Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT PROGRESSIVE SELECT INSURANCE COMPANY, Appellant, v. MARRIETTA REINBERGER, Appellee. No. 2D2024-2657 September 18, 2026 Appeal from the Circuit Court for Pasco County; Kimberly Sharpe Byrd, Judge. Drew W. Peeler and Kevin D. Franz of Boyd & Jenerette, P.A., Boca Raton, for Appellant. Brian J. Lee of Morgan & Morgan, Jacksonville, for Appellee. MORRIS, Judge. Progressive Select Insurance Company (Progressive) appeals a final judgment entered in favor of Marrietta Reinberger in her action to recover uninsured motorist benefits from Progressive. Because we conclude that the trial court erred by denying Progressive's motion for directed verdict as to future medical expenses, we strike that portion of the judgment. 1 BACKGROUND Because our disposition is based on a narrow issue, a recitation of facts related to only that issue is necessary. This action arose out of a December 24, 2019, automobile accident involving an underinsured/uninsured driver. Reinberger sued Progressive, her uninsured motorist (UM) carrier, seeking UM benefits. Progressive answered, denying liability, causation, permanency, and damages and raising various affirmative defenses. Reinberger retained Dr. Kevin Smith, who is a life care planner board certified in occupational and preventative medicine. Of relevance here, Dr. Smith's opinions about the necessity of future medical treatments were based on interviews he had with Reinberger, a clinical interview with her treating physician's assistant, and a review of Reinberger's history and medical records. At his deposition, Dr. Smith explained that the ultimate objective of creating a life care plan is to map out future medical costs for the remainder of a person's life. Dr. Smith does not treat the patient or create a new diagnosis. 1 Progressive also argues that: (1) the trial court erred by permitting Reinberger's expert, Dr. Kevin Smith, to testify about future medical expenses because he was not qualified to testify on that issue; (2) the trial court erred by admitting unreliable opinion evidence from another of Reinberger's experts related to the forces involved in the accident and how they related to causation; and (3) the trial court erred by excluding evidence from Progressive's expert on the issue of forces involved in equivalent activities. We find no merit to these arguments and do not address them further. 2 Dr. Smith testified that he never spoke to an orthopedic surgeon, neurosurgeon, or any other surgeon or medical doctor regarding potential future surgery for Reinberger. He also did not physically examine Reinberger. He testified that he used his expertise to reach some of his conclusions. At trial, Dr. Smith testified that to create Reinberger's life care plan, he reviewed her medical records, identified the diagnoses made by her providers, and outlined the procedures and testing that was performed. He spoke with Reinberger and her providers when possible, and he then identified necessary future care and put that information into his medical cost table. Dr. Smith noted that Reinberger was taking three medications, and he estimated the total future costs of those medications. He testified that Reinberger would need to see a spine specialist for a five-year period, a joint specialist for a three-year period, a neurologist for needle studies over a one-year period, a pain management specialist for the remainder of Reinberger's life expectancy (thirty years), and a physical therapist twelve times per year for the remainder of Reinberger's life expectancy. Dr. Smith testified that he included the physical therapy visits because he believes Reinberger will experience two flare-ups per year. Despite testimony that Reinberger refused to be seen by a physical therapist, Dr. Smith included the visits because Reinberger's situation "may" change. Dr. Smith testified that Reinberger "should have the opportunity" to attend physical therapy, that its usefulness "may" become more apparent to her over time, and that she may opt to go at some point in the future. Dr. Smith estimated that the future provider visits would cost a total of $103,716. 