5D01-3466 5D01-3517 Goss v. Permenter

State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-3466

Case Date: 08/19/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2002

SAMUEL J. GOSS, D.O., et al, Appellants, v. ARTHUR PERMENTER and JEAN PERMENTER, Appellees. ________________________________/ Opinion filed August 23, 2002 Appeal from the Circuit Court for Lake County, Theron Yawn, Jr., Senior Judge. Rafael E. Martinez and G. Franklin Bishop, III of McEwan, Martinez & Dukes, P.A., Orlando, for Appellant Sharon Nichols, D.O. Jennifer S. Carroll and Diane F. Medley of Law Offices of Jennifer S. Carroll, P.A.,Palm Beach Gardens, for Appellant Samuel J. Goss, D.O. and Cardiovascular Associations of Lake County, P.A. Stephen J. Knox or Morgan, Colling & Gilbert, P.A., Orlando, for Appellees. SHARP, W., J. In this consolidated appeal, Samuel Goss, D.O., Sharon Nichols-Sells, D.O. and Cardiovascular Associates of Lake County, P.A., appeal from final judgments rendered against them after a jury trial, which included costs, attorney fees and interest. After a close review of the transcript and record, we find CASE NOS. 5D01-3466 5D01-3517

no reversible error, although we agree with appellants that based on the recent case decided by the Florida Supreme Court, Amerace Corp. v. Stallings, 27 Fla. L. Weekly S566 (Fla. June 13, 2002), interest on the judgments must be recalculated on remand, to accrue from date of the judgment rather than the date of the verdict. Dr. Goss's first point on appeal is that the trial court erred in not allowing defense counsel to impeach the plaintiff's expert, Dr. Gold, at trial, with testimony he gave at a pre-trial deposition. On direct examination, Dr. Gold testified that if certain remedial steps had been taken to stop the hemorrhage Mr. Permenter was experiencing in his brain at 9:30 in the morning, it was "possible" he would have had no neurologic defects, or he could have been left with mild ones. On cross-examination, Dr. Gold said it was "more likely than not" that Mr. Permenter would have had no neurologic damage, or much more mild neurologic damage than he has at this point had remedial steps been taken at that point in time. Defense counsel then sought to impeach him with his deposition testimony, in which he stated had the remedial steps been taken at that time, he believed Mr. Permenter would have ended up with less neurologic damage than he subsequently suffered, and that it was "possible" he would have had no damage, or mild neurologic damage. Although Dr. Gold uses slightly different words, i.e., "possible" and "more likely than not", and "no" defects or "no damage", and "mild" defects or "mild damage", the clear inconsistency usually required for impeachment purposes is not apparent to us. See Charles W. Ehrhardt, Florida Evidence,

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