A trial court cannot intrude on the province of the jury in deciding which expert testimony to believe.

Duclos was an automobile negligence case where the plaintiff sought relief based on Fla. Stat. 627.737(2), which allows a plaintiff to seek damages in tort "arising out of the...operation, or use of [defendant's insured] motor vehicle only in the event that the injury consists in whole or in part of:...(b) Permanent injury within a reasonable degree of medical probability." During the trial, the plaintiff presented three expert witnesses who all testified that the plaintiff's neck injuries were permanent. The defense called an orthopedic surgeon who opined the plaintiff's neck injury was not permanent within a reasonable degree of medical probability. After the defense's expert testified, and again at the end of the evidence, the plaintiff moved for a directed verdict on the issue of permanency, which the trial court denied both times. At the conclusion of trial, the jury returned a verdict finding for the plaintiff, but also finding the plaintiff's neck injury from the accident was not permanent, and awarded no future medical expenses. The plaintiff filed a motion for new trial and renewed the motion for a directed verdict, or JNOV, regarding the permanency, which the trial court granted. The trial court found the orthopedic surgeon's testimony was "incredulous," "confusing, mistaken and not reasonable in light of all the other evidence in the case and expert medical testimony regarding permanency of plaintiff's injuries resulting from the accident." The First District Court of Appeal held the trial court's "determination that the defense's expert's opinion testimony was not credible and should not be given any weight, invaded the province of the jury" because granting a JNOV, or directed verdict, due to expert testimony related to permanency, is only appropriate if: (1) a jury rejects expert medical testimony that an injury caused by an auto accident is permanent without any contrary evidence on the record, or (2) if there is contrary evidence in the record, but the expert's testimony is so "equivocal, confusing and internally contradictory and irreconcilable as utterly to lack any probative value." Due to the fact that this doctor did not waver in questioning regarding his expert opinion, the doctor's qualifications were not questioned, and, because the doctor's testimony did not introduce outside considerations, the court held that the trial court improperly granted the JNOV.

Case Law Alert, 3rd Quarter 2013