Opinion
No. 98-911.
Opinion filed August 4, 1999.
On appeal from the Circuit Court for Dade County, Lawrence A. Schwartz, Judge, L.T. No. 93-20022.
Fowler, White, Burnett, Hurley, Banick Strickroot, and Steven E. Stark, for the appellant.
Russo, Wells Associates, Lee K. Goldstein, for the appellee.
Before NESBITT, FLETCHER, and SHEVIN, JJ.
Carlos A. Gonzalez, M.D., who was the defendant and prevailing party below in this wrongful death action, appeals the trial court's order granting plaintiff Gliceria Ravirifici's motion for a new trial following a jury verdict for Dr. Gonzalez. In its order, the trial court agreed with Ravirifici that the verdict was against the manifest weight of the evidence and that defense counsel made improper comments amounting to fundamental error during summation. We agree with Dr. Gonzalez that the trial court's order is insufficient, as it merely states its conclusions without explanation or elaboration. However, we decline to relinquish jurisdiction back to the trial court, as we find that its order setting aside the jury verdict and granting a new trial because the verdict was against the manifest weight of the evidence is unreasonable in light of the facts of this case. In short, no such legitimate findings could be made from this record. Consequently, we reverse.
Ms. Ravirifici brought this wrongful death/medical malpractice action as the personal representative of the estate of her daughter, Maria Medina. The suit alleged that Dr. Gonzalez, an anesthesiologist, negligently caused thirty-three-year-old Maria's death during a routine laparoscopy to reverse a tubal ligation. Maria's gynecologist, Dr. Jorge Coranado, had performed the surgery, with Dr. Gonzalez as the anesthesiologist. A rare but known complication of a laparoscopy, which involves the use of carbon dioxide (CO2) gas to distend the patient's abdomen, is CO2 embolism. During the surgery, Maria became cyanotic — her skin turned a dark blue — indicating a lack of oxygen in the blood. Maria's blood pressure plummeted and shortly thereafter her heart arrested. Despite the fact that resuscitative efforts by Dr. Gonzalez eventually restarted Maria's heart, she suffered massive and irreparable brain damage and died the next day.
The timing of Dr. Gonzalez's resuscitative efforts formed the crux of the malpractice dispute. The version of events posited by Ravirifici was that a fifteen-minute period elapsed between the time Maria's blood pressure fell dangerously low and when Dr. Gonzalez began CPR, and that fifteen minutes was too long a time period. The hospital "code sheet" indeed indicated 11:40 as the time Maria's pressure dropped and 11:55 as the time CPR was begun. Ravirifici's expert witness testified that this fifteen-minute lapse fell below the standard of care and likely caused Maria's death. Nonetheless, there was abundant evidence disputing that this fifteen-minute lapse occurred.
Dr. Gonzalez could not specifically deny the times on the "code sheet," nor could he vouch for the times. As he explained in his testimony, he was busy trying to save Maria, not looking at the times; thus, the exact times were not precisely recorded. Both Gonzalez and his expert witness testified that the times on hospital "code sheets" are often inaccurate, as they are written down after the crisis has passed. Gonzalez further testified that he had begun resuscitative efforts immediately — as soon as Maria's blood pressure dropped. He first used drugs, including Atropine and Isuprel, in an attempt to bring the pressure back up. As soon as it became apparent that the drugs were not working, Gonzalez testified, he began CPR. Gonzalez's expert emphasized that all the actions taken were appropriate to the situation and that Gonzalez's care of the patient during this crisis was proper.
"A verdict is against the manifest weight of the evidence only when it is clear, obvious, and indisputable that the jury was wrong." Andrews v. Tew, 512 So.2d 276, 278 (Fla. 2d DCA 1987). Here, it was not clear, obvious or indisputable that the jury was wrong. Dr. Gonzalez disputed Ravirifici's version of events. The jury apparently found Dr. Gonzalez's testimony, and the other evidence he presented through his expert, credible. We find that the jury's verdict was supported by substantial competent evidence. Further, while we acknowledge the trial judge's broad discretion in this area, see Cloud v. Fallis, 110 So.2d 669 (Fla. 1959), we find that, in this particular case, that discretion was abused.
