In Florida personal injury cases, the question of whether a plaintiff’s injuries are permanent is one typically left to the jury. Recently, however, the Florida Supreme Court explained that under certain circumstances a court is entitled to answer the permanency question itself, directing a verdict on the issue.

In Wald, Jr. v. Grainger, etc., the court held that the trial court properly directed a verdict for the plaintiff on the issue of permanency where the evidence of injury and causation were such that no reasonable inference could support a jury verdict for defendant and where, although the medical experts disagreed as to the medical cause of the plaintiff’s injury, they agreed that petitioner sustained a permanent injury to his right thigh that was causally related to the accident.

Petitioner Howard Wald, Jr. alleged injuries to his neck, back, right arm, foot, and thigh stemming from a car accident with Sam Gus Felos. Since the defendant admitted fault, the only issues for the jury to consider were causation, the permanency of Wald’s injuries and damages. Two doctors testified at trial: Wald’s treating physician stated that Wald’s injuries, including his right thigh injuries, were permanent and connected with the accident; the defendant’s expert physician testified that Wald had permanent right thigh numbness and gave Wald “the benefit of the doubt” that the condition was related to the accident.

Over the defendant’s objection, the trial court granted Wald’s motion for directed verdict on permanency, but only as to the right thigh injury. The jury entered judgment for Wald and awarded him over $1 million in damages for his injuries.

On appeal, the First District Court of Appeals reversed the final judgment, holding that because the permanency issue was a jury question, the trial court erred in directing the verdict. According to the Florida Supreme Court “[t]he First District explained that a jury is free to weigh the credibility of expert witnesses as it does any other witness and to reject any testimony regarding permanency, including uncontradicted testimony.”

Upon further appeal, however, the Supreme Court determined that the directed verdict was not improper. In an opinion written by Justice Charles T. Canady, The court ruled that while “[d]eterminations about the permanency of an injury are generally made by juries….where the evidence of injury and causation is such that no reasonable inference could support a jury verdict for the defendant, it is not improper to direct a verdict on the permanency issue for the plaintiff.” In other words, once a plaintiff has established a prima facie case of permanency by presenting expert testimony, 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.”

Accordingly, the court quashed the First District’s decision and remanded the matter for reinstatement of the jury verdict.

The South Florida law firm of Anidjar & Levine, P.A. handles personal injury lawsuits for individuals and families in Ft. Lauderdale and surrounding areas, including Pompano Beach, Coral Springs, Hialeah and Hollywood.

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