43
Fla. L. Weekly D29aTop of Form

Insurance
— Uninsured/underinsured motorist — Trial court erred by entering directed
verdict in favor of plaintiffs on issues of causation and permanency of injury
where there was sufficient conflicting evidence upon which jury could have
based its decision — Trial court erred in granting new trial based on
plaintiffs’ contention that trial court improperly limited their questioning
during voir dire where plaintiffs failed to notify trial court of any challenge
to the purported limitation of voir dire

21ST CENTURY CENTENNIAL INSURANCE
COMPANY, Appellant, v. ELIZABETH THYNGE AND HOWARD THYNGE, Appellees. 5th
District. Case No. 5D16-1575. Opinion filed December 22, 2017. Appeal from the
Circuit Court for Brevard County, George W. Maxwell III, Judge. Counsel:
Rosemary B. Wilder, of Marlow, Adler, Abrams, Newman & Lewis, Coral Gables,
Katherine E. Giddings and Diane G. DeWolf, of Akerman, LLP, Tallahassee, Irene
A. Bassel-Frik and Jason L. Margolin, of Akerman, LLP, Tampa, for Appellant.
Annabel C. Majewski, and Roy D. Wasson, of Wasson & Associates, Chartered,
Miami; and Jason Herman and Karen Wasson, of The Law Offices of Dan Newlin
& Partners, Orlando, for Appellees.

(PER CURIAM.) 21st Century
Centennial Insurance Company (“21st Century”) appeals the trial court’s order
granting a new trial and directing a verdict in favor of Elizabeth and Howard
Thynge (“Appellees”). Because the trial court incorrectly entered judgment in
accordance with the directed verdict and granted a new trial, we reverse and
remand for reinstatement of the jury verdict.

This appeal arises from Appellees’
claim for uninsured/under-insured motorist coverage against 21st Century after
a 2013 motor vehicle accident. Before trial, the lower court struck 21st
Century’s only three experts related to causation and permanent injury.1 The case nevertheless went to trial,
with only Mrs. Thynge and her neurosurgeon, Jonathan Paine, M.D., testifying as
to causation and permanency. At the close of 21st Century’s case, Appellees
moved for a directed verdict on the issues of causation and permanency, arguing
that 21st Century failed to rebut Dr. Paine’s testimony with any medical
testimony of its own. The trial court reserved ruling on the motion, and the
case went to the jury. The jury returned a verdict finding the accident caused
loss, injury, or damage but did not find that Mrs. Thynge sustained a permanent
injury. The jury awarded only $7000 for lost wages. After trial, Appellees
moved for judgment in accordance with their motion for directed verdict and for
a new trial. The trial court granted that motion, and this appeal followed.

“A trial court’s ruling on a motion
for judgment in accordance with a prior motion for directed verdict is . . . reviewed
de novo.” Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 152, 157
(Fla. 4th DCA 2012). “A motion for directed verdict should be granted only
where there is no reasonable evidence upon which a jury could legally predicate
a verdict in favor of the non-moving party.” Volusia Cty. v. Joynt, 179
So. 3d 448, 450 (Fla. 5th DCA 2015) (quoting Benitez v. Joseph Trucking,
Inc., 68 So. 3d 428, 430 (Fla. 5th DCA 2011)). Likewise, a directed verdict
“is not appropriate in cases where there is conflicting evidence as to the
causation or the likelihood of causation.” Cohen v. Philip Morris USA, Inc.,
203 So. 3d 942, 949 (Fla. 4th DCA 2016) (quoting Friedrich v. Fetterman
& Assocs., P.A., 137 So. 3d 362, 365 (Fla. 2013)).

Here, the jury initially determined
that Mrs. Thynge did not sustain a permanent injury because of the accident.
Although “determinations about the permanency of an injury are generally made
by juries,” a court may direct a verdict on permanency for the plaintiff “where
the evidence of injury and causation is such that no reasonable inference could
support a jury verdict for the defendant.” Wald v. Grainger, 64 So. 3d
1201, 1204 (Fla. 2011). Specifically, 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.” Brown v. Lunskis, 128 So. 3d 77, 80 (Fla. 2d DCA
2013) (citing Wald, 64 So. 3d at 1204).

