Lancheros v. Burke
5/12/23, Judge Traver
Topics: Causation, Directed Verdict, Negligence
Burke alleged that Lancheros and VL Auto Transport, Inc., were liable for injuries that he suffered in a car accident. Defendants conceded fault, and the trial went forward on causation and damages.
Burke said that the accident caused a permanent injury to his back, whereas Defendants argued that the back condition was a pre-existing condition.
Burke had rowed crew competitively from his teen years (he was 24 at the time of the accident), and he had seen a chiropractor twice before due to back pain either from rowing or weight training. He did not seek treatment for his back on the date of the accident, and he did not complain of back pain at the ER later that day. He did not obtain x-rays or MRIs of the back right after the accident. He sought treatment with a chiropractor 18 days after the accident, stating that he was having lingering pain in his back after the initial soreness from the crash faded.
Each side called experts. Defendants’ orthopedic surgeon expert testified that the car crash did not cause Burke permanent injury. He testified that the most Burke would have suffered in the crash was a sprain or strain that would resolve after a few weeks of chiropractic treatment. On cross- examination, he agreed that this short course of treatment would be related to the crash.
After both parties rested, Burke moved for directed verdict on causation, and the trial court granted it on the basis that the jury could not reject uncontradicted expert findings by multiple doctors.
The jury form did not have any questions related to causation, only questions about how much the damage was.
The DCA reversed, finding that despite the uniform medical testimony as to the cause of at least the temporary back soreness, Defendants offered evidence that “rebutted” the claim of causation by showing the back injury “could have occurred for another reason.” The DCA cited United Servs. Auto. Ass'n v. Rey, 313 So. 3d 698, 703 (Fla. 2d DCA 2020), for the proposition that a jury can reject an expert’s testimony on permanency.
(NOTE: Let’s examine Rey. The general rule that juries cannot reject unrebutted medical testimony is a solid rule. For instance, Campbell v. Griffith, 971 So. 2d 232, 236 (Fla. 2d DCA 2008), states that when medical evidence on permanence or causation is undisputed, unimpeached, or not otherwise subject to question based on other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it. Campbell, 971 So. 2d at 236 (emphasis added). In Rey, the Second DCA cited Wald v. Grainger, 64 So. 3d 1201, 1205-06 (Fla. 2011), for the proposition that a jury may reject an expert's testimony on permanency where there is “conflicting medical evidence, evidence that impeaches the expert's testimony or calls it into question, such as the failure of the plaintiff to give the medical expert an accurate or complete medical history, conflicting lay testimony or evidence that disputes the injury claim, or the plaintiff's conflicting testimony or self-contradictory statements regarding the injury”). In Rey, for instance, there was substantial evidence of a preexisting knee condition prior to the accident, there was conflicting testimony about whether the knee healed prior to the accident (the plaintiff said it had but then said it was still having significant symptoms right up to the date of injury), the jury was permitted to question the doctor’s bias because he treated under a letter of protection, and the evidence permitted the jury to conclude that the plaintiff had not reported her knee condition accurately to her doctor or that the doctor forgot about the significant prior injury). Here, the DCA found that the jury could disbelieve Burke’s testimony that his back was sore due the accident because he did not seek treatment for the back even though he went to the ER, and he first complained of back pain 18 days after the accident. Thus, the jury could have concluded that Burke’s soreness was due to the preexisting back injury.
The DCA admitted that given the weight of the evidence, “perhaps this would not have been a likely outcome,” but it was enough to make a directed verdict error. (NOTE: This opinion seems to leave intact the rule that judges cannot disregard uncontested medical evidence. That rule simply has exceptions if a doctor is impeached or there is some evidence that the plaintiff lied or provided incomplete patient history).