27 Fla. L. Weekly Supp. 283a
Online Reference: FLWSUPP 2703MEDIInsurance — New trial is required where physician who performed compulsory medical examination intentionally made highly prejudicial remarks impugning integrity of plaintiff’s counsel and violated order prohibiting him from criticizing plaintiff’s treating physicians when he testified that treating physician erred in reading scan — Defense counsel’s questioning of plaintiff about whether she retained a lawyer before she sought medical treatment and closing argument commenting on insurer’s wealth and ability to pay money also warrant new trial
ALICIA MEDINA, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 15-012302 CACE (14). March 20, 2019. Carlos Augusto Rodriguez, Judge. Counsel: Yeemee Chan, Steinger, Iscoe & Greene, PA., Fort Lauderdale, for Plaintiff. Rand Ackerman, Green & Ackerman, P.A., Boca Raton, for Defendant.
REVERSED; 45 Fla. L. Weekly D1597aORDER ON PLAINTIFF’S MOTION FOR NEW TRIAL
THIS CAUSE having come before the Court on Plaintiff’s Motion for New Trial, and the Court after hearing argument of counsel, reviewed the court file, and being otherwise duly advised in the premises, finds as follows:
1. Several improper prejudicial statements occurred during the trial that deprived Plaintiff of a fair trial. Whether considered individually or cumulatively, these comments intentionally injected inadmissible and prejudicial testimony sought to distract the jury from the evidence they were to consider in reaching a verdict. A seasoned defense witness, Doctor Rolando Garcia, took it upon himself to inject his personal opinion about the Plaintiff’s lawyer and his personal opinion about how a treating witness was wrong in reading a scan.
2. First, Defendant’s compulsory medical examination (CME) doctor, Dr. Rolando Garcia, intentionally made improper, irrelevant, nonresponsive and highly prejudicial remarks about Plaintiff’s counsel during an effective, proper, cross-examination about how much money he was being paid by the defense. As the Plaintiff was making the point that the doctor had a financial interest in testifying favorably for the defense, the doctor intentionally and not related to any question, struck back at Plaintiff’s counsel:
18 A: I don’t know if that’s a question, but I’m
19 not plaintiff’s attorney. I don’t give my opinions
20 based on money.
(Tr. Testimony of Dr. Garcia at p. 42, Nov. 1, 2018). Plaintiff objected and contemporaneously moved for a mistrial, and the mistrial was initially denied. Dr. Garcia regularly testifies for defendants in personal injury litigation. As such, he is well aware that such testimony is highly improper. Dr. Garcia’s wholly improper comment was clearly intended to prejudice the jury, and was so pervasive that it undermined the integrity of the entire trial. Cordoba v. Rodriguez, 939 So. 2d 319 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2583a]. Therefore, a new trial is warranted based upon the highly improper and prejudicial comments made by Dr. Rolando Garcia. Specifically, Dr. Garcia’s comment is like the comment made by a witness in another case, Clark v. State, 881 So.2d 724 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D2067a]. In Clark, a State’s witness, upon questioning by defense counsel about whether he brought the requested records, responded that he had “even though you [defense counsel] told me not to bring them”. In ordering a new trial, the appellate court concluded this was a backhanded swipe at defense counsel’s integrity and ordered a new trial. One of the considerations was whether the comment was inadvertent or intentional. Based on the experience and demeanor of Dr. Garcia, there is no doubt in this Court’s mind that Dr. Garcia was angry at defense counsel when he intentionally took a direct shot.
3. Second, Dr. Rolando Garcia directly violated this Court’s Order granting Plaintiff’s Motion in Limine prohibiting the doctor from commenting on Plaintiff’s treating physicians. The ruling was made known to him in advance of trial.
4. Dr. Garcia testified, at page 27 and 28 of his trial testimony:
7 Q In the operative report — I want to just
8 step back for a second before — I want to go back to
9 the bills in a second. You mentioned something about
10 myelopathy. What does it mention there in the report?
11 A Yeah, that’s clearly [sic] — so, when you do the
12 —
13 MR. BAKER: Objection, Your Honor. May we
14 approach?
15 THE COURT: Yes. Objection?
16 MR. BAKER: Yes.
17 THE COURT: Okay.
18 (Thereupon, a sidebar conference was had:)
19 THE COURT: I think we have a violation of
20 the Motion in Limine.
21 MR. ACKERMAN: He was getting into different
22 —
23 THE COURT: I’ll strike it. It was clearly
24 incorrect. He’s criticizing the other guy.
25 Didn’t you tell him not to do that?
1 MR. ACKERMAN: I told him that I don’t think
2 he was going —
3 THE COURT: You want me to hold him in
4 contempt?
Dr. Garcia at line 11 above said Yeah, that’s clearly “wrong.” The Court heard it, counsel heard it, the jury heard it and the Court herein corrects the transcript to so reflect. Due to the contemporaneous and loud objection by Plaintiff’s counsel, the objection overshadowed the response by the witness. Due to an error in the transcription, the word “wrong” was omitted from the trial transcript of Dr. Garcia’s testimony. Dr. Garcia was improperly commented on Plaintiff’s treating surgeon in violation of the Court’s Order. Dr. Garcia’s intentional, willful violation Court’s in limine order commenting on the witness is prejudicial and warrants a new trial. See, Boatwright v. State, 452 So.2d 666 (Fla 4th DCA 1984); Acosta v. State, 798 So.2d 809 (Fla 4th DCA 2001) [26 Fla. L. Weekly D2543c] [New trial-jury decides the credibility of witnesses].
