Wilbur v. HightowerWilbur v. Hightower
Nila WILBUR, M.D.; Gardens Radiology Associates, P.A.; Richard Sarner, M.D.; Derek P. Brock, M.D.; Derek P. Brock, M.D., P.A.; Jaime Zighelboim, M.D.; Mitchell S. Flaxman, M.D.; and Koerner, Taub & Flaxman, M.D., P.A., Appellants,
v.
Calvin HIGHTOWER, Personal Representative of the Estate of Barbara Hightower, Appellee.
District Court of Appeal of Florida, Fourth District.
*382 Marjorie Gadarian Graham of Marjorie Gаdarian Graham, P.A., Palm Beach Gardens, and Roy R. Watson of Adams, Coogler, Watson, Merkel, Barry & Kellner, West Palm Beach, for appellants Wilbur and Gardens Radiology.
William T. Viergever and Michael S. Smith of Sonneborn, Rutter, Cooney, Klingensmith & Eyler, P.A., West Palm Beach, for appellant Sarner.
Scott Michaud of Michaud Buschmann Fox Ferrara & Mittelmark, for appellant Brock.
Dinah S. Stein and Mark Hicks of Hicks, Anderson & Kneale, P.A., Miami, for appellants Zighelbоim, Flaxman and Koerner, Taub & Flaxman.
Jane Kreusler-Walsh and Rebecca J. Mercier of Jane Kreusler-Walsh, P.A., West Palm Beach, and Theodore Babbitt and Joseph R. Johnson of Babbitt, Johnson & Osborne, P.A., West Palm Beach, for appellee.
FARMER, J.
In this medical malpractice action, a jury found five doctors negligent and awarded damages of more than $2.4 million. The trial court ordered a new trial on damages based on two widely separated comments made by plaintiff's counsel during closing argument. The trial judge's only stated reason was that the comments were "so egregious that they constitutе fundamental error." Defendants argue on appeal that the comments warrant a new trial on liability as well. We disagree and reverse the order granting a new trial.[2]
The first comment of plaintiff's counsel was as follows:
"your verdict in this case is supposed to pay for the loss that this man has suffered and will suffer for the rest of his life. That verdict should be in the amount of five million dollars, one million dollars for each of the defendants in this case. In this day and age where inanimate objects like paintings are sold at auctions for ten million dollars, a living, breathing person has died, Barbara Hightower"
At this point defendants objected, but the trial court overruled the objection and plaintiff continued thus:
"Before I was interrupted, I was talking about the loss thatwhat that means to Mr. Hightower that this living person is gone from his life. What is the value of that loss? You could say no amount of monеy could bring her back and that's true, but you have got to make sense out of this. You have got to make some sense out of this loss."
*383 The defendants argue that this comment was an improper "value of human life" argument, akin to that found improper in Public Health Trust of Dade County v. Geter,
In Geter, counsel for the plaintiff asked the jury to place a monetary value on the life of the decedent, just as a monetary value is placed on an eighteen million dollar Boeing 747 or an eight million dollar SCUD missile. The Third District ordered a new trial on damages, finding that such argument was improper, highly inflammatory, and deprived the defendant of a fair trial on the issue of damages.
Defendants contend that, as in Geter, the message to be gleaned frоm the plaintiff's argument in this case was "[i]f a picture is worth ten million dollars, what is a human life worth?" Reviewing the argument in its entirety and placing the challenged portion of the plaintiff's argument into context, however, it is clear that the plaintiff's counsel was not arguing that the jury should place a monetary value on the decedent's life but, rather, on her surviving spouse's loss. We thus conclude that the trial judge was correct in overruling the objection when the argument was actually made to the jury.
A judge may not base an order for a new trial on argumеnt that is both generally and contextually proper as a matter of law. Cf. Murphy v. International Robotic Systems, Inc.,
The second challenged comment came during rebuttal argument, as counsel argued:
"You need to come back with a verdict you can be proud of [a] verdict that my client, Mr. Hightower, can come up here and shake your hands and say you have made some sense out of this. Don't let these people go baсk to their offices and [laugh] in the hall room and say, we put one over on them. Baloney. They missed the diagnosis, they missed the x-rays, not once but twice, and this lady's life depended on it. They made a mistake. The didn't mean to do it, but they made a mistake, and they're responsible."
Defendants argue that this latter argument was even more egregious than the first and affected liability as well as damages in that it was "an exhortation to the jury to send a message to the defendants", "it essentially accused the defendants of perpetrating a fraud upon the jury and the court", and that "it was nothing more than a conscience of the community argument". Not one of the many attorneys for defendants interposed a contemporaneous objection to this argument.
