IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ANDREW MAINES and NOT FINAL UNTIL TIME EXPIRES TO
KENNETH MAINES, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellants,
CASE NOS. 1D14-5917, 1D15-0739
v.
MARCIA DRASKO FOX,
Appellee.
_____________________________/
Opinion filed May 3, 2016.
An appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.
Caryn L. Bellus and Bretton C. Albrecht of Kubicki Draper, P.A., Miami, for
Appellants.
C. Paul Brannon and W. Dennis Brannon of Brannon & Brannon, Ft. Walton
Beach, and Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola,
for Appellee.
WOLF, J.
Appellants, defendants in the trial court, challenge a final judgment in a case
which arose out of a motor vehicle accident for which liability was admitted, and
the major point of contention was whether the accident caused appellee’s injury.
Appellants assert that the trial court erred in 1) admitting testimony regarding why
appellant Andrew Maines ran the red light, causing the accident; 2) improperly
limiting the testimony of appellants’ expert concerning the specific causation of
appellee’s injury; and 3) awarding attorney’s fees based on the rejections of
appellee’s October 8, 2013, proposals for settlement.
We find no error in allowing testimony concerning why appellant Andrew
Maines ran the red light because under the circumstances of the case, the testimony
was pertinent to Andrew’s speed, which was relevant to whether the accident
caused appellee’s injury. We, therefore, affirm as to this issue without further
comment.
As to the expert testimony, we determine the trial court abused its discretion
in refusing to allow the expert biomechanical engineer, who was also an expert
medical doctor, to render an opinion as to the specific causation of appellee’s
injury but find the error was harmless, because the expert was allowed through
other testimony to convey substantial portions of his opinion to the jury.
As to the attorney’s fees issue, we determine the offers of settlement were
internally inconsistent and ambiguous, so the trial court erred in awarding
attorney’s fees based on appellants’ rejections of the offers.
I. General Facts
This case arose out of an automobile accident that occurred when appellant
Andrew Maines ran a red light and hit two cars, one a vehicle driven by appellee,
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Marcia Fox. Appellee filed suit, claiming Andrew Maines was negligent in
causing the accident and that his father, Kenneth Maines, was vicariously liable as
the vehicle owner. Appellee claimed she was permanently injured and required
neck surgery as a result of the accident. Appellants admitted liability but denied
the accident caused appellee’s injury. Both sides presented expert testimony
concerning the causation of the injury and need for surgery, which will be more
fully described later on in this opinion.
The jury returned a verdict finding appellee suffered a permanent injury and
awarded her a total of $143,896.32. Appellee moved for an award of attorney’s
fees pursuant to section 768.79, Florida Statutes (2013), based on wrongful
rejection of her previously filed settlement proposals. The trial court granted the
motion.
II. Testimony of Expert Witnesses
Both sides presented expert testimony as to the cause of appellee’s injury.
Appellee presented the testimony of her treating chiropractor, Dr. Kelly-Dukes. Dr.
Poelstra, who performed neck surgery on appellee, also testified. Both doctors
opined the automobile accident was the cause of appellee’s injury.
Notably, Dr. Poelstra explained to the jury that he had extensive expertise
not only as an orthopedic surgeon but also as a biomedical engineer with
specialized knowledge regarding the effect of external forces on the human spine.
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He opined that appellee suffered a permanent neck injury, a disc herniation, as a
result of a traumatic event (meaning the accident), which caused her need for neck
surgery and which would likely require a second surgery in the future. He further
testified that such an injury could be caused by a minimal amount of external force
or trauma.
He explained that because there is always a delay between the movement of
a person’s body and her head, a low-speed collision can cause a significant injury,
“because the simple mass times a little bit of velocity, if it’s only even five miles
an hour is a tremendous force on the human body.” Although he later admitted that
he did not analyze the forces in this accident, he further opined that even a five-
mile-per-hour impact “can have a tremendous impact on the human body, simply
because we’re small, the car is big, so the kinetic energy on the body is huge.”
Appellants presented two expert witnesses, Dr. Keller, a medical doctor, and
Dr. Bowles, a biomechanical engineer and medical doctor.
Dr. Keller testified that he did not believe the motor vehicle accident caused
appellee’s cervical injury; rather, he believed appellee’s preexisting condition of
degenerative disc disease was the cause. Dr. Keller relied on appellee’s medical
records as well as her account of the accident in formulating an opinion.
