# Triolo v. United States

> District Court, M.D. Florida · March 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10642127

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642127

## How later opinions describe it (automated extraction)

- finding treating physician’s causation opinion subject to Daubert where physician did not need to know cause of injury in order to treat him
- holding that evidence of “contractual discounts, standing alone, is insufficient to prove that [hospital’s] charges were unreasonable”
- noting that a treating doctor is providing expert testimony if it consists of opinions based on specialized knowledge regardless of whether opinions formed prior to litigation
- finding jury could properly reject the expert testimony of plaintiff’s doctors where jury also heard evidence that plaintiff did not accurately report her previous medical history to the doctors

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

RICHARD A. TRIOLO,

Plaintiff,

v. Case No. 3:18-cv-919-MMH-JBT

UNITED STATES OF AMERICA,

Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE is before the Court for the entry of findings of fact and
conclusions of law. This action arises out of a motor vehicle accident that
occurred in Jacksonville, Florida on February 11, 2017. At the time of the
accident, Plaintiff Richard A. Triolo was driving his 2016 Ford Mustang. Triolo
was stopped at a red light when he was rear-ended by a United States postal
truck driven by Marsha Rentz, an employee of the United States Postal Service
(USPS). As a result of the collision, Triolo filed the instant action against the
United States seeking compensation under the Federal Tort Claims Act, 28
U.S.C. § 1346(b) (FTCA).
The United States has waived sovereign immunity in limited
circumstances for claims for money damages against the United States for
injury, death, or loss of property caused by the negligent or wrongful act or
omission of a federal employee while acting within the scope of his employment.
See 28 U.S.C. § 1346(b)(1). The parties have stipulated that on February 11,

2017, Rentz was an employee of the United States, specifically the USPS, acting
within the scope of her employment, and the Court accepts that Rentz was a
federal employee for purposes of the FTCA. See Pre-Trial Statement (Doc. 59)
at 12.

This Court has subject matter jurisdiction to hear properly filed FTCA
claims arising in the Middle District of Florida. The accident at issue occurred
within the Jacksonville Division of the Middle District of Florida. Prior to filing
suit, Triolo submitted a timely administrative tort claim giving the United

States notice of his claim. See id. at 12. The United States denied the claim.
Having exhausted his administrative remedies, Triolo filed the instant action
over which the Court finds that it has subject matter jurisdiction.
Pursuant to the FTCA, the United States can be held liable in tort in the

same manner and only to the same extent as a private individual under like
circumstances. 28 U.S.C. § 2674. In considering claims brought under the
FTCA, the Court applies the substantive law of the place where the claim arose.
See id. Thus, the substantive law of the State of Florida applies in this case. In

Florida, a plaintiff bears the burden of proving all four elements of negligence
by the greater weight of the evidence. See Jefferies v. Amery Leasing, Inc., 698
So. 2d 368, 370-71 (Fla. 5th Dist. Ct. App. 1997); Fla. Std. Jury Instr. (Civil)
401.2 & 401.3. To prevail on a claim of negligence, a plaintiff must establish the
following:

1. A duty, or obligation, recognized by the law, requiring the
[defendant] to conform to a certain standard of conduct, for the
protection of others against unreasonable risks.
2. A failure on the [defendant’s] part to conform to the standard
required: a breach of the duty . . . .
3. A reasonably close causal connection between the conduct and
the resulting injury. This is what is commonly known as ‘legal
cause,’ or ‘proximate cause,’ and which includes the notion of
cause in fact.
4. Actual loss or damage . . . .

See Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (quoting
Prosser and Keaton on the Law of Torts 164-65 (W. Page Keeton ed., 5th ed.
1984)).
Triolo contends that Rentz negligently operated the USPS truck causing
it to strike the rear of his vehicle and legally causing him to sustain certain
injuries, most significantly permanent injuries to his lumbar spine. The United
States does not dispute that Rentz’s negligence was the sole cause of the
accident, and the undisputed evidence before the Court supports such a finding.
Nonetheless, the United States contends that the accident did not cause any
injury to Triolo’s lumbar spine. Thus, the sole issues in this case are whether
the collision can be considered a legal cause of Triolo’s alleged injuries, and if
so, the extent of his damages.1

The Court conducted a five-day bench trial spanning September 22-24,
2020, September 28, 2020, and October 6, 2020. See Minute Entries (Docs. 79-
81, 83, 85).2 During the bench trial, Triolo testified on his own behalf and called
his treating physicians (Reynaldo Pardo, M.D. and Raymond Topp, M.D.), his

half-brothers (Brian Schmucker and Bruce Schmucker), and a life care expert
(Gil Spruance). The United States called USPS employee Jeanette Sigouin and
presented the testimony of the driver, Marsha Rentz, via her deposition.
Additionally, the Court reviewed evidence introduced by the parties, including

Triolo’s extensive medical records, and photographs of the vehicles at the scene
of the accident. After the close of the evidence, the parties filed proposed
findings of fact and conclusions of law. See Plaintiff’s Proposed Findings of Fact
(Doc. 101; Triolo Proposal), filed January 25, 2021; United States of America’s

1 Triolo’s car was also damaged in the collision, but this loss was resolved
administratively. See Pre-Trial Statement at 12. In addition, the United States does not
dispute that Triolo sustained a “temporary cervical injury” in the accident. See United States
of America’s Post-Trial Proposed Findings of Fact and Conclusions of Law (Doc. 106; Gov’t
Proposal) at 101. According to Triolo, his neck pain resolved a little less than a year after the
accident. Thus, the Court focuses its findings below on the treatment Triolo received for his
lumbar pain.
2 The exhibits admitted at trial are attached to the Exhibit Lists filed on October 6,
2020. See Pl.’s Exs. (Doc. 86); Def.’s Exs. (Doc. 87). Transcripts from the first four days of the
bench trial are in the record at docket entries 88-91, which the Court will cite to as Transcript
Volumes I-IV.
Post-Trial Proposed Findings of Fact and Conclusions of Law (Doc. 106;
Government Proposal), filed February 15, 2021.

Having reviewed the pleadings, examined the evidence, observed the
witnesses, and considered the arguments of counsel, as well as the remainder of
the record, the Court makes the following findings of fact and conclusions of law
as required by Rule 52(a) of the Federal Rules of Civil Procedure (Rule(s)).

I. Findings of Fact
A. The Plaintiff
Plaintiff Richard Triolo is a respiratory therapist at Baptist Medical

Center South (Baptist South). He was forty-two years old at the time of the
accident. Triolo grew up in New York where he was the star quarterback on his
high school football team. After graduation, Triolo worked at UPS as a part-
time pre-loader, and full-time as a “stock boy” at a local electronics store. Both

jobs by his own account involved physically demanding work. After a few years,
he entered the construction industry, first as a heating, ventilation, and air
conditioning (HVAC) fabricator and then for over ten years as an HVAC
installer. During this time, Triolo continued to play sports in adult leagues,

including football, basketball, and softball. In March of 2012, Triolo moved to
Jacksonville, Florida where his two half-brothers lived and enrolled in school to
become a respiratory therapist. He completed the program in 2013 and has been
working at Baptist South since March of 2014. Triolo’s schedule at Baptist
South includes seven, 12-hour shifts every two-week period. In 2016, to
supplement his income, he began working at Orange Park Medical Center as

well.3 Although not as strenuous as his prior jobs, Triolo’s work as a respiratory
therapist requires him to be on his feet and walking around the hospital
throughout his shift.
While living in New York, Triolo was in two significant car accidents. In

2000 or 2002, Triolo hit a patch of black ice and ran off the road into a fence.
The fence broke his window and fractured his left arm. Additionally, in 1995,
Triolo was in a head-on collision where both vehicles suffered extensive front-
end damage and his air bag deployed. Although Triolo was not injured, the

driver of the other vehicle died. Triolo did not disclose this accident during
discovery. See Def.’s Ex. 12 ¶ 22. Troublingly, Triolo also failed to disclose this
accident during his direct examination despite being asked whether he had been
in any accidents, “of any kind whatsoever,” other than the black ice incident and

the accident precipitating this lawsuit. See Tr. Vol. I at 43. Indeed, despite
multiple opportunities, he did not admit to having been in the 1995 accident
until directly questioned about it on cross-examination at which time he insisted

3 At the time of trial, Triolo was no longer working at Orange Park Medical Center.
But, as relevant here, he was working for both hospitals at the time of the accident and at least
through the date of his back surgery.
that he had failed to disclose it because he did not “feel it was relevant.” See Tr.
Vol. I at 261.4 Rather incredibly, despite being a former football player who was

involved in two serious motor vehicle accidents and had worked for over a
decade in labor-intensive jobs, Triolo testified that the accident at issue in this
lawsuit was the first time in his entire life that he felt “any” pain in his neck or
back. Id. at 301. Based on the foregoing, and as noted in the factual findings

that follow, the Court did not find Triolo to be an entirely credible witness.
B. The Accident
At one o’clock in the afternoon on February 11, 2017, Triolo was driving
his 2016 Ford Mustang south on Old St. Augustine Road in Jacksonville, Florida

on his way to his brother’s house. Triolo was wearing his seatbelt and his dog
was sleeping unsecured in the passenger seat. Rentz was also driving south on
Old St. Augustine Road in a USPS mail truck owned by the United States. The
parties stipulated that: “Both [Triolo and Rentz] were stopped at a red light and

4 Unfortunately, Triolo exhibited a pattern of failing to disclose information he did not
believe was important. In response to the government’s interrogatory asking whether he had
ever made a worker’s compensation claim, Triolo answered no. See Def.’s Ex. 12 ¶ 24.
However, during the bench trial, Triolo conceded on cross-examination that he had at least
three prior injuries that were covered by worker’s compensation—a broken foot at UPS, as well
as a broken hand and a sprained ankle while working for an HVAC company. During discovery
Triolo also responded that he had never been convicted of a felony or misdemeanor, id. ¶ 25,
whereas at trial he conceded that he did have a driving under the influence adjudication,
although he was not sure if it was classified as a misdemeanor. Triolo’s medical records also
reflect incomplete information and inaccuracies in the forms Triolo completed which suggest
to the Court that Triolo is not a reliable historian.
had been traveling in the rightmost lane.” See Pre-Trial Statement (Doc. 59) at
11 (emphasis added). Triolo was approximately three or four cars back from the

light when he was hit from behind by the postal truck. Triolo’s car moved
forward from the impact but did not hit the car in front of him. Immediately
after impact, Triolo and Rentz moved their vehicles to a nearby parking lot and
Triolo contacted the police.

