• In Order for an Expert’s Testimony on Permanency to Be Impeached, or Otherwise Rebutted, the Jury’s Ability to Reject the Testimony Must Be Based on Some Reasonable Basis in the Evidence
  • January 3, 2014 | Author: Rocco J. Carbone
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Jacksonville Office
  • Brown v. Lunskis, 2013 Fla. App. LEXIS 12322 (Fla. Dist. Ct. App. 2d Dist. 8/7/13)

    The defendants in this automobile negligence case appealed an order granting the plaintiff a new trial on the issue of damages after the trial court directed a verdict on the issue of permanency regarding one of the claimed injuries. The directed verdict was entered on a renewed motion for directed verdict filed after the jury had returned its verdict. The injury at issue was not based on the primary injuries alleged, but rather on a temporomandibular joint (TMJ) condition. In this case, the Second District Court concluded 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.

    The Wald court held that a trial court can direct a verdict on permanency based on expert testimony even though such determinations are usually made by juries in personal injury cases. 64 So. 3d 1201, 1204 (Fla. 2011). The court outlined the procedure for such issues:

    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 plaintiff’s expert, or present other evidence which creates a direct conflict with the plaintiff’s evidence. If the defendant succeeds in this endeavor, a jury question is presented; if not, a directed verdict on permanency is appropriate.

    Id. at 1204-05 (citations omitted). The court then further explained:

    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. 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.

    Id. at 1205.

    Wald allows for a directed verdict on permanency based on expert testimony except when: (1) it is rebutted by another expert; (2) the testimony is impeached; or (3) other conflicting evidence is presented. See id. at 1204.

    In Wald, the Supreme Court specifically stated that for an expert’s testimony on permanency to be impeached, or otherwise rebutted, the jury’s ability to reject the testimony must be based on some reasonable basis in the evidence. This can include conflicting medical evidence, evidence that impeaches the expert’s testimony or calls it into question, such as the failure of the plaintiff to give the medical expert an accurate or complete medical history, conflicting lay testimony or evidence that disputes the injury claim, or the plaintiff’s conflicting testimony or self-contradictory statements regarding the injury. For example, when a medical expert’s opinion is predicated on an incomplete or inaccurate medical history, the jury is free to reject the expert medical testimony, even without conflicting medical testimony, if there is conflicting lay testimony. Id. at 1205-06 (citations omitted).

    From the court’s review of the record, it determined there were several bases in the evidence for the jury to disregard the testimony of the witness.