial on damages should include a determination of whether he
suffered a permanent injury, and if so, a determination of non-economic
damages, as well as all damages elements.
Discussion of Applicable Law
An order denying a motion for new trial or remittitur is reviewed for an
abuse of discretion. 	Gen. Emps Ins. Co. v. Isaacs, 206 So. 3d 62, 63 (Fla.
4th DCA 2016).
A trial court may order a new trial on the ground that a verdict is
excessive if “(1) the verdict shocks the judicial conscience or (2) the jury
has been unduly influenced by passion or prejudice.” 	Brown v. Est. of
Stuckey, 749 So. 2d 490, 498 (Fla. 1999). “It is not necessary that a court
inquire and declare what wrongful influence or failure of duty brought
about an excessive verdict.” 	Loftin v. Wilson, 67 So. 2d 185, 190 (Fla.
1953). 	“Where the amount of an award is such as to indicate passion or
prejudice, a new trial must be ordered.” 	Id.
Because of the deference afforded to both the trial judge and the jury’s
factual determinations, the law favors “a very restricted review of an order
denying a motion for new trial on ground of excessive verdict.” 	Nordt v.
Wenck, 653 So. 2d 450, 452 (Fla. 3d DCA 1995) (quoting Lassitter v. Int’l
Union of Operating Eng’rs, 349 So. 2d 622, 627 (Fla. 1977)).

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In addition to the common law standard for ordering a new trial based
on 	an 	excessive 	verdict, 	the 	legislature 	has 	provided 	the 	remedy 	of
remittitur. 	The standards for granting a new trial due to an excessive
verdict 	and 	for 	ordering 	a 	remittitur 	are 	distinct. 	See 	Marinec 	v.
Progressive Select Ins. Co., 351 So. 3d 181, 184 (Fla. 2d DCA 2022)
(holding that the trial court erroneously relied upon the remittitur statute
in granting a motion for new trial where remittitur motion was legally
insufficient).
Upon proper motion following a verdict awarding damages in an action
arising 	out 	of 	the 	operation 	of 	a 	motor 	vehicle, 	the 	court 	has 	the
responsibility “to review the amount of such award to determine if such
amount 	is 	clearly 	excessive 	or 	inadequate 	in 	light 	of 	the 	facts 	and
circumstances which were presented to the trier of fact.” 	§ 768.043(1),
Fla. Stat. (2023). 	“If the court finds that the amount awarded is clearly
excessive or inadequate, it shall order a remittitur or additur, as the case
may be.” 	Id. “If the party adversely affected by such remittitur or additur
does not agree, the court shall order a new trial in the cause on the issue
of damages only.” Id.
In determining whether a verdict is excessive, a court shall consider the
following factors:
(a) Whether the amount awarded is indicative of prejudice,
passion, or corruption on the part of the trier of fact.
(b) Whether it clearly appears that the trier of fact ignored the
evidence in reaching the verdict or misconceived the merits
of the case relating to the amounts of damages recoverable.
(c) Whether 	the 	trier 	of 	fact 	took 	improper 	elements 	of
damages into account or arrived at the amount of damages
by speculation or conjecture.
(d) Whether the amount awarded bears a reasonable relation
to the amount of damages proved and the injury suffered.
(e) Whether the amount awarded is supported by the evidence
and is such that it could be adduced in a logical manner
by reasonable persons.
§ 768.043(2), Fla. Stat. (2023).

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Application to this Case
A. Past Lost Earnings
An award of past lost earnings requires evidentiary support. See Eagle
Atl. Corp. v. Maglio, 704 So. 2d 1104, 1105 (Fla. 4th DCA 1997). Here, we
conclude that the jury’s award of $161,000 for past loss of earnings was
excessive and unsupported by the evidence.
We question whether the plaintiff presented any competent evidence
quantifying the amount of past loss of earnings caused by the accident.
