               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


FRED MEYERS and NINIBETH MEYERS, )
                                 )
         Appellants,             )
                                 )
v.                               )                     Case No. 2D17-1681
                                 )
BONNEVA SHONTZ,                  )
                                 )
         Appellee.               )
                                 )

Opinion filed July 13, 2018.

Appeal from the Circuit Court for Pinellas
County; Pamela A.M. Campbell, Judge.

Elizabeth C. Wheeler of Elizabeth C.
Wheeler, P.A., Orlando, for Appellants.

Robert Hitchens of Hitchens and Hitchens,
P.A., St. Petersburg, and Frank DiCosola
of Frank DiCosola, P.A., Pinellas Park, for
Appellee.


SALARIO, Judge.

             A car owned by Fred Meyers and driven by Ninibeth Meyers rear-ended a

car in which Bonneva Shontz was a passenger. Ms. Shontz sued the Meyerses for

negligence, and a jury returned a defense verdict. Ms. Shontz moved for a new trial,

which the trial court granted. The Meyerses appeal. Because the trial court failed to

apply the correct legal standard to the motion for new trial—which is whether the jury's
verdict was against the manifest weight of the evidence—we reverse and remand for

reconsideration.

                                              I.

              On July 9, 2014, Ms. Meyers was driving down Park Boulevard in

Seminole. It had been raining on and off, and the roads were wet. As she neared the

intersection of Park and Starkey Road, she saw a car stop in front of her. She hit the

brakes, but there was no time to stop. Her car hit the car in front of her. Ms. Shontz

was a passenger in that car, which was driven by her husband. The Shontzes' car was

pushed into a car in front of it, which was driven by Nicholas Bozick. The Meyerses' car

(a 2005 Chevy Aveo) was totaled. The Shontzes' car (a 2013 Chevy Equinox) had to

have its rear bumper replaced. Mr. Bozick's car (a 2013 Toyota Highlander) had about

$740 of damage. No one went to the hospital on the day of the accident.

              Ten months later, Ms. Shontz sued Mr. and Ms. Meyers for physical

injuries she says she suffered in the accident.1 Her complaint alleged that Ms. Meyers

negligently caused the wreck, that the wreck caused Ms. Shontz's injuries, and that Mr.

Meyers was vicariously liable for Ms. Meyers's negligence under the dangerous

instrumentality doctrine.2 The Meyerses denied those allegations and, in addition,




              1Mr.   Shontz initially joined the suit as a plaintiff. His claims, however, were
settled prior to trial. The complaint also named the Shontzes' uninsured motorist carrier
on a single claim for breach of contract. That claim, too, was resolved prior to trial.
Ultimately, this case was presented to the jury solely as a claim by Ms. Shontz to
recover for physical injuries allegedly caused by the accident. There was no claim or
evidence at trial that the accident caused any other form of injury, loss, or damage (e.g.,
nominal damage or vehicular damage) to Ms. Shontz individually.
              2"Under   the dangerous instrumentality doctrine, an automobile owner is
vicariously liable for damages caused by the operation of his vehicle by a permissive
user." Fischer v. Alessandrini, 907 So. 2d 569, 570 (Fla. 2d DCA 2005).

                                             -2-
contended that Mr. Shontz negligently operated his vehicle and that his negligence

caused the accident. The case went to discovery and, after that, to trial.

              Whether Ms. Meyers negligently caused the accident and whether the

accident caused Ms. Shontz's injuries were hotly disputed at trial. Ms. Shontz's theory

was that as the rear driver, Ms. Meyers was necessarily negligent, that Ms. Meyers was

driving too fast on a rainy day, and that the accident injured Ms. Shontz's back or

aggravated her existing back problems. The Meyerses, on the other hand, argued that

the Shontzes' car suddenly changed lanes and left Ms. Meyers without room to stop.

They also contended that Ms. Shontz's back problems were not caused by this

accident, but rather by scoliosis—a condition involving a curvature of the spine—

degenerative changes in the spine, a different car accident in 1995, or other incidents

earlier in Ms. Shontz's life.

              The evidence on the issue of negligence came from three witnesses—Mr.

