SUN SUPERMARKETS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
HAROLD FIELDS, ET AL., APPELLEE; HAROLD FIELDS, ET AL., APPELLANTS, V. SUN SUPERMARKETS, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 3d DCA | 1990-10-09
Nos. 89-1023, 89-1195
Before BARKDULL, COPE and LEVY, JJ.
568 So. 2d 480 Florida District Court of Appeal, Third District (1990) Positive Treatment
Cited by 23 cases

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Synopsis

Sun Supermarkets appeals the denial of its motion for a new trial after a jury verdict for the plaintiff in a personal injury case. The court reverses and remands because plaintiff's counsel made highly prejudicial remarks attacking defense counsel's credibility by accusing him of lying and committing fraud, which deprived the defendant of a fair trial.


Holding

The court reversed and remanded for a new trial because the plaintiff's counsel's remarks were highly prejudicial and improper, depriving the defendant of a fair trial. The court also determined that the optometrist should not have been permitted to testify regarding causation of the plaintiff's postoperative condition, and such testimony should only come from a qualified ophthalmologist.


Headnotes

[1] Remarks by counsel that accuse opposing counsel of lying and committing fraud upon the court are highly prejudicial and warrant reversal for a new trial.

[2] A new trial is required when counsel's remarks are so inflammatory that neither rebuke nor retraction can cure their prejudicial effect.

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Key Quotes

“It is well-established that where remarks of a highly prejudicial and inflammatory nature are made by counsel during the course of a jury trial, reversal for a new trial must be ordered.”

Establishes the legal standard for reversing a trial verdict due to prejudicial counsel remarks

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Facts & Procedural History

In January 1987, plaintiff Peggy Fields was struck in the back of the head by a roll of toilet paper while shopping at defendant's supermarket. Fields…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Sun Supermarkets, Inc., the defendant in a personal injury action, appeals the lower court’s denial of several of its motions, including its motion for a new trial as a result of remarks made at trial by plaintiff’s counsel directly attacking the credibility of the defendant’s counsel. For the reasons that follow, we reverse and remand this case for a new trial.

In October of 1986, the plaintiff, Peggy Fields, had implant surgery performed on her right eye. In January of 1987, while shopping at a supermarket owned by the defendant, the plaintiff was struck in the back of the head by a single roll of toilet paper. Subsequent to the incident, the plaintiff’s vision was reduced because of a “macula hole” in her eye. The plaintiff, brought suit in October of 1987 claiming that the incident had caused the reduction of vision to her eye.

At trial, over the defendant’s objections, the plaintiff’s counsel was allowed to continuously remark to the jury that the defense counsel had lied to the jury and that he committed a fraud upon the court and jury. The defendant moved for a new trial based upon these remarks. The trial court denied the motion for a new trial. Also at trial, and over the objections of the defense counsel, the trial court permitted the plaintiff’s optometrist to testify as an expert witness on surgical procedures to which he was not qualified to perform. The jury found for the plaintiff in the amount of $1,000,000, but also found her to be 40% comparatively negligent. The court reduced the award accordingly. The defendant made several post-trial motions including a motion for a new trial which was denied. The defendant now appeals.

Based upon the remarks of the plaintiff’s counsel that counsel for the defendant lied to the jury and that he committed a fraud, we must reverse. Such comments were highly prejudicial and improper. “It is well-established that where remarks of a highly prejudicial and inflammatory nature are made by counsel during the course of a jury trial, reversal for a new trial must be ordered.” Skislak v. Wilson, 472 So. 2d 776, 778 (Fla. 3d DCA 1985).

The conduct of the plaintiff’s counsel in this case devastated any chance the defendant might have had to secure a fair trial in front of a jury who had been told not to trust the defendant’s counsel. These derogatory remarks about opposing counsel will not be condoned. See Carnival Cruise Lines, Inc. v. Rosania, 546 So. 2d 736 (Fla. 3d DCA 1989); Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), rev. denied, 488 So. 2d 832 (Fla.1986). The remarks were of the nature and type that neither a rebuke nor a retraction of the comments would “destroy their prejudicial and sinister influence.” Eastern Steamship Lines, Inc. v. Martial, 380 So. 2d 1070, 1072 (Fla. 3d DCA 1980), cert. denied, 388 So. 2d 1115 (Fla.1980). Therefore, a new trial must be ordered.

In remanding this case for retrial, we feel it is appropriate to provide guidance to the trial court on other issues raised by the parties on this appeal. First, we agree with the appellant’s position that the plaintiffs optometrist was not competent to give medical-type opinions as to the cause of the plaintiff’s postoperative condition. Clearly, the causation testimony elicited from him should only be elicited from a qualified ophthalmologist, not an optometrist. The trial court should not have allowed such testimony regarding the plaintiffs condition. Secondly, based upon the facts of this case, the trial court would be correct to sustain an objection by the plaintiff to the giving of a comparative negligence jury instruction. There is no evidence in this record to sustain a finding of comparative negligence on the part of the plaintiff. It must be noted, however, that the giving of the comparative negligence instruction is not a basis for reversal herein. Plaintiffs counsel failed to object to this instruction at trial and, therefore, did not preserve the issue for our review.

For the reasons stated herein, we reverse the trial court’s denial of the defendant’s motion for a new trial and remand this ease for a new trial.


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Citator

Cited By (12 total)

  • Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA 1994)
    …o “some nickel and dime carnival” throwing “pixie dust” to delude the jurors. Cf. Borden, Inc., supra, at 851, n. 4. Opposing counsel was accused of treating the jurors as through they were “fools” and “idiots.” See Sun Supermarkets, Inc. v. Fields, 568 So. 2d 480, 481 (Fla. 3d DCA 1990), rev. denied, 581 So. 2d 164 (Fla.1991). More egregious yet were the inflammatory characterizations of the incident itself, which insinuated infliction of an intentional injury. Repeated references were made to WDW having “r…
  • Owens Corning Fiberglas Corp. v. Morse, 653 So. 2d 409 (Fla. 3d DCA 1995)
    …orse’s responses “had to have been told by his attorneys.” These comments are similar to calling plaintiffs’ counsels liars, and accusing the plaintiffs’ counsels of perpetrating a fraud upon the court and jury. In Sun Supermarkets, Inc. v. Fields, 568 So. 2d 480 (Fla. 3d DCA 1990), rev. denied, 581 So. 2d 164 (Fla.1991), plaintiffs counsel stated that the defendant’s counsel had “lied to the jury and that he committed a fraud upon the court and jury.” This court stated: [t]he conduct of the plaintiffs coun…
  • Venning v. Oradell ROE, 616 So. 2d 604 (Fla. 2d DCA 1993)
    …rt. Such comments have not been condoned by other district courts and will not be condoned by this court. See Schubert v. Allstate Ins. Co., 603 So. 2d 554 (Fla. 5th DCA), rev. dismissed, 606 So. 2d 1164 (Fla.1992); Sun Supermarkets, Inc. v. Fields, 568 So. 2d 480 (Fla. 3d DCA 1990), rev. denied, 581 So. 2d 164 (Fla.1991); Moore v. Taylor Concrete & Supply Co., Inc., 553 So. 2d 787 (Fla. 1st DCA 1989); Maercks v. Birchansky, 549 So. 2d 199 (Fla. 3d DCA 1989); Fla.Bar R.Prof. Conduct 4-3.4(e). See also Griffit…

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