Fifth DCA
Cooper v. Gonzalez 5th DCA3/31/23, Judge EdwardsTopics: Directed Verdict, Negligence, Non-Economic Damages
In 2018, Kipp Cooper was driving a van owned by his employer when he rear-ended Tammy Gonzalez’s vehicle causing her injury. Cooper and his employer admitted fault/liability, but they challenged plaintiff’s claims about the nature, extent, permanency, and causation of Gonzalez’s injuries.
Ms. Gonzalez had preexisting injuries, degenerative changes, and prior motor vehicle accidents that resulted in medical treatment. She received chiropractic treatment (neck), injections (neck), a microdiscectomy (back), a vertebral fusion (back), and arthroscopic shoulder surgery after the accident in this case. Her neck and shoulder pain largely resolved after treatment, but her back still caused pain, though the vertebral fusion had lessened the pain.
Cooper retained Dr. McBride to perform a record review and compulsory medical exam (“CME”) of the plaintiff. He opined that he could not say one way or the other whether the accident in this case caused the lumbar disc herniation.
In 2021, the case went to trial, and on the evening prior to his testimony, Dr. McBride had a totally legitimate, not-at-all-made-up eureka moment where he realized that he could now opine that the accident definitely did not cause the herniation because he had “come across” a 2013 CT scan that documented the same condition at the same location and documented pain indicative of a herniation.
Cooper disclosed the new opinion and admitted that it was untimely, and the trial court ruled that Dr. McBride had to stick to his timely-disclosed opinion during his trial testimony. Regardless, the jury found no permanent injury, and the jury awarded $36,250 for past medical expenses. Right after the verdict, something caused a mistrial, everyone agreed that a mistrial was warranted, and no one appealed.
A week after the mistrial, the case was transferred to a new just who entered an order applying to several cases (perhaps COVID-related?) that ordered a “freezing” of this case and several others, meaning that all discovery, listing of witnesses, pre-trial motions, and cut-off dates were now “ceased” and relief could only come via court order.
A week after the “freeze” order, Cooper provided to Gonzalez the updated report from McBride, which Cooper planned to use at the second trial now that it would not be such a surprise to he plaintiff. But Cooper had not sought relief from the “freeze” order, so Gonzalez moved to strike or limit Dr. McBride’s testimony. At a hearing on that motion, the new judge ordered that due to the “freeze” order, the disclosure was again untimely, so the revised opinion would again be excluded in the second trial. Cooper moved for a continuance so that Gonzalez could depose Dr. McBride, but the judge denied the motion.
- At the second trial, Dr. McBride’s prior testimony was simply read into the record.
Per section 627.737(2), Fla. Stat., a plaintiff in an automobile accident case may only recover for non-economic damages like pain, suffering, mental anguish, and inconvenience if she has received a “permanent” injury. To establish a permanent injury, Plaintiff only relied upon the 6% permanent impairment rating (“PIR”) from her shoulder surgeon assigned just after the surgery (and apparently did not even assert that there was a permanent injury or permanent aggravation of prior injury to the neck or back).
The defendant’s doctor, Dr. Halperin, essentially opined that he examined the plaintiff two years after surgery, and her shoulder was doing just fine. Oddly, the plaintiff did not call her shoulder surgeon at the second trial, and they relied on the defense doctor to discuss the surgery and permanent impairment rating. The defense doctor said the 6% PIR had been for limitation in range of motion that existed after the surgery, but those limitations had disappeared after two years, so the PIR was 0%. On cross-examination, the doctor admitted that shaving some of the bone as part of the surgery was a permanent change inside her body, but the plaintiff was fully functional and did not qualify as permanently injured in his view.
At the close of evidence, Gonzalez moved for directed verdict due to scarring from the shoulder surgery, but she eventually agreed that the level of scarring (whether it was “significant” per the definition of permanent injury) was a matter for the jury. Gonzalez maintained, however, that the shaving of bone during the surgery was a permanent anatomical change that qualified as a permanent injury. The defense answered that a permanent anatomical change did not trigger a finding of a permanent injury under the definition in the statute. Rather, a permanent injury is one that results in
- (a) Significant and permanent loss of an important bodily function;
- (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement;
- (c) Significant and permanent scarring or disfigurement; or
- (d) Death.
The trial judge entered a directed verdict in plaintiff’s favor on the issue of permanency, and Cooper appealed.
On appeal, the DCA actually affirmed the trial court’s decision to force the defense to use Dr. McBride’s original opinion. It did not overly analyze whether the freeze order was unreasonable, particularly in light of the fact that the plaintiff had been aware of the new opinion since it had been disclosed in the middle of the prior trial.
The directed verdict was a different story. “A directed verdict is proper [only] when the evidence and all inferences from the evidence, considered in the light most favorable to the nonmoving party, support the movant’s case as a matter of law and there is no evidence to rebut it.” Because of Dr. Halperin’s opinion that there was no permanent injury (and because the “permanent anatomical change” test only existed in plaintiff’s attorney’s brain and is not found in the statute), directed verdict was improper. The DCA reversed and remanded for a third trial on everything but liability, which had been conceded. (NOTE: In this case, an ill-considered argument for DV blew up in the plaintiff’s face. The defense got fees and costs of the appeal. And now that opinion from Dr. McBride is probably getting in, right?).
https://supremecourt.flcourts.gov/content/download/864899/opinion/220079_DC08_03312023_ 084549_i.pdf
Terry P. Roberts Terry@YourChampions.com Director of Appellate Practice Fischer Redavid PLLCPDF Version