Dr. Paine performed a two-level
cervical fusion on Mrs. Thynge and, through a published deposition at trial,
opined that the accident led to aggravation of Mrs. Thynge’s preexisting neck
problems caused by degenerative disc disease. He also rendered the
far-from-conclusive opinion regarding permanency that it was “possible” Mrs.
Thynge would require future surgery and that she “probably has an approximately
15 to 20 percent added risk of a degenerative change accelerated by the
presence of the fusion.” Because the trial court struck its experts, 21st Century
could not present contradictory expert testimony on causation and permanency.
21st Century argues, however, that the motion for directed verdict should not
have been granted because Mrs. Thynge gave an incomplete medical history to Dr.
Paine and provided conflicting testimony regarding the accident and her
injuries.

In support, 21st Century points out
that Dr. Paine testified that he saw Mrs. Thynge only three times and
recommended surgery due to compression of the nervous system to her neck.
However, he had no idea how long the compression was actually there or how long
Mrs. Thynge had degenerative disc disease. He testified that Mrs. Thynge wanted
her neck fixed, so he treated her with that objective in mind. After healing
from surgery, he gave Mrs. Thynge no restrictions and assigned a fifteen
percent disability rating. Dr. Paine further testified that he had no knowledge
of whether Mrs. Thynge had ever complained of or received treatment for neck
pain prior to the June 2013 accident or whether Mrs. Thynge had any prior
accidents. He also was not provided, nor did he review, any prior medical
records or diagnostic studies. Mrs. Thynge acknowledged, however, that she had
a work-related injury in 1999, which required lower-back surgery. She also
testified that she had a prior automobile accident in Delaware, in 2000 or 2001,
and an emergency C-section in 2010, requiring an epidural into the prior
lower-back surgery site, which caused her symptoms to reoccur.

21st Century also offered the
testimony of Ara Deukmedjian, M.D., a neurosurgeon who saw Mrs. Thynge after
the accident. Contrary to the testimony of Dr. Paine, Dr. Deukmedjian testified
that Mrs. Thynge was not suffering from nerve compression in the neck. Although
Mrs. Thynge had muscle spasms on both sides of her neck, Dr. Deukmedjian saw no
indication of a pinched nerve. Dr. Deukmedjian also testified that Mrs. Thynge
had degenerative disc disease and facet syndrome, which he described as the
most common cause of neck pain in the United States.

Mrs. Thynge also provided
conflicting testimony about what happened at the scene of the accident. For
example, Mrs. Thynge initially stated that she did not remember anything about
the accident. She did not remember getting out of her car or receiving an EMT
examination. She claimed she could remember only being in the emergency room
with one of her co-workers after the accident and having a bad headache. She
later stated, “No, I remember someone banging on the window and I remember
asking my sister if someone hit us,” and she also testified that she remembered
being on the stretcher. Additionally, the EMT who tended to Mrs. Thynge at the
accident scene contradicted Mrs. Thynge’s testimony by stating that she “was up
and walking around the scene itself” and “denied any neck or back pain.”

Because Dr. Paine was not given
complete information regarding Mrs. Thynge’s prior medical history, his
opinions regarding causation and permanency were called into question, and the
jury could properly reject them. See Wald, 64 So. 3d at 1204. In
addition, Mrs. Thynge’s inconsistent testimony about what occurred at the
accident scene provides sufficient conflicting evidence upon which a jury could
have based its decision. See id. at 1206. Thus, the trial court erred by
entering a directed verdict on causation and permanency, and we reverse and remand
for reinstatement of the jury’s verdict.

21st Century also challenges the
trial court’s granting of a new trial. Appellees claim they were entitled to a
new trial because the trial court improperly limited their questioning during
voir dire. Because Appellees failed to notify the trial court of any challenge
to the purported limitation of their voir dire, they could not subsequently
seek a new trial on this ground. See Wallace v. Holiday Isle Resort &
Marina, Inc., 706 So. 2d 346, 347 (Fla. 3d DCA 1998) (“[W]ithout a renewal
of an earlier objection, it is reasonable to conclude that events occurring
subsequent to the objection may have caused the objecting party to become
satisfied with the jury about to be sworn.” (citing Joiner v. State, 618
So. 2d 174, 176 (Fla. 1993))). Accordingly, we reverse the order granting a new
trial.2

REVERSED and REMANDED with
Instructions. (COHEN, C.J., EVANDER, J., and EGAN, R., Associate Judge,
concur.)

__________________

1The experts at issue are the
compulsory medical examination physician, a biomechanical engineer, and a
medical coding expert.

2Because we reverse the order
granting a new trial, we do not address 21st Century’s challenges, in the
alternative, to the striking of its experts and the denial of its motion to
disqualify Appellees’ counsel.

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