Pursuant to the parties’ stipulation, “[t]he accident was reported to law
enforcement at 1:08 p.m.,” an officer “arrived on the scene at 1:25 p.m. and
cleared the scene at 1:46 p.m.” See id. at 12.5 Triolo’s brother Brian Schmucker
also came to the scene of the accident as well as two USPS employees, Jeanette

Sigouin and Crystal Thomas. Pictures of the vehicles reflect that Triolo’s license
plate was bent inward, there were significant paint scratches around the license
plate and along the bumper, and the bumper was knocked loose and slightly
ajar. See Pl.’s Ex. 34. Triolo’s car did not sustain any structural damage.6 The

5 Triolo testified that he was at the scene of the accident for about two hours, and
indeed, he arrived at the nearby Baptist South Emergency Department at 2:56 p.m. However,
given the parties’ stipulation regarding the officer’s arrival and departure times, the Court
rejects Triolo’s explanation that he was on the scene for two hours because it took “forever” for
the officer to arrive, and then “after he got there, it took forever to get the police report.” See
Tr. Vol. I at 50-51. It is unclear what Triolo was doing for the hour between when the officer
cleared the scene and when Triolo arrived at the Emergency Department.
6 Triolo had the Mustang repaired after the accident which required replacement of the
bumper and reverse sensors, and repairs to the valance panel. See Def.’s Ex. 3.
postal truck had what appeared to be paint marks along the large rubber front
bumper.7 See Pl.’s Ex. 35.

According to Triolo, the impact from the USPS truck was “hard” and
although he does not know how fast the truck was traveling, he testified that it
“could” have been 30 or 40 miles an hour.8 Triolo testified that the impact
caused his seat back to suddenly recline. He also testified that immediately

after the collision he looked in the rearview mirror and saw Rentz holding a
cellphone with a surprised look on her face. According to Rentz, she was at a
stop waiting for Triolo’s car to start moving after the light turned green when
her foot slipped off the brake and she rolled into his car. She estimated that the

truck was rolling five miles per hour or less and described the impact as
“medium.” She testified that she was not on her cell phone at the time of the
accident and that she never pressed the accelerator.

7 The pictures also show that the front grill of the postal truck is bent slightly inward.
Based on the height of the grill, the size of the postal truck’s bumper, and the location and
degree of the damage to Triolo’s car, the Court credits Sigouin’s assessment that the dent in
the postal truck’s grill was preexisting and not a result of the accident.
8 Triolo went to a chiropractor five days after the accident whose records include a
summary of the accident with a notation that the USPS truck was traveling approximately 30-
40 miles per hour. See Pl.’s Ex. 6 at JSS_02. When presented with this record on cross-
examination, Triolo testified that he did not recall the exact speed, but Rentz “could” have been
traveling that fast. See Tr. Vol. I at 177. Later, on redirect, Triolo testified that he does not
know if that estimate is accurate and maintained that the chiropractor did not get that
information from him. See Tr. Vol. II at 19.
Upon review of the evidence, the Court is convinced that, regardless of
whether Rentz was on the phone at the time, this was a low-speed accident.

While the surprise of the impact likely felt “hard” to Triolo, especially given the
size of the USPS truck, the Court finds that the mail truck rolled into the back
of Triolo’s car and was likely going around 5 mph. The damage to the vehicles
is simply not consistent with an impact from a vehicle traveling at an

accelerated rate of speed. Nor is it plausible that Rentz was traveling at a high
rate of speed given the parties’ stipulation that both vehicles were stopped at
the red light. It is also significant that the impact did not cause Triolo to hit the
car in front of him at the light.9 Having determined that this was a low-speed

accident, the Court rejects Triolo’s testimony that the impact caused his power
seat back to suddenly recline. Significantly, Triolo took pictures of the damage
to his car after the accident but did not take a picture of the reclined seat.10 The
fact that his seat did not need to be repaired following the accident casts further

doubt on Triolo’s credibility and his version of the accident. And notably, this

9 The fact that the unsecured dog sleeping in the passenger seat was apparently
uninjured from the accident also supports the Court’s finding that this was a low-speed impact.
10 Brian Schmucker testified that he came to the scene of the accident and observed the
damage to the outside of Triolo’s vehicle but did not look inside Triolo’s vehicle or notice
whether the seat was reclined. Had the seat actually reclined in the sudden and surprising
manner Triolo described, the Court finds it implausible that Triolo would not have shown it to
his brother, especially given Triolo’s testimony that he immediately began experiencing back
pain at the scene of the accident.
detail would have been significant to his complaints of neck and back pain, yet
it is not reflected in any of his medical records, nor did he mention it in his

discovery responses.11
Triolo testified that immediately upon impact he felt a twinge in his back.
According to Triolo, during the two hours he was on the scene of the accident,
his back started getting worse, with the pain extending up into his neck.

Likewise, Triolo’s brother testified that he observed Triolo at the scene of the
accident moving and stretching in a manner that indicated he was in pain.
Triolo testified that he told Rentz, as well as the USPS employees that came to
the scene that he was injured. In contrast, Rentz testified that Triolo told her

he was okay. Jeanette Sigouin, the USPS supervisor who came to the scene of
the accident, also testified that Triolo said he was “okay.” According to Sigouin,
Triolo did not appear to be in any pain. Sigouin filled out a USPS accident report
the day of the accident and noted that Triolo had no injuries. Having heard the

testimony of Triolo, his brother, and Sigouin, the Court finds that while Triolo

11 The record of Triolo’s visit to a chiropractor less than a week after the accident
contains a description of the accident, including a note that his “entire rear end had to be
replaced,”—a statement that is factually inaccurate and a significant exaggeration. Yet, Triolo
did not mention his seat back suddenly reclining. In addition, in response to the government’s
interrogatory asking him to “describe in detail” how any part of his body contacted any portion
of the car’s interior, Triolo responded only that “[t]he back of my head hit my seat.” See Def.’s
Ex. 12 ¶ 8.
may have initially said he was “okay,” he did begin experiencing some
discomfort in his lower back at the time of the accident.

C. Medical Care
i. Emergency Department
After the accident, Triolo drove himself to the Baptist South Emergency

Department. Based on the Baptist South records, Triolo reported that he “was
a restrained driver at a stoplight when a mail truck rear ended his vehicle at a
moderate speed.” See Pl.’s Ex. 2 at BMC_03. Triolo denied hitting his head,
losing consciousness or any bleeding, but reported having neck and back pain

that was moderate at onset, and moderate at the time of the exam. Id. Triolo
received a CT scan of his neck which showed “[n]o acute process” and “chronic
degenerative changes.” Id. at BMC_04. He was discharged with a cervical collar
and a prescription for a two-day supply (8 tablets) of Lortab. Id. at BMC_04-05.

In the week following the accident, Triolo worked over 47 hours at Baptist
South. Notably, the Baptist South records reflect that on March 4, 2017, Triolo
requested more Lortab for his pain and was prescribed 28 additional tablets.
See id. at BMC_02.

ii. Chiropractor
Five days after the accident, on February 16, 2017, Triolo began treating
with Michael McDaniels, a chiropractor at Jacksonville Sport & Spine. See Pl.
Ex. 6. In the forms completed the day of the initial visit, Triolo described his
primary health complaint as “upper neck pain, upper and lower back pain, [and]
shooting pain into the lower right glut[e] [and] into the lower right hamstring.”

Id. at JSS_01.12 McDaniels noted the following subjective complaints: “In a lot
of pain, waking up at night, sharp pains, can’t sit for too long, can’t stand for too
long. Experiencing headaches constantly, dizzy; ringing in the ears, anxiety.”
See id. at JSS_10. According to the notes, Triolo reported right sided lower back

pain, right lateral leg pain, constant neck pain and tightness, as well as pain in
between his shoulder blades. Id. Triolo also told McDaniels that people he
worked with had noticed he was limping. Id. On a Pain Disability
Questionnaire, Triolo recorded that the pain was so severe he was unable to “lift

objects off the floor, bend, stoop, or squat,” run, or “see the people who are
important to [him].” Id. at JSS_03. He also reported that his pain was causing
“severe” emotional problems interfering with his “family, social and or work
activities,” as well as “severe depression/tension.” Id.