Plainly, the evidence set forth below demonstrated that Dr. Gonzalez took immediate resuscitative action once Maria Medina's "routine" operation escalated into a medical crisis. Also, there was no question that once the medications administered to Medina by Gonzalez had no effect, Gonzalez immediately began CPR — in this instance by external heart massage. Therefore, the trial court's finding that the verdict was against the manifest weight of the evidence was unreasonable and an abuse of discretion.
While the trial court may have disagreed with the jury's verdict for Dr. Gonzalez, that disagreement does not give the court the right to "veto" the verdict when there was evidence to support it. See Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla. 1978)
The trial court's conclusory order granting Ravirifici's motion for a new trial — an order without any explanation of why the jury verdict for Dr. Gonzalez was against the manifest weight of the evidence — further complicates matters, and brings the Wackenhut rationale into play. In Wackenhut, as here, there was no explanation in the trial court's order granting a new trial. The Supreme Court stated:
Setting aside a jury verdict . . . requires more than a cursory disposition . . . that "the verdict is contrary to the evidence." [citing Hodge v. Jacksonville Terminal Co., 234 So.2d 645, 647 (Fla. 1970)]. . . . The record must affirmatively show the impropriety of the verdict or there must be an independent determination by the trial judge that the jury was influenced by considerations outside the record. In other words, the trial judge does not sit as a seventh juror with veto power. His setting aside a verdict must be supported by the record . . . or by findings reasonably amenable to judicial review. Not every verdict which raises a judicial eyebrow should shock the judicial conscience. [citing Laskey v. Smith, 239 So.2d 13, 14]
Wackenhut, 359 So.2d at 435. On our review of the record here, there is no support for the trial court's conclusion that the verdict for Dr. Gonzalez was against the manifest weight of the evidence, nor support for any conclusion that the verdict should have "shocked" the judicial conscience.
We view the other ground for ordering a new trial — improper comments by defense counsel during closing — as unpreserved and, further, without merit. Ravirifici's attorney did not contemporaneously object to any of these comments. Instead, he strategically chose to rebut the comments, characterizing them as "personal attacks." As the Fourth District observed in Nelson v. Reliance Ins. Co., 368 So.2d 361, 362 (Fla. 4th DCA 1978):
We view with some skepticism appellant's agonized cries that comment by opposing counsel below deprived him of a fair and impartial trial, when not so much as an objection was deemed necessary upon the occasion of the supposedly fatal utterances. We assume that silence from an experienced counsel is a judgment play predicated on his or her concept of how the trial is going. As such, failure to object constitutes intentional trial tactics, mistakes of which are not to be corrected on appeal simply because they backfire, save in the most rare of circumstances.
Moreover, although we find some of the comments inappropriate, they were not so egregious — either individually or collectively — as to constitute fundamental error.
For the reasons stated herein, we reverse, and remand with instructions to reinstate the jury's verdict.
FLETCHER, J. concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
I dissent. I would affirm the order granting a new trial.
I.
The majority fails to apply the proper standard in reviewing the order granting a new trial based on a finding that the verdict is against the manifest weight of the evidence. The majority overlooks the rule set forth in E.R. Squibb Sons, Inc. v. Farnes, 697 So.2d 825 (Fla. 1997), which states that "[t]he mere showing that there was evidence in the record to support the jury verdict does not demonstrate an abuse of discretion." Farnes, 697 So.2d at 826 (emphasis omitted) (quoting Smith v. Brown, 525 So.2d 868, 870 (Fla. 1988)). Farnes reiterates the circumstances under which a trial court should grant a new trial if the manifest weight of the evidence is contrary to the verdict and the standard of review for such an order:
Clearly, it is a jury function to evaluate the credibility of any given witness. Moreover, the trial judge should refrain from acting as an additional juror. Nevertheless, the trial judge can and should grant a new trial if the manifest weight of the evidence is contrary to the verdict. In making this decision, the trial judge must necessarily consider the credibility of the witnesses along with the weight of all of the other evidence. The trial judge should only intervene when the manifest weight of the evidence dictates such action. However, when a new trial is ordered, the abuse of discretion test becomes applicable on appellate review. The mere showing that there was evidence in the record to support the jury verdict does not demonstrate an abuse of discretion.
