JUSTIN A. LAZAROFF

v.

LARRY MEEK

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED JUSTIN A. LAZAROFF, Appellant, v. Case No. 5D23-19 LT Case No. 2016-CA-003882 LARRY MEEK, Appellee. ________________________________/ Opinion filed May 19, 2023 Appeal from Circuit Court for Duval County, Bruce R. Anderson, Jr., Judge. Warren B. Kwavnick and David F. Cooney, of Cooney Trybus Kwavnick Peets, Fort Lauderdale, and Michael P. Regan, Jr., Brian M. Guter, Tiffany M. Jones, and James D. Morgan, of Florida O’Hara Law Firm, Jacksonville, for Appellant. Rebecca Bowen Creed, of Creed & Gowdy, P.A., and Howard C. Coker, Daniel A. Iracki, Stephen Watrel, and Aaron Spraque, of Coker Law Firm, Jacksonville, for Appellee. PER CURIAM.

At issue in this car accident case is the trial court’s order granting a new trial based cumulatively on allegedly improper statements by defense counsel during the proceedings in the presence of the jury. The trial court described one category of statements as making the plaintiff’s age a theme of the trial, supposedly suggesting that Medicare would cover medical expenses; the other category suggested that the plaintiff was concealing evidence. The impact of improper evidence or argument must be so prejudicial as to vitiate the entire trial to warrant the grant of a new trial. Salazar v. State, 991 So. 2d 364, 372 (Fla. 2008); Barnes v. State, 303 So. 3d 275, 276 (Fla. 1st DCA 2020). On the trial record presented, the grant of a new trial was unwarranted because no sufficient basis exists to conclude that the statements individually or cumulatively rose to a level that demonstrated prejudice to the plaintiff. Moore v. Gillett, 96 So. 3d 933, 938 (Fla. 2d DCA 2012) (“[W]here a trial court’s finding of cumulative error is the basis for the alleged misconduct of defense counsel, and that finding is unsupported by the record, the reviewing court must reverse an order granting a new trial.”). The trial judge concluded that the defense made the plaintiff’s age a “theme” of the case, but the plaintiff, who was a sixty-five year old truck driver, was seeking only future economic and non-economic damages, thereby making age a factor in that analysis. Questions regarding life expectancy and retirement were to be anticipated. To some extent, the plaintiff’s counsel and expert interjected governmental benefits on their own questions.

In addition, many of the statements at issue were either incomplete or interrupted before they could possibly do any significant harm; and the trial judge gave strong curative instructions to minimize their potential impact. Moreover, several of the statements were made without objection from the plaintiff, reflecting a potential lack of prejudice. Some of the statements were cut off unilaterally by the trial judge before any objection could be made, despite the existence of a permissible basis for the defense’s inquiry. For example, a topic of testimony was the methodology for determining the cost of medical treatment, such as what types of databases are available and what data they contain. It was in this context that defense counsel cross-examined plaintiff’s expert witness, asking: Q: Who is the—the largest provider—purchaser of healthcare services and products? A: I don’t know or even understand your question. Q: Okay. Well, Medicare is the entity that purchases the most— At this point, the trial court—before any objection from the plaintiff—cutoff defense counsel (“I’m going to stop you there.”). A sidebar was held, during which the trial judge expressed the belief that defense counsel had intended the use of the word Medicare as a means for the jury to believe that plaintiff’s medical care costs would be covered in the future. The trial court asked, “What is the relevance of Medicare and all of this to this case?” to which defense counsel responded, “I was going to ask him if he consulted the Medicare in reference to the cost of the type of items that he put in his health care plan.” Defense counsel said the question “was only to establish[] that [the expert] didn’t consider a major database of prices and went to some other source instead.”

An inquiry about whether an expert used a database that includes Medicare reimbursement rates, by itself, may be benign in this context. Because cross-examination was halted, it cannot be determined whether defense counsel’s inquiry would have been benign or for an improper purpose.¹