Duclos v. Richardson
| Decision Date | 03 June 2013 |
| Docket Number | No. 1D12–0217.,1D12–0217. |
| Citation | 113 So.3d 1001 |
| Court | Florida District Court of Appeals |
| Parties | Michael DUCLOS, Appellant, v. Jeanette RICHARDSON, Appellee. |
OPINION TEXT STARTS HERE
Rhonda B. Boggess, Gina A. Peretti of Taylor, Day, Currie, Boyd & Johnson, and Amy M. McGuiness of Lynn Leonard & Associates, Jacksonville, for Appellant.
Glenn E. Cohen and Rebecca Cozart of Barnes & Cohen and Michael J. Korn of Korn & Zehmer, Jacksonville, for Appellee.
Michael Duclos, the defendant in the automobile negligence action below, appeals the trial court's post-verdict order granting Jeanette Richardson's motion for new trial and directed verdict or JNOV as to permanent injury. Because the reasons given for the JNOV were insufficient grounds upon which to disregard the jury's verdict, the directed verdict or JNOV of permanency is reversed and remanded for entry of judgment in accordance with the verdict.
In the trial proceedings, the plaintiff sought monetary damages for injury to her neck resulting from an automobile accident with the defendant, under section 627.737(2), Florida Statutes. Under the statute, the plaintiff could recover damages in tort from the defendant “arising out of the ... operation, or use of [defendant's insured] motor vehicle only in the event that the injury ... consists in whole or in part of: ... (b) Permanent injury within a reasonable degree of medical probability.” Accordingly, to prove that her injury arose out of the defendant's use of his vehicle and was permanent within a reasonable degree of medical probability, the plaintiff presented the expert testimony of three physicians. These witnesses agreed that the plaintiff's neck injury was permanent.
In response, the defense called Dr. Von Thron, an orthopedic surgeon, licensed in Florida, to testify and present his expert opinion regarding the permanent nature of the plaintiff's neck injury arising out of the accident. Dr. Von Thron had examined the plaintiff in preparation for the lawsuit and reviewed the plaintiff's medical records of treatment she had received over the years. He testified about his observations of the condition and functioning of the plaintiff's neck and generally summarized his review of the plaintiff's medical records pertaining to her neck, including his medical opinion that the plaintiff has arthritis in her neck. The following exchange took place concerning the permanency of Plaintiff's neck injury:
He then explained how he reached this conclusion, based on the records of treatment Plaintiff sought and the reports of other doctors of activities Plaintiff was able to enjoy.
When asked his opinion, within a reasonable degree of medical probability, whether the plaintiff sustained a permanent aggravation of an existing condition, the doctor testified that she did not. He explained this conclusion based on his review of the medical records at the time of the accident and explained how he evaluated permanence of an injury or aggravation. Finally, while agreeing that the plaintiff had neck pain and might continue to need treatment for pain, the doctor opined that the plaintiff did not need future medical treatment “for injuries from this accident.” The surgeon did not change his opinion about the permanence upon cross examination but clarified that in his opinion, the neck injury caused by the accident was temporary and that the plaintiff's more recent neck pain stemmed from another cause, specifically arthritis.
After Dr. Von Thron's testimony, the plaintiff moved for directed verdict on the issue of permanency. After hearing argument, the trial court denied the motion and found that the witness was “still qualified as an expert” and that the jury would determine the weight and credibility of the doctor's expert opinion. At the close of all the evidence, the plaintiff renewed her motion for a directed verdict “on an aggravation of a preexisting condition” or to strike Dr. Von Thron's expert opinion testimony “because there's no basis for it.” The trial court again denied a directed verdict and ruled that the jury could weigh the doctor's opinion against the testimony of the other experts and the documents and surveillance video in evidence.
The jury returned a verdict awarding the plaintiff damages for some of her past medical expenses, as previously directed by the court, but found that her neck injury from the accident was not permanent and awarded nothing for future medical expenses the plaintiff might incur. The plaintiff filed a timely motion for new trial and renewed her motion for a directed verdict or JNOV that the accident had caused the permanent...
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