Boyles v. A&G Concrete Pools, Inc.

• Decision Date: 02 July 2014
• Docket Number: No. 4D12–3334.,4D12–3334.
• Citation: 149 So.3d 39
• Parties: Kevan BOYLES, Esquire, as limited guardian of the property of Roman Vonkomarnicki, III, Appellant, v. A & G CONCRETE POOLS, INC., and James E. Preece, Appellees.
• Court: Florida District Court of Appeals

149 So.3d 39

Kevan BOYLES, Esquire, as limited guardian of the property of Roman Vonkomarnicki, III, Appellant

v.A & G CONCRETE POOLS, INC., and James E. Preece, Appellees.

No. 4D12–3334.

District Court of Appeal of Florida, Fourth District.

July 2, 2014.

Rehearing En Banc Denied Oct. 8, 2014.

Bard D. Rockenbach and Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach; Steven Mitchel and Christopher I. Pezon of Steinger, Iscoe, Greene & McAfee, Fort Lauderdale, for appellant.

John A. Wilkerson of John A. Wilkerson, P.A., Daytona Beach, for appellees.

Opinion

WARNER, J.

Appellant challenges a final judgment for the appellee in his personal injury action. He claims that the court erred when it admitted a physician's testimony that the surgery performed on appellant was unnecessary. He also argues that the court erred in denying his motion for new trial, because liability was admitted and appellant had suffered at least some injury as a result of the accident giving rise to his claim. As to the admission of evidence, we hold that the issue was not properly preserved. As to the denial of the motion for new trial, the evidence on liability and damages was not uncontradicted, and the expert's opinions on the plaintiff's injuries were discredited by plaintiff's own lack of credibility. Therefore, the trial court did not abuse its discretion in denying the motion for new trial.

In February 2008, plaintiff was the front seat passenger in a utility truck driven by plaintiff's co-worker, Mr. Poole, when it was rear-ended by a truck owned by A & G Concrete Pools and driven by one of its employees, Mr. Preece. The accident occurred after the utility truck was stopped for a red light with the A & G truck stopped behind it. When the light turned green, both trucks began to drive forward, and Preece merged left because the lane he was in was ending. A vehicle in front of the utility truck came to a sudden stop after crossing the intersection, forcing Poole to stop. Preece was traveling at 30 mph and was looking to merge into traffic. When he looked forward, the utility truck was stopped, and he realized he would not be able to stop in time. He hit his brakes and swerved, but nonetheless collided with the rear of the utility truck. Preece testified that he never saw brake lights or reflectors on the truck prior to impact. Photographs of the utility truck showed that the taillights were covered in mud.

At the time of the collision, plaintiff testified that his body was thrust forward, and that he hit his head on the dashboard. He complained of pain at the accident scene. A paramedic, who arrived at the scene and evaluated the plaintiff, testified that plaintiff told him that he had been involved in an automobile accident in 2001 and had suffered four herniated discs

as a result. Plaintiff was transported to the emergency room but was released. Shortly thereafter, he was referred by his attorney to a chiropractor for treatment, and he told the doctor that he had not previously experienced problems with his neck or back. He continued to see the chiropractor for about four months.

When he did not improve, he was referred to Dr. Katzman, an orthopedic surgeon. He complained of neck and back pain but told the doctor that he had never had any injuries to his neck. When Dr. Katzman later discovered that plaintiff had encountered back problems in 2001, plaintiff maintained that the problems had been resolved, and that for at least two years prior to the 2008 accident he had not had any problems with or treatment for his back or neck.

After therapy and pain shots failed to relieve plaintiff's reported symptoms, Dr. Katzman performed a lumbar procedure in November of 2008 and a cervical procedure in January 2009, which the doctor testified were related to injuries sustained in the 2008 accident. The lumbar procedure was successful, but the cervical operation on his neck was not.

Plaintiff then went to see Dr. Dare, a neurosurgeon. During the initial evaluation, plaintiff did not inform Dr. Dare about the 2001 car accidents or any other treatments for back pain that he had received over the years. When Dr. Dare later received medical records from plaintiff's attorney revealing a prior medical and injury history, he questioned plaintiff, who responded that he had returned to normal by the time of the 2008 accident. Dr. Dare testified: “What he told me at the time was that he was not suffering from neck pain or seeking active treatment for neck and/or back pain at the time of his accident.” In reviewing plaintiff's subjective complaints as well as the MRI tests taken after the accident, Dr. Dare concluded that the 2008 accident caused a worsening of his back weakness, which had necessitated surgery. Dr. Dare also concluded that his neck condition was caused solely by the 2008 accident. Dr. Dare performed additional surgery on the plaintiff, including both neck and back surgery. When Dr. Dare examined plaintiff for the last time, nearly three years after the surgery, his condition had improved.

