DEBORAH L. GANEY, APPELLANT,
v.
GOODINGS MILLION DOLLAR MIDWAY, INC., AND AMBASSADOR INSURANCE COMPANY, INC., APPELLEE
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Plaintiff Ganey recovered a $15,000 jury verdict for injuries sustained in a fall from an amusement ride. The trial court granted defendant Goodings' motion for new trial on the ground of surprise regarding the physician's testimony about permanent disability, but the appellate court reversed, holding that Goodings was not surprised where the complaint alleged permanent injuries and the defendant failed to pursue available discovery remedies.
The court reversed the new trial order, holding that Goodings could not claim surprise because: (1) the complaint explicitly alleged permanent and continuing injuries; (2) the physician's deposition contained statements that Ms. Ganey's back ligaments and muscles were weakened and she might have job problems, implying ongoing issues; and (3) Goodings had the right to seek an independent physical examination under the Florida Rules of Civil Procedure but failed to do so.
[1] A party claiming surprise by trial testimony cannot establish surprise when the opposing party's pleadings put the substance of the testimony at issue and the party claim…
[2] A party claiming surprise by trial testimony is not entitled to a new trial if it failed to request an independent medical examination during discovery when the opposing…
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Join FLexlaw to unlock all legal intelligence“Although Goodings was given the right to move for an independent physical examination [Fla.R.Civ.P. 1.360(a)], it did not choose to do this. Under these circumstances, Goodings cannot claim surprise.”
Establishes that a party cannot claim surprise when it had available discovery tools but failed to use them
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Join FLexlaw to unlock all legal intelligenceMs. Ganey was injured falling from a ramp descending from an amusement ride operated by Goodings. Summary judgment on liability was entered in her fav…
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MILLS, Judge.
Ms. Ganey was injured when she fell from a ramp while descending from an amusement ride. Summary judgment on liability was entered in her favor. At the jury trial on damages, her treating physician testified that she had a lumbosacral sprain with a resulting permanent disability of between five percent and ten percent of the body as a whole. The jury returned a verdict of $15,000 for Ms. Ganey.
Goodings moved for a new trial on the ground that it was surprised by the physician’s trial testimony of permanent disability because at no time during pretrial discovery did the physician indicate or imply that Ms. Ganey suffered a permanent disability. As a result, Goodings alleged it did not move to have Ms. Ganey examined by another physician, it was denied the opportunity of effective cross examination, and it was denied the opportunity to offer rebuttal testimony.
The trial court granted the motion for new trial. Ms. Ganey appeals. We reverse.
Ms. Ganey alleged in her complaint that her injuries were permanent and continuing in nature. Although the doctor stated in his deposition that Ms. Ganey would be all right and would have no further problems, he also stated that the ligaments and muscles of Mrs. Ganey’s low back were weakened and she might have problems with her job. At no time during the deposition did Goodings ask the doctor if Ms. Ganey suffered a permanent disability. Although Goodings was given the right to move for an independent physical examination [Fla.R.Civ.P. 1.360(a)], it did not choose to do this. Under these circumstances, Goodings cannot claim surprise.
There is no merit in Goodings’ argument that the trial court’s order must be affirmed because the court also granted Goodings a new trial on the ground that the verdict was excessive and Ms. Ganey did not assign this as error. The trial court stated that “Upon the Court suggesting a remittitur of $7,500.00 because the original award shocked judicial conscience, counsel for plaintiff announced his client would not accept such a remittitur.” The statement by the trial court amounted to no more than a suggestion, not an order. The court did not order a remittitur nor did it order a new trial upon Ms. Ganey’s refusal to accept the remittitur. We reverse and remand this ease for reinstatement of the judgment rendered for Ms. Ganey on 16 September 1976 and for reinstatement of the order assessing her costs rendered on 11 October 1976.
BOYER and ERVIN, JJ., concur.
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Suarez-Burgos v. Morhaim, 745 So. 2d 368 (Fla. 4th DCA 1999)…Inc. v. Hunt, 443 So. 2d 441 (Fla. 3d DCA 1984) (error to exclude an expert witness who had not been listed where, opposing counsel had possession of the witness’ report several months prior to trial); Ganey v. Goodings Million Dollar Midway, Inc., 360 So. 2d 62 (Fla. 1st DCA 1978) (where pretrial discovery didn’t disclose a doctor’s opinion as to permanency of the plaintiffs injury, it was error to grant a new trial based on a claim of surprise by the doctor’s testimony at trial that the plaintiffs injury…1 / 2
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Clair v. Lindi E. Perry, 66 So. 3d 1078 (Fla. 4th DCA 2011)…, chronic injury, but appel [*1081] lant chose not to depose the physician most recently treating that condition. Under such circumstances, the fault for any “surprise” at trial lies with appellant. See Ganey v. Goodings Million Dollar Midway, Inc., 360 So. 2d 62 (Fla. 1st DCA 1978) (holding that a defendant was not entitled to a new trial when a plaintiffs physician rendered a permanency opinion at trial that had not been disclosed before trial). In any event, appellant’s claims of “surprise” are dubious, g…
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Mahan v. Parliament Ins. Co., 382 So. 2d 402 (Fla. 4th DCA 1980)…upon the first trial, (citation omitted). The second is a corollary of the first; namely, the availability of the evidence had counsel’s pre-trial inquiry of the witnesses he deposed been complete. See Ganey v. Goodings Million Dollar Midway, Inc., 360 So. 2d 62 (Fla. 1st DCA 1978). Finally, we are convinced, as a matter of fairness, that the record supports the trial court’s conclusion that Dawn Fogle-man did not knowingly give false testimony. Prior to trial the appellants never asked Dawn Fogleman wheth…
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