Wisekal v. Laboratory Corporation of America et al

Filing 326

ORDER granting 301 Defendants' Motion for Remittitur or Alternatively for New Trial. Signed by Judge Daniel T. K. Hurley on 7/28/2014. (lr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-80806-CIV-HURLEY
JOHN WISEKAL, as Personal Representative
of the ESTATE OF DARIAN WISEKAL,
plaintiff,
vs.
LABORATORY CORPORATION
OF AMERICA HOLDINGS
and GLENDA C. MIXON,
defendants.
____________________________________/
ORDER GRANTING DEFENDANTS’ MOTION FOR REMITTITUR
OR ALTERNATIVELY FOR NEW TRIAL
THIS CAUSE is before the Court on the defendants’ motion for remittitur, or in the
alternative, for new trial, pursuant to § 768.74, Fla. Stat. and Fed. R. Civ. P. 59 [ECF 301], the
plaintiff=s response in opposition [ECF 315] and the defendant=s reply [ECF 321].
I. Background
On April16, 2014, the jury returned its verdict in the above-captioned wrongful death action,
awarding the following categories of economic and non-economic damages:
Lost net accumulations to the Estate:

$ 87,200.00

Lost Past and Future Support and Services:

$ 261,000.00 per claimant

Non-economic damages to John Wisekal:
(surviving spouse of fourteen year marriage)

$ 5,000,000.00

Non-economic damages to Baylor Wisekal:
(Surviving child age 13)

$ 7,500,000.00

Non-economic damages to Bianca Wisekal:
(surviving child age 10)

$ 7,500,000.00

The jury further determined that the plaintiff=s decedent, Darian Wisekal, was also negligent,
and apportioned 25% of the contributing fault for the loss to the plaintiff. After applying the
comparative negligence factor, on April 21, 2014, the court entered final judgment in favor of
plaintiff in the amount of $15,816.699.11, jointly and severally, against the defendants.
On July 28, 2014, the court denied defendants’ post-trial motion for new trial and renewed
motion for judgment as a matter of law. The court now turns its inquiry to the defendants’ current
motion for remittitur of both the economic and non-economic damage awards, or alternatively, for a
new trial on damages.
Turning, first, to the defendant’s challenge to the economic damages awards, the court
concludes that the evidence adduced at trial reasonably supports the jury’s verdict on these
components of loss, and summarily denies the defendants’ challenge to this aspect of the verdict.1
The court’s analysis turns, next, to the jury’s non-economic damage award. Here, the
defendants argue that the jury’s total award of $20,000.000.00 for intangible damages is so excessive
that it could only have been the result of passion or prejudice, or consideration of improper elements
of damage, and further that the amount awarded bears no reasonable relationship to the amount of
damages proved, requiring the court to substantially reduce the award, or alternatively, vacate the
judgment and order a new trial.
The court does not agree that the verdict was the result of passion or prejudice. To the
contrary, the court was impressed by and acknowledges the extraordinary effort that was expended

1

On the challenge to the award for net accumulations of the Estate of Darian Wisekal, the defendants contend there was
insufficient evidence of a consistent work history to justify the award derived by the jury. However, the record contained
evidence that Mrs. Wisekal was employed in the past, and that she brought significant income in to her family through
creative efforts at employment outside of the home. The jury was entitled to consider these past efforts at employment in
projecting Mrs. Wisekal’s future ability to earn money, had she lived her normal lifespan, as well as the likelihood that
Mrs. Wisekal likely would have been able to return to the work force on a full time basis and save additional monies as
her children grew and enjoyed increasing independence from their parents.

