HOWARD COHEN AND TARA L. COHEN, APPELLANTS,
v.
DAVID POLLACK AND MARLENE POLLACK, HIS WIFE, AS PARENTS AND NATURAL GUARDIANS OF BRITTANY POLLACK, A MINOR, APPELLEES
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The Cohen defendants appeal a jury verdict awarding nearly $200,000 in damages to the Pollacks for injuries sustained by their daughter Brittany in a car accident. The court reversed, finding that the trial court erred in directing a verdict on the permanency of injuries issue and that opposing counsel's improper closing remarks about pain and suffering, combined with repeated objectionable statements throughout trial, created cumulative error requiring a new trial.
The trial court erred in directing a verdict on the threshold issue of permanency of injuries because whether a facial scar constitutes disfigurement is ordinarily a factual question for jury determination. Additionally, the trial court erred in denying a mistrial motion because opposing counsel's improper statements throughout trial and during closing remarks—expressing personal opinions about pain and suffering—had a cumulative effect that tainted the trial.
[1] The permanency of injuries, including whether a facial scar constitutes a disfigurement, is a question of fact for the jury and not a matter of law.
[2] A trial court errs in directing a verdict on the issue of permanency of injuries under Florida's no-fault law when the issue is ordinarily a factual one.
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Join FLexlaw to unlock all legal intelligence“The issue of permanency is ordinarily a factual one... Specifically, whether a facial scar is a disfigurement is for the jury's observation and evaluation and is not subject to determination as a matter of law.”
Establishes that the trial court erred in directing a verdict on permanency because it is a factual question for the jury, not a legal question for the court.
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Join FLexlaw to unlock all legal intelligenceBrittany Pollack was injured in a car accident caused by Tara Cohen. Brittany sustained injuries including facial scarring. Brittany and her parents s…
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PER CURIAM.
Appellants, Howard and Tara Cohen, appeal a jury verdict awarding damages to appellees, David, Marlene, and Brittany Pollack. We reverse.
Brittany Pollack was riding in Tara Cohen’s car when Tara caused an accident resulting in injuries, including facial scarring, to Brittany. Brittany and her parents sued for damages and were awarded nearly $200,-000. Appellants argue that the trial court erred in granting a directed verdict for appellees and that appellees’ counsel’s closing remarks deprived them of a fair trial.
First, we find the trial court erred in directing a verdict for appellees on the threshold issue of permanency of injuries under Florida’s no-fault law. At trial, appel-lees presented expert testimony that the accident was the direct cause of Brittany’s injuries, while appellants countered that Brittany had most of the ailments before the accident.
The issue of permanency is ordinarily a factual one. See Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992); Martin v. Young, 443 So. 2d 293 (Fla. 3d DCA 1983). Specifically, whether a facial scar is a disfigurement is for the jury’s observation and evaluation and is not subject to determination as a matter of law. Gillman v. Gillman, 319 So. 2d 165 (Fla. 1st DCA 1975), cert. denied, 330 So. 2d 17 (Fla.1976). Thus, by directing a verdict in appellees’ favor, the trial court improperly removed this issue from the jury’s consideration.
Second, the trial court erred in not declaring a mistrial due to the cumulative effect of appellees’ counsel’s remarks during trial. Throughout the trial, appellees’ attorney made several statements that indicated his opinions and beliefs regarding the case.1 Then, during closing remarks, appellees’ counsel made the following comments:
How do you judge these damages? Let’s start with pain and suffering. Like [Brittany] felt when [her doctor] operated on her while she was at home for three weeks in agony, or most importantly, when these headaches keep coming and coming each day, each month. Try this. If a dentist told you he’s got to do a root canal and he’s only going to charge five dollars for the root canal and ninety-five dollars for the Novocain, you would pay that ninety-five dollars because I don’t want to — No one wants pain.
Appellants moved for a mistrial, which the trial court denied.
