Preview
Sparks-Book v. Sports Authority, Inc., 699 So.2d 767 (1997)
22 Fla. L. Weekly D2069
KeyCite Yellow Flag - Negative Treatment
Distinguished by Plana v. Sainz, Fla.App. 3 Dist., June 18, 2008
699 So.2d 767
District Court of Appeal of Florida,
Third District.
Lila SPARKS—BOOK and Edward A.
Book, Jr., her husband, Appellants,
ve
The SPORTS AUTHORITY, INC., Appellee.
No. 96-2491.
|
Sept. 3, 1997.
|
Rehearing Denied Oct. 15, 1997.
Synopsis
Customer and her spouse sued owner of sporting goods
store to recover for injuries allegedly sustained when
camping stove was accidentally knocked onto customer's
head. After owner admitted liability, jury in the Circuit
Court, Dade County, Gisela Cardonne, J., returned
verdict for owner on damages issue, based on finding that
owner's negligence was not legal cause of any injuries.
Plaintiffs appealed. The District Court of Appeal, Nesbitt,
J., held that plaintiffs were entitled, at a minimum,
to recover medical expenses for any diagnostic testing
reasonably necessary to determine whether accident
caused injuries.
Reversed and remanded.
West Headnotes (2)
it] Damages
Medical Treatment and Care of Person
Injured
Customer who was struck on head by camping
stove accidentally knocked off shelf by store
employee was entitled, at a minimum, at
trial on damages after store owner admitted
liability, to recover medical expenses for any
diagnostic testing reasonably necessary to
determine whether injuries were caused by
accident, even though jury determined that
accident did not cause injuries.
8 Cases that cite this headnote
[2] Damages
& Necessity of Proof as to Damages in
General
Customer who sued store owner for injuries
allegedly sustained when camping stove was
knocked off shelf by employee and landed on
customer's head was still required to prove
some connexity between damages claimed and
owner's tortious conduct, even though owner
admitted liability.
Cases that cite this headnote
Attorneys and Law Firms
*768 Robert C. Maland, Miami; Dorothy F. Easley,
Coral Gables, for appellants.
Fertig and Gramling and Frank L. Gramling, and
Darlene M. Lidondici and Elizabeth J. Gregovits, Fort
Lauderdale, for appellee.
Before NESBITT, LEVY and GODERICH, JJ.
Opinion
NESBITT, Judge.
Plaintiffs-appellants appeal an adverse final judgment and
the lower court's denial of their motion for a new trial. We
reverse.
Lila Sparks—Book was shopping with her husband at The
Sports Authority on August 23, 1992. There, a camping
stove was accidentally knocked off a shelf by an employee
and it landed on Sparks—Book's head. She filed suit, along
with her husband who filed a loss of consortium claim.
The Sports Authority admitted liability but contested
damages.
The main issue at trial was the extent to which Sparks—
Book's physical ailments were attributable to the accident
at The Sports Authority. At the end of the trial, the jury
answered “No” to the question: “Was the negligence on
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22 Fla. L. Weekly 02069
the part of Defendant, The Sports Authority, Inc. the
legal cause of any loss, injury or damage to Plaintiff Lila
Sparks~Book?” That finding ended the case, and the trial
court entered final judgment in The Sports Authority's
favor. The trial court later denied the plaintiffs' motion for
a new trial which contended, in short, that the verdict was
against the manifest weight of the evidence.
[1] Ata minimum, the plaintiff was entitled to recover for
those medical expenses incurred for any diagnostic testing
which was reasonably necessary to determine whether the
accident caused her injuries. See Blanford v. Polk County,
410 So.2d 667, 669 (Fla. 2d DCA 1982); see also Noralyn
O. Harlow, Annotation, Recoverability from tortfeasor
Footnotes
of cost of diagnostic examinations absent proof of actual
bodily injury, 46 A.L.R.4th 1151 (1986). It is undisputed
that paramedics were called to the scene of the accident
and that Sparks—Book was transported to an emergency
toom. There, x-rays were taken of Sparks—Book's jaw,
shoulder, and neck.
12)
on the question of the plaintiffs' damages. t
Consequently, we reverse and remand for a new trial
All Citations
699 So.2d 767, 22 Fla. L. Weekly D2069
1 With respect to the plaintiffs’ contention that the first question on the verdict form was inconsistent with the defendant's.
admission of liability, we refer the parties to Rucker v. Garlock, Inc., 672 So.2d 100 (Fla. 3d DCA 1996). There, in a
trial solely on damages we held: “[E]ven with causation not at issue, plaintiff was still obligated to prove some connexity
between the damages claimed and the [defendant's tortious conduct].” /d. at 102.
End of Document
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-S. Government Works. 2
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36 Fla. L. Weekly D1673
* "KeyCite Yellow Flag - Negative Treatment
Declined to Extend by State Farm Mutual Automobile Insurance
Company v. Ferranti, Fla.App. 5 Dist., September 28, 2018
119 So.gd 1284
District Court of Appeal of Florida,
Fourth District.
(2)
Vicky PACK, Appellant,
v.
GEICO GENERAL INSURANCE
COMPANY, Appellee.
No. 4D12-3146.
|
Sept. 4, 2013.
‘Synopsis
Background: Insured brought action against insurer to
recover uninsured-motorist (UM) benefits. Following
a jury trial, the Circuit Court, Seventeenth Judicial
Circuit, Broward County, John J. Murphy, III, J., entered
judgment awarding no damages. Insured appealed.
BI
Holdings: The District Court of Appeal held that:
(1] jury verdict awarding no damages to insured was
against manifest weight of the evidence, but
[2] evidence pertaining to a letter of protection between
a plaintiff and her treating physician, when that treating
physician testifies as an expert on the plaintiff's behalf in
a personal-injury action, is relevant to show potential bias
of the treating physician.
Reversed and remanded.
West Headnotes (6) [4]
{1 Damages
€ Medical treatment and care of person
injured
Generally, a plaintiff in a personal-injury
action may recover the medical expenses
for diagnostic testing which were reasonably
necessary to determine whether the accident
caused her injuries; this is true whether or not
the jury finds the accident to be the legal cause
of the injury.
2 Cases that cite this headnote
Damages
> Expenses
Evidence
Conflict with other evidence
Factors that can allow a jury in a personal-
injury action to award a zero verdict
regardless of any medical expenses incurred
include pre-existing injuries with extensive
treatments, lack of candor with treating
physicians, videotapes that show actual
physical capabilities, and expert medical
opinions which conflict as to causation.
1 Cases that cite this headnote
Damages
& Expenses
Evidence
@ Damages
Jury verdict awarding no damages to insured
was against manifest weight of the evidence
in action to recover uninsured-motorist (UM)
benefits; insured's and insurer's experts agreed
that insured suffered at least neck sprain as
result of automobile accident, there was no
evidence that insured's prior neck injuries
required extensive treatments, and there were
no videotapes depicting insured’s physical
capabilities.
Cases that cite this headnote
Appeal and Error
$= Inadequate Award;Additur
Test to be applied in determining the adequacy
of a verdict is whether a jury of reasonable
persons could have returned that verdict.
Cases that cite this headnote
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38 Fla. L. Weekly D1873
IS] Evidence
& Contradiction and impeachment
Evidence pertaining to a letter of protection
between a plaintiff and her treating physician,
when that treating physician testifies as an
expert on the plaintiff's behalf in a personal-
injury action, is relevant to show potential
bias of the treating physician. West's F.S.A. §
90.608(2).
1 Cases that cite this headnote
[6] New Trial
© Verdict in general
That first interrogatory on jury verdict form
used “damage” rather than “injury” did
not warrant new trial on issue of liability
in insured's action to recover uninsured-
motorist (UM) benefits; although insured
claimed that jury may have answered “yes”
to interrogatory because insured's automobile
was damaged, nothing in jury instructions
or closing arguments would have suggested
to jury that physical damage to automobile
was issue to be decided by jury, and jury
expressly determined that insured did not
suffer permanent injury.
Cases that cite this headnote
Attorneys and Law Firms
*1285 Julie H. Littky-Rubin of Clark, Fountain, La
Vista, Prather, Keen & Littky-Rubin, LLP, West Palm
Beach, for appellant.
Angela C. Flowers of Kubicki Draper, Ocala, for appellee.
Opinion
PER CURIAM.
Vicky Pack sued Geico General Insurance Company
(“Geico”) for injuries suffered following a car collision
with an uninsured motorist. The evidence was undisputed
that Pack suffered at least a neck sprain as a result of the
accident and had medical expenses related to the diagnosis
of the sprain. The jury returned a verdict for zero damages.
Pack appeals the trial court's denial of her motion for
new trial. We reverse, holding that under the facts of
this case, Pack was entitled to the reasonable medical
expenses incurred for diagnostic testing, and the failure to
award any damages rendered the verdict both against the
manifest weight of the evidence and inadequate.
*1286 Pack also contends that she is entitled to a
new trial because the trial court denied her motion in
limine and permitted the defense to introduce a letter
of protection between her and her treating physician
who testified as her expert witness on her claim of more
serious injuries to her neck. Under Section 90.608(2),
Florida Statutes (2009), any party may impeach a witness's
credibility by showing that the witness is biased. We affirm
the lower court's ruling because a letter of protection
between a plaintiff and a treating physician is relevant to
show potential bias.
Factual Background
Pack was involved in a multi-car accident with an
uninsured driver. She had an uninsured motorist policy
through Geico. At trial, Geico admitted the negligence of
the driver; therefore the issue for the jury was whether
that negligence was the legal cause of the loss, injury, or
damage sustained by Pack.
Pack's medical expert, Dr. Gieseke, is a neurosurgeon
who examined Pack upon a referral from the emergency
room doctor. Treatment commenced under a letter of
protection.
Each medical expert testifying at trial agreed that an injury
was caused by the accident. However, they differed as to
the severity of the injury. Dr. Gieseke explained that Pack
suffered a neck sprain from which he could feel a neck
spasm. He also diagnosed her with a fracture and disc
herniation. Geico's medical expert, Dr. Routman, stated
that the accident caused only a neck sprain.
Prior to the accident at issue, Pack was twice
hospitalized with complaints including neck pain. During
examinations after the accident, she did not reveal
either prior hospitalization to either Dr. Gieseke or
Dr. Routman. She testified that the neck pain on both
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Government Works. 2Pack v. Geico General Ins. Co., 119 So.3d 1284 (2013)
38 Fla. L. Weekly D1873
occasions was minor and incidental to other more severe
injuries.
