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Florida Fourth DCA finds that trial court erred in allowing wrongful death plaintiff to argue to jury that it could award pain and suffering damages to surviving daughter calculated over a period extending beyond the decedent’s normal life expectancy

On March 30, 2022, in Healthcare Underwriters Group, Inc., et al, v. Sanford, No. 4D20-2023, the Florida Fourth DCA reversed, in part, a judgment for the plaintiff in a wrongful death medical negligence lawsuit, concluding that the trial court erred by allowing evidence of a surviving daughter’s life expectancy into evidence where it extended beyond that of the decedent, as well as allowing the plaintiff to argue that the jury could consider the considerably longer life of the surviving daughter in awarding damages. The Fourth DCA cited In BellSouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287, 292 (Fla. 2003), in which the Florida Supreme Court ruled that that a surviving minor’s non-economic damages for the wrongful death of a decedent were awardable from the date of the injury to the time the decedent would normally have been expected to die. The Fourth DCA held that the new trial should be limited to determining the daughter’s correct non-economic damages.

On other issues raised on appeal, the Fourth DCA found no reversible error by the trial court. The Fourth DCA concluded that the trial did not err in allowing evidence and argument by the plaintiff concerning the defendant doctor’s financial motive in performing the surgery, which involved implantation of a medical device, based on the doctor having previously received financial compensation from the device manufacturer. The Fourth DCA found that the inclusion of a settling defendant’s name in the case caption of the verdict form was erroneous under Fla. Stat. § 768.041(3), which states that the fact of “a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.” However, the error was considered harmless because there was no indication that the jury noticed the verdict caption. Finally, the Fourth DCA found that the trial did not err in awarding the prevailing plaintiff prejudgment interest, allowed under Fla. Stat. § 766.209, which the Fourth DCA confirmed should be calculated from the date that the defendant refused the plaintiff’s offer of binding arbitration.