Contrary to his representations to Drs. Katzman and Dare, the plaintiff had been injured in two accidents in 2001 and had continued to encounter back pain and neck pain as a result. Following the first motor vehicle crash in 2001, he was treated by an urgent care clinic physician for low back pain. To this doctor, plaintiff complained of significant pain in the neck as well as the low back. The doctor prescribed Lorcet

and Oxycontin, an addictive narcotic pain medication, as well as giving him trigger point injections. As plaintiff continued to complain of uncontrolled pain, the doctor increased the Oxycontin dosage. The doctor ordered an MRI of his back which showed a herniated disc

in the lumbar region of his lower back. Although the neck MRI did not show a herniation, it was taken prior to the second accident in 2001.

A variety of other medical records showed the plaintiff made multiple complaints of pain to other medical providers. In 2002, plaintiff reported neck pain and low back pain. He saw a chiropractor from June through November 2005 to whom he complained of severe low back pain. He saw two other doctors in 2006, to whom he reported back and neck problems since his 2001 accidents. In December 2006, a nurse's note on a medical record stated that plaintiff reported that prolonged standing made his back hurt.

His co-workers also reported that he complained of back pain from the prior accident. One of them testified that he was taking pills three times a day for back pain before the accident in this case.

Dr. Schumacher performed a compulsory medical examination (“CME”) of the plaintiff at the defendants' request. Plaintiff's physical examination showed normal neurological findings and no signs of spinal cord compression

, muscle atrophy, or loss of any objective neurologic function. He reviewed the cervical MRI films taken within a month of the 2008 accident and prior to surgery. He opined that the MRI revealed mild degenerative changes but no evidence of trauma or disruption of the discs. He also did not see any evidence of trauma on the lumbar MRI. When asked whether or not the plaintiff suffered a soft tissue injury in the accident of 2008, he responded: “I would say yes, but that comes down to subjectivity and the word of the person that gives it to you.”

The court denied a motion for directed verdict on liability. During closing argument, defense counsel initially conceded that Preece was negligent but then backtracked later in his argument, concluding that while Preece had stated that he felt responsible, he also could not have seen the taillights. Defense counsel asked the jury to be the judge of how much Poole, as driver of the utility truck, contributed to the accident, since the lights of the truck were covered in mud and Poole slammed on his brakes to come to a sudden stop.

After closing argument, the jury was instructed on both liability and damages. They returned a verdict in which they checked “no” to the question “Was there negligence on the part of [Preece] which was a legal cause of loss, injury or damage to [Plaintiff]?” Plaintiff moved for a new trial, claiming that defendants had conceded negligence and all experts agreed that plaintiff had suffered at least some injury from the accident. The trial court denied the motion, prompting this appeal.

I. Admission of Expert Opinion that Surgery was not Necessary

Plaintiff claims that the trial court erred in admitting defense expert Dr. Schumacher's testimony that the surgeries performed on plaintiff were unnecessary, because it had previously granted a motion in limine precluding CME doctors from testifying that surgery was not medically necessary. During his direct testimony, Dr. Schumacher was asked:

Q: ... Based on your examination, your education, experience and training, based on your review of the medical records, do you have an opinion within a reasonable degree of medical probability as to whether this auto accident in 2–5–08 caused or necessitated the neck and back surgeries in 2008 and 2009?

A: Well, all I can say is in my practice, I wouldn't prescribe surgery in this case for someone with back and neck pain and MRI's that don't show anything on there that is pushing on something, or show on examination an objective neurological deficit.

Plaintiff did not object to this testimony. While not raising this in his motion for new trial, he now claims on appeal that this testimony violated an order on a motion in limine. We conclude that the issue was not preserved.

Nine months after suit was filed, plaintiff filed a twenty-two page motion in limine, which appears to be a boilerplate, shotgun approach to various evidentiary issues. The motion sets forth forty-five different categories of evidence or testimony which the plaintiff claimed should not be admitted. Many of the categories had nothing to do with the facts of this case. The trial judge assigned to the case at that time...