3 Reinberger's life care plan also included $14,254 for future diagnostic studies. Dr. Smith testified this "could be" counseling or "could be" assistance with life modifications. Dr. Smith also included $4,800 for a TENS unit, though Dr. Smith admitted he was not aware if Reinberger had ever used one;2 Dr. Smith opined that it was reasonably certain that Reinberger would need a TENS unit within thirty years. Dr. Smith also included $60,318 for future procedures. These included a shoulder diagnostic "if appropriate," injections, an RFA 3 "if" she has short-term relief, a subsequent RFA which she could "potentially" need, and a weaning program which she "may need" if she stops taking one of her medications. Dr. Smith acknowledged that the three RFA treatments were included because Reinberger's providers told him that the RFAs were "possibilities," though Dr. Smith admitted he did not know if RFAs were currently recommended. Dr. Smith also acknowledged that Reinberger did not undergo the RFA when it was previously recommended. But he included it in the life care plan because sometime during her life expectancy, her fear and avoidance of such procedures "may" change "if" her pain level increases. The life care plan also included injections and similar treatments, which Dr. Smith testified were generally discussed with Reinberger's providers. Dr. Smith testified that he knew that Reinberger had not seen an orthopedist for her spine since December 2021; he did not know if she had ever seen one for her shoulder. He did not know when Reinberger had last seen a neurologist, but he included neurologist visits in the life 2 Reinberger subsequently testified that she did, in fact, have a TENS unit. 3 This is a radiofrequency ablation, which Dr. Smith explained was "a procedure where we actually burn [a] nerve root that will give pain relief somewhere between [sixteen] and [eighteen] months." 4 care plan because Reinberger's neck "may" become more relevant, her neck "could be" the source of her pain in her shoulder, and such visits "may" help differentiate how much care would be required in one area. Dr. Smith testified he was not aware of what Reinberger's providers' current recommendations were in terms of future treatment. Dr. Smith acknowledged that he did not think he had Reinberger's complete medical history and did not know whether he even had the majority of her records from the prior ten years. Dr. Smith's total estimate for the entire life care plan was $233,478. He responded, "Yes," when asked if "the inclusion of all of the previous items that we discussed [were] included within a reasonable degree of medical certainty." The physician's assistant who treated Reinberger testified that Reinberger's initial treatment consisted of injections before she was referred for a surgical consultation. The physician's assistant provided Reinberger with medication and, after her surgery, he treated Reinberger with blocks and injections. Though the physician's assistant recommended the RFA, he noted that Reinberger was "leery about the discomfort she would experience." The physician's assistant testified that within a reasonable degree of medical certainty, he planned on treating Reinberger solely with medical medication management; he testified that it was "very doubtful" that he would recommend injections in the future because at a certain point, there is a limit that is reached. He testified that Reinberger elected not to move forward with the RFA recommendation, and he did not anticipate that she would undergo that treatment in the future. The physician's assistant also opined that the RFA procedure could not be performed at a certain spot due to Reinberger's surgery. 5 Reinberger testified that she did not move forward with the RFA because her husband previously underwent the procedure and had a lot of complications. This caused her to be scared of possible complications for herself. She testified that the physician's assistant told her that he still believed she would benefit from the RFA, but she replied, "I told him at some point in time I'm going to change my mind, but at this point, no." After being asked again about whether she had any intentions to have the RFA, she replied, "It depends [on] what they can talk me into." She acknowledged that "[s]ix months from now [she] could change [her] mind." Reinberger also testified that at that point, she had no plans to go to physical therapy. She brought it up with a prior provider who told her that it was not necessary. She did not believe that it would help her. She also did not plan to undergo any further injections. When asked why she did not want to move forward with those treatments, she explained that she was tired of being "poked and prodded" and that she wanted to find normalcy. Progressive moved for directed verdict on future damages at the conclusion of Reinberger's case-in-chief, arguing that Reinberger did not present sufficient evidence to prove any amount of future damages. To support this argument, Progressive pointed to both the physician's assistant's testimony and that of Reinberger regarding whether Reinberger would undergo physical therapy or have the RFA performed. Reinberger's counsel argued in relevant