Pedro v. Baber

83 So. 3d 912, 2012 WL 716046, 2012 Fla. App. LEXIS 3682
CourtDistrict Court of Appeal of Florida
DecidedMarch 7, 2012
DocketNo. 2D10-4644
StatusPublished
Cited by4 cases

This text of 83 So. 3d 912 (Pedro v. Baber) 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
Pedro v. Baber, 83 So. 3d 912, 2012 WL 716046, 2012 Fla. App. LEXIS 3682 (Fla. Ct. App. 2012).

Opinion

LaROSE, Judge.

Joey James Pedro and Jill Pedro appeal a final judgment entered in favor of Betsy Baber in her personal injury lawsuit against them. They argue that the trial court erred in giving a jury instruction pursuant to Stuart v. Hertz Corporation, 351 So.2d 703, 707 (Fla.1977), after a medical expert testified on cross-examination that surgery performed on Ms. Baber was unnecessary. We affirm.

Background

Mr. Pedro rear-ended Ms. Baber’s vehicle. Ms. Baber drove herself to the hospital where she complained of neck and back pain. Emergency room personnel diagnosed whiplash. Ms. Baber obtained follow-up nonsurgical treatment from Dr. Wall.

After four months, Ms. Baber still had pain. She consulted Dr. Nucci, an ortho[914]*914pedic surgeon. He diagnosed neck and low-back muscular injury and L5-S1 disc herniation from the accident. Dr. Nucci recommended surgery. More than a year after the accident, and after several months of nonsurgical treatment, Ms. Ba-ber had surgery. Initially, the pain decreased; within months, however, her low-back pain increased.

Ms. Baber sued the Pedros. She alleged that Joey Pedro’s negligence caused her permanent injuries and that Jill Pedro, the vehicle owner, was vicariously liable. See Fischer v. Alessandrini, 907 So.2d 569, 571 (Fla. 2d DCA 2005) (“Under the dangerous instrumentality doctrine, an automobile owner is vicariously liable for damages caused by the operation of his vehicle by a permissive user.”) (citing Hertz Corp. v. Jackson, 617 So.2d 1051, 1053 (Fla.1993)). The Pedros opposed Ms. Baber’s efforts to recover medical expenses related to the back surgery.

The Pedros attacked Dr, Nucci’s credibility and professionalism. For example, in opening statement, counsel told the jury that Dr. Nucci was a personal injury doctor, he treated accident patients under letters of protection,1 and the surgery did not help Ms. Baber. The Pedros also presented evidence challenging the reasonableness of Dr. Nucci’s charges.

The medical testimony conflicted. Dr. Nucci testified that the surgery was accident-related and improved Ms. Baber’s condition. He conceded that she still had persistent low-back pain and might require further surgery. Ms. Baber testified that her back surgery stemmed from injuries sustained in the accident; the pain only worsened after the surgery. Dr. Wall testified that the accident caused a lumbar disc herniation and an annular tear. He would have preferred that Ms. Baber continue nonsurgical therapies; ultimately he agreed that she was a surgery candidate. He testified that “not all surgeries work.” He also agreed with Dr. Nucci that Ms. Baber might need more surgery.

The Pedros called a diagnostic radiologist, Dr. Rosenbach, who testified that the disc protrusion and annular tear were degenerative and not caused by the accident. Dr. Knezevich, who performed an independent medical examination of Ms. Baber, testified that the accident caused only non-permanent cervical, thoracic, and lumbar/sacral strain that did not require surgery. On cross-examination, he elaborated that Ms. Baber “does get an impairment rating

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Bluebook (online)
83 So. 3d 912, 2012 WL 716046, 2012 Fla. App. LEXIS 3682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pedro-v-baber-fladistctapp-2012.