The jury returned a verdict stating that the uninsured
driver's negligence was the legal cause of damage to Pack.
However, the jury awarded Pack zero damages for past
or future medical expenses and declared her injury non-
permanent. Pack moved for a new trial on the bases that
the verdict was both inadequate and against the manifest
weight of the evidence. The motion was denied. Pack now
appeals, claiming the trial court error erred by denying a
new trial and by allowing evidence of a letter of protection.
Analysis
I. Manifest Weight of the Evidence and Inadequate
Verdict
[1] Generally, a plaintiff may recover the medical
expenses for diagnostic testing which were reasonably
necessary to determine whether the accident caused her
injuries. Sparks-Book v. Sports Authority Inc., 699 So.2d
767, 768 (Fla. 34 DCA 1997). This is true whether or not
the jury finds the accident to be the legal cause of the
injury. Id.
[2] An exception to the general rule exists when certain
factors are met. In State, Department of Transportation
v, Rosario, 782 So.2d 927, 928 (Fla. 2d DCA 2001), the
court listed the factors that could allow a jury to award a
zero verdict regardless of any medical expenses incurred.
These factors include pre-existing injuries with extensive
treatments, lack of candor with treating physicians,
videotapes that show actual physical capabilities, and
expert medical opinions which conflict as to causation. Id.
The court upheld the zero verdict because the evidence
supported the fact the “jury could conclude that [the
plaintiff] suffered no damages as a result of the ...
accident.” Jd.
[3] In this case, there is no evidence that Pack's prior neck
injuries required *1287 extensive treatments. There were
no videotapes depicting her physical capabilities. Finally,
both the plaintiff and defense experts agreed that Pack
suffered at least a neck sprain as a result of the accident.
Therefore, the jury had no reasonable basis to conclude
that Pack suffered no injury asa result of the accident, and
the verdict was against the manifest weight of the evidence.
[4] Further, because Pack was awarded zero damages,
the verdict is inadequate as a matter of law. “The test
to be applied in determining the adequacy of a verdict
is whether a jury of reasonable [persons] could have
returned that verdict.” Griffis v. Hill, 230 So.2d 143,
145 (Fla.1969). Because the exception to the general
rule, requiring payment of diagnostic testing, does not
apply, Pack was entitled to at least the medical costs for
reasonable diagnostic testing.
I. Letter of Protection
[5] Any party may attack the credibility of a witness by
exposing a potential bias. § 90.608(2), Fla. Stat. (2009).
Evidence pertaining to a letter of protection between a
plaintiff and her treating physician, when that treating
physician testifies as an expert on the plaintiff's behalf, is
relevant to show potential bias. See Carnival v. Jimenez,
112 So.3d 513, 520 (Fla. 2d DCA 2013); see also Allstate
Inc. Co. v. Boecher, 733 So.2d 993, 997 (Fla.1999) (“A jury
is entitled to know the extent of the financial relationship
between the party and the witness....”).
Pack argues that evidence pertaining to a letter of
protection, absent a referral relationship from the lawyer
to the doctor, is not relevant according to this court's
prior ruling in Katzman v. Rediron Fabrication, Inc., 76
So.3d 1060 (Fla. 4th DCA 2011). In Katzman, this court
held that a letter of protection is not sufficient in itself
to allow discovery of an expert beyond that permissible
under Florida Rule of Civil Procedure 1.280(b)(4)(A).
This court stated that a referral froma lawyer to the expert
witness doctor injects the doctor into the litigation and
therefore the balance shifts in favor of allowing discovery.
Katzman, 76 So.3d at 1064. However, this court did not
state that a letter of protection is not relevant to show
potential bias.
Similarly, Steinger, Iscoe & Greene v. GEICO General
Insurance Co., 103 So.3d 200 (Fla. 4th DCA 2012) does
not state that letters of protection are irrelevant to show
Potential bias. In Steinger, this court held that discovery
of letters of protection was premature. Jd. At 206. Steinger
is distinguishable because, in that case, Geico sought
discovery of all letters of protection between the law
firm and four medical providers regardless of whether
the letters of protection pertained to the plaintiff in that
case. Jd. at 203. The purpose of discovering the letters
of protection in Steinger was to expose the extent of
the financial relationship between the law firm and the
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36 Fla, L. Weekly 01873
treating physicians. /d. at 205. This court held that because
the discovery went beyond that permissible under Florida
Rule of Civil Procedure 1.280(b)(5)(A), it was premature
absent a showing of a financially beneficial relationship
between the law firm and the doctors, including a referral
relationship. Jd. at 206.
Both Katzman and Steinger are inapposite to the instant
case because they pertain to discovery of financial
information beyond what is generally permissible under
Florida Rule of Civil Procedure 1.280. Neither case stands
for the proposition that evidence pertaining to a letter of
protection between a plaintiff and her treating physician
is not relevant to show a potential bias when that treating
physician testifies as the plaintiff's medical expert. *1288
Therefore, the trial court properly admitted the evidence
Footnotes
pertaining to the letter of protection because it was
relevant to show a potential bias.
16] Therefore, we reverse and remand for a new trial
on damages for Pack's undisputed, non-permanent neck
sprain, !
Reversed and remanded for further proceedings.
WARNER, CONNER, JJ., and LEVENSON,
JEFFREY, R., Associate Judge, concur.
All Citations
119 So.3d 1284, 38 Fla. L. Weekly D1873
1 Pack argues a new trial on liability is warranted because the first interrogatory on the verdict form used “damage” rather
than “injury,” thus the jury may have answered “yes” to the interrogatory because Pack's vehicle was damaged. We
disagree with Pack's argument. Nothing in the jury instructions or closing arguments would have suggested to the jury
that physical damage to Pack's vehicle was an issue to be decided by the jury. The jury expressly determined Pack did
not suffer a permanent injury. As to that issue, the jury's verdict was not against the manifest weight of the evidence.
End of Document
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35 Fla. L. Weekly D2157
46 So.3d 94
District Court of Appeal of Florida,
Third District.
ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY, Appellant,
v.
Juan M. FLORES, Appellee.
No. 3D09-2445.
|
Sept. 29, 2010.
Synopsis
Background: Insured brought action against his
underinsured motorist (UIM) carrier, seeking coverage
arising out of an automobile accident. After award of
summary judgment to insured as to liability, a jury
awarded insured no damages. The Circuit Court, Miami-
Dade County, Gisela Cardonne Ely, J., granted insured's
motion for new trial. Insurer appealed.
[Holding:] The District Court of Appeal, Rothenberg, J.,
held that trial court did not abuse its discretion by granting
insured a new trial.
Affirmed.
West Headnotes (3)
t) Appeal and Error
© Grant of new trial
When reviewing the order granting a new trial,
an appellate court must recognize the broad
discretionary authority of the trial judge and
apply the reasonableness test to determine
whether the trial judge committed an abuse of
discretion.
Cases that cite this headnote
[2] Appeal and Error
& Setting aside verdict;new trial
On appeal from the trial court's grant of a new
trial, the appellant faces a heavy burden, and
must establish that the trial court's abuse of
discretion is clear from the record.
Cases that cite this headnote
13] Damages
=> Expenses
New Trial
& Actions for personal injuries
Trial court did not abuse its discretion in
action by insured against his underinsured
motorist (UIM) carrier by granting insured
a new trial after jury awarded insured no
damages on his claim for UIM benefits,
even if there was evidence to support jury's
conclusion that insured’s injuries were not
caused by his automobile accident, where
there was no evidence that any of the
diagnostic tests performed on insured were
not reasonable or necessary to determine
whether the accident caused the injuries.
Cases that cite this headnote
Attorneys and Law Firms
*95 Kubicki Draper and Caryn L. Bellus, Miami, and
Wendi M. Weiner, for appellant.
Manuel Vega, Jr., Coral Gables; Ross & Girten and Lauri
Waldman Ross and Theresa Girten, Miami, for appellee.
Before RAMIREZ,
ROTHENBERG, JJ.
CJ., and COPE and
Opinion
ROTHENBERG, J.
The defendant, Allstate Property and Casualty Insurance
Company (“Allstate”), appeals from an order granting
the plaintiff, Juan M. Flores (“the plaintiff”), a new trial.
Finding no abuse of the trial court's discretion, we affirm.
In November 2006, the plaintiff's vehicle was struck from
behind while he was stopped at a Miami intersection.
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35 Fla. L. Weekly D2151
Nine days later, the plaintiff sought medical attention,
which included a series of diagnostic tests. Thereafter,
the plaintiff sued Allstate, his underinsured motorist
insurance carrier. The trial court entered summary
judgment in favor of the plaintiff on liability, and the
matter proceed to a jury trial on damages.
The jury determined that the accident was not a legal
cause of any injuries to the plaintiff and awarded zero
damages. The trial court granted the plaintiff's subsequent
motion for a new trial, finding that the jury verdict was
“contrary to the manifest weight of the evidence that
plaintiff required some reasonable diagnostic testing.”
This appeal followed.
2)
an appellate court must recognize the broad discretionary
authority of the trial judge and apply the reasonableness
test to determine whether the trial judge committed an
abuse of discretion.” Brown v. Estate of Stuckey, 749 So.2d
490, 497-98 (Fla.1999). In such a case, the appellant faces
a “heavy burden,” and must establish that the trial court's
abuse of discretion is “clear from the record.” Id. at 496;
see Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522
(Fla.1975) (holding that there must be a strong showing to
upset an order granting a new trial, a heavy burden rests
on those seeking to overturn such an order, and any abuse
of discretion must be patent from the record).
Footnotes
“When reviewing the order granting a new trial,
[3] In granting the plaintiff a new trial, the trial court
relied on Sparks-Book v. Sports Authority, Inc., 699 So.2d
767, 768 (Fla. 3d DCA 1997). In Sparks—Book, this Court
reversed an order denying the plaintiffs motion for a
new trial, holding that “[a]t a minimum, the plaintiff was
entitled to recover for those medical expenses incurred
for necessary diagnostic testing which [were] reasonably
necessary to determine whether the accident caused her
injuries.” Jd. Allstate correctly notes that there was
record evidence to support the jury's conclusion that the
Plaintiff's injuries were not caused by the subject accident.
However, no evidence was presented that any of the
diagnostic tests that were performed were not reasonable
or necessary to determine whether the accident caused
the plaintiff's complained-of *96 injuries. Thus, we agree
with the trial court that Sparks-Book controls. !