Shontz, Mr. Bozick, and Ms. Meyers. Mr. Shontz, who was driving the Shontzes' car,

testified that before the accident he and Ms. Shontz left a Wal-Mart Neighborhood

Market and drove a couple of miles on Park Boulevard toward Starkey Road. When he

got to the intersection of Park and Starkey, he stopped for a red light behind Mr.

Bozick's car, where he sat for "about five seconds or so." He heard skidding tires and

told Ms. Shontz to brace herself right before they were hit by the Meyerses' car and

pushed into Mr. Bozick's car. Mr. Shontz talked to Ms. Meyers at the accident scene,

and she said that Mr. Shontz had cut her off. At trial, Mr. Shontz could not remember

whether he changed lanes before the accident happened.

              Mr. Bozick's testimony was a little more complicated. He testified that

after he stopped at the light at Park and Starkey, he saw the Shontzes' car pull in

                                           -3-
behind him and stop. He initially could not say whether the Shontzes' car changed

lanes into the lane he was in, but after being presented with testimony he gave at a

pretrial deposition he admitted that the Shontzes' car had switched lanes from the right

into the lane his car occupied. He said, however, that the lane change was not "quick"

or a "zip, zip type thing." He was asked on direct examination about how much time

passed between when he stopped at the light and when the accident happened, and he

testified both that it was "a couple of seconds" and "three to five seconds." He then was

asked on cross-examination whether it was three to five seconds between his seeing

the Shontzes' car behind him and the accident, to which he answered "three to seven

seconds or so—maybe a little bit longer" but acknowledged that "it's difficult to give

time." He also testified that he thought that Ms. Meyers was "going too fast for the road

conditions at that time."

              Ms. Meyers testified that before the accident she was driving down Park at

about thirty-five miles per hour. Although Park has a forty-five-mile-per-hour speed limit

in that area, she was driving more slowly because the streets were wet. She saw the

Shontzes' car because she was traveling in the same lane behind it. At some point, Ms.

Meyers moved one lane to the left and the Shontzes remained in the lane they were in.

That situation prevailed for a few minutes. As Ms. Meyers approached Starkey Road,

the Shontzes' car moved into her lane, leaving only one car length between her car and

theirs. She testified that she saw the Shontzes' car coming into her lane "all of a

sudden" and that "all of a sudden it just came in there." Ms. Meyers applied the brakes

and tried to steer into a different lane but did not have enough time to avoid an accident.

              The evidence on causation came from Ms. Shontz and several medical

professionals. Much of it is in conflict. What seems clear is that Ms. Shontz did not

                                           -4-
have any pain or, apart from stress, other symptoms either at the scene of the accident

or immediately thereafter. She testified that three to four days later, however, she had a

headache and neck and back stiffness.3 She visited her chiropractor five days after the

accident, complaining of moderate pain throughout her back and mild pain in her neck.

He gave her chiropractic treatments. Ms. Shontz began seeing an orthopedic surgeon

about a month after the accident. An MRI revealed disc bulges, protrusions, and

herniations throughout her spine. Her complaints grew more severe, including pain and

numbness in her left leg. She testified at trial that she is no longer able to do things she

enjoyed doing before the accident.

              It is also clear that Ms. Shontz had issues with her back long before the

accident. She was diagnosed with scoliosis at twenty-one. There was evidence at trial

that the curvature of the spine that comes with scoliosis can create wedging on the

vertebrae, inflammation of the nerves, arthritis, and degenerative changes that all could

cause the kinds of symptoms of which Ms. Shontz complained. She has received

chiropractic treatment on and off since her diagnosis. Ms. Shontz was also in a bad car

accident in 1995. She was a passenger in a car her son was driving on Interstate 275

when another car came over two lanes and struck her son's car on her side, causing it

to spin around and slam into a concrete divider. Afterward, she had pain in her neck,

shoulder, and lower back and suffered headaches. She treated with her chiropractor

and neurologist and was told by her doctors that she had suffered a partial permanent

injury as a result of the accident. She hired an attorney, brought a claim, and settled.



              3She   testified during direct examination that the stiffness occurred within
twenty-four to forty-eight hours after the accident but clarified on cross-examination that
it was three to four days.

