Choose a Topic

View Our Case Results
Kelley/Uustal Practice Areas

Kevin Boyles v. A&G Concrete Pools, Inc., et al., Case No. 4D12-3334 (4th DCA)

In Boyles, the Fourth DCA affirmed a final judgment entered in favor of the defense after jury trial. The plaintiff, on appeal, argued that the trial court erred in admitting a physician’s testimony that a surgery performed on the plaintiff was unnecessary, and the trial court additionally erred in denying the plaintiff’s motion for new trial. The Fourth DCA disagreed with both of the plaintiff’s arguments.

The plaintiff was a front seat passenger in a utility truck that was struck from behind. At the time of the accident, the plaintiff said that he hit his head on the dashboard. He complained of pain, and advised paramedics that he had been involved in an accident in 2011 and has suffered four herniated discs as a result. The plaintiff subsequent saw numerous physicians, including an orthopedic surgeon and a neurosurgeon. The court noted that the plaintiff did not initially tell any of the treating physicians about his prior accidents. After his treating physicians learned of his prior accident, the plaintiff informed them that he was symptom free a long stretch of time before the subject accident. The court noted, however, that evidence demonstrated that the plaintiff had been involved in numerous prior accidents, and had complained of pain for many years following those accidents and leading up to the subject accident.

The plaintiff first argued that the trial court erred in admitting testimony from a defense expert that the surgeries performed on the plaintiff were unnecessary. The plaintiff argued that the trial court had, early in the case, granted a motion in limine precluding CME doctors from testifying that surgery was not medically necessary. The Fourth DCA ruled that the issue was not properly preserved. The Fourth DCA criticized the plaintiff’s strategy of scheduling a hearing on a boilerplate motion in limine less than one year into the suit, when discovery was ongoing, expert discovery had not begun and no trial was set. The court noted that Fla. Stat. 90.104 provides that if “the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” However, the Fourth DCA found that given the circumstances, the trial court had not made a definitive ruling excluding evidence when it ruled on the initial motion in limine, given that the evidence did not even exist at that time. Accordingly, in the absence of a contemporaneous objection, the plaintiff failed to preserve the objection for appeal.

The Fourth DCA went further, ruling that even if the objection was preserved, the court would still affirm. The court distinguished those cases in which inappropriate or unnecessary surgery was claimed by the defendants to have worsened the plaintiff’s condition. In those cases, the tortfeasor is liable for the negligent medical treatment of an injury which increases the plaintiff’s damages. In this case, the defense expert was not going to testify to a surgery worsening the plaintiff’s condition, but instead the expert was to testify about whether the surgeries were necessary as a result of the subject accident. The Fourth DCA found that such testimony was admissible.

The Fourth DCA also ruled that the trial court was within its discretion to deny the plaintiff’s motion for new trial. The Fourth DCA found that the defendants did not admit liability during the trial. In addition, the Fourth DCA disagreed with the plaintiff’s assertion that the evidence was uncontroverted that he had suffered harm from the subject accident. The court noted 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.” The jury’s ability to reject expert testimony must be founded on some reasonable basis in the evidence. This reasonable basis can include: conflicting medical evidence; evidence that impeaches the credibility or basis for an expert’s opinion; the lack of candor of the plaintiff in disclosing prior accidents, prior medical treatment, and prior or subsequent similar injuries; conflicting lay testimony or evidence that disputes the injury claim; or the plaintiff’s overall credibility relating to conflicting statements regarding the alleged injury. The Fourth DCA found that the jury had heard substantial evidence demonstrating the plaintiff was less than candid with his treating physicians, and therefore, the jury had a reasonable basis to reject the doctors’ opinions. Accordingly, the Fourth DCA affirmed the final judgment.


Recognized as One of the Nation's Best Law Firms

Don't just take our word for it. See it for yourself.

Client Reviews & Testimonials
  • AV Peer Review Rated
  • Florida Super Lawyers
  • South Florida Top Rated Lawyers
  • Best Law Firms
  • The Best Lawyers in America
  • The National Trial Lawyers - Top 100 Trial Lawyers
  • South Florida Business Journal - 2017  Best Places to Work
  • Sun Sentinel - 2017 Top Work Places
© 2014 All Rights Reserved The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.