Accordingly, because Allstate cannot establish that the
trial court's decision to grant the plaintiff a new trial was
unreasonable, or point to a patent abuse of the trial court's
discretion, we affirm.
Affirmed.
All Citations
46 So.3d 94, 35 Fla. L. Weekly D2151
1 The trial court's finding and our affirmance on appeal dees not present a conflict with Plana v. Sainz, 980 So.2d 554 (Fla.
3d DCA 2008), because in Plana there was conflicting expert testimony as to whether the diagnostic tests performed
were necessary or appropriate.
End of Document
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24 Fla. L. Weekly D2014
KeyCite Yellow Flag - Negative Treatment
Declined to Follow by Frank v. Wyatt, Fla.App. | Dist., April 13, 2004
746 So.2d 483
District Court of Appeal of Florida,
Second District.
Curtis WILLIAMSON and Mary Lou
Williamson, Appellants/Cross-Appellees,
ve
SUPERIOR INSURANCE COMPANY,
Appellee/Cross-Appellant.
No. 97-00195.
|
Aug. 25, 1999.
|
Rehearing Denied Sept. 14, 1999.
Synopsis
Plaintiff sued insurance company to recover damages
for injuries resulting from automobile accident. The
Circuit Court, Pinellas County, Fred L. Bryson, J.,
entered judgment on jury verdict for insurance company.
Plaintiff appealed. On motion for clarification, the
District Court of Appeal held that: (1) jury could not reject
uncontroverted medical testimony indicating a permanent
injury, and (2) certain medical records and surveillance
tape were relevant to issue of extent of damages.
Appeal and cross-appeal reversed; remanded for new trial.
West Headnotes (6)
(1) Trial
® Hearing and Determination
Party moving for a directed verdict admits
the truth of all facts in evidence and every
reasonable conclusion or inference which can
be drawn from such evidence favorable to the
non-moving party.
4 Cases that cite this headnote
{2} Trial
& Conflicting Evidence
BI
{4]
6)
Motion for directed verdict should only be
denied and the case submitted to the jury if
conflicting evidence has been presented by the
parties.
2 Cases that cite this headnote
Damages
> Permanent Character of Injuries and
Future Suffering
When a plaintiff presents expert testimony
to support a claim of a permanent injury,
the defense, in order to survive a motion
for a directed verdict, must come forward
with either countervailing evidence on the
permanency issue or must severely impeach
the plaintiff's experts.
4 Cases that cite this headnote
Evidence
& Testimony of Experts
Evidence
®& Conflict with Other Evidence
Jury is free to determine the credibility of
expert testimony and decide what weight
should be ascribed to such testimony in
light of conflicting evidence, including lay
testimony.
1 Cases that cite this headnote
Damages
© Permanent Character of Injuries and
Future Suffering
Jury could not reject uncontroverted medical
testimony indicating a permanent injury, and
thus plaintiff injured in automobile accident
was entitled to directed verdict on issue of
permanency, where medical experts testifying
on behalf of plaintiff stated that he had
sustained a permanent injury as a result
of accident, and while experts offered by
defendant took issue with certain aspects
of plaintiff's experts’ testimony, neither said
there was no permanent injury caused by
accident.
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1Williamson v. Superior Ins. Co., 746 So.2d 483 (1999)
24 Fla, L. Weekly D2014
1 Cases that cite this headnote
(6) Damages
= Subsequent Physical Condition
Medical records of plaintiff's visit to physician
concerning chest pains and surveillance tape
were relevant to issue of extent of damages
resulting from automobile accident, to extent
that medical records contained plaintiffs
statements about his physical activities and
surveillance tape depicted plaintiff engaged in
physical activities, where plaintiff claimed his
injuries were such that he could not perform
activities involved in his lawn care business.
Cases that cite this headnote
Attorneys and Law Firms
*484 Miriam J. Fisher, Pinellas Park, and Richard A.
Bokor, Tampa, for Appellants/Cross-Appellees.
Rex E. Delcamp of Delcamp & Siegel, St. Petersburg, for
Appellee/Cross-A ppellant.
Opinion
PER CURIAM.
Curtis Williamson and Mary Lou Williamson (the
Williamsons) challenge a final judgment entered in favor
of Superior Insurance Company (Superior) in a personal
injury action. They allege that the trial court erred in
denying their motion for a directed verdict and their
motion for a new trial on the issue of permanent injury.
Superior cross-appeals the trial court's exclusion of certain
medical records and a surveillance tape. We reverse the
trial court's denial of the directed verdict and exclusion of
evidence.
Curtis Williamson was injured in an automobile
accident on June 21, 1992, when his vehicle was rear-
ended by a vehicle being driven by James Joseph
Sorsby. His injuries included low back injury/pain, neck
injury/pain, left shoulder injury/pain, *485 headaches,
and temporomandibular joint (TMJ) dysfunction. Mr.
Williamson stated at trial that he had sustained a back
injury over thirty years prior to the present accident.
Those injuries had cleared up during the next two years,
and there had been no problems for a period of almost
thirty years. Mr. Williamson testified that prior to this
accident he was able to maintain his lawn care business
without any physical limitations. After the accident he
began having problems which interfered with his ability to
run the business and resulted in his hiring an additional
person. Mr. Williamson's testimony was corroborated by
his wife who stated that her husband had no business
or social limitations during the last thirty years. Joseph
Gwynne, who worked with Mr. Williamson both before
and after the accident, testified that Mr. Williamson
had no difficulty performing such tasks as heavy lifting,
moving dirt or trimming shoulder-high plants until after
the June 21 accident.
The Williamsons offered the testimony of three physicians
on the issue of the permanency of Mr. Williamson's
injury. Doctors DePolo and DiCarlo testified that Mr.
Williamson's back and jaw injuries were the result of
the accident on June 21, 1992, and that the condition
was permanent. Dr. Garcia, a dentist specializing in
the treatment of jaw ailments, testified concerning Mr.
Williamson's temporomandibular joint (TMJ) injury. Dr.
Garcia attributed a 19% permanent disability to the TMJ
problem, and he opined that the TMJ was a result of the
accident on June 21, 1992.
Superior presented the testimony of two medical experts
at trial. Dr. Greenberg, who gave no significance to
the bulging disks that Mr. Williamson's doctors found
significant, admitted that a previously asymptomatic
arthritic condition could be permanently aggravated by a
trauma, such as the type of trauma suffered in the present
case. Additionally, Dr. Slomka stated that a moderate to
severe arthritis condition with little or no symptoms can
become symptomatic by moderate to severe trauma.
At the conclusion of the evidence in this jury trial, counsel
for the Williamsons moved for a directed verdict on the
issue of permanency. After the motion was denied, the
jury found Mr. Williamson had not sustained a permanent
injury and returned a verdict for the defense on that issue.
A timely motion for new trial was subsequently denied.
PE) 4
admits the truth of all facts in evidence and every
reasonable conclusion or inference which can be drawn
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A party moving for a directed verdictWilliamson v. Superior Ins. Co., 746 So.2d 483 (1999)
24 Fla. L. Weekly 02014
from such evidence favorable to the non-moving party.
See Powell v. Napolitano, 578 So.2d 747 (Fla. 2d DCA
1991); Azar v. Richardson Greenshields Sec., Inc., 528
So.2d 1266 (Fla. 2d DCA 1988). A motion for directed
verdict should only be denied and the case submitted
to the jury if conflicting evidence has been presented by
the parties. When a plaintiff presents expert testimony
to support a claim of a permanent injury, the defense,
in order to survive a motion for a directed verdict,
must come forward with either countervailing evidence
on the permanency issue or must severely impeach the
Proponents experts. See Holmes v. State Farm Mut. Auto.
Ins. Co., 624 So.2d 824 (Fla. 2d DCA 1993). A jury is free
to determine the credibility of expert testimony and decide
what weight should be ascribed to such testimony in
light of conflicting evidence-including lay testimony. See
Easkold v. Rhodes, 614 So.2d 495 (Fla.1993). However, a
jury is not free to reject uncontroverted medical testimony
indicating a permanent injury. See Vega v. Travelers
AIndem. Co., 520 So.2d 73 (Fla. 3d DCA 1988); Short v.
Ehrler, 510 So.2d 1110 (Fla. 4th DCA 1987).
[5] In the instant case, the medical experts testifying on
behalf of Mr. Williamson stated that he had sustained a
permanent injury asa result of this accident. While the two
experts offered by *486 Superior took issue with certain
aspects of Mr. Williamson's experts’ testimony, neither Dr.
Greenberg nor Dr. Slomka said there was no permanent
injury caused by this accident. In fact, both agreed that
an aggravation of a nonsymptomatic arthritis would be
considered a permanent exacerbation.
There is no evidence to refute Mr. Williamson's claim of
@ permanent injury. Therefore, the jury's verdict finding
no permanent injury was against the manifest weight
of the evidence. The jury was not free to reject the
uncontroverted medical testimony indicating a permanent
injury. See Vega v. Travelers Indem. Co. The Williamsons
were entitled to a directed verdict on the issue of
permanency.
[6] Superior has cross-appealed two evidentiary rulings
made by the trial court-the failure to admit medical
records of Mr. Williamson's visit to a physician concerning
chest pains and the failure to admit a surveillance tape.
Both items of evidence are relevant to the issue of the
extent of damages. Mr. Williamson claims his injuries
are such that he cannot perform the activities involved
in his lawn care business. He claims damages based on
having to hire additional help to carry out work he could
have performed prior to this accident. To the extent that
the medical records contain Mr. Williamson's statements
about his physical activities and the surveillance tape
depicts Mr. Williamson engaged in physical activities,
these items are relevant to the issue of damages and
should be admitted at any subsequent proceedings. See
Otis Elevator Co. v. Youngerman, 636 So.2d 166 (Fla. 4th
DCA 1994); Marion County v. Cavanaugh, 577 So.2d 599
(Fla. Sth DCA 1991).
Because the records and tape which we conclude should
have been admitted might also have relevancy on the
questions of permanency and causation as well as the
amount of damages, all of these issues should be retried.
Accordingly, we reverse the final judgment and remand
for a new trial on the issues of causation, permanency and
damages.
Appeal and cross-appeal reversed; remanded for new trial.
BLUE, A.C.J.. CASANUEVA, J., and QUINCE,
PEGGY A., Associate Judge, Concur.
