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Fifth DCA Reversal of Order Granting New Trial Following Defense Verdict

Angela C. Flowers | August 1, 2018

Angela C. Flowers, of the Ocala office, recently obtained a reversal of the trial court’s order granting Plaintiff a new trial based on allegedly improper—but unobjected to—defense closing arguments of outside trial counsel. This case arose from a slip-and-fall at an amusement park where the jury returned a complete defense verdict. That victory was initially wiped out by the trial court’s order granting a new trial. As Angela explained in her briefs in the appeal, one thing that made this case unusual is that, within 3 days after the fall, Plaintiff began treating with a chronic pain management specialist even before seeing his primary doctor, and each of his treating physicians acquired an immediate, direct financial interest in the litigation. At trial, Plaintiff’s counsel made a tactical decision to preemptively explain and elicit that he referred Plaintiff to the pain doctor, and, in closing argument, he offered what amounted to unsworn explanations for his referral relationship with the treating doctors. The trial court deemed comments made by defense counsel in closing arguments on the subject to be fundamental error. On appeal, Angela persuaded the appellate court to reverse and reinstate the defense verdict. Although the appellate court found that certain defense arguments were improper, the court was persuaded that the unobjected-to comments did not rise to the level of fundamental error. Specifically, had Plaintiff objected to the closing arguments, they could have been cured by a timely objection, after which the trial court could have issued a curative instruction to the jury. Accordingly, the court reversed and remanded to reinstate the jury’s defense verdict.

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