41 Fla. L. Weekly D295bTop of Form
Wrongful
death — Medical malpractice — New trial — Plaintiff suffered prejudice
where, shortly before trial, defendant amended Fabre defense to include
other physicians as non-party defendants and then withdrew the Fabre
defense on the last day of trial — Events created situation in which plaintiff
presented case premised on fact that jury would apportion fault between
defendant and Fabre defendants, only to have jury to decide case on an
all-or-nothing basis — Trial court abused discretion in denying plaintiff’s
motion for new trial
death — Medical malpractice — New trial — Plaintiff suffered prejudice
where, shortly before trial, defendant amended Fabre defense to include
other physicians as non-party defendants and then withdrew the Fabre
defense on the last day of trial — Events created situation in which plaintiff
presented case premised on fact that jury would apportion fault between
defendant and Fabre defendants, only to have jury to decide case on an
all-or-nothing basis — Trial court abused discretion in denying plaintiff’s
motion for new trial
JEFFREY M. EDWARDS, as Personal Representative of the Estate
of MARY EDWARDS, deceased, for and on behalf of lawful survivors/claimants;
JEFFREY M. EDWARDS, surviving spouse; JEFFREY M. EDWARDS, JR., surviving minor
child; CARL A. EDWARDS, surviving minor child; and MATTHEW T. EDWARDS,
surviving minor child, Appellants, v. JEFFREY ROSEN, M.D.; FLORIDA HEART
ASSOCIATES, P.L.; SHAHEEN FARUQUE, M.D.; INPATIENT CONSULTANTS OF FLORIDA,
INC.; IMTIAZ AHMAD, M.D.; ALLERGY, SLEEP AND LUNG CARE, P.A.; and LEE MEMORIAL
HEALTH SYSTEM, Appellees. 2nd District. Case No. 2D14-3093. Opinion filed
January 29, 2016. Appeal from the Circuit Court for Lee County; Keith R. Kyle,
Judge. Counsel: Harvey J. Sepler, Hollywood, for Appellants. Mark Hicks, Cindy
Ebenfeld, and Jedidiah Vander Klok of Hicks, Porter, Ebenfeld & Stein,
P.A., Miami; and Ronald H. Josepher, Tyler Batteese, and Brendan W. Rowe of
Josepher & Batteese, P.A., Tampa, for Appellees Jeffrey Rosen, M.D. and
Florida Heart Associates, P.L. No appearance for remaining Appellees.
of MARY EDWARDS, deceased, for and on behalf of lawful survivors/claimants;
JEFFREY M. EDWARDS, surviving spouse; JEFFREY M. EDWARDS, JR., surviving minor
child; CARL A. EDWARDS, surviving minor child; and MATTHEW T. EDWARDS,
surviving minor child, Appellants, v. JEFFREY ROSEN, M.D.; FLORIDA HEART
ASSOCIATES, P.L.; SHAHEEN FARUQUE, M.D.; INPATIENT CONSULTANTS OF FLORIDA,
INC.; IMTIAZ AHMAD, M.D.; ALLERGY, SLEEP AND LUNG CARE, P.A.; and LEE MEMORIAL
HEALTH SYSTEM, Appellees. 2nd District. Case No. 2D14-3093. Opinion filed
January 29, 2016. Appeal from the Circuit Court for Lee County; Keith R. Kyle,
Judge. Counsel: Harvey J. Sepler, Hollywood, for Appellants. Mark Hicks, Cindy
Ebenfeld, and Jedidiah Vander Klok of Hicks, Porter, Ebenfeld & Stein,
P.A., Miami; and Ronald H. Josepher, Tyler Batteese, and Brendan W. Rowe of
Josepher & Batteese, P.A., Tampa, for Appellees Jeffrey Rosen, M.D. and
Florida Heart Associates, P.L. No appearance for remaining Appellees.
(KHOUZAM, Judge.) Jeffrey Edwards and his children
(collectively Edwards) appeal the final judgment entered in favor of Dr.
Jeffrey Rosen following a jury trial. Because the trial court should have
granted Edwards’ motion for a new trial, we reverse.
(collectively Edwards) appeal the final judgment entered in favor of Dr.
Jeffrey Rosen following a jury trial. Because the trial court should have
granted Edwards’ motion for a new trial, we reverse.
I. Background
Jeffrey Edwards’ wife, Mrs. Mary Edwards, was hospitalized
for a pulmonary embolism and placed under the care of a team of physicians lead
by Dr. Shaheen Faruque. The team included Dr. Rosen, Dr. Jeffrey Scott, Dr.
Richard Juda, and Dr. Imtiaz Ahmad. Mrs. Edwards eventually died while she was
under the care of these physicians. Edwards filed suit against Dr. Faruque, Dr.
Ahmad, Dr. Rosen, their employers, and Lee Memorial Health Systems, which in
turn employed Dr. Scott and Dr. Juda.1 In his original answer, Dr. Rosen
raised a conditional Fabre2 defense, alleging: “[I]f any
Co-Defendants are dismissed from this case at any time, these Defendants adopt
at the time of dismissal all allegations asserted by Plaintiff against those
Co-Defendants, for purposes of placing those individuals and/or entities on the
verdict form pursuant to Fabre.” Dr. Ahmad and his employer were granted
summary judgment. Edwards reached a settlement with Dr. Faruque, his employer,
and Lee Memorial Health Systems, leaving only Dr. Rosen as a defendant. The
court initially allowed Dr. Rosen to raise a Fabre defense with respect
to Lee Memorial Health Systems for the alleged negligence of Dr. Scott and Dr.
Juda. However, Edwards filed a motion arguing that Lee Memorial could not be
put on the verdict form pursuant to Fabre because Lee Memorial would
only be vicariously liable for the negligence of Dr. Scott and Dr. Juda. See
Nash v. Wells Fargo Guard Servs., Inc., 678 So. 2d 1262, 1264 (Fla.
1996) (holding that a “named defendant cannot rely on the vicarious liability
of a nonparty to establish the nonparty’s fault”). The court granted the motion
and struck Lee Memorial as a Fabre defendant.
for a pulmonary embolism and placed under the care of a team of physicians lead
by Dr. Shaheen Faruque. The team included Dr. Rosen, Dr. Jeffrey Scott, Dr.
Richard Juda, and Dr. Imtiaz Ahmad. Mrs. Edwards eventually died while she was
under the care of these physicians. Edwards filed suit against Dr. Faruque, Dr.
Ahmad, Dr. Rosen, their employers, and Lee Memorial Health Systems, which in
turn employed Dr. Scott and Dr. Juda.1 In his original answer, Dr. Rosen
raised a conditional Fabre2 defense, alleging: “[I]f any
Co-Defendants are dismissed from this case at any time, these Defendants adopt
at the time of dismissal all allegations asserted by Plaintiff against those
Co-Defendants, for purposes of placing those individuals and/or entities on the
verdict form pursuant to Fabre.” Dr. Ahmad and his employer were granted
summary judgment. Edwards reached a settlement with Dr. Faruque, his employer,
and Lee Memorial Health Systems, leaving only Dr. Rosen as a defendant. The
court initially allowed Dr. Rosen to raise a Fabre defense with respect
to Lee Memorial Health Systems for the alleged negligence of Dr. Scott and Dr.
