DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellant,
v.
ALICIA MEDINA,
Appellee.
No. 4D19-954
[July 1, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No.
16-012302 CACE.
Paulo R. Lima and Elizabeth K. Russo of Russo Appellate Firm, P.A.,
Miami, and Rand Ackerman of Green, Ackerman & Matzner, P.A.,
Boca Raton, for appellant.
Andrew H. Harris and Nichole J. Segal of Burlington & Rockenbach,
P.A., West Palm Beach, and Yeemee Chan of Steinger, Greene & Feiner,
Fort Lauderdale, for appellee.
DAMOORGIAN, J.
Alicia Medina (“Plaintiff”) sued State Farm Mutual Automobile
Insurance Company (“State Farm”) for underinsured motorist benefits
because of personal injuries she sustained in an automobile accident.
A jury rendered a defense verdict, finding that the accident was not the
legal cause of Plaintiff’s injuries.
The trial court set aside the jury’s verdict and ordered a new trial based
on multiple alleged instances of misconduct by defense counsel and a
defense expert witness. State Farm appeals the trial court’s order granting
Plaintiff a new trial. Finding that most of the instances of misconduct
referenced in the new trial order were either not improper, unpreserved,
or not so prejudicial to warrant a new trial, we reverse the order and
remand for entry of final judgment consistent with the jury’s verdict.
Background
While stopped at a red light, Plaintiff’s vehicle was struck in the rear in
a chain-reaction accident. Plaintiff claimed she sustained permanent
injuries to her lower back because of the accident. Although Plaintiff
described the impact as “very strong,” the evidence at trial established that
it was a low-impact accident with little physical damage to Plaintiff’s
vehicle. Plaintiff’s doctors and experts testified that the injury was caused
by the accident. State Farm’s expert testified that the injury was due to
age-related degenerative changes as Plaintiff was 54 years old at the time
of the accident.
At the conclusion of the trial, the jury rendered a defense verdict,
finding that the accident was not the legal cause of Plaintiff’s injuries.
Plaintiff sought a new trial based on several purported errors by defense
counsel and a defense expert witness. She did not claim that the verdict
was against the weight of the evidence. The trial court granted Plaintiff a
new trial on the basis of cumulative error and the following four instances
of alleged misconduct: (1) comment by the defense expert impugning
Plaintiff’s counsel; (2) 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 whether she retained an attorney before
seeking medical treatment; and (4) unpreserved comment by defense
counsel in closing argument regarding State Farm’s wealth.
Analysis
We review a circuit court’s order granting a motion for a
new trial for abuse of discretion. Moreover, it takes a stronger
showing of error in order to reverse an order granting a new
trial than an order denying a new trial. Thus we begin with
the presumption that the trial court properly exercised its
discretion, and we will not disturb the trial court’s ruling
absent a clear abuse of that discretion. However, such orders
must nevertheless be supported by the record or by findings
of influence outside the record.
Moore v. Gillett,
96 So. 3d 933, 938 (Fla. 2d DCA 2012) (internal citations
and quotation marks omitted). To the extent the trial court in the instant
case granted a new trial based, in part, on an unpreserved comment in
closing argument, “a new trial should be granted if the four-part test of
Murphy v. International Robotic Systems, Inc.,
766 So. 2d 1010 (Fla. 2000),
is satisfied, which is that the comments must be improper, harmful,
incurable, and damage the fairness of the trial such that the public
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interest requires a new trial.” Allstate Ins. Co. v. Marotta,
125 So. 3d 956,
960 (Fla. 4th DCA 2013).
a) Comment impugning Plaintiff’s attorney
As the first ground, the trial court ruled that State Farm’s compulsory
medical examination doctor (“the defense expert”) intentionally made an
improper and prejudicial remark about Plaintiff’s counsel during
cross-examination when he said “I don’t know if that’s a question, but I’m
not plaintiff’s attorney. I don’t give my opinions based on money.” A review
of this basis requires some background.
