8 Fla. L. Weekly Supp. 606a
Insurance — Personal injury protection — Prejudicial error occurred when defendant’s expert witness gave improper response to hypothetical question and testified to matters outside his expert medical knowledge — Law unclear whether evidence of separate lawsuit is proper in PIP claim — Allowing evidence of impairment rating not proper when its only purpose is to suggest separate litigation — New trial required
VALERIE GRAY, Appellant, v. LIBERTY MUTUAL INSURANCE CO., Appellee. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Division. Case No. AP 99-5570 AY. Opinion filed August 3, 2001. Appeal from the County Court in and for Palm Beach County, Krista Marx, Judge. Counsel: For Appellant, Stephen R. Koons, West Palm Beach, FL. For Appellee, Richard S. Sherman, Ft. Lauderdale, FL and Patrick Shawn Spellacy, Boca Raton, FL.
(PER CURIAM.) Prejudicial error occurred when the defense’s expert witness gave an improper response to a hypothetical question and testified to matters that were outside of his expert medical knowledge. (Tr. at 167); Johnson v. State, 314 So.2d 248, 252 (Fla. 1st DCA 1975). Therefore, the lower court’s judgment must be REVERSED.
Furthermore, the law is not clear on whether the evidence of a separate lawsuit is proper evidence in a PIP claim. In Zenchak v. Kaeufer, the Fourth DCA held that testimony of such evidence is proper when it is relevant to a present injury. 612 So.2d 725, 727 (Fla. 4th DCA 1993). On the other hand, in Colvin v. Williams, the court found that allowing evidence of an impairment rating was reversible error where its only purpose is to suggest separate litigation. 564 So.2d 1249, 1250-51 (Fla. 4th DCA 1990). However, this case is distinguishable from Zenchak because in that case the plaintiff’s past behavior in a previous lawsuit “was relevant to determine the extent of any future injury.” 612 So.2d at 727. In contrast, here, the defense was trying to show that the possibility of a future lawsuit could be another motive for alleging an injury and not that any past injury had a bearing on her current or future condition. Under Colvin, evidence of an impairment rating to show that a personal injury claim exists is not permissible evidence. 564 So.2d at 1250.
For these reasons, the decision of the Trial Court is REVERSED and this case is REMANDED for a new trial consistent with this opinion. (BARKDULL, BLANC, and RAPP, JJ., concur.)
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