Following the jury’s finding the plaintiff 50% negligent, the plain-
tiff filed a motion for new trial. The plaintiff asserted that testi-
mony at trial was unrefuted and the manifest weight of the
evidence clearly established that the plaintiff suffered permanent
injury as a result of the fall, incurred past medical expenses, and
will incur medical expenses in the future. During the trial, the de-
fendant was allowed to put on improper expert testimony which
should have been stricken, the defendant improperly made the liti-
giousness of the plaintiff a feature of the trial, and defense counsel
violated the Golden Rule during closing argument, all of which
were improper, prejudicial to the plaintiff, and warranted a new
The plaintiff maintained that it is unrefuted that the testimony
given by the defense expert was pure opinion testimony. The de-
fendant’s expert testified at trial that his inspection of the floor was
September 29, 2021. He further testified that the conditions of the
floor were not the same as on the date of incident, admitting that
the floor looked “cleaner” on the date of his visit. The defendant’s
expert was testing the floor as it looked on the date of his visit and
was not attempting to recreate the scene as it was on the date of
the subject incident. The defendant’s expert testified that the con-
taminants on the floor made no difference to his testing, but was
later impeached with his deposition where he stated that the pres-
ence of contaminants on the floor on the date of incident would
have made it more likely that someone could slip on the floor.
The expert further testified that he had no idea what the slip resis-
tance would have been like on the day the plaintiff fell. Lastly, de-
fense counsel relied on the testimony of their expert in closing
arguments and, based on this testimony, there can be no other con-
clusion but that the entirety of the testimony given to the jury by
the defense expert was nothing more than opinion testimony. An
expert must know “facts which enable him to express a reasonably
accurate conclusion instead of mere conjecture or speculation.
Jones v. Otis Elevator Co., 861 F.2d 655, 662 (11th Cir. 1998). A
timely motion was made after the testimony was given requesting
that the entirety of the testimony be stricken and a jury instruction
to disregard the entire testimony based on the motion, which was
denied. The testimony was allowed to be considered by the jury,
which the plaintiff argued was prejudicial and denied the plaintiff
a fair trial.
Additionally, the defendant sought to cross-examine plaintiff basi-
cally to discredit her and impeach her testimony on the basis that
the plaintiff had been a litigant and had pursued at least two legal
claims, eliciting testimony that she stopped treating after at least
one of the claims. Introduction of the element of the lack of treat-
ment following the conclusion of the other lawsuits could have had
no effect other than to try to prejudice the jury against the plaintiff.
Litigiousness in the eyes of most people would reflect more upon
character than upon the response to a repeated situation. To deter-
mine litigiousness to be the proper subject of cross examination for
impeachment purposes would be tantamount to stating that one
creates a legal wrong by enforcing one’s rights when they are vio-
lated. Such would be a gross infringement upon the basic rights
granted by the Constitution of the State of Florida. Justice Cardozo
once stated that to enforce one’s rights when they are violated is
never a legal wrong and may often be a moral duty.
But, what happens in many instances is that the violation passes
with no effort to redress it, sometimes because of praiseworthy for-
bearance, sometimes from weakness and sometimes from mere in-
ertia. But the law which creates a right can certainly not concede
that an insistence upon its enforcement is evidence of a wrong.
Zabner v. Howard Johnson’s Inc. of Florida, 227 So.2d 543, 546
(Fla. 4th DCA 1969). During the defendant’s closing argument,
plaintiff’s counsel objected and asked for a curative instruction and
a mistrial. Thus, the issue was preserved. Companioni v. City of
Tampa, 51 So.3d 452, 456 (Fla.2010). Just as was the case in
Zabner, litigiousness was a feature of the trial in the present case
and denied the plaintiff the right to a fair trial.
Lastly, the plaintiff sought a new trial because, in closing argu-
ment, the defense attorney asked the jurors, in effect, to place
themselves in the plaintiffs’ position. Defense counsel said “We’ve
known since we were this high, that if you step onto something wet
or muddy it’s more likely to be slippery than something that’s nice
and dry”. Thereafter, a timely objection to the Golden Rule was
made by plaintiff’s counsel, which was overruled. Defense counsel
immediately followed that up with “It’s common sense, folks. If you
see something there, don’t go step into it. Take a photo in front of
the fountain where it’s nice and dry. Don’t put yourself in harm’s
way” The remark was an improper “golden rule” argument – an
attempt to undermine the neutrality of the jury by asking its mem-
bers to identify with the plaintiff and make a determination from a
personal perspective. Reversal is required in the face of such an ar-
gument, National Car Rental Sys., Inc. v. Bostic, 423 So.2d 915
(Fla. 3d DCA 1982) (“golden rule” violation constitutes reversible
error). As such, the comments made in closing arguments by the
defendant constituted an improper Golden Rule argument. Based
on well-established Florida law and supported by the record, the
plaintiff was deprived of a fair trial.
Miami-Dade County, FL
In this medical malpractice case, the plaintiff wife
of the decedent asserted that the defendant
urologist deviated from the standard of care in
addressing intraoperative bleeding in the
plaintiff’s decedent who was being surgically
treated by the defendant for prostate cancer. The
defendant denied any deviation and argued that
the patient suffered a known risk of surgery. Just
prior to trial, the plaintiff settled with the
intensivist and the intensive care unit staff and the
trial proceeded only as to the defendant urologist
and her practice.
In March 2015, the decedent patient began treatment
with the defendant urologist. At the time, the patient was
70 years old and had a history of heart murmurs and hy-
pertension. The patient underwent a prostate cancer
Volume 32, Issue 2, February 2022 Subscribe Now

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT