ARTURO SECADA AND KING COLE MEAT PRODUCTS, APPELLANTS,
v.
JANICE WEINSTEIN, APPELLEE

Fla. 3d DCA | 1990-06-12
No. 89-2997
Before SCHWARTZ, C.J., and BASKIN and JORGENSON, JJ.
563 So. 2d 172 Florida District Court of Appeal, Third District (1990) Positive Treatment
Cited by 28 cases

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Synopsis

In this automobile accident personal injury case, the court reversed a jury verdict awarding the plaintiff $20,000 for permanent injury because the trial court erroneously admitted evidence that previous juries had rejected the defense expert's testimony that no permanent injury had been sustained. The court held that evidence of prior jury verdicts improperly invites the current jury to defer to previous fact-finders rather than reach independent conclusions.


Holding

The court held that while cross-examination to demonstrate an expert's bias by showing he consistently testified to the same conclusion in multiple cases was proper, admission of evidence regarding the outcomes of those prior trials was reversible error because it improperly invited the jury to defer to previous fact-finders rather than reach independent conclusions.


Headnotes

[1] Evidence of prior verdicts in cases involving the same expert witness is inadmissible as it invites the jury to defer to previous decisions, thereby abdicating its duty t…

[2] While the consistency of an expert's testimony in prior cases may be admissible to show bias, the results of those prior trials are impermissible collateral inquiries.

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Key Quotes

“While the fact that Dr. Gregory consistently and repeatedly testified to the same effect in previous cases, even specifically designated ones, was a perfectly proper subject of cross-examination to demonstrate his alleged bias and prejudice... the same may emphatically not be said as to the results of those trials.”

Establishes the distinction between admissible cross-examination regarding consistent testimony (to show bias) and inadmissible evidence of trial outcomes

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Facts & Procedural History

The plaintiff, Janice Weinstein, sued for personal injuries from an automobile accident. At trial, the plaintiff presented orthopedic and neurosurgica…

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Opinion of the Court
SCHWARTZ, Chief Judge.

SCHWARTZ, Chief Judge.

The sole issue at the trial of this automobile accident personal injury case was whether the plaintiff had crossed the no fault threshold by establishing that she had sustained a permanent injury. The jury found that she had and awarded her $20,-000. We reverse for a new trial because of the erroneous admission of evidence that previous juries in other eases had rejected the testimony of one of the defense expert physicians — similar to that in this case— that no permanency had been sustained.

In its broad outline, the trial followed the usual battle-of-experts-pattern which is an almost invariable feature of cases like this. The plaintiff presented an orthopedist and a neurosurgeon who each testified to per manency; the defense presented equivalent specialists to the contrary. The unusual, and reversible, aspect of the case arose during the cross-examination of the defendants’ orthopedic surgeon, Dr. Ledford Gregory. After the trial judge, preferring to await the actual questions propounded during cross, declined directly to rule on a motion to preclude the proposed line of inquiry, Ms. Weinstein’s counsel referred by name and court location to many previous cases in which Dr. Gregory had likewise testified that those plaintiffs had sustained no permanent injury. She then proceeded, over specific objection, to state — in the form of questions which so indicated— that each of these cases had resulted in a verdict for the plaintiff and thus a rejection of Dr. Gregory’s testimony.1 Telling this to the jury requires a new trial.

While the fact that Dr. Gregory consistently and repeatedly testified to the same effect in previous cases, even specifically designated ones, was a perfectly proper subject of cross-examination to demonstrate his alleged bias and prejudice, 24 Fla.Jur.2d Evidence and Witnesses § 673 (1981); Wilson v. Stilwill, 411 Mich. 587, 599-603, 309 N.W. 2d 898, 902-03 (1981), the same may emphatically not be said as to the results of those trials. As a, pardon the expression, threshold matter, this subject would improperly permit inquiry into a whole range of issues — concerning not only the particular facts of each of the cases about which Dr. Gregory was asked — but also the presumably many cases in which the jury found no permanency and thus agreed with him, as well as a similar point-counter-point concerning each of the previous cases in which the other experts, including the plaintiff’s, had testified. The introduction of thoroughly collateral questions like these is impermissible. See Atlantic Coast Line R.R. v. Campbell, 104 Fla. 274, 139 So. 886 (1932).

Far more important, however, is the fact that any information as to prior verdicts has the inevitable tendency of causing the jury in the present case to defer to decisions made in a previous one and thus to delegate the uniquely wow-delegable duty of reaching its own independent conclusions.

Thus, a whole series of cases has found reversible error in the admission of evidence that a previous “fact finder”— whether an investigating police officer, a traffic court, or a jury in a previous trial in the same case — reached a conclusion on an issue in the present trial. See Eggers v. Phillips Hardware Co., 88 So. 2d 507 (Fla.1956) (error to admit testimony of accident investigating officers that no arrest made for violation of traffic ordinances); Moore v. Taylor Concrete Co. & Supply Co., 553 So. 2d 787 (Fla. 1st DCA 1989) (error to overrule objection to recross examination implying trooper’s failure to issue traffic citation); Albertson v. Stark, 294 So. 2d 698 (Fla. 4th DCA 1974) (improper for defense counsel to state to jury that defendant had not been charged with traffic violation), dismissed, 299 So. 2d 602 (Fla.1974);- Murphy’s Executor v. Hoagland, 32 Ky.L.Rptr. 839, 107 S.W. 303 (1908), aff’d sub nom. Murphy’s Executor v. Murphy, 146 Ky. 396, 142 S.W. 1018 (1912) (error to allow questions on cross-examination as to how many jurors voted to break a will at former trial of same case); Garris v. McClain, 399 Pa. 261, 160 A. 2d 398 (1960) (error on cross-examination to allow reference to defendant as “losing party” at his former trial); Guarnier v. American Dredging Co., 145 A.D.2d 341, 535 N.Y.S.2d 705 (1988) (error for trial court to advise jury of plaintiff’s favorable verdict at prior trial); see also People v. Medina, 185 Colo. 101, 521 P. 2d 1257 (1974) (trial judge correct in not permitting prosecution to introduce evidence of previous verdict of sanity).

