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Inadequate Jury Awards in Wrongful Death Cases

Inadequate Jury Awards in Wrongful Death Cases

When the Jury Fails to Award Enough Wrongful Death Damages

If a Florida wrongful death lawsuit goes to trial, then the jury decides the amount of wrongful death damages to be awarded to each claimant.  Should the jury return a verdict that is considered unfair and adequate by either (1) the Personal Representative on behalf of the decedent’s estate or (2) the Survivors who are claimants under the Florida Wrongful Death Act (FWDA), then it is possible to have the jury’s decision revised.

If the jury verdict is wrong because it fails to provide sufficient and correct damages to either the estate itself or to any one of the survivors, then it is not set in stone.  The error by the jury can be fixed.  This can, however, be a complicated and costly endeavor.

Procedure for Rectifying an Inadequate Wrongful Death Award

The first step to challenging the jury award amounts in a Florida Wrongful Death lawsuit is to file a “motion for additur” after the verdict has been rendered by the jury.  This is filed with the trial court judge, not the jury.

Under Florida Section 768.74(1), “additur” is authorized in cases where the trial court determines that an award of damages is “… inadequate in light of the facts and circumstances which were presented to the trier of fact.”  Specifically:

In any action to which this part applies wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered that awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.

Florida Section 768.74(1).

The motion for additur can be filed alone, without an accompanying motion for a new trial.  It is to be heard by the trial court judge as a post-verdict motion.  See Fitzmaurice v. Smith, 593 So.2d 1197, 1198 (Fla. 4th DCA 1992).

Motion for Additur Filed With Trial Court

The motion must be filed by the Personal Representative of the decedent’s estate.  This is because the Personal Representative acts as a party plaintiff in the Wrongful Death Lawsuit, and acts for both the decedent’s estate as well as the Survivors.

If the Survivors are dissatisfied with the wrongful death jury verdict, they cannot file a motion with the judge to voice their complaints.   They must act through the plaintiff in the case, the estate’s Personal Representative.

A hearing will be scheduled before the trial court after the motion for additur is filed.  Both sides will be able to present arguments and evidence to the trial judge.  A court reporter will make a record of the proceeding.  The jury will not be present, having already been excused by the court from service.

In considering the Motion for Additur, the trial court judge will make the initial decision on the adequacy of the jury’s verdict.  The trial judge’s decision on whether or not the damage award was adequate will stand unless the Appellate Court decides that the judge abused his or her discretion in making the ruling.

The basis for the Judge’s Review of the Jury Award

How will he or she decide on the adequacy of the jury award?  The trial court judge will decide whether or not the damages are inadequate by asking whether or not the jury award shocks the conscience of the court.

Judges are to give great respect to the jury’s verdict.  In Wrongful Death Lawsuits, the Florida Supreme Court has warned trial courts that the FWDA’s approval of a Motion for Additur in Florida Statute 768.74 does not alter the “longstanding principles” governing a trial court’s regard to a jury’s calculation of damages.  Poole v. Veterans Auto Sales and Leasing Co. Inc., 668 So.2d 189, 191 (Fla.1996).

Trial judges are warned that they are not to “sit as a `seventh juror,’ thereby substituting his or her resolution of the factual issues for that of the jury.”  Rowlands v. Signal Constr. Co.,549 So.2d 1380 (Fla.1989). Unless there is a blatant error, the jury’s determination must stand.

Shock the Conscience of the Judge

Should the trial judge review the jury award and find it shocks the conscience of the judge, then the judge must make the corrections he or she deems necessary.  Otherwise, the motion for additur must be denied.

If the Personal Representative seeks to appeal that denial, he can do so.  In fact, the Personal Representative is under a fiduciary duty to file the appeal if there is a viable basis.

The defendant can also seek to appeal a motion for additur should the judge rule against the defendant’s best interests and set aside a jury award. Either way, this will be a complex appeal to advocate.

An Appeal of the Judge’s Ruling on the Motion for Additur

Why?  All reviews by an appellate court on the decision of the lower court on the adequacy of the jury’s damages will be done with great respect given to the trial bench.

In some areas, the appeals court reviews “de novo,” considering the issue without reference to the judge’s analysis.  Not in the motion for additur ruling.

Here, the appellate judges will let the decision remain as the trial judge thought best unless the appeals court finds the judge abused discretion when making the ruling.