Juda. However, Edwards filed a motion arguing that Lee Memorial could not be
put on the verdict form pursuant to Fabre because Lee Memorial would
only be vicariously liable for the negligence of Dr. Scott and Dr. Juda. See
Nash v. Wells Fargo Guard Servs., Inc., 678 So. 2d 1262, 1264 (Fla.
1996) (holding that a “named defendant cannot rely on the vicarious liability
of a nonparty to establish the nonparty’s fault”). The court granted the motion
and struck Lee Memorial as a Fabre defendant.
In response to the striking of Lee Memorial Hospital as a Fabre
defendant, Dr. Rosen moved ore tenus to amend his Fabre defense to
specifically include Dr. Juda and Dr. Scott as non-party defendants. Edwards
objected, arguing that due to the trial’s proximity, he would be prejudiced
because his trial preparations had not accounted for the inclusion of these two
doctors. The court granted the motion in light of its reconsideration of the
motion to strike Lee Memorial and the fact that discovery had been taken with
respect to these two doctors. Trial commenced twelve days later.
defendant, Dr. Rosen moved ore tenus to amend his Fabre defense to
specifically include Dr. Juda and Dr. Scott as non-party defendants. Edwards
objected, arguing that due to the trial’s proximity, he would be prejudiced
because his trial preparations had not accounted for the inclusion of these two
doctors. The court granted the motion in light of its reconsideration of the
motion to strike Lee Memorial and the fact that discovery had been taken with
respect to these two doctors. Trial commenced twelve days later.
The case proceeded to trial with Dr. Rosen as the named
defendant and with Doctors Scott, Juda, and Faruque as Fabre defendants
as pleaded by Dr. Rosen. During preliminary instructions, the court instructed
the jury as follows:
defendant and with Doctors Scott, Juda, and Faruque as Fabre defendants
as pleaded by Dr. Rosen. During preliminary instructions, the court instructed
the jury as follows:
If
I later decide different or additional law applies to this case, I will tell
you. In any event, at the end of the evidence, I will give you the final
instructions on which you must base your verdict. At that time, you will each
be given a complete written set of the instructions that I am reading to you,
so you do not have to memorize what I’m about to tell you.
I later decide different or additional law applies to this case, I will tell
you. In any event, at the end of the evidence, I will give you the final
instructions on which you must base your verdict. At that time, you will each
be given a complete written set of the instructions that I am reading to you,
so you do not have to memorize what I’m about to tell you.
At trial, Edwards curated his case around the fact that all
of these doctors would be on the verdict form for the purposes of apportioning
liability under Fabre. During opening arguments, Edwards’ counsel
informed the jury that Dr. Rosen would be alleging as an affirmative defense
that the other doctors were negligent:
of these doctors would be on the verdict form for the purposes of apportioning
liability under Fabre. During opening arguments, Edwards’ counsel
informed the jury that Dr. Rosen would be alleging as an affirmative defense
that the other doctors were negligent:
[Dr.
Rosen] pled as an affirmative defense that it was Dr. Juda and Dr. Scott and
Dr. Faruque that were negligent in this case, that he was not negligent, but
these physicians were negligent in treating [Mrs. Edwards]. And if they are
negligent as part of the team, Dr. Rosen is just as negligent.
Rosen] pled as an affirmative defense that it was Dr. Juda and Dr. Scott and
Dr. Faruque that were negligent in this case, that he was not negligent, but
these physicians were negligent in treating [Mrs. Edwards]. And if they are
negligent as part of the team, Dr. Rosen is just as negligent.
During his case-in-chief Edwards presented evidence that all
of the treating physicians were negligent in their treatment of Mrs. Edwards in
reliance on the fact that Dr. Rosen had pleaded the affirmative defense that
the other doctors were negligent. Edwards finished his presentation of evidence
on February 5, 2014. Dr. Scott began reading back his first deposition on the
same day. After the jury left the courtroom, the court and the attorneys
discussed how the rest of the trial would proceed. Before adjourning for the
evening, the court asked: “Anything else folks?” Dr. Rosen did not state that
he had another matter to resolve.
of the treating physicians were negligent in their treatment of Mrs. Edwards in
reliance on the fact that Dr. Rosen had pleaded the affirmative defense that
the other doctors were negligent. Edwards finished his presentation of evidence
on February 5, 2014. Dr. Scott began reading back his first deposition on the
same day. After the jury left the courtroom, the court and the attorneys
discussed how the rest of the trial would proceed. Before adjourning for the
evening, the court asked: “Anything else folks?” Dr. Rosen did not state that
he had another matter to resolve.
The next morning, on the final day of trial, the proceedings
began as follows:
began as follows:
THE
COURT: Good morning everyone. We need to go ahead and go on record for the
Edwards case, 10-CA-2482. We have everyone present and accounted for. We are
waiting for the jury. Go ahead sir.
COURT: Good morning everyone. We need to go ahead and go on record for the
Edwards case, 10-CA-2482. We have everyone present and accounted for. We are
waiting for the jury. Go ahead sir.
[DR.
ROSEN’S COUNSEL]: Yes, Your Honor. At this time the defense is withdrawn. It’s
a [Fabre] defense.
ROSEN’S COUNSEL]: Yes, Your Honor. At this time the defense is withdrawn. It’s
a [Fabre] defense.
THE
COURT: As to all three?
COURT: As to all three?
[DR.
ROSEN’S COUNSEL]: As to all. Yes, Your Honor.
ROSEN’S COUNSEL]: As to all. Yes, Your Honor.
Edwards immediately objected and moved for a mistrial,
claiming that withdrawing the defense was prejudicial and premeditated. Edwards
argued that he had tailored his case to account for Dr. Rosen’s Fabre
defense:
claiming that withdrawing the defense was prejudicial and premeditated. Edwards
argued that he had tailored his case to account for Dr. Rosen’s Fabre
defense:
And
we put that on, Your Honor, because there was a defense. They hemmed and hawed
and fought like hell to amend their affirmative defenses in this case, Your
Honor, at the [thirteenth] hour and you allowed it in, Your Honor. You granted
their motion, their ore tenus motion to amend to allow a claim against Dr.
Faruque, against Dr. Ahmad, and against Dr. Scott. This is how we just — this
is what they do. This is how they do it, and I think it’s extremely
prejudicial. I would never have put that testimony, Your Honor. I would have
just concentrated on Dr. Rosen and he would have been the only one on the
verdict form.
we put that on, Your Honor, because there was a defense. They hemmed and hawed
and fought like hell to amend their affirmative defenses in this case, Your
Honor, at the [thirteenth] hour and you allowed it in, Your Honor. You granted
their motion, their ore tenus motion to amend to allow a claim against Dr.
