Young v. Panera, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

FRED YOUNG and JEFF FIRMAN,

Plaintiffs,

v. Case No. 8:22-cv-2894-MSS-CPT

PANERA, LLC,

Defendant.

_____________________________________/

ORDER

THIS CAUSE comes before the Court for consideration of Defendant Panera,

LLC’s Renewed Motion for Judgment as a Matter of Law, Alternative Motion for

New Trial or Motion for Remittitur, (Dkt. 143), and Plaintiffs’ response in opposition.

(Dkt. 149) Upon consideration of all relevant filings, case law, and being otherwise

fully advised, the Court DENIES Defendant’s Motion.

I. BACKGROUND

On November 21, 2022, Fred Young and Jeff Firman (“Plaintiffs”) initiated this

action against Panera, LLC (“Defendant” or “Panera”) in the Circuit Court for the

Twelfth Judicial Circuit in and for Sarasota County, Florida. (Dkt. 1-1) On December

21, 2022, Panera removed the case to this Court. (Dkt. 1) Plaintiffs sought damages

for injuries sustained in an automobile collision that occurred on October 3, 2019,

when a vehicle driven by Panera’s former employee rear-ended a vehicle driven by

Plaintiff Young and in which Plaintiff Firman was a passenger. (Dkt. 45) In the

operative complaint, Plaintiffs alleged claims of negligence against Panera on a theory

of respondeat superior. (Id.)

From August 12 to August 22, 2024, the Court held a seven-day trial on

Plaintiffs’ claims against Panera. (Dkts. 113, 115, 116, 117, 120, 123, 128) At the close

of Plaintiffs’ evidence, Panera moved for judgment as a matter of law on four issues.

(Dkt. 120; Trial Tr. Day 5 at 257–58) As to both Plaintiffs’ claims, Defendant argued

no reasonable jury could conclude that the motor vehicle accident caused Plaintiffs’

injuries based on the evidence introduced at trial. (Trial Tr. Day 5 at 258:9-15)

Defendant also argued the evidence was insufficient for a reasonable jury to find that

Plaintiffs’ medical expenses were reasonable and necessary. (Id.) Defendant argued it

was entitled to judgment as a matter of law on the issue of whether Plaintiff Firman’s

injuries were permanent. (Id.) Finally, Defendant argued Plaintiffs produced

insufficient evidence for a reasonable jury to determine Firman’s future medical

expenses. (Id.) The Court denied Panera’s motion. (Id. at 308–09; Trial Tr. Day 6 at

114–15; 287–89)

On August 22, 2024, the jury returned its verdict in Plaintiffs’ favor. (Dkts. 128,

130, 131) Specifically, the jury found Panera was negligent, that Panera’s negligence

was the legal cause of damage to Plaintiffs, that no negligence on the part of Plaintiff

Young was a legal cause of damage to either Plaintiff, and that both Plaintiffs sustained

a permanent injury. (Dkts. 130, 131) The jury awarded Plaintiff Young $2,780,665.34

in damages, which consisted of past and future medical expenses of $757,165.34 and

past and future non-economic damages of $2,023,500.00. (Dkt. 130) The jury awarded

Plaintiff Firman $525,806.24 in damages, which consisted of past and future medical

expenses of $121,146.24 and past and future non-economic damages of $404,660.00.

(Dkt. 131) The Court reduced the final judgment to account for insurance and medical

payments paid to Plaintiffs by State Farm Insurance Company. (Dkt. 137) The

amended final judgment reflects an award of $2,765,665.34 to Plaintiff Young and an

award of $515,806.24 to Plaintiff Firman. (Dkt. 138)

Panera filed its Renewed Motion for Judgment as a Matter of Law on

September 27, 2024. (Dkt. 143) In the Renewed Motion, Panera argues Plaintiffs did

not present competent, substantial evidence of the reasonableness of their past medical

expenses. (Id. at 3) Thus, Panera contends that, under Rule 50 of the Federal Rules of

Civil Procedure, it is entitled to judgment as a matter of law that Plaintiffs failed to

establish their medical bills were reasonable. (Id. at 4) Panera requests the Court

amend the Amended Final Judgment to reduce Plaintiff Young’s award by

$624,165.34 and Plaintiff Firman’s award by $64,646.24. Additionally, Panera

requests a new trial and gives three reasons for the request. First, Panera believes the

Court erred in excluding the testimony of Panera’s medical billing expert, Keyona

White. (Id. at 5) Second, Panera believes it was denied a fair trial when the Court

admitted Plaintiffs’ medical bills as evidence of past medical expenses. (Id. at 20)

Third, Panera argues it was denied a fair trial because Plaintiffs’ counsel made

improper arguments during his rebuttal closing argument. (Id. at 21–23) Finally,

Panera’s motion contains a request for remittitur. (Id. at 23–25)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 50(a)(1) provides:

If a party has been fully heard on an issue during a jury trial

and the court finds that a reasonable jury would not have a

legally sufficient evidentiary basis to find for the party on

that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law

against the party on a claim or defense that,

under the controlling law, can be maintained

or defeated only with a favorable finding on

that issue.

Fed. R. Civ. P. 50(a)(1). In considering a motion for judgment as a matter of law, all

reasonable inferences must be drawn in favor of the nonmoving party. Gowski v.

Peake, 682 F.3d 1299, 1310–11 (11th Cir. 2012). The Court is not permitted to

substitute its own judgment about “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts,” as those are the

functions of the jury. Id. (quoting Reeves v. Sanderson Plumbing Prod., 530 U.S. 133,

150 (2000)). Therefore, “judgment as a matter of law is appropriate only if the evidence

is so overwhelmingly in favor of the moving party that a reasonable jury could not

arrive at a contrary verdict.” Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241,

1246 (11th Cir. 2001). “If there is substantial conflict in the evidence, such that

reasonable and fair-minded persons in the exercise of impartial judgment might reach

different conclusions, the motion must be denied.” Christopher v. Florida, 449 F.3d

1360, 1364 (11th Cir. 2006) (internal citations and quotation marks omitted).

Rule 50(b) provides, “No later than 28 days after the entry of judgment—or if

the motion addresses a jury issue not decided by a verdict, no later than 28 days after

the jury was discharged—the movant may file a renewed motion for judgment as a

matter of law and may include an alternative or joint request for a new trial under Rule

59.” Fed. R. Civ. P. 50(b). “For a court to be obligated to consider a post-trial motion

for judgment as a matter of law, the moving party must have made a motion for such

a judgment under Rule 50(a) at the close of all the evidence.” Aerospace Marketing,

Inc. v. Ballistic Recovery Systems, Inc., No. 04-CV-242, 2005 WL 2290252, at *1

(M.D. Fla. Sept. 19, 2005) (citing Blasland, Bouck & Lee, Inc. v. City of North Miami,

283 F.3d 1286, 1300 (11th Cir. 2002)). Additionally, “[b]ecause the Rule 50(b) motion

is only a renewal of the preverdict motion, it can be granted only on grounds advanced

in the preverdict motion.” Connelly v. Metro. Atlanta Rapid Transit Auth., 764 F.3d

1358, 1363–64 (11th Cir. 2014). “The standard for granting a renewed motion for

judgment as a matter of law under Rule 50(b) is precisely the same as the standard for

granting the presubmission motion under 50(a).” McGinnis v. Am. Home Mortg.

Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir. 2016) (quoting Chaney v. City of

Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007)) (punctuation omitted).

Pursuant to Rule 59(a), a court may grant a new trial “for any reason for which

a new trial has heretofore been granted in an action at law in federal court.” Fed. R.

Civ. P. 59(a)(1)(A). “Recognized grounds for a new trial include: the verdict was

against the clear weight of the evidence, the damages were excessive, there were

substantial errors in admission or rejection of evidence or instructions to the jury, or

the trial was otherwise not fair to the moving party.” See Cornish ex rel. St. Paul Fire

& Marine Ins. Co. v. Renaissance Hotel Operating Co., No. 06-CV-1722, 2008 WL

1743861, at *1 (M.D. Fla. 2008) (citing Steger v. Gen. Elec. Co., 318 F.3d 1066, 1081

(11th Cir. 2003)). “Because it is critical that a judge does not merely substitute his [or

her] judgment for that of the jury, new trials should not be granted on evidentiary

grounds unless, at a minimum, the verdict is against the great—not merely the

greater—weight of the evidence.” Lipphardt v. Durango Steakhouse of Brandon, Inc.,

267 F.3d 1183, 1186 (11th Cir. 2001) (internal quotation omitted).

III. DISCUSSION

Panera requests a judgment as a matter of law that Plaintiffs failed to establish

their medical expenses were reasonable. Additionally, Panera requests a new trial

because Panera contends the Court erred in excluding the testimony of Panera’s

medical billing expert. Panera also argues a new trial should be granted because the

Court should not have admitted Plaintiffs’ medical bills as evidence of past medical

expenses. Furthermore, Panera argues it was denied a fair trial due to Plaintiffs’

counsel’s alleged improper arguments during his rebuttal closing argument. Finally,

Panera requests remittitur.

Relevant to several of Plaintiffs’ arguments is what Florida law requires a

personal injury plaintiff to prove to establish the reasonableness of his or her medical

expenses. In Florida, “a plaintiff may recover the ‘reasonable value’ of his medical

expenses resulting from a defendant’s negligence.” Cooperative Leasing, Inc. v.

Johnson, 872 So. 2d 956, 958 (Fla. 2d DCA 2004). Thus, in a personal injury lawsuit,

the plaintiff “has the burden to prove the reasonableness and necessity of medical

expenses.” Albertson’s, Inc. v. Brady, 475 So. 2d 986, 988 (Fla. 2d DCA 1985). “The

plaintiff may achieve this through expert witness testimony, his or her own lay

testimony, or a combination of both.” Roman v. Sos, 393 So. 3d 1263, 1267 (Fla. 2d

DCA 2024) (citing Walerowicz v. Armand-Hosang, 248 So. 3d 140, 145 (Fla. 4th

DCA 2018)). To establish a prima facie claim for the recovery of past medical expenses,

a plaintiff “must establish that he incurred medical expenses, that the incurrence of

these medical expenses was necessary, and that the particular medical expenses

claimed were reasonably related to injuries related to the subject accident.” Id.

Although Florida requires “something more” than evidence of the amount of a

medical bill to prove reasonableness, Albertson’s, 275 So. 2d at 988, the “something

more” is “not evidence that justifie[s] the amount expended but rather evidence that

tie[s] the incurrence of the expense to the subject accident.” Roman, 393 So. 3d at

1268. In Roman, the defendant argued that the plaintiff “did not fully establish the

reasonableness of the medical expenses because he failed to provide specific evidence

of the reasonableness of the dollar amounts charged by the various medical providers.”

Id. at 1267. The Florida Second District Court of Appeal rejected this argument. Id. at

1270. Testimony from the plaintiff and his treating physicians “along with [a] medical

bill summary established that [the plaintiff] incurred damages he was responsible to

repay and that the expenses were for necessary treatment for injuries reasonably

related to the instant accident.” Id. Accordingly, the district court concluded the

plaintiff presented prima facie evidence of the damages element of his negligence claim.

Id.

Likewise, in Walerowicz, the Florida Fourth District Court of Appeal

concluded that the plaintiff’s testimony, the testimony of one of her treating doctors,

and the introduction of her medical bills linked the medical treatments she received to

the injury resulting from the defendant’s negligence. 248 So. 3d at 144–45. This

evidence was sufficient to establish the reasonableness and necessity of the medical

expenses. Id. at 145. Thus, the evidence was sufficient for the plaintiff to survive the

defendant’s motion for a directed verdict and post-trial motions for a new trial and for

judgment as a matter of law. Id.

Panera contends that Plaintiffs may only recover damages for past medical

expenses if those expenses are reasonable in amount. However, the Plaintiffs’ burden

to prove “‘the reasonableness and necessity of the medical bills’” does not require

“proof of the reasonableness of the dollar amount charged.” Roman, 393 So. 3d at 1267

(quoting Albertson’s, 475 So. 2d at 988) (emphasis in original).

In its opinion, the Walerowicz court quoted the following from a decision in a

criminal case: “The patient’s obligation is not to pay whatever the provider demands,

but only a reasonable amount.” A.J. v. State, 677 So. 2d 935, 937 (Fla. 4th DCA 1996).

Panera quotes this dictum in support of its position, and when quoted in the context of

a personal injury lawsuit, the statement seems to require a plaintiff to justify the

amounts of his medical bills. In A.J. v. State, a criminal case, the appellant-defendant

pled guilty to aggravated battery. Id. at 936. The battery caused the victim to seek

medical treatment at a hospital, the cost of which determined the amount of restitution

the court would require the appellant to pay. Id. At the restitution hearing, the

appellant disputed the admissibility of the victim’s hospital bills. Id. On appeal, the

district court explained, “[I]n this case the medical bills were non hearsay because they

constituted part of a contract that created a debt for a specific amount.” Id. at 937. The

district court continued:

Liability for a medical expense usually arises because of a

contract implied in fact—services are rendered with the

expectation that the patient will pay a reasonable amount in

return. Nursing Care Services, Inc. v. Dobos, 380 So.2d

516, 518 (Fla. 4th DCA 1980); Symon v. J. Rolfe Davis,

Inc., 245 So.2d 278 (Fla. 4th DCA), cert. denied, 249 So.2d

36 (Fla.1971); 3 Corbin on Contracts §§ 562, 567 (1960).

Fees are not typically discussed at the time of treatment. The

patient's obligation is not to pay whatever the provider demands,

but only a reasonable amount. A medical bill constitutes the

provider's opinion of a reasonable charge for the services

and an offer to settle for that amount. The patient is not

legally bound by the provider's estimate; the patient may

contest reasonableness by counter-offering to pay a lower

amount. The patient's express or implied acceptance of the

provider's estimate gives rise to an enforceable contract to

pay the amount of the bill.

