author: PER CURIAM.

text:
    Alexis CANTORE, etc., et al., Petitioners, v. WEST BOCA MEDICAL CENTER, INC., etc., et al., Respondents.
    No. SC15-1926
    Supreme Court of Florida.
    [April 26, 2018]
    Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, Florida; Scott Schlesinger and Linda A. Alley of Schlesinger Law Offices, P.A., Fort Lauderdale, Florida, for Petitioner
    Bruce M. Ramsey and Donna Krusbe of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., West Palm Beach, Florida; Elliot H. Scherker, Julissa Rodriguez, and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, Florida; Scott Solomon and Norman Waas of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Coral Gables, Florida, for Respondent
    CORRECTED OPINION
   PER CURIAM.

Because the treating physician's deposition testimony regarding how he would have treated Alexis Cantore had she arrived at Miami Children's Hospital earlier was inadmissible, we quash the Fourth District Court of Appeal's decision in Cantore v. West Boca Medical Center, Inc. , 174 So.3d 1114 (Fla. 4th DCA 2015).

BACKGROUND

In July 2008, Alexis Cantore suffered permanent brain damage while being treated for hydrocephalus at West Boca Medical Center (WBMC) and Miami Children's Hospital (MCH). The Fourth District described the background of this case as follows:

In 2006, two years before the illness that gave rise to this case, when Alexis Cantore was twelve years old, she was diagnosed with hydrocephalus, a condition resulting from a build-up of excess cerebral spinal fluid within the cranium. Her condition resulted from a benign tumor which grew and blocked the outflow of the fluid which normally circulates around the brain. In 2006, she underwent a procedure, known as an Endoscopic Third Ventriculostomy ("ETV"), to remove the blockage. The procedure, which was performed at MCH, relieved the problem without causing Alexis any permanent injury.
However, scar tissue began to develop; a December 2007 CT scan at WBMC showed fluid starting to accumulate around her brain again. MRIs in March and June 2008 confirmed that a blockage was occurring again. A doctor at MCH scheduled Alexis for an ETV on July 28, 2008.
However, on July 3, 2008, at 2:30 p.m., Alexis began experiencing painful headaches and vomiting. Alexis's parents called MCH; a nurse told them to bring Alexis to the nearest hospital for a CT scan if they could not make it to MCH. Alexis was taken by ambulance to WBMC, arriving at 4:29 p.m. She was triaged and, on a three-tiered scale of categories (emergent, urgent and non-urgent), was listed in the middle category as "urgent." "Urgent" patients are those who are sick and require care, but are able to progress. In contrast, "emergent" patients may deteriorate quickly and need interventions, while "non-urgent" patients may have something like a laceration or a bite, which requires care but is not a medical emergency. The triage nurse on duty, in categorizing Alexis as "urgent," noted that she was awake and alert, moving all extremities, had a normal neurological exam, and a normal pupillary response, which was not indicative of an impending brain herniation.
Dr. Freyre-Cubano ("Dr. Freyre"), a pediatrician who was working in the WBMC emergency room, ordered a CT scan STAT at 4:47 p.m., before examining Alexis. Dr. Freyre first evaluated Alexis and noted that she had a normal pupillary exam. A nurse also noted no deficits to Alexis's eyes. Dr. Freyre performed another eye exam which showed that Alexis's pupils were equal and reactive to light. A radiologist read the new CT scan, compared it with the previous one from December 2007, and confirmed in a report that Alexis's condition was worsening, and that the ventricles were larger than they had been on the previous CT scan. The findings were "consistent with worsening hydrocephalus."
By 5:40 p.m., Dr. Freyre had reviewed the report on the CT scan and called Dr. Sandberg, the on-call pediatric neurosurgeon at MCH, regarding transferring Alexis to MCH. At that time, Dr. Freyre told Dr. Sandberg that Alexis was "stable." This became an important issue at trial and ... on appeal.
Dr. Freyre spoke with MCH's emergency department physicians regarding transferring Alexis via MCH's helicopter transportation service, known as "LifeFlight." About twenty minutes later, the MCH dispatcher for LifeFlight received the request for transport.
A WBMC nurse called the operations administrator at MCH, and apparently learned that the pilots on shift were approaching the maximum twelve hours of flight time and Alexis's transport would be completed by the on-coming pilots. LifeFlight's estimated arrival time was 7:00 p.m.
At 6:22 p.m., Alexis had an episode of vomiting, during which her heart rate briefly dropped to 55. A WBMC nurse then contacted a MCH Pediatric Intensive Care Unit ("PICU") nurse to update them. Dr. Freyre noted that she had called the MCH emergency department physician regarding Alexis's transfer and gave the necessary information.
Alexis was transferred to LifeFlight care at 7:25 p.m. She was examined by a LifeFlight nurse. The neurological assessment at that time was that Alexis was asleep, non-verbal and oriented as to person. When she was awakened, she was able to respond to her mother by nodding her head, and her pupils were equal, round and reactive to light. She had a Glasgow Coma Scale score of 13, with a perfect score being 15. She had a decrease in her speech. The helicopter lifted off at 8:09 p.m.
During the flight, Alexis suffered an acute decompensation. By the time she landed at MCH at 8:25 p.m., she had suffered a brain herniation. Accordingly, instead of taking Alexis to PICU, hospital personnel took her straight to the ER. Alexis arrived in very critical condition. Dr. Sandberg did an emergent ventriculostomy, in which he drilled a hole into her skull to insert a catheter, thereby relieving pressure on the brain. This procedure saved her life. However, Alexis suffered permanent brain damage; she has significant mental impairment and must be fed through a tube. She will never be able to work or live independently.

Id. at 1115-17.

In 2010, Alexis and her parents, Felix and Barbara Cantore, sued WBMC and MCH, alleging that they had not provided proper medical care for Alexis on July 3, 2008. The Cantores presented testimony from several expert witnesses regarding the timing of Alexis' transfer from WBMC to MCH and the care she received from the LifeFlight crew. One of the witnesses, Dr. William Loudon, a pediatric neurosurgeon, testified that, based on his understanding of Alexis' condition before she herniated, if she had come under his care prior to the herniation, he would have performed an emergency ventriculostomy. In Dr. Loudon's opinion, if Alexis had received earlier relief from the build-up of cerebrospinal fluid in her brain, the herniation could have been prevented.

Over the Cantores' objection, counsel for WBMC was permitted to publish to the jury the deposition of Dr. Sandberg, the pediatric neurosurgeon at MCH who operated on Alexis, in which Dr. Sandberg answered hypothetical questions as to how he would have treated Alexis had she arrived at MCH an hour or two earlier. The trial court also permitted Dr. Steven White, WBMC's expert on pediatric emergency medicine, to testify that Dr. Sandberg's statement as to what he would have done had Alexis arrived at MCH earlier was consistent with what other neurosurgeons would have done.

Ultimately, the jury returned a verdict in favor of WBMC and MCH. The Fourth District affirmed, concluding that this Court's decision in Saunders v. Dickens , 151 So.3d 434 (Fla. 2014), did not prevent the admission of Dr. Sandberg's deposition testimony. Cantore , 174 So.3d at 1117-21.

ANALYSIS

The Cantores argue that the trial court abused its discretion in admitting Dr. Sandberg's deposition testimony about what he would have done had Alexis arrived at MCH earlier because such testimony is prohibited by this Court's decision in Saunders . We agree and quash the Fourth District's decision.

A trial court's admission of evidence is reviewed for an abuse of discretion. See Special v. W. Boca Med. Ctr. , 160 So.3d 1251, 1265 (Fla. 2014).

The elements of a medical malpractice claim are: "(1) a duty by the physician, (2) a breach of that duty, and (3) causation." Saunders , 151 So.3d at 441 (citing Gooding v. Univ. Hosp. Bldg., Inc. , 445 So.2d 1015, 1018 (Fla. 1984) ). To establish that a physician breached the duty of care owed to the patient, the plaintiff must prove that "the care provided by the physician was not that of a reasonably prudent physician ." Id. As to the element of causation, "Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff's injury." Gooding , 445 So.2d at 1018.

