TRIAL COURT ABUSED DISCRETION BY SETTING ASIDE JURY VERDICT IN PLAINTIFF’S FAVOR AND DISMISSING CASE BASED ON PLAINTIFF’S GIVING OF INCONSISTENT TESTIMONY REGARDING PRIOR MEDICAL TREATMENT – DEFENSE COUNSEL COULD HAVE SOUGHT A PRE-TRIAL OR IN TRIAL REMEDY BUT MADE A TACTICAL DECISION TO PRESENT THE ISSUE TO THE JURY, AND THE JURY RETURNED A VERDICT FOR THE PLAINTIFF DESPITE THE INCONSISTENCIES
Salazar v. Gomez, 46 Fla. L. Weekly D387 (Fla. 3rd DCA February 17, 2021):
A 23-year-old body builder and personal trainer was involved in a car accident, and sustained neck injuries requiring surgery due to a herniated disc. During his deposition, plaintiff disclosed that he had previously been involved in a minor fender bender the year before, but did not sustain any injuries and did not receive any treatment from that accident. He testified that he had sustained injuries while competing at CrossFit, and had received physical therapy for sports related muscle aches. He denied ever having been treated by an orthopedic surgeon.
A week before trial, defense counsel received medical records, which on their face appeared to contradict the plaintiff’s prior testimony about prior medical treatment. Defense counsel did not seek a continuance to conduct more discovery, or request an updated deposition, or bring any pre-trial motions regarding the alleged late discovery or inconsistencies.
Instead, the parties proceeded to trial where defense counsel confronted the plaintiff with the alleged inconsistencies. The plaintiff explained that he may have misspoken regarding prior treatment by an orthopedic surgeon and maintained that his prior chiropractic treatment was related to fitness activities, and not any accident.
The jury found for the plaintiff, and apportioned the majority of negligence to the defendant. Following the verdict, the defendant moved to dismiss for fraud and/or for a new trial, realleging the same inconsistencies that were presented to the jury. The trial court granted the motion and dismissed the case with prejudice.
The court agreed that the plaintiff gave inconsistent testimony. However, the inconsistent testimony was known to defense counsel before trial, and tested through cross-examination and re-direct at trial.
Importantly, both sides presented their respective theories of the evidence to the jury, and the jury was therefore fully appraised of the alleged inconsistencies to the point where it could make its own determination about whether the plaintiff lied or provided a reasonable explanation. By its verdict, the jury implicitly rejected the theory that the plaintiff’s inconsistencies were “lies.”
Even in a case where a witness knowingly gives and uses false testimony, the proper remedy is to bring a motion, including a motion for mistrial or a motion for continuance.
Here the defendant did not seek either a pre-trial or an in-trial remedy. As the trial judge observed during the hearing on the post-trial motion to dismiss, the defendant consciously chose not to bring a motion to dismiss for fraud, choosing instead to present the issues to the jury and hoping for a defense verdict.
The court refused to reward this tactical decision. Essential to its analysis was that the defendant did not present any new evidence following the verdict, and the trial court did not conduct an evidentiary hearing on the motion, which had previously been submitted to the jury. The appellate court emphasized that inconsistencies or contradictions in testimony which perpetuate an unconscionable scheme to interfere with the jury’s ability and partially adjudicate the matter can be significant enough to warrant a finding of fraud, but such a finding must be supported by clear and convincing evidence which this record did not contain.
The court reversed, ruling that the trial judge abused his discretion in overturning the verdict and dismissing the case.