Id. (emphasis added). This analysis assisted the Fourth District Court of Appeal in

determining whether the trial court properly admitted certain evidence in the

restitution hearing. The context indicates that the court did not intend to create a rule

for personal injury plaintiffs seeking to recover damages in the amount of past medical

expenses. Moreover, when read in the context of the court’s analysis, the statement

does not support the proposition for which Panera cites it—that as a matter of law, a

plaintiff cannot recover the amount of a medical bill unless the amount is reasonable.

Instead, the A.J. v. State court merely noted that the amounts of medical bills are

commonly subject to negotiation and that the “patient's express or implied acceptance

of the provider’s estimate gives rise to an enforceable contract to pay the amount of

the bill.” Id.

This statement from A.J. v. State was also quoted by the Fourth District Court

of Appeal in Columbia Hospital (Palm Beaches) Ltd. Partnerhsip v. Hasson, 33 So.

3d 148, 150 (Fla. 4th DCA 2010). Likewise, this case does not discuss a personal injury

plaintiff’s burden to prove that his or her medical expenses were reasonable. Instead,

the court in Columbia Hospital affirmed the trial court’s denial of a non-party

hospital’s request for a protective order in a motor vehicle negligence case. Id. at 149.

The defendants in the case “sought discovery from the hospital concerning [the]

particular procedure [performed on the plaintiff], including the amount the hospital

has charged patients with and without insurance, those with letters of protection, and

differences in billing for litigation patients versus non-litigation patients.” Id. The

district court found that the trial court properly denied the hospital’s request for a

protective order because the defendants showed they needed the subpoenaed

information “to dispute, as unreasonable, the amount of medical expenses that the

plaintiff will seek to recover from them, if the hospital charges non-litigation patients

a lower fee for the same medical services.” Id. at 150 (citing A.J., 677 So. 2d at 937

(“The patient's obligation is not to pay whatever the provider demands, but only a

reasonable amount.”)). Courts have cited this discussion in Columbia Hospital to

support decisions to permit discovery of a medical provider’s billing practices. See,

e.g., Gray v. USAA Cas. Ins. Co., No. 21-cv-728, 2023 WL 3043642, at *2 (M.D. Fla.

Apr. 21, 2023); Aglogalou v. Dawson, No. 20-cv-2024, 2022 WL 1913299, at *3 (M.D.

Fla. Apr. 15, 2022); Gulfcoast Surgery Ctr., Inc. v. Fisher, 107 So. 3d 493, 496 (Fla.

2d DCA 2013).

The foregoing case law does not require a plaintiff in a personal injury lawsuit

to prove that the amount his provider charged him for medical treatment was

reasonable according to an ostensibly objective standard, such as average Medicare

rates. Here, Plaintiffs could satisfy their burden to show that their medical expenses

were reasonable and necessary if the evidence established that they “incurred medical

expenses, that the incurrence of these medical expenses was necessary, and that the

particular medical expenses claimed were reasonably related to injuries related to the

subject accident.” Roman, 393 So. 3d at 1267. Florida law did not require Plaintiffs to

prove that the amounts of their medical bills were reasonable as compared to, for

example, average rates charged for similar treatment in the community.

The Court now turns to the arguments raised in Panera’s Motion.

a. Panera is not entitled to judgment as a matter of law as to the

reasonableness of Plaintiffs’ past medical expenses.

Panera asserts it is entitled to a judgment as a matter of law that Plaintiffs failed

to present competent, substantial evidence of the reasonableness of their past medical

expenses. (Dkt. 143 at 3–4) Panera maintains that the only evidence Plaintiffs

produced at trial regarding the reasonableness of the amounts of their medical bills

was Plaintiffs’ “conclusory testimony that the bills and the summaries of the bills were

theirs.” (Id. at 3) Panera contends that none of treating physicians who testified opined

about the reasonableness and necessity of the amounts of Plaintiffs’ bills, and Plaintiffs

offered no expert on the issue. (Id.) Finally, Panera notes that Plaintiffs testified they

still owed the amounts due on the medical bills. (Id. at 3–4)

At trial, Plaintiffs presented their own testimony about their injuries, symptoms,

and why they sought treatment from their medical providers. Plaintiffs’ testimony tied

their treatment to pain and injuries that resulted from the October 3, 2019 accident.

Plaintiffs also presented testimony from their treating physicians, who corroborated

Plaintiffs’ testimony about their injuries and their pain and the necessity of medical

care to relieve their symptoms. Plaintiffs’ treating physicians also opined that the

accident caused Plaintiffs’ injuries. This testimony, coupled with information present

on the medical bills themselves, was sufficient evidence for the jury to find that

Plaintiffs’ past medical expenses were reasonable and necessary under Florida law.

i. Plaintiff’s Evidence as to Plaintiff Young’s Past Medical Expenses

Plaintiff Young testified that immediately following the accident, he

experienced pain on the left side of his neck at the base of his skull. (Trial Tr. Day 2 at

69) An ambulance took Plaintiff Young from the scene of the accident to Sarasota

Memorial Hospital. (Id. at 72) While at the hospital, Plaintiff Young complained of

neck pain, extreme dizziness, and nausea. (Id. at 75) When he got home from the

hospital, Plaintiff Young testified that he felt sore and started feeling a pain in his

buttocks that was shooting down his leg. (Id. at 76)

The day after the accident, Plaintiff Young testified that he visited Dr. Gilbert,

a chiropractor, to try to relieve the pain in his neck and the dizziness. (Id. at 77; Trial

Tr. Day 5 at 11–12) Dr. Gilbert testified that Plaintiff Young sought treatment for neck

pain, back pain, headache, and radicular pain down the left leg. (Trial Tr. Day 5 at

14–16) Plaintiff Young also reported he had trouble sleeping. (Id. at 16) Dr. Gilbert

testified that he ordered x-rays of Plaintiff Young and conducted motion and

orthopedic testing on him. (Id. at 17) Dr. Gilbert testified that Plaintiff Young’s x-rays

showed objective indications of injury consistent with Plaintiff Young’s complaints.

(Id. at 18) Dr. Gilbert testified that Plaintiff Young visited him according to his

recommendation for treating Plaintiff Young’s injuries, three times a week. (Id. at 36)

Dr. Gilbert’s treatment provided Plaintiff Young some temporary relief. (Trial Tr. Day

2 at 78) But Dr. Gilbert, a licensed chiropractor, may not perform surgery, administer

injections, or prescribe medications. (Trial Tr. Day 5 at 30) Plaintiff Young testified

that Dr. Gilbert never prescribed surgery or shots for his pain. (Trial Tr. Day 2 at 81)

Plaintiff Young testified that in September 2020, he saw Dr. Jonathan Hall, a

neurosurgeon, to seek treatment for his symptoms. (Id. at 79-80; Pl.’s Ex. 9 at 4)

Plaintiff Young told Dr. Hall he was experiencing pain at the base of his skull as well

as pain in his buttocks that was shooting down his leg. (Trial Tr. Day 2 at 80) Plaintiff

Young testified that these pains had developed after the accident. (Id.) Plaintiff Young

also testified that he was experiencing extreme migraine headaches, difficulty

concentrating, and extreme dizziness. (Id. at 86) He had trouble with his memory and

had trouble walking. (Id.)