At this first visit, McDaniels referred Triolo for an MRI and a neurological
evaluation with Syed Asad, M.D. Id. at JSS_13-14.13 McDaniels also

12 The intake form indicates that Triolo was referred to Jacksonville Sport & Spine by
Philip Kinney, who represents him in this action. See id. at JSS_01. Triolo testified that one
of his coworkers knows Kinney and reached out to him on Triolo’s behalf for information on
chiropractors. According to Triolo, he hired Kinney to represent him in this matter a week
after this visit.
13 Triolo had his first visit with Asad a month later, on March 16, 2017, and obtained
his first MRI seven weeks after the accident, on April 4, 2017, upon Asad’s referral.
recommended that Triolo take the following week—through February 24,
2017—off work. Despite this recommendation, Triolo testified that he did not

take any time off due to the accident. At trial, Triolo explained that he loved
his job and needed “to pay bills like anybody else.” See Tr. Vol. I at 66.
Employment records show that Triolo did take 16 hours of leave the week of
February 19-25, 2017, and 12 hours of leave the week of February 26 through

March 4, but Triolo does not recall why he took that time off. Notably, Triolo
attended the Daytona 500 on February 26 of that year, which involved driving
to Daytona in the morning, sitting in the stadium to watch the race in the
afternoon, and driving home that same day. Triolo recalls it being a “good day.”

See Tr. Vol. I at 196.
McDaniels initially recommended that Triolo continue with treatment
three times a week for 2-4 weeks. See Pl. Ex. 6 at JSS_12. However, Triolo did
not return to McDaniels for treatment until five days later, on February 21,

2017. At that time, McDaniels decreased his recommendation to once a week
for 2-4 weeks. Id. at JSS_16. Triolo saw McDaniels four times in March, and
then twice a month in April, May, June, and July. See id. at JSS_09. According
to Triolo, his treatment with McDaniels provided very minimal and only very
temporary relief to his neck and back pain, and no relief at all from the pain
radiating down his right leg.14

iii. Neurologist
Triolo had his first appointment with a neurologist, Syed Asad, M.D., on
March 16, 2017. See Pl.’s Ex. 13 at UNC_02. Asad’s records reflect that Triolo
told him he was “stopped at a stop light when a USPS truck hit the back of his

car,” and “[h]e felt his head jerk back and forth and the back of his head hit the
headrest.” See id. Asad also recorded that “[i]mmediately after the accident,
[Triolo] was experiencing tightness and spasms in the mid and low back,” and
“noticed pain in the neck the day after the accident.” Id. Triolo reported a

variety of complaints to Asad including: neck pain; headaches; “achy, sharp and
stabbing” low back pain rating 10/10 on a pain scale; radiating pain down his
right side; and his legs sometimes feeling like Jell-O. Id. According to Asad’s
notes, Triolo stated that his pain was “worse when he is walking around and

relieved when sitting” and that he “wakes up constantly in the middle of the
night due to the pain.” Id. Based on his examination, Asad diagnosed Triolo
with lumbar radiculopathy, neck pain, insomnia, abnormal gait and mobility,
impaired cognition, and postconcussional syndrome. Id. at UNC_05.

14 Perplexingly, in contrast to this testimony, when Triolo saw a neurologist on March
16, 2017, he reported that he was receiving treatment from McDaniels twice a week and these
treatments were helping his lumbar pain as well as his neck pain. See Pl.’s Ex. 13 at UNC_24.
Asad ordered, inter alia, an MRI of the lumbar spine as well as an
EMG/nerve conduction study. Id. at UNC_06. He referred Triolo for a Balance

Master assessment15 and prescribed various medications16 and supplements to
address the reported sleep issues, neck pain, headaches, and back pain. Id. at
UNC_06-07. Asad also discussed other treatment options with Triolo including
an MRI of his brain, a referral for neuro-psychometric testing, and trigger point

injections (abbreviated as TPIs) for neck pain. Id. Triolo declined or indicated
that he preferred to “hold off” on those. Id.
Triolo underwent an MRI of his lumbar spine on April 4, 2017. See Pl.’s
Ex. 3. The MRI was read by a board-certified radiologist, Soheil Sooudi, M.D.

Id. at BMRI02. Sooudi enumerated the following impressions:
1. Bilateral L5 spondylolysis with grade 1 spondylolisthesis at L5-
S1 level.
2. Degenerative spondylosis with disc desiccation and disc space
narrowing at L5-S1 level with circumferential disc bulge
resulting in bilateral foraminal stenosis in combination with
anterior L5 subluxation encroaching upon the L5 nerve roots.
3. Disc desiccation with disc space narrowing at T12-L1 level with
protruding posterior disc herniation indenting the anterior

15 There is no evidence that this assessment was ever performed and Triolo testified
that he does not recall this referral.
16 Over the course of his treatment with Asad, Triolo was prescribed a muscle relaxant,
a nerve pain medication, a Medrol Dosepak, and lidocaine cream. See id. at UNC_05, 17; see
also Pl.’s Ex. 14 at WALGREENS_02-04. According to Asad’s records, Triolo reported that the
Medrol and lidocaine cream were not helpful. Id. at UNC_24. Triolo testified at trial that the
muscle relaxant and nerve pain medicine provided “very minimal” relief. See Tr. Vol. I at 207-
08.
thecal sac with spinal canal narrowing and no cord
impingement.
4. Annular bulge at L2-3 and L3-4 levels encroaching upon
foramina with no spinal stenosis or nerve root impingement.

Id. In his findings, Sooudi identified “mild facet joint arthropathy,” bilaterally
at L4-5, and predominately on the right side at L3-4. Id. at BMRI_01. Triolo
underwent the nerve conduction study and EMG on May 10, 2017. See Pl.’s Ex.
13 at UNC_17. The nerve conduction study showed responses within the normal
limits, however the EMG identified deficits “which likely represent chronic
proximal pathology such as radicular disease at the right L5-S1 level.” Id.
Triolo’s last visit to Asad’s office was on May 25, 2017. On that date, he
was seen by Lindsay Chason PAC. See Pl.’s Ex. 13 at UNC_24. Chason’s notes
reflect that Triolo’s headaches and short-term memory were improving. Id. at

UNC_25. With regard to his lumbar pain, Chason instructed Triolo to continue
with chiropractic care and planned to refer Triolo to a Dr. Kramarich for pain
management and a Dr. Cannestra for a surgical option. Id. At trial, Triolo
testified that he does not recall those referrals and did not see those doctors.

According to Triolo, Asad referred him to Reynaldo Pardo, M.D. for pain
management.
iv. Pain Management
Pardo is a board-certified medical doctor with a specialty in

anesthesiology and a subspeciality in interventional pain medicine. He has
operated an interventional pain clinic as a solo practitioner since 2011. Pardo
began treating Triolo on July 11, 2017. At this visit, Triolo entered into an

assignment of insurance benefits agreement with Pardo’s office. See Def.’s Ex.
20 at SJIPS_15. Although Triolo had incurred nearly $100,000 in medical fees
at Pardo’s practice by the time of trial, Pardo denied being aware of how Triolo’s
bills were to be paid. Pardo has “[p]robably” treated at least two patients who

were represented by the same legal counsel as Triolo. See Tr. Vol. II at 163.
At his initial visit, Triolo reported to Pardo that he was “stopped at a
traffic light when he sustained a rear end collision” and that he suffered “blunt
trauma” and was “dazed.” See Pl.’s Ex. 9 at SJIPS_09. Triolo complained of

severe lower back pain, radiating down the right side, as well as neck pain.
Triolo stated his pain was aggravated by “prolonged standing, prolonged sitting,
going from sitting to standing position, [and] long car rides . . . .” Id. He also
complained of “significant night pain which interrupts his sleep frequently, and

severe morning pain and stiffness.” Id. Notably, around this same time in the
summer of 2017, Triolo went on a lengthy road trip to the Florida Keys for a
vacation with friends.
Pardo performed an examination of Triolo including palpating his spine,

testing the degree of flexion and extension in his spine, a Fortin finger test, and
a sensory test. The results of the physical examination indicated to Pardo that
Triolo was suffering from facet joint injuries as well as nerve root compression.
Pardo opined that the MRI report was consistent with his findings from the
physical examination of Triolo.17 Pardo testified at trial that Triolo’s MRI film

showed a 5-millimeter, grade 1, anterior spondylolisthesis at L5-S1, i.e., a
vertebra slipping forward and compressing Triolo’s nerve roots. Pardo
explained that the slippage was the result of a fracture to the pars
interarticularis at L5. In Pardo’s opinion, the injuries to Triolo’s facet joints at

L3-4, L4-5 and L5-S1, as well as the pars fracture were caused by the motor
vehicle collision. Pardo also noted that the disc at L5-S1 was dried up and
herniating. Pardo opined that the disc likely had desiccation prior to the
accident “but the motor vehicle collision aggravated the condition.” See Tr. Vol.

II at 102. However, according to Pardo, Triolo’s pain was not caused by the disc
desiccation.18
At the initial visit, Pardo gave Triolo a lumbar epidural steroid injection
to alleviate his back pain. Pardo also prescribed various medications to Triolo

including an anti-inflammatory, an antidepressant and a mild narcotic pain

17 Pardo testified that “[a]t some point,” he reviewed the MRI film itself, most likely
within the first three or four visits, although not at the time of this first visit. See Tr. Vol. II
at 95-96, 166.
18 Significantly, Triolo has never claimed that the accident aggravated any pre-existing
condition and that is not an issue in this case.
medication, hydrocodone (Narco). See Pl.’s Ex. 9 at SJIPS_14.19 Triolo returned
to Pardo on July 20, 2017, and reported that the injection had not provided any

significant relief. At that visit, Pardo performed a prognostic medial nerve block
to determine whether the injuries to Triolo’s facet joints were the main
generator of his pain. Because Triolo reported no significant relief from the
procedure, Pardo concluded that Triolo’s pain was coming from a different area,

likely the nerve root compression from the slippage of his vertebra at L5-S1.
On August 11, 2017, Pardo attempted to relieve Triolo’s pain with another
steroid injection at a different location on his spine. However, when Triolo
returned on August 31, 2017, he reported that his pain had only increased.

