Brown v. Lunskis

128 So. 3d 77, 2013 WL 4005517, 2013 Fla. App. LEXIS 12322
CourtDistrict Court of Appeal of Florida
DecidedAugust 7, 2013
DocketNo. 2D12-957
StatusPublished
Cited by1 cases

This text of 128 So. 3d 77 (Brown v. Lunskis) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Lunskis, 128 So. 3d 77, 2013 WL 4005517, 2013 Fla. App. LEXIS 12322 (Fla. Ct. App. 2013).

Opinion

CRENSHAW, Judge.

Brittany and Joseph Brown appeal an order granting Michael Lunskis a new trial on the issue of damages in this automobile [78]*78negligence case. The trial court granted the new trial after it directed a verdict on the issue of the permanency of one of Mr. Lunskis’s claimed injuries. The directed verdict was entered on a renewed motion for directed verdict filed after the jury had returned its verdict. The focus of that motion was not the primary injuries allegedly sustained by Mr. Lunskis, but rather a temporomandibular joint (TMJ) condition. We conclude that the holding in Wald v. Grainger, 64 So.3d 1201 (Fla. 2011), does not support the trial court’s decision to grant the directed verdict. Accordingly, we reverse the order granting new trial and remand for entry of a judgment based on the jury’s verdict that awarded Mr. Lunskis his past medical expenses and determined that he had not sustained a permanent injury.

I. The Accident and the Primary Injuries at Issue During the Trial

This case arises from a relatively minor automobile accident that occurred on January 21, 2009. Mr. Lunskis was on his way to a doctor’s appointment, driving his car on a four-lane street in a residential neighborhood. He was wearing his seatbelt. Brittany Brown was driving her father’s car in the opposite direction on the street. She turned left at an intersection in front of Mr. Lunskis whose view of her was blocked by a large bus. Though fortunately Ms. Brown nearly cleared the intersection, Mr. Lunskis’s car collided with her car. His front passenger-side fender hit her rear passenger-side fender behind the rear wheel. Mr. Lunskis’s car, a 1996 Mazda sedan, was still operable and sustained damage totaling $1660.70, including sales tax. Neither the police nor an ambulance was called to the scene of this accident. After the drivers exchanged information and talked for a while, they both drove their cars away from the scene of the accident.

Mr. Lunskis continued to his doctor’s appointment. At the time of the accident, Mr. Lunskis was a retired librarian in his mid-fifties. He had been treated by his regular physician since 2006. Mr. Lun-skis’s regular physician had been providing medication to help Mr. Lunskis’s control his diabetes, high blood pressure, and fi-bromyalgia. She was also helping him control his weight. As a result of the accident, he was late to his appointment, and it is unclear whether the doctor actually examined him on that date. He apparently received no treatment or medication on the day of the accident.

Mr. Lunskis felt “achy” the following day, but did not seek treatment until he returned to his regular physician a week later. His regular physician did not treat patients involved in automobile accidents. She gave him a list of doctors from which he selected Dr. Clara Creighton.

Mr. Lunskis first saw Dr. Creighton on January 30, 2009. She primarily treats patients who have been in automobile accidents. Mr. Lunskis testified at trial that Dr. Creighton would not treat him unless he hired a lawyer and gave her a letter of protection. Dr. Creighton saw Mr. Lun-skis on a regular basis from January 30 until June 26, 2009. She primarily provided medications and physical therapy. Thereafter he saw her in mid-August 2010 and a few more times in the months preceding the trial.

Sometime after Mr. Lunskis began being treated by Dr. Creighton, he began having increased pain in his left knee. Dr. Creighton referred Mr. Lunskis to an orthopedic surgeon in late April. The surgeon diagnosed a strained ligament, a meniscus tear, and a Baker’s cyst. He performed arthroscopic surgery on the left knee. He testified that the condition in the knee was caused by the accident.

[79]*79In addition to the knee injury, Mr. Lun-skis testified that he had low back and neck pain caused by the accident. These conditions had been treated conservatively. Without detailing the evidence, the jury received conflicting testimony from the doctors presented by Mr. Lunskis and those presented by the Browns as to whether the pain in Mr. Lunskis’s back and neck was caused by the accident and whether it was permanent. The Browns maintained that the conditions in his back as well as the conditions in his knee were long-standing, degenerative conditions unrelated to the accident.

At trial, the Browns admitted that Ms. Brown had been negligent at the time of the accident and that Mr. Lunskis had not committed any comparative negligence. They admitted that Mr. Lunskis had sustained at least some injury. Thus, the issues presented to the jury required it to decide what injuries were caused by the accident and whether any of those injuries were permanent. The jury decided that Mr. Lunskis had sustained no permanent injuries and awarded him $58,763.43, which was the precise amount of his medical bills.

II. The TMJ Condition

In both the original motion for directed verdict and in the renewed motion, Mr. Lunskis argued that there was no jury question that he had sustained a TMJ injury that was permanent. Oddly, the evidence concerning his alleged TMJ syndrome came only from Dr. Creighton. Mr. Lunskis never testified that he experienced any TMJ pain.

Dr. Creighton, like most of the physicians in this case, did not testify live at the trial. In her video deposition, she explained her credentials without identifying the medical school she attended. She joined the Navy after medical school, becoming a flight surgeon. Thereafter she practiced medicine in a small Iowa town and eventually transitioned to work in hospital emergency rooms. She is board certified in emergency medical treatment, having been grandfathered into that certification based on her experience. Following her own automobile accident in 1995, she left the field of emergency medical treatment and began working in a clinic that specializes in patients who had been in automobile accidents. She apparently has no special training in orthopedics, neurology, or dentistry.

Dr. Creighton testified, and her reports confirm, that her initial examination showed signs of mild bilateral TMJ pain and that she suspected TMJ dysfunction. She continued to note some level of TMJ syndrome throughout Mr. Lunskis’s visits to her office. She never referred him to a specialist to diagnose this syndrome or recommend treatment. In her “final narrative report” on June 26, 2009, she recommended that he see a “TMJ Specialist” “to undergo diagnostic testing and fabrication of an occlusal splint.” But Mr. Lunskis never went to any dentist or physician who specialized in TMJ to receive that diagnosis.

In addition to testifying that Mr. Lun-skis had a permanent TMJ syndrome that she related to this accident, Dr. Creighton opined that numerous other injuries throughout Mr. Lunskis’s body existed, were permanent, and were related to this accident. The jury rejected each and every opinion of permanency to which Dr. Creighton testified.

III. Standard of Review

We review the trial court’s rulings on a motion for directed verdict de novo and apply the same test used by the trial court in ruling on the motion. Fell v. Carlin, 6 So.3d 119, 120 (Fla. 2d DCA 2009) (citing Sims v. Cristinzio, 898 So.2d 1004, 1006 (Fla. 2d DCA 2005)).

[80]*80A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmov-ing party.

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Bluebook (online)
128 So. 3d 77, 2013 WL 4005517, 2013 Fla. App. LEXIS 12322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-lunskis-fladistctapp-2013.