The plaintiff offered no proof that his reduced hours in the months after
the accident were related to his injuries as opposed to the onset of the
COVID pandemic. 	Also, the plaintiff presented no evidence that his May
2020 termination was caused by the accident. 	Further, although the
plaintiff obviously needed time to recover from his October 2020 surgery
before looking for a job, the plaintiff offered no evidence that he would have
been 	employed 	during 	this 	time 	but 	for 	the 	accident 	or 	surgery.
Significantly, the plaintiff was unable to secure employment even when he
started applying for work in 2021. In sum, the plaintiff offered no specific
evidence establishing precisely how long he was unable to work following
his October 2020 surgery.
An award of $161,000 in past lost earnings was excessive on its face.
The plaintiff offered no evidence that all his periods of unemployment and
reduced hours during the four years between the time of the accident and
the time of trial were caused by the accident. 	Even if the jury attributed
the entire period of unemployment from the plaintiff’s firing at the end of
May 2020 through the time he returned to water remediation in mid-
2022—which would appear to be improper given the lack of evidence that
the accident caused this extended unemployment—this roughly two-year
period would correspond to around $100,000 at an annual salary of
$50,000. 	And the plaintiff never established that his January 2024 firing
was related to his injuries from the 2020 accident, as the plaintiff admitted
that such firing occurred because he accidentally damaged a company
truck.
The plaintiff engages in creative math when he urges that the $71,000
corresponding to the workers’ compensation award for lost wages can be
added to this “$100,000 for two years” figure. 	Contrary to the plaintiff’s
argument, there was no evidence that the $71,000 figure represented
“wages 	before 	the 	[p]laintiff 	lost 	his 	job.” 	In 	fact, 	the 	workers’
compensation payout schedule suggested that the lost-wages benefit was
paid from August 2020 through November 2021, which was after the

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plaintiff lost his job in May 2020. 	Regardless, the $71,000 figure cannot
possibly represent lost wages during three-month period between the
February 2020 accident and the May 2020 firing, given that the plaintiff
earned only $50,000 per year.
The 	award 	of 	$161,000 	for 	past 	lost 	earnings 	was 	excessive 	and
unsupportable. 	It bore no reasonable relationship to the amount of
damages proven. 	Thus, the trial court abused its discretion in denying a
remittitur or new trial with respect to this element of the jury’s award.
However, for the reasons explained below, we reverse and remand for a
new trial instead of a remittitur.
B. Future Medical Expenses
The defendant did not preserve the argument that the award of future
medical expenses was inconsistent with the finding of no permanent
injury. “To preserve the issue of an inconsistent verdict, the party claiming
inconsistency must raise the issue before the jury is discharged and ask
the 	trial 	court 	to 	reinstruct 	the 	jury 	and 	send 	it 	back 	for 	further
deliberations.” Coba v. Tricam Indus., Inc., 164 So. 3d 637, 644 (Fla. 2015)
(quoting Ellender v. Bricker, 967 So. 2d 1088, 1091 (Fla. 2d DCA 2007)).
However, an argument that a verdict for future medical expenses was
excessive given the jury’s finding of no permanent injury is preserved if it
was raised in a motion for new trial or remittitur, even if the defendant
failed to raise the issue before the jury’s discharge. Progressive Select Ins.
Co. v. Lorenzo, 49 So. 3d 272, 276–77 (Fla. 4th DCA 2010).
“Although a permanent injury is not a prerequisite to recovering future
economic damages, it is a significant factor in establishing the reasonable
certainty of the future damages.” 	Auto-Owners Ins. Co. v. Tompkins, 651
So. 2d 89, 91 (Fla. 1995).
In Owen v. Morrisey, 793 So. 2d 1018, 1022–23 (Fla. 4th DCA 2001),
we held that a verdict allowing a plaintiff to recover all future economic
damages for his life expectancy and work life expectancy without a finding
of a permanent injury was “inconsistent and excessive,” because “a finding
of 	a 	permanent 	injury 	is 	essential 	to 	establish 	these 	damages 	with
reasonable certainty.” We explained:
Although a finding of a permanent injury is not a prerequisite
for an award of future economic losses, it also cannot be
ignored. 	In 	the 	instant 	case, 	the 	jury’s 	award 	of 	future
economic damages is inextricably linked to the evidence of a

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permanent 	injury. 	Without 	the 	finding 	by 	the 	jury 	of 	a
permanent injury, this verdict is inconsistent and excessive
and must be reversed.
