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Florida Fifth DCA finds that defense counsel’s improper closing argument did not violate fundamental fairness standard of review for retrial

On January 31, 2020, in Orange County et al. v. Ferguson, No. 5D18-2405, the Florida Fifth DCA reversed a trial court order which had directed a verdict in favor of the plaintiff in a premises liability lawsuit against Orange County, Florida. The plaintiff alleged he was sexually abused by a jail inmate while participating in a tour of the county jail as part of a juvenile diversion program. The trial court directed the verdict for the plaintiff after jury returned a verdict in favor of the defendant. The Fifth DCA agreed that the evidence established negligence but found that the jury reasonably could have concluded that the plaintiff had failed to establish that the incident caused him to suffer the injuries he claimed, consisting of PTSD symptoms.

The trial court had also granted the plaintiff’s post-trial motion for a mistrial on the ground that defense counsel willfully violated motions in limine and, as a result, “the jury was deceived and was likely influenced by considerations outside the record.” This finding was based on two incidents in defense counsel’s closing argument. First, defense counsel displayed an unredacted copy of a psychological treatment note of the plaintiff, which impermissibly stated that the plaintiff’s participation in the jail tour was pursuant to a restorative justice program as the result of a “stealing” offense. Second, defense counsel suggested that the United States Army (the plaintiff’s current employer) would “take care of its own,” if the plaintiff needed therapy in the future.

However, the Fifth DCA noted that that the plaintiff’s counsel never moved for a mistrial prior to jury deliberations. As a result, the heightened “fundamental error” standard of review applied as set forth in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1031 (Fla. 2000), in which the Florida Supreme Court held “that before a complaining party may receive a new trial based on unobjected-to closing argument, the party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” The Fifth DCA concluded that plaintiff had failed to meet this burden.