JOSEPH BENJAMIN BLACK and ELIZABETH BLACK v. MERY COHEN , 246 So. 3d 379 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOSEPH BENJAMIN BLACK and ELIZABETH BLACK,
Appellants,
v.
MERY COHEN,
Appellee.
No. 4D16-2485
[April 25, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. CACE08-
27555 (14).
Warren B. Kwavnick and Kelly Lenahan of Cooney Trybus Kwavnick
Peets, PLC, Fort Lauderdale, for appellants.
Ramon Rubio of the Law Office of Ramon Rubio, P.L., Fort Lauderdale,
for appellee.
WARNER, J.
In this appeal from an order granting a new trial in a rear end collision
case, resulting in a small verdict for the plaintiff, the court determined that
comments in voir dire regarding insurance, as well as testimony regarding
the defendant’s research in medical school, improperly swayed the jury.
We conclude that an objection to the comment on insurance was not
properly preserved and cannot serve as grounds for a new trial. The
comment on the defendant’s medical research amounted to admissible
“humanizing” evidence. Even if it did not, given the lack of explanation of
how such evidence created a “grossly inadequate” verdict, we conclude
that the court abused its discretion in granting a new trial. We reverse for
entry of a judgment consistent with the jury’s verdict.
The appellee/plaintiff, Mery Cohen, filed suit against
appellants/defendants, Joseph Black (driver) and Elizabeth Black (owner),
alleging Black was negligent in causing an automobile collision in August
2007. The parties gave different versions of the accident. Cohen testified
that she was stopped at a red light in a turn lane on University Drive in
Broward County when she was struck from behind by Black. Black, on
the other hand, testified that he was also stopped for the light behind
Cohen’s vehicle when the light turned green and the vehicles started to
move. Cohen slammed on her brakes, and Black hit the rear end of her
vehicle. The collision was minor, causing only around $1,600 damage to
Cohen’s bumper. Some statements on Cohen’s application for no-fault
insurance benefits contradicted her testimony. The description of the
accident on the form stated that the light had turned green, although at
trial she denied making that statement.
Cohen, age fifty-three at the time of the accident, testified her neck went
forward and back during the collision. She did not seek treatment that
day, but she went to Broward Rehab Center for pain in her shoulders, neck
(left and right), and lower back. She was seen by a neurologist who
diagnosed her with cervical spine strain/sprain, ordered physical therapy,
and prescribed medication. X-rays showed narrowing of the disc space at
multiple levels of the cervical spine. X-rays of the lower back also showed
widespread narrowing of the disc space throughout the lumbar spine. An
MRI taken three months later showed bulging lumbar discs, causing some
nerve impingement.
Cohen then was seen by an orthopedic surgeon who diagnosed her as
having herniated discs in the lower back. He recommended a lumbar
discogram. She also had an MRI of her cervical region, which revealed
numerous herniated discs. Her surgeon then recommended a cervical
discogram. Her pain from these impingements occurred on the left side of
her neck.
Cohen underwent the discogram in January 2008, which eliminated
her low back pain. In June 2008, her surgeon performed a discogram on
her cervical spine. Post-operatively, she did well, and the procedure
eliminated the pain on the left side of her neck. However, in October 2008,
fourteen months after the accident, she returned to her orthopedist with
complaints of right-sided neck pain. He treated her with an injection in
the neck and pain medication. By November, he released her and advised
that she should return only on an as needed basis. She did not return for
further visits.
For nine months, Cohen saw no doctors. Then, in July 2009, she saw
a series of orthopedists for right-sided neck pain. New MRIs of the neck
were performed, and the orthopedist recommended a cervical fusion.
A year later, she saw Dr. Dare, an orthopedic surgeon, as she was still
complaining of right-sided neck pain. After more tests, he performed a
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cervical discectomy and fusion in October 2011, almost four years after
the accident. Dr. Dare opined that the accident in August 2007 caused
the disc herniation that ultimately led to the surgery that he performed.
Cohen’s medical bills totaled $240,000, particularly because Dr. Dare
charged $176,000 for the fusion.
