ARTHUR ZANE, APPELLANT,
v.
COASTAL UNILUBE, INC., A TENNESSEE CORPORATION, DONALD PETE DAVIS AND FELIX GIUSTO, APPELLEES
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In this motor vehicle collision case, the Fourth District Court of Appeal affirmed a jury verdict finding that the plaintiff failed to prove a permanent injury from the collision. The court upheld the admission of expert testimony regarding injury probability and rejected the plaintiff's challenges to the verdict and trial procedures.
The court affirmed the judgment, holding that the jury's finding of no permanent injury was supported by ample evidence including preexisting conditions, a subsequent accident, and conflicting medical testimony. The trial court properly admitted the expert testimony regarding injury probability, and properly denied the motion for new trial and the instruction requested under Gross v. Lyons.
[1] A jury's finding of no permanent injury is supported by ample evidence of a preexisting condition, a later accident, and conflicting expert testimony.
[2] A motion for directed verdict should be denied when conflicting evidence on the issue of permanency has been presented.
Previewing 2 of 5 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“A motion for directed verdict should be denied when, as here, there is conflicting medical evidence on the issue of permanency.”
Establishes that conflicting expert testimony on permanency precludes summary judgment and requires jury consideration
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff Arthur Zane was involved in a motor vehicle collision with defendants. The evidence showed a preexisting condition and a subsequent accident…
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FARMER, J.
We affirm the final judgment in this motor vehicle collision case in which plaintiff has raised several issues. Our affir-mance rests on the following analysis.
The jury’s finding that plaintiff did not suffer a permanent injury as a result of the collision in suit is supported by ample evidence of a preexisting condition, as 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 verdict should only be denied and case submitted to jury when conflicting evidence has been presented by the parties).
We find no error in the trial court s decision to allow Dr. McElroy to testify as an expert. The precise objection made at trial was that Dr. McElroy was entirely unqualified to testify as to the probabilities of plaintiff suffering no injury from a 5 mph accident with an operational seatbelt in use. Unlike Mattek v. White, 695 So. 2d 942 (Fla. 4th DCA 1997), where an expert’s testimony was used to show that plaintiff did not suffer a permanent injury from such a collision, here the testimony was offered solely as to the “expectation” of plaintiff suffering no injury if he had been using his seatbelt, as to which Dr. McElroy established his qualifications.1
Plaintiff has failed to show that the trial judge abused his discretion in denying his motion for new trial on the grounds that the verdict was against the manifest weight of the evidence. Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla.1999); Beauvais v. Edell, 760 So. 2d 262 (Fla. 4th DCA 2000). The court did not err in refusing to give an instruction under Gross v. Lyons, 763 So. 2d 276 (Fla.2000), because plaintiffs expert witnesses testified that the two accidents could be apportioned. We reject all other grounds without further comment.
AFFIRMED.
GUNTHER and STONE, JJ„ concur. . We understand ‘expectation” to mean “probability” as to a driver/passenger suffering injury under the circumstances with a seatbelt in use. Plaintiff did not object to Dr. McElroy’s proposed testimony on the grounds that it failed to satisfy the requirements of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), for new or novel scientific evidence. See Flanagan v. State 625 So. 2d 827, 828 (Fla.1993) (novel scientific evidence is not admissible in Florida unless it meets the Frye test); Ramirez v. State, 651 So. 2d 1164, 1167 (Fla.1995) (under Frye expert’s testimony must be based on scientific principle or discovery sufficiently established to have gained general acceptance in particular field); Hayes v. State, 660 So. 2d 257, 262 (Fla.1995) (Florida follows Frye test to determine the admissibility of new or novel scientific evidence). We therefore express no opinion as to whether this probability evidence satisfies the Frye test.
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Kathi Stockwell v. Drake, 901 So. 2d 974 (Fla. 4th DCA 2005)…e relied on Behn v. State, 621 So. 2d 534, 536 (Fla. 1st DCA 1993), in which the court noted that it was beyond this type of expert’s competence to testify to the extent of injuries which occurred. Stockwell relies on Zane v. Coastal Unilube, Inc., 774 So. 2d 761 (Fla. 4th DCA 2000), in which we held that Dr. McElroy could testify as an expert that plaintiff would not have suffered injury had he been wearing a seatbelt. The opinion does not state that Dr. McElroy was a biome-chanical engineer, but even if he…
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Donchey v. Flowers BY Tony, Inc., 832 So. 2d 193 (Fla. 3d DCA 2002)…PER CURIAM. Affirmed. See Zane v. Coastal Unilube, Inc., 774 So. 2d 761 (Fla. 4th DCA 2000); Marsa v. Lopez, 400 So. 2d 563 (Fla. 3d DCA 1981).…
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Maines v. FOX, 190 So. 3d 1135 (Fla. 1st DCA 2016)…we specifically recognized that a biomechanical expert is qualified to opine on the general mechanism of an injury. In Houghton v. Bond, 680 So. 2d 514, 521 (Fla. 1st DCA 1996), we accepted similar testimony. See also Zane v. Coastal Unilube, Inc., 774 So. 2d 761 (Fla. 4th DCA 2000). Biomechanical experts are not, however, allowed to render opinions that require medical expertise. For instance, in Mattek v. White, 695 So. 2d 942 (Fla. 4th DCA 1997), the court held an accident recon-structionist could not te…
Authorities Cited
- Rupert B. Brown v. The Est. OF A.P. Stuckey, Sr., 749 So. 2d 490 (Fla. 1999)
- Flanagan v. State, 625 So. 2d 827 (Fla. 1993)
- Ramirez v. State, 651 So. 2d 1164 (Fla. 1995)
- Hayes v. State, 660 So. 2d 257 (Fla. 1995)
- Selma Gross v. Lyons, 763 So. 2d 276 (Fla. 2000)
- Beauvais v. Edell, 760 So. 2d 262 (Fla. 4th DCA 2000)
- Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992)
- Matter v. White, 695 So. 2d 942 (Fla. 4th DCA 1997)
- Williams v. State, 746 So. 2d 483 (Fla. 2d DCA 1999)
- Rose v. Dwin, 762 So. 2d 532 (Fla. 4th DCA 2000)