Dr. Hall testified that Plaintiff Young sought treatment for constant neck pain

and upper back pain that radiated toward his left shoulder and into his arms. (Trial Tr.

Day 5 at 227, 229) Dr. Hall also testified that Plaintiff Young complained of lower

back pain that radiated into his left buttock and left thigh area, as well as numbness

and tingling in his left hand. (Id.) Dr. Hall testified that Plaintiff Young told him he

had been seeking chiropractic treatments in hopes of feeling better. (Id. at 230)

Both Plaintiff Young and Dr. Hall testified that Dr. Hall diagnosed Plaintiff

Young with S.I. joint pain and administered injections to his S.I. joint. (Id. at 238;

Trial Tr. Day 2 at 81) Plaintiff Young testified that the first injection alleviated some

of his symptoms. (Trial Tr. Day 2 at 82) However, this relief faded, and the second

injection did not provide any relief. (Id. at 84) Plaintiff Young testified that Dr. Hall

recommended Plaintiff Young undergo a surgical S.I. fusion. (Id.) Plaintiff Young

wanted to avoid surgery, however, and he never underwent an S.I. fusion with Dr.

Hall. (Id. at 85–86)

After seeing Dr. Hall, Plaintiff Young testified that he saw Dr. Joel Franck, a

neurosurgeon, in December 2021. (Trial Tr. Day 2 at 91) Plaintiff Young testified he

visited Dr. Franck for treatment for extreme migraines, dizzy spells, and his difficulty

concentrating. (Id.) Dr. Franck testified that Plaintiff Young complained of the

following: severe neck pain; mid-back pain; pain between his shoulder blades; pain

radiating into his left arm; numbness in his left arm; severe migraine headaches of

which he had no prior history or family history; difficulty with his vision; brain fog;

insomnia; and elevated blood pressure. (Trial Tr. Day 5 at 116)

Dr. Franck testified that he conducted a general physical exam and a detailed

neurological exam of Plaintiff Young. (Id. at 122) Dr. Franck observed that Plaintiff

Young was tender to the touch in the muscles of the neck and the back, particularly at

the juncture of skull and his spine. (Id. at 123) He had limited range of motion in

rotation and flexion. (Id.) He had tenderness in the S.I. joint, where the hip and spine

join in the back. (Id. at 123–24) Dr. Franck also testified that Plaintiff Young had

trouble with his balance. (Id. at 124) The results of these exams indicated to Dr. Franck

that Plaintiff Young had a major problem with his cervical spine and damage to or

dysfunction of the brain stem and the spinal cord in the neck. (Id.)

Dr. Franck ordered an MRI and a moving x-ray for Plaintiff Young. (Id. at 126;

Trial Tr. Day 2 at 93) Dr. Franck testified that the imaging showed Plaintiff Young

suffered a ligament injury in the upper cervical spine from a traumatic event, causing

a mass that was pressing on the lower part of the brain and the upper spinal cord. (Trial

Tr. Day 5 at 130) The imaging also showed Plaintiff Young had herniated discs which

were squeezing the spinal cord, causing many of his symptoms. (Id. at 131)

Dr. Franck testified that if symptoms like Plaintiff Young’s go untreated, they

get worse over time. (Id. at 153) Dr. Franck also testified that non-surgical therapy had

not worked for Plaintiff Young. (Id. at 154) Dr. Franck testified that in his experience,

the only long-term solution for symptoms like Plaintiff Young’s is a spinal fusion

surgery. (Id. at 154–56) So, Dr. Franck recommended and performed an outpatient

spinal fusion surgery on Plaintiff Young. (Id. at 156) After the operation, Plaintiff

Young spent one night in a hotel where a nurse monitored his condition and

administered pain medication for him. (Id.) Then, he went home. (Id.) Both Dr.

Franck and Plaintiff Young testified that the surgery resolved Plaintiff Young’s

migraine headaches, brain fog, and dizziness. (Id. at 159; Trial Tr. Day 2 at 94)

However, he still experienced low back pain and neck pain. (Trial Tr. Day 5 at 159;

Trial Tr. Day 2 at 105–06)

Plaintiff Young then testified that in August 2022 he visited University

Orthopedic Care to resolve the pain in his left buttocks that was shooting down his leg,

which persisted from the date of the accident. (Pl.’s Ex. 10 at 8; Trial Tr. Day 2 at 109–

10) Dr. Shaun Notman testified that he reviewed the x-ray images and the MRI taken

of Plaintiff Young just after the accident. (Trial Tr. Day 3-2 at 106, 117) Dr. Notman

testified that these images revealed that the curvature of Plaintiff Young’s spine had

been straightened and even reversed. (Id. at 107) They also showed that Plaintiff

Young suffered from a disc bulge and two disc herniations. (Id. at 119) The images,

therefore, corroborated Plaintiff Young’s complaints of pain. (Id. at 120) Dr. Notman

also reviewed images taken of Plaintiff Young nearly a year after the accident, in

August 2020. (Id. at 128) Likewise, these images corroborated Plaintiff Young’s

complaints of pain. (Id. at 133) Dr. Notman testified that his physical exam of Plaintiff

Young indicated that Plaintiff Young’s left S.I. joint was inflamed. (Id. at 137–38)

Plaintiff Young and Dr. Notman testified that Dr. Notman administered an

injection in his S.I. joints and performed ablations on his thoracic, lumbar, and both

S.I. joints. (Trial Tr. Day 2 at 109–10; Trial Tr. Day 3-2 at 140; Pl.’s Ex. 10 at 15, 20)

Plaintiff Young testified that these treatments alleviated the symptoms in his back.

(Trial Tr. Day 2 at 116)

On cross-examination, Plaintiff Young testified that he sees an acupuncturist

and Dr. Manny Matthew for medical marijuana. (Trial Tr. Day 3-1 at 19–20)

In addition to his treating physicians, Plaintiff Young’s wife, Barbara Young,

corroborated his testimony about seeking medical care for the pain he experienced

following the accident. (Trial Tr. Day 3-2 at 67–83)

Plaintiff Young identified Plaintiffs’ Exhibit 24 as a collection of his medical

bills.1 (Trial Tr. Day 2 at 137) He testified that all these bills were for treatment related

to the injuries he suffered because of the accident on October 3, 2019. (Id.) He testified

that none of the bills were for treatment for any conditions that pre-existed the accident

or for any conditions unrelated to the accident. (Id.)

ii. Plaintiff’s Evidence as to Plaintiff Firman’s Past Medical Expenses

Plaintiff Firman testified that he complained of neck pain to the EMS at the

scene of the accident and was taken to Sarasota Memorial Hospital for diagnostic

testing. (Trial Tr. Day 3-1 at 81) Plaintiff Firman also testified that he quickly sought

chiropractic treatment from Dr. Gilbert for feelings of tightness and stiffness from the

base of his skull down to his middle back, which radiated to his shoulder blades. (Id.