part that future medical expenses were a jury question because Reinberger did not definitively rule out those treatments. The trial court denied the motion, finding that because Reinberger acknowledged that she could change her mind and never testified that she would never do it, the issue was one for the jury. Ultimately, the jury returned its verdict, finding that the 6 underinsured/uninsured driver was 90% liable for the accident while Reinberger was 10% liable. The jury concluded that Reinberger sustained damages of $230,000 in future medical expenses. Progressive subsequently filed its renewed motion for directed verdict or, alternatively, motion for new trial or for remittitur. Progressive argued in relevant part that "[t]he mere possibility that certain treatment might be obtained in the future cannot form the basis of an award of future medical expenses." Progressive asserted that Dr. Smith's testimony regarding the need for the treatments and the cost of such care "amounted to mere possibilities and speculation." Progressive further argued that no view of the evidence could support a finding that Reinberger was reasonably certain to undergo the treatments listed in the life care plan. In the portion of the motion requesting a new trial, Progressive argued in relevant part that damages for future medical care "must be based on testimony by the plaintiff's treating physicians, or experts within specific and relevant fields, who are to opine within a reasonable degree of medical probability that the plaintiff is 'reasonably certain' to incur specific medical care in the future." Progressive's motion was ultimately denied. ANALYSIS "We review a trial court's ruling on a motion for directed verdict de novo." Fasani v. Kowalski, 43 So. 3d 805, 812 (Fla. 3d DCA 2010) (citing Diaz v. Impex of Doral, Inc., 7 So. 3d 591, 593 (Fla. 3d DCA 2009)). We must construe a trial court's denial of a motion for directed verdict "in the light most favorable to the nonmoving party." Id. (citing Olsten Health Servs., Inc. v. Cody, 979 So. 2d 1221, 1223 (Fla. 3d DCA 2008)). "A directed verdict is proper only when the record conclusively shows an 7 absence of facts or inferences from facts to support a jury verdict." Id. (quoting Schreidell v. Shoter, 500 So. 2d 228, 232 (Fla. 3d DCA 1986)). "Where a plaintiff seeks damages for future medical expenses, only medical expenses that are reasonably certain to be incurred in the future are recoverable." GEICO Indem. Co. v. DeGrandchamp, 102 So. 3d 685, 686 (Fla. 2d DCA 2012) (first citing Loftin v. Wilson, 67 So. 2d 185, 188 (Fla. 1953); and then citing Truelove v. Blount, 954 So. 2d 1284, 1287 (Fla. 2d DCA 2007)). "There must also be an evidentiary basis upon which the jury can, with reasonable certainty, determine the amount of those expenses." Id. (citing Loftin, 67 So. 2d at 188). The plaintiff has the burden to prove that future medical expenses are reasonably certain to be incurred. See Fasani, 43 So. 3d at 812 (citing Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 552, 556 (Fla. 3d DCA 2000)). "A mere possibility that certain treatment might be obtained in the future cannot form the basis of an award of future medical expenses." Id. (citing Truelove, 954 So. 2d at 1288). Testimony about future medical expenses based only upon possibilities or speculation is insufficient to establish that the plaintiff is reasonably certain to incur such expenses. See, e.g., DeGrandchamp, 102 So. 3d at 686-87 (concluding that the plaintiff failed to establish that future medical expenses were reasonably certain to be incurred where (1) the first physician testified that if a patient continued to have symptoms like the plaintiff had, the physician would "probably consider" performing a certain procedure that would "hopefully" leave the patient satisfied while acknowledging that some patients have to come back for further treatment; and (2) where the second physician referred to the plaintiff's need for future treatment as "probably" including injections and "possibly" surgery); Volusia County v. Joynt, 179 So. 3d 448, 453 (Fla. 8 5th DCA 2015) (holding that the evidence was insufficient to prove that the plaintiff was reasonably certain to incur certain future medical expenses where an expert testified that it "would not surprise [him]" if the plaintiff had to have further surgery, where another expert opined that the plaintiff "may" need a hearing aid in the future, where a third expert opined that it was the plaintiff's choice as to whether to get a hearing aid, and where the plaintiff testified she would prefer not to get a hearing aid and she was trying to avoid further surgery as much as possible (alteration in