Fisher v. Smithson

• Decision Date: 19 February 2003
• Docket Number: No. 4D02-1946.,4D02-1946.
• Citation: 839 So.2d 788
• Parties: Richard FISHER, M.D., Appellant, v. Claudia SMITHSON, John Smithson and Eric Smithson, a minor, by Claudia Smithson and John Smithson, as natural guardians and next of kin, Appellees.
• Court: Florida District Court of Appeals

839 So.2d 788

Richard FISHER, M.D., Appellant, v. Claudia SMITHSON, John Smithson and Eric Smithson, a minor, by Claudia Smithson and John Smithson, as natural guardians and next of kin, Appellees.

No. 4D02-1946.

District Court of Appeal of Florida, Fourth District.

February 19, 2003.

Rehearing Denied March 25, 2003.

Shelley H. Leinicke of Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellant.

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellees.

STEVENSON, J.

This appeal involves the issue of whether the trial judge abused her discretion in granting the plaintiffs' motion for new trial based on the trial judge's conclusion that the jury's verdict was contrary to the weight of the evidence. The primary liability issue at trial centered around whether the defendant, Dr. Fisher, should have recognized that Claudia Smithson's symptoms were related to a cardiac condition and ordered testing and treatment therefor. Smithson suffered a heart attack shortly after being seen by Dr. Fisher and treated for what Dr. Fisher concluded was a gastric condition. At the hearing on the motion for new trial, the trial judge reflected on the testimony adduced at trial and concluded that the verdict was contrary to the manifest weight of the evidence. After considering the expert testimony and other evidence presented at trial, the trial judge concluded that Dr. Fisher should have recognized that Smithson's symptoms were cardiac related and should have ordered appropriate testing and treatment. The trial judge found that the jury's verdict finding no liability on the part of Dr. Fisher was against the manifest weight of the evidence. We affirm.

Appellant argues that the trial judge abused her discretion because she granted the motion for new trial merely because she didn't like the fact that the jury took only fifteen to twenty minutes to deliberate on this complex medical malpractice case. Certainly, the length of time within which a jury confers is not in and of itself sufficient grounds to grant a new trial. See Park v. Belford Trucking Co., 165 So.2d 819, 823 (Fla. 3d DCA 1964); see also Miner v. McKesson Corp., 784 So.2d 1156 (Fla. 2d DCA), review dismissed, 791 So.2d 1099 (Fla.2001). In the instant case, the contention that the trial judge granted the motion for new trial only because of the length of time that the jury deliberated is not fully borne out by the record. Although the trial judge said that she "might" not have granted the motion for new trial had the jury took longer to deliberate, these comments must be interpreted as no more than extraneous judicial musings in light of her clear and definite statement that the verdict was contrary to the weight of the evidence as she perceived it during the trial. Here, we conclude that the trial judge did not abuse her broad discretion in ruling on the motion for new trial and affirm. See Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999)(stating that the trial judge's broad discretion permits the granting of a new trial even though it is not "clear, obvious, and indisputable that the jury was wrong").

AFFIRMED.

FARMER, J., concurs.

HAZOURI, J., dissents with opinion.

HAZOURI, J., dissenting.

I respectfully dissent. The majority relies on Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999), for...