CHARLES M. FISCHMAN, M.D., APPELLANT,
v.
JOHN S. SUEN, M.D., APPELLEE

Fla. 4th DCA | 1996-05-01
No. 95-0776
POLEN and STEVENSON, JJ., concur.
672 So. 2d 644 Florida District Court of Appeal, Fourth District (1996) Positive Treatment
Cited by 13 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida District Court of Appeal reversed a jury verdict for Dr. Suen, finding that his violation of a pretrial order by mentioning unsubstantiated medicare fraud allegations was egregious enough to warrant a new trial. The court also affirmed the trial court's decision to strike the liquidated damages clause as a penalty.


Holding

Yes, Dr. Suen's violation of the pretrial order was egregious and prejudiced Dr. Fischman, requiring a new trial. Yes, the $250,000 liquidated damages clause was an unenforceable penalty.


Headnotes

[1] A violation of a motion in limine order, particularly one involving an unsubstantiated accusation of criminal conduct, can be sufficiently egregious to warrant a new tria…

[2] A motion in limine is appropriate for evidence that is highly prejudicial and unlikely to be disregarded by a jury despite a curative instruction.

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Key Quotes

“The unsubstantiated allegation of medicare fraud is precisely the type of inflammatory matter which should be extinguished by an order in limine.”

Establishes the nature of the evidence and the purpose of the motion in limine.

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Facts & Procedural History

Dr. Fischman hired Dr. Suen under a contract with restrictive covenants. Suen sued Fischman for unpaid wages, and Fischman counterclaimed for liquidat…

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Opinion of the Court
GROSS, Judge.

GROSS, Judge.

Needing assistance in his medical practice, Dr. Charles Fisehman hired Dr. John Suen as an associate. They entered into a written employment contract which contained two restrictive covenants. The first provided that if the employment terminated for any reason, Suen would not interfere with the practice’s relationships with patients, referring doctors or health organizations. The second precluded Suen from practicing in Indian River County for one year after his employment with Fisehman ended. The contract allowed Suen to buy out the restrictive covenants by paying $250,000.

The relationship crumbled and Suen sued Fisehman for unpaid wages and rescission of the contract. Fischman’s counterclaim sought $250,000 in liquidated damages for violation of the restrictive covenants. In his complaint and during the pretrial phases of the lawsuit, Suen maintained that his termination of the relationship was justified because Fisehman wanted him to engage in medicare fraud. No fact developed during discovery supported the charge of illegal conduct. Before trial, Fisehman moved in li-mine to preclude Suen from mentioning anything about medicare fraud. The trial court granted the motion.

At the jury trial, explaining why he left the practice, Suen listed several reasons and ended with the statement that he was “very uncomfortable because [Fisehman] told me basically to commit medicare fraud.” Fiseh-man timely objected. The trial court instructed the jury to disregard everything about medicare fraud and denied Fischman’s motion for mistrial, acknowledging that the issue was close. Although testimony conflicted, the trial court believed Suen’s expert and ruled that the $250,000 liquidated damage claim was unenforceable as a penalty, so that the jury was to determine actual damages if they found Suen in breach of the employment contract. The jury returned a verdict ⅛ favor of Suen.1

Fisehman’s main point on appeal concerns Suen’s violation of the pretrial order. A motion in limine is especially appropriate when addressed to evidence which will be highly prejudicial to the moving party and which, if referred to in a question which the court rules inadmissible, would be unlikely to be disregarded by the jury despite an instruction by the court to do so.

Ehrhardt, Florida Evidence § 104.5 (1995 Ed.). The unsubstantiated allegation of medicare fraud is precisely the type of inflammatory matter which should be extinguished by an order in limine. Fischman’s counsel alertly secured a ruling which should have insured a fair trial. Obtaining a pretrial order conserves the jury’s time and serves as a firm warning to a party not to take the first step toward mistrial or reversal. A practical advantage of a motion in limine is not having to object in the jury’s presence to evidence which is logically relevant but legally inadmissible.2 Being human, jurors typically want to hear all the evidence pertaining to a case. By using a motion in limine, a prudent lawyer can avoid giving the jury the impression that he is concealing something crucial.

Courts have reversed for violations of orders in limine involving subsequent remedial measures and disclosure of a traffic homicide investigator’s conclusions. Walt Disney World Co. v. Blalock, 640 So. 2d 1156,1158-59 (Fla. 5th DCA 1994); Ratley v. Batchelor, 599 So. 2d 1298, 1301-02 (Fla. 1st DCA 1991). These types of in limine violations are less flagrant than Suen’s, which involves an accusation of criminal conduct difficult for a jury to ignore. While a curative instruction might alleviate a more benign evidentiary gaffe,3 the instruction in this case may have amplified the prejudice to Fischman.4 This was a close case. The credibility of the two doctors was central to the contract issues presented to the jury. Suen’s violation of the pretrial order was egregious enough to entitle Fiseh-man to a new trial.

On the remaining issue, we find no error in the trial judge’s conclusion that the liquidated damage clause was unenforceable as a penalty. We reverse and remand for a new trial on Fischman’s contract claim and on actual damages suffered by Fischman if Suen is found to be in breach.

POLEN and STEVENSON, JJ., concur. . Suen's action for unpaid wages was settled after the trial.

. We note that under Maharaj v. State, 597 So. 2d 786, 790 (Fla.1992), where a motion in limine to exclude evidence has been denied, an objection must be made at trial when the evidence is introduced to preserve the issue for appellate review.

. Cf. Tate v. Gray, 292 So. 2d 618, 619 (Fla. 2d DCA 1974).

. The futility of a curative instruction in this instance was best expressed by the trial judge who explained, “[Y]ou can throw a skunk into the jury box and instruct the jurors not to smell it, but it doesn’t do any good.” Walt Disney World Co., 640 So. 2d at 1159, n. 1, quoting O’Rear v. Fruehauf Corp., 554 F. 2d 1304, 1309 (5th Cir. 1977).


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Citator

Cited By

  • Leyva v. Samess, 732 So. 2d 1118 (Fla. 4th DCA 1999)
    …dvisement and later issued the order being appealed in this case. In that order granting a new trial, the court determined that one party’s “egregious” violation of an order in limine entitled the other party to a new trial, citing Fischman v. Suen, 672 So. 2d 644, 646 (Fla. 4th DCA 1996). Finding that Leyva’s attorney had violated the order by referring to Ronald Samess as a doctor, the court found: Once the jury had heard the reiterated information that RONALD SAMESS was a physician, in conjunction with it…
  • Denmark v. State, 927 So. 2d 1079 (Fla. 2d DCA 2006)
    …2d 94, 95 (Fla. 3d DCA 1977) (holding improper remarks of prosecutor were of such character that neither objection nor curative instruction could entirely destroy their sinister influence; mistrial motion should have been granted); Fischman v. Suen, 672 So. 2d 644, 646 (Fla. 4th DCA 1996) (discussing futility of curative instruction in context of evidence of other illegal conduct). Evidence of prior bad acts — Williams2 rule evidence — consists of prior conduct that may be admissible when relevant to prove a…
  • …ed materials in the jury room affected the verdict). Evidence that suggests past criminal conduct is of such a character as to influence a jury, particularly where the credibility of a witness or a party is an important issue. See Fischman v. Suen, 672 So. 2d 644, 646 (Fla. 4th DCA 1996) (new trial granted after plaintiff violated an order in limine prohibiting him from mentioning that his former employer had allegedly requested he commit medicare fraud). In this case, the credibility of MCI’s principals wa…

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