149 So. 3d 39
Fla. Dist. Ct. App.2014Background
- Plaintiff was a front seat passenger in Feb 2008 when Poole’s utility truck was rear-ended by Preece’s A&G Concrete Pools truck; mud on taillights contributed to the collision.
- Plaintiff reported neck and back pain at the scene and initially received ER care and subsequent chiropractor treatment.
- Plaintiff had a prior 2001 history of back/neck problems, with medical records showing continued pain and treatment over the years.
- Dr. Katzman performed lumbar (2008) and cervical (2009) surgeries, with the cervical surgery reportedly unsuccessful, and Dr. Dare later evaluated plaintiff.
- A CME defense examination by Dr. Schumacher suggested the surgeries were not necessary, and an in limine motion sought to limit such testimony; trial court modified how objections could be raised.
- Jury verdict denied liability by Preece; plaintiff sought a new trial, which the court denied, and the appellate court affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of expert testimony on surgery necessity | Plaintiff argues CME doctor’s testimony about unnecessary surgery was improperly admitted. | Defendant argues testimony was admissible and not barred by the limine order. | Testimony admissible; issue not preserved or not error |
| Denial of motion for new trial given liability and damages disputes | Plaintiff contends liability admitted and experts agreed injury; verdict against weight of evidence. | Defendant contends evidence supported by credibility issues and not an abuse of discretion. | No abuse of discretion; verdict supported by credibility issues and conflicting evidence |
Key Cases Cited
- Dungan v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994) (testimony about malpractice can be improper where it overlaps with causation)
- Nason v. Shafranski, 33 So.3d 117 (Fla. 4th DCA 2010) (inappropriate surgery testimony requiring special instruction; similar fact pattern)
- Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977) (tortfeasor liability for negligent medical treatment)
- Fell v. Carlin, 6 So.3d 119 (Fla. 2d DCA 2009) (jury may reject medical testimony based on plaintiff candor and subjective reports)
- Campbell v. Griffith, 971 So.2d 232 (Fla. 2d DCA 2008) (medical evidence on permanence/causation not undisputed allows juror to weigh)
- Wald v. Grainger, 64 So.3d 1201 (Fla.2011) (jury may reject expert testimony with reasonable basis in evidence)
- Easkold v. Rhodes, 614 So.2d 495 (Fla.1993) (credibility issues affect weight of expert testimony)