All Citations
746 So.2d 483, 24 Fla. L. Weekly D2014
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
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36 Fla. L. Weekly S211
64 So.3d 1201
Supreme Court of Florida.
Howard B. WALD, Jr., Petitioner,
ve
Athena F. GRAINGER, etc., Respondent.
No. SCo8-1143.
|
May 19, 2011.
Synopsis
Background: Action was brought against defendant driver
to recover for injuries sustained in automobile accident.
The Circuit Court, Duval County, Peter J. Fryefield, J.,
entered judgment on jury verdict in favor of plaintiff in an
amount of $1 million. Defendant appealed. The District
Court of Appeal, 982 So.2d 42,reversed and remanded.
Plaintiff sought review, alleging direct conflict.
Holdings: The Supreme Court, Quince, J., held that:
[1] jury was not free to reject undisputed expert testimony
that plaintiff's thigh injury was permanent;
{2] a lack of pain in plaintiffs permanently injured thigh
did not preclude award of noneconomic damages, where
there was evidence of sensitivity and discomfort; and
[3] defendant failed to preserve appellate challenge to
verdict form and jury instructions.
Quashed and remanded.
West Headnotes (13)
1 Damages
& Permanent character of injuries and
future suffering
Determinations about the permanency of
an injury are generally made by juries;
nonetheless, where the evidence of injury and
causation is such that no reasonable inference
could support a jury verdict for defendant,
2]
BI
(4)
6]
it is not improper to direct a verdict on the
permanency issue for the plaintiff.
3 Cases that cite this headnote
Damages
& Necessity of proof as to damages in
general
A plaintiff can establish a prima facie case
of permanency of an injury by presenting
expert testimony of permanency; once this
is done, the burden shifts to the defendant
to present countervailing expert testimony,
severely impeach the plaintiff's expert, or
present other evidence which creates a direct
conflict with the plaintiff's evidence.
4 Cases that cite this headnote
Trial
Operation and Effect of Motion or
Request
A party moving for a directed verdict admits
the truth of all facts in evidence and every
reasonable conclusion or inference which can
be drawn from such evidence favorable to the
non-moving party.
3 Cases that cite this headnote
Trial
© Insufficiency to support other verdict;
conclusive evidence
A directed verdict is proper when the
evidence and all inferences from the evidence,
considered in the light most favorable to the
non-moving party, support the movant's case
as a matter of law and there is no evidence to
rebut it.
4 Cases that cite this headnote
Appeal and Error
& Evidence
Appeal and Error
Tort cases and personal injuries in
general
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36 Fla. L. Weekly S211
{61
"1
18]
In determining the propriety of a trial
court's directed verdict on permanency of
an injury, the reviewing court must first
determine whether the evidence supporting
the plaintiff's claim of permanent injury within
a reasonable degree of medical probability
met that standard; if so, the court then needs
to examine the record to determine if there
is any conflicting evidence or inferences on
the issue of permanent injury from which the
jury could draw a conclusion favorable to the
party against whom the directed verdict was
entered.
5 Cases that cite this headnote
Evidence
& Testimony of Experts
A jury is free to weigh the opinion testimony
of expert witnesses, and either accept, reject or
give that testimony such weight as it deserves
considering the witnesses’ qualifications, the
reasons given by the witness for the opinion
expressed, and all the other evidence in the
case, including lay testimony.
9 Cases that cite this headnote
Damages
Permanent character of injury
When medical evidence on permanence of
injury is undisputed, unimpeached, or not
otherwise subject to question based on the
other evidence presented at trial, the jury is not
free to simply ignore or arbitrarily reject that
evidence and render a verdict in conflict with
It.
1 Cases that cite this headnote
Damages
& Permanent character of injury
Jury's ability to reject undisputed expert
testimony that a plaintiff's injury is permanent
must be based on some reasonable basis
in the evidence; this can include conflicting
medical evidence, evidence that impeaches the
expert's testimony or calls it into question,
19]
(10)
such as the failure of the plaintiff to give
the medical expert an accurate or complete
medical history, conflicting lay testimony or
evidence that disputes the injury claim, or
the plaintiff's conflicting testimony or self-
contradictory statements regarding the injury.
13 Cases that cite this headnote
Damages
= Permanent character of injury
Evidence
& Damages
Jury was not free, in negligence action
arising out of traffic accident, to reject expert
testimony that plaintiffs thigh injury was
permanent; while plaintiff's and defendant's
experts disagreed as to the medical cause of the
thigh injury, both experts agreed that plaintiff
sustained a permanent injury to his thigh that
was causally related to the accident.
4 Cases that cite this headnote
Damages
& Physical Suffering and Inconvenience
Driver's lack of pain in his thigh, permanently
injured in motor vehicle accident, did not
preclude an award of noneconomic damages;
noneconomic damages were not limited to
pain, and there was evidence that driver's
thigh caused sensitivity and discomfort,
especially if he permitted children to sit on his
lap. West's F.S.A. § 627.737(2)(b).
1 Cases that cite this headnote
Damages
& Physical Suffering and Inconvenience
Damages
Physical illness, impact, or injury;zone
of danger
As long as part of the bodily injury arising
out of a motor vehicle accident involves
a permanent injury within a reasonable
degree of medical probability, the plaintiff
can recover noneconomic damages related
to his pain, suffering, mental anguish, and
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36 Fla. L. Weekly S211
inconvenience for all of the injuries related to
the accident. West's F.S.A. § 627.737(2)(b).
5 Cases that cite this headnote
[12] Damages
& Physical Suffering and Inconvenience
Damages
© Physical illness, impact, or injury:zone
of danger
Pain, suffering, mental anguish and
inconvenience are compensable noneconomic
damages in a case where part of the
bodily injury arising out of a motor vehicle
accident involves a permanent injury within
a reasonable degree of medical probability.
West's F.S.A. § 627.737(2)(b).
4 Cases that cite this headnote
[13] Appeal and Error
Instructions
Defendant driver appealing jury verdict in
favor of plaintiff in action arising out of
motor vehicle accident failed to preserve
for appeal issue of whether verdict form
or jury instructions properly gave jury the
opportunity to reject the permanency of
plaintiff's injuries, where defendant voiced no
objection on such ground when asked by trial
court if the instructions and verdict form were
acceptable.
Cases that cite this headnote
Attorneys and Law Firms
*1203 S. Perry Penland, Jr. and Eric S. Block,
Jacksonville, FL, for Petitioner.
Susan S. Oosting and J. Stephen O'Hara, Jr. of O'Hara
Law Firm, Jacksonville, FL, for Respondent.
Howard B. Wald, Jr., seeks review of the decision of
the First District Court of Appeal in Grainger v. Wald,
982 So.2d 42 (Fla. Ist DCA 2008), on the ground that
it expressly and directly conflicts with decisions of other
district courts of appeal and this Court on two questions of
law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
For the reasons expressed below, we quash the decision of
the First District.
FACTUAL AND PROCEDURAL HISTORY
Howard Wald, Jr., was involved in a car accident with
Sam Gus Felos, who admitted his fault for the accident. !
Wald alleged injuries to his neck, back, right arm, foot,
and thigh from the collision. Wald sought damages for his
neck and back injuries, but not the thigh injury because it
caused no “ongoing chronic pain.”
*1204 Because the defendant admitted fault, the only
issues the jury had to consider were causation, the
permanency of Wald's injuries, and damages. Two doctors
testified at trial. Wald's treating physician, Dr. Jackson
Tan, stated that Wald's injuries, including his neck, back,
tight elbow, and right thigh injuries, were permanent
and connected with the accident. The defendant's expert
physician, Dr. Howard Hogshead, testified that Wald had
permanent right thigh numbness and, giving Wald “the
benefit of the doubt,” that condition was related to the
collision. Dr. Hogshead also stated his opinion that Wald
did not sustain permanent neck or back injury as a result
of the accident.
Wald moved for directed verdict on the issue of
permanency. Over the defendant's objection, the trial
court granted the motion for directed verdict on
permanency, but only as to the right thigh condition. The
trial court instructed the defendant that he was free to
argue to the jury that none of Wald's other injuries were
permanent. The trial court instructed the jury that it was
free to weigh, accept, or reject the opinions of any expert
witness. However, there was no reference to permanency
in the verdict form or in the jury instructions. The jury
entered judgment for Wald and awarded him over $1
million in damages for his injuries.
Opinion
QUINCE, J On appeal, the First District Court reversed the final
7 judgment, finding that the trial court committed reversible
error by directing a verdict as to permanency as that was
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36 Fla. L. Weekly $271
a jury question. The First District explained that a jury is
free to weigh the credibility of expert witnesses as it does
any other witness and to reject any testimony regarding
permanency, including uncontradicted testimony. The
First District concluded that there was conflicting
testimony as to the permanency of Wald's neck and back
injuries and ambivalent testimony as to the permanency
of the thigh injury, for which Wald did not even seek
damages. Grainger v. Wald, 982 So.2d 42 (Fla. Ist DCA
2008).
Wald sought review of the First District's decision in
Grainger based on alleged express and direct conflict with
decisions of other district courts and this Court on two
points of law, whether permanency is a jury question
and whether the jury can reject uncontradicted expert
testimony. This Court granted review and heard oral
argument from the parties.
ANALYSIS
In the instant case, the First District concluded that
the trial court erred as matter of law by directing a
verdict on issue of permanency, as “permanency is a
jury question.” Grainger, 982 So.2d at 43. The First
District also concluded that “the jury was free to
reject any testimony regarding permanency, including
uncontradicted testimony.” Jd. However, we conclude
that these statements by the First District are overly broad
and do not accurately reflect Florida law on these issues.
tl 2]
injury are generally made by juries. See State Farm Mut.
Auto. Ins. Co. v. Orr, 660 So.2d 1061 (Fla. 4th DCA
1995). Nonetheless, where the evidence of injury and
causation is such that no reasonable inference could
support a jury verdict for the defendant, it is not improper
to direct a verdict on the permanency issue for the
plaintiff. Za. at 1063. A plaintiff can establish a prima
facie case of permanency by presenting expert testimony
of permanency. Once this is done, the burden shifts to
the defendant to present countervailing expert testimony,
severely impeach the plaintiff's expert, or present other
evidence which creates a direct conflict with the plaintiff's
evidence. See *1205 Evans v. Montenegro, 728 So.2d
270, 271 (Fla. 3d DCA 1999) (holding that a directed
verdict for the plaintiff on permanency was proper where
the defendant did not impeach the plaintiff's expert and
Determinations about the permanency of an
did not present conflicting evidence on permanency). If
the defendant succeeds in this endeavor, a jury question
is presented; if not, a directed verdict on permanency is
appropriate. Id.
