AFTER THE TRIAL COURT GRANTED A NEW TRIAL FOR THE PLAINTIFF IN AN AUTOMOBILE ACCIDENT CASE BASED ON INSTANCES OF DEFENDANT’S MISCONDUCT DURING TRIAL, THE FOURTH DISTRICT REVERSED AND REINSTATED THE JURY’S DEFENSE VERDICT.
State Farm v. Medina, 45 Fla. L Weekly D1597 (Fla. 4th DCA July 01, 2020):
The plaintiff was rear-ended and sued for permanent injuries she sustained to her lower back. The plaintiff described the impact as “very strong,” but the court said the evidence at trial established that it was a low impact accident with little physical damage to the plaintiff’s vehicle. The plaintiff’s doctors and experts testified that the injury was caused by the accident, while State Farm’s expert testified it was due to age-related degenerative changes in the fifty-four year old plaintiff.
The jury rendered a defense verdict, finding that the accident was not the legal cause of the plaintiff’s injuries. Plaintiff sought a new trial based on several errors made by defense counsel and a defense expert witness (but not claiming that the verdict was against the manifest weight of the evidence). The trial court granted the plaintiff a new trial finding the cumulative effect of four instances of misconduct necessitated such a ruling. The misconduct alleged was as follows: (1) a comment by the defense expert impugning plaintiff’s counsel; (2) an unpreserved comment by the defense expert that a finding in plaintiff’s expert’s report was “clearly incorrect”; (3) defense counsel’s question to plaintiff about whether she retained an attorney before seeking medical treatment; and (4) an unpreserved comment by defense counsel in closing argument regarding State Farm’s wealth.
The Fourth District noted that the standard of review is abuse of discretion, and reminded us that it takes a stronger showing of error to reverse an order granting a new trial than one denying a new trial.
State Farm’s hired doctor stated on cross that he didn’t know if plaintiff’s attorney was asking him a question “but I’m not a plaintiff’s attorney and I don’t give my opinion based on money.” The Fourth District viewed the comment in context, stating that plaintiff’s counsel “relentlessly and aggressively” questioned the defense expert about how much he charged for one case, and how many cases he had testified in, and how much money he had made over the years. While State Farm conceded the comment was not appropriate, the court found that the comment was inadvertent and the result of “extensive witness badgering on part of plaintiff’s counsel.”
Before trial, the judge had granted a motion in limine prohibiting the defense expert from commenting on other experts. Still, the defense expert testified that the plaintiff’s expert’s conclusions were clearly wrong.
The court said that experts may properly explain their opinions by outlining the claimed deficiencies, along with the opposing expert’s methodology, as long as the expert does not attack the opposing expert’s ability, credibility, reputation or competence. While the plaintiff objected, she failed to move for a mistrial after the objection was sustained, and the Fourth District concluded that while the comment was improper and violated the motion in limine, it did not rise to the level of fundamental error (because without moving for a mistrial, the objection was not preserved—remember that!).
The question about when the plaintiff retained an attorney was also improper and irrelevant. Unfortunately, because plaintiff’s counsel had erroneously introduced an unredacted questionnaire into evidence during the plaintiff’s direct examination, defense counsel was permitted to ask that question, eliminating that as a basis for reversible error.
Finally, State Farm improperly interjected its wealth by noting it has a big name, big lights, big tv commercials, and arguing that just because it was on the other side of the case, the jury should not use that to just give the plaintiff money.
The court stated that the plaintiff did not object to those specific improper comments, and they were made after State Farm’s counsel had detailed how the evidence in the case had failed to support plaintiff’s claim that the accident caused her injuries. The court concluded that in context, the comments were not an invitation to decide the case on the improper basis of financial status of the parties.
Finally, in assessing the assertion of cumulative error, the court stated that where multiple errors are found, even if they are deemed harmless individually, the cumulative effect may deny a fair and impartial trial. However, because the court concluded that the comments were either proper, invited by the plaintiff’s attorney, or not so prejudicial as to warrant a new trial, the cumulative effect could not be said to have denied the plaintiff a fair and impartial trial, and as such, the court reversed the order