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
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In this medical malpractice case, the plaintiff appealed a jury verdict rendered in favor of her radiologist, radiology group, and hospital following surgery where her bile duct was severed. The supreme court remanded for reconsideration under the stricter Murphy standard for reviewing unobjected-to closing argument errors, and the appellate court affirmed the original judgment.
The court affirmed the judgment, holding that to obtain a new trial based on unobjected-to closing argument, the appellant must establish that the challenged argument was improper, harmful, incurable, and so damaged the fairness of the trial that the public's interest in the system of justice requires a new trial. Sawczak failed to meet this standard.
[1] A party seeking a new trial based on an unobjected-to closing argument must establish that the argument was improper, harmful, incurable, and so damaged the fairness of t…
[2] Appellate courts review a trial court's grant or denial of a new trial based on unobjected-to closing argument under an abuse of discretion standard.
Previewing 2 of 3 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“before a party may receive a new trial based on an unobjected-to closing argument, as here, it must establish that the challenged argument was "improper, harmful, incurable, and so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial."”
The four-part test established by Murphy for reviewing unobjected-to closing argument claims on appeal
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Join FLexlaw to unlock all legal intelligenceShirley Sawczak underwent routine gall bladder surgery in 1992, during which her bile duct was completely severed. She recovered a $4 million judgment…
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POLEN, J.
In this medical malpractice action, Shirley Sawczak appealed from a jury verdict and judgment rendered in favor of her radiologist, the radiology group, and the hospital where she underwent what was supposed to be routine gall bladder surgery in 1992. (Her bile duct was completely severed during surgery.) Although she was awarded $4 million against a fourth defendant, her surgeon, she argued she was entitled to a new trial as to the other defendants on several grounds, including error 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 Murphy, the court, approving this court’s prior decision in the same case,1 held that before a party may receive a new trial based on an unob-jected-to closing argument, as here, it must establish that the challenged argument was “improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Id. at 1031. The court explained,
[A]n appellate court must employ an abuse of discretion standard of review when considering the correctness of the trial court’s grant or denial of a new trial based on unobjected-to closing ar gument. Although we have not absolutely “closed the door” on appellate review of unpreserved challenges to closing argument, we have come as close to doing so....
Id.
As we did in our prior decision in this case, we affirm on the basis of the supreme court’s more recent Murphy opinion. Simply put, Sawczak failed to demonstrate that the challenged arguments were “improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.”
AFFIRMED.
DELL and HAZOURI, JJ., concur. . Murphy v. International Robotics Systems, Inc., 710 So. 2d 587 (Fla. 4th DCA 1998).
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Little v. Davis, 260 So. 3d 1139 (Fla. 1st DCA 2018)…y must successfully establish the four criteria outlined in Murphy before the trial court can grant the party’s motion for new trial); Mercury Ins. Co. of Florida v. Moreta, 957 So. 2d 1242, 1250 (Fla. 2d DCA 2007) (same); Sawczak v. Goldenberg, 781 So. 2d 450, 451 (Fla. 4th DCA 2001) (same). 9 Further, our review of the record establishes that in this case, the four requirements of the Murphy test cannot be met. 1. Improper conduct With regard to the first prong of the Murphy test, the…
Authorities Cited
- Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)
- Murphy v. Int'l Robotics Sys., Inc., 710 So. 2d 587 (Fla. 4th DCA 1998)
- Sawczak v. Alan L. Goldenberg, M.D., 710 So. 2d 996 (Fla. 4th DCA 1998)