                                            -5-
              There was no MRI or other objective evidence describing the condition of

Ms. Shontz's back before the accident and thus no ready way to say that any particular

physical condition in her spine (e.g., a bulge or herniation) did not exist before the

accident but did exist after. Ms. Shontz's theory that the accident caused her injuries

was based on her own subjective complaints of pain and physical limitations after the

accident that she said did not exist before. Her orthopedic surgeon testified that her

complaints were corroborated by the results of the postaccident MRI and opined that

she suffered permanent injuries to her back as a result of the accident. Her chiropractor

opined that she suffered a "classical whiplash injury" to her neck and back. Ms. Shontz

testified that her symptoms, need for treatment, and limitations on her physical abilities

were greater after the accident than they were before. She had, in her words, reached

a "new normal" after the accident that was different from her old normal before it.

              The Meyerses, in contrast, theorized that Ms. Shontz's symptoms were

not caused by the accident, but were rather the result of her scoliosis, her 1995

accident, various other incidents, and degeneration in her spine. An orthopedic surgeon

who testified on their behalf as an expert witness conducted a compulsory medical

examination and opined that the accident with Ms. Meyers neither caused any back

injury to Ms. Shontz nor aggravated any preexisting back injury. He theorized that the

findings from the postaccident MRI took decades to develop and did not show any sign

of being related to trauma, such as would occur in a car accident. Based on Ms.

Shontz's complaints of pain subsequent to the accident, the surgeon testified that he

believed that she suffered a sprain or strain to the neck which would have healed within

months with minimal treatment.




                                            -6-
              The Meyerses supplemented the expert testimony with evidence that Ms.

Shontz had visited chiropractors for problems with her neck and back many times in the

years leading up to the accident. This included evidence that Ms. Shontz visited the

chiropractor in the two months before the accident complaining of severe back pain,

problems with her pelvis and left foot, and issues with walking. Ms. Shontz testified that

she did not remember these visits. The Meyerses also presented evidence of other

events from which one might infer that Ms. Shontz hurt her back, including an event in

December 2000 in which she reported to workers' compensation that her spinal cord

and wrist were affected during an incident at work, an event in April 2004 in which she

reported to workers' compensation an incident during which she "jammed" her

"shoulder/neck," an event in December 2006 in which she hurt herself doing a cartwheel

and had to visit the chiropractor, an event in July 2008 in which she fell into water and

had to visit the chiropractor, and an event in May 2009 in which she reported to workers'

compensation that she had suffered a sprain or tear of "multiple body parts." Ms.

Shontz testified at trial that she did not remember several of these events, and she

admitted that she did not disclose them in answers to interrogatories. There was

evidence that at least some of these events were not disclosed to her treating

physicians.

              After the parties finished presenting evidence, the trial court instructed the

jury on the elements of a claim for negligence and gave the jurors the standard

instructions on both negligence and causation. See Fla. Std. Jury Instr. (Civ.) 401.4,

401.12(a). In sum, it told the jury that negligence was a failure to use such care as a

reasonable person would use under similar circumstances and that negligence was a

legal cause of loss if it produces or contributes substantially to producing such loss.

                                            -7-
The jury was given a verdict form consisting of several special interrogatories. The first

asked, "Was there negligence on the part of Ninibeth Meyers on July 9, 2014, which

was a legal cause of loss, injury, or damage to Plaintiff, Bonneva Shontz?"4 The

interrogatory thus combined the issues of negligence and causation into a single

question, allowing the jury to answer "yes" if it found both elements proved and allowing

it to answer "no" if it found either not proved. The jury answered "no," which resolved

the case with a complete defense verdict.

              Ms. Shontz filed a motion for a new trial in which she argued that the

evidence overwhelmingly established both negligence and causation, stating that there

was no evidence to support Ms. Meyers's sudden-lane-change theory and that all

doctors, including the defense expert, agreed that Ms. Shontz had suffered some

physical injury. The Meyerses filed a memorandum in opposition in which they asserted

that Ms. Meyers had testified that the Shontzes' car had suddenly changed lanes in

front of hers,5 that Mr. Bozick's testimony was to similar effect, and that Mr. Bozick

testified that the Shontzes' car changed lanes three to five seconds before the accident.