During cross-examination of the defense expert, Plaintiff’s counsel
wanted to make the point that the defense expert had a significant
financial interest in testifying favorably for the defense. Over the course
of nearly 12 pages of transcript, Plaintiff’s counsel relentlessly and
aggressively questioned the defense expert about how much he charged
for this case, how many cases he had testified in, and how much money
he had made over the years. This line of questioning continued even after
the defense expert admitted, numerous times, to earning millions of
dollars testifying as an expert. The heated exchange culminated with
Plaintiff’s counsel asking the following question regarding the defense
expert’s medical opinion in this case: “Well, I’m sure there’s literally
millions of reasons why you have that opinion, maybe subconsciously,
right?,” to which the defense expert replied “I don’t know if that’s a
question, but I’m not plaintiff’s attorney. I don’t give my opinions based
on money.” Plaintiff’s counsel objected to the comment and moved for a
mistrial, which the trial court denied. Notably, in denying the motion, the
trial court offered to give a curative instruction and Plaintiff declined.
Notwithstanding the trial court’s denial of the motion for mistrial, in its
order granting a new trial the court found the comment was
“clearly intended to prejudice the jury, and was so pervasive that it
undermined the integrity of the entire trial.”
On appeal, State Farm properly concedes the comment was
“not appropriate.” See Clark v. State,
881 So. 2d 724, 726–27 (Fla. 1st
DCA 2004) (comments which attack an attorney’s integrity are highly
improper, including when those improper comments come from a witness
rather than opposing counsel). However, it argues that the comment was
not so prejudicial so as to deny Plaintiff a fair trial. We agree.
When properly preserved, a new trial should be granted where the
comment was “so highly prejudicial and inflammatory that it denied the
opposing party its right to a fair trial.” Engle v. Liggett Grp., Inc.,
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945 So. 2d 1246, 1271 (Fla. 2006) (quoting Tanner v. Beck,
907 So. 2d
1190, 1196 (Fla. 3d DCA 2005)). We find that the comment does not meet
that standard. Here, the comment was said only once, was not repeated
again during the remainder of the trial, and it cannot be said that Plaintiff
was denied a fair trial based on this isolated comment. See Clark,
881 So.
2d at 727, 727 n.2 (recognizing that “[n]ot every inadvertent comment of a
witness will result in reversal,” especially when an appropriate curative
instruction is given, the comment is not the focus of the trial, or when the
evidence of guilt is overwhelming).
Moreover, although the trial court found the comment to be intentional,
it is apparent from the record that the surprise comment was inadvertent
and the result of extensive witness badgering on the part of Plaintiff’s
counsel. See generally Baisden v. State,
203 So. 2d 194, 198 (Fla. 4th
DCA 1967) (recognizing that it is improper to badger a witness). As further
evidence of the hostility and relentlessness with which Plaintiff’s counsel
questioned the defense expert, Plaintiff’s counsel asked the defense expert
the same question two more times after the comment was elicited. In
response, State Farm objected to the questions as argumentative and the
court sustained the objections. Accordingly, while the comment may well
have been blurted out in anger, the comment was elicited by Plaintiff’s
attorney. See James v. State,
741 So. 2d 546, 549 (Fla. 4th DCA 1999).
b) Comment impugning Plaintiff’s medical expert
As the second ground, the trial court found that the defense expert
improperly commented on Plaintiff’s medical expert’s credibility and
willfully violated the court’s in limine order. Briefly, prior to trial, the trial
court entered an order prohibiting the defense expert from commenting on
other experts. In addition, prior to the start of trial, the trial court orally
reiterated its order and said “[k]eep your experts from saying this was read
wrong, or I disagree with this. Just have them state their opinion without
commenting on the other experts.” During direct examination, the defense
expert responded as follows when asked about the myelopathy finding in
Plaintiff’s expert’s report: “[y]eah, that’s clearly — so, when you do the.”
Plaintiff’s counsel objected on the basis that the comment violated the
pre-trial order. Apparently, both Plaintiff’s counsel and the trial judge
heard the defense expert say “that’s clearly wrong” even though the
transcript does not reflect the word “wrong.” Although the trial court
sustained the objection, Plaintiff did not move for a mistrial.
“[E]xperts may not comment on the credibility of other witnesses,”
Calloway v. State,
210 So. 3d 1160, 1182 (Fla. 2017), or express an
opinion as to the validity of an opposing expert’s opinion, Carlton v.
