Rhodes v. Easkold, 90-3840

• Decision Date: 10 October 1991
• Docket Number: No. 90-3840,90-3840
• Parties: James RHODES, Jr., and Elouise Rhodes, Husband and Wife, Appellants, v. Donna EASKOLD, Appellee. 588 So.2d 267, 16 Fla. L. Week. D2666
• Court: Florida District Court of Appeals

Page 267

588 So.2d 267

James RHODES, Jr., and Elouise Rhodes, Husband and Wife, Appellants, v. Donna EASKOLD, Appellee.

No. 90-3840.

588 So.2d 267, 16 Fla. L. Week. D2666

District Court of Appeal of Florida,

First District.

Oct. 10, 1991.

Rehearing Denied Nov. 27, 1991.

Thomas E. Wheeler, Jr., of Bell, Schuster & Wheeler, P.A., Pensacola, for appellants.

Robert P. Gaines, of Beggs & Lane, Pensacola, for appellee.

SHIVERS, Judge.

Appellants, plaintiffs below, appeal the trial court's denial of their motion for new trial. We reverse, and remand for a new trial.

The record indicates that appellants, James and Elouise Rhodes, were involved in an auto accident with appellee, Donna Easkold, in July 1988. The Rhodeses filed a negligence action against Easkold, seeking damages connected with Elouise Rhodes' injuries. Easkold denied liability, and a jury trial was conducted in 1990.

The depositions of three physicians were presented at the trial. Dr. Flynn, an orthopedic surgeon, first saw Rhodes in August 1988, at which time she was complaining of pain in her neck, back, and left knee, stemming from the auto accident. A CT scan and arthrogram revealed a herniated disc, nerve impairment in the neck and lower back, arthritic changes in the kneecap, and both torn cartilage and a small chip inside the left knee joint. In February 1989, Flynn performed surgery on the kneecap and, during surgery, discovered a fracture. It was Flynn's opinion that the fracture was caused by trauma, "and from the history she [Rhodes] gave me, the only trauma that she knew of or at least she related to me was the auto accident." It was also Flynn's opinion that Rhodes had sustained permanent injuries to her left knee, back, and neck, in the auto accident. He admitted on cross-examination that he had no way of knowing what percentage of Rhodes' impairment had existed before the 1988 auto accident except "what she told me."

Dr. VerVoort performed an IME on Rhodes in November 1989. It was his opinion, after examining her medical records and taking a history from Rhodes, that she had sustained a permanent injury to her neck, low back, and left knee as a result of the July 1988 auto accident. In giving her history to Dr. VerVoort, Rhodes had denied any history of neck or back pain prior to the July 1988 accident. Dr. VerVoort admitted that he was relying upon Rhodes' statements to him to determine that there was some aggravation of her knee from the accident.

In addition, the record contained the deposition of Dr. Jankauskas, who had been Rhodes' regular physician since 1981. Jankauskas' review of medical charts revealed that Rhodes had been examined both at his office and at the county clinic, on several occasions between 1975 and 1986, for various conditions, including numbness in her left leg and toes, pain in her back, numbness and pain on the left side of her head and neck, left leg pain, and pain in the ears and back. Neither Dr. Flynn nor Dr. VerVoort had had access to these medical records at the time of their depositions.

During cross-examination of plaintiff at trial, it was elicited that she had stated in an April 1990 deposition that she had never had any kind of trouble with her back or knees before the 1988 accident, had had no other injuries before the accident that required treatment from a doctor, and had not complained to Dr. Jankauskas about pain in her neck, back, or knees before the accident. In a second deposition in June of 1990, the plaintiff admitted that she had left her job in the maintenance department at Sacred Heart Hospital after she was hit in the leg with a buffer, causing her to fall down. She also admitted that she had "probably had a little backache or headache" at times before the 1988 accident.

After considering the evidence presented, the jury found Easkold to have been negligent, and awarded the Rhodeses a total of $37,000 for past and future medical expenses and loss of earning ability. No damages were awarded on the plaintiff's claims for pain and suffering or loss of consortium, however, and the jury specifically found that plaintiff had not sustained a permanent injury. Plaintiff's motion for new trial, in which she argued that the uncontradicted medical evidence indicated that she had sustained permanent injuries as a result of the auto accident, was denied.

We reverse the trial court's denial of the motion for new trial, on the basis of this court's holding in Morey v. Harper, 541 So.2d 1285 (Fla. 1st DCA), review denied 551 So.2d 461 (Fla.1989). In Morey, this court held that a finding of permanent injury could only be satisfied by expert medical testimony, and stated:

Because the plaintiff cannot satisfy this requirement without presenting expert medical testimony, when the plaintiff does present such testimony and it remains materially uncontradicted, a jury verdict of no permanent injury will be found to be contrary to the manifest weight of the evidence and require the granting of a new trial.... Even though appellee demonstrated that the medical history on which the doctors based their opinion was in part inaccurate, neither doctor opined that the...