Stick to the evidence, sir

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 7

CASES FROM THE WEEK FEBRUARY 19, 2021

PLAINTIFFS’ COUNSEL’S COMMENTS CASTING OPPOSING COUNSEL AND SOME OF THE WITNESSES AS LIARS, AND MAKING SEXIST SOUNDING REMARKS ABOUT OPPOSING COUNSEL, CONSTITUTED FUNDAMENTAL ERROR

Florida Peninsular Ins. Co. v. Nolasco, 46 Fla. L. Weekly D328 (Fla. 3rd DCA February 10, 2021):

In this property damage claim, the insurance company defended by arguing that plaintiffs had staged the repairs they were seeking compensation for, and then submitted a fraudulent claim. After a four-day trial, the jury awarded the plaintiffs $20,000 in damages.

Ironically, even though that was the tack the insurance company took, it filed a motion for a new trial arguing that plaintiffs’ counsel had committed reversible fundamental error in closing argument, by calling the defense expert a “liar,” and in making inflammatory, prejudicial, and sexist comments about defense counsel. Plaintiffs’ counsel argued that because many of the comments were not objected to, the error complained of was not preserved and a new trial was not warranted. The trial court agreed.

Applying the Murphy four-part test for assessing fundamental error, the court assessed whether the un-objected to arguments were “(1) improper, (2) harmful, and (3) incurable, such that (4) the argument was so damaging to the fairness of the trial, that the public’s interest in our system of justice required a new trial.”

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In applying this test, the court looked at counsel’s statements regarding the expert having “lied” to the jury, referring to the expert as a “hired gun,” and repeatedly accusing defendant’s female attorney of “loving drama.”

The court reminded us that it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury (which also had occurred). It also ruled that the sexist language that plaintiffs’ counsel used (acknowledging that drama can be attributed to a person regardless of sex, but deferring to the trial court’s finding on the record that counsel’s remarks were in fact sexist), and improperly denigrated the defense.

Thus, because it was apparent that the focus of the closing argument was on the denigration of defense counsel and the defense witness, as opposed to attacking the evidence adduced at trial, such inflammatory and prejudicial remarks could not be condoned, and they demeaned the system of justice thereby necessitating a new trial even without proper objections.

AN ORDER REQUIRING PRODUCTION OF COMMUNICATIONS AND DOCUMENTS THAT PARTY CLAIMED WERE PROTECTED BY ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGES IS NOT RIPE FOR REVIEW WHEN IT GIVES THE PARTY CLAIMING THE PRIVILEGE AN OPPORTUNITY TO PREPARE A PRIVILEGE LOG

Hertz Corp. v. Sider, 46 Fla. L. Weekly D323 (Fla. 2nd DCA February 10, 2021):

Once a trial court determines that information is otherwise discoverable, a party objecting to its disclosure based on attorney-client or work product privileges must file a privilege log, noting which documents are privileged pursuant to Rule 1.280(b)(6).

A claim of work product protection or attorney-client privilege does not mature for review until such time as the privilege log has been filed.

CONSENT OF PARTIES IS REQUIRED TO TRANSFER ANY MATTER TO A SPECIAL MAGISTRATE

Cimino v. American Airlines, Inc., 46 Fla. L. Weekly D339 (Fla. 4th DCA February 10, 2021):

The trial court appointed a special magistrate to review native cell phone data in-camera, over the plaintiff/petitioner’s objection.

Plaintiff filed a petition for writ of mandamus, because consent of the party is required to refer any matter to a special magistrate under Rule 1.490(c) and the plaintiff objected to the appointment.

Mandamus lies to preclude reference of a matter to a magistrate without the consent of the parties. Therefore, precedent from the Fourth District required it to grant the writ of mandamus, and to compel the trial court to resolve the disputes without the use of a special magistrate.

HEARSAY EXCEPTION – STATE OF MIND, ADMITTING STATEMENT REVERSIBLE ERROR

R. J. Reynolds Tobacco Co. v. Hamilton, 46 Fla. L. Weekly D340 (Fla. 4th DCA February 10, 2021):

In this tobacco case that involved several other issues, the court reversed only on the state of mind hearsay issue. Specifically, the decedent had had a conversation with her husband (the plaintiff) advising him that if he were going to smoke, he should smoke filtered cigarettes because they were “safe,” “based on information she got from advertisements”.

RJR objected on hearsay grounds, arguing that the portion of the testimony concerning where she got that information about filtered cigarettes being safe was pure hearsay, and did not fall within the state of mind exception.

The plaintiff countered that pursuant to the Lorillard Tobacco Co v. Alexander case, the statement was admissible under that exception. The trial court overruled the objection and allowed the plaintiff to testify.

The Fourth District found Alexander to be distinguishable, because the statements there were offered to explain the declarant’s continued conduct of smoking. In this case, the court explained that the statement was made within the context of the decedent telling the plaintiff to smoke filtered cigarettes in the future because she had heard they were safe, from advertising.

Because that was not a statement of why the decedent herself continued to smoke filtered cigarettes, and because the statement was at least partially offered for its truth (and not for state of mind), the court found it was hearsay. Additionally, the court explained that a hearsay statement which recounts observations made previously is by definition an “after the fact statement of memory” which is expressly excluded from the state of mind exception under section 90.803(3)(b)1.

The court went on to find pursuant to Special, the ruling was indeed harmful, because there was a reasonable possibility that the error contributed to the verdict.

ERROR TO ALLOW PLAINTIFF TO INTRODUCE EVIDENCE OF DEFENDANT’S INTOXICATION DURING THE COMPENSATORY PHASE OF THE BIFURCATED TRIAL, DESPITE THE DEFENDANT’S PRE-TRIAL CONCESSION TO PROVE LIABILITY AND ENTITLEMENT TO PUNITIVE DAMAGES - - DEFENSE COUNSEL SHOULD ALSO BE ALLOWED TO INQUIRE INTO THE EXTENT OF THE PERSONAL RELATIONSHIP BETWEEN THE PLAINTIFF’S EXPERT AND PLAINTIFF’S COUNSEL

McKinney v. Graham, 46 Fla. L. Weekly D357 (Fla. 5th DCA February 12, 202l):

When a defendant admits liability in an automobile negligence case, and the only remaining issue is an amount of compensatory damages, evidence regarding the defendant’s sobriety should not be admitted. However, that rule does not apply when liability for punitive damages is also at issue.

Here, the defendant agreed that if there were liability for compensatory damages, then there would also be liability for punitive damages.

In this discrete instance, the court found it was error to allow the evidence of intoxication (which was mentioned often). The court observed that to the extent the Fifth District’s decision in Coucher could be read to allow the presentation of intoxication evidence in the compensatory phase of a bifurcated trial when liability and entitlement to punitive damages are conceded, the court found there was no precedential value, and aligned itself with the Second and Third Districts that held to the contrary.

Finally, for the retrial, the court noted that the trial judge should not have prevented cross-examination of the expert who was personal friends with plaintiff’s counsel. It admonished that if counsel elects to retain personal friends as experts, that relationship will be relevant to issues of bias.