In Saunders , this Court addressed a plaintiff's burden of proof in medical malpractice cases. The patient in Saunders went to a neurologist complaining of back and leg pain, unsteadiness, cramps in his hands and feet, numbness in his hands, and tingling in his feet. Saunders , 151 So.3d at 436. The neurologist determined that the issues with the patient's hands were caused by peripheral neuropathy due to diabetes, but the neurologist did not perform a test to confirm the diagnosis. Id. The neurologist recommended that the patient be admitted to the hospital, and he ordered an MRI of the patient's brain and lumbar spine. Id. "[T]he MRI of the lumbar spine demonstrated severe stenosis (narrowing) of the spinal canal." Id. Based on these results, the neurologist referred the patient to a neurosurgeon for a consultation. Id. Unaware of any issues with the patient's upper extremities, the neurosurgeon performed a lumbar decompression procedure on the patient. Id. The patient's condition did not improve, so the neurosurgeon ordered additional MRIs, including a cervical MRI, which showed compression in both the lower back and neck. Id. The neurosurgeon recommended that cervical decompression surgery be performed, but the neurosurgeon did not schedule the surgery as planned. Id. A second neurosurgeon met with the patient and concluded that he "should undergo a second lumbar surgery and, at a later date, a cervical spine surgery." Id. at 437. "The [second] neurosurgeon performed the lumbar surgery, but the cervical spine surgery was never performed." Id. The patient's condition eventually degenerated into quadriplegia. Id.

In his medical malpractice claim against the neurologist, the patient in Saunders alleged that the neurologist had failed to timely diagnose his cervical compression. Id. The patient also filed a claim against the first neurosurgeon, but the parties settled before trial. Id. At trial, the patient presented expert testimony that the neurologist's failure to consider cervical cord compression as the cause of the patient's upper body symptoms was a breach of the standard of care. Id. The patient also presented expert testimony that, had a cervical decompression surgery been performed shortly after the time the patient first reported his symptoms, the patient "more likely than not would not have progressed to quadriplegia." Id. In rebuttal, the neurologist introduced depositions of the first neurosurgeon, which were taken before he settled with the patient. Id. at 438. In the depositions, the first neurosurgeon stated that, even if he had possessed the results of a cervical MRI when he initially met with the patient, "he would not have operated on the neck because [the patient] had not yet experienced problems with his upper extremities." Id. During closing argument, counsel for the neurologist "asserted that [the patient] had not established causation in light of [the first neurosurgeon's] testimony that he would not have changed the course of treatment even if [the neurologist] had ordered a cervical MRI." Id. at 439. The jury then returned a verdict in favor of the neurologist. Id.

However, this Court in Saunders stated, "[W]e hold that testimony that a subsequent treating physician would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care is irrelevant and inadmissible and will not insulate a defendant physician from liability for his or her own negligence." Id. at 443. We explained:

Because the central concern in medical malpractice actions is the reasonably prudent physician standard, the issue of whether a treating physician acted in a reasonably prudent manner must be determined for each individual physician who is a defendant in a medical malpractice action. A subsequent treating physician simply may not be present at the time a defendant physician makes an allegedly negligent decision or engages in a potentially negligent act. Further, it is not only the final physician, but rather each treating physician who must act in a reasonably prudent manner.... To [allow testimony from a subsequent treating physician like that of the first neurosurgeon], would alter the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated. It would place a burden on the plaintiff to somehow prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis or testing, contrary to his or her testimony and irrespective of the standard of care for the defendant physician. To require the plaintiff to establish a negative inappropriately adds a burden of proof that simply is not required under the negligence law of this State.

Id. at 442. Accordingly, this Court held that the closing argument by counsel for the neurologist regarding the element of causation was "a misstatement of the law," and "the trial court erred when it permitted ... counsel to mislead the jury during closing statements." Id. We also determined that the error was harmful because counsel for the neurologist "repeatedly relied on [the first neurosurgeon's] testimony in his improper burden-shifting statements" and, because the plaintiff was unable to explain that the first neurosurgeon's deposition was taken before he settled out of the case, "the jury was unaware that [the first neurosurgeon] was motivated by a desire to deny wrongdoing and avoid liability." Id. at 442-43.

In this case, Dr. Sandberg's deposition testimony in response to the hypotheticals from all the parties can be summarized as follows: Regardless of whether Alexis had arrived at MCH an hour or two earlier, at some point he would have performed an emergency ventriculostomy to save her life, and she still would have suffered permanent brain damage. Dr. Sandberg explained that this would have been the result regardless of the condition Alexis was in when she arrived. If Alexis had arrived earlier and had been in stable condition, Dr. Sandberg would have scheduled a surgery for later in the day, but Alexis likely would have deteriorated prior to the scheduled surgery, requiring the same type of emergency intervention she actually received. And if Alexis had arrived earlier and was in a deteriorated state (as the Cantores posited would have been the case), Dr. Sandberg would have proceeded with the emergency procedure at that time, just as he actually did several hours later.

The substance of Dr. Sandberg's testimony about how he would have treated Alexis under circumstances other than those that actually occurred is no different from the testimony from the subsequent treating physician in Saunders . In the parties' hypotheticals, Dr. Sandberg was not asked to explain the standard of professional care for transferring patients with hydrocephalus who exhibit symptoms like the ones Alexis was exhibiting. Nor was he asked his opinion about whether any of the other healthcare providers involved in Alexis' care on July 3, 2008, failed to meet that standard. In the context of the entire trial record, it is clear that the purpose of introducing the challenged portions of Dr. Sandberg's deposition testimony was to break the chain of causation between the alleged negligent conduct of WBMC or MCH, or both, and Alexis' injuries-i.e., to establish that Alexis still would have suffered permanent brain damage even if the hospitals and their staffs had effectuated a faster transfer from WBMC to MCH. Therefore, Dr. Sandberg's testimony on that point was "irrelevant and inadmissible," Saunders , 151 So.3d at 443, and the trial court abused its discretion in allowing it to be read to the jury.

Contrary to the dissent's attempt to factually distinguish this case from Saunders, nothing in the four corners of Saunders provides that the admissibility of a subsequent treating physician's testimony about the causation element is affected by the subsequent treating physician also serving as an advisor to an initial treating physician or being referred to as a neutral and "hybrid" expert witness. Instead, in Saunders , this Court's focus was on the substance of the subsequent treating physician's testimony and its effect on the plaintiff's case. Similarly, here, the pertinent hypotheticals at issue concerned Dr. Sandberg's status as the subsequent treating physician and how his own subsequent treatment might have changed if any previous treating healthcare providers had acted differently (i.e., arranged a faster transfer).

Additionally, the error here was not harmless. See § 59.041, Fla. Stat. (providing that the harmless error test applies to the "improper admission or rejection of evidence"); Saunders , 151 So.3d at 442 (applying the harmless error test under these circumstances). "To test for harmless error [in civil appeals], the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict." Special , 160 So.3d at 1256.

Here, the Fourth District correctly pointed out that the Cantores were not "hindered or restricted" in expressing their theory of liability against WBMC and MCH. Cantore , 174 So.3d at 1121. Indeed, the Cantores presented multiple witnesses who testified that the actions of WBMC (including Dr. Freyre) and MCH fell below the applicable standard of care, causing Alexis to suffer permanent brain damage. However, counsel for WBMC and MCH relied on Dr. Sandberg's responses to the hypothetical questions to argue to the jury that the Cantores failed to meet their "promise" to show that the outcome in this case would have been different had Alexis arrived at MCH earlier than she did. In making this argument, counsel for WBMC and MCH each read directly from Dr. Sandberg's deposition, highlighting the erroneously admitted portions of his testimony. In Saunders , this Court expressly disapproved of this type of burden-shifting argument regarding the causation element of a medical malpractice claim. See 151 So.3d at 442. But for the erroneous admission of Dr. Sandberg's deposition testimony, counsel could not have made such an argument and put the Cantores in the position of needing to prove that Dr. Sandberg's testimony was false. Furthermore, the record reflects that during deliberations the jury twice asked to review Dr. Sandberg's deposition testimony. After a five-week long trial with 42 witnesses, this was one of only two witnesses the jury asked to hear from again. Finally, as the Cantores point out, Dr. Sandberg's testimony about how he would have treated Alexis if she had arrived at MCH earlier was bolstered by Dr. White's testimony that Dr. Sandberg's responses were "consistent" with his own experience with emergency ventriculostomies.

Accordingly, the erroneous admission of Dr. Sandberg's testimony was not harmless.

CONCLUSION

For the foregoing reasons, Dr. Sandberg's testimony about how he would have treated Alexis had she arrived at MCH earlier was inadmissible and cannot be considered harmless error. Accordingly, we quash the Fourth District's decision in Cantore , reverse the judgment in favor of WBMC and MCH, and remand for a new trial.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and POLSTON, JJ., concur.

POLSTON, J., concurs with an opinion.

CANADY, J., dissents with an opinion, in which LAWSON, J., concurs.

LEWIS, J., recused.

Although I believe there is jurisdiction as expressed in the majority opinion, I share Justice Canady's concern regarding the breadth of this Court's holding in Saunders v. Dickens , 151 So.3d 434 (Fla. 2014). However, no argument to recede from the holding in Saunders was raised here.