The defense offered the testimony of Dr. Rolando Garcia, an orthopedic
spine surgeon, who examined Cohen and her medical records. He
reviewed the x-rays of Cohen taken the day after the accident and did not
find anything that he attributed to the accident. He stated that the
thoracic and lumbar x-rays were normal. The cervical x-rays showed only
arthritic or degenerative changes, including the levels where Dr. Dare
eventually operated. Dr. Garcia testified that the left-sided neck pain
resolved after the accident, and fourteen months after the accident, right-
sided neck pain commenced. He did not conclude that the right-sided
pain, which manifested itself fourteen months after the accident, was
related to the accident. He opined that she did not suffer a permanent
injury as a result of the accident, and the cervical fusion performed by Dr.
Dare in 2011 was not necessitated by, nor attributed to, the accident.
In closing argument, Cohen’s attorney argued that she had sustained
an aggravation of a pre-existing condition and asked the jury to award
$240,000 in past medical expenses and $40,000 for future office visits (no
request for future surgery). Counsel requested a “floor” of $700,000 for
past pain and suffering during the nine years since the accident and a
minimum of $200,000 for future pain and suffering. Black contended that
Cohen did not suffer a permanent injury in the accident. Her complaints
of low back and left-sided neck pain were resolved within a year, and the
right-sided pain was not related to her injuries in the accident. He
suggested that the jury award $18,506 as compensation for the medical
expenses incurred up until the time she was released by her physician in
November 2008.
The jury concluded that Black was 50% at fault and Cohen was 50% at
fault. It also concluded that Cohen’s injuries were not permanent. It
awarded $18,506 in past medical bills, and it did not award any non-
economic damages.
Post-trial, Cohen moved for a new trial, alleging two primary grounds
for a new trial. First, during voir dire, Cohen’s counsel questioned the
prospective jurors on whether any of them had “ever dealt with
investigations of claims, auto accidents, worked for insurance companies,
[or] done any kind of investigation stuff?” Black’s counsel objected that,
“This is not an insurance case.” Cohen’s counsel then said, “I agree, Your
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Honor. I just want to know if they’ve worked for any kind of companies
that do – whether it be a private investigator, insurance company, or
whatever.” The court did not rule on the motion for mistrial. In her motion
for rehearing, Cohen argued that these comments biased the jury and
made it appear that Black did not have insurance.
The second issue addressed in the motion for new trial occurred during
the testimony of Black. During jury selection, the jurors were told that
Black was absent, because he was a student at the University of Florida
and making a presentation. He would arrive later. Subsequently, on the
third day of trial, Black testified. He initially stated that he was a medical
student and at the same time was doing research to receive a PhD at the
University of Florida. He had completed the first two years of medical
school; had taken his boards; and had an additional two years of graduate
school doing research. Counsel then asked him what he was researching,
to which Cohen objected based on relevance. The court overruled the
objection, and Black testified that he was researching chemotherapy
resistant prostate cancer and the mechanism of how it remains resistant
to therapies. He was giving a presentation on his research when he was
absent from trial. In the motion for new trial, Cohen maintained that the
sole purpose of revealing his research was to sway the jurors to “feel” for
Black and prejudice them in his favor.
The court held a hearing on the motion. Black contended that Cohen
had waived her motion for mistrial as to the insurance comment, because
the court offered, and the appellant accepted, a curative instruction which
was read to the jury. Further, Black contended that counsel’s statement
was in response to Cohen’s counsel interjecting insurance into the voir
dire by asking questions regarding experience with insurance
investigations. Black argued that, as to Black’s research, these comments
only served to humanize Black, which the trial court had allowed. The
trial court suggested interviewing the jurors to determine whether either
of these issues had influenced the verdict. The judge noted that the jury
had not awarded all of Cohen’s medical expenses. Black’s counsel pointed
out that the jury had awarded all the expenses for the first ten months
after the accident, which was consistent with their expert’s testimony as
to the injuries which were caused by the accident. The court seemed
intent on a jury interview and asked for memoranda as to its propriety.
Black provided a substantial body of case law showing that a juror
interview would be inappropriate, and Cohen agreed with that conclusion.