Dr. Bowles, a biomechanical engineer and medical doctor, planned to offer
expert causation testimony in part based on a force analysis that he conducted
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using his expertise as both a biomechanical engineer and a medical doctor. His
opinion was that the forces at play in the accident were too minimal to cause the
specific injury suffered by appellee.
Appellee presented a challenge to the reliability of Dr. Bowles’ planned
causation testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), alleging that Dr. Bowles’ method of using his force analysis
results to come to specific medical causation conclusions was not reliable because
medical doctors, when determining causation, do not normally rely on force
analyses. Appellee alleged that by using his biomechanical background to testify as
to specific medical causation, Dr. Bowles was creating a new type of expertise that
had not been deemed reliable by the scientific community.
After holding a hearing on the Daubert challenge, the trial court found that
Dr. Bowles improperly “bridged” the fields of biomechanical engineering and
medicine by relying on his own force analysis to determine appellee’s injury was
not caused by the accident without proving the reliability of using force analysis
calculations to determine specific causation. The trial court thus limited Dr.
Bowles’ testimony, preventing him from testifying as to his opinions regarding
specific causation of this particular injury; the court, however, permitted Dr.
Bowles to testify regarding his force calculations of the accident and his belief that
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the forces in effect during this particular accident would not have been severe
enough generally to cause the injury alleged by appellee.
It is important to analyze specifically what testimony Dr. Bowles was
allowed to present to the jury without objection and what was excluded.
Specifically, Dr. Bowles informed the jury that part of his job as a biomechanical
engineer and accident reconstructionist was to determine what specific forces were
at work on the human body during an accident:
A: [A]ccident reconstruction [ ] is applying the
collision physics to understand – looking at
vehicles and roadways and diagrams and putting
together how vehicles collide and understanding
the physics behind that and then understanding
things like the forces and the nature of movement
that are caused by vehicles that collide.
Q: And is part of what you do examine the forces that
are exerted on the human body during an
automobile accident?
A: Yes.
Dr. Bowles also testified that he was “prepared today to discuss the forces that
would have been applied to a person in [appellee’s] vehicle at the time of the
accident.” (Emphasis added).
Dr. Bowles also informed the jury of the specific forces at work in the
accident and how those forces affected appellee’s vehicle. Dr. Bowles testified that
appellee’s vehicle was hit by appellant Kenneth Maines’ vehicle “with a force
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level that’s between about seven thousand and thirteen thousand pounds.” He then
specified how that force level would affect an occupant of appellee’s vehicle:
Q: In an Infiniti such as the one that Ms. Fox was
driving, how would that force affect an occupant
of the cabin?
A: Well, the occupant moves as a result of the vehicle
moving out from under them. So at that level, that
force applied in an impact would cause the vehicle
to slide over the road and move up to a speed of
three point one miles per hour as a result of that
type of impact. And it would do that over about
one hundred milliseconds . . . over that length of
time, that amount of movement would accelerate
the vehicle by an acceleration rate of about two
point three Gs, and that’s an acceleration measure,
in other words, how abruptly the speed changes.
Dr. Bowles next informed the jurors that a speed change rate of 2.3 Gs was
miniscule, a force amount comparable to the forces people normally encounter
doing day-to-day activities:
So when you corner a vehicle or when you step on the
brake at a stoplight, you’re usually seeing about point
seven G. And then if you go over railroad tracks or if you
ride public transportation where you’re standing up and
holding on to a pole and it – and the vehicle changes
direction, the occupant or the person riding in the vehicle
will experience an acceleration that’s in this range, two-
and-a-half Gs is not unusual. If you pay money to go to
Six Flags or Disney, roller coasters will put [sic] about
three-and-a-half Gs.
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The jurors were also informed of the minimum force level required to cause
a cervical disc injury like the one suffered by appellee, and that the minimum force
level was “substantially higher energy than what we’re talking about here”:
Well, in order to cause the disc injury, you have to push
on it hard enough that you cause anatomical damage . . .
it usually takes a vertical drop. So an acceleration as in
the range of about twelve Gs for the disc to begin to
structurally fail or you have to have some sort of
movement that is in a direction that pulls the head and the
neck in a way that’s different than the shoulders and the
torso. And that ends up with lateral accelerations that can
be in the six to eight Gs to start that process.