Faruque, against Dr. Ahmad, and against Dr. Scott. This is how we just — this
is what they do. This is how they do it, and I think it’s extremely
prejudicial. I would never have put that testimony, Your Honor. I would have
just concentrated on Dr. Rosen and he would have been the only one on the
verdict form.
The court was also troubled by the tactic employed by Dr.
Rosen but felt constrained to allow it:
Rosen but felt constrained to allow it:
I’m
frankly troubled and I share your concern . . . insofar as this side you all
fought like tooth and nail to get those defenses in, now about three to four
weeks ago at most, and here we are dropping them. But the case, well insofar as
I’m aware, does allow for a permitted defendant at anytime to drop defenses
just as a plaintiff can drop a claim.
frankly troubled and I share your concern . . . insofar as this side you all
fought like tooth and nail to get those defenses in, now about three to four
weeks ago at most, and here we are dropping them. But the case, well insofar as
I’m aware, does allow for a permitted defendant at anytime to drop defenses
just as a plaintiff can drop a claim.
Edwards also moved for a curative instruction to inform the
jury that Dr. Rosen had withdrawn the affirmative defense. However, the trial
court did not rule on the motion. Rather, it delayed ruling on the matter until
the final jury instructions were discussed and added the following instruction
to account for the change: “As I previously instructed I advised you that if I
decide a different or additional law applies after presentation of the case, I
would tell you. Please note these instructions are different and these revised
instructions are the ones that you must follow in reaching your verdict.” After
the six-day trial, the jury was then provided a verdict form asking them to
decide whether there was any negligence on the part of Dr. Rosen that was the
legal cause of Mrs. Edwards’ death. The form asked the jury to check either
“yes” or “no.”
jury that Dr. Rosen had withdrawn the affirmative defense. However, the trial
court did not rule on the motion. Rather, it delayed ruling on the matter until
the final jury instructions were discussed and added the following instruction
to account for the change: “As I previously instructed I advised you that if I
decide a different or additional law applies after presentation of the case, I
would tell you. Please note these instructions are different and these revised
instructions are the ones that you must follow in reaching your verdict.” After
the six-day trial, the jury was then provided a verdict form asking them to
decide whether there was any negligence on the part of Dr. Rosen that was the
legal cause of Mrs. Edwards’ death. The form asked the jury to check either
“yes” or “no.”
During closing arguments, Dr. Rosen’s attorney further
highlighted the issue, arguing:
highlighted the issue, arguing:
Keep
in mind that you should all realize this. Only defendants in the case were Dr.
Rosen and his partner. There are no other defendants in this case, and although
the defense is not — didn’t present any other testimony, any witnesses to say
that the treatment by the others was negligent, it’s not part of the case. If
you all have any kind of disagreement with the other treatment, that’s not for
this case because Dr. Rosen is the only defendant and so he is automatically
responsible for that. So it’s a case against Dr. Rosen.
in mind that you should all realize this. Only defendants in the case were Dr.
Rosen and his partner. There are no other defendants in this case, and although
the defense is not — didn’t present any other testimony, any witnesses to say
that the treatment by the others was negligent, it’s not part of the case. If
you all have any kind of disagreement with the other treatment, that’s not for
this case because Dr. Rosen is the only defendant and so he is automatically
responsible for that. So it’s a case against Dr. Rosen.
The jury returned a verdict in favor of Dr. Rosen. Edwards
filed a motion for a new trial followed by an amended motion.
filed a motion for a new trial followed by an amended motion.
At the hearing on Edwards’ motions and in the motions
themselves, Edwards argued that the cumulative events of the expansion of the Fabre
defense prior to trial, Dr. Rosen’s last minute withdrawal of the defense, and
the trial court’s refusal to give a curative instruction collectively
prejudiced him and warranted a new trial. He insisted that the existence of the
Fabre defense shaped the presentation of his case — that he would have
presented his case differently if Dr. Rosen was not going to place the Fabre
defendants on the verdict form. The trial court asked Edwards’ counsel the
following:
themselves, Edwards argued that the cumulative events of the expansion of the Fabre
defense prior to trial, Dr. Rosen’s last minute withdrawal of the defense, and
the trial court’s refusal to give a curative instruction collectively
prejudiced him and warranted a new trial. He insisted that the existence of the
Fabre defense shaped the presentation of his case — that he would have
presented his case differently if Dr. Rosen was not going to place the Fabre
defendants on the verdict form. The trial court asked Edwards’ counsel the
following:
THE
COURT: Did anyone ever move to amend the pleadings?
COURT: Did anyone ever move to amend the pleadings?
MS.
LEVINE: No, I did not move to amend the pleadings, your Honor.
LEVINE: No, I did not move to amend the pleadings, your Honor.
THE
COURT: Okay.
COURT: Okay.
MS.
LEVINE: I don’t think that I could have moved to amend the pleadings, because I
had settled out with these Fabre defendants. I couldn’t have amended my
pleadings at that time, your Honor.
LEVINE: I don’t think that I could have moved to amend the pleadings, because I
had settled out with these Fabre defendants. I couldn’t have amended my
pleadings at that time, your Honor.
THE
COURT: Okay.
COURT: Okay.
MS.
LEVINE: So — and I know you’re referring to the — to the Hartong
decision, but I think it’s totally — you could definitely distinguish that.
LEVINE: So — and I know you’re referring to the — to the Hartong
decision, but I think it’s totally — you could definitely distinguish that.
THE
COURT: Because, to be —
COURT: Because, to be —
MS.
LEVINE: I couldn’t —
LEVINE: I couldn’t —
THE
COURT: — to be frank, that’s what I was waiting for you to do. And I couldn’t
say, do that, obviously, just as I can’t help the other side out either, but
COURT: — to be frank, that’s what I was waiting for you to do. And I couldn’t
say, do that, obviously, just as I can’t help the other side out either, but
MS.
LEVINE: I understand.
LEVINE: I understand.
THE
COURT: since we are past that point, rhetorically, that’s why I’m asking the
question —
COURT: since we are past that point, rhetorically, that’s why I’m asking the
question —
MS.
LEVINE: Right.
LEVINE: Right.
THE
COURT: because I was anticipating that being your next request, and it —
COURT: because I was anticipating that being your next request, and it —
MS.
LEVINE: Well, it —
LEVINE: Well, it —
THE
COURT: — hadn’t been made.
COURT: — hadn’t been made.
MS.
LEVINE: — really caught me totally off guard.
LEVINE: — really caught me totally off guard.
THE
COURT: And I know it did.
COURT: And I know it did.
