FLORENCE KUBA, PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSEPH KUBA, DECEASED; FLORENCE KUBA, INDIVIDUALLY; FLORENCE KUBA, PERSONAL REPRESENTATIVE FOR THE BENEFIT OF MONA KUBA AND JEFF KUBA; AND JAY KUBA, INDIVIDUALLY, APPELLANTS,
v.
SAMUEL L. LEB, M.D.; LEB & SEIDENBERG, P.A.; FREDERICK SHUSTER, M.D.; CROWELL, SHUSTER AND REICBBACK, P.A., APPELLEES
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Plaintiffs, as representatives of a deceased patient's estate, appealed a jury verdict in a medical malpractice case against two physicians and their medical practices. The Third District Court of Appeal affirmed the lower court judgment, finding no reversible error in the jury instructions or the trial court's allowance of a defendant-physician to cross-examine the plaintiffs' expert witness.
The court held that the jury instruction did not constitute reversible error when considered in light of all instructions, pleadings, and evidence presented as a whole. The trial court did not abuse its discretion in allowing a defendant-doctor to cross-examine the plaintiffs' expert witness.
[1] Jury instructions are reviewed as a whole, and an assignment of error based on a single instruction cannot prevail if the charge as a whole fairly presents the law upon t…
[2] A trial court has discretion to permit one defendant to cross-examine a plaintiff's expert witness even when defendants are represented by counsel.
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Join FLexlaw to unlock all legal intelligence“[i]n determining whether a specific instruction is erroneous, it should be considered with all the other instructions given, and the pleadings and evidence in the case. The proper test is whether the charge as a whole adequately presents the law upon the issues.”
Establishes the standard for reviewing jury instructions on appeal—instructions must be evaluated in context with all other instructions and evidence rather than in isolation.
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Join FLexlaw to unlock all legal intelligenceThis case involved a medical malpractice claim brought by Florence Kuba (as personal representative of Joseph Kuba's estate and individually), along w…
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PER CURIAM.
Considered in light of the requirement that:
“[i]n determining whether a specific instruction is erroneous, it should be considered with all the other instructions given, and the pleadings and evidence in the case. The proper test is whether the charge as a whole adequately presents the law upon the issues. In passing on a single instruction, it is to be judged in the light of all the other instructions given, bearing upon the same subject and if when so judged, the law appears to have been fairly presented to the jury, an assignment of error based on the challenged instruction cannot prevail.” Yacker v. Teitch, 330 So. 2d 828, 830 (Fla. 3d DCA 1976) (citations omitted);
see Grimm v. Prudence Mutual Casualty Co., 243 So. 2d 140 (Fla.1971); Miami Herald Publishing Co. v. Frank, 442 So. 2d 982, 984 n. 3 (Fla. 3d DCA 1983); Life Insurance Co. of North America v. Aguila, 389 So. 2d 303 (Fla. 5th DCA 1980), approved in part, quashed in part, 417 So. 2d 651 (Fla.1982); Gallagher v. Federal Insurance Co., 346 So. 2d 95 (Fla. 3d DCA), cert. denied, 354 So. 2d 980 (Fla.1977); Security Mutual Casualty Co. v. Bleemer, 327 So. 2d 885 (Fla. 3d DCA 1976), we are unable to say that the jury instruction complained of on appeal constitutes reversible error. It was within the trial court’s discretion to permit one of the defendant-doctors to cross-examine the plaintiffs’ expert witness notwithstanding that the defendants were represented by counsel, see Brasier v. Jeary, 256 F. 2d 474 (8th Cir.), cert. denied, 358 U.S. 867, 79 S.Ct. 97, 3 L.Ed.2d 99 (1958); State v. Tait, 387 So. 2d 338 (Fla.1980); State v. McCleary, 149 N.J.Super. 77, 373 A. 2d 400 (App.Div.), cert. denied, 75 N.J. 26, 379 A. 2d 257 (1977), and we find no abuse of that discretion here. We find appellants’ other points equally without merit, but requiring no discussion.
Affirmed.
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CSX Transp., Inc. v. Whittler, 584 So. 2d 579 (Fla. 4th DCA 1991)…ry Instructions. Appellees point out CSX’s failure to allege prejudice in this regard. If jury instructions, viewed as a whole, fairly state the applicable law to the jury, the failure to give particular instructions will not be error. Kuba v. Leb, 464 So. 2d 601 (Fla. 3d DCA 1985); Grimm v. Prudence Mutual Casualty Company, 243 So. 2d 140 (Fla.1971); Montgomery v. Stary, 84 So. 2d 34 (Fla.1955). Upon review of the record, we are satisfied that the trial court adequately charged the jury on each of the signi…
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Cliff Berry, Inc. v. State, 116 So. 3d 394 (Fla. 3d DCA 2012)…The language of a challenged instruction is to be considered in light of the other instructions given that bear upon the same subject and “[t]he proper test is whether the charge as a whole adequately presents the law upon the issues.” Kuba v. Leb, 464 So. 2d 601, 602 (Fla. 3d DCA 1985); see Mitchell v. State, 958 So. 2d 496, 501 (Fla. 4th DCA 2007) (rejecting argument that parsed the language of an instruction “to try to make it seem confusing”). We note that the State failed to object to the defense-reques…
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Carter v. Gottleb, 466 So. 2d 7 (Fla. 3d DCA 1985)…PER CURIAM. Affirmed. Kuba v. Leb, 464 So. 2d 601 (Fla. 3d DCA 1985) and cases cited. Hendricks v. Dailey, 208 So. 2d 101 (Fla.1968).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- State v. Tait, 387 So. 2d 338 (Fla. 1980)
- Gallagher v. Fed. Ins. Co., 346 So. 2d 95 (Fla. 3d DCA 1977)
- Grimm v. Prudence Mut. Cas. Co., 243 So. 2d 140 (Fla. 1971)
- Sec. Mut. Cas. Co. v. Bleemer, 327 So. 2d 885 (Fla. 3d DCA 1976)
- Yacker v. Teitch, 330 So. 2d 828 (Fla. 3d DCA 1976)
- Life Ins. Co. OF N. Am. v. DEL Aguila, 417 So. 2d 651 (Fla. 1982)
- Brasier v. Clark Jeary, 256 F.2d 474 (8th Cir. 1958)
- The Miami Herald Publ'g Co. v. Frank, 442 So. 2d 982 (Fla. 3d DCA 1983)
- Brasier v. Jeary, 358 U.S. 867 (U.S. 1958)
- Prouty v. Citizens Utils. Co., 358 U.S. 867 (U.S. 1958)