Araujo v. Winn-Dixie Stores, Inc.

• Decision Date: 16 October 2019
• Docket Number: 3D18-204,Nos. 3D18-2475,s. 3D18-2475
• Citation: 290 So.3d 936
• Parties: Juliana ARAUJO, Appellant, v. WINN-DIXIE STORES, INC., Appellee.
• Court: Florida District Court of Appeals

290 So.3d 936

Juliana ARAUJO, Appellant,

v.WINN-DIXIE STORES, INC., Appellee.

Nos. 3D18-2475

3D18-204

District Court of Appeal of Florida, Third District.

Opinion filed October 16, 2019.

Rehearing Denied December 5, 2019

Kanner & Pintaluga, P.A., and Blair M. Dickert (Boca Raton), for appellant.

Cole Scott & Kissane, P.A., and Therese A. Savona (Orlando), for appellee.

Before FERNANDEZ, SCALES, and HENDON, JJ.

HENDON, J.

Juliana 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.

Araujo 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 hearing.

In her 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 counsel¹ ; 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.

A trial 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).

Araujo's 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.

Next, 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.

Araujo 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 litigation firm.

Araujo 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 Worley court held the attorney-client privilege precludes defense counsel from asking a plaintiff whether his or her attorney referred the plaintiff to a particular doctor for treatment.

The facts before us are different. The Florida Supreme Court in Worley recognized that the defense is permitted to establish bias on the part of a treating physician by evidence of a Letter of Protection, whether all or a significant part of the provider's practice is pursuant to Letters of Protection, or whether the amounts charged are higher than usual for those treatments. Here, Winn-Dixie did not ask the plaintiff to disclose any referral relationship. Instead, Winn-Dixie asked Araujo's treating physician, a non-party, to testify about the percentage of his practice and income derived from referrals from the plaintiff's law firm. This line of questioning in order to establish a non-party witness' bias is not precluded by Worley. The witness admitted that he did some work for the plaintiff's law firm, but that there was no referral relationship with the plaintiff's law firm, and he was unable to provide any details. Even if that inquiry was in error, Araujo fails to show any prejudice or violation of attorney-client privilege as a result of the inquiry, and we conclude no reversible error occurred.

During the charge conference, Araujo asked for instruction 301.11(b), a burden-shifting instruction, to be read to the jury. That instruction provides:

b. Burden shifting presumption.

The court has determined that (name of party) had a duty to [maintain (describe missing evidence) ] [keep a record of (describe subject matter as to which party had record keeping duty) ]. (Name of party) did not [maintain (describe missing evidence) ] [or] [keep a record of (describe subject matter as to which party had recordkeeping duty) ].

Because (name of party) did not [maintain (describe missing evidence) ] [or] [[[keep a record of (describe subject matter as to which party had a record keeping duty) ], you should find that (name of invoking party) established [[[his] [her] (describe applicable claim or defense) unless (name of party) proves otherwise by the greater weight of the evidence.

Alternatively, Araujo requested the 301.11(a) instruction:

a. Adverse inference.

If you find that: (Name of party) [lost] [destroyed] [mutilated] [altered] [concealed] or otherwise caused the (describe evidence) to be unavailable, while it was within [his] [her] [its] possession, custody, or control; and the (describe evidence) would have been material in deciding the disputed issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to (name of party). You may consider this, together with the other evidence, in determining the issues of the case.

Araujo maintained that Winn-Dixie engaged in spoliation because it had not preserved the video footage for an hour prior and an hour after the incident. Winn-Dixie argued that neither instruction applied because the video had been preserved, admitted into evidence, and the jury had...