Summary
holding that defense counsel’s opening statement about the plaintiff's doctors riot getting paid unless the plaintiff recovered damages at trial was "not so inflammatory and prejudicial" that it vitiated the fairness of a four-day trial
Summary of this case from State Farm Mut. Auto. Ins. Co. v. MatthewsOpinion
Nos. 3D18-2475 3D18-204
10-16-2019
Juliana ARAUJO, Appellant, v. WINN-DIXIE STORES, INC., Appellee.
Kanner & Pintaluga, P.A., and Blair M. Dickert (Boca Raton), for appellant. Cole Scott & Kissane, P.A., and Therese A. Savona (Orlando), for appellee.
Kanner & Pintaluga, P.A., and Blair M. Dickert (Boca Raton), for appellant.
Cole Scott & Kissane, P.A., and Therese A. Savona (Orlando), for appellee.
Before FERNANDEZ, SCALES, and HENDON, JJ.
HENDON, J. Juliana Araujo ("Araujo"), in this consolidated appeal, seeks to reverse a final judgment in her favor (3D18-204) and to remand for a new trial, and to reverse the trial court's denial of her motion for attorney's fees (3D18-2475). We affirm both.
Araujo slipped and fell at a Winn-Dixie grocery store and filed a one-count complaint against Winn-Dixie for premises liability. After the trial court denied Araujo's motion for mistrial, the jury found Araujo to be 50% negligent and Winn-Dixie to be 50% negligent, and awarded Araujo $231,435.13 in damages. Araujo moved for attorney's fees pursuant to Florida Rule of Civil Procedure 1.380(c) for Winn-Dixie's alleged failure to serve answers to interrogatories, which the trial court denied after a hearing.
In her appeal from the final judgment, Araujo raises five claims of error: 1) improper comments in Winn-Dixie's opening and closing statements; 2) improper admission of workers' compensation documents; 3) improper questions about the timing of Araujo's retention of counsel ; 4) improper cross-examination of Araujo's treating physician; and 5) cumulative errors warranting a new trial. After a thorough examination of the record on appeal, we find none of these claims to have legal merit.
Although this issue is listed in Araujo's initial brief as Issue VI, no argument on this issue was presented. Consequently, Winn-Dixie did not address it in its answer brief.
A trial court's denial of a motion for mistrial and a motion for new trial based on improper opening and closing statements is reviewed for an abuse of discretion. R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 759 (Fla. 4th DCA 2016). "Generally, a mistrial or new trial should be granted only when counsel's arguments are so inflammatory and prejudicial that they deny the opposing party a fair trial." Bakery Assocs., Ltd. v. Rigaud, 906 So. 2d 366, 367 (Fla. 3d DCA 2005) (quoting Maksad v. Kaskel, 832 So. 2d 788, 793 (Fla. 4th DCA 2002) ). When assessing the comments, "[c]ontext is crucial. To determine whether the challenged statements and arguments were in fact prejudicial, the statements cannot be evaluated in isolation but must be placed and evaluated in context." Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1272 (Fla. 2006) ; see also Las Olas Holding Co. v. Demella, 228 So. 3d 97, 107 (Fla. 4th DCA 2017), review denied, No. SC17-2100, 2018 WL 985951 (Fla. Feb. 20, 2018).
Araujo's motion for mistrial was based, in part, on Winn-Dixie's comment in its opening statement that if Araujo did not recover damages, her doctors would not get paid because they were treating her under letters of protection. Araujo objected to this at trial, and the objection was sustained. This comment, however, is not so inflammatory and prejudicial that it vitiates the fairness of the subsequent four days of trial. Further, Winn-Dixie's opening comments about Araujo's actions while on the premises went to Winn-Dixie's comparative negligence defense. Winn-Dixie's comments in its opening and closing statements were not pervasive, and were not so inflammatory or prejudicial as to compromise the fairness of trial, and Araujo did not ask for a curative instruction.
Next, Araujo argues that certain workers' compensation documents were erroneously admitted over objection, causing irremediable prejudice and thus grounds for a new trial. The record indicates that documents containing medical records were admitted after Winn-Dixie agreed to redact any references to workers' compensation, and to which redactions Araujo agreed. Araujo's argument on this point is conclusory and unsupported by any specifics, merely reciting certain evidentiary statutes without connecting them to any of the actual documents that were redacted and admitted into evidence. The record indicates no prejudice to Araujo as a result of the admission of the redacted documents, and thus we find no abuse of discretion in their admission to evidence.
