Kuebler v. Ferris

65 So. 3d 1154, 2011 Fla. App. LEXIS 11354, 2011 WL 2848624
CourtDistrict Court of Appeal of Florida
DecidedJuly 20, 2011
DocketNo. 4D09-5181
StatusPublished
Cited by2 cases

This text of 65 So. 3d 1154 (Kuebler v. Ferris) 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
Kuebler v. Ferris, 65 So. 3d 1154, 2011 Fla. App. LEXIS 11354, 2011 WL 2848624 (Fla. Ct. App. 2011).

Opinions

WARNER, J.

After a jury determined that the automobile accident was not a legal cause of injury to the plaintiff, the trial court granted a motion for new trial. The court concluded that while evidence of permanency of the plaintiffs injury was hotly contested, all the evidence showed at least [1155]*1155some injury. The defendant appeals, claiming that the trial court abused its discretion in granting the motion, because there was some evidence that the plaintiff suffered no injury at all. We cannot conclude that the trial court abused its discretion. Thus, we affirm.

This case arises out of a “fender-bender” automobile accident in 2002. The plaintiff, Sharon Ferris, was rear-ended by the defendant at a stoplight. Ferris described a “hard” hit causing her neck to hit the headrest. The defendant called it more of a tap. The only damage to Ferris’ vehicle were two small holes in her bumper caused by the screws on the defendant’s front license plate. Both drivers pulled to the side, exchanged information, and went on their way. When the defendant asked if Ferris were injured, she told him she was “fine.” Ferris, however, testified that she developed stiffness and soreness in her neck during the day. The defendant called the next day to see how she was, and she told him she “seemed okay.” She did not miss any work as a result of the accident.

Ferris did not seek medical treatment right away. As her neck continued to feel stiff and sore, with pain going down her arms, she eventually went to her primary physician about thirty days after the accident. Her physician referred her to an orthopedic physician, who in turn referred her to a pain specialist. She was prescribed anti-inflammatory drugs and muscle relaxants, but she discontinued treatment with them because she “just wasn’t that into taking the drugs.” She also saw a chiropractor for approximately two-and-a-half years after the accident for palliative care. She filed suit for damages in 2006. She saw the chiropractor again in 2008. At trial, she claimed that she had discontinued seeing the chiropractor in 2005 for financial reasons. Yet she testified at trial that during 2006 to 2008 she charged $2,000 to her credit cards for dental treatment.

In her testimony at trial, Ferris admitted that prior to the accident she suffered from psoriatic arthritis, for which she would occasionally need a cortisone shot to be able to lift her shoulder. She also admitted having prior neck problems which required visits to the doctor.1 In addition, the week before the accident she experienced pain in her mid back region, causing her to visit her physician. At that time she was taking a prescription dose of Ibuprofen of 800 milligrams, and she also had a prescription for hydrocodone, a narcotic. She admitted that she had frequently received Ibuprofen prescriptions for other conditions dating back to 1997. However, she maintained that none of these conditions caused any restriction in her activities, as did her condition after the accident. Ferris’ daughter also testified at trial that her mother began having headaches and soreness after the accident which limited her activities.

Ferris testified that her activities were limited, including speed walking, which she enjoyed prior to the accident. She explained speed walking to the jury. However, on cross-examination, counsel brought out that in her answers to interrogatories she had not listed that as an activity that she had engaged in prior to the accident that she was unable to perform now.

Her medical records and prescription records were admitted into evidence. Her physician’s notes from the visit the week [1156]*1156prior to the accident show that she complained of sharp pains in the mid back. The prescription drug records showed a lengthy history of medications of all types, including the prescription strength Ibuprofen and hydrocodone. Also admitted into evidence was a record of a 2006 visit to an orthopedist as a result of bilateral knee pain. In that record, she denied any prior history of knee pain. Yet in the records of her primary care physician is a record of a visit due to knee pain in 2002. On a second visit she complained of injuring her shoulder in a fall. However, in none of those records is any complaint made of neck pain.

Her main treating chiropractor testified at trial that Ferris had suffered a permanent impairment to her neck as a result of the accident. MRI films of Ferris’ neck showed a bulging disc at one level and a herniated disc at another, although the chiropractor did not review the films herself. In contrast to her chiropractor, the orthopedic physician Ferris was referred to by her primary physician looked at the MRI films and did not see any herniation, although he did observe a bulging disc. The chiropractor revealed that Ferris had not told her about the sharp pain she felt in her back the week prior to the accident, nor did she tell her about her prescription medications. This history may have made a difference in the chiropractor’s opinion, depending upon the part of the body involved.

The defense sought an examination by another orthopedic surgeon. That doctor testified that he found no permanent injury. He reviewed the medical films and found no herniated discs. The disc bulging was consistent with normal wear and tear associated with Ferris’ age and not an injury. He did conclude, however, that she had suffered a neck strain in the accident. Typically such injuries would be treated with anti-inflammatories and four to six weeks of physical therapy.

Prior to trial, the defendant had admitted liability for causing the accident. Therefore, the entire trial focused on the permanency of Ferris’ injuries. Because she did not present any evidence of any future medical expenses, the court directed a verdict as to future expenses. Ferris was allowed to argue that she should be entitled to future pain and suffering damages. In closing argument, defense counsel admitted that Ferris had suffered the minor neck sprain as testified to by the defense doctor, just not the permanent injury claimed by Ferris.

The jury returned a verdict finding that the accident was not a legal cause of injury to Ferris. Plaintiff moved for a new trial, and the court granted the motion. In its order the court stated:

Plaintiff seeks a new trial asserting that the verdict is against the manifest weight of the evidence. In support of this assertion, Plaintiff notes that the undisputed testimony of the witnesses, expert and lay, established that the Plaintiff had suffered some injury. The Court agrees.
While permanency of any injury was very much a disputed fact, the evidence at trial established at the very least that the Plaintiff suffered a neck sprain as a result of the accident. Under such circumstances, the failure to find any loss or damage as a result of the Defendant’s negligence is against the manifest weight of the evidence. See, e.g., The Hertz Corporation v. Gleason, 874 So.2d 1217 (Fla. 4th DCA 2004).

The defendant appeals the order granting a new trial.

A trial judge has broad discretion in ruling on a motion for a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence. Brown v. [1157]*1157Estate of Stuckey, 749 So.2d 490, 497 (Fla. 1999). When so ruling, the trial court must consider all of the evidence and weigh the credibility of the witnesses.

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Cite This Page — Counsel Stack

Bluebook (online)
65 So. 3d 1154, 2011 Fla. App. LEXIS 11354, 2011 WL 2848624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuebler-v-ferris-fladistctapp-2011.