Finally, the jurors learned that Dr. Bowles believed only an extraordinarily
fragile person would suffer a cervical disc injury at the force level caused by the
accident:
Well, this level, again, is well within what you would
experience in an ordinary day of travels across a railroad
tracks, potholes and those sorts of things. Your head and
neck will see accelerations that are in this level – in this
range. And so, again, are there people who are so fragile
that they could become symptomatic simply riding
around in a car? There are some people that are that
fragile. So I think that the bell curve of human
experience, there might be some very, very fragile people
out there so some people might be susceptible.
Thus, Dr. Bowles was able to testify as to five key facts: (1) the point of his
biomechanical engineering analysis was to determine what forces would have
impacted a person in appellee’s vehicle at the time of the accident; (2) the specific
acceleration rate of 2.3 Gs was applied to appellee’s vehicle as a result of the
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accident; (3) the miniscule amount of force that 2.3 Gs would cause was roughly
equivalent to riding public transportation or driving over railroad tracks; (4)
significantly higher forces than the ones at work in the accident were necessary to
cause resulting cervical disc injury; and (5) only an extremely fragile human being
could have sustained an injury similar to that allegedly sustained by appellee as a
result of the accident.
The only testimony excluded was that the forces from this particular
accident could not have caused the injury to this specific plaintiff.
III. Daubert Analysis
A trial court’s exclusion of expert testimony is reviewed for an abuse of
discretion. Baan v. Columbia County, 180 So. 3d 1127 (Fla. 1st DCA 2015). In
the instant case, the expert’s opinion was challenged pursuant to Daubert, 509 U.S.
579. The Daubert standard for admissibility was adopted by the Legislature in
section 90.702, Florida Statutes (2014).* See Giaimo v. Fla. Autosport, Inc. 154
So. 3d 385, 387-88 (Fla. 1st DCA 2014). That section provides that expert witness
opinion testimony is admissible if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods;
and
*
The constitutionality of this statute is not at issue in this appeal.
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(3) The witness has applied the principles and methods reliably to the
facts of the case.
Under Daubert, a trial court exercises a gatekeeping function to “ensure that
any and all scientific evidence is not only relevant, but reliable.” Daubert, 509
U.S. at 589. In doing so, the trial court may look at both underlying scientific
reliability and whether “‘there is simply too great an analytical gap’ between the
underlying science and the expert’s opinion.” C. Ehrhardt, Florida Evidence §
702.3 (2015 ed.) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
Where evidence is based on reliable principles and methods and is reliably applied
to the facts of the case, the trial court errs in excluding such evidence. Baan, 180
So. 3d at 1134.
Here, it was undisputed that the underlying biomechanical calculations of
Dr. Bowles were reliable. It was also undisputed and unobjected to that Dr.
Bowles, as a biomechanical engineer, could testify that the forces involved in the
accident would not generally cause the type of injury suffered by appellee. Further,
Dr. Bowles was also an expert medical doctor who could presumably have given
an opinion, as the other doctors did, based on medical records and patient history,
as to whether this accident caused the specific injury in question.
In analyzing whether Dr. Bowles could have also relied on his force
calculations to give his specific causation opinion, it may be helpful to view what
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biomechanical engineers and doctors are normally allowed to testify to in addition
to any limitations and reasons why.
It is undisputed that biomechanical opinions as to the general causation of a
type of injury are admissible. In Council v. State, 98 So. 3d 115, 116 (Fla. 1st
DCA 2012), we specifically recognized that a biomechanical expert is qualified to
opine on the general mechanism of an injury. In Houghton v. Bond, 680 So. 2d
514, 521 (Fla. 1st DCA 1996), we accepted similar testimony. See also Zane v.
Coastal Unilube, Inc., 774 So. 2d 761 (Fla. 4th DCA 2000).
Biomechanical experts are not, however, allowed to render opinions that
require medical expertise. For instance, in Mattek v. White, 695 So. 2d 942 (Fla.
4th DCA 1997), the court held an accident reconstructionist could not testify as to
the permanency of an injury. See also Stockwell v. Drake, 901 So. 2d 974 (Fla.
4th DCA 2005) (holding a biomechanical engineer could not testify as to specific
causation or extent of injury). Issues such as permanency and severity of an injury
require medical evaluation of the patient, the patient’s history, and the particulars
related to a specific person which go beyond the typical expertise of a
biomechanical engineer. Dr. Bowles admitted as much in his testimony when
stating that force projections alone would not support an expert opinion as to
specific causation.