The trial court’s determination regarding additur may be reversed on appeal only where there is a clear abuse of discretion. See Doughty v. Insurance Co. of N. Am., 701 So.2d 1225, 1226 (Fla. 4th DCA 1997)Valinzo v. Cem-Kam, Inc., 698 So.2d 359, 360 (Fla. 4th DCA 1997)Airstar, Inc. v. Gubbins, 668 So.2d 311, 312 (Fla. 4th DCA 1996).

This is a difficult argument to win at the appellate level, to convince the appeals court the judge was so wrong in allowing the jury verdict to remain unchanged that he or she was abusive in applying his / her discretion when rendering the decision.

Respect for the Jury and for the Trial Judge

In appealing a jury verdict on wrongful death damages, the party appealing must first overcome the burden of the respect the courts have for jury verdicts.  Second, the appellant must overcome the traditional respect given to the trial court judge (who sat through the trial itself and heard the evidence) regarding his or her decision regarding the viability of that verdict as being adequate under the law.

Jury verdict damage decisions can, and do, get reversed on appeal.  The case is then returned to the trial court for a new trial focused solely upon that damage claim.

One of the clearest examples of a successful appeal of a jury verdict as being inadequate regarding wrongful death damages is when the jury foregoes offering any award whatsoever for a specific type of damage claim.

Appellate Court Review of Inadequate Jury Awards in Wrongful Death Damages

On appeal, there will be a review of the evidence presented at trial.  If there was evidence presented to the jury of wrongful death damages but the jury nevertheless awarded “zero” for that damage element in the jury verdict form, then that is a “zero verdict.”

Zero Verdict for Element of Wrongful Death Damages

A zero verdict is inadequate as a matter of law if there was evidence of that type of damage in the trial record.  See Waldron v. Dorsey, 585 So.2d 403, 404 (Fla. 1st DCA 1991)Christopher v. Bonifay, 577 So.2d 617 (Fla. 1st DCA 1991).

For instance, in the case of Jenkins v. West, 463 So.2d 581 (Fla. 1st DCA 1985), there was evidence that was substantial in testimony and documents that the husband had suffered a loss of consortium.  Moreover, the defendant did not bother to dispute the evidence presented of the spouse’s loss of consortium.

Nevertheless, the jury verdict gave the husband nothing for his consortium claim.   The judge did not overturn the verdict.

On appeal, it was held to be a reversible error for the jury to award zero damages for his loss of consortium damage claim.  The jury award was ruled to be inadequate as a matter of law, and the case went back for a new trial on his consortium loss.

Loss of Consortium: Inadequate Wrongful Death Jury Award

In the case of  Miami-Dade County v. Merker, 907 So. 2d 1213 (Fla. Dist. Ct. App. 2005), a disabled woman was confined to a wheelchair and used the Miami bus system to get to and from her job each day.  Tragically, one day the bus driver was forced to slam on the bus emergency brake to avoid a collision with a negligent driver.  At the time Mrs. Merker’s wheelchair had been strapped into the bus safety straps, but she was not wearing a safety belt connected to the bus itself.  She was restrained only by the wheelchair’s seat belt.

This was not sufficient to block Mrs. Merker from being thrown around the bus interior during the force of the bus emergency brake being engaged.  She was seriously injured and taken to a hospital where she suffered through medical treatment for several months before passing away.

Her husband sued for her wrongful death.  The jury awarded the Estate of Ms. Merker $500,000 in medical damages but returned a zero dollars verdict for Mr. Merker’s consortium claim.

Trial Judge Finds Wrongful Death Jury Award Inadequate

He moved the trial court judge to alter the jury verdict.  The judge did so.  The trial court found that “[t]he verdict returned by the jury, as to the claim of [Mr. Merker], is against the manifest weight of the evidence given the unrebutted and undisputed evidence of love and affection between Mr. Merker and the decedent[.]”

So, the trial court judge ruled the zero jury award on the husband’s loss of consortium claim was inadequate as a matter of law.

Then, the defendant bus company appealed the trial judge’s ruling.

Appellate Court Agrees With Judge: Jury Verdict Inadequate

On appeal, it was found that the trial record supported the judge’s decision.  Specifically, the evidence included the testimony of their son as well as the testimony of the widower.  Both testified as to the couple’s loving relationship, and gave specific examples of their bond:  they traveled together, socialized as a couple, etc., and “spent a lot of time enjoying each other’s company.”

There would be a new trial on the husband’s wrongful death damages.

Pain and Suffering Damages and Inadequate Jury Awards

Many inadequacies of award claims are based upon the pain and suffering damages sought by the Survivors.