13] [4] A party moving for a directed verdict admits
the truth of all facts in evidence and every reasonable
conclusion or inference which can be drawn from
such evidence favorable to the non-moving party. See
Williamson v. Superior Ins. Co., 746 So.2d 483, 485 (Fla. 2d
DCA 1999). A directed verdict is proper when the evidence
and all inferences from the evidence, considered in the
light most favorable to the non-moving party, support the
movant's case as a matter of law and there is no evidence
to rebut it. Orr, 660 So.2d at 1062.
[5] In determining the propriety of a trial court's directed
verdict on permanency, the reviewing court must “first
determine whether the evidence supporting [the plaintiff's]
claim of permanent injury within a reasonable degree
of medical probability met that standard. If so, [the
court] then need [s] to examine the record to determine
if there is any conflicting evidence or inferences on the
issue of permanent injury from which the jury could
draw a conclusion favorable to the party against whom
the directed verdict was entered.” Id. (finding neither
contradictory nor conflicting expert medical evidence and
no other evidence that would furnish the jury a reasonable
basis upon which to disbelieve the plaintiff's complaints
of pain or to reject the opinion testimony of the medical
experts).
[6] [7] A jury is free to weigh the opinion testimony
of expert witnesses, and either accept, reject or give
that testimony such weight as it deserves considering the
witnesses’ qualificati
Preview
Sparks-Book v. Sports Authority, Inc., 699 So.2d 767 (1997) 22 Fla. L. Weekly D2069 KeyCite Yellow Flag - Negative Treatment Distinguished by Plana v. Sainz, Fla.App. 3 Dist., June 18, 2008 699 So.2d 767 District Court of Appeal of Florida, Third District. Lila SPARKS—BOOK and Edward A. Book, Jr., her husband, Appellants, ve The SPORTS AUTHORITY, INC., Appellee. No. 96-2491. | Sept. 3, 1997. | Rehearing Denied Oct. 15, 1997. Synopsis Customer and her spouse sued owner of sporting goods store to recover for injuries allegedly sustained when camping stove was accidentally knocked onto customer's head. After owner admitted liability, jury in the Circuit Court, Dade County, Gisela Cardonne, J., returned verdict for owner on damages issue, based on finding that owner's negligence was not legal cause of any injuries. Plaintiffs appealed. The District Court of Appeal, Nesbitt, J., held that plaintiffs were entitled, at a minimum, to recover medical expenses for any diagnostic testing reasonably necessary to determine whether accident caused injuries. Reversed and remanded. West Headnotes (2) it] Damages Medical Treatment and Care of Person Injured Customer who was struck on head by camping stove accidentally knocked off shelf by store employee was entitled, at a minimum, at trial on damages after store owner admitted liability, to recover medical expenses for any diagnostic testing reasonably necessary to determine whether injuries were caused by accident, even though jury determined that accident did not cause injuries. 8 Cases that cite this headnote [2] Damages & Necessity of Proof as to Damages in General Customer who sued store owner for injuries allegedly sustained when camping stove was knocked off shelf by employee and landed on customer's head was still required to prove some connexity between damages claimed and owner's tortious conduct, even though owner admitted liability. Cases that cite this headnote Attorneys and Law Firms *768 Robert C. Maland, Miami; Dorothy F. Easley, Coral Gables, for appellants. Fertig and Gramling and Frank L. Gramling, and Darlene M. Lidondici and Elizabeth J. Gregovits, Fort Lauderdale, for appellee. Before NESBITT, LEVY and GODERICH, JJ. Opinion NESBITT, Judge. Plaintiffs-appellants appeal an adverse final judgment and the lower court's denial of their motion for a new trial. We reverse. Lila Sparks—Book was shopping with her husband at The Sports Authority on August 23, 1992. There, a camping stove was accidentally knocked off a shelf by an employee and it landed on Sparks—Book's head. She filed suit, along with her husband who filed a loss of consortium claim. The Sports Authority admitted liability but contested damages. The main issue at trial was the extent to which Sparks— Book's physical ailments were attributable to the accident at The Sports Authority. At the end of the trial, the jury answered “No” to the question: “Was the negligence on WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 1 of 18Sparks-Book v. Sports Authority, Inc., 699 So.2d 767 (1997) 22 Fla. L. Weekly 02069 the part of Defendant, The Sports Authority, Inc. the legal cause of any loss, injury or damage to Plaintiff Lila Sparks~Book?” That finding ended the case, and the trial court entered final judgment in The Sports Authority's favor. The trial court later denied the plaintiffs' motion for a new trial which contended, in short, that the verdict was against the manifest weight of the evidence. [1] Ata minimum, the plaintiff was entitled to recover for those medical expenses incurred for any diagnostic testing which was reasonably necessary to determine whether the accident caused her injuries. See Blanford v. Polk County, 410 So.2d 667, 669 (Fla. 2d DCA 1982); see also Noralyn O. Harlow, Annotation, Recoverability from tortfeasor Footnotes of cost of diagnostic examinations absent proof of actual bodily injury, 46 A.L.R.4th 1151 (1986). It is undisputed that paramedics were called to the scene of the accident and that Sparks—Book was transported to an emergency toom. There, x-rays were taken of Sparks—Book's jaw, shoulder, and neck. 12) on the question of the plaintiffs' damages. t Consequently, we reverse and remand for a new trial All Citations 699 So.2d 767, 22 Fla. L. Weekly D2069 1 With respect to the plaintiffs’ contention that the first question on the verdict form was inconsistent with the defendant's. admission of liability, we refer the parties to Rucker v. Garlock, Inc., 672 So.2d 100 (Fla. 3d DCA 1996). There, in a trial solely on damages we held: “[E]ven with causation not at issue, plaintiff was still obligated to prove some connexity between the damages claimed and the [defendant's tortious conduct].” /d. at 102. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2019 Thomson Reuters. No claim to original -S. Government Works. 2 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 2 of 18Pack v. Geico General Ins. Co., 119 So.3d 1284 (2013) 36 Fla. L. Weekly D1673 * "KeyCite Yellow Flag - Negative Treatment Declined to Extend by State Farm Mutual Automobile Insurance Company v. Ferranti, Fla.App. 5 Dist., September 28, 2018 119 So.gd 1284 District Court of Appeal of Florida, Fourth District. (2) Vicky PACK, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee. No. 4D12-3146. | Sept. 4, 2013. ‘Synopsis Background: Insured brought action against insurer to recover uninsured-motorist (UM) benefits. Following a jury trial, the Circuit Court, Seventeenth Judicial Circuit, Broward County, John J. Murphy, III, J., entered judgment awarding no damages. Insured appealed. BI Holdings: The District Court of Appeal held that: (1] jury verdict awarding no damages to insured was against manifest weight of the evidence, but [2] evidence pertaining to a letter of protection between a plaintiff and her treating physician, when that treating physician testifies as an expert on the plaintiff's behalf in a personal-injury action, is relevant to show potential bias of the treating physician. Reversed and remanded. West Headnotes (6) [4] {1 Damages € Medical treatment and care of person injured Generally, a plaintiff in a personal-injury action may recover the medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused her injuries; this is true whether or not the jury finds the accident to be the legal cause of the injury. 2 Cases that cite this headnote Damages > Expenses Evidence Conflict with other evidence Factors that can allow a jury in a personal- injury action to award a zero verdict regardless of any medical expenses incurred include pre-existing injuries with extensive treatments, lack of candor with treating physicians, videotapes that show actual physical capabilities, and expert medical opinions which conflict as to causation. 1 Cases that cite this headnote Damages & Expenses Evidence @ Damages Jury verdict awarding no damages to insured was against manifest weight of the evidence in action to recover uninsured-motorist (UM) benefits; insured's and insurer's experts agreed that insured suffered at least neck sprain as result of automobile accident, there was no evidence that insured's prior neck injuries required extensive treatments, and there were no videotapes depicting insured’s physical capabilities. Cases that cite this headnote Appeal and Error $= Inadequate Award;Additur Test to be applied in determining the adequacy of a verdict is whether a jury of reasonable persons could have returned that verdict. Cases that cite this headnote WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 3 of 18Pack v. Geico General Ins. Co., 119 So.3d 1284 (2013) 38 Fla. L. Weekly D1873 IS] Evidence & Contradiction and impeachment Evidence pertaining to a letter of protection between a plaintiff and her treating physician, when that treating physician testifies as an expert on the plaintiff's behalf in a personal- injury action, is relevant to show potential bias of the treating physician. West's F.S.A. § 90.608(2). 1 Cases that cite this headnote [6] New Trial © Verdict in general That first interrogatory on jury verdict form used “damage” rather than “injury” did not warrant new trial on issue of liability in insured's action to recover uninsured- motorist (UM) benefits; although insured claimed that jury may have answered “yes” to interrogatory because insured's automobile was damaged, nothing in jury instructions or closing arguments would have suggested to jury that physical damage to automobile was issue to be decided by jury, and jury expressly determined that insured did not suffer permanent injury. Cases that cite this headnote Attorneys and Law Firms *1285 Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, for appellant. Angela C. Flowers of Kubicki Draper, Ocala, for appellee. Opinion PER CURIAM. Vicky Pack sued Geico General Insurance Company (“Geico”) for injuries suffered following a car collision with an uninsured motorist. The evidence was undisputed that Pack suffered at least a neck sprain as a result of the accident and had medical expenses related to the diagnosis of the sprain. The jury returned a verdict for zero damages. Pack appeals the trial court's denial of her motion for new trial. We reverse, holding that under the facts of this case, Pack was entitled to the reasonable medical expenses incurred for diagnostic testing, and the failure to award any damages rendered the verdict both against the manifest weight of the evidence and inadequate. *1286 Pack also contends that she is entitled to a new trial because the trial court denied her motion in limine and permitted the defense to introduce a letter of protection between her and her treating physician who testified as her expert witness on her claim of more serious injuries to her neck. Under Section 90.608(2), Florida Statutes (2009), any party may impeach a witness's credibility by showing that the witness is biased. We affirm the lower court's ruling because a letter of protection between a plaintiff and a treating physician is relevant to show potential bias. Factual Background Pack was involved in a multi-car accident with an uninsured driver. She had an uninsured motorist policy through Geico. At trial, Geico admitted the negligence of the driver; therefore the issue for the jury was whether that negligence was the legal cause of the loss, injury, or damage sustained by Pack. Pack's medical expert, Dr. Gieseke, is a neurosurgeon who examined Pack upon a referral from the emergency room doctor. Treatment commenced under a letter of protection. Each medical expert testifying at trial agreed that an injury was caused by the accident. However, they differed as to the severity of the injury. Dr. Gieseke explained that Pack suffered a neck sprain from which he could feel a neck spasm. He also diagnosed her with a fracture and disc herniation. Geico's medical expert, Dr. Routman, stated that the accident caused only a neck sprain. Prior to the accident at issue, Pack was twice hospitalized with complaints including neck pain. During examinations after the accident, she did not reveal either prior hospitalization to either Dr. Gieseke or Dr. Routman. She testified that the neck pain on both WESTLAW © 201 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 4 of 18 Government Works. 