Id. at 826 (quoting Smith v. Brown, 525 So.2d 868, 870 (Fla. 1988)). E.g., Rivera v. White, 386 So.2d 1233 (Fla. 3d DCA 1980). As the supreme court stated in Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla. 1981), a district court's inquiry whether the evidence supports the verdict
is relevant to review of the trial court's grant of a directed verdict, but not to the alternative grant of a new trial. We have stated and restated the appropriate standard for district courts on review of a trial court's motion granting a new trial. The test is whether the trial court abused its "broad discretion." If reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion.
Second, in reviewing an order granting a new trial, the appellate court must view the evidence as a whole. See Smith v. Brown, 525 So.2d at 890. It appears that the majority considered the evidence presented by Dr. Gonzalez instead of considering all of the evidence presented by the parties.
II.
The record does not demonstrate that the court abused its discretion in granting the new trial motion. At the outset, it must be noted that contrary to the majority's holding that the trial court abused its discretion because the verdict is supported by substantial competent evidence, the substantial competent evidence test is not the proper standard to review a new trial order. See Rivera v. White, 386 So.2d at 1233. The majority bases the reversal on (1) Dr. Gonzalez's testimony that he could not vouch for or deny the accuracy of the times set forth in the code sheet; therefore, the exact times were not recorded; (2) the testimony of Dr. Gonzalez and his expert that "code sheets" are often inaccurate; (3) Dr. Gonzalez's testimony that he began CPR as soon as it became apparent that the drugs were not working; and (4) the defense expert's testimony that Dr. Gonzalez's care was proper.
Although the majority notes that the order is conclusory, it declines to relinquish jurisdiction for the trial court to set forth its reasons for granting the new trial motion. However, the majority opinion later states that the conclusory order "complicates matters and brings the Wackenhut rationale into play." Slip op. at 5. However, Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla. 1978), does not prescribe a different standard; it merely holds that "[o]rders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused." Wackenhut, 359 So.2d at 435.
The record indicates that a nurse, not Dr. Gonzalez, administered CPR to Maria Medina.
First, Dr. Gonzalez's testimony as to the times in the code sheet does not support the jury verdict. Dr. Gonzalez merely stated that he had no recollection of the times, that he couldn't testify as to the accuracy of the code sheet, and that those times are often inaccurate. In essence, this testimony amounted to no evidence on this point and ignores plaintiff's expert testimony that the code sheet times were corroborated by the nurse's statements concerning the recorded times. Contrary to the majority's assertion that "abundant evidence disput[es] that this fifteen-minute lapse occurred," slip op. at 3, Dr. Gonzalez's lack of recall does not amount to "abundant evidence." See Metropolitan Dade County v. Blumenthal, 675 So.2d 598, 608 (Fla. 3d DCA 1995), review dismissed, 680 So.2d 421 (Fla. 1996).
Contrary to Dr. Gonzalez's assertion, Nurse Blanco's deposition statements, as testified to by plaintiff's expert, were properly before the court. Her testimony is the type properly relied on by an expert in reaching his opinion. See Sikes v. Seaboard Coast Line R.R., 429 So.2d 1216, 1122-23 (Fla. 1st DCA),review denied, 440 So.2d 353 (Fla. 1983).