Id. at 1023.
Here, the jury’s award of $478,500 in future medical expenses was
excessive in light of the jury’s finding that the plaintiff did not sustain a
permanent injury.1 	Whether or not the award necessarily included the
plaintiff’s future surgery in ten years, an award of $478,500 in future
medical expenses necessarily envisions substantial additional medical
care for most or all of the plaintiff’s remaining life expectancy. 	Without a
finding of permanent injury, this verdict is excessive and must be reversed.
C. Loss of Future Earning Capacity
For substantially the same reasons, we conclude that the jury’s award
of $328,500 for loss of earning capacity in the future was excessive in light
of the jury’s finding that the plaintiff did not sustain a permanent injury.
A finding of permanent injury was essential to establishing these damages
with reasonable certainty.2
1 If the jury had determined that the plaintiff’s injury was permanent, the award
would not have been excessive. 	The plaintiff presented competent, substantial
evidence that he would need extensive medical care for the rest of his life,
including a four-level surgery in about ten years.
2 We need not decide whether, if the jury had determined that the plaintiff’s injury
was permanent, an award of $328,500 in loss of future earning capacity might
have been supportable. In other words, we need not decide whether the evidence
that the plaintiff’s water remediation career would end in about ten years once
he underwent his prospective surgery, coupled with the evidence that the only
job the plaintiff could get outside the field of water remediation post-accident was
for $13 an hour at a pizza restaurant, could have supported the award if the jury
had found permanency. 	However, for the parties’ benefit on remand, we note
that the opportunity cost of attending a community college (two years’ lost salary
plus tuition and books) was not a proper measure of lost future earning capacity.
Such evidence did not amount to competent, substantial evidence of damages for
lost future earning capacity. 	An award for lost future earning capacity is
measured by the plaintiff’s diminished ability to earn income in the future, not
the opportunity cost of vocational retraining. See Rasinski v. McCoy, 227 So. 3d
201, 204 (Fla. 5th DCA 2017) (“To establish a claim for loss of future earning
capacity, the plaintiff must introduce reasonably certain evidence that the
capacity to labor has been diminished and that there is a monetary standard
against which the jury can measure any future loss.”) (cleaned up).

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D. The Only Workable Remedy is a New Trial on Damages
Regardless of whether we analyze the question of excessiveness under
the 	remittitur 	statute 	or 	under 	the 	common 	law 	standard, 	all 	three
challenged damages awards were excessive. 	However, a remittitur would
be impractical under the circumstances of this case. 	It would be difficult
to arrive at a reasonable remittitur figure for the three challenged damages
categories, particularly as to the two future damages categories for which
the jury awarded substantial damages yet found no permanent injury.
Another complicating factor is that the trial judge who presided over the
original trial is no longer on the bench. In any event, the plaintiff’s briefing
strongly suggests that the plaintiff would not agree to a remittitur if this
court were to reverse the final judgment. 	Therefore, the only workable
remedy is a new trial on damages. 	As we explain below, the scope of this
new trial shall encompass all damages issues.
The New Trial on Remand Shall Encompass All Damages Issues
We agree with the plaintiff that the jury’s award was “likely the result
of a compromise verdict,” as the jury’s findings of no permanency and only
$32,000 in past medical expenses are difficult to reconcile with the award
of $478,500 in future medical expenses. 	We therefore reverse for a new
trial on all damage issues.
Section 59.35, Florida Statutes (2025), provides:
An appellate court may, in reversing a judgment of a lower
court brought before it for review by appeal, by the order of
reversal, if the error for which reversal is sought is such as to
require a new trial, direct that a new trial be had on all the
issues shown by the record or upon a part of such issues only.
