Opinion
No. 2D98-1059.
Opinion filed March 29, 2000.
Appeal from the Circuit Court for Collier County; Daniel R. Monaco, Judge.
Michael C. Tice, Fort Myers, for Appellant.
Mark A. Boyle of Fink Boyle, P.A., Fort Myers, for Appellee.
William Sutton challenges the final judgment entered pursuant to a jury verdict which found that Bernice Grossteiner's negligence caused Sutton's injuries, but that he did not sustain permanent injuries as a result of the accident. Sutton alleges that the trial court erred in denying his motion for directed verdict on the issue of permanency and his motion for new trial. We agree and reverse.
Sutton was injured when his vehicle and Grossteiner's vehicle collided on September 19, 1994. At trial, Grossteiner admitted that she was negligent in causing or contributing to the accident. On the date of the accident, Sutton was treated for his injuries by emergency medical services at the accident scene and emergency room personnel at Naples Community Hospital. He was experiencing shoulder and neck pain but did not complain of back pain. Sutton testified at trial that he began to experience back pain "days to weeks" after the accident but received no further treatment until he was treated by a chiropractor on November 29, 1994, seventy-one days after the accident. He eventually saw Dr. Joseph Kandel, a neurologist, who diagnosed Sutton as suffering from a herniated disk. Sutton also saw a Dr. Sypert, a neurosurgeon, for a second opinion. In May 1995, Sutton had back surgery performed by a third physician, Dr. Lusk, a neurosurgeon.
At trial Sutton presented the testimony of the three physicians, each of whom opined that Sutton's back injury was permanent. Their opinions were based, in part, on the medical history related to them by Sutton that he had not experienced any back problems prior to the accident, and that he has suffered from back pain and limited mobility since the accident. Grossteiner presented no expert medical testimony to contradict Sutton's evidence on the issue of permanency. Instead, Grossteiner made a general attack on the credibility of Sutton and his expert witnesses. Grossteiner cited the following: (1) Sutton waited seventy-one days after the accident before seeking further treatment; (2) Sutton's experts relied heavily on the medical history provided by Sutton in reaching their opinions; and (3) Sutton's counsel and his medical experts had a client-referral relationship.
Sutton's motion for directed verdict on the issue of permanency was denied. The jury found that Grossteiner's negligence was "a legal cause of loss, injury or damage" to Sutton but found that Sutton was also negligent and apportioned fault at sixty percent for Grossteiner and forty percent for Sutton. The jury found Sutton's damages related to medical expenses to be $939 but determined that Sutton had not "sustain[ed] a permanent injury within a reasonable degree of medical probability, as a result of the accident dated September 19, 1994[.]" Sutton moved for a new trial based upon the court's denial of his motion for a directed verdict.
In moving for a directed verdict, a party admits the truth of all facts in evidence as well as every inference and conclusion in favor of the opposing party that can be drawn from that evidence. 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). Moreover,
When the proponent of permanency supports that hypothesis with expert testimony, the opponent of permanency, in order to carry the issue to the jury, must either: (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.
Holmes v. State Farm Mut. Auto. Ins. Co., 624 So.2d 824, 825 (Fla. 2d DCA 1993) (emphasis added) (quoting Jarrell v. Churm, 611 So.2d 69, 70 (Fla. 4th DCA 1992)).
In this case, the trial court should have granted Sutton's motion for directed verdict on the issue of permanency. While a jury is free to "accept or reject the testimony of a medical expert just as it may accept or reject that of any other expert," Shaw v. Puleo, 159 So.2d 641, 644 (Fla. 1964), it is not free to reject uncontroverted medical testimony indicating a permanent injury. See Williamson v. Superior Ins. Co., 24 Fla. L. Weekly D2014 (Fla. 2d DCA Aug. 25, 1999). Where, as here, the evidence of permanency is such that no reasonable inference could be drawn that would support a jury verdict for the defendant, a directed verdict for the plaintiff on the issue of permanency should be granted. See Evans v. Montenegro, 728 So.2d 270 (Fla. 3d DCA 1999); State Farm Mut. Auto. Ins. Co. v. Orr, 660 So.2d 1061 (Fla. 4th DCA 1995). Here, Grossteiner's general attack on the credibility of Sutton's witnesses was not sufficient to "severely" impeach Sutton's experts, nor was it sufficient to "directly" conflict with Sutton's evidence on the issue of permanency. See Holmes, 624 So.2d at 825. Sutton therefore was entitled to a directed verdict on the issue of permanency.
We therefore reverse the denial of Sutton's motion for directed verdict and remand this case for a new trial on the issue of damages related to the permanency of Sutton's injuries.
Reversed and remanded.
NORTHCUTT, A.C.J., and CASANUEVA, J., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.