Proving Permanent Injury in Florida Car Accident Cases – Brown v. Lunskis

One of the big questions that often comes up in a Florida car accident lawsuit is whether the injuries suffered by a party to the accident are temporary or permanent. Generally, permanent injuries will warrant higher damages awards in order to cover future medical costs and pain and suffering. In Brown v. Lunskis, the Second District Court of Appeals recently took on the issue in a case involving a driver claiming to have suffered temporomandibular joint (TMJ) condition in a car accident.

The lawsuit arose from what the court called a “relatively minor” collision in January 2009. Mr. Lunskis was driving to a doctor’s appointment in a residential neighborhood when his car clipped the rear passenger side fender of a vehicle driven by Brittany Brown. Brown had been traveling in the opposite direction and was completing a left turn when the accident occurred. Lunskis didn’t see her making the turn because his vision was obstructed by a bus. The drivers spoke and exchanged insurance information following the fender bender, but neither the police nor an ambulance were called to the scene.

Lunksis later said that he felt “achy” the next day, but didn’t seek treatment until seeing his regular physician the following week. She gave Lunskis a list of doctors who treat people injured in car accidents. He went to see Dr. Clara Creighton later the same month and continued to see her for treatment up until the start of the trial. Lunskis also went to see an orthopedic surgeon, who diagnosed him with strained ligament, a meniscus tear and a Baker’s cyst in his left knee and later performed surgery to treat the impairments. Lunskis additionally claimed that he suffered low back and neck pain as a result of the accident.

Lunskis sued Brown for negligence. While she admitted that she was at fault and that the accident caused some injury to Lunskis, Brown also argued that some or all of his knee, neck and back ailments were degenerative and not actually caused by the accident. Following trial, a jury awarded Lunskis more than $58,000 in damages to cover his medical bills. The jury further found, however, that he didn’t sustain permanent injuries in the crash.

Lunksis later filed a motion for directed verdict, arguing that the trial court improperly failed to ask the jury whether it determined that Lunskis’ TMJ, which he allegedly suffered in the accident, was permanent. As the Second District explained, Creighton testified in a video deposition that she’d determined that Lunskis suffered from TMJ on a permanent basis. Her initial examination showed that Lunskis had signs of mild TMJ pain and she said she continued to find signs of TMJ syndrome throughout her treatment of him. In a final report, she recommended that Lunskis see a TMJ specialist, but the court said Lunskis never went to any dentist or physician who specialized in TMJ. He also didn’t testify at trial about any pain related to the supposed TMJ.

The trial court granted the directed verdict for Lunskis, finding that the evidence showed that his TMJ was permanent and that he should have been awarded future damages as a result. Reversing the decision on appeal, however, the Second District said the directed verdict wasn’t appropriate because Creighton’s testimony was contradicted by that of an independent medical examiner who found that Lunskis suffered no permanent injuries in the crash. In addition, the court noted that Creighton’s determination wasn’t based on Lunskis’ complete medical record, including his history of dental problems. Finally, the court said it was unclear whether Creighton should be treated as an “expert” on TMJ because she said she normally referred potential TMJ cases to other doctors.

The Second District remanded the case with instructions that the trial court enter a judgment based on the jury’s verdict.

If you or a loved one has been injured in an accident in Florida, contact the South Florida car accident lawyers at Anidjar & Levine. From offices in Ft. Lauderdale, we serve clients throughout the area, including in Boca Raton, Coral Springs and Pompano Beach. Call us toll-free at 800-747-3733 or contact us online to schedule a free consultation.

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Proving Injury in Florida Car Accident Cases – Pack v. Geico

Causation Requirement in Florida Car Accident Lawsuits – Hernandez v. Gonzalez

Appeals Court Says Golf Cart Covered as “Vehicle” Under Florida Auto Insurance Policy – Angelotta v. Security National Insurance