Duclos v. Richardson
113 So. 3d 1001
Fla. Dist. Ct. App.2013Background
- Plaintiff sought damages under section 627.737(2) for neck injury from a May 2006 auto accident.
- Plaintiff presented three physicians who testified the neck injury was permanent.
- Defense offered Dr. Von Thron, who opined the neck injury was not permanent and future treatment unnecessary.
- Trial court denied motions for directed verdict on permanency and allowed jury to weigh credibility of Dr. Von Thron against other evidence.
- Jury found some past medical expenses but no permanent injury or future medical damages.
- Trial court granted JNOV and new trial based on Dr. Von Thron’s credibility; appellate reversal remanded for judgment consistent with verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was JNOV proper on permanency given Dr. Von Thron’s testimony? | Richardson: Von Thron contradicted other experts; not credible. | Duelos: Court should disregard equivocal expert and grant JNOV. | No; JNOV reversed; credibility for jury’s resolution remained. |
| Did the trial court err in granting a new trial for permanency? | New trial improper since jury could weigh expert credibility. | New trial appropriate due to weight of evidence supporting non-permanency. | No; order reversed and remanded for judgment consistent with verdict. |
Key Cases Cited
- Wald v. Grainger, 64 So.3d 1201 (Fla.2011) (directed verdict appropriate when no evidence supports permanency)
- State Farm Mut. Auto. Ins. Co. v. Orr, 660 So.2d 1061 (Fla. 4th DCA 1995) (jury must determine credibility when expert testimony exists)
- Simmons-Russ v. Emko, 928 So.2d 397 (Fla. 1st DCA 2006) (equivocal and irreconcilable expert testimony lacks probative value)
- Moisan v. Frank K. Kriz, Jr., M.D., P.A., 531 So.2d 398 (Fla. 2d DCA 1988) (trial court may not weigh evidence or assess credibility on directed verdict)
- Lindon v. Dalton Hotel Corp., 49 So.3d 299 (Fla. 5th DCA 2010) (conflicting evidence or reasonable inferences raise jury question)
- Specialty Marine & Indus. Supplies, Inc. v. Venus, 66 So.3d 806 (Fla. 1st DCA 2011) (standard for review of JNOV is de novo)