ROBERT C. EMANUELE AND HOME ORTHOPAEDICS AND X-RAY SERVICE OF BROWARD, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
ANDREA PERDUE AND WILLIAM PERDUE, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
An insurance company and medical service provider appealed a trial court's order granting a new trial in a personal injury case. The appellate court reversed, holding that the trial court abused its discretion by setting aside a jury verdict that found the plaintiff failed to sustain a permanent injury under Florida's no-fault insurance statute, despite awarding all past medical expenses including TMJ surgery.
The court reversed the new trial order, holding that the trial court abused its discretion. The jury's verdict was supported by conflicting medical expert testimony on the issue of permanency and should not have been overturned by the trial court.
[1] A trial court abuses its discretion by granting a new trial when the jury's determination of no permanent injury is supported by conflicting medical expert testimony.
[2] A jury may find that a plaintiff did not sustain a permanent injury, even if medical testimony indicates a surgical procedure results in a permanent impairment, if there…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“we believe a fair reading of the expert's testimony would permit a jury to conclude that the appellee did not suffer permanent effects from her automobile accident.”
Establishes that conflicting expert testimony existed and the jury could reasonably interpret it to support the no-permanent-injury finding
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAndrea Perdue was injured in a car accident and underwent temporomandibular joint (TMJ) surgery. The jury awarded her all past medical bills related t…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Jury'S Role As Trier Of Fact cases and more on FLexlaw
SHAHOOD, Judge.
We reverse the trial court’s order granting appellee’s motion for new trial finding that the trial court abused its discretion in ordering a new trial after the jury determined that appellee did not sustain a permanent injury within the meaning of section 627.737(2), Florida Statutes (1995).
In this case, the jury awarded appellee (Andrea Perdue) all past medical bills incurred since her car accident, including medical bills incurred from temporomandibular joint surgery (TMJ), but awarded zero for pain and suffering after finding that she did not sustain a permanent injury. In granting her motion for new trial, the trial court concluded that “[hjaving determined that the medical bills related to the temporomandibu-lar joint surgery was a reasonable and necessary expense incurred as a result of the accident, the jury had no choice but to find that the Plaintiff was permanently injured as the uncontradicted medical testimony was that a surgical procedure such as the TMJ surgery performed on the Plaintiff does result in a permanent impairment.”
A review of the record reveals that there was conflicting medical expert opinion with regard to permanency. Appellees contend that notwithstanding appellant’s medical expert’s testimony on direct examination that appellee did not sustain a permanent injury as a result of her automobile accident, his testimony on cross-examination that the TMJ surgery is “rateable as a permanent impairment” was in effect a concession as to permanency as a result of the accident. We disagree. As in Allstate Insurance Co. v. Edenfield, 543 So. 2d 874 (Fla. 4th DCA 1989), “we believe a fail’ reading of the expert’s testimony would permit a jury to conclude that the appellee did not suffer permanent effects from her automobile accident.” As such, the jury, as the trier of fact, should have been permitted to resolve this issue. Id. The trial court cannot become the “seventh juror with veto power.” See McNair v. Davis, 518 So. 2d 416 (Fla. 2d DCA 1988). Accordingly, we direct that the original jury verdict be reinstated.
REVERSED AND REMANDED WITH DIRECTIONS.
STONE and WARNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Selma Gross v. Lyons, 721 So. 2d 304 (Fla. 4th DCA 1998)…d after the first accident were offset by her personal injury protection benefits and that she sustained no permanent injury as a result of the first accident. See Colvin v. Williams, 564 So. 2d 1249 (Fla. 4th DCA 1990); see also Emanuele v. Perdue, 693 So. 2d 1071 (Fla. 4th DCA 1997). We reverse and remand for a new trial on all issues other than defendant’s negligence for causing the accident, which defendant admitted. REVERSED AND REMANDED FOR A NEW TRIAL. DELL, J., concurs. WARNER, J., concurs in part…
-
Kipp Cooper & Classic Plumbing of Brevard, LLC v. Gonzalez, 374 So. 3d 841 (Fla. 5th DCA 2023)…s, 260 So. 3d 1139, 1146 (Fla. 1st DCA 2018) (noting ample evidence to support jury’s finding of no permanent injury including neurosurgeon’s testimony that surgeries were successful and plaintiff was continuing to improve); Emanuele v. Perdue, 693 So. 2d 1071 (Fla. 4th DCA 1997) (holding that as a result of auto accident, plaintiff had TMJ surgery, defense medical expert testified that plaintiff did not sustain a permanent injury, and “a fair reading of the expert’s testimony would permit a jury to co…
-
Lippman v. Mendes, 764 So. 2d 621 (Fla. 4th DCA 2000)…PER CURIAM. AFFIRMED. See Emanuele v. Perdue, 693 So. 2d 1071 (Fla. 4th DCA 1997). DELL, STONE and TAYLOR, JJ., concur.…
Authorities Cited
- Marjane McNAIR v. Donato A. Davis, 518 So. 2d 416 (Fla. 2d DCA 1988)
- Allstate Ins. Co. v. Edenfield, 543 So. 2d 874 (Fla. 4th DCA 1989)