She further argued that the trial evidence permitted the jury to find that the accident did

not cause Ms. Shontz any injury and that the defense expert's opinion was based on the

assumed truthfulness of Ms. Shontz's postaccident complaints, which the jury was free

to reject. While the motion for new trial was pending, the trial court entered a judgment

in the Meyerses' favor in accord with the verdict. Shortly thereafter, and without


              4This
                  interrogatory is consistent with the model verdict form for negligence
with apportionment of fault contained within the standard instructions for use in civil
cases. See Fla. Std. Jury Instr. (Civ.) Appendix B Form 1.
              5Themotion actually stated that Ms. Shontz gave this testimony, but it is
obvious from the context that it was referring to Ms. Meyers.

                                            -8-
conducting a hearing, the trial court granted Ms. Shontz's motion for new trial. In

relevant part, its order read as follows:

              The court has reviewed the Motion and the Court file
              and the Defendants' Response to the Plaintiff's
              Motion for New Trial, and is otherwise duly advised on
              the premises, and finds that the Defendant's response
              contains a representation of the testimony from
              Nicholas Bozick submitted at trial which is significantly
              different from the Court's recollection as to liability.
              Therefore, it is hereby

              ORDERED as follows:

              1. The Plaintiff's Motion for New Trial is hereby
              GRANTED on the basis of liability, the Court is not
              ruling on the theory of causation.

(Emphasis added.) This is the Meyerses' timely appeal from that order. See Fla. R.

App. P. 9.110(a)(3), 9.130(a)(4).

                                              II.

              The Meyerses argue that by deciding to award a new trial on the sole

basis that its recollection of Mr. Bozick's testimony differed from Ms. Meyers's recitation

of it in the response to the motion for new trial, the trial court applied the wrong legal

standard to Ms. Shontz's motion for a new trial. The legal question the trial court was

required to but did not answer, they argue, is whether the jury's verdict was against the

manifest weight of the evidence. This point is well taken.

              A trial court may order a new trial when the jury's verdict is against the

manifest weight of the evidence.6 Meadowbrook Meat Co. v. Catinella, 196 So. 3d 373,



              6There  are, of course, additional bases upon which a trial court might
decide to grant a new trial, see 4 Bruce J. Berman and Peter D. Webster, Berman's
Florida Civil Procedure, § 1.530:9 (2018) (providing a nonexclusive list based on Florida
appellate decisions), but the basis that the verdict is against the manifest weight of the

                                             -9-
373 (Fla. 2d DCA 2015). Although a trial judge enjoys broad discretion to grant a new

trial under the manifest weight ground, that discretion is neither absolute nor

unreviewable. See Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309, 1314 (Fla.

1986) ("A trial court's discretion, while broad, is not unbridled."). A trial judge is not free

to behave as a super-juror by disregarding a jury's verdict simply because the judge

would have rendered a different one had it been the judge's choice to make. See

Brown v. Estate of Stuckey, 749 So. 2d 490, 495 (Fla. 1999); Phar-Mor of Fla., Inc. v.

Steuernagel, 550 So. 2d 548, 550 (Fla. 2d DCA 1989). Rather, a trial judge's discretion

is properly exercised only when the evidence is "manifestly weighted to one side or the

other." Phar-Mor, 550 So. 2d at 550 (emphasis added); see also State Farm Mut. Auto.

Ins. Co. v. Caboverde, 65 So. 3d 46, 46 (Fla. 3d DCA 2011) ("Where the 'evidence was

not manifestly weighted to either side,' a trial judge's decision to grant a new trial may

be reversed." (quoting Hernandez v. Feliciano, 890 So. 2d 401, 404 (Fla. 5th DCA

2004))). The trial judge's discretion is thus not freewheeling but is instead a "check

against a jury that has reached an unjust decision on the facts." Stuckey, 749 So. 2d at

495.

              In deciding whether the evidence manifestly weighs against the verdict,

the trial court must examine all of the evidence—giving consideration to its weight and

credibility. See Van v. Schmidt, 122 So. 3d 243, 260 (Fla. 2013); Smith v. Brown, 525

So. 2d 868, 869 (Fla. 1988). If it decides to order a new trial, its order must state the

reasons why so that its decision can be reviewed on appeal in a meaningful way. See

Fla. R. Civ. P. 1.530(f); Stuckey, 749 So. 2d at 497-98. If the trial court has fulfilled



evidence was the primary ground argued below, the only ground argued by the parties
on appeal, and the only one that would potentially apply in this case.