at 84–85) Dr. Gilbert testified that Plaintiff Firman also complained of headache,

blurred vision, and numbness in hands and feet. (Trial Tr. Day 5 at 42) As he did with

Plaintiff Young, Dr. Gilbert took x-rays of Plaintiff Firman and performed various

tests on him to diagnose his symptoms. (Id. at 44–45) Dr. Gilbert testified these tests

1 The total of Plaintiff Young’s medical expenses according to the summary in Exhibit 24 is

$640,770.34. (Pl.’s Ex. 24) At trial, however, Plaintiff Young testified the total that appeared on the

summary was $639,165.34. (Trial Tr. Day 2 at 138) The Parties do not raise this discrepancy for this

Court’s consideration.

and images were consistent with the symptoms Plaintiff Firman reported. (Id. at 46)

According to Plaintiff Firman, Dr. Gilbert’s treatment alleviated his symptoms,

but he still experienced them. (Id. at 88) He testified that he sought treatment from

University Orthopedic Care to treat his lingering symptoms. (Id. at 89) At University

Orthopedic Care, Plaintiff Firman saw Dr. James. (Id. at 91) Plaintiff Firman testified

that Dr. James administered steroid injections into Plaintiff Firman’s back, which

relieved some of his pain for about a year. (Id. at 92–93) Plaintiff Firman went back to

Dr. James when the relief subsided. (Id. at 95) Dr. James recommended Plaintiff

Firman undergo another round of steroid injections, which he did. (Id. at 96) Plaintiff

Firman testified that the injections relieved some of his pain, but not all of it. (Id. at

97) At the time of the trial, Plaintiff Firman testified he still experienced soreness and

stiffness and “a lot of general pain . . . behind my neck and my upper spine . . . .” (Id.

at 98) Plaintiff Firman testified he did not have such pain, soreness, or stiffness before

the accident. (Id.)

Although Dr. James did not testify at the trial, Dr. Notman testified that he

supervises Dr. James. (Trial Tr. Day 3-2 at 151) Based on Dr. Notman’s review of Dr.

James’s notes, Dr. Notman explained that Dr. James administered steroid injections

to Plaintiff Firman because the diagnostic imaging and Plaintiff Firman’s consistent

complaints of pain resulting from a car accident supported that course of treatment.

(Id. at 151–56)

Plaintiff Firman identified Plaintiffs’ Exhibit 33 as a collection of his medical

bills. (Trial Tr. Day 3-1 at 99) He testified that these bills were for treatment related to

the injuries he suffered because of the accident on October 3, 2019. (Id.) Plaintiff

Firman linked each of the bills to the treatment of his pain following the accident,

except for the bill from Radiology Associates of Florida. (Id. at 100–01) He could not

recall the services or treatment Radiology Associates of Florida provided him. (Id. at

101) However, the medical bill from Radiology Associates of Florida shows it was for

$130 for a radiological examination of the cervical spine on October 3, 2019 at

Sarasota Memorial Hospital Emergency Room. (Pl.’s Ex. 33 at 13) Thus, the jury

could reasonably have concluded that this medical bill relates to Plaintiff Firman’s

treatment on the day of the accident.

The foregoing evidence is sufficient to establish that Plaintiffs “incurred medical

expenses, that the incurrence of these medical expenses was necessary, and that the

particular medical expenses claimed were reasonably related to injuries related to the

subject accident.” Roman, 393 So. 3d at 1267. Plaintiffs were not required to present

evidence to justify the amounts of the medical bills. Instead, Florida law required

Plaintiffs to present evidence sufficient to tie the incurrence of the expenses to the

October 3, 2019 accident. See id. at 1268. The Court finds Plaintiffs presented evidence

sufficient for the jury to conclude that they carried this burden. Panera is not entitled

to judgment as a matter of law on the issue of the reasonableness of Plaintiffs’ past

medical expenses.

b. Panera is not entitled to a new trial.

Panera asserts three grounds for its request for a new trial under Rule 59. First,

Panera argues this Court abused its discretion to exclude Panera’s medical billing and

coding expert. (Dkt. 143 at 5–20) Second, Panera contends it was denied a fair trial

because the Court admitted Plaintiffs’ medical bills into evidence even though, Panera

argues, Plaintiffs presented insufficient evidence of their reasonableness and necessity.

(Id. at 20) Third, Panera argues Plaintiffs’ counsel’s rebuttal closing argument

contained improper arguments that rendered the trial unfair. (Id. at 21–23)

i. The Court did not abuse its discretion to exclude Panera’s medical

billing and coding expert.

Panera argues that the Court improperly excluded the testimony of Keyona

White, Panera’s medical billing and coding expert. To determine whether expert

testimony may be admitted, the court must consider whether:

(1) the expert is qualified to testify competently regarding

the matters the expert intends to address; (2) the

methodology by which the expert reaches his or her

conclusions is sufficiently reliable; and (3) the testimony

assists the trier of fact, through the application of scientific,

technical, or specialized expertise, to understand the

evidence or to determine a fact in issue.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (citations omitted).

Additionally, “[b]ecause of the powerful and potentially misleading effect of expert

evidence, sometimes expert opinions that otherwise meet the admissibility

requirements may still be excluded by applying Rule 403.” Id. at 1263 (citations

omitted).

Panera argues Ms. White was qualified to testify about the reasonableness of

the cost of Plaintiffs’ medical treatment. Panera asserts that any disputes over the

strength of Ms. White’s qualifications should have gone to the weight of her testimony,

not to its admissibility. (Id. at 10) Then, Panera argues that Ms. White’s experience

and specialized knowledge regarding medical coding and regional pricing qualified her

to opine as to the reasonableness of the amounts charged for the treatments Plaintiffs

received. (Id. at 10–11)

Next, Panera argues Ms. White used a reliable methodology and reliable data

to draw her conclusions. Panera argues that Ms. White relied on peer-reviewed data

sources approved by health care professionals and other billing and coding

professionals. (Id. at 12) Panera contends that Ms. White’s reliance on these data

sources is the standard practice of the medical community. (Id. at 13) Panera points to

other cases in which courts admitted expert testimony that relies on the databases on

which Ms. White relies. (Id.) Thus, Panera argues Ms. White’s data was reliable. (Id.)

Even if the data were flawed, however, Panera argues the flaws would be relevant to

the weight of her testimony and not its admissibility. (Id. at 12) As to the data’s

relevance, Panera argues Ms. White’s data reflects the amounts charged by physicians,

not the amounts paid for services. (Id.) Thus, Panera argues Ms. White’s data permits

her to determine “objectively reasonable” charges for medical services. (Id. at 12–13)

(“For example, although Plaintiffs were not Medicare recipients, Medicare rates

provide indicia of what is reasonable.”)

