final until disposition of timely filed motion for rehearing.
Appeals from the Circuit Court for Miami-Dade County,
Jacqueline Hogan Scola, Judge. Lower Tribunal No. 13-34758
& Pintaluga, P.A., and Blair M. Dickert (Boca Raton), for
Scott & Kissane, P.A., and Therese A. Savona (Orlando),
FERNANDEZ, SCALES, and HENDON, JJ.
Araujo ("Araujo"), in this consolidated appeal,
seeks to reverse a final judgment in her favor (3D18-204) and
to remand for a new trial, and to reverse the trial
court's denial of her motion for attorney's fees
(3D18-2475). We affirm both.
slipped and fell at a Winn-Dixie grocery store and filed a
one-count complaint against Winn-Dixie for premises
liability. After the trial court denied Araujo's motion
for mistrial, the jury found Araujo to be 50% negligent and
Winn-Dixie to be 50% negligent, and awarded Araujo $231,
435.13 in damages. Araujo moved for attorney's fees
pursuant to Florida Rule of Civil Procedure 1.380(c) for
Winn-Dixie's alleged failure to serve answers to
interrogatories, which the trial court denied after a
appeal from the final judgment, Araujo raises five claims of
error: 1) improper comments in Winn-Dixie's opening and
closing statements; 2) improper admission of workers'
compensation documents; 3) improper questions about the
timing of Araujo's retention of counsel; 4) improper
cross-examination of Araujo's treating physician; and 5)
cumulative errors warranting a new trial. After a thorough
examination of the record on appeal, we find none of these
claims to have legal merit.
court's denial of a motion for mistrial and a motion for
new trial based on improper opening and closing statements is
reviewed for an abuse of discretion. R.J. Reynolds
Tobacco Co. v. Calloway, 201 So.3d 753, 759 (Fla. 4th
DCA 2016). "Generally, a mistrial or new trial should be
granted only when counsel's arguments are so inflammatory
and prejudicial that they deny the opposing party a fair
trial." Bakery Assocs., Ltd. v. Rigaud, 906
So.2d 366, 367 (Fla. 3d DCA 2005) (quoting Maksad v.
Kaskel, 832 So.2d 788, 793 (Fla. 4th DCA 2002)). When
assessing the comments, "[c]ontext is crucial. To
determine whether the challenged statements and arguments
were in fact prejudicial, the statements cannot be evaluated
in isolation but must be placed and evaluated in
context." Engle v. Liggett Grp., Inc., 945
So.2d 1246, 1272 (Fla. 2006); see also Las Olas Holding
Co. v. Demella, 228 So.3d 97, 107 (Fla. 4th DCA 2017),
review denied, No. SC17-2100, 2018 WL 985951 (Fla.
Feb. 20, 2018).
motion for mistrial was based, in part, on Winn-Dixie's
comment in its opening statement that if Araujo did not
recover damages, her doctors would not get paid because they
were treating her under letters of protection. Araujo
objected to this at trial, and the objection was sustained.
This comment, however, is not so inflammatory and prejudicial
that it vitiates the fairness of the subsequent four days of
trial. Further, Winn-Dixie's opening comments about
Araujo's actions while on the premises went to
Winn-Dixie's comparative negligence defense.
Winn-Dixie's comments in its opening and closing
statements were not pervasive, and were not so inflammatory
or prejudicial as to compromise the fairness of trial, and
Araujo did not ask for a curative instruction.
Araujo argues that certain workers' compensation
documents were erroneously admitted over objection, causing
irremediable prejudice and thus grounds for a new trial. The
record indicates that documents containing medical records
were admitted after Winn-Dixie agreed to redact any
references to workers' compensation, and to which
redactions Araujo agreed. Araujo's argument on this point
is conclusory and unsupported by any specifics, merely
reciting certain evidentiary statutes without connecting them
to any of the actual documents that were redacted and
admitted into evidence. The record indicates no prejudice to
Araujo as a result of the admission of the redacted
documents, and thus we find no abuse of discretion in their
admission to evidence.
called one of her treating physicians to testify. Dr. Roush,
an orthopedic surgeon, saw Araujo one month after the
slip-and-fall incident. On cross-examination, Winn-Dixie
asked about Dr. Roush's relationship with Araujo's
legal counsel, to inquire whether Dr. Roush got any income
from cases that the litigation firm referred to him. At
Araujo's objection, the trial court held a sidebar. The
trial court indicated that the Florida Supreme Court had
recently determined that counsel could inquire into Letters
of Protection, whether the doctor has a financial stake in
the litigation, as well as inquire into the number of
plaintiffs cases the doctor has handled. Dr. Roush could not
give any specific numbers, but agreed that he had testified a
number of times for plaintiffs and for Araujo's
relies on Worley v. Central Florida Young Men's
Christian Assoc., Inc., 228 So.3d 18 (Fla. 2017), for
the proposition that Winn-Dixie is precluded from inquiring
of the plaintiff's non-party physician the extent of his
or her financial connection to the plaintiff's law firm.
Araujo misstates the holding of Worley. That
slip-and-fall case involved the defendant YMCA asking the
plaintiff in deposition if she was referred to the
medical specialists by her counsel, in addition to
propounding interrogatories to the medical providers and
plaintiff's counsel in an effort to establish the
existence of a referral relationship between the attorneys
and the plaintiff's treating physicians. The