Second, the testimony regarding possible code sheet inaccuracies does not support the verdict. Neither Dr. Gonzalez's failure to recall specific times, nor his expert's statements as to code sheets in general, rebut the medical records corroborated by the nurse who recorded the times. Despite Dr. Gonzalez's protestations to the contrary, plaintiff's expert based his opinion on Dr. Gonzalez's testimony and the medical records reflecting Maria Medina's vital signs. There were no assumptions underlying this testimony. Defendant's expert unequivocally stated that his speculation regarding possible code sheet inaccuracies was based on his assumption that code sheet recording procedures in Florida might be as sloppy as those he was familiar with in Texas. This testimony is hardly factual support for the jury verdict. See Rodriguez v. Pino, 634 So.2d 681 (Fla. 3d DCA), review denied, 645 So.2d 454 (Fla. 1994).
During direct examination, plaintiff's expert testified:
[PLAINTIFF'S COUNSEL]: And does the code sheet indicate when CPR was begun?
[PLAINTIFF'S EXPERT]: Yes, at 11:55 and that was corroborated by testimony I believe was Nurse Blanco who was the one who initiated external cardiac massage.
And so from here at 11:40 until 11:50, if Dr. Gonzalez's testimony is correct, there was a 74/40 blood pressure or 65/40 blood pressure within minutes of this event, does the chart reflect that no CPR or any kind of drug was given for a period of 10 minutes?
That's correct.
And so is that why this patient resulted with brain damage, in your opinion that she suffered?
That combined with the inappropriate drug therapy that was instituted at 11:50. (Emphasis added).
On cross-examination, Dr. Gonzalez's expert testified that he read the nurse's deposition:
[PLAINTIFF'S COUNSEL]: So it is your job, Doctor, to come into a courtroom in Florida from Texas and say that you believe that what this nurse said was inaccurate?
[DEFENDANT'S EXPERT]: No, it is not my job to do that.
Q. Well, that's what you're suggesting?
A. I'm suggesting that the entire timing of the record may be off.
Q. May?
A. Relative to the anesthetic record. There's no way for me to know that for sure.
Q. Well, it is a bit more reliable to ask that question of the people who were there and the people who handwrote the record and that person was Barbara Blanco, right?
A. Correct.
Q. And you're not going to come in here and stating your opinion even if you are an anesthesiologist from something that she factually said she saw and wrote and used the clock to check to chart, are you?
A. No, I'm not.
[T. 745-46]
Moreover, there is no evidence that Dr. Gonzalez began CPR as soon as it was apparent that Maria Medina's condition was not improving with the drugs. Plaintiff's expert testified that it was imperative to begin CPR as soon as the drugs administered failed to have their desired effect; he stated that Dr. Gonzalez should have administered CPR between 11:40 and 11:55 a.m. based on Dr. Gonzalez's testimony that Maria Medina's blood pressure fell to a dangerously low level during that time period. In opining that Dr. Gonzalez's care fell below the appropriate standard, the expert stated that "the failure to begin external cardiac massage at a time when the blood pressure was noted to be so low that the brain couldn't possibly be profused adequately . . . represented a deviation." Thus, the expert testified that it was necessary to begin CPR before Maria Medina's condition deteriorated into cardiac arrest. In fact, Dr. Gonzalez's own testimony establishes that he did not begin CPR until after Maria Medina was already in cardiac arrest. He stated that
As soon as Dr. Garcia-Rameu came into the room we give the patient Isuprel when I told him that we had, I feared an air embolism. And then, after Isuprel was give, a small amount because we didn't have enough time to give that much of a drug, then the patient went flat line of the EKG, a total cardiac arrest. We started resuscitation, we gave the epinephrine, we started the chest compressions and, as I said, one thing lead to the other. As far as the times, I don't know, I cannot dispute or agree with that. I can say that much.
This testimony demonstrates that CPR began only after Maria Medina went into "total cardiac arrest." Thus, there is no record evidence that Dr. Gonzalez began CPR before that event. The absence of such evidence belies Dr. Gonzalez's bare contention that the immediate and continuous actions he took in response to the patient's condition were not negligent.