Panera also argues that Ms. White’s testimony would have been helpful to the

jury because the market value of medical services in a certain community is outside of

technical province of the jury. (Id. at 15–17) Panera contends that the jury was required

to decide that the cost of Plaintiffs’ care was reasonable. (Id.) Panera maintains that

without Ms. White’s testimony, the only justification for Plaintiffs’ medical expenses

was the medical bills themselves. (Id. at 16)

Panera argues that Ms. White’s testimony would not have been an improper

conduit for inadmissible hearsay. (Id. at 17–19) Panera notes that the experts may rely

on hearsay sources and data to form an opinion. (Id. at 18)

Finally, Panera argues that this Court should not have relied on persuasive

authority from within the Eleventh Circuit that excluded other medical billing and

coding experts because the inquiry is specific to the qualifications of the individual

expert. (Id. at 20) Panera argues that the proper exclusion of another medical billing

expert does not necessarily support this Court’s exclusion of Ms. White. (Id.)

In response, Plaintiffs argue that the Court did not abuse its discretion in

concluding that Ms. White’s qualifications were insufficient to opine as to the

reasonableness of Plaintiffs’ medical expenses because coding experts are only

qualified to testify about whether medical bills were coded correctly, not whether

medical charges were reasonable. (Dkt. 149 at 7) Plaintiffs cite to several cases,

including an unpublished opinion of an Eleventh Circuit panel, to support their

position. (Id.) Plaintiffs note that according to Ms. White’s CV, Ms. White has never

established or negotiated a medical provider’s fees or rates. (Id. at 9) Plaintiffs argue

this fact shows Ms. White has even less experience than other coding experts whose

testimony has been excluded, such as those whose experience included establishing

rate structures for providers, helping insurers with valuation issues, and negotiating

third-party payer contracts. (Id.) Moreover, Plaintiffs point out that Panera relies on

cases in which courts admitted testimony from coding experts who were medical

professionals, like surgeons and registered nurses. (Id. at 9–10) Ms. White, Plaintiffs

note, is not a medical professional. (Id.)

Plaintiffs also argue that the Court did not abuse its discretion in finding that

Ms. White’s testimony would not assist the jury in deciding whether Plaintiffs’ medical

expenses were reasonable. (Id. at 10) Plaintiffs argue that Ms. White’s conclusions as

to the reasonable rate for certain medical treatments based on the mean billing rates

for those treatments is irrelevant to the question of whether Plaintiffs’ medical

expenses were reasonable under Florida law. (Id. at 11) Plaintiffs also argue that even

though Ms. White’s data sources address the rates charged and not the amounts paid,

Panera failed to show that Ms. White’s conclusions were not skewed by her belief that

certain third-party payer rates indicate what is reasonable. (Id.) Then, Plaintiffs also

note that Ms. White’s data sources do not consider self-pay bills. (Id. at 13)

The Court is not persuaded that it abused its discretion in excluding Ms. White’s

testimony. Plaintiffs’ responses to Panera’s arguments are well-reasoned and

supported by the law. In particular, Ms. White, as a medical billing and coding expert,

is not qualified to testify as to the reasonableness of the amounts charged for medical

services. See Frushtick v. FeroExpress Inc., No. 18-cv-2891, 2022 WL 824239, at *4

(N.D. Ga. Mar. 18, 2022); Esteban-Garcia v. Wal-Mart Stores East LP, No. 21-cv-

23831, 2022 WL 15493702, at *3 (S.D. Fla. Oct. 14, 2022); Collazo v. Progressive

Select Ins. Co., No. 1:23-cv-22953, 2024 WL 4472013, at *3 (S.D. Fla. Sept. 23, 2025)

(noting that “coding ‘experts’ are generally unqualified to testify as to the reasonable

charges for the myriad medical procedures involved in injury cases”); cf. Castellanos

v. Target Corp., 568 F. App’x 886, 886 (11th Cir. 2014) (acknowledging a medical

billing and coding expert would be qualified to opine “that the medical services billed

did not reflect medical services actually delivered according to the treatment

records”).2 Additionally, Ms. White’s opinion about customary amounts charged for

procedures billed by Plaintiffs’ treating physicians would not be helpful to the jury.

Hughes v. Wal-Mart Stores East, LP, No. 22-cv-60911, 2023 WL 3204662, at *4 (S.D.

Fla. May 2, 2023); Frushtick, 2022 WL 824239, at *3; Esteban-Garcia, 2022 WL

15493702, at *3; Campo v. United States, No. 18-cv-80946, 2020 WL 774286, at *3

(S.D. Fla. Jan. 13, 2020); Maluff v. Sam’s East, Inc., No. 17-cv-60264, 2017 WL

5290879, at *1 (S.D. Fla. Nov. 9, 2017). As stated at the beginning of this discussion,

to establish the reasonableness and necessity of their past medical expenses, Florida

law required Plaintiffs to tie their medical expenses to the injuries they suffered as a

result of the October 3, 2019 accident. Florida law did not require Plaintiffs to justify

the amount of each of their medical bills as “reasonable” under a market standard for

medical charges in the community. Thus, Ms. White’s opinion about the “reasonable”

market rates charged for the treatment provided to Plaintiffs—as indicated by

Medicare rates, for example—would not have helped the jury understand the evidence

or determine a fact in issue. The persuasive authority of the aforementioned cases

2 The Court notes that “[a]lthough an unpublished opinion is not binding on this court, it may be

considered as persuasive authority. See 11th Cir. R. 36-2.” United States v. Futrell, 209 F.3d 1286,

1289 (11th Cir. 2000). Where cited herein, any unreported decision of a panel of the Circuit is

considered well-reasoned and is offered as persuasive, not binding.

assures the Court that it did not abuse its discretion in excluding Ms. White’s

testimony.

Ms. White was not offered to testify that Plaintiffs’ medical expenses were too

high for case-specific reasons or that Plaintiffs did not actually incur the expenses for

treatments that they claimed they underwent. Instead, Ms. White was offered to opine

that certain dollar amounts are objectively reasonable amounts to charge for certain

treatments. This opinion was derived from statistical analysis of billing and payment

practices. Ms. White would have opined that any greater dollar amount is

unreasonable. In arriving at this conclusion, however, Ms. White apparently did not

consider Plaintiffs’ inability to negotiate their rates. Also, Ms. White apparently did

not consider that there was no evidence that Plaintiffs’ treating physicians would have

been amenable to accepting any lower rate of reimbursement. The Court excluded Ms.

White’s testimony because the testimony was likely to confuse the issues, mislead the

jury, and cause unnecessary protraction of the proceedings. Panera does not persuade

the Court that this decision was error.

The Court denies Panera’s request for a new trial on the basis that the Ms. White

was improperly excluded.

ii. The Court did not abuse its discretion to admit Plaintiffs’ medical

bills.