See generally 75 Am.Jur.2d Trial § 272 (1974); Annot., Propriety and Prejudicial Effect of Reference by Counsel in Civil Case to Result of Former Trial of Same Case, or Amount or Verdict Therein, 15 A.L.R.3d 1101 (1967).

These authorities have particular application here. See also Ryan v. Blakey, 71 Ill.App.3d 339, 361, 27 Ill.Dec. 540, 551-52, 389 N.E. 2d 604, 615-16 (1979) (cross-examination of defendant’s expert as to other cases in which he was to testify regarding theories of recovery and amounts sued for prejudicial and irrelevant).

We find no merit to the appellees’ claims that this error was not properly preserved,2 Webb v. Priest, 413 So. 2d 43 (Fla. 3d DCA 1982); Paris v. Bartfield, 160 Fla. 87, 33 So. 2d 713 (1948), and that it was harmless. Accordingly, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

. This course of conduct and the objections raised by defense counsel are epitomized in the following colloquy:

[By plaintiffs counsel] Q. How about the case of Marshall tried in front of Judge Feder in 1985, where you also testified that the plaintiff had no permanent injury?

A. No.

Q. Then in that case the jury found for the plaintiff. I can’t ...

A. Mr. HARRINGTON [defense counsel]: I want to renew my objection. What other jurors have done is irrelevant. THE COURT: I understand. He’s answered the questions to the best of his ability. That’s all he can do. THE COURT: Go ahead.

Q. Do you recall, sir, the case of Fardalitz, also tried in Dade County in front of Judge Fredricka Smith where you testified for the defendant that the plaintiff had no permanent disability?

A. No.

Q. Again, there was verdict for the plaintiff? MR. HARRINGTON: I object to an attorney testifying. It’s irrelevant. THE COURT: The jury understands that they are here to try this case. Go ahead. Other similar examples of the line of inquiry are as follows:

Q. Let me ask you this, Doctor, do you remember a case called Adderly that was tried in Dade County Courthouse in front of Judge Goderich in 1985 in which you testified that that plaintiff had no disability? A. No, ma’am, I don’t. Q. You don’t recall that case? A. No. Q. You don’t recall that in that case the jury rendered a verdict for the plaintiff? A. Ma’am I answered your question. I do not recall that case. Q. How about the case, the Peash case in Dade County in front of Judge Phillip Knight that you testified the plaintiff had no disability. Does that ring a bell? A. Ma’am, I can’t remember things four years ago. Q. You don’t recall the jury finding for the plaintiff in this case? A. No. . See supra note 1.

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Cited By (14 total)

  • Special v. W. Boca Med. Ctr., 160 So. 3d 1251 (Fla. 2014)
    …litigation addresses, see Marsh v. Valyou, 977 So. 2d 548, 548 (Fla.2007) (quoting Berry v. CSX Transp., Inc., 709 So. 2d 552, 571 (Fla. 1st DCA 1998)); Emory v. Fla. Freedom Newspapers, 687 So. 2d 846, 847 (Fla. 4th DCA 1997); Secada v. Weinstein, 563 So. 2d 172, 172 (Fla. 3d DCA 1990); Langston v. King, 410 So. 2d 179, 180 (Fla. 4th DCA 1982), Special’s inability to critically- address the issue of over-diagnosis with Dr. Dildy significantly handicapped his case. Also without merit is Baux and West Boca’s…
  • Wyon Dale Childers v. State, 936 So. 2d 585 (Fla. 1st DCA 2006)
    …ed the trial court to admit the Elliot acquittal in Appellant’s trial. We agree with the trial court that the Elliot verdict was not admissible in Appellant’s criminal trial. Verdicts from other cases are generally inadmissible. Secada v. Weinstein, 563 So. 2d 172 (Fla. 3rd DCA 1990). The trial court did not abuse his discretion in excluding this evidence. We further agree that the trial court did not abuse its discretion in excluding the state’s original indictment of Appellant. A comparison of the amended…
  • BDO Seidman v. Banco Espirito Santo Int'l, 38 So. 3d 874 (Fla. 3d DCA 2010)
    …case where, by virtue of their having been made by a judge, they would likely be given undue weight by the jury, thus creating a serious danger of unfair prejudice.’ ” Nipper v. Snipes, 7 F. 3d 415, 418 (4th Cir.1993); see also Secada v. Weinstein, 563 So. 2d 172, 173-74 (Fla. 3d DCA 1990). For these reasons, the subject bankruptcy order was not a proper subject of judicial notice, nor properly admissible in evidence. Another bankruptcy order was also introduced into evidence (rather than being judicially n…

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