                                             - 10 -
these functions, we will ordinarily review its order only to see if the trial court abused its

discretion—making reversal proper only if reasonable people could not disagree that the

trial court got it wrong—out of deference to the trial court's superior ability to recall,

review, and evaluate what happened at the trial. See Van, 122 So. 3d at 253-54 (citing

E.R. Squibb & Sons, Inc. v. Farnes, 697 So. 2d 825, 826-27 (Fla. 1997)).

              If the trial court's order is based on an error of law, however, we do not

afford it that kind of deference because the trial court's ability to consider and resolve

legal issues is not superior to our own. See Van, 122 So. 3d at 258 (quoting Tri-Pak

Mach., Inc. v. Hartshorn, 644 So. 2d 118, 119-20 (Fla. 2d DCA 1994)); Wal-Mart Stores,

Inc. v. Wittke, 202 So. 3d 929, 931 (Fla. 2d DCA 2016). Accordingly, "an appellate

court properly applies a de novo standard of review to a trial court's conclusions of law

in an order granting a new trial based on the manifest weight of the evidence, giving no

deference to the trial court's legal conclusions." Van, 122 So. 3d at 246.

              Here, the trial court's stated ground for granting a new trial shows that it

applied an incorrect legal standard to Ms. Shontz's motion. The reason it gave was that

its recollection of Mr. Bozick's testimony about the accident differed from the statements

in the Meyerses' response to the new trial motion. It granted a new trial, in substance,

because it thought one witness testified differently than a party said he did. That is not

the exercise the correct legal standard requires a trial court to conduct. And nothing in

the order or elsewhere in our record suggests that the trial court here actually performed

the function the standard requires—namely, to consider all of the evidence, including its

weight and credibility, and to decide whether it manifestly weighed in Ms. Shontz's

favor. The trial court's order was thus premised on an error of law, and we therefore

owe no deference to its decision to grant a new trial. Cf. Collett v. State, 28 So. 3d 224,

                                             - 11 -
225-26 (Fla. 2d DCA 2010) (reversing judgment in criminal case when, in denying a

motion for new trial, the trial court applied an incorrect "sufficiency of the evidence"

standard instead of the correct "contrary to the law or weight of the evidence" standard);

Geibel v. State, 817 So. 2d 1042, 1044-45 (Fla. 2d DCA 2002) ("[A] trial court's failure to

apply the correct legal standard to a motion for new trial is a legal error subject to de

novo review.").

              Two aspects of the trial court's order make the point clear. The first is that

by relying solely on a discrepancy in recollection about unspecified testimony by a

single witness, the order necessarily implies that the trial court did not consider the

totality of the evidence on the question of whether Ms. Meyers was negligent.7 Mr.

Bozick was, of course, not the only witness to testify about the circumstances under

which the accident happened. Ms. Meyers also testified, and her testimony supported

the defense theory that the accident happened not because she was negligent, but

because Mr. Shontz suddenly changed lanes leaving her without room to stop. Mr.

Shontz testified as well, and he said, among other things, that he could not remember

whether he changed lanes and that Ms. Meyers stated at the scene, consistent with her

theory at the trial, that Mr. Shontz cut her off. Furthermore, Mr. Bozick's testimony

concerning the amount of time that passed between the Shontzes' car coming to a stop

and the accident was shifting—ranging between as few as two seconds and as many as

seven. The trial court's order reflects that it thought Mr. Bozick testified differently than

argued by the Meyerses in some respect and not that it engaged in the analysis of the



              7Infairness to the trial court, there are respects in which the Meyerses'
response to the new trial motion misstates or exaggerates Mr. Bozick's actual
testimony.

                                            - 12 -
trial evidence that the correct legal standard requires. See Smith, 525 So. 2d at 870

("[T]he trial judge must necessarily consider the credibility of the witnesses along with

the weight of all of the other evidence. The trial judge should only intervene when the

manifest weight of the evidence dictates such action." (citation omitted)).

              Ms. Shontz argues that all of this is academic because she gets the

benefit of a presumption that Ms. Meyers was negligent because she was the rear

driver. And it is doubtless true that "where a defendant runs into the rear of plaintiff's

car while plaintiff is stopped for a traffic light or at an intersection, there is a presumption

of negligence of the defendant." Birge v. Charron, 107 So. 3d 350, 359 (Fla. 2012)

(quoting Bellere v. Madsen, 114 So. 2d 619, 621 (Fla. 1959)). But the presumption is a

rebuttable presumption affecting only the burden of production. As the supreme court

has explained,

              where a set of facts is produced that "fairly and
              reasonably tends to show" that the presumption is
              misplaced or that the "real fact is not as presumed,"
              the presumption is rebutted and all issues of disputed
              fact regarding negligence and causation should be
              submitted to the jury to make a finding of fault without
              the aid of the presumption.