by the jurors in attendance in this case, as reflected in their obvious attentiveness throughout the
entirety of the trial proceedings and their diligence in the deliberative process. However, the court
does conclude that the amount of non-economic damages awarded by the jury was excessive and
unreasonable in relationship to the amount of damages proved and was not logically supported by the
evidence presented, and for these reasons, as more particularly detailed below, the court has
determined to order a remittitur of the non-economic awards, failing acceptance of which the case
shall be resubmitted to trial by jury on the issues of damages only.
II. Discussion
Under Florida law, an award of non-economic damages must bear some reasonable relation to
the facts, the status of the parties, and the philosophy and general trend of prior decisions in similar
cases. Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir. 2008), citing Johnson v. United States,
780 F.2d 902 (11th Cir. 1986) (quoting Fla. Dairies Co. v. Rogers, 119 Fla. 451, 161 So.85, 88 (Fla.
1935)). In reviewing the general trend of decisions in similar cases, the court should generally limit
its inquiry to cases where pain and suffering awards were upheld against excessiveness challenges in
similar scenarios, with a particular focus on cases drawn from the state appellate court having
jurisdiction over the location where the tort in question occurred. Id.
Under Florida statutes, the court is further obligated to consider the following criteria in
determining whether an award is excessive or inadequate in light of the facts and circumstances
presented to the trier of fact: (1) whether the amount awarded is indicative of prejudice, passion, or
corruption on the part of the trier of fact; (2) whether it appears that the trier of fact ignored the
evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of
damages recoverable; (3) whether the trier of fact took improper elements of damages into account or
arrived at the amount of damages by speculation and conjecture; (4) whether the amount bears a

reasonable relation to the amount of damages proved and the injury suffered, and (5) whether the
amount awarded is supported by evidence and is such that it could be adduced in a logical manner by
reasonable persons. § 768.74 (5), Fla. Stat. (2013).
In determining the reasonableness of a verdict, the court applies an objective standard. If the
jury’s award is so extravagant as to shock the judicial conscience, or it is manifestly unsupported by
the evidence or indicates that the jury was influenced by passion, prejudice or other matters outside
the record, the court in its discretion may set aside the verdict. Citrus County v. McQuillin, 840
So.2d 343, 347 (Fla. 5th DCA 2003).
In this case, the defendants argue the jury’s non-economic damage awards were excessive
compared to awards sanctioned by Florida appellate courts for surviving minor children and spouses
in similar wrongful death cases, and that there is no evidentiary support for the extraordinarily large
non-economic damage awards made in this case. This court, charged with the obligation of “walking
a well-worn and clearly marked path paved by the Florida court that would have reviewed this
judgment if it had been rendered in a state court,” Bravo v. United States, 532 F.3d 1154, 1161-1162
(11th Cir.2008), agrees that the non-economic damage awards in this case were excessive under this
yardstick, and has accordingly determined to issue a remittitur order, or in the alternative, an order
for new trial on the issue of damages only.
At the outset, the court wishes to acknowledge the enormity of the loss suffered by the minor
children of Mrs. Wisekal, and their entitlement to recover a substantial amount of money in noneconomic damages to compensate them for mental pain and suffering resulting from the loss of their
mother’s support and companionship. Similarly, the court recognizes the genuine loss suffered by
the surviving spouse of Mrs. Wisekal, and his accompanying entitlement to non-economic damages.

While recognizing these real losses and entitlements, the court’s task here is to determine
whether each of the individual non-economic damage awards at issue in this case bears a reasonable
relationship to the evidence, and it begins this task with an examination of “a cold record without
being subjected to prejudice and bias that may be occasioned in the emotionally charged atmosphere
of a trial courtroom.” Bravo, supra at 1161 (quoting Seaboard Coast Line R. Co. v. McKelvey, 259
So.2d 777, 781 (Fla. 3d DCA), approved by, 270 So.2d 705 (Fla. 1972)). Further, under Bravo, the
court must perform this task by drawing heavily from non-economic damage awards made by juries
in similar wrongful death cases which were challenged on appeal for excessiveness and upheld by
the governing state appellate court, with particular focus on the appellate court which controls the
jurisdiction under which the tort at issue occurred. Having made this review here, the court
concludes that the award of non-economic damages to the survivors of Mrs. Wisekal in the total
amount of $20 million is excessive, and does “jar or shock the judicial conscience” of the court. Id.
The court’s conclusion is buttressed by the fact that $7.5 million individual awards to
surviving Wisekal children in this non-tobacco litigation context finds no precedent in Florida case
law, and is far in excess of challenged non-economic wrongful death damage awards which have
been sustained on appeal in the Fourth District Court of Appeal, the state appellate court governing
cases in this district, and other mid-appellate courts of appeal throughout the State of Florida. See
Bravo v. United States, 532 F.3d at 1162-63, and cases collected, supra.

