Originally published in Trial Advocate Quarterly, Winter 2018, Volume 37, Number 1.

In Florida, a motor vehicle personal injury plaintiff cannot recover damages for pain and suffering unless the plaintiff first satisfies the Motor Vehicle No Fault Threshold.¹ One way for a plaintiff to meet the threshold is to show a permanent injury.² Often, the plaintiff seeks to make this showing by presenting the testimony of a treating doctor.

A defendant has at least two ways of rebutting this testimony without calling its own medical expert. First, a defendant can rebut the testimony by showing the plaintiff failed to disclose prior similar injuries to the doctor. Second, a defen­dant can rebut the testimony through lay testimony.

I.    Failure to disclose prior similar injuries to the doctor.

In Easkold v. Rhodes,³ a plaintiff pre­sented testimony from two of her treating doctors. The first doctor performed surgery on the plaintiff’s left knee, and in so doing discovered a fracture in the knee­cap. Because the only trauma the plaintiff had disclosed to the doctor was the motor vehicle accident at issue in the case, the doctor opined the accident caused the fracture. He also opined that the accident resulted in permanent injuries to the plain-tiff’s neck, back and left knee. The plaintiff told the second doctor she had no prior neck or back pain. The second doctor went on to opine that the accident caused permanent injuries to the plaintiff’s neck, back and left knee. However, deposition testimony of the plaintiff’s regular physi­cian, although not commenting on perma­nency, showed that before the accident the plaintiff received treatment for pain her neck, back and left leg. Neither of the plaintiff’s first two doctors had access to the medical records corresponding to these pre-accident complaints. The plaintiff’s own testimony showed that the plaintiff at first denied prior problems with her neck, back and knees, but later admitted she left her job after being hit in the leg at work, and that she “probably had a little backache or headache” prior to the motor vehicle accident.⁴

The jury awarded the plaintiff past and future medical expenses, as well as damages for loss of earning ability. The jury concluded the plaintiff did not sustain a permanent injury, and there-fore awarded no damages for pain and suffering. The trial court denied a motion for new trial in which the plaintiff argued “that the uncontradicted medical evi­dence indicated that she had sustained permanent injuries as a result of the auto accident.”⁵ An appellate court reversed and remanded for a new trial, finding the plaintiff’s expert testimony on perma­nency was uncontroverted because the defendant presented no medical testi­mony to the contrary, and because the plaintiff’s first two doctors did not testify that the information regarding the plain-tiff’s undisclosed, prior pain complaints and treatment would have affected their opinions about permanent injury.⁶

The jury awarded the plaintiff past and future medical expenses, as well as damages for loss of earning ability. The jury concluded the plaintiff did not sustain a permanent injury, and there-fore awarded no damages for pain and suffering. The trial court denied a motion for new trial in which the plaintiff argued “that the uncontradicted medical evi­dence indicated that she had sustained permanent injuries as a result of the auto accident.”⁵ An appellate court reversed and remanded for a new trial, finding the plaintiff’s expert testimony on perma­nency was uncontroverted because the defendant presented no medical testi­mony to the contrary, and because the plaintiff’s first two doctors did not testify that the information regarding the plain-tiff’s undisclosed, prior pain complaints and treatment would have affected their opinions about permanent injury.⁶

The Florida Supreme Court quashed the appellate court opinion and re­manded with instructions to reinstate the jury verdict, rejecting the idea that “a doctor’s medical opinion cannot be disregarded even if the medical history given to the doctor by the plaintiff is false or incomplete, unless appropriate questions are put to the doctor specifically inquiring about the effect of the false or omitted information on the doctor’s previously expressed opinion.”⁷ The court ruled that the plaintiff’s failure to disclose her prior injuries to the treating physicians, in addition to her inconsistent deposition testimony, would have been a reasonable basis for the jury to find no permanent injuries.⁸