Panera argues that because evidence was insufficient to support the

reasonableness and necessity of Plaintiffs’ medical treatment, the Court should have

excluded Plaintiffs’ medical bills as evidence of past medical expenses. (Dkt. 143 at

20) Panera requests the Court order a new trial without the admission of the medical

bills. (Id.) Plaintiffs respond that their own testimony and the testimony of their

medical providers established a sufficient predicate to admit the medical bills into

evidence. (Dkt. 149 at 15)

Plaintiffs’ “detailed description[s] of the treatment procedures clearly related the

[treatment] to the accident.” Easton v. Bradford, 390 So. 2d 1202, 1204 (Fla. 2d DCA

1980). Their testimony alone was sufficient to support the admission of the medical

bills into evidence. See id. Plaintiffs also presented testimony from several of their

medical providers who tied the actual treatment for which Plaintiffs were billed to their

injuries and pain resulting from the October 3, 2019 accident. This testimony,

especially when considered with Plaintiffs’ testimony, was sufficient to support the

admission of the medical bills into evidence. See Walerowicz, 248 So. 3d at 145.

Based on the foregoing, Panera fails to establish that the Court erred in

admitting the medical bills into evidence. A new trial on this basis is not warranted.

iii. Panera does not establish it is entitled to a new trial because of

Plaintiffs’ counsel’s rebuttal closing argument.

Panera argues that it was denied a fair trial because Plaintiffs’ counsel made

several allegedly improper arguments about Panera’s failure to take responsibility.

(Dkt. 143 at 21) Panera notes that Plaintiffs’ counsel stated in his rebuttal closing

argument:

The bottom line here is this is what it looks like when a

corporation does not take responsibility, that's it, that's

what's going on here, and it's been going on since the very

first day. This is a company that did not -- they didn't even

want to admit to you, first of all, that the crash occurred the

way it obviously did, that everyone said it did.

(Id. at 21 (quoting Dkt. 143-2 at 58)) Next, Panera notes Plaintiffs’ counsel stated that

“because Panera won’t take responsibility,” Panera forced Plaintiffs to disclose their

treating doctors going back ten years. (Id. at 22 (quoting Dkt. 143-2 at 62)) Then,

Panera notes Plaintiffs’ counsel argued Panera wanted to “attack [Plaintiff Young’s]

character, they want to attack our doctors, they want to distract you from any possible

understanding of the truth, which is that . . . their driver injured both of these grown

men permanently, okay?” (Id. (quoting Dkt. 143-2 at 64)) Finally, Panera notes

Plaintiffs’ counsel argued as to their requested award of damages, “That’s what justice

and responsibility looks like in this case.” (Id. (quoting Dkt. 143-2 at 69))

Panera also argues Plaintiffs’ counsel made improper “conscience of the

community” arguments during closing. (Id. at 23) Panera notes Plaintiffs’ counsel

addressed the jury, “[Y]ou have to make [Panera] responsible. You’re the only one

that can do it.” (Id. (quoting Dkt. 143-2 at 66))

Even though Panera raised no objection to these comments during Plaintiffs’

closing argument, Panera argues the Court’s failure to take any action to curb the effect

of these statements on the jury constituted fundamental error. (Id.)

In response, Plaintiffs argue these comments were not improper and that their

publication to the jury did not constitute plain error. (Dkt. 149 at 15) Plaintiffs note

that the allegedly improper comments were based on evidence introduced at trial. (Id.

at 16) Plaintiffs also argue the comments, when understood in context, did not criticize

Panera for defending against Plaintiffs’ claims. (Id. at 17) Finally, Plaintiffs argue these

few comments made at end of a trial that lasted more than a week were not so

prejudicial as to warrant a new trial. (Id. at 18) Plaintiffs correctly note that federal law

governs whether counsel’s arguments were so improper that a new trial is warranted.

See Fed. R. Civ. P. 59(a)(1)(A) (permitting a court to grant a new trial “for any reason

for which a new trial has heretofore been granted in an action at law in federal court”).

“[A] timely objection is necessary to bring to the district court’s attention errors

in counsel’s arguments.” Oxford Furniture Companies, Inc. v. Drexel Heritage

Furnishings, Inc., 984 F.2d 1118, 1128 (11th Cir. 1993) (citations omitted). “When no

objections are raised, [an appellate court] review[s] the arguments for plain error, but

a finding of plain error ‘is seldom justified in reviewing argument of counsel in a civil

case.’” Id. (citations omitted). Under the plain error standard, “there must be (1) error,

(2) that is plain, and (3) that affects substantial rights.” Higgs v. Costa Crociere S.P.A.

Co., 969 F.3d 1295, 1307 (11th Cir. 2020) (citations and internal quotations omitted).

“If all three conditions are met, an appellate court may then exercise its discretion to

notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Id.; see also Strait v. Busch Ent’t Corp.,

No. 8:05-cv-1864, 2007 WL 496607, at *2 (M.D. Fla. Feb. 12, 2007) (considering a

request for a new trial on grounds that the defendant’s counsel made improper

arguments during closing argument and applying the plain error standard of review).

Against this high standard, Panera fails to establish the Court committed plain

error by failing to address Plaintiffs’ counsel’s arguments. “Arguing that it is

reprehensible for the defendant you are suing to defend itself ‘serves no proper purpose’

and can sometimes be the basis for a new trial.” Sowers v. R.J. Reynolds Tobacco Co.,

975 F.3d 1112, 1123 (11th Cir. 2020) (citation omitted). However, while “[e]very

defendant has a right to present a defense,” a defendant may not “prevent the plaintiff

from replying to it.” Id. at 1125.

In rebuttal closing argument, Plaintiffs’ counsel argued that the substance of

Panera’s defense exhibited a failure to take responsibility. In particular, counsel

criticized Panera’s heavy reliance on the testimony of Kyla Hullick, the Panera

employee who rear-ended Plaintiffs, as evidence that the accident was not her fault.

Plaintiffs’ counsel noted that Ms. Hullick described the accident differently at trial than

she had to her supervisor at the scene of the accident. (Trial Tr. Day 1 at 191; Trial Tr.

Day 4 at 129-40) Her testimony also conflicted with the testimony of several of the

other witnesses. For example, she testified that the when the accident occurred, traffic

was not stopped or slowing and all the cars were moving. (Trial Tr. Day 4 at 132) No

other witness testified that the accident occurred this way, including Panera’s

biomechanical engineering expert, Dr. Ming Xiao. (Trial Tr. Day 1 at 175; Trial Tr.

Day 6 at 213) Notably, also, while Ms. Hullick gave her version of the details of the

accident, she testified she could not recall any other relevant details, such as whether

her Panera supervisor met her at the scene of the accident or whether she returned to

work after the accident or went home. (Trial Tr. Day 4 at 129–40) Her inability to

recall these details undermined the credibility of her testimony that the accident was

not her fault. Plaintiffs’ counsel noted that Panera, by adopting Ms. Hullick’s

incredible version of events, “did not . . . admit to [the jury] . . . that the crash occurred

the way it obviously did, that everyone said it did.” (Dkt. 143-2 at 58) In other words,

Plaintiffs’ counsel argued, Panera failed to take responsibility. The Court is not

persuaded this argument was improper. Thus, the Court did not plainly err by not

objecting to it sua sponte.

