7 Fla. L. Weekly Supp. 338a
Insurance — Uninsured motorist — New trial — Improper impeachment of plaintiff’s expert witness, in and of itself, does not warrant new trial on liability — With regard to assertion that expert witness for defendant committed perjury, counsel for plaintiffs impeached witness in this regard and as such there was no prejudice to plaintiffs — Argument — Defense counsel’s improper remarks about plaintiff being personal injury plaintiff’s attorney, throughout trial, were improper appeals to jury’s emotion, bias and prejudices, and cumulative effect of counsel’s conduct pervaded trial and resulted in plaintiff being denied fair trial — Even if evidence submitted by plaintiff in his case in chief may not have been particularly strong, and defendant may have prevailed had counsel’s remarks been omitted, it cannot be said as mater of law that comments had no effect on jury’s verdict — Motion for new trial granted
Affirmed at 26 Fla. L. Weekly D40a
JEFFREY WOLFSON and JUDY WOLFSON, his wife, Plaintiffs, vs. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 96-003429 (09). February 23, 2000. Robert Lance Andrews, Judge.
ORDER
THIS CAUSE having come before the Court on Plaintiffs’ Motion for a New Trial, and the Court, having considered same, having heard argument of counsel, and being otherwise duly advised in premises, finds and decides as follows:
This is an action on an uninsured motorist claim. After a jury trial, a verdict was rendered in favor of Defendant. The Plaintiffs now move for an order granting a new trial. In support of the motion for a new trial, the Plaintiffs assert that counsel for the Defendant improperly impeached their expert witness, as there was no good faith basis for the impeachment; that an expert witness for the Defendant committed perjury; and that counsel for the Defendant made improper remarks and comments during the course of the trial, thus prejudicing the Plaintiffs and preventing a fair trial on the merits.
The Plaintiffs’ first argument, with regard to improper impeachment, focuses on counsel for the Defendant attempting to impeach the Plaintiffs’ expert witness, Dr. Steven Gelbard, by asking him if his privileges to perform surgeries in hospitals in Broward County had been suspended. Counsel for the Plaintiff challenged this line of questioning unless counsel for the Defendant had a good faith basis for asking the question. This Court inquired of counsel for the Defendant if, indeed, she had anything from the Department of Professional Regulation that showed Dr. Gelbard’s privileges had been suspended. Counsel for the Defendant assured this Court that she did, however, she did not have it with her at the time. This Court gave counsel a reasonable period of time to produce and admonished her that failure to produce an order from the Department of Professional Regulation would result in her being sent up for indirect criminal contempt. This Court also agreed, that if counsel for the Defendant failed to produce documentation, within a reasonable period of time, if there was an adverse verdict against the Plaintiff on the issue of damages, this Court would grant a new trial. Counsel for the Defendant was allowed to proceed with the questioning of Dr. Gelbard, who ultimately admitted that his privileges were suspended.
Subsequent to the jury verdict, finding no liability on the part of the Defendant, the Plaintiffs moved for a new trial. At a hearing on December 7, 1999, this Court found that counsel for the Defendant was unable to produce any admissible evidence to refute Dr. Gelbard if he had answered in the negative to her question, and therefore did not have a good faith basis for the impeachment. However, while this Court agreed to grant the Plaintiffs a new trial if there was an adverse verdict as to damages, the improper impeachment, in and of itself, does not warrant a new trial on liability.
With regard to the assertion that an expert witness for the Defendant committed perjury, although this Court received evidence to support this allegation, counsel for the Plaintiffs impeached the witness in this regard and as such there was no prejudice to the Plaintiffs.
Turning to the Plaintiffs’ final assertion, this Court finds merit to the Plaintiffs’ argument that improper remarks of counsel for the Defendant, made before the jury, appealed to bias, prejudice and emotion, thereby depriving the Plaintiffs of a fair trial.
In order to insure a fair trial, it is essential that a jury reach its verdict by a calm and dispassionate consideration of the evidence and the merits. Byrd v. Felder, 311 So.2d 739 (Fla. 3d DCA 1967). If counsel makes improper remarks and comments in the presence and hearing of the jury, that are of such a character as to influence the verdict to prevent a fair trial, valid grounds for a new trial may exist. Blanco v. State, 7 So.2d 333 (Fla. 1942).
During her opening statement, counsel for the Defendant made the following remarks:
“You’re going to learn about who Jeff Wolfson is. He does plaintiff’s personal injury work. He’s a plaintiff’s attorney. He pursues personal injury lawsuits. He’s very familiar with personal injury lawsuits.
The officer came and Jeffrey Wolfson is going to try to make you believe, you see, this was a real genuine accident because, look a police officer came. But you’re going to know that Jeffrey Wolfson is a plaintiff’s personal injury lawyer, and he know the right thing to do is to have a police officer at the scene of an accident.
And it’s because Jeffrey Wolfson, again who’s a plaintiff attorney, is sort of orchestrating this whole thing and deciding where he’s going to go and what he’s going to do.”
