Spalding v. ZATZ
2011 Fla. App. LEXIS 13898
Fla. Dist. Ct. App.2011Background
- Mrs. Zatz had back pain in Sept 2002; cancerous intra-scapular tumor removed; cancer later metastasized to lungs and she died Dec 2005.
- Plaintiff, as personal representative, sued Dr. Spalding and Melbourne Internal Medicine for medical malpractice alleging delay in MRI discovery.
- Defendants' experts, including Dr. Berlet, testified on timing of metastasis; Berlet's March 2003 lung findings became pivotal.
- Pretrial deposition: Berlet said he would not offer opinions on metastasis timing; defense elicited later opinions during a break.
- Plaintiff moved in limine to bar March/June 2003 radiology opinions as speculative; trial court denied the motion.
- At trial, Berlet testified to metastasis timing; Plaintiff did not object; defense experts and Plaintiff’s evidence contested the issue; after verdict, Plaintiff moved for a new trial claiming surprise testimony, which the trial court granted; appellate review centered on preservation and fundamental-error standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of objection to surprise testimony | Zatz | Spalding | Reversed; no fundamental error; not preserved for appeal |
| Whether the new-trial grant was justified by fundamental error | Zatz | Spalding | Reversed; no fundamental error; abuse of discretion to grant new trial |
| Whether the deposition-to-trial change in Berlet's testimony warrants new trial | Zatz | Spalding | Reversed; change was not fundamental error; grant reversed |
Key Cases Cited
- Cordoba v. Rodriguez, 939 So.2d 319 (Fla.4th DCA 2006) (fundamental-error standard for unpreserved trial error)
- Millar Elevator Serv. Co. v. McGowan, 819 So.2d 145 (Fla.2d DCA 2002) (unobjected surprise testimony reviewed for fundamental error; harm limited)
- Murphy v. Int'l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000) (unobjected issues may not rise to fundamental error)
- Companioni v. City of Tampa, 51 So.3d 452 (Fla.2010) (objection to attorney misconduct requires contemporaneous mistrial preservation)
- Haas v. Zaccaria, 659 So.2d 1130 (Fla.4th DCA 1995) (testimony on possibilities permissible where not fundamental error)
- Lowe Inv. Corp. v. Clemente, 685 So.2d 84 (Fla.2d DCA 1996) (objection required; cannot rely on later-new-trial relief)
- City of Orlando v. Birmingham, 539 So.2d 1133 (Fla.1989) (objective of contemporaneous objections to cure trial errors)