The court further agrees

that the tobacco litigation cases cited by the plaintiff in effort to justify the jury’s verdict in this case
are not “similar” cases involving adequate comparators. Unlike the tobacco litigation surviving
spouses, many of which were beneficiaries of 30-year plus marriages, the Wisekal marriage existed
about 14 years before the death of Mrs. Wisekal, and towards the end it was clouded, at least briefly,
by private contemplations of divorce on the part of Mrs. Wisekal. Further, this case presents no

comparable element of aggravated liability as that which might predictably attach to tobacco cases
involving decades of industry suppression of vital consumer safety information in the name of
company profits.
Further, while the court does not in any way minimize the grievous loss suffered by the
surviving children of Mrs. Wisekal, it harbors a real concern that the emotionally charged
photograph of Mrs. Wisekal in a severely emaciated state, with her two minor children in attendance,
may have improperly influenced the jury to the point where the awards bore no reasonable
relationship to the evidence. In this respect, the court observes that the children did not testify at trial
regarding grief and pain caused by loss of their mother’s companionship, or how her loss had
affected their day-to-day lives. Rather, the plaintiff relied on the testimony of Mr. Wisekal, the
children’s father and surviving spouse of Mrs. Wisekal, to describe the closeness of the bond, which
he illustrated in part with a video of a family holiday where the jury could view the intimate
interaction between Mrs. Wisekal and her children directly. Mr. Wisekal also testified that the
children were afraid to sleep alone, or play outside alone since the loss of their mother, out of an
apparent fear of losing their remaining parent. While this evidence surely depicted a tender and
loving relationship between the decedent and her children, and a poignant grief which lingers with
the children in her absence, at heart it is evidence that the children suffered a grief common to all
children who endure the loss of a parent. There was no evidence of any physical or mental
abnormality or emotional impairment which the Wisekal children suffered due to the death of their
mother.
Thus, while it is impossible to point with precision to the cause of the excessive verdict on
behalf of the surviving minor children, the record suggests two possible influential factors. First, the
shocking contrast between the video-taped presentation of Mrs. Wisekal’s interaction as a loving,

vibrant, caring mother with her children in day–to-day life, juxtaposed against the jarring photo of a
bedridden Mrs. Wisekal in a near-death and severely emaciated state, surrounded by her two small
children. A second possible contributing factor may have been the ill-advised defense strategy of
attempting to portray the decedent as an essentially unemployable person addicted to prescription
pain medicines, carrying emotional issues and learning disabilities that prompted a sixteen-year
course of treatment by therapists, counselors and doctors for mental health problems. That is, the
court is deeply concerned that the defense strategy of using this personal, intimate information,
regarding a deceased woman who could not defend herself, may have influenced the jury to the point
of inflating the non-economic damage award beyond any reasonable relationship to the evidence of
damages presented.
With regard to the non-economic losses of a surviving spouse, under Florida law, evidence of
marital discord is probative of the extent of the survivor’s mental pain and suffering and loss of the
decedent’s companionship and society as a result of the wrongful death. Hiatt v. United States, 910
F.2d 737 (11th Cir. 1990) (upholding $100,000 award in non-economic damages to surviving wife
where record indicated that wife suspected husband of infidelities and couple had informally
separated for a period of time); Adkins v Seaboard Coastline R. Co., 351 So.2d 1088 (Fla. 2d DCA
1977) (evidence that decedent allegedly promised to marry paramour shortly prior to death was
probative of extent of surviving spouse’s mental pain and suffering).
In this case, there was evidence of marital distress, with specific evidence of Mrs. Wisekal’s
contemplation of divorce which was noted in the records of one of the doctors Mrs. Wisekal
consulted after the Wisekal family relocated from New Jersey, to Georgia and finally to Florida,
shortly prior to the time of Mrs. Wisekal’s cancer diagnosis. While Mr. Wisekal testified he was
unaware of any marital discord, this uncontradicted evidence was a highly relevant consideration --

