FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, George W. Maxwell
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.
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.
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.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.
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)).
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).
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
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.
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.
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
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