Costa v. Aberle, 2012 Fla. App. LEXIS 12533

Costa (plaintiff) rear-ended in a motor vehicle collision; Aberle (defendant) liable admitted, leaving causation and damages issues for the jury.
Trial evidence showed defense experts claimed Gomez’s surgery was unnecessary and inappropriate; special jury instructions were requested to address damages from treatment and causation issues.
Plaintiff’s doctors included a chiropractor, neurosurgeon Gomez, and pain specialist Krost; ultimately discography and lumbar discectomy were performed with post-surgery injections and an 18% impairment.
Defense argued treatment was not caused by the accident and/or not medically necessary; experts suggested over-pressurization and improper equipment but did not claim malpractice per se.
The court gave Stuart and Dungan instructions over defense objection; jury found defendant caused the losses but awarded past and future medical expenses with no pain-and-suffering award; trial court granted new trial; appellate reversal remanding for judgment consistent with verdict.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the Stuart instructions proper given the defense experts' testimony?	Stuart instruction appropriate to address causation and damages from treatment.	Instruction overbroad; defense did not argue malpractice.	Yes; instruction appropriate under the facts.
Are the Dungan instructions proper to address alleged unnecessary treatment?	Dungan needed to address the possibility of improper treatment.	Standard instructions suffice; no need for additional instruction.	Yes; instruction appropriate under the facts.
Did the trial court abuse its discretion in granting a new trial based on these instructions?	Instructions were proper; new trial was unwarranted.	Instructions were improper under the facts; new trial warranted.	No abuse of discretion; the court erred in granting a new trial; reverse for judgment consistent with verdict.

Nason v. Shafranski, 33 So.3d 117 (Fla. 4th DCA 2010) (unnecessary surgery may constitute malpractice when it deviates from the standard of care)
McConnell v. Union Carbide Corp., 937 So.2d 148 (Fla. 4th DCA 2006) (merits of instructions judged by complete charge; mere error not dispositive)
Grimm v. Prudence Mut. Cas. Co., 243 So.2d 140 (Fla.1971) (instructions must fairly state the law; misstatement requires more than mere error)
Florida Power & Light Co. v. McCollum, 140 So.2d 569 (Fla.1962) (tests for whether instruction misleads the jury)
Gross v. Lyons, 721 So.2d 304 (Fla. 4th DCA 1998) (miscarriage of justice requires both error and potential confusion)
Office Depot, Inc. v. Miller, 584 So.2d 587 (Fla. 4th DCA 1991) (discretion limited when issues are purely legal)
Allstate Prop. & Cas. Ins. Co. v. Lewis, 14 So.3d 1230 (Fla. 1st DCA 2009) (latitude to trial judges varies with legal versus factual issues)
Bulkmatic Transport Co. v. Taylor, 860 So.2d 436 (Fla. 1st DCA 2003) (when the issue is essentially legal, deference is reduced)
Thigpen v. United Parcel Servs., Inc., 990 So.2d 639 (Fla. 4th DCA 2008) (order granting new trial reviewed for abuse of discretion)