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McQueen v. Jersani8/26/2005
Virginia McQueen ("Virginia"), as personal representative of the estate of her late husband, Milton McQueen ("Milton"), appeals from an order entitled Order Granting Motion for Judgment Notwithstanding the Verdict and Alternatively, Granting Motion for Remittitur. The parties agree that a remittitur was not ordered by the trial court and that remittitur is not an issue on appeal.
Virginia brought a medical malpractice action against her late husband's cardiologist, Dr. Mohan W. Jersani, alleging the defendant breached the applicable standard of care resulting in Milton's death as a result of a heart attack. By the time the case reached the jury, the only relief sought by Virginia related to that provided under section 768.21(2), Florida Statutes, namely for Virginia's loss of the decedent's companionship and for mental pain and suffering from the date of the injury.
Expert medical testimony was presented by each side and the jury returned a verdict in favor of Virginia in the amount of $60,000, reduced to $36,000 as a result of a finding that the decedent was 40% comparatively negligent.
The defendant moved for a judgment notwithstanding the verdict. The trial court granted the motion finding that, as a matter of law, Virginia failed to establish through competent substantial evidence that the defendant breached the standard of care, that such breach proximately caused Milton's death, and that the damages awarded were proven. The court stated in its order that the defendant had saved Milton's life on more than one occasion by timely diagnosing several diseases and that Dr. Stoner, the plaintiff's medical expert, was unable to testify within a reasonable degree of medical probability that Milton would have lived one more moment past the day he died even had he received the appropriate standard of care to which Dr. Stoner testified. The court noted that Dr. Stoner agreed with the defense expert that the defendant had extended Milton's life throughout the years he treated him. The court added there was a "woeful lack of evidence" of Virginia's "past or future loss of her deceased husband's services, comfort, society and attentions."
Standard of Review
The order on appeal is one granting a judgment notwithstanding the verdict ("JNOV"). In reviewing such an order, an appellate court must view the evidence in a light most favorable to the non-moving party, resolve all conflicts in the evidence in favor of the non-movant, and construe every reasonable conclusion which may be drawn from the evidence in favor of the non-movant. See Russell v. KSL Hotel Corp, 887 So. 2d 372 (Fla. 3d DCA 2004). A JNOV is appropriate only in situations where there is no evidence upon which a jury could rely in finding for the non-movant. Id.; Fast Laundry II v. Gray, 861 So. 2d 81 (Fla. 3d DCA 2003).
Virginia argues that viewing the evidence in a light most favorable to her and resolving all conflicts in her favor establishes ample support for the jury's verdict. She asserts that Dr. Stoner's expert testimony amounts to competent substantial evidence that the defendant breached in many ways the applicable standard of care owed by a cardiologist to his patient and that such breach resulted in Milton's death. Virginia additionally maintains her own testimony as to her relationship with her husband of 49 years and the effect his death has had upon her constitutes competent substantial evidence of the loss of companionship damages awarded by the jury. The defendant counters that Virginia failed to present any evidence of the life expectancy of Milton which evidence is essential for consideration on a loss of companionship claim. The defendant additionally asserts that th
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