original)); Fasani, 43 So. 3d at 813 (holding that the plaintiff failed to prove that he was reasonably certain to incur future medical expenses where a physician testified that he "would strongly recommend" neurological testing and a "possible" psychiatric evaluation and where another physician opined that the plaintiff would require "further care" generally and that he "should seek psychological counseling"). Here, Progressive concedes that there was competent, substantial evidence that Reinberger is reasonably certain to incur future medical expenses of $17,850 related to medication. However, Progressive contends that the testimony relating to the other treatments was based on possibilities and speculation. We agree. Dr. Smith's testimony was replete with the words "may," "could," and "if." The fact that Dr. Smith agreed that all of the proposed treatments in the life care plan were included with a reasonable degree of medical certainty is not dispositive. Something that is based on a possibility cannot be reasonably certain to occur. Cf. Chaudhry v. Adventist Health Sys. Sunbelt, Inc., 305 So. 3d 809, 818 (Fla. 5th DCA 2020) (explaining that an expert's opinion "based on facts or inferences not supported by the evidence . . . ha[ve] no evidentia[ry] value," that "the basis for a conclusion cannot be deduced 9 or inferred from the conclusion itself," and that an expert's opinion "cannot constitute proof of the existence of the facts necessary to the support of the opinion" (first alteration on original) (quoting Arkin Constr. Co. v. Simpkins, 99 So. 2d 557, 561 (Fla. 1957))). Further, the physician's assistant testified that it was unlikely that Reinberger would undergo some of the treatments and that he planned to treat her solely with medication. Reinberger herself testified that she was not currently willing to undergo the RFA and that she did not plan on having any more injections or having physical therapy. Under these facts, we conclude that there is no evidentiary basis to support the portion of the jury award related to future medical expenses, except those related to medication. Accordingly, the trial court erred, in part, by denying Progressive's motion for directed verdict. Thus we reverse the jury's award for the claims for future medical expenses, except those related to medication, and we remand to the trial court with instructions to strike the same from the final judgment. See Joynt, 179 So. 3d at 454; Fasani, 43 So. 3d at 813. We note that Progressive requests that we also reverse the damage award as it pertains to noneconomic damages. We decline that request. The two cases relied on by Progressive to support this argument involved jury awards that did not include any noneconomic damages, despite the fact that the evidence was undisputed that the plaintiffs had experienced and would continue to experience pain and suffering as a result of the accidents involved in those cases. Cf. Parrish v. City of Orlando, 53 So. 3d 1199, 1201 (Fla. 5th DCA 2011); Garrett v. Miami Transfer Co., 964 So. 2d 286, 287-88 (Fla. 4th DCA 2007). The courts in those cases reversed for a new trial on damages. Parrish, 53 So. 3d at 1200, 1203; Garrett, 964 So. 2d at 287, 292. 10 Here, however, the jury awarded future noneconomic damages. Progressive asserts that Reinberger's counsel argued to the jury that it could take the amount awarded for economic damages—including future medical expenses—and multiply that by a certain number to reach the amount of noneconomic damages. We acknowledge that such an argument was made. However, Reinberger's counsel listed that method as one of three possible ways to reach an award of noneconomic damages. Notably, Reinberger's counsel focused on the last method: addressing how a plaintiff lives his or her life in twenty-four-hour spans. He noted that Reinberger testified about her insomnia, and he argued that that "really means it's 24 hours in a day" and that "[s]he doesn't get a break from the pain that other people do when they get a chance to sleep." He then argued that the jury could set a dollar amount for each hour of the day and multiply that amount by the number of hours since the accident through the remainder of Reinberger's life expectancy. Reinberger's counsel continued by arguing that "[t]ime is the most precious and nonreplaceable commodity in this universe" and, over objection, that as an attorney in the case, he "want[ed] to make sure that time that is gone is time given back." He further argued that "[t]he only recourse the law allows is monetary compensation." Reinberger's counsel continued to make arguments related to how Reinberger lost time with friends, her independence, and her ability