Pardo testified that the increase in pain was likely because the fluid in the
injection increased the compression of the nerve root. Given Triolo’s significant
pain, Pardo prescribed an additional narcotic painkiller, an extended-release
morphine sulfate.20 Triolo next saw Pardo on October 3, 2017, and reported

19 At trial, Triolo testified that Pardo prescribed Percocet at this initial visit. However,
according to the records, Pardo initially prescribed Narco, which is hydrocodone. Pardo did
not prescribe Percocet, which is oxycodone, until March 19, 2018, around the time of Triolo’s
back surgery. Compare Pl.’s Ex. 14 at WALGREENS_05 with id. at WALGREENS_13; see
also Pl.’s Ex. 9 at SJIPS_11, 14, 55.
20 Triolo testified that he took morphine every single day until the summer or fall of
2019, when he decided to stop taking it for fear of becoming addicted. Pardo’s records indicate
that the last time he prescribed an extended-release morphine pill was November 12, 2018.
Triolo said he stopped “cold turkey” and went through withdrawals for a month. Pardo also
recalled that Triolo independently decided to stop taking the morphine and went through
withdrawals.
Notably, the only record that Triolo ever filled his prescription for morphine is a
dispersal of 60 pills from a Walgreens pharmacy on October 31, 2017. See Pl.’s Ex. 14 at
“moderate sustained relief” from the morphine. See Pl.’s Ex. 9 at SJIPS_31. At
that time, Pardo referred Triolo to Constantine Toumbis, M.D., an orthopedic

spine surgeon for an evaluation of his surgical treatment options. Id. at
SJIPS_32. Triolo continued to see Pardo about once a month following the
referral but, having determined that surgery was the next step, Pardo did not
perform any more interventions.

v. Surgery
Triolo saw Toumbis on October 20, 2017. According to Toumbis’s records,
he performed a physical exam of Triolo and noted that his spine was “nontender

to palpation” and his “[r]ange of motion throughout spine is within normal
limits.” See Def.’s Ex. 21 at OPSI_0003. Triolo brought the MRI report and disc
to the visit with Toumbis. According to the medical records, Toumbis made the
following diagnosis:

MRI of the lumbar spine is significant for pathology at the L5-S1
motion segment. There is a grade 1 spondylolisthesis of 5 mm onto
S1 caused by a bilateral pars interarticularis defect. This is a
degenerative spondylolisthesis as there is no evidence of bone
marrow edema surrounding the pars interarticularis. The
anterolisthesis has caused significant disc degeneration at this
level and has contributed to severe neural foraminal narrowing on

WALGREENS_09. At trial, Triolo suddenly recalled that he had to use a separate pharmacy
to obtain the morphine pills because Walgreens did not provide that medication. See Tr. Vol.
I at 267-68. However, Triolo did not disclose the other pharmacy in discovery and could not
remember its name. And, although Pardo testified that it is routine practice to conduct random
urinalysis on patients who are prescribed opioid medication, there is no indication in Pardo’s
medical records that Triolo was ever subject to such screening. The Court finds it unlikely
that Triolo was regularly taking the morphine pills.
the right and moderately severe neural foraminal narrowing on
the left. The rest of the MRI is largely unremarkable.

See id. at OPSI_0004 (emphasis added). Toumbis noted that Triolo had tried
significant conservative treatment modalities, and “[a]t the present time he
occasionally requires hydrocodone in order to manage his pain.” Id. Due to “the
persistent and severe nature of his pain,” Toumbis concluded that Triolo was a
“surgical candidate for a posteriorlumbar interbody fusion of L5/S1.” Id. at
OPSI_0004.

Triolo was not prepared to commit to back surgery at that time and
wanted a second opinion. Pardo then referred Triolo to Raymond Topp, M.D.,
an orthopedic spine surgeon with an office in Jacksonville Beach, Florida. Triolo
had his first appointment with Topp on November 8, 2017, at which time his

chief complaint was lumbar spine pain. See Pl.’s Ex. 11 at TOPP_04. As with
Pardo, on his first visit with Topp, Triolo executed an assignment of benefits,
i.e., a letter of protection. See Def.’s Ex. 22 at TSO_03. Upon examination of
Triolo and after review of his MRI films and report, Topp also recommended

surgery. Specifically, Topp recommended a posterior lumbar interbody fusion
(PLIF) of the L5 and S1 vertebra to stabilize Triolo’s spine and prevent the
slippage that was causing the neural impingement. See Pl.’s Ex. 11 at
TOPP_07. In his notes, Topp observed that Triolo had “failed conservative

treatment (medications and ESIs)” and “require[d] narcotic pain medication to
control pain from accident.” Id. Triolo returned to Topp on February 21, 2018,
at which time he decided to proceed with the recommended surgery. See id. at

TOPP_10.
Triolo underwent the recommended spinal fusion surgery with Topp on
March 22, 2018, at the Jacksonville Beach Surgery Center. See id. at
TOPP_13.21 The surgery proceeded without complication and Triolo was

discharged to his home the same day. Following surgery, at Topp’s
recommendation, Triolo took ten weeks off work to recover.22 Triolo was
provided home visits from a skilled nurse for post-operation monitoring and
wound care. See Def.’s Ex. 25 at TRIOLOGY_0018.23 Although the surgery

resolved Triolo’s right-sided pain, particularly the pain radiating down his leg,
Triolo soon began experiencing pain on his left side, radiating down into his left
leg.

21 Triolo testified that he did not return to Toumbis for surgery because Toumbis’s
practice had moved substantially farther away. Records reflect that Triolo did stay in contact
with Toumbis’s office because in the fall of 2018, he contacted Toumbis to inquire about having
him review an updated MRI. See Def.’s Ex. 21 at OPSI_0007.
22 Triolo had paid leave for the first two weeks and received six weeks of disability pay
at 60% of his weekly wage. Triolo received no compensation for the last two weeks. Triolo’s
weekly wage at that time was $936.86. Thus, Triolo’s lost wages following the surgery totaled
$4,122.18. See Tr. Vol. I at 117-19.
23 Although the referral provided for five visits, Triolo canceled the skilled nursing
services after three visits. See Def.’s Ex. 25 at TRIOLOGY_0018, 60, 65, 70, 72.
vi. Post-Surgery Treatment
Following surgery, at Topp’s referral, Triolo had a lumbar x-ray and

lumbar CT scan which showed that Triolo had normal post operative changes
and was healing well. See Pl.’s Ex. 11 at TOPP_22, 24. On April 5, 2018, Triolo
had an appointment with Pardo at which time he complained of pain in his lower
back radiating down his left leg. Pardo recommended, inter alia, that Triolo

“participate in postoperative rehabilitation therapy.” See Pl.’s Ex. 9 at
SJIPS_60. Triolo had an appointment with Topp on April 11, 2018, at which
time Topp also recommended he start physical therapy. See Pl.’s Ex. 11 at
TOPP_22. Topp referred Triolo to Heartland Rehab with a prescription for

physical therapy 2-3 times a week for four weeks. See id. at TOPP_58, 59.
According to Topp’s records, Heartland Rehab did not accept letters of
protection. Id. at TOPP_59. The records indicate that Triolo was to identify a
different location that would accept a letter of protection and Topp would send

the prescription there. Id.
Ultimately, Triolo did not see a physical therapist until August 2, 2018,
when he was evaluated at Select Physical Therapy. See Pl.’s Ex. 8. The physical
therapist evaluated Triolo and opined that he “would benefit from skilled

physical therapy services to improve flexibility of the piriformis muscles,
improve active stabilization of the lumbar spine with neuromuscular re-
education, and manual therapy with neural gliding to reduce compression upon
the left L5 nerve root and peripheral track.” See id. at SPT_09. The records
reflect a determination that Triolo’s “[o]verall rehabilitation potential is

excellent,” and include a recommendation that he attend rehabilitative therapy
for two visits a week over four weeks. Id. at SPT_09-10. Triolo never returned
to Select Physical Therapy for any further rehabilitative therapy. Instead,
Select Physical Therapy discharged Triolo so he could obtain therapy at Baptist

Medical where his treatment would be at no cost to him. See id. at SPT_15. But
Triolo did not obtain physical therapy at Baptist Medical either. At trial, Triolo
explained that he had learned enough to be able to do the therapy at home.24 As
such, other than the initial evaluation at Select Physical Therapy, Triolo never

received any formal physical therapy following his surgery.
Throughout the summer, Triolo continued to treat with Topp. At a May
2, 2018 follow-up appointment, Topp noted that Triolo was experiencing “usual
post operative pain and is improving,” and cleared Triolo to return to work on

May 31, 2018, “with no limitations.” See Pl.’s Ex. 11 at TOPP_24. At
subsequent appointments, Topp determined that Triolo was experiencing

24 The Court rejects this explanation as Triolo had only attended one physical therapy
session when he decided to stop going. Notably, Pardo testified that post-operative therapy
was “highly recommended,” see Tr. Vol. II at 177, and Topp observed that “the surgery is not
the most important part. The recovery and therapy and the healing process, that’s going to
take some time, so you have to really dedicate yourself to it,” see id. at 242 (emphasis added).
Indeed, to the extent Topp suggested that some patients can do home therapy instead, he did
so in reference to patients that had been attending physical therapy “for many months before
their surgery, so they know the exercises.” Id. at 258. This scenario does not apply to Triolo.
sacroiliac joint dysfunction secondary to his surgery and recommended an MRI
of his lumbar spine. See id. at TOPP_25-30. Upon review of the MRI, performed

on August 30, 2018, Topp determined “neural stretching is the likely etiology
for [Triolo’s] post op leg pain,” and recommended an epidural steroid injection
at the L5-S1 level. Id. at TOPP_30. Triolo had the injection on September 13,
2018. According to Topp’s records, Triolo reported “excellent relief of his pain”

at the time, see id. at TOPP_33, but at an appointment with Pardo two weeks
later, Triolo “denie[d] any significant relief” from the injection. See Pl.’s Ex. 9
at SJIPS_90. Triolo has received no further treatment from Topp.
Triolo also continued to treat with Pardo. To address his left-sided pain,