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Bielling,
146 So. 2d 915, 916 (Fla. 1st DCA 1962). However, “an expert
may properly explain his or her opinion on an issue in controversy by
outlining the claimed deficiencies in the opposing expert’s methodology so
long as the expert does not attack the opposing expert’s ability, credibility,
reputation, or competence.” Network Publ’ns, Inc. v. Bjorkman,
756 So. 2d
1028, 1031 (Fla. 5th DCA 2000). “This rule recognizes that a trial should
not be reduced to a debate regarding the ability, credibility, or reputation
of an expert based on the perception of another expert.”
Id.
Here, the defense expert’s comment that a finding in Plaintiff’s expert’s
report was “clearly wrong” undoubtedly violated the court’s in limine order.
Moreover, the comment indirectly and improperly expressed an opinion as
to the validity of another expert’s opinion. See
Carlton, 146 So. 2d at 916.
However, because Plaintiff failed to move for a mistrial after the trial court
sustained her objection, the issue is not preserved and can only be
reviewed for fundamental error. See Sanchez v. State,
81 So. 3d 604, 610
(Fla. 3d DCA 2012) (improper witness comment not preserved because
defendant failed to move for mistrial after the trial court sustained his
objection and, thus, the error could only be reviewed for fundamental
error). We do not find such an indirect comment rises to the level of
fundamental error. Cf. Caban v. State,
9 So. 3d 50, 53 (Fla. 5th DCA 2009)
(reversible error where state’s expert testified that defense expert’s
“conclusions were not generally accepted by the medical community,”
that his data was “soft,” and that his “conclusions ‘are not accepted as
even following from his own data’”); Scarlett v. Ouellette,
948 So. 2d 859,
864 (Fla. 3d DCA 2007) (proper for trial judge to limit expert’s testimony
when asked to directly comment on the credibility of an opposing expert);
Carver v. Orange Cty.,
444 So. 2d 452, 454 (Fla. 5th DCA 1983) (reversible
error for trial court to allow expert witness to impeach the opposing expert
by allowing expert witness to give his opinion as to the opposing expert’s
overall ability).
c) Question regarding whether Plaintiff retained an attorney before
seeking medical treatment
As the third ground, the trial court found that defense counsel
improperly asked Plaintiff on cross-examination whether she retained an
attorney before seeking medical treatment. The question was based on
information in a chiropractic questionnaire Plaintiff filled out upon her
initial visit with a chiropractor. In that questionnaire, an unredacted
version of which Plaintiff’s counsel relied on during direct examination,
Plaintiff checked the “yes” box to the question “Have you retained an
attorney?” Plaintiff’s counsel objected before Plaintiff could answer.
At sidebar, defense counsel explained that he was simply referencing a
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document that Plaintiff had already placed into evidence. 1 Plaintiff’s
counsel admitted to erroneously introducing the unredacted questionnaire
into evidence during direct examination. After noting that “[y]ou can’t
redact anything after it’s in evidence,” the trial court overruled the
objection. Defense counsel was then permitted to re-ask the question, and
Plaintiff responded that she did retain counsel before seeking medical
treatment.
Generally, whether a plaintiff retains an attorney is improper and
irrelevant. Watson v. Builders Square, Inc.,
563 So. 2d 721, 722–23
(Fla. 4th DCA 1990). However, here, Plaintiff invited the error by
introducing the questionnaire without redacting the question at issue.
See Cordoba v. Rodriguez,
939 So. 2d 319, 323 (Fla. 4th DCA 2006)
(“[U]nder the invited-error doctrine, a party may not make or invite error
at trial and then take advantage of the error on appeal.” (alteration in
original) (quoting Goodwin v. State,
751 So. 2d 537, 544 n.8 (Fla. 1999)));
see also Hill v. Sadler,
186 So. 2d 52, 54 (Fla. 2d DCA 1966) (stating that
comments regarding what a document contains are improper before the
document is admitted into evidence).
d) Comment referencing State Farm’s wealth
As the fourth ground, the trial court found that State Farm improperly
interjected its wealth into the case by making the following comments in
closing argument:
Instead, let’s hope that we can get a jury. Let’s hope that we
can get a jury of six people to say, hey, we have got the big guy
over there, State Farm. We have got the big name and big
lights, every TV commercial. We have got State Farm. And
maybe, if we get six people to remember that it’s State Farm
on the other side, maybe they’ll say, you know, something,
let’s give her money. Let’s ignore everything the Defendant
said because we have got State Farm over there.
