BETTY A. EVANS, APPELLANT,
v.
ROBERTO A. MONTENEGRO, APPELLEE
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Betty Evans appeals a jury verdict in a personal injury automobile accident case. The trial court entered a directed verdict on the permanency of plaintiff's injury after both expert witnesses agreed the injury was permanent, differing only on the degree of impairment. The appellate court affirms, holding that the defendant failed to present sufficient evidence to create a jury question on permanency.
The directed verdict on permanency was proper. Once a plaintiff establishes a prima facie case of permanency through expert testimony, the burden shifts to the defendant to present countervailing expert testimony, severely impeach the plaintiff's expert, or present other conflicting evidence. Here, the defendant's own expert also testified to permanency, and she neither severely impeached the plaintiff's expert nor presented direct conflicting evidence, so no jury question was created.
[1] A directed verdict on the issue of injury permanency is appropriate when no reasonable inference could support a jury verdict for the defendant.
[2] A plaintiff establishes a prima facie case of permanency by presenting expert testimony of permanency, shifting the burden to the defendant to present countervailing evid…
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Join FLexlaw to unlock all legal intelligence“A plaintiff can establish a prima facie case of permanency by presenting expert testimony of permanency. 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.”
Establishes the legal standard and burden-shifting framework for permanency cases in personal injury litigation.
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Join FLexlaw to unlock all legal intelligenceRoberto Montenegro sued Betty Evans for injuries from an automobile accident. Both the plaintiff's and defendant's medical experts testified that Mont…
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GERSTEN, J.
Betty A. Evans, the defendant below (“defendant”), appeals a jury verdict in favor of Roberto A. Montenegro, the plaintiff below (“plaintiff’), in a personal injury action. Because we find no error in the trial court’s entry of a directed verdict on the issue of injury permanency, we affirm.
The plaintiff sued the defendant for injuries arising from an automobile accident. The plaintiffs medical expert testified that the plaintiff sustained a permanent injury resulting in a nine to ten percent permanent impairment rating. The defendant countered with her own expert who testified that the plaintiff sustained a permanent injury, but assigned only a one percent permanent impairment rating.
Because there was no conflict in the expert testimony regarding whether the plaintiff sustained a permanent injury, the trial court directed a verdict in favor of the plaintiff on the issue of permanency. The issues of liability and degree of damages were then submitted to the jury, which returned a verdict in favor of the plaintiff.
On appeal, the defendant challenges the propriety of the directed verdict on the permanency issue. She argues that, although there was no direct evidence contradicting the experts’ testimony, the jury was free to disregard such testimony, see Easkold v. Rhodes, 614 So. 2d 495 (Fla.1993) (holding that the jury could disregard a medical expert’s opinion where there was evidence that the plaintiff did not accurately report her medical history to that expert, and the expert relied upon such reporting as the basis for the expert’s opinion), and should have been permitted to do so. She contends that it would be rational for the jury to disregard this testimony because the evidence showed that the plaintiffs expert was not board certified; that the plaintiff did not seek additional medical treatment following arthroscopic surgery; that the plaintiff seems to have maintained an active lifestyle, and; that the plaintiff did not even make a claim of lost earning capacity due to the injury. We disagree.
Permanency determinations are generally made by juries. See State Farm Mut. Auto. Ins. Co. v. Orr, 660 So. 2d 1061 (Fla. 4th DCA 1995). Nonetheless, where the evidence of injury and causation is such that no reasonable inference could support a jury verdict for the defendant, it is not improper to direct a verdict on the permanency issue for the plaintiff. See State Farm Mut. Auto. Ins. Co. v. Orr, 660 So. 2d at 1063.
A plaintiff can establish a prima facie case of permanency by presenting expert testimony of permanency. 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. See Holmes v. State Farm Mut. Auto. Ins. Co., 624 So. 2d 824 (Fla. 2d DCA 1993); Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992). If the defendant succeeds in this endeavor, a jury question is presented; if not, a directed verdict on permanency is appropriate.
Here, the defendant clearly failed to meet her burden. Although the defendant did put on expert testimony, that testimony also established that the plaintiffs injury was permanent. Furthermore, the defendant neither severely impeached the plaintiffs expert nor presented other conflicting evidence on the issue of permanency. The evidence relied upon by the defendant as a basis for this appeal was minor and indirect. See State Farm Mut. Auto. Ins. Co. v. Orr, 660 So. 2d at 1063; Allstate Ins. Co. v. Thomas, 637 So. 2d 1008 (Fla. 4th DCA 1994); Holmes v. State Farm Mut. Auto. Ins. Co., 624 So. 2d at 826. Accordingly, the final judgment is affirmed in all respects.
Affirmed.
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Wald v. Athena F. Grainger, 64 So. 3d 1201 (Fla. 2011)…nce this is done, the burden shifts to the defendant to present countervailing expert testimony, severely impeach the plaintiffs expert, or present other evidence which creates a direct conflict with the plaintiffs evidence. See Evans v. Montenegro, 728 So. 2d 270, 271 [*1205] (Fla. 3d DCA 1999) (holding that a directed verdict for the plaintiff on permanency was proper where the defendant did not impeach the plaintiffs expert and did not present conflicting evidence on permanency). If the defendant succeeds…
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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)…p]ermanency determinations are generally made by juries,” a directed verdict on permanency is proper where the evidence of injury and causation is such that no reasonable inference could support a jury verdict for the defendant. Evans v. Montenegro, 728 So. 2d 270, 271 (Fla. 3d DCA 1999). A plaintiff establishes a prima facie case of permanency by presenting expert testimony of permanency. The burden then shifts to the defendant to defeat the directed verdict by presenting countervailing expert testimony, sev…
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Anderson A. Medina, Sr. v. Peralta, 802 So. 2d 376 (Fla. 3d DCA 2001)…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) sever…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Easkold v. Rhodes, 614 So. 2d 495 (Fla. 1993)
- State Farm Mut. Auto. Ins. Co. v. ORR, 660 So. 2d 1061 (Fla. 4th DCA 1995)
- Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992)
- George v. State, 624 So. 2d 824 (Fla. 2d DCA 1993)
- Holmes v. State Farm Mut. Auto. Ins. Co., 624 So. 2d 824 (Fla. 2d DCA 1993)
- Allstate Ins. Co. v. Thomas, 637 So. 2d 1008 (Fla. 4th DCA 1994)