Dr. Rosen argued and the trial court agreed that Edwards
should have moved to amend the pleadings to add the Fabre defendants
back onto the verdict form. However, the trial court expressed concern over the
situation:
should have moved to amend the pleadings to add the Fabre defendants
back onto the verdict form. However, the trial court expressed concern over the
situation:
It
— it troubled me for both sides. And to use Ms. Levine’s words, she was rather
shellshocked, and she, to use her words, had egg on her face from her perspective.
And I, frankly, and in all due candor, was shocked that it was withdrawn as
well. I mean, it — it put me in a bit of a pickle, too, insofar as I — I felt
in kind of a quandary, too. And I don’t take sides in any given case. It’s
immaterial to me who . . . . wins or loses. It doesn’t matter to me, other than
I want a fair trial in any given case that I do.
— it troubled me for both sides. And to use Ms. Levine’s words, she was rather
shellshocked, and she, to use her words, had egg on her face from her perspective.
And I, frankly, and in all due candor, was shocked that it was withdrawn as
well. I mean, it — it put me in a bit of a pickle, too, insofar as I — I felt
in kind of a quandary, too. And I don’t take sides in any given case. It’s
immaterial to me who . . . . wins or loses. It doesn’t matter to me, other than
I want a fair trial in any given case that I do.
The court denied the motions, stating:
Having
reviewed the materials provided, as well as again my own notes, the case law
provided to me, as well as that as I encountered on my own, I don’t believe,
respectfully, there’s a basis upon which I can set aside the jury’s verdict,
nor are there grounds to grant either the original or amended version of the
request for a new trial.
reviewed the materials provided, as well as again my own notes, the case law
provided to me, as well as that as I encountered on my own, I don’t believe,
respectfully, there’s a basis upon which I can set aside the jury’s verdict,
nor are there grounds to grant either the original or amended version of the
request for a new trial.
So, respectfully, I will deny that.
II. Analysis
The trial court abused its discretion in denying Edwards’
motion for a new trial.3 Trial courts have “broad discretion
in considering a motion for new trial.” Nor-Tech Powerboats, Inc. v.
H.P.B.C., Inc., 855 So. 2d 103, 105 (Fla. 2d DCA 2003). A new trial should
be granted “where the trial judge felt that substantial justice was not
accomplished by the jury’s verdict.” Bowe v. Butler, 133 So. 2d 347, 354
(Fla. 2d DCA 1961). It is true that “[m]ere disagreement with the verdict of a
jury is not sufficient warrant for a new trial.” Lopez v. Cohen, 406 So.
2d 1253, 1256 (Fla. 4th DCA 1981). But “Florida Rule of Civil Procedure
1.530(a) enables a trial court to evaluate matters that it did not consider
prior to judgment, and to correct any error if the trial court becomes
convinced that it has erred.” Byrne v. Byrne, 128 So. 3d 2, 7 (Fla. 3d
DCA 2012).
motion for a new trial.3 Trial courts have “broad discretion
in considering a motion for new trial.” Nor-Tech Powerboats, Inc. v.
H.P.B.C., Inc., 855 So. 2d 103, 105 (Fla. 2d DCA 2003). A new trial should
be granted “where the trial judge felt that substantial justice was not
accomplished by the jury’s verdict.” Bowe v. Butler, 133 So. 2d 347, 354
(Fla. 2d DCA 1961). It is true that “[m]ere disagreement with the verdict of a
jury is not sufficient warrant for a new trial.” Lopez v. Cohen, 406 So.
2d 1253, 1256 (Fla. 4th DCA 1981). But “Florida Rule of Civil Procedure
1.530(a) enables a trial court to evaluate matters that it did not consider
prior to judgment, and to correct any error if the trial court becomes
convinced that it has erred.” Byrne v. Byrne, 128 So. 3d 2, 7 (Fla. 3d
DCA 2012).
“The showing necessary to overturn the denial of a motion
for new trial is not as great as that necessary to overturn an order granting
such a motion.” Manhardt v. Tamton, 832 So. 2d 129, 131 (Fla. 2d DCA
2002). A trial court should grant a motion for new trial when “the jury has
been deceived as to the force and credibility of the evidence or has been
influenced by considerations outside the record.” Id. (quoting Brown
v. Estate of Stuckey, 749 So. 2d 490, 497 (Fla. 1999)). “Under those
circumstances, ‘[t]he trial judge’s discretion permits the grant of a new trial
although it is not clear, obvious, and indisputable that the jury was wrong.’ ”
Id. (quoting Brown, 749 So. 2d at 497). In reviewing an order on
a motion for a new trial, an appellate court should consider the totality of
all errors and improprieties. Id. at 132-33.
for new trial is not as great as that necessary to overturn an order granting
such a motion.” Manhardt v. Tamton, 832 So. 2d 129, 131 (Fla. 2d DCA
2002). A trial court should grant a motion for new trial when “the jury has
been deceived as to the force and credibility of the evidence or has been
influenced by considerations outside the record.” Id. (quoting Brown
v. Estate of Stuckey, 749 So. 2d 490, 497 (Fla. 1999)). “Under those
circumstances, ‘[t]he trial judge’s discretion permits the grant of a new trial
although it is not clear, obvious, and indisputable that the jury was wrong.’ ”
Id. (quoting Brown, 749 So. 2d at 497). In reviewing an order on
a motion for a new trial, an appellate court should consider the totality of
all errors and improprieties. Id. at 132-33.
Considering the totality of the errors and improprieties in
this case, we hold that a new trial is warranted. The specific sequence of
events that transpired — the belated amendment of the Fabre defense,
the last minute withdrawal of the defense, and the trial court’s failure to
give a curative instruction to the jury — generated prejudice that Edwards’
counsel could not cure. This sequence of events culminated in a situation in which
the plaintiffs presented their case premised on the fact that the jury would
apportion fault between Dr. Rosen and the Fabre defendants, only to have
the jury instead decide the case on an all-or-nothing basis.4
this case, we hold that a new trial is warranted. The specific sequence of
events that transpired — the belated amendment of the Fabre defense,
the last minute withdrawal of the defense, and the trial court’s failure to
give a curative instruction to the jury — generated prejudice that Edwards’
counsel could not cure. This sequence of events culminated in a situation in which
the plaintiffs presented their case premised on the fact that the jury would
apportion fault between Dr. Rosen and the Fabre defendants, only to have
the jury instead decide the case on an all-or-nothing basis.4
Courts have addressed a tactic similar to the one employed
by Dr. Rosen in the context of contributory negligence. In those cases,
defendants raised the affirmative defense of comparative negligence only to
withdraw it after some evidence of the plaintiff’s negligence was admitted. In Hartong
v. Bernhart, 128 So. 3d 858, 860 (Fla. 5th DCA 2013), the plaintiff filed a
complaint alleging that the defendants’ negligence caused the wrongful death of
his twenty-one-year-old daughter. The plaintiff did not plead comparative
negligence. Rather, the defendants raised the daughter’s negligence as an
affirmative defense. The defendants asserted in opening statements that the
presence of alcohol and hydrocodone in the daughter’s system caused
complications and, at least partially, caused her death. Id. The
defendants then put on evidence to support these allegations, but withdrew
their affirmative defense after resting. Id. The plaintiff then moved
under Florida Rules of Civil Procedure 1.190(b) and (e) to amend the complaint
to conform to the evidence presented at trial to obtain a jury instruction on
comparative negligence, but the trial court denied the request. Id. The
Fifth District held that trial court abused its discretion in doing so. Id.