Other courts have reached simi­lar conclusions. In Wald v. Grainger,⁹ the Florida Supreme Court noted a jury could reasonably reject a plaintiff’s medical expert opinion on permanency due to “failure of the plaintiff to give the medical expert an accurate or complete medical history.”¹⁰ In 21st Century Centen­nial Insurance Co. v. Thynge¹¹ the Fifth District reversed a plaintiff’s directed verdict on permanency in part because the plaintiff’s doctor was not provided information on prior accidents and injuries. In Reid v. Medical & Professional Management Consultants, Inc.,¹² the First District affirmed the lower court’s denial of a plaintiff’s motion for directed verdict on permanency in part because of the plaintiff’s inaccurate statements to her doctor regarding pre-accident medical complaints.¹³ In Travieso v. Golden,¹⁴ the Fourth District found no merit in the plaintiff’s “claim that the jury was not free to reject the testi-mony of the doctors with respect to the issue of permanency . . . where there is evidence that [the plaintiff] may not have accurately reported her medical history or present condition” to the doctors.¹⁵

II.   Lay testimony.

Florida Standard Jury Instruction 601.2(b) provides that a jury can reject expert testimony where other evidence so warrants. The Florida Supreme Court has noted that lay testimony alone can rebut the testi­mony of an expert:

A jury is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinions expressed, and all the other evidence in the case,
including lay testimony.¹⁶

Therefore, “[a] defendant in a per-sonal injury action is not required to present expert testimony to contra­dict the claimant’s expert testimony of permanent injuries.”¹⁷

In Weygant v. Fort Myers Lincoln Mercury, Inc.,¹⁸ a personal injury plaintiff presented testimony of two neurologists, two psychiatrists and a neurosurgeon. All of these medical experts testified the plaintiff’s injuries were a result of the motor vehicle ac­cident at issue in the case and were permanent. The defendant did not present any expert testimony. How­ever, the defendant did present the plaintiff’s testimony from a prior work­ers’ compensation matter, in which the plaintiff testified the injuries from the car accident were not incapaci­tating and that her pain was due to her workplace injury. In addition, the defendant showed the plaintiff had given confusing medical histories to her experts, creating the possibility that the experts’ opinions were based on inaccurate predicates.

In a special verdict, the jury concluded that the motor vehicle ac­cident was not the cause of the plain­tiff’s injuries. The plaintiff appealed, arguing she was entitled to a new trial because the jury’s conclusion was contrary to the uncontroverted medical testimony.¹⁹ The appellate court affirmed, ruling that the verdict was not against the manifest weight of the evidence in light of the plain­tiff’s conflicting testimony and the potentially inaccurate predicates of the experts’ opinions.²⁰ The plaintiff appealed to the Florida Supreme Court, which also affirmed, stating:

even though the facts testified to by the medi-cal expert are not within the ordinary experience of the members of the jury, the jury is still free to determine their credibility and to decide the weight to be ascribed to them in the face of conflicting lay testimony. Under Easkold, when jurors are faced with lay testimony which is in conflict with expert medical testimony, it is within their prov­ince to reject the expert testimony and base their verdict solely on the lay testimony.²¹

III. Surgery does not mean permanency.

To circumvent these defense strategies, a plaintiff who has under­gone surgery may argue that the sur­gery itself mandates a finding of per-manency. Note that Florida law does not support such an argument. In Easkold, the supreme court affirmed a finding of no permanency despite the plaintiff having undergone knee surgery.²² Similarly, in Emanuele v. Perdue,²³ the Fourth District reversed an order granting new trial where a jury found no permanency despite the plaintiff having undergone TMJ surgery.

Conclusion

Strategies for responding to claims of permanent injury without calling a defense expert should be part of defense counsel’s toolkit. In the appropriate case, the plaintiff’s failure to be candid with treating physicians, or lay testimony from another witness, will be an effective response.

1 § 627.737, Fla. Stat. (2017).

² Id. at § 627.737(2)(b).

³ 614 So. 2d 495 (Fla. 1993).

⁴ Id. at 496.

⁵ Id.

⁶ Id. at 496-97.

⁷ Id. at 497.

⁸ Id. at 498.

⁹ 64 So. 3d 1201 (Fla. 2011).

¹⁰ Id. at 1206.

¹¹ —So. 3d—, 2017 WL 6541770 at *2 (Fla. 5th DCA Dec. 22, 2017).

¹² 744 So. 2d 1116 (Fla. 1st DCA 1999) (per curiam).