2Pack v. Geico General Ins. Co., 119 So.3d 1284 (2013) 38 Fla. L. Weekly D1873 occasions was minor and incidental to other more severe injuries. The jury returned a verdict stating that the uninsured driver's negligence was the legal cause of damage to Pack. However, the jury awarded Pack zero damages for past or future medical expenses and declared her injury non- permanent. Pack moved for a new trial on the bases that the verdict was both inadequate and against the manifest weight of the evidence. The motion was denied. Pack now appeals, claiming the trial court error erred by denying a new trial and by allowing evidence of a letter of protection. Analysis I. Manifest Weight of the Evidence and Inadequate Verdict [1] Generally, a plaintiff may recover the medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused her injuries. Sparks-Book v. Sports Authority Inc., 699 So.2d 767, 768 (Fla. 34 DCA 1997). This is true whether or not the jury finds the accident to be the legal cause of the injury. Id. [2] An exception to the general rule exists when certain factors are met. In State, Department of Transportation v, Rosario, 782 So.2d 927, 928 (Fla. 2d DCA 2001), the court listed the factors that could allow a jury to award a zero verdict regardless of any medical expenses incurred. These factors include pre-existing injuries with extensive treatments, lack of candor with treating physicians, videotapes that show actual physical capabilities, and expert medical opinions which conflict as to causation. Id. The court upheld the zero verdict because the evidence supported the fact the “jury could conclude that [the plaintiff] suffered no damages as a result of the ... accident.” Jd. [3] In this case, there is no evidence that Pack's prior neck injuries required *1287 extensive treatments. There were no videotapes depicting her physical capabilities. Finally, both the plaintiff and defense experts agreed that Pack suffered at least a neck sprain as a result of the accident. Therefore, the jury had no reasonable basis to conclude that Pack suffered no injury asa result of the accident, and the verdict was against the manifest weight of the evidence. [4] Further, because Pack was awarded zero damages, the verdict is inadequate as a matter of law. “The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable [persons] could have returned that verdict.” Griffis v. Hill, 230 So.2d 143, 145 (Fla.1969). Because the exception to the general rule, requiring payment of diagnostic testing, does not apply, Pack was entitled to at least the medical costs for reasonable diagnostic testing. I. Letter of Protection [5] Any party may attack the credibility of a witness by exposing a potential bias. § 90.608(2), Fla. Stat. (2009). Evidence pertaining to a letter of protection between a plaintiff and her treating physician, when that treating physician testifies as an expert on the plaintiff's behalf, is relevant to show potential bias. See Carnival v. Jimenez, 112 So.3d 513, 520 (Fla. 2d DCA 2013); see also Allstate Inc. Co. v. Boecher, 733 So.2d 993, 997 (Fla.1999) (“A jury is entitled to know the extent of the financial relationship between the party and the witness....”). Pack argues that evidence pertaining to a letter of protection, absent a referral relationship from the lawyer to the doctor, is not relevant according to this court's prior ruling in Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011). In Katzman, this court held that a letter of protection is not sufficient in itself to allow discovery of an expert beyond that permissible under Florida Rule of Civil Procedure 1.280(b)(4)(A). This court stated that a referral froma lawyer to the expert witness doctor injects the doctor into the litigation and therefore the balance shifts in favor of allowing discovery. Katzman, 76 So.3d at 1064. However, this court did not state that a letter of protection is not relevant to show potential bias. Similarly, Steinger, Iscoe & Greene v. GEICO General Insurance Co., 103 So.3d 200 (Fla. 4th DCA 2012) does not state that letters of protection are irrelevant to show Potential bias. In Steinger, this court held that discovery of letters of protection was premature. Jd. At 206. Steinger is distinguishable because, in that case, Geico sought discovery of all letters of protection between the law firm and four medical providers regardless of whether the letters of protection pertained to the plaintiff in that case. Jd. at 203. The purpose of discovering the letters of protection in Steinger was to expose the extent of the financial relationship between the law firm and the WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 5 of 18Pack v. Geico General Ins. Co., 119 So.3d 1284 (2013) 36 Fla, L. Weekly 01873 treating physicians. /d. at 205. This court held that because the discovery went beyond that permissible under Florida Rule of Civil Procedure 1.280(b)(5)(A), it was premature absent a showing of a financially beneficial relationship between the law firm and the doctors, including a referral relationship. Jd. at 206. Both Katzman and Steinger are inapposite to the instant case because they pertain to discovery of financial information beyond what is generally permissible under Florida Rule of Civil Procedure 1.280. Neither case stands for the proposition that evidence pertaining to a letter of protection between a plaintiff and her treating physician is not relevant to show a potential bias when that treating physician testifies as the plaintiff's medical expert. *1288 Therefore, the trial court properly admitted the evidence Footnotes pertaining to the letter of protection because it was relevant to show a potential bias. 16] Therefore, we reverse and remand for a new trial on damages for Pack's undisputed, non-permanent neck sprain, ! Reversed and remanded for further proceedings. WARNER, CONNER, JJ., and LEVENSON, JEFFREY, R., Associate Judge, concur. All Citations 119 So.3d 1284, 38 Fla. L. Weekly D1873 1 Pack argues a new trial on liability is warranted because the first interrogatory on the verdict form used “damage” rather than “injury,” thus the jury may have answered “yes” to the interrogatory because Pack's vehicle was damaged. We disagree with Pack's argument. Nothing in the jury instructions or closing arguments would have suggested to the jury that physical damage to Pack's vehicle was an issue to be decided by the jury. The jury expressly determined Pack did not suffer a permanent injury. As to that issue, the jury's verdict was not against the manifest weight of the evidence. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works 4 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 6 of 18Allstate Property and Cas. Ins. Co. v. Flores, 46 So.3d 94 (2010) 35 Fla. L. Weekly D2157 46 So.3d 94 District Court of Appeal of Florida, Third District. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, v. Juan M. FLORES, Appellee. No. 3D09-2445. | Sept. 29, 2010. Synopsis Background: Insured brought action against his underinsured motorist (UIM) carrier, seeking coverage arising out of an automobile accident. After award of summary judgment to insured as to liability, a jury awarded insured no damages. The Circuit Court, Miami- Dade County, Gisela Cardonne Ely, J., granted insured's motion for new trial. Insurer appealed. [Holding:] The District Court of Appeal, Rothenberg, J., held that trial court did not abuse its discretion by granting insured a new trial. Affirmed. West Headnotes (3) t) Appeal and Error © Grant of new trial When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. Cases that cite this headnote [2] Appeal and Error & Setting aside verdict;new trial On appeal from the trial court's grant of a new trial, the appellant faces a heavy burden, and must establish that the trial court's abuse of discretion is clear from the record. Cases that cite this headnote 13] Damages => Expenses New Trial & Actions for personal injuries Trial court did not abuse its discretion in action by insured against his underinsured motorist (UIM) carrier by granting insured a new trial after jury awarded insured no damages on his claim for UIM benefits, even if there was evidence to support jury's conclusion that insured’s injuries were not caused by his automobile accident, where there was no evidence that any of the diagnostic tests performed on insured were not reasonable or necessary to determine whether the accident caused the injuries. Cases that cite this headnote Attorneys and Law Firms *95 Kubicki Draper and Caryn L. Bellus, Miami, and Wendi M. Weiner, for appellant. Manuel Vega, Jr., Coral Gables; Ross & Girten and Lauri Waldman Ross and Theresa Girten, Miami, for appellee. Before RAMIREZ, ROTHENBERG, JJ. CJ., and COPE and Opinion ROTHENBERG, J. The defendant, Allstate Property and Casualty Insurance Company (“Allstate”), appeals from an order granting the plaintiff, Juan M. Flores (“the plaintiff”), a new trial. Finding no abuse of the trial court's discretion, we affirm. In November 2006, the plaintiff's vehicle was struck from behind while he was stopped at a Miami intersection. WESTLAW © 2019 Thoms on Reuters. No claim to original U.S. Government Works. 1 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 7 of 18Allstate Property and Cas. Ins. Co. v. Flores, 46 So.3d 94 (2010) 35 Fla. L. Weekly D2151 Nine days later, the plaintiff sought medical attention, which included a series of diagnostic tests. Thereafter, the plaintiff sued Allstate, his underinsured motorist insurance carrier. The trial court entered summary judgment in favor of the plaintiff on liability, and the matter proceed to a jury trial on damages. The jury determined that the accident was not a legal cause of any injuries to the plaintiff and awarded zero damages. The trial court granted the plaintiff's subsequent motion for a new trial, finding that the jury verdict was “contrary to the manifest weight of the evidence that plaintiff required some reasonable diagnostic testing.” This appeal followed. 2) an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion.” Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999). In such a case, the appellant faces a “heavy burden,” and must establish that the trial court's abuse of discretion is “clear from the record.” Id. at 496; see Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975) (holding that there must be a strong showing to upset an order granting a new trial, a heavy burden rests on those seeking to overturn such an order, and any abuse of discretion must be patent from the record). Footnotes “When reviewing the order granting a new trial, [3] In granting the plaintiff a new trial, the trial court relied on Sparks-Book v. Sports Authority, Inc., 699 So.2d 767, 768 (Fla. 3d DCA 1997). In Sparks—Book, this Court reversed an order denying the plaintiffs motion for a new trial, holding that “[a]t a minimum, the plaintiff was entitled to recover for those medical expenses incurred for necessary diagnostic testing which [were] reasonably necessary to determine whether the accident caused her injuries.” Jd. Allstate correctly notes that there was record evidence to support the jury's conclusion that the Plaintiff's injuries were not caused by the subject accident. However, no evidence was presented that any of the diagnostic tests that were performed were not reasonable or necessary to determine whether the accident caused the plaintiff's complained-of *96 injuries. Thus, we agree with the trial court that Sparks-Book controls. ! Accordingly, because Allstate cannot establish that the trial court's decision to grant the plaintiff a new trial was unreasonable, or point to a patent abuse of the trial court's discretion, we affirm. Affirmed. All Citations 46 So.3d 94, 35 Fla. L. Weekly D2151 1 The trial court's finding and our affirmance on appeal dees not present a conflict with Plana v. Sainz, 980 So.2d 554 (Fla. 3d DCA 2008), because in Plana there was conflicting expert testimony as to whether the diagnostic tests performed were necessary or appropriate. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 8 of 18Williamson v. Superior Ins. Co., 746 So.2d 483 (1999) 24 Fla. L. Weekly D2014 KeyCite Yellow Flag - Negative Treatment Declined to Follow by Frank v. Wyatt, Fla.App. | Dist., April 13, 2004 746 So.2d 483 District Court of Appeal of Florida, Second District. Curtis WILLIAMSON and Mary Lou Williamson, Appellants/Cross-Appellees, ve SUPERIOR INSURANCE COMPANY, Appellee/Cross-Appellant. No. 97-00195. | Aug. 25, 1999. | Rehearing Denied Sept. 14, 1999. Synopsis Plaintiff sued insurance company to recover damages for injuries resulting from automobile accident. The Circuit Court, Pinellas County, Fred L. Bryson, J., entered judgment on jury verdict for insurance company. Plaintiff appealed. On motion for clarification, the District Court of Appeal held that: (1) jury could not reject uncontroverted medical testimony indicating a permanent injury, and (2) certain medical records and surveillance tape were relevant to issue of extent of damages. Appeal and cross-appeal reversed; remanded for new trial. West Headnotes (6) (1) Trial ® Hearing and Determination Party moving for a directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the non-moving party. 4 Cases that cite this headnote {2} Trial & Conflicting Evidence BI {4] 6) Motion for directed verdict should only be denied and the case submitted to the jury if conflicting evidence has been presented by the parties. 2 Cases that cite this headnote Damages > Permanent Character of Injuries and Future Suffering When a plaintiff presents expert testimony to support a claim of a permanent injury, the defense, in order to survive a motion for a directed verdict, must come forward with either countervailing evidence on the permanency issue or must severely impeach the plaintiff's experts. 4 Cases that cite this headnote Evidence & Testimony of Experts Evidence ®& Conflict with Other Evidence Jury is free to determine the credibility of expert testimony and decide what weight should be ascribed to such testimony in light of conflicting evidence, including lay testimony. 1 Cases that cite this headnote Damages © Permanent Character of Injuries and Future Suffering Jury could not reject uncontroverted medical testimony indicating a permanent injury, and thus plaintiff injured in automobile accident was entitled to directed verdict on issue of permanency, where medical experts testifying on behalf of plaintiff stated that he had sustained a permanent injury as a result of accident, and while experts offered by defendant took issue with certain aspects of plaintiff's experts’ testimony, neither said there was no permanent injury caused by accident. WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 9 of 18 1Williamson v. Superior Ins. Co., 746 So.2d 483 (1999) 24 Fla, L. Weekly D2014 1 Cases that cite this headnote (6) Damages = Subsequent Physical Condition Medical records of plaintiff's visit to physician concerning chest pains and surveillance tape were relevant to issue of extent of damages resulting from automobile accident, to extent that medical records contained plaintiffs statements about his physical activities and surveillance tape depicted plaintiff engaged in physical activities, where plaintiff claimed his injuries were such that he could not perform activities involved in his lawn care business. Cases that cite this headnote Attorneys and Law Firms *484 Miriam J. Fisher, Pinellas Park, and Richard A. Bokor, Tampa, for Appellants/Cross-Appellees. Rex E. Delcamp of Delcamp & Siegel, St. Petersburg, for Appellee/Cross-A ppellant. Opinion PER CURIAM. Curtis Williamson and Mary Lou Williamson (the Williamsons) challenge a final judgment entered in favor of Superior Insurance Company (Superior) in a personal injury action. They allege that the trial court erred in denying their motion for a directed verdict and their motion for a new trial on the issue of permanent injury. Superior cross-appeals the trial court's exclusion of certain medical records and a surveillance tape. We reverse the trial court's denial of the directed verdict and exclusion of evidence. Curtis Williamson was injured in an automobile accident on June 21, 1992, when his vehicle was rear- ended by a vehicle being driven by James Joseph Sorsby. His injuries included low back injury/pain, neck injury/pain, left shoulder injury/pain, *485 headaches, and temporomandibular joint (TMJ) dysfunction. Mr. Williamson stated at trial that he had sustained a back injury over thirty years prior to the present accident. Those injuries had cleared up during the next two years, and there had been no problems for a period of almost thirty years. Mr. Williamson testified that prior to this accident he was able to maintain his lawn care business without any physical limitations. After the accident he began having problems which interfered with his ability to run the business and resulted in his hiring an additional person. Mr. Williamson's testimony was corroborated by his wife who stated that her husband had no business or social limitations during the last thirty years. Joseph Gwynne, who worked with Mr. Williamson both before and after the accident, testified that Mr. Williamson had no difficulty performing such tasks as heavy lifting, moving dirt or trimming shoulder-high plants until after the June 21 accident. The Williamsons offered the testimony of three physicians on the issue of the permanency of Mr. Williamson's injury. Doctors DePolo and DiCarlo testified that Mr. Williamson's back and jaw injuries were the result of the accident on June 21, 1992, and that the condition was permanent. Dr. Garcia, a dentist specializing in the treatment of jaw ailments, testified concerning Mr. Williamson's temporomandibular joint (TMJ) injury. Dr. Garcia attributed a 19% permanent disability to the TMJ problem, and he opined that the TMJ was a result of the accident on June 21, 1992. Superior presented the testimony of two medical experts at trial. Dr. Greenberg, who gave no significance to the bulging disks that Mr. Williamson's doctors found significant, admitted that a previously asymptomatic arthritic condition could be permanently aggravated by a trauma, such as the type of trauma suffered in the present case. Additionally, Dr. Slomka stated that a moderate to severe arthritis condition with little or no symptoms can become symptomatic by moderate to severe trauma. At the conclusion of the evidence in this jury trial, counsel for the Williamsons moved for a directed verdict on the issue of permanency. After the motion was denied, the jury found Mr. Williamson had not sustained a permanent injury and returned a verdict for the defense on that issue. A timely motion for new trial was subsequently denied. PE) 4 admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 10 of 18 A party moving for a directed verdictWilliamson v. Superior Ins. Co., 746 So.2d 483 (1999) 24 Fla. L. Weekly 02014 from such evidence favorable to the non-moving party. See Powell v. Napolitano, 578 So.2d 747 (Fla. 2d DCA 1991); Azar v. Richardson Greenshields Sec., Inc., 528 So.2d 1266 (Fla. 2d DCA 1988). A motion for directed verdict should only be denied and the case submitted to the jury if conflicting evidence has been presented by the parties. When a plaintiff presents expert testimony to support a claim of a permanent injury, the defense, in order to survive a motion for a directed verdict, must come forward with either countervailing evidence on the permanency issue or must severely impeach the Proponents experts. See Holmes v. State Farm Mut. Auto. Ins. Co., 624 So.2d 824 (Fla. 2d DCA 1993). A jury is free to determine the credibility of expert testimony and decide what weight should be ascribed to such testimony in light of conflicting evidence-including lay testimony. See Easkold v. Rhodes, 614 So.2d 495 (Fla.1993). However, a jury is not free to reject uncontroverted medical testimony indicating a permanent injury. See Vega v. Travelers AIndem. Co., 520 So.2d 73 (Fla. 3d DCA 1988); Short v. Ehrler, 510 So.2d 1110 (Fla. 4th DCA 1987). [5] In the instant case, the medical experts testifying on behalf of Mr. Williamson stated that he had sustained a permanent injury asa result of this accident. While the two experts offered by *486 Superior took issue with certain aspects of Mr. Williamson's experts’ testimony, neither Dr. Greenberg nor Dr. Slomka said there was no permanent injury caused by this accident. In fact, both agreed that an aggravation of a nonsymptomatic arthritis would be considered a permanent exacerbation. There is no evidence to refute Mr. Williamson's claim of @ permanent injury. Therefore, the jury's verdict finding no permanent injury was against the manifest weight of the evidence. The jury was not free to reject the uncontroverted medical testimony indicating a permanent injury. See Vega v. Travelers Indem. Co. The Williamsons were entitled to a directed verdict on the issue of permanency. [6] Superior has cross-appealed two evidentiary rulings made by the trial court-the failure to admit medical records of Mr. Williamson's visit to a physician concerning chest pains and the failure to admit a surveillance tape. Both items of evidence are relevant to the issue of the extent of damages. Mr. Williamson claims his injuries are such that he cannot perform the activities involved in his lawn care business. He claims damages based on having to hire additional help to carry out work he could have performed prior to this accident. To the extent that the medical records contain Mr. Williamson's statements about his physical activities and the surveillance tape depicts Mr. Williamson engaged in physical activities, these items are relevant to the issue of damages and should be admitted at any subsequent proceedings. See Otis Elevator Co. v. Youngerman, 636 So.2d 166 (Fla. 4th DCA 1994); Marion County v. Cavanaugh, 577 So.2d 599 (Fla. Sth DCA 1991). Because the records and tape which we conclude should have been admitted might also have relevancy on the questions of permanency and causation as well as the amount of damages, all of these issues should be retried. Accordingly, we reverse the final judgment and remand for a new trial on the issues of causation, permanency and damages. Appeal and cross-appeal reversed; remanded for new trial. BLUE, A.C.J.. CASANUEVA, J., and QUINCE, PEGGY A., Associate Judge, Concur. All Citations 746 So.2d 483, 24 Fla. L. Weekly D2014 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 11 of 18Wald v. Grainger, 64 So.3d 1201 (2011) 36 Fla. L. Weekly S211 64 So.3d 1201 Supreme Court of Florida. Howard B. WALD, Jr., Petitioner, ve Athena F. GRAINGER, etc., Respondent. No. SCo8-1143. | May 19, 2011. Synopsis Background: Action was brought against defendant driver to recover for injuries sustained in automobile accident. The Circuit Court, Duval County, Peter J. Fryefield, J., entered judgment on jury verdict in favor of plaintiff in an amount of $1 million. Defendant appealed. The District Court of Appeal, 982 So.2d 42,reversed and remanded. Plaintiff sought review, alleging direct conflict. Holdings: The Supreme Court, Quince, J., held that: [1] jury was not free to reject undisputed expert testimony that plaintiff's thigh injury was permanent; {2] a lack of pain in plaintiffs permanently injured thigh did not preclude award of noneconomic damages, where there was evidence of sensitivity and discomfort; and [3] defendant failed to preserve appellate challenge to verdict form and jury instructions. Quashed and remanded. West Headnotes (13) 1 Damages & Permanent character of injuries and future suffering Determinations about the permanency of an injury are generally made by juries; nonetheless, where the evidence of injury and causation is such that no reasonable inference could support a jury verdict for defendant, 2] BI (4) 6] it is not improper to direct a verdict on the permanency issue for the plaintiff. 