Without holding another hearing, the court entered an order granting
a new trial. The court ruled:
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1. The grossly insufficient award occurred because the jury
was misled, confused, influenced by passion or prejudice by
the testimony elicited by the Defendant. The defense was
entitled to get some of the background for the defendant: he’s
a student in Gainesville at U of F, he’s been there for seven
years and probably that he’s in medical school. Then the
defense asked the classic one question too many to elicit non
probative and prejudicial evidence: “What are you currently in
the process of researching?” Before the answer, the Court
overruled the Plaintiff’s objection. The answer was “I’m
looking at a type of prostate cancer that is resistant to current
chemotherapy that’s turned castration-resistant prostate
cancer. And we are trying to understand different ulterior
mechanisms that are responsible for how this giving cancer
gains resistance to androgen deprivation therapy.” That
question and answer had no probative value in this case and
was introduced simply to prejudice the jury in favor of the
defendant who was trying find a new way to treat or cure
prostate cancer. Not knowing the answer to the question, it
was the Court’s fatal mistake to overrule Plaintiff’s objection
to the question.
2. The grossly insufficient award occurred because the jury
was misled and confused because the defense introduced the
issue of insurance coverage for the defendant into the trial.
The defense spin on the agreed to collateral source rule
instruction to the jury implied the defendant did not have
insurance and misled the jury into believing the defendant
was going to personally pay the judgment.
Black now appeals the order granting the new trial.
Standard of Review
Three cases establish the standard of review of orders granting motions
for new trial. In Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959), the court
directed:
When the judge, who must be presumed to have drawn on his
talents, his knowledge and his experience to keep the search
for the truth in a proper channel, concludes that the verdict
is against the manifest weight of the evidence, it is his duty to
grant a new trial, and he should always do that if the jury has
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been deceived as to the force and credibility of the evidence or
has been influenced by considerations outside the record[ .]
Inasmuch as such motions are granted in the exercise of a
sound, broad discretion the ruling should not be disturbed in
the absence of a clear showing that it has been abused.
(citations omitted).
In Brown v. Estate of Stuckey, 749 So. 2d 490, 497-98 (Fla. 1999), the
court again addressed the standard of review that appellate courts must
apply:
When reviewing the order granting a new trial, an appellate
court must recognize the broad discretionary authority of the
trial judge and apply the reasonableness test to determine
whether the trial judge committed an abuse of discretion. If
an appellate court determines that reasonable persons could
differ as to the propriety of the action taken by the trial court,
there can be no finding of an abuse of discretion. The fact
that there may be substantial, competent evidence in the
record to support the jury verdict does not necessarily
demonstrate that the trial judge abused his or her discretion.
....
Regarding inadequate or excessive verdicts, this ground is a
corollary of the ground asserting that the verdict is contrary
to the manifest weight of the evidence. A new trial may be
ordered on the grounds that the verdict is excessive or
inadequate when (1) the verdict shocks the judicial conscience
or (2) the jury has been unduly influenced by passion or
prejudice. . . . Regardless of whether a new trial was ordered
because the verdict was excessive or inadequate or was
contrary to the manifest weight of the evidence, the appellate
court must employ the reasonableness test to determine
whether the trial judge abused his or her discretion.
Finally, in Van v. Schmidt, 122 So. 3d 243 (Fla. 2013), a case factually
similar to this case, the court addressed a conflict between this court and
the First District as to the deference the appellate court must afford the
trial court in reviewing an order granting a new trial to the extent that the
trial court relies on erroneous legal conclusions. The court held that
deference is not required for legal conclusions, stating:
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We conclude that a trial court’s conclusions of law in an order
granting a new trial are not entitled to deference because the
trial court’s superior vantage point is not implicated. In other
words, a reviewing court can determine the legal issue just as
well as the trial court. However, the trial court’s findings of
fact and determinations of credibility are still entitled to the
same deference as in orders that are not premised, at least in
part, on an error of law, because of the trial court’s superior
vantage point of having been present during the entire trial.
Id. at 258. With these principles in mind, we now analyze the new trial
order in this case.
This Case
The trial court determined that the verdict was “grossly inadequate”
because of the testimony with respect to Black’s research and the reference
to insurance. Taking the second reason first, the court found that the
“defense” injection of insurance into the trial prejudiced the jury.