As appellate courts have applied this statute, remand directions are
generally “within the discretion of the appellate court.” 	R.J. Reynolds
Tobacco Co. v. Prentice, 290 So. 3d 963, 967 (Fla. 1st DCA 2019), approved,
338 So. 3d 831 (Fla. 2022); Reina v. Klisivitch, 419 So. 3d 246, 254 (Fla.
6th DCA 2025). 	Such an exercise of discretion is guided by “basic
principles of equity and fairness fashioned to the particular facts and
circumstances of the case.” 	Tracey v. Wells Fargo Bank, N.A. as Tr. for
Certificateholders of Banc of Am. Mortg. Sec., Inc., 264 So. 3d 1152, 1160
(Fla. 2d DCA 2019).
A limitation on an appellate court’s discretion is that “a new trial
‘limited to a single issue is inappropriate when the new trial is necessitated

14
by some error at trial which has prejudiced the jury broadly on all issues,’
or when ‘the issue is interrelated with another issue or is not separable
from another issue.’” 	Seven Rests., LLC v. Tulecki, 391 So. 3d 949, 963
(Fla. 4th DCA 2024) (quoting Cedars of Lebanon Hosp. Corp. v. Silva, 476
So. 2d 696, 704 (Fla. 3d DCA 1985)). 	“[A]fter granting a new trial on one
issue, an appellate court must order retrial of other issues when the issues
are ‘inextricably intertwined.’” 	Polynice v. Burger King Corp., 351 So. 3d
619, 620 (Fla. 3d DCA 2022). “This is so because if the trial court ‘were to
retry only one of two such intertwined issues to a second jury, while
maintaining the vitality of the first jury’s findings on the other issue, it
would 	cause 	confusion 	and 	uncertainty 	and, 	thus, 	an 	unfair 	trial.’”
Prentice, 290 So. 3d at 967 (quoting Morrison Knudsen Corp. v. Fireman’s
Fund Ins. Co., 175 F.3d 1221, 1255–56 (10th Cir. 1999)).
Reversal of a compromise verdict is one situation calling for retrial of
all hotly contested issues.
“A 	compromise 	verdict 	is 	a 	verdict 	which 	is 	reached 	only 	by 	the
surrender of conscientious convictions upon one material issue by some
jurors in return for a relinquishment by others of their like settled opinion
upon another issue and the result is one which does not command the
approval of the whole panel, and, as such, is not permitted.” Smith v. Fla.
Healthy Kids Corp., 27 So. 3d 692, 694–95 (Fla. 4th DCA 2010) (cleaned
up). 	The most 	common examples of 	compromise verdicts are those
“characterized by the common elements of hotly contested liability and
legal inadequacy of damages.” 	Id. at 694. 	For example, “a new trial on
both liability and damages is appropriate when a damage award is clearly
inadequate and the issue of liability is hotly contested, because such
circumstances 	give 	rise 	to 	a 	suggestion 	that 	the 	jury 	may 	have
compromised its verdict.” 	Street v. H.R. Mortg. & Realty Co., 949 So. 2d
1158, 1161 (Fla. 4th DCA 2007) (cleaned up). 	Moreover, “case law does
not require actual proof that the jury did compromise its verdict.” 	Id. at
1162.
A second situation calling for retrial of all hotly contested issues occurs
when the point requiring reversal is “interrelated with another issue or is
not separable from another issue.” 	Silva, 476 So. 2d at 704.
For example, in Owen—a case upon which the defendant relies to argue
that the future medicals were excessive given the finding of no permanent
injury—we remanded for the retrial to include the issue of permanency.
793 So. 2d at 1026. We explained that “the case should be treated as one
in which the trial court has directed a verdict on negligence and it remains

15
for the jury to determine what damages, permanent or non-permanent,
were caused by the negligence.” 	Id. (emphasis added).
