                                      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,

                                          2
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.

                                            3
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

                                          4
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




                                          5
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




                                         6
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.




                                         7
      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
                                          8
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.
                                               9
      (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


                                         10
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.




                                         11
      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.”




                                          12
      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




                                         13
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.”




                                         14
      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.




                                        15
      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

                                          16
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.




                                        17
      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.




                                         18