The above comments, which Plaintiff did not object to, were made after
State Farm’s counsel detailed how the evidence in the case failed to
support Plaintiff’s claim that the accident caused her injuries.
1 Although the questionnaire was marked as an exhibit and referenced during
direct examination of Plaintiff, it does not appear that the questionnaire was
formally moved into evidence. The parties, however, treated the questionnaire as
if it had been moved into evidence and, consequently, an unredacted version of
the questionnaire was submitted to the jury during deliberations.
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“Florida has a long-standing rule that ‘no reference should be made to
the wealth or poverty of a party, nor should the financial status of one
party be contrasted with the other’s.’” Hurtado v. Desouza,
166 So. 3d
831, 835 (Fla. 4th DCA 2015) (quoting Batlemento v. Dove Fountain, Inc.,
593 So. 2d 234, 241 (Fla. 5th DCA 1991)). However, this rule generally
applies “because jurors have a tendency to favor the poor as against the
rich, especially when provoked by inflammatory evidence.”
Id. In other
words, the rule is generally intended to protect the wealthier party and to
prevent the jury from “apply[ing] the deep pocket theory of liability.” Sossa
ex rel. Sossa v. Newman,
647 So. 2d 1018, 1019–20 (Fla. 4th DCA 1994)
(citing Seaboard Air Line Ry. v. Smith,
43 So. 235, 239 (Fla. 1907));
see also State Farm Mut. Auto. Ins. Co. v. Revuelta,
901 So. 2d 377, 380
(Fla. 3d DCA 2005) (reiterating that the danger of introducing evidence of
a party’s wealth or poverty is that the jury will “sympathize with the
financially stricken party”).
Here, aside from the fact that State Farm did not directly reference its
wealth in closing, the prejudice that normally accompanies references to a
party’s wealth is not present as State Farm clearly did not seek to have the
jury sympathize with the less wealthy Plaintiff. Cf.
Revuelta, 901 So. 2d
at 380. Rather, State Farm generally referenced its status as “the big guy”
in an attempt to demonstrate that Plaintiff failed to meet her burden.
“Taken in context, the comments were not an invitation to decide the case
on the improper basis of the financial status of the parties.” Target Stores
v. Detje,
833 So. 2d 844, 845 (Fla. 4th DCA 2002) (holding that references
to the defendant as a “big corporation” did not invite the jury to decide the
case based on the financial status of the parties). If anything,
the comments urged the jury to disregard State Farm’s wealth and
“big corporation” status.
e) Cumulative error
Lastly, the trial court found that the cumulative prejudicial effect of the
above described errors warranted a new trial.
“Where multiple errors are found, even if deemed harmless individually,
‘the cumulative effect of such errors’ may ‘deny to defendant the fair and
impartial trial that is the inalienable right of all litigants.’” Hurst v. State,
18 So. 3d 975, 1015 (Fla. 2009) (quoting Brooks v. State,
918 So. 2d 181,
202 (Fla. 2005)). Although preserved and unpreserved error may be
considered in a cumulative error analysis, “where the alleged errors urged
for consideration in a cumulative error analysis are individually ‘either
procedurally barred or without merit, the claim of cumulative error also
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necessarily fails.’”
Id. (quoting Israel v. State,
985 So. 2d 510, 520
(Fla. 2008)); see also
Marotta, 125 So. 3d at 961. Here, having concluded
that the comments were either proper, invited by Plaintiff’s counsel, or not
so prejudicial so as to warrant a new trial, it cannot be said that the
cumulative effect of the comments denied Plaintiff a fair and impartial trial.
Accordingly, we reverse the trial court’s order granting a new trial.
On remand, the trial court shall reinstate the jury’s verdict and enter a
final judgment consistent with the verdict.
Reversed and remanded.
LEVINE, C.J., and KUNTZ, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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