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We do, however, allow medical experts to give opinions as to specific
causation, as noted by appellee’s counsel during the Daubert hearing:
He’s a hybrid. He has the education, training, experience
as a biomechanical engineer, and he’s also a medical
doctor, board-certified surgeon with spinal surgery. And
what we’re saying is we have no objection to him
offering testimony regarding the general forces that the
general public or the plaintiff would have experienced.
But when you go over to what injuries were, in fact,
caused in the accident, you’re sliding into the medical
arena. And this is when Dr. Bowles can use his expertise,
his qualifications, his experience as a medical doctor to
say, I’ve reviewed the medical records, and I believe that
these injuries were or were not caused in the motor
vehicle accident. But when a medical doctor relies upon
an accident reconstruction and a force analysis to come to
a conclusion that these injuries weren’t caused in the
motor vehicle accident, you’re creating a whole new
brand of expert specialty, a new science.
(Emphasis added).
It is also not unusual for doctors to rely on anecdotal evidence of the history
and severity of an accident in rendering a causation opinion. As noted by Dr.
Keller, appellants’ second expert witness, medical doctors often rely on a patient’s
account of the underlying incident to formulate their opinions as to specific injury
causation: “[Orthopedic surgeons] take into account the mechanism of injury in
assessing a patient’s injury . . . . I would typically ask if the airbags deployed, how
much damage was done to the car, if they’re in a car.”
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Dr. Bowles’ consideration of specifically calculated biomechanical force
analysis factors, the underlying methodology of which was not challenged by
appellee, was simply a more accurate measure of the factors already considered by
doctors to render causation opinions.
Because appellee did not challenge the underlying scientific methods used
by Dr. Bowles in conducting his biomechanical force analysis, and because Dr.
Bowles’ reliance on that unchallenged force analysis was simply a more accurate
measure of factors normally relied upon by medical doctors to determine specific
causation, we find the trial court’s limitation of Dr. Bowles’ testimony was an
abuse of discretion. However, we find that the limitation of the testimony was
harmless error.
IV. Harmless Error
In civil cases, any error is harmful “[u]nless the beneficiary of the error
proves that there is no reasonable possibility that the error contributed to the
verdict.” Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256-57 (Fla. 2014).
Here, we find appellee successfully proved there was no reasonable
possibility that the trial court’s limitation of Dr. Bowles’ testimony contributed to
the jury’s verdict for two reasons: (1) despite the limitation of testimony, the jury
was nonetheless presented with all of the relevant facts; and (2) the admitted
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testimony of Dr. Bowles sufficiently portrayed to the jury his opinions as to
causation.
As previously noted, Dr. Bowles testified as to all of his force calculations
and the methodology utilized in determining the G-force exerted on the vehicle.
He was also able to explain in detail how such force related to forces our bodies
encounter in everyday life. Thus, the jury was presented with all of the relevant
facts, including the minimal forces at work in the accident which Dr. Bowles
believed were unlikely to cause injury to a person unless she was extremely fragile,
as well as Dr. Keller’s opinion that the accident did not cause appellee’s injury.
Dr. Bowles’ proffer offered very little additional evidence that he had not
covered in his admitted testimony. In Dr. Bowles’ proffer, he discussed many of
the factors about which he was actually able to testify, including the fact that, as a
biomechanical engineer, he “had to have an understanding of the collision event
itself and how the vehicle moved, as well as correlate that with the patterns of
injuries that [appellee] had,” and his belief that knowing the force of an accident
“leads you to an idea of the relative risk” of a person potentially sustaining
injuries; however, “it doesn’t tell you whether somebody is really lucky and gets
off scott-free [sic] or whether or not they were a fragile egg who was unfortunately
injured by something that would not have caused injury to the majority of people.”
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Had Dr. Bowles’ testimony not been improperly limited, the only additional
information he would have testified to, as noted in his proffer, would have been his
specific causation opinion: “It’s my opinion that [appellee] did not suffer an acute
traumatic injury as a result of the impact”; however, she did suffer non-permanent
muscle strain as “the result of her seeing the vehicle come, bracing, and then
whatever movement happens in her vehicle.”
