07-1187 JOHN J. JONES v. MARY D. ATKINSON

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State: Florida

Court: Florida First District Court

Docket No: 07-1187

Case Date: 02/19/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JOHN J. JONES, Appellant, v. MARY D. ATKINSON, an individual, Appellee. _________________________________/ CASE NO. 1D07-1187 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Opinion filed February 19, 2008. An appeal from the Circuit Court for Nassau County. Brian J. Davis, Judge. Stephen E. Day and Rhonda E. Boggess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellant. Bryan S. Gowdy of Mills & Creed, P.A., Jacksonville, for Appellee.

KAHN, J. Appellant John J. Jones, the defendant below, appeals the trial court's order granting a new trial. We must reverse because the trial judge ordered a new trial for reasons not legally sustainable. BACKGROUND This case arose from an automobile accident in Nassau County on April 20, 2004, when appellee Mary Atkinson, driving west on State Road A1A, collided with

appellant's one-ton pickup truck with a travel trailer in tow, turning to the north, across A1A at its intersection with Interstate 95. Ms. Atkinson sustained back and neck injuries that, according to her, caused persistent pain. She filed this lawsuit on March 30, 2005, to recover damages for, among other things, bodily injury, pain and suffering, disability, hospitalization expenses, medical and nursing care and treatment, and aggravation of a pre-existing condition. At trial, the parties intensely disputed whether Ms. Atkinson's negligence contributed to the accident and whether she sustained permanent injuries requiring future medical care. Mr. Jones theorized at trial that Ms. Atkinson negligently changed lanes, from the left westbound lane of A1A, which was obstructed by vehicles waiting for Mr. Jones to cross, to the unobstructed right lane, where the impact occurred. Appellant also produced the testimony of an accident reconstructionist, who testified that Ms. Atkinson might have contributed to the accident by changing lanes suddenly and failing to brake to avoid the impact. Ms. Atkinson testified she had maintained her course in the right lane at all times, but that she remembered little else about the accident sequence after defendant's truck appeared in her path. The parties also disputed whether Ms. Atkinson sustained permanent injuries requiring future medical treatment. Appellee's examining neurologist, Dr. Manley

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Kilgore, diagnosed several sprain and soft-tissue injuries that would likely cause permanent discomfort and "set up a chronic pattern of pain." Her treating

chiropractor, Dr. Kerry Kornacki, testified Ms. Atkinson sustained a "permanent injury" to her lower back and would "have an increase in her symptoms and . . . may actually [need] further invasive-type treatments." Dr. Christopher Roberts, Ms. Atkinson's pain management physician, testified she would require, among other things, epidural and facet injections, periodic diagnostic imaging, and visits to doctors to manage her pain, which would likely worsen "for the rest of her life." Appellant offered a different perspective; his expert neurologist, Dr. James Nealis, testified during a videotaped deposition played before the jury that, upon examining appellee, he found no permanent injuries

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