The Fourth District's decision in Cantore v. West Boca Medical Center, Inc. , 174 So.3d 1114 (Fla. 4th DCA 2015), does not expressly and directly conflict with this Court's decision in Saunders v. Dickens , 151 So.3d 434 (Fla. 2014), "on the same question of law." Art. V, § 3(b)(3), Fla. Const. Because this Court lacks jurisdiction to review Cantore , I dissent.

My disagreement with the majority's determination of jurisdiction is twofold. First, Cantore and Saunders involve entirely different questions of law regarding medical malpractice actions. Cantore involves the admissibility of certain deposition testimony from a "subsequent" treating physician. In Saunders , this Court's majority couched its holding, in part, in terms of the relevance and admissibility of the subsequent treating physician's deposition testimony, but that language in Saunders is mere dicta. The actual question of law in Saunders involved not whether the testimony was admissible but rather whether the testimony could be given conclusive effect regarding the element of causation. Second, even if Saunders can properly be read to involve the issue of admissibility, jurisdiction is still lacking because Cantore and Saunders do not involve substantially similar controlling facts. Among other things, the nature of the testimony at issue in Cantore is significantly different from the specific type of testimony proscribed by Saunders .

The Actual Question of Law in Saunders

This Court's majority in Saunders chose to couch its holding, in part, in terms of the relevance and admissibility of the deposition testimony. Saunders , 151 So.3d at 443. Here, the majority's determination of jurisdiction rests squarely on the admissibility aspect of the "holding" in Saunders . See majority op. at 257 (quashing the Fourth District's decision "[b]ecause the treating physician's deposition testimony ... was inadmissible"). But Saunders ' reference to relevance and admissibility cannot properly form the basis for jurisdiction. That reference is not only dicta, but it purports to constitute a holding on an issue of law that was never even presented to this Court.

In Saunders , the original treating physician (a neurologist) was the only remaining defendant in the case at the time of trial. Saunders , 151 So.3d at 436, 437. All of the other named defendants, including the subsequent treating physician (a neurosurgeon), settled with the plaintiffs prior to trial. Id. at 437. The subsequent treating physician was, however, later included as a Fabre defendant on the verdict form. Id. During the subsequent treating physician's deposition, which was taken prior to his reaching a settlement with the plaintiffs, the subsequent treating physician testified that he would not have done things differently even if the original treating physician had ordered a cervical MRI (which likely would have revealed the patient's cervical compression). Id. at 438. At trial, the defendant (the original treating physician) introduced the deposition testimony of the subsequent treating physician, and defense counsel argued to the jury during closing statements that given the deposition testimony, the plaintiffs could not prove the requisite element of causation. Id. Plaintiffs' counsel objected to defense counsel's closing argument "on the basis that this was a misstatement of the law," but the trial court overruled the objection. Id. at 438-39. The jury returned a verdict in favor of the defendant physician. Id. at 439. On appeal, the Fourth District framed the issue regarding defense counsel's closing argument as one involving the burden of proof. Namely, the Fourth District "held that" the closing argument "was not improper" and that defense counsel "did not improperly shift the burden of proof." Id. There is nothing to indicate that the separate issue of the admissibility of the deposition testimony was in any way presented to the Fourth District.

On review of the Fourth District's decision, this Court in Saunders similarly framed the legal issue presented as one involving "the burden of proof in negligence actions." Id. at 440. Saunders concluded that defense counsel misleadingly misstated the law during closing statements when he claimed that the subsequent treating physician's deposition testimony rendered it impossible for the jury to conclude that any negligence by the defendant physician caused the injury. Id. at 442. Saunders then determined that the trial court committed harmful error by allowing defense counsel to mislead the jury, for the following two reasons: (1) defense counsel "repeatedly relied on [the deposition] testimony in his improper burden-shifting statements," and (2) the jury was not permitted to hear that the deposition was taken while the subsequent treating physician "was in an adversarial relationship with" the plaintiffs. Id. at 442-43. Without providing any framework for doing so, the majority in Saunders couched its holding, in part, in terms of the relevance and admissibility of the deposition testimony: "we hold that testimony that a subsequent treating physician would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care is irrelevant and inadmissible and will not insulate a defendant physician from liability for his or her own negligence." Id. at 443 (emphasis added). There is nothing to indicate that the issue of admissibility was in any way presented to this Court. None of the analysis in Saunders addresses the issue of admissibility.

Lacking any foundation in the Court's analysis, the language in Saunders regarding relevance and admissibility simply pops up from nowhere in the conclusion of the opinion. It is wholly unnecessary to the resolution of the case and is thus mere dicta. Under article V, section 3(b)(3) of the Florida Constitution, express and direct conflict cannot be established based on a purported conflict with a sua sponte statement from this Court-whether couched as a holding or otherwise-regarding some future issue that was never presented or analyzed in the case. Rather, that constitutional requirement must be grounded in a decision concerning an issue actually presented and considered by the Court. And in Saunders , the only "question of law" that was actually "deci[ded]" involved the burden of proof and whether certain testimony could be given conclusive effect regarding the element of causation. See art. V, § 3(b)(3), Fla. Const.

To further illustrate how untethered the issue of admissibility was to the decision in Saunders , one need only look to the other three cases examined by this Court's majority in Saunders -namely, Ewing v. Sellinger , 758 So.2d 1196 (Fla. 4th DCA 2000), and the two conflict cases of Goolsby v. Qazi , 847 So.2d 1001 (Fla. 5th DCA 2003), and Munoz v. South Miami Hospital, Inc. , 764 So.2d 854 (Fla. 3d DCA 2000). Not one of those three cases turned on the issue of admissibility. Rather, those cases involved whether certain what-if testimony-or the absence of such testimony-was dispositive regarding the element of causation.

In Munoz , the issue was whether summary judgment was properly granted in favor of certain defendants based on testimony from one of the defendant physicians regarding "what he would or would not have done in response to warnings which should have been but were never in fact given." Munoz , 764 So.2d at 856. In Goolsby , the issue was whether a directed verdict was properly granted in favor of a defendant physician based on the absence of evidence showing that any of the other physicians involved would have done anything differently even if the x-rays had been properly read. Goolsby , 847 So.2d at 1002-03. And in Ewing , the issue was whether a directed verdict was properly granted in favor of the defendant physician based on testimony from the subsequent treating physician that he would not have done anything differently even if the defendant physician had performed a risk evaluation. Ewing , 758 So.2d at 1196-97. These three district court cases all involve the conclusive effect of testimony as opposed to the admissibility of that testimony. And this Court's majority in Saunders , 151 So.3d at 443, unequivocally approved the conflict case of Munoz , in which the Third District specifically noted that, although the what-if statements at issue "surely cannot be given conclusive effect" to warrant summary judgment, the statements were indeed admissible , Munoz , 764 So.2d at 856.

The entire context of Saunders and the district court cases examined by Saunders makes clear that the question of law decided in Saunders involved causation and the burden of proof, not admissibility. The actual holding of Saunders is thus that testimony by a subsequent treating physician regarding what he or she would have done cannot be given conclusive effect regarding the element of causation. Although such testimony may create an inference of no causation, ultimately the case cannot be decided as a matter of law based on what a particular physician would have done as opposed to what a hypothetical physician operating under the professional standard of care would have done.

In short, because the decisions in Saunders and Cantore involve entirely different questions of law, this Court does not have jurisdiction to review Cantore .

The Differing Factual Nature of Saunders and Cantore

Even assuming that Saunders can properly be read to involve the issue of admissibility, conflict jurisdiction still does not exist. Although Saunders and Cantore both involve a "subsequent" treating physician's testimony, they do so in very different factual contexts, and the nature of the deposition testimony in Cantore is not the specific type of testimony proscribed by Saunders . Because the two cases do not "involv[e] substantially the same facts," this Court does not have jurisdiction. Nielsen v. City of Sarasota , 117 So.2d 731, 735 (Fla. 1960).

As an initial matter, Cantore is distinguishable from Saunders based on the underlying nature of the subsequent treating physicians in the two cases. For example, unlike Saunders -in which, unbeknownst to the jury, the subsequent treating physician had been an active defendant at the time of his deposition-the district court in Cantore described the subsequent treating physician as being "at all times a neutral third-party witness with no motivation to deny wrongdoing or avoid liability as he was never a defendant, unlike the testifying neurosurgeon in Saunders ." Cantore , 174 So.3d at 1121. Additionally, in Cantore , the district court made clear that the subsequent treating physician was also intimately involved in and "played such an influential role in the care at issue:" the original treating physician and other medical personnel at the original treating physician's hospital "continually followed [the subsequent treating physician's] instructions, heeded his recommendations, and noted his preferences." Id. at 1119. This "hybrid" role, id. , played by the subsequent treating physician is significantly different than that in Saunders . Finally, unlike Saunders , the district court in Cantore repeatedly referred to the subsequent treating physician as an "expert" witness. See id. at 1115, 1119, 1120. Saunders itself recognized that medical malpractice actions "often involve" expert witnesses testifying to hypotheticals involving "what a reasonably prudent physician would have done and the effect that such reasonable care would have had on the patient." Saunders , 151 So.3d at 442 (emphasis added). And that is exactly how the district court portrayed the subsequent treating physician in Cantore -as an expert witness testifying regarding hypotheticals. The majority here ignores the differences between the subsequent treating physicians in Saunders and Cantore .

