JANE ROSE AND MARK ROSE, APPELLANTS,
v.
JENNIFER DWIN, A MINOR AND GUILHERME DWIN, HER FATHER, AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, 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.
In this auto accident damages case, the appellate court reversed the trial court's judgment where a jury found no permanent injury despite undisputed expert testimony that the plaintiff sustained a permanent TMJ injury from the accident. The court held that when permanency is supported by uncontradicted expert testimony, a directed verdict on permanency is appropriate rather than submitting the issue to the jury.
The trial court erred in submitting the permanency issue to the jury. When a proponent of permanency supports that position with expert testimony and the opponent presents no countervailing expert testimony, does not severely impeach the proponent's expert, and presents no other evidence creating a direct conflict, a directed verdict on permanency is appropriate.
[1] A jury's finding of no permanent injury must be supported by evidence when the proponent of permanency presents unrefuted expert testimony establishing a permanent injury…
[2] To overcome unrefuted expert testimony on permanent injury, the opponent must present countervailing expert testimony, severely impeach the proponent's expert, or offer o…
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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 legal standard for when permanency evidence must go to the jury versus when a directed verdict is appropriate.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff Jane Rose was injured in an automobile accident and saw a dentist shortly thereafter, who diagnosed a TMJ injury. The dentist treated the pl…
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KLEIN, J.
This is an accident case tried on damages only in which the jury found no permanent injury. Plaintiff argues that the verdict is inadequate and that the trial court erred in not directing a verdict on the issue of permanent injury. We reverse on the issue of permanency.
Appellant saw a dentist shortly following her accident, and he diagnosed a TMJ injury. He treated plaintiff for the injury and testified that her injury resulted from the accident and was permanent. There was no evidence to refute the testimony by plaintiffs dentist.
In Jarrell v. Churm, 611 So. 2d 69, 70 (Fla. 4th DCA 1992), this court stated:
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.
See also Holmes v. State Farm Mut. Auto. Ins. Co., 624 So. 2d 824 (Fla. 2d DCA 1993)(reversing for a directed verdict on permanency where it was undisputed that plaintiff had a permanent TMJ injury caused by the accident).1
There having been no evidence to support the jury’s finding of no permanent injury in this case, the trial court should have directed a verdict. We therefore reverse for a new trial on the amount of damages.
TAYLOR, J., and SCOLA, ROBERT N„ Jr., Associate Judge, concur. . In Florida Department of Highway Safety and Motor Vehicles v. Schnurer, 627 So. 2d 611 (Fla. 1st DCA 1993), the court suggested that Jarrell and Holmes are inconsistent with our supreme court’s opinion in Easkold v. Rhodes, 614 So. 2d 495 (Fla.1993). In Eas-kold, a jury found no permanent injury, and the first district reversed for a new trial on the ground that the uncontradicted expert testimony was that plaintiff had sustained a permanent injury. Rhodes v. Easkold, 588 So. 2d 267 (Fla. 1st DCA 1991). Our supreme court reversed that decision because that opinion overlooked the fact that the plaintiff had given incomplete information to her treating physician who had testified that her injury was permanent. In Easkold, there was evidence that plaintiff's injuries may have preexisted the accident. In Jarrell and Holmes, there was no evidence that the injuries resulted from anything but the accident.
The Schnurer court may have been relying on the fact that in Easkold our supreme court quoted Standard Jury Instruction 2.2(b) which states that juries may accept or reject the opinions of experts. That jury instruction, however, is not an abstract principle of law. It is a jury instruction applicable when a jury is determining issues of fact and would not preclude a directed verdict on permanency in cases such as Jarrell, Holmes and this one.
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Frank v. Wyatt, 869 So. 2d 763 (Fla. 1st DCA 2004)…Fla. v. Poucher, 851 So. 2d 866, 871 (Fla. 1st DCA 2003) (relying, among other cases, on Easkold v. Rhodes, 614 So. 2d 495 (Fla.1993), and Shaw v. Puleo, 159 So. 2d 641 (Fla.1964)). See also Fla. Std. Jury Instr. (Civ.) 2.2(b). Contra Rose v. Dwin, 762 So. 2d 532, 533 n. 1 (Fla. 4th DCA 2000); Williamson v. Superior Ins. Co., 746 So. 2d 483, 485 (Fla. 2d DCA 1999). Our disposition of the issue raised by appellant moots the remaining issue raised by appellee’s cross-appeal. We reverse the directed verdict en…
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Zane v. Coastal Unilube, Inc., 774 So. 2d 761 (Fla. 4th DCA 2000)…well as a later accident, and the testimony from the defense neurologist and neuroradiologist. See Jarrell v. Churm, 611 So. 2d 69, 70 (Fla. 4th DCA 1992) (opponent of permanency creates jury issue by presenting conflicting evidence); Rose v. Dwin, 762 So. 2d 532 (Fla. 4th DCA 2000) (same). A motion for directed verdict should be denied when, as here, there is conflicting medical evidence on the issue of permanency. Williamson v. Superior Ins. Co., 746 So. 2d 483, 485 (Fla. 2nd DCA 1999) (motion for directed…
Authorities Cited
- Easkold v. Rhodes, 614 So. 2d 495 (Fla. 1993)
- Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992)
- Rhodes v. Easkold, 588 So. 2d 267 (Fla. 1st DCA 1991)
- 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)
- Calhoun v. Calhoun, 627 So. 2d 611 (Fla. 2d DCA 1993)