DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CARLO G. CHIARELLA,

Appellant,

v.

ROBERTA A. FORD,

Appellee.

No. 4D2022-2874

[February 21, 2024]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; G. Joseph Curley, Judge; L.T. Case No. 502019CA012452. 

Philip M. Burlington and Jeffrey V. Mansell of Burlington & 

Rockenbach, P.A., West Palm Beach, and Casey D. Shomo of Casey D. 

Shomo, P.A., Palm Beach Gardens, for appellant.

Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, and Kevin D. Franz 

of Boyd & Jenerette, P.A., Boca Raton, for appellee.

GROSS, J.

Carlo Chiarella, the plaintiff below, appeals a final judgment awarding 

him $140,000 from the defendant, Roberta Ford, in this automobile 

negligence case. We write to address one issue—the plaintiff’s contention 

that the jury verdict was inconsistent because it awarded him the expenses 

of one spinal fusion surgery but found no permanent injury. We hold that 

the plaintiff failed to preserve the issue for appellate review because he did 

not request that the verdict be resubmitted to the jury.

The Lawsuit 

The plaintiff sued the defendant for personal injuries arising out of an 

auto accident. The defendant admitted fault, but disputed (1) the cause 

of the plaintiff’s injuries, (2) the permanency of the plaintiff’s injuries, and 

(3) the damages sustained by the plaintiff. 
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The Accident

In July 2017, the plaintiff’s BMW was rear-ended by the defendant’s 

Tesla. The impact pushed the BMW into another vehicle. The plaintiff 

described the impact as “pretty hard,” explaining that the airbag deployed, 

he suffered abrasions and felt like he was “punched in the face.” The BMW 

was deemed a total loss.

The Plaintiff’s Pre-Accident Medical History

The plaintiff sustained several injuries at the gym between 2006 and 

2012 from doing bench press or squats, causing neck and lower back pain 

for which he sought treatment with chiropractors. The plaintiff also had 

a bicycle accident in 2014, resulting in a visit to the ER where he 

underwent a cervical x-ray and sought treatment for a neck sprain and a 

back sprain. The cervical x-ray showed retrolisthesis, an abnormal 

finding, but there was never any recommendation from a healthcare 

provider to get an MRI or follow up with a spine surgeon.

Beginning in March 2015, the plaintiff was treated by a chiropractor for 

back and neck issues, including radiating leg pain and neck pressure. 

Despite not disclosing his bicycle accident or cervical x-ray to the 

chiropractor, the plaintiff mentioned numbness on his intake form, which 

could have signified disc involvement. The chiropractor observed the 

plaintiff’s limited lumbar motion and frequent pain, which impacted his 

daily activities. The plaintiff did not follow the chiropractor’s two-week 

treatment plan. 

In November 2015, a different chiropractor treated the plaintiff for 

chronic lower back pain and sciatica dating from 2009, but the plaintiff 

did not complete the prescribed chiropractic plan. The plaintiff received 

more chiropractic treatment for back pain in 2016. The plaintiff also saw 

a chiropractor for a neck strain sustained at the gym about three months 

before the 2017 auto accident.

The Plaintiff’s Post-Accident Medical Treatment

The plaintiff was treated at an emergency room on the day of the 

accident. Ten days later, he began seeing Dr. Chung, an orthopedic 

surgeon.

After undergoing MRIs in July 2017, the plaintiff was diagnosed with 

bulges, tears, and herniations on the cervical and lumbar spines. The 

findings were abnormal for a 35-year old. However, the 2017 MRIs did not 
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reveal acute compression of the cervical spine. The plaintiff initially 

underwent conservative treatments, including anti-inflammatory 

medication, steroid injections, and physical therapy. Dr. Chung testified 

that the plaintiff had an 80-90% improvement in the neck as of December 

2017. 

During this time, the plaintiff underwent physical therapy at a clinic 

owned by a chiropractor who employs physical therapists on his staff. The

plaintiff stopped treatment there in February 2018, when he described his 

cervical and lumbar pain as “worst two, best zero, current one.” In 

September 2018, the plaintiff resumed treating with the chiropractor’s 

office upon noticing increased symptoms after starting a new restaurant 

business.

The plaintiff resumed seeing Dr. Chung in October 2018 due to the 

flare-up of his neck and back pain. In March 2019, the plaintiff underwent 

MRIs which showed increased spinal abnormalities, with his worst 

pathology in the cervical spine, so Dr. Chung recommended that he 

undergo neck surgery. Dr. Chung testified that worsening MRI findings 

can be due to either an intervening trauma or the progression of the initial 

injury.

