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Court Reinstates Jury Award Granting Zero for Pain and Suffering for Broken Neck - Ortega v. Belony, 2015 WL 9914181 (Fla. 3rd DCA 2015)

The process of proving damages in a car accident lawsuit can be difficult especially when attempting to establish intangible damages like pain and suffering. While lost wages and medical costs can be established based on objective evidence, one of the important functions of an experienced Florida car accident lawyer involves persuasively advocating for a maximum award in terms of these types of hard to quantify forms of loss. The recent decision by the 3rd District Court of Appeals for Florida, Ortega v. Belony, demonstrates the importance of skilled advocacy in the measure of compensation received for this type of damages.

The plaintiff Blanchard Belony suffered a broken neck and was hospitalized in traction for eight days following her crash. Belony's doctor suggested surgery, but the plaintiff elected an alternative course of treatment that involved wearing a "halo" (used to immobilize the head and neck) for a three month period while the fracture healed. Evidence presented at trial reflects that Belony moved in with his brother during this recovery period to obtain assistance with bathing and other basic needs. Belony also experienced insomnia and had to return to the hospital to have screws on the halo tightened. After the halo was removed, Belony's only complaint was residual neck pain.

Based on the evidence, the jury awarded $32,971 in past and future medical expenses, but the plaintiff was denied damages for pain and suffering. The plaintiff's damages were increased to $5,000 for pain and suffering after the jury was ordered to reconsider the award. The trial judge indicated he was "shocked" by the amount and increased it to $250,000.

On appeal, the 3rd DCA reversed the trial court judge, emphasizing the broad discretion afforded to the jury when calculating damages for pain and suffering. The court noted the high degree of difficulty in calculating damages for pain and suffering and found that the determination of this component of damages uniquely within the province of the jury. The calculation of pain and suffering is "clothed with a presumption of regularity and is not to be disturbed if supported by the evidence." (Citations omitted).

Although the court acknowledged that Belony suffered permanent injury, it observed that the evidence could support the nominal pain and suffering award. The plaintiff did not contend the jury's verdict was the product of passion, corruption, or prejudice. The court focused on plaintiff's relatively quick recovery (i.e., 3 months), almost normal condition by the time of trial, and lack of need for future medical treatment. In other words, the plaintiff was penalized for being resilient in participating in rehabilitation toward his own recovery. Under these circumstances, the court held that $5,000 was not an unreasonable award for past pain and suffering despite the permanent and painful nature of a broken neck.

The important lesson to take away from this decision is that the calculation of damages and the persuasion employed before a jury can dramatically impact an injury victim's recovery. While every case is unique, $5,000 for a neck fracture that results in permanent debilitation, lingering pain, and temporary disability seems outrageous. A more compelling presentation on the nature and extent of the hardships, limitations on daily activities, and intense pain associated with Belony's injuries might have yielded a different outcome.

If you or a family member has been injured or killed in a motor vehicle collision, the Auto Accident Lawyers at Greenberg, Stone & Urbano offer the assistance you need to obtain the results you desire. With over 130 collective years of experience representing truck accident victims across South Florida, our firm provides legal representation of unmatched excellence. Contact our firm as soon as possible to start on the road to protecting your legal rights. Our firm received an AV rating from Martindale Hubbell and was ranked as a top firm in South Florida by the Miami Herald. Put our exceptional personal injury attorneys to work on your case. Call us at (888) 499-9700 or (305) 595-2400 or you can visit our website to schedule your initial consultation.

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