Birge, 107 So. 3d at 360 (quoting Eppler v. Tarmac Am., Inc., 752 So. 2d 592, 594, 595-

96 (Fla. 2000)). Thus, "where evidence is produced from which a jury could conclude

that the front driver in a rear-end collision was negligent in bringing about the collision,"

the question of negligence should be submitted to the jury without regard to the

presumption. Cevallos v. Rideout, 107 So. 3d 348, 349 (Fla. 2012).

              Assuming without deciding that the sufficiency of the evidence to rebut the

presumption is within the direct scope of our review in this appeal, we have little

difficulty concluding that the evidence was sufficient here—at least for the purposes of

                                             - 13 -
considering whether the trial court's legal error in addressing the motion for new trial

was harmless in light of Ms. Shontz's claimed entitlement to an evidentiary presumption

that might render its error inconsequential.8 Florida courts, including our own, have

recognized that evidence of an unexpected lane change may be sufficient to rebut the

presumption of rear-driver negligence. See Jiminez v. Faccone, 98 So. 3d 621, 624

(Fla. 2d DCA 2012); Alford v. Cool Cargo Carriers, Inc., 936 So. 2d 646, 649-50 (Fla.

5th DCA 2006). Here, Ms. Meyers testified that the Shontzes' car suddenly changed

lanes as she approached the intersection leaving her without sufficient room to stop,

which is consistent with what Mr. Shontz testified she said at the scene. Depending on

one's interpretation, aspects of Mr. Bozick's testimony are consistent with Ms. Meyers's

version of events. That evidence, if credited by a jury, would fairly and reasonably tend

to show that Ms. Meyers was not negligent. The trial court submitted the case to the

jury on that and other evidence, and the jury had the opportunity to assess it. The trial

court's job on Ms. Shontz's motion for new trial thus was to determine whether the

manifest weight of the evidence was that Ms. Meyers was not negligent. The trial court

focused solely on its recollection of Mr. Bozick's testimony and, in so doing, failed to

make the legally correct inquiry.

              The second facet of the trial court's order that shows that it failed to apply

the correct legal standard to Ms. Shontz's motion for new trial is that the order explicitly

says that the trial court did not consider the issue of causation. The special

interrogatory upon which the jury decided the case asked both whether Ms. Meyers was


              8The sufficiency of the evidence to rebut the presumption was litigated by
way of Ms. Shontz's motion for directed verdict at trial. The trial court denied the motion
and allowed the issue of negligence to be decided by the jury. Ms. Shontz has not
taken a cross-appeal raising the propriety of that decision.

                                           - 14 -
negligent and whether any negligence by Ms. Meyers was a legal cause of loss to Ms.

Shontz. As a matter of logic, then, the jury was entitled to decide the case in the

Meyerses' favor on the basis of negligence, causation, or both. No one knows how the

jury sliced the onion on these two issues because both were lumped into a single

question. What that means here is that the legal standard governing Ms. Shontz's new

trial motion—which mandates consideration of whether the verdict is against the

manifest weight of the evidence—required the trial court to consider not only the

evidence on the issue of negligence, but also the evidence on the issue of causation.

See, e.g., Hernandez v. Gonzalez, 124 So. 3d 988, 990 (Fla. 4th DCA 2013) (affirming

order denying new trial where negligence was conceded and causation was disputed

but where the jury answered a special interrogatory incorporating both issues in the

negative). By deciding that it did not need to consider causation at all, the trial court

again applied the wrong legal standard to Ms. Shontz's motion for a new trial.

              The trial court's mistake might be attributed to imprecision in identifying

operative legal concepts in the new trial order. The trial court instructed the jury on

"negligence" (i.e., whether Ms. Meyers breached a duty of care) and "legal cause" (i.e.,

whether Ms. Meyers's breach of duty, if any, caused Ms. Shontz any injury) and asked

the jury to answer a single interrogatory directed to both issues. For a defendant to be

liable on a negligence claim, of course, there must be both negligence and causation.