In his brief, Dr. Gonzalez asserts that he began CPR before cardiac arrest occurred. In support of that assertion, he cites to his trial testimony:
The blood pressure did drop. After that I gave Atropine, she became cyanotic, then bradycardic, then the blood pressure dropped. [You] asked me how many minutes this and that, I cannot be specific. We were in a crisis situation, and you're asking me to tell you minutes, something that happened four, five years ago I cannot do.
Obviously, this testimony does not establish that CPR began before cardiac arrest occurred.
Third, the defense expert's testimony does not establish that Dr. Gonzalez performed CPR timely. The defense expert gave no opinion concerning the timely administration of CPR. See North Broward Hosp. Dist. v. Royster, 544 So.2d 1131 (Fla. 4th DCA 1989). Thus, his testimony does not support the verdict.
Finally, the majority's statement that the jury found Dr. Gonzalez's evidence credible is not dispositive of the issue on appeal. Farnes dictates that it is within the trial court's purview to consider the credibility of the witnesses. See Clough v. Christopher, 711 So.2d 610 (Fla. 5th DCA 1998). Therefore, that rationale does not support the majority's conclusion that the court abused its discretion in granting a new trial.
In conclusion, the mere fact that there is record evidence to support the jury verdict does not demonstrate that the trial court abused its discretion. Farnes, 697 So.2d at 826; Rivera v. White, 386 So.2d at 1233(court affirmed new trial order where trial court was entitled to conclude from its uniquely superior vantage point that verdict was against manifest weight of the evidence when evidence establishes with considerable force, although not without contradiction, that defendant was negligent). Moreover, when the "evidence" the majority relies on is stripped of all bolstering and unsupported assumption, it becomes clear that it amounts to no evidence at all. Assuming, arguendo, that there was some evidence to support the verdict, as in Farnes, a "review of the record shows that . . . there also was extensive evidentiary support for the trial court's ruling. In fact, the key piece of information, i.e., [that CPR should have been instituted when Maria Medina's blood pressure fell to dangerously low levels and that it was not begun until Maria Medina was in total cardiac arrest], was uncontroverted." Farnes, 697 So.2d at 827-28. Therefore, the record establishes that "the manifest weight of the evidence dictates such action." Id. Hence, the court did not abuse its discretion in granting a new trial.
III.
I also disagree with the majority's conclusion that a new trial was not warranted by defense counsel's closing argument: accusing plaintiff's counsel of setting up smokescreens, of unfairly attacking defendant, of not wanting a fair trial, and of not wanting the jury to look at the issues or to be fair to defendant. "[D]erogatory comments specifically attacking the integrity of opposing counsel constitute fundamental error, depriving the plaintiffs of a fair trial." Owens-Corning Fiberglas Corp. v. Morse, 653 So.2d 409, 411 (Fla. 3d DCA),review denied, 662 So.2d 932 (Fla. 1995). See Owens-Corning Fiberglas Corp. v. Crane, 683 So.2d 552 (Fla. 3d DCA 1996). Moreover, the majority misplaces its reliance on Nelson v. Reliance Ins. Co., 368 So.2d 361 (Fla. 4th DCA 1978). Recently, the Fourth District stated its disagreement with the Third District's case, Borden, Inc. v. Young, 479 So.2d 850 (Fla. 3d DCA 1985), review denied, 488 So.2d 832 (Fla. 1986), and its progeny, which grant new trials based on unobjected-to argument; the court noted that "[i]n the thirty-three years since [the Fourth District] was created, it has never granted a new trial in a civil case grounded solely on improper argument where there was no objection during trial." Murphy v. International Robotics Sys., Inc., 710 So.2d 587, 587 (Fla. 4th DCA), review granted, 722 So.2d 193 (Fla. 1998). See Fravel v. Haughey, 727 So.2d 1033 (Fla. 5th DCA 1999). The majority's reasoning on this ground does not support reversal.
Accordingly, I would affirm the order.