       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

         RAUL SANCHEZ and CARMEN DE JESUS SANTANA,
                         Appellants,

                                    v.

                            BILLY MARTIN,
                               Appellee.

                             No. 4D17-1731

                             [June 6, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. CACE14-
016458 (09).

  Paul L. Nettleton of Carlton Fields Jorden Burt, P.A., Miami, for
appellants.

    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen &
Littky-Rubin, LLP, West Palm Beach, and Jeff S. Abers of Fazio, DiSalvo &
Abers, P.A., Fort Lauderdale, for appellee.

DAMOORGIAN, J.

    Raul Sanchez and Carmen De Jesus Santana (“Defendants”) appeal the
judgment entered against them following a jury trial in Billy Martin’s
(“Plaintiff”) automobile negligence action. Finding merit in Defendants’
argument that the trial court erred in instructing the jury on aggravation
of a preexisting condition, we reverse.

   In 2014, a county public transit bus collided with a vehicle driven by
Defendant Santana after she pulled in front of the bus. Plaintiff, who was
a passenger on the bus, fell from his seat as a result of the impact.
Complaining of back pain, Plaintiff was taken by ambulance to a hospital,
evaluated, and discharged that same day. In the months thereafter,
Plaintiff sought medical treatment for lower back pain and stiffness which
he claimed was caused by the accident. Following an evaluation and a
series of x-rays, which revealed a moderate amount of arthritis and some
degenerative disc disease, Plaintiff was initially diagnosed with a lower
back sprain and began receiving physical therapy. Plaintiff eventually
underwent an MRI which indicated that he suffered from diffuse idiopathic
skeletal hyperostosis (“DISH”). The MRI also purportedly showed that
Plaintiff had a three-level disc herniation in his lower back.

    At trial, Plaintiff’s only theory of liability was that Defendant Santana’s
negligence caused the accident and that the impact of the accident caused
the three-level disc herniation in his lower back. Although Defendants
admitted negligence, they disputed both causation and damages.
Specifically, Defendants argued that the accident did not cause any of the
alleged injuries and that Plaintiff’s subjective complaints of pain, stiffness,
and spasms were related to his various preexisting degenerative
conditions.

   In support of his theory, Plaintiff presented the testimony of Dr. Hinkes,
the orthopedic surgeon who treated him after the accident. Dr. Hinkes
testified that Plaintiff had three herniated discs in his lower back and that
within a reasonable degree of medical certainty the injury was caused by
the accident. In arriving at this conclusion, Dr. Hinkes relied on his
records, Plaintiff’s MRI, and Plaintiff’s representation that he did not have
back problems prior to the accident. Dr. Hinkes conceded, however, that
there was no way of conclusively determining whether the herniation of
those three discs occurred before, during, or after the accident by looking
at the MRI alone. On cross-examination, Dr. Hinkes acknowledged that
the MRI indicated Plaintiff suffered from DISH and that Plaintiff had this
condition for a long time. He also acknowledged that over time, DISH can
cause spasms, pain, stiffness, and various complications. Dr. Hinkes
testified, however, that Plaintiff’s DISH was located above the three
herniated discs. Dr. Hinkes did not testify that Plaintiff’s reported injuries
from the accident caused an aggravation or activation of a preexisting
condition.

   Defendants, in turn, presented the testimony of Dr. Garcia, the
orthopedic surgeon who performed Plaintiff’s compulsory medical
examination, and Dr. Raskin, the diagnostic radiologist who reviewed
Plaintiff’s MRI. Dr. Garcia opined that if Plaintiff did sustain an injury
from the accident, it was a non-permanent strain/sprain to the lower back.
Dr. Garcia further opined that the MRI showed no objective findings that
would indicate recent trauma, but rather showed findings consistent with
advanced degenerative changes stemming from Plaintiff’s DISH, arthritis,
and degenerative disc disease. Moreover, as to the three-level disc
herniation testified to by Dr. Hinkes, Dr. Garcia explained that any such
herniation was caused over the course of several years by Plaintiff’s disc
osteophyte complex and not by an acute traumatic event.


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   During cross-examination, Plaintiff’s counsel asked Dr. Garcia whether
the accident could have aggravated any of Plaintiff’s preexisting
conditions. Dr. Garcia responded that there was “no evidence that it
aggravated the preexisting condition” and that “the indications of spasm
in the neck and the lower back would be most consistent with a
sprain/strain, not with an aggravation of a preexisting condition.”
Plaintiff’s counsel thereafter generally asked whether having a preexisting
condition could make a person more susceptible to injury, and Dr. Garcia
responded that it could.

   Dr. Raskin testified that the MRI showed no traumatic disc herniation.
Rather, consistent with Dr. Garcia’s assessment, Dr. Raskin opined that
the MRI showed that Plaintiff had disc osteophyte complex, DISH, and
bone calcifications, conditions which take years to develop and which
could not have been caused by the accident. During cross-examination,
Plaintiff’s counsel asked Dr. Raskin whether trauma from an automobile
accident could either aggravate or cause a spine problem, and Dr. Raskin
responded that it could. Unlike Dr. Garcia, however, Dr. Raskin was not
specifically asked whether the accident aggravated or activated any of
Plaintiff’s preexisting conditions.

   During the charge conference, Plaintiff requested the following
aggravation of preexisting condition instruction:

      If you find that [Defendant Santana] caused a bodily injury,
      and that the injury resulted in an aggravation of an existing
      disease or physical defect or activation of a latent disease or
      physical defect, you should attempt to decide what portion of
      [Plaintiff’s] condition resulted from the aggravation or
      activation. If you can make that determination, then you
      should award only those damages resulting from the
      aggravation or activation. However, if you cannot make that
      determination, or if it cannot be said that the condition would
      . . . exist apart from the injury, then you should award
      damages for the entire condition suffered by [Plaintiff].