at 861-62. The court noted that this tactic “created a ‘take it or leave it’
situation similar to contributory negligence, which is contrary to Florida law
and public policy.” Id. at 861. The court reasoned that after the
defendants had waived comparative negligence, the plaintiff was not entitled to
a corresponding jury instruction. Id. at 862. Therefore, the plaintiff’s
only option to obtain the jury instruction was to amend the complaint. Id.
by Dr. Rosen in the context of contributory negligence. In those cases,
defendants raised the affirmative defense of comparative negligence only to
withdraw it after some evidence of the plaintiff’s negligence was admitted. In Hartong
v. Bernhart, 128 So. 3d 858, 860 (Fla. 5th DCA 2013), the plaintiff filed a
complaint alleging that the defendants’ negligence caused the wrongful death of
his twenty-one-year-old daughter. The plaintiff did not plead comparative
negligence. Rather, the defendants raised the daughter’s negligence as an
affirmative defense. The defendants asserted in opening statements that the
presence of alcohol and hydrocodone in the daughter’s system caused
complications and, at least partially, caused her death. Id. The
defendants then put on evidence to support these allegations, but withdrew
their affirmative defense after resting. Id. The plaintiff then moved
under Florida Rules of Civil Procedure 1.190(b) and (e) to amend the complaint
to conform to the evidence presented at trial to obtain a jury instruction on
comparative negligence, but the trial court denied the request. Id. The
Fifth District held that trial court abused its discretion in doing so. Id.
at 861-62. The court noted that this tactic “created a ‘take it or leave it’
situation similar to contributory negligence, which is contrary to Florida law
and public policy.” Id. at 861. The court reasoned that after the
defendants had waived comparative negligence, the plaintiff was not entitled to
a corresponding jury instruction. Id. at 862. Therefore, the plaintiff’s
only option to obtain the jury instruction was to amend the complaint. Id.
Similarly, in Philip Morris USA, Inc. v. Arnitz, 933
So. 2d 693 (Fla. 2d DCA 2006), the plaintiff filed a complaint alleging strict
liability for defects in the defendant’s cigarette design. In his complaint,
the plaintiff admitted that he shared comparative fault with the defendant
cigarette manufacturer and sought an apportionment of damages. Id. at
695. The defendant filed a notice that it was withdrawing its affirmative
defense of comparative fault and later filed a motion to strike the plaintiff’s
reference to comparative fault in the pleadings. Id. The trial court
denied the motion, and the defendant appealed arguing that a plaintiff cannot
inject comparative fault because it is strictly an affirmative defense that
only a defendant may raise. Id. at 696-97. This court affirmed the trial
court’s ruling, reasoning that “[t]he fact that comparative negligence may be
raised as an affirmative defense does not mean that a defendant can determine
how a plaintiff shapes his theory of the case.” Id. at 697. This court
further opined that “a defendant should not be able to control the plaintiff’s
theory of his case and preclude the plaintiff from accepting some
responsibility for his injuries.” Id. at 698.
So. 2d 693 (Fla. 2d DCA 2006), the plaintiff filed a complaint alleging strict
liability for defects in the defendant’s cigarette design. In his complaint,
the plaintiff admitted that he shared comparative fault with the defendant
cigarette manufacturer and sought an apportionment of damages. Id. at
695. The defendant filed a notice that it was withdrawing its affirmative
defense of comparative fault and later filed a motion to strike the plaintiff’s
reference to comparative fault in the pleadings. Id. The trial court
denied the motion, and the defendant appealed arguing that a plaintiff cannot
inject comparative fault because it is strictly an affirmative defense that
only a defendant may raise. Id. at 696-97. This court affirmed the trial
court’s ruling, reasoning that “[t]he fact that comparative negligence may be
raised as an affirmative defense does not mean that a defendant can determine
how a plaintiff shapes his theory of the case.” Id. at 697. This court
further opined that “a defendant should not be able to control the plaintiff’s
theory of his case and preclude the plaintiff from accepting some
responsibility for his injuries.” Id. at 698.
What distinguishes this case from Hartong and Arntiz
is that amending the complaint to add the Fabre defendants back on the
verdict from was not an option available to Edwards. While Dr. Rosen contends
that Edwards could have amended the pleadings to keep the Fabre
defendants on the verdict form, he has failed to provide, and we have been
unable to locate, any authority standing for the proposition that a plaintiff
can amend their complaint to add nonparty defendants to a verdict form after
they have been settled with or otherwise dismissed from the case. We note that
the trial court was also operating under the erroneous assumption that Edwards
would have been able to amend the pleadings. See Van v. Schmidt,
122 So. 3d 243, 258 (Fla. 2013) (“[A] trial court’s conclusions of law in an
order granting a new trial are not entitled to deference because the trial
court’s superior vantage point is not implicated.”).
is that amending the complaint to add the Fabre defendants back on the
verdict from was not an option available to Edwards. While Dr. Rosen contends
that Edwards could have amended the pleadings to keep the Fabre
defendants on the verdict form, he has failed to provide, and we have been
unable to locate, any authority standing for the proposition that a plaintiff
can amend their complaint to add nonparty defendants to a verdict form after
they have been settled with or otherwise dismissed from the case. We note that
the trial court was also operating under the erroneous assumption that Edwards
would have been able to amend the pleadings. See Van v. Schmidt,
122 So. 3d 243, 258 (Fla. 2013) (“[A] trial court’s conclusions of law in an
order granting a new trial are not entitled to deference because the trial
court’s superior vantage point is not implicated.”).
Plaintiffs are permitted to concede their own comparative
fault and obtain the relative instruction even when the defendant does not
raise the issue as an affirmative defense. Arnitz, 933 So. 2d at 698; Hartong,
128 So. 3d at 861. In contrast, in order to include a nonparty on the verdict
form under Fabre, a defendant must plead the negligence of the nonparty
as an affirmative defense and specifically identify the nonparty. See Nash
v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262, 1264 (Fla. 1996).
This notice is required prior to trial because the Fabre defense “may
affect both the presentation of the case and the trial court’s ruling on
evidentiary issues.” Id.
fault and obtain the relative instruction even when the defendant does not
raise the issue as an affirmative defense. Arnitz, 933 So. 2d at 698; Hartong,
128 So. 3d at 861. In contrast, in order to include a nonparty on the verdict
form under Fabre, a defendant must plead the negligence of the nonparty
as an affirmative defense and specifically identify the nonparty. See Nash
v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262, 1264 (Fla. 1996).
This notice is required prior to trial because the Fabre defense “may
affect both the presentation of the case and the trial court’s ruling on
evidentiary issues.” Id.
We recognize that a defendant may waive any defense. See
Bryant v. Fiadini, 405 So. 2d 1341, 1343 (Fla. 3d DCA 1981). However,
such a right is not carte blanche to engage in gamesmanship or abuse procedure.
From our review of the record, it is apparent that Dr. Rosen’s trial counsel
engaged in conduct designed to acquire the benefit of the Fabre defense,
i.e., having evidence of the negligence of others introduced at trial, without
the cost of having fault apportioned between the Fabre defendants and
himself. This gamesmanship was an attempt by Dr. Rosen’s counsel to exert
control over Edwards’ presentation of the case. Cf. Arnitz, 933
So. 2d at 698 (“[I]f a plaintiff chooses to plead his own comparative fault, a
defendant should not be able to control the plaintiff’s theory of his case and
preclude the plaintiff from accepting some responsibility for his injuries.”).
More importantly, raising an affirmative defense only to withdraw it in an
attempt to muddle the plaintiff’s presentation of the case undermines the
truth-seeking purpose of a trial.
Bryant v. Fiadini, 405 So. 2d 1341, 1343 (Fla. 3d DCA 1981). However,
such a right is not carte blanche to engage in gamesmanship or abuse procedure.
From our review of the record, it is apparent that Dr. Rosen’s trial counsel
engaged in conduct designed to acquire the benefit of the Fabre defense,
i.e., having evidence of the negligence of others introduced at trial, without
the cost of having fault apportioned between the Fabre defendants and
himself. This gamesmanship was an attempt by Dr. Rosen’s counsel to exert
control over Edwards’ presentation of the case. Cf. Arnitz, 933
So. 2d at 698 (“[I]f a plaintiff chooses to plead his own comparative fault, a
defendant should not be able to control the plaintiff’s theory of his case and
preclude the plaintiff from accepting some responsibility for his injuries.”).
More importantly, raising an affirmative defense only to withdraw it in an
attempt to muddle the plaintiff’s presentation of the case undermines the
truth-seeking purpose of a trial.
We do not hold that defendants may not waive or withdraw a
defense, but we caution that engaging in the procedural maneuvering utilized by
Dr. Rosen’s trial counsel risks a new trial. For the foregoing reasons, we
reverse the final judgment and remand for a new trial.
defense, but we caution that engaging in the procedural maneuvering utilized by
Dr. Rosen’s trial counsel risks a new trial. For the foregoing reasons, we
reverse the final judgment and remand for a new trial.
Reversed and remanded for a new trial. (CASANUEVA, J.,
Concurs. WALLACE, J., Dissents with opinion.)
Concurs. WALLACE, J., Dissents with opinion.)
__________________
(WALLACE, Judge, dissenting.) I respectfully dissent.
Speaking generally, it is apparent that procedural maneuvering of the sort
pursued by the defense in this case — the addition of one or more Fabre
defendants on the eve of trial and the withdrawal of the Fabre defense
just before the submission of the case to the jury — could be calculated to
sow confusion among jurors and to unfairly disadvantage a plaintiff in the
presentation of his or her case.5 However, a review of the record in
this case convinces me that the trial judge could have reasonably concluded
that Edwards was not placed at an unfair disadvantage in the presentation of
his case as a result of the “gamesmanship” criticized by the majority. An
explanation of this point requires a brief statement of the pertinent facts and
the theory underlying Edwards’ claim against Dr. Rosen for alleged medical
malpractice.
Speaking generally, it is apparent that procedural maneuvering of the sort
pursued by the defense in this case — the addition of one or more Fabre
defendants on the eve of trial and the withdrawal of the Fabre defense
just before the submission of the case to the jury — could be calculated to
sow confusion among jurors and to unfairly disadvantage a plaintiff in the
presentation of his or her case.5 However, a review of the record in
this case convinces me that the trial judge could have reasonably concluded
that Edwards was not placed at an unfair disadvantage in the presentation of
his case as a result of the “gamesmanship” criticized by the majority. An
explanation of this point requires a brief statement of the pertinent facts and
the theory underlying Edwards’ claim against Dr. Rosen for alleged medical
malpractice.
Mrs. Edwards was hospitalized for a pulmonary embolism.
During her hospitalization, Dr. Faruque, a hospitalist, was the primary manager
of Mrs. Edwards’ care and treatment. Dr. Faruque placed Mrs. Edwards on a
low-dose regimen of heparin, an anti-coagulant. To assist her in managing Mrs.
Edwards’ care, Dr. Faruque called in a number of specialists. These specialists
included, but were not limited to, the following doctors: Dr. Juda, a critical
care physician; Dr. Scott, an intensivist; and Dr. Rosen, a cardiologist. Mrs.
Edwards did not recover, and she died in the hospital as a result of the
pulmonary embolism. When she died, Mrs. Edwards was only forty years old.
During her hospitalization, Dr. Faruque, a hospitalist, was the primary manager
of Mrs. Edwards’ care and treatment. Dr. Faruque placed Mrs. Edwards on a
low-dose regimen of heparin, an anti-coagulant. To assist her in managing Mrs.
Edwards’ care, Dr. Faruque called in a number of specialists. These specialists
included, but were not limited to, the following doctors: Dr. Juda, a critical
care physician; Dr. Scott, an intensivist; and Dr. Rosen, a cardiologist. Mrs.
Edwards did not recover, and she died in the hospital as a result of the
pulmonary embolism. When she died, Mrs. Edwards was only forty years old.
According to Edwards and his expert witnesses, the heparin
dosage that Dr. Faruque had ordered for Mrs. Edwards was too low to be
therapeutic. Edwards maintained that the other doctors called in by Dr. Faruque
to assist her were aware that the treatment plan for Mrs. Edwards was
inadequate, but none of them informed Dr. Faruque of this or suggested
alternative treatments that would have been effective. Dr. Faruque relied on
Dr. Rosen for a cardiac consultation regarding Mrs. Edwards. Edwards’ claim
against Dr. Rosen was based on the theory that he knew or should have known
that Dr. Faruque’s treatment plan was inadequate and ineffective, but he failed
to communicate this to Dr. Faruque and the other doctors and to recommend
alternative treatments that would have been effective. Edwards maintained that
Dr. Rosen’s involvement with Mrs. Edwards’ treatment breached the applicable
standard of care. Edwards had made similar claims against the other specialists
involved in Mrs. Edwards’ care. Thus a claim that Dr. Faruque and the other
doctors were negligent in connection with the care and treatment of Mrs.
Edwards was inseparable from Edwards’ claim against Dr. Rosen. Indeed, before
the amendment involving Dr. Scott and Dr. Juda made on the eve of trial, Dr.