Araujo called one of her treating physicians to testify. Dr. Roush, an orthopedic surgeon, saw Araujo one month after the slip-and-fall incident. On cross-examination, Winn-Dixie asked about Dr. Roush's relationship with Araujo's legal counsel, to inquire whether Dr. Roush got any income from cases that the litigation firm referred to him. At Araujo's objection, the trial court held a sidebar. The trial court indicated that the Florida Supreme Court had recently determined that counsel could inquire into Letters of Protection, whether the doctor has a financial stake in the litigation, as well as inquire into the number of plaintiffs cases the doctor has handled. Dr. Roush could not give any specific numbers, but agreed that he had testified a number of times for plaintiffs and for Araujo's litigation firm.
Araujo relies on Worley v. Central Florida Young Men's Christian Assoc., Inc., 228 So. 3d 18 (Fla. 2017), for the proposition that Winn-Dixie is precluded from inquiring of the plaintiff's non-party physician the extent of his or her financial connection to the plaintiff's law firm. Araujo misstates the holding of Worley. That slip-and-fall case involved the defendant YMCA asking the plaintiff in deposition if she was referred to the medical specialists by her counsel, in addition to propounding interrogatories to the medical providers and plaintiff's counsel in an effort to establish the existence of a referral relationship between the attorneys and the plaintiff's treating physicians. The Worley court held the attorney-client privilege precludes defense counsel from asking a plaintiff whether his or her attorney referred the plaintiff to a particular doctor for treatment.
The facts before us are different. The Florida Supreme Court in Worley recognized that the defense is permitted to establish bias on the part of a treating physician by evidence of a Letter of Protection, whether all or a significant part of the provider's practice is pursuant to Letters of Protection, or whether the amounts charged are higher than usual for those treatments. Here, Winn-Dixie did not ask the plaintiff to disclose any referral relationship. Instead, Winn-Dixie asked Araujo's treating physician, a non-party, to testify about the percentage of his practice and income derived from referrals from the plaintiff's law firm. This line of questioning in order to establish a non-party witness' bias is not precluded by Worley. The witness admitted that he did some work for the plaintiff's law firm, but that there was no referral relationship with the plaintiff's law firm, and he was unable to provide any details. Even if that inquiry was in error, Araujo fails to show any prejudice or violation of attorney-client privilege as a result of the inquiry, and we conclude no reversible error occurred.
During the charge conference, Araujo asked for instruction 301.11(b), a burden-shifting instruction, to be read to the jury. That instruction provides:
b. Burden shifting presumption.
The court has determined that (name of party) had a duty to [maintain (describe missing evidence) ] [keep a record of (describe subject matter as to which party had record keeping duty) ]. (Name of party) did not [maintain (describe
missing evidence) ] [or] [keep a record of (describe subject matter as to which party had recordkeeping duty) ].
Because (name of party) did not [maintain (describe missing evidence) ] [or] [[[keep a record of (describe subject matter as to which party had a record keeping duty) ], you should find that (name of invoking party) established [[[his] [her] (describe applicable claim or defense) unless (name of party) proves otherwise by the greater weight of the evidence.
Alternatively, Araujo requested the 301.11(a) instruction:
a. Adverse inference.
If you find that: (Name of party) [lost] [destroyed] [mutilated] [altered] [concealed] or otherwise caused the (describe evidence) to be unavailable, while it was within [his] [her] [its] possession, custody, or control; and the (describe evidence) would have been material in deciding the disputed issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to (name of party). You may consider this, together with the other evidence, in determining the issues of the case.
Araujo maintained that Winn-Dixie engaged in spoliation because it had not preserved the video footage for an hour prior and an hour after the incident. Winn-Dixie argued that neither instruction applied because the video had been preserved, admitted into evidence, and the jury had seen the video – that started twenty minutes prior to the incident and ended twenty minutes after the incident. Winn-Dixie asserted that this timespan showed everything that Araujo needed in order to establish her burden. The trial court correctly denied Araujo's request for either instruction.
The doctrine of spoliation arises when it is alleged that a crucial piece of evidence is unavailable at the time of trial because of the actions of one or the other of the parties. See, eg., Sponco Mfg. v. Alcover, 656 So. 2d 629 (Fla. 3d DCA 1995) ; Moghari v. Anthony Abraham Chevrolet Co., 699 So. 2d 278, 279 (Fla. 3d DCA1997). We find that in this case, there was no legal necessity for giving either jury instruction 301.11(a) or (b) because there was no showing in the record that Winn-Dixie had a duty, statutory or otherwise, to maintain the video for one-hour prior- and one-hour post-incident. Further, there is no showing in the record that Winn-Dixie intentionally destroyed or withheld any evidence, and no indication that Araujo would be significantly prejudiced by showing the 40-minute video footage to the jury. The trial court's denial of Araujo's request for the jury instructions dealing with destruction of evidence, based on Araujo's speculation that Winn-Dixie intentionally withheld portions of the video, was not an abuse of discretion. Araujo suffered no significant impairment in her ability to prove her underlying lawsuit.
