Howard v. Palmer
123 So. 3d 1171
Fla. Dist. Ct. App.2013Background
- Plaintiff sued for negligence and vicarious liability after Palmer, an employee of Groupware International, ran a stop sign and collided with plaintiff.
- Before trial, plaintiff moved in limine to preclude evidence that he contacted an attorney on the day of the accident, seeking to challenge permanent injury.
- The trial court granted the motion in limine based on Watson v. Builders Square, Inc., and the defense later violated the order during cross-examination.
- During trial, defense counsel denied the imposition of a motion in limine and questioned treating doctors about attorney involvement, prompting objections and a curative instruction from the court.
- After a verdict favoring defendant, plaintiff moved for a new trial arguing the in limine violation and other improper statements prejudiced the jury; the trial court denied.
- The appellate court reversed and remanded for a new trial, finding the combined prejudicial effect of the violation and other errors was not harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did defense violation of the in limine order require a new trial? | Violation prejudiced plaintiff and denied fair trial. | Violation was curable and not prejudicial. | Yes; violation required a new trial. |
| Were the other improper statements by defense counsel considered cumulatively to require relief? | Cumulative improper remarks plus the violation prejudiced the jury. | Only isolated objections; no reversible error. | Yes; cumulative impact contributed to reversal. |
| Should unpreserved errors be considered for harmless error analysis? | Unpreserved errors can be considered when reviewing preserved errors. | Unpreserved errors should not overturn the verdict. | They are considered in the aggregate to assess prejudice. |
| Was the court's curative instruction sufficient to cure the error? | Curative instruction failed to restore fairness. | Curative instruction adequate; mistrial unnecessary. | Curative instruction insufficient; new trial warranted. |
Key Cases Cited
- Watson v. Builders Square, Inc., 563 So.2d 721 (Fla. 4th DCA 1990) (evidence of attorney contact within days of accident inadmissible)
- Azriel v. La Marca, 722 So.2d 952 (Fla. 3d DCA 1998) (prejudicial admission of motion-order violations warrants new trial)
- Bocher v. Glass, 874 So.2d 701 (Fla. 1st DCA 2004) (juror prejudice required to avoid trial; integrity of process)
- Special v. Baux, 79 So.3d 755 (Fla. 4th DCA 2011) (burden to show more likely than not error did not influence verdict)
- Grau v. Branham, 761 So.2d 375 (Fla. 4th DCA 2000) (preservation and harmless-error principles guiding reversible error review)
- Linic v. State, 80 So.3d 382 (Fla. 4th DCA 2012) (unpreserved error considered with preserved error for harmlessness review)
- Katzman v. Re-diron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011) (impeachment of medical witnesses via doctors’ records related to litigation)