GOOD SAMARITAN HOSPITAL ASSOCIATION, INC., APPELLANT,
v.
AUVEL SAYLOR AND MARGARET SAYLOR, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF MARGARET EILER, DECEASED, APPELLEES
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Good Samaritan Hospital appeals a $4 million wrongful death judgment and $1.1 million attorney's fee award in a medical malpractice case where liability was admitted and only damages were contested. The Fourth District Court of Appeal affirms both the damages award and attorney's fee calculation, finding no reversible error and rejecting the hospital's arguments regarding juror misconduct, jury instructions, counsel's closing argument, and the method of computing fees.
The court affirmed the judgment and attorney's fee award, holding that: (1) the trial court properly refused the income tax instruction, as the majority of courts do not require juries to consider tax consequences of damage awards; (2) the hospital waived its objections to juror issues through stipulation and failed to establish that counsel's closing argument was improper or grounds for mistrial; and (3) the trial court's fee award was calculated substantially in compliance with the lodestar formula adopted in Florida Patient's Compensation Fund v. Rowe.
[1] A stipulation waiving claims of mistrial and prejudice based on jury selection and testimony heard thus far bars appellate review of those issues.
[2] A trial court has discretion whether to instruct a jury that damages awarded are not subject to federal income tax.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the amount of income tax which might become due on a person's prospective future earnings is too conjectural to be considered in fixing the damages to which he may be otherwise entitled; that to introduce the income tax feature into a lawsuit seeking damages would be unduly complicating and confusing.”
Supports the refusal to give an income tax instruction to the jury, establishing that tax consequences should not be considered in calculating damages.
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Join FLexlaw to unlock all legal intelligenceMargaret Eiler died as a result of medical malpractice by Good Samaritan Hospital and other medical defendants. The hospital and codefendants admitted…
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DELL, Judge.
Appellant seeks reversal of a final judgment awarding appellees $4,000,000 for the wrongful death of the decedent as the result of medical malpractice, and of an order awarding appellees’ attorney’s fees of $1,100,000. Appellant and other defendants not parties to this appeal1 admitted liability for negligence, and this case went to the jury solely on the question of damages. Appellant claims that the jury reached an excessive verdict because of multiple errors committed at trial.
Appellant first suggests that juror misconduct and the comments of appellees’ counsel during voir dire examination caused the jury to award excessive damages. We dispose of this argument summarily because appellant’s counsel,2 togeth er with counsel for the other defendants, entered into a stipulation with appellee that waived these points of error:
We have a stipulation we would like to put on the record that will shorten the trial. The parties have agreed — and I am saying this in the presence of everybody, for the record — that providing the Plaintiff drops the claim for punitive damages, the Defendants will waive any motion for mistrial and will waive a request for a second jury to hear damages only and will agree that punitive damages or, [if] in fact, there ever was a punitive damage claim [it] would not be mentioned to this jury, and the Defendants do waive any error or any prejudice by virtue of having had this jury hear the testimony they have heard thus far. [Emphasis added.]
Appellant also argues that the trial court erred when it refused to instruct the jury that the amount awarded in damages would not be subject to federal income tax. The Second District Court of Appeal in Poirier v. Shireman, 129 So. 2d 439 (Fla. 2d DCA 1961) concluded that the giving of such an instruction is discretionary. However, in St. Johns River Terminal Co. v. Vaden, 190 So. 2d 40 (Fla. 1st DCA 1966), the court affirmed the denial of a request for an instruction on income tax and stated:
It appears that the decided majority of courts in America support the view that in fixing damages for accrued loss of earnings or for impairment of future earning capacity because of personal injury, the income tax consequences of the injury and the award should not be taken into consideration; on the contrary, the award of damages should be based upon the plaintiffs gross earnings or earning capacity and should not be reduced because of any income tax saving which may result to the plaintiff because of the fact that the damages will be exempt from income tax. Courts so ruling premise their conclusion on the theory that income tax liability ,of the plaintiff is not pertinent to the damage issue, being a matter strictly between the plaintiff and the taxing authority and of no legal concern to the defendant; that the amount of income tax which might become due on a person’s prospective future earnings is too conjectural to be considered in fixing the damages to which he may be otherwise entitled; that to introduce the income tax feature into a lawsuit seeking damages would be unduly complicating and confusing.
Id. at 41-42 (footnotes omitted).
We cited St. Johns River Terminal Co. v. Vaden with approval in Leaseco, Inc. v. Bartlett, 257 So. 2d 629 (Fla. 4th DCA 1971). We find no error in the trial court’s refusal to give the requested instruction.
Appellant next contends that during closing argument, appellees’ counsel displayed excessive emotional behavior in the courtroom, made improper references to the value of a mother, and expressed his personal belief in the righteousness of the cause. The trial transcript demonstrates that appellees’ counsel requested a brief recess during argument, but does not establish that he made this request because of an inability to control his emotions, or that the trial court granted the recess on that basis. We find no error in the trial court’s denial of appellant’s motion for a mistrial based on this action. Since appellant did not object to counsel’s argument concerning the value of a mother, the error, if any, was waived. The record does not demonstrate that appellees’ closing argument exceeded the wide latitude which is generally permitted during argument.
[I]t must be expected that counsel during closing summation to the jury will engage in sometimes emotional and heated debate. Counsel are accorded a wide latitude in making arguments to the |jury, and unless their remarks are highly prejudicial and inflammatory, counsel’s statements made to the jury during closing arguments will not serve as a basis for reversing a judgment.
Metropolitan Dade County v. Dillon, 305 So. 2d 36, 40 (Fla. 3d DCA 1974).
We are satisfied that the emotional aspects of this trial were no greater than those that understandably pervade a trial of this type. Although the jury awarded a substantial amount to each of the decedent’s children, the record contains competent evidence supporting the verdict.
A party who assails the amount of a verdict as being excessive, has the burden of showing it is unsupported by the evidence, or that the jury was influenced by passion or prejudice. A verdict which has been approved by the trial court as to amount should not be disturbed on appeal if it has a reasonable relation to the damages proven....
The determination of the amount of such damages is peculiarly within the province of the jury.
Bould v. Touchette, 349 So. 2d 1181, 1184 (Fla.1977) (quoting Talcott v. Holl, 224 So. 2d 420, 422 (Fla. 3d DCA 1969)) (citations omitted). We conclude that the jury’s verdict was not the product of passion and emotion as was the verdict in Harbor Insurance Co. v. Miller, 487 So. 2d 46 (Fla. 3d DCA 1986).3
In summary, we do not find that any of the alleged errors raised by appellant constitute reversible error, either singly or cumulatively, nor do we find the amount of the jury’s award excessive. Therefore, we affirm the judgment in favor of appellees.
Appellant also claims error in the award of $1.1 million attorney’s fees. Appellant argues that the trial court failed to utilize the federal “lodestar” method of computing fees as adopted by the supreme court in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985). Rowe involved a statutory fee award to the successful party in a medical malpractice case. The Florida Supreme Court stated:
[I]n computing an attorney fee, the trial judge should (1) determine the number of hours reasonably expended on the litigation; (2) determine the reasonable hourly rate for this type of litigation; (3) multiply the result of (1) and (2); and, when appropriate, (4) adjust the fee on the basis of the contingent nature of the litigation or the failure to prevail on a claim or claims. Application of the Disciplinary Rule 2-106 criteria in this manner will provide trial judges with objective guidance in the awarding of reasonable attorney fees and allow parties an opportunity for meaningful appellate review.
Id. at 1151-52. Utilizing the above formula, the number of hours expended multiplied by the rate yields the lodestar figure. When appropriate, this figure may be enhanced by a multiplier of 1.5 to 3.0, depending on factors of contingency risk and results obtained.
The record of the attorney’s fee hearing demonstrates sufficient evidence to compute appellees’ attorney’s fees utilizing the lodestar formula.4 The trial judge heard testimony from two experienced trial lawyers concerning the reasonable value of appellees’ attorney’s services. Appellees’ counsel, who represented appellees under a contingent fee agreement, presented unre-butted testimony that he expended 1,500 to 2,000 hours working on this case. One of appellees’ experts testified that a reasonable hourly rate for appellees’ attorney’s services would range from $200 to $300 per hour, and that a reasonable fee would range between $1.0 million and $1.5 million. Appellant’s expert testified by deposition that 1,500 hours was a reasonable expenditure of time on this case, and that the hourly fee should be enhanced by a contingency risk factor of 2.0. He disagreed as to the hourly rate for appellees’ attorney, stating that $100 per hour would be reasonable. The evidence presented furnished an adequate basis to support the trial court’s award of $1.1 million (2,000 hours x $275 per hour x contingency risk multiplier of 2.0 = $1.1 million).
