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Williamson v. Superior Insurance Co.5/5/1999
y be denied and the case submitted to the jury if conflicting evidence has been presented by the parties. When a plaintiff presents expert testimony to support a claim of a permanent injury, the defense, in order to survive a motion for a directed verdict, must come forward with either countervailing evidence on the permanency issue or must severely impeach the proponents experts. See Holmes v. State Farm Mut. Auto Ins. Co., 624 So. 2d 824 (Fla. 2d DCA 1993). A jury is free to determine the credibility of expert testimony and decide what weight should be ascribed to such testimony in light of conflicting evidence - including lay testimony. See Easkhold v. Rhodes, 614 So. 2d 495 (Fla. 1993). However, a jury is not free to reject uncontroverted medical testimony indicating a permanent injury. See Vega v. Travelers Indem. Co., 520 So. 2d 73 (Fla. 3d DCA 1988); Short v. Ehrler, 510 So. 2d 1110 (Fla. 4th DCA 1987).
In the instant case, the medical experts testifying on behalf of Mr. Williamson stated that he had sustained a permanent injury as a result of this accident. While the two experts offered by Superior took issue with certain aspects of Mr. Williamson's experts' testimony, neither Dr. Greenberg nor Dr. Slomka said there was no permanent injury caused by this accident. In fact, both agreed that an aggravation of a nonsymptomatic arthritis would be considered a permanent exacerbation.
There is no evidence to refute Mr. Williamson's claim of a permanent injury . Therefore, the jury's verdict finding no permanent injury was against the manifest weight of the evidence. The jury was not free to reject the uncontroverted medical testimony indicating a permanent injury. See Vega v. Travelers Indem. Co. The Williamsons were entitled to a directed verdict on the issue of permanency.
Superior has cross-appealed two evidentiary rulings made by the trial court, the failure to admit medical records of Mr. Williamson's visit to a physician concerning chest pains and the failure to admit a surveillance tape. Both items of evidence are relevant to the issue of the extent of damages. Mr. Williamson claims his injuries are such that he cannot perform the activities involved in his lawn care business. He claims damages based on having to hire additional help to carry out work he could have performed prior to this accident. To the extent that the medical records contain Mr. Williamson's statements about his physical activities and the surveillance tape depicts Mr. Williamson engaged in physical activities, these items are relevant to the issue of damages and should be admitted at any subsequent proceedings. See Otis Elevator Co. v. Youngerman, 636 So. 2d 166 (Fla. 4th DCA 1994); Marion County v. Cavanaugh, 577 So. 2d 599 (Fla. 5th DCA 1991).
We, therefore, reverse the final judgment, and remand for entry of the directed verdict on the permanent injury and for further proceedings on the issue of damages.
BLUE, A.C.J., CASANUEVA, J., and QUINCE, PEGGY A., ASSOCIATE JUDGE, Concur.
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