$______ VERDICT - ELEVATOR NEGLIGENCE - DEFENDANT PERFORMING MAINTENANCE ON ELEVATOR WHEN PLAINTIFF STEPS THROUGH OPEN ELEVATOR DOORS AND DROPS DOWN 3 TO 5 FEET INTO ELEVATOR - KNEE AND LUMBAR INJURY COMPLICATED BY PRE-EXISTING CONGENITAL CONDITION - STEROID INJECTIONS, ORTHOPEDIC TREATMENT AND PHYSICAL THERAPY - DEFENDANT FILES POST-TRIAL MOTION FOR REMITTITUR OR NEW TRIAL.

• Pages: 4-5

the plaintiff’s second expert’s testimony was inadmissible because

it was a personal opinion beyond the scope of the Rule 1.310(b)(6)

deposition notice and because it constituted an improper lay opin-

ion under Rule 90.701. Admission of this improper evidence cre-

ated an unacceptable risk of jury confusion as to the appropriate

definition of addiction. Lastly, the defendant maintained that, dur-

ing Phase II cross-examination of the defendant’s company witness,

the plaintiff improperly made a direct appeal to one juror and in-

vited her to evaluate the testimony based on her own personal ex-

perience rather than the evidence. While the defendant’s objection

was sustained, this bell could not be unrung.

The defendant argued that the question itself was the problem; the

lack of an answer made no difference. With no basis in the evi-

dence, the plaintiff invoked middle school teachers, a direct appeal

to one particular juror. And in doing so, she invited that juror to

evaluate the witness’s testimony based on the juror’s own personal

experiences instead of the evidence. And because this question was

so directly targeted at a specific juror and her life experiences, the

plaintiff cannot show that there is “no reasonable possibility that

the error contributed to the verdict.” Special, 160 So. 3d at 1256.

The plaintiff opposed the defendant’s motion for new trial, arguing

that the court should deny the motion for the following reasons.

First, the supreme court’s recent decision in Prentice v. R.J. the de-

fendants Tobacco Company, No. SC20-291, 2022 WL 805951 (Fla.

Mar. 17, 2022) confirmed that the court’s instructions on the issues

of concealment and detrimental reliance were legally correct where

they required the plaintiff to prove reliance on false or misleading

statements by one or more Engle co conspirators, including the de-

fendant; the evidence in this case amply supported the jury’s ver-

dict that the decedent relied on such statements, and his reliance

was a legal cause of his cancer and death; the plaintiff was not re-

quired to identify any particular statement as the basis of the dece-

dent’s reliance; and moreover, in the light most favorable to the

plaintiff, she was entitled to an inference of detrimental reliance

based on the entirety of the evidence.

Second, the defendant asserted the court committed multiple “er-

rors” when ruling on the evidence. By and large, its arguments

merely rehash positions taken at trial which the court considered

and rejected. The court’s rulings were correct or at least reason-

able, and therefore within the court’s discretion (which is the rele-

vant test), citing Jackson v. State, 979 So. 2d 1153, 1154 (Fla. 5th

DCA 2008). The court did not act arbitrarily, fancifully, or unrea-

sonably. Accordingly, there were no errors.

Third, the defendant asserted it was entitled to a mistrial based on

a single question posed by the plaintiff’s counsel during the cross-

examination of the defendant’s company witness concerning the

defendant’s alleged efforts to prevent youth smoking. The claim is

that counsel made an improper Golden Rule argument when he

referenced “middle school teachers,” because there was a middle

school teacher on the jury. As the plaintiff explained to the court,

one of the defendant’s purported “youth tobacco prevention pro-

grams” is, in fact, directed at “middle schools,” which receive “free

… teaching materials” to help students “Be Tobacco Free.” The

defendant’s representative himself had testified on this same pro-

gram for middle school teachers in another case just a few weeks

prior to the trial in this case. There was no Golden Rule argument,

and counsel’s question was not improper; but even if it were, the

trial court sustained the defendant’s objection. There was no occa-

sion for a mistrial unless this one, unanswered question was “so

prejudicial as to vitiate the entire trial” citing Smiley v. State, 295

So. 3d 156, 169 (Fla. 2020).

The plaintiff asserted that the defendant could not possibly meet

this decidedly “high standard.” Fourth, the defendant asserted that

the application of Engle violated federal law. As it conceded, how-

ever, the Florida Supreme Court has already rejected such argu-

ments. Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 428–29

(Fla. 2013); R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590,

605 (Fla. 2017). The Court is obliged to follow these precedents.

The motion is pending.

$7,710,000 VERDICT – ELEVATOR NEGLIGENCE – DEFENDANT PERFORMING

MAINTENANCE ON ELEVATOR WHEN PLAINTIFF STEPS THROUGH OPEN ELEVATOR

DOORS AND DROPS DOWN 3 TO 5 FEET INTO ELEVATOR – KNEE AND LUMBAR

INJURY COMPLICATED BY PRE-EXISTING CONGENITAL CONDITION – STEROID

INJECTIONS, ORTHOPEDIC TREATMENT AND PHYSICAL THERAPY – DEFENDANT FILES

POST-TRIAL MOTION FOR REMITTITUR OR NEW TRIAL.

Broward County, FL

In this negligence case, the plaintiff, a

professional DJ, asserted that the defendant

elevator company negligently allowed an elevator

to be in operation while it was being worked on,

causing the plaintiff to fall into the elevator and

suffer significant, permanent injury. The

defendant ultimately stipulated liability for

negligence but contested the plaintiff’s damages.

On February 6, 2017, the plaintiff fell in an elevator while

employed at a radio station located at 2741 N. 29th Av-

enue in Hollywood. The plaintiff alleged that the defen-

dant elevator company was servicing the elevator at

the time and their negligence caused him to fall. The

plaintiff claimed that the elevator was not level and was

movingatthetimehesteppedintoit,causinghimto

fall approximately three to five feet down to the elevator

floor. The plaintiff alleged that the fall resulted in

permanent injuries.

As a result of the fall, the plaintiff sustained knee and

lumbar injury. The plaintiff treated with steroid injections,

orthopedic treatment, and physical therapy. The plaintiff

also faces future lumbar surgery which is traumatizing

due to the many surgeries the plaintiff had as a child

and his resulting fear of surgery. The plaintiff presented

evidence as to lost earning capacity including an invita-

tion from the artist Pitbull to open for 50 shows on Pitbull’s

2021 tour at $10,000 per show to establish a loss of at

least $500,000 per year for 15 years.

The defendant maintained that assessing the plaintiff’s

damages was complicated by the plaintiff’s congenital

condition known as arthrogryposis for which he under-

4 SUMMARIES WITH TRIAL ANALYSIS

Volume 32, Issue 8, August 2022 Subscribe Now