OWENS-CORNING FIBERGLAS CORPORATION, APPELLANT,
v.
CHARLES MCKENNA, ET AL., APPELLEES
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Owens-Corning Fiberglas Corporation appealed a jury verdict holding it liable for negligence and strict liability in an asbestos exposure case, seeking reversal based on improper opening statements by plaintiff's counsel, exclusion of defendant's expert witness, and an allegedly excessive damages award. The Florida appellate court affirmed the judgment, finding no error in the trial court's rulings.
The court affirmed the judgment on all grounds, finding: (1) plaintiff's counsel's comment was a justified defense against defense counsel's improper disparagement of asbestos litigation and lawyers; (2) the trial court properly excluded the expert testimony due to defendant's failure to comply with discovery deadlines and court orders; and (3) the damages award was supported by competent substantial evidence of devastating injuries.
[1] A party's characterization of opposing counsel's argument as "unethical" may not warrant a new trial when it is a response to the opponent's disparaging remarks about the…
[2] A trial court does not abuse its discretion by excluding an expert witness's testimony when the party fails to comply with court orders to produce the expert's report bef…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While it is perfectly permissible for trial attorneys to point out perceived discrepancies in the evidence introduced at trial and opposing counsel's characterization of the same, it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury in the process.”
Establishes the general rule against improper attacks on opposing counsel, which the court applied when analyzing plaintiff's counsel's characterization of defense counsel's comments
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCharles McKenna was exposed to asbestos-containing Owens-Corning products (Kaylo pipe covering and block) while working in construction between 1955 a…
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JORGENSON, Judge.
Owens-Corning Fiberglas Corp. appeals from a final judgment entered on a jury verdict. We affirm.
Charles McKenna, the plaintiff below, was exposed to asbestos while working as a pipe-fitter apprentice, foreman, and superintendent at a construction company between 1955 and 1972. The Owens-Corning products to which he was exposed were Kaylo pipe covering and Kaylo block, pipe insulation materials that contained asbestos as a strengthening and binding agent. He was diagnosed with asbestosis in 1993 and suffered from shortness of breath and “clubbing” of his fingers, a condition resulting from asbestosis that causes fingers and fingernails to become deformed and discolored. By the time of trial, plaintiffs breathing was only 62% of normal and was decreasing. He was expected to live only another ten years, and over those ten years, would experience a slow and painful death.
McKenna sued Owens-Corning for negligent failure to warn and strict liability. The jury found Owens-Corning liable on both the strict liability and the negligence counts; assessed one million dollars for past pain and suffering, and four million dollars for future pain and suffering. The trial court entered judgment in accordance with the verdict and denied Owens Coming’s post trial motions. We find no error in the trial court’s rulings, and affirm.
Opening Argument
The comment made by plaintiffs counsel in opening argument does not require reversal and a new trial. During opening argument, counsel for Owens-Corning made various disparaging remarks about asbestos litigation, including the following:
The people started to get sick and there was a rash of litigation. You will hear that there was a whole industry built on the litigation. Doctors and lawyers became dependent on ... this litigation for their living.
In Mr. McKenna’s case, litigation generated the disease. Let’s think about that.
If you have any doubts as you listen to the evidence, listen to the evidence carefully whether you believe the disease generated the litigation or the litigation generated the disease.
You will hear testimony from Dr. Mezey in this case who is the only doctor that plaintiffs will bring you. You will hear that Dr. Mezey has been testifying for plaintiffs lawyers for approximately 10 years, plaintiffs lawyers like Mr. Ferraro and others. You will hear that for ten years he has been seeing approximately two asbestos plaintiffs a week at the cost of $1,500 a visit, that if you add that up, that comes up to almost $1 million.
Plaintiffs counsel repeatedly objected to these comments; the trial court overruled his objections and denied his motions for cura tive instructions. At one point during his objections, plaintiffs counsel stated “Just for the record, I think this is the most unethical opening statement I have ever heard.”
Owens-Corning argues on appeal that this last comment by plaintiffs counsel was so prejudicial and inflammatory that this court must reverse and remand for a new trial. We disagree. Even assuming that the issue was preserved for appellate review, plaintiffs counsel’s characterization of defendant’s comments in opening argument does not merit a new trial. See Owens-Corning Fiberglas Corp. v. Crane, 683 So. 2d 552, 555 (Fla. 3d DCA 1996) (“While it is perfectly permissible for trial attorneys to point out perceived discrepancies in the evidence introduced at trial and opposing counsel’s characterization of the same, it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury in the process.”); Owens Corning Fiberglas Corp. v. Morse, 653 So. 2d 409, 411 (Fla. 3d DCA) (holding that comments accusing opposing counsel of “trickery” and “hiding the ball” deprived plaintiff of fair trial), rev. denied, 662 So. 2d 932 (Fla.1995). However, in this case, it was Owens-Corning’s counsel who repeatedly denigrated asbestos litigation and lawyers who tried asbestos cases. By calling the defendant’s argument “unethical,” plaintiffs lawyer was simply defending himself and his client’s case against a barrage of blatant improprieties by his opponent. His comment was an accurate description of defense counsel’s tirade. In fact, had the jury found for Owens-Corning instead of reaching a verdict for the plaintiff, Owens-Corning’s comments would have laid the foundation for a reversal based upon the very cases that it relies upon in its brief.
