Medina v. Peralta

• Decision Date: 07 November 2001
• Docket Number: No. 3D00-2315, No. 3D00-2110.
• Citation: 802 So.2d 376
• Parties: Anderson A. MEDINA, Sr., et al., Appellants, v. David PERALTA, Appellee.
• Court: Florida District Court of Appeals

802 So.2d 376

Anderson A. MEDINA, Sr., et al., Appellants, v. David PERALTA, Appellee.

Nos. 3D00-2315, 3D00-2110.

District Court of Appeal of Florida, Third District.

November 7, 2001.

Rehearing Denied December 14, 2001.

Angones, Hunter, McClure, Lynch, Williams & Garcia, and Christopher J. Lynch, Miami, for appellants.

Beckham & Beckham, and Pamela Beckham, Miami, for appellee.

Before JORGENSON, COPE, and RAMIREZ, JJ.

RAMIREZ, J.

The defendants appeal from an adverse jury verdict in a personal injury case after the trial court directed a verdict on the permanency of the plaintiffs injuries. Because there was substantial conflict in the evidence regarding the plaintiffs injuries, we reverse.

On April 8, 1990, David Peralta was injured in an automobile accident with a vehicle driven by Jorge Perez and owned by Anderson Medina. Peralta has under-insured motorist coverage with Allstate. Medina and Perez are also insured by Allstate. (Hereafter, Medina, Perez, and Allstate will be collectively referred to as "defendants"). Peralta had also been involved in an automobile accident in 1978.

Shortly after the April, 1990, accident, Peralta complained of pain in his back, neck, and shoulder. In June of 1990, Peralta filled out an application for a job in New York, in which he indicated that he did not have any physical problems. He moved to New York, where he received treatment from a neurologist and an orthopedist. His orthopedist wrote a report dated September 9, 1991, in which he noted evidence of partial permanent disability of the cervical spine and lumbosacral spine, each of which appear to be related to the accident of April 8, 1990.

Peralta returned to Miami and, in November of 1994, after suffering an accident on a stair climber home exercise device, he resumed his medical treatment with Dr. Barry Burak, a chiropractor. After ordering two MRIs, Dr. Burak found that Peralta had a permanent disability that amounted to a fourteen to fifteen percent permanent impairment of the body as a whole. These MRIs were also reviewed by Dr. Robert Elias, a radiologist, who testified that Peralta had two distinct areas of spinal injury, one in the neck and one in the lower back. On cross-examination, Dr. Elias said that he found no desiccation, which he would have expected to see on an MRI taken in 1995 if it was caused by an accident that occurred in 1990. He did conclude that the cervical herniation was a result of the 1990 accident. An MRI taken in 1998 demonstrated desiccation. When asked whether the absence of desiccation in 1995 and the presence of desiccation in 1998 indicated that the trauma which caused the herniation was as recent as 1994, Dr. Elias could not conclude that there was not any new trauma. Peralta was also referred to Dr. Lustgarten, a neurosurgeon, in 1995. Neither Dr. Burak nor Dr. Lustgarten was made aware of Peralta's 1978 automobile accident or the 1994 stair climber incident.

The evidence at trial included a surveillance film that was taken of Peralta in which he could be seen lifting concrete cinder blocks to shoulder level, lifting cast iron pipes, bending, and working in trenches.

At trial, the issues before the jury were permanency and causation of injury, and the amount of damages. At the close of evidence, Peralta moved for a directed verdict on the issue of permanency. The trial court granted the motion and the jury returned a verdict in the amount of $810,961.06, including $300,000 for future medical expenses. Defendants filed a motion for remittitur, which was denied. Defendant Allstate also filed a motion to limit the judgment against it to $100,000, the coverage limits of Peralta's policy. That motion was also denied.

"A directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, viewing the evidence in a light most favorable to the nonmoving party." Blaustein v. Commodore Cruise Line, Ltd., 627 So.2d 131 (Fla. 3d DCA 1993) (quoting Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 941 (Fla. 3d DCA 1987)). We recently stated in Evans v. Montenegro, 728 So.2d 270, 271 (Fla. 3d DCA 1999), that a plaintiff can establish a prima facie case of permanency through the presentation of expert testimony. "Once this is done, the burden shifts to the defendant to: (1) present countervailing expert testimony; (2) severely impeach the proponent's expert; or (3) present other evidence which creates a direct conflict with the proponent's evidence." Id.

Peralta produced sufficient evidence to shift the burden to the defendants. In an attempt to meet this burden, the defendants presented evidence of Peralta's lack of veracity in relating his medical...