one which does not appear to have been tempered into the jury’s assessment of Mr. Wisekal’s noneconomic damages. Further, there was no evidence that John Wisekal experienced an unusually
disruptive or pathological loss of a magnitude beyond that of any spouse who endures the premature
loss of his or her mate.
On this record, objectively reasonable persons could not conclude that the surviving children
were automatically entitled to $7.5 million each for the death of their mother, or that Mr. Wisekal as
surviving spouse was entitled to $5 million for the loss of his wife. With this, the court concludes
that the jury could only have reached its total $20 million non-economic damage award though
speculation or conjecture, or consideration of improper elements of damage, and that the award is
due to be remitted.
Recent Florida appellate decisions reviewing excessiveness of jury awards in the wrongful
death context -- outside of tobacco litigation -- buttress the court’s conclusion that the award in this
case is beyond the outer limits of reasonability, and that it is appropriately reduced to bring it in line
with the general trend in similar wrongful death verdicts sustained on appeal by state courts in this
district. See Bravo, supra, citing Glabman v De La Cruz, 954 So.2d 60, 62-63 (Fla. 3d DCA 2097)
(per curiam) (reversing as excessive $8 million in non-economic damages to parents of teenage girl
who died as a result of medical malpractice); Citrus County v McQuillin, 840 So. 2d 343, 347 (Fla.
5th DCA 2003) (sustaining $4.4 million verdict in non-economic damages to seven-year-old son of
woman killed in car accident, observing it to be “on the outer limits in size,” but not so excessive as
to require reduction); Kammer v Hurley, 765 So.2d 975 (Fla. 4th DCA 2000)(upholding $2.5 million
award to each parent for mental pain and anguish experienced in wrongful death of baby caused by
physician’s negligent crushing of skull just before birth); Walt Disney World Co. v. Goode, 501
So.2d 622 (Fla. 5th DCA 1986) (upholding $1 million for past and future pain and suffering to each

parent of a child who drowned on amusement park premises). While much higher verdicts have been
sustained in extraordinary cases involving unusually torturous injuries sustained in horrific accidents,
see e.g. General Motors Corp v. McGee, 837 So.2d 1010 (Fla. 4th DCA 2002)(upholding $30 million
non-economic damage award to parents who witnessed burning of trapped child and excruciating
medical treatment), this case does not fall in this genre of human misery, and in any event, is not
necessarily guided by a single outlier award sustained by the Florida state appellate court controlling
tort cases in this district.
For the above reasons, the court concludes that the non-economic damage awards made by
the jury in this medical negligence case, arising out of a faulty PAP smear interpretation, were far
greater than that which was reasonably supported by the evidence, and are “so extravagant” as to
“shock the judicial conscience.” The court further agrees with the defendants’ proposed remittitur of
$2,000,000 per surviving minor child, plus $1,000,000 for the surviving spouse, amounts which the
court finds appropriate in light of the facts and circumstances presented to the jury and the factors set
forth in § 768.74 (5), Florida Statutes.
It is accordingly ORDERED AND AJDUDGED:
1. The defendants’ motion for remittitur [ECF No. 301] is granted with respect to noneconomic damage awards only, and the respective awards of the survivors are reduced to the
following amounts: $2 million per surviving child, $1 million for the surviving spouse.
($5 million total aggregate award; $ 3.75 million total net award for non-economic damages
after reduction for comparative negligence) The defendants’ motion for remittitur is
otherwise denied.
2. The plaintiff has TEN (10) DAYS to file written acceptance or objection to this order of
remittitur. If the plaintiff agrees to the remitted amounts, the court shall enter amended final

judgment accordingly. If the plaintiff does not agree to the remitted amounts, the court shall
order a new trial on the issue of damages only pursuant to § 768.74 (4), Fla. Stat. (2013).
DONE AND ORDERED in Chambers at West Palm Beach, Florida this 28th day of July, 2014.

Daniel T. K. Hurley
United States District Judge

cc. all counsel