CASCANET v. Allen
2011 Fla. App. LEXIS 12644
Fla. Dist. Ct. App.2011Background
- Cascanet sued Keri Ann Allen and John Allen for injuries from a rear-end collision while Cascanet was stopped at a red light; John Allen was vicariously liable for Keri Ann's driving.
- Cascanet suffered two bulging discs with possible third; underwent extensive treatment including discography, injections, physical therapy, and eventually faced potential future surgery.
- Dr. Datta testified Cascanet likely will need surgery eventually; likelihood of future procedures and adjacent segment syndrome were discussed.
- Dr. Robinson conducted an IME, produced a report and later an addendum; the report linked Cascanet’s pain to the accident and suggested conservative treatment with possible future surgery, with a guarded prognosis.
- Before trial, defense agreed Dr. Robinson would not present opinions outside his written reports; at trial, Robinson testified to new theories (other causes of thigh pain and disc reabsorption) not in the reports, and closing arguments targeted the young defendant.
- Jury awarded Cascanet past medical bills and lost wages only; no future damages and no permanent injury found; Cascanet moved for new trial but was unsuccessful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new opinions by the IME were properly disclosed | Cascanet contends Robinson testified to new opinions not in the report. | Allen/defense asserts no violation given acknowledgment of report scope. | Reversed for improperly admitted new IME opinions not in the report. |
| Whether closing argument improperly swayed the jury | Cascanet argues closing remarks invited sympathy and shifted focus from evidence. | Allen/defense maintains argument was permissible to illustrate fairness and burden. | Reversed for improper closing argument that affected the verdict. |
| Overall effect of combined errors on the trial | Combined errors denied fair trial and affected damages award. | Defendants contend errors were inconsequential or not prejudicial. | Judgment reversed in part and remanded for a new trial. |
Key Cases Cited
- Suarez-Burgos v. Morhaim, 745 So. 2d 368 (Fla. 4th DCA 1999) (Rule 1.360(b) disclosure requirement and surprise assessment for undisclosed changes in opinion)
- Office Depot, Inc. v. Miller, 584 So. 2d 587 (Fla. 4th DCA 1991) (importance of complete expert reports; disclosure of major conclusions)
- Tetrault v. Fairchild, 799 So. 2d 226 (Fla. 5th DCA 2001) (implications of undisclosed expert opinions)
- Department of Health & Rehabilitative Servs. v. J.B., 675 So. 2d 241 (Fla. 4th DCA 1996) (application of disclosure and reliance on expert testimony)
- Samuels v. Torres, 29 So. 3d 1193 (Fla. 5th DCA 2010) (prohibition on currying jury sympathy in closing)
- Hollenbeck v. Hooks, 993 So. 2d 50 (Fla. 1st DCA 2008) (closing argument limits to avoid prejudice)
- State Farm Mut. Auto. Ins. Co. v. Revuelta, 901 So. 2d 377 (Fla. 3d DCA 2005) (limitation on inflammatory or prejudicial closing remarks)
- Padrino v. Resnick, 615 So. 2d 698 (Fla. 3d DCA 1992) (likelihood of prejudice from improper argument)
- Batlemento v. Dove Fountain, Inc., 593 So. 2d 234 (Fla. 5th DCA 1991) (limits on sympathy-based damages arguments)
- Suarez-Burgos, 745 So. 2d 368 (Fla. 4th DCA 1999) (duplicate listing to emphasize adverse effect of undisclosed opinions)