DAYTONA BEACH, Fla -- A pedestrian who was hit by a car and filed suit against the driver has appealed the lower court jury verdict that granted him nothing for pain and suffering or future medical costs. 

The Fifth Circuit Court of Appeals reversed the lower court’s decision and sent the case back for either an additur award or a new trial on past non-economic damages. 

In its opinion, the appellate court noted “[Lars Paul] Gustavsson also argues the trial court abused its discretion by declining to grant a new trial on damages and liability based on a compromised verdict. 

"We reverse on the issue of past non-economic damages only and affirm on the issue of future non-economic damages the court . We also affirm on the issue of liability based on a compromised verdict because Gustavsson did not preserve that issue for appeal.”

In 2011, Lars Paul Gustavsson, 40  was walking on the side of a road in Volusia County when a Chevrolet Suburban SUV driven by Carol Marie Holder struck him. Gustavsson filed suit against Holder and Sean Leonard Beck (who owned the car). 

Gustavsson spent more than 18 weeks in the hospital, and at trial, he alleged he spent $507,874.95 in past medical expenses.

As a result of the accident, Gustavsson sustained a displaced right femur fracture that had to be surgically repaired with a titanium rod. He also suffered a facial laceration, and had to have plastic surgery that resulted in permanent facial scarring. 

Recovery from the leg injury did not go well. During the three years following the accident, Gustavsson said he was diagnosed with three MRSA infections of the leg that required four additional surgical procedures.

At the close of the evidence, the trial court directed a verdict for Gustavsson on the issue of permanency and submitted the case to the jury. The jury returned a verdict finding Beck 1 percent negligent and Holder 99 percent negligent. The jury awarded Gustavsson $507,667.95 for medical damages, nearly the exact total of the claimed past medical bills, but awarded no damages for pain and suffering, physical impairment, mental anguish, inconvenience, aggravation of disease or physical defect, or loss of capacity for the enjoyment of life.

As noted in the opinion, “In light of the directed verdict on permanency and the award of past medical damages, the parties agreed the jury verdict was inconsistent, and the court sent the jury back for further deliberation. Only 11 minutes later, the jury returned the same verdict for medical damages and added only $1,000 for past non-economic damages and $1,000 for future non-economic damages.”

After the Volusia County trial, Gustavsson moved for additur or, in the alternative, new trial. (Additur is a legal term which allows a judge to add an award of damages to the original jury award, according to the Free Dictionary.)

The appellate court sent the case back to the trial court. In reaching its conclusion, the Fifth Circuit Court of Appeals noted: “Here the evidence of past non-economic damages was both overwhelming and undisputed. Under the facts of this case, the jury's verdict on such damages has no explanation in the record. It is apparent that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amount of past non-economic damages recoverable. Likewise, the amount of past non-economic damages awarded bears no reasonable relation to the substantial amount of economic damages proved and the injury suffered.”

The appellate opinion was authored by Robert J. Eagan, with Jay P. Cohen and Eric Eisnaugle concurring.

Nancye R. Jones and Mark A. Matovina, of Politis & Matovina PA. Port Orange represent Gustavsson. Elizabeth C. Wheeler of Elizabeth C Wheeler of Orlando represents the defendants.

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