Triolo received a transforaminal steroid injection on July 5, 2018, and reported
two days of pain relief. Nevertheless, his pain persisted and at his appointments
with Pardo in August, September, and October of 2018, Triolo rated his left
lower back pain at levels 8 and 9. See Pl.’s Ex. 9 at SJIPS_85, 89, 93. Despite

his significant pain, Triolo did ride his motorcycle to Biktoberfest in October of
2018.
Due to his continuing reports of significant back pain, Triolo underwent
diagnostic medial branch blocks in October of 2018. The results of these

procedures indicated to Pardo that the source of Triolo’s pain was the left side
of his facet joints at L3-4, L4-5, and L5-S1. According to Pardo, these facet joint
injuries likely stem from the accident and were aggravated by the lumbar
fusion. Based on this diagnosis, Pardo performed a left-sided radiofrequency
ablation at those joints on November 8, 2018, which resulted in significant pain

relief. Nevertheless, when the left-sided pain improved, Triolo began to
experience “slight right lumbar pain.” See Pl.’s Ex. 9 at SJIPS_117. As such,
Pardo recommended a radiofrequency ablation on the right side to relieve the
facet joint pain. Id. at SJIPS_125.

Triolo’s pain generally continued to improve following the November 8,
2018 radiofrequency ablation, until March 28, 2019, when Triolo reported to
Pardo that his pain was “worse” and stated that the pain was located on both
the left and right side of his lower back, with pain radiating into his left

hamstring. See id. at SJIPS_128.25 Significantly, Pardo’s records indicate that
Triolo denied any recent injuries. Id. at SJIPS_128-129. However, this
representation was not accurate. A month earlier, Triolo had visited his
primary care physician on February 28, 2019, complaining of Achilles

discomfort on his right side. See Pl.’s Ex. 4 at BPC_1.26 Triolo had been

25 Triolo rated his pain a level seven at this visit. See Pl.’s Ex. 9 at SJIPS_128. He
reported that the pain is “aggravated with activity, lumbar flexion-extension and over the
shoulder work.” Id. at SJIPS_129. The Court notes that in March of 2019, Triolo was able to
attend Bike Week, riding his motorcycle there and back.
26 Triolo also had an appointment with Pardo on February 28, 2019, but appears to have
said nothing about his difficulty walking, the ladder incident, or his fear that he was
aggravating his back injury. At this appointment, Triolo rated his pain at a level 2 and
reported that it was “much better.” See Pl.’s Ex. 9 at SJIPS_123-24.
experiencing the discomfort for a few weeks which he attributed to walking
differently from his back problems. Id. He also reported to his primary care

physician that he had felt a “twinge coming down off [a] ladder a few days ago”
and the pain had been getting worse ever since. Id. Triolo’s primary care doctor
referred him to a podiatrist who, on March 14, 2019, instructed Triolo to wear a
CAM walker for all ambulating. See Def.’s Ex. 32 at JEFAA_03. On April 5,

2019, Triolo returned to the podiatrist at which time he reported that he had
been wearing the boot as instructed “until two days ago.” Id. at JEFAA_05. The
podiatrist advised Triolo to continue wearing the CAM walker “for ambulating
and gradually transition into a sneaker as tolerated.” Id. at JEFAA_06.

Although Triolo had two appointments with Pardo over that time, the
records of those visits do not contain any reference to an Achilles injury or the
use of a walking boot. See Pl.’s Ex. 9 at SJIPS_128-134. Indeed, to the contrary,
the records indicate that Triolo affirmatively denied any injuries since his last

visit. See Pl.’s Ex. 9 at SJIPS_128-29. At trial, Triolo explained that he did not
notify Pardo of the injury to his Achilles because he sees Pardo for his back, not
his foot.27 Neither Triolo nor Pardo could recall if Triolo wore the CAM walker
to any appointments.

27 The Court rejects this explanation as Triolo plainly understood the connection
between his foot and his back given that he reported to the podiatrist that “he feels like he is
walking funny and is now irritating his spinal fusion.” See Def.’s Ex. 32 at JEFAA_03.
In April, Triolo underwent radiofrequency ablations on the right and then
the left side. Over the remainder of 2019, and in 2020 through trial, Triolo

underwent several more procedures with Pardo in an attempt to relieve his
reoccurring pain: a steroid injection at L5 (August 20, 2019), a left-sided
radiofrequency ablation (September 25, 2019), a steroid injection in the left hip
(October 24, 2019), a steroid injection at L4 on the left side (August 7, 2020),

and another left-sided radiofrequency ablation (September 14, 2020). These
procedures provided varying levels of pain relief both in degree and duration.
Notably, although Triolo testified that two of the left-sided radiofrequency
ablations he underwent had no effect on his pain at all, the left-sided

radiofrequency ablation Triolo received just before trial was, in Triolo’s words,
“[p]robably the best procedure yet.” See Tr. Vol. I at 97. Indeed, in the Court’s
observation, Triolo did not appear to be in any discomfort while seated in the
courtroom throughout the trial, including during the lengthy period that he was

on the witness stand.
Pardo opined that Triolo will need forty-five Percocet pills per month and
annual, bilateral radiofrequency ablations at three levels for the remainder of
his life to manage his pain. According to Pardo, because of Triolo’s continued

need for narcotic pain medication, Triolo must continue with monthly office
visits and participate in periodic drug screening. Topp testified that there is “a
high likelihood” given Triolo’s age that he will need another surgery later in life,
either a fusion or a decompressive fusion at another level of his spine. See Tr.
Vol. II at 268-69.

vii. Current Condition
As a result of the accident, Triolo testified that he is never without pain.
He states that he is no longer able to play golf, basketball, engage in weight-

training, or run on the treadmill. However, Triolo does continue to work as a
respiratory therapist and testified that, other than the time off recovering from
surgery, he had not missed a single shift because of the accident. Triolo can
perform the responsibilities of his job without accommodation, although he no

longer helps the nurses with sliding patients into bed. Notably, Triolo testified
that he does not take narcotic pain medicine before work given his job
responsibilities and for fear of losing his license. Instead, Triolo takes Ibuprofen
at work and Percocet in the evenings to help him sleep through the night.

Triolo testified that he gets uncomfortable when sitting for long periods of
time, and that he still sleeps in a recliner “a couple times a month.” See Tr. Vol.
I at 132. He also wakes up extra early every morning to perform a stretching
routine that improves his mobility. Triolo is still able to do household chores,

including mowing the lawn with a push lawnmower, but maintains that
afterwards he is achy and sore. Indeed, the government presented video
surveillance evidence which showed Triolo mowing his lawn with a push
lawnmower. At one point, Triolo rinses off the lawnmower and then lifts it with
one hand to help it dry. He also bends down to move a broken paver. In the
Court’s view, Triolo exhibited no stiffness, soreness, or difficulty moving in the

video.
Triolo’s half-brothers also testified to his condition before and after the
accident. According to his brothers, before the accident Triolo lived a very active
lifestyle, weightlifting, playing sports or riding his motorcycle. Neither brother

ever recalls Triolo complaining about back pain prior to the February 11, 2017
accident. Both brothers testified that Triolo does not work out or play sports
anymore. Brian Schmucker testified that Triolo “barely rides” his motorcycle
anymore, although he was unaware that Triolo had ridden his motorcycle to

Daytona Beach for Bike Week after the accident. Bruce Schmucker testified
that he sees Triolo sleeping in the recliner a lot more now than he used to, and
that Triolo will groan and moan when leaning over to pick something up.
Consistent with Triolo’s testimony, Bruce Schmucker also testified that Triolo

engages in a lot of stretching early in the morning to loosen up. Bruce
Schmucker was aware that Triolo had attended Biktoberfest and Bike Week but
maintained that otherwise Triolo does not ride his motorcycle anymore as it has
stayed in the same position in the garage without moving. Nevertheless, during

his own testimony, Triolo affirmatively stated that he still rides his motorcycle.
II. Conclusions of Law

A. Applicable Law
The evidence is undisputed, and it is not contested, that Rentz is at fault
for the February 11, 2017 accident. Rather, the central issue in this case is
whether, and to what extent, Triolo’s symptoms and conditions were caused by

the accident. “In negligence actions Florida courts follow the more likely than
not standard of causation and require proof that the negligence probably caused
the plaintiff’s injury.” See Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015,
1018 (Fla. 1984). In Gooding, the Florida Supreme Court explained the burden

of proof as follows:
“On the issue of the fact of causation, as on other issues essential
to his cause of action for negligence, the plaintiff, in general, has
the burden of proof. He must introduce evidence which affords a
reasonable basis for the conclusion that it is more likely than not
that the conduct of the defendant was a substantial factor in
bringing about the result. A mere possibility of such causation is
not enough; and when the matter remains one of pure speculation
or conjecture, or the probabilities are at best evenly balanced, it
becomes the duty of the court to direct a verdict for the defendant.”