Cantore is also distinguishable from Saunders based on the underlying nature of the deposition testimony in the two cases. In Saunders , this Court's majority proscribed (in dicta) certain specific testimony from a subsequent treating physician-namely, testimony "that adequate care by the defendant physician would not have altered the subsequent care." Saunders , 151 So.3d at 442. That proscribed testimony is missing here. In Cantore , the "true condition" of the child while under the physical care of the original treating physician was very much in dispute at trial and was the critical factual issue for the jury to decide. As the district court noted, the original treating physician's "action (or inaction) was the focus of the entire five-week trial," Cantore , 174 So.3d at 1121, and the plaintiffs' "strategy during the course of the litigation and at trial was to demonstrate that [the original treating physician] failed to appreciate [the child's] true condition and as a result provided inaccurate information to multiple healthcare providers at [Miami Children's Hospital], including, but not limited to, [the subsequent treating physician]," id. at 1120. What is clear from the district court's opinion is that the subsequent treating physician's deposition testimony regarding the likelihood of the same end result was based only on the underlying assumption that the child was "alert and oriented," as opposed to deteriorating neurologically. Id. at 1117. And that underlying assumption "was based on his understanding of [the child's] condition at that time." Id. at 1119. In fact, the district court specifically noted that the subsequent treating physician testified "that he would have made different recommendations to intubate and administer diuretics had he been told" that the child's condition was as the plaintiffs suggested-that is, deteriorating neurologically. Id. at 1120. In other words, the subsequent treating physician testified that he would have treated the child differently under the competing factual scenarios. The gist of his "expert" testimony thus was that the child's "true condition" was the "key point" that would have determined "the timing of intervention." Id. And he explained why, assuming that the child was in fact awake and oriented, it would not have mattered if the child had come under his physical care two hours earlier than she did. Id. at 1117. Nothing within the four corners of the Cantore opinion supports the conclusion that the subsequent treating physician testified that he would not have treated the child differently-and that the end result would have inevitably been the same-even if the child's "true condition" was as asserted by the plaintiffs at trial. The nature of the deposition testimony in Cantore -as described by the district court within the four corners of its opinion-is dramatically different than that in Saunders , in which the original treating physician did not correctly diagnose the patient, and in which the subsequent treating physician testified that a correct diagnosis would nevertheless not have affected the subsequent treatment of the patient.

Conclusion

The majority improperly bases its determination of jurisdiction in this case on its "disagreement with the result reached by a district court applying" Saunders , as opposed to on express and direct conflict with Saunders . Dorsey v. Reider , 139 So.3d 860, 867 (Fla. 2014) (Canady, J., dissenting). Because Saunders and Cantore involve entirely different questions of law, and because the controlling facts in the two cases are not substantially similar, this Court does not have jurisdiction in this case. Accordingly, I dissent.

LAWSON, J., concurs.

      We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

      We also agree with the Cantores that the trial court erred in entering a directed verdict in favor of WBMC and MCH on the application of section 768.13, Florida Statutes (2008), the Good Samaritan Act, which grants immunity from civil damages to any healthcare provider that provides "emergency services," unless the damages are the result of "reckless disregard." The threshold question in determining the applicability of the Good Samaritan Act is whether the healthcare provider was providing "emergency services" to the patient. But here there was conflicting evidence regarding whether Alexis was "stabilized and [was] capable of receiving medical treatment as a nonemergency patient" at the times relevant to the Cantores' allegations of medical malpractice. § 768.13(2)(b) 2.a., Fla. Stat. For example, there was testimony that immediately upon her arrival at WMBC "her level of consciousness began to wax and wane"; however, another witness testified that she was stable "[u]p until the very end of the transport." Therefore, due to the conflicting evidence about Alexis' condition, the question of whether the Good Samaritan Act applied should have been left to the jury. See Univ. of Fla. Bd. of Trs. v. Stone ex rel. Stone , 92 So.3d 264, 271 (Fla. 1st DCA 2012).

      The dissent contends that we cannot base conflict jurisdiction on this statement because it is allegedly dicta rather than an issue of law this Court actually decided in Saunders . However, within the four corners of the Saunders decision, the majority of this Court expressly indicated that it was deciding this question of law, which is binding precedent.

      The Fourth District stated that Dr. Sandberg's responses regarding the timing of Alexis' transfer "had bearing on his own actions as well," and in them "he was explaining his medical decision-making process and how different decisions made by him would have impacted Alexis's neurological status and condition." Cantore , 174 So.3d at 1119. However, the Cantores never alleged that Dr. Sandberg or any other provider acted negligently after Alexis arrived at MCH.

      Because it was not preserved at trial, we do not address the Cantores' argument regarding the issue of agency and the inclusion of Dr. Freyre's name on the verdict form.

      Fabre v. Marin , 623 So.2d 1182 (Fla. 1993).

      At the time of trial in Cantore , two defendants remained-(1) the hospital at which the original treating physician provided care, and (2) the hospital that provided the helicopter transportation service and at which the subsequent treating physician performed the emergency ventriculostomy that saved the child's life. Cantore , 174 So.3d at 1115-17, 1121.


source: Caselaw Access Project

author: PARIENTE, J.

license: Public Domain

text:
    Gwendolyn E. ODOM, etc., Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY, Respondent.
    No. SC17-563
    Supreme Court of Florida.
    September 20, 2018
    Rosalyn Sia Baker-Barnes, Mariano Garcia, and T. Hardee Bass of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, Florida; and Daniel R. Hoffman and David J. Sales of David J. Sales, P.A., Jupiter, Florida, for Petitioner
    William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta, Georgia; Jeffrey S. Bucholtz of King & Spalding LLP, Washington, D.C.; and Jeffrey A. Cohen of Carlton Fields Jorden Burt, P.A., Miami, Florida, for Respondent
    John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, Florida, for Amicus Curiae Florida Justice Association
    Kansas R. Gooden of Boyd & Jenerette, PA, Jacksonville, Florida; and Elaine D. Walter of Gaebe Mullen Antonelli & DiMatteo, Coral Gables, Florida, for Amicus Curiae Florida Defense Lawyers Association
    William W. Large of Florida Justice Reform Institute, Tallahassee, Florida; and Jason Gonzalez and Amber Stoner of Shutts & Bowen LLP, Tallahassee, Florida, for Amicus Curiae Florida Justice Reform Institute
   PARIENTE, J.

The Fourth District Court of Appeal overturned a multimillion dollar noneconomic damages award to an adult child whose mother died of lung cancer after the jury found through special interrogatories that the decedent's addiction to cigarettes was a legal cause of her death. See R.J. Reynolds Tobacco Co. v. Odom , 210 So.3d 696, 698 (Fla. 4th DCA 2016). The conflict issue before us arises from the Fourth District's misapplication of the abuse of discretion standard to the trial court's denial of a motion for remittitur and creation of a bright-line cap on the amount of noneconomic damages a financially independent adult surviving child may be awarded for the wrongful death of his or her parent. Instead of properly applying the abuse of discretion standard and this Court's well-established precedent, which entitles both a jury's verdict and a trial judge's ruling on a motion for remittitur to great deference, the Fourth District relied on four district court of appeal decisions to hold that the trial court erred in denying the motion for remittitur in this case. In reaching this holding, the Fourth District made the sweeping statement that "no matter" what the evidence shows, "an adult child who lives independent of the parent during the parent's smoking related illness and death is not entitled to [a] multi-million dollar compensatory damages award." Odom , 210 So.3d at 701.

For the reasons that follow, we hold that the Fourth District misapplied the abuse of discretion standard when reviewing the trial court's denial of the motion for remittitur. When the abuse of discretion standard is properly applied, we conclude that the trial court did not abuse its discretion in denying the motion by scrupulously following the standard for determining whether a remittitur is appropriate. We further hold that the Fourth District erred in creating a cap on the amount of noneconomic damages a financially independent adult child may be awarded for the wrongful death of his or her parent in conflict with this Court's precedent. Neither the Legislature nor this Court has established a cap on the amount of noneconomic damages a survivor may recover in a wrongful death action, and we decline to do so today. Accordingly, we quash the Fourth District's decision and remand for reinstatement of the judgment.

