$______ VERDICT - GENDER DISCRIMINATION - SEXUAL DISCRIMINATION IN WORKPLACE - FIRE RESCUE RECRUIT TREATED DISPARAGINGLY DUE TO GENDER.

• Pages: 5-6

COMMENTARY

Following the verdict, the defendant filed a motion for new trial.

The defendant argued that the jury awarded future medical ex-

penses in excess of the expert testimony and greater than the

amount demanded by the plaintiff. The award was contrary to the

jury instruction on present value of damages. The defendant cited

Truelove v. Blount, 954 So. 2d 1284, 1287 (Fla. 2d DCA 2007)

wherein the court explained that it was not enough for a medical

expert to testify that a plaintiff could need future medical treat-

ment or might incur future medical expense since such testimony

does not rise to the level of reasonable certainty. The defendant

also cited Volusia Cty v. Joynt, 179 So. 3d 448, 452 (Fla. 5th DCA

2015) wherein the court explained that, not only does a plaintiff

need to prove that a future medical care is reasonably certain to

occur, the plaintiff must also provide the jury with a basis to

formulate the future cost of medical treatment.

Further, the court held, there was no evidence from which the jury

could infer the same with reasonable certainty, just multiple specu-

lative assertions with regard to future treatment. In the subject ac-

tion, an expert economist testified about the present value amount

of future medical expenses based on the testimony of a physiatrist.

That amount was less than $125,000. The physiatrist never testified

that future medical treatment was reasonably certain to occur in

excess of the treatment he outlined. There was no competent evi-

dence for the jury to consider when deciding future medical care.

For the jury to award future medical care in excess of the expert

testimony, they needed to speculate and add assumption plus as-

sumption to come up with a figure. Again, the defendant argued,

this was contrary to the jury instructions on reducing damages to

present value. Further, the award of medical expenses in the future

was not in conformity with the jury instructions regarding reducing

to present value. The defendant argued that future medicals should

be remitted to $125,000. The defendant supported this argument,

maintaining that the amount of future medical expenses awarded

by the jury bore no relationship with the required standard on the

evidence presented at trial according to the defendant.

The plaintiff opposed the defendant’s motion arguing that, in this

case, there was no basis for reducing the jury’s verdict as provided

for in section 768.043 or 768.74 because the verdict was not exces-

sive and accurately reflected the evidence in the trial record. The

plaintiff maintained that, while both statutes allowed the trial court

to order a remittitur of the amount awarded by a jury if the court

found the amount to be excessive, in this case the defendant failed

to meet the burden of showing that the future medical damages

verdict was unsupported by the evidence.

The plaintiff maintained that her physiatrist testified regarding fu-

ture care needs and the cost of that care. The plaintiff’s economist

testified that the present value of that future care was $124,485. In

the plaintiff’s closing argument that same amount was requested

from an injury in future medical expenses. In suggesting that

amount, plaintiff’s counsel specifically pointed out that the amount

did not provide for the additional care as testified to by the plain-

tiff’s treating physicians but not covered in the psychiatrist’s contin-

uation of care plan. The jury rendered an award of $250,000 for

future medical expenses. This amount was the bone of contention

for the defendant who sought to have it remitted to $125,000.

What the defendant failed to disclose, according to the plaintiff,

was that the expert physiatrist was not the only physician to testify

as to the plaintiff’s future medical needs.

2 treating physicians also offered opinions at trial, via deposition,

regarding the plaintiff’s future medical needs. Specifically, one of

the experts discussed both a future microsurgery and a fusion and

the second discussed the ongoing need for lifetime rhizotomies and

a spinal cord stimulator. This testimony was published to the jury

without objection by the defendant. None of the additional treat-

ment noted was in the physiatrist’s plan. The plaintiff argued that

the jury was not constrained only to what the physiatrist testified to

in terms of the plaintiff’s future care needs, but was allowed to con-

sider all the evidence in the case including the testimony of the

plaintiff and her treating physicians.

The defendant’s motion was denied.

$743,372 VERDICT – GENDER DISCRIMINATION – SEXUAL DISCRIMINATION IN

WORKPLACE – FIRE RESCUE RECRUIT TREATED DISPARAGINGLY DUE TO GENDER.

Palm Beach County, FL

This action was filed against the defendant Palm

Beach County by a former female recruit in the

county’s Fire Rescue Department. The plaintiff

alleged, among other things, that the county

discriminated against her based on her age and

sex. The defense maintained that the treatment of

the plaintiff was motivated by legitimate, non-

discriminatory reasons.

The plaintiff was a 43-year-old Caucasian female who

was hired on April 6, 2015 and placed into the defen-

dant’s 8-week Fire Rescue Recruit Academy as a proba-

tionary fire fighter. The plaintiff claimed she was

constructively terminated by the defendant on October

6, 2015. The plaintiff asserted claims of discrimination

based on sex and/or age pursuant to the Florida Civil

Rights Act of 1992; handicapped discrimination based

on a wrist injury and unlawful retaliation for her

complaints.

Evidence showed that the plaintiff suffered a work-re-

lated fracture of her right wrist and was assigned to a

light duty assignment in Support Services. She claimed

that her supervising captain stated on 3 occasions that

he did not want her working for the defendant and that

she was “weak” because she was a female. The plaintiff

rejoined the academy in September 2015 after recover-

ing from her wrist injury. She contended that she was un-

fairly subjected to disciplinary actions and written

reprimands and was ultimately coerced into involuntarily

resigning. The plaintiff testified that she was being

treated for depression and had been prescribed

medication as a result of the defendant’s actions.

The defense maintained that male and female recruits,

young and old, were all subjected to the same treat-

ment. The defendant showed that, during her second

stint as a firefighter recruit, the plaintiff was disciplined

twice. The first time for failing to bring her driver’s license

to class on a day she was expected to participate in

on-the-road driving drills. The second disciplinary action

FEATURED CASES 5

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