Id. (quoting Prosser, Law of Torts § 41 (4th Ed. 1971)).
Here, Triolo presents the opinions of his treating physicians on the cause
of his ailments. As the factfinder, the Court “is free to determine the reliability
and credibility of expert opinions and, if conflicting, to weigh them as the finder
sees fit.” See Dep’t of Ag. & Consumer Servs. v. Bogorff, 35 So. 3d 84, 88 (Fla.
4th Dist. Ct. App. 2010); see also Fla. Std. Jury Instr. (Civ.) 601.2b (“You may
accept such [expert] opinion testimony, reject it, or give it the weight you think
it deserves, considering the knowledge, skill, experience, training, or education

of the witness, the reasons given by the witness for the opinion expressed, and
all the other evidence in the case.”). A fact-finder’s decision to reject expert
testimony “must be founded on some reasonable basis in the evidence.” See
Boyles v. A&G Concrete Pools, Inc., 149 So. 3d 39, 48 (Fla. 4th Dist. Ct. App.

2014). Such a basis for rejecting expert testimony can include, for example:
conflicting medical evidence; evidence that impeaches the
credibility or basis for an expert’s opinion; the lack of candor of the
plaintiff in disclosing prior accidents, prior medical treatment, and
prior or subsequent similar injuries; conflicting lay testimony or
evidence that disputes the injury claim; or the plaintiff’s overall
credibility relating to conflicting statements regarding the alleged
injury.

Id.; see also Easkold v. Rhodes, 614 So. 2d 495, 498 (Fla. 1993) (finding jury
could properly reject the expert testimony of plaintiff’s doctors where jury also
heard evidence that plaintiff did not accurately report her previous medical
history to the doctors).
B. Causation
Triolo maintains that he sustained permanent injuries to his lumbar
spine in the accident and contends that because of these injuries he is suffering
from chronic lower back pain which necessitated his back surgery and ongoing
pain management therapies. Because of these injuries, Triolo asserts that he is
no longer able to engage in the same active lifestyle he had before the accident.
As evidence of causation, Triolo presented the opinions of two of his treating
physicians: Pardo and Topp. The government, having failed to engage in

discovery, did not present any expert testimony in opposition.
At trial, the government objected to several portions of Pardo and Topp’s
testimony as “new” opinions that were not previously disclosed. For example,
the government objects to both doctors’ testimony that the MRI showed bony

edema, Topp’s opinion that the degeneration in Triolo’s spine at L5 developed
in the weeks between the accident and the MRI, and Pardo’s opinion that Triolo
had facet joint arthropathy at L5-S1 that was masked by pre-surgery pain.
Upon due consideration of the pre-trial disclosures and the testimony at trial,

the Court finds that exclusion is not warranted here.
Topp and Pardo are non-retained treating physicians, and as such, Triolo
disclosed these witnesses under Rule 26(a)(2)(C) by providing “a summary of the
facts and opinions” to which these witnesses were expected to testify. See Rule

26(a)(2)(C) (emphasis added). Unlike the expert report required under Rule
26(a)(2)(B), Triolo was not obligated to provide “a complete statement of all
opinions the witness will express” nor was he required to disclose “the basis and
reasons” for those opinions. Compare Rule 26(a)(2)(B) (emphasis added) with

Rule 26(a)(2)(C). Indeed, the Court is sensitive to the advisory committee’s note
that “[c]ourts must take care against requiring undue detail, keeping in mind
that these witnesses have not been specially retained and may not be as
responsive to counsel as those who have.” See Rule 26(a)(2)(C) advisory
committee’s note (2010 amend.).

Notably, Triolo’s summary disclosures generally informed the
government that Topp and Pardo would testify to the findings of the imaging
and x-rays of Triolo’s lumbar spine, and would opine that Triolo’s injuries were
caused by the accident and did not pre-exist the accident. The disclosures stated

that Pardo would testify that he diagnosed Triolo “with lumbar facet joint pain
arthropathy,” as well as “lumbar spondylolisthesis,” among other things. Topp’s
disclosures informed the government that he would testify to performing an L5-
S1 posterior lumbar interbody fusion surgery which was “related to the injuries

[Triolo] received from the subject accident.” Thus, while the challenged details
were not specifically mentioned in the disclosures, the testimony of the doctors
did fall generally within the scope of the summaries provided. In the Court’s
view, to exclude the details discussed at trial as the government requests would

risk transforming the “summary” requirement into that of a full expert report.
Moreover, even to the extent these details do constitute “new” facts or
opinions that should have been disclosed, exclusion is not warranted. Under
Rule 37(c)(1), when a “party fails to provide information or identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence . . . at a trial, unless the failure was substantially
justified or is harmless.” “Factors relevant to the determination of whether
exclusion of a witness is warranted include ‘the explanation for the failure to
disclose the witness, the importance of the testimony, and the prejudice to the

opposing party if the witness [is] allowed to testify.’” See Izquierdo v. Certain
Underwriters at Lloyd’s London, No. 20-13772, 2021 WL 3197008, at *4 (11th
Cir. July 29, 2021) (quoting Romero v. Drummond Co., Inc., 552 F.3d 1303, 1321
(11th Cir. 2008)).

Here, the testimony is important to Triolo’s case and there is no indication
that the omission of these details in the pre-trial disclosures was intentional.
Indeed, the Court accepts that Triolo’s counsel believes in good faith that he
provided the level of detail required of a summary disclosure. Most

significantly, any prejudice to the government is entirely self-inflicted. See
Torres v. Wal-Mart Stores East, L.P., __ F.3d __, 2021 WL 3634632, at *18-19
(S.D. Fla. Aug. 17, 2021) (finding deficiencies in disclosure harmless because
“[f]rom the very beginning of this case, then, [defendant] had all it would ever

really need to understand the scope and character of [the treating physician’s]
testimony”). As discussed in the Court’s November 5, 2019 Order (Doc. 42), the
government failed to diligently engage in discovery prior to trial. See Order
(Doc. 42) at 2-4. Despite ample notice that both Topp and Pardo would testify

to causation, the government opted not to depose either witness. Thus, to the
extent the government suffered any surprise or prejudice by the details of the
testimony at trial, the fault remains with the government for making a strategic
decision not to depose these treating physicians during the discovery period. See
Chau v. NCL (Bahamas) Ltd., No. 16-21115-CIV-WILLIAMS/SIMONTON,

2017 WL 3623562, at *6 (S.D. Fla. May 3, 2017) (finding that although the
summaries did not fully comply with Rule 26(a)(2)(C), any prejudice was cured
when witnesses were deposed, and the physicians would be permitted to testify);
see also Jones v. Discount Auto Parts, LLC, No. 6:16-cv-138-Orl-37KRS, 2017

WL 1396477, at *8-11 (M.D. Fla. Apr. 19, 2017) (explaining that defendant took
a “calculated risk” by failing to depose plaintiff’s experts or obtain its own
expert, and that any prejudice suffered was at least, in part, a consequence of
“pursuing exclusion of Plaintiff’s testimony to the exclusion of all other

alternatives”).28
The government also argues that many of Topp and Pardo’s opinions
should be excluded because they were not developed within the course and scope
of treating Triolo.29 However, the Court finds that Pardo and Topp adequately

28 Rule 37(c)(1) provides, as an alternative to exclusion, that the court may “inform the
jury” of a party’s failure to properly disclose a witness. See Rule 37(c)(1)(B). As the finder of
fact, the Court has considered the timing of when these treating physicians first expressed
certain aspects of their opinions in determining the proper weight to give their testimony.
29 As addressed extensively pre-trial, both parties have proceeded under the view that
as non-retained treating physicians, Topp and Pardo may only testify to opinions formed in
the course of Triolo’s treatment. See Plaintiff’s Trial Brief at 17; United States of America’s
Trial Brief (Doc. 72) at 8; see also Order (Doc. 22); Order (Doc. 44). However, the Court notes
that there is some disagreement in the law as to whether, following the 2010 amendments to
Rule 26, the testimony of a non-retained treating physician should be limited in this way.
Compare Kondragunta v. Ace Doran Hauling & Rigging Co., No. 1:11-cv-01094-JEC, 2013 WL
1189493, at *9-13 (N.D. Ga. Mar. 21, 2013) (“I]f a physician's opinion regarding causation or
testified that they developed their opinions regarding the cause of Triolo’s
injuries in the course of treating him and that determining the cause of his

injuries was necessary to their treatment in order to rule out other potential
causes. Indeed, both doctors testified that it is a routine and necessary part of
their practice to determine and consider the cause of a patient’s injury. As such,
the Court will not exclude Topp and Pardo’s causation testimony on that basis

either.30

any other matter was formed and based on observations made during the course of treatment,
then no Subsection B report is required . . . . If, however, the physician's opinion was based on
facts gathered outside the course of treatment, or if the physician’s testimony will involve the
use of hypotheticals, then a full subsection B report will be required.” (emphasis added)
(internal citations omitted)) with Torres, 2021 WL 3634632, at *10-16 (discussing the issue at
length and concluding that plaintiff’s treating physician “can offer expert opinions on the
question of causation, regardless of when his opinions were formed” because “there’s no
indication that [plaintiff] (or his legal team) retained [the treating physician] to provide
testimony in this case”). Regardless, the Court need not resolve the issue as the Court is
satisfied that all of Topp and Pardo’s opinions were formed within the scope of Triolo’s
treatment.
30 Prior to trial, the government also moved to exclude Topp and Pardo’s opinions as
unreliable under Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993). See Defendant’s
Amended Daubert Motion to Exclude Opinions of Plaintiff’s Non-Retained Expert Witnesses
(Doc. 34; Motion to Exclude). The Court denied the Motion to Exclude without prejudice to
renewal at trial. See Order (Doc. 44), entered January 7, 2020. The parties disagree on
whether the causation opinions of these treating physicians, formed in the scope of treatment,
are subject to the Daubert analysis. See Wilson v. Taser Int’l, Inc., 303 F. App’x 708, 712-13
(11th Cir. 2008) (finding treating physician’s causation opinion subject to Daubert where
physician did not need to know cause of injury in order to treat him); Chapman v. Procter &
Gamble Distributing, LLC, 766 F.3d 1296, 1316 n.23 (11th Cir. 2014) (noting that a treating
doctor is providing expert testimony if it consists of opinions based on specialized knowledge
regardless of whether opinions formed prior to litigation); see also Jones, 2017 WL 1396477,
at *9 n.12; Chau, 2017 WL 3623562, at *7.
Notably, the government did not raise a Daubert objection at trial. Nevertheless, to the
extent the government continues to maintain its Daubert challenge, see Government Proposal
at 72-73; Pretrial Statement at 15, and assuming arguendo that Daubert applies, the Court
finds that Topp and Pardo’s opinions are sufficiently reliable as to be admissible in this case.
i. Pardo
Pardo explained that determining the cause of a patient’s symptoms is