FACTUAL BACKGROUND

Petitioner Gwendolyn Odom brought this Engle progeny action against Respondent R.J. Reynolds, alleging that her mother, Juanita Thurston, died from lung cancer caused by her addiction to cigarettes manufactured by R.J. Reynolds. Odom , 210 So.3d at 698. Thurston was fifty-eight years old when she died and had never married. Odom, who was forty-two years old when Thurston died, sought noneconomic damages as Thurston's surviving daughter under Florida's wrongful death statute.

The uncontroverted evidence presented at trial established "a very close and unique relationship" between Odom and Thurston that endured until Thurston's untimely death. Odom , 210 So.3d at 701. Thurston was just sixteen years old when Odom was born; Odom's biological father was not in the picture. Odom and Thurston were so close that they were described as "more like sisters."

Throughout Odom's life, Thurston was a constant support to her. After leaving home and moving to South Carolina for college, Odom returned home several months later and moved back in with Thurston. Even after marrying her first husband, Odom continued to live with Thurston for a time. And when Odom's first marriage began to deteriorate, while she was pregnant with her first son, Odom moved back in with Thurston. Odom explained what Thurston's support during this time meant to her:

My mother was always there for me. Without my mother, I think I would have been lost at that point. I was going through a troubled marriage, I was pregnant, and she was the one who I could count on.

Even after Odom got remarried and Odom and Thurston no longer lived together, they continued to spend a lot of time together.

In addition to providing unconditional support to Odom, Thurston was very involved with Odom's children. Thurston was present at the birth of Odom's firstborn son, Ahmad. Thurston was always there for Ahmad's football and baseball games, even traveling to different cities to watch him play. She was his biggest fan. Odom described Thurston's relationship with Ahmad as "extremely close." Thurston considered Ahmad to be her son.

Just as Thurston was there to support Odom and Odom's children, Odom was there to support Thurston. Odom was there for Thurston each time Thurston attempted to quit smoking. Odom was also there when Thurston was diagnosed with lung cancer, and supported Thurston through every step of her treatment.

Odom was also there when Thurston's cancer returned. Although Odom felt as if she had been "punched in [the] stomach" and "hit over the head with a hammer all at one time," she remained strong for Thurston. Odom explained the pain she experienced as she witnessed Thurston's body transform from chemotherapy:

And [Thurston] didn't want to do anything. So it was really-it was really hard. I would go sit with my mother. She liked to lay down a lot. I would sit down with her, hold her hand. I would kiss her face. And I tried to be strong for her. I would go in the bathroom, close the door, and just cry.
And I would cry in the bathroom, I would wash my face, try to get my composure, I would go back in there and, you know, try to be strong for her. I didn't want her to see how upset I was. But to see my mother like that knowing, you know, trying to remember her how she was before it happened. She was 58, but she looked like she was like 30 years older than what she was.
It was-it was very-very painful for me. Very painful. And it's still painful today to think about it, what she went through, you know. She suffered a lot. A lot.

As she had always been, Odom was there when Thurston was admitted to the hospital for the last time. As part of her typical routine, Odom went to Thurston's house and knocked on the door. After Thurston did not answer, Odom called several times. Finally, Thurston made it to the door. It became clear to Odom that Thurston was having a stroke. Odom called 911 and Thurston was taken to the hospital.

At the hospital, the doctor informed Odom that Thurston was on life support. Thurston never woke back up.

Odom described how she felt while Thurston spent her last days in the hospital:

It was very-it was very, very difficult for me. It was very difficult. Because at that point, I knew my mother was dying, she was pretty much dead at that point. So I just knew that this is the person that I had always depended on my entire life, and I knew she was dying, she was gone, she was leaving-she was leaving me. And it was very, very sad.
My mother was the one person that I could always depend on. And knowing that I wasn't going to have her in my life anymore, it was going to be very, very difficult for me.

Odom further explained how she felt after her mother passed away:

I think at one point, I was depressed. I don't know that-the definition of depression, but knowing she wasn't there, I didn't want to do anything. I-it was just a bad time for me because I knew that my mother was no longer with me, and I could not call her, I couldn't see her, we couldn't talk on the phone anymore, it was just-it was very difficult.

Odom described an instance when she picked up the phone to call Thurston only to remember that Thurston was not there.

During closing arguments, Odom requested that the jury award Odom $5 million in noneconomic damages. R.J. Reynolds, on the other hand, did not suggest a number to the jury. Instead, R.J. Reynolds told the jury: "[W]e simply leave it to your good judgment and common sense as to whether Ms. Odom should be made a very wealthy person at this stage of her life .... We leave that question to you." On the issue of comparative negligence, R.J. Reynolds argued that the jury should find Thurston 100% at fault for her death, while Odom argued that the jury should allocate "no more than 25%" fault to Thurston. The jury awarded $6 million to Odom, which was later reduced to $4.5 million in accordance with the jury's finding that Thurston was 25% at fault. See Odom , 210 So.3d at 698.

R.J. Reynolds moved for a new trial or remittitur, arguing that the jury's verdict was grossly excessive and "could only have been the result of passion and prejudice." R.J. Reynolds requested that the trial court vacate the judgment and order a new trial, "or at a minimum substantially reduce the [noneconomic] damages award to the $400,000 to $500,000 range."

After a hearing, the trial court denied R.J. Reynolds' motion. In doing so, the trial court first considered this Court's relevant precedent and the factors set forth in the remittitur statute. The trial court then observed that R.J. Reynolds' argument in favor of a remittitur was based largely upon R.J. Reynolds Tobacco Co. v. Webb , 93 So.3d 331 (Fla. 1st DCA 2012), and Philip Morris USA Inc. v. Putney , 199 So.3d 465 (Fla. 4th DCA 2016), "which overturned jury verdicts for surviving adult children in the amounts of $8 million and $5 million, respectively." However, the trial court explicitly found that those decisions were distinguishable, explaining:

The facts in this case were simply different [from Webb and Putney ]. [Odom] and [Thurston] were only sixteen years apart and enjoyed a relationship that was described as that of close sisters, as much as a mother-daughter relationship. [Odom] lived with [Thurston], for many of the years of her adult life. Their family was close-knit and they spent considerable time together .... [Odom] and [Thurston] were either together every day, or spoke every day .... Moreover, even when [Odom] no longer lived by [Thurston] ..., this remained the case and [Thurston] was an integral part of [Odom's] family (with her own children).
These matters were not disputed; nor was the evidence of how [Thurston's] cancer and death affected [Odom]. [Odom] took her mother to nearly every treatment and medical appointment. She was deeply affected by her mother's illness as she watched her mother deteriorate and experience the ravages of systemic disease and treatment. [Odom] was by her mother's side during this time and remains affected to this day by her mother's suffering and death. Following her mother's death, [Odom] became depressed. That was a very difficult time in her life because she knew her mother was no longer there and that there were times when she would pick up the phone to call her mother, only to realize that she was gone. Even now, years after her mother's death [Odom] still misses her mother, and verbalizes her loss with her own son. Moreover, ... there was evidence in this case that [Odom] continued to lean on her mother for support prior to her death. She had never had any relationship with her father, and her mother was all she had for support in her life.

Thus, the trial court concluded:

The Court has presided over many wrongful death cases. The Court's conscience is not shocked by the jury's [noneconomic] damage verdict, and [R.J. Reynolds] has identified nothing in the record to suggest that the verdict was the product of passion and prejudice.

Accordingly, the trial court denied the motion for remittitur and entered final judgment for Odom. See Odom , 210 So.3d at 698-99.

R.J. Reynolds appealed, and the Fourth District reversed, reasoning that "[w]hen it comes to wrongful death awards, including those in the Engle context, courts have drawn a distinction between compensatory damages awarded to surviving spouses and to adult children." Id. at 699. The Fourth District explained that Putney and Webb "establish that no matter how strong the emotional bond between an adult child and a decedent parent may be, an adult child who lives independent of the parent during the parent's smoking related illness and death is not entitled to multi-million dollar compensatory damages award." Id. at 701. The Fourth District further explained that "[c]ases from outside the tobacco arena support this conclusion." Id.

Thus, although the evidence established that Odom and her mother "had a very close and unique relationship" and Odom "took her mother to many of her appointments and was devastated by her decline and subsequent death," the Fourth District concluded that "the relationship between an adult child living independent of their parent is simply not the type of relationship" that could justify Odom's award. Id. Accordingly, the Fourth District held that the trial court abused its discretion in denying R.J. Reynolds' motion for remittitur and remanded the case for the trial court to grant the motion for remittitur or order a new trial on damages. Id. at 703.