In its closing argument, Winn-Dixie's strategy was to encourage the jury to think about comparative fault. Winn-Dixie also argued that Araujo was not currently receiving any medical treatment, and that she had been released for normal activity. Winn-Dixie mentioned that only one of Araujo's doctors indicated that she could not perform any work. Winn-Dixie insinuated during closing that this doctor was, essentially, milking the litigation system for inflated fees. Araujo did not object.
A contemporaneous objection to improper comments is necessary to preserve error, unless the error is fundamental. Brumage v. Plummer, 502 So. 2d 966, 968 (Fla. 3d DCA 1987). Fundamental error occurs if the error extinguishes "a party's right to a fair trial," Moore v. Taylor Concrete & Supply Co., 553 So. 2d 787, 792 (Fla. 1st DCA 1989), or if the argument "was so prejudicial as to be incapable of cure by rebuke or retraction." Borden, Inc. v. Young, 479 So. 2d 850, 851 (Fla. 3d DCA 1985) ; Martino v. Metro. Dade Cty., 655 So. 2d 151, 152 (Fla. 3d DCA 1995) ; see also Allstate Ins. Co. v. Wood, 535 So. 2d 699, 699 (Fla. 1st DCA 1988) (stating that the trial court "has a superior vantage point to determine the effect" of any error on the jury and its ruling as to a new trial will not be disturbed "unless it appears clear and patent on the record that prejudicial error occurred").
Araujo did not contemporaneously object to any of Winn-Dixie's closing argument statements she now complains of on appeal. Thus, Araujo attempts to characterize the statements as prejudicial, fundamental, and the sum of all errors allegedly committed throughout the trial. Araujo does not provide any detail of those errors that she now argues amount to cumulative errors, or where in the record they are located. We are left to assume the alleged errors are the defense statements in opening and closing arguments, as well as those objections, mentioned in Araujo's brief, that arose during the course of the trial. The record does not show that Araujo's counsel at any point asked for curative instructions regarding those specific comments, or that comments actually objected to – in combination with those that were unobjected to throughout trial and closing – were so improper, harmful, and incurable that the comments damaged the fairness of the proceedings such that the public's interest in our system of justice requires a new trial. See Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010, 1027 (Fla. 2000). We find no abuse of discretion in the trial court's evidentiary and procedural rulings, and affirm the Final Judgment.
As a final matter, Araujo's appeal from the denial of attorney's fees is similarly without merit. Araujo moved for attorney's fees pursuant to Fla. R. Civ. P. 1.380(c). Rule 1.380 provides:
(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorney fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to rule 1.370(a), (2) the admission sought was of no substantial importance, or (3) there was other good reason for the failure to admit.
Araujo argued at the fee hearing that Winn-Dixie denied Request for Admission questions 6, 7, 8, and 10, as follows: Request 6: "There was a foreign substance on the floor which cause the Plaintiff to slip/trip and fall."; Request 7: "The Plaintiff sustained an injury in this incident."; Request 8: "The Plaintiff sustained a permanent injury in this incident."; Request 10: "One or more of your employees should have been aware of the hazardous condition which is the subject of this lawsuit." Winn-Dixie denied these requests in its answers to interrogatories.
The trial court heard argument on each of these requests and found them to be hotly contested issues of fact that were appropriately left to the jury to decide. The trial court denied Araujo's rule 1.380(c) attorney's fees "for the reasons set out on the record in open court ...." See Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So. 2d 1107, 1113 (Fla. 3d DCA 2000) (holding expenses incurred by a successful litigant as a result of the opposing party's failure to admit requests for admissions may not be assessed against the opposing party for denying a request to admit a hotly-contested, central issue to the case). After a thorough examination of the record, we find no abuse of discretion and affirm the order denying Araujo's attorney's fees sought pursuant to Fla. R. Civ. P. 1.380(c).
Interestingly, Araujo in her initial brief admits that "causation and damages were hotly contested issues and vigorously disputed," contradicting her arguments at the fee hearing.
Affirmed.