In April 2019, the plaintiff went to the ER after turning his neck at work 

and experiencing a lot of pain. The plaintiff gave a history in which he 

reported that “he had neck pain for the past two years status post his [auto 

accident]; and he just turned his neck, and he had an acute worsening.”

Dr. Chung opined that the plaintiff “simply turning his neck” was not an 

intervening trauma, adding that he had already recommended neck 

surgery to the plaintiff before the incident.

In June 2019, the plaintiff underwent cervical fusion surgery performed 

by Dr. Chung. Dr. Chung acknowledged that no lumbar complaints were 

documented at that time. By December 2019, the plaintiff’s radicular pain 

had resolved but he continued to have posterior neck discomfort.

Subsequently, due to intermittent flare-ups of pain in his lower back, 

the plaintiff was referred for an updated lumbar MRI in February 2021, 

and he underwent lumbar fusion surgery performed by Dr. Chung in 

March 2021.

At trial, the plaintiff introduced a medical bill index reflecting a total of 

nearly $350,000 in past medical expenses, including about $76,000 for 

conservative care. The remainder of the bills related to surgical care.
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The plaintiff testified that he still had neck and back pain after his 

surgeries. Dr. Chung recommended future care including physical 

therapy, medication, injections, MRIs, and potential future neck surgery. 

At trial, the plaintiff presented evidence that his future medical expenses, 

reduced to present value, would total over $1.1 million.

Competing Opinions on Causation and Permanency

Dr. Chung testified that all the plaintiff’s post-accident injuries and 

treatment, including both surgeries, were caused by the July 2017 auto 

accident. Dr. Chung said that the plaintiff sustained permanent injuries 

from his treatment and from the car accident. Dr. Chung explained that 

“a fusion by definition will limit [his] range of motion,” and that “there’s 

been a permanent change to his spine.” Applying American Medical 

Association guidelines, Dr. Chung gave the plaintiff a 9% impairment 

rating for his neck, plus a 9% impairment rating for his back.

The defendant’s only witness, an orthopedic spine surgeon, testified 

that: (1) the plaintiff had neck and back problems prior to the July 2017 

auto accident; (2) the plaintiff suffered a sprain/strain of the neck and 

back as a result of the auto accident; (3) the plaintiff did not suffer a 

permanent injury to his cervical or lumbar spine resulting from the auto 

accident; (4) the plaintiff’s need for surgery was not related to the auto 

accident; and (5) six-to-eight weeks of chiropractic care or physical therapy 

was reasonable. However, he conceded on cross-examination that if the 

jury believed the neck surgery was related to the crash, “[t]he surgery in 

and of itself would be considered a permanent injury” because the plaintiff 

has “had a permanent change of the way his neck works, with permanent 

implants put in his neck.”

The Verdict and Post-Verdict Motions

The jury found that the defendant’s negligence was a legal cause of 

damage to the plaintiff, awarded the plaintiff $150,000 for past medical 

expenses, awarded nothing for future medical expenses, and found that 

the plaintiff did not sustain a permanent injury. 

Immediately after the clerk published the verdict, the plaintiff’s counsel

objected that the verdict was inconsistent without a finding of permanency 

because the jury’s award of $150,000 necessarily included “some degree 

of invasive care, potentially surgery.” He argued that if the jury 

“considered a surgery” as part of the damages, then “it is a permanent 

injury.” He contended that the jury was not free to disregard 

uncontroverted testimony and speculate outside of the record. 
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By contrast, defense counsel maintained that the verdict was in the 

proper form, arguing that the jury was free to disregard certain testimony 

and that the jury could award past medical expenses without finding a 

permanent injury.

The plaintiff’s counsel said he was “simply bringing it to Your Honor’s 

attention, because I don’t see how they get to that number without having 

considered something that by evidence . . . would involve them having to 

next find a permanent injury.” 

The plaintiff’s counsel did not specifically ask the trial court to 

reinstruct the jury or send the case back for further deliberations. 

The trial court then ruled that it would not “overturn [the verdict] or 

suggest that the jury should go back and deliberate.”