Counsel’s statement, “This is not an insurance case,” occurred in voir dire,
not during the trial itself. While Cohen moved for a mistrial, her counsel
did not seek a ruling. The court offered a curative instruction, and counsel
expressed satisfaction with it. Most importantly, Cohen never expressed
dissatisfaction with the jury chosen and accepted the jury without
reservation, thus failing to preserve this objection. The preservation of an
objection is strictly a question of law and thus reviewable by the appellate
court de novo. See Van, 122 So. 3d at 252. In a similar context, the Florida
Supreme Court has held that a trial court may not grant a new trial based
upon objections to attorney misconduct which were sustained, but for
which no motion for mistrial was requested. The court noted, “The
principles behind the contemporaneous objection rule apply equally to our
decision regarding mistrial motions today: failure to alert the trial judge
that an error may be incurable results in delay and wastes judicial
resources, especially if the error complained of occurs early on in the
proceedings.” Companioni v. City of Tampa, 51 So. 3d 452, 455-56 (Fla.
2010). The same principles apply in this case. The court erred as a matter
of law in premising the order granting new trial on this waived objection.
See also Robinson v. Bucci, 828 So. 2d 478, 482 (Fla. 2d DCA 2002); Publix
Super Markets, Inc. v. Griffin, 837 So. 2d 1139, 1141 (Fla. 2d DCA 2003);
Rodriguez v. Loxahatchee Groves Water Control Mgmt. Dist., 636 So. 2d
1348, 1350 (Fla. 4th DCA 1994) (finding a curative instruction sufficiently
remedied error in inflammatory remarks so that it was not a proper basis
for granting new trial).
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The trial court also grounded the order granting new trial on the
testimony by Black regarding his cancer research, which the trial court
found was not probative and was offered only to prejudice the jury. Cohen
did not allege, nor did the court find, that Black’s testimony that he was a
medical student two years away from graduating was inadmissible. In
fact, earlier in the trial, the court found that this evidence was admissible
as proper “humanizing” evidence. Black contends that his cancer research
was likewise appropriate to humanize the witness and provide the jury
with a basis to assess his credibility. See Miller v. State, 42 So. 3d 204,
224 (Fla. 2010) (“It is common practice on direct examination to inquire
about a witness's occupation to establish background.”). In the early parts
of the trial, the court had even agreed that both parties could offer
humanizing evidence. Black’s counsel never mentioned Black’s medical
studies or cancer research again. 1 In Miller, a death penalty case, the
defendant contended that the trial court erred in allowing the victim’s son
to testify that he was an attorney, as the information was irrelevant and
prejudicial. Id. The supreme court rejected this contention, noting that
the background does enhance credibility of a witness by humanizing him.
Id. at 224-25. Moreover, “a jury is not presumed to discount all the
evidence only to decide a case upon the fact that the victim’s son is an
attorney.” Id. at 225. Similarly, in this case, the trial court cannot
presume that the jury has disregarded all other evidence and decided this
case in accordance with the position of Black simply because he does
cancer research. As in Miller, the admission of the evidence was not error.
Even if we consider the ruling as being within the “broad discretion”
afforded to trial courts in ruling on motions for new trial, we would still
conclude that the court abused its discretion in ordering a new trial based
upon the comments about Black’s cancer research. We simply cannot
conclude that mention of Black’s cancer research was so prejudicial that
the jury was misled and misperceived the weight of the evidence because
of it and decided the case upon the fact that the defendant did cancer
research. No reasonable person would conclude that the verdict was
fatally tainted by this single remark.
We are not bound by any findings and credibility determinations,
because the trial court made none. The court did not explain or analyze
why the verdict was “grossly inadequate.” The trial court made no analysis
of the testimony of the witnesses. Implicit in its finding of gross
1 The only comment on Black’s qualifications came from Cohen’s attorney who
said in closing argument: “And Joseph Black was just up there. I mean, talk
about an excellent witness. He’s all coat and tie, a med student, very articulate.
And he seemed like an incredible witness.”
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inadequacy must be a finding that no evidence supported the jury’s finding
of no permanency; however, without an analysis of the evidence in the case
and how the trial court would have come to that conclusion, the trial
court’s decision cannot be sustained. On the record before us, the issue of
liability and permanency were hotly contested, and the court has shed no
light as to why the defense’s evidence supporting its case should be
rejected. Therefore, we conclude that the court abused its broad discretion
in ordering a new trial.
For the foregoing reasons, we reverse the order granting new trial and
remand for entry of final judgment based upon the jury’s verdict.
Reversed with instructions.
MAY and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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