At this point, counsel for the Plaintiff objected and this Court sustained the objection, advising the jury that this was an improper opening statement and to disregard.
Clearly, these statements were made with the intent of denigrating the Plaintiff in the eyes of the jury. In today’s climate, with so much of the public having negative views against attorneys, especially personal injury attorneys, these statements were clearly intended to create an atmosphere where the jury would dislike the Plaintiff because he was a personal injury attorney, and then rule against the Plaintiff simply because they disliked him. See e.g. La Reina Pharmacy v. Lopez, 453 So.2d 882 (Fla. 3d DCA 1984); Little Bridge Marina v. Jones Boat Yard, 673 So.2d 77 (Fla. 3d DCA 1996).
In continuing her opening statement, counsel for the Defendant also passed judgment on the Plaintiffs’ expert witnesses, remarking:
And Dr. Buchalter will tell you Jeffrey Wolfson sends his clients to Dr. Buchalter for orthopedic treatments, and they have a relationship.
And you’re going to see that Dr. Gelbard has some interesting things going on as well. He also has a relationship with Jeffrey Wolfson. They have been in depositions together, and they have met and they even met on this case to talk about their case.
Dr. Hoffer, just so you know the other character in the plaintiff’s case, that’s the convicted felon I told you about. He’s also going to tell you he met Jeffrey Wolfson from networking, plaintiff’s lawyers and doctors networking together.
You’re going to just see that basically this is a trial of plaintiff trying to manipulate the case.
Again, counsel for the Plaintiff objected, and this Court sustained the objection for improper opening statement and advised the jury to disregard.
These statements insinuate that the Plaintiff and his doctors were “in cahoots,” and had orchestrated the case, misleading the jury. See e.g. Venning v. Roe, 616 So.2d 604 (Fla. 2d DCA 1993).
Throughout the course of the trial, counsel for the Defendant made numerous references to the Plaintiff being a personal injury plaintiff’s attorney. Again, counsel for the Defendant made remarks about the Plaintiff being a personal injury attorney in her closing argument.
And if you’re to believe this accident occurred, you have to believe Jeffrey Wolfson. And you have to decide if Jeffrey Wolfson is someone that you think is truthful, honest sincere and trustworthy.
Now why do I say he’s a personal injury lawyer? is it because I want to be mean to plaintiffs personal injury lawyers? No. Because you need to know that he knows how these cases work.
Because it wouldn’t be fair if you didn’t know that, if you just thought he was like anybody else. It wouldn’t be fair if you didn’t know that he handles this exact type case; that he handles these injury cases and neck cases; that he knows that it’s good to have some corroborating evidence and call a police officer to a scene and say an accident occurred. It wouldn’t be fair if you don’t know that. he know that.
This is case where, because there were no eyewitnesses, resolution would be dependent on the credibility of the parties’ differing accounts of the facts. See Little Bridge Marina, supra. It is clear that the remarks and statements made by counsel for the Defendant were prejudicial to the Plaintiff. The statements made about the Plaintiff being a personal injury plaintiff’s attorney were not only inappropriate but also legally immaterial and irrelevant to this case. Id. These unfair character assassinations would have no effect but to inflame the jury against the Plaintiff and in doing so deny the Plaintiff of a fair trial. See Simmons v. Baptist Hospital of Miami, Inc., 454 So.2d 681 (Fla. 3d DCA 1984).
Counsel for the Plaintiff did make timely objections to some of defense counsel’s remarks, which this Court sustained, however, he did not move for a mistrial. However, while moving for a mistrial is necessary to preserve the issue for appeal, in Nigro v. Brady, 731 So.2d 54 (Fla. 4th DCA 1999), the Court concluded that “[t]he preservation rule which applies to raising issues on appeal does not apply to motions for new trial.” Therefore, this Court has discretion to grant a new trial, even when counsel does not move for a mistrial. Furthermore, though counsel for the Plaintiff did not object to every remark, this Court finds that the objections would have been fruitless, as counsel for the Defendant still persisted with her improper remarks after this Court sustained the objection and gave a curative instruction. It is well settled that where the “[p]rejudicial conduct in its collective import is so extensive as to pervade the trial, a new trial should be awarded regardless of the want of an objection.” Tyus v. Apalachicola Northern R.R. Co., 130 So.2d 580 (Fla. 1961).
Based on the Court’s personal observation of the trial and the conduct of counsel, this Court finds that because of the statements made by counsel for the Defendant, throughout the trial, the jury was influenced by matters outside the record. These remarks were improper appeals of counsel for the Defendant to the jury’s emotion, bias and prejudices. Even if the evidence submitted by the Plaintiff in his case in chief may not have been particularly strong, and the Defendant may have prevailed had counsel’s remarks been omitted, it cannot be said as a matter of law that the comments had no effect on the jury’s verdict. See Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993). It is incontrovertible that the cumulative effect of defense counsel’s conduct pervaded the trial and resulted in the Plaintiff being denied a fair trial.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiffs’ Motion for a New Trial is GRANTED.
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