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Florida Fourth DCA rules that defense in negligence case erred by eliciting testimony from defense expert disparaging opinion of plaintiff's expert, but denies reversal after finding that plaintiff counsel’s failure to move for mistrial permitted only 'fundamental error' review

On July 1, 2020, in State Farm v. Medina, No. 4D190954, the Florida Fourth DCA reversed a trial court order which had granted the plaintiff in a motor vehicle negligence case a new trial based on findings of misconduct at trial by the defense.  Among other findings, the trial court concluded that during direct examination by defense counsel, the defense medical expert improperly commented on the plaintiff’s medical expert’s credibility and willfully violated the court’s in limine order which prohibited him from doing so.  The statement at issue was the defense expert’s response when asked about a finding in in plaintiff’s medical expert’s report: “[y]eah, that’s clearly — so, when you do the.”  Apparently, both plaintiff’s counsel and the trial judge heard the defense expert say “that’s clearly wrong” even though the transcript did not reflect the word “wrong”. The Fourth DCA stated that experts may not comment on the credibility of other witnesses or express an opinion about the validity of an opposing expert’s opinion, citing Calloway v. State, 210 So. 3d 1160, 1182 (Fla. 2017) and Carlton v. Bielling, 146 So. 2d 915, 916 (Fla. 1st DCA 1962). Quoting from Network Publ’ns, Inc. v. Bjorkman, 756 So. 2d 1028, 1031 (Fla. 5th DCA 2000), the Court observed that “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.” The Fourth DCA concluded that the defense expert’s comment violated both the trial court’s in limine order and improperly expressed an opinion as to the validity of another expert’s opinion.  However,  because plaintiff’s counsel failed to move for a mistrial after the court sustained his objection, the Fourth DCA concluded that reversal required a finding of “fundamental error,” which the Court did not find in this case. As an explanation of the sorts of errors that would constitute fundamental error, the Court cited 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).
The trial court also found that that defense counsel improperly asked the plaintiff on cross-examination whether she retained an attorney before seeking medical treatment.  The Fourth DCA noted that generally, whether a plaintiff retains an attorney is improper and irrelevant, citing Watson v. Builders Square, Inc., 563 So. 2d 721, 722–23 (Fla. 4th DCA 1990), but concluded that plaintiff’s counsel had “invited the error” by not redacting this information from a medical questionnaire that was referenced during witness testimony.  The Fourth DCA cited 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))); and 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).
The trial court also found that defense counsel improperly commented on his own client’s wealth during closing argument by implicitly suggesting that plaintiff’s counsel was trying to convince the jury that they “we have got the big guy over there, State Farm . . . let’s give her money.”  The Fourth DCA acknowledged that Florida has a long-standing rule that no reference should be made to the wealth or poverty of a party, but stated that  the rule is generally intended “to protect the wealthier party and to prevent the jury from applying the deep pocket theory of liability.” The Court concluded that the prejudice that normally accompanies references to a party’s wealth was not present as State Farm “clearly did not seek to have the jury sympathize with the less wealthy plaintiff.”

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