to care for herself in various ways. He ultimately told the jury that the life Reinberger "led before this crash is not the same life she told the jury that she lives now." It is quite clear from the transcript then that Reinberger's counsel's primary argument was that future noneconomic damages should be based on the loss of time suffered by Reinberger as well as all the life changes she had to make. The jury ultimately awarded Reinberger 11 $1,190,000 for future noneconomic damages. Based on the record before us, we are not convinced that a new trial on noneconomic damages is warranted. Thus in all other respects, the final judgment is affirmed. Affirmed in part, reversed in part, and remanded with instructions. LABRIT, J., Concurs. ATKINSON, J., Concurs in part and dissents in part with opinion. ATKINSON, Judge, Concurring in part and dissenting in part. Because "no proper view of the evidence could sustain a verdict in favor of" Reinberger regarding future medical expenses, I agree with the majority that the trial court erred by denying Progressive's motion for directed verdict as it pertained to future medical expenses. See R.J. Reynolds Tobacco Co. v. Giambalvo, 386 So. 3d 251, 254 (Fla. 2d DCA 2024) (quoting R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 536, 538 (Fla. 1st DCA 2018)). I concur fully with the majority opinion as it pertains to the denial of the motion for directed verdict as to future medical expenses. However, because the majority entertains an argument regarding noneconomic damages not presented by Progressive in its briefing, I concur in result only—for reasons other than those enunciated by the majority—in the majority opinion to the extent it declines to reverse and remand for a new trial on noneconomic damages. Without substantive discussion, the majority granted no appellate relief to Progressive regarding its appeal of the trial court's admission of expert testimony on behalf of Reinberger and its exclusion of expert 12 testimony on behalf of Progressive. Because I conclude that two of Progressive's arguments had merit, I respectfully disagree. The trial court erred by admitting the testimony of Reinberger's life care planner expert, Dr. Kevin Smith. Cf. Anderson-Moody v. Wilson, 357 So. 3d 1240, 1243 (Fla. 1st DCA 2023) ("Nothing in the record indicates that life care plan experts typically use their experience as a physician to determine the future medical care needs of plaintiffs. Rather, life care planners rely on admissible evidence from medical experts or treating physician[s] when creating the life care plan. The opinions of Dr. Ahmadian, as a life care planner, regarding future epidural steroid injections and facet joint injections lacked a factual basis because they were not recommended by one of Appellee's treating physicians or another disclosed medical expert."). As such, I respectfully dissent from the majority opinion to the extent it concludes the testimony was properly admitted. The trial court also erred by excluding expert testimony regarding "plopping" (and the like): "Again, 'plopping.' It's out." Progressive sought to introduce this "equivalent forces" testimony through its expert, Dr. Stephen Rundell, who was prepared to apply his testimony regarding the "compressive force" likely experienced in the automobile accident—which the trial court admitted—to forces associated with common "non- injurious" experiences such as "plopping in a chair or doing a jumping jack" according to a methodology the expert explained was supported by published, peer reviewed studies. See Young v. Panera, LLC, No. 22-CV- 2894, 2024 WL 3638014, at *2 (M.D. Fla. Aug. 1, 2024) ("[T]he case cited by Plaintiffs, Worley [v. State Farm Mutual Automobile Insurance Co., No. 12–cv–1041, 2013 WL 6478425 (M.D. Fla. Dec. 10, 2013)], is distinguishable . . . . In Worley, the court noted the defendant's expert's 13 testimony was based solely on the Allen 1994 study. . . . The circumstances here are different. Defendant summarizes several additional studies upon which Dr. Xiao relies that were published within the last 10 years and show that comparisons of forces in motor vehicle collisions and those in daily activities are generally accepted in the scientific community. . . . Dr. Xiao is permitted to testify regarding his comparisons of the mechanical loads Plaintiffs would have experienced to those experienced when engaging in activities such as running, jumping, plopping in a chair, and picking up an object." (citation omitted)). Consequently, I respectfully dissent from the majority opinion insofar as it concludes that the testimony was properly excluded. Opinion subject to revision prior to official publication. 14