Odom petitioned to this Court and we granted review.

ANALYSIS

The conflict issue in this case arises from the Fourth District's misapplication of the abuse of discretion standard to the trial court's denial of a motion for remittitur and creation of a bright-line cap on the amount of noneconomic damages a financially independent adult surviving child may be awarded for the wrongful death of his or her parent. It is well-established that a trial court's ruling on a motion for remittitur is reviewed for an abuse of discretion. See Lassitter v. Int'l Union of Operating Eng'rs , 349 So.2d 622, 627 (Fla. 1976) ; see also Engle v. Liggett Grp., Inc. , 945 So.2d 1246, 1263 (Fla. 2006). This Court has explained the abuse of discretion standards as follows:

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the "reasonableness" test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

Canakaris v. Canakaris , 382 So.2d 1197, 1203 (Fla. 1980).

Our analysis begins by setting forth the relevant legal background. With the legal background set, we address the conflict issue presented in this case. Finally, we turn to properly review the trial court's denial of R.J. Reynolds' motion for remittitur for an abuse of discretion.

I. Relevant Legal Background

Under Florida's wrongful death statute, "[m]inor children of the decedent, and all children of the decedent if there is no surviving spouse, may ... recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury." § 768.21(3), Fla. Stat. (2014). Thus, an adult child twenty-five years or older has a right to claim noneconomic damages under the wrongful death statute only if there is no surviving spouse. See id. § 768.18(2) (defining minor child as a child "under 25 years of age").

The Legislature's stated purpose with the wrongful death statute is "to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer." Id. § 768.17. Prior to 1990, the wrongful death statute "only permitted minor children to recover pain and suffering damages due to the death of a parent." Mizrahi v. N. Miami Med. Ctr., Ltd. , 712 So.2d 826, 828 (Fla. 3d DCA 1998), approved , 761 So.2d 1040 (Fla. 2000). However, in 1990, the Legislature made a policy decision that when there is no surviving spouse, surviving adult children are entitled to recover noneconomic damages for the wrongful death of their parent. There is no statutory requirement that the adult child or children be financially dependent on the decedent at the time of the decedent's death in order to make a claim for noneconomic damages under the statute. See § 768.21(3), Fla. Stat. (2014).

In tandem with the right to recover noneconomic damages, in every case for money damages the trial court has a separate obligation to determine if the damages award is "excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact." Id. § 768.74(1). The remittitur statute explains that although "the reasonable actions of a jury are a fundamental precept of American jurisprudence and ... such actions should be disturbed or modified with caution and discretion," requiring courts to review the damages awarded by juries "provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of this state." Id. § 768.74(6). Thus, when a court "finds that the amount awarded is excessive ... it shall order a remittitur." Id. § 768.74(2).

The remittitur statute provides a list of factors for courts to consider when determining whether an award is excessive or inadequate:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) 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;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

Id. § 768.74(5).

In addition to the factors set forth in the remittitur statute, this Court has observed that reviewing "amounts awarded in similar cases has at least a limited value" in determining whether an award is excessive. Loftin v. Wilson , 67 So.2d 185, 189 (Fla. 1953). This observation came with a caution, however, that comparisons are "sometimes fraught with danger because, of course, each case is different and must of necessity be measured in the light of the circumstances peculiar to it." Id. ; see also Laskey v. Smith , 239 So.2d 13, 14 (Fla. 1970) ("In its movement toward constancy of principle, the law must permit a reasonable latitude for inconstancy of result in the performance of juries.").

Notwithstanding the factors set forth in the remittitur statute and any guidance that can be gleaned from reviewing similar cases, this Court has recognized that measuring noneconomic damages is inherently difficult as "there is no objective standard by which to measure" them. Angrand v. Key , 657 So.2d 1146, 1149 (Fla. 1995). "Technical or mathematical calculations are impossible to make." Id. Because of the inherent difficulty in measuring these kinds of damages, this Court has determined that "[t]he jury, guided by its judgment and everyday life experiences, is in the best position to make a fair assessment of these damages." Id. As we have explained:

Jurors know the nature of pain, embarrassment and inconvenience, and they also know the nature of money. Their problem of equating the two to afford reasonable and just compensation calls for a high order of human judgment, and the law has provided no better yardstick for their guidance than their enlightened conscience. Their problem is not one of mathematical calculation but involves an exercise of their sound judgment of what is fair and right.

Braddock v. Seaboard Air Line R.R. Co. , 80 So.2d 662, 668 (Fla. 1955).

In addition, the standard jury instructions, which were given in this case, explain to the jury that "there is no exact standard for fixing the compensation" of a noneconomic damages award. Fla. Std. Jury Instr. (Civ.) 502.2. The jury is further cautioned not to allow sympathy or prejudice influence their decision. Fla. Std. Jury Instr. (Civ.) 700.

Because assessing the amount of damages is within the province of the jury, this Court has made clear that when reviewing a motion for remittitur, a court "should never declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed." Bould v. Touchette , 349 So.2d 1181, 1184 (Fla. 1977). And when a trial judge refuses to grant a remittitur, "[t]he correctness of the jury's verdict is strengthened." Lassitter , 349 So.2d at 627. As this Court explained in Lassitter :

Two factors unite to favor a very restricted review of an order denying a motion for new trial on ground of excessive verdict. The first of these is the deference due the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record. The second factor is the deference properly given to the jury's determination of such matters of fact as the weight of the evidence and the quantum of damages.
The appellate court should not disturb a verdict as excessive, where the trial court refused to disturb the amount, unless the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.

Id. (emphasis added). Stated another way, an appellate court should only hold an award excessive if it "shock[s] the judicial conscience." Seaboard Coast Line R.R. Co. v. McKelvey , 270 So.2d 705, 706 (Fla. 1972). In order to shock the judicial conscience, "the verdict must be so excessive or so inadequate so as at least to imply an inference that the verdict evinces or carries an implication of passion or prejudice, corruption, partiality, improper influences, or the like." Lassitter , 349 So.2d at 627.

We have not yet addressed whether a noneconomic damages award in an Engle progeny case was so excessive that it shocked the judicial conscience and thus necessitated a remittitur. However, we recently held that a punitive damages award of $30 million in an Engle progeny case did not shock the conscience merely because it was more than what the plaintiff requested. See, e.g. , Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 308 (Fla. 2017).

In Schoeff , the plaintiff "asked the jury not to exceed $25 million in punitive damages." Id. Because the jury awarded $30 million, the Fourth District concluded that the award could not have been "adduced in a logical manner by reasonable persons." Id. (quoting § 768.74(5)(e), Fla. Stat. (2012) ). This Court rejected that conclusion, explaining that "this single factor is insufficient to render an award excessive. The fact that the jury exceeded requested damages does not render the award itself unreasonable or excessive." Id.

Having set forth the relevant legal background, we now turn to explain how the Fourth District misapplied the well-established abuse of discretion standard when reviewing the trial court's denial of R.J. Reynolds' motion for remittitur.

II. Misapplication of the Abuse of Discretion Standard

First, it is clear that the Fourth District misapplied the abuse of discretion standard, as it paid no deference to the trial court, which "had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record." Lassitter , 349 So.2d at 627. In fact, the Fourth District's decision fails to discuss or otherwise mention the trial court's well-reasoned order denying R.J. Reynolds' motion. Determining that the trial court abused its discretion without first determining that the trial court's decision was unreasonable is not consistent with the abuse of discretion standard. See Canakaris , 382 So.2d at 1203 (explaining that the abuse of discretion standard is a test of reasonableness).

Second, in addition to the lack of deference to the decision of the trial court, the Fourth District failed to consider any of the factors set forth in the remittitur statute. See § 768.74(5)(a)-(e), Fla. Stat. (2014). While the Fourth District's opinion recites the factors, it does not identify the presence of any of the factors in this case, including that the jury's award was indicative of passion. Id. As this Court has explained, an award is only excessive if it "evinces or carries an implication of passion or prejudice, corruption, partiality, improper influences, or the like." Lassitter , 349 So.2d at 627. Not only did the Fourth District not identify the presence of passion in the jury's verdict, but it failed to acknowledge that the trial court, after careful consideration of the factors in the remittitur statute, explicitly concluded that the jury's award was not indicative of "passion, prejudice, corruption or other improper motive." Bould , 349 So.2d at 1184.

Third, and significantly, the Fourth District misapplied the abuse of discretion standard when it concluded that the jury's verdict in this case was excessive based on four district court of appeal decisions, two of which the trial court expressly found to be distinguishable. See Odom , 210 So.3d at 701. Although we have stated that reviewing awards in similar cases can be helpful in determining whether a particular award is excessive, we also stated, in the very same case, that "each case is different and must of necessity be measured in the light of the circumstances peculiar to it." Loftin , 67 So.2d at 189. Here, consistent with our precedent, the trial court appropriately considered the cases cited by R.J. Reynolds, Webb and Putney , when reviewing whether the jury's verdict was excessive. After careful consideration, the trial court determined that the facts of this case "were simply different."