An attorney’s personal beliefs or feelings toward a case or the trial’s participants are irrelevant and create reversible error. See Owens Corning Fiberglas Corp. v. Morse, 653 So. 2d 409 (Fla. 3d DCA), rev. denied, 662 So. 2d 932 (Fla.1995); Kaas v. Atlas Chem. Co., 623 So. 2d 525 (Fla. 3d DCA 1993). Asking the jury to imagine the injured party’s anguish and frustration further constitutes reversible error. See State Farm Mut. Auto. Ins. Co. v. Curry, 608 So. 2d 587 (Fla. 3d DCA 1992); Klein v. Herring, 347 So. 2d 681 (Fla. 3d DCA 1977).
Here, during closing remarks, appellees’ attorney suggested that the jury should measure damages by considering the pain Brittany endured. This, when combined with the improper statements that were repeatedly permitted, had the cumulative effect of tainting the trial. See Murphy v. Murphy, 622 So. 2d 99 (Fla. 2d DCA 1993). Accordingly, we reverse the final judgment for a new trial.
Reversed and remanded for a new trial.
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Liggett Grp. Inc. v. Howard A. Engle, M.D., 853 So. 2d 434 (Fla. 3d DCA 2003)…(new trial required because plaintiffs’ counsel made disparaging remarks about the defendant). We have also held that it is improper for counsel to express personal opinions about a case or comment on matters not in evidence. See Cohen v. Pollack, 674 So. 2d 805, 806-07 (Fla. 3d DCA 1996) (an attorney’s personal beliefs or feelings about the case are irrelevant and constitute reversible error); R. Regulating Fla. Bar 4-3.4(e) (a lawyer shall not allude to any matter “that will not be supported by admissible…
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Carnival Corp. v. Pajares, 972 So. 2d 973 (Fla. 3d DCA 2007)…s “the ultimate gotchaism” by “whipsaw[ing] the plaintiff for not producing that very testimony”). These comments were also improper because counsel for Pajares expressed his personal opinions regarding the evidence presented. See Cohen v. Pollack, 674 So. 2d 805, 807 (Fla. 3d DCA 1996); Kaas v. Atlas Chem. Co., 623 So. 2d 525, 526 (Fla. 3d DCA 1993). 2. Comments suggesting that the tgpe of food Carnival served its crew members was the cause or a contributing factor to Pajares’ injury As stated previously,…1 / 2
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Airport Rent-A-Car, Inc. v. Jewel McNeal Lewis, 701 So. 2d 893 (Fla. 4th DCA 1997)…of the witness and the merits of his case. We hold that appellants were denied a fair trial as the result of the cumulative nature and effect of counsel’s improper comments and we reverse and remand this cause for a new trial. See Cohen v. Pollack, 674 So. 2d 805 (Fla. 3d DCA 1996); Pippin v. Latosynski, 622 So. 2d 566 (Fla. 1st DCA 1993); Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), rev. denied, 488 So. 2d 832 (Fla.1986). Campbell raises a separate argument concerning the admissibility of Brow…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Owens Corning Fiberglas Corp. v. Morse, 653 So. 2d 409 (Fla. 3d DCA 1995)
- Kaas v. Atlas Chem. Co., 623 So. 2d 525 (Fla. 3d DCA 1993)
- Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992)
- Martin v. Young, 443 So. 2d 293 (Fla. 3d DCA 1983)
- Klein v. Herring, 347 So. 2d 681 (Fla. 3d DCA 1977)
- Murphy v. Murphy, 622 So. 2d 99 (Fla. 2d DCA 1993)
- State Farm Mut. Auto. Ins. Co. v. Curry, 608 So. 2d 587 (Fla. 3d DCA 1992)
- Ries v. Ries, 319 So. 2d 165 (Fla. 4th DCA 1975)
- Gillman v. Cora Gillman, 319 So. 2d 165 (Fla. 1st DCA 1975)