La Cava & Jacobson, P.A.

Florida Law Weekly – January 23, 2015

Schwartz v. Wal-Mart, (5th DCA) – In this case, the Court of Appeal reversed the Trial Court’s Order granting a Motion for a New Trial on damages in a case involving an incident were the Plaintiff was struck in the back by an ornamental pumpkin while shopping at Wal-Mart. As a result of the incident, she sustained injuries and sought immediate medical attention. While Wal-Mart admitted that the incident occurred, it contested that the incident cause the injuries. In support of this defense, Wal-Mart presented the testimony of a Biomedical Engineer who opined that the degree of force exerted when the pumpkin struck the Plaintiff was well below the injury producing threshold.

After the jury returned a verdict of no damages, the Plaintiff filed a motion for a new trial, citing the general rule that in instances where a jury finds that a Plaintiff was not injured, the Plaintiff is still entitled to recover any expenses for medical examinations and diagnostic testing that was reasonably necessary to determine whether the incident caused her injuries. The Court agreed with this general principal, but noted that one exception occurred where the jury was presented with conflicting medical opinions with respect to causation. In light of the fact that Wal-Mart presented expert testimony that conflicted with the Plaintiff’s case on this issue, the Appellate Court found that the jury was entitled to award zero damages, and that the Plaintiff was not entitled to a new trial.