RALPH MAERCKS, M.D. AND RALPH MAERCKS, M.D., P.A. APPELLANTS,
v.
SHERRI BIRCHANSKY, APPELLEE
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Dr. Ralph Maercks appeals a $750,000 jury verdict in a medical malpractice case, arguing that improper closing argument by plaintiff's counsel deprived him of a fair trial. The court agrees and reverses, finding that plaintiff's counsel made impermissible arguments asking the jury to 'send a message' and displayed evidence that had been excluded.
The court held that Maercks is entitled to a new trial. The improper closing argument—particularly the repeated appeals to the jury as the 'conscience of the community' to 'send a message,' comments on excluded medical expenses, derogatory personal remarks, assertions of personal opinions on credibility, and display of excluded evidence—constituted reversible error regardless of whether all objections were sustained.
[1] Improper closing arguments by counsel, including asking the jury to send a message with its verdict, commenting on excluded evidence, making derogatory remarks about oppo…
[2] Counsel's display to the jury of excluded evidence, such as cancelled checks, is impermissible and may warrant a new trial.
Previewing 2 of 5 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“we will not condone such arguments as were made in closing where counsel for plaintiff three times asked the jury as the 'conscience of the community' to 'send a message with its verdict,' and additionally commented on the expense of past medical bills when there was no claim for past medical expenses as damages”
Establishes the core impermissible conduct—jury appeals to 'send a message' and arguments about excluded damages
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Join FLexlaw to unlock all legal intelligenceSherri Birchansky sued Dr. Maercks for medical malpractice seeking compensatory damages. The defendant admitted liability but contended that the plain…
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PER CURIAM.
Ralph Maercks appeals from a jury verdict awarding plaintiff Birchansky $750,000 in compensatory damages in her medical malpractice action against him. Maercks’ motion for a new trial, denied by the trial court, alleged that improper argument during closing, and other asserted improprieties by plaintiff’s counsel during the trial itself, denied him a fair trial. We agree that Maercks is entitled to a new trial and reverse.
This was a suit for compensatory damages in which there was no claim for punitive damages. We have stated repeatedly that we will not condone such arguments as were made in closing where counsel for plaintiff three times asked the jury as the “conscience of the community” to “send a message with its verdict,” and additionally commented on the expense of past medical bills when there was no claim for past medical expenses as damages, made derogatory personal remarks about opposing counsel, and asserted his personal opinion as to the credibility of a witness, the justness of his client’s cause and the perfidy of the defendant. Carnival Cruise Lines, Inc. v. Rosania, 546 So. 2d 736 (Fla. 3d DCA 1989); Bloch v. Addis, 493 So. 2d 539 (Fla. 3d DCA 1986); Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), review denied, 488 So. 2d 832 (Fla.1986); Schreier v. Parker, 415 So. 2d 794 (Fla. 3d DCA 1982); Fla.Bar R.Prof.Conduct 4-3.-4(e).
Some objections to these remarks were sustained while others were overruled.1 Equally impermissible was counsel’s action in displaying to the jury a plastic bag filled with cancelled checks, when those checks had been excluded from evidence, as to which the trial judge properly admonished counsel for appellee. Fla.Bar R.Prof.Conduct 4-3.4(e) (“In trial, alluding to any matter ... that will not be supported by admissible evidence”).
Whether we consider only the remarks as to which the objections were overruled, or the closing argument as a whole, there must be a new trial. See Del Monte Banana Co. v. Chacon, 466 So. 2d 1167, 1175 (Fla. 3d DCA 1985); Russell, Inc. v. Trento, 445 So. 2d 390, 392 (Fla. 3d DCA 1984).
As for the second issue raised by Maercks, the defendant admitted that he had liability but contended that appellee had been fifty percent comparatively negligent. The nature and extent of liability by both parties was therefore very much an issue in the case. It was not accurate to characterize the case, as appellant has attempted to do, as one in which liability was admitted and the sole issue was damages. Because comparative fault was an issue, we do not find error in the trial court’s ruling that evidence of other similar acts could be introduced for the purposes of showing the defendant’s state of mind and for impeachment. See Metropolitan Dade County v. Cox, 453 So. 2d 1171, 1172-75 (Fla. 3d DCA 1984).
REVERSED.
. We do not mean to indicate by the result of this opinion that the conduct of defense counsel was entirely blameless. Appellee’s allegation that "if any such violations occurred they were surpassed by defense counsel’s violations" is not a defense. Borden, Inc. v. Young, 479 So. 2d at 851-52.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (15 total)
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Liggett Grp. Inc. v. Howard A. Engle, M.D., 853 So. 2d 434 (Fla. 3d DCA 2003)…ng not to grant a mistrial simply because this was a lengthy trial. . The defendants point out that this is not the first time plaintiffs’ counsel, Mr. Rosen-blatt, has engaged in the type of misconduct requiring reversal. In Maercks v. Birchansky, 549 So. 2d 199 (Fla. 3d DCA 1989), this Court reversed a judgment in favor of the plaintiff based upon the improper arguments and conduct of her attorney, Mr. Rosenblatt. Similar to the present case, in Maerclcs, Mr. Rosen-blatt improperly made derogatory comments…
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Kaas v. Atlas Chem. Co., 623 So. 2d 525 (Fla. 3d DCA 1993)…asic right to a fair and legitimate trial has been fatally compromised. See Bloch v. Addis, 493 So. 2d 539 (Fla. 3d DCA 1986); Borden, Inc. v. Young, 479 So .2d 850 (Fla. 3d DCA 1985), review denied, 488 So. 2d 832 (Fla.1986); Maercks v. Birchansky, 549 So. 2d 199 (Fla. 3d DCA 1989); Schreier, 415 So. 2d at 795 (Such arguments “will not be condoned in this court, nor should they be condoned by the trial court, even absent objection.” [e.o.]). Even were the issue presented on a defense appeal from a plaintiffs…
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Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 552 (Fla. 3d DCA 2000)…mistrial on the same basis, but its objections were overruled and its motion denied. In our view that was error as such “send a message” arguments are clearly improper. Murphy v. Murphy, 622 So. 2d 99, 102 (Fla. 2d DCA 1993); Maercks v. Birchansky, 549 So. 2d 199 (Fla. 3d DCA 1989). Further undermining the propriety of his closing was the Grubbs’ counsel’s later argument that Norwegian did nothing about safety and his criticism of Norwegian for failing to produce safety certifications, even though testimony…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985)
- Schreier v. Parker, 415 So. 2d 794 (Fla. 3d DCA 1982)
- DEL Monte Banana Co. & Fed. Transp., Inc. v. Chacon, 466 So. 2d 1167 (Fla. 3d DCA 1985)
- Russell, Inc. v. Trento, 445 So. 2d 390 (Fla. 3d DCA 1984)
- Edward J. Bloch, M.D. v. Kersten Watson Addis, 493 So. 2d 539 (Fla. 3d DCA 1986)
- Woodson v. State, 453 So. 2d 1171 (Fla. 4th DCA 1984)
- Dubow v. Richards, 546 So. 2d 736 (Fla. 3d DCA 1989)
- Carnival Cruise Lines, Inc. v. Rosania, 546 So. 2d 736 (Fla. 3d DCA 1989)