Exclusion of Owens-Coming’s Expert Witness
The trial court did not abuse its discretion in excluding the testimony of defendant’s expert medical witness, Dr. Howard. Three days before trial, Dr. Howard had not yet examined Mr. McKenna. On December 5, Dr. Howard conducted the examination. The court ordered Owens-Corning to produce Dr. Howard’s written report by 5 p.m. on Saturday, December 6, two days before trial; Owens-Corning agreed to comply. Owens-Corning did not comply -with that court order. The trial court gave Owens-Corning'one last opportunity to produce its expert’s written report before trial began. On the morning of the first day of trial, before jury selection commenced, the court ordered Owens-Corning to produce the written medical report by noon. Owens-Corning neither complied with the court’s order nor requested a continuance. Plaintiffs counsel moved to exclude any testimony from Dr. Howard or any other evidence about his medical examination of Mr. McKenna. The court granted plaintiffs motion, and in so doing, acted well within its broad grant of discretion. Had the court allowed Dr. Howard to testify without affording the plaintiff time before trial to read and analyze the report, the admission of that testimony would have been inherently prejudicial.
Clearly, except under extraordinary circumstances which do not exist here, the lawyers have a right to expect that once a trial commences, discovery and examinations must cease. The lawyers who make the opening statement must have a reasonably firm idea of what the evidence will show. Liberal rules of discovery assure this. Once the trial starts the lawyers are engaged in the unfolding of the evidence they have already collected. That is why there are discovery cutoffs. All the discovery rules and the extensive efforts of parties to discover the other party’s case would be for naught if one side were able to wait until after the trial started to establish key pieces of evidence such as what occurred in this case.
Grau v. Branham, 626 So. 2d 1059, 1061 (Fla. 4th DCA 1993). See also Office Depot, Inc. v. Miller, 584 So. 2d 587, 589 (Fla. 4th DCA 1991) (holding that trial judge has broad discretion in deciding whether to permit or exclude witness’ testimony; discovery rules should be construed and 'utilized to avoid “trial by ambush”).
The Jury’s Award of Damages
The trial court properly denied Owens-Corning’s motions for a new trial or a remittitur. There is competent substantial evidence to support the jury’s award of damages. “Under our system, it is ordinarily, indeed almost invariably, the jury which is entrusted with the function of determining how much is enough and how much is too little or too much for the damages that have been demonstrated and described in the courtroom.” Oakes v. Pittsburgh Coming Corp., 546 So. 2d 427, 429 (Fla. 3d DCA 1989) (emphasis in original). In this case, as in Oakes, “it is perfectly plain that the injuries and damages to the plaintiffs well-being, to his right to freedom from physical and mental pain, and to the enjoyment of the remainder of his life were utterly devastating.” Id. at 429. Although the jury verdict was admittedly large in this case, the trial court acted well within its discretion in denying the post-trial motions.
AFFIRMED.
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Thompson v. Wal-Mart Stores, Inc., 60 So. 3d 440 (Fla. 3d DCA 2011)…orderly and efficient trial of the case (or other cases). Id. at 1314. We have previously condemned the practice of allowing experts to develop or change their opinion during, or shortly before, trial. In Owens-Corning Fiberglas Corp. v. McKenna, 726 So. 2d 361, 363 (Fla. 3d DCA 1999), we held that the trial court properly excluded an expert who examined the plaintiff three days before trial and failed to provide a report of his examination before trial began. Similarly, in Agrofollajes, S.A. v. E.I. Du Po…
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Gonzalez v. State, 777 So. 2d 1068 (Fla. 3d DCA 2001)…e, the state’s expert was permitted to testify to new matters that were key to the state’s case without any warning or notice to the opposition. The admission of this testimony is inherently 'prejudicial. See Owens-Coming Fiberglas Corp. v. McKenna, 726 So. 2d 361 (Fla. 3d DCA 1999).1 Here the state was permitted to present opinion on a totally unexplored and undisclosed topic for this witness. This was “tantamount to permitting an undisclosed adverse witness to testify.” Department of Health & Rehab. Servs.…
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Vorsteg v. Thomas, 853 So. 2d 1102 (Fla. 4th DCA 2003)…, 614 So. 2d 495, 498 (Fla.1993). A damages award supported by competent, substantial evidence should be affirmed. See Perma Builders, Inc. v. JBM Assocs., 472 So. 2d 1381, 1383 (Fla. 4th DCA 1985); see also Owens-Corning Fiberglas Corp. v. McKenna, 726 So. 2d 361, 363-64 (Fla. 3d DCA 1999). We also conclude that the award in this case is not so excessive as to shock the judicial conscience, given the severe injuries to appellee and the future care required. See Allstate Ins. Co. v. Shilling, 374 So. 2d 611,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Off. Depot, Inc. v. Miller, 584 So. 2d 587 (Fla. 4th DCA 1991)
- Gerard D. Grau, M.D. v. Branham, 626 So. 2d 1059 (Fla. 4th DCA 1993)
- Owens Corning Fiberglas Corp. v. Morse, 653 So. 2d 409 (Fla. 3d DCA 1995)
- Oakes v. Pittsburgh Corning Corp., 546 So. 2d 427 (Fla. 3d DCA 1989)
- Riles v. State, 683 So. 2d 552 (Fla. 1st DCA 1996)
- Owens-Corning Fiberglas Corp. v. Crane, 683 So. 2d 552 (Fla. 3d DCA 1996)