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Defense Digest

District Court of Appeals Tell Plaintiffs They ‘Can’t Have Their Cake and Eat It Too’

Defense Digest, Vol. 31, No. 1, March 2025

March 1, 2025

By Jacksonville, Florida Casualty Department


Key Points:

  • In Mickler v. Triplett, 397 So.3d 188 (Fla. 5th DCA Nov. 15, 2024), the Court of Appeal thwarted a new strategy from the plaintiffs’ bar to remove the causation question from the hands of the jury. 
  • Ruling helps shield defendants from having to sacrifice their expert witnesses in order to preserve the causation question for a jury.

The question of causation is often the crux of personal injury litigation, particularly in cases involving pre-existing conditions. In Rebecca Diley v. Bonnie Lee Mickler, a 2023 trial in the Circuit Court of the Fourth Judicial Circuit in Duval County, Florida, the defense confronted this challenge head-on. The plaintiff, Rebecca Triplett, alleged injuries from a 2019 rear-end motor vehicle accident, yet her medical history revealed strikingly similar injuries from prior accidents in 2009 and 2017. The defense argued that her injuries predated the 2019 accident and, furthermore, that she suffered no new harm. However, an unexpected trial ruling significantly altered the trajectory of the case—removing the issue of causation from jury consideration and leading to a substantial plaintiff’s verdict. This decision ultimately set the stage for an appellate battle, culminating in a Florida Fifth District Court of Appeal ruling that reaffirmed the jury’s role in determining causation and reshaped defense strategy in bodily injury cases statewide.

In 2020, Rebecca Triplett sued the defendant, claiming injuries arising from a rear-end motor vehicle accident occurring on September 6, 2019. Notably, the injuries being claimed as arising from this accident were similar to injuries Triplett suffered in two prior motor vehicle accidents—one in 2009 and the other in 2017. One of the defenses focused on these prior injuries. The defendant contended, at least in part, that Triplett’s alleged injuries pre-existed the September 6, 2019, motor vehicle accident. Additionally, going one step further, the defendant argued Triplett did not suffer any injuries as a result of the 2019 accident. 

Through years of litigation and discovery, the defendant refined the key issues for trial. Specifically, one of the primary issues that remained to be litigated was whether the defendant’s negligence, if any, was a legal cause of loss, injury, or damage to Triplett.

The trial lasted a full week, including substantial testimony from the plaintiff, retained experts, and treating physicians. On Thursday, April 20, 2023, Triplett’s counsel moved for directed verdict as to causation. The plaintiff argued, since the defendant’s own expert witnesses testified that Triplett suffered and was treated for a strain or sprain of her neck as a result of the motor vehicle accident, the defendant’s negligence was the legal cause of at least some damage to the plaintiff. 

On the final day of trial, although initially denied, the court ultimately granted the partial directed verdict. This decision had an immense prejudicial effect on the defense. 

Typically, and prior to the court granting Triplett’s motion in this case, the first question on the verdict form is some version of, “Was the negligence of the defendant, a legal cause of loss, injury or damage to plaintiff?” This initial question posed to a jury precedes any additional questions regarding the amount of monetary damages the plaintiff may be entitled to as a result of such negligence. 

By granting the plaintiff’s motion, the court removed the issue of causation from the jury instructions and that initial question from the verdict form. As a result, the jury was simply asked to essentially answer “how much” money Triplett was entitled to. The jury subsequently returned a large verdict, arguably, in part, due to the court’s decision to remove the issue of causation from the jury. 

The defense moved for a new trial as a result, which the court denied, and the issue was taken up to Florida’s Fifth District Court of Appeal. 

In Mickler v. Triplett, 397 So.3d 188 (Fla. 5th DCA Nov. 15, 2024), a big win for defense counsel, the Fifth District Court of Appeal concluded the trial court erred in granting a directed verdict, and the case was reversed and remanded for a new trial. This ruling, and the growing trend of other Florida district courts following suit, thwarted this new plaintiffs’ strategy to remove the causation question from the hands of the jury. 

In Lancheros v. Burke, 375 So. 3d 927 (Fla. 6th DCA 2023), a case with similar facts, the trial court granted the plaintiff’s motion for a directed verdict on causation, stating: “[a] jury is not free to reject uncontradicted expert findings by multiple doctors. And because [Appellants’ expert] said, yes, the chiropractic care was reasonable and necessary and related to the accident, then that establishes legal cause.” Id., 375 So.3d at 928. The defense in Lancheros contested causation, refuted the plaintiff’s causation evidence, and offered their own evidence showing the plaintiff’s injuries could have occurred for reasons not related to the incident at issue in the case. In Lancheros, the Sixth District Court of Appeal reversed the directed verdict, siding with the defense. 

Prior to the appellate decisions, not only did these trial court rulings jeopardize the defense’s legal strategy, but the retained experts were becoming increasingly concerned with potential credibility issues. In many motor vehicle accident cases, expert witnesses testify a plaintiff only suffered a sprain or strain, which would require approximately six to eight weeks of conservative treatment. This testimony, while denying the existence of a permanent injury, allowed defense experts to strike a middle ground in explaining a plaintiff’s initial pain complaints experienced after an accident. 

However, these trial court rulings forced the defendants to sacrifice their expert witnesses in order to preserve the causation question for a jury, even if it resulted in an uphill (if not near impossible) battle; to argue causation without expert witness testimony. 

Thankfully, these recent Florida Appellate Court decisions on this topic shield defendants who were being boxed into an impossible corner. Defendants will no longer have to decide whether to forgo a causation defense at trial when their experts testify that a plaintiff suffered a sprain or strain. 


 

Defense Digest, Vol. 31, No. 1, March 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.