Thus, despite the limitation of his testimony, because Dr. Bowles was able to
present to the jury all relevant factors he deduced from his force analysis
calculations and to opine that only an extremely fragile person could have
sustained an injury like appellee’s from the motor vehicle accident, we find the
erroneous limitation of Dr. Bowles’ testimony could not reasonably have
contributed to the jury’s verdict. As such, we find the trial court’s error was
harmless and affirm the judgment as to liability and damages.
V. Attorney’s Fees Based on Proposals for Settlement
Appellants challenge the trial court’s award of attorney’s fees to appellee
based on appellee’s October 2013 proposals for settlement, to which appellants
never responded. Appellants allege, among other things, that the award of
attorney’s fees should not have been given to appellee because the proposals for
settlement contained improper ambiguities. We agree.
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A trial court’s ruling on a motion to tax attorney’s fees and costs pursuant to
the offer of judgment statute is reviewed de novo. See Paduru v. Klinkenberg, 157
So. 3d 314, 316 (Fla. 1st DCA 2014).
Section 768.79 and Florida Rule of Civil Procedure 1.442 govern the form
and content of proposals for settlement. Strict adherence to section 768.79 and rule
1.442 is required of proposals for settlement. Borden Dairy Co. v. Kuhajda, 171
So. 3d 242, 243 (Fla. 1st DCA 2015). The rule of strict compliance is a bright-line
rule. Colvin v. Clements & Ashmore, P.A., 182 So. 3d 924 (Fla. 1st DCA 2016).
Both section 768.79 and rule 1.442 require that certain elements of proposals
for settlement be stated with particularity. For example, rule 1.442(c)(2)
specifically requires “any relevant conditions” and “all nonmonetary terms of the
proposal” to be stated with particularity; rule 1.442 also requires proposals for
settlement to “state whether the proposal includes attorneys’ fees and whether
attorneys’ fees are part of the legal claim.” Fla. R. Civ. P. 1.442(c)(2)(C), (D), (F).
When considering what degree of particularity the rule requires, the supreme
court has held that “‘[t]he rule intends for a proposal for judgment to be as specific
as possible, leaving no ambiguities so that the recipient can fully evaluate its terms
and conditions.’” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067,
1079 (Fla. 2006) (quoting Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA
2002)). Though elimination of all ambiguity might be impossible, a proposal must
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nonetheless “be sufficiently clear and definite to allow the offeree to make an
informed decision without needing clarification. If ambiguity within the proposal
could reasonably affect the offeree’s decision, the proposal will not satisfy the
particularity requirement.” Id.; see also Audiffred v. Arnold, 161 So. 3d 1274,
1279 (Fla. 2015).
Here, we find the October 8, 2013, proposals for settlement contained patent
ambiguities which could reasonably have affected appellants’ decisions not to
accept them; the proposals were ambiguous as to whether they were inclusive of
attorney’s fees and costs.
Paragraph 4 of the proposals provided that no attorney’s fees or costs would
be taxed against appellants. However, Paragraphs 10 and 11 contradicted
Paragraph 4. Paragraph 10 implied that attorney’s fees could be taxed against
appellants at a later time, despite the statement in Paragraph 4 that no attorney’s
fees would be taxed against appellants: “Attorney fees at this time are not part of
any claim being asserted by Plaintiff and, therefore, this Proposal does not include
any claim for attorney fees.”
Further, Paragraph 11 contradicted the claim in Paragraph 4 that no costs
would be taxed against appellants by stating, “This Proposal is inclusive of costs.”
There was no mention that the proposals were inclusive of attorney’s fees.
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We find these ambiguities regarding attorney’s fees and costs left appellants
unable to fully evaluate the proposals’ terms and conditions. Further, the
ambiguities prevented the proposals from strictly comporting with the
requirements of rule 1.442 that proposals for settlement “state whether the proposal
includes attorneys’ fees and whether attorneys’ fees are part of the legal claim” and
“state with particularity any relevant conditions.”
Because of their patent ambiguities as to attorney’s fees and costs, we find
the October 2013 proposals for settlement invalid and therefore vacate attorney’s
fees based on those proposals awarded by the trial court; however, we vacate
without prejudice for the trial court to evaluate any other proposals for settlement
that were presented to appellants by appellee.
AFFIRMED, but the award of attorney’s fees is VACATED.
ROWE and RAY, JJ., CONCUR.
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