    Defendants objected, arguing that the evidence and arguments
presented at trial did not support the instruction and that the instruction
would serve only to confuse or mislead the jury. Plaintiff countered that
it was “an alternative way of looking at the evidence.” The trial court gave
the instruction over objection and the jury ultimately awarded Plaintiff in
excess of $1.5 million for his past and future medical expenses, future lost
earnings, and pain and suffering. This appeal follows.


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   It is well established that “[i]nstructions to the jury must be predicated
upon facts in proof. Therefore, it is, of course, improper to charge on an
issue where either no material evidence or no evidence at all has been
submitted.” Winn-Dixie Stores, Inc. v. Nall, 302 So. 2d 781, 781 (Fla. 3d
DCA 1974); see also Carmona v. Carrion, 779 So. 2d 337, 339 (Fla. 2d DCA
2000) (“A trial court cannot give a particular jury instruction on an issue
unless material record evidence supports that instruction.”).

    The Second District’s holding in Carmona is instructive. In that case,
the plaintiff sued the defendants for the injuries to her neck and back
following an automobile accident. Carmona, 779 So. 2d at 338. At trial,
it was revealed that the plaintiff suffered a work-related injury years prior
and that the symptoms she complained of following the automobile
accident at issue were similar to those caused by the work-related injury.
Id. The plaintiff’s expert, however, opined that the injuries for which the
plaintiff sought compensation were caused by the automobile accident and
were unrelated to the prior work-related injury. Id. The defendants’
medical expert agreed that the plaintiff’s “current complaints were not
related to the earlier work-related injury.” Id. Nonetheless, the plaintiff
requested that the jury be instructed on aggravation of preexisting injury.
Id. Over objection, the court gave the instruction and the jury ultimately
returned a verdict in favor of the plaintiff. Id. at 338–39. The appellate
court reversed, holding that the trial court erred in giving the instruction
because the record contained no material evidence supporting such an
instruction. Id. at 339. To the contrary, the court pointed out that “the
jury heard specific, direct evidence from both [the plaintiff’s] expert and
the [defendants’] expert that [plaintiff’s] injuries were in no way related to
the prior incident.” Id. The court also found that the error was not
harmless because, after reviewing the evidence and the jury’s verdict, it
could not “determine whether the aggravation instruction influenced the
jury in deciding the amount of damages to be awarded.” Id.

   In the present case, just as in Carmona, the jury heard specific, direct
evidence from both Plaintiff and Defendants’ experts that any injuries
Plaintiff may have sustained from the accident did not cause an
aggravation or activation of a preexisting condition.           Specifically,
Dr. Hinkes testified that the three-level disc herniation was caused by the
accident and that the DISH Plaintiff had was located above the three
herniated discs, thus implying that the injury and preexisting condition
were unrelated. Dr. Garcia, in turn, testified that the disc osteophyte
complex in the lower back predated the accident and that Plaintiff’s
subjective complaints of lower back pain and spasms were “consistent with
a sprain/strain, not with an aggravation of a preexisting condition.”
Likewise, Dr. Raskin testified that the MRI showed no traumatic injury.

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   Simply put, the record in this case contains no material evidence
supporting the aggravation instruction. In fact, Plaintiff readily admits in
his brief that he “has never believed or suggested that his injuries came
from an aggravation of a pre-existing condition.” Nonetheless, Plaintiff
maintains that by introducing evidence of his preexisting conditions,
Defendants provided the material record evidence needed to support the
instruction. We disagree. Defendants merely presented evidence of the
preexisting conditions to rebut Plaintiff’s contention that the accident
caused him any permanent injury. In other words, evidence of Plaintiff’s
preexisting conditions was introduced to show “a continuing course of
conduct over many years from which the jury could reasonably conclude
that [Plaintiff’s] condition immediately prior to trial was a natural result of
the development of a disease which was engendered or began many years
ago.” Llompart v. Lavecchia, 374 So. 2d 77, 80 (Fla. 3d DCA 1979).

   Based on our review of the record, we cannot say that there was no
reasonable possibility that the erroneously given instruction did not
contribute to the verdict. See Special v. W. Boca Med. Ctr., 160 So. 3d
1251, 1265 (Fla. 2014). As causation was inextricably entwined with the
nature and extent of the damages in this case, we reverse and remand for
a new trial on the issue of causation and damages only. See Owen v.
Morrisey, 793 So. 2d 1018, 1026 (Fla. 4th DCA 2001) (holding that in
situations where “causation is inextricably entwined with the extent and
nature of the damages,” on remand “the case should be treated as one in
which the trial court has directed a verdict on negligence and it remains
for the jury to determine what damages, permanent or non-permanent,
were caused by the negligence”); see also Hernandez v. Gonzalez, 124 So.
3d 988, 990 (Fla. 4th DCA 2013) (recognizing that a defendant can admit
negligence while disputing causation and damages).

    Defendants also argue that Plaintiff’s counsel made several improper
comments during closing argument. Although we need not reach the
merits of this issue in light of our disposition on the instruction issue, we
caution Plaintiff’s counsel “to be vigilant in crafting closing arguments that
fall within the confines of permissibility.” Philip Morris USA, Inc. v. Tullo,
121 So. 3d 595, 602 (Fla. 4th DCA 2013).

   Reversed and remanded for a new trial.

FORST and KLINGENSMITH, JJ., concur.

                             *        *         *


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Not final until disposition of timely filed motion for rehearing.




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