After the verdict, the plaintiff moved for a new trial, arguing, among 

other things, that the verdict was inconsistent. The trial court granted a 

hearing on whether the verdict was inconsistent, but denied the motion 

for new trial on the other grounds raised.

Following the hearing, the trial judge entered a detailed order denying 

the motion for new trial on the ground of an inconsistent verdict. The 

court entered final judgment for the plaintiff for $140,000 after accounting 

for setoffs.

The Plaintiff Failed to Preserve the Issue of the Inconsistency of 

the Verdict

“To preserve the issue of an inconsistent verdict, the party claiming 

inconsistency must raise the issue before the jury is discharged and ask 

the trial court to reinstruct the jury and send it back for further 

deliberations.” Coba v. Tricam Indus., Inc., 164 So. 3d 637, 644 (Fla. 2015) 

(emphasis added) (internal quotation marks omitted). One of the reasons 

for this rule of preservation is to prevent the complaining party from 

strategically avoiding the risk of “having the award unfavorably adjusted.” 

Id. An objection alone is insufficient because Florida law requires that 

there be a specific request to resubmit the matter to the jury. See Barreto 

v. Wray, 40 So. 3d 779, 779 (Fla. 3d DCA 2010) (observing that “[i]n the 

case before us, although the Barretos’ counsel did tell the judge at sidebar 

that he ‘thought’ the amended verdict was inconsistent, Florida law 

requires that there be a specific request to resubmit the matter to the 

jury”); Adoro Mktg. v. Da Silva, 623 So. 2d 542, 543 (Fla. 3d DCA 1993) 
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(holding that “[d]efense counsel, having not requested the jury be 

permitted to reconsider its verdict in light of the inconsistency, cannot now 

seek reversal on that basis,” where defense counsel had immediately 

“argued that the jury’s verdict was inconsistent” and had sought a 

judgment directed in the defendants’ favor but did not “ask the trial judge 

to permit reconsideration by the jury, still sequestered”).

In recent cases, the Florida Supreme Court has emphasized that it is 

not enough to generally talk about an objection; to preserve an issue for 

appeal, a litigant must assert the “clear and specific” objection required by 

the law. For example, in State v. Pacchiana, 289 So. 3d 857, 859 (Fla. 

2020), the defendant objected to the state’s exercise of a peremptory 

challenge and asked for a “race neutral reason.” The prosecutor 

responded that the potential juror was “a Jehovah Witness.” Id. The 

defense attorney pointed out that “[t]hat’s a religious based strike.” Id. 

The trial court overruled the defense objection to the state’s exercise of the 

peremptory challenge. Id. at 860.

After this court considered the merits of the defendant’s challenge, the 

case reached the Florida Supreme Court, which held that the objection 

based on the juror’s religion had not been properly preserved:

[A]t the time the strike was exercised, Pacchiana did not 

articulate an objection that the State was exercising its 

peremptory challenge to unconstitutionally exclude Jehovah’s 

Witnesses from the jury. Thus, no objection to the strike as 

being a constitutionally impermissible religion-based strike 

was contemporaneously preserved in the trial court. 

Counsel’s comment, “[t]hat’s a religious based strike” was not 

itself a clear and specific legal objection to the constitutionality 

of the strike based on religion . . . .

Id. at 861–62 (emphasis supplied); see also Ellison v. Willoughby, 373 So. 

3d 1117, 1120 (Fla. 2023) (stating that “faithful enforcement of this 

preservation rule promotes accuracy, efficiency, and fairness in 

adjudication”).

Here, the issue of an inconsistent verdict was unpreserved because the 

plaintiff’s counsel did not ask the trial court to reinstruct the jury and send 

the matter back for further deliberations. Before the jury was discharged, 

the plaintiff’s counsel argued the inconsistency of the verdict at length. 

But, in the last sentence of his argument, the plaintiff’s counsel stated that 

he was “simply bringing it to Your Honor’s attention[.]” The plaintiff’s 

counsel never made a specific request to send the matter back to the jury 
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for reconsideration; he never made it clear on the record that he was willing 

to request further deliberations and risk having the jury’s award even more 

unfavorably adjusted. After plaintiff’s counsel concluded his argument, 

the trial judge’s sua sponte statement that he would not “suggest that the 

jury should go back and deliberate” did not relieve the plaintiff from 

actually requesting that relief in order to preserve the issue for appeal.

We have considered the other points raised and conclude that there 

was no reversible error.

KLINGENSMITH, C.J., and CONNER, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.