See Whritenour v. Thompson, 145 So. 3d 870, 873 (Fla. 2d DCA 2014) (stating that the

"elements of a negligence action are the existence of a duty, a breach of the duty, a

causal connection between the conduct and the resulting injury, and actual damages");

see also McCain v. Fla. Power Corp., 593 So. 2d 500, 502-03 (Fla. 1992) ("As is

obvious, a defendant might be under a legal duty of care to a specific plaintiff, but still

                                            - 15 -
not be liable for negligence because proximate causation cannot be proven."); Schwartz

v. Wal-Mart Stores, Inc., 155 So. 3d 471, 473 (Fla. 5th DCA 2015) ("Causation is an

essential element of negligence, and a plaintiff is entitled to recover only for injury, loss,

or damage caused by a defendant's negligence."). Mr. Bozick's testimony went solely

to the issue of Ms. Meyers's alleged negligence. Yet in granting a new trial based

exclusively on its recollection of that testimony, the trial court said that it was

considering evidence of "liability" and ordering a new trial on that basis. The apparent

assumption in the trial court's order is that proof that Ms. Meyers was negligent is all

that was required to prove liability in this case, and the rest was just a question of

determining the amount of damages caused by her negligence. But even if the jury had

found that Ms. Meyers was negligent, she would still not be liable to Ms. Shontz if the

jury also found that Ms. Meyers's negligence was not the cause of any of the injuries

Ms. Shontz claims to have suffered. Thus, to order a new trial on the basis that the

"liability" portion of the verdict was against the manifest weight of the evidence, the trial

court had to inquire into the manifest weight of the evidence on the issue of causation

because causation was something Ms. Shontz had to prove to establish "liability."

              At oral argument, Ms. Shontz argued that the verdict could not have been

based on causation or, alternatively, that a verdict on causation would incontestably be

against the manifest weight of the evidence because, at a minimum, Ms. Shontz

incurred bills for diagnostic testing as a result of the accident. And to be sure,

diagnostic testing that is reasonably necessary to determine whether an accident

caused a plaintiff's injuries would ordinarily be considered a form of loss caused by the

accident. See Blanford v. Polk County, 410 So. 2d 667, 669 (Fla. 2d DCA 1982); see

also Sparks-Book v. Sports Auth., Inc., 699 So. 2d 767, 768 (Fla. 3d DCA 1997)

                                             - 16 -
(reversing order denying motion for new trial where "[a]t a minimum, the plaintiff was

entitled to recover for those medical expenses incurred for any diagnostic testing which

was reasonably necessary to determine whether the accident caused her injuries"). But

the courts have also recognized an exception to this general rule when "sufficient

evidence is presented at trial regarding certain factors, including but not limited to pre-

existing injuries with extensive treatments, lack of candor with treating physicians,

videotapes that show actual physical capabilities, and expert medical opinions which

conflict as to causation." Hernandez, 124 So. 3d at 991-92; see also Finkel v. Batista,

202 So. 3d 913, 916 (Fla. 3d DCA 2016) ("Examples of such exceptions include lack of

candor with treating physicians and conflicting medical opinions on whether the accident

caused any injury."); Schwartz, 155 So. 3d at 473-74 (same). Thus, in Department of

Transportation v. Rosario, 782 So. 2d 927, 928 (Fla. 2d DCA 2001), we reversed an

order granting a new trial to a plaintiff claiming back injuries in an automobile negligence

case—notwithstanding the fact that the plaintiff had incurred expenses for diagnostic

testing—where there was evidence that the plaintiff had back problems and extensive

treatments predating the accident, the expert testimony on whether the accident caused

the back injuries was in conflict, there was evidence that the plaintiff had not disclosed

prior treatments and a prior accident to his treating physicians, and a videotape entered

into evidence depicted his on-the-job capabilities.

              There is some substantially similar evidence in this case. There was a

history of prior back problems, a prior automobile accident, prior work-related incidents,

and years of treatment for issues related to the back. The testimony of the parties'

medical experts as to whether the accident caused injuries to Ms. Shontz's back was in

conflict. There was evidence that certain incidents and treatments were not disclosed to

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Ms. Shontz's treating physicians. And there was evidence that certain incidents and

treatments were not disclosed in answers to interrogatories that called for those

disclosures. Thus, the exception to the general rule was in play in this case, and the

jury could reasonably have decided in light of these facts that a finding of no causation

was appropriate.9 See Schwartz, 155 So. 3d at 474 (holding that the exception was

implicated where expert testimony on the question of causation was in conflict).

