Poland v. Zaccheo, 82 So. 3d 133, 134 (Fla. Dist. Ct. App. 2012), reh’g denied (Mar. 30, 2012)
This rear end collision auto accident in West Palm Beach, Florida, involved an insured motorist who brought suit against a driver who rear ended her automobile. The main issue in this lawsuit is whether the Defendant was the proximate cause of the injuries suffered by the Plaintiff.
The rear end collision occurred on February 17, 2006, while Audra Poland and her daughter were driving home from a family member’s baseball came. Poland testified that when her vehicle came to a stop near an intersection, Zaccheo’s SUV collided into the rear to Poland’s car. After the accident Poland experienced pain in her back and neck and after months of continued soreness, she followed the advice of an orthopedic surgeon and had a discogram performed on in December of 2006. After the procedure Poland lower back pain worsened and she began to have continuous muscle spasms.
At Polands trial to recover from Zaccheo for her injuries, defense counsel called a board certified orthopedic surgeon to testify that the auto accident had caused only a temporary cervical strain. The surgeon testified that the majority of her injuries were attributable to her already existing disc bulges and degeneration with her obesity. The surgeon also concluded that Poland suffered no permanent injuries and would not need future treatment.
Poland’s counsel attempted to question Zaccheo’s witness as to his opinion whether Poland’s surgeries were related to the auto accident. Zaccheo’s counsel objected to the question what the surgery was related to, if it was not related to the accident? The court sustained the objection. Zacceho’s counsel re-examined the surgeon elicited the testimony that it would be unusual or extremely improbable for a person to receive a multiple-level disc injury from a car accident.
The jury found that Zaccheo and Poland were both negligent assigning 90% of liability of Zaccheo and 10% to Poland awarding $10,000 for past medical expenses $4,400 for past lost earnings. The jury concluded that Poland did not suffer a permanent injury within a reasonable degree of medical probability resulting from the accident and that Poland would not incur future medical expenses or lost wages.
On appeal the 4th circuit court held that the trial court limited the scope of the cross-examination of the surgeon on the proximate cause of Poland’s injuries and that it should have at least allowed Poland’s attorney to explore the surgeon’s opinion in regards to the causation of her injuries to refute the notion that Poland’s injuries were not proximately caused by the accident. The court reasoned that by denying a full cross-examination the trial court abused its discretion because if a portion of an event is brought out on direct examination the rest can be brought out on cross examination. The court reversed the jury verdict and concluded that while the trial judge can impose some reasonable limitations on cross examination of matters testified to on direct examination the trial courts denial of full examination of the surgeon regarding the proximate cause of Poland’s injuries and the resulting surgeries which was the main issue disputed at trial.
This case illustrates that the party who seeks to recover for future medical expenses and loss wages as a result of an accident must demonstrate 2 issues. One the plaintiff must show within a reasonable degree of medical probability that they suffered a permanent injury and two that the defendant was the proximate cause of the injury.
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