The order awarding attorney’s fees demonstrates that the trial judge considered the factors required to compute a reasonable fee using the lodestar formula, and shows substantial compliance with Rowe. See Lyons v. Lyons, 486 So. 2d 77 (Fla. 2d DCA 1986). Accordingly, we affirm the final judgment and the order on attorney’s fees in all respects.
AFFIRMED.
LETTS and GLICKSTEIN, JJ., concur. . The decedent’s physicians, codefendants at trial, settled with appellees.
. Appellant acknowledges that while trial counsel for the hospital did not affirmatively state his agreement with the foregoing stipulation, it is safe to assume that he acquiesced in it by virtue of his silence and later comments.
. In Harbor Insurance Co. v. Miller, 487 So. 2d 46 (Fla. 3d DCA 1986), the Third District Court of Appeal reversed a 1.56 million dollar verdict for the wrongful death of a thirteen-year-old child. The district court concluded that the repetitive, highly emotional testimony of the mother’s inability to cope with her son’s death, and the impermissible "golden rule" arguments made by appellee in closing argument, caused the jury’s verdict to be a product of passion and emotion rather than based on the evidence presented.
. Appellant furnished (without objection from appellees) an appendix to its brief which contains the record of the hearing on attorney’s fees.
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Mauricio J. DeALMEIDA, M.D. v. Graham, 524 So. 2d 666 (Fla. 4th DCA 1987)…ppellants claim that the record does not contain sufficient evidence to sustain the trial court award of attorney’s fees based on the criteria set forth in Rowe. Appellee responds and cites this court’s decision in Good Samaritan Hospital v. Saylor, 495 So. 2d 782 (Fla. 4th DCA 1986). In Saylor we affirmed an award of attorney’s fees made before the supreme court’s decision in Rowe. We concluded in Saylor that the trial court had considered each of the elements required by Rowe and that the application of the…
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Chrysler Corp. v. Weinstein, 522 So. 2d 894 (Fla. 3d DCA 1988)…. See Linn v. Linn, 464 So. 2d 614 (Fla. 4th DCA [*897] 1985); cf. Appalachian, 507 So. 2d at 152 (canvas of the record and analysis of the evidence showed no reversible error in application of Rowe principles); Good Samaritan Hosp. Ass’n v. Saylor, 495 So. 2d 782, 784 (Fla. 4th DCA 1986) (evidence supported trial court’s award of attorney’s fees based on federal lodestar formula). Affirmed.…
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The Glades, Inc. v. The Glades Country Club Apts. Ass'n, Inc., 534 So. 2d 723 (Fla. 2d DCA 1988)…of those witnesses testified to a fee of $250,000 for between 400 and 450 hours opined by the witness to have been expended by defense counsel. The other testified to a fee of “at least $150,-000.” See Good Samaritan Hospital Ass’n, Inc. v. Saylor, 495 So. 2d 782, 784 (Fla. 4th DCA 1986); Nivens v. Nivens, 312 So. 2d 201 (Fla. 2d DCA 1975). We now address defendant’s contention on appeal that the lodestar figure should have been enhanced based upon the amount involved and the result defense counsel obtained…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Dorthy Bould and Edward Simonson, Jr. v. Touchette, 349 So. 2d 1181 (Fla. 1977)
- Metro. Dade Cnty. v. Dillon, 305 So. 2d 36 (Fla. 3d DCA 1974)
- Talcott v. Holl, 224 So. 2d 420 (Fla. 3d DCA 1969)
- Harbor Ins. Co. v. Miller, 487 So. 2d 46 (Fla. 3d DCA 1986)
- Leaseco, Inc. v. Bartlett, 257 So. 2d 629 (Fla. 4th DCA 1971)
- Haynes v. State, 486 So. 2d 77 (Fla. 2d DCA 1986)
- Poirier v. Shireman, 129 So. 2d 439 (Fla. 2d DCA 1961)
- ST. Johns River Terminal Co., Inc. v. Vaden, 190 So. 2d 40 (Fla. 1st DCA 1966)