SHIRLEY SAWCZAK, APPELLANT,
v.
ALAN L. GOLDENBERG, M.D., ALAN L. GOLDENBERG, M.D., P.A., J. STERNBERG AND S. SCHULMAN, M.D. CORP., ALAN ALARCON, M.D. AND HUMANA INC. D/B/A/ WESTSIDE REGIONAL MEDICAL CENTER, F/K/A HUMANA HOSPITAL BENNETT, APPELLEES

Fla. 4th DCA | 1998-04-15
No. 96-2253
GLICKSTEIN and DELL, JJ., concur.
710 So. 2d 996 Florida District Court of Appeal, Fourth District (1998) Positive Treatment
Cited by 6 cases

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Holding

The court held that the appellant waived any error regarding improper closing arguments by failing to object contemporaneously and specifically to most of the remarks. The court also found that the remaining issues raised on appeal lacked merit.


Headnotes

[1] Failure to contemporaneously object to improper closing arguments generally waives the issue for appeal, even if the comments are egregious.

[2] To preserve an issue for appeal, the specific legal argument to be raised on appeal must have been presented to the lower court.

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Facts & Procedural History

Plaintiff Sawczak sustained injuries during gall bladder surgery and sued multiple defendants, including a radiologist, radiology group, and hospital,…

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Opinion of the Court
POLEN, Judge.

POLEN, Judge.

Appellant, Shirley Sawczak, appeals from a jury verdict and judgment rendered in favor of appellees, Alan Alarcon, M.D. (“radiologist”), J. Sternberg & S. Schulman, M.D. Corp. (“radiology group”), and Humana, Inc. (“hospital”), in this hotly contested medical malpractice action arising from injuries Sawczak sustained after her common bile duct was completely severed during routine gall bladder surgery in 1992. Although she was awarded $4 million against a fourth defendant, Alan L. Goldenberg, M.D., her surgeon, she alleges error warranting a new trial occurred in the three other defendants’ closing arguments, their cumulative expert testimony, and the court’s failure to give her requested special jury instruction on agency. We affirm on all points raised.

Sawczak first claims that the court should have granted her a new trial based on defense counsel’s improper remarks during closing arguments. These remarks fell within a host of categories, including appeals to the community conscience of the jury, expression of counsel’s personal beliefs, and reference to facts not in evidence. Although her attorney failed to object specifically to almost all of these statements, she argues that the cumulative effect of such comments constituted fundamental error. While we agree with Sawczak that many of defense counsel’s arguments were improper and often egregious, her attorney’s failure to object specifically and contemporaneously to them waived any error that occurred. See Murphy v. Int’l Robotics Systems, Inc., 710 So. 2d 587 (Fla. 4th DCA 1998); Nelson v. Reliance Ins. Co., 368 So. 2d 361 (Fla. 4th DCA 1978).

The only comments to which her attorney objected specifically and contemporaneously occurred during the following exchange:

RADIOLOGIST’S COUNSEL: It’s important that you understand that [Sawc-zak’s expert] has been hired by these folks for years. His job is to come in and put big numbers up ... He’s clueless. He has no idea. He comes in — do you remember him? The feisty little guy with the beard? Do you remember him? Would you think he was a credible and likable witness? Did you think that he made an effective credible and believable guy?

SAWCZAK’S COUNSEL: I object, the golden rule for about the last ten minutes.

RADIOLOGIST’S COUNSEL: Ask yourself-ask yourself-

COURT: Counsel, could you please refrain from such comments. Please proceed.

RADIOLOGIST’S COUNSEL: Ask yourselves when you go back: Do you think that this guy is a credible, believable witness? Or is he a hired gun who was asked to put the biggest numbers he can conceivably think of up on the board?

SAWCZAK’S COUNSEL: Judge, I object.

The trial court sustained her objection, and sua sponte instructed the jury to disregard the comment. Sawczak then moved for a mistrial, coupled with a request that the court reserve ruling on the motion until after the jury rendered its verdict. The court denied the request and told Sawczak, in essence, to “fish or cut bait.” Sawczak then withdrew her motion. After the jury exonerated all three defendants of liability, she moved for a new trial, which was denied.

While we find the above comments are not golden rule-type arguments, Sawczak still argues that they constituted an improper attack on the credibility of her expert and otherwise violated Rule 4-3.4(e) of the Rules Regulating the Florida Bar.1 See Airport Rent-A-Car, Inc. v. Lewis, 701 So. 2d 893 (Fla. 4th DCA 1997). Sawczak’s attorney failed, however, to assert these grounds as a basis for his objections at trial. Again, without reaching the merits of her argument, we find her attorney did not preserve this issue for appeal. See Tillman v. State, 471 So. 2d 32 (Fla.1985)(holding that, to be preserved for appeal, an issue must be presented to the lower court and the specific legal argument to be argued on appeal must be part of that presentation).

As to Sawczak’s remaining points on appeal, we affirm. See Webb v. Priest, 413 So. 2d 43 (Fla. 3d DCA 1982); Florida Power & Light Co. v. McCollum, 140 So. 2d 569 (Fla.1962).

AFFIRMED.

GLICKSTEIN and DELL, JJ., concur. . That rule provides:

A lawyer shall not:
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.

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Cited By

  • Fulgencio Padilla, Sr. v. Buell, 797 So. 2d 609 (Fla. 3d DCA 2001)
    …rd, and thus seeks to overturn the jury’s verdict. We find that the failure of plaintiffs counsel to object with specificity to defense counsel’s remarks during closing argument waived any error that might have occurred. See Sawczak v. Goldenberg, 710 So. 2d 996, 997 (Fla. 4th DCA 1998). Moreover, the implied reference to insurance matters in this case was not fundamental error requiring reversal. See Melara v. Cicione, 712 So. 2d 429, 431 (Fla. 3d DCA 1998). We also find no abuse of discretion in the tri…
  • Sawczak v. Alan L. Goldenberg, M.D., 781 So. 2d 450 (Fla. 4th DCA 2001)
    …she claimed occurred during closing arguments. While she conceded that her attorney failed to object to most of these statements, she maintained their cumulative effect constituted fundamental error warranting a new trial. In Sawczak v. Goldenberg, 710 So. 2d 996 (Fla. 4th DCA 1998), we affirmed on all points raised. Subsequently, the supreme court ordered us to reconsider our decision in light of the court’s recent opinion in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla.2000). In Mur…
  • Sawczak v. Goldenberg, 775 So. 2d 290 (Fla. 2001)
    …LEWIS, J. We have for review Sawczak v. Goldenberg, 710 So. 2d 996 (Fla. 4th DCA 1998), which has been presented to the Court on the basis of express and direct conflict with multiple cases which have addressed and decided the issue of whether unobject-ed to, improper comments made during closing argument rise to a…

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