In reversing the trial court, the Fourth District did not conclude that this determination by the trial court was unreasonable. Rather, instead of assessing the reasonableness of the trial court's determination, as required by the abuse of discretion standard, the Fourth District concluded that two other district court of appeal cases "establish that no matter" what the evidence showed, the jury's multimillion dollar verdict in this case was excessive because it was in favor of a financially independent adult child. Odom , 210 So.3d at 701. The Fourth District's total reliance on district court of appeal cases to the exclusion of this Court's precedent, as well as the particular circumstances of the case before it, is simply not the kind of deferential review that the abuse of discretion standard requires.

For the reasons stated, we conclude that the Fourth District erred by misapplying the abuse of discretion standard when reviewing the trial court's denial of R.J. Reynolds' motion for remittitur. We now turn to address the Fourth District's cap on damages.

III. Cap on Damages

In addition to misapplying the abuse of discretion standard, the Fourth District created a cap on the amount of noneconomic damages a financially independent adult child may be awarded for the wrongful death of his or her parent when it concluded that, regardless of the evidence, "the relationship between an adult child living independent of their parent is simply not the type of relationship" that can justify a multimillion noneconomic damages award. Id. Because the Fourth District's cap on damages does not find support in either Florida Statutes or this Court's precedent, we conclude that this was error.

In creating this cap on damages, the Fourth District relied on Webb and Putney , which it concluded "establish that no matter how strong the emotional bond between an adult child and a decedent parent may be, an adult child who lives independent of the parent during the parent's smoking related illness and death is not entitled to multi-million dollar compensatory damages award." Id. However, neither Webb nor Putney actually support the Fourth District's creation of a cap. In Webb , although the First District reviewed awards in similar cases, it ultimately determined that the verdict in that case was the product of passion. 93 So.3d at 338-39. Likewise, in Putney , the Fourth District concluded that the award was excessive because "there was not evidence of the type of close or supportive relationship that would justify such an award." 199 So.3d at 471. We do not read either of these cases as creating or suggesting a bright-line cap on noneconomic damages for financially independent adult children.

Even if we were to conclude that Webb and Putney support the Fourth District's creation of a cap, neither the Legislature nor this Court has limited or established a bright-line cap on the amount a survivor may be awarded in noneconomic damages under the wrongful death statute. To the contrary, the Legislature has expressly permitted all adult children of a decedent to recover noneconomic damages for the decedent's wrongful death "if there is no surviving spouse." § 768.21(3), Fla. Stat. (2014). In doing so, the Legislature did not impose a cap on the amount an adult child may recover, nor did it include a requirement that the child be financially dependent on the decedent at the time of the decedent's death. See id.

Thus, the sole requirement for an adult child to recover noneconomic damages for the wrongful death of his or her parent is that the parent must not be survived by a spouse. Additionally, while the Legislature has bestowed upon courts the responsibility of reviewing awards for money damages and remitting awards that are excessive, notably absent from the list of factors in the remittitur statute for courts to consider when determining whether an award is excessive is the "type of relationship" between the decedent and survivor. Odom , 210 So.3d at 701 ; see § 768.74(2), Fla. Stat. (2014).

This Court also has not capped the amount that may be awarded, and we decline to impose such a cap today. Instead, we reaffirm that a verdict should only be held excessive, and thus remitted, where it "evinces or carries an implication of passion or prejudice, corruption, partiality, improper influences, or the like." Lassitter , 349 So.2d at 627. Additionally, while verdicts in other similar cases may be instructive, those cases are not dispositive in determining whether a specific verdict is excessive. Finally, and importantly, courts must resist the urge to "declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed." Bould , 349 So.2d at 1184. Both the Legislature and this Court have aptly recognized that the determination of the appropriate amount of damages is best left to the enlightened conscience of jurors, who know "what is fair and right." Braddock , 80 So.2d at 668.

Having concluded that the Fourth District misapplied the abuse of discretion standard and erroneously capped the amount of damages a financially independent adult child may be awarded for the wrongful death of his or her parent, we now turn to properly apply the abuse of discretion standard to the trial court's denial of R.J. Reynolds' motion for remittitur in this case.

IV. This Case

In this case, the jury was presented with extensive and undisputed evidence of the "very close and unique relationship" that Odom and Thurston shared and the effect Thurston's years-long suffering and eventual death had on Odom. Odom , 210 So.3d at 701. This evidence established that there was not only a loss of parental companionship, instruction, and guidance, but also mental pain and suffering from the date Thurston was originally diagnosed until her death approximately three years later, during which time Odom supported Thurston every step of the way. The jury also heard evidence that, at age fifty-eight, Thurston had a life expectancy of an additional 24.5 years.

While Odom advocated for an award of $5 million, R.J. Reynolds chose not to suggest a specific amount or even a range to the jury. Instead, R.J. Reynolds left the question of how much to award to the "good judgment and common sense" of the jury, asking only whether they wanted to make Odom a "very wealthy person at this stage of her life." Only after the jury returned its verdict did R.J. Reynolds argue that an award in "the $400,000 to $500,000 range" was appropriate. It is difficult for a party to challenge an award as excessive after the fact when that party declined to offer any guidance to the jury at trial. See Hawk v. Seaboard Sys. R.R., Inc. , 547 So.2d 669, 674 (Fla. 2d DCA 1989) (Altenbernd, J., concurring) ("When the defendant does not assist the jury in establishing a range for a verdict, it is more difficult for the defendant to later suggest that a verdict below the plaintiffs' request is somehow a verdict which exceeds the maximum limit of the reasonable range in which the jury was free to operate.").

When ruling on R.J. Reynolds' motion for remittitur, the trial court properly identified the standard for determining if an award is excessive and considered the factors set forth in the remittitur statute. Noting that R.J. Reynolds' argument was based on Webb and Putney , the trial court carefully compared the facts of those cases with this case and determined that they were "simply different." In making this determination, the trial court detailed the undisputed evidence of Odom and Thurston's relationship and how Thurston's cancer and death affected Odom. Concluding that its conscience was "not shocked by the jury's compensatory damage verdict and [R.J. Reynolds] ha[d] identified nothing in the record to suggest that the verdict was the product of passion and prejudice," the trial court denied the remittitur. We conclude that the trial court did not abuse its discretion in denying the motion for remittitur.

Further, we reject the Fourth District's conclusion that the relationship between Odom, a financially independent adult child, and her deceased mother is "not the type of relationship" that can justify a multimillion dollar noneconomic damages award. Odom , 210 So.3d at 701. This Court's precedent clearly allows for a multimillion dollar noneconomic damages award where, as here, the award is supported by the evidence, and is not indicative of passion or prejudice.

CONCLUSION

Because the trial court did not abuse its discretion in denying R.J. Reynolds' motion for remittitur, we quash the decision of the Fourth District and remand with instructions to reinstate the final judgment. We also disapprove Webb and Putney to the extent they are inconsistent with this opinion. Finally, we award Odom attorney's fees for the appeal of this case in an amount to be determined by the trial court because the judgment in this case far exceeds the proposal for settlement filed by Odom, pursuant to section 768.79(1), Florida Statutes (2014), in the amount of $100,000.

It is so ordered.

LEWIS, QUINCE, LABARGA, and LAWSON, JJ., concur.

POLSTON, J., dissents with an opinion, in which CANADY, C.J., concurs.

Because the Fourth District's decision in R.J. Reynolds Tobacco Co. v. Odom , 210 So.3d 696 (Fla. 4th DCA 2016), does not expressly and directly conflict with any of the decisions cited by Odom in her petition for jurisdiction, this Court does not have the constitutional authority to overturn the Fourth District's decision. The majority improperly asserts conflict jurisdiction based on a "misapplication of the abuse of discretion standard." This case was decided on its own set of facts not present in the other decisions. Therefore, I respectfully dissent.

First, Odom does not conflict with Lassitter v. International Union of Operating Engineers , 349 So.2d 622 (Fla. 1976). Lassitter brought an action against a fellow union member, the local union, and international unions for "injuries sustained in union violence" and was awarded $240,000 in compensatory damages and cumulatively upwards of $1 million in punitive damages. Id. at 623. In Lassitter , this Court held that Florida courts are not to require punitive damages to bear some reasonable relationship to compensatory or actual damages. Id. at 626. Nothing in the Fourth District's decision in Odom conflicts with this Court's holding in Lassitter that punitive damages need not bear some reasonable relationship to compensatory or actual damages.

