ALLEN R. SLEDGE, APPELLANT/APPELLEE/CROSS-APPELLEE,
v.
GEORGE L. RICHARDS, M.D., APPELLEE/ APPELLANT/CROSS-APPELLANT
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The court reversed the trial court's denial of a motion for new trial under Rule 1.540(b) because the plaintiff gave false testimony regarding his employment status and physical condition, warranting a new trial based on newly discovered evidence of the opposing party's perjury.
A party is entitled to a new trial under Florida Rule of Civil Procedure 1.540(b) when the opposing party's false testimony is discovered, as a party need not anticipate such perjury.
[1] A new trial is warranted under Florida Rule of Civil Procedure 1.540(b) when the prevailing party's false testimony is discovered, as the opposing party is not required t…
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Join FLexlaw to unlock all legal intelligence“A party is not required to anticipate false testimony from an opposing party and a new trial is warranted on the ground of newly discovered evidence, where it is shown that the prevailing party gave or used false testimony.”
Establishing the legal standard for granting new trials based on opposing party's perjury under Rule 1.540(b)
Plaintiff Allen Sledge testified at trial regarding his employment status and physical condition, and his expert relied on that testimony. The record …
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PER CURIAM.
George L. Richards, M.D., appeals a non-final order denying his motion filed pursuant to Florida Rule of Civil Procedure 1.540(b).
We reverse. “A party is not required to anticipate false testimony from an opposing party and a new trial is warranted on the ground of newly discovered evidence, where it is shown that the prevailing party gave or used false testimony.” McFarlin v. Jack Eckerd Corp., 581 So. 2d 181, 182 (Fla. 3d DCA 1991).
The record establishes that in his testimony, plaintiff Allen Sledge misrepresented his employment status and his physical condi tion at the time of trial. In addition, Sledge’s expert testified in reliance on that inaccurate information.
Thus, the trial court abused its discretion in failing to grant Dr. Richards’ Rule 1.540(b) motion founded on Sledge’s misrepresentation. See Alston v. Shiver, 105 So. 2d 785 (Fla.1958); Kline v. Belco, Ltd., 480 So. 2d 126 (Fla. 3d DCA 1985), review denied, 491 So. 2d 278 (Fla.1986); Roberto v. Allstate Ins. Co., 457 So. 2d 1148 (Fla. 3d DCA 1984); Fla.R.Civ.P. 1.540(b). For this reason, we reverse and remand for a new trial. Our resolution of this issue renders it unnecessary to reach the remaining issues.
We note, however, that it was improper for plaintiff’s counsel to “assertf ] his personal opinion as to ... the justness of his client’s cause....” Maercks v. Birchansky, 549 So. 2d 199, 199 (Fla. 3d DCA 1989); Miami Coin-O-Wash, Inc. v. McGough, 195 So. 2d 227 (Fla. 3d DCA 1967).
Reversed and remanded.
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ACandS, Inc. v. Redd, 703 So. 2d 492 (Fla. 3d DCA 1997)…efense of the consortium claim. Whether these material mispresentations are considered individually or collectively, defendant is entitled to a new trial. See Southern Trenching, Inc. v. Diago, 600 So. 2d 1166 (Fla. 3d DCA 1992); Sledge v. Richards, 592 So. 2d 316 (Fla. 3d DCA 1991); McFarlin v. Jack Eckerd Corp., 581 So. 2d 181 (Fla. 3d DCA 1991); Kline v. Belco, Ltd., 480 So. 2d 126 (Fla. 3d DCA 1985); Roberto v. Allstate Ins. Co., 457 So. 2d 1148 (Fla. 3d DCA 1984); Gaiter v. Winn Dixie Stores, Inc., 376 S…
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S. Trenching, Inc. v. Diago, 600 So. 2d 1166 (Fla. 3d DCA 1992)…e same injuries. He thus falsely misled the [*1167] court and jury that his damages could have been caused only by the defendant’s negligence. No legal proceeding which is infected by conduct of this kind may or will be approved. Sledge v. Richards, 592 So. 2d 316 (Fla. 3d DCA 1991), and cases cited; Office Depot, Inc. v. Miller, 584 So. 2d 587 (Fla. 4th DCA 1991); McFarlin v. Jack Eckerd Corp., 581 So. 2d 181 (Fla. 3d DCA 1991); Colonnell v. Mitchels, 317 So. 2d 799 (Fla. 2d DCA 1975); see Smith v. Universit…
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Michael A. Szczesny, M.D. v. Goldenberg, 614 So. 2d 523 (Fla. 3d DCA 1992)…testimony is merely impeachment testimony of Dr. Bader. The newly discovered evidence has no bearing on Dr. Szczes-ny’s testimony or his representations. See Southern Trenching, Inc. v. Diago, 600 So. 2d 1166 (Fla. 3d DCA 1992); Sledge v. Richards, 592 So. 2d 316 (Fla. 3d DCA 1991), review denied, 605 So. 2d 1266 (Fla. 1992). Dr. Bader was not offered as an expert witness as to the standard of care Mrs. Goldenberg received from Dr. Szczes-ny. Thus, his testimony would not affect the jury’s analysis of Dr. Sz…
Authorities Cited
- Alston v. Trillie Shiver, 105 So. 2d 785 (Fla. 1958)
- Miami Coin-O-Wash, Inc. v. McGOUGH, 195 So. 2d 227 (Fla. 3d DCA 1967)
- Ralph Maercks, M.D. & Ralph Maercks, M.D., P.A. v. Birchansky, 549 So. 2d 199 (Fla. 3d DCA 1989)
- Gonzalez v. State, 457 So. 2d 1148 (Fla. 3d DCA 1984)
- Lang v. Lang, 457 So. 2d 1148 (Fla. 3d DCA 1984)
- Shivers v. The Sch. Bd. OF Dade Cnty., 480 So. 2d 126 (Fla. 3d DCA 1985)
- Kline v. Belco, Ltd., 480 So. 2d 126 (Fla. 3d DCA 1985)
- Aquilla McFARLIN v. Jack Eckerd Corp., 581 So. 2d 181 (Fla. 3d DCA 1991)