DONNA HOLMES, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLEE
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Donna Holmes appealed the denial of her motion for directed verdict on the issue of permanent injury in a personal injury action under Florida's no-fault insurance statute. The court reversed, holding that State Farm failed to meet its burden of presenting countervailing expert testimony, severely impeaching Holmes' experts, or presenting other direct conflicting evidence to carry the permanency issue to the jury.
The trial court erred in denying the motion for directed verdict on permanency. When permanency is supported by expert testimony, the opponent must either present countervailing expert testimony, severely impeach the proponent's expert, or present other evidence creating direct conflict. State Farm satisfied none of these requirements regarding the TMJ injury.
[1] A party opposing a claim of permanency must present countervailing expert testimony, severely impeach the proponent's expert, or offer other evidence creating a direct co…
[2] A trial court should grant a directed verdict on the issue of permanency when the proponent of permanency is supported by expert testimony and the opponent fails to prese…
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the three-part test that State Farm must satisfy to carry the permanency issue to the jury
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Join FLexlaw to unlock all legal intelligenceMs. Holmes was struck from behind by a truck insured by State Farm. She presented expert testimony that she suffered permanent injuries to her back an…
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RYDER, Acting Chief Judge.
Donna Holmes challenges the trial court’s final judgment in this personal injury action brought pursuant to section 627.737(2), Florida Statutes (1991). The final judgment was entered pursuant to the jury’s verdict that State Farm’s insured’s negligence caused Ms. Holmes’ injury, but that she did not sustain a permanent injury. We agree with her contention that the trial court erred in denying her motion for a directed verdict on permanency, and, therefore, we reverse.
Ms. Holmes was injured when she was struck from behind by a truck. She presented expert testimony at trial that she had suffered permanent injuries to her back and temporomandibular joint (TMJ). There was conflicting testimony concerning the permanency of the back injury. At the close of the evidence and again after the verdict’s return, she moved for a directed verdict on the ground that the only expert medical evidence as to the TMJ injury was that it was permanent. The sole issue raised on appeal is the correctness of the trial court’s denial of the motion for directed verdict as to the TMJ injury.
Ms. Holmes’ expert witnesses opined that, based on a reasonable degree of medical probability, the accident caused her TMJ injury and that the injury was permanent. State Farm presented no expert witnesses concerning the permanency of the TMJ injury. During cross-examination of Dr. Chuong, one of plaintiffs expert witnesses, State Farm elicited testimony that Ms. Holmes suffered from severe preexisting dental problems. After her dental problems were cleared up, she still had TMJ problems. Also, he generally discussed causes of TMJ injury other than trauma, including dental problems. Photographic exhibits introduced by State Farm showed that the collision was not severe, according to Ms. Holmes’ attorney.
“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.” Jarrell v. Churm, 611 So. 2d 69, 70 (Fla. 4th DCA 1992). State Farm has not satisfied this test.
State Farm, citing Weygant v. Fort Myers Lincoln Mercury, Inc., 609 So. 2d 714 (Fla.2d DCA 1992), argues that there was conflicting evidence from which the jury could have found that the injuries were not the result of the insured’s negligence regardless of the medical testimony in the case. The testimony in Weygant, however, included plaintiffs own testimony indicating that her injuries were not permanent in nature and that they were not caused by the auto accident. There was evidence that Weygant had suffered similar injuries as a result of other incidents occurring both before and after the accident in question.
State Farm also cited Easkold v. Rhodes, 614 So. 2d 495 (Fla.1993), which held that the jury was free to determine the experts’ credibility and to decide the weight of that testimony in the face of conflicting lay evidence. There, the conflicting lay evidence consisted of plaintiffs own contradictory depositions from which the jury could have concluded that she did not accurately report her medical history to the medical experts.
We distinguish the facts of the Weygant and Easkold decisions where the conflicting evidence directly addressed the question of permanency, causation and the plaintiffs credibility from the instant case. State Farm’s assertion that conflicts in the evidence support an affirmance is based upon conflicts both minor and indirect. Moreover, State Farm elaborated on the nature of the “conflicting” testimony. None of the plaintiffs expert witnesses was severely impeached. Confronted with this lack of evidence to support the requirements of the Jarrell decision, we must reverse.
We therefore reverse and remand with directions to enter a directed verdict for plaintiff on the issue of permanency and for a trial on damages.
Reversed and remanded.
HALL and PATTERSON, JJ., concur.
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Campbell v. Griffith, 971 So. 2d 232 (Fla. 2d DCA 2008)…or not otherwise subject to question based on other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it. See, e.g., Holmes v. State Farm Mut. Auto. Ins. Co., 624 So. 2d 824, 825 (Fla. 2d DCA 1993); Jarrell v. Churm, 611 So. 2d 69, 70 (Fla. 4th DCA 1992). Here, both Campbell’s treating doctor and the defense medical expert testified that her subclavian aneurysm was a permanent injury caused by the auto accident and tha…
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James R. McELROY for the Estate of Mable E. Christensen v. Gaylord C. Perry, 753 So. 2d 121 (Fla. 2d DCA 2000)…ed verdict by presenting countervailing expert testimony, severely impeaching the plaintiffs expert, or presenting other evidence which creates a direct conflict with the plaintiffs evidence. See id. (citing Holmes v. State Farm Mut. Auto. Ins. Co., 624 So. 2d 824 (Fla. 2d DCA 1993), and Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992)). Here, Perry established a prima facie case by presenting expert testimony as to permanent injury. McElroy, however, presented countervailing expert testimony. Testifying…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Easkold v. Rhodes, 614 So. 2d 495 (Fla. 1993)
- Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992)
- Millie Weygant v. Fort Myers Lincoln Mercury, Inc., 609 So. 2d 714 (Fla. 2d DCA 1992)