3. Third, the Court also considers that in conjunction with the improper, inflammatory and intentional comments by Dr. Garcia, Defense counsel also improperly brought in the nonissue of Plaintiff looking for a lawyer before she looked for a doctor when he cross-examined the Plaintiff about hiring a lawyer first. The timing in which the Plaintiff hired an attorney is irrelevant and prejudicial in that it improperly attack’s the Plaintiff’s credibility. The cases suggest that this improper attack alone supports a new trial. See, Howard v. Palmer, 123 So. 3d 1171, 1173 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D613a]; Watson v. Builders Square, Inc., 563 So. 2d 721, 722-23 (Fla. 4th DCA 1990); [reversible error to admit evidence of a plaintiff’s retention of a lawyer in relation to their medical treatment]. The Plaintiff testified, at page 18 of her trial testimony:
12 BY MR. ACKERMAN:
13 Q Ms. Medina, at the time you went to see Dr.
14 Reese, 12 days after the accident, isn’t it true that
15 you had already retained an attorney?
16 A By that time, my main worry was the pain that
17 I was feeling. When I went to Dr. Reese and I start
18 having the therapy, I knew I was going to have to pay
19 and I start thinking, you know, I was getting worried
20 about it.
21 Q My only question is, at the time you went to
22 see Dr. Reese 12 days after the accident, isn’t it true
23 that you had already retained an attorney?
24 A I was looking for an attorney.
25 Q Had you already retained an attorney, though,
(Tr. Testimony of Alicia Medina at p. 18, Oct. 31, 2018).
1 when you went to Dr. Reese 12 days later? Did you
2 already have one?
3 A I’m not sure about it, to be honest.
4 MR. ACKERMAN: Your Honor, may I approach?
5 THE COURT: Yes.
6 MR. ACKERMAN: I’m just showing her this one
7 page here.
8 BY MR. ACKERMAN:
9 Q Could you read that question?
10 THE COURT: To yourself.
11 MR. ACKERMAN: I’m sorry?
12 THE COURT: Could he read it to herself.
13 BY MR. ACKERMAN:
14 Q Read this yourself.
15 A “Have you retained an attorney?”
16 Q The Judge doesn’t want you to do that. Just
17 read it to yourself.
18 A “Have you retained an attorney?
19 Q Don’t —
20 A And I said yes.
Tr. Testimony of Alicia Medina at p. 19, Oct. 31, 2018).
Plaintiff’s counsel objected to the above line of questioning. The Fourth District Court of Appeal held that it is an abuse of discretion to admit evidence of the timing of a plaintiff’s retention of an attorney in relation to the medical treatment. Howard, 123 So. 3d at 1173; Watson, 563 So. 2d at 722-23. The overall impact of the Garcia comments and the cross examination about the timing of hiring a lawyer was an improper attack on the believability of the Plaintiff, the integrity of the Plaintiff and her lawyer and the believability of the treating doctor. The improper attack on the entire Plaintiff’s case warrants a new trial.
4. Fourth, the defense injected the wealth of State Farm into the trial. While subtle, Defense counsel’s improper closing remarks pertaining to the “big guy State Farm” implies and specifically states State Farm’s wealth/ability to pay money.
18 Instead, let’s hope that we can get a jury.
19 Let’s hope that we can get a jury of six people to
20 say, hey, we have got the big guy over there, State
21 Farm. We have got the big name and big lights,
22 every TV commercial. We have got State Farm.
23 And maybe, if we get six people to remember
24 that it’s State Farm on the other side, maybe
25 they’ll say, you know, something, let’s give her
(Tr. Transcr. at p. 17, Nov. 2, 2018).
1 money. Let’s ignore everything the Defendant said
2 because we have got State Farm over there.
Id. at 18.
It is well-established that the wealth or poverty of a party is irrelevant in personal injury cases. Chin v. Caiaffa, 42 So. 3d 300, 308-09 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1742a] (stating that courts of this state “long have recognized the danger inherent in such commentary and have often held it to constitute reversible error”) (citations omitted). Plaintiff did not object to counsel’s improper closing argument. Therefore, this Court must consider whether the cumulative effect of all of the errors in this case deprived the Plaintiff of a fundamentally fair trial. The implication of these comments is Plaintiff’s don’t have a case but that the plaintiff and her attorneys’ motive is “greed”. When considered with the Garcia improper comments and improper cross examination of the plaintiff, this comment piles on the prejudice to Plaintiff and warrants a new trial.
5. Finally, based upon the cumulative prejudicial effect of Dr. Garcia’s testimony, his attack on Plaintiff’s counsel, further, the violation of this Court’s Order in limine, the erroneous admission of evidence regarding the timing of when the Plaintiff retained an attorney and the comments in closing argument made by defense counsel, a new trial is hereby GRANTED.