Next, in rebuttal closing argument, Plaintiffs’ counsel argued that because of

Panera’s failure to take responsibibility, Panera required Plaintiffs to disclose “every

single doctor” they had visited in ten years. (Dkt. 143-2 at 62) Plaintiffs’ counsel also

argued that Panera attacked the character of both Plaintiffs and Plaintiffs’ treating

physicians. These arguments responded to several arguments Panera’s counsel made

in closing argument. First, Panera’s counsel implied that Plaintiff Young sold his car

to prevent it from being inspected. (Dkt. 143-2 at 39) Panera’s counsel also implied

that Plaintiff Young purposely failed to disclose his prior experience with back pain

and a prior incident that could have resulted in injury to his spine. (Id. at 49–50) As

for Plaintiffs’ physicians, Panera’s counsel stated that Dr. Franck recommended

surgery even though “all objective testing he performed on [Plaintiff] Young was

normal.” (Id. at 46) Importantly, also, Panera’s counsel implied that Dr. Franck

benefitted financially from prescribing Plaintiff Young an unnecessary surgery because

Dr. Franck owns a share in the surgical outpatient center where the surgery took place.

(Id.) Finally, Panera’s counsel implied that Plaintiffs lied about their pain and what

caused it:

So, in summary, the evidence presented to you by the

records, the photographs and the testimony shows that this

jolt or bump to the rear bumper of Mr. Young's vehicle,

which was at most at an impact of 9 miles per hour, did not

cause the type of injuries that are being claimed in this case,

they did not cause any acute anatomical or traumatic

injuries, and [they caused] none of the damages being

claimed by the plaintiffs, Fred Young and Jeff Firman.

(Id. at 54)

Panera argues that Plaintiffs’ counsel’s arguments in rebuttal improperly

criticized Panera’s decision to defend this case on grounds that the accident did not

cause Plaintiffs’ injuries. Plaintiff Young had a history of back pain. Panera was

entitled to offer proof of this history as evidence that the October 3, 2019 did not cause

Plaintiff Young’s injuries. However, Plaintiffs were entitled to respond to this defense

by Panera.

Importantly, Panera did not just emphasize the evidence that Plaintiff Young

experienced back pain prior to the accident. Panera emphasized its position that

Plaintiff Young intentionally failed to disclose the fact that he sought treatment for

back pain in 2008. Panera also indicated that Plaintiff Young intentionally destroyed

evidence when he sold the car involved in the accident to a junkyard. Panera implied

that Dr. Frank recommended an unnecessary surgery for his own financial gain. These

implications of Plaintiff Young’s and Dr. Franck’s alleged dishonesty supported

Panera’s conclusion that Plaintiffs and their doctors must be lying about their pain or

about what caused it. In rebuttal, Plaintiffs’ counsel defended Plaintiff Young’s failure

to disclose his prior back pain by characterizing Panera’s request for more than 10

years of medical history as unreasonable and indicative of a failure to take

responsibility. Plaintiffs’ counsel reasonably characterized Panera’s other arguments

as accusations that Plaintiff Young and Dr. Franck are liars or frauds, attacking their

characters. Taking into account the nature of Panera’s closing, the Court cannot find

that the rebuttal arguments were improper or warrant a new trial. See Strait, 2007 WL

496607, at *1–2 (finding defense counsel’s statements during closing that plaintiffs,

their experts, and their counsel “were involved in a conspiracy to defraud the Court

and the jury” did not warrant a new trial under the plain error standard).

As for the final, allegedly improper argument about responsibility, Plaintiffs’

counsel said of their request for damages, “That’s what justice and responsibility look[]

like in this case.” (Dkt. 143-2 at 69) This comment used rhetorical language to

summarize the value of Panera’s liability from Plaintiffs’ perspective. The Court is not

persuaded that this argument was improper.

Finally, Panera argues Plaintiffs’ counsel made an improper “conscience of the

community” argument when counsel stated, “[Y]ou have to make them responsible.

You’re the only one that can do it.” (Id. at 60) “Arguments which invite a jury to act

on behalf of a litigant become improper ‘conscience of the community’ arguments

when the parties’ relative popular appeal, identities, or geographical locations are

invoked to prejudice the viewpoint of the jurors.” Guar. Serv. Corp. v. Am.

Employers’ Ins. Co., 893 F.2d 725, 729 (5th Cir. 1990), modified on reh’g, 898 F.2d

453 (5th Cir. 1990). Notably, the Court is aware of no civil case in which the Eleventh

Circuit has acknowledged an improper “conscience of the community” argument.3

Nonetheless, the Court considers whether Plaintiffs’ comment improperly pitted the

jurors against a foreign, corporate defendant. The Court finds it did not. Instead,

Plaintiffs’ counsel’s argument reminded the jury of their role as the finders of fact with

the obligation to decide which Party was liable for Plaintiffs’ injuries. Moreover, the

comment was not so inflammatory as to elicit an objection from Panera during trial.

The Court concludes its decision not to interject sua sponte to admonish counsel

regarding this comment, where Defendant interposed no objection, was not error.

For the foregoing reasons, Plaintiffs’ counsel’s closing arguments do not entitle

Panera to a new trial.

c. Panera is not entitled to remittitur.

Finally, Panera argues the Court should reduce the jury’s award of damages

because, in Ms. White’s opinion, the reasonable value of the past medical charges for

Plaintiff Young was $234,956.07 and the reasonable value of the past medical charges

for Plaintiff Firman was $50,066.32. (Dkt. 143 at 24) Panera argues the Court should

remit or reduce the jury’s award of past economic damages to Plaintiffs to these

amounts. (Id. at 24–25) Additionally, Panera argues the “excessive past economic

damages likely contributed to the jury’s calculation of past non-economic damages,”

3 The Eleventh Circuit has explored the propriety of “conscience of the community” arguments in

appeals of criminal cases. See, e.g., United States v. Kopituk, 690 F.2d 1289, 1342–43 (11th Cir. 1982)

(“Appeals to the jury to act as the conscience of the community, unless designed to inflame the jury,

are not per se impermissible.”); United States v. Smith, 918 F.2d 1551, 1562–63 (11th Cir. 1990)

(“Prosecutorial appeals for the jury to act as ‘the conscience of the community’ are not impermissible

when they are not intended to inflame.”).

so the jury’s award of past non-economic damages should be remitted as well. (Id. at

25)

As discussed above, Plaintiffs’ evidence supports the jury’s award of past

medical expenses for both Plaintiffs under Florida law. Ms. White’s opinion as to the

reasonable value of Plaintiffs’ medical expenses is not relevant. The Court declines to

remit the jury’s award of damages on this basis.

IV. CONCLUSION

Upon consideration of the foregoing, the Court hereby ORDERS that Defendant

Panera, LLC’s Renewed Motion for Judgment as a Matter of Law, Alternative Motion

for New Trial or Motion for Remittitur, (Dkt. 143), is DENIED. Defendant Panera,

LLC’s Request for Oral Argument on the Motion, (Dkt. 144), is DENIED AS MOOT.

DONE AND ORDERED in Tampa, Florida, this 20th day of August 2025.

LN py! Aine

MARY\S_SGRIVEN

Copies furnished to: UNITED STATES DISTRICT JUDGE

Counsel of record

Any pro se party

34