When Can a Plaintiff Ask for A New Trial in Florida?

391477_surgeon_3.jpgUnder certain circumstances, after a trial, a personal injury plaintiff may make a motion for a new trial, sometimes focusing on a new trial for a specific issue in the original trial. One reason for a new trial is a trial judge’s finding that the verdict rendered by the jury is contrary to the evidence put forward at trial. This means that the judge believes there is no way a reasonable jury could have concluded as it did.

In a recent case, a plaintiff was awarded past and future medical damages, as well as past and future pain and suffering by a jury. The defendants did not contest liability for the car accident. They didn’t contest that the plaintiff’s first surgery arose because of the injuries from the car accident. At trial, the issues were whether the costs of the first surgery were reasonable and whether another surgery years later was also the result of the car accident. The parties disagreed as to why the later surgery arose. They presented conflicting evidence at trial on these issues and had different expectations about what factual findings the jury would make.


The plaintiff had been treated for right leg and back pain between the accident and later surgery. By 2006, the plaintiff was considered to have reached maximum medical improvement by an independent medical examiner. Then in 2008, the plaintiff complained of radiating pain for the first time. There were three new herniated discs and three new fractures that had not appeared on the MRI just after the accident. Accordingly, he had the later surgery. His total demand, including both surgeries, was $341,980.86.

The defendants argued that the new herniations and fractures were not caused by the original accident, but must have been the result of another trauma. They argued they were not responsible for the expense of the later surgery and other late medical expenses. They also submitted evidence from the independent medical examiner that the surgeon’s fees for the first surgery were not reasonable. The jury returned an award for the plaintiff that was substantially less than what the plaintiff had asked for, at $169,041.00.

The plaintiff moved for additur. A judge has the power to grant “additur” where he deems a jury’s award to be inadequate. In this case, the judge granted the motion for additur, giving the plaintiff what he originally requested. The plaintiff rejected the additur and asked for a new trial on damages. The court granted the request.

The defendant appealed. The appellate court explained that a court errs in granting a motion for additur when there is conflicting at evidence such that the jury could have reached its verdict and award in line with that evidence. The appellate court reviewed the record and noted the conflicting evidence on what medical fees were reasonable and causation. It ruled that there was enough evidence from which the jury could conclude that the later surgery and later charges were not caused by the defendant’s negligence in the car accident, but resulted from a trauma between the first and second surgeries.

If you or a loved one has been hurt because of another person’s negligence, call the experienced South Florida personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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