3 Cases that cite this headnote Damages & Necessity of proof as to damages in general A plaintiff can establish a prima facie case of permanency of an injury by presenting expert testimony of permanency; once this is done, the burden shifts to the defendant to present countervailing expert testimony, severely impeach the plaintiff's expert, or present other evidence which creates a direct conflict with the plaintiff's evidence. 4 Cases that cite this headnote Trial Operation and Effect of Motion or Request A party moving for a directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the non-moving party. 3 Cases that cite this headnote Trial © Insufficiency to support other verdict; conclusive evidence A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the movant's case as a matter of law and there is no evidence to rebut it. 4 Cases that cite this headnote Appeal and Error & Evidence Appeal and Error Tort cases and personal injuries in general WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 12 of 18Wald v. Grainger, 64 So.3d 1201 (2011) 36 Fla. L. Weekly S211 {61 "1 18] In determining the propriety of a trial court's directed verdict on permanency of an injury, the reviewing court must first determine whether the evidence supporting the plaintiff's claim of permanent injury within a reasonable degree of medical probability met that standard; if so, the court then needs to examine the record to determine if there is any conflicting evidence or inferences on the issue of permanent injury from which the jury could draw a conclusion favorable to the party against whom the directed verdict was entered. 5 Cases that cite this headnote Evidence & Testimony of Experts A jury is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case, including lay testimony. 9 Cases that cite this headnote Damages Permanent character of injury When medical evidence on permanence of injury is undisputed, unimpeached, or not otherwise subject to question based on the other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with It. 1 Cases that cite this headnote Damages & Permanent character of injury Jury's ability to reject undisputed expert testimony that a plaintiff's injury is permanent must be based on some reasonable basis in the evidence; this can include conflicting medical evidence, evidence that impeaches the expert's testimony or calls it into question, 19] (10) such as the failure of the plaintiff to give the medical expert an accurate or complete medical history, conflicting lay testimony or evidence that disputes the injury claim, or the plaintiff's conflicting testimony or self- contradictory statements regarding the injury. 13 Cases that cite this headnote Damages = Permanent character of injury Evidence & Damages Jury was not free, in negligence action arising out of traffic accident, to reject expert testimony that plaintiffs thigh injury was permanent; while plaintiff's and defendant's experts disagreed as to the medical cause of the thigh injury, both experts agreed that plaintiff sustained a permanent injury to his thigh that was causally related to the accident. 4 Cases that cite this headnote Damages & Physical Suffering and Inconvenience Driver's lack of pain in his thigh, permanently injured in motor vehicle accident, did not preclude an award of noneconomic damages; noneconomic damages were not limited to pain, and there was evidence that driver's thigh caused sensitivity and discomfort, especially if he permitted children to sit on his lap. West's F.S.A. § 627.737(2)(b). 1 Cases that cite this headnote Damages & Physical Suffering and Inconvenience Damages Physical illness, impact, or injury;zone of danger As long as part of the bodily injury arising out of a motor vehicle accident involves a permanent injury within a reasonable degree of medical probability, the plaintiff can recover noneconomic damages related to his pain, suffering, mental anguish, and WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 13 of 18Wald v. Grainger, 64 So.3d 1201 (2011) 36 Fla. L. Weekly S211 inconvenience for all of the injuries related to the accident. West's F.S.A. § 627.737(2)(b). 5 Cases that cite this headnote [12] Damages & Physical Suffering and Inconvenience Damages © Physical illness, impact, or injury:zone of danger Pain, suffering, mental anguish and inconvenience are compensable noneconomic damages in a case where part of the bodily injury arising out of a motor vehicle accident involves a permanent injury within a reasonable degree of medical probability. West's F.S.A. § 627.737(2)(b). 4 Cases that cite this headnote [13] Appeal and Error Instructions Defendant driver appealing jury verdict in favor of plaintiff in action arising out of motor vehicle accident failed to preserve for appeal issue of whether verdict form or jury instructions properly gave jury the opportunity to reject the permanency of plaintiff's injuries, where defendant voiced no objection on such ground when asked by trial court if the instructions and verdict form were acceptable. Cases that cite this headnote Attorneys and Law Firms *1203 S. Perry Penland, Jr. and Eric S. Block, Jacksonville, FL, for Petitioner. Susan S. Oosting and J. Stephen O'Hara, Jr. of O'Hara Law Firm, Jacksonville, FL, for Respondent. Howard B. Wald, Jr., seeks review of the decision of the First District Court of Appeal in Grainger v. Wald, 982 So.2d 42 (Fla. Ist DCA 2008), on the ground that it expressly and directly conflicts with decisions of other district courts of appeal and this Court on two questions of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we quash the decision of the First District. FACTUAL AND PROCEDURAL HISTORY Howard Wald, Jr., was involved in a car accident with Sam Gus Felos, who admitted his fault for the accident. ! Wald alleged injuries to his neck, back, right arm, foot, and thigh from the collision. Wald sought damages for his neck and back injuries, but not the thigh injury because it caused no “ongoing chronic pain.” *1204 Because the defendant admitted fault, the only issues the jury had to consider were causation, the permanency of Wald's injuries, and damages. Two doctors testified at trial. Wald's treating physician, Dr. Jackson Tan, stated that Wald's injuries, including his neck, back, tight elbow, and right thigh injuries, were permanent and connected with the accident. The defendant's expert physician, Dr. Howard Hogshead, testified that Wald had permanent right thigh numbness and, giving Wald “the benefit of the doubt,” that condition was related to the collision. Dr. Hogshead also stated his opinion that Wald did not sustain permanent neck or back injury as a result of the accident. Wald moved for directed verdict on the issue of permanency. Over the defendant's objection, the trial court granted the motion for directed verdict on permanency, but only as to the right thigh condition. The trial court instructed the defendant that he was free to argue to the jury that none of Wald's other injuries were permanent. The trial court instructed the jury that it was free to weigh, accept, or reject the opinions of any expert witness. However, there was no reference to permanency in the verdict form or in the jury instructions. The jury entered judgment for Wald and awarded him over $1 million in damages for his injuries. Opinion QUINCE, J On appeal, the First District Court reversed the final 7 judgment, finding that the trial court committed reversible error by directing a verdict as to permanency as that was WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 E-Filed with MCCC - 2013CA004462AX- 5/23/2019 8:44 AM - PG 14 of 18Wald v. Grainger, 64 So.3d 1201 (2011) 36 Fla. L. Weekly $271 a jury question. The First District explained that a jury is free to weigh the credibility of expert witnesses as it does any other witness and to reject any testimony regarding permanency, including uncontradicted testimony. The First District concluded that there was conflicting testimony as to the permanency of Wald's neck and back injuries and ambivalent testimony as to the permanency of the thigh injury, for which Wald did not even seek damages. Grainger v. Wald, 982 So.2d 42 (Fla. Ist DCA 2008). Wald sought review of the First District's decision in Grainger based on alleged express and direct conflict with decisions of other district courts and this Court on two points of law, whether permanency is a jury question and whether the jury can reject uncontradicted expert testimony. This Court granted review and heard oral argument from the parties. ANALYSIS In the instant case, the First District concluded that the trial court erred as matter of law by directing a verdict on issue of permanency, as “permanency is a jury question.” Grainger, 982 So.2d at 43. The First District also concluded that “the jury was free to reject any testimony regarding permanency, including uncontradicted testimony.” Jd. However, we conclude that these statements by the First District are overly broad and do not accurately reflect Florida law on these issues. tl 2] injury are generally made by juries. See State Farm Mut. Auto. Ins. Co. v. Orr, 660 So.2d 1061 (Fla. 4th DCA 1995). Nonetheless, where the evidence of injury and causation is such that no reasonable inference could support a jury verdict for the defendant, it is not improper to direct a verdict on the permanency issue for the plaintiff. Za. at 1063. A plaintiff can establish a prima facie case of permanency by presenting expert testimony of permanency. Once this is done, the burden shifts to the defendant to present countervailing expert testimony, severely impeach the plaintiff's expert, or present other evidence which creates a direct conflict with the plaintiff's evidence. See *1205 Evans v. Montenegro, 728 So.2d 270, 271 (Fla. 3d DCA 1999) (holding that a directed verdict for the plaintiff on permanency was proper where the defendant did not impeach the plaintiff's expert and Determinations about the permanency of an did not present conflicting evidence on permanency). If the defendant succeeds in this endeavor, a jury question is presented; if not, a directed verdict on permanency is appropriate. Id. 13] [4] A party moving for a directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the non-moving party. See Williamson v. Superior Ins. Co., 746 So.2d 483, 485 (Fla. 2d DCA 1999). A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the movant's case as a matter of law and there is no evidence to rebut it. Orr, 660 So.2d at 1062. [5] In determining the propriety of a trial court's directed verdict on permanency, the reviewing court must “first determine whether the evidence supporting [the plaintiff's] claim of permanent injury within a reasonable degree of medical probability met that standard. If so, [the court] then need [s] to examine the record to determine if there is any conflicting evidence or inferences on the issue of permanent injury from which the jury could draw a conclusion favorable to the party against whom the directed verdict was entered.” Id. (finding neither contradictory nor conflicting expert medical evidence and no other evidence that would furnish the jury a reasonable basis upon which to disbelieve the plaintiff's complaints of pain or to reject the opinion testimony of the medical experts). [6] [7] A jury is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualificati