New 5th DCA Opinion on Pre-existing Injuries, Diagnostic Testing: State Farm v. Ferranti
In a recent September 28, 2018 opinion reversing a summary judgment and attorney fee award and remanding for a new trial, the Florida Fifth District Court of Appeals in State Farm v. Ferranti Case No. 5D16-3980 found that even though the Plaintiff voluntarily dismissed damages related to lower back injuries, the trial Court improperly excluded evidence of those injuries. The appellate court cited in its holding extensively to a 4th DCA case, JVA Enterprises, I, LLC v. Prentice, 48 So. 3d 109 (Fla. 4th DCA 2010),and reaffirmed the principle that “[a] preexisting condition similar to that suffered in a later accident is relevant to the jury’s determination of a plaintiff’s claim of permanency and for pain and suffering” and it is an abuse of discretion to exclude this evidence from the jury.
The Ferranti opinion is also noteworthy as it points out an important distinction in another 4th DCA case regarding recovery of medical expenses for diagnostic testing, Pack v. Geico General Insurance Co., 119 So. 3d 1284 (Fla. 4th DCA 2013). In Ferranti, the Plaintiff moved for partial summary judgment and relied upon Pack for the proposition that “Generally, a plaintiff may recover the medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused her injuries. This is true whether or not the jury finds the accident to be the legal cause of the injury.” The trial court granted Ferranti’s partial summary judgment on the entire issue of causation – not just the diagnostic expenses – finding that causation was established as a matter of law because the tortfeasor was a legal cause of “some” loss, injury or damages. The appellate court in Ferranti found this to improperly remove from the jury’s consideration whether the 2010 accident caused the injuries. The appellate court explicitly limited the Pack holding to situations where diagnostic expenses are recoverable even if the jury finds the accident was not the legal cause of the plaintiff’s injury.
This case is very important as Plaintiff’s lawyers often attempt to drop claims in an effort to prevent the Defense from discussing previous injuries. This will no longer be allowable and all of the Plaintiff’s previous injuries, within reason will be discussed at trial.