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Florida Fifth DCA affirms trial c ourt’s denial of plaintiff’s motion for new trial in motor vehicle negligence case involving defense counsel’s submission of improper material under cover of a bulk exhibit

On June 18, 2021, in Bowers v. Tillman, et al., No. 5D19-1757, the Florida Fifth DC affirmed a trial court’s ruling denying a plaintiff’s motion for a new trial. The plaintiff’s new trial motion was based on multiple alleged errors, including (1) references made a defense expert witness to medical records that were not admitted in evidence which violated a pre-trial order precluding the defense from making any such references; and (2) the insertion into a 140-page composite exhibit by defense counsel of an otherwise irrelevant post-accident medical record that included the statement “lawyer referred to chiropractor.” Regarding the latter issue, the trial court instructed the jury to disregard the document and any comments about it. The Fifth DCA noted that the trial court properly looked to Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959), for guidance as to the proper standard for his review of the plaintiff’s new trial motion, which indicates that a new trial should be granted if the trial judge concludes that the verdict is against the manifest weight of the evidence, and should always be granted if the trial judge concludes that the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record. The Fifth DCA approvingly cited Andreaus v. Impact Pest Management, Inc., 157 So. 3d 442 (Fla. 2d DCA 2015), a similar case involving the submission of improper material under cover of a bulk exhibit in which the Second DCA found reversible error in the “gotcha” tactic employed by the defense. The Fifth DCA also noted that this was in fact the second trial between the parties, the first trial having been mistried after what the trial court determined to be problematic conduct by counsel for both the plaintiff and the defendant. However, the Fifth DCA ultimately deferred to the trial court, stating that “we recognize that the trial judge is in the best position to determine the potential impact of improper conduct and/or improper testimony,” and concluding that the decision not to grant a new trial was not an abuse of discretion. On the same day, the Court decided a companion case, Cemoni V. Ratner, No. 5D19-3629, involving a motion for sanctions the plaintiff in Bowers v. Tillman filed against the defense attorney related to his alleged misconduct at the first trial, involving repeated references to a legal claim the plaintiff had allegedly made for injuries from an earlier accident without any actual admissible evidence to support the references. The Fifth DCA affirmed the trial court’s ruling denying the motion for sanctions, concluding that the trial judge was within her discretion in deciding that this case was not one of the extreme cases that warranted the imposition of sanctions. The Court cited Nedd v. Gary, 35 So. 3d 1028, 1029 (Fla. 4th DCA 2010) (explaining that sanctions pursuant to the court’s inherent authority is “rarely applicable” because it is reserved for those “extreme cases” where the court finds “egregious conduct” or “bad faith”).