Rosen had already raised a Fabre defense naming Dr. Faruque.
dosage that Dr. Faruque had ordered for Mrs. Edwards was too low to be
therapeutic. Edwards maintained that the other doctors called in by Dr. Faruque
to assist her were aware that the treatment plan for Mrs. Edwards was
inadequate, but none of them informed Dr. Faruque of this or suggested
alternative treatments that would have been effective. Dr. Faruque relied on
Dr. Rosen for a cardiac consultation regarding Mrs. Edwards. Edwards’ claim
against Dr. Rosen was based on the theory that he knew or should have known
that Dr. Faruque’s treatment plan was inadequate and ineffective, but he failed
to communicate this to Dr. Faruque and the other doctors and to recommend
alternative treatments that would have been effective. Edwards maintained that
Dr. Rosen’s involvement with Mrs. Edwards’ treatment breached the applicable
standard of care. Edwards had made similar claims against the other specialists
involved in Mrs. Edwards’ care. Thus a claim that Dr. Faruque and the other
doctors were negligent in connection with the care and treatment of Mrs.
Edwards was inseparable from Edwards’ claim against Dr. Rosen. Indeed, before
the amendment involving Dr. Scott and Dr. Juda made on the eve of trial, Dr.
Rosen had already raised a Fabre defense naming Dr. Faruque.
As the majority notes, Edwards claimed “that he would have
presented his case differently if Dr. Rosen was not going to place the Fabre
defendants [Dr. Scott and Dr. Juda] on the verdict form.” However, Edwards’
theory of the case against Dr. Rosen remained consistent throughout the
pretrial proceedings and the trial. For example, in her opening statement at
trial, Edwards’ counsel told the jury that Dr. Rosen
presented his case differently if Dr. Rosen was not going to place the Fabre
defendants [Dr. Scott and Dr. Juda] on the verdict form.” However, Edwards’
theory of the case against Dr. Rosen remained consistent throughout the
pretrial proceedings and the trial. For example, in her opening statement at
trial, Edwards’ counsel told the jury that Dr. Rosen
needed
to make a recommendation for either an IVC filter or full-dose heparin. Dr.
Rosen should have followed up with this patient the next day. He sees her on
March 14th and never sees her again. He should have seen her on March 15th and,
again, communicated with Dr. Faruque, Dr. Scott[,] and Dr. Juda. . . .
to make a recommendation for either an IVC filter or full-dose heparin. Dr.
Rosen should have followed up with this patient the next day. He sees her on
March 14th and never sees her again. He should have seen her on March 15th and,
again, communicated with Dr. Faruque, Dr. Scott[,] and Dr. Juda. . . .
In her closing remarks to the jury, after the last-minute
withdrawal of the Fabre defense, Edwards’ counsel made a similar
argument supporting a breach of the standard of care by Dr. Rosen based on his
failure to call to the attention of Dr. Faruque and the other doctors involved
with Mrs. Edwards’ care the inadequacy of the treatment plan:
withdrawal of the Fabre defense, Edwards’ counsel made a similar
argument supporting a breach of the standard of care by Dr. Rosen based on his
failure to call to the attention of Dr. Faruque and the other doctors involved
with Mrs. Edwards’ care the inadequacy of the treatment plan:
Who
on March 14 was in the best position to have these treatment option discussions
with Dr. Faruque and Dr. Juda? It was Dr. Rosen. We know that she was receiving
on March 14, 2008[,] low-dose heparin. And we heard testimony that Dr. [Richard
Alexander Matthay] and Dr. [J. Michael] Gaziano criticized that method of
treatment. It wasn’t enough. It wasn’t getting the PTT [partial thromboplastin
time] therapeutic, meaning that the heparin wasn’t being effective for Mary
Edwards.
on March 14 was in the best position to have these treatment option discussions
with Dr. Faruque and Dr. Juda? It was Dr. Rosen. We know that she was receiving
on March 14, 2008[,] low-dose heparin. And we heard testimony that Dr. [Richard
Alexander Matthay] and Dr. [J. Michael] Gaziano criticized that method of
treatment. It wasn’t enough. It wasn’t getting the PTT [partial thromboplastin
time] therapeutic, meaning that the heparin wasn’t being effective for Mary
Edwards.
In support of the claim against Dr. Rosen for his omission
to correct the alleged failures by the other members of the team of physicians
involved with the care and treatment of Mrs. Edwards, the argument made by
Edwards’ counsel focused on Dr. Rosen’s alleged failure to communicate to the
other members of the team treating Mrs. Edwards the inadequacy of the treatment
plan being followed and the necessity to pursue other options to save Mrs.
Edwards’ life:
to correct the alleged failures by the other members of the team of physicians
involved with the care and treatment of Mrs. Edwards, the argument made by
Edwards’ counsel focused on Dr. Rosen’s alleged failure to communicate to the
other members of the team treating Mrs. Edwards the inadequacy of the treatment
plan being followed and the necessity to pursue other options to save Mrs.
Edwards’ life:
What
would it have taken for Dr. Rosen to have these conversations [with the other
doctors]? All he had to do was either pick up the phone, find Dr. Faruque in
the hospital, find Dr. Juda in the ICU, or if you can’t, then document it on
the echocardiogram report, document it in the consult note. . . . Tell them,
“Hey listen, we’ve got a serious situation. We’ve got to consider these
treatment options and list them out”, because Dr. Rosen was familiar with all
of those treatment options. . . . [I]t’s incumbent on the cardiologist
according to my experts to be actively engaged in the suggestion with Dr.
Faruque and Dr. Juda as to what to do to save Mary Edwards. . . . [Dr. Rosen]
was in the best position to say something to Dr. Faruque and Dr. Juda. . . .
Either discuss changing the heparin, which according to the plaintiff’s experts
more likely than not would have saved her life, or if not place an IVC filter,
which more likely than not would have saved Mary Edwards’ life according to
plaintiff’s expert.
would it have taken for Dr. Rosen to have these conversations [with the other
doctors]? All he had to do was either pick up the phone, find Dr. Faruque in
the hospital, find Dr. Juda in the ICU, or if you can’t, then document it on
the echocardiogram report, document it in the consult note. . . . Tell them,
“Hey listen, we’ve got a serious situation. We’ve got to consider these
treatment options and list them out”, because Dr. Rosen was familiar with all
of those treatment options. . . . [I]t’s incumbent on the cardiologist
according to my experts to be actively engaged in the suggestion with Dr.
Faruque and Dr. Juda as to what to do to save Mary Edwards. . . . [Dr. Rosen]
was in the best position to say something to Dr. Faruque and Dr. Juda. . . .
Either discuss changing the heparin, which according to the plaintiff’s experts
more likely than not would have saved her life, or if not place an IVC filter,
which more likely than not would have saved Mary Edwards’ life according to
plaintiff’s expert.