Wrongful death brings shock, surprise, and grief that can be emotionally devastating.  The Florida Wrongful Death Act allows survivors to seek damages for the pain and suffering they endure after the death of their spouse, parent, or child.   Florida Statute 768.21(2)(3)(4).

Most Survivors in wrongful death cases understandably assert they have had, and continue to experience, severe pain, suffering, and mental anguish as a result of the loss of their loved one.   Their damages can cover not only past pain and suffering, but the jury can estimate and quantify the pain, suffering, and mental anguish they may bear for the future and the rest of their lives.

However, under the laws of the State of Florida, juries are given much respect and wide latitude and deciding how much to award insofar as pain and suffering damages for the past, present, and future.

Pain and Suffering in the Jury Verdict

Accordingly, many trial court judges are wary of altering the jury’s determination of pain and suffering damages, even if the award accompanies a wrongful death verdict.

In order for a wrongful death jury verdict to be set aside on appeal, any inadequacy in the wrongful-death damages verdict must be clearly shown.  Alternatively, the trial court record must demonstrate prejudice or sympathy as a basis for the jury’s award. Walker v. City of Miami, 337 So. 2d 1002 (Fla. Dist. Ct. App. 1976).

Could Reasonable Men Return That Verdict?

For a review of an inadequate jury verdict, the general rule is the appellate court will look to see if a jury of reasonable men could have come to the same decision.  If so, then the jury verdict may be disheartening and even tragic, but under the law, it must stand as it cannot shock the conscience of the court.  See Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999).

Lowball Verdict after Back Injury Not Clearly and Grossly Inadequate

In the case of West v. Food Fair Stores, Fla.App. 1974, 305 So.2d 280, the plaintiff appealed the jury verdict as being so grossly inadequate as to shock the conscience of the court.  In this proceeding, there was a slip and fall accident where the plaintiff was seriously injured.  She had to have two spinal surgeries.  Both failed.  She was left with a 40% disability according to medical testimony.  The jury returned a verdict of $12,500 for all her damages, from medical expenses to pain and suffering past, present, and future.

The appeals court recognized that the test to be applied to decide if the jury verdict was inadequate was if a jury of reasonable men could have returned that verdict.   They cited two earlier cases:  Griffis v. Hill, Fla. 1970, 230 So.2d 143Crutcher Resources Corporation v. Rayner, Fla.App. 1973, 283 So.2d 392.

The appellate court then explained that they reviewed all of the trial record and all the evidence that had been admitted.  Because the jury could have attributed Margaret West’s pain and suffering to her congenital condition, it was found that the jurors as reasonable men could have reached the verdict they did.  So they did not reverse the verdict, no matter how unfair it seemed, because they could not find the jury verdict “clearly and grossly inadequate”.

Zero Damages for Children Held Inadequate Pain and Suffering Award

In Snoozy v. United States Gypsum Co., 695 So.2d 767 (Fla. 3d DCA 1997), a father died and his widow and children sought wrongful death damages including pain and suffering.  Edward Snoozy died of mesothelioma, an asbestos-related disease.  His widow, Clare Snoozy, filed for wrongful death damages on behalf of herself, her husband’s estate, and their two children, Gerald age 21, and Janet, age 19.

The jury found that the defendant was responsible for the decedent’s death. They awarded economic and noneconomic damages to the widow, Clare.  They also awarded economic damages to the decedent’s estate.

However, the jury returned a zero verdict for the decedent’s adult children.

The case was appealed, arguing that the jury had an obligation to award the children damages where there was a finding of liability (negligence and strict liability) and a trial record “replete with evidence of the loss of companionship and fellowship of their father.”

It was not challenged that Gerald and Janet were eligible for wrongful death benefits even though they were both over the age of 18 years at the time the case was filed.  Under the Florida Wrongful Death Act, both Janet and Gerald were considered minor children as a matter of law.  Florida Statute 768.18(2).

The appellate court agreed that the jury verdict was wrong.  The children’s pain and suffering damage award was inadequate as a matter of law.  The key here was undisputed evidence presented at trial that the deceased had been “…a dedicated father who played an active role in the lives of his children, that [he] had a close relationship with his children, and that [they] suffered a great loss as a result of their father’s death.” 769.

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As a Board-Certified Civil Trial Expert for over 40 years, Alan Sackrin has extensive experience dealing with wrongful death cases. He offers a free initial consultation (over the phone or in person) to answer your questions. When you’re ready to speak with a wrongful death lawyer about your case, call Alan at 945-458-8655 or send him an email through our contact page.

For more information About Alan Sackrin See his Wrongful Death Lawyer Page.