To the same point, Ludwig v. Ladner, 637 So. 2d 308, 310–11 (Fla. 2d
DCA 1994), involved a situation similar to this case, where a jury found
no permanent injury yet awarded the plaintiff future damages that “would
be incurred over a recovery period equal to his expected life-span[.]” 	The
court found such damages to be “excessive if the jury in fact determined
that [the plaintiff] sustained no permanent injury.” Id. at 310. The Second
District was “unwilling to assume that the jury understood and followed
the law in deciding whether [the plaintiff’s] injury [was] permanent,” so the
court ordered a new trial on both permanency and future damages. Id. at
311. 	In short, the issue of permanency was interrelated to the issue of
future damages. 	Id. at 310; see also Garriga v. Guerra, 753 So. 2d 146,
147 (Fla. 3d DCA 2000) (reversing for new trial due to an inconsistent
verdict where “the only evidence of the need for future medical expenses
in this case was inextricably linked to the evidence of a permanent injury”).
We reject the defendant’s attempt to limit the retrial to the three damage
awards 	he 	dislikes 	while 	preserving 	the 	“favorable” 	verdicts 	on
permanency and past medical expenses.
The jury’s verdict of exactly $1 million was likely the result of a
compromise arrived at by irreconcilable findings. 	There is strong reason
to 	suspect 	that 	the 	jury’s 	verdict—a 	precise 	$1 	million 	total 	with
incompatible 	and 	incomprehensible 	findings—was 	the 	result 	of 	a
compromise verdict, rather than a careful assessment of the evidence
pertaining 	to 	each 	question 	on 	the 	verdict 	form. 	Contrary 	to 	the
defendant’s argument, a compromise verdict is not limited to a situation
of clearly-inadequate damages plus hotly-contested liability. 	Rather, that
is simply the most common form of a compromise verdict. 	In this case,
whether the plaintiff suffered a permanent injury caused by the 2020
accident was hotly contested. 	So too were all damages issues.
As explained above, given the jury’s finding that the plaintiff did not
sustain a permanent injury, there was no rational basis for the jury to
conclude that he would need $478,500 in future medical expenses. 	But
the converse is also true. 	Given the jury’s finding that the plaintiff would
need $478,500 in future medical expenses, there was no rational basis for
the jury to conclude that he did not sustain a permanent injury. The issue
of permanency is interrelated with and inseparable from the issue of future
medical expenses in this case, warranting a new trial on both issues.

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Similarly, 	the 	award 	of 	$32,000 	in 	past 	medical 	expenses—which
represented 	outstanding 	past 	medical 	expenses 	that 	defense 	counsel
argued the jury could award as a mathematical shortcut for estimating the
cost of a few weeks of conservative care for a sprain or strain—was
irreconcilable with the finding that the plaintiff was so severely injured
that he would need $478,500 in future medical expenses. Under the facts
of this case, the issue of past medical expenses was interrelated with and
inseparable from the issues of permanency and future medical expenses.
Like the court in Ludwig, in light of the jury’s finding that the plaintiff’s
future medical expenses would amount to $478,500, we are “unwilling to
assume that the jury understood and followed the law” in deciding whether
his injury was permanent and the amount of past medical expenses. 	See
637 So. 2d at 311.3
We reverse for a new trial on all damages issues, including permanency.
This result is consistent with Owen, where we ordered that the retrial
would encompass all issues regarding “what damages, permanent or non-
permanent, were caused by the negligence.” 	793 So. 2d at 1026 (where
verdict was “inconsistent and excessive” due to jury’s award of over $1
million in future damages after the jury found no permanency).
Reversed and remanded.
CIKLIN and C ONNER , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.
3 We distinguish ITT Hartford Insurance Co. of the Southeast v. Owens, 816 So.
2d 572 (Fla. 2002), relied upon by the defendant, as a case where the jury’s
tainted findings were not interrelated with other issues. 	There, the Florida
Supreme Court emphasized that “future medical damages constitute[d] a discrete
item of recovery, separate from other damages.” Id. at 577.