In light of these facts, I disagree with the majority’s
claim that “Edwards presented evidence that all of the treating physicians were
negligent in their treatment of Mrs. Edwards in reliance on the fact
that Dr. Rosen had pleaded the affirmative defense that the other doctors were
negligent.” (Emphasis added.) Edwards’ claim of such “reliance” is not
supported by his theory of the case. Dr. Rosen could not have breached the
applicable standard of care if the low-dose heparin regime ordered by Dr.
Faruque and approved by Dr. Scott and Dr. Juda was adequate and effective. To
establish his claim against Dr. Rosen, Edwards was required to prove that the
other doctors had also breached the applicable standard of care.
claim that “Edwards presented evidence that all of the treating physicians were
negligent in their treatment of Mrs. Edwards in reliance on the fact
that Dr. Rosen had pleaded the affirmative defense that the other doctors were
negligent.” (Emphasis added.) Edwards’ claim of such “reliance” is not
supported by his theory of the case. Dr. Rosen could not have breached the
applicable standard of care if the low-dose heparin regime ordered by Dr.
Faruque and approved by Dr. Scott and Dr. Juda was adequate and effective. To
establish his claim against Dr. Rosen, Edwards was required to prove that the
other doctors had also breached the applicable standard of care.
For this reason, the trial judge could have rejected as
unpersuasive Edwards’ claim that the addition to the case of Dr. Scott and Dr.
Juda as Fabre defendants on the eve of trial and the subsequent
withdrawal of the Fabre defense put him at an unfair disadvantage in the
presentation of his case. We should also bear in mind that this case involved a
complex claim of medical malpractice with multiple dueling experts in a trial
that lasted for six days. The trial judge was in a much better position than we
are to determine the impact on the jury of Dr. Rosen’s asserted “gamesmanship”
and the extent, if any, to which Edwards was unfairly prejudiced in the
presentation of his case. See Cloud v. Fallis, 110 So. 2d 669,
673 (Fla. 1959). Because I cannot say that no reasonable judge would have
reached the conclusion that Edwards received a fair trial despite Dr. Rosen’s
procedural maneuvering, I would affirm. “The appellate court should apply the
reasonableness test to determine whether the trial judge abused his discretion,
to wit, ‘discretion is abused only where no reasonable [person] would take the
view adopted by the trial court.’ ” Allstate Ins. Co. v. Manasse, 707
So. 2d 1110, 1111 (Fla. 1998) (quoting Huff v. State, 569 So. 2d 1247,
1249 (Fla. 1990)).
unpersuasive Edwards’ claim that the addition to the case of Dr. Scott and Dr.
Juda as Fabre defendants on the eve of trial and the subsequent
withdrawal of the Fabre defense put him at an unfair disadvantage in the
presentation of his case. We should also bear in mind that this case involved a
complex claim of medical malpractice with multiple dueling experts in a trial
that lasted for six days. The trial judge was in a much better position than we
are to determine the impact on the jury of Dr. Rosen’s asserted “gamesmanship”
and the extent, if any, to which Edwards was unfairly prejudiced in the
presentation of his case. See Cloud v. Fallis, 110 So. 2d 669,
673 (Fla. 1959). Because I cannot say that no reasonable judge would have
reached the conclusion that Edwards received a fair trial despite Dr. Rosen’s
procedural maneuvering, I would affirm. “The appellate court should apply the
reasonableness test to determine whether the trial judge abused his discretion,
to wit, ‘discretion is abused only where no reasonable [person] would take the
view adopted by the trial court.’ ” Allstate Ins. Co. v. Manasse, 707
So. 2d 1110, 1111 (Fla. 1998) (quoting Huff v. State, 569 So. 2d 1247,
1249 (Fla. 1990)).
__________________
1Dr. Scott and Dr. Juda were immune
from personal liability since they were employed by Lee Memorial Health
Systems. See § 768.28(9)(a), Fla. Stat. (2007).
from personal liability since they were employed by Lee Memorial Health
Systems. See § 768.28(9)(a), Fla. Stat. (2007).
2Fabre v. Marin,
623 So. 2d 1182 (Fla. 1993), receded from on other grounds by Wells
v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So. 2d 249, 254 (Fla.
1995).
623 So. 2d 1182 (Fla. 1993), receded from on other grounds by Wells
v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So. 2d 249, 254 (Fla.
1995).
3The dissent argues “the trial judge
could have rejected as unpersuasive Edwards’ claim that the addition to the case
of Dr. Scott and Juda as Fabre defendants on the eve of trial and the
subsequent withdrawal of the Fabre defense put him at an unfair
disadvantage in the presentation of his case.” We emphasize that the trial
court was operating under the misunderstanding that Edwards could have amended
his pleadings to put Fabre defendants back on the verdict form. Cf.
Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.
1979) (“[A] misconception by the trial judge of a controlling principle of law
can constitute grounds for reversal.”).
could have rejected as unpersuasive Edwards’ claim that the addition to the case
of Dr. Scott and Juda as Fabre defendants on the eve of trial and the
subsequent withdrawal of the Fabre defense put him at an unfair
disadvantage in the presentation of his case.” We emphasize that the trial
court was operating under the misunderstanding that Edwards could have amended
his pleadings to put Fabre defendants back on the verdict form. Cf.
Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.
1979) (“[A] misconception by the trial judge of a controlling principle of law
can constitute grounds for reversal.”).
4Although the actual juror question
is not in the record before this court, Edwards’ motion for a new trial notes
that a juror asked “who’s being sued here,” indicating that the jury may have
been confused.
is not in the record before this court, Edwards’ motion for a new trial notes
that a juror asked “who’s being sued here,” indicating that the jury may have
been confused.
5Cf. D’Angelo
v. Fitzmaurice, 863 So. 2d 311, 312 n.2 (Fla. 2003) (noting that the
defendant’s withdrawal of a Fabre defense “was a strategic decision”).
To the extent that defendants are employing machinations of this sort in the
Florida courts to abuse the jury trial process, it might be appropriate to
adopt an amendment to the civil rules that would prohibit a defendant from
withdrawing a Fabre defense without the consent of all parties once a
jury is sworn to try the case. Absent such a procedural innovation, the trial
courts of this state are best equipped to address any such problem through the
entry of detailed pretrial orders and the strict enforcement of them
thereafter.
v. Fitzmaurice, 863 So. 2d 311, 312 n.2 (Fla. 2003) (noting that the
defendant’s withdrawal of a Fabre defense “was a strategic decision”).
To the extent that defendants are employing machinations of this sort in the
Florida courts to abuse the jury trial process, it might be appropriate to
adopt an amendment to the civil rules that would prohibit a defendant from
withdrawing a Fabre defense without the consent of all parties once a
jury is sworn to try the case. Absent such a procedural innovation, the trial
courts of this state are best equipped to address any such problem through the
entry of detailed pretrial orders and the strict enforcement of them
thereafter.
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