However, in Lassitter , this Court also explained that an appellate court may review a trial court's ruling in denying a motion for a new trial or remittitur only for an abuse of discretion. Id. at 627. This Court in Lassitter stated that "[t]he appellate court should not disturb a verdict as excessive, where the trial court refused to disturb the amount, unless the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate." Id. But contrary to the majority's assertion otherwise, the Fourth District in Odom did not "misapply the abuse of discretion standard" outlined in Lassitter when it examined the jury award in Odom and compared it to awards in similar cases. Instead, the Fourth District in Odom was applying the Lassitter test of reviewing the trial court's ruling of the reasonableness of the award for an abuse of discretion. Odom , 201 So.3d at 701 ("Accordingly, we hold that the trial court abused its discretion when it denied RJR's motion for remittitur or a new trial."). The Fourth District simply concluded that the trial court abused its discretion in permitting an award of compensatory damages outside the reasonable range as exemplified by similar cases. Id. at 699, 701 (explaining that "a compensatory damage award is only excessive if it is so large that it exceeds the maximum limit of a reasonable range" and concluding, "[b]ased on the foregoing precedent, the jury's award of $6 million in compensatory damages to Plaintiff for the loss of her mother was excessive"). Therefore, Odom and Lassitter do not conflict.

Second, Odom does not conflict with Braddock v. Seaboard Air Line Railroad Co. , 80 So.2d 662 (Fla. 1955). In Braddock , 80 So.2d at 663-64, a minor child and his father brought personal injury claims against a railroad after the eight-year-old was struck by a locomotive and lost his left leg. This Court held that an award for future pain and suffering should not be reduced to present value. Id. at 668. This Court in Braddock, 80 So.2d at 668, explained that jurors use their "enlightened conscience" when determining damages for pain and suffering, not mathematical calculations. However, the Fourth District in Odom , 210 So.3d at 701, did not examine whether the compensatory damages should be reduced to the present value, only whether the trial court abused its discretion in its ruling regarding whether the compensatory damages at issue exceeded a reasonable range. Therefore, the two cases do not conflict. The lack of conflict is particularly glaring given this Court's express statement in Braddock , 80 So.2d at 668, that "the question of the excessiveness of the verdicts is neither decided nor precluded by this appeal."

Third, Odom does not conflict with Bould v. Touchette , 349 So.2d 1181 (Fla. 1977). Bould involved an elderly woman who brought a wrongful death action after the deaths of her daughter and son-in-law in a car accident. Id. at 1183-84. This Court applied the Lassitter test and concluded that a jury award of $100,000 for compensatory damages "was not so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate." Id. at 1186. In addition to the difference between the amounts of the compensatory damages involved in the two cases, Bould is factually distinct from Odom in that Bould was an unemployed, elderly woman who had been supported by her daughter and son-in-law for over 30 years at the time of their deaths. Id. at 1185. This Court explained that, "[a]s a result of the death[s], Bould was forced to move into a nursing home in Buffalo, New York, and at the time of trial had lost three years of support." Id. In contrast, Odom was an independent adult child with a family of her own. Odom , 210 So.3d at 701. Therefore, because Bould was dependent upon the decedents and Odom was not financially dependent upon her deceased mother, the cases are factually distinct and do not conflict.

Lastly, the majority claims that this Court has conflict jurisdiction because of the Fourth District's "creation of a bright-line cap on the amount of noneconomic damages a financially independent adult surviving child may be awarded for the wrongful death of a parent." Majority op. at 270. However, as just outlined above, the three decisions alleged to be in conflict by the Petitioner did not involve an award to a financially independent adult surviving child, let alone address whether a cap on noneconomic damages for such individuals is permissible. Moreover, contrary to the majority's claim otherwise, no bright-line cap was announced by the Fourth District's holding. Rather, the Fourth District considered other cases, and the facts in this case, to determine that Odom's relationship did not justify the amount of the award in this case and was outside the range or reasonableness:

Based on the foregoing precedent, the jury's award of $6 million in compensatory damages to Plaintiff for the loss of her mother was excessive. Although the evidence established that Plaintiff and her mother had a very close and unique relationship, at the time of Ms. Thurston's illness and death, Plaintiff was not living with Ms. Thurston and was not financially or otherwise dependent on her. Instead, Plaintiff was married with two children of her own and Ms. Thurston was living with her long-time partner. Although Plaintiff took her mother to many of her appointments and was devastated by her decline and subsequent death, the relationship between an adult child living independent of their parent is simply not the type of relationship which can justify the magnitude of the Plaintiff's compensatory damage award. Accordingly, we hold that the trial court abused its discretion when it denied RJR's motion for remittitur or a new trial.

Odom , 210 So.3d at 701.

Accordingly, because Odom does not expressly and directly conflict on the same question of law with any of the decisions cited by the Petitioner, this Court does not have jurisdiction to review this case. I respectfully dissent.

CANADY, C.J., concurs.

      We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; see also Fla. Ins. Guar. Ass'n, v. Devon Neighborhood Ass'n , 67 So.3d 187, 189 n.1 (Fla. 2011) ("Misapplication of our precedent provides a basis for express and direct conflict jurisdiction."). Because the Fourth District's creation of a bright-line cap and then reliance on that cap to reverse the damages award in this case is both apparent from the face of the opinion (i.e., express) and irreconcilable with the contrary rule of law and abuse of discretion analysis expressly set forth in our precedent (making the conflict "direct"), we have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

      Our relevant precedent is cogently set forth in Bould v. Touchette , 349 So.2d 1181, 1184-85 (Fla. 1977), Lassitter v. International Union of Operating Engineers , 349 So.2d 622, 626-27 (Fla. 1976), and Braddock v. Seaboard Air Line Railroad Co. , 80 So.2d 662, 668 (Fla. 1955).
      In lieu of this Court's precedent, the Fourth District relied on the following district court of appeal cases to reach its decision in this case: Philip Morris USA Inc. v. Putney , 199 So.3d 465 (Fla. 4th DCA 2016) ; R.J. Reynolds Tobacco Co. v. Webb , 93 So.3d 331 (Fla. 1st DCA 2012) ; MBL Life Assurance Corp. v. Suarez , 768 So.2d 1129 (Fla. 3d DCA 2000) ; Nat'l R.R. Passenger Corp. v. Ahmed , 653 So.2d 1055 (Fla. 4th DCA 1995).

      The jury in this case also found that punitive damages against R.J. Reynolds were warranted. Odom , 210 So.3d at 698. The punitive damages award is not separately challenged, but the effect of the Fourth District's reversal of the noneconomic damages award was also a reversal of the punitive damages award. See id. at 701 ("Because the award of compensatory damages must be vacated, we also vacate the award of punitive damages." (quoting Webb , 93 So.3d at 339-40 ) ). Although the liability findings would not have been disturbed, the new jury would have been entitled to hear all the evidence upon which an award of punitive damages could be based.

      Engle v. Liggett Grp., Inc. , 945 So.2d 1246 (Fla. 2006).

      § 768.21(3), Fla. Stat. (2014).

      The jury in Putney awarded $5 million in noneconomic damages to each of the decedent's three surviving adult children, for a total of $15 million. 199 So.3d at 470.

      In MBL Life Assurance Corp. v. Suarez , 768 So.2d 1129 (Fla. 3d DCA 2000), the Third District Court of Appeal reversed $1 million awards to each of the decedent's four children for the wrongful death of the decedent after a boat accident, concluding that the awards "could only have been 'a product of passions and emotions,' rather than a result of the evidence presented." Id. at 1136 (quoting Harbor Ins. Co. v. Miller , 487 So.2d 46, 48 (Fla. 3d DCA 1986) ). In National Railroad Passenger Corp. v. Ahmed , 653 So.2d 1055 (Fla. 4th DCA 1995), the Fourth District affirmed awards of $400,000 to each of the decedent's seven children following a train accident, explaining that there was no indication that the jury was influenced by passion. Id. at 1059-60.

      The prior version of the statute stated that only "[m]inor children of the decedent may ... recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury." § 768.21(3), Fla. Stat. (1987). Additionally, prior to 1979, "minor children" included only "dependent unmarried children under 21 years of age, notwithstanding the age of majority." § 768.18(2), Fla. Stat. (1979). The definition of "minor children" was changed in 1981 to include all children under the age of twenty-five, notwithstanding the age of majority. § 768.18(2), Fla. Stat. (1981).

      Although the trial court would normally determine entitlement to fees based on a proposal for settlement on remand, see § 768.79(6), Florida Statutes (2014), the record reflects that the trial court has already entered an agreed order finding that Odom is entitled to attorney's fees under the statute.