AVIS QUARREL, APPELLANT,
v.
DONALD MINERVINI, M.D., DONALD MINERVINI, M.D., P.A., APPELLEE
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Limiting opening statement to five minutes in a complex medical malpractice case constitutes an abuse of discretion requiring reversal.
Plaintiff alleged uninformed consent to surgery, and her testimony, though conflicting, was sufficient to survive a motion for directed verdict. The t…
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PER CURIAM.
After the trial of this cause we decided Maleh v. Florida East Coast Properties, Inc., 491 So. 2d 290 (Fla. 3d DCA 1986), holding that it was an abuse of discretion to limit plaintiff’s counsel to a mere five minutes for an opening statement. The evidence, in this fairly complex medical malpractice case, consisted of the testimony of twelve witnesses and the introduction of complicated medical records. Counsel’s complaint to the trial judge, that he could not fairly outline the case to the jury in the allotted time, was well-founded. Reversal is required.
Plaintiff testified that her consent to surgery was uninformed. Although her testimony lacked cogency and conflicted with the defendant’s testimony, it was, nevertheless, sufficient to survive a motion for a directed verdict. Dandashi v. Fine, 397 So. 2d 442 (Fla. 3d DCA 1981). If the evidence is conflicting, or will admit of different reasonable inferences, or if there is any evidence tending to prove the issue, it should be submitted to the jury as a matter of fact, and not taken from them as a question of law. Hendricks v. Dailey, 208 So. 2d 101 (Fla.1968).
Since the case must be retried we address another incorrect evidentiary ruling which alone, on the facts of this case, would not have been grounds for reversal. Medical treatises cannot be used to bolster the testimony of a physician on direct examination. § 90.706, Fla.Stat. (1985); Medina v. Variety Children’s Hospital, 438 So. 2d 138 (Fla. 3d DCA 1983).
Reversed and remanded for a new trial.
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Linn v. Basil D. Fossum, M.D., 946 So. 2d 1032 (Fla. 2006)…922 So. 2d 391, 391 (Fla. 1st DCA 2006) (trial court erred in allowing expert witness to refer on direct examination to a scientific article that supported expert’s decision not to conduct a physical examination of the victim); Quarrel v. Minervini, 510 So. 2d 977, 978 (Fla. 3rd DCA 1987) (“Medical treatises cannot be used to bolster the testimony of a physician on direct examination.”). This is consistent with the general rule that it is improper on direct examination to introduce evidence to support the cre…
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Schwarz v. State, 695 So. 2d 452 (Fla. 4th DCA 1997)…ts to improperly bolster their own opinions. Experts cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion. Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th DCA 1989), Quarrel v. Minervini, 510 So. 2d 977 (Fla. 3d DCA 1987), Tallahassee Memorial v. Mitchell, 407 So. 2d 601 (Fla. 1st DCA 1981). Nor are statements in a treatise admissible during the direct examination of an expert, Green v. Goldberg, 630 So. 2d 606 (Fla. 4th DCA 1993), although they ca…
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Brown v. M. David Sims, M.D., 538 So. 2d 901 (Fla. 3d DCA 1989)…dmit of different reasonable inferences, or if there is any evidence tending to prove the issues, it should be submitted to the jury as questions of fact and not be taken away to be passed upon by the judge as questions of law. Quarrel v. Minervini, 510 So. 2d 977 (Fla. 3d DCA 1987), rev. denied, 519 So. 2d 987 (Fla.1988); Idy Corp. v. Fenton, 454 So. 2d 13 (Fla. 3d DCA 1984); Dandashi v. Fine, 397 So. 2d 442 (Fla. 3d DCA 1981), (citing Hendricks v. Dailey, 208 So. 2d 101 (Fla.1968)); Behar v. Root, 393 So. 2…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendricks v. Dailey, 208 So. 2d 101 (Fla. 1968)
- Salem Dandashi and Mansham Dandashi v. Fine, 397 So. 2d 442 (Fla. 3d DCA 1981)
- Medina v. Variety Child's. Hosp., 438 So. 2d 138 (Fla. 3d DCA 1983)
- Radin v. Radin, 491 So. 2d 290 (Fla. 3d DCA 1986)
- Maleh v. Fla. E. Coast Props., Inc., 491 So. 2d 290 (Fla. 3d DCA 1986)