As an initial matter, we do not agree that the argument was an exhortation to "send a message" or that it was a "conscience of the community" argument. We do agree, however, that it could reasonably be understood as accusing defense counsel of attempting to mislead the jury, at least as regards thе subject of damages. In *384 context, however, it does not appear to have been prejudicial as defendants later argued in the hearing on post trial motions, or indeed before this court. For one thing, in addition to compelling evidence of medicаl negligence,[4] the record also establishes how devastating the loss of the decedent was to the surviving spouse. This was a 41-year marriage, and there was substantial evidence of grief and emotional loss. For another, the jury more than halved plaintiff's requested damages. Moreover, and not the least salient, the remark was a single excess at the end of a five week long trial. An examination of the record shows that the argument was utterly harmless.
In Murphy, the court established definite principles and standards for the consideration of new trials based on unobjected arguments of counsel in civil cases.
"In imposing this harmfulness requirement, we recognize that `there is a temptation for both trial courts and appellate courts to use the remedy of new trial as a tool to punish misconduct of an attorney.' However, closing argument that is violative of rule 4-3.4 does not necessarily constitute harmful error. Although courts havе a supervisory role in overseeing the conduct of attorneys, the primary concern of courts must be how the improper closing argument affected the fairness of the trial proceedings. Thus, we agree ... that, in many cases, `when argument descends to the lеvel of ethical violations, there are other ways to address the transgression than reversal of a jury verdict.' We in no way condone improper comments but conclude the litigation process is intended to resolve the pending dispute, not provide a mechanism to deal with wayward lawyers."
"Harmfulness in this context also carries a requirement that the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury. Passing remarks of little consequence in the scope of a lengthy trial should find little sympathy if no contemporaneous objection is voiced. The extensiveness of the objectionable material is a factor to be considered in the harmfulness analysis. In sum, the improper closing argument comments must be of such a nature that it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments." [e.s., c.o.]
At the same time, Murphy holds that the complaining party must establish that the harm caused by the arguments is incurable. As the court said:
"Should a complaining party establish that the unobjected-to closing argument being challenged is both improper and harmful, the party must then establish that the argument is incurable. Specifically, a complaining party must establish that even if the trial court had sustained a timely objection to the impropеr argument and instructed the jury to disregard the improper argument, such curative measures could not *385 have eliminated the probability that the unobjected-to argument resulted in an improper verdict. This concept of `incurability' can be traced back to the ... standard that a timely objection to improper closing argument is required before a new trial may be granted based on such argument unless `the improper remarks are of such character that neither rebuke nor retraction may entirely destroy their sinister influencе.' [I]t will be extremely difficult for a complaining party to establish that the unobjected-to argument is incurable." [e.s., c.o.]
The trial judge's order makes none of the findings required by Murphy.[5] It does not find that the remark was harmful or that it was incurable. There is nothing demonstrating that "it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments." Indeed the only basis for the new trial is that the combined arguments were "so egregious that they constitute fundamental error." The fact that an improper argument is excessively wrong does not make it "fundamental" or a proper bаsis for a new trial; an improper remark must satisfy the requirements of Murphy to support a new trial order. The unobjected argument in this case simply cannot be deemed "so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury."[6] To repeat, it was a single comment in argument near the end of a five week trial thatwhile capable of being interpreted to be an improper attribution of motives without any basis thereforwas of highly doubtful effeсt.
We therefore conclude that the trial judge abused his discretion in ordering a new trial. Discretion is abused when the court chooses a remedy that the facts and law do not support. See Ellard v. Godwin,
We, therefore, reverse the trial court's order granting a new trial and remand for the entry of judgment on the verdict.
TAYLOR, J., and KAHN, LISA DAVIDSON, Associate Judge, concur.
NOTES
Notes
[2] We affirm on all other issues. In particular we find no error in regard to the matter of jury selection. While the trial judge may have evidenced some misunderstanding as to the current state of the law in objecting to peremptory challenges under State v. Neil,
[3] See § 768.21(2), Fla. Stat. (1999).
[4] The victim went to the hospital as an outpatient for an enema and ended up dying from a perforated bowel.
[5] In fairness we note that the trial judge did not have the benefit of the supreme сourt's decision in Murphy, even if it did have the decision of this court in that case. Murphy v. Int'l Robotics Systems Inc.,
[6] Having so held, we nonetheless condemn the lack of professionalism in plaintiff's counsel in making such an aspersion. It is precisely this kind of overkill that is most cited in public discussions of the objectionable conduct of lawyers that brings disrepute to the profession.