important to his practice because it allows him to rule out other possible sources
of pain so he can focus his treatment appropriately. According to Pardo, the
forces from the motor vehicle collision on February 11, 2017, caused a fracture
to Triolo’s pars interarticularis at L5. This fracture allowed the vertebra to slip

forward at L5-S1, compressing Triolo’s nerves and causing pain in his back and
radiating down his right leg. Pardo stated that he observed swelling, i.e., bony
edema, at L5 in the MRI, an indication of severe trauma. He also testified that
it was unlikely someone with a vertebra slipping forward in that manner would

have no symptoms. Pardo further opined that the accident caused permanent
bilateral injuries to Triolo’s facet joints at L3-4, L4-5, and L5-S1, and these

See Wilson, 303 F. App’x at 714 (explaining that a doctor “usually may primarily base his
opinion as to the cause of a plaintiff’s injuries on his history where the plaintiff ‘has sustained
a common injury in a way that it commonly occurs . . . .’” (quoting Bowers v. Norfolk S. Corp.,
537 F. Supp. 2d 1343, 1353-54 (M.D. Ga. 2007))); see also Chau, 2017 WL 3623562, at *9-12;
Brown v. NCL (Bahamas) Ltd., 190 F. Supp. 3d 1136, 1143-44 (S.D. Fla. June 6, 2016). Both
doctors testified that the injuries causing Triolo’s lumbar pain and radiculopathies are due to
the hyperextension of his lumbar spine as can occur in rear-end collisions. The doctors
performed a physical examination, took a medical history, reviewed the MRI imaging, and
engaged in a differential diagnosis analysis to rule out other causes. Based on the foregoing,
the doctors concluded that Triolo’s injuries were the result of a new, acute trauma, most likely
the rear-end collision on February 11, 2017. Significantly, this is not a case where there is
evidence of pre-existing back pain, prior back injuries, or other, recent accidents that must be
accounted for. Thus, the Court is satisfied that even if not strictly necessary for treatment,
the doctors’ causation opinions are sufficiently reliable to be admissible in this case. In the
Court’s view, the government’s arguments, discussed below, go to the weight that should be
given to these opinions, not their admissibility.
injuries were later aggravated by the lumbar fusion surgery. Pardo explained
that the pain from the injury to the facet joints was initially masked by the pain

stemming from the nerve root compression.
Pardo determined that the accident was the cause of these injuries based
on Triolo’s report of his medical history, Pardo’s physical examination of Triolo,
Pardo’s review of the April 4, 2017 MRI, Triolo’s need for treatment, and Triolo’s

responses to Pardo’s treatment and the surgery. Pardo testified that Triolo’s
symptoms were consistent with the objective findings on the MRI. He also
explained that the injuries to Triolo’s spine are the type of injuries which are
caused by hyperextension of the joint, as can occur in a rear-end motor vehicle

collision. Pardo observed that Triolo likely had pre-existing disc desiccation at
L5-S1 which was exacerbated by the motor vehicle collision but maintained that
the desiccation was not the cause of Triolo’s symptoms.31

ii. Topp
Topp also testified that Triolo’s fracture was caused by a hyperextension
of his back that occurred in the motor vehicle accident. According to Topp, while
the initial fracture may have caused some pain, over time, the fracture allowed

the vertebra to slip, and the space around the nerves got smaller allowing them

31 As addressed at trial, it is undisputed that Triolo is not claiming the aggravation of
a preexisting injury in this case.
to become pinched which caused the ongoing pain. In addition, Topp testified
that Triolo developed sacroiliac joint dysfunction either due to an injury at the

time of the accident or as a result of the lumbar fusion surgery.
Topp explained that determining the cause of a patient’s injury assists
him in treating that injury because it allows him to eliminate or reinforce
aspects of the differential diagnosis to reach a final diagnosis and formulate a

treatment plan. As such, Topp performed a differential diagnosis analysis on
Triolo, as he does with every patient. In doing so, Topp considered Triolo’s
account of the motor vehicle accident, his subjective reports of pain, his medical
history, the MRI imaging, and Topp’s physical examination of Triolo. Topp

testified that in conducting this analysis, he begins with “a whole multitude of
potential problems that could be causing his back pain,” including inflammatory
conditions, infections, and tumors. Topp explained that his differential
diagnosis of Triolo ruled out tumor, infection, or a degenerative condition as the

cause of Triolo’s pain, leaving an acute injury as the diagnosis.
In support, Topp testified that his review of the MRI indicated to him that
Triolo’s nerves were severely pinched such that he could not “have been living
like this for very long.” See Tr. Vol. II at 293. Likewise, Topp opined that Triolo

would “certainly” have had “some pain in his back” had he sustained the fracture
at L5 prior to the motor vehicle collision. Id. at 223. Topp also testified that in
reviewing the MRI he noted the presence of edema in the bone which was
indicative of an injury occurring at the time of the accident. Topp conceded that
Triolo’s spine showed signs of degenerative processes, e.g., disc desiccation and

disc space narrowing, but maintained that this degeneration occurred in the
seven weeks between the accident that fractured the pars, and the MRI. Thus,
in Topp’s opinion, it was “post-traumatic” degeneration.

iii. Findings
The government raises several arguments attacking the credibility of the
doctors and the reliability of their opinions. Among other things, the
government notes that the doctors treated Triolo under letters of protection and

thus have an interest in the outcome of this ligation. The government points to
aspects of Triolo’s personal and medical history that he did not disclose to the
doctors, as well as evidence that Triolo’s pain may not have been as severe as
he was reporting. And the government expresses ample skepticism of Topp’s

opinion on the timeframe over which Triolo’s spinal conditions developed.
Nevertheless, on this record, absent any contrary expert testimony, the Court
finds that Triolo satisfied his burden of demonstrating that it is more likely than
not that the injuries to his lumbar spine were sustained in the February 11,

2017 accident.
Although Triolo lacked credibility in many regards, the Court is
nonetheless convinced that he was not experiencing back pain before this
accident. The government fails to identify a single medical record indicating
that Triolo had previously complained of back pain. Likewise, the only
witnesses the Court heard on this point, Triolo’s brothers, testified that they

had never known Triolo to have back pain prior to the accident. Indeed, Triolo’s
brothers maintained that before the accident Triolo was fit and physically
active. Although the government speculates about Triolo’s failure to provide
any medical records from his time living in New York, it is nevertheless notable

that Triolo moved to Florida in March of 2012, almost five years before the
accident, and had not pursued treatment for his back in that time. In contrast,
after he obtained benefits through work in 2015, Triolo did seek treatment for
his chronic migraines and sleep apnea. Given that Triolo was working long

hours at a physically active job without the need for treatment of his back, the
Court is persuaded that Triolo was not experiencing any significant back pain
prior to the accident.
Moreover, according to Topp and Pardo, the injuries reflected in the MRI

are consistent with hyperextension injuries that occur in rear end collisions.
Both Topp and Pardo also noted the presence of swelling indicative of a
traumatic injury. Although the MRI report does identify degenerative changes
in Triolo’s spine, Topp explained that the degenerative findings in Triolo’s spine

are not inconsistent with an acute injury. Significantly, the government did not
present any expert testimony to support its theory that the presence of
degenerative findings in Triolo’s spine makes it more likely than not that the
pars fracture and slippage were preexisting. Likewise, the government failed
to present any actual evidence to rebut Topp’s testimony on the timeframes in

which degeneration can occur following trauma.32 While the Court in its own
experience bears some reservations about Topp’s opinion on this point, the Court
declines to reject this testimony absent the presentation of expert testimony to
the contrary.33

The government also attacks the reliability of Topp and Pardo’s opinions
as they are largely based on information obtained from Triolo. However, the
government fails to show that there were any material inaccuracies in the
information Triolo provided to his doctors. There is no evidence that Triolo told

Topp or Pardo that his seat back had broken or that the USPS truck was
traveling 30 miles per hour, factual contentions the Court has rejected. While
Triolo did not disclose his work history or car accidents from decades earlier,

32 The Court notes the discrepancy between Pardo’s testimony that the disc desiccation
at L5-S1 was likely preexisting but unrelated to Triolo’s pain, and Topp’s testimony that the
desiccation developed in the weeks following the fracture. Despite this discrepancy, the
testimony of the two doctors was consistent that the fracture likely occurred in the accident
followed by the slippage that caused the nerve impingement given the presence of swelling and
Triolo’s lack of pain prior to the accident. The Court does not give substantial weight to the
government’s contention that the fracture must have been preexisting given the presence of
disc desiccation because the government did not present any expert testimony to support its
theory.
33 The government also points to the note in Toumbis’s records that Triolo’s injury was
of a chronic nature, but the Court did not hear from Toumbis at trial and thus had no ability
to explore the reasons for this opinion or assess his credibility. As such, this isolated note is
insufficient to rebut the testimony of Topp and Pardo.
there is no reason to believe that this information would have impacted Topp
and Pardo’s opinions given the length of time that had passed and Triolo’s lack

of any need for treatment in the years preceding the accident. Indeed, Pardo
testified that a motor vehicle collision from more than twenty years prior
without injuries would not be pertinent to his diagnosis.34 Likewise, the Court
is not convinced that Triolo’s failure to disclose various other aspects of his

medical history such as his testosterone treatments, sleep apnea, broken hand,
or broken foot warrant rejection of Pardo and Topp’s causation opinions. This
is especially true given the lack of any testimony that such information would
have been relevant in assessing the cause of Triolo’s back pain.