              Ms. Shontz also pointed out at oral argument that the defense medical

expert testified that although the accident did not cause Ms. Shontz's back injuries, it did

cause soft-tissue injury for which some medical treatment was appropriate. But that fact

did not make it impossible for the jury to find that there was no causation. To begin

with, the defense expert's testimony was based on his belief that Ms. Shontz's

complaints about her postaccident symptoms were truthful. But here, there was

evidence from which a jury might have inferred that Ms. Shontz's complaints were not

truthful—including her history of preexisting back problems and her nondisclosure of

certain other incidents that might be expected to result in injury to the back—which in

turn could have led it to a finding of no causation. See, e.g., Finkel, 202 So. 3d at 916

(holding that a defense expert's admission that diagnostic testing was necessary was

based on an assumption the plaintiff's complaints were truthful but that "[i]t was within

the province of the jury to find that [the plaintiff] was not truthful"). Furthermore, the

theory that the accident caused Ms. Shontz a soft-tissue injury is a different theory from


              9In view of our conclusion on this issue, we need not consider the
Meyerses' additional argument that because the verdict form, by agreement, did not ask
the jury to determine whether Ms. Shontz reasonably incurred diagnostic testing
expenses in the event it found adversely to her on the issue of causation, Ms. Shontz is
precluded from revisiting the jury's verdict as to that issue. See Schwartz, 155 So. 3d at
474; Hernandez, 124 So. 3d at 992.

                                            - 18 -
the one Ms. Shontz presented at trial. At trial, Ms. Shontz's theory of causation was that

the accident caused an injury to her spine or aggravated a preexisting condition in her

spine. On this record, it is possible that the jury rejected that theory, and if it did so, we

cannot, at least so far as our review of this order is concerned, fault the jury for not

considering a different theory of causation that Ms. Shontz never asked it to consider.

              Having determined that the trial court applied the wrong legal standard to

Ms. Shontz's motion for a new trial, we must consider whether to remand for

reinstatement of the judgment or for the trial court to reconsider the motion for new trial.

Where, as here, the trial court's mistaken decision on a new trial motion hinges on an

error of law, the dispositive question is "whether the trial court would have granted a

new trial but for the error of law." Van, 122 So. 3d at 260; see also Wittke, 202 So. 3d

at 931. If the answer to that question is no, we remand for reinstatement; if we cannot

tell what the trial court would have done but for the error, we remand for

reconsideration. Van, 122 So. 3d at 260. On our cold record, and in view of the

conflicts in the evidence bearing both on negligence and causation, this looks like a

case where it may be hard to say that the manifest weight of the evidence was with

either party. We were not at the trial, however, and "are unable to ascertain from [our]

review of the record whether the trial court would have reached the same result had it

focused on the evidence and considered the credibility of witnesses," which is what the

manifest weight of the evidence standard requires. Id. at 261; see also Buitrago v.

Feaster, 157 So. 3d 318, 320 (Fla. 2d DCA 2014) (remanding for reconsideration where

the trial court failed to apply the manifest weight of the evidence standard to an

allegedly inadequate award of noneconomic damages). We therefore give the trial

court the opportunity to reconsider the motion.

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- 20 -
                                             III.

              Our decision today should not be understood as insisting that an order

granting a new trial on the ground that the verdict was against the manifest weight of the

evidence contain specific magic words to avoid a reversal. This is just a case where the

trial court's order itself demonstrates that it applied an incorrect legal standard to a new

trial decision. Cf. Geibel, 817 So. 2d at 1045 (explaining, in a criminal case, that "a trial

court is not compelled to use 'magic words' when ruling on a motion for a new trial" but

that "the ruling should demonstrate that the proper standard was applied to the

motion"). For the reasons we have explained, we reverse the order granting a new trial

and remand the case to the trial court with instructions to reconsider the motion for new

trial and conduct such further proceedings as are consistent with this opinion.

              Reversed and remanded with instructions.


MORRIS and LUCAS, JJ., Concur.




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