Wald v. Grainger

64 So. 3d 1201, 36 Fla. L. Weekly Supp. 211, 2011 Fla. LEXIS 1126, 2011 WL 1885710
CourtSupreme Court of Florida
DecidedMay 19, 2011
DocketNo. SC08-1143
StatusPublished
Cited by44 cases

This text of 64 So. 3d 1201 (Wald v. Grainger) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wald v. Grainger, 64 So. 3d 1201, 36 Fla. L. Weekly Supp. 211, 2011 Fla. LEXIS 1126, 2011 WL 1885710 (Fla. 2011).

Opinion

QUINCE, J.

Howard B. Wald, Jr., seeks review of the decision of the First District Court of Appeal in Grainger v. Wald, 982 So.2d 42 (Fla. 1st DCA 2008), on the ground that it expressly and directly conflicts with decisions of other district courts of appeal and this Court on two questions of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we quash the decision of the First District.

FACTUAL AND PROCEDURAL HISTORY

Howard Wald, Jr., was involved in a car accident with Sam Gus Felos, who admitted his fault for the accident.1 Wald alleged injuries to his neck, back, right arm, foot, and thigh from the collision. Wald sought damages for his neck and back injuries, but not the thigh injury because it caused no “ongoing chronic pain.”

[1204]*1204Because the defendant admitted fault, the only issues the jury had to consider were causation, the permanency of Wald’s injuries, and damages. Two doctors testified at trial. Wald’s treating physician, Dr. Jackson Tan, stated that Wald’s injuries, including his neck, back, right elbow, and right thigh injuries, were permanent and connected with the accident. The defendant’s expert physician, Dr. Howard Hogshead, testified that Wald had permanent right thigh numbness and, giving Wald “the benefit of the doubt,” that condition was related to the collision. Dr. Hogshead also stated his opinion that Wald did not sustain permanent neck or back injury as a result of the accident.

Wald moved for directed verdict on the issue of permanency. Over the defendant’s objection, the trial court granted the motion for directed verdict on permanency, but only as to the right thigh condition. The trial court instructed the defendant that he was free to argue to the jury that none of Wald’s other injuries were permanent. The trial court instructed the jury that it was free to weigh, accept, or reject the opinions of any expert witness. However, there was no reference to permanency in the verdict form or in the jury instructions. The jury entered judgment for Wald and awarded him over $1 million in damages for his injuries.

On appeal, the First District Court reversed the final judgment, finding that the trial court committed reversible error by directing a verdict as to permanency as that was a jury question. The First District explained that a jury is free to weigh the credibility of expert witnesses as it does any other witness and to reject any testimony regarding permanency, including uncontradicted testimony. The First District concluded that there was conflicting testimony as to the permanency of Wald’s neck and back injuries and ambivalent testimony as to the permanency of the thigh injury, for which Wald did not even seek damages. Grainger v. Wald, 982 So.2d 42 (Fla. 1st DCA 2008).

Wald sought review of the First District’s decision in Grainger based on alleged express and direct conflict with decisions of other district courts and this Court on two points of law, whether permanency is a jury question and whether the jury can reject uncontradicted expert testimony. This Court granted review and heard oral argument from the parties.

ANALYSIS

In the instant case, the First District concluded that the trial court erred as matter of law by directing a verdict on issue of permanency, as “permanency is a jury question.” Grainger, 982 So.2d at 43. The First District also concluded that “the jury was free to reject any testimony regarding permanency, including uncontra-dicted testimony.” Id. However, we conclude that these statements by the First District are overly broad and do not accurately reflect Florida law on these issues.

Determinations about the permanency of an injury are generally made by juries. See State Farm Mut. Auto. Ins. Co. v. Orr, 660 So.2d 1061 (Fla. 4th DCA 1995). Nonetheless, where the evidence of injury and causation is such that no reasonable inference could support a jury verdict for the defendant, it is not improper to direct a verdict on the permanency issue for the plaintiff. Id. at 1063. A plaintiff can establish a prima facie case of permanency by presenting expert testimony of permanency. Once this is done, the burden shifts to the defendant to present countervailing expert testimony, severely impeach the plaintiffs expert, or present other evidence which creates a direct conflict with the plaintiffs evidence. See Evans v. Montenegro, 728 So.2d 270, 271 [1205]*1205(Fla. 3d DCA 1999) (holding that a directed verdict for the plaintiff on permanency was proper where the defendant did not impeach the plaintiffs expert and did not present conflicting evidence on permanency). If the defendant succeeds in this endeavor, a jury question is presented; if not, a directed verdict on permanency is appropriate. Id.

A party moving for a directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the non-moving party. See Williamson v. Superior Ins. Co., 746 So.2d 483, 485 (Fla. 2d DCA 1999). A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the mov-ant’s case as a matter of law and there is no evidence to rebut it. Orr, 660 So.2d at 1062.

In determining the propriety of a trial court’s directed verdict on permanency, the reviewing court must “first determine whether the evidence supporting [the plaintiffs] claim of permanent injury within a reasonable degree of medical probability met that standard. If so, [the court] then need[s] to examine the record to determine if there is any conflicting evidence or inferences on the issue of permanent injury from which the jury could draw a conclusion favorable to the party against whom the directed verdict was entered.” Id. (finding neither contradictory nor conflicting expert medical evidence and no other evidence that would furnish the jury a reasonable basis upon which to disbelieve the plaintiffs complaints of pain or to reject the opinion testimony of the medical experts).

A jury is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case, including lay testimony. Easkold v. Rhodes, 614 So.2d 495, 497-98 (Fla.1993) (concluding that jury could reject expert medical testimony that the plaintiff had sustained permanent injuries from an automobile accident where the experts’ medical opinions were premised on the plaintiffs self-reported false medical history). See also Orr, 660 So.2d at 1062. However, when medical evidence on permanence is undisputed, unimpeached, or not otherwise subject to question based on the other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it. Campbell v. Griffith, 971 So.2d 232, 236 (Fla.

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Cite This Page — Counsel Stack

Bluebook (online)
64 So. 3d 1201, 36 Fla. L. Weekly Supp. 211, 2011 Fla. LEXIS 1126, 2011 WL 1885710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wald-v-grainger-fla-2011.