In sum, although the Court bears reservations about the value of Topp
and Pardo’s causation testimony, on the current record with no countervailing
explanation for Triolo’s pain following the accident, the Court finds, based on a
preponderance of the evidence, that the accident caused permanent injuries to

Triolo’s spine. Even discounting the weight given to Topp and Pardo’s
testimony, absent any other evidence, the Court is satisfied that Triolo has met
his burden of proof. Accordingly, the Court finds that Triolo sustained the

34 Notably, the government did not inquire of either doctor whether Triolo’s work
history or prior accidents would impact their opinion on the cause of his injuries. Nor did the
government present any expert of its own to testify that these events are a more likely cause
of Triolo’s back pain.
fracture to his pars interarticularis as a result of the accident, leading to the
nerve impingement that necessitated the surgery. The Court also finds that

Triolo sustained injuries to his facet joints that were exacerbated by the lumbar
surgery and are the cause of his ongoing pain, as well as an injury to his
sacroiliac joint. And, as previously noted, it is undisputed that Triolo sustained
temporary injuries to his neck.

C. Damages
For the reasons discussed, the Court finds that Triolo sustained
permanent injuries to his lumbar spine as a result of the February 11, 2017

accident. In addition, it is undisputed that Triolo sustained temporary injuries
to his neck.35 To the extent there was an attempt to attribute Triolo’s pain to
preexisting degeneration in his neck and back, given the absence of any expert
testimony in support, the Court rejects this contention. As such, the Court

accepts that Triolo is entitled to his past medical damages.36 In addition, Triolo

35 Triolo did not require treatment for his neck injuries separate from the treatment he
received for his back treatment. Thus, a separate discussion of those damages is not necessary.
36 Triolo tabulates his total past medical bills, after reductions and set offs, as $312,113.
See Triolo Proposal at 22. However, the Court has reviewed the records and finds that the
past medical bills total $307,504.86. The discrepancy is largely because Triolo vastly over
states his out-of-pocket costs from Walgreens. The records provided indicate that Triolo only
incurred $895.74 in prescription drug costs at Walgreens, rather than the $4,895.40 claimed.
See Pl.’s Exs. 14, 32.
The government argues that Triolo failed to mitigate his damages because he did not
submit his medical bills to his medical insurance. However, the government fails to provide
any evidence of whether Triolo’s insurer would have covered these treatments, or what it would
have paid. Without more information, the Court is not convinced that Triolo’s decision not to
is entitled to his lost wages following the back surgery totaling $4,122.18. See
Fla. Std. Jury Instr. (Civil) 501.3(b) (allowing the recovery of “[a]ny earnings . .

. lost in the past”).
With regard to his future medical damages, Triolo presented the
testimony of life care expert Gil Spruance. Based on Pardo and Topp’s opinions
regarding Triolo’s future medical care, Spruance opined on the future costs of:

Triolo’s prescription pain medication, monthly office visits, drug screening,
annual x-rays to monitor his lumbar spine, and annual bilateral, 3-level
radiofrequency ablations. He also opined on the cost of a future lumbar fusion
extension surgery. Spruance testified that as of the date of trial, Triolo had a

remaining life expectance of 34.3 years.
Upon review, the Court rejects any award for drug screening or x-ray
monitoring of his lumbar spine as Triolo presented no evidence that he has ever

bill his insurance constitutes a failure to mitigate under the circumstances of this case.
Moreover, with one small exception, the government does not specifically point to any bills or
charges that it contends are excessive. The government does identify one charge in Pardo’s
records that appears to reflect a discounted rate paid by PIP, but this evidence, standing alone,
does not persuade the Court that the charges were unreasonable. See Hillsborough Cnty.
Hosp. Auth. v. Fernandez, 664 So. 2d 1071, 1072 (Fla. 2d Dist. Ct. App. 1995) (holding that
evidence of “contractual discounts, standing alone, is insufficient to prove that [hospital’s]
charges were unreasonable”); see also Lawton-Davis v. State Farm Mut. Auto. Ins. Co., No.
6:14-cv-1157-Orl-37DAB, 2016 WL 1383015, at *2-3 (M.D. Fla. Apr. 7, 2016) (discussing a
variety of factors that are relevant to the reasonableness of a medical provider’s charges,
including contractual discounts and the plaintiff’s lack of control as to the amount of the
charges, but cautioning that no single factor “can be solely relied on as the measure of
reasonableness”).
participated in drug screening during the three years that he had been treating
with Pardo prior to trial. Likewise, at the time of trial, Triolo had not returned

to Topp for a follow up appointment since September of 2018, and had not
obtained any imaging of his lumbar spine in over a year. Thus, the Court is not
convinced that Triolo will obtain routine x-ray screening going forward.37 The
Court accepts that Triolo will continue to see Pardo for pain management to

include prescription medication and left-sided radiofrequency ablations and will
therefore award the mid-range cost of that medical care. The Court does not
accept that Triolo will continue to receive right-sided radiofrequency ablations.
Significantly, the Court did not find Triolo’s testimony regarding his ongoing

pain to be entirely credible. Triolo’s travels, work history, and continued
motorcycle use, combined with the surveillance footage and his general lack of
complete candor, convince the Court that Triolo’s pain is more manageable than
he describes. As such, and given that at the time of trial Triolo had only received

one right-sided ablation, which was administered shortly after his Achilles
injury, the Court finds it unlikely that he will need right-sided ablations in the
future. Likewise, to the extent Triolo seeks damages for the cost of a future back

37 Notably, although Spruance testified that Topp recommended annual x-ray
screenings, the Court heard no testimony from Topp about the need for annual x-ray
monitoring of Triolo’s lumbar spine.
surgery, the Court is not persuaded that Triolo will, more likely than not, need
such a surgery in his lifetime. Although Topp testified that there was a “high

likelihood” Triolo would need such surgery, the Court found Topp’s testimony
on this point to be too generalized and conclusory to support such a finding.
Thus, the Court calculates Triolo’s future medical damages as $285,883.64.38
Next, the Court finds it necessary to discount Triolo’s medical damages

due to a failure to mitigate. Specifically, the Court finds that Triolo failed to
mitigate his damages by declining to participate in the prescribed physical
therapy following surgery. Both Topp and Pardo testified to the importance of
physical therapy following surgery and the records from Select Physical

Therapy indicate that Triolo would likely have benefited from skilled
rehabilitative therapy. In addition, the Court finds that Triolo likely
exacerbated his back injury when he injured his Achilles in February 2019. The
Court is convinced that Triolo’s failure to participate in rehabilitative therapy

and subsequent aggravation of his back injury have likely contributed to his
ongoing need for pain management therapies both before trial and going
forward. As such, the Court will discount Triolo’s past and future medical

38 The math is as follows: $1,680 (Office visits) + $1,360.80 (medication) + $5,294 (left-
sided RFAs) = $8,334.80 annually. The annual amount over 34.3 years of life expectancy is
$285,883.64.
damages by 10%. Accordingly, the Court awards $276,754.37 in past medical
damages, and $257,295.28 in future medical damages.

Last, having determined that Triolo sustained a permanent injury,
Florida law permits an award of damages for pain and suffering experienced in
the past and to be experienced in the future. See Fla. Std. Jury Instr. (Civil)
501.3(d). “There is no exact standard for measuring such damage. The amount

should be fair and just in the light of the evidence.” Id. On this element, the
Court finds that although Triolo does experience significant pain at times,
overall his pain is less severe than described. Triolo is able to continue his full
employment in the career he loves, he still rides his motorcycle, maintains his

home and yard, and enjoys his vacations. Nevertheless, the Court does find it
significant that Triolo underwent a painful surgery and will have a “bad back”
for the remainder of his life. See Tr. Vol. II at 271. The Court accepts that
Triolo sometimes has difficulty sleeping due to back pain, wakes up stiff and

sore in the morning, has had to curtail his recreational activities, and
experiences some discomfort throughout the day. Based on these findings, the
Court will award $45,000 in past pain and suffering and $100,000 in future pain
and suffering.
Thus, the Court finds that Triolo is entitled to a total damages award as
follows:
Past Medical Care: $ 276,754.37
Lost Wages: $ 4,122.18
Future Medical Care: $ 257,295.28
Past Pain & Suffering: $ 45,000.00
Future Pain & Suffering: $ 100,000.00
Total: $ 683,171.83
Accordingly, it is
ORDERED:
The Clerk of the Court is directed to enter JUDGMENT in favor of
Richard A. Triolo in the amount of $683,171.83. The Clerk is further directed
to terminate all pending motions and deadlines as moot and close the file.
DONE AND ORDERED at Jacksonville, Florida this 22nd day of March,
2022.

MARCIA MORALES HOWARD
United States District Judge

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Copies to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642127. Public record. Not legal advice.